7–5–02 Friday Vol. 67 No. 129 July 5, 2002 Pages 44757–45048
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1 II Federal Register / Vol. 67, No. 129 / Friday, July 5, 2002
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2 III
Contents Federal Register Vol. 67, No. 129
Friday, July 5, 2002
Agriculture Department Defense Department See Animal and Plant Health Inspection Service See Army Department See Farm Service Agency See Engineers Corps See Food and Nutrition Service See Navy Department See Forest Service See Natural Resources Conservation Service Delaware River Basin Commission NOTICES NOTICES Agency information collection activities: Meetings and hearings, 44812 Proposed collection; comment request, 44795 Committees; establishment, renewal, termination, etc.: Education Department Rural America National Board, 44795–44796 RULES Elementary and secondary education: Animal and Plant Health Inspection Service Disadvantaged children; academic achievement NOTICES improvement, 45037–45047 Agency information collection activities: NOTICES Proposed collection; comment request, 44796–44797 Grants and cooperative agreements; availability, etc.: Environmental statements; availability, etc.: Elementary and secondary education— Oral rabies vaccination programs, 44797–44798 Voluntary Public School Choice Program, 44815–44817 Exportation and importation of animals and animal Women’s Educational Equity Program, 44812–44815 products: Special education and rehabilitative services— Classical swine fever; European Union risk analysis; Parents of children with disabilities; training and comment request, 44798–44799 information; correction, 44817 Postsecondary education: Army Department William D. Ford Federal Direct Loan Program— See Engineers Corps Income contingent repayment plan formula; annual NOTICES updates, 44817–44822 Patent licenses; non-exclusive, exclusive, or partially exclusive: Employment Standards Administration Assay for detecting, measuring, and monitoring activities NOTICES and concentrations of proteins and methods of use, Minimum wages for Federal and federally-assisted 44808 construction; general wage determination decisions, Force sensing treadmill, 44808–44809 44881–44883 Ricin vaccine and methods of making and using, 44809 Energy Department Blind or Severely Disabled, Committee for Purchase From See Energy Efficiency and Renewable Energy Office People Who Are See Federal Energy Regulatory Commission See Committee for Purchase From People Who Are Blind or Severely Disabled Energy Efficiency and Renewable Energy Office RULES Centers for Disease Control and Prevention Energy conservation: NOTICES Commercial and industrial equipment; energy efficiency Grants and cooperative agreements; availability, etc.: program— Antimicrobial Resistance; Applied Research, 44847 CSA International; electric motor efficiency; Autism and Other Developmental Disabilities classification determination, 45017–45028 Epidemiology; Centers of Excellence, 44847–44850 Underwriters Laboratories Inc.; electric motor National Violent Death Reporting System; development, efficiency; classification determination, 45027– 44850–44854 45036 Commerce Department Engineers Corps See National Oceanic and Atmospheric Administration NOTICES Environmental statements; notice of intent: Committee for Purchase From People Who Are Blind or Daguerre Point Dam, CA; Fish Passage Improvement Severely Disabled Project, 44809–44810 NOTICES Los Angeles County, CA; West Basin Marine Terminal Procurement list; additions and deletions, 44807–44808 improvement projects, 44810–44811 Commodity Futures Trading Commission Environmental Protection Agency RULES RULES Commodity pool operators and commodity trading Air pollutants, hazardous; national emission standards: advisors: Portland cement manufacturing industry Commodity pools; profile documents; disclosure; Correction and clarification, 44766–44769 correction Air quality planning purposes; designation of areas: Correction, 44931 Alaska, 44769–44770
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Water pollution control: Drew River Mill, Inc., 44827–44828 Ocean dumping; site designations— McDonough Power Cooperative, 44822 Atlantic Ocean offshore Wilmington, NC, 44770–44773 Midwest Independent Transmission System Operator, NOTICES Inc., et al., 44822 Agency information collection activities: Old Dominion Electric Cooperative, 44823 Proposed collection; comment request, 44828–44830 San Diego Gas & Electric Co. et al., 44823 Submission for OMB review; comment request, 44830– Transcontinental Gas Pipe Line Corp., 44823 44832 Utility Contract Funding, L.L.C., 44824 Environmental statements; availability, etc.: Weekly receipts, 44832 Federal Housing Finance Board Grants and cooperative agreements; availability, etc.: NOTICES New and Emerging Air Technologies Web Data Base, Meetings; Sunshine Act, 44842 44833–44836 Meetings: Federal Maritime Commission FIFRA Scientific Advisory Panel, 44836–44837 RULES Toxic and hazardous substances control: Passenger vessel financial responsibility: New chemicals; receipt and status information, 44837– Transportation nonperformance; financial responsibility 44842 requirements Self-insurance and sliding scale discontinuance and Farm Service Agency guarantor limitations, 44774–44776 NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Agreements; additional information requests: Horse Breeder Loan Program, 44799–44804 Eastern Car Liner/Fesco Ocean Management Ltd. et al., Federal Aviation Administration 44843 Agreements filed, etc., 44842–44843 NOTICES Airport noise compatibility program: China; shipping restrictions; requirements and practices, Noise exposure maps— 44843–44844 Brownsville/South Padre Island International Airport, Ocean transportation intermediary licenses: TX, 44922–44923 All Flags Forwarding Inc. et al., 44844–44845 Seattle-Tacoma International Airport, WA, 44923–44924 Go-Trans (New York) Ltd. et al., 44845 Aviation insurance: Federal Reserve System Third party war risk liability insurance, 44924–44925 Meetings: NOTICES Air Traffic Procedures Advisory Committee, 44925 Agency information collection activities: Passenger facility charges; applications, etc.: Reporting and recordkeeping requirements, 44845–44846 San Luis Obispo County Regional Airport, CA, 44925– Banks and bank holding companies: 44926 Formations, acquisitions, and mergers, 44846 Federal Communications Commission Federal Retirement Thrift Investment Board RULES NOTICES Digital television stations; table of assignments: Meetings; Sunshine Act, 44846–44847 South Carolina, 44777 PROPOSED RULES Financial Management Service Digital television stations; table of assignments: See Fiscal Service Arizona, 44790–44791 West Virginia, 44791–44792 Fiscal Service Television stations; table of assignments: NOTICES Kansas, 44792 Surety companies acceptable on Federal bonds: Mississippi, 44790 Sorema North America Reinsurance Co., 44929 NOTICES Universal Bonding Insurance Co., 44929–44930 Meetings: North American Numbering Council, 44842 Fish and Wildlife Service PROPOSED RULES Federal Energy Regulatory Commission Endangered and threatened species: NOTICES Coastal cutthroat trout in Washington and Oregon; Electric rate and corporate regulation filings: withdrawn, 44933–44961 Logan Generating Co., L.P., et al., 44824–44825 NOTICES Environmental statements; availability, etc.: Endangered and threatened species and marine mammal Hydro Development Group, Inc., 44825–44826 permit applications, 44873 S.D. Warren Co., 44825 Endangered and threatened species permit applications, South Carolina Electric & Gas Co., 44825 44873–44874 Environmental statements; notice of intent: Marine mammal permit applications, 44874 Gustavus Electric Co., 44826–44827 Hydroelectric applications, 44827 Food and Drug Administration Practice and procedure: RULES Off-the-record communications, 44828 Animal drugs, feeds, and related products: Applications, hearings, determinations, etc.: Lincomycin Caledonia Generating, LLC, et al., 44822 Correction, 44931
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PROPOSED RULES See Land Management Bureau Human drugs: See Minerals Management Service Unapproved new investigational drug products; export requirements Justice Department Correction, 44931 NOTICES NOTICES Grant and cooperative agreement awards: Pollution control; consent judgments: Food Safety and Applied Nutrition Joint Institute, Acme Alloys et al., 44877 University of Maryland, 44854–44857 Fort James Operating Co., 44877–44878 Reports and guidance documents; availability, etc.: Indiana, Borough of, PA, 44878 Individual product labeling guidances; withdrawn, Pennsylvania Industrial Development Authority et al., 44857–44858 44878 Nasal spray and inhalation solution, suspension, and Scovill, Inc., 44878–44879 spray drug products; chemistry, manufacturing, and South Jersey Clothing Co., Inc., 44879 controls documentation, 44858–44859 Labor Department Food and Nutrition Service See Employment Standards Administration NOTICES NOTICES Child nutrition programs: Agency information collection activities: Child and adult care food program— Submission for OMB review; comment request, 44879– National average payment rates, day care home food 44881 service payment rates, etc., 44804–44805 Forest Service Land Management Bureau NOTICES NOTICES Environmental statements; notice of intent: Environmental statements; availability, etc.: Lincoln National Forest, NM, 44805 Trans-Alaska Pipeline System Right-of-Way Renewal; Monongahela National Forest, WV, 44805–44807 hearings schedule, 44874–44875 Meetings: Resource Advisory Committees— Maritime Administration Modoc, 44807 NOTICES Coastwise trade laws; administrative waivers: General Services Administration JEANNE PIERRE II, 44926–44927 NOTICES SPINDRIFT, 44927–44928 Travel and transportation; Household Goods Tender of TAI-PAN, 44928 Service: Centralized Household Goods Traffic Management Minerals Management Service Program; flat industrial funding fee converted to NOTICES percentage IFF; correction, 44931 Agency information collection activities: Health and Human Services Department Proposed collection; comment request, 44875–44877 See Centers for Disease Control and Prevention See Food and Drug Administration National Aeronautics and Space Administration See National Institutes of Health RULES See Substance Abuse and Mental Health Services Acquisition regulations: Administration Contractor performance information, 44777 NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Meetings: Family planning services, 45013–45016 Advisory Council Biological and Physical Research Committee, 44883– Housing and Urban Development Department 44884 PROPOSED RULES Public and Indian housing: National Archives and Records Administration Indian housing block grant allocation formula; negotiated RULES rulemaking committee; intent to establish, 44787– Federal claims collection, 44757–44765 44790 Records management: NOTICES Nixon Presidential materials; reproduction, 44765–44766 Agency information collection activities: Proposed collection; comment request, 44862–44871 Grants and cooperative agreements; availability, etc.: National Institutes of Health Facilities to assist homeless— NOTICES Excess and surplus Federal property, 44871 Inventions, Government-owned; availability for licensing, Mortgage and loan insurance programs: 44859–44860 Credit Watch Termination Initiative; list of mortgagees Meetings: whose Origination Approval Agreements have been National Center on Minority Health and Health terminated, 44871–44873 Disparities, 44860 National Institute of Mental Health, 44861 Interior Department National Institute on Alcohol Abuse and Alcoholism, See Fish and Wildlife Service 44860–44861
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National Oceanic and Atmospheric Administration Grants and cooperative agreements; availability, etc.: RULES Women’s Business Centers; financial counseling and Fishery conservation and management: other technical assistance, 44920 West Coast States and Western Pacific fisheries— Pacific Coast groundfish, 44778–44786 State Department PROPOSED RULES NOTICES Fishery conservation and management: Inmarsat and INTELSAT; intergovernmental satellite Alaska; fisheries of Exclusive Economic Zone— privatization effects; comment request, 44920–44921 Bering Sea and Aleutian Islands groundfish, 44794 Meetings: Northeastern United States fisheries— Public Diplomacy, U.S. Advisory Commission, 44921 Atlantic mackerel, squid, and butterfish, 44792–44794
Natural Resources Conservation Service State Justice Institute NOTICES NOTICES Environmental statements; availability, etc.: Meetings; Sunshine Act, 44921 Lower Clear Boggy Creek Watershed, OK, 44807 Substance Abuse and Mental Health Services Navy Department Administration NOTICES NOTICES Meetings: Grants and cooperative agreements; availability, etc.: Naval Academy, Board of Visitors, 44811–44812 Knowledge Dissemination Conference Program, 44861– 44862 Nuclear Regulatory Commission Mental Health Services Center— NOTICES Mental Health Services Needs of Older Adults; Meetings: National Technical Assistance Center; correction, Nuclear Waste Advisory Committee, 44884–44885 44862 Applications, hearings, determinations, etc.: Safety Light Corp., 44884 Surface Transportation Board NOTICES Public Debt Bureau Railroad operation, acquisition, construction, etc.: See Fiscal Service Morristown & Erie Railway, Inc., 44928–44929
Public Health Service Transportation Department See Centers for Disease Control and Prevention See Federal Aviation Administration See Food and Drug Administration See Maritime Administration See National Institutes of Health See Surface Transportation Board See Substance Abuse and Mental Health Services NOTICES Administration Aviation proceedings: Hearings, etc.— Securities and Exchange Commission Caribbean Star Airlines, Inc., 44921–44922 PROPOSED RULES Environmental statements; notice of intent: Securities: Shasta and Trinity Counties, CA, 44922 Financial information quality enhancement framework; auditing process oversight improvement, 44963– Treasury Department 45011 See Fiscal Service NOTICES Investment Company Act of 1940: Deregistration applications— Brazos Insurance Funds et al., 44885–44886 Separate Parts In This Issue Exemption applications— Vision Group of Funds et al., 44886–44888 Part II Joint industry plan: Interior Department, Fish and Wildlife Service, 44933– National Association of Securities Dealers, Inc., et al., 44961 44888–44900 Self-regulatory organizations; proposed rule changes: Part III American Stock Exchange LLC, 44900–44905 Securities and Exchange Commission, 44963–45011 International Securities Exchange, Inc., 44905–44906 National Association of Securities Dealers, Inc., 44906– Part IV 44916 New York Stock Exchange, Inc., 44916–44918 Health and Human Services Department, 45013–45016 Pacific Exchange, Inc., 44918–44919 Part V Small Business Administration Energy Department, Energy Efficiency and Renewable NOTICES Energy Office, 45017–45036 Disaster loan areas: Alaska, 44919 Part VI Massachusetts, 44920 Education Department, 45037–45047
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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.
10 CFR 431 (2 documents) ...... 45018, 45028 17 CFR 4...... 44931 Proposed Rules: 210...... 44964 229...... 44964 21 CFR 558...... 44931 Proposed Rules: 312...... 44931 24 CFR Proposed Rules: 1000...... 44787 34 CFR 200...... 45038 36 CFR 1201...... 44757 1275...... 44765 40 CFR 63...... 44766 81...... 44769 228...... 44770 46 CFR 540...... 44773 47 CFR 73...... 44777 Proposed Rules: 73 (4 documents) ...... 44790, 44791, 44792 48 CFR 1842...... 44777 50 CFR 300...... 44778 600...... 44778 660...... 44778 Proposed Rules: 17...... 44934 648...... 44792 679...... 44794
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Rules and Regulations Federal Register Vol. 67, No. 129
Friday, July 5, 2002
This section of the FEDERAL REGISTER debtor by NARA or other Federal to comments received within the contains regulatory documents having general agencies; comment period. applicability and legal effect, most of which • Referring the debt to a private This interim rule is a significant are keyed to and codified in the Code of collection contractor; and regulatory action for the purpose of Federal Regulations, which is published under • Referring the matter to the U.S. Executive Order 12866 and has been 50 titles pursuant to 44 U.S.C. 1510. Department of Justice (DOJ) for reviewed by the Office of Management The Code of Federal Regulations is sold by initiation of a judicial proceeding and Budget. As required by the the Superintendent of Documents. Prices of against the debtor. Regulatory Flexibility Act, I certify that new books are listed in the first FEDERAL In addition, these regulations describe these regulations will not have a REGISTER issue of each week. the actions necessary for NARA to take significant economic impact on a collection actions on behalf of another substantial number of small entities. Federal agency. These actions could This rule has no federalism NATIONAL ARCHIVES AND RECORDS include making offsets against the salary implications. This rule is not a major ADMINISTRATION of a NARA employee or any other rule. amounts owed by NARA to the debtor. Please submit Internet comments 36 CFR Part 1201 These regulations also provide that within the body of your email message RIN 3095–AA77 NARA may enter into a cross-servicing or as an attachment. Please also include agreement with the Department of the ‘‘Attn: 3095–AA76’’ and your name and Debt Collection Treasury (Treasury) to take all of the return address in your Internet message. above-listed actions to collect debts for If you do not receive a confirmation AGENCY: National Archives and Records from the system that we have received Administration (NARA). NARA, or refer debts to a private debt collection agency. your Internet message, contact the ACTION: Interim final rule. These regulations implement the Regulation Comment desk at 301–713– 7360, ext. 240. SUMMARY: The National Archives and requirements of the Federal Claims Records Administration (NARA) is Collection Act of 1966 (Pub. L. 89–508, List of Subjects in 36 CFR Part 1201 80 Stat. 308) as amended by the Debt issuing regulations governing the Administrative practice and Collection Act of 1982 (Pub. L. 97–365, collection of debts owed to it and other procedures; Claims; Debts; Government 96 Stat. 1749) and the Debt Collection Federal agencies. Federal agencies are employees; Wages. required to try to collect debts owed to Improvement Act of 1996 (Pub. L. 104– the Federal government. These 134, 110 Stat. 1321). These regulations For the reasons set forth in the regulations describe actions that NARA are issued in conformity with the preamble, NARA is adding part 1201 to may take to collect debts, and apply, Federal Claims Collection Standards subchapter A of chapter XII, title 36, with certain exceptions, to any person issued by DOJ and the Treasury (31 CFR Code of Federal Regulations, as follows: Chapter IX, parts 900–904, 65 FR 70390 or entity. These regulations also provide PART 1201—COLLECTION OF CLAIMS that NARA may enter into a cross- (11/22/2000)). The regulations in this servicing agreement with the U.S. part are also issued in conformity with Subpart A—Introduction Department of the Treasury (Treasury) the regulations of the Office of Sec. under which the Treasury will take Personnel Management (OPM) on offsets 1201.1 Why is NARA issuing these authorized action to collect amounts against Federal employee salaries (5 regulations? owed to NARA. CFR part 550, subpart K), and the 1201.2 Under what authority does NARA Treasury regulations on Administrative issue these regulations? DATES: This rule is effective on: August 1201.3 What definitions apply to the 5, 2002. Comments are due by Wage Garnishment (31 CFR 285.11). NARA has determined that these regulations in this part? September 3, 2002. interim regulations pertain to agency 1201.4 What types of claims are excluded ADDRESSES: Comments must be sent to from these regulations? practice and procedure and are 1201.5 If a claim is not excluded from these Regulation Comments Desk (NPOL), interpretative in nature. The procedures Room 4100, Policy and regulations, may it be compromised, contained in these regulations for salary, suspended, terminated, or waived? Communications Staff, National tax refund, and administrative offsets 1201.6 What is a claim or debt? Archives and Records Administration, are mandated by law and by regulations 1201.7 Why does NARA have to collect 8601 Adelphi Road, College Park, MD promulgated by OPM, the Financial debts? 20740–6001. They may be faxed to 301– Management Service, and jointly by the 1201.8 What action might NARA take to 837–0319. You may also comment via collect debts? DOJ and the Treasury. Therefore, under 1201.9 What rights do I have as a debtor? the Internet to [email protected]. 5 U.S.C. 553(b)–(d), these regulations FOR FURTHER INFORMATION CONTACT: Kim are not subject to the Administrative Subpart B—General Provisions Richardson at telephone number 301– Procedures Act (APA) and the 1201.10 Will NARA use a cross-servicing 837–2902, or fax number 301–837–0319. requirements of the APA for a notice agreement with the Department of the SUPPLEMENTARY INFORMATION: Under and comment period and a delayed Treasury to collect its claims? these regulations, NARA may collect effective date. Nonetheless, NARA is 1201.11 Will NARA refer claims to the Department of Justice? debts owed to it through a number of delaying the effective date until 30 days 1201.12 Will NARA provide information to actions, including the following: following publication of these interim credit reporting agencies? • Making offsets against amounts, regulations, and will modify the 1201.13 How will NARA contract for including salary payments, owed to the regulations, if appropriate, in response collection services?
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1201.14 What should I expect to receive Subpart F—Administrative Wage salary offset regulations published by from NARA if I owe a debt to NARA? Garnishment the Office of Personnel and Management 1201.15 What will the notice tell me 1201.55 How will NARA collect debts at 5 CFR part 550, subpart K. regarding collection actions that might through Administrative Wage (e) All of these claims collection be taken if the debt is not paid within Garnishment? regulations are issued under NARA’s 60 days of the notice, or arrangements to Authority: 5 U.S.C. 5514; 31 U.S.C. 3701– authority under 44 U.S.C. 2104(a). pay the debt are not made within 60 days 3720A, 3720D; 44 U.S.C. 2104(a). of the notice? § 1201.3 What definitions apply to the 1201.16 What will the notice tell me about Subpart A—Introduction regulations in this part? my opportunity for review of my debt? As used in this part: 1201.17 What must I do to obtain a review § 1201.1 Why is NARA issuing these Administrative offset means of my debt, and how will the review regulations? withholding funds payable by the process work? (a) NARA is issuing these regulations United States (including funds payable 1201.18 What interest, penalty charges, and to inform the public of procedures that by the United States on behalf of a State administrative costs will I have to pay on may be used by NARA for the collection government) to, or held by the United a debt owed to NARA? of debt. 1201.19 How can I resolve my debt through States for, a person to satisfy a claim. voluntary repayment? (b) These regulations provide that Administrative Wage Garnishment 1201.20 What is the extent of the NARA will attempt to collect debts means a process whereby a Federal Archivist’s authority to compromise owed to it or other Government agencies agency may, without first obtaining a debts owed to NARA, or to suspend or either directly, or by other means court order, order an employer to terminate collection action on such including salary, administrative, tax withhold up to 15 percent of your wages debts? refund offsets, or administrative wage for payment to the Federal agency to 1201.21 May NARA’s failure to comply garnishment. satisfy a delinquent non-tax debt. with these regulations be used as a (c) These regulations also provide that Agency means a department, agency, defense to a debt? NARA may enter a cross-servicing court, court administrative office, or Subpart C—Salary Offset agreement with the U.S. Department of instrumentality in the executive, the Treasury (Treasury) under which the judicial, or legislative branch of 1201.30 What debts are included or Treasury will take authorized action to government, including a government excluded from coverage of these collect amounts owed to NARA. corporation. regulations on salary offset? Archivist means the Archivist of the 1201.31 May I ask NARA to waive an § 1201.2 Under what authority does NARA United States, or his or her designee. overpayment that otherwise would be issue these regulations? collected by offsetting my salary as a Certification means a written (a) NARA is issuing the regulations in statement received by a paying agency Federal employee? this part under the authority of 31 1201.32 What are NARA’s procedures for or disbursing official from a creditor U.S.C. Chapter 37, 3701–3720A and salary offset? agency that requests the paying agency 1201.33 How will NARA coordinate salary 3720D. These sections implement the or disbursing official to offset the salary offsets with other agencies? requirements of the Federal Claims of an employee and specifies that 1201.34 Under what conditions will NARA Collection Act of 1966, as amended by required procedural protections have make a refund of amounts collected by the Debt Collection Act of 1982 and the been afforded the employee. salary offset? Debt Collection Improvement Act of Claim (see definition of debt in this 1201.35 Will the collection of a claim by 1996. section). salary offset act as a waiver of my rights (b) NARA is also issuing the Compromise means the settlement or to dispute the claimed debt? regulations in this part to conform to the forgiveness of a debt. Subpart D—Tax Refund Offset Federal Claims Collection Standards Creditor agency means the agency to (FCCS), which prescribe standards for which the debt is owed, including a 1201.40 Which debts can NARA refer to the handling the Federal Government’s debt collection center when acting on Department of the Treasury for collection claims for money or property. The FCCS by offsetting tax refunds? behalf of the creditor agency. are issued by the Department of Justice 1201.41 What are NARA’s procedures for Day means calendar day. To count collecting debts by tax refund offset? (DOJ) and the Treasury at 31 CFR days, include the last day of the period Chapter IX, Parts 900–904. NARA unless it is a Saturday, a Sunday, or a Subpart E—Administrative Offset adopts those standards without change. Federal legal holiday. 1201.50 Under what circumstances will The regulations in this part supplement Debt collection center means the NARA collect amounts that I owe to the FCCS by prescribing procedures Treasury or any other agency or division NARA (or some other Federal agency) by necessary and appropriate for NARA designated by the Secretary of the offsetting the debt against payments that operations. Treasury with authority to collect debts NARA (or some other Federal agency) (c) NARA is also issuing the on behalf of creditor agencies. owes me? regulations in this part to conform to the Debt and claim are deemed 1201.51 How will NARA request that my standards for handling Administrative synonymous and interchangeable. These debt to NARA be collected by offset Wage Garnishment processing by the terms mean an amount of money, funds, against some payment that another Federal Government. The standards are or property that has been determined by Federal agency owes me? issued by the Treasury at 31 CFR an agency official to be due the United 1201.52 What procedures will NARA use to collect amounts I owe to a Federal 285.11. NARA adopts those standards States from any person, organization, or agency by offsetting a payment that without change. The regulations in this entity except another Federal agency. NARA would otherwise make to me? part supplement the standards by For the purpose of administrative offset 1201.53 When may NARA make an offset in prescribing procedures necessary and under 31 U.S.C. 3716 and subpart E of an expedited manner? appropriate for NARA operations. these regulations, the terms, ‘‘debt’’ and 1201.54 Can a judgment I have obtained (d) NARA is further issuing the ‘‘claim’’ also include money, funds or against the United States be used to regulations in this part under the property owed by a person to a State satisfy a debt that I owe to NARA? authority of 5 U.S.C. 5514, and the (including past-due support being
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enforced by a State); the District of Waiver means the cancellation, appropriate under the FCCS, or the use Columbia; American Samoa; Guam; the remission, forgiveness, or non-recovery of alternative dispute resolution United States Virgin Islands; the of a debt. methods if they are consistent with Commonwealth of the Northern Marina Withholding order means any order applicable law and regulations. Islands; or the Commonwealth of Puerto for withholding or garnishment of pay (b) An employee from requesting Rico. issued by an agency, or judicial or waiver of an erroneous payment under Debtor means a person, organization, administrative body. 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 or entity, except another Federal agency, U.S.C. 716, or from questioning the who owes a debt. Use of the terms ‘‘I,’’ § 1201.4 What types of claims are amount or validity of a debt, in the excluded from these regulations? ‘‘you,’’ ‘‘me,’’ and similar references to manner set forth in this part. the reader of the regulations in this part The following types of claims are are meant to apply to debtors as defined excluded: § 1201.6 What is a claim or debt? in this paragraph. (a) Debts or claims arising under the A claim or debt is an amount of Delinquent debt means a debt that has Internal Revenue Code (26 U.S.C. 1 et money, funds, or property that has been not been paid by the date specified in seq.) or the tariff laws of the United determined by an agency official to be NARA’s initial written demand for States, or the Social Security Act (42 due the United States from any person, payment or applicable agreement or U.S.C. 301 et seq.); except as provided organization, or entity except another instrument (including a post- under sec. 204(f) and 1631 (42 U.S.C. Federal agency (see § 1201.3). 404(f) and 1383(b)(4)(A)). delinquency payment agreement), § 1201.7 Why does NARA have to collect unless other satisfactory payment (b) Any case to which the Contract Disputes Act (41 U.S.C. 601 et seq.) debts? arrangements have been made. Federal agencies are required to try to Disposable pay means the part of an applies; (c) Any case where collection of a collect claims of the Federal employee’s pay that remains after Government for money, funds, or deductions that are required to be debt is explicitly provided for or provided by another statute, e.g., travel property arising out of the agency’s withheld by law have been made. activities. Employee means a current employee advances under 5 U.S.C. 5705 and of an agency, including a current employee training expenses under 5 § 1201.8 What action might NARA take to member of the Armed Forces or Reserve U.S.C. 4108, or, as provided for by title collect debts? 11 of the United States Code, when the of the Armed Forces of the United (a) There are a number of actions that claims involve bankruptcy; States. NARA is permitted to take when (d) Any debt based in whole or in part Federal Claims Collection Standards attempting to collect debts. These on conduct in violation of the antitrust (FCCS) means the standards currently actions include: laws or involving fraud, the published by DOJ and the Treasury at 31 (1) Salary, tax refund or presentation of a false claim, or CFR parts 900–904. administrative offset, or administrative misrepresentation on the part of the NARA means the National Archives wage garnishment (see subparts C, D, E, debtor or any party having an interest in and Records Administration. and F of this part respectively); or the claim, as described in the FCCS, Paying agency means any agency that (2) Using the services of private unless DOJ authorizes NARA to handle is making payments of any kind to a collection contractors. the collection; debtor. In some cases, NARA may be (b) In certain instances, usually after (e) Claims between Federal agencies; both the creditor agency and the paying collection efforts have proven (f) Unless otherwise provided by law, agency. unsuccessful, NARA transfers debts to administrative offset of payments under Payroll office means the office that is the Treasury for collection or refers the authority of 31 U.S.C. 3716 to collect primarily responsible for payroll records them to the DOJ for litigation (see a debt may not be initiated more than and the coordination of pay matters §§ 1201.10 and 1201.11). 10 years after the Government’s right to with the appropriate personnel office. collect the debt first accrued. § 1201.9 What rights do I have as a Person includes a natural person or (Exception: The 10-year limit does not debtor? persons, profit or non-profit apply if facts material to the Federal corporation, partnership, association, As a debtor you have several basic Government’s right to collect the debt trust, estate, consortium, state or local rights. You have a right to: were not known and could not government, or other entity that is (a) Notice as set forth in these reasonably have been known by the capable of owing a debt to the United regulations (see § 1201.14); official or officials of the Government States; however, agencies of the United (b) Inspect the records that NARA has who were charged with the States are excluded. used to determine that you owe a debt responsibility to discover and collect Private collection contractor means a (see § 1201.14); such debts.) The 10-year limitation also (c) Request review of the debt and private debt collector under contract does not apply to debts reduced to a with an agency to collect a non-tax debt possible payment options (see judgement; and § 1201.17); owed to the United States. (g) Unless otherwise stated, claims Salary offset means a payroll (d) Propose a voluntary repayment which have been transferred to Treasury agreement (see § 1201.19); and/or procedure to collect a debt under 5 or referred to the Department of Justice U.S.C. 5514 and 31 U.S.C. 3716 by (e) Question if the debt is excluded will be collected in accordance with the from these regulations (see § 1201.5(b)). deduction(s) at one or more officially procedures of those agencies. established pay intervals from the Subpart B—General Provisions. current pay account of an employee, § 1201.5 If a claim is not excluded from without his or her consent. these regulations, may it be compromised, § 1201.10 Will NARA use a cross-servicing Tax refund offset means the reduction suspended, terminated, or waived? agreement with the Department of the of a tax refund by the amount of a past- Nothing in this part precludes: Treasury to collect its claims? due legally enforceable debt owed to (a) The compromise, suspension, or (a) NARA may enter into a cross- NARA or any other Federal agency. termination of collection actions, where servicing agreement that authorizes the
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Treasury to take the collection actions (2) Provides the notice required under (c) Requires the contractor to account described in this part on behalf of § 1201.14 if a current address is accurately and fully for all amounts NARA. This agreement will describe available; and collected; and procedures that the Treasury uses to (3) Obtains satisfactory assurances (d) Requires the contractor to provide collect debts. The debt collection from the credit reporting agency that it to NARA, upon request, all data and procedures that the Treasury uses are complies with the Fair Credit Reporting reports contained in its files related to based on 31 U.S.C. chapter 37. Act (15 U.S.C. 1681 et seq.) and other its collection actions on a debt. (b) NARA must transfer to the Federal laws governing the provision of Treasury any debt that has been credit information. § 1201.14 What should I expect to receive from NARA if I owe a debt to NARA? delinquent for a period of 180 days or (c) At the time debt information is more so that the Secretary of the submitted to a credit reporting agency, (a) NARA will send you a written Treasury may take appropriate action to NARA provides a written statement to notice when we determine that you owe collect the debt or terminate collection the reporting agency that all required a debt to NARA. The notice will be action. NARA may also transfer to the actions have been taken. In addition, hand-delivered or sent to you at the Treasury any debt that is less than 180 NARA thereafter ensures that the credit most current address known to NARA. days delinquent. reporting agency is promptly informed The notice will inform you of the (c) Paragraph (b) of this section will of any substantive change in the following: not apply to any debt or claim that: conditions or amount of the debt, and (1) The amount, nature, and basis of (1) Is in litigation or foreclosure; promptly verifies or corrects the debt; (2) Will be disposed of under an information relevant to the debt. (2) That a designated NARA official approved asset sales program; (d) If a debtor disputes the validity of has reviewed the claim and determined (3) Has been referred to a private the debt, the credit reporting agency that it is valid; collection contractor for collection for a refers the matter to the appropriate (3) That payment of the debt is due as period of time acceptable to the NARA official. The credit reporting of the date of the notice, and that the Secretary of the Treasury; agency excludes the debt from its debt will be considered delinquent if (4) Is at a debt collection center for a reports until NARA certifies in writing you do not pay it within 30 days of the period of time acceptable to the that the debt is valid. date of the notice; Secretary of the Treasury; (e) NARA may disclose to a (4) NARA’s policy concerning (5) Will be collected under internal commercial credit bureau information interest, penalty charges, and offset procedures within 3 years after concerning a commercial debt, administrative costs (see § 1201.18), the date the debt or claim is first including the following: including a statement that such delinquent; or (1) Information necessary to establish assessments must be made against you (6) Is exempt from this requirement the name, address, and employer unless excused in accordance with the based on a determination by the identification number of the commercial FCCS and this part; (5) That you have the right to inspect Secretary of the Treasury. debtor; (2) The amount, status, and history of and copy disclosable NARA records § 1201.11 Will NARA refer claims to the the debt; and pertaining to your debt, or to receive Department of Justice? (3) The program or pertinent activity copies of those records if personal NARA will refer to DOJ for litigation under which the debt arose. inspection is impractical; claims on which aggressive collection (6) That you have the opportunity to actions have been taken, but which § 1201.13 How will NARA contract for enter into an agreement, in writing and could not be collected, compromised, collection services? signed by both you and the designated suspended, or terminated. Referrals will NARA uses the services of a private NARA official, for voluntary repayment be made as early as possible, consistent collection contractor where it of the debt (see § 1201.19); with aggressive NARA collection action, determines that such use is in NARA’s (7) The address, telephone number, and within the period for bringing a best interest. When NARA determines and name of the NARA official available timely suit against the debtor. that there is a need to contract for to discuss the debt; collection services, NARA: (8) Possible collection actions that § 1201.12 Will NARA provide information (a) Retains sole authority to: might be taken if the debt is not paid to credit reporting agencies? (1) Resolve any dispute with the within 60 days of the notice, or (a) NARA will report certain debtor regarding the validity of the debt; arrangements to pay the debt are not delinquent debts to appropriate (2) Compromise the debt; made within 60 days of the notice (see consumer credit reporting agencies by (3) Suspend or terminate collection § 1201.15 for a fuller description of providing the following information: action; possible actions); (1) A statement that the debt is valid (4) Refer the debt to the DOJ for (9) That NARA may suspend or and overdue; litigation; and revoke any licenses, permits, or other (2) The name, address, taxpayer (5) Take any other action under this privileges for failure to pay a debt; and identification number, and any other part; (10) Information on your opportunity information necessary to establish the (b) Requires the contractor to comply to obtain a review of the debt (see identity of the debtor; with the: § 1201.16). (3) The amount, status, and history of (1) Privacy Act of 1974, as amended, (b) NARA will respond promptly to the debt; and to the extent specified in 5 U.S.C. communications from you. (4) The program or pertinent activity 552a(m); (c) Exception to entitlement to notice, under which the debt arose. (2) Fair Debt Collection Practices Act hearing, written responses, and final (b) Before disclosing debt information (15 U.S.C. 1692–1692o); and decisions. With respect to the to a credit reporting agency, NARA: (3) Other applicable Federal and State regulations covering internal salary (1) Takes reasonable action to locate laws pertaining to debt collection offset collections (see § 1230.32), NARA the debtor if a current address is not practices and applicable regulations of excepts from the provisions of available; NARA in this part; paragraph (a) of this section—
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(1) Any adjustment to pay arising out (e) By referring the debt to the or regulations governing the program for of an employee’s election of coverage or Treasury for offset against any refund of which the collection is being made; and a change in coverage under a Federal overpayment of tax (see subpart D of (h) That unless there are applicable benefits program requiring periodic this part); contractual or statutory provisions to deductions from pay, if the amount to (f) By administrative offset (see the contrary, amounts paid on or be recovered was accumulated over 4 subpart E of this part); deducted for the debt that are later pay periods or less; (g) By administrative wage waived or found not owed will be (2) A routine intra-agency adjustment garnishment (see subpart F of this part); promptly refunded to you. of pay that is made to correct an or overpayment of pay attributable to (h) By liquidation of security or § 1201.17 What must I do to obtain a clerical or administrative errors or review of my debt, and how will the review collateral. NARA has the right to hold process work? delays in processing pay documents, if security or collateral, liquidate it, and the overpayment occurred within the 4 apply the proceeds to your debt through (a) Request for review. (1) You have pay periods preceding the adjustment the exercise of a power of sale in the the right to request a review by NARA and, at the time of such adjustment, or security instrument or a foreclosure. of the existence or amount of your debt, as soon thereafter as practical, the NARA will not follow the procedures in the proposed schedule for offset of individual is provided written notice of this paragraph (h) if the cost of Federal employee salary payments, or the nature and the amount of the disposing the collateral will be whether the debt is past due or legally adjustment and point of contact for disproportionate to its value. enforceable. If you want a review, you contesting such adjustment; or must send a written request to the (3) Any adjustment to collect a debt § 1201.16 What will the notice tell me NARA official designated in the notice amounting to $50 or less, if, at the time about my opportunity for review of my (see § 1201.16(d)). of such adjustment, or as soon thereafter debt? (2) You must sign your request for as practical, the individual is provided The notice provided by NARA under review and fully identify and explain written notice of the nature and the §§ 1201.14 and 1201.15 will also advise with reasonable specificity all the facts, amount of the adjustment and a point of you of the opportunity to obtain a evidence, and witnesses that support contact for contesting such adjustment. review within NARA concerning the your position. Your request for review existence or amount of the debt or the should be accompanied by available § 1201.15 What will the notice tell me proposed schedule for offset of Federal evidence to support your contentions. regarding collection actions that might be employee salary payments. The notice (3) Your request for review must be taken if the debt is not paid within 60 days of the notice, or arrangements to pay the will also advise you of the following: received by the designated officer or debt are not made within 60 days of the (a) The name, address, and telephone employee of NARA on or before the notice? number of a NARA official whom you 60th calendar day following the date of The notice provided under § 1201.14 may contact concerning procedures for the notice. Timely filing will stay the will advise you that within 60 days of requesting a review; commencement of collection the date of the notice, your debt (b) The method and time period for procedures. NARA may consider (including any interest, penalty charges, requesting a review; requests filed after the 60-day period and administrative costs) must be paid (c) That the filing of a request for a provided for in this section if you: or you must enter into a voluntary review on or before the 60th day (i) Can show that the delay was the repayment agreement. If you do not pay following the date of the notice will stay result of circumstances beyond your the debt or enter into the agreement the commencement of collection control; or within that deadline, NARA may proceedings; (ii) Did not receive notice of the filing enforce collection of the debt by any or (d) The name and address of the deadline (unless you had actual notice all of the following methods: NARA official to whom you should of the filing deadline). (a) By referral to a credit reporting send the request for a review; (b) Inspection of NARA records agency (see § 1201.12), private (e) That a final decision on the review related to the debt. (1) If you want to collection contractor (see § 1201.13), or (if one is requested) will be issued in inspect or copy NARA records related to the DOJ (see § 1201.11). writing at the earliest practical date, but the debt (see § 1201.14(a)(5)), you must (b) By transferring any debt to the not later than 60 days after the receipt send a letter to the NARA official Treasury for collection, including under of the request for a review, unless you designated in the notice. Your letter a cross-servicing agreement with the request, and the review official grants, a must be received within 30 days of the Treasury (see § 1201.10). delay in the proceedings; date of the notice. (c) If you are a NARA employee, by (f) That any knowingly false or (2) In response to the timely request deducting money from your disposable frivolous statements, representations, or described in paragraph (b)(1) of this pay account until the debt (and all evidence may subject you to: section, the designated NARA official accumulated interest, penalty charges, (1) Disciplinary procedures will notify you of the location and time and administrative costs) is paid in full appropriate under 5 U.S.C. Chapter 75, when you may inspect and copy records (see subpart C of this part). NARA will 5 CFR part 752, or any other applicable related to the debt. specify the amount, frequency, statute or regulations; (3) If personal inspection of NARA approximate beginning date, and (2) Penalties under the False Claims records related to the debt is duration of the deduction. 5 U.S.C. 5514 Act (31 U.S.C. 3729–3733) or any other impractical, reasonable arrangements and 31 U.S.C. 3716 govern such applicable statutory authority; and will be made to send you copies of those proceedings; (3) Criminal penalties under 18 U.S.C. records. (d) If you are an employee of a Federal 286, 287, 1001, and 1002, or any other (c) Review official. (1) When required agency other than NARA, by initiating applicable statutory authority; by Federal law or regulation, such as in certification procedures to implement a (g) Any other rights available to you a salary offset situation, NARA will salary offset by that Federal agency (see to dispute the validity of the debt or to request an administrative law judge, or subpart C of this part). 5 U.S.C. 5514 have recovery of the debt waived, or hearing official from another agency governs such proceedings; remedies available to you under statutes who is not under the supervision or
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control of the Archivist, to conduct the (f) Content of review decision. The costs, third to accrued interest, and review. In these cases, the hearing review official will prepare a written fourth to the outstanding debt principal. official will, following the review, decision that includes: (e) Additional authority. NARA may submit the review decision to the (1) A statement of the facts presented assess interest, penalty charges, and Archivist for the issuance of NARA’s to support the origin, nature, and administrative costs on debts that are final decision (see paragraph (f) of this amount of the debt; not subject to 31 U.S.C. 3717 to the section for content of the review (2) The review official’s findings, extent authorized under common law or decision). analysis, and conclusions; and other applicable statutory authority. (2) When Federal law or regulation (3) The terms of any repayment (f) Waiver. (1) The Archivist may does not require NARA to have the schedule, if applicable. (without regard to the amount of the review conducted by an administrative (g) Interest, penalty charge, and debt) waive collection of all or part of law judge, or by a hearing official from administrative cost accrual during accrued interest, penalty charges, or another agency who is not under the review period. Interest, penalty charges, administrative costs, if he or she supervision or control of the Archivist, and administrative costs authorized by determines that collection of these NARA has the right to appoint a hearing law will continue to accrue during the charges would be against equity and official to conduct the review. In these review period. good conscience or not in the best cases, the hearing official will, following interest of NARA. the review, submit the review decision § 1201.18 What interest, penalty charges, (2) A decision to waive interest, to the Archivist for the issuance of and administrative costs will I have to pay penalty charges, or administrative costs NARA’s final decision (see paragraph (f) on a debt owed to NARA? may be made at any time before a debt of this section for the content of the (a) Interest. (1) NARA will assess is paid. However, and unless otherwise review decision). interest on all delinquent debts unless stated in these regulations, where these (d) Review procedure. If you request a prohibited by statute, regulation, or charges have been collected before the review, the review official will notify contract. waiver decision, they will not be you of the form of the review to be (2) Interest begins to accrue on all refunded. The Archivist’s decision to provided. The review official will debts from the date that the debt waive or not waive collection of these determine whether an oral hearing is becomes delinquent. NARA will not charges is final and is not subject to required, or if a review of the written recover interest if you pay the debt further review. within 30 days of the date on which record is sufficient, in accordance with § 1201.19 How can I resolve my debt the FCCS. Although you may request an interest begins to accrue. NARA will through voluntary repayment? assess interest at the rate established oral hearing, such a hearing is required (a) In response to a notice of debt, you annually by the Secretary of the only when a review of the documentary may propose to NARA that you be Treasury under 31 U.S.C. 3717, unless evidence cannot determine the question allowed to repay the debt through a a different rate is either necessary to of indebtedness, such as when the voluntary repayment agreement in lieu protect the interests of NARA or validity of the debt turns on an issue of of NARA taking other collection actions established by a contract, repayment credibility or truthfulness. In either under this part. agreement, or statute. NARA will notify case, the review official will conduct the (b) Your request to enter into a you of the basis for its finding when a review in accordance with the FCCS. If voluntary repayment agreement must: the review will include an oral hearing, different rate is necessary to protect the (1) Be in writing; the notice sent to you by the review interests of NARA. (2) Admit the existence of the debt; official will set forth the date, time, and (3) The Archivist may extend the 30- and location of the hearing. day period for payment without interest (3) Either propose payment of the debt (e) Date of decision. (1) The review where he or she determines that such (together with interest, penalty charges, official will issue a written decision, action is in the best interest of NARA. and administrative costs) in a lump based upon either the written record or A decision to extend or not to extend sum, or set forth a proposed repayment documentary evidence and information the payment period is final and is not schedule. developed at an oral hearing. This subject to further review. (c) NARA will collect claims in one decision will be issued as soon as (b) Penalty. NARA will assess a lump sum whenever feasible. However, practical, but not later than 60 days after penalty charge of 6 percent a year on if you are unable to pay your debt in one the date on which NARA received your any portion of a debt that is delinquent lump sum, NARA may accept payment request for a review, unless you request, for more than 90 days. in regular installments that bear a and the review official grants, a delay in (c) Administrative costs. NARA will reasonable relationship to the size of the the proceedings. assess charges to cover administrative debt and your ability to pay. (2) If NARA is unable to issue a costs incurred as a result of your failure (d) NARA will consider a request to decision within 60 days after the receipt to pay a debt before it becomes enter into a voluntary repayment of the request for a hearing: delinquent. Administrative costs agreement in accordance with the FCCS. (i) NARA may not issue a withholding include the additional costs incurred in The Archivist may request additional order or take other action until the processing and handling the debt information from you, including hearing (in whatever form) is held and because it became delinquent, such as financial statements if you request to a decision is rendered; and costs incurred in obtaining a credit make payments in installments, in order (ii) If NARA previously issued a report or in using a private collection to determine whether to accept a withholding order to the debtor’s contractor, or service fees charged by a voluntary repayment agreement. It is employer, NARA must suspend the Federal agency for collection activities within the Archivist’s discretion to withholding order beginning on the 61st undertaken on behalf of NARA. accept a repayment agreement instead of day after the receipt of the hearing (d) Allocation of payments. A partial proceeding with other collection actions request and continuing until a hearing or installment payment by a debtor will under this part, and to set the necessary (in whatever form) is held and a be applied first to outstanding penalty terms of any voluntary repayment decision is rendered. assessments, second to administrative agreement. No repayment agreement
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will be binding on NARA unless it is in waiver of an overpayment under 5 simultaneously within the 15 percent writing and signed by both you and the U.S.C. 5584 or 8346(b), 10 U.S.C. 2774, limitation. Archivist. At NARA’s option, you may 32 U.S.C. 716, or other statutory be required to provide security as part provisions pertaining to the particular § 1201.33 How will NARA coordinate salary offsets with other agencies? of the agreement to make payments in debts being collected. installments. Notwithstanding the (a) Responsibilities of NARA as the provisions of this section, 31 U.S.C. § 1201.32 What are NARA’s procedures for creditor agency (i.e. when the debtor salary offset? 3711 will govern any reduction or owes a debt to NARA and is an compromise of a claim. (a) NARA will coordinate salary employee of another agency). Upon deductions under this subpart as completion of the procedures § 1201.20 What is the extent of the appropriate. established in this subpart and pursuant Archivist’s authority to compromise debts (b) If you are a NARA employee who to 5 U.S.C. 5514 and 31 U.S.C. 3716, owed to NARA, or to suspend or terminate owes a debt to NARA, NARA’s payroll NARA must submit a claim to a paying collection action on such debts? office will determine the amount of your agency or disbursing official. (a) The Archivist may compromise, disposable pay and will implement the (1) In its claim, NARA must certify, in suspend, or terminate collection action salary offset. writing, the following: on those debts owed to NARA that do (c) Deductions will begin within three (i) That the employee owes the debt; not exceed $100,000 excluding interest, official pay periods following receipt by (ii) The amount and basis of the debt; in conformity with the Federal Claims NARA’s payroll office of certification of (iii) The date NARA’s right to collect Collection Act of 1966, as amended. debt from the creditor agency. the debt first accrued; NARA will follow the policies in § 902.2 (d) The Notice provisions of these (iv) That NARA’s regulations in this of the FCCS. regulations do not apply to certain debts subpart have been approved by OPM (b) The uncollected portion of a debt arising under this section (see under 5 CFR part 550, subpart K; and owed to NARA that is not recovered as § 1201.14(c)). (v) That NARA has met the the result of a compromise will be (e) Types of collection. (1) Lump-sum certification requirements of the paying reported to the Internal Revenue Service offset. If the amount of the debt is equal agency. (IRS) as income to the debtor in to or less than 15 percent of disposable (2) If the collection must be made in accordance with IRS procedures if the pay, the debt generally will be collected installments, NARA’s claim will also debt is at least $600.00. through one lump-sum offset. advise the paying agency of the amount (2) Installment deductions. § 1201.21 May NARA’s failure to comply or percentage of disposable pay to be with these regulations be used as a defense Installment deductions will be made collected in each installment. NARA to a debt? over a period not greater than the may also advise the paying agency of No, the failure of NARA to comply anticipated period of employment. The the number of installments to be with any standard in the FCCS or these size and frequency of installment collected and the date of the first regulations will not be available to any deductions will bear a reasonable installment, if that date is other than the debtor as a defense. relation to the size of the debt and your next officially established pay period. ability to pay. However, the amount (3) NARA will also include in its Subpart C—Salary Offset deducted from any period will not claim: exceed 15 percent of the disposable pay (i) The employee’s written consent to § 1201.30 What debts are included or from which the deduction is made the salary offset; excluded from coverage of these unless you have agreed in writing to the (ii) The employee’s signed statement regulations on salary offset? deduction of a greater amount. If acknowledging receipt of the procedures (a) The regulations in this subpart possible, installment payments will be required by 5 U.S.C. 5514; or provide NARA procedures for the sufficient in size and frequency to (iii) Information regarding the collection by salary offset of a Federal liquidate the debt in three years or less. completion of procedures required by 5 employee’s pay to satisfy certain debts (3) Deductions from final check. A U.S.C. 5514, including the actions taken owed to NARA or to other Federal deduction exceeding the 15 percent of and the dates of those actions. agencies. disposable pay limitation may be made (4) If the employee is in the process (b) The regulations in this subpart do from any final salary payment under 31 of separating and has not received a not apply to any case where collection U.S.C. 3716 and the FCCS in order to final salary check or other final of a debt by salary offset is explicitly liquidate the debt, whether the payment(s) from the paying agency, provided for or prohibited by another employee is being separated voluntarily NARA must submit its claim to the statute. or involuntarily. paying agency or disbursing official for (c) Nothing in the regulations in this (4) Deductions from other sources. If collection under 31 U.S.C. 3716. The subpart precludes the compromise, an employee subject to salary offset is paying agency will (under its suspension, or termination of collection separated from NARA and the balance regulations adopted under 5 U.S.C. 5514 actions under the Federal Claims of the debt cannot be liquidated by and 5 CFR part 550, subpart K), certify Collection Act of 1966, as amended, or offset of the final salary check, NARA the total amount of its collection on the the FCCS. may offset later payments of any kind debt and notify the employee and (d) A levy imposed under the Internal against the balance of the debt, as NARA. If the paying agency’s collection Revenue Code takes precedence over a allowed by 31 U.S.C. 3716 and the does not fully satisfy the debt, and the salary offset under this subpart, as FCCS. paying agency is aware that the debtor provided in 5 U.S.C. 5514(d). (f) Multiple debts. In instances where is entitled to payments from the Civil § 1201.31 May I ask NARA to waive an two or more creditor agencies are Service Retirement and Disability Fund overpayment that otherwise would be seeking salary offsets, or where two or or other similar payments that may be collected by offsetting my salary as a more debts are owed to a single creditor due the debtor employee from other Federal employee? agency, NARA’s payroll office may, at Federal government sources, then Yes, the regulations in this subpart do its discretion, determine whether one or (under its regulations adopted under 5 not preclude you from requesting more debts should be offset U.S.C. 5514 and 5 CFR part 550, subpart
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K), the paying agency will provide determination with respect to the debt is not past due or legally written notice of the outstanding debt to amount or validity of the debt certified enforceable; the agency responsible for making the by the creditor agency. (ii) Considered evidence presented by other payments to the debtor employee. (4) Employees who transfer from the debtor; and The written notice will state that the NARA to another paying agency. If, after (iii) Determined that an amount of the employee owes a debt, the amount of the creditor agency has submitted the debt is past due and legally enforceable; the debt, and that the provisions of this claim to NARA, the employee transfers (4) With respect to which NARA has section have been fully complied with. from NARA to a different paying agency notified or has made a reasonable However, NARA must submit a properly before the debt is collected in full, attempt to notify the debtor that: certified claim under this paragraph NARA will certify the total amount (i) The debt is past due, and (a)(4) to the agency responsible for collected on the debt and notify the (ii) Unless repaid within 60 days of making the other payments before the employee and the creditor agency in the date of the notice, the debt may be collection can be made. writing. The notification to the creditor referred to the Treasury for offset against (5) If the employee is already agency will include information on the any refund of overpayment of tax; and separated and all payments due from his employee’s transfer. (5) All other requirements of 31 U.S.C. or her former paying agency have been 3720A and the Treasury regulations paid, NARA may request, unless § 1201.34 Under what conditions will relating to the eligibility of a debt for tax NARA make a refund of amounts collected return offset (31 CFR 285.2) have been otherwise prohibited, that money due by salary offset? and payable to the employee from the satisfied. Civil Service Retirement and Disability (a) If NARA is the creditor agency, it will promptly refund any amount § 1201.41 What are NARA’s procedures for Fund or other similar funds be collecting debts by tax refund offset? administratively offset to collect the deducted under the authority of 5 U.S.C. debt. 5514, when: (a) NARA’s Financial Services (6) Employee transfer. When an (1) The debt is waived or all or part Division will be the point of contact employee transfers from one paying of the funds deducted are otherwise with the Treasury for administrative agency to another paying agency, NARA found not to be owed (unless expressly matters regarding the offset program. will not repeat the due process prohibited by statute or regulation); or (b) NARA will ensure that the procedures described in 5 U.S.C. 5514 (2) An administrative or judicial order procedures prescribed by the Treasury and this subpart to resume the directs NARA to make a refund. are followed in developing information collection. NARA will submit a properly (b) Unless required or permitted by about past-due debts and submitting the certified claim to the new paying agency law or contract, refunds under this debts to the Treasury. and will subsequently review the debt section will not bear interest. (c) NARA will submit to the Treasury to ensure that the collection is resumed a notification of a taxpayer’s liability for § 1201.35 Will the collection of a claim by past-due legally enforceable debt. This by the new paying agency. salary offset act as a waiver of my rights to (b) Responsibilities of NARA as the dispute the claimed debt? notification will contain the following: paying agency (i.e. when the debtor (1) The name and taxpayer No, your involuntary payment of all identification number of the debtor; owes a debt to another agency and is an or any portion of a debt under this employee of NARA). (1) Complete claim. (2) The amount of the past-due and subpart will not be construed as a legally enforceable debt; When NARA receives a certified claim waiver of any rights that you may have from a creditor agency (under the (3) The date on which the original under 5 U.S.C. 5514 or other provisions debt became past due; creditor agency’s regulations adopted of a law or written contract, unless there under 5 U.S.C. 5514 and 5 CFR part 550, (4) A statement certifying that, with are statutory or contractual provisions to respect to each debt reported, all of the subpart K), deductions should be the contrary. scheduled to begin within three requirements of § 1201.40(b) have been officially established pay intervals. Subpart D—Tax Refund Offset satisfied; and Before deductions can begin, NARA (5) Any other information as sends the employee a written notice § 1201.40 Which debts can NARA refer to prescribed by Treasury. the Treasury for collection by offsetting tax (d) For purposes of this section, notice containing: refunds? (i) A statement that NARA has that collection of the debt is stayed by received a certified claim from the (a) The regulations in this subpart a bankruptcy proceeding involving the creditor agency; implement 31 U.S.C. 3720A, which debtor will bar referral of the debt to the (ii) The amount of the claim; authorizes the Treasury to reduce a tax Treasury. (iii) The date salary offset deductions refund by the amount of a past-due, (e) NARA will promptly notify the will begin; and legally enforceable debt owed to a Treasury to correct data when NARA: (iv) The amount of such deductions. Federal agency. (1) Determines that an error has been (2) Incomplete claim. When NARA (b) For purposes of this section, a made with respect to a debt that has receives an incomplete certification of past-due, legally enforceable debt been referred; debt from a creditor agency, NARA will referrable to the Treasury for tax refund (2) Receives or credits a payment on return the claim with a notice that the offset is a debt that is owed to NARA the debt; or creditor agency must: and: (3) Receives notice that the person (i) Comply with the procedures (1) Is at least $25.00; owing the debt has filed for bankruptcy required under 5 U.S.C. 5514 and 5 CFR (2) Except in the case of a judgment under Title 11 of the United States Code part 550, subpart K, and debt, has been delinquent for at least and the automatic stay is in effect or has (ii) Properly certify a claim to NARA three months and will not have been been adjudicated bankrupt and the debt before NARA will take action to collect delinquent more than 10 years at the has been discharged. from the employee’s current pay time the offset is made; (f) When advising debtors of NARA’s account. (3) With respect to which NARA has: intent to refer a debt to the Treasury for (3) NARA is not authorized to review (i) Given the debtor at least 60 days offset, NARA will also advise debtors of the merits of the creditor agency’s to present evidence that all or part of the remedial actions (see §§ 1201.9 and
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1201.14 through 1201.16 of this part) Federal agency instead be paid to NARA § 1201.53 When may NARA make an offset available to defer the offset or prevent to satisfy a debt you owe to NARA. in an expedited manner? it from taking place. NARA will refer debts to the Treasury NARA may effect an administrative for centralized administrative offset in offset against a payment to be made to Subpart E—Administrative Offset accordance with the FCCS and the you before completion of the procedures § 1201.50 Under what circumstances will procedures established by the Treasury. required by §§ 1201.51 and 1201.52 if NARA collect amounts that I owe to NARA Where centralized offset is not available failure to take the offset would (or some other Federal agency) by or appropriate, NARA may request substantially jeopardize NARA’s ability offsetting the debt against payments that offset directly from the Federal agency to collect the debt and the time before NARA (or some other Federal agency) owes that is holding funds for you. In the payment is to be made does not me? requesting administrative offset, NARA reasonably permit the completion of (a) The regulations in this subpart will certify in writing to the Federal those procedures. An expedited offset apply to the collection of any debts you agency that is holding funds for you: will be followed promptly by the owe to NARA, or to any request from (a) That you owe the debt; completion of those procedures. another Federal agency that NARA (b) The amount and basis of the debt; Amounts recovered by offset, but later collect a debt you owe by offsetting your and found not to be owed to the United debt against a payment NARA owes (c) That NARA has complied with the States, will be promptly refunded. you. Administrative offset is authorized requirements of 31 U.S.C. 3716, its own under section 5 of the Federal Claims § 1201.54 Can a judgment I have obtained administrative offset regulations in this against the United States be used to satisfy Collection Act of 1966, as amended (31 subpart, the applicable administrative U.S.C. 3716). NARA will carry out a debt that I owe to NARA? offset regulations of the agency holding Collection by offset against a administrative offset in accordance with the funds, and the applicable provisions the provisions of the FCCS. The judgment obtained by a debtor against of the FCCS with respect to providing the United States will be accomplished regulations in this subpart are intended you with due process. only to supplement the provisions of the in accordance with 31 U.S.C. 3728 and Federal Claims Collection Standards. § 1201.52 What procedures will NARA use 31 U.S.C. 3716. (b) The Archivist, after attempting to to collect amounts I owe to a Federal collect a debt you owe to NARA under agency by offsetting a payment that NARA Subpart F—Administrative Wage Section 3(a) of the Federal Claims would otherwise make to me? Garnishment Collection Act of 1966, as amended (31 (a) Any Federal agency may request § 1201.55 How will NARA collect debts U.S.C. 3711(a)), may collect the debt by that NARA administratively offset funds through Administrative Wage Garnishment? administrative offset only after giving due and payable to you in order to NARA will collect debts through you: collect a debt you owe to that agency. Administrative Wage Garnishment in (1) Written notice of the type and NARA will initiate the requested offset amount of the claim, the intention of the accordance with the Administrative only upon: Wage Garnishment regulations issued head of the agency to collect the claim (1) Receipt of written certification by administrative offset, and an by the Treasury. NARA adopts, for the from the creditor agency stating: purposes of this subpart, the Treasury’s explanation of the rights of the debtor; (i) That you owe the debt; (2) An opportunity to inspect and Administrative Wage Garnishment (ii) The amount and basis of the debt; copy the records of the agency related regulations in 31 CFR 285.11. to the claim; (iii) That the agency has prescribed Dated: June 27, 2002. regulations for the exercise of (3) An opportunity for a review John W. Carlin, administrative offset; and within the agency of the decision of the Archivist of the United States. (iv) That the agency has complied agency related to the claim; and [FR Doc. 02–16703 Filed 7–3–02; 8:45 am] (4) An opportunity to make a written with its own administrative offset agreement with the head of the agency regulations and with the applicable BILLING CODE 7515–01–P to repay the amount of the claim. provisions of the FCCS, including (c) No collection by administrative providing you with any required NATIONAL ARCHIVES AND RECORDS offset will be made on any debt that has hearing or review; and ADMINISTRATION been outstanding for more than 10 (2) A determination by the Archivist years, unless facts material to NARA or that offsetting funds payable to you by 36 CFR Part 1275 a Federal agency’s right to collect the NARA in order to collect a debt owed debt were not known, and reasonably by you would be in the best interest of RIN 3095–AB07 could not have been known, by the the United States as determined by the Nixon Presidential Materials; official or officials responsible for facts and circumstances of the particular Reproduction discovering and collecting the debt. case, and that such an offset would not (d) The regulations in this subpart do otherwise be contrary to law. AGENCY: National Archives and Records not apply to: (b) Multiple debts. In instances where Administration (NARA). (1) A case in which administrative two or more creditor agencies are ACTION: Final rule. offset of the type of debt involved is seeking administrative offsets, or where explicitly prohibited by statute; or two or more debts are owed to a single SUMMARY: NARA is revising the (2) Debts owed to NARA by Federal creditor agency, NARA may, in its regulations for obtaining copies of the agencies. discretion, allocate the amount it owes Nixon White House tape recordings, § 1201.51 How will NARA request that my to you to the creditor agencies in which are in NARA custody. First, debt to NARA be collected by offset against accordance with the best interest of the NARA is now allowing the public to some payment that another Federal agency United States as determined by the facts obtain copies of all Nixon White House owes me? and circumstances of the particular tape recordings after they are officially The Archivist may request that funds case, paying special attention to released to the public. Previously, due and payable to you by another applicable statutes of limitations. NARA only permitted the public to
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obtain selected tape recordings. Second, schedule set forth in part 1258 of this requirements in the final rule and the ban on self-service copying of these chapter. clarifies two issues arising from tapes is lifted. These changes reflect * * * * * explanatory language in the preamble to modifications in the 1996 Nixon Tapes 2. Amend § 1275.66 by revising the direct final rule amendments of Settlement Agreement that became paragraph (a) to read as follows: April 5, 2002. effective April 1, 2001. This final rule Section 553 of the Administrative will apply to the public. § 1275.66 Reproduction and authentication Procedure Act, 5 U.S. C. 553(b)(3)(B), of other materials. provides that, when an agency for good EFFECTIVE DATE: August 5, 2002. (a) Copying of materials, including cause finds that notice and public FOR FURTHER INFORMATION CONTACT: Kim tape recordings described in § 1275.64, comment procedures are impracticable, Richardson at telephone number 301– unnecessary or contrary to the public 837–2902, or fax number 301–837–0319. may be done by NARA, by a contractor designated by NARA, or by researchers interest, the agency may issue a rule SUPPLEMENTARY INFORMATION: The using self-service copiers or copying without providing notice and an proposed rule was published in the equipment. opportunity for public comment. We March 15, 2002, Federal Register (67 FR have determined that there is good * * * * * 11632) for a 60-day comment period. cause for making this rule final without NARA did not receive any comments. 3. Amend Appendix A to Part 1275— prior notice and comment procedure This rule is a significant regulatory Settlement Agreement, by revising the because it merely corrects a summary action for the purposes of Executive introductory paragraph to read as table to reflect amended monitoring Order 12866 and has been reviewed by follows: requirements and clarifies preamble the Office of Management and Budget. Appendix A to Part 1275—Settlement language from the direct final rule As required by the Regulatory Agreement amendments. Both the proposed rule Flexibility Act, I certify that this rule and direct final rule amendments (as will not have a significant impact on a Settlement Agreement filed April 12, 1996, well as the Settlement Agreement that in Stanley I. Kutler and Public Citizen v. John occasioned these amendments) were substantial number of small entities. W. Carlin, Archivist of the United States, and This regulation does not have any William E. Griffin and John H. Taylor, Co- subject to exhaustive notice and federalism implications. executors of Richard M. Nixon’s Estate, Civil comment (including comment on the matters addressed in this notice). Thus, List of Subjects in 36 CFR Part 1275 Action No. 92–0662–NHJ (D.D.C.) (Johnson, J.). By letter dated April 17, 2001, NARA and notice and comment are contrary to the Archives and records. the Nixon estate agreed to waive paragraph public interest and unnecessary. We For the reasons set forth in the 11 of this Settlement Agreement, such that find that the circumstances described the delay on public copying until January 1, preamble, NARA amends part 1275 of constitute good cause under 5 U.S.C. 2003, of tapes not made publicly available 553(b)(3)(B) and 553(d)(3) which title 36, Code of Federal Regulations, as before April 12, 1996, shall no longer apply. follows: authorizes an agency to make a rule This change is reflected in 36 CFR 1275.64. immediately effective where it finds that PART 1275—PRESERVATION AND * * * * * there is good cause for doing so. PROTECTION OF AND ACCESS TO Dated: May 23, 2002. EFFECTIVE DATE: July 5, 2002. THE PRESIDENTIAL HISTORICAL John W. Carlin, ADDRESSES: Docket number A–92–53, MATERIALS OF THE NIXON Archivist of the United States. containing supporting information used ADMINISTRATION [FR Doc. 02–16663 Filed 7–3–02; 8:45 am] in the development of this notice is BILLING CODE 7515–01–P available for public inspection and 1. The authority citation for part 1275 copying between 8:00 a.m. and 5:30 is revised to read as follows: p.m., Monday through Friday (except Authority: 44 U.S.C. 2104, 2111 note. ENVIRONMENTAL PROTECTION for Federal holidays) at the following AGENCY address: U.S. Environmental Protection 1. Amend § 1275.64 by revising Agency, Air and Radiation Docket and paragraph (d) to read as follows: 40 CFR Part 63 Information Center (6102), 401 M Street SW., Washington, DC 20460, or by § 1275.64 Reproduction of tape recordings [FRL–7240–5] of Presidential conversations. calling (202) 260–7548. A reasonable fee * * * * * RIN 2060–AE78 may be charged for copying docket materials. (d) The reproduction for members of National Emission Standards for Effective August 27, 2002, the Office the public of the reference copies of the Hazardous Air Pollutants From the of Air and Radiation Docket and available tape recordings described in Portland Cement Manufacturing Information Center will have a new paragraph (a) of this section will be Industry address: 1301 Constitution Avenue permitted as follows: Copies of tape NW., Room B108, Washington, DC, recordings will be made available AGENCY: Environmental Protection 20460. following the public release of the tape Agency (EPA). FOR FURTHER INFORMATION CONTACT: Mr. segments contemplated in § 1275.42(a). ACTION: Final rule; clarifications and Joseph Wood, P.E., Minerals and Effective as of April 20, 2001, NARA correction. will allow members of the public to Inorganic Chemicals Group, Emission obtain copies of all tapes that have been SUMMARY: On April 5, 2002, the EPA Standards Division (C504–05), Office of made available to the public by that date issued a direct final rule to amend the Air Quality Planning and Standards, and that subsequently become available national emission standards for U.S. EPA, Research Triangle Park, North as they are released. Such copying will hazardous air pollutants for the portland Carolina 27711, telephone number (919) be controlled by NARA or its designated cement industry. That action, in part, 541–5446, facsimile number (919) 541– contractor. The fees for the reproduction amended the monitoring requirements 5600, electronic mail address: of the tape recordings under this section for the industry. This action corrects the [email protected]. shall be those prescribed in the corresponding table of monitoring SUPPLEMENTARY INFORMATION:
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Docket. The docket is an organized the contents of the docket will serve as www.epa.gov/ttn/oarpg. The TTN at and complete file of all the information the record in the case of judicial review. EPA’s Web site provides information considered by EPA in the development The docket number for this rulemaking and technology exchange in various of this direct final rule. The docket is a is A–92–53. areas of air pollution control. If more dynamic file because material is added Worldwide Web (WWW). In addition information regarding the TTN is throughout the rulemaking process. The to being available in the docket, an needed, call the TTN HELP line at (919) docketing system is intended to allow electronic copy of this action will also 541–5384. members of the public and industries be available through the WWW. involved to readily identify and locate Following signature, a copy of this Regulated Entities. Entities potentially documents so that they can effectively action will be posted on EPA’s regulated by this action are those that participate in the rulemaking process. Technology Transfer Network (TTN) manufacture portland cement. Along with the proposed and policy and guidance page for newly Regulated categories and entities promulgated rules and their preambles, proposed or promulgated rules: http:// include:
Category NAICS SIC Examples of regulated entities
Industry ...... 32731 ...... 3241 ...... Owners or operators of portland cement manufacturing plants. State ...... 32731 ...... 3241 ...... Owners or operators of portland cement manufacturing plants. Tribal associations ...... 32731 ...... 3241 ...... Owners or operators of portland cement manufacturing plants. Federal agencies ...... None ...... None ...... None.
This table is not intended to be response to these comments, we are performance test and on other factors exhaustive, but rather provides a guide issuing the final rule amendments. affecting the effectiveness of the for readers regarding entities likely to be Kiln Production Rate Not an pollution control equipment; the regulated by this action. This table lists Operating Limit. In the preamble to the ultimate measure being whether any of the types of entities that the EPA is now April 5, 2002, direct final amendments, these changes may adversely affect aware could potentially be regulated by we explained why we amended compliance with the emission this action. To determine whether your § 63.1349(b) to require that performance standards. The production rate of a kiln facility, company, business testing be conducted under is only one of many indicators (i.e., organization, etc., is regulated by this representative conditions rather than potentially relevant indicia) of action, you should carefully examine under ‘‘the highest load or capacity representative operating conditions. In the applicability criteria in § 63.1340 of reasonably expected to occur’’ (67 FR addition, the production rate may be the rule. If you have questions regarding 16616). We stated, ‘‘If the kiln is temporarily and slightly higher than the the applicability of this action to a operated under a condition not rate at which the kiln was operating particular entity, consult the person representative of the condition during during a performance test and still be listed in the preceding FOR FURTHER the performance test, e.g., the kiln is representative. A source is not INFORMATION CONTACT section. operated at a production rate higher automatically required to conduct a than the production rate at which it was performance test if the source’s Background. On June 14, 1999, we tested, the performance test will need to operating conditions vary from those in published in the Federal Register the be re-conducted and temperature place during the most recent prior final rule entitled, ‘‘National Emission limit(s) reestablished.’’ Although we did performance test. However, the burden Standards for Hazardous Air Pollutants not receive any comments on the is on the source to demonstrate that it From the Portland Cement amended regulatory text, ‘‘* * * when is able to comply with the emission Manufacturing Industry’’ (40 CFR part the affected source is operating at the limits when operating under the 63, subpart LLL). The American representative performance conditions alternative operating conditions. That is, Portland Cement Alliance (APCA) in accordance with § 63.7(e)’’ (67 FR it is the source’s ultimate burden of petitioned the United States Court of 16619), we did receive comments persuasion to demonstrate that its Appeals for the District of Columbia addressing specifically the example we performance testing conditions remain Circuit for review of the final rule under gave of a supposedly unrepresentative representative. This is in accordance section 307(b)(1) of the Clean Air Act condition, which they felt conflicted with the general principle that the party (CAA). The APCA and the EPA with the intent of the regulatory claiming an exception to an established negotiated and agreed to the terms of a amendment. Our intent was to make the protective rule has the burden of Settlement Agreement and its rule more consistent with the General justifying that exception. See Beth Israel implementation. As agreed to under the Provisions language that performance Hospital v. NLRB, 437 U.S. 482, 493, terms of the Settlement Agreement, EPA tests be conducted under representative 502 (1978); see also Hazardous Waste issued direct final amendments (67 FR conditions and to provide guidance on Treatment Council v. EPA, 886 F. 2d 16614, April 5, 2002) to improve the representativeness of a particular 355, 366–67 (D.C. Cir. 1989) implementation of the rule primarily in operating condition. Today, we are (permissible for agency to assign areas of applicability, emissions testing, clarifying that if a source operates at a ultimate burden of persuasion). and monitoring (there were no higher production level than that at Both commenters stated that the amendments to the emission standards which it tested, the previous example we gave suggests that themselves). After publication of the performance test may not have been production limits are established by the direct final rule amendments, representative of operating conditions performance test, and that this conflicts commenters requested a correction to and emissions at that higher production with the Settlement Agreement and our the rule and clarification of preamble level. Whether the test was letter to the APCA (April 17, 2002), language to better reflect provisions in representative depends on how much where we explicitly stated that the the Settlement Agreement and to avoid higher actual production levels are than production rate is not an operating regulatory misinterpretations. In those that existed during the limit. The example in the preamble does
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not, however, impose a production limit determining whether compliance is from the mill to the kiln. Other subpart or establish the production rate as an adversely affected. For example, Y transfer points (such as those operating limit. We are clarifying and temperature of the exhaust gas plays an transferring coal from a barge to a coal reiterating language from the Settlement important role in D/F formation and for pile) would continue to be subject to Agreement and from our letter to APCA this reason, the rule requires the source subpart Y requirements, as appropriate. that the production rate is not a to establish temperature operating Monitoring Requirements for Raw parameter for which operating limits are limits. Regarding the PM emission limit, Mills and Finish Mills (Table 1 to established, and the production rate although the mass emission rate of PM § 63.1350). Consistent with the measured during dioxin/furan (D/F) or may increase with an increase in Settlement Agreement, we revised the particulate matter (PM) performance test production rate, compliance may not monitoring requirements for raw mills is not an operating limit for the source. necessarily be adversely affected since and finish mills to allow for the use of Section 63.1344 of the rule lists all of the format of the standard is in pounds continuous monitoring systems in lieu the operating limits that kilns are of PM per ton of dry feed, and an of daily visible emission monitoring. subject to as part of the requirements of increase in production rate would allow Our direct final rule amendments the NESHAP. Those operating limits for some increase in the mass emission correctly reflect these new options in relate to the D/F emission standards and rate of PM. However, as stated above, § 63.1350(m). However, we include only temperature limits and the burden is on the source to inadvertently omitted the new options limits pertaining to the use of activated demonstrate that they are able to from Table 1 to § 63.1350 (Monitoring carbon injection. Section 63.1344 makes comply with the emission limits when Requirements). Today’s rule no mention of a kiln’s production rate operating under conditions which vary amendments correct Table 1 to include as an operating limit, and indeed this from those in place during the most the continuous monitoring system was our intent in drafting the final rule. recent prior performance test. options for raw mills and finish mills. In summary, there is no operating This means that if the kiln production Administrative Requirements rate exceeds the production rate during limit associated with the production the previous performance test, it is not rate. Further, the example we gave in Under Executive Order 12866, in violation of any operating parameter the April 5, 2002, preamble wasn’t Regulatory Planning and Review, (58 FR requirement. This does not mean, meant to create the presumption that an 51735, October 4, 1993), this action is however, that a change in production increase in production rate beyond the not a ‘‘significant regulatory action’’ and rate (or change in any other operating production rate during the previous is, therefore, not subject to review by the practice which is not a parametric performance test automatically means Office of Management and Budget. monitoring requirement established in that the kiln must be retested. Executive Order 13175, Consultation the rule) is irrelevant in determining Production rate could be relevant in and Coordination with Indian Tribal whether the kiln is operating in determining representativeness of the Governments, does not apply to this compliance with the emission limit. original test, but in some cases, an action. Because this action is not subject One of the commenters stated that the increase may not adversely affect to notice-and-comment requirements aforementioned example in the April 5, emissions, and the effect of other under the Administrative Procedure Act 2002, preamble conflicts with operating factors (such as exhaust gas or any other statute, it is not subject to § 63.1349(e)(1) and (2) of the newly stream temperature) should not be the regulatory flexibility provisions of amended rule which state that if a discounted since they may often affect the Regulatory Flexibility Act (5 U.S.C. source plans to undertake a change in emissions more. Although the source 601 et seq.) or sections 202 and 205 of operations that may adversely affect has to show that it was tested under the Unfunded Mandates Reform Act of compliance with an applicable D/F or representative conditions, we expect 1995 (Public Law 104–4). This rule also PM standard, the source must conduct that there are situations where a source is not subject to Executive Order 13045, a new performance test. As such, the can show that an increase in the Protection of Children from facility would only be required to re- production rate does not adversely Environmental Health Risks and Safety conduct the performance test if it affect compliance. Risks, (62 FR 19885, April 23, 1997) determines that an increase in the Only Transfer Points Used to Convey because EPA interprets Executive Order production rate may adversely affect Coal from the Mill to the Kiln are 13045 as applying only to those compliance (and, of course, that this Potential Affected Sources. This issue regulatory actions that are based on determination is correct). concerns the interface between the new health or safety risks, such that the We are clarifying today that a source source performance standards (NSPS) analysis required under section 5–501 of would need to re-conduct a performance for coal preparation plants (40 CFR part the Executive Order has the potential to test if the current operation is not 60, subpart Y) and the portland cement influence the regulation. This rule is not representative of the operation during NESHAP (40 CFR part 63, subpart LLL). subject to Executive Order 13045 the previous performance test such that The direct final amendments correctly because it does not establish an the change in operation may adversely revise § 63.1356 of the final rule to environmental standard intended to affect compliance. As discussed above, clarify that the systems used to convey mitigate health or safety risks. This rule production rate levels that are only and transfer coal from the coal mill to is not subject to Executive Order 13211, slightly higher than the production rate the kiln at portland cement plants that Actions Concerning Regulations That levels achieved during the previous are major sources of hazardous air Significantly Affect Energy Supply, performance test may not adversely pollutants are not subject to the NSPS Distribution, or Use because it is not a affect compliance, and therefore, may for coal preparation plants. However, significant regulatory action under still be representative. Although the industry trade association believes Executive Order 12866. This rule does increased production rates would tend the April 5, 2002, preamble language not have any federalism implications to increase exhaust gas stream flow rates confuses the issue. In response, we under Executive Order 13132, and, therefore, potentially diminish clearly state that the only subpart Y Federalism. The Paper Reduction Act control device effectiveness, there are sources potentially subject to subpart and the National Technology Transfer other factors which may be more LLL requirements at major sources are and Advancement Act do not apply important in controlling emissions and the transfer points used to convey coal here. The Congressional Review Act, 5
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U.S.C. 801 et seq., as added by the Small effective date of July 5, 2002. The EPA the Code of Federal Regulations is Business Regulatory Enforcement will submit a report containing this rule amended as follows: Fairness Act of 1996, generally provides and other required information to the that before a rule may take effect, the U.S. Senate, the U.S. House of PART 63—[AMENDED] agency promulgating the rule must Representatives, and the Comptroller submit a rule report, which includes a General of the United States prior to 1. The authority citation for part 63 copy of the rule, to each House of the publication of the rule in the Federal continues to read as follows: Congress and to the Comptroller General Register. This action is not a ‘‘major Authority: 42 U.S.C. 7401, et seq. of the United States. Section 808 allows rule’’ as defined by 5 U.S.C. 804(2). the issuing agency to make a rule List of Subjects in 40 CFR Part 63 Subpart LLL—[AMENDED] effective sooner than otherwise Environmental protection, 2. Table 1 to § 63.1350, entitled provided by the Congressional Review Administrative practice and procedure, Act if the agency makes a good cause ‘‘Monitoring Requirements,’’ is Air pollution control, Reporting and amended by revising the entry for raw finding that notice and public procedure recordkeeping requirements. is impracticable, unnecessary or mills and finish mills at major sources/ contrary to the public interest. This Dated: June 26, 2002. opacity to read as follows: Robert Brenner, determination must be supported by a § 63.1350 Monitoring requirements. brief statement (5 U.S.C. 808(2)). As Acting Assistant Administrator for Air and stated previously, EPA has made such a Radiation. * * * * * good cause finding, including the For the reasons stated in the reasons therefore, and established an preamble, title 40, chapter 1, part 63 of
TABLE 1 TO § 63.1350.—MONITORING REQUIREMENTS
Affected source/pollutant or opacity Monitor type/operation/process Monitoring requirements
*******
Raw mills and finish mills at major sources/ Method 22 visible emissions test. (This re- Conduct daily 6-minute Method 22 visible opacity. quirement does not apply to a raw mill or emissions test while mill is operating at rep- finish mill equipped with a continuous opac- resentative performance conditions; if visible ity monitor or bag leak detection system.). emissions are observed, initiate corrective action within 1 hour and conduct follow up Method 22 test. If visible emissions are ob- served, conduct 30-minute Method 9 test...... Continuous opacity monitor, if applicable ...... Install, operate, and maintain in accordance with general provisions and with PS–1. A six-minute average greater than 10% opac- ity is a violation...... Bag leak detection system, if applicable ...... Install, operate, and maintain in accordance with § 63.1350(m). Operate and maintain such that alarm is not activated and alarm condition does not exist for more than 5% of the total operating time in a 6-month period. If alarm sounds, initiate corrective action.
[FR Doc. 02–16644 Filed 7–3–02; 8:45 am] nonattainment area in Alaska has area has attained the CO NAAQS by the BILLING CODE 6560–50–P attained the National Ambient Air applicable attainment date. In this case Quality Standards (NAAQS) for CO by the EPA was required to make a the deadline required by the Clean Air determination concerning whether the ENVIRONMENTAL PROTECTION Act Amendments of 1990 (CAAA), Fairbanks serious CO nonattainment AGENCY December 31, 2001. area attained the NAAQS by its EFFECTIVE DATE: August 5, 2002. December 31, 2001, attainment date. 40 CFR Part 81 FOR FURTHER INFORMATION CONTACT: Pursuant to the CAAA, the EPA is [Docket # AK–02–003; FRL–7240–8] Connie Robinson, EPA, Region 10, required to make an attainment Office of Air Quality, Mail Code: OAQ– determination for this area by June 30, Determination of Attainment for the 107, 1200 Sixth Avenue, Seattle 2002, no later than six months following Carbon Monoxide National Ambient Air Washington, 98101, (206) 553–1086. the attainment date for the area. This Quality Standard for Fairbanks Carbon final rule was based on all available, Monoxide Nonattainment Area, Alaska SUPPLEMENTARY INFORMATION: Throughout this document wherever quality-assured data collected from the AGENCY: Environmental Protection ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used we mean CO monitoring sites, which has been Agency (EPA). EPA. entered into the Aerometric Information ACTION: Final rule. I. Background SUMMARY: EPA is determining that the EPA has the responsibility for Fairbanks Carbon Monoxide (CO) determining whether a nonattainment
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Retrieval System (AIRS). This data was requirements and imposes no additional Paperwork Reduction Act of 1995 (44 reviewed to determine the area’s air requirements beyond those imposed by U.S.C. 3501 et seq.). quality status in accordance with EPA state law. Accordingly, the The Congressional Review Act, 5 guidance at 40 CFR 50.8, and in Administrator certifies that this rule U.S.C. 801 et seq., as added by the Small accordance with EPA policy and will not have a significant economic Business Regulatory Enforcement guidance as stated in a memorandum impact on a substantial number of small Fairness Act of 1996, generally provides from William G. Laxton, Director entities under the Regulatory Flexibility that before a rule may take effect, the Technical Support Division, entitled Act (5 U.S.C. 601 et seq.). Because this agency promulgating the rule must ‘‘Ozone and Carbon Monoxide Design rule approves pre-existing requirements submit a rule report, which includes a Value Calculations,’’ dated June 18, under state law and does not impose copy of the rule, to each House of the 1990. any additional enforceable duty beyond Congress and to the Comptroller General On May 23, 2002 (67 FR 36135), EPA that required by state law, it does not of the United States. EPA will submit a proposed to determine that the contain any unfunded mandate or report containing this rule and other Fairbanks CO nonattainment area in significantly or uniquely affect small required information to the U.S. Senate, Alaska has attained the National governments, as described in the the U.S. House of Representatives, and Ambient Air Quality Standards Unfunded Mandates Reform Act of 1995 the Comptroller General of the United (NAAQS) for CO as of December 31, (Public Law 104–4). States prior to publication of the rule in 2001. A detailed discussion of EPA’s This rule also does not have tribal the Federal Register. A major rule proposal is contained in the May 23, implications because it will not have a cannot take effect until 60 days after it 2002, proposed rule and will not be substantial direct effect on one or more is published in the Federal Register. restated here. The reader is referred to Indian tribes, on the relationship This action is not a ‘‘major rule’’ as the proposed rule for more details. between the Federal Government and defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean II. Public Comments Indian tribes, or on the distribution of power and responsibilities between the Air Act, petitions for judicial review of We received no comments in response Federal Government and Indian tribes, this action must be filed in the United to EPA’s proposed action to determine as specified by Executive Order 13175 States Court of Appeals for the that the Fairbanks CO nonattainment (65 FR 67249, November 9, 2000). This appropriate circuit by September 3, area in Alaska has attained the National action also does not have Federalism 2002. Filing a petition for Ambient Air Quality Standards implications because it does not have reconsideration by the Administrator of (NAAQS) for carbon monoxide as of substantial direct effects on the States, this final rule does not affect the finality December 31, 2001. on the relationship between the national of this rule for the purposes of judicial III. Attainment Determination government and the States, or on the review nor does it extend the time within which a petition for judicial EPA has determined that the distribution of power and responsibilities among the various review may be filed, and shall not Fairbanks serious CO nonattainment postpone the effectiveness of such rule area has attained the CO NAAQS by its levels of government, as specified in Executive Order 13132 (64 FR 43255, or action. This action may not be attainment date of December 31, 2001. challenged later in proceedings to Consistent with CAAA section 188, the August 10, 1999). This action merely approves a state rule implementing a enforce its requirements. (See section area will remain a serious CO 307(b)(2).) nonattainment area with the additional Federal standard, and does not alter the planning requirements that apply to relationship or the distribution of power List of Subjects in 40 CFR Part 81 serious CO nonattainment areas. This and responsibilities established in the Environmental protection, Air finding of attainment should not be Clean Air Act. This rule also is not pollution control, Carbon monoxide, confused with a redesignation to subject to Executive Order 13045 National parks, Reporting and attainment under CAAA section 107(d). ‘‘Protection of Children from recordkeeping requirements, Wilderness Alaska has not submitted a maintenance Environmental Health Risks and Safety areas. Risks’’ (62 FR 19885, April 23, 1997), plan as required under section 175A(a) Dated: June 26, 2002. of the CAAA for redesignation to because it is not economically Ronald A. Kreizenbeck, attainment. The designation status in 40 significant. CFR part 81 will remain serious In reviewing SIP submissions, EPA’s Acting Regional Administrator, Region 10. nonattainment for the Fairbanks CO role is to approve state choices, [FR Doc. 02–16854 Filed 7–3–02; 8:45 am] nonattainment area until such time as provided that they meet the criteria of BILLING CODE 6560–50–P EPA finds that Alaska has met the the Clean Air Act. In this context, in the CAAA requirements for redesignation to absence of a prior existing requirement ENVIRONMENTAL PROTECTION attainment. for the State to use voluntary consensus standards (VCS), EPA has no authority AGENCY IV. Administrative Requirements to disapprove a SIP submission for 40 CFR Part 228 Under Executive Order 12866 (58 FR failure to use VCS. It would thus be 51735, October 4, 1993), this action is inconsistent with applicable law for [FRL–7241–2] not a ‘‘significant regulatory action’’ and EPA, when it reviews a SIP submission, therefore is not subject to review by the to use VCS in place of a SIP submission Ocean Dumping; Site Designation Office of Management and Budget. For that otherwise satisfies the provisions of AGENCY: Environmental Protection this reason, this action is also not the Clean Air Act. Thus, the Agency (EPA). subject to Executive Order 13211, requirements of section 12(d) of the ACTION: Final rule. ‘‘Actions Concerning Regulations That National Technology Transfer and Significantly Affect Energy Supply, Advancement Act of 1995 (15 U.S.C. SUMMARY: EPA today designates a new Distribution, or Use’’ (66 FR 28355, May 272 note) do not apply. This rule does Ocean Dredged Material Disposal Site 22, 2001). This action merely approves not impose an information collection (ODMDS) in the Atlantic Ocean offshore state law as meeting Federal burden under the provisions of the Wilmington, North Carolina, as an EPA-
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approved ocean dumping site for the consideration of all environmental disapprove any ocean disposal project disposal of suitable dredged material. aspects of proposed actions. While if, in its judgment, the MPRSA This action is necessary to provide an NEPA does not apply to EPA activities environmental criteria (section 102(a)) acceptable ocean disposal site for of this type, EPA has voluntarily or conditions of designation (section consideration as an option for dredged committed to prepare EISs in 102(c)) are not met. material disposal projects in the greater connection with ocean disposal site The FEIS discusses the need for this Cape Fear River, North Carolina designations such as this (see 39 FR site designation and examines ocean vicinity. This site designation is for an 16186 (May 7, 1974)). disposal site alternatives to the indefinite period of time, but the site is EPA, in cooperation with the proposed action. Non-ocean disposal subject to continuing monitoring to Wilmington District of the U.S. Army options have been examined and are insure that unacceptable adverse Corps of Engineers (COE), has prepared discussed in the FEIS. a Final EIS (FEIS) entitled ‘‘Final environmental impacts do not occur. C. Site Designation DATES: This final rule is effective on Environmental Impact Statement for the The site is located approximately 5 August 5, 2002. New Wilmington Ocean Dredged Material Disposal Site Designation.’’ On nautical miles offshore Bald Head ADDRESSES: Send comments to: Wesley November 30, 2001, the Notice of Island. The ODMDS occupies an area of B. Crum, Chief, Coastal Section, Water 2 Availability (NOA) of the FEIS for about 9.4 square nautical miles (nmi ). Management Division, U.S. public review and comment was Water depths within the area range from Environmental Protection Agency, published in the Federal Register (66 35–52 feet (ft.). The coordinates of the Region 4, 61 Forsyth Street, Atlanta, FR 59787 (November 30, 2001)). Anyone New Wilmington site are as follows: Georgia 30303. desiring a copy of the EIS may obtain 33°46′ N ...... 78°02.5′ W FOR FURTHER INFORMATION CONTACT: Gary one from the address given above. The 33°46′ N ...... 78°01′ W W. Collins, 404/562–9395. public comment period on the final EIS 33°41′ N ...... 78°01′ W SUPPLEMENTARY INFORMATION: closed on December 31, 2001. 33°41′ N ...... 78°04′ W. A. Background The proposed rule was published for public review and comment in the D. Regulatory Requirements Section 102(c) of the Marine Federal Register (67 FR 15348 (April 1, Pursuant to the Ocean Dumping Protection, Research, and Sanctuaries 2002)). No comments were received. Regulations, 40 CFR 228.5, five general Act (MPRSA) of 1972, as amended, 33 This rule permanently designates the criteria are used in the selection and U.S.C. 1401 et seq., gives the continuing use of the new ODMDS near approval for continuing use of ocean Administrator of EPA the authority to Wilmington, North Carolina. The disposal sites. Sites are selected so as to designate sites where ocean disposal purpose of the action is to provide an minimize interference with other may be permitted. On October 1, 1986, environmentally acceptable option for marine activities, to prevent any the Administrator delegated the the continued ocean disposal of dredged temporary perturbations associated with authority to designate ocean disposal material. The need for the permanent the disposal from causing impacts sites to the Regional Administrator of designation of a new Wilmington outside the disposal site, and to permit the Region in which the sites are ODMDS is based on a demonstrated effective monitoring to detect any located. This designation of a new site COE need for ocean disposal of adverse impacts at an early stage. Where offshore Wilmington, North Carolina, maintenance dredged material from the feasible, locations off the Continental which is within Region 4, is being made Federal navigation projects in the Shelf and other sites that have been pursuant to that authority. greater Cape Fear River area and the historically used are to be chosen. If, at The EPA Ocean Dumping Regulations issues raised by site capacity and any time, disposal operations at a site promulgated under MPRSA (40 CFR channel realignment. However, every cause unacceptable adverse impacts, chapter I, subchapter H, § 228.4) state disposal activity by the COE is further use of the site can be restricted that ocean dumping sites will be evaluated on a case-by-case basis to or terminated by EPA. The site conforms designated by promulgation in this part determine the need for ocean disposal to the five general criteria. 228. The existing ODMDS was for that particular case. The need for In addition to these general criteria in designated and has been used since ocean disposal for other projects, and § 228.5, § 228.6 lists the 11 specific 1987. However, site capacity limitations the suitability of the material for ocean criteria used in evaluating a proposed and a proposed realignment of the ocean disposal, will be determined on a case- disposal site to assure that the general bar channel negate the utility of the by-case basis as part of the COE’s criteria are met. Application of these 11 existing site. The details of these issues process of issuing permits for ocean criteria constitutes an environmental can be found in the ‘‘Final disposal for private/federal actions and assessment of the impact of disposal at Environmental Impact Statement for the a public review process for their own the site. The characteristics of the site New Wilmington Ocean Dredged actions. are reviewed below in terms of these 11 Material Disposal Site Designation.’’ For the new Wilmington ODMDS, the criteria (the EIS may be consulted for COE and EPA would evaluate all federal B. EIS Development additional information). dredged material disposal projects 1. Geographical position, depth of Section 102(2)(C) of the National pursuant to the EPA criteria given in the water, bottom topography, and distance Environmental Policy Act (NEPA) of Ocean Dumping Regulations (40 CFR from coast (40 CFR 228.6(a)(1)). 1969, as amended, 42 U.S.C. 4321 et parts 220 through 229) and the COE The boundary of the site is given seq., requires that federal agencies regulations (33 CFR 209.120 and 335– above. The northern boundary of the prepare an Environmental Impact 338). The COE then issues Marine site is located about 5 nmi offshore of Statement (EIS) on proposals for Protection, Research, and Sanctuaries Bald Head Island, North Carolina. The legislation and other major federal Act (MPRSA) permits after compliance site is approximatelty 9.4 nmi2 in area. actions significantly affecting the with regulations is determined to Water depth in the area ranges from 35– quality of the human environment. The private applicants for the transport of 52 ft. object of NEPA is to build into the dredged material intended for ocean 2. Location in relation to breeding, Agency decision making process careful disposal. EPA has the right to spawning, nursery, feeding, or passage
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areas of living resources in adult or 7. Existence and effects of current and EPA/Region 4 assumes overall juvenile phases (40 CFR 228.6(a)(2)). previous discharges and dumping in the responsibility for site management. Many of the area’s species spend their area (including cumulative effects) (40 The Site Management and Monitoring adult lives in the offshore region, but are CFR 228.6(a)(7)). Plan (SMMP) for the New Wilmington estuary-dependent because their The existing ODMDS has been used to ODMDS was developed as a part of the juvenile stages use a low salinity dispose of the material from the Cape process of completing the EIS. This plan estuarine nursery region. Specific Fear River project for fifteen years. provides procedures for both site migration routes are not known to occur Subsequent monitoring of these management and for the monitoring of within the site. The site is not known to disposals and the long-term effects show effects of disposal activities. This SMMP include any major breeding or spawning that no adverse impacts have, or are is intended to be flexible and may be area. Due to the motility of finfish, it is likely to occur to the area. modified by the responsible agency for unlikely that disposal activities will 8. Interference with shipping, fishing, cause. have any significant impact on any of recreation, mineral extraction, the species found in the area. desalination, fish and shellfish culture, F. Action 3. Location in relation to beaches and areas of special scientific importance The EIS concludes that the site may other amenity areas (40 CFR and other legitimate uses of the ocean appropriately be designated for use. The 228.6(a)(3)). (40 CFR 228.6(a)(8)). site is compatible with the 11 specific The site is located approximately 5 The shape of the ODMDS was and 5 general criteria used for site nautical miles from the coast. designed to avoid interference with evaluation. Considering the previous disposal commericial shipping. The location was The designation of the New activities of the existing ODMDS and also selected to move away from Wilmington site as an EPA-approved further distance that the new disposal commercial fishing, particularly ODMDS is being published as Final site is offshore of beach areas, dredged trawling bottoms. It is not anticipated Rulemaking. Overall management of material disposal at the site is not that the site would interfere with any this site is the responsibility of the expected to have an effect on the recreational activity. In addition, Regional Administrator of EPA/Region recreational uses of these beaches. mineral extraction, fish and shellfish 4. 4. Types and quantities of wastes culture, and desalination activities do It should be emphasized that, if an proposed to be disposed of, and not occur in the area. ODMDS is designated, such a site proposed methods of release, including 9. The existing water quality and designation does not constitute EPA’s methods of packing the waste, if any (40 ecology of the site as determined by approval of actual disposal of material CFR 228.6(a)(4)). available data or by trend assessment or at sea. Before ocean disposal of dredged The type of materials to be disposed baseline surveys (40 CFR 228.6(a)(9)). material at the site may commence, the of within this site is dredged material as Appropriate water quality and COE must evaluate a permit application described in type and quantity by ecological assessments have been according to EPA’s Ocean Dumping section 2 of the FEIS. Disposal would be performed at the site. Site-specific Criteria. EPA has the right to disapprove by hopper dredge or dump scow. All information concerning the water the actual disposal if it determines that disposals shall be in accordance with quality and ecology at the ODMDS is environmental concerns under MPRSA the approved Site Management and presented in the FEIS. A copy of the have not been met. Monitoring Plan developed for this site FEIS may be obtained at any of the The New Wilmington ODMDS is not (FEIS, appendix A). addresses given above. restricted to disposal use by federal 5. Feasibility of surveillance and 10. Potentiality for the development or projects; private applicants may also monitoring (40 CFR 228.6(a)(5)). recruitment of nuisance species in the dispose suitable dredged material at the Due to the relative proximity of the disposal site (40 CFR 228.6(a)(10)). ODMDS once relevant regulations have site to shore and its depth, surveillance The disposal of dredged materials been satisfied. This site is restricted, will not be difficult. The Site should not attract or promote the however, to suitable dredged material Management and Monitoring Plan development of nuisance species. No from the greater Wilmington, North (SMMP) for the New Wilmington nuisance species have been reported to Carolina vicinity. ODMDS has been developed and was occur at previously utilized disposal included as an appendix in the FEIS. sites in the vicinity. G. Regulatory Assessments This SMMP establishes a sequence of 11. Existence at or in close proximity 1. Regulatory Flexibility Act monitoring surveys to be undertaken to to the site of any significant natural or determine any impacts resulting from cultural features of historical Under the Regulatory Flexibility Act, disposal activities. The SMMP may be importance (40 CFR 228.6(a)(11)). EPA is required to perform a Regulatory modified for cause by the responsible The only resource known to exist in Flexibility Analysis for all rules that agency. A copy of the SMMP may be close proximity to the site is the wreck may have a significant impact on a obtained at the any of the addresses of the Virginius. This wreck lies outside substantial number of small entities. given above. the eastern boundary of the site. Since EPA has determined that this action will 6. Dispersal, horizontal transport and no disposal will occur within 600 ft. of not have a significant impact on small vertical mixing characteristics of the the boundary, and the wreck lies in entities since the modification will only area including prevailing current shallower water, placement of material have the effect of providing an direction and velocity, if any (40 CFR within the site is not expected to environmentally acceptable disposal 228.6(a)(6)). adversely affect it. option for dredged material on a A detailed current study, along with continued basis. Consequently, this fate modelling of dredged material, was E. Site Management Rule does not necessitate preparation of conducted within the site and can be Site management of the New a Regulatory Flexibility Analysis. found described in the FEIS. The Wilmington ODMDS is the findings of these studies indicate that responsibility of EPA as well as the 2. Executive Order 12866 transport of disposed material should COE. The COE issues permits to private Under Executive Order 12866, EPA not present any adverse impacts. applicants for ocean disposal; however, must determine whether the regulatory
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action is ‘‘significant’’ and therefore potentially effective and reasonably the Comptroller General of the United subject to OMB review and the feasible alternatives considered by EPA. States prior to publication of the rule in requirements of the Executive Order. This final rule is not subject to the the Federal Register. A Major rule The Order defines ‘‘significant Executive Order because it is not cannot take effect until 60 days after it regulatory action’’ as one that is likely economically significant as defined in is published in the Federal Register. to result in a rule that may: Executive Order 12866, and because This action is not a ‘‘major rule’’ as (1) Have an annual effect on the EPA does not have any reason to believe defined by 5 U.S.C. 804(2). This rule economy of $100 million or more or the environmental health or safety risks will be effective August 5, 2002. adversely affect in a material way the addressed by this action present a This Final Rule does not contain any economy, a sector of the economy, disproportionate risk to children. As information collection requirements productivity, competition, jobs, the described elsewhere in this preamble, subject to Office of Management and environment, public health or safety, or today’s final rule would only have the Budget review under the Paperwork State, local, or tribal governments or effect of providing a continual use of an Reduction Act of 1980, 44 U.S.C. 3501 communities; ocean disposal site pursuant to section et seq. (2) Create a serious inconsistency or 102(c) of MPRSA. List of Subjects in 40 CFR Part 228 otherwise interfere with an action taken 5. Executive Order 13132 or planned by another agency; Executive Order 13132, entitled Environmental protection, Water (3) Materially alter the budgetary ‘‘Federalism’’ (64 FR 43255, August 10, pollution control. impact of entitlements, grants, user fees, 1999), requires EPA to develop an Dated: June 7, 2002. or loan programs or the rights and accountable process to ensure obligations of recipients thereof; or J.I. Palmer, Jr., ‘‘meaningful and timely input by State Regional Administrator, Region 4. (4) Raise novel legal or policy issues and local officials in the development of arising out of legal mandates, the regulatory policies that have federalism In consideration of the foregoing, President’s priorities, or the principles implications.’’ ‘‘Policies that have subchapter H of chapter I of title 40 is set forth in the Executive Order. federalism implications’’ is defined in amended as follows. It has been determined that this rule the Executive Order to include is not a ‘‘significant regulatory action’’ regulations that have ‘‘substantial direct PART 228—[AMENDED] under the terms of Executive Order effects on the States, on the relationship 12866 and is therefore not subject to between the national government and 1. The authority citation for part 228 OMB review. the States, or on the distribution of continues to read as follows: 3. Executive Order 13175 power and responsibilities among the Authority: 33 U.S.C. 1412 and 1418. various levels of government.’’ Executive Order 13175, entitled This final rule does not have 2. Section 228.15 is amended by ‘‘Consultation and Coordination with federalism implications. It will not have adding paragraph (h)(20) to read as Indian Tribal Governments’’ (65 FR substantial direct effects on the States, follows: 67249, November 9, 2000), requires EPA on the relationship between the national to develop an accountable process to government and the States, or on the § 228.15 Dumping sites designated on a final basis. ensure ‘‘meaningful and timely input by distribution of power and tribal officials in the development of responsibilities among the various * * * * * regulatory policies that have tribal levels of government, as specified in (h) * * * implications.’’ This final rule does not Executive Order 13132. As described (20) New Wilmington, NC; Ocean have tribal implications, as specified in elsewhere in this preamble, today’s final Dredged Material Disposal Site. Executive Order 13175. As described rule would only have the effect of elsewhere in this preamble, today’s final providing a continual use of an ocean (i) Location: rule would only have the effect of disposal site pursuant to section 102(c) 33°46′ N ...... 78°02.5′ W. providing a continual use of an ocean of MPRSA. Thus, Executive Order 33°46′ N ...... 78°01′ W. disposal site pursuant to section 102(c) 13132 does not apply to this rule. 33°41′ N ...... 78°01′ W. of MPRSA. Thus, Executive Order Although section 6 of Executive Order 33°41′ N ...... 78°04′ W. 13175 does not apply to this rule. 13132 does not apply, EPA did consult 4. Executive Order 13045 with State officials in developing this (ii) Size: Approximately 9.4 square rule and no concerns were raised. nautical miles. Executive Order 13045, Protection of (iii) Depth: Ranges from 35–52 feet. Children from Environmental Health 6. Congressional Review Act Risks and Safety Risks (62 FR 19885, The Congressional Review Act, 5 (iv) Primary use: Dredged material. April 23, 1997) applies to any rule that: U.S.C. 801 et seq., as added by the Small (v) Period of use: Continuing use. (1) Is determined to be ‘‘economically Business Regulatory Enforcement significant’’ as defined under Executive Fairness Act of 1996, generally provides (vi) Restriction: Disposal shall be Order 12866, and (2) concerns an that before a rule may take effect, the limited to suitable dredged material environmental health or safety risk that agency promulgating the rule must from the greater Wilmington, North EPA has reason to believe may have a submit a rule report, which includes a Carolina vicinity. Disposal shall comply disproportionate effect on children. If copy of the rule, to each House of the with conditions set forth in the most the regulatory action meets both criteria, Congress and to the Comptroller General recent approved Site Management and EPA must evaluate the environmental of the United States. EPA will submit a Monitoring Plan. health or safety effects of the planned report containing this rule and other * * * * * rule on children, and explain why the required information to the U.S. Senate, [FR Doc. 02–16855 Filed 7–3–02; 8:45 am] planned regulation is preferable to other the U.S. House of Representatives, and BILLING CODE 6560–50–P
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FEDERAL MARITIME COMMISSION some passenger vessel operators,2 Alaska Sightseeing Tours (‘‘Cruise reduced the amount of coverage West’’), Glacier Bay Park Concessions, 46 CFR Part 540 required. Inc. d/b/a Glacier Bay Cruiseline [Docket No. 02–07] The Commission’s implementing (‘‘Glacier Bay’’), Goldbelt, Incorporated regulations at 46 CFR part 540, subpart (‘‘Goldbelt’’), International Group of P&I Financial Responsibility Requirements A, currently require PVOs to evidence Clubs (‘‘P&I Clubs’’), and the Passenger for Nonperformance of financial responsibility by means of self- Vessel Association (‘‘PVA’’). Goldbelt is Transportation—Discontinuance of insurance, guaranty, escrow the sole shareholder of Glacier Bay. The Self-Insurance and the Sliding Scale, arrangement, surety bond, insurance P&I Clubs is an organization of and Guarantor Limitations policy, or combination thereof. Protection and Indemnity Associations, Financial responsibility must be some of which have provided section 3 AGENCY: Federal Maritime Commission. established in the amount of at least guarantees under the Commission’s ACTION: Final rule. 110% of the PVO’s highest unearned program. PVA is an association of U.S.- passenger revenue (‘‘UPR’’) 3 over the flag passenger vessels of all types, SUMMARY: The Federal Maritime most recent two-year period, subject to including overnight cruise vessels. The Commission (‘‘Commission’’) is a $15 million maximum for those PVOs remaining commenters are PVOs that amending its rules on passenger vessel establishing financial responsibility by participate in the Commission’s financial responsibility for means other than self-insurance or program. nonperformance of transportation, by escrow agreement. However, under American West, a U.S. flag PVO, is eliminating the availability of self- current regulations, those PVOs not the only commenter to state that it fully insurance, limiting guarantees to those qualifying by self-insurance may elect to supports the proposed changes. Protection and Indemnity Associations use a sliding scale formula to compute However, American West also supports approved by the Commission, and a reduced amount of financial an in-depth review by the Commission discontinuing the existing sliding scale responsibility required, if they can of all of its financial responsibility formula for determining the amount of establish five years operational regulations. In particular, American coverage required. experience in the U.S. trades with a West supports lifting of the current $15 DATES: This rule is effective August 5, satisfactory explanation of any claim for million maximum coverage 2002. nonperformance. Self-insuring PVOs requirement, supports reducing the FOR FURTHER INFORMATION CONTACT: currently must establish net worth equal required coverage from 110% of UPR to Sandra L. Kusumoto, Director, Bureau of to at least 110% of UPR. 100%, and believes the Commission Consumer Complaints and Licensing, In determining to amend its should consider the role of credit cards Federal Maritime Commission, 800 regulations, the Commission cited and third-party travel insurance in North Capitol Street, NW., Room 970, recent bankruptcies of several PVOs, determining the amount of coverage Washington, DC 20573–0001, 202–523– coupled with the experience of required. None of those suggestions is 5787, E-mail: [email protected]. passengers in receiving payment in within the scope of this proposed rule. satisfaction of claims, as causing the Carnival, one of the larger PVOs, SUPPLEMENTARY INFORMATION: On April 23, 2002, the Commission published in Commission to re-evaluate its rules states that the increase in the fleets of governing PVO coverage for the larger PVOs in recent years has the Federal Register a notice of nonperformance. Also, the Commission increased the shortfall in coverage proposed rulemaking, 67 FR 19730, to referred to the lapse of time before the between the current $15 million amend 46 CFR part 540, the Commission becomes aware of maximum coverage requirement and the implementing regulations for section 3, substantial changes in financial and actual amount of unearned passenger Pub. L. 89–777, 46 U.S.C. app. 817e, economic conditions, the greater risk to revenues. Carnival believes that (‘‘section 3’’).1 Section 3 requires that passengers posed by self-insurers under eliminating self-insurance while passenger vessel operators (‘‘PVOs’’) the Commission’s program, the current maintaining the current $15 million cap establish financial responsibility to economic uncertainty and its effect on does little to provide the necessary indemnify passengers for sales of cruises, and the impending financial security to passengers. nonperformance of transportation. The substantial increase in cruise ship Carnival suggests that the Commission’s amendments would eliminate self- capacity. rules should be drawn so as to be ‘‘self- insurance as a means of evidencing adjusting’’ as cruise lines increase in Comments required financial responsibility, limit size. Moreover, Carnival reiterates its guarantors of financial responsibility to Comments on the proposed rule were comments to proposed rules in 1994 those Protection and Indemnity filed by American West Steamboat and 1996, namely that the Commission’s Associations approved by the Company, LLC (‘‘American West’’), rules should allow foreign and U.S. Commission, and eliminate the Carnival Corporation (‘‘Carnival’’),4 companies with investment grade credit availability of a sliding scale that, for West Travel, Inc. d/b/a Cruise West and ratings and strong balance sheets to qualify for self-insurance and increase 1 Section 3 provides, in pertinent part: 2 For the purposes of section 3, a PVO is the current $15 million cap. In addition, (a) No person in the United States shall arrange, considered to be any person in the United States offer, advertise, or provide passage on a vessel that arranges, offers, advertises or provide passage Carnival recommends that the having berth or stateroom accomodations for fifty or on a vessel having berth or stateroom Commission support a change in Public more passengers and which is to embark passengers accomodations for fifty or more passengers and Law 89–777 to extend the financial at United States ports without there first having which embarks passengers at U.S. ports. responsibility requirements to voyages been filed with the Federal Maritime Commission 3 UPR means ‘‘passenger revenue recieved for such information as the Commission may deem water transportation and all other accomodations, embarking U.S. passengers in foreign necessary to establish the financial responsibility of services, and facilities relating thereto not yet ports. the person arranging, offering, advertising, or performed.’’ (46 CFR 540.2(i)). Cruise West, a U.S. flag PVO, believes providing such transportation, or, in lieu thereof, a 4 Carnival’s comments were submitted on behalf the Commission should allow itself the copy of a bond or other security, in such form as of Carnival Cruise Lines, Holland America Line, flexibility to evaluate particular the Commission, by rule or regulation, may require Cunard Line, Seabourn Cruise Line, Costa Cruises and accept, for indemnification of passengers for and Windstar Cruises, all of which are owned by operators and determine appropriate nonperformance of the transportation Carnival. evidence of financial responsibility as
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warranted by the particular operator’s acknowledges that recent circumstances PVA indicate a desire that the statute be circumstances. Cruise West states that warrant review of the Commission’s amended to impose financial the proposed rule could jeopardize current rules. However, PVA states that responsibility requirements on voyages smaller U.S. operators by putting them the proposed rule (1) puts smaller embarking U.S. passengers from foreign at a competitive disadvantage with vessels at a disadvantage, because the ports. We know about the failures of respect to larger foreign operators. $15 million ceiling allows larger vessel three PVOs within the past two years Cruise West points out that, because of operators to cover only a fraction of the which affected U.S. passengers the current $15 million ceiling, a major UPR, (2) discriminates against U.S. flag embarking from foreign ports. Two of cruise line with hundreds of millions of operators because the statute’s those PVOs participated in the dollars in UPR would be required to requirements only apply to a vessel Commission’s program by having cover only a small fraction of its UPR, embarking passengers at United States coverage for certain vessels embarking whereas a smaller operator with a total ports (the Alaska trade is cited as an passengers at U.S. ports (but not for U.S. UPR of only $15 million, would have to example, with most foreign flag passengers embarking at foreign ports). cover 100% of its UPR. Cruise West operators allegedly embarking Accordingly, those passengers who were asserts this places smaller companies at passengers at Vancouver, British to embark from U.S. ports were a significant competitive disadvantage, Columbia), and (3) does not provide protected under the Commission’s and believes that the sliding scale was affected operators with sufficient time to program, while other U.S. passengers intended to partially alleviate that comply. had no protection. No passengers of the disadvantage. Moreover, Cruise West P&I Clubs is concerned that many third PVO were protected by the states that self-insurance is one of the vessel operators that have become self- Commission’s program. The few advantages to maintaining a U.S. insurers in recent years will look to the Commission has previously supported based cruise line, because self-insurance P&I Clubs to provide the necessary legislation to require coverage for ticket is expressly tied to ownership of U.S. security. P&I Clubs makes clear that its contracts sold in the United States, even based assets, an important factor members would not be willing to for passengers embarking from foreign considered in enacting Public Law 89– increase their current involvement, and ports. The Commission intends to 777. Cruise West suggests that closer asks that the rule be reconsidered or reiterate its concerns to Congress. scrutiny of self-insured cruise lines, postponed in order to provide more The concern of P&I Clubs that many requiring additional coverage as detailed consultation with the cruise current self-insurers will look to its appropriate, is better than eliminating industry. members for required coverage appears to be unwarranted. Contrary to P&I self-insurance. Cruise West therefore Discussion believes that the Commission should Clubs’ assertion, the elimination of self- retain the option to accept self- A number of comments deal with insurance and limitation of guarantors insurance and sliding scale coverage on issues outside the scope of this will affect only two PVOs currently in a case-by-case basis. Lastly, Cruise West rulemaking. Several comments indicate the Commission’s program. Preliminary indicates that an immediate and a desire that the Commission lift its indications are that neither of those complete transition to the new rule current $15 million ceiling. American PVOs would look to Protection and would have significant, potentially West supports lifting the ceiling, and Indemnity Associations for coverage. devastating, effects on Cruise West. believes this should be part of a Cruise West, Glacier Bay (and Cruise West asks that sufficient time for comprehensive review of Commission Goldbelt) and PVA oppose the proposed transition to the new rules be provided, regulations. PVA and Cruise West rule, expressing concern about its and that the Commission give itself the indicate that the ceiling creates a impact on smaller, U.S. flag PVOs, latitude to handle this transition on a competitive disadvantage for smaller which they claim will be disadvantaged. case-by-case basis. U.S. flag operators, as compared to their Cruise West suggests that the Glacier Bay and its owner, Goldbelt, larger, foreign flag competitors. Commission maintain the flexibility to indicate that the proposed rule would Interestingly, one of the larger, foreign approve self-insurance and sliding scale cause Glacier Bay considerable financial flag operators, Carnival, also believes treatment on a case-by-case basis. hardship, which could force Glacier Bay that the ceiling should be lifted, and Should the Commission finalize the to discontinue operations. Goldbelt should automatically adjust in line with proposed rules, all ask for time to phase states that escrowing deposits is not an increasing UPR. The Commission is in their compliance. acceptable alternative, since Glacier Bay mindful that the $15 million ceiling is The Commission is concerned about begins selling cruises up to nine months only a fraction of the UPR potentially at the financial protection provided to before its May through September risk for some PVOs, and shares the passengers under its program, and operating season, and needs those concerns of these commenters. believes that self-insurance is a matter deposits as working capital to prepare Accordingly, the Commission has requiring immediate protection. The for the operating season. Goldbelt states directed its staff to undertake a bankruptcy of a self-insurer leaves many that preliminary quotes from its comprehensive review of the passengers devoid of protection. Cruise insurance broker indicate that a bond Commission’s rules, including whether West argues that rather than eliminate will cost anywhere from $150,000 to to change the ceiling. Based on that self-insurance, the Commission should $200,000. Glacier Bay indicates that its review, the Commission may institute a scrutinize more closely the financial prices for next year are in the process future rulemaking proceeding. Since the condition of self-insurers and require of being set, and Goldbelt states that ceiling was not addressed in this additional coverage as appropriate. prices are already set for this year, with proposed rule, however, the While such an approach may appear to no way to recapture the additional costs Commission is unable to effect any have merit in theory, experience has that will be caused by this rule. Goldbelt changes through this proceeding. shown that requiring additional asks that, should the rule be made final, Another matter beyond the scope of coverage is virtually impossible once a it be phased in over a period of two this proceeding is the concern about the PVO’s financial condition has years. lack of protection available to those deteriorated. Even now, Cruise West PVA claims to be the ‘‘national voice’’ passengers on cruises not embarking and Glacier Bay argue that the of U.S. flag passenger vessels. PVA passengers at U.S. ports. Carnival and Commission should not impose greater
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requirements because of the financial issuance of this amendment to its rules, d. Redesignate paragraph (f) as impact. Once a self-insurer’s financial and allow some flexibility during a paragraph (d). situation has deteriorated, imposition of transition period. Accordingly, it is not The revisions read as follows: additional coverage requirements would necessary to modify the proposed rule increase the likelihood of the PVO’s to provide for such a transition period. § 540.5 Insurance, guaranties, and escrow failure and expose passengers to the Commission staff have contacted accounts. very losses the Commission’s program is those affected by this rule and will Except as provided in § 540.9(j), the designed to prevent. Also, experience continue to be available to discuss an amount of coverage required under this demonstrates that the lag time in effective transition. However, this section and § 540.6(b) shall be in an receiving financial data may prevent the should not be seen as a willingness on amount determined by the Commission Commission from knowing about a the part of the Commission to allow to be no less than 110 percent of the PVO’s financial deterioration until well continuation of self-insurance, even for unearned passenger revenue of the after it is too late to remedy the lack of a short time period. All affected parties applicant on the date within the two coverage. have been on notice of the fiscal years immediately prior to the In support of self-insurance, Cruise Commission’s intention in this regard filing of the application which reflects West, Glacier Bay (and Goldbelt) and since at least early February. The the greatest amount of unearned PVA indicate that its elimination would Commission has determined that self- passenger revenue. The Commission, for disadvantage small U.S. flag operators, insurance provides inadequate coverage, good cause shown, may consider a time since the qualifying assets currently and that it must undertake to make sure period other than the previous two- must be maintained in the United that passengers achieve the protections fiscal-year requirement in this section or States. This requirement has so far contemplated by the governing statute. other methods acceptable to the resulted in only U.S. flag PVOs Accordingly, while some flexibility in Commission to determine the amount of requesting approval as a self-insurers. timing may be allowed, affected parties coverage required. Evidence of adequate Yet one small U.S. flag operator, will be expected immediately to begin financial responsibility for the purposes American West, fully supports the the transition with adequate safeguards of this subpart may be established by changes. Most U.S. flag PVOs do not in place to protect passengers. The one or a combination (including § 540.6 utilize the self-insurance option. Commission’s staff will be available to Surety Bonds) of the following methods: Instead, they provide evidence of discuss means of doing so. * * * * * financial responsibility with a bond or The rule contains no additional escrow agreement. Some of these U.S. information collection or recordkeeping (c) Filing with the Commission a flag PVOs compete with Cruise West requirements and need not be submitted guaranty on Form FMC–133A, by a and Glacier Bay, who argue that the to OMB for approval under the Protection and Indemnity Association costs of a bond or escrow agreement are Paperwork Reduction Act, 44 U.S.C. with established assets, reserves and competitively disadvantageous. 3501 et seq. reinsurance acceptable to the However, finalizing the rule as proposed The Chairman has certified, pursuant Commission, for indemnification of would put all of these operators on to 5 U.S.C. 605, that the rule will not passengers in the event of equal footing in this regard. have a significant impact on a nonperformance of water transportation. The Commission is sensitive to the substantial number of small entities. The requirements of Form FMC–133A, impact of an abrupt change to its rules. however, may be amended by the For this reason, at its meeting of January List of Subjects in 46 CFR Part 540 Commission in a particular case for 30, 2002, the Commission directed its Insurance, Maritime carriers, good cause. staff to begin discussions with affected Penalties, Reporting and record keeping * * * * * PVOs about alternative means of requirements, Surety bonds, coverage. All affected PVOs were Transportation. 3. Amend Form FMC–131, part II, as apprised of the Commission’s intentions Therefore, pursuant to 5 U.S.C. 553; follows: during the first week of February 2002. section 3 Pub. L. 89–777, 80 Stat. 1356– a. Revise Item 10; Currently, the introductory paragraph to 1358 (46 U.S.C. app. 817e); and section b. Remove Item 15. 46 CFR 540.5 provides: 17(a) of the Shipping Act of 1984, as The revision reads as follows: Except as provided in § 540.9(j), the amended (46 U.S.C. app. 1716(a), and amount of coverage required under this for the reasons stated above, the Federal Part II—Performance section and § 540.6(b) shall be in an amount Maritime Commission amends 46 CFR * * * * * determined by the Commission to be no less part 540 as follows: than 110 percent of the unearned passenger 10. Items 11–14 are optional methods; revenue of the applicant on the date within PART 540—PASSENGER VESSEL answer only the one item which is the two fiscal years immediately prior to the FINANCIAL RESPONSIBILITY applicable to this application. Check the filing of the application which reflects the appropriate box below: greatest amount of unearned passenger 1. The authority citation to part 540 revenue, unless the applicant qualifies for b Insurance (item 11). consideration under § 540.5(e). The continues to read: b Escrow (item 12). Commission, for good cause shown, may Authority: 5 U.S.C. 552, 553; secs. 2 and b Surety bond (item 13). consider a time period other than the 3, Pub. L. 89–777, 80 Stat. 1356–1358 (46 previous two-fiscal-year requirement in this U.S.C. app. 317(e, 817d); sec. 17(a) of the b Guaranty (item 14). section or other methods acceptable to the Shipping Act of 1984 (46 U.S.C. app. * * * * * Commission to determine the amount of 1716(a)). coverage required. * * * (Emphasis added) 15. [Removed] 2. Section 540.5 is amended as By the Commission. Thus, Commission rules already follows: provide for case-by-case consideration a. Revise the heading and Bryant L. VanBrakle, of differing circumstances. The introductory text; Secretary. Commission will give consideration to b. Revise paragraph (c); [FR Doc. 02–16756 Filed 7–3–02; 8:45 am] special circumstances caused by c. Remove paragraphs (d) and (e); BILLING CODE 6730–01–P
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FEDERAL COMMUNICATIONS Authority: 47 U.S.C. 154, 303, 334 and 336. end of a contract, to warrant an additional interim evaluation. The final COMMISSION § 73.606 [Amended] evaluation will include this period of 47 CFR Part 73 2. Section 73.606(b), the Table of contract performance. Television Allotments under South [DA 02–1478, MB Docket No. 02–65, RM– Carolina, is amended by removing B. Regulatory Flexibility Act 10370] Georgetown, TV channel *41–. This final rule does not constitute a Digital Television Broadcast Service; § 73.622 [Amended] significant revision within the meaning Georgetown, SC of FAR 1.501 and Public Law 98–577, 3. Section 73.622(b), the Table of and publication for public comment is AGENCY: Federal Communications Digital Television Allotments under not required. However, NASA will Commission. South Carolina, is amended by adding consider comments from small entities Georgetown, DTV channel *38. ACTION: Final rule. concerning the affected NFS Part 1842 Federal Communications Commission. in accordance with 5 U.S.C. 610. SUMMARY: The Commission, at the Barbara A. Kreisman, C. Paperwork Reduction Act request of Community Television, Inc., Chief, Video Division, Media Bureau. an applicant for a new station to operate [FR Doc. 02–16871 Filed 7–3–02; 8:45 am] The Paperwork Reduction Act does on channel *41 at Georgetown, South BILLING CODE 6712–01–P not apply because the changes do not Carolina, substitutes DTV channel *38 impose recordkeeping or information for channel *41– at Georgetown. See 67 collection requirements which require FR 15769, April 3, 2002. DTV channel the approval of the Office of NATIONAL AERONAUTICS AND *38 can be allotted to Georgetown, Management and Budget under 44 SPACE ADMINISTRATION South Carolina, in compliance with the U.S.C. 3501, et seq. principle community coverage 48 CFR Part 1842 requirements of Section 73.625(a) at List of Subjects in 48 CFR Part 1842 reference coordinates 33–25–58 N. and RIN 2700–AC33 Government procurement. 79–16–16 W. with a power of 500, HAAT of 144 meters and with a DTV Contractor Performance Information Tom Luedtke, service population of 220 thousand. Assistant Administrator for Procurement. AGENCY: National Aeronautics and With is action, this proceeding is Space Administration. Accordingly, 48 CFR part 1842 is terminated. ACTION: Final Rule. amended as follows: DATES: Effective August 15, 2002. 1. The authority citation for 48 CFR FOR FURTHER INFORMATION CONTACT: Pam SUMMARY: This final rule amends the part 1842 continues to read as follows: NASA FAR Supplement (NFS) by Blumenthal, Media Bureau, (202) 418– Authority: 42 U.S.C. 2473(c)(1). 1600. deleting the requirement for interim performance evaluations on contracts PART 1842—CONTRACT SUPPLEMENTARY INFORMATION: This is a whose anniversary of award coincides ADMINISTRATION AND AUDIT synopsis of the Commission’s Report with or occurs within three months of SERVICES and Order, MB Docket No. 02–65, the end of the contract period of adopted June 24, 2002, and released July performance. This action eliminates 2. Revise section 1842.1502 to read as 1, 2002. The full text of this document redundancy in performance evaluations. follows: is available for public inspection and EFFECTIVE DATE: July 5, 2002. copying during regular business hours 1842.1502 Policy. FOR FURTHER INFORMATION CONTACT: in the FCC Reference Information (a) Within 60 days of every Center, Portals II, 445 12th Street, SW., Yolande Harden, NASA, Office of Procurement, Contract Management anniversary of the award of a contract Room CY–A257, Washington, DC. This having a term exceeding one year, document may also be purchased from Division (Code HK); (202) 358-1279; e-mail: [email protected]. contracting officers must conduct the Commission’s duplicating interim evaluations of performance on SUPPLEMENTARY INFORMATION: contractor, Qualex International, Portals contracts subject to FAR Subpart 42.15 II, 445 12th Street, SW., CY–B402, A. Background and this subpart. Interim evaluations are Washington, DC 20554, telephone 202– not required on contracts whose award This change eliminates redundancy in 863–2893, facsimile 202–863–2898, or anniversary is within 3 months of the performance evaluations on contracts via e-mail [email protected]. end of the contract period of where the length of time between the performance. The final evaluation will List of Subjects in 47 CFR Part 73 last interim evaluation and the final include an evaluation of the period evaluation is relatively short. When the Digital television broadcasting, between the last interim evaluation and award anniversary is within 3 months of Television. the end of the contract period of the end of the contract period of Part 73 of Title 47 of the Code of performance. Interim performance performance, the requirement to Federal Regulations is amended as evaluations are optional for SBIR/STTR conduct both an interim and final follows: Phase II contracts. A final evaluation evaluation creates an added burden on summarizing all performance must be the evaluators as well as the contractor. PART 73—[AMENDED] conducted on all contracts. Typically, there is little or no change in 1. The authority citation for part 73 contractor performance during such a [FR Doc. 02–16881 Filed 7–3–02; 8:45 am] continues to read as follows: short span of time, particularly at the BILLING CODE 7510–01–P
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DEPARTMENT OF COMMERCE Background where darkblotched rockfish are found. The Pacific Coast Groundfish FMP This leads to an increased catch of National Oceanic and Atmospheric and its implementing regulations at 50 darkblotched rockfish when Dover sole Administration CFR part 660, subpart G, regulate fishing and petrale sole are targeted during this for over 80 species of groundfish off the time. In order to allow the darkblotched 50 CFR Parts 300, 600 and 660 coasts of Washington, Oregon, and rockfish stock to rebuild, inseason California. Annual groundfish adjustments for target species that co- [Docket No. 011231309–2090–03; I.D. specifications and management occur with darkblotched rockfish are necessary to minimize both the catch of 062702C] measures are initially developed by the darkblotched rockfish. Pacific Fishery Management Council Fisheries off West Coast States and in Management measures in 2002, which the Western Pacific; Pacific Coast (Pacific Council), and are implemented were intended to keep the darkblotched Groundfish Fishery; Annual by NMFS. The specifications and rockfish catch within its OY, include Specifications and Management management measures for the current small cumulative trip limits of Measures; Trip Limit Adjustments and fishing year (January 1–December 31, darkblotched rockfish that Closures 2002) were initially published in the accommodate incidental catch but Federal Register as an emergency rule discourage targeting them. In addition, AGENCY: National Marine Fisheries for January 1–February 28, 2002 (67 FR the 2002 management measures Service (NMFS), National Oceanic and 1540, January 11, 2002), and as a constrain northern DTS (Dover sole, Atmospheric Administration (NOAA), proposed rule for all of 2002 (67 FR thornyhead, sablefish) trawl fisheries Commerce. 1555, January 11, 2002), then finalized during the November–December period effective March 1, 2002 (67 FR 10490, to reduce the incidental catch of ACTION: Inseason trip limit adjustments March 7, 2002). The final rule was darkblotched rockfish. The management and closures; request for comments. subsequently amended at 67 FR 15338, measures also constrain flatfish fisheries April 1, 2002, at 67 FR 18117, April 15, limits during the summer months when SUMMARY: NMFS announces changes in 2002, at 67 FR 30604, May 7, 2002, and participation in the fishery is greatest the following trip limits for the Pacific at 67 FR 40870, June 14, 2002. and darkblotched rockfish are most Coast groundfish fisheries: limited entry The following changes to current likely to be encountered. Lower groundfish trawl gear fisheries north of groundfish management measures were sablefish and Dover sole OYs are also 40°10′ N. lat. and limited entry fixed recommended by the Pacific Council, in expected to reduce the incidental take of gear, open access, and recreational consultation with Pacific Coast Treaty darkblotched rockfish. On May 1, 2002, fisheries south of 40°10′ N. lat. These Tribes and the States of Washington, further action was taken by NMFS to actions, which are authorized by the Oregon, and California, at its June 18– reduce minor slope rockfish trip limits Pacific Coast Groundfish Fishery 21, 2002, meeting in Foster City, CA. between 40°10′ N. lat. and 36° N. lat. for Management Plan (FMP), are intended Pacific Coast groundfish landings will both the trawl and fixed gear limited to prevent the fisheries from exceeding be monitored throughout the year, and entry fleets. This action was necessary optimum yield (OY) and to protect the further adjustments will be made as as it reduced the catch of darkblotched overfished species of darkblotched and necessary to allow achievement of or rockfish while landings data were bocaccio rockfish. avoid exceeding the 2002 OYs and verified to determine if darkblotched DATES: Changes to management allocations. rockfish were landed south of 40o10’ N. measures are effective 0001 hours (local Management Measures North of 40°10′ lat during 2001. time) July 1, 2002, through the effective N. lat. For the 2002 specifications and dates of the 2003 specifications and management measures, NMFS management measures for the Pacific Darkblotched rockfish, an overfished introduced a new bycatch model for Coast groundfish fishery, unless species, are typically encountered along estimating rates that certain overfished modified, superseded, or rescinded, by the central Pacific Coast (Oregon and species, including darkblotched a subsequent rule which will be northern California)and occur at depths rockfish, co-occur with healthier stocks published in the Federal Register. between 180 m and 360 m along the that fishers specifically target. For the Comments on this rule will be accepted continental slope. Both adult and purpose of the bycatch model,‘‘bycatch’’ through July 22, 2002 juvenile darkblotched rockfish are is the term used to describe a species associated with mud and rock habitats. other than the target species, regardless ADDRESSES: Submit comments to D. Adults move to deeper water as they of whether or not it was retained Robert Lohn, Administrator, Northwest increase in size and age; they are (landed, sold, or otherwise used) or Region, NMFS, 7600 Sand Point Way typically observed resting on mud, near discarded. Co-occurrence rates for NE, Seattle, WA 98115–0070; or Rod cobble and boulders and do not often darkblotched rockfish (the proportion of McInnis, Acting Administrator, rise above the ocean floor. darkblotched rockfish in relation to the Southwest Region, NMFS, 501 West Darkblotched rockfish are harvested target species) used in the bycatch Ocean Blvd, Suite 4200, Long Beach, CA by several sectors of the groundfish model were in part based on landings 90802–4213. This Federal Register fishery and have experienced higher data reported on fish tickets. Upon re- document is available on the than expected landing during the first evaluation of fish ticket data it was Government Printing Office’s website at: four months of 2002. Due to its determined that the darkblotched http://www.access.gpo.gov/suldocs/ overfished status, darkblotched rockfish rockfish landings from waters between aces/aces140.html. is not managed as a targeted species in 40°10′ N. lat. and 36° N. lat. (Monterey FOR FURTHER INFORMATION CONTACT: the 2002 Pacific Coast groundfish management area) were not Carrie Nordeen or Becky Renko fishery. However, it is known to co- incorporated into the initial bycatch (Northwest Region, NMFS) 206–526– occur with several groundfish species model. As a result, catch projections for 6140. that are directly targeted by the fishery. darkblotched rockfish based on the For example, Dover sole and petrale sole initial model were lower than what may SUPPLEMENTARY INFORMATION: seasonally occupy areas and depths have actually occurred in the target
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fisheries in the Monterey area. Because bottom trawl fisheries to continue including area restrictions, must be of this new information, significant through August. considered in a two-meeting process landings of darkblotched rockfish were before implementation. New types of Limited Entry Trawl and Limited Entry projected south of 40°10′ N. lat. during management measures are usually Fixed Gear Limits for Pacific Ocean the first six months of 2002. Therefore, introduced in the two-meeting process Perch (POP) North of 40°10′ N. lat. NMFS promulgated measures to reduce used to develop annual specifications darkblotched rockfish landings on May Much like darkblotched rockfish, POP and management measures. 1, 2002, and this approach reduced are found in waters along the edge of the When reviewing 2002 landings data darkblotched rockfish landings south of continental shelf, as well as in the and historical survey data for 40°10′ N. lat. NMFS and the Pacific waters of the upper continental slope. darkblotched rockfish, the Pacific Council manage the coastwide Because darkblotched rockfish and POP Council found that deepwater fisheries groundfish fisheries to minimize are both found along the shelf and where the incidental take of opportunities for incidental associated with the ocean floor, darkblotched rockfish occurs tend to be darkblotched rockfish catch so as to not darkblotched rockfish are taken as prosecuted inshore of the 200 fathom exceed the darkblotched rockfish OY, bycatch in the slope rockfish fishery depth contour. DTS species tend to be which is set at a level that is intended along with POP. available to vessels operating offshore of to rebuild the stock. In an effort to discourage targeting on 200 fathoms, particularly during the fall At the June Pacific Council meeting, POP but to allow for the incidental and winter months. Because of the the best available science indicated that catch of POP in other slope fisheries, the FMP’s process requirements for landings of darkblotched rockfish in Pacific Council recommended reducing introducing new management measures, 2002 were greater than projected. trip limits for POP. Beginning July 1, the the Pacific Council understood that they Coastwide commercial landings through limited entry trawl and limited entry could not craft new depth-based fishery June 8, 2002 were between 73 mt and 98 fixed gear limits for POP north of 40°10′ restrictions through the usual mt which represents 56 percent to 75 N. lat. will be reduced from 4,000 lb specifications and management percent of the darkblotched rockfish (1,814 kg) per month to 4,000 lb (1,814 measures for a July 1 implementation. landed catch OY (not including catch in kg) per 2 months. This reduction in POP Using the two-meeting process, depth- the at-sea whiting sector). As of June 8, trip limits is part of the Pacific Council’s based restrictions allowing the harvest 2002, approximately 30 mt were landed efforts to reduce the harvest of of healthy stocks offshore of areas where south of 40°10′ N. lat. Due to the deepwater species so as to decrease the darkblotched rockfish typically occur magnitude of catches earlier in the year likelihood that darkblotched rockfish would likely not be in place until combined with projected darkblotched will be taken in fisheries targeting other October 1, 2002, following the June and rockfish bycatch from the area north of deepwater species. September Pacific Council meetings. To ° ′ 40 10 N. lat., and landings and Limited Entry Bottom Trawl Closure expedite fisheries access to deepwater estimated discards from the area south North of 40°10′ N. lat. stocks, the Pacific Council has requested of 40°10′ N. lat., the projected year-end NOAA consider depth-based restrictions catch of darkblotched rockfish, under Implementing a small footrope beginning September 1, 2002, via an the current trip limit schedule, would requirement in the limited entry trawl emergency rule. If NOAA determines exceed the rebuilding OY of 168 mt by fishery and reducing the cumulative that an emergency rule is necessary and approximately 35–40 mt. limit of POP, as described above, is appropriate, NMFS will announce the In order to prevent the commercial expected to aid in reducing the action in the Federal Register. interception of darkblotched rockfish. fleet from exceeding the darkblotched ° ′ rockfish OY, the Pacific Council However, these measures alone may not Management Measures South of 40 10 recommended the following be adequate to keep the 2002 N. lat. management measures: a small footrope darkblotched rockfish catch within its Another overfished rockfish species, requirement, changes to trip limits, and 168 mt OY, as the projected catch of with higher than projected landings for area closures. These management darkblotched rockfish is still expected the first half of 2002, is bocaccio measures are designed to limit the to be approximately 160 mt by the end rockfish. Bocaccio are widespread darkblotched rockfish catch to 160 mt, of August. As a further precautionary throughout central and southern which is within the 2002 darkblotched measure to keep darkblotched rockfish California. Larvae can be found far from rockfish OY of 168 mt. within the 2002 OY and allow shore in the upper 10 m of the water rebuilding of the stock, beginning column, juveniles often occur in Limited Entry Trawl Small Footrope ° ′ September 1, it will be prohibited to shallow, nearshore waters, and adults Requirement North of 40 10 N. lat. prosecute any groundfish fishery north move into deeper water (depths ranging Due to concern about the incidental of 40o10’ N. lat. with bottom trawl gear from 50 - 300 m) along the continental catch of darkblotched rockfish in the (small or large footrope). shelf as they age. Because bocaccio are limited entry trawl fishery, the Pacific The Pacific Council held a prolonged found in a broad range of depths and Council recommended eliminating the debate weighing the need to close habitats throughout their life cycle, large footrope bottom trawl option for fisheries in which darkblotched rockfish bocaccio are frequently intercepted in the remainder of the year. Beginning are taken incidentally versus the Pacific Coast groundfish fisheries. July 1, all vessels using bottom trawl economic difficulties that would be felt In order to allow the bocaccio stock to gear must use a small footrope bottom in fishing communities that depend on rebuild, precautionary management trawl in order to reduce the incidental groundfish income. In particular, the measures have been in place for harvest of darkblotched rockfish. This Pacific Council and the public were bocaccio and those species that co-occur small footrope bottom trawl requirement frustrated that the current management with bocaccio. In 2002, bottom trawl is expected to discourage fishing effort measure process does not allow opportunities for shelf rockfish have in the rocky habitat which darkblotched fisheries for healthy stocks to occur in been extremely limited, no landings of rockfish are believed to inhabit, thereby, areas where darkblotched rockfish are bocaccio rockfish are allowed with large reducing the interception of not commonly found. Under the FMP, footrope trawl gear, and small amounts darkblotched rockfish, while allowing new groundfish management measures, of bocaccio, an unavoidable bycatch,
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taken with small footrope or midwater Sablefish Minimum Size Requirements land rockfish and lingcod with trawl gear were allowed to be landed in and Cumulative Limits for All recreational gear outside of 20 fathom fisheries for healthy stocks. The Groundfish Fisheries South of 40°10′ N. (36.9 m) south of 40°10′ N. lat. In chilipepper rockfish OY continues to be lat. keeping with these management reduced to limit the incidental take of In an effort to reduce fishing effort on measures, the state of California will bocaccio. Additionally, California hook- the continental shelf where bocaccio are implement similar regulations effective and-line commercial fisheries have been found and move vessels into deeper by July 1, 2002. closed during the same periods and in waters off the slope, the Pacific Council Limited Entry Trawl, Limited Entry the same areas as the recreational recommended reinstating the minimum Fixed Gear, and Open Access Limits for fisheries and California maintained a 22 inch (56 cm) size requirement for Minor Slope Rockfish and Splitnose rockfish bag limit of 10 fish, no more sablefish taken with nontrawl gear and Rockfish Between 40°10′ N. Lat. and 36° than 2 of which may be bocaccio a reduced trip limit for sablefish under N. lat. rockfish. the 22 inch (56 cm) requirement taken The best available information As of June 8, 2002, the commercial with trawl gear. Larger sablefish tend to indicates that landings of minor slope landings of bocaccio rockfish were 21 be found at greater depths, thus, rockfish by limited entry and open mt, which represents 57 percent of the prohibiting retention of small sablefish access fisheries has been approximately commercial harvest guideline. Although in the nontrawl fisheries and reducing 17 percent of the harvest guideline. The the commercial harvest is slightly the trip limit in the limited entry trawl minor slope rockfish fisheries will higher than projected preseason, the fishery is expected to force vessels into continue at their currently scheduled estimated landings of bocaccio in the deeper water when targeting sablefish. trip limits for the July–August recreational fishery is of much greater In the trawl fishery south of 40o10’N. cumulative period to allow access to concern. Recreational data estimates for lat., the currently scheduled cumulative healthy minor slope rockfish stocks the January - April period indicated that sablefish limit of 3,000 lb (1,361 kg) per during summer months. However, in 2 months will remain in effect, with a approximately 60 mt of bocaccio were keeping with other management per trip restriction of no more than 500 taken. This estimated catch exceeds the measures to reduce the catch of lb (227 kg) of sablefish smaller than 22 2002 recreational harvest guideline of bocaccio and to ensure that trip limit inches (56 cm). To encourage the non- 56 mt. By the end of June, the projected reductions are distributed among the trawl fisheries to also operate in deeper catch in the commercial and groundfish fleet, the Pacific Council waters, currently scheduled limits will recreational fisheries combined may recommended a reduction in trip limits apply, but retention of sablefish smaller for minor slope rockfish starting exceed the rebuilding OY of 100 mt and than 22 inches (56 cm) will be could approach or exceed the ABC of September 1, 2002. Therefore, minor prohibited. slope rockfish limits between 40°10′ N. 122 mt. In order to allow the bocaccio lat. and 36° N. lat. will be as follows: the stock to rebuild and prevent overfishing Limited Entry Fixed Gear, All Open limited entry trawl limit will be reduced from occurring, the Pacific Council Access Gears, and Recreational Limits for Groundfish Fisheries (With the from 50,000 lb (22,680 kg) per 2 months recommended that NMFS take the to 1,800 lb (816 kg) per 2 months; the following actions to limit the harvest of Exception of Primary Sablefish and Slope Rockfish) South 40°10′ N. lat. limited entry fixed gear limit will be bocaccio and co-occurring species. reduced from 25,000 lb (11,340 kg) per Limited Entry Trawl and Exempted Because of the projected catch of 2 months to 1,800 lb (816 kg) per 2 bocaccio combined with bocaccio’s Open Access Trawl Limits for months; and the open access limit will depth distribution and widespread co- Groundfish (With the Exception of DTS, be reduced from 10,000 lb (4,536 kg) per occurrence with other groundfish Minor Slope Rockfish, and Rex, Petrale, 2 months to 1,800 lb (816 kg) per 2 species, the catch of bocaccio by limited and English Sole Landed with DTS) months. entry fixed gear and open access South of 40°10′ N. lat. 2002 landings of splitnose rockfish fisheries is of concern. Therefore, the during the first six months of 2002 have Beginning July 1, the Pacific Council Pacific Council recommended that, been approximately 29 mt or 7 percent recommended that NMFS prohibit beginning July 1, outside of 20 fathoms of the landed catch OY. Because the limited entry vessels from using trawl (36.9 m) it will prohibited to take and Pacific Council is concerned about the gear be prohibited south of 40°10′ N. lat. retain, possess, or land all groundfish economic impacts associated with the for all groundfish species except the species (with the exception of sablefish July 2002 inseason management and slope rockfish) with fixed gear measures, attempts to allow harvesting deepwater DTS complex and minor ° ′ slope rockfish. south of 40 10 N. lat. In addition, of healthy groundfish stocks are allowed beginning July 1, inside of 20 fm (36.9 when possible. Beginning September 1, In keeping with these measures, the m) it will be prohibited to take and retention of splitnose rockfish between amount of groundfish retention by retain, possess, or land minor shelf 40°10′ N. lat. and 36° N. lat. will be vessels using exempted gear is also of rockfish, bocaccio, and chilipepper restricted to 1,800 lb (816 kg) per 2 concern. Typically only a few metric rockfish south of 40°10′ N. lat. These months for limited entry trawl, limited tons of bocaccio are taken with inshore closures for shelf rockfish entry fixed gear, and open access. exempted gear. However, since the fleet species are needed to further reduce is likely to harvest the bocaccio OY by bocaccio catch. Limited Entry Trawl and Limited Entry the end of June, the Pacific Council Because the estimated amount of Fixed Gear Limits for Minor Slope recommended that NMFS prohibit the bocaccio catch in the recreational Rockfish and Splitnose Rockfish South ° retention of groundfish in exempted fishery has been so high during the first of 36 N. lat. trawl fisheries. Therefore, beginning few months of 2002, the Pacific Council For reasons described above, July 1, it is prohibited to take and retain, also recommended a closure outside of cumulative limited entry trawl and possess, or land groundfish with 20 fm (36.9 m) in the recreational limited entry fixed gear limits for minor exempted trawl gear south of 40°10′ N. fishery. Therefore, beginning July 1, it is slope and splitnose rockfish are being lat. prohibited to take and retain, possess, or adjusted for September - December.
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Beginning September 1, limited entry overfished species while allowing the inches (56 cm) TL for whole fish, is 15.5 limits for minor slope rockfish south of harvest of healthy groundfish stocks. inches (39 cm). 36° N. lat. will be reduced as follows: These depth restrictions are a new type (ii) The conversion factor established the trawl limit will be reduced from of management measure and need to be by the state where the fish is or will be 50,000 lb (22,680 kg) per 2 months to implemented via emergency rule. landed will be used to convert the 15,000 lb (816 kg) per 2 months and the Because of the required timeline for an processed weight to round weight for fixed gear limit will be reduced from emergency rule, depth restrictions are purposes of applying the trip limit. (The 25,000 lb (11,340 kg) per 2 months to not expected to be implemented before conversion factor currently is 1.6 in 15,000 lb (6,804 kg) per 2 months. September 1, 2002. Washington, Oregon, and California. Beginning September 1, limited entry At the September 9–13, 2002, Pacific However, the state conversion factors limits for splitnose rockfish south of 36° Council meeting in Portland, Oregon, may differ: fisher should contact fishery N. lat. will be reduced as follows: the additional groundfish landing data will enforcement officials in the state where trawl limit will be reduced from 25,000 be available. The projected catch of both the fish will be landed to determine that lb (11,340 kg) per 2 months to 15,000 lb darkblotched rockfish and bocaccio will state’s official conversion factor.) (6,804 kg) per 2 months and the fixed be re-assessed at this time. Based on this * * * * * gear limit will be reduced from 25,000 updated information, groundfish 2. On page 10513, in column 1, in lb (11,340 kg) per 2 months to 15,000 lb management measures for the remainder section IV. under A. General Definitions (6,804 kg) per 2 months. of 2002 will be adjusted accordingly. and Provisions, paragraph (14(b)(iv) is Limited Entry Trawl Limits for Rex Sole, Additionally, the Pacific Council’s revised to read as follows: Petrale, Sole, English Sole, Arrowtooth Groundfish Management Team (GMT) is * * * * * Flounder, and Other Flatfish South of scheduled to meet in early August. If the (iv) More than one type of trawl gear 40°10′ N. lat. GMT projects that the darkblotched on board. The cumulative trip limits in rockfish OY will be reached prior to the Table 3 must not be exceeded. When To allow for retention of incidentally Pacific Council’s September meeting, a fishing in areas where the use of a caught healthy flatfish stocks, the recommendation will be made to NMFS particular type of trawl gear [Example: Pacific Council recommended an that it should restrict the fishery to large footrope gear] is prohibited, a incidental catch allowance of rex sole, eliminate the catch of darkblotched fisher may not have more than one gear petrale sole, English sole, and rockfish. type on board. When fishing in areas arrowtooth flounder, beginning July 1, where trawling is not restricted, a fisher provided these fish are harvested and NMFS Actions may have more than one type of trawl landed with the DTS complex. For the reasons stated here, NMFS gear on board, but the most restrictive Therefore, beginning July 1, limited concurs with the Pacific Council’s trip limit associated with the gear on entry trawl flatfish limits for rex sole, recommendations and hereby board applies for that trip and will petrale sole, English sole, and announces the following changes to the count toward the cumulative trip limit arrowtooth flounder, south of 40°10′ N. 2002 specifications and management for that gear. [Example: If a vessel has lat. will be 1,000 lb (454 kg) per trip if measures (67 FR 10490 March 7, 2002, large footrope gear on board, it cannot landed with DTS species. Flatfish as amended at 67 FR 15338 April 1, land yellowtail rockfish, even if the landings must not exceed landing of 2002, 67 FR 18117 April 15, 2002, 67 FR yellowtail rockfish is caught with a DTS and flatfish other than the four 30604 May 1, 2002, 67 FR 40870 June small footrope trawl. If a vessel has both species cannot be retained as of July 1, 14, 2002) to read as follows: small footrope trawl and midwater trawl 2002. 1. On page 10511, in column 1, in gear on board, the landing is attributed As discussed previously, the Pacific section IV. under A. General Definitions to the most restrictive gear-specific Council recommended that depth and Provisions,, paragraph (d) is revised limit, regardless of which gear type was restrictions be incorporated in the to read as follows: used. Pacific Council’s suite of management options in an effort to minimize the * * * * * * * * * * economic impact of groundfish (d) Sablefish size and weight limit 3. On page 10517, in section IV, under management measures on the Pacific conversions. The following conversions B. Limited Entry Fishery, at the end of Coast fishing industry. Depth apply to both the limited entry and open paragraph (1), Tables 3 and 4 are revised restrictions would help shift fishing access fisheries when size and trip to read as follows: effort to areas and depths where limits are effective for those fisheries. IV. NMFS Actions overfished groundfish species are less For headed and gutted (eviscerated) likely to be encountered. This type of sablefish: B. Limited Entry Fishery management measure should decrease (i) The minimum size limit for headed (1) * * * the interception and landings of sablefish, which corresponds to 22 BILLING CODE 3510–22–S
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* * * * * Fishery, at the end after paragraph (1), IV. NMFS Actions Table 5 is revised to read as follows: 4. On page 10519 in section IV., under C. Trip Limits in the Open Access C. Trip Limits in the Open Access Fishery (1) * * *
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BILLING CODE 3510–22–C
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5. On page 10521, in section IV., and yelloweye rockfish retention is NMFS, (see ADDRESSES) during business under C. Trip Limits in the Open Access prohibited. Recreational fishing for hours. Fishery, paragraph (2)(a) is revised to cowcod is prohibited all year in all The Assistant Administrator for read as follows: areas. Fisheries, NMFS, finds good cause to * * * * * (iii) Bag limits. boat limits, hook waive the requirement to provide prior (i) (a) Trip limits. Beginning July 1, it limits. In times and areas when the notice and opportunity for public is prohibited to take and retain, possess, recreational season for rockfish is open, comment on this action pursuant to 5 or land any groundfish species with there is a 2–hook limit per fishing line, U.S.C. 553(b)(B), because providing exempted trawl gear south of 40°10′ N. and the bag limit is 10 rockfish per day, prior notice and opportunity for lat. The trip limit is 300 lb (136 kg) of of which no more than 2 may be comment would be impracticable. It groundfish per fishing trip north of bocaccio, no more than 1 may be canary would be impracticable because the 40°10′ N. lat. North of 40°10′ N. lat, rockfish, and no more than 1 may be cumulative trip limit period for the limits in Table 5 also apply and are yelloweye rockfish. No more than 2 Pacific Coast groundfish fishery begins counted toward the 300 lb (136 kg) yelloweye rockfish may be retained per July 1, 2002, and affording prior notice groundfish limit. In any landing by a vessel. Cowcod may not be retained. and opportunity for public comment vessel engaged in fishing for spot and Bocaccio, canary rockfish, and would impede the agency’s function of ridgeback prawns, California halibut, or yelloweye rockfish may not be retained, managing fisheries to remain within the sea cucumbers with exempted trawl and no more than 2 shelf rockfish may OY. Delaying implementation of these gear, the amount of groundfish landed be retained, in the area between 40°10′ closures and trip limit reductions past may not exceed the amount of the target N. lat. and Point Conception (34°27′ N. July 1, 2002, may cause the catch of species landed, except that the amount lat.) from May 1 through June 30, or in darkblotched rockfish to exceed its OY of spiny dogfish (Squalas acanthias) the area south of 40°10′ N. lat. from July and may cause the catch of bocaccio landed may exceed the amount of target 1 through October 31. (Note: California rockfish to further exceed its OY and species landed. Spiny dogfish are scorpionfish, are subject to California’s approach or exceed its ABC. Most of the limited by the 300 lb (136 kg) per trip 10 fish bag limit per species, but are not trip limits adjustments in this document overall groundfish limit. The daily trip counted toward the 10 rockfish bag are reductions from the status quo. limits for sablefish north of 40°10′ N. lat. limit.) Multi-day limits are authorized Decreases to trip limits and closures may not be multiplied by the number of by a valid permit issued by California must be implemented in a timely days of the fishing trip. The closures and must not exceed the daily limit manner to protect overfished and listed in table 5 also apply. multiplied by the number of days in the depleted groundfish species and to fishing trip. prevent the harvest of healthy stocks * * * * * from exceeding the OY for 2002. 6. On page 10521, in column 3, in * * * * * Because the Pacific Coast groundfish Section IV., under D. Recreational (ii) Seasons. North of 40°10′ N. lat., fishery is managed by trip limits, most Fishery, paragraph (1)(9)(ii) is revised recreational fishing for lingcod is open of which are based on a 2–month and on page 10522, in columns 1 and from January 1 through December 31. cumulative period (January–February, 2, under D. Recreational Fishery, South of 40°10′ N. lat. and north of March–April, May–June, July–August, paragraph (1)(a)(iii) is revised and Point Conception (34°27′ N. lat.), September–October, November– paragraph (1)(b)(ii) is revised to read as recreational fishing for lingcod is closed December), these actions should be follows: from March 1 through April 30, and implemented by the beginning of the from November 1 through December 31. * * * * * next cumulative trip limit period (July ° ′ This area is also closed to recreational (ii) Seasons. North of 40 10 N. lat., 1, 2002). Delaying implementation of lingcod fishing from May 1 through recreational fishing for rockfish is open these closures and trip limit changes October 31, except that fishing for from January 1 through December 31. would allow fishers to harvest the ° ′ lingcod is permitted inside the 20 fm South of 40 10 N. lat. and north of higher trip limits that were previously ° ′ (36.9 m) depth contour, subject to the Point Conception (34 27 N. lat.), scheduled for the July-August bag limits in paragraph (iii) of this recreational fishing for rockfish is cumulative period. Allowing fishers to section. South of Point Conception (34° closed from March 1 through April 30, continue harvesting these higher trip 27′ N. lat.), recreational fishing for and from November 1 through limits or harvesting in an open fishery lingcod is closed from January 1 through December 31. This area is also closed to after the start of the cumulative trip February 28 and from November 1 recreational rockfish fishing from May 1 limit period may cause the fisheries to through December 31. This area is also through October 31, except that fishing exceed OYs for protected rockfish closed to recreational lingcod fishing for rockfish is permitted inside the 20 species. For these reasons, good cause from May 1 through October 31, except fm (37 m) depth contour, subject to the also exists to waive the 30–day delay in that fishing for lingcod is permitted bag limits in paragraph (iii) of this effectiveness requirement of 5 U.S.C. inside the 20 fm (36.9 m) depth contour, section, except that bocaccio, canary 553 (d)(3). rockfish and yelloweye rockfish subject to the bag limits in paragraph These actions are taken under the retention is prohibited. South of Point (iii) of this section. authority of 50 CFR 300.63(a)(3) and ° ′ Conception (34 27 N. lat.), recreational * * * * * 660.323(b)(1), and are exempt from fishing for rockfish is closed from review under Executive Order 12866. January 1 through February 28 and from Classification November 1 through December 31. This These actions are authorized by the Authority: 16 U.S.C. 773–773k; 1801 et seq. area is also closed to recreational Pacific Coast groundfish FMP and its rockfish fishing from July 1 through implementing regulations, and are based Dated: June 28, 2002. October 31, except that fishing for on the most recent data available. The Dean Swanson, rockfish is permitted inside the 20 fm aggregate data upon which these actions Acting Director, Office of Sustainable (37 m) depth contour, subject to bag are based are available for public Fisheries, National Marine Fisheries Service. limits in paragraph (iii) of this section, inspection at the Office of the [FR Doc. 02–16811 Filed 7–1–02; 10:17 am] except that bocaccio, canary rockfish Administrator, Northwest Region, BILLING CODE 3510–22–S
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Proposed Rules Federal Register Vol. 67, No. 129
Friday, July 5, 2002
This section of the FEDERAL REGISTER Docket Clerk, Office of General Counsel, located in subpart D of 24 CFR part 1000 contains notices to the public of the proposed Room 10276, Department of Housing (§§ 1000.301–1000.340). Generally, the issuance of rules and regulations. The and Urban Development, 451 Seventh amount of funding for a tribe is the sum purpose of these notices is to give interested Street, SW., Washington, DC 20410– of the formula’s Need component and persons an opportunity to participate in the 0500. Communications should refer to rule making prior to the adoption of the final the Formula Current Assisted Stock rules. the above docket number and title. (FCAS) component, subject to a Facsimile (FAX) comments are not minimum funding amount authorized acceptable. A copy of each by § 1000.328. Based on the amount of DEPARTMENT OF HOUSING AND communication submitted will be funding appropriated annually for the URBAN DEVELOPMENT available for public inspection and IHBG Program, HUD calculates the copying between 7:30 a.m. and 5:30 annual grant for each tribe and conveys 24 CFR Part 1000 p.m. weekdays at the above address. this information to Indian tribes. An [Docket No. FR–4676–N–04] FOR FURTHER INFORMATION CONTACT: Ted Indian Housing Plan (IHP) for the tribe Key, Acting Deputy Assistant Secretary is then submitted to HUD. If the IHP is Indian Housing Block Grant Allocation for Native American Programs, Office of found to be in compliance with Public and Indian Housing, Department Formula: Second Notice of Intent To statutory and regulatory requirements, of Housing and Urban Development, Establish a Negotiated Rulemaking the grant is made. In Federal fiscal year Committee; Second Request for Room 4126, 451 Seventh Street, SW., 2001, HUD allocated approximately Nominations; Clarification of Selection Washington, DC 20410–0500; telephone $643.4 million to Indian tribes. Criteria; and Announcement of (202) 401–7914 (this number is not toll- Nominees free). Hearing or speech-impaired Section 1000.306 of the IHBG Program individuals may access this number via regulations provides that the allocation AGENCY: Office of the Assistant TTY by calling the toll-free Federal formula shall be reviewed within five Secretary for Public and Indian Information Relay Service at 1–800– years after issuance. This 5-year period Housing, HUD. 877–8339. does not close until March 2003. ACTION: Second notice of intent to SUPPLEMENTARY INFORMATION: However, the recently enacted Omnibus establish a negotiated rulemaking Indian Advancement Act (Pub. L. 105– I. Background committee; request for comments. 568, approved December 27, 2000) On March 12, 1998 (63 FR 12349), SUMMARY: HUD again announces its (Omnibus Act) makes several statutory HUD published its final rule intent to establish a negotiated changes to the IHBG allocation formula implementing the Native American rulemaking committee for the purpose that HUD has decided to implement Housing Assistance and Self- of negotiating a proposed rule that through rulemaking. Accordingly, HUD Determination Act of 1996 (25 U.S.C. would revise the allocation formula believes this would be an appropriate 4101 et seq.) (NAHASDA). NAHASDA used under the Indian Housing Block time to revisit the IHBG formula and to reorganized the system of Federal Grant (IHBG) Program. HUD first determine whether any changes, in housing assistance to Native Americans published a notice of intent to establish by eliminating several separate HUD addition to those mandated by the a negotiated rulemaking committee, but programs of assistance and replacing Omnibus Act, should be made to 24 due to the events of September 11, 2001, them with a single Indian Housing CFR part 1000, subpart D. HUD was not able to act on this notice Block Grant (IHBG) Program. In addition The Omnibus Act made two statutory within the timeframes originally to simplifying the process of providing changes concerning allocations under intended, and is therefore publishing a housing assistance, NAHASDA provides the IHBG formula. First, section 1003(g) second notice. This notice therefore: Again advises Federal assistance for Indian tribes in a of the Omnibus Act amends section the public of the establishment of the manner that recognizes the right of 302(d)(1) of NAHASDA to address the committee; provides the public with Indian self-determination and tribal self- allocation of funds for operation and information regarding the committee; governance. As required by NAHASDA, modernization of housing units again solicits nominations for selection HUD developed the March 12, 1998 developed under the United States to the committee; explains the final rule with active tribal participation Housing Act of 1937 (42 U.S.C. 1437 et nomination procedures and criteria that and used the procedures of the seq.) (1937 Act) to tribes with an Indian will be used to select members of the Negotiated Rulemaking Act of 1990 (5 housing authority that owns or operates committee; announces the names of U.S.C. 561–570). The March 12, 1998, fewer than 250 units. Further, section final rule created a new 24 CFR part those who successfully completed 1003(k)(3) of the Omnibus Act amends 1000 containing the regulations for the applications under the original notice; section 502(a) of NAHASDA to provide and announces the tentative dates for IHBG Program. Under the IHBG Program, HUD makes that any housing that was subject to a the first meeting of the committee. assistance available to tribes for Indian terminated contract for tenant-based DATES: Comment Due Date: August 5, housing activities. The amount of assistance under the 1937 Act shall be 2002. assistance made available to each Indian treated as a dwelling unit for purposes ADDRESSES: Interested persons are tribe is determined using a formula that of section 302(b)(1) of NAHASDA invited to submit comments regarding was developed as part of the NAHASDA (which establishes the factors for the Committee and its proposed negotiated rulemaking process. A determination of need under the IHBG members to the Office of the Rules regulatory description of the formula is formula).
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II. Negotiated Rulemaking representation of Indian tribes. Listed below are the names of the HUD intends to establish a negotiated NAHASDA acknowledges the nominees with complete applications. rulemaking committee for the purpose government-to-government relationship They represent the first round of of reviewing HUD’s regulations for the that exists between the Federal successful candidates. Under this IHBG formula (24 CFR part 1000, Government and federally-recognized notice, HUD is also announcing that, in subpart D), and negotiating Indian tribes. In furtherance of this the Department’s opinion, the interests recommendations for a possible fundamental principle, membership on represented by successful candidates do not constitute sufficient geographic proposed rule modifying the formula. the committee shall be limited to distribution or diversity. Therefore, the The committee membership will consist elected officers of tribal governments (or Department is soliciting additional of elected officers of tribal governments authorized designees of those tribal applications for a second and final (or authorized designees of those tribal governments). After receiving comments nomination process. HUD will review governments) with a definable stake in that the size of the committee should be all applications received under criteria the outcome of a proposed rule. The increased, HUD has determined that a identical to the original notice, and committee would be established, and total of 24 tribal representatives will again afford those with incomplete or conduct its work, in accordance with fairly represent the wide range of otherwise deficient applications the the procedures of the Negotiated diverse interests needed. Two HUD representatives will represent the opportunity to provide the missing or Rulemaking Act of 1990. incomplete information. HUD will The basic concept of negotiated interests of the Federal Government. notify those nominees by letter. After rulemaking is to have the agency that is HUD will pay travel and per diem costs on an as-needed basis. the deadline has passed for submission considering drafting a rule to bring of missing or incomplete information, together representatives of affected Comments were received in response to the original notice stating that the the Department will select participants interests for face-to-face negotiations. from a consolidated list of both the The give-and-take of the negotiation definition of ‘‘small, medium and large tribe’’ was unclear. The Department original and second-round nominees. process is expected to foster No distinctions will be made between constructive, creative and acceptable determined that it was unnecessary to strictly define these terms in the original original and second-round nominees solutions to difficult problems. The when final selections are made. establishment of the negotiated notice, as most tribes can calculate for themselves where their interests lie First-round nominees whose names rulemaking committee will offer Indian are not listed below may reapply under within these categories. That tribal governments the opportunity to this notice and will be given equal determination remains the case. In have input into any changes determined consideration to that given to other general, the Department will use to be necessary to improve the nominees. No additional opportunities guidelines that consider tribes with distribution of funds under the IHBG to apply for participation on the under 250 affordable housing units in formula. committee will occur. The use of negotiated rulemaking management as small, those with The successful nominees are: Sabrina procedures in this matter is consistent between 250 and 500 units as medium, Jacobs, Bruce LaPointe, Grace Bunner, with the statutory goal of NAHASDA to and those with over 500 units in Glenn Edwards, Russell Sossamon, respect the rights of Indian self- management as large. Robert Carlile, Jefferson Keel, Marvin determination and tribal self- In response to the original notice on Jones, Robert Gauthier, Wayne governance. Negotiated rulemaking also this subject published on July 16, 2001 Ducheneaux, Miles McAllister, Gillard conforms to the consultation (66 FR 37098), HUD received a total of White, Jack Sawyers, Darlene Tooley, requirements of Executive Order 13175, 44 nominations to the committee. Michael Reed, Phil Bush, Dennis Jose, entitled ‘‘Consultation and Approximately one-half of the nominees Judith Marasco, Larry Coyle, Tim King, Coordination with Indian Tribal provided complete applications. The Herb Johns, Dale Jones, Virginia Brings Governments,’’ issued on November 6, Department wrote to all nominees in Yellow, Elena Bassett, David Frey, Don 2000 (the Order was published in the November, 2001, informing those with Kashevaroff, Blake Kazama, Delbert Federal Register on November 9, 2000 complete applications that they would Rexford, Carol Gore, Marty Shuravloff, at 65 FR 67249). Executive Order 13175 be considered for membership on the Myron Naneg. requires that Federal agencies establish committee unless HUD was informed by Section IV of this notice establishes regular and meaningful collaboration them that they were no longer criteria for nominating individuals with with Indian tribal officials in the interested, and requesting those with the requisite experience and expertise, development of Federal policies that incomplete applications to provide the representing a wide range of interests have tribal implications. missing information identified in the (including geographically diverse small, Section 564 of the Negotiated letter within 30 days. Due to mail medium and large tribes) that are Rulemaking Act of 1990 requires that an service delays caused by events beyond willing and able to work within a agency, prior to the establishment of a the control of either the Department or consensus framework, on determining negotiated rulemaking committee, the nominees, replies from some the need to revise the IHBG allocation publish a notice in the Federal Register nominees have taken longer than 60 formula. announcing its intent to establish the days to be received. HUD will be Comments were received that the committee, provide certain information extremely flexible in accepting ‘‘experience’’ criterion was regarding the formation of the information from these nominees. To exclusionary, as it required an applicant committee, and solicit nominations for date, approximately one-half of those to have served as a member of a board selection to the committee. The purpose with missing information have replied of commissioners of a housing authority of this notice is to implement the to the letters. The Department will or housing entity, or as a board member requirements of section 564. continue to accept mail replies of another tribal organization. We wish containing this information as it arrives, to clarify that an employee of a tribe, III. Committee Membership or until the deadline for submission of housing authority or housing entity, or HUD’s goal is to develop a committee the second round of applications, other organization is eligible for whose membership reflects a balanced whichever is later. membership, so long as that person
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meets other requirements and provides organization, or other relevant Unfunded Mandates Reform Act of 1995 evidence that they are authorized to experience; (Pub. L. 104–4, approved March 22, represent the interests of the tribe or • Selection of the nominee will help 1995), FACA is not applicable to tribes which the person purports to to ensure the committee contains an consultations between the Federal represent. The phrase ‘‘or other relevant appropriate balance of representatives government and elected officers of experience’’ has been added to clarify from small, medium and large Indian Indian tribal governments (or their the intent of this criterion. tribal governments; designated employees with authority to HUD invites interested persons and • Selection of the nominee will act on their behalf). organizations to submit nominations for ensure the geographic diversity of the The Office of Management and Budget members of this committee. HUD will committee membership; and (OMB) issued guidelines implementing • review the nominations submitted for The nominee has demonstrated section 204(b). The OMB guidelines committee membership to ensure that ability to analyze and extrapolate interpret the exemption broadly to those selected will reflect the diversity complex data. include State, local, or tribal of tribes in terms of size, location, and V. Final Committee Membership representatives with the authority to act special circumstances. After review of on behalf of the State, local, or tribal all the nominations, HUD will publish After reviewing any comments on this government, regardless of their actual a notice in the Federal Register notice and all nominations for employment status. As the OMB announcing its proposed list of membership, HUD will issue a follow- guidelines provide: committee members, and soliciting up Federal Register notice. That notice will announce HUD’s proposed list of In accordance with the legislative intent, public comment on the proposed the exemption should be read broadly to membership. negotiated rulemaking committee facilitate intergovernmental communications members, and provide the public with HUD does not believe that each on responsibilities or administration. This an opportunity to comment on the potentially affected tribe must have its exemption applies to meetings between proposed membership. HUD will Federal officials and employees and State, own representative. However, HUD announce the final composition of the local or tribal governments acting through must be satisfied that the group as a negotiated rulemaking committee in a their elected officers, officials, employees, whole reflects a proper balance and mix subsequent Federal Register notice. and Washington representatives, at which of interests. Negotiation sessions will be ‘views, information, or advice’ are exchanged open to members of the public, so VI. Tentative Schedule concerning the implementation of individuals and organizations that are intergovernmental responsibilities or At this time, HUD’s tentative plan is administration, including those that arise not members of the committee may to hold the first committee meeting on attend all sessions and communicate explicitly or implicitly under statute, January 14 and 15, 2003, at the Denver regulation, or Executive Order. The scope of informally with members of the Marriott City Center, 1701 California meetings covered by this exemption should committee. Street, Denver, CO 80202. The purpose be construed broadly to include meetings IV. Nominations for Committee of the meeting will be to orient members called for any purpose relating to Membership to the negotiated rulemaking process, to intergovernmental responsibilities or establish a basic set of understandings administration. Such meetings include, but are not limited to, meetings called for the Interested persons and organizations and ground rules (protocols) regarding may nominate persons for committee purpose of seeking consensus, exchanging the process that will be followed in views, information, advice, and/or membership by submitting a written seeking a consensus, and to begin to nomination to HUD at the address listed recommendations; or facilitating any other address the issues. Decisions with interaction relating to intergovernmental in the ADDRESSES section of this notice respect to future meetings will be made responsibilities or administration. (OMB no later than August 5, 2002. at the first meeting and from time to Memorandum 95–20 (September 21, 1995), Nominations for membership on the time thereafter. pp. 6–7, published at 60 FR 50651, 50653 committee must include: Advance notice of committee (September 29, 1995)). 1. The name and address of the meetings will be published in the Additionally, on July 10, 2001 (66 FR nominee and a description of the Federal Register. Meetings of the 37728), the General Services interests such person shall represent; negotiated rulemaking committee will Administration (GSA) updated its 2. Evidence that the nominee is be open to the public without advance regulations governing Federal Advisory authorized to represent a tribal registration. Public attendance may be Committee Management, and in these government or group of tribal limited to the space available. Members regulations, the GSA codified the OMB governments related to the interests the of the public will be provided the guidance issued in 1995. GSA’s person proposes to represent; opportunity to make statements during regulations at 41 CFR 102–3.40 provide 3. A written commitment that the the meeting, to the extent time permits, that FACA does not apply to committees nominee shall actively participate in and file written statements with the composed wholly of full-time or good faith in the development of the committee for its consideration. In the permanent part-time officers or rule under consideration; and event that the date and time of these employees of the Federal Government 4. A written statement indicating how meetings is changed, HUD will advise and elected officers of State, local and the nominee meets the following five the public through Federal Register tribal governments (or their designated selection criteria: notice. employees with authority to act on their • The nominee is an elected tribal behalf), acting in their official VII. Applicability of the Federal officer, or is otherwise authorized by the capacities. The GSA provides that Advisory Committee Act (FACA) tribal government to act on the tribe’s FACA does not apply to these groups behalf during the negotiated rulemaking Comments were received about the with the following qualification: sessions; applicability of FACA. The provisions • However, the purpose of such a committee The nominee has demonstrated of the Federal Advisory Committee Act must be solely to exchange views, housing experience as a member of the (5 U.S.C. App.) do not apply to this information or advice relating to the board of commissioners of a housing negotiated rulemaking committee. In management or implementation of Federal authority or housing entity, or other accordance with section 204(b) of the programs established pursuant to statute, that
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explicitly or inherently share Commission’s contractor, Vistronix, List of Subjects in 47 CFR Part 73 intergovernmental responsibilities or Inc., will receive hand-delivered or Television broadcasting. administration (see guidelines issued by the messenger-delivered paper filings for For the reasons discussed in the Office of Management and Budget (OMB) on the Commission’s Secretary at 236 section 204(b) of the Unfunded Mandates preamble, the Federal Communications Massachusetts Avenue, NE., Suite 110, Reform Act of 1995, 2 U.S.C. 1534(b), OMB Commission proposes to amend 47 CFR Washington, DC 20002. The filing hours Memorandum M–95–20, dated September 21, part 73 as follows: 1995, available from the Committee at this location are 8:00 a.m. to 7:00 p.m. Management Secretariat (MC), General All hand deliveries must be held PART 73—RADIO BROADCAST Services Administration, 1800 F Street, NW., together with rubber bands or fasteners. SERVICES Washington, DC 20405–0002). Any envelopes must be disposed of 1. The authority citation for part 73 That FACA may not apply to this before entering the building. continues to read as follows: negotiated rulemaking committee does Commercial overnight mail (other than not necessarily mean that HUD, or HUD U.S. Postal Service Express Mail and Authority: 47 U.S.C. 154, 303, 334 and 336. Priority Mail) must be sent to 9300 East and the committee members, would § 73.606 [Amended] decide not to apply FACA voluntarily. Hampton Drive, Capitol Heights, MD Additional comments on this issue are 20743. U.S. Postal Service first-class 2. Section 73.606(b), the Table of welcome. mail, Express Mail, and Priority Mail Television Allotments under should be addressed to 445 12th Street Mississippi, is amended by removing Dated: June 27, 2002. SW., Washington, DC 20554. All filings Channel 56+ and adding Channel 46- at Michael Liu, must be addressed to the Commission’s Wiggins. Assistant Secretary for Public and Indian Secretary, Office of the Secretary, Federal Communications Commission. Housing. Federal Communications Commission, Barbara A. Kreisman, [FR Doc. 02–16766 Filed 7–3–02; 8:45 am] Washington, DC 20554. In addition to Chief, Video Division, Media Bureau. BILLING CODE 4210–33–P filing comments with the FCC, [FR Doc. 02–16867 Filed 7–3–02; 8:45 am] interested parties should serve the petitioner, or its counsel or consultant, BILLING CODE 6712–01–P FEDERAL COMMUNICATIONS as follows: David D. Oxenford, Shaw COMMISSION Pittman LLP, 2300 N Street NW., FEDERAL COMMUNICATIONS Washington, DC 20037–1128 (Counsel COMMISSION 47 CFR Part 73 for KB Prime Media LLC). [DA 02–1480, MB Docket No. 02–02–152, FOR FURTHER INFORMATION CONTACT: Pam 47 CFR Part 73 RM–10457] Blumenthal, Media Bureau, (202) 418– [DA 02–1479, MB Docket No. 02–151, RM– 1600. 10453] Television Broadcast Service; Wiggins, SUPPLEMENTARY INFORMATION: MS This is a Digital Television Broadcast Service; synopsis of the Commission’s Notice of Yuma, AZ AGENCY: Federal Communications Proposed Rule Making, MB Docket No. Commission. 02–152, adopted June 24, 2002, and AGENCY: Federal Communications ACTION: Proposed rule. released July 1, 2002. The full text of Commission. this document is available for public ACTION: Proposed rule. SUMMARY: The Commission requests inspection and copying during regular comments on a petition filed by KB business hours in the FCC Reference SUMMARY: The Commission requests Prime Media LLC, an applicant for a Information Center, Portals II, 445 12th comments on a petition filed by Arizona construction permit for a new television Street SW., Room CY–A257, Western College proposing the station to operate on channel 56 at Washington, DC, 20554. This document allotment of DTV channel 24 at Yuma, Wiggins, Mississippi, proposing the may also be purchased from the Arizona, as the community’s first local substitution of channel 46- for channel Commission’s duplicating contractor, noncommercial DTV allotment. DTV 56 at Wiggins. TV Channel 46- can be Qualex International, Portals II, 445 Channel *24 can be allotted to Yuma at allotted to at reference coordinates 30– 12th Street SW., Room CY–B402, reference coordinates 32–56–57 N. and 32–32 N. and 89–10–40 W. Washington, DC, 20554, telephone 202– 114–36–46 W. with a power of 540, a DATES: Comments must be filed on or 863–2893, facsimile 202–863–2898, or height above average terrain HAAT of before August 22, 2002, and reply via e-mail [email protected]. 490 meters. Since the community of comments on or before September 6, Provisions of the Regulatory Yuma is located within 275 kilometers 2002. Flexibility Act of 1980 do not apply to of the U.S.-Mexican border, concurrence from the Mexican government must be ADDRESSES: The Commission permits this proceeding. obtained for this allotment. the electronic filing of all pleadings and Members of the public should note comments in proceeding involving that from the time a Notice of Proposed DATES: Comments must be filed on or petitions for rule making (except in Rule Making is issued until the matter before August 22, 2002, and reply broadcast allotment proceedings). See is no longer subject to Commission comments on or before September 6, Electronic Filing of Documents in Rule consideration or court review, all ex 2002. Making Proceedings, GC Docket No. 97– parte contacts are prohibited in ADDRESSES: The Commission permits 113 (rel. April 6, 1998). Filings by paper Commission proceedings, such as this the electronic filing of all pleadings and can be sent by hand or messenger one, which involve channel allotments. comments in proceeding involving delivery, by commercial overnight See 47 CFR 1.1204(b) for rules petitions for rule making (except in courier, or by first-class or overnight governing permissible ex parte contacts. broadcast allotment proceedings). See U.S. Postal Service mail (although we For information regarding proper Electronic Filing of Documents in Rule continue to experience delays in filing procedures for comments, see 47 Making Proceedings, GC Docket No. 97– receiving U.S. Postal Service mail). The CFR 1.415 and 1.420. 113 (rel. April 6, 1998). Filings by paper
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can be sent by hand or messenger one, which involve channel allotments. ADDRESSES: The Commission permits delivery, by commercial overnight See 47 CFR 1.1204(b) for rules the electronic filing of all pleadings and courier, or by first-class or overnight governing permissible ex parte contacts. comments in proceeding involving U.S. Postal Service mail (although we For information regarding proper petitions for rule making (except in continue to experience delays in filing procedures for comments, see 47 broadcast allotment proceedings). See receiving U.S. Postal Service mail). The CFR 1.415 and 1.420. Electronic Filing of Documents in Rule Commission’s contractor, Vistronix, List of Subjects in 47 CFR Part 73 Making Proceedings, GC Docket No. 97– Inc., will receive hand-delivered or 113 (rel. April 6, 1998). Filings by paper messenger-delivered paper filings for Digital television broadcasting, can be sent by hand or messenger Television. the Commission’s Secretary at 236 delivery, by commercial overnight Massachusetts Avenue NE., Suite 110, For the reasons discussed in the courier, or by first-class or overnight Washington, DC 20002. The filing hours preamble, the Federal Communications U.S. Postal Service mail (although we at this location are 8:00 a.m. to 7:00 p.m. Commission proposes to amend 47 CFR continue to experience delays in All hand deliveries must be held part 73 as follows: receiving U.S. Postal Service mail). The together with rubber bands or fasteners. PART 73—RADIO BROADCAST Commission’s contractor, Vistronix, Any envelopes must be disposed of Inc., will receive hand-delivered or before entering the building. SERVICES messenger-delivered paper filings for Commercial overnight mail (other than 1. The authority citation for part 73 the Commission’s Secretary at 236 U.S. Postal Service Express Mail and continues to read as follows: Massachusetts Avenue NE., Suite 110, Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD Authority: 47 U.S.C. 154, 303, 334 and 336. Washington, DC 20002. The filing hours at this location are 8:00 a.m. to 7:00 p.m. 20743. U.S. Postal Service first-class § 73.622 [Amended] mail, Express Mail, and Priority Mail All hand deliveries must be held 2. Section 73.622(b), the Table of together with rubber bands or fasteners. should be addressed to 445 12th Street Digital Television Allotments under SW., Washington, DC 20554. All filings Any envelopes must be disposed of Arizona is amended by adding DTV before entering the building. must be addressed to the Commission’s channel *24 at Yuma. Secretary, Office of the Secretary, Commercial overnight mail (other than Federal Communications Commission, Federal Communications Commission. U.S. Postal Service Express Mail and Washington, DC 20554. In addition to Barbara A. Kreisman, Priority Mail) must be sent to 9300 East filing comments with the FCC, Chief, Video Division, Media Bureau. Hampton Drive, Capitol Heights, MD interested parties should serve the [FR Doc. 02–16868 Filed 7–3–02; 8:45 am] 20743. U.S. Postal Service first-class petitioner, or its counsel or consultant, BILLING CODE 6712–01–P mail, Express Mail, and Priority Mail as follows: William K. Keane, Arter & should be addressed to 445 12th Street, Hadden LLP, 1801 K Street, NW., Third SW., Washington, DC 20554. All filings Floor L Street, Washington, DC 20006– FEDERAL COMMUNICATIONS must be addressed to the Commission’s 1301 (Counsel for Arizona Western COMMISSION Secretary, Office of the Secretary, College). Federal Communications, Commission, 47 CFR Part 73 FOR FURTHER INFORMATION CONTACT: Pam Washington, DC 20554. In addition to Blumenthal, Media Bureau, (202) 418– [DA 02–1483, MB Docket No. 02–155, RM– filing comments with the FCC, 1600. 10452] interested parties should serve the petitioner, or its counsel or consultant, SUPPLEMENTARY INFORMATION: This is a Digital Television Broadcast Service; as follows: Lee G. Petro, Fletcher, Heald synopsis of the Commission’s Notice of Charleston, WV & Hildreth, PLC, 11th Floor, 1300 North Proposed Rule Making, MB Docket No. 17th Street, Arlington, Virginia 22209– 02–151, adopted June 24, 2002, and AGENCY: Federal Communications Commission. 3801 (Counsel for Pappas Telecasting of released July 1, 2002. The full text of America). this document is available for public ACTION: Proposed rule. inspection and copying during regular FOR FURTHER INFORMATION CONTACT: Pam SUMMARY: The Commission requests business hours in the FCC Reference Blumenthal, Media Bureau, (202) 418– comments on a petition filed by Pappas Information Center, Portals II, 445 12th 1600. Telecasting of America, an applicant for Street, SW., Room CY–A257, a new station to operate on analog Washington, DC 20554. This document SUPPLEMENTARY INFORMATION: This is a channel 23 at Charleston, West Virginia, may also be purchased from the synopsis of the Commission’s Notice of proposing the substitution of DTV Commission’s duplicating contractor, Proposed Rule Making, MB Docket No. channel 52 for channel 23 at Charleston. Qualex International, Portals II, 445 02–155, adopted June 24, 2002, and DTV Channel 52 can be allotted to at 12th Street, SW., Room CY–B402, released July 1, 2002. The full text of reference coordinates 38–30–21 N. and Washington, DC 20554, telephone 202– this document is available for public 82–12–33 W. with a power of 100, a 863–2893, facsimile 202–863–2898, or inspection and copying during regular height above average terrain HAAT of via e-mail [email protected]. business hours in the FCC Reference Provisions of the Regulatory 273 meters. Since the community of Information Center, Portals II, 445 12th Flexibility Act of 1980 do not apply to Charleston is located within 400 Street, SW., Room CY–A257, this proceeding. kilometers of the U.S.-Canadian border, Washington, DC 20554. This document Members of the public should note concurrence from the Canadian may also be purchased from the that from the time a Notice of Proposed government must be obtained for this Commission’s duplicating contractor, Rule Making is issued until the matter allotment. Qualex International, Portals II, 445 is no longer subject to Commission DATES: Comments must be filed on or 12th Street, SW., Room CY–B402, consideration or court review, all ex before August 22, 2002, and reply Washington, DC, 20554, telephone 202– parte contacts are prohibited in comments on or before September 6, 863–2893, facsimile 202–863–2898, or Commission proceedings, such as this 2002. via e-mail [email protected].
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Provisions of the Regulatory substitution of channel 22 for channel Washington, DC 20554. This document Flexibility Act of 1980 do not apply to 43. Channel 22 can be allotted to may also be purchased from the this proceeding. Topeka, Kansas, with a plus offset at Commission’s duplicating contractor, Members of the public should note reference coordinates 39–00–00 N. and Qualex International, Portals II, 445 that from the time a Notice of Proposed 96–07–45 W. 12th Street, SW., Room CY–B402, Rule Making is issued until the matter DATES: Comments must be filed on or Washington, DC 20554, telephone 202– is no longer subject to Commission before August 22, 2002, and reply 863–2893, facsimile 202–863–2898, or consideration or court review, all ex comments on or before September 6, via e-mail [email protected]. parte contacts are prohibited in 2002. Provisions of the Regulatory Commission proceedings, such as this Flexibility Act of 1980 do not apply to one, which involve channel allotments. ADDRESSES: The Commission permits this proceeding. See 47 CFR 1.1204(b) for rules the electronic filing of all pleadings and Members of the public should note governing permissible ex parte contacts. comments in proceeding involving that from the time a Notice of Proposed For information regarding proper petitions for rule making (except in Rule Making is issued until the matter filing procedures for comments, see 47 broadcast allotment proceedings).See is no longer subject to Commission CFR 1.415 and 1.420. Electronic Filing of Documents in Rule consideration or court review, all ex Making Proceedings, GC Docket No. 97– parte contacts are prohibited in List of Subjects in 47 CFR Part 73 113 (rel. April 6, 1998). Filings by paper Commission proceedings, such as this Digital television broadcasting, can be sent by hand or messenger one, which involve channel allotments. Television. delivery, by commercial overnight See 47 CFR 1.1204(b) for rules For the reasons discussed in the courier, or by first-class or overnight governing permissible ex parte contacts. preamble, the Federal Communications U.S. Postal Service mail (although we For information regarding proper Commission proposes to amend 47 CFR continue to experience delays in filing procedures for comments, see 47 part 73 as follows: receiving U.S. Postal Service mail). The CFR 1.415 and 1.420. Commission’s contractor, Vistronix, PART 73—RADIO BROADCAST Inc., will receive hand-delivered or List of Subjects in 47 CFR Part 73 SERVICES messenger-delivered paper filings for Television broadcasting. the Commission’s Secretary at 236 For the reasons discussed in the 1. The authority citation for part 73 Massachusetts Avenue, NE., Suite 110, continues to read as follows: preamble, the Federal Communications Washington, DC 20002. The filing hours Commission proposes to amend 47 CFR Authority: 47 U.S.C. 154, 303, 334 and 336. at this location are 8:00 a.m. to 7:00 p.m. part 73 as follows: All hand deliveries must be held § 73.606 [Amended] together with rubber bands or fasteners. PART 73—RADIO BROADCAST 2. Section 73.606(b), the Table of Any envelopes must be disposed of SERVICES Television Allotments under West before entering the building. Virginia is amended by removing Commercial overnight mail (other than 1. The authority citation for part 73 channel 23 at Charleston. U.S. Postal Service Express Mail and continues to read as follows: Priority Mail) must be sent to 9300 East § 73.622 [Amended] Authority: 47 U.S.C. 154, 303, 334 and 336. Hampton Drive, Capitol Heights, MD 3. Section 73.622(b), the Digital Table 20743. U.S. Postal Service first-class § 73.606 [Amended] of Television Allotments under West mail, Express Mail, and Priority Mail 2. Section 73.606(b), the Table of Virginia is amended by adding DTV should be addressed to 445 12th Street, Television Allotments under Kansas, is channel 52 at Charleston. SW., Washington, DC 20554. All filings amended by removing Channel 43 and Federal Communications Commission. must be addressed to the Commission’s adding Channel 22+ at Topeka. Barbara A. Kreisman, Secretary, Office of the Secretary, Federal Communications Commission. Chief, Video Division, Media Bureau. Federal Communications Commission, Barbara A. Kreisman, [FR Doc. 02–16869 Filed 7–3–02; 8:45 am] Washington, DC 20554. In addition to Chief, Video Division, Media Bureau. filing comments with the FCC, BILLING CODE 6712–01–P [FR Doc. 02–16870 Filed 7–3–02; 8:45 am] interested parties should serve the petitioner, or its counsel or consultant, BILLING CODE 6712–01–P FEDERAL COMMUNICATIONS as follows:Dennis P. Corbett, Leventhal, COMMISSION Senter & Lerman, PLLC, Suite 600, 2000 K Street, NW., Washington, DC 20006– DEPARTMENT OF COMMERCE 47 CFR Part 73 1809 (Counsel for Davis Television National Oceanic and Atmospheric [DA 02–1482, MB Docket No. 02–154, RM– Topeka, LLC). Administration 10490] FOR FURTHER INFORMATION CONTACT: Pam Blumenthal, Media Bureau, (202) 418– 50 CFR Part 648 Television Broadcast Service; Topeka, 1600. KS [Docket No. 020620152-2152-01; I.D. SUPPLEMENTARY INFORMATION: This is a 061102A] AGENCY: Federal Communications synopsis of the Commission’s Notice of RIN 0648–AQ11 Commission. Proposed Rule Making, MB Docket No. ACTION: Proposed rule. 02–154, adopted June 24, 2002, and Fisheries of the Northeastern United released July 1, 2002. The full text of States; Atlantic Mackerel, Squid, and SUMMARY: The Commission requests this document is available for public Butterfish Fisheries; Control Date for comments on a petition filed by Davis inspection and copying during regular Atlantic Mackerel Television Topeka, LLC, an applicant business hours in the FCC Reference for a new station to operate on channel Information Center, Portals II, 445 12th AGENCY: National Marine Fisheries 43 at Topeka, Kansas, proposing the Street, SW., Room CY–A257, Service (NMFS), National Oceanic and
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Atmospheric Administration (NOAA), fisheries (57 FR 36384, August 13, A second control date of September Commerce. 1992), which stated that as of that date 12, 1997 (62 FR 48047)(1997 control ACTION: Advance notice of proposed no vessel would be guaranteed entry date), was established to discourage rulemaking; notice of control date for into a limited access fishery, if the speculative entry into the Atlantic the purposes of controlling entry in the Council chose to implement one. This mackerel fishery while potential Atlantic mackerel fishery. 1992 control date was rescinded for management regimes to control access Atlantic mackerel on September 27, into the fishery were discussed and SUMMARY: NMFS announces that it is 1994 (59 FR 49235), because the Council possibly developed by the Council. The considering, and is seeking public and NMFS believed that information Council intended to consider a comment on, proposed rulemaking to regarding biomass levels, fishing levels, controlled access plan in an amendment control future access to the Atlantic fishing effort, and catch indicated that to the FMP, however, subsequent mackerel (Scomber scombrus) resource the Atlantic mackerel fishery would not amendments focused on other issues, if a management regime is developed require limited-entry management in the including the need to address the and implemented under the Magnuson- foreseeable future. Removal of the 1992 requirements of the 1996 Sustainable Stevens Fishery Conservation and control date also removed a disincentive Fisheries Act. Management Act (Magnuson-Stevens to accessing this underutilized resource The Council recently adopted a Act) that limits the number of for vessel owners who were facing recommendation for an increase in the participants in the fishery. This severe restrictions in other Northeast 2003 Domestic Annual Processing announcement is intended, in part, to fisheries. (DAP) specification for Atlantic promote awareness of potential mackerel to 150,000 mt. This three fold In Amendment 5 to the FMP, the eligibility criteria for future access so as increase in the DAP specification Council included a provision that to discourage speculative entry into the compared with specifications in would require the Secretary of fishery while the Mid-Atlantic Fishery previous years was based on testimony Commerce to publish a control date for Management Council (Council) and from members of the harvesting and the Atlantic mackerel fishery when NMFS consider whether and how access processing sectors of the Atlantic commercial landings reached 50 percent to the Atlantic mackerel fishery should mackerel industry who indicated that of allowable biological catch. NMFS did be controlled. The date of publication of there is significant interest in expansion not include this provision in the this notification, July 5, 2002, shall be of domestic shore-side processing for known as the ‘‘control date’’ and may be proposed rule because, as explained in Atlantic mackerel in 2003. While the used for establishing eligibility criteria the preamble to that rule (60 FR 65618, proposed increase in DAP for 2003 is for determining levels of future access to December 20, 1995), it was not consistent with the FMP and current the Atlantic mackerel fishery subject to considered a management measure to be stock condition, the Council is Federal authority. implemented by regulation. Rather, it concerned about rapid expansion of was viewed as a statement of Council DATES: Written comments must be harvest capacity in the fishery and received on or before 5 p.m., local time, intent. NMFS further noted that the possible overcapitalization. In addition, August 5, 2002. Council could recommend the the Council is concerned that nearly five publication of a control date when it ADDRESSES: Written comments should years have passed since the 1997 control deemed the action necessary. At its May date was published. The Council be directed to Daniel T. Furlong, 1997 meeting, the Council requested Executive Director, Mid-Atlantic requested at its April 2002 meeting that that NMFS issue an advance notice of a new control date for the Atlantic Fishery Management Council, 300 proposed rulemaking reestablishing a South New Street, Dover, DE 19904– mackerel fisher y be published. control date for Atlantic mackerel. The Publication of this July 5, 2002, 6790. Mark the outside of the envelope, Council intended the control date to ‘‘Comments on Atlantic Mackerel control date is intended to discourage discourage new vessels from entering speculative entry into the Atlantic Control Date.’’ Comments also may be the fishery speculatively while the sent via facsimile (fax) to (302) 674– mackerel fishery while potential Council considered implementing a management regimes to control access 5399. Comments will not be accepted if management program for this fishery submitted via e-mail or Internet. into the fishery are discussed and that would control the rate on possibly developed by the Council. FOR FURTHER INFORMATION CONTACT: Paul capitalization in the fishery. Establishment of a new control date will H. Jones, Fishery Policy Analyst, 978– Amendment 5 to the FMP estimated that help to distinguish established 281–9273, fax 978–281–9135, e-mail the hold capacity for vessels issued participants from speculative entrants to [email protected]. MSB permits approached 50,000 mt if the fishery. Although participants are SUPPLEMENTARY INFORMATION: Atlantic each vessel made just one trip at full notified that entering the fishery after mackerel (Scomber scombrus) is a capacity. The Council members noted this new control date will not assure migratory species that supports that this capacity, combined with them of future access to the Atlantic important recreational and commercial reports that a large factory trawler might mackerel resource on the grounds of fisheries along the Atlantic coast of the enter the fishery, raised concerns previous participation, additional and/ United States and Canada. The most because the estimate of long-term or other qualifying criteria also may be recent stock assessment (SAW 30, 2000) potential yield for the fishery was applied. The Council may choose concluded that the stock biomass is at 150,000 mt. Further, both NMFS and the different and variably weighted methods high levels and is under exploited. The Council had indicated that first to qualify fishermen, based on the type Council developed the Fishery preference for entry into this fishery and length of participation in the fishery Management Plan for Atlantic Mackerel, should be afforded to Northeast region or on the quantity of landings. This Squid, and Butterfish (FMP) to provide vessels as an alternative to traditional notice establishes July 5, 2002, for for the development of the U.S. Atlantic fisheries that have been severely potential use in determining historical mackerel, squid, and butterfish (MSB) overfished. For these reasons, the or traditional participation in the fisheries. An initial notice establishing a Council voted to request publication of Atlantic mackerel fishery. This action control date of August 13, 1992 (1992 a second control date for Atlantic does not commit the Council to develop control date), was issued for the MSB mackerel. any particular management regime or to
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use any specific criteria for determining ADDRESSES: Comments on Amendment The Council concurred and adopted entry to the fishery. The Council may 69 may be mailed to Sue Salveson, Amendment 69 in October 2000. This choose a different control date, or may Assistant Regional Administrator, amendment would revise the inshore choose a management program that does Sustainable Fisheries Division, Alaska cooperative structure to allow an not make use of such a date. The Region, NMFS, P.O. Box 21668, Juneau, inshore cooperative to contract with a Council may choose also to take no AK 99802-1668, Attn: Lori Gravel- non-member AFA inshore catcher vessel further action to control entry or access Durall. Hand delivery or courier that is a member of another inshore to the fishery. Any action by the Council delivery of comments may be sent to the cooperative to harvest a portion of the will be taken pursuant to the Federal Building, 709 West 9th St., cooperative’s allocation. However, this requirements for FMP development Room 453, Juneau, AK, 99801. Copies of amendment would not change established under the Magnuson- Amendment 69 and the Regulatory cooperative memberships or authorize Stevens Act. Impact Review/Initial Regulatory non-AFA vessels to harvest BSAI This notification also gives the public Flexibility Analysis (RIR/IRFA) pollock. notice that interested participants prepared for this action are available Subsection 213(c) of the AFA should locate and preserve records that from NMFS at the above address, or by provides the Council with the authority substantiate and verify their calling the Alaska Region, NMFS, at to recommend measures that supersede participation in the Atlantic mackerel (907) 586–7228. fishery in Federal waters. certain aspects of the AFA. Subsection FOR FURTHER INFORMATION CONTACT: Kent 213(c) states: Authority: 16 U.S.C. 1801 et seq. Lind, (907) 586–7228 or [email protected]. ‘‘The North Pacific Council may Dated: June 28, 2002. recommend and the Secretary may approve William T. Hogarth, SUPPLEMENTARY INFORMATION: The conservation and management measures in Assistant Administrator for Fisheries, Magnuson-Stevens Fishery accordance with the Magnuson-Stevens Act– National Marine Fisheries Service. Conservation and Management Act that supersede the provisions of this title, [FR Doc. 02–16813 Filed 7–3–02; 8:45 am] (Magnuson-Stevens Act) requires that except for Sections 206 and 208 for conservation or to mitigate adverse effects in BILLING CODE 3510–22–S each regional fishery management council submit any FMP or FMP fisheries or on owners of fewer than three amendment it prepares to NMFS for vessels in the directed pollock fishery provided such measures take into account all DEPARTMENT OF COMMERCE review and approval, disapproval, or factors affecting the fisheries and are partial approval. The Magnuson-Stevens National Oceanic and Atmospheric imposed fairly and equitably to the extent Act also requires that NMFS, upon practicable among and within the sectors in Administration receiving an FMP, immediately publish the directed pollock fishery.’’ a notice in the Federal Register that the 50 CFR Part 679 FMP or amendment is available for Amendment 69 would supersede [I.D. 062602E] public review and comment. inshore cooperative restrictions set out The American Fisheries Act (AFA) in paragraphs 210(b)(1)(B) and 210(b)(5) RIN 0648–AP71 established a system of inshore pollock of the AFA. Fisheries of the Exclusive Economic cooperatives under which the owners of Public comments are being solicited Zone off Alaska; Amendment 69 To catcher vessels that deliver to a on the amendment through the end of Allow American Fisheries Act Inshore particular processor may form a the comment period stated in this NOA. Pollock Cooperatives To Contract With cooperative and receive an exclusive A proposed rule that would implement Non-Member Vessels allocation of Bering Sea and Aleutian the amendment may be published in the Islands Management Area (BSAI) Federal Register for public comment AGENCY: National Marine Fisheries pollock. Subparagraph 210(b)(1)(B) of following NMFS’s evaluation under the Service (NMFS), National Oceanic and the AFA specifies that only the member Magnuson-Stevens Act procedures. Atmospheric Administration (NOAA), vessels of a cooperative may harvest the Public comments on the proposed rule Commerce. cooperative’s annual pollock allocation. must be received by the end of the ACTION: Notice of Availability (NOA); In 2000, several inshore catcher vessel comment period on the amendment to request for comments. owners petitioned the Council to be considered in the approval/ provide cooperatives with greater disapproval decision on the SUMMARY: The North Pacific Fishery flexibility to contract with non-member Management Council (Council) has amendment, whether specifically vessels. They argued that members of directed to the amendment or the submitted Amendment 69 to the Fishery inshore cooperatives need greater Management Plan for the Groundfish proposed rule. Comments received after flexibility to (1) increase efficiency and that date will not be considered in the Fishery of the Bering Sea and Aleutian provide vessel owners with a more Islands Area (FMP). This amendment approval/disapproval decision on the functional market for leasing of amendment. To be considered in the would allow an American Fisheries Act individual pollock allocations, (2) inshore pollock cooperative to contract approval/disapproval decision, ensure that a cooperative is able to comments must be received by the close with a non-member catcher vessel to harvest its entire allocation in the event harvest a portion of the cooperative’s of business on the last day of the of vessel breakdowns or other comment period specified in this NOA; annual pollock allocation. The purpose unanticipated emergencies, and (3) of this action is to provide a means by that does not mean postmarked or improve safety by providing greater otherwise transmitted by that date. which the members of a cooperative flexibility for larger vessels to harvest may harvest their entire pollock cooperative allocations during Dated: June 28, 2002. allocation in a safe and cost-effective hazardous winter months and when Dean Swanson, manner. Steller sea lion conservation measures Acting Director, Office of Sustainable DATES: Comments on Amendment 69 require that fishing be done further Fisheries, National Marine Fisheries Service. must be received at the following offshore--outside of Steller sea lion [FR Doc. 02–16812 Filed 7–3–02; 8:45 am] address by September 3, 2002. critical habitat. BILLING CODE 3510–22–S
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Notices Federal Register Vol. 67, No. 129
Friday, July 5, 2002
This section of the FEDERAL REGISTER on advisory committees and/or research Dated: June 28, 2002. contains documents other than rules or and promotion boards. The information Ann M. Veneman, proposed rules that are applicable to the will be used to both conduct Secretary of Agriculture. public. Notices of hearings and investigations, background clearances and to compile [FR Doc. 02–16826 Filed 7–3–02; 8:45 am] committee meetings, agency decisions and annual reports on advisory committees. rulings, delegations of authority, filing of BILLING CODE 3410–01–M petitions and applications and agency Estimate of Burden: Public reporting statements of organization and functions are burden for this collection of information examples of documents appearing in this is estimated to average 30 minutes per DEPARTMENT OF AGRICULTURE section. respondent. Office of the Secretary Respondents: Individuals or DEPARTMENT OF AGRICULTURE households. Solicitation of Applicants for Estimated number of respondents: Membership on a National Board on Office of the Secretary 1,631. Rural America Notice of Intent To Seek Approval To Estimated number of responses per AGENCY: Office of the Secretary, USDA. Collect Information respondent: 1. ACTION: Notice. Estimated total annual burden on AGENCY: Office of the Secretary, USDA. respondents: 815. SUMMARY: The Consolidated Farm and ACTION: Notice and request for public Rural Development Act (7 U.S.C. 1921 Comments: Comments are invited on: comment. et seq.) was amended by section 6030 of (a) Whether the proposed collection of the Farm Security and Rural Investment information is necessary for the proper SUMMARY: In accordance with the Act of 2002 (Pub. L. 107–171) to create performance of the functions of the Paperwork Reduction Act of 1995 (Pub. the National Board on Rural America. agency, including, whether the L. 104–13) and the Office of The Act provides that the Board shall information will have practical utility. Management and Budget (OMB) consist of 14 members appointed by the (b) The accuracy of the agency’s regulations at 5 CFR Part 1320 (60 FR Secretary. This notice solicits estimate of the burden of the proposed 44978, August 29, 1995), this notice candidates interested in serving on this collection of information; including the announces the Office of the White Board. Qualifications for candidates are validity of the methodology and House Liaison’s intention to request an specified in the SUPPLEMENTARY assumptions used. (c) Ways to enhance extension of the currently approved INFORMATION section of this Notice. the quality, utility, and clarity of the manner of information collection (form Other than recommendations by elected information to be collected. (d) Finally, AD–755) for all Advisory Committee members of Federal, State or county ways to minimize the burden of the Membership Background Information— governments, nominations will be collection of information on those who expiration July 31, 2002; with the accepted from organizations only and are to respond; such as through the use inclusion of one item (#19) at the end should be on the organization’s of appropriate automated, electronic, of the form, to be detailed later in this letterhead. Nominations from mechanical or other technological announcement. individuals, either for themselves or collection techniques or forms of DATES: Comments on this notice must be others, will not be considered. received by September 9, 2002. information technology. DATES: Submit a completed application ADDRESSES: Address all comments Additional Information: The USDA by 5:00 p.m. on July 19, 2002. concerning this notice to Denise Bell, intends to provide electronic access and ADDRESSES: Submit completed written Program Support Specialist, Office of a submission alternative for applicants applications to the Office of the Under the White House Liaison, Telephone: submitting this information on or before Secretary, Rural Development. ATTN: (202) 720–2406, 1400 Independence December 31, 2002. Duane Ischer. 1400 Independence Avenue, SW., the Whitten Building, Proposed Change to form AD–755: Avenue, SW., Room 206–W, STOP Room 219–A, Washington, DC 20250. The Office of the White House Liaison 0107, Washington, DC 20250–0107 or by SUPPLEMENTARY INFORMATION: Advisory proposes the addition of a section 19, FAX to 202–720–2080. To ensure timely Committee Membership Background requesting that a copy of the applicant’s delivery, nominations may be faxed to Information. OMB Number 0505–0001. personal biography and/or re´sume´ be (202) 720–2080. FOR FURTHER INFORMATION CONTACT: submitted along with form AD–755. FOR FURTHER INFORMATION CONTACT: Denise Bell at the above address or Send comments to: Denise Bell, Duane Ischer, Office of the Under telephone: (202) 720–2406. Program Support Specialist. Office of Secretary, Rural Development, 202– Expiration Date of Approval: July 31, the White House Liaison. 1400 720–2721. E-Mail: 2002. Independence Avenue, SW. The [email protected]. Type of Request: To extend the use of Whitten Building, Room 219–A SUPPLEMENTARY INFORMATION: The Act the currently approved information Washington, DC 20250. collection form (AD–755) with one provides that, in addition to the addition to the form. All responses to this notice will be Secretary or the designee of the Abstract: The primary objective for summarized and included in the request Secretary, the National Board shall the use of the AD–755 form is to for OMB approval. consist of 14 members appointed by the determine the qualifications, suitability All comments will also become a Secretary from among representatives and availability of a candidate to serve matter of public record. of:
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(1) Nationally recognized by e-mail. If you use postal mail/ Animal and Plant Health Inspection entrepreneurship organizations; commercial delivery, please send four Service, USDA, regulates the (2) Regional planning and copies of your comment (an original and importation of animals and animals development organizations; three copies) to: Docket No. 02–073–1, products in order to prevent the (3) Community-based organizations; Regulatory Analysis and Development, introduction of animal diseases, such as (4) Elected members of county PPD, APHIS, Station 3C71, 4700 River exotic Newcastle disease, into the governments; Road Unit 118, Riverdale, MD 20737– United States. The regulations (5) Elected members of State 1238. Please state that your comment pertaining to the importation of animals legislatures; refers to Docket No. 02–073–1. If you and animal products are set forth in the (6) The rural philanthropic use e-mail, address your comment to Code of Federal Regulations (CFR) in community; and [email protected]. Your title 9, chapter I, subchapter D (9 CFR (7) Indian tribes (as defined in section comment must be contained in the body parts 91 through 99). 4 of the Indian Self-Determination and of your message; do not send attached We currently have regulations in Education Assistance Act (25 U.S.C. files. Please include your name and place that restrict the importation of 450b). address in your message and ‘‘Docket poultry meat and other poultry products An AD Form 755, Nominee No. 02–073–1’’ on the subject line. from Mexico and other regions of the Background Information, is required for You may read any comments that we world where exotic Newcastle disease each nominee. A copy of the AD Form receive on this docket in our reading has been determined to exist. However, 755 is available on the USDA Rural room. The reading room is located in we allow the importation, under Development Web site at http:// room 1141 of the USDA South Building, specified conditions, of poultry meat www.rurdev.usda.gov/rd/ 14th Street and Independence Avenue and poultry products from the Mexican farmbill2002.html. SW., Washington, DC. Normal reading States of Sinaloa and Sonora because we The term of office initially will be 4 room hours are 8 a.m. to 4:30 p.m., have determined that poultry meat and years for 5 members, 3 years for 5 Monday through Friday, except products from these two Mexican States, members, and 2 years for 4 members. holidays. To be sure someone is there to when imported in accordance with After the initial term, the term will be help you, please call (202) 690–2817 those conditions, pose a negligible risk for 4 years. before coming. of introducing exotic Newcastle disease The responsibilities of the board APHIS documents published in the into the United States. To ensure that include developing a national strategic Federal Register, and related these items are safe for importation, we investment plan for rural America and information, including the names of require that certain data appear on the overseeing the delivery of planning and organizations and individuals who have foreign meat inspection certificate that innovation grants to regional boards. commented on APHIS dockets, are accompanies the poultry meat or other Dated: June 27, 2002. available on the Internet at http:// poultry products from Sinaloa and Ann M. Veneman, www.aphis.usda.gov/ppd/rad/ Sonora. We also require that serially numbered seals be applied to containers Secretary. webrepor.html. carrying the poultry meat or other FOR FURTHER INFORMATION CONTACT: [FR Doc. 02–16825 Filed 7–3–02; 8:45 am] For poultry products. These requirements BILLING CODE 3410–XY–M information on the regulations regarding necessitate the use of information importation of poultry meat and other collection activities. poultry products from Sinaloa and We are asking the Office of DEPARTMENT OF AGRICULTURE Sonora, Mexico, contact Dr. Michael Management and Budget (OMB) to David, Assistant Director, Sanitary approve our use of these information Animal and Plant Health Inspection International Standards Team, National Service collection activities for an additional 3 Center for Import and Export, VS, years. [Docket No. 02–073–1] APHIS, 4700 River Road Unit 33, The purpose of this notice is to solicit Riverdale, MD 20737; (301) 734–8093. comments from the public (as well as Notice of Request for Extension of For copies of more detailed information affected agencies) concerning our Approval of an Information Collection on the information collection, contact information collection. These comments Mrs. Celeste Sickles, APHIS’ AGENCY: Animal and Plant Health will help us: Information Collection Coordinator, at Inspection Service, USDA. (1) Evaluate whether the collection of (301) 734–7477. information is necessary for the proper ACTION: Extension of approval of an SUPPLEMENTARY INFORMATION: performance of the functions of the information collection; comment Title: Importation of Poultry Meat and Agency, including whether the request. Other Poultry Products from Sinaloa information will have practical utility; SUMMARY: In accordance with the and Sonora, Mexico. (2) Evaluate the accuracy of our Paperwork Reduction Act of 1995, this OMB Number: 0579–0144. estimate of the burden of the notice announces the Animal and Plant Type of Request: Extension of information collection, including the Health Inspection Service’s intention to approval of an information collection. validity of the methodology and Abstract: The United States request an extension of approval of an assumptions used; Department of Agriculture (USDA) is information collection in support of the (3) Enhance the quality, utility, and responsible for protecting the health of regulations for the importation of clarity of the information to be our Nation’s livestock and poultry poultry meat and other poultry products collected; and populations by preventing the (4) Minimize the burden of the from Sinaloa and Sonora, Mexico. introduction of contagious, infectious, information collection on those who are DATES: We will consider all comments or communicable diseases of livestock to respond, through use, as appropriate, we receive on or before September 3, and poultry and for eradicating such of automated, electronic, mechanical, 2002. diseases from the United States when and other collection technologies, e.g., ADDRESSES: You may submit comments feasible. In connection with this permitting electronic submission of by postal mail/commercial delivery or mission, Veterinary Services of the responses.
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Estimate of burden: The public with our analysis of potential individual 59 Chennell Drive, Suite 7, Concord, NH reporting burden for this collection of and cumulative impacts of an expanded 03301–8548; phone (603) 223–6832. information is estimated to average 1 oral rabies vaccine program. SUPPLEMENTARY INFORMATION: hour per response. DATES: We will consider all comments Background Respondents: Federal animal health that we receive by August 5, 2002. authorities in Mexico, and personnel in Unless new substantial issues bearing The Wildlife Services (WS) program Sinaloa and Sonora, Mexico, who on the effects of the proposed expansion in the Animal and Plant Health operate slaughtering and processing of the oral rabies vaccine program are Inspection Service (APHIS) cooperates plants and who engage in the export of brought to our attention, the new with Federal agencies, State and local poultry meat and other poultry products decision/finding of no significant governments, and private individuals to to the United States. impact will take effect upon the close of research and implement the best Estimated annual number of the comment period. methods of managing conflicts between respondents: 10. wildlife and human health and safety, Estimated annual number of ADDRESSES: You may submit comments agriculture, property, and natural responses per respondent: 4. by postal mail/commercial delivery or resources. Wildlife-borne diseases that Estimated annual number of by e-mail. If you use postal mail/ can affect domestic animals and humans responses: 40. commercial delivery, please send four are among the types of conflicts that Estimated total annual burden on copies of your comment (an original and APHIS–WS addresses. Wildlife is the respondents: 40 hours. (Due to three copies) to: Docket No. 01–009–4, dominant reservoir of rabies in the averaging, the total annual burden hours Regulatory Analysis and Development, United States. may not equal the product of the annual PPD, APHIS, Station 3C71, 4700 River On December 7, 2000, a notice was number of responses multiplied by the Road Unit 118, Riverdale, MD 20737– published in the Federal Register (65 reporting burden per response.) 1238. Please state that your comment FR 76606–76607, Docket No. 00–045–1) All responses to this notice will be refers to Docket No. 01–009–4. If you in which the Secretary of Agriculture summarized and included in the request use e-mail, address your comment to declared an emergency and transferred for OMB approval. All comments will [email protected]. Your funds from the Commodity Credit also become a matter of public record. comment must be contained in the body Corporation to APHIS–WS for the Done in Washington, DC, this 28th day of of your message; do not send attached continuation and expansion of oral June, 2002. files. Please include your name and rabies vaccination (ORV) programs to Bobby R. Acord, address in your message and ‘‘Docket address rabies in the States of Ohio, Administrator, Animal and Plant Health No. 01–009–4’’ on the subject line. New York, Vermont, Texas, and West Inspection Service. To obtain copies of the environmental Virginia. [FR Doc. 02–16824 Filed 7–3–02; 8:45 am] assessment, the original decision/ On March 7, 2001, we published a finding of no significant impact, and the notice in the Federal Register (66 FR BILLING CODE 3410–34–P supplemental decision/finding of no 13697–13700, Docket No. 01–009–1) to significant impact, contact Tara Wilcox, solicit public involvement in the DEPARTMENT OF AGRICULTURE Operational Support Staff, Wildlife planning of a proposed cooperative Services, APHIS, 4700 River Road Unit program to stop the spread of rabies in Animal and Plant Health Inspection 87, Riverdale, MD 20737–1234; phone the States of New York, Ohio, Texas, Service (301) 734–7921, fax (301)734–5157, or e- Vermont, and West Virginia. The notice mail: [email protected]. also stated that a small portion of [Docket No. 01–009–4] When requesting copies, please specify northeastern New Hampshire and the Wildlife Services; Availability of a the document or documents you wish to western counties in Pennsylvania that border Ohio could also be included in Supplemental Decision/Finding of No receive. these control efforts, and discussed the Significant Impact for Oral Rabies You may also read the documents possibility of APHIS–WS cooperating in Vaccine Program discussed in this notice, as well as any comments that we receive, in our smaller-scale ORV projects in the States AGENCY: Animal and Plant Health reading room. The reading room is of Florida, Massachusetts, Maryland, Inspection Service, USDA. located in room 1141 of the USDA New Jersey, Virginia, and Alabama. The ACTION: Notice and request for South Building, 14th Street and March 2001 notice contained detailed comments. Independence Avenue SW., information about the history of the Washington, DC. Normal reading room problems with raccoon rabies in eastern SUMMARY: We are advising the public hours are 8 a.m. to 4:30 p.m., Monday States and with gray fox and coyote that we have prepared a supplement to through Friday, except holidays. To be rabies in Texas, along with information an August 2001 decision/finding of no sure someone is there to help you, about previous and ongoing efforts significant impact relative to oral rabies please call (202) 690–2817 before using ORV baits in programs to prevent vaccination programs in several States. coming. the spread of the rabies variants or Since the publication of our original ‘‘strains’’ of concern. APHIS documents published in the decision/finding of no significant Subsequently, on May 17, 2001, we Federal Register, and related impact, we have determined there is a published in the Federal Register (66 information, including the names of need to expand the oral rabies vaccine FR 27489, Docket No. 01–009–2) a organizations and individuals who have program to include the States of notice in which we announced the commented on APHIS dockets, are Kentucky and Tennessee to effectively availability, for public review and available on the Internet at http:// stop the westward spread of raccoon comment, of an environmental www.aphis.usda.gov/ppd/rad/ rabies. The purpose of the new assessment (EA) that examined the webrepor.html. decision/finding of no significant potential environmental effects of the impact is to facilitate planning, FOR FURTHER INFORMATION CONTACT: Mr. ORV programs described in our March interagency coordination, and program Dennis Slate, Rabies Program 2001 notice. We solicited comments on management and to provide the public Coordinator, Wildlife Services, APHIS, the EA for 30 days ending on June 18,
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2001. We received one comment by that raccoon rabies in the eastern States and three copies) to: Docket No. 98–090–2, date. The comment was from an animal gray fox and coyote rabies in Texas. The Regulatory Analysis and Development, protection organization and supported EA analyzed the proposed action and PPD, APHIS, Station 3C71, 4700 River APHIS’ efforts toward limiting or several alternatives with respect to a Road Unit 118, Riverdale, MD 20737– eradicating rabies in wildlife number of environmental and other 1238. Please state that your comment populations. The commenter did not, issues raised by involved cooperating refers to Docket No. 98–090–2. If you however, support the use of lethal agencies and the public. Analyses of the use e-mail, address your comment to monitoring methods or local potential impacts of ORV programs in [email protected]. Your depopulation as part of an ORV those specific geographic areas that comment must be contained in the body program. were not examined in the EA are of your message; do not send attached Finally, on August 30, 2001, we presented in the supplemental decision/ files. Please include your name and published a notice in the Federal FONSI and have been incorporated into address in your message and ‘‘Docket Register (66 FR 45835–45836, Docket the decisionmaking process. No. 98–090–2’’ on the subject line. No. 01–009–3) in which we advised the The EA, the August 2001 FONSI, and You may read the revised risk public of APHIS’ decision and finding the supplemental FONSI that is the analysis and any comments that we of no significant impact (FONSI) subject of this notice have been receive on that document in our reading regarding the use of oral vaccination to prepared in accordance with: (1) The room. The reading room is located in control specific rabies virus strains in National Environmental Policy Act of room 1141 of the USDA South Building, raccoons, gray foxes, and coyotes in the 1969 (NEPA), as amended (42 U.S.C. 14th Street and Independence Avenue United States. That decision allows 4321 et seq.), (2) regulations of the SW., Washington, DC. Normal reading APHIS–WS to purchase and distribute Council on Environmental Quality for room hours are 8 a.m. to 4:30 p.m., ORV baits, monitor the effectiveness of implementing the procedural provisions Monday through Friday, except the ORV programs, and participate in of NEPA (40 CFR parts 1500–1508), (3) holidays. To be sure someone is there to implementing contingency plans that USDA regulations implementing NEPA help you, please call (202) 690–2817 may involve the reduction of a limited (7 CFR part 1), and (4) APHIS’ NEPA before coming. number of local target species Implementing Procedures (7 CFR part You may request a copy of ‘‘Risk populations through lethal means (i.e., 372). Analysis for Importation of Classical the preferred alternative identified in Swine Fever in Swine and Swine the EA). The decision was based upon Done in Washington, DC, this 28th day of June, 2002. Products from the European Union the final EA, which reflected our review Bobby R. Acord, December 2000’’ by writing to the and consideration of the comments FOR FURTHER Administrator, Animal and Plant Health person listed below under received from the public in response to INFORMATION CONTACT. The risk analysis our March 2001 and May 2001 notices Inspection Service. [FR Doc. 02–16823 Filed 7–3–02; 8:45 am] is also available on the Internet. and information gathered during Instructions for electronic access are BILLING CODE 3410–34–P planning/scoping meetings with State included below under SUPPLEMENTARY health departments, other State and INFORMATION. local agencies, the Ontario Ministry of DEPARTMENT OF AGRICULTURE APHIS documents published in the Natural Resources, and the Centers for Federal Register, and related Disease Control and Prevention. Animal and Plant Health Inspection information, including the names of Since the August 2001 publication of Service organizations and individuals who have our original decision/FONSI, we have commented on APHIS dockets, are determined there is a need to expand [Docket No. 98–090–3] available on the Internet at http:// the ORV programs to include the States Classical Swine Fever: Availability of www.aphis.usda.gov/ppd/rad/ of Kentucky and Tennessee to webrepor.html. effectively stop the westward spread of Risk Analysis Related to the raccoon rabies. The purpose of the new Importation of Swine and Swine FOR FURTHER INFORMATION CONTACT: Dr. decision/FONSI is to facilitate planning, Products From the European Union Anne Goodman, Supervisory Staff Officer, Regionalization Evaluation interagency coordination, and program AGENCY: Animal and Plant Health Services Staff, National Center for management and to provide the public Inspection Service, USDA. with our analysis of potential individual Import and Export, VS, APHIS, 4700 ACTION: and cumulative impacts of the Notice of reopening and River Road Unit 38, Riverdale, MD expanded ORV programs. extension of comment period. 20737–1231; (301) 734–4356. The States where APHIS–WS SUMMARY: We are reopening and SUPPLEMENTARY INFORMATION: involvement would be continued or extending the comment period for a Background expanded include Kentucky, Tennessee, revised analysis of the risk of New York, Ohio, Texas, Vermont, introducing classical swine fever virus On May 3, 2002, we published in the Florida, Virginia, and West Virginia. A in swine and swine products imported Federal Register (67 FR 22388–22389, small portion of northwestern New from the European Union. This action Docket No. 98–090–2) a notice of the Hampshire and the western counties in will allow interested persons additional availability of and request for comments Pennsylvania that border Ohio could time to prepare and submit comments. on a revised risk analysis of the risk of also be included in these control efforts. introducing classical swine fever virus DATES: We will consider all comments In addition, APHIS–WS may cooperate that we receive on or before July 17, in swine and swine products imported in smaller-scale ORV projects in the 2002. from the European Union. States of Florida, Massachusetts, Comments on the revised risk analysis Maryland, New Jersey, and Alabama as ADDRESSES: You may submit comments were required to be received on or part of the proposed action. As noted by postal mail/commercial delivery or before July 2, 2002. We are reopening above, the primary goal of the ORV by e-mail. If you use postal mail/ and extending the comment period on programs is to stop the spread of commercial delivery, please send four the risk analysis for an additional 15 specific strains of the rabies virus, i.e., copies of your comment (an original and days ending July 17, 2002. This action
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will allow interested persons additional completed by June 30, 2003. Authority percent of the mares owned, or boarded time to prepare and submit comments. to make Horse Breeder loans terminates on a farm owned, operated, or leased by September 30, 2003. Comments on the the breeder must have failed to Accessing the Revised Risk Analysis on information collection associated with conceive, miscarried, aborted or the Internet this notice must be received on or before otherwise failed to produce a live, The Internet address for accessing the September 3, 2002, to be given full healthy foal. revised risk analysis is http:// consideration. All persons approved for loan www.aphis.usda.gov/vs/reg- ADDRESSES: General information and the assistance must execute loan request.html. At the bottom of that Web application form FSA 410–1 may be instruments and legal documents to site page, click on ‘‘Information obtained from the FSA Internet web site secure the loan. For entity applicants, previously submitted by Regions at: www.fsa.usda.gov or the USDA, Farm the loan instruments and legal requesting export approval and their Service Agency listed in your local documents must be executed in the supporting documentation.’’ At the next telephone directory. name of the entity and all officers or screen, click on the triangle beside partners and any board members. Horse FOR FURTHER INFORMATION CONTACT: ‘‘European Union/Not Specified/ Cathy Quayle, Senior Loan Officer or Breeder loans are not made under the Classical Swine Fever,’’ then on the Patrick Spalding, Senior Loan Officer, authority of the Consolidated Farm and triangle beside ‘‘Response by APHIS.’’ A USDA/FSA/DAFLP/STOP 0522, 1400 Rural Development Act (CONACT), (7 link will then appear for ‘‘Risk Analysis Independence Avenue, SW, U.S.C. 1961 et seq.); therefore, the for Importation of Classical Swine Fever Washington, DC 20250–0522; telephone Agency will service Horse Breeder loans Virus in Swine and Swine Products (202) 720–1472; facsimile (202) 720– in accordance with existing non- from the European Union December 6797; electronic mail: program Agency regulations in 7 CFR 2000.’’ Following that link will allow [email protected] or part 1951, subpart J, or its successor you to view the revised risk analysis. [email protected]. regulation. The Agency will not provide Authority: 7 U.S.C. 450, 1622, 7711–7714, direct farm loan program loan servicing SUPPLEMENTARY INFORMATION: 7751, 7754, 8303, 8306, 8307, 8308, 8310, benefits to Horse Breeder Loan Program 8311, 8313, and 8315; 21 U.S.C. 136 and Executive Order 12372 borrowers. 136a; 31 U.S.C. 9701; 42 U.S.C. 4331 and 4332; 7 CFR 2.22, 2.80, and 371.4. This program is not subject to the Environmental Compliance provisions of Executive Order 12372, The environmental impacts of the Done in Washington, DC, this 2nd day of which requires consultation with State July 2002. loan program to be implemented by this and local officials. NOFA have been considered in Bobby R. Acord, During the 2001 horse breeding accordance with the provisions of the Administrator, Animal and Plant Health season, horse breeders suffered from an National Environmental Policy Act of Inspection Service. overwhelming number of early and late 1969 (NEPA, 42 U.S.C. 4321, et seq.) [FR Doc. 02–16992 Filed 7–3–02; 8:45 am] term fetal losses. Even with possible Based on the nature and scope of this BILLING CODE 3410–34–P improvement in the coming breeding notice, FSA has concluded that the seasons, the economic impact on notice will not have any significant breeders will present financial impacts upon the human environment DEPARTMENT OF AGRICULTURE difficulties over an extended period. as documented through the completion The Agency is required by section Farm Service Agency of an environmental assessment. A copy 759(c) of the Act to make loans available of the environmental assessment is to eligible horse breeders who have Notice of Funds Availability (NOFA) available for inspection and review suffered a qualifying loss as a result of Inviting Applications for the Horse upon request. Therefore, FSA has MRLS. Researchers have not pinpointed Breeder Loan Program developed a Finding of No Significant the exact cause of MRLS; however, as a Impact (FONSI) pursuant to NEPA, the AGENCY: Farm Service Agency, USDA. result of extensive studies, common regulations of the Council on ACTION: Notice. factors that are believed to have been Environmental Quality (40 CFR parts the cause have been identified. The 1500–1508), and FSA’s regulations for SUMMARY: This Notice announces the Agency is adopting the definition of compliance with NEPA, 7 CFR part availability of funding to implement the MRLS developed by experts from the 1940, subpart G. Horse Breeder Loan Program as required equine industry that is recognized and by section 759 of the Agriculture, Rural accepted by veterinarians. Paperwork Reduction Act Development, Food and Drug These loans will mitigate the income Administration, and Related Agencies A request for emergency clearance of loss and reduction in credit availability the information collections associated Appropriations Act, 2002 (Act) (Pub. L. faced by horse breeders. Assistance is 107–76), which was enacted November with this notice has been submitted to limited to only those horse breeders the Office of Management and Budget 28, 2001. The Act directed the Secretary who have suffered losses as a result of to implement a temporary low-interest (OMB) under 5 CFR 1320.13(a)(2)(iii). MRLS, cannot obtain sufficient credit In accordance with the Paperwork loan program to assist horse breeders elsewhere and meet all other suffering economic loss as a result of Burden Reduction Act of 1995, FSA will requirements established in this notice. provide a regular submission of the mare reproductive loss syndrome To assure that the recipients of these (MRLS). information collection package to OMB loans are those most impacted by the at the end of the comment period for the DATES: The Agency will begin accepting effects of MRLS, eligibility requirements following notice. applications on July 1, 2002. The are restrictive. As required by the Act, Title: Horse Breeder Loans. deadline for receipt of an application the horse breeder must derive more than OMB Control Number: 0560–NEW. Form FSA 410–1 is September 30, 2002. 70 percent of their income from Type of request: Request for review The Agency will not consider any breeding, boarding, raising, training, or and extension. application received after the deadline. selling horses. The losses must have Abstract: The collection of the The application package must be resulted from MRLS, and at least 30 information required by this notice is
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required in order to certify that Adequate security is property that Horse breeder business is the business applicants for loans are eligible to provides a security value at least equal of breeding, boarding, raising, training, receive benefits. The information will be to the amount of the loan. or selling horses. collected from applicants in paper form Agency is the Farm Service Agency, Losses are the verifiable damages of by Agency loan approval officials in the its employees, and any successor the interrupted horse reproductive county office that serves the applicant’s agency. process resulting from MRLS. geographic area. The information will be Applicant is the individual or Mare Reproductive Loss Syndrome used and evaluated by the loan approval business entity applying for the loan. (MRLS) is, during the period beginning official to determine if the applicant Approval official is an Agency official April 24, 2001, and ending June 30, meets the criteria established by the who has been delegated approval 2001, the occurrence of any of the Agency. The information may be authorities within applicable loan following equine medical conditions: viewed, used and monitored by other programs. 1. Early- and late-term equine fetal Agency or USDA officials, and may be Bred is the attempt to produce losses; released in accordance with the Privacy offspring by sexual union or artificial 2. Pericarditis; Act or Freedom of Information Act. The insemination. 3. Epicarditis; information will be collected on an as Business entity is a corporation, 4. Unilateral endophthalmitis; or needed basis. Failure to collect this partnership, joint operation, trust, 5. Panophthalmitis. information may result in persons limited liability company, or Ordinary and necessary expenses are receiving benefits other than intended cooperative. the operating expenses directly related program beneficiaries. Cash flow budget is a projection to the horse breeder business, including, Estimate of Burden: Public reporting listing all anticipated cash inflows but not limited to: taxes, feed, veterinary for this collection of information is (including all farm income, non-farm expenses, fixtures and farm estimated to average .63 hours per income and all loan advances) and all maintenance. response. cash outflows (including all farm and Readily available is when the non-farm debt service and other insurance is sold by insurance agents in Respondents: Farms, individuals and expenses) to be incurred by the the applicant’s normal trade area. businesses. borrower during the period of the Security is property or right of any Estimated number of respondents: budget. A cash flow budget may be kind that is subject to a real or personal 800. completed either for a 12-month period, property lien. Any reference to Estimated number of responses per a typical production cycle, or the life of ‘‘collateral’’ or ‘‘security property’’ will respondent: 1. the loan, as appropriate. be considered a reference to the term Estimated total annual burden on False information is information ‘‘security.’’ respondents: 1258 hours. provided by an applicant, borrower, or States or United States is the United Comments are invited on (a) whether other source to the Agency which is States itself, any of the fifty States, the the collection of information is known by the provider to be incorrect, Commonwealth of Puerto Rico, the necessary for the proper performance of and was provided to the Agency in Virgin Islands of the United States, the functions of the agency, including order to obtain benefits for which the Guam, American Samoa, and the whether the information will have applicant or borrower would not Commonwealth of the Northern Mariana practical utility; (b) the accuracy of the otherwise have been eligible. Islands. agency’s estimate of burden; (c) ways to Feasible plan is a plan that United States non-citizen national is enhance the quality, utility and clarity demonstrates that the loan will be a person born in an outlying possession of the information to be collected; (d) repaid as agreed, as determined by the of the United States (American Samoa ways to minimize the burden collection Agency. The plan must demonstrate that or Swain’s Island) on or after the date on those who are to respond, including the applicant will meet all other credit the U.S. acquired the possession, or a through use of appropriate automated, needs and obligations, including person whose parents are U.S. non- electronic, mechanical, or other judgments, for which the applicant is citizen nationals (subject to certain technological collection techniques or legally responsible. residency requirements). other forms of information technology. Financial needs are ordinary and These comments should be addressed to necessary expenses, and financial II. Appeals Cathy Quayle, Senior Loan Officer, obligations which are incurred, in An applicant or borrower may request USDA, Farm Loan Programs, STOP connection with the horse breeder an appeal or review of an adverse 0522, 1400 Independence Avenue, SW, business. decision made by the Agency in Washington DC 20250–0522. Comments Financial obligations are the debts accordance with 7 CFR parts 11 and 780 are assured of having effect if received owed by the horse breeder that are or its successor regulation. within 60 days of this notice. Comments directly related to the horse breeder III. Eligibility Requirements received after that date will be business. considered to the extent practicable. All Horse is any mammal in the genus Applicants must meet all of the comments received in response to this Equus, to include but not limited to ass, following requirements to be eligible for notice, including names and addresses, mule, pony and donkey. a Horse Breeder loan: will be a matter of public record. Copies Horse breeder is an individual or 1. Timely application. The applicant of the submission may be obtained from business entity who as of November 28, must submit a signed form FSA 410–1 Cathy Quayle by calling (202) 690–4018. 2001, derives more than 70 percent of completed to the best of the applicant’s their gross income from the horse ability to the Agency no later than I. Definitions Applicable to Horse breeding business during the shorter of: September 30, 2002. Breeder Loans 1. The 5-year period ending on 2. Horse breeder. The applicant must Additional security is property that January 1, 2001; or be a horse breeder as defined by this provides security in excess of the 2. the period the individual or notice. amount of security value equal to the business entity has been engaged in the 3. Qualifying loss. During the period loan amount. horse breeder business. beginning January 1 and ending October
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1 of any calendar year 2000, 2001 or qualified alien under applicable Federal needs of the applicant; or (b) the amount 2002: immigration laws. For an entity of loss suffered by the applicant as (a) 30 percent or more of the mares applicant, the majority of the entity measured by Section XI of this notice. owned by the applicant failed to must be owned by members meeting the 3. Outstanding loan balances from conceive, miscarried, aborted or citizenship test or other entities that are Agency Farm Loan Programs, direct or otherwise failed to produce a live domestically owned. guaranteed, will not affect the amount healthy foal; or 7. Legal capacity. The loan applicant an applicant is eligible to receive under (b) 30 percent or more of mares must be of legal age, mental capacity, this section. boarded on a farm owned, operated or and have the authority to enter into a leased by the applicant failed to legally binding agreement. An entity VI. Prohibited Use of Loan Funds conceive, miscarried, aborted or applicant, and all entity members who 1. Loan funds may not be used to pay otherwise failed to produce a live will execute the promissory note, must expenses incurred for lobbying or healthy foal. meet this requirement. 4. Financial need. The applicant is be 8. Federal debt. At loan closing, the related activities. unable to meet financial obligations, or applicant and anyone who will execute 2. Loan funds may not be used for any pay ordinary and necessary expenses the promissory note must not be purpose which contributes to excessive incurred in connection with the horse delinquent on any Federal debt, other erosion of highly-erodible land or to the breeder business. than a debt under the Internal Revenue conversion of wetlands to produce an 5. Test for credit. The applicant must Code of 1986, nor be a federal judgment agricultural commodity. be unable to obtain sufficient credit debtor on a non-tax debt. 3. Loan funds may not be used to elsewhere at reasonable rates and terms. 9. Unpaid judgement. At loan closing refinance consumer debt, such as home (a) To establish this, the applicant the applicant and anyone who will equity loans, automobile loans, or credit must obtain written denials of credit execute the promissory note must not card debt unless such debt is directly from legally organized commercial have any outstanding unpaid attributable to the horse breeder lending institutions within reasonable judgements obtained by the United business operation. proximity of the applicant that specify States in any court. 10. False information. The applicant, 4. Loan funds may not be used to pay the reasons for the denial as follows: Federal judgments. (1) In the case of a loan request of in past or present dealings with the $300,000 or more, two written denials of Agency, must not have knowingly VII. Loans to Agency Employees credit are required. provided the Agency with false • One of these lenders must be the information. Loans may be made to Agency applicant’s normal lender. 11. Credit history. The individual or employees otherwise qualified for the • Both lenders must typically make business entity applicant and all entity loans. horse breeder business loans. members must have acceptable credit VIII. Federal Equal Credit Opportunity (2) In the case of a loan request of less history demonstrated by debt Act (ECOA) than $300,000, one written denial of repayment. A history of failure to repay credit is required. past debts as they came due (including The Agency must comply with the • The applicant’s normal lender will debts to the Internal Revenue Service) provisions of ECOA and the be contacted unless the lender has when the ability to repay was within implementing regulations of the Federal already denied a request to continue their control will demonstrate Reserve System published in 12 CFR with the applicant or extend additional unacceptable credit history. part 202. 12. Repayment. The applicant must credit. IX. Environmental Compliance • The applicant may contact another submit a feasible plan as defined in this lender that makes horse breeder notice. 1. The environmental and historic business loans. IV. Loan Uses preservation requirements contained in (3) In the case of a loan request of 7 CFR part 1940, subpart G or its $100,000 or less, the Agency may waive Loan funds only may be used to: 1. Pay ordinary and necessary successor regulation must be met prior the requirement for obtaining a written expenses for the horse breeding to approval of any loan. denial of credit if the Agency business. 2. In order to minimize the financial determines that requiring a written 2. Replace mares and foals lost or risk associated with contamination of denial would pose an undue burden on disabled due to MRLS. real property from hazardous waste and the applicant and based on the 3. Purchase or lease additional other environmental concerns, the applicant’s circumstances credit is not existing pasture to replace pasture Agency will complete an environmental likely to be available. where a veterinarian or other recognized risk evaluation. (b) Notwithstanding the applicant’s expert has determined the potential for submission of the required written (a) The Agency will not accept as MRLS exists. security any real estate which has denial of credit, the Agency may contact 4. Pay or refinance financial other commercial lending institutions significant environmental risks, such as, obligations as defined by this notice, but not limited to the presence of within reasonable proximity of the provided the applicant can demonstrate applicant and make an independent known or suspected underground a need to do so. storage tanks or hazardous waste. determination of the applicant’s ability 5. Pay loan closing costs. to obtain credit elsewhere. (b) If the real estate offered as security (c) When the applicant is an entity, all V. Limitations contains significant environmental individuals, members, stockholders, and 1. The maximum cumulative loan risks, the Agency will provide the partners must meet test for credit amount any individual or business applicant with the option of properly requirements. entity may receive under this notice is correcting or removing the risk, at the 6. Citizenship. The applicant must be limited to $500,000. applicant’s expense or offering other a citizen of the United States, United 2. The amount of the loan is further non-contaminated property as security States non-citizen national, or a limited to the lesser of; (a) the financial for the loan.
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X. Other Federal, State, and Local determined by subtracting all cash 6. Projected production, income and Requirements business expenses and proceeds from expenses, and loan repayment plan, Horse Breeder loan borrowers are sales of weanlings, yearlings, and 2 year which may be submitted on Form FSA required to comply with all applicable: old offspring, from all business income 431–2 or other similar plan of operation 1. Federal, State, or local laws; reported on Schedule F and other acceptable to the Agency. 2. Regulatory commission rules; and related schedules of the applicant’s 7. Verification of off-farm 3. Regulations which are presently in Federal income tax return. Any employment, and other non-farm existence, or which may be later depreciation shown on Schedule F is income, if any. This will be required adopted including, but not limited to, not a cash expense and must not be only when the applicant is relying on those governing the following: included as an expense in loss off-farm income for a feasible plan. (a) Borrowing money, pledging calculations. 8. A legal description of farm, real security, and raising revenues for (c) The average annual net income for estate property securing the loan and a repayment of debt; the horse breeder business shall be copy of any lease, contract, option or (b) Accounting and financial calculated by adding the applicant’s agreement, or a written statement setting reporting; and horse breeder business annual net forth terms or conditions of any (c) Protection of the environment. income from the previous 3 non-loss agreement entered into by the applicant 4. Any construction financed by the years and dividing by 3. which may be pertinent to consideration Agency must comply with applicable 4. The results of the calculations from of the application. Federal, State, local, and industry paragraphs 2 and 3 of this section shall 9. A written certification from a building standards. be added together to determine the total licensed veterinarian, see Exhibit 1 amount of loss the applicant has sample, stating the number of mares: XI. Loss Calculations suffered as a result of MRLS. (a) Owned or boarded that were bred. 1. (a) The applicant’s Federal income (b) That failed to conceive or tax and business records will the XII. Complete Loan Application otherwise produce a live healthy foal. primary source of financial information An Agency application Form FSA 10. A credit report fee of $28.00 for for the loss calculation. Sales, receipts, 410–1, completed to the best of the individual applicants, $34.00 for joint invoices, or other official sale records applicant’s ability and submitted on or applicants and $40.00 for commercial will document the sales price of before September 30, 2002, will meet business applicants. individual animals as referenced in the application deadline. However, a 11. Any other documents requested paragraph (2) of this section. loan decision will not be made until a by the Agency and needed to process (b) If the applicant does not have 3 complete application is received in the application. complete years of business records, the accordance with this section. All forms XIII. Interest Rate Agency will obtain the most reliable and listed are available at any Agency office. reasonable information available from The Agency will not consider any Loans closed in accordance with this sources such as the Cooperative application that is not complete as of notice will be charged interest at the Extension Service, universities, and June 30, 2003. A complete loan rate established for Emergency loans in breed associations to document application includes all of the following 7 CFR part 764. Current rates are production and expenses for those years items: available at any Agency office. for which the applicant does not have 1. A completed form FSA 410–1. XIV. Terms a complete year of business records. To 2. If the applicant is a business entity, the extent such additional information all legal documents evidencing the 1. Repayment period. The Agency is unavailable, the Agency will use the organization and any state recognition schedules repayment of Horse Breeder applicant’s available business records to of the entity such as articles of loans based on the useful life of the loan make realistic income and expense incorporation or partnership security and the applicant’s repayment calculations. agreements. The application must ability, but not to exceed 20 years. 2. To determine the value of foals lost include the following information for Loans secured only by collateral other or disabled as a result of MRLS: each entity member: than real estate shall not exceed 7 years. (a) The average sales price of horses (a) Name. If necessary to improve the repayment sold by the applicant will be determined (b) Address. ability of the borrower and real estate by adding the total proceeds from the (c) Social Security number, or IRS tax security is available, the term of the loan sales of horses including only: ID number for a member that is a may be extended up to a total length not weanlings, yearlings and 2-year old business entity. to exceed 20 years from the date of the offspring for the previous 3 non-loss (d) Percent ownership interest in the promissory note. Balloon installments years, and dividing by the number of entity. are prohibited. Balloon installments are horses sold during those 3 years. (e) In the case of a member that is final installments that exceed twice the (b) The average sales price will be itself a business entity, legal documents amount of the regular amortized multiplied by the number of mares evidencing the organization and any installment. shown on the veterinarian certification State recognition of the entity. 2. Minimum payment requirement. that failed to conceive or produce a live 3. Verification that the applicant or The repayment schedule must include healthy foal due to MRLS. individual members of an entity at least one payment every year. 3. To determine the value of all other applicant cannot obtain credit Payments must be no less than the losses: elsewhere including a loan guarantee by interest accrued on the principal (a) Calculate the average annual net a State or other Federal agency. balance at the time the installment is to income for the horse breeder business 4. Income tax and business records for be paid and may not result in a for the previous 3 non-loss years, and the lesser of the previous 3 years or the prohibited balloon installment. subtract the horse breeder business net number of years in business. income for the loss year. 5. A current balance sheet that was XV. Security Requirements (b) The annual net income for the prepared within 90 days of the date of 1. The applicant shall have sufficient horse breeder business will be application. equity to provide adequate security for
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the loan. In addition, the applicant shall applicant has been in the horse breeder complete application. Loan approval is provide additional security, if available, business. subject to the availability of Emergency not to exceed 150 percent of the loan (4) The applicant has given the loan funds. amount. Agency an assignment on any USDA XX. Loan Closing 2. Loans shall be secured by collateral program payments, unencumbered that can be adequately described in installment sales proceeds, or other The loan approval official, or security instruments. contractually based income. designee, shall close the loan according 3. The Agency will take the best lien to the following. XVI. Appraisals and Valuation obtainable on the following security, if 1. The applicant must meet all Requirements available, as necessary to protect the conditions specified in this notice prior Government’s interest. The security will Appraisals generally are required for to loan closing. be taken in the order of priority as real estate and chattel property used to 2. There must have been no follows: secure a Horse Breeder loan. Real estate significant changes in the plan of (a) Real Estate. A survey is not appraisals, however, are not required operation or the applicant’s financial required if the property is adequately when the amount of the loan does not condition since the loan was approved described. The applicant is responsible exceed $50,000 and the loan approval and less than 90 days has passed since for obtaining and paying any costs for official clearly documents that the financial information has been updated. documentation necessary to properly estimated value of security, less existing 3. The applicant shall execute all loan identify the security property. liens, exceeds the loan amount. Real instruments and legal documents (b) Chattels and crops, other than estate and chattel appraisals shall be required by the Agency to evidence the horses. Chattels consist of equipment or completed in accordance with 7 CFR debt, perfect the required security livestock, other than horses. Equipment 761.7. position in property, and protect the must be identified by manufacturer, XVII. Taking Indian Trust Lands as Government’s interests in accordance model, year, and serial number, where with applicable State and Federal laws. available. Security 4. Horse Breeder loans with security (c) Other assets owned by the The Agency may take a lien on Indian other than real estate shall be closed in applicant. Other assets owned by the Trust lands as security provided that the accordance with 7 CFR part 1941, applicant such as certificates of deposit requirements of 7 CFR part 1943, subpart B, or its successor regulation. may be taken as security. The applicant subpart A or its successor regulations 5. Horse Breeder loans secured by real shall provide satisfactory are satisfied. documentation as to the value of the estate shall be closed in accordance assets and their availability for Agency XVIII. Insurance for Loan Security with 7 CFR part 1927, subpart B, or its lien perfection. An applicant must obtain insurance, successor regulation. Loans with real (d) Third party pledges of property consistent with this section, equal to the estate security will be closed by a not owned by the applicant. Interests in lesser of the value of the security at the closing agent, selected by and paid for property not owned by the applicant time of loan closing, or the principal of by the applicant. (such as, but not limited to: real estate, the loan. (a) For loans over $25,000, title leases that provide a mortgageable 1. Hazard insurance. All security clearance is required when real estate is value, water rights, easements, mineral (except growing crops) must be covered taken as security. rights, and royalties) can be offered as by hazard insurance if it is readily (b) For loans of $25,000 or less, when security for the loan. available and economically feasible. real estate is taken as security, a (e) Horses. Horses must be identified 2. Flood or mudslide insurance. Real certification of ownership in real estate by color, sex, and distinguishing marks estate security located in a special Flood is required. Certification of ownership (i.e., socks, blaze, registration numbers). Hazard Area as determined by the may be in the form of an affidavit which (f) Repayment ability. The applicant’s Federal Emergency Management is signed by the applicant, naming the repayment ability may be accepted as Agency, must be covered by flood or record owner of the real estate in adequate security provided that the mudslide insurance. question and listing the balances due on applicant can meet all of the following 3. Crop insurance. Growing crops all known debts against the real estate. requirements. used to provide adequate security must Whenever the loan approval official is (1) The applicant has pledged as be covered by crop insurance if such uncertain of the record owner or debts security for the loan all available insurance is readily available and against the real estate security, a title personal and business collateral. economically feasible. search is required. (2) The feasible plan, approved by the 4. Mortality insurance. All horses XXI. Fees Agency, indicates the loan will be used as security for the loan must be repaid based upon the applicant’s covered by mortality insurance if it is The applicant will pay all loan production and income history and readily available and economically closing fees including but not limited to addresses applicable income risks to the feasible. fees for title clearance, recording any extent practicable through the use of 5. Indemnities. An applicant must: legal instruments determined to be breeder’s insurance, mortality (a) List the Agency as loss payee for necessary, and all notary, lien search, insurance, or similar risk management the insurance indemnity payment or as attorney fees and similar fees incident to practices. a beneficiary of a mortgagee loss payable loan transactions. No fees will be (3) The applicant has had positive net clause; and assessed for work performed by Agency income from the horse breeder business (b) In the case of crop and mortality employees. in at least 3 of the past 5 years. If the insurance, execute an assignment of XXII. Reporting applicant has been in the horse breeder indemnity in favor of the Agency. business for fewer than 5 years, the The borrower must notify the Agency applicant must have had positive net XIX. Funding Applications of any adverse actions related to the income from the horse breeder business Loan requests will be funded based on loan, including but not limited to, in at least 50 percent of the years the the date the Agency receives the anticipated default on the loan.
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XXIII. Loan Servicing DEPARTMENT OF AGRICULTURE Development Branch, Child Nutrition If any installment is not paid Division, Food and Nutrition Service, Food and Nutrition Service according to the terms of the loan USDA, Alexandria, Virginia, 22302, (703) 305–2620. agreement, the loan is not fully satisfied Child and Adult Care Food Program: at expiration of the loan agreement, or National Average Payment Rates, Day SUPPLEMENTARY INFORMATION: the borrower is in default on any term Care Home Food Service Payment of the loan agreement or security Rates, and Administrative Definitions instruments, the loan will be serviced in Reimbursement Rates for Sponsoring accordance with 7 CFR 1951.468 or its The terms used in this notice shall Organizations of Day Care Homes for have the meanings ascribed to them in successor regulation, during the term of the Period July 1, 2002–June 30, 2003 the loan. the regulations governing the CACFP (7 CFR part 226). Signed at Washington, DC, on June 28, AGENCY: Food and Nutrition Service, 2002. USDA. Background James R. Little, ACTION: Notice. Administrator, Farm Service Agency. Pursuant to sections 4, 11 and 17 of SUMMARY: This notice announces the the Richard B. Russell National School Exhibit 1.—Sample Veterinary Certification annual adjustments to: The national Lunch Act (NSLA) (42 U.S.C. 1753, Woodside Veterinary Clinic, P.O. Box 29, average payment rates for meals and 1759a and 1766), section 4 of the Child Alexandria, Virginia 45207 supplements served in child care Nutrition Act of 1966 (CNA) (42 U.S.C. centers, outside-school-hours care William A. Doctor, D.V.M. 1773) and §§ 226.4, 226.12 and 226.13 centers, at-risk afterschool care centers, Tanya J. Thoms, D.V.M. of the regulations governing the CACFP and adult day care centers; the food Equine and Companion Animals (7 CFR part 226), notice is hereby given Medicine and Surgery service payment rates for meals and of the new payment rates for institutions Telephone: 303–233–4455 supplements served in day care homes; FAX 303–233–4456 and the administrative reimbursement participating in CACFP. These rates Name of Client: Circle K Farms. rates for sponsoring organizations of day shall be in effect during the period July Address of Client: 123 Shade Tree Lane, care homes, to reflect changes in the 1, 2002 through June 30, 2003. As Alexandria, Virginia 45207. Consumer Price Index. Further provided for under the NSLA and the Period covered by this Certification: 2000 adjustments are made to these rates to CNA, all rates in the CACFP must be and 2001 Breeding and Foal Seasons. reflect the higher costs of providing revised annually on July 1 to reflect The number of mares owned that were meals in the States of Alaska and changes in the Consumer Price Index bred lll (CPI) for the most recent 12-month The number of mares boarded that were Hawaii. The adjustments contained in bred lll this notice are made on an annual basis period. In accordance with this As a result of MRLS: each July, as required by the statutes mandate, the Department last published The number of mares that failed to and regulations governing the Child and the adjusted national average payment conceive or produce a live healthy Adult Care Food Program (CACFP). rates for centers, the food service foal.lll EFFECTIVE DATE: July 1, 2002. payment rates for day care homes, and lllllllllllllllllllll FOR FURTHER INFORMATION CONTACT: the administrative reimbursement rates Signature of Veterinarian Melissa Rothstein, Section Chief, Child for sponsors of day care homes on June [FR Doc. 02–16827 Filed 7–3–02; 8:45 am] and Adult Care and Summer Programs 27, 2001, at 66 FR 34144 (for the period BILLING CODE 3410–05–P Section, Policy and Program July 1, 2001–June 30, 2002).
CHILD AND ADULT CARE FOOD PROGRAM (CACFP) [Per meal rates in whole or fractions of U.S. dollars] [Effective from July 1, 2002–June 30, 2003]
Centers Breakfast Lunch and Supplement supper 1
Contiguous States: Paid ...... 22 .20 .05 Reduced price ...... 87 1.74 .29 Free ...... 1.17 2.14 .58 Alaska: Paid ...... 32 .33 .08 Reduced price ...... 1.57 3.07 .47 Free ...... 1.87 3.47 .95 Hawaii: Paid ...... 24 .24 .06 Reduced price ...... 1.07 2.10 .34 Free ...... 1.37 2.50 .68 1 These rates do not include the value of commodities (or cash-in-lieu of commodities) which institutions receive as additional assistance for each lunch or supper served to participants under the program. A notice announcing the value of commodities and cash-in-lieu of commodities is published separately in the Federal Register.
Breakfast Lunch and supper Supplement Day care homes Tier I Tier II Tier I Tier II Tier I Tier II
Contiguous States ...... 98 .37 1.80 1.09 .53 .14
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Breakfast Lunch and supper Supplement Day care homes Tier I Tier II Tier I Tier II Tier I Tier II
Alaska ...... 1.55 .56 2.93 1.76 .87 .24 Hawaii ...... 1.13 .42 2.11 1.27 .63 .17
ADMINISTRATIVE REIMBURSEMENT RATES FOR SPONSORING ORGANIZATIONS OF DAY CARE HOMES [Per home/per month rates in U.S. dollars]
Each Initial 50 Next 150 Next 800 additional
Contiguous States ...... 84 64 50 44 Alaska ...... 136 104 81 71 Hawaii ...... 98 75 59 52
The changes in the national average Authority: Sec. 4(b)(2), 11a, 17(c) and Number 86, pages 24132–24134). The payment rates for centers reflect a 2.59 17(f)(3)(B) of the Richard B. Russell National Notice announced that a draft percent increase during the 12-month School Lunch Act, as amended (42 U.S.C. environmental impact statement would period, May 2001 to May 2002, (from § 1753(b)(2), 1759a, 1766(f)(3)(B)) and sec. be available for review in July 1999, and 173.1 in May 2001 to 177.6 in May 4(b)(1)(B) of the Child Nutrition Act of 1966, as amended (42 U.S.C. 1773(b)(1)(B)). a final environmental impact statement 2002) in the food away from home series would be available for review in of the CPI for All Urban Consumers. Dated: June 27, 2002. September 1999. A Revised Notice of The changes in the food service Roberto Salazar, Intent was published in the Federal payment rates for day care homes reflect Administrator. Register on March 8, 2000 (Volume 65, a 1.56 percent increase during the 12- [FR Doc. 02–16906 Filed 7–3–02; 8:45 am] Number 46, page 12202). The revised month period, May 2001 to May 2002, BILLING CODE 3410–30–M Notice announced that a draft (from 172.8 in May 2001 to 175.5 in environmental impact statement was May 2002) in the food at home series of now expected to be available for public the CPI for All Urban Consumers. DEPARTMENT OF AGRICULTURE review in July 2000 and a final The changes in the administrative environmental impact statement should reimbursement rates for sponsoring Forest Service be available for review by October 2000. organizations of day care homes reflect This Notice revises the expected date of Southwestern Region; Authorization of a 1.18 percent increase during the 12- availability for public review of a draft Livestock Grazing Activities on the month period, May 2001 to May 2002, environmental impact statement to June Sacramento Grazing Allotment, (from 177.7 in May 2001 to 179.8 in 2002, a final environmental impact Sacramento Ranger District, Lincoln May 2002 in the series for all items of statement should be available for review National Forest, Otero County, NM the CPI for All Urban Consumers, in October 2000. published by the Bureau of Labor AGENCY: Forest Service, USDA. FOR FURTHER INFORMATION CONTACT: Rick Statistics of the Department of Labor. ACTION: Revised notice of intent to Newmon or Mark Cadwallader, Lincoln The total amount of payments National Forest, Sacramento Ranger available to each State agency for prepare an environmental impact statement. District, P.O. Box 288, Cloudcroft, New distribution to institutions participating Mexico 88317, (505) 682–2551. in the program is based on the rates Authority: 16 U.S.C. 472,551. contained in this notice. Dated: April 17, 2002. This action is not a rule as defined by SUMMARY: The Forest Service will Jose M. Martinez, the Regulatory Flexibility Act (5 U.S.C. prepare an environmental impact Forest Supervisor, Lincoln National Forest. 601–612) and thus is exempt from the statement on a proposal to authorize [FR Doc. 02–16878 Filed 7–3–02; 8:45 am] provisions of that Act. This notice has livestock grazing activities on the BILLING CODE 3410–11–M been determined to be exempt under Sacramento Grazing Allotment. The Executive Order 12866. project area encompasses over 111,000 This program is listed in the Catalog acres of National Forest lands on the DEPARTMENT OF AGRICULTURE of Federal Domestic Assistance under Sacramento Ranger District of the No. 10.558 and is subject to the Lincoln National Forest. The Forest Service provisions of Executive Order 12372, Sacramento Grazing Allotment which requires intergovernmental comprises approximately 25% of the Glady Fork Environmental Impact consultation with State and local ranger district. The project has Statement, Monongahela National officials (See 7 CFR Part 3015, Subpart generated controversy on three main Forest, Randolph and Tucker Counties, V, and final rule related notice points; effects to threatened and WV published at 48 FR 29114, June 24, endangered animal and plant species, AGENCY: Forest Service, USDA. 1983). concern for degraded riparian areas, and ACTION: Notice of intent to prepare an This notice imposes no new reporting forage competition between wildlife and environmental impact statement. or recordkeeping provisions that are livestock. subject to Office of Management and The Notice of Intent to prepare an SUMMARY: The USDA Forest Service will Budget review in accordance with the environmental impact statement was prepare an environmental impact Paperwork Reduction Act of 1995 (44 first published in the Federal Register statement for timber harvest, stream U.S.C. 3501–3518). on Friday, May 5, 1999 (Volume 64, restoration, wildlife enhancement, and
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road management activities in the Glady 793 acres of conventional ground-based which will be used to develop Fork watershed of the Monongahela skidding. Post-harvest treatments alternatives to the proposed action. National Forest. This notice provides a proposed include 609 acres of herbicide Comments should be as specific as description of the proposed action, use, site preparation, and fencing, and possible. In order for the Forest Service displays the estimated dates for filing 51 acres of planting. to consider research identified in the EIS, provides information Road management proposed in the comments, the commentor must identify concerning public participation, and Glady Fork project includes 2.0 miles of why the research is pertinent to the provides the names and addresses of the new road construction, 25.5 miles of Glady Fork project and must provide a responsible agency official and road maintenance, 3.3 miles of road to copy of the research papers. individuals who can provide additional be put in storage, and 10.3 miles of road Early Notice of Importance of Public information. to be abandoned. Participation in Subsequent DATES: We need to receive your Planting or seeding of willow, aspen, Environmental Review: A draft comments on this Notice of Intent in alder, or other native trees or shrubs environmental impact statement will be writing 45 days after this notice is along Daniels Creek is proposed to prepared for comment. The comment published in the Federal Register. The provide shade and future large woody period on the draft environmental draft environmental impact statement is debris. In addition, trees would be impact statement will be 45 days from expected February 2003 and the final placed in Daniels Creek, McCray Run, the date the Environmental Protection environmental impact statement is and Nichols Lane Run to help channel Agency publishes the notice of expected May 2003. stability and to provide stream availability in the Federal Register. The ADDRESSES: Send written comments to: structure. Forest Service believes, at this early Michele Jones, Forest NEPA Team The proposed action includes one stage, it is important to give reviewers Leader, Monongahela National Forest, stand that would be converted to a notice of several court rulings related to 200 Sycamore Street, Elkins, West savannah, approximately 10 acres in public participation in the Virginia 26241. Faxes should be sent to size. An estimated 56 acres of red environmental review process. First, (304) 636–1875. For further information, spruce release would occur to improve reviewers of draft environmental impact mail correspondence to the same habitat for wildlife species such as the statements must structure their address. endangered West Virginia northern participation in the environmental flying squirrel. Two wildlife openings, FOR FURTHER INFORMATION CONTACT: review of the proposal so that it is approximately 3 acres each, would be meaningful and alerts an agency to the Michele Jones, Forest NEPA Team developed to provide open, grassy Leader, Monongahela National Forest, reviewer’s position and contentions. habitat for species such as white-tailed Vermont Yankee Nuclear Power Corp. v. 200 Sycamore Street, Elkins, West deer, wild turkey, and black bear. Virginia 26241, or by calling (304) 636– NRDC, 435 U.S. 519, 553 (1978). Also, 1800. Responsible Official environmental objections that could be raised at the draft environmental impact SUPPLEMENTARY INFORMATION: The responsible official is Clyde N. statement stage but that are not raised Thompson, Monongahela National Purpose and Need for Action until after completion of the final Forest Supervisor, 200 Sycamore Street, environmental impact statement may be The purpose and need for action in Elkins, West Virginia 26241. the Glady Fork project area is to waived or dismissed by the courts. City increase forest health, to improve water Nature of Decision To Be Made of Angoon v. Hodel, 803 F.2d 1016, quality and fish habitat, to enhance The responsible official will make a 1022 (9th Cir. 1986) and Wisconsin wildlife habitat, and to provide forest determination in his decision whether Heritages, Inc. v. Harris, 490 F. Supp. products to the local community. the proposed action should proceed as 1334, 1338 (E.D. Wis. 1980). Because of proposed, as modified, or not at all. The these court rulings, it is very important Proposed Action decision will also include mitigation that those interested in this proposed The proposed activities all fall within measures to be implemented with the action participate by the close of the 45 Management Prescription 6.1 under the project and associated monitoring day comment period so that substantive Monongahela National Forest Land and requirements. The decision maker will comments and objections are made Resource Management Plan. The also determine whether or not an available to the Forest Service at a time primary purpose of Management amendment to the Monongahela when it can meaningfully consider them Prescription 6.1 is to manage for remote National Forest Land and Resource and respond to them in the final habitat species intolerant of disturbance. Management Plan is needed. environmental impact statement. To Secondary purposes are to manage for a assist the Forest Service in identifying semi-primitive non-motorized type of Scoping Process and considering issues and concerns on recreational environment, a mix of The scoping period last for 45 days the proposed action, comments on the forest products, and manage sites from the date this notice is published in draft environmental impact statement reverting from hardwood to conifer and the Federal Register. Written and oral should be as specific as possible. It is the intermingled high site hardwood comments from the public will be also helpful if comments refer to types. received through the postal service, via specific pages or chapters of the draft The proposed action includes an fax, or over the telephone. No public statement. Comments may also address estimated 797 acres of thinning, 689 meetings, open houses, or field trips are the adequacy of the draft environmental acres of crop tree release, 51 acres of planned at this time. impact statement or the merits of the clearcuts, 96 acres of shelterwood, 345 alternatives formulated and discussed in acres of two-age harvest, and 20 acres of Comment Requested the statement. Reviewers may wish to overstory removal. In total, This notice of intent initiates the refer to the Council on Environmental approximately 1,998 acres of scoping process which guides the Quality Regulations for implementing commercial timber harvest is proposed, development of the environmental the procedural provisions of the which would be logged by using impact statement. Comments will be National Environmental Policy Act at 40 helicopter yarding on 1,205 acres and used to identify significant issues, CFR 1503.3 in addressing these points.
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(Authority: 40 CFR 1501.7. and 1508.22; approval of the August 21, 2002 COMMITTEE FOR PURCHASE FROM Forest Service Handbook 1909.15, Section minutes, projects submitted for the new PEOPLE WHO ARE BLIND OR 21) fiscal year 2003, reports from SEVERELY DISABLED Dated: June 28, 2002. subcommittees and selection of projects Clyde N. Thompson, on the Modoc National Forest that meet Procurement List; Proposed Additions Forest Supervisor. the intent of Pub. L. 106–393. Time will and Deletions [FR Doc. 02–16816 Filed 7–3–02; 8:45 am] be set aside for public comments at the AGENCY: Committee for Purchase From BILLING CODE 3410–11–M beginning of the meeting. People Who Are Blind or Severely FOR FURTHER INFORMATION CONTACT: Dan Disabled. ACTION: Proposed additions to and DEPARTMENT OF AGRICULTURE Chisholm, Forest Supervisor and Designated Federal Officer, at (530) deletions from Procurement List. Forest Service 233–8700; or Public Affairs Officer SUMMARY: The Committee is proposing Nancy Gardner at (530) 233–8713. to add to the Procurement List products Notice of Resource Advisory and services to be furnished by Committee Meeting Dan Chisholm, Forest Supervisor. nonprofit agencies employing persons AGENCY: Modoc Resource Advisory who are blind or have other severe [FR Doc. 02–16810 Filed 7–3–02; 8:45 am] Committee, Alturas, California, USDA disabilities, and to delete products Forest Service. BILLING CODE 3410–11–M previously furnished by such agencies. ACTION: Notice of meeting. Comments Must Be Received on or Before: August 4, 2002. DEPARTMENT OF AGRICULTURE SUMMARY: Pursuant to the authorities in ADDRESSES: Committee for Purchase the Federal Advisory Committees Act From People Who Are Blind or Severely (Public Law 92–462) and under the Natural Resources Conservation Service Disabled, Jefferson Plaza 2, Suite 10800, Secure Rural Schools and Community 1421 Jefferson Davis Highway, Self-Determination Act of 2000 (Pub. L. Lower Clear Boggy Creek Watershed, Arlington, Virginia 22202–3259. 106–393) the Modoc National Forest’s Site 32B, Atoka County, Oklahoma FOR FURTHER INFORMATION CONTACT: Modoc Resource Advisory Committee Sheryl D. Kennerly, (703) 603–7740. will meet Wednesday, August 7th, 2002, AGENCY: Natural Resources SUPPLEMENTARY INFORMATION: This Wednesday, August 21st, 2002, and Conservation Service, USDA. notice is published pursuant to 41 U.S.C Wednesday, September 11th, 2002, in 47(a) (2) and 41 CFR 51–2.3. Its purpose Alturas, California for business ACTION: Notice of availability of record is to provide interested persons an meetings. The meetings are open to the of decision. opportunity to submit comments on the public. possible impact of the proposed actions. SUPPLEMENTARY INFORMATION: The SUMMARY: M. Darrel Dominick, business meeting August 7th begins at 5 responsible Federal official for projects Additions pm., at the Modoc National Forest administered under the provisions of If the Committee approves the Office, Conference Room, 800 West 12th Public Law 83–566, 16 U.S.C. 1001– proposed additions, the entities of the St., Alturas. Agenda topics will include 1008, in the State of Oklahoma, is Federal Government identified in this approval of July 10, 2002 minutes, hereby providing notification that a notice for each product or service will projects submitted for the new fiscal record of decision to proceed with the be required to procure the products and year 2003, reports from subcommittees installation of the Lower Clear Boggy services listed below from nonprofit and review and selection of projects that Creek Watershed, Site 32B project is agencies employing persons who are will improve the maintenance of available. Single copies of this record of blind or have other severe disabilities. existing infrastructure, implement decision may be obtained from M. I certify that the following action will stewardship objectives that enhance Darrel Dominick at the address shown not have a significant impact on a forest ecosystems, and restore and below. substantial number of small entities. improve health and water quality that The major factors considered for this meet the intent of Pub. L. 106–393. FOR FURTHER INFORMATION CONTACT: M. certification were: Time will also be set aside for public Darrel Dominick, State Conservationist, 1. If approved, the action will not comments at the beginning of the Natural Resources Conservation Service, result in any additional reporting, meeting. The business meeting August State Office, 100 USDA Suite 206, recordkeeping or other compliance 21st begins at 5 pm., at the Modoc Stillwater, Oklahoma, 74074–2655, requirements for small entities other National Forest Office, Conference telephone (405) 742–1227. than the small organizations that will Room, 800 West 12th St., Alturas. furnish the products and services to the Agenda topics will include approval of (This activity is listed in the Catalog of Government. the August 7, 2002 minutes, projects Federal Domestic Assistance under No. 2. If approved, the action will result submitted for the new fiscal year 2003, 10.904, Watershed Protection and Flood in authorizing small entities to furnish reports from subcommittees and Prevention, and is subject to the provisions the products and services to the selection of projects on the Modoc of Executive Order 12372, which requires government. National Forest that meet the intent of intergovernmental consultation with State 3. There are no known regulatory Pub. L. 106–393. Time will be set aside and local officials.) alternatives which would accomplish for public comments at the beginning of Dated: June 19, 2002. the objectives of the Javits-Wagner- the meeting. The business meeting O’Day Act (41 U.S.C. 46–48c) in September 11th begins at 5 pm., at the M. Darrel Dominick, connection with the products and Modoc National Forest Office, State Conservationist. services proposed for addition to the Conference Room 800 West 12th St., [FR Doc. 02–16876 Filed 7–3–02; 8:45 am] Procurement List. Comments on this Alturas. Agenda topics will include BILLING CODE 4310–16–M certification are invited. Commenters
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should identify the statement(s) 2. If approved, the action will result licensing issues, Dr. Paul Mele, Office of underlying the certification on which in authorizing small entities to furnish Research & Technology Assessment, they are providing additional the products to the Government. (301) 619–6664, both at telefax (301) information. 3. There are no known regulatory 619–5034. The following products and services alternatives which would accomplish SUPPLEMENTARY INFORMATION: As assay are proposed for addition to the objectives of the Javits-Wagner- for detecting, measuring, or monitoring Procurement List for production by the O’Day Act (41 U.S.C. 46–48c) in the activity of concentration of at least nonprofit agencies listed: connection with the products proposed two proteins that have similar or Products for deletion from the Procurement List. overlapping properties is disclosed. The The following products have been Product/NSN: Battery, Nonrechargeable/ assay comprises first determining the 6135–00–826–4798. (Remaining proposed for deletion from the sensitivity coefficients of the substrates Requirement for DSCR). Procurement List: for each of the proteins in which the NPA: Eastern Carolina Vocational Center, Products concentrations are to be determined. Inc., Greenville, North Carolina. Product/NSN: Harness Assembly/1660–00– This method may be used for detecting, Contract Activity: Defense Supply Center— measuring, or monitoring the activity Richmond, Richmond, Virginia. 066–2078. NPA: Human Technologies Corporation, and concentration of AChE, BChE, or Product/NSN: Battery, Nonrechargeable/ Utica, New York. both in a test sample which test sample 6135–00–900–2139. (Remaining Contract Activity: Defense Supply Center— Requirement for DSCR). may be whole and unprocessed blood or Richmond, Richmond, Virginia. NPA: Eastern Carolina Vocational Center, tissue. Also disclosed are methods of Inc., Greenville, North Carolina. Product/NSN: Insert, Foam, Laminated/ using the assay to detect a subject’s Contract Activity: Defense Supply Center— 8135–00–NSH–0002. exposure to an agent which affects Richmond, Richmond, Virginia. NPA: None currently authorized. cholinesterase, determine the efficacy or Product/NSN: Battery, Nonrechargeable/ Contract Activity: Bureau of the Mint, progress of a treatment, determine the 6135–00–985–7845. (Total Requirement Department of the Treasury, Washington, amount of protection provided against DC. for DSCR). exposure to an agent which affects NPA: Eastern Carolina Vocational Center, Sheryl D. Kennerly, Inc., Greenville, North Carolina. cholinesterase, or both, screen a subject Contract Activity: Defense Supply Center— Director, Information Management. for having a drug sensitivity or a Richmond, Richmond, Virginia. [FR Doc. 02–16843 Filed 7–3–02; 8:45 am] particular disease, detect a change in Product/NSN: Paper, Toilet Tissue, 48 Ct., 2- BILLING CODE 6353–01–P red blood cell count of a subject, ply/8540–00–NIB–0043. determine whether a candidate NPA: Outlook-Nebraska, Incorporated, compound affects cholinesterase. Also Fremont, Nebraska. DEPARTMENT OF DEFENSE disclosed are devices and kits for Contract Activity: Office Supplies & Paper detecting, measuring, or monitoring the Products Commodity Center, New York, Department of the Army activities and concentrations of AChE, New York. BChE, or both. Product/NSN: Board, Assembly, Jack, Availability for Non-Exclusive, Ground/2510–00–741–7585. Exclusive, or Partially Exclusive Luz D. Ortiz, NPA: Pennyroyal Regional MH–MR Board, Licensing of U.S. Patent Application Army Federal Register Liaison Officer. Inc., Hopkinsville, Kentucky. [FR Doc. 02–16884 Filed 7–3–02; 8:45 am] Contract Activity: Defense Supply Center— Concerning Assay for Detecting, Columbus, Columbus, Ohio. Measuring, and Monitoring the BILLING CODE 3710–08–M Activities and Concentrations of Services Proteins and Methods of Use Thereof Service Type/Location: Custodial Service/ DEPARTMENT OF DEFENSE Basewide, Schriever AFB, Colorado. AGENCY: Department of the Army, DOD. NPA: Professional Contract Services, Inc., ACTION: Notice. Department of the Army Austin, Texas. Contract Activity: USAF, 50 CONS/LGCZW, SUMMARY: In accordance with 37 CFR Availability for Non-Exclusive, Schriever AFB, Colorado. 404.6 and 404.7, announcement is made Exclusive, or Partially Exclusive Service Type/Location: Janitorial/Custodial/ of the availability for licensing of U.S. Licensing of U.S. Patent Application Naval Air Station, Buildings 180 and 349 Patent Application No. 09/848,370 Concerning Force Sensing Treadmill Whidbey Island, Oak Harbor, entitled ‘‘Assay for Detecting, Washington. AGENCY: Department of the Army, DOD. Measuring, and Monitoring the NPA: New Leaf, Inc., Oak Harbor, ACTION: Notice. Washington. Activities and Concentrations of Contract Activity: Naval Facilities Proteins and Methods of Use Thereof,’’ SUMMARY: In accordance with 37 CFR Engineering Command, Oak Harbor, filed May 4, 2001. Foreign rights are 404.6 and 404.7, announcement is made Washington. also available (PCT/US01/14444). The of the availability for licensing of U.S. Deletions United States Government, as Patent Application No. 60/368,807 represented by the Secretary of the entitled ‘‘Force Sensing Treadmill,’’ I certify that the following action will Army has rights in this invention. not have a significant impact on a filed March 21, 2002. The United States ADDRESSES: Commander, U.S. Army Government, as represented by the substantial number of small entities. Medical Research and Materiel The major factors considered for this Secretary of the Army has rights in this Command, ATTN: Command Judge certification were: invention. 1. If approved, the action will not Advocate, MCMR–JA, 504 Scott Street, ADDRESSES: Commander, U.S. Army result in any additional reporting, Fort Detrick, Frederick, MD 21702– Medical Research and Materiel recordkeeping or other compliance 5012. Command, ATTN: Command Judge requirements for small entities other FOR FURTHER INFORMATION CONTACT: For Advocate, MCMR–JA, 504 Scott Street, than the small organizations that will patent issues, Ms. Elizabeth Arwine, Fort Detrick, Frederick, MD 21702– furnish the products to the Government. Patent Attorney, (301) 619–7808. For 5012.
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FOR FURTHER INFORMATION CONTACT: For DEPARTMENT OF DEFENSE ladders. Potential siting and patent issues, Ms. Elizabeth Arwine, configuration depends on engineering Patent Attorney, (301) 619–7808. For Department of the Army design considerations. licensing issues, Dr. Paul Mele, Office of 2. Notch Dam to Passable Height Research & Technology Assessment, Corps of Engineers (301) 619–6664, both at telefax (301) This alternative concept would cut a Intent to Prepare a Draft Environmental 619–5034. notch out of the existing dam to a height Impact Statement/Environmental that adult fish can successfully pass. SUPPLEMENTARY INFORMATION: Used to Impact Report for a Proposed Accumulated sediment behind the dam study gait mechanics in multiple Daguerre Point Dam Fish Passage may be dredged or released downstream successive strides especially during Improvement Project naturally. movement at walking/marching speeds. AGENCY: Department of the Army, U.S. 3. Natural River Channel Bypass Luz D. Ortiz, Army Corps of Engineers, DoD. Around Dam ACTION: Notice of Intent. Army Federal Register Liaison Officer. This alternative concept would create [FR Doc. 02–16883 Filed 7–3–02; 8:45 am] SUMMARY: The U.S. Army Corps of a new river channel that bypasses the BILLING CODE 3710–08–M Engineers (USACE) and the California existing dam. The bypass channel Department of Water Resources (DWR) length and width would be determined are lead agencies preparing a joint Draft based on engineering design DEPARTMENT OF DEFENSE Environmental Impact Statement/ considerations. Daguerre Point Dam Environmental Impact Report (DEIS/ would remain in place. Department of the Army EIR), pursuant to the National 4. Dam Removal Availability for Non-Exclusive, Environmental Policy Act (NEPA) and This alternative concept would Exclusive, or Partially Exclusive the California Environmental Quality Act (CEQA), to evaluate the Daguerre remove Daguerre Point Dam. Licensing of U.S. Patent Application Point Dam Fish Passage Improvement Accumulated sediment behind the dam Concerning Ricin Vaccine and Project. The purpose of the project is to may be dredged or released downstream Methods of Making and Using Thereof improve fish passage at Daguerre Point naturally. The environmental review Dam. The project has a goal to improve will be conducted pursuant to NEPA AGENCY: Department of the Army, DoD. upstream and downstream fish passage and CEQA, the Endangered Species Act, ACTION: Notice. for native anadromous fish species at and other applicable laws, to analyze Daguerre Point Dam and contribute to potential environmental impacts of SUMMARY: In accordance with 37 CFR overall population recovery. Additional implementing each feasible alternative. 404.6 and 404.7, announcement is made objectives are to keep water interests The Daguerre Point Dam Preliminary of the availability for licensing of U.S. whole and not increase food risk. Fish Passage Improvement Study Patent Application No. 110/083.336 Stakeholder meetings have identified completed in 2001 by the USACE is the entitled ‘‘Ricin Vaccine and Methods of alternatives to consider during the starting point for this process. Making and Using Thereof,’’ filed preparation of the environmental Alternatives described in this report will be re-evaluated and updated to February 27, 2002. Foreign rights are document. reflect current conditions and also available (PCT/US02/05732). The DATES: Written comments will be knowledge. Public input on additional accepted no later than July 25, 2002. United States Government, as alternatives or combination of represented by the Secretary of the ADDRESSES: Submit written comments alternatives that should be considered Army has rights in this invention. to Ted Frink, Department of Water will be sought through the scoping Resources Fish Passage Improvement ADDRESSES: Commander, U.S. Army process. Program, P.O. Box 942836, Sacramento, Comments, including names and Medical Research and Materiel CA 94236–0001, phone (916) 651–9630, addresses of respondents, are typically Command, ATTN: Command Judge fax (916) 651–9607. Advocate MCMR–JA, 504 Scott Street, made available for public review. FOR FURTHER INFORMATION CONTACT: Fort Detrick, Frederick, MD 21702– Individual respondents may request Doug Grothe, U.S. Army Corps of 5012. their home addresses withheld from Engineers, Englebright/Martis Creek public disclosure. These requests would FOR FURTHER INFORMATION CONTACT: For Lakes, P.O. Box 6, Smartville, CA 95977, be honored to the extent allowable by patent issues, Ms. Elizabeth Arwine, phone (530) 639–2342, fax (530) 639– law. Requests to withhold your home Patent Attorney, (301) 619–7808. For 2175. address must be stated prominently at licensing issues, Dr. Paul Mele, Office of SUPPLEMENTARY INFORMATION: the beginning of your comment letter. Research & Technology Assessment, Preliminary resource issues that have All submissions from organizations or (301) 691–6664, both at telefax (301) been identified and will be evaluated in businesses, and from individuals 619–5034. the joint document include but are not identifying themselves as limited to fish passage, water supply, representatives or officials of SUPPLEMENTARY INFORMATION: Methods sediment fate, and biological resources. organizations or businesses, will be of immunizing against, treating, and In addition to No Action/No Project, made available to the public in its preventing ricin intoxication are four alternative concepts are being entirety. A public scoping meeting for disclosed. considered. the DEIS/EIR was held on June 27, 2002 Luz D. Oritz, from 6:30 to 8:30 p.m., at Yuba-Sutter 1. State-of-the-Art Fish Ladder(s) Chamber of Commerce (meeting room), Army Federal Register Liaison Officer. This alternative concept would 429 10th Street, Marysville, CA 95901. [FR Doc. 02–16885 Filed 7–2–02; 8:45 am] replace the two existing fish ladders (See Dates and Addresses above for BILLING CODE 3710–08–M with either one or two state-of-the-art more information.)
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Availability of the DEIS/EIR: The Act (NEPA), the Corps is requiring the and thereby reducing environmental DEIS/EIR is estimated to be available in preparation of an Environmental Impact impacts of increased container terminal early 2003. Statement (EIS) prior to consideration of operations in the West Basin area. The any permit action. The Corps may proposed improvement projects involve Luz D. Ortiz, ultimately make a determination to dredge and fill operations, new wharf Army Federal Register Liaison Officer. permit or deny the above project or construction, renovation of existing [FR Doc. 02–16882 Filed 7–3–02; 8:45 am] permit or deny modified versions of the wharfs coupled with terminal expansion BILLING CODE 3710–EZ–M above project. on adjacent areas of existing land, and Pursuant to the California improvement of transportation Environmental Quality Act (CEQA), the infrastructure. DEPARTMENT OF DEFENSE Port will serve as Lead Agency for the Optimization of terminals and preparation of a subsequent Department of the Army infrastructure in the West Basin was Environmental Impact Report (EIR) for initially evaluated in the West Basin its consideration of development Corps of Engineers Transportation Improvements Program approvals within its jurisdiction. The Environmental Impact Report (WBTIP Intent to Prepare a Draft Environmental Corps and the Port have agreed to EIR, LAHD 1997a). The 1997 EIR and Impact Statement/Subsequent jointly prepare a Draft EIS/SEIR in order subsequent CEQA and NEPA Environmental Impact Report for a to optimize efficiency and avoid assessments have been used to certify Permit Application for the Proposed duplication. The Draft EIS/SEIR is and approve many project elements in West Basin Marine Terminal intended to be sufficient in scope to the West Basin. Since the certification of Improvement Projects in the Port of address both the Federal and the state the 1997 Program EIR many project Los Angeles, Los Angeles County, CA and local requirements and elements have been completed and environmental issues concerning the others are planned. AGENCY: Department of the Army, U.S. proposed activities and permit Key objectives of the new West Basin Army Corps of Engineers, DOD. approvals. EIS/SEIR identified in this notice of ACTION: intent will be to: (1) Establish an Notice of intent. DATES: A public scoping meeting for the Draft EIS/SEIR will be held at the Port updated baseline of current Port SUMMARY: The U.S. Army Corps of operations and environmental of Los Angeles on July 16, 2002, at 6:30 Engineers (Corps) Los Angeles District is conditions with the West Basin and (2) P.M. Written comments will be received considering future applications for assess potential environmental effects of until August 5, 2002. Section 404 and Section 10 permits to implementing currently proposed conduct dredge and fill activities ADDRESSES: Copies of comments and projects within this part of the Port of associated with a continuing program of questions regarding scoping of the Draft Los Angeles. A key component of this waterside, marine terminal, and EIS/SEIR may be addressed to: U.S. new EIS/SEIR will be to update the transportation improvement projects in Army Corps of Engineers, Los Angeles cargo-handling capacity of the West the West Basin area of the Port of Los District, Regulatory Branch. ATTN: File Basin container terminals and update Angeles. Some of the project elements Number 2002–01070–AOA, P.O. Box environmental impacts of ship, truck, are completed and others are previously 532711, Los Angeles, CA 90053–2325. and rail traffic associated with proposed approved actions by the Port of Los Copies should also be sent to Dr. Ralph project elements. Angeles (Port) and the Corps, including Apply, Director of Environmental the Channel Deepening Project (Corps/ Management, Port of Los Angels, 425 S. 2. Proposed Action Port 2000) that will dredge all Palos Verdes St., San Pedro, CA 90731. Construction of the proposed project navigational channels in the West Basin FOR FURTHER INFORMATION CONTACT: would require dredging approximately to ¥53 feet and construct 43 acres of Phone messages or questions can be 1,000,000 cubic yards of material if all new landfill in the Southwest Slip. directed to Dr. Aaron O. Allen: (805) project elements are implemented. Major project elements to be covered in 585–2148. Placement of sediment within the West the Draft Environmental Impact SUPPLEMENTARY INFORMATION: Basin to construct additional landfill in Statement/Subsequent Environmental the Southwest slip would require Impact Statement/Subsequent 1. Project Site and Background approximately 5,000,000 cubic yard of Environmental Impact Report (EIS/ Information material and result in the permanent SEIR) include: Dredging, wharf The proposed project is located in the loss of 32 acres of open-water habitat. renovation and new wharf construction, northwestern portion of the Port of Los The placement of material generated by to match the approved ¥53 foot Angeles, adjacent to the Wilmington the federal channel deepening project in channel depths construction of new and San Pedro Districts of the City of the Southwest slip to meet this need has landfill, and potential channel Los Angeles, CA. The proposed dredge been reviewed in terms of dredge realignment. Landside developments activities would take place at various disposal options in the Port of Los will include expansion, redevelopment berths throughout the West Basin Angeles Channel Deepening Project and construction of marine terminal portion of the Port of Los Angeles, SEIS/SEIR (2000). The potential channel facilities, and transportation including the Berth 100–102 area, the widening between Berths 121 to 126 infrastructure improvements including a Berth 118–131 area, and the Berth 136– would create an additional 6 acres of grade separation a bridge structure, an 147 area. Dredging would also be open-water habitat and the potential fill intermodal rail facility and potential required if the navigation channel at between Berths 131 to 136 would realignment of road and railways. Berths 121–127 was to be widened. remove 13 acres of open-water habitat. The primary Federal concern is the Major areas of fill include the Southwest Additional material would originate dredging and discharging of materials Slip and possibly the slip at Berths 132– from sources outside of the West Basin within waters of the United States and 134. The proposed improvement such as the Pier 400 storage area. In potential impacts on the human projects represent a continuation of a addition to project elements that may environment. Therefore, in accordance long-term, ongoing process of arise from the public scoping process with the National Environmental Policy optimizing cargo handling efficiencies will also be evaluated in the West Basin
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Marine Terminal Improvement Projects 3. Issues 6. Availability of the Draft SEIR/EIS EIS/SEIR, the proposed improvement There are several potential The Draft SEIR/EIS is expected to be projects include the following elements: environmental issues that will be published and circulated in the fall of (a) Berth 100–102 area Phase II and III addressed in the EIS/SEIR. Additional 2002 and a public hearing will be held projects. issues may be identified during the after the publication of the Draft EIS/ (1) Construction and operation of a SEIR. second 1,300 foot long wharf. scoping process. Issues initially (2) Construct and operate container identified as potentially significant Luz D. Ortiz, terminal backlands, buildings, facilities include: Army Federal Register Liaison Officer. (a) Land use and planning impacts, and infrastructure on the 43 acres [FR Doc. 02–16886 Filed 7–3–02; 8:45 am] including creation of new landfill created under Channel Deepening BILLING CODE 3710–KF–M Project. requiring amendment of the Port Master (3) Construct a bridge to the Berth Plan and approval by the California 118–131 area across the Southwest Slip. Coastal Commission. DEPARTMENT OF DEFENSE (4) Potential realignment of the Front (b) Geological issues including Street road and railways around Knoll dredging and stabilization of fill areas in Department of the Navy Hill. an area of known seismic activity. (5) Consolidation of adjacent parcels (c) Impacts to water quality. Meeting of the U.S. Naval Academy at Berth 99, from the Front Street (d) Potential impacts to marine Board of Visitors realignment, and the former Todd biological resources and endangered AGENCY: Department of the Navy, DoD. Shipyard parking lot for container species of birds. ACTION: Notice of partially closed terminal operators. (e) Impacts to air quality. meeting. (6) Creation of up to 32 acres of new (f) Impacts to traffic, including marine landfill in the adjacent Southwest Slip navigation and ground transportation. SUMMARY: The U.S. Naval Academy for construction and operation of (g) Potential for noise impacts. Board of Visitors will meet to make such terminal backlands and infrastructure. (h) Impacts to public utilities and inquiry as the Board shall deem (b) Improvements to the Berth 118– services. necessary into the state of morale and 131 area. (i) Potential impacts to aesthetic discipline, the curriculum, instruction, (1) Construction and upgrades of up resources including increased light and physical equipment, fiscal affairs, and to 2,800 feet of new and reconstructed glare. academic methods of the Naval wharves to match the planned ¥53 foot (j) Potential impacts on public health Academy. During this meeting inquiries channel depths. and safety. will relate to the internal personnel (2) Wharf improvements, including (k) Potential impacts to recreation. rules and practices of the Academy, may upgrade to 100-foot gauge crane rail. involve on-going criminal (l) Cumulative impacts. (3) Construction of new facilities and investigations, and include discussions buildings. 4. Alternatives of personal information the disclosure (4) Redevelopment of the 20-acre of which would constitute a clearly Several alternatives are being marine oil terminal at Berths 118–129 to unwarranted invasion of personal considered for the proposed container terminal operations. privacy. The executive session of this improvement projects. These (5) Potential widening of the meeting will be closed to the public. navigation channel at between Berths alternatives will be further formulated and developed during the scoping DATES: The meeting will be held on 121 to 126. Monday, July 15, 2002, from 8:30 a.m. (6) Potential landfill at the slip process and an appropriate range of alternatives, including the no federal to 1 p.m. The closed Executive Session between Berths 131 to 136 of will be from 12:15 p.m. to 1 p.m. approximately 13 acres. action alternative, will be considered in ADDRESSES: The meeting will be held in (c) Improvements to the Berth 136– the EIS/SEIR. the Bo Coppedge Dining Room of 151 area. 5. Scoping Process Alumni Hall at the U.S. Naval Academy. (1) Consolidation of the area into a single facility. A public scoping meeting (see DATES) FOR FURTHER INFORMATION CONTACT: (2) Construct and upgrade up to 2,600 will be held to receive public comment Lieutenant Commander Mark DeBuse, feet of wharves. and assess public concerns regarding Executive Secretary to the Board of (3) Wharf improvement, including the appropriate scope and preparation Visitors, Office of the Superintendent, upgrade to 100-foot gauge crane rail. of the Draft EIS/SEIR. Participation in U.S. Naval Academy, Annapolis, MD (4) Construct and operate additional the public meeting by federal, state and 21402–5000, (410) 293–1503. terminal gate facilities and buildings. local agencies and other interested SUPPLEMENTARY INFORMATION: This (5) Construction and operation of a organizations and persons is notice of meeting is provided per the grade separation at Neptune Avenue. encouraged. Federal Advisory Committee Act (5 (6) Expansion of the terminal into the The Corps will also be consulting U.S.C. App. 2). The executive session of 20-acre area south of the realigned Harry with the U.S. Fish and Wildlife Service the meeting will consist of discussions Bridges Blvd. under the Endangered Species Act and of information, which pertain to the (7) Construction and operation of the Fish and Wildlife Coordination Act, conduct of various midshipmen at the additional 10-acre intermodal rail and and with the National Marine Fisheries Naval Academy and internal Board of infrastructure. Service under the Magnuson-Stevens Visitors matters. Discussion of such (8) Consolidation of the 17-acre Act. Additionally, the EIS/SEIR will information cannot be adequately marine oil terminal and infrastructure at assess the consistency of the proposed segregated from other topics, which Berths 148–151 into a five to six acre action with the Coastal Zone precludes opening the executive session site and redevelopment of the area at Management Act and assess potential of this meeting to the public. In Berth 149 to container terminal water quality impacts pursuant to accordance with 5 U.S.C. App. 2, operations. Section 401 of the Clean Water Act. section 10(d), the Secretary of the Navy
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has determined in writing that the located in West Windsor Township, respectively, and to limit the existing special committee meeting shall be Mercer County, New Jersey. withdrawal from all sources to 543 mg/ partially closed to the public because it 2. Conshohocken Borough Authority 30 days. The project is located in the St. will be concerned with matters as D–2001–59 CP. A project to rerate a 2.3 Jones River watershed in the City of outlined in section 552(b)(2), (5), (6), (7), mgd sewage treatment plant (STP) to Wyoming, Kent County, Delaware. and (9) of title 5 U.S.C. treat 2.35 mgd on an average monthly In addition to the public hearing Dated: June 21, 2002. basis and up to 3 mgd as a maximum items, the Commission will address the monthly flow. The STP will continue to R.E. Vincent II, following at its 1 p.m. business meeting: provide high quality secondary Minutes of the May 31, 2002 business Lieutenant Commander, Judge Advocate treatment and discharge to the General’s Corps, U.S. Navy, Federal Register meeting; announcements; a report on Liaison Officer. Schuylkill River through the existing Basin hydrologic conditions; a report by outfall. The project is located at Elm and [FR Doc. 02–16937 Filed 7–3–02; 8:45 am] the Executive Director; and a report by Jones Streets in Conshohocken Borough, the Commission’s General Counsel, BILLING CODE 3810–FF–P Montgomery County, Pennsylvania. The including consideration by the plant will continue to serve Commission of an agreement reached by Conshohocken Borough, plus portions the Petitioners in the appeal of Docket DELAWARE RIVER BASIN of Whitemarsh and Plymouth COMMISSION No. D–98–11 CP of the Pennsylvania Townships, all within Montgomery Suburban Water Company (the ‘‘Cornog Notice of Commission Meeting and County. Quarry’’ project). The meeting will end 3. Newark Country Club D–2002–12. Public Hearing with an opportunity for public dialogue. A ground water withdrawal project to Documents relating to the dockets and Notice is hereby given that the supply up to 2.1 mg/30 days of water to other items may be examined at the Delaware River Basin Commission will the applicant’s golf course from new Commission’s offices. Preliminary hold an informal conference followed Well No.5 in the Christianstead Gneiss dockets are available in single copies by a public hearing on Wednesday, July Formation, and to increase the existing upon request. Please contact Thomas L. 17, 2002. The hearing will be part of the withdrawal from all wells to 5.0 mg/30 Brand at 609–883–9500 ext. 221 with Commission’s regular business meeting. days. The project is located in the any docket-related questions. Persons Both the conference session and Christina River and White Clay Creek wishing to testify at this hearing are business meeting are open to the public watersheds in the City of Newark, New requested to register in advance with the and will be held at the Commission Castle County, Delaware. Commission Secretary at 609–883–9500 offices at 25 State Police Drive, West 4. Bidermann Golf Club D–2002–13. A ext. 203. Trenton, New Jersey. ground water withdrawal project to Individuals in need of an The conference among the supply up to 0.864 mg/30 days of water accommodation as provided for in the Commissioners and staff will begin at 10 to the applicant’s golf course from new Americans With Disabilities Act who a.m. Topics of discussion will include Well No. 5 in the Wissahickon wish to attend the hearing should an update on the Comprehensive Plan Formation, and to increase the existing contact the Commission Secretary (CP); reports on the PCB TMDL withdrawal from all sources to 15.8 mg/ directly at 609–883–9500 ext. 203 or development effort; a report on the 30 days. The project is located in the through the New Jersey Relay Service at development of water quality criteria for Brandywine Creek watershed in the City 1–800–852–7899 (TTY), to discuss how toxic pollutants; a report on the Flow of Wilmington, New Castle County, the Commission may accommodate your Management Technical Advisory Delaware. needs. Committee meeting of June 25; and an 5. Town of Roxbury D–2002–14 CP. A update on Flood Advisory Committee project to export 0.3 mgd of water, half Dated: June 28, 2002. activities. in the form of raw sewage from failing Pamela M. Bush, The subjects of the public hearing to on-lot systems and half as ground water Commission Secretary and Assistant General be held during the 1 p.m. business supply, from the Hamlet of Roxbury in Counsel. meeting include, in addition to the the Delaware River Basin to the Hamlet [FR Doc. 02–16809 Filed 7–3–02; 8:45 am] dockets listed below: a resolution of Grand Gorge in the Mohawk-Hudson BILLING CODE 6360–01–P correcting paragraph 2.A. of Resolution River Basin. Both hamlets are located in No. 2002–6 to reflect that the Thermal the Town of Roxbury, Delaware County, Release Bank expires on April 30, 2003 New York. The proposed ground water DEPARTMENT OF EDUCATION and not on October 31, 2002; a withdrawal and exportation project will [CFDA No.: 84.083A] resolution amending Docket D–77–110 replace a collapsed production well (No. CP by the addition of a ‘‘Designated 1) in the Roxbury Water District with a Women’s Educational Equity Program Unit’’ to Table A (Revised); and a new one. The proposed ground water (WEEA); Notice Inviting Applications resolution concerning the declaration of withdrawal from new Well No. 1 of up for New Awards for Fiscal Year (FY) drought emergency issued by the to 3 mg/30 days will be taken from the 2002 Commission on December 18, 2001. Catskill Formation. The raw sewage will The dockets scheduled for public be conveyed via force main to the Summary: The Secretary invites hearing are as follows: existing NYCDEP Grand Gorge Sewage applications for new grant awards for 1. Holdover Project: Mercer County Treatment Plant located off State Route FY 2002 for the Women’s Educational Improvement Authority D–99–28 CP. A 23, and following treatment will be Equity Program. These grants are project to construct a surface water discharged to adjacent Bear Creek. authorized by subpart 21, part D, title V, intake on Assunpink Creek at Mercer 6. Fifer Orchards, Inc. D–2002–20. A of the Elementary and Secondary Lake to withdraw 2.6 million gallons ground water withdrawal project to Education Act (ESEA), as amended by per day (mgd) of water. The new intake, supply up to 51.45 mg/30 days of water the No Child Left Behind Act, Public in addition to an existing intake that can to the applicant’s orchard from new Law 107–110. provide 1.3 mgd, will irrigate the Wells Nos. 6 and 7, in the Columbia/ Purpose of Program: To provide applicant’s Mercer Oaks II Golf Course Choptank and Columbia Formations, financial assistance: to promote gender
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equity in education; to enable implementation of gender equity (l) Programs to improve educational agencies to meet the programs in schools. Examples of representation of women in educational requirements of title IX of the Education statutory activities under the program administration at all levels; and Amendments of 1972; and to promote include— (m) Planning, development, and equity in education for women and girls (a) Assisting educational agencies and initial implementation of: who suffer from multiple forms of institutions to implement policies and • Comprehensive institution- or discrimination based on sex and race, practices to comply with title IX of the districtwide evaluatio to assess the ethnic origin, limited English Education Amendments of 1972; presence or absence of gender equity in proficiency, disability or age. (b) Training for teachers, counselors, educational settings; Eligible Applicants: Public agencies, administrators, and other school • Comprehensive plans for private nonprofit agencies, personnel, especially preschool and implementation of equity programs in organizations, institutions, student elementary school personnel, in gender- State and local educational agencies and groups, community groups, and equitable teaching and learning institutions of higher education, individuals. practices; including community colleges; and Applications Available: July 5, 2002. (c) Leadership training for women and • Innovative approaches to school- Deadline for Transmittal of girls to develop professional and community partnerships for educational Applications: August 19, 2002. marketable skills to compete in the equity. Deadline for Intergovernmental global marketplace, improve self- Note: Due to a limited budget, the Review: October 18, 2002. esteem, and benefit from exposure to Department is not inviting applications Available Funds: $842,000. positive role models; under CFDA #84.083B (research and Estimated Range of Awards: $95,000– (d) School-to-work transition development grants) for FY 2002. $200,000. programs, guidance and counseling Estimated Average Size of Awards: Invitational Priority for activities, and other programs to Implementation Grants: The Secretary $145,000. increase opportunities for women and Estimated Number of Awards: 4–7 invites and encourages applications that girls to enter a technologically (The Department is not bound by any meet one or more of the following three demanding workplace and, in estimates in this notice). invitational priorities for particular, to enter highly skilled, high- implementation grants: Note: In order to ensure the equitable paying careers in which women and (1) Projects that replicate or expand, distribution of grants, the Secretary, to the girls have been underrepresented; and evaluate exemplary model programs extent feasible, will award a slate of grants (e) Enhancing educational and career that address: that advance educational equity and • A variety of levels of education, opportunities for those women and girls contribute to improving teaching and including preschool, elementary and who suffer multiple forms of learning for girls and women with secondary education, higher education, discrimination, based on sex and on disabilities. The Secretary is particularly vocational education and adult education; race, ethnic origin, limited English interested in projects that include one of • Different regions of the United States; proficiency, disability, socioeconomic the following: and status, or age; • (a) Programs involving disabled girls A diversity of urban, rural, and suburban (f) Assisting pregnant students and and women who are likely to entities. students rearing children to remain in or experience, or have experienced, Project Period: Up to 48 months. to return to secondary school, graduate, multiple forms of discrimination based Fiscal year 2002 funds available under and prepare their preschool children to on sex, race, ethnic origin, limited this competition would be used for the start school; English proficiency, disability, first 12 months of a project. (g) Evaluating exemplary model socioeconomic status or age; E-Mail Notification of Intent to Apply programs to assess the ability of such (b) Mentoring programs and for Funding: The Department will be programs to advance educational equity leadership training for disabled girls able to develop a more efficient process for women and girls; and women; and for reviewing grant applications if it has (h) Introduction into the classroom of (c) Identification of curricula and a better understanding of the number of textbooks, curricula, and other materials other materials designed to achieve entities that intend to apply for funding designed to achieve equity for women equity for girls and women with under this competition. Therefore, the and girls; disabilities and the effective Secretary strongly encourages each (i) Programs and policies to address implementation of these materials in the potential applicant for the Women’s sexual harassment and violence against classroom. Educational Equity program to notify women and girls and to ensure that (2) Projects that assist pregnant the Department by e-mail that it intends educational institutions are free from students and students with children to: to submit an application for funding. threats to the safety of students and (a) Remain in or return to secondary The Secretary requests that this e-mail personnel; school and graduate; notification be sent no later than August (j) Nondiscriminatory tests of aptitude (b) Prepare their preschool children 5, 2002. The e-mail notification should and achievement and of alternative for school with an emphasis on reading; be sent to Diane Austin at assessments that eliminate biased (c) Explore postsecondary training [email protected]. Applicants that assessment instruments from use; and education. fail to provide this e-mail notification (k) Programs to increase educational (3) Projects that increase the role of may still apply for funding. opportunities, including higher parents in working in partnership with Applicable Regulations: The education, vocational training, and educational institutions to develop Education Department General other educational programs for low- programs to encourage the full Administrative Regulations (EDGAR) in income women, including educational development of girls and 34 CFR parts 74, 75, 77, 79, 80, 81, 82, underemployed and unemployed women 85, 86, 97, 98, and 99. women, and women receiving Aid to (4) Projects that seek to increase SUPPLEMENTARY INFORMATION: The Families with Dependent Children opportunities for girls and women to Department will award grants for the benefits; enter a technologically demanding
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workplace and, in particular, to enter to be carried out by the proposed (8) Quality of the management plan. highly skilled careers in which women project. (15 points) have been underrepresented, b. The extent to which the proposed The Secretary considers the quality of particularly in mathematics, scientific project will promote equity in the management plan for the proposed and information technology fields. educational and career opportunities for project. In determining the quality of the Note: An application that meets this those women and girls who suffer management plan for the proposed invitational priority does not receive multiple forms of discrimination, based project, the Secretary considers the competitive or absolute preference over other on sex and race, ethnic origin, limited following factors: applications. English proficiency, disability, or age. a. The adequacy of the management (5) Quality of the project design. (20 plan to achieve the objectives of the Selection Criteria for Implementation points) proposed project on time and within Grants: The Secretary evaluates The Secretary considers the quality of budget, including clearly defined applications for implementation grants the design of the proposed project. In responsibilities, time lines, and on the basis of the following criteria. determining the quality of the design of milestones for accomplishing project The maximum possible score for each the proposed project, the Secretary tasks. criterion is indicated in parentheses considers the following factors: b. The extent to which the time with the criterion. The Secretary awards a. The extent to which the goals, commitments of the project director and up to 100 points for all of the criteria. objectives, and outcomes to be achieved principal investigator and other key (1) Effectively achieving the purposes by the proposed project are clearly project personnel are appropriate and of WEEA. (10 points) specified and measurable. adequate to meet the objectives of the The Secretary reviews each b. The extent to which the design of proposed project. application to determine how well the the proposed project is appropriate to, c. How the applicant will ensure that project will effectively achieve the and will successfully address, the needs a diversity of perspectives are brought to purposes of the WEEA Program. of the target population or other bear in the operation of the proposed Note: Applicants should consider the identified needs. project, including those of parents, following statutory provisions when c. The extent to which the design of teachers, the business community, a responding to this criterion. Under 20 U.S.C. the proposed project reflects up-to-date variety of disciplinary and professional 7283a, the purpose of the WEEA program is: knowledge from research and effective fields, recipients or beneficiaries of (a) To promote gender equity in education in practice. the United States; (b) to provide financial services, or others, as appropriate. assistance to enable educational agencies and d. The extent to which the project (9) Quality of the project evaluation. institutions to meet the requirements of title promotes the involvement of parents. (15 points) IX of the Educational Amendments of 1972; (6) Quality of Project Personnel. (10 The Secretary considers the quality of and (c) to promote equity in education for points) the evaluation to be conducted of the women and girls who suffer from multiple The Secretary considers the quality of proposed project. In determining the forms of discrimination based on sex, race, the personnel who will carry out the quality of the evaluation, the Secretary ethnic origin, limited-English proficiency, proposed project. In determining the considers the following factors: disability, or age. Under 20 U.S.C. 7283d(e) quality of project personnel, the a. The extent to which the methods of nothing in this subpart shall be construed as Secretary considers the extent to which evaluation are thorough, feasible, and prohibiting men and boys from participating the applicant encourages applications in any program or activity assisted with appropriate to the goals, objectives, and funds under this subpart. for employment from persons who are outcomes of the proposed project. members of groups that have b. The extent to which the methods of (2) Project as a component of a traditionally been underrepresented evaluation include the use of objective comprehensive plan. (10 points) based on race, color, national origin, performance measures that are clearly The Secretary reviews each gender, age, or disability. In addition, related to the intended outcomes of the application to determine the extent to the Secretary considers the following project and will produce quantitative which the project is a significant factors: and qualitative data to the extent component of a comprehensive plan for a. The qualifications, including possible. educational equity and compliance with relevant training and experience, of the c. The extent to which the methods of title IX of the Educational Amendments project director or principal evaluation will provide performance of 1972 in the particular school district, investigator. feedback and permit periodic institution of higher education, b. The qualifications, including assessment of progress toward achieving vocational-technical institution, or other relevant training and experience, of key intended outcomes. educational agency or institution. project personnel. d. The extent to which the evaluation (3) Implementing an institutional c. The qualifications, including will provide guidance about effective change strategy. (5 points) relevant training and experience, of strategies suitable for replication or The Secretary reviews each project consultants or subcontractors. testing in other settings. application to determine the extent to (7) Adequacy of resources. (5 points) which the project implements an The Secretary considers the adequacy Note: Applicants should consider the institutional change strategy with long- of resources for the proposed project. In following statutory provision when responding to this criterion. Under 20 U.S.C. term impact that will continue as a determining the adequacy of resources 7283c(1), applicants for WEEA funds are central activity of the applicant after the for the proposed project, the Secretary required to describe policies and procedures WEEA grant has been terminated. considers the following factors: that will ensure a comprehensive evaluation (4) Need for project. (10 points) a. The adequacy of support, including of the grant activities, including an The Secretary considers the need for facilities, equipment, supplies, and evaluation of the practices, policies, and the proposed project. In determining the other resources, from the applicant materials used by the applicant and an need for the proposed project, the organization or the lead applicant evaluation or estimate of the continued Secretary considers the following organization. significance of the work of the project factors: b. The extent to which the budget is following completion of the award period. a. The magnitude of the need for the adequate to support the proposed For Applications Contact: Education services to be provided or the activities project. Publications Center (ED Pubs), P.O. Box
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1398, Jessup, MD 20794–1398. DEPARTMENT OF EDUCATION your application. You must limit Part IV Telephone (toll free): 1–877–433–7827. to the equivalent of no more than 50 FAX: (301) 470–1244. If you use a [CFDA No. 84.361] pages, using the following standards: telecommunications device for the deaf • A ‘‘page’’ is 8.5″ × 11″, on one side Office of Elementary and Secondary ″ (TDD) you may call (toll free): 1–877– Education; Voluntary Public School only, with 1 margins at the top, bottom, 576–7734. Choice Program; Notice Inviting and on both sides. • Double space (no more than three You may also contact ED Pubs at its Applications for New Awards for Fiscal lines per vertical inch) all text in the Web site: http://www.ed.gov/about/ Year (FY) 2002 application narrative, including titles, ordering.jsp Purpose of Program: This program headings, footnotes, quotations, Or you may contact ED Pubs at its e- provides grants to eligible applicants to references, and captions, as well as all mail address: [email protected] assist them in establishing or expanding text in charts, tables, figures, and If you request an application from ED a program of voluntary public school graphs. • Pubs, be sure to identify this choice in order to provide parents, Use a font that is either 12-point or competition as follows: CFDA number particularly parents whose children larger or no smaller than 10 pitch 84.363A. attend low-performing schools, with (characters per inch). greater choice in their children’s The page limit does not apply to Part For Content Information and education. I, the cover sheet; Part II, the table of Technical Assistance Contact: Diane Eligible Applicants: (a) One or more contents; Part III, the project abstract Austin, U.S. Department of Education, State educational agencies (SEAs); (b) and application requirements; Part V, 400 Maryland Avenue, SW., Room one or more local educational agencies the budget section, including the 3E124, Washington, DC 20202–6140. (LEAs); (c) one or more SEAs in narrative budget justification; part VI, Telephone: (202) 260–1393 or via partnership with one or more LEAs or the assurances and certifications; or Part Internet: [email protected] other public, for-profit, or non-profit VII, the proof of eligibility. However, Individuals with disabilities may entities; or (d) one or more LEAs in you must include all of the program obtain this document in an alternative partnership with one or more public, narrative in Part IV. format (e.g., Braille, large print, for-profit, or non-profit entities. Our reviewers will not read any pages audiotape, or computer diskette) on Applications Available: July 5, 2002. of your application that— • request using the contact information Deadline for Transmittal of Exceed the page limit if you apply provided under For Applications Applications: August 19, 2002 these standards; or • Contact. Deadline for Intergovernmental Exceed the equivalent of the page Review: September 18, 2002. limit if you apply other standards. Electronic Access to This Document Estimated Available Funds: Applicable Regulations and Statute: $25,000,000. (a) The Education Department General You may view this document, as well Estimated Range of Awards: Administrative Regulations (EDGAR) in as all other Department of Education $2,500,000–$5,000,000 per year. 34 CFR parts 74, 75, 77, 79, 80, 82, 85, documents published in the Federal Estimated Average Size of Awards: 86, 86, 97, 98, and 99. (b) Title V, Part Register, in text or Adobe Portable $3,750,000 per year. B, Subpart 3 of the Elementary and Document Format (PDF) on the Internet Estimated Number of Awards: 5–10. Secondary Education Act of 1965 at the following site: www.ed.gov/ Note: These estimates are for the guidance (ESEA), as amended by the No Child legislation/FedRegister of potential applicants. The Department is Left Behind Act of 2001, 20 U.S.C. To use PDF you must have Adobe not bound by any estimates in this notice. 7225–7225g. Acrobat Reader, which is available free Project Period: Up to five years. Waiver of Proposed Rulemaking: In at this site. If you have questions about accordance with the Administrative Note: Not more than 12 months may be Procedure Act (5 U.S.C. 553), it is the using PDF, call the U.S. Government used to plan and design a program. Printing Office (GPO), toll free, at 1– practice of the Secretary to offer 888–293–6498; or in the Washington, E-Mail Notification of Intent to Apply interested parties the opportunity to DC area at (202) 512–1530. for Funding: The Department will be comment on proposed rules. Ordinarily, able to develop a more efficient process this practice might have applied to one Note: The official version of this document for reviewing grant applications if it has or more of the priorities and is the document published in the Federal a better understanding of the number of requirements in this notice. Section Register. Free Internet access to the official entities that intend to apply for funding 437(d)(1) of the General Education edition of the Federal Register and the Code under this competition. Therefore, the Provisions Act (GEPA), however, of Federal Regulations is available on FPO Secretary strongly encourages each exempts rules that apply to the first access at: http://www.access.gpo.gov/nara/ potential applicant for this program to competition under a new or index.html notify the Department by e-mail that it substantially revised program from this intends to submit an application for requirement. Because this competition Program Authority: 20 U.S.C. 6651(b). funding. The Secretary requests that this is the first Voluntary Public School Dated: July 1, 2002. e-mail notification be sent no later than Choice program competition under the Susan B. Neuman, August 5, 2002. The e-mail notification newly reauthorized ESEA, it qualifies as Assistant Secretary for Elementary and should be sent to Ms. Iris Lane at a new competitive grant program and is Secondary Education. [email protected]. Applicants that fail to exempt from notice and comment [FR Doc. 02–16888 Filed 7–3–02; 8:45 am] provide this e-mail notification still may rulemaking. The Secretary, in apply for funding. accordance with section 437(d)(1) of BILLING CODE 4000–01–P Page Limits: The Program Narrative GEPA, to ensure timely awards, has (Part IV of the application) is where you, decided to forego public comment. This the applicant, address the selection notice applies to the FY 2002 criteria that reviewers use to evaluate competition only.
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Application Requirements: An in participating schools. In determining (b) Significance (up to 15 points). The application submitted to the Secretary whether a proposed project would Secretary considers the significance of must include the following: provide a wide variety of choices, the the proposed project. In determining the (1) A description of the program for Department will consider, among other significance of the proposed project, the which the eligible entity seeks funds things, the characteristics of the school Secretary considers the following and the goals for the program; district. For example, a wide variety of factors: (2) A description of how and when choices in a small rural district may (1) The likelihood that the proposed parents of students in the area to be differ from a wide variety of choices in project will result in system change or served by the program will be notified a large urban school district. improvement. (b) Substantial Impact on Students in of the existence of the program and of (2) The extent to which the proposed Low-Performing Schools (up to 5 the program’s availability, and provided project is likely to build local capacity points). The project would, through a clear explanation of how the program to provide, improve, or expand services will operate, as required under section various choice options, have a substantial impact in allowing students (i.e., choice options) that address the 5245(a)(2) of the ESEA; needs of the target population. (3) A description of how students will in low-performing schools to attend be selected for the program; higher-performing schools. In (3) The potential replicability of the (4) A description of how the program determining whether a proposed project proposed project or strategies, will be coordinated with, and will would have a substantial impact in including, as appropriate, the potential complement and enhance, other related allowing students in low-performing for implementation in a variety of Federal and non-Federal programs schools to attend higher-performing settings. administered by the applicant or schools, the Department will consider, (c) Quality of Project Design). (up to applicants; among other things, the percentage of 40 points). The Secretary considers the (5) If the program is to be carried out students in low-performing schools who quality of the design of the proposed by a partnership, the name of each would be able to attend higher- project. In determining the quality of the partner and a description of the performing schools under the design of the proposed project, the partner’s responsibilities; and jurisdiction of the applicant(s). Secretary considers the following (6) A description of the information Note: The term ‘‘low-performing school’’ factors: collection that the applicant plans to means a public elementary or secondary (1) The extent to which the proposed conduct in order to meet the school that has failed to make adequate project encourages parental involvement requirements of 34 CFR 75.590 and to yearly progress, as described in section and ensures that parents have high- participate in any evaluation of the 1111(b) of the ESEA, for two or more quality information about their choices. consecutive years. program that the Secretary conducts (2) The extent to which the goals, under section 5246(b) of the ESEA. (c) Partnership/Interdistrict Approach objectives, and outcomes to be achieved Section 75.590 requires the recipient of (up to 5 points). The project would by the proposed project are clearly an award to evaluate at least annually establish a partnership that implements specified and measurable. its progress in meeting the purposes of an interdistrict approach to carrying out a public school choice program. (3) The extend to which the design for the program, and the effect of the implementing and evaluating the program on the participants in the These priorities are specified in the authorizing statute for the program (see proposed project will result in project. Section 5246(b) of the ESEA information to guide possible authorizes the Secretary to conduct section 5244 of the ESEA). The priority points are in addition to any points the replication of project activities or evaluations that examine, among other strategies, including information about things, how, and the extent to which, applicant earns under the selection projects promote educational equity and criteria listed below. The Secretary may Permissible Uses of Funds select an application that meets a excellence; the characteristics of An eligible entity that receives a grant students participating in projects; and priority over an application of comparable merit that does not meet the under this subpart may use the grant the effect of projects on academic funds for— achievement of students participating in priority. The maximum number of points an application may earn based on (a) Planning or designing a program the projects, including students who the priority points and the selection (for not more than 1 year); move from school improvement under criteria is 115 points. (b) The cost of making tuition transfer section 1116 of the ESEA to schools not Selection Criteria: The Secretary will so identified. payments to public elementary schools use the selection criteria in 34 CFR or secondary schools to which students Note: The application requirements 75.210 and selection criteria based on transfer under the program. described above must be addressed in the statutory provisions to evaluate (c) The cost of capacity-enhancing Project Abstract and Application applications for new grants under this activities that enable high-demand Requirements section (Part III) of your competition. The maximum possible application. public elementary schools or secondary score for all of the selection criteria is schools to accommodate transfer Priority Points: Under 34 CFR 100 points. The maximum score for requests under the program; 75.105(c)(2) of the Education each criterion is indicated in Department General Administrative parenthesis with the criterion. The (d) The cost of carrying out public Regulations, the Secretary will award a criteria are as follows: education campaigns to inform students maximum of up to 5 priority points for (a) Need for the Project (up to 100 and parents about the program; and each criterion the applicant meets, and points). The Secretary considers the (e) Other costs that are reasonably a maximum of up to 15 priority points need for the proposed project. In necessary to implement the program. for applications that meet all of the determining the need for the proposed Nonpermissible Use of Funds following criteria: project, the Secretary considers the (a) Wide Variety of Choices (up to 5 magnitude of the need for the services An eligible entity that receives a grant points). The project would provide a to be provided or the activities to be under this program may not use the wide variety of choices to all students carried out by the proposed project. grant funds for school construction.
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Parent and Community Involvement Electronic Access to This Document FOR FURTHER INFORMATION CONTACT: For and Notice You may view this document, as well further information on this notice as all other Department of Education contact Debra Sturdivant, U.S. In carrying out a project under this Department of Education, 400 Maryland program, an eligible entity must— documents published in the Federal Register, in text or Adobe Portable Avenue, SW, room 3527, Switzer (1) Develop the project with (a) the Document format (PDF) on the Internet Building, Washington, DC 20202–2641. involvement of parents and others in the at the following site: www.ed.gov/ FAX: (202) 205–8105 (FAX is the community to be served; and (b) legislation/FedRegister preferred method for requesting individuals who will carry out the To use PDF, you must have Adobe information). Telephone: (202) 205– program, including administrators, Acrobat Reader, which is available free 8038. Internet: teachers, principals, and other staff; and at this site. If you have questions about [email protected]. (2) Provide to parents of students in using PDF, call the U.S. Government If you use a telecommunications the area to be served by the program Printing Office (GPO) toll free at 1–888– device for the deaf (TDD), you may call with prompt notice of (a) the existence 293–6498; or in the Washington, DC the Federal Information Relay Service of the program; (b) the program’s area at (202) 512–1530. (FIRS) at 1–800–877–8339. availability; and (c) a clear explanation Individuals with disabilities may of how the program will operate. Note: The official version of a document is obtain this document in an alternative the document published in the Federal format (e.g., Braille, large print, Selection of Students by Lottery Register. Free Internet access to the official edition of the Federal Register and the Code audiotape, or computer diskette) on An eligible entity that receives a grant of Federal Regulations is available on GPO request to the contact persons listed under this program must select students Access at: http://www.access.gpo.gov/nara/ under FOR FURTHER INFORMATION to participate in its public school choice index.html CONTACT. program on the basis of a lottery, if more Electronic Access to This Document students apply for admission to the Program Authority: 20 U.S.C. 7225–7225g. program than can be accommodated. Dated: July 1, 2002. You may view this document, as well Susan B. Neuman, as all other Department of Education Note: For purposes of this program, a documents published in the Federal Assistant Secretary for Elementary and lottery is defined as a random selection Register, in text or Adobe Portable process through which applicants for Secondary Education. Document Format (PDF) on the Internet admission to a participating public school are [FR Doc. 02–16889 Filed 7–3–02; 8:45 am] admitted to the school. at the following site: www.ed.gov/ BILLING CODE 4000–01–U legislation/FedRegister. Voluntary Participation To use PDF you must have Adobe Acrobat Reader, which is available free DEPARTMENT OF EDUCATION Student participation in a project at this site. If you have questions about funded under this program must be Office of Special Education and using PDF, call the U.S. Government voluntary. Rehabilitative Services; Inviting Printing Office (GPO), toll free, at 1– For Applications or Information Applications for New Awards 888–293–6498; or in the Washington, Contact: Iris A. Lane, U.S. Department DC, area at (202) 512–1530. AGENCY: Department of Education. of Education, 400 Maryland Avenue, Note: The official version of this document SW., Room 3C156, Washington, DC ACTION: Notice inviting applications for is the document published in the Federal 20202–6140. Telephone: (202) 260– new awards for fiscal years (FY) 2002; Register. Free Internet access to the official 1999. Inquiries may also be sent by e- Correction. edition of the Federal Register and the Code mail to: [email protected] of Federal Regulations is available on GPO On May 24, 2002, a notice inviting Access at: http://www.access.gpo/nara/ Or by FAX to: (202) 205–5630. The applications for new awards under the index.html. Department intends to offer prospective Office of Special Education and applicants further information about the Rehabilitative Services; Grant Program Authority: 20 U.S.C. 1482. program and assistance in preparing Applications under the Special Dated: July 1, 2002. applications at the following Internet Education—Training and Information Robert H. Pasternack, site: http://www.ed.gov/GrantApps/ for Parents of Children with Disabilities Assistant Secretary for Special Education and #84.361 Program was published in the Federal Rehabilitative Services. Individuals who use a Register (67 FR 36774). Under the [FR Doc. 02–16880 Filed 7–3–02; 8:45 am] telecommunications device for the deaf Parent Training and Information Centers BILLING CODE 4000–01–P (TDD) may call the Federal Information (84.328M) priority on page 36776, in Relay Service (FIRS) at 1–800–877– column 1, ‘‘Estimated Project Awards’’ 8339. section, and the table also included on DEPARTMENT OF EDUCATION Individuals with disabilities may page 36777, the notice states that one obtain this document in an alternative award may be made to New York in the William D. Ford Federal Direct Loan format (e.g., Braille, large print, amount of $234,075 to a qualified Program audiotape, or computer diskette) upon applicant for a parent center to serve the AGENCY: Department of Education. request to the contact person listed in entire State. The first sentence in the ACTION: Notice of the annual updates to the preceding paragraph. Individuals second paragraph of the ‘‘Estimated the income contingent repayment (ICR) with disabilities may obtain a copy of Project Awards’’ section is corrected to plan formula for 2002. the application package in an alternative begin, ‘‘With the exception of New format, also, by contacting that person. York, where the award will serve the SUMMARY: The Secretary announces the However, the Department is not able to metropolitan New York City area, one annual updates to the ICR plan formula reproduce in an alternative format the award may be made in the following for 2002. Under the William D. Ford standard forms included in the amounts to a qualified applicant for a Federal Direct Loan (Direct Loan) application package. parent center to serve the entire State’’. Program, borrowers may choose to repay
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their student loans under the ICR plan, Education documents published in the the two will be your annual payment which bases the repayment amount on Federal Register, in text or Adobe amount. In this example, you will be paying the borrower’s income, family size, loan Portable Document Format (PDF) on the the amount calculated under Step 2. To determine your monthly repayment amount, amount, and interest rate. Each year, we Internet at the following site: divide the annual amount by 12. adjust the formula for calculating a www.ed.gov/legislation/FedRegister. • $1,751.58 ÷ 12 = $145.97 borrower’s payment to reflect changes To use PDF, you must have Adobe Example 2. In this example, you are due to inflation. This notice contains Acrobat Reader, which is available free married. You and your spouse have a the constant multiplier chart and the at this site. If you have questions about combined AGI of $61,121 and are repaying required updates based on inflation for using PDF, call the U.S. Government your loans jointly under the ICR plan. You examples of how the calculation of the Printing Office (GPO), toll free at 1–888– have no children. You have a Direct Loan monthly ICR amount is performed, the 293–6498; or in the Washington DC, balance of $10,000, and your spouse has a Direct Loan balance of $15,000. Your interest income percentage factors, and charts area at (202) 512–1530. rate is 8.25 percent. showing sample repayment amounts. Note: The official version of this document Step 1: Add your and your spouse’s Direct These updates are effective from July 1, is the document published in the Federal Loan balances together to determine your 2002 to June 30, 2003. Register. Free internet access to the official aggregate loan balance: • FOR FURTHER INFORMATION CONTACT: Don edition of the Federal Register and the Code $10,000 + $15,000 = $25,000 Watson, U.S. Department of Education, of Federal Regulations is available on GPO Step 2: Determine the annual payment Access at: http://www.access.gpo.gov/nara/ based on what you would pay over 12 years Room 092B1, UCP, 400 Maryland index.html. using standard amortization. To do this, Avenue, SW., Washington, DC 20202– multiply your aggregate loan balance by the 5400. Telephone: (202) 377–4008. If you Program Authority: 20 U.S.C. 1087 et seq. constant multiplier for 8.25 percent interest (0.1315449). (The 8.25 percent interest rate use a telecommunications device for the Dated: July 1, 2002. deaf (TDD), you may call the Federal used in this example is the maximum interest Candace M. Kane, Information Relay Service (FIRS) at 1– rate charged for all Direct Loans excluding 800–877–8339. Acting Chief Operating Officer, Federal Direct PLUS Loans and may not be your Student Aid. actual interest rate. You can view the Individuals with disabilities may constant multiplier chart at the end of this obtain this document in an alternative Attachment—Examples of the Calculations notice to determine the constant multiplier format (e.g., Braille, large print, of Monthly Repayment Amounts that you should use for the interest rate on audiotape, or computer diskette) on your loan. If your exact interest rate is not Example 1. This example assumes you are listed, use the next highest for estimation request to the contact person listed in a single borrower with $15,000 in Direct purposes.) the preceding paragraph. Loans, the interest rate being charged is 8.25 • 0.1315449 × $25,000 = $3,288.62 SUPPLEMENTARY INFORMATION percent, and you have an adjusted gross : Direct Step 3: Multiply the result of Step 2 by the income (AGI) of $32,345. Loan Program borrowers may choose to income percentage factor shown in the repay their Direct Loans under the ICR Step 1: Determine your annual payments income percentage factors table that plan. The attachment to this notice based on what you would pay over 12 years corresponds to your and your spouse’s provides updates to examples of how using standard amortization. To do this, income and then divide the result by 100. (If multiply your loan balance by the constant the calculation of the monthly ICR your and your spouse’s aggregate income is multiplier for 8.25 percent interest not listed in the income percentage factors amount is performed, the income (0.1315449). The constant multiplier is a percentage factors, the constant table, calculate the applicable income factor used to calculate amortized payments percentage factor by following the multiplier chart, and charts showing at a given interest rate over a fixed period of instructions under the ‘‘Interpolation’’ sample repayment amounts. time. (The 8.25 percent interest rate used in heading later in this notice.): We have updated the income this example is the maximum interest rate • 109.40 × $3,288.62÷ 100 = $3,597.75 percentage factors to reflect changes charged for all Direct Loans excluding Direct Step 4: Determine 20 percent of your based on inflation. We have revised the PLUS Loans and may not be your actual discretionary income. To do this, subtract the income percentage factor table by interest rate. You can view the constant poverty level for a family of two, as multiplier chart at the end of this notice to published in the Federal Register on changing the dollar amounts of the determine the constant multiplier that you incomes shown by a percentage equal to February 14, 2002 (67 FR 6931), from your should use for the interest rate on your loan. aggregate income and multiply the result by the estimated percentage change in the If your exact interest rate is not listed, use the 20 percent: Consumer Price Index for all urban next highest for estimation purposes.) • $61,121¥$11,940 = $49,181 • × consumers from December 2001 to 0.1315449 $15,000 = $1,973.17 • $49,181 × 0.20 = $9,836.20 December 2002. Further, we provide Step 2: Multiply the result of Step 1 by the Step 5: Compare the amount from Step 3 examples of monthly repayment amount income percentage factor shown in the with the amount from Step 4. The lower of calculations and two charts that show income percentage factors table that the two will be your annual payment sample repayment amounts for single corresponds to your income and then divide amount. You and your spouse will pay the the result by 100. (If your income is not listed and married or head-of-household amount calculated under Step 3. To in the income percentage factors table, determine your monthly repayment amount, borrowers at various income and debt calculate the applicable income percentage divide the annual amount by 12. levels based on the updated income factor by following the instructions under the • $3,597.75÷12 = $299.81 percentage factors. ‘‘Interpolation’’ heading later in this notice.): Interpolation: If your income does not The updated income percentage • 88.77 × $1,973.17÷100 = $1,751.58 appear on the income percentage factors factors, at any given income, may cause Step 3: Determine 20 percent of your table, you will have to calculate the income a borrower’s payments to be slightly discretionary income. Because you are a percentage factor through interpolation. For lower than they were in prior years. single borrower, subtract the poverty level for example, assume you are single and your This updated amount more accurately a family of one, as published in the Federal income is $25,000. Register on February 14, 2002 (67 FR 6931), reflects the impact of inflation on a Step 1: Find the closest income listed that from your income and multiply the result by is less than your income of $25,000 and the borrower’s current ability to repay. 20 percent: closest income listed that is greater than your • ¥ Electronic Access to This Document $32,345 $8,860 = $23,485 income of $25,000. • $23,485 × 0.20 = $4,697 Step 2: Subtract the lower amount from the You may review this document, as Step 4: Compare the amount from Step 2 higher amount (for this discussion, we will well as all other Department of with the amount from Step 3. The lower of call the result the ‘‘income interval’’):
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• $25,751 ¥ $21,641 = $4,110 • $25,000 ¥ $21,641 = $3,359 percentage factor interval for $25,000 in Step 3: Determine the difference between Step 5: Divide the result of Step 4 by the income: the two income percentage factors that are income interval determined in Step 2: • 6.89776% + 71.89% = 78.79% (rounded • ÷ given for these incomes (for this discussion, $3,359 $4,110 = 0.81727 to the nearest hundredth) we will call the result, the ‘‘income Step 6: Multiply the result of Step 5 by the The result is the income percentage factor percentage factor interval’’): income percentage factor interval: that will be used to calculate the monthly • 80.33% ¥ 71.89% = 8.44% • 8.44% × 0.81727 = 6.89776% Step 4: Subtract from your income the Step 7: Add the result of Step 6 to the repayment amount under the ICR plan. closest income shown on the chart that is less lower of the two income percentage factors BILLING CODE 4000–01–P than your income of $25,000: used in Step 3 to calculate the income
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[FR Doc. 02–16879 Filed 7–3–02; 8:45 am] Comment Date: July 5, 2002. DEPARTMENT OF ENERGY BILLING CODE 4000–01–C Linwood A. Watson, Jr., Federal Energy Regulatory Deputy Secretary. Commission [FR Doc. 02–16833 Filed 7–3–02; 8:45 am] DEPARTMENT OF ENERGY BILLING CODE 6717–01–P [Docket No. ER02–2033–001] Federal Energy Regulatory Commission Midwest Independent Transmission DEPARTMENT OF ENERGY System Operator, Inc., American [Docket No. EC02–73–001] Federal Energy Regulatory Transmission Company LLC; Notice of Filing Caledonia Generating, LLC, Cogentrix Commission Energy Power Marketing, Inc., [Docket No. ES02–46–000] June 27, 2002. Cogentrix Lawrence County, LLC, Take notice that on June 25, 2002, the Green Country Energy, LLC, Jackson McDonough Power Cooperative; Midwest Independent Transmission County Power, LLC, Quachita Power, Notice of Application System Operator, Inc. (Midwest ISO) LLC, Rathdrum Power, LLC, Southaven June 28 , 2002. and American Transmission Company Power, LLC & Aquila Merchant LLC (ATCLLC) filed an errata to their Services, Inc.; Notice of Filing Take notice that on June 20, 2002, McDonough Power Cooperative June 5, 2002 filing proposing revisions June 28, 2002. (McDonough) submitted an application to the Midwest ISO open access Take notice that on June 17, 2002, pursuant to section 204 of the Federal transmission tariff to add limitation of Caledonia Generating, LLC, Cogentrix Power Act seeking authorization to liability provisions. Applicant request Energy Power Marketing, Inc., Cogentrix make borrowings under a long-term loan an effective date of August 5, 2002. Lawrence County, LLC, Green Country agreement with the National Rural The Midwest ISO seeks waiver of the Energy, LLC, Jackson County Energy, Utilities Cooperative Finance Commission’s regulations, 18 CFR LLC, Quachita Power, LLC, Rathdrum Corporation by issuing one or more 385.2010 with respect to service on all Power, LLC, Southaven Power, LLC secured promissory notes during a two- required parties. The Midwest ISO has (Operating Companies) and Aquila year period in an amount not to exceed posted this filing on its Internet site at Merchant Services, Inc. (AMS) filed $15,900,000. www.midwestiso.org, and the Midwest with the Federal Energy Regulatory McDonough also requests a waiver ISO will provide hard copies to any Commission (Commission), an from the Commission’s competitive interested parties upon request. amendment to the joint application bidding and negotiated placement Any person desiring to intervene or to submitted on June 5, 2002 in the above- requirements at 18 CFR 34.2. protest this filing should file with the referenced docket. The amendment Any person desiring to be heard or to Federal Energy Regulatory Commission, removed Section VI thereof in its protest such filing should file a motion 888 First Street, NE., Washington, DC entirety, while the Application remains to intervene or protest with the Federal 20426, in accordance with Rules 211 unchanged in all other respects. Energy Regulatory Commission, 888 and 214 of the Commission’s Rules of Any person desiring to intervene or to First Street, NE., Washington, DC 20426, Practice and Procedure (18 CFR 385.211 protest this filing should file with the in accordance with Rules 211 and 214 and 385.214). Protests will be Federal Energy Regulatory Commission, of the Commission’s Rules of Practice considered by the Commission in 888 First Street, NE., Washington, DC and Procedure (18 CFR 385.211 and determining the appropriate action to be 385.214). All such motions and protests 20426, in accordance with Rules 211 taken, but will not serve to make should be filed on or before the and 214 of the Commission’s Rules of protestants parties to the proceeding. comment date. Protests will be Practice and Procedure (18 CFR 385.211 Any person wishing to become a party considered by the Commission to and 385.214). Protests will be must file a motion to intervene. All such determine the appropriate action to be considered by the Commission in motions or protests should be filed on taken, but will not serve to make determining the appropriate action to be or before the comment date, and, to the protestants parties to the proceedings. taken, but will not serve to make extent applicable, must be served on the Any person wishing to become a party protestants parties to the proceeding. applicant and on any other person must file a motion to intervene. Copies Any person wishing to become a party designated on the official service list. of this filing are on file with the must file a motion to intervene. All such Commission and are available for public This filing is available for review at the motions or protests should be filed on inspection. This filing may also be Commission or may be viewed on the or before the comment date, and, to the viewed on the Web at http:// Commission’s Web site at http:// extent applicable, must be served on the www.ferc.gov using the ‘‘RIMS’’ link, www.ferc.gov using the ‘‘RIMS’’ link, applicant and on any other person select ‘‘Docket#’’ and follow the select ‘‘Docket #’’ and follow the designated on the official service list. instructions (call 202–208–2222 for instructions (call 202–208–2222 for This filing is available for review at the assistance). Comments, protests and assistance). Protests and interventions Commission or may be viewed on the interventions may be filed electronically may be filed electronically via the Commission’s Web site at http:// via the Internet in lieu of paper. See, 18 Internet in lieu of paper; see 18 CFR www.ferc.gov using the ‘‘RIMS’’ link, CFR 385.2001(a)(1)(iii) and the 385.2001(a)(1)(iii) and the instructions select ‘‘Docket #’’ and follow the instructions on the Commission’s Web on the Commission’s Web site under the instructions (call 202–208–2222 for site under the ‘‘e-Filing’’ link. ‘‘e-Filing’’ link. assistance). Protests and interventions Comment Date: July 19, 2002. Comment Date: July 9, 2002. may be filed electronically via the Internet in lieu of paper; see 18 CFR Linwood A. Watson, Jr., Linwood A. Watson, Jr., 385.2001(a)(1)(iii) and the instructions Deputy Secretary. Deputy Secretary. on the Commission’s Web site under the [FR Doc. 02–16835 Filed 7–05–02; 8:45 am] [FR Doc. 02–16801 Filed 7–3–02; 8:45 am] ‘‘e-Filing’’ link. BILLING CODE 6717–01–P BILLING CODE 6717–01–P
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DEPARTMENT OF ENERGY EL00–104–011, EL01–1–012, EL01–2– must file a motion to intervene. All such 006, EL01–68–016; San Diego Gas & motions or protests should be filed on Federal Energy Regulatory Electric Company v. Sellers of Energy or before the comment date, and, to the Commission and Ancillary Service Into Markets extent applicable, must be served on the Operated by the California Independent [Docket No. ES02–47–000] applicant and on any other person System Operator and the California designated on the official service list. Old Dominion Electric Cooperative; Power Exchange, Investigation of This filing is available for review at the Notice of Application Practices of the California Independent Commission or may be viewed on the System Operator and the California Commission’s Web site at http:// June 28, 2002. Power Exchange, Public Meeting in San www.ferc.gov using the ‘‘RIMS’’ link, Take notice that on June 21, 2002, Old Diego, California, Reliant Energy Power select ‘‘Docket #’’ and follow the Dominion Electric Cooperative (Old Generation, Inc., Dynegy Power instructions (call 202–208–2222 for Dominion) submitted an application Marketing, Inc., and Southern Energy assistance). 0Protests and interventions pursuant to section 204 of the Federal California, L.L.C. v. California may be filed electronically via the Power Act seeking authorization to Independent System Operator Internet in lieu of paper; see 18 CFR issue up to and including $66 million of Corporation, California Electricity 385.2001(a)(1)(iii) and the instructions long-term debt. Oversight Board v. All Sellers of Energy on the Commission’s Web site under the Old Dominion also requests a waiver and Ancillary Services Into the Energy ‘‘e-Filing’’ link. of the Commission’s competitive and Ancillary Services Markets bidding and negotiated placement Operated by the California Independent Comment Date: July 15, 2002. requirements at 18 CFR 34.2. System Operator and the California Linwood A. Watson, Jr., Any person desiring to be heard or to Power Exchange, California Municipal Deputy Secretary. protest such filing should file a motion Utilities Association v. All to intervene or protest with the Federal Jurisdictional Sellers of Energy and [FR Doc. 02–16834 Filed 7–3–02; 8:45 am] Energy Regulatory Commission, 888 Ancillary Services Into Markets BILLING CODE 6717–01–P First Street, NE., Washington, DC 20426, Operated by the California Independent in accordance with Rules 211 and 214 System Operator and the California of the Commission’s Rules of Practice Power Exchange, Californians for DEPARTMENT OF ENERGY and Procedure (18 CFR 385.211 and Renewable Energy, Inc. (CARE) v. Federal Energy Regulatory 385.214). All such motions and protests Independent Energy Producers, Inc., Commission should be filed on or before the and All Sellers of Energy and Ancillary comment date. Protests will be Services Into Markets Operated by the considered by the Commission to California Independent System Operator [Docket No. CP02–204–000] determine the appropriate action to be and the California Power Exchange; All taken, but will not serve to make Scheduling Coordinators Acting on Transcontinental Gas Pipe Line protestants parties to the proceedings. Behalf of the Above Sellers; California Corporation; Notice of Site Visit Any person wishing to become a party Independent System Operator June 27, 2002. must file a motion to intervene. Copies Corporation; and California Power of this filing are on file with the Exchange Corporation, Investigation of On July 9, 2002, the Office of Energy Commission and are available for public Wholesale Rates of Public Utility Sellers Projects (OEP) staff will conduct a pre- inspection. This filing may also be of Energy and Ancillary Services in the certification site visit of viewed on the Web at http:// Western Systems Coordinating Council; Transcontinental Gas Pipe Line www.ferc.gov using the ‘‘RIMS’’ link, Notice of Filing. Corporation’s (Transco) Trenton select ‘‘Docket#’’ and follow the Take notice that on June 24, 2002, the Woodbury Expansion Project in Mercer instructions (call 202–208–2222 for California Independent System Operator and Burlington Counties, New Jersey. assistance). Comments, protests and Corporation (ISO) submitted a filing We will examine the proposed project interventions may be filed electronically with the Federal Energy Regulatory route and potential route variations. via the Internet in lieu of paper. See, 18 Commission (Commission) in Representatives of Transco will be CFR 385.2001(a)(1)(iii) and the compliance with the Commission Order accompanying the OEP staff. instructions on the Commission’s Web issued in the captioned dockets on May All interested parties may attend. site under the ‘‘e-Filing’’ link. 15, 2002, 99 FERC ¶ 61,158. The ISO Those planning to attend must provide Comment Date: July 19, 2002. states that it has served the filing upon their own transportation. Those all entities that are on the official Dated: interested in attending should meet at service lists for the captioned dockets. Linwood A. Watson, Jr., 1:00 p.m. at the following location: Any person desiring to intervene or to Deputy Secretary. Municipal Building, Township of protest this filing should file with the Chesterfield, 300 Bordentown- [FR Doc. 02–16836 Filed 7–3–02; 8:45 am] Federal Energy Regulatory Commission, Chesterfield Road, Trenton, New Jersey BILLING CODE 6717–01–P 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 08620. and 214 of the Commission’s Rules of For additional information, please DEPARTMENT OF ENERGY Practice and Procedure (18 CFR 385.211 contact the Commission’s Office of Federal Energy Regulatory and 385.214). Protests will be External Affairs at 1–866–208–FERC. Commission considered by the Commission in determining the appropriate action to be Linwood A. Watson, Jr., June 28, 2002. taken, but will not serve to make Deputy Secretary. In the matter of: EL00–95–064, EL00– protestants parties to the proceeding. [FR Doc. 02–16800 Filed 7–3–02; 8:45 am] 98–053, EL00–107–012, EL00–97–006, Any person wishing to become a party BILLING CODE 6717–01–P
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DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY application for determination of exempt wholesale generator status pursuant to Federal Energy Regulatory Federal Energy Regulatory Part 365 of the Commission’s Commission Commission regulations. Metcalf, a Delaware limited liability [Docket No. EC02–79–000, et al.] [Docket No. ER02–2102–000] company, proposes to own and operate Electric Rate and Corporate Regulation a nominally rated 600 megawatt natural Utility Contract Funding, L.L.C.; Notice Filings gas-fired, combined cycle electric of Filing generating facility to be located in Santa June 27, 2002. Clara County, California. Metcalf June 20, 2002. The following filings have been made intends to sell the output at wholesale Take notice that on June 14, 2002, with the Commission. The filings are to an affiliated marketer. Utility Contract Funding, L.L.C. listed in ascending order within each Comment Date: July 18, 2002. docket classification. submitted a Notice of Succession 4. Keyspan-Ravenswood, Inc. pursuant to 18 CFR 35.16 and 131.51. 1. Logan Generating Company, L.P., [Docket No. EG02–158–000] Utility Contract Funding, L.L.C. is Pittsfield Generating Company, L.P., succeeding to the electric tariffs, rate and Cogentrix Energy, Inc. Take notice that on June 20, 2002 KeySpan-Ravenswood, Inc. (KeySpan- schedules, and service agreements [Docket Nos. EC02–79–000, ER95–1007–015, Ravenswood) filed with the Federal currently on file with the Federal and ER98–4400–004] Energy Regulatory Commission (FERC Energy Regulatory Commission by Take notice that on June 21, 2002, or the Commission) an application for Cedar Brakes III, L.L.C. Logan Generating Company, L.P. determination of exempt wholesale Any person desiring to intervene or to (Logan), Pittsfield Generating Company, generator status pursuant to part 365 of protest this filing should file with the L.P. (Pittsfield), and Cogentrix Energy, the Commission’s regulations. Federal Energy Regulatory Commission, Inc. (Cogentrix) (collectively, KeySpan-Ravenswood states it is a 888 First Street, NE., Washington, DC Applicants) filed with the Federal New York corporation that will be 20426, in accordance with rules 211 and Energy Regulatory Commission an engaged directly and exclusively in the 214 of the Commission’s rules of application pursuant to section 203 of business of owning or operating, or both practice and procedure (18 CFR 385.211 the Federal Power Act seeking owning and operating, all or part of one and 385.214). Protests will be authorization for the transfer of certain or more eligible facilities located in considered by the Commission in jurisdictional facilities that will result Queens, New York. The eligible determining the appropriate action to be from the sale of Cogentrix’s indirect facilities will consist of approximately taken, but will not serve to make interest in Logan and Pittsfield to 2,210 MW of gas and/or oil fired electric protestants parties to the proceeding. General Electric Capital Corporation. generation facilities and related Any person wishing to become a party Logan controls and operates a 218 MW interconnection facilities. The output of qualifying cogeneration facility located must file a motion to intervene. All such the eligible facilities will be sold in Logan Township, New Jersey. exclusively at wholesale. motions or protests should be filed on Pittsfield controls and operates a 165 Comment Date: July 18, 2002. or before the comment date, and, to the MW qualifying cogeneration facility 5. Maine Public Service Company extent applicable, must be served on the located in Pittsfield, Massachusetts. applicant and on any other person Logan and Pittsfield also request that [Docket No. ER00–1053–006] designated on the official service list. that the Commission accept the filing as Take notice that on June 18, 2002, This filing is available for review at the a notice of change in status in their pursuant to section 2.4 of the Settlement Commission or may be viewed on the respective rate dockets. Agreement filed on June 30, 2000, in Commission’s web site at http:// Comment Date: July 11, 2002. Docket No. ER00–1053–000, and www.ferc.gov using the ‘‘RIMS’’ link, accepted by the Federal Energy select ‘‘Docket #’’ and follow the 2. Lake Road Trust Ltd., Lake Road Generating Company, L.P. Regulatory Commission on September instructions (call 202–208–2222 for 15, 2000, Maine Public Service assistance). Protests and interventions [Docket No. EC02–80–000] Company (MPS) submited a correction may be filed electronically via the Take notice that on June 21, 2002, to its June 17, 2002 informational filing Internet in lieu of paper; see 18 CFR Lake Road Trust Ltd. (Lake Road Trust) that set forth the changed open access 385.2001(a)(1)(iii) and the instructions and Lake Road Generating Company, transmission tariff charges effective June on the Commission’s web site under the L.P. (Lake Road Gen), tendered for 1, 2002 together with back-up materials. ‘‘e-Filing’’ link. filing, pursuant to section 203 of the Copies of this filing were served on Comment Date: July 5, 2002. Federal Power Act, 16 U.S.C. § 824b the parties to the Settlement Agreement (1994), and part 33 of the Commission’s in Docket No. ER00–1053–000, the Linwood A. Watson, Jr., regulations, 18 CFR part 33, an Commission Trial Staff, the Maine Deputy Secretary. application to authorize an assignment Public Utilities Commission, the Maine [FR Doc. 02–16803 Filed 7–3–02; 8:45 am] of beneficial interests in Lake Road Public Advocate, and current MPS open Trust to Lake Road Gen. BILLING CODE 6717–01–P access transmission tariff customers. Comment Date: July 12, 2002. Comment Date: July 9, 2002. 3. Metcalf Energy Center, LLC 6. Ameren Services Company [Docket No. EG02–157–000] [Docket No. ER02–930–001] Take notice that on June 21, 2002, Take notice that on June 24, 2002, Metcalf Energy Center, LLC (Metcalf) Ameren Services Company (ASC) filed with the Federal Energy Regulatory tendered for filing an unexecuted Commission (Commission) an Network Integration Transmission
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Service Agreement and Network DEPARTMENT OF ENERGY The DEA contains the staff’s analysis Operating Agreement between ASC and of the potential environmental impacts City of Farmington, Missouri. ASC Federal Energy Regulatory of the dam remediation project and asserts that the purpose of the Commission contains measures to minimize those Agreement is to replace the unexecuted [Project Nos. 2942–005, 2931–002, 2941– impacts. The DEA concludes that the Agreements in Docket No. ER02–930– 002, 2932–003, and 2897–003] project, with recommended mitigation 000 with revised unexecuted measures, would not constitute a major Agreements. S.D. Warren Company; Notice of federal action that would significantly Comment Date: July 15, 2002. Availability of Final Environmental affect the quality of the human Impact Statement environment. 7. International Transmission Company A copy of the DEA is on file with the June 27, 2002. [Docket Nos. ER02–1576–001] Commission and is available for public In accordance with the National inspection. The DEA may also be Take notice that on June 24, 2002, Environmental Policy Act of 1969 and viewed on the Web at http:// International Transmission Company the Federal Energy Regulatory www.ferc.gov using the ‘‘RIMS’’ link— tendered a filing with the in response to Commission’s (FERC or Commission) select ‘‘Docket #’’ and follow the a deficiency letter from the Federal regulations, 18 CFR Part 380 (Order No. instructions (call 202–208–2222 for Energy Regulatory Commission 486, 52 FR 47897), the Office of Energy assistance), or at http://www.ferc.gov/ (Commission) issued on June 14, 2002, Projects staff has reviewed the hydro/docs/saludaea.pdf. in the above-referenced docket. The applications for new licenses for the Any comments must be filed by July Commission’s June 14, 2002 letter Dundee, Gambo, Little Falls, Mallison 15, 2002 and should be addressed to requested additional information and Falls, and the Saccarappa hydroelectric Magalie R. Salas, Secretary, Federal support from International projects, and has prepared a Final Energy Regulatory Commission, 888 Transmission Company regarding its Environmental Impact Statement (FEIS) First Street, NE., Washington, DC 20426. treatment of certain facilities in its for the projects. In the FEIS, the Please affix Project No. P–516 to all Generator Interconnection and Commission’s staff has analyzed the comments. Comments may be filed Operating Agreement with FirstEnergy potential environmental impacts of the electronically via the Internet in lieu of Generation Corp. as interconnection existing projects and has recommended paper. See 18 CFR 385.2001(a)(1)(iii) facilities. that approval of the projects, with and the instructions on the Comment Date: July 15, 2002. appropriate environmental protection Commission’s Web site under the ‘‘e- measures, would be in the public Filing’’ link. Standard Paragraph interest. For further information, contact John Copies of the FEIS are available for Mudre at (202) 219–1208 or Any person desiring to intervene or to review in the Public Reference Branch, protest this filing should file with the [email protected]. Room 2–A, of the Commission’s offices Linwood A. Watson, Jr., Federal Energy Regulatory Commission, at 888 First Street, NE., Washington, DC Deputy Secretary. 888 First Street, NE., Washington, DC 20426. 20426, in accordance with Rules 211 [FR Doc. 02–16837 Filed 7–3–02; 8:45 am] and 214 of the Commission’s Rules of Linwood A. Watson, Jr., BILLING CODE 6717–01–P Practice and Procedure (18 CFR 385.211 Deputy Secretary. and 385.214). Protests will be [FR Doc. 02–16802 Filed 7–3–02; 8:45 am] considered by the Commission in BILLING CODE 6717–01–P DEPARTMENT OF ENERGY determining the appropriate action to be taken, but will not serve to make Federal Energy Regulatory protestants parties to the proceeding. DEPARTMENT OF ENERGY Commission Any person wishing to become a party Federal Energy Regulatory [Project Nos. 6058–005 and 6059–006 New must file a motion to intervene. All such York] motions or protests should be filed on Commission or before the comment date, and, to the [Project No. 516, South Carolina] Hydro Development Group, Inc.; Notice extent applicable, must be served on the of Availability of Multi-Project applicant and on any other person South Carolina Electric & Gas Environmental Assessment designated on the official service list. Company; Notice of Availability of This filing is available for review at the Draft Environmental Assessment June 28, 2002. Commission or may be viewed on the In accordance with the National Commission’s web site at http:// June 28, 2002. Environmental Policy Act of 1969 and www.ferc.gov using the ‘‘RIMS’’ link, In accordance with the National the Federal Energy Regulatory select ‘‘Docket #’’ and follow the Environmental Policy Act of 1969 and Commission’s (Commission) instructions (call 202–208–2222 for the Federal Energy Regulatory regulations, 18 CFR part 380 (Order No. assistance). Protests and interventions Commission’s (Commission) 486, 52 FR 47897), the Office of Energy may be filed electronically via the regulations, 18 CFR part 380 (Order No. Projects has reviewed the applications Internet in lieu of paper; see 18 CFR 486, 52 FR 47897), the Office of Energy for licenses for the Hailesboro #4 385.2001(a)(1)(iii) and the instructions Projects has prepared a Draft Hydroelectric Project (P–6058–005), and on the Commission’s web site under the Environmental Assessment (DEA) for Fowler #7 Project (P–6059–006), located ‘‘e-Filing’’ link. the Saluda Dam Seismic Remediation on the Oswegatchie River in St. Project. The Saluda Dam is a part of the Lawrence County, New York, and has Linwood A. Watson, Jr., Saluda Project (FERC No. 516) and is prepared a multi-project Environmental Deputy Secretary. located on the Saluda River in Assessment (EA) for the projects. There [FR Doc. 02–16821 Filed 7–3–02; 8:45 am] Lexington, Richland, Newberry, and are no Federal lands or Indian BILLING CODE 6717–01–P Saluda counties, South Carolina. reservations occupied by projects’ works
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or located within the projects’ The Act authorizes FERC to accept a The EIS will consider a reasonable boundaries. hydropower license application from range of alternatives developed in The EA contains the staff’s analysis of Gustavus Electric Company (GEC) for response to issues raised through public the potential environmental impacts of the construction, operation and involvement and comment from the the project and concludes that licensing maintenance of the proposed 800 kW GEC pre-application scoping process the project, with appropriate Falls Creek Hydroelectric Project and any additional scoping occurring environmental protective measures, located within Glacier Bay National under this Notice of Intent. The would not constitute a major federal Park. GEC filed their application with potential range of alternatives will action that would significantly affect the FERC on October 23, 2001. include the proposed action as quality of the human environment. The Act authorizes the Secretary of described in the PDEA, a no action, a A copy of the EA is on file with the the Interior to exchange designated modified proposed action and Commission and is available for public wilderness land located in Glacier Bay alternative means of power generation inspection. The EA may also be viewed National Park to the State of Alaska that may be economically and on the web at http://www.ferc.gov using (State), for this project. This exchange is environmentally viable. the ‘‘RIMS’’ link—select ‘‘Docket #’’ and authorized if the Secretary of the The potential alternatives will follow the instructions (call 202–208– Interior concludes that the Falls Creek consider the issues previously identified 2222 for assistance). Hydroelectric Project can be constructed through GEC’s scoping and other issues Any comments should be filed within and operated without adversely identified in scoping for the EIS. The 30 days from the date of this notice and impacting the purposes and values of major issues are: (1) The impact of should be addressed to Magalie R. Salas, the park, as constituted after the land reduced water flow on the hydrologic Secretary, Federal Energy Regulatory exchange. The exchange is predicated regime, resident Dolly Varden, Commission, 888 First Street, NE, upon the State conveying to the United associated Falls Creek habitats, and Washington, DC 20426. Please affix States lands worthy of being included in aesthetics; (2) impacts to the Falls Creek Project No. 6058–005 and 6059–006 to the National Park System. To ensure uplands and wetlands from the access all comments. Comments may be filed this transaction maintains and penstock routes; (3) impacts of the electronically via the Internet in lieu of approximately the same amount of proposal on surrounding Glacier Bay paper. See 18 CFR 385.2001(a)(1)(iii) designated wilderness in the National National Park lands and waters; (4) and the instructions on the Wilderness Preservation System as effect of the proposal on the purposes Commission’s web site under the ‘‘e- currently exists, other land in Glacier and values of Glacier Bay National Park; Filing’’ link. Bay National Park and Preserve shall be (5) impacts on resources and recreation For further information, contact designated wilderness upon in the project area and surrounding Monte TerHaar at (202) 219–2768. consummation of the land exchange. lands resulting from a change in land This land shall be administered Linwood A. Watson, Jr., management from NPS to State according to the laws governing national administration; and (6) impacts of the Deputy Secretary. wilderness areas in Alaska. land exchange, including the removal of The federal actions under [FR Doc. 02–16840 Filed 7–3–02; 8:45 am] wilderness lands from Glacier Bay consideration in this EIS are whether to BILLING CODE 6717–01–P National Park wilderness and issue a license for construction, designation of wilderness lands operation and maintenance of the Falls elsewhere. DEPARTMENT OF ENERGY Creek Hydroelectric Project; the Scoping: The scoping conducted to exchange of federal land with state land; date by GEC under the FERC Alternative Federal Energy Regulatory and the removal of land from wilderness Commission; National Park Service, designation and designation of other Licensing Process and comments filed Department of the Interior land as wilderness. with FERC on the application apply and will be taken into account in the EIS. No [Project No. 11659–002 Alask] To prepare the license application, GEC followed the FERC alternative additional scoping meetings will be held. FERC and NPS are soliciting Gustavus Electric Company; Notice of licensing procedures. In accordance written comments from federal and state Intent to Prepare Environmental Impact with the FERC Regulations for Licensing agencies, local government, private Statement Hydroelectric Projects at 18 CFR 4.34 this included conducting a scoping organizations, recreational users, and June 28, 2002. process and preparing a preliminary the public. Notice of this comment Summary: The Federal Energy draft environmental assessment (PDEA). period will be announced in local and Regulatory Commission (FERC) and the The PDEA describes GEC’s scoping regional newspapers, including National Park Service (NPS) are jointly process and includes copies of Gustavus, Juneau and Anchorage. preparing an environmental impact comments received by GEC. DATES: Comments concerning the scope statement (EIS) in accordance with the The information and analysis from the of this project should be filed within 60 National Environmental Policy Act PDEA will be used, in conjunction with days of the issuance of this notice. The (NEPA) of 1969, and consistent with the other information, to prepare the EIS. A draft EIS is projected to be available in Council on Environmental Quality’s copy of the PDEA and license late 2002 or early 2003. guidelines, 40 CFR part 1500, on a application is on file with FERC and is Filing Information: FERC’s Rules of proposal to construct the Falls Creek available for public inspection. This Practice require all intervenors filing Hydroelectric Project (FERC No 11659– filing may be viewed on the web at documents with FERC to serve a copy 002). The Glacier Bay National Park http://www.ferc.gov using the ‘‘RIMS’’ of that document on each person on the Boundary Adjustment Act of 1998 [105 link—select ‘‘Docket #’’ and follow the official service list for the project. Public Law 317; 112 Stat. 3002 (1998)] instructions (call 202–208–2222 for Further, if an intervenor files comments (Act) specifies the NPS shall participate assistance). The PDEA and application or documents with FERC relating to the as a joint lead agency (with FERC) in the are also available from GEC, P.O. Box merits of an issue that may affect the development of this environmental 102, Gustavus, Alaska 99826, 907–697– responsibilities of a particular resource document. 2299. agency, they must also serve a copy of
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the document on that resource agency. a. Type of Application: New Major 385.2001(a)(1)(iii) and the instructions All documents (original and eight License. on the Commission’s Web site at http:/ copies) should be filed with Magalie R. b. Project No.: 1979–012. /www.ferc.fed.us/efi/doorbell.htm. n. Salas, Secretary, Federal Energy c. Date Filed: June 21, 2002. With this notice, we are initiating Regulatory Commission, 888 First d. Applicant: Wisconsin Public consultation with the Wisconsin State Street, NE, Washington, DC 20426. Service Corporation. Historic Preservation Officer (SHPO), as Comments may also be filed e. Name of Project: Alexander required by section 106, National electronically via the Internet in lieu of Hydroelectric Project. Historic Preservation Act, and the paper. See 18 CFR 385.2001(a)(1)(iii) f. Location: On the Wisconsin River regulations of the Advisory Council on and the instructions on the near the City of Merrill, Lincoln County, Historic Preservation, 36 CFR 800.4. Wisconsin. Commission’s web site (http:// o. Procedural schedule and final www.ferc.gov) under the ‘‘e-Filing’’ link. g. Filed Pursuant to: Federal Power Act 16 U.S.C. 791 (a)–825(r). amendments: The application will be If individuals submitting comments h. Applicant Contact: Mr. David W. processed according to the following request that their name and/or address Harpole, Wisconsin Public Service Hydro Licensing Schedule. Revisions to be withheld from public disclosure, the Corporation, 700 N. Adams Street, P.O. the schedule will be made if the request will be honored to the extent Box 19002, Green Bay, Wisconsin. Commission determines it necessary to allowable by law. Such requests must 54307 (920) 433–1264. do so. comply with Commission regulations i. FERC Contact: Michael Spencer, Issue Deficiency Letter—August 2002 (see 18 CFR 388.112). In particular, [email protected], (202) individuals requesting their name and/ 219–2846. Issue Acceptance letter—November or address be withheld from public j. Deadline for filing additional study 2002 disclosure must submit two versions of requests: August 20, 2002. Issue Scoping Document 1 for each filing: one with their name and/or All documents (original and eight comments—December 2002 address redacted from the document, copies) should be filed with: Magalie R. and one unredacted version of the Request Additional Information— Salas, Secretary, Federal Energy February 2003 document that includes the information Regulatory Commission, 888 First to be withheld and boldly indicating on Street, NE, Washington, DC 20426. Issue Scoping Document 2—March 2003 the front page ‘‘Contains Privileged The Commission’s Rules of Practice Notice of application is ready for Information—Do Not Release.’’ There require all intervenors filing documents environmental analysis—March 2003 also may be circumstances wherein the with the Commission to serve a copy of Notice of the availability of the draft FERC and NPS will withhold a that document on each person on the EA—September 2003 respondent’s identity to the extent official service list for the project. Notice of the availability of the final allowable by law. All submissions from Further, if an intervenor files comments EA—December 2003 organizations, businesses, or persons or documents with the Commission identifying themselves as relating to the merits of an issue that Ready for Commission’s decision on the representatives or officials of may affect the responsibilities of a application—December 2003 organizations and businesses will be particular resource agency, they must made available for public inspection. Final amendments to the application also serve a copy of the document on must be filed with the Commission no Anonymous comments will not be that resource agency. considered. later than 30 days from the issuance k. This application is not ready for date of the notice of ready for Any questions regarding this notice environmental analysis at this time. environmental analysis. may be directed to Bob Easton (FERC l. The existing Alexander Project representative) at (202) 219–2782 or consists of: (1) A dam, comprised of Linwood A. Watson, Jr., Bruce Greenwood (NPS representative) earthen embankments, an integral Deputy Secretary. at (907) 257–2623. powerhouse and a gated spillway; (2) a [FR Doc. 02–16838 Filed 7–3–02; 8:45 am] Linwood A. Watson, Jr., 803-acre reservoir; (3) a powerhouse BILLING CODE 6717–01–P with an total installed capacity of 4,200- Deputy Secretary. kilowatts and (4) appurtenant facilities. [FR Doc. 02–16841 Filed 7–3–02; 8:45 am] The applicant estimates that the average DEPARTMENT OF ENERGY BILLING CODE 6717–01–P annual generation is 23,550 mega- watthours. Federal Energy Regulatory m. Pursuant to Section 4.32(b)(7) of 18 Commission DEPARTMENT OF ENERGY CFR of the Commission’s regulations, if Federal Energy Regulatory any resource agency, Indian Tribe, or [Project No. 3615–002] Commission person believes that an additional scientific study should be conducted in Drew River Mill, Inc.; Notice of Site Notice of Application Tendered for order to form an adequate factual basis Visit for a complete analysis of the Filing with the Commission, Soliciting June 28, 2002. Additional Study Requests, and application on its merit, the resource Establishing Procedural Schedule for agency, Indian Tribe, or person must file The staff of the Office of Energy Relicensing and a Deadline for a request for a study with the Projects (OEP) will be conducting a site Submission of Final Amendments Commission not later than 60 days from visit for the Branch River Mill Project the date of filing of the application, and (Project) on August 1, 2002. June 28, 2002. serve a copy of the request on the Representative(s) of Drew River Mill, Take notice that the following applicant. Inc. will accompany the OEP staff. All hydroelectric application has been filed Additional study requests may be interested parties may meet at 9:30 a.m. with the Commission and is available filed electronically via the internet in at the Project dam. Attendees must for public inspection. lieu of paper. See 18 CFR provide their own transportation.
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For further information, please contact the prohibited off-the-record requires. Any person identified below as Commission’s Office of External Affairs at 1– communication relevant to the merits of having made a prohibited off-the-record 866–208–FERC. a contested on-the-record proceeding, to communication should serve the Linwood A. Watson, Jr., deliver a copy of the communication, if document on all parties listed on the Deputy Secretary. written, or a summary of the substance official service list for the applicable [FR Doc. 02–16839 Filed 7–3–02; 8:45 am] of any oral communication, to the proceeding in accordance with Rule BILLING CODE 6717–01–P Secretary. 2010, 18 CFR 385.2010. Prohibited communications will be Exempt off-the-record included in a public, non-decisional file communications will be included in the DEPARTMENT OF ENERGY associated with, but not part of, the decisional record of the proceeding. decisional record of the proceeding, Federal Energy Regulatory Unless the Commission determines that unless the communication was with a Commission the prohibited communication and any cooperating agency as described by 40 CFR 1501.6, made under 18 CFR [Docket No. RM98–1–000] responses thereto should become part of the decisional record, the prohibited off- 385.2201(e)(1)(v). Regulations Governing Off-the-Record the-record communication will not be The following is a list of exempt and Communications; Public Notice considered by the Commission in prohibited off-the-record reaching its decision. Parties to a communications recently received in June 28, 2002. proceeding may seek the opportunity to the Office of the Secretary. Copies of This constitutes notice, in accordance respond to any facts or contentions this filing are on file with the with 18 CFR 385.2201(h), of the receipt made in a prohibited off-the-record Commission and are available for public of exempt and prohibited off-the-record communication, and may request that inspection. The documents may be communications. the Commission place the prohibited viewed on the web at http:// Order No. 607 (64 FR 51222, communication and responses thereto www.ferc.gov using the ‘‘RIMS’’ link, September 22, 1999) requires in the decisional record. The select ‘‘Docket#’’ and follow the Commission decisional employees, who Commission will grant such requests instructions (call 202–208–2222 for make or receive an exempt or a only when it determines that fairness so assistance).
Docket No. Date Filed Presenter or Requester
Exempt 1. CP01–415–000 ...... 6–20–02 Bill Carrico 2. CP01–415–000 ...... 6–20–02 Olen L. Gallimore 3. CP01–415–000 ...... 6–20–02 Calvin H. Web 4. Project No. 1494–000 ...... 6–25–02 Jim Burroughs 5. Project No. 2659–000 ...... 6–25–02 Nancy Kochan 6. Project No. 10100–000 ...... 6–25–02 Bonnie B. Bunning 7. CP01–361–000 ...... 6–26–02 Nancy Morris
Linwood A. Watson, Jr., ICR Number 1910.02, OMB Control No. public is invited to voluntarily respond Deputy Secretary. 2030–0039 expiring 12/31/02. Before to specific questions regarding [FR Doc. 02–16842 Filed 7–3–02; 8:45 am] submitting the ICR to OMB for review anticipated procurements or to provide BILLING CODE 6717–01–P and approval, EPA is soliciting comments to EPA. Comments received comments on specific aspects of the are used by the Agency for acquisition proposed information collection as planning purposes. An agency may not ENVIRONMENTAL PROTECTION described below. conduct or sponsor, and a person is not AGENCY DATES: Comments must be submitted on required to respond to, a collection of or before September 3, 2002. information unless it displays a [FRL–7241–9] ADDRESSES: Ariel Rios Building, 1200 currently valid OMB control number. Pennsylvania Avenue NW, Attn: 3802R, The OMB control numbers for EPA’s Agency Information Collection Washington, DC 20460. regulations are listed in 40 CFR part 9 Activities: Proposed Collection; and 48 CFR Chapter 15. Comment Request; Synopses of FOR FURTHER INFORMATION OR A COPY CONTACT: Jill Robbins, (202) 564–1052, The EPA would like to solicit Proposed Contract Actions and Market comments to: Research Questions email: [email protected] SUPPLEMENTARY INFORMATION: (i) Evaluate whether the proposed AGENCY: Environmental Protection Affected entities: Entities potentially collection of information is necessary Agency (EPA). affected by this action are those which for the proper performance of the ACTION: Notice. seek to provide supplies and services to functions of the agency, including EPA. Title: Synopsis of Proposed whether the information will have SUMMARY: In compliance with the Contract Actions and Market Research practical utility; Paperwork Reduction Act (44 U.S.C. Questions (OMB Control Number 2030– (ii) Evaluate the accuracy of the 3501 et seq.), this document announces 0039 ; EPA ICR No. 1910.02) expiring agency’s estimate of the burden of the that EPA is planning to submit the 12/31/02. proposed collection of information, following continuing Information Abstract: EPA frequently publicizes including the validity of the Collection Request (ICR) to the Office of anticipated contract actions in methodology and assumptions used; Management and Budget (OMB): accordance with FAR Part 5, and also (iii) Enhance the quality, utility, and Synopses of Proposed Contract Actions conducts market research in accordance clarity of the information to be and Market Research Questions, EPA with FAR Part 10. In both instances, the collected; and
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(iv) Minimize the burden of the 0095, current expiration date March 31, Title: Construction Grants Delegation collection of information on those who 2003. Before submitting the ICR to OMB to States; OMB No. 2040 0095; EPA ICR are to respond, including through the for review and approval, EPA is No. 0909.07 expiring 3/31/2003. use of appropriate automated electronic, soliciting comments on specific aspects Abstract: The purpose of this ICR is to mechanical, or other technological of the proposed information collection revise and extend the current clearance collection techniques or other forms of as described below. for the collection of information under the Construction Grants Program information technology, e.g., permitting DATES: Comments must be submitted on Delegation to States, 40 CFR part 35, electronic submission of responses. or before September 3, 2002. Burden Statement: The annual public subpart J, and Title II of the Clean Water reporting and record keeping burden for ADDRESSES: Gajindar Singh, Office of Act (CWA). While the Construction this collection of information is Wastewater Management, Mail Code Grants Program is being phased out and estimated to average 3.25 hours per 4204M, U.S. Environmental Protection replaced by the State Revolving Loan response. It is estimated that any Agency, 1200 Pennsylvania Ave., NW., Fund (SRF) program, collection individual may respond to synopses or Washington, DC 20460. Interested activities for the Construction Grants market research questions 5 times per persons may obtain a copy of the ICR Program must continue until program year. EPA anticipates publicizing without charge by writing to the completion. The program includes approximately 250 contract actions per preceding address. reporting, monitoring, and program year, and conducting 3800 market FOR FURTHER INFORMATION CONTACT: requirements for municipalities and research inquiries. Burden means the Gajindar Singh, Telephone Number: delegated States. The information collection activities total time, effort, or financial resources (202) 564–0634 , Facsimile Number: described in this ICR are authorized expended by persons to generate, (202) 501–2396, E-mail: under section 205(g) of the Clean Water maintain, retain, or disclose or provide [email protected]. information to or for a Federal agency. Act as amended, 33 U.S.C. 1251 et seq., This includes the time needed to review SUPPLEMENTARY INFORMATION: and under 40 CFR part 35, subpart J. instructions; develop, acquire, install, Comments: Comments shall be The requested information provides the and utilize technology and systems for submitted to Gajindar Singh, Mail Code minimum data necessary for the Federal the purposes of collecting, validating, 4204M, Environmental Protection government to maintain appropriate and verifying information, processing Agency, Office of Wastewater fiscal accountability for use of section and maintaining information, and Management, 1200 Pennsylvania Ave., 205(g) construction grant funds. The disclosing and providing information; NW., Washington, DC 20460. information is also needed to assure an adjust the existing ways to comply with Commenters who want EPA to adequate management overview of those any previously applicable instructions acknowledge receipt of their comments State project review activities that are and requirements; train personnel to be should enclose a self-addressed stamped most important to fiscal and project able to respond to a collection of envelope. Comments may also be integrity, design performance, Federal information; search data sources; submitted electronically to budget control, and attainment of complete and review the collection of [email protected] or faxed to (202) national goals. Managers at the State and Federal information; and transmit or otherwise 501–2396. levels both rely on the information disclose the information. Electronic comments must be described in this ICR. State managers submitted as a Word Perfect or Word Dated: June 28, 2002. rely on the information for their own file. Electronic comments must be Leigh Pomponio, program and project administration. identified by the use of words Manager, Policy and Oversight Service Center. Federal managers rely on this ‘‘Construction Grants Delegation information to assess, control, and [FR Doc. 02–16856 Filed 7–3–02; 8:45 am] Comments.’’ No Confidential Business predict the impacts of the construction BILLING CODE 6560–50–P Information (CBI) should be submitted grants program on the Federal Treasury. through e-mail. Comments and data will Federal managers also use this also be accepted on disks in Corel Word ENVIRONMENTAL PROTECTION information to respond to OMB and Perfect or Word file. The record for this AGENCY Congressional requests and to maintain proposed ICR renewal has been fiscal accountability. In addition, [FRL–7242–1] established in the Office of Wastewater builders of wastewater treatment plants Management, Municipal Assistance may use the information discussed in Agency Information Collection Branch, and includes supporting Activities: Proposed Collection; this ICR. documentation. It does not include any An agency may not conduct or Comment Request; Construction information claimed as CBI. The record Grants Delegation to States sponsor, and a person is not required to is available for inspection from 9:00 respond to, a collection of information AGENCY: Environmental Protection a.m. to 4:00 p.m., Monday through unless it displays a currently valid OMB Agency (EPA). Friday, excluding legal holidays, at the control number. The OMB control Municipal Assistance Branch, 1201 ACTION: Notice. numbers for EPA’s regulations are listed Constitution Ave., NW., Washington, in 40 CFR part 9 and 48 CFR chapter 15. SUMMARY: In compliance with the DC 20460. For access to the docket The EPA would like to solicit Paperwork Reduction Act (44 U.S.C. materials, please call (202) 564–0634 to comments to: 3501 et seq.), this document announces schedule an appointment. (i) evaluate whether the proposed that EPA is planning to submit the Affected entities: Entities potentially collection of information is necessary following continuing Information affected by this action are States which for the proper performance of the Collection Request (ICR) to the Office of administer elements of the construction functions of the agency, including Management and Budget (OMB): grants program under a delegation whether the information will have Construction Grants Delegation to States agreement with EPA and municipalities practical utility; Information Collection Request, EPA which received construction grants from (ii) evaluate the accuracy of the ICR No. 0909.07 and Control No. 2040– EPA. agency’s estimate of the burden of the
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proposed collection of information, 3501 et seq.), this document announces actions. No confidential information is including the validity of the that the following Information being collected under this ICR. methodology and assumptions used; Collection Requests (ICRs) have been Burden Statement: Affected Entities: (iii) enhance the quality, utility, and forwarded to the Office of Management Entities potentially affected by this clarity of the information to be and Budget (OMB) for review and action are persons who have collected; and approval: Superfund Orphan Share participated in the orphan share (iv) minimize the burden of the Compensation Reform Survey ICR, EPA compensation reform. collection of information on those who ICR 2035.01; Superfund De Minimis Estimated Number of Respondents: are to respond, including through the Settlement Reform Survey ICR, EPA ICR 300. use of appropriate automated electronic, 2036.01; and PRP Oversight Reform Frequency of Response: One time. mechanical, or other technological Survey ICR, EPA ICR 2037.01. The ICRs Estimated Total Annual Burden: 825 collection techniques or other forms of describe the nature of the information hours. information technology, e.g., permitting collection and their expected burden Estimated Total Annual Cost Burden: electronic submission of responses. and costs; and they include the actual $25,403. Burden Statement: Respondents: data collection instrument. Title: (2) Superfund De Minimis States and municipalities. DATES: Comments must be submitted on Settlement Reform Survey ICR, EPA ICR Estimated Number of Respondents: or before August 5, 2002. No. 2036.01. This is a new collection. 15. ADDRESSES: Send comments, referencing Abstract: This voluntary one-time Frequency of Response: 47 per year. information collection is for a survey of Responses Per Respondent: 2.6 per EPA ICR Nos. 2035.01, 2036.01 and/or de minimis settlement reform year. 2037.01, to the following addresses: Estimated Total Annual Hour Burden: Susan Auby, U.S. Environmental participants who were offered a de 2,297 hours. Protection Agency, Collection Strategies minimis settlement as part of the Average Burden Hours Per Response: Division (Mail Code 2822), 1200 reform. The survey will be administered 52.5. Pennsylvania Avenue, NW., to a non-random sample consisting of Estimated Total Annualized Cost Washington, DC 20460–0001; and to one-fifth (20 percent) of the settlors and Burden: $98,432. Office of Information and Regulatory one-fifth (20 percent) of the non-settlors Burden means the total time, effort, or Affairs, Office of Management and for each offer extended by the Agency, financial resources expended by persons Budget (OMB), Attention: Desk Officer subject to a minimum of three offerees to generate, maintain, retain, disclose or for EPA, 725 17th Street, NW., in each category. The information will provide information to or for a Federal Washington, DC 20503. not be generalized to the population of agency. This includes the time needed FOR FURTHER INFORMATION CONTACT: For relevant offerees. The information to review instructions; develop, acquire, a copy of the ICR contact Susan Auby collected from this survey will be used install, and utilize technology and at EPA by phone at (202) 566–1672, by in a broader evaluation of the de systems for the purposes of collecting, e-mail at [email protected], or minimis settlement reform’s overall validating, and verifying information, download off the Internet at http:// effectiveness in achieving the goals of processing and maintaining www.epa.gov/icr and refer to EPA ICR the reform (promoting early settlement information, and disclosing and Nos. 2035.01, 2036.01 and/or 2037.01. with small waste contributors and providing information; adjust the For technical questions about any of the minimizing their legal transaction costs) existing ways to comply with any ICRs contact Bruce Pumphrey by phone and to identify any changes necessary to previously applicable instructions and at 202–564–6076 or by e-mail at achieve these goals. No confidential requirements; train personnel to be able [email protected]. information is being collected under to respond to a collection of SUPPLEMENTARY INFORMATION: this ICR. information; search data sources; Title: (1) Superfund Orphan Share Respondents/Affected Entities: complete and review the collection of Compensation Reform Survey ICR, EPA Entities potentially affected by this information; and transmit or otherwise ICR No. 2035.01. This is a new action are persons who have disclose the information. collection. participated in the de minimis settlement reform. Dated: June 26, 2002. Abstract: This voluntary one-time Estimated Number of Respondents: James A. Hanlon, information collection is for a survey of orphan share compensation reform 347. Director, Office of Wastewater Management. participants who were offered orphan Frequency of Response: One time. [FR Doc. 02–16860 Filed 7–3–02; 8:45 am] share compensation as part of the Estimated Total Annual Hour Burden: BILLING CODE 6560–50–P reform. The survey will be administered 1041 hours. to a non-random sample consisting of Estimated Total Annual Cost Burden: $32,743. ENVIRONMENTAL PROTECTION one-third (33 percent) of the settlors and AGENCY one-third (33 percent) of the non-settlors Title: (3) Superfund PRP Oversight for each offer extended by the Agency, Reform Survey ICR, EPA ICR No. [FRL–7242–2] subject to a minimum of three offerees 2037.01. This is a new collection. in each category. The information will Abstract: This voluntary one-time Agency Information Collection not be generalized to the population of information collection is for a survey of Activities: Submission for OMB relevant offerees. The information parties that did work during FY00 under Review; Comment Request; Superfund collected from this survey will be used settlement agreements with EPA that Administrative Reform Surveys in a broader evaluation of the orphan provide for payment of oversight costs. AGENCY: Environmental Protection share compensation reform’s overall The survey will be administered to all Agency (EPA). effectiveness. The information will also of the approximately 210 potential ACTION: Notice. be used to identify any revisions to the respondents that are willing to reform necessary to achieve the goal of voluntarily participate. The information SUMMARY: In compliance with the promoting settlements with responsible collected from this survey will be used Paperwork Reduction Act (44 U.S.C. parties to perform or pay for response in a broader evaluation of the PRP
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Oversight Reform’s overall effectiveness Dated: June 27, 2002. Media),’’ OMB Control No. 2050–0161; in promoting effective and efficient PRP Oscar Morales, EPA ICR No. 1775.03, expiration date oversight and identifying best practices Director, Collection Strategies Division. June 30, 2002. This is a request for which could be more widely applied to [FR Doc. 02–16861 Filed 7–3–02; 8:45 am] extension of a currently approved meet the reform’s goals and objectives. BILLING CODE 6560–50–P collection. No confidential information is being Abstract: All information collection collected under this ICR. activities required by this rule are authorized by sections 3004 and 3005 of Respondents/Affected Entities: ENVIRONMENTAL PROTECTION the Solid Waste Disposal Act of 1970, as Entities potentially affected by this AGENCY amended by the Resource Conservation action are parties that did work during [FRL–7242–3] and Recovery Act of 1976 (RCRA), as FY00 under settlement agreements with amended by the Hazardous and Solid EPA that provide for payment of Agency Information Collection Waste Amendments of 1984 (HSWA), 42 oversight costs. Activities: Submission for OMB U.S.C. 6912(a), 6921, 6924, 6925, 6926, Estimated Number of Respondents: Review; Comment Request; Hazardous Remediation Waste Management and 6927. EPA believes the information 210. Requirements (HWIR-Media) collection for this rule is necessary to Frequency of Response: One time. balance streamlined regulations of AGENCY: Environmental Protection remediation wastes with the Agency’s Estimated Total Annual Hour Burden: Agency (EPA). responsibility to protect human health 682. ACTION: Notice. and the environment. The respondents Estimated Total Annual Cost Burden: are primarily owners or operators of $21,848. SUMMARY: In compliance with the facilities that wish to voluntarily clean An agency may not conduct or Paperwork Reduction Act (44 U.S.C. up contamination of their site. The sponsor, and a person is not required to 3501 et seq.), this document announces information to be collected includes the respond to, a collection of information that the following Information name, location and other identifying Collection Request (ICR) has been unless it displays a currently valid OMB information for the site, a chemical and forwarded to the Office of Management control number. The OMB control physical analysis of the waste or and Budget (OMB) for review and numbers for EPA’s regulations are listed contaminated media to be managed, approval: ‘‘Hazardous Remediation in 40 CFR part 9 and 48 CFR Chapter along with a plan for the management Waste Management Requirements 15. The Federal Register document of such materials sufficient to determine (HWIR-Media),’’ EPA ICR Number required under 5 CFR 1320.8(d), whether the management of these 1775.03; OMB Control Number 2050– soliciting comments on this collection materials will be protective of human 0161; expiration date June 30, 2002. The of information was published on health and the environment and will be ICR describes the nature of the November 9, 2001 (66 FR 56670). No in compliance with standards information collection and its expected comments were received. Burden established pursuant to RCRA. burden and cost; where appropriate, it Statement: The annual reporting and An agency may not conduct or includes the actual data collection recordkeeping burden for this collection sponsor, and a person is not required to instrument. of information is estimated to average 3 respond to, a collection of information hours per response. Burden means the DATES: Comments must be submitted on unless it displays a currently valid OMB total time, effort, or financial resources or before August 5, 2002. control number. The OMB control expended by persons to generate, ADDRESSES: Send comments, referencing numbers for EPA’s regulations are listed maintain, retain, or disclose or provide EPA ICR No. 1775.03 and OMB Control in 40 CFR part 9 and 48 CFR Chapter information to or for a Federal agency. No. 2050–0161, to the following 15. The Federal Register document required under 5 CFR 1320.8(d), This includes the time needed to review addresses: Susan Auby, U.S. soliciting comments on this collection instructions; develop, acquire, install, Environmental Protection Agency, of information was published on March and utilize technology and systems for Collection Strategies Division (Mail 20, 2002 (67 FR 12988); no comments the purposes of collecting, validating, Code 2822T), 1200 Pennsylvania were received. Avenue, NW., Washington, DC 20460– and verifying information, processing Burden Statement: The annual public 001; and to Office of Information and and maintaining information, and reporting and record keeping burden for disclosing and providing information; Regulatory Affairs, Office of this collection of information is adjust the existing ways to comply with Management and Budget (OMB), estimated to average about 28 hours per any previously applicable instructions Attention: Desk Officer for EPA, 725 response. Burden means the total time, and requirements; train personnel to be 17th Street, NW., Washington, DC effort, or financial resources expended able to respond to a collection of 20503. by persons to generate, maintain, retain, information; search data sources; FOR FURTHER INFORMATION CONTACT: For or disclose or provide information to or complete and review the collection of a copy of the ICR contact Susan Auby for a Federal agency. This includes the information; and transmit or otherwise at EPA by phone at (202) 260–4901, by time needed to review instructions; disclose the information. e-mail at [email protected] develop, acquire, install, and utilize Send comments on the Agency’s need or download a copy of the ICR off the technology and systems for the purposes for this information, the accuracy of the Internet at http://www.epa.gov/icr and of collecting, validating, and verifying provided burden estimates, and any refer to EPA ICR No. 1775.03. For information, processing and suggested methods for minimizing technical questions about the ICR maintaining information, and disclosing respondent burden, including through contact Mike Fitzpatrick at EPA by and providing information; adjust the the use of automated collection phone at (703) 308–8411 or by e-mail at existing ways to comply with any techniques to the addresses listed above. [email protected]. previously applicable instructions and Please refer to EPA ICR Nos. 2035.01, SUPPLEMENTARY INFORMATION: requirements; train personnel to be able 2036.01 and/or 2037.01 in any Title: ‘‘Hazardous Remediation Waste to respond to a collection of correspondence. Management Requirements (HWIR- information; search data sources;
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complete and review the collection of of Five Hydroelectric Projects for Chamblee, Dekalb County, GA, Wait information; and transmit or otherwise Construction and Operation, Dundee Period Ends: August 05, 2002, Contact: disclose the information. Project (FERC No. 2942); Gambo Project Phil Youngberg (404) 562–0787. Respondents/Affected Entities: (FERC No. 2931); Little Falls Project EIS No. 020280, FINAL EIS, FRC, MI, Facility Owners and Operators of (FERC No. 2932); Mallison Falls Project WI, Bond Falls Project, Issuing a New Hazardous Remediation Waste (FERC No. 2941) and Saccarappa Project License for Existing Hydroelectric Management Sites. (FERC No. 2897), Cumberland County, Estimated Number of Respondents: ME, Wait Period Ends: August 05, 2002, License, (FERC No. 1864–005) 176. Contact: Allan Creamer (202) 219–0365. Ontonagon River Basin, Ontonagon and Frequency of Response: Once. This document is available on the Gogebic Counties, MI and Vilas County, Estimated Total Annual Hour Burden: Internet at: http://www.ferc.fed.us/ WI, Wait Period Ends: August 05, 2002, 4,959 hours. online/rims.htm. Contact: Patrick K. Murphy (202) 219– Estimated Total Annualized Capital, EIS No. 020273, FINAL EIS, FHW, NE, 2659. This document is available on the Operating/ Maintenance Cost Burden: Lincoln South and East Beltways Internet at: http://www.ferc.fed.us/ $334. Project, Circumferential Transportation online/rims.htm. Send comments on the Agency’s need System Completion linking I–80 on the EIS No. 020281, DRAFT EIS, USA, for this information, the accuracy of the north and US 77 on the west, Funding provided burden estimates, and any UT, Activities Associated with Future and US Army COE Section 404 Permit Programs at US Army Dugway Proving suggested methods for minimizing and NPDES Permit Issuance, Lancaster Ground, Implementation, Tooele and respondent burden, including through County, NE, Wait Period Ends: August Jaub Counties, UT, Comment Period the use of automated collection 05, 2002, Contact: Edward Kosola (402) techniques to the addresses listed above. 437–5973. Ends: August 19, 2002, Contact: Please refer to EPA ICR No. 1775.03 and EIS No. 020274, DRAFT EIS, BLM, Nicholas J. Cavallaro (703) 697–8995. OMB Control No. 2050–0161 in any AK, Renewal of Federal Grant for the EIS No. 020282, FINAL EIS, COE, NJ, correspondence. Trans-Alaska Pipeline System, Right-of- Meadowlands Mills Project, Dated: June 27, 2002. Way, Approval, AK, Comment Period Construction of a Mixed-Use Oscar Morales, Ends: August 20, 2002, Contact: Rob Commercial Development, Permit Director, Collection Strategies Division. McWhorter (907) 257–1355. Application Number 95–07–440–RS, US [FR Doc. 02–16862 Filed 7–3–02; 8:45 am] EIS No. 020275, DRAFT EIS, GSA, WI, Army COE Section 10 and 404 Permit Badger Army Ammunition Plant, BILLING CODE 6560–50–P Issuance, Boroughs of Carlstadt and Property Disposal, Implementation, Monnachie, Township of South Townships of Sumpter and Merrimac, Hackensack, Bergen County, NJ, Wait Sauk County, WI, Comment Period ENVIRONMENTAL PROTECTION Period Ends: August 05, 2002, Contact: AGENCY Ends: August 19, 2002, Contact: Mark N. Lundgren (312) 353–0302. Steven Schumach (212) 264–0183. [ER–FRL–6630–8] EIS No. 020276, FINAL EIS No. 020283, FINAL EIS, FTA, WA, SUPPLEMENT, FRC, WA, Condit Sound Transit, Lakewood-to-Tacoma Environmental Impact Statements; Hydroelectric (No. 2342) Project, Notice of Availability Commuter Rail and WA–512 Park and Updated Information concerning an Ride Expansion, Construction and Responsible Agency: Office of Federal Application to Amend the Current Operation, Central Puget Sound Activities, General Information (202) License to Extend the License Term to Regional Transit Authority, City of 564–7167 or http://www.epa.gov/ October 1, 2006, White Salmon River, Tacoma and City of Lakewood, WA, compliance/nepa/.Weekly receipt of Skamania and Klickitat Counties, WA, Wait Period Ends: August 05, 2002, Environmental Impact Statements Filed Wait Period Ends: August 05, 2002, Contact: Rick Krochalis (206) 220–7954. June 24, 2002 Through June 28, 2002 Contact: Nicholas Jayjack (202) 219– Pursuant to 40 CFR 1506.9. 2825. EIS No. 020284, FINAL EIS, AFS, MT, EIS No. 020270, DRAFT EIS No. 020277, DRAFT EIS, FHW, White Pine Creek Project, Timber SUPPLEMENT, NRC, PA, Peach Bottom NC, US–17 Interstate Corridor Harvest, Prescribe Fire Burning, Atomic Power Station Unit 2 and 3, Improvements, south of NC–1127 Watershed Restoration and Associated Renewal of the Operating License for (Possum Track Road) to north of NC– Activities, Implementation, Kootenai Nuclear Plants, NUREG–1437 1418 (Roberson Road) Funding and National Forest, Cabinet Ranger District, Supplement 10, Located on the Banks of Permit Issuance, City of Washington and Sanders County, MT, Wait Period Ends: the Susquehanna River, York County, Town of Chocowinity Vicinity, Beaufort August 05, 2002, Contact: John Gubel PA, Comment Period Ends: September and Pitt Counties, NC, Comment Period (406) 827–3533. 17, 2002, Contact: Duke Wheeler (301) Ends: August 30, 2002, Contact: Dated: July 1, 2002. 415–1444. Nicholas L. Graf (919) 856–4346. EIS No. 020271, DRAFT EIS No. 020278, DRAFT EIS, FHW, B. Katherine Biggs, SUPPLEMENT, COE, KS, John Redmond NY, NY–17 Highway Reconstruction, Associate Division Director, NEPA Lake (JRL) Reallocation of Water Supply Bridge Reconstruction and Compliance Division, Office of Federal Storage Project, Equitable Redistribution Modification, Funding and US Army Activities. of Water Storage between the Flood COE Section 404 Permit Issuance, Town [FR Doc. 02–16875 Filed 7–3–02; 8:45 am] Control Pool and the Conservation and Village of Horseheads, Chemung BILLING CODE 6560–50–P Pools, Neosho River, Marion and County, NY, Comment Period Ends: Council Grove Lakes, Coffey and Lyon August 19, 2002, Contact: Robert E. Counties, KS, Comment Period Ends: Arnold (518) 431–4127. August 19, 2002, Contact: James C. EIS No. 020279, FINAL EIS, GSA, GA, Randolph (918) 669–4396. Chamblee Campus Centers for Disease EIS No. 020272, FINAL EIS, FRC, ME, Control and Prevention (CDC) Presumpscot River Projects, Relicensing Expansion, Atlanta Metro Area, City of
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ENVIRONMENTAL PROTECTION X. Pre-Application Assistance would be through the establishment of AGENCY XI. Fields in the EPA Data Base a Web data base that would provide I. Statutory Authority information on new and emerging air [AD–FRL–7242–4] pollution technologies. Air pollution The statutory authority for this action technologies include methods, Request for Applications for is Clean Air Act Section 103(b)3. The Cooperative Agreement: New and procedures, or devices, developed in the Catalog of Federal Domestic Assistance U.S. or abroad, that are used to: monitor Emerging Air Technologies (NEAT) (CFDA) Number is 66.606. Web Data Base air quality; control or prevent air II. Background pollution; analyze air pollution and AGENCY: Environmental Protection related impacts; or test, monitor and Section 108(h) of the Clean Air Act Agency (EPA). verify compliance. This new Web data (the Act) Amendments of 1990, ‘‘RACT/ ACTION: Notice; request for applications. base would complement the existing BACT/LAER Clearinghouse’’ (RBLC), RBLC Web that contains data on air requires that the Administrator of EPA SUMMARY: This request for applications permit emission limits and technology make information regarding emission (RFA) solicits proposals to develop, decisions that have already been made. control technology available to States maintain, promote and sustain a New To be successful the NEAT Web needs and the general public through a central and Emerging Air Technologies (NEAT) to: data base on the World Wide Web data base. As prescribed in the Act, the 1. Rely on coordination and (Web). The purpose of this Web site is primary sources for this information are communications with air pollution to aid industry, contractors, and State permits to construct new and/or technology developers and suppliers; and local air permitting agencies in modified major stationary sources 2. List supplier and vender identifying new and emerging air issued by State and local agencies. information on a public Web page; technologies. These technologies need These permits are part of the New 3. Provide links to commercial sites; to be addressed in major permitting Source Review (NSR) program legislated and actions. They also need to be considered by Congress in parts C and D of Title I 4. Promote the NEAT Web site and its by State and local air pollution agencies of the Act. These permitting actions capabilities. and tribes in implementing programs to require that the applicants propose and The EPA believes that these activities maintain and improve ambient air that permitting agencies determine, on a are essential to the creation and quality and protect public health. case-by-case basis, Best Available maintenance of this new Web site, and DATES: The opening date of the Control Technology (BACT) or Lowest will be very beneficial to the public. solicitation is July 5, 2002. Letters of Achievable Emission Rate (LAER) for These essential activities can best be intent to apply must be postmarked, or emission sources locating in attainment accomplished by an independent sent via electronic mail (E-mail), no (meets National Ambient Air Quality organization or institution with an later than August 5, 2002. The closing Standards) and nonattainment areas, existing presence on the Web, and a date of the solicitation is November 1, respectively. reputation for expertise in the field of 2002. In 1993, the Clean Air Act Advisory air pollution. The EPA also believes that Committee (CAAAC) recommended that this proposed air pollution technology ADDRESSES: Official Mailing Address: the RBLC provide information on new NEAT Project, Attn: Bob Blaszczak data base could generate revenue and and emerging air pollution prevention sustain itself over time once it has been (E143–03), U.S. EPA, OAQPS, ITPID, and control technologies in addition to ITG, Research Triangle Park, NC 27711. established (i.e., venders and suppliers NSR permit technology decisions. The would be willing to pay a nominal fee Courier Address: NEAT Project, Attn: CAAAC is made up of representatives Bob Blaszczak (E143–03), U.S. EPA, to list their technologies and/or provide from industry, State and local linkage to a vender/supplier Web site or OAQPS, ITPID, ITG, 4930 Old Page permitting agencies, and environmental Road, Research Triangle Park, NC E-mail). The EPA expects to negotiate a organizations. The information on new program income plan with the 27709. E-mail Address: and emerging technologies would be [email protected]. successful offeror that will ensure long used by all of these groups, tribes and term sustainability. (See 40 CFR FOR FURTHER INFORMATION CONTACT: Mr. the public at large to expedite the NSR 30.24(b)(1) and (h)) Bob Blaszczak, Information Transfer permitting process. This permit process This project directly benefits all Group (E143–03), Information Transfer requires: parties (industry, contractors, State and & Program Integration Division, Office 1. Preparation of a comprehensive local agencies, and the general public) of Air Quality Planning & Standards, permit application by industry (or their involved in the development, review Office of Air & Radiation, U.S. EPA, contractors) that addresses emission and processing of NSR permit Research Triangle Park, NC 27711. control and prevention options and applications and permits. Funds cannot Telephone (919) 541–5432, Fax (919) recommends the best technology (the be awarded for projects intended for the 541–0242, E-mail application also must include analyses direct use and benefit of the Federal [email protected]. of potential air quality and other Government. environmental impacts, air quality SUPPLEMENTARY INFORMATION: The III. Funding following outline is provided to aid in monitoring data or a plan to acquire it, locating information in this notice: and compliance verification The amount of Federal funds procedures); available is $ 300,000 and the number I. Statutory Authority 2. Review and processing of permit of individual awards is one. All revenue II. Background applications and issuance of permits by generated by the operation of the NEAT III. Funding IV. Duration State or local permitting agencies and Web site shall be used to maintain, V. Eligibility tribes that require best technology; and improve, and sustain the NEAT Web VI. Description/Scope 3. Public review and comment on the site. VII. Review and Selection Process permit and technology requirements. Funds awarded under this agreement VIII. Additional Considerations The EPA has concluded that the best may not be used to solicit user feedback IX. How to Apply way to address this recommendation or conduct user surveys. Non-Federal
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funds must be used for such activities. the awardee in developing and this Web data base as a relevant and However, funds awarded under this maintaining the Web site. However, reliable information source. Funds agreement may be used to analyze discussions regarding EPA collaboration awarded under this agreement may not information derived from user feedback will not take place until the final be used to solicit user feedback or mechanisms and surveys specifically negotiation phase of the cooperative conduct user surveys. Non-Federal related to the implementation of the agreement. funds must be used for such activities. NEAT Web site. The EPA reserves the right to reject all However, funds awarded under this The EPA shall provide applicants that applications and proposals and make no agreement may be used to analyze submit a letter of intent to apply (See award. information derived from user feedback Section IX—How to Apply) with a VI. Description/Scope mechanisms and surveys specifically Microsoft Access data base that contains related to the implementation of the information on new and emerging air This solicitation is for a cooperative NEAT Web site. pollution technologies compiled by agreement. Because of RBLC staff 8. Sustainability Plan—methods, EPA. Section XI of this notice provides experience in working with procedures and time frame to make the a list and description of fields included stakeholders and in supplying air NEAT Web site self-sustaining and in the EPA data base. The data base pollution technology information, EPA ensure the viability of the site. contains records for approximately 300 anticipates that there will be substantial Applicants should describe the new and emerging technologies EPA involvement in the design and decision-making process that will be developed in the U.S. and abroad. Note initial implementation of this proposal. used to identify and evaluate revenue that the data base is part of a system that Also, EPA is suppling a Web compatible generating procedures that can sustain consists of various Web interfaces that data base to serve as a starting point for this site over time. Revenue generating interact with the data base. These implementing this proposal and is opportunities may include, but are not interfaces are written in Microsoft prepared to advise the applicant limited to, nominal fees for listing Active Server Pages (ASP) and, in order concerning the development and technologies, links to vender Web sites, to use the interfaces, must reside on a maintenance of that data base. E-mail links to venders, and including Windows server running Microsoft The applicant must address the existing air technologies in the data base Internet Information Systems (IIS). This following items in the proposal: to increase the potential revenue base. data base (and the interfaces, if 1. Existing Web presence, equipment, Applicants should describe the appropriate) can be used by the capabilities, security and support. decision-making process to determine 2. Institution’s/organization’s level of successful applicant as the startup data how and when revenue generating expertise and recognition in the field of base for the NEAT Web site. The data procedures will be implemented once air pollution and air pollution base and interfaces to be provided by the NEAT Web site has established itself technologies. EPA for review by applicants shall be on as a major air technologies Web site. Compact Disk (CD). 3. The approach that will be taken to establish a searchable Web data base Applicants should indicate other IV. Duration (including an automated data entry resources that may be used to support This assistance effort will last 2 years procedure/system for information and sustain the NEAT Web. starting from the date of award. providers) that contains information on 9. Budget, staffing and administrative new, emerging and existing air procedures. OMB circulars on V. Eligibility technologies. These technologies shall regulations, cost principles, and other Academic and not-for-profit include emission controls, pollution administrative requirements (40 CFR institutions and organizations located in prevention, emissions and ambient air part 30) shall be followed. See the U.S. are eligible to apply. Profit- monitoring, air pollution modeling, and Application Kit for Federal Assistance making firms are not eligible to receive environmental management, tracking, under Section IX (How to Apply) for cooperative agreements from EPA under and decision-making approaches. more information. this program. Applications will be Provisions shall be made to include 10. Applicants must clearly mark any accepted from single institutions or both U.S. and foreign technologies. information in the application that they organizations and from consortia that 4. How the data base will be consider confidential. The EPA will include more than one institution or maintained and kept current. This make final confidentiality decisions in organization. Federal agencies, national should include a procedure to require accordance with Agency regulations at laboratories funded by Federal agencies venders to update their data 40 CFR part 2, subpart B. (Federally Funded Research and periodically. VII. Review and Selection Process Development Centers, FFRDCs), and 5. Methods that will be used to Federal employees are not eligible to promote this data base to encourage data Applicants must have an established submit applications to this program and submittal by technology developers and presence on the World Wide Web and may not serve in a principal leadership suppliers and use by industry, possess strong expertise in the field of role on this award. permitting agencies, environmental air pollution. Applicants will be judged Federal employees may not receive groups and the general public. If on the following criteria: salaries or in other ways augment their applicable, indicate methods that will 1. Adequacy of existing Web site agency’s appropriations through this be used to acquire appropriate co- (hardware and software) to support the cooperative agreement. However, the sponsors (e.g., industry and professional New and Emerging Air Technologies nature of the cooperative assistance trade associations, environmental Web. (Weight: 10%) agreement mechanism, which will be groups, etc.) 2. Relevant experience of the used to support the NEAT Web site, 6. Basic quality assurance and applicant (institution/organization) in contemplates collaboration between security procedures to maintain the the field of air pollution technology. EPA personnel and the assistance integrity of the data base. (Weight: 10%) provider’s institution, organization or 7. Mechanism to acquire feedback 3. Originality and creativity of the consortium. Personnel from EPA will from stakeholders and users that can be proposal to develop, maintain, support actively consult and collaborate with used in establishing and maintaining and promote the New and Emerging Air
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Technology Web site and data base. 3. Include a narrative that addresses 11. CSTON—P1—Average Annual Cost (Weight: 30%) all of the areas listed under Section VI Per Ton of Primary Pollutant Reduced 4. Plan to acquire and evaluate user/ (Description/Scope); and 12. POLL—2—Secondary Pollutant stakeholder input and implement 4. Submit one (1) original and four (4) Treated (NOX, SOx, VOC, PM2.5, improvements to generate and sustain printed copies of the application to the PM10, NH3, HAP, CO) interest in and usefulness of the site. address listed under ADDRESSES above. 13. CONTEFF—P2—Likely Control Funds awarded under this agreement Applications must be received by 4:00 Efficiency for Secondary Pollutant may not be used to solicit user feedback PM Eastern Daylight Savings Time 14. CONTEFF—H—P2—Maximum or conduct user surveys. Non-Federal November 1, 2002. Only a printed (hard Control Efficiency for Secondary funds must be used for such activities. copy) submittal will be accepted. Pollutant However, funds awarded under this X. Pre-Application Assistance 15. CONTEFF—L—P2—Minimum agreement may be used to analyze Control Efficiency for Secondary information derived from user feedback The EPA will conduct one conference Pollutant mechanisms and surveys specifically call to allow potential applicants to ask 16. CSTON—P2—Average Annual Cost related to the implementation of the questions. Only potential applicants Per Ton of Secondary Pollutant NEAT Web site. (Weight: 20%) who submit letters of intent to apply Reduced 5. Originality and creativity of the will be provided conference call 17. POLL—3—Tertiary Pollutant proposal’s Sustainability Plan in information. The call is intended to Treated (NOX, SOx, VOC, PM2.5, identifying, evaluating, selecting and assist applicants with questions about PM10, NH3, HAP, CO) implementing procedures that will the proper completion and submission 18. CONTEFF—P3—Likely Control generate revenue and allow the site to of their proposals. The content of the Efficiency for Tertiary Pollutant become self-sustaining. (Weight: 30%) calls is entirely dependent upon the 19. CONTEFF—H—P3—Maximum All applications will be reviewed by an questions asked. The EPA will also take Control Efficiency for Tertiary appropriate application review panel. questions via E-mail that is posted Pollutant The panel will be composed of EPA staff (dated) on or before September 6, 2002. 20. CONTEFF—L—P3—Minimum with expertise in information transfer, All E-mail questions must be sent to the Control Efficiency for Tertiary World Wide Web applications, air Program Office Contact listed under FOR Pollutant pollution prevention and control FURTHER INFORMATION CONTACT above. 21. CSTON—P3—Average Annual Cost technology, and environmental All questions received by E-mail and Per Ton of Tertiary Pollutant Reduced monitoring, measurements and analysis. EPA’s response to the questions will be 22. CAPCST—Capital Cost ($) posted on the Web at
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41. VOL—FL—RT—Volumetric Flow and Rodenticide Act (FIFRA) and Food www.epa.gov/. To access this Rate (cubic feet per second, rate Quality Protection Act Scientific document, on the Home Page select ranges) Advisory Panel (FQPA SAP) to consider ‘‘Laws and Regulations,’’ ‘‘Regulations 42. APP—ST—States that have and review EPA’s Draft Termite Bait and Proposed Rules,’’ and then look up Approved Use of this Technology Product Performance Testing Guideline. the entry for this document under the 43. APP—AGENCIES—Federal Agencies DATES: The meeting will be held on July ‘‘Federal Register— Environmental that have Approved Use of this 30–31, 2002, from 8:30 a.m. to Documents.’’ You can also go directly to Technology approximately 5 p.m. the Federal Register listings at http:// 44. PARAM—MEA—Monitored For dates on requests to present oral www.epa.gov/fedrgstr/. To access the Parameter comments, submission of written OPPTS Harmonized Guideline 45. SAMP—FREQ—Sampling comments, or requests for special referenced in this document, go directly Frequency seating arrangements, see Unit I.C. of to the guidelines at http://www.epa.gov/ 46. SAMP—PREC—Sampling Precision the SUPPLEMENTARY INFORMATION. opptsfrs/home/guidelin.htm. 47. SAMP—ACC—Sampling Accuracy ADDRESSES: This meeting will be held at A meeting agenda, EPA’s position 48. MAN—AUTO—Manual or paper, questions to FIFRA SAP, and Automated (manual, automated, or the Sheraton Crystal City Hotel, 1800 Jefferson Davis Highway, Arlington, VA. FIFRA SAP composition (i.e., members not applicable) and consultants) will be available no 49. ADDITIONAL—Other Applicable The telephone number for the Sheraton Hotel is (703) 486–1111. later than July 15. In addition, the Information Agency may provide additional 50. PRF—TST—MTHD—Performance Requests to present oral comments, background documents as the materials Test Method submission of written comments, or become available. You may obtain 51. ENFORC—PROC—Enforcement and requests for special seating electronic copies of these documents, Inspection Procedure arrangements may be submitted by mail, 52. CONT—PARA—Continuous or electronically, or in person. Please and certain other related documents that Parametric Monitoring System follow the detailed instructions for each might be available electronically, from 53. CRIT—HAP?—Criteria Pollutant or method as provided in Unit I. of the the FIFRA SAP Internet Home Page at HAP List? SUPPLEMENTARY INFORMATION. To ensure http://www.epa.gov/scipoly/sap. 54. IONIC—Ionic Species as Applicable proper receipt by EPA, your request 2. In person. The Agency has 55. PHYS—ST—Physical State at X must identify docket ID number OPP– established an official record for this Temperature 2002–0125 in the subject line on the meeting under docket ID number OPP– 56. PHYS—ST—TEMP—Physical State first page of your response. 2002–0125. The official record consists of the documents specifically referenced Temperature FOR FURTHER INFORMATION CONTACT: Olga in this notice, any public comments 57. PHYS—ST—PRES—Physical State Odiott, Designated Federal Official, received during an applicable comment Pressure Office of Science Coordination and period, and other information related to 58. OP—PARAM—CONT—PM— Policy (7202M), Environmental this action, including any information MONT—Operational Parameters for Protection Agency, 1200 Pennsylvania claimed as Confidential Business Continuous Parametric Monitoring Ave., NW., Washington, DC 20460; Information (CBI). This official record 59. COLL—MECH—Sample Collection, telephone number: (202) 564–8450; fax includes the documents that are Transport, Recovery and Analysis number: (202) 564–8382; e-mail physically located in the docket, as well Mechanisms addresses: [email protected]. 60. VALID—STAT—Validation Status as the documents that are referenced in as related to Verification, EPA Method SUPPLEMENTARY INFORMATION: those documents. The public version of 301 validation, Peer Review, or I. General Information the official record does not include any Collaborative Testing Results information claimed as CBI. In addition, 61. AVAIL—DOC—Available A. Does this Action Apply to Me? the Agency may provide additional Documentation This action is directed to the public background documents as the material 62. COST—PER—TEST—Cost Per Test in general. This action may, however, be becomes available. The public version numeric of interest to persons who are or may be of the official record, which includes 63. SYS—REQ—System Requirements required to conduct testing of chemical printed, paper versions of any electronic Dated: June 27, 2002 . substances under the Federal Food, comments that may be submitted during Elizabeth Craig, Drug, and Cosmetic Act (FFDCA), an applicable comment period, is Deputy Assistant Administrator for Air and FIFRA, and FQPA. Since other entities available for inspection in the Public Radiation. may also be interested, the Agency has Information and Records Integrity [FR Doc. 02–16863 Filed 7–3–02; 8:45 am] not attempted to describe all the specific Branch (PIRIB), Rm. 119, Crystal Mall entities that may be affected by this #2, 1921 Jefferson Davis Hwy., BILLING CODE 6560–50–P action. If you have any questions Arlington, VA, from 8:30 a.m. to 4 p.m., regarding the applicability of this action Monday through Friday, excluding legal ENVIRONMENTAL PROTECTION to a particular entity, consult the person holidays. The PIRIB telephone number AGENCY listed under FOR FURTHER INFORMATION is (703) 305–5805. CONTACT. [OPP–2002–0125; FRL–7186–6] C. How May I Participate in this B. How Can I Get Additional Meeting? FIFRA Scientific Advisory Panel; Information, Including Copies of this You may submit requests to present Notice of Public Meeting Document and Other Related oral comments, written comments, or Documents? AGENCY: Environmental Protection requests for special seating Agency (EPA). 1. Electronically. You may obtain arrangements through the mail, in ACTION: Notice. electronic copies of this document, and person, or electronically. Do not submit certain other related documents that any information in your request that is SUMMARY: There will be a 2–day meeting might be available electronically, from considered CBI. To ensure proper of the Federal Insecticide, Fungicide, the EPA Internet Home Page at http:// receipt by EPA, it is imperative that you
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identify docket ID number OPP–2002– Pesticide Programs (OPP), or telephone number listed in Unit I. of 0125 in the subject line on the first page Environmental Protection Agency, the SUPPLEMENTARY INFORMATION. of your request. Pennsylvania Ave., NW., Washington, List of Subjects 1. Oral comments. Oral comments DC 20460. presented at the meetings should not be 2. In person or by courier. Deliver Environmental protection, Pesticides repetitive of previously submitted oral your request or written comments to: and pests. or written comments. Public Information and Records Dated: June 28, 2002. Although requests to present oral Integrity Branch (PIRIB), Information Sherell A. Sterling, comments are accepted until the date of Resources and Services Division the meeting (unless otherwise stated), to Acting Director, Office of Science (7502C), Office of Pesticide Programs Coordination and Policy. the extent that time permits, interested (OPP), Environmental Protection persons may be permitted by the Chair [FR Doc. 02–16996 Filed 7–3–02; 8:45 am] Agency, Rm. 119, Crystal Mall #2, 1921 BILLING CODE 6560–50–S of FIFRA SAP to present oral comments Jefferson Davis Hwy., Arlington, VA. at the meeting. Each individual or group The PIRIB is open from 8:30 a.m. to 4 wishing to make brief oral comments to p.m., Monday through Friday, excluding ENVIRONMENTAL PROTECTION FIFRA SAP is strongly advised to legal holidays. The PIRIB telephone AGENCY submit their request to the DFO listed number is (703) 305–5805. under FOR FURTHER INFORMATION [OPPT–2002–0028; FRL–7186–1] CONTACT no later than noon, eastern 3. Electronically. You may submit standard time, July 25, 2002, in order to your request or written comments Certain New Chemicals; Receipt and be included on the meeting agenda. The electronically by e-mail to: opp- Status Information request should identify the name of the [email protected]. Do not submit any information electronically that you AGENCY: Environmental Protection individual making the presentation, the Agency (EPA). organization (if any) the individual will consider to be CBI. Use WordPerfect represent, and any requirements for 6.1/8.0/9.0 or ASCII file format and ACTION: Notice. avoid the use of special characters and audiovisual equipment (e.g., overhead SUMMARY: Section 5 of the Toxic any form of encryption. Be sure to projector, 35 mm projector, chalkboard). Substances Control Act (TSCA) requires identify by docket ID number OPP– Oral comments before FIFRA SAP are any person who intends to manufacture 2002–0125. You may also file a request limited to approximately 5 minutes (defined by statute to include import) a online at many Federal Depository unless prior arrangements have been new chemical (i.e., a chemical not on Libraries. made. In addition, the speaker should the TSCA Inventory) to notify EPA and bring to the meeting 30 copies of the II. Background comply with the statutory provisions oral comments and presentation slides pertaining to the manufacture of new A. Purpose of the Meeting for distribution to FIFRA SAP at the chemicals. Under sections 5(d)(2) and meeting. The FIFRA SAP will meet to consider 5(d)(3) of TSCA, EPA is required to 1. Written comments. Although and review the design and scientific publish a notice of receipt of a submission of written comments are soundness of the Agency’s draft Termite premanufacture notice (PMN) or an accepted until the date of the meeting Bait Product Performance Testing application for a test marketing (unless otherwise stated), the Agency Guideline, OPPTS 810.3800 - Termite exemption (TME), and to publish encourages that written comments be Baits. The guideline outlines both the periodic status reports on the chemicals submitted no later than noon, eastern testing methodologies and performance under review and the receipt of notices standard time, July 22, 2002, to provide standards for efficacy data submitted to of commencement to manufacture those FIFRA SAP the time necessary to EPA to allow evaluation of the chemicals. This status report, which consider and review the written performance of termite bait products. covers the period from May 3, 2002 to comments. There is no limit on the May 21, 2002, consists of the PMNs extent of written comments for The use of termite bait products has emerged as an important method of pending or expired, and the notices of consideration by FIFRA SAP. Persons commencement to manufacture a new wishing to submit written comments at termite control. Because of the highly specialized nature of termite baits, a chemical that the Agency has received the meeting should contact the DFO under TSCA section 5 during this time listed under FOR FURTHER INFORMATION number of evaluation issues have arisen in the past 6 years, including minimum period. The ‘‘S’’ and ‘‘G’’ that precede CONTACT and submit 30 copies. the chemical names denote whether the 2. Seating at the meeting. Seating at product performance standards needed chemical idenity is specific or generic. the meeting will be on a first-come for termite bait product registration. basis. Individuals requiring special This meeting of the FIFRA SAP will DATES: Comments identified by the accommodations at this meeting, provide a forum for experts and the docket control number OPPT–2002– including wheelchair access, should public to comment on the product 0028 and the specific PMN number, contact Olga Odiott at least 5 business performance standards and testing must be received on or before August 5, days prior to the meeting using the protocols proposed by the Agency to 2002. information under FOR FURTHER address these and other issues related to ADDRESSES: Comments may be INFORMATION CONTACT so that termite bait products. submitted by mail, electronically, or in appropriate arrangements can be made. B. The FIFRA SAP Meeting Minutes person. Please follow the detailed instructions for each method as D. Submission of Requests and Written FIFRA SAP will prepare a report of its provided in Unit I. of the Comments recommendations to the Agency in SUPPLEMENTARY INFORMATION. To ensure 1. By mail. Submit your request or approximately 60 days. The meeting proper receipt by EPA, it is imperative written comments to: Public minutes will be posted on the FIFRA that you identify docket ID number Information and Records Integrity SAP web site or may be obtained by OPPT–2002–0028 and the specific PMN Branch (PIRIB), Information Resources contacting the Public Information and number in the subject line on the first and Services Division (7502C), Office of Records Integrity Branch at the address page of your response.
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FOR FURTHER INFORMATION CONTACT: Washington, DC. The Center is open will be included in the public version Barbara Cunningham, Acting Director, from noon to 4 p.m., Monday through of the official record without prior Environmental Assistance Division, Friday, excluding legal holidays. The notice. If you have any questions about Office of Pollution Prevention and telephone number of the Center is (202) CBI or the procedures for claiming CBI, Toxics (7408M), Environmental 260–7099. please consult the person listed under FOR FURTHER INFORMATION CONTACT. Protection Agency, 1200 Pennsylvania C. How and to Whom Do I Submit Ave., NW., Washington, DC 20460; Comments? E. What Should I Consider as I Prepare telephone number: (202) 554–1404; e- My Comments for EPA? mail address: [email protected]. You may submit comments through SUPPLEMENTARY INFORMATION: the mail, in person, or electronically. To You may find the following ensure proper receipt by EPA, it is suggestions helpful for preparing your I. General Information imperative that you identify docket ID comments: A. Does this Action Apply to Me? number OPPT–2002–0028 and the 1. Explain your views as clearly as specific PMN number in the subject line possible. This action is directed to the public on the first page of your response. 2. Describe any assumptions that you in general. As such, the Agency has not 1. By mail. Submit your comments to: used. attempted to describe the specific Document Control Office (7407), Office 3. Provide copies of any technical entities that this action may apply to. of Pollution Prevention and Toxics information and/or data you used that Although others may be affected, this (OPPT), Environmental Protection support your views. action applies directly to the submitter Agency, 1200 Pennsylvania Ave., NW., 4. If you estimate potential burden or of the premanufacture notices addressed Washington, DC 20460. costs, explain how you arrived at the in the action. If you have any questions 2. In person or by courier. Deliver estimate that you provide. regarding the applicability of this action your comments to: OPPT Document 5. Provide specific examples to to a particular entity, consult the person Control Office (DCO) in EPA East illustrate your concerns. listed under FOR FURTHER INFORMATION Building Rm. 6428, 1201 Constitution 6. Offer alternative ways to improve CONTACT. Ave., NW., Washington, DC. The DCO is the notice or collection activity. open from 8 a.m. to 4 p.m., Monday B. How Can I Get Additional 7. Make sure to submit your through Friday, excluding legal Information, Including Copies of this comments by the deadline in this holidays. The telephone number for the Document and Other Related document. DCO is (202) 564–8930. 8. To ensure proper receipt by EPA, Documents? 3. Electronically. You may submit be sure to identify the docket ID number 1. Electronically. You may obtain your comments electronically by e-mail assigned to this action in the subject copies of this document and certain to: ‘‘[email protected],’’ or mail your line on the first page of your response. other available documents from the EPA computer disk to the address identified You may also provide the name, date, Internet Home Page at http:// in this unit. Do not submit any and Federal Register citation. www.epa.gov/. On the Home Page select information electronically that you ‘‘Laws and Regulations’’,’’ Regulations consider to be CBI. Electronic comments II. Why is EPA Taking this Action? and Proposed Rules, and then look up must be submitted as an ASCII file Section 5 of TSCA requires any the entry for this document under the avoiding the use of special characters person who intends to manufacture ‘‘Federal Register—Environmental and any form of encryption. Comments (defined by statute to include import) a Documents.’’ You can also go directly to and data will also be accepted on new chemical (i.e., a chemical not on the Federal Register listings at http:// standard disks in WordPerfect 6.1/8.0 or the TSCA Inventory to notify EPA and www.epa.gov/fedrgstr/. ASCII file format. All comments in comply with the statutory provisions 2. In person. The Agency has electronic form must be identified by pertaining to the manufacture of new established an official record for this docket ID number OPPT–2002–0028 chemicals. Under sections 5(d)(2) and action under docket ID number OPPT– and the specific PMN number. 5(d)(3) of TSCA, EPA is required to 2002–0028. The official record consists Electronic comments may also be filed publish a notice of receipt of a PMN or of the documents specifically referenced online at many Federal Depository an application for a TME and to publish in this action, any public comments Libraries. periodic status reports on the chemicals received during an applicable comment under review and the receipt of notices D. How Should I Handle CBI that I Want period, and other information related to of commencement to manufacture those to Submit to the Agency? this action, including any information chemicals. This status report, which claimed as confidential business Do not submit any information covers the period from May 3, 2002 to information (CBI). This official record electronically that you consider to be May 21, 2002, consists of the PMNs includes the documents that are CBI. You may claim information that pending or expired, and the notices of physically located in the docket, as well you submit to EPA in response to this commencement to manufacture a new as the documents that are referenced in document as CBI by marking any part or chemical that the Agency has received those documents. The public version of all of that information as CBI. under TSCA section 5 during this time the official record does not include any Information so marked will not be period. information claimed as CBI. The public disclosed except in accordance with version of the official record, which procedures set forth in 40 CFR part 2. III. Receipt and Status Report for PMNs includes printed, paper versions of any In addition to one complete version of This status report identifies the PMNs electronic comments submitted during the comment that includes any pending or expired, and the notices of an applicable comment period, any test information claimed as CBI, a copy of commencement to manufacture a new data submitted by the Manufacturer/ the comment that does not contain the chemical that the Agency has received Importer is available for inspection in information claimed as CBI must be under TSCA section 5 during this time the TSCA Nonconfidential Information submitted for inclusion in the public period. If you are interested in Center, North East Mall Rm. B– 607, version of the official record. information that is not included in the Waterside Mall, 401 M St., SW., Information not marked confidential following tables, you may contact EPA
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as described in Unit II. to access In table I, EPA provides the following received by EPA; the projected end date additional non-CBI information that information (to the extent that such for EPA’s review of the PMN; the may be available. The ‘‘S’’ and ‘‘G’’ that information is not claimed as CBI) on submitting manufacturer; the potential precede the chemical names denote the PMNs received by EPA during this uses identified by the manufacturer in whether the chemical idenity is specific period: the EPA case number assigned the PMN; and the chemical identity. or generic. to the PMN; the date the PMN was
I. 74 PREMANUFACTURE NOTICES RECEIVED FROM: 05/03/02 TO 05/21/02
Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date
P–02–0630 05/06/02 08/04/02 Solutia Inc. (S) Resin for industrial paints (G) Modified polyester resin P–02–0631 05/06/02 08/04/02 CBI (S) Reactive dye for textile (G) Substituted naphthalene sulfonic acid, alkali salt P–02–0632 05/06/02 08/04/02 CBI (S) Acrylic polymer used as a (G) Acrylic polymer photoresist component P–02–0633 05/06/02 08/04/02 Solutia Inc. (S) Resin for industrial paints (G) Modified polyester resin P–02–0634 05/07/02 08/05/02 CBI (G) Fuel oil/diesel oil (G) Methoxymethylbenzenes methylanisoles P–02–0635 05/07/02 08/05/02 CBI (G) Fuel oil/diesel oil (G) Methoxymethylbenzenes methylanisoles P–02–0636 05/07/02 08/05/02 CBI (G) Fuel oil/diesel oil (G) Methoxymethylbenzenes methylanisoles P–02–0637 05/07/02 08/05/02 CBI (G) Fuel oil/diesel oil (G) Methoxymethylbenzenes methylanisoles P–02–0638 05/07/02 08/05/02 Alberdingk Boley Inc. (S) Exterior wood protection (G) Hexanedioic acid, polymer with 2,2-dimethyl-1,3-propanediol, 1,6- hexanediol, hexanedioic acid amide derivative, 3-hydroxy-2- (hydroxymethyl)-2-methylpropanoic acid and 1,1′-methylenebis[4- isocyanatocyclohexane], compound with nu, nu-diethylethaneamine P–02–0639 05/07/02 08/05/02 EM Industries, Inc. (G) Treating agent (S) Silane, trimethoxydecyl- P–02–0640 05/08/02 08/06/02 Clariant LSM (Amer- (S) Anti-fouling agent in marine paints (G) Mono-halo tri-alkylsilane ica) Inc. P–02–0641 05/08/02 08/06/02 Clariant LSM (Amer- (S) Anti-fouling agent in marine paints (G) Tri-alkyl-silyl ester ica) Inc. P–02–0642 05/08/02 08/06/02 Clariant LSM (Amer- (S) Anti-fouling agent in marine paints (G) Tri-alkylsilyl hydride ica) Inc. P–02–0643 05/08/02 08/06/02 Forbo adhesives, LLC (G) Hot melt adhesive (G) Hot melt polyurethane adhesive P–02–0644 05/08/02 08/06/02 Forbo adhesives, LLC (G) Hot melt adhesive (G) Hot melt polyurethane adhesive P–02–0645 05/09/02 08/07/02 Houghton Inter- (S) Lubricant additive/emulsifier (S) Fatty acids, C16–18 and C18-un- national, Inc. saturated, branched and linear, diesters with polyethylene glycol P–02–0646 05/09/02 08/07/02 CBI (S) Surfactant for making aqueous (G) Ethoxylated phosphate salt adhesive dispersions P–02–0647 05/09/02 08/07/02 U.S. Paint Corporation (G) Resin for coatings (G) Hydroxyl-terminated aliphatic polycarbonate P–02–0648 05/09/02 08/07/02 Phillips Petroleum (S) Hydrocarbon solvent (S) Naphtha (petroleum), Company hydrodesulfurized, light, dearomatized P–02–0649 05/10/02 08/08/02 CBI (G) Component of polyurethane (G) Aromatic polyester polyol P–02–0650 05/10/02 08/08/02 CBI (G) Component of polyurethane (G) Aromatic polyester polyol P–02–0651 05/10/02 08/08/02 Vantico Corp. (S) Resin for structural composites; (G) Bis(phenol), 3,3-bis(3,4-dihydro- resin for electronic laminates 3phenyl-2h-1,3-benzoxazin-6-yl) de- rivative P–02–0652 05/09/02 08/07/02 CBI (G) Pigment dispersant (G) Polyurethane derivative P–02–0653 05/10/02 08/08/02 Vantico Corp. (S) Resin for electronic laminates; ad- (G) Polyphenol, 2h-1,3-benzoxazine hesives resin; encapsulants resin; derivative composites resin P–02–0654 05/13/02 08/11/02 CBI (G) Open, non-dispersive, (resin) (G) Powder polyester coating resin P–02–0655 05/13/02 08/11/02 CBI (S) Marine(antifouling) coating (G) Copolymer of acrylic and meth- acrylic esters P–02–0656 05/13/02 08/11/02 CBI (G) Open, non-dispersive, (resin) (G) Powder coating polyester resin P–02–0657 05/13/02 08/11/02 CBI (G) Open, non-dispersive, (resin) (G) Powder coating resin
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I. 74 PREMANUFACTURE NOTICES RECEIVED FROM: 05/03/02 TO 05/21/02—Continued
Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date
P–02–0658 05/13/02 08/11/02 E.i. Dupont De Ne- (G) Polymer modifier (G) Ethylene copolymer mours and Co., Inc P–02–0659 05/14/02 08/12/02 Crompton Corporation (G) Catalyst (S) Stannane, dimethylbis[[(9z)-1-oxo- 9-octadecenyl]oxy]- P–02–0660 05/15/02 08/13/02 Dow Agro Sciences (S) Chemical intermediate (G) Chlorooxazole P–02–0661 05/15/02 08/13/02 CBI (G) Open, non-dispersive (urethane) (G) Polyurethane-polyurea based on ipdi P–02–0662 05/15/02 08/13/02 CBI (S) Reactive dye for textile (G) Substituted naphthalene sulfonic acid, alkali salt P–02–0663 05/15/02 08/13/02 CBI (G) Open, non-dispersive (urethane) (G) Polyurethane-polyurea based on ipdi P–02–0664 05/15/02 08/13/02 American Honda (S) Component of electrolyte for ca- (S) Ethanaminium, nu,nu-diethyl-nu- Motor Co., Inc. pacitor of automobile methyl-, tetrafluoroborate (1-) P–02–0665 05/15/02 08/13/02 Crompton Corporation (G) Lubricating oil additive (S) Benzoic acid, 5-dodecyl-2-hy- droxy-, calcium salt (2:1), branched P–02–0666 05/16/02 08/14/02 CBI (S) Additive for adhesion of rubber to (G) Dicyclopentadiene-resorcinol co- metal in tire and wire coatings polymer P–02–0667 05/15/02 08/13/02 Houghton inter- (S) Lubricant additive/emulsifier (S) Fatty acids, C16–18 and C18-un- national, Inc. saturated, branched and linear, esters with polyethylene glycol mono(branched 4-nonylphenyl) ether P–02–0668 05/13/02 08/11/02 Wacker silicones, a di- (S) Binder for silicone coatings (S) Siloxanes and silicones, di-me, vision of wacker polymers with ph silsesquioxanes, chemical corporation hydrolyzed, reaction products with trimethoxy[3- (oxiranylmethoxy)propyl]silane P–02–0669 05/16/02 08/14/02 CBI (S) Resin component for ultraviolet (G) Aliphatic diacrylate cure coatings P–02–0670 05/16/02 08/14/02 Gelest, Inc. (S) Catalyst research (S) Titanium, chlorotris(2- propanolato)- P–02–0671 05/14/02 08/12/02 Vulcan Performance (G) Open, non-dispersive use in (G) Alkoxylated alkyl ether phosphate Chemicals paper pulp P–02–0672 05/20/02 08/18/02 E.I. Dupont De Ne- (G) Polymeric polymer additive-open (G) Modified polyvinyl butyral mours and Co., Inc non-dispersive P–02–0673 05/20/02 08/18/02 E.I. Dupont De Ne- (G) Polymeric polymer additive-open (G) Modified polyvinyl butyral mours and Co., Inc non-dispersive P–02–0674 05/20/02 08/18/02 E.I. Dupont De Ne- (G) Polymeric polymer additive-open (G) Modified polyvinyl butyral mours and Co., Inc non-dispersive P–02–0675 05/20/02 08/18/02 E.I. Dupont De Ne- (G) Polymeric polymer additive-open (G) Modified polyvinyl butyral mours and Co., Inc non-dispersive P–02–0676 05/20/02 08/18/02 E.I. Dupont De Ne- (G) Polymeric polymer additive-open (G) Modified polyvinyl butyral mours and Co., inc non-dispersive P–02–0677 05/20/02 08/18/02 E.I. Dupont De Ne- (G) Polymeric polymer additive-open (G) Modified polyvinyl butyral mours and Co., Inc non-dispersive P–02–0678 05/20/02 08/18/02 CBI (S) Intermediate for polyurethanes (G) Urethane diol P–02–0679 05/20/02 08/18/02 CBI (S) Laminating adhesive; ink recep- (G) Polyester polyurethane polymer tive coating (printing) P–02–0680 05/20/02 08/18/02 CBI (G) Destructive use-plastics additive (G) Surface modified aluminum hy- droxide P–02–0681 05/20/02 08/18/02 CBI (G) Destructive use-plastics additive (G) Surface modified aluminum hy- droxide P–02–0682 05/20/02 08/18/02 CBI (G) Destructive use-plastics additive (G) Surface modified aluminum hy- droxide P–02–0683 05/20/02 08/18/02 CBI (G) Destructive use-plastics additive (G) Surface modified aluminum hy- droxide P–02–0684 05/20/02 08/18/02 CBI (G) Destructive use-plastics additive (G) Surface modified aluminum hy- droxide P–02–0685 05/21/02 08/19/02 Meadwestvaco Cor- (S) Binding agent in paper coatings (G) Butyl acrylate, polymer with sty- poration - Specialty rene and methylamino chloride Chemicals Division compounds P–02–0686 05/21/02 08/19/02 CBI (G) Emulsifier or surfactant (G) Alkylamidoalkylsulfonic acid salt P–02–0687 05/21/02 08/19/02 CBI (G) Emulsifier or surfactant (G) Alkylamidoalkylsulfonic acid salt P–02–0688 05/21/02 08/19/02 CBI (G) Chemical intermediate (G) Unsaturated hydrocarbon P–02–0689 05/21/02 08/19/02 CBI (G) Chemical intermediate (G) Unsaturated hydrocarbon P–02–0690 05/21/02 08/19/02 CBI (G) Chemical intermediate (G) Unsaturated hydrocarbon P–02–0691 05/21/02 08/19/02 CBI (G) Chemical intermediate (G) Unsaturated hydrocarbon P–02–0692 05/21/02 08/19/02 CBI (G) Lubricant base fluid (G) Saturated hydrocarbon P–02–0693 05/21/02 08/19/02 CBI (G) Lubricant base fluid (G) Saturated hydrocarbon
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I. 74 PREMANUFACTURE NOTICES RECEIVED FROM: 05/03/02 TO 05/21/02—Continued
Projected Case No. Received Notice Manufacturer/Importer Use Chemical Date End Date
P–02–0694 05/21/02 08/19/02 CBI (G) Lubricant base fluid (G) Saturated hydrocarbon P–02–0695 05/21/02 08/19/02 CBI (G) Lubricant base fluid (G) Saturated hydrocarbon P–02–0696 05/21/02 08/19/02 CBI (G) Polymeric binder (G) Styrene-methacrylate copolymer P–02–0697 05/20/02 08/18/02 CBI (G) Catalyst component (G) Dineopentyl-4-substituted phthal- ate P–02–0716 05/21/02 08/19/02 Meadwestvaco Cor- (S) Binding agent in paper coatings (G) Butyl acrylate, polymer with sty- poration - Specialty rene and methylamino chloride Chemicals Division compounds, nitrate P–02–0717 05/21/02 08/19/02 Meadwestvaco Cor- (S) Binding agent in paper coatings (G) Butyl acrylate, polymer with sty- poration - Specialty rene and methylamino chloride Chemicals Division compounds, lactate P–02–0718 05/21/02 08/19/02 Meadwestvaco Cor- (S) Binding agent in paper coatings (G) Butyl acrylate, polymer with sty- poration - Specialty rene and methylamino chloride Chemicals Division compounds, acetate P–02–0719 05/21/02 08/19/02 Meadwestvaco Cor- (S) Binding agent in paper coatings (G) Butyl acrylate, polymer with sty- poration - Specialty rene and methylamino chloride Chemicals Division compounds, hydrochloride P–02–0720 05/21/02 08/19/02 Meadwestvaco Cor- (S) Binding agent in paper coatings (G) Butyl acrylate, polymer with sty- poration - Specialty rene and methylamino chloride Chemicals Division compounds, citrate P–02–0721 05/21/02 08/19/02 Meadwestvaco Cor- (S) Binding agent in paper coatings (G) Butyl acrylate, polymer with sty- poration - Specialty rene and methylamino chloride Chemicals Division compounds, acrylate
In table II, EPA provides the following the Notices of Commencement to information (to the extent that such manufacture received: information is not claimed as CBI) on
II. 26 NOTICES OF COMMENCEMENT FROM: 05/03/02 TO 05/21/02
Commencement/ Case No. Received Date Import Date Chemical
P–00–0011 05/21/02 04/15/02 (G) Alcohols, ethoxylated propoxylated P–00–1149 05/20/02 04/16/02 (S) Benzene, diethenyl-, polymer with ethenylbenzene and ethenylethylbenzene, chloromethylated, cyclized, reaction products with ethylbenzene P–01–0187 05/16/02 05/10/02 (G) Fatty acids, tall-oil, reaction products with castor oil and substituted amines, acetates P–01–0188 05/16/02 05/10/02 (G) Fatty acids, tall-oil, reaction products with castor oil and substituted amines, phosphates P–01–0238 05/07/02 04/10/02 (G) Modified polyacrylate P–01–0262 05/13/02 04/28/02 (G) Distillates (petroleum), steam-cracked, polymers with light steam-cracked petroleum conc. and tall oil fatty acid P–01–0833 05/07/02 04/26/02 (G) Crosslinked polyamine P–01–0869 05/03/02 04/22/02 (G) Acrylic polymer P–01–0870 05/06/02 05/01/02 (G) Acrylic non-aqueous dispersion P–02–0017 05/07/02 04/04/02 (G) Azo oil soluble dye P–02–0057 05/10/02 04/16/02 (G) Polycarboxylic resin P–02–0095 05/13/02 04/09/02 (G) Substituted pyridine P–02–0121 05/03/02 04/08/02 (S) Siloxanes and silicones, di-me, hydrogen-terminated, reaction products with bisphenol a diglycidyl ether and 10-undecenoic acid P–02–0157 05/03/02 04/15/02 (G) Polyurethane-poly carbonate polymer P–02–0227 05/10/02 04/12/02 (G) Polyether P–02–0233 05/10/02 04/18/02 (G) Modified alkyl ammonium salts P–02–0236 05/10/02 04/16/02 (G) Acrylic copolymer P–02–0244 05/10/02 04/18/02 (G) Urea resin P–02–0263 05/10/02 04/30/02 (G) Acrylate/allylether copolymer P–02–0268 05/10/02 04/22/02 (G) Acrylic copolymer P–02–0275 05/10/02 04/22/02 (G) Acrylic copolymer P–02–0277 05/15/02 05/08/02 (G) Polyester acrylate P–98–0513 05/14/02 04/22/02 (G) Methylacrylate copolymer P–98–1029 05/03/02 04/21/02 (S) 1,2-ethanediamine, n-[3-(triethoxysilyl)propyl]- P–99–0851 05/08/02 01/16/02 (G) Metal ammine nitrate complex P–99–1327 05/03/02 04/02/02 (G) Halogenated alkane
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List of Subjects party or entity, and requests to make an FEDERAL HOUSING FINANCE BOARD Environmental protection, Chemicals, oral statement must be received two Sunshine Act Meeting; Announcing an Premanufacturer notices. business days before the meeting. Requests to make an oral statement or Open Meeting of the Board Dated: June 20, 2002. provide written comments to the NANC Mary Louise Hewlett, Time and Date: 10:00 a.m., should be sent to Deborah Blue at the Wednesday, July 10, 2002. Acting Director, Information Management address under FOR FURTHER INFORMATION Place: Board Room, Second Floor, Division, Office of Pollution Prevention and CONTACT, stated above. Toxics. Federal Housing Finance Board, 1777 F [FR Doc. 02–16896 Filed 7–3–02; 8:45 am] Proposed Agenda—Wednesday, July 17, Street, NW., Washington, DC 20006. 2002 Status: The entire meeting will be BILLING CODE 6560–50–S open to the public. 1. Announcements and Recent News Matters To Be Considered During 2. Approve Minutes Portions Open to the Public: FEDERAL COMMUNICATIONS —Meeting of May 21–22, 2002 • Federal Home Loan Bank of COMMISSION 3. Report of North American Numbering Indianapolis Capital Plan Plan Administrator (NANPA) • [CC Docket No. 92–237; DA 02–1487] Federal Home Loan Bank of Des —NANP Exhaust Results Moines Capital Plan —NPA Relief Planning Status Report • Federal Home Loan Bank of Topeka Next Meeting of the North American —CO Code Activity Report Numbering Council —NRUF Update Capital Plan —Update on Return Codes with Ported TNs Contact Person for More Information: AGENCY: Federal Communications —Review of NANPA Performance Elaine L. Baker, Secretary to the Board, Commission. Improvement Plan (PIP) (202) 408–2837. ACTION: Notice. —Review of NANC Chairman letter to FCC re Change Management Administration James L. Bothwell, SUMMARY: On June 28, 2002, the contractor Managing Director. Commission released a public notice 4. Update on Selection of Next NANPA [FR Doc. 02–16954 Filed 7–2–02; 11:15 am] announcing the July 17–18, 2002 —Issuance of Requirements Document BILLING CODE 6725–01–P meeting and agenda of the North —Procurement Schedule 5. Report of NANP Expansion/ American Numbering Council (NANC). Optimization IMG The intended effect of this action is to 6. Review of Oversight Working Groups FEDERAL MARITIME COMMISSION make the public aware of the NANC’s —Regular Report of NANPA Oversight next meeting and its agenda. Working Group (NOWG) Notice of Agreement(s) Filed —Formation of Pooling Administrator FOR FURTHER INFORMATION CONTACT: The Commission hereby gives notice Deborah Blue, Special Assistant to the Oversight Working Group (PAOWG) —Rechartering NOWG of the filing of the following Designated Federal Officer (DFO) at —Two WG’s or one? agreement(s) under the Shipping Act of (202) 418–1466 or [email protected]. The 7. Status of Industry Numbering Committee 1984. Interested parties can review or address is: Telecommunications Access activities obtain copies of agreements at the Policy Division, Wireline Competition 8. Report of the Local Number Portability Washington, DC offices of the Bureau, Federal Communications Administration (LNPA) Working Group Commission, 800 North Capitol Street, Commission, The Portals II, 445 12th Wireless Number Portability Operations NW., Room 940. Interested parties may Street, SW, Suite 5–A420, Washington, (WNPO) Subcommittee —WNPO/CTIA: Status of meeting the Nov. submit comments on an agreement to DC 20554. The fax number is: (202) the Secretary, Federal Maritime 418–2345. The TTY number is: (202) 24, 2002 pooling and porting deadline 9. Report of National Thousands-Block Commission, Washington, DC 20573, 418–0484. Pooling Administrator within 10 days of the date this notice SUPPLEMENTARY INFORMATION: Released: 10. Report of NAPM LLC appears in the Federal Register. June 28, 2002. 11. Report from NBANC Agreement No.: 011809. The North American Numbering —Status of next NBANC contract Title: Tropical/Tecmarine Agreement. Council (NANC) has scheduled a 12. Report of Cost Recovery Working Parties: Tropical Shipping & meeting to be held Wednesday July 17, Group 13. Report of E–Conferencing Construction Company, Ltd. Tecmarine 2002, from 8:30 a.m. until 5 p.m., and Subcommittee Lines, Inc. on Thursday, July 18, 2002, from 8:30 14. Steering Committee Synopsis: Under the proposed a.m., until 12 noon (if required). The —Table of NANC Projects agreement, Tecmarine will refrain from meeting will be held at the Federal 15. Report of Steering Committee competing with Tropical in the trade Communications Commission, Portals 16. Action Items between the Untied States and the II, 445 12th Street, SW, Room TW–C305, 17. Public Participation (5 minutes each) Guianas and the Eastern Caribbean. This Washington, DC. 18. Other Business agreement is in consideration of This meeting is open to members of Adjourn (no later than 5:00 p.m.) Thursday, Tropical’s purchase of certain July 18, 2002 (if required) the general public. The FCC will 19. Complete any unfinished Agenda Items Tecmarine assets and stock companies attempt to accommodate as many 20. Other Business operating in the foregoing trading areas. participants as possible. The public may Adjourn (no later than 12:00 Noon) Agreement No.: 200063–023. submit written statements to the NANC, Next meeting: September 24–25, 2002. Title: NYSA–ILA Tonnage which must be received two business Assessment Agreement Assignment days before the meeting. In addition, Federal Communications Commission. Agreement. oral statements at the meeting by parties Sanford S. Williams, Parties: New York Shipping or entities not represented on the NANC Attorney, Telecommunications Access Policy Association, Inc. International will be permitted to the extent time Division, Wireline Competition Bureau. Longshoremen’s Association, AFL–CIO. permits. Such statements will be limited [FR Doc. 02–16872 Filed 7–3–02; 8:45 am] Synopsis: The amendment reduces to five minutes in length by any one BILLING CODE 6712–01–P certain assessment rates and classifies
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uncontainerized bagged cocoa as an FEDERAL MARITIME COMMISSION Notice of Inquiry seeking information excepted cargo. regarding the Regulations of the PRC on [Docket No. 98–14] International Maritime Transportation Agreement No.: 201113–001. Shipping Restrictions, Requirements (Regulations), promulgated on Title: Oakland/SSA Terminals, LLC and Practices of the People’s Republic December 21, 2001 and effective January Preferential Assignment Agreement. of China 1, 2002. 67 Fed. Reg. 11695–11696 Parties: Port of Oakland, SSA (March 15, 2002). The Commission, in Terminals, LLC. AGENCY: Federal Maritime Commission. its effort to continue to monitor the ACTION: Further notice of inquiry. issues identified in this proceeding, is Synopsis: The amendment revises the now issuing this Further Notice of delivery of certain portions of the SUMMARY: In connection with an Inquiry. leasehold, clarifies the improvements ongoing inquiry, the Federal Maritime Recently, the Ministry of the port will install on the premises, Commission (‘‘FMC’’ or ‘‘Commission’’) Communications (‘‘MOC’’) issued a and clarifies the repair and maintenance is seeking comments from the shipping ‘‘Notice on Inviting Comments on the obligations of the parties. The public specifically with regards to Implementing Rules for the Regulations amendment also amends the minimum recently proposed implementing rules of the People’s Republic of China on annual guarantees and break point of the Government of the People’s International Maritime Transportation’’ levels as well as revises the terms for the Republic of China which may have an (‘‘Notice’’) on June 21, 2002. This termination of other agreements. adverse impact on U.S. shipping, and Notice, published on the MOC website which may merit Commission attention (http://www.moc.gov.cn), together with By Order of the Federal Maritime under section 19 of the Merchant Commission. the text of the proposed ‘‘Implementing Marine Act, 1920 or the Foreign Rules,’’ both in English, solicits Dated: June 28, 2002. Shipping Practices Act of 1988. comments in writing (via fax or email) Bryant L. VanBrakle, DATE: Comments due on or before by July 15, 2002. Secretary. August 5, 2002. The Commission is concerned that the [FR Doc. 02–16757 Filed 7–3–02; 8:45 am] ADDRESS: Send comments (original and proposed Implementing Rules may have BILLING CODE 6730–01–P 15 copies) to: Bryant L. VanBrakle, significant effects on the companies Secretary, Federal Maritime currently operating in the U.S.-China Commission, 800 North Capitol Street, trade, as well as the Commission’s FEDERAL MARITIME COMMISSION NW., Washington, DC 20573–0001, continuing review of potentially (202) 523–5725, e-mail: restrictive practices of the PRC. Notice of Request for Additional [email protected]. Therefore, the Commission is now issuing this Further Notice of Inquiry. Information FOR FURTHER INFORMATION, CONTACT: The Commission may also formulate David R. Miles, Acting General Counsel, further Information Demand Orders, as The Commission gives notice that it Federal Maritime Commission, 800 appropriate, to ensure it has the most has requested that the parties to the North Capitol Street, NW., Washington, accurate information with regard to below listed agreements provide DC 20573–0001 (202) 523–5740. additional information pursuant to these issues, and so that it may in turn SUPPLEMENTARY INFORMATION: section 6(d) of the Shipping Act of 1984, determine whether any current Chinese 46 U.S.C. app. 1701 et seq. The Background laws, rules, regulations or practices merit the initiation of a proceeding Commission has determined that further This proceeding was initiated on under section 19 of the Merchant information is necessary to evaluate the August 12, 1998, to gather information Marine Act, 1920, or the Foreign agreements. This action prevents the regarding certain apparently restrictive Shipping Practices Act. agreements from becoming effective as laws, rules and regulations of the originally scheduled. People’s Republic of China (‘‘PRC’’ or Discussion and Request for Comments Agreement No.: 011804. ‘‘China’’) with the issuance of It appears that U.S. ocean Information Demand Orders and a Title: Eastern Car Liner/Fesco Ocean transportation intermediaries, carriers Notice of Inquiry. The Commission is and other transportation operators may Management Ltd. Space Charter attempting to compile a record in order Agreement. face serious restrictions in obtaining the to determine if further Commission necessary licenses and permissions to Parties: Eastern Car Liner, Ltd., Fesco action under section 19 of the Merchant do business in China. Indeed, it appears Ocean Management Limited. Marine Act, 1920 or the Foreign that wholly foreign-owned NVOCCs Agreement No.: 011807. Shipping Practices Act of 1988 is continue to be completely barred from warranted.1 The Commission issued a Title: SNL/HASCO Cross Space engaging in a number of commercial activities, such as offering through Charter and Sailing Agreement. 1 Section 19 of the Merchant Marine Act, 1920, 46 transportation as an NVOCC. Other Parties: Sinotrans Container Line Co., U.S.C. app. § 876, authorizes and directs the Commission, inter alia, to ‘‘make rules and Ltd., Shanghai Hai Hua Shipping Co., regulations affecting shipping in the foreign trade maritime related services in a foreign country result Ltd. not in conflict with law in order to adjust or meet in the existence of conditions that (1) adversely general or special conditions unfavorable to affect the operations of United States carriers in the By Order of the Federal Maritime shipping in the foreign trade * * * which arise out United States oceanborne trade; and (2) do not exist Commission. of or result from foreign laws, rules, or regulations for foreign carriers of that country in the United Dated: June 28, 2002. or from competitive methods or practices employed States under the laws of the United States or as a by owners, operators, agents, or masters of vessels result of acts of United States carriers or other Bryant L. VanBrakle, of a foreign country* * * .’’ The Foreign Shipping persons providing maritime or maritime-related Secretary. Practices Act of 1988, 46 U.S.C. app. § 1710a, services in the United States. If the Commission authorizes the Commission to investigate whether determines that such adverse conditions exist, it [FR Doc. 02–16804 Filed 7–3–02; 8:45 am] any laws, rules, regulations, policies, or practices of may take actions including limitations on sailings, BILLING CODE 6730–01–P foreign governments, or any practices of foreign suspension of tariffs, suspension of agreements, or carriers or other persons providing maritime or fees not to exceed $1,000,000 per voyage.
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types of services may be permitted, but By the Commission. License Number: 11870N. only if a foreign firm enters into a joint Bryant L. VanBrakle, Name: I.T.N. Consolidators, Inc. venture with a Chinese entity. It appears Secretary. Address: 8430 NW 72nd Street, that these enterprises must be structured [FR Doc. 02–16760 Filed 7–3–02; 8:45 am] Miami, FL 33166. in such a way that the Chinese partner BILLING CODE 6320–01–P Date Revoked: May 25, 2002. controls the majority of the joint venture Reason: Failed to maintain a valid and that Chinese nationals must control bond. the highest levels of management. The FEDERAL MARITIME COMMISSION License Number: 3574F. Commission is also interested in hearing Name: I.T.N. of Miami, Inc. dba about any other impacts of the Ocean Transportation Intermediary License Revocations International, Transportation Network. Implementing Rules on companies Address: 8430 NW 72nd Street, serving the U.S.-China trade. The Federal Maritime Commission Miami, FL 33166. The Commission is particularly hereby gives notice that the following Date Revoked: May 25, 2002. seeking to establish a clear record of the Ocean Transportation Intermediary Reason: Failed to maintain a valid likely or anticipated impact of these licenses have been revoked pursuant to bond. rules on the services U.S. NVOCCs are section 19 of the Shipping Act of 1984 License Number: 10443N. now permitted to perform in China, (46 U.S.C. app. 1718) and the Name: Immortal Service Inc. what activities are prohibited, what regulations of the Commission Address: 440 South Hindry Avenue, requirements or prerequisites are pertaining to the licensing of Ocean Suite F, Inglewood, CA 90301. imposed and what, if any, detrimental Transportation Intermediaries, effective Date Revoked: June 6, 2002. effects these requirements and on the corresponding date shown below: Reason: Failed to maintain a valid License Number: 2770NF. prohibitions have on U.S. companies bond. doing business or seeking to do business Name: All Flags Forwarding Inc. License Number: 4246F. in China. It would also be helpful to Address: 147–35 183rd Street, Name: International Shipping Link, learn whether compliance with the Jamaica, NY 11434. Inc. Implementing Rules by ocean common Date Revoked: May 12, 2002. Address: 2418 W. Devon Avenue, carriers, agents or other entities has Reason: Failed to maintain valid Chicago, IL 60659. affected or is likely to affect the ability bonds. Date Revoked: May 24, 2002. of U.S. NVOCCs to do business and License Number: 13566N. Reason: Failed to maintain a valid serve customers in China and the U.S. Name: Amerilines—U.S.A., Inc. Address: 1890 NW 82nd Avenue, bond. In light of the publication of the Suite 112, Miami, FL 33126. License Number: 16503NF. Notice and Implementing Rules by the Date Revoked: May 12, 2002. Name: Lukini Shipping Inc. Government of the People’s Republic of Reason: Failed to maintain a valid Address: JFK International Airport, China, the Commission encourages bond. Cargo Bldg. 80, Room 203, Jamaica, NY companies affected by the Regulations License Number: 15077N. 11430. and the Implementing Rules to submit Name: Anchor Shipping Co. dba Date Revoked: May 25, 2002. comments to MOC. The Commission Anchor Shipping Line. Reason: Failed to maintain valid would also welcome comments from Address: 1031 Ives Dairy Road, Suite bonds. any carrier, shipper, intermediary or any 228, North Miami Beach, FL 33179. License Number: 16031N. other party directly or indirectly Date Revoked: June 1, 2002. affected by the Implementing Rules. Name: Marquis International Reason: Failed to maintain a valid Consolidators, Inc. Providing such comments will assist the bond. Commission in measuring the effects of Address: 8209 N.W. 68th Street, the Implementing Rules. Specifically, License Number: 17337NF. Miami, FL 33166. the Commission is seeking information Name: Clarke Transportation Services, Date Revoked: April 30, 2002. with regard to how companies serving Inc. Reason: Surrendered license Address: 2000 Professional Way, the U.S.-China trade will be affected by voluntarily. Bldg. 100, Woodstock, GA 30188. the Implementing Rules. Any License Number: 4613F. Date Revoked: May 17, 2002. supporting documentation would be Name: N.C.A. International Ocean Reason: Failed to maintain valid especially welcome. Upon request, the Freight Forwarders, Inc. bonds. Commission may hold information Address: 6801 Chippendale Court, submitted in response to this Further License Number: 1882F. Tampa, FL 33634. Notice of Inquiry confidential, pursuant Name: New England Household Date Revoked: May 25, 2002. International Division of New England to 46 U.S.C. 876(h) and 46 U.S.C. Reason: Failed to maintain a valid Household Moving & Storage, Inc. 1710a(d)(3). The Commission cannot, bond. however, ensure the confidentiality of Address: 104 Bartzak Drive, Holliston, MA 01746–0000. License Number: 15567NF. documents submitted via e-mail due to Name: Osher Corporation. the nature of such transmissions. Date Revoked: May 23, 2002. Reason: Failed to maintain a valid Address: 10838 27th Street, Miami, Persons who have commented on the bond. FL 33172. Commission’s prior NOI may wish to License Number: 15367N. Date Revoked: May 29, 2002. take this opportunity to supplement Name: IOCC Corp. Reason: Failed to maintain valid their comments, if necessary, in light of Address: 10865 NW 29th Street, Suite bonds. these new implementing rules. 200, Miami, FL 33172. License Number: 16171N. Now therefore, it is ordered, that this Date Revoked: June 9, 2002. Name: Petcon Air Freight (USA) Inc. Further Notice of Inquiry be published Reason: Failed to maintain a valid Address: 175–01 Rockaway Blvd., in the Federal Register. bond. Room 215, Jamaica, NY 11434.
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Date Revoked: May 25, 2002. Reason: Failed to maintain a valid Individual), Catherine Wagner, Vice Reason: Failed to maintain a valid bond. President. bond. Trac-Mar Network Inc., 7225 NW 25 License Number: 1941F. Sandra L. Kusumoto, Street, Suite 203, Miami, FL 33122. Name: Rome International Freight Director, Bureau of Consumer Complaints Officers: Teresita Rodriguez-Adan, Consultants, Inc. and Licensing. President (Qualifying Individual), Address: 8000 NW 68th Street, [FR Doc. 02–16759 Filed 7–3–02; 8:45 am] Juan J. Adan, Secretary. Miami, FL 33166. BILLING CODE 6720–01–P Ameritrans World Group, Inc., 7102 NW Date Revoked: May 25, 2002. 50th Street, Miami, FL 33166–5636. Reason: Failed to maintain a valid Officers: Martin Roy Leon, President, bond. FEDERAL MARITIME COMMISSION Cesar Ocampo, Senior Vice President, Henry Zuluaga, Exec. Vice President, License Number: 41F. Ocean Transportation Intermediary Carlos Ospina, Vice President Name: S. Jackson & Son, Inc. License Applicants Address: 1555 Poydras Street, Suite (Qualifying Individuals), Roy Leon Jr., 1600, New Orleans, LA 70112. Notice is hereby given that the Vice President. Date Revoked: May 8, 2002. following applicants have filed with the Speedex Air & Ocean, Inc., 12906 Acord Reason: Failed to maintain a valid Federal Maritime Commission an Street, Cerritos, CA 90703. Officer: bond. application for license as a Non-Vessel Jung Ah Shim, President (Qualifying License Number: 12905N. Operating Common Carrier and Ocean Individual). Name: Schaefco Container Ltd. Freight Forwarder—Ocean Dated: June 28, 2002. Address: 555 Route 1 South, Transportation Intermediary pursuant to Bryant L. VanBrakle, Woodbridge Towers, Iselin, NJ 08830. section 19 of the Shipping Act of 1984 Secretary. Date Revoked: June 6, 2002. as amended (46 U.S.C. app. 1718 and 46 [FR Doc. 02–16758 Filed 7–3–02; 8:45 am] CFR part 515). Reason: Failed to maintain a valid BILLING CODE 6730–01–P bond. Persons knowing of any reason why License Number: 1457F. the following applicants should not receive a license are requested to Name: Schmidt, Pritchard & Co., Inc. FEDERAL RESERVE SYSTEM Address: 9801 West Lawrence contact the Office of Transportation Avenue, Schiller Park, IL 60176. Intermediaries, Federal Maritime Agency Information Collection Date Revoked: May 23, 2002. Commission, Washington, DC 20573. Activities: Announcement of Board Reason: Failed to maintain a valid Non-Vessel Operating Common Carrier Approval Under Delegated Authority bond. Ocean Transportation Intermediary and Submission to OMB License Number: 2745NF. Applicants SUMMARY: Name: Ssangyong (U.S.A.), Inc. Go-Trans (New York) Ltd., 147–32 Address: 601 16th Street, Carlstadt, NJ Background Farmers Blvd., 2/F., Jamaica, NY 07072. 11434. Officer: Muhammad Bhatti, Notice is hereby given of the final Date Revoked: June 6, 2002. Chief Operating Officer (Qualifying approval of proposed information Reason: Failed to maintain valid collections by the Board of Governors of bonds. Individual). Marine Express, Inc., P.O. Box 6448, the Federal Reserve System (Board) License Number: 17334N. Concordia #249 Altos, Mayaguez, P.R. under OMB delegated authority, as per Name: Suburban Moving & Storage, 00681–6448. Officers: Nestor 5 CFR 1320.16 (OMB Regulations on Inc. Gonzalez, President (Qualifying Controlling Paperwork Burdens on the Address: 1720 Willow Avenue, Individual), Dr. Luis Aponte, Vice Public). Board–approved collections of Weehawken, NJ 07087. President. information are incorporated into the Date Revoked: May 23, 2002. Mirsonia, Inc., 611 Howard Street #236, official OMB inventory of currently Reason: Failed to maintain a valid Glendale, CA 91206. Officers: Jamie approved collections of information. bond. Yoon, Vice President (Qualifying Copies of the OMB 83–Is and supporting License Number: 11619N. Individual), Kiryong Lee, President. statements and approved collection of Name: Victoriana C. Tirona dba Zohar Worldwide LLC dba Relampago information instrument(s) are placed Bulakena Ocean & Air Forwarders. International, dba Relllampago into OMB’s public docket files. The Address: 4995 Mission Street, San Express, 1069 Sneath Lane, San Federal Reserve may not conduct or Francisco, CA 94112. Bruno, CA 94066. Officers: Houshang sponsor, and the respondent is not Date Revoked: June 9, 2002. Arasteh, Vice President (Qualifying required to respond to, an information Reason: Failed to maintain a valid Individual), Carlos A. Larios, Jr., collection that has been extended, bond. President. revised, or implemented on or after License Number: 16837F. Dimex Consulting, Inc., 118 W. Hazel October 1, 1995, unless it displays a Name: West Coast Forwarding, Inc. Street, Ste. A, Inglewood, CA 90302. currently valid OMB control number. Address: 3255 Wilshire Blvd., Suite Officer: Diem T. Nguyen, Owner. FOR FURTHER INFORMATION CONTACT: 1805, Los Angeles, CA 90010. Federal Reserve Board Clearance Date Revoked: May 2, 2002. Non-Vessel Operating Common Carrier Officer––Mary M. West––Division of Reason: Failed to maintain a valid and Ocean Freight Forwarder Research and Statistics, Board of bond. Transportation Intermediary Governors of the Federal Reserve Applicants License Number: 4341F. System, Washington, DC 20551 (202– Name: USA Logistics, Incorporated. Eastern Shipping Worldwide, Inc., 1050 452–3829); OMB Desk Officer–Joseph F. Address: 22029 West Conway Place, Busse Highway, Suite 125, Lackey, Jr.––Office of Information and Saugus, CA 91350. Bensenville, IL 60106. Officers: Eric Regulatory Affairs, Office of Date Revoked: May 22, 2002. Wagner, President (Qualifying Management and Budget, New
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Executive Office Building, Room 10235, writing on the standards enumerated in includes whether the acquisition of the Washington, DC 20503 (202–395–7316). the BHC Act (12 U.S.C. 1842(c)). If the nonbanking company complies with the proposal also involves the acquisition of standards in section 4 of the BHC Act Final Approval Under OMB Delegated a nonbanking company, the review also (12 U.S.C. 1843). Unless otherwise Authority of the Extension for Three includes whether the acquisition of the noted, nonbanking activities will be Years, Without Revision, of the nonbanking company complies with the conducted throughout the United States. Following Reports: standards in section 4 of the BHC Act Additional information on all bank 1. Report title: Recordkeeping (12 U.S.C. 1843). Unless otherwise holding companies may be obtained Requirements Associated with the Real noted, nonbanking activities will be from the National Information Center Estate Lending Standards Regulation for conducted throughout the United States. website at www.ffiec.gov/nic/. State Member Banks Additional information on all bank Unless otherwise noted, comments Agency form number: Reg H–5 holding companies may be obtained regarding each of these applications OMB Control number: 7100–0261 from the National Information Center must be received at the Reserve Bank Frequency: Aggregate report, website at www.ffiec.gov/nic/. indicated or the offices of the Board of quarterly; policy statement, annually Unless otherwise noted, comments Governors not later than July 29, 2002. Reporters: State member banks regarding each of these applications A. Federal Reserve Bank of Atlanta Annual reporting hours: 21,060 hours must be received at the Reserve Bank (Sue Costello, Vice President) 1000 Estimated average hours per response: indicated or the offices of the Board of Peachtree Street, N.E., Atlanta, Georgia Aggregate report, 5 hours; policy Governors not later than July 26, 2002. 30309–4470: statement, 20 hours A. Federal Reserve Bank of Kansas 1. The Colonial BancGroup, Inc., Number of respondents: 976 City (Susan Zubradt, Assistant Vice Montgomery, Alabama; to merge with Small businesses are affected. President) 925 Grand Avenue, Kansas Palm Beach National Holding Company, General description of report: This City, Missouri 64198–0001: Palm Beach, Florida, and thereby information collection is mandatory (12 1. First Commerce Financial indirectly acquire voting shares of Palm U.S.C. 1828(o)) and is not given Corporation, Marysville, Kansas; to Beach National Bank and Trust confidential treatment. become a bank holding company by Company, Palm Beach, Florida. Abstract: State member banks must acquiring 100 percent of the voting B. Federal Reserve Bank of Dallas adopt and maintain a written real estate shares of First Commerce Bank, (W. Arthur Tribble, Vice President) 2200 lending policy. Also, banks must National Association, Marysville, North Pearl Street, Dallas, Texas 75201– identify their loans in excess of the Kansas, a de novo bank. 2272: supervisory loan–to–value limits and Board of Governors of the Federal Reserve 1. Sterling Bancshares, Inc., Houston, report (at least quarterly) the aggregate System, June 27, 2002. Texas; to merge with ENB Bankshares, amount of the loans to the bank’s board Robert deV. Frierson, Inc., Dallas, Texas, and thereby of directors. Deputy Secretary of the Board. indirectly acquire voting shares of ENB Board of Governors of the Federal Reserve [FR Doc. 02–16662 Filed 7–3–02; 8:45 am] Delaware Bankshares, Inc., Wilmington, System, June 27, 2002. BILLING CODE 6210–01–S Delaware, and its banking subsidiary Jennifer J. Johnson Eagle National Bank, Dallas, Texas. Secretary of the Board. Board of Governors of the Federal Reserve [FR Doc. 02–16661 Filed 7–3–02; 8:45 am] FEDERAL RESERVE SYSTEM System, June 28, 2002. BILLING CODE 6210–01–S Robert deV. Frierson, Formations of, Acquisitions by, and Deputy Secretary of the Board. Mergers of Bank Holding Companies [FR Doc. 02–16783 Filed 7–3–02; 8:45 am] FEDERAL RESERVE SYSTEM The companies listed in this notice BILLING CODE 6210–01–S Formations of, Acquisitions by, and have applied to the Board for approval, Mergers of Bank Holding Companies pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) FEDERAL RETIREMENT THRIFT The companies listed in this notice (BHC Act), Regulation Y (12 CFR Part INVESTMENT BOARD have applied to the Board for approval, 225), and all other applicable statutes pursuant to the Bank Holding Company and regulations to become a bank Sunshine Act Meeting Act of 1956 (12 U.S.C. 1841 et seq.) holding company and/or to acquire the (BHC Act), Regulation Y (12 CFR Part assets or the ownership of, control of, or TIME AND DATE: 10 a.m. (EDT) July 15, 225), and all other applicable statutes the power to vote shares of a bank or 2002. and regulations to become a bank bank holding company and all of the PLACE: 4th Floor, Conference Room, holding company and/or to acquire the banks and nonbanking companies 1250 H Street, N.W., Washington, DC. assets or the ownership of, control of, or owned by the bank holding company, STATUS: Parts will be open to the public the power to vote shares of a bank or including the companies listed below. and part closed to the public. bank holding company and all of the The applications listed below, as well MATTERS TO BE CONSIDERED: banks and nonbanking companies as other related filings required by the owned by the bank holding company, Board, are available for immediate Parts Open to the Public including the companies listed below. inspection at the Federal Reserve Bank 1. Approval of the minutes of the June The applications listed below, as well indicated. The application also will be 17, 2002, Board member meeting. as other related filings required by the available for inspection at the offices of 2. Thrift Savings Plan activity report Board, are available for immediate the Board of Governors. Interested by the Executive Director (with inspection at the Federal Reserve Bank persons may express their views in discussion of litigation to be closed to indicated. The application also will be writing on the standards enumerated in the public). available for inspection at the offices of the BHC Act (12 U.S.C. 1842(c)). If the the Board of Governors. Interested proposal also involves the acquisition of Part Closed to the Public persons may express their views in a nonbanking company, the review also Discussion of litigation.
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CONTACT PERSON FOR MORE INFORMATION: Dated: June 21, 2002. their bona fide agents, including the Thomas J. Trabucco, Director, Office of Sandra R. Manning, District of Columbia, the External Affairs, (202) 942–1640. CGFM, Director, Procurement and Grants Commonwealth of Puerto Rico, the Office, Centers for Disease Control and Virgin Islands, the Commonwealth of Dated: July 2, 2002. Prevention. the Northern Mariana Islands, American Elizabeth S. Woodruff, [FR Doc. 02–16232 Filed 7–3–02; 8:45 am] Samoa, Guam, federally recognized Secretary to the Board, Federal Retirement BILLING CODE 4163–18–P Indian tribal governments, the Thrift Investment Board. Federated States of Micronesia, the [FR Doc. 02–17013 Filed 7–2–02; 2:14 pm] Republic of the Marshall Islands, and BILLING CODE 6760–01–M DEPARTMENT OF HEALTH AND the Republic of Palau. Only one HUMAN SERVICES application from each State or Territory may be submitted. Centers for Disease Control and To be eligible, applicants must Prevention DEPARTMENT OF HEALTH AND document a study population of at least HUMAN SERVICES [Program Announcement 02199] 30,000 live births per year (in order to be able to detect sufficient numbers of Centers for Disease Control and Centers of Excellence for Autism and cases) within a State, a contiguous area Prevention Other Developmental Disabilities of a State (such as the catchment of a Epidemiology; Notice of Availability of local health agency), or a contiguous Funds [Program Announcement 02175] area comprised of a combination of A. Purpose States, based on United States Census Applied Research on Antimicrobial Data (based on 2000 census data). This Resistance (AR): Validation of National The Centers for Disease Control and information should be placed directly Committee for Clinical Laboratory Prevention (CDC) announces the behind the face page of the application. availability of fiscal year (FY) 2002 Standards (NCCLS) Breakpoints for Applications that fail to submit the funds for a cooperative agreement Bacterial Pathogens of Public Health evidence requested above will be program for Centers of Excellence for Importance; Notice of Availability of considered non-responsive and returned Autism and Other Developmental without review. Funds; Amendment Disabilities Epidemiology. This program addresses the ‘‘Healthy People 2010’’ Note: Title 2 of the United States Code, A notice announcing the availability focus areas for Maternal, Infant, and Section 1611 states than an organization of Fiscal Year 2002 funds to fund grants described in section 501(c)(4) of the Internal Child Health. Revenue Code that engages in lobbying for Applied Research on Antimicrobial The purpose of the program is to Resistance (AR): Validation of National activities is not eligible to receive Federal collect and analyze epidemiologic data funds constituting an award, grant or loan. Committee for Clinical Laboratory on the prevalence, correlates, and Standards (NCCLS) Breakpoints for causes of autism and other D. Availability of Funds Bacterial Pathogens of Public Health developmental disabilities. The new Importance was published in the Center(s) will be part of an existing Approximately $400,000 to $700,000 Federal Register on June 4, 2002, Vol. collaborative network (which consist of will be available in FY 2002 to fund approximately one award. The average 67, No. 107, pages 38501–38503. The four Centers presently) investigating award will be approximately $500,000. notice is amended as follows: On page autism spectrum disorder (ASD) and It is expected that the award will begin 38502, first column, Section E. Program other developmental disabilities. The Centers will conduct active population- on or about September 30, 2002, and Requirements, Paragraph 3, should be will be made for a 12-month budget revised to read: based surveillance; multi-Center analytic case-control studies; and period within a project period of up to ‘‘2. For organisms for which NCCLS Center-initiated special studies. four years. Funding estimates may has yet to establish and publish a Quantifiable and measurable outcomes change. standardized susceptibility testing of the cooperative agreement will be It is anticipated that in FY 2003, method, a method in line with other measured against the Government additional approved but not funded NCCLS methods would have to be Performance Results Act performance awards may be made from this elucidated (including the appropriate goal, to find causes and risk factors for announcement, if funds become quality control organisms and the ranges birth defects and developmental available. of MICs or zone diameters that disabilities in order to develop Continuation awards within an constituted a test that was in control). prevention strategies. approved project period will be made Thus, potential projects include on the basis of satisfactory progress as validating existing interpretive criteria B. Authority and Catalog of Federal evidenced by required reports and the Domestic Assistance Number for pathogens of public health availability of funds. Matching funds are importance, developing new This program is authorized under not required for this program. interpretive criteria for pathogens of sections 301(a), 311 and 317(C) of the E. Program Requirements public health importance using existing Public Health Service Act, (42 U.S.C. In conducting activities to achieve the NCCLS methods and quality control, or Sections 241, 243, and 247b–4), as purpose of this program, the recipient developing new interpretive criteria and amended, and Section 102 of the Children’s Health Act of 2000, (Pub. L. will be responsible for the activities new antimicrobial susceptibility testing under ‘‘1. Recipient Activities,’’ and methods for pathogens of public health 106–310). The Catalog of Federal Domestic Assistance number is 93.283. CDC will be responsible for the importance using existing NCCLS activities listed under ‘‘2. CDC methods and quality control as a C. Eligible Applicants Activities.’’ starting point for novel test Assistance will be provided only to 1. Recipient Activities: development.’’ the Health Departments of States or a. Surveillance System.
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(1) Develop or enhance a population- d. Disseminate findings of the Applications based epidemiologic surveillance Surveillance, Collaborative Case- Applicants should use the system for ASD and other Control, and Center-Initiated Special information in the Program developmental disabilities to generate Studies activities for the professional Requirements, Other Requirements, and timely population-based data. Activities community and the public to increase Evaluation Criteria sections to develop may include, but are not limited to, public health awareness. the application content. The application development or enhancement of e. Participate fully as a member of the will be evaluated on the criteria listed, surveillance case definitions, multiple coordinating committee, which is so it is important for applicants to source case ascertainment methods (e.g., comprised of principal investigators of follow the specific information noted in from educational and medical sources), all funded Centers of Excellence. laying out the program plan. and data collection instruments. 2. CDC Activities: G. Submission and Deadline (2) Establish or enhance a multiple- a. Surveillance Activities. source methodology for case (1) Assist recipient in the Letter of Intent (LOI) ascertainment by developing development and implementation of collaborative relationships with On or before July 22, 2002, submit the surveillance activities including the appropriate professionals and LOI to the official designated for development of standardized organizations. programmatic technical assistance surveillance case definitions. (3) Develop or enhance a plan for identified in the ‘‘Where to Obtain training community service providers to (2) Provide current information on Additional Information’’ section of this improve case ascertainment. surveillance methods, including the announcement. identification of potential sources for (4) Implement or enhance quality Application assurance procedures to ensure that surveillance. Submit the original and two copies of study protocols are followed. (3) Assist recipient, in the PHS 398 (OMB Number 0925–0001). (5) Develop or enhance an evaluation development of quality assurance procedures. Forms are available at the following plan for estimating the validity and Internet address: http://www.cdc.gov/ (4) Provide assistance, in the completeness of the surveillance od/pgo/forminfo.htm. development of an evaluation plan for system. The application must be received on the completeness and validity of data (6) Develop, implement, and evaluate or before 5 p.m. Eastern Time, August from the surveillance system. a plan to use surveillance data to 9, 2002. Submit the application to: improve community and service (5) Facilitate communication/ Technical Information Management-PA provider awareness regarding ASD and coordination among funded Centers, to 02199, Procurement and Grants Office, other developmental disabilities and/or improve efficiency of activities and Centers for Disease Control and access of children with ASD and other quality of surveillance data. Prevention, 2920 Brandywine Rd, Room developmental disabilities to (6) Provide technical consultation 3000, Atlanta, GA 30341–4146. comprehensive, community-based, regarding data analyses. Deadline: Applications shall be family-centered care. b. Collaborative Case-Control Studies. considered as meeting the deadline if b. Collaborative Case-Control Study: (1) Assist recipients in developing a they are received before 5 p.m. Eastern Collaborate with other previously plan for on-site activities, such as Time on the deadline date. Applicants funded Centers to design, implement, selection and enrollment of study sending applications by the United analyze, and evaluate joint case-control subjects, implementation of the joint States Postal Service or commercial studies based on a pooled study data study protocol, quality assurance delivery services must ensure that the base. procedures, data management, and carrier will be able to guarantee delivery c. Center-Initiated Special Studies: timely submission of computerized data of the application by the closing date Develop, implement, and evaluate a to a central repository for inclusion in and time. If an application is received Center-initiated special study drawing a pooled data set. after closing due to (1) carrier error, on special strengths and expertise of (2) Obtain CDC Institutional Review when the carrier accepted the package Center staff. It is anticipated that Board (IRB) clearances and Office of with a guarantee for delivery by the development of the special study would Management and Budget (OMB) closing date and time, or (2) significant be initiated in Year Two of the grant clearance as necessary. weather delays or natural disasters, CDC award and utilize the Center’s will upon receipt of proper surveillance and case-control study F. Content of Application documentation, consider the application infrastructure. The study could include, Letter of Intent (LOI) as having been received by the deadline. but may not be limited to, the following Applications which do not meet the issues related to ASD or other An LOI is requested for this program above criteria will not be eligible for developmental disabilities: announcement. The LOI will not be competition and will be discarded. (1) Evaluation of prenatal, perinatal, used to eliminate potential applicants, Applicants will be notified of their and/or postnatal risk factors, including but it will enable CDC to determine the failure to meet the submission genetic factors and environmental level of interest and plan for the review requirements. exposures, more efficiently. The LOI should be no (2) Evaluation of natural history, more than two, double-spaced pages, H. Evaluation Criteria including associated developmental printed on one side, with one-inch Applicants are required to provide disabilities and secondary conditions, margins and 12 point font. The LOI Measures of Effectiveness that will (3) Identification of biomarkers, should include the following demonstrate the accomplishment of (4) Evaluation of economic costs, information: this program various identified objectives of the (5) Development, implementation, announcement number; applicant’s grant/cooperative agreement. Measures and evaluation of intervention programs name and address; project director’s of Effectiveness must relate to the for children with ASD and their name, phone number, and e-mail performance goals as stated in section families, address. ‘‘A. Purpose’’ of this announcement.
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Measures must be objective/quantitative 3. Goals and Objectives (15 points). b. Extent to which applicant has the and must measure the intended a. Extent to which applicant clearly ability to manage and coordinate outcome. These Measures of describes the short-term and long-term surveillance, research, and integration Effectiveness shall be submitted with goals and measurable objectives of the components of the project. the application and shall be an element project; c. Extent to which applicant of evaluation. b. Extent to which applicant’s goals demonstrates expertise in abstracting Each application will be evaluated and objectives are realistic and are and reviewing records. individually against the following consistent with the stated goals and d. Extent to which there is criteria by an independent review group purpose of this announcement; appropriate dedicated staff time to appointed by CDC. c. The degree to which applicant has develop and implement the project. 1. Description of Program and met the CDC policy requirements e. Extent to which applicant provides Methodology (30 points). regarding the inclusion of women, an appropriate time line and includes a. Extent to which applicant describes ethnic and racial groups in the proposed activities and personnel responsibilities. the methods they will use to (1) identify research. This includes: f. Extent to which applicant all relevant sources for surveillance case (1) The proposed plan for the demonstrates an organizational ascertainment for ASD and other inclusion of both sexes and racial and structure (include an organizational developmental disabilities within the ethnic minority populations for chart) and facilities/space/equipment study area; (2) obtain permission to appropriate representation. that are adequate to carry out the access records from relevant sources; (3) (2) The proposed justification when activities of the program. develop standard case definitions for representation is limited or absent. 6. Evaluation Plan (10 points). ASD and other developmental (3) A statement as to whether the a. Extent to which applicant describes disabilities and implement a strategy to design of the study is adequate to an evaluation plan that will monitor conduct multiple-source case measure differences when warranted. reliability, progress, timeliness, and ascertainment; (4) train community (4) A statement as to whether the completeness of the objectives and service providers to improve case plans for recruitment and outreach for activities of the project. ascertainment; (5) develop and study participants include the process implement quality assurance procedures b. Extent to which applicant describes of establishing partnerships with a study to evaluate the completeness of and an evaluation plan for the community(ies) and recognition of surveillance system; (6) develop and ascertainment of children for the mutual benefits. surveillance portion of the study. implement a plan to use surveillance 4. Collaborative Efforts (15 points). data to improve public awareness 7. Human Subjects Review (not a. Extent to which applicant scored). regarding ASD and other developmental demonstrates the ability to collaborate disabilities and/or access to care of Does the applicant adequately address with multiple sources such as school the requirements of 45 CFR part 46 for affected children; and (7) develop an systems, diagnostic centers, health/ analytic and dissemination plan, and the protection of human subjects? mental health service providers and 8. Budget (not scored). prepare manuscripts. other intervention service providers for b. Extent to which applicant describes The extent to which the budget is the purpose of case ascertainment the plan for implementing the reasonable, clearly justified, and (include written assurances). collaborative case-control study, consistent with the intended use of b. Extent to which applicant including selection and enrollment of funds. Applicants should include in demonstrates their willingness to cases and controls from the applicant’s their first year budget two trips to CDC, collaborate with other Centers to study population. Atlanta for up to two persons and two c. Extent to which the applicant develop joint project efforts and carry days each trip. out the joint project efforts in a manner describes the objectives, based on I. Other Requirements special strengths and expertise of the that allows for pooling of standardized applicant, for a Center-initiated special data. Technical Reporting Requirements c. Extent to which recipient identifies study. Provide CDC with an original plus 2. Understanding the Problem (15 possible collaborative relationships with two copies of: points). existing surveillance and research a. Extent to which applicant has a programs that may enhance recipients’ 1. Semiannual progress reports, which clear, concise understanding of the future research activities (e.g., birth should include: requirements and purpose of the defects surveillance, National Institutes a. Brief project description; cooperative agreement; of Health, Collaborative Programs of b. Comparison of the actual b. Extent to which applicant Excellence in Autism). accomplishments to the goals and understands the issues, challenges, and d. Extent to which collaborative objectives established for the period; barriers associated with developing and efforts with other relevant programs are c. Data requirements that implementing population-based documented (such as Part C, State demonstrates measures of effectiveness. surveillance and epidemiologic studies developmental disabilities programs, In the case that established goals and for ASD and other developmental genetics programs, etc.). objectives are not accomplished, or are disabilities; 5. Staffing and Management System delayed, please discuss the reason for c. Extent to which applicant (15 points). the goals and objectives not being understands the issues, challenges, and a. Extent to which key personnel have accomplished, as well as the anticipated barriers associated with case qualifications, skills and experience in corrective action needed to achieve the ascertainment for ASD; and epidemiologic methods, public health goals and objectives. If there is a need d. Extent to which applicant describes surveillance, data management and to change or delete goals or objectives, the need for funds to develop/enhance analysis to develop and implement please discuss and explain the reason; ASD and other developmental disability surveillance and analytic studies in d. Other pertinent information, surveillance and epidemiologic studies ASD and other developmental including preliminary findings from the in their State. disabilities. analysis of any available data; and
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e. Financial recap of obligated dollars DEPARTMENT OF HEALTH AND B. Authority and Catalog of Federal to date as a percentage of total available HUMAN SERVICES Domestic Assistance Number funds. This program is authorized under Centers for Disease Control and 2. Financial status report, no more section 301(a) (42 U.S.C. 241(a)) of the Prevention than 90 days after the end of the budget Public Health Service Act and section period; and 391(a) (42 U.S.C. 280(b)) of the Public [Program Announcement 02059] 3. Final financial status and Service Health Act, as amended. The catalog of Federal Domestic Assistance performance reports, no more than 90 Cooperative Agreement for number is 93.136. days after the end of the project period. Development of the National Violent Send all reports to the Grants Death Reporting System (NVDRS); C. Eligible Applicants Management Specialist identified in the Notice of Availability of Funds Assistance will be provided only to ‘‘Where to Obtain Additional A. Purpose the health departments of states or their Information’’ section of this bona fide agents, including the District announcement. The Centers for Disease Control and of Columbia, the Commonwealth of Prevention (CDC) announces the Puerto Rico, the Virgin Islands, the AR–1 Human Subjects Requirements availability of fiscal year (FY) 2002 Commonwealth of the Northern Mariana AR–2 Requirements for Inclusion of funds for a cooperative agreement Islands, American Samoa, Guam, the Women and Racial and Ethnic program for Development of the Federated States of Micronesia, the Minorities in Research National Violent Death Reporting Republic of the Marshall Islands, the AR–7 Executive Order 12372 Review System (NVDRS). This program Republic of Palau, and the federally addresses the ‘‘Healthy People 2010’’ recognized Indian tribal governments. In AR–9 Paperwork Reduction Act focus area of Injury and Violence consultation with States, assistance may Requirements Prevention. be provided to political subdivisions of AR–10 Smoke-Free Workplace The purpose of the program is to States. Requirements begin establishing state violent death The ability to obtain population-based AR–11 Healthy People 2010 information collection systems that will information from core data sets is form the basis of NVDRS. The purpose crucial for the successful development AR–12 Lobbying Restrictions of NVDRS is to generate public health of the NVDRS. Eligible applicants must AR–22 Research Integrity surveillance information at the national, document through letters of support access to information on individual, J. Where To Obtain Additional state, and local levels that is more detailed, useful, and timely than is identifiable decedents from all of the Information currently available. This information following data sources: This and other CDC announcements will help develop, inform, and evaluate 1. Death certificates. can be found on the CDC home page violence prevention strategies at both 2. Medical examiner and/or coroner records. Internet address—http://www.cdc.gov state and national levels. The proposed 3. Police records (Supplemental Click on ‘‘Funding’’ then ‘‘Grants’’ and system will build upon a pilot system, Homicide Reports at a minimum). ‘‘Cooperative Agreements.’’ the National Violent Injury Statistics System (NVISS), that has been under 4. Crime laboratory records. If you have questions after reviewing development since 1999. Additional The letters of support must come from the contents of all the documents, information on this pilot system can be the agency authorized to grant access to business management technical found at www.NVISS.org. the specific required data. They must assistance may be obtained from: Sheryl note the most recent year for which data Measurable outcomes of the program are available and make a statement Heard, Grants Management Specialist, will be in alignment with one or more regarding a memorandum of agreement/ Acquisition and Assistance Branch B, of the following performance goals for understanding that is in place between Procurement and Grants Office, Centers the National Center for Injury the applicant and the data agency. The for Disease Control and Prevention, Prevention and Control (NCIPC): Announcement 02199, 2920 memorandum of agreement must 1. Reduce the risk of youth violence. Brandywine Road, Room 3000, Atlanta, provide the applicant access to data GA 30341–4146, Telephone number: 2. Reduce violence against women. while specifying any limitations 770–488–2723, email address: 3. Enhance the capacity of states to regarding data use. A copy of the [email protected]. implement effective rape prevention memorandum of agreement/ and education programs. understanding should accompany each For program technical assistance, letter of support to confirm access. 4. Increase external input on the contact: Frank Destefano, M.D., M.P.H., Applicants from states that do not research priorities, policies, and National Center on Birth Defects and have centralized, statewide medical procedures related to the extramural Development Disabilities, 4770 Buford examiner/coroner or police records research supported by CDC. Highway, Mail Stop F–15, Atlanta, must obtain the letters of support from Georgia 30341, Telephone number: 770– 5. Provide online access to injury the appropriate agencies serving the 488–7288, email address: [email protected]. prevention data. three largest cities within the state. Dated: June 27, 2002. 6. Improve the uniformity, quality, Applications that fail to submit and accessibility of emergency evidence listed above will be considered Sandra R. Manning, department data for public health non responsive and will be returned CGFM, Director, Procurement and Grants surveillance in several states; ultimately without review. Office, Centers for Disease Control and developing the capacity to improve data Funding will be available to those Prevention. in all states through development of applicants who are willing to pilot test [FR Doc. 02–16815 Filed 7–3–02; 8:45 am] guidelines, recommendations, or a child fatality NVDRS module BILLING CODE 4163–18–P technical assistance. developed to collect additional data
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from child fatality review committees ‘‘New’’ and ‘‘Experienced’’ system record tracking system, edit reports, on violent deaths occurring in children applications will be evaluated systematic review of the accuracy and less than 18 years of age. separately; at least one applicant from completeness of abstracted data from all each group will be funded. It is core data sources, and methods to Minimum Requirements expected that the awards will begin on identify and resolve case ascertainment In order to qualify for this funding, or about September 30, 2002 and will be and data collection and processing the applicant must provide evidence of made for a 12-month budget period problems, e.g., identifying and removing an existing centralized statewide child within a project period of up to five duplicate records prior to submission to fatality review committee and access to years. Funding estimates may change. CDC. information on individual, identifiable Approximately $100,000 of optional h. Transmit data free of personal decedents generated by this committee. funding is available to fund up to five identifiers electronically to CDC using a Acceptable documentation, at a states to pilot test the child fatality specified time schedule. minimum, is a letter of support from the NVDRS module. It is expected the i. Disseminate surveillance results. child fatality review committee on average award will be $20,000. It is j. Evaluate the surveillance system committee letterhead. The letter must expected that the awards will begin on according to standard guidelines, note the most recent year for which data or about September 30, 2002 and will be including simplicity, flexibility, data are available and make a statement made for a 12-month budget period quality, acceptability, sensitivity, regarding a memorandum of agreement/ within a project period of up to five predictive value positive, understanding that is in place between years. Funding estimates may change. representativeness, timeliness and the applicant and the data agency. The Matching funds are not required for stability. (See MMWR memorandum of agreement must this program. Recommendations and Reports, provide the applicant access to data Continuation awards within an ‘‘Updated guidelines for evaluating while specifying any limitations approved project period will be made public health surveillance systems,’’ regarding data use. A copy of the on the basis of satisfactory progress, as RR–13, vol. 50, July 27, 2001.) memorandum of agreement/ evidenced by required reports, and the k. Prepare standard reports with understanding should accompany each availability of funds. aggregated data and distribute them widely. letter of support to confirm access. E. Program Requirements Applicants that do not apply for this l. Share information learned from optional funding will not be considered In conducting activities to achieve the project through presentations, peer- non responsive because this activity is purpose of this program, the recipient reviewed journals and media events. optional. will be responsible for the activities m. Participate in a collaborative effort Applications will be classified into under 1. or 2. and 3. (if applying for to establish a uniform violent death two categories, ‘‘New’’ and optional funds), Recipient Activities, reporting system across states. Meetings ‘‘Experienced.’’ States with funding and CDC will be responsible for the will be held on a semiannual basis. from an external source (other than state activities under 4. CDC Activities. For Experienced Violent Death funds) for any form of violent death For New Violent Death Reporting Reporting Systems reporting or surveillance occurring Systems 2. Recipient Activities. among adults, defined as 18 years of age 1. Recipient Activities. a. Maintain an advisory committee or older, will be considered an a. Establish an advisory committee that will help in the enhancement of the ‘‘Experienced’’ system. States with that will help in the development of the reporting system. The committee should surveillance projects (state or local) state violent death reporting system. be able to help develop methods for data funded by the Harvard Injury Control Membership should include dissemination and set priorities for Research Center as part of the NVISS representatives from agencies that helping to develop prevention will be considered Experienced. States control medical examiner/coroner strategies. The committee should without any such external funding will records, death certificates, police include, at a minimum, representatives be considered a ‘‘New’’ system. Funds records, and crime laboratory data. from agencies that control the core data awarded for this program cannot be b. Establish routine access to uniquely sources. used to supplant (replace) existing identifiable case information from each b. Maintain or expand routine access activity funds. of the four critical data sources for to uniquely identifiable case Note: Title 2 of the United States Code deaths occurring on January 1, 2003 or information from each of the four core section 1611 states that an organization later. data sources for deaths occurring on described in section 501(c)(4) of the Internal c. Use uniform data elements January 1, 2003 or later. Revenue Code that engages in lobbying provided by the CDC to collect required c. Use uniform data elements activities is not eligible to receive Federal data. provided by the CDC to collect required funds constituting an award, grant or loan. d. Abstract and code uniform data data. d. Use or modify existing procedures D. Availability of Funds elements from all core data sources for all cases identified. that combine information from the data Approximately $1.2 million is e. Develop procedures to combine sources. Maintain a unique case ID available in FY 2002 to fund information from the data sources. number. approximately five awards. It is Maintain a unique case ID number. e. Maintain or modify (1) an existing expected that the average award will be f. Establish (1) a centralized location secure data storage system that allows $240,000, ranging from $150,000 to for maintaining a secure data storage for ready access and retrieval of all $220,000 for states with up to 800 cases system that allows for ready access and abstracted and edited data and (2) off- of violent death in calendar year 2000 retrieval of abstracted and edited data site backup data storage system for all and from $220,000 to $320,000 for states and (2) an off-site backup storage system abstracted and edited data from the core with greater than 800 cases of violent of abstracted and edited data. data sources. death in 2000. At least one applicant g. Develop a quality assurance f. Develop a quality assurance from each funding range will be funded. program that includes an automated program that includes an automated
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record tracking system, edit reports, distributed (a stand-alone server located number of violent deaths category into systematic review of the accuracy and in the state) system. The software will which the state fits (less than or equal completeness of abstracted data from all be menu-driven with editing functions, to 800 or greater than 800 deaths), and core data sources, and methods to data transmission protocols, and report whether the state is applying for the identify and resolve case ascertainment options for use in data review and child fatality NVDRS module optional and data collection and processing quality assurance by the state prior to funding. problems e.g., identifying and removing submission to CDC. 3. Background. duplicate records prior to submission to c. Provide training in data standards 4. Goal(s) and Objectives. CDC. and coding, data entry, data editing and 5. Methods. g. Transmit data free of personal other quality assurance functions, 6. Experience. identifiers electronically to the CDC record tracking, and transmission of 7. Capacity and Staffing. using a specified time schedule. data to the CDC. 8. Evaluation. h. Disseminate surveillance results. d. Provide technical assistance in 9. Collaboration. i. Evaluate the surveillance system solving problems in all aspects of the 10. Human Subjects. according to standard guidelines system. 11. Budget. including simplicity, flexibility, data e. Provide updates to the necessary 12. Plan for incorporating child quality, acceptability, sensitivity, software as needed. fatality NVDRS module into existing or predictive value positive, f. Review submitted records for proposed state violent death system. representativeness, timeliness and quality and completeness and provide (Only if applying for child fatality stability. (See MMWR feedback to recipients. Work with the NVDRS module optional funds). Recommendations and Reports, recipient to systematically resolve 13. Appendices. ‘‘Updated guidelines for evaluating problems of missing or inaccurate data. G. Submission and Deadline public health surveillance systems,’’ g. Prepare an analysis file of final RR–13, vol. 50, July 7, 2001.) edited data to be shared with the Application j. Prepare standard reports with recipient for data analysis and reporting Submit the original and two copies of aggregated data and distribute them of findings. PHS 5161–1 (OMB Number 0920–0428). widely. h. Prepare standard reports with Forms are available in the application k. Share information learned from the aggregated data and distribute them kit and at the following Internet address: project through presentations, peer widely. www.cdc.gov/od/pgo/forminfo.htm review journals and media events. F. Content Application forms must be submitted l. Participate in a collaborative effort in the following order: to establish a uniform violent death Applications Cover Letter reporting system across states. Meetings The Program Announcement title and Table of Contents will be held on a semiannual basis. number must appear in the application. Application Child Fatality NVDRS Module Use the information in the Program Budget Information Form Requirements, Other Requirements, and Budget Justification 3. Recipient Activities. Evaluation Criteria sections to develop Checklist a. Establish or maintain partnership the application content. Your Assurances with child death review team(s). application will be evaluated on the Certifications b. Use uniform data elements criteria listed, so it is important to Disclosure Form provided by the CDC to collect required follow them in laying out your program Human Subjects Certification data. plan. The narrative should be no more Indirect Cost Rate Agreement c. Transmit data free of personal than 30 pages, double-spaced, printed Narrative identifiers electronically to the CDC on one side, with one inch margins, and The application must be received on using a specified time schedule. unreduced font. The total number of or before 5:00 p.m. Eastern Time August d. Provide feedback to CDC regarding pages should not exceed 65 pages, 19, 2002. Submit the application to: the appropriateness of module for including appendices and abstract. Technical Information Management gaining data related to violent deaths to Applicants that fit into the Section, PA 02059, Procurement and children. ‘‘Experienced’’ category are allowed up Grants Office, Centers for Disease Note: ‘‘New’’ recipients may choose to to an additional five pages for a required Control and Prevention (CDC), 2920 begin data gathering in smaller geographic appendix that evaluates their current Brandywine Road, Room 3000, Atlanta, areas, such as a city or region rather than violent death surveillance system GA 30341–4146. beginning statewide. according to standard guidelines. States Deadline: Applications will be ‘‘Experienced’’ recipients may choose applying for funding to pilot test the considered as meeting the deadline if to expand data gathering to a broader child fatality NVDRS module should they are received before 5 p.m. Eastern geographic area, region or statewide, if submit a separate plan no greater than Time on the deadline date. Applicants not currently statewide. If an applicant five pages in length. sending applications by the United chooses to begin collecting data in a The narrative should consist of, at a States Postal Service or commercial portion of the state, the applicant must minimum, a Plan, Objectives, Methods, delivery services must ensure that the outline a plan for expansion statewide Evaluation and Budget. carrier will be able to guarantee delivery within the five-year project period. The application narrative should of the application by the closing date 4. CDC Activities. include the following information: and time. If an application is received a. Provide required uniform data 1. Documentation of access to after closing due to (1) carrier error, elements and definitions to be collected required data source. when the carrier accepted the package similar to those used by NVISS. 2. A one-page abstract of proposed with a guarantee for delivery by the b. Provide standardized software that activities and project outcomes. The closing date and time, or (2) significant will be used to transmit data to CDC, abstract should specify the type of weather delays or natural disasters, CDC either through a web-based or applicant (‘‘new’’ or ‘‘experienced’’), the will upon receipt of proper
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documentation, consider the application collecting, linking, editing, managing The extent that the applicant as having been received by the deadline. and analyzing surveillance information documents the magnitude of the violent Applications which do not meet the from multiple data sets, especially death problem in the applicant’s state above criteria will not be eligible for experience with mortality surveillance. and/or target area. competition and will be discarded. b. The extent that the applicant 8. Child Fatality NVDRS Module Plan Applicants will be notified of their provides evidence of experience in (Not Scored). failure to meet the submission injury surveillance, conducting data The extent that the applicant requirements. quality assurance activities and adequately describes how the child generating data reports. fatality NVDRS module will be H. Evaluation Criteria 4. Capacity and Staffing (15 points). incorporated into the existing or Applicants are required to provide a. The extent that the applicant proposed state violent death reporting Measures of Effectiveness that will provides evidence of existing staff with system. demonstrate the accomplishment of the SAS and Microsoft Access expertise, 9. Human Subjects (Not Scored). various identified objectives of the computer programming skills, and skills The extent that the applicant cooperative agreement. Measures of in data management and quality adequately addresses the requirements Effectiveness must relate to the assurance, especially involving large of 45 CFR Part 46 for the protection of performance goals as stated in section complex databases, or a plan (position human subjects. ‘‘A. Purpose’’ of this announcement. description) to hire someone with such 10. Budget (Not Scored). Measures must be objective and skills and expertise. Resumes or a. The extent that the budget request quantitative and must measure the curriculum vitae should be included. is clearly explained, adequately intended outcome. These Measures of b. The extent that the applicant justified, reasonable, sufficient and Effectiveness will be submitted with the provides a time table showing when consistent with the stated objectives and application and will be an element of information regarding the occurrence of planned activities. evaluation. a violent death during a given calendar The Budget should include funds for Each application will be evaluated quarter is available to the applicant from at least two trips to CDC for program individually against the following each of the four required data sources. related meetings and training. b. If applying to pilot test the child criteria by an independent review group c. The extent that the applicant fatality NVDRS module, a separate appointed by CDC. describes existing or needed computer 1. Methods (25 points). facilities for storing, managing and budget must be attached. a. The extent that the applicant transmitting data to CDC. Note: Applicants applying for additional describes the methods used for case 5. Collaboration (15 points). funds to pilot test the child fatality NVDRS ascertainment and those used to access a. The extent that the applicant module will only receive this funding if they and abstract data from core data sources. provides evidence of involvement by successfully compete for NVDRS funding. key stakeholders in the current system This should include a discussion of I. Other Requirements methods used in motivating reporting or a plan for including key stakeholders sources, ensuring high quality data in the development of a violent death Technical Reporting Requirements abstraction, and resolving data issues. reporting system. Provide CDC with original plus two b. The extent that the applicant b. The extent that the applicant copies of: documents a detailed and clear documents the quality and specificity of 1. Semiannual progress reports. The description of how linkage of records access to required and optional data progress report will include a data from different sources will be or is sources, e.g., the limitations of that requirement that demonstrates measures accomplished. access, the most recent year data are of effectiveness. c. The extent that the applicant available, the timeliness and availability 2. Financial status report, no more describes how data will be maintained, of data from all core and optional data than 90 days after the end of the budget edited, and transferred to the CDC from sources, the duration of access, etc. period. a central location in the state. Information from the letters of support 3. Final financial and performance d. The extent that the applicant will be considered in this context. reports, no more than 90 days after the provides a five-year time line for the c. The extent that the applicant end of the project period. planned activities. provides additional letters of support Send all reports to the Grants e. The extent that the applicant from potential partners in the project. Management Specialist identified in the provides a detailed plan for assuring d. The extent that the letters of ‘‘Where to Obtain Additional confidentiality where required by state support document specific Information’’ section of this law or regulation. contributions of the partner, including announcement. f. The extent that the applicant but not limited to a description of the The following additional provides evidence that proposed precise nature of past and proposed requirements are applicable to this activities are not duplications of collaborations, products, services, and program. For a complete description of existing activities. (Experienced other activities that will be provided by each, see Attachment 1 of the applicants only) and to the applicant through the application kit. 2. Goal(s) and Objectives (15 points). proposed collaboration. AR–1 Human Subjects Requirements a. The extent that the applicant has 6. Evaluation (10 points). AR–2 Requirements for Inclusion of included goals which are relevant and a. The extent that the applicant Women and Racial and Ethnic consistent with the purpose of the provides a detailed plan for evaluating Minorities in Research program announcement. the surveillance system. The plan AR–10 Smoke-Free Workplace b. The extent that the objectives are should include standard surveillance Requirements specific, measurable, assigned, realistic, evaluation measures described above. AR–11 Healthy People 2010 and time-phased. b. The extent that the applicant AR–12 Lobbying Restrictions 3. Experience (15 points). describes both system and data quality AR–13 Prohibition on Use of CDC a. The extent that the applicant assurance procedures. Funds for Certain Gun Control documents experience in accessing, 7. Background (5 points). Activities
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AR–21 Small, Minority, Women- years of support. Competition is limited The Public Health Service (PHS) Owned Businesses to UMCP because of the unique strongly encourages all award recipients AR–22 Research Integrity partnership between FDA and UMCP. to provide a smoke-free workplace and The cooperative agreement will to discourage the use of all tobacco J. Where To Obtain Additional continue to allow for a more efficient products. This is consistent with the Information use of research, education, and outreach PHS mission to protect and advance the This and other CDC announcements, resources which enhances overall physical and mental health of the the necessary applications, and public health by expanding and American people. associated forms can be found on the improving food safety and nutrition FDA is committed to achieving the CDC home page Internet address—http:/ programs as well as other program areas health promotion and disease /www.cdc.gov Click on ‘‘Funding’’ then that impact on public health policy. prevention objectives of ‘‘Healthy ‘‘Grants and Cooperative Agreements.’’ DATES: Submit the application by People 2010,’’ a national effort to reduce For business management assistance, August 19, 2002. If this date falls on a morbidity and mortality and to improve contact: Van A. King, Grants weekend, it will be extended to quality of life. Applicants may obtain a Management Specialist ,Grants Monday; if this date falls on a holiday, paper copy of the ‘‘Healthy People Management Branch, Procurement and it will be extended to the following 2010’’ objectives, volumes I and II, Grants Office, Centers for Disease workday. conference edition (B0074) for $22 per Control and Prevention, 2920 set, by writing to the Office of Disease Brandywine Road, Room 3000, Atlanta, ADDRESSES: The completed application Prevention and Health Promotion GA 30341–4146, Telephone number: should be submitted to Peggy Jones, Communication Support Center (770)488–2751, E-mail address: Grants Management Officer, Division of (Center), P.O. Box 37366, Washington, [email protected]. Contracts and Procurement Management DC 20013–7366. Each of the 28 chapters For program technical assistance, (HFA–520), Food and Drug of ‘‘Healthy People 2010’’ is priced at $2 contact: Leroy Frazier, Jr., MSPH, CHES, Administration, 5600 Fishers Lane, per copy. Telephone orders can be Division of Violence Prevention, Rockville, MD 20857. If the application placed to the Center on 301–468–5690. National Center for Injury Prevention is either hand carried or commercially The Center also sells the complete and Control, Centers for Disease Control delivered, it should be addressed to conference edition in CD-ROM format and Prevention, 4770 Buford Hwy, NE, Peggy Jones, 5630 Fishers Lane, rm. (B0071) for $5. This publication is MS K60, Atlanta, GA 30341, Telephone 2129, Rockville, MD 20857, 301–827– available as well on the Internet at http:/ number: (770)488–1507, E-mail address: 7160, FAX 301–827–7101, e-mail /health.gov/healthypeople. Internet [email protected]. address: [email protected]. viewers should proceed to The application forms are available ‘‘Publications.’’ Dated: June 27, 2002. either from Peggy Jones (see ADDRESSES) I. Background Sandra R. Manning, or by the Internet at http:// CGFM Director, Procurement and Grants grants.nih.gov/grants/funding/phs398/ Through a formal Memorandum of Office, Centers for Disease Control and phs398.html. NOTE: Do not send the Understanding (MOU) between FDA Prevention. application to the Center for Scientific and UMCP, JIFSAN was established in [FR Doc. 02–16814 Filed 7–3–02; 8:45 am] Research (CSR), National Institutes of April 1996. JIFSAN creates a BILLING CODE 4163–18–P Health (NIH). partnership that allows for more efficient use of research, education, and FOR FURTHER INFORMATION CONTACT: outreach resources, thereby enhancing DEPARTMENT OF HEALTH AND Regarding the administrative and financial management aspects of this overall public health by expanding and HUMAN SERVICES improving food safety and nutrition notice: Peggy Jones (see ADDRESSES). programs as well as in other program Food and Drug Administration Regarding the programmatic aspects: Christine L. Hileman, Center for Food areas that impact on public health Cooperative Agreement To Support the Safety and Applied Nutrition (HFS– policy. The primary focus of JIFSAN is Joint Institute for Food Safety and 006), Food and Drug Administration, food safety and nutrition, specifically as Applied Nutrition; Notice of Intent To 200 C St. SW., Washington, DC 20204, related to risk analysis, applied Renew a Cooperative Agreement; 202–205–7153; e-mail: microbiology, natural toxins, chemical RFA–FDA–CFSAN–02–04 [email protected]. contaminants, animal health sciences, biotechnology and food composition AGENCY: Food and Drug Administration, SUPPLEMENTARY INFORMATION: FDA is and nutrition. JIFSAN also encompasses HHS. announcing its intention to accept and other program areas such as cosmetics, ACTION: Notice. consider a single source application dietary supplements, and food labeling. from UMCP for a cooperative agreement In the Federal Register of May 22, SUMMARY: The Food and Drug to support JIFSAN. FDA’s authority to 1997 (62 FR 28049), FDA published a Administration (FDA) is announcing its enter into grants and cooperative request for a single source application intention to accept and consider a single agreements is set out in section 301 of for a cooperative agreement to support source application for the award of a the Public Health Service Act (42 U.S.C. JIFSAN. The application was reviewed cooperative agreement in fiscal year 241). FDA’s research program is and approved by an ad hoc panel of (FY) 2002 to the University of Maryland, described in the Catalog of Federal experts. The panel’s approval College Park (UMCP) to support the Domestic Assistance No. 93.103. Before recommendation was then approved by Joint Institute for Food Safety and entering into cooperative agreements, the National Advisory Environmental Applied Nutrition (JIFSAN), which is FDA carefully considers the benefits Health Sciences Council in September located on the University of Maryland such agreements will provide to the 1997. FDA awarded the cooperative campus in College Park, MD. An public. This application is not subject to agreement to UMCP on September 30, estimated amount of support in FY 2002 review under Executive Order 12372, 1997. will be up to $3 million per year (direct Intergovernmental Review of Federal In the Federal Register of July 26, and indirect costs), with an additional 4 Programs (45 CFR part 100). 1999 (64 FR 40380), FDA published a
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notice of its intention to B. Project Emphasis The American people will benefit noncompetitively supplement the The purpose of this cooperative from this type of collaboration because cooperative agreement with UMCP. FDA agreement will be to continue to: it will ensure that FDA is positioned to awarded the noncompetitive 1. Develop a critical mass of scientific respond rapidly in crisis situations to supplement to the cooperative expertise to address ongoing and protect, promote, and enhance the agreement with UMCP on September 29, increasingly complex key public health health of the public. 1999. issues, to provide early warning of III. Mechanism of Support JIFSAN is a jointly administered, emerging problems, to provide support A. Award Instrument multidisciplinary research, education, during emergencies and crisis and outreach program. Under the situations, and to provide scientific Support of this program, if awarded, cooperative agreement, UMCP has expertise in close proximity to FDA’s will be in the form of a cooperative established and staffed the JIFSAN at administrative office to expedite agreement. In FY 2002, FDA anticipates the UMCP campus. UMCP has regulatory policy and decisions. (All providing up to $3 million (direct and established core facilities that enable official regulatory activities, however, indirect costs) for this award. It is FDA and the University to share will be performed by FDA employees anticipated that funding will remain at resources, such as major laboratory only); this level in the subsequent instrumentation, and has initiated a 2. Provide a collaborative noncompetitive years unless mechanism to permit access to the environment and expertise for more appropriations change. The award will university’s library facilities for efficient use of current resources be subject to all policies and appropriate FDA employees. Programs devoted to risk analysis and requirements that govern the research initiated by JIFSAN have demonstrated biotechnology research and related grant programs of the PHS, including that the benefits from this partnership activities; the provisions of 42 CFR part 52, 45 are substantial. The unique 3. Develop more effective methods for CFR part 74, and the PHS grants policy administrative structure of JIFSAN communicating public health policy statement. and risk associated with both microbial allows it to most effectively use and chemical hazards to the general B. Length of Support resources to plan, organize, and run public by going beyond the study of the The length of support will be 1 year, multidisciplinary, multiinstitutional science to the study of how that science with the possibility of an additional 4 programs in research, education, and is heard and understood; years of noncompetitive support. outreach. The structure and policies of 4. Share resources to enhance the Continuation, beyond the first year, will a major land-grant university offer the research infrastructure and provide for be based upon satisfactory performance flexibility needed to enable JIFSAN to effective use of increasingly during the preceding year and the create and operate strategic alliances sophisticated scientific equipment with availability of Federal fiscal year involving multiple partners and high acquisition, installation, and appropriations. multiple funding sources. JIFSAN maintenance costs and the IV. Reasons for Single Source Selection provides a neutral environment in corresponding expertise of both parties; which experts from industry, consumer and UMCP is uniquely qualified to fulfill and trade groups, international 5. Establish mechanisms for exchange the objectives of the proposed organizations, government agencies, and of technical information and scientific cooperative agreement. UMCP is in academia pool their resources and ideas concepts between FDA, other Federal close proximity to the congressionally to provide the scientific bases for the and State agencies, industry, academia, directed location of FDA’s Center for development of sound public health consumer and trade groups, and Food Safety and Applied Nutrition’s policy. international organizations. (CFSAN’s) and Center for Veterinary Medicine’s (CVM’s) offices and II. Goals and Objectives C. Summary of Future Objectives laboratories in Prince Georges’s County, A. Concept The MOU between FDA and UMCP MD. UMCP has vast resources, which continues to provide the essential complement and greatly expand FDA’s FDA believes that the cooperative foundation for a vigorous, high quality research, scientific, and outreach research with UMCP through JIFSAN scientific research program to support resources. UMCP is the Washington will further research related to food sound regulatory policy and region’s most comprehensive research safety, will help to ensure the security performance. FDA faces an increasing institution, with numerous academic of the American food supply, and will number of critical and complex food programs relevant to FDA’s mission and provide opportunities to leverage safety issues. Having a nearby source of the resources to support CFSAN’s areas additional resources so that important complementary and specialized of interest, including: Microbiology, national and international problems in scientific expertise and facilities, chemistry, food science, animal health food, nutrition, animal health science enhances FDA’s ability to respond sciences, biotechnology, agriculture, activities, cosmetics, dietary rapidly to regulatory challenges and to public policy, risk assessment, supplements, biotechnology, and food expedite regulatory policy and computational science, economics, and labeling can be addressed in a timely decisions. FDA believes that JIFSAN is survey methodology. UMCP serves as manner. FDA also believes that a sound investment to ensure the public the primary center for graduate study cooperative research through JIFSAN health of American consumers. It and research and provides will promote the efficient use of the provides an opportunity for extensive undergraduate instruction across a complementary resources (e.g., major cooperation with University scientists, broad spectrum of academic disciplines. instrumentation, space, information, and it will significantly stimulate The University extends its vast and computer technologies) of both collaborative efforts between intellectual resources to the community parties. All research will be related to Government, academia, industry, and through innovative projects designed to FDA program requirements that ensure consumers to improve and ensure a safe serve individuals, governments, and the the safety of food. food supply. private sector throughout the State of
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Maryland, the nation, and the emergency response readiness VII. Review Procedures international community. In 1988 the credentials of the FDA Safety Staff who First, the grants management and General Assembly of Maryland are responsible for maintaining and program staff will review the designated UMCP as the flagship ensuring safety and regulatory application submitted in response to institution for the University of compliance at FDA facilities where this request for application (RFA) for Maryland System, which consists of 11 collaborative research is conducted. responsiveness. To be responsive, an campuses across the State and offers Collaboration between the public and application must: (1) Be received by the programs at some 200 sites worldwide. the private sectors has proven to be an specified due date, (2) be submitted in The University has developed core efficient means for both FDA and the accordance with sections VIII. facilities to provide effective use of University to remain current with ‘‘Submission Requirements’’ and IX.A. state-of-the-art scientific scientific and technical advances related ‘‘Submission Instructions’’ of this instrumentation with high acquisition, to food safety and applied nutrition. document, (3) not exceed the installation, and maintenance costs to These collaborative programs produce recommended funding amount stated in conduct research at the forefront of knowledge and expertise that can be the SUMMARY of this document, (4) science. An electron microscopy facility used by all segments of the food safety address the specific program goals and jointly supported by FDA and the and nutrition community, as well as by objectives as detailed in section II.B. University opened in 2000. CFSAN has public health organizations, other ‘‘Project Emphasis’’, and (5) bear the moved its nuclear magnetic resonance Federal agencies, and academic original signatures of both the principal (NMR) instrumentation and personnel institutions in the performance of their investigator and the University’s to the University’s NMR facility in the roles. The partnership between FDA and authorized official. Staff will consider Chemistry building. These UMCP provides both the technical and the application nonresponsive if it does instrumentation centers complement educational expertise for effective not contain the information set forth in CFSAN’s resources and expertise. The University has developed a food creation of technology transfer this section. If the application is found safety risk analysis clearinghouse with mechanisms that facilitate the to be nonresponsive, the staff will return oversight from the interagency risk movement of new technology and the application to the applicant without assessment consortium (RAC) provides fundamental food safety and further consideration. The staff will also established under the auspices of the nutrition information to the public and consider an application nonresponsive former administration’s Food Safety private sector. for any of the following reasons: (1) The applicant organization is ineligible, (2) Initiative. The intent of the V. Reporting Requirements clearinghouse is to provide a centralized it is received after the specified receipt information source in areas of risk Program progress reports and date, (3) it is incomplete, (4) it is analysis related to food safety with financial status reports will be required illegible, (5) it is not responsive to the initial emphasis on microbial pathogens annually, based on date of award. These RFA, or (6) the material presented is and their toxins. The unique feature of reports will be due within 90 days after insufficient to permit an adequate this clearinghouse model lies in the the end of the budget period. A final review. examinations and documentation of program progress report and financial Next, if the application is responsive, state-of-the-art methods, data sources, status report will be due 90 days after it will undergo a dual peer review. A and current results of on-going risk expiration of the project period of the responsive application will be reviewed assessments so that a much more cooperative agreement. first for scientific and technical merit by complete and up-to-date picture of risk an ad hoc panel of experts in areas VI. Delineation of Substantive associated with food safety, nutrition, assessment is assembled. Involvement Acknowledging the importance of an animal health sciences, biotechnology, interdisciplinary approach to Substantive involvement by the and risk analysis. The application will knowledge, the University maintains awarding agency is inherent in the then be presented to the National organized research units outside the cooperative agreement award. Advisory Environmental Health usual department structures (i.e., Accordingly, FDA will have substantial Sciences Council for their concurrence Department of Chemistry and involvement in the program activities of with the ad hoc panel’s Biochemistry and Department of the projects funded by the cooperative recommendation. Molecular, Cell and Microbial Biology, agreement. Substantive involvement VIII. Submission Requirements etc.). Through the collaborative projects, includes, but is not limited to, the The original and two copies of the FDA has access to additional University following: resources that include: (1) The Center completed Grant Application Form PHS 1. FDA will have prior approval of the for Research in Public Communication, 398 (rev. 4/98 or Rev. 5/01) with copies appointment of all key administrative where cooperative projects related to of the appendices for each of the copies, and scientific personnel proposed by risk communication studies could be must be delivered to Peggy Jones (see the grantee. developed; (2) the Survey Research ADDRESSES). No supplemental or Center and the Institute for Philosophy 2. FDA will be directly involved in addendum material will be accepted and Public Policy, which will promote the guidance and development of the after the receipt date. more efficient development and program and of the personnel IX. Method of Application dissemination of public policy; (3) the management structure for the program. University of Maryland’s Biotechnology 3. FDA scientists will participate, A. Submission Instruction Institute, including its Center for with the grantee, in determining and An application from UMCP will be Agricultural Biotechnology, which will carrying out the methodological accepted during normal business hours, facilitate the development of a approaches to be used. Collaboration 8 a.m. to 4:30 p.m., Monday through biotechnology program focused on food will also include data analysis, Friday, on or before the established safety and nutrition; and (4) the interpretation of findings, and, where receipt date. The application will be Maryland Fire and Rescue Institute, appropriate, coauthorship of considered received on time if sent or which will facilitate the maintenance of publications. mailed on or before the receipt date as
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evidenced by a legible U.S. Postal instructions have been submitted by guidance for industry entitled ‘‘Revising Service dated postmark or a legible PHS to the Office of Management and ANDA Labeling Following Revision of dated receipt from a commercial carrier, Budget (OMB) and were approved and the RLD Labeling’’ to the Division of unless it arrives too late for orderly assigned OMB control number 0925– Drug Information (HFD–240), Center for processing. Private metered postmarks 001. Drug Evaluation and Research, Food shall not be acceptable as proof of Dated: June 27, 2002. and Drug Administration, 5600 Fishers timely mailing. An application not Margaret M. Dotzel, Lane, Rockville, MD 20857. See the received on time will not be considered SUPPLEMENTARY INFORMATION section for Associate Commissioner for Policy. for review and will be returned to the electronic access to agency guidance [FR Doc. 02–16817 Filed 7–3–02; 8:45 am] applicant. (The applicant should note documents. that the U.S. Postal Service does not BILLING CODE 4160–01–S uniformly provide dated postmarks. FOR FURTHER INFORMATION CONTACT: Rita Before relying on this method, Hassall, Center for Drug Evaluation and applicants should check with their local DEPARTMENT OF HEALTH AND Research (HFD–600), Food and Drug post office.) Do not send the application HUMAN SERVICES Administration, 5600 Fishers Lane, to the CSR, NIH. The application must Food and Drug Administration Rockville, MD 20857, 301–827–5845. be submitted via mail or hand delivered SUPPLEMENTARY INFORMATION: FDA is as stated above. FDA is unable to [Docket No. 02N–0253] receive the application electronically. announcing the withdrawal of 53 The applicant is advised that FDA does Withdrawal of 53 Guidances on individual product labeling guidances. not adhere to the page limitations or the Individual Product Labeling These labeling guidances, currently available on the Center for Drug type size and line spacing requirements AGENCY: Food and Drug Administration, imposed by NIH for its applications. Evaluation and Research (CDER) HHS. guidance list, were intended to provide B. Format for Application ACTION: Notice; withdrawal. sponsors of abbreviated new drug applications (ANDAs) with product Submission of the application must be SUMMARY: The Food and Drug on Grant Application Form PHS 398 Administration (FDA) is announcing the specific templates for package insert (Rev. 4/98 or Rev. 5/01). All ‘‘General withdrawal of 53 individual product labeling that would be accepted by the Instructions’’ and ‘‘Specific labeling guidances. The guidances are Office of Generic Drugs (OGD). Package Instructions’’ in the application kit must being withdrawn because they are insert labeling for innovator products be followed with the exception of the outdated and of little use to the generic changes frequently, and it is difficult to receipt dates and the mailing label drug industry. The agency has keep the guidances updated. The address. developed other guidance and resources guidances are being withdrawn because The face page of the application must to assist industry in obtaining up-to-date they are outdated and of limited use to reflect the request for application labeling for reference listed drugs. the generic drug industry. number, RFA-FDA CFSAN–02–3. The withdrawal of these 53 product Data and information included in the DATES: General comments on agency specific labeling guidances is part of a application, if identified by the guidance documents are welcome at any long-term effort in OGD to review applicant as trade secret or confidential time. guidance documents on the commercial information will be given ADDRESSES: Submit written comments treatment as such to the extent to the Dockets Management Branch development of generic drug products permitted by the Freedom of (HFA–305), Food and Drug with the goal of identifying documents Information Act (5 U.S.C. 552(b)(4)) and Administration, 5630 Fishers Lane, rm. that need to be revised, reformatted, or FDA’s implementing regulations (21 1061, Rockville, MD 20852. Submit withdrawn because they are no longer CFR 20.61). electronic comments to http:// current (64 FR 36886, July 8, 1999). Information collection requirements www.fda.gov/dockets/ecomments. The following guidances are requested on Form PHS 398 and the Submit written requests for the withdrawn:
Guidance Date of Issuance
Acetaminophen, Aspirin and Codeine Phosphate Tablets and Acetaminophen, Aspirin and Codeine Phosphate Revised December 1993 Capsules Acetaminophen and Codeine Phosphate Oral Solution and Oral Suspension Revised December 1993 Alprazolam Tablets Revised August 1996 Amiloride Hydrochloride and Hydrochlorothiazide Tablets USP September 1997 Amlodipine Besylate Tablets September 1997 Astemizole Tablets September 1997 Atenolol Tablets August 1997 Butalbital, Acetaminophen and Caffeine Tablets USP or Butalbital, Acetaminophen and Caffeine Capsules USP September 1997 Butalbital, Acetaminophen, Caffeine and Hydrocodone Bitartrate Tablets September 1997 Butorphanol Tartrate Injection USP Revised October 1992 Captopril and Hydrochlorothiazide Tablets USP April 1995 Captopril Tablets February 1995 Carbidopa and Levodopa Tablets USP Revised February 1992 Cimetidine Hydrochloride Injection September 1995 Cimetidine Tablets USP Revised September 1995 Cisapride Oral Suspension September 1997 Cisapride Tablets September 1997 Clindamycin Phosphate Injection, USP Revised September 1998 Diclofenac Sodium Delayed-Release Tablets Revised February 1995 Diltiazem Hydrochloride Extended-Release Capsules Revised September 1995
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Guidance Date of Issuance
Diphenoxylate Hydrochloride and Atropine Sulfate Oral Solution USP April 1995 Diphenoxylate Hydrochloride and Atropine Sulfate Tablets USP April 1995 Fludeoxyglucose F18 Injection January 1997 Flurbiprofen Tablets USP Revised January 1994 Fluvoxamine Maleate Tablets September 1997 Gentamicin Sulfate Ophthalmic Solution USP and Gentamicin Sulfate Ophthalmic Ointment USP Revised April 1992 Heparin Sodium Injection USP Revised March 1991 Hydrocodone Bitartrate and Acetaminophen Tablets USP Revised April 1994 Indomethacin Capsules USP Revised September 1995 Itraconazole Capsules September 1998 Leucovorin Calcium for Injection July 1996 Leucovorin Calcium Tablets USP July 1996 Medroxyprogesterone Acetate Tablets USP Revised September 1998 Metaproternol Sulfate Inhalation Solution USP Revised May 1992 Metaproterenol Sulfate Syrup USP Revised May 1992 Metaproterenol Sulfate Tablets USP Revised May 1992 Metoclopramide Tablets USP and Metoclopramide Oral Solution USP Revised February 1995 Naproxen Sodium Tablets USP September 1997 Naproxen Tablets USP September 1997 Paclitaxel Injection September 1997 Quinidine Sulfate Tablets, USP October 1995 Ranitidine Tablets USP Revised November 1993 Risperidone Oral Solution September 1997 Risperidone Tablets September 1997 Sulfacetamide Sodium Ophthalmic Solution USP and Sulfacetamide Sodium Ophthalmic Ointment USP Revised August 1993 Sulfacetamide Sodium and Prednisolone Acetate Revised January 1995 Sulfamethoxazole and Trimethoprim Tablets USP and Sulfamethoxazole and Trimethoprim Oral Suspension Revised August 1993 USP Theophylline Revised February 1995 Theophylline Intravenous Dosage Forms September 1995 Tobramycin Sulfate Injection USP Revised May 1993 Venlafaxine Hydrochloride Tablets October 1997 Verapamil Hydrochloride Tablets October 1991 Zolpidem Tartrate Tablets September 1997
In May 2000, the agency issued the DEPARTMENT OF HEALTH AND DATES: Submit written or electronic guidance for industry entitled ‘‘Revising HUMAN SERVICES comments on agency guidances at any ANDA Labeling Following Revision of time. the RLD Labeling.’’ This guidance Food and Drug Administration ADDRESSES: Submit written requests for provides information on how to access [Docket No. 99D–1454] current package insert labeling on single copies of this guidance to the OGD’s Labeling Review Branch Web site Guidance for Industry on Nasal Spray Division of Drug Information (HFD– at http://www.fda.gov/cder/ogd/rld/ and Inhalation Solution, Suspension, 240), Center for Drug Evaluation and labeling_review_branch.htm. and Spray Drug Products—Chemistry, Research, Food and Drug Interested persons may submit written Manufacturing, and Controls Administration, 5600 Fishers Lane, or electronic comments to the Dockets Documentation; Availability Rockville, MD 20857. Send one self- Management Branch (HFA–305), Food addressed adhesive label to assist that and Drug Administration, 5630 Fishers AGENCY: Food and Drug Administration, HHS. office in processing your requests. Lane, rm. 1061, Rockville, MD 20852. Submit written comments on the ACTION: Notice. Two copies of any comments are to be guidance to the Dockets Management submitted, except that individuals may SUMMARY: The Food and Drug Branch (HFA–305), Food and Drug submit one copy. Comments are to be Administration (FDA) is announcing the Administration, 5630 Fishers Lane, rm. identified with the docket number availability of a guidance for industry found in brackets in the heading of this 1061, Rockville, MD 20852. Submit entitled ‘‘Nasal Spray and Inhalation document. Received comments are electronic comments to http:// Solution, Suspension, and Spray Drug available for public examination in the www.fda.gov/dockets/ecomments. See Products—Chemistry, Manufacturing, Dockets Management Branch between 9 the SUPPLEMENTARY INFORMATION section and Controls Documentation.’’ This a.m. and 4 p.m., Monday through for electronic access to the guidance document provides guidance for Friday. document. Persons with access to the Internet industry on the chemistry, FOR FURTHER INFORMATION CONTACT: may obtain CDER guidance documents manufacturing, and controls at http://www.fda.gov/cder/guidance/ documentation that should be submitted Guirag Poochikian, Center for Drug index.htm. in new drug applications (NDAs) and Evaluation and Research (HFD–570), abbreviated new drug applications Food and Drug Administration, 5600 Dated: June 24, 2002. (ANDAs) for nasal spray and inhalation Fishers Lane, Rockville, MD 20857, Margaret M. Dotzel, solution, suspension, and spray drug 301–827–1050. Associate Commissioner for Policy. products intended for local and/or [FR Doc. 02–16796 Filed 7–3–02; 8:45 am] systemic effect. The guidance also SUPPLEMENTARY INFORMATION: BILLING CODE 4160–01–S provides recommendations on labeling.
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I. Background document. The guidance and received percutaneous image-guided needle FDA is announcing the availability of comments are available for public biopsy using an RF ablation probe. The a guidance for industry entitled ‘‘Nasal examination in the Dockets invention is designed to limit the risks Spray and Inhalation Solution, Management Branch between 9 a.m. and of bleeding and needle track seeding Suspension, and Spray Drug Products— 4 p.m., Monday through Friday. that are inherent risks of any needle biopsy. The device uses a coaxial biopsy Chemistry, Manufacturing, and Controls III. Electronic Access Documentation.’’ This guidance arrangement with the outer needle Persons with access to the Internet provides recommendations on the coated with a non-conducting polymer may obtain the document at either http:/ information that should be submitted in that insulates the needle shaft and the /www.fda.gov/cder/guidance/index.htm NDAs and ANDAs for these products, tissue immediately in contact with the or http://www.fda.gov/ohrms/dockets/ including information on drug product shaft. As the needle is pulled back from default.htm. components, manufacturing process, the organ or tumor target, RF energy is and the associated controls. However, it Dated: June 24, 2002. applied to an exposed end portion of the does not address the manufacture of Margaret M. Dotzel, probe, causing cauterization and drug substances. The guidance gives Associate Commissioner for Policy. coagulation of the tissue immediately adjacent to the needle track. A variation recommendations on information that [FR Doc. 02–16797 Filed 7–3–02; 8:45 am] on the device could be used to limit should be provided to ensure BILLING CODE 4160–01–S continuing quality and performance bleeding after catheter placement into characteristics for these drug products. organs, such as for nephrostomy, biliary This guidance also provides information DEPARTMENT OF HEALTH AND drainage, or transhepatic islet cell on labeling. HUMAN SERVICES transplantation. In the Federal Register of June 2, 1999 Method and Apparatus for (64 FR 29657), FDA announced the National Institutes of Health Countercurrent Chromatography availability of a draft version of this guidance. The June 1999 guidance gave Government-Owned Inventions; Yoichiro Ito (NHLBI) Availability for Licensing interested persons an opportunity to DHHS Reference No. E–148–01/0 filed submit comments through August 31, AGENCY: National Institutes of Health, Apr 05, 2002 1999. All comments received during the Public Health Service, DHHS. Licensing Contact: Dale Berkley; 301/ comment period have been carefully ACTION: Notice. reviewed and incorporated in this 496–7735 ext. 223; e-mail: revised guidance where appropriate. As SUMMARY: The inventions listed below [email protected]. a result of the public comment, the are owned by agencies of the U.S. This invention is an improved guidance is clearer and more concise Government and are available for column design for High Speed Counter than the draft version. FDA is licensing in the U.S. in accordance with Current Chromatography (HSCCC) that participating in research relating to 35 U.S.C. 207 to achieve expeditious increases partition efficiency by using these types of drug products through the commercialization of results of novel tubing geometries. A standard Product Quality Research Institute federally-funded research and HSCCC centrifuge uses a multilayer coil (Internet address at http:// development. Foreign patent as a separation column to produce a www.pqri.org) and will evaluate applications are filed on selected high efficiency separation with good whether to update the guidance as inventions to extend market coverage retention of the stationary phase in information from this research becomes for companies and may also be available many solvent systems. However, the available. for licensing. standard HSCCC, when used for highly This guidance is being issued ADDRESSES: Licensing information and viscous, low interfacial solvent systems, consistent with FDA’s good guidance copies of the U.S. patent applications is unsuccessful at retaining a suitable practices regulation (21 CFR 10.115). listed below may be obtained by writing amount of the stationary phase. This The guidance represents the agency’s to the indicated licensing contact at the invention greatly improves efficiency by current thinking on chemistry, Office of Technology Transfer, National modifying the column from a coil to manufacturing, and controls Institutes of Health, 6011 Executive spiral geometry. Thereby, this invention documentation for nasal spray and Boulevard, Suite 325, Rockville, creates a centrifugal force gradient, inhalation solution, suspension, and Maryland 20852–3804; telephone: 301/ which allows for distribution of the spray drug products. It does not create 496–7057; fax: 301/402–0220. A signed heaver phase in the peripheral and the or confer any rights for or on any person Confidential Disclosure Agreement will lighter phase in the proximal part of the and does not operate to bind FDA or the be required to receive copies of the column. The effect of the gradient public. An alternative approach may be patent applications. becomes more pronounced as the pitch used if such approach satisfies the of the spiral is increased. Radio Frequency Cauterization Biopsy requirements of the applicable statutes Method for Segmenting Medical Images and regulations. Bradford J. Wood and Christan and Detecting Surface Anomalies in II. Comments Pavlovich (CC) Anatomical Structures Interested persons may, at any time, DHHS Reference Nos. E–207–01/0 filed Ronald M. Summers et al. (CC) submit written or electronic comments Oct 17, 2001 and E–207–01/1 filed Apr U.S. Patent 6,246,784 issued Jun 12, on the guidance to the Dockets 08, 2002 2001; U.S. Patent 6,345,112 issued Feb Management Branch (see ADDRESSES). Licensing Contact: Dale Berkley; 301/ 05 2002; Serial No. 10/072,667 filed Feb Two copies of any comments are to be 496–7735 ext. 223; e-mail: 05, 2002 submitted, except that individuals may [email protected]. submit one copy. Comments are to be The invention is a method and Licensing Contact: Dale Berkley; 301/ identified with the docket number apparatus for using radio frequency (RF) 496–7735 ext. 223; e-mail: found in brackets in the heading of this energy to cauterize the needle track after [email protected].
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The invention is a method for DEPARTMENT OF HEALTH AND provisions set forth in sections automatically detecting surface HUMAN SERVICES 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., anomalies in anatomical structures in as amended. The contract proposals and virtual colonoscopy and other imaging National Institutes of Health the discussions could disclose confidential trade secrets or commercial studies. A region growing method National Center on Minority Health and segments three-dimensional image data property such as patentable material, Health Disparities; Notice of Closed and personal information concerning of an anatomical structure using a Meeting tortuous path length limit to constrain individuals associated with the contract voxel growth. The path length limit Pursuant to section 10(d) of the proposals, the disclosure of which constrains the number of successive Federal Advisory Committee Act, as would constitute a clearly unwarranted generations of voxel growth from a seed amended (5 U.S.C. Appendix 2), notice invasion of personal privacy. point to prevent leakage of voxels is hereby given of the following Name of Committee: National Institute on outside the boundary of the anatomical meeting. Alcohol Abuse and Alcoholism Special The meeting will be closed to the structures. Once segmented, a process Emphasis Panel Fellowship Application. public in accordance with the Date: July 16, 2002. for detecting surface anomalies performs provisions set forth in sections Time: 8 am to 6 pm. a curvature analysis on a computer 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Agenda: To review and evaluate grant model of the surface of the structure. as amended. The grant applications and applications. This process detects surface anomalies Place: Bethesda Marriott, 5151 Pooks Hill the discussion could disclose Rd, Bethesda, MD 20814. automatically by traversing the vertices confidential trade secrets or commercial in the surface model, computing partial Contact Person: Kathy Ray, Lead Grants property such as patentable material, Technical Assistant, Extramural Project derivatives of the surface at the vertices, and personal information concerning Review Branch, National Institute of Alcohol and computing curvature characteristics individuals associated with the grant Abuse and Alcoholism, National Institutes of from the partial derivatives. To identify applications, the disclosure of which Health, 6000 Executive Blvd., Suite 409, possible anomalies, the process would constitute a clearly unwarranted Bethesda, MD 20892–7003, 301–443–2932, compares the curvature characteristics invasion of personal privacy. [email protected]. Name of Committee: National Institute on with predetermined curvature Name of Committee: National Center on characteristics of anomalies and Alcohol Abuse and Alcoholism Special Minority Health and Health Disparities Emphasis Panel RFA AA02–007—Mutant classifies the vertices. The process Special Emphasis Panel, Excellence in Mouse Phenotyping: Ethanol-related further refines potential anomalies by Partnerships for Community Outreach, Behavior and Nervous System Function. segmenting neighboring vertices that are Research on Health Disparities and Training. Date: July 17, 2002. Date: July 15–17, 2002. Time: 1:30 pm to 3:30 pm. classified as being part of an anomaly Time: 6 p.m. to 4 p.m. Agenda: To review and evaluate grant using curvature characteristics. Finally, Agenda: To review and evaluate grant applications. the process colorizes the anomalies, and applications. Place: Willco Building, Suite 409, 6000 Place: Bethesda Marriott Suites, 6711 computes a camera position and Executive Boulevard, Rockville, MD 20892, Democracy Boulevard, Bethesda, MD 20817. direction for each one to assist the user (Telephone Conference Call). Contact Person: Teresa Chapa, PhD, Chief, in viewing 2D rendering of the Contact Person: Karen P. Peterson, PhD, Division of Extramural Activities, National Scientific Review Administrator, National computer model. Center on Minority Health hand Health Institutes of Health, National Institute of Disparities, National Institutes of Health, The method may be useful for Alcohol Abuse and Alcoholism, 6000 automated detection of inflammatory, Bethesda, MD 20852, 301/402–1366, [email protected]. Executive Blvd., Suite 409, Bethesda, MD pre-cancerous and cancerous lesions of This notice is being published less than 15 20892–7003, (301) 451–3883, internal body cavities, such as the days prior to the meeting due to the timing [email protected]. colon, airways, blood vessels and limitations imposed by the review and Name of Committee: National Institute on bladder. An example of a potential funding cycle. Alcohol Abuse and Alcoholism Special commercial application is as a Emphasis Panel RFA AA02–006 Non-Human Dated: June 26, 2002. Primate Models of Neurobiological component of software for clinical Anna Snouffer, Mechanisms of Adolescent Alcohol Abuse. interpretation of virtual colonoscopy Deputy Director, Office of Federal Advisory Date: July 18, 2002. (CT colonography) examinations. Committee Policy. Time: 8 am to 5 pm. This research is also described in [FR Doc. 02–16793 Filed 7–3–02; 8:45 am] Agenda: To review and evaluate grant applications. BILLING CODE 4140–01–M Summers et al., ‘‘Automated Polyp Place: Doubletree Hotel, 1750 Rockville Detection at CT Colonography: Pike, Rockville, MD 20852. Feasibility Assessment in a Human Contact Person: Sandra Camman, Grants Population,’’ Radiology 219:51–59 DEPARTMENT OF HEALTH AND Technical Assistant, Extramural Project HUMAN SERVICES (2001) and in Summers et al., Review Branch, National Institute on Alcohol ‘‘Complementary Role of Computer- Abuse and Alcoholism, National Institutes of National Institutes of Health Health, Suite 409, 6000 Executive Boulevard, Aided Detection of Colonic Polyps with Bethesda, MD 20892, 301–443–9419, CT Colonography,’’ Radiology, in press. National Institute on Alcohol Abuse [email protected]. Dated: June 24, 2002. and Alcoholism; Notice of Closed Name of Committee: National Institute on Meetings Jack Spiegel, Alcohol Abuse and Alcoholism Special Pursuant to section 10(d) of the Emphasis Panel SBIR Contract Topic 023. Director, Division of Technology Development Date: July 18, 2002. and Transfer, Office of Technology Transfer, Federal Advisory Committee Act, as Time: 12:30 pm to 2 pm. National Institutes of Health. amended (5 U.S.C. Appendix 2), notice Agenda: To review and evaluate contract [FR Doc. 02–16795 Filed 7–3–02; 8:45 am] is hereby given of the following proposals. BILLING CODE 4140–01–P meetings. Place: Willco Building, Suite 409, 6000 The meetings will be closed to the Executive Boulevard, Rockville, MD 20892, public in accordance with the (Telephone Conference Call).
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Contact Person: Karen P. Peterson, PhD, (Catalogue of Federal Domestic Assistance Dated: June 26, 2002. Scientific Review Administrator, National Program Nos. 93.271, Alcohol Research Anna Snouffer, Institutes of Health, National Institute of Career Development Awards for Scientists Deputy Director, Office of Federal Advisory Alcohol Abuse and Alcoholism, 6000 and Clinicians; 93.272, Alcohol National Committee Policy. Executive Blvd., Suite 409, Bethesda, MD Research Service Awards for Research [FR Doc. 02–16794 Filed 7–3–02; 8:45 am] 20892–7003, (301) 451–3883, Training; 93.273, Alcohol Research Programs; [email protected]. 93.891, Alcohol Research Center Grants, BILLING CODE 4140–01–M Name of Committee: National Institute on National Institutes of Health, HHS) Alcohol Abuse and Alcoholism Special Dated: June 26, 2002. Emphasis Panel SBIR Contract Topic 017. DEPARTMENT OF HEALTH AND Date: July 23, 2002. Anna Snouffer, HUMAN SERVICES Time: 1:30 pm to 3 pm. Deputy Director, Office of Federal Advisory Agenda: To review and evaluate contract Committee Policy. Substance Abuse and Mental Health proposals. [FR Doc. 02–16792 Filed 7–3–02; 8:45 am] Services Administration Place: Willco Building, Suite 409, 6000 BILLING CODE 4140–01–M Executive Boulevard, Rockville, MD 20892, SAMHSA Last Receipt Date for (Telephone Conference Call). Program Announcement (PA) No. PA– Contact Person: Karen P. Peterson, PhD, 98–090—Conference Grants Scientific Review Administrator, National DEPARTMENT OF HEALTH AND Institutes of Health, National Institute of HUMAN SERVICES SUMMARY: This notice is to inform the Alcohol Abuse and Alcoholism, 6000 public that the last receipt date for National Institutes of Health Executive Blvd., Suite 409, Bethesda, MD applications under SAMHSA Program 20892–7003, (301) 451–3883, Announcement No. PA–98–090, [email protected]. National Institute of Mental Health; Notice of Closed Meeting SAMHSA Knowledge Dissemination Name of Committee: National Institute on Conference Grants (Short Title: Alcohol Abuse and Alcoholism Special SAMHSA Conference Grants) will be Emphasis Panel RFA AA02–011—Role of S- Pursuant to section 10(d) of the adenosyl-L-methionine (SAMe) in the Federal Advisory Committee Act, as September 10, 2002. A new program Treatment of Alcoholic Liver Disease. amended (5 U.S.C. Appendix 2), notice announcement for conference grants Date: July 25–26, 2002. is hereby given of the following will be published soon after that date. Time: 8 am to 5 pm. meeting. Conference Grants fund up to 75 Agenda: To review and evaluate grant percent of the total direct costs of applications. The meeting will be closed to the domestic conferences that are of Place: Doubletree Hotel, Rockville, MD public in accordance with the national significance to consumer and 20852. provisions set forth in sections provider services oriented constituency Contact Person: Kathy Ray, Lead Grants 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., groups for the purpose of advancing the Technical Assistant, Extramural Project as amended. The grant applications and mental health and substance abuse Review Branch, National Institute of Alcohol the discussions could disclose Abuse and Alcoholism, National Institutes of fields through knowledge synthesis and confidential trade secrets or commercial dissemination. Each of the three centers Health, 6000 Executive Blvd., Suite 409, property such as patentable material, Bethesda, MD 20892–7003, 301–443–2932, participate when funding is available. [email protected]. and personal information concerning Awards range from a minimum of individuals associated with the grant Name of Committee: National Institute on $25,000 to a maximum of $50,000 in Alcohol Abuse and Alcoholism Special applications, the disclosure of which total costs. Emphasis Panel RFA AA02–009— would constitute a clearly unwarranted Information about the program and Intergrative Neuroscience Initiative on invasion of personal privacy. the full text of the current PA–98–090 Alcoholism Name of Committee: National Institute of conference grant announcement can be Date: July 30–31, 2002. Mental Health Special Emphasis Panel, WHO obtained from: Time: 8 am to 5 pm. Collaborative Agreement Review. The CMHS Knowledge Exchange Place: Doubletree Hotel, 1750 Rockville Date: July 11, 2002. Pike, Rockville, MD 20852. Network (KEN) at: 1–800–789–2647, Time: 8:30 am to 5 pm. Monday through Friday, 8:30 a.m. to Contact Person: Kathy Ray, Lead Grants Agenda: To review and evaluate grant 5:00 p.m., EST, Write: P.O. Box 42490, Technical Assistant, Extramural Project applications. Review Branch, National Institute of Alcohol Place: Governor’s House, 1615 Rhode Washington, DC 20015 Abuse and Alcoholism, National Institutes of Island Avenue, NW, Washington, DC 20036. The National Clearinghouse for Alcohol Health, 6000 Executive Blvd., Suite 409, Contact Person: Martha Ann Carey, PhD, and Drug Information at: 1–800–729– Bethesda, MD 20892–7003, 301–443–2932, RN, Scientific Review Administrator, 6686, Monday through Friday, 8:30 [email protected]. Division of Extramural Activities, National a.m. to 5:00 p.m., EST, Write: P.O. Name of Committee: National Institute on Institute of Mental Health, NIH, Box 2345, Rockville, MD 20847–2345 Alcohol Abuse and Alcoholism Special Neuroscience Center, 6001 Executive Blvd., Or from the SAMHSA web site at Emphasis Panel RFA AA02–010 Stem Cells Room 6151, MSC 9608, Bethesda, MD 20892– http://www.SAMHSA.gov. in Alcohol Research. 9608, 301–443–1601, [email protected]. Date: August 13, 2002. For questions concerning program This notice is being published less than 15 issues, contact: Time: 8 am to 6 pm. days prior to the meeting due to the timing Agenda: To review and evaluate grant limitations imposed by the review and For mental health topics: David applications. funding cycle. Morrissette, DSW, Center for Mental Place: Bethesda Marriott, 5151 Pooks Hill Health Services/SAMHSA, 5600 Rd, Bethesda, MD 20814. (Catalogue of Federal Domestic Assistance Fishers Lane, Room 11C–22, Program Nos. 93.242, Mental Health Research Contact Person: Karen P. Peterson, PhD, Rockville, MD 20857, (301) 443–3653, Scientific Review Administrator, National Grants; 93.281, Scientist Development Institutes of Health, National Institute of Award, Scientist Development Award for e-mail: [email protected]. Alcohol Abuse and Alcoholism, 6000 Clinicians, and Research Scientist Award; For substance abuse treatment topics: Executive Blvd., Suite 409, Bethesda, MD 93.282, Mental Health National Research Kim Plavsic, Center for Substance 20892–7003, (301) 451–3883, Service Awards for Research Training, Abuse Treatment/SAMHSA, 5515 [email protected]. National Institutes of Health, HHS) Security Lane, Suite 840, Rockville,
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MD 20852, (301) 443–7916, e-mail: DEPARTMENT OF HOUSING AND information technology, e.g., permitting [email protected]. URBAN DEVELOPMENT electronic submission of responses. For substance abuse prevention topics: This Notice also lists the following Boris R. Aponte, Ph.D., CHES, Center [Docket No. FR–4739–N–26] information: Title of Proposal: Request for Credit for Substance Abuse Prevention/ Notice of Proposed Information Approval of Substitute Mortgagor. SAMHSA, 5515 Security Lane, Suite Collection: Comment Request; OMB Control Number, if applicable: 800, Rockville, MD 20852, (301) 443– Request for Credit Approval of 2502–0036. 2290, e-mail: [email protected]. Substitute Mortgagor Description of the need for For more information on PA–98–090 go to information and proposed use: This AGENCY: Office of the Assistant the online announcement. information collection is used by HUD Secretary for Housing—Federal Housing Dated: June 26, 2002. to approve the credit of a substitute Commissioner, HUD. Patricia Bransford, mortgagor who desires to assume an ACTION: Notice. Acting Executive Officer, Substance Abuse FHA-insured mortgage. The information is also needed to document the financial and Mental Health Services Administration. SUMMARY: The proposed information [FR Doc. 02–16818 Filed 7–3–02; 8:45 am] collection requirement described below stability of the mortgagor. Agency form numbers, if applicable: BILLING CODE 4162–20–P will be submitted to the Office of HUD–92210. Management and Budget (OMB) for Estimation of the total numbers of review, as required by the Paperwork hours needed to prepare the information DEPARTMENT OF HEALTH AND Reduction Act. The Department is collection including number of HUMAN SERVICES soliciting public comments on the respondents, frequency of response, and subject proposal. hours of response: The estimated total Substance Abuse and Mental Health DATES: Comments Due Date: September Services Administration number of hours needed to prepare the 3, 2002. information collection is 10,000, the Correction of Application Deadline for ADDRESSES: Interested persons are number of respondents is 1,000 the Grant Program, National Technical invited to submit comments regarding generating approximately 10,000 annual this proposal. Comments should refer to Assistance Center for the Mental responses, the frequency of response is the proposal by name and/or OMB Health Services Needs of Older Adults on occasion, and the number of hours Control Number and should be sent to: (SM 02–016) per response is one. Wayne Eddins, Reports Management Status of the proposed information Officer, Department of Housing and AGENCY: Substance Abuse and Mental collection: Reinstatement, without Urban Development, 451 7th Street, SW, Health Services Administration change, of a previously approved L’Enfant Plaza Building, Room 8003, collection for which approval has (SAMHSA), DHHS. Washington, DC 20410. expired. ACTION: Correction of application FOR FURTHER INFORMATION CONTACT: Authority: The Paperwork Reduction Act Deadline for the grant program, National Joseph McCloskey, Director, Office of of 1995, 44 U.S.C., Chapter 35, as amended. Technical Assistance Center for the Single Family Asset Management, Dated: June 27, 2002. Mental Health Services Needs of Older Department of Housing and Urban Sean G. Cassidy, Adults (SM 02–016). Development, 451 7th Street, Washington, DC 20410, telephone (202) General Deputy Assistant Secretary for 708–1672 (this is not a toll free number) Housing—Deputy Federal Housing SUMMARY: This notice is to inform the Commissioner. public that the application deadline for copies of the proposed forms and other available information. [FR Doc. 02–16761 Filed 7–3–02; 8:45 am] published on June 27, 2002, for the BILLING CODE 4210–27–M grant program, National Technical SUPPLEMENTARY INFORMATION: The Assistance Center for the Mental Health Department is submitting the proposed Services Needs of Older Adults (SM 02– information collection to OMB for DEPARTMENT OF HOUSING AND 016), is incorrect. The correct review; as required by the Paperwork URBAN DEVELOPMENT application deadline is August 8, 2002. Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). [Docket No. FR–4739–N–25] PROGRAM CONTACT: For questions about This Notice is soliciting comments Notice of Proposed Information the due date for this program or other from members of the public and affected Collection: Comment Request; Flexible program issues relating to this program, agencies concerning the proposed Subsidy, Capital Improvement Loan contact: Betsy McDonel Herr, Ph.D., collection of information to: (1) Evaluate Program Social Science Analyst, Center for whether the proposed collection is Mental Health Services, SAMHSA, necessary for the proper performance of AGENCY: Office of the Assistant Room 11C–22, 5600 Fishers Lane, the functions of the agency, including Secretary for Housing—Federal Housing Rockville, MD 20857, (301) 594–2197, whether the information will have Commission, HUD. (301) 443–0541 (Fax), e-mail: practical utility; (2) evaluate the ACTION: Notice. [email protected]. accuracy of the agency’s estimate of the burden of the proposed collection of SUMMARY: The proposed information Dated: June 28, 2002. information; (3) enhance the quality, collection requirement described below Chuck Novak, utility, and clarity of the information to will be submitted to the Office of Acting Executive Officer, Substance Abuse be collected; and (4) minimize the Management and Budget (OMB) for and Mental Health Services Administration. burden of the collection of information review, as required by the Paperwork [FR Doc. 02–16789 Filed 7–3–02; 8:45 am] on those who are to respond, including Reduction Act. The Department is BILLING CODE 4162–20–P the use of appropriate automated soliciting public comments on the collection techniques or other forms of subject proposal.
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DATES: Comments Due Date: September financial, and management FOR FURTHER INFORMATION CONTACT: 3, 2002. improvement goals. Michael McCullough, Director, Office of ADDRESSES: Interested persons are Agency form numbers, if applicable: Multifamily Development, Department invited to submit comments regarding HUD–9823A, 9823B, 9824B, 9835, of Housing and Urban Development, this proposal. Comments should refer to 9835A, and 9835B. 451 7th Street SW., Washington, DC the proposal by name and/or OMB Estimation of the total numbers of 20410, telephone (202) 708–1142 (this is Control Number and should be sent to: hours needed to prepare the information not a toll free number) for copies of the Wayne Eddins, Reports Management collection including number of proposed forms and other available Officer, Department of Housing and respondents, frequency of response, and information. Urban Development, 451 7th Street, hours of response: The estimated total SUPPLEMENTARY INFORMATION: The SW., L’Enfant Plaza Building, Room number of hours needed to prepare the Department is submitting the proposed 8001, Washington, DC 20410. information collection is 760, the information collection to OMB for number of respondents is 20 generating FOR FURTHER INFORMATION CONTACT: review, as required by the Paperwork approximately 320 annual responses, Reduction Act of 1995 (44 U.S.C. Willie Spearmon, Director, Office of the frequency of response is monthly, Housing Assistance and Grant Chapter 35, as amended). quarterly, and annually, and the number This Notice is soliciting comments Administration, Department of Housing of hours per response varies from one to and Urban Development, 451 7th Street from members of the public and affected 20 hours. agencies concerning the proposed SW., Washington, DC 20410, telephone Status of the proposed information (202) 708–3000 (this is not a toll free collection of information: (1) Evaluate collection: Reinstatement, with change, whether the proposed collection is number) for copies of the proposed of a previously approved collection for forms and other available information. necessary for the proper performance of which approval has expired. the functions of the agency, including SUPPLEMENTARY INFORMATION: The Authority: The Paperwork Reduction Act whether the information will have Department is submitting the proposed of 1995, 44 U.S.C., Chapter 35, as amended. practical utility; (2) evaluate the information collection to OMB for accuracy of the agency’s estimate of the review, as required by the Paperwork Dated: June 27, 2002. burden of the proposed collection of Reduction Act of 1995 (44 U.S.C. Sean G. Cassidy, information; (3) enhance the quality, Chapter 35, as amended). General Deputy Assistant Secretary for utility, and clarity of the information to This Notice is soliciting comments Housing—Deputy Federal Housing Commission. be collected; and (4) minimize the from members of the public and affected burden of the collection of information agencies concerning the proposed [FR Doc. 02–16762 Filed 7–3–02; 8:45 am] BILLING CODE 4210–27–M on those who are to respond; including collection of information to: (1) Evaluate the use of appropriate automated whether the proposed collection is collection techniques or other forms of necessary for the proper performance of information technology e.g., permitting the functions of the agency, including DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT electronic submission of responses. whether the information will have This Notice also lists the following practical utility; (2) evaluate the [Docket No. FR–4739–N–24] information: accuracy of the agency’s estimate of the Title of Proposal: Contractor’s burden of the proposed collection of Notice of Proposed Information Requisition Project Mortgages. information; (3) enhance the quality, Collection: Comment Request; OMB Control Number, if applicable: utility, and clarity of the information to Contractor’s Requisition Project 2502–0028. be collected; and (4) minimize the Mortgages Description of the need for the burden of the collection of information information and proposed use: This on those who are to respond; including AGENCY: Office of the Assistant information is collected on form HUD– the use of appropriate automated Secretary for Housing—Federal Housing 92448 from contractors and is used to collection techniques or other forms of Commissioner, HUD. obtain program benefits, consisting of information technology, e.g., permitting ACTION: Notice. distribution of insured mortgage electronic submission of responses. proceeds when construction costs are SUMMARY: This Notice also lists the following The proposed information involved. The information regarding information: collection requirement described below completed work items is used by the Title of Proposal: Flexible Subsidy, will be submitted to the Office of Multifamily Hub Centers to ensure that Capital Improvement Loan Program. Management and Budget (OMB) for payments from mortgage proceeds are OMB Control Number, if applicable: review, as required by the Paperwork made for work actually completed in a 2502–0395. Reduction Act. The Department is satisfactory manner. The certification Description of the need for the soliciting public comments on the regarding prevailing wages is used by information and proposed use: The subject proposal. the Multifamily Hub Centers to ensure collection of such information is DATES: Comments Due Date: September compliance with prevailing wage rates. necessary to the Department to 3, 2002. Agency form numbers, if applicable: determine which projects will best ADDRESSES: Interested persons are HUD–92448. benefit from Flexible Subsidy loans in invited to submit comments regarding Estimation of the total numbers of order to improve financial soundness, this proposal. Comments should refer to hours needed to prepare the information improve management and maintain the proposal by name and/or OMB collection including number of affordability. In addition, this Control Number and should be sent to: respondents, frequency of response, and information provides the Department Wayne Eddins, Reports Management hours of response: The number of with a means to account for, on a project Officer, Department of Housing and respondents is 1,000 generating 12,000 specific basis, the use of flexible subsidy Urban Development, 451 7th Street, responses annually, the estimated time dollars and the progress being made by SW., L’Enfant Plaza Building, Room needed to prepare each response is each project toward its physical, 8003, Washington, DC 20410. approximately 6 hours, the frequency of
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response is monthly, and the total agencies concerning the proposed DEPARTMENT OF HOUSING AND burden hours requested is 72,000. collection of information to: (1) Evaluate URBAN DEVELOPMENT Status of the proposed information whether the proposed collection is [Docket No. FR–4736–N–07] collection: Reinstatement, with change, necessary for the proper performance of of a previously approved collection for the functions of the agency, including Notice of Proposed Information which approval has expired. whether the information will have Collection for Public Comment— Authority: The Paperwork Reduction Act practical utility; (2) evaluate the Management Operations Certification of 1995, 44 U.S.C., Chapter 35, as amended. accuracy of the agency’s estimate of the Dated: June 26, 2002. burden of the proposed collection of AGENCY: Office of the Assistant Sean G. Cassidy, information; (3) enhance the quality, Secretary for Public and Indian Housing, HUD. General Deputy Assistant Secretary for utility, and clarify of the information to Housing—Deputy Federal Housing be collected; and (4) minimize the ACTION: Notice. Commissioner. burden of the collection of information SUMMARY: The proposed information [FR Doc. 02–16763 Filed 7–3–02; 8:45 am] on those who are to respond; including collection requirement described below BILLING CODE 4210–27–M the use of appropriate automated will be submitted to the Office of collection techniques or other forms of Management and Budget (OMB) for information technology, e.g., permitting review, as required by the Paperwork DEPARTMENT OF HOUSING AND electronic submission of responses. URBAN DEVELOPMENT Reduction Act. The Department is This notice also lists the following soliciting public comments on the [Docket No. FR–4739–N–23] information: subject proposal. Notice of Proposed Information Title of Proposal: Local Appeals to DATES: Comments Due Date: September Collection: Comment Request; Local Single-Family Mortgage Limits. 3, 2002. Appeals to Single-Family Mortgage OMB Control Number, if applicable: ADDRESSES: Interested persons are Limits 2502–0302. invited to submit comments regarding this proposal. Comments should refer to AGENCY: Office of the Assistant Description of the need for the the proposal by name and/or OMB Secretary for Housing—Federal Housing information and proposed use : HUD’s Control number and should be sent to: Commissioner, HUD. collection of this information permits Mildred M. Hamman, Reports Liaison ACTION: Notice. interested parties to appeal for increases Officer, Public and Indian Housing, in FHA’s maximum mortgage limits for SUMMARY: The proposed information Department of Housing and Urban specific counties or metropolitan collection requirement described below Development, 451 7th Street, SW., statistical areas (MSA’s). This collection will be submitted to the Office of Room 4238, Washington, DC 20410– Management and Budget (OMB) for also sets forth the general and specific 5000. review, as required by the Paperwork requirements, which must be met before FOR FURTHER INFORMATION CONTACT: Reduction Act. The Department is a property can be endorsed for data to Mildred M. Hamman, (202) 708–0614, soliciting public comments on the support an increase in mortgage limits. extension 4128, for copies of the subject proposal. Agency form numbers, if applicable: proposed forms and other available DATES: Comments Due Date: September None. documents. (This is not a toll-free 3, 2002. Estimation of the total numbers of number). ADDRESSES: Interested persons are hours needed to prepare the information SUPPLEMENTARY INFORMATION: The invited to submit comments regarding collection including number of Department will submit the proposed this proposal. Comments should refer to respondents, frequency of response, and information collection to OMB for the proposal by name and/or OMB hours of response: The estimated review, as required by the Paperwork Control Number and should be sent to: number of respondents is 80 generating Reduction Act of 1995 (44 U.S.C. Wayne Eddins, Reports Management approximately 80 responses annually, Chapter 35, as amended). Officer, Department of Housing and frequency of response is on occasion, This Notice is soliciting comments Urban Development, 451 7th Street, the estimated time needed to prepare from members of the public and affected SW., L’Enfant Plaza Building, Room the response is 40 hours, and the agencies concerning the proposed 8001, Washington, DC 20410. estimated annual burden hours collection of information to: (1) Evaluate FOR FURTHER INFORMATION CONTACT: requested is 3,200. whether the proposed collection of Vance Morris, Director, Office of Single information is necessary for the proper Family Program Development, Status of the proposed information performance of the functions of the Department of Housing and Urban collection: Reinstatement, without agency, including whether the Development, 451 7th Street SW., change, of a previously approved information will have practical utility; Washington, DC 20410, telephone (202) collection for which approval has (2) evaluate the accuracy of the agency’s 708–2121 (this is not a toll free number) expired. estimate of the burden of the proposed for copies of the proposed forms and Authority: The Paperwork Reduction Act collection of information; (3) enhance other available information. of 1995, 44 U.S.C., Chapter 35, as amended. the quality, utility, and clarity of the SUPPLEMENTARY INFORMATION: information to be collected; and (4) The Dated: June 26, 2002. Department is submitting the proposed minimize the burden of the collection of information collection to OMB for Sean G. Cassidy, information on those who are to review, as required by the Paperwork General Deputy Assistant Secretary for respond, including through the use of Reduction Act of 1995 (44 U.S.C. Housing—Deputy Federal Housing appropriate automated collection Chapter 35, as amended). Commissioner. techniques or other forms of information This Notice is soliciting comments [FR Doc. 02–16764 Filed 7–3–02; 8:45 am] technology; e.g., permitting electronic from members of the public and affected BILLING CODE 4210–27–M submission of responses.
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This Notice also lists the following Requiring PHAs to report electronically hours of response: Management information: has enabled HUD to provide a more Operations Certification: 3,169 PHAs; Title of Proposal: Management comprehensive assessment of the PHAs annual submission per PHA; average Operations Certification. receiving federal funds from HUD. The hours for PHA response is 1.9 hours; the OMB Control Number: 2577— Real Estate Assessment Center total reporting burden is 6,202.5 hours. (Formerly 2535–0106). responsibility for this collection of Status of the proposed information Description of the need for the information was transferred to the collection: Extension of a currently information and proposed use: Public Assistant Secretary for Public and Housing Agencies (PHAs) annually Indian Housing. approved collection. submit management operations Agency form numbers, if applicable: Authority: Section 3506 of the Paperwork information to HUD in accordance with Form HUD–50072. Reduction Act of 1995, 44 U.S.C. Chapter 35, the requirements of the Public Housing Members of affected public: Local, as amended. Assessment System. Electronic State, or Tribal Governments, Not-for- Dated: June 28, 2002. submission of this data requires the use profit Institutions. of a template. HUD will continue to use Estimation of the total number of Michael Liu, the management operations information hours needed to prepare the information Assistant Secretary for Public and Indian it collects from PHAs to assist in collection including number of Housing. evaluation of their overall condition. respondents, frequency of response, and BILLING CODE 4210–32–M
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[FR Doc. 02–16767 Filed 7–3–02; 8:45 am] on those who are to respond; including HUD for suitability for possible use to BILLING CODE 4210–32–C the use of appropriate automated assist the homeless. collection techniques or other forms of EFFECTIVE DATE: July 5, 2002. information technology, e.g., permitting FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF HOUSING AND electronic submission of responses. Mark Johnston, Department of Housing URBAN DEVELOPMENT This Notice also lists the following and Urban Development, Room 7262, [Docket No. FR–4739–N–22] information: 451 Seventh Street, SW, Washington, Title of Proposal: Construction DC 20410; telephone (202) 708–1234; Notice of Proposed Information Complaint—Request for Financial TTY number for the hearing- and Collection: Comment Request; Assistance. speech-impaired (202) 708–2565, (these Construction Complaint—Request for OMB Control Number, if applicable: telephone numbers are not toll-free), or Financial Assistance 2502–0047. call the toll-free Title V information line Description of the need for the at 1–800–927–7588. AGENCY: Office of the Assistant information and proposed use: There is SUPPLEMENTARY INFORMATION: In Secretary for Housing-Federal Housing a need for HUD to know defects in new accordance with the December 12, 1988 Commissioner, HUD. construction. The HUD form 92556 is court order in National Coalition for the ACTION: Notice. used to identify the items of complaint Homeless v. Veterans Administration, in order to help the homeowner obtain No. 88–2503–OG (D.D.C.), HUD SUMMARY: The proposed information correction. The information collection is collection requirement described below publishes a Notice, on a weekly basis, also used to identify builders not identifying unutilized, underutilized, will be submitted to the Office of conforming to applicable standards, and Management and Budget (OMB) for excess and surplus Federal buildings to determine eligibility for financial and real property that HUD has review, as required by the Paperwork assistance. Reduction Act. The Department is reviewed for suitability for use to assist Agency form numbers, if applicable: the homeless. Today’s Notice is for the soliciting public comments on the HUD–92556. subject proposal. purpose of announcing that no Estimation of the total numbers of additional properties have been DATES: Comments Due Date: September hours needed to prepare the information determined suitable or unsuitable this 3, 2002. collection including number of week. ADDRESSES: Interested persons are respondents, frequency of response, and invited to submit comments regarding hours of response: The estimated Dated: June 27, 2002. this proposal. Comments should refer to number of respondents is 5,000 John D. Garrity, the proposal by name and/or OMB generating approximately 5,000 annual Director, Office of Special Needs Assistance Control Number and should be sent to: responses, frequency of response is on Programs. Wayne Eddins, Reports Management occasion, the estimated time needed to [FR Doc. 02–16686 7–3–02; 8:45 am] Officer, Department of Housing and prepare each response is 30 minutes, BILLING CODE 4210–29–M Urban Development, 451 7th Street, SW, and the estimated annual burden hours L’Enfant Plaza Building, Room 8001, requested is 2,500. Washington, DC 20410. Status of the proposed information DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT FOR FURTHER INFORMATION CONTACT: collection: Reinstatement, without Vance Morris, Director, Office of Single change, of a previously approved [Docket No. FR–4513–N–10] Family Program Development, collection for which approval has Department of Housing and Urban expired. Credit Watch Termination Initiative Development, 451 7th Street SW, Authority: The Paperwork Reduction Act AGENCY: Office of Assistant Secretary for Washington, DC 20410, telephone (202) of 1995, 44 U.S.C., Chapter 35, as amended. Housing-Federal Housing 708–2121 (this is not a toll free number) Dated: June 26, 2002. Commissioner, HUD. for copies of the proposed forms and Sean G. Cassidy, ACTION: Notice. other available information. General Deputy Assistant Secretary for SUMMARY: This notice advises of the SUPPLEMENTARY INFORMATION: The Housing-Deputy Federal Housing Department is submitting the proposed Commissioner. cause and effect of termination of Origination Approval Agreements taken information collection to OMB for [FR Doc. 02–16765 Filed 7–3–02; 8:45 am] by HUD’s Federal Housing review, as required by the Paperwork BILLING CODE 4210–27–M Reduction Act of 1995 (44 U.S.C. Administration against HUD-approved Chapter 35, as amended). mortgagees through its Credit Watch This Notice is soliciting comments DEPARTMENT OF HOUSING AND Termination Initiative. This notice from members of the public and affected URBAN DEVELOPMENT includes a list of mortgagees which have agencies concerning the proposed had their Origination Approval collection of information to: (1) Evaluate [Docket No. FR–4730–N–27] Agreements (Agreements) terminated. whether the proposed collection is FOR FURTHER INFORMATION CONTACT: The Federal Property Suitable as Facilities necessary for the proper performance of Quality Assurance Division, Office of To Assist the Homeless the functions of the agency, including Housing, Department of Housing and whether the information will have AGENCY: Office of the Assistant Urban Development, 451 Seventh St. practical utility; (2) evaluate the Secretary for Community Planning and SW, Room B133-P3214, Washington, DC accuracy of the agency’s estimate of the Development, HUD. 20410; telephone (202) 708–2830. (This burden of the proposed collection of ACTION: Notice. is not a toll free number). Persons with information; (3) enhance the quality, hearing or speech impairments may utility, and clarity of the information to SUMMARY: This Notice identifies access that number via TTY by calling be collected; and (4) minimize the unutilized, underutilized, excess, and the Federal Information Relay Service at burden of the collection of information surplus Federal property reviewed by (800) 877–8339.
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SUPPLEMENTARY INFORMATION: HUD has within the geographic area served by a 202.7, 202.8 or 202.10 and 202.12, if the authority to address deficiencies in HUD field office, and also exceeds the there has been no Origination Approval the performance of lenders’ loans as national default and claim rate. For the Agreement for at least six months, and provided in the HUD mortgagee tenth review period, HUD is only if the Secretary determines that the approval regulations at 24 CFR 202.3. terminating the Agreement of underlying causes for termination have On May 17, 1999 (64 FR 26769), HUD mortgagees whose default and claim rate been remedied. To enable the Secretary published a notice on its procedures for exceeds both the national rate and 300 to ascertain whether the underlying terminating origination approval percent of the field office rate. causes for termination have been agreements with FHA lenders and Effect remedied, a mortgagee applying for a placement of FHA lenders on Credit new Origination Approval Agreement Watch status (an evaluation period). In Termination of the Agreement must obtain an independent review of the May 17, 1999 notice, HUD advised precludes that branch(s) of the the terminated office’s operations as that it would publish in the Federal mortgagee from originating FHA-insured well as its mortgage production, Register a list of mortgagees which have single family mortgages within the area specifically including the FHA-insured had their Origination Approval of the HUD field office(s) listed in this mortgages cited in its termination Agreements terminated. notice. Mortgagees authorized to notice. This independent analysis shall purchase, hold, or service FHA insured Termination of Origination Approval identify the underlying cause for the mortgages may continue to do so. mortgagee’s high default and claim rate. Agreement Loans that closed or were approved The review must be conducted and before the Termination became effective Approval of a mortgagee by HUD/ issued by an independent Certified may be submitted for insurance FHA to participate in FHA mortgage Public Accountant (CPA) qualified to endorsement. Approved loans are (1) insurance programs includes an perform audits under Government those already underwritten and Agreement between HUD and the Auditing Standards as set forth by the approved by a Direct Endorsement (DE) mortgagee. Under the Agreement, the General Accounting Office. The underwriter employed by an mortgagee is authorized to originate mortgagee must also submit a written unconditionally approved DE lender single family mortgage loans and submit corrective action plan to address each of and (2) cases covered by a firm them to FHA for insurance the issues identified in the CPA’s report, commitment issued by HUD. Cases at endorsement. The Agreement may be along with evidence that the plan has terminated on the basis of poor earlier stages of processing cannot be been implemented. The application for performance of FHA-insured mortgage submitted for insurance by the a new Agreement should be in the form loans originated by the mortgagee. The terminated branch; however, they may of a letter, accompanied by the CPA’s termination of a mortgagee’s Agreement be transferred for completion of report and corrective action plan. The is separate and apart from any action processing and underwriting to another request should be sent to the Director, taken by HUD’s Mortgagee Review mortgagee or branch authorized to Office of Lender Activities and Program Board under HUD’s regulations at 24 originate FHA insured mortgages in that Compliance, 451 Seventh Street, SW., CFR part 25. area. Mortgagees are obligated to continue to pay existing insurance Room B133–P3214, Washington, DC Cause premiums and meet all other obligations 20410 or by courier to 490 L’Enfant HUD’s regulations permit HUD to associated with insured mortgages. Plaza, East, SW., Suite 3214, terminate the Agreement with any A terminated mortgagee may apply for Washington, DC 20024. mortgagee having a default and claim a new Origination Approval Agreement Action rate for loans endorsed within the if the mortgagee continues to be an preceding 24 months that exceeds 200 approved mortgagee meeting the The following mortgagees have had percent of the default and claim rate requirements of 24 CFR 202.5, 202.6, their Agreements terminated by HUD:
Termination Home ownership Mortgagee name Mortgagee branch address HUD office jurisdictions effective date centers
A and E Mortgage Co. LLC ...... 625 W First Ave., Roselle, NJ 07203 Newark, NJ ...... 05/02/2002 Philadelphia. Alliance Mortgage Banking Corp ...... 2735 Buffalo Road, Rochester, NY Buffalo, NY ...... 05/01/2002 Philadelphia. 14624. Embassy Mortgage Inc ...... 2121 Woodale Blvd., Ste C, Baton New Orleans, LA ...... 05/01/2002 Denver. Rouge, LA 70806. Lincoln Mortgage Corp ...... 27950 Orchard Lake Rd., Ste 120, Detroit, MI ...... 03/02/2002 Philadelphia. Farmington Hills, MI 48334. Luzal Inc ...... 10312 Jurupa Road, Mira Loma, CA Santa Ana, CA ...... 05/01/2002 Santa Ana. 91752. Mortgage One Corp ...... 9610 Two Notch Road, Ste 5, Co- Columbia, SC ...... 05/01/2002 Atlanta. lumbia, SC 29223. Regal Mortgage Services, Inc ...... 3802 W. 96th Street, Ste 120, Indi- Indianapolis, IN ...... 05/02/2002 Atlanta. anapolis, IN 46268. SGB Corporation ...... 1 South 660 Midwest Rd., Ste 100, Chicago, IL ...... 05/02/2002 Atlanta. Oakbrook Terrace, IL 60181.
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Dated: June 24, 2002. The applicant requests a permit to hearing is at the discretion of the John C. Weicher, import the sport-hunted trophy of one Director. Assistant Secretary for Housing-Federal male bontebok (Damaliscus pygargus Applicant: Bonnie L. Prochnow, Housing Commissioner. dorcas) culled from a captive herd Medford, WI, PRT–058491. [FR Doc. 02–16768 Filed 7–3–02; 8:45 am] maintained under the management The applicant requests a permit to BILLING CODE 4210–27–P program of the Republic of South Africa import a polar bear (Ursus maritimus) for the purpose of enhancement of the sport hunted from the Lancaster Sound survival of the species. polar bear population in Canada for DEPARTMENT OF THE INTERIOR Applicant: Raymond D. Bond, Butte, personal use. MT, PRT–058635. Applicant: Charles A. Dorrance, Fish and Wildlife Service The applicant requests a permit to Austin, TX, PRT–058414. import the sport-hunted trophy of one The applicant requests a permit to Receipt of Applications for Permit male bontebok (Damaliscus pygargus import a polar bear (Ursus maritimus) sport hunted from the Northern Beaufort AGENCY: dorcas) culled from a captive herd Fish and Wildlife Service, Sea polar bear population in Canada for Interior. maintained under the management program of the Republic of South Africa personal use. ACTION: Notice of receipt of applications Applicant: George R. Harms, Brielle, for permit. for the purpose of enhancement of the survival of the species. NJ, PRT–058893. The applicant requests a permit to SUMMARY: The public is invited to Applicant: Raymond H. Robertson, import a polar bear (Ursus maritimus) comment on the following applications Carson City, NV, PRT–058816. to conduct certain activities with sport hunted from the Lancaster Sound The applicant requests a permit to polar bear population in Canada for endangered species and/or marine import the sport-hunted trophy of one mammals. personal use. male bontebok (Damaliscus pygargus The U.S. Fish and Wildlife Service DATES: Written data, comments or dorcas) culled from a captive herd has information collection approval requests must be received by August 5, maintained under the management from OMB through March 31, 2004, 2002. program of the Republic of South Africa OMB Control Number 1018–0093. ADDRESSES: Documents and other for the purpose of enhancement of the Federal Agencies may not conduct or information submitted with these survival of the species. sponsor and a person is not required to applications are available for review, Applicant: Antibody Systems, Inc., respond to a collection of information subject to the requirements of the Hurst, TX, PRT–058324. unless it displays a current valid OMB Privacy Act and Freedom of Information The applicant requests a permit to control number. Act, by any party who submits a written import biological samples from Komodo Dated: June 21, 2002. request for a copy of such documents Island monitor (Varanus komodoensis) within 30 days of the date of publication collected in the wild from Komodo, Michael S. Moore, of this notice to: U.S. Fish and Wildlife Rintja, and Flores Islands, Indonesia for Senior Permit Biologist, Branch of Permits, Service, Division of Management the purpose of scientific research. This Division of Management Authority. Authority, 4401 North Fairfax Drive, notice covers activities conducted by [FR Doc. 02–16805 Filed 7–3–02; 8:45 am] Room 700, Arlington, Virginia 22203; the applicant over a five year period. BILLING CODE 4310–55–P fax 703/358–2281. Applicant: Dr. Claudio Ciofi/Yale University, New Haven, CT, PRT– FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF THE INTERIOR Division of Management Authority, 058696. The applicant requests a permit to telephone 703/358–2104. Fish and Wildlife Services SUPPLEMENTARY INFORMATION: import biological samples from Komodo Island monitor (Varanus komodoensis) Notice of Receipt of Applications for Endangered Species collected from wild and captive-bred Endangered Species Recovery Permit The public is invited to comment on specimens in Indonesia, for the purpose the following application(s) for a permit of scientific research. This notice covers AGENCY: Fish and Wildlife Service, to conduct certain activities with activities conducted by the applicant Interior. endangered species. This notice is over a five year period. ACTION: Notice of receipt of permit applications. provided pursuant to Section 10(c) of Marine Mammals the Endangered Species Act of 1973, as SUMMARY: The following applicants have amended (16 U.S.C. 1531, et seq.). The public is invited to comment on applied for a scientific research permit Written data, comments, or requests for the following application(s) for a permit to conduct certain activities with copies of these complete applications to conduct certain activities with marine endangered species pursuant to section should be submitted to the Director mammals. The application(s) was 10(a)(1)(A) of the Endangered Species (address above). submitted to satisfy requirements of the Applicant: Brian Bailey, Roswell, NM, Marine Mammal Protection Act of 1972, Act of 1973, as amended (16 USC 1531 PRT–058597. as amended (16 U.S.C. 1361 et seq.) and et seq.). The U.S. Fish and Wildlife The applicant requests a permit to the regulations governing marine Service solicits review and comment import the sport-hunted trophy of one mammals (50 CFR part 18). Written from local, State, and Federal agencies, male bontebok (Damaliscus pygargus data, comments, or requests for copies and the public on the following permit dorcas) culled from a captive herd of the complete applications or requests requests. maintained under the management for a public hearing on these DATES: Written comments on these program of the Republic of South Africa applications should be submitted to the permit applications must be received for the purpose of enhancement of the Director (address above). Anyone within 30 days of the date of publication survival of the species. requesting a hearing should give of this notice. Applicant: William E. Kessler, specific reasons why a hearing would be ADDRESSES: Written data or comments Suwanee, GA, PRT–058636. appropriate. The holding of such a should be submitted to the Chief,
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Endangered Species, Ecological Dated: June 12, 2002. Dated: June 21, 2002. Services, U.S. Fish and Wildlife Service, Carolyn A. Bohan, Michael S. Moore, 911 NE. 11th Avenue, Portland, Oregon Regional Director, Region 1, Portland, Oregon. Senior Permit Biologist, Branch of Permits, 97232–4181; Fax: (503) 231–6243. [FR Doc. 02–16798 Filed 7–3–02; 8:45 am] Division of Management Authority. Please refer to the respective permit BILLING CODE 4310–55–M [FR Doc. 02–16806 Filed 7–3–02; 8:45 am] number for each application when BILLING CODE 4310–55–P submitting comments. All comments received, including names and DEPARTMENT OF THE INTERIOR addresses, will become part of the DEPARTMENT OF THE INTERIOR official administrative record and may Fish and Wildlife Service be made available to the public. Bureau of Land Management Issuance of Permit for Marine FOR FURTHER INFORMATION CONTACT: [AK–990–02–5101–ER–L016] Documents and other information Mammals submitted with these applications are AGENCY: Fish and Wildlife Service, Notice of Availability of Trans-Alaska available for review, subject to the Interior. Pipeline System Right-of-Way Renewal requirements of the Privacy Act and ACTION: Notice of issuance of permit for Draft Environmental Impact Statement Freedom of Information Act, by any marine mammals. (DEIS), Announcement of Public party who submits a written request for Review Period and Hearings Schedule a copy of such documents within 20 SUMMARY: The following permits were Including Subsistence-Related days of the date of publication of this issued. Hearings notice to the address above; telephone: ADDRESSES: Documents and other AGENCY: Bureau of Land Management, (503) 231–2063. Please refer to the information submitted for these Interior. respective permit number for each applications are available for review by ACTION: Notice of Availability of DEIS, application when requesting copies of any party who submits a written request documents. Announcement of Public Review Period to the U.S. Fish and Wildlife Service, and Hearings Schedule Including SUPPLEMENTARY INFORMATION: Division of Management Authority, Subsistence-Related Hearings. 4401 North Fairfax Drive, Room 700, Permit No. TE–026092 Arlington, Virginia 22203; fax (703) SUMMARY: The Bureau of Land Applicant: Paul Kephart, Carmel 358–2281. Management (BLM) announces Valley, California. The permittee FOR FURTHER INFORMATION CONTACT: availability of the Trans-Alaska Pipeline requests an amendment to remove/ Division of Management Authority, System (TAPS) Right-of-Way Renewal reduce to possession the Erysimum telephone 703/358–2104. Draft Environmental Impact Statement menziesii (Menzies’ wallflower) in SUPPLEMENTARY INFORMATION: On (DEIS). The current Right-of-Way conjunction with restoration efforts in January 11, 2002, a notice was expires in 2004. Three alternatives are Monterey County, California for the published in the Federal Register (67 considered in the DEIS: to renew the purpose of enhancing its survival. FR 1494), that an application had been TAPS Right-of-Way for 30 years, to Permit No. TE–057714 filed with the Fish and Wildlife Service renew the Right-of-Way for less than 30 by Xavier University for a permit (PRT– years, and to not renew the Right-of- Applicant: Dawn Reis, Santa Cruz, Way. Appendix E of the Draft EIS California. The applicant request a 049136) to conduct research with sound recognition on one captive-held and one indicates that each of the alternatives permit to take (harass by survey, may affect subsistence activities. As captive-born manatee (Trichechus capture, and release) the tidewater goby required by section 810 of the Alaska (Eucyclogobius newberryi) in manatus latirosis). Notice is hereby given that on June National Interest Lands Conservation conjunction with surveys in Santa Cruz, Act (ANILCA), BLM is evaluating the Monterey, San Benito, and San Luis 19, 2002, as authorized by the provisions of the Marine Mammal effects of the alternatives on subsistence Obispo Counties, California for the uses and needs and is holding public purpose of enhancing its survival. Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.), and the Endangered hearings in the vicinity of the area Permit No. TE–056801 Species Act of 1973, as amended (16 involved. BLM is closely cooperating with the U.S.C. 1531, et seq.), the Fish and Applicant: Alan Roy Wilkins, State of Alaska in preparation of the Wildlife Service authorized the Middleton, Massachusetts. The DEIS and is coordinating all aspects of requested permit subject to certain applicant requests a permit to purchase, the renewal process within the purview conditions set forth therein. in interstate commerce, captive bred of the inter-agency Joint Pipeline Office. Hawaiian (=nene) geese (Nesochen On May 7, 2002, a notice was BLM and the Alaska Department of [=Branta] sandvicensis) for the purpose published in the Federal Register (67 Natural Resources will offer joint public of enhancing the species propagation FR 30721), that an application had been hearings for the TAPS Renewal DEIS, and survival. This notification covers filed with the Fish and Wildlife Service ANILCA 810 Subsistence, and the State activities conducted by the applicant by Truman D. Wade for a permit (PRT– of Alaska Commissioner’s Analysis and over the next 5 years. 055298) to import one polar bear taken from the Northern Beaufort Sea Proposed Determination. Although the Permit No. 056955 population in Canada for personal use. meetings are being held jointly, Applicant: Morro Estuary Greenbelt Notice is hereby given that on June commenters will be asked to state if Alliance, Incorporated. The permittee 11, 2002, as authorized by the they are addressing state or federal request an amendment to take (locate provisions of the Marine Mammal documents. and capture) the Morro shoulderband Protection Act of 1972, as amended (16 DATES: The DEIS will be available snail (Helminthoglypta walkeriana) in U.S.C. 1361 et seq.) the Fish and beginning July 5, 2002. The public will conjunction with habitat enhancement Wildlife Service authorized the have 45 days to review and comment on in San Luis Obispo, California for the requested permit subject to certain the DEIS. The BLM will accept written purpose of enhancing its survival. conditions set forth therein. comments on the DEIS postmarked by
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August 20, 2002. Written comments under supervision and direction by Hotel, Denali Room, 500 West Third may also be hand-delivered to the Joint BLM. Avenue Pipeline Office in Anchorage, Alaska, by • Tuesday, August 6, 2002, 7 p.m. DEIS Availability 4 p.m. ADT on August 20, 2002. ADT: Fairbanks; Chena River To obtain an electronic copy: Convention Center, Conference Room/ ADDRESSES: Written comments should • visit the TAPS Renewal EIS Web Main Hall A, 109 Clay Street be mailed to BLM TAPS Renewal EIS, site at http://tapseis.anl.gov (available • Wednesday, August 7, 2002, 2 p.m. Argonne National Laboratory EAD/900, as downloadable and searchable pdf ADT: Minto, Minto Lodge 9700 S. Cass Avenue, Argonne, IL files), • Friday, August 9, 2002, 7 p.m. ADT: 60439. As an alternative, written • order a CD through the TAPS Barrow; Inupiat Heritage Center, multi- comments can be hand-delivered to Renewal EIS Web site at http:// purpose room; 5421 Northstar Street BLM TAPS Renewal Team in Anchorage tapseis.anl.gov (Inupiat translator) at the Joint Pipeline Office 411 W. 4th Hard copies of this voluminous The BLM seeks information and Avenue, Suite 2 [Do not mail comments document will be available at the comments on the potential impacts to this address]. Comments also can be following public reading rooms or can discussed in the DEIS and additional submitted through the ‘‘Public be requested through the TAPS Renewal data or information that would improve Comment Form’’ feature on the TAPS EIS Web site at http://tapseis.anl.gov the analysis in the DEIS. BLM is also Renewal EIS Web site at http:// seeking comments on the subsistence Anchorage tapseis.anl.gov, by fax toll free to 1– evaluation in Appendix E of the DEIS. 866–542–5904, or by voice message toll • Alaska Resources Library; 3150 C free at 1–866–542–5903. Street, Suite 100 Linda S.C. Rundell, • Acting State Director. FOR FURTHER INFORMATION CONTACT: Rob Z.J. Loussac Library, 3600 Denali Street [FR Doc. 02–16236 Filed 7–3–02; 8:45 am] McWhorter at the Joint Pipeline Office, • 411 W 4th Avenue, Suite 2, Anchorage, Bureau of Land Management Public BILLING CODE 4310–JA–P Alaska, phone 907–257–1355, e-mail Room; 222 West 7th Avenue, #13 • State of Alaska, Department of [email protected], or visit the TAPS Natural Resources Public Information DEPARTMENT OF THE INTERIOR Renewal EIS Web site at http:// Center; 550 West 7th Avenue, Suite tapseis.anl.gov. 1260 Minerals Management Service Withholding of Personal Information: It is the BLM’s practice to make Barrow Agency Information Collection comments, including names and Tuzzy Consortium Library Activities: Proposed Collection, addresses of commenters, available for Comment Request Cordova Public Library public review during regular business AGENCY: Minerals Management Service hours. Individual commenters may Fairbanks (MMS), Interior. request that we withhold their home • Fairbanks North Star Borough ACTION: Notice of an extension of a address from the public comment Public Library; 1215 Cowles Street currently approved information record, and we will honor such requests • Bureau of Land Management Public collection (OMB Control Number 1010– to the extent allowable by law. Room; 1150 University Avenue 0119). Circumstances may also arise in which • State of Alaska, Department of we would withhold from the public Natural Resources Public Information SUMMARY: To comply with the comment record a commenter’s identity, Center; 3700 Airport Way Paperwork Reduction Act of 1995, we as allowable by law. If you wish us to are inviting comments on a collection of withhold your name and/or address, Glennallen information that we will submit to the you must state this prominently at the Bureau of Land Management; Office of Management and Budget beginning of your comment. However, Glennallen Field Office (OMB) for review and approval. The we will not consider anonymous information collection request (ICR) is comments. We will make all Juneau titled ‘‘Royalty-in-Kind (RIK) submissions from organizations or Alaska State Library Determination of Need.’’ businesses, and from individuals Valdez Public Library DATES: Submit written comments on or identifying themselves as Washington, DC before September 3, 2002. representatives or officials of ADDRESSES: Submit written comments organizations or businesses, available Department of the Interior Library; 1849 C Street, NW to Carol P. Shelby, Regulatory for public inspection in their entirety. Specialist, Minerals Management SUPPLEMENTARY INFORMATION: The EIS is Meeting/Hearing Dates and Locations Service, Minerals Revenue Management, being prepared under authority of the Oral or written comments can be P.O. Box 25165, MS 320B2, Denver, Federal Land Policy and Management made at one of the following locations Colorado 80225. If you use an overnight Act of 1976 (43 U.S.C. 1701), as on the dates specified: courier service, our courier address is amended; the National Environmental • Friday, July 26, 2002, 7 p.m. ADT: Building 85, Room A–614, Denver Policy Act of 1969 (42 U.S.C. 4321), as Cordova; Moose Lodge, 514 2nd Street Federal Center, Denver, Colorado 80225. amended; the Council on Environmental • Tuesday, July 30, 2002, 7 p.m. ADT: You may also e-mail your comments to Quality regulations (40 CFR parts 1500– Valdez; Valdez Convention and Civic us at [email protected]. Include 1508); and the Mineral Leasing Act of Center, Ballroom 1, 110 Clifton Drive the title of the information collection 1920 (30 U.S.C. 185), as amended, • Wednesday, July 31, 2002, 7 p.m. and the OMB control number in the including Title II—the Trans-Alaska ADT: Glennallen; Copper River High ‘‘Attention’’ line of your comment. Also Pipeline Authorization Act (43 U.S.C. School auditorium, Mile 186, Glenn include your name and return address. 1651). Argonne National Laboratory, Highway Submit electronic comments as an Argonne, Illinois, is providing technical • Monday, August 5, 2002, 7 p.m. ASCII file avoiding the use of special assistance and is preparing the DEIS ADT: Anchorage; Anchorage Hilton characters and any form of encryption.
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If you do not receive a confirmation that functions and assists the Secretary in independent refiners have access to we have received your e-mail, contact carrying out DOI’s Indian trust ongoing supplies of crude oil at Ms. Shelby at (303) 231–3151. responsibility. equitable prices. If MMS determines FOR FURTHER INFORMATION CONTACT: MMS, on behalf of the Secretary, also that small refiners do not have adequate Carol P. Shelby, telephone (303) 231– performs Determinations of Need prior access to crude oil supplies, we will 3151, FAX (303) 231–3385, e-mail to issuing a Notice of Availability of take the Government’s royalty oil in [email protected]. Sale in the Federal Register advising kind and offer the oil for sale to small refiners. SUPPLEMENTARY INFORMATION: industry of a forthcoming RIK sale. The Title: Royalty-in-Kind (RIK) first step in this process is to issue a MMS is requesting OMB’s approval to Determination of Need. Federal Register notice requesting continue to collect this information. OMB Control Number: 1010–0119. specific information from eligible Without feedback from interested Bureau Form Number: None. refiners, such as: the location of their refiners regarding their recent Abstract: The Department of the refinery; desirability of offshore versus marketplace experience in obtaining Interior (DOI) is responsible for matters onshore crude; type of crude desired adequate crude oil supplies and relevant to mineral resource (e.g., Wyoming Sweet); ability to obtain whether those supplies are fairly priced, development on Federal and Indian long-term supply of desired crude (with MMS cannot perform a reasonable or lands and the Outer Continental Shelf supporting documentation such as meaningful Determination of Need. (OCS). The Secretary of the Interior ‘‘denial’’ by major supplier); ability to Proprietary information that is (Secretary) is responsible for managing obtain desired crude at fair market submitted is protected, and there are no the production of minerals from Federal prices (with supporting documentation questions of a sensitive nature included and Indian lands and the OCS, that desired oil was not available or in this information collection. collecting royalties from lessees who equitably priced for the area or region in Frequency: On occasion. produce minerals, and distributing the question); percentage of total refining Estimated Number and Description of funds collected in accordance with capacity attributable to Federal oil Respondents: 25 small refiners. applicable laws. The Secretary has an versus other sources; etc. MMS uses Estimated Annual Reporting and Indian trust responsibility to manage feedback from refiners (or other Recordkeeping ‘‘Hour’’ Burden: 100 Indian lands and seek advice and interested parties, like lease owners or hours. The table below shows the information from Indian beneficiaries. operators) to assess current marketplace breakdown of burden hours by CFR MMS performs the royalty management conditions—i.e., whether small, section and paragraph:
Burden Annual Annual 30 CFR section Reporting requirement hours per number of burden response responses hours
208.4(a) and (d) ...... The Secretary may evaluate crude oil market conditions from time to time. 4 25 100 * * * The Secretary will review these items [submitted by small refiners] and will determine whether eligible refiners have access to adequate supplies of cure oil * * * Interim sales. The potentially eligible refiners, individually or collectively, must submit documentation demonstrating that adequate sup- plies of crude oil at equitable prices are not available for purchase * * *.
Estimated Annual Reporting and collected; and (d) minimize the burden sampling, testing equipment; and record Recordkeeping ‘‘Non-hour Cost’’ on the respondents, including the use of storage facilities. Generally, your Burden: We have identified no ‘‘non- automated collection techniques or estimates should not include equipment hour’’ cost burdens. other forms of information technology. or services purchased: (i) before October Comments: The PRA (44 U.S.C. 3501, The PRA also requires agencies to 1, 1995; (ii) to comply with et seq.) provides that an agency may not estimate the total annual reporting requirements not associated with the conduct or sponsor, and a person is not ‘‘non-hour cost’’ burden to respondents information collection; (iii) for reasons required to respond to, a collection of or recordkeepers resulting from the other than to provide information or information unless it displays a collection of information. We have not keep records for the Government; or (iv) currently valid OMB control number. identified non-hour cost burdens for as part of customary and usual business Before submitting an ICR to OMB, PRA this information collection. If you have or private practices. Section 3506(c)(2)(A) requires each costs to generate, maintain, and disclose We will summarize written responses agency ‘‘* * * to provide notice * * * this information, you should comment to this notice and address them in our and otherwise consult with members of and provide your total capital and ICR submission for OMB approval, the public and affected agencies startup cost components or annual including appropriate adjustments to concerning each proposed collection of operation, maintenance, and purchase the estimated burden. We will provide information * * *.’’ Agencies must of service components. You should a copy of the ICR to you without charge specifically solicit comments to: (a) describe the methods you use to upon request and the ICR will also be evaluate whether the proposed estimate major cost factors, including posted on our web site at http:// collection of information is necessary system and technology acquisition, www.mrm.mms.gov/Laws_R_D/ for the agency to perform its duties, expected useful life of capital FRNotices/FRInfColl.htm. including whether the information is equipment, discount rate(s), and the Public Comment Policy. We will post useful; (b) evaluate the accuracy of the period over which you incur costs. all comments in response to this notice agency’s estimate of the burden of the Capital and startup costs include, on our web site at http:// proposed collection of information; (c) among other items, computers and www.mrm.mms.gov/Laws_R_D/InfoColl/ enhance the quality, usefulness, and software you purchase to prepare for InfoColCom.htm. We will also make clarity of the information to be collecting information; monitoring, copies of the comments available for
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public review, including names and from the date of this publication, northeastern Wisconsin (the ‘‘Site’’), addresses of respondents, during regular comments relating to the proposed De pursuant to the Comprehensive business hours at our offices in Minimis Consent Decree and Consent Environmental Response, Lakewood, Colorado. Individual Order. Comments should be addressed Compensation, and Liability Act, 42 respondents may request that we to the Assistant Attorney General, U.S.C. 9601 et seq. withhold their home address from the Environment and Natural Resources The proposed consent decree sets public record, which we will honor to Division, PO Box 7611, U.S. Department forth the terms of a proposed settlement the extent allowable by law. There also of Justice, Washington, DC 20044–7611, between the Plaintiffs and Fort James may be circumstances in which we and should refer to United States v. addressing both: (1) the claims for would withhold from the rulemaking Acme Alloys, et al., DOJ Ref. #90–11–2– recovery of response costs that are record a respondent’s identity, as 1075/2. included in the complaint; and (2) allowable by law. If you request that we The proposed De Minimis Consent related claims for natural resource withhold your name and/or address, Decree may be examined at the office of damages at the Site. The Oneida Tribe state this prominently at the beginning the United States Attorney for the of Indians of Wisconsin and the of your comment. However, we will not District of New Jersey, 502 Federal Menominee Indian Tribe of Wisconsin consider anonymous comments. We Building, 970 Broad Street (contact are additional parties to the settlement, will make all submissions from Assistant United States Attorney Susan as Tribal trustees for injured natural organizations or businesses, and from Cassell); and the Region II Office of the resources at and near the Site. individuals identifying themselves as Environmental Protection Agency, 290 Under the settlement, Fort James representatives or officials of Broadway, New York, New York 10007– would agree to preserve more than 1000 organizations or businesses, available 1866 (contact Assistant Regional acres of wildlife habitat in northeastern for public inspection in their entirety. Counsel, Damaris Cristiano). A copy of Wisconsin and pay an additional $8.5 MMS Information Collection the proposed De Minimis Consent million for other restoration projects as Clearance Officer: Jo Ann Lauterbach, Decree may be obtained by mail from compensation for injuries to natural (202) 208–7744. the Consent Decree Library, PO Box resources caused by widespread Dated: June 26, 2002. 7611, Washington, DC. 20044–7611 or polychlorinated biphenyl (‘‘PCB’’) contamination at the Site. The Federal, Lucy Querques Denett, by faxing a request to Tonia Fleetwood, fax no. (202) 514–0097, phone State, and Tribal trustees that are parties Associate Director for Minerals Revenue to the Consent Decree have reviewed Management. confirmation number (202) 514–1547. In requesting a copy please refer to the and approved the specific restoration [FR Doc. 02–16890 Filed 7–3–02; 8:45 am] referenced case and enclose a check in projects described in an Appendix to BILLING CODE 4310–MR–P the amount of $9.00 (25 cents per page the Consent Decree, and will jointly reproduction costs) for the De Minimis select future projects to be funded with Consent Decree and Consent Order, additional money available under the DEPARTMENT OF JUSTICE payable to the U.S. Treasury. settlement. In addition to its payments for restoration projects, Fort James Notice of Lodging of Consent Decree Ronald Gluck, would pay $1.6 million to help offset Pursuant to the Comprehensive Assistant Section Chief, Environmental natural resource damage assessment Environmental Response Enforcement Section, Environment and costs and certain cleanup-related Compensation and Liability Act Natural Resources Division. response costs incurred by the United (‘‘CERCLA’’) [FR Doc. 02–16778 Filed 7–3–02; 8:45 am] States and the State. Notice is hereby given that a proposed BILLING CODE 4410–15–M For a period of thirty (30) days from consent decree in United States v. Acme the date of this publication, the Department of Justice will receive Alloys et al., Civ. No. 02–2886 (WHW), DEPARTMENT OF JUSTICE was lodged with the United States comments relating to the proposed District Court for the District of New Notice of Lodging of Consent Decree consent decree. Comments should be Jersey on June 6, 2002, (‘‘De Minimis Pursuant to the Comprehensive addressed to the Assistant Attorney Consent Decree’’). The De Minimis Environmental Response, General, Environment and Natural Consent Decree will resolve the liability Compensation, and Liability Act Resources Division, United States of eleven parties against whom the Department of Justice, P.O. Box 7611, United States asserted a claim on behalf In accordance with Departmental Washington, DC 20044–7611, and of the United States Environmental policy, the Department of Justice gives should refer to United States and the Protection Agency under sections 106 notice that a proposed consent decree State of Wisconsin v. Fort James and 107(a) of the Comprehensive with Fort James Operating Company Operating Company, Civil Action No. Environmental Response, (‘‘Fort James’’) in the case captioned 02–C–0602 (E.D. Wis.), and DOJ Compensation, and Liability Act, as United States and the State of Reference Number 90–11–2–1045/1. A amended (‘‘CERCLA’’), 42 U.S.C. 9606 Wisconsin v. Fort James Operating copy of the proposed consent decree and 9670(a), for injunctive relief and Company, Civil Action No. 02–C–0602 may be examined at: (1) the Office of the recovery of costs incurred by the United (E.D. Wis.) was lodged with the United United States Attorney for the Eastern States in connection with the NL States District Court for the Eastern District of Wisconsin, U.S. Courthouse Industries Superfund Site in District of Wisconsin on June 20, 2002. and Federal Building—Room 530, 517 Pedricktown, New Jersey. The De The complaint filed in the case by the E. Wisconsin Avenue, Milwaukee, Minimis Consent Decree requires 11 United States and the State of Wisconsin 53202 (contact Matthew generators of hazardous substances to Wisconsin (the ‘‘Plaintiffs’’) alleges that Richmond (414–297–1700)); and (2) the pay $460,000, which will be deposited Fort James is party liable for certain U.S. Environmental Protection Agency into a special account to pay for response costs associated with the (Region 5), 77 West Jackson Boulevard, response activities at the Site. release and threatened release of Chicago, Illinois 60604 (contact Peter The Department of Justice will hazardous substances from facilities at Felitti (312–886–5114)). Copies of the receive, for a period of thirty (30) days or near the Fox River/Green Bay Site in proposed consent decree may also be
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obtained by mail from the Department Pennsylvania 15219, and at U.S. EPA The proposed consent decree may be of Justice Consent Decree Library, PO Region III Office, 1650 Arch Street, examined at the Office of the United Box 7611, Washington, DC 20044–7611. Philadelphia, Pennsylvania 19103– States Attorney, 615 Chestnut St, Ste In requesting copies, please refer to the 2029. A copy of the Consent Decree may 1250, Philadelphia, PA 19106, and at above-referenced case name and DOJ also be obtained by mail from the U.S. EPA Region III, 1650 Arch Street, Reference Number, and enclose a check Consent Decree Library, P.O. Box 7611, Philadelphia, PA 19013. A copy of the made payable to the Consent Decree U.S. Department of Justice, Washington, proposed consent decree may also be Library for $15.25 (61 pages at 25 cents DC 20044–7611 or by faxing a request to obtained by mail from the Consent per page reproduction cost). Tonia Fleetwood, fax no. (202) 514– Decree Library, PO Box 7611, U.S. 0097, phone confirmation number (202) William D. Brighton, Department of Justice, Washington, DC 514–1547. In requesting a copy, please 20044–7611. When requesting a copy, Assistant Chief, Environmental Enforcement enclose a check in the amount of $29.00 Section, Environment and Natural Resources please enclose a check in the amount of Division. (25 cents per page reproduction cost) $4.75 (25 cents per page reproduction payable to the U.S. Treasury. [FR Doc. 02–16779 Filed 7–3–02; 8:45 am] cost) payable to the U.S. Treasury. Exhibits to the consent decree may be BILLING CODE 4410–15–M Robert Brook, obtained for an additional charge. Assistant Chief, Environmental Enforcement Section, Environment and Natural Resources Robert Brook, DEPARTMENT OF JUSTICE Division. Assistant Section Chief, Environmental [FR Doc. 02–16777 Filed 7–3–02; 8:45 am] Enforcement Section, Environment and Notice of Lodging of Consent Decree BILLING CODE 4410–15–M Natural Resources Division. Under the Clean Water Act [FR Doc. 02–16782 Filed 7–3–02; 8:45 am] Under 28 CFR 50.7, notice is hereby BILLING CODE 4410–15–M given that on June 17, 2002, a Consent DEPARTMENT OF JUSTICE Decree in United States of America, Notice of Lodging of Consent Decree DEPARTMENT OF JUSTICE Plaintiff, and Commonwealth of Under the Comprehensive Pennsylvania, Plaintiff-Intervenor v. Environmental Response, Notice of Lodging of Amendment to Borough of Indiana, Defendant, Civil Compensation and Liability Act Action No. 02–CV–1079 was lodged Consent Decree Pursuant to the with the United States District Court for Under 28 CFR 50.7, notice is hereby Comprehensive Environmental the Western District of Pennsylvania. given that on June 24, 2002, a proposed Response, Compensation, and Liability In this action the United States sought consent decree in United States v. Act (CERCLA) injunctive relief and civil penalties Pennsylvania Industrial Development under Section 301 of the Clean Water Authority, et al., Civ. Action No. 02– In accordance with Departmental Act, 33 U.S.C. 1311 for the Borough of 4038, was lodged with the United States policy, 28 CFR 50.7, notice is hereby Indiana, Pennsylvania’s wastewater District Court for the Eastern District of given that a proposed and agreed upon treatment plant and sewer collection Pennsylvania. Amendment to Consent Decree Entered system. The Consent Decree addresses In this action the United States is on May 18, 1995 in United States v. the Borough of Indiana’s (1) discharge of seeking response costs pursuant to the Scovill, Inc., Civil Action No. pollutants from its wastewater treatment Comprehensive Environmental 3:95CV159, was lodged with the United plan, (2) bypassing sewage from an Response, Compensation and Liability States District Court for the Eastern outfall in violation of the bypass Act (‘‘CERCLA’’), 42 U.S.C. 9601 et seq., District of Virginia on June 6 2002. prohibition in its permit, and (3) in connection with the Franklin The original Consent Decree involved discharge of sewage from two Smelting Site (‘‘Site’’) in Philadelphia, the settlement of claims brought by the unpermitted sanitary sewer overflow Pennsylvania. The decree will require United States, pursuant to the points in its collection system. Pursuant defendants to pay $5,000 in partial Comprehensive Environmental to the settlement, the Borough of reimbursement of the United States’ Response, Compensation, and Liability Indiana will also pay a civil penalty of past response costs. Act (CERCLA). It sought recovery of $240,000. The Department of Justice will receive costs and injunctive relief for the The Department of Justice will receive comments relating to the proposed Arrowhead Plating Superfund Site for a period of thirty (30) days from the consent decree for a period of thirty (30) located in Montross, Westmoreland date of this publication comments days from the date of this publication. County, Virginia. The proposed and relating to the Consent Decree. Comments should be addressed to the agreed upon Amendment would modify Comments should be addressed to the Assistant Attorney General, the Consent Decree by: (1) Conforming Assistant Attorney General. Environment and Natural Resources the groundwater remedy provisions of Environment and Natural Resources Division, and transmitted by one of the the 1995 Consent Decree to the Division, P.O. Box 7611, U.S. following methods: (1) via U.S. Mail to requirements of the 2001 Record of Department of Justice, Washington, DC PO Box 7611, U.S. Department of Decision Amendment which replaced 20044–7611, and should refer to United Justice, Washington, DC 20044–7611; (2) the pump and treat system selected as States of America, Plaintiff, and by facsimile to (202) 353–0296; and/or the remedy in the original ROD with a Commonwealth of Pennsylvania, (3) by overnight delivery, other than Permeable Reactive Subsurface Barrier Plaintiff-Intervenor v. Borough of through the U.S. Postal Service, c/o (‘‘PRSB’’) and surface cap; (2) including Indiana, Defendant, D.J. Ref. 90–5–1–1– Chief, Environmental Enforcement an agreement where Saltire Industrial, 4475. Section, 1425 New York Avenue, NW., Inc. (successor to Scovill, Inc.) agrees to The Consent Decree may be examined 13th Floor, Washington DC 20005. Each undertake certain unanticipated work at at the Office of the United States communication should reference United the Site in exchange for a credit against Attorney, Western District of States v. Pennsylvania Industrial future oversight costs incurred by the Pennsylvania, 633 United States Post Development Authority, et al., D.J. Ref. EPA; and (3) updating the Office & Courthouse, Pittsburgh, No. 90–11–2–07622/1. representatives of the parties designated
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to receive formal notices and Response, Compensation, and Liability information collection requests (ICRs) to submissions under the Consent Decree. Act (CERCLA), 42 U.S.C. 9607, that the Office of Management and Budget The Department of Justice will South Jersey Clothing Company, Inc., is (OMB) for review and approval in receive, for a period of thirty (30) days liable for the costs in responding to the accordance with the Paperwork from the date of this publication, release or threatened release of Reduction Act of 1995 (Pub. L. 104–13, comments relating to the proposed hazardous substances at the South 44 U.S.C. Chapter 35). A copy of each Amendment to Consent Decree. Jersey Clothing Company/Garden State individual ICR, with applicable Comments should be addressed to the Cleaners Superfund Sites in Minotola, supporting documentation, may be Assistant Attorney General, New Jersey (the Sites). Under the terms obtained by calling the Department of Environment and Natural Resources of the proposed consent decree, the Labor. To obtain documentation contact Division, PO Box 7611, U.S. Department United States and the State of New Darrin King at (202) 693–4129 or E-Mail of Justice, Washington, DC 20044–7611. Jersey will be paid $4,285,102.00 as to [email protected]. Each communication should refer on its reimbursement for past and future Comments should be sent to Office of face to United States v. Scovill, Inc., DOJ response costs with respect to the Sites. Information and Regulatory Affairs, #90–11–3–859. The Department of Justice will receive Attn: OMB Desk Officer for OSHA, The proposed Amendment to Consent for a period of thirty (30) days from the Office of Management and Budget, Decree may be examined at the Office of date of this publication comments Room 10235, Washington, DC 20503 the United States Attorney, Eastern relating to the proposed partial consent (202–395–7316), within 30 days from District of Virginia, 2100 Jamieson decree. Comments should be addressed the date of this publication in the Avenue, Alexandria, Virginia 22314; to the Assistant Attorney General of the Federal Register. Environment and Natural Resources and at U.S. Environmental Protection The OMB is particularly interested in Division, Department of Justice, Agency, Region III Office, 1650 Arch comments which: Street, Philadelphia, Pennsylvania Washington, DC 20530. * Evaluate whether the proposed 19103–2029. A copy of the proposed The proposed consent decree may be collection of information is necessary Amendment to Consent Decree may be examined at the Office of the United for the proper performance of the obtained by (1) mail from the Consent States Attorney, District of New Jersey, functions of the agency, including Decree Library, PO Box 7611, U.S. U.S. Courthouse, One John F. Gerry whether the information will have Department of Justice, Washington, DC Plaza, Camden, New Jersey, and at U.S. practical utility; 20044–7611; or by (2) faxing the request Environmental Protection Agency to Tonia Fleetwood, U.S. Department of Region II, 290 Broadway, New York, * Evaluate the accuracy of the Justice, fax number (202) 616–6584; New York. A copy of the proposed agency’s estimate of the burden of the phone confirmation (202) 514–1547. In consent decree may also be obtained by proposed collection of information, requesting a copy, please forward the mail from the Consent Decree Library, including the validity of the request and a check in the amount of PO Box 7611, U.S. Department of methodology and assumptions used; $2.00 (25 cents per page reproduction Justice, Washington, DC 20044–7611, or * Enhance the quality, utility, and cost), made payable to the U.S. by faxing a request to Tonia Fleetwood, clarity of the information to be Treasury. fax no. (202) 514–0097, phone collected; and confirmation number (202) 514–1547. If * Minimize the burden of the Robert Brook, requesting a copy of the proposed collection of information on those who Assistant Section Chief, Environmental consent decree (without appendices), are to respond, including through the Enforcement Section, Environment and please so note and enclose a check in use of appropriate automated, Natural Resources Division. the amount of $11.00 (25 cent per page electronic, mechanical, or other [FR Doc. 02–16781 Filed 7–3–02; 8:45 am] reproduction cost) payable to the U.S. technological collection techniques or BILLING CODE 4410–15–M Treasury. other forms of information technology, e.g., permitting electronic submission of Ronald Gluck, responses. DEPARTMENT OF JUSTICE Assistant Chief, Environmental Enforcement Section, Environment and Natural Resources Agency: Occupational Safety and Notice of Lodging of Consent Decree Division. Health Administration (OSHA). Pursuant to Comprehensive [FR Doc. 02–16780 Filed 7–3–02; 8:45 am] Type of Review: Extension of a Environmental Response, BILLING CODE 4410–15–M currently approved collection. Compensation, and Liability Act Title: Slings—29 CFR 1910.184. Notice is hereby given that on June OMB Number: 1218–0223. 21, 2002, a proposed consent decree in DEPARTMENT OF LABOR Affected Public: Business or other for- United States v. South Jersey Clothing profit; Not-for-profit institutions; Office of the Secretary Company, Inc. Civil Action No. 96–3166 Federal Government; and State, Local or Tribal Government. (JBS), was lodged with the United States Submission for OMB Review; Frequency: On occasion and District Court for the District of New Comment Request Jersey. Annually. In this action, the United States June 25, 2002. Type of Response: Recordkeeping and alleged under section 107 of the The Department of Labor (DOL) has Third-party disclosure. Comprehensive Environmental submitted the following public Number of Respondents: 65,000.
Annual Average response Annual burden Requirement responses time (hours) hours
Alloy Steel Chain Slings—1910.184(e): Permanently affixed durable identification—1910.184(e)(1) ...... 98 0.50 49 Periodic inspection—1910.184(e)(3)(i) ...... 68,250 0.25 17,063
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Annual Average response Annual burden Requirement responses time (hours) hours
Cetificate of proof testing—1910.184(e)(4) ...... 24,375 0.05 1,219 Wire Rope Slings—1910.184(f) ...... 48,750 0.05 2,438 Metal Mesh Slings—1910.184(g): Permanently affixed durable marking—1910.184(g)(1) ...... 13 0.50 7 Written records for repaired slings—1910.184(g)(8)(ii) ...... 1,300 0.05 65 Synthetic Web Slings—1910.184(i): Marked or coded for rated capacities—1910.184(i)(1) ...... 52 0.50 26 Certificate of proof testings—1910.184(i)(8)ii) ...... 13,000 0.05 650
Grand Totals: ...... 155,838 ...... 21,517
Total Annualized Capital/Startup Paragraph (g) of the Standard covers Type of Review: Extension of a Costs: $0. metal mesh slings. Paragraph (g)(1) currently approved collection. Total Annual Costs (operating/ requires each metal mesh sling to have Title: Standard on Manlifts—29 CFR maintaining systems or purchasing a durable marking permanently affixed 1910.68(e)(3). services): $0. that states the rated capacity for vertical OMB Number: 1218–0226. Description: The Standard specifies basket hitch and choker hitch loadings. Affected Public: Business or other for- several collection-of-information Paragraph (g)(8)(ii) requires that once profit; Not-for-profit institutions; (paperwork) requirements, depending repaired, each metal mesh sling be Federal Government; and State, Local or on the type of sling. The purpose of permanently marked or tagged, or a Tribal Government. each of these requirements is to prevent written record maintained to indicate Frequency: Monthly. employees from using defective or the date and nature of the repairs and Type of Response: Recordkeeping and deteriorated slings, thereby reducing the person or organization that Third-party disclosure. their risk of death or serious injury performed the repairs. Records of the Number of Respondents: 3,000. Number of Annual Responses: 36,000. caused by sling failure during material repairs shall be made available for Annual Burden Hours: 41,400. examination. handling. Total Annualized Capital/Startup Paragraph (e) of the Standard covers Paragraph (i) of the Standard covers Costs: $0. alloy steel chain slings. Paragraph (e)(1) synthetic web slings. Paragraph (i)(1) Total Annual Costs (operating/ requires that alloy steel chain slings requires that synthetic web slings be maintaining systems or purchasing have permanently affixed durable marked or coded to show the rated services): $0. identification stating size, grade, rated capacities for each type of hitch and Description: 29 CFR 1910.68(e) capacity, and reach. The information, type of synthetic web material. requires that each manlift be inspected supplied by the manufacturers, is Paragraph (i)(8)(i) prohibits the use of at least once every 30 days. Paragraph typically marked on a metal tag and repaired synthetic web slings until they (e)(3) requires a certification record of affixed to the sling. have been proof tested by the the inspection must be made upon Paragraph (e)(3)(i) requires the manufacturer or equivalent entity. completion of the inspection. The employer to make a thorough periodic Paragraph (i)(8)(ii) requires the record must contain the date of the inspection of alloy steel chain slings in employer to retain a certificate of the inspection, the signature of the person use on a regular basis, but at least once proof test and make it available for who performed the inspection, and the a year. Paragraph (e)(3)(ii) requires the examination. serial number or other identifier of the employer to make and maintain a record The information on the identification inspected manlift. Employers are to of the most recent month in which each tags, markings or codings assist the maintain the certification record and alloy steel chain sling was thoroughly employer in determining whether the make them available to OSHA inspected, and make this record sling can be used for the lifting task. The compliance officers. This record available for examination. sling inspections enable early detection provides assurance to employers, Paragraph (e)(4) requires the employer of faulty slings. The inspection and employees, and compliance officers that to retain certificates of proof testing. repair records provide employers with manlifts were inspected as required by Employers must ensure that before use, information about when the last the Standard. The inspections are made each new, repaired, or reconditioned inspection was made and about the to keep equipment in safe operating alloy steel chain sling, including all nature of the repairs made. This condition, thereby preventing manlift welded components in the sling information provides some assurance failure while carrying employees to assembly, has been proof tested by the about the condition of the slings. These elevated worksites. These records also sling manufacturer, or an equivalent records also provide the most efficient provide the most efficient means for the entity. The certificates of proof testing means for an OSHA compliance officer compliance officers to determine that an must be retained and made available for to determine that an employer is employer is complying with the examination. complying with the Standard. Proof- Standard. Paragraph (f) of the Standard covers testing certificates give employers, Agency: Occupational Safety and wire rope slings. Paragraph (f)(4)(ii) employees, and OSHA compliance health Administration (ISHA). requires that all welded end officers assurance that slings are safe to Type of Review: Revision of a attachments of wire rope slings be proof use. The certificates also provide the currently approved collection. tested by the manufacturer at twice their compliance officers with an efficient Title: Consultation Agreements. rated capacity prior to initial use, and means to assess employer compliance OMB Number: 1218–0110. that the employer retain a certificate of with the Standard. Affected Public: Business or other for- the proof test and make it available for Agency: Occupational Safety and profit; Federal Government; and State, examination. Health Administration (OSHA). Local or Tribal Government.
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Frequency: On occasion, Quarterly, Type of Response: Recordkeeping, Number of Respondents: 27,000. biennially, and Annually. Reporting, and Third-party disclosure.
Average response Annual burden Requirement Annual responses time (hours) hours
Burden Hours for State Consultation Projects: Safety and health Program Assessment Worksheet—1908.6(e)(3): Comprehensive Assistance ...... 2,700 0.50 1,350 Safety and health Achievement Recognition Program (SHARP) ...... 400 0.50 200 Inspection Deferral ...... 200 0.50 100 Other visits ...... 23,700 0.17 3,950 Referrals for Enforcement—1908.6(f)(1) and (4) ...... 10 0.050 5 List of Serious Hazardous and Correction Due Dates—1908.6(g) ...... 27,000 0.08 2,250 Compile and Transmit Statical Information—1908.9(c) ...... 1,680 0.50 840 Prepare and Submit Cooperative Agreement—1908.10(c) ...... 48 40.00 1,920
Sub-total ...... 55,738 ...... 10,615
Burden Hours for employers: Notifying the consultation project manager in writing when serious hazardous are correct—1908.6 ...... 27,000 0.25 6,750 Informing OSHA or State Compliance Officer that a Consultation Visit is in Progress—1908.7 ...... 1,350 0.10 135 Post notice of participation in Inspection Deferral and SHARP—1908.7(a)(4) 600 0.05 30
Sub-Total: ...... 28,950 ...... 6,915
Grant Total: ...... 84,688 ...... 17,530
Total Annualized Capital/Startup specify the basic hourly wage rates and determinations frequently and in large cost: $0. fringe benefits which are determined to volume causes procedures to be Total Annual Cost (Operating/ be prevailing for the described classes of impractical and contrary to the public Maintaining System or Purchasing laborers and mechanics employed on interest. System or Purchasing Services): $0. construction projects of a similar General wage determination Description: 29 CFR 1908 requires character and in the localities specified decisions, and modifications and occupatiuonal safety and health therein. supersedes decisions thereto, contain no consultation programs to collect, The determinations in these decisions expiration date and are effective from disclose, and report certain information. of prevailing rates and fringe benefits their date of notice in the Federal The purpose of these regulations is to have been made in accordance with 29 Register, or on the date written notice establish and support cooperative CFR part 1, by authority of the Secretary is received by the agency, whichever is agreements under which employers of Labor pursuant to the provisions of earlier. These decisions are to be used subject to the Occupational Safety and the Davis-Bacon Act of March 3, 1931, in accordance with the provisions of 29 health Act of 1970 (and amendments) as amended (46 Stat. 1494, as amended, CFR parts 1 and 5. Accordingly, the may consult with State personnel with 40 U.S.C. 276a) and of other Federal applicable decision, together with any respect to Occupational Safety and statutes referred to in 29 CFR part 1, modifications issued, must be made a health Regulations as well as other Appendix, as well as such additional part of every contract for performance of voluntary compliance efforts. statutes as may from time to time be the described work within the enacted containing provisions for the geographic area indicated as required by Ira L. Mills, payment of wages determined to be an applicable Federal prevailing wage Departmental Clearance Officer. prevailing by the Secretary of Labor in law and 29 CFR part 5. The wage rates [FR Doc. 02–16807 Filed 7–3–02; 8:45 am] accordance with the Davis-Bacon Act. and fringe benefits, notice of which is BILLING CODE 4510–26–M The prevailing rates and fringe benefits published herein, and which are determined in these decisions shall, in contained in the Government Printing accordance with the provisions of the Office (GPO) document entitled DEPARTMENT OF LABOR foregoing statutes, constitute the ‘‘General Wage Determinations Issued minimum wages payable on Federal and Under The Davis-Bacon And Related Employment Standards Administration federally assisted construction projects Acts,’’ shall be the minimum paid by Wage and Hour Divisions; Minimum to laborers and mechanics of the contractors and subcontractors to Wages for Federal and Federally specified classes engaged on contract laborers and mechanics. Assisted Construction; General Wage work of the character and in the Any person, organization, or Determinations Decisions localities described therein. governmental agency having an interest Good cause is hereby found for not in the rates determined in prevailing is General wage determination decisions utilizing notice and public comment encouraged to submit wage rate and of the Secretary of Labor are issued in procedure thereon prior to the issuance fringe benefit information for accordance with applicable law and are of these determinations as prescribed in consideration by the Department. based on the information obtained by 5 U.S.C. 553 and not providing for delay Further information and self- the Department of Labor from its study in the effective date as prescribed in that explanatory forms for the purpose of of local wage conditions and data made section, because the necessity to issue submitted this data may be obtained by available from other sources. They current construction industry wage writing to the U.S. Department of Labor,
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Employment Standards Administration, VA020078 (Mar. 1, 2002) IL020062 (Mar. 1, 2002) Wage and Hour Division, Division of VA020079 (Mar. 1, 2002) IL020064 (Mar. 1, 2002) Wage Determinations, 200 Constitution VA020092 (Mar. 1, 2002) IL020065 (Mar. 1, 2002) Avenue, NW., Room S–3014, VA020099 (Mar. 1, 2002) IL020066 (Mar. 1, 2002) IL020067 (Mar. 1, 2002) Volume III Washington, DC 20210. IL020068 (Mar. 1, 2002) Modification to General Wage Alabama IL020069 (Mar. 1, 2002) AL020008 (Mar. 1, 2002) Determination Decisions IL020070 (Mar. 1, 2002) Florida Indiana The number of the decisions listed to FL020001 (Mar. 1, 2002) IN020001 (Mar. 1, 2002) the Government Printing Office FL020009 (Mar. 1, 2002) IN020002 (Mar. 1, 2002) document entitled ‘‘General Wage FL020017 (Mar. 1, 2002) IN020003 (Mar. 1, 2002) Determinations Issued Under the Davis- FL020032 (Mar. 1, 2002) IN020004 (Mar. 1, 2002) Bacon and Related Acts,’’ being Kentucky IN020005 (Mar. 1, 2002) modified are listed by Volume and IN020006 (Mar. 1, 2002) KY020001 (Mar. 1, 2002) IN020007 (Mar. 1, 2002) State. Dates of publication in the KY020002 (Mar. 1, 2002) IN020008 (Mar. 1, 2002) Federal Register are in parentheses KY020003 (Mar. 1, 2002) IN020009 (Mar. 1, 2002) following the decisions being modified. KY020004 (Mar. 1, 2002) IN020011 (Mar. 1, 2002) KY020006 (Mar. 1, 2002) Volume I IN020014 (Mar. 1, 2002) KY020007 (Mar. 1, 2002) IN020017 (Mar. 1, 2002) Connecticut KY020025 (Mar. 1, 2002) IN020018 (Mar. 1, 2002) CT020001 (Mar. 1, 2002) KY020027 (Mar. 1, 2002) IN020019 (Mar. 1, 2002) CT020003 (Mar. 1, 2002) KY020028 (Mar. 1, 2002) IN020020 (Mar. 1, 2002) CT020004 (Mar. 1, 2002) KY020029 (Mar. 1, 2002) IN020021 (Mar. 1, 2002) Massachusetts KY020032 (Mar. 1, 2002) Ohio MA020001 (Mar. 1, 2002) KY020035 (Mar. 1, 2002) OH020001 (Mar. 1, 2002) MA020002 (Mar. 1, 2002) KY020044 (Mar. 1, 2002) OH020002 (Mar. 1, 2002) MA020003 (Mar. 1, 2002) Volume IV OH020003 (Mar. 1, 2002) MA020008 (Mar. 1, 2002) OH020006 (Mar. 1, 2002) Illinois MA020010 (Mar. 1, 2002) OH020008 (Mar. 1, 2002) IL020001 (Mar. 1, 2002) MA020019 (Mar. 1, 2002) OH020009 (Mar. 1, 2002) IL020002 (Mar. 1, 2002) MA020020 (Mar. 1, 2002) OH020012 (Mar. 1, 2002) IL020003 (Mar. 1, 2002) MA020021 (Mar. 1, 2002) OH020013 (Mar. 1, 2002) IL020004 (Mar. 1, 2002) Maine OH020018 (Mar. 1, 2002) IL020005 (Mar. 1, 2002) ME020001 (Mar. 1, 2002) OH020020 (Mar. 1, 2002) ME020002 (Mar. 1, 2002) IL020006 (Mar. 1, 2002) OH020022 (Mar. 1, 2002) New Hampshire IL020007 (Mar. 1, 2002) OH020023 (Mar. 1, 2002) NH020001 (Mar. 1, 2002) IL020008 (Mar. 1, 2002) OH020026 (Mar. 1, 2002) NH020005 (Mar. 1, 2002) IL020009 (Mar. 1, 2002) OH020027 (Mar. 1, 2002) NH020007 (Mar. 1, 2002) IL020010 (Mar. 1, 2002) OH020028 (Mar. 1, 2002) New Jersey IL020011 (Mar. 1, 2002) OH020029 (Mar. 1, 2002) NJ020001 (Mar. 1, 2002) IL020016 (Mar. 1, 2002) OH020032 (Mar. 1, 2002) NJ020002 (Mar. 1, 2002) IL020021 (Mar. 1, 2002) OH020033 (Mar. 1, 2002) NJ020003 (Mar. 1, 2002) IL020022 (Mar. 1, 2002) OH020034 (Mar. 1, 2002) NJ020004 (Mar. 1, 2002) IL020023 (Mar. 1, 2002) NJ020005 (Mar. 1, 2002) IL020024 (Mar. 1, 2002) OH020035 (Mar. 1, 2002) NJ020007 (Mar. 1, 2002) IL020027 (Mar. 1, 2002) OH020036 (Mar. 1, 2002) NJ020009 (Mar. 1, 2002) IL020028 (Mar. 1, 2002) OH020037 (Mar. 1, 2002) IL020029 (Mar. 1, 2002) OH020038 (Mar. 1, 2002) Volume II IL020030 (Mar. 1, 2002) Wisconsin District of Columbia IL020031 (Mar. 1, 2002) WI020001 (Mar. 1, 2002) D1020001 (Mar. 1, 2002) IL020032 (Mar. 1, 2002) WI020002 (Mar. 1, 2002) DC020003 (Mar. 1, 2002) IL020033 (Mar. 1, 2002) WI020003 (Mar. 1, 2002) Delaware IL020034 (Mar. 1, 2002) WI020004 (Mar. 1, 2002) DE020001 (Mar. 1, 2002) IL020035 (Mar. 1, 2002) WI020005 (Mar. 1, 2002) DE020002 (Mar. 1, 2002) IL020036 (Mar. 1, 2002) WI020006 (Mar. 1, 2002) DE020004 (Mar. 1, 2002) IL020037 (Mar. 1, 2002) WI020007 (Mar. 1, 2002) DE020005 (Mar. 1, 2002) IL020038 (Mar. 1, 2002) WI020008 (Mar. 1, 2002) DE020009 (Mar. 1, 2002) IL020039 (Mar. 1, 2002) WI020009 (Mar. 1, 2002) Maryland IL020042 (Mar. 1, 2002) WI020010 (Mar. 1, 2002) MD020001 (Mar. 1, 2002) IL020043 (Mar. 1, 2002) WI020011 (Mar. 1, 2002) MD020008 (Mar. 1, 2002) IL020044 (Mar. 1, 2002) WI020013 (Mar. 1, 2002) MD020021 (Mar. 1, 2002) IL020045 (Mar. 1, 2002) WI020016 (Mar. 1, 2002) MD020034 (Mar. 1, 2002) IL020046 (Mar. 1, 2002) WI020017 (Mar. 1, 2002) MD020036 (Mar. 1, 2002) IL020049 (Mar. 1, 2002) WI020019 (Mar. 1, 2002) MD020037 (Mar. 1, 2002) IL020050 (Mar. 1, 2002) WI020020 (Mar. 1, 2002) MD020042 (Mar. 1, 2002) IL020051 (Mar. 1, 2002) WI020021 (Mar. 1, 2002) MD020046 (Mar. 1, 2002) IL020052 (Mar. 1, 2002) WI020022 (Mar. 1, 2002) MD020048 (Mar. 1, 2002) IL020053 (Mar. 1, 2002) WI020025 (Mar. 1, 2002) MD020056 (Mar. 1, 2002) IL020054 (Mar. 1, 2002) WI020029 (Mar. 1, 2002) MD020057 (Mar. 1, 2002) IL020055 (Mar. 1, 2002) WI020030 (Mar. 1, 2002) MD020058 (Mar. 1, 2002) IL020056 (Mar. 1, 2002) WI020032 (Mar. 1, 2002) Virginia IL020057 (Mar. 1, 2002) WI020033 (Mar. 1, 2002) VA020014 (Mar. 1, 2002) IL020059 (Mar. 1, 2002) WI020046 (Mar. 1, 2002) VA020025 (Mar. 1, 2002) IL020060 (Mar. 1, 2002) WI020047 (Mar. 1, 2002) VA020052 (Mar. 1, 2002) IL020061 (Mar. 1, 2002) WI020048 (Mar. 1, 2002)
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WI020049 (Mar. 1, 2002) ND020019 (Mar. 1, 2002) decisions issued during the year, WI020050 (Mar. 1, 2002) Oregon extensive Help desk Support, etc. OR020001 (Mar. 1, 2002) Hard-copy subscriptions may be Volume V OR020004 (Mar. 1, 2002) Missouri OR020007 (Mar. 1, 2002) purchased from: Superintendent of MO020001 (Mar. 1, 2002) OR020017 (Mar. 1, 2002) Documents, U.S. Government Printing MO020002 (Mar. 1, 2002) Washington Office, Washington, DC 20402, (202) MO020003 (Mar. 1, 2002) WA020001 (Mar. 1, 2002) 512–1800. MO020004 (Mar. 1, 2002) WA020002 (Mar. 1, 2002) When ordering hard-copy MO020005 (Mar. 1, 2002) WA020003 (Mar. 1, 2002) subscription(s), be sure to specify the MO020006 (Mar. 1, 2002) WA020005 (Mar. 1, 2002) State(s) of interest, since subscriptions MO020007 (Mar. 1, 2002) WA020007 (Mar. 1, 2002) may be ordered for any or all of the six MO020008 (Mar. 1, 2002) WA020007 (Mar. 1, 2002) MO020009 (Mar. 1, 2002) WA020008 (Mar. 1, 2002) separate Volumes, arranged by State. MO020014 (Mar. 1, 2002) WA020011 (Mar. 1, 2002) Subscriptions include an annual edition MO020016 (Mar. 1, 2002) WA020013 (Mar. 1, 2002) (issued in January or February) which MO020018 (Mar. 1, 2002) WA020023 (Mar. 1, 2002) includes all current general wage MO020019 (Mar. 1, 2002) WA020026 (Mar. 1, 2002) determinations for the States covered by MO020039 (Mar. 1, 2002) Volume VII each volume. Throughout the remainder MO020041 (Mar. 1, 2002) of the year, regular weekly updates will MO020042 (Mar. 1, 2002) California be distributed to subscribers. MO020043 (Mar. 1, 2002) CA020001 (Mar. 1, 2002) MO020046 (Mar. 1, 2002) CA020002 (Mar. 1, 2002) Signed at Washington, DC this 27th day of MO020047 (Mar. 1, 2002) CA020004 (Mar. 1, 2002) June, 2002. MO020050 (Mar. 1, 2002) CA020009 (Mar. 1, 2002) Carl J. Poleskey, MO020051 (Mar. 1, 2002) CA020013 (Mar. 1, 2002) Chief, Branch of Construction Wage MO020052 (Mar. 1, 2002) CA010019 (Mar. 1, 2002) Determinations. MO020053 (Mar. 1, 2002) CA020023 (Mar. 1, 2002) [FR Doc. 02–16729 Filed 7–3–02; 8:45 am] MO020054 (Mar. 1, 2002) CA020025 (Mar. 1, 2002) MO020055 (Mar. 1, 2002) CA020027 (Mar. 1, 2002) BILLING CODE 4510–27–M MO020056 (Mar. 1, 2002) CA020028 (Mar. 1, 2002) MO020057 (Mar. 1, 2002) CA020029 (Mar. 1, 2002) MO020059 (Mar. 1, 2002) CA020030 (Mar. 1, 2002) MO020061 (Mar. 1, 2002) CA010031 (Mar. 1, 2002) NATIONAL AERONAUTICS AND New Mexico CA020032 (Mar. 1, 2002) SPACE ADMINISTRATION NM020001 (Mar. 1, 2002) CA020033 (Mar. 1, 2002) Texas CA020035 (Mar. 1, 2002) TX020007 (Mar. 1, 2002) CA010036 (Mar. 1, 2002) [Notice (02–079)] TX020010 (Mar. 1, 2002) CA020037 (Mar. 1, 2002) TX020085 (Mar. 1, 2002) Hawaii NASA Advisory Council, Biological HI020001 (Mar. 1, 2002) and Physical Research Committee, Volume VI Physical Science Advisory Alaska General Wage Determination Subcommittee (SSUAS); Meeting AK020001 (Mar. 1, 2002) Publication AK020002 (Mar. 1, 2002) AGENCY: National Aeronautics and AK020003 (Mar. 1, 2002) General wage determinations issued Space Administration. AK020005 (Mar. 1, 2002) under the Davis-Bacon and related Acts, AK020006 (Mar. 1, 2002) including those noted above, may be ACTION: Notice of meeting location AK020008 (Mar. 1, 2002) found in the Government Printing Office change. Colorado (GPO) document entitled ‘‘General Wage SUMMARY: In accordance with the CO020001 (Mar. 1, 2002) Determinations Issued Under the Davis- Federal Advisory Committee, Act, CO020002 (Mar. 1, 2002) Bacon And Related Acts’’. This Public Law 92–463, as amended, the CO020003 (Mar. 1, 2002) publication is available at each of the 50 CO020004 (Mar. 1, 2002) National Aeronautics and Space Regional Government Depository CO020005 (Mar. 1, 2002) Administration announces a change of Libraries and many of the 1,400 CO020006 (Mar. 1, 2002) location for the meeting of the NASA Government Depository Libraries across CO020007 (Mar. 1, 2002) Advisory Council, Biological and the country. CO020008 (Mar. 1, 2002) Physical Research Committee, Physical CO020009 (Mar. 1, 2002) General wage determinations issued Science Advisory Subcommittee CO020010 (Mar. 1, 2002) under the Davis-Bacon and related Acts CO020011 (Mar. 1, 2002) (SSUAS); Notice Number 02–077. are available electronically at no cost on CO020012 (Mar. 1, 2002) DATES: July 9, 2002, July 10, 2002, and the Government Printing Office site at CO020013 (Mar. 1, 2002) July 12, 2002, 8 a.m. to 5 p.m. www.access.gpo.gov/davisbacon. They CO020014 (Mar. 1, 2002) Previously Announced Locations: CO020015 (Mar. 1, 2002) are also available electronically by CO020016 (Mar. 1, 2002) subscription to the Davis-Bacon Online Center for Advance Space Studies, 3600 CO020017 (Mar. 1, 2002) Service (http:// Bay Boulevard, Houston, Texas. Idaho davisbacon.fedworld.gov) of the Change in the Meeting: The meeting ID020001 (Mar. 1, 2002) National Technical Information Service will now be held at the Courtyard ID020002 (Mar. 1, 2002) (NTIS) of the U.S. Department of Marriott, 3435 North Atlantic Avenue, North Dakota Cocoa Beach, Florida. ND020001 (Mar. 1, 2002) Commerce at 1–800–363–2068. This ND020004 (Mar. 1, 2002) subscription offers value-added features FOR FURTHER INFORMATION CONTACT: Dr. ND020005 (Mar. 1, 2002) such as electronic delivery of modified Neal Pellis, Code U, Lyndon B. Johnson ND020008 (Mar. 1, 2002) wage decisions directly to the user’s Space Center, Houston, Texas, (281) ND020011 (Mar. 1, 2002) desktop, the ability to access prior wage 483–2357
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Dated: June 28, 2002. waste material had been placed within including the reasons why the requester Sylvia K. Kraemer, two underground silos during previous should be permitted a hearing, with Advisory Committee Management Officer, operations at the facility, which began particular reference to the factors set out National Aeronautics and Space during the late 1940s. These operations in 10 CFR 2.1205(g); Administration. by United States Radium Corporation 3. The requesters areas of concern [FR Doc. 02–16786 Filed 7–3–02; 8:45 am] and later the SLC, involved the about the licensing activity that is the BILLING CODE 7510–01–P manufacturing and distributing of self- subject matter of the proceeding; and illuminating watch and instrument 4. The circumstances establishing that dials, and other uses of a variety of the request for a hearing is timely in NUCLEAR REGULATORY radioactive material until about 1968, accordance with 10 CFR 2.1205(c). COMMISSION when tritium was the only radionuclide In accordance with 10 CFR 2.1205(e), used. each request for a hearing must also be [Docket No. 03–005980] During all waste processing activities, served, by delivering it personally or by the NRC will require the licensee to mail, to: Consideration of Amendment Request maintain effluents and doses within 1. The applicant, Safety Light for Sorting, Characterizing, and NRC requirements, and as low as Corporation, 4150–A Old Berwick Road, Repackaging Waste at the Safety Light reasonably achievable. Prior to Bloomsburg, PA 17815, Attention: Larry Corporation Facility, Bloomsburg, PA, approving the Work Plan and Harmon, Plant Manager; and and Opportunity for a Hearing supporting information, the NRC will 2. The NRC staff, by delivery to the have made findings required by the AGENCY: Nuclear Regulatory Executive Director for Operations, One Atomic Energy Act of 1954, as amended, Commission. White Flint North, 11555 Rockville and NRC’s regulations. Approval of the ACTION: Notice of consideration of Pike, Rockville, MD 20852, or by mail, Work Plan at the SLC Bloomsburg, PA addressed to the Executive Director for amendment request for sorting, facility will be documented in an characterizing, and repackaging waste at Operations, U.S. Nuclear Regulatory amendment to License No. 37–00030– Commission, Washington, DC 20555. the Safety Light Corporation facility, 02. The NRC has coordinated this NRC For further details with respect to this Bloomsburg, Pennsylvania, and licensing action with PADEP and the action, the Work Plan and supporting opportunity for a hearing. United States Environmental Protection information dated February 6, April 25 Agency Region III, which have separate The U.S. Nuclear Regulatory and May 28, 2002 is available for jurisdictions related to this waste Commission is considering issuance of inspection at the NRC’s Public a license amendment to By-Product material and this facility. The NRC hereby provides notice that Document Room, 11555 Rockville Pike, Materials License No. 37–00030–02 this is a proceeding on an application Rockville, MD, and from http:// (License No. 37–00030–02), issued to for amendment of a license falling www.nrc.gov/reading-rm.html. Safety Light Corporation (SLC), to within the scope of Subpart L ‘‘Informal Dated at King of Prussia, Pennsylvania, this authorize the sorting, characterizing, Hearing Procedures for Adjudication in 27th day of June 2002. and repackaging of containerized waste Materials Licensing Proceedings,’’ of For the Nuclear Regulatory Commission. located at the SLC facility in South NRC’s rules and practice for domestic Francis M. Costello, Central Township, about five miles from licensing proceedings in 10 CFR Part 2. Bloomsburg, Pennsylvania. Deputy Director, Division of Nuclear Materials Pursuant to 10 CFR 2.1205(a), any Safety, RI. During 1999 and 2000, the licensee person whose interest may be affected removed waste from two underground [FR Doc. 02–16830 Filed 7–3–02; 8:45 am] by this proceeding may file a request for silos, as part of site remediation of the BILLING CODE 7590–01–P a hearing in accordance with 10 CFR radiological contamination at the SLC 2.1205(c). A request for hearing must be facility, in accordance with the filed withing thirty (30) days of the date NUCLEAR REGULATORY conditions described in License No. 37– of publication of the Federal Register COMMISSION 00030–02. The waste is stored in two Notice. temporary waste storage areas, because The request for the hearing must be Advisory Committee on Nuclear Waste additional sorting and characterization filed with the Office of the Secretary Meeting on Planning and Procedures; of the waste is required. The SLC either: Notice of Meeting facility is located adjacent to the 1. By delivery to the Document Susquehanna River, so these storage Control Desk or may be delivered to the The ACNW will hold a Planning and areas potentially could flood during Commission’s Public Document Room, Procedures meeting on July 23, 2002, severe hurricane-type conditions. On 11555 Rockville Pike, Rockville, MD Room T–2B1, 11545 Rockville Pike, February 6, 2002, the licensee submitted 20852–2738; or Rockville, Maryland. the ‘‘Work Plan for SLC, Bloomsburg, 2. By mail or telegram addressed to The entire meeting will be open to PA, Radioactive Waste Repackaging’’ the Secretary, U.S. Nuclear Regulatory public attendance, with the exception of (Work Plan) for NRC review and Commission, Washington, DC 20555– a portion that may be closed pursuant approval. The radioactive 0001, Attention: Rulemakings & to 5 U.S.C. 552b(c) (2) and (6) to discuss contamination in this waste, based on Adjudications Staff. organizational and personnel matters previous characterization data, consists In addition to meeting other that relate solely to internal personnel primarily of tritium, Sr–90 and Cs–137 applicable requirements of 10 CFR Part rules and practices of ACNW, and that is regulated by NRC, and Ra–226 2 of the NRC’s regulations, a request for information the release of which would that is regulated by the Commonwealth a hearing filed by a person other than constitute a clearly unwarranted of Pennsylvania Department of an applicant must describe in detail: invasion of personal privacy. Environmental (PADEP). There may also 1. The interest of the requester in the The agenda for the subject meeting be some mixed waste (radioactive and proceeding; shall be as follows: hazardous waste) that is dually 2. How that interest may be affected Tuesday, July 23, 2002—8:30 a.m.– regulated by NRC and PADEP. The by the results of the proceeding, 10:30 a.m.
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The Committee will discuss proposed may request a hearing on any incurred in connection with the ACNW activities and related matters. application by writing to the SEC’s liquidation were paid by applicant. The purpose of this meeting is to gather Secretary at the address below and Filing Date: The application was filed information, analyze relevant issues and serving the relevant applicant with a on June 17, 2002. facts, and formulate proposed positions copy of the request, personally or by Applicant’s Address: 500 Grant St., and actions, as appropriate, for mail. Hearing requests should be Suite 2226, Pittsburgh, PA 15219. deliberation by the full Committee. received by the SEC by 5:30 p.m. on July Merrill Lynch Intermediate Oral statements may be presented by 23, 2002, and should be accompanied Government Bond Fund [File No. 811– members of the public with the by proof of service on the applicant, in 4839] concurrence of the Chairman; written the form of an affidavit or, for lawyers, statements will be accepted and made a certificate of service. Hearing requests Summary: Applicant seeks an order available to the Committee. Electronic should state the nature of the writer’s declaring that it has ceased to be an recordings will be permitted only interest, the reason for the request, and investment company. On December 15, during those portions of the meeting the issues contested. Persons who wish 2000, applicant transferred its assets to that are open to the public, and to be notified of a hearing may request Merrill Lynch Short Term U.S. questions may be asked only by notification by writing to the Secretary, Government Fund, Inc., based on net members of the Committee, its SEC, 450 Fifth Street, NW., Washington, asset value. Expenses of $104,087 consultants, and staff. Persons desiring DC 20549–0609. incurred in connection with the reorganization were paid by the to make oral statements should notify FOR FURTHER INFORMATION CONTACT: surviving fund. the Designated Federal Official named Diane L. Titus at (202) 942–0564, SEC, Filing Dates: The application was below five days prior to the meeting, if Division of Investment Management, filed on May 7, 2002, and amended on possible, so that appropriate Office of Investment Company June 18, 2002. arrangements can be made. Regulation, 450 Fifth Street, NW., Further information regarding topics Applicant’s Address: 800 Scudders Washington, DC 20549–0506. to be discussed, the scheduling of Mill Rd., Plainsboro, NJ 08536. Brazos Insurance Funds [File No. 811– sessions open to the public, whether the AmeriSen Funds [File No. 811–10285] meeting has been canceled or 9811] Summary: Applicant seeks an order rescheduled, the Chairman’s ruling on Summary: Applicant seeks an order requests for the opportunity to present declaring that it has ceased to be an declaring that it has ceased to be an investment company. On March 27, oral statements, and the time allotted investment company. On February 28, therefor can be obtained by contacting 2002, applicant made a liquidating 2002, applicant’s shareholders distribution to its shareholders based on the Designated Federal Official, Howard voluntarily redeemed their shares, based J. Larson (telephone: 301/415–6805) net asset value. Applicant incurred no on net asset value. No expenses were expenses in connection with the between 7:30 a.m. and 4:15 p.m. (EDT). incurred in connection with the Persons planning to attend this meeting liquidation. liquidation. Filing Dates: The application was are urged to contact the above named Filing Dates: The application was individual two working days prior to filed on May 30, 2002, and amended on filed on April 5, 2002, and amended on June 18, 2002. the meeting to be advised of any June 26, 2002. changes in schedule that may have Applicant’s Address: 14340 Torrey Applicant’s Address: 5949 Sherry occurred. Chase Blvd., Suite 170, Houston, TX Lane, Suite 1600, Dallas, TX 75225. 77014. Dated: June 27, 2002. Sher Bahadur, Dreyfus Institutional Short Term Merrill Lynch Multi-State Limited Treasury Fund [File No. 811–7097] Associate Director for Technical Support, Maturity Municipal Series Trust [File ACRS/ACNW. Summary: Applicant seeks an order No. 811–4264] [FR Doc. 02–16831 Filed 7–3–02; 8:45 am] declaring that it has ceased to be an Summary: Applicant seeks an order BILLING CODE 7590–01–P investment company. On May 10, 2002, declaring that it has ceased to be an applicant made a liquidating investment company. On April 8, 2002, distribution to its shareholders, based applicant transferred its assets to The SECURITIES AND EXCHANGE on net asset value. Expenses of $5,000 Limited Maturity Portfolio of Merrill COMMISSION incurred in connection with the Lynch Municipal Bond Fund, Inc., liquidation were paid by The Dreyfus [Release No. IC—25643 ] based on net asset value. Expenses of Corporation, applicant’s investment approximately $166,531 incurred in Notice of Applications for adviser. connection with the reorganization were Deregistration Under Section 8(f) of the Filing Date: The application was filed paid by the surviving fund. Investment Company Act of 1940 on June 17, 2002. Filing Date: The application was filed Applicant’s Address: c/o The Dreyfus on June 4, 2002. June 28, 2002. Corporation, 200 Park Ave., New York, Applicant’s Address: 800 Scudders The following is a notice of NY 10166. Mill Rd., Plainsboro, NJ 08536. applications for deregistration under section 8(f) of the Investment Company The Mallard Fund, Inc. [File No. 811– SIFE Trust Fund [File No. 811–987] Act of 1940 for the month of June, 2002. 7861] Summary: Applicant seeks an order A copy of each application may be Summary: Applicant, a closed-end declaring that it has ceased to be an obtained for a fee at the SEC’s Public investment company, seeks an order investment company. On February 25, Reference Branch, 450 Fifth St. NW., declaring that it has ceased to be an 2002, applicant transferred its assets to Washington, DC 20549–0102 (tel. 202– investment company. On March 27, Wells Fargo SIFE Financial Services 942–8090). An order granting each 2002, applicant made a final liquidating Fund, based on net asset value. application will be issued unless the distribution to its shareholders, based Applicant incurred no expenses in SEC orders a hearing. Interested persons on net asset value. Expenses of $5,509 connection with the reorganization.
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Filing Date: The application was filed Filing Dates: The applications were by 5:30 p.m. on July 23, 2002, and on June 6, 2002. filed on April 30, 2002, and amended on should be accompanied by proof of Applicant’s Address: 100 North Wiget May 30, 2002. service on the applicants, in the form of Ln., Walnut Creek, CA 94598. Applicants’ Address: 800 Nicollet an affidavit or, for lawyers, a certificate Mall, Minneapolis, MN 55402. Phillips Capital Investments, Inc. [File of service. Hearing requests should state No. 811–5245] Mercury Target Select Equity Fund, Inc. the nature of the writer’s interest, the [File No. 811–10037] reason for the request, and the issues Summary: Applicant seeks an order contested. Persons who wish to be declaring that it has ceased to be an Summary: Applicant seeks an order notified of a hearing may request investment company. On December 21, declaring that it has ceased to be an notification by writing to the 2001, applicant made a liquidating investment company. On November 26, Commission’s Secretary. distribution to its shareholders based on 2001, applicant made a liquidating ADDRESSES: Secretary, Commission, 450 net asset value. Applicant incurred no distribution to its shareholders based on 5th Street, NW, Washington, DC 20549– expenses in connection with the net asset value. Expenses of $4,500 0609. Applicants, c/o C. Grant liquidation. incurred in connection with the Anderson, Esq., Federated Services Filing Date: The application was filed liquidation were paid by Merrill Lynch Company, Federated Investors Tower, on May 28, 2002. Investment Managers, parent of Applicant’s Address: 18007 Old 1001 Liberty Avenue, Pittsburgh, PA applicant’s sub-adviser. 15222–3779. Preston Court, Dallas, TX 75252. Filing Dates: The application was FOR FURTHER INFORMATION CONTACT: Questar Funds, Inc. [File No. 811–8655] filed on January 30, 2002, and amended on May 30, 2002. Marilyn Mann, Senior Counsel, at (202) Summary: Applicant seeks an order Applicant’s Address: 800 Scudders 942–0582, or Mary Kay Frech, Branch declaring that it has ceased to be an Mill Rd., Plainsboro, NJ 08536. Chief, at (202) 942–0564, (Division of investment company. Applicant Investment Management, Office of For the Commission, by the Division of Investment Company Regulation). consists of three separate series: Investment Management, pursuant to MacroTends Fund, Imperial Financial delegated authority. SUPPLEMENTARY INFORMATION: The Services Fund and Excalibur Fund Jill M. Peterson, following is a summary of the (formerly Phoenix Management Fund). application. The complete application Assistant Secretary. By March 13, 2002, all of applicant’s may be obtained for a fee at the shareholders had redeemed their shares [FR Doc. 02–16846 Filed 7–3–02; 8:45 am] Commission’s Public Reference Branch, based on net asset value. Expenses of BILLING CODE 8010–01–P 450 5th Street, NW, Washington, DC $8,690, $8,650 and $8,812 were 20549–0102 (tel. 202–942–8090). incurred in connection with the SECURITIES AND EXCHANGE Applicants’ Representations liquidation and were paid, respectively, COMMISSION by each series of applicant. 1. The Trust, a Delaware business Filing Date: The application was filed [Investment Company Act Release No. trust, is registered under the Act as an on May 28, 2002. 25642 ; 812–12498] open-end management investment Applicant’s Address: 1500 Forest company. The Trust currently offers Ave., Suite 223, Richmond, VA 23229. Vision Group of Funds, et al.; Notice of eighteen series (‘‘Funds’’), each of Application June 28, 2002. which has its own investment SHARCS Trust I [File No. 811–21025] AGENCY: Securities and Exchange objectives, policies and restrictions. Summary: Applicant, a closed-end Commission (‘‘Commission’’). M&T Asset Management (the investment company, seeks an order ‘‘Adviser’’), a department of M&T, is ACTION: Notice of an application for an declaring that it has ceased to be an registered under the Investment order under section 6(c) of the investment company. Applicant has Advisers Act of 1940 (the ‘‘Advisers Investment Company Act of 1940 (the never made a public offering of its Act’’), and serves as the investment ‘‘Act’’) for an exemption from section securities and does not propose to make adviser to the Funds. M&T is a national 15(a) of the Act and rule 18f–2 under a public offering or engage in business banking association and is wholly the Act. of any kind. owned by M&T Bank Corporation, a Filing Dates: The application was Summary of the Application: The bank holding company. filed on May 16, 2002, and amended on order would permit applicants to enter 2. Applicants also request relief with June 2, 2002. into and materially amend subadvisory respect to any existing or future Applicant’s Address: c/o Salomon agreements without shareholder registered open-end management Smith Barney Inc., 388 Greenwich St., approval. investment company or series thereof New York, NY 10013. Applicants: Vision Group of Funds that (a) is advised by the Adviser or any American Municipal Term Trust Inc. II (the ‘‘Trust’’) and Manufacturers and entity controlling, controlled by or [File No. 811–6356] Traders Trust Company (‘‘M&T’’). under common control with the Filing Dates: The application was Adviser; (b) uses the adviser/subadviser Minnesota Municipal Term Trust Inc. filed on April 4, 2001 and amended on structure that is described in the [File No. 811–6359] June 27, 2002. application; and (c) complies with the Summary: Each applicant seeks an Hearing or Notification of Hearing: An terms and conditions in the application order declaring that it has ceased to be order granting the application will be (together with any current or future an investment company. On April 10, issued unless the Commission orders a series of the Trust, the ‘‘Funds’’). 2002, each applicant made a liquidating hearing. Interested persons may request 3. The Adviser serves as the distribution to its shareholders based on a hearing by writing to the investment adviser to each Fund net asset value. Expenses of $12,810 and Commission’s Secretary and serving the pursuant to an investment advisory $12,621, respectively, were incurred in applicants with a copy of the request, agreement with the Trust (‘‘Advisory connection with the liquidations and personally or by mail. Hearing requests Agreement’’) that was approved by the were paid by each applicant. should be received by the Commission board of trustees of the Trust (the
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‘‘Board’’), including a majority of the matter must approve such matter if the Independent Trustees will be at the trustees who are not ‘‘interested Act requires shareholder approval. discretion of the then-existing persons,’’ as defined in section 2(a)(19) 2. Section 6(c) of the Act provides that Independent Trustees. of the Act (‘‘Independent Trustees’’), the Commission may exempt any 4. The Adviser will not enter into a and the shareholders of each Fund. person, security, or transaction or any Subadvisory Agreement with an Under the terms of the Advisory class or classes of persons, securities, or Affiliated Subadviser without that Agreement, the Adviser manages the transactions from any provision of the agreement, including the compensation investment of assets of each Fund and Act, or from any rule thereunder, to the to be paid under it, being approved by may, subject to oversight by the Board, extent that the exemption is necessary the shareholders of the applicable Fund. hire one or more subadvisers or appropriate in the public interest and 5. When a Subadviser change is (‘‘Subadvisers’’) to provide portfolio consistent with the protection of proposed for a Fund with an Affiliated management services to each of the investors and the purposes fairly Subadviser, the Board, including a Funds pursuant to separate investment intended by the policies and provisions majority of the Independent Trustees, advisory agreements (‘‘Subadvisory of the Act. Applicants state that the will make a separate finding, reflected Agreements’’). Each Subadviser is an requested relief meets this standard for in the Trust’s Board minutes, that the investment adviser registered under the the reasons discussed below. change is in the best interests of the Advisers Act. Subadvisers are 3. Applicants assert that the Funds’ Fund and its shareholders, and does not recommended to the Board by the shareholders rely on the Adviser to involve a conflict of interest from which Adviser and selected and approved by select the Subadvisers best suited to the Adviser or the Affiliated Subadviser the Board, including a majority of the achieve a Fund’s investment objectives. derives an inappropriate advantage. Independent Trustees. Each Applicants assert that, from the 6. Within 90 days of the hiring of a Subadviser’s fees are paid by the perspective of the investor, the role of new Subadviser, the Adviser will Adviser out of the management fees the Subadvisers is comparable to that of furnish shareholders of the affected received by the Adviser from the individual portfolio managers employed Fund with the information about the Subadviser that would be included in a respective Fund.1 by other investment advisory firms. Applicants submit that the requested proxy statement. The information will 4. The Adviser monitors the Funds relief will reduce the Funds’ expenses include any changes caused by the and the Subadvisers and makes associated with shareholder meetings addition of the new Subadviser. The recommendations to the Board and proxy solicitations, and enable the Adviser will meet this condition by regarding allocation, and reallocation, of Funds to operate more efficiently. providing shareholders of the applicable assets between Subadvisers and is Applicants also note that the Advisory Fund with an information statement responsible for recommending the Agreement will remain subject to meeting the requirements of Regulation hiring, termination and replacement of section 15(a) of the Act and rule 18f–2 14C, Schedule 14C, and Item 22 of Subadvisers. The Adviser recommends under the Act. Schedule 14A under the Securities Subadvisers based on a number of Exchange Act of 1934. factors used to evaluate their skills in Applicants’ Conditions 7. The Adviser will provide general managing assets pursuant to particular Applicants agree that the order management services to the Funds investment objectives. granting the requested relief will be including overall supervisory 5. Applicants request relief to permit subject to the following conditions: responsibility for the general the Adviser, subject to the Board’s 1. Before a Fund may rely on the management and investment of each approval, to enter into and materially requested order, the operation of the Fund’s securities portfolio and, subject amend Subadvisory Agreements Fund, as described in the application, to review and approval by the Board, without shareholder approval. The will be approved by the vote of a will (a) set each Fund’s overall requested relief would not extend to any majority of the Fund’s outstanding investment strategies; (b) evaluate, Subadviser that is an affiliated person, voting securities, as defined in the Act, select, and recommend Subadvisers to as defined in section 2(a)(3) of the Act, or in the case of a Fund whose public manage all or a part of a Fund’s assets; of the Trust or the Adviser, other than shareholders purchased shares on the (c) when appropriate, allocate and by reason of serving as a Subadviser to basis of a prospectus containing the reallocate the Fund’s assets among one or more of the Funds (an ‘‘Affiliated disclosure contemplated by condition 2 multiple Subadvisers; (d) monitor and Subadviser’’). below, by the initial shareholders before evaluate the performance of the Subadvisers; and (e) implement Applicants’ Legal Analysis offering shares of that Fund to the public. procedures reasonably designed to 1. Section 15(a) of the Act provides, 2. Each Fund relying on the requested ensure that the Subadvisers comply in relevant part, that it is unlawful for relief will disclose in its prospectus the with the Fund’s investment objectives, any person to act as an investment existence, substance, and effect of any restrictions and policies. adviser to a registered investment order granted pursuant to the 8. No trustee or officer of the Trust or company except pursuant to a written application. In addition, each Fund will director or officer of the Adviser will contract that has been approved by the hold itself out to the public as own, directly or indirectly (other than vote of the company’s outstanding employing the management structure through a pooled investment vehicle voting securities. Rule 18f–2 under the described in the application. The that is not controlled by any such act provides that each series or class of prospectus will prominently disclose director, trustee, or officer), any interest stock in a series company affected by a that the Adviser has ultimate in a Subadviser except for: (a) responsibility, subject to review of the Ownership of interests in the Adviser or 1 The Trust is the only existing investment Board, to monitor and evaluate any entity that controls, is controlled by, company that currently intends to rely on the order. Subadvisers and recommend their or under common control with the Applicants represent that if the name of any Fund hiring, termination and replacement. Adviser, or (b) ownership of less than contains the name of a Subadviser that is not an Affiliated Subadviser as defined below, it will also 3. At all times, a majority of the Board 1% of the outstanding securities of any contain the name of the Adviser, which will appear will be Independent Trustees, and the class of equity or debt securities of any before the name of the Subadviser. nomination of new or additional publicly traded company that is either
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a Subadviser or an entity that controls, to the Plan and reflects several changes The Commission originally approved is controlled by, or is under common unanimously adopted by the the Plan on a pilot basis on June 26, control with a Subadviser. Committee. The Commission is putting 1990.9 The parties did not begin trading For the Commission, by the Division of into effect summarily part of the 13th until July 12, 1993, accordingly, the Investment Management, pursuant to Amendment, granting an exemption pilot period commenced on July 12, delegated authority. under Rule 11Aa3–2(f) 5 from 1993. The Plan has since been in Jill M. Peterson, compliance with Section VI.C.1. of the operation on an extended pilot basis.10 Plan as required by Rule 11Aa3–2(d),6 Assistant Secretary. III. Description and Purpose of the and publishing this notice to solicit [FR Doc. 02–16845 Filed 7–3–02; 8:45 am] Amendment comments from interested persons on BILLING CODE 8010–01–P the 13th Amendment generally. The complete text of the Plan, as amended, is attached as Exhibit A. The II. Background SECURITIES AND EXCHANGE following is a summary of the proposed COMMISSION The Plan governs the collection, changes to the Plan prepared by the consolidation, and dissemination of Participants. Each category of [Release No. 34–46139; File No. S7–24–89] quotation and transaction information amendments listed below will have for Nasdaq/National Market (‘‘Nasdaq/ distinct effectiveness dates as noted by Joint Industry Plan; Notice of Filing NM’’) and Nasdaq SmallCap securities each category title and as discussed in and Partial Summary Effectiveness of listed on Nasdaq or traded on an Section IV below. Amendment No. 13 to the Reporting exchange pursuant to unlisted trading Category 1: Effective Upon Nasdaq’s Plan for Nasdaq-Listed Securities privileges (‘‘UTP’’).7 The Plan provides Traded on Exchanges on an Unlisted Exchange Registration for the collection from Plan Participants, Trading Privilege Basis, Submitted by and the consolidation and 1. Section I.A.8. of the Plan has been the National Association of Securities dissemination to vendors, subscribers added to reflect the addition of The Dealers, Inc., the Boston Stock and others, of quotation and transaction Nasdaq Stock Market, Inc. as a new and Exchange, Inc., the Chicago Stock information in ‘‘eligible securities.’’8 separate signatory to the Plan. Exchange, Inc., the Cincinnati Stock The Plan contains various provisions 2. Section III.B. of the Plan, which Exchange, the Pacific Exchange, the concerning its operation, including: defines ‘‘Eligible Security,’’ is amended American Stock Exchange LLC, and Implementation of the Plan; Manner of to reflect that such securities will be the Philadelphia Stock Exchange, Inc. Collecting, Processing, Sequencing, listed on a national securities exchange and to clarify that Eligible Security Making Available and Disseminating June 28, 2001. under the Plan shall not include any Last Sale Information; Reporting security that is an ‘‘Eligible Security’’ I. Introduction Requirements (including hours of within the Consolidated Tape Pursuant to Rule 11Aa3–2 1 and Rule operation); Standards and Methods of Association Plan. Finally, Section III.B. 11Aa3–1 2 under the Securities Ensuring Promptness, Accuracy and is amended to reflect that securities will Exchange Act of 1934 (‘‘Act’’ or Completeness of Transaction Reports; cease to be Eligible Securities based ‘‘Exchange Act’’), notice is hereby given Terms and Conditions of Access; upon a suspension from trading, and to that on May 31, 2002, the Cincinnati Description of Operation of Facility establish a procedure for determining Stock Exchange Inc. (‘‘CSE’’) on behalf Contemplated by the Plan; Method and of itself and the National Association of Frequency of Processor Evaluation; 9 See Securities Exchange Act Release No. 28146, Securities Dealers, Inc. (‘‘NASD’’), the Written Understandings of Agreements 55 FR 27917 (July 6, 1990) (‘‘1990 Plan Approval American Stock Exchange LLC Relating to Interpretation of, or Order’’). (‘‘Amex’’), the Boston Stock Exchange, Participation in, the Plan; Calculation of 10 See Securities Exchange Act Release Nos. Inc. (‘‘BSE’’), the Chicago Stock the Best Bid and Offer (‘‘BBO’’); Dispute 34371 (July 13, 1994), 59 FR 37103 (July 20, 1994); Exchange, Inc. (‘‘CHX’’), the Pacific 35221 (January 11, 1995), 60 FR 3886 (January 19, Resolution; and Method of 1995); 36102 (August 14, 1995), 60 FR 43626 Exchange, Inc. (‘‘PCX’’), and the Determination and Imposition, and (August 22, 1995); 36226 (September 13, 1995), 60 Philadelphia Stock Exchange, Inc. Amount of Fees and Charges. FR 49029 (September 21, 1995); 36368 (October 13, (‘‘PHLX’’) (hereinafter referred to as 1995), 60 FR 54091 (October 19, 1995); 36481 (November 13, 1995), 60 FR 58119 (November 24, ‘‘Participants’’),3 as members of the 5 17 CFR 240.11Aa3–2(f). 1995) (‘‘November 1995 Extension Order’’); 36589 operating committee (‘‘Operating 6 17 CFR 240.11Aa3–2(d). (December 13, 1995), 60 FR 65696 (December 20, Committee’’ or ‘‘Committee’’) 4 of the 7 Section 12 of the Act generally requires an 1995); 36650 (December 28, 1995), 61 FR 358 Plan submitted to the Securities and exchange to trade only those securities that the (January 4, 1996); 36934 (March 6, 1996), 61 FR Exchange Commission (‘‘SEC’’ or exchange lists, except that Section 12(f) of the Act 10408 (March 13, 1996); 36985 (March 18, 1996), permits UTP under certain circumstances. For 61 FR 12122 (March 25, 1996); 37689 (September ‘‘Commission’’) a proposal to amend the example, Section 12(f) of the Act, among other 16, 1996), 61 FR 50058 (September 24, 1996); 37772 Plan. The proposal represents the 13th things, permits exchanges to trade certain securities (October 1, 1996), 61 FR 52980 (October 9, 1996); amendment (‘‘13th Amendment’’) made that are traded over-the-counter (‘‘OTC/UTP’’), but 38457 (March 31, 1997), 62 FR 16880 (April 8, only pursuant to a Commission order or rule. For 1997); 38794 (June 30, 1997) 62 FR 36586 (July 8, a more complete discussion of the Section 12(f) 1997); 39505 (December 31, 1997) 63 FR 1515 1 17 CFR 240.11Aa3–2. requirement, see November 1995 Extension Order, (January 9, 1998); 40151 (July 1, 1998) 63 FR 36979 2 17 CFR 240.11Aa3–1. infra note . (July 8, 1998); 40896 (December 31, 1998), 64 FR 3 The CSE was elected chair of the Operating 8 Pursuant to the 13th Amendment, the Plan 1834 (January 12, 1999); 41392 (May 12, 1999), 64 Committee for the Joint Self-Regulatory defines ‘‘Eligible Securities’’ as any Nasdaq/NM or FR 27839 (May 21, 1999) (‘‘May 1999 Approval Organization Plan Governing the Collection, Nasdaq SmallCap listed security, as defined in Order’’); 42268 (December 23, 1999), 65 FR 1202 Consolidation and Dissemination of Quotation and Nasdaq Rule 4200: (i) As to which UTP have been (January 6, 2000); 43005 (June 30, 2000), 65 FR Transaction Information for Nasdaq-Listed granted to a national securities exchange pursuant 42411 (July 10, 2000); 44099 (March 23, 2001), 66 Securities Traded on Exchanges on an Unlisted to Section 12(f) of the Act; or (ii) which also is listed FR 17457 (March 30, 2001); 44348 (May 24, 2001), Trading Privilege Basis (‘‘Nasdaq UTP Plan’’ or on a national securities exchange other than 66 FR 29610 (May 31, 2001); 44552 (July 13, 2001), ‘‘Plan’’) by the Participants. Nasdaq. Moreover, the definition states that 66 FR 37712 (July 19, 2001); 44694 (August 14, 4 Among other things, the 13th Amendment shall ‘‘Eligible Securities’’ shall not include any security 2001), 66 FR 43598 (August 20, 2001); 44804 add the Nasdaq Stock Market, Inc. (‘‘Nasdaq’’) as a that is defined as an ‘‘Eligible Security’’ within (September 17, 2001), 66 FR 48299 (September 19, Participant. The Committee is made up of all the Section VII of the Consolidated Tape Association 2001); 45081 (November 19, 2001), 66 FR 59273 Participants. Plan. (November 27, 2001).
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which market may suspend an issue 13. Section XI.D. is amended to of the Internal SIP. However, as stated under the Plan. eliminate reference to individual above in Category 1.7, NQDS will not be 3. Section III.E. of the Plan, which Nasdaq Participants, and also to change fully eliminated as a data feed defines ‘‘Market,’’ is amended to reflect a reference from ‘‘best bid and offer’’ to disseminated by the Processor until that Nasdaq will be participating in the ‘‘national best bid and offer.’’ Nasdaq is registered as an exchange. Plan as an independent national 14. Section XVIII (Operational Issues) 3. Section III.K. of the Plan changes securities exchange and that the NASD is amended to substitute ‘‘Participant’’ the name of the Nasdaq Last Sale will continue to participate as a national for ‘‘Exchange Participant’’ and to Information Service to ‘‘UTP Trade Data securities association. substitute ‘‘Processor’’ for ‘‘Nasdaq.’’ Feed,’’ but makes no changes to the data 4. Section III.G. of the Plan, which 15. The 13th Amendment to the Plan elements contained in that data feed. defines ‘‘NASD Participant,’’ is added to also amends Plan Exhibit 1, which While this change is effective upon reflect that the NASD will participate in governs the distribution of revenue launch of the Internal SIP, the Processor the Plan as a national securities attributable to the sale of market data will continue to disseminate the current association separate and apart from collected pursuant to the Plan. Nasdaq Last Sale Information Service Nasdaq. Specifically, Paragraph 3 of Plan Exhibit for a three-month parallel period to 5. Section III.H. of the Plan, which 1 is amended to reflect the change in enable market data vendors to have a defines ‘‘Transaction Reporting definition of the UTP Quote, UTP Trade, smooth transition to the new feed. System,’’ is amended to reflect that, due and OTC Montage Data Feeds contained 4. Section III.R. of the Plan, which to Nasdaq’s registration as a national in Sections III.I., III.J., and III.N. of the defines ‘‘Quotation Information’’ is securities exchange, the governing Plan. Paragraph 3 of Plan Exhibit 1 is amended to reflect that the NASD ADF Transaction Reporting Plan filed with also amended to change certain aspects will send individual market participant and approved by the Commission of the allocation of Securities information to the Processor. It is also pursuant to SEC Rule 11Aa3–1, shall no Information Processor (‘‘SIP’’ or amended to clarify that only displayed longer be referred to as the NASD ‘‘Processor’’) costs attributable to quotation sizes are included in the Transaction Reporting Plan. The Plan collecting, consolidating, validating, definition and that market center Participants anticipate further amending generating, and disseminating the Data identifiers are also included. this Section of the Plan to clarify the Feeds. Finally, Paragraph 3 is amended 5. Section VI.B. (Collection and status of the Plan under the Exchange to limit the applicability of the Consolidation of Information) has been Act. definition of ‘‘quote engine’’ and ‘‘trade amended to clarify the devices available 6. Section III.I. and III.J, regarding engine’’ to the period when Nasdaq for sending information to the Processor Nasdaq Level 2 and Level 3 Services, serves as the Processor for the Plan. and the data feeds which the Processor will be eliminated when Nasdaq Paragraph 4 of Plan Exhibit 1 is shall disseminate, for as long as Nasdaq registers as a national securities amended to eliminate reference to remains the Processor. While this exchange. computer-to-computer interfaces. change is effective upon launch of the 7. Section III.N. of the Plan, which Internal SIP, the Processor will continue defines ‘‘OTC Montage Data Feed,’’ is Category 2: Effective Upon Launch of to disseminate the current data feeds for amended to reflect that, as a result of the Internal SIP 11 a three-month parallel period to enable Nasdaq’s registration as a national 1. Section III.I. of the Plan, which market data vendors to have a smooth securities exchange, the Processor will defines ‘‘UTP Quote Data Feed,’’ is transition to the new feed. In addition, no longer disseminate the NQDS amended to reflect that the Processor the Processor will continue to Service. will replace the Level 1 Service as it disseminate NQDS until Nasdaq 8. Section III.R. of the Plan, which currently exists. In its place, the registers as an exchange. defines ‘‘Quotation Information’’ is Processor will disseminate a data feed 6. Section VI.C. (Dissemination of amended to reflect that Nasdaq will no containing the National Best Bid and Information) has been amended to longer send individual market Offer quotations, size and market center identify the data feeds that the Processor participant information to the Processor. identifier, as well as the Best Bid and shall disseminate. While this change is It is also amended to clarify that only Offer quotations, size and market center effective upon launch of the Internal displayed quotation sizes are included identifier from each individual SIP, the Processor will continue to in the definition and that market center Participant in Eligible Securities. While disseminate the current data feeds for a identifiers are also included. this change is effective upon launch of three-month parallel period to enable 9. Section VIII.A. (Quotation the Internal SIP, the Processor will market data vendors to have a smooth Information) is amended to reflect that continue to disseminate the current transition to the new feed. In addition, as an exchange, Nasdaq will submit a Level 1 service for a three-month the Processor will continue to Best Bid and Offer in compliance with parallel period (‘‘Legacy SIP’’) to enable disseminate NQDS until Nasdaq the SEC Quote Rule. market data vendors to have a smooth registers as an exchange. 10. Section VIII.C. is amended to transition to the new feed. 7. Section VI.C.1. (Best Bid and Offer) reflect that Nasdaq and the NASD will 2. Section III.N. of the Plan defines is amended to change the method of both be participating in the Plan as the ‘‘OTC Montage Data Feed,’’ which calculating the national best bid and separate and independent entities. will be launched as a new data feed for offer from price/time/size to price/size/ 11. Section IX. (Market Access) is the dissemination of NASD ADF time and to establish a precise amended to reflect that Nasdaq will no Participant quotations with the launch methodology for calculation. longer participate in the Plan as a 8. Section VI.C.3. is renamed national securities association. 11 In November of 2001, Nasdaq began ‘‘Quotation Data Stream,’’ and amended 12. Section X. (Regulatory Halts) is implementing the ‘‘Internal SIP’’ project. The to reflect the change in definition of the amended to reflect that the Listing Internal SIP is a separate technology infrastructure UTP Quote Data Feed contained in Market, rather than the Primary Market, within Nasdaq that will perform the functions of Section III.I. of the Plan. the SIP for Nasdaq-listed securities. When the shall have authority to call a Regulatory Internal SIP is in place, Nasdaq will be able to 9. Section VI.C.4. (Transaction Halt, and a definition of Listing Market separate its functions as a stock market from its Reports) is amended to reflect the is established. functions as a SIP for the Plan. change in name of the UTP Trade Data
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Feed contained in Section III.K. of the 5. Section IV.E. has been added to IV. Date of Effectiveness of the Plan. establish an Advisory Committee and to Proposed Amendment 10. Section XI (Hours of Operation) define its composition and authority. The Commission has determined, has been amended to change the 6. Section V.A. (Selection and pursuant to Rule 11Aa3–2(c)(4) under reporting procedures for Participants Evaluation of the Processor: Generally) the Act,12 that the amendments detailed that execute transactions in Eligible has been amended to eliminate above in Category 2, which generally Securities outside of the normal trading references to events and contingencies cover the creation of new data feeds hours of 9:30 a.m. to 4 p.m. EST. that occurred when the Plan was first associated with the launch of the Category 3: Effective Upon End of adopted. Internal SIP, will be effective summarily Parallel Period—Elimination of the 7. Section VI.C. is amended to upon publication of this notice of Legacy SIP eliminate references to agreements amendment in the Federal Register on between the NASD and certain foreign a temporary basis not to exceed 120 1. Section VI.C.1. is amended to exchanges. days. The Commission believes that it is reflect that the Processor shall no longer appropriate to put into effect summarily carry quotation information from one 8. Section VI.D. (Immediate Hard the Category 2 amendments because trading day to the next, and that the Copy Confirmations) is eliminated and they deal with the creation of data feeds Processor shall not calculate the best bid the remaining subsections of Section VI. associated with the Internal SIP and and offer for any individual Participant, are re-lettered. should remove impediments to, and, including the NASD. 9. Section VIII.B. (Transaction perfect the mechanism of, a national 2. Section VI.C.1. is also amended to Reports) is amended to clarify that this market system. By granting temporary reflect that the Processor shall Section applies only to transactions summary effectiveness, the July 1, 2002 disseminate an internally locked or between Plan Participants pursuant to target launch date for the new Internal crossed quotation submitted by a single the Plan, and to eliminate reference to SIP data feeds may be met. Participant. shared computer-to-computer interfaces. Moreover, the Commission approved Nasdaq’s Order Display Facility, Order 3. Section XVIII.D.3, regarding Price 10. Section X. is amended to include Collector Facility, and Trading Platform Checks, is eliminated to reflect the halts that are called for regulatory (collectively, ‘‘SuperMontage’’),13 Operating Committee’s agreement that problems relating to an Eligible Security contingent upon the NASD offering a the Processor should no longer perform that should be clarified before trading quote and trade reporting alternative these functions. therein is permitted to continue and to thereto, subsequently named the 4. Plan Exhibit 1, Paragraph 3(d)(5) is state that during a halt the Processor Alternative Display Facility (‘‘ADF’’). In eliminated to reflect that MarketWatch shall collect and disseminate addition, the SuperMontage approval costs are no longer eligible Processor Transaction Information but shall cease order required, as a condition for Operating Costs, contingent upon the collection and dissemination of all extension of the Plan, that the elimination of the Processor’s ability to Quotation Information. Participants develop an alternative SIP perform price checks on Participant’s 11. Section XI.C. is amended to reflect for all Nasdaq securities to provide an trade reports. that late trades can be reported between alternative to participation in Category 4: Timing Not An Issue the hours of 8 a.m. and 6:30 p.m. on the SuperMontage.14 same trading day that the transaction The result of these two contingencies 1. Section III.S. of the Plan, which occurred. is that, with concurrent operation of defines ‘‘Regulatory Halt,’’ is amended 12. Section XI.E. governing changes to SuperMontage and the ADF, Nasdaq to include halts that are called for operating hours, is eliminated. and the NASD need to submit distinct regulatory problems relating to an BBOs to the Internal SIP—one Eligible Security that should be clarified 13. Section XIII (Undertakings by representing the SuperMontage before trading therein is permitted to NASD) is eliminated, and subsequent execution facility, and the other continue. sections re-numbered. representing Participants outside of 2. Section IV.A. (Operating 14. Section XXI (Depth of Book SuperMontage. While both Nasdaq and Committee: Composition) has been Display) is added to reflect the the NASD operate under the umbrella of amended to permit entities that are Operating Committee’s determination a single Plan Participant, the submission actively pursuing registration as a that the entity that succeeds Nasdaq as of two distinct BBOs could be deemed national securities exchange to the Processor, upon certain specific inconsistent with Section VI.C.1 of the participate in Operating Committee conditions being met through a further Plan.15 Pursuant to the 13th meetings in limited capacities. Plan amendment should have the ability Amendment of the Plan and Rule 3. Section IV.C. (Operating to collect, consolidate, and disseminate 11Aa3–2(a),16 Nasdaq cannot be granted Committee: Voting) has been amended quotations at multiple price levels Plan Participant status until it is to eliminate references to events and beyond the best bid and best offer from registered as a national securities contingencies that occurred when the any Participant that voluntarily chooses exchange. While Nasdaq submits a Plan was first adopted. It also is to submit such quotations. Section XXI distinct BBO from the NASD and until clarified to reflect the Participants’ states that implementing the depth of agreement that neither the Plan nor the book display functionality will require a 12 17 CFR 240.11Aa3–2(c)(4). Operating Committee shall have plan amendment that addresses all 13 See Securities Exchange Act Release No. 43863 pertinent issues. (January 19, 2001), 66 FR 8020 (January 26, 2001). authority in any respect over any 14 Id. Participant’s proprietary systems. 15. Within the body of the 13th 15 Section VI.C.1. of the Plan, as approved by the 4. Section IV.D. (Operating Amendment, there are numerous Operating Committee in the 13th Amendment, Committee: Meetings) will permit the ‘‘house-keeping’’ corrections, including states that ‘‘[t]he Processor shall disseminate on the UTP Quote Data Feed the best bid and offer Operating Committee to waive the punctuation and renumbering changes. information supplied by each Participant, including advance notice requirement contained These changes are reflected in Exhibit A the NASD * * *.’’ therein. hereto. 16 17 CFR 240.11Aa3–2(a).
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Nasdaq is registered as a national For the Commission, by the Division of collection of Quotation Information and securities exchange, the NASD will Market Regulation, pursuant to delegated Transaction Reports within its market 21 submit quotes to the Internal SIP in a authority. and that nothing in this Plan shall be manner different than specified in Margaret H. McFarland, deemed to govern or apply to the Section VI.C.1. of the Plan. Deputy Secretary. manner in which each Participant does so. To relieve this inherent conflict Exhibit A among the SuperMontage approval Amendment No. 13—Joint Self- III. Definitions 17 18 order, Rule 11Aa3–2, and the Plan, Regulatory Organization Plan Governing A. Current means, with respect to the Commission has determined to grant the Collection, Consolidation and Transaction Reports or Quotation the NASD an exemption under Rule Dissemination of Quotation and Information, such Transaction Reports 11Aa3–2(f)19 from compliance with Transaction Information for Nasdaq- or Quotation Information during the Section VI.C.1. of the Plan as required Listed Securities Traded on Exchanges fifteen (15) minute period immediately by Rule 11Aa3–2(d)20 until such time as of an Unlisted Trading Privilege Basis following the initial transmission Nasdaq is registered as a national The undersigned registered national thereof by the Processor. securities exchange. securities association and national B. Eligible Security means any Nasdaq V. Solicitation of Comments securities exchanges (collectively National Market or Nasdaq SmallCap referred to as the ‘‘Participants’’), have listed security, as defined in Nasdaq The Commission seeks general jointly developed and hereby enter into Rule 4200: (i) As to which unlisted comments on the 13th Amendment. this Nasdaq Unlisted Trading Privileges trading privileges have been granted to Interested persons are invited to submit Plan (‘‘Nasdaq UTP Plan’’ or ‘‘Plan’’). a national securities exchange pursuant to Section 12(f) of the Exchange Act; or written data, views, and arguments I. Participants. concerning the foregoing, including (ii) which also is listed on a national The Participants include the securities exchange other than Nasdaq. whether the proposal is consistent with following: the Act. Persons making written Eligible Securities under this Nasdaq submissions should file six copies A. Participants UTP Plan shall not include any security that is defined as an ‘‘Eligible Security’’ thereof with the Secretary, Securities 1. American Stock Exchange, LLC, 86 within Section VII of the Consolidated and Exchange Commission, 450 Fifth Trinity Place, New York, New York Tape Association Plan. Street, NW, Washington, DC 20549– 10006 A security shall cease to be an Eligible 0609. Copies of the submission, all 2. Boston Stock Exchange, 100 Franklin Security for purposes of this Plan if: (i) subsequent amendments, all written Street, Boston, Massachusetts 02110 3. Chicago Stock Exchange, 440 South The security does not substantially meet statements with respect to the proposed the requirements from time to time in amendment that are filed with the LaSalle Street, Chicago, Illinois 60605 4. Cincinnati Stock Exchange, 440 South effect for continued listing on Nasdaq, Commission, and all written LaSalle Street, 26th Floor, Chicago, and thus is suspended from trading; or communications relating to the proposal Illinois 60605 (ii) the security has been suspended between the Commission and any 5. National Association of Securities, from trading because the issuer thereof person, other than those that may be Dealers, Inc., 1735 K Street, NW, is in liquidation, bankruptcy or other withheld from the public in accordance Washington, DC 20006 similar type proceedings. The with the provisions of 5 U.S.C. 552, will 6. Pacific Exchange, Inc., 301 Pine determination as to whether a security be available for inspection and copying Street, San Francisco, CA 94104 substantially meets the criteria of the in the Commission’s Public Reference 7. Philadelphia Stock Exchange, 1900 definition of Eligible Security shall be Room. The 13th Amendment is being Market Street, Philadelphia, made by the exchange on which such published as Exhibit A to this proposal. Pennsylvania 19103 security is listed provided, however, Copies of the amendment will also be 8. Nasdaq Stock Market, Inc., 1 Liberty that if such security is listed on more available for inspection and copying at Plaza, New York, New York 10006 than one exchange, then such the office of the Secretary of the B. Additional Participants determination shall be made by the Committee, currently located at the CSE, exchange on which the greatest number Any other national securities of the transactions in such security were One Financial Place, 440 South LaSalle association or national securities St., Suite 2600, Chicago, IL 60126. All effected during the previous twelve- exchange, in whose market Eligible month period. submissions should refer to File No S7– Securities become traded, may become 24–89 and be submitted by July 26, C. Commission and SEC shall mean a Participant, provided that said the U.S. Securities and Exchange 2002. organization executes a copy of this Commission. Plan and pays its share of development D. Exchange Act means the Securities costs as specified in Section XIII. Exchange Act of 1934. II. Purpose of Plan E. Market shall mean (i) when used The purpose of this Plan is to provide with respect to Quotation Information, for the collection, consolidation and the NASD in the case of an NASD dissemination of Quotation Information Participant, or the Participant on whose and Transaction Reports in Eligible floor or through whose facilities the Securities from the Participants in a quotation was disseminated; and (ii) manner consistent with the Exchange when used with respect to Transaction 17 See Securities Exchange Act Release No. 43863 Act. Reports, the Participant through whose (January 19, 2001), 66 FR 8020 (January 26, 2001). It is expressly understood that each facilities the transaction took place or is 18 17 CFR 240.11Aa3–2. Participant shall be responsible for the reported, or the Participant to whose 19 17 CFR 240.11Aa3–2(f). facilities the order was sent for 20 17 CFR 240.11Aa3–2(d). 21 17 CFR 200.30–3(a)(27). execution.
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F. NASD means the National participant that entered the quotation, rights of any Participant to seek redress Association of Securities Dealers, Inc. withdrawals and other information from the SEC pursuant to Rule 11Aa3– G. NASD Participant means an NASD pertaining to quotations in Eligible 2 under the Exchange Act or in any member that is registered as a market Securities required to be collected and other appropriate forum. maker or an electronic communications made available to the Processor An Electronic Communications network or otherwise utilizes the pursuant to this Plan. Network, Alternative Trading System, facilities of the NASD pursuant to S. Regulatory Halt means a trade Broker-Dealer or other securities applicable NASD rules. suspension or halt called for the organization (‘‘Organization’’) which is H. Transaction Reporting System purpose of dissemination of material not a Participant, but has an actively means the System provided for in the news, as described at Section X hereof pending Form 1 Application on file Transaction Reporting Plan filed with or that is called for where there are with the Commission to become a and approved by the Commission regulatory problems relating to an national securities exchange, will be pursuant to SEC Rule11Aa3–1, Eligible Security that should be clarified permitted to appoint one representative governing the reporting of transactions before trading therein is permitted to and one alternate representative to in Nasdaq securities. continue. attend regularly scheduled Operating I. UTP Quote Data Feed means the T. Subscriber means a person that Committee meetings in the capacity of service that provides Subscribers with receives Current Quotation Information an observer/advisor. If the the National Best Bid and Offer or Transaction Reports provided by the Organization’s Form 1 petition is quotations, size and market center Processor or provided by a Vendor for withdrawn, returned, or is otherwise not identifier, as well as the Best Bid and its own use or for distribution on a non- actively pending with the Commission Offer quotations, size and market center Current basis, other than in connection for any reason, then the Organization identifier from each individual with its activities as a Vendor. will no longer be eligible to be Participant in Eligible Securities. U. Transaction Reports means reports represented in the Operating Committee J. Nasdaq System means the required to be collected and made meetings. The Operating Committee automated quotation system operated by available pursuant to this Plan shall have the discretion, in limited Nasdaq. containing the stock symbol, price, and instances, to deviate from this policy if, K. UTP Trade Data Feed means the size of the transaction executed, the as indicated by majority vote, the service that provides Vendors and Market in which the transaction was Operating Committee agrees that Subscribers with Transaction Reports. executed, and related information, circumstances so warrant. L. Nasdaq Security or Nasdaq-listed including a buy/sell/cross indicator and Security means any security listed on Nothing in this section or elsewhere trade modifiers, reflecting completed within the Plan shall authorize any the Nasdaq National Market or Nasdaq transactions in Eligible Securities. SmallCap Market. person or organization other than V. Upon Effectiveness of the Plan Participants and their representatives to M. News Service means a person that means July 12, 1993, the date on which receives Transaction Reports or participate on the Operating Committee the Participants commenced publication in any manner other than as an advisor Quotation Information provided by the of Quotation Information and Systems or provided by a Vendor, on a or observer, or in any Executive Session Transaction Reports on Eligible of the Operating Committee. Current basis, in connection with such Securities as contemplated by this Plan. person’s business of furnishing such W. Vendor means a person that B. Operating Committee: Authority information to newspapers, radio and receives Current Quotation Information The Operating Committee shall be television stations and other news or Transaction Reports provided by the responsible for: media, for publication at least fifteen Processor or provided by a Vendor, in (15) minutes following the time when connection with such person’s business 1. Overseeing the consolidation of the information first has been published of distributing, publishing, or otherwise Quotation Information and Transaction by the Processor. furnishing such information on a Reports in Eligible Securities from the N. OTC Montage Data Feed means the Current basis to Subscribers, News Participants for dissemination to data stream of information that provides Services or other Vendors. Vendors, Subscribers, News Services Vendors and Subscribers with and others in accordance with the quotations and sizes from each NASD IV. Administration of Plan provisions of the Plan; Participant. A. Operating Committee: Composition 2. Periodically evaluating the O. Participant means a registered Processor; The Plan shall be administered by the national securities exchange or national 3. Setting the level of fees to be paid securities association that is a signatory Participants through an operating committee (‘‘Operating Committee’’), by Vendors, Subscribers, News Services to this Plan. or others for services relating to P. Plan means this Nasdaq UTP Plan, which shall be composed of one Quotation Information or Transaction as from time to time amended according representative designated by each Reports in Eligible Securities, and to its provisions, governing the Participant. Each Participant may taking action in respect thereto in collection, consolidation and designate an alternate representative or accordance with the provisions of the dissemination of Quotation Information representatives who shall be authorized Plan; and Transaction Reports in Eligible to act on behalf of the Participant in the Securities. absence of the designated 4. Determining matters involving the Q. Processor means the entity selected representative. Within the areas of its interpretation of the provisions of the by the Participants to perform the responsibilities and authority, decisions Plan; processing functions set forth in the made or actions taken by the Operating 5. Determining matters relating to the Plan. Committee, directly or by duly Plan’s provisions for cost allocation and R. Quotation Information means all delegated individuals, committees as revenue-sharing; and bids, offers, displayed quotation sizes, may be established from time to time, or 6. Carrying out such other specific market center identifiers and, in the others, shall be binding upon each responsibilities as provided under the case of NASD, the NASD market Participant, without prejudice to the Plan.
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C. Operating Committee: Voting marketplace or, in the case of the NASD, to vote. The Chairman shall designate a Each Participant shall have one vote from NASD Participants. person to act as Secretary to record the minutes of each meeting. The location on all matters considered by the D. Operating Committee: Meetings of meetings shall be rotated among the Operating Committee. Regular meetings of the Operating 1. The affirmative and unanimous locations of the principal offices of the Committee may be attended by each Participants, or such other locations as vote of all Participants entitled to vote Participant’s designated representative shall be necessary to constitute the may from time to time be determined by and/or its alternate representative(s), the Operating Committee. Meetings may action of the Operating Committee with and may be attended by one or more respect to: be held by conference telephone and other representatives of the parties. action may be taken without a meeting a. Amendments to the Plan; Meetings shall be held at such times and b. Amendments to contracts between if the representatives of all Participants locations as shall from time to time be entitled to vote consent thereto in the Processor and Vendors, Subscribers, determined by the Operating News Services and others receiving writing or other means the Operating Committee. Committee deems acceptable. Quotation Information and Transaction Quorum: Any action requiring a vote Reports in Eligible Securities; only can be taken at a meeting in which A. Advisory Committee c. Replacement of the Processor, a quorum of all Participants is present. 1. Composition except for termination for cause, which For actions requiring a simple majority shall be governed by Section V(B) vote of all Participants, a quorum of a. Each Plan Participant may hereof; greater than 50% of all Participants designate three representatives to d. Reductions in existing fees relating entitled to vote must be present at the participate in the Advisory Committee. to Quotation Information and meeting before such a vote may be The representatives shall each be an Transaction Reports in Eligible taken. For actions requiring a 2/3rd employee of a member of that Securities; and majority vote of all Participants, a Participant, a professor or other e. Except as provided under Section quorum of at least 2/3rd of all academic involved in the scholarly IV(C)(3) hereof, requests for system Participants entitled to vote must be study of the securities industry, or an changes; and present at the meeting before such a expert in one or more areas of the f. All other matters not specifically vote may be taken. For actions requiring securities industry. addressed by the Plan. a unanimous vote of all Participants, a b. Each representative shall serve a 2. With respect to the establishment of quorum of all Participants entitled to one-year term on the Advisory new fees or increases in existing fees vote must be present at the meeting Committee. relating to Quotation Information and before such a vote may be taken. 2. Authority Transaction Reports in Eligible A Participant is considered present at Securities, the affirmative vote of two- a meeting only if a Participant’s The Advisory Committee shall have thirds of the Participants entitled to vote designated representative or alternate the opportunity to: shall be necessary to constitute the representative(s) is either in physical a. Meet twice yearly, each meeting to action of the Operating Committee. attendance at the meeting or is occur one day prior to a meeting of the 3. The affirmative vote of a majority participating by conference telephone, Operating Committee. b. Discuss any matter related to the of the Participants entitled to vote shall or other acceptable electronic means. be necessary to constitute the action of Any action sought to be resolved at a operation of the Plan. the Operating Committee with respect meeting must be sent to each Participant c. Present written comments or to: entitled to vote on such matter at least inquiries to the Operating Committee a. Requests for system changes one week prior to the meeting via regarding matters related to the reasonably related to the function of the electronic mail, regular U.S. or private operation of the Plan. d. Respond to written inquiries from Processor as defined under the Plan. All mail, or facsimile transmission, the Operating Committee seeking other requests for system changes shall provided however that this requirement comment from the Advisory Committee be governed by Section IV(C)(1)(e) may be waived by the vote of the on matters related to the operation of hereof. percentage of the Committee required to the Plan. b. Interpretive matters and decisions vote on any particular matter, under of the Operating Committee arising Section C above. V. Selection and Evaluation of the under, or specifically required to be Any action may be taken without a Processor taken by, the provisions of the Plan as meeting if consent in writing, setting written; forth the action so taken, is sent to and A. Generally c. Interpretive matters arising under signed by all Participant representatives The Processor’s performance of its Exchange Act Rules 11Aa3–1 and entitled to vote with respect to the functions under the Plan shall be 11Acl–1; and subject matter thereof. All the approvals subject to review by the Operating d. Denials of access (other than for evidencing the consent shall be Committee at least every two years, or breach of contract, which shall be delivered to the Chairman of the from time to time upon the request of handled by the Processor), Operating Committee to be filed in the any two Participants but not more 4. It is expressly agreed and Operating Committee records. The frequently than once each year. Based understood that neither this Plan nor action taken shall be effective when the on this review, the Operating Committee the Operating Committee shall have minimum number of Participants may choose to make a recommendation authority in any respect over any entitled to vote have approved the to the Participants with respect to the Participant’s proprietary systems. Nor action, unless the consent specifies a continuing operation of the Processor. shall the Plan or the Operating different effective date. The Operating Committee shall notify Committee have any authority over the The Chairman of the Operating the SEC of any recommendations the collection and dissemination of Committee shall be elected annually by Operating Committee shall make quotation or transaction information in and from among the Participants by a pursuant to the Operating Committee’s Eligible Securities in any Participant’s majority vote of all Participants entitled review of the Processor and shall supply
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the Commission with a copy of any majority vote of the Plan Participants, manner. The Processor shall specifically reports that may be prepared in and shall set forth, at a minimum: be permitted to enter into agreements connection therewith. 1. The entity that will: with Vendors, Subscribers and News a. Draft the Operating Committee’s Services for the dissemination of B. Termination of the Processor for request for proposal for bids on a new quotation or transaction information on Cause processor; Eligible Securities to foreign (non-U.S.) If the Operating Committee b. Assist the Operating Committee in marketplaces or in foreign countries. determines that the Processor has failed evaluating bids for the new processor; The Processor shall, in such instance, to perform its functions in a reasonably and disseminate consolidated quotation or acceptable manner in accordance with c. Otherwise provide assistance and transaction information on Eligible the provisions of the Plan or that its guidance to the Operating Committee in Securities from all Participants. reimbursable expenses have become the selection process. Nothing herein shall be construed so excessive and are not justified on a cost 2. The minimum technical and as to prohibit or restrict in any way the basis, the Processor may be terminated operational requirements to be fulfilled right of any Participant to distribute at such time as may be determined by by the Processor; quotation, transaction or other a majority vote of the Operating 3. The criteria to be considered in information with respect to Eligible Committee. selecting the Processor; and Securities quoted on or traded in its 4. The entities (other than Plan marketplace to a marketplace outside C. Factors To Be Considered in the United States solely for the purpose Termination for Cause Participants) that are eligible to comment on the selection of the of supporting an intermarket linkage, or Among the factors to be considered in Processor. to distribute information within its own evaluating whether the Processor has Nothing in this provision shall be marketplace concerning Eligible performed its functions in a reasonably interpreted as limiting Participants’ Securities in accordance with its own acceptable manner in accordance with rights under Section IV or Section V of format. If a Participant requests, the the provisions of the Plan shall be the the Plan or other Commission order. Processor shall make information about reasonableness of its response to Eligible Securities in the Participant’s requests from Participants for VI. Functions of the Processor marketplace available to a foreign technological changes or enhancements A. Generally marketplace on behalf of the requesting pursuant to Section IV(C)(3) hereof. The Participant, in which event the cost reasonableness of the Processor’s The Processor shall collect from the shall be borne by that Participant. Participants, and consolidate and response to such requests shall be 1. Best Bid and Offer evaluated by the Operating Committee disseminate to Vendors, Subscribers and in terms of the cost to the Processor of News Services, Quotation Information The Processor shall disseminate on purchasing the same service from a and Transaction Reports in Eligible the UTP Quote Data Feed the best bid third party and integrating such service Securities in a manner designed to and offer information supplied by each into the Processor’s existing systems assure the prompt, accurate and reliable Participant, including the NASD, and and operations as well as the extent to collection, processing and shall also calculate and disseminate on which the requested change would dissemination of information with the UTP Quote Data Feed a national best adversely impact the then current respect to all Eligible Securities in a fair bid and asked quotation with size based technical (as opposed to business or and non-discriminatory manner. The upon Quotation Information for Eligible competitive) operations of the Processor shall commence operations Securities received from Participants. Processor. upon the Processor’s notification to the The Processor shall not calculate the Participants that it is ready and able to best bid and offer for any individual D. Processor’s Right To Appeal commence such operations. Participant, including the NASD. Termination for Cause The Participant responsible for each B. Collection and Consolidation of The Processor shall have the right to side of the best bid and asked quotation Information appeal to the SEC a determination of the making up the national best bid and Operating Committee terminating the For as long as Nasdaq is the Processor, offer shall be identified by an Processor for cause and no action shall the Processor shall be capable of appropriate symbol. If the quotations of become final until the SEC has ruled on receiving Quotation Information and more than one Participant shall be the the matter and all legal appeals of right Transaction Reports in Eligible same best price, the largest displayed therefrom have been exhausted. Securities from Participants by the Plan- size among those shall be deemed to be approved, Processor sponsored the best. If the quotations of more than E. Process for Selecting New Processor interface, and shall consolidate and one Participant are the same best price At any time following effectiveness of disseminate such information via the and best displayed size, the earliest the Plan, but no later than upon the UTP Quote Data Feed, the UTP Trade among those measured by the time termination of the Processor, whether Data Feed, and the OTC Montage Data reported shall be deemed to be the best. for cause pursuant to Section IV(C)(1)(c) Feed to Vendors, Subscribers and News A reduction of only bid size and/or ask or V(B) of the Plan or upon the Services. size will not change the time priority of Processor’s resignation, the Operating a Participant’s quote for the purposes of C. Dissemination of Information Committee shall establish procedures determining time reported, whereas an for selecting a new Processor (the The Processor shall disseminate increase of the bid size and/or ask size ‘‘Selection Procedures’’). The Operating consolidated Quotation Information and will result in a new time reported. The Committee, as part of the process of Transaction Reports in Eligible consolidated size shall be the size of the establishing Selection Procedures, may Securities via the UTP Quote Data Feed, Participant that is at the best. solicit and consider the timely comment the UTP Trade Data Feed, and the OTC If the best bid/best offer results in a of any entity affected by the operation Montage Data Feed to authorized locked or crossed quotation, the of this Plan. The Selection Procedures Vendors, Subscribers and News Services Processor shall forward that locked or shall be established by a two-thirds in a fair and non-discriminatory crossed quote on the appropriate output
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lines (i.e., a crossed quote of bid 12, ask be prohibited from the practice of ‘‘auto- (i) On a monthly basis, each 11.87 shall be disseminated). The quoting.’’ ‘‘Auto-quoting’’ means the Participant shall provide the Processor Processor shall normally cease the practice of tracking, by automated with a good faith estimate of the calculation of the best bid/best offer means, the changes to the best bid or Participant’s previous month’s daily after 6:30 p.m., Eastern Time. best ask quotation and responding by average number of aggregate quote updates to permit the Processor to 2. Eligible Securities generating another quote change to keep that Participant away from the best bid determine compliance with the auto- a. Number of Eligible Securities—If or ask quotation, but for purposes of this quoting limitation referenced in Section the Commission by order expands the Plan, shall not include: VI.C.2.(b) of the Plan. number of Eligible Securities beyond (i) An update that is in response to an (ii) If the Processor determines, from 1,000, the number of Eligible Securities execution in the security by that the Participant’s data or otherwise, that that Participants may trade shall be Participant; the Participant has not complied with phased in (added) according to the (ii) An update that requires a physical the limitations of Section VI.C.2.(b), the schedule set out below: entry; Processor shall give the Participant (i) At the end of the first calendar (iii) An update that is to reflect the written notice of such condition. The quarter following the Commission’s receipt, execution, or cancellation of a Participant shall have 30 calendar days order expanding the number of Eligible customer limit order; or after receipt of the written notice to Securities beyond 1,000 but in no case (iv) The practice of automatically remedy the condition. before September 30, 2001, Participants generating quote changes at a rate of less (iii) If, after the aforementioned 30- may commence trading 500 additional day period has expired, the condition than 35% of all price changes to the securities; has not been remedied to the reasonable national best bid or ask quotation. The (ii) At the end of each of the four satisfaction of the Processor, then the Processor shall calculate this rate using calendar quarters following the date Processor shall submit to the Operating quoting activity during the preceding established under provision VI.C(2)(a)(i) Committee a written request for relief calendar month. of the Plan, Participants may commence together with supporting documentation c. Applicability of Auto-Quoting trading an additional 500 securities, and evidencing the alleged condition (i.e., at the end of the fifth calendar quarter Limitation—The Limitation on Auto- failure to comply with the limitations of following the date established under Quoting contained in subparagraph Section VI.C.2.(b)) and quantifying the provision VI.C(2)(a)(i) of the Plan, VI.C(2)(b) of this Plan shall only apply impact of the violation on overall Participants shall be permitted to trade if the Processor deems it necessary to capacity of the Processor. The all Eligible Securities. maintain adequate capacity for the Processor’s request for relief shall be (iii) In no case shall the number of normal and efficient operation of the limited to such remedial action Eligible Securities exceed the number of Processor and the Processor provides at (including but not limited to the securities that the Commission deems least 30 calendar days notice to the termination of service to the subject are eligible for trading pursuant to this Participants and the basis thereof of Participant) as is necessary to modify Plan. such determination. The Processor shall the subject Participant’s quote (iv) After each of the aforementioned lift the limitation on auto-quoting when generation practices on a prospective phase in periods (i.e., calendar the Processor determines it is prudent to basis, for such period as is necessary to quarters), the Processor shall evaluate do so, in light of system capacity and resolve the condition that gave rise to its performance to determine whether it any other operational factors. the Processor’s request for relief. The is prudent, in light of system capacity Additionally, the Limitation on Auto- Participant shall have 15 calendar days and any other operational factors, to Quoting set forth in subparagraph to respond in writing to the Processor’s continue to add additional securities VI.C(2)(b) of this Plan will not apply to request for relief. pursuant to the phase in schedule. If the a Participant whose aggregated quoting (iv) The Operating Committee, Processor determines, in light of system activity in eligible Nasdaq securities following written notice to the capacity and any other operational does not exceed 1% of the total Participant and the Processor, shall factors, that it is not prudent to continue quotation traffic across all Nasdaq conduct a hearing within five (5) to expand the number of Eligible securities by all Nasdaq market business days after expiration of the 15- Securities, the Processor upon notice to participants and Exchange Participants. day response period to determine the Participants immediately may The Processor shall calculate this rate whether to grant or deny the Processor’s suspend the phase-in schedule and using quoting activity during the claim for remedial action. At the delay the expansion of the number of preceding calendar month. hearing, the Operating Committee may Eligible Securities that may be traded d. Obligations of Participants consider, among other information, the under the Plan. The Processor shall Regarding Capacity—Each Participant request of the Processor, the response (if commence adding securities pursuant to shall exercise due diligence to promote any) of the Participant and any other a revised phase-in schedule, when the quotation generation practices that evidence (written or oral) that is Processor determines it is prudent to do mitigate quotation traffic so as to ensure presented at the hearing. At the so, in light of system capacity and any prudential excess capacity within the conclusion of the hearing, the Operating other operational factors. Processor. The Operating Committee Committee shall grant or deny the (v) This provision shall not apply to shall periodically review the Processor’s request. An affirmative vote The Nasdaq Stock Market, Inc., or performance of Participants and take of two-thirds of the Operating Nasdaq market participants acting in such action as necessary to maintain Committee members entitled to vote such capacity, nor shall it apply to any prudential excess capacity. (excluding the subject Participant) shall Participant that does not engage in auto- e. Procedures for Ensuring Acceptable be required for any decision of the quoting, as described in paragraph Quote Generation Practices—The Operating Committee. The decision of VI.C.(2)(b) below. following procedures shall apply if, in the Operating Committee shall be final b. Limitation on Auto-Quoting— accordance with Section VI.C.2(c) of the and therefore reviewable by the Except as provided in sub-paragraph Plan, the Processor determines that a Commission; provided, however, that VI.C(2)(c) of this Plan, Participants shall capacity concern exists. any decision of the Operating
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Committee shall not become effective VII. Administrative Functions of the All such Transaction Reports shall be until five business days after the date of Processor transmitted to the Processor within 90 the decision. Subject to the general direction of the seconds after the time of execution of f. Limitation on Applicability of Operating Committee, the Processor the transaction. Transaction Reports Rule—The phase-in schedule contained shall be responsible for carrying out all transmitted beyond the 90-second in VI.C(2)(a) and the Limitation on administrative functions necessary to period shall be designated as ‘‘late’’ by Auto-Quoting contained in VI.C(2)(c) the operation and maintenance of the the appropriate code or message. shall not apply: consolidated information collection and The following types of transactions (i) To any Participant upon the dissemination system provided for in are not required to be reported to the designation and the operation of a new this Plan, including, but not limited to, Processor pursuant to the Plan: Processor; and 1. Transactions that are part of a record keeping, billing, contract (ii) To a Participant for the number of primary distribution by an issuer or of administration, and the preparation of securities that the Participant quoted as a registered secondary distribution or of financial reports. of May 1, 2001; provided, however the an unregistered secondary distribution; exemption contained herein shall expire VIII. Transmission of Information to 2. Transactions made in reliance on a year from the end-date of the phase- Processor by Participants Section 4(2) of the Securities Act of in schedule contained in VI.C(2)(a). 1933; A. Quotation Information 3. Transactions in which the buyer 3. Quotation Data Streams Each Participant shall, during the and the seller have agreed to trade at a The Processor shall disseminate on time it is open for trading be responsible price unrelated to the Current Market the UTP Quote Data Feed a data stream promptly to collect and transmit to the for the security, e.g., to enable the seller of all Quotation Information regarding Processor accurate Quotation to make a gift; Eligible Securities received from Information in Eligible Securities 4. Odd-lot transactions; Participants. Each quotation shall be through any means prescribed herein. 5. The acquisition of securities by a designated with a symbol identifying Quotation Information shall include: broker-dealer as principal in the Participant from which the 1. Identification of the Eligible anticipation of making an immediate quotation emanates. Quotation Security, using the Nasdaq Symbol; exchange distribution or exchange Information from individual NASD 2. The priced bid and offer, together offering on an exchange; Participants will not be disseminated on with size; 6. Purchases of securities pursuant to the UTP Quote Data Feed. The Processor 3. The NASD Participant along with a tender offer; and shall separately distribute on the OTC that NASD Participant’s market 7. Purchases or sales of securities Montage Data Feed the Quotation participant identification; or Participant effected upon the exercise of an option Information regarding Eligible Securities from which the quotation emanates; pursuant to the terms thereof or the from all NASD Participants from which 4. Identification of quotations that are exercise of any other right to acquire quotations emanate. not firm; and securities at a pre-established 5. Through appropriate codes and consideration unrelated to the Current 4. Transaction Reports messages, withdrawals and similar Market. The Processor shall disseminate on matters. the UTP Trade Data Feed a data stream C. Symbols for Market Identification for B. Transaction Reports of all Transaction Reports in Eligible Quotation Information and Transaction Securities received from Participants. Each Participant shall, during the Reports Each transaction report shall be time it is open for trading, be The following symbols shall be used designated with a symbol identifying responsible promptly to collect and to denote the Participant marketplaces: the Participant in whose Market the transmit to the Processor Transaction Code Participant transaction took place. Reports in Eligible Securities executed in its Market by means prescribed A American Stock Exchange D. Closing Reports herein. With respect to orders sent by B Boston Stock Exchange At the conclusion of each trading day, one Participant Market to another C Cincinnati Stock Exchange the Processor shall disseminate a Participant Market for execution, each M Chicago Stock Exchange ‘‘closing price’’ for each Eligible Participant shall adopt procedures D NASD Security. Such ‘‘closing price’’ shall be governing the reporting of transactions Q Nasdaq the price of the last Transaction Report in Eligible Securities specifying that the P Pacific Exchange in such security received prior to transaction will be reported by the X Philadelphia Stock Exchange dissemination. The Processor shall also Participant whose member sold the D. Whenever a Participant determines tabulate and disseminate at the security. This provision shall apply only that a level of trading activity or other conclusion of each trading day the to transactions between Plan unusual market conditions prevent it aggregate volume reflected by all Participants. from collecting and transmitting Transaction Reports in Eligible Transaction Reports shall include: Quotation Information or Transaction Securities reported by the Participants. 1. Identification of the Eligible Reports to the Processor, or where a Security, using the Nasdaq Symbol; trading halt or suspension in an Eligible E. Statistics 2. The number of shares in the Security is in effect in its Market, the The Processor shall maintain transaction; Participant shall promptly notify the quarterly, semi-annual and annual 3. The price at which the shares were Processor of such condition or event transaction and volume statistical purchased or sold; and shall resume collecting and counts. The Processor shall, at cost to 4. The buy/sell/cross indicator; transmitting Quotation Information and the user Participant(s), make such 5. The Market of execution; and, Transaction Reports to it as soon as the statistics available in a form agreed 6. Through appropriate codes and condition or event is terminated. In the upon by the Operating Committee, such messages, late or out-of-sequence trades, event of a system malfunction resulting as a secure website. corrections and similar matters. in the inability of a Participant or its
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members to transmit Quotation Halt (as well as notice of the lifting of between 9:30 a.m. and 4 p.m. Eastern Information or Transaction Reports to a regulatory halt) through the UTP Time (‘‘ET’’) on all days the Processor the Processor, the Participant shall Quote Data Feed. This notice shall serve is in operation. Transaction Reports promptly notify the Processor of such as official notice of a regulatory halt for shall be entered between 9:30 a.m. and event or condition. Upon receiving such purposes of the Plan only, and shall not 4:01:30 p.m. ET by Participants as to all notification, the Processor shall take substitute or otherwise supplant notice Eligible Securities in which they appropriate action, including either that a Participant may recognize or execute transactions between 9:30 a.m. closing the quotation or purging the require under its own rules. Nothing in and 4 p.m. ET on all days the Processor system of the affected quotations. this provision shall be read so as to is in operation. supplant or be inconsistent with a IX. Market Access B. Participants that execute Participant’s own rules on trade halts, transactions in Eligible Securities A. Each Participant shall permit each which rules apply to the Participant’s NASD market participant, acting in its outside the hours of 9:30 a.m. ET and own members. The Processor will reject 4 p.m., ET, shall be reported as follows: capacity as such, direct telephone any quotation information and monitor access to the specialist, trading post, for transaction reports received from (i) Transactions in Eligible Securities market maker and supervisory center in any Participant on an Eligible Security executed between 8 a.m. and 9:29:59 each Eligible Security in which such that has a Regulatory Halt in effect. a.m. ET and between 4:00:01 and 6:30 NASD market participant is registered B. Whenever the Listing Market p.m. ET, shall be designated as ‘‘.T’’ as a market maker or electronic determines that an adequate publication trades to denote their execution outside communications network/alternative or dissemination of information has normal market hours; trading system with NASD. Such access occurred or the regulatory problem has (ii) Transactions in Eligible Securities shall include appropriate procedures or been addressed so as to permit the executed after 6:30 p.m. and before 12 requirements by each Participant or termination of the Regulatory Halt then a.m. (midnight) shall be reported to the employee to assure the timely response in effect, the Listing Market shall Processor between the hours of 8 a.m. to communications received through promptly notify the Processor and each and 6:30 p.m. ET on the next business telephonic access. No Participant shall of the other Participants that conducts day (T+1), and shall be designated ‘‘as/ permit the imposition of any access or trading in such security. Except in of’’ trades to denote their execution on execution fee, or any other fee or charge, extraordinary circumstances, adequate a prior day, and be accompanied by the with respect to transactions in Eligible publication or dissemination shall be time of execution; Securities effected with NASD market presumed by the Listing Market to have participants which are communicated to occurred upon the expiration of one (iii) Transactions in Eligible Securities the floor by telephone pursuant to the hour after initial publication in a executed between 12 a.m. (midnight) provisions of this Plan. A Participant national news dissemination service of and 8 a.m. ET shall be transmitted to the shall be free to charge for other types of the information that gave rise to the Processor between 8 a.m. and 9:30 a.m. access to its floor or facilities. Regulatory Halt. ET, on trade date, shall be designated as B. The NASD shall assure that each C. Except in the case of a Regulatory ‘‘.T’’ trades to denote their execution Participant, and its members shall have Halt, the Processor shall not cease the outside normal market hours, and shall direct telephone access to the trading dissemination of quotation or be accompanied by the time of desk of each NASD market participant transaction information regarding any execution; in each Eligible Security in which the Eligible Security. In particular, it shall (iv) Transactions reported pursuant to Participant displays quotations, and to not cease dissemination of such this provision of the Plan shall be the NASD Supervisory Center. Such information because of a delayed included in the calculation of total trade access shall include appropriate opening, imbalance of orders or other volume for purposes of determining net procedures or requirements to assure market-related problems involving such distributable operating revenue, but the timely response of each NASD security. During a regulatory halt, the shall not be included in the calculation market participant to communications Processor shall collect and disseminate of the daily high, low, or last sale. received through telephone access. No Transaction Information but shall cease C. Late trades shall be reported in NASD market participant shall impose collection and dissemination of all accordance with the rules of the any access or execution fee, or any other Quotation Information. Participant in whose Market the fee or charge, with respect to D. For purposes of this Section X, transaction occurred and can be transactions in Eligible Securities ‘‘Listing Market’’ for an Eligible Security reported between the hours of 8 a.m. effected with a member of a Participant means the Participant’s Market on and 6:30 p.m. which are communicated by telephone which the Eligible Security is listed. If pursuant to the provisions of this Plan. an Eligible Security is dually listed, D. The Processor shall collect, process Listing Market shall mean the and disseminate Quotation Information X. Regulatory Halts Participant’s Market on which the in Eligible Securities between 8 a.m. A. Whenever, in the exercise of its Eligible Security is listed that also has and 9:30 a.m. ET, and after 4 p.m. ET, regulatory functions, the Listing Market the highest number of the average of the when any Participant or NASD for an Eligible Security determines that reported transactions and reported share Participant is open for trading, until a Regulatory Halt is appropriate, all volume for the preceding 12-month 6:30 p.m. ET (the ‘‘Additional Period’’); other Participants shall also halt or period. The Listing Market for dually- provided, however, that the national suspend trading in that security until listed Eligible Securities shall be best bid and offer quotation will not be notification that the halt or suspension determined at the beginning of each disseminated before 9:30 a.m. or after is no longer in effect. The Listing Market calendar quarter. 6:30 p.m. ET. Participants that enter shall immediately notify the Processor Quotation Information or Transaction of such Regulatory Halt as well as notice XI. Hours of Operation Reports to the Processor during the of the lifting of a Regulatory Halt. The A. Quotation Information may be Additional Period shall do so for all Processor, in turn, shall disseminate to entered by Participants as to all Eligible Eligible Securities in which they enter Participants notice of the Regulatory Securities in which they make a market quotations.
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XII. Undertaking by All Participants Reports, Quotation Information or other for which it may be responsible The filing with and approval by the information reported to the Processor by pursuant to Section XIII hereof. Except Commission of this Plan shall obligate such Participant and disseminated by as aforesaid, a withdrawing Participant each Participant to enforce compliance the Processor to Vendors. This shall have no further obligation under by its members with the provisions indemnity agreement shall be in the Plan or to any of the other thereof. In all other respects not addition to any liability that the Participants with respect to the period inconsistent herewith, the rules of each indemnifying Participant may otherwise following the effectiveness of its Participant shall apply to the actions of have. withdrawal. Promptly after receipt by an its members in effecting, reporting, indemnified Participant of notice of the XVI. Modifications to Plan honoring and settling transactions commencement of any action, such executed through its facilities, and the The Plan may be modified from time indemnified Participant will, if a claim entry, maintenance and firmness of to time when authorized by the in respect thereof is to be made against quotations to ensure that such occurs in agreement of all of the Participants, an indemnifying Participant, notify the subject to the approval of the SEC. a manner consistent with just and indemnifying Participant in writing of equitable principles of trade. the commencement thereof; but the XVII. Applicability of Securities XIII. Financial Matters omission to so notify the indemnifying Exchange Act of 1934 Participant will not relieve the A. Development Costs The rights and obligations of the indemnifying Participant from any Participants and of Vendors, News Any Participant becoming a signatory liability which it may have to any Services, Subscribers and other persons to this Plan after June 26, 1990, shall, as indemnified Participant. In case any contracting with Participants in respect a condition to becoming a Participant, such action is brought against any of the matters covered by the Plan shall pay to the other Plan Participants a indemnified Participant and it promptly at all times be subject to any applicable proportionate share of the aggregate notifies an indemnifying Participant of provisions of the Act, as amended, and development costs previously paid by the commencement thereof, the any rules and regulations promulgated Plan Participants to the Processor, indemnifying Participant will be thereunder. which aggregate development costs entitled to participate in, and, to the totaled $439,530, with the result that extent that it may wish, jointly with any XVIII. Operational Issues each Participant’s share of all other indemnifying Participant similarly A. Each Participant shall be development costs is the same. notified, to assume and control the responsible for collecting and validating Each Participant shall bear the cost of defense thereof with counsel chosen by quotes and last sale reports within their implementation of any technical it. After notice from the indemnifying own system prior to transmitting this enhancements to the Processor system Participant of its election to assume the data to the Processor. made at its request and solely for its use, defense thereof, the indemnifying B. Each Participant may utilize a subject to reapportionment should any Participant will not be liable to such dedicated Participant line into the other Participant subsequently make use indemnified Participant for any legal or Processor to transmit trade and quote of the enhancement, or the development other expenses subsequently incurred information in Eligible Securities to the thereof. by such indemnified Participant in Processor. The Processor shall accept connection with the defense thereof but B. Cost Allocation and Revenue Sharing from Participants input for only those the indemnified Participant may, at its issues that are deemed Eligible The provision governing cost own expense, participate in such Securities. allocation and revenue sharing among defense by counsel chosen by it C. The Processor shall consolidate the Participants are set forth in Exhibit without, however, impairing the trade and quote information from each 1 to the Plan. indemnifying Participant’s control of the defense. The indemnifying Participant and disseminate this C. Maintenance of Financial Records Participant may negotiate a compromise information on the Processor’s existing The Processor shall maintain records or settlement of any such action, vendor lines. of revenues generated and development provided that such compromise or D. The Processor shall perform gross and operating expenditures incurred in settlement does not require a validation processing for quotes and last connection with the Plan. In addition, contribution by the indemnified sale messages in addition to the the Processor shall provide the Participant. collection and dissemination functions, Participants with: (a) A statement of as follows: XV. Withdrawal financial and operational condition on a 1. Basic Message Validation quarterly basis; and (b) an audited Any Participant may withdraw from statement of financial and operational the Plan at any time on not less than 30 (a) The Processor may validate format condition on an annual basis. days prior written notice to each of the for each type of message, and reject non- other Participants. Any Participant conforming messages. XIV. Indemnification withdrawing from the Plan shall remain (b) Input must be for an Eligible Each Participant agrees, severally and liable for, and shall pay upon demand, Security. not jointly, to indemnify and hold any fees for equipment or services being 2. Logging Function—The Processor harmless each other Participant, provided to such Participant pursuant to shall return all Participant input Nasdaq, and each of its directors, the contract executed by it or an messages that do not pass the validation officers, employees and agents agreement or schedule of fees covering checks (described above) to the (including the Operating Committee and such then in effect. inputting Participant, on the entering its employees and agents) from and A withdrawing Participant shall also Participant line, with an appropriate against any and all loss, liability, claim, remain liable for its proportionate share, reject notation. For all accepted damage and expense whatsoever without any right of recovery, of Participant input messages (i.e., those incurred or threatened against such administrative and operating expenses, that pass the validation check), the persons as a result of any Transaction including start-up costs and other sums information shall be retained for
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immediate processing in the Processor consolidating, and disseminating Vendors for the year (trade/volume system. National Best Bid and Offer data, average). For any given year, a exchange best bid and offer data, and Participant’s percentage of total trades XIX. Headings consolidated last sale data. shall be calculated by dividing the total The section and other headings Upon approval of a Plan amendment number of trades that that Participant contained in this Plan are for reference implementing depth of book display, reports to the Processor as the selling purposes only and shall not be deemed this article of the Plan shall be party for that year by the total number to be a part of this Plan or to affect the automatically deleted. of trades in Nasdaq securities reported meaning or interpretation of any In witness whereof, this Plan has been to the Processor and disseminated to provisions of this Plan. executed as of the ll day of , 2002, by Vendors for the year. A Participant’s each of the Signatories hereto. XX. Counterparts total share volume shall be calculated American Stock Exchange, Inc. by multiplying the total number of This Plan may be executed by the By: lllllllllllllllllll trades in Nasdaq securities in that year Participants in any number of Boston Stock Exchange, Inc. that that Participant reports to the counterparts, no one of which need Processor as the selling party multiplied By: lllllllllllllllllll contain the signature of all Participants. by the number of shares for each such As many such counterparts as shall Cincinnati Stock Exchange, Inc. trade. Unless otherwise stated in this together contain all such signatures By: lllllllllllllllllll agreement, a year shall run from January shall constitute one and the same Pacific Exchange, Inc. 1 to December 31. instrument. By: lllllllllllllllllll 3. For purposes of this Exhibit 1, net XXI. Depth of Book Display Nasdaq Stock Market, Inc distributable operating income for any particular calendar year shall be The Operating Committee has lllllllllllllllllll By: calculated by adding all revenues from determined that the entity that succeeds Chicago Stock Exchange, Inc. Nasdaq as the Processor should have the the UTP Quote Data Feed, the UTP By lllllllllllllllllll ability to collect, consolidate, and Trade Data Feed, and the OTC Montage disseminate quotations at multiple price National Association of Securities Dealers, Data Feed, including revenues from the levels beyond the best bid and best offer Inc. dissemination of information of Eligible from any Participant that voluntarily By lllllllllllllllllll Securities to foreign marketplaces chooses to submit such quotations while Philadelphia Stock Exchange (collectively, ‘‘the Data Feeds’’), and subtracting from such revenues the costs determining that no Participant shall be By: lllllllllllllllllll required to submit such information. incurred by the Processor, set forth The Operating Committee has further Exhibit 1 below, in collecting, consolidating, determined that the costs of developing, 1. Each Participant eligible to receive validating, generating, and collecting, processing, and revenue under the Plan will receive an disseminating the Data Feeds. These disseminating such depth of book data annual payment for each calendar year costs include, but are not limited to, the shall be borne exclusively by those to be determined by multiplying (i) that following: Participants that choose to submit this Participant’s percentage of total volume a. The Processor costs directly information to the Processor, by in Nasdaq securities reported to the attributable to creating OTC Montage whatever allocation those Participants Processor and disseminated to Vendors Data Feed, including: may choose among themselves. The for that calendar year by (ii) the total 1. Cost of collecting Participant quotes Operating Committee has determined distributable net operating income (as into the Processor’s quote engine; further that the primary purpose of the defined below) for that calendar year, 2. Cost of processing quotes and Processor is the collection, processing provided, however, that for the creating OTC Montage Data Feed and dissemination of best bid, best offer implementation year (as defined in messages within the Processor’s quote and last sale information (‘‘core data’’), Paragraph 4 below), a Participant’s engine; and as such, the Participants will adopt payment shall be multiplied by the 3. Cost of the Processor’s procedures to ensure that such number of months during the communication management subsystem functionality in no way hinders the implementation year the interface was that distributes OTC Montage Data Feed collecting, processing and in operation divided by twelve. In the to the market data vendor network for dissemination of this core data. event that total distributable net further distribution. Therefore, implementing the depth of operating income is negative, each b. The costs directly attributable to book display functionality will require a Participant eligible to receive revenue creating the UTP Quote Data Feed, plan amendment that addresses all under the Plan will receive an annual including: pertinent issues, including: bill for each calendar year to be 1. The costs of collecting each (1) Procedures for ensuring that the determined according to the same Participant’s best bid, best offer, and fully-loaded cost of the collection, formula (described in this paragraph) for aggregate volume into the Processor’s processing, and dissemination of depth- determining annual payments to eligible quote engine; of-book information will be tracked and Participants. 2. Cost of calculating the national best invoiced directly to those Plan 2. A Participant’s percentage of total bid and offer price within the Participants that voluntarily choose to volume in Nasdaq securities will be Processor’s quote engine; send that data, voluntarily, to the calculated by taking the average of (i) 3. Cost of creating the UTP Quote Data Processor allocating in whatever manner the Participant’s percentage of total Feed message within the Processor’s those Participants might agree; and trades in Nasdaq securities reported to quote engine; (2) Necessary safeguards the Processor the Processor and disseminated to 4. Cost of the Processor’s will take to ensure that its processing of Vendors for the year and (ii) the communication management subsystem depth-of-book data will not impede or Participant’s percentage of total share that distributes the UTP Quote Data hamper, in any way, its core Processor volume in Nasdaq securities reported to Feed to the marker data vendors’ functionality of collecting, the Processor and disseminated to networks for further distribution.
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c. The costs directly attributable to (implementation date) until December SECURITIES AND EXCHANGE creating the UTP Trade Data Feed, 31 of the implementation year, Nasdaq COMMISSION including: shall pay the Participant a pro rata 1. The costs of collecting each amount of its payment or bill the [Release No. 34–46131; File No. SR–Amex– Participant’s last sale and volume Participant for a pro rata amount of its 2002–38] amount into the Processor’s quote losses for the implementation year (as engine; calculated in Paragraph 1 above). This Self-Regulatory Organizations; Notice 2. Cost of determining the appropriate calculation and resultant payment (or of Filing of Proposed Rule Change and last sale price and volume amount bill) will be made (or due) within ninety Amendment No. 1 Thereto by the within the Processor’s trade engine; (90) days after the twelfth month American Stock Exchange LLC 3. Cost of utilizing the Processor’s following the implementation date. Proposing To Designate the New trade engine to distribute the UTP Trade Trading Floor on the Ground Floor of Data Feed for distribution to the market 6. For the calendar year subsequent to the Exchange as a ‘‘Separate Trading data vendors. the implementation year, and Area’’ 4. Cost of the Processor’s continuing thereafter, the calculation of communication management subsystem the Participant’s annual payment or loss June 27, 2002. that distributes the UTP Trade Data will be performed and the payment Pursuant to section 19(b)(1) of the Feed to the marker data vendors’ made or bill delivered by March 31 of Securities Exchange Act of 1934 networks for further distribution. the following year. Estimated quarterly (‘‘Act’’),1 and Rule 19b–4 thereunder,2 d. The additional costs that are shared payments or billings shall be made to notice is hereby given that on April 23, across all Data Feeds, including: each eligible Participant within 45 days 2002, the American Stock Exchange LLC 1. Telecommunication Operations following the end of each calendar (‘‘Amex’’ or ‘‘Exchange’’) filed with the costs of supporting the Participant lines quarter in which the Participant is Securities and Exchange Commission into the Processor’s facilities; eligible to receive revenue, provided (‘‘SEC’’ or ‘‘Commission’’) the proposed 2. Telecommunications Operations that the total of such estimated rule change as described in Items I, II, costs of supporting the external market payments or billings shall be reconciled and III below, which Items have been data vendor network; 3. Data Products account management at the end of each calendar year and, if prepared by the Exchange. On June 6, necessary, adjusted by March 31st of the 2002, the Amex submitted Amendment and auditing function with the market 3 data vendors; following year. Interest shall be No. 1 to the proposed rule change. The 4. Market Operations costs to support included in quarterly payments and in Commission is publishing this notice, as symbol maintenance, and other data adjusted payments made on March 31st amended, to solicit comments on the integrity issues; of the following year. Such interest shall proposed rule change from interested 5. Overhead costs, including accrue monthly during the period in persons. management support of the Processor, which revenue was earned and not yet I. Self-Regulatory Organization’s Human Resources, Finance, Legal, and paid and will be based on the 90-day Statement of the Terms of Substance of Administrative Services. Treasury bill rate in effect at the end of the Proposed Rule Change e. Processor costs excluded from the the quarter in which the payment is calculation of net distributable made. Interest shall not accrue during The Exchange proposes to designate operating income include trade the period of up to 45 days between the the new trading floor on the ground execution costs for transactions end of each calendar quarter and the floor of the Exchange (‘‘Harry’s’’) as a executed using a Nasdaq service and date on which an estimated quarterly ‘‘separate trading area.’’ trade report collection costs reported payment or billing is made. II. Self-Regulatory Organization’s through a Nasdaq service, as such In conjunction with calculating Statement of the Purpose of, and services are market functions for which Statutory Basis for, the Proposed Rule Participants electing to use such estimated quarterly and reconciled Change services pay market rate. annual payments under this Exhibit 1, the Processor shall submit to the f. For the purposes of this provision, In its filing with the Commission, the so long as Nasdaq is the Processor, the Participants an itemized statement setting forth the basis upon which net Exchange included statements following definitions shall apply: concerning the purpose of and basis for operating income was calculated, 1. ‘‘Quote engine’’ shall mean the the proposed rule change and discussed including an itemized statement of the Nasdaq’s UNISYS or Tandem system any comments it received on the Processor costs set forth in Paragraph 3 that is operated by Nasdaq to collect proposed rule change. The text of these quotation information for Eligible of this Exhibit. Such Processor costs statements may be examined at the Securities; shall be reconciled annually based places specified in Item IV below. The 2. ‘‘Trade engine’’ shall mean the solely on the Processor’s audited annual Exchange has prepared summaries, set Nasdaq Tandem system that is operated financial information. By majority vote forth in sections A, B, and C below, of by Nasdaq for the purpose of collecting of the Operating Committee, the the most significant aspects of such last sale information in Eligible Processor shall engage an independent statements. Securities. auditor to audit the Processor’s costs or 4. At the time a Participant other calculation(s), the cost of which 1 implements a Processor-approved 15 U.S.C. 78s(b)(1). audit shall be shared equally by all 2 17 CFR 240.19b–4. electronic interface with the Processor, Participants. The Processor agrees to 3 See letter from Jeffrey P. Burns, Assistant the Participant will become eligible to cooperate fully in providing the General Counsel, Amex, to Nancy Sanow, Assistant receive revenue for the year in which information necessary to complete such Director, Division of Market Regulation the interface is implemented (‘‘Division’’), Commission, dated June 5, 2002 audit. (‘‘Amendment No. 1’’). In Amendment No. 1, the (implementation year). Amex confirmed that it currently permits the 5. From the date a Participant is [FR Doc. 02–16769 Filed 7–3–02; 8:45 am] trading of options on both listed and non-Amex- eligible to receive revenue BILLING CODE 8010–01–P listed stocks on the ‘‘Harry’s’’ trading floor.
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A. Self-Regulatory Organization’s for purposes of stocks and related Exchange believes that the Commission Statement of the Purpose of, and options.8 should approve the designation of Statutory Basis for, the Proposed Rule In 2001, the Exchange opened its new Harry’s as a ‘‘separate trading area.’’ Change trading facility, Harry’s, located in a separate area on the ground floor of the 2. Statutory Basis 1. Purpose Exchange. Harry’s is on a separate level The Exchange believes the basis for of the Amex and may only be accessed the proposed rule change is the The Exchange filed this proposed rule from the Exchange’s other trading requirement under section 6(b)(5) of the change in connection with its proposal locations by an escalator. Accordingly, Act 13 that an exchange have rules that to trade Nasdaq securities on an Harry’s is physically separate from the are designed to prevent fraudulent and unlisted basis (‘‘Nasdaq UTP other trading areas at the Exchange, and manipulative acts and practices, to 4 Program’’). This proposed rule change therefore, is not visible from the promote just and equitable principles of would designate Harry’s as a ‘‘separate Exchange’s other trading locations. The trade, to foster cooperation and trading area.’’ Exchange submits that Harry’s is a coordination with persons engaged in In 1988, the Exchange received ‘‘separate trading area.’’9 facilitating transactions in securities, to Commission approval to trade options In the 1998 Order, the Commission remove impediments to and perfect the on Amex-listed stocks.5 The approval granted approval to permit options mechanism of a free and open market was based upon, among other things, trading on Amex-listed stocks in two and a national market system, to protect the Amex’s trading floors for equities locations of the Exchange in addition to investors and the public interest and are and options on those equities 6 being the Red Room: (1) The Mezzanine and not designed to permit unfair sufficiently separated such that there (2) the Back Row.10 Since the 1998 discrimination between customers, could be no time and place advantage approval was granted, the trading of issuers, brokers, or dealers. derived from the physical proximity of options on Amex-listed securities has continued to occur on the Exchange at B. Self-Regulatory Organization’s the two floors which could be exploited. Statement on Burden on Competition The Amex currently has five designated locations that are deemed physically trading locations: (1) The main trading separate from locations where the The Exchange does not believe that floor (‘‘Main Trading Floor’’ or trading of Amex-listed securities occurs. the proposed rule change will impose ‘‘Designated Stock Area’’); (2) the The Exchange maintains that Harry’s is any burden on competition. a physically separate trading location, mezzanine trading level, which is and therefore, trading of options on C. Self-Regulatory Organization’s located above the Main Trading Floor Amex-listed stocks is permissible based Statement on Comments on the (‘‘Mezzanine’’) (options Amex-listed on the 1988 and 1998 Orders. In Proposed Rule Change Received From stocks may not trade on that part of the addition, the absence of a ‘‘line of sight’’ Members, Participants, or Others Mezzanine visible from the Main with respect to options trading on No written comments were solicited Trading Floor); (3) a separate room Harry’s and any underlying stock of or received with respect to the proposed connected by a hallway to the Main such option reinforces the Exchange’s rule change. Trading Floor (the ‘‘Red Room’’ or belief that Harry’s is a separate trading 7 III. Date of Effectiveness of the ‘‘Designated Options Area’’); (4) the area and, therefore, no time or place Proposed Rule Change and Timing for back row of the west side of the Main advantage exists.11 The Exchange Commission Action Trading Floor referred to as the west believes that it is consistent with both side of the Exchange Posts 12, 13 and the 1988 and 1998 Orders, as well as the Within 35 days of the date of 15 (‘‘Back Row’’), and (5) ‘‘Harry’s’’. In Index Order, to permit the trading of publication of this notice in the Federal addition, the Main Trading Floor, the options on both Amex-listed and non- Register or within such longer period (i) Red Room, the Mezzanine and the Back Amex-listed stocks on Harry’s.12 The as the Commission may designate up to Row are considered physically separate 90 days of such date if it finds such 8 See 1988 Order, supra note 4; Securities longer period to be appropriate and 4 See Securities Exchange Act Release Nos. 45365 Exchange Act Release No. 39631 (February 9, 1998), publishes its reasons for so finding, or (January 30, 2002), 67 FR 5626 (February 6, 2002) 63 FR 8229 (February 18, 1998) (‘‘1998 Order’’). (ii) as to which the Exchange consents, 9 (proposing to admit trading on the Amex of Nasdaq The Exchange currently permits the trading of the Commission will: National Market Securities pursuant to unlisted options on both listed and non-Amex-listed stocks trading privileges); 45698 (April 5, 2002), 67 FR on Harry’s. A. By order approve such proposed 18051 (April 12, 2002) (approving proposal to adopt 10 See 1998 Order, supra note 7. rule change; or Amex Rule 28 to establish allocation procedures for 11 The Exchange represents that it maintains B. Institute proceedings to determine securities admitted to dealings on an unlisted adequate surveillance systems designed to prevent whether the proposed rule change trading privilege basis). trading abuses and manipulation as well as to should be disapproved. 5 Securities Exchange Act Release No. 26147 ensure compliance with the relevant Exchange rules (October 3, 1988), 53 FR 39556 (October 7, 1988) consistent with the 1988, 1998 and Index Orders. IV. Solicitation of Comments (‘‘1988 Order’’). Telephone Conversation between Jeffrey P. Burns, 6 For purposes of this proposal, the terms stock(s), Assistant General Counsel, Amex, and Christopher Interested persons are invited to equity and equities are used interchangeably. Solgan, Law Clerk, Division, Commission, on May submit written data, views, and 7 Amex-listed stocks, options on non-Amex-listed 17, 2002. arguments concerning the foregoing, stocks and options on indices (excluding options on 12 The Exchange notes that it has filed a including whether the proposed rule indices where Amex-listed stocks comprise more companion proposal to expand designated trading than ten percent of the index value by weight) trade locations to permit the ability to trade an Amex- change, as amended, is consistent with on the Main Trading Floor. Options on indices listed stock and its underlying options on Harry’s the Act. Persons making written where Amex-listed stocks comprise more than ten provided that an intervening post or physical submissions should file six copies percent of the index value by weight and options structure sufficient to block a ‘‘line of sight’’ thereof with the Secretary, Securities on non-Amex-listed stocks trade on the Mezzanine. between the appropriate trading crowds existed. Options on Amex-listed stocks, non-Amex-listed See File No. SR–Amex–2002–37. Accordingly, if stocks and indices where Amex-listed stocks approved, the Exchange may determine to trade Assistant General Counsel, Amex, and, Kelly Riley, comprise more than ten percent of the index value Amex-listed stocks on Harry’s provided a ‘‘line of Senior Special Counsel, Division, Commission, on by weight trade in the Red Room. See Securities sight’’ does not exist between the trading crowds of June 6, 2002. See also Amendment No. 1, supra Exchange Act Release No. 34359 (July 12, 1994), 59 the underlying stock and its related option. note 3. FR 36799 (July 19, 1994) (‘‘Index Order’’). Telephone Conversation between Jeffrey P. Burns, 13 15 U.S.C. 78f(b)(5).
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and Exchange Commission, 450 Fifth Company Guide. The proposed changes connection with proxy solicitations Street, NW, Washington, DC 20549– would implement the same fee structure pursuant to Rule 576 and in mailing 0609. Copies of the submission, all governing the reimbursement of member interim reports or other material subsequent amendments, all written organizations for costs incurred in the pursuant to Rule 585. In addition to the statements with respect to the proposed transmission of proxy and other charges specified in this schedule, rule change that are filed with the shareholder communications that was member organizations also are entitled Commission, and all written recently adopted by the New York Stock to receive reimbursement for: (i) actual communications relating to the Exchange, Inc. (‘‘NYSE’’). postage costs (including return postage proposed rule change between the Below is the text of the proposed rule at the lowest available rate); (ii) the Commission and any person, other than change. Proposed new language is actual cost of envelopes (provided they those that may be withheld from the italicized; proposed deleted language is are not furnished by the person public in accordance with the [bracketed]. soliciting proxies); and (iii) any actual provisions of 5 U.S.C. 552, will be * * * * * communication expenses (excluding available for inspection and copying in overhead) incurred in receiving voting Transmission of Proxy Material to the Commission’s Public Reference returns either telephonically or Customers Room. Copies of such filings will also be electronically.[:] available for inspection and copying at Rule 576. (a). No change. the principal office of the Exchange. All (b) Such member organization shall Charges for Initial Proxy and/or Annual submissions should refer to File No. transmit with such material either: Report Mailings SR–Amex–2002–38 and should be (1) A request for voting instructions [60¢] 40¢ for each set of proxy submitted by July 26, 2002. and, as to matters which may be voted material, i.e. proxy statement, form of without instructions under Rule 577, a For the Commission, by the Division of proxy and annual report when mailed as Market Regulation, pursuant to delegated statement to the effect that, if such a unit, unless an opposition proxy authority.14 instructions are not received by the statement has been furnished to security Margaret H. McFarland, tenth day before the meeting, the proxy holders [for those meetings that do not Deputy Secretary. may be given at discretion by the owner include a proposal which requires of record of the stock; provided, [FR Doc. 02–16771 Filed 7–3–02; 8:45 am] beneficial owner instructions, plus however, that such statement may be BILLING CODE 8010–01–P postage], with a minimum of $5.00 for made only when the proxy soliciting all sets mailed; material is transmitted to the beneficial [70¢] $1.00 for each set of proxy SECURITIES AND EXCHANGE owner of the stock or to the beneficial material, i.e., proxy statement, form of COMMISSION owner’s designated investment adviser, proxy and annual report when mailed as at least fifteen days before the meeting. a unit, for a meeting for which an [Release No. 34–46146; File No. SR–Amex– When the proxy soliciting material is 2002–51] opposition proxy statement has been transmitted to the beneficial owner of furnished to security holders [for those Self-Regulatory Organizations; Notice the stock or to the beneficial owner’s meetings which include a proposal of Filing and Immediate Effectiveness designated investment adviser twenty- requiring beneficial owner instructions, of Proposed Rule Change by the five days or more before the meeting, plus postage], with a minimum of $5.00 American Stock Exchange LLC the statement accompanying such for all sets mailed; material shall be to the effect that the Amending Exchange Rules 576 and [20¢] 15¢ for each copy, plus postage, proxy may be given fifteen days before 585, and Sections 722 and 725 of the for annual reports, which are mailed the meeting at the discretion of the Amex Company Guide separately from the proxy material owner of record of the stock; or pursuant to the instruction of the person June 28, 2002. (2) A signed proxy indicating the soliciting proxies, with a minimum Pursuant to section 19(b)(1) of the number of shares held for such charge of $3.00 for all sets mailed. Securities Exchange Act of 1934 beneficial owner and bearing a symbol The Exchange has approved, as fair (‘‘Act’’), 1 and Rule 19b–42 thereunder, identifying the proxy with proxy and reasonable, the following notice is hereby given that on June 3, records of such member organization, supplemental proxy fees for 2002, the American Stock Exchange LLC and also a letter informing the beneficial intermediaries that coordinate multiple (‘‘Amex’’ or ‘‘Exchange’’) filed with the owner or the beneficial owner’s nominees: $20.00 per nominee plus (i) Securities and Exchange Commission designated investment adviser, of the 10¢ for each set of proxy material, with (‘‘Commission’’) the proposed rule necessity for completing the proxy form respect to issuers whose shares are held change as described in Items I, II, and and forwarding it to the person in fewer than 200,000 nominee III below, which Items have been soliciting proxies in order that the accounts, or (ii) 5¢ for each set of proxy prepared by the Exchange. The shares may be represented at the material, with respect to issuers whose Commission is publishing this notice to meeting. shares are held in at least 200,000 solicit comments on the proposed rule This rule shall not apply to beneficial nominee accounts. change from interested persons. owners outside the United States. Charges for Proxy Follow-up Mailings I. Self-Regulatory Organization’s * * * Commentary Statement of the Terms of Substance of .10 through .70 No change. 40¢ for each set of follow-up the Proposed Rule Change .80 Schedule of approved charges by materials, plus postage. [, when the The Exchange proposes to amend member organization in connection follow-up material is mailed to all Exchange Rules 576 and 585, and with proxy solicitations.—The Exchange beneficial owners;] Sections 722 and 725 of the Amex has approved the following as fair and [60¢ for each set of follow-up reasonable rates of reimbursement of materials, plus postage, when the 14 17 CFR 200.30–3(a)(12). member organizations for all out-of- follow-up material is mailed only to 1 15 U.S.C. 78s(b)(1). pocket expenses, including reasonable beneficial owners who have not 2 17 CFR 240.19b–4. clerical expenses, incurred in responded to the initial mailing;]
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Charges for Interim Report Mailings supplied annual reports, interim proxy and annual report when mailed as [20¢] 15¢ for each copy, plus postage, reports, proxy statements and other a unit, unless an opposition proxy for interim reports, annual reports if material to beneficial owners. Member statement has been furnished to security mailed separately, post meeting reports organizations are not required to holders [for those meetings that do not or other material, with a minimum of transmit more than one annual report, include a proposal which requires $2.00 for all sets mailed[;]. Member interim report, proxy statement or other beneficial owner instructions, plus organizations may charge for envelopes, material to beneficial owners with more postage], with a minimum of $5.00 for provided they are not furnished by the than one account (including trust all sets mailed; [70¢] $1.00 for each set of proxy person soliciting proxies. accounts). In addition, member organizations may eliminate multiple material, i.e., proxy statement, form of Incentive Fees transmissions of reports, statements or proxy and annual report when mailed as An ‘‘Incentive Fee’’ (as defined below) other materials to beneficial owners a unit, for a meeting for which an for proxy material mailings, including having the same address, provided they opposition proxy statement has been the annual report, and 10¢ for interim comply with applicable SEC rules with furnished to security holders [for those report mailings, with respect to each respect thereto (see SEC Rule 14b-1 meetings which include a proposal account where the member organization under the Securities Exchange Act of requiring beneficial owner instructions, has eliminated the need to send 1934). plus postage], with a minimum of $5.00 materials in paper format through the * * * * * for all sets mailed; mails (such as by including multiple [20¢] 15¢ for each copy, plus postage, Transmission of Interim Reports and for annual reports, which are mailed proxy ballots or forms in one envelope Other Material with one set of material mailed to the separately from the proxy material same household, by distributing Rule 585. No change. pursuant to the instruction of the person soliciting proxies, with a minimum multiple proxy ballots or forms * * * Commentary electronically thereby reducing the sets charge of $3.00 for all sets mailed. The Exchange has approved, as fair of material mailed, or by distributing .10 No change. and reasonable, the following some or all material electronically.) .20 Mailing charges by member supplemental proxy fees for With respect to issuers whose shares organizations.—These charges are set intermediaries that coordinate multiple are held in at least 200,000 nominee forth at [Commentary] Commentaries nominees: accounts, the Incentive Fee shall be 25¢. .80, .90, .91, .93 and .94 to Rule 576. $20.00 per nominee plus (i) 10¢ for With respect to issuers whose shares * * * * * each set of proxy material, with respect are held in fewer than 200,000 nominee Amex Company Guide to issuers whose shares are held in fewer accounts, the Incentive Fee shall be 50¢. than 200,000 nominee accounts, or (ii) [Member organizations are required to Sec. 722. Transmission of Proxy 5¢ for each set of proxy material, with mail out such material as provided by Material to Customers (See Exchange respect to issuers whose shares are held Rules 576 and 585 when satisfactory Rule 576) in at least 200,000 nominee accounts. assurance is received of reimbursement (a) and (b) No change. of expenses at such rates; provided that Charges for Proxy Follow-up Mailings * * * Commentary a member organization may request 40¢ for each set of follow-up reimbursement of expenses at less than .10 through .70 No change. materials, plus postage. [, when the the approved rates; however, no .80 Schedule of approved charges by follow-up material is mailed to all member organization may seek member organization in connection beneficial owners;] reimbursement at rates higher than the with proxy solicitations.—The Exchange [60¢ for each set of follow-up approved rates or for items or services has approved the following as fair and materials, plus postage, when the not specifically listed above without the reasonable rates of reimbursement of follow-up material is mailed only to prior notification to and consent of the member organizations for all out-of- beneficial owners who have not person soliciting proxies or the pocket expenses, including reasonable responded to the initial mailing;] company.] clerical expenses, incurred in .90 No change connection with proxy solicitations Charges for Interim Report Mailings .91 No change pursuant to Rule 576 and in mailing [20¢] 15¢ for each copy, plus postage, .92 No change interim reports or other material for interim reports, annual reports if .93 Member organizations are pursuant to Rule 585. In addition to the mailed separately, post meeting reports required to mail out such material as charges specified in this schedule, or other material, with a minimum of provided by Rules 576 and 585 when member organizations also are entitled $2.00 for all sets mailed[;]. Member satisfactory assurance is received of to receive reimbursement for: (i) actual organizations may charge for envelopes, reimbursement of expenses at such postage costs (including return postage provided they are not furnished by the rates: provided that a member at the lowest available rate); (ii) the person soliciting proxies. organization may request actual cost of envelopes (provided they Incentive Fees reimbursement of expenses at less than are not furnished by the person the approved rates; however, no member soliciting proxies); and (iii) any actual An ‘‘Incentive Fee’’ (as defined below) organization may seek reimbursement at communication expenses (excluding for proxy material mailings, including rates higher than the approved rates or overhead) incurred in receiving voting the annual report, and 10¢ for interim for items or services not specifically returns either telephonically or report mailings, with respect to each listed above without the prior electronically.[:] account where the member organization notification to and consent of the person has eliminated the need to send soliciting proxies or the company. Charges for Initial Proxy and/or Annual materials in paper format through the .94 ‘‘Householding’’ of Reports. Rules Report Mailings mails (such as by including multiple 576 and 585 require member [60¢] 40¢ for each set of proxy proxy ballots or forms in one envelope organizations to transmit issuer- material, i.e. proxy statement, form of with one set of material mailed to the
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same household, by distributing under the Securities Exchange Act of rules for shareholder communications multiple proxy ballots or forms 1934). between the Amex and NYSE. electronically thereby reducing the sets * * * * * 2. Statutory Basis of material mailed, or by distributing Transmission of Interim Reports and some or all material electronically.) The Exchange believes that the Other Material With respect to issuers whose shares proposed rule change is consistent with are held in at least 200,000 nominee (See Exchange Rule 585) section 6(b) of the Act 5 in general and accounts, the Incentive Fee shall be 25¢. Section 725. No change. furthers the objectives of section 6(b)(5) With respect to issuers whose shares of the Act 6 in particular in that it is Commentary are held in fewer than 200,000 nominee designed to prevent fraudulent and accounts, the Incentive Fee shall be 50¢. *** manipulative acts and practices, to [Member organizations are required to .10 No change. promote just and equitable principles of .20 Mailing charges by member mail out such material as provided by trade, to remove impediments to and organizations. ‘‘ These charges are set Rules 576 and 585 when satisfactory perfect the mechanism of a free and forth at [Commentary] Commentaries assurance is received of reimbursement open market and a national market .80, .90, .91, .93 and .94 to Rule 576. of expenses at such rates; provided that system, and, in general, to protect a member organization may request * * * * * investor and the public interest; and are not designed to permit unfair reimbursement of expenses at less than II. Self-Regulatory Organization’s discrimination between customers, the approved rates; however, no Statement of the Purpose of, and issuers, brokers and dealers. The member organization may seek Statutory Basis for, the Proposed Rule reimbursement at rates higher than the proposed rule change also furthers the Change 7 approved rates or for items or services objectives of section 6(b)(4) of the Act In its filing with the Commission, the in particular in that it is designed to not specifically listed above without the Exchange included statements prior notification to and consent of the provide for the equitable allocation of concerning the purpose of and basis for reasonable dues, fees, and other charges person soliciting proxies or the the proposed rule change and discussed company.] among its member, issuers and other any comments it received on the persons using its facilities. .90 No change proposed rule change. The text of these .91 No change statements may be examined at the B. Self-Regulatory Organization’s .92 Rescinded [Form of bill to be used places specified in Item IV below. The Statement on Burden on Competition by member organizations-The form of Exchange has prepared summaries, set The Exchange does not believe that bill to be used by member organizations forth in Sections A, B, and C below, of the proposed rule change will impose is set forth at Commentary .30 to Rule the most significant aspects of such any burden on competition. 585.] statements. .93 Member organizations are C. Self-Regulatory Organization’s A. Self-Regulatory Organization’s Statement on Comments on the required to mail out such material as Statement of the Purpose of, and provided by Rules 576 and 585 when Proposed Rule Change Received From Statutory Basis for, the Proposed Rule Members, Participants, or Others satisfactory assurance is received of Change reimbursement of expenses at such 1. Purpose No written comments were solicited rates: provided that a member or received with respect to the proposed organization may request The Commission recently approved rule change. reimbursement of expenses at less than changes to the NYSE’s rules regarding the approved rates; however, no the reimbursement of member III. Date of Effectiveness of the member organization may seek organizations for costs incurred in the Proposed Rule Change and Timing for reimbursement at rates higher than the transmission of proxy and other Commission Action approved rates or for items or services 3 shareholder communications. In light The foregoing proposed rule change not specifically listed above without the of these changes, the Amex is proposing has become effective pursuant to section prior notification to and consent of the to amend its rules regarding the 19(b)(3)(A) 8 of the Act and Rule person soliciting proxies or the reimbursement of these costs to conform 19b–4(f)(6) 9 thereunder because the company. them to those of the NYSE. The Amex proposal: (1) Does not significantly .94 ‘‘Householding’’ of Reports. Rules also is amending its rules to permit the affect the protection of investors or the 576 and 585 require member ‘‘householding’’ of reports and annual public interest; (2) Does not impose any organizations to transmit issuer- mailings if done in compliance with significant burden on competition; and 4 supplied annual reports, interim Rule 14b–1 under the Act. The Amex (3) does not become operative for 30 reports, proxy statements and other believes that these changes will days from the date of filing, or such material to beneficial owners. Member facilitate compliance by members with shorter time as the Commission may organizations are not required to applicable self-regulatory organization designate if consistent with the transmit more than one annual report, rules by establishing consistent fees and protection of investors and the public interim report, proxy statement or other interest; provided that the Exchange has 3 material to beneficial owners with more See Securities Exchange Act Release No. 45644 given the Commission written notice of than one account (including trust (March 25, 2002), 67 FR 15440 (April 1, 2002) (order approving File No. SR–NYSE–2001–53). its intent to file the proposed rule accounts). In addition, member 4 See Securities Exchange Act Release No. 7912 change at least five business days prior organizations may eliminate multiple (October 27, 2000), 65 FR 65736 (November 2, 2000) (amending proxy rules under Act relating to transmissions of reports, statements or 5 15 U.S.C. 78f(b). householding of materials); and 43993 (February 22, other materials to beneficial owners 6 2001), 66 FR 13364 (March 5, 2001) (File No. SR– 15 U.S.C. 78f(b)(5). having the same address, provided they NYSE–01–03) (amending NYSE rules to conform to 7 15 U.S.C. 78f(b)(4). comply with applicable SEC rules with the Commission’s rules on householding of 8 15 U.S.C. 78s(b)(3)(A). respect thereto (see SEC Rule 14b–1 materials). 9 17 CFR 240.19b–4(f)(6).
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to the filing date of the proposed rule arguments concerning the foregoing, I. Self-Regulatory Organization’s change.10 including whether the proposed rule Statement of the Terms of Substance of A proposed rule change filed under change is consistent with the Act. the Proposed Rule Change Rule 19b–4(f)(6) normally does not Persons making written submissions The Exchange proposes to extend its become operative prior to 30 days after should file six copies thereof with the ‘‘Enhanced Size Pilot’’ (the ‘‘Pilot’’) the date of filing. However, pursuant to Secretary, Securities and Exchange 11 until October 31, 2002. The Exchange Rule 19b–4(f)(6)(iii), the Commission Commission, 450 Fifth Street, NW, also proposes to add 17 new options to may designate a shorter time if such Washington, DC 20549–0609. Copies of the Pilot and to amend the definition of action is consistent with the protection the submission, all subsequent ‘‘deep-in-the-money’’ options that are of investors and public interest. The amendments, all written statements excluded from the Pilot. The text of the Amex has requested that the with respect to the proposed rule rule change is available at the Office of Commission waive the 30-day pre- change that are filed with the the Secretary of the Exchange and at the operative waiting period. The Amex Commission, and all written Commission. believes that acceleration of the communications relating to the operative date will permit the proposed rule change between the II. Self-Regulatory Organization’s immediate harmonization of exchange Commission and any person, other than Statement of the Purpose of, and fee schedules for the transmission of those that may be withheld from the Statutory Basis for, the Proposed Rule shareholder communications and, thus, public in accordance with the Change will ease member firm compliance provisions of 5 U.S.C. 552, will be In its filing with the Commission, the burdens. In addition, the Amex believes available for inspection and copying in ISE included statements concerning the that the Commission has recently the Commission’s Public Reference purpose of and basis for the proposed considered all issues raised by the Room. Copies of such filing will also be rule change and discussed any Amex’s filing in connection with its available for inspection and copying at comments it received on the proposed approval of the NYSE’s proposal. the principal office of the Amex. All rule change. The text of these statements The Commission, consistent with the submissions should refer to File No. may be examined at the places specified protection of investors and the public SR–Amex–2002–51 and should be in Item IV below. The ISE has prepared interest, has waived the thirty-day submitted by July 26, 2002. summaries, set forth in Sections A, B, operative date requirement for this For the Commission, by the Division of and C below, of the most significant proposed rule change, and has aspects of such statements. determined to designate the proposed Market Regulation, pursuant to delegated 14 rule change as operative as of the date authority. A. Self-Regulatory Organization’s of filing to allow the Amex to Jill M. Peterson, Statement of the Purpose of, and implement its revised proxy fee Assistant Secretary. Statutory Basis for, the Proposed Rule schedule immediately.12 The [FR Doc. 02–16848 Filed 7–3–02; 8:45 am] Change Commission notes that it has already BILLING CODE 8010–01–P 1. Purpose considered and addressed issues that may be raised by this proposal when it The purpose of the proposed rule approved similar proposals by the SECURITIES AND EXCHANGE change is to extend and expand the NYSE.13 The Commission further notes COMMISSION Exchange’s Enhanced Size Pilot. On that this proposal will allow for April 25, 2002, the Commission consistency in proxy fees between the approved the Pilot, requiring market [Release No. 34–46129; File No. SR–ISE– makers to quote in larger size for 19 of Amex and the NYSE. At any time 2002–17] within 60 days of the filing of the the 25 most-actively-traded options.3 This is currently a three-month Pilot proposed rule change, the Commission Self-Regulatory Organizations; Notice scheduled to expire on July 25, 2002. may summarily abrogate such rule of Filing and Immediate Effectiveness The initial analysis of trading pursuant change if it appears to the Commission of Proposed Rule Change by the to the Pilot indicates: the average size of that such action is necessary or International Securities Exchange, Inc. the ISE’s quotations in these options has appropriate in the public interest, for To Extend Its Enhanced Size Pilot the protection of investors, or otherwise increased; there has been no adverse in furtherance of the purposes of the June 26, 2002. effect on quotation spreads; and ISE Act. market share has increased in these Pursuant to section 19(b)(1) of the options. IV. Solicitation of Comments Securities Exchange Act of 1934 1 2 Based on these initial, though limited Interested persons are invited to (‘‘Act’’) and Rule 19b–4 thereunder, results, the Exchange proposes to extend submit written data, views and notice is hereby given that on June 19, the Pilot for an additional three months, 2002, the International Securities through October 31, 2002. ISE also Exchange, Inc. (‘‘ISE’’ or ‘‘Exchange’’) 10 As required under Rule 19b–4(f)(6)(iii), the proposes to increase the Pilot to include Exchange provided the Commission with written filed with the Securities and Exchange 17 additional options out of the 50 notice of its intent to file the proposed rule change Commission (‘‘Commission’’) the most-active options: Banc of America; at least five business days prior to the filing date. proposed rule change as described in 11 Ciena; Dell; Fannie Mae; Motorola; 17 CFR 240.19b–4(f)(6)(iii). Items I, II, and III below, which Items 12 Merrill Lynch; Nvidia; Xilinx; For the purposes only of accelerating the have been prepared by the ISE. The operative date of this proposal, the Commission has Amazon.com; Halliburton; Nextel considered the proposed rules impact on efficiency, Commission is publishing this notice to Communications; J.P. Morgan Chase; competition, and capital formation. 15 U.S.C. 78c(f) solicit comments on the proposed rule ADC Telecommunication; Best Buy; 13 See Securities Exchange Act Release Nos. change from interested persons. 45644 (March 25, 2002), 67 FR 15440 (April 1, Calpine; General Motors; and Hewlett 2002) (order approving File No. SR–NYSE–2001– 53); and 43993 (February 22, 2001), 66 FR 13364 14 17 CFR 200.30–3(a)(12). 3 Securities Exchange Act Release No. 34–45823 (March 5, 2001) (order approving File No. SR– 1 15 U.S.C. 78s(b)(1). (April 25, 2002); 67 FR 22143 (May 2, 2002) (File NYSE–01–03). 2 17 CFR 240.19b–4. No. SR–ISE–20010–23).
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Packard. We have determined to include B. Self-Regulatory Organization’s For the Commission, by the Division of these particular options in the Pilot Statement on Burden on Competition Market Regulation, pursuant to delegated 7 based on recommendations by our authority. market makers. The ISE believes that the proposed Margaret H. McFarland, rule change does not impose any burden Deputy Secretary. In all other respects, except one, the on competition that is not necessary or Pilot will remain unchanged. For [FR Doc. 02–16772 Filed 7–3–02; 8:45 am] appropriate in furtherance of the BILLING CODE 8010–01–P Primary Market Makers (‘‘PMMs’’), the purposes of the Act. minimum size for quotes will continue to be 100 contracts for customers and 50 C. Self-Regulatory Organization’s Statement on Comments on the SECURITIES AND EXCHANGE contracts for broker-dealers, although COMMISSION this enhanced quotation size Proposed Rule Change Received From requirement will not affect the PMM’s Members, Participants, or Others [Release No. 34–46141; File No. SR–NASD– 2002–01] obligation under ISE Rule 803(c)(1) to No written comments were solicited disseminate a quotation of at least 10 or received with respect to the proposed Self-Regulatory Organizations; contracts when the quotation consists, rule change. National Association of Securities in part, of a customer order for less than Dealers, Inc.; Order Approving III. Date of Effectiveness of the 10 contracts. For Competitive Market Proposed Rule Change and Proposed Rule Change and Timing for Makers, the size requirements will Amendment No. 1 thereto and Notice Commission Action continue to be half of the PMM of Filing and Order Granting requirement: 50 contracts for customers, Accelerated Approval of Amendment 25 contracts for broker-dealers. The Because the foregoing rule change: (i) Does not significantly affect the No. 2 to the Proposed Rule Change by enhanced broker-dealer size will not the National Association of Securities apply to executions against other market protection of investors or the public interest; (ii) does not impose any Dealers, Inc. Relating to the Automatic makers, where the minimum size would Refreshing of Quotations in Nasdaq’s continue to be one contract. significant burden on competition; (iii) does not become operative for 30 days SuperMontage System and the These enhanced size requirements from the date of filing; and (iv) the Withdrawal of Market Makers That Fail will apply only to the options series in Exchange provided the Commission to Maintain a Clearing Relationship the three months closest to expiration. with notice of its intent to file the June 28, 2002. Moreover, the pilot will not apply to proposed rule change at least five days On January 3, 2002, the National ‘‘deep-in-the-money’’ options, or an prior to the filing date, the proposed Association of Securities Dealers, Inc. option in the last three days of that rule change has become effective (‘‘NASD’’ or ‘‘Association’’), through its option’s trading (that is, the pilot will pursuant to section 19(b)(3)(A) of the subsidiary, the Nasdaq Stock Market, not apply for the last three days of Act 5 and Rule 19b–4(f)(6) 6 thereunder. trading during an option series’ expiry Inc. (‘‘Nasdaq’’) filed with the Securities week). In the one change to the Pilot, IV. Solicitation of Comments and Exchange Commission ISE proposes to amend the definition of (‘‘Commission’’), pursuant to section Interested persons are invited to 19(b)(1) of the Securities Exchange Act ‘‘deep-in-the-money.’’ Currently, the submit written data, views, and rule excludes options that are deep-in- of 1934 (‘‘Act’’),1 and Rule 19b–4 arguments concerning the foregoing, thereunder,2 a proposed rule change to the-money, with the definition based on including whether the proposed rule the number of pricing intervals a strike amend NASD Rules 4710(b)(5) and change is consistent with the Act. 4619(c) to modify the procedures for is from the at-the-money strike. ISE Persons making written submissions proposes to change this by defining refreshing exhausted market maker should file six copies thereof with the quotes in, and withdrawing market ‘‘deep-in-the-money’’ to mean options Secretary, Securities and Exchange with strike prices that are in the money makers that fail to maintain proper Commission, 450 Fifth Street, NW, clearing arrangements from, Nasdaq’s by 12 percent or more in relation to the Washington, DC 20549–0609. Copies of price of the underlying stock. This future Order Display and Collector the submission, all subsequent Facility (‘‘NNMS’’ or ‘‘SuperMontage’’). change to the definition is based on amendments, all written statements market makers’ experience trading Specifically, Nasdaq proposes to with respect to the proposed rule reduce from 3 minutes to 30 seconds the under the Pilot today, and ISE believes change that are filed with the that this amended definition will reduce amount of time that a market maker can Commission, and all written leave its bid or offer quotation at zero market makers’ exposure to risk, while communications relating to the continuing to apply the Pilot to options before SuperMontage begins its proposed rule change between the automatic quote refresh process. The representing over two-thirds of all Commission and any person, other than trading volume. process would only operate against the those that may be withheld from the single bid or offer side of a quotation 2. Statutory Basis public in accordance with the that has been reduced to zero through provisions of 5 U.S.C. 552, will be executions. If there are no available The basis under the Act for this available for inspection and copying in quotes from which to determine a proposed rule change is the requirement the Commission’s Public Reference refresh price, SuperMontage would 4 under Section 6(b)(5) that an exchange Room. Copies of such filing also will be refresh the exhausted side of a quote to have rules that are designed to remove available for inspection and copying at a normal unit of trading at a price level impediments to and perfect the the principal office of the ISE. All that is one penny inferior to the lesser mechanism for a free and open market submissions should refer to File No. of either: (a) The last valid displayed and a national market system, and, in SR–ISE–2002–17 and should be inside bid/offer in the security before all general, to protect investors and the submitted by July 26, 2002. public interest. 7 17 CFR 200.30–3(a)(12). 5 15 U.S.C. 78s(b)(3)(A). 1 15 U.S.C. 78s(b)(1). 4 15 U.S.C. 78f(b)(5). 6 17 CFR 240.19b–4(f)(6). 2 17 CFR 240.19b–4.
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such bids/offers were exhausted, or (b) and, in general, to protect investors and monitor the use of the system defaults the market maker’s last displayed bid/ the public interest. by market makers to ensure that they do offer. If the resulting bid/offer quote The Commission believes that the not become a surrogate for meaningful would create a locked or crossed proposed rule change, as amended, market making, and that the NASD will market, NNMS would instead re-open should assist market makers in reevaluate the penalties against market the market maker’s bid/offer quote at a maintaining two-sided quotes and makers for failure to properly maintain price that is one penny inferior to the facilitate their continued participation two-sided quotes if there is a decline in unexchanged contra side of the market. in Nasdaq. By reducing the amount of the overall quality of market making, Finally, Nasdaq proposes to suspend time, from 3 minutes to 30 seconds, that particularly during market volatility. from trading on SuperMontage market a quote is in a closed state and by only It is therefore ordered, pursuant to makers that fail to maintain a clearing closing out the side of the quote that has section 19(b)(2) of the Act,12 that the relationship. Once the market maker been zeroed out, the revised procedures proposed rule change, as amended (File regains a clearing relationship, the should help ensure the presence of No. SR–NASD–2002–01) be, and it suspend status would be lifted, and the liquidity providers, while preserving hereby is, approved. priority for orders that may be market maker would be free to For the Commission, by the Division of participate again. represented by the unexhausted side of Market Regulation, pursuant to delegated the quote. Further, Nasdaq, by authority.13 Nasdaq submitted Amendment No. 1 establishing procedures for refreshing on March 5, 2002.3 The proposed rule Jill M. Peterson, an exhausted quote where there are no Assistant Secretary. change and Amendment No. 1 thereto available quotes, has addressed any were published for comment in the potential instance in which trading [FR Doc. 02–16847 Filed 7–3–02; 8:45 am] Federal Register on April 8, 2002.4 The interest is not being displayed. This BILLING CODE 8010–01–M Commission received no comments on should ensure that quotes may be the proposal. Nasdaq submitted refreshed in all instances. Finally, SECURITIES AND EXCHANGE Amendment No. 2 on June 13, 2002.5 Nasdaq’s proposal to suspend market COMMISSION The Commission finds that the makers who fail to maintain clearing proposed rule change, as amended, is relationships from participating in the [Release No. 34–46144; File No. SR–NASD– consistent with the requirements of the SuperMontage should encourage market 2002–46] makers to maintain appropriate clearing Act and the rules and regulations Self-Regulatory Organizations; Order relationships at all times. thereunder applicable to a national Approving Proposed Rule Change and securities association 6 and, in The Commission finds good cause for accelerating approval of Amendment Notice of Filing and Order Granting particular, the requirements of section Accelerated Approval to Amendment 15A of the Act 7 and the rules and No. 2 to the proposed rule change prior to the thirtieth day after the date of Nos. 2 and 3 to the Proposed Rule regulations thereunder. The Change by the National Association of Commission finds specifically that the publication in the Federal Register, pursuant to section 19(b)(2) of the Act.9 Securities Dealers, Inc., Relating to the proposed rule change, as amended, is Rule 6200 Series or the TRACE Rules consistent with section 15A(b)(6) of the The Commission finds that Amendment Act,8 which requires, among other No. 2 merely clarifies the proposed rule June 28, 2002 things, that the rules of an association change by explaining that references to I. Introduction be designed to prevent fraudulent and automatic adjustment of quotes at manipulative acts and practices, to ‘‘inferior’’ prices refer to both bid and On April 3, 2002, the National promote just and equitable principles of offer prices, with an inferior price Association of Securities Dealers, Inc. trade, to foster cooperation and adjustment on the bid side of the quote (‘‘NASD’’ or ‘‘Association’’) filed with coordination with persons engaged in resulting in a higher offer price, and that the Securities and Exchange references to a ‘‘clearing relationship’’ regulating, clearing, settling, processing Commission (‘‘SEC’’ or ‘‘Commission’’) refer to a clearing relationship between information with respect to, and a proposed rule change pursuant to a firm and a registered clearing agency facilitating transactions in securities, Section 19(b)(1) of the Securities or, alternatively, with a member of such Exchange Act of 1934 (‘‘Act’’) 1 and Rule an agency. Accordingly, the 19b–4 thereunder 2 to amend the Rule 3 See Letter from Thomas P. Moran, Associate Commission believes that granting General Counsel, Nasdaq, to Katherine A. England, 6200 Series of the Rules of the NASD, Assistant Director, Division of Market Regulation accelerated approval of Amendment No. which provides for the reporting and (‘‘Division’’), Commission, dated March 4, 2002 2 is appropriate and consistent with dissemination of transaction (‘‘Amendment No. 1’’). 10 section 15A(b)(6) and 19(b)(2) of the information in eligible corporate debt 4 See Securities Exchange Act Release No. 45671 Act 11 in that it should prevent (March 28, 2002), 67 FR 16784. securities (‘‘TRACE Rules’’). The NASD 5 See Letter from Thomas P. Moran, Associate fraudulent and manipulative acts and submitted Amendment No. 1 to the General Counsel, Nasdaq, to Marc F. McKayle, practices, promote just and equitable proposed rule change on May 13, 2002.3 Special Counsel, Division, Commission, dated June principles of trade, foster cooperation 13, 2002 (‘‘Amendment No. 2’’). In Amendment No. and coordination with persons engaged 2, Nasdaq made two points of clarification: (1) 12 15 U.S.C. 78s(b)(2). References to automatic adjustment of quotes at in regulating, clearing, settling, 13 17 CFR 200.30–3(a)(12). ‘‘inferior’’ prices refer to both bid and offer prices, processing information with respect to, 1 15 U.S.C. 78s(b)(1). with an inferior price adjustment on the bid side and facilitating transactions in 2 17 CFR 240.19b–4. of the quote resulting in a lower bid price, and an 3 In Amendment No. 1, the NASD revised the inferior price adjustment on the offer price resulting securities, and, in general, protect investors and the public interest. language of the proposed rule change regarding the in a higher offer price, (2) references to a ‘‘clearing time frame in which the managing underwriter relationship’’ refer to a clearing relationship As stated previously in the order must deliver CUSIP information to the TRACE between a firm and a registered clearing agency or, approving SuperMontage, the Operations Center, and a member’s obligations in alternatively, with a member of such an agency. Commission wishes to again emphasize instances in which the member is not required to 6 In approving this proposed rule change, the that it fully expects that the NASD will report yield data to the NASD. See letter from Commission notes that it has considered the Barbara Z. Sweeney, Senior Vice President and proposed rule’s impact on efficiency, competition, Corporate Secretary, NASD Regulation, to Katherine and capital formation. 15 U.S.C. 78c(f). 9 15 U.S.C. 78s(b)(2). A. England, Assistant Director, Division of Market 7 15 U.S.C. 78o–3. 10 15 U.S.C. 78o–3(b)(6). Regulation (‘‘Division’’), Commission, dated May 8 15 U.S.C. 78o–3 (b)(6). 11 15 U.S.C. 78s(b)(2). 13, 2002 (‘‘Amendment No. 1’’).
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Notice of the proposed rule change and concurrently with approval of this applies; and (5) a brief description of the Amendment No. 1 thereto was proposal.11 issue. The NASD represents that the published for comment in the Federal The TRACE Rules will become additional information will enable it to Register on May 22, 2002.4 The effective on July 1, 2002. On that day, verify the accuracy of the CUSIP Commission received one comment members must begin to report numbers provided by the underwriters. letter, from The Bond Market transactions in TRACE-eligible In Amendment No. 3, the NASD Association (‘‘TBMA’’), regarding the securities, and the TRACE system will proposed to amend the text of Rule proposal.5 begin the dissemination of certain reported information. 6260(b) as submitted in Amendment No. On June 25, 2002, the NASD filed 2. When an intra-day offering occurs at Amendment No. 2 to the proposed rule III. Description of the Proposal or after 5:00 p.m., the underwriter will change and a response to TBMA’s be required to provide the CUSIP 6 The proposed amendments to the Letter. On June 26, 2002, the NASD TRACE Rules are intended to make number and additional information to filed Amendment No. 3 to the proposed technical changes to the TRACE Rules the TRACE Operations Center not later rule change. This order approves the and clarify certain provisions of those than 5:00 p.m. on the next business day. proposed rule change, as amended by Rules prior to implementation of In addition, the NASD proposed to Amendment No. 1, accelerates approval TRACE. Specifically, the proposed of Amendment Nos. 2 and 3, and allow the underwriter to provide NASD amendments: extend the reporting with information other than the six solicits comments from interested period from one hour to one hour and persons on Amendment Nos. 2 and 3. listed items in Rule 6260(b) to comply 15 minutes; incorporate certain FIPS with the notification requirement, II. Background standards in Rule 6250; require because industry participants have members to provide new CUSIP On January 23, 2001, the Commission stated that some of the required numbers to TRACE at an earlier time information, such as coupon rate and approved the TRACE Rules to establish under Rule 6260; clarify existing maturity, may not have been fixed at the a corporate bond trade reporting and provisions in the Rule 6200 Series, time the underwriter obtains the CUSIP transaction dissemination facility and to especially Rule 6210(a) regarding number for the security and would eliminate Nasdaq’s Fixed Income ‘‘TRACE-eligible securities’’ and certain Pricing System (‘‘FIPS’’).7 Subsequently, reporting provisions in Rule 6230(c) and provide it to the NASD. In light of this, on March 5, 2001, the Commission (d); and make other minor modifications the NASD proposed to allow approved amendments to the TRACE to the existing requirements. These underwriters to submit alternative types Rules requiring trade reports in amendments are discussed in greater of information, as specified by the transactions between two NASD detail in the Commission’s notice NASD, if necessary. members to be filed by each member.8 soliciting public comment on this IV. Discussion In addition, on January 3, 2002, the proposal.12 Commission issued a notice stating that In Amendment No. 1, the NASD After careful consideration, the certain other amendments to the TRACE proposed to amend Rule 6260 to require Commission finds that the proposed 9 Rules had become effective on filing. that the managing underwriter of any rule change, as amended by Finally, on May 6, 2002, the NASD filed newly issued TRACE-eligible security Amendments Nos. 1, 2, and 3, is a proposed rule change to establish fees provide CUSIP data to the TRACE 10 consistent with the Act and the rules for the use of TRACE. On June 26, Operations Center by 5:00 p.m. on the and regulations promulgated thereunder 2002, the NASD amended that filing to business day preceding the day the applicable to a registered securities implement the TRACE fee structure on registration statement will become association and, in particular, with the a pilot basis. The Commission is effective or, if registration is not requirements of section 15A(b)(6).13 approving the TRACE fee filing, and required, the day the securities will be Specifically, the Commission finds that granting accelerated approval of the priced initially (‘‘prior day CUSIP approval of the proposed rule change is amendment regarding pilot status, notification’’). In Amendment No. 2, the NASD consistent with section 15A(b)(6) of the 4 See Securities Exchange Act Release No. 45943 proposed an exception to prior day Act in that it is designed to prevent (May 16, 2002), 67 FR 36049. CUSIP notification for underwriters that fraudulent and manipulative acts and 5 See letter from Michel de Konkoly Thege, Vice offer securities on an intra-day basis practices, to promote just and equitable President and Associate General Counsel, TBMA, to principles of trade, and in general, to Jonathan G. Katz, Secretary, Securities and under Rule 415 under the Securities Act Exchange Commission, dated June 12, 2002 of 1933 (‘‘Securities Act’’) or Rule 144A protect investors and the public (‘‘TBMA’s Letter’’). TBMA’s Letter is described in under the Securities Act. In such interest.14 The TRACE Rules, as Section IV, infra. offerings, the managing underwriter originally approved by the Commission 6 Amendment No. 2 is described in Section III, must obtain the CUSIP number and on January 23, 2001 and as further infra. 7 See Securities Exchange Act Release No. 43873 provide it to the TRACE Operations amended, dramatically improve the (January 23, 2001), 66 FR 8131 (January 29, 2001) Center by 5:00 p.m. on the day the transparency of the corporate bond (File No. SR–NASD–1999–65). FIPS, which was securities are priced and offered. The market. The Commission believes that operated by Nasdaq, collected transaction and NASD also proposes to require the the NASD’s clarification of the TRACE quotation information on domestic, registered, non- convertible high-yield corporate bonds. underwriter to provide the following Rules in this proposed rule change will 8 See Securities Exchange Act Release No. 44039 descriptive information relating to the enable it to implement TRACE more (March 5, 2001), 66 FR 14234 (March 9, 2001) (File security to the TRACE Operations effectively, thus enhancing investor No. SR–NASD–2001–04). Center in addition to the CUSIP number: 9 See Securities Exchange Act Release No. 45229 (1) Issuer name; (2) coupon rate; (3) (January 3, 2002), 67 FR 1255 (January 9, 2002) (File No. SR–NASD–2001–91). maturity; (4) whether Rule 144A 13 15 U.S.C. 78o–3(b)(6). 10 See Securities Exchange Act Release No. 45960 14 In approving this proposed rule change, the (May 17, 2002), 67 FR 36654 (May 24, 2002) 11 See Securities Exchange Act Release No. [ ], Commission has considered the proposal’s impact (Commission notice seeking public comment on (June 28, 2002). on efficiency, competition, and capital formation. NASD proposal). 12 See supra, note 4. 15 U.S.C. 78c(f).
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protection by facilitating the availability by the end of the same business day on industry that night. The NASD stated of TRACE. which the takedown occurs. that it will make the final determination As previously noted, the Commission The NASD noted in its response that whether a debt security is TRACE- received one comment letter, from the deadline for providing CUSIPs was eligible. TBMA, on the proposed rule change.15 moved back to immediately precede the In Amendment No. 3, the NASD Although TBMA’s Letter generally actual offering day to address regulatory proposed to amend the text of Rule supported the latest amendments, it concerns that the audit trail, especially 6260(b) as submitted in Amendment No. raised a number of specific concerns. As for those bonds that trade infrequently 2. When an intra-day offering occurs on a result, the NASD entered into after the initial offering, would contain or after 5:00 p.m., the underwriter will discussions with TBMA aimed at substantial gaps if the underwriter was be required to provide the CUSIP responding to its comments. On June 25, not required to provide the CUSIP until number and additional information to 2002, the NASD filed Amendment No. the end of the first day of trading, with the TRACE Operations Center not later 2 to the proposal to address the the result that all first day trading would than 5:00 p.m. on the next business day. concerns articulated in TBMA’s Letter. not be reported. In addition, price In addition, the NASD proposed to TBMA’s Letter noted that the transparency would be reduced because allow the underwriter to provide the proposed rule change contained a the first day of trading in a debt security NASD with information other than the number of useful clarifications is often its most active day. six listed items in Rule 6260(b) to concerning the workings of the TRACE In response to TBMA’s comments, the comply with the notification Rules and reflected certain suggestions NASD proposed Amendment No. 2 requirement, because industry that TBMA had made in previous providing for an exception to the prior participants have stated that some of the comment letters on the TRACE Rules day CUSIP notification in Rule 6260 for required information, such as coupon and in discussions with the staff of the intra-day offerings. (These offerings are rate and maturity, may not have been NASD. Nonetheless, TBMA urged generally referred to as ‘‘off-the-shelf’’ or fixed at the time the underwriter obtains further changes to the requirement ‘‘shelf’’ offerings.) The NASD stated that the CUSIP number for the security and applicable to managing underwriters to when securities are previously would provide it to the NASD. In light registered under Rule 415 of the provide CUSIPs for new issues, of this, the NASD proposed to allow Securities Act or are unregistered requested further clarification and underwriters to submit alternative types securities that may be resold pursuant to guidance on definitional matters, and of information, as specified by the Rule 144A of the Securities Act,16 an requested the NASD to resolve pending NASD, if necessary. issuer and an underwriter may decide to The Commission believes that legal, operational and technology take advantage of favorable market Amendment Nos. 2 and 3 address the matters relating to implementation. conditions and offer the issuer’s debt primary concerns of TBMA with respect Rule 6260 as originally adopted stated securities on that day. The NASD stated to certain intra-day offerings. The that the lead underwriter of any newly that when such intra-day offerings proposed changes will allow the NASD issued TRACE-eligible security was occur, it would be impossible for an to balance the interests of issuers in required to provide a CUSIP number to underwriter to price, offer and sell such obtaining expedited, well-timed access the TRACE Operations Center ‘‘no later securities and comply with the prior to the capital markets and those of than on the effective date of the day CUSIP notification. The NASD investors in enabling the NASD to offering.’’ As initially filed, this noted that it was not its intent to inhibit collect a more complete audit trail (and, proposed rule change revised that same-day access to the capital markets. when dissemination occurs, obtaining requirement to require the managing Therefore, the NASD proposed to except more complete price information). underwriter to provide the CUSIP ‘‘not from the prior day CUSIP notification TBMA’s Letter also requested further later than 5:00 p.m. on the first business intra-day unregistered offerings for Rule clarification and guidance on various day following the day that the 144A resales and shelf offerings. In such definitional matters under the TRACE registration statement becomes effective, offerings, the underwriter must obtain Rules and items to be submitted in trade or, if registration is not required, the day the CUSIP number and provide it to the reports. TBMA noted that the term that the securities are first priced.’’ TRACE Operations Center not later than ‘‘money market instrument’’ is Amendment No. 1 required the CUSIP 5:00 p.m. on the business day that the important because it defines one to be provided to the TRACE Operations securities are priced and offered. category of instruments that are Center not later than 5:00 p.m. on the In Amendment No. 2, the NASD also excluded from the definition of TRACE- business day preceding such day. proposed to amend Rule 6260 to require eligible security. For the purpose of the TBMA stated that frequently an the underwriter to provide information proposed exclusion, Rule 6210(a) of the issuer’s decision to take advantage of a in addition to the CUSIP number to the TRACE Rules defines a money market market window and the pricing of an TRACE Operations Center. The instrument as a debt instrument that ‘‘at offering occur within the same day. additional information is the issuer’s issuance has a maturity of one year or TBMA stated that Rule 6260 as name, the coupon rate of the security, less.’’ TBMA recommended that the amended by Amendment No. 1 would the maturity, Rule 144A applicability, definition of money market instrument prevent the issuer from pricing such a and a brief description of the issue (e.g., in Rule 6210(a) track the definition of transaction until the next business day. senior subordinated note, senior note). Eligible Security contained in Rule 2a– TBMA suggested that Rule 6260 should The NASD represented that this 7(a)(10) under the Investment Company be further revised to deal with the case information will allow the TRACE Act of 1940. of same-day takedowns under shelf Operations Center to compare the In its response, the NASD stated that registration statements and Rule 144A CUSIP and related information about it did not believe that it is appropriate documentation. In such cases, TBMA the security with information available to revise the definition of money market suggested that Rule 6260 should require from vendors, and verify that the CUSIP instrument in the TRACE Rules to track a managing underwriter to make numbers are accurate before the NASD the definition of ‘‘Eligible Security’’ reasonable efforts to provide the CUSIP disseminates the CUSIP numbers to the under Rule 2a–7(a)(10). First, the NASD noted that the definition of ‘‘Eligible 15 See supra, note 5. 16 17 CFR 230.415; 17 CFR 230.144A. Security’’ is quite complex, and that
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making use of the definition is in which the price and yield of all V. Accelerated Approval of inconsistent with the NASD’s goal to transactions can be compared. The Amendment Nos. 2 and 3 clearly delineate those securities subject Commission believes that the NASD is The Commission finds good cause to to the TRACE Rules. In addition, the correct in requiring that a party report approve Amendment Nos. 2 and 3 to the NASD said that, with respect to a the lower of yield to call or yield to proposal prior to the thirtieth day after particular security, Rule 2a–7(a)(10) maturity because such yields are the the date of publication of notice of filing applies differently over time. The NASD benchmarks for comparing bonds. thereof in the Federal Register. Rule noted that the definition in Rule 2a– TBMA expressed concern that the 6260 would require most but not all 7(a)(10) may apply to long and medium NASD’s proposal forces reporting firms underwriters to provide CUSIP numbers term securities as they approach to incur unnecessary expenses by to the NASD by 5 p.m. Eastern Time on maturity. Under the definition proposed requiring that transactions, including the business day prior to the initial sale by the NASD, eligibility under TRACE the two transactions that occur in an requires a single determination for the ‘‘agency cross,’’ must be reported of securities. This prior day CUSIP life of the security. Thus, the NASD separately. The NASD responded that notification was previously published stated that applying the definition in the TRACE Rules require the reporting and subject to comment. The proposed Rule 2a–7 would not clarify or simplify of each transaction and that the exception to the prior day CUSIP a determination of whether a debt requirement that both transactions be notification provides that underwriters instrument is TRACE-eligible or reported individually is in furtherance that are offering securities on an intra- excluded as a money market instrument of a regulatory goal. The NASD stated day basis shall provide CUSIP numbers and would not make it consistent with that the TRACE system was so designed to the NASD not later than 5 p.m. instruments that are eligible for money based on input from market surveillance Eastern Time on the same day that market funds. In addition, the NASD and market regulation personnel, and pricing and sales occur, provided that if noted that the term ‘‘Eligible Security’’ that it was determined that, in some such securities are priced and offered on in the Investment Company Act and the instances, ‘‘single’’ trade reporting may or after 5 p.m., the member shall term ‘‘TRACE-eligible security’’ in the raise issues, and creates gaps in the provide the information not later than 5 TRACE Rules are applied in different regulatory audit trail. The NASD p.m. on the next business day. Although contexts. The Commission agrees, and represented that in creating a new bond not previously published, the proposal does not believe that the definition of reporting system, it determined not to is an appropriate and narrowly drafted money market instrument in the TRACE incorporate certain features that may exception to the previously published Rules should be revised. hinder the creation of a complete audit proposal and responds to the concerns TBMA stated that the NASD’s trail and therefore hinder efficient that Rule 6260 would negatively impact exclusion of clearing brokers from the oversight of the market. For these issues that are offered and sold in the defined term ‘‘parties to the transaction’’ reasons, the NASD determined that the market on an intra-day basis. is unclear. In response, the NASD stated agency cross transaction should be Amendment No. 2 also requires that that it excluded ‘‘clearing broker’’ from reported as two transactions. The an underwriter supply to the TRACE the definition to indicate that a broker Commission believes that the NASD’s Operations Center, in addition to the that merely clears a transaction does not decision is reasonable, and is consistent CUSIP number for each newly issued have a reporting obligation under the with the Act. security, the issuer’s name, the coupon TRACE Rules. The NASD represented TBMA also asked that the NASD rate, the maturity, a brief description of that for purposes of TRACE, a broker address and clarify certain interpretive the security and whether the issue is that performs only a clearing function is issues, which include TRACE eligibility being resold pursuant to Rule 144A. not considered a party to the transaction questions, the trade reporting Amendment No. 3 allows the and should not submit a transaction obligations of broker-dealers that are underwriter to provide the TRACE report, unless the broker has also alternative trading systems (‘‘ATSs’’), Operations Center alternative types of performed the executing function, or the the identification of transactions that do information, as specified by the NASD, clearing broker is reporting a transaction not reflect secondary market pricing, if necessary. The NASD believes, and for an actual party to the transaction and others. The NASD responded that the Commission agrees, that the pursuant to an agreement to do so (e.g., these and other interpretive issues will acceleration of the approval of these where a clearing broker, pursuant to a be addressed in NASD Notices to provisions are necessary to protect privately negotiated agreement with a Members. In addition, TBMA requested customers and the integrity of the audit correspondent, reports on behalf of the that the NASD address several trail. The NASD will use the correspondent whenever the operational and technical issues, and information to promptly determine if correspondent has a reporting obligation respond to contractual and testing the CUSIP numbers submitted are under TRACE). issues in a manner that would notify the accurate before the NASD loads the new TBMA stated that requiring a party to entire industry. The NASD responded CUSIP numbers in the TRACE system report the lower of yield to call or yield that it addresses the operational, and transmits such numbers to the to maturity is confusing. The NASD technical and testing issues raised in industry. If the CUSIP numbers are responded that it believes that requiring TBMA’s Letter on the TRACE website, inaccurate, transaction activity will be the reporting of the lower of these two which is http://www.nasd.com/ incorrect either because a report reflects yields is appropriate and necessary for trace.asp, and that it has responded to the wrong security or a report was the protection of investors and the issues raised in agreements by revising rejected by the TRACE system. integrity of the debt markets. The its agreements.17 For these reasons, the Commission Commission agrees. The Commission finds good cause, consistent with believes that the data reported for each 17 In this connection the Commission emphasizes Sections 15A(b)(6) and 19(b)(2) of the trade as ‘‘yield’’ must be comparable to its statement in the original TRACE approval order, Act, to accelerate approval of the data to: (1) Inform buyers and Securities Exchange Act Release No. 43873 (January 23, 2001), 66 FR 8131 (January 29, 2001), that sellers, including public investors, of members that provide data to TRACE are ‘‘free to otherwise, restrict a member’s ability to distribute the price and yield of comparable debt sell or give the same information to information data that is has reported to TRACE to information securities; and (2) create an audit trail vendors.’’ The NASD may not, by contract or vendors.
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Amendment Nos. 2 and 3 to the SECURITIES AND EXCHANGE solicits comments from interested proposed rule change. COMMISSION persons on Amendment No. 3. VI. Solicitation of Comments [Release No. 34–46145; File No. SR–NASD– II. Background 2002–63] On January 23, 2001, the Commission Interested persons are invited to approved the Rule 6200 Series submit written data, views, and Self-Regulatory Organizations; Order Approving Proposed Rule Change and providing for reporting and arguments concerning Amendment Nos. dissemination of transaction 2 and 3, including whether Amendment Amendment Nos. 1 and 2 Thereto, and Notice of Filing and Order Granting information in eligible debt securities Nos. 2 and 3 are consistent with the Act. (‘‘TRACE rules’’).7 Subsequently, on Persons making written submissions Accelerated Approval of Amendment No. 3 Thereto, by the National March 5, 2001, the Commission should file six copies thereof with the Association of Securities Dealers, Inc., approved additional amendments to the Secretary, Securities and Exchange Relating to Proposed Fees for the TRACE rules requiring trade reports in Commission, 450 Fifth Street, NW, Trade Reporting and Compliance transactions between two NASD 8 Washington, DC 20549–0609. Copies of Engine (TRACE) for Corporate Bonds members to be filed by each member. the submission, all subsequent In addition, on January 3, 2002, the amendments, all written statements June 28, 2002. Commission issued a notice stating that certain other amendments to the TRACE with respect to the proposed rule I. Introduction change that are filed with the rules had become effective on filing.9 Commission, and all written On May 6, 2002, the National Finally, on April 3, 2002, the NASD Association of Securities Dealers, Inc. communications relating to the filed a proposed rule change to make (‘‘NASD’’ or ‘‘Association’’) filed with proposed rule change between the certain technical changes to the TRACE the Securities and Exchange Commission and any person, other than rules. The NASD subsequently Commission (‘‘SEC’’ or ‘‘Commission’’) submitted Amendment No. 1 to that those that may be withheld from the a proposed rule change pursuant to filing, and the Commission published public in accordance with the section 19(b)(1) of the Securities notice of the proposal and Amendment provisions of 5 U.S.C. 552, will be Exchange Act of 1934 (‘‘Act’’) 1 and Rule No. 1 thereto.10 The NASD subsequently available for inspection and copying in 19b–4 thereunder 2 to establish fees for submitted Amendment Nos. 2 and 3 to the Commission’s Public Reference use of TRACE. TRACE provides for the that filing. The Commission is Room. Copies of such filing will also be reporting and dissemination of approving that filing, and granting available for inspection and copying at transaction information in eligible accelerated approval of Amendment the principal office of the NASD. All corporate debt securities. The NASD Nos. 2 and 3, concurrently with submissions should refer to File No. submitted Amendment No. 1 to the approval of this proposal.11 SR–NASD–2002–46 and should be proposed rule change on May 16, 2002.3 The TRACE rules will become submitted by July 26, 2002. Notice of the proposed rule change was effective on July 1, 2002. On that day, published for comment in the Federal members must begin to report VII. Conclusion Register on May 24, 2002.4 The NASD transactions in TRACE-eligible submitted Amendment No. 2 to the For the reasons discussed above, the securities, and the TRACE system will proposed rule change on May 28, 2002.5 Commission finds that the proposal is begin the dissemination of certain The Commission received one comment reported information. consistent with the Act and the rules letter, from The Bond Market and regulations thereunder. Association (‘‘TBMA’’), regarding the III. Description of the Proposal It is therefore ordered, pursuant to proposal.6 The proposed rule change establishes section 19(b)(2) of the Act, that the On June 25, 2002, the NASD filed fees for participants and users of the proposed rule change (SR-NASD–2002– Amendment No. 3 to the proposed rule TRACE facility and rescinds the FIPS 46), as amended, be and hereby is change and a response to TBMA’s fees. The proposed fees are divided into approved, and that Amendment Nos. 2 Letter. This order approves the three general categories: (1) System fees and 3 thereto are approved on an proposed rule change, as amended by paid by member firms based on the accelerated basis. Amendment Nos. 1 and 2, accelerates method chosen by the member to report approval of Amendment No. 3, and corporate bond transactions to the For the Commission, by the Division of NASD (members will have several Market Regulation, pursuant to delegated 1 15 U.S.C. 78s(b)(1). 18 options on how to report trades and the authority. 2 17 CFR 240.19b–4. fees will vary accordingly); (2) J. Lynn Taylor, 3 See letter from Barbara Z. Sweeney, Senior Vice President and Corporate Secretary, NASD transaction reporting fees paid by Assistant Secretary. Regulation, to Katherine A. England, Assistant members to file trade reports and cancel [FR Doc. 02–16850 Filed 7–3–02; 8:45 am] Director, Division of Market Regulation or correct trade reports; and (3) market (‘‘Division’’), dated May 16, 2002. Amendment No. BILLING CODE 8010–01–P data fees paid by members and non- 1 corrected a typographical error in the filing. 4 See Securities Exchange Act Release No. 45960 7 (May 17, 2002), 67 FR 36654. See Securities Exchange Act Release No. 43873 (January 23, 2001), 66 FR 8131 (January 29, 2001) 5 See letter from T. Grant Callery, Senior Vice President and General Counsel, NASD, to Katherine (File No. SR–NASD–1999–65). 8 England, Assistant Director, Division, dated May See Securities Exchange Act Release No. 44039 24, 2002. Amendment No. 2 made the language of (March 5, 2001), 66 FR 14234 (March 9, 2001) (File the rule internally consistent and corrected certain No. SR–NASD–2001–04). typographical errors. 9 See Securities Exchange Act Release No. 45229 6 See letter from Michel de Konkoly Thege, Vice (January 3, 2002), 67 FR 1255 (January 9, 2002) (File President and Associate General Counsel, TBMA, to No. SR–NASD–2001–91). Jonathan G. Katz, Secretary, Securities and 10 See Securities Exchange Act Release No. 45943 Exchange Commission, dated June 14, 2002 (May 16, 2002), 67 FR 36049 (May 22, 2002). (‘‘TBMA’s Letter’’). TBMA’s Letter is described in 11 See Securities Exchange Act Release No. 46144, 18 17 CFR 200.30–3(a)(12). Section IV, infra. (June 28, 2002).
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members that use or distribute the data Transaction Reporting Fees. Members real-time TRACE transaction data; (ii) collected through the TRACE system will be charged fees to file transaction BTDS Internal Usage Authorization Fee and disseminated by the NASD. reports and cancel or correct transaction of $500 per month per organization for System Fees. The NASD proposes to reports. The NASD proposes to charge a internal dissemination of real-time charge fees to members who use the trade reporting fee using a sliding scale, TRACE transaction data used in one or TRACE system based on the method the based upon the size of the transaction more of the following ways: internal member selects to input transaction reported. A member will be charged a operational and processing systems, information to the NASD. Under the Trade Reporting Fee on a sliding scale internal monitoring and surveillance proposed rules, members will have ranging from $0.50 to $2.50 per trade systems, internal price validation, three means by which to input based on the size of the reported internal portfolio valuation services, transaction information directly to the transaction. For trades up to and internal analytical programs leading to NASD: (1) A web browser through the including $200,000 par value, members purchase/sale or other trading decisions, Internet, which will be useful primarily will be charged a fee of $0.50 per trade; and other related activities; 13 (iii) BTDS for low-volume firms; (2) a web browser for trades between $201,000 par value External Usage Authorization Fee of using a private data network (‘‘PDN’’); and $999,000 par value, members will $1,000 per month per organization for or (3) a computer-to-computer interface be charged a fee of $0.0025 multiplied dissemination of real-time TRACE (‘‘CTCI’’), which the Association by the number of bonds traded; and for transaction data used in one or more of anticipates will be used primarily by trades of $1,000,000 par value or more, the following ways: repackaging of high volume firms. Members may also members will be charged a fee of $2.50 market data for delivery and choose to report transactions indirectly per trade. dissemination outside the organization, to the NASD through third parties, such The NASD proposes to charge a such as indices or other derivative as vendors, service bureaus, clearing cancel or correct trade fee of $3.00 per products.14 Non-professionals that firms, or the National Securities trade. The NASD also proposes to subscribe to receive real-time TRACE Clearing Corporation (‘‘NSCC’’), which charge an ‘‘as/of’’ trade late fee of $3.00 transaction data will be charged $1.00 will in turn report to the NASD through per trade. Under proposed rule per month, per terminal. In addition, the one of the approved methods described 6230(a)(2), SR–NASD–2002–46, a NASD proposes a fee of $15.00 per above. transaction that is executed after 6:30 month, per subscriber for the daily list p.m. must be reported within the first 1 Members may report transaction fax service that will contain all of the hour and 15 minutes after the open of information manually through a web daily additions, deletions, modifications the market on the following business browser using their own Internet to the list of TRACE-eligible securities. day to be reported on time ‘‘as/of.’’ 12 A Market participants and others who provider. Members using a web browser member shall be charged an ‘‘as/of’’ wish to receive real-time TRACE data will be charged a monthly access fee as trade late fee of $3.00 per transaction for directly from the NASD will be required follows: for the first user ID registered, those transactions reported beyond such to enter into agreements with the NASD. a charge of $85 per month; for the next time frame. To provide firms time to For example, a vendor or broker/dealer two through nine user IDs registered, a adjust to the new reporting system, the firm that wishes to distribute TRACE charge of $75 per month, per such cancel or correct trade fee and ‘‘as/of’’ real-time data externally will be additional user ID; and for ten or more trade late fee will not be charged until required to enter into a vendor user IDs registered, a charge of $70 per the later of October 1, 2002 or 90 days agreement, which among other things month, per user ID from two to ten or after the effective date of TRACE. In will standardize display facilities and more. Members reporting through a web addition, NASD proposes a browse and require the vendor to collect specified browser may elect to report transaction query fee of $0.05 for each returned dissemination fees from its end users for information through a PDN that is page of query beyond the first page. This remittance to the NASD. Vendors or owned and operated by Nasdaq’s feature will allow members to review broker/dealer firms that wish to receive designated network provider, which is their own previously reported data. real-time TRACE data directly from the currently WorldCom, Inc. Members In order to standardize corporate bond NASD and subsequently disseminate choosing to report transaction reporting obligations and minimize real-time TRACE data only internally information directly to the NASD using industry technology burdens, NASD has will also be required to execute a PDN will be charged a $100 per line proposed (as part of the TRACE filing agreements with the NASD, which administration fee per month by the with the Commission) the elimination of among other things, will require firms to NASD. Members should be aware that the separate FIPS system and its related represent that the TRACE real-time data this fee does not include fees that will rules and costs. The TRACE trade will not be disseminated externally. be charged by Nasdaq for services reporting fee will replace the flat fee of provided by its designated network $1.00 per trade currently charged to IV. Discussion provider that will be billed directly by report corporate bonds through FIPS. After careful consideration, the Nasdaq. Market Data Fees. The NASD Commission finds that the proposed Members also may report transaction proposes to charge market professionals rule change is consistent with the Act data through the CTCI operated by who subscribe to receive real-time and the rules and regulations under the Nasdaq for most of its transaction market data as follows: (i) Bond Trade Act applicable to a registered securities reporting facilities. Nasdaq currently Dissemination Service (‘‘BTDS’’) leases dedicated lines from WorldCom, Professional Display Fee of $60 per 13 Under this service, real-time TRACE Inc. and provides direct connection month per terminal for each transaction data may not be used in any interrogation display devices, any systems that from a member firm to the NASD. The interrogation or display device receiving permit end users to determine individual NASD monthly charge for reporting transaction pricing in real-time, or disseminated to through a CTCI is $25 per month, per 12 The NASD has proposed generally to amend any external source. line, whether or not such line is used the reporting period from 1 hour to 1 hour and 15 14 Under this service, real-time TRACE minutes, and this period would apply to transaction data may not be used in any exclusively for TRACE, and does not transactions executed after 6:30 p.m. and reported interrogation display devices or any systems that include Nasdaq charges for its the next morning. That proposal is being approved permit end users to determine individual designated network provider. concurrently with this proposal. transaction pricing in real-time.
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association. In particular, the users who repackage the data for 4. NASD Amendment No. 3 and Commission believes that the proposed delivery outside of the organization. The Response to TBMA’s Letter rule change is consistent with the Commission believes that this use-based 15 In response, the NASD submitted requirement of section 15A(b)(5) that approach is consistent with equitable Amendment No. 3 establishing the the rules of an association provide for distribution of fees. TRACE fees as a six-month pilot the equitable allocation of reasonable 2. Reasonableness program; the NASD also agreed to fees, dues, and other charges among its reassess the fees within six months or members and issuers and other persons The Commission believes that the less after the effective date of TRACE. using its facilities; and the requirement TRACE fee structure is reasonable under 16 In addition, the NASD addressed the of section 15A(b)(6) that the rules of the Act. In its initial filing, the NASD issue of whether the TRACE fees meet the association are not designed to represented that it believes the TRACE the standards set forth in the Act. With permit unfair discrimination between fees are reasonably related to the costs respect to equitable allocation and customers, issuers, brokers, or dealers.17 of developing the new facility and to unfair discrimination, the NASD noted The Commission believes that the fees meeting the estimated operating that it has adopted a sliding scale to allow users great flexibility in how they expenses of the TRACE system. more equitably allocate transaction will interact with the system, and are Specifically, the NASD represented that reporting fees. It noted that its fee scaled according to objective criteria developmental costs of TRACE, to date, structure allows participants to report applied across-the-board to all were roughly $7.2 million. In addition, required information according to the categories of users. the NASD represented that total method that best meets their 1. Equitable Allocation and Unfair operating costs for TRACE are estimated requirements based on volume, cost, Discrimination to be approximately $6 million and other individual needs. In addition, annually. The NASD represented that The Commission believes that the the NASD noted that its market data fees the proposed fees are intended to help proposal provides for the equitable permit users to select the level of real- the NASD recover the developmental allocation of reasonable fees, dues, and time TRACE data that they would like costs of the new system, fund ongoing other charges, and does not permit to receive and set up a system operational costs, and fund the unfair discrimination between accordingly. Finally, the NASD regulatory activities necessary for customers, issuers, brokers, or dealers. provided additional justification for the surveillance of the market, with a view For example, in several instances, the reasonableness of its fees. It stated that TRACE fee structure adopts a sliding towards making TRACE financially self- its staff has determined the fee structure scale approach. The Commission sustaining. The NASD also represented based on the best available information believes that this sliding scale structure that the various levels of market data regarding the number of participants, promotes an equitable distribution of fees are intended to provide market debt securities transaction volume, the relevant fees while reducing the participants with the flexibility to select potential use of data, etc. It represented possibility of unfair discrimination the usage level that best meets their that a number of analyses have been between customers, issuers, brokers, or needs. In determining the proposed conducted to estimate revenue, dealers.18 For example, transaction market data fees, the NASD represented including requesting a sample of NASD reporting fees vary depending on the that its staff reviewed comparable members to estimate transaction size of the transaction reported by the industry fees for market data. Finally, volumes and consulting market data member, with fees ranging from $0.50 recognizing that the TRACE system is vendors about appropriate pricing levels per trade (for the smallest trades) to new and that participants will need for market data distribution. Finally, it $2.50 per trade (for the largest trades). time to adjust to the requirements of the stated that the only development costs Similarly, system fees for members who TRACE Rules, the NASD proposed that included in its cost estimates are those report to TRACE through a web browser the ‘‘cancel and correct’’ and ‘‘as/of’’ specifically related to the operation of are scaled so that the amount of the fee late fee not be charged until the later of the current TRACE system; and that, in decreases in proportion to the number October 1, 2002 or 90 days from the preparing its estimates, it has projected of user identification members effective date of TRACE. to recover developmental costs related registered to the member. This permits 3. TBMA’s Letter to TRACE over a four-year period. members to take advantage of The Commission believes that the economies of scale. TBMA stated that the NASD has not NASD has adequately addressed In other instances, the TRACE fees provided sufficient basis to determine TBMA’s concerns regarding whether the vary according to the way in which the whether the TRACE fees meet the TRACE fees satisfy the statutory user intends to use the disseminated requirements of the Act regarding standards regarding equitable allocation, TRACE data. For example, market data equitable allocation and reasonableness. unfair discrimination, and fees are lower for users who limit their TBMA stated that the NASD failed to: reasonableness. In any event, because use of the information to internal (1) Reasonably substantiate its costs; (2) the NASD proposes to implement the distribution, and relatively higher for match revenue streams from the various TRACE fees on a six-month pilot basis, fees with the costs it seeks to recover; the Commission will be able to address 15 15 U.S.C. 78f(b)(4). (3) explain the relative allocation of the any concerns that arise regarding 16 15 U.S.C. 78f(b)(5). different categories of fees on a total consistency with the Act at the end of 17 In approving this proposed rule change, the revenue basis; and (4) recognize that the pilot program. Moreover, the NASD Commission has considered the proposal’s impact historical trade information should be on efficiency, competition, and capital formation. itself has agreed to revisit these issues 15 U.S.C. 78c(f). distributed and commercialized prior to the expiration of the pilot. 18 separately from real-time data. TBMA As vendors and other market participants who V. Accelerated Approval of review transaction information could be considered further suggested that the TRACE fees customers of TRACE, the Commission believes that be reassessed as soon as possible after Amendment No. 3 the statutory provision prohibiting unfair discrimination against customers prohibits the TRACE becomes effective and that the For these reasons, the Commission NASD from unfairly discriminating against those proposal be amended to reflect a pilot finds good cause, consistent with vendors and market participants. status. sections 15A(b)(6) and 19(b)(2) of the
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Act, to accelerate approval of SECURITIES AND EXCHANGE entering party, or until 1 year after Amendment No. 3 to the proposed rule COMMISSION entry, whichever comes first. change prior to the thirtieth day after [Release No. 34–46155; File No. SR–NASD– * * * * * the date of publication of notice of filing 2002–92] thereof in the Federal Register. 4706. Order Entry Parameters Amendment No. 3 provides that TRACE Self-Regulatory Organizations; Notice (a) Non-Directed Orders— fees will operate as a six-month pilot of Filing of Proposed Rule Change by (1) General. The following program. Conversion of the fee filing to the National Association of Securities requirements shall apply to Non- a pilot program will enable the Dealers, Inc. Relating to the Day and Directed Orders Entered by NNMS Commission to re-evaluate issues Good-Till-Cancelled Order Market Participants: relating to consistency with the Act at Designations for Non-Directed Orders (A) No Change. the end of the pilot program and and Establishing Time Priority in (B) A Non-Directed Order must be a recommend any needed changes to the Nasdaq’s Future Order Display and market or [marketable] limit order, must NASD at the end of that time. Collector Facility (‘‘NNMS’’ or be a round lot or a mixed lot, must ‘‘SuperMontage’’) indicate whether it is a buy, short sale, VI. Solicitation of Comments short-sale exempt, or long sale, and if July 1, 2002. entered by a Quoting Market Participant Interested persons are invited to Pursuant to section 19(b)(1) of the submit written data, views, and may be designated as ‘‘Immediate or Securities Exchange Act of 1934 Cancel’’[.], or as a ‘‘Day’’ or a ‘‘Good- arguments concerning Amendment No. (‘‘Act’’), 1 and Rule 19b–4 thereunder, 2 3, including whether Amendment No. 3 till-Cancelled’’ order. If a priced order notice is hereby given that on July 1, designated as ‘‘Immediate or Cancel’’ is consistent with the Act. Persons 2002, the National Association of making written submissions should file (‘‘IOC’’) is not immediately executable, Securities Dealers, Inc. (‘‘NASD’’ or the unexecuted order (or portion six copies thereof with the Secretary, ‘‘Association’’), through its subsidiary, Securities and Exchange Commission, thereof) shall be returned to the sender. the Nasdaq Stock Market, Inc. If a priced order designated as a ‘‘Day’’ 450 Fifth Street, NW, Washington, DC (‘‘Nasdaq’’), filed with the Securities 20549–0609. Copies of the submission, order is not immediately executable, the and Exchange Commission (‘‘SEC’’ or unexecuted order (or portion thereof) all subsequent amendments, all written ‘‘Commission’’) the proposed rule statements with respect to the proposed shall be retained by NNMS and remain change as described in Items I, II, and available for potential display/execution rule change that are filed with the III below, which Items have been Commission, and all written until it is cancelled by the entering prepared by Nasdaq. The Commission is party, or until 4:00 p.m. Eastern Time communications relating to the publishing this notice to solicit proposed rule change between the on the day such order was submitted, comments on the proposed rule change whichever comes first, whereupon it will Commission and any person, other than from interested persons. those that may be withheld from the returned to the sender. If the order is public in accordance with the I. Self-Regulatory Organization’s designated as ‘‘Good-till-Cancelled’’ provisions of 5 U.S.C. 552, will be Statement of the Terms of Substance of (‘‘GTC’’), the order (or unexecuted available for inspection and copying in the Proposed Rule Change portion thereof) will be retained by the Commission’s Public Reference NNMS and remain available for Nasdaq proposes to establish ‘‘Good- potential display/execution until Room. Copies of such filing will also be till-Cancelled’’ (‘‘GTC’’) and ‘‘Day’’ available for inspection and copying at cancelled by the entering party, or until designations for Non-Directed Orders 1 year after entry, whichever comes first. the principal office of the NASD. All and clarify the processing of such orders submissions should refer to File No. Starting at 7:30 a.m., until the 4:00 p.m. when held in Nasdaq’s future Order market close, IOC and Day Non- SR–NASD–2002–63 and should be Display and Collector Facility (‘‘NNMS’’ submitted by July 26, 2002. Directed Orders may be entered into or ‘‘SuperMontage’’). In addition, to NNMS (or previously entered orders VII. Conclusion clarify the SuperMontage capability to cancelled), but such orders entered prior accept, retain, display, and execute to market open will not become For the reasons discussed above, the orders at multiple price levels, Nasdaq available for execution until 9:30 a.m. Commission finds that the proposal is also proposes to remove the term Eastern Time. GTC orders may be consistent with the Act and the rules ‘‘marketable’’ from the text of Rule entered (or previously entered GTC and regulations thereunder. 4706(a)(1)(B). If approved, Nasdaq will orders cancelled) between the hours It is therefore ordered, pursuant to implement this rule change within 30 7:30 a.m. to 6:30 p.m. Eastern Time, but section 19(b)(2) of the Act, that the days after successful completion of such orders entered prior to market proposed rule change (SR–NASD–2002– SuperMontage user acceptance testing. open, or GTC orders carried over from Proposed new language is italicized 63), as amended, be and hereby is previous trading days, will not become and deleted text is bracketed. approved, and that Amendment No. 3 available for execution until 9:30 a.m. thereto is approved on an accelerated 4701. Definitions Eastern Time. Exception: Non-Directed basis. (a) through (hh) No Change. Day and GTC orders may be executed For the Commission, by the Division of (ii) The term ‘‘Good-till-Cancelled’’ prior to market open if required under Market Regulation, pursuant to delegated shall mean, for orders so designated, Rule 4710(b)(3)(B). authority.19 that if after entry into NNMS, the order (C) through (E) No Change. (F)(2) No Change. J. Lynn Taylor, is not fully executed, the order (or unexecuted portion thereof) shall (b) through (f) No Change. Assistant Secretary. remain available for potential display * * * * * [FR Doc. 02–16851 Filed 7–3–02; 8:45 am] and/or execution until cancelled by the BILLING CODE 8010–01–P 4710. Participant Obligations in NNMS 1 15 U.S.C. 78s(b)(1). (a) No Change. 19 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. (b) Non-Directed Orders
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(1) No Change. A. Self-Regulatory Organization’s Directed Orders that are designated Day (A) No Change. Statement of the Purpose of, and or GTC will be processed as follows: (B) Processing of Non-Directed Statutory Basis for, the Proposed Rule 1. Pre-Market Session Orders—Upon entry of a Non-Directed Change Order into the system, the NNMS will The Pre-Market Session runs from ascertain who the next Quoting Market 1. Purpose 7:30:00 to 9:29:29 a.m. Eastern Time. Participant in queue to receive an order Under the proposal, SuperMontage During this time, users may enter and is (based on the algorithm selected by will accept, retain, display, and execute cancel GTC and Day Non-Directed the entering participant, as described in orders at multiple price levels. The Orders. Day Orders entered into the subparagraph (b)(B)(i)–(iii) of this rule), system will allow Quoting Market system in the pre-market period, or GTC and shall deliver an execution to Participants 3 to enter Non-Directed orders entered into the system in the Quoting Market Participants that Orders and designate that those orders pre-market period or carried over from participate in the automatic-execution should be: (1) returned to them if they a previous day, though displayable, will functionality of the system, or shall are not immediately executed (i.e., an not be available for execution until the deliver a Liability Order to Quoting Immediate or Cancel or IOC order),4 (2) Pre-Open Unlocking/Uncrossing Process Market Participants that participate in if not immediately executed or set forth in proposed Rule 4710(b)(3)(B) the order-delivery functionality of the thereafter cancelled, held in the commences at 9:29:30 a.m. Eastern system; provided however, that the SuperMontage system for potential Time, if approved by the Commission.8 system always shall deliver an order (in display and/or execution until the 4:00 lieu of an execution) to the Quoting p.m., Nasdaq market close, and then 2. Pre-Open Unlocking/Uncrossing Market Participant next in queue when returned to them (i.e., a Day order), or Process the participant that entered the Non- (3) if not immediately executed or If approved, the Pre-Open Unlocking/ Directed Order into the system is a UTP thereafter cancelled, held in the Uncrossing Process will run from Exchange that does not provide SuperMontage system for potential 9:29:30 to 9:29:59 Eastern Time.9 During automatic execution against its Quotes/ display (if non-marketable) and/or the Pre-Market Unlocking/Uncrossing Orders for Nasdaq Quoting Market execution for up to one year and then Process, GTC and Day orders will Participants and NNMS Order Entry to be purged by Nasdaq (i.e., a Good-till- continue to be displayable and, starting Firms. Non-Directed Orders entered into Cancelled or GTC order).5 In this filing, at 9:29:30 a.m., be automatically the NNMS system shall be delivered to Nasdaq seeks to establish both the GTC executed if necessary to cure a locked/ or automatically executed against and Day order designations for Non- crossed market condition. Quotes and Quoting Market Participants’ Displayed Directed Orders, and clarify for market orders from automatic execution Quotes/Orders and Reserve Size in strict participants how the time priority participants will receive execution price/time priority, as described in the among those orders is established and reports, and SuperMontage delivery algorithm contained in subparagraph how such orders will, or will not, be participants will have the execution (b)(B)(i) of this rule. Alternatively, an executed during the trading day. delivered to them for acceptance, partial NNMS Market Participant can designate a. Retention and Processing of Non- acceptance, or decline. 10 Once this that its Non-Directed Orders be Directed Orders Designated as Day or unlocking/uncrossing is completed, the executed based on a price/time priority GTC Orders system will resume processing incoming that considers ECN quote-access fees, as quotes, orders, and cancels until the described in subparagraphs (b)(B)(ii) of As currently contemplated, 9:30 a.m. market open. If a Day or GTC this rule, or executed based on price/ SuperMontage will have four distinct order arrives during this period, it will size/time priority, as described in time periods over the course of the be executed if it would lock or cross the trading day: (1) the Pre-Market Session subparagraph (b)(B)(iii) of this rule. The market. If the new Day or GTC order (7:30 to 9:29:29 Eastern Time), (2) the individual time priority of each Quote/ does not lock/cross the market, it will be Pre-Open Unlocking/Uncrossing Process Order submitted to NNMS shall be retained by SuperMontage for display (9:29:30 a.m. to 9:29:59 Eastern Time),6 assigned by the system based on the and/or execution during the remainder (3) Normal Market Day (9:30 a.m. to 4:00 date and time such Quote/Order was of the trading day for Day orders and for p.m. Eastern Time), and (4) the After- received. Remainders of Quote/Orders GTC orders, and for GTC orders each Hours Session (4:00 to 6:30 p.m. Eastern reduced by execution, if retained by the day thereafter starting at 9:29:30 a.m. Time). 7 During these time periods, Non- system, shall retain the time priority of until the 4:00 p.m. normal market close. their original entry. (i) through (iv) No Change. 3 The term ‘‘Quoting Market Participants’’ refers 3. Normal Market Session to NNMS Market Makers, NNMS Electronic (C) through (E) No Change. Communication Networks (‘‘ECNs’’), and Unlisted The Normal Market Session runs from II. Self-Regulatory Organization’s Trading Privilege Exchange Specialists. See Rule 9:30 a.m. to 4:00 p.m. Eastern Time. 4701(cc). During this period Day and GTC orders Statement of the Purpose of, and 4 If no designation is selected by the entering Statutory Basis for, the Proposed Rule party, SuperMontage will automatically designate may be entered by Quoting Market Change such orders as IOC. 5 GTC orders that remain in the system for 1 year Hours session in a SuperMontage environment will In its filing with the Commission, will be purged after the close on the anniversary operate in a manner similar to Nasdaq’s current Nasdaq included statements concerning date of their entry. If this anniversary date falls on after-hours program. the purpose of, and basis for, the a date when the Nasdaq market is closed, the order 8 During the Pre-Market Session executions can will be purged after the close on the next business only occur through the SuperMontage Directed proposed rule change and discussed any day. Order process. Telephone conversation between comments it received on the proposed 6 Nasdaq recently filed with the Commission a Thomas Moran, Office of the General Counsel, rule change. The text of these statements proposal seeking to establish a Pre-Open Nasdaq, and Marc McKayle, Special Counsel, may be examined at the places specified Unlocking/Uncrossing Process for SuperMontage. Division of Market Regulation, Commission, on July in Item IV below. Nasdaq has prepared See Securities Exchange Act Release No. 45965 1, 2002. (May 20, 2002), 67 FR 36659 (May 28, 2002) (Notice 9 See note 6, supra. summaries, set forth in Sections A, B, of File No. NASD–2002–42). 10 Once dispatched to an order delivery market and C below, of the most significant 7 Nasdaq will soon formally file with the participant, an execution/order may not be aspects of such statements. Commission a proposal clarifying that the After- cancelled.
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Participants at any time and will be its time priority. For example, a GTC B. institute proceedings to determine retained by the system until they are order entered at 7:45 a.m. is not whether the proposed rule change executed or cancelled. Each GTC and executable, but such an order will have should be disapproved.17 Day order will, like all other time priority over all other orders IV. Solicitation of Comments representations of trading interest in entered after that time. Similarly, that SuperMontage, be individually time- GTC order would retain its time priority Interested persons are invited to stamped and executed if appropriate. over all other orders entered on days submit written data, views, and Remainders of quote/orders reduced by after that GTC order was entered into arguments concerning the foregoing, execution, and retained by the system, NNMS. In short, if NNMS allows the including whether the proposed rule will retain the time priority of their entry of the quote/order at a particular change is consistent with the Act. original entry. point in the trading day, the quote/ Persons making written submissions order’s time priority is established at should file six copies thereof with the 4. After-Hours Session that time. Secretary, Securities and Exchange If approved, the After-Hours Session Commission, 450 Fifth Street, NW, in a SuperMontage environment will 2. Statutory Basis Washington, DC 20549–0609. Copies of run from 4:00 p.m. (Market close) to Nasdaq believes that the proposed the submission, all subsequent 6:30 p.m. Eastern Time.11 At market rule change is consistent with the amendments, all written statements close, SuperMontage Non-Directed provisions of Section 15A of the Act,15 with respect to the proposed rule Order Processing ends for the day, and in general, and with Section 15A(b)(6) change that are filed with the all Day orders expire and are returned of the Act,16 in particular, in that the Commission, and all written to the entering party. GTC orders that proposals are designed to prevent communications relating to the have not been executed or cancelled fraudulent and manipulative acts and proposed rule change between the will be retained by the system for the practices, to promote just and equitable Commission and any person, other than next trading session. Such orders will principals of trade, to foster cooperation those that may be withheld from the not, however, be available for execution and coordination with person engaged public in accordance with the in the after-hours session. During the in regulating, clearing, settling, provisions of 5 USC 552, will be after-hours session, Quoting Market processing information with respect to, available for inspection and copying in Participants may continue to enter new and facilitating transactions in the Commission’s Public Reference GTC orders and cancel any previously securities, to remove impediments to Room. Copies of such filing will also be entered GTC order. GTC orders are not and perfect the mechanism of a free and available for inspection and copying at displayed during the after-hours open market and a national market the principal office of the NASD. All session. Day orders may not be entered system, and, in general, to protect submissions should refer to File No. during the after-hours session. investors and the public interest. SR–NASD–2002–92 and should be submitted by July 22, 2002. b. Time Priority in SuperMontage B. Self-Regulatory Organization’s Statement on Burden on Competition For the Commission, by the Division of The default priority for executing Market Regulation, pursuant to delegated Non-Directed Orders in SuperMontage Nasdaq does not believe that the authority.18 is price/time. As such, the system, proposed rule change will result in any Jill M. Peterson, unless requested otherwise by the party burden on competition that is not Assistant Secretary. entering the Non-Directed Order,12 will necessary or appropriate in furtherance [FR Doc. 02–17000 Filed 7–3–02; 8:45 am] access the highest buy prices or the of the purposes of the Act. lowest sell prices residing in the BILLING CODE 8010–01–P system.13 Generally, among equally C. Self-Regulatory Organization’s priced buying interest, or equally priced Statement on Comments on the Proposed Rule Change Received From SECURITIES AND EXCHANGE selling or market-priced interest, the COMMISSION system is programmed to automatically Members, Participants or Others access the quotes/orders that were Nasdaq neither solicited nor received [Release No. 34–46143 ; File No. SR–NYSE– entered first into the system.14 This time written comments with respect to the 2002–22] priority attaches to a quote/order based proposed rule change. upon the date and time it was entered Self-Regulatory Organizations; Notice into NNMS and remains until the quote/ III. Date of Effectiveness of the of Filing and Immediate Effectiveness order is executed in full or it is Proposed Rule Change and Timing for of Proposed Rule Change by the New cancelled by the entering party or by Commission Action York Stock Exchange, Inc. Extending the Pilot Regarding Shareholder NNMS. The ability to execute against a Within 35 days of the date of particular quote/order will not impact Approval of Stock Option Plans publication of this notice in the Federal Through August 31, 2002 Register or within such longer period (i) 11 See note 7, supra. as the Commission may designate up to June 28, 2002. 12 A party entering a Non-Directed Order may also elect to have it order interact in the system on a 90 days of such date if it finds such Pursuant to section 19(b)(1) of the price/time basis that takes into account access fees longer period to be appropriate and Securities Exchange Act of 1934 or on a price/size/time basis. See Rule publishes its reasons for so finding or (‘‘Act’’),1 and Rule 19b–4 thereunder,2 4710(b)(1)(B)(i), (ii) and (iii). (ii) as to which the self-regulatory notice is hereby given that on June 26, 13 If a Non-Directed Order is entered by a NNMS organization consents, the Commission Market Maker or ECN, NNMS will, before sending it to a Quoting Market Participant, first attempt to will: 17 Nasdaq has requested that the Commission find match the order off against the entering party’s own A. By order approve such proposed good cause pursuant to Section 19(b)(2) of the Act to approve the proposed rule change prior to the quote/order, if that quote/order is at the best price rule change, or in Nasdaq. See Rule 4710(b)(1)(B)(iv)(a). 30th day of publication in the Federal Register. 14 Parties entering Non-Directed Orders also have 18 17 CFR 200.30–3(a)(12). an option to preference such orders to a particular 15 15 U.S.C. 78o–3. 1 15 U.S.C. 78s(b)(1). market participant. See Rule 4710(b)(1)(B)(iv)(b). 16 15 U.S.C. 78o–3(b)(6). 2 17 CFR 240.19b–4.
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2002, the New York Stock Exchange, A. Self-Regulatory Organization’s until August 31, 2002 to provide Inc. (‘‘NYSE’’ or ‘‘Exchange’’) filed with Statement of the Purpose of, and additional time to evaluate the issues the Securities and Exchange Statutory Basis for, the Proposed Rule presented by the Pilot, in light of Commission (‘‘SEC’’ or ‘‘Commission’’) Change recently adopted requirements relating the proposed rule change as described 1. Purpose to disclosure of equity compensation in Items I, II, and III below, which Items plan information.14 In addition, on June have been prepared by the Exchange. On July 13, 2000, the Exchange filed 6, 2002, the Exchange’s special The Commission is publishing this a proposed rule change seeking to Committee on Corporate Accountability notice to solicit comments on the extend the effectiveness of the Pilot and Listing Standards (‘‘Committee’’) until September 30, 2003.9 Following proposed rule change from interested recommended to the Exchange’s Board receipt of comments from interested persons. of Directors that shareholders ‘‘be given parties and the SEC staff, on January 19, the opportunity to vote on all equity- I. Self-Regulatory Organization’s 2001, the Exchange amended the 2000 15 Statement of the Terms of Substance of Extension Request to shorten the three- compensation plans.’’ The NYSE the Proposed Rule Change year extension request to one year and represents that its Board of Directors is to amend the definition of ‘‘broadly expected to vote at its August 2002 The Exchange proposes to extend, based’’ under the Exchange’s rule. Board meeting on the final until August 31, 2002, the effectiveness While the 2000 Extension Request was recommendations from the Committee of the amendments to Sections 312.01, under consideration, the Commission and on rule changes to implement them. 312.03 and 312.04 of the Exchange’s extended the Pilot to provide the The Exchange requests an extension of Listed Company Manual with respect to Commission and the Exchange with the Pilot until August 31, 2002 to the definition of a ‘‘broadly-based’’ additional time to review and evaluate provide time within which to file such stock option plan, which were approved comment letters.10 On March 30, 2001, rule changes as are approved by its by the Commission on a pilot basis (the the Commission approved the 2000 Board of Directors in August. The ‘‘Pilot’’) on June 4, 1999.3 The Pilot was Extension Request, which amended and Exchange believes that, upon filing of subsequently amended and extended on extended the Pilot, on a pilot basis until such rule changes, further extension of March 30, 2001 until September 30, September 30, 2001.11 The Exchange’s the Pilot will likely be necessary to 2001.4 The Pilot has since been 2001 Extension Request became provide time for notice, comment and extended until January 11, 2002,5 March effective on September 28, 2001, on a approval of such rule changes.16 11, 2002,6 May 13, 2002,7 and June 30, pilot basis, and extended the Pilot until 2002.8 January 11, 2002 to provide additional 2. Statutory Basis time to evaluate the issues presented by The Exchange believes that the II. Self-Regulatory Organization’s the Pilot.12 The Pilot was again Statement of the Purpose of, and proposed rule change is consistent with extended until March 11, 2002, May 13, 17 Statutory Basis for, the Proposed Rule 2002, and June 30, 2002 for the same section 6(b)(5) of the Act, which Change reasons.13 requires, among other things, that an The Exchange proposes to further Exchange have rules designed to In its filing with the Commission, the extend the effectiveness of the Pilot prevent fraudulent and manipulative Exchange included statements acts and practices, to promote just and concerning the purpose of and basis for 9 Securities Exchange Act Release No. 43111 equitable principles of trade, to foster the proposed rule change and discussed (August 2, 2000), 65 FR 49046 (August 10, 2000) cooperation and coordination with any comments it received on the (notice of filing of File No. SR–NYSE–00–32) persons engaged in facilitating proposed rule change. The text of these (‘‘2000 Extension Request’’). 10 See Securities Exchange Act Release Nos. transactions in securities, to remove statements may be examined at the 43329 (September 22, 2000), 65 FR 58833 (October impediments to and perfect the places specified in Item IV below. The 2, 2000) (notice of filing and immediate mechanism of a free and open market Exchange has prepared summaries, set effectiveness of File No. SR–NYSE–00–38); 43647 (November 30, 2000), 65 FR 77407 (December 11, and a national market system and, in forth in Sections A, B, and C below, of 2000) (notice of filing and immediate effectiveness general, to protect investors and the the most significant aspects of such of File No. SR–NYSE–00–52); and 44018 (February public interest. statements. 28, 2001), 66 FR 13821 (March 7, 2001) (notice of filing and immediate effectiveness of File No. SR– B. Self-Regulatory Organization’s NYSE–2001–04). 3 Statement on Burden on Competition Securities Exchange Act Release No. 41479, 64 11 See note 4 supra. FR 31667 (June 11, 1999) (notice of filing and order 12 See note 5 supra. One comment letter was granting accelerated approval, on a pilot basis, to The Exchange does not believe that received regarding the extension of the Pilot by the File No. SR–NYSE–98–32) (‘‘Original Pilot 2001 Extension Request. See letter from Sarah A.B. the proposed rule change will impose Approval Order’’). Teslick, Executive Director, Council of Institutional any burden on competition that is not 4 Securities Exchange Act Release No. 44141, 66 Investors (‘‘CII’’) to Jonathan G. Katz, Secretary, FR 18334 (April 6, 2001) (order granting approval, necessary or appropriate in furtherance Office of the Secretary, Commission, dated October of the purposes of the Act. on a pilot basis, to the File No. SR–NYSE–00–32). 16, 2001. The CII commented that the 2001 5 Securities Exchange Act Release No. 44886 Extension Request should have been released for (September 28, 2001), 66 FR 51083 (October 5, public comment prior to the Commission approving 2001) (notice of filing and immediate effectiveness another extension to the Pilot and that any future of File No. SR–NYSE–2001–37) (‘‘2001 Extension proposed extensions should be released for prior Request’’). public comment, that the Pilot not be extended after 14 Release Nos. 33–8048 and 34–45189 (December 6 See Securities Exchange Act Release No. 45275 January 11, 2002, that the NYSE should be required 21, 2001), 67 FR 232 (January 2, 2002). (January 14, 2002), 67 FR 2718 (January 18, 2002) to submit a dilution standard for approval which 15 Report of Corporate Accountability and Listing (File No. SR–NYSE–2002–03). should be in place before the 2002 proxy season, Standards Committee, June 6, 2002, p. 17. 7 See Securities Exchange Act Release No. 45546 and that the Commission act on the proposed 16 (March 12, 2002), 67 FR 10272 (March 18, 2002) disclosure standards for stock option plans. The Telephone conversation between Janet M. (File No. SR–NYSE–2002–14). Commission notes that the disclosure standards Kissane, Office of General Counsel, NYSE, and 8 See Securities Exchange Act Release No. 45918 were approved by it on December 21, 2001. See Sapna C. Patel, Attorney, Division of Market (May 13, 2002), 67 FR 35174 (May 17, 2002) (File note 14 infra below. Regulation, Commission, on June 26, 2002. No. SR–NYSE–2002–18). 13 See notes 6 through 8 supra. 17 15 U.S.C. 78f(b)(5).
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C. Self-Regulatory Organization’s The Commission recognizes that the All submissions should refer to the File Statement on Comments on the Pilot has generated many comment No. SR–NYSE–2002–22 and should be Proposed Rule Change Received From letters from commenters that do not submitted by July 26, 2002. Members, Participants or Others support the NYSE’s definition of For the Commission, by the Division of ‘‘broadly-based’’ stock option plans The Exchange has neither solicited Market Regulation, pursuant to delegated under the Pilot.22 The Commission also 24 nor received written comments on the authority. notes that many commenters were proposed rule change. Jill M. Peterson, critical of the NYSE’s existing rules on Assistant Secretary. III. Date of Effectiveness of the broadly-based plans prior to the [FR Doc. 02–16849 Filed 7–3–02; 8:45 am] Proposed Rule Change and Timing for adoption of the original Pilot. As noted Commission Action above, if the Pilot is not extended, the BILLING CODE 8010–01–P rules prior to the Pilot will go into Because the proposed rule change (1) effect. The proposed rule change merely does not significantly affect the SECURITIES AND EXCHANGE extends the duration of the Pilot for protection of investors or the public COMMISSION only a short period of time and does not interest; (2) does not impose any deal with the substantive issues significant burden on competition; and [Release No. 34–46138; File No. SR–PCX– presented by the Pilot itself. 2002–32] (3) does not become operative for 30 Based on these reasons, the days from the date of filing, or such Commission has determined that it is Self-Regulatory Organizations; Notice shorter time as the Commission may consistent with the protection of of Filing and Immediate Effectiveness designate if consistent with the investors and the public interest that the of Proposed Rule Change by the protection of investors and the public proposed rule change to extend the Pilot Pacific Exchange, Inc. Relating to interest, the proposed rule change has through August 31, 2002, become Changes in Marketing Fees become effective pursuant to Section operative on June 30, 2002.23 At any 18 19(b)(3)(A) of the Act and Rule 19b– time within 60 days of the filing of the June 27, 2002. 19 4(f)(6) thereunder. proposed rule change, the Commission Pursuant to section 19(b)(1) of the A proposed rule change filed under may summarily abrogate such rule Securities Exchange Act of 1934 Rule 19b–4(f)(6) 20 normally does not change if it appears to the Commission (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 become operative prior to 30 days after that such action is necessary or notice is hereby given that on May 30, the date of filing. However, pursuant to appropriate in the public interest, for 2002, the Pacific Exchange, Inc. (‘‘PCX’’) Rule 19b–4(f)(6)(iii),21 the Commission the protection of investors, or otherwise filed with the Securities and Exchange may designate a shorter time if such in furtherance of the purposes of the Commission (‘‘Commission’’) the action is consistent with the protection Act. proposed rule change as described in of investors and public interest. The Items I, II and III below, which the PCX Exchange seeks to have the proposed IV. Solicitation of Comments has prepared. The Commission is rule change become operative on or Interested persons are invited to publishing this notice to solicit before June 30, 2002, in order to allow submit written data, views and comments on the proposed rule change the Pilot to continue in effect on an arguments concerning the foregoing, from interested persons. uninterrupted basis. In addition, under including whether the proposed rule Rule 19b–4(f)(6)(iii), the Exchange is change is consistent with the Act. I. Self-Regulatory Organization’s required to provide the Commission Persons making written submissions Statement of the Terms of Substance of with written notice of its intent to file should file six copies thereof with the the Proposed Rule Change the proposed rule change at least five Secretary, Securities and Exchange The PCX is proposing to change its business days prior to the filing date or Commission, 450 Fifth Street NW, marketing fee for certain options and to such shorter time as designated by the Washington, DC 20549–0609. Copies of adopt new marketing fees for recently Commission. The Commission waived the submission, all subsequent listed options. The text of the proposed the five-day pre-notice and thirty-day amendments, all written statements rule change is available at the PCX and operative date requirements for this with respect to the proposed rule at the Commission. proposed rule change. change that are filed with the II. Self-Regulatory Organization’s The Commission, consistent with the Commission, and all written Statement of the Purpose of, and protection of investors and the public communications relating to the Statutory Basis for, the Proposed Rule interest, has determined to make the proposed rule change between the Change proposed rule change to extend the Pilot Commission and any person, other than through August 31, 2002, become those that may be withheld from the In its filing with the Commission, the operative on June 30, 2002. The public in accordance with the PCX included statements concerning the Commission notes that unless the Pilot provisions of 5 U.S.C. 552, will be purpose of and basis for the proposed is extended, the Pilot will expire and available for inspection and copying in rule change and discussed any the provisions of Sections 312.01, the Commission’s Public Reference comments it had received on the 312.03, and 312.04 of the Exchange’s Room. Copies of such filing will also be proposed rule change. The text of these Listed Company Manual that were available for inspection and copying at statements may be examined at the amended in the Pilot will revert to those the principal office of the above- places specified in Item IV below. The in effect prior to June 4, 1999. The mentioned self-regulatory organization. PCX has prepared summaries, set forth Commission believes that such a result in sections A, B, and C below, of the could lead to confusion. 22 See Original Pilot Approval Order, note 3 most significant aspects of such supra. statements. 23 For purposes only of accelerating the operative 18 15 U.S.C. 78s(b)(3)(A). date of this proposal, the Commission notes that it 19 17 CFR 240.19b–4(f)(6). has considered the proposed rule’s impact on 24 17 CFR 200.30–3(a)(12). 20 Id. efficiency, competition, and capital formation. 15 1 15 U.S.C. 78s(b)(1). 21 17 CFR 240.19b–4(f)(6)(iii). U.S.C. 78c(f). 2 17 CFR 240.19b–4.
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A. Self-Regulatory Organization’s III. Date of Effectiveness of the Iditarod Regional Education Attendance Statement of the Purpose of, and Proposed Rule Change and Timing for Areas (REAA), Aniak, Crooked Creek, Statutory Basis for, the Proposed Rule Commission Action Red Devil and Sleetmute in the Kuspuk Change The foregoing rule change has become REAA, Kwethluk in the Lower effective pursuant to section 19(b)(3)(A) Kuskokwim REAA and Ekwok and New The PCX recently adopted a payment- of the Act 6 and Rule 19b–4(f) 7 because Stuyahok in the Southwest Region for-order-flow program under which it it changes a PCX fee. At any time within REAA in the State of Alaska constitute charges a marketing fee ranging from $0 60 days of the filing of the proposed rule a disaster area due to damages caused to $1.00 per contract on a per-issue change, the Commission may summarily by flooding occurring on April 27, 2002 3 basis. The PCX segregates the funds abrogate the rule change if it appears to through May 30, 2002. Applications for from this fee by trading post and makes the Commission that the action is loans for physical damage as a result of the funds available to lead market necessary or appropriate in the public this disaster may be filed until the close makers for their use in attracting orders interest, for the protection of investors, of business on August 25, 2002 and for in the options traded at the posts. The or otherwise in furtherance of the economic injury until the close of PCX charges the marketing fees as set purposes of the Act. business on March 26, 2003 at the forth in the Schedule of Rates. address listed below or other locally IV. Solicitation of Comments announced locations: The PCX is proposing to change the Interested persons are invited to marketing fee for certain options as set U.S. Small Business Administration, submit written data, views and forth in the Schedule of Rates beginning Disaster Area 4 Office, P.O. Box arguments concerning the foregoing, 13795, Sacramento, CA 95853–4795 at the commencement of the June trade including whether the proposed rule month and continuing until further change is consistent with the Act. In addition, applications for economic notice. The PCX proposes to change Persons making written submissions injury loans from small businesses only the amounts of the fees that it should file six copies thereof with the located in the following areas and charges for transactions in the options Secretary, Securities and Exchange jurisdictions in Alaska may be filed that are included in the proposed Commission, 450 Fifth Street, NW., until the specified date at the above Schedule of Rates. Any fees currently Washington, DC 20549–0609. Copies of location: Alaska Gateway REAA, Delta/ being charged for transactions in the submission, all subsequent Greely REAA, Iditarod REAA, options that are not listed in this amendments, all written statements Kahsunamiut (Chevak) REAA, Lower amendment to the Schedule of Rates with respect to the proposed rule Kuskokwim REAA, Lower Yukon would not be affected by the proposed change that are filed with the REAA, Southwest Region REAA, Yupiit rule change. The PCX believes that its Commission, and all written (Akiachak, Akiak and Tulusak) REAA, proposed rule change is reasonable and communications relating to the Lake & Peninsula Borough, Yukon Flats equitable because it is designed to proposed rule change between the REAA, Denali Borough and Yukon- enable the PCX to compete with other Commission and any person, other than Koyukuk REAA. markets in attracting options business. those that may be withheld from the The interest rates are: Only the amount of the fee is being public in accordance with the changed. provisions of 5 U.S.C. 552, will be Percent available for inspection and copying in The PCX believes that the proposal is the Commission’s Public Reference For Physical Damage: consistent with section 6(b) of the Act,4 Room. Copies of the filing will also be Homeowners with credit avail- in general, and section 6(b)(4) of the available for inspection and copying at able elsewhere ...... 6.750 Act,5 in particular, in that it provides for Homeowners without credit the principal offices of the PCX. All available elsewhere ...... 3.375 the equitable allocation of reasonable submissions should refer to File No. dues, fees and other charges among its Businesses with credit avail- SR–PCX–2002–32 and should be able elsewhere ...... 7.000 members. submitted by July 26, 2002. Busineses and non-profit orga- B. Self-Regulatory Organization’s For the Commission, by the Division of nizations without credit Statement on Burden on Competition Market Regulation, pursuant to delegated available elsewhere ...... 3.500 authority.8 Others (including non-profit or- The PCX does not believe that the ganizations) with credit Margaret H. McFarland, available elsewhere ...... 6.375 proposed rule change will impose any Deputy Secretary. For Economic Injury: burden on competition that is not [FR Doc. 02–16770 Filed 7–3–02; 8:45 am] Businesses and small agricul- necessary or appropriate in furtherance BILLING CODE 8010–01–P tural cooperatives without of the purposes of the Act. credit available elsewhere ... 3.500 C. Self-Regulatory Organization’s Statement on Comments on the SMALL BUSINESS ADMINISTRATION The number assigned to this disaster for physical damage is 342706. For Proposed Rule Change Received From [Declaration of Disaster #3427] Members, Participants, or Others economic injury the number is 9Q3700 State of Alaska; Disaster Loan Areas for Alaska. The PCX neither solicited nor (Catalog of Federal Domestic Assistance received written comments on the As a result of the President’s major Program Nos. 59002 and 59008) proposed rule change. disaster declaration on June 26, 2002, I Dated: June 27, 2002. find that Fairbanks North Star Borough, Herbert L. Mitchell, McGrath and Lime Village in the 3See Securities Exchange Act Release No. 44830 Associate Administrator for Disaster (September 21, 2001), 66 FR 49728 (September 28, Assistance. 2001) (SR–PCX–2001–37). 6 15 U.S.C. 78s(b)(3)(A). 4 15 U.S.C. 78f(b). 7 17 CFR 19b–4(f)(2). [FR Doc. 02–16787 Filed 7–3–02; 8:45 am] 5 15 U.S.C. 78f(b)(4). 8 17 CFR 200.30–3(a)(12). BILLING CODE 8025–01–P
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SMALL BUSINESS ADMINISTRATION A Women’s Business Center is a 5- DATES: The opening date of the year community-based project that is application period is July 15, 2002 and [Declaration of Economic Injury Disaster funded by the U.S. Small Business the closing date is August 12, 2002. #9Q36] Administration through a matching FOR FURTHER INFORMATION CONTACT: Commonwealth of Massachusetts; grant. The project is a planned scope of Sally Murrell, (202) 205–6673 or Sharon Disaster Loan Areas activities that provide business skills Gurley (202) 205–6622. services targeted to women. The project Wilma Goldstein, Suffolk County and the contiguous must operate as a distinct unit of the counties of Essex, Middlesex and Assistant Administrator, SBA/Office of recipient’s organization having its own Women’s Business Ownership. Norfolk constitute an economic injury budget for facilities, equipment and [FR Doc. 02–16785 Filed 7–3–02; 8:45 am] disaster loan area as a result of a fire resources to carry out project activities. that occurred in the Roxbury section of The WBC services must include long- BILLING CODE 8025–01–P Boston, MA on June 9, 2002. The fire term training and counseling pertaining destroyed commercial buildings in to financial, management and marketing Dudley Square. Eligible small DEPARTMENT OF STATE assistance to benefit small business businesses and small agricultural concerns owned and controlled by [Public Notice #4036] cooperatives without credit available women. SBA Headquarters must receive elsewhere may file applications for Request for Comments; United States economic injury assistance as a result of applications/proposals by 4:00 p.m., Eastern Standard Time, on the closing Privatization of Intergovernmental this disaster until the close of business Satellite on March 27, 2003, at the address listed date of August 12, 2002. SBA will select below or other locally announced successful applicants using a The Department of State requests locations: competitive technical evaluation comments regarding the effects of the process. Applicants from states and U.S. Small Business Administration, privatization of Inmarsat and INTELSAT territories without an SBA-funded Disaster Area 1 Office, 360 Rainbow on the United States industry, United Blvd, South 3rd Floor, Niagara Falls, Women’s Business Center will receive States jobs, and United States industry NY 14303 special consideration. States and U.S. access to the to the global marketplace. territories without a center are The Department notes that Inmarsat The interest rate for eligible small Delaware, Guam, Ohio, South Carolina privatized on April 15, 1999 and businesses and small agricultural and West Virginia. INTELSAT privatized on July 18, 2001. cooperatives is 3.5 percent. The number Service and assistance areas must On March 17, 2000, the President assigned for economic injury for this signed into law the Open-Market include financial, management, disaster is 9Q3600 for Massachusetts. Reorganization for the Betterment of marketing, loan packaging, eCommerce, (Catalog of Federal Domestic Assistance International Telecommunications government procurement/certification Program No. 59002) (ORBIT) Act, Public Law No. 106–180. assistance and training on the business Dated: June 27, 2002. This legislation seeks to ‘‘promote a uses of the Internet. Applicants must Melanie R. Sabelhaus, fully competitive global market for plan to include women who are socially Acting Administrator. satellite communications services for and economically disadvantaged in the the benefit of consumers and providers [FR Doc. 02–16788 Filed 7–3–02; 8:45 am] target group. The applicant may propose BILLING CODE 8025–01–P of satellite services and equipment by specialized services that will assist fully privatizing the intergovernmental women in Empowerment Zones, satellite organizations, INTELSAT and SMALL BUSINESS ADMINISTRATION agribusiness, rural or urban areas, etc. Inmarsat.’’ Id. at sec. 2. In addition, the The applicant may propose to serve ORBIT Act requires the President to Federal Assistance for Women’s women who are veterans, women with provide an annual report to Congress on Business Centers (WBC) To Provide home-based businesses, women with the progress of privatization in relation Financial Counseling and Other disabilities, etc. SBA will request award to the objectives, purposes, and Technical Assistance to Women recipients to provide content and provisions of the Act, including the support activities to the SBA Online ‘‘[v]iews of the industry and consumers AGENCY: Small Business Administration. Women’s Business Center, on privatization’’ and the ‘‘[i]mpact ACTION: Program Announcement No. www.onlinewbc,gov. privatization has had on United States OWBO–2002–018. The applicants’ technical proposal industry, United States jobs, and United States industry’s access to the global SUMMARY: The U.S. Small Business must contain information about its marketplace.’’ See id. at sec. 646(b)(3) Administration (SBA) plans to issue current status and past performance. and (4). The first such report was program announcement No. OWBO– Also, the applicant must provide a 5- released on February 27, 2001.1 By this 2002–018 to invite applications from year plan for service delivery, fund- public notice and RFC, we are soliciting eligible nonprofit organizations to raising, training and technical assistance the views of the industry and consumers conduct Women’s Business Center activities. The grant will be issued on the privatizations. (WBC) projects. The successful annually through a 5-year term without applicant will receive a cooperative re-competition. The non-Federal match DATES: Comments must be received by agreement to provide counseling, requirement is one non-Federal dollar July 19, 2002. training and other technical assistance for each two Federal dollars in years 1 ADDRESSES: The Department invites the to women who want to start or expand and 2; and one non-Federal dollar for public to submit written comments in businesses. The authorizing legislation each Federal dollar in years 3, 4, and 5. is the Small Business Act, §§ 2(h) and Up to one-half of the non-Federal match 1 See Department of State, Report to Congress, funds may be in the form of in-kind Report Pursuant to Section 646(a) of Section 3 of 29, 15 U.S.C. 631(h) and 656. the Open-Market Reorganization for the Betterment Approximately three (3) grants will be contributions (i.e., 50% of match must of International Telecommunications Act (Pub. L. awarded. be in cash). 106–180), (Feb. 2001) [‘‘ORBIT Report’’].
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paper or electronic form. Comments Dated: June 11, 2002. Members of the general public may may be mailed to Deepti Rohatgi, Office Steven W. Lett, attend the meeting, though attendance of the Coordinator—International Deputy U.S. Coordinator, International, of public members will be limited to the Communications and Information Communications Information Policy, seating available. Access to the building Policy Mail Code EB/CIP, U.S. Department of State. is controlled, and individual building Department of State, 2201 C Street, NW., [FR Doc. 02–15974 Filed 7–3–02; 8:45 am] passes are required for all attendees. Washington, DC 20520–5820. Paper BILLING CODE 4710–45–P To attend the meeting, please contact submissions should include a version Matt Lauer at (202) 619–4463 and on diskette in ASCII, Word Perfect provide date of birth and Social Security DEPARTMENT OF STATE (please specify version), or Microsoft number. For more information visit www.state.gov/r/adcompd. Word (please specify version) format. [Public Notice 4040] Dated: June 28, 2002. Comments submitted in electronic form may be sent to U.S. Advisory Commission on Public Matthew Lauer, [email protected]. Electronic Diplomacy; Notice of Meeting Executive Director, Department of State. [FR Doc. 02–16887 Filed 7–3–02; 8:45 am] comments should be submitted in the The Department of State announces BILLING CODE 4710–11–P formats specified above. the meeting of the U.S. Advisory Comments submitted electronically Commission on Public Diplomacy on Friday, July 19 in Room 1406 of the U.S. will be posted on the Department’s Web STATE JUSTICE INSTITUTE site at http://www.state.gov/e/eb/cip. Department of State at 2201 C Street, NW, Washington, DC. The meeting will Sunshine Act Meeting FOR FURTHER INFORMATION CONTACT: take place from 10 a.m. to 11 a.m. Deepti Rohatgi (202) 647–5832. The Commission, reauthorized DATE: Saturday, July 27, 2002, 9 a.m.–5 SUPPLEMENTARY INFORMATION: pursuant to Pub. L. 106–113 (H.R. 3194, p.m. Consolidated Appropriations Act, 2000), PLACE: The Samoset Resort, Rockport, Background will hear from experts who are ME. launching a global initiative designed to INTELSAT was created as an MATTERS TO BE CONSIDERED: ensure that health becomes an intergovernmental organization (with Consideration of proposals submitted important component of U.S. foreign final charter entering into force on for Institute funding and internal policy and is used to improve America’s Institute business. February 12, 1973) to enhance global image abroad, defuse anger and PORTIONS OPEN TO THE PUBLIC: communications and to spread the risks resentment by people in the Middle East Consideration of proposals submitted of creating a global satellite system and other regions against the United for Institute funding and internal across operating companies and States, and attack some of the root 2 Institute business other than personnel agencies from many countries. On July causes of terrorism. matters. 18, 2001, INTELSAT was fully Dr. Kenneth L. Shine, who recently privatized by transferring all of its joined the new RAND Center for PORTIONS CLOSED TO THE PUBLIC: operating assets to Intelsat LLC, a Domestic and International Health Discussion of internal personnel Bermuda corporation that enjoys no Security as its first director, will be the matters. privileges or immunities. Inmarsat was principal speaker at the session. Dr. CONTACT PERSON: David Tevelin, created as an intergovernmental Shine is one of the nation’s leading Executive Director, State Justice organization (with its final charter physicians and was the president of the Institute, 1650 King Street, Suite 600, entering into force on July 16, 1979) to Institute of Medicine at the National Alexandria, VA 22314, (703) 684–6100. improve global maritime Academy of Sciences. Dr. C. Ross David I. Tevelin, communications through a satellite Anthony, associate center director for Executive Director. international health, will also speak. Dr. system that would provide distress and [FR Doc. 02–17037 Filed 7–2–02; 3:40 pm] Anthony is the former director of safety communications services to BILLING CODE 6820–SC–M seafaring nations in a cooperative, cost- development resources for USAID/ sharing entity. On April 15, 1999, Europe and an international health expert. Inmarsat was fully privatized by DEPARTMENT OF TRANSPORTATION transferring its assets and operations to The U.S. Advisory Commission on Inmarsat Ltd., a U.K. corporation that Public Diplomacy is a bipartisan Office of the Secretary Presidentially appointed panel created enjoys no privileges or immunities. by Congress in 1948 to provide [Dockets OST–01–11164 and OST–01– Previously, INTELSAT had divested oversight of U.S. Government activities 11198] some of its satellites in 1998 to New intended to understand, inform and Skies Satellites, NV, a Netherlands influence foreign publics. The Application of Caribbean Star Airlines, 3 corporation. Commission reports its findings and Inc. for Certificate Authority recommendations to the President, the AGENCY: Department of Transportation. 2 See Treaty on Principles Governing the Congress and the Secretary of State and ACTION: Notice of Order to Show Cause Activities of States in the Exploration and Use of the American people. Current (Order 2002–6–16) Outer Space, Including the Moon and Other commission members include Harold Celestial Bodies. Pachios of Maine, who is the chairman; SUMMARY: The Department of 3 Although both ISOs are fully privatized, two Charles Dolan of Virginia, who is the Transportation is directing all interested small residual intergovernmental organizations, ITSO from INTELSAT, and IMSO (International vice chairman; Penne Percy Korth of persons to show cause why it should Mobile Satellite Organization) from Inmarsat, will Washington, DC; Lewis Manilow of not issue an order finding Caribbean remain to monitor the performance of certain public Illinois; and Maria Elena Torano of Star Airlines, Inc., fit, willing, and able, services. Florida. and awarding it certificates of public
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convenience and necessity to engage in SR 299 is the principal arterial Planning, and Construction. The regulations interstate and foreign scheduled air between Interstate 5 and Highway 101 implementing Executive Order 12372 transportation of persons, property and and is designated as a high emphasis regarding intergovernmental consultation on mail. route in he Interregional Roadway Federal programs and activities apply to this program) DATES: Persons wishing to file System. SR 299 is of economic objections should do so no later than importance to the region as it provides Issued on: May 2, 2002. July 11, 2002. access to a vast recreational area and David Nicol, ADDRESSES: Objections and answers to links the upper Sacramento Valley with Assistant Division Administrator-California objections should be filed in Dockets the deepwater port in Eureka. The Division, Federal Highway Administration. OST–01–11164 and OST–01–11198 and project portion of the highway, the [FR Doc. 02–16877 Filed 7–3–02; 8:45 am] addressed to the Department of Buckhorn Grade, represents the only BILLING CODE 4910–22–M Transportation Dockets (SVC–124, obstacle preventing interstate trucks and Room PL–401), U.S. Department of oversize permit loads from utilizing this Transportation, 400 Seventh Street, direct access to the coast. DEPARTMENT OF TRANSPORTATION The proposed project limits extends SW., Washington, DC 20590, and should Federal Aviation Administration be served upon the parties listed in approximately 7.5 miles from the boundary of the Whiskeytown-Shasta- Attachment A to the order. Noise Exposure Map Notice; Receipt of Trinity National Recreation Area to west FOR FURTHER INFORMATION CONTACT: Mr. Noise Compatibility Program and of the Shasta-Trinity-County line. the Howard Serig, Air Carrier Fitness Request for Review, Brownsville/South existing SR 299 corridor within these Division (X–56, Room 6401), U.S. Padre Island International Airport limits consists of a two-lane highway Department of Transportation, 400 Brownsville, TX Seventh Street, SW., Washington, DC with limited passing lanes at various 20590, (202) 366–4822. locations. The road closely follows the AGENCY: Federal Aviation extremely rugged terrain forming a Administration, DOT. Dated: June 27, 2002. steep, twisted alignment with a design ACTION: Notice. Read C. Van de Water, speed of 25 mph. Assistant Secretary for Aviation and The proposed project would construct SUMMARY: The Federal Aviation International Affairs. a new two-lane alignment, with truck Administration (FAA) announces its [FR Doc. 02–16897 Filed 7–3–02; 8:45 am] climbing lanes, standard shoulders, 50 determination that the noise exposure BILLING CODE 4910–62–P mph design speed, and maximum 7% maps submitted by the City of grade. Possible alignment variations Brownsville for Brownsville/South includes bridges, viaducts, and a Padre Island International Airport under DEPARTMENT OF TRANSPORTATION possible tunnel at the Buckhorn the provisions of Title 49 U.S.C., Summit. The replaced SR 299 alignment Chapter 475 (hereinafter referred to as Federal Highway Administration would be relinquished or reclaimed (all ‘‘Title 49’’ ) and 14 CFR Part 150 are in or part). compliance with applicable Environmental Impact Statement: requirements. The FAA also announces Shasta and Trinity Counties, CA Caltrans has been investigating Buckhorn Grade realignment designs of that it is reviewing a proposed noise AGENCY: Federal Administration over 40 years. Since the early 1990’s compatibility program that was (FHWA), DOT. four Project Study Reports have been submitted for Brownsville/South Padre ACTION: Notice of intent. completed. Since 2000, Caltrans has Island International Airport under Part conducted over 11 meetings with the 150 in conjunction with the noise SUMMARY: The Federal Highway public, with local governmental exposure maps and that this program Administration (FHWA) is issuing this officials, and with jurisdictional will be approved or disapproved on or notice to advise the public that an agencies. before December 22, 2002. Environmental Impact Statement (EIS) Letters describing the proposed action DATES: The effective date of the FAA’s will be prepared for a proposed State and soliciting comments will be sent to determination on the noise exposure Route 299 (SR 299) project in Shasta appropriate Federal, State, and local maps and the start of its review of the and Trinity Counties, California. agencies, and to private organizations associated noise compatibility program FOR FURTHER INFORMATION CONTACT: and citizens who have previously is June 25, 2002. The public comment Harry Khani, Transportation Engineer, expressed or are known to have interest period ends August 24, 2002. Federal Highway Administration, 980 in this proposal. In addition, a public FOR FURTHER INFORMATION CONTACT: Ms. Ninth Street, Suite 400, Sacramento, workshop will be held, with public Nan L. Terry, Department of California 95814, telephone: (916) 498– notice given of the time and location. Transportation, Federal Aviation 5056, e-mail: The draft EIS will be available for public Administration, Fort Worth, Texas [email protected]. Chris and agency review and comment prior 76193–0650, (817) 222–5607. Comments Cummings, California Department of to the public workshop. on the proposed noise compatibility Transportation Project Manager, 1657 To ensure that the full range of issues program should also be submitted to the Riverside Drive, Redding, CA 96049, related to this proposed action are above office. telephone: (530) 225–3495, e-mail: addressed and all significant issues SUPPLEMENTARY INFORMATION: _ This chris [email protected]. identified, comments and suggestions notice announces that the FAA finds SUPPLEMENTARY INFORMATION: The are invited from all interested parties. that the noise exposure maps submitted FHWA, in cooperation with the Comments or questions concerning this for Brownsville/South Padre Island California Department of Transportation proposed action and the EIS should be International Airport are in compliance (Caltrans), will prepare an EIS for a directed to the FHWA at the address with applicable requirements of part proposed highway improvement project provided. 150, effective June 25, 2002. Further, the of SR 299 in Shasta and Trinity (Catalog of Federal Domestic Assistance FAA is reviewing a proposed noise Counties, California. Program Number 20.205, Highway Research, compatibility program for that airport
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which will be approved or disapproved 150. such determination does not Interested persons are invited to on or before December 22, 2002. This constitute approval of the applicant’s comment on the proposed program with notice also announces the availability of data, information, or plans, or a specific reference to these factors. All this program for public review and commitment to approve a noise comments, other than those properly comment. compatibility program or to fund the addressed to local land use authorities, Under Title 49, an airport operator implementation of that program. will be considered by the FAA to the may submit to the FAA noise exposure If questions arise concerning the extent practicable. Copies of the noise maps which meet applicable regulations precise relationship of specific exposure maps, the FAA’s evaluation of and which depict noncompatible land properties to noise exposure contours the maps, and the proposed noise uses as of the date of submission of such depicted on a noise exposure map compatibility program are available for maps, a description of projected aircraft submitted under section 103 of the Act, examination at the following locations: operations, and the ways in which such it should be noted that the FAA is not Federal Aviation Administration, operations will affect such maps. Title involved in any way in determining the Airports Division, 2601 Meacham 49 requires such maps to be developed relative locations of specific properties Boulevard, Fort Worth, Texas 76137. in consultation with interested and with regard to the depicted noise Department of Aviation, City of affected parties in the local community, contours, or in interpreting the noise government agencies, and persons using Brownsville, 700 S. Minnesota exposure maps to resolve questions Avenue, Brownsville, Texas 75821. the airport. concerning, for example, which Questions may be directed to the An airport operator who has properties should be covered by the individual named above under the submitted noise exposure maps that are provisions of Title 49. These functions heading, for further information contact. found by the FAA to be in compliance are inseparable from the ultimate land with the requirements of Federal use control and planning Issued in Fort Worth, Texas, June 25, 2002. Aviation Regulations (FAR) part 150, responsibilities of local government. Naomi L. Saunders, promulgated pursuant to Title 49, may These local responsibilities are not Manager, Airports Division. submit a noise compatibility program changed in any way under Part 150 or for FAA approval which sets forth the [FR Doc. 02–16891 Filed 7–3–02; 8:45 am] through the FAA’s review of noise measures the operator has taken or BILLING CODE 4910–13–M exposure maps. Therefore, the proposes for the reduction of existing responsibility for the detailed noncompatible uses and for the overlaying of noise exposure contours DEPARTMENT OF TRANSPORTATION prevention of the introduction of onto the map depicting properties on additional noncompatible uses. Federal Aviation Administration The City of Brownsville submitted to the surface rests exclusively with the airport operator which submitted those the FAA on June 17, 2002, noise Approval of Noise Compatibility exposure maps, descriptions and other maps, or with those public agencies and planning agencies with which Program; Seattle-Tacoma International documentation which were produced Airport, Seattle, WA during the Federal Aviation Regulations consultation is required under Title 49. (FAR) Part 150 Airport Noise The FAA has relied on the certification AGENCY: Federal Aviation Compatibility Planning Study for by the airport operator, under section Administration, DOT. 150.21 of FAR part 150, that the Brownsville/South Padre Island ACTION: Notice. International Airport beginning on statutorily required consultation has September 25, 1998. It was requested been accomplished. SUMMARY: The Federal Aviation that the FAA review this material as the The FAA has formally received the Administration (FAA) announces its noise exposure maps, as described in noise compatibility program for the findings on the noise compatibility Title 49, and that the noise mitigation Brownsville/South Padre Island program, submitted by the manager of measures, to be implemented jointly by International Airport, also effective on the airfield line of business for Seattle- the airport and surrounding June 25, 2002. Preliminary review of the Tacoma International Airport, under the communities, be approved as a noise submitted material indicates that it provisions of 49 U.S.C., Sec. 47504(b), compatibility program under Title 49. conforms to the requirements for the and 14 CFR part 150. These findings are The FAA has completed its review of submittal of noise compatibility made in recognition of the description the noise exposure maps and related programs, but that further review will be of federal and non-federal descriptions submitted by the City of necessary prior to approval or responsibilities in Senate Report No. Brownsville. The specific maps under disapproval of the program. The formal 96–52 (1980). consideration are: 1999 Noise Exposure review period, limited by law to a On December 3, 2001, the FAA Map Existing Condition Noise Exposure maximum of 180 days, will be determined that the noise exposure Map, Exhibit 4.6 and 2004 Future completed on or before December 22, maps submitted, under part 150, by the Condition Noise Exposure Map with 2002. manager of the airfield line of business Existing Runway Configuration, Exhibit The FAA’s detailed evaluation will be for Seattle-Tacoma International 5.2a in the submission. conducted under the provisions of 14 Airport, were in compliance with The FAA has determined that these CFR part 150, section 150.33. The applicable requirements. On June 3, maps for Brownsville/South Padre primary considerations in the 2002, the Associate Administrator for Island International Airport are in evaluation process are whether the Airports approved the Seattle-Tacoma compliance with applicable proposed measures may reduce the level International Airport noise requirements. This determination is of aviation safety, create an undue compatibility program. Program effective on June 25, 2002. The FAA’s burden on interstate or foreign measures 1, 9, 12, 13, 14, 15, 16, 17, 18, determination on an airport operator’s commerce, or be reasonably consistent and 19 received outright approval. noise exposure maps is limited to a with obtaining the goal of reducing Measures 5 and 6 were approved as finding that the maps were developed in existing noncompatible land uses and voluntary. Measures 3, 4 and 10 were accordance with the procedures preventing the introduction of disapproved, pending submission of contained in Appendix A of FAR Part additional noncompatible land uses. additional information. Measures 7 and
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11 were disapproved outright, 2 was types or classes of aeronautical uses, days (other than the use of new flight disapproved, in part, pending violate the terms of airport grant procedures for noise control). Failure to submission of additional information. agreements, or intrude into areas approve or disapprove such program Measure 8 required no FAA action. preempted by the federal government. within the 180-day period shall be EFFECTIVE DATE: The effective date of the d. Program measures relating to the deemed to be an approval of such FAA’s approval of the Seattle-Tacoma use of flight procedures can be program. The FAA completed its review International Airport noise implemented within the period covered and determined that the procedural and compatibility program is June 3, 2002. by the program without derogating substantive requirements of 49 U.S.C., safety, adversely affecting the efficient FOR FURTHER INFORMATION CONTACT: Sec. 47504(b), and FAR 150 have been use and management of the navigable Dennis G. Ossenkop; Federal Aviation satisfied. The overall program, therefore, airspace and airport traffic control Administration; Northwest Mountain was approved by the Associate systems, or adversely affecting other Region; Airports Division, ANM–611; Administrator for Airports, effective powers and responsibilities of the 1601 Lind Avenue, SW., Renton, Administrator, as prescribed by law. June 3, 2002. Washington, 98055–4056. Documents Specific limitations with respect to These determinations are set forth in reflecting this FAA action may be the FAA’s approval of an airport noise detail in a Record of Approval, endorsed reviewed at this same location. compatibility program are delineated in by the Associate Administrator for SUPPLEMENTARY INFORMATION: This FAR, part 150, section 150.5. Approval Airports on June 3, 2002. The Record of notice announces that the FAA has is not a determination concerning the Approval, as well as other evaluation given its overall approval to the noise acceptability of land uses under federal, materials and the documents compatibility program for Seattle- state, or local law. Approval does not by comprising the submittal are available Tacoma International Airport, effective itself constitute an FAA implementing for review at the FAA office listed above June 3, 2002. Under 49 U.S.C., Sec. action. A request for federal action or 27504(a), an airport operator, who has and at the administrative offices of the approval to implement specific noise Seattle-Tacoma International Airport. previously submitted a noise exposure compatibility measures may be map, may submit to the FAA a noise required, and an FAA decision on the Issued in Renton, Washington, on June 12, compatibile program that sets forth the request may require an environmental 2002. measures taken or proposed by the assessment of the proposed action. Lowell H. Johnson, airport operator for the reduction of Approval does not constitute a Manager, Airports Division, Northwest existing noncompatibility land uses, commitment by the FAA to financially Mountain Region. and prevention of additional assist in the implementation of the [FR Doc. 02–16895 Filed 7–3–02; 8:45 am] noncompatible land uses within the program, or a determination that all BILLING CODE 4910–13–M area covered by the noise exposure measures covered by the program are maps. The 49 U.S.C., Sec. 27503(a)(1), eligible for grant-in-aid funding from the requires such a program to be developed FAA. Where federal funding is sought, DEPARTMENT OF TRANSPORTATION in consultation with interested and requests for project grants must be affected parties, including the state, submitted to the Seattle Airports District Federal Aviation Administration local communities, government Office. agencies, airport users, and FAA The manager of the airfield line of Third Party War Risk Liability personnel. business for Seattle-Tacoma Insurance Each airport noise compatibility International Airport submitted to the program developed in accordance with FAA the noise exposure maps, AGENCY: Federal Aviation Federal Aviation Regulations (FAR), descriptions, and other documentation Administration, DOT. part 150, is a local, not federal, program. produced during the noise compatibility The FAA does not substitute its planning study contacted at Seattle- ACTION: Notice of Issuance of New FAA judgment for that of the airport Tacoma International Airport. The Third Party War Risk Liability proprietor, with respect to which Seattle-Tacoma International Airport Insurance. measures should be recommended for noise exposure maps were determined action. The FAA’s approval or by the FAA, on December 3, 2001, to be SUMMARY: The Federal Aviation disapproval of the FAR, part 150, in compliance with applicable Administration has issued a new Third program recommendations is measured requirements. Notice of this Party War Risk Liability Insurance according to the standards expressed in determination was published in the Policy to replace the policies that part 150 and the Aviation Safety and Federal Register on December 10, 2001. terminated on June 18, 2002. The new Noise Abatement Act of 1979, and it is The proposed Seattle-Tacoma Policy changes the amount and basis of limited to the following determinations: International Airport noise the premium to be charged, incorporates a. The noise compatibility program compatibility program is comprised of interim amendments made since the was developed in accordance with the actions designed for phased issuance of the premium policies, and provisions and procedures of FAR, part implementation by airport management 150. and adjacent jurisdictions, from the date adds actions in the event of default by b. Program measures are reasonably of study completion to the year 2004. It the insured due to failure to pay consistent with achieving the goals of was requested that the FAA evaluate premiums. The premium is based upon reducing existing noncompatible land and approve this material as a noise the extent to which the Insured uses around the airport, and preventing compatibility program, as described in conducts passenger or (dedicated) air the introduction of additional 49 U.S.C., Sec. 47504(a). The FAA began cargo operations, or a combination of noncompatible land uses. its review of the program on December both. There are four classes of premiums c. Program measures would not create 3, 2001, and was required by a provision based upon the coverage limit held by an undue burden on interstate or foreign of 49 U.S.C., Sec. 47504(b), to approve the carrier. commerce, unjustly discriminate against or disapprove the program within 180
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Class I: Coverage less than One Billion U.S. Dollars— $0.03 × lll enplanements + ($0.03 × lll RPMs ÷ 1000) + $0.17 × RTMs ÷ 1000 ...... $lll Class II: Coverage One Billion U.S. Dollars or more, but less than Two Billion U.S. Dollars— $0.04 × lll enplanements + ($0.04 × lll RPMs ÷ 1000) + $0.25 × RTMs ÷ 1000 ...... $lll Class III: Coverage Two Billion U.S. Dollars or more, but less than Three Billion U.S. Dollars— $0.05 × lll enplanements + ($0.05 × lll RPMs ÷ 1000) + $0.30 × RTMs ÷ 1000 ...... $lll Class IV: Coverage Three Billion U.S. Dollars or more— $0.05 × lll enplanements + ($0.05 × lll RPMs ÷ 1000) + $0.33 × RTMs ÷ 1000 ...... $lll
Total Premium ...... $lll
DATES: New Policy in Effect: 23:59 GMT DEPARTMENT OF TRANSPORTATION available. With the approval of the (7:59 pm EDT) June 18, 2002 until 23:59 Chairperson, members of the public may GMT (7:59 pm EDT) August 17, 2002. Federal Aviation Administration present oral statements at the meeting. Persons desiring to attend and persons FOR FURTHER INFORMATION CONTACT: Air Traffic Procedures Advisory desiring to present oral statements Helen Kish, Program Analyst, APO–3, or Committee should notify the person listed above Eric Nelson, Program Analyst, APO–3, AGENCY: Federal Aviation not later than July 12, 2001. The next Federal Aviation Administration, 800 Administration (FAA), DOT. quarterly meeting of the FAA ATPAC is Independence Ave., SW, Washington, planned to be held from October 7–10, SUMMARY: The FAA is issuing this notice DC 20591, telephone 202–267–9943 or to advise the public that a meeting of 2002, in Washington, DC. 202–267–3090. To obtain copy of the Any member of the public may the Federal Aviation Administration Air new policy go to FAA Insurance Web present a written statement to the Traffic Procedures Advisory Committee Committee at any time at the address site: http://api.hq.faa.gov/911policies/ (ATPAC) will be held to review present given above. inscover.html. air traffic control procedures and Issued in Washington, DC, on July 2, 2002. SUPPLEMENTARY INFORMATION: On June practices or standardization, David W. Madison, 13, 2002, the Secretary of clarification, and upgrading of terminology and procedures. Acting Executive Dirctor, Air Traffic Transportation authorized a 60-day Procedures Advisory Committee. extension of aviation insurance DATES: The meting will be held from [FR Doc. 02–16997 Filed 7–2–02; 1:56 pm] provided by the Federal Aviation July 15–18, 2002, from 9 a.m. to 4 p.m. BILLING CODE 4910–13–M Administration as follows: each day. ADDRESSES: The meeting will be held at MEMORANDUM TO THE PRESIDENT the Department of Transportation, DEPARTMENT OF TRANSPORTATION ‘‘Pursuant to the authority delegated to me NASSIF Building, 400 7th Street, SW., in paragraph (3) of Presidential Room 3328, Washington, DC 20590. Federal Aviation Administration Determination No. 01–29 of September 23, FOR FURTHER INFORMATION CONTACT: Mr. 2001, I hereby extend that determination to David W. Madison, Acting Executive Notice of Intent To Rule on Application allow for the provision of aviation insurance Director, ATPAC, Air Traffic Planning To Impose and Use a Passenger and reinsurance coverage for U.S. Flag and Procedures 800 Independence Facility Charge (PFC) at San Luis commercial air carrier service in domestic Avenue, SW., Washington, DC 20591, Obispo County Regional Airport, San and international operations for an additional telephone (202) 267–3725. Luis Obispo, CA 60 days. SUPPLEMENTARY INFORMATION: Pursuant AGENCY: Pursuant to section 44306(c) of chapter 443 Federal Aviation to Section 10(a)(2) of the Federal Administration (FAA), DOT. of 49 U.S.C.—Aviation Insurance, the period Advisory Committee Act (Pub. L. 92– ACTION: for provision of insurance shall be extended 463; 5 U.S.C. App. 2), notice is hereby Notice of intent to rule on from June 18, 2002, through August 17, given of a meeting of the ATPAC to be application. 2002.’’ held July 15 through July 18, 2002, at SUMMARY: The FAA proposes to rule and /s/ Norman Y. Mineta the Department of Transportation, invites public comment on the NASSIF Building 400 7th Street, SW., application to impose and use the Affected Public: U.S. domestic airline Room 3328, Washington, DC 20590. revenue from a PFC at San Luis Obispo industry—Air Carriers who previously The agenda for this meeting will County Regional Airport under the were insured under the Third Party cover; a continuation of the Committee’s provisions of the Aviation Safety and War-Risk Liability Insurance Policies review of present air traffic control Capacity Expansion Act of 1990 (Title with the Federal Aviation procedures and practices for IX of the Omnibus Budget Administration or Air Carriers who are standardization, clarification, and Reconciliation Act of 1990) (Public Law interested in obtaining insurance. upgrading of terminology and 101–508) and Part 158 of the Federal Issued in Washington, DC on June 26, procedures. It will also include: Aviation Regulations (14 CFR Part 158). 1. Approval of Minutes. 2002. DATES: Comments must be received on 2. Submission and Discussion of or before August 5, 2002. Nan Shellabarger, Areas of Concern. Deputy Director, Office of Aviation Policy and 3. Discussion of Potential Safety ADDRESSES: Comments on this Plans. Items. application may be mailed or delivered [FR Doc. 02–16893 Filed 7–3–02; 8:45 am] 4. Report from Executive Director. in triplicate to the FAA at the following address: Federal Aviation BILLING CODE 4910–13–M 5. Items of Interest. 6. Discussion and agreement of Administration, Airports Division, location and dates for subsequent 15000 Aviation Blvd., Hawthorne, CA meetings. 90250, or San Francisco Airports Attendance is open to the interested District Office, 831 Mitten Road, Room public but limited to the space 210, Burlingame, CA 94010–1303. In
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addition, one copy of any comments of Airport Master Plan, Install Omni- uses U.S.-flag vessels, a waiver will not submitted to the FAA must be mailed or Directional Approach Lighting System be granted. delivered to Mr. Martin Pehl, Assistant for Runway 29, Relocate Threshold for DATES: Submit comments on or before Airports Manager, County of San Luis Runway 25, Construction of Aircraft August 5, 2002. Obispo, at the following address: 903– Rescue and Firefighting Facility, ADDRESSES: 5 Airport Drive, San Luis Obispo, CA Construction of Taxiway L, Comments should refer to 93401. Air carriers and foreign air Construction of Taxiway N. docket number MARAD–2002–12684. carriers may submit copies of written Class or classes of air carriers which Written comments may be submitted by comments previously provided to the the public agency has requested not be hand or by mail to the Docket Clerk, County of San Luis Obispo under required to collect PFCs: nonscheduled/ U.S. DOT Dockets, Room PL–401, section 158.23 of Part 158. on-demand air carriers filing FAA Form Department of Transportation, 400 7th 1800–31. St., SW., Washington, DC 20590–0001. FOR FURTHER INFORMATION CONTACT: You may also send comments Marlys Vandervelde, Airports Program Any person may inspect the application in person at the FAA office electronically via the Internet at http:// Analyst, San Francisco Airports District dmses.dot.gov/submit/. All comments listed above under FOR FURTHER Office, 831 Mitten Road, Room 210, will become part of this docket and will INFORMATION CONTACT and at the FAA Burlingame, CA 94010–1303, telephone: be available for inspection and copying Regional Airports Division located at: (650) 876–2806. The application may be at the above address between 10 a.m. Federal Aviation Administration, reviewed in person at this same and 5 p.m., E.T., Monday through Airports Division, 15000 Aviation Blvd., location. Friday, except federal holidays. An Lawndale, CA 90261. In addition, any SUPPLEMENTARY INFORMATION: The FAA electronic version of this document and person may, upon request, inspect the proposes to rule and invites public all documents entered into this docket application, notice and other documents comment on the application to impose is available on the World Wide Web at germane to the application in person at and use the revenue from a PFC at San http://dms.dot.gov. the San Luis Obispo County Airport. Luis Obispo County Regional Airport FOR FURTHER INFORMATION CONTACT: under the provisions of the Aviation Issued in Hawthorne, California, on June 20, 2002. Kathleen Dunn, U.S. Department of Safety and Capacity Expansion Act of Transportation, Maritime Herman C. Bliss, 1990 (Title IX of the Omnibus Budget Administration, MAR–832 Room 7201, Reconciliation Act of 1990) (Public Law Manager, Airports Division, Western-Pacific 400 Seventh Street, SW., Washington, Region. 101–508) and Part 158 of the Federal DC 20590. Telephone 202–366–2307. Aviation Regulations (14 CFR Part 158). [FR Doc. 02–16892 Filed 7–3–02; 8:45 am] SUPPLEMENTARY INFORMATION: Title V of On June 20, 2002, the FAA BILLING CODE 4910–13–M determined that the application to Pub. L. 105–383 provides authority to impose and use a PFC submitted by the the Secretary of Transportation to County of San Luis Obispo was DEPARTMENT OF TRANSPORTATION administratively waive the U.S.-build substantially complete within the requirements of the Jones Act, and other requirements of section 158.25 of Part Maritime Administration statutes, for small commercial passenger vessels (no more than 12 passengers). 158. The FAA will approve or [Docket Number: MARAD–2002–12684] disapprove the application, in whole or This authority has been delegated to the Maritime Administration per 49 CFR in part, no later than September 26, Requested Administrative Waiver of 1.66, Delegations to the Maritime 2002. the Coastwise Trade Laws The following is a brief overview of Administrator, as amended. By this the impose and use application No. 02– AGENCY: Maritime Administration, notice, MARAD is publishing 07–C–00–SBP: Department of Transportation. information on a vessel for which a Level of proposed PFC: $4.50. ACTION: Invitation for public comments request for a U.S.-build waiver has been Proposed charge effective date: July 1, on a requested administrative waiver of received, and for which MARAD 2015. the Coastwise Trade Laws for the vessel requests comments from interested Proposed charge expiration date: July JEANNE PIERRE II. parties. Comments should refer to the 1, 2019. docket number of this notice and the Total estimated PFC revenue: SUMMARY: As authorized by Pub. L. 105– vessel name in order for MARAD to $1,790,380. 383, the Secretary of Transportation, as properly consider the comments. Brief description of the proposed represented by the Maritime Comments should also state the projects: Construction of Hangar Administration (MARAD), is authorized commenter’s interest in the waiver Taxiways, Construction of Runway 11– to grant waivers of the U.S.-build application, and address the waiver 29 Blast Pads, Construction of Airport requirement of the coastwise laws under criteria given in § 388.4 of MARAD’S Service Road, Construction of Northeast certain circumstances. A request for regulations at 46 CFR Part 388. Access Road, Construction of ‘‘EPA/ such a waiver has been received by Vessel Proposed for Waiver of the U.S.- National Discharge Elimination System’’ MARAD. The vessel, and a description Build Requirement Pollution Control Facility, Runway 11– of the proposed service, is listed below. 29 & Taxiway A Extension (Phase I), Interested parties may comment on the (1) Name of vessel and owner for Runway 11–29 & Taxiway A Extension effect this action may have on U.S. which waiver is requested. (Phase II), Safety Area Grading and vessel builders or businesses in the U.S. Name of vessel: JEANNE PIERRE II. Drainage, Construction of Southwest that use U.S.-flag vessels. If MARAD Owner: James K. Pearson and Sarah Apron, Rehabilitation/Reconstruction of determines that in accordance with Pub. Peck Pearson. Taxiway A, Construction of Taxiway D, L. 105–383 and MARAD’s regulations at (2) Size, capacity and tonnage of Construction of Taxiway H, 46 CFR Part 388 (65 FR 6905; February vessel. According to the applicant: Construction of Taxiway M, Acquisition 11, 2000) that the issuance of the waiver ‘‘LOA 44′3″; Beam: 13′10″; Draft: 5′9″; of Runway Sweeping Equipment, will have an unduly adverse effect on a Displacement Tonnage: 23,550 lbs; Airfield Lighting Improvements, Update U.S.-vessel builder or a business that Capacity: Maximum of 6 passengers
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plus 2 crew or total of 8 persons on ACTION: Invitation for public comments received, and for which MARAD board.’’ on a requested administrative waiver of requests comments from interested (3) Intended use for vessel, including the Coastwise Trade Laws for the vessel parties. Comments should refer to the geographic region of intended operation SPINDRIFT. docket number of this notice and the and trade. According to the applicant: vessel name in order for MARAD to ‘‘* * * uninspected vessel engaged in SUMMARY: As authorized by Pub. L. 105– properly consider the comments. crewed sight seeing charters on the 383, the Secretary of Transportation, as Comments should also state the inside coastal waters of Washington represented by the Maritime commenter’s interest in the waiver State—specifically Puget Sound, the San Administration (MARAD), is authorized application, and address the waiver Juan Islands, and Straits of Juan DeFuca to grant waivers of the U.S.-build criteria given in § 388.4 of MARAD’S as far west as Cape Flattery; crewed requirement of the coastwise laws under regulations at 46 CFR Part 388. charters to British Columbia from the certain circumstances. A request for Vessel Proposed for Waiver of the U.S.- coastal waters of Washington State; such a waiver has been received by Build Requirement crewed charters from British Columbia MARAD. The vessel, and a description to the coastal waters of Washington of the proposed service, is listed below. (1) Name of vessel and owner for State; and crewed charters on the Inside Interested parties may comment on the which waiver is requested. Passage to and including the coastal effect this action may have on U.S. Name of vessel: SPINDRIFT. Owner: waters of Southeast Alaska.’’ vessel builders or businesses in the U.S. Mark I. and Monique Davies. (4) Date and Place of construction and that use U.S.-flag vessels. If MARAD (2) Size, capacity and tonnage of (if applicable) rebuilding. Date of determines that in accordance with Pub. vessel. According to the applicant: construction: 1993. Place of L. 105–383 and MARAD’s regulations at ‘‘Length-over-all (LOA): 43 feet 2 inches; construction: St. Hilaire, France. 46 CFR Part 388 (65 FR 6905; February Beam: 12 feet 7 inches; Draft: 6 feet; 6 (5) A statement on the impact this 11, 2000) that the issuance of the waiver berths; Diesel auxiliary Power: 63 HP; waiver will have on other commercial will have an unduly adverse effect on a Tonnage: 11 NRT pursuant to 46 U.S.C. passenger vessel operators. According to U.S.-vessel builder or a business that 14502’’ the applicant: ‘‘We would not compete uses U.S.-flag vessels, a waiver will not (3) Intended use for vessel, including with any commercial ferry services be granted. geographic region of intended operation which transport persons from one DATES: Submit comments on or before and trade. According to the applicant: If location to another for a fee. Most of our August 5, 2002. the waiver be granted, the vessel would charters would leave from and return to ADDRESSES: Comments should refer to be engaged in crewed charter operations the same location, although some would docket number MARAD–2002–12686. (owners as captain and crew) along the be point to point. There are a few small, Written comments may be submitted by East Coast of the United States, individual, independent operators in hand or by mail to the Docket Clerk, primarily in Maine waters; and possibly both Washington and Southeast Alaska U.S. DOT Dockets, Room PL–401, in the U.S. Virgin Islands and Puerto that take guests on crewed sailing Department of Transportation, 400 7th Rico as well.’’ charters or crewed sailing vacations as St., SW., Washington, DC 20590–0001. (4) Date and Place of construction and we propose to do. With baby boomers You may also send comments (if applicable) rebuilding. Date of and retirees, the market is large and the electronically via the Internet at http:// construction: 1991. Place of variation in charter specialties (ie. Sport dmses.dot.gov/submit/. All comments construction: Manila, The Philippines. fishing, diving, nature educations, will become part of this docket and will (5) A statement on the impact this gourmet meals, learn to sail cruises, etc.) be available for inspection and copying waiver will have on other commercial great enough that we don’t believe our at the above address between 10 a.m. passenger vessel operators. According to sight seeing cruises would adversely and 5 p.m., E.T., Monday through the applicant: ‘‘We do not believe this affect existing operators.’’ Friday, except federal holidays. An intended use of our sailboat will have (6) A statement on the impact this electronic version of this document and any significant adverse impact on other waiver will have on U.S. shipyards. all documents entered into this docket commercial passenger vessel operators. According to the applicant: ‘‘We don’t is available on the World Wide Web at We intend to provide only crewed believe this application will have any http://dms.dot.gov. charters, serving as captain and crew impact on US Shipyards.’’ FOR FURTHER INFORMATION CONTACT: ourselves, and to do so only on an Dated: June 28, 2002. Kathleen Dunn, U.S. Department of occasional basis rather than as a source Transportation, Maritime By order of the Maritime Administrator. of livelihood. We anticipate that most of Administration, MAR–832 Room 7201, Joel C. Richard, the chartering will be done in Maine 400 Seventh Street, SW., Washington, waters, where almost all of the crewed Secretary, Maritime Administration. DC 20590. Telephone 202–366–2307. charters are much larger vessels in the [FR Doc. 02–16773 Filed 7–3–02; 8:45 am] SUPPLEMENTARY INFORMATION: Title V of Windjammer (schooner) fleet in BILLING CODE 4910–81–P Pub. L. 105–383 provides authority to Bothbay, Camden and other points East, the Secretary of Transportation to for which we present virtually no administratively waive the U.S.-build competition. Our base of operations DEPARTMENT OF TRANSPORTATON requirements of the Jones Act, and other would be in Harpswell, ME (New Maritime Administration statutes, for small commercial passenger Meadows River, NE Casco Bay), and we vessels (no more than 12 passengers). are aware of only one or possibly two This authority has been delegated to the other owners of sailing vessels who offer [Docket Number: MARAD–2002–12686] Maritime Administration per 49 CFR crewed charters in this immediate area Requested Administrative Waiver of § 1.66, Delegations to the Maritime of the coast * * * We anticipate that the Coastwise Trade Laws Administrator, as amended. By this our use of this vessel for crewed charter notice, MARAD is publishing elsewhere on the East Coast of the U.S. AGENCY: Maritime Administration, information on a vessel for which a will be only occasional and seasonal, as Department of Transportation. request for a U.S.-build waiver has been we sail southward in the fall and
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northward from the Caribbean in the Department of Transportation, 400 7th (4) Date and Place of construction and spring.’’ St., SW., Washington, DC 20590–0001. (if applicable) rebuilding. Date of (6) A statement on the impact this You may also send comments construction: 1987. Place of waiver will have on U.S. shipyards. electronically via the Internet at http:// construction: Kowloon, Hong Kong. According to the applicant: ‘‘We chose dmses.dot.gov/submit/. All comments (5) A statement on the impact this our vessel SPINDRIFT precisely because will become part of this docket and will waiver will have on other commercial of her unique features that we could not be available for inspection and copying passenger vessel operators. According to find in any U.S.-built sailboat of the at the above address between 10 a.m. the applicant: ‘‘We do not know of same size and configuration. The boats and 5 p.m., E.T., Monday through another vessel of this type operating in now built in the U.S. * * * did and do Friday, except federal holidays. An our area of Southwest Florida. There is not meet our needs or specifications, electronic version of this document and a commercial operator in Punta Gorda and we were not able to afford a custom all documents entered into this docket who takes out head boat cruises for sight design either in the U.S. or abroad. In is available on the World Wide Web at seeing tours. However that is an entirely short, we believe that the impact of the http://dms.dot.gov. different operation from our occasional waiver requested for this vessel would FOR FURTHER INFORMATION CONTACT: private live aboard 7 day charters that be negligible.’’ Kathleen Dunn, U.S. Department of our guests usually prefer.’’ Dated: June 28, 2002. Transportation, Maritime (6) A statement on the impact this By order of the Maritime Administrator. Administration, MAR–832 Room 7201, waiver will have on U.S. shipyards. Joel C. Richard, 400 Seventh Street, SW., Washington, According to the applicant: ‘‘Since our Secretary, Maritime Administration. DC 20590. Telephone 202–366–2307. vessel is 15 years old and lightly used in the occasional charter trade we can [FR Doc. 02–16775 Filed 7–3–02; 8:45 am] SUPPLEMENTARY INFORMATION: Title V of not see any adverse affect on US BILLING CODE 4910–81–P Pub. L. 105–383 provides authority to the Secretary of Transportation to Shipyards. Rather we would expect a administratively waive the U.S.-build positive effect on the local maintenance DEPARTMENT OF TRANSPORTATION requirements of the Jones Act, and other yards if we are able to get more use out statutes, for small commercial passenger of the vessel.’’ Maritime Administration vessels (no more than 12 passengers). Dated: June 28, 2002. [Docket Number: MARAD–2002–12685] This authority has been delegated to the By order of the Maritime Administrator. Maritime Administration per 49 CFR Joel C. Richard, Requested Administrative Waiver of § 1.66, Delegations to the Maritime Secretary, Maritime Administration. the Coastwise Trade Laws Administrator, as amended. By this [FR Doc. 02–16774 Filed 7–3–02; 8:45 am] notice, MARAD is publishing BILLING CODE 4910–81–P AGENCY: Maritime Administration, information on a vessel for which a Department of Transportation. request for a U.S.-build waiver has been ACTION: Invitation for public comments received, and for which MARAD DEPARTMENT OF TRANSPORTATION on a requested administrative waiver of requests comments from interested the Coastwise Trade Laws for the vessel parties. Comments should refer to the Surface Transportation Board TAI–PAN. docket number of this notice and the [STB Finance Docket No. 34054] vessel name in order for MARAD to SUMMARY: As authorized by Pub. L. 105– properly consider the comments. 383, the Secretary of Transportation, as Morristown & Erie Railway, Inc.— Comments should also state the represented by the Maritime Modified Rail Certificate commenter’s interest in the waiver Administration (MARAD), is authorized application, and address the waiver On June 5, 2002, as amended by to grant waivers of the U.S.-build criteria given in § 388.4 of MARAD’S facsimile on June 24, 2002, Morristown requirement of the coastwise laws under regulations at 46 CFR Part 388. & Erie Railway, Inc. (M&E), filed an certain circumstances. A request for application for a modified certificate of such a waiver has been received by Vessel Proposed for Waiver of the U.S.- public convenience and necessity under MARAD. The vessel, and a description Build Requirement 49 CFR 1150, subpart C, Modified of the proposed service, is listed below. (1) Name of vessel and owner for Certificate of Public Convenience and Interested parties may comment on the which waiver is requested. Necessity, to operate certain railroad effect this action may have on U.S. Name of vessel: TAI–PAN. Owner: lines in New Jersey. Based on M&E’s vessel builders or businesses in the U.S. Tai-Pan Inc. representations, the following lines will that use U.S.-flag vessels. If MARAD (2) Size, capacity and tonnage of be activated for service in four phases: determines that in accordance with Pub. vessel. According to the applicant: ‘‘The (1) The former line of the Staten Island L. 105–383 and MARAD’s regulations at length is 67.0, breadth 19 and depth 4.6. Railway Corporation (Staten Island 46 CFR Part 388 (65 FR 6905; February Her tonnage is 29 gross, 26 net * * * Railway) from milepost 7.4 immediately 11, 2000) that the issuance of the waiver (3) Intended use for vessel, including west of the New Jersey Turnpike in will have an unduly adverse effect on a geographic region of intended operation Linden to milepost 9.8 immediately east U.S.-vessel builder or a business that and trade. According to the applicant: of St. Georges Avenue in Linden; (2) the uses U.S.-flag vessels, a waiver will not ‘‘We would like to be able to charter the former line of the Staten Island Railway be granted. vessel in the United States and possibly from milepost 9.8 to milepost 12.09 at DATES: Submit comments on or before occasional trips to the Bahamas. The the junction of the Staten Island August 5, 2002. vast majority of the charters would Railway and the New Jersey Transit (NJ ADDRESSES: Comments should refer to center in the southwest section of Transit) (Raritan Valley Line) in docket number MARAD–2002–12685. Florida as she is based in Punta Gorda, Cranford, exclusive of the portion of the Written comments may be submitted by Florida. Punta Gorda is approximately line immediately west of milepost 9.8 to hand or by mail to the Docket Clerk, 60 miles south of Sarasota and 30 miles milepost 11.5 at the municipal U.S. DOT Dockets, Room PL–401, north of Ft. Myers, Florida.’’ boundary of the Borough of Roselle and
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the Township of Cranford; (3) the The rail lines qualify for a modified SUPPLEMENTARY INFORMATION: Notice is former Rahway Valley Railroad certificate of public convenience and hereby given that the Certificate of Company (Rahway Valley) main line necessity. See Common Carrier Status of Authority issued by the Treasury to the from milepost 0 at the junction with the States, State Agencies and above named Company, under the NJ Transit (Raritan Valley Line) in Instrumentalities and Political United States Code, Title 31, Sections Cranford to milepost 3.9 immediately Subdivisions, Finance Docket No. 9304–9308, to qualify as an acceptable southeast of the Rahway River Bridge in 28990F (ICC served July 16, 1981). surety on Federal bonds is terminated Union, inclusive of the branch line from M&E indicates that, even though effective today. the junction at milepost 3.1 and rehabilitation subsidies are being The Company was last listed as an extending northeast approximately 1.1 provided, the lines will operate without acceptable surety on Federal bonds at 66 miles, and the branch line from the any operating subsidies. M&E also FR 35055, July 2, 2001. junction at milepost 1.1 and extending indicates that there are no preconditions With respect to any bonds, including southeast approximately .50 miles; and for shippers to meet in order to receive continuous bonds, currently in force (4) the former Rahway Valley main line rail service, and that it has obtained with above listed Company, bond- from milepost 3.9 immediately liability insurance coverage. approving officers should secure new southeast of the Rahway River Bridge in This notice will be served on the bonds with acceptable sureties in those Union to milepost 7.1 at the junction of Association of American Railroads (Car instances where a significant amount of the Rahway Valley Line and the NJ Service Division) as agent for all liability remains outstanding. In Transit (Morris and Essex Line) in railroads subscribing to the car-service addition, in no event, should bonds that Summit, NJ.1 These lines are currently and car-hire agreement: Association of are continuous in nature be renewed. in the custody of the County of Union, American Railroads, 50 F Street NW., The Circular may be viewed and NJ (the County). Washington, DC 20001; and on the downloaded through the Internet at On May 9, 2002, the County and M&E American Short Line and Regional http://www.fms.treas.gov/c570/ entered into a 10-year operating Railroad Association: American Short index.html. A hard copy may be agreement commencing on May 15, Line and Regional Railroad Association, purchased from the Government 2002.2 Under the agreement, which 1120 G Street NW., Suite 520, Printing Office (GPO), Subscription contemplates rehabilitation of the lines, Washington, DC 20005. Service, Washington, DC, telephone M&E will complete all rehabilitation of Board decisions and notices are (202) 512–1800. When ordering the the lines specified in Phases I and II, available on our Web site at Circular from GPO, use the following except for the limitation specified in www.stb.dot.gov.’’ stock number: 769–004–04067–1. Phase II, and be ready to initiate rail Decided: June 27, 2002. Questions concerning this notice may services over these segments within 6 be directed to the U.S. Department of By the Board, David M. Konschnik, months. M&E will not proceed with the Director, Office of Proceedings. the Treasury, Financial Management rehabilitation of Phase III lines and the Service, Financial Accounting and Vernon A. Williams, commencement of rail services until it Services Division, Surety Bond Branch, Secretary. receives the written concurrence of the 3700 East-West Highway, Room 6F07, County. Upon receiving such [FR Doc. 02–16844 Filed 7–3–02; 8:45 am] Hyattsville, MD 20782. BILLING CODE 4915–00–P concurrence, M&E agrees to proceed Dated: June, 24 2002. with the rehabilitation of Phase III lines Judith R. Tillman, and initiate service over this portion within 9 months. Phase IV lines will be DEPARTMENT OF THE TREASURY Assistant Commissioner, Financial Operations, Financial Management Service. rehabilitated only upon the mutual consent of the County and M&E. Fiscal Service [FR Doc. 02–16791 Filed 7–3–02; 8:45 am] M&E states that it will interline freight BILLING CODE 4810–35–M Surety Companies Acceptable on with Consolidated Rail Corporation Federal Bonds: Termination—Sorema (Conrail), Norfolk Southern Railway North America Reinsurance Company DEPARTMENT OF THE TREASURY Company (NS) and CSX Transportation, Inc. (CSXT), at Cranford, Bayway AGENCY: Financial Management Service, Fiscal Service (Linden), and Bound Brook, NJ. In Fiscal Service, Department of the addition, M&E states that it will be able Treasury. Surety Companies Acceptable on to operate through service by using its ACTION: Notice. Federal Bonds: Termination— rights to operate over NJ Transit at Universal Bonding Insurance Company Cranford Junction, NJ.3 SUMMARY: This is Supplement No. 27 to the Treasury Department Circular 570; AGENCY: Financial Management Service, 1 Abandonment of the lines was previously 2001 Revision, Published July 2, 2001 at Fiscal Service, Department of the authorized in Staten Island Railway Corporation- 66 FR 35024. Treasury. Abandonment, Docket No. AB–263 (Sub-No. 3) (ICC FOR FURTHER INFORMATION CONTACT ACTION: Notice. served Dec. 5, 1991), and Rahway Valley Railroad : Surety Bond Branch at (202) 874–6915. Company-Abandonment-Between Aldene and SUMMARY: This is Supplement No. 28 to Summit in Union County, NJ, Docket No. AB–211 the Treasury Department Circular 570; (ICC served Aug. 27, 1992). According to M&E, line subject lines. Moreover, it states that there is no segments of the Staten Island Railway and the connection between the former Rahway Valley and 2001 Revision, published July 2, 2001 at entire line of Rahway Valley were subsequently Staten Island Railway lines. Conrail contends that 66 FR 35024. conveyed to the State of New Jersey. the connection M&E seeks to create is over the FOR FURTHER INFORMATION CONTACT: 2 Pursuant to the agreement, M&E will have the Raritan Valley line now owned by NJ Transit and option to extend the 10-year period for two over which exclusive freight rights were granted to Surety Bond Branch at (202) 874–7116. additional 5-year periods. Conrail by agreement effective on October 1, 1984. SUPPLEMENTARY INFORMATION: Notice is 3 On June 13, 2002, Conrail filed comments in Conrail reserves the right to make comments at a hereby given that the Certificate of this proceeding. Conrail states that no interchange later date once M&E is ready to activate rail service and/or operating arrangements have been made and in the event that reasonable interchange and/ Authority issued by the Treasury to the between Conrail, M&E, CSXT, and NS in or operating arrangements cannot be reached above named Company, under the conjunction with M&E’s proposal to operate the between Conrail and M&E. United States Code, Title 31, Sections
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9304–9308, to qualify as an acceptable addition, in no event, should bonds that Questions concerning this notice may surety on Federal bonds is terminated are continuous in nature be renewed. be directed to the U.S. Department of effective today. The Circular may be viewed and the Treasury, Financial Management The Company was last listed as an downloaded through the Internet at Service, Financial Accounting and acceptable surety on Federal bonds at 66 http://www.fms.treas.gov/c570/ Service Division, Surety Bond Branch, 3700 East-West Highway, Room 6F07, FR 35059, July 2, 2001. index.html. A hard copy may be Hyattsville, MD 20782. With respect to any bonds, including purchased from the Government continuous bonds, currently in force Printing Office (GPO), Subscription Dated: June 24, 2002. with above listed Company, bond- Service, Washington, DC, telephone Judith R. Tillman, approving officers should secure new (202) 512–1800. When ordering the Assistant Commissioner, Financial bonds with acceptable sureties in those Circular from GPO, use the following Operations, Financial Management Service. instances where a significant amount of stock number: 769–004–04067–1. [FR Doc. 02–16790 Filed 7–3–02; 8:45 am] liability remains outstanding. In BILLING CODE 4810–35–M
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Corrections Federal Register Vol. 67, No. 129
Friday, July 5, 2002
This section of the FEDERAL REGISTER June 25, 2002, make the following GENERAL SERVICES contains editorial corrections of previously corrections: ADMINISTRATION published Presidential, Rule, Proposed Rule, 1. On page 42709, in the third and Notice documents. These corrections are Submission for Public Comments: column, under SUPPLEMENTARY prepared by the Office of the Federal General Services Administration (GSA) Register. Agency prepared corrections are INFORMATION: in the ninth line ‘‘COP’’ issued as signed documents and appear in should read ‘‘CPO’’. Household Goods Tender of Service the appropriate document categories (HTOS); Conversion of Flat Industrial elsewhere in the issue. 2. On the same page, in the same Funding Fee (IFF) to a Percentage IFF column, under SUPPLEMENTARY INFORMATION: in the second paragraph, Correction in the fourth line, ‘‘comment’’ should COMMODITY FUTURES TRADING read ‘‘document’’. In notice document 02–15736 COMMISSION beginning on page 42259, in the issue of 3. On the same page, in the same Friday, June 21, 2002 make the 17 CFR Part 4 column, under SUPPLEMENTARY following corrections: INFORMATION: in the third paragraph, in RIN 3038–AB60 the first line, ‘‘commission’’ should read On page 42262, the table should read as set forth below: Profile Documents for Commodity ‘‘Commission’’. Pools; Correction [FR Doc. C2–15994 Filed 7–3–02; 8:45 am] Examples: Correction BILLING CODE 1505–01–D (1) Domestic: In rule document 02–15994 beginning on page 42709 in the issue of Tuesday,
A B C D E F G H I J K L
S GSAA GD HHG RXPG8TY43 Q794912349XXXXX 19990612 S12345XX V 19990105 19990312 007
M N O P Q R S T U T U
MO00 64131 OK00 71222 10030 0400 056 12500 05500 SMITH-BATTSONXX 103777444
* * * * * Wednesday, June 19, 2002, make the DEPARTMENT OF HEALTH AND [FR Doc. C2–15736 Filed 7–3–02; 8:45 am] following corrections: HUMAN SERVICES 1. On page 41644, in the second BILLING CODE 1505–01–D Food and Drug Administration column, in the first paragraph, in the eight and tenth lines from the bottom, 21 CFR Part 558 DEPARTMENT OF HEALTH AND ‘‘802’’ should read ‘‘802(c)’’. HUMAN SERVICES 2. On page 41645, in the first column, New Animal Drugs for Use in Animal Food and Drug Administration in the last paragraph, in the first line, Feeds; Lincomycin ‘‘§312.110 ’’ should read Correction 21 CFR Part 312 ‘‘§312.110(c)’’. In rule document 02–13164 beginning 3. On page 41646, in the first column, [Docket No. 00N–1663] on page 36512 in the issue of Friday, in the last paragraph, in the third, sixth, May 24, 2002, make the following and 15th lines ‘‘802’’ should read RIN 0910–AA61 correction: ‘‘802(c)’’. On page 34514, in the first column, Investigational New Drugs: Export 4. On the same page, in the second correct the signature to read as follows: Requirements for Unapproved New column, in the first complete paragraph, Andrew J. Beaulieu, Drug Products in the 12th line, ‘‘802’’ should read ‘‘802(c)’’. Acting Director, Office of New Animal Drug Correction Evaluation, Center for Veterinary Medicine. [FR Doc. C2–15358 Filed 7–3–02; 8:45 am] In proposed rule document 02–15358 [FR Doc. C2–13164 Filed 7–3–02; 8:45 am] BILLING CODE 1505–01–D beginning on page 14642 in the issue of BILLING CODE 1505–01–D
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Part II
Department of the Interior Fish and Wildlife
50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule To List the Southwestern Washington/ Columbia River Distinct Population Segment of the Coastal Cutthroat Trout as Threatened; Proposed Rule
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DEPARTMENT OF THE INTERIOR Trotter 1997) and inland from the Coast intermittent, especially during the Range of Alaska to roughly the crest of summer (Johnson et al. 1999). Fish and Wildlife Service the Cascades of Washington and Oregon Coastal cutthroat trout differ in (Trotter 1997). The southwestern appearance from other subspecies by the 50 CFR Part 17 Washington/Columbia River DPS numerous small to medium irregularly- shaped spots evenly covering virtually RIN 1018–AF45 proposed for listing as threatened includes the Columbia River and its the entire sides of the body, often Endangered and Threatened Wildlife tributaries from the mouth to the extending to the ventral surface and and Plants; Withdrawal of Proposed Klickitat River on the Washington side anal fin (Behnke 1992). Skin color on Rule To List the Southwestern of the river and Fifteenmile Creek on the sea-run fish is often silvery, and may Washington/Columbia River Distinct Oregon side; the Willamette River and mask body spots, while freshwater Population Segment of the Coastal its tributaries from its confluence with residents are darker with a copper or Cutthroat Trout as Threatened the Columbia upstream to Willamette brassy sheen. Falls; Willapa Bay and its tributaries; Relatively little is known about the AGENCY: Fish and Wildlife Service, and Grays Harbor and its tributaries. specific life history and habitat requirements of coastal cutthroat trout. Interior. The DPS inhabits portions of five Coastal cutthroat trout spend more time ACTION: Proposed rule; withdrawal. Ecoregions, the Coast Range, Puget in the freshwater environment and make Lowland, Cascades, Willamette Valley, SUMMARY: We, the U.S. Fish and more extensive use of this habitat, and Eastern Cascades. Most of the DPS Wildlife Service (Service), withdraw the particularly small streams, than do most occurs in the Coast Range, Puget proposed rule, published in the Federal other Pacific salmonids (Johnson et al. Lowland, and Cascades Ecoregions. The Register on April 5, 1999, to list the 1999). The life history of coastal Coast Range Ecoregion has a maritime southwestern Washington/Columbia cutthroat trout may be one of the most climate, characterized by medium to River Distinct Population Segment complex of any Pacific salmonid. high rainfall averaging 200 to 240 (DPS) of coastal cutthroat trout as Coastal cutthroat trout exhibit a variety centimeters (cm) (80 to 90 inches (in) threatened. The DPS includes all coastal of life history strategies across their per year, which peaks in the winter cutthroat trout in waters draining into range (Northcote 1997, Johnson et al. months, with very little precipitation in Grays Harbor, Willapa Bay, and the 1999) that include three basic July or August. Random events, such as Columbia River upstream to the variations: Resident or primarily non- strong storms with heavy rains can have Klickitat River in Washington and to migratory; freshwater migrants; and damaging effects, especially on a Fifteen Mile Creek in Oregon, excluding marine migrants. Residents may stay disturbed landscape. Floods and the Willamette River above Willamette within the same stream segment their landslides triggered by these events can Falls. The coastal cutthroat trout entire life. Freshwater migrants may significantly affect aquatic resources inhabits streams, lakes, rivers, estuaries, make migrations from small tributaries throughout the stream system. The and near-shore ocean habitats to larger tributaries or rivers, or may Puget Lowland Ecoregion experiences throughout the range of the DPS. migrate from tributary streams to lakes reduced rainfall (50 to 120 cm (20 to 47 The change in forest management or reservoirs. Marine migrations in)), with peak flows from December to regulation, the latest information (anadromy) are generally thought to be June. The area tends to have indicating relatively healthy-sized total limited to near shore marine areas; groundwater resources from bordering populations in a large portion of the individuals may not venture out of the mountain ranges that help sustain river DPS, and our improved understanding estuary in some cases (Trotter 1997). flows during droughts. The Cascades of the ability of freshwater forms to There are numerous exceptions to these Ecoregion includes headwater produce anadromous progeny, lead us generalized behaviors and we lack tributaries of many coastal cutthroat to conclude that this DPS does not meet observations of definitive genetic streams. Precipitation can average 280 the definition of a threatened species (in relationships between individual or cm (110 in) per year, much of it in the danger of becoming endangered in the population migratory strategies (Behnke form of heavy snowfall. There is little foreseeable future) at this time. 1997). In areas above long-standing storage capacity for long-term barriers, coastal cutthroat trout are ADDRESSES: The complete file for this groundwater except where porous rock limited to resident or fresh-water withdrawal is available for inspection, substrate exists. In these porous areas, migratory life history strategies. In areas by appointment, during normal business streams receive 75 to 95 percent of their accessible to the ocean, all three life hours at the Oregon Fish and Wildlife average discharge as groundwater and history strategies (resident, freshwater Office, 2600 SE 98th Avenue, Suite 100, are able to maintain flows during dry migratory, and anadromous) are likely Portland, OR 97266. periods. Surface water flow originating to be expressed in the same area. FOR FURTHER INFORMATION CONTACT: in the Cascade Range influences river Coastal cutthroat trout appear to Kemper McMaster, State Supervisor, flows throughout this region. A smaller exhibit very flexible life history Oregon Fish and Wildlife Office (see portion of the DPS occurs in the strategies. The extent to which ADDRESSES) (telephone 503/231–6179; Willamette Valley Ecoregion, which lies individuals expressing these various facsimile 503/231–6195). in the rainshadow of the Coast Ranges strategies are isolated from other life SUPPLEMENTARY INFORMATION: and typically experiences rainfall of 120 history forms is largely unknown, cm (47 in), with peak flows in December though there is growing evidence that Background and January. A small portion of the DPS individuals may express multiple life Coastal cutthroat trout (Oncorhynchus occurs in the Eastern Cascades Slopes history behaviors in their life time clarki clarki), one of 10 formally and Foothills Ecoregion, which is (Johnson et al. 1999). For convenience described subspecies of cutthroat trout marked by a transition between the high we refer to individuals that migrate to (Behnke 1992), are distributed along the rainfall areas of the Cascades Ecoregion marine waters as anadromous or Pacific Coast of North America from and the drier regions to the east. This anadromous life form. In doing so, we Prince William Sound in Alaska to the Ecoregion receives 30 to 60 cm (10 to 20 do not intend to imply that they Eel River in California (Behnke 1992, in) of precipitation. Streamflow is often represent a separate population from
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freshwater forms. We are treating all morphological characteristics, including juveniles may enter the estuary and forms as part of a single population in their large heads and narrow caudal remain there over the summer without this analysis. (tail) regions (Bisson et al. 1988, smolting or migrating to the open ocean. As a result of their wide distribution Hawkins and Quinn 1996). In laboratory Seaward migration of Columbia River and variable life history behavior, tests of two different hatchery stocks of smolts may occur to more protected coastal cutthroat trout are exposed to a coastal cutthroat trout, Hawkins and areas at an earlier age and smaller size wide range of water temperatures. Quinn (1996) found critical swimming than migration to more exposed areas Several studies concluded that cutthroat speeds were between 5.58 to 6.69 body such as the outer Washington coast. trout, like other salmonids, were not lengths per second, whereas steelhead Columbia River smolts generally make typically found in water temperatures (Oncorhynchus mykiss) had critical their first migration at age two, at a higher than 22 degrees Celsius (C) (72 velocities of 7.69 body lengths per mean size of about 160 mm (6 in) degrees Fahrenheit (F)) although they second. In field studies, two-to four-year (Johnson et al. 1999). could tolerate temperatures as high as old coastal cutthroat trout were found in Upstream movement of juveniles 26 to 28 degrees C (79 to 82 degrees F) streams with velocities of 0.14 to 0.20 appears to begin with the onset of for short periods. Optimum meters per second (0.46 to 0.66 feet per winter freshets (overflows) during temperatures for coastal cutthroat trout second) (Hanson 1977). Coastal November and continues through the spawning range from 6.1 to 17.2 degrees cutthroat trout juveniles were most spring, frequently peaking during late C (43 to 63 degrees F), and for egg often in streams where water velocities winter and early spring. Many of these incubation from 4.4 to 12.7 degrees C were between 0.25 and 0.50 meters per yearling fish may average less than 200 (40 to 55 degrees F) (Bell 1986). The second (0.82 to 1.6 feet per second) mm (8 in) in length and can be found preferred temperature range of adult (Pauley et al. 1989). in streams that run through ponds or coastal cutthroat is between 9 and 12 The timing of fish returns to estuary sloughs (Hartman and Gill 1968, Garrett degrees C (48 and 54 degrees F) (Bell and freshwater habitat varies 1998). In winter, coastal cutthroat trout 1986). Giger (1972) reported that considerably across the range and move to pool areas with dense cover temperature was believed to be the most within river basins (Trotter 1997, such as near log jams or overhanging influential characteristic in the Behnke 1992). For example, return banks (Bustard and Narver 1975, Waters migration and distribution of coastal migrations of anadromous coastal 1993). cutthroat in estuaries. Giger further cutthroat trout in the Columbia River Coastal cutthroat trout that enter states that high upper estuary system usually begin as early as late nearshore marine waters reportedly temperatures (23.9 to 26.7 degrees C (75 June and continue through October, move moderate distances along the to 80 degrees F)) probably prevent with peaks in late September and shoreline. Individual marked fish have movement to cooler tributaries until October. Anadromous coastal cutthroat been reported to move 72 to 290 later in the fall. trout spawning typically starts in kilometers (km) (45 to 180 miles (mi)) Coastal cutthroat trout spawn in a December and continues through June, off the Oregon Coast (Pearcy 1997). Sea- variety of gravel sizes from 0.6 to 30 cm with peak spawning in February. (0.2 to 12 in) (Hooper 1973, Hanson Coastal cutthroat trout are repeat run cutthroat trout along the Oregon 1977). Gravels free from fine sediment spawners. Some individuals have been coast may swim or be transported with support higher egg to fry survival for documented to spawn each year for at the prevailing currents long distances salmonids (Irving and Bjornn 1984, least five years (Giger 1972), others may during the summer. It is unclear how far Weaver and Fraley 1993). Anadromous not spawn every year, and some do not offshore coastal cutthroat trout migrate. coastal cutthroat trout spawn and return to seawater after spawning, Cutthroat trout have been routinely complete early rearing in headwater remaining in fresh water for at least a caught up to 6 km (4 mi) off the mouth stream sections, often above those used year. Eggs begin to hatch within six to of the Nestucca River (Sumner 1953, by other anadromous salmonids (Glova seven weeks of spawning, depending on 1972). Coastal cutthroat trout have also and Mason 1977, Michael 1983), and temperature; fry emerge between March been captured between 10 and 46 km (6 then migrate downstream eventually and June, with peak emergence in mid- to 28 mi) offshore of the Columbia entering the estuary and near ocean April. At emergence, fry appear to seek River, though it is unclear whether they environment to complete growth and refugia near channel margins and were carried by the freshwater plume of maturation. By spawning higher in the backwater habitats, although they may the Columbia River or moved offshore watersheds than other salmonids, use fast water habitats (riffles and in search of prey. cutthroat trout may avoid competition glides) when exposed to competitive Resident (non-migratory) fish appear for suitable spawning sites, reduce the interactions with other native salmonids to mature earlier (two to three years) likelihood of hybridization, and reduce (Johnson et al. 1999). and are shorter-lived than the migratory competitive interactions between Coastal cutthroat trout juveniles form (Trotter 2000). Smoltification has juvenile coastal cutthroat trout and generally remain in upper tributaries been reported to occur from one to six other salmonids. Salmonids need water until they are one year of age, at which years of age, most commonly at ages two free from high levels of suspended time they may begin moving more through four (Trotter 1997), and at sizes sediment to feed and migrate. When extensively throughout the river system. of from 175 to 225 millimeters (mm) (7 very high sediment loads are present Juvenile salmonids on marine-directed to 9 in) (Behnke 1992). Sexual maturity (greater than 4,000 parts per million migrations undergo physiological rarely occurs before age four in (ppm)) salmonids cease movement or changes to adapt to salt water called anadromous coastal cutthroat trout migration (Bjornn and Reiser 1991). smoltification. These individuals are (Johnson et al. 1999). Growth rates Cutthroat trout are known to stop called smolts. Downstream movement increase during the initial period of feeding and move to cover when may begin with the first spring rains, ocean residence, but decrease following turbidity is above 35 ppm (Pauley et al. usually in mid-April with peak the first spawning due to energy 1989). movement in mid-May. Time of initial expenditures from migration and Coastal cutthroat trout are poorer seawater entry generally begins as early spawning (Giger 1972). Behnke (1992) swimmers than other anadromous as March, peaks in mid-May, and is reports the maximum age of sea-run salmonids, probably due to essentially over by mid-June. Some cutthroat to be approximately 10 years.
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The diverse life history strategies cutthroat trout, whether from above cutthroat trout captured at Bingham shown by coastal cutthroat trout are not long-standing natural barriers or human- Creek from 1983 to 2001 ranged from a well understood, but are thought to created barriers, likely varies according low of zero to a high of 35 with a mean represent unique adaptations to local to river basin characteristics, the length of eight. This trap measures all fish environments and the subspecies’ of time barriers have been in place, and returning to an 8,250 hectare (ha) response to environmental variability the genetic composition of coastal (20,386 acre (ac)) watershed and likely and unpredictability. The significance cutthroat trout within each basin catches all coastal cutthroat trout of the various life history strategies, the (Johnson et al. 1999). In addition, the migrating upstream. On the West Fork extent to which each strategy is significance and long-term success of Hoquiam River, the number of migrating controlled by genetic versus freshwater cutthroat trout contributing coastal cutthroat trout (wild and environmental factors, and the extent of to the saltwater migrant cutthroat trout hatchery) captured from 1986 to 2000 isolation among individuals expressing may be largely dependent upon the ranged from 17 to 122 with a mean of these various strategies is largely ability of downstream habitat conditions 51. No hatchery cutthroat trout have unknown, though there is growing and near-shore environments to support been detected at this facility since 1995, evidence that individuals may express the persistence of this life history and the mean number of fish since 1995 multiple life history behaviors over time strategy. is 55. This trap measures almost all (Johnson et al. 1999). The few existing The effects of interspecific adult coastal cutthroat trout returning to studies show that, although both allele competition between coastal cutthroat a 2,166 ha (5,352 ac) watershed. frequencies and morphology may differ trout and other salmonids, particularly Catch data for coastal cutthroat trout between populations above and below coho salmon (Oncorhynchus kisutch), were recorded incidental to creel barriers, the portions of the population rainbow trout (O. mykiss), and steelhead surveys for salmon and steelhead in the displaying different life history (the anadromous form of rainbow trout) Columbia River, though no data were strategies are generally more closely are well documented. In general, collected on angler effort for coastal related within a drainage than are steelhead and coho are more commonly cutthroat trout. These data were populations from different drainages found in the larger river reaches and collected from four points in (Behnke 1997, Johnson et al. 1999). coastal cutthroat trout are more Washington. No creel census data were These results indicate that migratory abundant in the headwater tributaries, received from Oregon. The number of and non-migratory portions of the reducing the potential for competition coastal cutthroat trout recorded in the population of cutthroat trout represent a (Hartman and Gill 1968). However, creel surveys for the lower Columbia single evolutionary lineage in which the when they do overlap, steelhead tend to River is likely to be strongly influenced various life history characteristics have dominate coastal cutthroat trout in the by the change in cutthroat trout fishing arisen repeatedly in different geographic riffles and juvenile coho dominate regulations (WDFW 2001c). During the regions (Johnson et al. 1999). cutthroat in pools and glides. As a period when creel census data were Many coastal cutthroat populations result, coastal cutthroat trout are often collected, the general fishing regulation are isolated above natural barriers. displaced to less desirable habitats in limits for coastal cutthroat trout in Recent studies have shown low levels of the presence of other native salmonids Washington decreased from 12 to 8 trout downstream migration over these (Griffith 1988). Coastal cutthroat trout per angler in 1983, to 2 trout in the natural barriers indicating that these evolved with these competitive marine environment and 8 trout in isolated populations likely are interactions and competition with freshwater in 1986, and finally to 2 trout contributing demographically and native salmonids is not anticipated to in 1992. Minimum size limits also genetically to populations below them adversely affect this DPS of coastal became more restrictive during this (Griswold 1996, Johnson et al. 1999). cutthroat trout. period. In addition, catch and release Furthermore, populations above natural angling for wild cutthroat was Population Size barriers may represent genetic resources implemented in some streams within shared by populations below these Little data exist to determine the the DPS’s range starting in 1989 and barriers and therefore may constitute a actual population size of cutthroat trout expanded to all lower Columbia River significant component of diversity for in the DPS. Most counts were conducted streams below Portland and Vancouver the population (Johnson et al. 1999). only in the area accessible to in 1992 (Leider 1997). The lack of There is increasing evidence that anadromous salmonids; include only angling effort data make it impossible to coastal cutthroat trout isolated for long coastal cutthroat trout moving up or determine if the decline in creel census periods of time above impassable dams down stream (mostly migrants); and numbers are the result of low retain the capacity to produce marine were collected incidental to studies for populations or low angling effort for migrants. The Washington Department other salmonid species using traps or coastal cutthroat trout. Creel census of Fish and Wildlife (WDFW) (2001) collection facilities designed for salmon personnel have noted reduced angler reported that between 476 and 1,756 and steelhead. We lack information on effort in traditional cutthroat trout smolts were produced from the the efficiency of these systems in angling areas and fewer anglers using freshwater form of coastal cutthroat capturing coastal cutthroat trout, traditional sea-run cutthroat trout gear trout above Cowlitz Falls Dam on the therefore, data from most traps cannot (WDFW 2001c). Given the lack of angler Cowlitz River in 1997 and 1998. Tagging be used to determine or estimate actual effort with which to standardize the and otolith microchemistry analysis of population size for coastal cutthroat counts, we can no longer conclude that one returning adult showed the tagged trout. We have updated the population the creel census data indicate an fish, originating from above the dam, analyses using the latest data received extremely low number of anadromous migrated to salt water and returned. The from WDFW, as well as evaluating the cutthroat trout in the DPS as described report suggested that the resident accuracy of data in depicting actual in the proposed rule (64 FR 16397, April portion of the population of cutthroat coastal cutthroat trout population levels. 5, 1999). trout is making contributions to the Two sets of data from the Grays Trap data are similarly difficult to anadromous portion of the population. Harbor tributaries provide some interpret. The Kalama River trap has The significance of marine migrant population information (WDFW 2001c). detected low numbers of coastal production from the freshwater coastal The number of migrating adult coastal cutthroat trout in all but four years since
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1982. This trap is located above the reliable indicators of population size based on coastal cutthroat trout caught natural, historic anadromous cutthroat than adult counts, they do provide some at a single location in Spring Creek. trout zone, in an area blocked to information on the level of production. Densities were calculated for all sites, upstream passage by a falls until a Numbers of total juveniles produced are whether or not cutthroat were located. ladder was built in 1936. In addition, available from 21 traps in the Grays The Oregon Department of Fish and the trap is designed to catch and hold Harbor system, based on either total Wildlife (ODFW) provided information adult salmon, having a 3.8 cm (1.5 in) counts or estimates derived using trap on densities of coastal cutthroat over 85 bar spacing. According to WDFW efficiency data provided by the WDFW mm in size in the Hood River above the (2001), most adult sea-run cutthroat (2001). Total numbers of juveniles area accessible to anadromous trout would pass through this trap produced is likely affected by the salmonids (ODFW 1998). While undetected because of the wide bar amount of habitat available in the cutthroat trout were not detected in all spacing. Therefore, because the trap is system, which varies widely. We streams sampled, cutthroat trout above a previous natural migration attempted to correct for this by densities where present were relatively barrier and has a large bar spacing, the calculating the number of downstream high, ranging from 0.003 to 0.283 fish trap likely significantly underestimates migrants per square kilometer (km\2\) per m\2\ (0.03 to 3.0 per ft\2\). The the actual number of adult cutthroat of watershed above the trap. The watersheds above Bonneville Dam are trout returning to this drainage, number of downstream migrants per ecologically very different from the resulting in data that are unreliable for km\2\ of watershed area in the Grays remainder of the subspecies’ range. determining population level. Harbor tributaries varied widely from These include the only watersheds The number of adult coastal cutthroat 0.04 to 10.4 per km\2\ (0.1 to 26.8 per where this subspecies is found east of trout trapped at the North Fork Toutle square mi (mi\2\)), with some the Cascade Mountain Divide. This area River rose from 1988 until 1995 and has watersheds producing large numbers of experiences a very different hydrologic declined since (WDFW 2001c). The downstream migrants. The total and climatic environment that may maximum number trapped reached 153 estimated number of juveniles produced influence the densities of cutthroat. in 1995. This increase likely tracks the from Columbia River tributaries below The National Marine Fisheries Service recovery of the population following the Bonneville Dam were available from (NMFS) Status Review (Johnson et al. eruption of Mount St. Helens in 1980 eight traps. The number of downstream 1999) also cited concern over ‘‘*** and the resulting massive mud and migrants per km\2\ of watershed area two near extinctions of anadromous debris flows in the Toutle River. The varied from 0.5 to 38.4 per km\2\ (1.4 runs in the Hood and Sandy Rivers’’ (64 recent decline in numbers of coastal to 99.4 per mi\2\), with most FR 16407). The Sandy River basin cutthroat trout counted is likely a result watersheds producing more than 6 occupies 4 percent of the DPS’s range. of the continued failure of the Fish outmigrants per km\2\ (15 per mi2). Collection Facility to handle the high Mongillo and Hallock (2001) Data on adult cutthroat trout numbers sediment loads still common in this conducted extensive surveys of 156 are derived from a trap that is located system. The trap has been closed during locations within the Washington portion on a tributary approximately 34 km (21 fall freshets in recent years due to high of the DPS’s range for abundance of mi) from the mouth of the Sandy River sediment loads, coinciding with the coastal cutthroat trout. Data were and 3 km (2 mi) up Cedar Creek from upstream migration of anadromous collected by single-pass electrofishing, a its confluence with the Sandy River. cutthroat (WDFW 2001c). A third trap method which likely underestimates the This trap historically captured two to was added at the Grist Mill Fish Ladder actual abundance, and included areas three dozen anadromous coastal on Cedar Creek in 1998. Because adult used by resident and anadromous cutthroat trout, though none have been cutthroat trout may bypass the ladder, coastal cutthroat trout. Additional data captured in recent years (Johnson et al. this count is an underestimate of actual were presented by the WDFW (2001) for 1999). Trap data from this off-channel population size. The numbers of fish surveys conducted by Weyerhaeuser location may not accurately represent captured at the Grist Mill Fish Ladder Company in 1994 and 1995 and from the number of anadromous cutthroat in ranged from 57 to 120. one study in the Humptulips Basin in the Sandy River. As a substantial Of the nine adult traps with the 1970s. The relative density for all portion of the historic anadromous- population data in southwest locations below Bonneville Dam ranged accessible habitat in the Sandy River Washington and the Columbia River from 0.009 to 0.222 fish per square has been isolated by dams and other tributaries below Bonneville Dam, four meter (m2) (0.09 to 2.4 per ft2). These barriers, the number of anadromous have total annual counts below 10 values were compared to population coastal cutthroat trout is likely coastal cutthroat trout in recent years. In densities from the 1970s in the Olympic depressed from historic levels. at least one case (Kalama River trap), Peninsula and Puget Sound (0.009 to However, it is difficult to extrapolate this may well be due to the inefficiency 0.384 fish per m2 (0.09 to 4.1 per ft2)), data from one trap located on a tributary of the trap in collecting adult coastal which were considered healthy (in to the main river to a meaningful cutthroat trout as described above. Five terms of abundance) during that period estimate of the anadromous component of these traps have counts (averaged for (WDFW 2001c) and were not considered of the population for the basin as a the last five years) of 50 to 1,400 adult likely to be in danger of extinction in whole. Resident cutthroat trout are cutthroat trout per year. These data the foreseeable future by the Status considered well-distributed in the indicate higher numbers than Review Team (Johnson et al. 1999). Sandy River basin, occurring above and previously described and we no longer Densities recorded in southwest below Marmot and Little Sandy Dams conclude that the annual number of Washington by Mongillo and Hallock (PGE 2000). Much of the upper Sandy adults returning to these traps in the (2001) were not significantly different River Basin is under Federal land DPS are consistently below 10 fish as from densities recorded in the 1970s management which minimizes future described in the proposed rule (64 FR from the Olympic Peninsula and Puget threats of habitat degradation that 16407). Sound. would cause population declines (see Many juvenile fish traps are Densities measured in Washington Federal Land Management Section monitored in tributaries of Grays above Bonneville Dam were lower below). We conclude that the Harbor. While juvenile counts are less (0.0003 fish per m\2\ (0.003 per ft\2\)), anadromous portion of the population
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of coastal cutthroat trout in the Sandy cutthroat trout in lower Columbia River Evaluating the reliability of the trend River has declined from historic levels, streams, indicated by low incidental information is very important in though the limited data do not allow us catch of coastal cutthroat trout in determining the appropriate use of the to determine if they are nearly extinct in salmon and steelhead recreational information. The reliability of analyses this small portion of the DPS, as fisheries, and by low trap counts in a in truly depicting any population trend described in the proposed rule. The number of tributaries throughout the could be affected by the collection resident portion of the population region and that numbers of adults method, length of data set, specific remains well distributed in the Sandy returning to traps in the lower Columbia concerns for individual collection sites, River. River tributaries were consistently and statistical reliability of the test Powerdale Dam, completed in 1922, below 10 fish in most streams over each results. In interpreting the results of the lies 7.2 km (4.5 mi) up the Hood River of the past 6 years (64 FR 16407). Based analyses, less weight was given to from its confluence with the Columbia on the information described in this results with low statistical reliability, River. The area between the dam and section, we conclude that, while the short data sets, and where the agency the powerhouse (river mile (rmi) 1.5) anadromous portion of the population managing the trap/collection indicated was historically dewatered at times, of coastal cutthroat trout is likely at specific problems that could bias or though now has minimum required lower-than-historic levels, there is little affect trend information. flows. The dam likely has affected the information available to determine the Most information was collected in number of anadromous cutthroat trout actual size of runs or to indicate that areas accessible to anadromous using the Hood River, which comprises populations, or even the anadromous salmonids, incidental to studies for two percent of the DPS’s range. Hood portion alone, are at extremely low other salmonid species, using traps or River lies upriver of Bonneville Pool levels in most areas of the DPS. The collection facilities designed for other and Dam, which may further impede anadromous portion of the population species. Information on the efficiency of anadromous cutthroat trout movements. may be at very low numbers in Hood these systems in detecting or collecting Hood River lies near the eastern edge of and Sandy Rivers (6 percent of the cutthroat trout is lacking. Therefore, the range of coastal cutthroat trout. No DPS’s range), though the location of the these values do not represent the trends information is available as to trap on the Sandy River makes it of all portions of the DPS. We carefully anadromous cutthroat trout use and difficult to support the conclusion that explored information on the individual numbers prior to construction of anadromous coastal cutthroat trout are traps or other information to ensure that Powerdale and Bonneville Dams, and near extinction in this river as described potential biases that could affect use of only limited information exists on in the proposed rule (64 FR 16407). these data as indices of population trend numbers in even recent times. Trap data Resident/freshwater forms remain well were minimized. Trends from short- from 1962 to 1971 shows variable, but distributed and at reasonable densities term data sets are particularly suspect. significant numbers of adult cutthroat in these same river systems. Coastal There is naturally high variation in all trout trapped (mean 61, range 8 to 177) cutthroat trout in the southwest adult and juvenile counts, with some followed by a gap in information until Washington portion of the DPS (75 apparent short-term cyclicity. The trend 1992. Very few adult fish have been percent of the land base) remain at in a short data set is therefore more trapped at the facility since 1992, with comparable densities to other areas likely indicative of the particular time no fish captured in 6 of 10 years. considered to have healthy-sized span of the data collection, and position However, in 2001, 11 adult coastal populations. Therefore, we conclude in the ‘‘cycle,’’ than an indication of cutthroat trout returned to Powerdale that the population of coastal cutthroat true long-term trend in the population. Dam (Connolly et al. 2002). From 1994 trout as a whole in the DPS is not Only a few long-term data sets were to 1999, downstream smolt traps in the extremely low in numbers or at levels available. Hood River system continued to trap that would lead to increased risk of Data sets were analyzed for the migrants, though at low numbers (mean extinction due to small population size percent annual decline using a of 24 fish). Given the location and long in the foreseeable future. regression of the natural log of the trap history of Powerdale Dam, it is not counts. Where data sets were longer surprising that the anadromous portion Population Trends Across the DPS than 11 years, analyses were conducted of the population in Hood River is The proposed rule stated that for entire data set (long term) and for the depressed. Resident forms within this ‘‘[t]rends in anadromous adults and last 7 to 11 years (short term). These system are in better condition, with outmigrating smolts in the southwestern same methods were used by NMFS in relatively high densities (0.003 to 0.238 Washington portion of this [DPS] are all the Status Review (Johnson et al. 1999). fish per m\2\ (0.03 to 2.56 fish per declining’’ (64 FR 16407) and that We used statistical analyses to ft\2\) for fish greater than 85 mm ‘‘[r]eturns of both naturally and determine the reliability of the observed (approximately 3 in) in length (ODFW hatchery produced anadromous coastal trend. The accuracy of the observed 1998). We conclude that the cutthroat trout in almost all lower trend is evaluated by the p value. A low anadromous portion the population of Columbia River streams have declined p value indicates that the trend we coastal cutthroat trout in the Hood River markedly over the last 10 to 15 years,’’ calculated is likely to be an accurate has declined severely from historic with the only increase in the Toutle representation of the true trend in the levels in this small portion of the DPS. River (64 FR 16407). population. For example, a p value of The resident portion of the population During the public comment period we 0.10 indicates a 90 percent probability remains well distributed at relatively received new data from several of the that the observed trend is accurate, a p high densities in the Hood River. fish traps operating in the DPS’s range. value of 0.5 indicates only a 50 percent Occasional upstream migrants continue Based on analyses of these new data, probability that the observed trend is to be trapped in some years, and in including further information on accurate. With regression statistics, we 2001, a total of 11 upstream migrants individual traps from WDFW (2001), we also report the r\2\ value which were captured (Connolly et al. 2002). evaluated the trend in the population of describes how well the straight trend The proposed rule stated that NMFS coastal cutthroat trout in the DPS and line fits the observed population data. was concerned about the extremely low the reliability of the trend information Low r\2\ values indicate that the population size of anadromous coastal from each individual data set. straight trend line does not fit the data
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well and lowers our confidence that the within the Grays Harbor portion of the The Kalama River trap has detected observed trend accurately represents the DPS. Most of the trend analyses from low numbers of coastal cutthroat trout true trend. Highly variable data often these data sets are not reliable due to in all but four years since 1982. The result in a low r\2\ value. short time series or poor statistical Kalama River basin occupies 1.5 percent The proposed rule stated that results. Only the Stevens Creek data of the DPS’s range. This trap is located ‘‘[t]rends in anadromous adults and were considered relatively reliable (p above the traditional anadromous outmigrating smolts in the southwestern less than 0.001, r2 = 0.67). This cutthroat trout zone, in an area blocked Washington portion of this [DPS] are all population was declining at a rate of 15 to upstream passage until a ladder was declining’’ (64 FR 16407) and that percent per year as of 1994 (Johnson et built at the falls in 1936. The trap is ‘‘[r]eturns of both naturally and al. 1999) and there were no additional designed for adult salmon with a 3.8 cm hatchery produced anadromous coastal data available for this trap. New data (1.5 in) bar spacing. According to cutthroat trout in almost all lower were available from the Chehalis River WDFW, most adult sea-run cutthroat Columbia River streams have declined trap. Hatchery releases in this area have trout would pass through undetected markedly over the last 10 to 15 years’’ declined significantly and no hatchery (WDFW 2001c). While these factors may (64 FR 16407). The latest trend data, as marked coastal cutthroat trout have affect total counts at this location, it is described below, do not support this been recorded at the trap in recent still potentially usable for trend conclusion. years. The number of total coastal analyses. The data indicate a long-term Population Trends in Grays Harbor cutthroat trout caught at the trap declining trend (10 percent annual appears to have declined in recent years decline, p less than 0.001, r2 = 0.62). Trends in the counts of adult coastal (11 percent annual decline, p = 0.18, r2 WDFW (2000) noted that after a sharp cutthroat trout migrants from the Grays = 0.19). However, when only unmarked decline in the mid-1980s, counts at the Harbor portion of the DPS were (i.e., naturally spawned) coastal Kalama facility have been low and analyzed from three available data sets. cutthroat trout were counted, the stable, though our analysis of data since Data used in the Status Review (Johnson number of fish counted appears to have 1987 indicates that the number of et al. 1999) indicated a declining trend increased over the long term (10 percent cutthroat trapped has continued to for the West Fork Hoquiam River (5 2 annual increase, p = 0.18, r = 0.14). decline at a similar rate. percent annual decline, data through Given the moderate p values and poor Creel census data for coastal cutthroat 1995). In the latest analysis there is no r2 values, these data have relatively poor trout from the lower Columbia River reliable indication of a trend, increasing reliability. Therefore, the Chehalis River 2 were collected incidentally to studies of or decreasing (p = 0.44, r = 0.05) in the trap provides no strong evidence of salmon and steelhead fisheries, and no West Fork Hoquiam River. Adult either a long-term positive or negative data were collected on angler effort for migrant counts from Bingham Creek population trend. were not used in the Status Review’s coastal cutthroat trout. Based on the assessment (Johnson et al. 1999). Population Trends in the Columbia latest creel census data, there is an Analysis of data from 1983 through River and Tributaries indication of an 18 percent annual rate 2001 show an increasing long-term Trends in the numbers of migratory of decline over the long term. The trend (7 percent annual increase) that is adult coastal cutthroat trout returning to number of cutthroat trout recorded in considered relatively reliable, though traps in the lower Columbia River the creel surveys for the lower Columbia the straight trend line does not fit the portion of the DPS were analyzed on River, and thus the calculated trend, is data well (p = 0.05, r2 = 0.2). Additional five available data sets discussed below. likely to be strongly influenced by the hook and line data were available from These analyses provide some indication change in cutthroat trout fishing a single individual who kept very of decline in the numbers of adult regulations during this period (WDFW accurate catch records over 15 years anadromous coastal cutthroat trout, 2001c) with a decrease in limits and an (WDFW 2001c). Such data can be biased though there are concerns about the increase in minimum size (see by changes in the individual’s skill and reliability and confidence in the Population Size section), as well as effort over time, however, these data do magnitude of these trends for most of changes in salmon and steelhead generally support the conclusion of an the data sets. These concerns are poor fisheries. The lack of angler effort data increasing trend (4 percent annual statistical reliability, lack of trap make it impossible to determine if the increase, p less than 0.01, r2 = 0.58). efficiency data, and consistency decline in creel census numbers is the WDFW also concluded, based on angler problems that likely bias the results. No result of declining populations or data, that the percentage of repeat data exist specific to trends in the declining effort. Creel census personnel spawners or larger fish in the resident portion of coastal cutthroat have noted reduced angler effort in population has also recently increased, trout population in the DPS. traditional cutthroat trout areas and indicating an improvement in Two of the five data sets were from a fewer anglers using traditional sea-run population condition (WDFW 2001c). limited time period and not considered cutthroat trout gear (WDFW 2001c). The Based on analysis of data from the West reliable indicators of trend. In addition, change in regulations likely changed Fork Hoquiam River, Bingham Creek, the North Fork Toutle River trap was fishing behavior, reducing the angler and the angler data, there is no evidence considered unreliable for determining effort. With reduced effort, we would that the adult portion of the population trend due to recent continued failure of expect a lower catch and therefore the in the Grays Harbor tributaries, which the Fish Collection Facility leading to appearance of a decline. While it is comprises 18 percent of the DPS, is closures coinciding with the upstream likely that there has been some decline declining over the long term as migration of anadromous cutthroat trout in the number of adult anadromous described in the proposed rule (64 FR (WDFW 2001c). Trends for wild fish cutthroat trout, it is impossible to 16407), and there is some indication returns for the Elochoman River trap determine the rate of decline with any that the adult portion of the population were difficult to fully analyze due to a certainty in the absence of data on may be stable or increasing, at least in significant gap in the data. There are angling effort (WDFW 2001c). Given the Bingham Creek. only seven years of data following this lack of angler effort with which to Juvenile (downstream migrant) count gap, ending in 1995 when trapping was standardize the counts, we can no data were available from many locations discontinued. longer conclude that the creel census
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data indicates a specific level of decline (64 FR 16407). Based on the latest population trends indicate that coastal in the anadromous portion of the information, there is no reliable cutthroat trout are likely to be extirpated cutthroat trout DPS as described in the evidence that the adult population in from any significant portion of their proposed rule (64 FR 16397). the Grays Harbor tributaries is declining range in the foreseeable future. The NMFS Status Review also cited over the long term and some indication Life History Diversity concern relative to two near extinctions that the adult population may be stable of anadromous runs in the Hood and or increasing in at least some areas. The proposed rule stated that ‘‘[a] Sandy Rivers (6 percent of the DPS’s There is an indication from a single trap significant risk factor for coastal range) (see Population Size section). that juvenile outmigration may be cutthroat trout in this [DPS] was a There has been a decline in the number declining, though we lack data for the reduction of life-history diversity’’ (64 of anadromous cutthroat caught at the past seven years. Therefore, we no FR 16407), based on serious declines in trap in the Sandy River, though it is longer conclude that trends of the adult anadromous life history forms and near difficult to extrapolate data from one anadromous portion of the population extirpation in at least two rivers on the trap located on a tributary to the main and outmigrating juveniles in the Oregon side of the basin. The proposed river to a meaningful population trend southwest Washington portion of the rule does acknowledge that freshwater in this system. Captures have been very DPS are all declining markedly as forms remained well distributed and in low at Powerdale Dam on the Hood described in the proposed rule (64 FR relative high abundance (64 FR 16407). River (see Population Size section). The 16407). The proposed rule indicated that habitat degradation in stream reaches accessible data were insufficient to conduct any The proposed rule stated that meaningful trend analysis. Given the to anadromous cutthroat trout, and poor ‘‘[r]eturns of both naturally and long history of this dam, it is not ocean and estuarine conditions, likely hatchery produced anadromous coastal surprising that the anadromous portion have combined to severely deplete the cutthroat trout in almost all lower of the population in Hood River is anadromous life history form Columbia River streams have declined severely depressed. The resident portion throughout the lower Columbia River markedly over the last 10 to 15 years,’’ of the population within this system is Basin. Finally, the proposed rule further with the only increase in the Toutle in better condition, with relatively high stated that ‘‘Reduced abundance in River (64 FR 16407). The petition to list densities (ODFW 1998), though no trend anadromous fish will tend to restrict sea-run cutthroat trout (ONRC 1998) data exist for this portion of the connectivity of populations in different stated that ‘‘[i]f angler catch truly population. watersheds, which can increase genetic Data were available for the smolt to mirrors run size, * * * then the latest and demographic risks. * * * The adult return rate at the Cowlitz River surveys suggest a decline of close to 99 significance of this reduction in life- Hatchery. These rates have declined in percent in sea-run cutthroat trout history diversity to the [sic] both the the long-term (19 years) (6 percent numbers from historical levels in the integrity and the likelihood of this decline per year, p = 0.01, r2 = 0.34). In lower Columbia River and its [DPS’s] long-term persistence is a major the short term (11 years), the data do not tributaries.’’ As described above, due to concern to NMFS’’ (64 FR 16407). reliably show an increasing or changes in regulations and the lack of ODFW and WDFW presented decreasing trend (p = 0.46, r2 = 0.06). angler effort data, we conclude that preliminary evidence to the Status The last return rate (1998 juveniles) was angler catch data for the lower Columbia Review team that freshwater cutthroat 4.1 percent, the highest value since River is likely not a true representation trout could produce anadromous 1988. These data are based on hatchery of run size. Data for the lower Columbia migrants, which could mitigate risks to fish and likely underestimate natural River are limited and there are the anadromous portion of the survival rates of cutthroat in this system significant concerns about the reliability population. The proposed rule did note because of the higher levels of survival of the results. There are indications of that the presence of well distributed of wild over hatchery produced declines in the anadromous component freshwater forms in relatively high salmonids (Chilcote in prep). of the adult portion of the population in abundance, coupled with the possibility Data on population trends for the Columbia River, though the rate of that freshwater forms could produce juveniles (downstream migrants) were the decline is uncertain due to concerns anadromous progeny ‘‘* * * could act very limited. Most data sets were short over the reliability of the analyses and to mitigate risk to anadromous forms of and trend could not be determined with potential biases in the data sets. While coastal cutthroat trout,’’ though the any certainty. Trends varied from weak the number of anadromous coastal observation that sea-run coastal increases to weak declines. The Status cutthroat trout have likely declined in cutthroat trout population sizes Review noted a 16 percent decline in the Columbia River, we do not have remained consistently low remained a smolt abundance in the Kalama River. sufficient data to determine a reliable cause for concern (64 FR 16407). This was based on data from 7 years rate of recent decline and, therefore, no Anadromous cutthroat trout, (1978–1984) followed by a gap of 8 longer conclude that returns of particularly in the lower Columbia years and 3 years of additional data anadromous cutthroat trout in almost all River, are the most negatively affected (1992–1994). The gap and short nature lower Columbia River streams have portion of the DPS. The degree to which of the end portion of the data make it ‘‘declined markedly over the last 10 to the reduced numbers of the anadromous difficult to interpret a reliable rate of 15 years’’ as described in the proposed portion of the population of coastal decline. rule (64 FR 16407). There is little cutthroat trout represent a risk to the information on population trends for DPS as a whole depends, in part, on the Summary of Trend Analysis resident or freshwater forms of cutthroat importance of this life history strategy Based on the above information, trout in the DPS, though populations in and the extent to which the expression population trends of the DPS appear the Washington portion of the DPS of life history strategies are genetically more variable than previously thought. appear to remain at levels comparable to versus environmentally controlled. The proposed rule stated that ‘‘[t]rends healthy-sized populations, indicating The anadromous life history strategy in anadromous adults and outmigrating that large-scale, long-term declines have is likely important to the DPS for smolts in the southwestern Washington not occurred at a landscape level. Based genetic mixing in the long-term and for portion of this [DPS] are all declining’’ on these data, we do not find that the potential recolonization after
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catastrophic events. Genetic exchange migration. WDFW has marked coastal rivers). In addition, there is no evidence can be important in evolutionary time cutthroat trout smolts produced by at this time that coastal cutthroat trout scales to maintain diversity within upstream freshwater fish at Cowlitz pursuing the anadromous life history populations, but requires that only a few Falls, which lies above Mayfield Dam. strategy are segregated from the individuals interbreed successfully over Two adults returned from smolts tagged remainder of the population. In fact, time. The Pacific Northwest is subject to in 1997, one of which was sacrificed studies show that individuals above periodic catastrophic events such as and microchemistry results confirmed it barriers and below barriers with access volcanic eruptions and stand had migrated to salt water and returned. to the sea are more closely related replacement fires that can seriously Eight fish from smolts tagged returned within a drainage than are individuals depress, and even extirpate, local in 1998. While this portion of the DPS from different drainages (Behnke 1997, populations. These types of events may contain residualized anadromous Johnson et al. 1999). This further occur on very long time scales and at cutthroat trout trapped behind the dam, supports the conclusion that watershed or sub-basin scales. it has continued to produce downstream anadromous and non-anadromous Anadromous cutthroat represent one migrants for over 40 years (more than 10 individuals are not substantially possible source of individuals for generations). These results are separate subpopulations. Therefore, recolonization, the other being resident consistent with the hypothesis that based on the evidence that freshwater cutthroat trout above or outside the area resident fish in anadromous fish zones and isolated portions of the population of the catastrophic event. The ability of are capable of producing migratory are capable of producing anadromous anadromous cutthroat trout to juveniles (i.e., smolts) and ‘‘sea-run’’ migrants, we now conclude that recolonize is limited by barriers and adults. freshwater and isolated portions of the they cannot provide rescue to The few existing studies show that, coastal cutthroat trout population are populations above large, natural although both allele frequencies and mitigating risks to anadromous forms to barriers. morphology may differ between some degree. The ability for non- The extent to which each life history populations above barriers and anadromous cutthroat trout to produce expression is partitioned or isolated populations below barriers with access anadromous progeny reduces the risk of among and within populations is largely to the sea, these different life history loss of the anadromous life history unknown, though there is growing forms are generally more closely related strategy in the foreseeable future. evidence that individuals may express within a drainage than are populations multiple life history behaviors over time from different drainages (Behnke 1997, Distinct Population Segment (Johnson et al. 1999). Coastal cutthroat Johnson et al. 1999). These results The analysis for this listing trout that were believed to be freshwater indicate that the migratory and non- determination is based on the DPS as forms one year may migrate to the sea migratory portions of the population of described in the April 5, 1999, Federal another year; some individuals may not cutthroat trout represent a single Register proposed rule (64 FR 16397). In make their initial migration to sea until evolutionary lineage in which the that proposed rule, the DPS was defined age six (Sumner 1962, Geiger 1972). various life history characteristics have to include naturally spawned cutthroat Some sea-run cutthroat trout may not arisen repeatedly in different geographic trout below long-standing, naturally- enter saltwater every year after their regions. These relationships for coastal impassable barriers. However, at that initial seaward migration (Tomasson cutthroat trout are similar to those for time we indicated that, prior to the final 1978). other salmonid fishes, particularly listing, we would examine the Both ODFW (1998) and WDFW (2001) sockeye salmon (Oncorhynchus nerka) relationship between hatchery and presented information showing and its non-anadromous form, kokanee. naturally spawned cutthroat trout, and evidence of production of anadromous NMFS (Johnson et al. 1999) cutthroat trout above barriers to assess progeny by freshwater resident cutthroat acknowledged that if freshwater coastal whether any of these populations trout. Studies of brown trout have cutthroat trout can produce smolts, this warrant inclusion in the DPS. In the demonstrated that non-anadromous could mitigate the risks to the proposed rule, we indicated that this adults can produce anadromous anadromous portion of the population, could result in the inclusion of specific offspring, though at lower levels than though at the time they lacked hatchery populations or populations anadromous adults. For other salmonids information on the length of isolation of above barriers as part of the DPS. with multiple life history forms, Jonsson populations above Mayfield Dam to Only one coastal cutthroat trout and Jonsson (1993) suggested that in a fully evaluate this phenomenon. They hatchery remains active in the DPS’s single mating, parents may produce did note that even if smolts were being range, the Cowlitz River Hatchery. We offspring with different migratory produced, the anadromous portion of examined the relationship between this strategies, though this has not been the population remains consistently low hatchery and unmarked fish from the confirmed experimentally for coastal in many areas which is cause for DPS. Genetically, the remaining cutthroat trout (Johnson et al. 1999). concern. Coastal cutthroat trout above hatchery population appears more WDFW (2001) provided additional Mayfield Dam have been isolated for similar to other populations within the information on the production of over 40 years, representing many DPS than to populations from outside downstream migrants by cutthroat trout generations, and continue to produce the DPS (Johnson et al. 1999). Stock for entrained above dams on the Cowlitz appreciable numbers of downstream this hatchery came initially from the River. A downstream migrant trap at migrants. The fact that they continue to now closed Beaver Creek Hatchery, Mayfield Dam recorded between 60 and produce smolts after long isolation which in turn was initiated using a 812 migrants per year from 1978 to suggests that even if the anadromous mixed stock of fish from within the DPS 1999. There was a single release of portion of the population continues to (Crawford 1979). We have no hatchery-derived anadromous cutthroat experience low number and declines, information that would lead us to trout above Mayfield Dam in 1981, but smolts will be produced that can exclude the Cowlitz River Hatchery all cutthroat trout currently above the supplement the anadromous portion of stock from the DPS at this time. dam are considered to be freshwater the population and take advantage of Therefore, all further analyses were forms (WDFW 2001c). Mayfield Dam any improvement in anadromous conducted including the Cowlitz River was built in 1962, blocking upstream habitat (e.g., ocean, estuary, mainstem Hatchery stock.
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As described in the proposed rule, we cutthroat trout due to budgetary specifically allows for the recognition of indicated that populations above limitations. On August 29, 2001, we DPSs at levels below taxonomically barriers that permit some one-way issued a press release announcing that, recognized species or subspecies. The migration should generally be included as part of a settlement agreement with coastal cutthroat trout is a recognized in the DPS. Populations above such conservation groups, we would subspecies of cutthroat trout (Behnke barriers may contribute commence work on the final listing 1992). demographically and genetically to decision for the Southwestern Issue 2: Two commenters suggested populations below barriers. The genetic Washington/Columbia River coastal that all life history forms, including similarity observed between cutthroat trout DPS (Center for populations above long-standing, populations above and below barriers Biological Diversity, et al. v. Norton, naturally-impassable barriers should be supports this interpretation (Johnson et Civ. No. 01–2063 (JR) (D.D.C.)). This included in the DPS. Two commenters al. 1999). Few, if any, natural barriers was followed by another proposed rule suggested that resident coastal cutthroat prevent some one-way migration. announcing an additional 30-day trout may contribute to anadromous Therefore, we have included all above- comment period, published in the smolt production, supporting the barrier populations as part of the DPS Federal Register (66 FR 58706) on inclusion of resident fish in the DPS. for the following analysis. Therefore, the November 23, 2001. We requested any Service Response: We fully evaluated DPS analyzed in this listing new information related to the status information on the relationship between determination includes all coastal and biology of the coastal cutthroat trout populations above and below long- cutthroat trout, whether naturally population in southwestern Washington standing, naturally-impassable barriers spawned, from hatcheries, or above and the Columbia River, any threats to and agree with the commenters (see barriers, within the area described the species, and any efforts being made Distinct Population Segment section). above. to protect native, naturally reproducing Based on the latest information populations. provided by WDFW (2001), we concur Previous Federal Actions that there are data showing that NMFS published a Status Review of Summary of Comments and cutthroat trout above long-standing coastal cutthroat trout in Washington, Recommendations barriers produce offspring that migrate Oregon, and California in January 1999. In the April 5, 1999, proposed rule to the estuary or ocean and return. We On April 5, 1999, NMFS and the Service and associated notifications, all have considered this information fully published a proposed rule in the interested parties were requested to in the Life History Diversity section Federal Register (64 FR 16397) submit factual reports or information above. We have included all life history proposing to list the coastal cutthroat that might contribute to the forms and populations above long- trout population in southwestern development of a final rule. Additional standing, naturally-impassable barriers Washington and the Columbia River, requests for public comment were in the final analysis of the DPS. excluding the Willamette River above published on April 14, 2000 (65 FR Issue 3: One commenter questioned Willamette Falls, as threatened pursuant 20123); July 14, 2000 (65 FR 43730); the delineation of the DPS, suggesting to the Endangered Species Act of 1973 September 6, 2000 (65 FR 53974); and that observed minor differences in (Act). We published a document in the November 23, 2001 (66 FR 58706). genetic makeup, life history, phenotypic Federal Register (65 FR 20123) on April Appropriate Federal and State agencies, traits, and habitat characteristics did not 14, 2000, extending the deadline from county governments, scientific support multiple DPSs for coastal April 5, 2000, to October 5, 2000 for the organizations, and other interested cutthroat trout. Several commenters final action on the proposed rule to list parties were contacted and requested to suggested the DPS did not meet the this population in Washington and comment. During the five open requirement for discreteness from other Oregon, and to provide a 30-day comment periods, a total of 127 populations beyond the DPS. comment period. On April 21, 2000, comments were received from 96 Service Response: DPSs of vertebrate NMFS and the Service published a different government agencies, populations may be listed under the Act notice of our assumption of jurisdiction organizations, or individuals, including if they satisfy the following two for coastal cutthroat trout. We published oral testimony at the four hearings held elements: (1) discreteness of the a document on June 2, 2000 (65 FR during the process. Many government population segment in relation to the 35315), reopening the public comment agencies, organizations, and individuals remainder of the species or subspecies period and announcing a public hearing provided comments during more than to which it belongs; and (2) significance in Illwaco, WA, on June 20, 2000. On one public comment period or hearing. of the population segment to the species July 14, 2000, we published a proposed Issue 1: Several commenters stated or subspecies to which it belongs (61 FR rule in the Federal Register (65 FR that coastal cutthroat trout should not 4721). 43730) to clarify the take prohibitions be listed as a DPS, but should be To be considered discrete, a DPS must for coastal cutthroat trout and provide considered for listing at the subspecies be markedly separated from other for a 30-day public comment period. levels and then only if it is reasonably populations of the same taxon as a This proposed rule was necessary to certain that it constitutes a separate consequence of physical, physiological, answer questions we had received subspecies based on significant ecological, or behavioral factors. regarding the application of the take characteristics. Quantitative measures of genetic or prohibitions of section 9 of the Act to Service Response: The Act defines morphological discontinuity may the proposed listing of the coastal species as ‘‘any species of fish or provide evidence of this separation. cutthroat trout as threatened. The wildlife or plants, and any DPS of any Genetic tests of samples from coastal comment period was again reopened species of vertebrate fish or wildlife that cutthroat trout in the DPS show that September 6, 2000 (65 FR 53974), and interbreeds when mature.’’ 16 U.S.C. populations within the DPS are more a hearing was held September 21, 2000, 1532(15). A DPS is a population of a closely related to each other than to in Aberdeen, WA, based on a request vertebrate species that is distinct from, populations in adjacent areas. This during the public comment period. In and significant to, the remainder of the indicates some level of reproductive November 2000, we suspended work on species or subspecies to which it isolation. As it only requires the proposed listing of the coastal belongs (61 FR 4721). This definition interbreeding of a few individuals
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between populations to effectively keep (50 mi)), and the fact that coastal analysis, treatment of outliers and the population genetics from diverging cutthroat trout are not thought to cross hybrids, analysis procedures (e.g., significantly, the differences described large open water as potential isolating measures of genetic distance), presence in the Status Review (Johnson et al. factors that would support smaller of hatchery and mixed origin stocks in 1999) demonstrate marked separation of DPSs. However, the same commenter the samples, and the potential effect of the coastal cutthroat trout in the DPS did provide evidence that isolation hatchery stock on local population from other adjacent areas. between Grays Harbor, Willapa Bay genetics. WDFW provided an alternative The second requirement for DPS and/or Lower Columbia coastal analysis and conclusion of the genetic status is the biological and ecological cutthroat is not complete, because information. significance of the population to the hatchery marked coastal cutthroat are Service Response: The principal subspecies. Significance includes, but is frequently observed at Willapa Bay purpose of genetic analyses for not limited to the following: (1) salmon hatcheries. WDFW (2000) Endangered Species Act evaluations is persistence of the DPS in an ecological suggested that the hatchery marked fish to understand the magnitude of genetic setting unusual or unique for the taxon; originated from either Lower Columbia diversity among populations throughout (2) evidence that loss of the discrete River or Grays Harbor because there the range of the species considered for population segment would result in a were no hatchery plants of coastal listing under the Act. The goal of such significant gap in the range of a taxon; cutthroat in Willapa Bay during this evaluations is not to identify every or (3) evidence that the discrete time period. Therefore, we conclude genetically isolated (or diverged) population segment differs markedly that the distance between Willapa Bay population, but rather to identify from other populations of the species in and Columbia River coastal cutthroat geographic subsets of the species its genetic characteristics (61 FR 4721). trout populations would not prevent conforming to the definition of a DPS The DPS has unique ecological anadromous cutthroat from interacting (61 FR 4721). The pattern of genetic characteristics that distinguish it from across these systems. diversity throughout the range of the other portions of the range. The DPS The alternative genetic analysis species is evaluated geographically to occupies aquatic systems that feed three presented by WDFW (2001) actually identify potential subsets for further large estuaries with extensive intertidal revealed a slightly higher genetic evaluation as DPSs. mud and sandflats, very different from similarity between Willapa Bay and In the genetic analysis, Johnson et al. estuaries north and south of the DPS. Lower Columbia River populations than (1999) excluded some outlier Loss of coastal cutthroat in the DPS between the former populations and populations from the statistical analysis. would result in a significant gap in the Grays Harbor. We agree that populations None of the populations within the DPS range of the taxon. Populations may be of coastal cutthroat trout in the DPS were excluded. Most of the excluded reproductively isolated because of appear to be substructured according to populations were from the Upper limited migratory range and timing. The major geographic areas. However, the Willamette DPS, and only one was from loss of these populations would magnitude of this substructuring, an adjacent DPS with anadromous negatively affect the genetic resources of relative to the amount of genetic components. Therefore, the exclusion of coastal cutthroat. divergence among the six DPSs outlier populations is unlikely to have Based on a review of available identified by NMFS (Johnson et al. significantly affected the interpretation information, we concluded that the DPS 1999), does not warrant further of the genetic information relative to the meets the criteria for discreteness and partitioning into two or more separate DPS. significance. Available data demonstrate DPSs. WDFW also presented observed We recognize that exclusion of that both environmental and genetic differences regarding life history ‘‘hybrids’’ from the population genetic factors indicate that the DPS is different characteristics of juvenile anadromous analyses conducted by the Status from other populations of coastal coastal cutthroat (smoltification age) Review Team may be more problematic. cutthroat trout. Further, we concluded comparing a single stream in the NMFS used a qualitative, genotypic that the available information supports Columbia River portion to a combined approach in their genetic analyses to the conclusion that the southwest data set from three streams in Willapa classify each individual fish as either a Washington/Columbia River DPS of Bay. While there were differences in the cutthroat trout, a rainbow/steelhead coastal cutthroat is biologically and percentage of individuals making their trout, or a ‘‘hybrid’’ (Johnson et al. ecologically significant to the first marine migration at age two (86 1999). It is necessary to remove hybrids subspecies. versus 61 percent), this may well be to accurately analyze regional genetic Issue 4: Several commenters evidence of minor local adaptations to patterns for coastal cutthroat trout, recommended splitting the DPS into the specific conditions in these few especially where hybrids are common. smaller segments. Most commenters individual streams. Without a more We are currently re-analyzing the data suggested separating the Grays Harbor/ extensive study, it is impossible to with a more quantitative approach Willapa Bay area from the Columbia determine if this difference is indicative based on multivariate statistical River because of physical, geographic, of these portions of the DPS. analyses. These analyses are not yet and/or biological isolating mechanisms. Based on the latest information, we complete, but preliminary analyses One commenter provided an alternative conclude that the DPS as defined in the indicate that the quantitative and genetic analysis that indicated the DPS proposed rule (64 FR 16397) meets the qualitative approaches are classifying should be split into three separate DPSs. requirements of a DPS, and that most individuals consistently. Service Response: There are alternative smaller DPSs are not Issue 6: Several commenters reported significant ecological and genetic supported by the information available that coastal cutthroat (especially similarities between the Columbia at this time. resident forms) are distributed River, Willapa Bay, and Grays Harbor Issue 5: Several commenters throughout the DPS and are locally portions of the DPS. All three occupy questioned the analysis and abundant in most areas. large estuary systems. One commenter interpretation of genetic data based on Service Response: Since obtaining pointed to the relatively long distances sample size, limited collection period, sole jurisdiction for this subspecies (64 between the Willapa Bay and Columbia lack of information on the resident FR 21376), we have assembled an River tributaries (approximately 80 km portion of the population in the extensive database regarding
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distribution (presence) of coastal we invoked this provision to help healthy-sized outside the DPS. cutthroat in the DPS. For example, in resolve substantial scientific However, this does not prove that Washington, we have documented that disagreement concerning above-barrier freshwater conditions have not coastal cutthroat occur in over 1,300 coastal cutthroat and hatchery contributed to declines in the locations within the DPS. This data set populations of coastal cutthroat (65 FR anadromous portions of the coastal includes the year 2001 sampling effort 20123). In addition, the current listing cutthroat trout population. Conditions conducted by WDFW in Lower decision is part of a settlement in spawning areas used by anadromous Columbia River streams. With this new agreement with conservation groups individuals and barriers to historic distribution information, we now have a that requires the final listing decision by anadromous spawning areas likely high degree of certainty that this June 23, 2002. Therefore, we are using contributed to declines, as have changes subspecies is well distributed the best available scientific and in the migration corridors (large rivers), throughout suitable habitats in the DPS. commercial information to reach a estuaries, and marine conditions. From these data, it is now apparent that listing decision, as required by the Act, Issue 10: Several commenters the historical distribution of coastal and by the court agreed deadline. described the impact of continued cutthroat has not contracted appreciably The Act requires that listing effects of logging to coastal cutthroat in the DPS (see Range and Distribution determinations be based on the best trout populations, including effects on section below). available commercial and scientific large woody debris availability, Issue 7: Several commenters information. We have received new increased disease, altered timing of suggested that the biological information since the proposed listing juvenile migrations, increased information presented in the Status specific to coastal cutthroat trout in the predation, smothering of eggs and fry in Review and proposed rule was not DPS. While information on this species gravels, and adverse effects to benthic adequate to proceed with a final listing. is not as rigorous and complete as is (bottom dwelling) invertebrates that Several commenters requested that we available for some other salmonids, we provide food for cutthroat trout. extend the time for the decision on the believe we have sufficient information Service Response: We agree that proposed rule to list, in part to better and evidence to support a final listing logging activities may have adverse assess or gather additional biological determination at this time. effects on coastal cutthroat trout and information. Issue 8: Several commenters have fully evaluated the past, current, Service Response: We are fully aware requested that we provide specific and future threats from these activities. of limited data available for the coastal numeric values for distribution and Our analysis is described in the Forest cutthroat trout in the DPS. The population thresholds. They stated that Management section below. The proposed rule (64 FR 16397) specifically these values were essential to determine completion of two large-scale forest addressed this issue in a section threatened status and future recovery for HCPs and Washington Forest Practices entitled, Data Limitations and Scientific this subspecies. Regulations have significantly reduced Uncertainty. In the proposed rule and Service Response: Distribution and the threats to coastal cutthroat trout subsequent Federal Register proposed population levels were evaluated in from logging in the DPS. Collectively, rules, we specifically requested determining the status of the species in remnant high quality habitat, ongoing additional information to aid us in the context of the historic condition of forest recovery, active efforts to identify acquiring the best scientific and the DPS, rather than in the context of and correct legacies of past commercial data available. In 2001, predetermined specific numerical management, improved standards for WDFW biologists, with some funding thresholds. We did not find any future management actions, and the from the Service, sampled over 130 significant change in distribution of ability of coastal cutthroat trout to locations to determine presence/absence coastal cutthroat trout in this DPS. As survive for long periods in degraded and relative abundance of coastal with most species, actual population aquatic and riparian systems provide cutthroat in Lower Columbia River numbers were not available for most of the basis for maintenance of habitat for tributaries. They also compiled other the DPS. Indices of population levels the DPS of coastal cutthroat trout. fish survey data sets from the year 2000 and trends were used to evaluate these Therefore, forest management is not to increase the sample size to over 150 aspects of the DPS and are described in likely to result in the DPS of coastal locations. The data collected from these the Population Size section above. cutthroat trout becoming endangered in surveys were extremely valuable in Perhaps of more value in determining the foreseeable future. assessing presence/absence and relative current condition and threats to the DPS Issue 11: One commenter expressed abundance, and in the analysis of the than actual numbers are the trends in concern about the potential impacts of five threat factors for much of the DPS. these index values and in potential municipal discharges and its impact to In 2001 we also funded a study that threats to the DPS, which were also water quality; instream and adjacent helped resolve issues of hybridization used in this determination and gravel pit operations and its effects on with rainbow/steelhead trout in described in the Population Trend spawning gravels; water withdrawals Washington. We have made every effort section above. reducing flows at critical periods; to gather all available information to Issue 9: One commenter suggested sedimentation as a result of road complete this listing determination. that because resident cutthroat trout building near spawning beds; and The Act requires us to complete a populations are generally healthy-sized, development resulting in reduced final listing decision within one year of one could conclude that human and riparian zones. Another commenter the publication of a proposed listing, natural factors resulting in adverse pointed out the potential effects of though it does allow for an extension of marine conditions, rather than agriculture and urban/rural not more than six months if there is ‘‘ freshwater conditions, are the cause of development on habitat conditions for * * * substantial disagreement among declines in anadromous forms. coastal cutthroat trout. scientists knowledgeable about the Service Response: We agree that the Service Response: We agree that all of species concerned regarding the latest information indicates that the these activities may adversely affect sufficiency or accuracy of the available resident portion of the population exists coastal cutthroat trout. We have fully data relevant to the determination in range and densities comparable to evaluated the past, current, and future concerned* * *.’’ On April 14, 2000, populations that are thought to be threats from these activities (Agriculture
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and Grazing Management, Mining, and coastal cutthroat trout in the DPS have steelhead and coho could affect Urban and Industrial Development likely decreased angler effort, in turn cutthroat trout in localized areas, sections below). While these activities reducing direct and indirect mortality of depending on the location and have affected aquatic and riparian coastal cutthroat trout in the DPS. magnitude of the releases. Releases in conditions in the DPS’s range, they are Information obtained during the public areas outside of historic coho habitat or generally localized in impact and do not comment periods supports the in numbers that greatly exceed natural affect the majority of the DPS. Under observation that angler effort has levels could have negative effects on current regulations, continued impacts decreased over time (see Overutilization cutthroat trout in the area of the release. from these activities are not likely to for Commercial, Recreational, Scientific, However, information demonstrating lead to the endangerment of the coastal or Educational Purposes section below). effects to the DPS from coho releases is cutthroat trout in the foreseeable future. We are aware that coastal cutthroat trout limited and the extent to which Issue 12: Several commenters are susceptible to hook and handling hatchery management affects coastal described the potential effects of mortality. While there are no studies cutthroat as a whole is uncertain. barriers (dams and culverts) to that have specifically evaluated the Interactions with hybrid steelhead/ anadromous cutthroat trout, including hooking mortality from bycatch of cutthroat trout are likely limited. Hybrid blockage of historic habitat and cutthroat trout in steelhead and salmon fish are no longer stocked in the DPS’s significant declines in all major fisheries, we anticipate that mortality range. Cutthroat trout and steelhead are tributaries above dams, with the likely from this bycatch would generally be naturally sympatric and have likely extinction of populations in the Wind small because of differences in the gear evolved mechanisms to avoid and Klickitat Rivers. One commenter used and timing of these fisheries. hybridization. Recent genetic data pointed out that coastal cutthroat trout Issue 14: Several commenters indicate that high levels of have generally not been included in the expressed concern about the potential hybridization are limited to a few areas. trucking efforts for other salmonids, effects of the introduction of non-native This is not currently considered a increasing the impact of barriers to these predators, including brook trout significant threat to the DPS of coastal fish. (Salvelinus fontinalis), shad (Alosa cutthroat trout. Service Response: We agree that sapidissima), largemouth bass Issue 15: Several commenters barriers can adversely affect migratory (Micropterus dolomieui), smallmouth suggested that we had not fully coastal cutthroat trout (see Dams and bass (Micropterus salmoides), and evaluated the contribution of existing Barriers section below). Existing dams walleye (Stizostedion vitreum). Several conservation efforts and regulatory block upstream access in several commenters were also concerned about mechanisms to potential future portions of the DPS’s range. The the potential effects of competition from conditions for the coastal cutthroat anadromous portion of the population is hatchery-stocked cutthroat trout, coho, trout, including the Oregon Salmon most likely affected by these large dams, and steelhead; hybrid cutthroat/ Plan, the Healthy Streams Partnership, while resident and some freshwater steelhead; and introduced non-native Oregon Land Use Planning regulations, migratory portions are likely little fish. Washington Growth Management affected as their habitat remains Service Response: We agree that Planning, Federal and State Clean Water substantially intact above dams and introduced predators or competitors can laws, Federal listing of other species diversions. Culverts are the most adversely affect coastal cutthroat trout under the Act, recent changes in Oregon widespread potential barriers to (see Disease and Predation section and Washington Forest Practices upstream migration. Again, anadromous below). Some of the non-native fish Regulations, changes in fishing and migratory portions of the coastal species listed by the commenters are regulations, and actions of local cutthroat trout population are the most known to prey on, or compete with, governments to protect and restore likely affected by these barriers, while salmonids in the DPS’s range (Poe et al. watersheds. the resident portion of the population 1994). However, no specific information Service Response: We fully evaluated likely remains extant above most exists regarding predation impacts by information on the most recent barriers. Blockage of upstream migration introduced predatory fishes on coastal regulations and their implementation, is not likely to increase given current cutthroat trout and we have no evidence including the State Forest Practices regulations, and some improvements are that introduced predators represent a Regulations and Clean Water Act likely through dam removal and culvert major threat to the DPS of coastal (CWA). There have been significant improvements. Despite existing barriers, cutthroat trout at this time. changes in the Washington Forest coastal cutthroat trout remain well We agree that competition with Practices Regulations since the distributed throughout the DPS’s range hatchery salmonids or non-native fish publication of the proposed rule. We and at levels apparently comparable to could adversely affect cutthroat trout also evaluated all other conservation healthy-sized populations in many (see Disease and predation, Hatchery efforts for salmonids, many of which are areas. Based on the current and likely management, and Other Factors sections non-regulatory in nature. In all cases, future effects, existing dams and other below). Only one hatchery still we evaluated the likelihood that the barriers are not likely to result in produces and stocks cutthroat trout regulation or program would be endangerment of the DPS of coastal within the DPS’s range. This hatchery implemented and would prove effective cutthroat trout in the foreseeable future. produces anadromous cutthroat trout in in reducing threats to the coastal Issue 13: Two commenters indicated a system with several barrier dams that cutthroat trout (see Inadequacy of that fishing pressure for anadromous have reduced natural access to historic Existing Regulatory Mechanisms and coastal cutthroat has decreased under freshwater habitat for anadromous Foreseeable Conservation Measures the current restricted regulations. cutthroat trout which is considered part sections below). Another commenter indicated that of the DPS. Hatchery steelhead and coho Issue 16: One commenter described hooking mortality from steelhead and are stocked in several streams in the the impacts from dredging, filling, and salmon fishing is a threat to coastal DPS’s range. Cutthroat trout and coho diking, all of which can affect important cutthroat trout. are naturally sympatric and have likely staging and feeding areas for Service Response: We are aware that evolved mechanisms to coexist. outmigrating trout, and thus adversely increasing restrictions of harvest for However, release of hatchery-raised affect populations. Another commenter
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stated that current guidelines for be determined to be an endangered or life-history form throughout the lower permitting programs (dredging, wetland threatened species due to one or more Columbia River Basin’’ (64 FR 16407). filling, etc.) lack a method for assessing of the five factors described in section While neither of these references specify cumulative impacts. 4(a)(1). If, upon consideration of these habitat loss due to forest management, Service Response: We agree that five factors, the species is found to meet this is the principal factor for decline dredging, filling, and diking can the definition of either a threatened or described in the proposed rule related to adversely affect coastal cutthroat trout endangered species, then listing is freshwater habitat loss. (see Inadequacy of Existing Regulatory called for. The proposed rule Forest Management Mechanisms section below). However, summarized the ‘‘* * * findings based on the implementation of current regarding the principal factors for The proposed rule to list the DPS as laws and regulatory programs, we decline across the range of coastal threatened stated that ‘‘[h]abitat conclude that the regulation of dredge, cutthroat trout’’ (64 FR 16402) (hereafter degradation and impacts associated fill, and in-water construction activities referred to as subspecies-wide review). with logging and related land through the section 404 and section 10 These were generalized for the entire management activities, in particular, permit processes and through State range of the six DPSs of the subspecies, have likely contributed to the decline of programs will provide some protection and were not specific to the coastal cutthroat trout’’ (64 FR 16402). and support of aquatic resources, southwestern Washington/Columbia The potential effects of logging and though they may not fully remove the River DPS that was proposed for listing. related practices described in the risk of some losses to cumulative effects The specific factors relevant to the proposed rule included changes in from small individual projects. The proposed rule to list the Southwestern water temperature leading to potential remaining risks from cumulative effects Washington/Columbia River DPS are disease outbreaks, altered timing of are likely to be small in the short term described in a separate section of the migration, and accelerated maturation; and we do not anticipate that proposed rule (64 FR 16407, 16408). changes in stream flow regimes cumulative effects of these small These factors and their application to potentially leading to adverse water projects will reach a level at which they our decision to withdraw the proposed velocities and depth characteristics; loss would be likely to result in the DPS of rule to list the coastal cutthroat trout in of potential for new large woody debris coastal cutthroat trout becoming southwest Washington and the potentially increasing predation rates on endangered in the foreseeable future. Columbia River are described below. cutthroat trout; loss of riparian areas leading to decreased invertebrate Issue 17: One commenter requested The following specifically addresses production and detritus sources, key that we propose critical habitat at the conditions and threats within the DPS’s components in the food chain; and time of listing. range. Service Response: When we list a siltation which may hinder fry species as threatened or endangered, the A. The Present or Threatened emergence and production of benthic Act requires that the listing rule specify, Destruction, Modification, or invertebrates. Indirect effects of logging ‘‘* * * to the maximum extent prudent Curtailment of Its Habitat or Range. could also reduce dissolved oxygen and determinable,’’ the species’ critical reducing egg and fry survival. Threats to Coastal Cutthroat Trout Past and current forest management is habitat. However, critical habitat is no Habitat longer an issue as we are withdrawing the most widespread source of the proposed rule to list the coastal Six types of activities or land use have modification of aquatic, riparian, and cutthroat trout. potential to affect coastal cutthroat trout watershed conditions within the DPS’s Issue 18: Grays Harbor County habitat, including forest management, range, as forests cover 66 percent of the suggested that we are required to agriculture and livestock management, land base. Past timber management complete an Environmental Impact dams and barriers, urban and industrial practices such as the use of splash dams Statement under the National development, mining, and estuary (early 1900s), extensive riparian harvest, Environmental Policy Act (NEPA) on degradation. Only forest management concentrated upland harvest, riparian the proposed listing and asked to be and estuary degradation were described and mid-slope roads, and sidecast road designated as the lead organization for as principal factors for declines across construction have modified aquatic and writing the document. the range of coastal cutthroat trout in riparian conditions in many portions of Service Response: In regards to NEPA, the subspecies-wide review in the the DPS’s range. These practices have we have determined that Environmental proposed rule (64 FR 16402) and only reduced current and future large woody Assessments and Environmental Impact estuary degradation was specifically debris, reduced pool quality, decreased Statements, as defined under the mentioned specific to the southwestern stream shading resulting in increased authority of the NEPA of 1969, need not Washington/Columbia River DPS (64 FR water temperature, and increased the be prepared in connection with 16407). prevalence of landslides in some areas. regulations adopted pursuant to section Specific to the southwestern This is of particular concern in areas 4(a) of the Endangered Species Act, as Washington/Columbia River DPS, the where watersheds have been fully amended. A notice outlining our proposed rule stated that ‘‘* * * severe harvested in the past, such as some reasons for this determination was habitat degradation throughout the Grays Harbor tributaries (1940s and published in the Federal Register on lower Columbia River has contributed to 1950s), and in areas where harvest did October 25, 1983 (48 FR 49244). dramatic declines in anadromous not peak until the late 1970s, such as coastal cutthroat trout populations and some Willapa Bay tributaries. Most of Summary of Factors Affecting the two near extinctions of anadromous these practices are no longer allowed Species runs in the Hood and Sandy Rivers’’ (64 under recent and current forest Section 4(a)(1) of the Act and FR 16407). The proposed rule also management regulations, and splash regulations implementing the listing stated that ‘‘[h]abitat degradation in dams have not been used for many provisions of the Act (50 CFR part 424) stream reaches accessible to decades. set forth the procedures for adding anadromous coastal cutthroat trout, and Despite the long-term, widespread species to the Federal list of threatened poor ocean and estuary conditions, impacts to aquatic and riparian and endangered species. A species may likely combined to severely deplete this conditions, coastal cutthroat trout have
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survived in all portions of the DPS for Inadequacy of Existing Regulatory management was not identified as a many generations, and apparently Mechanisms section). Collectively, primary threat to the subspecies or the remain at densities comparable to remnant high quality habitat, ongoing DPS in the proposed rule and is not healthy-sized populations elsewhere forest recovery, active efforts to identify considered a significant threat at this (WDFW 2001), indicating that they are and correct legacies of past time. capable of surviving long periods under management, improved standards for Dams and Barriers these conditions. There is no reason to future management actions (Inadequacy believe that they will not continue to do of Existing Regulatory Mechanisms Within the DPS, migratory coastal so. We have no specific evidence of section), and the ability of coastal cutthroat trout access and movements disease outbreaks, altered timing of cutthroat trout to survive for long are blocked in some areas by dams, migration, and accelerated maturation periods in degraded aquatic and diversions, dikes, tide gates, poorly- resulting from water temperature riparian systems provide the basis for designed culverts, and poor water changes, or of significantly increased maintenance of habitat for the DPS of quality, though dams and barriers were predation rates, which were described coastal cutthroat trout. Therefore, forest not identified as threats in the in the proposed rule as principal factors management is not likely to result in the subspecies-wide review of listing factors for declines across the range of coastal DPS of coastal cutthroat trout becoming (64 FR 16402) or the DPS-specific cutthroat trout (64 FR 16402) as the endangered in the foreseeable future. review for the southwestern consequences of logging and related Washington/Columbia River DPS (64 FR Agriculture and Livestock Management land management activities. Nor do we 16407). Existing dams have blocked have any evidence of decreased Agriculture and livestock access for upstream migration to several invertebrate production in forested areas management occur on at least 16 portions of the DPS. Even dams with leading to decreases in available food or percent of the lands in the southwestern fish passage structures result in some reduced egg or fry survival, also Washington/Columbia River DPS, with mortality and may delay migrations. described in the proposed rule as the relatively greater representation in the The anadromous portion of the DPS is consequences of logging and related Grays Harbor tributaries. Neither of the most likely affected by dams and land management activities. these activities were identified as a diversions, as these often limit access to Conditions of the riparian and aquatic threat to coastal cutthroat trout in the historic spawning areas. Resident and systems in some forest lands are subspecies-wide review of listing factors some freshwater migratory portions of actually in the long-term process of (64 FR 16402) or the DPS-specific the DPS are likely little affected by large recovery from past forest management review for the southwestern barriers, as their access to habitat practices, though the total area of Washington/Columbia River DPS (64 FR remains intact above the dam. Road improvement is unrecorded. For 16407). Some of the aquatic and riparian culverts, especially on forest roads, example, some flow regimes are already impacts associated with agriculture are present widely-dispersed potential beginning to improve as forest cover has locally severe and very long-term, such barriers to upstream movements of increased and some riparian areas are as diking, filling, riparian conversions, coastal cutthroat trout in the DPS, revegetated with 40-year-old conifers channelization, sediment and flow though most culverts allow for that will provide large woody debris regime changes, and persistent toxic downstream movements, and some sources in the future. Some areas of high chemicals. In addition, agricultural allow upstream movement seasonally. quality aquatic and riparian systems areas are often located in the lowest Existing information indicates that remain. Approximately eight percent of stream sections which are often the culverts have limited upstream access to the DPS’s range is in wilderness or most productive portions of the streams. a portion of historic habitat though the National Parks and is in good condition. Impacts to these stream sections have a extent of this limitation is not fully High quality aquatic and riparian areas proportionally greater effect on the documented. Again, anadromous and remain on other lands, ranging from 13 anadromous and migratory portions of migratory portions of the coastal percent in narrow valleys to 31 percent the DPS of coastal cutthroat trout, which cutthroat trout population are the most in wider, forested valleys. use these sections for migration, likely affected by these barriers, while Over time, aquatic and riparian overwintering, and rearing young, while the resident portion of the population habitats important to coastal cutthroat much of the resident portion of the likely remains extant above most trout are likely to continue to improve. population resides in the upper barriers. Federal forest management and watershed areas where agriculture is not Current Washington and Oregon State Washington Forest Practices Regulations generally prevalent. Forest Management Regulations and fish have been revised significantly in recent Most lands suitable for agriculture passage standards will minimize the years so that habitat modification of the and grazing management have already threat that new culverts will block fish magnitude or type experienced over the been converted and it is unlikely that passage (see Inadequacy of Regulatory past 70 years is no longer likely to there will be any significant increase in Mechanisms section). In addition, under occur. Current regulations, mainly the amount of agricultural and grazing the latest Washington Forest Practices aimed at improving stream habitat for lands in the future. While agriculture Regulations, forest managers are salmon and steelhead, impose more and grazing management may have had required to develop road maintenance restrictive standards for riparian significant localized and long-term and management plans within 5 years harvest, harvest on unstable slopes, road effects to riparian and aquatic systems and implement such plans within 15 construction, and road maintenance; in the DPS’s range, coastal cutthroat years. Blockage of upstream migration is and reduce the likelihood of large-scale trout remain extant in all the affected not likely to increase given current removal of forest cover in a watershed watersheds. Based on the limited extent regulations. Despite existing barriers, on Federal lands, and State and private of agricultural lands, agriculture and coastal cutthroat trout remain well timberlands in Washington. These grazing are not likely to result in the distributed throughout the DPS’s range changes have greatly reduced the long- southwestern Washington/Columbia and at levels apparently comparable to term risk of continued modification of River DPS of coastal cutthroat trout healthy-sized populations in many aquatic and riparian habitats in 57 becoming endangered in the foreseeable areas. The greatest threat from barriers percent of the DPS’s range (see future. Agriculture and livestock is interference with recolonization of
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areas after catastrophic disturbances, of the current land base in the DPS. on how coastal cutthroat trout use the though these are very long-term Expansion of urban areas is likely to estuary habitats, we cannot predict the concerns. Floods and related events, in occur primarily within the areas already effect of this loss on the coastal particular, tend to remove roads and impacted and is not likely to cutthroat trout population. However, the barrier culverts. Based on the current substantially increase the impacts to the loss of estuary habitat has likely and likely future effects, and the low DPS. The vast majority of the DPS is not contributed to the lower-than-historical potential for significant additional significantly affected by urbanization. numbers of the anadromous portion of barriers to be created under current Therefore, urbanization and industrial the DPS, though anadromous cutthroat regulations, dams and barriers are not development are not likely to result in trout remain extant in all three major likely to result in endangerment of the the DPS of coastal cutthroat trout basins within the DPS. Resident and DPS of coastal cutthroat trout in the becoming endangered in the foreseeable freshwater migratory portions of the foreseeable future. Dams and barriers, future. population do not use, and therefore are other than those potentially associated not affected by changes in, the estuaries. Mining with logging practices, were not Given current laws and regulations on identified as a primary threat in the Gravel mining has degraded some wetland dredge and fill (see Inadequacy proposed rule and are not considered a stream channels in portions of the DPS’s of Existing Regulatory Mechanisms significant threat at this time. range as a result of past, unregulated section), we do not anticipate additional removal. Mining was not identified as a large-scale conversion or loss of estuary Urban and Industrial Development threat in the subspecies-wide review of or off-channel areas, though some small Although the direct aquatic and listing factors (64 FR 16402) or the DPS- scale impacts are still likely, and the riparian impacts of urbanization in the specific review for the southwestern legacy of past actions will result in some southwestern Washington/Columbia Washington/Columbia River DPS (64 FR continued changes. The only large-scale River DPS are not widespread, they are 16407). Current regulations and permit project currently proposed is the locally severe and essentially requirements have reduced, though not Columbia River Channel Improvement permanent. Urban and industrial totally eliminated, the impact of gravel Project which will deepen 166 km (103 development was not specifically mining (see Inadequacy of Existing mi) of the already-dredged, narrow identified as a threat in the subspecies- Regulatory Mechanisms section). While navigation channel. This project is wide review of listing factors (64 FR some continued problems may occur, anticipated to have limited short-term 16402) or the DPS-specific review for these will be fairly small and localized, impacts to estuarine and riverine the southwestern Washington/Columbia and do not represent a major threat to conditions, and will be monitored River DPS (64 FR 16407), although it the DPS of coastal cutthroat trout at this carefully in the future to minimize any was identified as a potential effect in the time. There is a single coal mine in the impacts to known fish habitat (USFWS range of the species where it occurs Skookumchuck basin (WSCC 2001) and 2002). The resident portion of the within estuaries. ‘‘Dredging, filling, and no known plans for additional coal or population is completely unaffected by diking of estuarine areas for * * * hardrock mining in the DPS’s range. estuary conditions and changes. The commercial or municipal uses have Other mining activity in the DPS’s range current condition, limited likelihood of resulted in loss of many estuary is very limited and does not represent continued degradation or loss of estuary habitats’’ (64 FR 16402). This element of a major threat to the coastal cutthroat habitat, and remaining populations of development is addressed in the Estuary trout. Mining was not identified as a cutthroat trout lead us to conclude that Degradation section. Many of the largest primary threat in the proposed rule and estuary conditions are not likely to urban areas in this DPS lie above the is not considered a significant threat at result in the DPS of coastal cutthroat estuaries, and therefore have not this time. trout becoming endangered in the resulted in physical changes to the foreseeable future. Estuary Degradation estuaries. The proposed rule described the Urban areas are expected to expand in The proposed rule described the potential loss of important estuary some areas as human populations potential loss of important estuary habitat and stated that reductions in the increase, particularly in the Portland habitat through the ‘‘[d]redging, filling, quantity and quality of estuarine habitat Metropolitan area. The long-term effects and diking of estuarine areas for probably contributed to declines of of urbanization include diking, filling, agricultural, commercial, or municipal anadromous cutthroat trout, but the riparian conversion, channelization, uses’’ (64 FR 16402) and stated that relative importance of these risks was sediment and flow regime changes, ‘‘reductions in the quantity and quality not well understood (64 FR 16402). This water storage, and persistent toxic of estuarine * * * habitat have probably is further complicated by the lack of chemicals. These urban areas are often contributed to declines, but the relative information on how coastal cutthroat located in the lowest stream sections importance of these risks is not well trout use these large estuary systems. where flood plains are wide and stream understood’’ (64 FR 16408). Significant portions of the estuarine gradients are low, and therefore have a Anadromous coastal cutthroat trout wetlands remain intact in the Willapa proportionally greater effect on the likely make use of estuaries for growth Bay and Grays Harbor systems and, to anadromous and migratory portions of and development, though we have little a lesser degree, the Columbia River the coastal cutthroat trout population information on how individual trout use estuary. Given current regulations, we that use these sections for migration, the various portions of the estuary, do not anticipate additional large-scale overwintering, and rearing. Much of the especially the large estuaries included conversion or loss of estuary or off- resident portion of the population in this DPS. The Columbia River estuary channel areas. While past losses of resides in the upper watershed areas has lost 12 percent of its area since estuaries may have contributed to a where urbanization is not prevalent. 1868, including 65 to 75 percent of off- reduction in the anadromous portion of While urbanization and associated channel habitats. Thirty percent of the the coastal cutthroat trout population industrial development have potentially historical wetland habitat in Grays over historic levels, we do not have substantial effects on aquatic and Harbor estuary has been lost, as well as evidence that the past and potential riparian habitats in localized areas, 31 percent of the historical Willapa Bay future losses are likely to result in the these include only about three percent estuary wetlands. Without information DPS of coastal cutthroat trout as a whole
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becoming endangered in the foreseeable cutthroat trout throughout the range of of the DPS for presence and abundance future. this DPS. Some areas have begun to of coastal cutthroat trout. Additional recover from past forest practices and data were presented by WDFW (2001) Conclusion new regulations are in place that reduce for surveys conducted by Weyerhaeuser The proposed rule stated that ‘‘*** the risk of continued adverse impacts to Company in 1994–95. The percentage of severe habitat degradation throughout much of the DPS. Conditions in many locations with cutthroat trout from both the lower Columbia River has parts of the DPS’s range are expected to studies was compared to data collected contributed to dramatic declines in continue to improve over time and in the 1970s from the Olympic anadromous coastal cutthroat trout many of the most damaging past Peninsula and Puget Sound areas. populations and two near extinctions of practices (e.g., splash dams, large-scale Populations in these areas were anadromous runs in the Hood and wetland conversion) are not expected to considered healthy-sized during this Sandy Rivers,’’ and that ‘‘[h]abitat occur in the future due to current laws time period (WDFW 2001c). The degradation in stream reaches accessible and regulations. Given that coastal percentage of sample sites with coastal to anadromous coastal cutthroat trout, cutthroat trout have not only survived cutthroat trout within the DPS’s range and poor ocean and estuary conditions, the long-term and widespread impacts below Bonneville Dam (Mongillo and likely combined to severely deplete this of these past practices to aquatic and Hallock 2001, WDFW 2001c) was not life-history form throughout the lower riparian conditions in large portions of significantly different than the early Columbia River Basin’’ (64 FR 16407). the DPS’s range for many generations, data from the apparently healthy-sized Based on analysis of the latest data, we but apparently remain well distributed populations in the Olympic Peninsula now conclude that, while the at densities comparable to healthy-sized and Puget Sound DPSs, indicating that anadromous portion of the population populations elsewhere, the condition of populations in the DPS are still well of coastal cutthroat trout is likely at aquatic and riparian systems is not distributed. lower-than-historic levels, there is little likely to result in endangerment of the The percentage of sites where specific information indicating that DPS of coastal cutthroat trout in the cutthroat trout were found in the populations, even of the anadromous foreseeable future. Therefore, we no Washington portion of the DPS above portion of the DPS, are at extremely low longer conclude that past habitat Bonneville Dam was very low when levels in most areas of the DPS (see degradation has led to severe declines in compared to the rest of the DPS. No Population Size section). Relative to the the population of coastal cutthroat trout similar information was available for two near extinctions cited in the in the southwestern Washington/ Oregon portions of the DPS. The area proposed rule, the data do not support Columbia River DPS. In addition, above the Bonneville Dam is this conclusion (see Population Size current regulations (described in the ecologically very different from the section). The trap location on a side Forest Management and State Land Use remainder of the subspecies’ range and channel in the Sandy River system Practices sections) greatly reduce the is the only area within its range where makes it impossible to extrapolate to the risk that significant additional the subspecies is found east of the entire River system. Anadromous modification of habitat will occur in the Cascade Mountain Divide. This area cutthroat trout are still occasionally foreseeable future. experiences a very different hydrologic trapped at Powerdale Dam on the Hood and climatic environment than the rest River, including 11 upstream migrants Curtailment of Range of the subspecies’ range, which may in 2001 (Connolly et al. 2002). According to WDFW (2001), the influence the abundance of coastal The proposed rule’s conclusions southwestern Washington-lower cutthroat trout. In addition, many assumed that the anadromous Columbia River region historically sample sites from the Mongillo and component of the population of coastal supported healthy, highly productive Hallock study (2001) in the Washington cutthroat trout is effectively isolated coastal cutthroat trout populations. portion of the DPS above Bonneville from other portions of the population Coastal cutthroat trout, especially the Dam included areas outside the likely and that the anadromous component freshwater forms, are still well historic range of the species, which represents a significant portion of the distributed in most river basins in this would have artificially depressed the DPS. However, new data indicate that geographic region, although probably in percentage of locations with cutthroat fish with these various life strategies do lower numbers relative to historical trout. Based on these factors, the interact and that anadromous progeny population sizes (Johnson et al. 1999). calculated percentage of sites with may be produced by non-anadromous Based on over 1,300 locations from 5 cutthroat trout from the Mongillo and parents, even after many generations of data sources (WDFW 2001a (Resident Hallock study (2001) above Bonneville isolation above barriers (see Life History Fish Database 1987–97), WDFW 2001b Dam likely under-represents the true Diversity section). Therefore, coastal (Priority Habitat Species database 1989– density of coastal cutthroat trout in this cutthroat trout populations are more 90), Washington Department of Natural area. appropriately evaluated including all Resources (WDNR) 2001 (Last Fish, Last There has been a change in the life history strategies, anadromous, Fish Habitat Database 2001), Mongillo accessibility of some areas to migratory and resident. Resident/ and Hallock 2001, U.S. Forest Service anadromous cutthroat trout due to freshwater forms remain well Watershed Analysis Documents 1995– barriers created by dams, diversions, distributed and at reasonable densities 2001), cutthroat trout remain extant culverts, dikes, tidegates, and water in the lower Columbia River, including throughout their historic range in the quality. Some streams within the DPS’s areas accessible to anadromous fish, and Washington portion of the DPS. Little range have been lost to development, in the Sandy and Hood Rivers where the systematic information is available for such as streams in the more developed anadromous portion of the population is the Oregon portion of the DPS, though portions of Portland, Oregon. The total low. cutthroat trout, particularly resident amount of currently inaccessible habitat While aquatic and riparian systems forms, are known to occur throughout is unknown, but it includes only a very have been heavily altered in some areas, the DPS in Oregon (Hooton 1997). small percentage of the total available the latest information does not support Mongillo and Hallock (2001) habitat within the DPS’s range and is the conclusion that this has severely conducted extensive surveys of 156 interspersed with occupied habitat. affected the habitat of the coastal locations within the Washington portion Despite the long-term, widespread
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impacts to aquatic and riparian portions of the DPS in Washington. might occur and this was not identified conditions, coastal cutthroat trout have Washington’s current fishing as a specific threat in the southwestern survived in these areas for many regulations, particularly the more Washington/Columbia River DPS (64 FR generations and remain well distributed restrictive ‘‘special rules’’ which affect 16407). There is no evidence that at densities comparable to healthy-sized nearly all of the DPS, provide protection poaching is a significant threat to the populations in large portions of the to coastal cutthroat while allowing DPS of cutthroat trout. DPS’s range. There is no reason to fishing opportunities that can promote There is no information to indicate believe that they will not continue to do conservation of this subspecies. We that commercial or recreational fishing so. Based on the above information, believe that carefully regulated fishing represents a threat to the DPS of coastal there is no significant present or can promote awareness and cutthroat trout. Overutilization, identifiable threat of curtailment of the conservation of coastal cutthroat trout including recreational and commercial range of the DPS. by maintaining public support for its fishing, was not identified in the conservation. Continued recreational proposed rule as a threat to this DPS B. Overutilization for Commercial, fishing conducted in a manner and is not considered a threat at this Recreational, Scientific, or Educational consistent with the conservation of the time. The States of Washington and Purposes. coastal cutthroat trout helps to maintain Oregon have continued to modify Cutthroat trout are not harvested a broad support base for the regulations in response to changes in commercially. Scientific and conservation of aquatic resources, cutthroat trout populations. educational programs have probably including coastal cutthroat trout. C. Disease or Predation had little or no impact on the DPS. Leider (1997) provided a summary of The proposed rule to list the WDFW ‘‘special regulation’’ changes The proposed rule stated that Southwestern Washington/Columbia that were developed to protect coastal ‘‘[d]isease may be a factor contributing River coastal cutthroat trout DPS stated cutthroat in Washington. In the DPS’s to the decline of cutthroat trout that ‘‘* * * cutthroat trout are a popular range, major special regulations populations,’’ including the parasite gamefish throughout the Pacific occurred in 1983 (limit reduced from 12 Ceratomyxa shasta in the Columbia and Northwest, and available information to 8 trout per angler), 1986 (limit further Willamette Rivers (ODFW 1998), though indicates that recreational fishing may reduced to 5 fish), 1992 (limit reduced the extent to which this and other have contributed to the general decline to 2 fish). Minimum size limits also diseases affect cutthroat trout of cutthroat trout populations increased during this time. In addition, populations was unknown (64 FR (Gresswell and Harding 1997)’’ (64 FR wild cutthroat release was required in 16402). Disease or parasites were not 16402). This information was not some streams within the DPS’s range listed as a specific threat to the majority specific to coastal cutthroat trout, or to starting in 1989 and expanded to all of the DPS (64 FR 16407). Predation by the southwestern Washington/Columbia lower Columbia River streams below non-native fish and pinnipeds (seals River DPS, and the referenced paper Portland/Vancouver in 1992 (Leider and sea lions) was also identified as a does not indicate that angling is a direct 1997). Currently, in the Chehalis River potential threat, though the extent to cause of decline. Basin, most streams allow a 2-fish daily which this was a factor in coastal Cutthroat trout are among the limit with a 36 cm (14 in) minimum size cutthroat trout declines was unknown salmonids most vulnerable to limit and, in Willapa Bay and Lower (64 FR 16402) and predation was not overharvest by angling (Gresswell and Columbia tributaries, wild cutthroat listed as a specific threat to the DPS (64 Harding 1997, Johnson et al. 1999), release is generally required. The FR 16407). especially during post-spawning exceptions to this wild cutthroat release Coastal cutthroat trout in the outmigrations to summer feeding areas. regulation are mainly in the mainstem Columbia and other large rivers with In many areas, coastal cutthroat trout Columbia River above Bonneville Dam, hydroelectric dams are potentially harvest is primarily incidental in above the Cowlitz River Dams, and in vulnerable to gas bubble disease caused recreational fisheries for other species of the Toutle River Drainage (WDFW by increased gas saturation levels salmonids. Because of harvest 2001d). associated with the spilling of water at restrictions on naturally produced The proposed rule stated that ‘‘*** dams. The disease’s effects can range coastal cutthroat trout in many areas coastal cutthroat trout are especially from temporary debilitation to and the lack of targeted fisheries, direct susceptible to hooking mortality and mortality. Because of variability in mortality due to fishing pressure is incidental catch in recreational and water temperature, depth, flow, and thought to be relatively low, at least in commercial fisheries targeting Pacific other factors, the biological effects of a recent years (Hooton 1997, Gerstung salmon and steelhead’’ (64 FR 16402). given level of dissolved gas saturation 1997, WDFW 1998a). In addition, Studies of anadromous cutthroat trout are likely to vary in different areas at fishing regulations establishing size and show variable susceptibility to baited various times of the year. Increased gas bag limits are relatively recent, and hook mortality, from 6 to 58 percent saturation levels have been identified at biologists familiar with coastal cutthroat (Gresswell and Harding 1997). There is the Bonneville and Dalles dams, and trout feel that in some areas their no current evidence that recreational can adversely affect fish downstream of abundance has begun to increase only harvest, whether targeted or incidental these dams. In recent years, NMFS has recently due to imposition of these more to other fisheries, is contributing to proposed to balance the needs of restrictive fishing limits (WDFW 1998b). declines in the DPS. There is also no juvenile salmonid migrants by The Washington and Oregon trout evidence that bycatch of coastal increasing spill levels to reduce turbine- fishing regulations have become cutthroat trout in commercial salmon related mortalities, resulting in elevated incrementally more restrictive in the and steelhead fisheries is a significant gas supersaturation levels in the past two decades. Several types of source of mortality in this DPS. Columbia River. Spill levels of up to 120 recreational fishing for coastal cutthroat The proposed rule stated that ‘‘*** percent of saturation at ambient trout are allowed under current fishing poaching may pose a significant threat temperature and pressure have occurred regulations in these States. However, to depressed populations of cutthroat in recent years during managed spills, catch and keep fisheries on wild coastal trout in some areas’’ (64 FR 16402), with involuntary spill episodes cutthroat trout are limited to some though it did not indicate where this resulting in levels as high as 140 percent
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at some sites (NMFS 2000). At levels of Columbia River estuary near artificial productivity and resiliency of riparian 120 percent, gas bubble disease affects islands in the Columbia River, though and aquatic ecosystems. a maximum of 0.7 percent of fish there is no information on the Riparian reserves apply to all lands exposed, and near 140 percent, over 3 vulnerability of cutthroat trout in this managed under the Northwest Forest percent of fish exposed are affected situation. There is no evidence that Plan and are intended to maintain and (NMFS 2000). While this could cause mammal or bird predation represents a restore riparian structures and the loss of some individuals, it is not significant threat to the DPS of coastal functions. They occur at the margins of considered a significant threat at this cutthroat trout at this time. Predation standing and flowing water, intermittent time. was not identified in the proposed rule stream channels, ephemeral ponds, and Ceratomyxa shasta, a native parasite as a specific threat to this DPS (64 FR wetlands, though they may also include that can kill cutthroat trout when water 16407) and is not considered a threat at upland areas necessary for maintaining temperatures are high, occurs in the this time. ecological processes. Key watersheds lower Columbia River drainages serve as refugia for maintaining and (Hoffmaster et al. 1988) and has been a D. The Inadequacy of Existing recovering habitat for at-risk stocks of factor in the loss of cutthroat trout at Regulatory Mechanisms. anadromous salmonids and resident fish hatcheries in this area. The effect of the Federal Land Management Practices species. parasite increases as water temperature Watershed analyses are the principal increases. Ceratomyxa shasta is a native The proposed rule indicated that the tool for implementation of the Aquatic parasite in the Pacific Northwest and Northwest Forest Plan’s management Conservation Strategy and play a critical coastal cutthroat trout have likely policy provided important benefits for role in providing for aquatic and developed strategies or life history salmonids, including coastal cutthroat riparian habitat protection. Watershed adaptations to cope with this parasite. trout, though its effectiveness in analyses should identify processes that Parasites and diseases were not listed in conserving cutthroat trout was limited are active within a watershed, how the proposed rule as specific threats in by the extent and distribution of Federal those processes are distributed in time the DPS (64 FR 16407) and are still not land ownership (64 FR 16397). and space, the current upland and anticipated to threaten wild coastal Approximately 27 percent of the land riparian conditions of the watershed, cutthroat trout in the DPS. No base within the DPS’s range is Federal and how all of these factors influence introduced diseases have been land, managed by the Forest Service, riparian habitat and other beneficial documented in the DPS. There is no Bureau of Land Management, National uses. Watershed analyses provide the evidence of significant loss of wild Park Service, and Fish and Wildlife contextual basis at the site level for cutthroat trout to parasites or disease in Service. One percent of the DPS’s range decision makers to set appropriate the DPS at this time. is in National Parks or National Wildlife boundaries of Riparian Reserves, plan Several non-native fish species are Refuges, both of which are managed land use activities compatible with known to prey on, or compete with, under laws and regulations that should disturbance patterns, design road salmonids within the DPS’s range (Poe provide adequate management for the transportation networks that pose et al. 1991). However, no specific conservation of the cutthroat trout. The minimal risk, identify high priority information exists regarding predation remaining 26 percent is managed under restoration activities, and establish specific parameters and activities to be impacts by predatory fishes on cutthroat the requirements of the Northwest trout, though it is reasonable to assume monitored. Watershed restoration is also Forest Plan. The Northwest Forest Plan some predation does occur. We have no an integral part of a program to aid contains important benefits to, and evidence that aquatic predators have recovery of fish habitat, riparian habitat, conservation measures for, salmonids, significantly reduced coastal cutthroat and water quality, and is based on including cutthroat trout. The overall trout populations or represent a major watershed analyses and planning. effectiveness of the Northwest Forest threat to coastal cutthroat trout. Non- All lands within the Northwest Forest Plan in conserving the DPS of cutthroat native predators were not identified in Plan are placed into one of six land use trout is somewhat limited by the extent the proposed rule as a threat to this DPS allocations. These allocations dictate the of Federal lands and by the fact that (64 FR 16407) and are not considered a type and standards for activities within Federal land ownership is not uniformly significant threat at this time. the allocation. Congressionally Reserved The proposed rule stated that while distributed. Most of the lands in the Areas (e.g., wilderness areas) constitute pinniped populations are increasing on DPS’s range are located in the upper 22 percent of the Federal lands within the West Coast, ‘‘* * * the extent to watersheds, providing habitat primarily the DPS’s range and are the most which pinnipeds predation is a factor for freshwater forms of the cutthroat protected type of allocation. causing the decline of coastal cutthroat trout. Two components of the Northwest Administratively Withdrawn Areas are trout is unknown’’ (64 FR 16402). Forest Plan provide conservation for designated for a variety of reasons and Pinnipeds are potential natural salmonids, the Aquatic Conservation are generally fairly protective of aquatic predators of cutthroat trout that use the Strategy and land allocations with their and riparian systems. Administratively estuaries and near-shore marine associated standards and guidelines. Withdrawn Areas constitute 5.7 percent environment (NMFS 1997, Beach et al. The Aquatic Conservation Strategy of the Federal lands within the DPS’s 1985). In addition, mustelids, such as was developed to restore and maintain range. There is a low likelihood of short- otter and mink, and other mammals are the ecological health of watersheds and or long-term adverse effects to cutthroat natural predators in both salt and aquatic ecosystems contained within trout in Congressionally Reserved Areas freshwater environments, though there lands administered by the Bureau of or Administratively Withdrawn Areas are no studies of the level of predation Land Management and Forest Service. It due to the low likelihood of activities by any mammals. Piscivorus birds, such consists of four primary elements: (1) occurring that impact resident or as terns and cormorants, are also natural riparian reserves; (2) key watersheds; (3) anadromous coastal cutthroat trout or predators of coastal cutthroat trout. watershed analyses; and (4) watershed their habitat. There is information indicating that restoration. All four of these Late-Successional Reserves are terns and cormorants may take components are designed to operate intended to maintain a functional, significant numbers of salmonids in the together to maintain and restore the interactive, late-successional and old
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growth forest ecosystem. In the long correction of site-specific road impacts Act is limited, and minimum guidelines term, Late-Successional Reserves and (culvert replacement, drainage established by the State for designating their associated Standards and problems, etc.). natural resource lands and procedural Guidelines, will likely prove extremely Based on the Aquatic Conservation criteria to guide the development of beneficial to resident and anadromous Strategy and management guidelines for comprehensive plans are not mandatory fish by providing islands of functional the individual land allocations, Federal for the cities and counties. reserves in late seral (older) forest lands within the DPS’s range (27 The Washington Forest Practices Act condition with high water quality and percent of the land base) should be (WFPA) regulates timber management habitat complexity. Late-Successional managed in a manner that provides and related activities on most non- Reserves constitute 31.2 percent of the long-term improvement in aquatic Federal forest lands in the Washington Federal land allocations in the DPS’s habitat and limits short-term habitat portion of the DPS’s range (30 percent range. Managed Late-Successional Areas quality declines. These lands should of DPS’s range). The WFPA was are similar to Late-Successional provide significant contributions to the improved in 2001 to address water Reserves, but constitute less than one conservation of the coastal cutthroat quality concerns and conservation of percent of the Federal lands in the trout in the foreseeable future. These listed salmonids which will also DPS’s range. Management activities in lands typically lie in the upper portions contribute to coastal cutthroat trout both of these allocations may result in of the watersheds, above the areas conservation. The new rules set some latent impacts due to present generally used by the anadromous standards for timber harvest activities in baseline conditions (existing riparian portion of the population. and around riparian areas and unstable slopes, and for road use, construction, and upslope roads, past timber State Land Use Practices management activity), silviculture, road- and maintenance related to forest related impacts, and short-term impacts Washington management. These rules include regulations requiring increased riparian associated with restoration activities. The proposed rule concluded that the However, these impacts will be reduced buffer widths, reduced level of Washington Forest Practices Regulations management activities within the over time as Riparian Reserves and did ‘‘* * * not provide for properly forests mature. buffers, and an increase in the functioning riparian and instream percentage of the stream network Adaptive Management Areas are habitats,’’ including failure to address subject to these buffers. Under the new landscape units designated to encourage large woody debris recruitment, tree regulations, virtually all perennial the development and testing of retention to maintain stream band and streams will receive some level of technical and social approaches to channel integrity, and chronic and protection. Landowners will be required achieving desired ecological, economic, episodic inputs of coarse and fine to develop plans for ensuring that and social objectives. Activities may sediments (64 FR 16402). existing forest roads meet improved vary greatly, depending on the Washington’s Growth Management standards for fish passage, protection of individual management plans of these Act requires counties and cities in the unstable slopes, minimization of areas. Adaptive Management Areas State to designate natural resource lands sediment and runoff within 15 years. comprise seven percent of the Federal and to designate and protect critical These new rules represent a substantial land in the DPS’s range. Matrix lands areas (such as wetlands, fish and improvement over previous practices constitute 33.4 percent of the Federal wildlife habitat conservation areas, and should substantially reduce the land in the DPS’s range. This allocation frequently flooded areas, geologically adverse impacts of current and future focuses on providing for timber harvest hazardous areas, and aquifer recharge management activities to aquatic and and commodity resources and will have areas) consistent with overall State-level riparian systems supporting coastal the highest level of management guidelines and objectives. The cities and cutthroat trout compared to those that activities. Riparian Reserve and other counties are required to review and would have occurred under previous Aquatic Conservation Strategy implement development regulations standards. Revegetation and natural requirements do apply to Matrix lands. relative to these designations on a five- regeneration will result in the long-term Management activities on Matrix lands year cycle. Development regulations process of recovery of these areas from are expected to have somewhat greater include a zoning code, subdivision past forest management practices. impacts to aquatic systems than in ordinance, clearing and grading Standards for construction of new roads reserve land allocations due to the latent ordinance, critical areas ordinance and are also designed to meet water quality effects of past management (existing other regulations as necessary. Recent goals. riparian and upslope roads, past timber amendments to the Growth Management We and others have noted some management activity), ongoing Act require the use of ‘‘best available uncertainty about the effects of portions silvicultural activities, road-related science’’ and consideration of salmonid of this regulatory program, especially as impacts, and short-term impacts habitat in developing these regulations. related to non-fish bearing streams, road associated with restoration activities. However, recent reviews of Growth practices, and management of However, impacts to aquatic and Management Act implementation (State cumulative watershed impacts. A riparian systems will be reduced over of Washington 1998 and 1999) have comprehensive, long-term research, time as Riparian Reserves mature. Some indicated that protection of water monitoring, and adaptive management long-term indirect impacts from quality and aquatic and riparian program has been established to management activity may occur due to resources have not been prioritized in determine the validity of these and timber management and silvicultural local planning, many cities and counties other concerns, and to remedy any activities in upslope areas. Both short- have not yet adopted the required identified shortfalls of the WFPA in a and long-term road-related impacts may designations and regulations, and most timely fashion. This adaptive result from new and existing roads used local plans have not yet incorporated management includes a formal, to implement management direction. the best available data. Additionally, the structured process with the Service as a We expect that the level of road-related ability of the State to impose sanctions participant. Specific questions and impacts will be reduced over time on the cities and counties for failure to issues related to concerns raised during through reduced road densities and comply with the Growth Management the development of these rules have
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been identified and prioritized. Both of specific stream classes. This was small streams and lakes. Every local Federal and State agencies have funded designed to provide greater certainty government with shorelines is required the adaptive management monitoring that they would identify and conserve to adopt a local shoreline plan which and research to date, and support for areas with direct and indirect influence must be reviewed and approved by the continued funding remains high. on the streams and associated Department of Ecology for consistency Approximately 325,450 ha (804,202 salmonids, including cutthroat trout. with State-level Shoreline Management ac) (8.7 percent of the DPS’s range) Overall, the HCP should result in stream Act guidelines. Most of the local within the Washington portion of the protections similar to, or greater than, shoreline master programs in effect DPS are managed through the those required under Washington Forest today were originally adopted in the provisions of HCPs approved under Practices Regulations, and improved mid-to late-1970s and are based on section 10 of the Act. The most remediation or closure of problematic guidelines that do not reflect current significant of these include those forest roads (USDI 2000). Collectively, scientific understanding or the current developed by Simpson Timber (61,638 the HCP measures should minimize the emphasis on salmonid conservation. ha (152,311 ac)) (USFWS and NMFS adverse effects of future forest Recent efforts by the Washington 2000) and the WDNR (263,812 ha management activities on Simpson Department of Ecology to ensure that (651,891 ac)) (WDNR 1997). These HCPs Timberlands in the DPS. local plans were revised consistent with include riparian management standards Changes in the WFPA since the current science and priorities have been somewhat different from those normally original proposed rule to list the coastal subject to litigation and have not been applied under the WFPA. The WDNR cutthroat trout as threatened in the finalized. Thus, the extent to which the HCP was approved in 1997, though not southwestern Washington/Columbia Shoreline Management Act can be used fully addressed in the original listing River DPS (64 FR 16397) and provisions as a tool to support salmonid proposal, and is scheduled to remain in of two long-term forest HCPs completed conservation is uncertain. Under the effect through 2093. This HCP contains in the Washington portion of the DPS State Environmental Policy Act, an a Riparian Conservation Strategy should greatly reduce the risk of agency may deny permits or other designed to maintain the integrity and continued degradation of aquatic and approvals if the proposed rule would function of freshwater stream habitat riparian systems on forest lands in 30 likely result in significant adverse necessary for the health and persistence percent of the DPS’s range. The environmental impacts and if mitigation of aquatic species, including coastal proposed rule concluded that the WFPA measures would be insufficient to avoid cutthroat trout. The strategy includes did ‘‘* * * not provide for properly or reduce those impacts. The use of the stream, lake, and wetland buffers of functioning riparian and instream State Environmental Policy Act in this various widths managed under habitats,’’ with specific concerns about fashion by local and State agencies has standards that must ‘‘maintain or restore failure to address large woody debris been extremely limited and, as a result, salmonid habitat’’ (WDNR 1997). The recruitment, tree retention to maintain has not effectively served as a HCP also includes road maintenance stream band and channel integrity, and conservation mechanism or to address and network planning standards, chronic and episodic inputs of coarse the inadequacies of other regulatory protection of disturbance-sensitive sites, and fine sediments (64 FR 16402). Based programs (State of Washington 1999). and overall landscape-level forest on the new provisions addressing: (1) habitat condition standards. Timber harvest activities in and around Oregon Collectively, these HCP measures riparian areas and unstable slopes; (2) The proposed rule stated that the should minimize the adverse effects to road use, construction, and maintenance Oregon Forest Practices Act did not coastal cutthroat trout of future forest related to forest management; and (3) adequately protect salmonid habitat, management activities on WDNR lands increased riparian buffer widths, specifically including production and in the DPS’s range. However, even with reduced level of management activities introduction of large woody debris into the HCP in place, ‘‘adverse impacts to within the buffers and an increase in the medium, small, and non-fish bearing salmonid habitat will continue to occur percentage of the stream network streams; timber harvest and road because past forest management subject to these buffers, we no longer construction on unstable slopes subject practices have left a legacy of degraded conclude, as described in the proposed to mass wasting; and cumulative effects riparian ecosystems, deforested unstable rule (64 FR 16402), that the Washington (64 FR 16403). slopes, and a poorly planned and Forest Practices Regulations do not Oregon was the first State to adopt maintained road network’’ (WDNR provide for the conservation of coastal comprehensive land-use planning laws 1997). While the HCP will address some cutthroat trout and their habitat. While and these remain among the strongest in of these legacy threats, implementation some degradation of aquatic and the nation. Under this regulatory of the full suite of necessary corrective riparian systems will continue as a program, the State’s 36 counties and 240 and restorative actions on WDNR land legacy of past management activities, municipalities were required to develop is subject to the WFPA and other State and some elements of the riparian/ comprehensive plans that addressed programs and policies. aquatic systems are naturally slow to applicable statewide planning goals, The Simpson Timberlands HCP was recover, these conservation efforts including several related to approved in 2000 and is scheduled to should significantly improve the long- maintenance of natural resource lands remain in effect through 2050. It term conditions for coastal cutthroat (agriculture and forest), critical fish and contains elements similar to those in the trout in a significant portion of the wildlife habitats, and protection of WDNR HCP, including a riparian DPS’s range. water quality and supply. The planning conservation strategy; buffers for Within the Washington portion of the goals themselves do not regulate streams, lakes, wetlands, and other DPS, there are two additional regulatory individual land development decisions, disturbance-sensitive sites; and road programs that apply to all of the non- but are implemented through county maintenance and network planning federal land use activities discussed and local comprehensive plans, standards. The HCP is unique in that above, the Shoreline Management Act ordinances, and standards which, in buffers and management standards for and State Environmental Policy Act. turn, regulate individual land use and riparian resources are tailored to the The Shoreline Management Act applies development decisions. The geomorphology and hydrologic function statewide to all water bodies, except for comprehensive plans typically involve
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tradeoffs to balance numerous goals and as described in the proposed rule (64 FR amount needed to complete the project; objectives, some of which may conflict. 16403). However, as the OFPA affects a and replacement, re-establishment and Most local plans now in effect have not relatively small portion of the DPS (8 replanting riparian vegetation is an prioritized goals related to water quality percent of the land base), it is not likely essential permit condition. As with and aquatic habitat protection, and have to result in the DPS of coastal cutthroat CWA permits, removal-fill permits are not been based on the best currently trout becoming endangered in the also reviewed by the Department of available data; therefore, they may not foreseeable future. Environmental Quality for consistency eliminate adverse effects to the riparian with State water quality standards. Dredge, Fill, and Inwater Construction and aquatic environment and provide Protection and restoration of salmonid Programs protection for some areas of cutthroat habitat has recently received increased habitat (State of Oregon 2000a). The proposed rule described the emphasis in administration of this law. The Oregon Forest Practices Act potential protection of aquatic systems In Washington, similar activities are (OFPA) regulates timber management under section 404 of the CWA, though regulated under the State Hydraulics and related activities on most non- there was concern for the lack of a Code, which is administered by the Federal forest lands in the Oregon specific methodology to address WDFW through its Hydraulic Project portion of the DPS (8 percent of DPS’s cumulative effects and additive effects Approval program. Hydraulic Project range). The OFPA sets standards for of continued development (64 FR Approval program standards and timber harvest activities in and around 16403). Dredge, fill, and inwater guidelines are specifically focused on riparian areas, and was improved in construction programs were not listed as the protection of fish life and aquatic 1995 to better protect aquatic resources a specific threat to the DPS (64 FR habitats, and are subject to review every and address water quality concerns. 16407), though they may have five years to ensure consistency with Additional improvements were recently contributed to some past habitat loss, these objectives. recommended to better support particularly in the estuaries and large Based on the implementation of watershed health and conservation of rivers. current laws and regulatory programs, listed salmonids (State of Oregon A wide variety of instream and near- we conclude that the regulation of 2000b). While some of these stream activities are regulated under dredge, fill, and in-water construction recommendations may be implemented section 404 of the CWA and section 10 activities through the section 404 and as regulations through the OFPA in the of the Rivers and Harbors Act of 1899, section 10 permit processes, and future, others will likely be which are administered by the U.S. through State programs, will provide implemented voluntarily and through Army Corps of Engineers (COE). some protection and support of aquatic various incentive-based programs. Even Examples include wetland fills; channel resources, though they may not fully considering possible near-term dredging; bank stabilization; pipeline remove the risk of some losses to improvements, there is substantial trenches; road and bridge construction; cumulative effects from small concern about whether the types and survey activities; outfall construction; individual projects. The remaining risks levels of management activities allowed and boat ramps, pilings and other from cumulative effects are likely to be within and adjacent to riparian zones structures. Section 404 of the CWA small in the short term, and we do not under the regulatory component of the requires that the COE not permit such anticipate that the cumulative effects of OFPA will adequately support riparian activities if they ‘‘cause or contribute to these small projects will reach a level at processes and conditions crucial to significant degradation of the waters of which they would be likely to result in salmonid habitat. Specifically, there is the United States.’’ The States also play the DPS of coastal cutthroat trout concern for how well current OFPA a role in CWA implementation by becoming endangered in the foreseeable regulations address tree retention to reviewing and conditioning proposed future. Dredge, fill, and inwater maintain stream bank integrity and section 404 permits relative to State construction programs were not channel networks within flood plains; water quality standards and State identified in the proposed rule as a chronic and episodic inputs of coarse coastal zone management policies. threat to this DPS (64 FR 16407) and are and fine sediment processes; and the These joint State/Federal CWA not considered a significant threat at recruitment of large woody debris into determinations focus primarily on water this time. the aquatic systems, all of which are quality and pollution. COE guidelines Water Quality Programs critical to maintaining functioning do lack a specific methodology for habitat for all life stages of cutthroat assessing cumulative impacts in the The proposed rule stated that ‘‘*** trout. Much of the concern focuses on decision-making process, or for implementation [of the Federal CWA] management standards for medium, minimizing and mitigating the additive has not been effective in adequately small, and non-fish bearing streams. The effects of the continued development of protecting fishery resources, particularly OFPA does not adequately manage waterfront, riverine, coastal, and with respect to non-point sources of timber harvest and road construction on wetland properties. pollution’’(64 FR 16403), though this sensitive, unstable slopes subject to Many of the activities regulated under was not listed as a specific threat to the mass wasting, and the lack of the CWA are also controlled by State- DPS (64 FR 16407). The proposed rule consideration for cumulative effects is level regulatory programs. In Oregon, did describe the long-term benefits of of concern, especially in light of current work which may modify the bed or developing Total Maximum Daily Loads harvest rotation schedules banks of rivers, lakes, streams, estuaries (TMDLs) and the ability of these to (approximately 50 years). and wetlands of the State must receive protect cutthroat trout in the long term, While potential changes are on the a permit under the Removal-Fill Law though they would be difficult to horizon, we are still concerned that the administered by the Division of State develop in the short term and their OFPA may not adequately provide for Lands. Permits are conditioned to efficacy in protecting salmonid habitat large woody debris input into medium, reduce adverse impacts to water quality would be unknown for years (64 FR small, and non-fish bearing streams; and aquatic resources or to mitigate 16403). address timber harvest and road those impacts. A standard condition Under section 303(c) of the CWA, construction on unstable slopes subject stipulates that riparian vegetation States are required to adopt water to mass wasting; and cumulative effects, removal be limited to the minimum quality standards to restore and
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maintain the chemical, physical and percent saturation of the water column hatchery introductions may biological integrity of the nation’s or intergravel dissolved oxygen criterion significantly reduce the production and waters. As part of this process, the for a given stream reach or sub-basin, or survival of native, naturally-spawned States develop standards for TMDLs of in natural lakes. In addition to revising cutthroat trout’’ (64 FR 16403). The pollutants relative to particular water numeric standards, Oregon incorporated proposed rule described potential quality standards. TMDLs offer a language to address water bodies effects of introduction of rainbow/ method for quantitatively assessing exceeding the relevant numeric steelhead trout outside their historic environmental problems in a watershed temperature criterion and included on range where cutthroat trout had not and identifying pollution reductions the State’s 303(d) list. Oregon rules evolved in concert with these species needed to protect drinking water, require development and (64 FR 16403) and discussed the past aquatic life, recreation, and other uses of implementation of a surface water loss of interior strains of cutthroat trout rivers, lakes, and streams. TMDLs temperature management plan which to hybridization due to these hatchery address pollution sources, including describes the best management releases. However, this is not true for such point sources as sewage or practices, measures, and/or control the DPS or the coastal subspecies in industrial plant discharges, and such technologies which will be used to general. This subspecies has evolved non-point discharges as runoff from reverse the warming trend of the basin, with rainbow/steelhead trout and has roads, farm fields, and forests. The CWA watershed, or stream segment identified not suffered the impacts from hatchery gives State governments the primary as water quality limited for temperature. introductions described for interior responsibility for establishing TMDLs. Washington has submitted, and is subspecies (see Hybridization section Section 303(d) of the CWA requires implementing, a TMDL schedule for more information). States to identify surface waters that do running through 2013. As of May 2000, Specific to this DPS, the proposed not meet State water quality standards. TMDLs had been established for rule stated that ‘‘[n]egative effects of The Oregon Department of approximately 249 stream/water body hatchery coastal cutthroat trout may be Environmental Quality (ODEQ) segments and additional TMDLs are contributing to the risks facing naturally submitted revised water quality under development. A memorandum of spawned coastal cutthroat trout in this standards to the U.S. Environmental agreement between EPA and the [DPS]’’ (64 FR 16407). They noted that Protection Agency (EPA) for review and Washington Department of Ecology lower Columbia River tributaries were approval on July 11, 1996. EPA stipulates that time frames for meeting the only streams receiving hatchery- considered approval of Oregon’s water water quality standards, a plan to origin coastal cutthroat trout, and that quality standards for dissolved oxygen, implement control actions, and a the number of trout released has been temperature, and pH as submitted, with monitoring plan will be developed by substantially curtailed. The proposed the exception of the temperature 2003. rule stated that ‘‘[t]he ultimate effects of criterion for the Willamette River from Inadequacy of water quality hatchery fish depend on the relative size the river’s mouth to river mile 50. regulatory mechanisms was not of hatchery and naturally spawned Consideration of the temperature identified in the proposed rule as a populations, the spatial and temporal criterion for this reach of the Willamette specific threat to this DPS (64 FR 16407) overlap of hatchery and naturally River was deferred until a final action and is not considered a significant spawned fish throughout their life (approval of a revised State criterion or threat at this time. The current cycles and the actual extent to which a new criterion promulgated by EPA) is standards established by Oregon, and hatchery fish spawn naturally and proposed by EPA. ODEQ has recently the ongoing efforts by both States, to interbreed with naturally produced finalized the 1998 303(d) list and establish TMDLs and rectify water fish’’ (64 FR 16407), as well as the level submitted to EPA a schedule for quality problems should result in of incidental harvest of naturally completing TMDLs by the year 2007. significant improvements in habitat spawned fish in fisheries targeting Unless specifically allowed under an conditions for cutthroat trout in the long hatchery salmonids. The proposed rule ODEQ-approved surface water term. However, until TMDLs are provided no estimate or evaluation of temperature management plan, no finalized and remediation efforts these factors. measurable surface water temperature implemented for a period of time, In an attempt to mitigate the loss of increase resulting from anthropogenic adverse water quality may continue in habitat, hatchery programs were activities is allowed in the following some portions of the DPS’s range. The implemented by the States throughout cases: (1) In a basin for which salmonid ability of these TMDLs to protect the range of coastal cutthroat trout. fish rearing is a designated beneficial cutthroat trout should be significant in Until recently, the transfer of hatchery use, and in which surface water the long term, and significant increases stocks of coastal cutthroat trout between temperatures exceed 17.8 degrees C (64 in water quality problems should not distant watersheds and facilities was a degrees F); (2) in waters and periods of occur in the interim. Water quality common management practice in the year determined by the ODEQ to regulations and programs should reduce Oregon and Washington watersheds support native salmonid spawning, egg the risk of continued habitat (Crawford 1979, Kostow 1995). Growing incubation, and fry emergence from the degradation, and water quality concerns concern about the genetic and ecological egg and from the gravels in a basin are not likely to increase to a level at consequences of this practice prompted which exceeds 12.8 degrees C (55.0 which they are likely to result in the management agencies to institute degrees F); (3) in waters determined by DPS of coastal cutthroat trout becoming policies to reduce the exchange of the ODEQ to be ecologically significant endangered in the foreseeable future. coastal cutthroat trout stocks among cold-water refugia; (4) in stream watersheds, primarily by terminating segments containing Federally-listed Hatchery Management releases of fish in all but a few locations. threatened or endangered species if the The proposed rule stated that ‘‘*** Appendix A–1 of the Status Review increase would impair the biological the impact of [hatchery] programs on (Johnson et al. 1999) contains detailed integrity of the threatened or native, naturally spawned stocks are not records of the stocking history of the endangered population; and (5) in well understood,’’ but noted that DPS’s range. Only the Cowlitz River Oregon waters when the dissolved ‘‘[c]ompetition, genetic introgression, Hatchery continues to produce and oxygen levels are within 0.5 ppm or 10 and disease transmission resulting from release coastal cutthroat trout within the
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DPS, and this at substantially reduced fish are likely to be concentrated in the considered a significant threat at this levels. This hatchery produces anadromous-accessible areas. The time. anadromous cutthroat trout in a system resident portion of the population in the Fire events in Pacific northwest with several barrier dams that have upper portions of the watersheds is not coastal zones are generally of low reduced natural access to historic likely to be affected by these hatchery frequency (more than 200 years between freshwater habitat for anadromous releases. However, information disturbances) and high severity (e.g., a cutthroat trout. demonstrating effects from coho releases high proportion of the trees are killed) There is no evidence that is limited within the DPS’s range, and (Agee 1993). Although fires can be large competition, genetic introgression, or the extent to which hatchery and intense, unburned patches and disease transmission from hatchery management affects the DPS of coastal refugia often persist. These refugia introductions which were described in cutthroat as a whole is unknown. We provide a source of fish to recolonize the proposed rule as the potential have no evidence that coho releases in other areas once the habitat recovers. consequences of the release of hatchery the DPS are producing competition The effects of fire are likely to be raised cutthroat trout (64 FR 16403) above natural levels or represent a episodic, dispersed through time and have significantly reduced the significant risk to the DPS. Competition space. Coastal cutthroat trout appear to production and survival of native, from hatchery releases of coho salmon be well adapted to such natural pulsed naturally spawned cutthroat trout in the was not identified as a specific threat to disturbances. This process historically DPS. Coastal cutthroat trout production the DPS (64 FR 16407) and is still not may have posed little threat to most has been reduced to a single hatchery considered a significant threat to the local and regional populations. and there is no information at this time DPS at this time. Coastal cutthroat trout are well to indicate that the limited ongoing distributed within the all three major coastal cutthroat hatchery releases have E. Other Natural or Manmade Factors drainage areas within the DPS’s range. an adverse effect on the DPS of coastal Affecting Its Continued Existence This wide distribution reduces the cutthroat trout. Therefore, we conclude Climate and Catastrophic Natural Events likelihood that catastrophic natural that release of hatchery coastal cutthroat events would severely deplete The proposed rule stated that trout in this DPS does not represent a populations throughout the DPS’s range. ‘‘[p]ersistent drought conditions have significant risk to naturally spawning Stochastic events such as fire, flood, and reduced the already limited spawning, cutthroat trout in this DPS. volcanic eruptions, are likely to impact The proposed rule also described the rearing, and migration habitat’’ (64 FR coastal cutthroat trout at a watershed or potential ‘‘* * * negative consequences 16403), though this was not listed as a sub-basin scale and would not affect all of interactions between coho salmon fry specific threat to the DPS (64 FR 16407). portions of the DPS concurrently. released from hatcheries and coastal The proposed rule also stated that Therefore, even if portions of the DPS cutthroat trout’’ (64 FR 16403), though climate conditions appeared to have are depressed, the risk of a catastrophic this was not identified as a specific resulted in decreased ocean event severely impacting the DPS as a threat to the DPS (64 FR 16407). Coho productivity, which might have whole is very limited and is not fry can compete with cutthroat trout for compounded degraded freshwater anticipated to significantly threaten feeding and rearing habitat. Release of habitat (64 FR 16403). Juvenile and coastal cutthroat trout in the foreseeable hatchery coho and steelhead may have adult anadromous cutthroat trout use future. adverse effects to local cutthroat trout tidal rivers and low-gradient estuarine Hybridization populations, especially if they are sloughs and tributaries during spawning stocked in headwater tributaries above and feeding migrations (Kostow 1995). The proposed rule stated that traditional coho or steelhead habitat. These nearshore areas can be influenced ‘‘[h]ybridization between coastal Juvenile coho are dominant over by ocean productivity. The El Nin˜ o- cutthroat trout and Oncorhynchus juvenile cutthroat trout (Chapman 1962, Southern Oscillation cycle (commonly mykiss may prose serious risks for this Glova 1987, Rosenau and McPhail 1987, known as El Nino), causes periodic species’’ (64 FR 16403), though it was Trotter et al. 1993, Johnson et al. 1999) declines in ocean productivity that not listed as a threat to the DPS (64 FR and coastal cutthroat trout are often could affect the survival and 16407). The proposed rule described the displaced to less desirable habitats in productivity of anadromous coastal potential adverse effects of the the presence of other native salmonids cutthroat trout during low periods. widespread release of hatchery rainbow (Hartman and Gill 1968, Griffith 1988). During periods of warm ocean trout throughout the range of interior Coho and steelhead are natural conditions, freshwater habitat cutthroat trout; resulting hybridization competitors of cutthroat trout and conditions may also be affected due to between the species could pose serious cutthroat trout are likely adapted to reduced rainfall with associated impacts risks for cutthroat trout (64 FR 16403). some levels of competition from these on streamflows and increasing river However, this is specific to interior species. The effect of coho and temperatures (Greenland 1998). These subspecies that did not evolve in steelhead stocking is dependent on the types of climate changes are natural, contact with rainbow/steelhead trout. location and magnitude of the releases. long-term cycles, and coastal cutthroat The coastal cutthroat trout differs from Releases in areas outside of historic trout are likely adapted to this variation. these interior subspecies as they coho habitat or in numbers that greatly Therefore, these climate cycles would evolved with the presence of rainbow/ exceed natural levels could have not be expected to significantly threaten steelhead trout and therefore have negative effects on cutthroat trout in the coastal cutthroat trout in the foreseeable developed mechanisms to limit area of the release. Effects are likely to future. There is no evidence that hybridization. be limited to the stocked area and drought or other climate cycles have Hybridization of coastal cutthroat downstream migration habitats. significantly reduced spawning, rearing, trout among subspecies and with other Hatchery coho and steelhead releases or migration habitat for the DPS. species of trout, particularly rainbow are likely to have a proportionally Climate change, specifically persistent trout, is known to occur, and has long greater effect on the anadromous portion drought, was not identified in the been implicated in the decline of other of the coastal cutthroat trout population proposed rule as a specific threat to this cutthroat subspecies (Busack and Gall because releases of these anadromous DPS (64 FR 16407) and is not 1981, Young 1995, Willers 1991). Unlike
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interior subspecies of cutthroat trout steelhead trout in tributaries of the because specific proposals are subject to that evolved in the absence of other Columbia River and found hybridization ongoing legal challenges; (2) the salmonids, coastal cutthroat trout to be common, though at low levels in ecological effects of practices and evolved in sympatry with a suite of most samples. Only a few isolated projects that are implemented may not other Pacific salmonids, their range locations showed high levels of be realized for years or even decades; closely overlapping with steelhead in hybridization. and (3) for some suites of activities, coastal drainages of western North Although the data on hybridization there is no readily available information America. Behnke (1992) concluded that between coastal cutthroat trout and regarding the nature or distribution of cutthroat and rainbow trout shared a rainbow/steelhead trout are limited, on-ground practices or projects. common ancestor as recently as two indications are that hybridization has The States’ overall recovery million years ago. As a result, it is likely likely been occurring for at least several frameworks are contained within the that the long evolutionary association of decades at low levels where these two Oregon Plan for Salmon and Watersheds rainbow and coastal cutthroat trout species co-exist. Much scientific (Oregon Plan) and the Washington would have led to isolating mechanisms uncertainty currently surrounds the Statewide Strategy to Recover Salmon: that would minimize the occurrence of causes of hybridization and its ‘‘Extinction is not an Option’’ hybridization. evolutionary consequences. In view of (Washington Strategy). Both of these Recent information (Campton 1981, the limited nature of hybridization in frameworks emphasize improved Campton and Utter 1985, Hawkins and the DPS and the natural co-occurrence implementation and enforcement of Quinn 1996, Williams et al. 1997, of these species, hybridization between existing regulations, greater Johnson et al. 1999) suggests that cutthroat trout and rainbow/steelhead coordination and prioritization of hybridization of coastal cutthroat trout trout is not currently considered a conservation projects, and voluntary with steelhead may be more prevalent significant threat to the DPS of coastal and incentive-based measures to in the Pacific Northwest than previously cutthroat trout. Low levels of provide greater site-specific protection. believed. Hybridization appears to occur hybridization may represent natural Based on recent implementation of in a mosaic pattern at naturally low interaction between rainbow/steelhead these recovery frameworks, there will levels in areas where coastal cutthroat trout and coastal cutthroat trout. likely be some level of widespread effort trout and steelhead spawn in the same Populations with high levels of to identify and correct existing fish streams, but the conditions triggering hybridization are few and isolated. passage problems (and to prevent future this apparent interbreeding are Hybridization was not identified in the obstacles), and to restore previously unknown. Hubbs (1955) and Campton proposed rule as a specific threat in the degraded riparian and aquatic habitats (1987) suggest that anthropogenic DPS, and is not considered a significant on a site-specific basis. The Oregon Plan factors can cause or stimulate natural threat at this time. and the Washington Strategy also hybridization where it previously was encourage or otherwise support a Foreseeable Conservation Measures rare or uncommon. However, biologists handful of larger, more comprehensive, studying this issue cannot determine Numerous conservation efforts related restoration-oriented conservation whether the observed occurrences of to maintenance and protection of projects within the DPS’s range, such as hybridization result from anthropogenic threatened salmonids, riparian and the multi-stakeholder Sandy River Basin factors (e.g., stocking of hatchery-origin aquatic habitats, and overall watershed Agreement in Oregon. These projects steelhead, habitat modifications, etc.) or health are underway in Oregon and will likely continue under the auspices simply reflect a natural evolutionary Washington. These are being driven by of scientifically credible watershed process that has been ongoing for the overall salmonid recovery assessments that minimize the hundreds, perhaps thousands of years. frameworks in place in the States and by likelihood of inappropriate ‘‘fixes’’ and The most recent hybridization studies specific growth management and undesirable adverse effects. Such within southwest Washington and the Endangered Species Act considerations. restoration-oriented projects have the Columbia River indicate that Efforts range from broad scale potential to substantially improve hybridization occurs in scattered application undertaken by State or conditions for this species in many locations, but generally at low levels regional authorities to site-specific watersheds in the DPS’s range. throughout the range of coastal projects implemented by individual However, such improvements may not cutthroat. In 2000 and 2001, U.S. landowners or local action groups such be sufficient, and in many cases may be Geological Service-Biological Resources as watershed councils. These are negated, unless the broader suite of Division investigators analyzed a total of generally non-regulatory in nature, land-use activities occurring within the 230 coastal cutthroat tissue samples relying on incentives or voluntary watersheds are modified to reduce from coastal cutthroat trout captured compliance, or are still in development. future adverse effects. within southwest Washington and the Therefore, while they may contribute to The Washington Strategy targets a Columbia River (Carl Ostberg, U.S. conservation of coastal cutthroat trout, number of specific land-use regulatory Geologic Survey, pers. comm., 2001). we have not assumed any specific programs for improvement, and in Fourteen streams were sampled contribution in the listing general supports consideration of including six streams within the Grays determination. improved regulatory standards, either Harbor drainage, three streams in the Several factors make it difficult to through formal rule-making or through Willapa Bay drainage, and one stream predict the extent to which these efforts stakeholder negotiation processes. In each from the Lower Columbia, Upper will result in improved implementation addition to the previously mentioned Cowlitz, Kalama, East Fork Lewis, and of the non-federal land use practices Hydraulic Project Approval program Upper Washougal rivers. Only 1 of the described above, or redress problems revisions, examples include efforts to 14 streams sampled contained hybrids associated with past activities, strengthen the Shoreline Management (the Green Fork of the East Fork Lewis including: (1) Many specific regulatory Act and State water policies, and to River (4 of 25 individuals) (USFWS changes and on-ground projects have develop more consistent and reliable 2001). Spruell et al. (1998) examined not yet been implemented either standards for agricultural practices and incidence of hybridization between because related negotiation and rule- pesticide use. These efforts may lead to coastal cutthroat trout and rainbow/ making are in the formative stages, or at least some improvement in statewide
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standards for agricultural practices and measures under consideration. For sizes are comparable to those of healthy urban and rural development, and example, under the City of Portland’s populations in other areas; (2) new redress some of the previously noted ‘‘Healthy Portland Streams’’ program information and analyses calling into problems with these practices. and Metro’s Statewide Planning Goal 5 question past interpretation of the size In limited portions of the DPS’s range program, new rules are being developed of the anadromous portion of the in both States, regional and local efforts to protect important streamside areas population in the Columbia River and to address growth management issues and vulnerable upslope habitats from indicating higher numbers than and Federal Endangered Species Act inappropriate development and to previously described; (3) new data and issues for other listed species may facilitate restoration of some previously analyses no longer showing declining improve programmatic standards or degraded areas. Similarly, the Portland adult populations in the Grays Harbor landowner-specific practices beyond Water Bureau’s Bull Run Watershed tributaries; (4) new analyses that call those likely under the broad State Management program is close to into question the past interpretation of recovery frameworks. In the Washington finalizing proposals to more trend data, and therefore the magnitude portion of the DPS’s range, several appropriately manage water quality, of the trend in the anadromous portion forestry and agricultural planning efforts flow, temperature, and other impacts of the population in the Columbia River; are underway, including the Cowlitz associated with the City’s water supply (5) new information about the Tree Farm HCP, Tagshinny Safe-Harbor and distribution operations. In these production of anadromous progeny by and Candidate Conservation Agreement, programs, the measures being above-barrier cutthroat trout; and (6) Scatter Creek HCP, and Lewis County considered represent improvements two large-scale Habitat Conservation Family Forest Conservation project. In over previous practices, and could be an Plans (HCPs) and significant changes in addition, Clark County has initiated an important contribution to ensuring that Washington Forest Practices Regulations Endangered Species Act Response the activities of local governments and substantially reducing threats to aquatic Program that will address water quality, their constituents in the Portland and riparian habitat on forest lands in aquatic and riparian habitat protection, metropolitan region are consistent with Washington. and conservation of listed salmonids for the conservation of this species. Once The proposed rule stated that ‘‘NMFS a number of development and urban fully in force, these programs may also remains concerned about the extremely land-use activities under the county’s contribute significantly to the low population size of anadromous purview. Ongoing and future conservation of other sensitive species coastal cutthroat trout in lower components of this effort include and help preclude the need to list them Columbia River streams, indicated by assessments of biological resources and as threatened or endangered. low incidental catch of coastal cutthroat potential impacts of various activities; Continuation and successful trout in salmon and steelhead review and revision of development implementation of conservation efforts recreational fisheries, and by low trap codes, ordinances, and operating such as those mentioned above, and counts in a number of tributaries procedures; and prioritization and expansion of these efforts to additional throughout the region,’’ and that ‘‘*** implementation of restoration and activities and areas will be necessary to numbers of adults returning to traps in acquisition projects. fully address concerns associated with the lower Columbia River tributaries In the Oregon portion of the DPS’s previous management legacies and with were consistently below 10 fish in most range, a large number of municipalities the existing regulatory framework. Such streams over each of the past 6 years’’ and counties in the Portland efforts will be a critical determinant of (64 FR 16407). Despite extensive metropolitan area have initiated efforts whether current cutthroat trout habitats changes to aquatic and riparian to revise comprehensive plans and and populations are maintained and condition in many portions of the DPS’s address Endangered Species Act issues improved in the long run to an extent range, coastal cutthroat trout remain in a fashion similar to those described that supports long-term conservation. extant throughout their historic habitat for Clark County, Washington. Primary As such, we will continue to monitor and populations in a large portion of the examples include Clackamas County, and review the progress of these efforts DPS are found in densities comparable the City of Lake Oswego, City of very carefully to determine their impact to populations considered to be healthy- Gresham, the Metro regional on the future status of the species. sized. The anadromous portion of the government, and the City of Portland. However, because these are non- DPS is likely depressed from historic These efforts are in various stages of regulatory programs or are still in levels, though it also appears to remain development and are likely to evolve development, we did not base our final extant in all accessible portions of the incrementally (i.e., sets of measures to listing determination on the assumption DPS’s range. There is little specific address road management followed by that these programs would be information indicating the actual size of measures to address stormwater implemented. the anadromous portion of the management or streamside population or that these populations are Finding and Withdrawal development, etc.) over the next several extremely low. Coastal cutthroat trout as years. As described in the proposed rule (64 a whole, in the Washington portion of Notwithstanding the formative and FR 16407), some portions of the the DPS, remain at comparable densities uncertain nature of most of these local proposed coastal cutthroat trout DPS are to other areas considered to have level planning efforts, we are likely at lower-than-historic levels and healthy-sized populations. There is no encouraged by the efforts. Most of the are probably still declining. However, information that leads us to conclude sponsoring entities have continued to new information and recent changes in that coastal cutthroat trout populations commit staff and financial resources to regulations have changed our in a significant portion of the DPS’s the projects despite recent budget conclusion about the risk that the range are at levels that would lead to limitations. The issues and approaches species may become endangered in the risk of extinction due to small comprising many of the projects appear foreseeable future. This withdrawal is population size in the foreseeable consistent with conservation objectives based on: (1) New data indicating that future. for cutthroat trout. Finally, the handful coastal cutthroat trout are more The proposed rule stated that of projects that are more evolved show abundant in southwest Washington than ‘‘[t]rends in anadromous adults and promise in terms of some of the previously thought and that population outmigrating smolts in the southwestern
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Washington portion of this [DPS] are all ‘‘The significance of this reduction in Some areas have begun to recover from declining’’ (64 FR 16407) and that life-history diversity to both the past forest practices and new ‘‘[r]eturns of both naturally and integrity and the likelihood of this regulations are in place that reduce the hatchery produced anadromous coastal [DPS’s] long-term persistence is a major risk of continued adverse impacts to cutthroat trout in almost all lower concern to NMFS’’ (64 FR 16407). much of the DPS. Conditions in many Columbia River streams have declined WDFW (2001) provided additional parts of the DPS’s range are expected to markedly over the last 10 to 15 years,’’ information demonstrating the continue to improve over time and with the only increase in the Toutle capability of resident coastal cutthroat many of the most damaging past River (64 FR 16407). The most recent trout to produce anadromous progeny practices (e.g., splash dams, large-scale data indicate variable population trends after long isolation (40 years), suggesting wetland conversion) are not expected to throughout the DPS and do not support that even if the anadromous portion of occur in the future due to current laws the conclusion that trends of the population continues to experience and regulations. Despite the long term, anadromous adults and outmigrating low number and declines, smolts will be widespread impacts to aquatic and smolts in the DPS are all declining, as produced that can supplement the riparian conditions, coastal cutthroat described in the proposed rule. There is anadromous portion of the population trout have survived in these areas for no evidence that the adult portion of the and take advantage of any improvement many generations and remain at population in the Grays Harbor in anadromous habitat. There is no densities comparable to healthy-sized tributaries is declining over the long evidence at this time that coastal populations in large portions of the term, and some indication that the adult cutthroat trout pursuing the DPS’s range. Therefore, there is no portion of the population may be stable anadromous life history strategy are significant present or identifiable threat or increasing. Therefore, we no longer segregated from the remainder of the of curtailment of the range of the DPS. conclude that trends in anadromous population. In fact, studies show that Given that coastal cutthroat trout have adults and outmigrating smolts in individuals above barriers and below survived the long-term and widespread southwest Washington are all declining barriers with access to the sea are more impacts of these past practices on as described in the proposed rule. There closely related within a drainage than aquatic and riparian conditions in large are indications of declines in the adult are individuals from different drainages portions of the DPS’s range for many portion of the population in the (Behnke 1997, Johnson et al. 1999). This generations, and apparently remain well Columbia River tributaries, though the further supports the conclusion that distributed at densities comparable to rate of the decline is uncertain due to anadromous and non-anadromous healthy-sized populations elsewhere, concerns over the reliability of the individuals are not substantially the condition of aquatic and riparian analyses and potential biases in the data separate subpopulations. Therefore, systems is not likely to result in sets. Therefore, we no longer conclude based on the evidence that freshwater endangerment of the DPS of coastal that returns of anadromous cutthroat and isolated portions of the population cutthroat trout in the foreseeable future. trout in ‘‘almost all’’ lower Columbia are capable of producing anadromous Therefore, we no longer conclude that River streams have declined markedly migrants, we now conclude that past habitat degradation has led to over the last 10 to 15 years as described freshwater and isolated portions of the severe declines in the population of in the proposed rule (64 FR 16407). coastal cutthroat trout population are coastal cutthroat trout in the There is little information on population contributing to the anadromous portion southwestern Washington/Columbia trends for the resident or freshwater of the population and mitigating risks to River DPS. portion of the population in the DPS, anadromous portion of the population All Federal lands within the DPS’s though populations in the Washington to some degree. The ability for non- range (27 percent) are managed in a portion of the DPS appear to remain at anadromous cutthroat trout to produce manner conducive to the conservation levels comparable to healthy-sized anadromous progeny reduces the risk of of coastal cutthroat trout. The proposed populations, indicating that large-scale loss of the anadromous life history rule concluded that the Washington declines have not occurred at a strategy in the foreseeable future. Forest Practices Regulations did ‘‘*** landscape level. Based on these data, we Specific to the southwestern not provide for properly functioning do not find that population trends Washington/Columbia River DPS, the riparian and instream habitats,’’ indicate that coastal cutthroat trout are proposed rule stated that ‘‘* * * severe including failure to address large woody likely to be extirpated from any habitat degradation throughout the debris recruitment, tree retention to significant portion of their range in the lower Columbia River has contributed to maintain stream band and channel foreseeable future. dramatic declines in anadromous integrity, and chronic and episodic The degree to which the reductions in coastal cutthroat trout populations and inputs of coarse and fine sediments (64 the anadromous portion of the coastal two near extinctions of anadromous FR 16402). The Washington Forest cutthroat trout population represent a runs in the Hood and Sandy Rivers’ (64 Practices Regulations were updated risk to the population in the DPS as a FR 16407). The proposed rule also since the proposed rule. These new whole depends, in part, on the extent to stated that ‘‘[h]abitat degradation in regulations include improvements to: which various coastal cutthroat trout stream reaches accessible to (1) Timber harvest activities in and life history strategies are genetically anadromous coastal cutthroat trout, and around riparian areas and unstable versus environmentally controlled. The poor ocean and estuary conditions, slopes; (2) road use, construction, and proposed rule stated that ‘‘*** a likely combined to severely deplete this maintenance related to forest significant risk factor for coastal life-history form throughout the lower management; and (3) increased riparian cutthroat trout in this [DPS] was a Columbia River Basin’’ (64 FR 16407). buffer widths, reduced level of reduction of life-history diversity’’ and While aquatic and riparian systems have management activities within the that ‘‘[r]educed abundance in been heavily altered in some areas, the buffers, and an increase in the anadromous fish will tend to restrict latest information does not support the percentage of the stream network connectivity of populations in different conclusion that this has severely subject to these buffers. Given these watersheds, which can increase genetic affected the habitat of the coastal improvements, we no longer conclude and demographic risk’’ (64 FR 16407). cutthroat trout in this DPS as a whole. that the Washington Forest Practices
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Regulations do not provide for the 16407), as well as the level of incidental While regulation of dredge, fill, and conservation of coastal cutthroat trout harvest of naturally spawned fish in in-water construction activities through and their habitat. The lands affected by fisheries targeting hatchery salmonids. the section 404 permit process in the the WFPA and two long-term forest The proposed rule provided no estimate DPS’s range may not eliminate all HCPs completed in the Washington or evaluation of these factors. Coastal adverse effects to the riparian and portion of the DPS’s range should cutthroat trout production has been aquatic environment, we conclude that greatly reduce the risk of continued reduced to a single hatchery. Analysis of it should provide significant protection cutthroat habitat degradation and loss in the remaining hatchery stock history for aquatic resources, and the ability for an additional 30 percent of the DPS’s and genetics indicate that the hatchery us to track continuing effects through range. Therefore, 57 percent of the stock is similar to the naturally spawned the review of permit applications. The DPS’s range is under management and stock. There is no information at this remaining risks from cumulative effects regulations that should greatly reduce time to indicate that the limited ongoing are likely to be small in the short term the rate of future habitat impacts and coastal cutthroat hatchery releases have and we do not anticipate that the provide for long-term improvement of an adverse effect on the DPS of coastal cumulative effects of these small coastal cutthroat trout habitat in the cutthroat trout. Therefore, we conclude projects will reach a level at which they DPS’s range. Collectively, remnant high that the release of hatchery coastal would be likely to result in the DPS of quality habitat, ongoing forest recovery, cutthroat trout in this DPS does not coastal cutthroat trout becoming active efforts to identify and correct represent a significant risk to naturally endangered in the foreseeable future. legacies of past management, improved spawning cutthroat trout in this DPS. Current standards established by Oregon standards for future management Several other potential threats were under the CWA should result in actions, and the ability of coastal described in the Summary of Factors significant improvements in habitat cutthroat trout to survive for long Affecting the Species section of the conditions for native fish. periods in degraded aquatic and proposed rule (64 FR 16402) as The proposed rule stated that drought riparian systems provide the basis for principal factors for decline in the and climate condition resulting in maintenance of habitat for coastal subspecies-wide review of listing factors decreased ocean productivity might cutthroat trout within the DPS’s range. (64 FR 16402), but were not identified have compounded degraded freshwater Therefore, forest management is not as a specific threat to the southwestern habitat (64 FR 16403). These types of likely to result in the DPS of coastal Washington/Columbia River DPS (64 FR climate changes are natural, long-term cycles and coastal cutthroat trout are cutthroat trout becoming endangered in 16407). These include overutilization likely adapted to this variation. the foreseeable future. for commercial, recreational, scientific, The proposed rule described the Therefore, these climate cycles would or educational purposes (recreational potential loss of important estuarine not be expected to significantly threaten angling, by catch in recreational and habitat and stated that reductions in the coastal cutthroat trout in the foreseeable commercial harvest of other species, quantity and quality of estuarine habitat future. There is no evidence that and scientific or educational uses); probably contributed to declines of drought or other climate cycles have predation; some regulatory mechanisms anadromous cutthroat trout, but the significantly reduced spawning, rearing, (dredge, fill, and inwater construction relative importance of these risks was or migration habitat for the DPS. programs and water quality programs); not well understood (64 FR 16402). This Hybridization with other species climate and catastrophic natural events, is further complicated by the lack of could affect coastal cutthroat trout. The information on how coastal cutthroat and hybridization. We evaluated the most recent hybridization studies trout use large estuary systems. latest information on each of these within southwest Washington and the Significant portions of the estuarine potential threats and conclude that they Columbia River indicate that wetlands in the Willapa Bay and Grays are still not considered a threat at this hybridization occurs in scattered Harbor systems, and to a lesser degree time. locations, but generally at low levels in the Columbia River estuary, remain Cutthroat trout are not harvested throughout the range of coastal intact. Given current regulations, we do commercially within the DPS. Scientific cutthroat. Coastal cutthroat trout, unlike not anticipate additional large-scale and educational programs likely have most other cutthroat trout subspecies, conversion or loss of estuary or off- little impact on these populations and evolved in contact with rainbow/ channel areas. While past losses of recreational fishing under current steelhead trout and it is likely that the estuaries may have contributed to a regulations does not represent a long evolutionary association of reduction in the anadromous portion of significant threat to the DPS of cutthroat rainbow and coastal cutthroat trout the coastal cutthroat trout population trout. No introduced diseases have been would have led to isolating mechanisms over historic levels, we do not have documented in coastal cutthroat trout that would minimize the occurrence of evidence that the past and potential populations within the DPS and there is hybridization. This means there is a low future losses are likely to result in the no evidence of significant, elevated loss potential risk of hybridization DPS of coastal cutthroat trout becoming of wild cutthroat trout to native disease significantly affecting coastal cutthroat endangered in the foreseeable future. in the DPS at this time. No specific trout. The few areas observed with high Specific to this DPS, the proposed information exists regarding predation levels of hybridization are isolated and rule stated that ‘‘[n]egative effects of impacts by predatory fishes on cutthroat scattered, and do not appear to hatchery coastal cutthroat trout may be trout, though it is reasonable to assume represent a widespread threat to coastal contributing to the risks facing naturally some predation does occur. We have no cutthroat trout at this time. spawned coastal cutthroat trout in this evidence that aquatic predators have A few potential threats were not [DPS]’’ (64 FR 16407), though the significantly reduced coastal cutthroat described in the subspecies-wide review ultimate effects of hatchery practices trout populations or represent a major of listing factors in the proposed rule depend on the relative size of the threat to coastal cutthroat trout at this (64 FR 16402) or identified as a DPS- populations, the overlap of hatchery and time. There is no evidence that mammal specific threat to the southwestern naturally spawned fish, and the actual or bird predation represents a Washington/Columbia River DPS. These extent to which hatchery fish interbreed significant threat to the DPS of cutthroat include losses of habitat to agriculture with naturally produced fish (64 FR trout at this time. and livestock management, dams and
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barriers, urban and industrial southwestern Washington and the Oregon Fish and Wildlife Office (see development, and mining. We evaluated Columbia River, excluding the ADDRESSES). the latest information on each of these Willamette River above Willamette potential threats and concluded that Falls, as threatened. We will continue to Authors they are still not a significant threat at monitor the conditions of the coastal The primary authors of this document this time. cutthroat trout in southwest Washington are Robin Bown, U.S. Fish and Wildlife While populations of some portions of and the Columbia River. In the event Service, Oregon Fish and Wildlife Office the DPS of coastal cutthroat trout are that conditions or threats change and (see ADDRESSES) and Scott Craig, U.S. likely at lower-than-historic levels and the species becomes imperiled, we probably still declining, recent changes could again propose to list the species Fish and Wildlife Service, Western in regulations have reduced threats to as endangered or threatened under the Washington Office, 510 Desmond Drive the DPS as a whole. This, and the latest Act. We will continue to provide SE, Lacey, WA 98503. information indicating relatively technical assistance to Federal, State, Authority healthy-sized total populations (all life and other entities and encourage them history strategies) in a large portion (75 to address the conservation needs of the The authority for this action is section percent) of the DPS’s range, and the coastal cutthroat trout. We will continue 4(b)(6)(B)(ii) of the Endangered Species production of anadromous trout from to work with these agencies and entities Act of 1973, as amended (16 U.S.C. 1531 residents, lead us to conclude that the to collect additional biological et seq.). DPS of coastal cutthroat trout is not in information, monitor the status of Dated: June 24, 2002. danger of becoming endangered in the coastal cutthroat trout, and monitor the foreseeable future and, therefore, does progress of conservation efforts for the Steve Williams, not meet the definition of a threatened DPS. Director, Fish and Wildlife Service. species at this time. Therefore, we [FR Doc. 02–16579 Filed 7–3–02; 8:45 am] References Cited withdraw the April 5, 1999, proposed BILLING CODE 4310–55–P rule (64 FR 16397) to list the coastal A complete list of all references cited cutthroat trout population in is available upon request from the
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Part III
Securities and Exchange Commission 17 CFR Parts 210 and 229 Framework for Enhancing the Quality of Financial Information Through Improvement of Oversight of the Auditing Process; Proposed Rule
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SECURITIES AND EXCHANGE been sanctioned as a member invest their savings in the securities of COMMISSION accountant by a PAB within the last five public companies and thereby make years and the sanction has not been capital allocation decisions in reliance 17 CFR Parts 210 and 229 reversed, suspended, or vacated. on the financial statements of those companies. If investors lack confidence [Release Nos. 33–8109; 34–46120; 35– DATES: Comments should be received on 27543; IA–2039; IC–25624; File No. S7–24– or before September 3, 2002. in the reliability of the information 02] ADDRESSES: Comments should be presented, the fundamental purposes of submitted in triplicate to Jonathan G. the federal securities laws—to protect RIN 3235–AI41 Katz, Secretary, Securities and Exchange investors and promote efficient Commission, 450 Fifth Street, NW., markets—are thwarted. Framework for Enhancing the Quality Effective oversight of the accounting Washington, DC 20549–0609. of Financial Information Through profession is critical to quality financial Comments also may be submitted Improvement of Oversight of the information and trust in and reliance on electronically at the following electronic Auditing Process that information. By having effective mail address: [email protected]. oversight, investors are assured that AGENCY: Securities and Exchange All comment letters should refer to File skilled, disinterested professionals Commission. No. S7–24–02. This file number should operating under high ethical standards be included in the subject line if ACTION: Proposed rule. and strict quality control procedures are electronic mail is used. Comment letters auditing financial statements. Strong SUMMARY: The Securities and Exchange will be available for public inspection oversight helps to strengthen audit Commission (‘‘SEC’’ or ‘‘Commission’’) and copying in the Commission’s Public practice and to detect and deter is proposing rules designed to restore Reference Room, 450 Fifth Street, NW., weaknesses that could detract from an investors’’ faith in the financial Washington, DC 20549. Electronically accountant’s ability to fulfill the goal of information that they rely on for their submitted comment letters will be having financial statements audited by investment decisions. The proposed posted on the Commission’s Internet competent, independent accountants. rules reform oversight and improve website (http://www.sec.gov).1 Further, when oversight is accountability of auditors of public FOR FURTHER INFORMATION CONTACT: companies, thereby enhancing the compromised, the quality of financial Samuel L. Burke, Associate Chief information can be affected, and reliability and integrity of the auditing Accountant, Bert W. Mehrer, Assistant and financial reporting processes. Under investors’ trust in the quality of Chief Accountant, or Robert E. Burns, financial information is compromised as the proposed rules, a registrant’s Chief Counsel, Office of the Chief financial statements will not comply well. Accountant, at (202) 942–4400, U.S. The current system of oversight has with the requirements of the securities Securities and Exchange Commission, not produced a credible result. Flaws in laws and Commission rules and 450 Fifth Street, NW, Washington, DC the system have contributed to the regulations thereunder unless the 20549–1103. confluence of several factors that have registrant’s independent accountant is a SUPPLEMENTARY INFORMATION: We are undermined investor confidence in member of a Public Accountability proposing to amend rule 1–02 2 and rule financial information and market Board (‘‘PAB’’), and the registrant 2–01 3 of Regulation S–X, add new rules efficiency.6 Those factors include: engaging the accountant to audit or 13–01 through 13–07 to Regulation S– • The dramatic and sometimes review financial statements or prepare X,4 and amend item 401 5 of Regulation sudden reversals of public companies’ attestation reports that are filed with the S–K. financial conditions, with Commission is an adjunct member of corresponding significant financial the same PAB to which the accountant I. Executive Summary losses by investors and pensioners; belongs. Congress, through the federal • Revelations of accounting To improve oversight of and investor securities laws, imposed on public irregularities at public companies, confidence in the quality of financial companies the obligation to disclose including large and seemingly well- reports filed with the Commission, the complete and accurate financial regarded companies; Commission will not recognize a PAB information. Cognizant of the lessons of • The number of restatements of unless the PAB meets certain conditions history, however, Congress built into the financial information by public and performs certain functions. A PAB securities laws a significant safeguard: companies; must have a Board that is dominated by requirements that a public company’s • Increasing pressures on company persons who are not members of the financial information filed with the management and auditors in today’s accounting profession and must be Commission be audited by certified or economic environment; subject to the Commission’s oversight. A public accountants that are independent • Continuing concerns about the PAB must be committed to improving of that company. oversight of the accounting profession, the quality of financial statements relied The investing public and the including issues regarding the on by investors and the professional Commission must rely on the independence and effectiveness of the conduct of accountants by, among other competence, ethics, and independence current peer review and disciplinary things, directing periodic reviews of of accountants who certify the financial processes; and accounting firms’ quality controls over statements of public companies. People • The ineffectiveness of the Public their accounting and auditing practices Oversight Board (‘‘POB’’) that had and, when appropriate, disciplining 1 We do not edit personal identifying information, overseen the peer review system of accountants. A PAB also would set, or such as names or electronic mail addresses, from public accountants. rely on and oversee designated private electronic submissions. You should submit only information that you wish to make available 6 See, e.g., Matt Krantz and Greg Farrell, Fuzzy sector bodies to set, audit, quality publicly. accounting raises flags, USA Today, June 22, 2001, control, and ethics standards. Disclosure 2 17 CFR 210.1–02. at 1B (quoting an individual investor, ‘‘I almost would be required in Commission 3 17 CFR 210.2–01. don’t believe any numbers I read anymore’’); filings if an executive officer, director, 4 17 CFR 210.13–01–13.07. Rebecca Byrne, Audit Business Nearing Crisis of or director nominee of a registrant has 5 17 CFR 229.401. Faith, TheStreet.com, Dec. 10, 2001.
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These factors highlight longstanding well as others discussed in more detail recognition by the Commission would deficiencies in the regulatory system below, are the foundation of our include a PAB’s irrevocable consent to used to oversee the quality of the audits proposals: the continuous oversight function by the and reviews of financial statements that • Private Sector System of Regulatory Commission. Oversight. The accounting profession are filed with the Commission and • Cooperation with a PAB. To remain relied on by investors and the would be subject to a private sector in ‘‘good standing,’’ accounting firms, Commission. These factors, among system of regulatory oversight directed individual accountants, companies, and others, have contributed to a consequent by representatives of investors and decline in investor confidence, and issuers, not self-regulation by the companies’ management would provide the impetus for the profession. cooperate with PAB quality control • Commission’s proposals. Requirements as to Financial reviews, supplemental reviews, and We are proposing a new system of Statements. To assure that the benefits disciplinary proceedings. independent private sector regulation of the oversight process extend to • PAB Quality Control Reviews. A designed to improve oversight of the investors in all public companies: • PAB would perform quality control auditing process and strengthen investor An SEC registrant’s financial reviews of audit procedures and statements would not comply with confidence in financial information. The practices. To maintain high standards of Commission requirements unless the accounting profession would not and auditing, ethics, and quality control registrant’s accountants who audited or could not control or dominate the among its members, a PAB would proposed system. Rather, instead of a reviewed those statements were members of a PAB; and perform periodic quality control reviews body that functions under the aegis of • of its member accounting firms. In the American Institute of Certified An SEC registrant’s financial statements would not comply with conducting reviews, a PAB would Public Accountants (‘‘AICPA’’), which ensure that accounting firms have represents the accounting profession, Commission requirements unless the quality control policies and procedures we propose to create a framework for a registrant were a member of, and regarding, among other things: (i) new independent, private sector body thereby bound to cooperate in any review or proceeding commenced by, (or bodies) that we have termed a independence, integrity, and objectivity; the same PAB as its accountants.9 (ii) personnel management; (iii) ‘‘Public Accountability Board’’ • 7 Independent Board. To ensure acceptance and continuation of clients; (‘‘PAB’’). independence from the accounting Among other things, a PAB would (iv) audit performance; (v) audit profession that it would oversee, a PAB discipline accounting firms and methodology; and (vi) consultation and would be a diverse board, dominated by individual accountants for unethical or resolution of differences of professional persons who are not associated with the incompetent conduct or other violations opinion. A PAB would perform annual accounting profession. reviews of large accounting firms. of professional standards. A PAB would • Independent and Dependable also direct periodic reviews of Funding Source. To assure continuity • PAB Disciplinary Powers. A PAB accounting firms’ quality controls for and independence, a PAB would have a would conduct public disciplinary their accounting and auditing practices. dependable, uninterrupted funding proceedings and would have the ability A PAB would supplement, not source and not be voluntarily or solely to discipline accountants for unethical supplant, our enforcement efforts. We funded by members of the accounting or incompetent conduct or other would continue vigorously to profession. A PAB’s operations would violations of professional standards. A investigate and pursue instances of be funded through the assessment of PAB would be able to impose a wide accounting misconduct. The new fees on accounting firms who are range of disciplinary or remedial system would expand the opportunities members of the PAB and on the audit sanctions, including: to detect and remedy ethical lapses or clients of those firms—a funding • Fines; deficiencies in competence, or mechanism that is not controlled by the violations of professional standards, accounting profession. • Censures; thereby complementing our • SEC Oversight. Because a PAB • Required remediation; enforcement efforts. would serve an important public • Removal of an individual or Based on public input we have function, a private entity could not received to date, and our own serve as a PAB unless it was recognized termination of a firm from an audit experience, we have identified certain by the Commission after Commission engagement; key elements of a new framework to review of, among other things, the • Limitations on certain activities; improve oversight of the accounting entity’s proposed structure, its charter, and profession. We believe that these by-laws, budget, and proposed board • Suspension or disbarment from elements will promote investor members. Conditions of a PAB’s confidence in the financial reporting membership in a PAB. 8 • process. The following elements, as 6, Judge Stanley Sporkin (Ret.) (moderator), Robert Audit Standard Setting. A PAB Glauber, Neil Lerner, Professor Jonathan Macey, should have responsibility for assuring 7 Under our proposals, more than one PAB could Ted White; on April 4, J. Carter Beese, Jr. high standards of ethics, auditing, and be formed. For purposes of this release, however, (moderator), Ken Bertsch, Davis Costello, Professor we will refer to PABs in the singular. Dan Fischel, Barbara Franklin, and Edward quality controls for its members. A PAB 8 See, e.g., Transcripts from the public Nusbaum. The Commission also held an Investor should either set such standards or Roundtables that the Commission sponsored on Summit (‘‘Investor Summit’’) at which it received oversee any private sector bodies Assuring Adequate Oversight of Auditing Function valuable input. The webcast of the Investor Summit designated to set standards. held on March 4, and 6 and April 4, 2002, in New is available at www.connective.com/events/ York, Washington, DC and Chicago, respectively secsummits/. (‘‘SEC Roundtables’’). Transcripts of the SEC 9 As we discuss in detail below, a PAB will Roundtables are available through the require a registrant’s cooperation only to the extent Commission’s web site: www.sec.gov. Participants necessary to further a PAB’s reviews or proceedings included: On March 4, Robert Mundheim regarding the registrant’s accountant. A PAB will (moderator), William Allen, Warren Buffet, James not conduct ‘‘roving’’ investigation of registrants Copeland, David Shedlarz, Melvyn Weiss; on March and will not sanction registrants.
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II. The Pressing Need To Improve certified public accountants.12 Without that Commission registrants and issuers Oversight of, and Restore Confidence an unqualified audit opinion from an must engage before making a public in, the Auditing and Financial accounting firm,13 a Commission offering of or having a public market for Reporting Processes registrant or issuer in an initial public their securities. That alone is a offering has not satisfied and cannot significant indication of legislative A. The Federal Securities Laws satisfy the statutory and regulatory intent concerning the critical role of the Contemplate, and Their Effective requirements for audited financial auditing process, but Congress did not Application Depends Upon, the statements, its filings are deficient stop by describing the required Existence of Mechanisms for Adequate under the securities laws, and it cannot professionals merely as ‘‘accountants.’’ Oversight of the Auditing Component of sell securities to the public or file its Rather, the securities laws qualify that the Financial Disclosure Process annual reports in conformity with term so that accountants auditing the It is no mystery what problem Commission rules. Furthermore, financial statements of public Congress intended to remedy—and without an accounting firm’s review of companies are both subject to oversight believed it was remedying—by seeking a registrant’s quarterly financial intended to facilitate a high level of to insure that issuers provide investors statements,14 a registrant cannot not file competence—reflected in the statutory with ‘‘complete information relative to its quarterly reports in conformity with requirement to be ‘‘certified public’’ or the financial condition of the issuer.’’ 10 Commission rules.15 Accounting firms ‘‘public’’—and disinterested in any As the Senate Report on the Securities also must prepare attestation reports outcome of the audit process other than Exchange Act of 1934 (‘‘Exchange Act’’) related to the internal controls of certain getting reliable information to the described: broker dealers,16 investment public—reflected in the statutory 17 18 The committee has repeatedly heard companies, transfer agents, and requirement to be ‘‘independent.’’ 20 19 testimony illustrating the evasions, others. The securities laws supplement those suppressions, distortions, exaggerations, and Under the statutory scheme, safeguards by giving the Commission outright misrepresentations practiced by accountants are the only professionals significant flexibility to make rules and corporations with intent to cloak their regulations bearing on public operations and to present to the investing 12 For example, Items 25 and 26 of Schedule A companies’ financial disclosures, to the Securities Act of 1933 (‘‘Securities Act’’), 15 public a false or misleading appearance as to including the methods and forms financial condition. The chairman of the U.S.C. 77aa(25) and (26), and Section 17(e) of the committee on stock list of the New York Securities Exchange Act of 1934 (‘‘Exchange Act’’), employed in making those disclosures. 15 U.S.C. 78q(e), expressly require that financial Stock Exchange testified that * * * [in one The Commission relies on certified statements be audited by independent public or financial statements, and consequently case] practically all the assets of the company certified accountants. Sections 12(b)(1)(J) and (K) consisted of notes receivable, good will, and and 13(a)(2) of the Exchange Act, 15 U.S.C. 78l(b) on the competence, ethics, and licenses arbitrarily valued at grossly and 78m(a)(2), Sections 5(b)(2)(H) and (I), independence of accountants, to protect exaggerated figures. The testimony also 10(a)(1)(G), and 14 of the Public Utility Holding its processes and carry out its established that within a period of a few days Company Act of 1935 (‘‘PUHCA’’), 15 U.S.C. 79e(b), mandate.21 While our staff reads and the assets of the company were written up 79j(a)(1)(G), and 79n, Sections 8(b)(5) and 30(e) and (g) of the Investment Company Act of 1940 (‘‘ICA’’), 100 percent in value. In another case brought 15 U.S.C. 80a–8(b)(5) and 80a–29, and Section 20 The Supreme Court has recognized and to the attention of the committee, the assets 203(c)(1)(D) of the Investment Advisers Act of 1940 underscored the significant and unique role in of a company were marked up from (‘‘Advisers Act’’), 15 U.S.C. 80b–3(c)(1)(D), which the securities laws cast accountants that $4,000,000 to $24,000,000. A memorandum authorize the Commission to require the filing of audit public companies. In declining to extend to prepared by a corporate official was financial statements that have been audited by accounting firms certain confidentiality protections introduced in evidence which discussed the independent public accountants. available to attorneys representing a client and alternatives of preparing the corporation’s 13 ‘‘An unqualified opinion states that the preparing for trial, the Court emphasized that: annual report in either the ‘standard’ or the financial statements present fairly, in all material [a]n independent certified public accountant respects, the financial position, results of performs a different role. By certifying the public ‘understandable’; form, the decision being in operations, and cash flows of the entity in reports that collectively depict a corporation’s favor of the former. Many other instances of conformity with generally accepted accounting financial status, the independent auditor assumes a ‘window dressing’ were observed, where principles.’’ AICPA, Statements on Auditing public responsibility transcending any employment inexcusable methods were employed to Standards (‘‘SAS’’) No. 58, Codification of relationship with the client * * * [and] owes inflate assets, obscure liabilities, and conceal Statements on Auditing Standards (‘‘AU’’) § 508.10. ultimate allegiance to the corporation’s creditors deficits.11 14 The proposed rules would define ‘‘review’’ in and stockholders, as well as to the investing public. We begin from the premise that, this context to mean a review of financial United States v. Arthur Young & Co., 465 U.S. statements in accordance with generally accepted 805, 817–18 (1984). The Court further noted that, through the securities laws’ auditing standards (‘‘GAAS’’), as may be modified pursuant to the securities laws, ‘‘The SEC requires requirements related to financial or supplemented by the Commission. A review the filing of audited financial statements in order disclosure, Congress intended to includes procedures that are less in scope than an to obviate the fear of loss from reliance on address these issues directly and audit, and consists generally of inquiries and inaccurate information, thereby encouraging public analytical procedures, rather than research and investment in the Nation’s industries.’’ Id. at 819 forcefully. Congress did so by verification procedures. See, SAS No. 71, AU § 722 n.15. prescribing certain general statutory (as revised by SAS No. 90). 21 In this regard, the Commission adopted Rule requirements and delegating to the 15 Rule 10–01(d) of Regulation S–X, 17 CFR 102(e) of our Rules of Practice to protect the Commission the regulatory flexibility to 210.10–01(d), which states in part, ‘‘Prior to filing, integrity of Commission processes. 17 CFR interim financial statements included in quarterly 201.102(e). See, e.g., Touche Ross & Co. v. SEC, 609 implement those requirements and to reports on Form 10–Q (17 CFR 249.308(a)) must be F.2d 570, 582 (2d Cir. 1979) (upholding the adopt regulations in furtherance of the reviewed by an independent public accountant predecessor to Rule 102(e) as ‘‘reasonably related’’ statutes’ purposes. using professional standards and procedures for to the purposes of the securities laws, in part Those statutory prescriptions include conducing such reviews, as established by generally because the rule ‘‘provides the Commission with accepted auditing standards, as may be modified or the means to ensure that those professionals, on requirements that public companies’ supplemented by the Commission.’’ whom the Commission relies heavily in the financial information filed with us be 16 17 CFR 240.17a–5(g), (h), and (j). performance of its statutory duties, perform their certified by independent public or 17 Form N–SAR, item 77B; 17 CFR 274.101. tasks diligently and with a reasonable degree of 18 17 CFR 240.17Ad–13. competence’’). 19 10 S. Rep. No. 73–792, 1934 WL 1289 at *10 (Apr. See, e.g., Exchange Act Release No. 16900 (June To protect its own processes, and by extension 17, 1934) (Senate Report on Securities Exchange 17, 1980), 45 FR 41920 (June 23, 1980) regarding the investing public, the Commission vigorously Act of 1934). clearing agencies and Exchange Act Release No. pursues violations of professional standards. We 24216 (Mar. 13, 1987), 52 FR 8998 (Mar. 20, 1987) have initiated Rule 102(e) proceedings when 11 Id. at 11. regarding depository trust companies. auditors failed to adhere to professional standards.
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comments on a great many filings, it inefficient capital allocation in the confidence in the financial reporting does not, cannot, and should not markets. process. perform the extensive audit or review Through the 1990s, such restatements, B. Current Oversight Mechanisms Do procedures that auditors must perform as well as allegations of accounting Not Meet Their Objectives under GAAS. In addition, the volume of irregularities at companies such as financial information filed with us far Several factors lead us to consider Miniscribe and Phar-Mor, and more exceeds what the Commission staff can whether the accounting profession’s recently at companies such as Rite-Aid, meaningfully review. We, therefore, self-regulatory oversight mechanisms, Cendant, MicroStrategy, Sunbeam, must rely heavily on the accounting on which the markets and we have McKesson HBOC, Waste Management, profession, as Congress intended, to previously been willing to rely, do not and Xerox have caused increasing ensure and enhance the integrity of the meet the necessary objectives. For the concern. The bankruptcy of Enron large volume of financial information reasons described below, we conclude Corporation last year, which was the that forms the cornerstone of our full that the self-regulatory mechanisms are largest bankruptcy in history and disclosure system.22 not producing credible results, and that resulted in substantial financial losses In sum, investors and the Commission this failure may be linked to features to investors and pensioners, has rely on accountants to assure disclosure that cannot realistically be expected to dramatically heightened the public of accurate and reliable financial change through further self-regulation or attention given to those concerns, information. As a result, ‘‘[b]reaches of minor changes to the current oversight posing a critical threat to investor professional responsibility jeopardize mechanism. confidence in financial information the achievement of the objectives of the The factors that concern us include generally.28 securities laws and can inflict great the recent increases in the number of To the extent that restatements and damage on public investors.’’ 23 public companies restating their accounting irregularities suggest a Effective oversight of the accounting financials, revelations of serious failure of those in the accounting profession therefore is critical to financial difficulties at a variety of profession to perform consistently with protecting the public interest and companies, a closed-door professional sufficient skill and competence,29 we preventing this ‘‘great damage’’ to disciplinary process, and serious are concerned that inherent limitations investors. questions related to the current system in the existing oversight mechanism We are concerned that we are today of firm-on-firm ‘‘peer reviews’’ as a prevent that mechanism from doing all facing some of the same problems that check on accountants’ quality control that is required to curb such lapses. For Congress sought to address in the 1930s processes.25 The need for significant example, the existing self-regulatory when the federal securities laws were structural reforms in the oversight mechanism has not through its system enacted. Certainly there is evidence of a process to protect the public has been of peer review uncovered significant public perception that these problems suggested by several people.26 deficiencies in competence, and it does are recurring with disconcerting, and As noted, one indication of the need not, and probably cannot, include the unacceptable, frequency.24 It falls to the for an enhanced regulatory structure is power to suspend incompetent Commission to try to identify the causes the increase in the number of individuals altogether from providing of the problem, and, to the extent restatements in recent years. According audit, review, or attest services to public possible, craft solutions consistent with to a recent study, in the last three years companies. its statutory mandate. more than 700 companies have restated While some aspects of the existing We have carefully considered the earnings.27 While there are many system are plainly beneficial, including, causes. For the reasons described below, reasons for these restatements, we are for example some portions of the we believe that the oversight concerned that they contribute to Quality Control Inquiry Committee mechanism for insuring that public investor confusion and weaken investor (‘‘QCIC’’) process,30 the profession’s companies have their financial statements audited by skilled, 25 During the initial stages of the Commission’s 28 During the 19909s, federal banking regulators consideration of these issues, the profession’s reviewed the performance of accounting firms in disinterested professionals operating vehicle for oversight of the peer review system was relation to the savings and loan crisis of the late under high ethical standards and strict the POB, until it voted to disband, and as of April 1980s and early 1990s. Accounting firms’ quality control procedures is not 30, 2002, ceased official operations. The AICPA’s settlements of actions pending before the Office of working as intended. We are concerned SEC Practice Section (for firms that audit financial Thrift Supervision included, among other things, statements filed with the Commission) (‘‘SECPS’’) increased training requirements for individuals that the deficiencies in that mechanism has indicated that, notwithstanding the POB’s working on audits of financial institutions, work frustrate the financial disclosure decision to terminate operations, the SECPS will paper retention requirements, additional purpose of the securities laws, continue its peer review and QCIC programs until consultation procedures within the firms, and the undermine investor confidence in such time as a new regulatory model replaces them. payment of significant restitution to the Federal The SECPS also has indicated that it will continue Deposit Insurance Corporation and Resolution Trust financial disclosures, and contribute to to fund the oversight operations of the POB staff Corporation. See In the Matter of Ernst & Young, (now called the Transition Oversight Staff, or TOS) OTS Order No. AP 92–127 (Nov. 23, 1992); In the For example, we sanctioned auditors under Rule during this transition period. Letter from Robert J. Matter of Deloitte & Touche, OTS Order No. AP 94– 102(e) for not appropriately responding to warning Kueppers, Chair, to Robert K. Herdman, Chief 13 (Mar. 14, 1994); In the Matter of KPMG Peat signals pointing to client fraud (see, e.g., In the Accountant (Feb. 15, 2002). See also SEC Press Marwick, OTS Order No. AP 94–37 (Aug. 9, 1994); Matter of Nanette Miller, Accounting and Auditing Release No. 2002–40 (Mar. 19, 2002) regarding the In the Matter of Grant Thornton, L.L.P., OTS Order Enforcement Release No. (‘‘AAER’’) 1241 (Mar. 29, TOS’s continuing review of certain accounting No. AP 96–30 (Oct. 3, 1996). 2000); In the Matter of Laubscher and Griffin, AAER firms’ quality control systems for assuring 29 See Janet Whitman, For Competence, 1082 (Sept. 29, 1998)), and when they have failed compliance with auditor independence Accounting Gets ‘‘D’’ in New Poll, Wall St. J., Apr. to obtain the specialized knowledge necessary to requirements. 10, 2002, at A7; Accounting Faces Crisis of perform an audit (see, e.g., In the Matter of Ruzicka, 26 See generally Section II.C. below. Competence, Not Integrity; ‘‘Andersen-itis’’ Isn’t AAER 1155 (Aug. 24, 1999). 27 One recent study identified 234 restatements in What Ails the Industry, Newstream.com, Apr. 10, 22 The courts have recognized this regulatory 1999, 258 restatements in 2000, and 305 2002 (surveyed companies indicated accountants regime. Touche Ross, 609 F.2d at 581. restatements in 2001. Huron Consulting Group, A lack competence in certain technical areas). 23 Id. Study of Restatement Matters: For the Five Years 30 Under the membership requirements of the 24 See, e.g., Nanette Byrnes, Accounting Failures Ended December 31, 2001, at 8 (June 11, 2002). See SECPS, after receiving service of a complaint in any Aren’t New—Just More Frequent, Bus. Wk., Jan. 28, also Jim McTague, Fixable Flaws, Barron’s, Jan. 7, litigation against the firm or its personnel, or the 2002, at 46. 2002, at 16. Continued
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ability to discipline or remedy to the public of peer reviewers’ C. The Need for Reform Is Widely incompetent or unethical conduct has findings.33 For many years, we had Recognized been a persistent concern.31 The stated in our Annual Report that the profession’s disciplinary program peer review and QCIC processes Investor confidence in the quality of continues to suffer from several inherent resulted in accounting firms ‘‘focusing financial information is critical, and it is weaknesses, including: on and achieving the important goal of directly linked to investor confidence in 37 • Peer reviews may not consistently maintaining and improving effective the quality of audits. As a participant be as thorough as necessary. Peer quality control systems.’’34 Because of in the Commission’s Roundtables stated: review is the process by which other our growing concerns, however, we [T]he public should have real confidence accountants assess and test compliance intentionally did not include that that their interest is being looked after in the with quality control systems for the statement in our 1999, 2000, and 2001 mechanism for regulating the profession, and accounting and auditing practices of Annual Reports. disciplining the members of the profession, SEC Practice Section (‘‘SECPS’’) • setting professional standards. All of those. The disciplinary process is They want to know that the way that this is members. The objectives of peer review voluntary. The disciplinary program is are to determine whether the reviewed done is going to look after their interests, and conducted within the auspices of the not just the interests of the body of the firm: (i) designed its system to meet AICPA, which is a voluntary private individuals who practice in that profession.38 Quality Control Standards established sector organization dominated by Because of the above-described by the AICPA; (ii) complied with its accounting firms. quality control system to provide concerns, calls for improved oversight • There is no independent and reasonable assurance of complying with of the accounting profession have dependable funding source. During professional standards; and (iii) become more urgent. discussions about the POB’s reviews of complied with SECPS membership Congress, the Commission, and many the firms’ systems of quality controls requirements. Upon the completion of a others have questioned whether over auditor independence, the SECPS review the peer reviewer prepares a weaknesses inherent in the profession’s took the unprecedented step of report and a letter of comments, which self-regulatory process limit its ability to threatening to halt the funding for the may recommend improvements to the improve sufficiently the performance of firm’s system of compliance. On POB’s reviews. • audits of public companies. More occasion, firms have received ‘‘clean’’ The disciplinary process relies generally, strong public sentiment has peer review reports despite well- solely on information gathered from emerged calling for more effective publicized problems within a firm. For accountants. The process is generally oversight. The connection between that example, a report published by an limited to reviewing information oversight and investor confidence has independent consultant noted one firm obtained from the accountants and does never been as pronounced as it is today. not include obtaining information from had numerous violations of the auditor The need for reform has been independence rules,32 yet the next peer third parties, such as management of the audit client. As Norman R. Walker, highlighted by President George W. review report on the firm mentioned Bush. On March 7, President Bush neither the need for improvements in former chairman of an AICPA disciplinary panel has said, ‘‘Basically announced a ten-point plan to improve the firm’s quality controls in this area corporate disclosure, make corporate nor the efforts the reviewed firm had we’re confined to looking at the [public] record and the information that the officers accountable, and develop a underway to make those improvements. stronger and more independent audit Our staff has provided the POB with [member] is able to provide and willing system. In discussing the latter point, comments on peer reviews with the goal to provide.’’35 President Bush stated: of improving the process and achieving • Sanctions are weak. The most more understandable communications stringent sanction in an AICPA An independent regulatory board should proceeding is expulsion from the ensure that the accounting profession is held to the highest ethical standards. Under this commencement of any publicly announced AICPA, which does not directly affect regulatory investigation, that alleges deficiencies in proposal, an independent regulatory board an accountant’s ability to practice before would be established, under the supervision the conduct of an audit of the financial statements 36 of a Commission registrant, the firm must not only the Commission or elsewhere. of the SEC, to develop standards of review the engagement to evaluate the performance • The disciplinary proceedings are professional conduct and competence. This of senior personnel with respect to the specific not public. AICPA disciplinary board would have the ability to monitor, issues contained in the complaint but also report investigate, and where needed, enforce its the matter to the QCIC. SECPS, Requirements of proceedings are conducted behind Members, at k; SECPS, Appendix M—Procedures in closed doors and, while improvements Connection with an Alleged Audit Failure, SECPS have been made in the public reporting 37 See Relationships Between Registrants and § 1000.46. The QCIC will review the matter and, if of sanctions, limited information is Independent Accountants, Accounting Series appropriate, refer it to the AICPA Professional Release No. 296 (Aug. 20, 1981), 46 FR 43181 (Aug. Ethics Division, which will evaluate whether the available regarding the results of its 27, 1981), which states in part: matter warrants investigation. proceedings. [T]he capital formation process depends in large 31 See, e.g., David S. Hilzenrath, Auditors Face part on the confidence of investors in financial Scant Discipline, Wash. Post, Dec. 6, 2001, at A01; 33 See, e.g., SEC, Annual Report 2001, at 90; SEC, reporting. An investor’s willingness to commit his See, e.g., John C. Burton, The Evolutionary capital to an impersonal market is dependent on the Revolution in Public Accounting, 52 Brook. L. Rev. Annual Report 1999, at 91. The SEC staff oversees the peer review and QCIC processes by periodically availability of accurate, material and timely 1041, 1046–47 (1987) (Mr. Burton, former Chief information regarding the corporations in which he Accountant to the SEC, commenting on the POB, selecting at random a sample of peer reviews and evaluating working papers and POB oversight files has invested or proposes to invest. The quality of has stated that ‘‘[w]hile the structure created was information disseminated in the securities markets highly promising and the development of a regular related to those reviews. Our staff also reviews QCIC closed case summaries and related POB and the continuing conviction of individual process of peer review is very desirable, my own investors that such information is reliable are thus judgment is that the results have fallen short of oversight files. 34 See, e.g., SEC, Annual Report 1998, at 74. key to the formation and effective allocation of expectations. In the first place, the emphasis on capital. Accordingly, the audit function must be process and remedial actions has been too limiting. 35 David S. Hilzenrath, Auditors Face Scant meaningfully performed and the accountant’s Peer reviews need to go beyond process to look at Discipline, supra note 31. independence not compromised. application of procedures and to develop a 36 AICPA, Official Releases: Organizational significant disciplinary process’’). Structure and Functions of the SEC Practice Section 38 EC Roundtables, supra note 8, at 37 (Mar. 6, 32 See SEC Press Release No. 2000–4 (Jan. 6, of the AICPA Division for CPA Firms, J. Acct., Nov. 2002) (statement of Neil Lerner, Head of Risk 2000). 1977, at 113, 115. Management (U.K.), KPMG).
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ethics principles by punishing individual encouraged the development of a important, its connection to the AICPA offenders.39 stronger body that plays a more active creates an appearance of control by that 47 In addition, the Commission recently role in the oversight of quality control body. held the SEC Roundtables to discuss a reviews and professional discipline. Former SEC Chief Accountants and variety of issues relating to the financial Former SEC Chairman Arthur Levitt other leaders of the accounting reporting process, including auditor also has called for a new oversight body. profession also have stated publicly that oversight and held an Investor In his testimony before the Senate a new regulatory body is needed.48 Mr. 40 Summit. Participants in our Committee on Governmental Affairs, he James Turley, Chairman of Ernst & Roundtables represented a variety of supported a ‘‘truly independent’’ non- Young LLP, recently stated in an op-ed constituencies. Participants provided us governmental oversight body that has article in The Wall Street Journal: with the benefit of extensive and diverse the power to conduct timely insights into the issues confronting the [W]e should create a new regulatory body investigations and to discipline for the profession. It should have its own profession’s self-regulatory programs accountants. He also stated that the new funding, offices and staff. It should have and how those programs should be direct power over the profession’s 41 body should operate in public—not improved. For example, Mr. Ken behind closed doors—and, to preserve disciplinary and audit quality control Bertsch, Director, Corporate its integrity, the accounting profession programs, replacing the current ‘‘peer review’’ process in which firms review each Governance, at Teachers Insurance and should not fund the body.45 Annuity Association College Retirement other. To ensure maximum public credibility, In addition, Harold Williams, who this oversight should come from a body other Equities Fund (‘‘TIAA–CREF’’), noted was the Chairman of the Commission at his organization’s lack of confidence in than the American Institute of Certified the time the SECPS and POB were Public Accountants, because many believe it the current peer review process. Others, created, stated in recent testimony has not maintained its historic focus on such as Mr. David Shedlarz, Chief before the Senate Committee on professional responsibility.49 Financial Officer, Pfizer Inc., offered Banking, Housing, and Urban Affairs: Similarly, PricewaterhouseCoopers constructive outlines of the attributes LLP, in letters to certain audit clients and duties for a new regulatory body. Self-regulation, aggressively overseen, can that are Commission registrants, stated, While our proposals are not identical to be much more effective in enforcing the spirit of the rules than can a policing agency of ‘‘[T]here is no question that the current any one participant’s suggested government. However, it is evident that the regulatory structure is in need of approach, the discussions at the existing structure is not adequate to the task reform.’’ 50 It stated that changes that are Roundtables were very valuable in and needs to be redesigned and strengthened especially critical include having helping us to identify issues, consider * * *. oversight come from outside the alternatives, and frame the positions The Public Oversight Board was created by accounting profession and involve more contained in our proposed rules. the profession during my chairmanship as an participative reviews by staff that is Beyond our Roundtables, others have effort at self-regulation. We expressed independent of the accounting firms. It voiced concerns with the current self- concern at the time whether the peer review process administered by the profession regulatory system and called for reform. 47 would be adequate. But, as believers in the Accounting and Investor Protection Issues For example, the Consumer Federation principle of self-regulation, we concluded Raised by Enron and Other Public Companies: of America has called for a complete Oversight Hearing Before the Senate Comm. on that the Board should have the opportunity Banking, Housing, and Urban Affairs, at 8 (Feb. 12, overhaul of the profession’s self- to prove itself. In my opinion, the events over 2002) (statement of David S. Ruder, Chairman, 42 regulatory system. The Financial the intervening years have demonstrated that Securities and Exchange Commission, 1987–89) Executives International (‘‘FEI’’) also it does not meet the needs and is not 48 Accounting and Investor Protection Issues has recommended the creation of a new adequate * * *. A system needs to be Raised by Enron and Other Public Companies: oversight body for the accounting established which is independent of the Oversight of the Accounting Profession, Audit Quality and Independence, and Formulation of profession.43 The FEI has indicated that accounting profession, transparent and able to serve both effective quality control and Accounting Principles: Hearing Before the Senate a majority of the new oversight body’s disciplinary functions.46 Comm. on banking, Housing, and Urban Affairs board should be executives with At the same hearing, former SEC (Feb. 26, 2002) (statement of Michael H. Sutton, knowledge in accounting and finance, Chief Accountant, Securities and Exchange Chairman David Ruder called for a new Commission, 1995–98) which states: ‘‘Regulatory but should not be drawn from the audit private sector regulatory system to processes that will build confidence in the auditing profession. FEI further has stated that oversee the accounting profession. In profession will be truly independent; they will be the new body’s principal tasks should describing the deficiencies in the open; they will actively engage, inform, and involve 44 the public; they will be adequately resourced and be oversight of audits and discipline. current system, he said: Many other observers and members of empowered to accomplish their mission; and they [A]lthough the POB’s powers have been will be amendable to change as events dictate. I the accounting profession have lost believe that the critical ingredients of an effective strengthened, it does not have sufficient confidence in the efficacy of the SECPS regulatory process that can restore and maintain budget to allow it to function effectively. It programs overseen by the POB and have pubic trust include: does not have the power to force accounting • Timely and thorough investigations of firms to provide the documents necessary to circumstances that may involve fraudulent financial 39 Specifics on the President’s Ten-Point Plan complete investigations * * *. It is forced to reporting. (Mar. 7, 2002) are available at http:// rely upon the accounting profession itself to • Objective and fair assessments of the role and www.whitehouse.gov/news/releases/2002/03/ engage in enforcement activities. Most performance of the auditor. 20020307.html. • Timely and meaningful discipline of auditors 40 See supra note 8 regarding the SEC and firms that violate acceptable norms of conduct. Roundtables and Investor Summit. 45 The Fall of Enron: How Could It Have • Regular oversight and periodic examinations of 41 Id. Happened?: Hearing Before the Senate Comm. on the policies and performance of independent 42 Governmental Affairs (Jan. 24, 2002) (statement of Accounting and Investor Protection Issues auditors. Raised by Enron and Other Public Companies: Arthur Levitt, Chairman, Securities and Exchange • Timely and responsive changes in professional Hearing Before the Senate Comm. on Banking, Commission, 1993–2000). standards and guidance when a need for Housing, and Urban Affairs, at 6 (Mar. 20, 2002) 46 Accounting and Investor Protection Issues improvements is identified.’’ (statement of Senator Howard M. Metzenbaum Raised by Enron and Other Public Companies: (Ret.), Chairman, Consumer Federation of America). Oversight Hearing Before the Senate Comm. on 49 James S. Turley, How Accounting Can Get Back 43 FEI, FEI Observations and Recommendations: Banking, Housing, and Urban Affairs (Feb. 12, Its Good Name, Wall St. J., Feb. 4, 2002, at A16. Improving Financial Management, Financial 2002) (statement of The Honorable Harold M. 50 Letters from Samuel A. DiPiazza, Jr., Chief Reporting and Corporate Governance (Mar. 2002). Williams, Chairman, Securities and Exchange Executive Officer, PricewaterhouseCoopers LLP to 44 Id. at 3. Commission, 1977–81). selected audit clients (Jan. to Feb. 2002).
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also stated that the regulatory structure legislation that is enacted. The The Senate hearings began with a staff ‘‘needs teeth’’ and, ‘‘if an independent Commission must proceed with its study prepared for the Subcommittee on oversight body finds quality procedures proposal under its existing statutory Reports, Accounting, and Management lacking, it must have the right to revoke mandate, however, to strengthen that was critical of the accounting an individual’s or firm’s right to investor confidence in the oversight of profession. The staff study stated, practice.’’ 51 the auditing process and assure ‘‘Reforms are needed to restore public Congress has introduced several bills investors of comprehensive reform in confidence in the accuracy and that would create bodies similar to, but the event that no legislation is passed. reliability of financial and other in some respects different than, a PAB. information reported by publicly-owned D. The History of Audit Oversight Numerous committees in both the companies.’’57 During the several Mechanisms Suggests the Need for a Senate and House have held hearings to months that followed, the Different Type of Oversight Mechanism explore reform of the accounting Subcommittee gathered extensive regulatory structure. A common theme Over the years the accounting information from accounting firms, the in these hearings was the need for profession has been subject to various Commission, and others. At the improvements in the manner in which forms of oversight with varying degrees conclusion of the hearings, the Senate accountants are regulated, and, in of success. As a foundation for Subcommittee Report stated, ‘‘Self- particular, the need for effective private- understanding the elements of the new initiated action by the private sector in sector regulation of the accounting oversight mechanism that we propose, cooperation with the SEC is the method profession.52 we believe that it is useful to examine of reform preferred by subcommittee We intend to continue to work with the history of the present system. members.’’58 Congress on these and other bills, and The current self-regulatory The Commission’s involvement in will monitor the progress of pending mechanism was developed as a result of issues related to the AICPA’s self- legislation. We will implement any concerns expressed during regulatory processes, which included the establishment in 1977 of the POB, 51 congressional hearings in the mid to late Id. increased during and after these 52 See H.R. 3763, the Corporate and Auditing 1970s. These hearings investigated Accountability, Responsibility, and Transparency unexpected failures by major congressional hearings. The Act of 2002: Hearing Before the House Comm. on corporations and questioned why Commission undertook to oversee, and Financial Services (Apr. 9, 2002) (statement of auditors failed to detect, and financial annually report to Congress on, the Richard C. Breeden, Former Chairman, U.S. profession’s response to Congressional Securities and Exchange Commission 1989–93) statements failed to reflect, illegal 59 (‘‘[T]here is only one governmental ‘regulator’ for payments made by United States concerns. The 1977 self-regulatory the accounting industry, and that regulator is now companies to foreign officials. During system is described in more detail in and should remain the SEC. The SEC has the these hearings, the accounting Appendix A. history, the culture and the institutional strength to be able to stand up to any wrongdoer. However, profession’s competence to detect and As concerns about the quality of private sector groups working under the SEC’s aegis deter such problems was a significant financial reports has increased in recent can extend the reach of supervision in a healthy issue. The question was asked, ‘‘Where years, the POB, the Commission and fashion.’’); Accounting and Investor Protection was the independent auditor?’53 And others began to call for an update to the Issues Raised by Enron and Other Public Companies: Hearing Before the Senate Comm. on bills were introduced that would have governance mechanisms of the POB, Banking, Housing, and Urban Affairs (Feb. 14, created a new regulatory structure for which were adopted soon after it was 2002) (statement of Paul A. Volcker, Chairman of the profession.54 formed in 1977. While intended to be the Trustees of the International Accounting autonomous (the POB could set its own Standards Board and Former Chairman, Board of The hearings in the House of Governors of the Federal Reserve System) Representatives focused on how several budget, establish its own operating (‘‘[E]xperience strongly suggests that governmental federal agencies used the regulatory procedures, and appoint its own oversight, with investigation and enforcement powers granted by Congress.55 After members, chairperson, and staff), the powers, is necessary to assure discipline * * *. POB relied for its funding on voluntary [T]his committee will want to explore means for considering the work of accounting providing more ‘‘backbone’’ for industry oversight, firms that audit registrants’ financial dues paid by AICPA firms that audited either through legislation or by encouraging statements, the Subcommittee on public companies and belonged to the exercise of SEC regulatory authority. Better means AICPA section composed of such of identifying professional misconduct, with the Oversight and Investigations of the possibility of meaningful fines and withdrawal of House Committee on Interstate and firms—SECPS. In addition, the POB professional licenses, appears essential.’’); Foreign Commerce found that the lacked the ability to organize and Accounting and Investor Protection Issues Raised ‘‘SEC’s reliance on the private implement its own quality control by Enron and Other Public Companies: Hearing reviews. And, the POB was not given Before the Senate Comm. on Banking, Housing, and accounting profession alone to assure Urban Affairs (Mar. 5, 2002) (statement of Joel that corporate records are examined by any authority to sanction auditors for Seligman, Dean and Ethan A.H. Shepley University independent auditors has been deficiencies or incompetence noted Professor, Washington University School of Law) insufficient to protect public investors during quality control reviews. (‘‘I believe at this time a new auditing self- regulatory organization is necessary. It should and to accomplish the objectives of the 57 replace not just the POB, but a byzantine structure Federal securities laws.’’56 Staff of Subcomm. on Reports, Accounting, and of accounting disciplinary bodies which generally Management of the Senate Comm. on Government have lacked adequate and assured financial Operations, 95th Cong., Report on the Accounting 53 Staff of Subcomm. on Reports, Accounting, and support; clear and undivided responsibility for Establishment: A Staff Study, 20 (Subcomm. Print Management of the Senate Comm. on Government discipline; and an effective system of SEC Mar. 31, 1977). oversight.’’); Accounting and Investor Protection Operations, 95th Cong., Report on the Accounting 58 Staff of Subcomm. on Reports, Accounting, and Issues Raised by Enron and Other Public Establishment: A Staff Study, 7 (Subcomm. Print Management of the Senate Comm. on Governmental Companies: Hearing Before the Senate Comm. on Mar. 31, 1977). Affairs, 95th Cong., Report on Improving the Banking, Housing, and Urban Affairs (Mar. 6, 2002) 54 See, e.g., H.R. 13175, 95th Cong. (1978). Accountability of Publicly Owned Corporations and (statement of Shaun O’Malley, Chair of the 2000 55 See Staff of Subcomm. on Oversight and Their Auditors 4 (Subcomm. Print Nov. 4, 1977). Public Oversight Board Panel on Audit Investigations of the House Comm. on Interstate and 59 Accounting and Auditing Practices and Effectiveness, and Former Chair, Price Waterhouse Foreign Commerce, 94th Cong., Report on Federal Procedures: Hearing Before the Subcomm. on LLP) (‘‘I am in favor of the creation of an Regulation and Regulatory Reform, 1 (Subcomm. Reports, Accounting and Management of the Senate organization to oversee the accounting profession, Print Oct. 1976). (also known as the ‘‘Moss Comm. on Governmental Affairs (June 13, 1977) whether it is created by regulation or by Report’’). (statement of Harold M. Williams, Chairman, U.S. legislation.’’). 56 Id. at 38. Securities and Exchange Commission).
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Discussions among the Commission would enhance investors’ confidence who are not associated with the staff, POB, SECPS, AICPA, accounting that accounting firms are performing accounting profession and who are in firms, and others, culminated in the their public responsibilities and that, the position to make all significant adoption of a new POB charter in therefore, the financial information decisions on quality control and February 2001. The principal features of published by registrants and issuers is disciplinary issues. the new charter included: reliable. 5. A PAB should have an independent • Oversight of the SECPS and, for the After full consideration of the and dependable funding source—A PAB first time, oversight of the Auditing weaknesses of the present system and must have an independent and Standards Board and the now-defunct how it can be improved, we have based dependable funding source. The POB Independence Standards Board; our proposed rules on the position that was funded by the AICPA, which called • Expanded responsibility for a PAB should reflect eight core into question its ability to act totally improving communications among principles: separate from the profession. To assure various bodies involved in the 1. A PAB should be separate from, continuity and independence, a PAB profession’s regulatory processes; and independent of, the AICPA— should be neither controlled nor • Expanded responsibilities to Despite the POB’s oversight, significant principally funded by members of the undertake special reviews and projects; failures in the auditing process continue accounting profession. A PAB’s and to exist. In addition, there is a perceived operations should be funded on a non- • Increased funding from the conflict between the AICPA’s dual roles voluntary basis through the assessment SECPS.60 of serving the best interests of its of fees on accounting firms who are Even under the new charter, however, membership and serving investors. To members of the PAB and on those firms’ the POB lacked the express authority to restore confidence in the system, we audit clients, the reliability of whose direct the review of a firm’s quality believe that it is necessary for a new financial reporting would be control system or to discipline a firm, or PAB to be established, operated, and presumptively benefited by the persons in a firm, for noncompliance overseen completely outside of the activities of the PAB.62 with professional standards or the profession. 6. For larger firms, annual PAB- SECPS membership requirements. The 2. Requirements as to financial directed reviews of firms’ quality new charter also provided that the statements—To assure that the benefits controls for accounting, auditing, and SECPS would continue to be the sole of the oversight process extend to auditor independence should replace source for the POB’s funding, and investors in all public companies, the triennial firm-on-firm peer reviews— required the SECPS to approve funding financial statements of an SEC- While individuals within accounting for the POB’s special or unanticipated registered company would not comply firms generally regard firm-on-firm peer projects and for any amount above the with Commission requirements unless reviews as serious events that can affect $5.2 million annual limit set forth in the the company’s accountants were their careers, investors and critics of the charter.61 members of a PAB and the company program often consider such reviews E. A New System of Private Sector was a member of, and thereby bound to among the limited number of large firms Oversight Will Address Current cooperate in any review or proceeding to be a ‘‘one hand washes the other’’ Problems and Increase Investor commenced by, the same PAB as its approach to regulation.63 In addition, Confidence accountants. In the Commission’s view the triennial reviews are too infrequent this is necessary to assure cooperation for large firms.64 The private sector framework we are and access necessary to carry out its 7. A PAB should have the ability to proposing would provide reasonable reviews, quality control, and discipline firms and individuals and be assurance to investors and to the disciplinary activities over the able to impose a wide range of Commission that accounting firms’ accounting profession. sanctions, including the ability to audit, review, and attest procedures, 3. A PAB should operate under the require an accountant to no longer audit which are required by the securities SEC’s oversight—The SEC’s relationship a particular public company—A laws and Commission regulations, fulfill with the POB was based on the desire primary criticism of the current system their statutory and regulatory purposes, of the profession and the POB to is that it does not include effective and thereby will increase assurances provide assurance to Congress and to disciplinary proceedings. The strongest that financial reporting, also required by the public that the peer review process sanction issued by the AICPA is the securities laws and Commission and related programs were working expulsion from that organization, which regulations, meet applicable legal and well. The SEC had limited ability to does not remove the individual or firm regulatory requirements. While no affect the work of the POB or the peer system of private sector or government review program. Under the new 62 See, e.g., SEC Roundtables, supra note , at 38 regulation can ensure one hundred framework, the Commission would (Mar. 6, 2002) (statement of Ted White, Corporate percent compliance with professional Governance Director, California Public Employees’ recognize a PAB after reviewing, and Retirement System) (‘‘I would suggest some of the standards, we believe that this system being satisfied with, among other things, key tenets be * * * a board that consisted of the entity’s charter, by-laws, proposed independent members with solely independent 60 POB, Annual Report 2000, at 5. The POB budget, and proposed board members. funding’’). charter is available at http:// 63 See, e.g.,Editorial, Watching the Watchers, www.publicoversightboard.org/charter.htm. The SEC would have the ability to Wash. Post, May 21, 2002, at A16; SEC 61 The new POB charter also fell short of review, alter, modify, or abrogate any Roundtables, supra note , at 55–56 (Mar. 4, 2002) instituting all of the recommendations of the Panel PAB rule and to review any PAB (statement of William Allen, New York University on Audit Effectiveness. For example, the Panel had disciplinary action. Law School) (suggesting that the public perception recommended that the POB should approve all of the current peer review process is an ‘‘I scratched appointments to the Auditing Standards Board and 4. Public members should dominate a your back, you scratch my back organization’’). SECPS Executive Committee, that the POB oversee PAB—To be credible, it must be clear 64 See Letter from Robert J. Kueppers, Chair, the AICPA’s evaluations, compensatory hiring and that the PAB is an independent SECPS Executive Committee, to Managing Partners promotion decisions with respect to the staff of the organization and places the public of SECPS Member Firms, (Mar. 21, 2002), which AICPA committees it was to oversee, and the interest and the interest of investors announces new requirements for member firms establishment of ‘‘no strings attached’’ funding for with more than 500 SEC clients to undergo annual the POB. The Panel on Audit Effectiveness, Report above all else. A PAB would be a review procedures during each of the years between and Recommendations 140 (Aug. 31, 2002). diverse board, dominated by persons triennial peer reviews.
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from practice before the Commission. registrant is a member of the same PAB company requires special expertise.69 We believe that we should continue to as its accountants, and thereby is bound The foundation for that expertise has pursue violations of the securities laws to cooperate in that PAB’s reviews or been developed over many generations and disciplinary actions under Rule proceedings regarding the registrant’s of accountants practicing before us and 102(e). We also believe, however, for a accountant. is embodied in professional standards PAB’s quality control system to have For the Commission to recognize a for auditing, attestations, quality ‘‘teeth’’ the PAB should have the ability PAB, a PAB would have to meet certain controls, ethics, and other areas. These to discipline its member accountants for conditions and perform certain standards guide accountants in their incompetent, unethical, or other functions. We also are proposing to daily work of examining the accuracy deficient conduct discovered during a require disclosure if an executive and completeness of financial quality control review or that otherwise officer, director, or person nominated to information disclosed by management comes to its attention, and that it must become a director of a public company to investors. It is imperative, therefore, be able to sanction accounting firms for has been sanctioned as a member that auditors reach reasoned decisions deficient quality control systems. The accountant by a PAB within the last five that are well grounded in these public must be assured that a PAB years. professional standards. would be expected to and able to take Further, as we stated when we revised A. Regulation S–X Definitions appropriate and meaningful action to our auditor independence rules in 2000, address incompetent or unethical Rule 1–02 contains the general auditor independence is instrumental to conduct and violations of professional definitions for terms used throughout the financial reporting process and to standards. Regulation S–X.65 Although the terms investor confidence in financial 8. A PAB should issue public reports ‘‘review’’ and ‘‘attest’’ are common to statements.70 Investors will commit of its activities—Although the POB accountants, they have never been their savings to an impersonal securities issued an annual report, the SECPS has defined within Regulation S–X. Because market only if they know that unbiased not issued a separate public report since those terms are used in the rules we are auditors take a critical look at 1997. To promote the understanding of proposing in this release, and in other managements’ decisions and processes its processes and to inform the public of rules within Regulation S–X,66 we are used to prepare the financial statements the results of its programs and proposing to define them in rule 1– and that those auditors will place the proceedings, a PAB should issue reports 02(d). Each proposed definition codifies concerns and interests of investors to the public at least annually and, to the current common understanding of above not only the company’s interests the extent possible, on a real time basis, the term by referring to GAAS and to but above the accountant’s self-interest that describe the PAB’s quality control Statements on Standards for Attestation as well.71 and disciplinary activities, contain the Agreements,67 as may be modified by Strong oversight of the profession PAB’s audited financial statements, the Commission. helps to (and one goal of a PAB is to) explain the fees it has imposed on its We solicit comments on the above strengthen firms’ audit practices and to members, and other information. definitions. Do the definitions of detect and deter weaknesses that might The Commission invites comments on ‘‘review’’ and ‘‘attest’’ capture the detract from an accountant’s ability to these factors, including suggestions for understanding of the words common to fulfill professional standards of ethics alternative or additional factors that accountants? Should the definitions and competence and requirements of should lay the foundation for our rules. differ from those in GAAS? If so, why auditor independence. In performing In addition, the Commission invites and and in what way? Are there reasons why quality control reviews and through the encourages persons who would consider we should not define ‘‘review’’ or disciplinary process, a PAB would play forming a PAB to begin a dialogue with ‘‘attest’’ in the rule? Should we narrow an important role in identifying and the Commission as soon as possible. or broaden the definitions? If so, how? addressing competency, ethics, The Commission will make itself independence, and other professional B. Requirements for Financial available for meaningful dialogue to practice issues.72 Statements and Attestation Reports further and facilitate the timely In recognition of the critical establishment of a PAB. Qualifications of Accountants importance in having auditors well- III. Discussion of Proposed Rules Existing Commission regulations state versed in professional standards that accountants are not qualified to operating under effective quality control We are proposing to amend and add systems, proposed rule 2–01(a)(2) would rules to Regulation S–X. To assure that practice before the Commission unless they are licensed under the laws of the state that the Commission would not the benefits of the oversight process recognize any accountant to be a extend to investors in all public place of their residence or principal office, and are independent from their ‘‘certified public accountant’’ or ‘‘public companies: accountant,’’ or as ‘‘independent’’ with • An SEC registrant’s financial audit clients.68 As a practical matter, respect to an audit client if, during the statements would not comply with however, it has long been recognized Commission requirements unless the that, in addition to these two 69 See generally SECPS membership accountants who have audited or qualifications, auditing a public requirements. See also SAS No. 1, § AU 210. reviewed those statements are members 70 Revision of the Commission’s Auditor of a PAB. Attest reports would not 65 17 CFR 210.1–02. Independence Requirements, Securities Act Release comply with Commission requirements 66 See e.g., Rule 10–01(d) of Regulation S–X, 17 No. 33–7919 (Nov. 21, 2000), 65 FR 76008 (Dec. 5, unless prepared by outside accountants CFR 210.10–01(d), which requires that quarterly 2000). financial statements in Forms 10–Q be reviewed by 71 Relationships Between Registrants and who are members of a PAB; and an independent accountant prior to a registrant Independent Accountants, Accounting Series • An SEC registrant’s financial filing its Form 10–Q with the Commission. Release No. 296 (Aug. 20, 1981), 46 FR 43181 (Aug. statements and attestation reports 67 See generally SAS No.71, AU § 722 (as revised 27, 1981). contained in or accompanying an SEC by SAS No. 90). See also Attestation Standards: 72 The securities laws require, or authorize the Revision and Recodification, Statement on Commission to require, that registration statements registrant’s reports or registration Standards for Attestation Engagements No. 10 (Jan. and reports include financial statements that have statements would not comply with 2001). been audited by an independent public or certified Commission requirements unless the 68 17 CFR 210.2–01. public accountant. See supra note 12.
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professional engagement period, that rule regarding registrant membership. Accountant. Proposed rule 13–02(a) accountant is not a member in good Should registrants be adjunct members? would define ‘‘accountant’’ for the standing of a PAB (see below for Could our objectives be accomplished purposes of Article 13. This definition discussion of the definition of ‘‘member other than by having registrants be has two important characteristics. First, accountant in good standing’’). A PAB’s adjunct members—for example, by it encompasses both accounting firms oversight of accountants, particularly as simply requiring registrants to and individual accountants. Second, it to independence issues, will in some participate in funding a PAB and to limits the term ‘‘accountants’’ to those cases require a PAB to consider cooperate with a PAB’s reviews and public or certified public accountants information that can be supplied only proceedings? Why or why not? We and firms engaged in auditing or by the audit client. We therefore believe solicit comment on alternative reviewing financial statements, or that the purposes of the statutory frameworks to accomplish our goals. For preparing attest reports, that are filed requirements will be advanced example, if registrants can demonstrate with the Commission. The definition is significantly if an audit client is a that their accountants have an similar to the definition of ‘‘accountant’’ member of the same PAB as its alternative system or process that meets in our auditor independence rules.75 accountant, and thereby agrees to the objectives of our rules (e.g., through Is this definition appropriate? Is it supply information in connection with third-party reviews or other appropriate for the definition to include that PAB’s reviews and proceedings organizations), should the registrants be both accounting firms and individual regarding the accountant. Accordingly, exempted from the operation of the accountants? Would the goals of the the proposed rule contemplates that an rules, in particular Rules 2–01(a)(2) and proposed rules be better or more audit client be an adjunct member of the 13–01? Should such systems or appropriately accomplished if only one same PAB of which its accountant is a processes be required to operate with or the other was required to be a PAB member. our approval and under our oversight? member? Does this definition raise In addition, we solicit comment on what practical problems for firms that have Registrants’ Reports and Registration role, if any, exchanges and the National partners who specialize in tax or other Statements Association of Securities Dealers non-audit services, but also may be Under the same reasoning as (‘‘NASD’’) should play with respect to a consulted briefly during an audit? For discussed above, proposed rule 13–01(a) PAB. example, a firm might wish to have a tax requires reports and registration Investment advisers, certain broker- partner consult for a very brief time statements filed with the Commission dealers, transfer agents and certain other with an audit engagement partner about that contain financial statements 73 be entities that file audited financial a company’s tax accrual. Would audited or reviewed by an accountant statements with us are not considered to requiring such partners to be members that: (1) Is a member in good standing be ‘‘registrants’’ under Regulation S–X of a PAB pose an unnecessary burden of a PAB of which the registrant 74 filing because they are not issuers of securities on the partners or accounting firms? If the report or statement is an adjunct and, therefore, would not fall within there would be an unnecessary burden, member in good standing, and (2) Article 13. Nonetheless, because the what would that burden be and is there satisfies all other requirements auditor independence rules discuss any empirical data that would quantify prescribed by the federal securities laws ‘‘audit clients’’ and not registrants, such a burden? and the rules and regulations auditors of such entities’ financial Adjunct member in good standing. thereunder concerning an accountant statements, and the entities, would be Under proposed rule 13–02(b), an entity that audits, reviews, or prepares such subject to the proposed rules. Is this is an ‘‘adjunct member in good report or registration statement. appropriate? Should entities that are not standing,’’ when the entity is an adjunct We request comment on proposed registrants be outside the scope of the member of a PAB and is not delinquent rules 2–01(a)(2) and 13–01(a), including proposed rules? Should accountants (as defined in proposed rule 13–02(c)) the approach and structure of those that audit only entities that are not in paying fees assessed by the PAB, or rules for the filing with the Commission issuers of securities be outside the scope in appropriately responding to a PAB’s of financial statements and attestation of the rules? request for documents and testimony relevant to a PAB quality control reports. Are the definitions appropriate? The proposals utilize the definition of review, supplemental review, or Will they further the goals of enhanced ‘‘audit client’’ that is contained in Rule disciplinary proceeding concerning the oversight of the financial reporting 2–01(f)(6) of Regulation S–X. That adjunct member’s accountant. With process and enhanced quality of definition includes affiliates of the audit respect to documents and testimony, the financial information? We request client. We request comment on the adjunct member’s ‘‘good standing’’ comment on the aspect of the proposed application of that definition to the would turn on whether it has produced rules proposed in this release. Should 73 See, e.g., Section 13(b)(1) of the Exchange Act, documents that a PAB has requested the definition of ‘‘audit client’’ include 15 U.S.C. 78m(b)(1), which states, ‘‘The from the adjunct member or its affiliates for purposes of the proposed Commission may prescribe, in regard to reports management, provided testimony that a made pursuant to this title, the form or forms in rules? Why or why not? Are there PAB has requested from the adjunct which the required information shall be set forth special concerns in the investment * * *. Regulation S–X, 17 CFR 210, prescribes member or its management, and used company, investment adviser, or broker- the form and content of financial statements filed best efforts to cause its agents and non- dealer context that are raised because of with the Commission. management employees to supply any 74 ‘‘Registrant’’ is defined in rule 1–02(t) of the inclusion of affiliates? Regulation S–X, 17 CFR 210.1–02(t), to mean ‘‘the documents and testimony requested issuer of the securities for which an application, a C. Definitions for Article 13 registration statement, or a report is filed.’’ As 75 Rule 2–01(f)(1) of Regulation S–X, 17 CFR discussed above, for purposes of proposed In addition to providing definitions 210.2–01(f)(1), which states, ‘‘Accountant * * * amendments to § 210.2–01, adjunct membership for use throughout Regulation S–X, the means a certified public accountant or public requirements would also extend to ‘‘audit clients.’’ proposed rules would provide certain accountant performing services in connection with Accordingly, throughout the discussion in this an engagement for which independence is required. release, any reference to ‘‘registrant’’ should also be definitions of terms that would have a References to the accountant include any understood to encompass ‘‘audit client’’ where the specific meaning for the purposes of accounting firm with which the certified public context requires. Article 13 and a PAB. accountant or public accountant is affiliated.’’
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from it by the PAB.76 In defining ‘‘good proposed section 13–04(d)(11)) that the We request comment on the proposed standing,’’ the proposed rule provides member or adjunct member has failed to definition of delinquent. Are the only for ‘‘best efforts’’ by an adjunct pay the fees assessed by the PAB, or has proposed notice provisions appropriate? member with respect to non- failed to produce required documents or Are there other additional management employees and agents. provide required testimony after any circumstances when a member or While such employees may often have good faith legal objection to the request adjunct member of a PAB should be documents and knowledge relevant to a for documents or testimony has, in considered delinquent? What are they? PAB review or disciplinary proceeding, accordance with the PAB’s rules, been Should the rule explicitly identify we are concerned about making the resolved in the PAB’s favor. An adjunct specific privileges or categories of good standing of every public company member may also be determined to be privileges that a PAB may not invade? turn on its ability to preclude any single delinquent if it fails to use best efforts If so, what are they? employee from refusing to cooperate to cause its non-management employees Foreign Accountant. We have with a PAB review or proceeding. and agents to supply requested proposed in rule 13–02(d) to define Rather, an adjunct member will remain documents or testimony. ‘‘foreign accountant’’ to mean an in good standing as long as it uses its A PAB’s ability to obtain fees, accountant: 79 (1) Having a place of best efforts to cause those employees documents, and testimony from residence and principal office outside and other agents to comply with PAB members and adjunct members would the United States and its territories, and requests for testimony, and so long as be critical to the PAB’s ability to carry (2) not licensed in the United States or the adjunct member and its management out the purposes of the proposed rules. its territories. If an accountant resides, provide all requested documents and Accordingly, becoming delinquent in practices, or is licensed in the United testimony and the adjunct member is paying or responding to a PAB request, States, that accountant would be subject timely in paying fees assessed by the in accordance with a PAB’s rules, to the proposed rules. In this regard, if PAB. automatically terminates the good a foreign-licensed accountant resides in We invite comments on alternative standing of a member or adjunct the United States as a result of a approaches. Are there other, preferable, member. temporary assignment to work at a U.S. ways to define or condition an audit Under proposed rule 13–04(d)(11), firm, he or she might be subject to the client’s good standing that are sufficient discussed below, a PAB must devise a proposed rules. We intend for the PAB, to achieve the goals of PAB funding and rule for advance public notice of the however, to consider such issues and PAB access to information relevant to its danger of a delinquency, sufficient to the many variations of working mission? Should the good standing of an give audit clients an opportunity to relationships that may arise in the adjunct member be contingent on prepare for such a delinquency and the operation of the firms’ international willingness of management to testify? consequent potential loss of good organizations and, if considered How should former management be standing by their accounting firm. necessary or appropriate, to interpret treated? How, if at all, should In addition, proposed rules 13– this provision, adopt related rules, or ‘‘management’’ be defined for these 04(d)(7) and 13–04(d)(11) condition a request amendments to the purposes? Should more than PAB’s Commission recognition on the Commission’s definition. management be covered by the PAB having fair procedures for Is the proposed definition of ‘‘foreign requirement? For example, our auditor requesting documents and testimony accountant’’ appropriate? Is the independence rules use the defined and for resolving any disputes requirement that both the residence and term ‘‘accounting role or financial concerning those requests or concerning principal place of business be outside reporting oversight role.’’ 77 Should the fees. We would expect a PAB to take the United States and its territories proposed rule include all or any of the seriously the need for full and fair unduly restrictive, or not restrictive individuals covered by that definition? procedures before making a delinquency enough? Are there other factors that Should the rule cover directors? With determination as to a member or adjunct should be included in the definition? Is respect to non-management employees member asserting a good faith legal the intent to permit a PAB to consider and agents, is it appropriate for the rule basis for objecting to any request for this issue appropriate? Does the to require only that the adjunct member documents or testimony.78 proposed definition provide sufficient make best efforts to secure from them flexibility for a PAB to consider these any documents or testimony requested 78 We would expect that, with respect to good issues? by the PAB, or should the adjunct faith assertions of privilege, a PAB would adopt a Member accountant in good standing. reasonable approach comparable to that of other member’s good standing depend upon private organizations or similarly situated private Proposed rule 13–02(e) describes the the adjunct member actually causing the parties. Cf. D.L. Cromwell Investments, Inc. v. requirements that an accountant must employee or agent to supply the NASD Regulation, Inc., 279 F.3d 155, 161–63 (2d satisfy to be a member accountant in Cir. 2002) (interview demand issued by private good standing with a PAB. First, the documents and testimony? Is there an membership organization to a member lacked appropriate intermediate approach to sufficient nexus to government inquiry to trigger accountant must be a member of the addressing that issue? Alternatively, Fifth Amendment protection, since organization PAB, a status that would be obtained should the standard be ‘‘reasonable was not state actor and interview demand was not through enrollment procedures devised result of collusion with government) (citing by a PAB pursuant to proposed rule 13– efforts’’ instead of ‘‘best efforts.’’ Desiderio v. National Association of Securities Delinquent. Under proposed rule 13– Dealers, Inc., 191 F.3d 198, 206 (2d Cir. 1999), cert. 04(d)(1). In addition, status as a member 02(c), a member or adjunct member of denied, 531 U.S. 1069 (2001) (rejecting a PAB is ‘‘delinquent’’ when a PAB has constitutional challenges to NASD action because 805 (1984); Couch v. United States, 409 U.S. 322 provided public notice (consistent with ‘‘NASD is a private actor, not a state actor’’) and (1973). Further, the recognition of such privilege by United States v. Solomon, 509 F.2d 863, 867–71 (2d a PAB would significantly impair its ability to Cir. 1975) (rejecting Fifth Amendment challenge to further the goals and purposes of federal securities 76 As discussed with respect to the definition of New York Stock Exchange inquiry of member laws reflected in the proposed rules. ‘‘delinquent,’’ below, we expect that a PAB will because New York Stock Exchange is not 79 As noted previously, under proposed rule 13– adopt reasonable practices and procedures for government actor)). We would specifically expect, 02, the term ‘‘accountant’’ includes both dealing fairly with good faith assertions of legal however, that a PAB would not honor any assertion individuals and firms, but is limited to those objections to document and testimony requests. of an accountant-client privilege. An accountant auditing or reviewing financial statements or 77 Rule 2–01(f)(3) of Regulation S–X, 17 CFR client privilege is not recognized under federal law. preparing attestation reports filed with the 210.2–01(f)(3). See United States v. Arthur Young & Co., 465 U.S. Commission.
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accountant in good standing involves independent during the professional to a triennial quality control review. For two further elements that must be engagement period, and we do not want consistency, we have incorporated into satisfied. The first element is satisfied if to permit any gamesmanship with the proposed rule the definition of ‘‘SEC the accountant has not been barred, respect to cooperating with the PAB. clients’’ that is found in the AICPA’s suspended, or otherwise sanctioned by The term ‘‘professional engagement bylaws and resolutions,87 but we have a PAB. Alternatively, if the accountant period’’ is defined in proposed rule 13– provided a PAB with the ability to has been barred, suspended or 02(g) to begin when an accountant amend the definition to add entities that otherwise sanctioned, the first element either signs an engagement contract to the PAB believes should be considered is satisfied if the accountant has been review or audit financial statements or to be SEC clients for the purpose of this reinstated by the PAB after having been to prepare an attestation report, or rule. Under the AICPA definition, SEC barred or suspended, or if the begins audit, review, or attest clients include issuers in initial public accountant has not been cited by the procedures, whichever is earlier. The offerings and registrants filing periodic PAB in a public notice as being period ends when the registrant or reports under the Exchange Act (except noncompliant with the terms and accountant notifies the Commission that broker-dealers filing only because of conditions of any other sanction the registrant is no longer the section 15(a) of that Act 88) or the imposed by the PAB. The second accountant’s audit client.81 This Investment Company Act. With respect element is rooted in the need to ensure definition parallels the definition of the to SEC clients, should companies whose funding of, and cooperation with, a same term in the auditor independence reporting obligations arise solely under PAB, and so is similar to the rules.82 Section 15(d) of the Exchange Act be requirements to be an adjunct member Does the proposed definition capture included within the definition of SEC in good standing, described above. the appropriate period? Is there a clients? Specifically, an accountant satisfies the different beginning point that would be We also generally request comment second element if the accountant is not more appropriate? Would a different on all of the definitions in the proposed delinquent in paying fees or supplying end point be appropriate? rule, including the proposed scope of required documents and testimony. The Professional Standards. Proposed rule those definitions, and whether there are documents and testimony that must be 13–02(h) defines ‘‘professional additional definitions that should be supplied at a PAB’s request in order for standards’’ to include accounting,83 added or proposed definitions that the accountant to remain in good auditing,84 and attestation standards,85 should not be included in any final standing are the accountant’s the Commission’s auditor independence rules? documents and testimony and the regulations,86 the standards of the documents and testimony of any of the Independence Standards Board, and any D. Commission Recognition of Public accountant’s employees, or other other standards related to the audit, Accountability Boards agents.80 Should the rule prescribe review, or preparation of financial A PAB must be an organization that different limits on the documents and statements filed with the Commission. places the interests of investors above testimony that an accountant must These standards would include those all else. To assure the ability and desire provide to maintain good standing? Are set, or designated as authoritative, by a of an entity to represent investors and there other factors that the rule should PAB, including auditing, quality promote high quality financial take into account for purposes of control, or ethics standards. Does this reporting, the Commission would study determining ‘‘good standing?’’ definition capture all of the standards carefully each organization before Public Accountability Board. and regulations that are needed and determining whether to recognize it as Proposed rule 13–02(f) would define the appropriate? a PAB under the proposed rules. In this term ‘‘Public Accountability Board’’ or SEC clients. Proposed rule 13–03(i) regard, proposed rule 13–03(a) would ‘‘PAB’’ to mean an entity that is defines the term ‘‘SEC clients.’’ We have require that each entity desiring to organized in accordance with, and for defined this term, which is distinct from become a PAB make a submission to the the purposes described in, proposed ‘‘registrant,’’ for the very limited Commission containing the Article 13, and that is recognized by the purpose of identifying the dividing line representations and materials necessary Commission. (by reference to the number of ‘‘SEC for the Commission to determine the Professional Engagement Period. Both clients’’) between those accounting entity’s ability to carry out the functions proposed rule 2–01(a)(2) and proposed firms that will be subject to an annual and to accomplish the purposes that are rule 13–01 operate by reference to the quality control review and those (with described in Article 13. As noted in ‘‘professional engagement period.’’ fewer SEC clients) that will be subject proposed rule 13–03(b), the Commission Under the operation of those rules, if may ask the entity to supplement its either the accountant or the audit client 81 Such notice may occur under item 4 of Form submission with additional information. is not a member in good standing with 8–K, 17 CFR 249.308. Proposed rule 13–03(b) also indicates 82 a PAB for any portion of the 17 CFR 210.2–01(f)(5)(ii)(A) and (B). that the Commission would, consistent professional engagement period, the 83 The Financial Accounting Board (‘‘FASB’’) and other sources establish generally accepted financial statements and attestation accounting principles (‘‘GAAP’’) used to prepare 87 AICPA Bylaw section 230R, Implementing reports included in or accompanying financial statements filed with the Commission. For Resolutions Under Section 2.3.5 for Definition of that audit client’s filings with the the ‘‘hierarchy of GAAP,’’ see SAS No. 69, AU ‘‘SEC Client’’ (As adopted by Council Jan. 8, 1990), Commission will not be acceptable. We § 411. which states: consider it important that any failure of 84 The AICPA’s Auditing Standards Board That for purposes of section 2.3, an SEC Client (‘‘ASB’’) issues SAS. Under Rule 202 of the AICPA’s is good standing during the professional Rules of Professional Conduct, AICPA members • An issuer making an initial filing, including engagement period have significant must adhere to these standards or be prepared to amendments, under the Securities Act of 1933. consequences since auditors must be justify any departures from them. The ASB’s Audit • A registrant that files periodic reports (for Issues Task Force is assigned the responsibility to example, forms N–SAR and 10–K) with the SEC 80 As discussed above with respect to the provide timely guidance on the application of the under the Securities Exchange Act of 1934 (except definition of ‘‘delinquent,’’ we expect that a PAB ASB’s pronouncements. brokers or dealers registered only because of will adopt reasonable practices and procedures for 85 The AICPA’s ASB issues Statements on Section 15(a) of that Act) or the Investment dealing fairly with good faith assertions of legal Standards for Attestation Engagements, or SSAEs. Company Act of 1940. objections to document and testimony requests. 86 17 CFR 210.2–01. 88 15 U.S.C. 78o(a).
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with the public interest and for the Proposed rule 13–03(c)(4) requires an must be, and must be perceived by protection of investors, decide whether entity seeking Commission recognition investors to be, dominated by to recognize an entity as a PAB based on as a PAB to represent that it would representatives of investors and issuers, the entity’s commitment and capacity to establish rules, membership or ‘‘public members,’’ as opposed to carry out the functions and accomplish requirements, systems and procedures representatives of the accounting the purposes of the proposed rules. The designed to further the goals described profession. Proposed rule 13–04(b) sets Commission would make its in proposed rule 13–03(c)(3) and forth several requirements for the determination by issuance of a sufficient to accomplish, at a minimum, structure, membership, and budget of a Commission order. the further objectives described in PAB designed to ensure that public We request comment on the proposed section 13–04(d), and board members dominate all aspects of procedures for Commission recognition discussed below. With regard to a PAB’s activities. First, proposed rule of a PAB. In particular, is the standard proposed rules 13–03(c)(3) and (4), are 13–04(b)(1) would require that a PAB for recognition of a PAB appropriate? these appropriate representations for the have a fixed number of board members, Should we base our determination on Commission to require? More generally, none of whom are, or have been at any factors other than or in addition to the are there additional representations or time in the previous two years, an entity’s commitment and capacity to information that an entity should be employee of an accountants’ carry out the functions and to required to provide to aid the professional organization.89 accomplish the purposes of the Commission’s determination of whether Additionally, no more than one-third of proposed rules? What other factors to recognize the entity as a PAB? the members, and in no event more than should the Commission consider? Finally, proposed rule 13–03(c)(5) three of the members, may be, or have Proposed rule 13–03(c) sets forth the would require an entity seeking been at any time in the ten year period information to be submitted to the recognition as a PAB to represent that it preceding his or her PAB term: (1) An Commission by an entity seeking would study and monitor quality accountant; (2) a partner, principal, recognition as a PAB. Under proposed control developments in other countries shareholder, or managerial employee of rule 13–03(c)(1), the entity’s submission and report periodically to the an accounting firm; or (3) a retired must include its organizational Commission on whether the exemption partner, principal, shareholder, or structure, proposed budget, and for foreign accountants in proposed rule managerial employee of an accounting proposed board members and terms of 13–07, discussed below, should be firm. board membership. This information withdrawn. A PAB may recommend The proposed rule does not set the must be sufficient for the Commission to that the exemption be maintained, number of PAB board members, but determine that the entity will satisfy the withdrawn in whole or part, or modified rather leaves this to a PAB’s discretion. requirements set out in proposed to place conditions on the receipt of the In this regard, however, because of the section 13–04(b), and discussed below. exemption. Although not stated in our variety of functions to be performed by Under proposed rule 13–03(c)(2), the proposed rules, a PAB also may choose the PAB, we suggest that a PAB proposed PAB must submit its charter to participate in efforts to develop and consisting of nine members likely could and bylaws. Specific criteria that the improve international or foreign meet the objectives of the rule. charter and bylaws must satisfy are set national auditing, quality control or We believe that having a small out in proposed section 13–04(c) and ethics standards. With regard to minority of accountants on a PAB discussed below. We solicit comment proposed rule 13–03(c)(5), is this an would be appropriate because of the on the materials that a PAB should appropriate and useful study for a PAB functions we anticipate a PAB would submit to the Commission when seeking to conduct? What should be the time perform. Under the previous self- recognition as a PAB. Are these frame of the study? Are there other areas regulatory system, the POB had five materials appropriate for the that we should require a PAB to study members who had not been, or had not Commission to require? Are there other and report on to the Commission? recently been, members of the materials regarding the organization of accounting profession. That regulatory an entity seeking recognition as a PAB E. Conditions of Commission system also contained, however, the that the Commission should require or Recognition of Public Accountability SECPS Executive Committee, the Peer review to inform its determination of Boards Review Committee, and the QCIC, whether to recognize a PAB? For Proposed section 13–04 sets which were comprised entirely of active example, should we require an entity conditions to ongoing Commission or retired accountants. We envision a seeking to be recognized to submit its recognition of a PAB. An entity seeking PAB taking over the work of not only rules, membership requirements, and recognition as a PAB under proposed the prior POB but also much, if not all, descriptions of its systems and section 13–03 must meet certain of these procedures for our review before we requirements, specifically those 89 One of our core principles for a PAB is that it make a determination about contained in subsections (b) and (c), at be outside the auspices of the AICPA or similar association or organization that has a purpose of recognition? the time of its initial request for serving the interests of ‘‘accountants,’’ as defined in In seeking recognition as a PAB, recognition. For continued recognition Article 13. If an employee of such an organization under proposed rule 13–03(c)(3), an by the Commission, the criteria in this served on a PAB, he or she would be obligated to entity would represent that it would serve both accountants and investors. While the section must be met on an ongoing interests of accountants and investors often are the pursue certain goals, such as to work to basis. For the reasons described below, same, they also may differ at times. To avoid real improve the quality of member firms’ we believe that these conditions are conflicts and the appearance of conflicts of interest, audits and reviews; work to improve necessary to ensure that a PAB acts in we have proposed that no employee of such an member firms’ quality controls and association or organization be a PAB board member the public interest, consistently with the and that there be a two-year period between compliance with auditor independence rules. working for such an organization and serving on a and ethics requirements; enhance PAB. Because members of state boards of investor confidence in the audit process; Organizational Structure, Board accountancy, which are state governmental agencies and foster cooperation and coordination Membership, and Budget assigned the mission of protecting the public, would not face such conflicts, being a member or among private sector standard-setting To improve investor confidence in the employee of a state board would not disqualify an bodies. integrity of the oversight process, a PAB individual from serving on a PAB.
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of the work of these committees. Should we revise the criteria or ratios We solicit comment on the proposal Because the PAB would be more set forth above? Is the two-year to require that the Chairman and the involved than the POB had been in parameter regarding employees of an Vice-Chairman be public board evaluating each review report, accountant’s professional organization members and that at least one of them determining the appropriateness of appropriate? Would revising the criteria serve on a full-time basis. Is this attendant recommendations for result in a board dominated by public requirement appropriate? Is it improvements in quality controls, members? Is the rule setting the ten-year appropriate to limit the chairmanship directing reviews of larger firms, and parameter appropriate to ensure that the and vice-chairmanship to the public performing similar functions, we believe board has appropriate representation to members? Is it necessary or appropriate that some minimal professional fulfill the goals of the proposals? Are to accomplishing the purposes of a PAB representation on the PAB is there other qualifications or restrictions that the Chairman or the Vice-Chairman appropriate. We have taken the added on board members that ought to be be required to serve full time? Should precaution, in proposed rule 13– addressed by Commission rule? more than one board member be 04(g)(5), however, of stating that only Does the rule appropriately define required to serve full time, and if so, public board members, and not any accountant members and public does it matter which board member(s)? accountant or retired accountant board members or is some other definition Should we require the PAB to monitor members, may participate in any vote more appropriate? We have indicated a and report to us on the time spent by on whether to institute a disciplinary person may be a ‘‘public’’ member of a PAB board members on PAB matters? proceeding, or any vote on the findings PAB if he or she has not been an Should requirements short of full-time or sanctions to be imposed in any such accountant within the last ten years. Is service be placed on the percentage of proceeding. ten years too long? If a different period time some or all the remaining board Under the proposed rule, the is appropriate, what period should it be? members devote to a PAB? remainder of the PAB board members We solicit comment on allowing a Another essential attribute for any would be public members. A PAB may small number of accountants to be on a entity applying to be a PAB, as reflected have as many public members as it PAB. Should we require, rather than in proposed rule 13–03(b)(4), would be believes are appropriate and necessary permit, that a certain percentage of adequate staff and facilities, and the to fulfill its duties under Article 13. board members be accountants? ability to hire consultants or advisers, Public members should represent the Whether mandatory or permissive, is necessary to carry out the purposes of interests of individual investors, the one-third standard appropriate, too Article 13. We anticipate that the institutional investors, and issuers. We high, or too low? Why? Is it appropriate professional staff of a PAB would anticipate that the public members may to limit the number of accountants to include accountants with extensive include, among others, former public three, no matter how large the board? experience in auditing and in the officials, lawyers, bankers, institutional Should there be no accountants structure and operation of firms’ quality investors, securities industry executives, permitted to be on a PAB, or is their control systems. These individuals must academics, economists, and business expertise necessary for a PAB to carry be able to assess the quality of audits executives. out its mission? and detect flaws in complicated quality Each public member should have a Under proposed rule 13–04(b)(2) control systems. They must be able to background that permits him or her to members would serve staggered terms in structure plans for reviewing firms’ make a contribution to the operations of order to ensure continuity of operations. quality controls, put those plans into the PAB. Having been, at some point in The proposed rule does not set the action, and conduct or supervise his or her career, an accountant who duration of terms or impose term limits reviews that yield tangible audited or reviewed financial on members. While the proposed rule improvements in the audit process. We statements that were filed with the leaves these matters to the PAB’s also envision a PAB having a sufficient Commission, or a partner or employee discretion, we believe that three-year legal staff to facilitate effective of an accounting firm that performed terms with some term limit, perhaps disciplinary proceedings and provide those functions, would not necessarily nine years, is appropriate. Such a term sound advice on legal, procedural, and preclude a person from being a public limit would allow new members with regulatory matters. member. To assure that such a member fresh ideas to make a contribution. We We solicit comment on the proper is, and is perceived as a public member, solicit comment on board terms. Should make-up of a PAB’s staff. Should the the proposed rule would require that he terms be staggered? Why or why not? proposed rules provide additional or she not have practiced as an Should the rule specify term limits and requirements regarding a PAB’s staff or accountant or been a partner or length of terms? If so, what would be an the means, capacity, and plans to hire employee of an accounting firm for at appropriate term and limit. For that staff? Should a PAB be required to least the ten-year period immediately example, would a three-year term and report to the Commission with respect before joining the PAB. We believe that nine-year limit further the goals of the to staff resource issues? If so, how often, an individual with such a prolonged rules? and what should the reports entail? We separation from practice and from Serving on a PAB would be a serious have designed the composition of the accounting firms, and with the and time-consuming task. We have board to provide assurance that a PAB intervening experiences gained in other proposed in rule 13–03(b)(3) that a would administer competently the professional endeavors, should not be PAB’s Chairman and Vice Chairman proposed rules and that the public presume to be a representative of the would be selected from among the members would dominate the activities accounting profession. public members and that at least one of of a PAB. We request comment on all We request comment on the these individuals would serve on a full- aspects of our proposed structure for the composition of the board. Should the time basis. We envision that the composition of a PAB, and on whether proposed rule set the number of board remaining PAB members would devote a PAB, as proposed, would be able to members? If so, what number is approximately 20 to 25 percent of their carry out its mandate effectively. appropriate to accomplish the goals of professional time to PAB activities. A During our Roundtable discussions, the rules? We also request comment on PAB’s rules could provide for additional Neil Lerner, a partner in the United the board membership requirements. full-time members. Kingdom (‘‘U.K.’’) KPMG accounting
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firm, discussed the professional require a PAB to have in its charter and Under proposed rule 13–04(d)(3), a PAB oversight system recently adopted in bylaws? would require its member-accountants that country.90 The UK system uses a to comply with their quality control Rules, Membership Requirements, series of boards, each having a majority systems in a way that provides Systems, and Procedures of non-accountant members, to oversee reasonable assurance of conforming the setting of professional standards and Proposed rule 13–04(d) describes with professional standards. A PAB to discipline inappropriate professional certain rules, membership requirements, would also, under proposed rule 13– conduct. We solicit comment on this systems, and procedures that a PAB 04(d)(4), develop and administer a and similar comprehensive regulatory must have in place to be recognized by continuing quality control review approaches and the extent to which the Commission. A PAB would need to program for its members concerning such systems may be the basis for the have these requirements in place, at a accounting and auditing practices, and regulatory system used in the United minimum, in order to achieve the goals adherence to Commission and States. set forth in proposed section 13–03(c). professional auditor independence These rules, requirements, systems, and requirements. The requirements for the Charter and Bylaws procedures would accomplish the quality control review program are set Proposed rule 13–04(c) sets certain following: out in proposed rule 13–04(f), discussed requirements for a PAB’s charter and Enrollment Procedures. Proposed rule below. bylaws. First, to limit the potential for 13–04(d)(1) would require a PAB to We solicit comments on the proposed excessive or unnecessary fees, proposed provide for membership enrollment rules concerning a PAB’s requirements rule 13–04(c)(1) requires the charter and procedures that: (1) minimize the for members concerning quality control bylaws to provide that the entity will be administrative burden on individual systems. Should a PAB have any other a not-for-profit entity. Second, to assure accountants by maximizing the extent to rules in place concerning its members’ that recusals, vacancies, or other factors which an accounting firm could satisfy quality control systems? do not result in a shift of voting power the requirements on behalf of its Retention of Documentation Related among the PAB members that would individual accountants, and (2) require to Audits and Reviews. It will be critical defeat public board member control of members and adjunct members to agree for a PAB to be able to review a PAB, proposed rule 13–04(c)(2) states to be bound by a PAB’s rules and documents relating to audits performed that the entity’s charter or bylaws must membership requirements. The and accordingly, it will be important for include quorum provisions ensuring proposed rule allows a PAB latitude to a PAB to have clear and effective that the public members can control the determine the best approach to enrolling requirements regarding record retention. outcome of each vote by PAB members. accountant-members, consistent with Under proposed rule 13–04(d)(5), Third, under proposed section 13– our requirement to minimize any Commission recognition of a PAB 04(c)(3), in order to obtain Commission burden on individual accountants. We would be conditioned on a PAB having recognition, a PAB’s charter and bylaws expect that a PAB could adopt in place rules, membership must provide that it will be subject to, enrollment procedures that allow an requirements, systems, or procedures and act in accordance with, Commission accounting firm to enroll automatically that would direct each member firm to oversight as described in proposed all of its individual accountants by retain documentation related to the section 13–04(i). Finally, proposed rule providing a PAB with a list of their firm’s audit and review engagements for 13–04(c)(4) provides that a PAB’s names. This would eliminate any a set period of time after completion of charter and bylaws must provide for administrative burden on individual the engagement, and in accordance with immediate effectiveness of any changes accountants. The proposed rule also such other policies as a PAB may that the Commission makes to the PAB’s reflects our intention that all members establish. The records to be kept would rules. As discussed below, proposed and adjunct members be made aware of include those required by the rule 13–04(i)(1) allows the Commission, their obligation to comply with a PAB’s professional auditing literature,91 and by rule, to abrogate, add to, and delete rules and membership requirements. records that otherwise document the We solicit comment on our proposals from the rules of a PAB. In order for any procedures performed and the concerning PAB enrollment procedures. such Commission rulemaking to operate resolution of material issues during the Should our rules allow a PAB more or efficiently, the PAB’s charter or bylaws engagement. Record retention policies less flexibility in this area? Are there must make these changes effective with and the period of time for the records ways to reduce further administrative or without further action by the PAB. to be kept would be determined by a We request comment on our proposals burden that could be specified in our PAB under its rulemaking process. concerning a PAB’s charter and bylaws. rules? Should an entity that is an audit We request comment on the Should a PAB be required to be a not- client of a PAB member accountant be requirement for a PAB to direct its for-profit entity? Could a for-profit required to file an application or other member firms to retain certain entity achieve the purposes and goals of information with a PAB? documents. Are the categories of records Quality Control Systems. Proposed proposed Article 13 as well as, or better the proposed rules would require a PAB rules 13–04(d)(2)-(4) concern a PAB’s than, a not-for-profit entity? Are the to direct its members to retain quality control system requirements for other proposed requirements for a PAB’s appropriate? Should we be more its members. Under proposed rule 13– charter and bylaws necessary or specific in our rules with respect to 04(d)(2), a PAB’s rules would require appropriate to achieve the purposes and either which documents must be member-accountants to maintain a goals of proposed Article 13? Are there retained or for how long? If so, please system of quality controls for their more appropriate and effective means be specific about the types of documents accounting and auditing practices for addressing these issues other than and the length of time. designed to meet requirements set or through a PAB’s charter and bylaws? Supplemental Reviews, Disciplinary designated by a PAB. At a minimum, a Are there other items that we should Proceedings, and Dispute Resolution PAB would set or designate quality Procedures. Under proposed rule 13– 90 SEC Roundtables, supra note 8, at 40–41 (Mar. control requirements that would 6, 2002) (statement of Neil Lerner, Head of Risk encompass those described in proposed 91 See generally, SAS No. 96, AU § 339 (as revised Management (U.K.), KPMG). section 13–04(e), discussed below. 2002).
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04(d)(6), Commission recognition of a influenced by, the profession. particular approaches to billing and PAB would be conditioned on a PAB Accordingly, under proposed rule 13– payment arrangements that would work having rules and procedures for 04(d)(9)(i), a PAB would impose fees on best? Should our rules more specifically conducting supplemental reviews and both member accounting firms and on prescribe those arrangements? Should disciplinary proceedings in accordance registrants who are adjunct members, to adjunct members contribute to the with the criteria set out in proposed rule fund the operations and administration funding of these reviews? 13–04(g), discussed below. Under of the PAB. A PAB would be Funding for the FASB. Proposed rule proposed rule 13–04(d)(7), a PAB would encouraged to adopt schedules that 13–04(d)(9)(ii) indicates that a PAB need to provide procedures for provide for different classes of firms and would collect fees sufficient not only to requesting documents and testimony registrants to pay different fees, such fund its own operations but also to fund relevant to any PAB review or that the fees would not impose unfair or the operation and administration of an proceeding as described in proposed disproportionate burdens on any one accounting standards-setting body rules 13–04(f) and 13–04(g). We expect firm or registrant. We also would expect endorsed by the Commission as the that a PAB will adopt rules and that the fee structure would not result primary source for generally accepted procedures in this area that are fair to in the PAB being overly reliant on any accounting principles. Today that body all concerned while appropriately class of firms or registrants for its is the FASB. reflecting the need for strong revenues. The PAB would determine the The FASB currently receives most of enforcement mechanisms. most appropriate method for collecting its funding from two sources—sales of We solicit comments on our proposals the fees. its publications and the receipt of regarding PAB procedures for Each accounting firm, however, voluntary donations.92 Because disciplining and sanctioning member should bear the cost of its own quality accounting firms and corporations accountants, and resolving disputes control reviews. Proposed rule 13– purchase a significant portion of FASB’s with members and adjunct members. 04(d)(10), therefore, would provide for publications and make the majority of Should our rules provide more or less each firm to pay fees to the PAB, the voluntary donations to the FASB, flexibility for a PAB in this area? Should separate and apart from the fees these two groups have significant we specify procedures for a PAB to determined according to the schedules influence over the funds available to the resolve disputes with its members and discussed in the preceding paragraphs, FASB. By reducing donations, or by adjunct members about fees, documents that are sufficient for the PAB to recover reducing the volume of their purchases, or testimony? Should we specify its costs and expenses related to each they have the potential to impact the procedures, in addition to those quality control review of that firm funds available to the FASB. described in proposed rule 13–04(g) pursuant to proposed rule 13–04(f). The During debates of controversial below, for disciplining and sanctioning review of a large firm’s quality controls accounting proposals, perceptions may member accountants? If so, what may cost in excess of a million dollars. arise that a corporation or accounting specific procedures would be It would be inappropriate, in our view, firm, or groups of corporations or firms, appropriate? to have smaller or competing firms could use donations and sales volume to Conflicts of Interest. Under proposed shoulder part of those costs. influence the FASB’s decisions on rule 13–04(d)(8), a PAB would adopt We request comment on our proposals substantive accounting issues.93 To appropriate policies to address any concerning funding for a PAB. Are there remove such possibilities, and to conflicts or potential conflicts of interest alternative funding mechanisms that increase the stature, neutrality, and that may arise involving the PAB’s would better achieve the goals and perceived independence of the FASB, board members, employees, contractors, purposes for which a PAB would be we have proposed that the FASB, and professional representatives. Even established? The proposed rules permit through fees paid to a PAB, have a the appearance of a conflict of interest a PAB to impose fees on its members mandatory and continuous source of can damage investor confidence. and adjunct members, but the proposed funds. Accordingly, we expect a PAB to devote rules do not describe in detail how such Accordingly, we anticipate that a PAB careful attention to this area, and adopt fees should be set or collected. Should would receive a proposed budget from policies that reassure investors that the we be more specific, or should such the FASB and the PAB would include PAB is acting in the public interest. matters be left to the discretion of the the amount required to fund the FASB We solicit comments on our proposal PAB? in determining the fees to be collected concerning a PAB’s conflict of interest The proposed rules would require a from accounting firm members and policies. What conflicts of interest are PAB to impose fees on each member registrant-adjunct members. After likely to arise? Will a PAB be able to firm to reimburse it for the costs collection, a PAB would pass those adopt policies to address these associated with the quality control funds to the FASB.94 We anticipate that conflicts? Do we need to be concerned review of the firm. Under our proposals, the Financial Accounting Foundation about an appearance of conflict? If so, firms with 70 or fewer SEC Clients (‘‘FAF’’), which is a private sector body should we revise the proposed rules to might undergo quality control reviews address better eliminating perceived performed by other accounting firms. 92 Financial Accounting Foundation, High- conflicts of interest? Should we require The PAB would impose fees on the Quality Financial Reporting: 2001 Annual Report, at 29, which indicates FASB received net a PAB to adopt specific rules in this area reviewed firm related to the PAB’s contributions of $5,113,000 and subscription and or should we allow a PAB to develop its evaluation and oversight of the review. publication sales of $14,818,000; its direct costs of own rules? What specific rules, if any, The reviewed firm, however, might pay sales was $1,586,000. should we require? the reviewer directly. Is the fee 93 See, e.g., Stephen Barr, FASB Under Siege, CFO Magazine, Sept. 1994, at 34, 46; Dean Foust, It’s Funding for a PAB. As noted above, provision appropriate? Should each firm Time to Free the FASB Seven, Bus. Wk., May 3, a mandatory and continuous source of bear the approximate cost of its own 1993, at 144. funds is critical to the independence quality control reviews, or should these 94 In the event that more than one entity obtains and viability of a PAB. A PAB should costs be spread evenly among firms? Are Commission recognition as a PAB, as we anticipate that the FASB would receive funding through each not be dependent solely on the there advantages or disadvantages to a PAB according to a formula that takes fair account accounting profession for its funds or it system in which each firm bears the of any significant difference in the size of the may be viewed as beholden to, and costs of its own reviews? Are there various PAB’s membership.
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comprised of representatives of the above in connection with the definition Commission when any such request is business, professional, and academic of ‘‘delinquent,’’ we would expect a made. communities that selects FASB PAB to take very seriously the need for Under proposed rule 13–04(d)(13), a members and handles financial matters fair procedures to resolve any good faith PAB would also request that matters be for the FASB,95 would continue to play disputes. added to the agendas of private sector a significant oversight role in The proposed rule also specifies the bodies that set accounting or determining the FASB’s budget.96 need for a PAB to have procedures for independence standards, and similarly We request comment on our proposal providing appropriate notice to member notify the Commission of each such concerning funding for the FASB. accountants, adjunct members, the request. Under proposed rule 13– Should fees collected by a PAB be used Commission, and the public, of any 04(d)(14), a PAB also would sponsor to fund the FASB? How would an action that could result, or has resulted, meetings with and among private sector appropriate amount of fees for such a in suspension or bar of a member standard-setting bodies to coordinate purpose be determined? Is it sufficient accountant, or any other loss of good their activities and to promote the to rely on the FAF to assist in the standing by a member accountant or an sharing of information and effective preparation of the FASB’s budget or adjunct member. The PAB’s rules and communications.97 These meetings should the FASB be required to submit procedures should be designed to would include not only the bodies an annual budget to the PAB? Our balance a member or adjunct member’s involved in setting audit, quality proposal anticipates full funding for the legitimate interest in keeping certain control, and ethics standards, but also FASB, with the FASB appropriately disputes nonpublic (such as may occur accounting standard-setting bodies, the reducing or eliminating the cost of its during a nonpublic PAB supplemental Commission staff, and any other persons publications. Should the FASB, review) with the need to provide the that the PAB considers appropriate. however, continue to generate revenues public, including an accountant’s audit We request comments on our from the sale of its publications, and clients, with sufficient notice of an proposals regarding professional replace only the donations it receives accountant’s potential loss of good standards. What is the proper role of a with fees collected by a PAB? Would a standing before actually revoking good PAB in standard setting? Should a PAB have the ability to set standards? Should PAB collect fees to fund the FASB in a standing. In addition, it is pursuant to it have the ability to designate which different manner than the fees used to this proposed rule that a PAB must have bodies would be considered fund the PAB’s operations and, if so, procedures for providing actual notice authoritative? We request comment on how should the fees to fund the FASB that a member accountant or adjunct the proposed role of a PAB in be collected? Should registrants and member has been determined to be contributing to the agenda of private accounting firms be required to join the delinquent. FAF so that the FAF may directly sector bodies that set accounting or We request comments on our impose fees to fund the FASB? independence standards and in proposals regarding these notices. In addition to raising funds for the coordinating among standard-setting Should the proposed rules be more FASB, the FAF raises funds for the bodies. Are these appropriate and useful specific about when these notices would GASB, which sets financial accounting roles for a PAB to play in satisfying the be required, or about the content of the and reporting standards for state and goals and purposes sought through notices? If so, when should the notices local governmental entities. Financial proposed Article 13? Are there more be required? For example, would it be reports prepared under GASB may be specific or additional roles that a PAB appropriate to require a 90-day notice the basis for investment, credit, and ought to play in this regard? Should the period before a PAB makes a public regulatory decisions. Because GASB has Commission approve the bodies determination that a member or adjunct not been in existence as long as FASB, designated by a PAB before those bodies member is delinquent? What should the more of its funding is derived from are considered authoritative? private contributions. Costs associated notices say? Open and Deliberative Process. A with GASB are discussed in the Cost- Professional Standards. For a PAB to PAB’s process for amending governing Benefit Section of this Release. Should be effective, it must be able to address documents, rules, membership a PAB collect fees to fund GASB as well not only personnel and systems failures requirements, and procedures would as FASB? in accounting firms, it must be able to include an open and deliberative Fair Dispute Resolution Procedures address poor quality or vague standards rulemaking process with open meetings and Notices of Delinquencies. Under that lead to deficient audits. When a and publication for public comment of proposed rule 13–04(d)(11), PAB sees a need for new or revised draft rules, requirements and Commission recognition of a PAB standards, it must have a means to procedures. Allowing for public input would be conditioned on the PAB assure those standards are adopted and would enhance public confidence in a having fair procedures for disciplining that other standard-setters, to the extent PAB’s process, and improve the quality and sanctioning accountants and for appropriate, conform their standards to of a PAB’s governing documents, rules, resolving disputes with member facilitate the correction of the problem. membership requirements, and accountants and adjunct members Accordingly, a PAB, under proposed procedures. Accordingly, we have concerning fees, document requests and rule 13–04(d)(12), would either set, or addressed the need for such processes requests for testimony. As discussed designate private sector bodies to set, in proposed rule 13–04(d)(15). audit, quality control, and ethics We request comment on the 95 The FAF is comprised of 16 Trustees standards. If it chooses to designate importance of an open and deliberative representing a broad range of professional private sector bodies to set such backgrounds. The FAF currently has rulemaking process for a PAB. What responsibilities for FASB and the Government standards, then a PAB would oversee Accounting Standards Board (‘‘GASB’’), and for the designated bodies by attending 97 See, e.g., The Panel on Audit Effectiveness, their Advisory Councils, including oversight of the meetings, commenting on proposed Report and Recommendations, at 141 (Aug. 31, standard-setting process, selection of FASB and standards, meeting as needed with each 2000), which emphasizes the need for effective GASB members, and arrangmenets for financing. communications among standard-setting bodies and 96 Further discussion of the history of the body, and, requesting that items be the bodies involved in disciplining accountants and Commission’s endorsement and oversight of FASB added to the private sector standard- conducting reviews of accounting firms’ quality can be found in Appendix B. setters’ agendas and notifying the control systems.
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goals does it serve in the context of a require training. Should we specify the may supplement or otherwise modify PAB? Should our rules specify the types particulars of a required training the quality control elements and of procedures that a PAB should employ program? What would be the specific requirements with other in rulemaking, or is this better left to a components of such a program? Should elements and requirements it deems PAB to decide? What matters should a our proposed rules require a specific appropriate. PAB be required to address only amount of training per year? How much ‘‘Independence, integrity, and through an open process? Are there training should be required? objectivity’’ policies address the firm’s circumstances we should provide for Other Duties or Requirements. Under relationships with its clients. under which issues concerning the proposed rule 13–04(d)(18), a PAB’s ‘‘Personnel management’’ refers to the amendment of governing documents, rules, membership requirements, criteria for the hiring, development, rules, membership requirements, and systems, and procedures would specify continuing education, advancement, procedures should be handled other that the PAB would perform such other and assignment of personnel. The than through such open processes? duties or functions as the Commission element related to the ‘‘acceptance and Full Faith and Credit. Under proposed determines are necessary or appropriate continuance of clients and rule 13–04(d)(16), a PAB would give in the public interest or for the engagements’’ is designed to provide ‘‘full faith and credit’’ to the sanctions protection of investors and to carry out reasonable assurance that the likelihood and good standing requirements of the purposes of proposed Article 13. of associating with a client’s another PAB. This would be necessary, This provision would allow the management that lacks integrity is if more than one PAB is formed, to Commission to oversee effectively a minimized. ‘‘Engagement performance’’ prevent an accountant from attempting PAB’s activities to make sure that the policies are intended to provide to avoid a sanction by one PAB by PAB is operating in accordance with the reasonable assurance that the firm resigning and joining a different PAB. proposed rules, and would allow for the complies with applicable professional possibility of marshalling a PAB’s This provision also notes that a standards and regulatory requirements. registrant may not avoid a finding that resources for special projects that fall And ‘‘monitoring’’ involves an ongoing it is in violation of a PAB’s good within its realm of responsibility. For evaluation of the relevance of the firm’s standing requirements (due to not example, in the past ten years, we asked policies, the appropriateness of the paying fees assessed by the PAB or not the former POB to study accounting firm’s guidance materials and practice providing requested testimony or firms’ quality control systems related to aids, the effectiveness of professional documents) simply by firing its current auditor independence, recent changes in development activities, and compliance accountant and engaging another audit techniques and practices, and with the firm’s policies and accountant that is a member of a various issues related to professionalism procedures.101 We believe that these different PAB. In such circumstances, and independence.98 We solicit elements continue to be essential to the new PAB would consider the comment on this provision. registrant to be not in good standing More generally, we solicit comment high quality accounting and auditing until the registrant remedied the on these rules and requirements. Should practice and should continue to be nonpayment of fees or delinquency in we include other requirements required. providing testimony or documents. necessary for the proper functioning of We request comment on conditioning We request comment on the proposed a PAB as we describe it? Are any of the Commission recognition on a PAB requirement to extend full faith and proposed requirements too onerous? requiring that its member accountants credit to another PAB. How would this Why? maintain a quality control system. We requirement work in practice? Will a stated that the controls should Quality Control Requirements requirement to extend full faith and encompass at least the current AICPA credit prevent attempts to avoid Proposed rule 13–04(e) conditions elements and certain SECPS sanction by resigning from one PAB and Commission recognition of a PAB on the membership requirements. Are these joining a different PAB? Should our PAB ensuring that its member elements appropriate to address the rules be more specific? accountants maintain a quality control concerns discussed in the release? Are Training. A key to maintaining system designed to meet the there other elements that we should professional competence is continued requirements of quality controls set or require a PAB to include as part of its training throughout an accountant’s designated as authoritative by the PAB. quality control system? career. Business and financial These controls should encompass at The specific quality controls that transactions, as well as audit practices, least the current AICPA quality control should continue to guide accounting change with ever-increasing speed. elements: independence, integrity, and firms’ accounting and auditing practices Accountants need to be able to keep objectivity; personnel management; include: abreast of these developments and adapt acceptance and continuance of clients • Rotating the partner in charge of an their skills. Under proposed rule 13– and engagements; engagement audit engagement at least once every 99 04(d)(17), therefore, we condition the performance; and monitoring. In seven years; 102 Commission’s recognition of a PAB on addition, the proposed rule conditions • Having a second-partner (one other the PAB providing training for, or Commission recognition on a PAB than the partner in charge of the audit imposing appropriate training requiring its members to maintain engagement) independently review the requirements on, its member certain specific quality controls, many audit report and the financial accountants in matters relating to of which are current SECPS statements,103 unless the PAB accounting, auditing, attestation, membership requirements.100 A PAB authorizes alternative procedures where assurance, ethics, independence, and quality controls. A training requirement 98 These projects are noted in Appendix A. should increase investor confidence that 99 AICPA, System of Quality Control for a CPA htt://www.aicpa.org/members/div/secps/ require.htm. audits are being performed effectively Firm’s Accounting and Auditing PRactice, ¶ 7, Quality Control (‘‘QC’’) § s20.07. 101 See supra note 99, QC §§ 20.07–20.20 and competently. 100 See generally, SECPS, Requirements of (description of each quality control eleemnt). We request comment on the proposed Members, items, e, f, h, i, k, m, n, o, and p. The 102 SECPS, Requirements of Members, at item e. requirement that a PAB provide or membership requirements are available online at 103 Id. at item f.
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this requirement cannot be met because function that has expertise in SECPS’s peer review process and of the size of the firm; accounting and financial reporting membership requirements to create a • Ensuring policies and procedures matters, and having policies and stronger, more diligent and independent are in place to comply with auditor procedures in place for: (1) Engagement system. Proposed rule 13–04(f) independence requirements and to partners and others to consult with that conditions Commission recognition of a refrain from providing to audit clients office, and (2) the resolution of PAB on the PAB having a continuing consulting services that are inconsistent differences of opinions between that program for the review and inspection with § 210.2–01 and conducting public office and engagement partners. of member accountants’ compliance opinion polls and merger and Proposed rule 13–04(e)(8) would with the PAB’s rules and membership acquisition assistance for a finder’s condition Commission recognition of a requirements and professional fee; 104 PAB on the PAB ensuring that member standards. • Reporting to the audit client and the firms maintain such a central office The frequency of the reviews of a SEC when the firm resigns, declines to function, but a PAB could authorize firm’s quality control system under stand for reelection, or is dismissed; 105 alternative procedures for firms that proposed rule 13–04(f)(1) would vary • Seeking to have foreign associated could not meet this requirement because based on the number of the firm’s SEC firms adopt policies and procedures of their size. We solicit comment on the clients. For each member firm with consistent with the objectives of the central office function requirement. more than 70 SEC clients, or such other proposed rules, and notifying the Would this requirement place a burden number of SEC clients as the PAB may Commission when any such firms have on those firms that do not already determine, the proposed rule would done so; 106 and maintain a central office function? require a PAB to conduct an annual • Ensuring the firm has policies and Would conditioning recognition on the review of the firm’s quality control procedures for reporting litigation or maintenance of a central office function system. For all other member firms, a government investigations or pose any competitive concerns? review would be conducted at least proceedings to the PAB,107 with a copy Finally, proposed rule 13–04(e)(9) once every three years. of the report to the Commission’s Office would condition Commission According to a recent computer run of of the Chief Accountant. recognition of a PAB on the PAB SECPS members, ten accounting firms We request comment on each of these ensuring that its members incorporate have more than 70 SEC clients.111 We items. Is a requirement to rotate a many of the procedures discussed by have chosen 70 SEC clients for the partner every seven years, for example, the Independence Standards Board in dividing line to ensure that those the appropriate time frame? Should a Independence Standard No. 3, accountants who audit the vast majority PAB be permitted to make any Employment with Audit Clients.109 This of registrants will be subject to very exceptions to these requirements in standard requires an accounting firm, frequent scrutiny by a PAB. We some cases? If so, under what when an audit client employs a former recognize that the number of firms with circumstances? firm professional, to take steps to more or less than 70 SEC clients, and In addition to the current SECPS eliminate the risk that the firm’s former the need to review more or fewer firms membership requirements, other partner or employee could, by reason of on an annual basis, may change over practices currently enhance investors’ his or her knowledge of or relationships time. Proposed rule 13–04(f)(1), confidence and contribute to improved with the firm, adversely influence the therefore, would provide a PAB with the audit quality. Under proposed rule 13– quality or effectiveness of the audit.110 discretion to change the number of SEC 04(e), Commission recognition of a PAB We request comment on the quality clients that would trigger an annual, as depends on the PAB requiring its control elements and specific opposed to a triennial, review. members’ quality control systems to requirements we have included in the Should a PAB conduct reviews more encompass these practices as well. For proposed rule. Should we require these or less often than annually for the larger example, proposed rule 13–04(e)(4) items, or should we defer to a PAB’s firms? Will triennial reviews for small essentially restates the requirement in discretion to devise quality control firms meet the goals of the proposed Independence Standard No. 1 regarding elements and requirements or to rules? Should a PAB have the discretion communications on auditor designate another entity’s as to alter these frequency requirements independence issues between an authoritative? If they should be retained, based on experience over time with the accountant and the audit committee of should any be omitted or should review process? If so, in what way, if 108 its audit client. additional procedures be added? Which any, should that discretion be guided by Another example of a beneficial ones? For example, should all partners Commission rules? practice is maintaining a central office who participate in a portion of the audit We also request comment on whether 70 SEC clients is the appropriate trigger 104 of a registrant’s financial statements be Id. at item h and o. for an annual review or whether a larger 105 Id. at item m. rotated periodically? Are there other 106 Id. at item n. As discussed elsewhere in this circumstances when we should require or smaller number of SEC clients would release, foreign accountants would be exempt from reporting to the audit client, a PAB, be more appropriate. Additionally, we the coverage of the proposed rules. The provisions and/or the SEC? What are they? Should request comment on the proposal to in this section is intended only to continue current the Commission provide greater or provide a PAB with discretion to alter practices, under the SECPS membership requirements, of encouraging foreign firms to lesser direction regarding the content of the 70 SEC client trigger/standard. improve their quality control systms. requirements set or adopted by a PAB? Should a PAB have that discretion? If it 107 Id. at items k and p. does not, how should developments Quality Control Review Program 108 Independence Standards Board, Independence over time and a PAB’s experience with Discussions with Audit Committes, Independence In section 13–04(f), we propose to the review process be factored into or Standard No. 1 (Jan. 1999), which requires the build on the most successful parts of the auditor to disclose to the audit committee, in accounted for in adjusting the trigger, as wiritng, relationships that the auditor believes may reasonably be thought to bear on auditor 109 See Independence Standards Board, 111 The same data, derived from a list obtained independence, confirm in the letter its Employment with Audit Clients, Independence from the SECPS, indicates that ten firms have independence, and discuss its independence with Standards No. 3 (July 2000). between 30 and 75 SEC clients and approximately the audit committee. 110 Id. 800 firms have fewer than 30 SEC clients.
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may be appropriate? If a PAB is granted to the extent those functions are deemed directed review, should a PAB be discretion to change the trigger, are necessary by a PAB. permitted to engage, on a contract basis, there factors the Commission should Under proposed rules 13–04(f)(5) a employees of firms that are not affiliated identify to guide the exercise of that PAB would direct and make all key with the firm being reviewed to do the discretion? decisions related to each review of a ‘‘leg work’’ on the review? We have firm that has over 70 SEC clients, or proposed that firms with 70 or fewer Proposed rule 13–04(f)(2) would such other number of SEC clients as the SEC clients may have quality control permit a PAB to direct its member firms PAB may determine. For firms with 70 reviews conducted under a review to make and keep records that are or fewer SEC clients, a PAB may permit program approved by a PAB. Should necessary for the conduct of the the reviews to be conducted by non- firm-on-firm reviews be allowed? If reviews. Proposed rule 13–04(f)(3) PAB staff, but only if the PAB: (1) firm-on-firm peer reviews are allowed, would make clear our expectation that Approves the review program; (2) should a PAB, as part of its oversight of a PAB would establish the policies and establishes policies and procedures for such a program, have veto power over procedures for conducting reviews, the reviews as well as for reporting the a firm’s selection of its reviewer? establish reporting requirements, and results of the reviews; (3) maintains Should these reviews be conducted by maintain public files. Under proposed public files related to the reviews; (4) teams of persons from one accounting rule 13–04(f)(4), a PAB would monitor monitors the program to insure that firm or should the teams include each review to ensure that it is reviews are conducted in a thorough members from several firms? What are conducted in a fair and impartial and impartial manner; and (5) evaluates the advantages and disadvantages of manner and that appropriate procedures each review to gain assurance that either team composition? Should firms are recommended and implemented to appropriate procedures are being employ staff members dedicated, at least correct any noted deficiencies in a recommended and implemented to on a part-time basis, to PAB quality timely and effective manner. correct any noted deficiencies in a control reviews? We request comment on all aspects of timely and effective manner. Proposed rule 13–04(f)(6) provides our proposals regarding quality control We request comment on whether a that a PAB or approved reviewer would reviews, including on the elements of a PAB should be permitted to use examine various offices and personnel strong quality control review program. approved review programs. The five within the firm. It also would require a How can a PAB best assess compliance items listed should help to make sure PAB or reviewer to determine whether that such programs operate effectively. of its members with rules of a PAB and the firm’s quality control system is Are there any other requirements that with professional standards? How can a appropriate, whether adequate should be added to this list before a PAB best assess compliance of documentation and communication of PAB may permit reviews under a review quality control policies and procedures individual accountants associated with program? If review under a program is exists within the firm, and whether a firm? permitted, should a PAB, as part of its those policies and procedures provide If a PAB program would be compared oversight of such a program, have reasonable assurance of compliance to the peer review program that control or veto power over the reviewer? with the Commission’s rules, the PAB’s currently is conducted under the Under proposed rule 13–04(f)(5)(i), in rules and membership requirements, auspices of the AICPA, we would expect performing a PAB-directed review, the and professional standards. Under that the PAB and its staff would perform PAB may engage accountants from one proposed rule 13–04(f)(7), a PAB or the functions related to peer reviews or more non-associated firms to work on reviewer would prepare a report of its that currently are performed by the Peer the review. As noted above, however, all findings and comments during each Review Committee,112 the SECPS key decisions must be made by the PAB. review. Each report and any response Executive Committee,113 and until We are proposing to allow the PAB to provided by the reviewed firm would be recently the POB and the POB staff,114 engage such accountants to assist in available to the public. doing the ‘‘leg work’’ of the reviews, so We solicit comments on the 112 The Peer Review Committee administers the that a PAB may decide whether to hire appropriate scope of a review and the peer review program, establishes standards for a larger permanent staff or to contract type of report and access to the report conducting peer reviews, establishes standards for for additional support on reviews as that should be established by the rules. reports on peer reviews and publication of such needed. Any accountants engaged to reports, requests the SECPS Executive Committee to assist the PAB in conducting the Supplemental Reviews and Disciplinary appoint a hearing panel when it believes that Proceedings sanctions should be imposed on a member firm for reviews would perform only assigned failure to comply with membership requirements, functions and be supervised by the PAB In proposed rule 13–04(g) we have keeps records of peer reviews, and establishes and or its staff. created the framework for a disciplinary maintains a public file for each member firm, which includes the firm’s three most recent annual Should a PAB be permitted to engage process that for the first time would add reports, the latest peer review report, the reviewer’s accountants to work on a review? If so, teeth to the quality control review letter of comments, and the firm’s response. See what is the scope of functions that process. Under this proposal, the PAB AICPA, Governing Bodies at: http://www.aicpa.org/ accountants engaged to assist a PAB in could suspend or bar an individual or members/div/secps/bodies/index.htm. conducting reviews should be permitted firm from being a member of a PAB or 113 The SECPS Executive Committee, among other things, establishes requirements for membership in to perform? Should there be other impose other remedial or disciplinary the SECPS and determines sanctions to be imposed limitations or requirements on the sanctions, as it believes appropriate. on member firms for failure to comply with the accountants that may be engaged to Such a proceeding might be based on an SECPS’s membership requirements, ordinarily assist a PAB in conducting a review? individual accountant’s incompetent or through the appointment of hearing and appeals panels. Id. Would it be practical, and would a PAB unethical conduct, other acts or 114 The POB and the POB staff, among other be able to obtain the necessary omissions that constitute a failure to things, monitored and evaluated the effectiveness of expertise, if it had to conduct all or a comply with professional standards, or the Peer Review Committee and the SECPS significant portion of reviews for violations of the PAB’s rules or Executive Committee and determined whether the Peer Review Committee was ascertaining that firms exclusively with its own staff? Should a membership requirements. A were taking appropriate action as a result of PAB direct the reviews, and make all proceeding against a firm might be findings during peer reviews. Id. key decisions for all reviews? In a PAB- based on the issuance of an adverse
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review report, which indicates that the limitations, and controls should apply We request comment on the firm’s quality controls, or compliance to a PAB’s exercise of its disciplinary requirement that a PAB establish with those controls, are deficient and powers? Should the rule provide more procedures for disciplinary proceedings. fail to provide reasonable assurance that specific limits on the circumstances in Should our rules be more specific with the firm is complying with professional which a PAB may pursue a respect to the procedures a PAB must standards during its audit, review, or supplemental review? establish, such as specifically providing attest engagements. A PAB could also If a PAB becomes aware of for appropriate burdens of proof or institute disciplinary proceedings information indicating that a violation evidentiary rules? We request comment against a firm or an individual for of the securities laws has, or is likely to on the ability of a PAB to institute conduct that comes to the attention of have, occurred, then under proposed disciplinary proceedings and a PAB other than through the quality rule 13–04(g)(2) the PAB would notify supplemental reviews, and on the control review. the Commission. As noted above, we procedures proposed for those Proposed rule 13–04(g)(1) conditions intend to continue to address instances proceedings and reviews. Under the Commission recognition of a PAB on the of violations of the securities laws and proposal, disciplinary proceedings PAB having rules, membership other conduct through our enforcement would be public. Are there reasons that requirements, systems, and procedures, efforts, including enforcement of Rule all disciplinary proceedings, certain incorporating the criteria described in 102(e) of our Rules of Practice. categories of disciplinary proceedings, this section, pursuant to which it could Violations of the securities laws and or certain portions of disciplinary institute public disciplinary other actionable conduct should not go proceedings should not be public, or as proceedings to determine whether an unaddressed because they are detected to which a PAB should have discretion accountant has violated PAB rules or during a quality control review as to make them non-public? Is providing membership requirements, or opposed to coming to light through a PAB discretion to close a disciplinary professional standards, and to impose another means. While we recognize that proceeding, but only with prior sanctions. Prior to making a some may fear that such a referral Commission approval, an appropriate determination to institute a disciplinary procedure could have a chilling effect response to these situations, given that proceeding, under proposed rule 13– on the review process, to provide it may not be possible to foresee all 04(g)(1)(ii) a PAB may, on the basis of otherwise would be contrary to our possible contingencies? information suggesting such a violation, mandate under the securities laws. In We are not proposing to prescribe the engage in a nonpublic ‘‘supplemental light of the balance between these details of the hearing process. A PAB, if review’’ process of gathering interests, we request comment on it chooses, may have independent, non- information relevant to its whether we should require that a PAB accountant hearing officers conduct a determination of whether to institute a notify the Commission of information hearing and recommend findings and disciplinary proceeding. indicating that a violation of the sanctions to the PAB, in a manner not The supplemental review process securities laws has or is likely to have dissimilar to the process used by the would be an important part of the PAB’s occurred. Would this referral procedure NASD. Alternatively, it may require a mission. We would expect a PAB to affect the review process? If so, how? panel of PAB members, with the advice pursue a supplemental review on the Further, to ensure that there is not of legal counsel, to conduct the basis of any information suggesting the unnecessary duplication of effort or hearings, or it may adopt rules and possibility of the type of violation burden on a party, and to retain the procedures for other suitable described above, whether that Commission’s control over the proceedings. Should we require a information comes to a PAB through a enforcement of the securities laws, we particular process in this area? routine quality control review or propose that a PAB could only institute At a minimum, however, under otherwise. Some supplemental reviews a disciplinary proceeding regarding that proposed rule 13–04(g)(3), a PAB should might be very brief, with PAB staff information after notifying and provide its members with procedural satisfying itself in the course of a single consulting with the Commission. We safeguards similar to those required by interview that there is no basis for solicit comment on whether the statute in proceedings conducted by the inquiring further, while other Commission should prohibit a PAB’s securities exchanges and the NASD. supplemental reviews could be institution of a disciplinary proceeding These include notice of specific charges, complex, requiring careful in this manner. Are there alternative an opportunity to defend against the consideration of a large amount of ways to achieve the purposes of this charges, a record of the proceedings, information to make a responsible limitation? Should a PAB have broader and an explanation of the grounds for decision about whether to institute a discretion and disciplinary powers to any sanction imposed.116 As noted disciplinary proceeding. Proposed rule conduct proceedings related to above, we believe that to have a credible 13–04(g)(4) provides that a PAB may violations of the securities laws? process and protect the interests of both request relevant testimony and Under proposed rule 13–04(g)(3), a investors and accountants, these documents from any person in PAB must establish fair procedures for proceedings should be public to the connection with a supplemental review supplemental reviews and disciplinary or a disciplinary proceeding. proceedings. The rule also would proceedings shall be public unless the Commission We request comment on the proposed require a PAB’s disciplinary proceeding otherwise directs, and stated that the reasons supplementary review and disciplinary to be public unless otherwise ordered by supporting public proceedings against accountants mechanisms. Under what circumstances the PAB with the prior approval of the include that disciplinary proceedings against should a PAB exercise this power? broker-dealers and other market professionals are Commission. We intend for a PAB’s public, that private proceedings create an incentive Should a PAB have the power to disciplinary proceedings to be open and for delay, that there is considerable public and suspend or bar an individual or firm transparent to the same extent that our professional interest in such proceedings, and that from being a PAB member? Should the public proceedings are more favored in the law than Rule 102(e) proceedings are open to the are closed proceedings. See Disciplinary rules set forth detailed requirements 115 public. Proceedings Involving Professionals Appearing or regarding the procedures that a PAB Practicing Before the Commission, Release No. 33– should employ before exercising 115 See 17 CFR 201.102(e)(7). In 1988, the 6783 (July 7, 1988), 53 FR 26427 (July 13, 1988). disciplinary powers? What procedures, Commission amended Rule 102(e) to state that 116 See, e.g., 15 U.S.C. 78o–3(h).
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same extent as our Rule 102(e) limitations on an accountant’s activities, accounting firms provide diverse and proceedings. including requiring resignation from a varied services, it is possible for a firm We request comment on which specific audit, review, or attest to retain an individual to perform safeguards, if any, a PAB should provide engagement; suspend or bar an services that are unrelated to audits, to its members. Are there additional accountant from participating in any reviews, or attest services for safeguards that any final rules should SEC audit, review, or attest engagement; Commission registrants. Under this require a PAB to provide? Are there impose fines and censures; and impose provision, however, the firm would safeguards that we propose that are any other appropriate sanction. notify the PAB of its relationship with unnecessary and would impede a PAB’s The Commission requests comment the sanctioned individual and ability to accomplish the goals and on whether these are appropriate undertake procedures to make sure the purposes of Article 13? Should the sanctions. Should our rules be more or terms of the sanction, order, or ruling Commission provide more guidance or less specific with respect to the are not violated. We request comment detail regarding the safeguards it sanctions and remedial actions a PAB on these proposed requirements. Is it proposes or may adopt in this proposed could take? If so, how? necessary or appropriate to the rule? To provide heightened transparency accomplishment of the goals and Under proposed rule 13–04(g)(4), in the disciplinary process, proposed purposes of Article 13 for a member Commission recognition of a PAB is also rule 13–04(g)(7) would provide for a accounting firm to provide notice if the conditioned on the PAB having rules PAB to issue a public written report individual is not going to perform any pursuant to which it may request that whenever it imposes a sanction. Copies audit, review, or attest services for any person provide documents or of the report would be provided to the registrants? Should the requirement to testimony relevant to any supplemental Commission and to any state or foreign provide notice take into account reviews or disciplinary proceeding. We financial regulatory authorities, with whether the sanctioned person would have not proposed any provisions which the individual or firm is licensed, perform services unrelated to audits of pursuant to which a PAB could require registered, or certified to practice public Commission registrants? Should the production or testimony from anyone accounting. Each report would name the firm’s requirement to notify a PAB of its who is not a member or adjunct member accountant being sanctioned, describe relationship with the sanctioned person of the PAB. the acts or omissions on which the be a one-time or continuous Are there appropriate mechanisms sanction is based, describe the nature of requirement? that could be included in the rule to the sanction, and contain such other Rule 102(e)(2) of the Commission’s increase the PAB’s ability to obtain information as the PAB deems Rules of Practice states that any person documents and testimony? Should the appropriate. We request comment on whose license to practice as an rule limit the circumstances under the persons to whom the report should accountant has been revoked or which, or the methods by which, a PAB be sent, whether it should be public, suspended in any state, and any person should be permitted to seek documents and what information it should contain. who has been convicted of a felony or and testimony? In addition, we solicit comment on a misdemeanor involving moral Proposed rule 13–04(g)(5) states that whether public reports, either on a case- turpitude, shall be forthwith suspended PAB board members who are not public by-case basis or otherwise, should be from appearing or practicing before the members would not vote on any provided when a PAB determines that Commission.117 Should proposed rule disciplinary matters (but could be no sanction should be imposed, and, if 13–04(g)(9), if adopted, include a consulted in connection with so, what those reports ought to include. provision that any person barred, supplemental reviews and disciplinary Under proposed rule 13–04(g)(8), if a suspended, or expelled from proceedings). Placing the outcome of PAB is unable to complete a proceeding membership in a PAB shall be forthwith disciplinary matters solely in the hands because of the refusal of any person to suspended from appearing or practicing of representatives of investors and provide testimony or documents or before the Commission? Should we issuers would serve to enhance investor otherwise to cooperate with the PAB, include such a provision in Rule confidence that their interests are being then the PAB would report that refusal 102(e)(2)? protected. to the Commission. Further, where the Is this proposed restriction on voting uncooperative party is a registrant, the Public Reporting in disciplinary matters to the public PAB would additionally report the To facilitate our oversight and to board members appropriate in light of refusal to any market or exchange on provide transparency regarding a PAB’s the importance of assuring investor which that registrant’s securities are operations and processes, we would confidence in these proceedings? Are traded. Under this proposed rule, a PAB encourage a PAB to make as much there circumstances when the also may refer any other matter to the information available on a ‘‘real-time’’ accountant board members should be Commission that it deems appropriate. basis as possible. Under proposed rule able to vote? Should further or other We solicit comments on the reporting 13–04(h), a PAB would report to the limitations be placed on the and referral provisions in proposed rule Commission and the public at least participation of accountant board 13–04(g)(8). Among other matters, annually, and where practicable on a members with regard to disciplinary should the Commission provide current basis: proceedings or supplemental reviews? guidance or details regarding the timing • A description of its quality control For example, should consultation be and content of those reports and review and disciplinary activities; prohibited as well? If so, why? referrals. Are there other circumstances • Annual audited financial Under proposed rule 13–04(g)(6), if a when a PAB should report to the statements; PAB finds in a disciplinary proceeding Commission or to an exchange or • An explanation of fees and charges that an accountant has violated rules or market on which a registrant’s securities imposed on member accountants and membership requirements of a PAB or are traded? adjunct members; professional standards, it could, among Proposed rule 13–04(g)(9) addresses • A summary of issues discussed in other sanctions, revoke or suspend the the situation where a firm employs a the PAB-sponsored meetings with, or in accountant’s membership in, or expel person who is subject to a PAB sanction, the accountant from, the PAB; impose order, or ruling. Because many 117 17 CFR 201.102(e)(2).
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connection with its oversight of, private control systems, including sanctioning this requirement raise any concerns in sector standard-setting bodies; or removing from practice before the light of state law requirements in the • A list of matters referred to each Commission incompetent or unethical areas of fiduciary duty and business private sector standard-setter that were individuals. judgment? not placed on the standard-setter’s The proposed rule allows a PAB to set Under the self-regulatory structure, a agenda within 90 days of the referral; auditing, ethical and quality control 1982 memorandum of understanding and standards, perform quality control and (‘‘MOU’’) among the Commission, the • Other matters as the PAB or the supplemental reviews, and impose SECPS Peer Review Committee, the Commission deems appropriate. disciplinary sanctions. As discussed SECPS Executive Committee, and the Transparency is essential if a PAB is elsewhere in this release, these powers POB significantly limited our oversight. going to be a credible private sector are necessary in order for a PAB to For example, the MOU provided for the regulatory body, develop the trust of improve audit quality and enhance Commission staff to have access to POB both accountants and government public confidence in our markets. staff workpapers, but only to certain bodies, and enhance the confidence of Because a PAB’s influence on financial workpapers of the peer reviewers on a investors in the audit process and in the reporting will be significant, random selection basis. The MOU also integrity of the information that fuels Commission oversight is necessary to stated that the Commission staff was not our securities markets. Public reports ensure that a PAB exerts its influence permitted to retain or make copies of are one means of providing that exclusively in the public interest. POB or reviewer workpapers. transparency. We request comment on the structure Under proposed rule 13–04(i)(2), a We request comment on our proposed and scope of Commission oversight totally different approach is proposed public reporting provisions. Should we provided in the proposed rules. Would that would give the Commission the be more specific? Will the specified our goals better be served by a system requisite involvement and oversight of a reports achieve an adequate level of of oversight that was less extensive? PAB’s activities. Under the rule, our transparency? If not, on what other Why or why not? Should our rules set staff periodically may monitor and types of reporting should we condition forth detailed criteria with respect to inspect the operations, records, and a PAB’s Commission recognition? We when the Commission would exercise results of a PAB to ensure it is operating also request comment on the its oversight? What should those criteria in the public interest and fulfilling the appropriate timing and the scope of the be? purposes of the Commission’s rules. We reports. Although we would not approve a intend that our staff would, in fact, PAB’s rules before they take effect, as Commission Oversight regularly inspect the PAB’s operations, we do for the securities exchanges and records, and results, and would As discussed above, under proposed others, one of the conditions of meaningfully monitor the PAB’s section 13–04(i), Commission Commission recognition of a PAB operations. Among other things, we recognition is conditioned on a PAB’s would be, as set out in proposed rule expect that monitoring to include our charter and bylaws providing that it will 13–04(i)(1), that the PAB consent to and staff’s attendance at meetings between a be subject to, and act in accordance act in compliance with any Commission PAB and firms in connection with with, Commission oversight. Our rule that abrogates, adds to, or deletes closing conferences at the completion of oversight authority under proposed from the rules of a PAB. Using this quality control reviews. The rule also section 13–04(i) is substantial. We provision, we could, by rule, amend a requires a PAB to make and keep expect to monitor closely the activities PAB’s rules to remove inconsistencies, records that the Commission staff deems of any PAB and exercise particular assure compliance with the securities necessary for its inspections of the aspects of our oversight authority laws or our regulations, and otherwise PAB’s quality control reviews, whenever the public interest so fulfill the purposes of Article 13. We supplemental reviews, and disciplinary requires. Among other things, under would notify a PAB of our intention to activities. these proposed rules, the Commission take such action before we commenced We solicit comment on the approach may make changes to a PAB’s rules, a rulemaking proceeding. We also to oversight in the proposed rules and inspect and monitor a PAB’s operations, would follow our normal rulemaking on Commission involvement of a PAB’s review PAB disciplinary proceedings process under the Administrative activities. How extensive should the and modify or reverse any sanctions Procedure Act,118 including publication involvement be of our staff in meetings imposed, remove PAB board members of the proposed changes in the Federal between a PAB and a firm being under certain circumstances, redirect Register, to solicit a wide range of reviewed? At what stage of the oversight fees paid to a PAB that fails to comply comments on the proposed process would our staff’s involvement with the conditions of recognition, and, amendments. As discussed above, a be most productive? ultimately, withdraw recognition. We PAB’s charter and bylaws would Because a PAB may limit or suspend believe that the system of private provide that any changes we make to a an accountant’s practice before the regulation proposed by the release, PAB’s rules would be immediately Commission, an adversely affected firm coupled with Commission oversight, is effective without further action by a or individual should have the the best way to achieve our goals of PAB. We request comment on this opportunity to seek Commission review improving audit quality and financial provision. Should we review or approve of a PAB disciplinary decision. In disclosure. of a PAB’s rules before they take effect? addition, any member or adjunct We envision a more thorough and Should the Commission amend a PAB’s member who is found delinquent in extensive oversight of a PAB’s processes rules or should we only suggest or paying fees, producing documents or than existed under the prior self- require that changes be made by the providing testimony should have an regulatory structure. We would intend PAB itself? We request comment on our opportunity to seek Commission review to have full access to the process so that requirement that a PAB provide that any of that determination. Under proposed we would be able to determine to our changes we make to a PAB’s rules rule 13–04(i)(3)(i), a PAB member satisfaction whether a PAB is operating would be immediately effective. Does accountant or adjunct member would in the interests of investors and working have 30 days from the date the member diligently to improve firms’ quality 118 See 5 U.S.C. 553 et seq. accountant or adjunct member was
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notified by the PAB of the sanction or competition or is excessive or deliberations of, the PAB and its agents delinquency determination to file an oppressive. to receive appropriate confidential application with the Commission for We request comment on the treatment under applicable law. We also review. The Commission also could Commission proceeding to review a find it in the public interest for a PAB review a PAB sanction or delinquency PAB’s disciplinary actions or to claim such protection, except to the determination on its own motion. A delinquency determinations. What extent that such information is Commission review, however, would should such a hearing entail? Should requested by the Commission, any other not stay the operation of the sanction the rule allow for us to increase the Federal agency or department, any state unless the Commission so orders. sanction imposed on an accountant licensing or criminal law authorities, We seek comment on Commission when appropriate? Under the proposed and any foreign governmental or foreign review of a PAB disciplinary or rules, we may cancel, reduce or require financial regulatory authorities. delinquency action. Under the proposed remission of a sanction or cancel a The Commission anticipates and rules, a PAB member or adjunct member delinquency determination if it would intends that a PAB vigorously will claim would have 30 days to file an impose an unnecessary burden on confidentiality for its quality control application for review. Is 30 days competition or is excessive or review files, supplemental review files, sufficient time to file an application? oppressive. Are these the appropriate and other files to the full extent Should an application for review stay instances when we should take such permitted under law. Courts have the operation of the sanction? action? Are there other circumstances recognized the strong public interest in Under 13–04(i)(3)(ii), a Commission when we should act to ameliorate a allowing non-governmental entities proceeding for review of a PAB’s final sanction? What are they? entrusted with enforcing rules of disciplinary action against a member Proposed rule 13–04(i)(4) allows us, conduct to minimize disclosure of accountant would allow for notice and by order, to remove from office or investigative materials.119 In Ross v. an opportunity for a hearing. The censure any PAB board member if we Bolton, the court noted the danger in hearing may consist solely of find, after notice and opportunity for ‘‘making NASD files fair game for any of consideration of the record before the hearing that the member has (1) the thousands of private securities fraud PAB and opportunity for the willfully violated any provision of the litigants across the country who wish to presentation of supporting reasons to securities laws, rules or regulations shortcut their own discovery efforts and affirm, set aside, or modify the sanction. thereunder, or the rules of the PAB; (2) instead to reap the benefits of the Under the proposed rule, the willfully abused his or her authority; or Association’s ongoing, statutorily Commission would make a finding (3) without reasonable justification or governed work.’’ 120 determining whether the member excuse failed to enforce a PAB member’s Those who possess information may accountant engaged in the acts or compliance with any such provision or be less forthcoming in responding to a omissions that the PAB found the professional standards. In addition, PAB inquiry if they believe that the accountant to have engaged in; whether under proposed rule 13–04(i)(5), if the information they provide will be made those acts or omissions violated the Commission finds that a PAB is failing public or made available to private provisions of the securities laws or rules or has failed to comply with any of the litigants.121 The PAB’s efforts to thereunder, rules or membership conditions of recognition in proposed improve audit quality accordingly requirements of the PAB, or professional rule 13–04, we could withdraw would be hindered.122 Additionally, we standards that the PAB specified; and recognition of the PAB and direct that believe that in most instances a whether those provisions are, and were PAB fees be deposited into escrow plaintiff’s legitimate interest in applied in a manner, consistent with pending either correction of the PAB’s obtaining discovery from a PAB will be proposed Article 13. If the Commission failing or redirection of the funds to slight at best. This particularly will be makes those findings, the Commission another PAB with which the formerly the case where the PAB is not a party would by order so declare, and affirm or recognized PAB’s members have to the litigation or where a PAB inquiry modify the sanction or, where enrolled. is not the subject of a plaintiff’s appropriate, remand it to the PAB for Does our proposal set forth the claims.123 Moreover, a plaintiff further proceedings. If the Commission appropriate circumstances for when we generally will be able to obtain the does not make those findings, it would would remove from office or censure a information it seeks from sources other set aside the sanction and, if PAB board member? We solicit than a PAB. Accordingly, a PAB’s files appropriate, remand it to the PAB. We comment on the redirection of funds to should receive significant protection are not proposing that the Commission, another PAB. Are there other from compelled disclosure. The scope of during such a review, be able to increase circumstances that would warrant such the sanction imposed on the accountant. action by the Commission? Are there 119 See Fiero Bros. v. Mishkin, No. 95–08203 JLG, If the Commission deems a greater alternative approaches for resolving or 1999 WL 1747410 (S.D.N.Y. Dec. 8, 1999); Apex Oil sanction to be necessary, it would correcting a PAB’s failure to meet the Co. v. DiMauro, 110 F.R.D. 490, 496 (S.D.N.Y. initiate its own civil, administrative, or 1985); Ross v. Bolton, 106 F.R.D. 22, 23 (S.D.N.Y. conditions of ongoing recognition? 1985). disciplinary proceedings. We request comment on all aspects of 120 Ross, 106 F.R.D. at 24. Proposed rule 13–04(i)(3)(iii) sets Commission oversight of a PAB. Are 121 See Apex Oil, 110 F.R.D. at 496. forth similar procedures for Commission there important aspects of Commission 122 Additionally, as with our own proceedings, review of a PAB delinquency oversight that we have not identified? substantial harm may occur to individuals, determination against a member or What are they? We request comment on accounting firms, or registrants if materials are adjunct member. In proposed rule 13– released either prematurely or after a determination our proposed rule that would allow us has been made that allegations or suspicions of 04(i)(3)(iv), we have expressed to withdraw recognition of a PAB. misconduct have not been substantiated sufficiently specifically our authority to cancel, to warrant instituting a PAB disciplinary reduce, or require remission of a F. Confidentiality and Immunity proceeding. Absent such confidentiality, the sanction or to cancel a delinquency Proposed rule 13–05(a) contains the reputation of innocent professionals could be tarnished irreparably and the price of a registrant’s determination, if we find that the Commission’s finding that it is in the securities could suffer based on unfounded sanction or delinquency determination public interest for reports, memoranda, suspicion or rumor. imposes an unnecessary burden on and other information prepared by, and 123 See Apex Oil, 110 F.R.D. at 497.
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this protection, however, should not be the safeguards against abuse provided Commission on a recurring basis and so broad as to permit a PAB to deny by the Commission’s oversight.127 whose audit reports are filed with us Commission access to the PAB’s Although we are proposing the only in accordance with Rule 3–05 of materials, nor should it permit a PAB to framework for a private sector Regulation S–X.130 Rule 3–05 requires deny access to the other governmental regulatory organization that is not self- that the audited financial statements of authorities described above. regulatory in nature, a PAB and its certain businesses acquired, or to be employees should be immune for acquired, by registrants be filed with the We request comment on our proposal activities within the scope of their Commission. An audit of a private that the Commission find that duties under these rules. Like an SRO, business that subsequently is acquired information prepared by a PAB receive the PAB will further the purposes of the by a registrant, therefore, would not, by confidential treatment. Should such federal securities laws by setting itself, require the accountant performing information be treated confidentially? standards, enforcing compliance, and the audit to become a member of a PAB. Why or why not? Our proposal sets providing the Commission with Under proposed rule 13–06(c), the forth exceptions to confidentiality, such information. A PAB will perform critical Commission may relieve a PAB from as information requested by a federal public functions as it fulfills its mission any of its obligations under Article 13 agency. Should our rules provide for to ensure reliable financial information to enforce rules or membership other exceptions? We seek comment on and enhance public confidence in our requirements of a PAB or professional the effect that discovery requests in markets. A PAB will, to the same extent standards with respect to any private actions would have on a PAB as an SRO, be susceptible to lawsuits accountant, adjunct member, or class of inquiry. Would those who possess that could hamper its important public accountants or adjunct members. We information be less willing to share mission or discourage public-spirited believe this proposal is appropriate to information if the information could be persons from serving on a PAB. Finally, clarify our ability to address unintended subject to discovery in a private action? a PAB will be subject to Commission consequences or unforeseen events that Is there some other way to address this oversight to guard against abuses. may occur and result in a need to concern besides a PAB maintaining Accordingly, a PAB and its employees suspend or alter the functions confidentiality of the information? should be immune from civil liability to performed by a PAB. the same extent as the SROs.128 We request comment on the proposed In proposed Section 13–05(b), the use of our exemptive authority. Should Commission finds that public policy We solicit comment on our proposed finding that a PAB be immune from the Commission grant exemptions for dictates that a PAB, its staff, contractors, accountants whose reports are filed only and professional representatives should private liability. Should we make such a finding? Would immunity be pursuant to Rule 3–09, regarding the be immune from liability in a private appropriate, as our proposed finding financial statements of certain civil suit for any action or failure to act unconsolidated subsidiaries and ‘‘50 suggests, for staff, contractors, and in connection with the PAB’s percent or less owned persons,’’ or Rule professional representatives of a PAB? responsibilities under Article 13. We 3–10, regarding the financial statements Are there reasons we should not find of certain guarantors and issuers of anticipate, and intend, that a PAB and that such immunity is appropriate? its members and employees will claim guaranteed securities? G. Exemptions and be entitled to immunity from H. Foreign Accountants private civil liability for any action or The Commission’s broad exemptive Under proposed rule 13–07(a), foreign failure to act in connection with a PAB’s authority 129 is reflected in proposed responsibilities under the proposed accountants that audit or review rule 13–06(a). Under this provision, on financial statements filed with the rules.124 Common law provides our own motion or upon an application Commission, and foreign issuers that immunity for non-governmental actors by any interested party, we may exempt, engage foreign accountants for such who perform public functions such as conditionally or unconditionally, in services, would be exempt from the the ‘‘development and promulgation of whole or in part, any registrant, operation of Article 13 and proposed interpretations of statutory and accountant, or class of registrants or rule 2–01(a)(2) of Regulation S–X.131 As regulatory requirements, the accountants, from the operation of noted above, under proposed section dissemination and implementation of Article 13 and proposed rule 2–01(a)(2) 13–03(c)(5), a PAB would study the these interpretations, and the provision of Regulation S–X. quality control systems of foreign of information to government In proposed rule 13–06(b), we would accountants and periodically report to agencies.’’ 125 Accordingly, self- use our authority and exempt from the us on whether the exemption provided regulatory organizations (‘‘SROs’’), for operation of Article 13 and proposed to foreign accountants should be example, have been held to enjoy rule 2–01(a)(2) of Regulation S–X those withdrawn. We would expect a PAB, at immunity for actions taken within the accountants who do not audit or review an appropriate time, to recommend that scope of their duties as SROs, including financial statements filed with the all or various classes of foreign interpretive, enforcement, adjudicatory, accountants, conditionally or 127 126 See Barbara v. New York Stock Exchange Inc., unconditionally, should be subject to and referral activities. Immunity from 99 F.3d 49, 59 (2d Cir. 1996); Austin Municipal civil liability attaches because of, among Securities, Inc. v. National Assoc. of Securities proposed Article 13 and proposed rule other things, the likelihood of Dealers, Inc., 757 F.2d 676, 692 (5th Cir. 1985). 2–01(a)(2) of Regulation S–X. recriminatory lawsuits against SROs and 128 The distinction between private regulation In the meantime, we would require, and self-regulation is important because under under proposed section 13–04(e)(6), that these rules the accounting profession will not be domestic firms that are associated with 124 We do not intend anything in this rule to responsible for regulating itself. Rather, a private suggest that a PAB would or should be immune sector entity not controlled or dominated by foreign firms continue the current from civil law enforcement actions. accountants will assume this role. We do not 125 See D’Alessio v. New York Stock Exchange believe, however, that distinction is relevant for the 130 17 CFR 210.3–05. Inc., 125 F. Supp. 2d 656, 658 (S.D.N.Y. 2000), purposes of determining whether a PAB will be 131 This proposed exemption would not preclude aff’d, 258 F.3d 93 (2d Cir. 2001). immune from civil liability. the Commission from initiating Rule 102(e) 126 See D’Alessio v. New York Stock Exchange 129 See, e.g., Section 36 of the Exchange Act, 15 proceedings or other appropriate proceedings when Inc., 258 F.3d 93, 106 (2d Cir. 2001). U.S.C. 78mm. warranted.
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practice of encouraging their We request comments on our proposal placing the requirement in Regulation international organizations and regarding foreign accountants. Is the S–B as well. Should small business individual foreign associated firms to exemption for foreign accountants issuers make this disclosure? Assuming improve their quality control policies appropriate? There may be situations disclosure is required of PAB sanctions and procedures, in a manner consistent where, for example, a foreign company that have been imposed on executive with the objectives of Article 13.132 We has the majority of its assets and officers, directors, or director nominees, also would expect that domestic firms operations in the United States and as should disclosure also be required of would continue to urge their foreign a result it engages a U.S. firm to conduct sanctions that have been imposed associated firms to adopt policies and the audit of the foreign company’s against such individuals in disciplinary procedures that are at least as rigorous financial statements. Should the actions under Rule 102(e) of the as those set forth in Appendix K to the exemption be broadened to include Commission’s Rules of Practice? Should current SECPS Membership such a foreign issuer? Are there disclosure be required for sanctions that Requirements.133 These policies and situations in which a U.S. firm’s audit were imposed longer than five years procedures are intended to provide a work for public companies is limited to ago? companies that are foreign issuers? If so, mechanism for persons knowledgeable J. Transition Period in United States accounting, auditing, should the exemption be broadened to and auditor independence requirements include those issuers, but not broadened We are considering the appropriate to assist foreign accountants in the to include foreign issuers whose U.S. timing for the implementation of final performance of audits of financial accounting firm also provides audit rules, if any are adopted, and how best statements included in filings with the services to domestic issuers, and would to allow for an orderly transition to the Commission. Appendix K also therefore be required to be a PAB new rules. We are considering what, if addresses policies and procedures member anyway? Should we include an any, delay would be necessary or related to an annual inspection process explicit provision to prevent domestic appropriate in this case. We could set a transition or that would include the review of a issuers from avoiding the PAB compliance date that would allow sample of audit engagements performed requirement by engaging a foreign additional time for a PAB to be by foreign associated firms for clients accounting firm as their principal established, recognized by the that are Commission registrants.134 We auditor? Commission, and in a position to begin would require under proposed rule 13– I. Disclosure by Directors, Executive accepting members. We anticipate that 04(e)(6) that domestic accountants Officers, Promoters, and Control Persons one or more entities seeking to be a PAB would report to a PAB, as they currently Under our proposed addition to item will submit appropriate information to report to the SECPS, the name and 401(f) of Regulation S–K,136 disclosure the Commission soon after the final country of the foreign associated firms, would be required if, during the past rules are published. We further if any, that have advised the domestic five years, any director, person anticipate that we would review that accountant that such policies and nominated to become a director, or information promptly and, if procedures have been put in place.135 executive officer was, in his or her practicable, issue an order recognizing a In this regard, under proposed rule capacity as a PAB member accountant, PAB by January 2003. Even though such 13–07(b), during a review of a member sanctioned by a PAB for violations of a PAB might not be in a position for firm’s quality controls, a PAB or other professional standards or the PAB’s several months to begin conducting reviewer would examine the procedures rules or membership requirements and quality control reviews or disciplinary performed by the firm related to that sanction has not been subsequently proceedings, it could begin accepting documents filed with the Commission reversed, suspended, or vacated. members soon after it conducts a that contain audit reports prepared by Item 401 currently requires disclosure rulemaking project related to the the firm’s foreign associated firms. of similar sanctions, such as court content and processing of accounting orders or judgments by federal or state firms’ applications. 132 The Commission staff also will continue to authorities barring or limiting the right One alternative, therefore, may be for seek comfort regarding a foreign accountant’s of the person to engage in activities a transition or compliance date to be knowledge of United States accounting, auditing, related to, among other things, based on the public issuance of the and auditor independence requirements as part of its review of filings or in anticipation of being commodity trading, any type of business Commission’s Order recognizing a PAB. requested to exercise its judgment in the public practice, or the purchase or sale of any For example, the compliance date could interest to accelerate the effectiveness of registration securities. be 90 days after the public release of a statements. A PAB sanction would be designed to Commission Order recognizing a PAB. 133 Appendix K is available at http:// protect investors from incompetent or www.aicpa.org/members/div/secps/inmere.htm. Another alternative, which would 134 Persons knowledgeable in U.S. GAAP, GAAS unethical conduct or other failures to encourage entities desiring to be a PAB and independence requirements and Commission comply with professional standards. to submit information to us promptly, regulations (the ‘‘inspection reviewers’’) would Such a sanction would be considered to might be to set a date certain or specific review the engagements. The inspection reviewers be sufficiently serious that investors period of time after the effective date for would determine whether anything came to their attention to cause them to believe that: (1) Either should be notified of the sanction for full compliance with the rules. the financial statements did not comply with U.S. consideration in connection with We solicit comments on the GAAP or the required reconciliation to U.S. GAAP investment or voting decisions. appropriate timing for compliance with did not include appropriate treatment of material We request comment on our proposal the proposed rules. Would a period of reconciling items; (2) the audit engagement was not regarding disclosure. The disclosure performed in accordance with U.S. GAAS; (3) the time beyond the effective date be foreign associated firm did not comply with U.S. requirement has been placed in necessary or appropriate for compliance auditor independence requirements; and (4) the Regulation S–K but not in Regulation S– with the rules? How should such a date foreign associated firm did not comply with B in order not to increase the be determined? procedures for having Commission filings reviewed compliance burden on small business by a person knowledgeable in U.S. GAAP, U.S. IV. General Request for Comments GAAS, U.S. auditor independence requirements, issuers. We are considering, however, and Commission regulations. See Id. We invite any interested person 135 SECPS, Requirements of Members, at n. 136 17 CFR 229.401(f). wishing to submit written comments on
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these proposed rules to do so. We the proposed rules operate effectively. and the public of (1) any action that specifically request comments from This collection of information could result in a member or adjunct investors, accounting firms, and encompasses: member’s loss of good standing in the registrants and other audit clients. We • An initial submission to the PAB, and (2) the loss of good standing solicit comment, both general and Commission; by a PAB member or adjunct member. specific, on each component of the • Notices concerning the loss of good The notice requirements could be proposals. standing; triggered by a failure to pay fees, • Requests to add items to agendas of V. Paperwork Reduction Act produce documents or provide standard-setters and related notices to testimony, or by noncompliance with a Certain provisions of the proposed the Commission; PAB sanction.138 We expect that such amendments to Regulation S–X and • Publication of rules; notices would be rare. Accordingly, for Regulation S–K contain ‘‘collection of • Foreign accountants’ quality the purposes of the PRA, we estimate information’’ requirements within the controls report; that a PAB would provide 15 such meaning of the Paperwork Reduction • Quality control review reports and notices each year. The paperwork Act of 1995 (‘‘PRA’’) (44 U.S.C. 3501 et files; burden involved in preparing the notice seq.), and the Commission has • Referrals to the Commission, would be minimal because the notice submitted them to the Office of markets, and exchanges; would consist only of a short, factual • Management and Budget for review in Notices of charges in disciplinary statement. Accordingly, we estimate accordance with 44 U.S.C. 3507(d) and proceedings; that each notice would require one hour • 5 CFR 1320.11. An agency may not Reports of sanctions; to prepare, and that 15 burden hours per • conduct or sponsor, and a person is not Public reports; and year would be spent on preparing these • required to respond to, a collection of Record retention. notices. information unless it displays a Initial Submission to the Commission. Requests to Add Items to Agendas of currently valid OMB control number. Under proposed rule 13–03, an entity Standard-Setters and Related Notices to The titles for the collections of seeking Commission recognition as a the Commission. Under proposed rule information are ‘‘Framework for a PAB must make a submission to the 13–04(d)(12), a PAB would either set Public Accountability Board—PAB,’’ Commission that would include its audit, quality control and ethics ‘‘Framework for a Public Accountability charter, bylaws, organizational standards or designate private sector Board—Accountants and Audit structure, proposed budget, proposed bodies’ standards as authoritative. If it Clients,’’ and ‘‘Regulation S–K’’ (OMB board members and terms of board chooses the latter, it would notify the Control No. 3235–0071). Compliance membership, and representations that it Commission any time it requests that a with the collection of information would perform certain functions and private sector standard-setter add an requirements would be mandatory. have rules, membership requirements, item to its agenda. Proposed rule 13– There would be no mandatory retention systems, and procedures to accomplish 04(d)(13) would require a similar notice period for the information, except as certain tasks. After evaluating this to the Commission any time a PAB provided below. Responses to the information and such other information requests that a private sector body that disclosure requirements would not be as the Commission might request, the sets accounting or independence kept confidential. The collections of Commission would determine whether standards add an item to its agenda. information are necessary to provide to recognize a PAB. For purposes of the PRA, we estimate assurance that audit, review, and attest We estimate solely for the purposes of services performed by accountants that, after it completes its quality the PRA that only one entity would control review cycle, a PAB would make fulfill their statutory and regulatory 137 apply to be a PAB and that it would approximately five requests to standard- purpose and enhance the confidence of prepare a charter, bylaws, and other investors in the audit and review setting bodies to add several items to governing documents for the purpose of each body’s agenda reflecting concerns processes and in reported financial incorporation under state law. While we information. that arose during the quality control would carefully scrutinize an entity’s review process.139 Each request would Information Provided by a PAB submission in order to determine its necessitate a letter to the appropriate commitment and capacity to carry out We are proposing a collection of standard-setting body, and would the functions and to accomplish the information entitled ‘‘Framework for a require a PAB to consider carefully any purposes of a PAB, we do not believe Public Accountability Board—PAB’’ for requests it would make. We therefore that the submission would be onerous to information that would be provided by estimate, for purposes of the PRA, that prepare. As a result, for purposes of the a PAB to the Commission, the public each such request letter would require PRA, we estimate it would take and others. The respondents to this approximately 40 burden hours. The approximately 240 hours to prepare a collection of information would be required notice to the Commission submission to be filed with the PABs and entities seeking Commission could simply include a copy of the Commission. recognition as PABs. As discussed request and an appropriate cover letter. Notices Concerning the Loss of Good As a result, the notice to the below, we estimate solely for the Standing. Under proposed rule 13– purposes of the PRA that only one PAB Commission would result in little 04(d)(11), a PAB would have in place additional burden. We estimate for would respond to this collection of rules to provide notices to the member information. This collection of or adjunct member, the Commission, 138 information is necessary to allow the As discussed below, proposed rule 13– 04(d)(11) also requires notice when the PAB takes Commission to oversee a PAB to ensure 137 We use this assumption, which we make action that could result, or results, in a suspension that it is operating in the public interest. solely for the purposes of the PRA, throughout this or bar from the PAB. The burden that would result In addition, the collection of discussion of the information collection from these notices is discussed in the section information would provide the public requirements that would be imposed by the entitled ‘‘Notices of Charges in Disciplinary proposed rules. Thus, wherever an estimate of the Proceedings,’’ below. with important information concerning number of PABs is necessary to calculate an 139 We estimate that a PAB might make one a PAB’s activities. Finally, the estimated paperwork burden, we assume that there request regarding each of the five types of standards information is necessary to ensure that will be only one PAB. enumerated in the proposed rules.
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purposes of the PRA that such a notice approximately 40 burden hours to The reports might be oral or written, would require approximately one prepare. We expect that preparing a and might be accompanied by such burden hour. Accordingly, we estimate PAB quality control review report information that indicates a violation or that this aspect of the proposed rules should take approximately the same non-cooperation. We estimate that these would impose 205 burden hours per amount of time. We therefore estimate, reports will require approximately two year. for purposes of the PRA, that a PAB burden hours each, and therefore that 40 Publication of Rules. Under proposed would require approximately 400 burden hours per year would be rule 13–04(d)(14), a PAB would provide burden hours per year to complete required to comply with this an open and deliberative rulemaking reports of quality control reviews. requirement. process that would include publication Under the proposed rules, a PAB also Notices of Charges in Disciplinary of draft rules for notice and comment. would maintain public files of all Proceedings. Under proposed rule 13– We expect that a PAB would publish a quality control review reports and any 04(g)(3), a PAB would notify a member large number of rules during its first responses to the reports by the reviewed of specific charges in any disciplinary year after recognition. In later years, we accounting firms. According to our proceeding. We anticipate that this expect that a PAB would publish fewer, records, there are approximately 850 notice would be similar to a complaint if any, new rules per year. Thus, we domestic accounting firms that or an order instituting administrative estimate, for the purposes of the PRA, currently perform audits for SEC proceedings. Based on our experience that, on average, a PAB will publish registrants. Accordingly, we estimate with disciplinary proceedings against approximately ten new rules per year. that approximately 850 accounting firms accountants, we estimate that a PAB We expect that a PAB would expend would be members of a recognized PAB might initiate approximately 75 significant time and effort in developing under the proposed rules. Ten of these disciplinary proceedings per year.142 appropriate rules and requirements for firms would undergo a PAB-directed This notice would require careful its members. We also expect that a PAB quality control review each year. The formulation and, possibly, legal review. would make its rules available to its remaining 840 firms would be reviewed Additionally, under proposed rule 13– members. Therefore, we estimate for at least every three years. We therefore 04(d)(11), any disciplinary proceeding purposes of the PRA that a PAB would estimate that each year, a PAB would that could result in suspension or bar of spend, on average, approximately 200 create or add to 290 public files of a member accountant would trigger a burden hours for each rule it publishes. quality control review reports.141 requirement that a PAB provide notice, Accordingly, we estimate that this Making the reports publicly available by in addition to the member accountant, aspect of the proposed rules would maintaining them in a public file would to the Commission, and to the public. impose approximately 2,000 burden not impose a significant burden. As a Solely for the purposes of the PRA, we hours per year. result, we estimate for purposes of the estimate that a PAB also would provide Foreign Accountants’ Quality PRA that publicly maintaining one notice under 13–04(d)(11) each time it Controls Report. Under proposed rule report would require one burden hour. institutes disciplinary proceedings 13–03(c)(5), a PAB would study and Thus, 290 burden hours would be against an accountant. We estimate for periodically report to the Commission expended per year on this aspect of the the purposes of the PRA that on matters related to the quality controls proposed rule. approximately 30 burden hours would of foreign accountants. Foreign Referrals to the Commission, Markets be required to complete both notices, accountants are not covered by the and Exchanges. Under proposed rule and that a PAB would therefore expend proposed rules. A PAB would, however, 13–04(g)(2), a PAB would report 2,250 hours per year on this aspect of periodically review whether foreign information indicating a violation of the the proposed rules. accountants should be subject to the securities laws to the Commission. Reports of Sanctions. Under proposed rules, and report to the Commission on Under proposed rule 13–04(g)(8), a PAB rule 13–04(g)(7), anytime a PAB that issue. This proposed rule might would similarly refer matters to the imposes a disciplinary sanction on an require foreign travel, an analysis of Commission anytime it is unable to accountant, the PAB would report the various foreign legal and regulatory conduct or complete a supplemental sanction to the Commission, the public, requirements, an analysis of foreign review or a disciplinary proceeding and the appropriate state or foreign professional standards, and other items. because of the refusal of any person to authorities. These reports would We therefore estimate for the purposes cooperate. If an uncooperative party is include the name of the accountant of the PRA that this aspect of the a registrant, the PAB would also report being sanctioned, a description of the collection of information may require the registrant’s lack of cooperation to acts or omissions upon which the 1,000 burden hours. the relevant market or exchange. A PAB sanction is based, the nature of the Quality Control Review Reports and would also refer any other matter it sanction, and such other information as Files. Under the proposed rules, a PAB deems appropriate to the Commission. a PAB deems appropriate. Based on our would issue a report at the end of each Although we cannot estimate with experience with disciplinary PAB-directed quality control review. A precision how frequently a PAB would proceedings against accountants, we PAB-directed review would be required make such a referral, for purposes of the anticipate that a PAB may make each year for accounting firms with PRA we estimate that a PAB would approximately 50 such reports each more than 70 SEC clients. We estimate make 20 such referrals per year. These year. Assuming for purposes of the PRA that there are currently approximately reports would likely be fact specific, 142 The Commission initiates approximately 100 ten firms with more than 70 SEC and not result in significant burdens. cases per year related to deficient financial 140 clients; a PAB would therefore issue reporting. See, e.g., SEC, Annual Report 2001, at approximately ten such reports each 141 We derived this number by assuming that each 134. We estimate that approximately one-half of year. We estimate that under the current year, one-third of the accounting firms not subject these cases involve disciplinary actions against to an annual PAB-directed review will be reviewed accountants. Because of its ability to detect issues SECPS system, a report requires under a PAB-approved program. Thus, 280 of these during its reviews, we expect that a PAB would firms would be reviewed per year. In addition, each initiate at least as many actions as, and possibly 140 We make this assumption based on a list of year a PAB would review the ten firms with more more than, the Commission. Accordingly, we SECPS member firms compiled by the SECPS. See than 70 SEC clients. As a result, the PAB would estimate that a PAB may initiate 75 disciplinary supra note 111. create or add to 290 public files per year. proceedings per year.
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that preparation and internal legal Information Provided by Accountants (resulting in no more than review of one report would require and Audit Clients approximately 15 burden hours, as approximately 50 burden hours, there The proposed rules would require discussed below), audit clients. As would be an annual burden of accountants that are members of a PAB discussed below, we estimate that approximately 2,500 hours imposed by to provide certain information to the approximately 850 accounting firms this requirement. Commission, a PAB, the public, and would respond per year to the proposed Public Reports. Under proposed rule others. A primary focus of the proposed collection of information requirements. 13–04(h), a PAB would report to the rules is on the thoroughness of the In addition, up to approximately 53 public and the commission at least quality control reviews and disciplinary individual accountants and 3 audit annually, and where practicable on a proceedings resulting from these clients per year might respond to the reviews. For the most part, the collection of information requirements, current basis, detailed descriptions of its 145 activities, annual audited financial information to be provided by depending on circumstances. The statements, explanations of its fees and accountants currently is reported to the title for this collection of information is charges, a summary of issues discussed SECPS, or is otherwise required under ‘‘Framework for a Public Accountability with private sector standard-setting professional standards. We assume that, Board—Accountants and Audit Clients.’’ The collection of information bodies, a list of matters referred to each if the proposed rules are adopted, the would encompass: standard-setter that were not placed on SECPS would no longer impose any requirements that would be duplicative • Enrollment procedures; the standard-setter’s agenda within 90 • of PAB requirements. In many Auditor independence reports; days, and such other information as a • Reports concerning the termination PAB considers appropriate or that the instances, therefore, the proposed rules would simply require that information of an auditor-client relationship; Commission requires by order. All of • Notices upon beginning the information required would be be directed to a PAB rather than the SECPS. Accordingly, most of what the employment discussions; readily available to a PAB. Nevertheless, • Reports concerning foreign some time would be required to compile proposed rules would require from accountants is usual and customary and associated firms; the information and put it into usable • would not impose a new burden.143 Reports concerning litigation and form. We estimate for purposes of the We estimate, however, that government investigations or PRA that 200 burden hours per year approximately 80 accounting firms that proceedings; would be associated with the are not currently members of the SECPS • Applications for Commission preparation of these reports. Burdens would likely become members of a PAB review; associated with preparation of the under the proposed rules.144 These • Quality control review reports; • reports might be minimized if a PAB firms are, we believe, smaller firms with Record retention; and • creates a website and updates one or two SEC clients that chose not to Notices concerning the hiring or information on that website on an join the SECPS. Under the proposed retention of sanctioned individuals. ongoing basis. rules, however, these firms would likely Enrollment Procedures. Under Record Retention. Under proposed join a PAB in order to maintain those proposed rule 13–04(d)(1), a PAB would rule 13–04(i)(2), a PAB would be SEC clients. These firms would incur provide for membership enrollment required to make and keep records that new paperwork burdens under the procedures that would minimize the the Commission staff deems necessary proposed rules, and we have estimated administrative burden on individual for its inspection of the PAB’s quality these burdens below, along with new accountants by maximizing the extent to control review activities, supplemental burdens that would be imposed on all which the enrollment requirements reviews, and disciplinary proceedings. PAB-member accounting firms, could be satisfied by an accounting firm A PAB would adopt a record retention regardless of membership in the SECPS. on behalf of its individual accountants. policy that would be approved by the This information collection is A PAB would develop its own Commission. The policy would provide necessary to enhance investor procedures under this proposed rule. for the retention of records until the confidence that auditors of public We expect, however, that most likely a Commission has either inspected them companies are acting in the public PAB would require each member or informed the PAB that they no longer interest and in furtherance of the accounting firm to provide at least a list need to be retained. In addition, under purposes of the federal securities laws. of the individual accountants working proposed rule 13–04(g)(3), a PAB would The information would be used by a for the firm. We believe that accounting keep a record of its disciplinary PAB, accounting firms, registrants, and firms will have this information, and the proceedings. We estimate for purposes the public to monitor accountants’ other information a PAB might require, of the PRA that 1,000 burden hours compliance with the federal securities readily available. For the purpose of the would be associated with these laws, PAB rules, and professional PRA, we estimate that each member- recordkeeping requirements. requirements. The respondents to this accounting firm might expend five collection of information would be burden hours per year on enrollment in We therefore estimate for purposes of accountants and, extremely rarely a PAB and any updating requirements. the PRA that a total of approximately 10,140 burden hours would be imposed 143 See 5 CFR 1320.3(b)(2) (‘‘The time, effort, and 145 Individual accountants and audit clients on a PAB by this collection of financial resources necessary to comply with a could, in rare cases, be subject to this collection of information. We estimate that collection of information that would be incurred by information. First, as discussed below, individual approximately 25% of these hours persons in the normal course of their activities (e.g., accountants could provide a notice upon beginning in compiling and maintaining business records) employment discussions with an audit client. would be expended by a PAB’s outside will be excluded from the ‘burden’ if the agency Because such notices are already required, however, lawyers, while the rest would be demonstrates that the reporting, recordkeeping, or individual accountants would incur no new burden incurred in-house. Assuming a cost of disclosure activities needed to comply are usual with respect to this usual and customary activity. $300 per hour for outside legal and customary.’’). Second, as discussed below, we estimate that as 144 We estimate that the audit reports of many as 53 individual accountants and 3 audit expenses, the cost associated with the approximately 850 domestic accounting firms are clients per year might file applications for burden hours incurred by a PAB’s filed with the Commission, and that approximately Commission review of PAB disciplinary sanctions outside counsel would be $760,500. 770 of these firms are SECPS members. or delinquency determinations.
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Above, we estimated that approximately this requirement would impose 3 government investigations or 850 accounting firms would be members burden hours on accountants. proceedings once per year. We expect of a PAB under the proposed rules. Notices Upon Beginning Employment that a firm could satisfy the reporting Accordingly, we estimate that Discussions. Under proposed rule 13– requirement by sending the PAB and the accounting firms might expend 4,250 04(e)(9), a PAB would ensure that its Commission a copy of the complaint (or hours on enrollment procedures. member accounting firms have policies other relevant document) with a short Auditor Independence Reports. Under requiring prompt notification to the firm cover letter. We therefore estimate for proposed rule 13–04(e)(4), each when an individual accountant who is purposes of the PRA that one burden a partner or employee of the firm begins accounting firm that is a member of a hour would be required to satisfy the employment discussions with an audit PAB would disclose at least annually to proposed requirement, and that the audit committee of each audit client client. Under Independence Standards Board Standard No. 3,148 all accounting accounting firms would therefore incur that is a Commission registrant all two burden hours per year under this relationships between the accountant firms that would be members of a PAB aspect of the proposed rules. and its related entities that may bear on are already required to make such auditor independence, and confirm that reports. Accordingly, this is a usual and Applications for Commission Review. it is independent of the registrant. customary activity and no new burden Under proposed rule 13–04(i)(3), any Reports such as these have been would be imposed. final PAB disciplinary action or required since 1999 by Independence Reports Concerning Foreign determination of a loss of good standing Standards Board Standard No. 1.146 Associated Firms. Under proposed rule as a result of a failure to pay fees, Accordingly, all accounting firms that 13–04(e)(6), PAB member accountants produce documents, or provide would be members of a PAB already would report at least annually the name testimony is subject to Commission make such reports. Thus, these reports and country of any foreign associated review upon application by any person are usual and customary and no new firms that have notified the PAB aggrieved by the action. An application member in writing that they have burden would be imposed. for review would not need to be lengthy adopted policies and procedures that Reports Concerning the Termination or burdensome. We therefore estimate are consistent with proposed Article 13. of an Auditor-Client Relationship. for purposes of the PRA that such an Currently, accounting firms make such Under proposed rule 13–04(e)(5), when application would require reports to the SECPS; these reports are an accountant’s relationship with a approximately 5 burden hours. Commission registrant ends, a PAB therefore a usual and customary member accountant would report this practice.149 Having such reports We estimated above that a PAB might fact to the registrant and the directed to a PAB instead of to the sanction approximately 50 accountants Commission. The proposed rule simply SECPS would impose no additional per year. Assuming, for purposes of the codifies a long-standing SECPS burden.150 PRA, that each sanctioned accountant requirement.147 Accordingly, all Reports Concerning Litigation and requests Commission review, accountants that are members of the Government Investigations and accountants would file 50 applications SECPS already are making such reports. Proceedings. Under proposed rule 13– each year. These accountants could Therefore, these reports are a usual and 04(e)(7), a PAB would adopt a rule include individual accountants as well customary activity for SECPS members, requiring its member accounting firms as accounting firms. We estimated above and no additional burden would be to have policies or procedures in place that a PAB might issue 15 notices per imposed on them. to report to the PAB, with a copy to the year that a member or adjunct member As discussed above, we estimate that Commission, litigation or any might lose, or has lost, good standing as approximately 80 accountants that are proceeding or investigation by a a result of either: (1) Failing to pay fees, not currently members of the SECPS government agency alleging deficiencies produce documents, or provide would be members of a PAB under the in an audit or review or violations of the testimony, or (2) not complying with a proposed rules. These firms would most securities laws. Currently, these reports PAB sanction other than a suspension or are made to the SECPS QCIC.151 likely be smaller firms, with a bar. We expect that few of these Accordingly, the proposed rule should longstanding personal relationships notices would result from an actual loss not increase the burden of this usual with their one or two SEC clients. We of good standing as a result of a failure and customary activity for accounting believe that each year only a few of to pay fees, produce documents, or firms that are members of the SECPS. these firms would be required to provide testimony. Accordingly, we provide notice of the termination of a This proposed rule, however, would impose a new paperwork burden for any estimate for purposes of the PRA that 3 relationship with a Commission accounting firms, individual registrant. We estimate, therefore, for of the approximately 80 accounting firms that are not members of the SECPS accountants, or adjunct members would the purposes of the PRA that make one request each for Commission approximately 6 of the 80 accountants but would be members of a PAB. We expect that litigation or government review of such a good standing that are not members of the SECPS determination per year. Thus, for would be required to make one of these investigations or proceedings involving these firms would be relatively rare. purposes of the PRA, we estimate that reports each year. The report should this aspect of the proposed rules would require no more than one or two Accordingly, we estimate that two of impose 265 burden hours. Up to fifteen sentences and should not take more these 80 firms would report litigation or of these hours could be incurred by than one-half hour. We therefore 148 Independence Standards Board, Employment audit clients, depending on the estimate for purposes of the PRA that with Audit Clients, Independence Standard No. 3, circumstances. (July 2000). 146 Independence Standards Board, Independence 149 SECPS, Requirements of Members, at n. Quality Control Review Reports. As Discussions with Audit Committees, Independence 150 We expect that none of the approximately 80 discussed above, the proposed rules Standard No. 1 (Jan. 1999). smaller firms that are not members of the SECPS would require all members of a PAB to 147 SECPS, Requirements of Members, at m. These but would be members of a PAB would have foreign undergo quality control reviews. A PAB requirements are available at www.aicpa.org/ associated firms. members/div/secps/require.htm. 151 SECPS, Requirements of Members, at k. would direct the reviews of all members
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with more than 70 SEC clients.152 04(g)(9), a member firm would notify a disclosure requirements for annual and Reviews of PAB members with 70 or PAB if the firm employs or becomes quarterly reports, registration fewer SEC clients could be conducted associated with an individual during statements, and proxy and information under a review program approved and any period in which that person is statements filed by registrants to ensure monitored by the PAB. subject to a sanction, order, or ruling that investors are informed. The Under the SECPS system, accountants issued by a PAB. This notice would proposed disclosure requirement would already prepare reports at the alert the PAB to consider, during quality provide investors with important conclusion of reviews. Preparation of control reviews, whether the firm and information regarding executive officers, such reports, therefore, is a usual and individual are in compliance with the directors, and director nominees. The customary activity for accountants. We PAB sanction. We anticipate that the hours and costs associated with expect that the SECPS will no longer notice would be relatively short and preparing, filing, and sending these require reviews if our proposed rules are identify the individual, firm, sanction, disclosures constitute reporting and cost adopted. While we expect that our and public report announcing the burdens imposed by each collection of proposed quality control review system sanction. Such a report should take less information. Regulation S–K, however, would provide increased confidence in than an hour to prepare. We estimate historically has carried only one the reliability of audited financial that no more than 10 such reports response and one burden hour because statements, we do not expect that the would be made in any year. the burdens associated with the items preparation of the reports would require Accordingly, compliance with this within Regulation S–K are reflected in more burden hours than is currently provision would require approximately the estimated burdens assigned to each required. While we estimate that there 10 burden hours. form, report, or registration statement. are approximately 1,250 SECPS Thus, member-accounting firms For disclosure to occur under the members (some of whom do not in fact would incur a total of approximately proposed amendment, an individual audit financial statements of public 4,530 burden hours.154 We estimate that would have to be sanctioned by a PAB, companies), we have estimated that approximately 25% of these 4,530 hours not have that sanction reversed, approximately 850 accounting firms would be expended by outside lawyers, suspended, or vacated, and within five would be members of a PAB. while the rest would be incurred in- years from the date of the sanction Accordingly, no new burden would be house. Assuming a cost of $300 per hour become an executive officer, director, or imposed by this aspect of the proposed for outside legal expenses, the cost director nominee of a public company. rules. associated with the burden hours We anticipate that these circumstances Record Retention. Under proposed incurred by outside counsel would be will occur infrequently. We estimated rule 13–04(d)(5), a PAB would adopt $339,750. above that approximately 50 rules or membership requirements that accountants might be sanctioned by a direct member accounting firms to make Information Disclosed by Registrants PAB per year. It is difficult to estimate, and keep for specified periods of time We have proposed an amendment to however, how many of these sanctioned records that are required by professional 155 item 401 of Regulation S–K that individuals might be engaged to serve as standards or that otherwise document would require disclosure if, within the an executive officer or director of a procedures performed and the last five years, any director, person public company. Solely for the purpose resolution of material issues during nominated to be a director, or executive of the PRA, we estimate that this audit and review engagements. officer was sanctioned by a PAB for disclosure would occur approximately Additionally, proposed rule 13–04(f)(2) violations of professional standards or ten times per year. It most likely would would require a PAB to direct its the PAB’s rules or membership appear in a Form S–1 (OMB Control No. members to make and keep, for such requirements and that sanction has not 3235–0065), Schedule 14A (OMB periods as the PAB determines been subsequently reversed, suspended, necessary, records that are necessary for Control No. 3235–0059), or Form 10–K or vacated. This information is (OMB Control No. 3235–0063).156 Such the conduct of quality control reviews. necessary to alert investors of violations The creation and retention of such disclosure may be no more than a few of PAB membership requirements or lines that include a citation to the records already is required by GAAS professional standards by directors, and, therefore, is a usual and customary sanction and clarifying information, if persons nominated to be directors, and any. Because it may be a relatively brief activity within the accounting executive officers. Investors would use profession.153 Accordingly, accounting disclosure, printing and dissemination this information to help them make costs should be inconsequential. We firms would not incur a new paperwork informed investment decisions. The burden associated with this proposed estimate that no more than three burden potential respondents are registrants. hours would be required to prepare and rule. We do not know whether a PAB Below, we estimate that approximately might impose rules requiring longer review such disclosure, for a total 10 registrants per year would make one burden of 30 hours. This burden would retention periods than are currently in disclose each under the proposed place at accounting firms. Any such be divided evenly among Form S–1, amendment. Schedule 14A, and Form 10–K. Our requirement, and resulting incremental The title for the collection of this proposal would therefore increase the burden, would be a function of PAB information is ‘‘Regulation S–K’’ (OMB burden hour inventory for Form S–1 rules. Control No. 3235–0071). This regulation from 196,846 to 196,856, the burden Notices Concerning the Hiring or was adopted pursuant to the Securities hour inventory for Schedule 14A from Retention of Sanctioned Individuals. Act and the Exchange Act and sets forth Finally, under proposed rule 13– 98,868 to 98,878, and the burden hour inventory for Form 10–K from 154 As described in the section entitled 152 The burden imposed by the reports at the ‘‘Applications for Commission Review,’’ above, we 12,309,462 to 12,309,472. conclusion of these reviews is included in the estimate that up to 265 of these hours might instead information collection entitled ‘‘Framework for a be incurred by up to 53 individual accountants, and 156 Item 401, Regulation S–K disclosures are Public Accountability Board—PAB’’ discussed up to 15 of these hours might instead be incurred required by, among other provisions, item 11(k) of above. by up to three audit clients, depending on the Form S–1, item 10 of Form 10–K, and item 7 of 153 See generally, SAS No. 96, AU § 339 (as circumstances. Schedule 14A; 17 CFR 239.11, 240.14a–101, and revised 2002). 155 17 CFR 229.401. 249.310 respectively.
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Solicitation of Comments the accounting profession’s self- would facilitate communications among Pursuant to 44 U.S.C. 3506(c), we regulatory programs. During this these bodies and others. A PAB would be required to meet the solicit comments to: (1) evaluate examination, the POB, which had conditions specified in the proposed whether the proposed collections of overseen the profession’s programs rules to be recognized by the information are necessary for the proper since 1977, voted to disband. Many of the criticisms of the Commission. These conditions include performance of the functions of the accounting profession that existed when Commission oversight and a board agency, including whether the the current self-regulatory process was dominated by persons who are not information will have practical utility; created in 1977 continue to exist today. members of the accounting profession. (2) evaluate the accuracy of our Congressional hearings held in the first To ensure that result, our rules would estimates of the burdens of the proposed half of 2002, reminiscent of those held set a maximum number of accountant- collections of information; (3) determine approximately 25 years before, board members. A PAB, with a whether there are ways to enhance the considered why major corporations significant majority of public members, quality, utility, and clarity of the have failed without adequate warning in a diligent quality control review information to be collected; and (4) the companies’ financial reports. process, effective disciplinary evaluate whether there are ways to Witnesses during those hearings proceedings, the ability to set standards minimize the burdens of the collections expressed a lack of confidence in the or influence standard setters, and close of information on those who are to self-regulatory system and the need for oversight by the Commission, should be respond, including through the use of change.157 in a position to make meaningful automated collection techniques or Our proposals would create the improvements in the quality of audits other forms of information technology. framework for a new private sector and enhance the confidence of investors Persons submitting comments on the regulatory structure for accountants that in both the audit process and in the collection of information requirements audit or review financial statements, or reliability of financial information. should direct the comments to the prepare attestation reports, that are filed The proposal addresses the need for Office of Management and Budget, with the Commission. Under the all accountants providing audit, review Attention: Desk Officer for the proposed rules, these accountants or attest services to Commission Securities and Exchange Commission, would be members of a Public registrants to have a strong, effective Office of Information and Regulatory Accountability Board, or PAB. A organization that could operate in the Affairs, Washington, DC 20503, and Commission registrant engaging an public interest without fear of losing its should send a copy to Jonathan G. Katz, accountant to perform such services funding. We therefore included in our Secretary, Securities and Exchange would be an adjunct member of the framework provisions regarding Commission, 450 Fifth Street, NW., same PAB to which the accountant membership in such an organization, Washington, DC 20549–0609, with belongs. continuous and involuntary funding, reference to File No. S7–24–02. As discussed in detail above, our and an effective disciplinary Requests for materials submitted to objective is to lay the foundation for a mechanism. The proposal also would OMB by the Commission with regard to new, stronger system of private sector allow a PAB to collect fees from its these collections of information should regulation that would enhance investor members and adjunct members to fund be in writing, refer to File No. S7–24– confidence in the audit process and in not only its own administration and 02, and be submitted to the Securities the reliability of the financial operations, but also the administration and Exchange Commission, Records information used to make investment and operations of an accounting and voting decisions. Management, Office of Filings and standard-setting body recognized by the A PAB would oversee the quality of Information Services. OMB is required Commission, which currently is the to make a decision concerning the financial statements relied on by investors by, among other things, FASB. We have included funding for collection of information between 30 the FASB in our proposal because that and 60 days after publication of this directing periodic reviews of accounting firms’ quality controls over their body currently collects funds primarily release. Consequently, a comment to through donations from, and by selling OMB is assured of having its full effect accounting and auditing practices and, when appropriate, disciplining its publications to, accounting firms and if OMB receives it within 30 days of corporations. There is a perception that publication. accountants for deficiencies noted during those quality control reviews or such funding may be increased or VI. Cost-Benefit Analysis otherwise coming to a PAB’s attention. decreased based on the reaction of accounting firms or companies to We are sensitive to the costs and We focused on the need for a PAB to be proposed accounting standards.158 benefits imposed by our rules, and we able to remedy any deficiencies in To have identified certain costs and standards that it may detect during remove this perception, a PAB would benefits of these proposals. We request quality control or disciplinary establish a mandatory and continuous comment on all aspects of this cost- proceedings. The rules provide, source of funding for the FASB. A PAB benefit analysis, including identification therefore, that a PAB also would set, or would collect sufficient fees from its of any additional costs or benefits. We rely on designated private sector standard-setting bodies to set, audit, 158 See, e.g., Stephen Barr, FASB Under Siege, encourage commenters to identify and CFO Magazine, Sept. 1994, at 34, 46, which states supply relevant data concerning the quality control, or ethics standards, and that the FASB reported reduced contributions costs or benefits of the proposed during the debate over the accounting for employee amendments. 157 See, e.g., Accounting and Investor Protection stock options, and Dean Foust, It’s Time to Free the Issues Raised by Enron and Other Public FASB Seven, Bus. Wk., May 3, 1993, at 144, which A. Background Companies: Hearing Before the Senate Comm. on states: ‘‘It’s time to free the FASB Seven [board Banking, Housing, and Urban Affairs (Mar. 19, members] from this outside influence—beginning In the wake of recent corporate 2002). For discussion of the profession in 1977, see, with their financial support. . . Critics contend that failures that caused significant losses to e.g., Staff of Subcomm. on Reports, Accounting, and some executives have threatened to withhold investors and pensioners, Congress, the Management of the Senate Comm. on Government support if FASB doesn’t vote their way. A good Operations, 95th Cong., Report on the Accounting solution is to require that corporations filing Commission, and others have been Establishment: A Staff Study, 7 (Subcomm. Print documents with the SEC pay a small sum each time examining longstanding deficiencies in Mar. 31, 1977). to create a permanent endowment for FASB.’’
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members and adjunct members to fund Accountants and registrants also may disciplining incompetent and unethical the FASB and then transfer those funds benefit from a more streamlined and practices, a PAB would improve the to it. efficient regulatory process. overall quality of the audit, review, and Our proposal would keep the The benefits of a stronger, more attest services. requirements under the current system transparent, and more efficient 4. Improved transparency regarding that we believe increase the quality of regulatory system for the accounting the regulatory system. In order for a PAB audits. Our proposal would place these profession should translate into to earn investors’ trust, investors must requirements, however, in a stronger increased investor confidence in the be able to view the PAB’s regulatory system that is more independent from audit process and in the financial system at work. Our proposals would the profession, more transparent, more information provided to our securities not only encourage ‘‘real-time’’ closely overseen by the Commission, markets. If the rule amendments lead to reporting by the PAB of its regulatory more willing and able to discipline its increased investor confidence in activities, they also would open a PAB’s members, and more efficient in financial reporting, they also may disciplinary proceedings to the public to coordinating the efforts of the various encourage investment and facilitate the same extent that our Rule 102(e) participants in the regulatory process. In capital formation. Issuers, therefore, proceedings are public.159 Open addition, we are adding features to the may be able to lower their cost of proceedings would shed light on a current system, such as public capital, or raise capital where they professional disciplinary process that disciplinary proceedings by a PAB, might have been unable to do so. the AICPA has conducted behind closed increased frequency of reviews of the Additionally, the benefits of enhanced doors. largest firm’s quality control systems, disclosure by directors, director 5. Enhanced disclosure by corporate and requiring maintenance of a central nominees, and officers should translate officers, directors, and director office function with expertise in into enhanced corporate governance in nominees of PAB sanctions. We are accounting and financial reporting registrants. These benefits flow from the proposing that investors be informed if matters. following six points, as well as other an executive officer, director, or person Congressional proposals, suggestions features of our proposal: nominated to become a director has made during the SEC Roundtables, the 1. Independence from the accounting been sanctioned as a member U.K. system of regulation of the profession and assured funding. A PAB accountant by a PAB within the last five accounting profession, and established under our framework would years. We anticipate that a PAB would recommendations submitted by others, be outside the realm of the AICPA. initiate disciplinary proceedings in all of which are discussed above, have Representatives of investors and issuers, cases of incompetence, unethical provided numerous alternatives for the not accountants, would dominate a behavior, or serious breaches of regulation of the accounting profession. PAB’s governing board, would actively professional standards. Sanctions Based on that input, we considered participate in directing quality control imposed following these proceedings, alternative frameworks that would reviews of large accounting firms, and therefore, would be of interest to include, among other things: would evaluate the quality control investors making investment or voting • Different mixes of accountant and reviews of smaller firms. Funding, decisions. ‘‘public’’ representatives on a PAB’s instead of being dependent on the 6. Improved cooperation among governing board; AICPA, would be mandatory and flow standard-setting bodies. As noted by the • Membership for accounting firms from both accountants and registrants. Panel on Audit Effectiveness and others, only, and not for individual accountants Continuous and mandatory funding also one of the limitations of the current or registrants; would be provided for the FASB, which system is a lack of effective • Different funding sources and more sets accounting standards. communications among the various specific methods of collecting fees 2. Periodic reviews. The current entities involved in oversight of the assessed by a PAB; ability of an accounting firm to avoid audit process.160 That Panel • Funding that did not include the periodic reviews of its quality control recommended that the profession’s FASB; system, simply by deciding not to join system of governance be united under a • No standard-setting responsibilities; a regulatory organization, would be POB that oversees standard setting, • More disciplinary authority, removed. Reviews of quality control monitoring, discipline, and including the authority to compel the systems would occur more often for supplemental reviews.161 Our proposals production of documents and testimony some firms and for the first time for reflect the need for greater from persons who are neither members some firms that were not previously communication and coordination nor adjunct members of a PAB; and members of the SECPS. Because among the participants of the regulatory • Foreign accountants as members. registrants would be adjunct members, system. Under our proposed rules, a • An increased level of Commission the payment of fees by registrants and PAB would either set, or rely on oversight over the current self- the cooperation by registrants in a PAB’s designated private bodies to set, audit, regulatory system. quality control reviews and disciplinary ethics, and quality control standards. To Of the alternatives considered, we proceedings, would be assured. the extent that a PAB relies on others to 3. Enhanced quality of audit, review, believe that our proposal would best set these standards, a PAB would and attest services. High quality audit, protect investors. oversee their efforts and encourage review, and attest services form a communication and coordination B. Potential Benefits of the Proposed cornerstone of the Commission’s full among them. In addition, a PAB would Rules disclosure system. A PAB, after conduct periodic meetings with these Potential benefits to the proposed rule conducting an appropriate disciplinary bodies and include in those meetings amendments include increased investor process, could suspend individuals and the bodies that set accounting principles confidence in the audit process and in firms from conducting audits and the reliability of reported financial reviews of financial statements and from 159 17 CFR 201.102(e)(7). information, and enhanced corporate preparing attestation reports filed with 160 The Panel on Audit Effectiveness, Report and governance resulting from more us, or impose other appropriate Recommendations, at 138–41 (Aug. 31, 2000). disclosure about directors and officers. remedial or disciplinary sanctions. By 161 Id.
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and other standards affecting the and oversees those reviews. We assume The ISB, which from 1997 to 2001 accounting profession. The primary that those firms will cease to pay the undertook the development of auditor purpose for these meetings would be to SECPS to perform those functions once independence standards, had a part- facilitate an understanding of one a PAB is in place and that the costs time board of eight members, three full- another’s projects, which may lead to attendant to our proposals will be offset time staff and one administrative better coordinated and more efficient by that cost savings.162 The proposed employee. The annual budget for the standard-setting within the profession. framework may result in incremental ISB was approximately $2,000,000 to We request comment on each of the costs to small accounting firms that do $2,200,000. items identified above. Would they not currently undergo quality control The SECPS has an annual budget of result in higher quality audits? Would reviews, to Commission registrants, and less than $1,000,000, most of which they result in enhanced investor to other accounting firms. Incremental relates to travel and lodging expenses. protection and investor confidence? costs could result from the performance SECPS members are not compensated Would the proposed rules, if adopted, of functions by a PAB that are for their time, and except for a $300,000 yield other benefits? Is it possible to performed today by no one. Finally, the per year charge that the SECPS pays to quantify the benefits of the proposed proposal may result in redistributed the AICPA, the AICPA pays for the rules? costs. Funding for the FASB, for SECPS staff. The AICPA annual report, Accountants and registrants also may example, would not likely increase as a however, does not specifically provide benefit from a more coordinated and result of the proposals, but the burden the cost of its peer review program.164 efficient regulatory process. As noted, might be redistributed from registrants We recognize that a proposed PAB our proposals would centralize into one and firms that make voluntary would not be identical to any of these independent body the quality control contributions to the FASB, or those that organizations. They provide guidance, review functions previously performed purchase a significant number of its however, to the cost of a comparably- by the POB and its staff, the SECPS’s publications, to all registrants and sized organization within the Peer Review Committee, the SECPS accounting firms that benefit from accounting profession. The FAF, for Executive Committee, the QCIC, and FASB’s standards.163 example, funds standard-setting portions of the AICPA’s disciplinary We discuss each category of costs in organizations that conduct neither on- program. This body also would facilitate more detail below in relation to the site reviews of the performance of communications among various costs needed to fund a PAB (and the accounting firms nor disciplinary standard-setting bodies. We believe that FASB), the imposition of costs on proceedings. The FAF budget, however, a more efficient and leaner regulatory accounting firms and registrants, and might provide some evidence of the system, and a more coordinated the costs of preparing disclosure. revenues needed to run an organization standard-setting process, would benefit The proposed rules would entail costs within the accounting regulatory system all participants in the financial to a PAB for its operations. Our that has 125 to 150 employees and reporting process. Among other things, proposals would leave many facets of a permanent facilities. The amounts paid we believe that these changes would PAB’s operations to its discretion. It is to the FASB Chairman and FASB reduce uncertainty about the regulatory difficult, therefore, to estimate the members also might provide an and disciplinary system and would budget that would be required to fund indication of the amount of increase compliance. a PAB’s full range of activities. compensation required to attract a full- The Commission seeks comment on Nonetheless, to estimate the funds that time Chairman or Vice Chairman to a the benefits of the proposed rule. What a PAB may require, we examined the PAB. methods are available to estimate the budgets of other accounting regulatory The POB’s budget undoubtedly would benefits to investors and others that bodies. The FAF, for example, has be too small to fund a PAB, due to the would result from a private sector approximately 140 employees and more ‘‘hands-on’’ approach that we regulatory scheme for accountants? We reported 2001 net operating revenues of believe a PAB would take when request comment, including supporting $22,137,000. The POB was smaller, with directing large firms’’ reviews, data if available, on these benefits, and five part-time board members, a evaluating smaller firms’ reviews, commenters with quantitative or permanent staff of five full-time conducting supplemental reviews, empirical data on these issues are professional employees, seven part-time conducting disciplinary proceedings, invited to provide that data for our professional employees, and two and improving communications and consideration. administrative employees. The POB’s coordination among various standard- C. Potential Costs of the Proposed Rules annual budget, without special projects, setting bodies. Even when the funds We are sensitive to the costs that was approximately $3,500,000, although budgeted to the SECPS are added to the might result from our rules. We believe under the February 2001 charter, the POB’s budget, the total amount might that the costs related to the proposals in POB could have increased its budget to underestimate the amount required for a this release would fall within three $5,200,000 per year. The POB Chairman PAB due to the SECPS’s reliance on general categories: costs that are similar received $70,000 per year, the Vice volunteers from the accounting firms to costs currently borne, incremental Chairman $60,000, and members and on the payment of certain expenses costs, and costs that will be $50,000. by the AICPA. We anticipate that the redistributed among market cost of a PAB would be at least as much participants. We recognize that 162 Because a PAB would have discretion in as the cost to run the POB and the redistributed costs are not mutually determining the nature and extent of procedures to SECPS, plus the cost of services be performed each year, we cannot reliably estimate exclusive of costs already borne. provided to those organizations by what those additional costs may be. volunteers. Moving these costs to a PAB The proposal may result in costs 163 We recognize that some portion of the similar to those already exisiting. SECPS voluntary contributions may be derived from fees would not result in an incremental cost. member accounting firms already bear paid by registrants to their auditors. Direct payment by registrants may lead to reduced audit fees or a 164 The AICPA notes expenses related to significant costs related to quality decrease in the rate of audit fee increases. To that ‘‘professional examinations’’ of $12,121,000, but it control reviews and to the POB-SECPS extent, our proposals should have no redistributive is unclear what amounts are included in this regulatory structure that administers effects. category. AICPA, Annual Report 2000–2001, at 26.
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Incremental costs may occur, however, by a PAB, among other things, would We invite comment and data on from the performance of additional add to a PAB’s costs. estimated revenues needed by a PAB to functions. Because our proposal leaves conduct the programs described in this Costs To fund the FASB Through a PAB the identification of, and procedures for, release and our proposed rules. Are our these functions to the discretion of a Our rules would impose costs on a estimates correct? We also seek PAB, we cannot quantify those costs. PAB to fund the FASB. The revenues comment on the extent to which those We anticipate that quality control and expenses of the FASB are generally costs would be incremental costs, and reviews by a PAB would entail greater known. According to the 2001 Annual the extent to which the funding costs costs than those for quality control Report published by the FAF, the FASB may be redistributed among various reviews by the POB. A PAB, for received contributions of $5,113,000, market participants. We request example, may incur significant costs to sold subscriptions and publications for comment on the costs that would be visit the offices of accounting firms $14,818,000, and had direct costs of imposed on a PAB to fund the FASB. during quality control reviews. If a PAB sales of $1,586,000. The FASB, Are our estimates correct? therefore, had revenues of $19,931,000 were directing a review, a PAB member Imposition and Distribution of Costs or staff would conduct on-site visits to and revenues minus costs of sales equal to $18,345,000. The FASB and the Incurred by Accounting Firms and numerous and widely-dispersed offices Registrants of the accounting firm. Even if a PAB GASB, also overseen and financed were not directing a quality control through the FAF, had combined net This section of the cost-benefit review but monitoring the review for its operating income of $22,137,000. The analysis discusses how the costs thoroughness and impartiality, we FAF Annual Report does not break out imposed by the proposal would be expect that a PAB or its staff would expenses between the FASB and GASB, distributed among accounting firms and attend conferences between the but it reports total program expenses of registrants. Under our proposal, the costs to fund a PAB and the FASB reviewer and the firm being reviewed, $18,345,000 and total support expenses would be paid through fees assessed by and conduct on-site inspections during of $4,883,000, for total expenses of a PAB. We expect a PAB to assess such the conduct of the review. Fees to $23,228,000 and a combined operating fees according to schedules that recover these costs, however, would be loss (i.e., revenues minus expenses) of apportion fees based on relative size of assessed separately from the more $1,091,000. The FAF Annual Report accounting firms and registrants such general fees imposed on all registrants also notes a decline in investments and that fees would not be significant to any and firms. As noted, we have proposed unrestricted net assets of $2,342,000, one entity. We also expect each that each firm pay the cost of its own from $28,812,000 to $26,470,000. The accounting firm to continue to pay the quality control reviews, as they do FAF has indicated to our staff that it has 141 employees, with 65 assigned to the costs of its own quality control reviews. under the SECPS peer review system. As noted, accounting firms and To the extent that the cost of a PAB FASB, 25 assigned to the GASB, and 51 assigned as FAF administrative support registrants currently bear the costs directed or approved quality control associated with the self-regulatory review exceeded both the cost of a peer staff for both the FASB and GASB. We understand that the FASB Chairman is system. Both accounting firms and review under the current SECPS peer registrants make contributions to the review system and the cost of paid $535,000 per year and that each of the other six full-time FASB members FASB and buy FASB publications. professional services donated to the Accounting firms pay fees to the SECPS SECPS and its committees, it would be receive $435,000 per year. An estimate of the funds that a PAB and other organizations to fund the an incremental cost. At this point, current peer review and professional however, we are unable to quantify that would have to collect each year for the FASB, therefore, might range from $20 standard-setting processes, and they pay cost. We also anticipate that incremental the costs of their own peer reviews. costs may result from a PAB conducting million to $24 million. Some registrants and accounting firms (the two groups Registrants pay increased audit fees to disciplinary hearings, preparing records compensate accounting firms for of proceedings, and monitoring that would pay fees to fund the FASB under our proposals) already bear these conducting peer reviews and for other compliance with sanctions. professional expenses. To the extent A PAB may incur costs attendant to costs through voluntary contributions and purchases of FASB publications. that a registrant or accounting firm an open and deliberative standard- makes donations to the FASB or setting process. These costs may include The proposals, however, might result in a more even redistribution of these costs purchases FASB publications, a hiring staff who are experts not only in reduction in those amounts would offset a given subject area, but also experts in among all registrants and accounting firms, not simply those wishing to make the new fees paid to a PAB. To the drafting standards. These costs may also extent that the SECPS and other contributions or purchase large volumes include hiring staff for the preparation organizations no longer would perform of publications. We believe that by and publication of standards. If a PAB peer reviews or conduct similar spreading the costs more evenly, we elects not to set standards but to programs after a PAB begins operations, would enhance investor confidence by designate other private sector bodies to the reduction in costs associated with promoting a system whereby those with set them, a PAB would incur costs the SECPS self-regulatory system would an interest in the system do not have a related to its oversight of those bodies, offset new costs imposed by the PAB. larger role in funding it. In any event, including costs related to reviews of These offsets would reduce the net or the fees an accounting firm or registrant their standards and other documents. incremental cost of a PAB-based system. would pay to a PAB to fund the FASB Finally, a PAB would have costs Not all SECPS members would be would be largely offset by reductions in associated with our oversight. The members of a PAB. Of approximately contributions to the FASB and the preparation of an initial application and 1,250 SECPS members, we estimate that elimination of costs for FASB’s ongoing public reports, keeping quality publications.165 control review records for our requested comment, however, regarding whether the FASB should continue to generate revenues inspection, and preparing reports and 165 Our proposal anticipates full funding for the from the sale of its publications, and replace only records of disciplinary proceedings so FASB, with the FASB appropriately reducing or the donations it receives with fees collected by a we may review the sanctions imposed eliminating the cost of its publications. We have PAB.
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approximately 850 audit the financial should be able to construct a fee the Paperwork Reduction Act, we statements of Commission registrants schedule that is fair and equitable. estimated the number of burden hours and approximately 400 do not. All 1,250 Assuming that the FASB and a PAB that would be incurred by a PAB, firms now contribute to the SECPS each would require $20 million to fund accountants, audit clients, and budget of approximately $1 million and its administrative functions and registrants as a result of the proposed to the POB’s budget of approximately operations, an average of approximately rules. This ‘‘paperwork burden’’ is $3.5 million. Because 400 of the SECPS $2,000 per member and adjunct member described in detail in Section V. of this member firms would not be required to would be assessed. Larger registrants release. join a PAB, any amounts paid by those and firms would be assessed A PAB would incur costs as a result 400 firms might have to be borne by significantly larger amounts; smaller of complying with the information accounting firm and registrant members firms and registrants would pay less. collection requirements in the proposed of a PAB, to the extent a PAB performs Finally, we believe that certain firms rules. These requirements are discussed similar functions. would face costs in maintaining a in detail in Section V., above. Solely for We also estimate that approximately central office function. Many firms the purposes of the Paperwork 80 domestic small accounting firms that already have procedures for Reduction Act, we estimated that a PAB audit the financial statements of consultation with a central office and would incur 10,140 burden hours as a Commission registrants are not members resolution of differences of opinion result of the proposed rules. Certain of of, and do not pay fees to, the SECPS or between the central office and other these burden hours, specifically those the AICPA. Amounts paid by these 80 offices. The rule would require a PAB to associated with an initial submission to firms to a PAB, therefore, would not be ensure that member firms maintain this the Commission would be non-recurring offset by reduced payments to the function. Those firms that do not costs for any PAB. All other burden SECPS or AICPA. We expect, as noted, currently do so, therefore, could face hours would recur annually. We that a PAB would assess fees based on costs to establish and maintain a central estimate that of the total burden hours, an entity’s size or other relevant criteria. office function that would likely not be 75% of them would be incurred by the These firms, however, for the first time, offset from any other source. in-house staff of a PAB and 25% of them may incur costs related to the conduct We solicit comments on the potential would be incurred by outside counsel. of quality control reviews. Because of costs that would be imposed on Assuming a rate of $100 for in-house the relatively small size of these firms, registrants and accounting firms. What staff, a PAB would incur a cost of we anticipate that large, automated types of additional costs might be $760,500 for in-house work. Assuming a quality control systems would not be incurred? For example, if an accounting rate of $300 for outside counsel, a PAB necessary. Nonetheless, the incremental firm currently does not have a central would incur a cost of $760,500 for work costs of establishing controls and office function, what would be the costs performed by outside counsel. Under preparing and paying for reviews may associated with creating and these assumptions, a PAB would be significant to a small firm. Some of maintaining one? We seek comment on therefore expend approximately these costs might be passed on or our assumptions about which costs $1,521,000 on paperwork requirements. redistributed to the firm’s audit clients would be offset and which would be Accountants also would incur costs as that are Commission registrants, but incremental costs. Is it possible to a result of complying with collection of such a redistribution would not affect quantify the costs discussed? We solicit information requirements that would be the aggregate incremental cost of these quantitative data to assist in our imposed by the proposed rules. These firms’ reviews. assessment of the compliance costs requirements are discussed in detail in In addition to the approximately 850 related to a PAB. Section V, above. Solely for purposes of accounting firms that would be Our proposal would result in the PRA, we estimated that accountants members of a PAB, approximately differences in the timing and conduct of would incur 4,530 burden hours as a 16,242 public companies and 5,587 quality control reviews of those result of our proposed rules. As investment companies, as adjunct accounting firms with more than 70 SEC discussed above, we estimated that as Clients and those with 70 or fewer SEC members, would pay fees to a PAB.166 many as approximately 15 of these Clients. From a cost-benefit perspective, By creating a base of at least 20,000 hours might be incurred by audit clients is this an appropriate dividing line? If paying adjunct members,167 a PAB as opposed to accountants. We estimate not, what should be the cutoff, if any? that 75% of the 4,530 hours would be 166 According to OMB Active Information We solicit any quantitative data that incurred in-house, and that 25% would Collections as of April 30, 2002, the following may be helpful in making this be incurred by outside counsel. Based number of responses are submitted annually on the determination. We also request data on on staff experience, we estimate that the following forms: Form 10–K—10,381; Form 10– whether such costs would be costs that hours expended in-house by KSB—3,641; Form 11–K—774; Form S–1—3,617. already are being borne by the We estimate that only 40 percent of the filers on accountants would cost approximately Form S–1 will include financial statements and that accounting profession or others, $100 per hour. We estimate that outside the remainder are reporting companies making incremental costs, or a redistribution of legal work would cost $300 per hour. repeat filings. Therefore, to avoid duplication in costs among market participants. Under these assumptions, the in-house determining the number of registrants filing hours would result in a cost of $339,750 financial statements with the Commission, we have Costs of Complying With Collections of × and the hours incurred by outside reduced this number to 1,446 (3,617 .4). Information 167 If the Commission determines to include the counsel would result in a cost of approximately 865 investment advisers, 8,100 The proposed rules would impose $339,750. Thus, the cost to accountants broker-dealers, 950 transfer agents, and the auditors costs associated with disclosure, record of information collection requirements of their financial statements within the scope of the retention, notice, and other information rules, this base may be significantly expanded. In would be $679,500. addition, a PAB might determine to assess fees to collection requirements. For purposes of Finally, registrants would incur costs investment companies based on the numbers of in complying with a new disclosure portfolios, in the case of mutual funds and unit end management investment companies, 14,451 requirement under the proposed rules. investment trusts other than insurance company sub-accounts of insurance company separate separate accounts, and sub-accounts, in the case of accounts, and 9,940 portfolios of unit investment Registrants would be required to make insurance company separate accounts. Currently, trusts other than insurance company separate disclosure if a director, person there are approximately 8,364 portfolios of open- accounts. nominated to be a director, or executive
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officer was, in his or her capacity as a statements, or prepare attestation eroding their ability to compete for the PAB member accountant, sanctioned by reports, filed with the Commission. We provision of audit services with larger a PAB for violations of professional have identified two possible areas audit firms. Alternatively, these audit standards or the rules or membership where the proposed rules could place a firms with relatively few SEC clients requirements of the PAB within the burden on competition. A possible may choose to withdraw providing previous five years, and that sanction impact on competition could occur as a services to SEC registrants in order to has not been subsequently reversed, result of: (1) Accountants and registrants avoid these additional costs. This may suspended, or vacated. For purposes of being members and adjunct members, also result in less competition for the the PRA, we estimated that registrants respectively, of a PAB in order to satisfy provision of audit services to some set would incur 30 burden hours per year conditions necessary to make financial of smaller SEC registrants. in connection with this proposed rule. statements and attestation reports We request comment regarding the Thus, registrants would incur a cost acceptable for filing with the degree to which our proposal would associated with the 30 hours per year Commission, and (2) new costs placed have harmful competitive effects on spent on the proposed disclosure on small accounting firms that currently such small firms. We also request requirement. We solicit comments on are not subject to periodic quality comment on any indirect effects on the costs of complying with the control reviews. To the extent that a these firms’ audit clients, including collections of information requirements PAB uses fee schedules based on the whether these costs might discourage that would be imposed by the proposed relative size of registrants and some companies from making an initial rules. accounting firms, we would expect that public offering or entering our securities there would not be a significant burden D. Request for Comments markets. imposed on a substantial number of Section 2(b) of the Securities Act,170 We request comment on all aspects of small accounting firms and small section 3(f) of the Exchange Act,171 and this cost-benefit analysis. Would the registrants. section 2(c) of the ICA,172 require us, primary benefits of the proposal be Any competitive impact stemming when engaging in rulemaking that enhanced investor confidence and from membership of accountants in a requires us to consider or determine corporate governance? Are there other PAB in order to provide audit, review, whether an action is necessary or significant benefits we have not or attest services to a Commission appropriate in the public interest, to discussed? Are we correct in our registrant must be balanced against the consider, in addition to the protection of assumption that the proposal would need for investors to have confidence in investors, whether the action will entail costs similar to those already the quality of audits and in the integrity promote efficiency, competition, and incurred, incremental costs, and of the financial information that fuels capital formation. We believe that the redistributed costs? Are there other our securities markets. As noted above, proposed rules would promote market categories of costs we have not accountants are assigned critical roles efficiency and capital formation by discussed? To assist the Commission in under the securities laws and our enhancing confidence in the financial its evaluation of the costs and benefits regulations, including reviewing and information provided by registrants and that may result from the proposed rules certifying financial statements and examined or reviewed by accountants. discussed in this release, we request reporting their opinions on those Investors would have more confidence that commenters provide views and data statements directly to investors. If that: (1) Accounting firms’ quality relating to any costs and benefits investors do not believe in the integrity control systems reasonably assure the associated with the proposed rules. Is it and competence of the accountants performance of high quality audit, possible to quantify the costs and providing those opinions, then investors review, and attest services and that benefits discussed? What methods might lose faith in the integrity of individual accountants are adhering to should we employ in attempting to reported financial information and lose those systems; (2) incompetent or place values on the costs and benefits? confidence in our markets. Our rule proposals are intended to provide a unethical accountants are being VII. Consideration of Impact on the structure for a regulatory system that identified and appropriately Economy, Burden on Competition, and would foster the confidence of disciplined; and (3) there are direct Promotion of Efficiency, Competition, investors. lines of communication between quality and Capital Formation As noted in our cost-benefit analysis, control reviewers who discover For the purposes of the Small firms that currently do not undergo problems with audit, quality control, Business Regulatory Enforcement periodic quality control reviews would ethics, or other standards and the body Fairness Act of 1996,168 we are have additional costs related to those or bodies that can change those requesting information regarding the reviews.169 We estimate that this could standards. potential impact of the proposals on the occur for approximately 80 audit firms The possible effects of our rule economy on an annual basis. who are not currently members of the proposals on efficiency, competition, Commenters should provide empirical SECPS. These additional costs might and capital formation are difficult to data to support their views. also lead to an impact on competition. quantify. We request comment on these Section 23(a)(2) of the Exchange Act Under our proposals, these same audit matters in connection with our requires us, when adopting rules under firms with relatively few SEC clients proposed rules. the Exchange Act, to consider the would be members of a PAB. The VIII. Initial Regulatory Flexibility Act impact on competition of any rule we imposition of PAB-related costs might Analysis adopt. The proposed rules are intended lead to higher audit fees by these firms, to create a framework for a new, This Initial Regulatory Flexibility Act independent, private-sector regulatory 169 As noted in our cost-benefit analysis, even Analysis has been prepared in structure for oversight of accountants firms that currently undergo SECPS reviews may accordance with 5 U.S.C. 603. It relates incur incremental costs associated with PAB quality who audit or review financial controls. Because a PAB would have discretion in determining the nature and extent of procedures to 170 15 U.S.C. 77b(b). 168 Pub. L. No. 104–121, tit. II, 110 Stat. 857 be performed each year, we cannot reliably estimate 171 15 U.S.C. 78c(f). (1996). what those additional costs may be. 172 15 U.S.C 80a–2(c).
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to proposed revisions to rule 1–02 173 • Provide for more Commission members of the accounting profession, and rule 2–01 174 of Regulation S–X, the oversight of the audit quality control and being subject to the Commission’s proposed addition of Rules 13–01 process; oversight. through 13–07 to Regulation S–X, and • Subject to periodic quality control Disclosure would be required in proposed revisions to Item 401 of reviews accounting firms that audit or Commission filings if an executive Regulation S–K.175 The proposals would review registrants’ financial statements officer, director, or director nominee create the framework for a new private or provide attestation reports; had been, in his or her capacity as a sector regulatory structure for oversight • Establish a consistent source of PAB member accountant, sanctioned as of accountants that audit or review funds for the regulatory and accounting a member accountant by a PAB within financial statements, or prepare standard-setting processes, which is not the previous five years and that sanction attestation reports, that are filed with dependent on voluntary contributions had not been reversed, suspended, or the Commission. by the accounting profession; vacated. • For larger firms, replace ‘‘firm-on- A. Reasons for the Proposed Action firm peer reviews’’ with PAB-directed C. Legal Basis In the wake of recent corporate reviews and assure that reviews of We are proposing the rule failures that caused significant losses to smaller firms’ quality controls are amendments and new rules under the investors and pensioners, Congress, the conducted under programs that, among authority set forth in Schedule A and Commission, and others have been other things, are approved by a PAB, use Sections 2, 4, 5, 6, 7, 8, 10, 11, 19, and examining longstanding deficiencies in a PAB’s procedures, and provide for a 28 of the Securities Act; Sections 2, 3, the accounting profession’s self- PAB evaluation of each review; and 9, 10, 10A, 12, 13, 14, 15, 17, 23, and regulatory programs. During this • Give the PAB the ability to 36 of the Exchange Act; Sections 5, 10, examination, the POB, which had discipline, in a public forum, 14, and 20 of the PUHCA; Sections 304, overseen the profession’s programs accounting firms and individual 305, 307, 308, 309, 310, 314, and 319 of since 1977, voted to disband, leaving accountants for incompetent or the Trust Indenture Act of 1939 (‘‘Trust the profession without its ‘‘conscience unethical conduct, or other violations of Indenture Act’’); Sections 6, 8, 20, 30, and critic.’’ 176 The consequences of not professional standards, and to discipline 31, and 38 of the ICA; and Sections 203, remedying the problems we have accounting firms for not having 206A and 211 of the Advisers Act. outlined in more detail above are sufficient quality control systems or not D. Small Entities Subject to the significant to the quality of the audit complying with them. Proposed Rules process and the reliability of the Under the proposed rules, an SEC financial information disseminated to registrant’s financial statements would The proposals would affect small investors. We have continuing concerns not comply with Commission registrants and small accounting firms about the oversight of the accounting requirements unless the accountant who that are small entities. Exchange Act profession, including the effectiveness audited or reviewed those statements is Rule 0–10(a) 177 and Securities Act Rule of the quality control review process. a member of a PAB. Attestation reports 157 178 define a company to be a ‘‘small Without rules such as those we are would not comply with Commission business’’ or ‘‘small organization’’ if it proposing today, we are concerned that requirements unless prepared by had total assets of $5 million or less on effective oversight will not be outside accountants who are members the last day of its most recent fiscal year. accomplished. of a PAB. Furthermore, an SEC We estimate that, as of February 20, registrant’s financial statements and 2002, approximately 2,500 companies B. Objectives attestation reports contained in or were small entities, other than Our objective is to lay the foundation accompanying an SEC registrant’s investment companies. for a new, stronger system of private reports or registration statements would For purposes of the ICA, Rule 0–10 179 sector regulation that would enhance not comply with Commission defines ‘‘small business’’ to be an investors’ confidence in the audit requirements unless the registrant is an investment company with net assets of process and in the reliability of the adjunct member of, and thereby bound $50 million or less as of the end of its financial information used to make to cooperate in any review or most recent fiscal year. We estimate voting and investment decisions. Our proceeding commenced by, the same that, as of May 17, 2002, approximately proposals, among other things, would PAB as its accountant. 225 investment companies met this facilitate the formation of a stronger and A PAB would oversee the quality of definition.180 more independent system of private financial statements relied on by Our rules do not define ‘‘small sector regulation that would enhance investors by, among other things, business’’ or ‘‘small organization’’ for investors’ confidence in the quality of administering a program of periodic purposes of accounting firms. The Small the audit process and in the integrity of reviews of accounting firms’ quality Business Administration defines small reported financial information. The controls and, when appropriate, business, for purposes of accounting system, among other things, would: disciplining accountants for deficiencies firms, as those with under $6 million in • Move the system of regulation noted during those quality control annual revenues.181 We have only outside the AICPA and place it within reviews or that otherwise come to a limited data indicating revenues for the control of the representatives of PAB’s attention. A PAB also would set, accounting firms, and we cannot public; or rely on designated private sector estimate the number of firms with less standard-setting bodies to set audit, than $6 million in revenues that 173 17 CFR 210.1–02. quality control, and ethics standards, 174 17 CFR 210.2–01. and to facilitate communications among 177 17 CFR 240.0–10(a). 175 17 CFR 229.401. 178 17 CFR 230.157. 176 Accounting and Investor Protection Issues these bodies and others. To be 179 Raised by Enron and Other Public Companies: recognized by the Commission, a PAB 17 CFR 270.0–10. Hearing Before the Senate Comm. on Banking, would be required to meet the 180 See Proposed Amendments to Investment Company Advertising Rules, Release No. 33–8101 Housing, and Urban Affairs (Mar. 19, 2002) conditions specified in the proposed (statement of Charles A. Bowsher, Chairman, Public (May 17, 2002), at n.142, 67 FR 36712 (May 24, Oversight Board, Former Comptroller General of the rules, including having a board 2002). United States). dominated by individuals who are not 181 13 CFR 121.201.
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practice before the Commission. We below, and in our cost-benefit analysis, offset, however, by reductions in costs request comment on the number of many accountants already undergo currently paid to the SECPS and AICPA accounting firms with revenue under $6 periodic quality control reviews. For and amounts donated and paid to the million. small firms currently participating in FASB. In addition, many of these costs Our rules do not define ‘‘small these programs, the incremental costs already are incurred to comply with business’’ or ‘‘small organization’’ in should not be significant. For small requirements under GAAS to have an terms of private sector regulatory accounting firms not currently adequate quality control system.185 organizations such as a PAB. Because no participating in these programs, the As noted in our cost-benefit analysis, such entity exists at this time, we incremental costs may be greater and a the vast majority of firms practicing cannot reliably estimate its revenues or firm may attempt to pass these costs to before the Commission already are expenses. In addition, we cannot know a registrant-audit client. Even these involved in a peer review program. For in advance whether more than one PAB firms, however, as explained below, these firms, any costs imposed by the would exist, and if so, whether one PAB currently must have a quality control proposed rules of maintaining quality may be a small entity while another system in place. The direct and indirect control systems and having quality would not be a small entity. A PAB, incremental fees imposed on small control reviews should be offset to a however, would collect fees to fund not registrants, therefore, should not have a large degree by reductions of fees paid only its own operations but also significant economic impact on a to the SECPS or to others for such approximately $20 to $24 million to substantial number of small registrants. reviews. fund the FASB. It would appear, We also have proposed a disclosure We have estimated, however, that therefore, that based on its revenues and requirement in Regulation S–K for approximately 80 domestic small scope of operations a PAB would not be registrants with an executive officer, accounting firms that audit the financial a small entity. director, or director nominee who, in statements of Commission registrants We request comment on whether a his or her capacity as a PAB member are not members of the SECPS and do PAB would be a small entity. What accountant, was sanctioned by a PAB not participate in the SECPS peer criteria should be used to make this during the past five years. The review program. To the extent that such determination? If more than one PAB is information required to make this a firm does not participate in a peer formed and recognized by the disclosure, when necessary, would be review conducted by another Commission, is it likely that there readily available from the individual organization, it may incur costs for the would be both small and large PABs? and from a PAB’s public reports. The first time related to the conduct of E. Reporting, Recordkeeping and Other proposed rules, therefore, would impose quality control reviews. Because of the Compliance Requirements very low incremental costs, if any, for relatively small size of these firms, the collection and retention of however, we anticipate that large, The proposed rules would affect small information. In addition, in the automated quality control systems accounting firms and small audit clients relatively rare instances where the would not be necessary.186 We also note of accounting firms. information would be disclosed, we that these firms already likely incur Registrants anticipate that it would consist of no costs related to the establishment and more than a few lines in a document The proposed rules would impose maintenance of a quality control system and that drafting, reviewing, filing, as required by GAAS, which states: minor reporting, recordkeeping, and printing, and dissemination costs, A firm of independent auditors needs to compliance requirements on small therefore, would be insignificant. entity registrants related to the comply with the quality control standards in In addition, we have not added this conducting an audit practice. Thus, a firm operations of a PAB. disclosure requirement to Regulation Registrants would provide testimony should establish quality control policies and S–B,182 which, in lieu of Regulation S– and documents, upon request, to a PAB. procedures to provide it with reasonable K, is the source of disclosure assurance of conforming with generally The proposed rules do not direct a requirements for ‘‘small business accepted auditing standards in its audit registrant, however, to keep or prepare issuers.’’ 183 A small business issuer is engagements. The nature and extent of a documents or to maintain them in any one that has revenues of less than $25 firm’s quality control policies and procedures specific form. Any burden under the million, is a U.S. or Canadian issuer, is depend on factors such as its size, the degree proposals would relate to releasing of operating autonomy allowed its personnel not an investment company, and, if a documents and providing testimony to and its practice offices, the nature of its majority owned subsidiary, has a parent practice, its organization, and appropriate the PAB in supplemental reviews and 184 that also is a small business issuer. 187 disciplinary proceedings against the cost-benefit considerations. Accordingly, the disclosure requirement registrant’s accountant. Although we should not impose a significant cannot estimate at this time how often 185 See SAS No. 25, AU § 161. economic impact on a substantial 186 these events would occur, we do not See, AICPA, System of Quality Control for a number of small registrants. CPA Firm’s Accounting and Auditing Practice, at 4, expect this burden to have a significant We request comment on the reporting, QC § 20.04, which states: economic impact on a substantial recordkeeping, and other compliance A firm’s system of quality control encompasses number of small entities. requirements applicable to small entity the firm’s organizational structure and the policies Registrants would pay fees assessed adopted and procedures established to provide the registrants. Please quantify, if possible, by a PAB and, through increased audit firm with reasonable assurance of complying with what the likely burden would be. professional standards. The nature, extent, and fees, might pay for increased costs formality of a firm’s quality control policies and incurred by accounting firms, as Accountants procedures should be appropriately comprehensive discussed below. We anticipate that a The proposed rules might impose and suitably designed in relation to the firm’s size, PAB would impose fees based on the the number of its offices, the degree of authority incremental costs on some small allowed its personnel and its offices, the knowledge relative size of registrants and accounting firms. These costs may be and experience of its personnel, the nature and accounting firms, such that the fees complexity of the firm’s practice, and appropriate would not be significant to any one 182 17 CFR 228. cost-benefit considerations. entity. Possible increases in audit fees 183 17 CFR 228.10. 187 SAS No. 25, AU § 161.02 (as revised by SAS also should not be significant. As noted 184 17 CFR 228.10(a)(1). No. 96, Apr. 2002).
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Nonetheless, we recognize that the 4. An exemption from coverage of the nature of the potential impact on those costs of preparing and paying for proposed amendments, or any part small entities, how to quantify the reviews may be significant to a small thereof, for small entities. number of small accounting firms that firm. To address this concern, our Congressional proposals, suggestions would be affected by the proposals, and proposals indicate that smaller firms made during the SEC Roundtables, the how to quantify the impact of the would be required to have a review only U.K. system of regulation of the proposed amendments. once every three years, instead of the accounting profession, and Commenters are requested to describe annual reviews required of larger firms. recommendations submitted by others the nature of any impact and provide have provided numerous alternatives for We invite comments on the empirical data supporting the extent of the regulation of the accounting anticipated incremental costs to small the impact. Such comments will be profession. firms of participating in the quality considered in the preparation of the After full consideration, we have control review program discussed in Final Regulatory Flexibility Analysis, if this release. What would the reporting, included provisions in our proposed rules specifically designed to reduce the the proposed rules are adopted, and will recordkeeping, and other compliance be placed in the same public file as costs be? Please quantify, if possible, impact on small entities. We have provided for: comments on the proposed rules. any likely burden on small accounting • firms. A PAB to tailor fees based on a IX. Codification Update registrant’s or accounting firm’s size or In addition to paying costs associated other relevant criteria; The Commission proposes to amend with quality control reviews, accounting • Small firms to have triennial, as the ‘‘Codification of Financial Reporting firms would pay fees imposed by a PAB opposed to annual, quality control Policies’’ announced in Financial to fund not only the PAB’s operations reviews; and Reporting Release No. 1 (April 15, but also the operations of the FASB. We • Disclosure to be made by registrants 1982): expect, however, that a PAB would complying with Regulation S–K, but not By adding a new section 700, assess fees according to schedules based by small business issuers under on an entity’s size or other relevant captioned ‘‘Matters Relating to a Public Regulation S–B. Accountability Board,’’ to include the criteria, such that the fees paid would In drafting requirements for a PAB, text in the adopting release that not be significant to any one entity. we have made use of certain standards discusses the final rules, which, if the An accounting firm or individual that set performance goals. A PAB proposals are adopted, would be accountant also might incur costs if the would have the ability to design its substantially similar to Section III of firm or individual becomes the subject rules, membership requirements, this release. of, or is required to participate in, a policies, and procedures to best achieve PAB’s disciplinary proceedings. At this the goals discussed in this release. The Codification is a separate time, however, we cannot estimate the Additional alternatives would be to publication of the Commission. It will likely burden that would fall on small exclude small entities from the rules or not be published in the Code of Federal accounting firms as a result. In any case, to provide an extended period of time Regulations. we believe that they will not have a for them to adhere to the rules. Because X. Statutory Authority significant economic impact on a of the importance of high quality audits substantial number of small entities. We for all Commission registrants, we We are proposing the rule request comment on any likely burden believe that small as well as large firms amendments and new rules under the that would result from disciplinary who audit public companies should be authority set forth in Schedule A and proceedings. covered under the proposed rules.188 Sections 2, 4, 5, 6, 7, 8, 10, 11, 19, and F. Duplicative, Overlapping, or We have not provided delayed 28 of the Securities Act; Sections 2, 3, Conflicting Federal Rules implementation dates just for small 9, 10, 10A, 12, 13, 14, 15, 17, 23, and firms because most firms currently are 36 of the Exchange Act; Sections 5, 10, We are not aware of any federal rules participating in a review program. We 14, and 20 of the PUHCA; Sections 304, that duplicate, overlap, or conflict with also believe that some time would be 305, 307, 308, 309, 310, 314, and 319 of the proposed rules. required for a PAB to be formed, adopt the Trust Indenture Act; Sections 6, 8, the appropriate rules and procedures, G. Significant Alternatives 20, 30, 31, and 38 of the ICA; and and hire the needed staff to begin to Sections 203, 206A and 211 of the The Regulatory Flexibility Act directs conduct reviews. This should give Advisers Act. us to consider significant alternatives smaller firms sufficient time to prepare that would accomplish the stated for those reviews. Text of Proposed Amendments objective, while minimizing any H. Solicitation of Comments List of Subjects significant adverse impact on small entities. In connection with the We encourage the submission of 17 CFR Part 210 proposed amendments, we considered comments with respect to any aspect of the following alternatives: this Initial Regulatory Flexibility Accountants, Accounting, Reporting and recordkeeping requirements, 1.The establishment of differing Analysis. Specifically, we request Securities. compliance or reporting requirements or comment regarding the number of small entities that may be affected by the timetables that take into account the 17 CFR Part 229 resources of small entities; proposed amendments, the existence or 2. The clarification, consolidation, or Reporting and recordkeeping 188 See, e.g., Mark S. Beasley, Joseph V. Carcello, requirements, Securities. simplification of compliance and and Dana R. Hermanson, Fraudulent Financial reporting requirements under the rule Reporting, 1987–1997, An Analysis of U.S. Public In accordance with the foregoing, for small entities; Companies (1999); Mark S. Beasley, Joseph V. Carcello, and Dana R. Hermanson, Fraud Related Title 17, Chapter II of the Code of 3. The use of performance rather than SEC Enforcement Actions Against Auditors: 1987– Federal Regulations is proposed to be design standards; and 1997 (2000). amended as follows:
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PART 210—FORM AND CONTENT OF public accountant or a public firm with which the certified public AND REQUIREMENTS FOR FINANCIAL accountant, or as independent with accountant or public accountant is STATEMENTS, SECURITIES ACT OF respect to an audit client, if, during the affiliated. 1933, SECURITIES EXCHANGE ACT professional engagement period, the (b) Adjunct member in good standing OF 1934, PUBLIC UTILITY HOLDING accountant is not a member accountant means an entity that is an adjunct COMPANY ACT OF 1935, INVESTMENT in good standing of a Public member of a PAB and: COMPANY ACT OF 1940, INVESTMENT Accountability Board or if the audit (1) Is not delinquent in the payment ADVISERS ACT OF 1940, AND client is not an adjunct member in good of fees assessed by such PAB; ENERGY POLICY AND standing of the same Public (2) Is not delinquent in the production CONSERVATION ACT OF 1975 Accountability Board, as those terms are of documents of the adjunct member or defined in § 210.13. of the adjunct member’s management 1. The authority citation for part 210 * * * * * employees, requested by such PAB and continues to read as follows: 4. Section 210 is amended by adding relevant to a review or proceeding by Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, an undesignated center heading and such PAB as described in §§ 210.13– 77z–2, 77z–3, 77aa(25), 77aa(26), 78c, 78j–1, §§ 210.13–01 through 210.13–07 to read 04(f) through (g); 78l, 78m, 78n, 78o(d), 78q, 78u–5, 78w(a), as follows: (3) Is not delinquent in providing 78ll, 78mm, 79e(b), 79j(a), 79n, 79t(a), 80a– testimony of the adjunct member or of 8, 80a–20, 80a–29, 80a–30, 80a–37(a), 80b–3, Article 13—Public Accountability the adjunct member’s management 80b–11, unless otherwise noted. Boards employees, requested by such PAB and * * * * * Sec. relevant to a review or proceeding by 2. Section 210.1–02 is amended by: 210.13–01 Financial statements and such PAB as described in §§ 210.13– a. Removing the authority citation attestation reports. 04(f) through (g); and following § 210.1–02; 210.13–02 Definitions. (4) Is not delinquent in using its best b. Redesignating paragraph (d) as 210.13–03 Commission recognition of efforts to cause its non-management paragraph (d)(1); Public Accountability Boards. employees and agents to provide to such c. Removing the period at the end of 210.13–04 Conditions of Commission PAB any documents or testimony newly redesignated paragraph (d)(1) and recognition of Public Accountability Boards. requested by such PAB and relevant to in its place adding a colon; and 210.13–05 Confidentiality and immunity. a review or proceeding by such PAB as d. Adding paragraphs (d)(2) and 210.13–06 Exemptions. described in §§ 210.13–04(f) through (g). (d)(3). 210.13–07 Foreign accountants. (c) A member or adjunct member of a The revision and additions read as PAB is delinquent when a PAB has follows: Article 13—Public Accountability provided public notice, in accordance Boards with PAB rules consistent with § 210.1–02 Definition of terms used in § 210.13–04(d)(11), that: Regulation S–X (17 CFR part 210). § 210.13–01 Financial statements and attestation reports. (1) With respect to payment of fees * * * * * (a) Audited or reviewed financial assessed by a PAB, the member or (d)(1) Audit (or examination). *** adjunct member has failed to pay the (2) Review. The term review, when statements or attestation reports contained in or accompanying reports or fees; or used in regard to financial statements, (2) With respect to producing means a review of the financial registration statements filed with the Commission must be audited or documents or providing testimony statements by an independent requested by a PAB and relevant to a accountant in accordance with generally reviewed, in the case of financial statements, or prepared, in the case of review or proceeding by such PAB as accepted auditing standards, as may be described in §§ 210.13–04(f) through (g): modified or supplemented by the attestation reports, by an accountant that, throughout the professional (i) In the case of a PAB request made Commission. to a member accountant, the member (3) Attest or attestation. The term engagement period: (1) Is a member accountant in good accountant has failed to produce the attest or attestation, when used in standing of a Public Accountability documents or provide the testimony regard to a report filed with the Board of which the registrant filing the after any good faith legal objection to Commission pursuant to the securities report or statement is an adjunct the request has, in accordance with such laws or the rules or regulations member in good standing; and PAB’s rules, been resolved in such thereunder, means a report by an (2) Satisfies all other requirements PAB’s favor; and independent accountant, on a written prescribed by the federal securities laws (ii) In the case of a PAB request made assertion that is the responsibility of and the rules and regulations to an adjunct member, the adjunct another party, in accordance with thereunder concerning an accountant member has failed to produce the Statements on Standards for Attestation that audits, reviews, or prepares such a documents or provide the testimony, or Engagements, as may be modified or statement or report. has failed to use its best efforts to cause supplemented by the Commission, for (b) [Reserved] any of its non-management employees purposes of issuing a report thereon. or agents to produce the documents or * * * * * § 210.13–02 Definitions. provide the testimony, after any good 3. Section 210.2–01 is amended by For the purposes of this § 210.13: faith legal objection to the request has, redesignating paragraph (a) as paragraph (a) Accountant means an independent in accordance with such PAB’s rules, (a)(1) and adding paragraph (a)(2) to public or certified public accountant been resolved in such PAB’s favor. read as follows: that audits or reviews financial (d) Foreign accountant means an statements filed with the Commission, accountant, including associated § 210.2–01 Qualifications of accountants. or that prepares attest reports filed with entities of United States domiciled * * * * * the Commission pursuant to the accountants: (a)(1) * * * securities laws or the rules or (1) Whose place of residence and (2) The Commission will not regulations thereunder. References to principal office is outside the United recognize any accountant as a certified the accountant include any accounting States and its territories; and
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(2) Who is not licensed by any state statements or accountant’s reports that (2) The entity’s charter and bylaws, or territory of the United States. accompany or are contained in filings which shall satisfy the criteria described (e) Member accountant in good made with the Commission, including in § 210.13–04(c); standing means an accountant that is a auditing, quality control and ethics (3) Representations that the entity member of a PAB and: standards issued by a PAB or by a shall undertake to: (1) Either: standard-setting body designated as (i) Improve the quality of audit, (i) Has not been barred, suspended, or authoritative by a PAB, as may be review and attest services provided by otherwise sanctioned by a PAB; or modified or supplemented by the its member accountants; (ii)(A) Has been reinstated by the PAB Commission. (ii) Improve the quality controls over after having been barred or suspended (i) SEC clients means issuers making member firms’ accounting practices, from membership with the PAB; or initial public offerings, registrants filing auditing practices, and compliance with (B) Has not been cited in a public periodic reports with the Commission auditor independence and ethics notice by the PAB as being under the Securities Exchange Act of regulations; noncompliant with the terms and 1934 (except broker-dealers registered (iii) Enhance investors’ confidence in conditions of any remedial or only because of section 15(a) of that Act the audit process; and disciplinary sanction, other than (15 U.S.C. 78o(a)) or the Investment (iv) To the extent it relies on private suspension or bar, imposed by the PAB; Company Act of 1940, and any other sector bodies to set auditing, ethics or and Commission registrant that a PAB, by quality control standards, foster (2) Is not: rule, may include within that category cooperation and coordination among (i) Delinquent in the payment of fees such private sector bodies, both assessed by the PAB of which it is a for the purposes for which the term is used in this § 210.13. domestic and international, and among member; those private sector bodies and private (ii) Delinquent in the production of § 210.13–03 Commission recognition of sector bodies that set standards for documents of the accountant, or of any Public Accountability Boards. accounting and independence; of the accountant’s employees or agents, (a) To obtain Commission recognition (4) Representations that the entity requested by such PAB and relevant to as a PAB, an entity must submit for shall put in place rules, membership a review or proceeding by such PAB as Commission review representations and requirements, systems and procedures described in §§ 210.13–04(f) through (g); materials on the basis of which the designed to further the goals described or Commission can make a determination in paragraph (c)(3) of this section and (iii) Delinquent in providing as to the entity’s commitment and sufficient to accomplish, at a minimum, testimony of the accountant, or of any capacity to carry out the functions and the objectives described in § 210.13– of the accountant’s employees or agents, to accomplish the purposes of a PAB as 04(d); and requested by such PAB and relevant to described in this § 210.13. Such (5) A representation that the entity a review or proceeding by such PAB as submission shall include, at a will study matters concerning the described in §§ 210.13–04(f) through (g). quality control systems of foreign (f) Public Accountability Board, or minimum, the representations and accountants and periodically report to PAB, means an entity organized in materials described in paragraph (c) of the Commission on whether, or under accordance with, and for the purposes this section. what conditions, the exemption described in, this § 210.13 that the (b) After receiving any submission concerning foreign accountants in Commission recognizes pursuant to pursuant to paragraph (a) of this section, § 210.13–07(a) should be withdrawn. §§ 210.13–03 and 210.13–04. the Commission shall, by order, (g) Professional engagement period determine whether the entity making § 210.13–04 Conditions of Commission means the period of the engagement to the submission shall be recognized as a recognition of Public Accountability audit or review the registrant’s financial PAB. The Commission shall, consistent Boards. statements or to prepare a report filed with the public interest and for the (a) Conditions of recognition. with the Commission. The professional protection of investors, make its Commission recognition of a PAB is engagement period begins when the determination on the basis of the conditioned upon the PAB satisfying the accountant either signs an initial entity’s commitment and capacity to criteria described in paragraphs (b) engagement letter (or other agreement to carry out the functions and accomplish through (i) of this section. review or audit a client’s financial the purposes of a PAB as described in (b) Organizational structure, board statements or to prepare an attestation this § 210.13. Before making its membership, and budget. A PAB shall: report to be filed with the Commission) determination, the Commission may ask (1) Have a fixed number of board or begins audit, review, or attest the entity to supplement its submission members: procedures, whichever is earlier. The with such materials, representations, or (i) None of whom may be, or have professional engagement period ends written answers to questions as the been at any time in the two-year period when the registrant or the accountant Commission determines are necessary immediately preceding his or her PAB notifies the Commission that the for the Commission to make an term, an employee of any accountants’ registrant is no longer the accountant’s appropriate determination in the public professional organization; audit client. interest and for the protection of (ii) No more than one-third of whom, (h) Professional standards means investors. and in any event no more than three of generally accepted accounting (c) Any submission pursuant to whom, may: principles, generally accepted auditing paragraph (a) of this section must (A) Be, or have been at any time in the standards, generally accepted standards include: ten-year period immediately preceding for attestation engagements, the (1) The entity’s organizational his or her PAB term, an accountant or Commission’s auditor independence structure, proposed board members and a partner, principal, shareholder, or regulations, the standards of the terms of board membership, and managerial employee of an accounting Independence Standards Board, and any proposed budget, sufficient to determine firm; or other standards related to the audit, that the entity will satisfy the (B) Be a retired partner, principal, review or preparation of financial requirements set out in § 210.13–04(b); shareholder, or managerial employee of
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an accounting firm, eligible to receive (2) Require that member accountants and expenses of conducting or benefits under an accounting firm’s maintain a system of quality control for overseeing quality control reviews of partner retirement plan or a comparable the accountant’s accounting and that firm as described in paragraph (f) of plan; and auditing practice designed to meet the this section; (iii) The remainder of whom shall be requirements of quality controls set or (11) Provide fair procedures for designated as ‘‘public board members;’’ designated as authoritative by the PAB, disciplining and sanctioning (2) Have staggered terms for board but encompassing, at a minimum, the accountants and for resolving disputes members; requirements described in paragraph (e) with member accountants and adjunct (3) Have a Chairman and Vice of this section; members concerning fees, document Chairman who are selected from among (3) Require member accountants to requests and requests for testimony, the public board members, and at least comply with their own system of quality including procedures providing for one of whom shall serve on a full-time controls in a manner that provides appropriate notice to the member basis; and reasonable assurance of conforming accountant or adjunct member, the (4) Have the means, capacity and plan with professional standards; Commission, and the public of any to obtain the resources to employ a (4) Have a continuing program of action that could result or has resulted professional staff that includes a review of each member firm’s quality in suspension or bar of a member sufficient number of professionals with control systems concerning accounting accountant or a loss of good standing by expertise in the audit process and practices, auditing practices, and a member accountant or adjunct quality control reviews to structure and adherence to Commission and member; supervise the quality control reviews professional auditor independence (12) Set, or rely on designated private required under paragraph (f) of this requirements; and administer that sector bodies to set, auditing, ethical or section, to conduct the supplemental program according to the criteria quality control standards for its reviews and disciplinary proceedings described in paragraph (f) of this members and, to the extent it relies on described in paragraph (g) of this section; private sector bodies to set such section, and to engage consultants and (5) Direct member firms to make and standards, oversee such bodies and other representatives and advisers keep for specified periods of time request that such matters as the PAB necessary to carry out the purposes of records that: deems appropriate be added to the this § 210.13. (i) Are required by professional standard-setting agendas of such private (c) Charter and bylaws. A PAB’s standards in connection with each sector bodies, and notify the charter and bylaws shall: audit, review, or attest of a registrant’s Commission of each such request; (1) Provide that the entity shall be a financial statements or reports; or (13) Request that matters be added to not for profit entity; (ii) Otherwise document the the agenda of private sector bodies that (2) Include quorum provisions that procedures performed and the set accounting or independence insure that the public board members resolution of material issues during each standards, and notify the Commission of will have the ability to control the audit or review engagement; each such request; outcome of any matter submitted to a (6) Conduct supplemental reviews (14) Facilitate and participate in vote of the board; and disciplinary proceedings, in periodic meetings of representatives of (3) Provide that the entity shall be accordance with the criteria described the private sector bodies that set subject to and shall act in accordance in paragraph (g) of this section; with Commission oversight as described (7) Provide procedures for requesting accounting, auditing, quality control, in paragraph (i) of this section; and and obtaining documents and testimony ethics and independence standards, (4) Provide that, immediately upon relevant to a review or proceeding by representatives of the Commission, and the effective date of any Commission such PAB as described in §§ 210.13– such other persons as the PAB deems rule abrogating, adding to, or deleting 04(f) through (g); appropriate, for the purpose of from the entity’s rules, the entity’s rules (8) Adopt appropriate policies to furthering the coordination and shall be deemed, without further action, address any conflicts or potential cooperation among such bodies; to be amended as provided by such conflicts of interest that may arise (15) Provide that the PAB’s process Commission rule. involving the PAB’s board members, for amending governing documents, (d) Rules, membership requirements, employees, contractors, and rules, membership requirements and systems, and procedures. A PAB shall professional representatives; procedures shall include an open and have in place rules, membership (9) Collect from each registrant that is deliberative rulemaking process with requirements, systems, and procedures an adjunct member of the PAB, and open meetings, the publication for designed to further the goals described from each member accounting firm, public comment of draft rules, in § 210.13–03(c)(3), and sufficient to reasonable fees and charges, which fees requirements and procedures and accomplish, at a minimum, the may be assessed by the PAB according substantive consideration of those following: to schedules specifying different fees for comments; (1) Provide for membership different classes of registrants and (16) Provide for extending full faith enrollment procedures that: accounting firms, sufficient: and credit to the sanctions and good (i) Minimize the administrative (i) To fund the operation and standing requirements of any other PAB, burden on individual accountants by administration of the PAB; and such that an accountant sanctioned by, maximizing the extent to which the (ii) To fund the operation and or an accountant or registrant in enrollment requirements, and any administration of an accounting violation of the good standing periodic updating requirements, may be standards-setting body endorsed by the requirements of, one PAB may not satisfied by an accounting firm on Commission as the primary source for evade any sanction, inquiry, or failure of behalf of its individual accountants; and generally accepted accounting good standing by switching its (ii) Require members and adjunct principles; membership to a different PAB; members to agree to be bound by the (10) Collect from each member (17) Provide or require training for PAB’s rules and membership accounting firm reasonable fees and accountants in matters related to requirements; charges sufficient to recover the costs accounting, auditing, attestation,
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assurance, ethics, independence, and accountant’s independence with the (ii) Review of that accountant’s work quality controls; and audit committee (or board of directors); on engagements for that client to (18) Perform such other duties or (5) When the member firm has been determine whether changes in the audit functions as shall be provided in any the auditor of the financial statements of plan or audit team are necessary and to rule or order that the Commission may a Commission registrant and has assure adherence to the Commission’s adopt or issue in furtherance of the resigned, declined to stand for auditor independence rules. public interest or for the protection of reelection, or been dismissed, promptly (f) Quality control review program. A investors and to carry out the purposes reporting in writing to the registrant, PAB shall administer and conduct a of this § 210.13. with a simultaneous copy to the continuing program of quality control (e) Quality control requirements. A Commission’s Office of the Chief reviews and inspections of each member PAB shall require that each of its Accountant, the fact that the client- firm to assess compliance by such firm, member accountants maintain a system auditor relationship has ceased; and by individual accountants of quality control for the accountant’s (6) For member firms that are associated with such firm, with the accounting and auditing practice associated with international firms or rules and membership requirements designed to meet the requirements of international associations of firms: adopted by the PAB, and professional quality controls set or designated as (i) Seeking the adoption of policies standards, and shall administer such authoritative by the PAB, including and procedures by the international program according to the following quality controls concerning organization or individual foreign criteria: independence, integrity, and objectivity; associated firms that are consistent with (1) A PAB shall annually conduct personnel management; acceptance and the objectives of this § 210.13; and such a quality control review of each continuance of clients and engagements; (ii) Reporting annually, or more member accounting firm that audits or engagement performance; and frequently as the PAB may prescribe, reviews the financial statements of more monitoring. The quality controls the name and country of the foreign than 70 SEC clients, or such other required by a PAB shall include, at a associated firms, if any, for which the number of SEC clients as the PAB by minimum: member firm has been advised in rule may determine, and shall conduct (1) Assigning a new audit engagement writing by its international organization such a quality control review of all other partner to be in charge of an audit or the individual foreign associated member accounting firms at least once engagement that has had another audit firms that such policies and procedures every three years; partner-in-charge for a period of seven have been established; (2) A PAB shall direct member firms consecutive years; (7) Ensuring that the member firm has to make and keep, for such periods as (2) Establishing policies and policies and procedures in place to the PAB determines necessary, records procedures for a review of the audit report to the PAB, with a copy of the that are necessary for the conduct of the report and financial statements by a report to the Commission’s Office of the quality control reviews required by this partner other than the audit partner-in- Chief Accountant, litigation or any section; charge of an audit engagement before proceeding or investigation by a (3) A PAB shall establish policies and issuance of an audit report on the government agency alleging either procedures for conducting the quality financial statements and before the deficiencies in the conduct of an audit control reviews, establish procedures for reissuance of such an audit report where or review of financial statements filed reporting of the results of the quality performance of subsequent events with the Commission by a present or control reviews, and maintain public procedures is required by professional former audit client, or any other files for each member accounting firm standards, or alternative procedures that violation of the securities laws, within containing recent quality control review a PAB authorizes where this 30 days of service of the first pleading reports on the firm and the firm’s requirement cannot be met because of in the matter on the accountant or on response to each report; the size of the member firm; any partner or employee of a member (4) A PAB shall provide for (3) Ensuring policies and procedures accounting firm; are in place to comply with applicable (8) Ensuring that the member firm monitoring of the quality control auditor independence requirements and maintains a central office function that reviews to ensure that they are to refrain from performing consulting develops expertise in technical conducted in a fair and impartial services that are inconsistent with accounting and financial reporting manner and for evaluating each quality § 210.2–01, and to refrain from matters, and has in place the following control review and report to gain conducting public opinion polls or policies and procedures, or alternative assurance that appropriate procedures merger and acquisition assistance for a procedures that a PAB authorizes where are recommended and being finder’s fee; these requirements cannot be met implemented to correct noted (4) At least annually, disclosing to the because of the size of the member firm: deficiencies, if any, in a timely and audit committee of each audit client that (i) Polices and procedures requiring, effective manner; is a Commission registrant (or the board as appropriate, consultations with that (5) A PAB or its staff shall plan and of directors if there is no audit office by engagement partners and direct all such quality control reviews, committee), in writing, all relationships others within the member firm; and make all key decisions related to such between the accountant and its related (ii) Policies and procedures for the quality control reviews, and perform all entities that in the accountant’s resolution of differences of opinion tasks necessary to conduct such quality professional judgment may reasonably between that central office and control reviews, except that: be thought to bear on auditor engagement partners; and (i) A PAB may engage individual independence; confirming in that letter (9) Ensuring that the member firm has accountants from a firm or firms not that, in the accountant’s professional policies and procedures that require: associated with the firm being reviewed judgment, it is independent of the (i) Prompt notification to the firm to assist in the conduct of such quality registrant within the meaning of the when an individual accountant who is control reviews, provided that such securities laws, the rules and a partner or employee of the firm begins accountants perform only assigned regulations thereunder, and professional discussions with an audit client functions and are under the supervision standards; and discussing the respecting possible employment; and of the PAB or its staff; and
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(ii) Quality control reviews of member (2) If a PAB, at any time, becomes (i) The name of the accountant against accounting firms that audit or review aware of information indicating that a whom the sanction is imposed; the financial statements of 70 or fewer violation of the securities laws has or is (ii) A description of the acts or SEC clients, or such other number of likely to have occurred, then the PAB practices, or omissions to act, upon SEC clients as the PAB by rule may promptly shall notify the Commission of which the sanction is based; determine, may be conducted pursuant that information. A PAB may initiate a (iii) The nature of the sanction; and to quality control review programs disciplinary proceeding regarding that (iv) Such other information respecting approved by the PAB, provided any information only after notifying and the circumstances of the disciplinary such quality control review program consulting with the Commission; action as the PAB deems appropriate; follows the PAB’s policies and (3) A PAB shall establish fair (8) In the event that a PAB is unable procedures and the PAB administers the procedures for supplemental reviews to conduct or complete a proceeding program and performs the functions and for disciplinary proceedings. In any under this section because of the refusal described in paragraphs (f)(2) through disciplinary proceeding, a PAB shall of any person to testify, produce (f)(4) of this section; bring specific charges, notify such firm documents, or otherwise cooperate with (6) In conducting such quality control or person of those charges, give such the PAB, the PAB shall report such reviews, a PAB or, in the case of a firm or person an opportunity to defend refusal to the Commission. If the quality control review program, the against those charges, and keep a record. uncooperative party is a registrant, the reviewer, shall review, among such Disciplinary proceedings shall be public PAB shall also report such refusal to any other things as the PAB may determine, unless otherwise ordered by the PAB market or exchange where the selected audit and review engagements with the prior approval of the registrant’s securities are traded or performed at various offices and by Commission; listed. A PAB may refer any other matter various persons associated with the firm (4) For purposes of supplemental to the Commission, as the PAB deems under review, and, in connection reviews or disciplinary proceedings, a appropriate; and therewith, evaluate whether such firm’s PAB may request that any person (9) PAB rules shall require member quality control system is appropriate, provide testimony or documents accounting firms: whether its policies and procedures are relevant to the review or proceeding; (i) To notify the PAB in the event that adequately documented and (5) PAB board members who are not the member firm employs or becomes communicated to its personnel, and public board members may be consulted associated with an individual whether the firm is in compliance with in connection with supplemental accountant during any period in which such policies and procedures sufficient reviews and disciplinary proceedings that individual accountant is subject to to provide reasonable assurance of but shall not have a vote in the PAB’s a sanction, order or ruling issued by a conformity with Commission rules, PAB determination whether to institute a PAB; and (ii) To undertake procedures to ensure membership requirements and rules, disciplinary proceeding, what findings that the individual accountant does not and professional standards; and to make in a disciplinary proceeding, or violate the terms of the sanction, order (7) In connection with each quality what sanctions to impose; control review, a PAB or, in the case of or ruling. (6) If, as the result of a disciplinary (h) Public reporting. A PAB shall a quality control review program, the proceeding, a PAB finds that an report to the Commission and to the reviewer, shall prepare a report of its accountant has engaged in any act or public at least annually, and where findings and comments, and such practice, or omitted to act, in violation practicable on a current basis, the report, accompanied by any letter of of the rules or membership following matters: response from the member firm, shall be requirements adopted by the PAB or (1) A detailed description of the made publicly available as specified in professional standards, then the PAB quality control review and disciplinary paragraph (f)(3) of this section. may impose any appropriate activities of the PAB; (g) Supplemental reviews and disciplinary or remedial sanctions (2) The annual audited financial disciplinary proceedings. (1) A PAB including revocation or suspension of statements of the PAB; shall have rules, membership membership, or expulsion from, the (3) An explanation of the fees and requirements, systems, and procedures, PAB; limitations on activities, functions, charges imposed by the PAB on incorporating the criteria described in and operations, including requiring a members and adjunct members; paragraphs (g)(2) through (g)(9) of this member firm to resign a specific audit, (4) A summary of the issues addressed section, pursuant to which a PAB may: review or attestation engagement; in the PAB-sponsored periodic meetings (i) Institute public proceedings suspending or barring an accountant with, or in connection with its oversight (hereinafter ‘‘disciplinary proceedings’’) from participating in any way in any of, private sector standard-setting to determine whether an accountant has audit, review or attest engagement for bodies; engaged in any act or practice, or any Commission registrant; fine; (5) A list of all matters the PAB omitted to act, in violation of the rules censure; or any other appropriate referred to each private sector standard- or membership requirements adopted by sanction; setting body that were not placed on the the PAB or professional standards, and (7) Whenever a PAB imposes a agenda of that body within 90 days of to impose remedial or disciplinary disciplinary sanction against an the PAB’s referral; and sanctions for any such act, practice, or accountant, the PAB shall report such (6) Such other matters as the PAB omission; and sanction in writing to the accountant deems appropriate or the Commission, (ii) On the basis of information against whom the sanction is imposed, by order, requires. suggesting the possibility of any such to the Commission, to the appropriate (i) Commission oversight. A PAB shall act, practice, or omission, engage in a State or foreign financial regulatory consent to, and act in compliance with, nonpublic practice of requesting and authority or authorities with which such Commission oversight as follows: reviewing information (hereinafter firm or such person is licensed, (1) The Commission, by rule, may ‘‘supplemental reviews’’) to determine registered, or certified to practice public abrogate, add to, and delete from the whether to institute disciplinary accounting, and to the public. Each PAB rules of a PAB as the Commission proceedings; report shall include: deems necessary or appropriate to
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ensure the fair and efficient for hearing (which hearing may consist (iv) If the Commission, having due administration of the PAB, to conform solely of consideration of the record regard for the public interest and the its rules to requirements of the before the PAB and opportunity for the protection of investors, finds after a securities laws or the rules and presentation of supporting reasons to proceeding in accordance with this regulations thereunder, or otherwise in affirm, modify, or set aside the paragraph (i)(3) that a sanction imposed, furtherance of the purposes of the sanction): or a delinquency determination made, securities laws. The Commission shall (A) If the Commission finds that the by the PAB imposes any burden on notify the PAB of any such action prior member accountant has engaged in such competition not necessary or to publication of the notice of proposed acts or practices, or has omitted such appropriate in furtherance of the rulemaking in the Federal Register; acts, as the PAB has found the purposes of the securities laws or is (2) The Commission staff periodically accountant to have engaged in or excessive or oppressive, the may inspect and monitor the operations, omitted, that such acts or practices or Commission may cancel such records, and results of a PAB to ensure omissions to act are in violation of such delinquency determination or may the PAB is operating in the public provisions of the securities laws, the cancel, reduce, or require the remission interest and for the protection of rules or regulations thereunder, the of such sanction; investors and fulfilling the purposes of rules or membership requirements (4) The Commission, by order, may the Commission in adopting this adopted by the PAB, or professional remove from office or censure any board § 210.13. A PAB shall make and keep standards as have been specified in the member of a PAB if the Commission records, reports and summaries of its determination of the PAB, and that such finds, on the record after notice and activities that the Commission staff provisions are, and were applied in a opportunity for hearing, that such deems necessary for its inspection of the manner, consistent with the purposes of member has willfully violated any PAB’s quality control review activities, this § 210.13, then the Commission, by provision of the securities laws, the supplemental reviews, and disciplinary order, shall so declare and, as rules or regulations thereunder, or the proceedings. A PAB shall adopt a appropriate, affirm the sanction rules of the PAB, willfully abused his or policy, which shall be subject to imposed by the PAB, modify the her authority, or without reasonable Commission approval by order, sanction in accordance with paragraph justification or excuse has failed to identifying the categories of records, (i)(3)(iv) of this section, or, if enforce compliance with any such reports, and summaries that it shall appropriate, remand to the PAB for provision or any professional standard retain. A PAB shall adopt a policy that further proceedings; or by any accountant that is a member of provides for the retention of such (B) If the Commission does not make the PAB. materials until such time as the the finding set forth in paragraph (5) If the Commission finds that a PAB Commission has either inspected the (i)(3)(ii)(A) of this section, it shall, by has failed or is failing to comply with materials or informed the PAB that it order, set aside the sanction imposed by any of the conditions of recognition need no longer retain the documents; the PAB and, if appropriate, remand to described in this § 210.13–04, the (3) The PAB shall, in accordance with the PAB for further proceedings; or Commission may, by order, withdraw paragraphs (g)(7) and (d)(11) of this (iii) In any Commission proceeding to recognition of such PAB and direct that section, promptly notify the review a PAB determination that a any fees described in paragraphs (d)(9) Commission whenever it imposes any member accountant or adjunct member and (d)(10) of this section and collected final disciplinary sanction on any is delinquent, after notice and by, or due and owing to, such PAB shall member accountant or determines any opportunity for hearing (which hearing be held in escrow pending: member accountant or adjunct member may consist solely of consideration of (i) Resolution or correction of such to be delinquent. The Commission may the record before the PAB and PAB’s failings, satisfactory to the review that sanction as follows: opportunity for the presentation of Commission; or (i) Any final PAB disciplinary action supporting reasons to affirm, modify, or (ii) A Commission order that such or delinquency determination shall be set aside the determination): funds be paid to one or more other PABs subject to review by the Commission on (A) If the Commission finds that the that enroll members from the PAB that its own motion at any time, or upon member accountant or adjunct member the Commission has ceased to application by any person aggrieved has failed to comply with PAB rules or recognize. thereby filed within thirty days after the membership requirements concerning date the notice required by paragraph fee payments, requests for documents, § 210.13–05 Confidentiality and immunity. (g)(7) or paragraph (d)(11) of this section or requests for testimony, that the PAB’s (a) Because a PAB’s nonpublic was filed with the Commission and determination is in accordance with the proceedings and deliberations are received by such aggrieved person, or rules of the PAB, and that such rules subject to Commission oversight, and within such longer period as the are, and were applied in a manner, are governed by this § 210.13 in Commission, by order, allows. consistent with the purposes of this furtherance of the purposes of the Application to the Commission for § 210.13, the Commission, by order, securities laws, including the review, or the institution of review by shall so declare and, as appropriate, enforcement of certain standards, the the Commission on its own motion, affirm the delinquency determination, Commission finds that, except to the shall not operate as a stay of such action cancel the delinquency determination in extent that such information is unless the Commission otherwise accordance with paragraph (i)(3)(iv) of requested by the Commission, any other orders, summarily or after notice and this section, or, if appropriate, remand Federal department or agency, the opportunity for hearing on the question to the PAB for further proceedings; or appropriate State licensing authority or of a stay (which hearing may consist (B) If the Commission does not make authorities, State criminal law solely of the submission of affidavits or the findings set forth in paragraph enforcement authorities, and foreign presentation of oral arguments); (i)(3)(iii)(A) of this section, the governmental authorities or foreign (ii) In any Commission proceeding to Commission shall, by order, set aside financial regulatory authorities, it is in review a final disciplinary sanction the delinquency determination and, if the public interest for a PAB: imposed by a PAB on a member appropriate, remand to the PAB for (1) To be able to maintain the accountant, after notice and opportunity further proceedings; or confidentiality of reports, memoranda
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and other information prepared by it, compliance with §§ 210.13 and 210.2– the SECPS has imposed membership and of its deliberations; and 01(a)(2). requirements on firms and required member (2) To claim confidentiality protection (b) In reviewing the quality controls of firms to participate in two programs intended for its nonpublic reports, memoranda, any member firm that has associated to promote effective quality control systems. The first is a peer review program, which in other information prepared by it, and of entities that are foreign accountants, the recent years has involved firm on firm its deliberations, to the full extent PAB or reviewer should review the reviews.190 The SECPS’s Peer Review allowed by law. procedures performed by the member Committee administers the peer review (b) Because a PAB’s activities are firm related to documents filed with the program. The second program reviews subject to Commission oversight, and Commission that contain the reports or allegations of audit failures involving are governed by this § 210.13 in opinions of those foreign accountants. Commission registrants that are contained in furtherance of the purposes of the litigation filed against member firms. The securities laws, the Commission finds PART 229—STANDARD QCIC conducts the second program. INSTRUCTIONS FOR FILING FORMS The September 1977 resolution of the that it is in the public interest for the AICPA Council that created the SECPS also PAB and its board members, employees, UNDER SECURITIES ACT OF 1933, provided for the establishment of the POB.191 contractors, and professional SECURITIES EXCHANGE ACT OF 1934 This resolution indicated that the POB, representatives: AND ENERGY POLICY AND among other things, would ‘‘(a) Monitor and (1) To have immunity from private CONSERVATION ACT OF 1975— evaluate [the regulatory and sanction] civil liability for any action or failure to REGULATION S–K activities of the Peer Review and [SECPS] Executive Committees to assure their act in connection with the PAB’s 5. The general authority citation for responsibilities; and effectiveness, (b) Determine that the Peer part 229 continues to read as follows: Review Committee is ascertaining that firms (2) To claim immunity from private are taking appropriate action as a result of Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, civil liability, for any action or failure to peer reviews, (c) Conduct continuing 77k, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), act in connection with the PAB’s oversight of all other activities of the 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, responsibilities, to the full extent Section.’’192 77nnn, 77sss, 78c, 78i, 78l, 78m, 78n, 78o, allowed by law. Operating under this resolution and related 78u–5, 78w, 78ll(d), 78mm, 79e, 79n, 79t, provisions, the POB oversaw the SECPS peer § 210.13–06 Exemptions. 80a–8, 80a–29, 80a–30, 80a–31(c), 80a–37, review and quality control inquiry programs 80a–38(a), and 80b–11, unless otherwise and gradually expanded its scope to monitor (a) The Commission, by rule or order, noted. upon its own motion or upon and comment on other matters that affect * * * * * public confidence in the integrity of the audit application, may conditionally or 6. Section 229.401 is revised by process.193 When the Commission was unconditionally exempt in whole or in adding paragraph (f)(7) before the Note part any accountant or any Commission to Paragraph (f) of Item 401 to read as Private Companies Practice Section. The AICPA registrant, or any class of accountants or follows: recently renamed its efforts for firms that provide Commission registrants, from any or all services to private companies as ‘‘Partnering for of the provisions of §§ 210.13 and § 229.401 (Item 401) Directors, executive CPA Practice Success.’’ 190 officers, promoters and control persons. Although it is our understanding that ‘‘firm on 210.2–01(a)(2), if the Commission finds firm’’ reviews are most prevalent, an SECPS that such exemption is consistent with * * * * * member firm may choose a review team formed by the public interest and the protection of (f) * * * a state CPA society (a committee-appointed review investors. (7) Such person was sanctioned by a team, known as a CART review), or by an association of CPA firms authorized by the AICPA (b) Accountants that do not audit or Public Accountability Board under Peer Review Committee to assist its members by review financial statements or prepare § 210.13 of this Chapter for violations of forming review teams to carry out peer reviews (an attestation reports filed with the professional standards or the rules or association review). See AICPA, Standards for Commission on a recurring basis and membership requirements of that Public Performing and Reporting on Peer Reviews at ¶ 15. whose audit reports are filed with the 191 AICPA, Official Releases: Organizational Accountability Board and that sanction Structure and Functions of the SEC Practice Section Commission only in accordance with has not been subsequently reversed, of the AICPA Division for CPA Firms, J. Acct., Nov. § 210.3–05 are exempt from the suspended or vacated. 1997, at 113, 114. requirements of this §§ 210.13 and * * * * * 192 See Division for CPA Firms SEC Practice 210.2–01(a)(2). Section, SECPS Reference Manual, at SECPS (c) The Commission, by rule or order, Dated: June 26, 2002. § 100.23. By the Commission. 193 For example, in 1993 the POB issued a consistent with the public interest, the document entitled In the Public Interest: Issues protection of investors, and the other Margaret H. McFarland, Confronting the Accounting Profession, which purposes of the securities laws, may Deputy Secretary. contained recommendations designed to enhance relieve a PAB of its responsibility to the reliability of financial statements and improve Note: Appendices A and B to the preamble the performance of auditors. In 1994, in response enforce compliance with any specified will not appear in the Code of Federal to issues raised by then-SEC Chief Accountant provision in § 210.13, the rules or Regulations. Walter Schuetze, the POB sponsored a committee membership requirements adopted by a that published Strengthening the Professionalism of PAB, or professional standards, with Appendix A the Independent Auditor, which contained further respect to any accountant, Commission recommendations in the areas of auditor Brief History of the Self-Regulatory System independence, litigation reform, and the registrant, or any class of accountants or relationship of the accounting profession with registrants. The self-regulatory system established in various standard-setting and regulatory bodies, September 1977 included the formation including the Commission. More recently, in § 210.13–07 Foreign accountants. within the AICPA of a Division for CPA response to the Commission’s concerns about the Firms and then the organization of that impact of changes in audit procedures on the (a) Any foreign accountant that audits efficacy of the audit process, the POB formed the or reviews financial statements filed Division into two sections, one for those firms that audit financial statements filed Panel on Audit Effectiveness (‘‘Panel’’). The Panel with the Commission, or prepares with the Commission (the SECPS) and one used a ‘‘Quasi Peer Review’’ (‘‘QPR’’) process to reports that are filed with the 189 examine the audit processes of large SECPS member for those that do not. Since its formation, firms. The Panel on Audit Effectiveness, Report and Commission, and any foreign issuer that Recommendations, at 211–17 (Aug. 31, 2000). Each engages a foreign accountant for such 189 The section for those firms that do not audit QPR was conducted under the close supervision of services, shall be exempt from Commission registrants was formerly called the the Panel staff, including at least one senior
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concerned about the status of accounting Practically since the Commission’s inception, the staff refers them to the FASB for firms’ quality controls over auditor however, we have looked to the accounting guidance. It is our expectation that, in independence, it asked the POB to oversee a profession for leadership in establishing and response to such a referral, the FASB will review of the firms’ systems and procedures improving the accounting principles used to add an item to its agenda to address the issue in this area.194 During discussions about the prepare financial statements filed with the and will ensure that the item receives the POB’s reviews of the firms’ systems of quality Commission and relied on by investors.198 controls over auditor independence, the These principles come from a variety of priority requested by the Commission or by SECPS took the unprecedented step of sources, and together form generally accepted our staff. threatening to halt the funding for the POB’s accounting principles, or GAAP.199 As the FASB conducts its deliberations, reviews.195 The SECPS indicated that this Commission rules state that financial our staff monitors each project to ensure that step was part of its obligations to its member statements that do not follow GAAP will be the process is fair and deliberative, and that firms to exercise fiscal responsibility, but it presumed to be misleading, unless the any final standard improves financial was perceived widely as an indication of the Commission has directed otherwise.200 reporting for investors. The Commission POB’s lack of financial independence from In Accounting Series Release No. 150, staff, however, does not dictate final the AICPA.196 which was published on December 20, 1973, standards, but rather allows the private- the Commission endorsed the establishment Appendix B of the FASB and stated that standards sector standard setting process to work. Once a FASB project is completed, our staff The Commission’s Endorsement and promulgated by the FASB would be Oversight of FASB considered to have ‘‘substantial authoritative evaluates the final product taken as a whole. support’’ and that those contrary to FASB We would expect to take action with respect We have ample authority to set accounting pronouncements would be deemed to have to a FASB standard if we determine that the requirements for Commission registrants.197 no such support. The Commission, in making standard does not adequately protect the that decision, noted that the commitment of interests of investors. member of the Panel staff, and all of the reviewers resources to the FASB by the private sector As companies adopt new FASB standards, had relevant industry experience. Id. at 213. The was ‘‘impressive’’ and evidenced an Panel also reviewed the relevant issues and held our staff monitors implementation,202 intention on the part of the private sector to public hearings. In August 2000, the Panel issued addresses additional questions, and refers a report containing recommendations for those support the FASB in accomplishing its task involved in the audit process and for those who of taking ‘‘prompt and reasonable actions unique issues to the FASB’s interpretative oversee that process. The Panel on Audit flowing from research and consideration of body, the Emerging Issues Task Force Effectiveness, Report and Recommendations (Aug. varying viewpoints.’’ 201 In that release, the (‘‘EITF’’). Through this cycle, many EITF 31, 2000). Commission acknowledged and endorsed the issues have been addressed at the request of 194 The program is in progress and will be FASB as the primary source for GAAP. the Commission staff because of completed by the POB staff under the review of an The FASB operates under the implementation problems the staff observed independent party, Donald Kirk. See SEC Press Commission’s oversight. That oversight Release No. 2002–40 (Mar. 19, 2002). in practice. reflects the fact that our staff, by virtue of its 195 Letter from David Brumbeloe, Director, SECPS, to Jerry D. Sullivan, Executive Director, day-to-day activities, often is among the first [FR Doc. 02–16539 Filed 7–3–02; 8:45 am] POB (May 3, 2000), which states, in part: ‘‘The SEC to identify emerging issues and areas of BILLING CODE 8010–01–P Practice Section (the ‘‘Section’’) will not approve accounting that need attention. As the staff nor authorize payment for invoices submitted by identifies issues, such as revenue recognition the Public Oversight Board (‘‘POB’’) or its and accounting for business combinations, representatives that contain charges for the special
reviews until such time that the Section and POB 198 determine that such reviews will take place, and See Accounting Series Release Nos. 4 (Apr. 25, accordingly, that the work plan is agreed to by all 1938) and 150 (Dec. 20, 1973). 202 In light of the SEC’s unique role, it is critical 199 parties.’’ For a discussion of the various sources of that the SEC work closely with the FASB. However, GAAP and the hierarchy used to determine the 196 See, e.g., Accounting and Investor Protection no matter how good accounting standards are, there most authoritative among conflicting principles or Issues Raised by Enron and Other Public will be instances where answers will not be clear practices, see SAS No. 69 (for periods ending after Companies: Hearing Before the Senate Comm. on and additional guidance will be needed. In these Banking, Housing, and Urban Affairs (Mar. 19, Mar. 15, 1992), AU § 411. instances, we have encouraged registrants and their 2002) (statement of Charles A. Bowsher, Chairman, 200 Rule 4–01(a)(1) of Regulation S–X, 17 CFR Public Oversight Board, Former Comptroller 210.4–01(a)(1). auditors to discuss the issue with the staff prior to General of the United States). 201 Accounting Series Release No. 150 (Dec. 20, the filing of the registrant’s financial statements. 197 See, e.g., 15 U.S.C. 77s(a), 78c(b), and 1973), which is reprinted in the Commission’s See Preliminary Note to § 210.2–01; Staff 78m(b)(1). Codification of Financial Reporting Policies, § 101. Accounting Bulletin No. 99, General Comments (Aug. 13, 1999).
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Part IV
Department of Health and Human Services Announcement of Anticipated Availability of Funds for Family Planning Services Grants; Notice
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DEPARTMENT OF HEALTH AND 767–3088; Region VII (Iowa, Kansas, services, and services for adolescents).’’ HUMAN SERVICES Missouri, Nebraska)—Elizabeth Curtis, The broad range of services should 816–426–2924; Region VIII (Colorado, include abstinence education. Section Announcement of Anticipated Montana, North Dakota, South Dakota, 1001 of the statute also requires that, to Availability of Funds for Family Utah, Wyoming)— Jill Leslie, 303–844– the extent practicable, Title X service Planning Services Grants 7856 or Laura Grogan, 303–844–7849; providers shall encourage family Region IX (Arizona, California, Hawaii, participation in family planning AGENCY: Department of Health and Nevada, Commonwealth of the Northern services projects. Section 1008 of the Human Services, Office of the Secretary, Mariana Islands, American Samoa, Act, as amended, stipulates that ‘‘none Office of Public Health and Science, Guam, Republic of Palau, Federal States of the funds appropriated under this Office of Population Affairs. of Micronesia, Republic of the Marshall title shall be used in programs where ACTION: Notice. Islands)—Nadine Simons, 415–437– abortion is a method of family 7984; Region X (Alaska, Idaho, Oregon, planning.’’ AUTHORITY: Section 1001 of the Public Washington)—Janet Wildeboor, 206– Requirements regarding the provision Health Service (PHS) Act. 615–2776. of family planning services under Title SUMMARY : The Office of Population SUPPLEMENTARY INFORMATION: X can be found in the Title X statute, the Affairs (OPA) announces the anticipated implementing regulations which govern availability of funds for Fiscal Year (FY) Definitions project grants for family planning 2003 family planning services grants For the purposes of this services (42 CFR part 59, subpart A), under the authority of Title X of the announcement, the following and the ‘‘Program Guidelines for Project Public Health Service Act and solicits definitions apply: Grants for Family Planning Services,’’ applications for competing grant awards Application—a request for financial published in January 2001. Copies of the to serve the areas and/or populations set support of a project submitted to OPA Title X statute, regulations, and Program out below. Only applications which on specified forms and in accordance Guidelines may be obtained by propose to serve the populations and/or with instructions provided. contacting the Office of Grants areas listed in Table I will be accepted Eligible Applicants—any public or Management for Family Planning for review and possible funding. nonprofit private entity located in a Services (at the address above), or DATES: Application and funding dates State (which includes one of the 50 downloaded from the Office of vary. See SUPPLEMENTARY INFORMATION United States, the District of Columbia, Population Affairs web site at http:// below. Commonwealth of Puerto Rico, U.S. opa.osophs.dhhs.gov/grants. All Title X Virgin Islands, Commonwealth of the requirements—including those derived ADDRESSES: Applications for grants in Northern Mariana Islands, American from the statute, the regulations, and the DHHS Regions I–X should be sent to: Samoa, Guam, Republic of Palau, Program Guidelines—apply to all Office of Grants Management for Family Federated States of Micronesia, and the activities funded under this Planning Services, 1301 Young Street, Republic of the Marshall Islands) is announcement. (For example, projects Suite 766, Dallas, TX 75202. eligible to apply for a Title X family must meet the regulatory requirements Application kits are also available planning grant. Faith-based set out at 42 CFR 59.5 regarding charges online at the Office of Population organizations are eligible to apply for to clients, and the funding criteria set Affairs web site at http:// these Title X family planning grants. out at 42 CFR 59.7 apply to all opa.osophs.dhhs.gov or may be Evidence-based—relevant scientific applicants under this announcement. As requested by fax at (214) 767–3425. evidence that has undergone stated in Sec. 59.7(b) ‘‘* * * No grant FOR FURTHER INFORMATION CONTACT: comprehensive review and rigorous may be made for less than 90 percent of analysis. Administrative and Budgetary the project’s costs, as so estimated, Grant—financial assistance in the Requirements unless the grant is to be made for a form of money, awarded by the Federal project that was supported, under Regions I–X: Maudeen Pickett, Office Government to an eligible recipient (a section 1001, for less than 90 percent of of Grants Management for Family grantee or recipient is the entity that its costs in fiscal year 1975. In that case, Planning Services, 214–767–3401. receives a Federal grant and assumes the the grant shall not be for less than the Program Requirements legal and financial responsibility and percentage of costs covered by the grant accountability for the awarded funds in fiscal year 1975.’’ Furthermore, Sec. Regional Program Consultants for and performance of activities approved 59.7(c) stipulates that ‘‘no grant may be Family Planning: Region I (Connecticut, for funding). made for an amount equal to 100 Maine, Massachusetts, New Hampshire, Project—those activities described in percent for the project’s estimated Rhode Island, Vermont)—Suzanne the grant application and supported costs.’’) A description of the Title X Theroux, 617–565–1063; Region II (New under the approved budget. Family Planning Program can be found Jersey, New York, Puerto Rico, Virgin Title X of the Public Health Service at OMB Catalog of Federal Domestic Islands)—Robin Lane, 212–264–3935; Act, 42 U.S.C. 300 et seq., authorizes the Assistance 93.217. Region III (Delaware, Washington, D.C., Secretary of Health and Human Services The anticipated FY 2003 Maryland, Pennsylvania, Virginia, West (HHS) to award grants for projects to appropriation for the Title X Family Virginia)—Louis Belmonte, 215–861– provide family planning services to Planning program is approximately 4641; Region IV (Kentucky, Mississippi, persons from low-income families and $265 million. Of this amount, North Carolina, Tennessee, Alabama, others. Section 1001 of the Act, as approximately $100 million will be Florida, Georgia, South Carolina)— amended, authorizes grants ‘‘to assist in made available for competing grant Cristino Rodriguez, 404–562–7900; the establishment and operation of awards. This notice announces the Region V (Illinois, Indiana, Michigan, voluntary family planning projects anticipated availability of funds for Minnesota, Ohio, Wisconsin)—Janice which shall offer a broad range of competitive family planning service Ely, 312–886–3864; Region VI acceptable and effective family planning grants in 22 states. (See Table I for (Arkansas, Louisiana, New Mexico, methods and services (including natural competing areas and approximate Oklahoma, Texas)—Evelyn Glass, 214– family planning methods, infertility amount of awards). The remaining
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funds will be used for continued contingency action taken to ensure that, grant applications are invited for the support of grants and activities which should funds become available for this following areas (please note, in order to are not competitive in FY 2003. This purpose, applications can be processed maximize access to family planning program announcement is subject to the in an orderly manner, and funds can be services, one or more grants may be appropriation of funds and is a awarded in a timely fashion. Competing awarded for each area listed):
TABLE I
Approximate Populations/areas to be served Application due Approx. grant Funding available date funding date
Region I Massachusetts-Central/Southeast ...... $1,471,813 09–01–02 01–01–03 Region II New Jersey ...... 7,974,484 09–01–02 01–01–03 Region III Delaware ...... 1,009,643 12–01–02 04–01–03 Maryland ...... 3,729,883 12–01–02 04–01–03 Pennsylvania ...... 11,951,606 03–01–03 07–01–03 Virginia ...... 4,299,203 12–01–02 04–01–03 West Virginia ...... 2,008,201 12–01–02 04–01–03 Region IV Alabama ...... 4,315,101 03–01–03 07–01–03 Florida ...... 7,652,636 03–01–03 07–01–03 Georgia ...... 7,080,259 03–01–03 07–01–03 Kentucky ...... 4,759,359 03–01–03 07–01–03 Mississippi ...... 4,508,789 03–01–03 07–01–03 North Carolina ...... 6,076,410 03–01–03 07–01–03 Region V Minnesota ...... 2,242,934 09–01–02 01–01–03 Minneapolis, Minnesota ...... 187,945 05–29–03 09–29–03 Ohio 5,202,414 12–01–02 03–01–03 Portage, Summit & Medina Counties, Ohio ...... 749,745 03–01–03 07–01–03 Region VI Louisiana ...... 3,743,201 03–01–03 07–01–03 Region VII Iowa ...... 2,206,340 03–01–03 07–01–03 951,128 05–30–03 09–30–03 Region VIII None competing in FY 2003 Region IX Arizona ...... 3,811,522 09–01–02 01–01–03 California ...... 20,123,818 09–01–02 01–01–03 Washoe County, Nevada ...... 613,415 03–01–03 07–01–03 Region X Idaho ...... 949,660 03–01–03 07–01–03 Seattle, WA ...... 163,438 05–30–03 09–30–03
Title X Program Priorities interests and that work with similar include abortion as a method of family populations; planning. The following priorities represent (3) Emphasis on clinical services for overarching goals for the Title X hard-to-reach populations, e.g., Key Issues program. The application should uninsured or under-insured women, The following key issues impact the describe how the proposed project will males in need of clinical services, current and future delivery of family address each priority: adolescents, substance abusers, migrant planning services, and should be (1) Assurance of continued high workers, and the homeless; and considered when developing the quality clinical family planning and (4) Assuring access to a broad range proposal: reproductive health services that will of family planning and reproductive (1) The U.S. Department of Health and health clinical services, including Human Services’ priorities and Healthy improve the overall health of provision of highly effective People 2010 objectives (http:// individuals; contraceptive methods; breast and www.health.gov/healthypeople); (2) Increasing access to family cervical cancer screening and (2) Medicaid waivers, managed care, planning and reproductive health prevention; STD and HIV prevention State Children’s Health Insurance services by partnering with public education, counseling, and testing; and Program (SCHIP), Temporary Assistance health providers and other community- abstinence education and counseling. to Needy Families (TANF), Title XX of based organizations that have related The broad range of services does not the Social Services Block Grant, state
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support, and private insurance coverage will not be accepted as proof of timely Grants are funded in annual increments related to family planning and mailing. All hand delivered applications (budget periods). An annual non- reproductive health services, teen must be received between the hours of competitive continuation application is pregnancy and abstinence education 8:30 a.m. and 5 p.m. on or before the required to obtain continued support. (e.g., Title XX of the PHS Act— application due date. Applications Application kits for non-competing Adolescent Family Life (AFL) Program, which do not meet the deadline will be grants will automatically be sent to the Title V of the Social Security Act— considered late and will not be accepted project director indicated on the Notice SPRANS and State Block Grants for for review. Also, applications which do of Grant Award. Funding for all Abstinence Education), and ACF Infant not meet the requirements of this approved budget periods beyond the Adoption Awareness Training Program; program announcement and/or the first year of the grant is contingent upon (3) Increased need for current and applicable regulatory requirements at 42 the availability of funds, satisfactory reliable data to use in program planning CFR part 59, subpart A, will not be progress of the project, and efficient and and monitoring program performance; accepted for review. Any application effective use of grant funds. In all cases, (4) Use of electronic technologies in which is not accepted will be returned continuation awards require a program activities and management; to the applicant. Applications will not determination by HHS that continued (5) Use of evidence-based information be accepted by fax or e-mail. The funding is in the best interest of the to support program activities; and submission deadlines will not be Federal Government. (6) Legislative mandates such as extended. counseling teens on involving families The Office of Public Health and Review Under Executive Order 12372 and avoiding coercive sexual Science (OPHS) requires all grant relationships, and program compliance recipients to provide a smoke-free Applicants under this announcement with state reporting laws regarding child workplace and to promote the non-use are subject to the review requirements of abuse, child molestation, sexual abuse, of all tobacco products. This is Executive Order 12372, as implemented rape or incest. consistent with the OPHS mission to by 45 CFR part 100, ‘‘Intergovernmental protect and advance the physical and Review of Department of Health and Application Requirements mental health of the American people. Human Services Programs and Application kits (including the Application Consideration and Activities.’’ As soon as possible, the application form, Form OPHS–1, Assessment applicant should discuss the project Revised 6/01), may be obtained by with the State Single Point of Contact contacting the Office of Grants Each regional office is responsible for (SPOC) for each State to be served. The Management for Family Planning evaluating applications and setting application kit contains the currently Services (at the address listed above), or funding levels according to criteria in 42 available listing of the SPOCs which downloaded from the Office of CFR 59.7. Applications will be have elected to be informed of the Population Affairs web site at http:// evaluated based on the following submission of applications. For those opa.osophs.dhhs.gov/grants. criteria (42 CFR 59.7(a)): (1) The degree to which the project States not listed, further inquiries Applications should be limited to 60 regarding the review process designed double-spaced pages, not including plan adequately provides for the requirements set forth in the Title X by their State should be made to the appendices. Appendices may provide Governor’s office of the pertinent State. examples of organizational capabilities regulations at 42 CFR part 59, subpart A (20 points); The SPOC should forward any or other supplemental information. comment(s) to the Office of Grants Completed applications must be (2) The extent to which family planning services are needed locally (20 Management for Family Planning submitted to the Office of Grants Services, 1301 Young Street, Ste. 766, Management for Family Planning points); (3) The number of patients, and, in Dallas, TX 75202. The SPOC has 60 Services. particular, the number of low-income days from the applicable closing date as A copy of the legislation and patients to be served (15 points); listed in Table I of this announcement regulations governing this program will (4) The adequacy of the applicant’s to submit any comments. be included as part of the application kit facilities and staff (15 points); package. Applications must address all (5) The capacity of the applicant to Notification of Grant Award applicable regulatory requirements. make rapid and effective use of the When final funding decisions have Applicants should use the legislation, Federal assistance (10 points); regulations, and information included (6) The relative availability of non- been made, each applicant will be in this announcement to guide them in Federal resources within the community notified by letter of the outcome. The developing their applications. The to be served and the degree to which official document notifying an applicant information collections (reporting those resources are committed to the that a project application has been requirements) contained in this notice project (10 points); and approved for funding is the Notice of have been approved by the Office of (7) The relative need of the applicant Grant Award. This document specifies Management and Budget and assigned (10 points). to the grantee the amount of money control number 0937–0189. In making grant award decisions, the awarded, the purposes of the grant, the Applications will be considered as Regional Health Administrator will fund length of the project period, and terms meeting the deadline if they are those projects which will, in his and conditions of the grant award. postmarked on or before the application judgement, best promote the purposes of Dated: June 7, 2002. due date (listed for all areas in Table I). section 1001 of the Act, within the Mireille B. Kanda, A legibly dated receipt from a limits of funds available for such commercial carrier or U.S. Postal projects. Acting Director, Office of Population Affairs. Service will be accepted in lieu of a Grants are generally approved for [FR Doc. 02–16784 Filed 7–3–02; 8:45 am] postmark. Private metered postmarks project periods of three to five years. BILLING CODE 4150–34–P
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Part V
Department of Energy Office of Energy Efficiency and Renewable Energy
10 CFR Part 431 Energy Efficiency Program for Certain Commercial and Industrial Equipment: Interim Determinations Concerning Petitions for Recognition as a Nationally Recognized Certification Program for Electric Motor Efficiency; Interim Final Rules
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DEPARTMENT OF ENERGY (202) 586–4617; or Electronic Mail: Building, Room 1E–190, 1000 [email protected]. Independence Avenue, SW., Office of Energy Efficiency and Francine Pinto, Esq., U.S. Department Washington, DC 20585–0101, telephone Renewable Energy of Energy, Office of General Counsel, (202) 586–3142, between the hours of 9 Mail Station GC–72, 1000 Independence a.m. and 4 p.m., Monday through 10 CFR Part 431 Avenue, SW., Washington, DC 20585– Friday, except Federal holidays. [Docket No. EE–RM–96–400] 0103; Telephone: (202) 586–7432; Additional information about CSA Telefax: (202) 586–4116; or Electronic International’s Motor Efficiency Energy Efficiency Program for Certain Mail: [email protected]. Verification Service Program (MEVS Commercial and Industrial Equipment: SUPPLEMENTARY INFORMATION: Program or Program) and its Petition to Interim Determination Concerning the be a nationally recognized certification I. Introduction program for electric motor efficiency CSA International Petition for A. Authority Recognition as a Nationally B. Background can be obtained on the World Wide Web Recognized Certification Program for II. Discussion at http://www.csa-international.org/ Electric Motor Efficiency A. General welcome.html, or from Mr. Otto Krepps, B. Application of Evaluation Criteria Manager, Accreditations, CSA AGENCY: Office of Energy Efficiency and 1. Standards and Procedures for International, 178 Rexdale Boulevard, Renewable Energy, Department of Conducting and Administering a Toronto, Ontario, Canada M9W 1R3; Energy. Certification System Telephone: (416) 747–2798; Telefax: ACTION: Public notice of an interim 2. Independence (416) 747–4173; or Electronic Mail at determination and solicitation of 3. Operation of a Certification System in a [email protected]. comments. Highly Competent Manner The final rule for ‘‘Test Procedures, a. General Operating Requirements (ISO/ Labeling, and Certification IEC Guide 65) SUMMARY: Today’s action announces the Requirements for Electric Motors’’ was Department of Energy’s interim b. Guidelines for Corrective Action in the Event of Misapplication of a Mark of published in the Federal Register on determination classifying the CSA Conformity (ISO/IEC Guide 27) October 5, 1999. 64 FR 54141. It is International Motor Efficiency c. General Rules for a Model Third-Party codified in 10 CFR Part 431 in subparts Verification Service Program as a Certification System for Products (ISO/ A, B, E and G. It can also be obtained nationally recognized certification IEC Guide 28) from the Office of Building Research program in the United States for the d. General Requirements for the and Standards, Office of Energy purposes of section 345(c) of the Energy Competence of Testing Laboratories Efficiency and Renewable Energy, EE– Policy and Conservation Act. The (ISO/IEC Guide 25) 41, U.S. Department of Energy, 1000 Department solicits comments, data and (1) Operating Procedures Independence Avenue, SW., information with respect to its interim (2) Testing Laboratory 4. Expertise in IEEE 112–1996 Test Method Washington, DC 20585–0121; determination prior to issuing a final B and CSA C390–93 Test Method (1) Telephone: 202–586–9127; or on the determination. 5. Sampling Criteria and Procedures for World Wide Web at http:// _ DATE: Written comments, data and Selecting an Electric Motor for Energy www.eren.doe.gov/buildings/codes information, and a signed original with Efficiency Testing standards/rules/motors/index.htm. an electronic copy, must be received at III. Conclusion A. Interim Determination A. Authority the Department of Energy by August 5, B. Future Proceedings Part C of Title III of the Energy Policy 2002. and Conservation Act (EPCA) contains I. Introduction ADDRESSES: Comments, data and energy conservation requirements for information should be labeled ‘‘Interim A copy of the ‘‘Petition for electric motors, including requirements Determination Concerning the CSA Recognition of CSA International as a for test procedures, energy efficiency International Petition for Recognition as Nationally Recognized Certification standards, and compliance certification a Nationally Recognized Certification Program for Motor Efficiency’’ (CSA (42 U.S.C. 6311–6316). Section 345(c) of Program for Electric Motor Efficiency,’’ International Petition or the Petition) EPCA directs the Secretary of Energy to and submitted to: Ms. Brenda Edwards- was published in the Federal Register require motor manufacturers ‘‘to certify, Jones, Office of Energy Efficiency and on April 26, 2000. 65 FR 24429. The through an independent testing or Renewable Energy, EE–41, U.S. Petition consisted of a letter from CSA certification program nationally Department of Energy, 1000 International to the Department, recognized in the United States, that Independence Avenue, SW., narrative statements on five subject [each electric motor subject to EPCA Washington, DC 20585–0121. areas, and supporting documentation. efficiency standards] meets the Telephone: (202) 586–2945; Telefax: At the same time, the Department of applicable standard.’’ 42 U.S.C. 6316(c). (202) 586–4617. Also, a copy of such Energy (Department) solicited Regulations to implement this EPCA comments should be submitted to Mr. comments, data and information as to directive, with respect to certification Otto Krepps, Manager, Accreditations, whether CSA International’s Petition programs, are codified in 10 CFR Part CSA International, 178 Rexdale should be granted. The Department also 431 at sections 431.123, Compliance Boulevard, Toronto, Ontario, Canada conducted an independent investigation Certification, 431.27, Department of M9W 1R3. Telephone: (416) 747–2798; concerning the CSA International Energy recognition of nationally Telefax (416) 747–4173. Petition pursuant to 10 CFR 431.28(f). recognized certification programs, and FOR FURTHER INFORMATION CONTACT: The supporting documents that 431.28, Procedures for recognition and James Raba, U.S. Department of Energy, accompanied the Petition, as well as the withdrawal of recognition of Office of Energy Efficiency and material CSA International subsequently accreditation bodies and certification Renewable Energy, Mail Station EE–41, submitted to the Department in support programs. Sections 431.27 and 431.28 of 1000 Independence Avenue, SW., of the Petition, are available in the 10 CFR Part 431 set forth the criteria Washington, DC 20585–0121; Freedom of Information Reading Room, and procedures for national recognition Telephone: (202) 586–8654; Telefax: U.S. Department of Energy, Forrestal of an energy efficiency certification
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program for electric motors by the NEMA did not appear to state a position private labelers or vendors. It cannot be Department of Energy. on national recognition, but instead affiliated with, have financial ties with, For a certification program to be commented on the appropriateness of be controlled by, or be under common classified by the Department as being CSA International’s sampling plan. GE control with any such entity. Further, it nationally recognized, the program recommended CSA International use a should disclose any relationship it must: (1) Have satisfactory standards process equivalent to the National believes might appear to create a and procedures for conducting and Institute of Standards and Technology/ conflict of interest. ISO/IEC Guide 65 administering a certification system, National Voluntary Laboratory sets forth requirements for a and for granting a certificate of Accreditation Program for determining certification program to be impartial, conformity; (2) be independent; (3) be the competency of a testing facility. and have a documented structure that qualified to operate in a highly NEMA asserted that the CSA safeguards that impartiality. For competent manner; (4) be expert in the International process of selecting motors example, each decision on certification test procedure and methodology in IEEE for energy efficiency testing appeared to is made by a person(s) different from Standard 112–1996 Test Method B and be burdensome to manufacturers. those who carried out an evaluation or CSA Standard C390–93 Test Method (1), The Department also conducted an actual testing of the motor. Its policies or similar procedures and independent investigation of the CSA and procedures must distinguish methodologies for determining the International Program pursuant to 10 between product certification and other energy efficiency of electric motors; and CFR 431.28(f). activities; its certification process must (5) have satisfactory criteria and be free from any commercial, financial procedures for selecting and sampling II. Discussion and other pressures that might influence electric motors for energy efficiency A. General decisions; and it must have a committee testing. 10 CFR 431.27(b). structure where members are chosen to Sections 431.27(b)(1) and (c)(1) of 10 B. Background provide a balance of affected interests. CFR Part 431 set forth criteria and Sections 431.27(b)(3) and (c)(3) of 10 Pursuant to 10 CFR 431.28, the guidelines for the standards and CFR Part 431 set forth criteria and Department is required to publish the procedures for conducting and guidelines requiring that a certification CSA International Petition in the administering a certification system and organization must be qualified to Federal Register in order to solicit for granting a certificate of conformity. operate a certification system in a highly comments, data and information on As such, a certification program must competent manner. Of particular whether the Petition should be granted. have satisfactory standards and relevance is documentary evidence that CSA International may then respond in procedures for conducting and establishes experience in the writing to any comments received. After administering a certification system, application of guidelines contained in review of the Petition, other applicable including periodic follow-up activities International Standards Organization/ documents, including public comments to assure that basic models of electric International Electrotechnical and facts found through investigation, motors continue to conform to the Commission (ISO/IEC) Guide 65: 1996, the Department is required to issue an efficiency levels for which they were General requirements for bodies interim determination and notify CSA certified and for granting a certificate of operating product certification systems, International in writing of that interim conformity. ISO/IEC Guide 65 ISO/IEC Guide 27: 1983, Guidelines for determination. Also, the Department is (discussed in 10 CFR 431.27(c)(3) and corrective action to be taken by a required to publish its interim also below) sets forth the general certification body in the event of either determination in the Federal Register requirements intended to ensure a misapplication of its mark of conformity and solicit comments, data and certification program is operated in a to a product, or products which bear the information with respect to the interim consistent and reliable manner. These mark of the certification body being determination. After review of the requirements address: (1) Impartiality; found to subject persons or property to comments and information that is (2) sufficient personnel having the risk, ISO/IEC Guide 28: 1982, General submitted, the Department is required to necessary education, training, technical rules for a model third-party publish in the Federal Register an knowledge and experience; (3) relevant certification system for products, as well announcement of its final detemination procedures for sampling, testing and as experience in overseeing compliance on the Petition. See 10 CFR 431.28(a) inspecting the product, and the means with the guidelines contained in the through (f). necessary to evaluate conformance by a ISO/IEC Guide 25: 1990, General The Department received comments manufacturer with those standards; (4) requirements for the competence of on the CSA International Petition from surveillance and periodic audits to calibration and testing laboratories. the following four manufacturers and ensure continued conformance with the Sections 431.27(b)(4) and (c)(4) of 10 one trade association with respect to the applicable standards; (5) subcontracting CFR Part 431 set forth criteria and CSA International Petition: Sterling work, such as testing, with proper guidelines requiring that a certification Electric, Inc. (Sterling), Baldor Electric arrangements to ensure competence, program must be expert in the content Company (Baldor), Siemens Energy & impartiality, and compliance with the and application of the test procedures Automation, Inc. (Siemens), GE applicable standards; (6) procedures to and methodologies in IEEE Standard Industrial Systems (GE), and the control records, documents and data, 112–1996 Test Method B and CSA National Electrical Manufacturers including review and approval by Standard C390–93 Test Method (1). Of Association (NEMA), dated May 16, appropriately authorized personnel; and particular relevance would be May 22, May 23, May 24, and May 26, (7) control over use and display of documentary evidence that establishes 2000, respectively. In general, Sterling, certificates and marks of conformity. experience in the application of Baldor, and Siemens believe CSA Sections 431.27(b)(2) and (c)(2) of 10 guidelines contained in the ISO/IEC International to be qualified to test and CFR Part 431 set forth criteria and Guide 25. certify electric motors for energy guidelines for independence. A ISO/IEC Guide 25 addresses general efficiency, and favor national certification program must be requirements for establishing quality recognition in the United States of the independent of electric motor systems in laboratories and for CSA International Program. GE and manufacturers, importers, distributors, recognizing their competence to carry
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out specified tests. In part, these standards, programs and procedures, and the sampling procedure to be used, requirements address: (1) Organization integrity of its ‘‘Energy Efficiency were not marked with identification and management that are free from Marking,’’ and continuous numbers and information such as date commercial, financial, and other improvement. CSA International asserts of issue, sources or authorities by which pressures which might adversely affect that it has implemented the the documents were issued and quality of work; (2) independence of requirements specified in the ISO/IEC approved, revision numbers, or a judgment and integrity; (3) supervision Guide 65. Further, CSA International particular page from a set of pages. by persons familiar with the applicable asserts that it has implemented the Consequently, the Department requested test procedures; (4) a quality system, requirements specified in SCC/CAN P– that CSA International submit and manual which contains procedures 3 and SCC/CAN P–4, which the documents relevant to the motor for control and maintenance of Department understands are the efficiency evaluation procedure that had documents, and procedures for periodic Standards Council of Canada been processed and approved by the audit and review; (5) sufficient equivalents of ISO/IEC Guides 65 and CSA International Engineering Quality personnel, having the necessary 25, respectively. In order to substantiate Assurance group. CSA International education, training, technical these assertions, CSA International has complied and submitted, under a letter knowledge and experience for their provided to the Department certain dated June 14, 2001, the following assigned functions, and that training of Divisional Quality Documents (DQDs) DQDs: its personnel is kept up-to-date; (6) all which contain the operating procedures Certification Division Quality/ items of equipment and reference and guidelines used by CSA Management System Manual, DQD materials for the correct performance of International’s staff in support of its No. 050, dated October 4, 2000. tests, and that equipment is properly MEVS Program. Guidelines for the Selection of Test and maintained and calibrated; (7) test In view of the above, the Department Measurement Equipment and equipment that is calibrated and understands that the CSA International Validation of Borderline Test verified prior to operation, and there is Program carries out the ISO/IEC Guides Measurements, DQD No. 308, dated traceability to national standards of 65 and 25 requirements through its March 12, 2001. measurement; (8) documented Quality Assurance System and DQD No. Selection of Test and Measurement instructions for the use and operation of 050, ‘‘Certification Division Quality Equipment/Significant Parameters— equipment, manuals, and applicable test Assurance Manual,’’ DQD No. 200, CSA Energy Efficiency Verification ‘‘Certification Program,’’ DQD No. 306, procedures; (9) retention of testing Program for Three-Phase Induction ‘‘Guidelines for Handling Complaints records with sufficient information to Motors, DQD No. 308.01, dated March and Disputes,’’ DQD No. 306.1, permit repetition of a test; and (10) 12, 2001. ‘‘Customer Complaints,’’ DQD No. 318, where a laboratory is sub-contracted to Witness Testing, DQD No. 316, dated Guidelines for Handling Product conduct testing, that laboratory January 22, 2001. Incidents Investigations,’’ DQD No. 320, complies with the requirements Electric Motor Efficiency Evaluation, ‘‘Factory Inspections,’’ DQD No. 326, contained in ISO/IEC Guide 25 and is DQD No. 384, dated January 23, 2001. ‘‘Handling of Non-conformances,’’ and competent to perform the applicable Application Process—CSA Energy DQD No. 327, ‘‘Corrective & Preventive testing activities. An example of a ‘‘sub- Efficiency Verification Program for Action,’’ which provide necessary contracted’’ laboratory would be a Three Phase Induction Motors, DQD operating procedures and guidelines. manufacturer’s laboratory that tests The Department’s investigation found No. 385, dated January 24, 2001. motors for energy efficiency under the that the CSA International procedures Review of Work and Designation of CSA International MEVS Program. for operating a certification system were Signatories, DQD No. 431, dated Also, where 10 CFR 431.27(b)(4) very general in nature and could be October 17, 2000. requires a certification program to have satisfactorily applied to any certification The Department has examined the satisfactory criteria and procedures for program conducted by CSA above documents and concluded that the sampling and selection of electric International. This raised the issue as to they provide evidence that the motors, likewise, ISO/IEC Guide 25 whether the specific standards and standards and procedures CSA requires the use of documented procedures by which the CSA International uses to conduct a motor sampling procedures and appropriate International Program operates in order efficiency verification program satisfy techniques to select samples. to certify the energy efficiency of the requirements set forth in 10 CFR B. Application of Evaluation Criteria electric motors were adequate, properly 431.27(b)(1). Nevertheless, the documented, well established and Department’s December 20, 2001, 1. Standards and Procedures for maintained, understood, and in fact electronic message to CSA International Conducting and Administering a carried out by staff. requested that CSA International clarify Certification System For example, according to section or make corrections to certain Sections 431.27(b)(1) and (c)(1) of 10 4.8.2 of ISO/IEC Guide 65, the procedures and documents used in its CFR part 431, and ISO/IEC Guide 65, set certification body shall establish MEVS Program. In sum, the Department forth criteria and guidelines for the procedures to control all documents and requested that CSA International standards and procedures to be used in data that relate to its certification confirm or correct the following: (1) administering a certification system and functions, and these documents shall be Confirm that DQD No. 308.01 refers to granting a certificate of conformity. reviewed and approved by authorized IEEE Standard 112–1996 Test Method B The CSA International Petition personnel prior to being issued with the modifications described under asserts, in general, that its certification following initial development or appendix A to subpart B of 10 CFR part quality assurance program system is subsequent amendment. The 431, paragraph 2 subparagraph (2); and based on national and international Department found that procedural (2) correct DQD No. 385 to refer to accreditation requirements and specific documents used in the electric motor C390–93 Test Method (1). Also, the customer requirements in order to efficiency evaluation process, including Department requested that CSA ensure technical excellence, consistency witness testing by CSA International International submit the following of interpretation, application of staff at non-CSA International facilities, documents for examination: DQD No.
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305—Quality/Management System guidelines for the training of technical International’s independence from any Audit Program; DQD No. 313— staff, which is an ongoing activity that relationship with a manufacturer, Guidelines on Retesting; DQD No. 332— is monitored, evaluated and importer, or supplier which might Document Control Procedure; DQD No. documented in the individual’s training create a conflict of interest with its 424—Technical Training; DQD No. record. DQD No. 425, Periodic MEVS Program. Also, the Department 425—Periodic Technical and Process Technical and Process Review, sets forth requested that CSA International Review; and DQD No. 513—Factory guidelines to ensure that technical, provide an explanation as to why a Audit Report. administrative and quality records are direct or indirect relationship with a CSA International’s letter, dated maintained and periodically reviewed motor manufacturer, importer, or March 1, 2002, addressed the above by management. DQD No. 513 is a private labeler through (a) the combined matters and submitted a revised copy of facility audit report form with energy efficiency and product safety DQD No. 308.01, dated February 15, provisions for sampling and compliance certification processes, (b) status as a 2002, to confirm the reference to IEEE with standards. In addition, CSA ‘‘Certification Member,’’ (c) membership Standard 112–1996 Test Method (1) as International submitted DQD No. on a CSA International technical or set forth under appendix A to subpart B 510.02, List of Fully Qualified Project standards development committee, or of 10 CFR part 431, and a revised copy Holders for the Motor Energy (d) shared certification whereby a of DQD 385 that refers to C390–93 Test Verification Program, dated February manufacturer could perform Method (1). CSA International’s March 28, 2002, and DQD No. 050, revised unwitnessed motor testing and submit a 1 letter asserts that its MEVS Program November 30, 2001, CSA International certification report to CSA International, operates pursuant to DQD No. 385, Quality Management System Manual, would not compromise CSA wherein fully qualified staff would visit that supersedes DQD No. 332. CSA International’s independence or bias each testing facility to witness the tests International’s March 1, 2002, letter information presented to CSA being performed, write a detailed report, confirms that all compliance and follow International for the purposes of and have the manufacturer sign an up testing is witnessed by technically compliance with 10 CFR 431.27(b)(2). agreement to manufacture the product qualified staff. CSA International submitted, under a [motor] in accordance with the The Department has examined the letter dated June 14, 2001, the following description in the report. Also, CSA Petition and all other documents documents of policy and procedures as International confirms that there will be described above, and concludes that the further evidence of its independence a minimum of one audit visit per year standards and procedures CSA from manufacturers, importers, by certification staff. International uses to conduct its MEVS distributors, private labelers or vendors: CSA International also submitted, Program satisfy the requirements set Corporate Policy Manual, dated with its March 1, 2002, letter, DQD Nos. forth 10 CFR 431(b)(1) and (c)(1), and December 1, 1996. 305, 313, 320, 385, 424, 425 and 513. the guidelines contained in ISO/IEC Certification Division Policies and Furthermore, CSA International stated Guide 65. Practices Manual, dated February 1999. that DQD No. 332, Document Control Standards of Business Conduct, dated Procedure, had been withdrawn from its 2. Independence May 1993. Quality System and the Department Sections 431.27(b)(2) and (c)(2) of 10 Annual Report 2000. should refer to DQD 050 section 1.5, CFR Part 431, and ISO/IEC Guide 65, set Statement of Independence, signed by ‘‘Documentation System,’’ section 6.0, forth criteria and guidelines for the Vice President, Corporate Secretary ‘‘Document Control,’’ and section 12.0, impartiality. of CSA International and a ‘‘Maintenance of Records.’’ In view of Under Section 2 of its Petition, Commissioner of Oaths and Notary the criteria and guidelines set forth in entitled ‘‘CSA International,’’ CSA Public, Province of Ontario, Canada, 10 CFR 431.27(b)(1) and (c)(1), and ISO/ International provides an overview of its dated June 4, 1998. IEC Guide 65, the Department examined history and a copy of its incorporation The Department has examined the the above-referenced DQDs. In sum, document, by-laws, annual report and above documents and concludes that DQD No. 305 sets forth procedures and an organization chart. CSA International they provide sufficient evidence that the guidelines for staffing, organizing, and asserts that it is an independent CSA International MEVS Program meets conducting audits of the CSA organization, has no affiliation with the requirements for independence International quality system, including manufacturers or suppliers of products which are set forth in 10 CFR technical audits of testing facilities in submitted for certification, and provides 431.27(b)(2), and (c)(2). Its MEVS accordance with ISO/IEC Guide 25. a copy of its ‘‘Statement of Program meets the guidelines for the DQD No. 313 sets forth procedures and Independence’’ to substantiate these objectivity and impartiality of technical guidelines for witness retesting to claims. However, the Department persons and committees which are set ensure continued compliance with, for understands that the CSA International forth in ISO/IEC Guide 65, including example, motor efficiency standards. Standards Division administers the freedom from commercial pressures that DQD No. 320, Factory Inspections, sets development of voluntary consensus might influence the results of the forth guidelines for scheduling and standards for safety matters that involve certification process, an organizational conducting factory audits. DQD No. 385, participation from electric motor structure that provides a balance of Electric Motor Efficiency Evaluation, manufacturers, while the Certification affected interests, and procedures that sets forth the process for evaluating the Division and Quality Management assure each decision on certification is energy efficiency of three-phase Institute provide conformity assessment made by a person(s) different from those induction motors and applies both to programs that carry out laboratory who carried out an efficiency evaluation the regulations in Canada and the testing certification and inspection of or actual testing of a motor. United States, including the scope, electric motors. Furthermore, CSA International’s MEVS sampling methods, test procedures, The Department’s May 14, 2001, letter Program meets the ISO/IEC Guide 25 alternative efficiency determination requested that CSA International submit requirements for organization and methods, and efficiency levels in 10 to the Department any documents that management to ensure confidence that CFR part 431. DQD No. 424, Technical set forth the policies and procedures its independence of judgement and Training, sets forth the policy and that provide assurance of CSA integrity are maintained at all times.
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3. Operation of a Certification System in manufacturer’s testing facility. The certified product. The Department a Highly Competent Manner Department understands that CSA construes this to mean the unauthorized Sections 431.27(b)(3) and (c)(3) of 10 International uses these guidelines in use by a manufacturer or private labeler CFR Part 431 require that the petitioner conjunction with DQD No. 316, Witness of the CSA International Motor demonstrate that its certification Testing, whereby qualified CSA Efficiency Verification Marking program operates in a highly competent International technical staff evaluate a (Marking) on an electric motor, such as manner by establishing its experience in manufacturer’s motor testing laboratory the use of a counterfeit Marking. Under and witness the testing of a motor for ISO/IEC Guide 27, the certification the application of certain ISO/IEC energy efficiency. program would then be required to have Guides, including ISO/IEC Guides 65, Also, the Certification Division of strong corrective procedures in place. 27 and 28, as well as experience in CSA International, in its June 14 letter, Such corrective measures would depend overseeing compliance with the asserts that procedures are in place for upon the nature of the misuse and the guidelines in ISO/IEC Guide 25. regular quality inspections. Further, desire by the certification program to Section 3 of the CSA International CSA International submitted DQD 385, protect the integrity of its mark. Petition, ‘‘Certification Division Quality Attachment No. 1, ‘‘Guide to the CSA The Department has examined the Assurance Manual,’’ states that ‘‘CSA Energy Efficiency Verification Service,’’ CSA International Certification Division International has implemented the that states in paragraph 12.1 ‘‘a Policies and Practices Manual and finds requirements specified in ISO/IEC minimum of one visit to each that it contains rules for authorized use Guide 65, General requirements for manufacturing plant will be carried out of the CSA International Marking, and bodies operating product certification each year.’’ procedures that address unauthorized systems.’’ Furthermore, CSA The Department believes that the representation of certification of a International asserts that its Quality above documents provide evidence that product or process, and the measures Assurance system is based, in part, on procedures are in place for initial that CSA International would take to ISO/IEC Guide 25. Also, CSA compliance testing that is witnessed by protect the integrity of its Marking. International asserts that it has both CSA International staff, and procedures Also, the Department has examined implemented the requirements specified are in place for regular quality sections 15.0, ‘‘Control on Non- in SCC/CAN P–3 and SCC/CAN P–4, inspections of manufacturers’ facilities. conformances,’’ and 16.0, ‘‘Corrective which the Department understands are Nevertheless, the Department’s and Preventive Action,’’ contained in the Standards Council of Canada electronic message to CSA International, the CSA International Quality equivalents of ISO/IEC Guides 65 and dated December 20, 2001, requested that Management System Manual, DQD 050, 25 respectively. CSA International confirm that all revised November 30, 2001. These a. General Operating Requirements compliance and follow-up testing of sections establish policies and (ISO/IEC Guide 65) motors for energy efficiency is procedures to control CSA International witnessed by a technically qualified services, within the CSA International The Department’s letter to CSA CSA International representative. ‘‘Quality Management System,’’ which International, dated May 14, 2001, CSA International’s letter, dated do not conform to the specified requested evidence that, at a minimum, March 1, 2002, confirms that ‘‘all requirements, prevent their unintended the initial determination as to whether compliance and follow-up testing is use, establish a system for taking an electric motor is in compliance with witnessed by technically qualified appropriate actions to resolve actual or 10 CFR 431.42(a) is in fact witnessed by staff.’’ Further, CSA International potential non-conformances, and apply CSA International staff and procedures submitted as evidence revised DQD No. suitable corrective and preventive are in place for regular quality audits of 385, Electric Motor Efficiency actions. The Department concludes that all inspections and testing. Evaluation, dated February 28, 2002, the CSA International Program CSA International submitted, by letter and DQD No. 510.02, List of Fully satisfactorily follows the guidelines for dated June 14, 2001, the following Qualified Project Holders for the Motor corrective action to be taken by a documents of policy and procedures as Energy Efficiency Verification Program, certification organization in the event of further evidence of its competency and dated February 28, 2002, to substantiate misapplication of a mark of conformity expertise in operating a certification its assertion of witness testing. The to an electric motor, set forth in 10 CFR system: Certification Division Policies Department has examined the above 431.27(c)(3) and ISO/IEC Guide 27. and Practices Manual, dated February documents and concludes that the c. General Rules for a Model Third-Party 1999; Certification and Testing Services standards and procedures CSA Certification System for Products (ISO/ Brochure; DQD No. 050—Certification International uses to conduct its MEVS IEC Guide 28) Division Divisional Quality/ Program satisfy the requirements for Management System Manual, October 4, training, expertise, and experience in ISO/IEC Guide 28 addresses 2000; Application for CSA Certification operating a certification system which minimum guidelines for a third party Services Agreement Form; and DQD No. are set forth in 10 CFR 431.27(b)(3) and certification system in determining 301—Guidelines for Certification (c)(3), and ISO/IEC Guide 65. conformity with product standards Division Representation on Standards through sample selection, initial testing Committees, dated March 31, 2001. b. Guidelines for Corrective Action in and assessment of a factory quality Also, CSA International submitted a the Event of Misapplication of a Mark of management system, follow-up copy of DQD No. 385, Application Conformity (ISO/IEC Guide 27) surveillance, subsequent testing of Process—CSA Energy Efficiency ISO/IEC Guide 27 identifies samples from the factory, and the use of Verification Program for Three Phase procedures which a certification a mark of conformity. Furthermore, ISO/ Induction Motors, Attachment 1, program should consider in response to IEC Guide 28 requires a certification paragraph 6, ‘‘Qualification of a a reported misuse of its registered mark program operating at a national level, Manufacturers Testing Facilities,’’ and of conformity. According to paragraph such as under section 345(c) of EPCA paragraph 12, ‘‘Follow-up Visits,’’ 1.1(a) of ISO/IEC Guide 27, ‘‘misuse’’ which requires manufacturers to certify which set forth guidelines for initial and may take a variety of forms, such as a compliance through a ‘‘nationally subsequent evaluation of a mark of conformity appearing on a non- recognized’’ certification program, to
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have a suitable organizational structure for misuse of a certificate or mark of Third party certification programs and utilize personnel, equipment, and conformity. The Department concludes must have experience overseeing operating procedures that comply with that the CSA International Program compliance with the guidelines the criteria for a testing laboratory in satisfies the general guidelines for a contained in ISO/IEC Guide 25. ISO/IEC ISO/IEC Guide 25. model third-party certification system in Guide 25 sets out the general Consistent with the above ISO/IEC 10 CFR 431.27(c)(3), and the guidelines requirements by which a laboratory Guide 28 guidelines, Section 4 to the set forth in ISO/IEC Guide 28. must operate if it is to be recognized as CSA International Petition, ‘‘CSA The above-referenced DQD No. 050, competent to carry out specific tests. International’s Motor Efficiency Quality Management System Manual, According to Section 3 of the CSA Verification Program,’’ describes the DQD No. 385, Electric Motor Efficiency International Petition, ‘‘Certification CSA International MEVS as depending Evaluation, and DQD No. 308.01, Division Quality Assurance Manual,’’ upon: (1) Satisfactory evaluation, Selection of Test and Measurement CSA International’s ‘‘Quality sampling and testing to determine that Equipment/Significant Parameters— Assurance’’ system is based on national the requirements of the applicable CSA Energy Efficiency Verification and international accreditation standard, for example CSA Standard Program for Three-Phase Induction requirements, one of which is ISO/IEC C390–93, are met on a continuing basis; Motors, provide general policies, Guide 25. In view of ISO/IEC Guide 25, (2) identification of the critical features practices and procedures that govern the the Department examined the that affect motor efficiency; (3) initial conformity assessment services, and, in procedures and guidelines contained in motor qualification testing and follow- particular, those that relate to the CSA International’s Quality up retesting to ensure continued electric motor efficiency certification Management System Manual, DQD No. compliance; (4) continued access to a program. The CSA International Quality 050, and the above DQD Nos. 385, manufacturer’s facilities and records, Management System Manual addresses, 308.01 and 316 as they apply to the product retesting and challenge testing; for example, ‘‘Quality System,’’ evaluation of an electric motor testing (5) annual follow-up inspections; (6) ‘‘Standards of Conduct,’’ facility. proper authorization to apply the CSA ‘‘Organization,’’ ‘‘Periodic Technical The Department finds that DQD No. International Motor Efficiency and Process Review,’’ ‘‘Audit Program,’’ 050 establishes the general policies, Verification Service Marking; and (7) ‘‘Staff Training,’’ ‘‘Inspection, standards of conduct, procedures, corrective action when a motor fails to Measuring and Test Equipment,’’ guidelines and organization comply. ‘‘Maintenance of Records,’’ and requirements for CSA International’s In view of the above ISO/IEC 28 ‘‘Certification and Testing Programs and quality program. These are based on criteria, the Department examined the Services.’’ The Electric Motor Efficiency national and international accreditation CSA International Certification Division Evaluation addresses, for example, requirements such as ANSI Z34.1, Policies and Practices Manual, dated ‘‘Operational Rules/Procedure,’’ American National Standard for February 1999, Quality Management ‘‘Evaluation,’’ ‘‘Qualification of Certification—Third Party Certification System Manual, DQD No. 050, dated Manufacturers Test Facilities, Test Program, EN 45004, General Criteria for November 30, 2001, Management Audit,’’ ‘‘Marking Authorization,’’ the Operation of Various Types of System Audit Program, DQD No. 305, ‘‘Follow-up Visits,’’ ‘‘Product Bodies Performing Inspection, ISO/IEC dated October 31, 2001, Guidelines on Retesting,’’ ‘‘Electric Motor Efficiency 17025, General Requirements for the Retesting, DQD No. 313, dated Evaluation Procedure,’’ ‘‘MEEV— Competence of Testing and Calibration November 19, 1999, Selection of Test Sampling Procedure for U.S.,’’ and Laboratories, ISO/IEC Guide 65, General and Measurement Equipment/ ‘‘Plan and Procedure Relative to Requirements for Bodies Operating Significant Parameters—CSA Energy Alternative Efficiency Determination Product Certification Systems, and NIST Efficiency Verification Program for Methods (AEDMs).’’ Selection of Test Handbook 150, National Voluntary Three-Phase Induction Motors, DQD No. and Measurement Equipment/ Laboratory Accreditation Program 308.1, dated February 15, 2002, Factory Significant Parameters—CSA Energy (NVLAP)—Procedures and General Inspections, DQD No. 320, dated Efficiency Verification Program for Requirements. Furthermore, the January 27, 1999, Electric Motor Three-Phase Induction Motors Department finds that the Standards Efficiency Evaluation, DQD No. 385, addresses, for example, the Council of Canada1 lists CSA dated February 28, 2002, Periodic requirements of IEEE Standard 112– International as an accredited Technical and Process Review, DQD No. 1996, Test Method B, with the certification body in the area of its 425, dated October 3, 2000, and Facility modifications described under appendix Energy Efficiency Verification Service Audit Report, DQD No. 513, Revision A. A to subpart B of 10 CFR Part 431, the The Department finds that, in general, and specifically identifies CSA C390, National Institute of Standards and ‘‘Energy Efficiency Test Methods for both ISO/IEC Guide 28, and the above- Technology (NIST) Handbook 150–10 referenced CSA International Three-Phase Induction Motors,’’ which entitled, Efficiency of Electric Motors, adds credence to the evidence that CSA documents address: (1) The basic and CSA C390–93 when selecting test conditions and rules for a manufacturer International operates its certification and measurement equipment. program in a highly competent manner, to obtain and retain a certificate of The Department has examined the including overseeing compliance with conformity or mark of conformity; (2) contents of these manuals and the guidelines contained in ISO/IEC initial inspection of a motor factory and concludes that they satisfy the Guide 25 to test electric motors for a manufacturer’s quality management guidelines for conducting a model third- energy efficiency. system; (3) sample selection; (4) initial party certification program at the The Department finds that DQD No. testing; (5) product evaluation; (6) national level as applicable under 10 385 establishes the guidelines for CSA surveillance; (7) identification of CFR 431.27(c)(3) and ISO/IEC Guide 28. conformity in the form of a certificate of International’s operation of its motor conformity or mark of conformity; (8) d. General Requirements for the 1 withdrawal of a certificate or mark of Competence of Testing Laboratories The Standards Council is a federal Crown (ISO/IEC Guide 25) corporation which has the mandate to coordinate conformity by the certification program; and oversee the efforts of the National Standards and (9) guidelines on corrective action (1) Operating Procedures System in Canada.
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energy efficiency evaluation process in that it utilizes, for example CSA staff to monitor product control the United States pursuant to 10 CFR Standard C390, (2) the technical measures and testing facilities, to Part 431, including the test procedures, capability of testing facility staff, conduct retesting, and to take any alternative efficiency determination ongoing training of that staff and corrective actions. methods, and sampling procedures in maintenance of personnel records, (3) • ISO/IEC Guide 25 requires a 10 CFR 431.23 and 431.24. Under DQD suitability of the testing environment, manufacturer’s testing laboratory to No. 385, a manufacturer’s motor testing (4) suitability and accuracy of the test have sufficient personnel having the facility is required to have adequate equipment that is to be used, (5) the necessary education, training, technical controls in place to ensure system for calibrations and control of knowledge and experience. Similarly, manufacturing consistency and test methods, and (6) traceability of the CSA International Program evaluates consistent product performance with calibration to national standards. Also, the technical capability of the testing respect to energy usage. Also, the testing DQD No. 316 requires examination of facility staff, staff training, and facility is examined for the type and the manufacturer’s quality system, maintenance of personnel records. accuracy of test equipment, calibration, proper supervision and control of • ISO/IEC Guide 25 requires the test procedures and measurement testing, documentation control, and proper environment and equipment for techniques, a system for documenting retention of records. performance of testing, and that such test results, and staff training. The In addition to examining the equipment is properly maintained and underlying documentation that Department finds that under DQD No. calibrated. Similarly, the CSA establishes the policies and procedures 385, the CSA International sampling International Program requires the of the CSA International quality system procedure adheres to the sampling proper environment for testing, control and operating procedures for evaluating procedure in 10 CFR 431.24(b). Also, of test methods, and suitable equipment electric motors, the Department directly DQD No. 385 requires periodic audit of that is accurate and properly calibrated compared the requirements in ISO/IEC the test facility and calibration system. and traceable to nationally recognized Guide 25 with CSA International’s A minimum of one visit per year to a standards of measurement. MEVS Program as it would apply to a manufacturing plant is carried out by • ISO/IEC Guide 25 requires the CSA International staff to monitor manufacturer’s motor testing laboratory under a certification program and found testing laboratory to maintain a record product control measures and testing system of original observations, facilities, and to conduct retesting. them to be consistent with each other. The Department found, for example: calculations, reference to sampling Furthermore, DQD No. 385 sets forth • ISO/IEC Guide 25 sets forth procedures, and derived data sufficient procedures that address Alternative requirements for organization and to permit repetition of a test. Similarly, Efficiency Determination Methods management of a testing laboratory to the CSA International Program requires (AEDMs) in order to reduce testing ensure proper supervision and integrity that the test procedures be under burden and accommodate the large of data. Similarly, the CSA International documentation control, and that test number of motors a manufacturer would Program requires examination of the records be current and properly produce. The CSA International manufacturer’s quality system, proper maintained. Also, the CSA International procedures essentially follow the supervision and control of testing, sampling procedure is consistent with procedures for the substantiation of an documentation control, and retention of the sampling procedure set forth in 10 AEDM as provided in 10 CFR records. CFR 431.24(b). 431.24(a)(3). The Department • ISO/IEC Guide 25 requires a • Both ISO/IEC Guide 25 and the CSA understands that CSA International uses manufacturer’s testing laboratory to International Program require test these guidelines in conjunction with have a quality system with documented reports that contain similar information. DQD No. 316, whereby qualified CSA policies and procedures, such as for the In view of these comparisons, the International technical staff evaluate a organization and operation of a testing Department believes that CSA manufacturer’s motor testing laboratory laboratory, traceability of International’s MEVS Program satisfies and witness the testing of an electric measurements, calibration of the requirement of 10 CFR 431.27(c)(3) motor for energy efficiency. equipment, test procedures used, for documentary evidence that The Department finds that DQD No. procedures for corrective actions and establishes experience in operating a 308.01 establishes guidelines that follow audits. Similarly, the CSA International certification system and overseeing the requirements of IEEE Standard 112– Program requires use of the test compliance with the guidelines for 1996 Test Method B, CSA Standard procedures and calibration of competence contained in ISO/IEC Guide C390–93, and NIST Handbook 150–10, equipment set forth in 10 CFR 431.23 25 to test electric motors for energy Efficiency of Electric Motors, when and the requirements of IEEE Standard efficiency. selecting test and measurement 112–1996, Test Method B, with the equipment that would be utilized for modifications described in appendix A (2) Testing Laboratory testing electric motors under the CSA to subpart B of 10 CFR Part 431, and Under Section 1, ‘‘Designated Testing Motor Efficiency Verification Service CSA Standard C390–93. In addition, the Facility,’’ of the CSA International Program. These are the same procedures CSA International Program requires use Petition, it is stated that ‘‘as part of CSA identified in 10 CFR 431.23. of the quality system set forth in NIST International’s Motor Energy Efficiency The Department finds that DQD No. Handbook 150–10 when selecting test Verification Program we are using our 316, Witness Testing, provides and measurement equipment, meeting Toronto test facility,’’ and that ‘‘the guidelines for evaluating and significant calibration parameters for facilities of Toronto are used for testing monitoring the capability of a testing electric motor efficiency evaluation, and the full range of motors up to 50 facility, such as a manufacturer’s motor having traceability of calibrated horsepower.’’ Also, under Section 3, efficiency testing facility for performing equipment to national standards. Also, ‘‘Certification Division Quality tests that are witnessed by CSA the CSA International Program requires Assurance Manual,’’ of the CSA International technical staff. Under DQD periodic audits of the test facility and International Petition, CSA International No. 316, a motor manufacturer’s testing calibration system, whereby a minimum asserts that its Quality Assurance facility is evaluated according to (1) the of one visit per year to a manufacturing system is based, in part, on ISO/IEC scope of the standard and test method plant is carried out by CSA International Guide 25 and SCC/CAN P–4 that is the
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Standards Council of Canada equivalent to 50 horsepower. Also, the Department the selection and sampling of electric of ISO/IEC Guide 25. understands that LTEE, although not motors tested for energy efficiency, and GE Industrial Systems’ comments, officially listed in the NIST/NVLAP provide documents that establish dated May 24, 2000, recommend that a 2001 Directory, participates in the NIST/ experience in applying the guidelines test facility, such as the ones used by NVLAP Proficiency Testing Program. for confidence in testing laboratories CSA International which test motors for Section 431.27 of 10 CFR Part 431 contained in ISO/IEC Guide 25. Such energy efficiency, should be established does not require a certification program guidelines address quality audits and and maintained by a process equivalent to actually operate its own motor testing reviews, personnel, equipment, test to the National Institute of Standards laboratory, nor is a laboratory operated methods, sampling, and records. and Technology/National Voluntary or observed by a certification program Section 3, ‘‘Certification Division Laboratory Accreditation Program required to be accredited. Nevertheless, Quality Assurance Manual,’’ of the CSA (NIST/NVLAP) as set forth in the NIST the Department believes that a testing International Petition, states that its Handbook 150–10, ‘‘Efficiency of facility operated or observed by a Quality Assurance system is based on Electric Motors.’’ Also, GE Industrial certification program should follow the national and international requirements Systems recommends that any guidelines in ISO/IEC Guide 25 and in that include ISO/IEC Guide 25. The organization that certifies the energy principle be reasonably close to Department understands that section 6, efficiency of electric motors participate conforming to the technical ‘‘Personnel,’’ of ISO/IEC Guide 25 sets in the NIST/NVLAP proficiency testing requirements of an accredited forth general requirements for the program in order to understand, laboratory. The Department understands training, technical knowledge, and document, and make known any that, in general, the evaluation of a experience of testing laboratory variations among participating testing motor testing laboratory under an personnel. In sum, it states that the facilities. accreditation program includes an on- testing laboratory shall have sufficient The Department’s investigation found site assessment, proficiency testing, personnel, having the necessary that the CSA International testing audit of a laboratory’s policies and education, training, technical facility in Toronto was not fully operational procedures, review of staff knowledge and experience for their operational at the time of the CSA qualifications, checks of proper assigned functions; training of International Petition, and that the CSA maintenance and calibration of test personnel is kept up-to-date; and International Program relies heavily on equipment, and records review. records on relevant qualifications, the manufacturer to provide most of the Likewise, the evaluation under the CSA training, skills, and experience of the test data, including data for initial International Program includes technical personnel shall be maintained. qualification based on sampling and evaluation of the manufacturer’s testing The Department’s investigation found testing motors for energy efficiency, that facility, control and maintenance and that the technical qualifications of the are not witnessed by CSA International calibration of test equipment, factory CSA International staff involved in the staff. Nor was there clear evidence of audits for continued compliance, MEVS Program were very limited with what quality control exists for document control, periodic audits of the regard to electric motor construction, monitoring the validity of motor operational and technical consistency of performance, and efficiency testing. efficiency testing by a manufacturer. the program, control of non- Also, it appeared to the Department that Also, it appeared that the CSA conformances, staff training, and CSA International has only one person International Program lacked sufficient witness testing. The Department that actually participates in the staff to perform all the annual follow-up believes that the goal of a third party qualification of a motor manufacturer’s inspections, bi-annual retesting, cross- certification program is to provide test facility, witnesses testing, and both testing every three years, unannounced assurance that test results are accurate, directs and evaluates compliance retesting, and challenge testing which it valid, and capable of being replicated. testing, cross testing, and retesting. claimed would occur. The Department’s Tests must be performed with a degree Consequently, the Department requested May 14, 2001, letter requested that CSA of oversight so that the results are not that CSA International address its International submit information influenced by marketing and production intention to assign additional expert concerning its Toronto motor testing concerns. The Department believes that staff to its MEVS Program, and submit facility, its oversight of testing the CSA International Program, while evidence as to the nature and extent of performed at a motor manufacturer’s not identical to a laboratory training the current staff receives in facility, and procedures for regular accreditation program, nevertheless order to maintain proficiency in the quality audits of all inspections and satisfactorily follows the ISO/IEC 25 evaluation of motor design and testing for motor efficiency. Guidelines. construction, and the practice of The Certification Division of CSA efficiency testing. International, in its June 14, 2001 letter, 4. Expertise in IEEE Standard 112–1996 CSA International, in its June 14, 2001 asserts that the Toronto test facility is Test Method B and CSA Standard C390– letter, asserts that it has identified fully operational, initial compliance 93 Test Method (1) additional staff for participation in the testing is witnessed by CSA Sections 431.27(b)(4) and (c)(4) of 10 operation of its MEVS Program, International staff, and that procedures CFR Part 431 set forth evaluation additional training would be provided, are in place for regular quality criteria and guidelines whereby and that it would ensure its staff inspections of a manufacturer’s motor personnel conducting a certification resources are appropriate to the amount testing laboratory. In view of the June 14 program should be expert and of work required by its Motor Efficiency letter, the Department understands that experienced in the content and Verification Program. On August 20, CSA International uses the Laboratoire application of IEEE Standard 112–1996 2001, the Department received an des technologies electrochimiques et Test Method B and CSA Standard C390– electronic message from CSA des electrotechnologies d’Hydro-Quebec 93 Test Method (1), or similar International which identified (LTEE) for testing motors over 50 procedures and methodologies for additional staff, their credentials, and horsepower, and acknowledges that the determining the energy efficiency of the associated training each would CSA International test laboratory in electric motors. The program must have receive as part of its MEVS Program in Toronto is capable of testing motors up satisfactory criteria and procedures for order to fulfill the requirements set forth
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in 10 CFR 431.27(b)(4) and 431.27(c)(4). for compliance testing provides International statistical approach to In sum, the Department understands statistically meaningful sampling sampling of motors for testing as the that this training addresses electric procedures.’’ Moreover, the NIST selection and testing of 5 basic models motor construction, performance, and analysis was extensive in order to with a sample size of 1 to 5. GE efficiency testing, and will become part determine whether a particular Industrial Systems asserts that a of a regular training program. Also, the sampling plan would be valid for the minimum sample selection to Department understands that certain purpose of establishing compliance with substantiate an Alternative Efficiency technical staff will work under the EPCA motor efficiency levels. Also, Determination Method 2 should be 5 direction of a CSA International senior section 10.5 of ISO/IEC Guide 25: 1990 randomly selected units of 5 basic engineer or qualified project leader. requires the use of documented models, in order to provide a look at the In the Department’s view, any procedures and appropriate statistical population and statistical variation in technically qualified person could techniques to select samples. the basic model. Further, GE Industrial satisfy the criteria for expertise in the Under section 4 of the Petition, Systems asserts that frequent sampling content, application and methodologies entitled ‘‘CSA International’s Motor over time is more appropriate to an of the test procedures pursuant to 10 Efficiency Verification Program,’’ CSA assessment of design and manufacturing CFR 431.27 (b)(4) if that person: (1) Is International describes its process for variables, and therefore an ongoing proficient in the test methodology of the selection and sampling of electric sampling program would be IEEE Standard 112 Test Method B and motors to be tested for energy efficiency. appropriate. CSA C390–93 Test Method (1); (2) is CSA International asserts that the NEMA’s comment, dated May 26, familiar with the electrical, mechanical objective of its sampling process is to 2000, asserts that CSA International’s and environmental capabilities of a minimize manufacturers’ tests, costs sampling process appears to be more testing laboratory system; (3) and time to market, while providing burdensome than required by the understands how to prepare and mount sufficient confidence that the series of Department of Energy. NEMA did not a motor for testing, which includes the motors verified meet the applicable elaborate on its comment. connection and operation of the test energy efficiency standard. Further, In view of GE Industrial Systems’ and equipment; (4) is competent in CSA International conducts NEMA’s comments, the Department’s calibrating test equipment; and (5) is unannounced follow-up inspections, investigation found confusing competent with data collection and random motor retesting, and challenge statements from CSA International analysis. CSA International’s experience testing to ascertain continued concerning its intentions to substantiate in standards development, testing and compliance with energy efficiency a manufacturer’s AEDMs, either (1) by evaluation of motors to both U.S. and standards by a manufacturer. The analyzing and comparing a International safety and similar energy Department understands that under the manufacturer’s energy efficiency efficiency procedures and CSA International sampling program, a modeling methods to actual test methodologies provide sufficient minimum of 5 basic models are required measurements, or (2) through evidence of CSA International staff to be tested to verify the energy comparisons between a motor having the necessary proficiency and efficiency ratings of a series of motors. manufacturer’s energy efficiency expertise to conduct energy efficiency The basic models are selected so as to calculations on a software program and evaluations under ISO/IEC Guide 25. represent the complete range of motors a CSA International software program. It Thus, the Department believes that the within the series, which could require is not clear to the Department that the credentials of the CSA International more than 5 basic models. Thereafter, 1 CSA International Program would staff, regular additional training, and to 5 units of each basic model are tested. substantiate an AEDM in a manner that monitoring by CSA International The average efficiency of the sample lot is consistent with 10 CFR 431.24(a)(3) management, satisfy the general must equal or exceed the required and (4), whereby a manufacturer could requirements for the training, technical nominal full load efficiency. test 5 units each of 5 basic models and knowledge, and experience of testing Furthermore, CSA International’s goal use the test results to substantiate an laboratory personnel under 10 CFR for verifying continued compliance is to AEDM. Furthermore, it is not clear that 431.27(b)(4) and (c)(4). retest high volume motors at least once the CSA International sampling plan every 2 years. Other motors of different would be valid if the initial sample lot 5. Sampling Criteria and Procedures for frame series are retested as needed to is one motor, nor is it clear that testing Selecting an Electric Motor for Energy ensure continued compliance. Also, the all the basic models that a manufacturer Efficiency Testing Department understands that under the produces would not be unduly Section 431.27(b)(4) of 10 CFR Part CSA International retesting program, the burdensome. The Department’s May 14, 431 requires a certification organization initial sample lot is one motor, and if 2001, letter requested that CSA to have satisfactory criteria and after retesting the result equals or International submit documents and procedures for the selection and exceeds the minimum result from the other materials to substantiate that its sampling of electric motors tested for qualification tests, then no further motor sampling procedures are energy efficiency. Based on the National samples would be required. If the result Institute of Standards and Technology is less than the minimum result from 2 Alternative Efficiency Determination Method report, NISTIR 6092, ‘‘Analysis of the qualifying tests, then motor samples (AEDM) means a method of calculating the total power loss and average full load efficiency of an Proposals for Compliance and would be selected pursuant to the electric motor. See 10 CFR 431.2. Section Enforcement Testing Under the New qualifying test procedure. 431.24(a)(1) of 10 CFR Part 431 provides that the Part 431: Title 10, Code of Federal GE Industrial Systems’ comments, energy efficiency of a motor must be determined Regulations,’’ January 1998, which dated May 24, 2000, assert that there either by testing in accordance with the Department of Energy test procedure or application of an analyzed various criteria and sampling should be some understanding of the AEDM. Section 431.24(a)(3) of 10 CFR Part 431 plans proposed for establishing level of confidence CSA International requires that, in sum, the accuracy and reliability compliance with the nominal full-load believes appropriate for the efficiency of an AEDM must be substantiated through testing efficiency levels prescribed by EPCA, 42 data that is determined from testing, and at least 5 basic models; and that the calculated total power loss for each basic model must be within U.S.C. 6313(b)(1), the Department the basis for that confidence level. GE plus or minus 10 percent of the mean total power determined that ‘‘the NEMA proposal Industrial Systems describes the CSA loss determined from testing.
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statistically valid and result in a CSA International which set forth its for Motor Model Qualification Testing’’ confidence level such that the true mean ‘‘Plan and Procedure Relative to should be modified to read ‘‘Samples of energy efficiency of a basic model meets Alternative Efficiency Determination Units Required for Motor Model or exceeds the motor’s represented Methods (AEDMs)’’ (Plan and Qualification Testing,’’ (3) the section energy efficiency level. Further, the Procedure). In sum, CSA International entitled ‘‘Selection of Basic Model Department’s letter requested that CSA asserts that it will require a motor Types to Represent a Group of Motors’’ International submit its plan and manufacturer to submit predicted should be modified to read ‘‘Selection of procedures to evaluate a manufacturer’s energy efficiency values that represent a Basic Models for Testing,’’ and (4) the AEDMs. group of motors. CSA International specific example provided under CSA International, in its June 14, 2001 would then select a minimum of 5 basic ‘‘Example Scope of Certification’’ letter, describes its plan and procedures models from that group, and 5 samples should be corrected to accurately depict to evaluate a manufacturer’s AEDMs, of each basic model, for testing to the sampling guidelines that precede it whereby CSA International verifies that determine the correlation between the in DQD 384 Attachment 2. the manufacturer’s software energy predicted efficiency and the tested Also, DQD 384 Attachment 2, entitled efficiency calculations are in agreement efficiency. CSA International asserts ‘‘Samples Required for Scheduled Motor with its independent calculated values that the individual and average Retesting,’’ states: ‘‘The initial retest using the methods described in CSA efficiency of the motors tested shall be sample lot shall consist of one motor. If Standard C390. The Department in accordance with 10 CFR the measured full load efficiency from understands that CSA International uses 431.24(b)(2)(i) and (ii). Also, CSA retest meets or exceeds the lowest full the test data measurements, and then (a) International asserts that it will conduct load efficiency determined from the performs its own calculations to periodic follow-up audits and testing qualification testing, then no further determine the efficiency of the tested witnessed by CSA International staff. samples are required for testing.’’ It is motor and (b) matches it with the The Department finds that the above not clear to the Department whether the manufacturer’s calculated efficiency. If Plan and Procedure is consistent with ‘‘lowest full load efficiency determined the two values are in agreement for all 10 CFR 431.24(a)(1)–(4)(i). However, in from the qualification testing’’ refers to the motors tested, then CSA item 3 of the Plan and Procedure, CSA the results of actual tests or some other International would accept the International states that ‘‘tests may be criterion. Consequently, the Department manufacturer’s efficiency calculation performed at the manufacturer’s requested that the procedures to be used procedure as intended by 10 CFR previously evaluated testing facility during retesting be clarified. 431.24(b)(3). In its June 14 letter, CSA with some testing witnessed by [CSA Moreover, the Department believes International asserts that its sampling International] CSAI staff.’’ This that the sampling procedures set forth in procedures for electric motor efficiency appeared to contradict the 10 CFR 431.24(b)(2)(i) and (ii) provide evaluations are statistically valid, use aforementioned CSA International reasonable assurance that the average random selection, and result in policies and procedures in DQDs 385 full load efficiency of the basic model confidence levels such that the true and 316, and assertions by CSA being retested meets or exceeds the mean energy efficiency of a basic model International in its Certification and mandated efficiency level and, meets or exceeds the motor’s Testing Services booklet, that both accordingly, may be applied during re- represented energy efficiency level. initial compliance and periodic follow- testings. The Department recommended Furthermore, CSA International’s up tests are witnessed by qualified CSA that CSA International adopt these DQD 384, Electric Motor Efficiency International technical staff. The sampling procedures for retesting. Thus, Evaluation, paragraph 6.2 and Department requested that CSA when testing a sample size of one motor Attachment No. 2, MEEV—Sampling International confirm that the ‘‘witness during retesting, the efficiency of that Procedure, dated January 23, 2001, set testing’’ policies and procedures apply unit must not be less than the full load forth the CSA International sampling to initial and subsequent verification of efficiency described in section procedure whereby, in sum, CSA a manufacturer’s AEDMs. 431.24(b)(2)(ii); and, when samples of International staff selects a minimum of On August 30, 2001, the Department two or more motors are tested during 5 basic models that represent a complete received an electronic message from retesting, the average efficiency of the range of motors, and tests 1 to 5 units CSA International containing a revised lot must not be less than the full load of those basic models to determine sampling plan and procedure DQD 384, efficiency described in section whether the average efficiency of the ‘‘Attachment 2, MEEV—Sampling 431.24(b)(2)(i) and, the lowest efficiency sample lot equals or exceeds the Procedure for U.S., Part 431—DOE of any unit in the lot must not be less required efficiency rating. Also, the Energy Efficiency Program for Motors,’’ than the full load efficiency described in Department understands that CSA dated August 29, 2001, for motor section 431.24(b)(2)(ii). International is establishing a database compliance testing, substantiation of an CSA International’s letter, dated to substantiate that the sampling plan is AEDM, and retesting. The Department March 1, 2002, addresses the above valid, uses random selection, and examined the above DQD 384 recommendations. As such, the provides the required confidence limits. Attachment 2 and, in general, found it Department understands that DQD No. In view of the above-referenced to be consistent with 10 CFR 384 and DQD No. 385 have been sampling plan, the Department 431.24(a)(1)–(4)(i) and 431.24(b)(1). combined into one document, and have calculates that a manufacturer could be However, where the CSA International been revised to clarify the sampling and required to test only 5 motors (5 basic sampling procedures follow 10 CFR compliance requirements. Also, CSA models × 1 unit = 5 motors) to 431.24, the Department recommended International revised the above DQD No. substantiate compliance for up to 113 that DQD 384 Attachment 2 clearly state 384, Attachment 2, MEEV—Sampling basic models. The Department believed that (1) the average full load efficiency Procedure which is now DQD No. 385, this approach was not statistically valid of each basic model of electric motor Attachment 2 in order to incorporate the for the purposes of 10 CFR 431.24 and must be determined either by testing or Department’s above recommendations 431.27(b)(4). by the application of an Alternative both for initial qualification testing and On August 28, 2001, the Department Efficiency Determination Method, (2) retesting. The Department has examined received an electronic message from the section entitled ‘‘Samples Required the above documents and concludes
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that the standards and procedures CSA DEPARTMENT OF ENERGY Telephone (202) 586–8654, Telefax International uses to conduct sampling (202) 586–4617, or: under its MEVS Program are consistent Office of Energy Efficiency and [email protected]. with 10 CFR 431.24 and 431.42, and Renewable Energy Francine Pinto, Esq., U.S. Department satisfy the criteria for the selection and of Energy, Office of General Counsel, sampling of electric motors to be tested 10 CFR Part 431 Mail Station GC–72, 1000 Independence for energy efficiency under 10 CFR [Docket No. EE–RM–96–400] Avenue, SW., Washington, DC 20585– 431.27(b)(4). 0103, Telephone (202) 586–7432, Telefax (202) 586–4116, or: III. Conclusion Energy Efficiency Program for Certain Commercial and Industrial Equipment: [email protected]. A. Interim Determination Interim Determination Concerning the SUPPLEMENTARY INFORMATION: Petition for Recognition of In view of CSA International’s I. Introduction Petition and supporting documents, the Underwriters Laboratories Inc. as a A. Authority public comments received, the Nationally Recognized Certification B. Background Department’s independent Program for Electric Motor Efficiency II. Discussion A. General investigation, and CSA International’s AGENCY: Office of Energy Efficiency and B. Application of Evaluation Criteria actions to correct the defects the Renewable Energy, Department of 1. Standards and Procedures for Department addressed as described Energy. Conducting and Administering a above, the Department concludes that ACTION: Public notice of an interim Certification System the CSA International Motor Efficiency determination and solicitation of 2. Independence 3. Operation of a Certification System in a Verification Service Program comments. satisfactorily meets the criteria in 10 Highly Competent Manner CFR 431.27. SUMMARY: Today’s action announces the a. General Operating Requirements (ISO/ IEC Guide 65) Therefore, the Department’s interim Department of Energy’s interim b. Guidelines for Corrective Action in the determination is, as of today’s Federal determination classifying the Event of Misapplication of a Mark of Register notice, to classify the CSA Underwriters Laboratories Inc. Energy Conformity (ISO/IEC Guide 27) International Motor Efficiency Verification Service Program for Electric c. General Rules for a Model Third-Party Verification Service Program as Motors as a nationally recognized Certification System for Products (ISO/ nationally recognized in the United certification program in the United IEC Guide 28) States for the purposes of section 345(c) States for the purposes of section 345(c) d. General Requirements for the of the Energy Policy and Conservation Competence of Testing Laboratories of EPCA. In the event that a final (ISO/IEC Guide 25) determination recognizes the CSA Act. The Department solicits comments, 4. Expertise in IEEE 112–1996 Test Method International Motor Efficiency data and information with respect to its B and CSA C390–93 Test Method (1) Verification Service Program as a interim determination prior to issuing a 5. Sampling Criteria and Procedures for nationally recognized certification final determination. Selecting an Electric Motor for Energy program pursuant to the criteria in 10 DATES: Written comments, data and Efficiency Testing CFR 431.27, and the Program thereafter information, as a signed original with an C. Other Matters fails to meet the criteria for recognition, electronic copy, must be received at the III. Conclusion A. Interim Determination the Department can withdraw its Department of Energy by August 5, B. Future Proceedings recognition after following the 2002. procedural requirements in 10 CFR ADDRESSES: Comments, data and I. Introduction 431.28(g). information should be labeled ‘‘Interim A copy of Underwriters Laboratories B. Future Proceedings Determination Concerning the Inc.’s Petition, ‘‘Classification in Underwriters Laboratories Inc. Petition Accordance with 10 CFR 431.27,’’ (UL Pursuant to 10 CFR 431.28(d), the for Recognition as a Nationally Department will notify CSA Petition or the Petition) was published Recognized Certification Program for in the Federal Register, on October 3, International in writing of this interim Electric Motor Efficiency,’’ and determination. Today’s Federal Register 2001. 66 FR 50355. The Petition submitted to: Ms. Brenda Edwards- consisted of a letter from Underwriters notice solicits comments, data and Jones, Office of Building Research and information concerning the Laboratories Inc. (UL) to the Standards, EE–41, U.S. Department of Department, narrative statements on five Department’s interim determination to Energy, 1000 Independence Avenue, classify the CSA International Motor subject areas, and supporting SW., Washington, DC 20585–0121. documentation. At the same time, the Efficiency Verification Service Program Telephone: (202) 586–2945; Telefax: as nationally recognized in the United Department of Energy (Department) (202) 586–4617. Also, a copy of such solicited comments, data, and States. After review of information comments should be submitted to Ms. submitted concerning the interim information as to whether UL’s Petition Jodine E. Smyth, Senior Coordinator, should be granted. The Department determination, the Department will Global Accreditation Services, publish in the Federal Register an received two comments. The Underwriters Laboratories Inc., 333 Department also conducted an announcement of its final Pfingsten Road, Northbrook, IL 60062. determination. See 10 CFR 431.28(e). independent investigation concerning Telephone: (847) 272–8800, ext. 42418; the UL Petition pursuant to 10 CFR Issued in Washington, DC, on June 28, or Telefax (847) 509–6321. 431.28(f). 2002. FOR FURTHER INFORMATION CONTACT: The supporting documents that Douglas L. Faulkner, James Raba, U.S. Department of accompanied the Petition, as well as the Principal Deputy Assistant Secretary, Energy Energy, Office of Energy Efficiency and material UL subsequently submitted to Efficiency and Renewable Energy. Renewable Energy, Mail Station EE–41, the Department in support of UL’s [FR Doc. 02–16819 Filed 7–3–02; 8:45 am] 1000 Independence Avenue, SW., Petition, are available in the Freedom of BILLING CODE 6450–01–P Washington, DC 20585–0121. Information Reading Room, U.S.
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Department of Energy, Forrestal set forth the criteria and procedures for II. Discussion Building, Room 1E–190, 1000 national recognition of an energy A. General Independence Avenue, SW, efficiency certification program for Washington, DC 20585–0101, electric motors by the Department of Sections 431.27(b)(1) and (c)(1) of 10 Telephone (202) 586–3142, between the Energy. CFR part 431 set forth criteria and hours of 9:00 a.m. and 4:00 p.m., guidelines for the standards and For a certification program to be Monday through Friday, except Federal procedures for conducting and holidays. Additional information about classified by the Department as being administering a certification system and UL’s Energy Verification Service (UL nationally recognized, the program for granting a certificate of conformity. EVS Program or Program) and its must: (1) Have satisfactory standards As such, a certification program must Petition to be a nationally recognized and procedures for conducting and have satisfactory standards and certification program for electric motor administering a certification system, procedures for conducting and efficiency can be obtained on the World and for granting a certificate of administering a certification system, Wide Web at http://www.eren.doe.gov/ conformity; (2) be independent; (3) be including periodic follow up activities buildings/codes_standards/rules/ qualified to operate in a highly to assure that basic models of electric index.htm, or from Ms. Jodine E. Smyth, competent manner; and (4) be expert in motors continue to conform to the Senior Coordinator, Global the test procedures and methodologies efficiency levels for which they were Accreditation Services, Underwriters in IEEE Standard 112–1996 Test Method certified and for granting a certificate of Laboratories Inc., 333 Pfingsten Road, B and CSA Standard C390–93 Test conformity. ISO/IEC Guide 65 Northbrook, IL 60062, or Telephone: Method (1), or similar procedures and (discussed in 10 CFR 431.27(c)(3) and (847) 272–8800, ext. 42418; or Telefax methodologies for determining the also below) sets forth the general requirements intended to ensure a (847) 509–6321, or electronic mail at energy efficiency of electric motors; and certification program is operated in a [email protected]. (5) have satisfactory criteria and The final rule for ‘‘Test Procedures, consistent and reliable manner. These procedures for selecting and sampling Labeling, and Certification requirements address: (1) Impartiality; electric motors for energy efficiency Requirements for Electric Motors,’’ was (2) sufficient personnel having the published in the Federal Register on testing. 10 CFR 431.27(b). necessary education, training, technical October 5, 1999. 64 FR 54141. It is B. Background knowledge and experience; (3) relevant codified in 10 CFR Part 431 in Subparts procedures for sampling, testing and A, B, E and G. It can also be obtained Pursuant to 10 CFR 431.28, the inspecting the product, and the means from the Office of Building Research Department is required to publish the necessary to evaluate conformance by a and Standards, Office of Energy UL Petition in the Federal Register in manufacturer with those standards; (4) Efficiency and Renewable Energy, EE– order to solicit comments, data and surveillance and periodic audits to 41, U.S. Department of Energy, 1000 information on whether the Petition ensure continued conformance with the Independence Avenue, SW, should be granted. UL may then applicable standards; (5) subcontracting Washington, DC 20585–0121, or respond in writing to any comments work, such as testing, with proper Telephone 202–586–9127, or on the received. After review of the Petition, arrangements to ensure competence, World Wide Web at http:// other applicable documents, including impartiality, and compliance with the www.eren.doe.gov/buildings/ public comments and facts found applicable standards; (6) procedures to _ control records, documents and data, codes standards/rules/motors/ through investigation, the Department is index.htm. including review and approval by required to issue an interim appropriately authorized personnel; and A. Authority determination and notify UL in writing (7) control over use and display of Part C of Title III of the Energy Policy of that interim determination. Also, the certificates and marks of conformity. and Conservation Act (EPCA) contains Department is required to publish its Sections 431.27(b)(2) and (c)(2) of 10 energy conservation requirements for interim determination in the Federal CFR part 431 set forth criteria and electric motors, including requirements Register and solicit comments, data and guidelines for independence. A for test procedures, energy efficiency information with respect to the interim certification program must be standards, and compliance certification determination. After review of independent of electric motor (42 U.S.C. 6311–6316). Section 345(c) of comments and information that is manufacturers, importers, distributors, EPCA directs the Secretary of Energy to submitted, the Department is required to private labelers or vendors. It cannot be require motor manufacturers ‘‘to certify, publish in the Federal Register an affiliated with, have financial ties with, through an independent testing or announcement of its final determination be controlled by, or be under common certification program nationally on the Petition. See 10 CFR 431.28(a)- control with any such entity. Further, it recognized in the United States, that (f). should disclose any relationship it [each electric motor subject to EPCA believes might appear to create a efficiency standards] meets the The Department received comments conflict of interest. ISO/IEC Guide 65 applicable standard.’’ 42 U.S.C. 6316(c). on the UL Petition from Advanced sets forth requirements for a Regulations to implement this EPCA Energy, dated October 12, 2001, and certification program to be impartial and directive, with respect to certification Emerson Motor Company, dated have a documented structure that programs, are codified in 10 CFR part October 15, 2001. Advanced Energy is safeguards impartiality. For example, 431 at sections 431.123, Compliance an independent motor testing facility each decision on certification is made Certification, 431.27, Department of and Emerson is a manufacturer of by a person(s) different from those who Energy recognition of nationally electric motors. In general, neither of carried out the evaluation or actual recognized certification programs, and these companies believes Underwriters testing of the motor. Its policies and 431.28, Procedures for recognition and Laboratories Inc. to be qualified to test procedures must distinguish between withdrawal of recognition of and certify electric motors for energy product certification and other accreditation bodies and certification efficiency for the purposes of section activities, its certification process must programs. Sections 431.27 and 431.28 345(c) of EPCA. be free from any commercial, financial
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and other pressures that might influence materials for the correct performance of properly documented, well established decisions, and it must have a committee tests, and that the equipment is properly and maintained according to the structure where members are chosen to maintained and calibrated; (7) test aforementioned ISO/IEC Guide 65 provide a balance of affected interests. equipment that is calibrated and criteria. The Department’s letter to UL, Sections 431.27(b)(3) and (c)(3) of 10 verified prior to operation, and there is dated June 12, 2001, requested copies of CFR part 431 set forth criteria and traceability to national standards of the specific documents that have been guidelines requiring that a certification measurement; (8) documented approved by appropriately authorized organization must be qualified to instructions for the use and operation of UL personnel, and are used as the operate a certification system in a highly equipment, manuals, and applicable test standard operating procedures for the competent manner. Of particular procedures; (9) retention of testing UL EVS Program as it pertains to relevance is documentary evidence that records with sufficient information to electric motors. establishes experience in the permit repetition of a test; and (10) UL’s letter to the Department, dated application of guidelines contained in where a laboratory is subcontracted to July 2, 2001, asserts that procedures International Standards Organization/ conduct testing, that laboratory which demonstrate compliance with International Electrotechnical complies with the requirements sections 4.3, 4.8, 5 and 13 of ISO/IEC Commission (ISO/IEC) Guide 65: 1996, contained in ISO/IEC Guide 25 and is Guide 65 are contained in UL’s General requirements for bodies competent to perform the applicable Conformity Assessment Manual, the operating product certification systems, testing activities. An example of a ‘‘sub- Energy Verification Service Manual ISO/IEC Guide 27: 1983, Guidelines for contracted’’ laboratory would be a (EVS Manual), and the Client Interactive corrective action to be taken by a manufacturer’s laboratory that tests Programs Manual. Copies were certification body in the event of either motors for energy efficiency under the submitted to the Department during its misapplication of its mark of conformity UL EVS Program. investigative process. UL’s letter, dated to a product, or products which bear the Also, where 10 CFR 431.27(b)(4) July 31, 2001, conveyed a copy of its mark of the certification body being requires a certification program to have Motor Efficiency Guide, 2001, which found to subject persons or property to satisfactory criteria and procedures for outlines the criteria UL uses to evaluate risk, ISO/IEC Guide 28: 1982, General the sampling and selection of electric motor efficiency in the United States. rules for a model third-party motors, likewise, ISO/IEC Guide 25 The UL Conformity Assessment certification system for products, as well requires the use of documented Manual and Client Interactive Programs as experience in overseeing compliance sampling procedures and appropriate Manual establish general operating with the guidelines contained in the techniques to select samples. procedures that form a basis for UL ISO/IEC Guide 25: 1990, General certification programs, including the requirements for the competence of B. Application of Evaluation Criteria certification program for electric motors. calibration and testing laboratories. 1. Standards and Procedures for The Department finds that ISO/IEC Sections 431.27(b)(4) and (c)(4) of 10 Conducting and Administering a Guide 65 and the UL Conformity CFR part 431 set forth criteria and Certification System Assessment and Client Interactive guidelines requiring that a certification Programs Manuals are consistent with program must be expert in the content Sections 431.27(b)(1) and (c)(1) of 10 each other in that they address, for and application of the test procedures CFR 431, and ISO/IEC Guide 65, set example: (1) Steps necessary to evaluate and methodologies in IEEE Standard forth criteria and guidelines for the conformance with relevant product 112–1996 Test Method B and CSA standards and procedures to be used in standards, such as energy efficiency Standard C390–93 Test Method (1). Of administering a certification system and standards for electric motors; (2) particular relevance would be granting a certificate of conformity. competence of persons carrying out documentary evidence that establishes In Attachment 1 to the UL Petition, testing; (3) documented procedures for experience in the application of entitled ‘‘431.27(c)(1) Standards and granting, maintaining and withdrawing guidelines contained in the ISO/IEC Operating Procedures,’’ it is stated that certification; (4) control of Guide 25. ‘‘Underwriters Laboratories Inc. product documentation; and (5) surveillance to ISO/IEC Guide 25 addresses general safety certification program is an ISO assure continued conformity with requirements for establishing quality Guide 65 compliant program’’ and that standards, such as energy efficiency systems in laboratories and for ‘‘UL’s Energy Verification utilizes the standards for motors. The Department recognizing their competence to carry same operation manuals as UL’s product understands that these manuals are used out specified tests. In part, these safety certification services with minor in conjunction with the UL EVS Manual requirements address: (1) Organization variations that are detailed in the UL and Motor Efficiency Guide. The and management that are free from Energy Verification Manual.’’ Conformity Assessment Manual and commercial, financial, and other Advanced Energy’s comments, dated Client Interactive Programs Manual are pressures which might adversely affect October 12, 2001, and Emerson Motor further addressed in section II.3.c. of quality of work; (2) independence of Company’s comments, dated October today’s Federal Register Notice. judgment and integrity; (3) supervision 15, 2001, generally assert that the UL The EVS Manual outlines the by persons familiar with the applicable EVS Program is not an ISO/IEC Guide standard criteria and operating test procedures; (4) a quality system, 65 compliant program. procedures by which UL evaluates and and manual which contains procedures The Department’s investigation found verifies the energy efficiency of various for control and maintenance of that the UL procedures for operating a types of products. In the case of electric documents, and procedures for periodic certification system, provided as motors, the EVS Manual refers to the audit and review; (5) sufficient attachments to the Petition, were very energy efficiency test procedures found personnel, having the necessary general in nature and could be in 10 CFR 431.27. Its contents include education, training, technical satisfactorily applied to any UL efficiency verification procedures, knowledge and experience for their certification program. This raised the documentation, sample selection, assigned functions, and that training of issue as to whether the specific product testing, test facility evaluation, its personnel is kept up-to-date; (6) all standards and procedures by which the product construction evaluation, and items of equipment and reference UL EVS Program operates are adequate, manufacturers ongoing and follow-up
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testing. The Motor Efficiency Guide In Attachment 2 to the UL Petition, forth in ISO/IEC Guide 65. Furthermore, outlines the criteria that UL utilizes to entitled ‘‘Independence,’’ UL asserts the UL EVS Program meets the ISO/IEC evaluate motor efficiency in accordance that it is independent and impartial of Guide 25 requirements for organization with the energy efficiency regulations in any individual electric motor supplier and management to ensure confidence the United States and Canada. It is used or purchaser and is free from any other that its independence of judgement and in combination with the EVS Manual for conflict of interest. A notarized integrity are maintained at all times. conducting evaluations in accordance Statement of Independence signed by an 3. Operation of a Certification System in with UL’s EVS Program. It contains a officer of the corporation was submitted a Highly Competent Manner tutorial on motor efficiency, information in support of its assertion. on correlation of stray load loss and the The Department’s June 12, 2001, letter Sections 431.27(b)(3) and (c)(3) of 10 basis of acceptability for motor to UL requested additional documents CFR 431 require that the petitioner efficiency, sample selection, assessment concerning the policies or procedures demonstrate that its certification of a testing facility, test record data that distinguish (a) a direct or indirect program operates in a highly competent sheets, and guides the UL representative relationship with a motor manufacturer, manner by establishing its experience in that conducts a facility assessment and importer, or private labeler that is in a the application of certain ISO/IEC witness testing. For example, the section situation where UL both provides safety Guides, including ISO/IEC Guides 65, entitled ‘‘Assessment of Client Facility,’’ certification services and an EVS for 27 and 28, as well as experience in lists areas of a manufacturer’s testing such entity’s motors, and (b) where a overseeing compliance with the facility that UL would investigate under manufacturer’s representative serves, for guidelines in ISO/IEC Guide 25. its certification program. These include example, on UL Standards Technical In Attachment 3 to the UL Petition, investigation of a manufacturer’s quality Panel UL 1004, Electric Motors. Such ‘‘Testing Experience and Expertise,’’ UL program system as to whether (1) an ISO relationships need more explanation as asserts that it has been conducting 9001 or ISO 9002 quality assurance to why each would not create or appear product safety evaluations for 105 years, program is in place, (2) proficiency of to create a conflict of interest, and that in 1999 alone it conducted personnel is witnessed, (3) the motor compromise UL’s independence, or bias more than 94,300 product evaluations. testing laboratory environment is information presented to UL for the As to further experience in operating a properly maintained, (4) testing purposes of compliance with 10 CFR certification system and application of equipment is properly maintained and part 431. guidelines contained in ISO/IEC Guide calibrated, and (5) testing of the energy UL’s letter to the Department, dated 65, UL states in Attachment 3, efficiency of electric motors is July 2, 2001, asserts that UL is ‘‘Summary of UL’s Accreditations,’’ that conducted in accordance with 10 CFR ‘‘independent and impartial of any it is involved in more than 80 431.23. individual supplier or purchaser and is accreditation programs that are involved Also, UL submitted the revised Motor free from any other conflict of interest,’’ with the evaluation and testing of Efficiency Guide ULS–02194–ZWAA, and that ‘‘UL has no stockholders, i.e., products for public safety. It states that ‘‘Test Record Data Sheet’’ pages 1 no direct or indirect relationship with its competence as a product certification through 14, and a page ULS–02194- manufacturers, importers or private organization has been, for the most part, ZWAA ‘‘Appendix D,’’ page 0001, labelers.’’ UL explains that it is established under the criteria in ISO/IEC ‘‘Manufacturer’s Test Equipment.’’ The incorporated as a not-for-profit Guides 25 and 65. Copies of UL’s Department understands that this organization in the State of Delaware, accreditation documents from the revised guide supersedes the above- and its policy regarding conflict of American National Standards Institute referenced earlier version and is used in interest is both addressed as a condition (ANSI) and the Standards Council of combination with the Energy for employment and in its code of Canada (SCC), and recognition as a Verification Services Manual for ethics. Also, chapter 2 of the UL ‘‘Client Nationally Recognized Testing conducting evaluations in accordance Interactive Programs Manual’’ sets forth Laboratory from the Occupational Safety with UL’s EVS Program. Further, UL procedures whereby each decision on and Health Administration were provided the Department a copy of UL’s certification is made by a person or attached to the UL Petition. persons different from those who specific standard operating procedures a. General Operating Requirements carried out a motor efficiency which are utilized as part of the UL EVS (ISO/IEC Guide 65) Program. These included data sheets evaluation. Furthermore, UL explains that describe the test methodology, that its standards development process Both Advanced Energy and Emerson follow-up inspections to verify electric for safety matters is organizationally Motor Company state that ‘‘UL has a motor efficiency, and an exemplary separated from its certification solid reputation in testing services and ‘‘Certificate of Compliance.’’ operations. Thus, a manufacturer’s quality assurance for safety programs,’’ The Department has examined UL’s representative who participates in a UL and is capable of administering safety Petition and all other documents Technical Panel as part of the standards programs because they are ISO/IEC described above, and concludes that development process only provides Guide 65 compliant, as demonstrated by these documents provide evidence of technical input to standards and has no the ANSI accreditation. However, both satisfactory standards and procedures influence over certification functions, Advanced Energy and Emerson Motor for UL to conduct its EVS Program to such as the EVS Program for Electric Company ‘‘find no evidence of this satisfy the requirements set forth in 10 Motors. being true with respect to UL’s Energy CFR 431.27(b)(1) and (c)(1), and the The Department has examined the Verification Program.’’ Advanced guidelines contained in ISO/IEC Guide above documents and concludes that Energy’s letter, dated October 12, 2001, 65. they provide sufficient evidence that the asserts that UL’s EVS Program has the UL EVS Program meets the potential to confuse customers in the 2. Independence requirements for independence which marketplace and unduly burden motor Sections 431.27(b)(2) and (c)(2) of 10 are set forth in 10 CFR 431.27(b)(2) manufacturers, because UL would visit CFR part 431, and ISO/IEC Guide 65, set and(c)(2), and the guidelines for each motor manufacturer’s facilities forth criteria and guidelines for objectively and impartiality of technical twice per year, require testing of an impartiality. persons and committees which are set unspecified number of sample motors,
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and require inspection of the motor in the product certification process. Efficiency (Mark or UL Mark) on an manufacturing processes. Advanced UL’s July 2nd letter conveyed resumes electric motor, such as the use of a Energy and Emerson Motor Company of certain staff involved in the EVS counterfeit UL Mark. Under ISO/IEC state that the UL EVS Program is not Program. Guide 27, the certification program sufficient for the purposes of EPCA on As to any undue burden on a would then be required to have strong motor efficiency, and that it conflicts manufacturer caused by UL’s biannual corrective procedures in place. Such with the intent of EPCA and 10 CFR part inspections of a motor facility, the corrective measures would depend 431. Department understands that UL’s upon the nature of the misuse and the In response to the above comments surveillance program consists of two desire by the certification program to from Advanced Energy and Emerson random unannounced audits of the protect the integrity of its mark. Motor Company, UL’s letter to the manufacturer’s facilities, and such Department, dated October 22, 2001, audits can be conducted separately or in The Department has examined the UL asserts that Advanced Energy’s view of conjunction with its motor safety Conformity Assessment Manual and the UL certification program is based investigations, thereby lessening the finds that it contains procedures for upon limited exposure to UL’s technical compliance burden on a manufacturer. reporting the misuse of any UL Mark expertise and other portions of the EVS Therefore, the Department believes that used to identify certified products, such Program related to electric motors. Also, the UL EVS Program does not present as any unauthorized or counterfeit use UL believes that Emerson Motor any undue burden on a manufacturer. of a UL Registered mark. The Company’s concerns are addressed As to the above-referenced comments Department concludes that the UL under 10 CFR part 431 concerning the from Advanced Energy and Emerson Conformity Assessment Manual use of a certification program. Motor Company concerning the UL EVS satisfactorily follows the guidelines for The Department examined the above Program not meeting the requirements corrective action to be taken by a UL accreditations and found that the for a ‘‘certification program’’ in section certification organization in the event of majority of them concerned product 345(c) of EPCA and in 10 CFR misapplication of a mark of conformity safety certification and there was no 431.123(a)(1), the Department finds no to an electric motor set forth in 10 CFR explicit reference to the certification of facts or convincing arguments that 431.27(c)(3) and ISO/IEC Guide 27. energy efficiency for electric motors. support the assertions of Advanced c. General Rules for a Model Third-Party The Department’s June 12, 2001, letter Energy or Emerson Motor Company that to UL requested evidence as to whether the UL certification program is ‘‘not Certification System for Products (ISO/ the UL EVS Program for electric motors sufficient’’ or ‘‘conflicts with the intent’’ IEC Guide 28) is, or will become, accredited by another of EPCA, or ‘‘would place additional ISO/IEC Guide 28 addresses organization, such as ANSI. Also, the burden on manufacturers.’’ Such issues minimum guidelines for a third-party Department’s letter requested evidence involving the merits and use of an certification system in determining of the technical qualifications and accredited laboratory or a certification conformity with product standards experience held by UL personnel program were argued at length under through sample selection, initial testing directly involved with the UL EVS section II.C.2. and 3. of the Preamble to and assessment of a factory quality Program, such as technical evaluations the Final Rule for Electric Motors, 64 FR management system, follow-up and decisions concerning critical motor 54124–26 (October 5, 1999) and need surveillance, subsequent testing of construction features, performance, and not be repeated here. The Department samples from the factory, and the use of testing for energy efficiency using IEEE continues to believe that use of a a mark of conformity. 112–1996 Test Method B and CSA certification program, such as the UL C390–93 Test Method (1). EVS Program, where it meets the Consistent with the above ISO/IEC Thereafter, the Department received a requirements set forth in 10 CFR Guide 28 guidelines, Attachment 1 to letter, dated June 26, 2001, from ANSI 431.27(a) will provide adequate the UL Petition, entitled ‘‘431.27(c)(1) which affirms that the UL EVS Program assurance of compliance with EPCA’s Standards and Operating Procedures,’’ is covered under the scope of the ANSI energy efficiency requirements. Because describes the UL certification of motors accreditation for Electrical and the assertions of Advanced Energy and under its EVS Program as being based Electronic Products, Processes, Systems, Emerson Motor Company are merely upon: (1) Satisfactory evaluation and and Services in accordance with ISO/ arguments against the wisdom of the testing to the requirements of the IEC Guide 65. Also in response to the final rule and of the Departments applicable standard, which in this case Department’s June 12 letter, UL’s letter, regulations themselves, and are not is under 10 CFR 431.23; (2) continued dated July 2, 2001, asserts that UL has directed at the UL Petition, they are surveillance at the manufacturing documented procedures to ensure that rejected. location; (3) initial motor evaluation qualified personnel review the that consists of an examination of motor evaluation of motors for compliance b. Guidelines for Corrective Action in efficiency test data, test facilities, and with energy efficiency requirements, the Event of Misapplication of a Mark of motor design and construction; (4) and written instructions that set forth Conformity (ISO/IEC Guide 27) selection of samples and witness testing the duties and responsibilities of such ISO/IEC Guide 27 identifies by a UL representative; (5) where an personnel. UL staff undergoes continual procedures which a certification electric motor is found to be in on-the-job training and is evaluated program should consider in response to compliance, authorization to apply a through a documented performance a reported misuse of its registered mark mark of conformity; and (6) procedures appraisal process. UL has supervisory of conformity. According to paragraph for withdrawal or cancellation of a mark and review staff with the necessary 1.1 (a) of ISO/IEC Guide 27, ‘‘misuse’’ of conformity if an electric motor is education, training, skill, abilities and may take a variety of forms, such as a found in non-conformance. Also, UL experience for evaluating motors for mark of conformity appearing on a non- submitted its Energy Verification compliance with energy efficiency certified product. The Department Service Manual as evidence that its EVS requirements, and its management construes this to mean the unauthorized Program for electric motors follows the structure provides for the supervision of use by a manufacturer or private labeler guidelines contained in ISO/IEC Guide reviewers and other personnel involved of the UL Verification Mark for Energy 28.
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In view of ISO/IEC Guide 28, the facilities and are subject to review and with UL’s CTDP.’’ According to the Department examined the UL EVS audit by UL. Furthermore, the ‘‘Client January 24 letter, UL has determined Manual that outlines the criteria by Test Data Program’’ establishes policies that Guide 25 as written ‘‘can not solely which UL performs third-party energy and procedures consistent with ISO/IEC be the basis on which it accepts efficiency certifications for various Guide 25 which address operating a responsibility for the test data generated products, including electric motors. In laboratory quality system, testing from a manufacturer’s laboratories,’’ and sum, the UL EVS Manual contains the equipment, qualification of personnel, as a result, UL’s Client Test Data general operating procedures and test standards and procedures for Program requirements are ‘‘an business document formats applicable testing, training, assessment of a test adaptation of Guide 25, with necessary to UL’s EVS Program, that when utilized facility, program administration, changes made, so that UL has an in conjunction with the procedures and documentation, and issuing a certificate adequate basis for taking responsibility technical document formats in the UL of qualification. The Department for the test data from a manufacturer’s Conformity Assessment Manual and understands that both the Conformity laboratory.’’ For example, even though Motor Efficiency Guide, correspond to Assessment and Client Interactive not required by ISO/IEC Guide 25, UL the ‘‘model’’ procedures and example Programs Manuals are used in requires repeat testing and requires that forms contained in ISO/IEC Guide 28. conjunction with UL’s product-specific the data from that repeat testing The Department finds that, in general, operations manuals, such as the UL correlate with the original test data both ISO/IEC Guide 28, and the UL EVS Energy Verification Service Manual, that generated by the manufacturer. In and Conformity Assessment Manuals applies specific procedures to the addition, UL conducts audits of address: (1) The basic conditions and acceptance of energy efficiency test data manufacturers’ laboratories under the rules for a manufacturer to obtain and for electric motors. Client Test Data Program, whereas ISO/ retain a certificate of conformity or mark The Department has examined the IEC Guide 25 only requires a laboratory of conformity; (2) initial inspection of a contents of these manuals and to audit itself. UL believes such motor factory and a manufacturer’s concludes that they satisfy the additional oversight requirements are quality management system; (3) sample guidelines for conducting a model third- necessary in order for it to accept selection; (4) initial testing; (5) product party certification program at the responsibility for the test data. Further, evaluation; (6) surveillance; (7) national level as applicable under 10 UL asserts that it does not rely solely on identification of conformity in the form CFR 431.27(c)(3) and ISO/IEC Guide 28. a manufacturer’s self-monitoring of of a certificate of conformity or mark of d. General Requirements for the laboratory competence through the conformity; (8) withdrawal of a Competence of Testing Laboratories laboratory’s quality system; rather, UL certificate or mark of conformity by the (ISO/IEC Guide 25) itself ‘‘directly monitors those aspects of certification program; and (9) guidelines laboratory operations that contribute to Third-party certification programs the accuracy of the test data produced.’’ on corrective action for misuse of a must have experience overseeing certificate or mark of conformity. The Thus, UL adds a second level of compliance with the guidelines assurance through audit testing and Department concludes that the UL EVS contained in ISO/IEC Guide 25. ISO/IEC Program satisfies the general guidelines subsequent data correlation. UL’s Guide 25 sets out the general January 24 letter concludes with the for a model third-party certification requirements by which a laboratory system under 10 CFR 431.27(c)(3) and assertion that it has ‘‘demonstrated must operate if it is to be recognized as experience overseeing a laboratory not the guidelines set forth in ISO/IEC competent to carry out specific tests. Guide 28. just to Guide 25 requirements, but to According to Attachment 3 to the UL even more stringent requirements Also, ISO/IEC Guide 28 requires a Petition, ‘‘Summary of UL’s related to transfer of responsibility for certification program operating at a Accreditations,’’ the majority of UL’s test data.’’ national level, such as under section accreditations cover UL as a testing The Department compared ISO/IEC 345(c) of EPCA which requires laboratory and product safety Guide 25 with UL’s CTDP as it would manufacturers to certify compliance certification organization. Although apply to a manufacturer’s motor through a ‘‘nationally recognized’’ each accreditor to a certain extent efficiency testing laboratory under a certification program, to have a suitable establishes its own criteria, for the most certification program and found them to organizational structure and utilize part, two sets of criteria are utilized for be consistent with each other. Under personnel, equipment, and operating evaluating the competence of a testing UL’s CTDP, a motor manufacturer’s procedures that comply with the criteria laboratory and product certification laboratory must, in sum, have a quality for a testing laboratory in ISO/IEC Guide organization: ISO/IEC Guide 25, General program that is subject to assessment 25. Consistent with these guidelines, the Requirements for the Competence of and reassessment, have physical UL Conformity Assessment Manual and Calibration and Testing Laboratories resources, equipment, qualified Client Interactive Programs Manual and ISO/IEC Guide 65 General personnel and procedures that conform provide general policies, practices and Requirements for Bodies Operating to national and international procedures that govern UL’s conformity Product Certification Systems. UL’s accreditation criteria, and have test data assessment services. These include written policies and associated that is reviewed and subject to a regular submitting a product for investigation, operating procedures were designed audit. The Department found, for conduct of the investigation, witnessed using the criteria of these two guides. example: test data procedures, compliance UL’s letter to the Department, dated • Where ISO/IEC Guide 25 sets forth management, issuance of the UL Mark, January 24, 2002, asserts that UL has requirements for organization and and follow-up services. The Department ‘‘significant experience understanding, management of a testing laboratory to finds that the ‘‘Client Test Data adapting, documenting and applying the ensure proper supervision and integrity Program,’’ contained in the Client requirements of Guide 25 to of data, similarly, the UL CTDP requires Interactive Programs Manual, manufacturers’ laboratories as a testing laboratory to have procedures particularly addresses the UL EVS evidenced by the [Client Test Data and policies in place to assure accuracy Program, whereby tests for energy Program] CTDP documentation and and correctness of the performance of efficiency are conducted at client overseeing compliance of manufacturers the tests, test data developed, and
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results reported, as well as qualified accredited. Nevertheless, the equipment, test methods, sampling, and staff to oversee testing and ensure Department believes that the quality records. proper documentation. program to which a motor efficiency In Attachment 4 to the UL Petition • Where ISO/IEC Guide 25 requires a testing laboratory adheres under a entitled, ‘‘431.27(c)(4) Expertise in manufacturer’s testing laboratory to certification program that is ‘‘nationally Motor Test Procedures,’’ it is stated that have a quality system with documented recognized’’ for the purposes of EPCA ‘‘UL has been providing Energy policies and procedures, such as for the should be inherently stringent because Verification certification services since organization and operation of a testing its efficiency measurements are the 1995,’’ and that ‘‘UL has evaluated laboratory, traceability of basis for compliance determinations for motors in sizes ranging from 1 hp to 200 measurements, calibration of many motors. Therefore, the Department hp using the standards IEEE 112 Test equipment, test procedures used, believes that a testing facility operated Method B or CSA C390.’’ According to procedures for corrective actions and or observed by a certification program the Petition, UL publishes a Directory of audits, likewise, the UL CTDP requires should follow the guidelines in ISO/IEC Electric, Gas Fired, and Oil-Fired a manufacturer’s testing laboratory to Guide 25: 1990. The Department Equipment Verified for Energy have procedures and policies that assure understands that, in general, the Efficiency 1999, which includes electric accuracy and correctness of the evaluation of a motor testing laboratory motors, and asserts that each member of performance of a test, test data under ISO/IEC Guide 25 includes an on- its engineering staff has at least four- developed, and results reported, and site assessment, proficiency testing, an year Bachelor of Science degree in oversight of sampling, testing, data audit of a laboratory’s policies and engineering. Also, UL submitted to the recording and periodic audits. operational procedures, review of staff Department a copy of its Conformity • Where ISO/IEC Guide 25 requires a qualifications, checks of proper Assessment Manual, EVSs Manual, manufacturer’s testing laboratory to maintenance and calibration of test Client Interactive Programs Manual, and have sufficient personnel having the equipment, and records review. Motor Efficiency Guide as evidence of necessary education, training, technical Likewise, evaluation of a motor testing its expertise in electric motor test knowledge and experience, the UL laboratory under the UL EVS includes procedures. CTDP requires similar qualifications of evaluation of the manufacturer’s testing The Department’s letter to UL, dated testing laboratory personnel. facility, control and maintenance and June 12, 2001, requested evidence as to • Where ISO/IEC Guide 25 requires calibration of test equipment, factory the nature and extent of training that the proper environment and equipment audits for continued compliance, current staff actually involved with the for performance of testing, and that such document control, periodic audits of the EVS Program regularly undergoes to equipment is properly maintained and operational and technical consistency of maintain proficiency with the calibrated, the UL CTDP requires the the program, control of non- evaluation of motor designs and proper environment for testing, and conformances, staff training, and construction, and the practice of energy requires that equipment is fully witness testing. efficiency testing. operational, calibrated and traceable to The Department believes that the goal UL’s letter, dated July 2, 2001, asserts nationally recognized standards of of a third-party certification program is that UL has documented procedures to measurement. to provide assurance that test results are ensure that qualified personnel review • Where ISO/IEC Guide 25 requires accurate, valid, and capable of being the evaluation of motors for compliance the testing laboratory to maintain a replicated. Tests must be performed with energy efficiency requirements. record system of original observations, with a degree of oversight so that the These include the written instructions calculations, and derived data sufficient results are not influenced by marketing for the duties and responsibilities of to permit repetition of a test, similarly, and production concerns. The personnel with respect to the evaluation the UL CTDP requires data recording Department believes that the UL EVS of motor efficiency investigations, as and test reports, and other Program essentially follows the ISO/IEC well as qualification requirements to documentation of initial assessments 25 Guidelines. assure that its personnel are qualified in and reassessments and verification. the scientific disciplines related to 4. Expertise in IEEE Standard 112–1996 Also, the UL CTDP requires that energy efficiency. Further, UL asserts Test Method B and CSA Standard C390– reference standards and test procedures that its staff undergoes continual, on- 93 Test Method (1) used by the testing laboratory are the-job training and each person is current. Section 431.27(b)(4) of 10 CFR part evaluated through a documented • Both ISO/IEC Guide 25 and the UL 431 set forth evaluation criteria and performance appraisal process. UL has CTDP require test reports or test guidelines whereby personnel supervisors as review staff with the certificates that contain similar conducting a certification program necessary education, training, skill, information. should be expert and experienced in the abilities and experience for evaluating In view of these comparisons, the content and application of IEEE motors for compliance with energy Department believes that UL’s EVS Standard 112–1996 Test Method B and efficiency requirements. Also, UL has Program satisfies the requirement of 10 CSA Standard C390–93 Test Method (1), developed its own Motor Efficiency CFR 431.27(c)(3) for documentary or similar procedures and Guide as a reference for staff involved in evidence that establishes experience in methodologies for determining the conducting motor efficiency operating a certification system and energy efficiency of electric motors. The evaluations. UL’s management structure overseeing compliance with the program must have satisfactory criteria provides for the supervision of guidelines for competence contained in and procedures for the selection and reviewers and other personnel involved ISO/IEC Guide 25 to test electric motors sampling of electric motors tested for in the product certification process. for energy efficiency. energy efficiency, and provide UL’s letter, dated September 20, 2001, Also, 10 CFR 431.27 does not require documents that establish experience in contains the names of UL technical staff a certification program to actually applying the guidelines for confidence involved with the EVS Program, operate its own motor testing laboratory, in testing laboratories contained in ISO/ indicates their experience with CSA nor is a laboratory operated or observed IEC Guide 25. Such guidelines address C390–93 and IEEE 112–1996, and by a certification program required to be quality audits and reviews, personnel, contains a resume for each.
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Furthermore, UL’s letter dated other portions of the UL’s EVS Program, electric motors tested for energy September 20, 2001, asserts that the test including staff with specific technical efficiency. Based on the National procedures in ‘‘CSA C390–93 method capability related to motor testing, were Institute of Standards and Technology B’’ [sic] are similar to those procedures not completed at that time, nor had report, NISTIR 6092, ‘‘Analysis of already in place under other CSA Advanced Energy been exposed to the Proposals for Compliance and International Standards as well as UL ‘‘full expertise’’ within the UL Program. Enforcement Testing Under the New Standards, and that the data and UL’s letter to the Department, dated Part 431: Title 10, Code of Federal information recorded to verify energy February 21, 2002, asserts that its Regulations,’’ January 1998, which efficiency is some of the same data and experience in standards development, analyzed various criteria and sampling information required under the testing it testing, and safety evaluation of motors plans proposed for establishing conducts on a routine basis and which according to the requirements of UL and compliance with the nominal full-load follows UL Standard 1004, ‘‘Electric other U.S. and International standards efficiency levels prescribed by EPCA, 42 Motors,’’ UL Standard 2111, and the corresponding data acquisition U.S.C. 6313(b)(1), the Department ‘‘Overheating Protection for Motors,’’ necessary to accomplish these determined that ‘‘the NEMA proposal UL 547, ‘‘Thermally Protected Motors,’’ endeavors, is ‘‘equivalent to and for compliance testing provides and CSA C22.2 No. 77, ‘‘Overheating demonstrative of the indicated UL staff statistically meaningful sampling Protection for Motors,’’ and CSA C22.2 having the necessary proficiency and procedures.’’ Moreover, the NIST No. 100, ‘‘Motors and Generators.’’ UL expertise to conduct energy efficiency analysis was extensive in order to asserts that the data and information evaluations.’’ In sum, the experience determine whether a particular recorded for energy verification testing with CSA C390–93 and IEEE Standard sampling plan would be valid for the is some of the same data and 112 of the five UL staff persons engaged purpose of establishing compliance with information required under the above- in the UL EVS Program ranges from one EPCA motor efficiency levels. Also, referenced test procedures, which it to four years, which is in addition to section 10.5 of ISO/IEC Guide 25: 1990 uses in an automated spreadsheet their four to 13 years experience with requires the use of documented program entitled ‘‘Motor Efficiency test procedures for motor safety. procedures and appropriate statistical Testing Program V3.0,’’ UL copyrighted In the Department’s view, any techniques to select samples. 1994 and 1997, to calculate motor technically qualified person could In Attachment 1 of its Petition, UL efficiency. The September 20 letter from satisfy the criteria for expertise in the describes its sample selection process as UL compares the IEEE 112 and CSA content, application, and methodologies one where representative samples from C390 test procedures with similar of the test procedures pursuant to 10 the manufacturer’s production are procedures in the above ‘‘UL’’ and CFR 431.27(b)(4) if that person: (1) Is selected for use in testing and witnessed ‘‘CSA’’ standards for performance and proficient in the test methodology of by UL engineering staff. According to safety. IEEE Standard 112 Test Method B and the Petition, representative samples are Advanced Energy’s letter, dated CSA C390–93 Test Method (1); (2) is those that, when reviewed as a group, October 12, 2001, expresses concern familiar with the electrical, mechanical can adequately represent a line of with ‘‘the level of ‘expert’ knowledge and environmental capabilities of a similar models that use the same major regarding motor testing.’’ Advanced testing laboratory system, (3) energy consuming components. UL Energy asserts that UL is thorough in the understands how to prepare and mount asserts that the objective in selecting documentation of procedures and a motor for testing, which includes the representative samples is to obtain calibrations of laboratory equipment, connection and operation of the test sufficient confidence that the series of but weak in motor efficiency testing, test equipment, (4) is competent in motors verified meet the applicable data analysis, and in its prescriptive calibrating test equipment; and (5) is energy efficiency standard while at the audit process that does not involve competent with data collection and same time minimize the number of tests motor testing, review of motor test data, analysis. UL’s experience in standards the manufacturer is required to perform. or proficiency testing by a laboratory. development, testing and evaluation of Samples are selected to represent an Emerson Motor Company’s letter, motors to both U.S. and International entire range of motors. Furthermore, as dated October 15, 2001, expresses safety and similar energy efficiency part of a manufacturer’s ongoing concern that UL uses a motor procedures and methodologies provide production testing, UL audits the manufacturer’s testing facilities that sufficient evidence of UL staff having number of samples tested and the have been ‘‘reviewed’’ by a UL staff the necessary proficiency and expertise frequency of testing and test results member, but there is no evidence of the to conduct energy efficiency evaluations which are documented by the staff member’s credentials, knowledge, under ISO/IEC Guide 25. Thus, the manufacturer. The manufacturer is level of training and certification with Department believes that the required to document the test results, regard to motor efficiency testing qualifications of the UL Staff named in which UL audits as part of each follow- laboratories. the above September 20 letter, regular up visit. In response to the above comments additional training, and monitoring by Notwithstanding UL’s above from Advanced Energy and Emerson UL management, satisfy the general assertions, the Department found no Motor Company, UL’s letter, dated requirements for the training, technical evidence that the samples used for a October 22, 2001, asserts that Advanced knowledge, and experience of testing motor manufacturer’s test data was Energy’s view of the UL certification laboratory personnel under 10 CFR selected randomly, that a UL program is based upon limited exposure 431.27(b)(4) and (c)(4). representative participated in the to UL’s technical expertise when both sample selection process or witnessed UL and Advanced Energy were 5. Sampling Criteria and Procedures for any of the initial testing, or that it was exploring a business relationship in the Selecting an Electric Motor for Energy clear that ‘‘two samples’’ were sufficient 1990s. According to UL, a laboratory Efficiency Testing to statistically validate the energy assessment is one part of its Client Test Section 431.27(b)(4) of 10 CFR 431 efficiency of an entire line of electric Data Program under which external requires a certification organization to motors. testing, such as by Advanced Energy, have satisfactory criteria and procedures Subsequently, UL submitted to the would be accepted by UL. However, for the selection and sampling of Department, under cover letter dated
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July 31, 2001, a copy of its Motor IEC Guide 65, Emerson Motor catalogs and other marketing materials Efficiency Guide (Guide), to outline the Company’s comments, dated October according to 10 CFR 431.82(b)(2). The criteria by which UL evaluates motor 15, 2001, object to any requirement to Department believes that display of the efficiency in accordance with energy display a compliance certification UL Mark is a matter between UL and the efficiency regulations. The Department labeling mark, such as the UL Mark, on manufacturer or private labeler. examined the Guide and found that an electric motor either in place of or in appendix D contained a section entitled addition to the required Compliance III. Conclusion ‘‘Sample Selection,’’ Form Page 8 on Certification number supplied by the A. Interim Determination ULS–02194–ZWAA–Appendix–0001, Department of Energy as provided for in which set forth procedures whereby 10 CFR 431.82(a)(1)(ii). Emerson Motor In view of the UL Petition and samples consisting of production units Company asserts that such additional supporting documents, the public are ‘‘randomly selected by UL Staff’’ and marks would add significant financial comments received, the Department’s appeared to satisfy one of the burdens on motor manufacturers and independent investigation, and UL’s Department’s concerns. However, in the confuse the motor purchaser. Further, corrections to its Program described ‘‘Definitions’’ section of the Guide, the Emerson Motor Company asserts that above, the Department concludes that Department found that the definition of the Department of Energy Compliance the UL EVS Program for Electric Motors ‘‘nominal full load efficiency’’ was not Certification number is the only mark satisfactorily meets the criteria in 10 consistent with the definition of allowed. CFR 431.27. ‘‘nominal full load efficiency’’ in 10 Advanced Energy’s comments, dated Therefore, the Department’s interim CFR 431.2, nor did the Guide contain a October 12, 2001, object to the proposed determination is, as of today’s Federal definition of the term ‘‘Sample.’’ Also, UL requirement that a manufacturer Register notice, to classify the UL EVS the ‘‘Basis of Acceptability,’’ on Form display the UL Mark. Advanced Energy Program for Electric Motors as Page 11 of appendix D in the Guide, asserts that there would be an added nationally recognized in the United which provided procedure to calculate financial burden to a manufacturer States for the purposes of section 345(c) a tolerance for ‘‘permitted values of because of being forced to display the of EPCA. In the event that a final energy efficiency’’ using a ‘‘Coefficient UL Mark, with possible confusion to a determination recognizes the UL EVS K’’ and required that the ‘‘actual motor motor purchaser attempting to Program for Electric Motors as a efficiency value will be not less than the distinguish between one motor with a nationally recognized certification associated minimum value,’’ was Compliance Certification number alone program pursuant to the criteria in 10 inconsistent with 10 CFR 431.24, and another motor with both a CFR 431.27, and the Program thereafter ‘‘Determination of efficiency,’’ and 10 Compliance Certification number and fails to meet the criteria for recognition, CFR 431.42, ‘‘Energy conservation the UL mark. the Department can withdraw its standards.’’ Thereafter, UL submitted to Section 431.82(a)(1) of 10 CFR 431 recognition after following the the Department, under cover letters requires a manufacturer or private regulatory procedural requirements in dated January 11 and January 28, 2002, labeler to mark the permanent 10 CFR 431.28(g). a copy of the revised pages in the Guide nameplate of an electric motor clearly that were in question. These included a with the motor’s nominal full load B. Future Proceedings efficiency and a Compliance definition for the term ‘‘sample,’’ Pursuant to 10 CFR 431.28(d), the Certification number supplied by the revised sample selection criteria, Department will notify UL in writing of Department. However, 10 CFR identification of UL’s initial factory this interim determination. Today’s 431.82(a)(3) permits the optional production visit to select the random Federal Register notice solicits display of the encircled lowercase samples, and corrections to the comments, data and information letters ‘‘ee’’ or some comparable ‘‘Statistical Test Method’’ formulas and concerning the Department’s interim designation or logo on either the the ‘‘Basis of Acceptability’’ in order to determination to classify the UL EVS permanent nameplate of an electric be consistent with the applicable Program for Electric Motors as motor, a separate plate, or provisions in 10 CFR 431. nationally recognized in the United decalcomania. The UL Mark falls into The Department concludes that the States. After review of information the ‘‘optional display’’ category and above documents, as corrected by UL, submitted concerning the interim would be comparable to the encircled are consistent with 10 CFR 431.24 and determination, the Department will lowercase letters ‘‘ee.’’ Therefore, 431.42, and satisfy the criteria and publish in the Federal Register an display of the UL Mark would be procedures for the selection and announcement of its final permitted in addition to the labeling sampling of electric motors to be tested determination. See 10 CFR 431.28(e). for energy efficiency under 10 CFR requirements set forth under section 431.27(b)(4). 431.82(a)(1). But, such optional display Issued in Washington, DC, on June 28, is not a replacement mark for the 2002. C. Other Matters motor’s nominal full load efficiency and Douglas L. Faulkner, In a separate matter related to 10 CFR the Compliance Certification number Principal Deputy Assistant Secretary, Energy 431.82, ‘‘Labeling requirements,’’ and supplied by the Department. The Efficiency and Renewable Energy. section 14, ‘‘Use of licenses, certificates optional logo or designation, (such as [FR Doc. 02–16820 Filed 7–3–02; 8:45 am] and marks of conformity,’’ in the ISO/ the UL Mark) may also be used in BILLING CODE 6450–01–P
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Part VI
Department of Education 34 CFR Part 200 Title I—Improving the Academic Achievement of the Disadvantaged; Final Rule
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DEPARTMENT OF EDUCATION made by the NCLB Act. These included • Including in § 200.5(c) the statutory the following: requirement that a State provide 34 CFR Part 200 • Clarifying in § 200.1(b)(2) that assessment results to school districts, RIN 1810–AA92 States have the flexibility to develop schools, and teachers no later than the academic content standards in reading/ beginning of the next school year. This Title I—Improving the Academic language arts and mathematics that requirement starts with the 2002–2003 Achievement of the Disadvantaged cover either each grade specifically or school year. more than one grade. If a State develops • Clarifying in § 200.6 the AGENCY: Office of Elementary and academic content standards that cover requirement that State assessment Secondary Education, Department of more than one grade, the State must systems include all students and Education. have content expectations that indicate provide appropriate accommodations ACTION: Final regulations. to teachers and others the portion of the for students with disabilities and standards to be taught at each grade students covered under Section 504 of SUMMARY: The Secretary amends the level. the Rehabilitation Act of 1973. regulations governing programs • • Specifying in § 200.1(c)(2) that, Requiring in § 200.6(a)(2) that a administered under Title I, part A, of although academic content standards State’s academic assessment system the Elementary and Secondary may cover more than one grade, States must provide one or more alternate Education Act of 1965, as amended must have academic achievement assessments for those students with (ESEA). These regulations implement standards for each grade and subject disabilities (as defined under section recent changes to the standards and assessed. 602(3) of the Individuals with assessment requirements of Title I of the • Clarifying in § 200.1(c)(3) that, with Disabilities Education Act), who, in the ESEA made by the No Child Left Behind regard to student achievement standards determination of the student’s IEP team, Act of 2001 (NCLB Act) and were in science, States must have cannot participate in all or part of the drafted subject to a negotiated achievement levels and descriptions of State assessments, even with rulemaking process. those levels in place by the 2005–2006 appropriate accommodations. • Requiring in § 200.6(b)(2) that a DATES: These regulations are effective school year. The actual assessment State assess, in English, limited English August 5, 2002. scores (called ‘‘cut scores’’ by the proficient students’ achievement in FOR FURTHER INFORMATION CONTACT: assessment community) for those reading/language arts if those students Susan Wilhelm, Student Achievement achievement levels, however, would not have been in schools in the United and School Accountability Programs, have to be set until the assessments are States (except Puerto Rico) for three or Office of Elementary and Secondary due in the 2007–2008 school year. more consecutive years and clarifying Education, U.S. Department of • Incorporating in § 200.2 the that this requirement does not exempt a Education, 400 Maryland Avenue, SW., statutory requirements for a State to State from assessing LEP students for room 3W202, FB–6, Washington, DC implement a system of high-quality, three years. 20202–6132. Telephone: (202) 260– yearly student academic assessments. • 0826. • Clarifying in § 200.7(a)(2) that, in Requiring in § 200.2(b)(2) that a disaggregating data, a State is If you use a telecommunications State’s assessment system be designed device for the deaf (TDD), you may call responsible for determining how many to be valid and accessible for use with students constitute a sufficient number the Federal Information Relay Service the widest possible range of students, (FIRS) at 1–800–877–8339. to make the results reliable for including students with disabilities and accountability and reporting purposes. Individuals with disabilities may students with limited English • obtain this document in an alternative Clarifying in § 200.7(b)(2) that a proficiency. State must apply section 444(b) of the format (e.g., Braille, large print, • Clarifying in § 200.3 that a State General Education Provisions Act (the audiotape, or computer diskette) on may use different types of assessments request to the contact person listed Family Educational Rights and Privacy as long as those assessments (for each Act) in determining whether under FOR FURTHER INFORMATION grade and subject) address the depth disaggregated data would reveal CONTACT. and breadth of the State’s academic personally identifiable information. SUPPLEMENTARY INFORMATION: These content standards; are valid, reliable, • Requiring in § 200.8(a) that regulations implement changes to Title and of high technical quality; and individual student reports must I, part A, of the Elementary and express results in terms of the State’s describe achievement measured against Secondary Education Act, as amended academic achievement standards. the State’s academic achievement by the NCLB Act (Public Law 107–110), • Clarifying in § 200.4(a) that, if a standards. enacted January 8, 2002. State is prohibited by State law from • Requiring in § 200.9(b) that a State On May 6, 2002, the Secretary establishing standards and assessments must continue to develop assessments if published a notice of proposed applicable to all public school students, amounts appropriated at the Federal rulemaking (NPRM) in the Federal the State may adopt standards and level for assessments are below a certain Register (67 FR 30452). The proposed assessments applicable to students minimum. regulations were developed through a participating under subpart A of this • Clarifying in § 200.10 that nothing negotiated rulemaking process on the part or permit each LEA to adopt its in § 200.2 would require a private issues of standards and assessments in own standards and assessments subject school to participate in a State’s accordance with section 1901(b)(3) of to criteria developed by the State. assessment system. However, through Title I. • Clarifying in § 200.5(a) that, timely consultation with private school In the preamble to the NPRM, the beginning no later than the 2005–2006 officials, an LEA must determine how it Secretary discussed on pages 30453 school year, States must administer will assess academic services to through 30456 the major changes yearly assessments in both reading/ participating private school students proposed in that document to language arts and in mathematics in and how it will use the assessment implement changes in the standards and each of grades 3 through 8 and at least results to improve services to these assessment provisions of Title I, part A, once in grades 10 through 12. students.
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The final regulations reflect these at the following site: www.ed.gov/ § 200.1 State responsibilities for provisions, modified as noted in the legislation/FedRegister. developing challenging academic standards. analysis of comments and changes in To use PDF you must have Adobe the appendix. (a) Academic standards in general. A Acrobat Reader, which is available free State must develop challenging Analysis of Comments and Changes at this site. If you have questions about academic content and student academic using PDF, call the U.S. Government In response to the Secretary’s achievement standards that will be used Printing Office (GPO), toll free, at 1– invitation in the NPRM, 140 parties by the State, its local educational 888–293–6498; or in the Washington, submitted comments. An analysis of the agencies (LEAs), and its schools to carry DC, area at (202) 512–1530. comments and of the changes in the out subpart A of this part. These regulations since publication of the Note: The official version of this document academic standards must— NPRM is published as an appendix at is the document published in the Federal (1) Be the same academic standards the end of these final regulations. Register. Free Internet access to the official that the State applies to all public We discuss substantive issues under edition of the Federal Register and the Code schools and public school students in the sections of these regulations to of Federal Regulations is available on GPO the State, including the public schools which they pertain. Generally, we do Access at: http://www.access.gpo.gov/nara/ and public school students served under not address technical and other minor index.html. subpart A of this part; changes, or suggested changes that the (2) Include the same knowledge, (Catalog of Federal Domestic Assistance skills, and levels of achievement law does not authorize the Secretary to Number: 84.010 Improving Programs make. We also do not address suggested expected of all students; and Operated by Local Educational Agencies) (3) Include at least mathematics, changes to other parts of Title I that are reading/language arts, and, beginning in not covered in these regulations. Those List of Subjects in 34 CFR Part 200 the 2005–2006 school year, science, and comments will be considered as we Administrative practice and may include other subjects determined develop future proposed regulations, as procedure, Adult education, Children, by the State. appropriate. Coordination, Education, Education of (b) Academic content standards. (1) Executive Order 12866 disadvantaged children, Education of The challenging academic content standards required under paragraph (a) We have reviewed these final children with disabilities, Elementary and secondary education, Eligibility, of this section must— regulations in accordance with (i) Specify what all students are Executive Order 12866. Under the terms Family, Family-centered education, Grant programs-education, Indians- expected to know and be able to do; of this order, we have assessed the (ii) Contain coherent and rigorous potential costs and benefits of this education, Institutions of higher education, Interstate coordination, content; and regulatory action. (iii) Encourage the teaching of The potential costs associated with Intrastate coordination, Juvenile advanced skills. the final regulations are those resulting delinquency, Local educational (2) A State’s academic content from statutory requirements and those agencies, Migratory children, Migratory standards may— we have determined to be necessary for workers, Neglected, Nonprofit private (i) Be grade specific; or, administering this program effectively agencies, Private schools, Public (ii) Cover more than one grade if and efficiently. agencies, Reporting and recordkeeping grade-level content expectations are In assessing the potential costs and requirements, State-administered provided for each of grades 3 through 8. benefits—both quantitative and programs, State educational agencies, (3) At the high school level, the qualitative—of these final regulations, Subgrants. academic content standards must define we have determined that the benefits of Dated: June 28, 2002. the knowledge and skills that all high school students are expected to know the regulations justify the costs. Rod Paige, We discussed the potential costs and and be able to do in at least reading/ Secretary of Education. benefits of these final regulations in the language arts, mathematics, and, preamble to the NPRM under the The Secretary amends part 200 of title beginning in the 2005–06 school year, following topic: 34 of the Code of Federal Regulations as science, irrespective of course titles or follows: years completed. Executive Order 12866 (c) Academic achievement standards. Paperwork Reduction Act of 1995 PART 200—TITLE I—IMPROVING THE (1) The challenging student academic achievement standards required under The Paperwork Reduction Act of 1995 ACADEMIC ACHIEVEMENT OF THE DISADVANTAGED paragraph (a) of this section must— does not require you to respond to a (i) Be aligned with the State’s collection of information unless it academic content standards; and displays a valid Office of Management 1. The authority citation for part 200 is revised to read as follows: (ii) Include the following components and Budget (OMB) control number. We for each content area: display the valid OMB control numbers Authority: 20 U.S.C. 6301 through 6578, (A) Achievement levels that describe assigned to the collections of unless otherwise noted. at least— information in these final regulations at 2. The heading for part 200 is revised (1) Two levels of high achievement— the end of the affected sections of the to read as set forth above. proficient and advanced—that regulations. determine how well students are 3. Revise the first undesignated center mastering the material in the State’s Electronic Access to This Document heading in subpart A of this part to read academic content standards; and You may view this document, as well as follows: (2) A third level of achievement— as all other Department of Education Standards and Assessments basic—to provide complete information documents published in the Federal about the progress of lower-achieving Register, in text or Adobe Portable 4. Revise §§ 200.1 through 200.6 to students toward mastering the proficient Document Format (PDF) on the Internet read as follows: and advanced levels of achievement.
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(B) Descriptions of the competencies (1) Be the same assessment system Act (IDEA) as compared to all other associated with each achievement level. used to measure the achievement of all students; and (C) Assessment scores (‘‘cut scores’’) students in accordance with § 200.3 or (vi) Economically disadvantaged that differentiate among the § 200.4. students as compared to students who achievement levels as specified in (2) Be designed to be valid and are not economically disadvantaged. paragraph (c)(1)(ii)(A) of this section, accessible for use by the widest possible (11) Produce individual student and a description of the rationale and range of students, including students reports consistent with § 200.8(a). procedures used to determine each with disabilities and students with (12) Enable itemized score analyses to achievement level. limited English proficiency. be produced and reported to LEAs and (2) A State must develop academic (3)(i) Be aligned with the State’s schools consistent with § 200.8(b). achievement standards for every grade challenging academic content and (c) The State assessment system may and subject assessed, even if the State’s student academic achievement include academic assessments that do academic content standards cover more standards; and not meet the requirements in paragraph than one grade. (ii) Provide coherent information (b) of this section as additional (3) With respect to academic about student attainment of those measures. Those additional achievement standards in science, a standards. assessments— State must develop— (4)(i) Be valid and reliable for the (1) May not reduce the number, or (i) Achievement levels and purposes for which the assessment change the identity, of schools that descriptions no later than the 2005–06 system is used; and would otherwise be subject to school school year; and (ii) Be consistent with relevant, improvement, corrective action, or (ii) Assessment scores (‘‘cut scores’’) nationally recognized professional and restructuring under section 1116 of Title after the State has developed its science technical standards. I of the Act, if those assessments were assessments but no later than the 2007– (5) Be supported by evidence (which not used; but 08 school year. the Secretary will provide, upon (2) May identify additional schools for (d) Subjects without standards. If an request, consistent with applicable school improvement, corrective action, LEA serves students under subpart A of federal laws governing the disclosure of or restructuring. information) from test publishers or this part in subjects for which a State (Authority: 20 U.S.C. 6311(b)(3)) has not developed academic standards, other relevant sources that the the State must describe in its State plan assessment system is— § 200.3 Designing State Academic a strategy for ensuring that those (i) Of adequate technical quality for Assessment Systems. each purpose required under the Act; students are taught the same knowledge (a)(1) For each grade and subject and skills and held to the same and (ii) Consistent with the requirements assessed, a State’s academic assessment expectations in those subjects as are all system must— other students. of this section. (6) Be administered in accordance (i) Address the depth and breadth of (e) Other subjects with standards. If a with the timeline in § 200.5. the State’s academic content standards State has developed standards in other (7) Involve multiple up-to-date under § 200.1(b); subjects for all students, the State must measures of student academic (ii) Be valid, reliable, and of high apply those standards to students achievement, including measures that technical quality; participating under subpart A of this assess higher-order thinking skills and (iii) Express student results in terms part. understanding of challenging content. of the State’s student academic (Authority 20 U.S.C. 6311(b)(1)) (8) Objectively measure academic achievement standards; and (Approved by the Office of Management and achievement, knowledge, and skills (iv) Be designed to provide a coherent Budget under control number 1810–0576) without evaluating or assessing personal system across grades and subjects. or family beliefs and attitudes, except (2) A State may include in its § 200.2 State responsibilities for academic assessment system under assessment. that this provision does not preclude the use of items— § 200.2 either or both— (a)(1) Each State, in consultation with (i) Such as constructed-response, (i) Criterion-referenced assessments; its LEAs, must implement a system of short answer, or essay questions; or and high-quality, yearly student academic (ii) That require a student to analyze (ii) Assessments that yield national assessments that includes, at a a passage of text or to express opinions. norms, provided that, if the State uses minimum, academic assessments in (9) Provide for participation in the only assessments referenced against mathematics, reading/language arts and, assessment system of all students in the national norms at a particular grade, beginning in the 2007–08 school year, grades being assessed consistent with those assessments— science. § 200.6. (A) Are augmented with additional (2)(i) The State may also measure the (10) Except as provided in § 200.7, items as necessary to measure achievement of students in other enable results to be disaggregated within accurately the depth and breadth of the academic subjects in which the State each State, LEA, and school by— State’s academic content standards; and has adopted challenging academic (i) Gender; (B) Express student results in terms of content and student academic (ii) Each major racial and ethnic the State’s student academic achievement standards. group; achievement standards. (ii) If a State has developed (iii) English proficiency status; (b) A State that includes a assessments in other subjects for all (iv) Migrant status as defined in Title combination of assessments as students, the State must include I, part C of the Elementary and described in paragraph (a)(2) of this students participating under subpart A Secondary Education Act (hereinafter section, or a combination of State and of this part in those assessments. ‘‘the Act’’); local assessments, in its State (b) The assessment system required (v) Students with disabilities as assessment system must demonstrate in under this section must meet the defined under section 602(3) of the its State plan that the system has a following requirements: Individuals with Disabilities Education rational and coherent design that—
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(1) Identifies the assessments to be (2) Adopting and implementing (i) Full implementation is not possible used; policies that ensure that each LEA in the due to exceptional or uncontrollable (2) Indicates the relative contribution State that receives funds under subpart circumstances such as— of each assessment towards— A of this part will adopt academic (A) A natural disaster; or (i) Ensuring alignment with the State’s standards and academic assessments (B) A precipitous and unforeseen academic content standards; and aligned with those standards that— decline in the financial resources of the (ii) Determining the adequate yearly (i) Meet the requirements in §§ 200.1 State; and progress of each school and LEA; and and 200.2; and (ii) The State can complete (3) Provides information regarding the (ii) Are applicable to all students implementation within the additional progress of students relative to the served by the LEA. one-year period. State’s academic standards in order to (b) A State that qualifies under (b) Science. Beginning no later than inform instruction. paragraph (a) of this section must— the 2007–2008 school year, the science (c) A State that includes local (1) Establish technical criteria for assessments required under § 200.2 assessments in the system described in evaluating whether each LEA’s— must be administered at least once § 200.2(b) must— (i) Academic content and student during— (1) Establish technical criteria to academic achievement standards meet (1) Grades 3 through 5; ensure that each local assessment meets the requirements in § 200.1; and (2) Grades 6 through 9; and the requirements of paragraphs (a)(1) (ii) Academic assessments meet the (3) Grades 10 through 12. and (c)(2) of this section; requirements in § 200.2, particularly (c) Timing of results. Beginning with (2) Demonstrate in its State plan that regarding validity and reliability, the 2002–2003 school year, a State must all local assessments used for this technical quality, alignment with the promptly provide the results of its purpose— LEA’s academic standards, and assessments no later than before the (i) Are equivalent to one another and inclusion of all students in the grades beginning of the next school year to to State assessments, where they exist, assessed; LEAs, schools, and teachers in a manner in their content coverage, difficulty, and (2) Review and approve each LEA’s that is clear and easy to understand. quality; academic standards and academic (Authority: 20 U.S.C. 6311(b)(3)) (ii) Have comparable validity and assessments to ensure that they— reliability with respect to groups of (i) Meet or exceed the State’s § 200.6 Inclusion of all students. students described in section technical criteria; and A State’s academic assessment system 1111(b)(2)(C)(v) of the Act; and (ii) For purposes of this section— required under § 200.2 must provide for (iii) Provide unbiased, rational, and (A) Are equivalent to one another in the participation of all students in the consistent determinations of the annual their content coverage, difficulty, and grades assessed. progress of schools and LEAs within the quality; (a) Students eligible under IDEA and State; (B) Have comparable validity and Section 504. (1) Appropriate (3) Review and approve each local reliability with respect to groups of accommodations. A State’s academic assessment to ensure that it meets or students described in section assessment system must provide— exceeds the State’s technical criteria in 1111(b)(2)(C)(v) of the Act; and (i) For each student with disabilities, paragraph (c)(1) of this section and the (C) Provide unbiased, rational, and as defined under section 602(3) of the requirements in paragraph (c)(2) of this consistent determinations of the annual IDEA, appropriate accommodations that section; and progress of LEAs and schools within the each student’s IEP team determines are (4) Be able to aggregate, with State; and necessary to measure the academic confidence, data from local assessments (3) Be able to aggregate, with achievement of the student relative to to determine whether the State has confidence, data from local assessments the State’s academic content and made adequate yearly progress. to determine whether the State has achievement standards for the grade in (d) A State’s academic assessment made adequate yearly progress. which the student is enrolled, system may rely exclusively on local consistent with § 200.1(b)(2), (b)(3), and assessments only if it meets the (Authority: 20 U.S.C. 6311(b)(5)) (c); and requirements of § 200.4. § 200.5 Timeline for assessments. (ii) For each student covered under (Authority: 20 U.S.C. 6311(b)(3)) (a) Reading/language arts and section 504 of the Rehabilitation Act of mathematics. (1) Through the 2004– 1973 (Section 504), appropriate § 200.4 State law exception. 2005 school year, a State must accommodations that each student’s (a) If a State provides satisfactory administer the assessments required placement team determines are evidence to the Secretary that neither under § 200.2 at least once during— necessary to measure the academic the State educational agency (SEA) nor (i) Grades 3 through 5; achievement of the student relative to any other State government official, (ii) Grades 6 through 9; and the State’s academic content and agency, or entity has sufficient authority (iii) Grades 10 through 12. achievement standards for the grades in under State law to adopt academic (2) Except as provided in paragraph which the student is enrolled, content standards, student academic (a)(3) of this section, beginning no later consistent with § 200.1(b)(2), (b)(3), and achievement standards, and academic than the 2005–2006 school year, a State (c). assessments applicable to all students must administer both the reading/ (2) Alternate assessment. (i) The enrolled in the State’s public schools, language arts and mathematics State’s academic assessment system the State may meet the requirements assessments required under § 200.2— must provide for one or more alternate under §§ 200.1 and 200.2 by— (i) In each of grades 3 through 8; and assessments for a student with (1) Adopting academic standards and (ii) At least once in grades 10 through disabilities as defined under section academic assessments that meet the 12. 602(3) of the IDEA who the student’s requirements of §§ 200.1 and 200.2 on a (3) The Secretary may extend, for one IEP team determines cannot participate Statewide basis and limiting their additional year, the timeline in in all or part of the State assessments applicability to students served under paragraph (a)(2) of this section if a State under paragraph (a)(1) of this section, subpart A of this part; or demonstrates that— even with appropriate accommodations.
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(ii) Alternate assessments must yield the State must require each LEA, (b) Personally identifiable results in at least reading/language arts, beginning no later than the 2002–2003 information. (1) A State may not use mathematics, and, beginning in the school year, to assess annually the disaggregated data for one or more 2007–2008 school year, science. English proficiency, including reading, subgroups under § 200.2(b)(10) to report (b) Limited English proficient writing, speaking, and listening skills, of achievement results under section students. A State must include limited all students with limited English 1111(h) of the Act if the results would English proficient students in its proficiency in schools in the LEA. reveal personally identifiable academic assessment system as follows: (ii) The Secretary may extend, for one information about an individual (1) In general. (i) Consistent with additional year, the deadline in student. paragraph (b)(2) of this section, the State paragraph (b)(3)(i) of this section if the (2) To determine whether must assess limited English proficient State demonstrates that— disaggregated results would reveal students in a valid and reliable manner (A) Full implementation is not personally identifiable information that includes— possible due to exceptional or about an individual student, a State (A) Reasonable accommodations; and uncontrollable circumstances such as— must apply the requirements under (B) To the extent practicable, (1) A natural disaster; or section 444(b) of the General Education assessments in the language and form (2) A precipitous and unforeseen Provisions Act (the Family Educational most likely to yield accurate and decline in the financial resources of the Rights and Privacy Act of 1974). reliable information on what those State; and (3) Nothing in paragraph (b)(1) or students know and can do to determine (B) The State can complete (b)(2) of this section shall be construed the students’ mastery of skills in implementation within the additional to abrogate the responsibility of States to subjects other than English until the one-year period. implement the requirements of section students have achieved English (c) Migratory and other mobile 1116(a) of the Act for determining language proficiency. students. A State must include whether States, LEAs, and schools are (ii) In its State plan, the State must— migratory students, as defined in Title I, making adequate yearly progress on the (A) Identify the languages other than part C, of the Act, and other mobile basis of the performance of each English that are present in the student students in its academic assessment subgroup under section 1111(b)(2)(C)(v) population served by the SEA; and system, even if those students are not of the Act. (B) Indicate the languages for which included for accountability purposes (4) Each State shall include in its yearly student academic assessments are under section 1111(b)(3)(C)(xi) of the State plan, and each State and LEA shall not available and are needed. Act. implement, appropriate strategies to (iii) The State— (A) Must make every effort to develop (d) Students experiencing protect the privacy of individual such assessments; and homelessness. students in reporting achievement (B) May request assistance from the (1) A State must include homeless results under section 1111(h) of the Act Secretary in identifying linguistically students, as defined in section 725(2) of and in determining whether schools and accessible academic assessments that Title VII, Subtitle B of the McKinney- LEAs are making adequate yearly are needed. Vento Act, in its academic assessment, progress on the basis of disaggregated (2) Assessing reading/language arts in reporting, and accountability systems, subgroups. English. (i) Unless an extension of time consistent with section 1111(b)(3)(C)(xi) (Approved by the Office of Management and is warranted under paragraph (b)(2)(ii) of the Act. Budget under control number 1810–0576) of this section, a State must assess, (2) The State is not required to (Authority: 20 U.S.C. 6311(b)(3); 1232g) using assessments written in English, disaggregate, as a separate category 6. Transfer the undesignated center the achievement of any limited English under § 200.2(b)(10), the assessment heading ‘‘Schoolwide Programs’’ from proficient student in meeting the State’s results of the students referred to in its location after § 200.7 and place it reading/language arts academic paragraph (d)(1) of this section. after § 200.17 in subpart A of part 200. standards if the student has attended (Approved by the Office of Management and 7. Redesignate § 200.8 as § 200.18 and schools in the United States, excluding Budget under control number 1810–0576) place it under the undesignated center Puerto Rico, for three or more (Authority: 20 U.S.C. 6311(b)(3)) heading ‘‘Schoolwide Programs’’ in consecutive years. 5. Add § 200.7 to read as follows: subpart A of part 200. (ii) An LEA may continue, for no 8. Add a new § 200.8 and place it more than two additional consecutive § 200.7 Disaggregation of data. under the undesignated center heading years, to assess a limited English (a) Statistically reliable information. ‘‘Standards and Assessments’’ to read as proficient student under paragraph (1) A State may not use disaggregated follows: (b)(1) of this section if the LEA data for one or more subgroups under determines, on a case-by-case individual § 200.2(b)(10) to report achievement § 200.8 Assessment reports. basis, that the student has not reached results under section 1111(h) of the Act (a) Student reports. A State’s a level of English language proficiency or to identify schools in need of academic assessment system must sufficient to yield valid and reliable improvement, corrective action, or produce individual student interpretive, information on what the student knows restructuring under section 1116 of the descriptive, and diagnostic reports and can do on reading/language arts Act if the number of students in those that— assessments written in English. subgroups is insufficient to yield (1)(i) Include information regarding (iii) The requirements in paragraph statistically reliable information. achievement on the academic (b)(2)(i) and (ii) of this section do not (2) Based on sound statistical assessments under § 200.2 measured permit an exemption from participating methodology, a State must determine against the State’s student academic in the State assessment system for and justify in its State plan the achievement standards; and limited English proficient students. minimum number of students sufficient (ii) Help parents, teachers, and (3) Assessing English proficiency. (i) to yield statistically reliable information principals to understand and address Unless a State receives an extension for each purpose for which the specific academic needs of students; under paragraph (b)(3)(ii) of this section, disaggregated data are used. and
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(2) Are provided to parents, teachers, academically assessed and how the With regard to increasing public and principals— results of that assessment will be used understanding of what constitutes the (i) As soon as is practicable after the to improve those services. ‘‘proficient’’ level of achievement, the assessment is given; (2) The assessments referred to in regulations already specify that student (ii) In an understandable and uniform paragraph (b)(1) of this section may be achievement standards must include descriptions of the competencies associated format, including an alternative format the State’s academic assessments under with each achievement level. As a result, (e.g., Braille or large print) upon request; § 200.2 or other appropriate academic States will need to have grade-specific and assessments. information for each subject assessed. (iii) To the extent practicable, in a (Authority: 20 U.S.C. 6320, 7886(a)) Changes: None. language that parents can understand. Comment: One commenter suggested that (b) Itemized score analyses for LEAs Appendix—Analysis of Comments and greater clarity was needed as to when and schools. (1) A State’s academic Changes ‘‘assessment scores’’ or ‘‘cut scores’’ defining the boundaries between achievement levels assessment system must produce and Note: The following appendix will not report to LEAs and schools itemized on science assessments must be provided. appear in the Code of Federal Regulations. Discussion: The regulations state that score analyses, consistent with ‘‘assessment scores’’ or ‘‘cut scores’’ for § 200.2(b)(4), so that parents, teachers, Section 200.1 State Responsibilities for achievement levels on science assessments principals, and administrators can Developing Challenging Academic Standards do not have to be set until the assessment are interpret and address the specific Comment: One commenter recommended due in 2007–2008. For tests administered in academic needs of students. amending the regulations to make clear that, the 2007–2008 school year, completion of (2) The requirement to report itemized if a State has adopted academic content science assessment scores for each score analyses in paragraph (b)(1) of this standards in subjects other than reading/ achievement level is expected by December section does not require the release of language arts, mathematics and science for 2008. all students, those standards must be the test items. Changes: None. basis of instruction for Title I students in Comment: One commenter expressed (Authority: 20 U.S.C. 6311(b)(3)) those other subjects. concern that the regulations requiring that 9. Add § 200.9 under the Discussion: The statute explicitly requires high school content standards define the undesignated center heading ‘‘Standards that a Title I student be taught the same knowledge and skills that all students are and Assessments’’ to read as follows: knowledge and skills and be held to the same expected to know and be able to do will expectations as all students in subjects a result in standards based on minimum § 200.9 Deferral of assessments. student is taught, but for which a State is not competencies. (a) A State may defer the start or required to develop academic standards. The Discussion: High school standards must suspend the administration of the Secretary agrees that a clarification is needed reflect what a State expects all students to assessments required under § 200.2 that to ensure that Title I students are also held know by the time they graduate in the broad to the same expectations as all students when were not required prior to January 8, academic content areas of reading/language a State has academic content standards for all arts, mathematics and science, as opposed to 2002 for one year for each year for students in subjects other than reading/ the content covered in a specific course that which the amount appropriated for language arts, mathematics and science. not all students take. Academic content State assessment grants under section However, ensuring that such standards apply standards address both skills and subject 6113(a)(2) of the Act is less than the to Title I students does not change the content. While a student may be able to trigger amount in section 1111(b)(3)(D) statutory requirements for calculating demonstrate process skills through different of the Act. adequate yearly progress. content, the intent of content standards is (b) A State may not cease the Changes: Section 200.1(e) has been added that there is a body of challenging knowledge development of the assessments referred to clarify that, if a State has developed in an academic content area that all students, standards in other subjects for all students, to in paragraph (a) of this section even not just those in a particular class, are the State must apply those standards to expected to know. All students must have if sufficient funds are not appropriated students participating under subpart A of this access to the same challenging content if no under section 6113(a)(2) of the Act. part. child is to be left behind. (Authority: 20 U.S.C. 6311(b)(3); 7301b(a)(2)) Comment: One commenter recommended Changes: None. amending the regulations to require States to Comment: One commenter suggested that § 200.10 [Redesignated as § 200.14] develop standards in computer science. the Secretary provide a deadline for the 10. Redesignate § 200.10 as § 200.14. Discussion: The NLCB Act identifies development of grade-level content standards 11. Add a new § 200.10 and place it reading/language arts, mathematics, and or expectations as well as the descriptions of under the undesignated center heading science as the three subjects for which States competencies associated with each ‘‘Standards and Assessments’’ to read as must develop academic contents standards. achievement level in mathematics and States are free to develop standards in other follows: reading/language arts. subject areas and, in fact, many have done so. Discussion: The 2002 Consolidated State § 200.10 Applicability of a State’s Changes: None. Application requires that States provide a academic assessments to private schools Comment: Several commenters raised timeline of major milestones for either and private school students. issues related to student academic adopting challenging content standards in, or achievement standards. One commenter disseminating grade-level expectations for, (a) Nothing in § 200.1 or § 200.2 sought clarification as to whether States may reading/language arts and mathematics at requires a private school, including a have more than three levels of student each grade level for grades 3 through 8. States private school whose students receive achievement standards. Several other must provide evidence of content standards services under subpart A of this part, to commenters indicated a need for States to or grade-level expectations in reading/ participate in a State’s academic have grade-specific examples of student work language arts and mathematics for grades 3 assessment system. to help ensure that the public has a clear through 8 by May 2003. (b)(1) If an LEA provides services to understanding of what the ‘‘proficient’’ level Changes: None. eligible private school students under of achievement entails. Discussion: States have the flexibility to Section 200.2 State Responsibilities for subpart A of this part, the LEA must, develop more than three levels of student Assessment through timely consultation with achievement standards. However, States Comment: A number of commenters appropriate private school officials, choosing to do so must ensure that their commented generally on the NCLB Act’s determine how services to eligible student achievement standards include at assessment requirements. One commenter, private school students will be least the three levels required by the statute. for example, applauded the NCLB Act’s
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efforts to move districts to annual promoting achievement to high standards by State must administer those assessments to assessments in grades 3 through 8. Another schools and students using standards-based Title I students. commenter supported a national test to assessments aligned with a State’s academic Discussion: Section 1111(b)(1) of the Act obtain more standardization among States. content and achievement standards. concerning academic standards makes clear Another commenter, however, expressed Individual level assessments (or levels that a State must have such standards for all concern that the NCLB Act places a assessments or adaptive assessments) would public elementary and secondary school disproportionate emphasis on nationwide measure the performance of some students at students, including students served under testing and insufficient emphasis on basic a particular grade level against lower this part, in subjects determined by the State. learning and curriculum deficits. The standards. This would result in some schools Those subjects must include reading/ commenter noted that, without the necessary being held to lower standards than other language arts, mathematics, and science, but curriculum frameworks in place, students schools in the same school district. Use of may certainly include other subjects as well. would not be able to successfully pass the levels assessments would not allow all Section 1111(b)(3) of the Act also requires a required tests. Other commenters, schools and students to be held to the same State to have assessments that are aligned particularly teachers, criticized reliance on high standards required by the NCLB Act. with its academic standards, and those one assessment to judge performance and Changes: None. assessments must be the same academic emphasized the need for multiple Comment: One commenter suggested that assessments used to measure the assessments throughout the year to truly the final regulations clarify that charter achievement of all students. As a result, if a know that students are learning. schools must comply with all the assessment State adopts standards and aligned Discussion: The assessment requirements and reporting requirements that apply to assessments in subjects not required under are one cornerstone of the NCLB Act. They traditional public schools. The commenter section 1111, the State must also use those implement President George W. Bush’s plan also suggested that chartering agencies be standards and assessments to measure the to assess students in grades 3 through 8 and required to submit all data to the SEA in achievement of students participating under at least once during high school to help order to provide parents and the public subpart A of this part. However, assuring that teachers and parents know how their comprehensive and accurate information on such assessments apply to Title I schools students are achieving. These assessments all public schools in the State. does not change the statutory requirements also are the primary vehicle for holding Discussion: Under section 1111(b)(3)(A) of for calculating adequate yearly progress. schools and school districts accountable for the Act, each State must implement a set of Changes: Section 200.2(a)(2)(ii) has been student achievement. The NCLB Act high-quality, yearly student assessments that added to make clear that, if a State has assessment requirements do not require, or will be used as the primary means of developed assessments in other subjects for even envision, a national test. Rather, they determining the yearly performance of the all students, the State must include students rely on each State to develop or adopt an State and of each LEA and school in the participating under subpart A of this part in assessment system that is aligned with the State. Thus, the assessment requirements in those assessments. State’s own academic content and §§ 200.2 through 200.9 apply, as appropriate, Comment: A number of commenters noted achievement standards. Moreover, the NCLB to all public elementary and secondary that the provision in § 200.2(b)(1) requires Act assessment requirements do not purport schools in a State. As such, they also apply the assessment system to measure the to be the sole assessments that schools will to public charter schools. achievement of all students. The commenters use to measure the achievement of their Changes: None. expressed concern that, because students do students. Teachers regularly assess the Comment: A number of commenters not all achieve at the same level, the progress of their students through formal and commented on the fact that the regulations assessment system must be allowed to assess informal measures and modify their require a State’s assessment system to meet a student’s actual level of achievement, not instruction accordingly. certain requirements. Two commenters just the desired level of achievement. Changes: None. supported the emphasis on an assessment Teachers, in particular, emphasized that all Comment: Several commenters questioned system, noting that it recognizes a coherent students do not achieve at the same level and whether § 200.2 permits a State assessment program of standards and assessments that that tests, to be helpful for planning system to include approaches such as matrix provides flexibility to States. Other instruction, must focus on student sampling or parallel forms that administer commenters, however, disagreed and performance, not a student’s grade level. different questions to different students. The suggested changing the phrases ‘‘assessment Other commenters specifically supported commenters expressed support for flexibility system’’ and ‘‘system of assessments’’ ‘‘out-of-level’’ tests for students who are in this regard. throughout the regulations to ‘‘assessments’’ studying at a lower academic level than their Discussion: The statute does not preclude to be consistent with the statute. The grade level, suggesting that grade-level the use of parallel test forms or assessments commenters expressed concern that, under assessments would not be valid because they that employ a matrix design as long as the an assessment system, a State could depart would not focus on what a student was assessments yield individual student results from using the same assessments for all actually learning nor would they provide expressed in terms of the State academic students. meaningful information to parents. content and achievement standards. The Discussion: Section 1111(b)(3) of the Act Discussion: One of the bedrock principles statute does require that all students be held requires a State to develop and implement a of the NCLB Act is that all students can learn to the same achievement standards. This ‘‘set of high-quality, yearly student academic to high standards. As a result, section means that assessments for a particular grade assessments.’’ The final regulations 1111(b)(1) requires challenging academic and subject must elicit comparable content intentionally use the phrases ‘‘assessment content and student achievement standards knowledge and understanding, within the system’’ and ‘‘system of assessments’’ to that a State applies to all schools and framework of the standards, for all students emphasize that this set of assessments must students in the State. Similarly, section tested. If parallel forms or a matrix design are produce a coherent and rational system for 1111(b)(3) requires a State to develop aligned used, the State must provide evidence that all measuring the depth and breadth of the assessments that the State uses to measure students are being held to the same academic State’s content standards and for holding the achievement of all students. These achievement standards for the grade tested. schools and LEAs accountable. It also requirements are accurately implemented in Changes: None. permits flexibility in how that system is §§ 200.2(b)(1) and 200.6(a) of the final Comment: One commenter recommended structured. Using the word ‘‘system’’ in no regulations. Specifically, as § 200.6(a)(1) that a State’s assessment system under way negates the fact that the assessments indicates, a State’s assessment system must § 200.2 require ‘‘individual level required under § 200.2 must be the same provide accommodations so that a student assessments.’’ According to the commenter, assessments used to measure the with disabilities or a student covered under those assessments are a valuable tool in achievement of all students. Section 504 of the Rehabilitation Act of 1973 learning and teaching because they assess Changes: None. can be held to the content and achievement where a child is and how much growth the Comment: One commenter noted regarding standards for the grade in which the student child has made in a nine-month period. § 200.2(a)(2) that, if a State develops is enrolled. Although ‘‘out-of-level’’ tests, for Discussion: The focus of the NCLB assessments in subjects other than reading/ example, may provide instructional standards and assessment regulations is language arts, mathematics, and science, the information about a student’s progress, they
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are not an acceptable means to meet the Changes: None. Discussion: Section 200.1(b)(3) is intended State’s assessment requirements under to make clear that a State must define the §§ 200.2 and 200.6 or the accountability Section 200.3 Designing State Academic academic content standards it expects high- requirements of the NCLB Act. Assessment Systems school students to know and be able to do. Changes: None. Comment: A number of commenters These standards may well include content Comment: Several commenters commented generally supported the flexibility afforded in that is covered in several courses. For on § 200.2(b)(5), which requires a State § 200.3. example, a State’s mathematics standards assessment system be supported by evidence Discussion: The Secretary appreciates the may include content in algebra, geometry, from test publishers or other relevant sources commenters’ support. In developing this and probability. Under § 200.3(a)(1)(i), a that the system is of adequate technical provision, the Secretary intends to afford State’s high-school assessments must address quality for each purpose required under the significant flexibility to States, consistent the depth and breadth of the State’s content Act. One commenter requested that this with section 1111(b)(3) of the Act, to enable standards. As a result, an end-of-course requirement be phased in to apply to new States to design assessment systems that best Algebra I test may not measure the depth and assessments entered into by States after the meet their needs. At the same time, the breadth of this State’s mathematics standards effective date of the final regulations. The Secretary has included safeguards to ensure unless that test also measures geometry and commenter expressed concern that evidence that those systems adequately measure a probability. The provision in § 200.3(a)(1)(i), of technical quality may not be covered State’s standards, hold schools and students however, is not intended to require a de facto under existing contracts. Other commenters to high academic achievement standards, are graduation test. suggested adding disclosure protections valid, reliable, and of high technical quality, Changes: None. provided for under State law and contractual express student results in terms of the State’s Comment: A number of commenters agreements. standards, and are designed to provide a addressed § 200.3(a)(2), which permits a Discussion: Section 200.2(b)(5) implements coherent system across grades and subjects. State to include in its assessment system a new requirement in section Changes: None. either or both criterion-referenced 1111(b)(3)(C)(iv) that a State must provide Comment: Several commenters commented assessments or nationally normed the Secretary evidence from the test on § 200.3(a)(1)(i), which requires a State’s assessments that are augmented with publisher or other relevant sources that the assessment system to address the depth and additional items. Some commenters State’s assessments are of adequate technical breadth of the State’s academic content supported this flexibility. One commenter quality. Although this is a new statutory standards. Some commenters endorsed the supported the use of nationally normed requirement, the Secretary has requested regulatory language as written, noting that assessments only if those assessments are evidence of technical quality in its review of the system as a whole must address the depth augmented with additional items as State assessment systems under the and breadth of the State’s standards but not necessary to measure a State’s content Improving America’s Schools Act, necessarily each assessment component. One standards. Other commenters, however, predecessor to the NCLB Act. As a result, the commenter, in particular, argued strongly criticized the use of nationally Secretary does not anticipate that this persuasively that it would be literally normed assessments at all, arguing they are requirement will pose a problem for States. impossible, as well as unnecessary, for a contrary to the intent of the NCLB Act and Moreover, this requirement applies to State to measure students’ attainment of would damage effective implementation. assessments developed to meet the new every single content standard. This These commenters noted that norm- NCLB Act requirements and should thus commenter suggested that States need to be referenced assessments measure performance afford States sufficient time to modify test able to identify their highest-priority content relative to other students rather than to contracts, if necessary. With respect to the standards and then ensure that students’ standards and thus are antithetical to the comment to protect disclosure of information mastery of those standards is appropriately notion that all students can learn at high based on State law or contractual provisions, measured to inform instruction. Other levels. Another commenter noted that norm- we would expect the State and its test commenters, however, strongly supported referenced assessments are not aligned with publishers to work out any issues in a requiring an assessment system to address State standards. manner that permits submission of adequate fully the depth and breadth of the State’s Discussion: The Secretary has carefully evidence of technical quality. Once standards. These commenters believed that, considered these comments and believes the submitted to the Department, the technical without the word ‘‘fully,’’ any assessment final regulations contain the proper amount information is a public record, subject only system could meet the requirement that it of flexibility for States while requiring any to Federal disclosure rules and protections. address the depth and breadth of a State’s State that uses only a nationally normed Changes: None. content standards. assessment at a particular grade to augment Comment: One commenter requested that Discussion: Section 1111(b)(3)(C)(ii) of the that assessment with additional items as the Secretary clarify the requirement in Act requires a State’s assessment system to be necessary to measure the depth and breadth § 200.2(b)(7) that a State’s assessment system aligned with its academic content and of the State’s standards. Moreover, student must include multiple up-to-date measures of student achievement standards and provide results from an augmented nationally normed student academic achievement, including coherent information about student assessment must be expressed in terms of the measures that assess higher-order thinking attainment of those standards. The purpose State’s achievement standards, not relative to skills and understanding of challenging of § 200.3(a)(1)(i) is to ensure that a State’s other students in the nation. The Secretary content. According to the commenter, assessment system measures both the depth believes these provisions address the multiple measures means multiple ways of and breadth of the State’s standards. As the commenters’ concerns and will ensure that, measuring the same proficiencies to increase comments suggest, the system as a whole before a State includes a nationally normed the validity of determinations based on the must meet this requirement. The Secretary assessment in its assessment system, the assessment results. does not believe that adding the word ‘‘fully’ State carefully examines the alignment of the Discussion: The term ‘‘multiple measures’’ would significantly strengthen this assessment with the State’s standards and the has several meanings. On occasion, it means requirement. extent to which the State must add items to assessments using different formats (selected Changes: None. fully address its standards. Moreover, if a response, constructed response, etc.). It also Comment: One commenter questioned State combines criterion-referenced and refers to assessments that measure objectives whether § 200.3(a)(1)(i) in effect requires a nationally normed assessments, the State within a particular content domain and graduation test. The commenter expressed must demonstrate that its system has a assessments with items that measure both concern that, read in conjunction with rational and coherent design. higher-order thinking skills (reasoning, § 200.1(b)(3), which requires high-school Changes: None. synthesis, analysis, etc.) as well as content standards ‘‘irrespective of course Comment: A number of commenters knowledge and recall items to assess the titles or years completed,’’ the requirement in commented on § 200.3(b), which permits a depth and breadth of mastery of the § 200.3(a)(1)(i) that high-school assessments State assessment system to include a particular content domain. The final address the depth and breadth of the State’s combination of State and local assessments, regulations, therefore, do not limit the content standards would result in a de facto provided the system has a rational and meaning. graduation test. coherent design and meets a number of
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rigorous requirements. Some commenters voluntary consortia of LEAs using common have attended several schools in an LEA for strongly supported the flexibility this sets of standards, benchmarks, and a full academic year but have not attended provision affords States. Several commenters, assessments be permitted. the same school for a full academic year must however, criticized this provision. The Discussion: The NCLB Act requires a State be included in assessments and their commenters argued that this provision to use its State assessment system to measure performance be used in determining whether conflicts with section 1111(b)(3)(C) of the the adequate yearly progress (AYP) of each LEAs make AYP. As a result, data for these Act, which requires a State’s assessments to public school and LEA in the State and to students will influence whether SEAs make ‘‘be the same academic assessments used to hold schools and LEAs accountable for AYP also. Moreover, even if homeless measure the achievement of all children’’ in failing to make AYP. To ensure that LEAs are children attend schools in several LEAs, they the State. Moreover, the commenters believed evaluated fairly and consistently across a must be assessed and their performance that LEAs, which are subject under the NCLB State that is using only local assessments, it would be included in determining State AYP. Act to much stricter accountability is thus critical that the State establish criteria Changes: None. requirements than under the prior law, to ensure equivalence in content coverage, Section 200.7 Disaggregation of Data would have an incentive to adopt easier local difficulty, and quality of LEA’s local assessment measures in order to ensure that assessments. In addition, the statute requires Comment: A number of commenters their students make adequate yearly progress. that AYP be calculated for a State based on expressed concern regarding the requirement The commenters also questioned whether the State’s aligned assessment system. In a that States set their own group sizes and LEAs have sufficient resources and expertise State relying solely on local assessments, the minimum thresholds. One commenter needed to develop local assessments that results of AYP calculations could not provide suggested that the regulations specify what a truly meet the rigorous standards for statistically valid and reliable results without reliable group size is. Many commenters alignment, multiple measures, and inclusion equivalency among assessments. recommended that the Secretary set a that the Act requires. In addition, the Changes: None. uniform minimum student threshold for reporting accountability to ensure statistical commenters noted that using local Section 200.6 Inclusion of All Students assessments would preclude like reliability and validity. On the other hand, Comment: One commenter indicated that comparisons of all students. one commenter supported the State’s ability clarification was needed regarding the Discussion: The Secretary appreciates the to set its own minimum thresholds. This inclusion of students with limited English commenters’ concerns and believes that local commenter commended the Department’s proficiency (LEP) in State assessments. The acknowledgement of the flexibility in the assessments must be held to a high standard commenter suggested that the Secretary before they may be included in a State’s threshold necessary to accommodate the require States to establish criteria and variability in circumstances. assessment system. A State must procedures for including LEP students in the demonstrate, for example, that its local Discussion: The statute states that mathematics and science tests prior to the subgroup disaggregation is not required for assessments meet requirements such as three-year schooling requirement for validity, reliability, technical quality, accountability or reporting purposes if the including them in reading/language arts number is too small to yield reliable alignment, and inclusion of all students. assessments. This commenter felt that the Furthermore, the State must demonstrate that information or if the results would reveal inclusion of LEP students in the assessments personally identifiable information. This the assessments are equivalent to one another from the beginning of the school year is issue was subject to a great deal of discussion in their content coverage, difficulty, and neither practical nor conducive to the during negotiated rulemaking. Ultimately, it quality; have comparable validity and attainment of valid and reasonable was decided that each State is in the best reliability; and provide unbiased, rational, assessment results. position to make this determination due to and consistent determinations of the Discussion: The statute requires that LEP the wide variety in school size across the adequate yearly progress of schools and LEAs students be included in State assessment nation, differences in test psychometric within the State. If local assessments can systems. For their first three years in U.S. properties, and the fact that different meet these requirements, the Secretary schools, such students must be tested in numbers may be reliable for reporting than believes a State may include them in its State reading/language arts and mathematics for accountability. assessment system. content (and science by 2007–2008) in a Changes: None. Changes: None. valid and reliable manner, including, to the Comment: One commenter questioned the extent practicable, native language Section 200.8 Assessment Reports reference in § 200.3(c)(1), which deals with assessments if a native language assessment Comment: One commenter recommended local assessments in a State’s assessment would yield better information on what a amending the regulations to require that system, to § 200.3(a)(2), which permits either student knows and can do. Students with score analyses indicate the number of items or both criterion-referenced or augmented limited-English proficiency who have been in and assessment instruments that support a nationally normed assessments. The U.S. schools (except Puerto Rico) for three or determination that a student is less than commenter believed that the cross-reference more years are to be tested in English on the proficient in meeting a particular State assumed that any local assessment would be reading/language arts assessment. standard. nationally normed. Changes: None. Discussion: The regulations do not specify Discussion: The purpose of the Comment: One commenter recommended what a score analyses must include so that requirements in § 200.3(c)(1) is to ensure that that SEAs and LEAs be required to report on States may have maximum flexibility in a State whose assessment system includes the progress of students who are homeless tailoring their score analyses to the type of local assessments establish technical criteria and who attend school in more than one assessment system they have developed. The to ensure that each local assessment meets school district in a school year. That Secretary agrees that there may be statutory requirements applicable to commenter also recommended amending the circumstances where such information is statewide assessments. Its purpose is not to regulations to require that the performance of helpful. A State may certainly include the require that local assessments be nationally homeless children who attend more than one commenter’s suggested items in its score normed assessments. school in an LEA be used in determining the analyses. Changes: The cross-reference in progress of the SEA in meeting adequate Change: None. § 200.3(c)(1) has been changed to refer to yearly progress. § 200.3(a)(1) and (c)(2), which establish Discussion: The goal of the NCLB Act is to Section 200.9 Deferral of Assessments requirements for local assessments that ensure that all students benefit from school Comment: One commenter indicated that comprise a State’s system. reforms designed to increase achievement, requiring continued work on assessment including students who are experiencing development when the appropriation falls Section 200.4 State Law Exception homelessness. As additional guidance below the trigger amount would be difficult Comment: One commenter objected to the documents are developed, the Secretary will if Federal funds are being used for regulation specifying that local assessments work to identify ways to assist States and assessment development. be equivalent to one another in content LEAs accomplish this goal. Discussion: The regulations restate the coverage, difficulty, and quality across a On the issue of calculating AYP for States, statutory requirements. The Secretary State. Instead, the commenter suggested that the statute already requires that students who believes that Congress did not want
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assessment development to cease once it academic assessments to private schools and Discussion: These regulations do, in fact, begins, even if sufficient Federal funds are private school students. Additionally, one indicate that the decision rests with the LEA. not available. commenter suggested that the regulation However, the LEA must consult with private Changes: None. should be revised to make it clearer that the school officials in making the determination. Section 200.10 Applicability of a State’s LEA has the sole authority for determining Changes: None. Academic Assessments to Private Schools which assessment to use when assessing [FR Doc. 02–16913 Filed 7–3–02; 8:45 am] and Private School Students services to eligible students attending private BILLING CODE 4000–01–P Comment: Several commenters commented schools. generally on the applicability of a State’s
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Reader Aids Federal Register Vol. 67, No. 129 Friday, July 5, 2002
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY
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. 229...... 44964 Presidential Documents 3 CFR Executive orders and proclamations 523–5227 Proclamations: 18 CFR The United States Government Manual 523–5227 7575...... 44755 284...... 44529 Executive Orders: Other Services 13129 (See EO 21 CFR Electronic and on-line services (voice) 523–3447 13268) ...... 44751 558...... 44931 Privacy Act Compilation 523–3187 13224 (Amended by Proposed Rules: 523–6641 Public Laws Update Service (numbers, dates, etc.) EO 13268)...... 44751 312...... 44931 TTY for the deaf-and-hard-of-hearing 523–5229 13268...... 44751 22 CFR 7 CFR 126...... 44352 ELECTRONIC RESEARCH 301...... 44523 World Wide Web 762...... 44015 24 CFR 1200...... 44349 Full text of the daily Federal Register, CFR and other publications Proposed Rules: Proposed Rules: 1000...... 44787 is located at: http://www.access.gpo.gov/nara 800...... 44571 Federal Register information and research tools, including Public 922...... 44095 25 CFR Inspection List, indexes, and links to GPO Access are located at: 1724...... 44396 11...... 44353 http://www.nara.gov/fedreg 1726...... 44396 170...... 44355 1755...... 44396 E-mail 26 CFR FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 8 CFR an open e-mail service that provides subscribers with a digital 214...... 44344 Proposed Rules: form of the Federal Register Table of Contents. The digital form 31...... 44579 of the Federal Register Table of Contents includes HTML and 9 CFR 301...... 44579 PDF links to the full text of each document. 94...... 44016, 44524 29 CFR To join or leave, go to http://listserv.access.gpo.gov and select Proposed Rules: 93...... 44097 1904...... 44037 Online mailing list archives, FEDREGTOC-L, Join or leave the list 1915...... 44533 (or change settings); then follow the instructions. 10 CFR Proposed Rules: PENS (Public Law Electronic Notification Service) is an e-mail 431...... 45018, 45028 1904...... 44124 service that notifies subscribers of recently enacted laws. Proposed Rules: 30 CFR To subscribe, go to http://hydra.gsa.gov/archives/publaws-l.html 170...... 44573 and select Join or leave the list (or change settings); then follow 171...... 44573 250...... 44265, 44357 the instructions. 12 CFR 31 CFR FEDREGTOC-L and PENS are mailing lists only. We cannot 103...... 44048 respond to specific inquiries. Ch. III ...... 44351 261a...... 44526 33 CFR Reference questions. Send questions and comments about the Proposed Rules: Federal Register system to: [email protected] 703...... 44270 100 ...... 44547, 44548, 44550, The Federal Register staff cannot interpret specific documents or 704...... 44270 44551 regulations. 1720...... 44577 117...... 44553 165 ...... 44057, 44059, 44360, 14 CFR 44362, 44364, 44367, 44555, FEDERAL REGISTER PAGES AND DATE, JULY 25...... 44018 44557, 44558, 44562, 44564, 44015–44348...... 1 39 ...... 44024, 44028, 44030, 44566 44349–44522...... 2 44526, 44527 Proposed Rules: 117...... 44582 44523–44756...... 3 95...... 44033 44757–45048...... 5 Proposed Rules: 25...... 44111 34 CFR 39 ...... 44116, 44119, 44401, 200...... 45038 44404, 44578 36 CFR 15 CFR 1201...... 44757 Proposed Rules: 1275...... 44765 930...... 44407 40 CFR 17 CFR 52 ...... 44061, 44062, 44065, 1...... 44036 44369 4...... 44931 63...... 44371, 44766 Proposed Rules: 271...... 44069 210...... 44964 81...... 44769
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228...... 44770 46 CFR 49 CFR 622...... 44569 Proposed Rules: 540...... 44774 501...... 44083 648...... 44392, 44570 52 ...... 44127, 44128, 44410 541...... 44085 660...... 44778 63...... 44672, 44713 47 CFR 659...... 44091 679...... 44093 81...... 44128 36...... 44079 Proposed Rules: Proposed Rules: 571...... 44416 42 CFR 73...... 44777 17...... 44934 216...... 44132 412...... 44073 Proposed Rules: 50 CFR 223...... 44133 413...... 44073 73 ...... 44790, 44791, 44792 17 ...... 44372, 44382, 44502 224...... 44133 229...... 44092 648...... 44139, 44792 44 CFR 48 CFR 300...... 44778 64...... 44077 1842...... 44777 600...... 44778 679...... 44794
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REMINDERS due by 7-8-02; published promulgation; various The items in this list were RULES GOING INTO 5-9-02 [FR 02-11352] States: editorially compiled as an aid EFFECT JULY 7, 2002 COMMERCE DEPARTMENT California; comments due by to Federal Register users. National Oceanic and 7-10-02; published 6-10- Inclusion or exclusion from 02 [FR 02-14207] COMMERCE DEPARTMENT Atmospheric Administration this list has no legal Maryland; comments due by National Oceanic and Fishery conservation and significance. management: 7-11-02; published 6-11- Atmospheric Administration 02 [FR 02-14491] Magunuson-Stevens Act Fishery conservation and provisions— Pennsylvania; comments RULES GOING INTO management: due by 7-8-02; published Domestic fisheries; Caribbean, Gulf of Mexico, 6-6-02 [FR 02-14035] EFFECT JULY 5, 2002 exempted fishing permit and South Atlantic applications; comments South Dakota; comments fisheries— due by 7-10-02; published ENVIRONMENTAL due by 7-12-02; 6-10-02 [FR 02-14366] PROTECTION AGENCY Red snapper; published 7- published 6-27-02 [FR 3-02 Clean Air Act: Air pollutants, hazardous; 02-16281] national emission standards: CONSUMER PRODUCT State operating permits programs— Portland cement COMMENTS DUE NEXT SAFETY COMMISSION Oregon; comments due manufacturing industry; WEEK Federal Hazardous by 7-10-02; published published 4-5-02 Substances Act: 6-10-02 [FR 02-13972] Correction and AGRICULTURE Metal-cored candle wicks DEPARTMENT containing lead and Oregon; comments due clarification; published by 7-10-02; published Agricultural Marketing candles with such wicks; 7-5-02 6-10-02 [FR 02-13973] Service illness risk; comments due FEDERAL by 7-8-02; published 4-24- Hazardous waste program Cherries (tart) grown in— COMMUNICATIONS 02 [FR 02-09960] authorizations: COMMISSION Michigan et al.; comments EDUCATION DEPARTMENT Nevada; comments due by Television broadcasting: due by 7-10-02; published 7-12-02; published 6-12- 6-10-02 [FR 02-14405] Nondiscrimination on basis of Digital television construction sex in education programs 02 [FR 02-14629] Raisins produced from grapes deadline extension receiving Federal Superfund program: grown in— requests, Media Bureau’s assistance; comments due National oil and hazardous authority to deny; California; comments due by by 7-8-02; published 5-8-02 substances contingency published 6-4-02 7-9-02; published 6-24-02 [FR 02-11476] plan— [FR 02-15961] NATIONAL AERONAUTICS ENVIRONMENTAL National priorities list AND SPACE AGRICULTURE PROTECTION AGENCY update; comments due DEPARTMENT ADMINISTRATION Air pollutants, hazardous; by 7-8-02; published 6- Federal Acquisition Regulation Animal and Plant Health national emission standards: 7-02 [FR 02-14209] (FAR): Inspection Service Generic maximum Toxic substances: Contractor performance Exportation and importation of achievable control Significant new uses— information; published 7-5- animals and animal technology standards; Perfluoroalkyl sulfonates; 02 products: comments due by 7-8-02; comments due by 7-9- Swine fever; disease status published 6-7-02 [FR 02- SOCIAL SECURITY 02; published 4-5-02 change— 13800] ADMINISTRATION [FR 02-08259] Baja California, Baja Semiconductor Water pollution control: Supplemental security income: California Sur, manufacturing operations; National Pollutant Discharge Aged, blind, and disabled— Chihuahua, and comments due by 7-8-02; Elimination System— published 5-8-02 [FR 02- World War II veterans; Sinaloa; comments due Cooling water intake 11298] special benefits; by 7-12-02; published structures at Phase II overpayments collection; 5-13-02 [FR 02-11897] Air pollution control: existing facilities; published 6-4-02 Used farm equipment State operating permits requirements; comments TRANSPORTATION imported from regions programs— due by 7-8-02; DEPARTMENT affected with foot-and- Oregon; comments due published 4-9-02 [FR mouth disease; comments Coast Guard by 7-10-02; published 02-05597] due by 7-12-02; published 6-10-02 [FR 02-13974] FEDERAL Civil and criminal penalty 5-13-02 [FR 02-11896] proceedings: Oregon; comments due COMMUNICATIONS Plant-related quarantine, by 7-10-02; published COMMISSION Marine violation notices; domestic: 6-10-02 [FR 02-13975] Common carrier services: response options; Citrus canker; comments published 6-4-02 Air pollution control; new Individuals with hearing and due by 7-8-02; published motor vehicles and engines: speech disabilities; 5-8-02 [FR 02-11459] Tier 2/gasoline sulphur improved RULES GOING INTO AGRICULTURE regulations; comments telecommunications relay EFFECT JULY 6, 2002 DEPARTMENT due by 7-12-02; published and speech-to-speech Commodity Credit 6-12-02 [FR 02-13802] services; comments due by 7-11-02; published 6- TRANSPORTATION Corporation Air programs; approval and 11-02 [FR 02-14678] DEPARTMENT Loan and purchase programs: promulgation; State plans for designated facilities and Digital television stations; table Coast Guard Non-recourse cotton loan and loan deficiency pollutants: of assignments: Ports and waterways safety: payment programs, upland Maine; comments due by 7- Georgia; comments due by Cook Inlet, AK; security cotton first handler 10-02; published 6-10-02 7-8-02; published 5-23-02 zone; published 7-1-02 marketing certificate [FR 02-14487] [FR 02-13028] Detroit River, MI; safety program, and seed cotton Air quality implementation Frequency allocations and zone; published 7-2-02 loan program; comments plans; 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4.9 GHz band transferred reclamation plan Turbomeca; comments due session of Congress which from Federal government submissions: by 7-9-02; published 5-10- have become Federal laws. It use; comments due by 7- Kentucky; comments due by 02 [FR 02-11667] may be used in conjunction 8-02; published 4-9-02 7-8-02; published 6-6-02 Airworthiness standards: with ‘‘PLUS’’ (Public Laws [FR 02-08483] [FR 02-14079] Special conditions— Update Service) on 202–523– Radio stations; table of West Virginia; comments CAP Aviation Model 222 6641. This list is also assignments: due by 7-8-02; published airplane; comments due available online at http:// Alabama and Michigan; 6-6-02 [FR 02-14078] by 7-9-02; published 3- www.nara.gov/fedreg/ 11-02 [FR 02-05812] plawcurr.html. comments due by 7-8-02; JUSTICE DEPARTMENT published 6-14-02 [FR 02- Class E airspace; comments 15098] Privacy Act; implementation; due by 7-8-02; published 5- The text of laws is not comments due by 7-8-02; Michigan and Georgia; 28-02 [FR 02-13216] published in the Federal published 5-9-02 [FR 02- comments due by 7-8-02; TRANSPORTATION Register but may be ordered 11579] published 6-11-02 [FR 02- DEPARTMENT in ‘‘slip law’’ (individual 14652] NUCLEAR REGULATORY Federal Motor Carrier Safety pamphlet) form from the North Carolina; comments COMMISSION Administration Superintendent of Documents, due by 7-8-02; published Federal claims collection: Motor carrier safety standards: U.S. Government Printing 6-3-02 [FR 02-13822] Salary offset procedures; Safety fitness procedures— Office, Washington, DC 20402 comments due by 7-8-02; New entrant safety (phone, 202–512–1808). The FEDERAL ELECTION text will also be made COMMISSION published 4-24-02 [FR 02- assurance process; comments due by 7-12- available on the Internet from Bipartisan Campaign Reform 09885] 02; published 5-13-02 GPO Access at http:// Act; implementation: SECURITIES AND [FR 02-11730] www.access.gpo.gov/nara/ Contribution and EXCHANGE COMMISSION TRANSPORTATION nara005.html. Some laws may expenditure; redefinition Security futures products: DEPARTMENT not yet be available. and regulations Broker-dealer confirmation National Highway Traffic reorganization; comments requirements; comments Safety Administration H.R. 327/P.L. 107–198 due by 7-12-02; published due by 7-10-02; published 6-14-02 [FR 02-14902] Motor vehicle safety 6-10-02 [FR 02-14294] standards: Small Business Paperwork HEALTH AND HUMAN STATE DEPARTMENT Air brake systems— Relief Act of 2002 (June 28, SERVICES DEPARTMENT Consular services; fee Trailer test rig 2002; 116 Stat. 729) Centers for Medicare & schedules; comments due modifications; technical S. 2578/P.L. 107–199 Medicaid Services by 7-8-02; published 6-6-02 amendments; comments Medicare: [FR 02-13001] due by 7-12-02; To amend title 31 of the Hospital inpatient Correction; comments due published 5-28-02 [FR United States Code to prospective payment by 7-8-02; published 6-14- 02-13221] increase the public debt limit. systems and 2003 FY 02 [FR 02-15096] TREASURY DEPARTMENT (June 28, 2002; 116 Stat. rates; comments due by TRANSPORTATION Internal Revenue Service 734) 7-8-02; published 5-9-02 DEPARTMENT Income taxes: [FR 02-11290] Consolidated return Last List June 26, 2002 Coast Guard HEALTH AND HUMAN regulations— SERVICES DEPARTMENT Drawbridge operations: Loss limitation rules; Food and Drug Michigan; comments due by cross-reference; 7-9-02; published 5-10-02 Administration comments due by 7-10- Public Laws Electronic Human drugs: [FR 02-11718] 02; published 5-31-02 [FR 02-13575] Notification Service Pediatric drugs and TRANSPORTATION (PENS) biologics; obtaining timely DEPARTMENT Consolidated return pediatric studies and Federal Aviation regulations: adequate labeling; Administration Loss limitation rules; cross-reference; comments due by 7-8-02; Air carrier certification and PENS is a free electronic mail comments due by 7-10- published 4-24-02 [FR 02- operations: notification service of newly 02; published 3-12-02 09980] enacted public laws. 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