4–23–02 Tuesday Vol. 67 No. 78 April 23, 2002 Pages 19635–20004
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1 II Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002
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2 III
Contents Federal Register Vol. 67, No. 78
Tuesday, April 23, 2002
Agriculture Department PROPOSED RULES PROPOSED RULES Federal Acquisition Regulation (FAR): Highly erodible land and wetland conservation: Compensation cost principle, 19951–19954 Categorical minimal effect exemptions, 19699–19710 Education Department Broadcasting Board of Governors NOTICES Grants and cooperative agreements; availability, etc.: NOTICES Elementary and secondary education— Meetings; Sunshine Act, 19734 Carol M. White Physical Education Program, 19737– 19740 Centers for Disease Control and Prevention NOTICES Energy Department Agency information collection activities: See Federal Energy Regulatory Commission Submission for OMB review; comment request, 19759– NOTICES 19760 Committees; establishment, renewal, termination, etc.: Grants and cooperative agreements; availability, etc.: Advanced Scientific Computing Advisory Committee, National Cancer Prevention and Control Program, 19931– 19740 19950 Meetings: Alternative Technologies to Incineration Stakeholder Coast Guard Forum; correction, 19809 RULES Secretary of Energy Advisory Board, 19740–19741 Load lines: Great Lakes— Environmental Protection Agency Lake Michgan; river barges; limited service domestic RULES voyages, 19685–19693 Air quality implementation plans; approval and Ports and waterways safety: promulgation; various States: Gulf of Alaska, Narrow Cape, Kodiak Island, AK; safety California, 19682–19685 zone, 19674–19676 PROPOSED RULES Lake Erie— Air quality implementation plans; approval and Toledo, OH; security zone, 19673–19674 promulgation; various States: Lake Michigan— California, 19730 Chicago Captain of Port Zone, IL; security zones, NOTICES 19676–19678 Reports and guidance documents; availability, etc.: PROPOSED RULES Clean Air Act grandfathered sources; Federally permitted Bulk dangerous cargoes: release definition, 19750–19752 Barges carrying liquid hazardous material; withdrawn, Superfund program: 19730 Prospective purchaser agreements— Ports and waterways safety: Leeds Silver Reclamation Site, UT, 19752 Branford Harbor, CT; safety zone, 19728–19729 NOTICES Executive Office of the President Reports and guidance documents; availability, etc.: See Presidential Documents Merchant mariners; proficiency in medical first aid; Federal Aviation Administration assessment through demonstrations, 19792–19793 RULES Airworthiness directives: Commerce Department Airbus, 19650–19657, 19659–19661 See International Trade Administration Airbus; correction, 19810 See National Institute of Standards and Technology Boeing, 19641–19644, 19661–19663 Bombardier, 19644–19646 Consumer Product Safety Commission Cessna; correction, 19809–19810 NOTICES Eurocopter France, 19640–19641 Meetings: McDonnell Douglas, 19637–19640 Commission agenda and priorities; hearing, 19736–19737 PIAGGIO AERO INDUSTRIES S.p.A., 19657–19659 Pratt & Whitney, 19663–19666 Customs Service Schweizer Aircraft Corp., 19646–19650 RULES Federal airways, 19666–19667 North American Free Trade Agreement (NAFTA): Standard instrument approach procedures, 19667–19671 Preferential tariff treatment and other provisions; PROPOSED RULES implementation Class E airspace, 19710–19713 Correction, 19810 NOTICES Advisory circulars; availability, etc.: Defense Department Certification basis of changed aeronautical products; See Navy Department establishment, 19793–19794
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Environmental statements; notice of intent: Federal Motor Carrier Safety Administration Panama City-Bay County International Airport, FL, NOTICES 19794–19795 Motor carrier safety standards: Exemption petitions; summary and disposition, 19795– Driver qualifications— 19796 Adams, Louis N., et al.; vision requirement exemptions, Meetings: 19798–19800 Aviation Rulemaking Advisory Committee, 19796–19797 Passenger facility charges; applications, etc.: Federal Railroad Administration McKeller-Sipes Airport, TN, 19797–19798 RULES Railroad safety: Federal Communications Commission Passenger equipment safety standards, 19969–19995 RULES Federal Reserve System Common carrier services: NOTICES Federal-State Joint Board on Universal Service— Agency information collection activities: Interstate Common Line Support mechanism; data Reporting and recordkeeping requirements, 19755–19757 collection and filing procedures; correction, 19809 Banks and bank holding companies: Digital television stations; table of assignments: Change in bank control, 19757 Florida, 19693 PROPOSED RULES Formations, acquisitions, and mergers, 19757–19758 Television broadcasting: Permissible nonbanking activities, 19758 Noncommercial educational broadcast station applicants; Meetings; Sunshine Act, 19758 comparative standards reexamination, 19732–19733 NOTICES Financial Management Service Agency information collection activities: See Fiscal Service Proposed collection; comment request, 19752–19754 Common carrier services: Fiscal Service RCC Holdings, Inc.; telecommunication carrier NOTICES designation for Alabama; petition; comment request, Surety companies acceptable on Federal bonds: 19754–19755 Commercial Casualty Insurance Co. of North Carolina, 19804–19805 DaimlerChrysler Insurance Co., 19805 Federal Contract Compliance Programs Office Employers Insurance Co. of Wausau, 19805 NOTICES Pacific Indemnity Insurance Co., 19805–19806 Contracts; eligible bidders: Statewide Insurance Co.; termination, 19806 Associated Grocers, Inc., 19776 Fish and Wildlife Service Federal Energy Regulatory Commission RULES NOTICES Endangered and threatened species: Electric rate and corporate regulation filings: Critical habitat designations— American Electric Power Co. et al., 19743–19745 San Bernardino kangaroo rat, 19811–19845 Canadian Niagara Power Co., Ltd., et al., 19745–19746 NOTICES Cinergy Services, Inc., 19746 Agency information collection activities: Midwest Independent Transmission System Operator, Submission for OMB review; comment request, 19771– Inc., et al., 19746–19747 19773 PH Generating Statutory Trust B et al., 19747–19749 Meetings: Food and Drug Administration Interstate natural gas infrastructure; emergency NOTICES reconstruction; conference, 19749–19750 Reports and guidance documents; availability, etc.: Natural gas; emergency allocation; conference, 19750 Advisory committees; annual reports, 19760–19761 Senior Executive Service: Performance Review Board; membership, 19750 General Services Administration Applications, hearings, determinations, etc.: PROPOSED RULES Central New York Oil & Gas Co., LLC, 19741 Federal Acquisition Regulation (FAR): Horizon Pipeline Co., LLC, 19741 Compensation cost principle, 19951–19954 NOTICES Midwestern Gas Transmission Co., 19741–19742 Agency information collection activities: Ontario Energy Trading International Corp., 19742 Proposed collection; comment request, 19758–19759 Sinclair Oil Corp., 19742 Southern California Edison Co., 19742–19743 Health and Human Services Department Tennessee Gas Pipeline Co., 19743 See Centers for Disease Control and Prevention See Food and Drug Administration Federal Maritime Commission See Health Resources and Services Administration PROPOSED RULES See Indian Health Service Passenger vessel financial responsibility: See Substance Abuse and Mental Health Services Transportation nonperformance; financial responsibility Administration requirements NOTICES Self-insurance and sliding scale discontinuance and Agency information collection activities: guarantor limitations, 19730–19732 Proposed collection; comment request, 19759
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Meetings: NOTICES Vital and Health Statistics National Committee, 19759 Meetings: Advisory Council Health Resources and Services Administration Space Flight Advisory Committee, 19778 NOTICES Grants and cooperative agreements; availability, etc.: National Credit Union Administration Ryan White CARE Act Title III Early Intervention NOTICES Services Program, 19761 Reports and guidance documents; availability, etc.: Supervisory Review Committee guidelines, 19778–19779 Housing and Urban Development Department NOTICES National Highway Traffic Safety Administration Regulatory waiver requests; quarterly listing, 19955–19968 RULES Motor vehicle safety standards: Immigration and Naturalization Service Defective and noncompliant motor vehicles and items of NOTICES motor vehicle equipment; sale and lease limitations, Agency information collection activites: 19693–19698 Proposed collection; comment request, 19773 NOTICES Agency information collection activities: Agency information collection activities: Proposed collection; comment request, 19773–19776 Proposed collection; comment request, 19800–19801 Motor vehicle safety standards; exemption petitions, etc.: Indian Health Service International Truck & Engine Corp; denied, 19801–19802 NOTICES Mazda Motor Corp., 19802–19803 Grant and cooperative agreement awards: Volkswagen of America, Inc., 19803–19804 Indian Health Care Scholarship Program; recipients list, 19761–19769 National Indian Gaming Commission PROPOSED RULES Interior Department Management contract provisions: See Fish and Wildlife Service Minimum internal control standards, 19713 See National Indian Gaming Commission NOTICES Agency information collection activities: National Institute of Corrections Proposed collection; comment request, 19770–19771 NOTICES Watches and watch movements; allocation of duty- Meetings: exemptions: Advisory Board, 19776 Virgin Islands; correction, 19735 National Institute of Standards and Technology Internal Revenue Service NOTICES PROPOSED RULES Meetings: Excise taxes: Advanced Technology Program, 19735–19736 Pension excise taxes; future benefit accrual rate; significant reduction, 19713–19727 Navy Department NOTICES NOTICES Agency information collection activities: Inventions, Government-owned; availability for licensing, Proposed collection; comment request, 19806–19807 19737 International Trade Administration Nuclear Regulatory Commission NOTICES Antidumping: NOTICES Stainless steel plate in coils from— Agency information collection activities: Korea, 19734–19735 Submission for OMB review; comment request, 19779– Watches and watch movements; allocation of duty- 19780 exemptions: Meetings: Virgin Islands; correction, 19735 Reactor Safeguards Advisory Committee, 19781–19782 Meetings; Sunshine Act, 19782 Justice Department Applications, hearings, determinations, etc.: Centennial Engineering & Research, Inc., 19780–19781 See Immigration and Naturalization Service See National Institute of Corrections Occupational Safety and Health Administration Labor Department NOTICES See Federal Contract Compliance Programs Office Agency information collection activities: See Occupational Safety and Health Administration Proposed collection; comment request, 19776–19777 See Pension and Welfare Benefits Administration Pension and Welfare Benefits Administration National Aeronautics and Space Administration NOTICES PROPOSED RULES Meetings: Federal Acquisition Regulation (FAR): Employee Welfare and Pension Benefit Plans Advisory Compensation cost principle, 19951–19954 Council, 19777–19778
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Presidential Documents See Federal Aviation Administration PROCLAMATIONS See Federal Motor Carrier Safety Administration Special observances: See Federal Railroad Administration National Crime Victims’ Rights Week (Proc. 7543), See National Highway Traffic Safety Administration 19635–19636 Treasury Department Public Debt Bureau See Customs Service See Fiscal Service See Fiscal Service See Internal Revenue Service Public Health Service See Centers for Disease Control and Prevention Veterans Affairs Department See Food and Drug Administration RULES See Health Resources and Services Administration National Practitioner Data Bank; participation policy, See Indian Health Service 19678–19682 See Substance Abuse and Mental Health Services NOTICES Administration Agency information collection activities: Proposed collection; comment request, 19807–19808 Securities and Exchange Commission RULES Veterans Employment and Training Service Investment companies: NOTICES Insurance company separate accounts registered as unit Service to veterans; State Employment Security Agencies; invesment trusts offering variable life insurance performance measures, 19997–20004 policies; registration form, 19847–19884 Securities: Equity security; definition amended, 19671–19673 Separate Parts In This Issue PROPOSED RULES Investment companies: Part II Insurance company separate accounts registered as unit Interior Department, Fish and Wildlife Service, 19811– investment trusts offering variable annuity contracts; 19845 costs and expenses disclosure, 19885–19893 Securities: Part III Annual and quarterly reports; acceleration of periodic Securities and Exchange Commission, 19847–19884 filing dates and disclosure concerning website access to reports, 19895–19912 Part IV Management transactions; Form 8-K disclosure, 19913– Securities and Exchange Commission, 19885–19893 19930 NOTICES Part V Agency information collection activities: Securities and Exchange Commission, 19895–19912 Submission for OMB review; comment request, 19782– 19783 Part VI Self-regulatory organizations; proposed rule changes: Securities and Exchange Commission, 19913–19930 American Stock Exchange LLC, 19783–19784 Chicago Stock Exchange, Inc., 19784–19786 Part VII International Securities Exchange LLC, 19786–19787 Public Health Service, Centers for Disease Control and National Association of Securities Dealers, Inc., 19787– Prevention, 19931–19950 19791
Small Business Administration Part VIII Defense Department; General Services Administration; RULES Small business size standards: National Aeronautics and Space Administration, North American Industry Classification System; Line- 19951–19954 Haul Railroads; correction, 19637 Part IX State Department Housing and Urban Development Department, 19955–19968 NOTICES Agency information collection activities: Part X Submission for OMB review; comment request, 19791– Transportation Department, Federal Railroad 19792 Administration, 19969–19995
Substance Abuse and Mental Health Services Part XI Administration Department of Labor, Veterans Employment and Training NOTICES Service, 19997–20004 Grants and cooperative agreements; availability, etc.: Older adults; meeting mental health services needs, 19769–19770 Reader Aids Consult the Reader Aids section at the end of this issue for Transportation Department phone numbers, online resources, finding aids, reminders, See Coast Guard and notice of recently enacted public laws.
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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.
3 CFR 48 CFR Proclamations: Proposed Rules: 7543...... 19635 16...... 19952 7 CFR 22...... 19952 31...... 19952 Proposed Rules: 37...... 19952 12...... 19699 52...... 19952 13 CFR 49 CFR 121...... 19637 216...... 19970 14 CFR 238...... 19970 39 (14 documents) ...... 19637, 573...... 19693 19640, 19641, 19644, 19646, 50 CFR 19650, 19652, 19655, 19657, 17...... 19812 19659, 19661, 19663, 19809, 19810 71...... 19666 97 (2 documents) ...... 19667, 19669 Proposed Rules: 71 (2 documents) ...... 19710, 19711 17 CFR 230 (2 documents) ...... 19671, 19848 239...... 19848 240...... 19671 270...... 19848 274...... 19848 Proposed Rules: 229...... 19896 230 (2 documents) ...... 19886, 19914 239...... 19914 240...... 19896 249 (2 documents) ...... 19896, 19914 274...... 19886 19 CFR 181...... 19810 25 CFR Proposed Rules: 542...... 19713 26 CFR Proposed Rules: 1...... 19713 54...... 19713 602...... 19713 33 CFR 165 (3 documents) ...... 19673, 19674, 19676 Proposed Rules: 165...... 19728 38 CFR 46...... 19678 40 CFR 52 (2 documents) ...... 19682, 19685 Proposed Rules: 52...... 19730 46 CFR 45...... 19685 Proposed Rules: 151...... 19730 540...... 19730 47 CFR 54...... 19809 73...... 19693 Proposed Rules: 73...... 19732
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Federal Register Presidential Documents Vol. 67, No. 78
Tuesday, April 23, 2002
Title 3— Proclamation 7543 of April 18, 2002
The President National Crime Victims’ Rights Week, 2002
By the President of the United States of America
A Proclamation
Thirty years ago, advocates from some of the most crime-ridden neighbor- hoods of St. Louis, San Francisco, and Washington, D.C., founded the Na- tion’s first assistance programs for crime victims. These centers were estab- lished in communities where violence was common, and they were clear about their mission: to bring help, hope, and healing to those who had suffered the effects of crime. The creation of these victim-assistance programs launched a movement that brought domestic violence shelters, homicide victim support groups, and rape crisis centers to help victims in cities and towns throughout the United States. The crime victims’ rights movement also brought changes in the way the criminal justice system treats and interacts with crime victims. In many cases, crime victims began to be treated with greater respect and to play an important role in criminal justice proceedings. In 1982, President Ronald Reagan assembled a task force of nine national leaders to travel the country and listen to service providers, criminal justice professionals, and victims. The Task Force’s Final Report listed 68 rec- ommendations for meeting victims’ needs, including the need for a Federal constitutional amendment. The momentum generated by this report helped spur passage of the Victims of Crime Act of 1984, which now supports thousands of assistance programs throughout the Nation. The Victim and Witness Protection Act of 1982 and other laws have given victims of Federal crimes many important rights. All 50 States have now passed victims’ rights laws, and more than half the States have amended their constitutions to guarantee rights for crime victims. However, more remains to be done to secure victims’ rights. I support a Federal Constitutional Amendment to protect the rights of victims of violent crime. Our Nation has come to realize the tragic toll that crime takes, and we have developed the resources to ease crime’s physical, emotional, and finan- cial impact. This support network, which was already in place on September 11, made us better prepared to deal with the unspeakable pain and tragedy inflicted by the terrorist attacks. Along with the many firefighters, law en- forcement officers, paramedics, and rescue workers who responded in New York, Washington, D.C., and Pennsylvania, hundreds of counselors, chap- lains, social workers, volunteers, and victim service providers came together for the common purpose of helping the victims, the families, and our Nation. My Administration has made the fight against crime a top priority. But when a crime does occur, I am dedicated to providing assistance and comfort to victims and to ensuring that the rights of victims are protected. At the time of their great trauma, crime victims deserve nothing less than our complete support. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim April 21 through April
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27, 2002, as National Crime Victims’ Rights Week. I encourage every commu- nity to embrace the cause of victims’ rights and services and to advance them in all sectors of our society. IN WITNESS WHEREOF, I have hereunto set my hand this eighteenth day of April, in the year of our Lord two thousand two, and of the Independence of the United States of America the two hundred and twenty-sixth. W
[FR Doc. 02–10086 Filed 4–22–02; 8:45 am] Billing code 3195–01–P
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Rules and Regulations Federal Register Vol. 67, No. 78
Tuesday, April 23, 2002
This section of the FEDERAL REGISTER Corrected NAICS 482111 482—Rail Transportation, revise the contains regulatory documents having general This amendment corrects the size entry for 482111 to read as follows: applicability and legal effect, most of which are keyed to and codified in the Code of standard for NAICS 482111, Line-Haul § 121.201 What size standards has SBA Federal Regulations, which is published under Railroads. The May 15, 2000, final rule identified by North American Industry 50 titles pursuant to 44 U.S.C. 1510. represented the size standard as $500 Classification System codes? million. The correct size standard was * * * * * The Code of Federal Regulations is sold by and is 1,500 employees. In the the Superintendent of Documents. Prices of September 5, 2000, correction, SBA new books are listed in the first FEDERAL SMALL BUSINESS SIZE STANDARDS BY removed the dollar sign but overlooked NAICS INDUSTRY REGISTER issue of each week. correcting the numerical standard to 1,500 employees. Description (N.E.C. = Size standard in SMALL BUSINESS ADMINISTRATION Justification for This Correction NAICS Not Else- number of em- codes where Clas- ployees or millions 13 CFR Part 121 SBA had proposed to adopt NAICS as of dollars a basis for size standards on October 22, sified) 1999, (64 FR 57187–57286). In the RIN 3245–AE07 proposed rule SBA set five guidelines ******* Small Business Size Regulations; Size for establishing size standards based on Subsector 482—Rail Transportation Standards and the North American NAICS. The first guideline stated that if 482111 ... Line-Haul 1,500 Railroads. Industry Classification System; the NAICS industry were related to only Amendment one Standard Industrial Classification (SIC) system industry or to a part of one * * * * * AGENCY: Small Business Administration SIC industry, then the size standard Gary M. Jackson, would be the same for the NAICS (SBA). Assistant Administrator for Size Standards. industry as it was for the SIC industry. ACTION: Correcting Amendment. The size standard for SIC 4011, [FR Doc. 02–9797 Filed 4–22–02; 8:45 am] Railroads, Line-Haul Operating, was BILLING CODE 8025–01–P SUMMARY: This amendment corrects the 1,500 employees. NAICS 482111 is small business size standard for North related to SIC 4011 in its entirety, and American Industry Classification therefore, SBA’s proposed rule applied DEPARTMENT OF TRANSPORTATION System (NAICS) code 482111, Line-Haul the same 1,500 employee size standard Railroads. The correct size standard is to NAICS 482111. As stated above, there Federal Aviation Administration 1,500 employees. This is a technical were errors that occurred in printing of correction to the final rule correction the final rule, and SBA overlooked 14 CFR Part 39 that the Small Business Administration correcting this particular size standard. (SBA) published in the Federal Register SBA is therefore amending the [Docket No. 2002–NM–37–AD; Amendment on September 5, 2000. published size standard for NAICS 39–12717; AD 2002–08–09] DATES: 482111 to 1,500 employees. Effective on April 23, 2002. RIN 2120–AA64 FOR FURTHER INFORMATION CONTACT: Carl List of Subjects in 13 CFR Part 121 Airworthiness Directives; McDonnell Jordan, Office of Size Standards, (202) Administrative practice and Douglas Model DC–9–31 Airplane 205–6618. procedure, Government procurement, SUPPLEMENTARY INFORMATION: SBA Government property, Grant programs— AGENCY: Federal Aviation published what it believed was a business, Loan programs—business, Administration, DOT. corrected table of small business size Reporting and recordkeeping ACTION: Final rule; request for standards based on industries as they requirements, Small businesses. comments. are defined in NAICS on September 5, For the reasons stated in the 2000 (65 FR 53533–53558). That table preamble, SBA corrects 13 CFR part 121 SUMMARY: This amendment adopts a updated and replaced the table included by making the following correcting new airworthiness directive (AD) that is in the final rule SBA published in the amendment: applicable to one McDonnell Douglas Federal Register on May 15, 2000 (65 Model DC–9–31 airplane. This action FR 30836–30863). The table of size PART 121—SMALL BUSINESS SIZE requires an inspection to determine if a standards in the May 15, 2000, final rule REGULATIONS certain alternating current (AC) cross-tie included a number of errors that relay is installed; replacement of a occurred during the printing process. 1. The authority citation for part 121 certain AC cross-tie relay with a new AC Because the errors were significant in continues to read as follows: cross-tie relay; and repetitive cleaning, nature and number, SBA believed that Authority: 15 U.S.C. 632(a), 634(b)(6), inspection, repair, and testing of a merely listing the corrections was not 637(a), 644(c), and 662(5); and Sec. 304, Pub. certain AC cross-tie relay. This action is sufficient. Therefore, on September 5, L. 103–403, 108 Stat. 4175, 4188. necessary to prevent AC cross-tie relay 2000, SBA published the new table to 2. In § 121.201, in the table ‘‘Small failures, which could result in internal replace the table found in the May 15, Business Size Standards by NAICS arcing of the relay and smoke and/or fire 2000, final rule. Industry,’’ under the heading Subsector in the cockpit and cabin. This action is
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intended to address the identified DC–9 series airplane involving smoke in prevent AC cross-tie relay failures, unsafe condition. the cockpit and cabin. Investigation of which could result in internal arcing of DATES: Effective May 8, 2002. the incident revealed that the smoke the relay and smoke and/or fire in the The incorporation by reference of was caused by an internal phase-to- cockpit and cabin. This AD requires Boeing Alert Service Bulletin DC9– phase short circuit of the alternating accomplishment of the actions specified 24A193, Revision 01, dated January 15, current (AC) cross-tie relay resulting in Revision 01 of the service bulletin 2002, is approved by the Director of the from migration of metallic dust from described previously, except as Federal Register as of May 8, 2002. electrical contact wear and discussed below. If a certain AC cross- The incorporation by reference of accumulation of this dust. Operators tie relay is installed, this AD also Sundstrand (Westinghouse) Overhaul have reported other instances of AC requires cleaning, inspecting, repairing, Manual 24–20–46, Revision 8, dated cross-tie relay failure causing arcing in and testing the relay, per Sundstrand August 15, 1983, was approved the electrical panel area. An internal (Westinghouse) Overhaul Manual 24– previously by the Director of the Federal phase-to-phase short circuit of the AC 20–46, Revision 8, dated August 15, Register as of October 26, 2001 (66 FR cross-tie relay caused by migration and 1983. 51857, October 11, 2001). accumulation of metallic dust, if not Comments for inclusion in the Rules corrected, could result in internal arcing Differences Between This Rule and Docket must be received on or before of the relay and smoke and/or fire in the Service Bulletin June 24, 2002. cockpit and cabin. Operators should note that, although the procedures described in Boeing ADDRESSES: Submit comments in Other Relevant Rulemaking triplicate to the Federal Aviation Alert Service Bulletin DC9–24A193, Administration (FAA), Transport The FAA previously has issued AD Revision 01, specify maintenance of P/ Airplane Directorate, ANM–114, 2001–20–15, amendment 39–12463 (66 N 9008D09 series when it is beyond Attention: Rules Docket No. 2002–NM– FR 51857, October 11, 2001). That AD service interval limits, this AD does not 37–AD, 1601 Lind Avenue, SW., applies to certain Model DC–9 series require repetitive maintenance of AC Renton, Washington 98055–4056. airplanes and MD–88 airplanes, and cross-tie relays with that P/N because Comments may be inspected at this requires an inspection to determine if a the unsafe condition has not been found location between 9:00 a.m. and 3:00 certain AC cross-tie relay is installed; on AC cross-tie relays with that P/N. replacement of a certain AC cross-tie p.m., Monday through Friday, except Determination of Rule’s Effective Date Federal holidays. Comments may be relay with a new AC cross-tie relay; and Since a situation exists that requires submitted via fax to (425) 227–1232. repetitive cleaning, inspection, repair, the immediate adoption of this Comments may also be sent via the and testing of a certain AC cross-tie regulation, it is found that notice and Internet using the following address: 9- relay. That AD refers to Boeing Alert opportunity for prior public comment [email protected]. Comments Service Bulletin DC9–24A193, dated hereon are impracticable, and that good sent via fax or the Internet must contain July 31, 2001, as an appropriate source cause exists for making this amendment ‘‘Docket No. 2002–NM–37–AD’’ in the of service information for effective in less than 30 days. subject line and need not be submitted accomplishment of certain required in triplicate. Comments sent via the actions. Comments Invited Internet as attached electronic files must Explanation of Relevant Service Although this action is in the form of be formatted in Microsoft Word 97 for Information a final rule that involves requirements Windows or ASCII text. Since the issuance of AD 2001–20–15, affecting flight safety and, thus, was not The service information referenced in the FAA has reviewed and approved preceded by notice and an opportunity this AD may be obtained from Boeing Boeing Alert Service Bulletin DC9– for public comment, comments are Commercial Aircraft Group, Long Beach 24A193, Revision 01, dated January 15, invited on this rule. Interested persons Division, 3855 Lakewood Boulevard, 2002. The procedures described in are invited to comment on this rule by Long Beach, California 90846, Revision 01 of the service bulletin are submitting such written data, views, or Attention: Data and Service identical to those in the original issue of arguments as they may desire. Management, Dept. C1–L5A (D800– the service bulletin. However, the Communications shall identify the 0024). This information may be effectivity listing of Revision 01 of the Rules Docket number and be submitted examined at the FAA, Transport service bulletin includes one additional in triplicate to the address specified Airplane Directorate, 1601 Lind Model DC–9–31 airplane, fuselage under the caption ADDRESSES. All Avenue, SW., Renton, Washington; at number (F/N) 0705, which is not listed communications received on or before the FAA, Los Angeles Aircraft in the original issue of the service the closing date for comments will be Certification Office, 3960 Paramount bulletin. Because the airplane with F/N considered, and this rule may be Boulevard, Lakewood, California; or at 0705 may be subject to the same unsafe amended in light of the comments the Office of the Federal Register, 800 condition as the airplanes identified in received. Factual information that North Capitol Street, NW., suite 700, AD 2001–20–15, the FAA has supports the commenter’s ideas and Washington, DC. determined that it is necessary to issue suggestions is extremely helpful in FOR FURTHER INFORMATION CONTACT: a new AD to require accomplishment of evaluating the effectiveness of the AD Elvin Wheeler, Aerospace Engineer, the actions described in Boeing Alert action and determining whether Systems and Equipment Branch, ANM– Service Bulletin DC9–24A193, Revision additional rulemaking action would be 130L, FAA, Los Angeles Aircraft 01, on that airplane. needed. Certification Office, 3960 Paramount Submit comments using the following Boulevard, Lakewood, California Explanation of the Requirements of the format: 90712–4137; telephone (562) 627–5344; Rule • Organize comments issue-by-issue. fax (562) 627–5210. Since an unsafe condition has been For example, discuss a request to SUPPLEMENTARY INFORMATION: The FAA identified that is likely to exist or change the compliance time and a has previously received reports of an develop on other airplanes of the same request to change the service bulletin incident on a McDonnell Douglas Model type design, this AD is being issued to reference as two separate issues.
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• For each issue, state what specific Federal Aviation Regulations (14 CFR with a Sundstrand (Westinghouse) cross-tie change to the AD is being requested. part 39) as follows: relay, P/N 9008D09 series or 914F567–4, per • Include justification (e.g., reasons or the Accomplishment Instructions of Boeing PART 39—AIRWORTHINESS Alert Service Bulletin DC9–24A193, Revision data) for each request. 01, dated January 15, 2002. Comments are specifically invited on DIRECTIVES the overall regulatory, economic, Maintenance of Sundstrand (Westinghouse) 1. The authority citation for part 39 AC Cross-Tie Relay, P/N 914F567–4 environmental, and energy aspects of continues to read as follows: the rule that might suggest a need to (c) If any Sundstrand (Westinghouse) AC modify the rule. All comments Authority: 49 U.S.C. 106(g), 40113, 44701. cross-tie relay, P/N 914F567–4, is found submitted will be available, both before installed during the inspection required by § 39.13 [Amended] paragraph (a) of this AD, clean, inspect, and after the closing date for comments, 2. Section 39.13 is amended by repair, and test the relay, per Sundstrand in the Rules Docket for examination by (Westinghouse) Overhaul Manual 24–20–46, interested persons. A report that adding the following new airworthiness directive: Revision 8, dated August 15, 1983, at the summarizes each FAA-public contact later of the times specified in paragraph (c)(1) concerned with the substance of this AD 2002–08–09 McDonnell Douglas: and (c)(2) of this AD, except as provided by will be filed in the Rules Docket. Amendment 39–12717. Docket 2002– paragraph (d) of this AD. Commenters wishing the FAA to NM–37–AD. (1) Within 90 days after the effective date acknowledge receipt of their comments Applicability: Model DC–9–31 airplane, of this AD. fuselage number 0705, certificated in any submitted in response to this rule must (2) Within 7,000 flight hours after category. installation of the Sundstrand submit a self-addressed, stamped Note 1: The requirements of this AD are (Westinghouse) AC cross-tie relay, postcard on which the following identical to those in AD 2001–20–15, P/N 914F567–4. statement is made: ‘‘Comments to amendment 39–12463, which applies to (d) For airplanes on which the flight hours Docket Number 2002–NM–37– AD.’’ Model DC–9 series airplanes and MD–88 since installation of any Sundstrand The postcard will be date stamped and airplanes listed in Boeing Alert Service (Westinghouse) AC cross-tie relay, P/N returned to the commenter. Bulletin DC9–24A193, dated July 31, 2001. 914F567–4, cannot be determined: Clean, inspect, repair, and test within 90 days after Regulatory Impact Note 2: This AD applies to the airplane the effective date of this AD. identified in the preceding applicability The regulations adopted herein will provision, regardless of whether it has been Repetitive Maintenance of Sundstrand not have a substantial direct effect on modified, altered, or repaired in the area (Westinghouse) AC Cross-Tie Relay, P/N the States, on the relationship between subject to the requirements of this AD. For 914F567–4 the national Government and the States, an airplane that has been modified, altered, (e) Repeat the cleaning, inspection, repair, or on the distribution of power and or repaired so that the performance of the and test required by paragraphs (c) and (d) responsibilities among the various requirements of this AD is affected, the of this AD on all Sundstrand (Westinghouse) owner/operator must request approval for an AC cross-tie relays, P/N 914F567–4, installed levels of government. Therefore, it is alternative method of compliance in determined that this final rule does not per paragraphs (b) and (c) of this AD at accordance with paragraph (f) of this AD. The intervals not to exceed 7,000 flight hours. have federalism implications under request should include an assessment of the Executive Order 13132. effect of the modification, alteration, or repair Alternative Methods of Compliance The FAA has determined that this on the unsafe condition addressed by this (f) An alternative method of compliance or regulation is an emergency regulation AD; and, if the unsafe condition has not been adjustment of the compliance time that that must be issued immediately to eliminated, the request should include provides an acceptable level of safety may be correct an unsafe condition in aircraft, specific proposed actions to address it. used if approved by the Manager, Los and that it is not a ‘‘significant Compliance: Required as indicated, unless Angeles Aircraft Certification Office (ACO), regulatory action’’ under Executive accomplished previously. FAA. Operators shall submit their requests Order 12866. It has been determined To prevent internal arcing of the through an appropriate FAA Principal alternating current (AC) relay and smoke Maintenance Inspector, who may add further that this action involves an and/or fire in the cockpit and cabin, comments and then send it to the Manager, emergency regulation under DOT accomplish the following: Los Angeles ACO. Regulatory Policies and Procedures (44 Inspection Note 4: Information concerning the FR 11034, February 26, 1979). If it is existence of approved alternative methods of determined that this emergency (a) Within 90 days after the effective date compliance with this AD, if any, may be regulation otherwise would be of this AD, perform a one-time inspection to obtained from the Los Angeles ACO. significant under DOT Regulatory determine if an AC cross-tie relay, part Policies and Procedures, a final number (P/N) 914F567–3, or Sundstrand Special Flight Permits (Westinghouse) AC cross-tie relay, P/N (g) Special flight permits may be issued in regulatory evaluation will be prepared 914F567–4, is installed, per Boeing Alert and placed in the Rules Docket. A copy accordance with sections 21.197 and 21.199 Service Bulletin DC9–24A193, Revision 01, of the Federal Aviation Regulations (14 CFR of it, if filed, may be obtained from the dated January 15, 2002. Rules Docket at the location provided 21.197 and 21.199) to operate the airplane to Note 3: Inspections and replacements done a location where the requirements of this AD under the caption ADDRESSES. before the effective date of this AD per can be accomplished. List of Subjects in 14 CFR Part 39 Boeing Alert Service Bulletin DC9–24A193, dated July 31, 2001, are acceptable for Incorporation by Reference Air transportation, Aircraft, Aviation compliance with the corresponding actions (h) The actions shall be done in accordance safety, Incorporation by reference, required by paragraphs (a) and (b) of this AD. with Boeing Alert Service Bulletin DC9– Safety. 24A193, Revision 01, dated January 15, 2002; Replacement of Any AC Cross-Tie Relay, and Sundstrand (Westinghouse) Overhaul Adoption of the Amendment P/N 914F567–3 Manual 24–20–46, Revision 8, dated August (b) If any AC cross-tie relay, P/N 914F567– 15, 1983; as applicable. Accordingly, pursuant to the 3, is found installed during the inspection (1) The incorporation by reference of authority delegated to me by the required by paragraph (a) of this AD, within Boeing Alert Service Bulletin DC9–24A193, Administrator, the Federal Aviation 90 days after the effective date of this AD, Revision 01, dated January 15, 2002 is Administration amends part 39 of the replace AC cross-tie relay, P/N 914F567–3, approved by the Director of the Federal
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Register in accordance with 5 U.S.C. 552(a) tie bars. This amendment is prompted ensure the continued airworthiness of and 1 CFR part 51. by an accident involving an ECF Model these helicopters in France. (2) The incorporation by reference of SA341G helicopter due to the failure of These helicopter models are Sundstrand (Westinghouse) Overhaul a tie bar. The actions specified by this manufactured in France and are type Manual 24–20–46, Revision 8, dated August certificated for operation in the United 15, 1983, was approved previously by the AD are intended to prevent failure of a Director of the Federal Register in accordance tie bar, loss of a main rotor blade, and States under the provisions of 14 CFR with 5 U.S.C. 552(a) and 1 CFR part 51, as subsequent loss of control of the 21.29 and the applicable bilateral of October 26, 2001 (66 FR 51857, October helicopter. agreement. Pursuant to the applicable 11, 2001). bilateral agreement, the DGAC has kept DATES: Effective May 8, 2002. (3) Copies may be obtained from Boeing the FAA informed of the situation Commercial Aircraft Group, Long Beach Comments for inclusion in the Rules described above. The FAA has Division, 3855 Lakewood Boulevard, Long Docket must be received on or before examined the findings of the DGAC, Beach, California 90846, Attention: Data and June 24, 2002. reviewed all available information, and Service Management, Dept. C1–L5A (D800– ADDRESSES: Submit comments in determined that AD action is necessary 0024); and Hamilton Sundstrand, 4747 triplicate to the Federal Aviation for products of these type designs that Harrison Avenue, P.O. Box 7002, Rockford, Administration (FAA), Office of the IL 61125–7002; as applicable. Copies may be are certificated for operation in the inspected at the FAA, Transport Airplane Regional Counsel, Southwest Region, United States. Directorate, 1601 Lind Avenue, SW., Renton, Attention: Rules Docket No. 2001–SW– This unsafe condition is likely to exist Washington; or at the FAA, Los Angeles 72–AD, 2601 Meacham Blvd., Room or develop on other ECF model Aircraft Certification Office, 3960 Paramount 663, Fort Worth, Texas 76137. You may helicopters of these same type designs. Boulevard, Lakewood, California; or at the also send comments electronically to Therefore, this AD supersedes AD 2001– Office of the Federal Register, 800 North the Rules Docket at the following 19–51 to retain the requirement to Capitol Street, NW., suite 700, Washington, address: [email protected]. remove certain part-numbered tie bars, DC. FOR FURTHER INFORMATION CONTACT: Gary to add the requirement to remove Effective Date Roach, Aviation Safety Engineer, FAA, certain other tie bars at specified (i) This amendment becomes effective on Rotorcraft Directorate, Rotorcraft intervals, and to revise the limitations May 8, 2002. Standards Staff, Fort Worth, Texas section of the maintenance manual by Issued in Renton, Washington, on April 12, 76193–0111, telephone (817) 222–5130, further reducing the life limit. The short 2002. fax (817) 222–5961. compliance time involved is required because the previously described Ali Bahrami, SUPPLEMENTARY INFORMATION: On critical unsafe condition can adversely Acting Manager, Transport Airplane September 21, 2001, the FAA issued an affect the structural integrity and Directorate, Aircraft Certification Service. Emergency AD (EAD) 2001–19–51 to controllability of the helicopter. [FR Doc. 02–9571 Filed 4–22–02; 8:45 am] require replacing each affected Therefore, the actions previously BILLING CODE 4910–13–U unairworthy tie bar, revising the mentioned are required before further limitations section of the maintenance flight, and this AD must be issued manual by adding a life limit for certain immediately. DEPARTMENT OF TRANSPORTATION tie bars, and specifying that certain tie Since a situation exists that requires bars are not approved for installation on the immediate adoption of this Federal Aviation Administration any helicopter. That EAD was published regulation, it is found that notice and in the Federal Register on November 23, opportunity for prior public comment 14 CFR Part 39 2001 (66 FR 58663) as Amendment 39– hereon are impracticable and that good [Docket No. 2001–SW–72–AD; Amendment 12508. Those actions were prompted by cause exists for making this amendment 39–12725; AD 2002–08–16] an accident involving an ECF Model effective in less than 30 days. SA341G helicopter due to the failure of The FAA estimates that 33 helicopters RIN 2120–AA64 a tie bar. The ECF Model SA342J and will be affected by this AD, that it will SA–360C helicopters have tie bars Airworthiness Directives; Eurocopter take approximately 8 work hours to identical to the one that failed on the France Model SA341G, SA342J, and replace the tie bars, and that the average ECF Model SA341G helicopter. Failure SA–360C Helicopters labor rate is $60 per work hour. of a tie bar could result in loss of a main Required parts will cost approximately AGENCY: Federal Aviation rotor blade and subsequent loss of $13,335 per helicopter, assuming all 3 Administration, DOT. control of the helicopter. tie bars are replaced. Based on these ACTION: Final rule; request for Since the issuance of that AD, the figures, the total cost impact of the AD comments. Direction Generale De L’Aviation Civile on U.S. operators is estimated to be (DGAC), the airworthiness authority for $445,895 ($13,815 per helicopter). SUMMARY: This amendment supersedes France, notified the FAA of another an existing airworthiness directive (AD) accident involving a Model SA341G Comments Invited for the specified Eurocopter France helicopter due to failure of the tie bar. Although this action is in the form of (ECF) model helicopters. That AD ECF has issued Alert Telex Nos. a final rule that involves requirements currently requires replacing each 01.29R1 and 01.39R1, both dated affecting flight safety and, thus, was not affected unairworthy main rotor head December 11, 2001, which declare preceded by notice and an opportunity torsion tie bar (tie bar) with an certain tie bars unairworthy and impose for public comment, comments are airworthy tie bar and revising the a 7-year life limit for certain other tie invited on this rule. Interested persons limitations section of the maintenance bars as a precautionary measure are invited to comment on this rule by manual by adding a life limit for certain pending further investigation. The submitting such written data, views, or tie bars. This amendment requires DGAC classified these telex alerts as arguments as they may desire. additional revisions to the limitations mandatory and issued AD Nos. 2001– Communications should identify the section of the maintenance manual by 587–041(A) R1 and 2001–588–047(A) Rules Docket number and be submitted further reducing the life limit for certain R1, both dated December 26, 2001, to in triplicate to the address specified
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under the caption ADDRESSES. All Adoption of the Amendment installation on any helicopter, remove before communications received on or before accumulating 7 years TIS, within 300 hours Accordingly, pursuant to the the closing date for comments will be TIS, or within 1 year, whichever occurs first. authority delegated to me by the considered, and this rule may be (4) For each tie bar manufactured in 1995 Administrator, the Federal Aviation or subsequent years with less than 7 years amended in light of the comments Administration amends part 39 of the TIS since initial installation on any received. Factual information that Federal Aviation Regulations (14 CFR helicopter, remove before accumulating 7 supports the commenter’s ideas and part 39) as follows: years TIS, within 600 hours TIS, or within 2 suggestions is extremely helpful in years, whichever occurs first. evaluating the effectiveness of the AD PART 39—AIRWORTHINESS Note 2: Eurocopter France (ECF) Alert action and determining whether DIRECTIVES Telex Nos. 01.29R1 and 01.39R1, both dated additional rulemaking action would be December 11, 2001, pertain to the subject of needed. 1. The authority citation for part 39 this AD. Comments are specifically invited on continues to read as follows: (c) This AD revises the limitations section the overall regulatory, economic, Authority: 49 U.S.C. 106(g), 40113, 44701. of the maintenance manual by adding to the environmental, and energy aspects of current life limit of 5000 hours TIS, the § 39.13 [Amended] following additional alternative life limits for the rule that might suggest a need to 2. Section 39.13 is amended by tie bars, P/N 341A31–4933–00 or 341A31– modify the rule. All comments 4933–01: submitted will be available in the Rules removing Amendment 39–12508, (1) Seven years TIS from initial installation Docket for examination by interested Docket No. 2001–SW–48–AD (66 FR on any helicopter or persons. A report that summarizes each 58663) and by adding a new (2) For tie bars manufactured before 1995, FAA-public contact concerned with the airworthiness directive (AD), a life limit of 300 hours TIS or 1 year, or substance of this AD will be filed in the Amendment 39–12725, to read as (3) For tie bars manufactured in 1995 or Rules Docket. follows: subsequent years, a life limit of 600 hours TIS or 2 years, whichever occurs first. 2002–08–16 Eurocopter France: Commenters wishing the FAA to (d) An alternative method of compliance or Amendment 39–12725. Docket No. acknowledge receipt of their mailed adjustment of the compliance time that 2001–SW–72–AD. Supersedes AD No. provides an acceptable level of safety may be comments submitted in response to this 2001–19–51, Amendment 39–12508, rule must submit a self-addressed, Docket No. 2001–SW–48–AD. used if approved by the Manager, Regulations stamped postcard on which the Group, Rotorcraft Directorate FAA. Operators Applicability: Model SA341G, SA342J, and shall submit their requests through an FAA following statement is made: SA–360C helicopters with a main rotor head ‘‘Comments to Docket No. 2001–SW– Principal Maintenance Inspector, who may torsion tie bar (tie bar), part number (P/N): concur or comment and then send it to the 72–AD.’’ The postcard will be date 341A31–4904–00, –01, –02, –03; Manager, Regulations Group. stamped and returned to the 341A31–4933–00, –01; Note 3: Information concerning the 360A31–1097–02, or –03, installed, commenter. existence of approved alternative methods of certificated in any category. The regulations adopted herein will compliance with this AD, if any, may be not have a substantial direct effect on Note 1: This AD applies to each helicopter obtained from the Regulations Group. identified in the preceding applicability the States, on the relationship between provision, regardless of whether it has been (e) Special flight permits will not be the national Government and the States, otherwise modified, altered, or repaired in issued. or on the distribution of power and the area subject to the requirements of this (f) This amendment becomes effective on responsibilities among the various AD. For helicopters that have been modified, May 8, 2002. levels of government. Therefore, it is altered, or repaired so that the performance Note 4: The subject of this AD is addressed determined that this final rule does not of the requirements of this AD is affected, the in Direction Generale De L’Aviation Civile have federalism implications under owner/operator must request approval for an (France) ADs 2001–587–041(A) R1 and 2001– 588–047(A) R1, both dated December 26, Executive Order 13132. alternative method of compliance in accordance with paragraph (d) of this AD. 2001. The FAA has determined that this The request should include an assessment of regulation is an emergency regulation the effect of the modification, alteration, or Issued in Fort Worth, Texas, on April 11, that must be issued immediately to repair on the unsafe condition addressed by 2002. correct an unsafe condition in aircraft, this AD; and if the unsafe condition has not Eric Bries, and that it is not a ‘‘significant been eliminated, the request should include Acting Manager, Rotorcraft Directorate, specific proposed actions to address it. regulatory action’’ under Executive Aircraft Certification Service. Order 12866. It has been determined Compliance: Required as indicated, unless [FR Doc. 02–9728 Filed 4–22–02; 8:45 am] accomplished previously. BILLING CODE 4910–13–P further that this action involves an To prevent failure of a tie bar, loss of a emergency regulation under DOT main rotor blade, and subsequent loss of Regulatory Policies and Procedures (44 control of the aircraft, accomplish the FR 11034, February 26, 1979). If it is following: DEPARTMENT OF TRANSPORTATION (a) Before further flight, remove each tie determined that this emergency Federal Aviation Administration regulation otherwise would be bar, P/N 341A31–4904–00, –01, –02, or –03; significant under DOT Regulatory or 360A31–1097–02 or –03, from service. (b) For each tie bar, P/N 341A31–4933–00 14 CFR Part 39 Policies and Procedures, a final or –01: regulatory evaluation will be prepared (1) Before further flight, determine the date [Docket No. 2002–NM–69–AD; Amendment and placed in the Rules Docket. A copy of initial installation on any helicopter using 39–12718; AD 2002–08–10] of it, if filed, may be obtained from the the date of manufacture if the date of Rules Docket at the location provided installation cannot be determined. RIN 2120–AA64 under the caption ADDRESSES. (2) For each tie bar with 7 or more years time-in-service (TIS) since initial installation Airworthiness Directives; Boeing List of Subjects in 14 CFR Part 39 on any helicopter, remove within 5 hours Model 747 Series Airplanes TIS. Air transportation, Aircraft, Aviation (3) For each tie bar manufactured before AGENCY: Federal Aviation safety, Safety. 1995 with less than 7 years TIS since initial Administration, DOT.
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ACTION: Final rule; request for SUPPLEMENTARY INFORMATION: The FAA the need for the corrective actions for comments. has received reports of broken alloy the alloy steel bolts. steel bolts on the body station (BS) 1480 Explanation of the Requirements of the SUMMARY: This amendment adopts a bulkhead splice on Boeing Model 747 Rule new airworthiness directive (AD) that is series airplanes. This splice connects applicable to certain Boeing Model 747 the upper and lower pieces of the BS Since an unsafe condition has been series airplanes. This action requires a 1480 bulkhead and the overwing identified that is likely to exist or one-time inspection to identify all alloy longeron. The maximum number of develop on other airplanes of the same steel bolts on the body station 1480 broken bolts found on an airplane was type design, this AD is being issued to bulkhead splice, and corrective action if 10; that airplane was shown to be detect and correct cracked or broken necessary. This action provides for unable to withstand limit load. Broken bolts on the BS 1480 bulkhead splice, optional terminating action for certain splice bolts were found on one airplane which could result in structural damage requirements of this AD. This action is with only 6,229 total flight cycles and and rapid depressurization of the necessary to detect and correct cracked 37,440 total flight hours. All of the airplane. This action is intended to or broken bolts, which could result in broken splice bolts found on the address the identified unsafe condition. structural damage and rapid airplanes were made from H11 alloy This AD requires accomplishment of the depressurization of the airplane. This steel, which has been found to be actions specified in the alert service action is intended to address the susceptible to stress corrosion and bulletin described previously, except as identified unsafe condition. consequent cracking and breakage. described below. Cracked or broken bolts on the bulkhead DATES: Effective May 8, 2002. Differences Between AD and Alert splice, if not corrected, could result in The incorporation by reference of Service Bulletin structural damage and rapid certain publications listed in the depressurization of the airplane. Although the alert service bulletin regulations is approved by the Director specifies that the manufacturer may be of the Federal Register as of May 8, Related AD contacted for disposition of certain 2002. AD 2001–11–06, amendment 39– repair conditions, this AD requires the Comments for inclusion in the Rules 12248 (66 FR 31124, June 11, 2001), repair of those conditions to be Docket must be received on or before applicable to certain Boeing Model 747 accomplished in accordance with a June 24, 2002. series airplanes, requires, among other method approved by the FAA, or per ADDRESSES: Submit comments in things, repetitive inspections to detect data meeting the type certification basis triplicate to the Federal Aviation cracking of certain areas of the BS 1480 of the airplane approved by a Boeing Administration (FAA), Transport bulkhead. AD 2001–11–06 focuses more Company Designated Engineering Airplane Directorate, ANM–114, on the skin splice plate and outer chord Representative who has been authorized Attention: Rules Docket No. 2002–NM– splice fitting than the mating bolts. by the Manager, Seattle Aircraft 69–AD, 1601 Lind Avenue, SW., However, airplanes on which the Certification Office, to make such Renton, Washington 98055–4056. bulkhead splice areas have been findings. modified in accordance with AD 2001– Comments may be inspected at this Interim Action location between 9:00 a.m. and 3:00 11–06 are excluded from the p.m., Monday through Friday, except applicability of this AD. Also, This is considered to be interim Federal holidays. Comments may be inspections of the bulkhead splice area action. The FAA is currently submitted via fax to (425) 227–1232. in accordance with AD 2001–11–06 considering requiring the replacement Comments may also be sent via the meet the inspection requirements of this of all alloy steel bolts on the BS 1480 Internet using the following address: 9- AD, provided that the bolts are bulkhead splice, which would terminate [email protected]. Comments inspected using magnetic particle the torque tests and ultrasonic sent via fax or the Internet must contain methods before they are reinstalled. inspections required by this AD. ‘‘Docket No. 2002-NM–69-AD’’ in the Explanation of Relevant Service However, the planned compliance time subject line and need not be submitted Information for this action is long enough to provide in triplicate. Comments sent via the adequate notice and opportunity for The FAA has reviewed and approved prior public comment. Internet as attached electronic files must Boeing Alert Service Bulletin 747– be formatted in Microsoft Word 97 for 53A2477, dated February 28, 2002, Determination of Rule’s Effective Date Windows or ASCII text. which describes procedures for a one- Since a situation exists that requires The service information referenced in time inspection using a magnet to the immediate adoption of this this AD may be obtained from Boeing identify all alloy steel bolts on the BS regulation, it is found that notice and Commercial Airplane Group, P.O. Box 1480 bulkhead splice, and an inspection opportunity for prior public comment 3707, Seattle, Washington 98124–2207. using torque test or ultrasonic methods hereon are impracticable, and that good This information may be examined at of all alloy steel bolts to determine if cause exists for making this amendment the FAA, Transport Airplane any are cracked or broken. Corrective effective in less than 30 days. Directorate, 1601 Lind Avenue, SW., actions include replacement of any Renton, Washington; or at the Office of cracked or broken alloy steel bolts with Comments Invited the Federal Register, 800 North Capitol Inconel 718 bolts; an ultrasonic Although this action is in the form of Street, NW., suite 700, Washington, DC. inspection—if any bolt on the splice a final rule that involves requirements FOR FURTHER INFORMATION CONTACT: Rick was found cracked—of any remaining affecting flight safety and, thus, was not Kawaguchi, Aerospace Engineer, alloy steel bolt that was inspected using preceded by notice and an opportunity Airframe Branch, ANM–120S, FAA, torque test methods; and repetitive for public comment, comments are Seattle Aircraft Certification Office, inspections of the remaining serviceable invited on this rule. Interested persons 1601 Lind Avenue, SW., Renton, alloy steel bolts. The alert service are invited to comment on this rule by Washington 98055–4056; telephone bulletin specifies that replacement of all submitting such written data, views, or (425) 227–1153; fax (425) 227–1181. alloy steel bolts on the splice eliminates arguments as they may desire.
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Communications shall identify the FR 11034, February 26, 1979). If it is alloy steel bolts by using a magnet or, if Rules Docket number and be submitted determined that this emergency applicable, detailed visual methods, in in triplicate to the address specified regulation otherwise would be accordance with Boeing Alert Service under the caption ADDRESSES. All significant under DOT Regulatory Bulletin 747–53A2477, dated February 28, communications received on or before Policies and Procedures, a final 2002. the closing date for comments will be regulatory evaluation will be prepared Note 2: For the purposes of this AD, a considered, and this rule may be and placed in the Rules Docket. A copy detailed visual inspection is defined as: ‘‘An intensive visual examination of a specific amended in light of the comments of it, if filed, may be obtained from the structural area, system, installation, or received. Factual information that Rules Docket at the location provided assembly to detect damage, failure, or supports the commenter’s ideas and under the caption ADDRESSES. irregularity. Available lighting is normally suggestions is extremely helpful in List of Subjects in 14 CFR Part 39 supplemented with a direct source of good evaluating the effectiveness of the AD lighting at intensity deemed appropriate by action and determining whether Air transportation, Aircraft, Aviation the inspector. Inspection aids such as mirror, additional rulemaking action would be safety, Incorporation by reference, magnifying lenses, etc., may be used. Surface needed. Safety. cleaning and elaborate access procedures may be required.’’ Submit comments using the following Adoption of the Amendment format: (1) For airplanes on which the bulkhead • Organize comments issue-by-issue. Accordingly, pursuant to the splice inspection specified by AD 2001–11– For example, discuss a request to authority delegated to me by the 06 has NOT been accomplished within 15 change the compliance time and a Administrator, the Federal Aviation months before the effective date of this AD: request to change the service bulletin Administration amends part 39 of the Inspect within 90 days after the effective date of this AD. reference as two separate issues. Federal Aviation Regulations (14 CFR • (2) For airplanes on which the bulkhead For each issue, state what specific part 39) as follows: splice inspection specified by AD 2001–11– change to the AD is being requested. • 06 HAS been accomplished within 15 Include justification (e.g., reasons or PART 39—AIRWORTHINESS months before the effective date of this AD: data) for each request. DIRECTIVES Inspect within 18 months since the most Comments are specifically invited on recent inspection. the overall regulatory, economic, 1. The authority citation for part 39 environmental, and energy aspects of continues to read as follows: Corrective Actions the rule that might suggest a need to Authority: 49 U.S.C. 106(g), 40113, 44701. (b) For each alloy steel bolt found during the inspection required by paragraph (a) of modify the rule. All comments § 39.13 [Amended] submitted will be available, both before this AD: Before further flight, inspect those and after the closing date for comments, 2. Section 39.13 is amended by bolts using torque test or ultrasonic methods to detect cracks or breakage, in accordance in the Rules Docket for examination by adding the following new airworthiness directive: with Boeing Alert Service Bulletin 747– interested persons. A report that 53A2477, dated February 28, 2002, except as summarizes each FAA-public contact 2002–08–10 Boeing: Amendment 39–12718. required by paragraph (e) of this AD. concerned with the substance of this AD Docket 2002–NM–69–AD. (1) For each uncracked and unbroken alloy will be filed in the Rules Docket. Applicability: Model 747 series airplanes, steel bolt found: Repeat the inspection Commenters wishing the FAA to certificated in any category, line numbers 1 specified by paragraph (b) of this AD acknowledge receipt of their comments through 750 inclusive, excluding airplanes thereafter at least every 18 months, until the submitted in response to this rule must on which the bulkhead splice areas have optional terminating action of paragraph (d) been modified in accordance with Plan ‘‘B’’ of this AD is accomplished. submit a self-addressed, stamped of AD 2001–11–06, amendment 39–12248. postcard on which the following (2) For any cracked or broken bolt found: Note 1: This AD applies to each airplane statement is made: ‘‘Comments to Before further flight, replace it with an identified in the preceding applicability Inconel 718 bolt. Such replacement Docket 2002-NM–69-AD.’’ The postcard provision, regardless of whether it has been terminates the requirements of this AD for will be date stamped and returned to the otherwise modified, altered, or repaired in that bolt only. commenter. the area subject to the requirements of this (3) If any cracked or broken bolt is found AD. For airplanes that have been modified, Regulatory Impact anywhere along the splice during any altered, or repaired so that the performance inspection required by paragraph (b) of this The regulations adopted herein will of the requirements of this AD is affected, the AD: Before further flight, reinspect, using not have a substantial direct effect on owner/operator must request approval for an ultrasonic methods, any remaining alloy steel the States, on the relationship between alternative method of compliance in bolts that were initially inspected using the national Government and the States, accordance with paragraph (g) of this AD. torque test methods, and replace any cracked The request should include an assessment of or broken bolt with an Inconel 718 bolt. Such or on the distribution of power and the effect of the modification, alteration, or responsibilities among the various replacement terminates the requirements of repair on the unsafe condition addressed by this AD for that bolt only. levels of government. Therefore, it is this AD; and, if the unsafe condition has not determined that this final rule does not been eliminated, the request should include Magnetic Particle Inspection have federalism implications under specific proposed actions to address it. (c) Plan ‘‘A’’ inspections required by AD Executive Order 13132. Compliance: Required as indicated, unless 2001–11–06 are acceptable for compliance The FAA has determined that this accomplished previously. with the inspection requirements of regulation is an emergency regulation To detect and correct cracked or broken paragraph (b) of this AD, provided a magnetic that must be issued immediately to alloy steel bolts on the body station (BS) 1480 particle inspection and applicable corrective correct an unsafe condition in aircraft, bulkhead splice and consequent structural actions are performed on any alloy steel bolt and that it is not a ‘‘significant damage and rapid depressurization of the removed during any Plan ‘‘A’’ inspection airplane, accomplish the following: before the bolt is reinstalled. The magnetic regulatory action’’ under Executive particle inspection and corrective actions Order 12866. It has been determined Inspection must be performed in accordance with further that this action involves an (a) At the applicable time specified by Boeing Alert Service Bulletin 747–53A2477, emergency regulation under DOT paragraph (a)(1) or (a)(2) of this AD: Inspect dated February 28, 2002, except as required Regulatory Policies and Procedures (44 the BS 1480 bulkhead splice to identify all by paragraph (e) of this AD.
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Optional Terminating Action Issued in Renton, Washington, on April 12, the following address: 9-anm- (d) Replacement of all alloy steel bolts in 2002. [email protected]. Comments sent the BS 1480 bulkhead splice with Inconel Vi L. Lipski, via fax or the Internet must contain 718 bolts, in accordance with Boeing Alert Manager, Transport Airplane Directorate, ‘‘Docket No. 2001–NM–211–AD’’ in the Service Bulletin 747–53A2477, dated Aircraft Certification Service. subject line and need not be submitted February 28, 2002, except as required by [FR Doc. 02–9570 Filed 4–22–02; 8:45 am] in triplicate. Comments sent via the paragraph (e) of this AD, terminates the Internet as attached electronic files must requirements of this AD. BILLING CODE 4910–13–U be formatted in Microsoft Word 97 for Exceptions to Service Information Windows or ASCII text. (e) If Boeing Alert Service Bulletin 747– DEPARTMENT OF TRANSPORTATION The service information referenced in 53A2477, dated February 28, 2002, specifies this AD may be obtained from to contact Boeing for appropriate action: Federal Aviation Administration Bombardier, Inc., Canadair, Aerospace Before further flight, repair in accordance Group, P.O. Box 6087, Station Centre- with a method approved by the Manager, 14 CFR Part 39 ville, Montreal, Quebec H3C 3G9, Seattle Aircraft Certification Office (ACO), [Docket No. 2001–NM–211–AD; Amendment Canada. This information may be FAA; or in accordance with data meeting the examined at the FAA, Transport type certification basis of the airplane 39–12716; AD 2002–08–08] Airplane Directorate, 1601 Lind approved by a Boeing Company Designated RIN 2120–AA64 Engineering Representative who has been Avenue, SW., Renton, Washington; or at the FAA, New York Aircraft authorized by the Manager, Seattle ACO, to Airworthiness Directives; Bombardier Certification Office, 10 Fifth Street, make such findings. For a repair method to Model CL–600–2B16 (CL–601–3R and be approved by the Manager, Seattle ACO, as Third Floor, Valley Stream, New York; CL–604) Series Airplanes required by this paragraph, the Manager’s or at the Office of the Federal Register, approval letter must specifically reference AGENCY: Federal Aviation 800 North Capitol Street, NW., suite this AD. Administration, DOT. 700, Washington, DC. Spares ACTION: Final rule; request for FOR FURTHER INFORMATION CONTACT: (f) As of the effective date of this AD, no comments. Luciano L. Castracane, Aerospace person may install an alloy steel bolt on the Engineer, Systems and Flight Test BS 1480 bulkhead splice on any airplane. SUMMARY: This amendment adopts a Branch, ANE–172, FAA, New York Alternative Methods of Compliance new airworthiness directive (AD) that is Aircraft Certification Office, 10 Fifth applicable to certain Bombardier Model Street, Third Floor, Valley Stream, New (g) An alternative method of compliance or York 11581; telephone (516) 256–7535; adjustment of the compliance time that CL–600–2B16 (CL–601–3R and CL–604) provides an acceptable level of safety may be series airplanes. This action requires a fax (516) 568–2716. used if approved by the Manager, Seattle one-time inspection to detect chafing SUPPLEMENTARY INFORMATION: Transport ACO, FAA. Operators shall submit their and other damage of the integrated drive Canada Civil Aviation (TCCA), which is requests through an appropriate FAA generator (IDG) cables on both left and the airworthiness authority for Canada, Principal Maintenance Inspector, who may right engines between the service pylon notified the FAA that an unsafe add comments and then send it to the connections to the IDG, corrective condition may exist on certain Manager, Seattle ACO. action if necessary, and installation of Bombardier Model CL–600–2B16 (CL– Note 3: Information concerning the protective Teflon tubing and additional 601–3R and CL–604) series airplanes. existence of approved alternative methods of clamps on the IDG cable harnesses. This TCCA advises that it has received a compliance with this AD, if any, may be action is necessary to prevent electrical report of electrical arcing between the obtained from the Seattle ACO. arcing between the IDG cable and the integrated drive generator (IDG) cable Special Flight Permits engine cowling, which could result in and an engine cowl door on a Model (h) Special flight permits may be issued in in-flight fire and/or loss of electrical CL–600–2B19 series airplane. The accordance with sections 21.197 and 21.199 power. This action is intended to electrical arcing has been attributed to of the Federal Aviation Regulations (14 CFR address the identified unsafe condition. chafing of the IDG cable. The IDG cable 21.197 and 21.199) to operate the airplane to DATES: Effective May 8, 2002. installation in Model CL–600–2B16 a location where the requirements of this AD The incorporation by reference of series airplanes is similar to that in can be accomplished. certain publications listed in the Model CL–600–2B19 series airplanes. Incorporation by Reference regulations is approved by the Director Electrical arcing between the IDG cable and the engine cowling, if not corrected, (i) Except as required by paragraph (e) of of the Federal Register as of May 8, this AD: The actions must be done in 2002. could result in in-flight fire and/or loss accordance with Boeing Alert Service Comments for inclusion in the Rules of electrical power. Bulletin 747–53A2477, dated February 28, Docket must be received on or before Related AD 2002. This incorporation by reference was May 23, 2002. approved by the Director of the Federal The FAA issued AD 2001–06–07, ADDRESSES: Register in accordance with 5 U.S.C. 552(a) Submit comments in amendment 39–12154 (66 FR 16114, and 1 CFR part 51. Copies may be obtained triplicate to the Federal Aviation March 23, 2001), as an immediately from Boeing Commercial Airplane Group, Administration (FAA), Transport adopted rule, applicable to Bombardier P.O. Box 3707, Seattle, Washington 98124– Airplane Directorate, ANM–114, Model CL–600–2B19 series airplanes. 2207. Copies may be inspected at the FAA, Attention: Rules Docket No. 2001–NM– The unsafe condition, required actions, Transport Airplane Directorate, 1601 Lind 211–AD, 1601 Lind Avenue, SW., and inspection compliance times in AD Avenue, SW., Renton, Washington; or at the Renton, Washington 98055–4056. 2001–06–07 are the same as those Office of the Federal Register, 800 North Comments may be inspected at this identified in this AD. Capitol Street, NW., suite 700, Washington, location between 9a.m. and 3p.m., DC. Monday through Friday, except Federal Explanation of Relevant Service Effective Date holidays. Comments may be submitted Information (j) This amendment becomes effective on via fax to (425) 227–1232. Comments The manufacturer has issued May 8, 2002. may also be sent via the Internet using Bombardier Alert Service Bulletins
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A601–0542 (for Model CL–601) and regulation, it is found that notice and or on the distribution of power and A604–73–002 (for Model CL–604), both opportunity for prior public comment responsibilities among the various dated January 12, 2001. These alert hereon are impracticable, and that good levels of government. Therefore, it is service bulletins describe procedures for cause exists for making this amendment determined that this final rule does not a one-time inspection of the IDG cables effective in less than 30 days. have federalism implications under on both left and right engines to detect Executive Order 13132. chafing and other damage; repair or Comments Invited The FAA has determined that this replacement of any damaged IDG cable Although this action is in the form of regulation is an emergency regulation if its inner core is not visible and not a final rule that involves requirements that must be issued immediately to damaged; replacement of any damaged affecting flight safety and, thus, was not correct an unsafe condition in aircraft, IDG cable with a new cable if the inner preceded by notice and an opportunity and that it is not a ‘‘significant core is visible or damaged; and for public comment, comments are regulatory action’’ under Executive installation of protective Teflon tubing invited on this rule. Interested persons Order 12866. It has been determined and additional clamps on the IDG cable are invited to comment on this rule by further that this action involves an harness. Accomplishment of the actions submitting such written data, views, or emergency regulation under DOT specified in the alert service bulletins is arguments as they may desire. Regulatory Policies and Procedures (44 intended to adequately address the Communications shall identify the FR 11034, February 26, 1979). If it is identified unsafe condition. TCCA Rules Docket number and be submitted determined that this emergency classified these alert service bulletins as in triplicate to the address specified regulation otherwise would be mandatory and issued Canadian under the caption ADDRESSES. All significant under DOT Regulatory airworthiness directive CF–2001–06, communications received on or before Policies and Procedures, a final dated January 26, 2001, to ensure the the closing date for comments will be regulatory evaluation will be prepared continued airworthiness of these considered, and this rule may be and placed in the Rules Docket. A copy airplanes in Canada. amended in light of the comments of it, if filed, may be obtained from the received. Factual information that FAA’s Conclusions Rules Docket at the location provided supports the commenter’s ideas and under the caption ADDRESSES. These airplane models are suggestions is extremely helpful in manufactured in Canada and are type evaluating the effectiveness of the AD List of Subjects in 14 CFR Part 39 certificated for operation in the United action and determining whether Air transportation, Aircraft, Aviation States under the provisions of section additional rulemaking action would be safety, Incorporation by reference, 21.29 of the Federal Aviation needed. Safety. Regulations (14 CFR 21.29) and the Submit comments using the following Adoption of the Amendment applicable bilateral airworthiness format: agreement. Pursuant to this bilateral • Organize comments issue-by-issue. Accordingly, pursuant to the airworthiness agreement, TCCA has For example, discuss a request to authority delegated to me by the kept the FAA informed of the situation change the compliance time and a Administrator, the Federal Aviation described above. The FAA has request to change the service bulletin Administration amends part 39 of the examined the findings of TCCA, reference as two separate issues. Federal Aviation Regulations (14 CFR reviewed all available information, and • For each issue, state what specific part 39) as follows: determined that AD action is necessary change to the AD is being requested. for products of this type design that are • Include justification (e.g., reasons or PART 39—AIRWORTHINESS certificated for operation in the United data) for each request. DIRECTIVES States. Comments are specifically invited on the overall regulatory, economic, 1. The authority citation for part 39 Explanation of Requirements of Rule environmental, and energy aspects of continues to read as follows: Since an unsafe condition has been the rule that might suggest a need to Authority: 49 U.S.C. 106(g), 40113, 44701. identified that is likely to exist or modify the rule. All comments § 39.13 [Amended] develop on other airplanes of the same submitted will be available, both before type design registered in the United and after the closing date for comments, 2. Section 39.13 is amended by States, this AD is being issued to in the Rules Docket for examination by adding the following new airworthiness prevent electrical arcing between the interested persons. A report that directive: IDG cable and the engine cowling, summarizes each FAA-public contact 2002–08–08 Bombardier, Inc. (Formerly which could result in in-flight fire and/ concerned with the substance of this AD Canadair): Amendment 39–12716. or loss of electrical power. This AD will be filed in the Rules Docket. Docket 2001–NM–211–AD. requires a one-time inspection to detect Commenters wishing the FAA to Applicability: Model CL–600–2B16 (CL– chafing and other damage of the acknowledge receipt of their comments 601–3R) series airplanes, serial numbers 5135 integrated drive generator (IDG) cables submitted in response to this rule must through 5194 inclusive; and Model CL–600– on both left and right engines between submit a self-addressed, stamped 2B16 (CL–604) series airplanes, serial the service pylon connections to the postcard on which the following numbers 5301 through 5481 inclusive; IDG, corrective action if necessary, and statement is made: ‘‘Comments to certificated in any category. installation of protective Teflon tubing Docket 2001–NM–211–AD.’’ The Note 1: This AD applies to each airplane and additional clamps on the IDG cable postcard will be date stamped and identified in the preceding applicability returned to the commenter. provision, regardless of whether it has been harnesses. The AD also requires that modified, altered, or repaired in the area operators report results of positive Regulatory Impact subject to the requirements of this AD. For inspection findings to Bombardier. airplanes that have been modified, altered, or The regulations adopted herein will Determination of Rule’s Effective Date repaired so that the performance of the not have a substantial direct effect on requirements of this AD is affected, the Since a situation exists that requires the States, on the relationship between owner/operator must request approval for an the immediate adoption of this the national Government and the States, alternative method of compliance in
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accordance with paragraph (d) of this AD. (2) For airplanes on which the inspection DEPARTMENT OF TRANSPORTATION The request should include an assessment of has been accomplished prior to the effective the effect of the modification, alteration, or date of this AD: Submit the report within 30 Federal Aviation Administration repair on the unsafe condition addressed by days after the effective date of this AD. this AD; and, if the unsafe condition has not 14 CFR Part 39 been eliminated, the request should include Alternative Methods of Compliance specific proposed actions to address it. (d) An alternative method of compliance or [Docket No. 2001–SW–58–AD; Amendment Compliance: Required as indicated, unless adjustment of the compliance time that 39–12726; AD 2001–25–52] accomplished previously. provides an acceptable level of safety may be To prevent electrical arcing between the integrated drive generator (IDG) cable and the used if approved by the Manager, New York RIN 2120–AA64 engine cowling, which could result in in- Aircraft Certification Office (ACO), FAA. flight fire and/or loss of electrical power, Operators shall submit their requests through Airworthiness Directives; Schweizer accomplish the following: an appropriate FAA Principal Maintenance Aircraft Corporation Model 269A, Inspector, who may add comments and then 269A–1, 269B, 269C, and TH–55A Inspection send it to the Manager, New York ACO. Helicopters (a) Within 50 flight hours after the effective Note 3: Information concerning the date of this AD, perform a detailed inspection AGENCY: Federal Aviation of the IDG cables on both left and right existence of approved alternative methods of Administration, DOT. engines to detect chafing and other damage compliance with this AD, if any, may be between the service pylons to the IDG, in obtained from the New York ACO. ACTION: Final rule; request for accordance with Bombardier Alert Service comments. Bulletin A601–0542 (for Model CL–600–2B16 Special Flight Permits SUMMARY: This document publishes in (CL–601) series airplanes) or A604–73–002 (e) Special flight permits may be issued in the Federal Register an amendment (for Model CL–600–2B16 (CL–604) series accordance with sections 21.197 and 21.199 airplanes), both dated January 12, 2001; as adopting Airworthiness Directive (AD) of the Federal Aviation Regulations (14 CFR applicable. If any chafing or other damage is 2001–25–52, which was sent previously 21.197 and 21.199) to operate the airplane to found: Prior to further flight, repair the to all known U.S. owners and operators a location where the requirements of this AD damaged cable or replace it with a new cable, of Schweizer Aircraft Corporation as applicable, in accordance with the can be accomplished. applicable alert service bulletin. (Schweizer) Model 269A, 269A–1, 269B, Incorporation by Reference 269C, and TH–55A helicopters by Note 2: For the purposes of this AD, a detailed inspection is defined as: ‘‘An (f) Except as required by paragraph (c) of individual letters. This AD supersedes intensive visual examination of a specific this AD: The actions must be done in an existing AD that requires inspecting structural area, system, installation, or accordance with Bombardier Alert Service and modifying or replacing, if assembly to detect damage, failure, or Bulletin A601–0542, dated January 12, 2001; necessary, the aluminum end fittings of irregularity. Available lighting is normally or Bombardier Alert Service Bulletin A604– each tailboom support strut (strut). That supplemented with a direct source of good 73–002, dated January 12, 2001; as AD also requires inspecting the lighting at intensity deemed appropriate by applicable. (The manufacturer’s name is tailboom center attach fittings and the inspector. Inspection aids such as mirror, magnifying lenses, etc., may be used. Surface listed only on the first page on both of these center frame aft cluster fittings for cleaning and elaborate access procedures documents; no other page contains this damage, and if damaged parts are found, may be required.’’ information.) This incorporation by reference replacing the damaged parts. This AD was approved by the Director of the Federal requires inspecting and replacing, if Installation of Teflon Tubing and Clamps Register in accordance with 5 U.S.C. 552(a) necessary, each strut clevis lug (lug) on (b) Within 400 flight hours after the and 1 CFR part 51. Copies may be obtained each tailboom center frame aft cluster effective date of this AD, install protective from Bombardier, Inc., Canadair, Aerospace fitting (cluster fitting), certain strut Teflon tubing and additional clamps on the Group, P.O. Box 6087, Station Centre-ville, assemblies, certain tailboom IDG cable harnesses, in accordance with Montreal, Quebec H3C 3G9, Canada. Copies attachments, and certain frame aft Bombardier Alert Service Bulletin A601– may be inspected at the FAA, Transport 0542 (for Model CL–601) or A604–73–002 cluster fittings. Modifying or replacing (for Model CL–604), both dated January 12, Airplane Directorate, 1601 Lind Avenue, each strut assembly within a certain 2001; as applicable. SW., Renton, Washington; or at the FAA, time period and serializing certain strut New York Aircraft Certification Office, 10 assemblies are also required. This AD is Reporting Fifth Street, Third Floor, Valley Stream, New prompted by an accident in the United (c) If any chafing or other damage is found York; or at the Office of the Federal Register, Kingdom involving the in-flight during the inspection required by paragraph 800 North Capitol Street, NW., suite 700, structural failure of a Schweizer Model (a) of this AD: Submit a report of the findings Washington, DC. to Bombardier, Inc., Canadair, Aerospace 269C helicopter. The actions specified Group, P.O. Box 6087, Station Centreville, Note 4: The subject of this AD is addressed by this AD are intended to prevent Montreal, Quebec H3C 3G9, Canada. The in Canadian airworthiness directive CF– failure of a lug on a cluster fitting, report must include the inspection results, a 2001–06, dated January 26, 2001. rotation of a tailboom into the main description of any discrepancies found, the rotor blades, and subsequent loss of airplane serial number, and the number of Effective Date control of the helicopter. landings and flight hours on the airplane. (g) This amendment becomes effective on DATES: Effective May 8, 2002, to all Information collection requirements May 8, 2002. contained in this regulation have been persons except those persons to whom approved by the Office of Management and Issued in Renton, Washington, on April 12, it was made immediately effective by Budget (OMB) under the provisions of the 2002. Emergency AD 2001–25–52, issued on Paperwork Reduction Act of 1980 (44 U.S.C. Vi L. Lipski, December 14, 2001, which contained 3501 et seq.) and have been assigned OMB Manager, Transport Airplane Directorate, the requirements of this amendment. Control Number 2120–0056. The incorporation by reference of (1) For airplanes on which the inspection Aircraft Certification Service. is accomplished after the effective date of [FR Doc. 02–9572 Filed 4–22–02; 8:45 am] certain publications listed in the regulations is approved by the Director this AD: Submit the report within 30 days BILLING CODE 4910–13–U after performing the inspection required by of the Federal Register as of May 8, paragraph (a) of this AD. 2002.
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Comments for inclusion in the Rules requirement to dye-penetrant inspect approximately 2.5 work hours for each Docket must be received on or before the lugs on both cluster fittings within dye-penetrant inspection, 12 work hours June 24, 2002. 10 hours TIS and at specified intervals, to replace one cluster fitting, 4 work ADDRESSES: Submit comments in and, before further flight, replace any hours to modify or replace the strut triplicate to the Federal Aviation cracked cluster fitting. assembly, and 0.25 work hours to Administration (FAA), Office of the The FAA has reviewed Schweizer serialize the strut assembly. The average Regional Counsel, Southwest Region, Service Information Notice No. N–109.2, labor rate is $60 per work hour. Attention: Rules Docket No. 2001–SW– dated, September 1, 1976, which Required parts will cost approximately 58–AD, 2601 Meacham Blvd., Room describes procedures for inspecting $5.00 for each fitting inspection, $1635 663, Fort Worth, Texas 76137. You may tailboom support strut aluminum end to replace a cluster fitting, and $1500 to also send comments electronically to fittings and replacing aluminum end modify or replace the strut assembly. the Rules Docket at the following fittings with stainless steel end fittings. Based on these figures, the total cost address: [email protected]. The FAA has also reviewed Schweizer impact of the AD on U.S. operators is The applicable service information Service Information Notice No. N–108, estimated to be $283,280 (assuming may be obtained from Schweizer dated May 21, 1973, which describes 1000 cluster fittings are inspected, 50 Aircraft Corporation, P.O. Box 147, procedures for serializing the tailboom cluster fittings are replaced, 6 strut Elmira, New York 14902. This support strut assembly. assemblies are modified or replaced, information may be examined at the Since the unsafe condition described and 6 strut assemblies are serialized). is likely to exist or develop on other FAA, Office of the Regional Counsel, Comments Invited Southwest Region, 2601 Meacham Schweizer Model 269A, 269A–1, 269B, Blvd., Room 663, Fort Worth, Texas; or 269C, and TH–55A helicopters of the Although this action is in the form of at the Office of the Federal Register, 800 same type designs, the FAA issued a final rule that involves requirements North Capitol Street, NW., suite 700, Emergency AD 2001–25–52 to prevent affecting flight safety and, thus, was not Washington, DC. failure of a lug on a cluster fitting, preceded by notice and an opportunity rotation of a tailboom into the main for public comment, comments are FOR FURTHER INFORMATION CONTACT: rotor blades, and subsequent loss of invited on this rule. Interested persons George Duckett, Aviation Safety control of the helicopter. The AD are invited to comment on this rule by Engineer, FAA, New York Aircraft requires the following: submitting such written data, views, or Certification Office, Airframe and • Initially and at specified intervals, arguments as they may desire. Propulsion Branch, 10 Fifth Street, 3rd inspect the lugs on both cluster fittings, Communications should identify the Floor, Valley Stream, New York, certain strut assemblies, certain tail Rules Docket number and be submitted telephone (516) 256–7525, fax (516) boom attachments and center frame aft in triplicate to the address specified 568–2716. cluster fittings. If damage or a crack is under the caption ADDRESSES. All SUPPLEMENTARY INFORMATION: The FAA found, before further flight replace each communications received on or before issued AD 76–18–01 (41 FR 37093, damaged or cracked part with an the closing date for comments will be September 2, 1976) on August 23, 1976, airworthy part; considered, and this rule may be which amended AD No. 73–3–1 (38 FR • Modify or replace each strut amended in light of the comments 2331). AD 76–18–01 required visually assembly within the specified TIS or received. Factual information that inspecting the aluminum end fittings of one year, whichever occurs first; and supports the commenter’s ideas and each strut for deformation or damage • Serialize certain strut assemblies. suggestions is extremely helpful in and dye-penetrant inspecting for a crack The actions must be accomplished in evaluating the effectiveness of the AD and, if deformation, damage or a crack accordance with the service information action and determining whether is found, modifying or replacing the notices described previously. The short additional rulemaking action would be part. Modifying or replacing the parts compliance time involved is required needed. within specified hours time-in-service because the previously described Comments are specifically invited on (TIS) is also required. Also, that AD critical unsafe condition can adversely the overall regulatory, economic, requires inspecting the tailboom center affect the structural integrity of the environmental, and energy aspects of attach fittings and center frame aft helicopter. Therefore, the actions the rule that might suggest a need to cluster fittings for damage, and if previously stated are required at the modify the rule. All comments damaged parts are found, replacing the specified time intervals, and this AD submitted will be available in the Rules damaged parts. must be issued immediately. Docket for examination by interested Since the issuance of that AD, an Since it was found that immediate persons. A report that summarizes each accident occurred in the United corrective action was required, notice FAA-public contact concerned with the Kingdom involving an in-flight and opportunity for prior public substance of this AD will be filed in the structural failure of a Schweizer Model comment thereon were impracticable Rules Docket. 269C helicopter. The Air Accidents and contrary to the public interest, and Commenters wishing the FAA to Investigation Branch of the United good cause existed to make the AD acknowledge receipt of their mailed Kingdom investigated the accident and effective immediately by individual comments submitted in response to this recommended that the FAA issue an AD letters issued on December 14, 2001 to rule must submit a self-addressed, requiring certain inspections of the all known U.S. owners and operators of stamped postcard on which the clevis lugs and replacing certain cluster Schweizer Model 269A, 269A–1, 269B, following statement is made: fittings. The FAA determined that the 269C, and TH–55A helicopters. These ‘‘Comments to Docket No. 2001–SW– unsafe condition was due to cracking of conditions still exist, and the AD is 58–AD.’’ The postcard will be date the cluster fitting. Therefore, on hereby published in the Federal stamped and returned to the December 14, 2001, the FAA issued AD Register as an amendment to 14 CFR commenter. 2001–25–52 to supersede AD 76–18–01. 39.13 to make it effective to all persons. The regulations adopted herein will AD 2001–25–52 retains the inspection, The FAA estimates that 500 not have a substantial direct effect on modification and replacement helicopters of U.S. registry will be the States, on the relationship between requirements of the strut, but adds a affected by this AD. It will take the national Government and the States,
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or on the distribution of power and Adoption of the Amendment provision, regardless of whether it has been responsibilities among the various otherwise modified, altered, or repaired in Accordingly, pursuant to the levels of government. Therefore, it is the area subject to the requirements of this authority delegated to me by the AD. For helicopters that have been modified, determined that this final rule does not Administrator, the Federal Aviation altered, or repaired so that the performance have federalism implications under Administration amends part 39 of the of the requirements of this AD is affected, the Executive Order 13132. Federal Aviation Regulations (14 CFR owner/operator must request approval for an The FAA has determined that this part 39) as follows: alternative method of compliance in regulation is an emergency regulation accordance with paragraph (d) of this AD. The request should include an assessment of that must be issued immediately to PART 39—AIRWORTHINESS DIRECTIVES the effect of the modification, alteration, or correct an unsafe condition in aircraft, repair on the unsafe condition addressed by and that it is not a ‘‘significant 1. The authority citation for part 39 this AD; and if the unsafe condition has not regulatory action’’ under Executive continues to read as follows: been eliminated, the request should include specific proposed actions to address it. Order 12866. It has been determined Authority: 49 U.S.C. 106(g), 40113, 44701. further that this action involves an Compliance: Required as indicated, unless emergency regulation under DOT § 39.13 [Amended] accomplished previously. Regulatory Policies and Procedures (44 2. Section 39.13 is amended by To prevent failure of a strut clevis lug (lug) FR 11034, February 26, 1979). If it is adding a new airworthiness directive to on a center frame aft cluster fitting (cluster fitting), rotation of a tailboom into the main determined that this emergency read as follows: rotor blades, and subsequent loss of control regulation otherwise would be 2001–25–52 Schweizer Aircraft of the helicopter, accomplish the following: significant under DOT Regulatory Corporation: Amendment 39–12726. (a) Within 10 hours time-in-service (TIS), Policies and Procedures, a final Docket No. 2001–SW–58–AD. and thereafter at intervals not to exceed 50 regulatory evaluation will be prepared Supersedes AD 76–18–01, Amendment hours TIS, for helicopters with cluster and placed in the Rules Docket. A copy No. 39–2707, Docket No. 72–WE–23–AD. fittings, P/N 269A2234 or 269A2235: of it, if filed, may be obtained from the Applicability: Model 269A, 269A–1, 269B, (1) Using paint remover, remove paint from 269C, and TH–55A helicopters, with the lugs on each aft cluster fitting. Wash with Rules Docket at the location provided tailboom support strut (strut) assemblies, part water and dry. under the caption ADDRESSES. number (P/N) 269A2015 or P/N 269A2015– (2) Dye-penetrant inspect the lugs on each 5; tailboom center attach fitting, P/N List of Subjects in 14 CFR Part 39 aft cluster fitting. See Figure 1. 269A2324; or with a center frame aft cluster (3) If a crack is found, before further flight, Air transportation, Aircraft, Aviation fitting, P/N 269A2234 or 269A2235, replace the cracked cluster fitting with an installed, certificated in any category. airworthy cluster fitting. Cluster fittings, P/N safety, Incorporation by reference, Note 1: This AD applies to each helicopter 269A2234 and 269A2235, are not eligible to Safety. identified in the preceding applicability replace a cracked cluster fitting.
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(b) For helicopters with strut assemblies P/ 269A2017–3 and –5, and attach bolts in (d) An alternative method of compliance or N 269A2015 or 269A2015–5, accomplish the accordance with Step III of SIN N–109.2; or adjustment of the compliance time that following: replace each strut assembly P/N 269A2015 provides an acceptable level of safety may be (1) At intervals not to exceed 50 hours TIS: with P/N 269A2015–9, and replace each strut used if approved by the Manager, New York (i) Remove the strut assemblies, P/N assembly P/N 269A2015–5 with P/N Aircraft Certification Office (NYACO), FAA. 269A2015 or P/N 269A2015–5. 269A2015–11. Operators shall submit their requests through (ii) Visually inspect the strut aluminum (2) Within 500 hours TIS or one year, an FAA Principal Maintenance Inspector, end fittings for deformation or damage and whichever occurs first, modify or replace the who may concur or comment and then send dye-penetrant inspect the strut aluminum strut assemblies in accordance with it to the Manager, NYACO. end fittings for a crack in with accordance paragraph (b)(1)(iii) of this AD. Step II of Schweizer Service Information (c) For Schweizer Aircraft Corporation Note 2: Information concerning the Notice No. N–109.2, dated September 1, 1976 Model 269C helicopters, within 100 hours existence of approved alternative methods of (SIN N–109.2). TIS, serialize each strut assembly, P/N compliance with this AD, if any, may be (iii) If deformation, damage, or a crack is 269A2015–5 and 269A2015–11, in obtained from the NYACO. found, before further flight, modify the strut accordance with Schweizer Service (e) Special flight permits may be issued in assemblies by replacing the aluminum end Information Notice No. N–108, dated May 21, accordance with 14 CFR 21.197 and 21.199 fittings with stainless steel end fittings, P/N 1973. to operate the helicopter to a location where
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the requirements of this AD can be DATES: Effective May 8, 2002. on Airbus Model A330 and A340 series accomplished. The incorporation by reference of airplanes. Hydraulic fluid leakage was (f) The inspections and modifications shall certain publications listed in the found at the hydraulic connections and be done in accordance with Steps II and III regulations is approved by the Director the vent hole of the valve. PBOV of Schweizer Service Information Notice No. N–109.2, dated September 1, 1976 and of the Federal Register as of May 8, leakage, if not corrected, could result in Schweizer Service Information Notice No. N– 2002. failure of the ‘‘blue’’ hydraulic system 108, dated May 21, 1973, as applicable. This Comments for inclusion in the Rules and consequent failure of alternate incorporation by reference was approved by Docket must be received on or before parking brake and emergency braking the Director of the Federal Register in May 23, 2002. systems. In addition, loss of the ‘‘blue’’ accordance with 5 U.S.C. 552(a) and 1 CFR ADDRESSES: Submit comments in hydraulic system could affect elements part 51. Copies may be obtained from triplicate to the Federal Aviation of the hydraulics for flaps, stabilizer, Schweizer Aircraft Corporation, P.O. Box Administration (FAA), Transport certain spoilers, elevator, rudder, and 147, Elmira, New York 14902. Copies may be aileron. inspected at the FAA, Office of the Regional Airplane Directorate, ANM–114, Counsel, Southwest Region, 2601 Meacham Attention: Rules Docket No. 2001–NM– Explanation of Relevant Service Blvd., Room 663, Fort Worth, Texas; or at the 350–AD, 1601 Lind Avenue, SW., Information Office of the Federal Register, 800 North Renton, Washington 98055–4056. Capitol Street, NW., suite 700, Washington, Comments may be inspected at this Airbus has issued Service Bulletins DC. location between 9:00 a.m. and 3:00 A330–32A3139 and A340–32A4176, (g) This amendment becomes effective on p.m., Monday through Friday, except both Revision 01, dated November 23, May 8, 2002, to all persons except those Federal holidays. Comments may be 2001. The service bulletins describe persons to whom it was made immediately procedures for a one-time detailed effective by Emergency AD 2001–25–52, submitted via fax to (425) 227–1232. Comments may also be sent via the visual inspection of the PBOV of the issued December 14, 2001, which contained main landing gear to identify the part the requirements of this amendment. Internet using the following address: 9– anm–[email protected]. Comments and serial numbers, and follow-on Issued in Fort Worth, Texas, on April 12, actions, if necessary. The service 2002. sent via the Internet must contain ‘‘Docket No. 2001–NM–350–AD’’ in the bulletins also describe procedures for David A. Downey, subject line and need not be submitted modification or replacement of affected Manager, Rotorcraft Directorate, Aircraft in triplicate. Comments sent via fax or PBOVs, to be done if certain conditions Certification Service. the Internet as attached electronic files are found during the inspection. [FR Doc. 02–9729 Filed 4–22–02; 8:45 am] must be formatted in Microsoft Word 97 Accomplishment of the actions BILLING CODE 4910–13–U for Windows or ASCII text. described in the revised service The service information referenced in bulletins is intended to adequately this AD may be obtained from Airbus address the identified unsafe condition. DEPARTMENT OF TRANSPORTATION Industrie, 1 Rond Point Maurice The DGAC has mandated all of the actions (including the PBOV Federal Aviation Administration Bellonte, 31707 Blagnac Cedex, France. This information may be examined at modification/replacement) described in these service bulletins, and issued 14 CFR Part 39 the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., French airworthiness directives 2001– [Docket No. 2001–NM–350–AD; Amendment Renton, Washington; or at the Office of 516(B) R1 and 2001–517(B) R1, both 39–12720; AD 2002–08–12] the Federal Register, 800 North Capitol dated February 6, 2002, to ensure the continued airworthiness of these RIN 2120–AA64 Street, NW., suite 700, Washington, DC. airplanes in France. FOR FURTHER INFORMATION CONTACT: Dan Airworthiness Directives; Airbus Model Rodina, Aerospace Engineer, FAA’s Determination of Urgency of A330 and A340 Series Airplanes International Branch, ANM–116, FAA, Unsafe Condition AGENCY: Federal Aviation Transport Airplane Directorate, 1601 Since the proposed AD was issued, Administration, DOT. Lind Avenue, SW., Renton, Washington we have issued or will issue two similar 98055–4056, telephone (425) 227–2125; ACTION: Final rule; request for ADs as immediately adopted rules—one fax (425) 227–1149. comments. applicable to Airbus Model A319, A320, SUPPLEMENTARY INFORMATION: A and A321 series airplanes, and the other SUMMARY: This amendment adopts a proposal to amend part 39 of the Federal applicable to Airbus Model A300, new airworthiness directive (AD) that is Aviation Regulations (14 CFR part 39) to A300–600, and A310 series airplanes. applicable to certain Airbus Model include an airworthiness directive (AD) Because of the urgency of the unsafe A330 and A340 series airplanes. This that is applicable to certain Airbus condition identified in those ADs, and action requires an inspection of the Model A330 and A340 series airplanes the similarity to the unsafe condition parking brake operated valve (PBOV) of was published in the Federal Register identified by this AD for Model A330 the main landing gear to identify the on January 2, 2002 (67 FR 31). That and A340 series airplanes, we have part and serial numbers, and follow-on action proposed to require a one-time determined that immediate adoption of actions if necessary. This action inspection of the parking brake operated this AD is also necessary. provides for optional terminating action valve (PBOV) of the main landing gear for the requirements of this AD. This to identify the part and serial numbers, Explanation of Change to this AD action is necessary to prevent leakage of and follow-on actions if necessary. The DGAC has mandated that affected the PBOV and consequent failure of the As stated in the proposed AD, the PBOVs be modified or replaced— ‘‘blue’’ hydraulic system, which could Direction Ge´ne´rale de l’Aviation Civile regardless of the inspection findings. affect elements of the hydraulics for (DGAC), which is the airworthiness The service bulletins recommend this flaps, stabilizer, certain spoilers, authority for France, advised the FAA action only if certain conditions are elevator, rudder, and aileron. This that PBOV leakage has been identified found, and allow the repetitive action is intended to address the on certain Airbus Model A320 series inspections to continue under certain identified unsafe condition. airplanes. The same PBOV is installed circumstances. We find that failure to
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modify or replace the PBOVs in a timely of the actions according to the original Comments Invited manner may not provide the degree of service bulletin, as provided by Note 2 Although this action is in the form of safety necessary for the affected of this AD. a final rule that involves requirements airplanes. However, the planned FAA’s Conclusions affecting flight safety and, thus, was not compliance time to accomplish the preceded by notice and an opportunity modification/replacement is long These airplane models are for public comment, comments are enough to provide notice and manufactured in France and are type invited on this rule. Interested persons opportunity for prior public comment. certificated for operation in the United are invited to comment on this rule by Paragraph (b) of this AD provides for States under the provisions of section submitting such written data, views, or that action as optional. We may issue 21.29 of the Federal Aviation arguments as they may desire. further rulemaking later to require the Regulations (14 CFR 21.29) and the Communications shall identify the modification/replacement action. applicable bilateral airworthiness Rules Docket number and be submitted Comments on the Proposed AD agreement. Pursuant to this bilateral in triplicate to the address specified airworthiness agreement, the DGAC has under the caption ADDRESSES. All Interested persons were given an kept us informed of the situation communications received on or before opportunity to comment on the described above. We have examined the the closing date for comments will be proposed AD. Due consideration has DGAC’s findings, reviewed all available considered, and this rule may be been given to the comments received. information, and determined that AD amended in light of the comments Request to Extend Compliance Times action is necessary for products of this received. Factual information that One commenter, an operator, requests type design that are certificated for supports the commenter s ideas and that the proposed AD be revised to operation in the United States. suggestions is extremely helpful in evaluating the effectiveness of the AD extend the compliance time from 7 days Explanation of Requirements of Rule to 30 days, and the repetitive inspection action and determining whether additional rulemaking action would be interval from 10 days to 30 days. The Since an unsafe condition has been needed. operator’s current operating schedule identified that is likely to exist or Submit comments using the following for the fleet permits little ground time develop on other airplanes of the same format: outside of scheduled A- or C-checks, type design registered in the United • Organize comments issue-by-issue. and requests the revised schedule to States, this AD is being issued to For example, discuss a request to minimize the disruption to the flight prevent leakage of the PBOV and change the compliance time and a operations. The commenter states that consequent failure of the ‘‘blue’’ request to change the service bulletin the proposed compliance times would hydraulic system, which could affect reference as two separate issues. make it difficult to accomplish the elements of the hydraulics for flaps, • For each issue, state what specific actions without resulting in flight delays stabilizer, certain spoilers, elevator, change to the AD is being requested. and possible cancellations. rudder, and aileron. This AD requires an • Include justification (e.g., reasons or We do not concur. The commenter inspection of the hydraulically operated data) for each request. provides no specific basis for the valve of the parking brake of the main Comments are specifically invited on anticipated difficulty in completing the landing gear to identify the part and the overall regulatory, economic, actions within the proposed compliance serial numbers, and follow-on actions if environmental, and energy aspects of times. For example, the commenter does necessary. This AD provides for the the rule that might suggest a need to not describe any potential problems optional modification of affected modify the rule. All comments with parts availability or the status of PBOVs, or their replacement with new submitted will be available, both before airplanes already inspected. The ability parts, which would terminate the and after the closing date for comments, to accomplish the initial requirements requirements of this AD. The actions are in the Rules Docket for examination by during an overnight maintenance visit required to be accomplished in interested persons. A report that and the multiple options for follow-on accordance with the revised service summarizes each FAA-public contact actions should accommodate operators’ bulletins described previously. concerned with the substance of this AD scheduling needs. The compliance time will be filed in the Rules Docket. remains the same as proposed. Interim Action Commenters wishing us to acknowledge receipt of their comments Request to Cite Most Recent Service This is considered to be interim submitted in response to this rule must action. We are considering requiring the Bulletin submit a self-addressed, stamped modification or replacement of affected One commenter (an operator of Model postcard on which the following PBOVs, which would terminate the A330 series airplanes) requests that the statement is made: ‘‘Comments to requirements of this AD. However, the proposed AD be revised to cite Airbus Docket 2001–NM–350–AD.’’ The planned compliance time for the Service Bulletin A330–32A3139, postcard will be date-stamped and modification/replacement is sufficiently Revision 01, as the guidance for the AD returned to the commenter. requirements. (The original service long so that notice and opportunity for bulletin was cited in the proposed AD.) prior public comment will be Regulatory Impact We concur with the commenter’s practicable. The regulations adopted herein will request. In addition, as stated Determination of Rule’s Effective Date not have a substantial direct effect on previously, Airbus has issued Revision the States, on the relationship between 01 of Airbus Service Bulletin A340– Since a situation exists that requires the national Government and the States, 32A4176 (for Model A340 series the immediate adoption of this or on the distribution of power and airplanes). This AD cites Revision 01 of regulation, it is found that notice and responsibilities among the various these service bulletins as the opportunity for prior public comment levels of government. Therefore, it is appropriate source of service hereon are impracticable, and that good determined that this final rule does not information; however, operators will cause exists for making this amendment have federalism implications under receive credit for prior accomplishment effective in less than 30 days. Executive Order 13132.
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The FAA has determined that this To prevent leakage of the parking brake Inspector, who may add comments and then regulation is an emergency regulation operated valve (PBOV) of the main landing send it to the Manager, International Branch, that must be issued immediately to gear and consequent failure of the ‘‘blue’’ ANM–116. correct an unsafe condition in aircraft, hydraulic system, which could affect Note 4: Information concerning the elements of the hydraulics for flaps, existence of approved alternative methods of and that it is not a ‘‘significant stabilizer, certain spoilers, elevator, rudder, regulatory action’’ under Executive compliance with this AD, if any, may be and aileron, accomplish the following: obtained from the International Branch, Order 12866. It has been determined ANM–116. further that this action involves an Inspections/Follow-On Actions emergency regulation under DOT (a) Within 7 days after the effective date of Special Flight Permits this AD: Do a one-time detailed inspection to Regulatory Policies and Procedures (44 (d) Special flight permits may be issued in FR 11034, February 26, 1979). If it is determine the part number (P/N) and serial number (S/N) of the PBOV of the main accordance with sections 21.197 and 21.199 determined that this emergency landing gear, according to Airbus Service of the Federal Aviation Regulations (14 CFR regulation otherwise would be Bulletin A330–32A3139 (for Model A330 21.197 and 21.199) to operate the airplane to significant under DOT Regulatory series airplanes) or A340–32A4176 (for a location where the requirements of this AD Policies and Procedures, a final Model A340 series airplanes), both Revision can be accomplished. regulatory evaluation will be prepared 01, dated November 23, 2001; as applicable. Incorporation by Reference (1) If no P/N or S/N is identified as affected and placed in the Rules Docket. A copy (e) The actions must be done in accordance equipment according to the applicable of it, if filed, may be obtained from the with Airbus Service Bulletin A330–32A3139, service bulletin, no further action is required Rules Docket at the location provided Revision 01, including Appendix 01, dated by this AD. ADDRESSES. under the caption (2) If any P/N or S/N is identified as November 23, 2001; or Airbus Service Bulletin A340–32A4176, Revision 01, List of Subjects in 14 CFR Part 39 affected equipment according to the applicable service bulletin: Before further including Appendix 01, dated November 23, Air transportation, Aircraft, Aviation flight, perform the follow-on actions (which 2001; as applicable. This incorporation by safety, Incorporation by reference, may include a visual inspection for hydraulic reference was approved by the Director of the Safety. fluid leakage at the PBOV, repair or Federal Register in accordance with 5 U.S.C. replacement of the PBOV with a new or 552(a) and 1 CFR part 51. Copies may be Adoption of the Amendment serviceable part if leakage is found, and an obtained from Airbus Industrie, 1 Rond Point operational test) according to the applicable Maurice Bellonte, 31707 Blagnac Cedex, Accordingly, pursuant to the France. Copies may be inspected at the FAA, authority delegated to me by the service bulletin. If the affected PBOV is not replaced, or if the PBOV is replaced with a Transport Airplane Directorate, 1601 Lind Administrator, the Federal Aviation part having the same P/N or S/N, repeat the Avenue, SW., Renton, Washington; or at the Administration amends part 39 of the inspection thereafter at the time specified by Office of the Federal Register, 800 North Federal Aviation Regulations (14 CFR and according to the service bulletin, as Capitol Street, NW., suite 700, Washington, part 39) as follows: applicable, until the part is replaced. DC. Note 2: For the purposes of this AD, a Note 5: The subject of this AD is addressed PART 39—AIRWORTHINESS detailed inspection is defined as: ‘‘An in French airworthiness directives 2001– DIRECTIVES intensive visual examination of a specific 516(B) R1 and 2001–517(B) R1, both dated structural area, system, installation, or February 6, 2002. 1. The authority citation for part 39 assembly to detect damage, failure, or continues to read as follows: irregularity. Available lighting is normally Effective Date Authority: 49 U.S.C. 106(g), 40113, 44701. supplemented with a direct source of good (f) This amendment becomes effective on lighting at intensity deemed appropriate by May 8, 2002. § 39.13 [Amended] the inspector. Inspection aids such as mirror, Issued in Renton, Washington, on April 12, 2. Section 39.13 is amended by magnifying lenses, etc., may be used. Surface 2002. adding the following new airworthiness cleaning and elaborate access procedures may be required.’’ Ali Bahrami, directive: Acting Manager, Transport Airplane 2002–08–12 Airbus Industrie: Amendment Optional PBOV Modification/Replacement Directorate, Aircraft Certification Service. 39–12720. Docket 2001–NM–350–AD. (b) Modification of affected PBOVs, or their [FR Doc. 02–9567 Filed 4–22–02; 8:45 am] Applicability: Model A330 and A340 series replacement with new PBOVs, according to BILLING CODE 4910–13–U airplanes as listed in Airbus Service Bulletin Airbus Service Bulletin A330–32A3139 (for A330–32A3139 or A340–32A4176, both Model A330 series airplanes) or A340– Revision 01, dated November 23, 2001; 32A4176 (for Model A340 series airplanes), DEPARTMENT OF TRANSPORTATION certificated in any category. both Revision 01, dated November 23, 2001, Note 1: This AD applies to each airplane as applicable, terminates the requirements of Federal Aviation Administration identified in the preceding applicability this AD. provision, regardless of whether it has been Note 3: Accomplishment of the actions 14 CFR Part 39 modified, altered, or repaired in the area before the effective date of this AD according subject to the requirements of this AD. For to Airbus Service Bulletin A330–32A3139 or [Docket No. 2001–NM–371–AD; Amendment airplanes that have been modified, altered, or A340–32A4176, dated September 14, 2001, 39–12721; AD 2002–08–13] repaired so that the performance of the as applicable, is acceptable for compliance requirements of this AD is affected, the with the requirements of paragraphs (a) and RIN 2120–AA64 owner/operator must request approval for an (b) of this AD. alternative method of compliance in Airworthiness Directives; Airbus Model accordance with paragraph (c) of this AD. Alternative Methods of Compliance A319, A320, and A321 Series Airplanes The request should include an assessment of (c) An alternative method of compliance or AGENCY: Federal Aviation the effect of the modification, alteration, or adjustment of the compliance time that repair on the unsafe condition addressed by provides an acceptable level of safety may be Administration, DOT. this AD; and, if the unsafe condition has not used if approved by the Manager, ACTION: Final rule; request for been eliminated, the request should include International Branch, ANM–116, FAA, comments. specific proposed actions to address it. Transport Airplane Directorate. Operators Compliance: Required as indicated, unless shall submit their requests through an SUMMARY: This amendment adopts a accomplished previously. appropriate FAA Principal Maintenance new airworthiness directive (AD) that is
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applicable to all Airbus Model A319, SUPPLEMENTARY INFORMATION: The The service bulletin refers to Messier- A320, and A321 series airplanes. This Direction Ge´ne´rale de l’Aviation Civile Bugatti Service Bulletin A25315–32– action requires identification of the part (DGAC), which is the airworthiness 3215 as an additional source of service number and serial number of the authority for France, notified the FAA information for the PBOV repair. parking brake operated valve (PBOV); that an unsafe condition may exist on FAA’s Conclusions and, if necessary, inspection of the all Model A319, A320, and A321 series PBOV, including a functional check of airplanes. The DGAC advises that These airplane models are the PBOV, and follow-on and corrective leakage has been found on certain manufactured in France and are type- actions. This action also provides for parking brake operated valves (PBOVs) certificated for operation in the United optional terminating action for the on Airbus Model A320 series airplanes. States under the provisions of section requirements of this AD. This action is Those PBOVs have been installed on 21.29 of the Federal Aviation necessary to prevent loss of the yellow airplanes in production, and as spares Regulations (14 CFR 21.29) and the hydraulic system, which provides all on airplanes in service. The leakage may applicable bilateral airworthiness the hydraulics for certain spoilers; be found at one or more of three agreement. Pursuant to this bilateral elements of the hydraulics for flaps, hydraulic connections or at the vent airworthiness agreement, the DGAC has stabilizer, pitch and yaw feel systems, hole. The leakage has been attributed to kept the FAA informed of the situation pitch and yaw autopilot, and yaw excessive roughness of the piston rod described above. The FAA has damper; and elevator, rudder, and surface leading to wear of the internal examined the findings of the DGAC, aileron. This action is intended to seal. This condition, if not corrected, reviewed all available information, and address the identified unsafe condition. could result in loss of the yellow determined that AD action is necessary DATES: Effective May 8, 2002. hydraulic system including the parking for products of this type design that are The incorporation by reference of brake accumulator, loss of the parking/ certificated for operation in the United certain publications listed in the emergency braking system, and runway States. overrun when alternate/emergency regulations is approved by the Director Explanation of Requirements of Rule of the Federal Register as of May 8, braking is needed. The yellow circuit Since an unsafe condition has been 2002. also provides all the hydraulics for Comments for inclusion in the Rules certain spoilers; elements of the identified that is likely to exist or Docket must be received on or before hydraulics for flaps, stabilizer, pitch and develop on other airplanes of the same May 23, 2002. yaw feel systems, pitch and yaw type design registered in the United autopilot, and yaw damper; and States, this AD is being issued to ADDRESSES: Submit comments in prevent loss of the yellow hydraulic triplicate to the Federal Aviation elevator, rudder, and aileron. system, which provides all the Administration (FAA), Transport Related Rulemaking hydraulics for certain spoilers; elements Airplane Directorate, ANM–114, The FAA has issued or intends to of the hydraulics for flaps, stabilizer, Attention: Rules Docket No. 2001-NM– issue similar rulemaking for Airbus pitch and yaw feel systems, pitch and 371-AD, 1601 Lind Avenue, SW., Model A300 B2 and B4; A300 B4–600, yaw autopilot, and yaw damper; and Renton, Washington 98055–4056. B4–600R, and F4–600R (collectively elevator, rudder, and aileron. This AD Comments may be inspected at this called A300–600); A310; and A330 and requires accomplishment of the actions location between 9:00 a.m. and 3:00 A340 series airplanes. specified in the service bulletin p.m., Monday through Friday, except described previously, except as Federal holidays. Comments may be Explanation of Relevant Service discussed below. submitted via fax to (425) 227–1232. Information Comments may also be sent via the Airbus has issued Service Bulletin Difference Between AD and Relevant Internet using the following address: 9- A320–32A1233, dated August 16, 2001, Service Information [email protected]. Comments which describes procedures for Operators should note that, although sent via fax or the Internet must contain identifying the part number and serial the service bulletin specifies that the ‘‘Docket No. 2001–NM–371–AD’’ in the number of the PBOV. For a PBOV manufacturer may be contacted for subject line and need not be submitted having a certain part and serial number, disposition of certain repair conditions, in triplicate. Comments sent via the the service bulletin describes this AD requires those corrective actions Internet as attached electronic files must procedures for an inspection to detect to be accomplished in accordance with be formatted in Microsoft Word 97 for leakage or spray from the vent hole and a method approved by either the FAA Windows or ASCII text. to detect leakage or seepage of any of the or the DGAC (or its delegated agent). In The service information referenced in three hydraulic connections. The light of the type of action required to this AD may be obtained from Airbus inspection includes a test (functional address the identified unsafe condition, Industrie, 1 Rond Point Maurice check) of the PBOV. The service bulletin and in consonance with existing Bellonte, 31707 Blagnac Cedex, France. recommends repetitive tests if the PBOV bilateral airworthiness agreements, the This information may be examined at passes the test; and repair or FAA has determined that, for this AD, the FAA, Transport Airplane replacement if the PBOV fails, with corrective action approved by either the Directorate, 1601 Lind Avenue, SW., repetitive tests if necessary. For certain FAA or the DGAC is acceptable for Renton, Washington; or at the Office of conditions when a replacement spare is compliance. the Federal Register, 800 North Capitol unavailable, the service bulletin Street, NW., suite 700, Washington, DC. recommends contacting the Interim Action FOR FURTHER INFORMATION CONTACT: manufacturer for further action. The This is considered to be interim Rosanne Ryburn, Aerospace Engineer, DGAC classified this service bulletin as action. The FAA and the DGAC are International Branch, ANM–116, FAA, mandatory and issued French currently considering requiring Transport Airplane Directorate, 1601 airworthiness directive 2001–384(B), replacement of all affected PBOVs. Lind Avenue, SW., Renton, Washington dated September 5, 2001, to address this However, this AD does not require that 98055–4056; telephone (425) 227–2139; unsafe condition on airplanes operating action, but provides it as optional to fax (425) 227–1149. in France. terminate the repetitive actions required
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by this AD. The planned compliance Docket 2001–NM–371–AD.’’ The subject to the requirements of this AD. For time for the PBOV replacement is postcard will be date stamped and airplanes that have been modified, altered, or sufficiently long so that notice and returned to the commenter. repaired so that the performance of the opportunity for prior public comment requirements of this AD is affected, the Regulatory Impact owner/operator must request approval for an will be practicable. The regulations adopted herein will alternative method of compliance in Determination of Rule’s Effective Date accordance with paragraph (e) of this AD. not have a substantial direct effect on The request should include an assessment of Since a situation exists that requires the States, on the relationship between the effect of the modification, alteration, or the immediate adoption of this the national Government and the States, repair on the unsafe condition addressed by regulation, it is found that notice and or on the distribution of power and this AD; and, if the unsafe condition has not opportunity for prior public comment responsibilities among the various been eliminated, the request should include hereon are impracticable, and that good levels of government. Therefore, it is specific proposed actions to address it. cause exists for making this amendment determined that this final rule does not Compliance: Required as indicated, unless effective in less than 30 days. have federalism implications under accomplished previously. Executive Order 13132. To prevent loss of the yellow hydraulic Comments Invited The FAA has determined that this system, which provides all the hydraulics for Although this action is in the form of regulation is an emergency regulation certain spoilers; elements of the hydraulics for flaps, stabilizer, pitch and yaw feel a final rule that involves requirements that must be issued immediately to affecting flight safety and, thus, was not systems, pitch and yaw autopilot, and yaw correct an unsafe condition in aircraft, damper; and elevator, rudder, and aileron, preceded by notice and an opportunity and that it is not a ‘‘significant accomplish the following: for public comment, comments are regulatory action’’ under Executive invited on this rule. Interested persons Order 12866. It has been determined Inspection and Functional Check are invited to comment on this rule by further that this action involves an (a) Within 7 days after the effective date of submitting such written data, views, or emergency regulation under DOT this AD, identify the part number and serial arguments as they may desire. Regulatory Policies and Procedures (44 number of the parking brake operated valve (PBOV) to determine whether the PBOV is an Communications shall identify the FR 11034, February 26, 1979). If it is Rules Docket number and be submitted affected part, as identified by Airbus Service determined that this emergency Bulletin A320–32A1233, dated August 16, in triplicate to the address specified regulation otherwise would be 2001. under the caption ADDRESSES. All significant under DOT Regulatory (1) If the PBOV is NOT an affected part, no communications received on or before Policies and Procedures, a final further action is required by this AD. the closing date for comments will be regulatory evaluation will be prepared (2) If the PBOV is an affected part: Except considered, and this rule may be and placed in the Rules Docket. A copy as required by paragraph (b) of this AD, prior amended in light of the comments of it, if filed, may be obtained from the to further flight, test the PBOV in accordance received. Factual information that Rules Docket at the location provided with the service bulletin; and thereafter perform follow-on and corrective actions supports the commenter’s ideas and under the caption ADDRESSES. suggestions is extremely helpful in (including repetitive tests and repair of the List of Subjects in 14 CFR Part 39 PBOV or replacement with a serviceable evaluating the effectiveness of the AD PBOV) at the time specified by and in action and determining whether Air transportation, Aircraft, Aviation accordance with the service bulletin, as additional rulemaking action would be safety, Incorporation by reference, applicable. needed. Safety. (b) If Airbus Service Bulletin A320– Submit comments using the following 32A1233, dated August 16, 2001, specifies to format: Adoption of the Amendment contact the manufacturer for corrective • Organize comments issue-by-issue. Accordingly, pursuant to the action: Prior to further flight, perform the For example, discuss a request to authority delegated to me by the corrective action in accordance with a method approved by either the Manager, change the compliance time and a Administrator, the Federal Aviation request to change the service bulletin International Branch, ANM–116, FAA, Administration amends part 39 of the Transport Airplane Directorate, or the reference as two separate issues. Federal Aviation Regulations (14 CFR • Direction Ge´ne´rale de l’Aviation Civile For each issue, state what specific part 39) as follows: (DGAC) (or its delegated agent). change to the AD is being requested. • Include justification (e.g., reasons or PART 39—AIRWORTHINESS Optional Terminating Action data) for each request. DIRECTIVES (c) Replacement of the PBOV with a new, Comments are specifically invited on nonaffected PBOV terminates the the overall regulatory, economic, 1. The authority citation for part 39 requirements of this AD. Affected PBOVs are environmental, and energy aspects of continues to read as follows: identified in Airbus Service Bulletin A320– the rule that might suggest a need to Authority: 49 U.S.C. 106(g), 40113, 44701. 32A1233, dated August 16, 2001. modify the rule. All comments Spares § 39.13 [Amended] submitted will be available, both before (d) As of the effective date of this AD, no and after the closing date for comments, 2. Section 39.13 is amended by person may install an affected PBOV on any in the Rules Docket for examination by adding the following new airworthiness airplane, unless that PBOV is in compliance interested persons. A report that directive: with all applicable requirements of this AD. summarizes each FAA-public contact 2002–08–13 Airbus Industrie: Amendment Affected PBOVs are identified by Airbus concerned with the substance of this AD 39–12721. Docket 2001–NM–371–AD. Service Bulletin A320–32A1233, dated August 16, 2001. will be filed in the Rules Docket. Applicability: All Model A319, A320, and Commenters wishing the FAA to A321 series airplanes; certificated in any Alternative Methods of Compliance acknowledge receipt of their comments category. (e) An alternative method of compliance or submitted in response to this rule must Note 1: This AD applies to each airplane adjustment of the compliance time that submit a self-addressed, stamped identified in the preceding applicability provides an acceptable level of safety may be postcard on which the following provision, regardless of whether it has been used if approved by the Manager, statement is made: ‘‘Comments to modified, altered, or repaired in the area International Branch, ANM–116. Operators
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shall submit their requests through an applicable to all Airbus Model A300 B2 98055–4056; telephone (425) 227–1503; appropriate FAA Principal Maintenance and B4; A300 B4–600, B4–600R, and fax (425) 227–1149. Inspector, who may add comments and then F4–600R (collectively called A300–600); SUPPLEMENTARY INFORMATION: The send it to the Manager, International Branch, ANM–116. and A310 series airplanes. This action Direction Ge´ne´rale de l’Aviation Civile requires identification of the part Note 2: Information concerning the (DGAC), which is the airworthiness existence of approved alternative methods of number and serial number of the authority for France, notified the FAA compliance with this AD, if any, may be parking brake operated valve (PBOV); that an unsafe condition may exist on obtained from the International Branch, and, if necessary, inspection of the all Airbus Model A300 B2 and B4; A300 ANM–116. PBOV, including a functional check of B4–600, B4–600R, and F4–600R the PBOV, and follow-on and corrective (collectively called A300–600); and Special Flight Permits actions. This action also provides for A310 series airplanes. The DGAC (f) Special flight permits may be issued in optional terminating action for the advises that leakage has been found on accordance with sections 21.197 and 21.199 requirements of this AD. This action is certain parking brake operated valves of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to necessary to prevent loss of the yellow (PBOVs) on Airbus Model A320 series a location where the requirements of this AD hydraulic system, which provides all airplanes. It is possible that the same can be accomplished. the hydraulics for certain spoilers; type of PBOV may be installed on some elements of the hydraulics for flaps, Model A300 B2 and B4, A300–600, and Incorporation by Reference stabilizer, pitch and yaw feel systems, A310 series airplanes. Those PBOVs (g) Except as required by paragraph (b) of pitch and yaw autopilot, and yaw have been installed on airplanes in this AD: The actions must be done in damper; and elevator, rudder, and production, and as spares on airplanes accordance with Airbus Service Bulletin in service. The leakage may be found at A320–32A1233, including Appendix 01, aileron. This action is intended to dated August 16, 2001. This incorporation by address the identified unsafe condition. one or more of three hydraulic reference was approved by the Director of the DATES: Effective May 8, 2002. connections or at the vent hole. The Federal Register in accordance with 5 U.S.C. The incorporation by reference of leakage has been attributed to excessive 552(a) and 1 CFR part 51. Copies may be certain publications listed in the roughness of the piston rod surface obtained from Airbus Industrie, 1 Rond Point regulations is approved by the Director leading to wear of the internal seal. This Maurice Bellonte, 31707 Blagnac Cedex, of the Federal Register as of May 8, condition, if not corrected, could result France. Copies may be inspected at the FAA, 2002. in loss of the yellow hydraulic system Transport Airplane Directorate, 1601 Lind including the parking brake Avenue, SW., Renton, Washington; or at the Comments for inclusion in the Rules Office of the Federal Register, 800 North Docket must be received on or before accumulator, loss of the parking/ Capitol Street, NW., suite 700, Washington, May 23, 2002. emergency braking system, and runway DC. ADDRESSES: Submit comments in overrun when alternate/emergency Note 3: The subject of this AD is addressed triplicate to the Federal Aviation braking is needed. The yellow circuit in French airworthiness directive 2001– Administration (FAA), Transport also provides all the hydraulics for 384(B), dated September 5, 2001. Airplane Directorate, ANM–114, certain spoilers; elements of the hydraulics for flaps, stabilizer, pitch and Effective Date Attention: Rules Docket No. 2001-NM– 393-AD, 1601 Lind Avenue, SW., yaw feel systems, pitch and yaw (h) This amendment becomes effective on autopilot, and yaw damper; and May 8, 2002. Renton, Washington 98055–4056. Comments may be inspected at this elevator, rudder, and aileron. Issued in Renton, Washington, on April 12, location between 9 a.m. and 3 p.m., 2002. Related Rulemaking Monday through Friday, except Federal Ali Bahrami, The FAA has issued or intends to holidays. Comments may be submitted issue similar rulemaking for Airbus Acting Manager, Transport Airplane via fax to (425) 227–1232. Comments Directorate, Aircraft Certification Service. Model A319, A320, A321, A330, and may also be sent via the Internet using A340 series airplanes. [FR Doc. 02–9568 Filed 4–22–02; 8:45 am] the following address: 9-anm- BILLING CODE 4910–13–P [email protected]. Comments sent Explanation of Relevant Service via fax or the Internet must contain Information ‘‘Docket No. 2001–NM–393–AD’’ in the DEPARTMENT OF TRANSPORTATION Airbus has issued Service Bulletins subject line and need not be submitted A300–32A0441 (for Model A300 B2 and Federal Aviation Administration in triplicate. Comments sent via the B4 series airplanes), A300–32A6087 (for Internet as attached electronic files must Model A300–600 series airplanes), and 14 CFR Part 39 be formatted in Microsoft Word 97 for A310–32A2124 (for Model A310 series Windows or ASCII text. airplanes); all dated September 10, [Docket No. 2001–NM–393–AD; Amendment The service information referenced in 39–12722; AD 2002–08–14] 2001. The service bulletins describe this AD may be obtained from Airbus procedures for identifying the part RIN 2120–AA64 Industrie, 1 Rond Point Maurice number and serial number of the PBOV. Bellonte, 31707 Blagnac Cedex, France. For a PBOV having a certain part and Airworthiness Directives; Airbus Model This information may be examined at serial number, the service bulletins A300 B2 and B4; A300 B4–600, B4– the FAA, Transport Airplane describe procedures for an inspection to 600R, and F4–600R (Collectively Called Directorate, 1601 Lind Avenue, SW., detect leakage or spray from the vent A300–600); and A310 Series Airplanes Renton, Washington; or at the Office of hole and to detect leakage or seepage of AGENCY: Federal Aviation the Federal Register, 800 North Capitol the three hydraulic connections. The Administration, DOT. Street, NW., suite 700, Washington, DC. inspection includes a test (functional FOR FURTHER INFORMATION CONTACT: ACTION: Final rule; request for Tom check) of the PBOV. The service comments. Groves, Aerospace Engineer, bulletins recommend repetitive tests if International Branch, ANM–116, FAA, the PBOV passes the test; and repair or SUMMARY: This amendment adopts a Transport Airplane Directorate, 1601 replacement if the PBOV fails, with new airworthiness directive (AD) that is Lind Avenue, SW., Renton, Washington repetitive tests if necessary. For certain
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conditions when a replacement spare is Interim Action summarizes each FAA-public contact unavailable, the service bulletins This is considered to be interim concerned with the substance of this AD recommend contacting the manufacturer action. The FAA and the DGAC are will be filed in the Rules Docket. Commenters wishing the FAA to for further action. The DGAC classified currently considering requiring acknowledge receipt of their comments these service bulletins as mandatory and replacement of all affected PBOVs. submitted in response to this rule must issued French airworthiness directive However, this AD does not require that 2001–510(B), dated October 17, 2001, to submit a self-addressed, stamped action, but provides it as optional to address this unsafe condition on postcard on which the following terminate the repetitive actions required airplanes operating in France. statement is made: ‘‘Comments to by this AD. The planned compliance The service bulletins refer to Messier- Docket 2001–NM–393–AD.’’ The time for the PBOV replacement is Bugatti Service Bulletin A25315–32–822 postcard will be date stamped and sufficiently long so that notice and as an additional source of service returned to the commenter. information for the PBOV repair. opportunity for prior public comment will be practicable. Regulatory Impact FAA’s Conclusions Determination of Rule’s Effective Date The regulations adopted herein will These airplane models are not have a substantial direct effect on Since a situation exists that requires manufactured in France and are type- the States, on the relationship between the immediate adoption of this certificated for operation in the United the national Government and the States, regulation, it is found that notice and States under the provisions of section or on the distribution of power and opportunity for prior public comment 21.29 of the Federal Aviation responsibilities among the various hereon are impracticable, and that good Regulations (14 CFR 21.29) and the levels of government. Therefore, it is cause exists for making this amendment applicable bilateral airworthiness determined that this final rule does not effective in less than 30 days. agreement. Pursuant to this bilateral have federalism implications under airworthiness agreement, the DGAC has Comments Invited Executive Order 13132. kept the FAA informed of the situation The FAA has determined that this Although this action is in the form of described above. The FAA has regulation is an emergency regulation a final rule that involves requirements examined the findings of the DGAC, that must be issued immediately to affecting flight safety and, thus, was not reviewed all available information, and correct an unsafe condition in aircraft, preceded by notice and an opportunity determined that AD action is necessary and that it is not a ‘‘significant for public comment, comments are for products of this type design that are regulatory action’’ under Executive invited on this rule. Interested persons certificated for operation in the United Order 12866. It has been determined are invited to comment on this rule by States. further that this action involves an submitting such written data, views, or emergency regulation under DOT Explanation of Requirements of Rule arguments as they may desire. Regulatory Policies and Procedures (44 Communications shall identify the Since an unsafe condition has been FR 11034, February 26, 1979). If it is Rules Docket number and be submitted identified that is likely to exist or determined that this emergency in triplicate to the address specified develop on other airplanes of the same regulation otherwise would be under the caption ADDRESSES. All type design registered in the United significant under DOT Regulatory communications received on or before States, this AD is being issued to Policies and Procedures, a final the closing date for comments will be prevent loss of the yellow hydraulic regulatory evaluation will be prepared considered, and this rule may be system, which provides all the and placed in the Rules Docket. A copy amended in light of the comments hydraulics for certain spoilers; elements of it, if filed, may be obtained from the received. Factual information that of the hydraulics for flaps, stabilizer, Rules Docket at the location provided supports the commenter’s ideas and pitch and yaw feel systems, pitch and under the caption ADDRESSES. yaw autopilot, and yaw damper; and suggestions is extremely helpful in elevator, rudder, and aileron. This AD evaluating the effectiveness of the AD List of Subjects in 14 CFR Part 39 requires accomplishment of the actions action and determining whether Air transportation, Aircraft, Aviation specified in the service bulletins additional rulemaking action would be safety, Incorporation by reference, described previously, except as needed. Safety. discussed below. Submit comments using the following format: Adoption of the Amendment Difference Between AD and Relevant • Organize comments issued-by- Service Information Accordingly, pursuant to the issue. For example, discuss a request to authority delegated to me by the Operators should note that, although change the compliance time and a Administrator, the Federal Aviation the service bulletins specify that the request to change the service bulletin Administration amends part 39 of the manufacturer may be contacted for reference as two separate issues. • Federal Aviation Regulation (14 CFR disposition of certain repair conditions, For each issue, state what specific part 39) as follows: this AD requires those corrective actions change to the AD is being requested. to be accomplished in accordance with • Include justification (e.g., reasons or PART 39—AIRWORTHINESS a method approved by either the FAA data) for each request. DIRECTIVES or the DGAC (or its delegated agent). In Comments are specifically invited on light of the type of action required to the overall regulatory, economic, 1. The authority citation for part 39 address the identified unsafe condition, environmental, and energy aspects of continues to read as follows: and in consonance with existing the rule that might suggest a need to Authority: 49 U.S.C. 106(g), 40113, 44701. bilateral airworthiness agreements, the modify the rule. All comments FAA has determined that, for this AD, submitted will be available, both after § 39.13 [Amended] corrective action approved by either the the closing date for comments, in the 2. Section 39.13 is amended by FAA or the DGAC is acceptable for Rules Docket for examination by adding the following new airworthiness compliance. interested persons. A report that directive:
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2002–08–14 Airbus Industrie: Amendment Model A310 series airplanes), all dated Issued in Renton, Washington, on April 12, 39–12722. Docket 2001–NM–393–AD. September 10, 2001; as applicable. 2002. Applicability: All model A300 B2 and B4; Ali Bahrami, Spare A300 B4–600, B4–600R, and F4–600R Acting Manager, Transport Airplane (collectively called A300–600); and A310 (d) As of the effective date of this AD, no Directorate, Aircraft Certification Service. series airplanes; certificated in any category. person may install an affected PBOV on any [FR Doc. 02–9569 Filed 4–22–02; 8:45 am] airplane, unless that PBOV is in compliance Note 1: This AD applies to each airplane BILLING CODE 4910–13–P identified in the preceding applicability with all applicable requirements of this AD. provision, regardless of whether it has been Affected PBOVs are identified by Airbus modified, altered, or repaired in the area Service Bulletin A300–32A0441 (for Model DEPARTMENT OF TRANSPORTATION subject to the requirements of this AD. For A300 B2 and B4 series airplanes), A300– airplanes that have been modified, altered, or 32A6087 (for Model A300–600 series Federal Aviation Administration repaired so that the performance of the airplanes), or A310–32A2124 (for Model requirements of this AD is affected, the A310 series airplanes), all dated September owner/operator must request approval for an 14 CFR Part 39 10, 2001; as applicable. alternative method of compliance in [Docket No. 2002–CE–02–AD; Amendment accordance with paragraph (e) of this AD. Alternative Methods of Compliance The request should include an assessment of 39–12712; AD 2002–08–04] (e) An alternative method of compliance or the effect of the modification, alteration, or adjustment of the compliance time that repair on the unsafe condition addressed by RIN 2120–AA64 this AD; and, if the unsafe condition has not provides an acceptable level of safety may be been eliminated, the request should include used if approved by the Manager, Airworthiness Directives; PIAGGIO specific proposed actions to address it. International Branch, ANM–116. Operators AERO INDUSTRIES S.p.A. Model P–180 Compliance: Required as indicated, unless shall submit their requests through an Airplanes appropriate FAA Principal Maintenance accomplished previously. AGENCY: Inspector, who may add comments and then Federal Aviation To prevent loss of the yellow hydraulic Administration, DOT. system, which provides all the hydraulics for send it to the Manager, International Branch, certain spoilers; elements of the hydraulics ANM–116. ACTION: Final rule. for flaps, stabilizer, pitch and yaw feel Note: Information concerning the existence systems, pitch and yaw autopilot, and yaw SUMMARY: This amendment adopts a of approved alternative methods of new airworthiness directive (AD) that damper; and elevator, rudder, and aileron, compliance with this AD, if any, may be accomplish the following: applies to certain PIAGGIO AERO obtained from the International Branch, INDUSTRIES S.p.A. (PIAGGIO) Model Inspection and Functional Check ANM–116. P–180 airplanes. This AD requires you (a) Within 7 days after the effective date of Special Flight Permits to replace the four defective horizontal this AD, identify the part and serial number stabilizer hinge bushings with of the parking brake operated valve (PBOV) (f) Special flight permits may be issued in replacement bushings. This AD is the to determine whether the PBOV is an affected accordance with sections 21.197 and 21.199 result of mandatory continuing part, as identified by Airbus Service Bulletin of the Federal Aviation Regulation (14 CFR A300–32A0441 (for Model A300 B2 and B4 21.197 and 21.199) to operate the airplane to airworthiness information (MCAI) series airplanes), A300–32A6087 (for Model a location where the requirements of this AD issued by the airworthiness authority for A300–600 series airplanes), or A310– can be accomplished. Italy. The actions specified by this AD 32A2124 (for Model A310 series airplanes), are intended to replace defective all dated September 10, 2001; as applicable. Incorporation by Reference bushings before they cause failure of the (1) If the PBOV is NOT an affected part, no (g) Except as required by paragraph (b) of horizontal stabilizer. Such failure could further action is required by this AD; lead to reduced or loss of control of the (2) If the PBOV is an affected part: Except this AD: The actions must be done in as required by paragraph (b) of this AD, prior accordance with Airbus Service Bulletin aircraft. to further flight, test the PBOV in accordance A300–32A0441, including Appendix 01, DATES: This AD becomes effective on with the applicable service bulletin; and dated September 10, 2001; Airbus Service June 10, 2002. thereafter perform follow-on and corrective Bulletin A300–32A6087, including Appendix The Director of the Federal Register actions (including repetitive tests and repair 01, dated September 10, 2001; and Airbus approved the incorporation by reference of the PBOV or replacement with a Service Bulletin A310–21A2124, including of certain publications listed in the serviceable PBOV) at the time specified by Appendix 01, September 10, 2001. This regulations as of June 10, 2002. and in accordance with the service bulletin, incorporation by reference was approved by ADDRESSES: You may get the service as applicable. the Director of the Federal Register in (b) If the applicable service bulletin information referenced in this AD from accordance with 5 U.S.C. 552(a) and 1 CFR identified in paragraph (a) of this AD PIAGGIO AERO INDUSTRIES S.p.A, part 51. Copies may be obtained from Airbus specifies to contact ‘‘SEE32’’ for corrective Via Cibrario 4, 16154 Genoa, Italy; Industrie, 1 Rond Point Maurice Bellonte, action: Prior to further flight, perform the telephone: +39 010 6481 856; facsimile: 31707 Blagnac Cedex, France. Copies may be corrective action in accordance with a +39 010 6481 374. You may view this inspected at the FAA, Transport Airplane method approved by either the Manager, information at the Federal Aviation International Branch, ANM–116, FAA, Directorate, 1601 Lind Avenue, SW., Renton, Transport Airplane Directorate, or the Washington; or at the Office of the Federal Administration (FAA), Central Region, Direction Ge´ne´rale de l’ Aviation Civile Register, 800 North Capitol Street, NW., suite Office of the Regional Counsel, (DGAC) (or its delegated agent.) 700, Washington, DC. Attention: Rules Docket No. 2002–CE– 02–AD, 901 Locust, Room 506, Kansas Optional Terminating Action Note: The subject of this AD is addressed City, Missouri 64106; or at the Office of in French airworthiness directive 2001– (c) Replacement of the PBOV with a new, the Federal Register, 800 North Capitol 510(B), dated October 17, 2001. nonaffected PBOV terminates the Street, NW, suite 700, Washington, DC. requirements of this AD. Affected PBOVs are identified in Airbus Service Bulletin A300– Effective Date FOR FURTHER INFORMATION CONTACT: 32A0441 (for Model A300 B2 and B4 series (h) This amendment becomes effective on Doug Rudolph, Aerospace Engineer, airplanes), A300–32A6087 (for Model A300– May 8, 2002. FAA, Small Airplane Directorate, 901 600 series airplanes), or A310–32A2124 (for Locust, Room 301, Kansas City,
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Missouri 64106; telephone: (816) 329– Has FAA Taken Any Action to This presented above, we have determined 4059; facsimile: (816) 329–4090. Point? that air safety and the public interest require the adoption of the rule as SUPPLEMENTARY INFORMATION: We issued a proposal to amend part 39 of the Federal Aviation Regulations proposed except for minor editorial Discussion (14 CFR part 39) to include an AD that corrections. We have determined that these minor corrections: What Events Have Caused This AD? would apply to certain PIAGGIO Model P–180 airplanes. This proposal was —Provide the intent that was proposed published in the Federal Register as a The Ente Nazionale per l’ Aviazione in the NPRM for correcting the unsafe notice of proposed rulemaking (NPRM) Civile (ENAC), which is the condition; and airworthiness authority for Italy, on February 11, 2002 (67 FR 6205). The recently notified FAA that an unsafe NPRM proposed to require you to —Do not add any additional burden condition may exist on certain PIAGGIO replace the defective bushings, return upon the public than was already Model P–180 airplanes. The ENAC the bushings to PIAGGIO, and report the proposed in the NPRM. return to FAA. reports that PIAGGIO has discovered Cost Impact four incidents of defective horizontal Was the Public Invited To Comment? stabilizer hinge bushings being installed How Many Airplanes Does This AD The FAA encouraged interested Impact? on 4 PIAGGIO Model P–180 airplanes. persons to participate in the making of The defect is a missing thermal process this amendment. We did not receive any We estimate that this AD affects 2 during bushing manufacturing. comments on the proposed rule or on airplanes in the U.S. registry. What Is the Potential Impact if FAA our determination of the cost to the public. What Is the Cost Impact of This AD on Took No Action? Owners/Operators of the Affected FAA’s Determination Continued operation with defective Airplanes? bushings could result in failure of the What Is FAA’s Final Determination on This Issue? We estimate the following costs to horizontal stabilizer. Such failure could accomplish the replacement: lead to reduced or loss of control of the After careful review of all available aircraft. information related to the subject
Total cost per Total cost on U.S. opera- Labor cost Parts cost airplane tors
50 workhours×$60 per hour=$3,000 ...... $400 per aircraft ...... $3,400 $3,400×2=$6,800
Regulatory Impact substantial number of small entities Authority: 49 U.S.C. 106(g), 40113, 44701. under the criteria of the Regulatory Does This AD Impact Various Entities? § 39.13 [Amended] Flexibility Act. A copy of the final The regulations adopted herein will evaluation prepared for this action is 2. FAA amends § 39.13 by adding a not have a substantial direct effect on contained in the Rules Docket. A copy new AD to read as follows: the States, on the relationship between of it may be obtained by contacting the the national government and the States, Rules Docket at the location provided 2002–08–04 PIAGGIO AERO INDUSTRIES or on the distribution of power and under the caption ADDRESSES. S.p.A.: Amendment 39–12712; Docket No. 2002–CE–02–AD. responsibilities among the various List of Subjects in 14 CFR Part 39 levels of government. Therefore, it is (a) What airplanes are affected by this AD? determined that this final rule does not Air transportation, Aircraft, Aviation This AD affects Model P–180 airplanes, serial have federalism implications under safety, Incorporation by reference, numbers 1034, 1035, 1039, and 1045, that are Executive Order 13132. Safety. certificated in any category. (b) Who must comply with this AD? Does This AD Involve a Significant Rule Adoption of the Amendment Anyone who wishes to operate any of the or Regulatory Action? Accordingly, under the authority airplanes identified in paragraph (a) of this AD must comply with this AD. For the reasons discussed above, I delegated to me by the Administrator, the Federal Aviation Administration (c) What problem does this AD address? certify that this action (1) is not a The actions specified by this AD are intended ‘‘significant regulatory action’’ under amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: to replace defective bushings before they Executive Order 12866; (2) is not a cause failure of the horizontal stabilizer. ‘‘significant rule’’ under DOT PART 39—AIRWORTHINESS Such failure could lead to reduced or loss of Regulatory Policies and Procedures (44 DIRECTIVES control of the aircraft. FR 11034, February 26, 1979); and (3) (d) What actions must I accomplish to will not have a significant economic 1. The authority citation for part 39 address this problem? To address this impact, positive or negative, on a continues to read as follows: problem, you must accomplish the following:
Actions Compliance Procedures
(1) Replace the horizontal stabilizer hinge bush- Within the next 150 hours time-in-service Follow the ACCOMPLISHMENT INSTRUC- ings with replacement bushings (part number (TIS) after June 10, 2002 (the effective date TIONS section of PIAGGIO AERO INDUS- RDC. 19–09–167–1/300) (or FAA-approved of this AD). TRIES S.p.A Service Bulletin (Mandatory ) equivalent part number). No. SB–80–0140, dated October 15, 2001, and the applicable service manual.
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Actions Compliance Procedures
(2) Send the removed bushings to PIAGGIO Within 10 days after removing the bushings or Send the removed bushings to PIAGGIO AERO INDUSTRIES S.p.A. so the bushings within 10 days after June 10, 2002 (the ef- AERO INDUSTRIES S.p.A, Via Cibrario 4, cannot be reused and report the return to fective date of this AD), whichever occurs 16154 Genoa, Italy, and report the return to FAA. The Office of Management and Budget later. Doug Rudolph, FAA, at the address in (OMB) approved the information collection re- paragraph (f) of this AD. quirements contained in this regulation under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and as- signed OMB Control Number 2120–0056.
(e) Can I comply with this AD in any other (i) When does this amendment become in disengagement of the pintle pin from way? You may use an alternative method of effective? This amendment becomes effective the pintle fitting bearing, and compliance or adjust the compliance time if: on June 10, 2002. consequent collapse of the MLG during (1) Your alternative method of compliance Issued in Kansas City, Missouri, on April landing. provides an equivalent level of safety; and 10, 2002. (2) The Manager, Standards Office, Small DATES: Effective May 28, 2002. Airplane Directorate, approves your James E. Jackson, The incorporation by reference of alternative. Submit your request through an Acting Manager, Small Airplane Directorate, Airbus Service Bulletin A320–32–1213, FAA Principal Maintenance Inspector, who Aircraft Certification Service. Revision 02, dated February 9, 2001, as may add comments and then send it to the [FR Doc. 02–9389 Filed 4–22–02; 8:45 am] listed in the regulations, is approved by Manager, Standards Office, Small Airplane BILLING CODE 4910–13–P the Director of the Federal Register as of Directorate. May 28, 2002. Note 1: This AD applies to each airplane The incorporation by reference of identified in paragraph (a) of this AD, DEPARTMENT OF TRANSPORTATION regardless of whether it has been modified, certain other publications, as listed in the regulations, was approved altered, or repaired in the area subject to the Federal Aviation Administration requirements of this AD. For airplanes that previously by the Director of the Federal have been modified, altered, or repaired so Register as of June 30, 2000 (65 FR that the performance of the requirements of 14 CFR Part 39 34059, May 26, 2000). this AD is affected, the owner/operator must [Docket No. 2000–NM–338–AD; Amendment The incorporation by reference of request approval for an alternative method of 39–12677; AD 2002–06–01] Airbus All Operator Telex (AOT) 32–17, compliance in accordance with paragraph (e) Revision 01, dated November 6, 1997, as of this AD. The request should include an RIN 2120–AA64 assessment of the effect of the modification, listed in the regulations, was approved alteration, or repair on the unsafe condition Airworthiness Directives; Airbus Model previously by the Director of the Federal addressed by this AD; and, if you have not A319, A320, and A321 Series Airplanes Register as of August 12, 1998 (63 FR eliminated the unsafe condition, specific 36834, July 8, 1998). AGENCY: Federal Aviation actions you propose to address it. ADDRESSES: The service information (f) Where can I get information about any Administration, DOT. referenced in this AD may be obtained already-approved alternative methods of ACTION: Final rule. from Airbus Industrie, 1 Rond Point compliance? Contact Doug Rudolph, Maurice Bellonte, 31707 Blagnac Cedex, Aerospace Engineer, FAA, Small Airplane SUMMARY: This amendment supersedes Directorate, 901 Locust, Room 301, Kansas two existing airworthiness directives France. This information may be City, Missouri 64106; telephone: (816) 329– (ADs), applicable to certain Airbus examined at the Federal Aviation 4059; facsimile: (816) 329–4090. Model A319, A320, and A321 series Administration (FAA), Transport (g) What if I need to fly the airplane to airplanes. The first AD currently Airplane Directorate, Rules Docket, another location to comply with this AD? The requires removing the existing forward 1601 Lind Avenue, SW., Renton, FAA can issue a special flight permit under Washington; or at the Office of the sections 21.197 and 21.199 of the Federal pintle nut and cross bolt on the main landing gear (MLG), and installing a Federal Register, 800 North Capitol Aviation Regulations (14 CFR 21.197 and Street, NW., suite 700, Washington, DC. 21.199) to operate your airplane to a location new nylon spacer and cross bolt and where you can accomplish the requirements nut. The second AD currently requires FOR FURTHER INFORMATION CONTACT: Tim of this AD. repetitive inspections for discrepancies Dulin, Aerospace Engineer, (h) Are any service bulletins incorporated of the lock bolt for the pintle pin on the International Branch, ANM–116, FAA, into this AD by reference? Actions required MLG, follow-on corrective actions if Transport Airplane Directorate, 1601 by this AD must be done in accordance with necessary, and retorquing of the forward Lind Avenue, SW., Renton, Washington PIAGGIO AERO INDUSTRIES S.p.A Service pintle pin lock bolt for certain airplanes. 98055–4056; telephone (425) 227–2141; Bulletin (Mandatory ) No. SB–80–0140, dated fax (425) 227–1149. October 15, 2001. The Director of the Federal That AD also provides an optional Register approved this incorporation by terminating action. This amendment SUPPLEMENTARY INFORMATION: A reference under 5 U.S.C. 552(a) and 1 CFR cancels the requirements of the first AD, proposal to amend part 39 of the Federal part 51. You may get copies from PIAGGIO continues the requirements of the Aviation Regulations (14 CFR part 39) AERO INDUSTRIES S.p.A, Via Cibrario 4, second AD, and requires the previously by superseding AD 96–10–18, 16154 Genoa, Italy. You may view copies at optional terminating action that the amendment 39–9625 (61 FR 24690, May the FAA, Central Region, Office of the second AD provides. This amendment is 16, 1996), which is applicable to certain Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri, or at the Office of the prompted by issuance of mandatory Airbus Model A320–111, –211, –212, Federal Register, 800 North Capitol Street, continuing airworthiness information by and –231 series airplanes; and AD NW, suite 700, Washington, DC. a foreign civil airworthiness authority. 2000–10–16, amendment 39–11740 (65 Note 2: The subject of this AD is addressed The actions specified by this AD are FR 34059, May 26, 2000), which is in Italian AD Number 2001–512, dated intended to prevent a rotated, damaged, applicable to certain Airbus Model November 30, 2001. or missing lock bolt, which could result A319, A320, and A321 series airplanes;
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was published in the Federal Register The new action that is required by PART 39—AIRWORTHINESS on November 23, 2001 (66 FR 58684). this AD will take approximately 3 work DIRECTIVES The action proposed to cancel the hours per airplane to accomplish, at an requirements of the first AD, and average labor rate of $60 per work hour. 1. The authority citation for part 39 continue to require the second AD’s Required parts will cost approximately continues to read as follows: repetitive inspections for discrepancies $1,080 per airplane. Based on these Authority: 49 U.S.C. 106(g), 40113, 44701. of the lock bolt for the pintle pin on the figures, the cost impact of the new main landing gear (MLG), follow-on requirements of this AD on U.S. § 39.13 [Amended] corrective actions if necessary, and operators is estimated to be $429,660, or 2. Section 39.13 is amended by retorquing of the forward pintle pin lock $1,260 per airplane. removing amendments 39–11740 (65 FR bolt for certain airplanes. The action The cost impact figures discussed 34059, May 26, 2000), and 39–9625 (61 also proposed to require the previously above are based on assumptions that no FR 24690, May 16, 1996), and by adding optional terminating action that was operator has yet accomplished any of a new airworthiness directive (AD), provided for in the second AD. the requirements of this AD action, and amendment 39–12677, to read as follows: Comments that no operator would accomplish those actions in the future if this AD 2002–06–01 Airbus Industrie: Amendment Interested persons have been afforded were not adopted. The cost impact 39–12677. Docket 2000-NM–338-AD. an opportunity to participate in the figures discussed in AD rulemaking Supersedes AD 2000–10–16, making of this amendment. Due actions represent only the time Amendment 39–11740; and AD 96–10– consideration has been given to the necessary to perform the specific actions 18, Amendment 39–9625. comments received from a single actually required by the AD. These Applicability: Model A319, A320, and commenter. The commenter generally figures typically do not include A321 series airplanes, certificated in any supports the intent of the proposed rule, incidental costs, such as the time category, except those on which Airbus and has no objection to the FAA’s required to gain access and close up, Service Bulletin A320–32–1213, dated March proposal to mandate the terminating planning time, or time necessitated by 21, 2000 (reference Airbus Modification action, though the commenter believes other administrative actions. 28903 or 30044) has been accomplished. that the repetitive inspections for Note 1: This AD applies to each airplane Regulatory Impact discrepancies of the lock bolt for the identified in the preceding applicability provision, regardless of whether it has been pintle pin on the MLG are sufficient to The regulations adopted herein will otherwise modified, altered, or repaired in ensure safety. not have a substantial direct effect on the area subject to the requirements of this the States, on the relationship between Correct Cost Impact Estimate AD. For airplanes that have been modified, the national Government and the States, altered, or repaired so that the performance The commenter points out that the or on the distribution of power and of the requirements of this AD is affected, the proposed rule incorrectly estimates the responsibilities among the various owner/operator must request approval for an cost impact of the terminating action. levels of government. Therefore, it is alternative method of compliance in While the proposed rule estimates the determined that this final rule does not accordance with paragraph (d)(1) of this AD. parts cost as $540 per airplane, the have federalism implications under The request should include an assessment of the effect of the modification, alteration, or actual cost is $540 per MLG leg, for a Executive Order 13132. repair on the unsafe condition addressed by total parts cost of $1,080 per airplane. For the reasons discussed above, I this AD; and, if the unsafe condition has not We concur with the commenter and certify that this action (1) is not a been eliminated, the request should include have revised the Cost Impact section of ‘‘significant regulatory action’’ under specific proposed actions to address it. this final rule accordingly. Executive Order 12866; (2) is not a Compliance: Required as indicated, unless ‘‘significant rule’’ under DOT accomplished previously. Conclusion Regulatory Policies and Procedures (44 To prevent a rotated, damaged, or missing After careful review of the available FR 11034, February 26, 1979); and (3) lock bolt, which could result in data, including the comments noted will not have a significant economic disengagement of the pintle pin from the above, the FAA has determined that air impact, positive or negative, on a pintle fitting bearing, and consequent safety and the public interest require the collapse of the main landing gear (MLG) substantial number of small entities during landing, accomplish the following: adoption of the rule with the change under the criteria of the Regulatory previously described. The FAA has Note 2: Paragraphs (a) and (b) of this AD Flexibility Act. A final evaluation has repeat the actions that were previously determined that this change will neither been prepared for this action and it is mandated by AD 2000–10–16. The intent of increase the economic burden on any contained in the Rules Docket. A copy including these paragraphs is to ensure that operator nor increase the scope of the of it may be obtained from the Rules the currently required repetitive inspections AD. Docket at the location provided under continue to be accomplished until the the caption ADDRESSES. terminating modifications are installed. Cost Impact List of Subjects in 14 CFR Part 39 Restatement of Requirements of AD 2000– There are approximately 341 Model 10–16 A319, A320, and A321 series airplanes Air transportation, Aircraft, Aviation of U.S. registry affected by this AD. safety, Incorporation by reference, Inspection The actions that are currently Safety. (a) Perform a detailed inspection to detect discrepancies (rotation, damage, and required by AD 2000–10–16 take Adoption of the Amendment approximately 2 work hours per absence) of the lock bolt for the pintle pin on airplane to accomplish, at an average Accordingly, pursuant to the the MLG, in accordance with Airbus All Operator Telex (AOT) 32–17, Revision 01, labor rate of $60 per work hour. Based authority delegated to me by the dated November 6, 1997; Airbus Service on these figures, the cost impact of the Administrator, the Federal Aviation Bulletin A320–32–1187, dated June 17, 1998; currently required actions on U.S. Administration amends part 39 of the or Airbus Service Bulletin A320–32–1187, operators is estimated to be $120 per Federal Aviation Regulations (14 CFR Revision 01, dated February 17, 1999; at the airplane, per inspection cycle. part 39) as follows: latest of the times specified in paragraphs
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(a)(1), (a)(2), and (a)(3) of this AD. If any November 15, 2000, is considered acceptable Effective Date discrepancy is detected, prior to further for compliance with paragraph (c) of this AD. (g) This amendment becomes effective on flight, perform corrective actions, as May 28, 2002. applicable, in accordance with the AOT or Alternative Methods of Compliance service bulletin. Repeat the inspection (d)(1) An alternative method of compliance Issued in Renton, Washington, on April 11, thereafter at intervals not to exceed 1,000 or adjustment of the compliance time that 2002. flight cycles or 15 months, whichever occurs provides an acceptable level of safety may be Vi L. Lipski, first, unless the terminating action of used if approved by the Manager, Manager, Transport Airplane Directorate, paragraph (c) of this AD is accomplished. International Branch, ANM–116, Transport Aircraft Certification Service. After June 30, 2000 (the effective date of AD Airplane Directorate, FAA. Operators shall [FR Doc. 02–9573 Filed 4–22–02; 8:45 am] 2000–10–16, amendment 39–11740), only submit their requests through an appropriate Airbus Service Bulletin A320–32–1187, BILLING CODE 4910–13–U FAA Principal Maintenance Inspector, who Revision 01, dated February 17, 1999, shall may add comments and then send it to the be used for compliance with this paragraph. Manager, International Branch, ANM–116. (1) Within 30 months since the airplane’s DEPARTMENT OF TRANSPORTATION date of manufacture or prior to the (2) Alternative methods of compliance, accumulation of 2,000 total flight cycles, approved previously in accordance with AD Federal Aviation Administration whichever occurs first. 2000–10–16, amendment 39–11740, are (2) Within 15 months or 1,000 flight cycles approved as alternative methods of 14 CFR Part 39 after the last gear replacement or compliance with this AD. accomplishment of Airbus Service Bulletin Note 5: Information concerning the [Docket No. 2001–NM–209–AD; Amendment A320–32–1119, Revision 1, dated June 13, existence of approved alternative methods of 39–12723; AD 2002–08–15] 1994, whichever occurs first. compliance with this AD, if any, may be (3) Within 500 flight cycles after August obtained from the Manager, International RIN 2120–AA64 12, 1998 (the effective date of AD 98–14–11, Branch, ANM–116. amendment 39–10644). Airworthiness Directives; Boeing Note 3: For the purposes of this AD, a Special Flight Permits Model 767 Series Airplanes detailed inspection is defined as: ‘‘An (e) Special flight permits may be issued in AGENCY: Federal Aviation intensive visual examination of a specific accordance with sections 21.197 and 21.199 structural area, system, installation, or of the Federal Aviation Regulations (14 CFR Administration, DOT. assembly to detect damage, failure, or 21.197 and 21.199) to operate the airplane to ACTION: Final rule. irregularity. Available lighting is normally a location where the requirements of this AD supplemented with a direct source of good can be accomplished. SUMMARY: This amendment adopts a lighting at intensity deemed appropriate by new airworthiness directive (AD), the inspector. Inspection aids such as mirror, Incorporation by Reference applicable to certain Boeing Model 767 magnifying lenses, etc., may be used. Surface (f) The actions shall be done in accordance series airplanes, that requires an cleaning and elaborate access procedures with Airbus All Operator Telex (AOT) 32–17, inspection of the tripod strut assembly may be required.’’ Revision 01, dated November 6, 1997, Airbus of the inboard support of the leading Service Bulletin A320–32–1187, dated June edge slat of the wing for a preload One-Time Follow-on Actions 17, 1998, or Airbus Service Bulletin A320– (b) For airplanes on which the actions 32–1187, Revision 01, dated February 17, condition, and follow-on actions. For described in paragraph 2.B.(2)(c) of Airbus 1999; and Airbus Service Bulletin A320–32– certain airplanes, this AD also requires Service Bulletin A320–32–1187, Revision 01, 1213, Revision 02, dated February 9, 2001; as inspection and replacement of the dated February 17, 1999, have not been applicable. existing tripod struts with new, accomplished: At the time of the initial (1) The incorporation by reference of adjustable struts, if necessary. This inspection or the next repetitive inspection Airbus Service Bulletin A320–32–1213, action is necessary to prevent damage to required by paragraph (a) of this AD, perform Revision 02, dated February 9, 2001, is the tripod strut assembly due to a the applicable one-time follow-on actions approved by the Director of the Federal preload condition, which could result in (including retorquing the forward pintle pin Register in accordance with 5 U.S.C. 552(a) loss of control of the inboard leading lock bolt and applying sealant to the head of and 1 CFR part 51. the lock bolt), in accordance with section edge slat or separation of the slat from (2) The incorporation by reference Airbus the airplane, and consequent reduced 2.B.(2)(c) of the Accomplishment Instructions Service Bulletin A320–32–1187, dated June of Airbus Service Bulletin A320–32–1187, 17, 1998; and Airbus Service Bulletin A320– controllability of the airplane. This Revision 01, dated February 17, 1999. 32–1187, Revision 01, dated February 17, action is intended to address the identified unsafe condition. New Actions Required by This AD 1999; was approved previously by the Director of the Federal Register, as of June 30, DATES: Effective May 28, 2002. Terminating Modification 2000 (65 FR 34059, May 26, 2000). The incorporation by reference of (c) Within 5 years from the effective date (3) The incorporation by reference of certain publications listed in the of this AD, or at the next MLG overhaul, Airbus All Operator Telex (AOT) 32–17, regulations is approved by the Director whichever occurs later, modify the forward Revision 01, dated November 6, 1997, was of the Federal Register as of May 28, approved previously by the Director of the pintle pin cross bolt on both the left and right 2002. MLG (including a detailed inspection to Federal Register as of August 12, 1998 (63 FR ensure that the bolts are in proper position 36834, July 8, 1998). ADDRESSES: The service information and are not broken, and repair if necessary; (4) Copies of any of these service referenced in this AD may be obtained and removal and installation of the lock documents may be obtained from Airbus from Boeing Commercial Airplane bolts), in accordance with Airbus Service Industrie, 1 Rond Point Maurice Bellonte, Group, P.O. Box 3707, Seattle, 31707 Blagnac Cedex, France. Copies may be Bulletin A320–32–1213, Revision 02, dated Washington 98124–2207. This February 9, 2001. This modification inspected at the FAA, Transport Airplane constitutes terminating action for the Directorate, 1601 Lind Avenue, SW., Renton, information may be examined at the requirements of this AD. Washington; or at the Office of the Federal Federal Aviation Administration (FAA), Note 4: Accomplishment of the actions Register, 800 North Capitol Street, NW., suite Transport Airplane Directorate, Rules required in paragraph (c) of this AD, prior to 700, Washington, DC. Docket, 1601 Lind Avenue, SW., the effective date of this AD, in accordance Note 6: The subject of this AD is addressed Renton, Washington; or at the Office of with Airbus Service Bulletin A320–32–1213, in French airworthiness directive 2000–428– the Federal Register, 800 North Capitol dated March 21, 2000, or Revision 01, dated 153(B), Revision 1, dated November 29, 2000. Street, NW., suite 700, Washington, DC.
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FOR FURTHER INFORMATION CONTACT: John Should an operator be required to substantial number of small entities Craycraft, Aerospace Engineer, Airframe accomplish the rework of the fitting under the criteria of the Regulatory Branch, ANM–120S, FAA, Seattle assembly, it will take approximately 4 Flexibility Act. A final evaluation has Aircraft Certification Office, 1601 Lind work hours per airplane, at an average been prepared for this action and it is Avenue, SW., Renton, Washington labor rate of $60 per work hour. Based contained in the Rules Docket. A copy 98055–4056; telephone (425) 227–2782; on these figures, the cost impact of this of it may be obtained from the Rules fax (425) 227–1181. rework, if accomplished, will be $240 Docket at the location provided under SUPPLEMENTARY INFORMATION: A per airplane. the caption ADDRESSES. proposal to amend part 39 of the Federal Should an operator be required to List of Subjects in 14 CFR Part 39 Aviation Regulations (14 CFR part 39) to accomplish the high frequency eddy include an airworthiness directive (AD) current inspection, it will take Air transportation, Aircraft, Aviation that is applicable to certain Boeing approximately 5 work hours per safety, Incorporation by reference, Model 767 series airplanes was airplane, at an average labor rate of $60 Safety. per work hour. Based on these figures, published in the Federal Register on Adoption of the Amendment January 2, 2002 (67 FR 35). That action the cost impact of this inspection, if proposed to require an inspection of the accomplished, will be $300 per Accordingly, pursuant to the tripod strut assembly of the inboard airplane. authority delegated to me by the support of the leading edge slat of the Should an operator be required to Administrator, the Federal Aviation wing for a preload condition, and accomplish the replacement of the main Administration amends part 39 of the follow-on actions. For certain airplanes, strut support fitting, it will take Federal Aviation Regulations (14 CFR that action also proposed to require approximately 14 work hours per part 39) as follows: inspection and replacement of the airplane to accomplish the replacement existing tripod struts with new, (on both the left and right wings of the PART 39—AIRWORTHINESS adjustable struts, if necessary. airplane, excluding the time for gaining DIRECTIVES access and closing up), at an average 1. The authority citation for part 39 Comments labor rate of $60 per work hour. continues to read as follows: Interested persons have been afforded Required parts will cost approximately an opportunity to participate in the $12,380 per airplane. Based on these Authority: 49 U.S.C. 106(g), 40113, 44701. making of this amendment. No figures, the cost impact of the § 39.13 [Amended] comments were submitted in response replacement, if accomplished, will be $13,220 per airplane. 2. Section 39.13 is amended by to the proposal or the FAA’s adding the following new airworthiness determination of the cost to the public. Should an operator be required to accomplish the inspection for directive: Conclusion improperly cut and spliced struts, it will 2002–08–15 Boeing: Amendment 39–12723. The FAA has determined that air take approximately 1 work hour per Docket 2001–NM–209–AD. safety and the public interest require the airplane, at an average labor rate of $60 Applicability: Model 767 series airplanes, adoption of the rule as proposed. per work hour. Based on these figures, line numbers 160 through 541 inclusive, the cost impact of this inspection, if certificated in any category. Cost Impact accomplished, will be $60 per airplane. Note 1: This AD applies to each airplane There are approximately 379 Model Should an operator be required to identified in the preceding applicability 767 series airplanes of the affected accomplish the replacement of a cut and provision, regardless of whether it has been design in the worldwide fleet. The FAA spliced strut with a new, adjustable modified, altered, or repaired in the area subject to the requirements of this AD. For estimates that 136 airplanes of U.S. tripod strut, it will take approximately registry will be affected by this AD. airplanes that have been modified, altered, or 4 work hours per airplane, at an average repaired so that the performance of the It will take approximately 1 work labor rate of $60 per work hour. Based requirements of this AD is affected, the hour per airplane to accomplish the on these figures, the cost impact of this owner/operator must request approval for an required inspections of the tripod strut replacement, if accomplished, will be alternative method of compliance in assembly and bushing holes, at an $240 per airplane. accordance with paragraph (e) of this AD. average labor rate of $60 per work hour. The request should include an assessment of Based on these figures, the cost impact Regulatory Impact the effect of the modification, alteration, or of the inspections required by this AD The regulations adopted herein will repair on the unsafe condition addressed by on U.S. operators is estimated to be not have a substantial direct effect on this AD; and, if the unsafe condition has not $8,160, or $60 per airplane. the States, on the relationship between been eliminated, the request should include specific proposed actions to address it. The cost impact figure discussed the national Government and the States, above is based on assumptions that no or on the distribution of power and Compliance: Required as indicated, unless operator has yet accomplished any of accomplished previously. responsibilities among the various To prevent damage to the tripod strut the requirements of this AD action, and levels of government. Therefore, it is assembly due to a preload condition, which that no operator would accomplish determined that this final rule does not could result in loss of control of the inboard those actions in the future if this AD have federalism implications under leading edge slat or separation of the slat were not adopted. The cost impact Executive Order 13132. from the airplane, and consequent reduced figures discussed in AD rulemaking For the reasons discussed above, I controllability of the airplane, accomplish actions represent only the time certify that this action (1) is not a the following: necessary to perform the specific actions ‘‘significant regulatory action’’ under Inspections actually required by the AD. These Executive Order 12866; (2) is not a (a) For all airplanes: Before the figures typically do not include ‘‘significant rule’’ under DOT accumulation of 5,000 total flight cycles or incidental costs, such as the time Regulatory Policies and Procedures (44 within 24 months after the effective date of required to gain access and close up, FR 11034, February 26, 1979); and (3) this AD, whichever is later: Do a general planning time, or time necessitated by will not have a significant economic visual inspection (check) of the tripod strut other administrative actions. impact, positive or negative, on a assembly of the inboard leading edge slat of
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each wing for a preload condition, per Figure Inspection/Replacement of Tripod Struts DEPARTMENT OF TRANSPORTATION 2 of Boeing Service Bulletin 767–57A0058, (d) For Group 2 airplanes that have not Revision 1, dated May 27, 1999. accomplished Boeing Service Bulletin 767– Federal Aviation Administration Note 2: For the purposes of this AD, a 57–0037, dated January 14, 1993: Before general visual inspection is defined as: ‘‘A further flight after doing the inspections and 14 CFR Part 39 visual examination of an interior or exterior follow-on actions required by paragraphs (a), area, installation, or assembly to detect (b), and (c) of this AD, do a general visual [Docket No. 98–ANE–47–AD; Amendment 39–12719; AD 2002–08–11] obvious damage, failure, or irregularity. This inspection of the tripod struts to determine level of inspection is made under normally if they have been cut and spliced, per the available lighting conditions such as RIN 2120–AA64 Accomplishment Instructions of the service daylight, hangar lighting, flashlight, or drop- light and may require removal or opening of bulletin. Airworthiness Directives; Pratt & access panels or doors. Stands, ladders, or (1) If the tripod struts have been cut and Whitney JT9D Series Turbofan Engines platforms may be required to gain proximity spliced with fewer than six hi-loks, before to the area being checked.’’ further flight, replace with new, adjustable AGENCY: Federal Aviation struts, per Figure 1 of the Accomplishment (1) If no preload condition is found, before Administration, DOT. further flight, inspect the fitting assembly Instructions of the service bulletin. ACTION: Final rule. bushing holes for roundness, per Figure 5 of (2) If the tripod struts have not been cut the Accomplishment Instructions of the and spliced, or they have been cut and SUMMARY: This amendment supersedes service bulletin. spliced with six hi-loks, no further action is an existing airworthiness directive (AD), (i) If all the bushing holes are round, before required by this paragraph. that is applicable to certain Pratt & further flight, do the inspection required by Alternative Methods of Compliance Whitney JT9D series turbofan engines. paragraph (c) of this AD. (e) An alternative method of compliance or That AD currently requires revisions to (ii) If any bushing hole is not round, before the Airworthiness Limitations Section further flight, do the inspections required by adjustment of the compliance time that paragraphs (b) and (c) of this AD. provides an acceptable level of safety may be (ALS) of the manufacturer’s Instructions (2) If a preload condition is found, before used if approved by the Manager, Seattle for Continued Airworthiness (ICA) to further flight, do the inspections required by Aircraft Certification Office (ACO), FAA. include required enhanced inspection of paragraphs (b) and (c) of this AD. Operators shall submit their requests through selected critical life-limited parts at an appropriate FAA Principal Maintenance Follow-on Actions each piece-part exposure. This action Inspector, who may add comments and then adds additional critical life-limited parts (b) For airplanes subject to paragraph send it to the Manager, Seattle ACO. for enhanced inspection. This (a)(1)(ii) or (a)(2) of this AD: Do a high Note 4: Information concerning the amendment is prompted by an FAA frequency eddy current inspection of the existence of approved alternative methods of fitting assembly lug for cracking, per Figure study of in-service events involving compliance with this AD, if any, may be uncontained failures of critical rotating 6 of the Accomplishment Instructions of obtained from the Seattle ACO. Boeing Service Bulletin 767–57A0058, engine parts. The actions specified by Revision 1, dated May 27, 1999. Special Flight Permits this AD are intended to prevent critical (1) If no cracking is found, or if cracking life-limited rotating engine part failure, is found in the lug bore only, before further (f) Special flight permits may be issued in accordance with sections 21.197 and 21.199 which could result in an uncontained flight, rework the fitting assembly lug, per engine failure and damage to the Figure 7 of the Accomplishment Instructions of the Federal Aviation Regulations (14 CFR of the service bulletin. 21.197 and 21.199) to operate the airplane to airplane. (2) If cracking is found in the fitting lug a location where the requirements of this AD DATES: Effective date May 28, 2002. base or the lug bore and base, before further can be accomplished. ADDRESSES: The information referenced flight, purge the auxiliary fuel tank and Incorporation by Reference replace the fitting assembly lug, per Figure 8 in this AD may be examined, by of the Accomplishment Instructions of the (g) The actions shall be done in accordance appointment, at the Federal Aviation service bulletin. with Boeing Service Bulletin 767–57A0058, Administration (FAA), New England (c) For airplanes subject to paragraph Revision 1, dated May 27, 1999; and Boeing Region, Office of the Regional Counsel, (a)(1)(i), (a)(1)(ii), or (a)(2) of this AD: Do a Service Bulletin 767–57–0037, dated January 12 New England Executive Park, general visual inspection of the bushing 14, 1993; as applicable. This incorporation by Burlington, MA; or at the Office of the holes of the main strut assembly to determine reference was approved by the Director of the Federal Register, 800 North Capitol if the bushing holes are round, per Figure 9 Federal Register in accordance with 5 U.S.C. Street, NW, suite 700, Washington, DC. of the Accomplishment Instructions of 552(a) and 1 CFR part 51. Copies may be Boeing Service Bulletin 767–57A0058, obtained from Boeing Commercial Airplane FOR FURTHER INFORMATION CONTACT: Tara Revision 1, dated May 27, 1999. Group, P.O. Box 3707, Seattle, Washington Goodman, Aerospace Engineer, Engine (1) If the bushing holes are round, before 98124–2207. Copies may be inspected at the Certification Office, FAA, Engine and further flight, assemble the tripod assembly, FAA, Transport Airplane Directorate, 1601 Propeller Directorate, 12 New England per Figure 11 or Figure 12, as applicable, of Lind Avenue, SW., Renton, Washington; or at Executive Park, Burlington, MA 01803– the Accomplishment Instructions of the the Office of the Federal Register, 800 North 5299; telephone (781) 238–7130, fax service bulletin. Capitol Street, NW., suite 700, Washington, (781) 238–7199. (2) If the bushing holes are not round, DC. before further flight, replace the main strut SUPPLEMENTARY INFORMATION: A fitting assembly, per Figure 10 of the Effective Date proposal to amend part 39 of the Federal Accomplishment Instructions of the service (h) This amendment becomes effective on Aviation Regulations (14 CFR part 39) bulletin; then assemble the tripod assembly, May 28, 2002. by superseding AD 2000–01–13, per Figure 11 or Figure 12, as applicable, of Amendment 39–11511 (65 FR 2864, the Accomplishment Instructions of the Issued in Renton, Washington, on April 15, service bulletin. January 19, 2000), which is applicable 2002. to Pratt & Whitney (PW) JT9D series Note 3: Inspections and follow-on actions Kalene C. Yanamura, done before the effective date of this AD per turbofan engines, was published in the Acting Manager, Transport Airplane Boeing Alert Service Bulletin 767–57A0058, Federal Register on November 20, 2001, Directorate, Aircraft Certification Service. dated June 11, 1998, are considered (66 FR 58075). That action proposed to acceptable for compliance with the [FR Doc. 02–9613 Filed 4–22–02; 8:45 am] require revisions to the Airworthiness applicable actions specified in this AD. BILLING CODE 4910–13–U Limitations Section (ALS) of the
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manufacturer’s Instructions for (JT9D manual part numbers provided in crack growth time was given in the Continued Airworthiness (ICA) to the Table of this AD) and for air carrier choice of this number. It is strictly based include required enhanced inspection of operations revise the approved on keeping the frequency of mandatory selected critical life-limited parts at continuous airworthiness maintenance inspections as high as practicable and each piece-part exposure. program, by adding the following:’’ therefore increases the probability of crack detection while providing a brief Comments Expand Cycles-In-Service Inspection Waiver window of exemption from mandatory Interested persons have been afforded inspection if certain conditions are met. an opportunity to participate in the One commenter states that there are Therefore, the 100 cycle limit will making of this amendment. Due circumstances where the part inspection remain in paragraph (2)(ii) of the consideration has been given to the would not normally be done. An changes to the Engine Time Limits comments received. example of this would be during the Section of the AD and no exemption rotor balancing process; the inspection Add the –20 Model will be allowed for infrequent would be called out where the rotors circumstances that create a piece-part One commenter requests that the may require removal and reinstallation opportunity. JT9D–20 engine model be added to the of all blades at rearranged locations to applicability paragraph. meet balance requirements. The After careful review of the available The FAA agrees. Although the JT9D– commenter proposes that paragraph data, including the comments noted 20 engine model was included in the (2)(ii) of the proposed change to the above, the FAA has determined that air Mandatory Inspections Table of the Engine Time Limits Section be safety and the public interest require the proposed rule, it was inadvertently reworded to allow 2,500 cycles-in- adoption of the rule with the changes omitted from the applicability service since the last piece-part described previously. The FAA has paragraph of the proposed rule, and is opportunity inspection for parts not determined that these changes will now included in this final rule. damaged or related to the removal neither increase the economic burden cause. This would ensure at least one on any operator nor increase the scope Modify Part Nomenclature mid-life inspection opportunity for the of the AD. One commenter requests that in the disk and hub, and would prevent Economic Analysis Mandatory Inspections Table, under the unnecessary inspections due to rotor Part Nomenclature column, the words balance and other work requirements. The FAA estimates that 837 engines ‘‘and Hubs’’ be added to all four The FAA disagrees. The commenter installed on airplanes of US registry references to ‘‘All LPT Stage 3–6 Disks’’ suggests that the 100 cycles-in-service would be affected by this AD, that it to be consistent with manufacturer inspection waiver provided in the piece- would take approximately 1 work hour nomenclature. part opportunity definition is too low per engine to do the proposed actions. The FAA agrees. The four references and should be expanded to 2,500 cycles. The average labor rate is $60 per work in the Mandatory Inspections Table now The 100 cycle waiver is intended to hour. Based on these figures the total read ‘‘All LPT Stage 3–6 Disks and allow short-term relief from mandatory cost of the proposed AD on U.S. Hubs’’ in this final rule. inspections for a part recently inspected operators is estimated to be $954,180. in accordance with the engine manual Difference Between Existing AD and requirements. The 100 cycle waiver is Regulatory Analysis Proposal Paragraph (a) specifically aimed at disassembled parts This final rule does not have One commenter states that paragraph removed from an engine following a test federalism implications, as defined in (a) of AD 2000–01–13 differs from the cell reject or some other event that Executive Order 13132, because it proposal paragraph (a). The AD caused the parts removal shortly after would not have a substantial direct paragraph (a) directs the revision to the successful completion of mandatory Engine Time Limit Section (TLS) of the inspections. Waiver of mandatory effect on the States, on the relationship manufacturer’s Engine Manuals by inspections in this instance also between the national government and specifically listed Engine Manual part requires that the part was not damaged the States, or on the distribution of numbers, while the proposal states the related to the cause for its removal from power and responsibilities among the necessity to revise the manufacturer’s the engine. Mandatory inspections are various levels of government. Airworthiness Limitation Section (ALS) required on fully disassembled parts Accordingly, the FAA has not consulted of the Instructions for Continued regardless of time-since-new (TSN) or with state authorities prior to Airworthiness (ICA). The commenter time-since-overhaul (TSO). publication of this final rule. requests clarification. The FAA is aware that cracks can be For the reasons discussed above, I The FAA agrees with adding missed during part inspections and that certify that this action (1) is not a clarification. The wording in paragraph each time a part is processed through an ‘‘significant regulatory action’’ under (a) of AD 2000–01–13 was changed in inspection line, the probability of Executive Order 12866; (2) is not a the proposal to be consistent with other detecting a crack is increased. Typical ‘‘significant rule’’ under the DOT engine models, however, the JT9D on-condition maintenance plans make it Regulatory Policies and Procedures (44 engine manuals are not consistent with likely that a given part could be FR 11034, February 26, 1979); and (3) if the manuals of the other PW engine returned to service for thousands of promulgated, will not have a significant models. Also, the proposal included the cycles without the need for additional economic impact, positive or negative, engine manual part numbers in the focused inspection. Recognizing two on a substantial number of small entities table. Therefore, the FAA changes the opposing aspects of part removal and under the criteria of the Regulatory wording of paragraph (a) in this final inspection, which are the need for a Flexibility Act. A final evaluation has rule to read: ‘‘Within the next 30 days brief exemption period following been prepared for this action and it is after the effective date of this AD, revise conduct of mandatory inspections and contained in the Rules Docket. A copy the Engine-Time Limits-Airworthiness the benefits of increased frequency of of it may be obtained by contacting the Limitations Section of the inspection, the FAA established the 100 Rules Docket at the location provided manufacturer’s Engine Manual (EM) cycle threshold. No consideration for under the caption ADDRESSES.
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List of Subjects in 14 CFR Part 39 Amendment 39–12719, to read as assessment of the effect of the modification, follows: alteration, or repair on the unsafe condition Air transportation, Aircraft, Aviation addressed by this AD; and, if the unsafe safety, Safety. 2002–08–11 Pratt & Whitney: Amendment condition has not been eliminated, the 39–12719. Docket No. 98–ANE–47–AD. request should include specific proposed Adoption of the Amendment Supersedes AD 2000–01–13, actions to address it. Amendment 39–11511. Compliance: Compliance with this AD is Applicability: This airworthiness directive required as indicated, unless already done. Accordingly, pursuant to the (AD) is applicable to Pratt & Whitney (PW) To prevent critical life-limited rotating authority delegated to me by the JT9D–3A, –7, –7A, –7H, –7AH, –7F, –7J, –20, engine part failure, which could result in an Administrator, the Federal Aviation –20J, –59A, –70A, –7Q, –7Q3, –7R4D, uncontained engine failure and damage to Administration amends part 39 of the –7R4D1, –7R4E, –7R4E1, –7R4E4, –7R4G2, Federal Aviation Regulations (14 CFR and –7R4H1 series turbofan engines, the airplane, do the following: part 39) as follows: installed on but not limited to Boeing 747 Inspections and 767 series, McDonnell Douglas DC–10 (a) Within the next 30 days after the series, and Airbus Industrie A300 and A310 PART 39—AIRWORTHINESS effective date of this AD, revise the Engine- series airplanes. DIRECTIVES Time Limits-Airworthiness Limitations Note 1: This airworthiness directive (AD) Section of the manufacturer’s Engine Manual applies to each engine identified in the (EM) (JT9D manual part numbers provided in 1. The authority citation for part 39 preceding applicability provision, regardless continues to read as follows: the Table of this AD) and for air carrier of whether it has been modified, altered, or operations revise the approved continuous Authority: 49 U.S.C. 106(g), 40113, 44701. repaired in the area subject to the airworthiness maintenance program, by requirements of this AD. For engines that adding the following: § 39.13 [Amended] have been modified, altered, or repaired so that the performance of the requirements of Mandatory Inspections 2. Section 39.13 is amended by this AD is affected, the owner/operator must (1) Perform inspections of the following removing Amendment 39–11511 (65 FR request approval for an alternative method of parts at each piece-part opportunity in 2864, January 19, 2000) and by adding compliance in accordance with paragraph (c) accordance with the instructions provided in a new airworthiness directive, of this AD. The request should include an the applicable manual provisions:
FPI per Engine model Engine manual part number Part nomenclature manual Inspection section
7/7A/7AH/7F, 7H/7J/20/ *646028 (or the equivalent All Fan Hubs ...... 72–31–04 02 20J. customized versions 770407 and 770408). . All HPC Stage 5–15 Disks and Rear Com- 72–35–00 03 pressor Drive Turbine Shafts. All HPT Stage 1–2 Disks and Hubs ...... 72–51–00 03 All LPT Stage 3–6 Disks and Hubs ...... 72–52–00 03
59A/70A ...... 754459 ...... All Fan Hubs ...... 72–31–00 Heavy Maintenance Check. All HPC Stage 5–15 Disks and Rear Com- 72–35–00 Heavy Maintenance pressor Drive Turbine Shafts. Check. All HPT Stage 1–2 Disks and Hubs ...... 72–51–00 Heavy Maintenance Check–3. All LPT Stage 3–6 Disks and Hubs ...... 72–52–00 Heavy Maintenance Check–3.
7Q/7Q3 ...... 777210 ...... All Fan Hubs ...... 72–31–00 03 All HPC Stage 5–15 disks and Rear Com- 72–35–00 03 pressor Drive Turbine Shafts. All HPT Stage 1–2 Disks and Hubs ...... 72–51–00 03 All LPT Stage 3–6 Disks and Hubs ...... 72–52–00 03
7R4 ...... 785058, 785059, and All Fan Hubs ...... 72–31–00 03 789328. All HPC Stage 5–15 Disks and Rear Com- 72–35–00 03 pressor Drive Turbine Shafts. All HPT Stage 1–2 Disks and Hubs ...... 72–51–00 03 All LPT Stage 3–6 Disks and Hubs ...... 72–52–00 03 * P/N 770407 and 770408 are customized versions of P/N 646028 engine manual.
(2) For the purposes of these mandatory opportunity inspection, provided that the only in accordance with the Engine-Time inspections, piece-part opportunity means: part was not damaged or related to the cause Limits-Airworthiness Limitations Section of (i) The part is considered completely for its removal from the engine.’’ the JT9D Engine Manual. disassembled when done in accordance with (b) Except as provided in paragraph (c) of Alternative Method of Compliance the disassembly instructions in the this AD, and notwithstanding contrary manufacturer’s engine manual; and provisions in section 43.16 of the Federal (c) An alternative method of compliance or (ii) The part has accumulated more than Aviation Regulations (14 CFR 43.16), these adjustment of the compliance time that 100 cycles-in-service since the last piece-part mandatory inspections must be performed provides an acceptable level of safety may be
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used if approved by the Manager, Engine DEPARTMENT OF TRANSPORTATION Executive Order 12866; (2) is not a Certification Office (ECO). Operators must ‘‘significant rule’’ under DOT submit their requests through an appropriate Federal Aviation Administration Regulatory Policies and Procedures (44 FAA Principal Maintenance Inspector, who FR 11034; February 26, 1979); and (3) may add comments and then send it to the 14 CFR Part 71 does not warrant preparation of a Manager, ECO. [Docket No. FAA–2001–10743; Airspace regulatory evaluation as the anticipated Note 2: Information concerning the Docket No. 01–ASW–16] impact is so minimal. Since it has been existence of approved alternative methods of determined that this is a routine matter compliance with this airworthiness directive, Realignment of Federal Airway V–385; that will only affect air traffic if any, may be obtained from the ECO. TX procedures and air navigation, it is Special Flight Permits certified that this rule, when AGENCY: Federal Aviation promulgated, will not have a significant (d) Special flight permits may be issued in Administration (FAA), DOT. accordance with §§ 21.197 and 21.199 of the economic impact on a substantial ACTION: Final Rule. Federal Aviation Regulations (14 CFR 21.197 number of small entities under the criteria of the Regulatory Flexibility Act. and 21.199) to operate the aircraft to a SUMMARY: This action realigns Federal location where the requirements of this AD Airway 385 (V–385) between Lubbock, Federal airways are published in can be done. TX, and Abilene, TX, so that aircraft paragraph 6010(a) of FAA Order 7400.9J Continuous Airworthiness Maintenance will be able to navigate on the airway dated August 31, 2001, and effective Program without encroaching upon the newly September 16, 2001, which is incorporated by reference in 14 CFR (e) FAA-certificated air carriers that have designated Lancer Military Operations an approved continuous airworthiness Area (MOA). 71.1. The Federal airway listed in this document will be published maintenance program in accordance with the EFFECTIVE DATE: 0901 UTC, June 13, subsequently in the Order. record keeping requirement of § 121.369(c) of 2002. the Federal Aviation Regulations (14 CFR Environmental Review 121.369(c)) of this chapter must maintain FOR FURTHER INFORMATION CONTACT: records of the mandatory inspections that Steve Rohring, Airspace and Rules The FAA has determined that this result from revising the Time Limits section Division, ATA–400, Office of Air Traffic action qualifies for categorical exclusion of the Instructions for Continuous Airspace Management, Federal Aviation under the National Environmental Airworthiness (ICA) and the air carrier’s Administration, 800 Independence Policy Act in accordance with FAA continuous airworthiness program. Avenue, SW., Washington, DC 20591; Order 1050.1D, Policies and Procedures Alternatively, certificated air carriers may telephone: (202) 267–8783. for Considering Environmental Impacts. establish an approved system of record SUPPLEMENTARY INFORMATION: This airspace action is not expected to retention that provides a method for preservation and retrieval of the maintenance Background cause any potentially significant environmental impacts, and no records that include the inspections resulting On December 7, 2001, the FAA from this AD, and include the policy and extraordinary circumstances exist that proposed to amend 14 CFR part 71 to procedures for implementing this alternate warrant preparation of an method in the air carrier’s maintenance realign V–385 by moving a turning point environmental assessment. (BOOMR intersection) approximately manual required by § 121.369(c) of the List of Subjects in 14 CFR Part 71 Federal Aviation Regulations (14 CFR seven miles to the east of its present 121.369(c)); however, the alternate system location (66 FR 63517). With this Airspace, Incorporation by reference, must be accepted by the appropriate PMI and realignment, aircraft can navigate Navigation (air). require the maintenance records be between Lubbock, TX, and Abilene, TX, maintained either indefinitely or until the without encroaching upon the Lancer Adoption of the Amendment work is repeated. Records of the piece-part MOA. Interested parties were invited to inspections are not required under participate in this rulemaking In consideration of the foregoing, the § 121.380(a)(2)(vi) of the Federal Aviation proceeding by submitting written Federal Aviation Administration Regulations (14 CFR 121.380(a)(2)(vi)). All comments on this proposal to the FAA. amends 14 CFR Part 71 as follows: other operators must maintain the records of No comments were received in response mandatory inspections required by the to the proposal. PART 71—DESIGNATION OF CLASS A, applicable regulations governing their CLASS B, CLASS C, CLASS D, AND operations. The Rule CLASS E, AIRSPACE AREAS; Note 3: The requirements of this AD have This amendment to 14 CFR part 71 AIRWAYS; ROUTES; AND REPORTING been met when the engine manual changes realigns V–385 between Lubbock, TX, POINTS are made and air carriers have modified their and Abilene, TX, by relocating the continuous airworthiness maintenance plans BOOMR intersection and moving the 1. The authority citation for part 71 to reflect the requirements in the Engine airway approximately seven miles to the continues to read as follows: Manuals. east of its present location. This Authority: 49 U.S.C. 106(g), 40103, 40113, Effective Date realignment allows aircraft to navigate 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1963 Comp., p. 389. (f) This amendment becomes effective on on V–385 between Lubbock, TX, and May 28, 2002. Abilene, TX, without encroaching upon § 71.1 [Amended] the Lancer MOA. Issued in Burlington, Massachusetts, on The FAA has determined that this 2. The incorporation by reference in April 12, 2002. regulation only involves an established 14 CFR 71.1 of the Federal Aviation Thomas A. Boudreau, body of technical regulations for which Administration Order 7400.9J, Airspace Acting Manager, Engine and Propeller frequent and routine amendments are Designations and Reporting Points, Directorate, Aircraft Certification Service. necessary to keep them operationally dated August 31, 2001, and effective [FR Doc. 02–9844 Filed 4–22–02; 8:45 am] current. It, therefore—(1) is not a September 16, 2001, is amended as BILLING CODE 4910–13–U ‘‘significant regulatory action’’ under follows:
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Paragraph 6010(a)—Domestic VOR Federal For Purchase— as contained in the transmittal. Some Airways Individual SIAP copies may be SIAP amendments may have been * * * * * obtained from: previously issued by the FAA in a V–385 [Revised] 1. FAA Public Inquiry Center (APA– National Flight Data Center (NFDC) ° 200), FAA Headquarters Building, 800 Notice to Airmen (NOTAM) as an From Lubbock, TX, INT Lubbock 105 and Independence Avenue, SW., Abilene, TX, 329° radials; Abilene. emergency action of immediate flight Washington, DC 20591; or safety relating directly to published * * * * * 2. The FAA Regional Office of the aeronautical charts. The circumstances Issued in Washington, DC, on April 17, region in which the affected airport is which created the need for some SIAP 2002. located. amendments may require making them Reginald C. Matthews, By Subscription—Copies of all SIAPs, effective in less than 30 days. For the Manager, Airspace and Rules Division. mailed once every 2 weeks, are for sale remaining SIAPs, an effective date at [FR Doc. 02–9941 Filed 4–22–02; 8:45 am] by the Superintendent of Documents, least 30 days after publication is U.S. Government Printing Office, BILLING CODE 4910–13–P provided. Washington, DC 20402. Further, the SIAPs contained in this FOR FURTHER INFORMATION CONTACT: amendment are based on the criteria Donald P. Pate, Flight Procedure DEPARTMENT OF TRANSPORTATION contained in the U.S. Standard for Standards Branch (AMCAFS–420), Terminal Instrument Procedures Federal Aviation Administration Flight Technologies and Programs Division, Flight Standards Service, (TERPS). In developing these SIAPs, the TERPS criteria were applied to the 14 CFR Part 97 Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 conditions existing or anticipated at the [Docket No. 30304; Amdt. No. 3001] South MacArthur Blvd. Oklahoma City, affected airports. Because of the close OK 73169 (Mail Address: PO Box 25082 and immediate relationship between Standard Instrument Approach these SIAPs and safety in air commerce, Procedures; Miscellaneous Oklahoma City, OK 73125) telephone: (405) 954–4164. I find that notice and public procedure Amendments before adopting these SIAPs are SUPPLEMENTARY INFORMATION: This impracticable and contrary to the public AGENCY: Federal Aviation amendment to part 97 of the Federal interest and, where applicable, that Administration (FAA), DOT. Aviation Regulations (14 CFR part 97) good cause exists for making some ACTION: Final rule. establishes, amends, suspends, or SIAPs effective in less than 30 days. revokes Standard Instrument Approach SUMMARY: This amendment establishes, Procedures (SIAPs). The complete Conclusion amends, suspends, or revokes Standard regulatory description of each SIAP is Instrument Approach Procedures contained in official FAA form The FAA has determined that this (SIAPs) for operations at certain documents which are incorporated by regulation only involves an established airports. These regulatory actions are reference in this amendment under 5 body of technical regulations for which needed because of the adoption of new U.S.C. 552(a), 1 CFR part 51, and § 97.20 frequent and routine amendments are or revised criteria, or because of changes of the Federal Aviation Regulations necessary to keep them operationally occurring in the National Airspace (FAR). The applicable FAA Forms are current. It, therefore—(1) is not a System, such as the commissioning of identified as FAA Forms 8260–3, 8260– ‘‘significant regulatory action’’ under new navigational facilities, addition of 4, and 8260–5. Materials incorporated Executive Order 12866; (2) is not a new obstacles, or changes in air traffic by reference are available for ‘‘significant rule’’ under DOT requirements. These changes are examination or purchase as stated Regulatory Policies and Procedures (44 designed to provide safe and efficient above. FR 11034; February 26, 1979); and (3) use of the navigable airspace and to The large number of SIAPs, their does not warrant preparation of a promote safe flight operations under complex nature, and the need for a regulatory evaluation as the anticipated instrument flight rules at the affected special format make their verbatim impact is so minimal. For the same airports. publication in the Federal Register reason, the FAA certifies that this expensive and impractical. Further, amendment will not have a significant DATES: An effective date for each SIAP economic impact on a substantial is specified in the amendatory airmen do not use the regulatory text of number of small entities under the provisions. the SIAPs, but refer to their graphic criteria of the Regulatory Flexibility Act. Incorporation by reference—approved depiction on charts printed by publishers or aeronautical materials. by the Director of the Federal Register List of Subjects in 14 CFR Part 97 on December 31, 1980, and reapproved Thus, the advantages of incorporation as of January 1, 1982. by reference are realized and Air traffic control, Airpots, Navigation publication of the complete description (air). ADDRESSES: Availability of matters of each SIAP contained in FAA form Issued in Washington, DC on April 12, incorporated by reference in the documents is unnecessary. The amendment is as follows: 2002. provisions of this amendment state the James J. Ballough, For Examination— affected CFR (and FAR) sections, with Director, Flight Standards Service. 1. FAA Rules Docket, FAA the types and effective dates of the Headquarters Building, 800 SIAPs. This amendment also identifies Adoption of the Amendment Independence Avenue, SW., the airport, its location, the procedure Washington, DC 20591; identification and the amendment Accordingly, pursuant to the 2. The FAA Regional Office of the number. authority delegated to me, part 97 of the region in which the affected airport is Federal Aviation Regulations (14 CFR located; or The Rule part 97) is amended by establishing, 3. The Flight Inspection Area Office This amendment to part 97 is effective amending, suspending, or revoking which originated the SIAP. upon publication of each separate SIAP Standard Instrument Approach
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Procedures, effective at 0901 UTC on Fort Leavenworth, KS, Sherman AAF, RNAV Grant, NE, Grant Muni, RNAV (GPS) RWY the dates specified, as follows: (GPS) RWY 33, Orig 33, Orig Fort Leavenworth, KS, Sherman AAF, NDB Grant, NE, Grant Muni, NDB RWY 15, Amdt PART 97—STANDARD INSTRUMENT RWY 33, Amdt 4 3 APPROACH PROCEDURES Fort Leavenworth, KS, Sherman AAF, GPS Grant, NE, Grant Muni, NDB RWY 33, Amdt RWY 15, Orig 3 1. The authority citation for part 97 is Fort Leavenworth, KS, Sherman AAF, GPS Grant, NE, Grant Muni, VOR/DME RWY 15, revised to read as follows: RWY 33, Orig Orig Presque Isle, ME, Northern Maine Regional Akron, NY, Akron, VOR OR GPS RWY 7, Authority: 49 U.S.C. 106(g), 40103, 40113, Arpt At Presque Isle, VOR RWY 19, Amdt Amdt 3, CANCELLED 40120, 44701; and 14 CFR 11.49(b)(2). 10 Akron, NY, Akron, VOR/DME OR GPS RWY Presque Isle, ME, Northern Maine Regional 25, Amdt 4, CANCELLED §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, Arpt At Presque Isle, RNAV (GPS) Y RWY Akron, NY, Akron, RNAV (GPS) RWY 7, Orig and 97.35 [Amended] 1, Orig Akron, NY, Akron, RNAV (GPS) RWY 25, 1. Part 97 is amended to read as Presque Isle, ME, Northern Maine Regional Orig follows: Arpt At Presque Isle, RNAV (GPS) Z RWY South Bethlehem, NY, South Albany, RNAV 1, Orig (GPS) RWY 1, Orig By amending § 97.23 VOR, VOR/DME, Presque Isle, ME, Northern Maine Regional South Bethlehem, NY, South Albany, RNAV VOR or TACAN, and VOR/DME or TACAN; Arpt At Presque Isle, GPS RWY 1, Orig, (GPS) RWY 19, Orig § 97.25 LOC, LOC/DME, LDA, LDA/DME, CANCELLED Canandaigua, NY, Canandaigua, RNAV (GPS) SDF, SDF/DME; § 97.27 NDB, NDB/DME; Greenville, MI, Greenville Muni, VOR/DME– RWY 13, Orig § 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/ A, Amdt 2 Canandaigua, NY, Canandaigua, GPS RWY DME, MLS/RNAV; § 97.31 RADAR SIAPs; Greenville, MI, Greenville Muni, RNAV 13, Orig, CANCELLED § 97.33 RNAV SIAPs; and § 97.35 COPTER (GPS) RWY 10, Orig Penn Yan, NY, Penn Yan, RNAV (GPS) RWY SIAPs, identified as follows: Greenville, MI, Greenville Muni, RNAV 1, Orig * * * Effective June 13, 2002 (GPS) RWY 28, Orig Penn Yan, NY, Penn Yan, RNAV (GPS) RWY Greenville, MI, Greenville Muni, GPS RWY 19, Orig Clinton, AR, Holley Mountain Airpark, 28, Orig-A, CANCELLED Penn Yan, NY, Penn Yan, GPS RWY 1, Orig, RNAV (GPS) RWY 5, Orig Dexter, MO, Dexter Muni, RNAV (GPS) RWY CANCELLED Clinton, AR, Holley Mountain Airpark, 18, Orig Penn Yan, NY, Penn Yan, GPS RWY 19, Orig, RNAV (GPS) RWY 23, Orig Dexter, MO, Dexter Muni, RNAV (GPS) RWY CANCELLED Hope, AR, Hope Muni, VOR/DME RWY 4, 36, Orig Chillicothe, OH, Ross County, RNAV (GPS) Amdt 8 Dexter, MO, Dexter Muni, NDB RWY 36, RWY 23, Orig Hope, AR, Hope Muni, RNAV (GPS) RWY 4, Amdt 1 Chillicothe, OH, Ross County, GPS RWY 23, Orig Dexter, MO, Dexter Muni, VOR/DME RWY Orig, CANCELLED Hope, AR, Hope Muni, RNAV (GPS) RWY 16, 36, Amdt 5 Clearfield, PA, Clearfield-Lawrence, VOR Orig Malden, MO, Malden Muni, RNAV (GPS) RWY 30, Amdt 6 Hope, AR, Hope Muni, GPS RWY 4, Orig, RWY 18, Orig Clearfield, PA, Clearfield-Lawrence, RNAV CANCELLED Malden, MO, Malden Muni, RNAV (GPS) (GPS) RWY 30, Orig Hope, AR, Hope Muni, GPS RWY 16, Orig, RWY 36, Orig Clearfield, PA, Clearfield-Lawrence, GPS CANCELLED Malden, MO, Malden Muni, RNAV (GPS) RWY 30, Orig, CANCELLED Fresno, CA, Fresno Yosemite International, RWY 31, Orig Sterling, PA, Spring Hill, VOR–B, Orig VOR/DME OR TACAN RWY 11L, Orig Malden, MO, Malden Muni, VOR/DME RWY Barnwell, SC, Barnwell County, RNAV (GPS) Fresno, CA, Fresno Yosemite International, 13, Orig RWY 16, Orig VOR OR TACAN RWY 11L, Amdt 11A, Malden, MO, Malden Muni, VOR RWY 31, Barnwell, SC, Barnwell County, NDB–A, CANCELLED Amdt 8 Amdt 1 Los Angeles, CA, Whiteman, VOR–A, Amdt Malden, MO, Malden Muni, VOR/DME Barnwell, SC, Barnwell County, NDB RWY 4, 1A RNAV OR GPS RWY 13, Orig-A, Amdt 2 Los Angeles, CA, Whiteman, RNAV (GPS)–C, CANCELLED Clemson, SC, Oconee County Regional, GPS Orig Monroe City, MO, Monroe City Regional, RWY 25, Orig, CANCELLED Los Angeles, CA, Whiteman, GPS–B, Orig, RNAV (GPS) RWY 9, Orig Clemson, SC, Oconee County Regional, NDB CANCELLED Monroe City, MO, Monroe City Regional, OR GPS–A, Amdt 5B, CANCELLED Palm Springs, CA, Bermuda Dunes, VOR–A, RNAV (GPS) RWY 27, Orig Clemson, SC, Oconee County Regional, Orig Monroe City, MO, Monroe City Regional, RNAV (GPS) RWY 7, Orig Palm Springs, CA, Bermuda Dunes, VOR OR VOR/DME–A, Amdt 2 Clemson, SC, Oconee County Regional, GPS RWY 28, Orig, CANCELLED Monroe City, MO, Monroe City Regional, RNAV (GPS) RWY 25, Orig Palm Springs, CA, Bermuda Dunes, RNAV VOR/DME RNAV RWY 27, Amdt 1 Clemson, SC, Oconee County Regional, NDB (GPS) RWY 28, Orig Monroe City, MO, Monroe City Regional, RWY 25, Orig West Palm Beach, FL, Palm Beach Intl, VOR GPS RWY 27, Orig Clemson, SC, Oconee County Regional, GPS OR GPS RWY 9L, Amdt 2 Malta, MT, Malta, RNAV (GPS) RWY 8, Orig RWY 7, Orig–A, CANCELLED West Palm Beach, FL, Palm Beach Intl, VOR Malta, MT, Malta, RNAV (GPS) RWY 26, Orig Eagle Butte, SD, Cheyenne Eagle Butte, OR GPS RWY 13, Amdt 3 Scobey, MT, Scobey, RNAV (GPS) RWY 12, RNAV (GPS) RWY 31, Orig West Palm Beach, FL, Palm Beach Intl, VOR Orig Eagle Butte, SD, Cheyenne Eagle Butte, GPS OR GPS RWY 27R, Amdt 2 Rochester, MN, Rochester International, RWY 31, Amdt 1, CANCELLED West Palm Beach, FL, Palm Beach Intl, VOR RNAV (GPS) RWY 2, Orig Huron, SD, Huron Regional, LOC/DME BC OR GPS RWY 31, Amdt 4 Rochester, MN, Rochester International, VOR RWY 30, Amdt 12 West Palm Beach, FL, Palm Beach Intl, NDB RWY 2, Amdt 17 Huron, SD, Huron Regional, RNAV (GPS) RWY 9L, Amdt 20 St. Paul, MN, Lake Elmo Airport, NDB RWY RWY 30, Orig West Palm Beach, FL, Palm Beach Intl, ILS 4, Amdt 4 Pierre, SD, Pierre Regional, VOR or TACAN RWY 9L, Amdt 23 St. Paul, MN, Lake Elmo Airport, RNAV RWY 25, Orig West Palm Beach, FL, Palm Beach Intl, ILS (GPS) RWY 32, Orig Pierre, SD, Pierre Regional, VOR/DME or RWY 27R, Amdt 1 St. Paul, MN, Lake Elmo Airport, GPS RWY TACAN or GPS RWY 25, Amdt 16A Albia, IA, Albia Muni, RNAV (GPS) RWY 31, 32, Orig–A, CANCELLED CANCELLED Orig Walhalla, ND, Walhalla, RNAV (GPS) RWY Pierre, SD, Pierre Regional, VOR/DME or Albia, IA, Albia Muni, VOR/DME–A, Amdt 4 33, Orig TACAN RWY 7, Amdt 4C Fort Leavenworth, KS, Sherman AAF, RNAV Grant, NE, Grant Muni, RNAV (GPS) RWY Pierre, SD, Pierre Regional, RNAV (GPS) (GPS) RWY 15, Orig 15, Orig RWY 7, Orig
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Pierre, SD, Pierre Regional, RNAV (GPS) on December 31, 1980, and reapproved publishers of aeronautical materials. RWY 25, Orig as of January 1, 1982. Thus, the advantages of incorporation Dickson, TN, Dickson Muni, RNAV (GPS) ADDRESSES: by reference are realized and RWY 17, Orig Availability of matter incorporated by reference in the publication of the complete description Manassas, VA, Manassas Regional/Harry P. of each SIAP contained in FAA form Davis Field, NDB OR GPS–A, Amdt 8C, amendment is as follows: documents is unnecessary. The CANCELLED For Examination— Norfolk, VA, Norfolk Intl, NDB/DME RWY provisions of this amendment state the 23, Orig 1. FAA Rules Docket, FAA affected CFR (and FAR) sections, with Norfolk, VA, Norfolk Intl, NDB/DME OR GPS Headquarters Building, 800 the types and effective date of the RWY 23, Orig–B, CANCELLED Independence Avenue, SW., SIAPs. This amendment also identifies Norfolk, VA, Norfolk Intl, RNAV (GPS) RWY Washington, DC 20591; the airport, its location, the procedure 5, Orig 2. The FAA Regional Office of the identification and the amendment Friendship (Adams), WI, Adams County region in which affected airport is number. Legion Field, RNAV (GPS) RWY 33, Orig Friendship (Adams), WI, Adams County located; or The Rule Legion Field, GPS RWY 33, Orig–A 3. The Flight Inspection Area Office which originated the SIAP. This amendment to part 97 of the CANCELLED Federal Aviation Regulations (14 CFR Parkersburg, WV, Wood County Airport-Gill For Purchase— Robb Wilson Field, VOR RWY 21, Amdt 16 part 97) establishes, amends, suspends, Parkersburg, WV, Wood County Airport-Gill Individual SIAP copies may be or revokes SIAPs. For safety and Robb Wilson Field, RNAV (GPS) Y RWY 3, obtained from: timeliness of change considerations, this Orig 1. FAA Public Inquiry Center (APA– amendment incorporates only specific Parkersburg, WV, Wood County Airport-Gill 200), FAA Headquarters Building, 800 changes contained in the content of the Robb Wilson Field, RNAV (GPS) Z RWY 3, Independence Avenue, SW., following FDC/P NOTAMs for each Orig Washington, DC 20591; or SIAP. The SIAP information in some Parkersburg, WV, Wood County Airport-Gill previously designed FDC/Temporary Robb Wilson Field, RNAV (GPS) Y RWY 2. The FAA Regional Office of the region in which the affected airport is (FDC/T) NOTAMs is of such duration as 21, Orig to be permanent. With conversion to Parkersburg, WV, Wood County Airport-Gill located. Robb Wilson Field, RNAV (GPS) Z RWY By Subscription Copies of all SIAPs, FDC/P NOTAMs, the respective FDC/T 21, Orig mailed once every 2 weeks, are for sale NOTAMs have been canceled. [FR Doc. 02–9849 Filed 4–22–02; 8:45 am] by the Superintendent of Documents, The FDC/P NOTAMs for the SIAPs contained in this amendment are based BILLING CODE 4910–13–M US Government Printing Office, Washington, DC 20402. on the criteria contained in the U.S. Standard for Terminal Instrument FOR FURTHER INFORMATION CONTACT: Procedures (TERPS). In developing DEPARTMENT OF TRANSPORTATION Donald P. Pate, Flight Procedure these chart changes to SIAPs by FDC/P Standards Branch (AMCAFS–420), NOTAMs, the TERPS criteria were Federal Aviation Administration Flight Technologies and Programs applied to only these specific conditions Division, Flight Standards Service, existing at the affected airports. All 14 CFR Part 97 Federal Aviation Administration, Mike SIAP amendments in this rule have Monroney Aeronautical Center, 6500 been previously issued by the FAA in a [Docket No. 30305; Amdt. No. 3002] South MacArthur Blvd. Oklahoma City, National Flight Data Center (FDC) OK 73169 (Mail Address: P.O. Box Standard Instrument Approach Notice to Airmen (NOTAM) as an 25082, Oklahoma City, OK. 73125) Procedures; Miscellaneous emergency action of immediate flight Amendments SUPPLEMENTARY INFORMATION: This safety relating directly to published amendment to part 97 of the Federal aeronautical charts. The circumstances AGENCY: Federal Aviation Aviation Regulations (14 CFR part 97) which created the need for all these Administration (FAA), DOT. establishes, amends, suspends, or SIAP amendments requires making ACTION: Final rule. revokes Standard Instrument Approach them effective less than 30 days. Procedures (SIAPs). The complete Further, the SIAPs contained in this SUMMARY: This amendment establishes, regulatory description on each SIAP is amendment are based on the criteria amends, suspends, or revokes Standard contained in the appropriate FAA Form contained in the TERPS. Because of the Instrument Approach Procedures 8260 and the National Flight Data close and immediate relationship (SIAPs) for operations at certain Center (FDC)/Permanent (P) Notices to between these SIAPs and safety in air airports. These regulatory actions are Airmen (NOTAM) which are commerce, I find that notice and public needed because of changes occurring in incorporated by reference in the procedure before adopting these SIAPs the National Airspace system, such as amendment under 5 U.S.C. 552(a), 1 are impracticable and contrary to the the commissioning of new navigational CFR part 51, and § 97.20 of the Federal public interest and, where applicable, facilities, additional of new obstacles, or Aviation’s Regulations (FAR). Materials that good cause exists for making these changes in air traffic requirements. incorporated by reference are available SIAPs effective in less than 30 days. These changes are designed to provide for examination or purchase as stated safe and efficient use of the navigable above. Conclusion airspace and to promote safe flight The large number of SIAPs, their The FAA has determined that this operations under instrument flight rules complex nature, and the need for a regulation only involves an established at the effected airports. special format make their verbatim body of technical regulations for which DATES: An effective date for each SIAP publication in the Federal Register frequent and routine amendments are is specified in the amendatory expensive and impractical. Further, necessary to keep them operationally provisions. airmen do not use the regulatory text of current. It, therefore—(1) is not a Incorporated by reference-approved the SIAPs, but refer to their graphic ‘‘significant regulatory action’’ by the Director of the Federal Register depiction of charts printed by Executive Order 12866; (2) is not a
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‘‘significant rule’’ under DOT Issued in Washington, DC on April 12, Authority: 49 U.S.C. 40103, 40113, 40120, Regulatory Policies and Procedures (44 2002. 44701; 49 U.S.C. 106(g); and 14 CFR FR 11034; February 26, 1979); and (3) James J. Ballough, 11.49(b)(2). Director, Flight Standards Service. does not warrant preparation of a §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, regulatory evaluation as the anticipated Adoption of the Amendment 97.35 [Amended] impact is so minimal. For the same Accordingly, pursuant to the reason, the FAA certifies that this 2. Part 97 is amended to read as authority delegated to me, part 97 of the follows: amendment will not have a significant Federal Aviation Regulations (14 CFR economic impact on a substantial part 97) is amended by establishing, By amending: § 97.23 VOR, VOR/DME, number of small entities under the amending, suspending, or revoking VOR or TACAN, and VOR/DME or TACAN; criteria of the Regulatory Flexibility Act. Standard Instrument Approach § 97.25 LOC, LOC/DME, LDA, LDA/DME, List of Subjects in 14 CFR Part 97 Procedures, effective at 0901 UTC on SDF, SMF/DME; § 97.27 NDB, NDB/DME; the dates specified, as follows: § 97.29 ILS, ILS/DME, ISMLS, MLS/DME, Air traffic control, Airports, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 Navigation (air). PART 97—STANDARDS INSTRUMENT RNAV SIAPs; and § 97.39 COPTER SIAPs, APPROACH PROCEDURES Identified as follows: ...... EFFECTIVE UPON PUBLICATION 1. The authority citation for part 97 is revised to read as follows:
FDC Date State City Airport FDC No. Subject
03/05/02 ...... NE .... AINSWORTH ...... AINSWORTH MUNI ...... 2/1923 ...... VOR OR GPS RWY 17, AMDT 2A. 03/07/02 ...... TX ..... CORPUS CHRISTI ...... CORPUS CHRISTI INTL .. 2/1982 ...... LOC RWY 31, AMDT 6. 03/07/02 ...... TX ..... CORPUS CHRISTI ...... CORPUS CHRISTI INTL .. 2/1983 ...... ILS RWY 13, AMDT 26. 03/07/02 ...... TX ..... CORPUS CHRISTI ...... CORPUS CHRISTI INTL .. 2/1984 ...... ILS RWY 35, AMDT 11. 03/07/02 ...... TX ..... CORPUS CHRISTI ...... CORPUS CHRISTI INTL .. 2/1985 ...... GPS RWY 35, ORIG. 03/11/02 ...... TX ..... DENTON ...... DENTON MUNI ...... 2/2085 ...... ILS RWY 17, AMDT 6A. 03/11/02 ...... KS ..... OLATHE ...... JOHNSON COUNTY EX- 2/2088 ...... VOR RWY 36, AMDT 11. ECUTIVE. 03/11/02 ...... KS ..... OLATHE ...... JOHNSON COUNTY EX- 2/2111 ...... NDB RWY 18, AMDT 4. ECUTIVE. 03/11/02 ...... KS ..... OLATHE ...... JOHNSON COUNTY EX- 2/2112 ...... LOC RWY 18, AMDT 7. ECUTIVE. 03/11/02 ...... KS ..... OLATHE ...... JOHNSON COUNTY EX- 2/2113 ...... RNAV (GPS) RWY 18, ECUTIVE. ORIG. 03/12/02 ...... TX ..... BROWNSVILLE ...... SOUTH PADRE ISLAND 2/2146 ...... VOR/DME RNAV OR GPS INTL. RWY 17, AMDT 3. 03/13/02 ...... TN ..... FAYETTEVILLE ...... FAYETTEVILLE MUNI ..... 2/2178 ...... VOR/DME RWY 2, ORIG- B. 03/14/02 ...... NE .... FAIRMONT ...... FAIRMONT STATE AIR- 2/2224 ...... GPS RWY 35, ORIG. FIELD. 03/18/02 ...... LA ..... LAFAYETTE ...... LAFAYETTE REGIONAL 2/2289 ...... ILS RWY 22L, AMDT 4B. 03/18/02 ...... LA ..... LAFAYETTE ...... LAFAYETTE REGIONAL 2/2290 ...... NDB OR GPS RWY 22L, AMDT 4A. 03/21/02 ...... IA ...... PELLA ...... PELLA MUNI ...... 2/2347 ...... NDB RWY 34, AMDT 7A. 03/27/02 ...... FL ..... SARASOTA (BRA- SARASOTA/BRADENTON 2/2510 ...... VOR OR GPS RWY 22, DENTON). INTL. AMDT 10B. 03/27/02 ...... FL ..... SARASOTA (BRA- SARASOTA/BRADENTON 2/2511 ...... VOR OR GPS RWY 14, DENTON). INTL. AMDT 16A. 03/27/02 ...... FL ..... SARASOTA (BRA- SARASOTA/BRADENTON 2/2512 ...... VOR OR GPS RWY 32, DENTON). INTL. AMDT 8B. 03/27/02 ...... FL ..... SARASOTA (BRA- SARASOTA/BRADENTON 2/2513 ...... NDB RWY 32, AMDT 6B. DENTON). INTL. 03/27/02 ...... TN ..... CROSSVILLE ...... CROSSVILLE MEMO- 2/2520 ...... VOR/DME OR GPS-A, RIAL-WHITSON FIELD. AMDT 8. 03/27/02 ...... TN ..... CROSSVILLE ...... CROSSVILLE MEMO- 2/2521 ...... ILS RWY 26, AMDT 11C. RIAL-WHITSON FIELD. 03/27/02 ...... MN .... DODGE CENTER ...... DODGE CENTER ...... 2/2528 ...... VOR OR GPS-A, AMDT 3. 03/27/02 ...... MN .... DODGE CENTER ...... DODGE CENTER ...... 2/2529 ...... GPS RWY 34, AMDT 2. 03/28/02 ...... KY ..... LONDON ...... LONDON-CORBIN ARPT- 2/2550 ...... VOR/DME RNAV RWY 5, MAGEE FLD. AMDT 3B. 03/28/02 ...... MO .... OZARK ...... AIR PARK SOUTH ...... 2/2567 ...... VOR OR GPS RWY 17, AMDT 4. 04/01/02 ...... NE .... COLUMBUS ...... COLUMBUS MUNI ...... 2/2654 ...... GPS RWY 14, ORIG-A. 04/03/02 ...... MA .... BOSTON ...... GENERAL EDWARD 2/2699 ...... GPS RWY 27, ORIG. LAWRENCE LOGAN INTL. 04/03/02 ...... MA .... BOSTON ...... GENERAL EDWARD 2/2700 ...... VOR/DME RWY 27, LAWRENCE LOGAN AMDT 2. INTL. 04/03/02 ...... GA .... DONALSONVILLE ...... DONALSONVILLE MUNI 2/2713 ...... VOR/DME OR GPS-A, AMDT 2A.
VerDate 11
FDC Date State City Airport FDC No. Subject
04/04/02 ...... NY .... ALBANY ...... ALBANY INTL ...... 2/2737 ...... COPTER ILS RWY 1, ORIG. 04/04/02 ...... NY .... ALBANY ...... ALBANY INTL ...... 2/2738 ...... ILS RWY 1, AMDT 9. 04/04/02 ...... NC .... ERWIN ...... HARNETT COUNTY ...... 2/2740 ...... VOR/DME RWY 5, AMDT 2. 04/04/02 ...... NY .... ROCHESTER ...... GREATER ROCHESTER 2/2746 ...... ILS RWY 4 (CAT I, II), INTL. AMDT 17. 04/04/02 ...... NY .... ROCHESTER ...... GREATER ROCHESTER 2/2747 ...... ILS RWY 22, AMDT 5. INTL. 04/04/02 ...... NY .... ROCHESTER ...... GREATER ROCHESTER 2/2748 ...... ILS RWY 28, AMDT 28. INTL. 04/04/02 ...... NY .... ROCHESTER ...... GREATER ROCHESTER 2/2749 ...... VOR/DME OR GPS RWY INTL. 4, AMDT 1A. 04/04/02 ...... NY .... ROCHESTER ...... GREATER ROCHESTER 2/2750 ...... VOR RWY 4, AMDT 9. INTL. 04/04/02 ...... NY .... ROCHESTER ...... GREATER ROCHESTER 2/2751 ...... NDB OR GPS RWY 28, INTL. AMDT 20B. 04/04/02 ...... NY .... ROCHESTER ...... GREATER ROCHESTER 2/2752 ...... RNAV (GPS) RWY 22, INTL. ORIG-A. 04/04/02 ...... NY .... ROCHESTER ...... GREATER ROCHESTER 2/2753 ...... GPS RWY 10, ORIG. INTL. 04/05/02 ...... HI ...... LIHUE ...... LIHUE ...... 2/2772 ...... VOR/DME OR TACAN OR GPS RWY 21, AMDT 3A. 04/05/02 ...... LA ..... LAKE CHARLES ...... LAKE CHARLES RE- 2/2786 ...... VOR-A, AMDT 13. GIONAL. 04/05/02 ...... LA ..... SULPHUR ...... SOUTHLAND FIELD ...... 2/2787 ...... VOR/DME-A, AMDT 1. 04/05/02 ...... LA ..... SULPHUR ...... SOUTHLAND FIELD ...... 2/2788 ...... NDB RWY 15, AMDT 1B. 04/05/02 ...... LA ..... SULPHUR ...... SOUTHLAND FIELD ...... 2/2789 ...... LOC RWY 15, AMDT 1B. 04/08/02 ...... FL ..... BROOKSVILLE ...... HERNANDO COUNTY ..... 2/2825 ...... ILS RWY 9, AMDT 2. 04/08/02 ...... TX ..... MIDLAND ...... MIDLAND INTL ...... 2/2839 ...... VOR/DME RNAV RWY 16R, AMDT 3. 04/10/02 ...... OK .... OKLAHOMA CITY ...... WILL ROGERS WORLD .. 2/2910 ...... NDB RWY 35R, AMDT 5B. 04/10/02 ...... OK .... OKLAHOMA CITY ...... WILL ROGERS WORLD .. 2/2917 ...... ILS RWY 35 (CAT I, II), AMDT 8C. 04/10/02 ...... OK .... OKLAHOMA CITY ...... WILL ROGERS WORLD .. 2/2919 ...... RNAV (GPS) RWY 35R, ORIG. 04/11/02 ...... OK .... OKLAHOMA CITY ...... WILL ROGERS WORLD .. 2/2921 ...... LOC BC RWY 35L, AMDT 10C.
[FR Doc. 02–9850 Filed 4–22–02; 8:45 am] security’’ in the rules under the Commission’s Internet website (http:// BILLING CODE 4910–13–M Securities Act and the Exchange Act to www.sec.gov).1 conform them to the statutory FOR FURTHER INFORMATION CONTACT: definitions with respect to security N. Sean Harrison, Special Counsel, Office SECURITIES AND EXCHANGE futures. of Rulemaking, Division of Corporation COMMISSION DATES: Effective Date: These rules are Finance at (202) 942–2910, or in effective June 7, 2002. 17 CFR Parts 230 and 240 writing, at the Securities and Exchange Comment Date: Comments on the Commission, 450 Fifth Street NW, [Release Nos. 33–8091; 34–45769; File No. amended rules must be received on or Washington, DC 20549–0312. S7–11–02] before May 23, 2002. SUPPLEMENTARY INFORMATION: RIN 3235–AI40 ADDRESSES: Please send three copies of We are 2 your comments to Jonathan G. Katz, adopting amendments to Rule 405 Amendment to Definition of ‘‘Equity Secretary, Securities and Exchange under the Securities Act of 1933 3 and Security’’ Commission, 450 Fifth Street, NW, Rule 3a11–1 4 under the Securities Washington, DC 20549–0609. Exchange Act of 1934.5 AGENCY: Securities and Exchange Commission. Alternatively, you may submit your I. Discussion comments electronically to the ACTION: Final rule with request for following e-mail address: rule- One of the purposes of the comments. [email protected]. All comment letters Commodity Futures Modernization Act SUMMARY: The Commodity Futures should refer to File No. S7–11–02; Modernization Act of 2000 amended the please include this file number in the 1 We do not edit personal identifying information, definition of ‘‘security’’ in the Securities subject line if you use e-mail. We will such as names or e-mail addresses, from electronic Act of 1933 and the definitions of make all comment letters available for submissions. You should only submit information public inspection and copying in our you wish to make publicly available. ‘‘security’’ and ‘‘equity security’’ in the 2 17 CFR 230.405. Securities Exchange Act of 1934 to public reference room at the same 3 15 U.S.C. 77a et seq. include a security future. We are address. We will post electronically 4 17 CFR 240.3a11–1. amending the definitions of ‘‘equity submitted comment letters on the 5 15 U.S.C. 78a et seq.
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of 2000 6 is to provide a regulatory currently traded on national securities any such security; or any security framework for the trading of futures exchanges or associations. convertible, with or without contracts on equity securities.7 The We are amending the definitions of consideration into such a security, or CFMA permits national securities ‘‘equity security’’ in Securities Act Rule carrying any warrant or right to exchanges registered under Section 6 of 405 and Exchange Act Rule 3a11–1 to subscribe to or purchase such a security; the Exchange Act 8 and national include security futures, consistent with or any such warrant or right; or any put, securities associations registered under the statutory treatment of security call, straddle, or other option or Section 15A(a) of the Exchange Act 9 to futures.18 We adopted Rule 3a11–1 in privilege of buying such a security from list futures on individual securities and 1965 to clarify that the term ‘‘equity or selling such a security to another on narrow-based security indices security,’’ as used in Sections 12(g) and without being bound to do so.’’ (‘‘security futures’’).10 Among other 16 of the Exchange Act as well as II. Administrative Procedure Act things, the CFMA: Exchange Act Rule 12h–1,19 includes a Considerations • Amended the definition of wider range of equity interests than are ‘‘security’’ in Section 2(a)(1)11 of the specifically listed in the Exchange Act Pursuant to Section 553(b) of the Securities Act and Section 3(a)(10)12 of definition.20 In 1982, in connection with Administrative Procedure Act, 23 the the Exchange Act to include security our adoption of the integrated Commission for good cause finds that futures; disclosure system, we amended the prior notice and public comment is • Amended the definition of ‘‘equity definition of ‘‘equity security’’ in Rule unnecessary because, with respect to security’’ in Section 3(a)(11)13 of the 405 to conform it to the definition in security futures, these amendments only Exchange Act to include security Rule 3a11–1.21 The Rule 405 revision conform the definitions of the term futures; was made on the ground that there was ‘‘equity security’’ in Commission rules • Exempted certain security futures no basis for defining ‘‘equity security’’ to the statutory definition of the term, from the registration requirements of the differently for purposes of our Securities which was amended by the CFMA. We Securities Act 14; therefore do not believe that the • Act rules than for our Exchange Act Exempted security futures from the 22 conforming changes will impact the 15 rules. We are amending the definitions provisions of Section 12(a) of the of ‘‘equity security’’ in Rules 405 and public or industry. The changes will Exchange Act; 3a11–1 in the same fashion. Both rules prevent any ambiguity from arising as a • Amended Section 12(g) 16 of the would therefore remain identical. result of differences between the Exchange Act to clarify that security Because certain security futures are statutes and rules. Because the futures are not equity securities of the statutorily exempt from registration Commission has found good cause that issuer of the underlying securities; and under the Securities Act and the notice and comment are unnecessary, a • Amended Section 16 of the Exchange Act, and are expressly regulatory flexibility analysis is not Exchange Act to cover ownership of, required. 24 and transactions in, security futures. 17 included in Section 16 of the Exchange No futures contracts on single stocks Act, we do not believe that the III. Request for Comment or on narrow-based security indices are conforming changes will have any substantive impact. Rather, we believe We request comment on the changes we are adopting in this release. The 6 that the changes will prevent any Pub. L. No. 106–554 Stat. 2763 (2000). term ‘‘equity security’’ is used in a 7 H.R. Rep. No. 106–711 (II), at 2 (2000). ambiguity from arising as a result of 8 15 U.S.C. 78(f). differences between the statutes and variety of places in the federal securities 9 15 U.S.C. 78o–3(a). rules. laws. Although we believe that the 10 The terms ‘‘security future’’ and ‘‘narrow-based As amended, the definition of ‘‘equity inclusion of security futures in the Rule security index’’ are defined in Section 3(a)(55) of security’’ in both Securities Act Rule 405 and Rule 3a11–1 definitions will the Exchange Act [15 U.S.C. 78c(a)(55)]. not have any substantive effect, we 11 405 and Exchange Act Rule 3a11–1 will 15 U.S.C. 77b(a)(1). solicit comment as to whether it could 12 15 U.S.C. 78c(a)(10). read as follows (new language 13 15 U.S.C. 78c(a)(11) underscored): have an effect that we have not 14 The security futures exemption is contained in ‘‘[a]ny stock or similar security, considered. Commenters should provide Section 3(a)(14) of the Securities Act [15 U.S.C. certificate of interest or participation in empirical data on any anticipated 77c(a)(14)]. Section 3(a)(14) exempts any security any profit sharing agreement, effects. futures product that is: (A) cleared by a clearing agency registered under Section 17A of the preorganization certificate or IV. Effects on Competition Exchange Act or exempt from registration under subscription, transferable share, voting subsection (b)(7) of Section 17A; and (B) traded on trust certificate or certificate of deposit Section 23(a)(2) of the Exchange Act a national securities exchange or a national for an equity security, limited requires us to consider the anti- securities association registered pursuant to Section partnership interest, interest in a joint competitive effects of any rules that we 15A(a) of the Exchange Act. adopt under the Exchange Act. 15 15 U.S.C. 781(a). Section 12(a) of the Exchange venture, or certificate of interest in a Act prohibits any broker or dealer from engaging in business trust; any security future on Furthermore, Section 2(b) of the any transaction in a security on a national Securities Act and Section 3(f) of the exchange, unless the security is registered under the 18 Exchange Act require us, when engaging Exchange Act. There is no definition of the term ‘‘equity security’’ in the Securities Act, and there is no in rulemaking that requires us to 16 15 U.S.C. 781(g). corresponding definition of the term ‘‘security’’ in 17 consider or determine whether an action Exchange Act Section 16(f) [15 U.S.C. 78p(f)]. the Securities Act rules. Section 16 applies to every person who is the is necessary or appropriate in the public 19 17 CFR 240.12h–1. beneficial owner of more than ten percent of any interest, to consider whether the action 20 See Release No. 34–7581 (April 23, 1965). As class of equity security registered under Section 12 will promote efficiency, competition, of the Exchange Act, and each officer and director adopted, Rule 3a11–1 defined ‘‘equity security’’ to of the issuer of such security. Under Section 16, include such items as limited partnership interests, and capital formation. We are simply these persons must file reports disclosing their interests in joint ventures, certificates of interests in conforming the definition of ‘‘equity transactions in all equity securities of the issuer. We business trusts, voting trust certificates, and security’’ in our rules to the statutory American Depositary Receipts. intend to issue a separate interpretive release that changes with respect to security futures. will set forth the Commission’s views concerning 21 Release No. 33–6383 (March 3, 1982) [47 FR the treatment of security futures under Section 16 11819]. and other provisions of the federal securities laws 22 Release No. 33–6333 (August 6, 1981) [46 FR 23 5 U.S.C. 553(b)(B). and the rules thereunder. 44194]. 24 5 U.S.C. 603(a), 604(a).
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We think that the conformed definitions VII. Statutory Basis, Text of Rule and 79t, 80a–20, 80a–23, 80a–29, 80a–37, 80b–3, promote efficiency by conforming the Authority 80b–4 and 80b–11, unless otherwise noted. treatment of security futures under the The amendment to the Commission’s * * * * * statutes and our rules. We do not expect rule is being adopted pursuant to 4. The undesignated section heading, the amendments to have any anti- Sections 6, 7, 10 and 19(a) of the ‘‘Definition of ‘Equity Security’ As Used competitive effects. We solicit comment Securities Act and Sections 3(b) and in Sections 12(g) and 16’’ preceding on these matters with respect to the 23(a) of the Exchange Act. § 240.3a4–1 is removed and added to amended rules. Will the amendments immediately precede § 240.3a11–1. List of Subjects in 17 CFR Parts 230 and have an adverse effect on competition 240 5. Section 240.3a11–1 is revised to that is neither necessary nor appropriate read as follows: in furtherance of the purposes of the Securities, Reporting and § 240.3a11–1. Definition of the term Securities Act or the Exchange Act? recordkeeping requirements. For the reasons stated in the ‘‘equity security.’’ V. Cost-Benefit Analysis preamble, the Securities and Exchange The term equity security is hereby Commission amends Title 17, Chapter II defined to include any stock or similar The amendments we are adopting of the Code of Federal Regulations as security, certificate of interest or conform Rule 405 and Rule 3a11–1 to follows: participation in any profit sharing the revisions in the Securities Act and agreement, preorganization certificate or the Exchange Act, with respect to PART 230—GENERAL RULES AND subscription, transferable share, voting security futures. They do not alter the REGULATIONS, SECURITIES ACT OF trust certificate or certificate of deposit treatment of security futures under the 1933 for an equity security, limited Securities Act or the Exchange Act, or partnership interest, interest in a joint 1. The general authority citation for effect any change in the requirements venture, or certificate of interest in a Part 230 is revised to read as follows: imposed by the federal securities laws business trust; any security future on as they relate to security futures. The Authority: 15 U.S.C. 77b, 77c, 77d, 77f, any such security; or any security CFMA established the statutory 77g, 77h, 77j, 77r, 77s, 77sss, 77z–3, 78c, 78d, convertible, with or without framework for the treatment of security 78l, 78m, 78n, 78o, 78t, 78w, 78ll(d), 78mm, consideration into such a security, or 79t, 80a–8, 80a–24, 80a–28, 80a–29, 80a–30, futures under the federal securities laws and 80a–37, unless otherwise noted. carrying any warrant or right to subscribe to or purchase such a security; and the statutory amendments are self- * * * * * effectuating. We do not believe that the or any such warrant or right; or any put, 2. In § 230.405 the term ‘‘equity amendments will have any effect on call, straddle, or other option or security’’ is revised to read as follows: public companies or small entities. Any privilege of buying such a security from effect is the result of the CFMA § 230.405. Definitions of terms. or selling such a security to another without being bound to do so. amendments to both statutes. We * * * * * request comment on whether the Equity security. The term equity Dated: April 17, 2002. amendments would impose any security means any stock or similar By the Commission. additional burdens or costs on public security, certificate of interest or Margaret H. McFarland, companies or small entities outside of participation in any profit sharing Deputy Secretary. the costs or burdens imposed by the agreement, preorganization certificate or [FR Doc. 02–9854 Filed 4–22–02; 8:45 am] CFMA. subscription, transferable share, voting BILLING CODE 8010–01–U trust certificate or certificate of deposit VI. Paperwork Reduction Act for an equity security, limited Securities Act Rule 405 and Exchange partnership interest, interest in a joint DEPARTMENT OF TRANSPORTATION venture, or certificate of interest in a Act Rule 3a11–1 do not contain a business trust; any security future on ‘‘collection of information’’ requirement Coast Guard any such security; or any security within the meaning of the Paperwork 25 convertible, with or without 33 CFR Part 165 Reduction Act of 1995 (‘‘PRA’’). We consideration into such a security, or are amending Rule 405 and Rule 3a11– carrying any warrant or right to [CGD09–01–136] 1 to include security futures in the subscribe to or purchase such a security; RIN 2115–AA97 definition of ‘‘equity security.’’ The or any such warrant or right; or any put, CFMA amended Exchange Act Section call, straddle, or other option or Security Zone; Lake Erie, Toledo, OH 16 to state that the section applies to privilege of buying such a security from ownership of, and transactions in, or selling such a security to another AGENCY: Coast Guard, DOT. security futures products. The Exchange without being bound to do so. ACTION: Temporary final rule; Act rules under Section 16 impose * * * * * correction. information collection requirements; however, the new requirements under PART 240—GENERAL RULES AND SUMMARY: The Coast Guard published a Section 16 were prescribed by the REGULATIONS, SECURITIES temporary final rule on October 12, CFMA and would be the same without EXCHANGE ACT OF 1934 2001, creating a security zone surrounding the waters off of Davis the amendment to Rule 3a11–1. We Besse Nuclear Power Plant near Toledo, therefore are not required to submit the 3. The authority citation for Part 240 continues to read in part as follows: Ohio. The original parameters of that amendments to the Office of Authority: 15 U.S.C. 77c, 77d, 77g, 77j, zone blocked approximately 40 Management and Budget for approval beachfront homes from beach access. In under the PRA. 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, the interest of homeowners and 78j–l, 78k, 78k–l, 78l, 78m, 78n, 78o, 78p, recreational boaters within that zone, 25 44 U.S.C. 3501 et seq. 78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 79q, Captain of the Port (COTP) Toledo has
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readjusted the western boundary to American Datum 1983.’’; and on page Monday through Friday, except Federal allow these homeowners full access to 52039, in the third column, lines 24–31, holidays. their beachfront property, including use remove the sentence ‘‘This security zone FOR FURTHER INFORMATION CONTACT: of recreational vessels off that consists of all navigable waters of Lake LCDR Diane Kalina, Marine Safety beachfront property. The security zone Erie within a line beginning from Office Anchorage, at (907) 271–6700. position 41°36.8′ N, 083°06.2′ W; north is necessary to protect the Davis Besse SUPPLEMENTARY INFORMATION: Nuclear Power Plant from terrorist to 41°37.7′ N, 083°06.0′ W; east to threats. 41°36.6′ N, 083°03.7′ W; south to Regulatory History 41°35.8′ N, 083°04.0′ W, back to the DATES: This rule is effective from April We did not publish a notice of 2, 2002 through June 15, 2002. beginning point.’’ and add, in it’s place, proposed rulemaking (NPRM) for this the sentence ‘‘The boundary of the regulation. Under 5 U.S.C. 553(b)(B), the FOR FURTHER INFORMATION CONTACT: LT security zone commences at 41°36.3 N, Herb Oertli, Chief of Port Operations, ° ′ ° ′ Coast Guard finds that good cause exists 083 04.9 W; north to 41 37.0 N, for not publishing an NPRM. Because Marine Safety Office, 420 Madison Ave, 083°03.9′ W; east to 41°35.9′ N, Suite 700, Toledo, Ohio 43604; (419) ° ′ ° ′ the hazardous condition is expected to 083 02.5 W; south-west to 41 35.4 N, last for approximately 4 hours of each 418–6050. 083°03.7′ W; then back to the starting ° ′ ° ′ day for 24 days, and because general Background and Purpose point 41 36.3 N, 083 04.9 W.’’ permission to enter the safety zone will The Coast Guard published a Dated: April 3, 2002. be given during non-hazardous times, temporary final rule in the Federal David L. Scott, the impact of this rule on commercial Register on October 12, 2001, (66 FR Commander, U.S. Coast Guard, Captain of and recreational traffic is expected to be 52038), to create a security zone in the Port Toledo, Toledo, OH. minimal. Any delay encountered in this response to the September 11, 2001 [FR Doc. 02–9835 Filed 4–22–02; 8:45 am] regulation’s effective date would be terrorist attacks on the United States. BILLING CODE 4910–15–P contrary to public interest since We are changing the location of the immediate action is needed to protect western boundary of the security zone. human life and property from possible DEPARTMENT OF TRANSPORTATION fallout from the rocket launch. The Need for Correction parameters of the zone will not unduly Since publication, Captain of the Port Coast Guard impair business and transits of vessels. Toledo has learned that a western The Coast Guard will announce via boundary located more easterly or closer 33 CFR Part 165 Broadcast Notice to Mariners the to the nuclear plant would allow local [COTP Western Alaska–02–005] anticipated date and time of each home-owners full beach access, launch and will grant general including by recreational vessel. This RIN 2115–AA97 permission to enter the safety zone readjustment in no ways compromises Safety Zone; Gulf of Alaska, Narrow during those times in which the launch the intent of the original security zone. Cape, Kodiak Island, AK does not pose a hazard to mariners. The regulation was published in Under 5 U.S.C. 553(d)(3), the Coast response to the terrorist’s attacks on the AGENCY: Coast Guard, DOT. Guard finds that good cause exists for World Trade Center and the Pentagon ACTION: Temporary final rule. making this rule effective less than 30 on September 11, 2001. The security days after publication in the Federal zone is intended to protect the life, SUMMARY: The Coast Guard is Register. The process of scheduling a property, and national security of U.S. establishing a temporary safety zone in rocket launch is uncertain due to citizens. These factors were considered the Gulf of Alaska, southeast of Narrow unforeseen delays such as weather that along with the impact on local Cape, Kodiak Island, Alaska. The zone can cause cancellation of the launch. homeowners and recreational vessels in is needed to protect persons and vessels The Coast Guard attempts to publish a reestablishing the boundaries of this operating in the vicinity of the safety final rule as close to the expected security zone. zone during a rocket launch from the launch date as possible, however, these Alaska Aerospace Development attempts often prove futile due to Correction of Publication Corporation, Narrow Cape, Kodiak frequent re-scheduling. Any delay In rule FR Doc. 01–25651, published Island facility. Entry of vessels or encountered in this regulation’s on October 12, 2001, (66 FR 52038) persons into this zone is prohibited effective date would be unnecessary and make the following corrections. On page unless specifically authorized by the contrary to public interest since 52038, in the third column, lines 16–23, Commander, Seventeenth Coast Guard immediate action is needed to protect replace the sentence ‘‘The security zone District, the Coast Guard Captain of the human life and property from possible consists of all navigable waters of Lake Port, Western Alaska, or their on-scene fallout from the rocket launch. This Erie within a line beginning from representative. safety zone should have minimal impact position 41°36.8′ N, 083°06.2′ W; north DATES: This temporary final rule is on vessel transits and announcements to 41°37.7′ N, 083°06.0′ W; east to effective from 11:30 a.m. April 22, 2002 via Broadcast Notice to Mariners will 41°36.6′ N, 083°03.7′ W; south to through 5:30 p.m. May 15, 2002. The give vessels advance notice of the 41°35.8′ N, 083°04.0′ W, back to the safety zone will be enforced each of launch. beginning point.’’ and add, in it’s place, these days only from 11:30 a.m. to 5:30 the sentences ‘‘The boundary of the p.m. Background and Purpose security zone commences at 41°36.3′ N, ADDRESSES: Documents indicated in this The Alaska Aerospace Development 083°04.9′ W; north to 41°37.0′ N, preamble as being available in the Corporation (AADC) will launch an 083°03.9′ W; east to 41°35.9′ N, docket are available for inspection and unmanned rocket from their facility at 083°02.5′ W; south-west to 41°35.4′ N, copying at Coast Guard Marine Safety Narrow Cape, Kodiak Island, Alaska 083°03.7′ W; then back to the starting Office Anchorage, 510 ‘‘L’’ Street, Suite sometime between 1:30 p.m. and 5:30 point 41°36.3′ N, 083°04.9′ W. These 100, Anchorage, AK 99501. Normal p.m. each day from April 22, 2002 coordinates are based upon North Office hours are 7:30 a.m. to 4 p.m., through May 15, 2002. The safety zone
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is necessary to protect spectators and order. It has not been reviewed by the 121), we offered to assist small entities transiting vessels from the potential Office of Management and Budget under in understanding the rule so that they hazards associated with the launch. that order. It is not significant under the could better evaluate its effects on them The Coast Guard will announce via regulatory policies and procedures of and participate in the rulemaking Broadcast Notice to Mariners the the Department of Transportation (DOT) process. anticipated date and time of the launch (44 FR 11040; February 26, 1979). and will grant general permission to The Coast Guard expects the Collection of Information enter the safety zone during those times economic impact of this rule to be so This rule calls for no new collection in which a launch schedule does not minimal that a full Regulatory of information under the Paperwork pose a hazard to mariners. Because the Evaluation under paragraph 10(e) of the Reduction Act of 1995 (44 U.S.C. 3501— hazardous situation is expected to last regulatory policies and procedures of 3520). for approximately 4 hours of each day DOT is unnecessary. Because the for 24 days, and because general hazardous condition is expected to last Federalism permission to enter the safety zone will for approximately 4 hours of each day A rule has implications for federalism be given during non-hazardous times, for 24 days, and because general under Executive Order 13132, the impact of this rule on commercial permission to enter the safety zone will Federalism, if it has a substantial direct and recreational traffic is expected to be be given during non-hazardous times, effect on State or local governments and minimal. the impact of this rule on commercial would either preempt State law or traffic should be minimal. Before the Discussion of Rule impose a substantial direct cost of effective period, we will issue maritime compliance on them. We have analyzed From the latest information received advisories widely available to users of this rule under that Order and have from the Alaska Aerospace the affected portion of the Gulf of determined that this rule does not have Development Corporation, the launch Alaska. We believe there will be implications for federalism. window is scheduled for 4 hours each minimal economic impact on day from April 22, 2002 through May commercial traffic. Unfunded Mandates Reform Act 15, 2002. The size of the safety zone has been set based upon the trajectory Small Entities The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires information in order to provide a greater Under the Regulatory Flexibility Act Federal agencies to assess the effects of safety buffer in the event that the launch (5 U.S.C. 601—612), we have considered their discretionary regulatory actions. In is aborted shortly after take-off. The whether this rule would have significant particular, the Act addresses actions proposed safety zone includes an area in economic impacts on a substantial that may result in the expenditure by a the Gulf of Alaska, southeast of Narrow number of small entities. The term State, local, or tribal government, in the Cape, Kodiak Island, Alaska. ‘‘small entities’’ comprises small aggregate, or by the private sector of Specifically, the zone includes the businesses, not-for-profit organizations $100,000,000 or more in any one year. waters of the Gulf of Alaska that are that are independently owned and Though this rule will not result in such within the area by a line drawn from a operated and are not dominant in their an expenditure, we do discuss the point located at 57°26′41″ N, 152°22′23″ fields, and governmental jurisdictions effects of this rule elsewhere in this W, then northeast to a point located at with populations less than 50,000. 57°27′49″ N, 152°18′36″ W, then east to The Coast Guard certifies under 5 preamble. a point located at 57°26′37″ N, U.S.C. 605(b) that this rule will not have Taking of Private Property 152°09′20″ W, then southeast to a point a significant economic impact on a located at 57°21′07″ N, 151°52′40″ W, substantial number of small entities. This rule will not effect a taking of then south to a point located at This rule will affect the following private property or otherwise have 57°13′25″ N, 152°01′18″ W, then entities, some of which may be small taking implications under Executive northwest to a point located at 57°20′34″ entities: the owners or operators of Order 12630, Governmental Actions and N, 152°15′48″ W, then northwest to a vessels intending to transit, anchor, or Interference with Constitutionally point located at 57°24′23″ N, 152°22′24″ fish in a portion of the Gulf of Alaska Protected Property Rights. W and back to the first point. All off Ugak Island and Narrow Cape from Civil Justice Reform coordinates reference Datum: NAD 11:30 a.m. to 5:30 p.m. each day from 1983. April 22, 2002 through May 15, 2002. This rule meets applicable standards This safety zone is necessary to Because the hazardous situation, during in sections 3(a) and 3(b)(2) of Executive protect spectators and transiting vessels the planned rocket launch hours, is Order 12988, Civil Justice Reform, to from the potential hazards associated expected to last for approximately 4 minimize litigation, eliminate with the launch of the rocket. The Coast hours of each day for 24 days, and ambiguity, and reduce burden. Guard will announce via Broadcast because general permission to enter the Protection of Children Notice to Mariners the anticipated date safety zone will be given during non- and time of the launch and will grant hazardous times, the impact of this rule We have analyzed this rule under general permission to enter the safety on commercial and recreational traffic Executive Order 13045, Protection of zone during those times in which the should be minimal. Before the effective Children from Environmental Health launch does not pose a hazard to period, we will issue maritime Risks and Safety Risks. This rule is not mariners. advisories widely available to users of economically significant and does not the affected portion of the Gulf of cause an environmental risk to health or Regulatory Evaluation Alaska. We believe there will be risk to safety that may This rule is not a ‘‘significant minimal impact to small entities. disproportionately affect children. regulatory action’’ under section 3(f) of Indian Tribal Governments Executive Order 12866, Regulatory Assistance for Small Entities Planning and Review, and does not Under section 213(a) of the Small This rule does not have tribal require an assessment of potential cost Business Regulatory Enforcement implications under Executive Order and benefits under section 6(a)(3) of that Fairness Act of 1996 (Public Law 104– 13175, Consultation and Coordination
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with Indian Tribal Governments, Island, Alaska. Specifically, the zone on the navigable waters of the Kankakee because it would not have a substantial includes the waters of the Gulf of Alaska River, the Rock River, and Lake direct affect on one or more Indian that are within the area bounded by a Michigan in the Captain of the Port tribes, on the relationship between the line drawn from a point located at Zone Chicago. These security zones are Federal Government and Indian tribes, 57°26′41″ N, 152°22′23″ W, then necessary to protect the nuclear power or on the distribution of power and northeast to a point located at 57°27′49″ plants, water intake cribs, water responsibilities between the Federal N, 152°18′36″ W, then east to a point filtration plants, and Navy Pier from Government and Indian tribes. located at 57°26′37″ N, 152°09′20″ W, possible sabotage or other subversive then southeast to a point located at acts, accidents, or possible acts of Energy Effects 57°21′07″ N, 151°52′40″ W, then south terrorism. These zones are intended to We have analyzed this rule under to a point located at 57°13′25″ N, restrict vessel traffic from portions of Executive Order 13211, Actions 152°01′18″ W, then northwest to a point the Kankakee and Rock River and Lake Concerning Regulations That located at 57°20′34″ N, 152°15′48″ W, Michigan. Significantly Affect Energy Supply, then northwest to a point located at DATES: This rule is effective from 9 a.m. Distribution, or Use. We have 57°24′23″ N, 152°22′24″ W and back to (local) March 25, 2002 until June 15, determined that it is not a ‘‘significant the first point. All coordinates reference 2002. energy action’’ under that order because Datum: NAD 1983. ADDRESSES: Comments and material it is not a ‘‘significant regulatory action’’ (b) Enforcement periods. The safety received from the public, as well as under Executive Order 12866 and is not zone in this section will be enforced documents indicated in this preamble as likely to have a significant adverse effect from 11:30 a.m. to 5:30 p.m. each day being available in the docket, are part of on the supply, distribution, or use of from April 22, 2002 through May 15, docket CGD09–02–008 and are available energy. It has not been designated by the 2002. for inspection or copying at U.S. Coast Administrator of the Office of (c) Regulations. (1) The Captain of the Guard Marine Safety Office Chicago, Information and Regulatory Affairs as a Port and the Duty Officer at Marine 215 W. 83rd Street, Burr Ridge, IL 60521 significant energy action. Therefore, it Safety Office, Anchorage, Alaska can be between 8 a.m. and 4 p.m., Monday does not require a Statement of Energy contacted at telephone number (907) through Friday, except Federal holidays. Effects under Executive Order 13211. 271–6700. (2) The Captain of the Port may FOR FURTHER INFORMATION CONTACT: Environment authorize and designate any Coast Lieutenant Commander Al Echols, U.S. The Coast Guard considered the Guard commissioned, warrant, or petty Coast Guard Marine Safety Office environmental impact of this rule and officer to act on his behalf in enforcing Chicago, 215 W. 83rd Street, Burr Ridge, concluded that, under Figure 2–1, the safety zone. IL 60521. The telephone number is (630) paragraph 34(g) of Commandant (3) The general regulations governing 986–2175. Instruction M16475.1C, this rule is safety zones contained in § 165.23 SUPPLEMENTARY INFORMATION: categorically excluded from further apply. No person or vessel may enter or Regulatory Information environmental documentation. This rule remain in this safety zone, with the is excluded under paragraph (34)(g) exception of attending vessels, without We did not publish a notice of because it is a safety zone. A first obtaining permission from the proposed rulemaking (NPRM) for this ‘‘Categorical Exclusion Determination’’ Captain of the Port or his on-scene regulation. Under 5 U.S.C. 553(b)(B), the is available in the docket for inspection representative. The Captain of the Port, Coast Guard finds that good cause exists or copying where indicated under Western Alaska, or his on-scene for not publishing an NPRM. ADDRESSES. representative may be contacted at the Publication of a notice of proposed Kodiak Launch Complex via VHF rulemaking and delay of effective date List of Subjects in 33 CFR Part 165 marine channel 16. would be contrary to the public interest Harbors, Marine safety, Navigation because immediate action is necessary Dated: April 11, 2002. (water), Reporting and record keeping to prevent possible loss of life or injury. requirements, Security measures, W.J. Hutmacher, For the same reason, under 5 U.S.C. Waterways. Captain, U.S. Coast Guard, Captain of the 553(d)(3), the Coast Guard finds that Port, Western Alaska. good cause exists for making this rule For the reasons set out in the [FR Doc. 02–9836 Filed 4–22–02; 8:45 am] effective less than 30 days after preamble, the Coast Guard amends 33 BILLING CODE 4910–15–P publication in the Federal Register. CFR part 165 as follows: Background and Purpose PART 165—[AMENDED] DEPARTMENT OF TRANSPORTATION On September 11, 2001, the United 1. The authority citation for part 165 States was the target of coordinated continue to read as follows: Coast Guard attacks by international terrorists resulting in catastrophic loss of life, the Authority: 33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR Part 165 33 CFR 1.05–1(g), 6.401–1, 6.04–6, 160.5; 49 destruction of the World Trade Center, CFR 1.46. [CGD09–02–008] and significant damage to the Pentagon. National security and intelligence 2. From April 22, 2002, through May RIN 2115–AA97 15, 2002, add temporary § 165.T17–008 officials warn that future terrorists to read as follows: Security Zones; Captain of the Port attacks are likely. This regulation establishes nine Chicago Zone, Lake Michigan § 165.T17–008 Alaska Aerospace temporary security zones for the Development Corporation, Narrow Cape, AGENCY: Coast Guard, DOT. following facilities: (1) Navy Pier and Kodiak Island, AK: Safety Zones. ACTION: Temporary final rule. the Jardine Water Filtration Plant; (2) (a) Description. This safety zone Dresden Nuclear Power Plant Water includes an area in the Gulf of Alaska, SUMMARY: The Coast Guard is Intake; (3) Donald C. Cook Nuclear southeast of Narrow Cape, Kodiak establishing temporary security zones Power Plant; (4) Palisades Nuclear
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Power Plant; (5) Byron Nuclear Power boaters in portions of the Illinois River particular, the Act addresses actions Plant; (6) Zion Nuclear Power Plant; (7) and Des Plaines River will be impacted, that may result in the expenditure by a 68th Street Water Intake Crib; (8) Dever however recreational traffic in those State, local, or tribal government, in the Water Intake Crib; and (9) 79th Street areas is historically quite low. aggregate, or by the private sector of Water Filtration Plant. Commercial river traffic on the Illinois $100,000,000 or more in any one year. These security zones are necessary to and Des Plaines River will be Though this proposed rule would not protect the public, facilities, and the unimpeded. The Captain of the Port result in such an expenditure, we do surrounding area from possible sabotage Chicago will generally permit those U.S. discuss the effects of this rule elsewhere or other subversive acts. All persons Coast Guard certificated passenger in this preamble. other than those approved by the vessels that normally load and unload Taking of Private Property Captain of the Port Chicago, or his passengers at the Navy Pier to regularly authorized representative, are operate in the zone. However, should This rule will not effect a taking of prohibited from entering or moving the Captain of the Port Chicago private property or otherwise have within the zones with those exceptions determine it is appropriate, he will taking implications under Executive described below. The Captain of the require even those U.S. Coast Guard Order 12630, Governmental Actions and Port Chicago may be contacted via VHF certificated passenger vessels that Interference with Constitutionally Channel 16 for further instructions normally load and unload passengers at Protected Property Rights. before transiting through the restricted the Navy Pier to request permission Civil Justice Reform area. The Captain of the Port Chicago’s before leaving or entering the security on-scene representative will be the zones. The Captain of the Port Chicago This rule meets applicable standards patrol commander. In addition to will notify these vessels via Broadcast in sections 3(a) and 3(b)(2) of Executive publication in the Federal Register, the Notice to Mariners if they must notify Order 12988, Civil Justice Reform, to public will be made aware of the the Coast Guard before transiting the minimize litigation, eliminate existence of these security zones, their security zone. This rule will not ambiguity, and reduce burden. exact locations, and the restrictions obstruct the regular flow of traffic and Protection of Children involved via Broadcast Notice to will allow vessel traffic to pass around Mariners. the security zone. We have analyzed this rule under Executive Order 13045, Protection of Regulatory Evaluation Assistance for Small Entities Children from Environmental Health This rule is not a ‘‘significant Under section 213(a) of the Small Risks and Safety Risks. This rule is not regulatory action’’ under section 3(f) of Business Regulatory Enforcement an economically significant rule and Executive Order 12866, Regulatory Fairness Act of 1996 (Public Law 104– does not create an environmental risk to Planning and Review, and does not 121), we offered to assist small entities health or risk to safety that may require an assessment of potential costs in understanding the rule so that they disproportionately affect children. and benefits under section 6(a)(3) of that could better evaluate its effects on them Indian Tribal Governments Order. The Office of Management and and participate in the rulemaking Budget has not reviewed it under that process. Small businesses may send This rule does not have tribal Order. It is not ‘‘significant’’ under the comments on the actions of Federal implications under Executive Order regulatory policies and procedures of employees who enforce, or otherwise 13175, Consultation and Coordination the Department of Transportation determine compliance with, Federal with Indian Tribal Governments, (DOT)(44 FR 11040, February 26, 1979). regulations to the Small Business and because it does not have a substantial The Coast Guard expects the Agriculture Regulatory Enforcement direct effect on one or more Indian economic impact of this proposal to be Ombudsman and the Regional Small tribes, on the relationship between the so minimal that a full Regulatory Business Regulatory Fairness Boards. Federal Government and Indian tribes, Evaluation under paragraph 10(e) of the The Ombudsman evaluates these or on the distribution of power and regulatory policies and procedures of actions annually and rates each agency’s responsibilities between the Federal DOT is unnecessary. responsiveness to small business. If you Government and Indian tribes. Small Entities wish to comment on actions by Environment employees of the Coast Guard, call 1– We have considered the Under the Regulatory Flexibility Act 888–REG–FAIR (1–888–734–3247). (5 U.S.C. 601–612), we have considered environmental impact of this rule and whether this rule would have a Collection of Information concluded that under figure 2–1, significant economic impact on a This rule calls for no new collection paragraph (34)(g), of Commandant substantial number of small entities. of information under the Paperwork Instruction M16475.1C, this rule is The term ‘‘small entities’’ comprises Reduction Act of 1995 (44 U.S.C. 3501– categorically excluded from further small businesses, not-for-profit 3520). environmental documentation. A organizations that are independently ‘‘Categorical Exclusion Determination’’ owned and operated and are not Federalism is available in the docket where dominant in their fields, and We have analyzed this rule under indicated under ADDRESSES. governmental jurisdictions with Executive Order 13132, Federalism, and Energy Effects populations of less than 50,000. have determined that this rule does not The Coast Guard certifies under 5 have implications for federalism under We have analyzed this proposed rule U.S.C. 605(b) that this rule will not have that Order. under Executive Order 13211, Actions a significant economic impact on a Concerning Regulations That substantial number of small entities. Unfunded Mandates Reform Act Significantly Affect Energy Supply, These security zones will not have a The Unfunded Mandates Reform Act Distribution, or Use. We have significant economic impact on a of 1995 (2 U.S.C. 1531–1538) requires determined that it is not a ‘‘significant substantial number of small entities for Federal agencies to assess the effects of energy action’’ under that order because the following reasons. Recreational their discretionary regulatory actions. In it is not a ‘‘significant regulatory action’’
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under Executive Order 12866 and is not (4) All waters of Lake Michigan Coast Guard on board Coast Guard, likely to have a significant adverse effect around the Palisades Nuclear Power Coast Guard Auxiliary, local, state, and on the supply, distribution, or use of Plant within a line starting at the federal law enforcement vessels. energy. It has not been designated by the shoreline in approximate position Emergency response vessels are Administrator of the Office of 42°19′02″ N, 86°19′05″ W, thence authorized to move within the zones. Information and Regulatory Affairs as a northwest to 42°20′10″ N, 86°20′01″ W, (4) Persons desiring to transit the area significant energy action. Therefore, it thence northeast to 42°19′43″ N, of these security zones may contact the does not require a Statement of Energy 86°19′52″ W, thence to the shoreline at Captain of the Port at telephone number Effects under Executive Order 13211. 42°19′26″ N, 86°18′55″ W; (630) 986–2175 or on VHF channel 16 (5) All waters of the Rock River (121.5 MHz) to seek permission to List of Subjects in 33 CFR Part 165 within a 100-yard radius of the Byron transit the area. If permission is granted, Harbors, Marine safety, Navigation Nuclear Power Plant; with its center in all persons and vessels shall comply (water), Reporting and record keeping approximate position 42°05′01″ N, with the instructions of the Captain of requirements, security measures, 89°19′27″ W; the Port or his or her designated waterways. (6) All waters 100 yards in all representative. For the reasons discussed in the directions of the 68th Street Crib, with (c) Authority. In addition to 33 U.S.C. its center in approximate position 1231 and 50 U.S.C. 191, the authority preamble, the Coast Guard amends 33 ° ′ ″ ° ′ ″ CFR part 165 as follows: 41 47 10 N, 87 31 51 W; for this section includes 33 U.S.C. 1226. (7) All waters 100 yards in all Dated: March 25, 2002. PART 165—REGULATED NAVIGATION directions of the Dever Crib; with its AREAS AND LIMITED ACCESS AREAS center in approximate position R.E. Seebald, 41°54′55″ N, 87°33′20″ W; Captain, U.S. Coast Guard, Captain of the 1. The authority citation for part 165 (8) All waters of Lake Michigan Port, Chicago. continues to read as follows: around the Zion Nuclear Power Plant [FR Doc. 02–9939 Filed 4–22–02; 8:45 am] Authority: 33 U.S.C. 1231; 50 U.S.C. 191, within a line starting from the shoreline BILLING CODE 4910–15–U 33 CFR 1.05–1(g), 6.04–1, 6.04–6, 160.5; 49 in approximate position 42°26′36″ N, CFR 1.46. 87°48′03″ W, thence southeast to 2. A new temporary § 165.T09–002 is 42°26′20″ N, 87°47′35″ W, thence DEPARTMENT OF VETERANS added to read as follows: northeast to 42°26′53″ N, 87°47′22″ W, AFFAIRS thence to the shoreline at 42°27′06″ N, § 165.T09–002 Security Zones; Captain of 87°48′00″ W; 38 CFR Part 46 the Port Chicago Zone, Lake Michigan. (9) All waters of Lake Michigan RIN 2900–AJ76 (a) Location. The following areas are within an arc of a circle with a 100-yard security zones. All coordinates are radius centered on the 79th Street Water Policy Regarding Participation in based upon North American Datum Filtration Plant, approximate position National Practitioner Data Bank 1983. 41°45′30″ N, 87°33′32″ W. (1) All waters between the Navy Pier (b) Regulations. (1) In accordance AGENCY: Department of Veterans Affairs. and the Jardine Water Filtration Plant with § 165.33, entry into this zone is ACTION: Final rule. shoreward of a line starting at the prohibited unless authorized by the southeast corner of the Jardine Water Coast Guard Captain of the Port SUMMARY: This document amends our Filtration Plant at 41°53′36″ N, Chicago. Section 165.33 also contains regulations regarding reporting of health 87°36′17″ W, and ending at the other general requirements. care practitioners to the National northeast corner of the Navy Pier at (2) The Captain of the Port Chicago Practitioner Data Bank (NPDB). We are 41°53′33″ N, 87°35′55″ W, and will normally permit those U. S. Coast amending the provisions concerning shoreward of a line starting at the Guard certificated passenger vessels that malpractice payment reporting by southeast corner of the Navy Pier at normally load and unload passengers at delegating the underlying decision- 41°53′29″ N, 87°35′55″ W, thence to the Navy Pier to operate in the zone. making to malpractice payment review east end of Dime Pier at 41°53′23″ N, However, should the Captain of the Port panels; by delegating the actual 87°35′58″ W, thence along the south Chicago determine it is appropriate, he reporting authority to facility directors side of Dime Pier to the west end of will require even those U. S. Coast and the Chief Patient Care Services Dime Pier at 41°53′23″ N, 87°36′29″ W Guard certificated passenger vessels that Officer; by establishing new procedures thence southeast to the corner of the normally load and unload passengers at for obtaining information from affected seawall at 41°53′22″ N, 87°36′28″ W; Navy Pier to request permission before health care practitioners and others; and (2) All waters in the vicinity of the leaving or entering the security zone. by establishing medical reporting Dresden Nuclear Power Plant south of a The Captain of the Port Chicago will criteria for licensed trainees and line starting at the Illinois River shore notify these vessels via Broadcast Notice supervisory health care professionals. at approximate position 41°23′45″ N, to Mariners if they must notify the Coast We also are amending the regulations 88°16′18″ W, thence east to shore at Guard before transiting the security concerning malpractice payment approximate position 41°23′39″ N, zone. This rule will not obstruct the reporting and clinical privileges actions 88°16′09″ W; regular flow of traffic and will allow reporting by stating that reporting may (3) All waters of Lake Michigan vessel traffic to pass around the security not be the subject of negotiated around the Donald C. Cook Nuclear zone. settlements and that independent Power Plant water intakes within a line (3) All persons and vessels shall contractors acting on behalf of the starting at the shoreline at 41°58.656′ N, comply with the instruction of the Department of Veterans Affairs (VA) are 86°33.972′ W, thence northwest to Captain of the Port Chicago or the subject to the NPDB reporting 41°58.769′ N, 86°34.525′W, thence designated on-scene U.S. Coast Guard provisions. These amendments are southwest to 41°58.589′ N, 86°34.591′ patrol personnel. On-scene patrol necessary to make the reporting process W, thence southeast to the shoreline at personnel include commissioned, more efficient and fair and to ensure 41°58.476′ N, 86°34.038′ W; warrant, and petty officers of the U.S. that reporting is accomplished in
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accordance with the statutory include issues requiring such considering whether to report the framework. specialized expertise. Further, the practitioner to the National Practitioner DATES: Effective May 23, 2002. regulations at § 46.3(b) allow for the Data Bank because of a specified review panel to obtain and consider malpractice payment made, and FOR FURTHER INFORMATION CONTACT: opinions of experts as needed. providing the practitioner the Kathryn W. Enchelmayer, Director, The medical school representative opportunity, within 30 days of receipt, Credentialing and Privileging, Office of asserted that VA should provide legal to submit a written statement Quality and Performance (10Q), VHA, representation to a health care concerning the care that led to the Department of Veterans Affairs, 810 practitioner during the preliminary tort claim. Based on our further review of Vermont Avenue, NW, Washington, DC case and during the subsequent process this matter, we believe it is necessary to 20420; (202)–273–7464 (This is not a for determining whether such lengthen the time period allowed for the toll-free number). individual should be reported to the health care practitioner to respond from SUPPLEMENTARY INFORMATION: In a NPDB. No changes are made based on 30 days to 60 days to ensure that the document published in the Federal these comments. In matters of dispute, practitioner has sufficient time to Register on June 5, 2001, at 66 FR VA must represent VA’s interest. VA prepare a response. 30141, we proposed to amend our counsel would create a conflict of regulations set forth at 38 CFR Part 46 interest if they were also to represent a Paperwork Reduction Act concerning the reporting of physicians, health care practitioner regarding the This document contains provisions dentists, and other health care reporting issues. However, a health care constituting collections of information practitioners to the NPDB. These practitioner may obtain personal under the Paperwork Reduction Act (44 regulations concern malpractice counsel regarding any submissions to U.S.C. 3501–3520) approved by the payment reporting and clinical the review panel. Moreover, as stated in Office of Management and Budget under privileges actions reporting. § 46.3(b), any prior statements provided control number 2900–0621. Interested persons were given 60 days by the health care practitioner during Executive Order 12866 to submit comments. The comment the tort consideration process are not period ended August 6, 2001. We included in the information provided to This document has been reviewed by received comments from two the review panel for consideration. the Office of Management and Budget commenters. One commenter, a The medical school representative under Executive Order 12866. representative of a medical association, asserted that the review panel should be Regulatory Flexibility Act supported the proposed rule without required to obtain all necessary change. The other commenter, a information before making a The Secretary hereby certifies that the representative of a medical school, determination on a case. No changes are adoption of this proposed rule would suggested that certain changes should be made based on this comment. Under the not have a significant economic impact made. These comments are discussed provisions of § 46.3(b) the review panel on a substantial number of small entities below. Based on the rationale set forth is required to be provided the as they are defined in the Regulatory in the proposed rule and this document, documents pertinent to the care that led Flexibility Act, 5 U.S.C. 601–612. This we are adopting the provisions of the to the claim, including the medical rulemaking proceeding affects only proposed rule as a final rule with records of the patient whose care led to individuals. Accordingly, pursuant to 5 certain changes discussed below. the claim, any report of an U.S.C. 605(b), this proposed rule is The medical school representative administrative investigation board exempt from the initial and final objected to the regulations based on the appointed to investigate the care, the regulatory flexibility analyses incorrect assumption that VA would opinion of any consultant which the requirements of sections 603 and 604. report a health care practitioner if the panel may request in its discretion and, The Catalog of Federal Domestic claim constituted a ‘‘nuisance claim’’ or to the extent practicable, written Assistance numbers for the programs affected ‘‘if the status of a given practitioner as statements of the individual(s) involved by this document are 64.005, 64.007, 64.008, a beneficiary [of a malpractice payment] in the care which led to the claim. We 64,009, 64.010, 64.011, 64.012, 64.013, cannot be demonstrated.’’ No changes believe this is adequate to ensure that a 64.014, 64.015, 64.016, 64.018, 64.019, are made based on this comment. The review panel has all of the necessary 64.022, 64.024, and 64.025. regulations at § 46.3 provide for information for making reporting List of Subjects in 38 CFR Part 46 reporting only after a determination by determinations. Health professions. at least a majority of a review panel that The medical school representative payment was related to substandard asserted that the review panel should be Approved: February 19, 2002. care, professional incompetence, or required to articulate in its conclusions Anthony J. Principi, professional misconduct on the part of the reasons for reporting a health care Secretary of Veterans Affairs. the actual health care practitioner to be practitioner. We agree and have For the reasons set forth in the reported. amended § 46.3 accordingly. preamble, 38 CFR part 46 is revised to The medical school representative The medical school representative read as follows: asserted that the review panel should asserted that the reporting standards consist only of members having the should be based on the local standard of PART 46—POLICY REGARDING same area of expertise as the care. No changes are made based on this PARTICIPATION IN NATIONAL practitioner in question ‘‘or, in the comment. VA is a nation-wide health PRACTITIONER DATA BANK alternative, only panel members having care system that is designed to adhere Subpart A—General Provisions such expertise be allowed to vote.’’ No to one standard of care at all health care changes are made based on these facilities. Sec. comments. Based on a review of the The proposed rule at § 46.3(b) 46.1 Definitions. more than 1,100 paid claims that have provides that a health care practitioner 46.2 Purpose. been considered by a review panel since whose actions are under review will Subpart B—National Practitioner Data Bank 1997, we have concluded that the receive a written notice from the VA Reporting overwhelming majority of claims do not facility director indicating that VA is 46.3 Malpractice payment reporting.
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46.4 Clinical privileges actions reporting. privileges of a physician or dentist taken the Department of Veterans Affairs (VA) Subpart C—National Practitioner Data Bank as a result of a professional review for the purpose of having VA participate Inquiries activity based on the competence or in the National Practitioner Data Bank. Such a Memorandum of Understanding 46.5 National Practitioner Data Bank professional conduct of an individual inquiries. physician or dentist in cases in which has been established. Pursuant to the such conduct affects or could affect Memorandum of Understanding, VA Subpart D—Miscellaneous adversely the health or welfare of a will obtain information from the Data 46.6 Medical quality assurance records patient, or patients. An action is not Bank concerning physicians, dentists, confidentiality. considered to be based on the and other health care practitioners who 46.7 Prohibitions concerning negotiations. competence or professional conduct of a provide or seek to provide health care 46.8 Independent contractors. physician or dentist, if the action is services at VA facilities and also report Authority: 38 U.S.C. 501; 42 U.S.C. 11101– primarily based on: information regarding malpractice 11152. (1) A physician’s or dentist’s payments and adverse clinical association with, administrative privileges actions to the Data Bank. This Subpart A—General Provisions supervision of, delegation of authority part essentially restates or interprets § 46.1 Definitions. to, support for, or training of, a member provisions of that Memorandum of Understanding and constitutes the (a) Act means The Health Care Quality or members of a particular class of health care practitioner or professional, policy of VA for participation in the Improvement Act of 1986, as amended National Practitioner Data Bank. (42 U.S.C. 11101–11152). or (2) Any other matter that does not (b) Claim of medical malpractice relate to the competence or professional Subpart B—National Practitioner Data means a written claim or demand for conduct of a physician or dentist in his/ Bank Reporting payment based on an act or omission of her practice at a Department of Veterans a physician, dentist, or other health care § 46.3 Malpractice payment reporting. Affairs health care facility. practitioner in furnishing (or failing to (a) VA will file a report with the (k) Professional review activity means furnish) health care services, and National Practitioner Data Bank, in an activity with respect to an individual includes the filing of a complaint or accordance with regulations at 45 CFR physician or dentist to establish a administrative tort claim under the part 60, subpart B, as applicable, recommendation regarding: regarding any payment for the benefit of Federal Tort Claims Act, 28 U.S.C. (1) Whether the physician or dentist a physician, dentist, or other licensed 1346(b), 2671–2680. may have clinical privileges with health care practitioner which was (c) Clinical privileges means respect to the medical staff of the made as the result of a settlement or privileges granted by a health care entity facility; judgment of a claim of medical to individuals to furnish health care. (2) The scope or conditions of such malpractice. The report will identify the (d) Dentist means a doctor of dental privileges or appointment; or surgery or dental medicine legally (3) Change or modification of such physician, dentist, or other licensed health care practitioner for whose authorized to practice dental surgery or privileges. dentistry by a State (or any individual (l) State means the fifty States, the benefit the payment is made. It is who holds himself or herself out to be District of Columbia, Puerto Rico, the intended that the report be filed within so authorized). Virgin Islands, Guam, American Samoa, 30 days of the date payment is made. (e) Director means the duly appointed the Northern Mariana Islands, and any This may not be possible in all cases; director of a Department of Veterans other territories or possessions of the e.g., sometimes notification of payment is delayed, and sometimes the Affairs health care facility or any United States. individual with authorization to act for (m) State Licensing Board means, malpractice payment review process that person in the director’s absence. with respect to a physician, dentist, or cannot be completed within the (f) Gross negligence is materially other health care practitioner in a State, timeframe. The report will provide the worse than substandard care, and the agency of the State, which is following information: (1) With respect to the physician, consists of an entire absence of care, or primarily responsible for the licensing dentist, or other licensed health care an absence of even slight care or of the physician, dentist, or practitioner practitioner for whose benefit the diligence; it implies a thoughtless to furnish health care services. payment is made— disregard of consequences or (n) Willful professional misconduct (i) Name; indifference to the rights of others. means worse than mere substandard (g) Health care facility means a (ii) Work address; care, and contemplates the intentional (iii) Home address, if known; hospital, domiciliary, outpatient clinic, doing of something with knowledge that (iv) Social Security number, if known, or any other entity that provides health it is likely to result in serious injuries and if obtained in accordance with care services. or in reckless disregard of its probable section 7 of the Privacy Act of 1974; (h) Other health care practitioner consequences. (v) Date of birth; means an individual other than a (vi) Name of each professional school § 46.2 Purpose. physician or dentist who is licensed or attended and year of graduation; otherwise authorized by a State to The National Practitioner Data Bank, (vii) For each professional license: the provide health care services. authorized by the Act and administered license number, the field of licensure, (i) Physician means a doctor of by the Department of Health and Human and the State in which the license is medicine or osteopathy authorized to Services, was established for the held; practice medicine or surgery by a State purpose of collecting and releasing (viii) Drug Enforcement (or any individual who holds himself or certain information concerning Administration registration number, if herself out to be so authorized). physicians, dentists, and other health applicable and known; (j) Professional review action means a care practitioners. The Act mandates (ix) Name of each health care entity recommendation by a professional that the Department of Health and with which affiliated, if known. review panel (with at least a majority Human Services seek to enter into a (2) With respect to the reporting VA vote) to affect adversely the clinical Memorandum of Understanding with entity—
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(i) Name and address of the reporting are under review will receive a written Note to paragraph (c): Licensed trainees entity; notice, hand-delivered or sent to the acting outside the scope of their training (ii) Name, title and telephone number practitioner’s last known address (return program (e.g. acting as admitting officer of of the responsible official submitting the receipt requested), from the VA facility the day) will be reported under the provisions of paragraph (b) of this section. report on behalf of the Federal director at the time the VA facility government; and director receives the Notice of Payment. (d) The Director of the facility at (iii) Relationship of the entity to the That notice from the VA facility director which the claim arose has the primary physician, dentist, or other health care will indicate that VA is considering responsibility for submitting the report practitioner being reported. whether to report the practitioner to the to the National Practitioner Data Bank (3) With respect to the judgment or National Practitioner Data Bank because and for providing a copy to the settlement resulting in the payment— of a specified malpractice payment practitioner, to the State Licensing (i) Where an action or claim has been made, and provide the practitioner the Board in each State where the filed with an adjudicative body, opportunity, within 60 days of receipt, practitioner holds a license, and to the identification of the adjudicative body State Licensing Board in which the and the case number; to submit a written statement concerning the care that led to the facility is located. However, the Chief (ii) Date or dates on which the act(s) Patient Care Services Officer is also or omission(s), which gave rise to the claim. Inability to notify or non- response from the identified authorized to submit the report to the action or claim occurred; National Practitioner Data Bank and (iii) Date of judgment or settlement; practitioner(s) will not preclude (iv) Amount paid, date of payment, completion of the review and reporting provide copies to the practitioner and and whether payment is for a judgment process. The panel, at its discretion, State Licensing Boards in cases where or a settlement; may request additional information the Chief Patient Care Services Officer (v) Description and amount of from the practitioner or the VA facility deems it appropriate to do so. The judgment or settlement and any where the incident occurred. The Director of the facility also shall provide conditions attached thereto, including review panel’s notification to the VA to the practitioner a copy of the review terms of payment; facility Director shall include the acts or panel’s notification to the Director. (vi) A description of the acts or omissions considered, the reporting (The Office of Management and Budget omissions and injuries or illnesses upon conclusion, and the rationale for the has approved the information collection which the action or claim was based; conclusion. requirements in this section under and control number 2900–0621.) (c) Attending staff (including contract (vii) Classification of the acts or omissions in accordance with a employees, such as scarce medical § 46.4 Clinical privileges actions reporting. specialists providing care pursuant to a reporting code adopted by the Secretary (a) VA will file an adverse action of Health and Human Services. contract under 38 U.S.C. 7409) are report with the National Practitioner (b) Payment will be considered to responsible for actions of licensed Data Bank in accordance with have been made for the benefit of a trainees assigned under their regulations at 45 CFR part 60, subpart B, physician, dentist, or other licensed supervision. Notwithstanding the as applicable, regarding any of the health care practitioner only if (at least provisions of paragraph (b) of this following actions: section, actions of a licensed trainee a majority of) a malpractice payment (1) An action of a Director after (intern or resident) acting within the review panel concludes that payment consideration of a professional review scope of his or her training program that was related to substandard care, action that, for a period longer than 30 otherwise would warrant reporting for professional incompetence, or days, adversely affects (by reducing, substandard care, professional professional misconduct on the part of restricting, suspending, revoking, or incompetence, or professional the physician, dentist, or other licensed failing to renew) the clinical privileges misconduct under the provisions of health care practitioner. For purposes of of a physician or dentist relating to paragraph (b) of this section, will be this part, a panel shall have a minimum possible incompetence or improper of three individuals appointed by the reported only if the panel, by at least a professional conduct. Director, Medical-Legal Affairs majority, concludes that such actions constitute gross negligence or willful (2) Acceptance of the surrender of (including at least one member of the clinical privileges, including the professional misconduct. For purposes profession/occupation of the surrender of clinical privileges inherent of paragraph (b) of this section, payment practitioner(s) whose actions are under in resignation or retirement, or any will be considered to be made for the review). The conclusions of the panel restriction of such privileges by a benefit of a physician, dentist, or other shall, at a minimum, be based on review physician or dentist either while under health care practitioner, in their of documents pertinent to the care that investigation by the health care entity supervisory capacity, if the panel led to the claim. These documents relating to possible incompetence or concludes, by at least a majority, that include the medical records of the improper professional conduct, or in the physician, dentist or other health patient whose care led to the claim, any return for not conducting such an care practitioner was acting in a report of an administrative investigation investigation or proceeding whether or supervisory capacity; that the payment board appointed to investigate the care, not the individual remains in VA and the opinion of any consultant was related to substandard care, service. which the panel may request in its professional incompetence, or (b) The report specified in paragraph discretion. These documents do not professional misconduct of the trainee (a) of this section will provide the include those generated primarily for and not the supervisor; and that the following information— consideration or litigation of the claim trainee did not commit gross negligence of malpractice. In addition, to the extent or willful professional misconduct. (1) With respect to the physician or practicable, the documents shall include Such report will note that the physician, dentist: written statements of the individual(s) dentist, or other health care practitioner (i) Name; involved in the care which led to the is being reported in a supervisory (ii) Work address; claim. The practitioner(s) whose actions capacity. (iii) Home address, if known;
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(iv) Social Security number, if known the medical staff or who has clinical ENVIRONMENTAL PROTECTION (and if obtained in accordance with privileges at a VA hospital or other AGENCY section 7 of the Privacy Act of 1974); health care entity operated under the (v) Date of birth; auspice of VA; and 40 CFR Part 52 (vi) Name of each professional school (c) At other times pursuant to VA [CA 247–0322a; FRL–7158–4] attended and year of graduation; (vii) For each professional license: the policy and needs and consistent with the Act and Department of Health and Revisions to the California State license number, the field of licensure, Implementation Plan, Monterey Bay Human Services Regulations (45 CFR and the name of the State in which the Unified Air Pollution Control District license is held; part 60). (viii) Drug Enforcement AGENCY: Environmental Protection Subpart D—Miscellaneous Administration registration number, if Agency (EPA). applicable and known; § 46.6 Medical quality assurance records ACTION: Direct final rule. (ix) A description of the acts or confidentiality. omissions or other reasons for privilege SUMMARY: EPA is taking direct final loss, or, if known, for surrender; and Note that medical quality assurance action to approve a revision to the (x) Action taken, date action was records that are confidential and Monterey Bay Unified Air Pollution made final, length of action and privileged under the provisions of 38 Control District (MBUAPCD) portion of effective date of the action. U.S.C. 5705 may not be used as the California State Implementation (2) With respect to the VA facility— evidence for reporting individuals to the Plan (SIP). This revision concerns the (i) Name and address of the reporting National Practitioner Data Bank. emission of volatile organic compounds facility; and (VOC) from the transfer of gasoline into (ii) Name, title, and telephone number § 46.7 Prohibitions concerning stationary storage containers and from of the responsible official submitting the negotiations. gasoline bulk plants and terminals. We report. Reporting under this part (including are approving local rules that regulates (c) A copy of the report referred to in the submission of copies) may not be this emission source under the Clean paragraph (a) of this section will also be the subject of negotiation in any Air Act as amended in 1990 (CAA or the filed with the State Licensing Board in settlement agreement, employee action, Act). the State(s) in which the practitioner is legal proceedings, or any other DATES: This rule is effective on June 24, licensed and in which the facility is negotiated settlement. 2002, without further notice, unless located. It is intended that the report be EPA receives adverse comments by May filed within 15 days of the date the § 46.8 Independent contractors. 23, 2002. If we receive such comments, action is made final, that is, subsequent we will publish a timely withdrawal in Independent contractors acting on to any internal (to the facility) appeal. the Federal Register to notify the public (d) As soon as practicable after it is behalf of the Department of Veterans that this rule will not take effect. Affairs are subject to the National determined that a report shall be filed ADDRESSES: Mail comments to Andy Practitioner Data Bank reporting with the National Practitioner Data Bank Steckel, Rulemaking Office Chief (AIR– provisions of this part. In the following and State Licensing Boards under 4), U.S. Environmental Protection circumstances, VA will provide the paragraphs (a)(2) and (c) of this section, Agency, Region IX, 75 Hawthorne VA shall provide written notice to the contractor with notice that a report of a Street, San Francisco, CA 94105. practitioner that a report will be filed clinical privileges action will be filed You can inspect copies of the with the National Practitioner Data Bank with the National Practitioner Data Bank submitted rule revisions and EPA’s with a copy to the State Licensing Board with a copy with the State Licensing technical support document (TSD) at in each State in which the practitioner Board in the State(s) in which the our Region IX office during normal is licensed and in the State in which the contractor is licensed and in which the business hours. You may also see copies facility is located. facility is located: where VA terminates of the submitted rule revisions and TSD a contract for possible incompetence or at the following locations: Subpart C—National Practitioner Data improper professional conduct, thereby Bank Inquiries Environmental Protection Agency, Air automatically revoking the contractor’s Docket (6102), Ariel Rios Building, § 46.5 National Practitioner Data Bank clinical privileges, or where the 1200 Pennsylvania Avenue, NW, inquiries. contractor terminates the contract, Washington DC 20460. VA will request information from the thereby surrendering clinical privileges, California Air Resources Board, National Practitioner Data Bank, in either while under investigation relating Stationary Source Division, Rule accordance with the regulations to possible incompetence or improper Evaluation Section, 1001 ‘‘I’’ Street, published at 45 CFR part 60, subpart C, professional conduct or in return for not Sacramento, CA 95814. as applicable, concerning a physician, conducting such an investigation or Monterey Bay Unified Air Pollution dentist, or other licensed health care proceeding. Control District, 24580 Silver Cloud practitioner as follows: Court, Monterey, CA 93940. (a) At the time a physician, dentist, or (Authority: 38 U.S.C. 5705) FOR FURTHER INFORMATION CONTACT: Al other health care practitioner applies for [FR Doc. 02–9875 Filed 4–22–02; 8:45 am] Petersen, Rulemaking Office (AIR–4), a position at VA Central Office, any of BILLING CODE 8320–01–P U.S. Environmental Protection Agency, its regional offices, or on the medical Region IX; (415) 947–4118. staff, or for clinical privileges at a VA SUPPLEMENTARY INFORMATION: hospital or other health care entity Throughout this document, ‘‘we,’’ ‘‘us’’ operated under the auspice of VA; and ‘‘our’’ refer to EPA. (b) No less often than every 2 years concerning any physician, dentist, or Table of Contents other health care practitioner who is on I. The State’s Submittal
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A. What rules did the State submit? C. EPA recommendations to further I. The State’s Submittal B. Are there other versions of these rules? improve the rules C. What is the purpose of the submitted D. Public comment and final action A. What Rules Did the State Submit? rule revisions? III. Background Information Table 1 lists the rules we are II. EPA’s Evaluation and Action A. Why were these rules submitted? approving with the date that they were A. How is EPA evaluating the rules? IV. Administrative Requirements adopted by the local air agency and B. Do the rules meet the evaluation submitted by the California Air criteria? Resources Board (CARB).
TABLE 1.—SUBMITTED RULES
Local agency Rule # Rule title Adopted Submitted
MBUAPCD .... 418 Transfer of Gasoline into Stationary Storage Containers ...... 12/13/00 05/08/01 MBUAPCD .... 419 Bulk Gasoline Plants and Terminals ...... 12/13/00 05/08/01
On July 20, 2001, this submittal was therefore Rules 418 and 419 are not not think anyone will object to this, so found to meet the completeness criteria required to fulfill RACT requirements. we are finalizing the approval without in 40 CFR Part 51 Appendix V, which Guidance and policy documents that proposing it in advance. However, in must be met before formal EPA review. we used to define specific enforceability the Proposed Rules section of this requirements include the following: Federal Register, we are simultaneously B. Are There Other Versions of These • proposing approval of the same Rules? Requirements for Preparation, Adoption, and Submittal of submitted rules. If we receive adverse We approved into the SIP on February Implementation Plans, U.S. EPA, 40 comments by May 23, 2002, we will 15, 1995 (60 FR 8565) a version of Rule CFR Part 51. publish a timely withdrawal in the 418, adopted on August 25, 1993. We • Issues Relating to VOC Regulation Federal Register to notify the public approved into the SIP on January 17, Cutpoints, Deficiencies, and Deviations; that the direct final approval will not 1997 (62 FR 2597) a version of Rule 419, Clarification to Appendix D of take effect and we will address the adopted on November 23, 1994. November 24,1987 Federal Register comments in a subsequent final action C. What Is the Purpose of the Submitted Notice, (Blue Book), notice of based on the proposal. If we do not Rule Revisions? availability published in the May 25, receive timely adverse comments, the 1988 Federal Register. direct final approvals will be effective The purpose of revisions to Rule 418 • Federal Attainment Plan for the without further notice on June 24, 2002. is to make the rule consistent with the Monterey Bay Region (October 1994). This will incorporate these rules into vapor recovery efficiency required by the federally-enforceable SIP. the CARB for certification of vapor B. Do the Rules Meet the Evaluation recovery equipment used for the transfer Criteria? Please note that if EPA receives of gasoline into stationary storage adverse comment on an amendment, We believe the rules are consistent paragraph, or section of this rule and if containers. with the relevant policy and guidance The purposes of revisions to Rule 419 that provision may be severed from the regarding enforceability and SIP remainder of the rule, EPA may adopt ares to remove group I and II relaxations. definitions, to move the definition of as final those provisions of the rule that The TSD has more information on our are not the subject of an adverse VOC to Rule 101, and to remove an evaluation. obsolete compliance schedule. comment. C. EPA Recommendations to Further III. Background Information II. EPA’s Evaluation and Action Improve the Rules A. Why Were These Rules Submitted? A. How is EPA Evaluating the Rules? The TSD for Rule 419 describes Generally, SIP rules must be additional rule revisions that do not VOCs help produce ground-level enforceable (see section 110(a) of the affect EPA’s current action but are ozone and smog, which harm human CAA), must require Reasonably recommended for the next time the local health and the environment. Section Available Control Technology (RACT) agency modifies the rules. 110(a) of the CAA requires states to for major sources in nonattainment D. Public Comment and Final Action submit regulations that control VOC areas (see section 182(a)(2)(A)), and emissions. Table 2 lists some of the must not relax existing requirements As authorized in section 110(k)(3) of national milestones leading to the (see sections 110(l) and 193). The the CAA, EPA is fully approving the submittal of these local agency VOC MBUAPCD regulates an ozone submitted rules because we believe they rules. attainment area (see 40 CFR part 81), fulfill all relevant requirements. We do
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TABLE 2.—OZONE NONATTAINMENT MILESTONES
Date Event
March 3, 1978 ...... EPA promulgated a list of ozone nonattainment areas under the 1978 Clean Air Act as amended in 1977. 43 FR 8964; 40 CFR 81.305. May 26, 1988 ...... EPA notified Governors that parts of their SIPs were inadequate to attain and maintain the ozone standard and re- quested that they correct the deficiencies (EPA’s SIP-Call). See section 110(a)(2)(H) of the pre-amended Act. November 15, 1990 ...... Clean Air Act Amendments of 1990 were enacted. Pub. L. 101–549, 104 Stat. 2399, codified at 42 U.S.C. 7401– 7671q. May 15, 1991 ...... Section 182(a)(2)(A) requires that ozone nonattainment areas correct deficient RACT rules by this date.
IV. Administrative Requirements Children from Environmental Health for judicial review may be filed, and Under Executive Order 12866 (58 FR Risks and Safety Risks’’ (62 FR 19885, shall not postpone the effectiveness of 51735, October 4, 1993), this action is April 23, 1997), because it is not such rule or action. This action may not not a ‘‘significant regulatory action’’ and economically significant. be challenged later in proceedings to therefore is not subject to review by the In reviewing SIP submissions, EPA’s enforce its requirements. (See section Office of Management and Budget. For role is to approve state choices, 307(b)(2).) this reason, this action is also not provided that they meet the criteria of List of Subjects in 40 CFR Part 52 subject to Executive Order 13211, the CAA. In this context, in the absence of a prior existing requirement for the ‘‘Actions Concerning Regulations That Environmental protection, Air Significantly Affect Energy Supply, State to use voluntary consensus standards (VCS), EPA has no authority pollution control, Incorporation by Distribution, or Use’’ (66 FR 28355, May reference, Intergovernmental relations, 22, 2001). This action merely approves to disapprove a SIP submission for failure to use VCS. It would thus be Ozone, Reporting and recordkeeping state law as meeting federal requirements, Volatile organic requirements and imposes no additional inconsistent with applicable law for compounds. requirements beyond those imposed by EPA, when it reviews a SIP submission, state law. Accordingly, the to use VCS in place of a SIP submission Dated: April 5, 2002. Administrator certifies that this rule that otherwise satisfies the provisions of Laura Yoshii, the CAA. Thus, the requirements of will not have a significant economic Acting Regional Administrator, Region IX. impact on a substantial number of small section 12(d) of the National entities under the Regulatory Flexibility Technology Transfer and Advancement Part 52, chapter I, title 40 of the Code Act (5 U.S.C. 601 et seq.). Because this Act of 1995 (15 U.S.C. 272 note) do not of Federal Regulations is amended as rule approves pre-existing requirements apply. This rule does not impose an follows: under state law and does not impose information collection burden under the any additional enforceable duty beyond provisions of the Paperwork Reduction PART 52—[AMENDED] that required by state law, it does not Act of 1995 (44 U.S.C. 3501 et seq.). contain any unfunded mandate or The Congressional Review Act, 5 1. The authority citation for Part 52 significantly or uniquely affect small U.S.C. section 801 et seq., as added by continues to read as follows: the Small Business Regulatory governments, as described in the Authority: 42 U.S.C. 7401 et seq. Unfunded Mandates Reform Act of 1995 Enforcement Fairness Act of 1996, (Public Law 104–4). generally provides that before a rule Subpart F—California This rule also does not have tribal may take effect, the agency promulgating the rule must submit a implications because it will not have a 2. Section 52.220 is amended by substantial direct effect on one or more rule report, which includes a copy of adding paragraph (c)(284)(i)(A)(2) to Indian tribes, on the relationship the rule, to each House of the Congress read as follows: between the Federal Government and and to the Comptroller General of the Indian tribes, or on the distribution of United States. EPA will submit a report § 52.220 Identification of plan. power and responsibilities between the containing this rule and other required * * * * * Federal Government and Indian tribes, information to the U.S. Senate, the U.S. as specified by Executive Order 13175 House of Representatives, and the (c) * * * (65 FR 67249, November 9, 2000). This Comptroller General of the United (284) * * * action also does not have Federalism States prior to publication of the rule in (i) * * * implications because it does not have the Federal Register. A major rule substantial direct effects on the States, cannot take effect until 60 days after it (A) * * * on the relationship between the national is published in the Federal Register. (2) Rules 418 and 419, adopted on government and the States, or on the This action is not a ‘‘major rule’’ as December 13, 2000. distribution of power and defined by 5 U.S.C. section 804(2). * * * * * responsibilities among the various Under section 307(b)(1) of the CAA, levels of government, as specified in petitions for judicial review of this [FR Doc. 02–9786 Filed 4–22–02; 8:45 am] Executive Order 13132 (64 FR 43255, action must be filed in the United States BILLING CODE 6560–50–P August 10, 1999). This action merely Court of Appeals for the appropriate approves a state rule implementing a circuit by June 24, 2002. Filing a Federal standard, and does not alter the petition for reconsideration by the relationship or the distribution of power Administrator of this final rule does not and responsibilities established in the affect the finality of this rule for the CAA. This rule also is not subject to purposes of judicial review nor does it Executive Order 13045, ‘‘Protection of extend the time within which a petition
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ENVIRONMENTAL PROTECTION Authority: 42 U.S.C. 7401 et seq. between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. AGENCY § 52.220 [Amended] The telephone number is 202–366– 40 CFR Part 52 2. Section 52.220 is amended by 9329. removing paragraph (c)(291). [CA 257–0345; FRL–7174–1] (3) By fax to the Docket Management [FR Doc. 02–9788 Filed 4–22–02; 8:45 am] Facility at 202–493–2251. (4) Electronically through the Web Withdrawal of Direct Final Rule BILLING CODE 6560–50–P Revising the California State Site for the Docket Management System Implementation Plan, El Dorado at http://dms.dot.gov. County Air Pollution Control District You must also mail comments on DEPARTMENT OF TRANSPORTATION collection of information to the Office of AGENCY: Environmental Protection Information and Regulatory Affairs, Coast Guard Agency (EPA). Office of Management and Budget, 725 17th Street NW, Washington, DC 20503, ACTION: Withdrawal of direct final rule. 46 CFR Part 45 ATTN: Desk Officer, U.S. Coast Guard. SUMMARY: EPA is withdrawing direct [USCG–1998–4623] The Docket Management Facility final approval of revisions to the maintains the public docket for this California State Implementation Plan RIN 2115–AF38 rulemaking. Comments and material (SIP) that were published on March 1, Limited Service Domestic Voyage Load received from the public, as well as 2002 (67 FR 9403). Lines for River Barges on Lake documents mentioned in this preamble DATES: This direct final rule is Michigan as being available in the docket, will withdrawn as of April 23, 2002. become part of this docket and will be FOR FURTHER INFORMATION CONTACT: AGENCY: Coast Guard, DOT. available for inspection or copying at Roger Kohn, Permits Office (Air-3), U.S. ACTION: Interim rule with request for room PL–401 on the Plaza level of the Environmental Protection Agency, comments. Nassif Building, 400 Seventh Street Region IX, (415) 972–3973. SW., Washington, DC, between 9 a.m. SUMMARY: The Coast Guard is and 5 p.m., Monday through Friday, SUPPLEMENTARY INFORMATION: On March establishing a special load line regime except Federal holidays. You may also 1, 2002 (67 FR 9424), EPA proposed to for certain unmanned dry cargo river find this docket on the Internet at http:/ approve El Dorado County Air Pollution barges to be exempted from the normal /dms.dot.gov. Control District (EDCAPCD) Rule 523, Great Lakes load line assignment while New Source Review, into the California FOR FURTHER INFORMATION CONTACT: If operating on Lake Michigan. Depending State Implementation Plan (SIP). you have questions on this rule, call upon the route, eligible barges may On the same day (67 FR 9403), EPA Thomas Jordan, Office of Marine Safety obtain a limited domestic service load also published a direct final rule and Environmental Protection (G–MSE– line assignment or be conditionally approving these rules into the SIP. The 2), telephone 202–267–2988. If you have exempted from any load line assignment proposed action provided a 30 public questions on viewing or submitting at all. This special load line regime will comment period and explained that if material to the docket, call Dorothy allow non-hazardous cargoes originating we received adverse comments, we Beard, Chief, Dockets, Department of at inland river ports to be directly would withdraw the relevant direct Transportation, telephone 202–366– transported as far as Milwaukee and final action. 5149. Muskegon by river barge. We did receive adverse comments, SUPPLEMENTARY INFORMATION: and are therefore withdrawing the direct DATES: Effective May 23, 2002, except Request for Comments final approval of EDCAPCD Rule 523. for §§ 45.181 and 45.183 which contain We are not opening an additional information collection requirements that We encourage you to participate in comment period. We intend to finalize have not been approved by OMB. We this rulemaking by submitting action on these rules based on the will publish a document in the Federal comments and related material. If you March 1, 2002 proposal. Register announcing the effective date do so, please include your name and of these two sections. Comments and address, identify the docket number for List of Subjects in 40 CFR Part 52 related material must reach the Docket this rulemaking (USCG 1998–4623), Environmental protection, Air Management Facility on or before indicate the specific section of this pollution control, Incorporation by October 23, 2002. Comments sent to the document to which each comment reference, Intergovernmental relations, Office of Management and Budget applies, and give the reason for each Nitrogen dioxide, Ozone, Reporting and (OMB) on collection of information comment. You may submit your recordkeeping requirements, Volatile must reach OMB on or before October comments and material by mail, hand organic compounds. 23, 2002. delivery, fax, or electronic means to the Dated: April 11, 2002. ADDRESSES: To make sure that your Docket Management Facility at the ADDRESSES Nora L. McGee, comments and related material are not address under ; but please entered more than once in the docket, submit your comments and material by Acting Regional Administrator, Region IX. please submit them by only one of the only one means. If you submit them by Subpart F of Part 52, Chapter I, Title following means: mail or hand delivery, submit them in 40 of the Code of Federal Regulations is (1) By mail to the Docket Management an unbound format, no larger than 81⁄2 amended as follows: Facility (USCG–1998–4623), U.S. by 11 inches, suitable for copying and Department of Transportation, room PL– electronic filing. If you submit them by PART 52—[AMENDED] 401, 400 Seventh Street SW., mail and would like to know they Subpart F—California Washington, DC 20590–0001. reached the Facility, please enclose a (2) By delivery to room PL–401 on the stamped, self-addressed postcard or 1. The authority citation for Part 52 Plaza level of the Nassif Building, 400 envelope. We will consider all continues to read as follows: Seventh Street SW., Washington, DC, comments and material received during
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the comment period. We may change this has been an exemption for certain Risk Assessment of the Milwaukee this rule in view of them. river barges operating between Chicago Route Public Meeting and Burns Harbor (as specified in 46 The risk assessment group was made CFR 45.171 through 45.177). We do not plan to hold a public up of interested parties, representing meeting. But you may submit a request In January 1991, the Port of towboat and barge operators, port for one to the Docket Management Milwaukee approached the Coast Guard authorities, the Coast Guard, U.S. Maritime Administration (MarAd), and Facility at the address under ADDRESSES to explore the possibility of establishing explaining why one would be a relaxed domestic load line that would port-related businesses (terminal beneficial. If we determine that one allow river barges to operate along the operators, shippers, etc.). The group met would aid this rulemaking, we will hold western shore of Lake Michigan twice (September 21, 2000 and one at a time and place announced by between Chicago and Milwaukee. Later November 9, 2000) to discuss various a later notice in the Federal Register. that year, a barge company made a issues. Additional comments were similar request for an eastern Lake submitted to the group. These Regulatory Information Michigan route between Chicago and documents have been compiled together On November 2, 1998, we published Muskegon, MI. The motivation for these into a report, ‘‘Risk Assessment for River Barges Operating between Chicago, IL a notice of proposed rulemaking route requests was economic: river and Milwaukee, WI’’, dated September, (NPRM) entitled ‘‘Limited Service barges offer relatively low costs per ton- 2001, which is available in the docket. Domestic Voyage Load Lines for River mile to move cargo and can therefore Barges on Lake Michigan’’ in the Because the cost of the ABS-assigned deliver cargoes to the Lake ports less load line was perceived to be a major Federal Register (63 FR 58679). On expensively. December 28, 1998, we published a obstacle, the group focused on how that follow-up notice that extended the The American Bureau of Shipping cost could be reduced or eliminated in comment period to March 4, 1999 (63 (ABS), the Coast Guard, and industry ways such as ‘‘self-certification’’ by a FR 71411). Altogether, we received 51 worked together to determine the barge owner (similar to Burns Harbor letters in response to the proposed rule. appropriate operational restrictions and operators). Several important findings No public hearing was requested and other requirements that would allow were made: none was held. river barges to safely venture onto Lake (1) It is standard practice for the barge On September 21, 1992 (57 FR 43479), Michigan. In 1992, a special limited building shipyards to build all new a notice was published in the Federal service domestic voyage load line barges in accordance with ABS River Register establishing a limited service regime was implemented for the Rules; domestic load line route on western Milwaukee route. A similar regime was (2) New barges are not likely to Lake Michigan between Chicago, IL established for the Muskegon route in seriously deteriorate during the first 7 to (Calumet Harbor) and Milwaukee, WI. 1996. 10 years in service; (3) Marine weather forecasting for the On March 31, 1995 (60 FR 16693), a Initially, 30 barges obtained the notice was published in the Federal Great Lakes has improved since the special load line and began service Register establishing a second route Milwaukee route was first established in between Chicago and Milwaukee. From along the east side of Lake Michigan 1992; and 1993 to 1996, more than 300 barge trips between Chicago and St. Joseph, MI. It (4) The viability of Waukegan and also imposed a new requirement that were made, delivering about 502,000 Kenosha as ports-of-refuge were the lead barge in the tow had to have a tons of grain, animal feed, steel, affirmed by a towboat operator with raked bow, but allowed the initial load machinery, graphite, aggregate, and extensive experience on that route. line survey of barges which were less other materials. However, the cost and On the basis of these findings, the than 10 years old to be conducted afloat. logistics of managing a relatively small group recommended that relatively new On September 28, 1995 (60 FR 50234), number of load lined barges over a large barges (less than 7 or 10 years of age) be a notice was published in the Federal river system worked against the exempted from the load line Register revoking the raked bow economics of this service and, when the requirement. original barges were sold in 1996, the requirement. Discussion of Comments and Changes On August 26, 1996 (61 FR 43804), a new owner discontinued the Milwaukee notice was published in the Federal service. Over the subsequent years, no The 51 responses to the NPRM were Register extending the St. Joseph route other barge operators obtained this submitted by 42 commenters (some of further up the east side of Lake special load line. whom submitted more than one response). Of those commenters, 29 Michigan to Muskegon, MI. Meanwhile, the Coast Guard had supported the overall proposal, but 17 Background and Purpose moved ahead with plans to formally were specifically concerned about the Before the establishment of this incorporate the special load line regime adverse impact of the proposed special load line regime for Lake into Federal regulations, which regulations on present Burns Harbor Michigan, barge cargoes originating at happened in 1998 when a notice of operations. inland river ports and destined for Lake proposed rulemaking (NPRM) was The two major issues discussed by the Michigan ports had to be transferred to published (63 FR 58679, Nov. 2, 1998). commenters are as follows: a Great Lakes load lined vessel at In its response to the NPRM, industry High cost of load line assignment: Chicago (Calumet Harbor). This argued that the cost of obtaining the Most commenters on the load line transshipment was necessary because special load line was still too requirement alleged that the ABS costs the existing load line regulations did not prohibitive, which discouraged barge are excessively high, and that these allow vessels onto the Great Lakes operators from entering this service. costs are the reason why barge service without a Great Lakes load line, and Industry representatives requested that a to Milwaukee was discontinued in 1996 river barges typically do not meet all the risk analysis be conducted to determine and has not been re-established. Several requirements for unrestricted service on if a load line exemption could be suggestions were offered on how to the Great Lakes. The only exception to developed for the Milwaukee route. lower costs to barge owners: regulating
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ABS fees, exempting younger barges, As a result of the comments discussed added to enhance Coast Guard allowing a limited number of exempted above, as well as further internal review oversight: paragraph (a) now makes it voyages each year, Coast Guard by the Coast Guard, the following clear that barges are to be registered inspection (on a cost-reimbursable changes have been made to the prior to venturing onto Lake Michigan; basis), and ‘‘self- certification’’ under regulations as proposed in the NPRM: paragraph (b) now includes a Coast Guard oversight. Editorial changes: We have made requirement that the exempted route As a result of a detailed risk review editorial changes throughout to improve (Burns Harbor and/or Milwaukee) be on the Milwaukee route (discussed in clarity, intent, and the plain language identified on the registration; paragraph the Risk Assessment section in this writing of the regulations. (e) clarifies the conditions under which notice), the Coast Guard has decided to Section 45.15 Exemptions: Paragraph the registration becomes invalid; and conditionally exempt barges on that (d) has been revised to reflect that paragraph (f) reiterates that the Coast route from load line assignment; instead subpart E provides for load line Guard is to be notified if a registered we will accept self-certification by the exemptions for certain routes on Lake barge is withdrawn from exempted owner or operator. Barges operating on Michigan. This paragraph was not service. that route must be registered with the originally proposed for revision in the Section 45.185 Tow limitations: USCG Marine Safety Office in Chicago NPRM. However, it is appropriate to Paragraph (b) has been revised to make (just like those on the Burns Harbor revise it since it previously referred only sure that Burns Harbor is not included route), meet certain design to the Burns Harbor route exemption. in the 3-barge limit. requirements, and cannot be more than Section 45.171 Purpose: New Section 45.187 Weather limitations: 10 years old. paragraph (b) has been inserted New paragraph (a) has been inserted to Because such a risk review has not yet reiterating that barges on Lake Michigan restore the original ‘‘fair weather only’’ been conducted for the St. Joseph and are required to have a Great Lakes load limit for the Burns Harbor route, and Muskegon routes, we are not exempting line except as provided in this subpart. paragraph (b) has been revised to those routes at this time. River barges This is to ensure that operators specify the Milwaukee, St. Joseph, and operating on those routes must still understand that non-compliant barges Muskegon routes. obtain the limited service domestic (and operators) are in violation of load Section 45.191 Pre-departure voyage load line assignment from ABS. line regulations and thereby subject to requirements: Paragraph (d) has been Adverse impact of proposed penalties. revised to include logging of barge regulations on the Burns Harbor route: Table 45.171 Load Line freeboards. Because tows to St. Joseph and Requirements for Dry Cargo River Section 45.193 Towboat power Muskegon followed the same route as Barges Operating on Lake Michigan: requirements: Paragraph (b) has been tows to Burns Harbor, the NPRM This table has been revised to reflect revised to remove the Burns Harbor attempted to consolidate and harmonize exemption of the Milwaukee route, and route. the requirements for these three routes changes to the Burns Harbor as much as possible. As a result, the requirements with respect to weather Coast Guard Oversight and Concerns Burns Harbor route would become conditions, tow size limits, and A major provision in this interim final subject to several requirements that horsepower requirements (as discussed rule is to conditionally exempt the were not previously required (such as elsewhere in this notice). Milwaukee route from load line weather restrictions, tow size limits, and Section 45.173 Eligible barges: New assignment. It is anticipated that this horsepower requirements). Many paragraphs (b) and (c) have been will greatly encourage barge and commenters familiar with the Burns inserted, adding requirements that the towboat operators to establish service on Harbor tow operations stated that these barges be designed and built according this route. However, it is not possible to requirements would adversely impact to ABS River Rules, and that their predict how many barges will actually the route, particularly the towing limit length-to-depth ratio must be less than become involved, although comments to of three barges. They pointed out that 22. Actually, these are not truly new the docket suggest that a vigorous trade tow sizes for Burns Harbor are decided requirements: they have been required volume could develop. on other factors (forecast, loaded/ in 46 CFR 45.173 since the Burns Accordingly, the Coast Guard will be unloaded condition of barges, available Harbor exemption was established in monitoring activity on this route with towboat power, etc.), and typically 1985, and have been reiterated in each three particular concerns in mind: could be much more than three barges. of the Federal Register notices (1) Industry compliance with the The proposed 3-barge limit would establishing the Milwaukee, St. Joseph, conditions of the load line exemption therefore have a serious impact, and Muskegon routes. However, due to (such as barge registration, pre- resulting in more voyages and increased an editorial oversight, they were departure inspections, logbook entries, fuel and labor costs. The commenters inadvertently left out of the NPRM and etc); stated that Burns Harbor is a short-haul are now being properly included. New (2) The material condition of the route with nearly 30 years of safe paragraph (d) has been added to this barges. The regulations herein are based operational history, and that there is no section, limiting the barges on the on the supposition that freshwater basis for imposing stricter requirements Milwaukee route to less than 10 years barges up to 10 years of age are not that are intended for the more-exposed old; this is one of the load line likely to deteriorate severely enough to long-haul routes. exemption conditions for that route. render them unsuitable for Lake The Coast Guard accepts these points. Section 45.181 Load line exemption Michigan voyages. However, some It was not our intent to upset well- requirements for the Burns Harbor and comments in the risk analysis suggested established practices on the Burns Milwaukee routes: This section has been there be one of the following age limits: Harbor route; it was merely to revised to include Milwaukee as a load not more than 5 years old, or not more harmonize requirements as much as line-exempted route, and to make it than 7 years old; and possible. Therefore, proposed clear that this is a conditional (3) The number of tows actually on regulations have been revised to exemption. Some of the paragraphs have Lake Michigan at any given time, with preserve the Burns Harbor requirements been titled and editorially re-organized. respect to the capacity of the ports-of- as currently in effect. Some new requirements have been refuge to accommodate them should
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weather conditions deteriorate opportunities to move certain cargoes degree this rule would economically unexpectedly. For the time being, it is on Lake Michigan. The economic affect it. not expected that this will be a problem impact of this rule on the local region Assistance for Small Entities and therefore the regulations herein do is expected to be beneficial, since these not require any pre-departure regulations should allow certain cargoes Under section 213(a) of the Small notification to the Coast Guard. to be transported at a lower cost-per-ton- Business Regulatory Enforcement However, successful growth of cargo mile than by the overland modes Fairness Act of 1996 (Public Law 104– movements on this route may presently used. Also, these new 121), we want to assist small entities in eventually require some program of tow provisions offer increased flexibility to understanding this rule so that they can coordination. the river barge operators that choose to better evaluate its effects on them and Therefore, the Coast Guard reserves operate on the Milwaukee route, the participate in the rulemaking. If the rule its prerogative to revise these conditionally exempted route from the would affect your small business, regulations if we determine that safety previously required limited service organization, or governmental is being seriously compromised. domestic voyage load line assignment. jurisdiction and you have questions concerning its provisions or options for Regulatory Evaluation Small Entities compliance, please consult Thomas This rule is not a ‘‘significant Under the Regulatory Flexibility Act Jordan, Office of Marine Safety and regulatory action’’ under section 3(f) of (5 U.S.C. 601–612), we have considered Environmental Protection (G-MSE–2), Executive Order 12866, Regulatory whether this rule would have a telephone (202) 267–2988. Planning and Review, and does not significant economic impact on a Small businesses may send comments require an assessment of potential costs substantial number of small entities. on the actions of Federal employees and benefits under section 6(a)(3) of that The term ‘‘small entities’’ comprises who enforce, or otherwise determine Order. It has not been reviewed by the small businesses, not-for-profit compliance with, Federal regulations to Office of Management and Budget under organizations that are independently the Small Business and Agriculture that Order. It is not ‘‘significant’’ under owned and operated and are not Regulatory Enforcement Ombudsman the regulatory policies and procedures dominant in their fields, and and the Regional Small Business of the Department of Transportation governmental jurisdictions with Regulatory Fairness Boards. The (DOT) (44 FR 11040, February 26, l979). populations of less than 50,000. We expect the economic impact of Ombudsman evaluates these actions this rule to be so minimal that a full This interim final rule affects the annually and rates each agency’s Regulatory Evaluation under paragraph unmanned dry cargo river barge responsiveness to small business. If you 10e of the regulatory policies and operators who choose to obtain a wish to comment on actions by procedures of DOT is unnecessary. limited domestic service load line employees of the Coast Guard, call 1– This interim rule is revising existing assignment or a conditional load line 888–REG–FAIR (1–888–734–3247). exemption while operating on certain load line regulations in 46 CFR 45.15, Collection of Information and 46 CFR 45.171 through 45.177, routes on Lake Michigan. pertaining to certain dry cargo river There are no mandatory costs to small This rule calls for a collection of barges operating on Lake Michigan. entities associated with this rule. information under the Paperwork Under this rule, eligible barges may Furthermore, this rule conditionally Reduction Act of 1995 (44 U.S.C. 3501– qualify for either a limited domestic exempts qualified barges operating on 3520). As defined in 5 CFR 1320.3(c), service voyage load line (Burns Harbor Milwaukee route from the previously ‘‘collection of information’’ comprises route, St. Joseph route, and Muskegon proposed limited service domestic reporting, recordkeeping, monitoring, route), or a conditional load line voyage load line assignment. The posting, labeling, and other, similar exemption (Milwaukee route). There are estimated burden of preparing the actions. The title and description of the no mandatory costs associated with this submittal to the Coast Guard for information collections, a description of rule. exempting barges on the Milwaukee those who must collect the information, The requirements in this rulemaking route from load line assignment is and an estimate of the total annual are less stringent than the requirements minimal and discussed further under burden follow. The estimate covers the for a normal Great Lakes load line, and ‘‘Collection of Information’’ in this time for reviewing instructions, serve as cheaper alternatives for preamble. Companies will tend to searching existing sources of data, qualified barges. This regulatory action choose to obtain a limited domestic gathering and maintaining the data imposes costs only on river barge service load line assignment or needed, and completing and reviewing operators who voluntarily decide to conditional load line exemptions while the collection. obtain the particular load lines as operating on Lake Michigan only if they The regulations resulting from this alternatives to the normal Great Lakes expect its costs to be offset by increased rulemaking are within 46 CFR part 45, load line. Furthermore, this rule reduces profits. which pertains to load line regulations the voluntary cost by conditionally Therefore, the Coast Guard certifies for the Great Lakes. The OMB control exempting barges operating on the under 5 U.S.C. 605(b) that this rule will number for 46 CFR part 45 is 2115– Milwaukee route from the limited not have a significant economic impact 0043. service domestic voyage load line on a substantial number of small This rulemaking will modify the assignment. entities. If you think that your business, population of vessels subject to The estimated burden of preparing the organization, or governmental collection of information by creating a submittal for exempting barges on the jurisdiction qualifies as a small entity business opportunity for additional Milwaukee route from load line and that this rule will have a significant vessels to voluntarily enter this service. assignment is minimal and discussed economic impact on it, please submit a The NPRM for this rulemaking further in the ‘‘Collection of comment to the Docket Management specifically solicited comments on the Information’’ section in this preamble. Facility at the address under ADDRESSES. collection of information burden; The rule provides qualified barge In your comment, explain why you however, none of the responses operators with more commercial think it qualifies and how and to what included any comments on this subject.
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The NPRM originally estimated that requirements for the Burns Harbor and approximately 5 minutes. Under these 12 barges per year would seek load line Milwaukee route and by 35 minutes assumptions, the annual hour burden to assignment, at a burden of 9.33 hours (0.583 hours) for the load line respondents is the following: Hour per vessel (112 hours total per year). requirements for the St. Joseph and Burden: 0.42 hours = (0.0833 hour) The regulations herein require a much Muskegon routes. times (5 barges times 1 certificate). simpler information submittal to the Estimate of Totel Annual Burden: The The total hour burden is: 63 hours = Coast Guard, than that proposed in the existing OMB-approved collection total 60 hours plus 2.5 hours plus 0.50 hours. NPRM. As a result of the estimated annual burden is 1,916 hours. This rule As required by the Paperwork burden hour reduction, a larger number will increase the total annual burden by Reduction Act of 1995 (44 U.S.C. of barges are likely to enter this service 63 hours to a total of 1,979 hours. 3507(d)), we have submitted a copy of (35 barges, instead of the original 12 (a) Barges operating on the Burns this rule to the Office of Management barges). Harbor and Milwaukee routes may be and Budget (OMB) for its review of the The revised Collection of Information conditionally exempted from load line collection of information. estimate is as follows: assignment if the owner registers the We ask for public comment on the Title: Plan Approval and Records for barge (in writing) with the Officer in collection of information to help us Load Lines Charge, Marine Inspection (OCMI), U.S. determine how useful the information OMB Control Number: 2115–0043. Coast Guard Marine Safety Office. The is; whether it can help us perform our Summary of the Collection of registration may be faxed to the OCMI functions better; whether it is readily Information: This rule contains in advance, with the original following available elsewhere; how accurate our collection of information requirements by mail. The registration will be kept on estimate of the burden of collection is; for 46 CFR 45.181 and 45.183 (load line file. how valid our methods for determining regulations for vessels operating on the The owners for barges operating on burden are; how we can improve the Great Lakes). the Burns Harbor and Milwaukee routes quality, usefulness, and clarity of the Need for Information: For the Coast have to register the barge (in writing) information; and how we can minimize Guard to carry out its load line with the OCMI, U.S. Coast Guard the burden of collection. administration responsibilities for Marine Safety Office, only once, prior to vessels operating on the Great Lakes. its first voyage onto Lake Michigan. The If you submit comments on the Proposed Use of Information: For the registration may be faxed to the OCMI collection of information, submit them Coast Guard to verify a barge’s in advance, with the original following both to OMB and to the Docket compliance/non-compliance with the by mail. The registration will be kept on Management Facility where indicated regulations. file. The registration is valid until the under ADDRESSES, by the date under Description of the Respondents: tenth anniversary of the delivery date DATES. Owners of dry cargo river barges (for Milwaukee route), or the barge no You need not respond to a collection voluntarily seeking to operate on certain longer is fit for this service (due to of information unless it displays a Lake Michigan routes; they must submit damage, or the barge changes currently valid control number from certain information about each barge in ownership). The burden associated with OMB. Before the requirements for this order for it to be eligible for a limited the renewal of the registration is collection of information become domestic service load line assignment or minimal. effective, we will publish a notice in the a conditional exemption from any load The Coast Guard estimates Federal Register of OMB’s decision to line assignment at all. approximately 30 river barges per year approve, modify, or disapprove the Number op Respondents: The existing would seek a conditional exemption collection. OMB-approved collection number of from any load line assignment at all. Federalism respondents is 3,410. This rule will We, also, estimate about 2 hours per increase the number of respondents by barge to gather required information, A rule has implications for federalism 35 to a total of 3,445. We estimated that compile it into a single document and under Executive Order 13132, 30 barges will apply for a conditional send it to the Coast Guard. Under these Federalism, if it has a substantial direct exemption and 5 barges will apply for assumptions, the annual hour burden to effect on State or local governments and a limited domestic service load line. the respondents is the following: Hour would either preempt State law or Frequency of Response: The existing Burden: 60 hours = (2 hours/barge) × (30 impose a substantial direct cost of OMB-approved collection annual barges per year). compliance on them. It is well settled number of responses is 20,460. This rule (b) Barges operating on the St. Joseph that States may not regulate in will increase the number of responses and Muskegon routes are required to categories reserved for regulation by the by 35 to a total of 20,495. The owners have a limited-service, domestic voyage Coast Guard. It is also well settled, now, of dry cargo river barges need to load line certificate. The Coast Guard that all of the categories covered in 46 respond only one time per barge for the estimates approximately 5 river barges U.S.C. 3306, 3703, 7101, and 8101 conditional exemption. The initial load per year would seek a limited domestic (design, construction, alteration, repair, line certificate for barges with limited load line assignment. The initial load maintenance, operation, equipping, domestic service load line is to be line certificate is to be issued for a term personnel qualification, and manning of issued for a term of 5 years, or until the of 5 years, or until the barge reaches 10 vessels), as well as the reporting of barge reaches 10 years of age, whichever years of age, whichever occurs first. casualties and any other category in occurs first. We assume it takes approximately 30 which Congress intended the Coast Burden of Response: The existing minutes to complete an initial survey Guard to be the sole source of a vessel’s OMB-approved collection burden of application letter. obligations, are within the field response is 15 minutes (0.25 hours) for Under these assumptions, the annual foreclosed from regulation by the States. existing vessels with load lines and 155 hour burden to the respondents is the (See the decision of the Supreme Court minutes (for new vessels with load lines following: Hour Burden: 2.5 hours = (0.5 in the consolidated cases of United (2.583 hours). This rule will increase the hours/barge) × (5 barges per year). States v. Locke and Intertanko v. Locke, burden of response by 120 minutes (2 Furthermore, drafting the load line 529 U.S. 89, 120 S.Ct. 1135 (March 6, hours) for the load line exemption certificate is assumed to take 2000).)
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This rulemaking concerns load line Energy Effects § 45.15 Exemptions. assignments for vessels under U.S. * * * * * jurisdiction. This is a category in which We have analyzed this rule under (d) Unmanned dry cargo river barges Congress intended the Coast Guard to be Executive Order 13211, Actions carrying non-hazardous cargoes on the sole source of a vessel’s obligations. Concerning Regulations That certain routes on Lake Michigan may be Because the States may not regulate Significantly Affect Energy Supply, exempted from load line requirements within this category, preemption under Distribution, or Use. We have in accordance with the conditions Executive Order 13132 is not an issue. determined that it is not a ‘‘significant energy action’’ under that order because specified in subpart E of this part. Unfunded Mandates Reform Act it is not a ‘‘significant regulatory action’’ 3. Revise subpart E to read as follows: The Unfunded Mandates Reform Act under Executive Order 12866 and is not of 1995 (2 U.S.C. 1531–1538) requires likely to have a significant adverse effect Subpart E—Unmanned River Barges on Federal agencies to assess the effects of on the supply, distribution, or use of Lake Michigan Routes their discretionary regulatory actions. In energy. It has not been designated by the Sec. particular, the Act addresses actions Administrator of the Office of 45.171 Purpose. that may result in the expenditure by a Information and Regulatory Affairs as a 45.173 Eligible barges. State, local, or tribal government, in the significant energy action. Therefore, it 45.175 Applicable routes. aggregate, or by the private sector of does not require a Statement of Energy 45.177 Freeboard requirements. $100,000,000 or more in any one year. Effects under Executive Order 13211. 45.179 Cargo limitations. Though this rule will not result in such 45.181 Load line exemption requirements Environment an expenditure, the effects of this rule for the Burns Harbor and Milwaukee routes. are discussed elsewhere in this We have considered the preamble. 45.183 Load line requirements for the St. environmental impact of this rule and Joseph and Muskegon routes. Taking of Private Property concluded that, under figure 2–1, 45.185 Tow limitations. paragraphs (34)(d) and (e), of 45.187 Weather limitations. This rule will not effect a taking of Commandant Instruction M16475.lD, private property or otherwise have 45.191 Pre-departure requirements. this rule is categorically excluded from 45.193 Towboat power requirements. taking implications under Executive further environmental documentation. 45.195 Additional equipment requirements Order 12630, Governmental Actions and Exclusion under paragraph (34)(d) for the Muskegon route. Interference with Constitutionally applies because this rule pertains to 45.197 Operational plan requirements for Protected Property Rights. regulations concerning inspection of the Muskegon route. Civil Justice Reform vessels (i.e., load line requirements). Exclusion under paragraph (34)(e) Subpart E—Unmanned River Barges This rule meets applicable standards on Lake Michigan Routes in sections 3(a) and 3(b)(2) of Executive applies because this rule pertains to Order 12988, Civil Justice Reform, to regulations concerning carriage § 45.171 Purpose. minimize litigation, eliminate requirements (i.e., cargoes are limited to (a) This subpart establishes a special ambiguity, and reduce burden. dry, non-hazardous materials). Therefore, this action will not result in load line regime under which certain Protection of Children substantial change to existing unmanned, river-service, dry-cargo We have analyzed this rule under environmental conditions. A barges may be exempted from the Executive Order 13045, Protection of ‘‘Categorical Exclusion Determination’’ normal Great Lakes load line Children from Environmental Health is available in the docket where requirements while operating on certain Risks and Safety Risks. This rule is not indicated under ADDRESSES. Lake Michigan routes. Depending upon the route, the barge may only need a an economically significant rule and List of Subjects in 46 CFR Part 45 does not create an environmental risk to limited service domestic voyage load health or risk to safety that may Great Lakes, Reporting and line, or may be conditionally exempted disproportionately affect children. recordkeeping requirements, Vessels. from load line assignment. Indian Tribal Governments For the reasons set out in the (b) Except as provided in this subpart, barges operating on Lake Michigan must This rule does not have tribal preamble, the Coast Guard amends 46 CFR part 45 as follows: have either an international load line implications under Executive Order assignment issued in accordance with 13175, Consultation and Coordination PART 45—GREAT LAKES LOAD LINES the International Convention on Load with Indian Tribal Governments, Lines, 1966, as amended, or a Great because it does not have a substantial 1. The authority citation for part 45 is Lakes load line assignment issued in direct effect on one or more Indian revised to read as follows: accordance with the requirements of tribes, on the relationship between the this part. Federal Government and Indian tribes, Authority: 46 U.S.C. 5104, 5108; 49 CFR or on the distribution of power and 1.46. (c) The requirements of this subpart responsibilities between the Federal 2. In § 45.15, revise paragraph (d) to are summarized in Table 45.171: Government and Indian tribes. read as follows: BILLING CODE 4910–15–U
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BILLING CODE 4910–15–C
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§ 45.173 Eligible barges. (b) The registration must include the surveys under § 42.09–40 of this chapter Only barges meeting the following following information: are required. requirements are eligible for the special (1) Barge name and official number (2) At the request of the barge owner, load line regime under this subpart: (or other identification number); the initial load line survey may be (a) Unmanned, river service, dry-cargo (2) Owner and operator (points-of- conducted with the barge afloat if the barges; contact, company addresses and following conditions are met: (b) Barges that have been designed telephone numbers); (i) The barge is less than 10 years old; and built to at least the minimum (3) Service route (Milwaukee and/or (ii) The draft during the survey does scantlings of the American Bureau of Burns Harbor); not exceed 15 inches (380 millimeters); (iii) The barge is empty and Shipping River Rules which were in (4) Design type (covered/uncovered thoroughly cleaned of all debris, effect at the time of construction; hopper, deck, etc.); excessive rust, scale, mud, and water. (c) Barges with a length-to-depth ratio (5) External dimensions; All internal structure must be accessible less than 22; and (6) Types of cargo; and (7) Place built and original delivery for inspection; (d) Barges on the Milwaukee route (iv) Gaugings are taken to the extent must not be more than 10 years old. date. (c) The registration must include a necessary to verify that the scantlings § 45.175 Applicable routes. statement certifying that: are in accordance with approved This subpart applies to the following (1) The barge has been designed and drawings; routes on Lake Michigan, between built to at least the minimum scantlings (v) The hull plating (bottom and Chicago (Calumet Harbor), IL, and— of the ABS River Rules which were in sides) and stiffeners below the light waterline are closely examined (a) Milwaukee, WI (the ‘‘Milwaukee effect at the time of construction; and internally. If the surveyor determines route’’); (2) The owner or operator agrees to that sufficient cause exists, the surveyor (b) Burns Harbor, IN (the ‘‘Burns maintain the barge in serviceable may require that the barge be drydocked Harbor route’’); condition and comply with the or hauled out and further external (c) St. Joseph, MI (the ‘‘St. Joseph applicable provisions of 46 CFR part 45, examination conducted; and route’’); and subpart E. (d) Expiration. Registration is valid (vi) The initial load line certificate is (d) Muskegon, MI (the ‘‘Muskegon to be issued for a term of 5 years or until route’’). only until the earliest of the following events: the barge reaches 10 years of age, § 45.177 Freeboard requirements. (1) The tenth anniversary of the whichever occurs first. Once this (a) All barges must have a minimum delivery date (for barges on the certificate expires, the barge must be freeboard of 24 inches (610 mm). Milwaukee route), drydocked or hauled out and be fully (b) Additionally, open hopper barges (2) The barge no longer is fit for this examined internally and externally. must have a combined freeboard plus service (due to damage), or § 45.185 Tow limitations. (3) The barge changes ownership or cargo box coaming height of at least 54 (a) Barges must not be manned. operators (registration is not transferable inches (1,372 mm). (b) No more than three barges per tow to new owners or operators; the barge on the Milwaukee, St. Joseph, and § 45.179 Cargo limitations. must be re-registered if it is to continue Muskegon routes. (a) Only dry cargoes may be carried. in Lake Michigan service). (c) Barges must not be more than 5 Liquid cargoes, even in drums or tank (e) Notification. The owner or nautical miles from shore. containers, may not be carried. operator of an exempted barge must (b) Hazardous materials, as defined in notify the OCMI of the transfer of § 45.187 Weather limitations. part 148 of this chapter and 49 CFR ownership or change of operator, (a) Tows on the Burns Harbor route chapter 1, subchapter C, may not be withdrawal from Lake Michigan service must operate during fair weather carried. (due to damage, age, or other conditions only. circumstances), or other disposition of (b) The weather limits (ice conditions, § 45.181 Load line exemption the barge. requirements for the Burns Harbor and wave height, and sustained winds) for the Milwaukee, St. Joseph, and Milwaukee routes. § 45.183 Load line requirements for the St. Muskegon routes are specified in Barges operating on the Burns Harbor Joseph and Muskegon routes. § 45.171, table 45.171. and Milwaukee routes may be (a) Load line certificate. (1) The load (c) If weather conditions are expected conditionally exempted from load line line issued under this subpart must be to exceed these limits at any time during assignment provided that the following a limited-service, domestic-voyage load the voyage, the tow must not leave requirements are met: line. harbor or, if already underway, must (a) Registration. Before the barge’s (2) Except as provided under proceed to the nearest appropriate first voyage onto Lake Michigan, the paragraph (b)(2)(vi) of this section, the harbor of safe refuge. owner or operator must register the term of the certificate is five years. barge (in writing) with the Officer in (3) The load line certificate is valid for § 45.191 Pre-departure requirements. Charge, Marine Inspection (OCMI), U.S. the St. Joseph and Muskegon routes, and Before beginning each voyage, the Coast Guard Marine Safety Office, 215 intermediate ports. However, operators towing vessel master must conduct the W. 83rd St—Suite D, Burr Ridge, IL, must comply with the route-specific following: 60521. The registration may be faxed to requirements on the certificate. (a) Weather forecast. Determine the the OCMI in advance (at (630) 986– (4) The freeboard assignment, marine weather forecast along the 2120), with the original following by operational limitations, and towboat planned route, and contact the dock mail. The registration may be in any requirements of this subpart must operator at the destination port to get an form, but must be signed by the owner appear on the certificate. update on local weather conditions. or operator. No load line exemption (b) Conditions of assignment. (1) An (b) Inspection. Inspect each barge of certificate will be returned. However, initial load line survey under § 42.09–25 the tow to ensure that they meet the the registration will be kept on file. of this chapter and subsequent annual following requirements:
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(1) A valid load line certificate, if § 45.197 Operational plan requirements for and Order, MM Docket No. 00–138, required, is on board; the Muskegon route. adopted April 17, 2002, and released (2) The barge is not loaded deeper Towing vessels on the Muskegon April 22, 2002. The full text of this than permitted; route must have aboard an operational document is available for public (3) The deck and side shell plating are plan that is available for ready reference inspection and copying during regular free of visible holes, fractures, or serious by the master. The plan must include business hours in the FCC Reference indentations, as well as damage that the following: Information Center, Portals II, 445 12th would be considered in excess of (a) The cargo limitations, the general Street, SW., Room CY-A257, normal wear; operational requirements, and the Washington, DC. This document may (4) The cargo box side and end special operational requirements of this also be purchased from the coamings are watertight; subpart. Commission’s duplicating contractor, (5) All manholes are covered and (b) A list of mooring and docking Qualex International, Portals II, 445 secured watertight; facilities (with phone numbers) in St. 12th Street, SW., CY–B402, Washington, (6) All voids are free of excess water; Joseph, Holland, Grand Haven, and DC, 20554, telephone 202–863–2893, and Muskegon, that can accommodate the facsimile 202–863–2898, or via e-mail (7) Precautions have been taken to tow. [email protected]. (c) A list of towing firms (with phone prevent shifting of cargo. List of Subjects in 47 CFR Part 73 (c) Verifications. On voyages north of numbers) that have the capability to Television, Digital television St. Joseph, the towing vessel master render assistance to the tow, if required. broadcasting. must contact a mooring/docking facility (d) Guidelines for possible emergency in St. Joseph, Holland, Grand Haven, situations, such as barge handling under Part 73 of Title 47 of the Code of and Muskegon to verify that sufficient adverse weather conditions, and other Federal Regulations is amended as space is available to accommodate the emergency procedures. follows: tow. The tow cannot venture onto Lake Dated: April 12, 2002. Michigan without confirmed space Paul J. Pluta, PART 73—[AMENDED] available. Rear Admiral, U.S. Coast Guard, Assistant 1. The authority citation for Part 73 (d) Log entries. Before getting Commandant for Marine Safety, Security and continues to read as follows: underway, the towing vessel master Environmental Protection. Authority: 47 U.S.C. 154, 303, 334 and 336. must note in the logbook that the pre- [FR Doc. 02–9834 Filed 4–22–02; 8:45 am] departure barge inspections, verification BILLING CODE 4910–15–U § 73.622 [Amended] of mooring/docking space availability, and weather forecast checks were 2. Section 73.622(b), the Table of Digital Television Allotments under performed, and record the freeboards of FEDERAL COMMUNICATIONS each barge. Florida, is amended by removing DTV COMMISSION channel *44 and adding DTV channel § 45.193 Towboat power requirements. 47 CFR Part 73 *40 at Boca Raton. The towing vessel must meet the Federal Communications Commission. [DA 02–893, MM Docket No. 00–138, RM– following requirements: Barbara A. Kreisman, 9896] (a) General. The towing vessel must Chief, Video Division, Media Bureau. have adequate horsepower to handle the Digital Television Broadcast Service; [FR Doc. 02–9952 Filed 4–22–02; 8:45 am] tow, but not less than the amount Boca Raton, FL BILLING CODE 6712–01–P specified for the routes below. (b) Milwaukee and St. Joseph routes: AGENCY: Federal Communications a minimum of 1,000 HP. Commission. DEPARTMENT OF TRANSPORTATION (c) Muskegon route: a minimum of ACTION: Final rule. 1,500 HP. National Highway Traffic Safety SUMMARY: The Commission, at the Administration § 45.195 Additional equipment request of The School Board of Broward requirements for the Muskegon route. County, Florida, substitutes DTV 49 CFR Part 573 Towboats on the Muskegon route channel *40 for DTV channel *44 at must meet these additional equipment Boca Raton, Florida. See 65 FR 50951, [Docket No. NHTSA–2002–12111] requirements: August 22, 2000. DTV channel *40 can (a) Communication equipment. Two be allotted to Boca Raton in compliance RIN 2127–AI30 independent voice communication with the principle community coverage Motor Vehicle Safety; Prohibitions on systems in operable condition, such as requirements of Section 73.625(a) at Sale or Lease of Defective and Very High Frequency (VHF) radio, reference coordinates (25–59–34 N. and Noncompliant Motor Vehicles and radiotelephone, or cellular phone. At 80–10–27 W.) with a power of 1000, Items of Motor Vehicle Equipment least two persons aboard the vessel must HAAT of 310 meters and with a DTV be capable of using the communication service population of 3989 thousand. AGENCY: National Highway Traffic systems. With this action, this proceeding is Safety Administration (NHTSA), DOT. (b) Cutting gear. Equipment that can terminated. ACTION: Final rule. quickly cut the towline at the towing DATES: Effective June 3, 2002. vessel. The cutting gear must be in SUMMARY: This document implements operable condition and appropriate for FOR FURTHER INFORMATION CONTACT: Pam section 8 of the Transportation Recall the type of towline being used, such as Blumenthal, Media Bureau, (202) 418– Enhancement, Accountability, and wire, polypropylene, or nylon. At least 1600. Documentation Act (TREAD Act) and two persons aboard the vessel must be SUPPLEMENTARY INFORMATION: This is a section 2504 of the Intermodal Surface capable of using the cutting gear. synopsis of the Commission’s Report Transportation Efficiency Act (ISTEA)
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by adding regulations that limit the sale a new motor vehicle or a new item of Section 8 of the TREAD Act added a or lease of noncompliant and defective motor vehicle equipment in the dealer’s new subsection (j), ‘‘Prohibition on sales motor vehicles and items of motor possession at the time of the notification of replaced equipment,’’ to 49 U.S.C. vehicle equipment. These sections may not sell or lease the vehicle or item 30120, effective November 1, 2000. This contain complementary provisions that of equipment unless the defect or subsection provides that no person may amend federal motor vehicle safety laws noncompliance is remedied as required sell or lease any motor vehicle by limiting the sale or lease of defective by section 30120 before delivery under equipment (including a tire) that is the and noncompliant motor vehicles and the sale or lease, or notification is subject of a decision under 49 U.S.C. equipment. required by an order under section 30118(b) or a notice required under 49 U.S.C. 30118(c), for installation on a EFFECTIVE DATE: This final rule will take 30118(b) but enforcement of the order is effect on May 23, 2002. restrained or the order is set aside in a motor vehicle, in a condition that it may Petitions for reconsideration: Any civil action to which section 30121(d) be reasonably used for its original petition for reconsideration of this rule applies. Thus, if a court sets the order purpose. Under section 30120(j)(1) and must be received by NHTSA no later aside, the prohibition will not apply and (2), the foregoing prohibition does not than June 7, 2002. the sale is permissible.1 apply if the defect or noncompliance is Section 30120(i) does not prohibit a remedied as required by 49 U.S.C. ADDRESSES: Petitions for reconsideration 30120, including implementing may be submitted in writing to: Docket dealer from offering the vehicle or regulations, before delivery under the Management, Room PL–401, 400 equipment for sale or lease. Thus, the sale or lease; or if notification of the Seventh Street, SW., Washington, DC dealer can offer the vehicle in the showroom but cannot sell or lease it. In defect or noncompliance is required 20590. Petitions for reconsideration may under section 30118(b) but enforcement also be submitted electronically by the 1990s, NHTSA did not engage in rulemaking with regard to this statutory of the order is set aside in a civil action logging onto the Docket Management to which 49 U.S.C. 30121(d) applies. System website at http://dms.dot.gov. prohibition. On November 1, 2000, the TREAD Sections 30120(i) and (j) are Click on ‘‘Help & Information’’ or Act, Public Law 106–414, 114 Stat. complementary provisions. Section ‘‘Help/info’’ to obtain instructions for 1800, was enacted. The statute was, in 30120(i), the ISTEA provision, applies filing your petition electronically. part, a response to congressional only to dealers in new motor vehicles Regardless of how a petition is and new items of motor vehicle submitted, the docket number of this concerns regarding the manner in which various entities dealt with defective equipment. Section 30120(j), the TREAD document should be referenced in that Act provision, applies to all persons petition. motor vehicles and motor vehicle equipment, including tires. During who sell or lease motor vehicle You may call Docket Management at equipment for installation on a motor 202–366–9324. You may visit the congressional consideration of the bill that eventually was adopted as the vehicle, in a condition that the Docket from 9 a.m. to 5 p.m., Monday equipment may reasonably be used for through Friday. TREAD Act, there had been media reports that some persons were selling its intended purpose, and to both new FOR FURTHER INFORMATION CONTACT: Ms. defective Firestone ATX or Wilderness and used equipment. To implement Enid Rubenstein, Office of Chief AT tires that had been returned to both statutory subsections, we proposed Counsel, NCC–10, NHTSA. Telephone dealers for replacement under an to revise 49 CFR part 573 by adding two 202–366–5263. ongoing safety recall. The Safety Act did separate regulatory sections, one SUPPLEMENTARY INFORMATION: not expressly prohibit such actions, (§ 573.11) applicable to the sale or lease Background since section 30120(i) does not apply to of defective or noncompliant new motor vehicles and new items of motor vehicle Since the enactment of the National the sale or lease of used vehicles or equipment. equipment by dealers (including Traffic and Motor Vehicle Safety Act in retailers of new motor vehicle 1966, now codified, as amended, as 49 1 Section 30118(c) requires manufacturers of equipment) and the other (§ 573.12) U.S.C. Chapter 301 (Safety Act), Federal motor vehicles or equipment to provide notification applicable to the sale or lease of law has prohibited the sale of new of safety-related defects or noncompliances with defective or noncompliant new and motor vehicles and motor vehicle motor vehicle safety standards to NHTSA, as well used motor vehicle equipment by any equipment that fail to comply with an as to the owners, purchasers and dealers of the person. While sections 30120(i) and (j) applicable Federal motor vehicle safety vehicle or equipment. Section 30118(b) authorizes the Secretary to make do not require rulemaking for their standard (FMVSS). See section 108(a) of a final decision that motor vehicles or equipment effectuation, NHTSA believes that there Public Law 89–563, 80 Stat. 722, contain a safety-related defect and/or do not comply will be two benefits to rulemaking. First, codified as 49 U.S.C. 30112(a). with an applicable motor vehicle safety standard rules will largely reduce, if not However, until 1991, the Safety Act did and, in that event, order the manufacturer to give notification of the defect or noncompliance to eliminate, questions relating to the not contain specific provisions limiting owners, purchasers, and dealers of the vehicles or meaning of the prohibitions. Second, the sale or lease of defective vehicles equipment, and order the manufacturer to remedy there are benefits to codifying the and equipment. To correct this the defect or noncompliance without charge. prohibitions, which complement other deficiency, section 2504 of the Section 30121 authorizes the Secretary to require a manufacturer to issue a provisional notification rules, in the Code of Federal Intermodal Surface Transportation about an order issued under section 30118(b) if the Regulations. Efficiency Act (‘‘ISTEA’’), Public Law manufacturer contests that order. Section 30121 102–240, 105 Stat. 2081 et seq., also authorizes a court to enjoin enforcement of the The New Regulatory Provisions amended the Safety Act by adding a Secretary’s order under section 30118(b) if the court In view of the ISTEA and the TREAD decides that failure to notify is reasonable and that new provision, which is codified at 49 the manufacturer has demonstrated the likelihood Act, we are revising 49 CFR 573.3(a) by U.S.C. 30120(i). of prevailing on the merits. (A manufacturer that specifying those to whom new §§ 573.11 Section 30120(i) states that a dealer fails to issue a provisional notification is subject to and 573.12 apply and we are amending who has been provided notification civil penalties unless a court enjoins enforcement 49 CFR part 573 to include, at §§ 573.11 of the order under section 30118(b)). See generally from the manufacturer about a safety- Ford Motor Co. v. Coleman, (402 F. Supp. 475 and 573.12, the prohibitions established related defect or noncompliance with a (D.D.C. 1975) (3-judge court), aff’d mem. 425 U.S. by 49 U.S.C. 30120(i) and (j), Federal motor vehicle safety standard in 927 (1976). respectively. These amendments are
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identical to those proposed in the order under section 30118(b) but motor vehicle lessors and motor vehicle NPRM (66 FR 38247 et seq. (July 23, enforcement of the order is restrained or rental companies are not subject to this 2001), except that we have added a the order is set aside in a civil action to rule because these groups are selling clarification to proposed § 573.3(h) to which section 30121(d) applies. Thus, if and leasing vehicles, not equipment or reflect the provision in 49 U.S.C. 30121 a court sets the order aside, as stated tires for use on motor vehicles. that the term ‘‘dealer’’ includes a retailer above, the prohibition will not apply 49 CFR 573.12 prohibits the selling or of motor vehicle equipment and and the sale is permissible. Finally, leasing of any motor vehicle equipment clarified the scope of proposed § 573.11. section 30120(i) states that it does not (including a tire), for installation on a motor vehicle, that is the subject of a Section 573.11 Prohibition on Sale or prohibit a dealer from simply offering decision under 49 U.S.C. 30118(b) or a Lease of New Defective or Noncompliant the vehicle or equipment for sale or notice required under 49 U.S.C. Motor Vehicles and Motor Vehicle lease, without actually selling it. 30118(c). In section 30120(j), Congress Equipment 2 Section 573.12 Prohibition on Sale or chose to restrict the sale or lease of Section 573.11, which implements 49 Lease of New or Used Defective and motor vehicle equipment, without U.S.C. 30120(i), applies to dealers, Noncompliant Motor Vehicle limitation. Thus, the prohibition including retailers of motor vehicle Equipment includes all equipment, including used equipment, and covers the sale and Section 573.12 of the rule implements equipment as well as new equipment.5 lease of new motor vehicles and motor 49 U.S.C. 30120(j), which provides that 49 U.S.C. 30120(j) prohibits the sale of vehicle equipment. It provides that a ‘‘ no person may sell or lease any motor equipment in a condition that it may be dealer may not sell or lease defective or vehicle equipment (including a tire), for reasonably used for its original purpose. noncompliant new motor vehicles or installation on a motor vehicle, that is Accordingly, § 573.12 prohibits only the items of motor vehicle equipment. By its the subject of a decision under section sale of equipment and tires that are still terms, 49 U.S.C. 30120(i) applies to new 30118(b) or a notice required under in a condition in which they can be motor vehicles and new items of motor section 30118(c) in a condition that it used for the purpose for which they vehicle equipment.3 Thus, the may be reasonably used for its original were originally intended. Thus, the rule requirements of 49 CFR 573.11 do not purpose’’ (emphasis added). In this does not apply to equipment and tires apply to used motor vehicles and used statutory section, Congress chose to use that have been permanently altered in a equipment. the general term ‘‘no person’’ as way that they can no longer be Several prerequisites must occur in opposed to the more restricted reasonably used for their original order for the prohibition on the sale or categories of ‘‘manufacturer’’ and purpose. For example, a tire that has lease of new motor vehicles or ‘‘dealer’’ used in section 30120(i) and been drilled with holes for eyebolts may equipment under section 30120(i) to elsewhere in Chapter 301. In view of the be sold for use as part of a playground apply. First, notification of a defect or breadth of the term ‘‘no person,’’ swing. noncompliance must have been § 573.12 is not limited to persons in Section 30120(j)(1) provides that the required by an order under section particular classes or categories. Rather, prohibition on the sale of equipment 30118(b) or under section 30118(c). the rule’s prohibition applies to the applies unless ‘‘the defect or Second, a dealer must have been actions of all persons, including noncompliance is remedied as required notified of the defect or noncompliance. individuals and business entities such by this section before delivery under the Finally, the dealer must be in as corporations. The rule clearly applies sale or lease.’’ Therefore, the equipment possession of the vehicle or equipment. to retailers of equipment, including may be sold if it has been repaired so The regulatory text at § 573.11 reflects tires. that it is no longer defective or two statutory exceptions that permit the The activities that are covered by 49 noncompliant. dealer to sell or lease new motor CFR 573.12, based on 49 U.S.C. The sale of the equipment will also be vehicles or equipment items that have 30120(j), are selling or leasing, ‘‘for allowed if ‘‘notification of the defect or been determined to be defective or installation on a motor vehicle,’’ any noncompliance is required under noncompliant. See 49 U.S.C. 30120(i). motor vehicle equipment (including a section 30118(b) but enforcement of the First, the dealer may sell or lease the tire), that is the subject of a decision order is set aside in a civil action to motor vehicle or item of equipment if under section 30118(b) or a notice which section 30121(d) applies.’’ Under the defect or noncompliance is required under section 30118(c). section 30118(b), if it is determined that remedied as required by section 30120 Accordingly, the rule will apply to a motor vehicle or replacement before delivery under the sale or lease. businesses and individuals that sell new equipment contains a defect related to Second, the sale or lease is permissible or used automobile parts, including motor vehicle safety or does not comply when notification is required by an tires. While § 573.12 prohibits the sale with an applicable motor vehicle safety or lease of equipment including tires for standard, the manufacturer is ordered to 2 The title of section 30120(i) refers to a installation on a motor vehicle, it does give notification of the defect or ‘‘limitation’’ on the sale or lease of vehicles or noncompliance under section 30119 to equipment, whereas the title of section 30120(j) not prohibit a person from selling or refers to a ‘‘prohibition’’ on the sale of replaced leasing a new or used vehicle that is owners, purchasers and dealers of the equipment. In the NPRM, we proposed to use the equipped with defective or term ‘‘limitations’’ to cover both statutory sections. noncompliant equipment or tires.4 For 5 We recognize that the title of section 30120(j) However, throughout the preamble to the NPRM, refers to ‘‘replaced equipment.’’ The U.S. Supreme we discussed various ‘‘prohibitions,’’ as we have example, a motor vehicle dealer is not Court has long held that the title of a statutory done again in the preamble to this rule. Also, in the subject to the prohibition of this rule provision cannot overcome the plain and revised title to 49 CFR part 573 that we proposed except with respect to equipment and unambiguous meaning of the words used in the text in the NPRM, we used the term ‘‘prohibitions.’’ tires that the dealer sells or leases of the statute. See Knowlton v. Moore, 178 U.S. 41 Therefore, for consistency, we have decided to use (1900). Thus, since the language of section 30120(j) the term ‘‘prohibitions’’ rather than ‘‘limitations’’ in separately from a vehicle. Similarly, is not limited, its reach extends to all motor vehicle both sections of the final rule, as well as in the equipment that has been found to be defective or revised title to 49 CFR part 573. 4 As discussed above, the sale or lease of a new noncompliant, regardless of whether it is original 3 The terms ‘‘dealer,’’ ‘‘motor vehicle’’ and ‘‘motor vehicle with defective or noncompliant equipment equipment or replacement equipment, despite the vehicle equipment’’ are defined at 49 U.S.C. or tires is already prohibited by 49 U.S.C. 30120(i) fact that the title of the subsection refers only to 30102(a)(1), (6) and (7). and will be prohibited by 49 CFR 573.11. ‘‘replaced equipment.’’
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vehicle or equipment.6 However, if requirement when it wanted to include that it applies when the manufacturer enforcement of the order is restrained or one: it did so in 1991 in enacting ‘‘has provided * * * notification about the order is set aside by a court, the subsection (i), but it did not do so nine a new * * * vehicle or * * * item of prohibition in section 30120(j) does not years later when it enacted subsection * * * equipment in the dealer’s apply, and, therefore, the sale of the (j). possession at the time of notification equipment in its unremedied condition In addition, under the ordinary rules *** .’’ NADA pointed out that the is permissible during the period when of statutory construction, statutes are to preamble and proposed regulatory text the order is not effective. be read to effectuate all of their in the NPRM raised issues about the provisions: ‘‘It is an elementary rule of meaning of this phrase. The statutory Response to Comments construction that effect must be given, if text requires possession, which in our We received three comments on the possible, to every word, clause and view includes both actual and NPRM, including one from a trade sentence of a statute.’’ 2A Sutherland, constructive possession. Although we association (the National Automobile supra, at § 46.06, citing United States v. would expect that dealers would Dealers Association (‘‘NADA’’)) and two Menasche, 348 U.S. 528 (1955); Plaut v. remedy vehicles and equipment that are from consumer groups (Advocates for Spendthrift Farm, Inc., 514 U.S. 211 the subject of notice but not yet in the Highway and Auto Safety (‘‘Advocates’’) (1995). If we followed NADA’s dealer’s actual or constructive and Public Citizen). We did not receive suggestion and ignored the differences possession at the time of notification, any comments from manufacturers. between subsections (i) and (j) with the statutory language of section The comments were generally respect to notice, the regulation would 30120(i) does not impose such a supportive of the proposed regulations. not be consistent with this rule of requirement. Accordingly, we have They are summarized below. construction and would fail to effectuate modified the proposed text of (1) Advocates fully supported the subsection (j), which by its terms does § 573.11(a) to state explicitly that the NPRM and urged its adoption, without not require notice from the prohibition applies to vehicles or any suggested revisions. manufacturer. equipment in the dealer’s actual or (2) NADA supported the issuance of NADA also disputed ‘‘any suggestion’’ constructive possession at the time of the rule but suggested a number of (in the preamble to the NPRM) that the the manufacturer’s notification. substantive and editorial changes. The section 30120(i) restriction applies to However, we note that manufacturers principal substantive change suggested new motor vehicles or equipment not in normally include ‘‘stop sale’’ or ‘‘stop was, in essence, to make both new the dealer’s possession at the time of delivery’’ instructions in their § 573.11 and § 573.12 duplicate each notification. NADA claimed that (1) notifications to dealers of defects and other, by providing in both that there is vehicles that have already been noncompliances, and, as noted earlier, no limitation on the sale or lease of delivered and are no longer in a dealer’s 49 U.S.C. 30112(a) contains an defective or noncompliant motor possession; (2) vehicles that have been independent prohibition against the sale vehicles or motor vehicle equipment sold but not yet left the dealer’s of noncompliant vehicles or equipment. unless the dealer has received actual possession prior to the dealer’s receipt Moreover, state consumer protection notice of the defect or noncompliance of notification; and (3) vehicles that the and tort laws may impose additional from the manufacturer. Although NADA dealer has not yet received when it duties on dealers. acknowledged that statutory subsections receives notification from the NADA also requested that proposed (i) and (j) differ from each other in that manufacturer are not subject to section § 573.12 be modified to add a new subsection (i) requires such notice 30120(i). subsection specifying that the whereas (j) does not, the association We agree with some of NADA’s prohibition does not apply if ‘‘(a) person nevertheless requested that NHTSA use comments, but not others. With respect * * * did not possess the motor vehicle its discretion to extend subsection (i)’s to the first, the vehicles or equipment equipment at the time of such notice.’’ notice condition to subsection (j), on that have already been delivered to We have not made NADA’s suggested grounds that this would create purchasers are beyond the coverage of modification because, as explained ‘‘fairness’’ to dealers. this statutory section, which applies earlier in this preamble, we have We have decided against making only to items ‘‘in the dealer’s concluded that the requirement for NADA’s proposed change. Under the possession,’’ and in any event will be manufacturer notification does not ordinary rules of statutory construction, covered by a notification from the apply to § 573.12. Congress is presumed to have intended manufacturer to the owner. In the In addition, NADA proposed to add a the effects of linguistic differences second situation posited by NADA, the new section to § 573.12, stating that the between statutory provisions. See 2A delivery to the purchaser has not prohibition does not apply to any item Sutherland, Statutory Construction (6th occurred. The dealer, who has of equipment that has been installed in Ed. Singer, 2000) at § 46.06: ‘‘In like possession of the vehicle or equipment, a new or used motor vehicle. As manner, where the legislature has must bring it into compliance or remedy indicated above, we do not believe that carefully employed a term in one place the defect before it is delivered to the this subsection is necessary. As we and excluded it in another, it should not purchaser. Requiring the dealer to carry stated in the preamble to the NPRM, it be implied where excluded.’’ This is out the remedy before delivering the is clear from the text of § 573.12(a) of particularly true where, as here, the vehicle to the purchaser will both the proposed rule, which specifically statutory provision that contains the implement the statutory text and prohibits selling or leasing ‘‘any new or notice requirement (in this case, effectuate the underlying statutory used item of motor vehicle equipment subsection (i)), was enacted several purpose. In these circumstances, there is *** for installation on a motor years before the statutory provision that no valid reason to excuse the dealer vehicle,’’ that the section does not apply does not contain the notice requirement from remedying the defect or to equipment that already has been (in this case, subsection (j)). Congress noncompliance in such vehicles and installed. NADA made a similar clearly knew how to draft a notice thereby permit the dealer to deliver suggestion with regard to our rule unsafe vehicles to purchasers. regarding reporting the sale or lease of 6 Section 30119 sets out the notification NADA’s third category is more defective or noncompliant tires, 49 CFR procedures the manufacturer must follow. problematic. Section 30120((i) states 573.10. As in that rule (see 66 FR 38161,
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July 23, 2001), we do not believe that incidence of covered sales and leases 6. Paperwork Reduction Act such a clarification is necessary. would be small even absent this rule. (3) Public Citizen did not oppose the Moreover, although many dealers are NHTSA has determined that this proposed regulation, but argued that its small entities, another provision of the notice will not impose a new collection text revealed ‘‘gaps’’ in the scope of the Safety Act requires manufacturers (or of information burden within the underlying statute and urged the agency distributors) to reimburse dealers both meaning of the Paperwork Reduction to seek further legislative amendments for the value of the dealer’s labor in Act of 1995, 44 U.S.C. 3502. during the forthcoming reauthorization installing replacement parts and for a 7. Unfunded Mandates Reform Act of process. Public Citizen’s suggested prorated portion of the manufacturer’s 1995 amendments would (1) extend 49 U.S.C. or distributor’s selling price, for 30120(i) to used motor vehicles and remedying defective or noncompliant The Unfunded Mandates Reform Act motor vehicle equipment and (2) extend vehicles or equipment prior to sale. See of 1995 (Pub. L. 104–4, 109 Stat. 48) 49 U.S.C. 30120(j) to those who lease or 49 U.S.C. 30116. requires agencies to prepare a written rent motor vehicles. Public Citizen did Governmental jurisdictions will not assessment of the cost, benefits, and not argue that we should extend the be affected by this rule. other effects of proposed or final rules that include a Federal mandate likely to regulation in the face of admittedly 3. E.O. 13132 (Federalism) absent statutory authority. Because a result in the expenditure by state, local, comment on an NPRM is not an E.O. 13132 requires NHTSA to or tribal governments, in the aggregate, appropriate mechanism for submitting a develop an accountable process to or by the private sector, of more that legislative proposal, we are not ensure meaningful and timely input by $100 million annually. Because a final responding here to the substance of State and local officials in the rule based on this proposal will not Public Citizen’s suggestion. development of regulatory policies that have an effect of $100 million, no have federalism implications. E.O. Unfunded Mandates assessment has Regulatory Analyses and Notices 13132 defines the term ‘‘policies that been prepared. have federalism implications’’ to 1. E.O. 12866 and DOT Regulatory List of Subjects in 49 CFR Part 573 Policies and Procedures include regulations that have ‘‘substantial direct effects on the States, Defects, Motor vehicle safety, This final rule has not been reviewed on the relationship between the national under E.O. 12866, ‘‘Regulatory Planning Noncompliance, Reporting and government and the States, or on the recordkeeping requirements, Tires. and Review.’’ After considering the distribution of power and impacts of this rulemaking action, we responsibilities among the various In consideration of the foregoing, have determined that the action is not levels of government.’’ Under E.O. NHTSA is amending 49 CFR part 573 as ‘‘significant’’ within the meaning of the 13132, NHTSA may not issue a set forth below. Department of Transportation regulatory regulation that has federalism policies and procedures. There are implications, that imposes substantial PART 573—REQUIREMENTS AND statutory prohibitions in place and these direct compliance costs, and that is not PROHIBITIONS APPLICABLE TO rules, which essentially incorporate the required by statute, unless the Federal SAFETY DEFECT AND statutory prohibitions, will not increase Government provides the funds NONCOMPLIANCE RECALLS the burdens on those covered by those necessary to pay the direct compliance 1. The authority citation for part 573 prohibitions. The impact of this rule costs incurred by State and local continues to read as follows: will be so minimal as not to warrant governments, or NHTSA consults with preparation of a full regulatory State and local officials early in the Authority: 49 U.S.C. 30102–103, 30112, evaluation because these provisions process of developing the regulation. 30117–121, 30166–167; delegation of only involve prohibitions on sales of The rule will not have substantial authority at 49 CFR 1.50 defective and noncompliant vehicles direct effects on the States, on the 2. Revise the heading of part 573 to and equipment, which are rare even relationship between the national read as set forth above. absent the rule. In light of the statutory government and the States, or on the 3. In § 573.3, revise paragraph (a) and provisions, this action does not involve distribution of power and add paragraphs (h) and (i) to read as a substantial public interest or responsibilities among the various follows: controversy. The rulemaking action will levels of government as specified in E.O. not have a substantial impact on any 13132. Thus, the requirements of § 573.3 Application. transportation safety program or on state section 6 of the E.O. do not apply to this (a) Except as provided in paragraphs and local governments. rule. (g), (h), and (i) of this section, this part 2. Regulatory Flexibility Act 4. National Environmental Policy Act applies to manufacturers of complete We have also considered the effects of We have analyzed this action for motor vehicles, incomplete motor this action in relation to the Regulatory purposes of the National Environmental vehicles, and motor vehicle original and Flexibility Act (5 U.S.C. 601 et seq.). I Policy Act, 42 U.S.C. 4321. The action replacement equipment, with respect to certify that this rule will have no will not have a significant effect upon all vehicles and equipment that have significant economic impact on a the environment. been transported beyond the direct substantial number of small entities. control of the manufacturer. 5. Civil Justice Reform The impact of this rule is expected to be * * * * * so minimal as not to warrant This rule does not have a retroactive (h) The provisions of § 573.11 apply preparation of a full regulatory or preemptive effect. Judicial review of to dealers, including retailers of motor flexibility analysis because this a rule based on this proposal may be vehicle equipment. provision only involves prohibitions on obtained pursuant to 5 U.S.C. 702. That sales or leases of vehicles or equipment section does not require that a petition (i) The provisions of § 573.12 apply to that have been determined to be for reconsideration be filed prior to all persons. defective or noncompliant. The seeking judicial review. 4. Add § 573.11 to read as follows:
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§ 573.11 Prohibition on sale or lease of 30120 before delivery under the sale or U.S.C. 30118(b) or a notice required new defective and noncompliant motor lease; or under 49 U.S.C. 30118(c), in a condition vehicles and items of replacement (2) When the notification is required that it may be reasonably used for its equipment. by an order under 49 U.S.C. 30118(b), original purpose. (a) If notification is required by an enforcement of the order is restrained or order under 49 U.S.C. 30118(b) or is (b) Paragraph (a) of this section is not the order is set aside in a civil action to applicable where: required under 49 U.S.C. 30118(c) and which 49 U.S.C. 30121(d) applies. the manufacturer has provided to a (b) Paragraph (a) of this section does (1) The defect or noncompliance is dealer (including retailers of motor not prohibit a dealer from offering the remedied as required under 49 U.S.C. vehicle equipment) notification about a vehicle or equipment for sale or lease, 30120 before delivery under the sale or new motor vehicle or new item of provided that the dealer does not sell or lease; replacement equipment in the dealer’s lease it. (2) Notification of the defect or possession, including actual and 5. Add § 573.12 to read as follows: noncompliance is required by an order constructive possession, at the time of under 49 U.S.C. 30118(b), but notification that contains a defect § 573.12 Prohibition on sale or lease of enforcement of the order is restrained or related to motor vehicle safety or does new and used defective and noncompliant the order is set aside in a civil action to not comply with an applicable motor motor vehicle equipment. which 49 U.S.C. 30121(d) applies. vehicle safety standard issued under 49 (a) Subject to § 573.12(b), no person Issued on: April 16, 2002. CFR part 571, the dealer may sell or may sell or lease any new or used item lease the motor vehicle or item of of motor vehicle equipment (including a Jeffrey W. Runge, replacement equipment only if: tire) as defined by 49 U.S.C. 30102(a)(7), Administrator. (1) The defect or noncompliance is for installation on a motor vehicle, that [FR Doc. 02–9773 Filed 4–22–02; 8:45 am] remedied as required by 49 U.S.C. is the subject of a decision under 49 BILLING CODE 4910–59–P
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Proposed Rules Federal Register Vol. 67, No. 78
Tuesday, April 23, 2002
This section of the FEDERAL REGISTER Executive Order 12866 Resources Conservation Service, PO Box contains notices to the public of the proposed This rule was determined to be 2890, Washington, DC 20013–2890. issuance of rules and regulations. The purpose of these notices is to give interested significant and was reviewed by the Paperwork Reduction Act Office of Management and Budget persons an opportunity to participate in the No substantive changes were made by rule making prior to the adoption of the final (OMB) under Executive Order 12866. this proposed rule that affect the record rules. Pursuant to section 6(a)(3) of Executive keeping requirements and estimated Order 12866, the Commodity Credit burdens previously reviewed and Corporation (CCC) and Natural DEPARTMENT OF AGRICULTURE approved under OMB control number Resources Conservation Service (NRCS) 0560–0004. conducted an economic analysis of the Office of the Secretary potential impacts associated with this Executive Order 12788 proposed rule. The economic analysis 7 CFR Part 12 This proposed rule has been reviewed concluded that the past 11 years of in accordance with Executive Order experience in implementing the 12778. The provisions of this proposed RIN 0578–AA27 minimal effect exemptions demonstrates rule are not retroactive. Furthermore, that the provisions will reduce the the provisions of this proposed rule Wetland Conservation compliance burden upon landowners preempt State and local laws to the AGENCY: Office of the Secretary, USDA. while protecting wetland functions and extent such laws are inconsistent with values. CCC and NRCS believe that this proposed rule except that private ACTION: Notice of Proposed Rulemaking identification of categorical minimal persons and entities may be subject to with request for comments. effects will improve implementation of such State and local laws outside of the the wetland conservation provisions by SUMMARY: The United States Department Food Security Act of 1985. Before an reducing unnecessary administrative of Agriculture (USDA) is issuing a action may be brought in a Federal court burdens on producers and the USDA proposed rule setting out certain of competent jurisdiction, the agencies. NRCS estimates that the use of categorical minimal effect exemptions administrative appeal rights afforded the CMWs will reduce clients’ savings (CMWs) under the wetland conservation persons at CFR parts 11, 614, 780, and of approximately 27,000 hours per year. provisions of the Food Security Act of 1900 Subpart B of this title, as Similar savings would be realized by 1985, as amended. This proposed rule appropriate, must be exercised and NRCS in a reduction of resources identifies five (5) wetland conversion exhausted. necessary to prepare and analyze activities, which due to the type of Unfunded Mandates Reform Act of wetland conservation provision wetlands or other criteria, would only 1995 exemptions. A copy of this cost-benefit have a minimal effect upon wetland analysis is available upon request from Pursuant to Title II of the Unfunded functions and values, and thus would Floyd Wood, Watersheds and Wetlands Mandates Reform Act of 1995, Pub. L. not render a producer ineligible for Division, Natural Resources 104–4, the effects of this rulemaking certain USDA program benefits. USDA Conservation Service, PO Box 2890, action on State, local, and Tribal is seeking comments from the public Washington, DC 20013–2890. governments, and the public have been that will be considered in developing a assessed. This action does not compel final rule. Regulatory Flexibility Act the expenditure of $100 million or more DATES: Comments must be received by The Regulatory Flexibility Act is not by any State, local, or Tribal June 24, 2002. applicable to this rule since it does not governments, or anyone in the private ADDRESSES: All comments concerning contain a major proposal requiring sector; therefore a statement under § 202 this proposed rule should be addressed preparation of a regulatory analysis of the Unfunded Mandates Reform Act to Watersheds and Wetlands Division, under the E.O. This regulation will not of 1995 is not required. have a significant economic impact on Natural Resources Conservation Service, Discussion of Wetland Conservation a substantial number of small entities. PO Box 2890, Washington, DC 20013– Provisions 2890, Attention: CMW rule, or by e- This proposal will not alter or expand mail: [email protected], Attention: the wetland conservation provisions but Title XII of the Food Security Act of CMW rule. This rule may also be allow activities already eligible for 1985, as amended (the 1985 Act), accessed, and comments submitted, minimal effect exemptions to be encourages participants in USDA through the Internet. Users can access reviewed and approved in a more programs to protect highly erodible land the NRCS Federal Register home page expedited manner. and wetlands by linking eligibility for certain USDA program benefits to and submit comments to the Web site National Environmental Policy Act http://www.nrcs.usda.gov. From the farming practices on highly erodible menu, select ‘‘Farm Bill.’’ It was determined through an land and wetlands. In particular, the environmental assessment that the wetland conservation (WC) provisions FOR FURTHER INFORMATION CONTACT: issuance of this proposed rule will not of the 1985 Act provide that after Floyd Wood, Watersheds and Wetlands have a significant impact upon the December 23, 1985, a program Division, Natural Resources human environment. Copies of the participant is ineligible for certain Conservation Service, Phone: (202) 690– environmental assessment may be USDA program benefits for the 1588 or Fax: (202) 720–2143. obtained from Floyd Wood, Watersheds production of an agricultural SUPPLEMENTARY INFORMATION: and Wetlands Division, Natural commodity on a converted wetland.
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However, the 1985 Act also provides published September 6, 1996, in the Identification of CMWs that certain activities can be conducted Federal Register Volume 61, Number NRCS has 14 years of experience in in wetlands, so long as those activities 174, pages 47019–47038. making minimal effect determinations have a minimal effect on the wetland’s To increase program participants’ in the field, using approved functional functions and values. That is, an action certainty about whether an activity assessment procedures, on a case-by- individually and in connection with all would qualify for a minimal effect case basis. To begin the process of other similar actions, will have a exemption and to reduce the need for developing CMWs, each NRCS State minimal effect on the functional site-specific determinations, Congress conservationist reviewed past minimal hydrological and biological values of the required the Secretary of Agriculture to effect activities to identify categories of wetlands in the area, including the promulgate a regulation identifying where exemptions were routinely values to waterfowl and wildlife. Each categories of activities determined to granted, developed proposed CMWs, NRCS State Office is led by a State minimally effect wetland functions and and reviewed the proposed CMWs with conservationist, one of whose duties is values. Section 322(c) of the 1996 Act, the State Technical Committee (STC). to ensure that minimal effect 16 U.S.C. 3822 d), directs the Secretary The STC includes members of other determinations are completed according of Agriculture to identify, by regulation, Federal agencies, state natural resource to the 1985 Act. NRCS conducts ‘‘categorical minimal effect exemptions agencies, producer organizations, and functional assessments of wetlands, on a regional basis to assist persons in other groups, organizations, and private using acceptable methodology for the avoiding a violation’’ of the wetland individuals. Each STC reviewed and area where the action is proposed, to conservation provisions. This change made recommendations to their ascertain the effects of the action on the was not included in the interim final respective State conservationist about hydrological and biological functions. regulation, as it required additional the proposed CMWs. The State The decision to grant a minimal effect technical analysis by USDA. This conservationists then decided which exemption is based primarily on the proposed rule implements the mandate CMWs would be proposed and magnitude of change in wetland found in section 322(c) of the 1996 Act forwarded them to the NRCS National functions as a result of the action. and codified at 16 U.S.C. 3822(d). The Office for consideration. Based on the The USDA issued a final rule CMW rule would also remain a separate implementing the WC provisions of the records of prior minimal effect rule to facilitate future modification, if determinations available to them, the 1985 Act on September 17, 1987. These necessary. regulations, found at 7 CFR part 12, State Conservationists proposed a total provided the terms of program Categorical minimal effect exemptions of 16 CMWs. ineligibility, described the several are those categories of actions that can The NRCS National Office assembled exemptions from ineligibility, outlined be taken in wetlands without loss of an interdisciplinary team with the responsibilities of the several USDA eligibility for certain USDA programs, representatives from each NRCS region agencies involved in implementing the because they have routinely been and an U. S. Fish and Wildlife Service provisions, and generally established determined to have only a minimal employee to review the 16 proposed the framework for administration of the effect on the functions of wetlands CMWs to ensure they met statutory and provisions. The field offices of NRCS associated with that category. To qualify regulatory requirements. NRCS have operated under the final rule since as a categorical minimal effect requested that the U.S. Fish and September 17, 1987, in making minimal exemption under the 1996 Act, a Wildlife Service participate with this effects determinations through proposed action must historically have team to address the impacts of the functional assessment procedures. been determined by NRCS, individually alternatives on the wildlife habitat The Food, Agriculture, Conservation, and collectively with all other similar requirements, as well as to help satisfy and Trade Act of 1990 (the 1990 Act), actions authorized by the Secretary in potential impacts to species subject to amended the 1985 Act and made some the area, to have a minimal effect on the the provisions of the Endangered significant modifications to the WC hydrological and biological functions of Species Act. This review included all provisions. In particular, the wetlands in the area, including values to proposed CMWs as well as identifying amendments made by the 1990 Act waterfowl and wildlife. The presence of any additional conditions necessary to provided that in addition to the planting hydrological and biogeochemical ensure a CMWs had only minimal on a converted wetland violation rule, functions is critical to the presence and effects on wetland functions and values. any person who in any crop year after maintenance of wetland floral and In addition, all public comments November 28, 1990, converts a wetland faunal communities and habitat. concerning CMWs provisions received by draining, dredging, filling, leveling, Additionally, NRCS uses the original during the comment period for the or any other means for the purpose, or scope and effect of prior hydrologic Highly Erodible Lands/Wetland Interim to have the effect of making the manipulation as a baseline to determine Final Rule published September 6, production on an agricultural whether maintenance activities exceed 1996, were reviewed. As part of the commodity possible, shall be ineligible the original scope and effect. Activities review, the team used the NRCS Land for certain USDA program benefits for exceeding the original scope and effect Resource Regions and Major Land that crop year and all subsequent crop will still be allowed when the Resource Areas map to determine the years until the wetland is restored or manipulation qualifies for an USDA regional applicability of the proposed mitigated, unless exemptions to the Act exemption, including the CMWs. CMWs. Each of the CMWs in the apply. Therefore, a decision to include a proposed rule has the applicable region The Federal Agriculture Improvement particular CMW is based on a historical identified based on the Land Resource and Reform Act (the 1996 Act), enacted analysis by NRCS at the local level on Area and Major Land Resource Area April 4, 1996, made several changes to the presence and degree of hydrological codes, as well as a reference map. After increase the options available so and biogeochemical functions, the review, the team agreed that the producers could comply with WC impact on those functions caused by following 5 of the proposed 16 CMWs provisions in their farming and ranching installation of the proposed CMW, and meet the requirements set forth in the activities. USDA adopted these changes the subsequent effects on associated 1996 Act. This rule proposes to amend in an interim final rule for Part 12, floral and faunal communities. subpart C of 7 CFR part 12 to include
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the 5 CMWs. USDA finds that the farmers will use other than normal CMW #5—Control or Removal of Exotic identification of the following CMWs farming operations to remove the trees Invasive Woody Species, Including will improve the implementation of the and stumps, and the removal will Stumps WC provisions of the 1985 Act, as generally be by mechanical means, such USDA determined that the species amended: as bulldozers or trackhoes. listed under this CMW are either CMW #1—Removal of Woody However, chemicals could also be invasive or exotic, and generally have a Vegetation, Including Stumps from used. USDA believes the direct impact negative environmental impact on Natural Herbaceous Wetlands will be the removal of scattered trees wetland ecology. Most of these species and stumps, along with the possibility colonize wetlands after some earlier USDA determined that small areas of more tillage. Other impacts may have developed into woody vegetation disturbance has taken place. In many include minor changes to wildlife and areas, the species invade the wetland on prairie soils, usually through lack of fish habitat, possible small changes in maintenance practices. These areas exist and riparian zones, some of the most precipitation run-off, and removal of important and limited wildlife habitat. because natural events such as wildfire some invasive woody species. and grazing, which would have resulted These species do not replace the habitat in the succession of a non-woody CMW #3—Installation of Grassed value of native vegetative species. In vegetative community, may no longer Waterways for Erosion Control on non- addition, the exotic species have occur. The action implicates the Highly Erodible Croplands minimal value for erosion control and application of the WC provisions bank stabilization, and may contribute USDA determined that this activity is because the removal of woody to water quality and quantity problems. carried out to control erosion in vegetation makes possible the The CMW provides that no additional concentrated flow wetland areas, production of an agricultural alterations to the hydric conditions are commodity in a wetland area. However, located in or between non-highly allowed. USDA determined that these USDA determined that such action, erodible fields. USDA determined that wetlands would function at an equal or when conducted under specified the direct impacts include short-term higher level after the removal of the conditions identified in the proposed construction disturbance, decrease in exotic invasive species, and when the rule, will not have a significant impact erosion and sediment delivery, wetland is being managed according to on wildlife and fish habitat, will improvement in run-off water quality, the criteria in the proposed rule. In enhance the ‘‘prairie wetland’’ function and possibly some loss of degraded addition, USDA believes indirect by returning these areas to a more wetlands. USDA believes that the impacts from removal of these exotic natural seral stage, and will not impacts to wildlife and fish habitat species are positive because of otherwise implicate the WC provisions. should be positive, since eroding areas protection from invasion to adjacent For sites where cropping is allowed to will be permanently revegetated to natural areas. Impacts to wildlife and resume, cropping history will be native or other approved species. Based fish habitat should be positive, since verified using official USDA records, or on past functional assessments, USDA invasive, noxious vegetative species will in cases where records are not available, determined that the installation of be removed. photographic evidence or other grassed waterways in these wetlands Some of these wetlands have been documentation. will have minimal effect on wetland previously converted back to cropland functions and values, as long as all or pastureland, with the approval of the CMW #2—Removal of Scattered Woody conditions as set forth in the proposed Corps of Engineers, Fish and Wildlife Vegetation, Including Stumps rule are met. Service, and NRCS. Based on USDA determined that based on past CMW #4—Terrace Construction for assessment of these conversions, USDA functional assessments, the removal of Erosion Control on Erodible Cropland determined that the removal of the scattered woody vegetation, including species listed would have minimal stumps, from farmed, hayed, or grazed Since this activity may result in the effect on wetland functions and values, wetlands will have minimal effect on manipulation of wetlands, a person as long as all criteria are followed. wetland functions and values, as long as could violate the wetland conservation the criteria for obtaining the exemption provisions. Typically, these wetlands Mandatory Conditions of Exemption from ineligibility are followed. CMW #2 have already been altered in the past. Eligibility will apply to the removal of vegetation USDA determined that the direct The proposed CMW exemptions are and stumps in wetlands that have impacts include control of erosion, required by statute to provide farmers, already been significantly degraded, and reduction of sediment moving off-site, ranchers and other landowners with are farmed, hayed, or grazed. This CMW and improvement of water quality. needed flexibility to perform routine shall only apply if woody vegetation is Other impacts may include partial land maintenance on cropland and scattered within the wetland and diversion of runoff waters from pastureland in a manner that will result comprises less than 5 percent canopy wetlands located down slope from the in only minimal impacts to wetland cover, when measured vertically on the activity. USDA has consistently found functions. During the development of subject portion of the wetland to be that impacts to wildlife and fisheries each CMW, specific conditional cleared. It shall not apply to any habitat will be minimal, since most of requirements were incorporated, which forested wetlands that were logged these areas are already in cropland. must be rigidly adhered to for an within 3 years previous to conducting However, the activity may result in exemption to apply. These conditions the categorical minimal effect placement of fill within wetlands. Based will result in the safeguarding of determinations, where such areas on past functional assessments, USDA threatened and endangered species comprised trees 20 feet or taller that determined that the installation of habitat, protection of adjacent wetlands, composed 30 percent or more of the terraces through these wetlands will streams and water bodies, enhancement dominant vegetation. These wetlands have minimal effect on wetland of bio-diversity for native wetland flora, typically have reduced functions and functions and values, as long as all and assure exemption-related activities values because of previous conditions set forth in the proposed rule are implemented according to science- manipulation. Because of tree size, are met. based standards and specifications. Of
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the five proposed CMWs, No.’s 1, 2, 3 Protection Agency (EPA) or the Corps of (e) * * * and 4 may only be used where farmed Engineers (COE) under section 404 of (5) Specific categorical minimal effect wetlands and farmed wetland pastures the Clean Water Act.’’ This proposed exemptions: occur. These landuse wetlands have rule is promulgated under the authority been previously and significantly of the 1985 Act, as amended, and (i) Categorical minimal effect degraded through normal agricultural therefore, does not affect the obligations exemptions (CMWs) are those actions activities such as annual tillage, haying of any person under other Federal that have, individually and in or grazing. Additionally, many of the statutes, or the legal authorities of any connection with all other similar actions activities associated with the other Federal agency including, for authorized by the Secretary in the area, application of CMWs will result in example, EPA’s authority to determine a minimal effect on the functional direct benefits to wetlands, fish and the geographic scope of Clean Water Act hydrological and biological value of the wildlife habitat, and water quality. For jurisdiction. Nonetheless, NRCS, the wetlands in the area, including the example, CMW # 5 will allow the COE and EPA place a high priority on value to waterfowl and wildlife. Both removal of exotic, invasive woody adopting procedures and policies that the hydrogeomorphic wetland plants that have invaded wetlands and minimize duplication and classification system and the 1996 Act riparian zones. CMWs No.’s 3 and 4 will inconsistencies between the wetland wetland determination labels identify result in improved water quality by conservation provisions of the 1985 Act the wetland types eligible for use with reducing erosion and sediment delivery and the Clean Water Act section 404 each CMW. to downstream wetlands, streams and programs. Any one who wishes to (ii) When participating in certain tributaries. utilize the CMWs described in this USDA programs, it is the person’s Since each CMW was developed by proposed rule is advised to contact the responsibility to comply with applicable incorporating numerous, mandatory local COE and State officials to ensure statutes and regulations. Caution should restrictive conditions that should result that activities meet any compliance be exercised when manipulating or in only limited impacts to wetland requirements. Further, anyone wishing converting wetlands, to ensure that the ecosystems, NRCS believes there is no to come within the coverage of any of actions taken meet the requirements of need for the application of additional the CMWs must ensure that actions this part, including the specific acreage limitations such as the one-half comply with all of the conditions set conditions for an applicable CMW, in acre limitation used by the Corps for forth for the particular CMW. order to be in compliance with this part. implementing nationwide permits under section 404 of the Clean Water List of Subjects in 7 CFR Part 12 (iii) CMW #1—Removal of woody vegetation, including stumps from Act. However, in order to enhance Administrative practices and natural herbaceous wetlands: programmatic consistency between all procedures, Wetlands. other Federal, state and local wetland (A) Purpose. CMW # 1 allows clearing protection laws and the 1985 Act, NRCS PART 12—[AMENDED] of wetland areas that developed under is specifically soliciting comments from Accordingly, Title 7 of the Code of native prairie vegetation, but have been the public regarding possible acreage Federal Regulations is amended as invaded by woody vegetation. limitations for any or all of the CMWs. follows: (B) 1996 Act trigger. The removal of Continued Coordination With Other 1. The authority citation for Part 12 woody vegetation (trees and stumps) Federal Agencies continues to read as follows: makes possible the production of an Consistent with the intent expressed Authority: 16 U.S.C. 3801 et seq. agricultural commodity. in the preamble to the current interim 2. Section 12.31 is amended by a new (C) Scope. CMW #1 shall only be final rule (Federal Register Volume #61, paragraph (e)(5) to read as follows: applicable to the following land Number 174), the changes proposed in resource regions and Major Land this rule ‘‘do not supersede the wetland § 12.31 On-site wetland identification Resource Areas (MLRAs): M, N, F, and protection authorities and criteria. G (58C & D, 60A, 61, 62, 63A and B, 64, responsibilities of the Environmental * * * * * 65, and 66). See Map #1.
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(D) Wetland types. CMW #1 may only (3) Not encompass greater than 1⁄2 acre wetland areas that have previously been be used on farmed wetlands and farmed of manipulation of woody vegetation manipulated and are currently cropped, wetland pastures, where such wetlands per Farm Tract. hayed, or grazed. (4) Be on soils that formed under mid are identified as depressions, lacustrine (B) 1996 Act trigger. The removal of fringe, riverine, or slope wetlands under and tall grass prairie conditions; scattered woody vegetation and stumps the hydrogeomorphic classification (5) Not be cropped unless the majority from a wetland through means other system. of the manipulated portion of the (E) Conditions necessary to obtain wetland has a cropping history; and than normal tillage operations. exemption from ineligibility. The (6) Not be applied within occupied (C) Scope. CMW #2 shall only be removal of the woody vegetation from Federally protected threatened and applicable to the following land the natural herbaceous wetlands must: endangered species habitat, or within resource regions and MLRAs: A, B, C, I, (1) Disturb only the soil necessary to Federally designated critical habitat. J, K, L, M, N, O, P, R, S, T, and U. See complete the activity; (iv) CMW #2—Removal of scattered Map #2. (2) Result in woody materials not woody vegetation, including stumps: being placed in waters of the United (A) Purpose. CMW # 2 allows clearing States; of scattered woody vegetation in
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(D) Wetland types. CMW #2 may only (5) Ensure that woody vegetation will (v) CMW #3—Installation of grassed be used on farmed wetlands and farmed be maintained adjacent to streams and waterways for erosion control on non- wetland pastures, where such wetlands water bodies at the minimum width as highly erodible croplands: are identified as depressions, lacustrine found in the NRCS Field Office (A) Purpose. CMW #3 allows grading, fringe, mineral soil flats, organic soil Technical Guide Practice Standard shaping, and revegetating areas for flats, riverine, or slope wetlands under ‘‘Riparian Forest Buffer’’, which may be grassed waterways installation in or the hydrogeomorphic classification obtained at any local NRCS office; between non-highly erodible croplands system. (6) Be by means other than normal to convey run-off water without causing (E) Conditions necessary to obtain tillage operations; erosion. In some instances, construction exemption from ineligibility. The may include installation of non- (7) Not be applied within occupied removal of scattered woody vegetation, perforated drainage tile in the grassed Federally protected threatened and including stumps must: waterway, to convey water causing endangered species habitat, or within (1) Result in the stems and stumps not drainage area erosion. Federally designated critical habitat; being placed in a waters of the United (B) 1996 Act trigger. The installation and States; of a grassed waterway has the potential (2) Be on wetland areas currently ( 8) Be used on other than clumps of of converting adjacent wetland areas cropped, grazed or hayed; woody vegetation. and making possible the production of (3) Disturb only the minimum area (F) Additional criteria. Must not be on an agricultural commodity. and soil necessary to complete the stem areas that have been logged within 3 Additionally, the grading and shaping of and stump removal; years prior to conducting the categorical the wetland for a grassed waterway may (4) Be on areas where the woody minimal effects determination, on sights make the graded and shaped area vegetation is scattered, not clustered, where woody vegetation comprised of capable of producing an agricultural and where woody vegetation comprises trees, 20 feet or taller that composed 30 commodity. less than 5 percent canopy cover within percent or more of the dominant (C) Scope. CMW #3 shall be available the wetland, when measured vertically. vegetation. in the following land resource regions
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and MLRA(s): F, G, H, K (90, 91, 93, 94A), L, M, R, S. See Map #3.
(D) Wetland types. CMW #3 may only (4) Not adversely affect adjacent (3) The waterway, once constructed, be used on farmed wetlands and farmed wetlands; must be revegetated to an approved wetland pastures, where such wetlands (5) Not allow the waterway itself to be native or introduced seed mixture are identified as slope wetlands under used for annual cropping; suitable for the site and accommodating the hydrogeomorphic classification (6) Not allow dredge or fill material to wildlife needs whenever possible. system. be placed in waters of the United States; (4) The operation and management of (E) Conditions necessary to obtain (7) Not allow the construction of a the grassed waterway, including exemption from ineligibility. The grass waterway through or otherwise mowing or grazing of the waterway, installation of grassed waterways must: convert depressional wetlands that must be in accordance with the NRCS (1) Be only on drainageways carrying occur along the waterway; and standards and restrictions for grassed concentrated flow when needed to (8) Not be applied within occupied waterways as found in the FOTG, which control gully erosion, or when the Federally protected threatened and may be obtained at any local NRCS waterway is aggrading; endangered species habitat, or within office. (2) Be designed and constructed in Federally designated critical habitat. (vi) CMW #4—Terrace construction accordance with NRCS Field Office (F) Additional criteria. for erosion control on erodible cropland: Technical Guide (FOTG) standard, (1) CMW #3 does not apply to wooded (A) Purpose. CMW #4 allows terrace which may be obtained at any local areas. construction for erosion control on NRCS office; (2) The constructed waterway cannot erodible cropland. (3) Not include the installation of reduce the size of the pre-construction (B) 1996 Act trigger. This may be perforated drainage tile within the permanently vegetated area by more completed for the purpose of, or to make waterway area; than 10 percent. possible, the production of an
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agricultural commodity by either by altering the hydrology of adjacent or regions and MLRA(s): F, G, H, L, M, R, manipulating a wetland in the field or downslope wetlands. and S. See Map #4. (C) Scope. CMW #4 shall be available only in the following land resource
(D) Wetland types. CMW #4 may only (3) Be drained with non-perforated (vii) CMW #5—Control or removal of be used on farmed wetlands and farmed tile if underground outlets for terraces exotic and/or invasive woody species, wetland pastures, where such wetlands are installed; including stumps: are identified as sloped wetlands under (4) Be designed to minimize adverse (A) Purpose. CMW #5 allows the the hydrogeomorphic classification impacts to adjacent or downslope (not removal of the following species: system. in the terraced field) wetlands; Australian pine (Casuarina (E) Conditions necessary to obtain (5) Precipitation run-off normally equisetifolia), Brazilian pepper (Schinus exemption from ineligibility. The terrace entering a down slope wetland should terebinthifolius), Common chinaberry construction must: be maintained such that the wetland (Melia azedarach), Chinese tallowtree (1) Be carried out only for the purpose hydrological conditions are similar to (Sapium sebiferum), melaleuca of erosion control in fields where the pre-construction conditions; (Melaleuca quinquenervia), Russian erosion rate is greater than the tolerable (6) Be completed no closer to any off- olive (Elaeagnus augustiflora), and ‘‘T’’ soil erosion rate, as identified in the site wetland, than the distance of one Saltcedar (Tamarix gallica). NRCS Field Office Technical Guide; terrace spacing, according to NRCS (B) 1996 Act trigger. The removal of (2) Be built with a non-erosive outlet, Field Office Technical Guide; and stems, stumps, and roots of woody, and according to practice standards in (7) Not be applied within occupied invasive or exotic species by mechanical the NRCS Field Office Technical Guide, Federally protected threatened and operations may make possible the which may be obtained at any local endangered species habitat, or within production of an agricultural NRCS office; Federally designated critical habitat. commodity.
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(C) Scope. CMW #5 shall only be ( 1) The control or removal of Chinese (v) Provide that materials removed are available in the land resource regions tallowtree in MLRA 150A & B, 151, and not disposed of in waters of the United and MLRA(s) for the particular species 152B (Map #5) must: States; as described in paragraph (f)(5) of this (i) Be carried out only on prairie soils; (vi) Maintain native woody vegetation section. (ii) Be on areas where the existing adjacent to streams and water bodies at woody canopy is 80 percent or more in minimum widths in accordance with (D) Wetland types. CMW #5 may be tallowtree cover; the NRCS Field Office Technical Guide used on any wetland type, including all (iii) Limit the soil disturbance to the Practice Standard ‘‘Riparian Forest wetlands identified under the minimum necessary to complete Buffer’’, which may be obtained at any hydrogeomorphic classification system. activity; local NRCS office; and (E) Conditions necessary to obtain (iv) Not remove any native woody (vii) Not be applied if the area is exemption from ineligibility: species greater than 10 inches in occupied by Federally protected diameter at breast height (dbh); threatened and endangered species.
(2) The control or removal of (ii) Be on areas that were previously quality, and conservation practices for Australian pine, Brazilian pepper, farmed but are now considered crop rotation; Common chinaberry, Chinese abandoned; (v) Limit soil disturbance to the tallowtree, and Melaleuca in MLRA (iii) Not include areas identified as minimum necessary to complete 133A, 138, 152A, 153A, and Resource prior converted cropland; activity; Region U (Map #6) must: (iv) Provide that the management after (i) Be on areas where the existing removal of stems and stumps will (vi) Provide that materials removed woody canopy is 50 percent or more of include activities such as shallow water are not disposed of in waters of the the invasive species alone, or in development, moist soil management, United States; combination; best management practices for water
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(vii) Prohibit cropping subsequent to bodies at the minimum width (ix) Not be applied if the area is removal of the invasive species if the prescribed by the NRCS Field Office occupied by Federally protected area is historically wooded; Technical Guide Practice Standard threatened and endangered species. (vii) Maintain native woody ‘‘Riparian Forest Buffer’’; and vegetation adjacent to streams and water
(3) The control or removal of (iii) Prohibit cropping subsequent to (vi) Maintain woody vegetation Saltcedar in Resource Regions C, D, E, the removal of the invasive species if adjacent to streams and water bodies at F, G, H, and I (Map #7) must: the area is historically wooded; the minimum width prescribed by the (i) Prohibit the removal of native (iv) Establish, to reduce re-invasion, NRCS Field Office Technical Guide woody species; permanent native herbaceous or woody Practice Standard ‘‘Riparian Forest cover if the area is not historically Buffer’’, which may be obtained at any (ii) Limit soil disturbance to the cropped; local NRCS office; and minimum necessary to complete (v) Provide that materials removed are (vii) Not be applied if the area is activity; not disposed of in waters of the United occupied by federally protected States; threatened and endangered species.
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(4) The control or removal of Russian (iii) Prohibit cropping subsequent to the minimum width prescribed by the olive in Resource Regions A, B, C, D, E, the removal of the invasive species if FOTG, NRCS Practice Standard F, G, H, I, J, K, and M (Map #8) must: area is historically wooded; ‘‘Riparian Forest Buffer’’, which may be (i) Prohibit the removal of native (iv) Provide that materials removed obtained at any local NRCS office; and woody species; are not disposed of in waters of the (vi) Not be applied if the area is (ii) Limit soil disturbance to the United States; and minimum necessary to complete (v) Maintain woody vegetation occupied by Federally protected activity; adjacent to streams and water bodies at threatened and endangered species.
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Signed at Washington, DC, on April 4, Procedures (SIAP) have been at http://www.alaska.faa.gov/at or at 2002. established for the Nuiqsut Airport. The address http://162.58.28.41/at. Ann M. Veneman, existing Class E airspace at Nuiqsut is FOR FURTHER INFORMATION CONTACT: Secretary. insufficient to contain aircraft executing Derril Bergt, AAL–538, Federal Aviation [FR Doc. 02–9700 Filed 4–22–02; 8:45 am] the new SIAPs. Adoption of this Administration, 222 West 7th Avenue, BILLING CODE 3410–16–P proposal would result in the addition Box 14, Anchorage, AK 99513–7587; and revision of Class E airspace at telephone number (907) 271–2796; fax: Nuiqsut, AK. (907) 271–2850; e-mail: DEPARTMENT OF TRANSPORTATION DATES: Comments must be received on [email protected]. Internet or before June 7, 2002. address: http://www.alaska.faa.gov/at or Federal Aviation Administration ADDRESSES: Send comments on the at address http://162.58.28.41/at. proposal in triplicate to: Manager, SUPPLEMENTARY INFORMATION: 14 CFR Part 71 Operations Branch, AAL–530, Docket Comments Invited [Airspace Docket No. 02–AAL–3] No. 02–AAL–3, Federal Aviation Administration, 222 West 7th Avenue, Interested parties are invited to Proposed Revision of Class E Box 14, Anchorage, AK 99513–7587. participate in this proposed rulemaking Airspace; Nuiqsut, AK The official docket may be examined by submitting such written data, views, in the Office of the Regional Counsel for or arguments as they may desire. AGENCY: Federal Aviation the Alaskan Region at the same address. Comments that provide the factual basis Administration (FAA), DOT. An informal docket may also be supporting the views and suggestions ACTION: Notice of proposed rulemaking. examined during normal business hours presented are particularly helpful in in the Office of the Manager, Operations developing reasoned regulatory SUMMARY: This action proposes to revise Branch, Air Traffic Division, at the decisions on the proposal. Comments Class E airspace at Nuiqsut, AK. Two address shown above and on the are specifically invited on the overall new Standard Instrument Approach Internet at Alaskan Region’s home page regulatory, aeronautical, economic,
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environmental, and energy-related enable IFR operations at Nuiqsut, AK to The Proposed Amendment aspects of the proposal. be contained within controlled airspace. In consideration of the foregoing, the Communications should identify the The FAA Instrument Flight Federal Aviation Administration airspace docket number and be Procedures Production and proposes to amend 14 CFR part 71 as submitted in triplicate to the address Maintenance Branch has developed two follows: listed above. Commenters wishing the new SIAPs for the Nuiqsut Airport. The FAA to acknowledge receipt of their new approaches are (1) Area Navigation PART 71— DESIGNATION OF CLASS comments on this notice must submit (Global Positioning System) (RNAV A, CLASS B, CLASS C, CLASS D, AND with those comments a self-addressed, GPS) Runway 4, original; (2) RNAV CLASS E AIRSPACE AREAS; stamped postcard on which the (GPS) Runway 22, original. The existing AIRWAYS; ROUTES; AND REPORTING following statement is made: GPS Runway 4 and GPS Runway 22 POINTS ‘‘Comments to Airspace Docket No. 02– SIAPs will be cancelled by this action. AAL–3.’’ The postcard will be date/time 1. The authority citation for 14 CFR Intersections on existing airways have stamped and returned to the part 71 continues to read as follows: also been created to initiate transitions commenter. All communications to the new SIAPs. The transitions Authority: 49 U.S.C. 106(g), 40103, 40113, received on or before the specified 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– require more airspace than currently closing date for comments will be 1963 Comp., p. 389. exists to contain Instrument Flight Rules considered before taking action on the (IFR) aircraft. § 71.1 [Amended] proposed rule. The proposal contained in this notice may be changed in light That airspace extending upward from 2. The incorporation by reference in of comments received. All comments 700 feet above the surface within a 6.5 14 CFR 71.1 of Federal Aviation submitted will be available for mile radius of the Nuiqsut Airport will Administration Order 7400.9J, Airspace examination in the Operations Branch, not be affected by this action. That Designations and Reporting Points, Air Traffic Division, Federal Aviation airspace extending upward from 1,200 dated September 1, 2001, and effective Administration, 222 West 7th Avenue, feet above the surface will be revised September 16, 2001, is to be amended Box 14, Anchorage, AK, both before and and expanded if this action is taken. as follows: after the closing date for comments. A The area would be depicted on * * * * * report summarizing each substantive aeronautical charts for pilot reference. Paragraph 6005 Class E airspace extending public contact with FAA personnel The coordinates for this airspace docket upward from 700 feet or more above the concerned with this rulemaking will be are based on North American Datum 83. surface of the earth filed in the docket. The Class E airspace areas designated as * * * * * 700/1200 foot transition areas are Availability of Notice of Proposed AAL AK E5 Nuiqsut, AK [Revised] Rulemakings (NPRM’s) published in paragraph 6005 in FAA Order 7400.9J, Airspace Designations Nuiqsut Airport, AK (Lat. 70°12′36″ N, long. 151°00′20″ W) An electronic copy of this document and Reporting Points, dated September may be downloaded, using a modem 1, 2001, and effective September 16, That airspace extending upward from 700 and suitable communications software, feet above the surface within a 6.5 mile 2001, which is incorporated by radius of the Nuiqsut Airport, and that from the FAA regulations section of the reference in 14 CFR 71.1. The Class E Fedworld electronic bulletin board airspace extending upward from 1,200 feet airspace designations listed in this above the surface from 13 miles north and 8 service (telephone: 703–321–3339) or document would be published miles south of the 249° bearing from the the Federal Register’s electronic subsequently in the Order. airport to 29 miles southwest, to 19 miles bulletin board service (telephone: 202– northwest of the airport on the 314° bearing 512–1661). The FAA has determined that this clockwise to the 352° bearing 13 miles north Internet users may reach the Federal proposed regulation only involves an of the airport. established body of technical Register’s Web page for access to * * * * * regulations for which frequent and recently published rulemaking Issued in Anchorage, AK, on April 10, documents at http:// routine amendments are necessary to _ keep them operationally current. It, 2002. www.access.gpo.gov/su docs/aces/ Stephen P. Creamer, aces140.html. therefore —(1) is not a ‘‘significant regulatory action’’ under Executive Assistant Manager, Air Traffic Division, Any person may obtain a copy of this Order 12866; (2) is not a ‘‘significant Alaskan Region. NPRM by submitting a request to the [FR Doc. 02–9847 Filed 4–22–02; 8:45 am] Operations Branch, AAL–530, Federal rule’’ under DOT Regulatory Policies BILLING CODE 4910–13–P Aviation Administration, 222 West 7th and Procedures (44 FR 11034; February Avenue, Box 14, Anchorage, AK 99513– 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as 7587. Communications must identify DEPARTMENT OF TRANSPORTATION the notice number of this NPRM. the anticipated impact is so minimal. Since this is a routine matter that will Persons interested in being placed on a Federal Aviation Administration mailing list for future NPRM’s should only affect air traffic procedures and air navigation, it is certified that this rule, contact the individual(s) identified in 14 CFR Part 71 the FOR FURTHER INFORMATION CONTACT when promulgated, will not have a section. significant economic impact on a [Airspace Docket No. 02–AAL–2] substantial number of small entities The Proposal under the criteria of the Regulatory Proposed Revision of Class E The FAA proposes to amend 14 CFR Flexibility Act. Airspace; Buckland, AK part 71 by revising Class E airspace at List of Subjects in 14 CFR Part 71 AGENCY: Federal Aviation Nuiqsut, AK. The intended effect of this Administration (FAA), DOT. proposal is to extend that Class E Airspace, Incorporation by reference, ACTION: Notice of proposed rulemaking. controlled airspace above 1,200 feet to Navigation (air).
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SUMMARY: This action proposes to revise commenter. All communications cancelled by this action. Intersections Class E airspace at Buckland, AK. Three received on or before the specified on existing airways have also been new Standard Instrument Approach closing date for comments will be created to initiate transitions to the new Procedures (SIAP) have been considered before taking action on the SIAPs. The transitions require more established for the Buckland Airport. proposed rule. The proposal contained airspace than currently exists to contain The existing Class E airspace at in this notice may be changed in light Instrument Flight Rules (IFR) aircraft. Buckland is insufficient to contain of comments received. All comments That airspace extending upward from aircraft executing the new SIAPs. submitted will be available for 700 feet above the surface within a 6.5 Adoption of this proposal would result examination in the Operations Branch, mile radius of the Buckland Airport will in the addition and revision of Class E Air Traffic Division, Federal Aviation not be affected by this action. That airspace at Buckland, AK. Administration, 222 West 7th Avenue, airspace extending upward from 1,200 DATES: Comments must be received on Box 14, Anchorage, AK, both before and feet above the surface will be revised or before June 7, 2002. after the closing date for comments. A and expanded if this action is taken. ADDRESSES: Send comments on the report summarizing each substantive The area would be depicted on proposal in triplicate to: public contact with FAA personnel aeronautical charts for pilot reference. Manager, Operations Branch, AAL– concerned with this rulemaking will be The coordinates for this airspace docket 530, Docket No. 02—AAL–2, Federal filed in the docket. are based on North American Datum 83. Aviation Administration, 222 West 7th Availability of Notice of Proposed The Class E airspace areas designated as Avenue, Box 14, Anchorage, AK 99513– Rulemakings (NPRM’s) 700/1200 foot transition areas are published in paragraph 6005 in FAA 7587. An electronic copy of this document The official docket may be examined Order 7400.9J, Airspace Designations may be downloaded, using a modem in the Office of the Regional Counsel for and Reporting Points, dated September and suitable communications software, the Alaskan Region at the same address. 1, 2001, and effective September 16, An informal docket may also be from the FAA regulations section of the 2001, which is incorporated by examined during normal business hours Fedworld electronic bulletin board reference in 14 CFR 71.1. The Class E in the Office of the Manager, Operations service (telephone: 703–321–3339) or airspace designations listed in this Branch, Air Traffic Division, at the the Federal Register’s electronic document would be published address shown above and on the bulletin board service (telephone: 202– subsequently in the Order. Internet at Alaskan Region’s home page 512–1661). The FAA has determined that this Internet users may reach the Federal at http://www.alaska.faa.gov/at or at proposed regulation only involves an Register’s Web page for access to address http://162.58.28.41/at. established body of technical recently published rulemaking FOR FURTHER INFORMATION CONTACT: regulations for which frequent and documents at http:// routine amendments are necessary to Derril Bergt, AAL–538, Federal Aviation www.access.gpo.gov/su_docs/aces/ Administration, 222 West 7th Avenue, keep them operationally current. It, aces140.html. therefore —(1) is not a ‘‘significant Box 14, Anchorage, AK 99513–7587; Any person may obtain a copy of this regulatory action’’ under Executive telephone number (907) 271–2796; fax: NPRM by submitting a request to the Order 12866; (2) is not a ‘‘significant (907) 271–2850; e-mail: Operations Branch, AAL–530, Federal rule’’ under DOT Regulatory Policies [email protected]. Internet Aviation Administration, 222 West 7th and Procedures (44 FR 11034; February address: http://www.alaska.faa.gov/at or Avenue, Box 14, Anchorage, AK 99513– 26, 1979); and (3) does not warrant at address http://162.58.28.41/at. 7587. Communications must identify preparation of a regulatory evaluation as SUPPLEMENTARY INFORMATION: the notice number of this NPRM. the anticipated impact is so minimal. Persons interested in being placed on a Comments Invited Since this is a routine matter that will mailing list for future NPRM’s should only affect air traffic procedures and air Interested parties are invited to contact the individual(s) identified in navigation, it is certified that this rule, participate in this proposed rulemaking the FOR FURTHER INFORMATION CONTACT when promulgated, will not have a by submitting such written data, views, section. or arguments as they may desire. significant economic impact on a Comments that provide the factual basis The Proposal substantial number of small entities supporting the views and suggestions The FAA proposes to amend 14 CFR under the criteria of the Regulatory presented are particularly helpful in part 71 by revising Class E airspace at Flexibility Act. developing reasoned regulatory Buckland, AK. The intended effect of List of Subjects in 14 CFR Part 71 decisions on the proposal. Comments this proposal is to extend that Class E are specifically invited on the overall controlled airspace above 1,200 feet to Airspace, Incorporation by reference, regulatory, aeronautical, economic, enable IFR operations at Buckland, AK Navigation (air). environmental, and energy-related to be contained within controlled The Proposed Amendment aspects of the proposal. airspace. Communications should identify the The FAA Instrument Flight In consideration of the foregoing, the airspace docket number and be Procedures Production and Federal Aviation Administration submitted in triplicate to the address Maintenance Branch has developed proposes to amend 14 CFR part 71 as listed above. Commenters wishing the three new SIAPs for the Buckland follows: FAA to acknowledge receipt of their Airport. The new approaches are (1) PART 71— DESIGNATION OF CLASS comments on this notice must submit Area Navigation (Goblal Positioning A, CLASS B, CLASS C, CLASS D, AND with those comments a self-addressed, System) ( RNAV GPS) Runway 10, CLASS E AIRSPACE AREAS; stamped postcard on which the original; (2) Non-directional Radio AIRWAYS; ROUTES; AND REPORTING following statement is made: Beacon/Distance Measuring Equipment POINTS ‘‘Comments to Airspace Docket No. 02— ( NDB/DME) Runway 10, original; and AAL–2.’’ The postcard will be date/time (3) NDB/DME Runway 28, original. The 1. The authority citation for 14 CFR stamped and returned to the existing GPS Runway 10 SIAP will be part 71 continues to read as follows:
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Authority: 49 U.S.C. 106(g), 40103, 40113, ADDRESSES: Mail comments to: gross revenues between $1 and $5 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Comments on Regulatory Flexibility Act million) are subject to the yearly 1963 Comp., p. 389. on MICS, National Indian Gaming requirement that independent certified § 71.1 [Amended] Commission, 1441 L St., NW, Suite public accountant testing occur. The 9100, Washington, D.C. 20005, Attn.: purpose of this testing is to measure the 2. The incorporation by reference in Michele F. Mitchell. Comments and gaming operation’s compliance with the 14 CFR 71.1 of Federal Aviation requests may also be sent by facsimile tribe’s minimum internal control Administration Order 7400.9J, Airspace to 202–632–7066. standards. The cost of compliance with Designations and Reporting Points, this requirement for a small gaming dated September 1, 2001, and effective FOR FURTHER INFORMATION CONTACT: operation is estimated at between September 16, 2001, is to be amended Michele F. Mitchell, at 202/632–7003 $3,000 and $5,000. The cost of this as follows: or, by fax, at 202/632–7066 (these are not toll-free numbers). report is minimal and does not create a * * * * * SUPPLEMENTARY INFORMATION: The significant economic effect on gaming Paragraph 6005 Class E airspace extending Commission published proposed operations. What little impact exists is upward from 700 feet or more above the revisions to its existing Minimum further offset because other regulations surface of the earth. Internal Control Standards on December require a yearly independent financial * * * * * 26, 2001. 66 FR 66500. The Commission audit that can be conducted at the same time. The results of the MICS audit are AAL AK E5 Buckland, AK [Revised] received numerous comments on the used by Commission and the tribes to Buckland Airport, AK proposed rule. As a result of one of the ° ′ ″ ° ′ ″ comments received, the Commission measure compliance with the standards. (Lat. 65 58 56 N, long. 161 09 07 W) For these reasons, the Commission has That airspace extending upward from 700 determined that certain Indian gaming operations, if they meet specific concluded that the proposed rule will feet above the surface within a 6.5 mile not have a significant economic impact radius of the Buckland Airport; and that definitional criteria, may qualify as airspace extending upward from 1,200 feet ‘‘small entities,’’ under the Regulatory on those small entities subject to the above the surface from 65°28′30″N, Flexibility Act (RFA). 5 U.S.C. 601(3). rule. 159°00′00″W to 65°57′45″N, 162°11′00″W to Section 603 of the RFA, requires If your gaming operation qualifies as 66°16′00″N, 162°15′00″W to 66°40′00″N, agencies to prepare an analysis a small entity and you would like to 160°03′00″W to 66°35°00″N, 160°27′00″W to comment on the Commission’s ° ′ ″ ° ′ ″ describing the impact of proposed rules 66 11 00 N, 159 00 00 W to point of on small entities. In the alternative, if an conclusions, please submit a comment beginning. agency determines that its rule will not explaining how and to what degree * * * * * have a significant impact on a these proposed revisions affect you and Issued in Anchorage, AK, on April 10, substantial number of small entities, it the extent of the economic impact on 2002. may certify to this determination and an your business. The Commission will Stephen P. Creamer, analysis is not required. (5 U.S.C. consider any comments received prior to issuing a final rule. Comments Assistant Manager, Air Traffic Division, 605(b)). Alaskan Region. There are approximately 315 Indian addressing the substantive provisions of the proposed revisions to 25 CFR part [FR Doc. 02–9848 Filed 4–22–02; 8:45 am] gaming operations across the country. 542 will not be considered at this time. BILLING CODE 4910–13–P We estimate that approximately 100 of the operations have gross revenues of The Commission will provide this less than $5 million. Of these, certification to the Chief Counsel for approximately 50 operations have gross Advocacy of the Small Business NATIONAL INDIAN GAMING revenues of under $1 million. Since the Administration as required by 5 U.S.C. COMMISSION proposed revisions will not apply to 605(b). gaming operations with gross revenues Dated: April 17, 2002. 25 CFR Part 542 under $1 million, only 50 small Montie R. Deer, RIN 3141–AA24 operations may be affected. Chairman. The proposed rule will not have a Elizabeth L. Homer, Minimum Internal Control Standards significant economic affect on these Vice Chair. operations because gaming operations AGENCY: National Indian Gaming must have internal controls to protect Teresa E. Poust, Commission. their assets. The costs involved in Commissioner. ACTION: Notice of certification of no implementing these controls are part of [FR Doc. 02–9861 Filed 4–22–02; 8:45 am] significant impact under the Regulatory the regular business costs incurred by BILLING CODE 7565–01–P Flexibility Act; request for comments. such an operation. The Commission’s regulations require SUMMARY: The National Indian Gaming tribes to adopt minimum standards, DEPARTMENT OF THE TREASURY Commission (Commission) is reopening below which, the assets of the gaming the comment period on our proposed operation would be placed at an Internal Revenue Service revisions to the Minimum Internal unacceptable risk of loss. We believe Control Standards, 66 Fed. Reg. 66500 that many Indian gaming operations 26 CFR Parts 1, 54 and 602 (December 26, 2001) for the limited have already implemented internal [REG–136193–01] purpose of giving small entities an control standards which are more opportunity to comment on the stringent than those contained in these RIN 1545–BA08 Commission’s certification that the regulations. proposed revisions will not have a Notice of Significant Reduction in the Under the proposed revisions, small Rate of Future Benefit Accrual significant economic impact on them. gaming operations grossing under $1 DATES: Comments must be received on million are exempted from MICS AGENCY: Internal Revenue Service (IRS), or before May 23, 2002. compliance. Tier A facilities (those with Treasury.
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ACTION: Notice of proposed rulemaking rulemaking have been submitted to the respond to, a collection of information and notice of public hearing. Office of Management and Budget for unless it displays a valid control review in accordance with the number assigned by the Office of SUMMARY: This document contains Paperwork Reduction Act of 1995 (44 Management and Budget. proposed regulations relating to the U.S.C. 3507(d)). Comments on the Books or records relating to a requirements of section 4980F of the collections of information should be collection of information must be Internal Revenue Code (Code) and sent to the Office of Management and retained as long as their contents may section 204(h) of the Employee Budget, Attn: Desk Officer for the become material in the administration Retirement Income Security Act of 1974 Department of the Treasury, Office of of any internal revenue law. Generally, (ERISA), as amended, which apply to Information and Regulatory Affairs, tax returns and tax return information defined benefit plans and to individual Washington, DC 20503, with copies to are confidential, as required by 26 account plans that are subject to the the Internal Revenue Service, Attn: IRS U.S.C. 6103. funding standards of section 412 of the Reports Clearance Officer, Background Code and section 302 of ERISA. These W:CAR:MP:FP:S Washington, DC 20224. regulations provide guidance on the Comments on the collection of Section 204(h) was added to ERISA by requirements for plan administrators to Information should be received by June section 11006(a) of the Single-Employer give notice of plan amendments to 24, 2002. Comments are specifically Pension Plan Amendments Act of 1986, adversely affected plan participants and requested concerning: Title XI of Public Law 99–272 (100 Stat. other parties when those amendments Whether the proposed collections of 237) and was amended by section provide for a significant reduction in the information are necessary for the proper 1879(u)(1) of the Tax Reform Act of rate of future benefit accrual or the performance of the functions of the 1986, Public Law 99–514 (100 Stat. elimination or significant reduction in Internal Revenue Service, including 2913) (TRA ’86). As amended by TRA an early retirement benefit or whether the information will have ’86, section 204(h) of ERISA (section retirement-type subsidy. These practical utility; 204(h)) required a plan administrator to regulations will affect retirement plan The accuracy of the estimated burden provide notice to participants and other sponsors and administrators, associated with the proposed collection interested persons after the date of participants in and beneficiaries of of information (see below); adoption and at least 15 days before the retirement plans, and employee How the quality, utility, and clarity of effective date of a plan amendment organizations representing retirement the information to be collected may be providing for a significant reduction in plan participants. This document also enhanced; the rate of future benefit accrual. provides a notice of public hearing on How the burden of complying with Pursuant to section 101(a) of these proposed regulations. the proposed collections of information Reorganization Plan No. 4 of 1978, 29 U.S.C. 1001nt, the Secretary of the DATES: Written or electronic comments may be minimized, including through Treasury generally has authority to issue must be received by July 22, 2002. the application of automated collection regulations under parts 2 and 3 of Requests to speak (with outlines of techniques or other forms of information subtitle B of title I of ERISA, including oral comments to be discussed) at the technology; and section 204 of ERISA. Under section 104 public hearing scheduled for August 15, Estimates of capital or start-up costs of Reorganization Plan No. 4, the 2002, at 10 a.m., must be received by and costs of operation, maintenance, Secretary of Labor retains enforcement July 22, 2002. and purchase of service to provide authority with respect to parts 2 and 3 ADDRESSES: Send submissions to: information. The collections of information in this of subtitle B of title I of ERISA, but, in CC:ITA:RU (REG–136193–01), room exercising such authority, is bound by 5226, Internal Revenue Service, POB proposed regulation are in § 54.4980F– 1. Responses to this collection of the regulations issued by the Secretary 7604, Ben Franklin Station, Washington, of the Treasury. On December 15, 1995, DC 20044. Submissions may be hand information are required in order to obtain a benefit. Specifically, this temporary regulations (TD 8631), under delivered Monday through Friday section 411 of the Internal Revenue between the hours of 8 a.m. and 5 p.m. information is required for a taxpayer who wants to amend a plan that is Code (Code), 26 U.S.C. 411, were to: CC:ITA:RU (REG–136193–01), published in the Federal Register (60 Courier’s Desk, Internal Revenue subject to the requirements of section 204(h) or section 4980F to significantly FR 64320), along with a notice of Service, 1111 Constitution Avenue, proposed rulemaking cross-referencing NW., Washington, DC. Alternatively, reduce the rate of future benefit accrual or significantly reduce an early the temporary regulations (60 FR taxpayers may submit comments 64401). Those temporary regulations electronically directly to the IRS retirement benefit or retirement-type subsidy. This information will be used addressed the notice requirements of Internet site at www.irs.gov/regs. The section 204(h). On December 14, 1998, public hearing will be held in the IRS to notify participants, alternate payees, and employee organizations of the final regulations (TD 8795) addressing Auditorium, Seventh Floor, Internal the notice requirements of section Revenue Service, 1111 Constitution amendment. Estimated total annual reporting 204(h) were published in the Federal Ave., NW., Washington, DC. burden: 40,000 hours. Register. See § 1.411(d)–6. FOR FURTHER INFORMATION CONTACT: The estimated annual burden per Section 659 of the Economic Growth Concerning the regulations, Janet A. respondent varies from one hour to 80 and Tax Relief Reconciliation Act of Laufer at (202) 622–6090 or Diane S. hours, depending on individual 2001, Public Law 107–16 (115 Stat. 38) Bloom at (202) 283–9888; concerning circumstances, with an estimated (EGTRRA) added section 4980F of the submissions, Donna Poindexter at (202) average of 10 hours. Code, which imposes an excise tax 622–7180 (not toll-free numbers). Estimated number of respondents: when a plan administrator fails to SUPPLEMENTARY INFORMATION: 4,000. provide timely notice of plan Estimated annual frequency of amendments that provide for a Paperwork Reduction Act responses: Once. significant reduction in the rate of The collections of information An agency may not conduct or future benefit accrual, and, for this contained in this notice of proposed sponsor, and a person is not required to purpose, treats the elimination or
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reduction of an early retirement benefit that eliminates or reduces an early advance to enable them to understand or retirement-type subsidy as a retirement benefit or retirement-type and consider the information before the reduction in the rate of future benefit subsidy is treated as an amendment that amendment goes into effect, and accrual. EGTRRA also amended section reduces the rate of future benefit allowing employers the ability to effect 204(h) to treat the elimination or accrual. The notice must contain changes to their plans for business reduction of an early retirement benefit sufficient information (as determined in reasons (such as to facilitate business or retirement-type subsidy as a accordance with regulations) to enable reorganizations or to permit small reduction in the rate of future benefit such individuals to understand the businesses the flexibility to reduce costs accrual. The requirement in section effect of the amendment and, except to promptly) within a reasonable time. The 204(h)(1) that notice be given after the the extent provided in regulations, must Treasury Department and IRS have date of adoption and at least 15 days in be provided within a reasonable time concluded, based on the history of the advance of the amendment’s effective before the effective date of the legislation, that the reason why the 15- date was replaced by a requirement amendment. Additionally, section day advance notice required under contained in both section 4980F(e)(3) 4980F(e)(2) of the Code and section section 204(h) as it existed prior to and section 204(h)(3) that, except as 204(h)(2) of ERISA authorize the EGTRRA was replaced by the provided in regulations, the notice be Secretary to provide special rules for ‘‘reasonable time’’ standard is because provided within a ‘‘reasonable time’’ plans covering fewer than 100 the 15-day standard was perceived as before the effective date of the participants and for plans that offer often being insufficient. Accordingly, amendment. The notice requirements in participants the option to choose these proposed regulations would section 4980F of the Code are between the new benefit formula and provide that a reasonable time generally essentially identical to the notice the old benefit formula. means at least 45 days before the requirements in section 204(h), as A plan amendment that is subject to effective date of the plan amendment. amended by EGTRRA. In addition, the notice requirements of section However, the proposed regulations section 204(h) has been amended by 4980F of the Code and section 204(h) of include certain special timing rules, EGTRRA to provide that, in the case of ERISA (section 204(h) amendment) may including rules that would allow section an egregious failure to meet the notice be subject to additional reporting and 204(h) notice to be provided as late as requirements, the provisions of the plan disclosure requirements under title I of 15 days before the effective date of the are applied as if the amendment entitled ERISA, such as the requirement to amendment in two types of cases. First, applicable individuals to the greater of provide a summary of material the proposed regulations would modifications (SMM) describing the the benefits to which they would have generally permit section 204(h) notice to amendment. Notice under section 4980F been entitled without regard to the be provided 15 days in advance for of the Code and section 204(h) of ERISA amendment or the benefits under the amendments adopted in connection (referred to in the proposed regulations plan as amended. with business mergers and acquisitions. as section 204(h) notice) must be The Job Creation and Worker Second, the proposed regulations provided in accordance with the Assistance Act of 2002, Public Law 107– include a 15-day advance notice provisions of these regulations even 147 (116 Stat. 21) included certain requirement with respect to though sections 102(a) and 104(b) of technical corrections to section 659 of amendments of small plans. Thus, the ERISA also may require that an SMM EGTRRA. 15-day standard that was in section These proposed regulations, when describing the plan amendment be furnished to participants covered under 204(h) before EGTRRA would generally finalized, would replace the Treasury continue to apply for small plans and regulations currently at § 1.411(d)–6 to the plan and beneficiaries receiving benefits under the plan. The Department for amendments adopted in connection reflect the EGTRRA changes outlined with business mergers and acquisitions above. Since the notice requirements of of Labor has advised the IRS that, at least until the effective date of final for which notice would have been section 204(h) are now also required required under section 204(h) as in under section 4980F of the Code, these regulations under section 4980F of the Code, a plan administrator that provides effect before EGTRRA. The proposed proposed regulations are issued under regulations provide an additional section 4980F, but apply for purposes of a section 204(h) notice to applicable individuals in accordance with these special timing rule that applies in the section 204(h), as well as for purposes case of an amendment that is adopted in of section 4980F. proposed regulations will be treated as having furnished those individuals with connection with a business merger or Explanation of Provisions an SMM regarding the section 204(h) acquisition involving a plan-to-plan transfer or merger and that affects only Statutory Requirements After EGTRRA amendment. The plan administrator is required to satisfy any other an early retirement benefit or Section 4980F(e) of the Code and requirements regarding the furnishing of retirement-type subsidy (but does not section 204(h) of ERISA require notice SMMs or updated summary plan reduce the rate of future benefit to be provided when a defined benefit descriptions, including, for example, accrual). In the case of such an plan or a money purchase pension or satisfaction of the requirement to amendment, the notice must be other individual account plan that is furnish an SMM to any other provided no later than 30 days after the subject to the funding standards of participants covered under the plan, effective date of the amendment. section 412 of the Code is amended to and to beneficiaries receiving benefits In the case of a plan amendment significantly reduce the rate of future under the plan, who are entitled to an which offers participants the option to benefit accrual. This notice must be SMM regarding the amendment. choose between the new benefit formula provided to participants and alternate and the old benefit formula, the general payees for whom the amendment is Time for Providing Section 204(h) timing rules would apply, except that reasonably expected to significantly Notice Under Proposed Regulations the proposed regulations would allow reduce the rate of future benefit accrual, The proposed regulations aim to certain additional information to be and to employee organizations strike a balance between giving provided at a later date, as described in representing such participants. For participants and other affected parties Content of Section 204(h) Notice of this purposes of these rules, an amendment section 204(h) notice long enough in preamble.
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Content of Section 204(h) Notice of the amendment. This description of examples are provided that show the Section 4980F(e)(2) of the Code and plan provisions might be similar to the approximate range of the reductions in section 204(h)(2) of ERISA require description of a plan’s benefit accrual cases other than this de minimis section 204(h) notice to be written in a formula in a summary plan description number. For amendments for which the manner calculated to be understood by that satisfies the requirements under maximum reduction occurs under the average plan participant and to § 2520.102–3 of the Department of Labor identifiable circumstances with provide sufficient information (as regulations. If the amendment applies proportionately smaller reductions in determined in accordance with by its terms differently to various other cases, the range of reductions can regulations) to allow applicable classes of employees (such as where the be illustrated by one example individuals to understand ‘‘the effect amendment applies differently illustrating the maximum reduction, depending on what division an with a statement that smaller reductions of’’ the amendment. The Conference report for EGTRRA employee is in), the explanation must also occur. Further, assuming that the states that the changes to the section include sufficient information to allow reduction varies from small to large 204(h) of ERISA notice requirements an affected participant to understand depending on service or other factors, as were expected to ‘‘provide for the general class or classes of might occur for an amendment that participants to whom the reduction results in a wear-away, two illustrative alternative disclosures rather than a applies. Also, these proposed examples may be provided showing the single disclosure methodology that may regulations clarify that, in cases in smallest likely reduction and the largest not fit all situations,’’ and also notes which a plan amendment affects likely reduction. ‘‘the need to consider the complex different classes of applicable Examples are not required to be based actuarial calculations and assumptions individuals differently, the plan on any particular form of payment (such involved in providing necessary administrator may provide different as a life annuity or a single sum), but disclosures.’’ H.R. Rep. 107–84, at 266. section 204(h) notices. A section 204(h) may be based on whatever form In addition, particular concern was notice cannot include materially false or appropriately illustrates the reduction. expressed about the effects of misleading information (or omit The examples may be based on any conversion of traditional defined benefit information so as to cause the reasonable assumptions, such as plans to cash balance or hybrid formula information provided to be misleading). assumptions relating to age, service, and plans and the effects of ‘‘wear-away’’ If a section 204(h) amendment compensation (and salary scale provisions under which participants reduces an early retirement benefit or assumptions for amendments that alter earn no additional benefits for a period retirement-type subsidy merely as a the compensation taken into account of time after conversion. H.R. Rep. 107– result of reducing the rate of future under the plan, such as a change from 84, at 266. benefit accrual, the section 204(h) notice a final pay plan to a career average pay The content requirements in these need not contain a separate description plan), but the section 204(h) notice must proposed regulations take into account of that reduction in the early retirement identify those assumptions. The this background and generally seek to benefit or retirement-type subsidy. proposed regulations include special ensure that adversely affected Additional information may be rules for determining whether an participants receive sufficient necessary to make the approximate amendment is reasonably expected to information to enable them to magnitude of the reduction apparent. In result in a wear-away period. understand the impact and magnitude cases in which it is not reasonable to The proposed regulations include of the changes being made to their expect that the approximate magnitude special rules for any case in which an pension plan, without imposing unduly of the reduction will be reasonably applicable individual can choose burdensome requirements on employers apparent from a narrative description, between the new formula and the old and while permitting latitude to one or more illustrative examples are formula. Under these rules, the employers in diverse businesses with required to be included in the notice. individual must be provided sufficient varying employee demographics to Thus, for example, illustrative examples information to enable the individual to determine how to communicate plan would be required for a change from a make an informed choice between the changes in an appropriately effective traditional defined benefit formula to a new and old benefit formulas. The manner. Accordingly, the proposed cash balance formula or a change that information to enable the individual to regulations provide general standards results in a period of time during which make an informed choice is not required for the content of a section 204(h) there are no accruals with regard to to be provided at the same time as notice, rather than containing specific normal retirement benefits or an early section 204(h) notice is otherwise requirements for each type of notice. retirement subsidy (a wear-away required to be provided, as long as it is The proposed regulations require a period). However, examples are not provided within a period that is section 204(h) notice to include required to illustrate circumstances reasonably contemporaneous with the sufficient information to allow under which a participant’s benefit may individual’s choice and that allows applicable individuals to understand increase as a result of the section 204(h) sufficient advance notice to enable the the effect of the plan amendment, amendment. individual to understand and consider including the approximate magnitude of Where an amendment may result in the additional information before the expected reduction. The type and reductions that vary in their impact on making the choice. amount of information necessary to applicable individuals, the examples A section 204(h) notice may include satisfy this standard varies depending must show the approximate range of the more information than is required, but on the nature of the change resulting reductions. However, the range of cannot include any false or misleading from the amendment. The information reductions need not include reductions information and cannot include so must be written in a manner calculated that are likely to occur in only a de much additional information that the to be understood by the average plan minimis number of cases if a narrative required information fails to be participant. The notice must describe statement is included to that effect (for provided in a manner calculated to the affected provisions prior to plan example, such a narrative might state come to the attention of applicable amendment, describe these provisions that larger or smaller reductions may individuals. While a notice for an as amended, and state the effective date occur in some other cases) and amendment converting a traditional
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final pay plan to a cash balance plan without regard to the amendment or the notice is not constrained by the must include an estimate of the future benefits under the plan as amended. provisions of the E–SIGN Act. normal retirement benefit of the Section 204(h)(6)(B) of ERISA provides Section 4980F(g) of the Code and participant in the illustration even if that, for this purpose, there is an section 204(h)(7) of ERISA give the that requires an estimate of future wage egregious failure to meet the section Secretary of the Treasury authority to increases, a section 204(h) notice could 204(h) notice requirements if such impose appropriate criteria for the also include alternative estimates. For failure is within the control of the plan provision of section 204(h) notice example, an alternative estimate could sponsor and is an intentional failure through electronic methods to ensure be based on an assumption that there (including any failure to promptly that applicable individuals will receive are no future wage increases. provide the required notice or The proposed regulations include information after the plan administrator section 204(h) notice electronically and several examples, including examples discovers an unintentional failure to are able to access it timely. As noted that are intended to show the meet notice requirements) or a failure to above, section 204(h) notice either must illustrations that are required for a cash provide most of the individuals with be provided through a method that balance conversion amendment that is a most of the information they are entitled results in actual receipt of the notice or based on a very simplified form of to receive. The proposed regulations the plan administrator must take conversion. For more complex provide that a failure is not egregious if appropriate and necessary measures conversion amendments, it is expected the plan administrator reasonably reasonably calculated to ensure that the that more illustrations may be determines, taking into account the method for providing the notice results appropriate. However, these regulations statute, administrative guidance, and in actual receipt. These proposed do not require section 204(h) notice to relevant facts and circumstances, that regulations would apply the same include different illustrative examples the reduction is not significant. The standard to the electronic delivery of to address the amount of the reduction proposed regulations clarify that, in the section 204(h) notice by requiring that for every demographic variation (e.g., case of a failure that is not egregious, the the method used result in actual receipt differences in compensation or years of failure will not preclude the amendment or that the plan administrator take service). from becoming effective. However, appropriate and necessary measures to Excise Tax Under Internal Revenue where there is a failure, whether or not ensure that any provision of the notice Code Section 4980F(c)(1) egregious, recourse may be available in electronic format results in actual under ERISA section 502 to, among Section 4980F(c)(1) of the Code receipt of the transmitted information. other things, recover benefits due under provides that no excise tax is imposed Additionally, the plan administrator the plan, enforce rights under the terms on a failure for any period during which must offer to provide each applicable it is established to the satisfaction of the of the plan, clarify rights to future individual a paper version of the notice Secretary that the employer (or other benefits under the plan, obtain equitable free of charge. Of course, the person responsible for the tax) did not relief, or otherwise redress such requirements of these regulations must know that the failure existed and violation. This might occur, for otherwise be satisfied when section exercised reasonable diligence to meet example, if a participant receives and 204(h) notice is provided in electronic the notice requirements. The proposed thus uses materially inadequate or format. The proposed regulations regulations provide that the misleading information in making a include a number of examples requirements of section 4980F(c)(1) of choice between the new and the old illustrating the rules applicable to the the Code are satisfied if and only if the benefit formula. electronic provision of a section 204(h) person that would be responsible for the Method of Delivery of Section 204(h) notice and also include a safe harbor, tax exercised reasonable diligence in Notice which has conditions similar to the attempting to deliver timely section consumer protection provisions of 204(h) notice to applicable individuals As a general standard, the section section 101(c) of the E–SIGN Act. 204(h) notice either must be provided (by the latest date permitted under the Under the proposed regulations, regulations) and believed that section through a method that results in actual receipt of the notice or the plan permitted electronic means for 204(h) notice was actually and timely furnishing section 204(h) notice would delivered to each applicable individual. administrator must take appropriate and necessary measures reasonably include e-mail, a site on the Internet, or An example of this illustrates that other electronic communications site, section 4980F(c)(1) of the Code would calculated to ensure that the method for and a DVD or CD that could generally apply to a situation in which a plan providing the notice results in actual be accessed using a computer at an administrator relies on an overnight receipt. Therefore, section 204(h) notice employee’s worksite. However, section delivery service to send materials to the may not be provided by ‘‘posting.’’ 204(h) notice information is not persons who are expected to hand Section 4980F(g) of the Code and considered provided merely because it deliver section 204(h) notice to section 204(h)(7) of ERISA, as amended participants, and the overnight delivery by EGTRRA, state that the Secretary of is available through a computer kiosk, service is late in making that delivery. the Treasury may by regulation allow even when the kiosk is at the 204(h) notice to be provided using new individual’s workplace and the ERISA Provisions Regarding Egregious technologies. Because those provisions individual is otherwise provided notice Failures specifically relate to electronic delivery of the availability of information at the Section 204(h)(6)(A) of ERISA, as and were enacted after enactment of the kiosk, because, like posting, providing amended by EGTRRA, provides that in Electronic Signatures in Global and such information through a kiosk places the case of an egregious failure to meet National Commerce Act (114 Stat. 464) a burden on participants to seek out the the notice requirements, the provisions (2000) (E-SIGN Act), the authority information. Nevertheless, information of the plan are applied as if the plan conferred by those provisions on the made available through a kiosk is amendment entitled applicable Secretary to decide whether to permit, considered provided to those applicable individuals to the greater of the benefits and under what conditions to permit, individuals who actually access the to which they would have been entitled electronic delivery of section 204(h) information through the kiosk.
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Proposed Effective Date submitted to the Chief Counsel for 26 CFR Part 54 These proposed regulations would Advocacy of the Small Business Excise taxes, Pensions, Reporting and apply to amendments that go into effect Administration for comment on its recordkeeping requirements. impact on small business. on or after the date that is 120 days after 26 CFR Part 602 publication of final regulations in the Comments and Public Hearing Federal Register. The proposed Reporting and recordkeeping regulations also restate the general Before these proposed regulations are requirements. adopted as final regulations, statutory effective date and special Adoption of Amendments to the consideration will be given to any effective date rules that are in section Regulations 659(c) of EGTRRA. Thus, the proposed written comments (a signed original and regulations include the transition rule of (8) copies) or electronic comments that Accordingly, 26 CFR parts 1, 54 and section 659(c)(2) of EGTRRA that are submitted timely to the IRS. The 602 are proposed to be amended as provides that, for amendments taking Treasury Department and IRS follows: specifically request comments on the effect on or after the date of enactment PART 1—INCOME TAXES of EGTRRA (June 7, 2001) and prior to clarity of the proposed rules and how the effective date of the final they may be made easier to understand. Paragraph 1. The authority citation regulations, the notice requirements of All comments will be available for for part 1 continues to read in part as section 4980F(e)(2) and (3) of the Code, public inspection and copying. follows: and of section 204(h) of ERISA as A public hearing has been scheduled Authority: 26 U.S.C. 7805 * * * amended by EGTRRA, are treated as for August 15, 2002, beginning at 10 satisfied if the plan administrator makes a.m., in the IRS Auditorium, Seventh § 1.411(d)(6) [Removed] a reasonable, good faith effort to comply Floor, Internal Revenue Service, 1111 Par. 2. Section 1.411(d)–6 is removed with those requirements. Constitution Avenue, NW., Washington, DC. Due to building security PART 54—PENSION EXCISE TAXES Special Analyses procedures, visitors must enter at the Par. 3. The authority citation for part It has been determined that this main entrance, located at 1111 54 is amended by adding the following Treasury decision is not a significant Constitution Avenue, NW. All visitors citation in numerical order to read as regulatory action as defined in must present photo identification to follows: Executive Order 12866. Therefore, a enter the building. Because of access regulatory assessment is not required. It restrictions, visitors will not be Authority: 26 U.S.C. 7805 * * * § 54.4980F–1 is also issued under 26 also has been determined that section admitted beyond the immediate U.S.C. 4980. * * * 553(b) of the Administrative Procedure entrance area more than 15 minutes Par.4. Section 54.4980F–1 is added to Act (5 U.S.C. chapter 5) does not apply before the hearing starts. For read as follows: to these regulations. information about having your name It is hereby certified that the placed on the building access list to § 54.4980F–1 Notice requirements for collection of information in these attend the hearing, see the FOR FURTHER certain pension plan amendments proposed regulations will not have a INFORMATION CONTACT portion of this significantly reducing benefit accruals. significant economic impact on a preamble. (a) Table of contents. This paragraph substantial number of small entities. The rules of 26 CFR 601.601(a)(3) contains a list of the questions in This certification is based upon the fact apply to the hearing. Persons who wish § 54.4980F–1(b). that small entities generally do not have to present oral comments must submit Q–1. What are the notice requirements of very complex benefit structures in their written or electronic comments and an section 4980F(e) of the Internal Revenue plans, or many different classes of outline of the topics to be discussed and Code and section 204(h) of ERISA? participants who will be differently Q–2. What are the differences between time to be devoted to each topic section 4980F and section 204(h)? affected by an amendment reducing the (preferably a signed original and eight rate of future benefit accrual. Small Q–3. What is an ‘‘applicable pension plan’’ (8) copies) by June 18, 2002. A period to which section 4980F of the Internal entities also have fewer employees, and of 10 minutes will be allotted to each Revenue Code and section 204(h) apply? so those small entities that are required person for making comments. An Q–4. What is ‘‘section 204(h) notice’’ and to provide section 204(h) notice need to agenda showing the scheduling of the what is a ‘‘section 204(h) amendment’’? provide it to fewer individuals. speakers will be prepared after the Q–5. For which amendments is section Accordingly, the time required for them deadline for receiving outlines has 204(h) notice required? to prepare and provide section 204(h) Q–6. What is an amendment that reduces passed. Copies of the agenda will be the rate of future benefit accrual or reduces notice will usually be modest. available free of charge at the hearing. Furthermore, because most small an early retirement benefit or retirement-type Drafting Information subsidy for purposes of determining whether entities will only be affected when they section 204(h) notice is required? amend the retirement plans they The principal author of these Q–7. What plan provisions are taken into sponsor to reduce or eliminate benefits, regulations is Janet A. Laufer, Office of account in determining whether an and most small entities will not so Division Counsel/Associate Chief amendment is a section 204(h) amendment? amend the retirement plans frequently, Counsel (Tax Exempt and Government Q–8. What is the basic principle used in determining whether a reduction in the rate it is generally expected that most small Entities). However, other personnel entities would be required to provide of future benefit accrual or an early from the IRS and Treasury Department retirement benefit or retirement-type subsidy section 204(h) notice only once over the participated in their development. course of several years. Therefore, a is significant for purposes of section 204(h)? List of Subjects Q–9. When must section 204(h) notice be Regulatory Flexibility Analysis under provided? the Regulatory Flexibility Act (5 U.S.C. 26 CFR Part 1 Q–10. To whom must section 204(h) notice chapter 6) is not required. Pursuant to be provided? section 7805(f) of the Code, this notice Income taxes, Reporting and Q–11. What information is required to be of proposed rulemaking will be recordkeeping requirements. provided in a section 204(h) notice?
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Q–12. What special rules apply if Growth and Tax Relief Reconciliation a plan under which no employees are participants can choose between the old and Act of 2001, Public Law 107–16 (115 participants covered under the plan, as new benefit formulas? Stat. 38) (2001) (EGTRRA). EGTRRA described in § 2510.3–3(b) of the Q–13. How may section 204(h) notice be also amended section 204(h) to, among Department of Labor regulations, and provided? Q–14. What are the consequences if a plan other things, extend the notice which has fewer than 100 participants. administrator fails to provide section 204(h) requirement to a plan amendment that Q–4. What is ‘‘section 204(h) notice’’ notice? eliminates or significantly reduces an and what is a ‘‘section 204(h) Q–15. What are some of the rules that early retirement benefit or retirement- amendment’’? apply with respect to the excise tax under type subsidy, even if it does not A–4. Section 204(h) notice is notice section 4980F? significantly reduce the rate of future that complies with section 4980F(e), Q–16. How do section 4980F and section benefit accrual. The notice requirements section 204(h)(1), and this section. A 204(h) apply when a business is sold? of section 4980F generally are parallel to section 204(h) amendment is an Q–17. How are amendments to cease amendment for which section 204(h) accruals and terminate a plan treated under the notice requirements of section section 4980F and section 204(h)? 204(h), as amended by EGTRRA. notice is required under this section. Q–18. What is the effective date of section However, the consequences of the two Q–5. For which amendments is 4980F of the Internal Revenue Code, section provisions differ: section 4980F imposes section 204(h) notice required? 204(h) of ERISA, as amended by EGTRRA, an excise tax on a failure to satisfy the A–5. (a) Significant reduction in the and these regulations? notice requirements, while section rate of future benefit accrual. Section (b) Questions and answers. The 204(h)(6), as amended by EGTRRA, 204(h) notice is required for an questions and answers are as follows: contains a special rule with respect to amendment to an applicable pension Q–1. What are the notice egregious failures. See Q&A–14 and plan that provides for a significant requirements of section 4980F(e) of the Q&A–15 of this section. Except to the reduction in the rate of future benefit Internal Revenue Code and section extent specifically indicated, these accrual, including a cessation of benefit 204(h) of ERISA? regulations apply both to section 4980F accrual. A–1. (a) Requirements of Internal and to section 204(h). (b) Early retirement benefits and Revenue Code section 4980F(e) and Q–3. What is an ‘‘applicable pension retirement-type subsidies. Section ERISA section 204(h). Section 4980F of plan’’ to which section 4980F and 204(h) notice is required for an the Internal Revenue Code (section section 204(h) apply? amendment to an applicable pension 4980F) and section 204(h) of the A–3. (a) In general. Section 4980F and plan that provides for the significant Employee Retirement Income Security section 204(h) apply to an applicable reduction of an early retirement benefit Act of 1974, as amended (ERISA), 29 pension plan. For purposes of section or retirement-type subsidy. For U.S.C. 1054(h) (section 204(h)) each 4980F, an applicable pension plan purposes of this section, early generally requires notice of an means a defined benefit plan qualifying retirement benefit and retirement-type amendment to an applicable pension under section 401(a) or 403(a) of the subsidy mean early retirement benefits plan that either provides for a Internal Revenue Code, or an individual and retirement-type subsidies within significant reduction in the rate of account plan that is subject to the the meaning of section 411(d)(6)(B)(i). future benefit accrual or that eliminates funding standards of section 412 of the (c) Elimination or cessation of or significantly reduces an early Internal Revenue Code. For purposes of benefits. For purposes of this section, retirement benefit or retirement-type section 204(h), an applicable pension the terms reduce or reduction include subsidy. The notice is required to be plan means a defined benefit plan that eliminate or cease or elimination or provided to plan participants or is subject to part 2 of subtitle B of title cessation. alternate payees who are applicable I of ERISA, or an individual account (d) Delegation of authority to individuals (as defined in Q&A–10 of plan that is subject to such part 2 and Commissioner. The Commissioner may this section) and to certain employee to the funding standards of section 412 provide in revenue rulings, notices, or organizations. The plan administrator of the Internal Revenue Code. other guidance published in the Internal must generally provide the notice before Accordingly, individual account plans Revenue Bulletin (see § 601.601(d)(2) of the effective date of the plan that are not subject to the funding this chapter) that section 204(h) notice amendment. Q&A–9 of this section sets standards of section 412 of the Internal need not be provided for plan forth the time frames for providing Revenue Code, such as profit-sharing amendments otherwise described in notice, Q&A–11 of this section sets forth and stock bonus plans, are not paragraph (a) or (b) of this Q&A–5 that the content requirements for the notice, applicable pension plans to which the Commissioner determines to be and Q&A–12 of this section contains section 4980F or section 204(h) apply. necessary or appropriate, as a result of special rules for cases in which Similarly, a defined benefit plan that changes in the law, to maintain participants can choose between the old neither qualifies under section 401(a) or compliance with the requirements of the and new benefit formulas. 403(a) of the Internal Revenue Code nor Internal Revenue Code (including (b) Other notice requirements. Other is subject to part 2 of subtitle B of title requirements for tax qualification), provisions of law may require that I of ERISA is not an applicable pension ERISA, or other applicable federal law. certain parties be notified of a plan plan. Further, neither a governmental Q–6. What is an amendment that amendment. See, for example, sections plan (within the meaning of section reduces the rate of future benefit accrual 102 and 104 of ERISA, and the 414(d) of the Internal Revenue Code), or reduces an early retirement benefit or regulations thereunder, for requirements nor a church plan (within the meaning retirement-type subsidy for purposes of relating to summary plan descriptions of section 414(e) of the Internal Revenue determining whether section 204(h) and summaries of material Code) with respect to which no election notice is required? modifications. has been made under section 410(d) of A–6. (a) In general. For purposes of Q–2. What are the differences the Internal Revenue Code is an determining whether section 204(h) between section 4980F and section applicable pension plan. notice is required, an amendment 204(h)? (b) Section 204(h) notice not required reduces the rate of future benefit accrual A–2. Section 4980F was added to the for small plans covering no employees. or reduces an early retirement benefit or Internal Revenue Code by the Economic Section 204(h) notice is not required for retirement-type subsidy only as
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provided in paragraph (b) or (c) of this type subsidies of participants or 50% of final average compensation times a Q&A–6. alternate payees must be taken into fraction (not in excess of one), the numerator (b) Reduction in rate of future benefit account in determining whether an of which equals the number of years of accrual—(1) Defined benefit plans. For participation in the plan and the amendment is a section 204(h) denominator of which is 20. A plan purposes of section 4980F and section amendment. For example, plan amendment is adopted that changes the 204(h), an amendment to a defined provisions that may affect the rate of numerator or denominator of that fraction. benefit plan reduces the rate of future future benefit accrual include the dollar (ii) Conclusion. The plan amendment must benefit accrual only if it is reasonably amount or percentage of compensation be taken into account in determining whether expected to reduce the amount of the on which benefit accruals are based; the there has been a reduction in the rate of future annual benefit commencing at definition of service or compensation future benefit accrual. normal retirement age for benefits taken into account in determining an Q–8. What is the basic principle used accruing for a year. For this purpose, the employee’s benefit accrual; the method in determining whether a reduction in annual benefit commencing at normal of determining average compensation the rate of future benefit accrual or a retirement age is the benefit payable in for calculating benefit accruals; the reduction in an early retirement benefit the form in which the terms of the plan definition of normal retirement age in a or retirement-type subsidy is significant express the accrued benefit (or, in the defined benefit plan; the exclusion of for purposes of section 204(h)? case of a plan in which the accrued current participants from future A–8. (a) General rule. Whether an benefit is not expressed in the form of participation; benefit offset provisions; amendment reducing the rate of future an annual benefit commencing at minimum benefit provisions; the benefit accrual or reducing an early normal retirement age, the benefit formula for determining the amount of retirement benefit or retirement-type payable in the form of a single life contributions and forfeitures allocated subsidy provides for a reduction that is annuity commencing at normal to participants’ accounts in an significant for purposes of section retirement age that is the actuarial individual account plan; in the case of 204(h) is determined based on equivalent of the accrued benefit a plan using permitted disparity under reasonable expectations taking into expressed under the terms of the plan, section 401(l) of the Internal Revenue account the relevant facts and as determined in accordance with Code, the amount of disparity between circumstances at the time the section 411(c)(3) of the Internal Revenue the excess benefit percentage or excess amendment is adopted. (b) Application for determining Code). contribution percentage and the base significant reduction in the rate of (2) Individual account plans. For benefit percentage or base contribution future benefit accrual. For a defined purposes of section 4980F and section percentage (all as defined in section benefit plan, the determination of 204(h), an amendment to an individual 401(l) of the Internal Revenue Code); whether an amendment provides for a account plan reduces the rate of future and the actuarial assumptions used to benefit accrual only if it is reasonably significant reduction in the rate of determine contributions under a target expected to reduce the amounts future benefit accrual is made by benefit plan (as defined in § 1.401(a)(4)– allocated in the future to participants’ comparing the amount of the annual 8(b)(3)(i) of this chapter). Plan accounts for a year. Changes in the benefit commencing at normal provisions that may affect early investments or investment options retirement age, as determined under retirement benefits or retirement-type under an individual account plan are Q&A–6(b)(1) of this section, under the subsidies include the right to receive not taken into account for this purpose. terms of the plan as amended with the (3) Determination of rate of future payment of benefits after severance from amount of the annual benefit benefit accrual. The rate of future employment and before normal commencing at normal retirement age, benefit accrual for purposes of this retirement age and actuarial factors used as determined under Q&A–6(b)(1) of paragraph (b) is determined without in determining optional forms for this section, under the terms of the plan regard to optional forms of benefit distribution of retirement benefits. prior to amendment. For an individual within the meaning of § 1.411(d)–4, (b) Plan provisions not taken into account plan, the determination of Q&A–1(b) of this chapter (other than the account. Plan provisions that do not whether an amendment provides for a annual benefit described in paragraph affect the rate of future benefit accrual significant reduction in the rate of (b)(1) of this Q&A–6). The rate of future of participants or alternate payees are future benefit accrual is made in benefit accrual is also determined not taken into account in determining accordance with Q&A–6(b)(2) of this without regard to ancillary benefits and whether there has been a reduction in section by comparing the amounts to be other rights or features as defined in the rate of future benefit accrual. allocated in the future to participants’ § 1.401(a)(4)–4(e) of this chapter. Further, any benefit that is not a section accounts under the terms of the plan as (c) Reduction of early retirement 411(d)(6) protected benefit as described amended with the amounts to be benefits or retirement-type subsidies. in § 1.411(d)–4, Q&A–1(d) of this allocated in the future to participants’ For purposes of section 4980F and chapter, or that is a section 411(d)(6) accounts under the terms of the plan section 204(h), an amendment reduces protected benefit that may be eliminated prior to amendment. an early retirement benefit or or reduced as permitted under (c) Application to certain retirement-type subsidy only if it is § 1.411(d)–4, Q&A–2(a) or (b) of this amendments reducing early retirement reasonably expected to eliminate or chapter, is not taken into account in benefits or retirement-type subsidies. reduce an early retirement benefit or determining whether an amendment is Because section 204(h) notice is retirement-type subsidy. a section 204(h) amendment. Thus, for required only for reductions that are Q–7. What plan provisions are taken example, provisions relating to vesting significant, section 204(h) notice is not into account in determining whether an schedules or the right to make after-tax required for an amendment that reduces amendment is a section 204(h) contributions or elective deferrals are an early retirement benefit or amendment? not taken into account. retirement-type subsidy if the A–7. (a) Plan provisions taken into (c) Example. The following example amendment is permitted under the third account. All plan provisions that may illustrates the rules in this Q&A–7: sentence of section 411(d)(6)(B) of the affect the rate of future benefit accrual, Example. (i) Facts. A defined benefit plan Internal Revenue Code and regulations early retirement benefits, or retirement- provides a normal retirement benefit equal to thereunder (relating to the elimination
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or reduction of benefits or subsidies (d) Timing rule for amendments accrue benefits under the plan at severance which create significant burdens or permitting participant choice. In from employment with the employer. There complexities for the plan and plan general, section 204(h) notice of a are no alternate payees and employees are participants unless the amendment section 204(h) amendment that provides not represented by an employee organization. The plan is amended effective as of January adversely affects the rights of any applicable individuals with a choice 1, 2005 to significantly reduce the rate of participant in a more than de minimis between the old and the new benefit future benefit accrual. manner). formulas (as described in Q&A–12 of (ii) Conclusion. Section 204(h) notice is Q–9. When must section 204(h) notice this section) must be provided in only required to be provided to individuals be provided? accordance with the time period who, on January 1, 2005, have completed at A–9. (a) 45-day general rule. Except as applicable under paragraphs (a) through least 1 year of service and are employed by described in paragraphs (b) and (c) of (c) of this Q&A–9. See Q&A–12 of this the employer. this Q&A–9, section 204(h) notice must section for additional guidance Example 2. (i) Facts. The facts are the same be provided at least 45 days before the regarding section 204(h) notice in as in Example 1, except that the sole effect effective date of any section 204(h) connection with participant choice. of the plan amendment is to alter the pre- amendment. See paragraph (d) of this Q–10. To whom must section 204(h) amendment plan provisions under which Q&A–9 for special rules for amendments notice be provided? benefits payable to an employee who retires permitting participant choice. A–10. (a) In general. Section 204(h) after 20 or more years of service are (b) 15-day rule for small plans. Except unreduced for commencement before normal notice must be provided to each retirement age. The amendment requires 30 for amendments described in paragraph applicable individual and to each or more years of service in order for benefits (c)(2) of this Q&A–9, in the case of a employee organization representing commencing before normal retirement age to small plan, section 204(h) notice must participants who are applicable be unreduced, but the amendment only be at least 15 days before the effective individuals. A special rule is provided applies for future benefit accruals. date of any section 204(h) amendment. in paragraph (d) of this Q&A–10. (ii) Conclusion. Section 204(h) notice is For purposes of this section, a small (b) Applicable individual. Applicable only required to be provided to individuals plan is a plan that the plan individual means each participant in who, on January 1, 2005, have completed at administrator reasonably expects to the plan, and any alternate payee, least 1 year of service but less than 30 years have, on the effective date of the section whose rate of future benefit accrual of service, are employed by the employer, 204(h) amendment, fewer than 100 have not attained normal retirement age, and under the plan is reasonably be will have completed 20 or more years of participants who have an accrued expected to be significantly reduced, or service before normal retirement age if their benefit under the plan. for whom an early retirement benefit or employment continues to normal retirement (c) Special timing rule for business retirement-type subsidy under the plan age. transactions—(1) 15-day rule for section may reasonably be expected to be Example 3. (i) Facts. A plan is amended 204(h) amendment in connection with significantly reduced, by the section to reduce significantly the rate of future an acquisition or disposition. Except for 204(h) amendment. benefit accrual for all current employees who amendments described in paragraph (c) Alternate payee. Alternate payee are participants. Based on the facts and (c)(2) of this Q&A–9, if a section 204(h) means a beneficiary who is an alternate circumstances, it is reasonable to expect that amendment is adopted in connection payee (within the meaning of section the amendment will not reduce the rate of with an acquisition or disposition, 414(p)(8) of the Internal Revenue Code) future benefit accrual of former employees section 204(h) notice must be provided under an applicable qualified domestic who are currently receiving benefits or of former employees who are entitled to at least 15 days before the effective date relations order (within the meaning of of the section 204(h) amendment. deferred vested benefits. section 414(p)(1)(A) of the Internal (ii) Conclusion. The plan administrator is (2) Later notice permitted for section Revenue Code). not required to provide section 204(h) notice 204(h) amendment significantly (d) Designees. Section 204(h) notice to any former employees. reducing early retirement benefit or may be provided to a person designated Example 4. (i) Facts. The facts are the retirement-type subsidies in connection in writing by an applicable individual same as in Example 3, except that the plan with certain plan transfers, mergers, or or by an employee organization covers two groups of alternate payees. The consolidations. If a section 204(h) representing participants who are alternate payees in the first group are entitled amendment is adopted with respect to applicable individuals, instead of being to a certain percentage or portion of the liabilities that are transferred to another provided to that applicable individual former spouse’s accrued benefit and, for this plan in connection with a transfer, or employee organization. Any purpose, the accrued benefit is determined at merger, or consolidation of assets or designation of a representative made the time the former spouse begins receiving liabilities as described in section 414(l) retirement benefits under the plan. The through an electronic method that alternate payees in the second group are of the Internal Revenue Code and satisfies standards similar to those of entitled to a certain percentage or portion of § 1.414(l)–1 of this chapter, the Q&A–13(c)(1) of this section satisfies the the former spouse’s accrued benefit and, for amendment is adopted in connection requirement that a designation be in this purpose, the accrued benefit was with an acquisition or disposition, and writing. determined at the time the qualified domestic the amendment significantly reduces an (e) Facts and circumstances test. relations order was issued by the court. early retirement benefit or retirement- Whether a participant or alternate payee (ii) Conclusion. It is reasonable to expect type subsidy, but does not significantly is an applicable individual is that the benefits to be received by the second reduce the rate of future benefit accrual, determined based on all relevant facts group of alternate payees will not be affected then section 204(h) notice must be and circumstances at the time the by any reduction in a former spouse’s rate of future benefit accrual. Accordingly, the plan provided no later than 30 days after the section 204(h) notice must be provided administrator is not required to provide effective date of the section 204(h) (or is provided, if earlier). section 204(h) notice to the alternate payees amendment. (f) Examples. The following examples in the second group. (3) Definition of acquisition or illustrate the rules in this Q&A–10: Example 5. (i) Facts. A plan covers hourly disposition. For purposes of this Example 1. (i) Facts. A defined benefit plan employees and salaried employees. The plan paragraph (c), see § 1.410(b)–2(f) of this requires an individual to complete 1 year of provides the same rate of benefit accrual for chapter for the definition of acquisition service to become a participant who can both groups. The employer amends the plan or disposition. accrue benefits, and participants cease to to reduce significantly the rate of future
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benefit accrual of the salaried employees include a description of the benefit or one or more illustrative examples only. At that time, it is reasonable to expect allocation formula prior to the showing the approximate magnitude of that only a small percentage of hourly amendment, a description of the benefit the reduction in the example. Thus, employees will become salaried in the future. or allocation formula under the plan as illustrative examples are required for a (ii) Conclusion. The plan administrator is amended, and the effective date of the change from a traditional defined not required to provide section 204(h) notice to the participants who are currently hourly amendment. benefit formula to a cash balance employees. (ii) Reduction in early retirement formula or a change that results in a benefit or retirement-type subsidy. In Example 6. (i) Facts. A plan covers period of time during which there are employees in Division M and employees in the case of an amendment that reduces no accruals (or minimal accruals) with Division N. The plan provides the same rate an early retirement benefit or regard to normal retirement benefits or of benefit accrual for both groups. The retirement-type subsidy (other than as a an early retirement subsidy (a wear- employer amends the plan to reduce result of an amendment reducing the away period). significantly the rate of future benefit accrual rate of future benefit accrual), the notice (B) Examples must bound the range of of employees in Division M. At that time, it must describe how the early retirement reductions. Where an amendment is reasonable to expect that in the future only benefit or retirement-type subsidy is results in reductions that vary (as would a small percentage of employees in Division calculated from the accrued benefit occur for an amendment converting a N will be transferred to Division M. before the amendment, how the early traditional defined benefit formula to a (ii) Conclusion. The plan administrator is retirement benefit or retirement-type cash balance formula or an amendment not required to provide section 204(h) notice to the participants who are employees in subsidy is calculated from the accrued that results in a wear-away period) , the Division N. benefit after the amendment, and the illustrative example(s) provided in Example 7. (i) Facts. The facts are the effective date of the amendment. For accordance with this paragraph same facts as in Example 6, except that at the example, if, for a plan with a normal (a)(3)(iii) must show the approximate time the amendment is adopted, it is retirement age of 65, the change is from range of the reductions. However, any expected that thereafter Division N will be an unreduced normal retirement benefit reductions that are likely to occur in merged into Division M in connection with at age 55 to an unreduced normal only a de minimis number of cases are a corporate reorganization (and the retirement benefit at age 60 for benefits not required to be taken into account in employees in Division N will become subject accrued in the future, with an actuarial determining the range of the reductions to the plan’s amended benefit formula reduction to apply for benefits accrued if a narrative statement is included to applicable to the employees in Division M). in the future to the extent that the early that effect and examples are provided (ii) Conclusion. In this case, the plan retirement benefit begins before age 60, that show the approximate range of the administrator must provide section 204(h) notice to the participants who are employees the notice must state that and specify reductions in other cases. Amendments in Division M and to the participants who are the factors that apply in calculating the for which the maximum reduction employees in Division N. actuarial reduction (e.g., a 5% per year occurs under identifiable circumstances, reduction applies for early retirement with proportionately smaller reductions Q–11. What information is required to before age 60). in other cases, may be illustrated by one be provided in section 204(h) notice? (3) Additional required information— example illustrating the maximum A–11. (a) Explanation of (i) Standard for additional information. reduction, with a statement that smaller amendment—(1) In general. Section In cases in which it is not reasonable to reductions also occur. Further, 204(h) notice must include sufficient expect that the approximate magnitude assuming that the reduction varies from information to allow applicable of the reduction will be reasonably small to large depending on service or individuals to understand the effect of apparent from the description provided other factors, two illustrative examples the plan amendment, including the in accordance with in paragraph (a)(2) may be provided showing the smallest approximate magnitude of the expected of this Q&A–11, further information is likely reduction and the largest likely reduction. To the extent any expected required. This requirement can be reduction. reduction is not uniformly applicable to satisfied by furnishing additional (C) Assumptions used in examples. all participants, the notice must either narrative information, as described in The examples required under this identify the general classes of paragraph (a)(3)(ii) of this Q&A–11; by paragraph (a)(3)(iii) are not required to participants to whom the reduction is furnishing illustrative examples, as be based on any particular form of expected to apply, or by some other described in paragraph (a)(3)(iii) of this payment (such as a life annuity or a method include sufficient information Q&A–11; or through a combination of single sum), but may be based on to allow each applicable individual these. whatever form appropriately illustrates receiving the notice to determine which (ii) Additional narrative information. the reduction. The examples generally reductions are expected to apply to that Further narrative explanation of the may be based on any reasonable individual. The information must be effect of the difference between the old assumptions (e.g., assumptions relating written in a manner calculated to be and new formulas or benefit calculation to the representative participant’s age, understood by the average plan may be provided to make the years of service, and compensation, participant and to apprise the applicable approximate magnitude of the reduction along with any interest rate and individual of the significance of the apparent. mortality table used in the illustrations, notice. The type and amount of (iii) Illustrative examples—(A) as well as salary scale assumptions used information necessary to satisfy these Requirement generally. In cases in in the illustrations for amendments that standards will vary depending on the which it is not reasonable to expect that alter the compensation taken into nature of the change resulting from the the approximate magnitude of the account under the plan), but the section amendment, as described further in reduction will be reasonably apparent 204(h) notice must identify those paragraphs (a)(2) and (3) of this Q&A– from the description provided in assumptions. However, if a plan’s 11. accordance with in paragraph (a)(2) of benefit provisions include a factor that (2) Required narrative—(i) Reduction this Q&A–11 (plus any additional varies over time (such as a variable in rate of future benefit accrual. In the narrative information provided in interest rate), the determination of case of an amendment reducing the rate accordance with paragraph (a)(3)(ii) of whether an amendment is reasonably of future benefit accrual, the notice must this Q&A–11), the notice must include expected to result in a wear-away period
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must be based on the value of the factor January 1, 2004, the normal retirement participant’s number of years of service times applicable under the plan at a time that benefit will be 2% of the participant’s highest 1.5 percent times the participant’s average is reasonably close to the date section average pay multiplied by years of service pay over the 3 consecutive years for which 204(h) notice is provided, and any wear- before the effective date, plus 1% of the the average is the highest. Plan D provides participant’s highest average pay multiplied early retirement benefits for former away period that is solely a result of a by years of service after the effective date. employees beginning at or after age 55 in the future change in the variable factor may The plan administrator provides notice that form of an early retirement annuity that is be disregarded. For example, to states: ‘‘Under the Plan’s current benefit actuarially equivalent to the normal determine whether a wear-away occurs formula, a participant’s normal retirement retirement benefit, with the reduction for as a result of a section 204(h) benefit is 2% of the participant’s average pay early commencement based on reasonable amendment that converts a defined over the 3 consecutive years for which the actuarial assumptions that are specified in benefit plan to a cash balance pension average is the highest multiplied by the Plan D. Plan D provides for the suspension plan that will credit interest based on a participant’s years of service. This formula is of benefits of participants who continue in being changed by a plan amendment. Under employment beyond normal retirement age, variable interest factor specified in the the Plan as amended, a participant’s normal in accordance with section 203(a)(3)(B) of plan, the future interest credits must be retirement benefit will be the sum of 2% of ERISA and regulations thereunder issued by projected based on the interest rate the participant’s average pay over the 3 the Department of Labor. The pension of a applicable under the variable factor at consecutive years for which the average is participant who retires after age 65 is the time section 204(h) notice is the highest multiplied by years of service calculated under the same normal retirement provided. before the effective date, plus 1% of the benefit formula, but is based on the (4) No false or misleading participant’s average pay over the 3 participant’s service credit and highest 3-year information. A notice that includes consecutive years for which the average is pay at the time of late retirement with any materially false or misleading the highest multiplied by the participant’s appropriate actuarial increases. years of service after the effective date. This (B) Plan D is amended, effective July 1, information (or omits information so as change is effective on January 1, 2004.’’ The 2005, to change the formula for all future to cause the information provided to be notice does not contain any additional accruals to a cash balance formula under misleading) does not constitute section information. which the opening account balance for each 204(h) notice. (ii) Conclusion. The notice satisfies the participant on July 1, 2005 is zero, (b) Additional information when requirements of paragraph (a) of this Q&A– hypothetical pay credits equal to 5 percent of reduction not uniform— (1) In general. 11. pay are credited to the account thereafter, If an amendment by its terms affects Example 2. (i) Facts. Plan B provides that and hypothetical interest is credited monthly different classes of participants a participant is entitled to a normal based on the applicable interest rate under differently (e.g., one new benefit retirement benefit at age 64 of 2.2% of the section 417(e)(3) of the Internal Revenue formula will apply to Division A and participant’s career average pay times years Code at the beginning of the quarter. Any of service. Plan B is amended to cease all participant who terminates employment with another to Division B), then the accruals, effective January 1, 2004. The plan vested benefits can receive an actuarially requirements of paragraph (a) of this administrator provides notice that includes a equivalent annuity (based on the same Q&A–11 apply separately with respect description of the old benefit formula, a reasonable actuarial assumptions that are to each such general class of statement that after December 31, 2003, no specified in Plan D) commencing at any time participants. In addition, the notice participant will earn any further accruals, after termination of employment and before must include sufficient information to and the effective date of the amendment. the plan’s normal retirement age of 65. The enable an applicable individual who is (ii) Conclusion. The notice satisfies the benefit resulting from the hypothetical a participant to understand which class requirements of paragraph (a) of this Q&A– account balance is in addition to the benefit 11. he or she is a member of. accrued on June 30, 2005 (taking into account (2) Option for different section 204(h) Example 3. (i) Facts. Plan C provides that only service and highest 3-year pay before July 30, 2005), so that it is reasonably notices. If a section 204(h) amendment a participant is entitled to a normal retirement benefit at age 65 of 2% of career expected that no wear-away period will affects different classes of applicable average compensation times years of service. result from the amendment. The plan individuals differently, the plan Plan C is amended to provide that the normal administrator expects that, as a general rule, administrator may provide to differently retirement benefit will be 1% of average pay depending on future pay increases and future affected classes of applicable over the 3 consecutive years for which the interest rates, the rate of future benefit individuals a section 204(h) notice average is the highest times years of service. accrual after the conversion is higher for appropriate to those individuals. Such The amendment only applies to accruals for participants who accrue benefits before section 204(h) notice may omit years of service after the amendment, so that approximately age 50 and after information that does not apply to the each employee’s accrued benefit is equal to approximately age 70, but is lower for the sum of the benefit accrued as of the participants who accrue benefits between applicable individuals to whom it is effective date of the amendment plus the approximately age 50 and age 70. furnished, but must identify the class or accrued benefit equal to the new formula (C) The plan administrator of Plan D classes of applicable individuals to applied to years of service beginning on or announces the conversion to a cash balance whom it is provided. after the effective fate. The plan formula on May 16, 2005. The announcement (c) Examples. The following examples administrator provides notice that describes is delivered to all participants and includes illustrate the requirements of paragraph the old and new benefit formulas and also a written notice that describes the old (a) of this Q&A–11. In each example it explains that for an individual whose formula, the new formula, and the effective is assumed that the notice is written in compensation increases over the individual’s date. a manner calculated to be understood by career such that the individual’s highest 3- (D) In addition, the notice states that the year average exceeds the individual’s career the average plan participant and to Plan D formula before the conversion average, the reduction will be less or there provided a normal retirement benefit equal to apprise the applicable individual of the may be no reduction. the product of a participant’s number of years significance of the notice. (ii) Conclusion. The notice satisfies the of service times 1.5 percent times the Example 1. (i) Facts. Plan A provides that requirements of paragraph (a) of this Q&A– participant’s average pay over the 3 years for a participant is entitled to a normal 11. which the average is the highest (highest 3- retirement benefit of 2% of the participant’s Example 4. (i) Facts. (A) Plan D is a year pay). The notice includes an example average pay over the 3 consecutive years for defined benefit pension plan under which showing the normal retirement benefit that which the average is the highest (highest each participant accrues a normal retirement will be accrued after June 30, 2005 for a average pay) multiplied by years of service. benefit, as a life annuity beginning at the participant who is age 49 with 10 years of Plan A is amended to provide that, effective normal retirement age of 65, equal to the service at the time of the conversion. The
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plan administrator believes that such a least 20 years of service is equal to the A–12. In any case in which an participant is representative of the normal retirement benefit without reduction applicable individual can choose participants whose rate of future benefit from age 65 to age 62 and reduced by only between the benefit formula (including accrual will be reduced as a result of the 5 percent per year for each year before age any early retirement benefit or amendment. The example estimates that, if 62. As a result, early retirement benefits for the participant continues employment to age such a participant constitute a retirement- retirement-type subsidy) in effect before 65, the participant’s normal retirement type subsidy. The plan as in effect after the the section 204(h) amendment (old benefit for service from age 49 to age 65 will amendment provides an early retirement formula) or the benefit formula in effect be $657 per month for life. The example benefit equal to the sum of the early after the section 204(h) amendment assumes that the participant’s pay is $50,000 retirement benefit payable under the plan as (new formula), section 204(h) notice has at age 49. The example states that the in effect before the amendment taking into not been provided unless the applicable estimated $657 monthly pension accrues account only service and highest 3-year pay individual has been provided the over the 16-year period from age 49 to age 65 before July 1, 2005, plus an early retirement information required under Q&A–11 of annuity that is actuarially equivalent to the and that, based on assumed future pay this section, and has also been provided increases, this amount annually would be 9.1 account balance for service after June 30, percent of the participant’s highest 3-year 2005. The notice provided by the plan sufficient information to enable the pay at age 65, which over the 16 years from administrator describes the old early individual to make an informed choice age 49 to age 65 averages 0.57 percent per retirement annuity, the new early retirement between the old and new benefit year times the participant’s highest 3-year annuity, and the effective date. The notice formulas. The information required pay. The example also states that the sum of includes an estimate of the early retirement under Q&A–11 of this section must be the monthly annuity accrued before the annuity payable to the illustrated participant provided by the date otherwise required conversion in the 10-year period from age 39 for service after the conversion if the under Q&A–9 of this section. The to age 49 plus the $657 monthly annuity participant were to retire at age 59 (which the information sufficient to enable the plan administrator believes is a typical early estimated to be accrued over the 16-year individual to make an informed choice period from age 49 to age 65 is $1,235 and retirement age) and elect to begin receiving that, based on assumed future increases in an immediate early retirement annuity. The must be provided within a period that pay, this would be 17.1 percent of the example states that the normal retirement is reasonably contemporaneous with the participant’s highest 3-year pay at age 65, benefit expected to be payable at age 65 as date by which the individual is required which over the employee’s career from age 39 a result of service from age 49 to age 59 is to make his or her choice and that to age 65 averages 0.66 percent per year times $434 per month for life beginning at age 65 allows sufficient advance notice to the participant’s highest 3-year pay. The and that the early retirement annuity enable the individual to understand and notice also includes two other examples with expected to be payable as a result of service consider the additional information similar information, one of which is intended from age 49 to age 59 is $270 per month for before making that choice. to show the circumstances in which a small life beginning at age 59. The example states Q–13. How may section 204(h) notice that the monthly early retirement annuity of reduction may occur and the other of which be provided? shows the largest reduction that the plan $270 is 38 percent less than the monthly administrator thinks is likely to occur. The normal retirement benefit of $434, whereas a A–13. (a) A plan administrator notice states that the estimates are based on 15 percent reduction would have applied (including a person acting on behalf of the assumption that pay increases annually under the plan as in effect before the the plan administrator, such as the after June 30, 2005 at a 4 percent rate. The amendment. The notice also includes similar employer or plan trustee) must provide notice also specifies that the applicable information for examples that show the section 204(h) notice through a method interest rate under section 417(e) for smallest and largest reduction that the plan that results in actual receipt of the hypothetical interest credits after June 30, administrator thinks is likely to occur in the notice or the plan administrator must 2005 is assumed to be 6 percent, which is the early retirement benefit. The notice also take appropriate and necessary section 417(e) of the Internal Revenue Code specifies the applicable interest rate, mortality table, and salary scale used in the measures reasonably calculated to applicable interest rate under the plan for ensure that the method for providing 2005. example to calculate the early retirement (ii) Conclusion. The information in the reductions. section 204(h) notice results in actual notice, as described in paragraph (i)(C) of this (ii) Conclusion. The information in the receipt of the notice. Section 204(h) Example 4, satisfies the requirements of notice, as described in paragraphs (i)(C) and notice must be provided either in the paragraph (a)(2) of this Q&A–11 with respect (i)(D) of Example 4 and paragraph (i) of this form of a paper document or in an to applicable individuals who are Example 5, satisfies the requirements of electronic form that satisfies the participants. The additional requirements of paragraph (a) of this Q&A–11 with respect to requirements of paragraph (c) of this paragraph (a)(3) of this Q&A–11 are satisfied applicable individuals who are participants. Q&A–13. First class mail to the last The requirements of paragraph (a)(3) of this because, as noted in paragraph (i)(D) of this known address of the party is an Example 4, the notice describes the old Q&A–11 are satisfied because, as noted in paragraph (i) of this Example 5, the notice acceptable delivery method. Likewise, formula and describes the estimated future hand delivery is acceptable. However, accruals under the new formula in terms that describes the early retirement subsidy under can be readily compared to the old formula, the old formula and describes the estimated the posting of notice is not considered i.e., the notice states that the estimated $657 early retirement pension under the new provision of section 204(h) notice. monthly pension accrued over the 16-year formula in terms that can be readily Section 204(h) notice may be enclosed period from age 49 to age 65 averages 0.57 compared to the old formula, i.e., the notice with or combined with other notice percent of the participant’s highest 3-year states that the monthly early retirement provided by the employer or plan pay at age 65. The requirement that the pension of $270 is 38 percent less than the administrator (for example, a notice of examples include sufficient information to be monthly normal retirement benefit of $434, whereas a 15 percent reduction would have intent to terminate under title IV of able to determine the approximate magnitude ERISA). Except as provided in of the reduction would also be satisfied if the applied under the plan as in effect before the amendment. The requirements of paragraph paragraph (c) of this Q&A–13, a section notice instead directly stated the amount of 204(h) notice is deemed to have been the monthly pension that would have (a)(1) of this Q&A–11 would also be satisfied accrued over the 16-year period from age 49 if the notice instead directly stated the provided on a date if it has been amount of the monthly early retirement to age 65 under the old formula. provided by the end of that day. When pension that would be payable at age 59 notice is delivered by first class mail, Example 5. (i) Facts. The facts are the same under the old formula. as in Example 4, except that, under the plan the notice is considered provided as of as in effect before the amendment, the early Q–12. What special rules apply if the date of the United States postmark retirement pension for a participant who participants can choose between the old stamped on the cover in which the terminates employment after age 55 with at and new benefit formulas? document is mailed.
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(b) Example. The following example Example 1. (i) Facts. On July 1, 2003, M, form, a clear and conspicuous statement illustrates the provisions of paragraph a plan administrator of Company N’s plan, indicating— (a) of this Q&A–13: sends notice intended to satisfy section (A) That the consent can be 204(h) of ERISA to A, an employee of withdrawn at any time without charge; Example. (i) Facts. Plan A is amended to Company N and a participant in the plan. reduce significantly the rate of future benefit (B) The procedures for withdrawing The notice is sent through e-mail to A’s e- consent and for updating the address or accrual effective January 1, 2005. Under mail address on Company N’s electronic Q&A–9 of this section, section 204(h) notice information system. Accessing Company N’s other information needed to contact the is required to be provided at least 45 days electronic information system is not an applicable individual; before the effective date of the amendment. integral part of A’s duties. M sends the e-mail (C) Any hardware and software The plan administrator causes section 204(h) with a request for a computer-generated requirements for accessing and retaining notice to be mailed to all affected notification that the message was received the documents; and participants. The mailing is postmarked and opened. M receives notification (D) The information required by November 16, 2004. indicating that the e-mail was received and paragraph (c)(1)(ii) of this Q&A–13; and (ii) Conclusion. Because section 204(h) opened by A on July 9, 2003. (iv) After consenting, if a change in notice is given 45 days before the effective (ii) Conclusion. With respect to A, although hardware or software requirements date of the plan amendment, it satisfies the M has failed to take appropriate and timing requirement of Q&A–9 of this section. needed to access or retain electronic necessary measures reasonably calculated to records creates a material risk that the (c) New technologies—(1)General rule. ensure that the method for providing section 204(h) notice results in actual receipt of the applicable individual will be unable to A section 204(h) notice may be provided access or retain the section 204(h) to an applicable individual through an notice, M satisfies the requirement of paragraph (c)(1)(i) of this Q&A–13 on July 9, notice— electronic method (other than an oral 2003, which is when A actually receives the (A) The applicable individual is communication or a recording of an oral notice. provided with a statement of the revised communication), provided that all of the Example 2. (i) Facts. On August 1, 2003, hardware and software requirements for following requirements are satisfied: O, a plan administrator of Company P’s plan, access to and retention of the section (i) Either the notice is actually sends a notice intended to satisfy section 204(h) notice and is given the right to received by the applicable individual or 204(h) of ERISA to B, who is an employee of withdraw consent without the the plan administrator takes appropriate Company P and a participant in Company P’s imposition of any fees for such and necessary measures reasonably plan. The notice is sent through e-mail to B’s withdrawal and without the imposition calculated to ensure that the method for e-mail address on Company P’s electronic of any condition or consequence that information system. B has the ability to providing section 204(h) notice results was not disclosed at the time of the in actual receipt of the notice by the effectively access electronic documents from B’s e-mail address on Company P’s electronic initial consent; and applicable individual. information system and accessing the system (B) The requirement of paragraph (ii) The plan administrator provides is an integral part of B’s duties. (c)(3)(i) of this Q&A–13 is again the applicable individual with a clear (ii) Conclusion. Because access to the complied with. and conspicuous statement, in system is an integral part of B’s duties, O has Q–14. What are the consequences if a electronic or non-electronic form, that taken appropriate and necessary measures plan administrator fails to provide the applicable individual has a right to reasonably calculated to ensure that the section 204(h) notice? request and obtain a paper version of method for providing section 204(h) notice A–14. (a) Egregious failures— (1) the section 204(h) notice without charge results in actual receipt of the notice. Thus, Effect of egregious failure to provide and, if such request is made, the regardless of whether B actually accesses B’s section 204(h) notice. Section email on that date, O satisfies the applicable individual is furnished with requirement of paragraph (c)(1)(i) of this 204(h)(6)(A) of ERISA provides that, in the paper version without charge. Q&A–13 on August 1, 2003, with respect to the case of any egregious failure to meet (iii) The requirements of this section B. the notice requirements with respect to must otherwise be satisfied. Thus, for any plan amendment, the plan example, a section 204(h) notice (3) Safe harbor in case of consent. The provisions are applied so that all provided through an electronic method requirement of paragraph (c)(1)(i) of this applicable individuals are entitled to must be delivered on or before the date Q&A–13 is deemed to be satisfied with the greater of the benefit to which they required under Q&A–9 of this section respect to an applicable individual if the would have been entitled without and must satisfy the requirements set section 204(h) notice is provided regard to the amendment, or the benefit forth in Q&A–11 of this section, electronically to an applicable under the plan with regard to the including the content requirements and individual, and— amendment. For a special rule the requirements that it be written in a (i) The applicable individual has applicable in the case of a plan manner calculated to be understood by affirmatively consented electronically, termination, see Q&A–17(b) of this the average plan participant and to or confirmed consent electronically, in section. apprise the applicable individual of the a manner that reasonably demonstrates (2) Definition of egregious failure. For significance of the notice. Accordingly, the applicable individual’s ability to purposes of section 204(h) of ERISA and when it is not otherwise reasonably access the information in the electronic this Q&A–14, there is an egregious evident, the recipient should be form in which the notice will be failure to meet the notice requirements apprised (either in electronic or non- provided, to receiving section 204(h) if a failure to provide required notice is electronic form), at the time the notice notice electronically and has not within the control of the plan sponsor is furnished electronically, of the withdrawn such consent; and is either an intentional failure or a significance of the notice. (ii) The applicable individual has failure, whether or not intentional, to (2) Examples. The following examples provided, if applicable, in electronic or provide most of the individuals with illustrate the requirement in paragraph non-electronic form, an address for the most of the information they are entitled (c)(1)(i) of this Q&A–13. In these receipt of electronically furnished to receive. For this purpose, an examples, it is assumed that the notice documents; intentional failure includes any failure satisfies the requirements in paragraph (iii) Prior to consenting, the to promptly provide the required notice (c)(1)(ii) and (iii) of this section. The applicable individual has been or information after the plan examples are as follows: provided, in electronic or non-electronic administrator discovers an
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unintentional failure to meet the A–15. (a) Person responsible for 30 days after the employer first knew, or requirements. A failure to give section excise tax. In the case of a plan other exercising reasonable diligence would have 204(h) notice is deemed not to be than a multiemployer plan, the known, that the failure occurred. egregious if the plan administrator employer is responsible for reporting Q–16. How do section 4980F and reasonably determines, taking into and paying the excise tax. In the case of section 204(h) apply when a business is account section 204(h) of ERISA, section a multiemployer plan, the plan is sold? 4980F of the Internal Revenue Code, responsible for reporting and paying the A–16. (a) Generally. Whether section these regulations, other administrative excise tax. 204(h) notice is required in connection pronouncements, and relevant facts and (b) Excise tax inapplicable in certain with the sale of a business depends on circumstances, that the reduction in the cases. Under section 4980F(c)(1) of the whether a plan amendment is adopted rate of future benefit accrual resulting Internal Revenue Code, no excise tax is that significantly reduces the rate of from an amendment is not significant imposed on a failure for any period future benefit accrual or significantly (as described in Q&A–8 of this section), during which it is established to the reduces an early retirement benefit or or that an amendment does not satisfaction of the Commissioner that retirement-type subsidy. significantly reduce an early retirement the employer (or other person (b) Examples. The following examples benefit or retirement-type subsidy. responsible for the tax) exercised illustrate the rules of this Q&A–16: (3) Example. The following example reasonable diligence, but did not know Example 1. (i) Facts. Corporation Q illustrates the provisions of this that the failure existed. Under section maintains Plan A, a defined benefit plan that paragraph (a): 4980F(c)(2) of the Internal Revenue covers all employees of Corporation Q, Example. (i) Facts. Plan A is amended to Code, no excise tax applies to a failure including employees in its Division M. Plan reduce significantly the rate of future benefit to provide section 204(h) notice if the A provides that participating employees accrual effective January 1, 2003. Section employer (or other person responsible cease to accrue benefits when they cease to 204(h) notice is required to be provided 45 for the tax) exercised reasonable be employees of Corporation Q. On January days before January 1, 2003. Timely section diligence and corrects the failure within 1, 2006, Corporation Q sells all of the assets 204(h) notice is provided to all applicable of Division M to Corporation R. Corporation 30 days after the employer (or other R maintains Plan B, which covers all of the individuals (and to each employee person responsible for the tax) first organization representing participants who employees of Corporation R. Under the sale are applicable individuals), except that the knew, or exercising reasonable diligence agreement, employees of Division M become employer intentionally fails to provide would have known, that such failure employees of Corporation R on the date of section 204(h) notice to certain participants existed. For purposes of section the sale (and cease to be employees of until May 16, 2003. 4980F(c)(1) of the Internal Revenue Corporation Q), Corporation Q continues to (ii) Conclusion. The failure to provide Code, a person has exercised reasonable maintain Plan A following the sale, and the section 204(h) notice is egregious. diligence, but did not know that the employees of Division M become participants Accordingly, for the period from January 1, failure existed if and only if— in Plan B. 2003 through June 30, 2003 (which is the (1) The person exercised reasonable (ii) Conclusion. No section 204(h) notice is date that is 45 days after May 16, 2003), all required because no plan amendment was diligence in attempting to deliver adopted that reduced the rate of future participants and alternate payees are entitled section 204(h) notice to applicable to the greater of the benefit to which they benefit accrual. The employees of Division M would have been entitled under Plan A as in individuals by the latest date permitted who become employees of Corporation R effect before the amendment or the benefit under this section; and ceased to accrue benefits under Plan A under the plan as amended. (2) At the latest date permitted for because their employment with Corporation delivery of section 204(h) notice, the Q terminated. (b) Effect of non-egregious failure to person reasonably believes that section Example 2. (i) Facts. Subsidiary Y is a provide section 204(h) notice. If an 204(h) notice was actually delivered to wholly owned subsidiary of Corporation S. egregious failure has not occurred, the each applicable individual by that date. Subsidiary Y maintains Plan C, a defined amendment with respect to which (c) Example. The following example benefit plan that covers employees of section 204(h) notice is required may illustrates the provisions of paragraph Subsidiary Y. Corporation S sells all of the become effective with respect to all (b) of this Q&A–15: stock of Subsidiary Y to Corporation T. At applicable individuals. However, see the effective date of the sale of the stock of section 502 of ERISA for civil Example. (i) Facts. Plan A is amended to Subsidiary Y, in accordance with the sale reduce significantly the rate of future benefit agreement between Corporation S and enforcement remedies. Thus, where accrual. The employer sends out a section there is a failure, whether or not Corporation T, Subsidiary Y amends Plan C 204(h) notice to all affected participants and so that all benefit accruals cease. egregious, to provide section 204(h) other applicable individuals and to any (ii) Conclusion. Section 204(h) notice is notice in accordance with this section, employee organization representing required to be provided because Subsidiary individuals may have recourse under applicable individuals, including actual Y adopted a plan amendment that section 502 of ERISA. delivery by hand to employees at worksites. significantly reduced the rate of future (c) Excise taxes. See section 4980F of However, although the employer exercises benefit accrual in Plan C. the Internal Revenue Code and Q&A–15 reasonable diligence in seeking to deliver the notice, the notice is not delivered to any Example 3. (i) Facts. As a result of an of this section for excise taxes that may participants at one worksite due to a failure acquisition, Corporation U maintains two apply to a failure to notify applicable of an overnight delivery service to provide plans: Plan D covers employees of Division individuals of a pension plan the notice to appropriate personnel at that N and Plan E covers the rest of the employees amendment that provides for a site for them to timely hand deliver the of Corporation U. Plan E provides a significant reduction in the rate of notice to affected employees. The error is significantly lower rate of future benefit accrual than Plan D. Plan D is merged with future benefit accrual or eliminates or discovered when the employer subsequently calls to confirm delivery. Appropriate section Plan E, and all of the employees of significantly reduces an early retirement Corporation U will accrue benefits under the benefit or retirement-type subsidy, 204(h) notice is then promptly delivered to all affected participants at the worksite. merged plan in accordance with the benefit regardless of whether or not the failure (ii) Conclusion. Because the employer formula of former Plan E. is egregious. exercised reasonable diligence, but did not (ii) Conclusion. Section 204(h) notice is Q–15. What are some of the rules that know that a failure existed, no excise tax required. apply with respect to the excise tax applies, assuming that participants at the Example 4. (i) Facts. The facts are the same under section 4980F? worksite receive section 204(h) notice within as in Example 3, except that the rate of future
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benefit accrual in Plan E is not significantly (ii) Conclusion. Nonetheless, because taking effect on or after June 7, 2001 lower. In addition, Plan D has a retirement- section 204(h) notice was given stating that (statutory effective date), which is the type subsidy that Plan E does not have and the plan was amended to cease accruals on date of enactment of EGTRRA. the Plan D employees’ rights to the subsidy December 31, 2003, section 204(h) does not under the merged plan are limited to benefits prevent the amendment to cease accruals (2) Transition rule. For amendments accrued before the merger. from being effective on December 31, 2003. applying after the statutory effective (ii) Conclusion. Section 204(h) notice is The result would be the same had the section date in paragraph (a)(1) of this Q&A–18 required for any participants or beneficiaries 204(h) notice informed the participants that and prior to the regulatory effective date for whom the reduction in the retirement- the plan was amended to provide for a in paragraph (c) of this Q&A–18, the type subsidy is significant (and for any proposed termination date of December 31, employee organization representing such 2003 and to provide that ‘‘benefit accruals requirements of section 4980F(e)(2) and participants). will cease on the proposed termination date (3) of the Internal Revenue Code and Example 5. (i) Facts. Corporation V whether or not the plan is terminated on that section 204(h) of ERISA, as amended by maintains several plans, including Plan F, date.’’ However, neither section 4980F of the EGTRRA, are treated as satisfied if the which covers employees of Division P. Plan Internal Revenue Code nor section 204(h) of plan administrator makes a reasonable, F provides that participating employees cease ERISA would be satisfied with respect to the good faith effort to comply with those to accrue further benefits under the plan December 31, 2003 effective date if the requirements. when they cease to be employees of section 204(h) notice had merely stated that Corporation V. Corporation V sells all of the benefit accruals would cease ‘‘on the (3) Special notice rule—(i) In general. assets of Division P to Corporation W, which termination date’’ or ‘‘on the proposed Notwithstanding Q&A–9 of this section, maintains Plan G for its employees. Plan G termination date.’’ section 204(h) notice is not required by provides a significantly lower rate of future (3) Additional requirements under section 4980F(e) of the Internal Revenue benefit accrual than Plan F. Plan F is merged title IV of ERISA. See 29 CFR Code or section 204(h) of ERISA, as with Plan G as part of the sale, and amended by EGTRRA, to be provided employees of Division P who become 4041.23(b)(4) and 4041.43(b)(5) for employees of Corporation W will accrue special rules applicable to plans prior to September 7, 2001 (the date that benefits under the merged plan in accordance terminating under title IV of ERISA. is three months after the date of with the benefit formula of former Plan G. (b) Terminations in accordance with enactment of EGTRRA). (ii) Conclusion. No section 204(h) notice is title IV of ERISA. A plan that is (ii) Reasonable notice. The required because no plan amendment was terminated in accordance with title IV of requirements of section 4980F of the adopted that reduces the rate of future benefit ERISA is deemed to have satisfied Internal Revenue Code and section accrual or eliminates or significantly reduces section 4980F of the Internal Revenue an early retirement benefit or retirement-type 204(h) of ERISA, as amended by Code and section 204(h) of ERISA not EGTRRA, do not apply to any plan subsidy. Under the terms of Plan F as in later than the termination date (or date effect prior to the merger, employees of amendment that takes effect on or after of termination, as applicable) Division P cease to accrue any further June 7, 2001 if, before April 25, 2001, established under section 4048 of benefits (including benefits with respect to notice was provided to participants and ERISA. Accordingly, neither section early retirement benefits and any retirement- beneficiaries adversely affected by the type subsidy) under Plan F after the date of 4980F of the Internal Revenue Code nor the sale because their employment with section 204(h) of ERISA would in any plan amendment (and their Corporation V terminated. event require that any additional representatives) which was reasonably benefits accrue after the effective date of expected to notify them of the nature Q–17. How are amendments to cease and effective date of the plan accruals and terminate a plan treated the termination. amendment. For purposes of this under section 4980F of the Internal (c) Amendment effective before paragraph (a)(3)(ii), notice that complies Revenue Code and section 204(h) of termination date of a plan subject to with § 1.411(d)–6 of this chapter, as it ERISA? title IV of ERISA. To the extent that an A–17. (a) General rule—(1) Rule. An amendment providing for a significant appeared in the April 1, 2001 edition of amendment providing for the cessation reduction in the rate of future benefit 26 CFR part 1, is deemed to be notice of benefit accruals on a specified future accrual or a significant reduction in an which was reasonably expected to date and for the termination of a plan is early retirement benefit or retirement- notify participants and beneficiaries subject to section 4980F of the Internal type subsidy has an effective date that adversely affected by the plan Revenue Code and section 204(h) of is earlier than the termination date (or amendment (and their representatives) ERISA. date of termination, as applicable) of the nature and effective date of the (2) Example. The following example established under section 4048 of plan amendment. illustrates the rule of paragraph (a)(1) of ERISA, that amendment is subject to (b) Amendments taking effect prior to this Q&A–17: section 4980F of the Internal Revenue June 7, 2001. For rules applicable to Code and section 204(h) of ERISA. amendments taking effect prior to June Example. (i) Facts. An employer adopts an Accordingly, the plan administrator amendment that provides for the cessation of 7, 2001, see § 1.411(d)–6 of this chapter, must provide section 204(h) notice benefit accruals under a defined benefit plan as it appeared in the April 1, 2001 (either separately, with, or as part of the on December 31, 2003, and for the edition of 26 CFR part 1. termination of the plan pursuant to title IV notice of intent to terminate) with of ERISA as of a proposed termination date respect to such an amendment. (c) Regulatory effective date. Q&A–1 that is also December 31, 2003. As part of the Q–18. What is the effective date of through Q&A–18 of this section apply to notice of intent to terminate required under section 4980F of the Internal Revenue amendments taking effect on or after the title IV in order to terminate the plan, the Code, section 204(h) of ERISA, as date that is 120 days after publication of plan administrator gives section 204(h) amended by EGTRRA, and these final regulations under this section notice of the amendment ceasing accruals, regulations? (regulatory effective date). which states that benefit accruals will cease A–18. (a) Statutory effective date—(1) ‘‘on December 31, 2003.’’ However, because Robert E. Wenzel, all the requirements of title IV for a plan General rule. Section 4980F of the Deputy Commissioner of Internal Revenue. termination are not satisfied, the plan cannot Internal Revenue Code and section be terminated until a date that is later than 204(h) of ERISA, as amended by [FR Doc. 02–9529 Filed 4–22–02; 8:45 am] December 31, 2003. EGTRRA, apply to plan amendments BILLING CODE 4830–01–P
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DEPARTMENT OF TRANSPORTATION comments and material received during Department of Transportation (DOT) (44 the comment period. We may change FR 11040, February 26, 1979). Coast Guard this proposed rule in view of them. We expect the economic impact of this proposed rule to be so minimal that 33 CFR Part 165 Public Meeting a full Regulatory Evaluation under We do not now plan to hold a public [CGD01–02–043] paragraph 10e of the regulatory policies meeting, but you may submit a request and procedures of DOT is unnecessary. RIN 2115–AA97 for a meeting by writing to Coast Guard This proposed safety zone would Group/MSO Long Island Sound at the temporarily close a portion of Branford Safety Zone; Town of Branford Annual address under ADDRESSES explaining Harbor to vessel traffic. However, the Fireworks, Branford, CT why one would be beneficial. If we impact of this proposed rule is expected AGENCY: Coast Guard, DOT. determine that one would aid this to be minimal for the following reasons: the event is of limited duration; vessels ACTION: Notice of proposed rulemaking. rulemaking, we will hold one at a time and place announced by a later notice would not be precluded from getting SUMMARY: The Coast Guard proposes to in the Federal Register. underway, or mooring at, public or private facilities in the vicinity of the establish a temporary safety zone for the Background and Purpose Town of Branford Annual Fireworks event; advance advisories would be Display, in Branford Harbor, Branford, The Coast Guard proposes to establish made to the maritime community; and CT. This action is necessary to provide a temporary safety zone for the Town of marine traffic would be permitted to for the safety of life on navigable waters Branford Annual Fireworks Display in still transit around the zone during the during the event. This action is Branford Harbor. The proposed safety event. intended to restrict vessel traffic in a zone is needed to protect boaters from The projected size of this proposed portion of Branford Harbor. the hazards associated with fireworks safety zone was determined using DATES: Comments and related material launched from a barge in the area. This National Fire Protection Association must reach the Coast Guard on or before proposed safety zone would cover the standards and the Captain of the Port May 23, 2002. minimum area needed and impose the Long Island Sound Standing Orders for minimum restrictions necessary to 6-inch mortars fired from a barge, ADDRESSES: You may mail comments ensure the protection of all vessels. combined with the Coast Guard’s and related material to Marine Events, knowledge of tide and current Coast Guard Group/Marine Safety Office Discussion of Proposed Rule conditions in the area. Long Island Sound, Command Center, The proposed safety zone is for the 120 Woodward Ave., New Haven, CT Town of Branford Annual Fireworks Small Entities 06512. Coast Guard Group/Marine Display held in Branford Harbor, Under the Regulatory Flexibility Act Safety Office Long Island Sound Branford, CT. This event will be held on (5 U.S.C. 601–612), we considered maintains the public docket for this June 22, 2002. In the event of inclement whether this proposed rule would have rulemaking. Comments and material weather, the event will be held on June a significant economic impact on a received from the public, as well as 23, 2001. The proposed safety zone substantial number of small entities. documents indicated in this preamble as would be in effect from 8:45 p.m. until The term ‘‘small entities’’ comprises being available in the docket, will 9:45 p.m. on the date of the event. The small businesses, not-for-profit become part of this docket and will be proposed safety zone would encompass organizations that are independently available for inspection or copying at all waters of Branford Harbor within a owned and operated and are not Group/MSO Long Island Sound, New 600-foot radius of approximate position dominant in their fields, and Haven, CT, between 7:30 a.m. and 4 41°15′30″ N, 072°49′20″ W (NAD 1983). governmental jurisdictions with p.m., Monday through Friday, except Public notifications would be made populations of less than 50,000. Federal holidays. prior to the event via the Local Notice The Coast Guard certifies under 5 FOR FURTHER INFORMATION CONTACT: to Mariners and Marine Information U.S.C. 605(b) that this proposed rule Boatswain’s Mate Second Class (BM2) Broadcasts. Marine traffic would be would not have a significant economic Ryan Peebles, Group Operations Petty allowed to transit around the safety impact on a substantial number of small Officer, Coast Guard Group/MSO Long zone at all times. Vessels would not be entities. This proposed rule would affect Island Sound at (203)468–4408. precluded from mooring at or getting the following entities, some of which SUPPLEMENTARY INFORMATION: underway from recreational or might be small entities: the owners or commercial piers in the vicinity of the operators of vessels intending to transit Request for Comments zone. No vessel would be permitted to or anchor in a portion of Branford We encourage you to participate in enter the safety zone without Harbor during the time this zone is this rulemaking by submitting permission from the Captain of the Port, activated. This proposed safety zone comments and related material. If you Long Island Sound. would not have a significant economic do so, please include your name and impact on a substantial number of small address, identify the docket number for Regulatory Evaluation entities for the following reasons: the this rulemaking [CGD01–02–043], This proposed rule is not a event is of limited duration; vessels indicate the specific section of this ‘‘significant regulatory action’’ under would not be precluded from getting document to which each comment section 3(f) of Executive Order 12866, underway, or mooring at, public or applies, and give the reason for each Regulatory Planning and Review, and private facilities in the vicinity of the comment. Please submit all comments does not require an assessment of event; advance advisories would be and related material in an unbound potential costs and benefits under made to the maritime community; and format, no larger than 81⁄2 by 11 inches, section 6(a)(3) of that Order. The Office marine traffic would be permitted to suitable for copying. If you would like of Management and Budget has not transit around the zone during the to know they reached us, please enclose reviewed it under that Order. It is not event. a stamped, self-addressed postcard or ‘‘significant’’ under the regulatory If you think that your business, envelope. We will consider all policies and procedures of the organization, or governmental
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jurisdiction qualifies as a small entity Civil Justice Reform rule is categorically excluded from and that this proposed rule would have This proposed rule meets applicable further environmental documentation. a significant economic impact on it, standards in sections 3(a) and 3(b)(2) of This proposed rule fits paragraph 34(g) please submit a comment to the address Executive Order 12988, Civil Justice as it establishes a safety zone. A under ADDRESSES explaining why you Reform, to minimize litigation, ‘‘Categorical Exclusion Determination’’ think it qualifies and how and to what eliminate ambiguity, and reduce is available in the docket where degree this rule would economically burden. indicated under ADDRESSES. affect it. Protection of Children List of Subjects in 33 CFR Part 165 Assistance for Small Entities We have analyzed this proposed rule Harbors, Marine safety, Navigation Under section 213(a) of the Small under Executive Order 13045, (water), Reporting and recordkeeping Business Regulatory Enforcement Protection of Children from requirements, Security measures, Fairness Act of 1996 (Public Law 104– Environmental Health Risks and Safety Waterways. 121), we want to assist small entities in Risks. This rule is not an economically For the reasons discussed in the understanding this proposed rule so that significant rule and would not concern preamble, the Coast Guard proposes to they can better evaluate its effects on an environmental risk to health or risk amend 33 CFR part 165 as follows: them and participate in the rulemaking. to safety that may disproportionately If the rule would affect your small affect children. PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS business, organization, or governmental Indian Tribal Governments jurisdiction and you have questions 1. The authority citation for part 165 concerning its provisions or options for This proposed rule does not have continues to read as follows: compliance, please contact Boatswain’s tribal implications under Executive Mate Second Class (BM2) Ryan Peebles, Order 13175, Consultation and Authority: 33 U.S.C. 1231; 50 U.S.C. 191, Operations Petty Officer, Coast Guard Coordination with Indian Tribal 33 CFR 1.05–1(g), 6.04–1, 6.04–6, 160.5; 49 Group/MSO Long Island Sound at (203) Governments, because it would not have CFR 1.46. 468–4408. a substantial direct effect on one or 2. From 8:45 p.m. June 22, 2002 more Indian tribes, on the relationship through 9:45 p.m. June 23, 2002, add Collection of Information between the Federal Government and temporary § 165.T01–043 to read as This proposed rule would call for no Indian tribes, or on the distribution of follows: power and responsibilities between the new collection of information under the § 165.T01–043 Safety Zone; Town of Paperwork Reduction Act of 1995 (44 Federal Government and Indian tribes. To help the Coast Guard establish Branford Annual Fireworks Display, U.S.C. 3501–3520). Branford, CT. regular and meaningful consultation Federalism and collaboration with Indian and (a) Location. The following area is a Alaskan Native tribes, we published a safety zone: All waters of Branford A rule has implications for federalism notice in the Federal Register (66 FR Harbor within a 600-foot radius of under Executive Order 13132, ° ′ ″ 36361, July 11, 2001) requesting approximate position 41 15 30 N, Federalism, if it has a substantial direct ° ′ ″ comments on how to best carry out the 072 49 20 W (NAD 1983). effect on State or local governments and Order. We invite your comments on (b) Enforcement period. This safety would either preempt State law or how this proposed rule might impact zone will be enforced from 8:45 p.m. to impose a substantial direct cost of tribal governments, even if that impact 9:45 p.m. June 22, 2002. In case the compliance on them. We have analyzed may not constitute a ‘‘tribal event is postponed because of inclement this proposed rule under that Order and implication’’ under the Order. weather, the zone will enforced instead have determined that it does not have during the same hours on June 23, 2002. implications for federalism. Energy Effects (c) Regulations. (1) The general Unfunded Mandates Reform Act We have analyzed this proposed rule regulations contained in 33 CFR 165.23 under Executive Order 13211, Actions apply. The Unfunded Mandates Reform Act Concerning Regulations That (2) No vessels will be allowed to of 1995 (2 U.S.C. 1531–1538) requires Significantly Affect Energy Supply, transit the safety zone without the Federal agencies to assess the effects of Distribution, or Use. We have permission of the Captain of the Port, their discretionary regulatory actions. In determined that it is not a ‘‘significant Long Island Sound. particular, the Act addresses actions energy action’’ under that order because (3) All persons and vessels shall that may result in the expenditure by a it is not a ‘‘significant regulatory action’’ comply with the instructions of the State, local, or tribal government, in the under Executive Order 12866 and is not Coast Guard Captain of the Port or the aggregate, or by the private sector of likely to have a significant adverse effect designated on-scene patrol personnel. $100,000,000 or more in any one year. on the supply, distribution, or use of These personnel comprise Though this proposed rule would not energy. It has not been designated by the commissioned, warrant, and petty result in such an expenditure, we do Administrator of the Office of officers of the Coast Guard. Upon being discuss the effects of this rule elsewhere Information and Regulatory Affairs as a hailed by a U. S. Coast Guard vessel by in this preamble. significant energy action. Therefore, it siren, radio, flashing light, or other Taking of Private Property does not require a Statement of Energy means, the operator of a vessel shall Effects under Executive Order 13211. proceed as directed. This proposed rule would not effect a taking of private property or otherwise Environment Dated: April 3, 2002. have taking implications under We considered the environmental J.J. Coccia, Executive Order 12630, Governmental impact of this proposed rule and Captain, U. S. Coast Guard, Captain of the Actions and Interference with concluded that, under figure 2–1, Port, Long Island Sound. Constitutionally Protected Property paragraph 34(g), of Commandant [FR Doc. 02–9938 Filed 4–22–02; 8:45 am] Rights. Instruction M16475.1D, this proposed BILLING CODE 4910–15–U
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ENVIRONMENTAL PROTECTION rule and address the comments in not directly related to homeland AGENCY subsequent action based on this security that we do not expect to take proposed rule. We do not plan to open significant action on during the coming 40 CFR Part 52 a second comment period, so anyone year. All comments and documents [CA 247–0322b; FRL–7158–5] interested in commenting should do so received in this docket will be available at this time. If we do not receive adverse for use in future rulemakings. Revisions to the California State comments, no further activity is This action is taken under the Implementation Plan, Monterey Bay planned. For further information, please authority of 33 U.S.C. 1903, 46 U.S.C. Unified Air Pollution Control District see the direct final rule. 3703, 49 CFR 1.46. Dated: April 15, 2002. AGENCY: Environmental Protection Dated: February 15, 2002. Agency (EPA). Wayne Nastri, Joseph J. Angelo, Director of Standards, Marine Safety, Security ACTION: Proposed rule. Regional Administrator, Region IX. [FR Doc. 02–9787 Filed 4–22–02; 8:45 am] and Environmental Protection. SUMMARY: EPA is proposing to approve BILLING CODE 6560–50–P [FR Doc. 02–9837 Filed 4–22–02; 8:45 am] revisions to the Monterey Bay Unified BILLING CODE 4910–15–P Air Pollution Control District (MBUAPCD) portion of the California DEPARTMENT OF TRANSPORTATION State Implementation Plan (SIP). These FEDERAL MARITIME COMMISSION revisions concern the emission of Coast Guard volatile organic compounds (VOC) from 46 CFR Part 540 the transfer of gasoline into stationary 46 CFR Part 151 storage containers and from gasoline [Docket No. 02–07] [USCG–1999–5117] bulk plants and terminals. We are proposing to approve local rules that RIN 2115–AF77 Financial Responsibility Requirements regulate these emission sources under for Nonperformance of the Clean Air Act as amended in 1990 Barges Carrying Bulk Liquid Transportation—Discontinuance of (CAA or the Act). Hazardous Material Cargoes Self-Insurance and the Sliding Scale, and Guarantor Limitations DATES: Any comments on this proposal AGENCY: Coast Guard, DOT. must be received by May 23, 2002. ACTION: Advance notice of proposed AGENCY: Federal Maritime Commission. ADDRESSES: Mail comments to Andy rulemaking; withdrawal. ACTION: Notice of proposed rulemaking. Steckel, Rulemaking Office Chief (AIR– 4), U.S. Environmental Protection SUMMARY: The Coast Guard is SUMMARY: The Federal Maritime Agency, Region IX, 75 Hawthorne withdrawing its advance notice of Commission proposes to amend its Street, San Francisco, CA 94105. proposed rulemaking concerning barges procedures for establishing passenger You can inspect copies of the carrying bulk liquid hazardous material vessel financial responsibility for submitted rule revisions and EPA’s cargoes in order to focus its resources on nonperformance of transportation. The technical support document (TSD) at rulemakings that more closely affect proposed rule eliminates the availability our Region IX office during normal homeland security. of self-insurance, limits those who can business hours. You may also see copies DATES: The advance notice of proposed provide a guaranty, and discontinues of the submitted rule revisions and TSD rulemaking is withdrawn on April 23, the use of a sliding scale for required at the following locations: 2002. coverage of unearned passenger revenue (‘‘UPR’’). Environmental Protection Agency, Air FOR FURTHER INFORMATION CONTACT: Mr. DATES: Submit an original and 15 copies Docket (6102), Ariel Rios Building, Thomas Felleisen, Hazardous Materials 1200 Pennsylvania Avenue, NW., of comments (paper), or e-mail Standards Division, Coast Guard, comments as an attachment in Washington DC 20460. telephone 202–267–0085. California Air Resources Board, WordPerfect 8, Microsoft Word 97, or SUPPLEMENTARY INFORMATION: Stationary Source Division, Rule earlier versions of these applications, no Evaluation Section, 1001 ‘‘I’’ Street, Background later than May 23, 2002. ADDRESSES: Address all comments Sacramento, CA 95814. On September 9, 1999, we published concerning this proposed rule to: Bryant Monterey Bay Unified Air Pollution an advance notice of proposed L. VanBrakle, Secretary, Federal Control District, 24580 Silver Cloud rulemaking entitled ‘‘Barges Carrying Maritime Commission, 800 North Court, Monterey, CA 93940. Bulk Liquid Hazardous Material Capitol Street, NW, Room 1046, FOR FURTHER INFORMATION CONTACT: Al Cargoes’’ in the Federal Register (64 FR Washington, DC 20573–0001, E-mail: Petersen, Rulemaking Office (AIR–4), 48976). We requested comments on the [email protected]. U.S. Environmental Protection Agency, type and scope of any necessary Region IX; (415) 947–4118. revisions to regulations affecting barges FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: This carrying bulk hazardous material Sandra L. Kusumoto, Director, Bureau of proposal addresses the approval of the cargoes. Consumer Complaints and Licensing, local MBUAPCD Rules 418 and 419. In Federal Maritime Commission, 800 the Rules and Regulations section of this Withdrawal North Capitol Street, NW, Room 970, Federal Register, we are approving In the wake of the September 2001 Washington, DC 20573–0001, 202–523– these local rules in a direct final action terrorist attacks on the United States, 5787. E-mail: [email protected]. without prior proposal because we the Coast Guard has had to reevaluate SUPPLEMENTARY INFORMATION: Section 3, believe these SIP revisions are not all of its on-going rulemakings to better Pub. L. 89–777, 46 U.S.C. app. 817e, controversial. If we receive adverse focus on those affecting homeland (‘‘section 3’’) 1 requires passenger vessel comments, however, we will publish a security. We have decided to withdraw timely withdrawal of the direct final this project, as well as all other projects 1 Section 3 provides, in pertinent part:
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operators (‘‘PVOs’’) 2 to establish their Cape Canaveral filed for bankruptcy. Commission required that a self- financial responsibility to indemnify After ceasing operations, Cape insuring PVO maintain both net worth passengers for nonperformance of Canaveral provided reimbursement to and working capital in an amount transportation. The Commission’s passengers. exceeding their UPR by 110%. Effective implementing regulations at 46 CFR part Even though passengers with tickets February 1, 1993, the Commission 540, subpart A, currently require PVOs on Premier and Commodore eliminated the working capital to evidence financial responsibility by experienced delays in being requirement, instead requiring at least means of self-insurance, guaranty, reimbursed,5 they ultimately were five years of operation in the U.S. trades escrow arrangement, surety bond, protected by surety bonds under the with a satisfactory explanation of any insurance policy, or combination Commission’s PVO program. AMCV, claims for nonperformance of thereof. Financial responsibility must be however, had evidenced its financial transportation, along with the necessary established in the amount of at least responsibility by means of the self- net worth.10 The Commission’s recent 110% of the PVO’s highest unearned insurance provisions of the experiences, particularly with AMCV, passenger revenue (‘‘UPR’’) 3 over the Commission’s rules (46 CFR 540.5(d)). indicate that length of operations and most recent two-year period, subject to Its passengers were limited to net worth are not sufficient criteria to a $15 million maximum for those PVOs reimbursement by credit card insure the necessary protection to the establishing financial responsibility by companies, third party travel insurance passenger public. means other than self-insurance or the passenger had purchased,6 or by One of the more serious criticisms of escrow agreement. However, those filing a proof of claim with the self-insurance is the virtual PVOs not qualifying by self-insurance appropriate bankruptcy court. impossibility of protecting passengers may elect to use a sliding scale formula Unfortunately, it appears that many of when an operator begins to show to compute the amount of financial AMCV’s passengers will receive little financial problems. Once its financial responsibility required, if they can reimbursement. situation begins to deteriorate, a self- establish five years operational Although self-insurers currently are insuring PVO may not be able to obtain experience in the U.S. trades with a required to submit quarterly and annual a surety bond or a guaranty. Typically, satisfactory explanation of any claim for balance sheets and income statements, to provide coverage in such a situation nonperformance. Self-insuring PVOs by the time such data are received, a bond issuer would require, in addition must establish net worth equal to at financial and economic conditions to the bond premium, secure, liquid 7 least 110% of UPR. could change substantially. collateral in an amount close to, if not Recent bankruptcies of several PVOs, Historically, self-insurers under the equal to, the face amount of the bond. coupled with the experience of Commission’s program typically are Providing such collateral, or even passengers in receiving payment in those with the greatest financial depositing UPR into an escrow 8 satisfaction of claims, have caused the vulnerability. Consequently, self- agreement, could cause the demise of a Commission to re-evaluate its rules insurance presents significantly greater PVO that is experiencing financial governing PVO coverage for risk to passengers than other methods problems. Similarly, for the Commission nonperformance. During the past fifteen available to PVOs to demonstrate the to revoke the PVO’s self-insurance months, the following cruise lines required evidence of financial certificate under such circumstances embarking passengers from U.S. ports responsibility. increases the risk that the PVO would be During the 1990s, the Commission ceased operations: Premier Cruise forced into bankruptcy, thus causing the raised the question of continuing to Operations Ltd., Commodore/Crown very nonperformance the Commission allow PVO self-insurance on a number Cruise Lines, Cape Canaveral Cruise seeks to prevent. of occasions.9 Prior to 1993, the Lines, Inc., and American Classic The Commission also has considered Voyages Company (‘‘AMCV’’) 4. All but recent developments impacting its 5 Premier’s surety began payments late in the summer of 2001, almost a year after its bankruptcy, passenger vessel operator financial (a) No person in the United States shall arrange, and Commodore’s began paying claims the first responsibility program. Those offer, advertise, or provide passage on a vessel week of January 2002, slightly more than a year having berth or stateroom accommodations for fifty after its bankruptcy. Order of Investigation, 55 FR 34610 (August 23, or more passengers and which is to embark 6 Often cancellation insurance is offered by both 1990). passengers at United States ports without there first the cruise line itself and by various third party Docket No. 91–32, Passenger Vessel Financial having been filed with the Federal Maritime insurers. Not all policies include coverage in the Responsibility Requirements for Indemnification of Commission such information as the Commission event of bankruptcy. Passengers for Nonperformance of Transportation— may deem necessary to establish the financial 7 The financial information submitted by AMCV Advance Notice of Proposed Rulemaking and responsibility of the person arranging, offering, for the quarter ending June 30, 2001, was submitted Notice of Inquiry, 56 FR 40586 (August 15, 1991). advertising, or providing such transportation, or, in on August 30, 2001. This data showed AMCV’s net lieu thereof, a copy of a bond or other security, in worth clearly exceeding that required by Docket No. 92–19, Revision of Financial such form as the Commission, by rule or regulation, Commission rules for self-insurers. Data for the Responsibility Requirements for Nonperformance of may require and accept, for indemnification of quarter ending September 30, 2001 had not been Transportation; Proposed Rule, 57 FR 19097 (May passengers for nonperformance of the submitted by the time AMCV filed for bankruptcy 4, 1992); Final Rule, 57 FR 41887 (September 14, transportation. on October 19, 2001. 1992). 2 For the purposes of section 3, a PVO is 8 Financial data for the two private PVOs Docket No. 92–50, Financial Responsibility considered to be any person in the United States presently establishing coverage under the Requirements for Nonperformance of that arranges, offers, advertises or provides passage Commission’s self-insurance criteria show both Transportation—Revision of Self-Insurance on a vessel having berth or stateroom companies operating with substantially less than Qualification Standards; Proposed Rule, 57 FR accommodations for fifty or more passengers and positive net working capital. The Commission 47830 (October 20, 1992); Final Rule, 57 FR 62479 which embarks passengers at U.S. ports. currently is working with each of these PVOs to (December 31, 1992). 3 UPR means ‘‘passenger revenue received for establish a more acceptable form of financial Docket No. 94–06, Financial Responsibility water transportation and all other accommodations, coverage. Requirements for Nonperformance of services, and facilities relating thereto not yet 9 Docket No. 90–1, Security for the Protection of Transportation; Proposed Rule, 59 FR 15149 (March performed.’’ (46 CFR § 540.2(i)). the Public, Maximum Required Performance 31, 1994); Further Proposed Rule, 61 33059 (June 4 Currently, the Delta Queen Steamboat Co. does Amount; Proposed Rule, 55 FR 1850 (January 19, 26, 1996). provide limited service via the operations of the 1990); Final Rule, 55 FR 34564 (August 23, 1990); Docket No. 94–21, Inquiry into Alternative Forms DELTA QUEEN and the MISSISSIPPI QUEEN. This Correction, 55 FR 35983 (September 4, 1990). of Financial Responsibility for Nonperformance of service is covered by an approved escrow Fact Finding Investigation No. 19, Passenger Transportation. 59 FR 52133 (October 26, 1994). agreement. Vessel Financial Responsibility Requirements, 10 Docket No. 92–50, supra.
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developments include recent cruise line amended (46 U.S.C. app. 1716(a), and 10. Items 11—14 are optional bankruptcies; the aftermath of the for the reasons stated above, the Federal methods; answer only the one item events of September 11, 2001; the Maritime Commission proposes to which is applicable to this application. current economic uncertainty and its amend 46 CFR part 540 as follows: Check the appropriate box below: effect on sales of cruises; and the [ ] Insurance (item 11). impending deployment of a substantial PART 540—PASSENGER VESSEL [ ] Escrow (item 12). increase in cruise ship capacity. These FINANCIAL RESPONSIBILITY [ ] Surety bond (item 13). developments, combined with the 1. The authority citation to Part 540 [ ] Guaranty (item 14). financial condition of current self- continues to read: * * * * * insurers, inevitably lead to the 15. [Removed] conclusion that self-insurance is an Authority: 5 U.S.C. 552, 553; secs. 2 and inadequate method of protecting 3, Pub. L. 89–777, 80 Stat.1356–1358 (46 By the Commission. U.S.C. app. 317(e, 817d); sec. 17(a) of the Bryant L. VanBrakle, passengers for non-performance. Shipping Act of 1984 (46 U.S.C. app. Secretary. Additionally, the Commission 1716(a)). occasionally has approved guarantors 2. Section 540.5 is amended as [FR Doc. 02–9796 Filed 4–22–02; 8:45 am] using the same financial standards as for follows: BILLING CODE 6730–01–P self-insurers, i.e. net worth. As with self- a. Revise the heading and insurers, the Commission finds those introductory text; requirements inadequate for guarantors, b. Revise paragraph (c); FEDERAL COMMUNICATIONS and proposes to modify its guaranty c. Remove paragraphs (d) and (e). COMMISSION requirements to limit guarantors to d. Redesignate paragraph (f) as Protection and Indemnity Associations paragraph (d). 47 CFR Part 73 with substantial assets, reserves and The revisions read as follows: reinsurance to protect covered PVOs. [MM 95–31; DA 02–804] § 540.5 Insurance, guaranties, and escrow Further, the current sliding scale Reexamination of the Comparative formula provides for reduced coverage, accounts. Except as provided in § 540.9(j), the Standards for Noncommercial the amount of which is not based on Educational Applicants; Association of financial criteria. There is no amount of coverage required under this section and § 540.6(b) shall be in an America’s Public Television Stations’ requirement for a fixed amount under Motion for Stay of Low Power the sliding scale provisions. As a result, amount determined by the Commission Television Auction (No. 81) the current formula reduces the required to be no less than 110 percent of the financial coverage to levels the unearned passenger revenue of the AGENCY: Federal Communications Commission now believes are applicant on the date within the two Commission. fiscal years immediately prior to the inadequate, in light of recent ACTION: filing of the application which reflects Proposed rule; extension of developments. comment period. Accordingly, the Commission is the greatest amount of unearned proposing to amend its rules to passenger revenue. The Commission, for SUMMARY: In this document, the Media eliminate self-insurance as an good cause shown, may consider a time Bureau of the Commission extends the acceptable method of evidencing period other than the previous two- deadline for filing comments and reply financial responsibility under section 3 fiscal-year requirement in this section or comments. The Bureau takes this action of Pub. L. 89–777. In addition, the other methods acceptable to the upon the motion of several interested proposed rule would eliminate the Commission to determine the amount of parties. A brief extension of time will reduced coverage requirements under coverage required. Evidence of adequate provide the public additional time to the Commission’s sliding scale formula. financial responsibility for the purposes consider the difficult legal and policy If made final, all PVOs who are self- of this subpart may be established by issues at stake in the proceeding, and insurers or who use the sliding scale one or a combination (including § 540.6 will not compromise the timely would be required to obtain coverage Surety Bonds) of the following methods: resolution of those issues. that comports with the Commission’s * * * * * DATES: Comments are due on or before new rules. (c) Filing with the Commission a May 15, 2002; reply comments are due The proposed rule contains no guaranty on Form FMC–133A, by a on or before June 17, 2002. additional information collection or Protection and Indemnity Association FOR FURTHER INFORMATION CONTACT: record keeping requirements and need with established assets, reserves and Eric not be submitted to OMB for approval reinsurance acceptable to the Bash, Policy Division, Media Bureau, under the Paperwork Reduction Act, 44 Commission, for indemnification of (202) 418–2130 or [email protected]. U.S.C. 3501 et seq. passengers in the event of SUPPLEMENTARY INFORMATION: This is a The Chairman certifies, pursuant to 5 nonperformance of water transportation. summary of the Media Bureau’s Order U.S.C. 605, that the proposed rule The requirements of Form FMC–133A, in MM 95–31; DA 02–804, adopted would not have a significant impact on however, may be amended by the April 9, 2002 and released April 9, a substantial number of small entities. Commission in a particular case for 2002. The complete text of this Order is available for inspection and copying List of Subjects in 46 CFR Part 540 good cause. * * * * * during normal business hours in the Insurance, Maritime carriers, 3. Amend Form FMC–131, Part II, as FCC Reference Center, Room CY–A257, Penalties, Reporting and record keeping follows: 445 12th Street, SW., Washington, DC requirements, Surety bonds, a. Revise Item 10. to read: and may also be purchased from the Transportation. b. Remove Item 15. Commission’s copy contractor, Qualex Therefore, pursuant to 5 U.S. C. 553; The revision reads as follows: International, Portals II, 445 12th Street section 3 Pub. L. 89–777, 80 Stat. 1356– SW., Room CY–B–402, Washington, DC 1358 (46 U.S.C. app. 817e); and section Part II—Performance 20554, telephone (202) 863–2893, 17(a) of the Shipping Act of 1984, as * * * * * facsimile (202) 863–2898, or via e-mail
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[email protected]. Comments filed Hampton Drive, Capitol Heights, MD Petitioners state that the Commission through the ECFS can be sent as an 20743. U.S. Postal Service first-class only provided the public forty-five days electronic file via the Internet to
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Notices Federal Register Vol. 67, No. 78
Tuesday, April 23, 2002
This section of the FEDERAL REGISTER DEPARTMENT OF COMMERCE Excluded from the scope of this order is contains documents other than rules or the following: (1) Plate not in coils, (2) proposed rules that are applicable to the International Trade Administration plate that is not annealed or otherwise public. Notices of hearings and investigations, [A–580–841] heat treated and pickled or otherwise committee meetings, agency decisions and descaled, (3) sheet and strip, and (4) flat rulings, delegations of authority, filing of petitions and applications and agency Notice of Amended Final Antidumping bars. In addition, certain cold-rolled statements of organization and functions are Duty Administrative Review: Stainless stainless steel plate in coils is also examples of documents appearing in this Steel Plate in Coils from the Republic excluded from the scope of this order. section. of Korea The excluded cold-rolled stainless steel plate in coils is defined as that AGENCY: Import Administration, merchandise which meets the physical BROADCASTING BOARD OF International Trade Administration, characteristics described above that has GOVERNORS Department of Commerce. undergone a cold-reduction process that ACTION: Notice of amended final results reduced the thickness of the steel by 25 Sunshine Act Meeting of antidumping duty administrative percent or more, and has been annealed review of stainless steel plate in coils and pickled after this cold reduction DATE AND TIME: April 25, 2002; 10 a.m.– from the Republic of Korea. process. 12:30 p.m. The merchandise subject to this order EFFECTIVE DATE: April 23, 2002. is currently classifiable in the PLACE: Radio Free Asia, Suite 300, 2025 FOR FURTHER INFORMATION CONTACT: Harmonized Tariff Schedule of the M Street, NW., Washington, DC 20036. Brandon Farlander and Robert Bolling, United States (HTS) at subheadings: CLOSED MEETING: The members of the AD/CVD Enforcement Group III, Office 7219.11.00.30, 7219.11.00.60, Broadcasting Board of Governors (BBG) 9, Import Administration, International 7219.12.00.06, 7219.12.00.21, will meet in closed session to review Trade Administration, U.S. Department 7219.12.00.26, 7219.12.00.51, and discuss a number of issues relating of Commerce, 14th Street and 7219.12.00.56, 7219.12.00.66, to U.S. Government-funded non- Constitution Avenue, N.W., 7219.12.00.71, 7219.12.00.81, military international broadcasting. Washington, DC 20230; telephone: (202) 7219.90.00.10, 7219.90.00.20, 482–0182 and (202) 482–3434, They will address internal procedural, 7219.90.00.25, 7219.90.00.60, respectively. budgetary, and personnel issues, as well 7219.90.00.80, 7220.11.00.00, as sensitive foreign policy issues SUPPLEMENTARY INFORMATION: 7220.90.00.10, 7220.90.00.15, 7220.90.00.60, and 7220.90.00.80. relating to potential options in the U.S. The Applicable Statute and Regulations Although the HTS subheadings are international broadcasting field. This Unless otherwise indicated, all provided for convenience and Customs meeting is closed because if open it citations to the Tariff Act of 1930, as purposes, the written description of the likely would either disclose matters that amended (‘‘the Act’’), are references to scope of the orders is dispositive. would be properly classified to be kept the provisions effective January 1, 1995, Amendment of Final Results secret in the interest of foreign policy the effective date of the amendments under the appropriate executive order (5 made to the Act by the Uruguay Round On December 4, 2001, the Department U.S.C. 552b.(c)(1)) or would disclose Agreements Act (‘‘URAA’’). In addition, of Commerce (‘‘the Department’’) issued information the premature disclosure of unless otherwise indicated, all citations its final results for the administrative which would be likely to significantly to the Department’s regulations are to review of the antidumping duty order frustrate implementation of a proposed the regulations codified at 19 C.F.R. Part on stainless steel plate in coils from the agency action. (5 U.S.C. 552b.(c)(9)(B)) 351 (2001). Republic of Korea for the November 4, In addition, part of the discussion will 1998, through April 30, 2000, period of relate solely to the internal personnel Scope of the Review review. See Stainless Steel Plate in Coils and organizational issues of the BBG or For purposes of this administrative From the Republic of Korea; Final the International Broadcasting Bureau. review, the product covered by this Results of Antidumping Duty (5 U.S.C. 552b.(c)(2) and (6)). order is certain stainless steel plate in Administrative Review (‘‘Final coils. Stainless steel is an alloy steel Results’’), 66 FR 64017 (December 11, CONTACT PERSON FOR MORE INFORMATION: containing, by weight, 1.2 percent or 2001). Persons interested in obtaining more less of carbon and 10.5 percent or more Interested parties did not file any information should contact either of chromium, with or without other ministerial error comments on the Final Brenda Hardnett or Carol Booker at elements. The subject plate products are Results. However, the Department (202) 401–3736. flat-rolled products, 254 mm or over in discovered that it unintentionally stated Dated: April 17, 2002. width and 4.75 mm or more in that the all others rate is the rate Carol Booker, thickness, in coils, and annealed or determined in the original less-than-fair otherwise heat treated and pickled or value (‘‘LTFV’’) investigation, rather Legal Counsel. otherwise descaled. The subject plate than the all others rate determined in [FR Doc. 02–10066 Filed 4–19–02; 2:04 pm] may also be further processed (e.g., the amended final determination of the BILLING CODE 8230–01–M cold-rolled, polished, etc.) provided that LTFV investigation. See Notice of it maintains the specified dimensions of Amendment of Final Determinations of plate following such processing. Sales at Less Than Fair Value: Stainless
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Steel Plate in Coils From the Republic DEPARTMENT OF COMMERCE SUMMARY: The National Institute of of Korea; and Stainless Steel Sheet and Standards and Technology (NIST) Strip in Coils From the Republic of International Trade Administration invites interested parties to attend Korea (‘‘Amended Final public meetings (Proposers’’ Determinations’’), 66 FR 45279 (August DEPARTMENT OF THE INTERIOR Conferences) to learn more about the 28, 2001). Advanced Technology Program (ATP). Office of Insular Affairs The format and content of each of the Our Final Results erroneously stated [Docket No. 990813222–0035–03] public meetings will be the same. The that the ‘‘all others rate’’ applicable to ATP is a competitive cost-sharing exporters or manufacturers who have RIN 0625–AA55 program designed for the Federal not been covered in this review or government to work in partnership with Allocation of Duty-Exemptions for investigated in the original LTFV industry to accelerate the development Calendar Year 2002 Among Watch investigation is 16.26 percent rather and broad dissemination of challenging, Producers Located in the Virgin than the 6.08 percent established in the high-risk technologies that offer the Islands Amended Final Determinations. Thus, potential for significant commercial the correct all others rate is the all AGENCY: Import Administration, payoffs and widespread benefits for the others rate established in the Amended International Trade Administration, nation. This unique government- Final Determinations. Department of Commerce; Office of industry partnership accelerates the The Department’s regulations define a Insular Affairs, Department of the development of emerging or enabling ministerial error as an ‘‘error in Interior. technologies leading to revolutionary addition, subtraction, or other ACTION: Notice; correction. new products, industrial processes and arithmetic function, clerical error services that can compete in rapidly SUMMARY: The Departments of resulting from inaccurate copying, changing world markets. The ATP Commerce and the Interior published a duplication, or the like, and any other challenges industry to take on higher document in the Federal Register of risk projects with commensurately similar type of unintentional error March 5, 2002, concerning the higher potential payoff to the nation. which the Secretary considers allocation of year 2002 duty-exemptions The ATP provides multi-year funding to ministerial,’’ citing 19 CFR 351.224(f). for watch producers located in the single companies and to industry-led Therefore, the Department notes that it Virgin Island and statistics on 2001 joint ventures. is now correcting this ministerial error shipments of watches and watch DATES: The public meetings will be held and stating that the correct all others movements into the customs territory of on May 8, 2002 and May 10, 2002 in rate is 6.08 percent, in accordance with the United States under the Act and the San Jose, California and Chicago the Amended Final Determinations. dollar amount of creditable corporate (Rosemont), Illinois, respectively. In Therefore, we are amending the final income taxes plus creditable wages paid addition, on April 18, 2002, ATP results of the antidumping duty by Virgin Island watch producers. The announced in the Federal Register a administrative review of stainless steel document contained information that is Notice of a Proposers’ Conference for plate in coils from the Republic of Korea incorrect and in need of clarification. May 2, 2002, in Gaithersburg, Maryland. to reflect the correction of the above- FOR FURTHER INFORMATION CONTACT: Faye All three meetings will be held from cited ministerial error. Robinson, (202) 482–3526. 9:30 a.m.–12:30 p.m. local time. No other changes have been made to Correction ADDRESSES: The meetings will be held at the following three locations: Thursday, the cash deposit requirements provided In the Federal Register of March 5, May 2, 2002, Gaithersburg Hilton, 620 in the Final Results. 2002, at 67 FR 9961, in the last Perry Parkway, Gaithersburg, Maryland, paragraph of the second column in the We are issuing and publishing this Tel: 301–977–8900, Fax: 301–977–3450; third line ‘‘508,506’’ is corrected to read determination and notice in accordance Wednesday, May 8, 2002, Double Tree ‘‘528,506’’. with sections 751(a)(1) and 777(i) of the Hotel, 2050 Gateway Place, San Jose, Act. Faryar Shirzad, California, Tel: 408–453–4000, Fax: Dated: April 12, 2002 Assistant Secretary, for Import 408–437–2898; and Friday, May 10, Faryar Shirzad, Administration, Department of Commerce. 2002, Holiday Inn O’Hare International, Richard Miller, 5440 North River Road, Chicago Assistant Secretary for Import (Rosemont), Illinois, Tel: 847–671–6350, Administration. Acting Director, Office of Insular Affairs, Department of the Interior. Fax: 847–671–5406. [FR Doc. 02–9916 Filed 4–22–02; 8:45 am] [FR Doc. 02–9917 Filed 4–22–02; 8:45 am] Information on the ATP may be BILLING CODE 3510–DS–S obtained from the following address: BILLING CODES 3510–DS–P; 4310–93–P National Institute of Standards and Technology, Advanced Technology DEPARTMENT OF COMMERCE Program, 100 Bureau Drive, Stop 4701, Administration Building 101, Room National Institute of Standards and A413, Gaithersburg, MD 20899–4701. Technology Additionally, information on the ATP is available on the Internet at the ATP Advanced Technology Program; website http://www.atp.nist.gov. Announcement of Public Meetings FOR FURTHER INFORMATION CONTACT: For AGENCY: National Institute of Standards further information, you may telephone and Technology, Commerce. Toni Nashwinter at 301–975–3780 or e- mail: [email protected]. ACTION: Notice of public meetings Requests for ATP information, (Proposers’ Conferences). application materials, and/or to have
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your name added to the ATP mailing CONSUMER PRODUCT SAFETY priorities for action at least 30 days list for future mailings may also be COMMISSION before the beginning of each fiscal year. made by: Section 4(j) of the CPSA provides (a) Calling the ATP toll-free ‘‘hotline’’ Commission Agenda and Priorities; further that before establishing its number at 1–800–ATP–FUND or 1–800– Public Hearing agenda and priorities, the Commission 287–3863. You will also have the option shall conduct a public hearing and AGENCY: Consumer Product Safety of hearing recorded messages regarding provide an opportunity for the Commission. the status of the ATP or speaking to one submission of comments. of our customer representatives who ACTION: Notice of public hearing. The Office of Management and Budget requires all Federal agencies to submit will take your name and address. If you SUMMARY: The Commission will conduct their budget requests 13 months before reach ATP voice mail, please speak a public hearing to receive views from the beginning of each fiscal year. The distinctly and slowly and spell the all interested parties about its agenda Commission is formulating its budget words that might cause confusion. and priorities for Commission attention request for fiscal year 2004, which Leave your phone number as well as during fiscal year 2004, which begins begins on October 1, 2003. This budget your name and address; October 1, 2003. Participation by (b) Sending a facsimile (fax) to 301– request must reflect the contents of the members of the public is invited. 926–9524 or 301–590–3053; or agency’s strategic plan. Written comments and oral (c) Sending electronic mail to Accordingly, the Commission will presentations concerning the [email protected]. Include your name, full conduct a public hearing on June 6, Commission’s agenda and priorities for mailing address, and phone number. 2002, to receive comments from the fiscal year 2004 will become part of the public concerning its agenda and SUPPLEMENTARY INFORMATION: The ATP public record. statute originated in the Omnibus Trade priorities for fiscal year 2004. The DATES: and Competitiveness Act of 1988 The hearing will begin at 10 a.m. Commissioners desire to obtain the (Public Law 100–418, 15 U.S.C. 278n) on June 6, 2002. The Office of the views of a wide range of interested and was amended by the American Secretary must receive written persons including consumers; Technology Preeminence Act of 1991 comments and requests from members manufacturers, importers, distributors, (Public Law 102–245). This law has of the public desiring to make oral and retailers of consumer products; been codified at 15 U.S.C. 278n. The presentations not later than May 23, members of the academic community; ATP implementing regulations are 2002. Persons desiring to make oral consumer advocates; and health and published at 15 CFR part 295, as presentations at this hearing must safety officers of state and local amended. The Catalog of Federal submit a written text of their governments. Domestic Assistance (CFDA) number presentations not later than May 30, The Commission is charged by and program title for the ATP are 2002. Congress with protecting the public from unreasonable risks of injury 11.612, Advanced Technology Program ADDRESSES: The hearing will be in room associated with consumer products. The (ATP). The purpose of the ATP is to 420 of the East-West Towers Building, Commission enforces and administers assist United States businesses to carry 4330 East-West Highway, Bethesda, the Consumer Product Safety Act (15 out research and development on high Maryland 20814. Written comments, U.S.C. 2051 et seq.); the Federal risk, high-payoff, emerging and enabling requests to make oral presentations, and Hazardous Substances Act (15 U.S.C. technologies. texts of oral presentations should be 1261 et seq.); the Flammable Fabrics Act These public meetings will provide captioned ‘‘Agenda and Priorities’’ and (15 U.S.C. 1191 et seq.); the Poison general information regarding the ATP, mailed to the Office of the Secretary, Prevention Packaging Act (15 U.S.C. details on the application process, tips Consumer Product Safety Commission, 1471 et seq.); and the Refrigerator Safety on preparing good proposals, and an Washington, DC 20207, or delivered to Act (15 U.S.C. 1211 et seq.). Standards opportunity for audience questions. The that office, room 502, 4330 East-West and regulations issued under provisions format and content of each of the public Highway, Bethesda, Maryland 20814. of those statutes are codified in the Code meetings will be the same. Comments, requests, and texts of oral of Federal Regulations, title 16, chapter No registration fee will be charged. presentations may also be filed by Registration for the public meetings is II. telefacsimile to (301) 504–0127 or by e- While the Commission has broad as follows: mail to [email protected]. For registration by phone, contact jurisdiction over products used by FOR FURTHER INFORMATION CONTACT: For consumers, its staff and budget are ATP at 1–800–ATP–FUND. information about the hearing, a copy of To register electronically, visit limited. Section 4(j) of the CPSA _ the Commission’s current strategic plan expresses Congressional direction to the www.atp.nist/gov/atp/reg form.htm. (revised September 2000), or to request Please select the ATP Proposers’ Commission to establish an agenda for an opportunity to make an oral action each fiscal year and, if feasible, Conference form and register. presentation, call or write Rockelle You may fax your registration by to select from that agenda some of those Hammond, Office of the Secretary, completing and printing the electronic projects for priority attention. These Consumer Product Safety Commission, form above. It should be faxed to 301– priorities are reflected in the current Washington, DC 20207; telephone (301) 926–9524 or 301–590–3053. strategic plan (revised September 2000). 504–0800; telefacsimile (301) 504–0127; Or, you may mail the registration form Persons who desire to make oral or by e-mail to [email protected]. The to the Advanced Technology Program, presentations at the hearing on June 6, strategic plan can also be obtained from NIST, 100 Bureau Drive, Stop 4701, 2002, should call or write Rockelle the CPSC website at www.cpsc.gov. Gaithersburg, MD 20899–4701. Hammond, Office of the Secretary, SUPPLEMENTARY INFORMATION: Section Consumer Product Safety Commission, Dated: April 17, 2002. 4(j) of the Consumer Product Safety Act Washington, DC 20207, telephone (301) Karen H. Brown, (CPSA) (15 U.S.C. 2053(j)) requires the 504–0800, telefax (301) 504–0127, or e- Deputy Director. Commission to establish an agenda for mail, [email protected], no later than [FR Doc. 02–9816 Filed 4–22–02; 8:45 am] action under the laws it administers, May 23, 2002. Persons who desire a BILLING CODE 3510–13–P and, to the extent feasible, to select copy of the current strategic plan may
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call or write Rockelle Hammond, office AND PROCESSING, Navy Case No. Dated: April 16, 2002. of the Secretary, CPSC, Washington DC 79,834.// T.J. Welsh, 20207, telephone (301) 504–0800, (301) Lieutenant Commander, Judge Advocate ADDRESSES: Requests for copies of the 504–0127, or may obtain it from the General’s Corps, U.S. Navy, Federal Register patents cited should be directed to the Commission’s website at www.cpsc.gov. Liaison Officer. Naval Research Laboratory, Code Presentations should be limited to [FR Doc. 02–9842 Filed 4–22–02; 8:45 am] 1008.2, 4555 Overlook Avenue, SW., approximately ten minutes. Persons BILLING CODE 3810–FF–P desiring to make presentations must Washington, DC 20375–5320, and must submit the written text of their include the Navy Case number. presentations to the Office of the FOR FURTHER INFORMATION CONTACT: Secretary not later than May 30, 2000. Catherine M. Cotell, Ph.D., Head, DEPARTMENT OF EDUCATION The Commission reserves the right to Technology Transfer Office, NRL Code impose further time limitations on all 1004, 4555 Overlook Avenue, SW., [CFDA No. 84.215F] presentations and further restrictions to Washington, DC 20375–5320, telephone avoid duplication of presentations. The (202) 767–7230. Due to U.S. Postal Office of Elementary and Secondary hearing will begin at 10 a.m. on June 6, delays, please fax (202) 404–7920, E- Education; Carol M. White Physical 2002 and will conclude the same day. Mail: [email protected] or use courier Education Program; Notice Inviting The Office of the Secretary should delivery to expedite response. Applications for New Awards for Fiscal receive written comments on the Year (FY) 2002 Commission’s agenda and priorities for (Authority: 35 U.S.C. 207, 37 CFR part fiscal year 2004, not later than May 23, 404) Purpose of Program 2002. Dated: April 15, 2002. This program provides grants to Dated: April 16, 2002. T.J. Welsh, initiate, expand, and improve physical Todd Stevenson, Lieutenant Commander, Judge Advocate education programs, including after- Secretary, Consumer Product Safety General’s Corps, U.S. Navy, Federal Register school programs, for students in Commission. Liaison Officer. kindergarten through 12th grade in [FR Doc. 02–9815 Filed 4–22–02; 8:45 am] [FR Doc. 02–9841 Filed 4–22–02; 8:45 am] order to make progress toward meeting BILLING CODE 6355–01–P BILLING CODE 3810–FF–P State standards for physical education. For FY 2002 the competition for new awards focuses on projects designed to DEPARTMENT OF DEFENSE DEPARTMENT OF DEFENSE meet the absolute priority we describe in the PRIORITIES section of this Department of the Navy Department of the Navy application notice. The Safe and Drug-Free Schools Notice of Availability of Invention for Notice of Availability of Invention for Program will administer this grant Licensing; Government-Owned Licensing; Government-Owned competition. Inventions Invention Eligible Applicants: Local educational agencies (LEAs) and community-based AGENCY: Department of the Navy, DoD. AGENCY: Department of the Navy, DoD. organizations (CBOs) ACTION: Notice. ACTION: Notice. Applications Available: April 23, SUMMARY: The inventions listed below 2002. Deadline for Transmittal of are assigned to the United States SUMMARY: The invention listed below is Applications: June 7, 2002. Government as represented by the assigned to the United States Deadline for Intergovernmental Secretary of the Navy and are available Government as represented by the Review: August 6, 2002. for licensing by the Department of the Secretary of the Navy and is available Estimated Available Funds: Navy. for licensing by the Department of the $49,500,000. The following patents are available for Navy. U.S. Patent No. 6,328,796 entitled Estimated Range of Awards: licensing: ‘‘Single-Crystal Material on Non-Single- $100,000—$500,000. U.S. Patent Application Serial No 09/ Crystalline Substrate’’, Navy Case No. Estimated Average Size of Awards: 671,166: MATRIX ASSISTED PULSED 78,978. LASER EVAPORATION DIRECT $300,000. WRITE, Navy Case No. 82,745.//U.S. ADDRESSES: Requests for copies of the Estimated Number of Awards: 165. Patent Application Serial No. 09/ patent cited should be directed to the Note: The Department is not bound by any 318,134: MAPLE–DW (MATRIX Naval Research Laboratory, Code estimates in this notice. ASSISTED PULSED LASER 1008.2, 4555 Overlook Avenue, SW., Project Period: Up to 12 months. EVAPORATION DIRECT WRITE), Navy Washington, DC 20375–5320, and must Applicable Regulations: (a) The Case No. 79,702.//U.S. Patent include the Navy Case number. Education Department General Application Serial No. 10/068,364: Administrative Regulations (EDGAR) in FOR FURTHER INFORMATION CONTACT: GENERATION OF BIOMATERIAL 34 CFR parts 74, 75, 77, 79, 80, 81, 82, Catherine M. Cotell, Ph.D., Head, MICROARRAYS BY LASER 85, 97, 98, and 99. TRANSFER, Navy Case No. 82,621.// Technology Transfer Office, NRL Code U.S. Patent Application Serial No. 10/ 1004, 4555 Overlook Avenue, SW., Priorities 068,315: GENERATION OF VIABLE Washington, DC 20375–5320, telephone This competition focuses exclusively CELL ACTIVE BIOMATERIAL (202) 767–7230. Due to U.S. Postal on projects designed to meet a priority PATTERNS BY LASER TRANSFER, delays, please fax (202) 404–7920, e- in the program statute (see 34 CFR Navy Case No. 83,665.//U.S. Patent mail: [email protected] or use courier 75.105(b)(2)(v)) and sections 5501–5507, Application Serial No. 09/619,442 delivery to expedite response. part D, subpart 10 of title V of the ESEA DIRECT–WRITE LASER TRANSFER (Authority: 35 U.S.C. 207, 37 CFR part 404) (20 U.S.C. 7261.
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Absolute Priority nonfunded applications from this (B) Administrative Control and Projects must initiate, expand, and competition. Direction improve physical education programs Participation of Faith-based The term includes any other public for students in one or more grades from Organizations institution or agency having kindergarten through grade 12 in order administrative control and direction of to make progress toward meeting State Faith-based organizations are eligible a public elementary school or secondary standards for physical education. to apply for grants under this school. For FY 2002 this priority is an competition provided they meet all absolute priority. Under 34 CFR statutory and regulatory requirements. (C) BIA Schools 75.105(c)(3) we consider only Application Requirements The term includes an elementary applications that meet the priority. school or secondary school funded by the Bureau of Indian Affairs, but only to Competitive Preference Priority To be considered for funding, an applicant is required to: the extent that including the school Within the absolute priority for this (1) Have conducted a needs makes the school eligible for programs competition for FY 2002, we will award assessment of the students being served for which specific eligibility is not five additional points to novice or to be served by its program in terms provided to the school in another applicants. These points are in addition of their progress toward meeting State provision of law and the school does not to any points the application earns standards for physical education; have a student population that is under the evaluation criteria for the smaller than the student population of program. (2) Based on the results of the needs the local educational agency receiving Note: The total number of points an assessment in (1), describe how the assistance under the ESEA with the application may earn is 105. proposed activities will help students smallest student population, except that make progress toward meeting State the school shall not be subject to the Other Requirements standards for physical education; and jurisdiction of any State educational The following requirements also (3) Set measurable goals and agency other than the Bureau of Indian apply to this competition. objectives for the proposed project in Affairs. terms of the student’s progress toward Administrative Costs meeting State standards for physical (D) Educational Service Agencies Not more than 5 percent of the grant education, and provide a description of The term includes educational service funds made available to an LEA or CBO how progress toward achieving the goals agencies and consortia of those in any fiscal year may be used for and objectives will be measured agencies. administrative costs. annually. (E) State Educational Agency Federal Share Prohibited Uses of Funds The term includes the State The Federal share for grants under Grant funds made available under this educational agency in a State in which this program may not exceed 90 percent program shall not be used for the the State educational agency is the sole of the total cost of a project. Applicants following: (1) To hire teachers or other educational agency for all public should calculate the maximum Federal staff to provide direct instructional or schools. share by determining the total cost of other services to students; (2) to support Community-based organization the proposed project and multiplying extracurricular activities such as team means a public or private nonprofit that amount by 0.90. sports and Reserve Officers’ Training organization of demonstrated Prohibition Against Supplanting Corps (ROTC) program activities; or (3) effectiveness that: (a) is representative of a community or significant segments of Grant funds made available under this to fund the construction of new a community; and (b) provides program shall be used to supplement buildings or other facilities such as educational or related services to and not supplant other Federal, State, or athletic tracks or tennis courts. individuals in the community. local funds available for physical Definitions Nonprofit as applied to an agency, education activities. For the purpose of this competition, organization, or institution, means that Participation of Home-Schooled or terms used in this notice have the it is owned and operated by one or more Private School Students following meanings: corporations or associations whose net An application for funds under this earnings do not benefit, and cannot Local Educational Agency program may provide for the lawfully benefit, any private participation of students enrolled in (A) General shareholder or entity. private, nonprofit elementary or Novice Applicant means— secondary schools and their parents and In general, the term local educational (1) Any applicant for a grant from ED teachers, or home-schooled students agency means a public board of that— and their parents and teachers. education or other public authority (i) Has never received a grant or legally constituted within a State for subgrant under the Carol M. White Equitable Distribution either administrative control or Physical Education program; We will ensure, to the extent direction of, or to perform a service (ii) Has never been a member of a practicable, an equitable distribution of function for, public elementary schools group application, submitted in awards among applicants serving urban or secondary schools in a city, county, accordance with § 75.127–75.129 of and rural areas. township, school district, or other EDGAR, that received a grant under the political subdivision of a State, or of or Carol M. White Physical Education Additional Awards for a combination of school districts or program; and Contingent upon the availability of counties that is recognized in a State as (iii) Has not had an active funds, we may make additional awards an administrative agency for its public discretionary grant from the Federal in FY 2003 from the rank-ordered list of elementary or secondary schools. Government in the five years before the
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deadline date for applications under (c) The extent to which the goals, about/ordering.jsp>http://www.ed.gov/ this competition. objectives, and outcomes to be achieved about/ordering.jsp. E-mail (2) In the case of a group application by the proposed project are clearly VerDate 11 Application for Federal Assistance (ED Committee Act, and in accordance with Washington, DC 20585, (202) 586–7092 Form 424), Budget Information—Non- section 102–3.65, title 41 of the Code of or (202) 586–6279 (fax). Construction Programs, (ED Form 524), Federal Regulations, and following SUPPLEMENTARY INFORMATION: The and all necessary assurances and consultation with the Committee purpose of the Secretary of Energy certifications. Management Secretariat, General Advisory Board (The Board) is to • Within three working days of Services Administration, notice is provide the Secretary of Energy with submitting your electronic application, hereby given that the Advanced essential independent advice and fax a signed copy of the Application for Scientific Computing Advisory recommendations on issues of national Federal Assistance (ED Form 424) to the Committee has been renewed for a two- importance. The Board and its Application Control Center following year period beginning April, 2002. The subcommittees provide timely, these steps: Committee will provide advice to the balanced, and authoritative advice to 1. Print ED Form 424 from the e- Director, Office of Science, on the the Secretary of Energy on the APPLICATION system. Advanced Scientific Computing Department’s management reforms, 2. Make sure that the applicant’s Research Program managed by the research, development and technology Authorizing Representative signs this Office of Advanced Scientific activities, energy and national security form. Computing Research. responsibilities, environmental cleanup 3. Before faxing this form, submit The renewal of the Advanced activities, and economic issues relating your electronic application via the e- Scientific Computing Advisory to energy. Committee has been determined to be APPLICATION system. You will receive Tentative Agenda an automatic acknowledgement, which essential to the conduct of the will include a PR/Award number an Department of Energy business and to The agenda for the May 8th meeting identifying number unique to your be in the public interest in connection has not been finalized. However, the application). with the performance of duties imposed meeting will include a series of briefings 4. Place the PR/Award number in the upon the Department of Energy by law. and discussions on the challenges facing upper right corner ED Form 424. The Committee will operate in the Department of Energy and its future 5. Fax ED Form 424 to the accordance with the provisions of the mission. Board and subcommittee Application Control Center within three Federal Advisory Committee Act, the activities for the coming year will be business days of submitting your Department of Energy Organization Act identified; these are anticipated to electronic application at (202) 260– (Public Law No. 95–91), and rules and include a discussion of Department of 1349. regulations issued in implementation of Energy Laboratory Operations, future • We may request that you give us those Acts. department science priorities, and other original signatures on all other forms at Further information regarding this current and new business. Members of a later date. Advisory Committee may be obtained the public wishing to comment on You may access the electronic grant from Mrs. Rachel Samuel at (202) 586– issues before the Secretary of Energy application for the Carol M. White 3279. Advisory Board will have an Physical Education Program at: http://e- opportunity to address the Board during Issued in Washington, DC, on April 18, the afternoon period for public grants.ed.gov. 2002. We have included additional comment. The final agenda will be James N. Solit, available at the meeting. information on the e-APPLICATION Advisory Committee Management Officer. pilot project (see Parity Guidelines [FR Doc. 02–9950 Filed 4–22–02; 8:45 am] Public Participation between Paper and Electronic BILLING CODE 6450–01–P In keeping with procedures, members Applications) in the application of the public are welcome to observe the package. business of the Secretary of Energy If you want to apply for a grant and DEPARTMENT OF ENERGY Advisory Board and submit written be considered for funding, you must comments or comment during the meet the deadline requirements Secretary of Energy Advisory Board; scheduled public comment period. The included in this notice. Notice of Open Meeting Chairman of the Board is empowered to Program Authority: 20 U.S.C. 7261. AGENCY: Department of Energy. conduct the meeting in a fashion that SUMMARY: This notice announces an will, in the Chairman’s judgment, Dated: April 17, 2002. open meeting of the Secretary of Energy facilitate the orderly conduct of Susan B. Neuman, Advisory Board. The Federal Advisory business. During its meeting in Assistant Secretary for Elementary and Committee Act (Public Law 92–463, 86 Arlington, Virginia, the Board welcomes Secondary Education. Stat. 770), requires that agencies publish public comment. Members of the public [FR Doc. 02–9934 Filed 4–22–02; 8:45 am] these notices in the Federal Register to will be heard in the order in which they BILLING CODE 4000–01–P allow for public participation. sign up at the beginning of the meeting. Name: Secretary of Energy Advisory The Board will make every effort to hear Board. the views of all interested parties. You may submit written comments to Dr. DEPARTMENT OF ENERGY DATES AND TIMES: Wednesday, May 8, Craig R. Reed, Executive Director, 2002, 1 p.m.–6 p.m. Office of Science; Advanced Scientific Secretary of Energy Advisory Board, ADDRESSES: Ritz-Carlton, Pentagon City, AB–1, U.S. Department of Energy, 1000 Computing Advisory Committee; Diplomat Conference Room, 1250 South Renewal Independence Avenue, SW, Hayes Street, Arlington, Virginia 22202. Washington, DC 20585. AGENCY: Department of Energy. FOR FURTHER INFORMATION CONTACT: Dr. Minutes ACTION: Notice of Renewal. Craig R. Reed, Executive Director, Secretary of Energy Advisory Board A copy of the minutes and a transcript SUMMARY: Pursuant to section (AB–1), U.S. Department of Energy, of the meeting will be made available 14(a)(2)(A) of the Federal Advisory 1000 Independence Avenue, SW, for public review and copying VerDate 11 approximately 30 days following the determining the appropriate action to be or protests must be filed in accordance meeting at the Freedom of Information taken, but will not serve to make with Section 154.210 of the Public Reading Room, 1E–190 Forrestal protestants parties to the proceedings. Commission’s regulations. Protests will Building, 1000 Independence Avenue, Any person wishing to become a party be considered by the Commission in SW, Washington, DC, between 9 a.m. must file a motion to intervene. Copies determining the appropriate action to be and 4 p.m., Monday through Friday of this filing are on file with the taken, but will not serve to make except Federal holidays. Further Commission and are available for public protestants parties to the proceedings. information on the Secretary of Energy inspection. This filing may also be Any person wishing to become a party Advisory Board and its subcommittees viewed on the web at http:// must file a motion to intervene. Copies may be found at the Board’s Web site, www.ferc.gov using the ‘‘RIMS’’ link, of this filing are on file with the located at http://www.hr.doe.gov/seab. select ‘‘Docket#’’ and follow the Commission and are available for public Issued at Washington, DC, on April 18, instructions (call 202–208–2222 for inspection. This filing may also be 2002. assistance). Comments, protests and viewed on the web at http:// Rachel M. Samuel, interventions may be filed electronically www.ferc.gov using the ‘‘RIMS’’ link, Deputy Advisory Committee Management via the Internet in lieu of paper. See, 18 select ‘‘Docket#’’ and follow the Officer. CFR 385.2001(a)(1)(iii) and the instructions (call 202–208–2222 for [FR Doc. 02–9949 Filed 4–22–02; 8:45 am] instructions on the Commission’s web assistance). Comments, protests and BILLING CODE 6450–01–P site under the ‘‘e-Filing’’ link. interventions may be filed electronically via the Internet in lieu of paper. See, 18 Magalie R. Salas, CFR 385.2001(a)(1)(iii) and the Secretary. DEPARTMENT OF ENERGY instructions on the Commission’s Web [FR Doc. 02–9899 Filed 4–22–02; 8:45 am] site under the ‘‘e-Filing’’ link. Federal Energy Regulatory BILLING CODE 6717–01–P Commission Magalie R. Salas, Secretary. [Docket No. GT02–14–000] DEPARTMENT OF ENERGY [FR Doc. 02–9900 Filed 4–22–02; 8:45 am] BILLING CODE 6717–01–P Central New York Oil And Gas Federal Energy Regulatory Company, L.L.C; Notice of Tariff Filing Commission April 17, 2002. [Docket No. GT02–15–000] DEPARTMENT OF ENERGY Take notice that on April 11, 2002, Central New York Oil And Gas Horizon Pipeline Company, L.L.C.; Federal Energy Regulatory Company, LLC (CNYOG) tendered for Notice of Negotiated Rates Commission filing as part of its FERC Gas Tariff, [Docket No. RP02–227–000] April 17, 2002. Original Volume No. 1, the following Take notice that on April 11, 2002, revised tariff sheets to be effective May Midwestern Gas Transmission Horizon Pipeline Company, L.L.C. 11, 2002: Company; Notice of Cashout Report (Horizon) tendered for filing to become First Revised Sheet No. 5 part of its FERC Gas Tariff, Original April 17, 2002. First Revised Sheet No. 14 Volume No. 1, certain tariff sheets to be Take notice that on April 12, 2002, First Revised Sheet No. 15 First Revised Sheet No. 19 effective April 15, 2002. Midwestern Gas Transmission Company First Revised Sheet No. 31 Horizon states that the purpose of this (Midwestern) tendered for filing, its First Revised Sheet No. 32 filing is to implement two negotiated eighth annual cashout report for the First Revised Sheet No. 122 rate transactions entered into by September 2000 through August 2001 First Revised Sheet No. 132 Horizon and (i) Northern Illinois Gas period. First Revised Sheet No. 134 Company, dba Nicor Gas and (ii) Midwestern states that the cashout First Revised Sheet No. 138 Ameren Energy Gathering Company report reflects a cashout gain during this CNYOG states that the purpose of its under Horizon’s Rate Schedule FTS period of $102,441. Midwestern will filing is to conform the electronic pursuant to Section 33 of the General credit this gain to its firm shippers in its version of its tariff sheets, used for Terms and Conditions of Horizon’s next issuance of invoices. posting on the Commission’s FASTR Tariff. Horizon states that the negotiated Any person desiring to be heard or to system, with the paper copies rate agreements do not deviate in any protest said filing should file a motion previously accepted by the Commission. material respect from the applicable to intervene or a protest with the CNYOG further states that it has form of service agreement in Horizon’s Federal Energy Regulatory Commission, served copies of this filing upon the Tariff. 888 First Street, NE., Washington, DC company’s jurisdictional customers and Horizon states that copies of the filing 20426, in accordance with sections interested state commissions. are being mailed to its interested state 385.214 or 385.211 of the Commission’s Any person desiring to be heard or to commission and all parties set out on rules and regulations. All such motions protest said filing should file a motion the Commission’s official service lists in or protests must be filed on or before to intervene or a protest with the Docket Nos. CP00–129–000, CP00–130– April 24, 2002. Protests will be Federal Energy Regulatory Commission, 000 and CP00–131–000. considered by the Commission in 888 First Street, NE., Washington, DC Any person desiring to be heard or to determining the appropriate action to be 20426, in accordance with sections protest said filing should file a motion taken, but will not serve to make 385.214 or 385.211 of the Commission’s to intervene or a protest with the protestants parties to the proceedings. rules and regulations. All such motions Federal Energy Regulatory Commission, Any person wishing to become a party or protests must be filed in accordance 888 First Street, NE., Washington, DC must file a motion to intervene. Copies with section 154.210 of the 20426, in accordance with Sections of this filing are on file with the Commission’s regulations. Protests will 385.214 or 385.211 of the Commission’s Commission and are available for public be considered by the Commission in rules and regulations. All such motions inspection. This filing may also be VerDate 11 viewed on the web at http:// guarantor, indorser, surety or otherwise BP Pipelines has denied Sinclair access www.ferc.gov using the ‘‘RIMS’’ link, in respect of any security of another to the Western Corridor pipeline and select ‘‘Docket#’’ and follow the person; provided that such issue or has charged unjust and unreasonable instructions (call 202–208–2222 for assumption is for some lawful object and unduly discriminatory and unduly assistance). Comments, protests and within the corporate purposes of the preferential rates for pipeline interventions may be filed electronically Ontario Energy, compatible with the transportation services on the Western via the Internet in lieu of paper. See, 18 public interest, and reasonably Corridor line and has therefore violated CFR 385.2001(a)(1)(iii) and the necessary or appropriate for such the Interstate Commerce Act. Sinclair instructions on the Commission’s Web purposes. further alleges that Rocky Mountain has site under the ‘‘e-Filing’’ link. (F) The Commission reserves the right violated and is continuing to violate the to modify this order to require a further Interstate Commerce Act by charging Magalie R. Salas, showing that neither public nor private unjust and unreasonable and unduly Secretary. interests will be adversely affected by discriminatory and unduly preferential [FR Doc. 02–9905 Filed 4–22–02; 8:45 am] continued Commission approval of rates for pipeline transportation services BILLING CODE 6717–01–P Ontario Energy’s issuances of securities on the Western Corridor line. or assumptions of liabilities. * * * Any person desiring to be heard or to Notice is hereby given that the protest this filing should file a motion DEPARTMENT OF ENERGY deadline for filing motions to intervene to intervene or protest with the Federal or protests, as set forth above, is May 13, Federal Energy Regulatory Energy Regulatory Commission, 888 2002. Commission First Street, NE., Washington, DC 20426, Copies of the full text of the Order are in accordance with Rules 211 and 214 [Docket No. ER02–1021–000] available from the Commission’s Public of the Commission’s Rules of Practice Reference Branch, 888 First Street, NE., and Procedure (18 CFR 385.211 and Ontario Energy Trading International Washington, DC 20426. The Order may 385.214). All such motions or protests Corporation; Notice of Issuance of also be viewed on the Internet must be filed on or before May 6, 2002. Order at http://www.ferc.fed.us/online/ Protests will be considered by the April 17, 2002. rims.htm (call 202–208–2222 for Commission in determining the Ontario Energy Trading International assistance). Comments, protests, and appropriate action to be taken, but will Corporation (Ontario Energy) filed, interventions may be filed electronically not serve to make protestants parties to under section 205 of the Federal Power via the internet in lieu of paper. See, 18 the proceeding. Any person wishing to Act in the above-docketed proceeding, CFR 385.2001(a)(1)(iii) and the become a party must file a motion to seeking to sell capacity, energy, and instructions on the Commission’s web intervene. Answers to the complaint ancillary services and to resell site at shall also be due on or before May 6, transmission capacity, at market based http://www.ferc.fed.us/efi/doorbell.htm. 2002. Copies of this filing are on file rates. Ontario Energy also requested Linwood A. Watson, Jr., with the Commission and are available for public inspection. This filing may certain waivers and authorizations. In Deputy Secretary. particular, Ontario Energy requested also be viewed on the Web at http:// [FR Doc. 02–9898 Filed 4–22–02; 8:45 am] www.ferc.gov using the ‘‘RIMS’’ link, that the Commission grant blanket BILLING CODE 6717–01–P approval under 18 CFR Part 34 of all select ‘‘Docket#’’ and follow the future issuances of securities and instructions (call 202–208–2222 for assistance). Comments, protests, assumptions of liabilities by Ontario DEPARTMENT OF ENERGY Energy. interventions and answers may be filed On April 11, 2002, the Commission Federal Energy Regulatory electronically via the Internet in lieu of issued an Order Conditionally Granting Commission paper. See, 18 CFR 385.2001(a)(1)(iii) Market-Based rate Authority And and the instructions on the [Docket No. OR02–6–000] Granting Waivers (Order) that granted Commission’s Web site under the ‘‘e- Filing’’ link. Ontario Energy’s request for blanket Sinclair Oil Corporation, 550 East approval under Part 34, subject to the South Temple, Salt Lake City, UT Magalie R. Salas, conditions found in Ordering 84102, Complainant, v. Rocky Secretary. Paragraphs (C), (D), and (F): Mountain Pipeline System LLC, 555 [FR Doc. 02–9902 Filed 4–22–02; 8:45 am] (C) Within 30 days of the date of Seventeenth Street, Denver, CO 80202 BILLING CODE 6717–01–P issuance of this order, any person and BP Pipelines (North America), Inc., desiring to be heard or to protest the 801 Warrenville Road, Suite 700, Lisle, Commission’s blanket approval of IL 60532, Respondents; Notice of DEPARTMENT OF ENERGY issuances of securities or assumptions of Complaint liabilities by Ontario Energy should file Federal Energy Regulatory a motion to intervene or protest with the April 17, 2002. Commission Federal Energy Regulatory Commission, Take notice that on April 15, 2002, 888 First Street, NE., Washington, DC Sinclair Oil Corporation (Sinclair) [Project No. 372] 20426, in accordance with rules 211 and tendered for filing a Complaint against 214 of the Commission’s rules of Rocky Mountain Pipeline System LLC Southern California Edison Company; practice and procedure, 18 CFR 385.211 (Rocky Mountain) and BP Pipelines Notice of Teleconference and 385.214. (North America), Inc. (BP Pipelines). (D) Absent a request to be heard Sinclair states in its Complaint that it April 17, 2002. within the period set forth in Ordering purchases crude oil shipped on the a. Date and time of Teleconference: Paragraph (C) above, Ontario Energy is Western Corridor pipeline from Thursday, May 2, 2002, 1 p.m.. hereby authorized to issue securities International Boundary, Montana to b. FERC Contact: Nan Allen at 202– and assume obligations and liabilities as Casper, Wyoming. Sinclair alleges that 219–2938, [email protected]. VerDate 11 c. Purpose of the Teleconference: A with section 154.210 of the facility located in North Las Vegas, teleconference will be convened by Commission’s regulations. Protests will Nevada (the Facility). The Facility will Commission staff to discuss measures be considered by the Commission in consist of four gas-fired turbine proposed by the Southern California determining the appropriate action to be generators and ancillary equipment Edison Company (SCE) to protect the taken, but will not serve to make having a generating capability of federally-listed, threatened bald eagle protestants parties to the proceedings. approximately 230 MW. and valley elderberry longhorn beetle. Any person wishing to become a party Applicant stated that it served its SCE has applied for a new license to must file a motion to intervene. Copies application on the following: Public operate the Lower Tule River of this filing are on file with the Utilities Commission of Nevada, South Hydroelectric Project, FERC No. 372, Commission and are available for public Dakota Public Utility Commission, Tulare County, California. inspection. This filing may also be Wyoming Public Service Commission, d. Proposed Agenda: (1) Introduction; viewed on the web at http:// the Securities and Exchange (2) Recognition of Participants; (3) www.ferc.gov using the ‘‘RIMS’’ link, Commission, and Nevada Power Teleconference Procedures; (4) SCE’s select ‘‘Docket#’’ and follow the Company. proposed measures; and (5) Follow-up instructions (call 202–208–2222 for actions. assistance). Comments, protests and Comment Date: May 6, 2002. e. Only the U.S. Fish and Wildlife interventions may be filed electronically 3. Las Vegas Cogen Energy Financing Service and the Commission are via the Internet in lieu of paper. See, 18 Company, L.L.C. consulting parties for purposes of the CFR 385.2001(a)(1)(iii) and the teleconference. However, the license instructions on the Commission’s Web [Docket No. EG02–118–000] applicant and other interested parties to site under the ‘‘e-Filing’’ link. Take notice that on April 11, 2002, the relicensing proceeding will be Magalie R. Salas, Las Vegas Cogen Energy Financing permitted to provide relevant Company, L.L.C. (Applicant), filed with information, consistent with the limited Secretary. [FR Doc. 02–9904 Filed 4–22–02; 8:45 am] the Federal Energy Regulatory purpose of the teleconference. Commission (Commission) an Any party wishing to participate in BILLING CODE 6717–01–P application for determination of exempt the teleconference should contact Nan wholesale generator status pursuant to Allen, 202–219–2938 or part 365 of the Commission’s [email protected], by April 26, 2002. DEPARTMENT OF ENERGY regulations. Magalie R. Salas, Federal Energy Regulatory Applicant is a Delaware limited Secretary. Commission liability company formed for the [FR Doc. 02–9903 Filed 4–22–02; 8:45 am] [Docket No. EC98–40–000, et al.] exclusive purpose of acquiring, owning, BILLING CODE 6717–01–P and leasing to Las Vegas Cogeneration American Electric Power Company., et II, L.L.C. (LV Cogen II), four gas-fired al.; Electric Rate and Corporate turbine generators and associated DEPARTMENT OF ENERGY Regulation Filings generator step-up transformers having a generating capability of approximately Federal Energy Regulatory April 15, 2002. 230 MW. LV Cogen II will incorporate Commission Take notice that the following filings the generating equipment into its [Docket No. RP96–312–068] have been made with the Commission. generating facility located in North Las Any comments should be submitted in Vegas, Nevada (the Facility) and sell the Tennessee Gas Pipeline Company; accordance with Standard Paragraph E output of the Facility exclusively at Notice of Negotiated Rates at the end of this notice. wholesale. April 17, 2002. 1. American Electric Power Company Applicant stated that it served its Take notice that on April 2, 2002, [Docket Nos. EC98–40–000, ER98–2770–000, application on the following: Public Tennessee Gas Pipeline Company and ER98–2786–000] Utilities Commission of Nevada, South (Tennessee), tendered for filing a notice Take notice that on April 11, 2002, Dakota Public Utility Commission, of a change in the rates for the October the Market Monitor filed Market Wyoming Public Service Commission, 18, 2001 Negotiated Rate Agreement Monitoring of American Electric Rower the Securities and Exchange between Tennessee and NJR Energy their seventh quarterly report to the Commission, and Nevada Power Services (Negotiated Rate Agreement) Federal Energy Regulatory Commission. Company. which was accepted by the Commission Comment Date: May 2, 2002. Comment Date: May 6, 2002. in Tennessee Gas Pipeline Company, 97 2. Las Vegas Cogeneration II, L.L.C. FERC ¶ 61,248 (2001) (November 30 4. Exelon Generation Company, LLC Order). As agreed to in the November 30 [Docket No. EG02–117–000] [Docket No. ER01–948–000] Order, Tennessee is providing notice of Take notice that on April 11, 2002, substitution of a fixed price effective Las Vegas Cogeneration II, L.L.C. Take notice that on April 10, 2002, April 1, 2002. (Applicant), filed with the Federal Exelon Generation Company, LLC Any person desiring to be heard or to Energy Regulatory Commission (Exelon Generation), requested the protest said filing should file a motion (Commission) an application for Federal Energy Regulatory Commission to intervene or a protest with the determination of exempt wholesale to act on Exelon Generation’s January Federal Energy Regulatory Commission, generator status pursuant to Part 365 of 12, 2001, filing in the captioned docket, 888 First Street, NE., Washington, DC the Commission’s regulations. which Exelon Generation on February 20426, in accordance with sections Applicant is a Delaware limited 20, 2001, requested be held in abeyance 385.214 or 385.211 of the Commission’s liability company formed for the pending further action by Exelon rules and regulations. All such motions exclusive purpose of owning and selling Generation. or protests must be filed in accordance the output at wholesale of a generating Comment Date: May 1, 2002. VerDate 11 5. California Independent System (PWCC) tendered for filing with the for Long-Term Firm Point-to-Point Operator Corporation Federal Energy Regulatory Commission Transmission Service Agreements [Docket No. ER02–922–001] (Commission) two Service Agreements between ASC and Ameren Energy, under the Western Systems Power Pool Energy-Koch Trading, LP and Upper Take notice that on April 11, 2002, Agreement for service to APS Energy Peninsula Power Company and Non- the California Independent System Services. PWCC has requested waiver of Firm Point-to-Point Transmission Operator Corporation (ISO) submitted a the Commission’s Notice Requirements Service between ASC and Upper filing in compliance with the for effective dates as stated in the Peninsula Power Company (the parties). Commission’s March 27, 2002 ‘‘Order service agreements. ASC asserts that the purpose of the Accepting In Part And Rejecting In Part PWCC has requested confidential Tariff Amendment No. 42 And Agreements is to permit ASC to provide treatment of certain privileged Dismissing Complaint,’’ 98 FERC transmission service to the parties information pursuant to 18 CFR 388.112 ¶ 61,327. The ISO states that it has pursuant to Ameren’s Open Access in the long-term contracts. A copy of served copies of this filing upon all Transmission Tariff. this filing has been served on APS parties listed on the official service list Comment Date: May 2, 2002. Energy Services. for this proceeding. Comment Date: May 2, 2002. Comment Date: May 2, 2002. 12. West Penn Power Company (dba 9. Yuba City Energy Center, LLC Allegheny Power) 6. Entergy Services, Inc. [Docket No. ER02–1512–000] [Docket No. ER02–1515–000] [Docket No. ER02–1508–000] Take notice that on April 11, 2002, Take notice that on April 10, 2002, Take notice that on April 11, 2002, West Penn Power Company, dba Entergy Services, Inc., (Entergy Yuba City Energy Center, LLC, (Yuba Services), on behalf of the Entergy City) tendered for filing, under Allegheny Power, filed an Addendum to Operating Companies, tendered for section’205 of the Federal Power Act , its Electric Service Agreement with filing a Short-Term Market Rate Sales a request for authorization to make Duquesne Light Company to add a Agreement between Entergy Services wholesale sales of electric energy, delivery point. An effective date for the and Alabama Electric Cooperative, Inc. capacity and ancillary services at new delivery point of April 19, 2002 is under Entergy Services’ Rate Schedule market-based rates, to reassign requested. SP. transmission capacity, and to resell firm Copies of the filing have been Comment Date: May 1, 2002. transmission rights. Yuba City proposes provided to the Public Utilities to own and operate a 48.7 megawatt Commission of Ohio, the Pennsylvania 7. Central Hudson Gas & Electric simple cycle natural gas-fired peaking Public Utility Commission, the Corporation unit located in Sutter County, Maryland Public Service Commission, [Docket No. ER02–1509–000] California. the Virginia State Corporation Take notice that on April 11, 2002, Comment Date: May 2, 2002. Commission, the West Virginia Public Central Hudson Gas & Electric 10. Public Service Company of New Service Commission and all parties of Corporation (Central Hudson),tendered Mexico record. for filing a Notice of Cancellation of [Docket No. ER02–1513–000] Comment Date: May 2, 2002. Rate Schedule FERC No. 201. Rate Schedule FERC No. 201 sets forth the Take notice that on April 11, 2002, Standard Paragraph terms and charges for transmission Public Service Company of New Mexico facilities provided by Central Hudson to (PNM) submitted for filing four E. Any person desiring to be heard or Consolidated Edison Company of New executed service agreements for point- to protest such filing should file a York, Inc. (Con Edison) and Niagara to-point transmission service, under the motion to intervene or protest with the Mohawk Power Corporation (Niagara terms of PNM’s Open Access Federal Energy Regulatory Commission, Mohawk) for the transmission of output Transmission Tariff, with the following 888 First Street, NE., Washington, DC from the Roseton Generating Station. customers: UBS AG, London Branch 20426, in accordance with Rules 211 The aforementioned cancellation is (UBS AG) (one agreement for Non-Firm and 214 of the Commission’s Rules of the result of the sale of the Roseton Service and one agreement for Short- Practice and Procedure (18 CFR 385.211 Generating Station, which was owned Term Firm Service) and PNM Bulk and 385.214). All such motions or by the Company and Con Edison and Power Marketing (PNM BPM) (one protests should be filed on or before the Niagara Mohawk as tenants-in-common, agreement for Non-Firm Service and one comment date. Protests will be to affiliates of Dynegy Power Corp. on agreement for Short-Term Firm Service). considered by the Commission in January 30, 2001. PNM requests April 1, 2002, as the determining the appropriate action to be Central Hudson requests waiver on effective date for each agreement. PNM’s taken, but will not serve to make the notice requirements set forth in 18 filing is available for public inspection protestants parties to the proceeding. CFR 35.11 of the Regulations to permit at its offices in Albuquerque, New Any person wishing to become a party the cancellation to become effective Mexico. Copies of the filing have been must file a motion to intervene. Copies January 1, 2002. sent to UBS AG and PNM BPM, as well of this filing are on file with the Central Hudson states that a copy of as to the New Mexico Public Regulation Commission and are available for public its filing was served on Con Edison, Commission and the New Mexico inspection. This filing may also be Niagara Mohawk and the State of New Attorney General. viewed on the web at http:// York Public Service Commission. Comment Date: May 2, 2002. www.ferc.gov using the ‘‘RIMS’’ link, Comment Date: May 2, 2002. 11. Ameren Services Company select ‘‘Docket#’’ and follow the instructions (call 202–208–2222 for 8. Pinnacle West Capital Corporation [Docket No.ER02–1514–000] assistance). Comments, protests and [Docket No. ER02–1510–000] Take notice that on April 11, 2002, interventions may be filed electronically Take notice that on April 11, 20002, Ameren Services Company (ASC) via the Internet in lieu of paper. See, 18 Pinnacle West Capital Corporation tendered for filing Service Agreements CFR 385.2001(a)(1)(iii) and the VerDate 11 instructions on the Commission’s web Illinois Power requests an effective designated as Service Agreement 666 site under the ‘‘e-Filing’’ link. date of March 15, 2002, for the and 667 under PJM Interconnection Agreement and accordingly seeks a L.L.C.’s (PJM) FERC Electric tariff Linwood A. Watson, Jr., waiver of the Commission’s notice Fourth Revised Volume No. 1. Deputy Secretary. requirement. Illinois Power states that a The proposed effective date for the [FR Doc. 02–9839 Filed 4–22–02; 8:45 am] copy of this filing has been sent to the BILLING CODE 6717–01–P Construction Agreement for Attachment customers Facilities is March 19, 2002 and the Comment Date: May 3, 2002. proposed effective date for the DEPARTMENT OF ENERGY 4. Cinergy Services, Inc Construction Agreement for Network [Docket No. ER02–1517–000] upgrades is April 3, 2002. Copies of this Federal Energy Regulatory filing were served on FPL and PJM. Commission Take notice that on April 12, 2002, Cinergy Services, Inc. (Cinergy) and Comment Date: May 3, 2002. [Docket No. EC02–62–000, et al.] Commonwealth Edison Company are 8. Central Maine Power Company requesting a cancellation of Service Canadian Niagara Power Company, Agreements No.6 under Cinergy [Docket No. ER02–1521–000] Limited, et al.; Electric Rate and Operating Companies, FERC Electric Corporate Regulation Filings Please take notice that on April 12, Cost-Based Power Sales Tariff, and 2002 , Central Maine Power Company April 16, 2002. Market-Based Power Sales Tariff—FERC (CMP) tendered for filing a service Take notice that the following filings Electric Tariff Original Volume No.6 agreement for Non-firm Local Point-to- have been made with the Commission. and Volume No. 7. Point Transmission Service entered into Cinergy requests an effective date of Any comments should be submitted in with Gardner Brook Hydro under its April 15, 2002. accordance with Standard Paragraph E new ownership. Service will be Comment Date: May 3, 2002. at the end of this notice. provided pursuant to CMP’s Open 1. Canadian Niagara Power Company, 5. Cinergy Services, Inc. Access Transmission Tariff, designated Limited [Docket No. ER02–1518–000] rate schedule CMP–FERC Electric Tariff, Original Volume No. 3, Fifth Revision, Take notice that on April 12, 2002, [Docket No. EC02–62–000] Service Agreement No. 157. Take notice that on April 12, 2002, Cinergy Services, Inc. (Cinergy) and Canadian Niagara Power Company Commonwealth Edison Company on CMP also requests termination of Limited and Opinac Energy April 11, 2002 are requesting a FERC Electric Tariff, Original Volume Corporation, tendered for filing, cancellation of Service Agreement No No. 3, Fifth Revision, Service pursuant to section 203 of the Federal 31, under Cinergy Operating Agreement No. 156, submitted for filing Power Act, 16 U.S.C. section 824b Companies, FERC Electric Resale of on March 11, 2002 under Docket No. (1994), and Part 33 of the Commission’s Transmission Rights and Ancillary ER02–1301–000, to reflect the sale of the regulations, 18 CFR part 33 (2001), an Service Rights, FERC Electric Tariff hydro facility on March 20, 2002. application for authorization to dispose Original Volume No. 8. Comment Date: May 3, 2002. of jurisdictional facilities pursuant to Cinergy requests an effective date of the sale of all of the ownership interests April 15, 2002. Standard Paragraph Comment Date: May 3, 2002. of Opinac Energy Corporation in E. Any person desiring to be heard or Canadian Niagara Power Company, 6. Plains End, LLC to protest such filing should file a Limited, to Fortis Inc. motion to intervene or protest with the Comment Date: May 3, 2002. [Docket No. ER02–1519–000] Take notice that on April 12, 2002, Federal Energy Regulatory Commission, 2. Central Maine Power Company Plains End, LLC (Plains End) tendered 888 First Street, NE., Washington, DC [Docket No. ER02–1221–000] for filing a Power Purchase Agreement 20426, in accordance with Rules 211 and 214 of the Commission’s Rules of Take notice that on April 12, 2002, for power sales (Agreement) with Public Central Maine Power Company (CMP) Service Company of Colorado (PSCO) Practice and Procedure (18 CFR 385.211 tendered for filing the an Executed pursuant to which Plains End will sell and 385.214). All such motions or Amendment to the Interconnection electric wholesale services to PSCO at protests should be filed on or before the Agreement by and between CMP and market-based rates according to its comment date. Protests will be Gardner Brook Hydro, designated as FERC Electric Tariff, Original Volume considered by the Commission in FERC Electric Tariff, Fifth Revised, No. 1. determining the appropriate action to be Volume No. 3, Service Agreement No. Comment Date: May 3, 2002. taken, but will not serve to make protestants parties to the proceeding. 144, First Revision. 7. PECO Energy Company Comment Date: May 3, 2002. Any person wishing to become a party [Docket No. ER02–1520–000] must file a motion to intervene. Copies 3. Illinois Power Company Take notice that on April 12, 2002, of this filing are on file with the [Docket No. ER02–1516–000] PECO Energy Company (PECO) Commission and are available for public Take notice that on April 12, 2002, submitted for filing the following inspection. This filing may also be Illinois Power Company (Illinois Construction Agreements between viewed on the web at http:// Power), with the Federal Energy PECO and FPL Energy Marcus Hook, www.ferc.gov using the ‘‘RIMS’’ link, Regulatory Commission (Commission) L.P. (FPL). Construction Agreement for select ‘‘Docket#’’ and follow the an Emergency Energy Service Attachment Facilities and Construction instructions (call 202–208–2222 for Agreement entered into with City of Agreement for Network upgrades, both assistance). Comments, protests and Columbia, Missouri, Columbia Water related to the Marcus Hook Electric interventions may be filed electronically and Light pursuant to Illinois Power’s Generating Station. The Construction via the Internet in lieu of paper. See, 18 Emergency Energy Tariff. Agreements were respectively CFR 385.2001(a)(1)(iii) and the VerDate 11 instructions on the Commission’s web DEPARTMENT OF ENERGY A copy of this filing was sent to WPS site under the ‘‘e-Filing’’ link. Energy Services, Inc. Federal Energy Regulatory Comment Date: May 6, 2002. Linwood A. Watson, Jr., Commission Deputy Secretary. 4. Midwest Independent Transmission [Docket No. ER02–1526–000, et al.] [FR Doc. 02–9893 Filed 4–22–02; 8:45 am] System Operator, Inc. BILLING CODE 6717–01–P Midwest Independent Transmission [Docket No. ER02–1529–000] System Operator, Inc., et al.; Electric Take notice that on April 15, 2002, Rate and Corporate Regulation Filings Midwest Independent Transmission DEPARTMENT OF ENERGY System Operator, Inc. (Midwest ISO) April 17, 2002. pursuant to Section 205 of the Federal Federal Energy Regulatory Take notice that the following filings Power Act and Section 35.13 of the Commission have been made with the Commission. Federal Energy Regulatory Any comments should be submitted in Commission’s (Commission) accordance with Standard Paragraph E [Docket No. ER02–177–003] regulations, 18 CFR 35.13, submitted for at the end of this notice. filing Service Agreements for the Cinergy Services, Inc.; Notice of Filing 1. Midwest Independent Transmission transmission service requested by System Operator, Inc. Nordic Marketing LLC. April 17, 2002. A copy of this filing was sent to [Docket No. ER02–1526–000] Take notice that on April 2, 2002, Nordic Marketing LLC. Take notice that on April 15, 2002, Cinergy Power Investments, Inc. (CPI) Comment Date: May 6, 2002. Midwest Independent Transmission tendered for filing with the Federal System Operator, Inc. (Midwest ISO) 5. Midwest Independent Transmission Energy Regulatory Commission pursuant to Section 205 of the Federal System Operator, Inc. (Commission) a Revised Code of Power Act and Section 35.13 of the [Docket No. ER02–1530–000] Conduct pursuant to the order issued in Federal Energy Regulatory Take notice that on April 15, 2002, the above-captioned Dockets on March Commission’s (Commission) Midwest Independent Transmission 18, 2002. Copies have been served on all regulations, 18 CFR 35.13, submitted for System Operator, Inc. (Midwest ISO) parties designated on the official service filing Service Agreements for the pursuant to Section 205 of the Federal list complies by the Secretary in these transmission service requested by Alcoa Power Act and Section 35.13 of the proceedings. Power Generating Inc., d/b/a/ APG Federal Energy Regulatory Any person desiring to intervene or to Trading. protest this filing should file with the A copy of this filing was sent to Alcoa Commission’s (Commission) regulations, 18 CFR 35.13, submitted for Federal Energy Regulatory Commission, Power Generating Inc., d/b/a/ APG filing Service Agreements for the 888 First Street, NE., Washington, DC Trading. transmission service requested by H.Q. 20426, in accordance with rules 211 and Comment Date: May 6, 2002. Energy Services (U.S.) Inc. 214 of the Commission’s rules of 2. Midwest Independent Transmission A copy of this filing was sent to H.Q. practice and procedure (18 CFR 385.211 System Operator, Inc. Energy Services (U.S.) Inc. and 385.214). Protests will be Comment Date: May 6, 2002. considered by the Commission in [Docket No. ER02–1527–000] determining the appropriate action to be Take notice that on April 15, 2002, 6. Midwest Independent Transmission taken, but will not serve to make Midwest Independent Transmission System Operator, Inc. System Operator, Inc. (Midwest ISO) protestants parties to the proceeding. [Docket No. ER02–1531–000] Any person wishing to become a party pursuant to Section 205 of the Federal Take notice that on April 15, 2002, must file a motion to intervene. All such Power Act and Section 35.13 of the Midwest Independent Transmission motions or protests should be filed on Federal Energy Regulatory System Operator, Inc. (Midwest ISO) or before the comment date, and, to the Commission’s (Commission) regulations, 18 CFR 35.13, submitted for pursuant to Section 205 of the Federal extent applicable, must be served on the Power Act and Section 35.13 of the applicant and on any other person filing Service Agreements for the transmission service requested by Federal Energy Regulatory designated on the official service list. Commission’s (Commission) This filing is available for review at the Calpine Energy Services, L.P. A copy of this filing was sent to regulations, 18 CFR 35.13, submitted for Commission or may be viewed on the filing Service Agreements for the Commission’s web site at http:// Calpine Services, L.P. Comment Date: May 6, 2002. transmission service requested by City www.ferc.gov using the ‘‘RIMS’’ link, of Cleveland, Department of Public select ‘‘Docket #’’ and follow the 3. Midwest Independent Transmission Utilities, Division of Cleveland Public instructions (call 202–208–2222 for System Operator, Inc. Power. assistance). Protests and interventions [Docket No. ER02–1528–000] A copy of this filing was sent to City may be filed electronically via the Take notice that on April 15, 2002, of Cleveland, Department of Public Internet in lieu of paper; see 18 CFR Midwest Independent Transmission Utilities, Division of Cleveland Public 385.2001(a)(1)(iii) and the instructions System Operator, Inc. (Midwest ISO) Power. on the Commission’s web site under the pursuant to Section 205 of the Federal Comment Date: May 6, 2002. ‘‘e-Filing’’ link. Power Act and Section 35.13 of the 7. Midwest Independent Transmission Comment Date: April 26, 2002. Federal Energy Regulatory System Operator, Inc. Commission’s (Commission) Linwood A. Watson, Jr., regulations, 18 CFR 35.13, submitted for [Docket No. ER02–1532–000] Deputy Secretary. filing Service Agreement for the Take notice that on April 15, 2002, [FR Doc. 02–9897 Filed 4–22–02; 8:45 am] transmission service requested by WPS Midwest Independent Transmission BILLING CODE 6717–01–P Energy Services, Inc. System Operator, Inc. (Midwest ISO) VerDate 11 pursuant to Section 205 of the Federal A copy of this filing was sent to pursuant to section 205 of the Federal Power Act and Section 35.13 of the Maclaren Energy Inc. Power Act and section 35.13 of the Federal Energy Regulatory Comment Date: May 6, 2002. Federal Energy Regulatory Commission’s (Commission) Commission’s (Commission) 11. Midwest Independent Transmission regulations, 18 CFR 35.13, submitted for System Operator, Inc. regulations, 18 CFR 35.13, submitted for filing Service Agreements for the filing Service Agreements for the transmission service requested by Coral [Docket No. ER02–1536–000] transmission service requested by Ohio Power, L.L.C. Take notice that on April 15, 2002, Valley Electric Corporation. A copy of this filing was sent to Coral Midwest Independent Transmission A copy of this filing was sent to Ohio Power, L.L.C. System Operator, Inc. (Midwest ISO) Valley Electric Corporation. Comment Date: May 6, 2002. pursuant to Section 205 of the Federal Comment Date: May 6, 2002. 8. Midwest Independent Transmission Power Act and Section 35.13 of the System Operator, Inc. Federal Energy Regulatory Standard Paragraph Commission’s (Commission) [Docket No. ER02–1533–000] regulations, 18 CFR 35.13, submitted for E. Any person desiring to be heard or Take notice that on April 15, 2002, filing Service Agreements for the to protest such filing should file a Midwest Independent Transmission transmission service requested by Kiel motion to intervene or protest with the System Operator, Inc. (Midwest ISO) Electric Utility. Federal Energy Regulatory Commission, pursuant to Section 205 of the Federal A copy of this filing was sent to Kiel 888 First Street, NE., Washington, DC Power Act and Section 35.13 of the Electric Utility. 20426, in accordance with Rules 211 Federal Energy Regulatory Comment Date: May 6, 2002. and 214 of the Commission’s Rules of Commission’s (Commission) 12. Avista Corporation Practice and Procedure (18 CFR 385.211 regulations, 18 CFR 35.13, submitted for and 385.214). All such motions or filing Service Agreements for the [Docket No. ER–02–1539–000] protests should be filed on or before the transmission service requested by Take notice that on April 11, 2002, comment date. Protests will be Ameren Energy, Inc., as agent for and on pursuant to section 205 of the Federal considered by the Commission in behalf of Union Electric Co., d/b/a Power Act, Avista Corporation tendered determining the appropriate action to be Ameren UE & AmerenEnergy Generating for filing with the Federal Energy taken, but will not serve to make Co. Regulatory Commission a proposed protestants parties to the proceeding. A copy of this filing was sent to revision to FERC Rate Schedule No. 290, Any person wishing to become a party Ameren Energy, Inc., as agent for and on Avista Corporation’s currently effective must file a motion to intervene. Copies behalf of Union Electric Co., d/b/a rate schedule for the 1964 Pacific of this filing are on file with the Ameren UE & AmerenEnergy Generating Northwest Coordination Agreement Commission and are available for public Co. (PNCA). Avista Corporation has filed a inspection. This filing may also be Comment Date: May 6, 2002. revised tariff sheet to reflect an viewed on the web at http:// 9. Midwest Independent Transmission extension of the term of the PNCA from www.ferc.gov using the ‘‘RIMS’’ link, System Operator, Inc. June 30, 2003 to July 31, 2003. Avista select ‘‘Docket#’’ and follow the Corporation requests that the instructions (call 202–208–2222 for [Docket No. ER02–1534–000] Commission accept the change effective assistance). Comments, protests and Take notice that on April 15, 2002, June 10, 2002. interventions may be filed electronically Midwest Independent Transmission A copy of this filing has been served via the Internet in lieu of paper. See, 18 System Operator, Inc. (Midwest ISO) upon all parties to the PNCA. CFR 385.2001(a)(1)(iii) and the pursuant to Section 205 of the Federal Comment Date: May 2, 2002. instructions on the Commission’s web Power Act and Section 35.13 of the 13. Midwest Independent Transmission site under the ‘‘e-Filing’’ link. Federal Energy Regulatory System Operator, Inc. Commission’s (Commission) Linwood A. Watson, Jr., regulations, 18 CFR 35.13, submitted for [Docket No. ER02–1540–000] Deputy Secretary. filing Service Agreements for the Take notice that on April 15, 2002, [FR Doc. 02–9894 Filed 4–22–02; 8:45 am] transmission service requested by Texas Midwest Independent Transmission BILLING CODE 6717–01–P Electric Marketing, LLC. System Operator, Inc. (Midwest ISO) A copy of this filing was sent to Texas pursuant to Section 205 of the Federal Electric Marketing, LLC. Power Act and section 35.13 of the DEPARTMENT OF ENERGY Comment Date: May 6, 2002. Federal Energy Regulatory Commission’s (Commission) Federal Energy Regulatory 10. Midwest Independent Transmission regulations, 18 CFR 35.13, submitted for Commission System Operator, Inc. filing Service Agreements for the [Docket No. ER02–1535–000] transmission service requested by PSEG [Docket No. EG02–114–000, et al.] Take notice that on April 15, 2002, Energy Resources & Trade LLC. Midwest Independent Transmission A copy of this filing was sent to PSEG PH Generating Statutory Trust B, et al.; System Operator, Inc. (Midwest ISO) Energy Resources & Trade LLC. Electric Rate and Corporate Regulation pursuant to Section 205 of the Federal Comment Date: May 6, 2002. Filings Power Act and Section 35.13 of the 14. Midwest Independent Transmission April 12, 2002. Federal Energy Regulatory System Operator, Inc. Commission’s (Commission) Take notice that the following filings regulations, 18 CFR 35.13, submitted for [Docket No. ER02–1541–000] have been made with the Commission. filing Service Agreements for the Take notice that on April 15, 2002, Any comments should be submitted in transmission service requested by Midwest Independent Transmission accordance with Standard Paragraph E Maclaren Energy Inc. System Operator, Inc. (Midwest ISO) at the end of this notice. VerDate 11 1. PH Generating Statutory Trust B filing includes a code of conduct and 8. Progress Energy on behalf of Florida [Docket No. EG02–114–000] amends its tariff to specify the ancillary Power Corporation services it will sell into markets Take notice that on April 8, 2002, PH [Docket No. ER02–1500–000] administered by ISO New England and Generating Statutory Trust B e notice that on April 8, 2002, Florida the New York ISO. (Applicant) filed with the Federal Power Corporation (FPC) tendered for Energy Regulatory Commission A copy of the filing was served upon filing Service Agreements for Non-Firm (Commission) an application for the New Hampshire Public Utilities and Short-Term Firm Point-to-Point determination of exempt wholesale Commission. Transmission Service with Progress generator status pursuant to Part 365 of Comment Date: April 29, 2002. Ventures, Inc. Service to this Eligible the Commission’s regulations. 5. Midwest Independent Transmission Customer will be in accordance with the Applicant is a Connecticut business System Operator, Inc. terms and conditions of the Open trust formed for the benefit of First Access Transmission Tariff filed on Chicago Leasing Corporation and other [Docket No. ER02–1307–000] behalf of FPC. passive investors, to purchase and hold Take notice that on April 9, 2002, FPC is requesting an effective date of legal title to a 40-percent leasehold Midwest Independent Transmission March 10, 2002 for these Service interest in the Aries Power Plant, an System Operator, Inc. (Midwest ISO) Agreements. A copy of the filing was approximately 600-MW natural gas-fired pursuant to Section 205 of the Federal served upon the North Carolina Utilities combined-cycle generating facility being Power Act and Section 35.13 of the Commission and the Florida Public constructed near Pleasant Hill in Cass Federal Energy Regulatory Service Commission. County, Missouri. Commission’s (Commission) Comment Date: April 29, 2002. Comment Date: May 3, 2002. regulations, 18 CFR 35.13, submitted for 9. Cinergy Services, Inc. 2. PH Generating Statutory Trust A filing a request for a change in the effective date for Service Agreements for [Docket No. ER02–1501–000] [Docket No. EG02–115–000] the transmission service requested by Take notice that on April 9, 2002, Take notice that on April 8, 2002, PH East Kentucky Power Cooperative. Cinergy Services, Inc. (Cinergy) and Generating Statutory Trust A A copy of this filing was sent to East Alliant Energy Industrial Services, Inc., (Applicant) filed with the Federal Kentucky Power Cooperative. are requesting a cancellation of Service Energy Regulatory Commission Agreement No.85, under Cinergy Comment Date: April 30, 2002. (Commission) an application for Operating Companies, FERC Electric determination of exempt wholesale 6. Midwest Independent Transmission Cost-Based Power Sales Tariff, FERC generator status pursuant to Part 365 of System Operator, Inc. Electric Tariff Original Volume No. 6. the Commission’s regulations. Cinergy requests an effective date of [Docket No. ER02–1310–000] Applicant is a Connecticut business April 10, 2002. trust formed for the benefit of Bankers Take notice that on April 9, 2002, Comment Date: April 30, 2002. Midwest Independent Transmission Commercial Corporation and other 10. Cinergy Services, Inc. passive investors, to purchase and hold System Operator, Inc. (Midwest ISO) legal title to a 60-percent leasehold pursuant to Section 205 of the Federal [Docket No. ER02–1502–000] interest in the Aries Power Plant, an Power Act and Section 35.13 of the Take notice that on April 9, 2002, approximately 600-MW natural gas-fired Federal Energy Regulatory Cinergy Services, Inc. (Cinergy) and combined-cycle generating facility being Commission’s (Commission) Alliant Energy Industrial Services, Inc., constructed near Pleasant Hill in Cass regulations, 18 CFR 35.13, submitted for are requesting a cancellation of Service County, Missouri. filing a request for a change in the Agreement No.85, under Cinergy Comment Date: May 3, 2002. effective date for Service Agreements for Operating Companies, FERC Electric the transmission service requested by Cost-Based Power Sales Tariff, FERC 3. Mirant Lovett, L.L.C., Mirant Omaha Public Power District. Electric Tariff Original Volume No. 7. Bowline, L.L.C., Mirant NY-Gen, L.L.C. A copy of this filing was sent to Cinergy requests an effective date of [Docket Nos. ER99–2043–002 ER99–2044– Omaha Public Power District. April 10, 2002. 002 and, ER99–2045–002] Comment Date: April 30, 2002. Comment Date: April 30, 2002 Take notice that on April 8, 2002, 11. Cinergy Services, Inc. Mirant Lovett, L.L.C., Mirant Bowline, 7. Midwest Independent Transmission L.L.C., and Mirant NY-Gen, L.L.C. System Operator, Inc. Docket No. ER02–1503–000 (collectively the Mirant New York [Docket No. ER02–1311–000] Take notice that on April 9, 2002, Companies) tendered for filing an Cinergy Services, Inc. (Cinergy) and updated market-power analysis in Take notice that on April 9, 2002, Alliant Energy Industrial Services, Inc., compliance with the requirement of the Midwest Independent Transmission are requesting a cancellation of Service order granting them authority to make System Operator, Inc. (Midwest ISO) Agreement No.161, under Cinergy power sales at market-based rates. pursuant to Section 205 of the Federal Operating Companies, FERC Electric Comment Date: April 29, 2002. Power Act and Section 35.13 of the Cost-Based Power Sales Tariff, FERC Federal Energy Regulatory 4. Unitil Power Corp. Electric Tariff Original Volume No. 7. Commission’s (Commission) Cinergy requests an effective date of [Docket No. ER02–999–001] regulations, 18 CFR 35.13, submitted for April 10, 2002. Take notice that on April 8, 2002, filing a request for a change in the Comment Date: April 30, 2002. Unitil Power Corp. (Unitil Power) made effective date for Service Agreements for 12. Cinergy Services, Inc. a compliance filing pursuant to the the transmission service requested by Federal Energy Regulatory UtiliCorp United, Inc. [Docket No. ER02–1504–000] Commission’s (Commission) March 22, A copy of this filing was sent to Take notice that on April 9, 2002, 2002 Order accepting its proposed UtiliCorp United, Inc. Cinergy Services, Inc. (Cinergy) and market-based rate tariff. Unitil Power’s Comment Date: April 30, 2002. Alliant Energy Industrial Services, Inc., VerDate 11 are requesting a cancellation of Service proposed revisions to its Open Access DEPARTMENT OF ENERGY Agreement No.161, under Cinergy Transmission Tariff and Market Operating Companies, FERC Electric Administration and Control Area Federal Energy Regulatory Cost-Based Power Sales Tariff, FERC Services Tariff to implement an Commission Electric Tariff Original Volume No. 4. enhancement to its pre-scheduling [Docket No. AD02–14–000] Cinergy requests an effective date of rules. The NYISO has requested an April 10, 2002. effective date of April 11, 2001. Conference on Emergency Comment Date: April 30, 2002. Reconstruction of Interstate Natural The NYISO has mailed a copy of this Gas Infrastructure; Notice of Technical 13. Pinnacle West Capital Corporation compliance filing to all persons who are Conference and Agenda [Docket No. ER02–1505–000] signatories to the NYISO’s Open Access Take notice that on April 9, 2002, Transmission Tariff or Market April 16, 2002. Pinnacle West Capital Corporation Administration and Control Area As announced in the Notice of (PWCC) tendered for filing five Service Services Tariff, to the New York State Conference issued on April 2, 2002, staff Agreements under the Western Systems Public Service Commission, and to the from the Federal Energy Regulatory Power Pool Agreement for service to electric utility regulatory agencies in Commission (Commission) and from the APS Energy Services and a Service New Jersey and Pennsylvania. The Office of Pipeline Safety of the Agreement with Utah Municipal Power NYISO has also mailed a copy to each Department of Transportation will Agency under PWCC’s FERC Rate person designated on the official service convene a technical conference on April Schedule No. 1. PWCC has requested list maintained by the Commission for 22, 2002 at 9 a.m. in the Commission waiver of the Commission’s Notice Docket No. ER02–638–000. Meeting Room (2C) to begin discussions with interested parties on whether and Requirements for effective dates as Comment Date: April 29, 2002. stated in the service agreements. how to clarify, expedite and streamline PWCC has requested confidential Standard Paragraph permitting and approvals for interstate treatment of certain privileged pipeline reconstruction in the event of information pursuant to 18 CFR 388.112 E. Any person desiring to be heard or disaster, whether natural or otherwise. in the long-term contracts. to protest such filing should file a The conference Agenda is appended to A copy of this filing has been served motion to intervene or protest with the this Notice. on APS Energy Services and Utah Federal Energy Regulatory Commission, Transcripts of the conference will be Municipal Power Agency. 888 First Street, N.E., Washington, D.C. available from Ace Reporting Company Comment Date: April 30, 2002. 20426, in accordance with Rules 211 (202–347–3700), for a fee. The transcript and 214 of the Commission’s Rules of will be available on the Commission’s 14. PJM Interconnection, L.L.C. Practice and Procedure (18 CFR 385.211 RIMS system two weeks after the [Docket No. ER02–1506–000] and 385.214). All such motions or conference. Take notice that on April 9, 2002, PJM protests should be filed on or before the For additional information, please Interconnection, L.L.C. (PJM) submitted comment date. Protests will be contact Carol Connors in the Office of for filing a revised Schedule 2 to the considered by the Commission in External Affairs at PJM Open Access Tariff to include the determining the appropriate action to be [email protected]. Handsome Lake Energy LLC (Handsome taken, but will not serve to make Magalie R. Salas, Lake) revenue requirement for providing protestants parties to the proceeding. Secretary. Reactive Support and Voltage Control Any person wishing to become a party from Generation Sources Service in the must file a motion to intervene. Copies Conference on Emergency PJM region which was accepted for of this filing are on file with the Reconstruction of Interstate Natural Gas Infrastructure April 22, 2002. filing by the Commission in Docket No. Commission and are available for public ER02–771 on March 8, 2002. inspection. This filing may also be 9 a.m. Opening Remarks—FERC and PJM requests a waiver of the viewed on the web at http:// DOT 9:10 AM Special Presentation Commission’s notice regulations to www.ferc.gov using the ‘‘RIMS’’ link, Howard Schmidt, Chairman, Critical permit an effective date of April 1, 2002, select ‘‘Docket#’’ and follow the Infrastructure Protection Board consistent with the effective date of instructions (call 202–208–2222 for 9:20 a.m. Formal Presentations Handsome Lake’s membership in PJM assistance). Comments, protests and Presentations on existing authorities and the effective date for the revenue interventions may be filed electronically concerning emergency requirement as set forth in the via the Internet in lieu of paper. See, 18 reconstruction, and recent Commission’s letter order in Docket No. experiences. CFR 385.2001(a)(1)(iii) and the ER02–771. Berne L. Mosley, Senior Technical instructions on the Commission’s web PJM states that it served a copy of its Expert, Office of Energy Projects filing on Handsome Lake, all PJM site under the ‘‘e-Filing’’ link. Jim O’Steen, Deputy Associate members, and each of the state electric Linwood A. Watson, Jr. Administrator, Department of regulatory commissions within the PJM Deputy Secretary Transportation, Office of Pipeline region. Safety [FR Doc. 02–9892 Filed 4–22–02; 8:45 am] Comment Date: April 30, 2002. 10 a.m. Panel I—Regulatory BILLING CODE 6717–01–P 15.New York Independent System Perspectives Operator, Inc. Panel Members Dinah Bear, General Counsel, Council [Docket No. ER02–1507–000] on Environmental Quality Take notice that on April 8, 2002 the John Gawronski, Chief, Gas Safety, New York System Operator, Inc. Office of Gas & Water New York (NYISO) filed with the Federal Energy State Public Service Commission Regulatory Commission (Commission) Bob Rosenthal, Director, Bureau of VerDate 11 Fixed Utility Services, pipelines, and local distribution Haskell (for Natural Gas Supply Pennsylvania Public Utility companies (LDCs) in today’s non- Association) Commission vertically integrated industry in the Jack Cashin, Senior Manager Policy, Kevin J. Bliss, Washington event of a disaster, whether natural or Electric Power Supply Association Representative, Interstate Oil and otherwise. Richard McMahon, EEI Group Gas Compact Commission The conference Agenda is appended Director, Edison Electric Institute Representative from the Federal to this Notice. Transcripts of the LDC Representative from the Natural Bureau of Investigation—Invited conference will be available from Ace Gas Council—Invited Representative from the Office of Reporting Company (202–347–3700), for 12:55 p.m. Facilitated Discussion Homeland Security—Invited a fee. The transcript will be available on 30 Minute facilitated discussion 11 a.m. Facilitated Discussion the Commission’s RIMS system two among panel members. 30 Minute facilitated discussion weeks after the conference. 1:25 p.m. Question and Answer among panel members. For additional information, please Session 11:30 a.m. Question and Answer contact Carol Connors in the Office of 15 minutes for questions from the Session External Affairs at audience. 15 minutes for questions from the [email protected]. 1:40 p.m. Closing Remarks audience. Magalie R. Salas, [FR Doc. 02–9896 Filed 4–22–02; 8:45 am] 11:45 a.m. Break BILLING CODE 6717–01–P 12 p.m. Introduction of Next Panel Secretary. 12:05 p.m. Panel II—Industry and Conference on Emergency Reallocation Other Perspectives of Natural Gas April 23, 2002. DEPARTMENT OF ENERGY Panel Members 9 a.m. Opening Remarks—FERC and John Somerhalder, President, El Paso Federal Energy Regulatory DOE Pipeline Group Commission 9:10 a.m. Formal Presentations Janice Alperin, Associate General Presentations on the existing Counsel, El Paso Pipeline Group Notice of Membership of Performance authorities concerning emergency Dena Wiggins, General Counsel, Review Board reallocation. Process Gas Consumers Robert F. Christin, Energy Projects, April 17, 2002. Mary Jane McCartney, Senior Vice Lead Counsel, Office of the General The Federal Energy Regulatory President for Gas Operations, Counsel Commission (Commission) hereby Consolidated Edison Company Donald A. Juckett, Director, Natural provides notice of the membership of its Michelle Joy, General Counsel, Gas and Petroleum Import/Export Performance Review Board (PRB). This American Oil Pipeline Association Activities, Department of Energy, action is undertaken in accordance with 12:55 p.m. Facilitated Discussion Office of Fossil Energy Title 5, U.S.C., Section 4314(c)(4). The 30 Minute facilitated discussion 9:50 a.m. Panel I—Regulatory Commission’s PRB adds the following among panel members. Perspectives member: J. Mark Robinson 1:25 p.m. Question and Answer Session Panel Members Magalie R. Salas, 15 minutes for questions from the Commissioner Charles R. Matthews, Secretary. audience. Texas Railroad Commission [FR Doc. 02–9901 Filed 4–22–02; 8:45 am] 1:40 p.m. Closing Remarks Phil Teumim, Director, Office of Gas BILLING CODE 6717–01–P [FR Doc. 02–9895 Filed 4–22–02; 8:45 am] and Water, New York State Public BILLING CODE 6717–01–P Service Commission Representative from the Office of ENVIRONMENTAL PROTECTION Homeland Security—Invited AGENCY Representative from the National DEPARTMENT OF ENERGY [FRL–7174–8] Governors Association—Invited Federal Energy Regulatory 10:30 a.m. Facilitated Discussion Guidance on the CERCLA Section Commission 30 Minute facilitated discussion 101(10)(H) Federally Permitted Release [Docket No. AD02–15–000] among panel members. Definition for Clean Air Act 11:00 a.m. Question and Answer ‘‘Grandfathered’’ Sources Conference on Emergency Session Reallocation of Natural Gas; Notice of 15 minutes for questions from the AGENCY: Environmental Protection Technical Conference and Agenda audience. Agency (EPA). 11:15 a.m. Break ACTION: Notice. April 16, 2002. 11:30 a.m. Introduction of Next Panel As announced in the Notice of 11:35 a.m. Panel II—Industry and SUMMARY: EPA is publishing as an Conference issued April 2, 2002, staff Other Perspectives appendix to this notice a guidance on from the Federal Energy Regulatory Richard Smead, Vice President, the CERCLA section 101(10)(H) Commission (FERC or Commission) and Regulatory Policy, El Paso Pipeline federally permitted release definition as from the Department of Energy (DOE) Group it applies to grandfathered sources will convene a technical conference on Janice Alperin, Associate General under the Clean Air Act (CAA). April 23, 2002 at 9 a.m. in the Counsel, El Paso Pipeline Group FOR FURTHER INFORMATION CONTACT: Visit Commission Meeting Room (2C) to Dena Wiggins, General Counsel, the OECA Docket Web Site at begin discussions with interested Process Gas Consumers www.epa.gov/oeca/polguid/ parties on whether and how to clarify, Mike Linn, President, Allegheny enfdock.html or contact the RCRA/UST, expedite and streamline processes for Interests Superfund and EPCRA Hotline at (800) reallocating natural gas among shippers, Mark Haskell, Partner, Brunekant & 424–9346 or (703) 412–9810 in VerDate 11 Washington, DC area. For general reflects our consideration of the the federally permitted release exemption as questions about this guidance, please comments submitted on the Interim applied to releases from grandfathered contact Lynn Beasley at (703) 603–9086 Guidance regarding that issue, general sources under the CAA. and for enforcement related questions, concerns raised by previous Federal CERCLA section 101(10)(H) defines federally permitted releases under the CAA please contact Ginny Phillips at (202) Register notices on the definition of as: Any emission into the air subject to a 564–6139 or mail your questions to: federally permitted release, and our own permit or control regulation under section U.S. EPA, 1200 Pennsylvania Ave., experience in implementing the 111, section 112, title I part C, title I part D, Washington DC, 20460, attention Lynn reporting requirements under CERCLA or State implementation plans submitted in Beasley, mail code 5204G. section 103 and EPCRA section 304. accordance with section 110 of the Clean Air Act (and not disapproved by the SUPPLEMENTARY INFORMATION: This guidance also incorporates principles articulated in EPA Administrator of the Environmental Purpose of this Notice administrative adjudications. Protection Agency), including any schedule This guidance does not impose new or waiver granted, promulgated, or approved This notice announces guidance under these sections. discussing the application of the reporting requirements or change the 42 U.S.C. 9601(10)(H)(internal citations federally permitted release exemption to types of releases which are required to omitted). The Senate committee report air emissions from sources that are be reported under CERCLA section 103 explained the CERCLA definition of federally ‘‘grandfathered’’ under the Clean Air and EPCRA section 304 or the permitted release for air emissions: Act (‘‘CAA’’). The federally permitted implementing regulations at 40 CFR In the Clean Air Act, unlike some other release exemption pertains to the parts 302 and 355. The legal authority Federal regulatory statutes, the control of hazardous air pollutant emissions can be reporting requirements under two for the reporting requirements arises from those statutory and regulatory achieved through a variety of means: express federal emergency response and public emissions limitations (such as control on the right to know laws: section 103 of the provisions, as well as the statutory pounds of pollutant that may be discharged Comprehensive Environmental provisions on federally permitted from a source during a given time); Response, Compensation, and Liability releases, not from this guidance. technology requirements (such as floating Act (‘‘CERCLA’’), as amended, 42 U.S.C. Further, whether a particular air release roof tanks on hydrocarbons in a certain vapor 9603, and section 304 of the Emergency of a hazardous substance or extremely pressure range); operational requirements Planning and Community Right-to- hazardous substance is exempt from (such as start up or shut down procedures to Know Act (‘‘EPCRA’’), 42 U.S.C. 11004. CERCLA section 103 and EPCRA section control emissions during such operations); work practices (such as the application of Federally permitted releases are defined 304 reporting requirements requires a case-by-case determination based on the water to suppress certain particulates); or in CERCLA section 101(10), which other control practices. Whether control of specifically identifies certain releases specific applicable permit language or hazardous substance emissions is achieved that are permitted or controlled under control requirements. This guidance has directly or indirectly, the means must be several environmental statutes. These no effect on CAA permit requirements. specifically designed to limit or eliminate releases are exempt from the The Office of Solid Waste and emissions of a designated hazardous notification requirements of CERCLA Emergency Response and the Office of pollutant or a criteria pollutant. section 103 and EPCRA section 304. Enforcement and Compliance Assurance Senate Rep. 848, 96th Cong., 2d Sess. 49 CERCLA section 101(10)(H) identifies jointly issue this guidance. (1980). Generally, releases from grandfathered releases that are exempt from reporting Dated: April 4, 2002. sources do not meet the definition of because they are subject to permits and Marianne Lamont Horinko, federally permitted releases, because regulations under the CAA. Assistant Administrator for Solid Waste and Congress exempted those sources, rather than On December 21, 1999, we published Emergency Response. imposing permits or control regulations on in the Federal Register the ‘‘Interim Dated: April 11, 2002. them. Congress, in enacting several of the Guidance on the CERCLA section Sylvia K. Lowrance, CAA programs, did not require existing pollution sources (unless modified) to install 101(10)(H) Federally Permitted Release Acting Assistant Administrator for Definition for Certain Air Emissions’’ pollution controls. For example, certain Enforcement and Compliance Assurance. requirements of the New Source Performance (‘‘Interim Guidance’’). The Interim Appendix A—Guidance on the CERCLA Standards Program apply specifically to new Guidance discussed several issues sources. See 42 U.S.C. 7411(b). Exempted regarding the application of the Section 101(10)(H) Federally Permitted Release Definition for Clean Air Act existing sources are known as federally permitted release exemption to ‘‘grandfathered’’ sources under Title I of the air releases, including whether the ‘‘Grandfathered’’ Sources CAA. Congress structured the CAA to force exemption applies to releases from Section 103 of the Comprehensive pollution control technology in a cost- grandfathered sources. We requested Environmental Response, Compensation, and effective manner. Thus, the decision not to comment on the Interim Guidance and Liability Act (‘‘CERCLA’’) and section 304 of require those sources was primarily based on held a public meeting, giving the public the Emergency Planning and Community economic considerations, i.e., when pollution control technology could be an opportunity to raise their concerns Right-to-Know Act (‘‘EPCRA’’) require that facilities notify federal, state and local efficiently and cost-effectively engineered about these issues. On April 17, 2002, authorities of releases of hazardous into plants. See, for example, H.R. Rep. No. the Agency published the ‘‘Guidance on substances, if the amount of the release 95–294, at 185. For this reason, a facility’s the CERCLA section 101(10)(H) reaches a designated reportable quantity. status as a grandfathered source does not Federally Permitted Release Definition Federally permitted releases, as defined in necessarily mean that emissions from this for Certain Air Emissions,’’ (67 FR CERCLA section 101(10), are exempt from facility do not pose a public health hazard. 18899). This Guidance responded to the the CERCLA and EPCRA release reporting To the extent that the releases from concerns raised by commentors and requirements. Federally permitted releases grandfathered sources are not subject to superceded the Interim Guidance. The are certain releases that are permitted or permits or control regulations, they generally controlled under several environmental will not meet the CERCLA section 101(10)(H) Guidance, however, did not address the statutes. CERCLA section 101(10)(H) definition of federally permitted release question of grandfathered sources and identifies releases that are exempt from based on the status of the facility as federally permitted releases. The reporting because they are subject to permits grandfathered. However, a source that is document we publish today discusses and regulations under the Clean Air Act exempt from a CAA requirement because of grandfathered sources. This document (‘‘CAA’’). This guidance document addresses its grandfathered status may be subject to VerDate 11 other applicable CAA permits or regulations. the local Recorder’s Office, and displays a currently valid control If there are federally enforceable permits or thereafter, each deed, title, or other number. No person shall be subject to control regulations issued under the CAA instrument conveying an interest in the any penalty for failing to comply with provisions cited in CERCLA 101(10)(H) that property shall contain a notice to a collection of information subject to the apply to releases of hazardous substances from a grandfathered source, despite the successors-in-title not to disturb the Paperwork Reduction Act (PRA) that grandfathered source exemption, those implemented Site response. does not display a valid control number. releases may qualify as federally permitted For thirty (30) days following the date Comments are requested concerning releases under CERCLA section 101(10)(H). of publication of this document, the whether the proposed collection of Agency will receive written comments information is necessary for the proper [FR Doc. 02–9914 Filed 4–22–02; 8:45 am] relating to the proposed settlement. The performance of the functions of the BILLING CODE 6560–50–P Agency’s response to any comments Commission, including whether the received will be available for public information shall have practical utility; ENVIRONMENTAL PROTECTION inspection at the Superfund Records the accuracy of the Commission’s AGENCY Center at the U.S. Environmental burden estimate; ways to enhance the Protection Agency, Region VIII, 999 quality, utility, and clarity of the [FRL–7173–5] 18th Street, Denver, Colorado, 80202. information collected; and ways to Availability: The proposed settlement minimize the burden of the collection of Notice of Proposed Prospective is available for public inspection at the information on the respondents, Purchaser Agreement Pursuant to the U.S. Environmental Protection Agency, including the use of automated Comprehensive Environmental Region VIII, 999 18th Street, Denver, collection techniques or other forms of Response, Compensation and Liability Colorado, 80202. A copy of the information technology. Act of 1980, as Amended by the proposed Agreement may be obtained DATES: Persons wishing to comment on Superfund Amendments and from Mia Wood, Enforcement Attorney, this information collection should Reauthorization Act, Leeds Silver U.S. Environmental Protection Agency, submit comments June 24, 2002. If you Reclamation Superfund Site Region VIII, 999 18th Street, Denver, anticipate that you will be submitting AGENCY: Environmental Protection Colorado, 80202. Comments should comments, but find it difficult to do so Agency (EPA). reference the ‘‘Leeds Silver Reclamation within the period of time allowed by Superfund Site Prospective Purchaser ACTION: Notice; request for public this notice, you should advise the Agreement’’ and should be forwarded to comment. contact listed below as soon as possible. Maureen O’Reilly, Enforcement ADDRESSES: Direct all comments to Judy SUMMARY: Notification is hereby given Specialist, at the U.S. Environmental Boley Herman, Federal Communications that a Proposed Prospective Purchaser Protection Agency, Region VIII, 999 Commission, 445 12th Street, SW., Agreement (PPA) associated with the 18th Street, Denver, Colorado, 80202. Room 1–C804, Washington, DC 20554 or Leeds Silver Reclamation Superfund FOR FURTHER INFORMATION CONTACT: Mia via the internet to [email protected]. Site located in Leeds, Utah was Wood, Enforcement Attorney, U.S. FOR FURTHER INFORMATION CONTACT: For executed by the United States Environmental Protection Agency, additional information or copies of the Department of Justice on March 5, 2002. Region VIII, 999 18th Street, Denver, information collections contact Judy This Agreement is subject to final Colorado, 80202. Boley Herman at 202–418–0214 or via approval after the comment period. The It is so Agreed: the internet at [email protected]. Prospective Purchaser Agreement would Jack W. McGraw, SUPPLEMENTARY INFORMATION: resolve certain potential EPA claims Acting Regional Administrator, U.S. OMB Control No.: 3060–0882. under sections 106 and 107 of the Environmental Protection Agency, Region Title: Section 95.833, Construction Comprehensive Environmental VIII. Requirements. Response, Compensation and Liability [FR Doc. 02–9915 Filed 4–22–02; 8:45 am] Form No.: N/A. Act of 1980, as amended by the BILLING CODE 6560–50–M Type of Review: Extension of a Superfund Amendments and currently approved collection. Reauthorization Act of 1986 (CERCLA), Respondents: Individuals or against Great Western Star, L.L.C. and FEDERAL COMMUNICATIONS households, business or other for-profit. Stacey L. Eaton, the prospective COMMISSION Number of Respondents: 1,468. purchasers (the purchasers). Estimated Time Per Response: 1 hour. The settlement would require the Notice of Public Information Total Annual Burden: 1,468 hours. purchasers to pay the U.S. Collection(s) Being Reviewed by the Annual Reporting and Recordkeeping Environmental Protection Agency Federal Communications Commission Cost Burden: $0. $60,000. The purchasers intend to use for Extension Under Delegated Frequency of Response: Ten year the property as part of a plan to create Authority, Comments Requested reporting requirement. a residential subdivision in the Silver Needs and Uses: This rule section is Reef area, which is in close proximity to April 16, 2002. necessary for 218–219 MHz service Leeds. The purchasers will use the Site SUMMARY: The Federal Communications system licensees to file a report after ten property as open space within the Commission, as part of its continuing years of license grant to demonstrate development. effort to reduce paperwork burden that they provide substantial service to The purchasers have agreed to invites the general public and other its service areas. The information is provide EPA with an irrevocable right of Federal agencies to take this used by the Commission staff to assess access to the Site, to conduct all opportunity to comment on the compliance with 218–219 MHz service business in compliance with all following information collection(s), as construction requirements, and to applicable local, State, and federal laws required by the Paperwork Reduction provide adequate spectrum for the and regulations, and to exercise due Act of 1995, Public Law 104–13. An service. This will facilitate spectrum care at the Site. The purchasers will agency may not conduct or sponsor a efficiency and competition by the 218– record a certified copy of the PPA with collection of information unless it 219 MHz licensees in the wireless VerDate 11 marketplace. Without this information, Type of Review: Extension of a information on the respondents, the Commission would not be able to currently approved collection. including the use of automated carry out its statutory responsibilities. Respondents: Business or other for- collection techniques or other forms of OMB Control No.: 3060–0223. profit. information technology. Title: Section 90.129, Supplemental Number of Respondents: 50. DATES: Written comments should be Information to be Routinely Submitted Estimated Time Per Response: 0.7 submitted on or before June 24, 2002. If with Applications, Non-Type Accepted hours. you anticipate that you will be Total Annual Burden: 35 hours. Equipment. Annual Reporting and Recordkeeping submitting comments, but find it Form No.: N/A. Cost Burden: $5,500. difficult to do so within the period of Type of Review: Extension of a Frequency of Response: time allowed by this notice, you should currently approved collection. Recordkeeping requirement and on advise the contact listed below as soon Respondents: Individuals or occasion reporting requirement. as possible. households, businesses or other for- Needs and Uses: This rule requires ADDRESSES: Direct all comments to Les profit, not-for-profit institutions, and that if airports have control towers or Smith, Federal Communications state, local or tribal government. Federal Aviation Administration (FAA) Commission, Room 1–A804, 445 12th Number of Respondents: 100. flight service stations, and more than Street, SW., Washington, DC 20554, or Estimated Time Per Response: .33 one licensee and want to have an via the Internet to [email protected]. hours (or 20 minutes). automated aeronautical advisory station FOR FURTHER INFORMATION CONTACT: For Total Annual Burden: 33 hours. (unicom), they must write an agreement additional information or copies of the Annual Reporting and Recordkeeping and keep a copy of the agreement with information collection(s), contact Les Cost Burden: $0. each licensee’s station authorization. Smith at 202–418–0217 or via the Frequency of Response: On occasion The information will be used by Internet at [email protected]. reporting requirement. compliance personnel for enforcement Needs and Uses: Section 90.129 SUPPLEMENTARY INFORMATION: purposes and by licensees to clarify OMB Control Number: 3060–0540. requires applicants proposing to use responsibility in operating unicom. transmitting equipment that is not type- Title: Tariff Filing Requirements for certified by FCC laboratory personnel to Federal Communications Commission. Nondominant Common Carriers. provide a description of the proposed William F. Caton, Form Number: N/A. Type of Review: Extension of a equipment. This assures that the Acting Secretary. currently approved collection. equipment is capable of performing [FR Doc. 02–9868 Filed 4–22–02; 8:45 am] Respondents: Business or other for- within certain tolerances that limit the BILLING CODE 6712–01–P profit entities. interference potential of the device. The Number of Respondents: 2,000. information collected is used by FCC Estimated Time Per Response: 10.5 engineers to determine the interference FEDERAL COMMUNICATIONS COMMISSION hours (avg). potential of the proposed equipment. Frequency of Response: On occasion OMB Control No.: 3060–0881. Notice of Public Information reporting requirements. Title: Section 95.861, Interference. Collection(s) Being Reviewed by the Total Annual Burden: 21,000 hours. Form No.: N/A. Federal Communications Commission Total Annual Cost: $1,260,000. Type of Review: Extension of a Needs and Uses: Domestic currently approved collection. April 16, 2002. nondominant carriers must file tariffs Respondents: Individuals or SUMMARY: The Federal Communications pursuant to 47 U.S.C. section 203, while households, business or other for-profit. Commission, as part of its continuing implementing regulations are found at Number of Respondents: 400. effort to reduce paperwork burden 47 CFR sections 61.20–61.23. Domestic Estimated Time Per Response: .5 invites the general public and other nondominant common carriers must file hours. Federal agencies to take this tariffs containing specific rates. The FCC Total Annual Burden: 200 hours. opportunity to comment on the uses this information to determine Annual Reporting and Recordkeeping following information collection(s), as whether the rates, terms, and conditions Cost Burden: $0. required by the Paperwork Reduction of service offered are just and Frequency of Response: Act of 1995, Public Law 104–13. An reasonable, as required under the Recordkeeping requirement, third party agency may not conduct or sponsor a Telecommunications Act of 1996, as disclosure requirement, and on occasion collection of information unless it amended. reporting requirement. displays a currently valid control OMB Control Number: 3060–0687. Needs and Uses: The notification number. No person shall be subject to Title: Access to Telecommunications requirement contained in Section any penalty for failing to comply with Equipment and Services by Persons 95.861 requires 218–219 MHz licensees a collection of information subject to the with Disabilities, CC Docket No. 87–124. to notify all households located both Paperwork Reduction Act (PRA) that Form Number: N/A. within a TV Channel 13 Grade B does not display a valid control number. Type of Review: Extension of a contour and an 218–219 MHz system Comments are requested concerning currently approved collection. service area are aware of potential whether the proposed collection of Respondents: Business or other for- interference to Channel 13 TV information is necessary for the proper profit entities. reception. This requirement is intended performance of the functions of the Number of Respondents: 806,100. to prevent potential interference from Commission, including whether the Estimated Time Per Response: 1.2 218–219 MHz operations to TV Channel information shall have practical utility; hours (avg). 13 reception. the accuracy of the Commission’s Frequency of Response: On occasion OMB Control No.: 3060–0695. burden estimate; ways to enhance the reporting requirements; Third party Title: Section 87.219, Automatic quality, utility, and clarity of the disclosure. Operations. information collected; and ways to Total Annual Burden: 991,000 hours. Form No.: N/A. minimize the burden of the collection of Total Annual Cost: $638,000. VerDate 11 Needs and Uses: 47 CFR section FEDERAL COMMUNICATIONS Holdings states that it is not licensed to 68.300 requires telephones with electro- COMMISSION serve the service areas of the Rural magnetic coil hearing aid compatibility ILECs in their entirety. RCC Holdings [CC Docket No. 96–45; DA 02–746] to be stamped with the letters HAC seeks redefinition of the service areas of (hearing aid compatible). Section Wireline Competition Bureau Seeks the Rural ILECs in order to be 68.112(b)(3)(E) requires that employers Comment on RCC Holdings, Inc. designated an ETC only where RCC with 15 or more employees provide Petition for Designation as an Eligible Holdings is licensed to provide CMRS emergency telephones for use by Telecommunications Carrier in the state of Alabama. The Wireline employees with hearing disabilities and Throughout Its Licensed Service Area Competition Bureau seeks comment on that the employers ‘‘designate’’ such in the State of Alabama the RCC Holdings Petition, including telephones for emergency use. Section the requested service area redefinition. 68.224 requires a notice to be contained AGENCY: Federal Communications The petitioner must provide copies of on the surface of the packaging of a Commission. its petition to the Alabama Public telephone that is not hearing aid ACTION: Notice; solicitation of Service Commission at the time of filing compatible. The collection will be comments. with the Commission. The Commission useful primarily to consumers who will also send a copy of this Public SUMMARY: In a public notice in this purchase and/or use telephone Notice to the Alabama Public Service proceeding released on April 2, 2002, equipment to determine whether the Commission by overnight express mail the Wireline Competition Bureau sought telephone is hearing aid compatible. to ensure that the Alabama Public comment on RCC Holdings’ petition Service Commission is notified of the OMB Control Number: 3060–0787. seeking designation of eligibility to notice and comment period. Title: Implementation of the receive Federal universal service Pursuant to §§ 1.415 and 1.419 of the Subscriber Carrier Selection Changes support for a service offered throughout Commission’s rules, interested parties Provisions of the Telecommunications its licensed service area in the state of may file comments as follows: Act of 1996; Policies and Rules Alabama. comments are due May 23, 2002, and Concerning Unauthorized Changes of DATES: Comments are due on or before reply comments are due June 7, 2002. Comments may be filed using the Consumers Long Distance Carriers. May 23, 2002. Reply comments are due on or before June 7, 2002. Commission’s Electronic Comment Form Number: FCC Form 478. ADDRESSES: See SUPPLEMENTARY Filing System (ECFS) or by filing paper Type of Review: Extension of a INFORMATION section for where and how copies. See Electronic Filing of currently approved collection. to file comments. Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998. Comments Respondents: Business or other for FOR FURTHER INFORMATION CONTACT: filed through the ECFS can be sent as an profit entities; Individuals or Mark G. Seifert, Deputy Chief, electronic file via the Internet to households; and State, local, or tribal Telecommunications Access Policy http://www.fcc.gov/e-file/ecfs.html>. government. Division, Wireline Competition Bureau, Generally, only one copy of an Number of Respondents: 28,414. (202) 418–7400 TTY: (202) 418–0484. electronic submission must be filed. If SUPPLEMENTARY INFORMATION: On March Estimated Time Per Response: 2 to 10 multiple docket or rulemaking numbers 19, 2002, RCC Holdings, Inc. (RCC hours (avg). appear in the caption of this proceeding, Holdings) filed with the Commission a however, commenters must transmit Frequency of Response: petition pursuant to section 214(e)(6) one electronic copy of the comments to Recordkeeping; On occasion and semi- seeking designation as an eligible each docket or rulemaking number annual reporting requirements; Third telecommunications carrier (ETC) to referenced in the caption. In completing party disclosure. receive Federal universal service the transmittal screen, commenters Total Annual Burden: 135,126 hours. support for service offered throughout should include their full name, U.S. its licensed service area in the state of Total Annual Cost: None. Postal Service mailing address, and the Alabama. Specifically, RCC Holdings applicable docket or rulemaking Needs and Uses: The goal of Section contends that the Alabama Public number. Parties may also submit an 258 is to eliminate the practice of Service Commission has provided an electronic comment by Internet e-mail. ‘‘slamming,’’ which is the unauthorized affirmative statement that it does not To get filing instructions for e-mail change of a subscriber’s preferred regulate commercial mobile radio comments, commenters should send an carrier. The rules and requirements service (CMRS) carriers, RCC Holdings e-mail to [email protected], and should implementing Section 258 can be found meets all the statutory and regulatory include the following words in the body in 47 CFR Part 64. The purpose of these prerequisites for ETC designation, and of the message, ‘‘get form VerDate 11 mail). The Commission’s contractor, instrument(s) are placed into OMB’s to the Federal Reserve and, as such, no Vistronix, Inc., will receive hand- public docket files. The Federal Reserve issue of confidentiality arises. delivered or messenger-delivered paper may not conduct or sponsor, and the Abstract: The Securities Exchange Act filings for the Commission’s Secretary at respondent is not required to respond of 1934 (’34 Act) authorizes the Board 236 Massachusetts Avenue, NE, Suite to, an information collection that has to regulate securities credit issued by 110, Washington, DC 20002. The filing been extended, revised, or implemented banks, brokers and dealers, and other hours at this location are 8:00 a.m. to on or after October 1, 1995, unless it lenders. The purpose statements, FR U– 7:00 p.m. All hand deliveries must be displays a currently valid OMB control 1, FR T–4, and FR G–3, are held together with rubber bands or number. recordkeeping requirements for banks, fasteners. Any envelopes must be FOR FURTHER INFORMATION CONTACT: brokers and dealers, and other lenders, disposed of before entering the building. Federal Reserve Board Clearance respectively, to document the purpose Commercial overnight mail (other than Officer––Mary M. West––Division of of their loans secured by margin stock. U.S. Postal Service Express Mail and Research and Statistics, Board of Other lenders also must register and Priority Mail) must be sent to 9300 East Governors of the Federal Reserve deregister with the Federal Reserve Hampton Drive, Capitol Heights, MD System, Washington, DC 20551 (202– using the FR G–1 and FR G–2, 20743. U.S. Postal Service first-class 452–3829); OMB Desk Officer–– respectively, and must file an annual mail, Express Mail, and Priority Mail Alexander T. Hunt––Office of report (FR G–4). The Federal Reserve should be addressed to 445 12th Street, Information and Regulatory Affairs, uses the data to identify lenders subject SW, Washington, DC 20554. All filings Office of Management and Budget, New to Regulation U, to verify compliance must be addressed to the Commission’s Executive Office Building, Room 3208, with Regulations T, U, and X, and to Secretary, Office of the Secretary, Washington, DC 20503 (202–395–7860) monitor margin credit. Federal Communications Commission. Final approval under OMB delegated Parties also must send three paper Final approval under OMB delegated authority of the extension for three authority the extension for three years, copies of their filing to Sheryl Todd, with revision, of the following reports: Telecommunications Access Policy years, without revision, of the following Division, Wireline Competition Bureau, reports: 1. Report title: Annual Daylight Federal Communications Commission, 1. Report titles: Registration Statement Overdraft Capital Report for U.S. 445 Twelfth Street SW, Room 5–B540, for Persons Who Extend Credit Secured Branches and Agencies of Foreign Banks Washington, DC 20554. In addition, by Margin Stock (Other Than Banks, Agency form number: FR 2225 commenters must send diskette copies Brokers, or Dealers); Deregistration OMB control number: 7100–0216 to the Commission’s copy contractor, Statement for Persons Registered Frequency: Annual Reporters: foreign banks with U.S. Qualex International, Portals II, 445 Pursuant to Regulation U; Statement of branches or agencies Twelve Street, SW, Room CY–B402, Purpose for an Extension of Credit Secured by Margin Stock by a Person Annual reporting hours: 44 Washington, DC 20054. Estimated average hours per response: Subject to Registration Under Pursuant to § 1.1206 of the 1.0 Commission’s rules, this proceeding Regulation U; Annual Report; Statement Number of respondents: 44 will be conducted as a permit-but- of Purpose for an Extension of Credit by Small businesses are not affected. disclose proceeding in which ex parte a Creditor; and Statement of Purpose for General description of report: This communications are permitted subject an Extension of Credit Secured by information collection is voluntary (12 to disclosure. Margin Stock U.S.C. 248(i), 248–l, and 464) and is not Agency form numbers: FR G–1, FR G– Federal Communications Commission. given confidential treatment. 2, FR G–3, FR G–4, FR T–4, FR U–1 Katherine L. Schroder, Abstract: This report was implemented OMB control numbers: 7100–0011: FR in March 1986 as part of the procedures Division Chief, Accounting Policy Division. G–1, FR G–2, FR G–4; 7100–0018: FR G– [FR Doc. 02–9869 Filed 4–22–02; 8:45 am] used to administer the Federal Reserve 3; 7100–0019: FR T–4; and 7100–0115: Board’s Payments System Risk (PSR) BILLING CODE 6712–01–P FR U–1 policy. A key component of the PSR Frequency: FR G–1, FR G–2, FR G–3, FR policy is a limit, or a net debit cap, on T–4, and FR U–1: on occasion FR G–4: an institution’s negative intraday FEDERAL RESERVE SYSTEM annual Reporters: Individuals and business balance in its Federal Reserve account. Agency Information Collection Annual reporting hours: 1,901 reporting; The Federal Reserve calculates an Activities: Announcement of Board 252,978 recordkeeping institution’s net debit cap by applying Approval Under Delegated Authority Estimated average hours per response: the multiple associated with the net and Submission to OMB FR G–1: 2.5 hours; FR G–2: 15 minutes; debit cap category to the institution’s FR G–3: 10 minutes; FR G–4: 2.0 hours; capital. For foreign banking SUMMARY: Background: Notice is hereby FR T–4: 10 minutes; and FR U–1: 10 organizations (FBOs), a percentage of given of the final approval of proposed minutes the FBO’s capital measure, known as the information collection(s) by the Board of Number of respondents: FR G–1: 98; FR U.S. capital equivalency, is used to Governors of the Federal Reserve G–2: 65; FR G–3: 500; FR G–4: 820; FR calculate the FBO’s net debit cap. System (Board) under OMB delegated T–4: 250; and FR U–1: 6,971 Currently, an FBO with U.S. branches or authority, as per 5 CFR 1320.16 (OMB Small businesses are affected. agencies may voluntarily file the FR Regulations on Controlling Paperwork General description of report: These 2225 to provide the Federal Reserve Burdens on the Public). Board– information collections are mandatory with its capital measure. Because an approved collections of information are (15 U.S.C. 78g). The information in the FBO that files the FR 2225 may be able incorporated into the official OMB FR G–1 and FR G–4 is given to use its total capital in the net debit inventory of currently approved confidential treatment (5 U.S.C. cap calculation, an FBO seeking to collections of information. Copies of the 552(b)(4)). The FR G–2 does not contain maximize its daylight overdraft capacity OMB 83–Is and supporting statements confidential information. The FR G–3, may find it advantageous to file the FR and approved collection of information FR T–4, and FR U–1 are not submitted 2225. An FBO that does not file FR 2225 VerDate 11 may use an alternative capital measure OMB control number: 7100-0217 ∑ COLLATERALIZED CAPACITY (3A) – based on its nonrelated liabilities. Frequency: Annual Depository institutions with self- Current Actions: On January 29, 2002, Reporters: depository institutions, Edge assessed net debit caps that request the Board published proposed changes and agreement corporations, U.S. additional daylight overdraft capacity to this information collection and the branches and agencies of foreign banks must submit, to their Administrative comment period ended April 1, 2002 Annual reporting hours: 1,902 Reserve Banks, written justification to (67 FR 4258). There were no public Estimated average hours per response: support the request for the additional comments received. The Board has 1.0 capacity. In evaluating a depository approved the changes, as originally Number of respondents: 1,902 institution’s request, the Administrative proposed. Small businesses are not affected. Reserve Bank will review the The Federal Reserve Board has General description of report: This institution’s daylight overdraft levels revised its PSR policy regarding the information collection is mandatory (12 and financial condition. If the calculation of an FBO’s net debit cap, U.S.C. 248(i), 248-l, and 464) and may Administrative Reserve Bank approves described in detail in the Federal be accorded confidential treatment the request, the depository institution Register notice published December 13, under the Freedom of Information Act will need to file the collateralized 2001 (66 FR 64419). The revised PSR (5 U.S.C. 552 (b)(4)). capacity resolution. This resolution was policy modifies the criteria used to Abstract: The Federal Reserve Board’s designed to specify the amount, if any, determine the U.S. capital equivalency Payment System Risk (PSR) policy relies of Reserve Bank approved collateral for an FBO. There are no changes to the in part on the efforts of individual pledged and the maximum daylight FR 2225 reporting form; however, the institutions to identify, control, and overdraft capacity amount. reporting instructions will be modified reduce their exposure. The Federal ∑ COLLATERALIZED CAPACITY: to correspond with the revised policy. Reserve collects these resolutions SUPPLEMENT FOR SECURITIES IN-TRANSIT The revisions to the FR 2225 annually to provide information that is (3B) – If a depository institution has instructions are summarized below. essential for their administration of the been approved to receive additional The revised PSR policy (1) eliminates PSR policy. The Report of Net Debit Cap collateralized daylight overdraft the Basle Capital Accord (BCA) criteria comprises three resolutions, located in capacity and pledges securities in and replaces it with the strength of Appendix B of the Guide to the Federal transit to support the additional support assessment (SOSA) rankings Reserve’s Payments System Risk Policy, capacity, the depository institution will and financial holding company (FHC) which are filed by an institution’s board need to file a new resolution 3b. The status in determining U.S. capital of directors depending on the Administrative Reserve Bank may equivalency for an FBO, (2) raises the institution’s needs. Two of the three accept securities in transit on the percentage of capital used in calculating resolutions are used by institutions to Fedwire book–entry securities system as U.S. capital equivalency for certain establish a capacity for daylight collateral to support an institution’s FBOs, and (3) revises the definition of overdrafts that is greater than the maximum daylight overdraft capacity an alternative measure for U.S. capital capacity that is typically assigned by a level. Securities in transit refer to book– equivalency. The SOSA ranking is Reserve Bank. The first resolution is entry securities transferred over composed of four factors, including the used to establish a self–assessed net Fedwire’s National Book–Entry System FBO’s financial condition and debit cap, whereas the second that have been purchased by a prospects, the system of supervision in resolution is used to establish a de depository institution, but not yet paid the FBO’s home country, the record of minimis net debit cap. The third for and owned by the institution’s the home country’s government in resolution is used by institutions to customers. In transit collateral differs support of the banking system or other establish an interaffiliate transfer from stable pool collateral in that the sources of support for the FBO; and arrangement. value of in transit collateral regularly transfer risk concerns. Transfer risk Current Actions: On January 29, 2002, fluctuates intraday where as the value of relates to the FBO’s ability to access and the Board published proposed changes stable pool generally does not. transmit U.S. dollars, which is an to this information collection and the ∑ INTER-AFFILIATE TRANSFER essential factor in determining whether comment period ended April 1, 2002 ARRANGEMENTS – The rescission of the an FBO can support its U.S. operations. (67 FR 4258). There were no public interaffiliate transfer policy rule is The SOSA ranking is based on a scale comments received. The Board has effective on December 31, 2001, at of 1 through 3, with 1 representing the approved the changes, as originally which time depository institutions will lowest level of supervisory concern. proposed. no longer be required to submit a Specifically, the revised PSR policy The Federal Reserve Board has resolution to establish an interaffiliate allows U.S. capital equivalency to equal revised its PSR policy regarding agreement. the following: additional collateralized capacity and The order of the model resolutions ∑ 35 percent of capital for FBOs that interaffiliate transfer arrangements located in Appendix B will be changed are FHCs described in detail in the to: ∑ 25 percent of capital for FBOs that Federal Register notice published ∑ De Minimis Cap are not FHCs and have a strength of December 13, 2001 (66 FR 64419). The ∑ Self-Assessment Cap support assessment ranking (SOSA) Federal Reserve will add a two–part ∑ Collateralized Capacity (3a) ∑ of 1 model resolution to Appendix B used to Collateralized Capacity: Supplement ∑ 10 percent of capital for FBOs that establish additional collateralized for Securities In–transit (3b) are not FHCs and are ranked a capacity and eliminate the model 3. Report titles: Application for Prior SOSA 2 resolution used to establish an Approval to Become a Bank Holding ∑ 5 percent of ‘‘net due to related interaffiliate transfer arrangement. In Company, or for a Bank Holding depository institutions’’ for FBOs addition, the order of the model Company to Acquire an Additional that are not FHCs and are ranked a resolutions in Appendix B will be Bank or Bank Holding Company; Notice SOSA 3. changed. The revisions are described for Prior Approval to Become a Bank 2. Report title: Report of Net Debit Cap below in detail. Holding Company, or for a Bank Agency form number: FR 2226 Revisions to Appendix B Holding Company to Acquire an VerDate 11 Additional Bank or Bank Holding FEDERAL RESERVE SYSTEM retain voting shares of Indian River Company; and Notification for Prior National Bank, Vero Beach, Florida. Change in Bank Control Notices; Approval to Engage Directly or Board of Governors of the Federal Reserve Indirectly in Certain Nonbanking Acquisition of Shares of Bank or Bank System, April 18, 2002. Holding Companies Activities. Robert deV. Frierson, Agency form numbers: FR Y–3, FR Y– Deputy Secretary of the Board. 3N, and FR Y–4 The notificants listed below have OMB control number: 7100–0121 applied under the Change in Bank [FR Doc. 02–9936 Filed 4–22–02; 8:45 am] Frequency: Event–generated Control Act (12 U.S.C. 1817(j)) and BILLING CODE 6210–01–S Reporters: Corporations seeking to § 225.41 of the Board’s Regulation Y (12 become bank holding companies, or CFR 225.41) to acquire a bank or bank FEDERAL RESERVE SYSTEM bank holding companies and state holding company. The factors that are considered in acting on the notices are chartered banks that are members of the Formations of, Acquisitions by, and set forth in paragraph 7 of the Act (12 Federal Reserve System Mergers of Bank Holding Companies Annual reporting hours: 22,003 U.S.C. 1817(j)(7)). Estimated average hours per response: The notices are available for The companies listed in this notice FR Y–3, Section 3(a)(1): 49 hours; immediate inspection at the Federal have applied to the Board for approval, FR Y–3, Section 3(a)(3) and 3(a)(5): Reserve Bank indicated. The notices pursuant to the Bank Holding Company 59.5 hours; also will be available for inspection at Act of 1956 (12 U.S.C. 1841 et seq.) FR Y–3N, Sections 3(a)(1), 3(a)(3), and the office of the Board of Governors. (BHC Act), Regulation Y (12 CFR Part 3(a)(5): 5 hours; Interested persons may express their 225), and all other applicable statutes FR Y–4, complete notification: 12 views in writing to the Reserve Bank and regulations to become a bank hours; indicated for that notice or to the offices holding company and/or to acquire the FR Y–4, expedited notification: 5 of the Board of Governors. Comments assets or the ownership of, control of, or hours; and must be received not later than May 8, the power to vote shares of a bank or FR Y–4, post-consummation: 0.5 2002. bank holding company and all of the hours. A. Federal Reserve Bank of Atlanta banks and nonbanking companies Number of respondents: 823 (Sue Costello, Vice President) 1000 owned by the bank holding company, Small businesses are affected. Peachtree Street, N.E., Atlanta, Georgia including the companies listed below. General description of reports: This 30309–4470: The applications listed below, as well information collection is mandatory (12 as other related filings required by the U.S.C. 1842(a)(1), 1844(c), and 1. Greene Revocable Trust U/A/D 8- Board, are available for immediate 1843(c)(8)) and may be accorded 29-90 Barnette Ellis Green, Jr. & Hariot inspection at the Federal Reserve Bank confidential treatment under the Hughes Greene, Co-Trustees; Hariot H. indicated. The application also will be Freedom of Information Act (5 U.S.C. Greene Revocable Trust U/A/D 6-29-99 available for inspection at the offices of 552 (b)(4)). Barmette Ellis Greene, Jr. & Hariot the Board of Governors. Interested Abstract: The Federal Reserve requires Hughes Greene, Co-Trustees; Jack Irvine persons may express their views in the application and the notifications for Greene; Janie Elizabeth Greene; Ellis writing on the standards enumerated in regulatory and supervisory purposes Sutherland Greene and Kathleen Farrell the BHC Act (12 U.S.C. 1842(c)). If the and to allow the Federal Reserve to Greene; Griffin Aubrey Greene and proposal also involves the acquisition of fulfill its statutory obligations under the Camille Koby Greene; Griffin Aubrey a nonbanking company, the review also Bank Holding Company Act of 1956 (the Greene; Kelly Foster Greene; Kelly Foster includes whether the acquisition of the BHC Act). The forms collect information Greene and Linda Cook Greene; Scott nonbanking company complies with the concerning proposed BHC formations, Hughes Steiger Irrevocable Trust II U/A/ standards in section 4 of the BHC Act acquisitions, and mergers, and proposed D 1-10-89 Griffin Aubrey Greene and (12 U.S.C. 1843). Unless otherwise nonbanking activities. The Federal Janie Elizabeth Greene, Trustees; Derek noted, nonbanking activities will be Reserve must obtain this information to Brian Steiger Irrevocable Trust II U/A/D conducted throughout the United States. evaluate each individual transaction 1-10-89 Griffin Aubrey Greene and Janie Additional information on all bank with respect to permissibility, Elizabeth Greene, Trustees; Jasaline holding companies may be obtained competitive effects, adequacy of Celeste Greene Trust U/A/D 8-29-90 from the National Information Center financial and managerial resources, net Ellis Sutherland Greene and Janie website at www.ffiec.gov/nic/. public benefits, and impact on the Elizabeth Greene, Trustees; Amanda convenience and needs of affected Kathleen Greene Trust U/A/D 8-29-90 Unless otherwise noted, comments communities. Ellis Sutherland Greene and Janie regarding each of these applications Current Actions: On January 29, 2002, Elizabeth Greene, Trustees; Kolby must be received at the Reserve Bank the Board published proposed changes Barnette Greene Trust U/A/D 11-12-98 indicated or the offices of the Board of to this information collection and the Kelly Foster Greene and Janie Elizabeth Governors not later than May 17, 2002. comment period ended April 1, 2002 Greene, Trustees; Kylee Joyce Greene A. Federal Reserve Bank of San (67 FR 4257). There were no public Trust U/A/D 3-24-00 Kelly Foster Greene Francisco (Maria Villanueva, Consumer comments received. The Board has and Janie Elizabeth Greene Trustees; Regulation Group) 101 Market Street, approved the changes, as originally Greene Girls Properties, LLP; Greene San Francisco, California 94105–1579: proposed. Groves & Ranch, LTD; Camille Koby 1. Citizens Bank Holding Company, Board of Governors of the Federal Greene, IRA; Jack Irvine Greene, IRA; Pocatello, Idaho; to become a bank Reserve System, April 17, 2002. Griffin Aubrey Greene; Whitney C. holding company by acquiring 100 Greene; Lyndal M. Greene; Aubrey L. percent of the voting shares of Citizens Jennifer J. Johnson, Greene; Anabelle G. Greene, all of Vero Community Bank, Pocatello, Idaho. Secretary of the Board. Beach, Florida; to retain voting shares of 2. Snake River Bancorp, Inc., Twin [FR Doc. 02–9864 Filed 4–22–02; 8:45 am] Indian River Banking Company, Vero Falls, Idaho; to become a bank holding BILLING CODE 6210–01–S Beach, Florida, and thereby indirectly company by acquiring 100 percent of VerDate 11 the voting shares of Magic Valley Bank, Board of Governors of the Federal Reserve ACTION: Notice of a request for review Twin Falls, Idaho. System, April 17, 2002. and extension of the collection (3090– Robert deV. Frierson, Board of Governors of the Federal Reserve 0248). System, April 17, 2002. Deputy Secretary of the Board. [FR Doc.02–9866 Filed 4–22–02; 8:45 am] SUMMARY: Under the provisions of the Robert deV. Frierson, BILLING CODE 6210–01–S Paperwork Reduction Act of 1995 (44 Deputy Secretary of the Board. U.S.C. Chapter 35), the General Services [FR Doc. 02–9865 Filed 4–22–02; 8:45 am] Administration’s (GSA) will be BILLING CODE 6210–01–S BOARD OF GOVERNORS OF THE submitting to the Office of Management FEDERAL RESERVES SYSTEM and Budget (OMB) a request to review and approve an extension of a currently FEDERAL RESERVE SYSTEM Sunshine Act; Meeting approved information collection that pertains to GSAR 516.506, Solicitation AGENCY HOLDING THE MEETING: Board of Notice of Proposals to Engage in provisions and contract clauses and Governors of the Federal Reserve Permissible Nonbanking Activities or GSAR Placement of Orders Clause and System. to Acquire Companies that are Ordering Information clauses. The Engaged in Permissible Nonbanking TIME AND DATES: 11 a.m., Monday, April information collected is required by Activities 29, 2002. regulation. The information collected PLACE: Marriner S. Eccles Federal under this collection is collected The companies listed in this notice Reserve Board Building, 20th and C through Electronic Data Interchange have given notice under section 4 of the Streets, NW., Washington, DC 20551. (EDI) in accordance with the Federal Bank Holding Company Act (12 U.S.C. STATUS: Closed. Government’s mandate to increase 1843) (BHC Act) and Regulation Y (12 electronic commerce. This notice MATTERS TO BE CONSIDERED: CFR Part 225) to engage de novo, or to indicates GSA’s intent to request an 1. Personnel actions (appointments, acquire or control voting securities or extension by 3 years and to request promotions, assignments, assets of a company, including the public review and comment on the reassignments, and salary actions) companies listed below, that engages collection. involving individual Federal Reserve either directly or through a subsidiary or Public comments are particularly other company, in a nonbanking activity System employees. 2. Any items carried forward from a invited on: Whether the information that is listed in § 225.28 of Regulation Y collection required by GSAR 516. 506 (12 CFR 225.28) or that the Board has previously announced meeting. FOR FURTHER INFORMATION CONTACT: and generated by the GSAR Clauses, determined by Order to be closely 552.216–72, Placement of Orders and related to banking and permissible for Michelle A. Smith, Assistant to the Board; 202–452–2955. 552.216–73, Ordering Information, is bank holding companies. Unless necessary, to ensure FSS maximizes the otherwise noted, these activities will be SUPPLEMENTARY INFORMATION: You may use of computer-to-computer electronic conducted throughout the United States. call 202–452–3206 beginning at data interchange (EDI) to place delivery Each notice is available for inspection approximately 5 p.m. two business days orders; whether it will have practical at the Federal Reserve Bank indicated. before the meeting for a recorded utility; whether our estimate of the The notice also will be available for announcement of bank and bank public burden of this collection of inspection at the offices of the Board of holding company applications information is accurate, and based on Governors. Interested persons may scheduled for the meeting; or you may valid assumptions and methodology; express their views in writing on the contact the Board’s Web site at http:// ways to enhance the quality, utility, and question whether the proposal complies www.federalreserve.gov for an electronic clarity of the information to be with the standards of section 4 of the announcement that not only lists collected; and ways in which we can BHC Act. Additional information on all applications, but also indicates minimize the burden of the collection of bank holding companies may be procedural and other information about information on those who are to obtained from the National Information the meeting. respond, through the use of appropriate Center website at www.ffiec.gov/nic/. Dated: April 19, 2002. technological collection techniques or Unless otherwise noted, comments Robert deV. Frierson, other forms of information technology. regarding the applications must be Deputy Secretary of the Board. DATES: Comment Due Date: June 24, received at the Reserve Bank indicated [FR Doc. 02–10100 Filed 4–19–02; 3:53 pm] 2002. or the offices of the Board of Governors BILLING CODE 6210–01–P not later than May 7, 2002. ADDRESSES: Comments regarding this burden estimate or any other aspect of A. Federal Reserve Bank of Atlanta this collection of information, including (Sue Costello, Vice President) 1000 GENERAL SERVICES suggestions for reducing this burden, Peachtree Street, N.E., Atlanta, Georgia ADMINISTRATION should be submitted to: Stephanie 30309–4470: Morris, General Services [OMB Control No. 3090–0248] 1. Commerce Bancshares, Inc., Administration, Acquisition Policy Brownsville, Tennessee; to acquire Submission for OMB Review and Division, 1800 F Street, NW, Room Citizens Corporation, Franklin, Extension, GSAR 516.506, Solicitation 4035, Washington, DC 20405 or fax to Tennessee, and thereby engage in Provisions and Contract Clause, (202) 501–5067. Please cite OMB making, acquiring, brokering, or 552.216–72, Placement of Orders Control Number 3090–0248. servicing loans or other extensions of Clause and 552.216–73, Ordering FOR FURTHER INFORMATION CONTACT: Julia credit, credit insurance, and data Information Clause processing activities, pursuant to §§ Wise, Acquisition Policy Division, GSA (202) 208–1168. 225.28(b)(1), (b)(11)(iii), and (b)(14) of AGENCY: General Services Regulation Y. Administration (GSA). SUPPLEMENTARY INFORMATION: VerDate 11 A. Purpose of the functions of the agency, including Place: Conference Call, Participants’ The General Services Administration whether the information shall have Information to be Announced. (GSA) has various mission practical utility; (b) the accuracy of the Status: Open. responsibilities related to the agency’s estimate of the burden of the Purpose: During this telephone acquisition and provision of Federal proposed collection of information; (c) conference call, the Committee will Supply Service’s (FSS’s) Stock, Special ways to enhance the quality, utility and discuss its comments to the Department Order, and Schedules Programs. These clarity of the information to be on the Current Notice of Proposed Rule mission responsibilities generate collected; and (d) ways to minimize the Making Covering proposed changes to requirements that are realized through burden of the collection of information the Health Insurance Portability and the solicitation and award of various on respondents, including through the Accountability Act of 1996 (HIPAA) types of FSS contracts. Individual use of automated collection techniques Privacy Rule. solicitations and resulting contracts may or other forms of information Notice: This conference call is open to impose unique information collection technology. the public using a participants’ dial-in and reporting requirements on Proposed Project: ‘‘National Study of telephone number and participants’ contractors, not required by regulation, Culturally and Linguistically code, but access may be limited by the but necessary to evaluate particular Appropriate Services in Local Public number of available telephone lines. program accomplishments and measure Health Agencies’’—New—The Office of The number and code will be success in meeting program objectives. Minority Health proposes to conduct a announced on the NCVHS website survey with a national sample of local http://www.ncvhs.hhs.gov/. B. Annual Reporting Burden health departments serving racially and CONTACT PERSON FOR MORE INFORMATION: Respondents: 5380. ethnically diverse communities. The Substantive program information as Responses for Respondent: 1. survey will provide data on the types of well as summaries of meetings and a Total Responses: 5380. policies and practices that promote the roster of committee members may be Hours Per Response: .25. delivery of culturally and linguistically obtained from Majorie S. Greenberg, Total Burden Hours. 1, 345. appropriate services by local health Executive Secretary, NCVHS, National departments, and the factors that Center for Health Statistics, Centers for Obtaining Copies of Proposals facilitate and detract from the Disease Control and Prevention, Room Requester may obtain a copy of the implementation of such policies and 1100, Presidential Building, 6525 proposal from the General Services practices. The data collected will inform Belcrest Road, Hyattsville, Maryland Administration, Acquisition Policy the Office of Minority Health about the 20782, telephone (301) 458–4245. (MVP), 1800 F Street, NW., Room 4035, current nature and extent of such Information also is available on the Washington, DC 20405, telephone (202) services. NCVHS home page of the HHS website: 501–4744. Please cite OMB Control No. Respondents: Business or other for- http://www.ncvhs.hhs.gov/. profit, Non-profit organizations; 3090–0248, Placement of Orders and Dated: April 17, 2002. Number of Respondents: 150; Ordering Information, in all James Scanlon, correspondence. Response per Respondent: 3; Average Burden per Response: 30 Director, Division of Data Policy, Office of Dated: April 15, 2002. the Assistant Secretary for Planning and minutes; Al Matera, Evaluation. Total Burden: 225 hours. Director, Acquisition Policy Division. [FR Doc. 02–9874 Filed 4–22–02; 8:45 am] Send comments via e-mail to BILLING CODE 4151–01–M [FR Doc. 02–9933 Filed 4–22–02; 8:45 am] [email protected]. or mail to OS BILLING CODE 6820–34–M Reports Clearance Office, Room 503H, Hubert H. Humphrey Building, 200 DEPARTMENT OF HEALTH AND Independence Avenue SW., Washington HUMAN SERVICES DEPARTMENT OF HEALTH AND DC, 20201. Comments should be HUMAN SERVICES received within 60 days of this notice. Centers for Disease Control and Prevention Office of the Secretary Dated: April 15, 2002. Kerry Weems, [60Day–02–43] Agency Information Collection Acting, Deputy Assistant Secretary, Budget. Activities; Proposed Collections; [FR Doc. 02–9873 Filed 4–22–02; 8:45 am] Proposed Data Collections Submitted Comment Request BILLING CODE 4150–29–M for Public Comment and Recommendations The Department of Health and Human Services, Office of the Secretary will In compliance with the requirement DEPARTMENT OF HEALTH AND periodically publish summaries of of Section 3506(c)(2)(A) of the HUMAN SERVICES proposed information collections Paperwork Reduction Act of 1995 for projects and solicit public comments in National Committee on Vital and Health opportunity for public comment on compliance with the requirements of Statistics: Meeting proposed data collection projects, the Section 3506(c)(2)(A) of the Paperwork Centers for Disease Control and Reduction Act of 1995. To request more Pursuant to the Federal Advisory Prevention (CDC) will publish periodic information on the project or to obtain Committee Act, the Department of summaries of proposed projects. CDC is a copy of the information collection Health and Human Services announces requesting an emergency clearance from plans and instruments, call the OS the following advisory committee the Office of Management and Budget Reports Clearance Office at (202) 619– meeting. (OMB) to collect data under the Fertility 2118 or e-mail [email protected]. Name: National Committee on Vital Clinic Success Rate and Certification Comments are invited on: (a) Whether and Health Statistics (NCVHS), HHS. Act (FCSRCA) of 1992. Send comments the proposed collection of information Time and Date: 12 noon–1 p.m. to Anne O’Connor, CDC Assistant is necessary for the proper performance EDT—April 24, 2002. Reports Clearance Officer, 1600 Clifton VerDate 11 Road, MS D–24, Atlanta, GA 30333. the Centers for Disease Control and outcome of each cycle, as well as a Written comments should be received Prevention—(1) pregnancy success rates number of data items deemed important within 14 days of this notice. OMB is achieved by such ART program, and (2) to explain variability in success rates expected to act on the request of CDC the identity of each embryo laboratory across clinics and across individuals. within 21 days of publication of this used by such ART program and whether Data is to be collected through computer notice. the laboratory is certified or has applied software developed by SART in for such certification under this act. consultation with CDC. Proposed Project The Centers for Disease Control and Assisted Reproductive Technology Prevention (CDC) is seeking approval of In developing the definition of (ART) Program Reporting System— a reporting system for Assisted pregnancy success rates and the list of New—National Center for Chronic Reproductive Technology data items to be reported, CDC has Disease Prevention and Health (ART)Program from the Office of consulted with representatives of SART, Promotion (NCCDPHP), Centers for Management and Budget (OMB). This the American Society for Reproductive Disease Control and Prevention (CDC). reporting system has been designed in Medicine, and RESOLVE, the National Background: Section 2(a) of Pub. L. collaboration with the Society for Infertility Association (a national, 102–493 (known as the Fertility Clinic Reproductive Technology to comply nonprofit consumer organization), as Success Rate and Certification Act of with the requirements of the FCSRCA. well as a variety of individuals with 1992 (FCSRCA), 42 U.S.C. 263a–1(a)) The reporting system includes all ART expertise and interest in this field. The requires that each assisted reproductive cycles initiated by any of the average annual cost to the respondent, technology (ART) program shall approximately 400 ART programs in the including data entry labor and fees, is annually report to the Secretary through United States, and covers the pregnancy estimated to be $2,140. Number of Average Respondents Number of re- responses/re- burden/response Total spondents spondent (in hours) burden (in hours) ART Clinics ...... 400 220 5⁄60 7,333 Total ...... 7,333 Dated: April 16, 2002. Administration, 5600 Fishers Lane, committees that held closed meetings Nancy E. Cheal, Rockville, MD 20857, 301–827–1220. during the period October 1, 1999, Acting Associate Director for Policy, Planning SUPPLEMENTARY INFORMATION: Under through September 30, 2000: and Evaluation, Centers for Disease Control section 13 of the Federal Advisory Center for Biologics Evaluation and and Prevention. Committee Act (5 U.S.C. App. 2) and 21 Research: [FR Doc. 02–9843 Filed 4–22–02; 8:45 am] CFR 14.60 (c), FDA has filed with the Biological Response Modifiers BILLING CODE 4163–18–P Library of Congress the annual reports Advisory Committee, for the following FDA advisory Blood Products Advisory Committee, committees that held closed meetings Transmissible Spongiform DEPARTMENT OF HEALTH AND during the period October 1, 1998, Encephalopathies Advisory HUMAN SERVICES through September 30, 1999: Committee, and Center for Biologics Evaluation and Vaccines and Related Biological Food and Drug Administration Research: Products Advisory Committee. Allergenic Products Advisory Advisory Committees; Filing of Annual Center for Drug Evaluation and Committee, Reports Research: Biological Response Modifiers Antiviral Drugs Advisory Committee, AGENCY: Food and Drug Administration, Advisory Committee, and Arthritis Advisory Committee, and HHS. Vaccines and Related Biological Dermatologic and Ophthalmic Drugs Products Advisory Committee. Advisory Committee. ACTION: Notice. Center for Drug Evaluation and Center for Devices and Radiological Research: Health: SUMMARY: The Food and Drug Antiviral Drugs Advisory Committee, Administration (FDA) is announcing Medical Devices Advisory Committee. Arthritis Advisory Committee, National Center for Toxicological that, as required by the Federal Dermatologic and Ophthalmic Drugs Research: Advisory Committee Act, the agency has Advisory Committee, filed with the Library of Congress the Drug Abuse Advisory Committee, and Science Advisory Board to the annual reports of those FDA advisory Oncologic Drugs Advisory Committee. National Center for Toxicological committees that held closed meetings. Center for Devices and Radiological Research. Health: Annual reports are available for ADDRESSES: Copies of the annual reports public inspection at: (1) The Library of are available from the Dockets Medical Devices Advisory Committee. National Center for Toxicological Congress, Madison Bldg., Newspaper Management Branch (HFA–305), Food Research: and Current Periodical Reading Room, and Drug Administration, 5630 Fishers Science Advisory Board to the 101 Independence Ave. SE., rm. 133, Lane, rm. 1061, Rockville, MD 20852, National Center for Toxicological Washington, DC; and (2) the Dockets 301–827–6860. Research. Management Branch (HFA–305), Food FOR FURTHER INFORMATION CONTACT: Science Board to the Food and Drug and Drug Administration, 5630 Fishers Linda Ann Sherman, Advisory Administration. Lane, rm. 1061, Rockville, MD 20852, Committee Oversight and Management Annual reports have also been filed between 9 a.m. and 4 p.m., Monday Staff (HF–4), Food and Drug for the following FDA advisory through Friday. VerDate 11 Dated: April 8, 2002. MUST be spent on primary care services announcement may be obtained from Linda A. Suydam, to HIV-positive individuals. the HRSA Grants Application Center, Senior Associate Commissioner for Eligible Applicants: Applications will 901 Russell Avenue Suite 450, Communications and Constituent Relations. be accepted only from current Ryan Gaithersburg, MD 20879, Attn: CFDA [FR Doc. 02–9813 Filed 4–22–02; 8:45 am] White CARE Act Title III Planning 93.918B; telephone 1–877–477–2234; e- BILLING CODE 4160–01–S grantees. The purpose of this limited mail address [email protected]. competition is to ensure that the Federal FOR FUTHER INFORMATION CONTACT: investment of funds made through the Additional information related to the DEPARTMENT OF HEALTH AND planning grantees, within these existing program may be requested by contacting HUMAN SERVICES communities, is utilized to the fullest the Title III Primary Care Services extent possible to develop a Branch at (301) 443–0735. Health Resources and Services comprehensive primary care site for HIV Administration services. These current Planning Dated: April 16, 2002. grantees were previously selected by an Elizabeth M. Duke, Title III Early Intervention Services open and competitive process and Administrator. Program approved to plan for the establishment [FR Doc. 02–9814 Filed 4–22–02; 8:45 am] AGENCY: Health Resources and Services of comprehensive HIV services. BILLING CODE 4165–15–P Administration, HHS. Applicants must be public or private non-profit entities. Faith-based and ACTION: Notice of availability of funds. community-based organizations are DEPARTMENT OF HEALTH AND SUMMARY: The Health Resources and eligible to apply. HUMAN SERVICES Services Administration (HRSA) Funding Priorities and/or Preferences: announces the availability of fiscal year In awarding these grants, preference Indian Health Service will be given to applicants located in (FY) 2002 funds to be awarded under List of Recipients of Indian Health the Ryan White Comprehensive AIDS rural or underserved communities where HIV primary health care Scholarships Under the Indian Health Resources Emergency (CARE) Act Title Scholarship Program III Early Intervention Services (EIS) resources, including financial resources Program to support outpatient HIV early available from the Ryan White CARE The regulations governing Indian intervention and primary care services Act, remain insufficient to meet the Health Care Improvement Act Programs for low-income, medically underserved need for HIV primary care services. (Pub. L. 94–437) provide at 42 CFR people in existing primary care systems. Authorizing Legislation: The EIS 36.334 that the Indian Health Service Grants will be awarded for a 3-year Program is authorized by the Public shall publish annually in the Federal period. Health Service (PHS) Act, as amended Register a list of recipients of Indian Program Purpose: The primary goal of by Public Law 106–345, the Ryan White Health Scholarships, including the the EIS Program is to increase access to CARE Act Amendments of 2000 (42 U.S. name of each recipient, school and high quality outpatient HIV primary Code 300–71). tribal affiliation, if applicable. These Availability of Funds: The program care for low-income, and/or medically scholarships were awarded under the has approximately 6 million dollars underserved populations within authority of sections 103 and 104 of the available for this initiative. HRSA existing primary care systems. All Indian Health Care Improvement Act, 25 expects to fund approximately 20 programs must have, or establish a U.S.C. 1613–1613a, as amended by the programs for 3 years. The budget and comprehensive and coordinated Indian Health Care Amendments of project periods for approved and funded continuum of outpatient HIV primary 1988, Pub. L. 100–713. projects will begin on or about care services in targeted geographic The following is a list of Indian September 1, 2002. Continuation awards areas as specified by the applicant. The Health Scholarship Recipients funded within the project period will be made EIS program defines comprehensive HIV under Sections 103 and 104 for Fiscal on the basis of satisfactory progress and primary care as that which begins with Year 2001: early identification services (testing and the availability of funds. Application Deadline: Applications Abeita, Lynn Ann, Arizona State counseling), medical evaluation/clinical University, Pueblo of Isleta, NM care, oral health care, adherence must be received in the HRSA Grant Application Center (GAC) at the address Abeita, Steven John, University of New counseling, nutritional counseling, Mexico-Albuquerque, Pueblo of Isleta, mental health, and substance abuse and below by the close of business June 21, 2002. All applications will meet the NM includes a coordinated referral system Adams, Andrea L., University of North for specialty and subspecialty care. deadline if they are either (1) received on or before the deadline date or (2) Dakota, Assiniboine & Sioux Tribes of Program Requirements postmarked on or before the deadline the Fort Peck Indian Reservation, MT Funded programs will be expected to date, and received in time for Alexander, Andrea Lynn, University of provide: submission to the objective review Central Oklahoma, Seminole Nation (1) HIV counseling, testing, and panel. A legible dated receipt from a of Oklahoma referral; commercial carrier or U.S. Postal Alexander, Lise Kalliah, University of (2) Medical evaluation and clinical Service will be accepted instead of a Washington School of Medicine, care; postmark. Private metered postmarks Confederated Tribes of the Grand (3) Other primary care services; and will not be accepted as proof of timely Ronde Community of Oregon (4) Facilitated referrals to other health mailing. Allery, Cynthia Ann, University of services. Obtaining Application Guidance and North Dakota, Turtle Mountain Band Funded programs must provide the Kit: You may access the program of Chippewa Indians of North Dakota proposed services directly and/or guidance alone on HRSA’s web site at Allery, Lonnie William, Turtle through formal agreements with public www.hrsa.hab.gov/grants.html. Mountain Community College, Turtle or nonprofit private entities. A The official grant application kit and Mountain Band of Chippewa Indians minimum of 50% of funds awarded program guidance materials for this of North Dakota VerDate 11 Allison, Rochelle Jade, Arizona State Bedoni, Theda, Scottsdale Community of the Cheyenne River Reservation, University, Navajo Tribe of AZ, NM, College, Navajo Tribe of AZ, NM, & SD & UT UT Boyd, Cassandra Iva, University of New Alonzo, Pearl Ann, University of New Begay, Lorena Rose, La Sierra Mexico-Albuquerque, Navajo Tribe of Mexico, Navajo Tribe of AZ, NM, & University, Navajo Tribe of AZ, NM, AZ, NM, & UT UT & UT Bradley, Stephanie, East Carolina Anagal, Laura Ann, Northland Pioneer Begay, Michelle, University of Arizona, University School of Medicine, College, Navajo Tribe of AZ, NM, & Navajo Tribe of AZ, NM, & UT Eastern Band of Cherokee Indians of UT Begay, Mirielle Rose, University of New North Carolina Anderson, Ella Mae, Gateway Mexico, Navajo Tribe of AZ, NM, & Brantingham, Michael James, Pacific Community College, Navajo Tribe of UT Union College, Eskimo AZ, NM, & UT Begay, Paula Moiselle, Weber State Breland, Kylie Lea, University of North Anderson-McMillan, Tarina Kay, University, Navajo Tribe of AZ, NM, Dakota, Turtle Mountain Band of University of Southern Mississippi, & UT Chippewa Indians of North Dakota Mississippi Band of Choctaw Indians, Begay, Pierrette Rose, University of New Briggs, Misty Elaine, Northeastern State MS Mexico-Albuquerque, Navajo Tribe of University, Cherokee Nation, Arnold, Delphine, University of New AZ, NM, & UT Oklahoma Mexico-Gallup, Navajo Tribe of AZ, Begay, Tamana Dollicia, University of Brinson, Timothy James, East Central NM, & UT the Pacific, Navajo Tribe of AZ, NM University, Citizen Potawatomi Arredondo, LaDonna Leann, & UT Nation, Oklahoma Southwestern Oklahoma State Begaye, Dorothea Tricia, Albuquerque Brooks-Dugger, Shelly Beth, Southwest University, Choctaw Nation of Tech-Voc Institute, Navajo Tribe of Texas State University, Cherokee Oklahoma AZ, NM, & UT Nation, Oklahoma Arviso, Angela, University of New Behymer, Virginia May, University of Brosel, Conrad Carl, Cardinal Stritch Mexico, Navajo Tribe of AZ, NM, & Alaska-Anchorage, Aleut, AK University, Oneida Tribe of Benally, Annisa, New Mexico Highland UT Wisconsin Ashley, Jeannette, New Mexico State University, Navajo Tribe of AZ, NM, Brown, Christina Ann, University of University-Albuquerque, Navajo Tribe & UT California-San Diego, Paiute- Benally, Yolanda Jean, New Mexico of AZ, NM, & UT Shoshone Indians of the Bishop State University, Navajo Tribe of AZ, Ashley, Natalie Lynn, Arizona State Community of the Bishop Colony, CA NM, & UT Brown, Gerald Ray, Southwestern University, Navajo Tribe of AZ, NM, Berquist, Melissa Dawn, University of Oklahoma State University, Cherokee & UT North Dakota, Turtle Mountain Band Baca, Vonda Jean, Albuquerque Tech- Nation, Oklahoma of Chippewa Indians of North Dakota Brown, Laverne, University of New Voc Institute, Pueblo of Jemez, NM Berryhill-Baker, Tishanda Leigh, Mexico-Gallup, Navajo Tribe of AZ, Baca, Wilma Joyce, Albuquerque Tech- University of Utah College of NM, & UT Voc Institute, Pueblo of Jemez, NM Medicine, Muskogee (Creek) Nation, Bruce-Gallardo, Dawn Marie, University Bacoch, Michaele, University of the Oklahoma of North Dakota, Turtle Mountain Pacific School of Pharmacy, Big Pine Bessette, Megan Holly, Whitman Band of Chippewa Indians of North Band of Owens Valley Paiute College, White Mountain Apache Dakota Shoshone Indians of the Big Pine Tribe of the Fort Apache Reservation, Bryant, Idella Marie, Midwestern Reservation, CA AZ, Wichita and Affiliated Tribes University, Cherokee Nation, Bailor, Jeanne Lesley, Bartlesville (Wichita, Keechi, Waco & Tawakonie), Oklahoma Wesleyan College, Cherokee Nation, OK Bryant, Joseph Preston, Southwestern Oklahoma Betonie, Darlene Smith, University of Oklahoma State University, Cherokee Bain, Edlin David, University of New Minnesota School of Nursing, Navajo Nation, Oklahoma Buenting, Lisa Mexico College of Pharmacy, Navajo Tribe of AZ, NM, & UT Lynette, Loma Linda University, Mesa Tribe of AZ, NM, & UT Beyale, Justina, Northern Arizona Grand Band of Diegueno Mission Baker, Andrea Monique, University of University, Navajo Tribe of AZ, NM, Indians of the Mesa Grande North Dakota, Muskogee (Creek) & UT Reservation, CA Nation, Oklahoma Bighorn, Lisa Elaine, University of Bullard, Averna Lee, Indian University/ Barnes, Kellie Elizabeth, University of Denver, Assiniboine & Sioux Tribes of Purdue University, Lumbee Oklahoma, Chickasaw Nation, the Fort Peck Indian Reservation, MT Burk, Kristi Carroll, Fort Lewis College, Oklahoma Bighorn, Prairie Rose, Rocky Mountain Alaska Native Barnes, Rebecca Anne, Northeastern College, Assiniboine & Sioux Tribes of Burris, Brandon Christopher, University State University, Cherokee Nation, the Fort Peck Indian Reservation, MT of Texas-Austin, Caddo Indian Tribe Oklahoma Billy, Matilda, New Mexico Highlands of Oklahoma Bartholomew, Michael Lee, Dartmouth University, Navajo Tribe of AZ, NM, Burton, Marlette Alyce, Pima Medical School, Kiowa Indian Tribe & UT Community College, Navajo Tribe of of Oklahoma Bingham, Zachary Scott, University of AZ, NM, & UT Bates, Vanesscia, Washington New Mexico-Albuquerque, Cherokee Busch, Richard Eugene, University of University, Navajo Tribe of AZ, NM, Nation, Oklahoma Alaska-Fairbanks, Alaska Native & UT Blackwolf, Kerrie Ann, Rose State Butterfly, Glenn Curtis, Pima Medical Bearmedicine, Jennifer Lynn, Salish- College, Cheyenne-Arapaho Tribes of Institute, Blackfeet Tribe of the Kooteenai Community College, Oklahoma Blackfeet Indian Reservation of MT Blackfeet Tribe of the Blackfeet Indian Boloz, Angelita Colleen, Northern Cain, Marcia Lynnette, University of Reservation of MT Arizona University, Navajo Tribe of Montana School of Pharmacy, Sitka Becenti, Deann Lynn, University of New AZ, NM, & UT Tribe Community Association Mexico-Gallup, Navajo Tribe of AZ, Booth, Loretta Marie, Pacific University Calf Looking, John Fitzgerald, NM, & UT College, Cheyenne River Sioux Tribe University of Washington Medex VerDate 11 Northwest Program, Blackfeet Tribe of Cooper, April Deann, University of Delgado, Jamael Theresa, Northern the Blackfeet Indian Reservation of Central Arkansas, Cherokee Nation, Arizona University, Navajo Tribe of MT Oklahoma AZ, NM, & UT Calf Robe, Douglas Wayne, University of Cooper, Benjamine Dale, Northeastern Delmar, Marjorie, Northern Arizona Washington Medex Northwest State University, Cherokee Nation, University, Navajo Tribe of AZ, NM, Program, Blackfeet Tribe of the Oklahoma & UT Blackfeet Indian Reservation of MT Corley, Ethelinda Whitey, San Juan Delment, Rachael Leah, Emory Calvin, Shawn Allen, University of Community College, Navajo Tribe of University School of Medicine, Oglala Oklahoma Health Sciences Center, AZ, NM, & UT Sioux Tribe of the Pine Ridge Choctaw Nation of Oklahoma Corson, Hillary Lena, Montana State Reservations, SD Calvin-Salyer, Amber Lorine, Oklahoma University-Bozeman, Crow Tribe of Denson, Kent Douglas, University of State University, Choctaw Nation of Montana Oklahoma Health Sciences Center, Oklahoma Cree, Sharon, University of North Chickasaw Nation, Oklahoma Campbell, Gabriel Antonio, University Dakota, Turtle Mountain Band of Deshnod, Sheilah A., University of of North Dakota, Confederated Salish Chippewa Indians of North Dakota Oklahoma Health Sciences Center, & Kootenai Tribes of the Flathead Croley, Amanda Jo, University of Navajo Tribe of AZ, NM, & UT Reservation, MT Oklahoma Health Sciences Center, Detmer, Sandra Joy, Modesto Junior Campbell, Jamie Renae, University of Cherokee Nation, Oklahoma College, Turtle Mountain Band of Oklahoma, Muskogee (Creek) Nation, Cromer, Kelly Jenise, Southwestern Chippewa Indians of North Dakota Oklahoma Oklahoma State University, Dineyazhe, Dawn Capri, Norther Carlson, Ingrid Marie, University of Cheyenne-Arapaho Tribes of Arizona Tribe of AZ, NM, & UT Washington Medex Northwest Oklahoma Dixon, Damon Brian, University of Program, Qagan Tayagungin Tribe of Culver-Blackbear, Jennifer Lyn, North Dakota, Hopi Tribe of AZ Sand Point Village Northeastern State University, Dixon, Missena Elizabeth, University of Carter, Jason Daniel, University of Cherokee Nation, Oklahoma Oklahoma, Seminole Nation of Oklahoma Health Sciences Center, Cummings, James Jackson, Oklahoma Cherokee Nation, Oklahoma Southwestern Oklahoma State Elder, Shirley-Anne, Northern Montana Cary, Brenda Lee, University of University, Cherokee Nation, College, Assiniboine & Sioux Tribes of Minnesota-Twin Cities Medical Oklahoma the Fort Peck Indian Reservation, MT School, Oneida Tribe of Wisconsin Edwards, Kerry Rachelle, University of Cavanaugh, Casey Lynne, Idaho State Cunningham-Hartwig, Roxie Kim, Oklahoma, Cherokee Nation, University, Shoshone-Paiute Tribes of University of Washington School of Oklahoma the Duck Valley Reservation, NV Medicine, Nez Perce of Idaho Charles, Tracey Roseann, University of Curley, Florinda, Grand Canyo College, Edwards, Ralph Casey, University of Tennessee-Memphis, Choctaw Nation Navajo Tribe of AZ, NM & UT Oklahoma Health Sciences Center, of Oklahoma Dailey, Samuel, University of Alabama- Cherokee Nation, Oklahoma Chastain, Brian Gene, East Central Birmingham, Navajo Tribe of AZ, NM Elliott, Billy Wayne, Northern Arizona University, Muskogee (Creek) Nation, & UT University, Wyandotte Tribe of Oklahoma Chatter, Teddy Duke, Daughterty, Jamie Suzette, University of Oklahoma University of Arizona College of Oklahoma Health Sciences Center, Ellis, Scott Anthony, Oklahoma City, Medicine, Navajo Tribe of AZ, NM, & Cherokee Nation, Oklahoma University, Cherokee Nation, UT Davis, Allison Kay, University of North Oklahoma Chavez, Leann Ahkeebah, University of Dakota, Crow Creek Sioux Tribe of the Emerson, Janice Odette, University of New Mexico-Alburquerque, Navajo Crow Creek Reservation, SD Oklahoma Health Sciences Center, Tribe of AZ, NM, & UT Davis, Amber Lynn, University of Kiowa Indian Tribe of Oklahoma Chee, Darlene Begay, Northern Arizona Oklahoma, Muskogee (Creek) Nation, Eriacho, Margaret Alisha, University of University, Navajo Tribe of AZ, NM, Oklahoma New Mexico-Albuquerque, Zuni Tribe & UT Davis, Cheron Lea, University of North of the Zuni Reservation, NM Childless, Michelle Josett, University of Dakota, Turtle Mountain Band of Esalio, Stacy Gwen, University of New Central Oklahoma, Seminole Nation Chippewa Indians of North Dakota Mexico-Albuquerque, Zuni Tribe of of Oklahoma Davis, Jason Russell, Lane Community the Zuni Reservation, NM Chimoni, Reinette J., University of New College, Chickasaw Nation, Oklahoma Evans-Kipp, Crystal Rose, University of Mexico-Gallup, Zuni Tribe of the Dawes, Kari Elaine, University of Iowa, North Dakota, Blackfeet Tribe of the Zuni Reservation, NM Cherokee Nation, Oklahoma Blackfeet Indian Reservation of MT Clark, Dorrance Dean, University of Dean, Erica Rae, Oklahoma State Fayer, Kayleen Coupchiak, University of Michigan, Assiniboine & Sioux Tribes University, Choctaw Nation of Alaska, Traditional Village of Togiak of the Fort Peck Indian Reservation, Oklahoma Fingerlin-Goodman, Nancy Ellen, MT Decoteau, Chrystal Dawn, Rocky University of Olahoma, Chickasaw Clark, Kari Rose, Mesa Community Mountain College, Blackfeet Tribe of Nation, Oklahoma College, Navajo Tribe of AZ, NM, & the Blackfeet Indian Reservation of Fisher, Joe Keith, University of New UT MT Mexico, Choctaw Nation of Oklahoma Cole, Jennifer Lyn, University of Decoteau, Michelle Germaine, Minot Fleming, Stephani Rose, University of Oklahoma, Choctaw Nation of State University, Turtle Mountain Wyoming, Turtle Mountain Band of Oklahoma Band of Chippewa Indians of North Cippewa Indians of North Dakota Collins, Aaron Bradley, Oklahoma Dakota Fragua, Kari Lynn, University of New Baptist University, Citizen Dele, Lessina, Midwestern University, Mexico-Albuquerque, Pueblo of Potawatomi Nation, Oklahoma Navajo Tribe of AZ, NM, & UT Jemez, NM Cook, Ellen Maxine, University of Delgado, Jamael Theresa, Northern Francis, Kaydee Ann, University of New Vermont, St. Regis Band of Mohawk Arizona University, Navajo Tribe of Mexico-Gallup, Navajo Tribe of AZ, Indians of New York AZ NM, & UT NM, & UT VerDate 11 Francis, Molly Marie, Creighton Gratz, Addie Beth, University of Henry, Liza Jo, University of North University, Confederated Tribes of the Oklahoma Health Sciences Center, Dakota, Turtle Mountain Band of Colville Reservation, WA Chickasaw Nation, Oklahoma Chippewa Indians of North Dakota Franklin, Richard Arnold, Northeastern Gary, Cori Ann, University of Oklahoma Henson-Meigs, Amy Jo, University of State University, Cherokee Nation, Health Sciences Center, Osage Tribe, Tulsa, Cherokee Nation, Oklahoma Oklahoma Oklahoma Henson-Sammuels, Andrea Jean, Frazier, Sonya Robin, East Central Gray, Jason Charles, University of Northeastern Oklahoma State Oklahoma State University, Oklahoma Health Sciences Center, University, Cherokee Nation, Chickasaw Nation, Oklahoma Choctaw Nation of Oklahoma Oklahoma Fred, Alana Renee, University of Gray, Jennifer Anne, University of Hernandez, Eveylyn Leone, Walla Walla Arizona, Navajo Tribe of AZ, NM, & Oklahoma Health Sciences Center, College, Confederated Salish & UT, Osage Tribe, Oklahoma Kootenai Tribes of the Flathead Fredy, Jefferson, University of New Griffith, Kimberly Dawn, Grand Canyon Reservation, MT University, Tohono O’odham Nation Mexico College of Pharmacy, Navajo Hewlett, Lori, Araphao Community of Arizona Tribe of AZ, NM, & UT College, Navajo Tribe of AZ, NM, & Guin, Heather Elaine, University of Freeman, Michael Scott, University of UT Tulsa, Muskogee (Creek) Nation, Hick, Carrie, University of New Mexico the Health Sciences College of Oklahoma College of Pharmacy, Navajo, Tribe of Osteopathic Medicine, Cherokee, Gust, Kateri Lyn, Montana State AZ, NM, & UT Nation, Olahoma University School of Nursing, Crow Hisaw, Tasha Leann, University of Freeman, Ryan Matthew, University of Tribe of Montana Oklahoma Health Sciences Center Oklahoma Health Sciences Center, Hagerty, Kori Lynn, University of New Chickasaw Nation, Oklahoma Muskogee (Creek) Nation, Oklahoma Mexico-Albuquerque, Blackfeet Tribe Holland, Toni Jean, Montana State Frigerio, Sonya Renee, University of of the Blackfeet Indian Reservations of University-Billings, Fort Belknap New Mexico-Gallup, Choctaw Nation MT Indian Community of the Fort of Oklahoma Hall, Brian Patrick, University of Belknap Reservation of Montana Fryear Carrie Marie, Southwestern Montana, Blackfeet Tribe of the Holman, Colin Justin, University of Oklahoma State University, Blackfeet Indian Reservation of MT Oklahoma, Chickasaw Nation, Chickasaw Nation, Oklahoma Hall, Megan Sue, Northeastern State Oklahoma Gaddy, Jasmine Reanna, Temple University, Choctaw Nation of Holmes, Michael Sterling, East Central University School of Medicine, Oklahoma Oklahoma State University Cheyenne- Navajo Tribe of AZ, NM, & UT Hall, Raquel Ellen, University of Arapaho Tribes of Oklahoma Gamble, Wanda, Northern Arizona California-Davis, Coastal Bank of the Honaberger, David Anthony, University University, Navajo Tribe of AZ, NM, Chumash Nation of Puget Sound, Pueblo of San Juan, & UT Harjo, Rebecca Ruth, University of NM Garness, Mary, University of Wisconsin- Southern California School of Social Hoover, Jamie Ellen, Arizona School of Superior, Bad River Band of the Lake Work, Muskogee (Creek) Nation, Health Sciences, Chemehuevi Indian Superior Tribe of Chippewa Indians Oklahoma Tribe of the Chemehuevi Reservation, of the Bad River Reservation, WI Harnage, Julie Ann, University of Cental California Garza, Jolanda Evelyn, East Central Oklahoma, Cherokee Nation, Horse, Lorena Dawn, University of Utah Oklahoma State University, Pueblo of Oklahoma School of Social Work, Confederated Jenez, NM Harris, Elizabeth Kate, Oklahoma State Tribes of the Goshute Reservation, NV George, Margie Ann, Northland Pioneer University College of Osteopathic and UT College, Hopi Tribe of AZ Medicine, Cherokee Nation, Houston, Lindsay Nicole, Bacone Gerry, Jon Michael, Stanford University, Oklahoma College, Cherokee Nation, Oklahoma Cheyenne River Sioux Tribe of the Harrison, Geniel, University of North Howeya, Lori Ann, University of New Cheyenne River Reservation, SD Dakota, Confederated Tribes of the Mexico, Pueblo of Acoma, NM Gerry, Ryan Richard, MacAlester Goshute Reservation, NV and UT Howling Wolf, William L., University of Haukass, Nicole Marie, Creighton College, Cheyenne River Sioux Tribe North Dakota, Three Affiliated Tribes University College of Nursing, of the Cheyenne River Reservation, of the Ft. Berthold Reservation, ND Rosebud Sioux Tribe of the Rosebud SD Huber, Donna Marie, University of Indian Reservation, SD Phoenix, Rosebud Sioux Tribe of the Glasses, Devin Garrick, University of Hawkins, Amy Delah, Tulane University Arizona, Navajo Tribe of AZ, NM, & Rosebud Indian Reservation, SD Health Sciences Center, Muskogee Huerth, Benjamin Walter, University of UT (Creek) Nation, Oklahoma Maine, Winnebago Tribe of Nebraska Glock, Jacquelyn, Southwest Missouri Hayes-Coons, Jennifer, Lynn, Har-Bor Hulse, Hailey Vonn, Truman State State University, Choctaw Nation of Jones School of Nursing, Cherokee University, Osage Tribe, Oklahoma Oklahoma Nation, Oklahoma Hunt, Matthew Hensdale, North Gloshay, Jr., Eddie, University of Hearod, Karen Elaine, University of Carolina State University, Lumbee Arizona, White Mountain Apache Oklahoma School of Social Work, Hyatt, Jacqueline Rooke, University of Tribe of the Ft. Apache Reservation, Choctaw Nation of Oklahoma Oklahoma, Muskogee (Creek) Nation, AZ, Wichita and Affilated Tribes Henderson, Traci Nicole, University of Oklahoma (Wichita, Keechi, Waco & Tawakonie), Great Falls, Chippewa-Cree Inidians Hyden, Andreana Dee, Grand Canyon OK of the Rocky Boy’s Reservation, MT College, Navajo Tribe of AZ, NM, & Goldtooth, Renee Ryan, University of Henio, Regina, University of New UT Arizona College of Medicine, Navajo Mexico-Gallup, Navajo, Tribe of AZ, Imperial, Jessica Ladonna, Coconino Tribe of AZ, NM, & UT NM, & UT County Community College, Navajo Goodman Gayla Beth, University of Henry, Abraham John, Augsburg Tribe of AZ, NM, & UT Maryland School of Medicine, College, Turtle Mountain Band of Ingram, Sonya Lynn, Connors State Kickapoo Tribe of Oklahoma Chippewa Indians of North Dakota College, Cherokee Nation, Oklahoma VerDate 11 Interpreter, Christina Lynn, Northern Kelley Ralph Zane, University Health Lee, Lori C., North Arizona University, Arizona University, Hopi Tribe of AZ Sciences College of Osteopathic Navajo Tribe of AZ, NM, & UT Ivanoff, Nora Rose, University of Medicine, Cherokee Nation, Lee, Marjorie Mae, Dine´ College, Navajo Washington, Eskimo Oklahoma Tribe of AZ. NM, & UT James, Jessica Natasha, Northern Kelliher, Allison Miranda, University of Leemhuis, Stephanie Brook, University Arizona University, Navajo Tribe of Washington School of Medicine, of Oklahoma Health Sciences Center, AZ, NM, & UT Nome Eskimo Community Cherokee Nation, Oklahoma Jefferson, Natalie Ruth, University of Kennedy, Jamie Sue University of Lessert, Amanda Kaye, Creighton Kansas School of Social Welfare, Montana, Blackfeet Tribe of the University, Oglala Sioux Tribe of the Choctaw Nation of Oklahoma Blackfeet Indian Reservation of MT Pine Ridge Reservation, SD Jensen, Janelle Blake, University of Kenneth Lena Mae, Arizona State Lewis, Erik Clay, Salish-Kootenai Arizona, Navajo Tribe of AZ, NM, & University, Navajo Tribe of AZ, NM, Community College, Confederated UT & UT Salish & Kootenai Tribes of the Jensen, Vanessa, University of Arizona Kinlecheenie, Orlinda Lou, Northland Flathead Reservation, MT College of Medicine, Navajo Tribe of Pioneer College, Navajo Tribe of AZ, Lewis, Rusty Oswald, University of AZ, NM, & UT NM, & UT North Dakota, Spirit Lake Tribe, ND Johnson, Jason Ray, University of North Kinney, Sahar Amelia, Tufts University, Lincoln, Kelly Michelle, Boston College, Dakota, Cherokee Nation, Oklahoma Turtle Mountain Band of Chippewa Navajo Tribe of AZ, NM, & UT Johnson, Kevin Lee, Weber State Indians of North Dakota Long Lorenda T., University of New University, Navajo Tribe of AZ, NM, Kipp, Barbara Malia, Salish Kootenai Mexico-Albuquerque, Navajo Tribe of & UT Community College, Blackfeet Tribe AZ, NM, & UT Johnson, Roxanne Marie, University of of the Blackfeet Indian Reservation of Long, Melanie, New Mexico State North Dakota, Turtle Mountain Band MT University, Navajo Tribe of AZ, NM, of Chippewa Indians of North Dakota Kirk, John Vincent, Oklahoma State & UT Johnson, Tara Lee, Northern Arizona University College of Osteophatic Long, Piper Lynn, University of Tulsa, University, Navajo Tribe of AZ, NM, Medicine, Cherokee Nation, Osage Tribe, Oklahoma & UT Oklahoma Long, Terri Leigh, Excelsior College, Joice, Kelly A., University of Oklahoma, Kitto, Laurie Dale, Strayer University, Cheyenne-Arapaho Tribes of Cherokee Nation, Oklahoma Choctaw Nation of Oklahoma Oklahoma Joines, John Clifford, University of Krulish, Arliss Mary, University of Longbrake, Guy Brady, Black Hills State Oklahoma Health Sciences Center, North Dakota, Spirit Lake Tribe, ND University, Cheyenne River Sioux Choctaw Nation of Oklahoma Krulish, Arlene Marie, University of Tribe of the Cheyenne River Jones, Bernadine Rose, Northern North Dakota, Spirit Lake Tribe, ND Reservation, SD Arizona University, Navajo Tribe of Lamere, Jennifer Jo, University of Longie, Michelle Renee, University of AZ, NM, & UT Oklahoma Health Sciences Center, North Dakota, Turtle Mountain Band Jones, Christopher Lee, Univesity of Winnebago Tribe of Nebraska of Chippewa Indians of North Dakota Landers, Joseph Henry, East Central North Dakota, Cherokee Nation, Looney, Joshua Carson, University of University, Muskogee (Creek) Nation, Oklahoma Oklahoma, Cherokee Nation, Oklahoma Jones, Generosa Diane, Drake University Oklahoma Lansing, Letitia Bianca, University of College of Pharmacy, Choctaw Nation Lopez-Martin, Tanya Elizabeth, New Mexico-Albuquerque, Navajo of Oklahoma University of Kansas School of Social Tribe of AZ, NM & UT Jones, Julia M., Northern Arizona Large, Stephanie Ashley, University of Welfare, Pueblo of Pojoaque, NM University, Navajo Tribe of AZ, NM, Oklahoma School of Social work, Lowe, Loretta, University of New & UT Muskogee (Creek) Nation, Oklahoma Mexico-Gallup, Navajo Tribe of AZ, Jones, Myles Randall, University of Large, Dinah Mae, San Juan College, NM, & UT Nebraska College of Medicine, Navajo Tribe of AZ, NM, & UT Lucke, Bobbi, Montana State University, Choctaw Nation of Oklahoma Laurence, Stacie, University of New Blackfeet Tribe of the Blackfeet Indian Jordan, Michael James, Washington Mexico, Navajo Tribe of AZ, NM, & Reservation of MT State University, Confederated Tribes UT Luebke, Jeneile Marie, University of of the Colville Reservation, WA Laurence-Leslie, Faith Hope, Arizona Wisconsin-Madison, Bad River Band Julian, Serena Yazzie, University of New State University, Navajo Tribe of AZ, of the Lake Superior Tribe of Mexico College of Pharmacy, Navajo NM, & UT Chippewa Indians of the Bad River Tribe of AZ, NM, & UT Lawhorn, William Andrew, University Reservation, WI Juneau, Rose Ann, Salish-Kootenai of Oklahoma Health Sciences Center, Mahooty, Stephanie Juliet, Arizona Community College, Fort Belknap Cherokee Nation, Oklahoma State University, Zuni Tribe of the Indian Community of the Fort Lawrence, Gary Lynn, Carl Albert State Zuni Reservation, NM Belknap Reservation of Montana College, Choctaw Nation of Oklahoma Malaterre, Jessica Kim, University of Kanawite, Freida Mae, Albuquerque Lawrence, Heather L., University of North Dakota, Turtle Mountain Band Tech-Voc Institute, Navajo Tribe of North Dakota, Spirit Lake Tribe ND of Chippewa Indians of North Dakota AZ, NM, & UT Lay Pamela Christine, Yakima Valley Mallon, Nicole Elizabeth, Springfield Kanuho, Verdell, Northern Arizona Community College, Muskogee College, Cherokee Nation, Oklahoma University, Navajo Tribe of AZ, NM, (Creek) Nation, Oklahoma Mariano, Karoline Shirley, Northern & UT LeBeau, Michael Edward, University of Arizona University, Navajo Tribe of Kardonsky, Kimberly Jay, Medical North Dakota, Cheyenne River Sioux AZ, NM, & UT College of Wisconsin, Jamestown Tribe of the Cheyenne River Martin, Candelaria Cynthia, University S’Klallam Tribe of Washington Reservation, SD of North Dakota, Navajo Tribe of AZ, Kelley, Harlan Hunt, Southern Illinois Lee, Calbert Aaron, University of New NM, &UT University School of Medicine, Mexico-Albuquerque, Navajo Tribe of Martine, Cynthia Ann, University of Cherokee Nation, Oklahoma. AZ, NM, & UT North Dakota, Jicarilla Apache Tribe VerDate 11 of the Jicarilla Apache Indian Montoya, Danny Dave, University of Band; Mille Lacs Band; White Earth Reservation, NM Alaska School of Nursing, Navajo Band) Martinez, Marie Jeannette, Weber State Tribe of AZ, NM, & UT Norton, Elizabeth Marie, Eastern Oregon University, Navajo Tribe of AZ, NM, Moore, Jennifer Marie, University of University, Confederated Tribes of the & UT Mason, Laquita Joy, University New Mexico-Albuquerque, Navajo Siletz Reservation, OR of Montana State School of Pharmacy, Tribe of AZ, NM & UT Okleasik, Sara A., Pacific University, Three Affiliated Tribes of the Ft. Moore, Mark Wilburn, University of Nome Eskimo Community Berthold Reservation, ND Texas SW Medical Center-Dallas, Olic, Latona Michelle, University of Mathis, Trina C., University of New Cherokee Nation, Oklahoma Wyoming School of Pharmacy, Oglala Mexico-Albuquerque, Navajo Tribe of Morgan, Collandra Karen, Northern Sioux Tribe of the Pine Ridge AZ, NM, & UT Arizona University, Navajo Tribe of Reservation, SD Matt, Georgia Lee, University of Utah, AZ, NM, & UT Olson, Jeremy Christ, University of Blackfeet Tribe of the Blackfeet Indian Morris, Elizabeth Lynette, University of North Dakota, Minnesota Chippewa Reservation of MT Oklahoma Health Sciences Center, Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Maxon, Jeff Allen, North Dakota State Muskogee (Creek) Nation, Oklahoma Lake); Fond du Lac Band; Grand University, Cheyenne River Sioux Morrison, Gerlinde Maria, University of Portage Band; Leech Lake Band; Mille Tribe of the Cheyenne River Montana, Crow Tribe of Montana Mousseau, Francine Louise, Lacs Band; White Earth Band) Reservation, SD O’Neal, Jamie Diane, Northern State McCarthy, Vincent Paul, Cameron University of North Dakota, Oglala Sioux Tribe of the Pine Ridge University, Cheyenne River Sioux University, Comanche Indian Tribe, Tribe of the Cheyenne River OK Reservation, SD Murphy, Tamelot Lynne, University of Reservation, SD McCuistion, Robin Edward, Western Orosco, Mary A., Antioch College, Washington University, Aleut, AK New Mexico-Albuquerque, Navajo Tribe of AZ, NM, & UT Mescalero Apache Tribe of the McGhee, Julie Lynette, University of Mescalero Reservation, New Mexico Oklahoma Health Sciences Center, Murray, Ais Kerry William, University of Colorado, Shoshone Tribe of the Ortiz, Lisa Dianne, Wayne State Poarch Band of Creek Indians of University School of Medicine, Alabama Wind River Reservation, Wyoming Muskett, Eunice Annazbah, University Cherokee Nation, Oklahoma McGilbary, Kristie Rae, Seminole State Owens, Johnie Louis, Kirksville College of New Mexico-Albuquerque, Navajo College, Kiowa Indian Tribe of of Osteopathic Medicine, Choctaw Oklahoma Tribe of AZ, NM, & UT Naasz, Katrina Hillary, University of Nation of Oklahoma McGillis, Jessica Therese, Minot State Pack, Bruce Anthony, University of Colorado, Navajo Tribe of AZ, NM, & College, Turtle Mountain Band of Louisiana-Monroe, Cherokee Nation, UT Namingha, Emergy, Albuquerque Chippewa Indians of North Dakota Oklahoma Tech-Voc Institute, Zuni Tribe of the McGlothin, Travis Michael, Harvard Palacol, Christie Kahikuonalani, Zuni Reservation, NM Medical School, Pueblo of Laguna, University of Oklahoma, Comanche Needham, Laura L., Shoreline NM Indian Tribe, OK Community College, Aleut, AK Palm, Toby James, Pacific University McKerry, Jason Amel, Grand Canyon Nelson, Shannon Lynn, University of College, Navajo Tribe of AZ, NM, & College, Cherokee Nation, Oklahoma New Mexico, Navajo Tribe of AZ, NM, Paniagua, Calvin Frederick, Arizona UT & UT McLain, Stefanie Jeanne, Oklahoma School of Health Sciences, Little Nephew-Kennedy, Lesley Ellen, SUNY Traverse Bay Bands of Odawa Indians State University, Cherokee Nation, at Buffalo School of Social Work, Oklahoma of Michigan Seneca Nation of New York Pappan, Cynthia Rae, Creighton McLaughlin, Audrey Jane, Central Nez, Lula, New Mexico Highlands Oregon Community College, Yurok University School of Pharmacy, Turtle University, Navajo Tribe of AZ, NM, Mountain Band of Chippewa Indians Tribe of the Yurok Reservation, & UT California of North Dakota Nicholson, Kasey Joseph, Montana State Parisien-Marion, Shannon Ronette, Menz, Dore Lee, Pacific University, University, Fort Belknap Indian University of North Dakota, Turtle Assiniboine & Sioux Tribes of the Fort Community of the Fort Belknap Mountain Band of Chippewa Indians Peck Indian Reservation, MT Reservation of Montana of North Dakota Merchant, Nicole Dawn, Montana State Nidiffer-Shelor, Amber Lynn, University Parker, Andrienne, Arizona State Universty School of Nursing, Crow of Oklahoma, Cherokee Nation, University, Navajo Tribe of AZ, NM, Tribe of Montana Oklahoma & UT Miles, Mary Kristen, Northern Nimsey, Dallas Micah, St. Gregory’s Pearce, Judy Lynn, University of Oklahoma College, Osage Tribe, College, Kiowa Indian Tribe of Oklahoma Health Sciences Center, Oklahoma Oklahoma Seminole Nation of Oklahoma Milford, Ginalori, University of New Nioce, Paul Anthony, Washburn Peltier, Aleta Jeanne, University of Mexico-Gallup, Navajo Tribe of AZ, University, Citizen Potawatomi North Dakota, Turtle Mountain Band NM, & UT Nation, Oklahoma of Chippewa Indians of North Dakota Mitchell, Jessica Delphine, University of Noisy Hawk, Lynelle Nancy, University Peltier, Crystal Gayle, University of New Mexico-Gallup, Navajo Tribe of of South Dakota School of Medicine, North Dakota, Turtle Mountain Band AZ, NM, & UT Oglala Sioux Tribe of the Pine Ridge of Chippewa Indians of North Dakota Momberg, Christina Ann, Salish- Reservation, SD Penn, Tamara Leigh, University of New Kootenai Community College, Northbird, Stephanie Mae, United Mexico-Albuquerque, Navajo Tribe of Blackfeet Tribe of the Blackfeet Indian Tribes Technical College, Minnesota AZ, NM, & UT Reservation of MT Chippewa Tribe, Minnesota (Six Peone, Amanda Lee, Salish-Kootenai Montano, Alicia Dawn, University of component reservations: Bois Forte Community College, Confederated Arizona-Tucson, Navajo Tribe of AZ, Band (Nett Lake); Fond du Lac Band; Salish & Kootenai Tribes of the NM, & UT Grand Portage Band; Leech Lake Flathead Reservation, MT VerDate 11 Perdue, Mark Wayne, University of Rouse, Brant Philip, University of Albuquerque, Navajo Tribe of AZ, Oklahoma, Cherokee Nation, Oklahoma, Cherokee Nation, NM, & UT Oklahoma Oklahoma Silvers, Kristin Gail, University of New Peterson-Lewis, Annie May, Rose State Rucker, Jennifer Ann, University of Mexico-Gallup, Navajo Tribe of AZ, College, Aleut, AK Oklahoma Health Sciences Center, NM, & UT Pewenofkit, Rowena Jolene, University Cherokee Nation, Oklahoma Simmons, Jeremiah David, Stanford of Central Oklahoma, Kiowa Indian Ruleford, Miranda Louisa, University of University, Yankton Sioux Tribe of Tribe of Oklahoma Tulsa, Cherokee Nation, Oklahoma South Dakota Phillips, Crystal Lea, University of Russell, Candice Dawn, University of Sirmans, Jayna Deneice, University of Oklahoma, Cherokee Nation, Missouri-Kansas City, Cherokee Houston College of Optometry, Oklahoma Nation, Oklahoma Choctaw Nation of Oklahoma Phillips, Starla Jean, Bacone College, Rutman, Kristi Arlene, University of Skan, Eric Christopher, Washington Cherokee Nation, Oklahoma Anchorage, Central Council of the State University College of Pharmacy, Pleasants, Tina Marie, Spokane Falls Tlingit & Haida Indian Tribes Ketchikan Indian Corporation Community College, Central Council Saltclah, Waleste Maria, University of Skippergosh, Brenda Teller, Pima of the Tlingit & Haida Indian Tribes New Mexico-Albuquerque, Navajo Medical Institute, Menominee Indian Poolaw, Audrew Winnie, Southwestern Tribe of AZ, NM, & UT Tribe of Wisconsin Oklahoma State University, Sandoval, Racheal Michele, Arizona Sloan, Rick Michael Wesley, University Comanche Indian Tribe, OK State University, Navajo Tribe of AZ, of Colorado, Cherokee Nation, Quan, Zellisha Alexis, University of NM, & UT Oklahoma New Mexico-Albuquerque, Zuni Tribe Scalpcane-Moore, Lavonne Jean, Salish- Smith, Dallas Rockford, Grand Canyon of the Zuni Reservation, NM Kootenai Community College, College, Navajo Tribe of AZ, NM, & Quilt, Lucille Arlene, North Seattle Northern Cheyenne Tribe of the UT Community College, Quinault Tribe of Northern Cheyenne Indian Smith, Phyllis Marie, Salish-Kootenai the Quinault Reservation, WA Reservation, MT Community College, Fort Belknap Quoshena, Tanya Cojomana, University Schmidt, Erin Michele, Oklahoma State Indian Community of the Fort of Phoenix, Hope Trie of AZ University, Muskogee (Creek) Nation, Belknap Reservation of Montana Radney-Veinote, Ruth W., University of Oklahoma Spotted Horse, Patricia Jean, American the Pacific, Comanche Indian Tribe, Schroeder, Dawn Marie, University of University, Standing Rock Sioux OK North Dakota, Turtle Mountain Band Tribe of N. & S. Dakota Spurlock, Cory Stephen, University of Red Elk, Linsey Beth, Arizona State of Chippewa Indians of North Dakota University, Assiniboine & Sioux Scott, Brian Edward, University of Oklahoma Health Sciences Center, Tribes of the Fort Peck Indian Tulsa, Cherokee Nation, Oklahoma Citizen Potawatomi Nation, Oklahoma St. Claire, Billie Jo, North Dakota State Reservation, MT Scott, Jessica Robin, University of University, Turtle Mountain Band of Redsteer, Sandra Jeanette, Northern Washington, Central Council of the Chippewa Indians of North Dakota Arizona University, Navajo Tribe of Tlingit & Haida Indian Tribes St. Claire, Rhea Neachet, University of AZ, NM, & UT Scott, Steven Ray, Southwestern North Dakota, Turtle Mountain Band Reed, Stephanie Levern, University of Oklahoma State University, Cherokee of Chippewa Indians of North Dakota Central Oklahoma, Cherokee Nation, Nation, Oklahoma Stewart, Daryl Lee, University of New Oklahoma Seaton, Evelyn J. Crank, New Mexico Mexico-Gallup, Navajo Tribe of AZ, Renfrow, Miranda Kirstin, Northeastern Highland University, Navajo Tribe of NM, & UT State University, Choctaw Nation of AZ, NM, & UT Stour, Lana Dawn, Oklahoma State Oklahoma Seyler, Debra Jean, Northland Pioneer University, Cherokee Nation, Reynolds, Joel Wayne, University of College, Confederated Salish & Oklahoma South Dakota, Rosebud Sioux Tribe of Kootenai Tribes of the Flathead Strobbe, Vonne Kay, University of New the Rosebud Indian Reservation, SD Reservation, MT Mexico-Albuquerque, Assiniboine & Rhynes, Lisa Ann, University of Shane, Allison Doreen, South Dakota Sioux Tribes of the Fort Peck Indian Oklahoma Health Sciences Center, State University, Alaska Native Reservation, MT Muskogee (Creek) Nation, Oklahoma Shangreau-Pilcher, Rhiannon Brook, Stuck, Andrew Timothy Lewis, Riley, Gail Arlene, Albuquerque Tech- South Dakota State University, Oglala University of Arizona, Navajo Tribe of Voc Institute, Pueblo of Nambe, NM Sioux Tribe of the Pine Ridge AZ, NM, & UT Robinson, Charlene, University of Reservation, SD Stump-King, Glynna Marie, University Arizona College of Medicine, Navajo Shepard, Cristopher Allan Joseph, of New Mexico-Gallup, Chippewa Tribe of AZ, NM, & UT Pomona College, Santee Sioux Tribe Cree Indians of the Rocky Boy’s Robison-Rivera, Kristie Marie, of the Santee Reservation of Nebraska Reservation, MT Southwestern Oklahoma State Sherwood, David William, University of Summerlin, Allen William, University University, Apache Tribe of Oklahoma, Eastern Shawnee Tribe of of the Pacific, Cherokee Nation, Oklahoma Oklahoma Oklahoma Robnett, Randall Clifton, Southern Shields, Deborah, East Central Sun Rhodes, Neil Altair, Oregon Health Nazarene University, Cherokee Oklahoma State University, Prairie Sciences University, Arapahoe Tribe Nation, Oklahoma Ban of Potawantomi Indians, Kansas of the Wind River Reservation, Rogers, Brandon Scott, Northeastern Shinn-Jones, Darcy Marie, Northeastern Wyoming State University, Cherokee Nation, State University, Cherokee Nation, Sweeney, Michael Aaron, Brigham Oklahoma Oklahoma Young University, Choctaw Nation of Rogers, Shawn Thomas, University of Shirley, Lenora Jean, University of New Oklahoma Oklahoma, Cherokee Nation, Mexico-Albuquerque, Navajo Tribe of Swensen, Eric Carl, University of North Oklahoma AZ, NM, & UT Dakota, Aleut, AK Ross, Cindy Lee, Arizona State Shunkamolah, William Henry, Taylor, Jennifer Elise, Eastern Oregon University, Hope Tribe of AZ University of New Mexico- State College, Pit River Tribe, VerDate 11 California (includes Big Bend, Tsingine, Georgia Lynn, University of Whited, Stephanie Lynn, University of Lookout, Montgomery Creek & Arizona College of Medicine, Navajo Southern Mississippi, Nenana Native Roaring Creek Rancherias & XL Tribe of AZ, NM, & UT Association Ranch) Tso, Shawmarie, Pueblo Community Whitehair, Jennifer June, University of Teasyatwho, Arlene Jean, Northern College, Navajo Tribe of AZ, NM, & North Dakota, Navajo Tribe of AZ, Arizona University, Navajo Tribe of UT NM, & UT AZ, NM, & UT Tunnell, Kimberly Renee, Oklahoma Whitehair, Rosalita Marie, University of Teller, Pamela, Arizona State State University, Kiowa Indian Tribe New Mexico-Albuquerque, Navajo University, Narraagansett Indian Tribe of Oklahoma Tribe of AZ, NM, & UT of Rhode Island Turney, Jarett Brandon, San Francisco Wilcox, Amelia Mae, University of Teller, Terry Lee, University of New State University, Cherokee Nation, Phoenix, Navajo Tribe of AZ, NM, & Mexico-Albuquerque, Navajo Tribe of Oklahoma UT AZ, NM, & UT Upshaw, Juliana, Northern Arizona Wilkerson, Thaddus Donavan, Tempel, Dollie Luna, Montana State University, Navajo Tribe of AZ, NM, University of New Mexico- University School of Nursing, Navajo & UT Albuquerque, Navajo Tribe of AZ, Tribe of AZ, NM, & UT Uttchin, Venus, University of NM, & UT Tenequer, Valerie Leigh, Gateway Oklahoma, Muskogee (Creek) Nation, Willcuts, Peggy Sue, South Dakota State Community College, Navajo Tribe of OK University, Rosebud Sioux Tribe of AZ, NM, & UT Vaile, Marnie Lynn, Montana State the Rosebud Indian Reservation, SD Thomas, Jacob Frederick, Concordia University, Blackfeet Tribe of the Willeto, Virginia, University of New College, Turtle Mountain Band of Blackfeet Indian Reservation of MT Mexico-Gallup, Navajo Tribe of AZ, Chippewa Indians of North Dakota Valdo, Gerald David, Colorado State NM, & UT Thomason-Chavez, Felecia Elena, University, Pueblo of Acoma, NM Williams, Alice, Coconino County University of New Mexico- Vallie-Merriefield, Pamela Lynn, Community College, Navajo Tribe of Albuquerque, Navajo Tribe of AZ, University of North Dakota, Turtle AZ, NM, & UT NM, & UT Mountain Band of Chippewa Indians Williams, Rhonda Lynette, University of Thompson, Benjamin Campbell, of North Dakota New Mexico-Albuquerque, Navajo Northeastern State University, Vargas, Raquel Ann, University of Texas Tribe of AZ, NM, & UT Cherokee Nation, Oklahoma Medical Branch-Galveston, Choctaw Willman, Peggy Ann, University of Thompson, Karen Lynn, Arizona State Nation of Oklahoma Alaska, Native Village of Ambler University, Navajo Tribe of AZ, NM, Walker, Jonathan Bayless, Oklahoma Wilson, Dena Lynn, University of & UT Christian College, Choctaw Nation of Washington School of Medicine, Thompson, Paula Gail, Grand Canyon Oklahoma Oglala Sioux Tribe of the Pine Ridge College, Navajo Tribe of AZ, NM, & Wallace, Kacey Leann, Oklahoma State Reservation, SD UT University College of Osteopathic Wilson, Ladonna Jean, Eastern Thompson-Lookingback, Bret R., Medicine, Choctaw Nation of Oklahoma State College, Cherokee University of Minnesota-Duluth, Oklahoma Nation, Oklahoma Minnesota Chippewa Tribe, Walton, Amber Nicole, Washington Wilson, Mackenzie Paulette, University Minnesota (Six component University, Navajo Tribe of AZ, NM, of Arizona College of Pharmacy, reservations; Bois Forte Band (Nett & UT Navajo Tribe of AZ, NM, & UT Lake); Fond du Lac Band; Grand Waquie, Monica Janet, New Mexico Wood, Chad Nathaniel, University of Portage Band; Leech Lake Band; Mille Highlands University, Pueblo of Utah College of Medicine, Cherokee Lacs Band; White Earth Band) Jemez, NM Nation, Oklahoma Tobacco, Romaine Leigh, Oglala Lakota Wartz, Kaye Ellen, Northern Arizona Woodin, Angeline Elizabeth, Grand College, Oglala Sioux Tribe of the University, Navajo Tribe of AZ, NM, Valley State Univ., Little Traverse Bay Pine Ridge Reservation, SD & UT Bands of Odawa Indians of Michigan Topsky, Elizabeth Marie, University of Watford, Velma Jean, Pima Community Woodruff, Patience M., University of Washington School of Medicine, College, Navajo Tribe of AZ, NM, & North Dakota, Rosebud Sioux Tribe of Chippewa-Cree Indians of the Rocky UT the Rosebud Indian Reservation, SD Boy’s Reservation, MT Watson, Matthew Mendioro, Columbia Work, Hugh Edward, University of Torralba, Vernon Charles, United Tribes University College of Physicians & Oklahoma Health Sciences Center, Technical College, Crow Tribe of Surgeons, Ottawa Tribe of Oklahoma Choctaw Nation of Oklahoma Montana Wells, Elmer Bruce, North Dakota State Wright, Christy Marie, Arizona State Torres, Michelle Lynn, Heritage College, University, Three Affiliated Tribes of University, Nenana Native Chippewa-Cree Indians of the Rocky the Ft. Berthold Reservation, ND Association Boy’s Reservation, MT Weston-Traversie, Marnie Lee, Nevada Yandell, Seth David, University of Toya, Tirzah Marie, University of New College of Pharmacy, Cheyenne River Texas Medical Branch-Galveston, Mexico-Albuquerque, Pueblo of Sioux Tribe of the Cheyenne River Choctaw Nation of Oklahoma Laguna, NM Reservation, SD Yazzie, Abiegail B., New Mexico Treas, Theresa Wileen, New Mexico White, Richard Kalvin, University of Highlands University, Navajo Tribe of State University, Mescalero Apache Utah, Navajo Tribe of AZ, NM, & UT AZ, NM, & UT Tribe of the Mescalero Reservation, White, Ruth Ellen, Northern Arizona Yazzie, Charisse Lindsey, Arizona State NM University, Navajo Tribe of AZ, NM, University, Navajo Tribe of AZ, NM, Tsethlikai, Tami-Denice, Albuquerque & UT & UT Tech-Voc Institute, Zuni Tribe of the White, Sidney John, Marquette Yazzie, Irene, Weber State University, Zuni Reservation, NM University, Oneida Tribe of Navajo Tribe of AZ, NM, & UT Tsethlikia, Nina Marie, University of Wisconsin Yazzie, Kelly Colleen Gateway Phoenix, Zuni Tribe of the Zuni White, Tammy Jean, University of Community College, Navajo Tribe of Reservation, NM Buffalo, Seneca Nation of New York AZ, NM, & UT VerDate 11 Yazzie, Maria, University of New Chippewa-Creek Indians of the Rocky ACTION: Notice of Funding Availability. Mexico-Albuquerque, Navajo Tribe of Boy’s Reservation, MT AZ, NM, & UT FOR FURTHER INFORMATION CONTACT: The SUMMARY: The Substance Abuse and Yazzie, Nazhone Paul, University of Indian Health Service Scholarship Mental Health Services Administration Arizona College of Medicine, Navajo Branch, Twinbrook Metro Plaza, 12300, (SAMHSA) Center for Mental Health Tribe of AZ, NM, & UT Twinbrook Parkway, Suite 100, Services (CMHS) announces the Yazzie, Sharon, Northern Arizona Rockville, Maryland 20852, Telephone: availability of FY 2002 funds for grants University, Navajo Tribe of AZ, NM, (301) 443–6197, Fax: (301) 443–6048. for the following activity. This notice is & UT Dated: April 16, 2002. not a complete description of the Yazzie, Timothy, Midwestern Michael H. Trujillo, activity; potential applicants must University, Navajo Tribe of AZ, NM, Assistant Surgeon General, Director, Indian obtain a copy of the Guidance for & UT Health Service. Applicants (GFA), including Part I, Yazzie-Francisco, Myra Lynn, Phoenix [FR Doc. 02–9867 Filed 4–22–02; 8:45 am] Targeted Capacity Expansion: Meeting College, Navajo Tribe of AZ, NM, & BILLING CODE 4160–16–M the Mental Health Services Needs of UT Older Adults, and Part II, General Yoe, Carolyn Mae, Weber State Policies and Procedures Applicable to University, Navajo Tribe of AZ, NM, DEPARTMENT OF HEALTH AND all SAMHSA Applications for & UT HUMAN SERVICES Discretionary Grants and Cooperative Young, Sawar Chalutch, University of Agreements, before preparing and Washington, Yurok Tribe of the Yurok Substance Abuse and Mental Health submitting an application. Reservation, California Services Administration Zahne, Janis Ivy, Arizona State Fiscal Year (FY) 2002 Funding University, Navajo Tribe of AZ, NM, Opportunities & UT Zwaryck, Shelby Leona, University of AGENCY: Substance Abuse and Mental Montana School of Pharmacy, Health Services Administration, DHHS. Est. funds Est. no. of Project Activity Application deadline FY 2001 awards period Targeted Capacity Expansion: Meeting the Mental Health Service Needs May 31, 2002 ...... $5,000,000 10 3 years. of Older Adults. The actual amount available for the When requesting an application kit, that will help support prevention, early award may vary, depending on the applicant must specify the particular intervention, and treatment services unanticipated program requirements activity for which detailed information having a strong evidence base. and the number and quality of is desired. All information necessary to Group I Awards applications received. FY 2002 funds for apply, including where to submit the activity discussed in this applications and application deadline Targeted Capacity Expansion Awards announcement were appropriated by the instructions, are included in the for Meeting the Mental Health Service Congress under Public Law No. 106– application kit. Needs of Older Adults. Up to nine 310. SAMHSA’s policies and awards are anticipated for Targeted Purpose procedures for peer review and Capacity Expansion grants to help Advisory Council review of grant and The Substance Abuse and Mental communities provide direct services cooperative agreement applications Health Services Administration’s and to build the necessary infrastructure were published in the Federal Register (SAMHSA’s), Center for Mental Health to support this expanded service (Vol. 58, No. 126) on July 2, 1993. Services (CMHS), announces the provision for serving the diverse mental availability of Fiscal Year 2002 funds for health needs of older persons. General Instructions increasing service capacity for older Group II Award Applicants must use application form persons with priority mental health PHS 5161–1 (Rev. 7/00). The needs. Grants or cooperative agreements Targeted Capacity Expansion Award application kit contains the two-part are made as part of SAMSHSA/CMHS’’ for National Technical Assistance application materials (complete ‘‘Targeted Capacity Expansion’’ (TCE) Center for the Mental Health Needs of programmatic guidance and instructions Program. The program title is Mental Older Adults. One award is anticipated for preparing and submitting Health Services for Older Adults. for a National Technical Assistance applications), the PHS 5161–1 which The purpose of this initiative is to Center focused on the growing diverse includes Standard Form 424 (Face increase the capacity of cities, counties, mental health needs of older adults. Page), and other documentation and and tribal governments and not-for- This national resource center will forms. Application kits may be obtained profit direct service providers to provide engage in activities to synthesize and from: Knowledge Exchange Network, intervention, early intervention, and disseminate the knowledge base for P.O. Box 42490, Washington, DC 20015. treatment services to meet emerging and mental health outreach, prevention, 800–789–2647. urgent mental health needs of older early intervention, assessment and The PHS 5161–1 application form and persons. In tandem with the direct treatment services for older persons. the full text of the activity are also provision of services the program Eligibility available electronically via SAMHSA’s provides resources for communities to World Wide Web home page: http:// build and/or expand the local and Eligibility to apply for Group I www.samhsa.gov. regional service system infrastructure Awards will be limited to cities, VerDate 11 counties, and tribal governments and Hudak, Officer, Division of Grants requirements of Executive Order 12372, their agencies, and to not-for-profit Management, Substance Abuse and as implemented through DHHS direct service providers. Eligibility to Mental Health Services Administration, regulations at 45 CFR part 100. E.O. apply for Group II Award includes all Rockwall II, Room 630, 5515 Security 12372 sets up a system for State and entities eligible for Group I Awards with Lane, Rockville, MD 20852. (301) 443– local government review of applications the addition of private or public 9666. E-Mail: [email protected]. for Federal financial assistance. universities. Interested parties who do Applicants (other than Federally Public Health System Reporting not meet these criteria, including faith- recognized Indian tribal governments) Requirements based organizations, are encouraged to should contact the State’s Single Point partner with an agency or organization The Public Health System Impact of Contact (SPOC) as early as possible to that is eligible to apply as the lead Statement (PHSIS) is intended to keep alert them to the prospective agency. state and local health officials apprized application(s) and to receive any of proposed health services grant and Availability of Funds necessary instructions on the State’s cooperative agreement applications review process. For proposed projects It is estimated that a total of $5 submitted by community-based serving more than one State, the million will be available to support the nongovernmental organizations within applicant is advised to contact the SPOC program under this GFA in FY 2002. their jurisdictions. of each affected State. A current listing Actual funding levels will depend on Community-based nongovernmental of SPOCs is included in the application the availability of funds. $3.6 million service providers who are not guidance materials. The SPOC should will be dedicated for Group I Awards. transmitting their applications through send any State review process No more than $400,000 in total costs the State must submit a PHSIS to the recommendations directly to: Division (direct and indirect) will be awarded per head(s) of the appropriate State and of Extramural Activities, Policy, and grant per year. $1.4 million will be local health agencies in the area(s) to be Review, Substance Abuse and Mental dedicated for the Group II category. affected not later than the pertinent Health Services Administration, Annual awards will be made subject to receipt date for applications. This Parklawn Building, Room 17–89, 5600 the continued availability of funds and PHSIS consists of the following Fishers Lane, Rockville, Maryland progress achieved by awardees. information: 20857. Period of Support a. A copy of the face page of the The due date for State review process application (Standard form 424). recommendations is no later than 60 Support may be requested for a period b. A summary of the project (PHSIS), of up to three years for Group I and days after the specified deadline date for not to exceed one page, which provides: the receipt of applications. SAMHSA Group II awards (in three budget periods (1) A description of the population to of one year each). does not guarantee to accommodate or be served. explain SPOC comments that are Criteria for Review and Funding (2) A summary of the services to be received after the 60-day cut-off. provided. General Review Criteria: Competing (3) A description of the coordination Dated: April 18, 2002. applications requesting funding under planned with the appropriate State or Richard Kopanda, this activity will be reviewed for local health agencies. Executive Officer, SAMHSA. technical merit in accordance with State and local governments and [FR Doc. 02–9951 Filed 4–22–02; 8:45 am] established PHS/SAMHSA peer review Indian Tribal Authority applicants are BILLING CODE 4162–20–P procedures. Review criteria that will be not subject to the Public Health System used by the peer review groups are Reporting Requirements. Application specified in the application guidance guidance materials will specify if a DEPARTMENT OF THE INTERIOR material. particular activity is subject to the Award Criteria for Scored Applications Public Health System Reporting Office of Indian Education Programs; Applications will be considered for Requirements. Proposed Agency Information Collection Activities; Comment funding on the basis of their overall PHS Non-Use of Tobacco Policy Request technical merit as determined through Statement the peer review group and the The PHS strongly encourages all grant AGENCY: Office of Indian Education appropriate National Advisory Council and contract recipients to provide a Programs, Interior. review process. Availability of funds smoke-free workplace and promote the ACTION: Notice of emergency clearance will also be an award criteria. and request for comments. Additional award criteria may be non-use of all tobacco products. In addition, Public Law 103–227, the Pro- included in the application guidance SUMMARY: In compliance with the materials. Children Act of 1994, prohibits smoking in certain facilities (or in some cases, Paperwork Reduction Act, this notice Catalog of Federal Domestic Assistance announces that the Bureau of Indian Number: 93.243. any portion of a facility) in which regular or routine education, library, Affairs received an emergency clearance Program Contact day care, health care, or early childhood from the Office of Management and For questions concerning program development services are provided to Budget for enrollment applications for issues, contact: Betsy McDonel Herr, children. This is consistent with the two Bureau-operated post secondary Ph.D., Social Science Analyst, Center for PHS mission to protect and advance the schools: Haskell Indian Nations Mental Health Services, SAMHSA, physical and mental health of the University and Southwestern Indian Room 11C–22, 5600 Fishers Lane, American people. Polytechnic Institute. We are now Rockville, MD 20857. (301) 594–2197. preparing a regular clearance and (301) 443–0541 (Fax). E-mail: Executive Order 12372 requesting comments on this [email protected]. Applications submitted in response to information collection. For questions regarding grants the FY 2002 activity listed above are DATES: Written comments must be management issues, contact: Steve subject to the intergovernmental review submitted on or before June 24, 2002. VerDate 11 ADDRESSES: You may hand deliver or needed to review instructions; to DEPARTMENT OF THE INTERIOR send your written comments to Kenneth develop, acquire, install and utilize Whitehorn, Department of the Interior, technology and systems for the purpose Fish and Wildlife Service Office of Indian Education Programs, of collecting, validating, and verifying Information Collections Submitted to Branch of Planning, MS Room 3512 information, processing and the Office of Management and Budget MIB, 1849 C Street, NW, Washington, maintaining information, and disclosing DC 20240. You may fax your written for Approval Under the Paperwork and providing information, to search Reduction Act comments to (202) 208–3312. data sources, to complete and review FOR FURTHER INFORMATION CONTACT: the collection of information; and to AGENCY: Fish and Wildlife Service, Kenneth Whitehorn, (202) 208–4976. transmit or otherwise disclose the Interior. SUPPLEMENTARY INFORMATION: This information. ACTION: Notice of information collection; notice is published in exercise of Comments submitted in response to request for comments. authority delegated to the Assistant this notice will be summarized and/or SUMMARY: The U.S. Fish and Wildlife Secretary—Indian Affairs under 25 included in the request for OMB U.S.C. 2 and 9 and 209 DM 8. Service (Service) has sent the collection approval of this information collection. of information described below to the I. Abstract They also will become a matter of Office of Management and Budget The Bureau of Indian Affairs (BIA) is public record. If you wish to have your (OMB) for approval under the providing the admission forms for name and/or address withheld, you provisions of the Paperwork Reduction Haskell Indian Nations University and must state this prominently at the Act of 1995. The public may obtain the Southwestern Indian Polytechnic beginning of your comments. We will copies of the specific information Institute for 60-day review and honor your request according to the collection requirements, related comment period. These admission requirements of the law. All comments guidelines and explanatory material by forms are useful in determining program from organizations or representatives contacting the Service Information eligibility of American Indian and will be available for review. We may Collection Clearance Officer at the Alaska Native students for educational withhold comments from review for address provided below. services. The form has been changed to other reasons. DATES: We will consider all comments include a Paperwork Reduction Act and All written comments will be received on or before June 24, 2002. Public Burden statements, a Privacy Act available for public inspection in Room OMB has up to 60 days to approve or statement, and an Effects of 3512 of the Main Interior Building, 1849 disapprove the information collection NonDisclosure statement. C Street, NW, Washington, DC, from but may respond after 30 days. These forms are utilized pursuant to 7:45 a.m. to 4:15 p.m. EST, Monday Therefore, to ensure maximum Blood Quantum Act, Public Law 99– through Friday, excluding legal consideration, you must send your 228; the Snyder Act, Chapter 115, holidays. comments to OMB by the above Public Law 67–85; and, the Indian referenced date. We will not request nor sponsor a Appropriations of the 48th Congress, ADDRESSES: Send your comments and Chapter 180, page 91, For Support of collection of information, and you need suggestions on the requirement to Schools, July 4, 1884. not respond to such a request, if there Rebecca A. Mullin, Service Information is no valid Office of Management and II. Request for Comments Collection Clearance Officer, U.S. Fish Budget Control Number. and Wildlife Service, MS 222—ARLSQ, The Department of the Interior invites III. Data 1849 C Street, NW, Washington, DC comments on: 20240. (a) Whether the collection of Title: Applications for Admission to information is necessary for the proper FOR FURTHER INFORMATION CONTACT: To Haskell Indian Nations University and performance of the functions of the receive a copy of the information to Southwestern Indian Polytechnic agency, including whether the collection request, explanatory Institute. information will have practical utility; information and related forms, contact (b) The accuracy of the agencies’ OMB approval number: 1076–0114. Rebecca A. Mullin at 703/358–2287, or estimate of the burden (including the Type of Review: Renewal. electronically to [email protected]. hours and cost) of the proposed SUPPLEMENTARY INFORMATION: The OMB Description: These eligibility collection of information, including the regulations at 5 CFR part 1320, which application forms are mandatory in validity of the methodology and implement provisions of the Paperwork assumption used; determining a student’s eligibility for Reduction Act of 1995 (Public Law 104– (c) Ways to enhance the quality, educational services. This collection is 13), require that interested members of utility, and clarity of the information to at no cost to the public. the public and affected agencies have an be collected; and Total Number of Respondents: 2,281. opportunity to comment on information (d) Ways to minimize the burden of Total Number of Annual responses: collection and recordkeeping activities the collection of information on those 3,943. (see 5 CFR 1320.8(d)). We are seeking a who are to respond, including through renewal of clearance from the OMB to the use of appropriate automated, Total Annual Burden hours: 2,214 collect information in conjunction with electronic, mechanical, or other hours. the Evaluation Grants Program to be collection techniques or other forms of Dated: April 12, 2002. conducted under the North American information technology. Neal A. McCaleb, Wetlands Conservation Act (NAWCA) Burden means the total time, effort, or (Public Law 101–233, as amended; Assistant Secretary—Indian Affairs. financial resources expended by persons December 13, 1989). The Act, Section 19 to generate, maintain, retain, or disclose [FR Doc. 02–9906 Filed 4–22–02; 8:45 am] (Assessment of Progress in Wetlands or provide information to or for a BILLING CODE 4310–TS–P Conservation), requires the Secretary of Federal agency. This includes the time the Interior, in cooperation with the VerDate 11 North American Wetlands Conservation Approval Number: 1018–0104. OMB project locations and other Council, to: ‘‘* * * 1) develop and approval was granted September 30, characteristics that will meet standards implement a strategy to assist in the 1999. established by the Council and implementation of this Act in Service Form Number(s): N/A. requirements of NAWCA. The conserving the full complement of Description and Use: The North Evaluation Grants Program will differ in North American wetlands systems and American Waterfowl Management Plan that it will be a two-stage process species dependent on those systems, (NAWMP), first signed in 1986, is a wherein successful applicants will have that incorporates information existing tripartite agreement among Canada, submitted both a pre-proposal and a on the date of the issuance of the Mexico and the United States to proposal. Pre-proposals are intended to strategy in final form on types of enhance, restore and otherwise protect allow screening such that only the wetlands habitats and species continental wetlands to benefit projects that have the greatest potential dependent on the habitats; and 2) waterfowl and other wetland associated for contributing to the evaluation develop and implement procedures to wildlife through partnerships between program will be continued into the monitor and evaluate the effectiveness and among the private and public proposal stage. The Council of wetlands conservation projects sectors. Because the 1986 NAWMP did Coordinator’s office currently publishes completed under this Act.’’ To meet this not carry with it a mechanism to and distributes Standard and Small provide for broadly-based and sustained requirement, we are continuing the Grants instructional booklets that assist financial support for wetland Evaluation Grants Program initiative applicants in formulating project conservation activities, Congress passed that requires selected prospective proposals for Council consideration. and the President signed into law the grantees to submit pre-proposals and The guidelines for the grants evaluation NAWCA to partially fill that funding proposals that are geared specifically to program, to be contained in the request need. The purpose of NAWCA is to use for proposal, is an additional project approaches that will readily partnerships to promote long-term provide data for monitoring and information collection instrument. The conservation of North American guidelines and instructions and other evaluation purposes. Current NAWCA wetland ecosystems and the waterfowl instruments, e.g., Federal Register projects do not, and cannot, provide the and other migratory birds, fish and notices on request for proposals, are the data and information necessary to meet wildlife that depend upon such habitat. basis for this information collection the monitoring and evaluation Principal conservation actions request for OMB clearance. Information requirements of Section 19. We have supported by NAWCA are acquisition, collected under this program is used to updated supporting evaluation grants enhancement and restoration of respond to such needs as: audits, guidelines, or instructions, that will wetlands and wetlands-associated program planning and management, provide the basis for information habitat. program evaluation, Government collection and this request. We also As well as providing for a continuing Performance and Results Act reporting, have available for review and comment and stable funding base, NAWCA Standard Form 424 (Application For the original ‘‘Strategy For Implementing establishes an administrative body made Federal Assistance), grant agreements, and Evaluating the Effectiveness of up of a State representative from each of budget reports and justifications, public Wetland Conservation Projects the four Flyways, three representatives and private requests for information, Completed Under the NAWCA’’ (Sect. from wetlands conservation data provided to other programs for 19, part 1) and the ‘‘NAWCA Evaluation organizations, the Secretary of the Board databases on similar programs, Grant Proposal Development and of the National Fish and Wildlife Congressional inquiries and reports Review’’ outline (Sect. 19, part 2). Both Foundation, and the Director of the required by NAWCA, etc. In the case of of these documents are approved by the Service. This administrative body, the the additional Evaluation Grants NAWCA Council and have been used to North American Wetlands Conservation Program guidelines, the request develop the guidelines. The Service is Council, is exempt from the Federal responds also to the statutory requesting a 3-year term of renewed Advisory Committee Act. The purpose requirements of the Act. approval for this information collection of the Council is to recommend In summary, information collection activity. An agency may not conduct or wetlands conservation project proposals under this program is required to obtain sponsor, and a person is not required to to the Migratory Bird Conservation a benefit, i.e., a cash reimbursable grant respond to, a collection of information Commission (MBCC) for funding, which that will be given competitively to unless it displays a currently valid OMB it does three times annually. selected applicants based on eligibility control number. Subsection (c) of Section 5 (Council and the relative value of their projects Procedures) provides that the ‘‘*** We invite your comments on: (1) to contribute to meaningful technical Council shall establish practices and Whether the collection of information is evaluation of the success of the grants procedures for the carrying out of its necessary for the proper performance of programs. The information collection is functions under subsections (a) and (b) subject to the Paperwork Reduction Act the functions of the agency, including of this section * * *,’’ which are requirements for such activity, which whether the information will have consideration of projects and includes soliciting comments from the practical utility; (2) the accuracy of the recommendations to the MBCC, general public regarding the nature and agency’s estimate of the burden of the respectively. The means by which the burden imposed by the collection. collection of information; (3) ways to Council decides which project Frequency of Collection: Occasional. enhance the quality, utility and clarity proposals are important to recommend We intend the Evaluation Grant Program of the information to be collected; and, to the MBCC is through grants programs to have one project proposal (4) ways to minimize the burden of the that are coordinated through the submissions window per year. collection of information on Council Coordinator’s office (Division of Description of Respondents: respondents. Bird Habitat Conservation) within the Households and/or individuals; Title: Information Collection In Service. business and/or other for-profit; not-for- Support of Grant Programs Authorized Applications from partnerships profit institutions; farms; Federal by the North American Wetlands competing for regular grant program Government; and State, local and/or Conservation Act of 1989 (NAWCA). funds must describe in substantial detail Tribal governments. VerDate 11 Estimated Completion Time: We e.g., permitting electronic submission of DEPARTMENT OF JUSTICE estimate the reporting burden, or time responses. involved in writing project submissions, Immigration and Naturalization Service Overview of This Information to be 8 hours for a pre-proposal and 40 Collection hours for a proposal. Agency Information Collection Activities: Extension of Existing Number of Respondents: We estimate (1) Type of Information Collections: Collection; Comment Request that 30 pre-proposals and 10 proposals Extension of a currently approved will be submitted each year for the collection. ACTION: 60-day notice of information grants evaluation program. (2) Title of the Form/Collection: ABC collection under review; alien address Dated: April 3, 2002. Change of Address Form and Special report card; form I–104. Rebecca Mullin, Filing Instructions for ABC Class The Department of Justice, Information Collection Officer, Fish and Members. Wildlife Service. Immigration and Naturalization Service (3) Agency form number, if any, and has submitted the following information [FR Doc. 02–9907 Filed 4–22–02; 8:45 am] the applicable component of the collection request for review and BILLING CODE 4310–55–P Department of Justice sponsoring the clearance in accordance with the collection: Forms I–855 and M–426. Paperwork Reduction Act of 1995. The Office of International Affairs, proposed information collection is DEPARTMENT OF JUSTICE Immigration and Naturalization Service. published to obtain comments from the (4) Affected public who will be asked public and affected agencies. Comments Immigration and Naturalization Service or required to respond, as well as a brief are encouraged and will be accepted for abstract: Primary: Individuals and sixty days until June 24, 2002. Agency Information Collection households. This form is mandated by Written comments and suggestions Activities: Extension of Existing the American Baptist Churches v. from the public and affected agencies Collection; Comment Request Thornbough, 760 F. Supp. 796 (N.D. concerning the proposed collection of Cal. 1991) and will be used by class information should address one or more ACTION: 60-day notice of information members to inform the INS of address of the following four points. collection under review; ABC change of changes. (1) Evaluate whether the proposed address form and special filing (5) An estimate of the total number of collection of information is necessary instructions for ABC class members; for the proper performance of the forms I–855 and M–426. respondents and the amount of time estimated for an average respondent to function of the agency, including The Department of Justice, respond: 5,000 responses at 30 minutes whether the information will have Immigration and Naturalization Service (.5) per response. practical utility; (2) Evaluate the accuracy of the has submitted the following information (6) An estimate of the total public agencies estimate of the burden of the collection request for review and burden (in hours) associated with the proposed collection of information, clearance in accordance with the collection: 2,500 annual burden hours. including the validity of the Paperwork Reduction Act of 1995. The If you have additional comments, proposed information collection is methodology and assumptions used; suggestions, or need a copy of the (3) Enhance the quality, utility, and published to obtain comments from the proposed information collection clarity of the information to be public and affected agencies. Comments instrument with instructions, or collected; and are encouraged and will be accepted for additional information, please contact (4) Minimize the burden of the sixty days until June 24, 2002. Richard A. Sloan 202–514–3291, collection of information on those who Written comments and suggestions Director, Regulations and Forms are to respond, including through the from the public and affected agencies Services Division, Immigration and use of appropriate automated, concerning the proposed collection of Naturalization Service, U.S. Department electronic, mechanical, or other information should address one or more of Justice, Room 4034, 425 I Street, NW., technological collection techniques or of the following four points: Washington, DC 20536. Additionally, other form of information technology, (1) Evaluate whether the proposed comments and/or suggestions regarding e.g., permitting electronic submission of collection of information is necessary the item(s) contained in this notice, responses. for the proper performance of the especially regarding the estimated functions of the agency, including public burden and associated response Overview of This Information whether the information will have time may also be directed to Mr. Collection practical utility; Richard A. Sloan. (1) Type of Information Collection: (2) Evaluate the accuracy of the If additional information is required Extension of a currently approved agencies estimate of the burden of the contact: Mr. Robert B. Briggs, Clearance collection. proposed collection of information, Officer, United States Department of (2) Title of the Form/Collection: Alien including the validity of the Justice, Information Management and Address Report Card. methodology and assumptions used; Security Staff, Justice Management (3) Agency form number, if any, and (3) Enhance the quality, utility, and Division, Patrick Henry Building, 601 D the applicable component of the clarity of the information to be Street, NW., Washington, DC 20530. Department of Justice sponsoring the collected; and collection: Form I–104. Adjudications (4) Minimize the burden of the Dated: April 16, 2002. Division, Immigration and collection of information on those who Richard A. Sloan, Naturalization Service. are to respond, including through the Department Clearance Officer, United States (4) Affected public who will be asked use of appropriate automated, Department of Justice, Immigration and or required to respond, as well as a brief electronic, mechanical, or other Naturalization Service. abstract: Primary: Individuals and technological collection techniques or [FR Doc. 02–9826 Filed 4–22–02; 8:45 am] households. The information on this other forms of information technology, BILLING CODE 4410–10–M form provides the Service with an VerDate 11 acceptable manner acquiring Written comments and suggestions the items(s) contained in this notice, information concerning the current from the public and affected agencies especially regarding the estimated addresses and other information from concerning the proposed collection of public burden and associated response certain classes or groups of aliens who information should address one or more time may also be directed to Mr. are within the United States. of the following four points: Richard A. Sloan. (5) An esimate of the total number of (1) Evaluate whether the proposed If additional information is required respondents and the amount of time collection of information is necessary contact: Mr. Robert B. Briggs, Clearance estimated for an average respondent to for the proper performance of the Officer, United States Department of respond: I responses at 5 minutes (.083) functions of the agency, including Justice, Information Management and per response. whether the information will have Security Staff, Justice Management (6) An estimate of the total public practical utility; Division, Patrick Henry Building, 601 D burden (in hours) associated with the (2) Evaluate the accuracy of the Street, NW., Suite 1600, Washington, collection: I annual burden hours. agencies estimate of the burden of the DC 20530. If you have additional comments, proposed collection of information, Dated: April 16, 2002. suggestions, or need a copy of the including the validity of the Richard A. Sloan, proposed information collection methodology and assumptions used; instrument with instructions, or (3) Enhance the quality, utility, and Department Clearance Officer, United States clarity of the information to be Department of Justice, Immigration and additional information, please contact Naturalization Service. Richard A. Sloan 202–514–3291, collected; and [FR Doc. 02–9822 Filed 4–22–02; 8:45 am] Director, Regulations and Forms (4) Minimize the burden of the Services Division, Immigration and collection of information on those who BILLING CODE 4410–10–M Naturalization Service, U.S. Department are to respond, including through the use of appropriate automated, of Justice, Room 4034, 425 I Street, NW., DEPARTMENT OF JUSTICE Washington, DC 20536. Additionally, electronic, mechanical, or other comments and/or suggestions regarding technological collection techniques or Immigration and Naturalization Service the item(s) contained in this notice, other forms of information technology, especially regarding the estimated e.g., permitting electronic submission of Agency Information Collection public burden and associated response responses. Activities: Comment Request time may also be directed to Mr. Overview of This Information ACTION: 60-day notice of information Richard A. Sloan. Collection: If additional information is required collection under review; petition by contact: Mr. Robert B. Briggs, Clearance (1) Type of Information Collection: entrepreneur to remove conditions; form Officer, United States Department of Extension of currently approved I–829. Justice, Information Management and collection. The Department of Justice, Security Staff, Justice Management (2) Title of the Form/Collection: Immigration and Naturalization Service Division, Patrick Henry Building, 601 D Guarantee of Payment. has submitted the following information Street, NW., Suite 1600, Washington, (3) Agency form number, if any, and collection request (ICR) for review and DC 20530. the applicable component of the Department of Justice sponsoring the clearance in accordance with the Dated: April 16, 2002. collection: Form I–510. Detention and Paperwork Reduction Act of 1995. The Richard A. Sloan, Deportation Division, Immigration and proposed information collection is Department Clearance Officer, United States Naturalization Service. published to obtain comments from the Department of Justice, Immigration and (4) Affected public who will be asked public and affected agencies. Comments Naturalization Service. or required to respond, as well as a brief are encouraged and will be accepted for [FR Doc. 02–9821 Filed 4–22–02; 8:45 am] abstract: Primary: Individuals and sixty days until June 24, 2002. BILLING CODE 4410–10–M Households. Form I–510 is executed Written comments and suggestions upon each arrival of an alien crewman from the public and affected agencies within the purview of Section 253 of the concerning the proposed collection of DEPARTMENT OF JUSTICE immigration and Nationality Act. information should address one or more (5) An estimate of the total number or of the following four points: Immigration and Naturalization Service respondents and amount of time (1) Evaluate whether the proposed Agency Information Collection estimated for an average respondent to collection of information is necessary Activities: Comment Request respond: 100 responses at 5 minutes for the proper performance of the (.083) per response. functions of the agency, including ACTION: 60–day notice of information (6) An estimate of the total public whether the information will have collection under review; guarantee of burden (in hours) associated with the practical utility; payment; form I–510 collection: 8 annual burden hours. (2) Evaluate the accuracy of the If you have additional comments, agencies estimate of the burden of the The Department of Justice, suggestions, or need a copy of the proposed collection of information, Immigration and Naturalization Service proposed information collection including the validity of the has submitted the following information instrument with instructions, or methodology and assumptions used; collection request for review and additional information, please contact (3) Enhance the quality, utility, and clearance in accordance with the Richard A. Sloan 202–514–3291, clarity of the information to be Paperwork Reduction Act of 1995. The Director, Regulations and Forms collected; and proposed information collection is Services Division, Immigration and (4) Minimize the burden of the published to obtain comments from the Naturalization Service, U.S. Department collection of information on those who public and afected agencies. Comments of Justice, Room 4034, 425 I Street, NW., are to respond, including through the are encouraged and will be accepted for Washington, DC 20536. Additionally, use of appropriate automated, sixty days until June 24, 2002. comments and/or suggestions regarding electronic, mechanical, or other VerDate 11 technological collection techniques or DEPARTMENT OF JUSTICE address in the Legalization Automated other forms of information technology, Database. The country, date of birth, and e.g., permitting electronic submission of Immigration and Naturalization Service registration number are elements responses. needed to identify specific applicants Agency Information Collection who have similar names and/or don’t Overview of This Information Activities: Proposed Collection; provide a A-number, registration Collection Comment Request number, or provide a wrong A-number. (1) Type of Information Collection: (5) an estimate of the total number of ACTION: 60-Day notice of information Extension of a currently approved collection under review; change of respondents and the amount of time information collection. address card; form I–697. estimated for an average respondent to (2) Title of the Form/Collection: respond: 200,000 responses at 5 minutes Petition by Entrepreneur to Remove The Department of Justice, (.083) per response. Conditions. Immigration and Naturalization Service (6) An estimate of the total public (3) Agency form number, if any, and has submitted the following information burden (in hours) associated with the the applicable component of the collection request for review and collection: 16,600 annual burden hours. Department of Justice sponsoring the clearance in accordance with the If you have additional comments, collection: Form I–829. Adjudications Papwerwork Reduction Act of 1995. The suggestions, or need a copy of the Division, Immigration and proposed information collection is proposed information collection Naturalization Service. published to obtain comments from the instrument with instructions, or (4) Affected public who will be asked public and affected agencies. Comments additional information, please contact or required to respond, as well as a brief are encouraged and will be accepted for Richard A. Sloan 202–514–3291, abstract: Primary: Individuals or sixty days until June 24, 2002. Director, Regulations and Forms households. This form is used by a Written comments and suggestions Services Division, Immigration and conditional resident alien entrepreneur from the public and affected agencies Naturalization Service, U.S. Department who obtained such status through a concerning the proposed collection of of Justice, Room 4304, 425 I Street, NW., qualifying investment, to apply to information should address one or more Washington, DC 20536. Additionally, remove conditions on his or her of the following four points: comments and/or suggestions regarding conditional residence. (1) Evaluate whether the proposed the item(s) contained in this notice, (5) An estimate of the total number of collection of information is necessary especially regarding the estimated respondents and the amount of time for the proper performance of the public burden and associated response estimated for an average respondent to functions of the agency, including time may also be directed to Mr. respond: 200 responses at 65 minutes whether the information will have Richard A. Sloan. (1.08) per response. practical utility; If additional information is required (6) An estimate of the total public (2) Evaluate the accuracy of the contact: Mr. Robert B. Briggs, Clearance burden (in hours) associated with the agencies estimated of the burden of the Officer, United States Department of collection: 216 annual burden hours. proposed collection of information, Justice, Information Management and If you have additional comments, including the validity of the Security Staff, Justice Management suggestions, or need a cop of the methodology and assumptions used; Division, Patrick Henry Building, 601 D proposed information collection (3) Enhance the quality, utility, and Street, NW., Suite 1600, Washington, instrument with instructions, or clarity of the information to be DC 20530. additional information, please contact collected; and Dated: April 16, 2000. Richard A. Sloan 202–514–3291, (4) Minimize the burden of the Richard A. Sloan, Director, Regulations and Forms collection of information on those who Services Division, Immigration and are to respond, including through the Department Clearance Officer, United States use of appropriate automated, Department of Justice, Immigration and Naturalization Service, U.S. Department Naturalization Service. of Justice, Room 4034, 425 I Street, NW., electronic, mechanical, or other [FR Doc. 02–9824 Filed 4–22–02; 8:45 am] Washington, DC 20536. Additionally, technological collection techniques or comments and/or suggestions regarding other forms of information technology, BILLING CODE 4410–10–M the item(s) contained in this notice, e.g., permitting electronic submission of responses. especially regarding the estimated DEPARTMENT OF JUSTICE public burden and associated response Overview of This Information time may also be directed to Mr. Collection Immigration and Naturalization Service Richard A. Sloan. If additional information is required (1) Type of Information Collection: Agency Information Collection contact: Mr. Robert B. Briggs, Clearance Extension of a currently approved Activities: Comment Request Officer, United States Department of collection. Justice, Information Management and (2) Title of the Form/Collection: ACTION: 60-day notice of information Security Staff, Justice Management Change of Address Card. collection under review; notice of Division, 601 D Street, NW., Patrick (3) Agency form number, if any, and naturalization oath ceremony; form N– Henry Building, Suite 1600, the applicable component of the 445. Washington, DC 20530. Department of Justice sponsoring the collection: Form I–697. adjudications The Department of Justice, Dated: April 16, 2002. Division, Immigration and Immigration and Naturalization Service Richard A. Sloan, Naturalization Service. has submitted the following information Department Clearance Officer, United States (4) Affected public who will be asked collection request for review and Department of Justice, Immigration and or required to respond, as well as a brief clearance in accordance with the Naturalization Service. abstract: Primary: Individuals or Paperwork Reduction Act of 1995. The [FR Doc. 02–9823 Filed 4–17–02; 8:45 am] households. The Service uses the proposed information collection is BILLING CODE 4410–10–M information to update an applicant’s published to obtain comments from the VerDate 11 public and affected agencies. Comments proposed information collection DEPARTMENT OF LABOR are encouraged and will be accepted for instrument with instructions, or sixty days until June 24, 2002. additional information, please contact Office of Federal Contract Compliance Written comments and suggestions Richard A. Sloan 202–514–3291. Programs from the public and affected agencies Director, Regulations and Forms concerning the proposed collection of Notice of Reinstatement of Associated Services Division, Immigration and Grocers, Inc. information should address one or more Naturalization Service, U.S. Department of the following four points: of Justice, Room 4304, 425 I Street, NW., AGENCY: Office of Federal Contract (1) Evaluate whether the proposed Washington, DC 20536. Additionally, Compliance Programs, Labor. collection of information is necessary comments and/or suggestions regarding ACTION: Notice of Reinstatement, for the proper performance of the the item(s) contained in this notice, Associated Grocers, Inc. functions of the agency, including especially regarding the estimated whether the information will have SUMMARY: This notice advises that public burden and associated response practical utility. Associated Grocers, Inc., has been (2) Evaluate the accuracy of the time may also be directed to Mr. reinstated as an eligible bidder on agencies estimate of the burden of the Richard A. Sloan. Federal contracts and subcontracts. For proposed collection of information, If additional information is required further information, contact Charles E. including the validity of the contact: Mr. Robert B. Briggs, Clearance James, Sr., Deputy Assistant Secretary methodology and assumptions used; Officer, United States Department of for Federal Contract Compliance (3) Enhance the quality, utility, and Justice, Information Management and Programs, U.S. Department of Labor, clarity of the information to be Security Staff, Justice Management 200 Constitution Avenue, NW., Room collected; and Division, Patrick Henry Building, 601 D C–3325, Washington, DC 20210 (202– (4) Minimize the burden of the Street, NW., Suite 1600, Washington, 693–0101). collection of information on those who DC 20530. SUPPLEMENTARY INFORMATION: are to respond, including through the Associated Grocers, Inc., Seattle, Dated: April 16, 2002. use of appropriate automated, Washington, is as of this date, reinstated electronic, mechanical, or other Richard A. Sloan, as an eligible bidder on Federal technological collection techniques or Department Clearance Officer, United States contracts and subcontracts. other forms of information technology, Department of Justice, Immigration and Signed: April 16, 2002, Washington, DC. e.g., permitting electronic submission of Naturalization Service. Charles E. James, Sr., responses. [FR Doc. 02–9825 Filed 4–22–02; 8:45 am] Deputy Assistant Secretary. Overview of This Information BILLING CODE 4410–10–M [FR Doc. 02–9919 Filed 4–22–02; 8:45 am] Collection BILLING CODE 4510–CM–M (1) Type of Information Collection: DEPARTMENT OF JUSTICE Extension of currently approved collection. National Institute of Corrections DEPARTMENT OF LABOR (2) Title of the Form/Collection: Notice of Naturalization Oath Advisory Board Meeting Occupational Safety and Health Ceremony. Administration (3) Agency form number, if any, and Time and Date: 8:30 a.m. to 4:30 p.m. [Docket No. ICR–1218–0196(2002)] the applicable component of the on Monday, June 3, 2002 & 8:30 a.m. to Department of Justice sponsoring the 12 noon on Tuesday, June 4, 2002. Longshoring and Marine Terminal collection: Form N–445. Adjudications Operations; Extension of the Office of Place: The Churchill Hotel, 1914 Division, Immigration and Management and Budget’s (OMB) Naturalization Service. Connecticut Avenue, NW., Washington, Approval of Information-Collection (4) Affected public who will be asked DC 20009. (Paperwork) Requirements or require to respond, as well as a brief Status: Open. AGENCY: Occupational Safety and Health abstract: Primary: Individuals or Matters to be Considered: Division households. The information furnished Administration (OSHA), Labor. reports: NIC Information Center on this form refers to events that may ACTION: Request for comment. presentation on state corrections agency have occurred since the applicant’s budget cuts in Fiscal Year 2002; SUMMARY: OSHA solicits comment initial interview and prior to the concerning its proposal to increase the administration of the oath of allegiance. discussion on Board members’ travel; existing burden-hour estimates for, and Several months may elapse between Quarterly Report by Office of Justice to extend OMB approval of, the these dates and the information that is Programs; and update on Interstate information-collection requirements of provided assists the officer to make and Compact activities. the Standard on Longshoring (29 CFR render an appropriate decision on the FOR MORE INFORMATION CONTACT: Larry part 1918) and Marine Terminal application. Solomon, Deputy Director, 202–307– Operations (29 CFR part 1917).1 The (5) An estimate of the total number of 3106, ext. 44254. respondents and the amount of time Standard contains requirements related estimated for an average respondent to Morris L. Thigpen, 1 Based on its assessment of the paperwork respond: 650,000 responses at 5 minutes Director. requirements contained in these Standards, the (.083) per response. [FR Doc. 02–9908 Filed 4–22–02; 8:45 am] Agency estimates that the total burden hours (6) An estimate of the total public increased compared to its previous burden-hour BILLING CODE 4410–36–M burden (in hours) associated with the estimate. Under this notice, OSHA is not proposing to revise these paperwork requirements in any collection: 53,950 annual burden hours. substantive manner, only to increase the burden If you have additional comments, hours imposed by the existing paperwork suggestions, or need a copy of the requirements. VerDate 11 to the testing, certification and marking II. Special Issues for Comment Signed at Washington, DC, on April 18, of specific types of cargo lifting 2002. appliances and associated cargo OSHA has a particular interest in John L. Henshaw, handling gear and other cargo handling comments on the following issues: Assistant Secretary of Labor. equipment such as conveyors and • Whether the proposed information- [FR Doc. 02–9922 Filed 4–22–02; 8:45 am] industrial trucks. collection requirements are necessary BILLING CODE 4510—26—M for the proper performance of the DATES: Submit written comments on or Agency’s functions, including whether before June 24, 2002. the information is useful; DEPARTMENT OF LABOR ADDRESSES: Submit written comments • The accuracy of OSHA’s estimate of to the Docket Office, Docket No. ICR– the burden (time and costs) of the Pension and Welfare Benefits 1218–0196(2002), OSHA, U.S. information-collection requirements, Administration Department of Labor, Room N–2625, including the validity of the 117th Full Meeting of the Advisory 200 Constitution Avenue, NW., methodology and assumptions used; Washington, DC 20210; telephone (202) Council on Employee Welfare and • The quality, utility, and clarity of 693–2350. Commenters may transmit Pension Benefits Plans the information collected; and written comments of 10 pages or less by • Pursuant to the authority contained in facsimile to (202) 693–1648. Ways to minimize the burden on section 512 of the Employee Retirement employers who must comply; for Income Security Act of 1974 (ERISA), 29 FOR FURTHER INFORMATION CONTACT: example, by using automated or other Theda Kenney, Directorate of Safety U.S.C. 1142, the 117th open meeting of technological information-collection the full Advisory Council on Employee Standards Programs, OSHA, U.S. and -transmission techniques. Department of Labor, Room N–3609, and Pension Benefit Plans will be held 200 Constitution Avenue, NW., III. Proposed Actions Thursday, May 9, 2002, in Room S– 2508, U.S. Department of Labor Washington, DC 20210; telephone (202) OSHA is proposing to increase the 693–2222. A copy of the Agency’s Building, 200 Constitution Avenue, NW, existing burden-hour estimate, and to Washington, DC 20210. Information-Collection Request (ICR) extend OMB approval of, the collection- supporting the need for the information The purpose of the meeting, which of-information requirements specified will begin at 2:00 p.m. and end at collections specified by the Standard on by the Standard on Longshoring and Longshoring and Marine Terminals is approximately 3:30 p.m., is to consider Marine Terminals. The Agency is the items listed below: available for inspection and copying in proposing to increase the current the Docket Office, or by requesting a I. Welcome and Introduction and Swearing In burden-hour estimate from 23,161 hours of New Council Members copy from Theda Kenney at (202) 693– to 36,100 hours, a total increase of 2222, or Todd Owen at (202) 693–2444. II. Report from the Assistant Secretary of 12,999 hours. This increase was a result Labor for the Pension and Welfare For electronic copies of the ICR, contact of identifying several miscalculations in Benefits Administration (PWBA) OSHA on the Internet at http:// the previous ICR. A. PWBA Priorities for 2002 www.osha.gov, and select ‘‘Information B. Announcement of Council Chair and Collection Requests.’’ Type of Review: Extension of a Vice Chair currently-approved information- III. Introduction of PWBA Senior Staff SUPPLEMENTARY INFORMATION: collection requirement. IV. Summary of the 2001 Final Reports Made I. Background Title: Longshoring (29 CFR part 1918) by Council Working Groups and Marine Terminal Operations (29 V. Determination of Topics to Be Addressed The Department of Labor, as part of its CFR part 1917). by Council Working Groups for 2002 continuing effort to reduce paperwork OMB Number: 1218–0196. Members of the public are encouraged and respondent (i.e., employer) burden, to file a written statement pertaining to Affected Public: Business or other for- conducts a preclearance consultation any topics the Council may wish to profit; Not-for-profit institutions; program to provide the public with an study for the year concerning ERISA by Federal government; State, local, or opportunity to comment on proposed submitting 20 copies on or before April tribal governments. and containing information-collection 28, 2002 to Sharon Morrissey, Executive requirements in accordance with the Number of Respondents: 748. Secretary, ERISA Advisory Council, Paperwork Reduction Act of 1995 Frequency of Recordkeeping: Varies U.S. Department of Labor, Suite N– (PRA–95) (44 U.S.C. 3506(c)(2)(A)). This (Initially; Annually; On occasion; 5677, 200 Constitution Avenue, NW, program ensures that information is in Monthly; Weekly). Washington, DC 20210. Individuals or the desired format, reporting burden representatives of organizations wishing (time and costs) is minimal, collection Average Time per Response: Varies from two minutes (.03 hour) to 8 hours. to address the Advisory Council should instruments are understandable, and forward their requests to the Executive Total Annual Hours Requested: OSHA’s estimate of the information- Secretary or telephone (202) 693–8668. 36,160. collection burden is correct. Oral presentations will be limited to ten The Standard contains a number of Total Annual Costs (O&M): $0. minutes, time permitting, but an collections of information which are IV. Authority and Signature extended statement may be submitted used by employers to ensure that for the record. Individuals with employees are informed properly about John L. Henshaw, Assistant Secretary disabilities, who need special the safety and health hazards associated of Labor for Occupational Safety and accomodations, should contact Sharon with marine terminal and longshoring Health, directed the preparation of this Morrissey by April 28 at the address operations. OSHA uses the records notice. The authority for this notice is indicated. developed in response to the collection the Paperwork Reduction Act of 1995 Organizations or individuals may also of information requirements to find out (44 U.S.C. 3506), and Secretary of submit statements for the record if the employer is complying adequately Labor’s Order No. 3–2000 (62 FR without testifying Twenty (20) copies of with the provisions of the standards. 50017). such statements should be sent to the VerDate 11 Executive Secretary of the Advisory NATIONAL CREDIT UNION in part. A Regional Director may revoke Council at the above address. Papers ADMINISTRATION a credit union’s RegFlex authority, in will be accepted and included in the whole or in part, by giving the credit record of the meeting if received on or Guidelines for the Supervisory Review union written notice of the Region’s before April 28, 2002. Committee substantive and documented safety and Signed at Washington, DC, this 18th day of AGENCY: National Credit Union soundness reasons. 12 CFR 742.6. The April, 2002. Administration (NCUA). RegFlex final rule provides that a credit Ann L. Combs, ACTION: Final Interpretive Ruling and union may appeal the Regional Director’s determination to the Assistant Secretary, Pension and Welfare Policy Statement 02–1, ‘‘Supervisory Benefits Administration. Review Committee’’ (IRPS 02–1). Committee. 12 CFR 742.7. This IRPS amends IRPS 95–1 by including RegFlex [FR Doc. 02–9920 Filed 4–22–02; 8:45 am] SUMMARY: This policy statement amends determinations in the list of material BILLING CODE 4510–29–M Interpretive Ruling and Policy supervisory determinations within the Statement (IRPS) 95–1 to add Regulatory Committee’s purview and the special Flexibility Program issues to the list of filing time frames adopted by the Board material supervisory determinations for RegFlex revocation appeals. NATIONAL AERONAUTICS AND that credit unions may appeal to In the RegFlex rule, the Board SPACE ADMINISTRATION NCUA’s Supervisory Review adopted slightly different filing time Committee. [Notice (02–052)] frames for RegFlex revocation appeals DATES: The IRPS is effective April 23, than those currently in IRPS 95–1. NASA Advisory Council, Space Flight 2002. Unlike the Regional Director’s decision Advisory Committee; Meeting ADDRESSES: National Credit Union to revoke RegFlex authority, the other Administration, 1775 Duke Street, material supervisory determinations AGENCY: National Aeronautics and Alexandria, VA 22314–3428. involve an intermediate review by the Space Administration (NASA). FOR FURTHER INFORMATION CONTACT: Region of a field examiner’s determination before appealing to the ACTION: Notice of meeting. Chrisanthy J. Loizos, Staff Attorney, at the above address, or telephone: (703) Committee. A credit union may appeal the Regional Director’s decision to SUMMARY: In accordance with the 518–6540. revoke RegFlex authority to the Federal Advisory Committee Act, Public SUPPLEMENTARY INFORMATION: Committee within 60 days from the date Law 92–463, as amended, the National A. Background of the determination. 12 CFR 742.7. Aeronautics and Space Administration announces a meeting of the NASA The NCUA Board (Board) adopted Under the RegFlex rule, the credit Advisory Council, Space Flight guidelines that, established an union may appeal the Committee’s Advisory Committee (SFAC). independent appellate process to review decision to the Board within 60 days material supervisory determinations, from the date the Committee issued the DATES: Friday, May 3, 2002 from 1:30 entitled ‘‘Supervisory Review decision. 12 CFR 742.7. This differs p.m. until 2:30 p.m. Committee’’ (IRPS 95–1). 60 FR 14795 from appeals of other material ADDRESSES: National Aeronautics and (March 20, 1995). IRPS 95–1 created a supervisory determinations because Space Administration, 300 E Street, Supervisory Review Committee either the credit union or the Region SW., Room MIC 7, Washington, DC (Committee) consisting of three senior may appeal to the Board within 30 days 20546. staff members to hear appeals of of receipt of the decision by the parties. material supervisory determinations. FOR FURTHER INFORMATION CONTACT: Mrs. IRPS 95–1 defined material supervisory Regulatory Procedures Susan Y. Edgington (Stacey), Code M, determinations to include Regulatory Flexibility Act National Aeronautics and Space determinations on composite CAMEL Administration, Washington, DC 20546, ratings of 3, 4 and 5, all component The Regulatory Flexibility Act 202/358–4519. ratings of those composite ratings, requires NCUA to prepare an analysis to significant loan classifications and SUPPLEMENTARY INFORMATION: The describe a significant economic impact adequacy of loan loss reserves. The meeting will be open to the public up agency rulemaking may have on a Board noted in the preamble to IRPS to seating capacity of the room. The substantial number of small credit 95–1, however, that it would consider agenda for the meeting is as follows: unions. For purposes of this analysis, expanding the disputes covered by the credit unions under $1 million in assets —Overview, status of the Office of Committee’s review process at a later are considered small credit unions. Space Flight programs. It is date. 60 FR 14795, 14796 (March 20, imperative that the meeting be held 1995). This final IRPS expands the types of on this date to accommodate the material supervisory determinations B. Regulatory Flexibility Program scheduling priorities of the key that credit unions may appeal to the Amendment participants. Visitors will be NCUA’s Supervisory Review requested to sign a visitor’s register. On November 15, 2001, the Board Committee. This final IRPS imposes no adopted a final rule that established the additional financial, regulatory or other Dated: April 17, 2002. Regulatory Flexibility Program burden on credit unions. NCUA has Sylvia K. Kraemer, (RegFlex). 66 FR 58656 (November 23, determined and certifies that this final Advisory Committee Management Officer, 2001). Under RegFlex, credit unions IRPS will not have a significant impact National Aeronautics and Space with advanced levels of net worth and on a substantial number of small credit Administration. consistently strong supervisory unions. Accordingly, NCUA has [FR Doc. 02–9838 Filed 4–22–02; 8:45 am] examination ratings are exempt from determined that a Regulatory Flexibility BILLING CODE 7510–01–P certain NCUA regulations, in whole or Analysis is not required. VerDate 11 Paperwork Reduction Act 1. Authority: Section 309 of the Riegle 2. The title of the information Community Development and Regulatory collection: NRC Form 536, ‘‘Operator NCUA has determined that this final Improvement Act of 1994, Public Law 103– Licensing Examination Data’’. IRPS does not increase paperwork 325. 3. The form number if applicable: requirements under the Paperwork 2. Amend the third paragraph in NRC Form 536. Reduction Act of 1995 and regulations subpart A to read as follows: 4. How often the collection is of the Office of Management and Material supervisory determinations required: Annually. Budget. are limited to: (1) Composite CAMEL 5. Who will be required or asked to ratings of 3, 4, and 5 and all component report: All holders of operating licenses Executive Order 13132 ratings of those composite ratings; (2) or construction permits for nuclear Executive Order 13132 encourages adequacy of loan loss reserve power reactors. independent regulatory agencies to provisions; (3) loan classifications on 6. An estimate of the number of consider the impact of their regulatory loans that are significant as determined responses: 80. actions on state and local interests. In by the appealing credit union; and (4) 7. The estimated number of annual adherence to fundamental federalism revocations of Regulatory Flexibility respondents: 80. principles, NCUA, an independent Program (RegFlex) authority. 8. An estimate of the total number of regulatory agency as defined in 44 3. Add a new paragraph in subpart A, hours needed annually to complete the requirement or request: 80. U.S.C. 3502(5), voluntarily complies after the sixth paragraph to read as 9. An indication of whether Section with the executive order. This final follows: 3507(d), Pub. L. 104–13 applies: N/A. IRPS applies to all credit unions that If a Regional Director revokes a credit union’s RegFlex authority, in whole or 10. Abstract: NRC is requesting appeal NCUA material supervisory renewal of its clearance to annually determinations before the NCUA in part, upon written notice to the credit union, the credit union may appeal the request all commercial power reactor Supervisory Committee, but does not licensees and applicants for an have substantial direct effect on the revocation to the Committee within 60 days from the date of the Region’s operating license to voluntarily send to states, on the relationship between the the NRC: (1) Their projected number of national government and the states, or determination. The RegFlex revocation is effective as soon as the credit union candidates for operator licensing initial on the distribution of power and examinations; (2) the estimated dates of responsibilities among the various receives the notice and it remains in effect pending a decision from the the examinations; (3) information on levels of government. NCUA has whether the examination will be facility determined that this final IRPS does not Committee. 4. Add the following sentence to the developed or NRC developed; and (4) constitute a policy that has federalism the estimated number of individuals implications for purposes of the last paragraph in subpart A: If a RegFlex revocation is the basis of that will participate in the Generic executive order. the appeal, the credit union may appeal Fundamentals Examination (GFE) for Assessment of Federal Regulations and the Committee’s decision to the NCUA that calendar year. Except for the GFE, Policies on Families Board within 60 days from the date the this information is used to plan budgets Committee issued its decision. and resources in regard to operator NCUA has determined that this final examination scheduling in order to meet IRPS will not affect family well-being [FR Doc. 02–9891 Filed 4–22–02; 8:45 am] the needs of the nuclear industry. within the meaning of Section 654 of BILLING CODE 7535–01–U A copy of the final supporting the Treasury and General Government statement may be viewed free of charge Appropriations Act, 1999, Pub. L. 105– at the NRC Public Document Room, One 277, 112 Stat. 2681 (1998). NUCLEAR REGULATORY White Flint North, 11555 Rockville COMMISSION Pike, Room O–1 F23, Rockville, MD Small Business Regulatory Enforcement 20852. OMB clearance requests are Fairness Act Agency Information Collection available at the NRC World Wide Web Activities: Submission for the Office of The Small Business Regulatory site: http://www.nrc.gov/public-involve/ Management and Budget (OMB) Enforcement Fairness Act of 1996 (Pub. doc-comment/omb/index.html. The Review; Comment Request L. 104–121) provides generally for document will be available on the NRC congressional review of agency rules. A AGENCY: Nuclear Regulatory home page site for 60 days after the reporting requirement is triggered in Commission. signature date of this notice. Comments and questions should be instances where NCUA issues a final ACTION: Notice of the OMB review of rule as defined by Section 551 of the directed to the OMB reviewer listed information collection and solicitation below by May 23, 2002. Comments APA. 5 U.S.C. 551. The Office of of public comment. Management and Budget has received after this date will be determined that this final IRPS is not a SUMMARY: The NRC has recently considered if it is practical to do so, but major rule for purposes of the Small submitted to OMB for review the assurance of consideration cannot be Business Regulatory Enforcement following proposal for the collection of given to comments received after this Fairness Act of 1996. information under the provisions of the date. Bryon Allen, Office of Information and By the National Credit Union Paperwork Reduction Act of 1995 (44 Administration Board on March 5, 2002. U.S.C. Chapter 35). The NRC hereby Regulatory Affairs (3150–0131), NEOB–10202, Office of Management Becky Baker, informs potential respondents that an and Budget, Washington, DC 20503. Secretary of the Board. agency may not conduct or sponsor, and that a person is not required to respond Comments can also be submitted by Accordingly, for the reasons set forth to, a collection of information unless it telephone at (202) 395–3087. in the preamble, IRPS 02–1 amends displays a currently valid OMB control The NRC Clearance Officer is Brenda IRPS 95–1 as follows: number. Jo. Shelton, 301–415–7233. Note: The following ruling will not appear 1. Type of submission, new, revision, Dated at Rockville, Maryland, this 17th day in the Code of Federal Regulations. or extension: Extension. of April 2002. VerDate 11 For the Nuclear Regulatory Commission. reactors pursuant to the provisions of 10 NUCLEAR REGULATORY Brenda Jo. Shelton, CFR parts 50 or 52. These reactors are COMMISSION NRC Clearance Officer, Office of the Chief required to be sited, designed, [Docket No. 030–29654, License No. 49– Information Officer. constructed, and maintained to 26861–01, EA–01–219] [FR Doc. 02–9886 Filed 4–22–02; 8:45 am] withstand geologic hazards, such as BILLING CODE 7590–01–P faulting, seismic hazards, and the In the Matter of Centennial Engineering maximum credible earthquake, to & Research, Inc., Sheridan, WY; Order protect the health and safety of the Imposing Civil Monetary Penalty NUCLEAR REGULATORY public and the environment. Non- I COMMISSION seismic siting criteria must also be Centennial Engineering & Research, Agency Information Collection evaluated. Non-seismic siting criteria include such factors as population Inc. (Licensee) is the holder of Materials Activities: Submission for the Office of License No. 49–26861–01 issued by the Management and Budget (OMB) density, the proximity of man-related hazards, and site atmospheric Nuclear Regulatory Commission (NRC Review; Comment Request or Commission) on January 22, 1987. dispersion characteristics. NRC uses the The last amendment, Amendment No. 3, AGENCY: Nuclear Regulatory information required by 10 CFR part 100 Commission (NRC). was issued June 8, 2001. The license to evaluate whether natural phenomena authorizes the Licensee to possess and ACTION: Notice of the OMB review of and potential man-made hazards will be use portable moisture/density gauges information collection and solicitation appropriately accounted for in the containing byproduct material in of public comment. design of nuclear power and test accordance with the conditions reactors. SUMMARY: The NRC has recently specified therein. submitted to OMB for review the A copy of the final supporting II following proposal for the collection of statement may be viewed free of charge information under the provisions of the at the NRC Public Document Room, One An inspection and investigation of the Paperwork Reduction Act of 1995 (44 White Flint North, 11555 Rockville Licensee’s activities were completed in U.S.C. Chapter 35). The NRC hereby Pike, Room O–1 F23, Rockville, MD September 2001. The results of the informs potential respondents that an 20852. OMB clearance requests are inspection and investigation indicated that the Licensee had not conducted its agency may not conduct or sponsor, and available at the NRC World Wide Web activities in full compliance with NRC that a person is not required to respond site: http://www.nrc.gov/public-involve/ to, a collection of information unless it requirements. A written Notice of doc-comment/omb/index.html. The Violation and Proposed Imposition of displays a currently valid OMB control document will be available on the NRC number. Civil Penalty (Notice) was served upon home page site for 60 days after the the Licensee by letter dated December 3, 1. Type of submission, new, revision, signature date of this notice. or extension: Revision. 2001. The Notice stated the nature of the 2. The title of the information Comments and questions should be violations, the provisions of the NRC’s collection: 10 CFR part 100, ‘‘Appendix directed to the OMB reviewer listed requirements that the Licensee had A, Seismic and Geologic Siting Criteria below by May 23, 2002. Comments violated, and the amount of the civil for Nuclear Power Plants’’. received after this date will be penalty proposed for the violations. The Licensee responded to the Notice 3. The form number if applicable: N/ considered if it is practical to do so, but in two letters dated December 26, 2001. A. assurance of consideration cannot be In its responses, the Licensee admitted 4. How often the collection is given to comments received after this the violations that were the basis for the required: As necessary in order for NRC date. civil penalty, but disagreed that there to assess the adequacy of proposed Bryon Allen, Office of Information and was any willfulness associated with the seismic design bases and the design Regulatory Affairs (3150–0093), violations and requested mitigation of bases for other geological hazards for NEOB–10202, Office of Management the civil penalty. nuclear power and test reactors and Budget, Washington, DC 20503. constructed and licensed in accordance III with 10 CFR parts 50 and 52 and the Comments can also be submitted by After consideration of the Licensee’s Atomic Energy Act of 1954, as amended. telephone at (202) 395–3087. responses and the statements of fact, 5. Who will be required or asked to The NRC Clearance Officer is Brenda explanation, and argument for report: Applicants and licensees for Jo. Shelton, 301–415–7233. mitigation contained therein, the NRC nuclear power and test reactors. staff has determined that violations Dated at Rockville, Maryland, this 17th day 6. An estimate of the number of cited in the Notice were willful, and of April 2002. responses: 3 (2 responses + 1 that the civil penalty proposed for the For the Nuclear Regulatory Commission. recordkeeper). violations should be imposed. 7. The estimated number of annual Brenda Jo. Shelton, respondents: 1. NRC Clearance Officer, Office of the Chief IV 8. An estimate of the total number of Information Officer. In view of the foregoing and pursuant hours needed annually to complete the [FR Doc. 02–9887 Filed 4–22–02; 8:45 am] to Section 234 of the Atomic Energy Act requirement or request: 9,000. BILLING CODE 7590–01–P of 1954, as amended (Act), 42 U.S.C. 9. An indication of whether Section 2282, and 10 CFR 2.205, It is hereby 3507(d), Pub. L. 104–13 applies: N/A. ordered that: 10. Abstract: 10 CFR part 100, The Licensee pay a civil penalty in the ‘‘Reactor Site Criteria,’’ establishes amount of $3,000 within 30 days of the date approval requirements for proposed of this Order, in accordance with NUREG/ sites for the purpose of constructing and BR–0254. In addition, at the time of making operating stationary power and testing the payment, the licensee shall submit a VerDate 11 statement indicating when and by what Centennial Engineering & Research, Inc., obtain an NRC license before taking method payment was made, to the Director, (CER or Licensee) responded to the Notice on possession of portable gauges containing Office of Enforcement, U.S. Nuclear December 26, 2001. The Licensee admitted byproduct material. However, we concluded Regulatory Commission, One White Flint Violations A and B, but denied that there was that the Roetech RSO’s failure to submit the North, 11555 Rockville Pike, Rockville, MD any willfulness associated with the violations amendment transferring the location of the 20852–2738. and requested mitigation of the civil penalty. gauging device and authorizing himself to The NRC’s evaluation and conclusion receive byproduct material was not willful V regarding the licensee’s response are as because the radiation safety officer for the The Licensee may request a hearing follows: company believed he could use the gauges within 30 days of the date of this Order. under CER’s license as long as he was Summary of Licensee’s Request for Mitigation completing jobs covered by a contractual Where good cause is shown, arrangement with CER. Following NRC’s consideration will be given to extending The Licensee provided three bases for mitigating the civil penalty in its December enforcement process, Roetech was issued a the time to request a hearing. A request 26, 2001 Answer to a Notice of Violation: Severity Level IV NOV for possession of for extension of time must be made in (1) The violations created no actual or radioactive material without a license. NRC’s writing to the Director, Office of potential safety consequences. The Licensee policy is to not assess a Civil Penalty for Enforcement, U.S. Nuclear Regulatory stated that the portable gauges were cared for violations cited a Severity Level IV. Commission, Washington, DC 20555, properly at all times, and that complying NRC Conclusion and include a statement of good cause with NRC regulations regarding the care of byproduct material and fully protecting the The NRC concludes that CER has not for the extension. A request for a provided a sufficient basis for mitigation of hearing should be clearly marked as a public interest is an extenuating circumstance. the proposed civil penalty. Consequently, the ‘‘Request for an Enforcement Hearing’’ proposed civil penalty in the amount of (2) The Licensee now believes that $3,000 should be imposed by Order. and shall be submitted to the Secretary, willfulness did not occur. The Licensee’s U.S. Nuclear Regulatory Enforcement radiation safety officer intended to submit [FR Doc. 02–9889 Filed 4–22–02; 8:45 am] Hearing’’ and shall be submitted to the the license amendments in a timely manner, BILLING CODE 7590–01–P Secretary, U.S. Nuclear Regulatory but was distracted by what he considered Commission, ATTN: Rulemakings and more pressing deadlines associated with his Adjudications Staff, Washington, DC other responsibilities. The Licensee’s NUCLEAR REGULATORY 20555. Copies also shall be sent to the radiation safety officer admitted to COMMISSION Director, Office of Enforcement, U.S. willfulness under ‘‘pointed questioning’’ by Nuclear Regulatory Commission, NRC investigators, and then that information Advisory Committee on Reactor was used against CER. Safeguards; Subcommittee Meeting on Washington, DC 20555, to the Assistant (3) The civil penalty was not applied General Counsel for Materials Litigation Planning and Procedures; Notice of consistently in that Roetech, LLC, also Meeting and Enforcement at the same address, should be fined based on an equal level of and to the Regional Administrator, NRC knowledge regarding amendment submittal The ACRS Subcommittee on Planning Region IV, 611 Ryan Plaza Drive, Suite requirements that did not occur on a timely and Procedures will hold a meeting on 400, Arlington, Texas 76011. basis. The Roetech Radiation Safety Officer May 1, 2002, Room T–2B1, 11545 If a hearing is requested, the (RSO) had primary responsibility to submit the amendment transferring the location of Rockville Pike, Rockville, Maryland. Commission will issue an Order The entire meeting will be open to designating the time and place of the the gauges and authorizing him to receive byproduct material. public attendance, with the exception of hearing. If the Licensee fails to request a portion that may be closed pursuant a hearing within 30 days of the date of NRC Evaluation of Licensee’s Request for to 5 U.S.C. 552b(c) (2) and (6) to discuss this Order (or if written approval of an Mitigation organizational and personnel matters extension of time in which to request a The NRC’s evaluation of the Licensee’s that relate solely to internal personnel hearing has not been granted), the three arguments follows: rules and practices of ACRS, and provisions of this Order shall be (1) The NRC acknowledged in its December information the release of which would 3, 2001 letter and Notice that the violations effective without further proceedings. If constitute a clearly unwarranted payment has not been made by that created no actual or potential safety consequences. This factor was taken into invasion of personal privacy. time, the matter may be referred to the account in determining the severity level of The agenda for the subject meeting Attorney General for collection. the violations. Absent willfulness, the shall be as follows: In the event the Licensee requests a violations would have been classified at Wednesday, May 1, 2002—1 p.m. until hearing as provided above, the issues to Severity Level IV, and no civil penalty would the conclusion of business be considered at such hearing shall be: have been considered. As our letter stated, The Subcommittee will discuss Whether on the basis of the violations willfulness resulted in these violations being proposed ACRS activities and related admitted by the Licensee, this Order classified as a Severity Level III problem. matters. The purpose of this meeting is should be sustained. (2) The NRC maintains its position that there was willfulness associated with the to gather information, analyze relevant Dated this 9th day of April, 2002. violations. We maintain our position because issues and facts, and formulate For the Nuclear Regulatory Commission. the radiation safety officer acknowledged that proposed positions and actions, as Frank J. Congel, he knew what was required, because he took appropriate, for deliberation by the full Director, Office of Enforcement. no action to comply until the NRC became Committee. involved, because he stated during his initial Oral statements may be presented by Appendix to Order Imposing Civil interviews and at the predecisional members of the public with the Penalty enforcement conference that cost was a factor concurrence of the Subcommittee in his procrastination (implying a conscious NRC Evaluation and Conclusion of Chairman; written statements will be decision to delay action), because his failure accepted and made available to the Licensee’s Request for Mitigation of Civil to take action to comply continued for Penalty several months, and because he was Committee. Electronic recordings will On December 3, 2001, a Notice of Violation reminded during this period that he was be permitted only during those portions and Proposed Imposition of Civil Penalty expected to take action to comply. of the meeting that are open to the (Notice) was issued for violations identified (3) The NRC took enforcement action public, and questions may be asked only during an NRC inspection and investigation. against Roetech, LLC, based on its failure to by members of the Subcommittee, its VerDate 11 consultants, and staff. Persons desiring Week of May 13, 2002—Tentative The NRC Commission Meeting to make oral statements should notify Schedule can be found on the Internet Thursday, May 16, 2002 the Designated Federal Official named at: www.nrc.gov/what-we-do/policy- below five days prior to the meeting, if 9:25 a.m. Affirmation Session (Public making/schedule.html. Meeting) (If needed) possible, so that appropriate * * * * * arrangements can be made. 9:30 a.m. Meeting with World Association of Nuclear Operators This notice is distributed by mail to Further information regarding topics (WANO) (Public Meeting) several hundred subscribers; if you no to be discussed, the scheduling of This meeting will be Webcast live at longer wish to receive it, or would like sessions open to the public, whether the the Web address—www.nrc.gov. to be added to the distribution, please meeting has been canceled or 2 p.m. Discussion of contact the Office of the Secretary, rescheduled, the Chairman’s ruling on Intragovernmental Issues (Closed—Ex. Washington, DC 20555 (301–415–1969). requests for the opportunity to present 9) In addition, distribution of this meeting oral statements, and the time allotted Week of May 20, 2002—Tentative notice over the Internet system is therefor can be obtained by contacting available. If you are interested in the Designated Federal Official, Sam There are no meetings scheduled for receiving this Commission meeting Duraiswamy (telephone: 301/415–7364) the Week of May 20, 2002. schedule electronically, please send an between 7:30 a.m. and 4:15 p.m. (EDT). Week of May 27, 2002—Tentative electric message to [email protected]. Persons planning to attend this meeting are urged to contact the above named Tuesday, May 28, 2002 Dated: April 18, 2002. individual one or two working days 9:30 a.m. Briefing on Nuclear Material David Louis Gamberoni, prior to the meeting to be advised of any Licensee Decommissioning and Technical Coordinator, Office of the changes in schedule that may have Bankruptcy Issues (Public Meeting) Secretary. occurred. (Contact: Larry Camper, 301–415– [FR Doc. 02–9983 Filed 4–19–02; 10:35 am] Dated: April 16, 2002. 7234) BILLING CODE 7590–01–M Sher Bahadur, This meeting will be Webcast live at Associate Director for Technical Support, the Web address—www.nrc.gov. ACRS/ACNW. Wednesday, May 29, 2002 SECURITIES AND EXCHANGE [FR Doc. 02–9890 Filed 4–22–02; 8:45 am] 9:25 a.m. Affirmation Session (Public COMMISSION BILLING CODE 7590–01–P Meeting) (If needed) Briefing on the Status of New Reactor Licensing Submission For OMB Review; Activities (Public Meeting) (Contact: Comment Request NUCLEAR REGULATORY Joseph Williams, 301–415–1470) COMMISSION 9:30 a.m. Upon written request, copies available from: Securities and Exchange Commission, Sunshine Act Meeting This meeting will be Webcast live at Office of Filings and Information the Web address—www.nrc.gov. Services, Washington, DC 20549. Agency Holding the Meeting: Nuclear llllllll Regulatory Commission. Extension Rule 17a–13; SEC File No. *The schedule for Commission meetings is 270–27; OMB Control No. 3235–0035 Date: Weeks of April 22, 29, May 6, subject to change on short notice. To verify 13, 20, 27, 2002. the status of meetings call (recording)—(301) Notice is hereby given that, pursuant Place: Commissioners’ Conference 415–1292. Contact person for more to the Paperwork Reduction Act of 1995 information: David Louis Gamberoni (301) Room, 11555 Rockville Pike, Rockville, 415–1651. (44 U.S.C. 3501 et seq.), the Securities Maryland. and Exchange Commission Status: Public and Closed. Additional Information (‘‘Commission’’) has submitted to the By a vote of 5–0 on April 11 and 12, Office of Management and Budget Matters To Be Considered the Commission determined pursuant to (‘‘OMB’’) a request for the extension of Week of April 22, 2002 U.S.C. 552b(e) and § 9.107(a) of the the previously approved collection of Commission’s rules that ‘‘Affirmation of information on the following rule: 17 There are no meetings scheduled for (a) Pacific Gas & Electric Co. (Diablo CFR 240.17a–13 Quarterly Security the Week of April 22, 2002. Canyon Power Plant, Units 1 and 2), Counts to be Made by Certain Exchange Week of April 29, 2002—Tentative Docket Nos. 50–275–LT, 50–323–LT, (b) Members, Brokers, and Dealers. Tuesday, April 30, 2002 International Uranium (USA) Rule 17a–13(b) generally requires that Corporation (White Mesa Uranium Mill) at least once each calendar quarter, all 9:30 a.m. Discussion of Appeal of LBP–02–03 (MLA–10), (c) registered brokers and dealers Intergovernmental Issues (Closed—Ex. Duke Energy Corp. (McGuire Nuclear physically examine and count all 1) Station, Units 1 & 2; Catawaba Nuclear securities held and account for all other Station, Units 1 & 2), (d) Private Fuel Wednesday, May 1, 2002 securities not in their possession, but Storage (Independent Spent Fuel subject to the broker-dealer’s control or 8:55 a.m. Affirmation Session (Public Storage Installation) Docket No. 72–22– direction. Any discrepancies between Meeting) (If needed) ISFSI; Protective Order for Documents the broker-dealer’s securities count and 9 a.m. Briefing on Results of Agency Submitted with Skull Valley Band’s the firm’s records must be noted and, Action Review Meeting—Reactors Brief in Response to CLI–02–08 within seven days, the unaccounted for (Public Meeting) (Contact: Robert (Granting Review of Environmental difference must be recorded in the Pascarelli, 301–415–1245) Justice Ruling, LBP–02–08), and (e) Re- firm’s records. Rule 17a–13(c) provides This meeting will be Webcast live at Affirmation of the Final Rule on Part that under specified conditions, the the Web address—www.nrc.gov. 35—Medical Use of Byproduct securities counts, examination and Material’’ be held on April 12, and on verification of the broker-dealer’s entire Week of May 6, 2002—Tentative less than one week’s notice to the list of securities may be conducted on There are no meetings scheduled for public. a cyclical basis rather than on a certain the Week of May 6, 2002. * * * * * date. Although Rule 17a–13 does not VerDate 11 require filing a report with the agency may not conduct or sponsor, and 2002.4 The Amex has designated this Commission, the discrepancies must be a person is not required to respond to, proposal as one establishing or changing reported on Form X–17a–5 as required a collection of information unless it a due, fee, or other charge imposed by by Rule 17a–5. Rule 17a–13 exempts displays a currently valid control the Exchange under section broker-dealers that limit their business number. 19(b)(3)(A)(ii) of the Act,5 which to the sale and redemption of securities Written Comments regarding the renders the proposal effective upon of registered investment companies and above information should be directed to filing with the Commission. The interests or participation in an the following persons: (i) Desk Officer Commission is publishing this notice to insurance company separate account for the Securities and Exchange solicit comments on the proposed rule and those who solicit accounts for Commission, Office of Information and change, as amended, from interested federally insured savings and loan Regulatory Affairs, Office of persons. associations, provided that such persons Management and Budget, Room 10202, I. Self-Regulatory Organization’s promptly transmit all funds and New Executive Office Building, Statement of the Terms of Substance of securities and hold no customer funds Washington, DC 20503; and (ii) Michael the Proposed Rule Change and securities. E. Bartell, Associate Executive Director, The information obtained from Rule Office of Information Technology, The Amex proposes to amend its 17a–13 is used as an inventory control Securities and Exchange Commission, Member Fees Schedule to impose device to monitor a broker-dealer’s 450 Fifth Street, NW., Washington, DC quarterly Examination Fees on member ability to account for all securities held, 20549. Comments must be submitted to firms for which the Amex is the in transfer, in transit, pledged, loaned, OMB within 30 days of this notice. Designated Examining Authority (‘‘DEA’’). The text of the proposed rule borrowed, deposited or otherwise Dated: April 16, 2002. subject to the firm’s control or direction. change is available at the Amex and at Margaret H. McFarland, Discrepancies between the securities the Commission. Deputy Secretary. counts and the broker-dealer’s records II. Self-Regulatory Organization’s [FR Doc. 02–9881 Filed 4–22–02; 8:45 am] alert the Commission and the Self- Statement of the Purpose of, and Regulatory Organizations (‘‘SROs’’) to BILLING CODE 8010–01–P Statutory Basis for, the Proposed Rule those firms having problems in their Change back offices. SECURITIES AND EXCHANGE In its filing with the Commission, the Because of the many variations in the COMMISSION Exchange included statements amount of securities that broker-dealers concerning the purpose of and basis for are accountable for, it is difficult to [Release No. 34–45764; File No. SR–Amex– its proposal and discussed any 2002–10] develop a meaningful figure for the cost comments it received regarding the of compliance with Rule 17a–13. Self-Regulatory Organizations; Notice proposal. The text of these statements Approximately 91% of all registered may be examined at the places specified broker-dealers are subject to Rule 17a– of Filing and Immediate Effectiveness of Proposed Rule Change and in Item IV below. The Amex has 13. Accordingly, approximately 6,579 prepared summaries, set forth in broker-dealers have obligations under Amendment Nos. 1 and 2 Thereto by the American Stock Exchange LLC to sections A, B and C below, of the most the Rule, and the average time it would significant aspects of such statements. take each broker-dealer to comply with Establish Examination Fees on the Rule is 100 hours per year, for a total Member Firms for Which the Amex Is A. Self-Regulatory Organization’s estimated annualized burden of 657,900 the Designated Examining Authority Statement of the Purpose of, and hours. It should be noted that a April 16, 2002. Statutory Basis for, the Proposed Rule Change significant number of firms subject to Pursuant to section 19(b)(1) of the Rule 17a–13 have minimal obligations Securities Exchange Act of 1934 1. Purpose under the Rule because they do not hold 1 2 (‘‘Act’’), and Rule 19b–4 thereunder, For each member firm for which the securities. It should further be noted notice is hereby given that on February that most broker-dealers would engage Amex serves as the DEA pursuant to 28, 2002, the American Stock Exchange Rule 17d–1 under the Act,6 the Amex in the activities required by Rule 17a– LLC (‘‘Amex’’ or ‘‘Exchange’’) filed with 13 even if they were not required to do proposes to charge an Examination Fee the Securities and Exchange of $.00040 per dollar of gross revenue, so. Commission (‘‘Commission’’ or ‘‘SEC’’) Security counts under Rule 17a–13 as reported in the firm’s FOCUS Report the proposed rule change as described are mandatory for broker-dealers. If a (Form X–17A–5 or replacement form). in Items I, II and III below, which Items broker-dealer has security discrepancies FOCUS Reports are filed either quarterly have been prepared by the Exchange. that must be recorded in its records, or annually. This fee is subject to a On March 27, 2002, the Amex amended such records must be preserved for a quarterly minimum fee of $750 for firms the proposal.3 The Amex again period of no less than three years that engage in public business and $250 amended the proposal on April 4, pursuant to Rule 17a–4(b)(1). Rule 17a– 13 does not assure confidentiality for 4 See April 3, 2002 letter from Michael Cavalier, letters, or memoranda arising out of, in anticipation Associate General Counsel, Amex, to Nancy Sanow, security discrepancy records and reports of, or in connection with an examination or Assistant Director, Division, SEC and attachments on Form X–17a–5.1 Please note that an inspection of the books and records of any person (‘‘Amendment No. 2’’). In Amendment No. 2, the or any other investigation. Amex provided additional language describing the 1 The records required by Rule 17a–13 are 1 15 U.S.C. 78s(b)(1). purpose of the proposed rule change, and provided available only to the examination of the 2 17 CFR 240.19b–4. a new Exhibit A that completely replaces and Commission staff, state securities authorities and 3 See March 26, 2002 letter from Geraldine M. supersedes the previous Exhibits A filed with the the SROs. Subject to the provisions of the Freedom Brindisi, Vice President and Corporate Secretary, Commission. For purposes of calculating the 60-day of Information Act, 5 U.S.C. 522, and the Amex to Nancy Sanow, Assistant Director, Division abrogation period, the Commission considers the Commission’s rules thereunder (17 CFR of Market Regulation (‘‘Division’’), SEC and abrogation period to have commenced on April 4, 200.80(b)(4)(iii)), the Commission does not attachments (‘‘Amendment No. 1’’). Amendment 2002. generally publish or make available information No. 1 completely replaces and supersedes the 5 15 U.S.C. 78s(b)(3)(A)(ii). contained in any reports, summaries, analyses, original proposal. 6 17 CFR 240.17d–1. VerDate 11 for firms that do not engage in public deleted, and former Section IV (Access statements with respect to the proposed business. In order to reduce the Fees), which previously included only rule change that are filed with the potential impact on member firms that the electronic access fee, have been Commission, and all written operate or are otherwise affiliated with consolidated into revised Section III communications relating to the other entities subject to the fee, the (Membership Fees). proposed rule change between the Exchange will impose on member firms 2. Statutory Basis Commission and any person, other than operating additional entities (e.g., those that may be withheld from the affiliated broker-dealers) 50% of the The Exchange believes that the public in accordance with the minimum fees for each additional proposal is consistent with section 6(b) provisions of 5 U.S.C. 552, will be entity. of the Act 14 in general and furthers the available for inspection and copying in The proposed fee is intended to objectives of section 6(b)(4) of the Act 15 the Commission’s Public Reference permit the Exchange to recover a in particular in that it is designed to Room. Copies of such filing will also be portion of the regulatory expenses provide for the equitable allocation of available for inspection and copying at incurred by the Exchange in its reasonable dues, fees, and other charges the principal office of the Amex. All performance of its DEA among Amex members and issuers and submissions should refer to file number responsibilities.7 The Amex notes that other persons using the Amex’s SR–Amex–2002–10 and should be the proposed fee is comparable to facilities. submitted by May 14, 2002. member fees imposed by the Chicago B. Self-Regulatory Organization’s For the Commission, by the Division of Board Options Exchange and New York Statement on Burden on Competition Stock Exchange in connection with the Market Regulation, pursuant to delegated authority.19 DEA function of those exchanges.8 The Exchange does not believe that The proposed fees will be designated the proposed rule change will impose Margaret H. McFarland, ‘‘Examination Fees’’ under the any burden on competition. Deputy Secretary. Exchange’s Member Fees Schedule, C. Self-Regulatory Organization’s [FR Doc. 02–9883 Filed 4–22–02; 8:45 am] attached as Exhibit A. In addition to Statement on Comments on the BILLING CODE 8010–01–P adding the Examination Fees, the Proposed Rule Change Received From Member Fees Schedule has been revised Members, Participants or Others to include member fees previously filed SECURITIES AND EXCHANGE with the Commission, including: (1) No written comments were solicited COMMISSION under revised Section II (Initiation or received with respect to the proposed rule change. Fees), the Qualifying Membership [Release No. 34–45770; File No. SR–CHX– 9 Retesting Fee, the Regular and Options III. Date of Effectiveness of the 2001–26] Principal Special Transfer (Lease) fee Proposed Rule Change and Timing for under Article VII, Section 1(c) of the Commission Action Self-Regulatory Organizations; Order 10 Exchange Constitution; and (2) all fees The proposed rule change has become Granting Approval of Proposed Rule under revised Section III (Membership effective pursuant to section Change by the Chicago Stock Fees), including interim member fees,11 19(b)(3)(A)(ii) of the Act 16 and Exchange, Incorporated Relating to fees for Associate Members and Off- subparagraph (f)(2) of Rule 19b–4 Automatic and Manual Execution Floor traders,12 and Specialist Fees.13 thereunder,17 because it establishes or Procedures Former Section III (Permits), which, changes a due, fee, or other charge April 17, 2002. with the exception of Limited Trading imposed by the Amex. At any time Permit fees, included fees that are no within 60 days of the filing of the I. Introduction longer applicable and have been proposed rule change, the Commission may summarily abrogate such rule On November 14, 2001, the Chicago 7 The fee is not designed to generate revenue. Stock Exchange, Incorporated (‘‘CHX’’ Telephone conversation between Michael Cavalier, change if it appears to the Commission Associate General Counsel, Amex, and Joseph that such action is necessary or or ‘‘Exchange’’) filed with the Securities Morra, Special Counsel, Division, SEC, April 15, appropriate in the public interest, for and Exchange Commission 2002. The Commission expects that the Amex will the protection of investors, or otherwise (‘‘Commission’’ or ‘‘SEC’’), pursuant to monitor the fee carefully, and should the Amex in furtherance of the purposes of the section 19(b)(1) of the Securities collect more than is necessary to offset costs 1 incurred in the performance of its DEA Act.18 Exchange Act of 1934 (‘‘Act’’), and 2 responsibilities, the Commission expects the Amex Rule 19b–4 thereunder, a proposed to adjust the fee. IV. Solicitation of Comments rule change to amend its rules to clarify 8 See Securities Exchange Act Release Nos. 43144 Interested persons are invited to a specialist’s obligations relating to the (August 10, 2000), 65 FR 50258 (August 17, 2000) submit written data, views, and automatic execution of orders and (SR–CBOE–2000–24) and 20843 (April 9, 1984), 49 FR 15042 (April 16, 1984) (SR–NYSE–84–7). arguments concerning the foregoing, provide guidance regarding a 9 Securities Exchange Act Release No. 44286 (May including whether the proposal is specialist’s ability to switch from 9, 2001), 66 FR 27187 (May 16, 2001) (SR–Amex– consistent with the Act. Persons making automatic to manual execution mode. 2001–22). written submissions should file six Notice of the proposed rule change was 10 Securities Exchange Act Release Nos. 23823 copies thereof with the Secretary, published for comment in the Federal (November 18, 1986), 51 FR 42955 (November 26, 3 1986) (SR–Amex–86–28) and 40426 (September 10, Securities and Exchange Commission, Register on February 13, 2002. The 1998), 63 FR 49766 (September 17, 1988) (SR– 450 Fifth Street, NW., Washington, DC Commission received no comments Amex–98–32). 20549–0609. Copies of the submission, with respect to the proposal. This order 11 Securities Exchange Act Release No. 43016 all subsequent amendments, all written approves the proposed rule change. (July 7, 2000), 65 FR 44552 (July 18, 2000) (SR– Amex–2000–19). 14 12 Securities Exchange Act Release No. 43279 15 U.S.C. 78f(b). 19 17 CFR 200.30–3(a)(12). (September 11, 2000), 65 FR 56606 (September 19, 15 15 U.S.C. 78f(b)(4). 1 15 U.S.C. 78s(b)(1) 2000) (SR–Amex–2000–44). 16 15 U.S.C. 78s(b)(3)(A)(ii). 2 17 CFR 240.19b–4 13 Securities Exchange Act Release No. 45725 17 17 CFR 240.19b–4(f)(2). 3 Securities Exchange Act Release No. 45410 (April 10, 2002) (SR–Amex–2002–8). 18 See note 4 supra. (February 6, 2002), 67 FR 6774. VerDate 11 II. Description of the Proposal seeking to shift to manual execution criteria in Interpretation .04. 5 The The Exchange proposes to amend mode. Under current Interpretation .04, Exchange also believes that the Article XX, Rule 37 of the CHX Rules, a specialist firm seeking to switch from proposed rule change will assist the which governs, among other things, automatic execution mode to manual Market Regulation Department in automatic execution of market and execution mode must seek the determining whether violations of the marketable limit orders. The proposed permission of two floor officials before Exchange’s rules regarding manual rule change is intended to clarify a switching to manual mode; once in execution mode have occurred. specialist’s obligations relating to the manual mode, the specialist firm must III. Discussion automatic execution of orders and to return to automatic execution After careful review, the Commission provide CHX specialists and floor functionality when the conditions that finds that the proposed rule change is officials with additional guidance caused the switch to manual mode are consistent with the Act and the rules regarding the ability of a CHX specialist no longer present. Specialists also must and regulations promulgated thereunder to switch to manual execution mode. immediately reinstate the automatic applicable to a national securities The two rule changes are summarized execution functionality when the exchange and, in particular, with the below. primary market quotes accurately reflect market conditions. requirements of Section 6(b). 6 a. Reduction of Minimum Auto By contrast, under the proposed Specifically, the Commission finds that Execution Threshold amendment to Interpretation .04, the approval of the proposed rule change is The proposed change to Article XX, specialist firm is required to secure the consistent with Section 6(b)(5)7 in that Rule 37(b), which governs automatic permission of its floor supervisor to it is designed to promote just and execution of eligible orders, would switch to manual mode. To permit the equitable principles of trade, to remove reduce the minimum auto execution specialist to remain in manual impediments to and to perfect the threshold from 300 shares to 100 shares. execution mode, the floor supervisor mechanism of a free and open market This change is intended to reconcile a must immediately notify and secure the and a national market system, and in specialist’s automatic execution approval of one floor official. The general, to protect investors and the obligation with the post-decimalization permission granted by the floor official public interest. trading environment. The Exchange to operate in manual execution mode The Commission believes that represents that, given the scattering of shall be in effect for a period of five reducing the size threshold for liquidity over multiple price points and minutes only. After that five minute automatic execution from 300 to 100 resulting reduction in Best Bid or Offer period, the specialist firm’s floor shares will likely encourage CHX (‘‘BBO’’) size, 4 many specialists desire supervisor must again secure the specialists to remain in the automatic to reduce their automatic execution permission of the floor official who execution mode for longer periods of exposure for certain issues to levels that granted the initial permission (and if time by decreasing their risk of exposure are commensurate with reduced BBO such floor official is not available, then to larger sized orders. This in turn size. In order to preserve consistency from another floor official) to allow the should enable investors to take greater and avoid customer confusion, the specialist firm to remain in manual advantage of the benefits of automatic proposed rule change would apply to execution mode. Documentation execution with respect to speed and 8 both Dual Trading System and Nasdaq/ regarding the switch to manual mode price of execution. The Commission NM issues. Specialists would remain must be filed with the CHX Market notes that, under the proposed rule free to increase their auto execution Regulation Department before the next change, specialists retain the ability to thresholds to larger sizes if they believe business day’s opening. increase their automatic execution that business/marketing considerations Finally, the proposed rule change thresholds to a larger size if they choose so demand. The Exchange represents reduces the time period in which a to do so. that, in fact, a number of CHX specialist firm may remain in manual In addition, the Commission finds specialists have indicated that they execution mode when a certain analyst/ that new Interpretation .04 promotes would reduce their auto execution reporter’s report is broadcast on cable investor protection and the public threshold to 100 shares only in very television, pursuant to the terms and interest by imposing new requirements limited instances. conditions of Interpretation .04. Under on specialists seeking to switch from current Interpretation .04, in the case of b. Procedures for Floor Official 5 Telephone conversation between Kathleen M. Approval of Manual Execution Mode such a cable television broadcast, a Boege, Associate General Counsel, CHX and Gordon specialist may switch from automatic to Fuller, Counsel to the Assistant Director, Division The Exchange also proposes to amend manual mode without floor official of Market Regulation (‘‘Division’’), Commission Article XX, Rule 37, Interpretation and approval, and may remain in manual (March 22, 2002). 6 Policy .04, which governs the mode for no more than ten minutes. The 15 U.S.C. 78f(b). In approving this proposal, the procedures by which specialists are to Commission has considered the proposed rule’s proposed rule change reduces outside impact on efficiency, competition and capital obtain permission to switch from limit from ten to five minutes. formation. 15 U.S.C. 78c(f). automatic execution mode to manual The Exchange represents that it 7 15 U.S.C. 78f(b)(5). execution mode. anticipates that the proposed rule 8 In the MAX System, the largest universe of The proposed amendment to the change will promote greater orders that are eligible for price improvement are Interpretation places greater orders subject to automatic execution. For example, accountability and preclude reliance on CHX Rule 37(h) sets forth price guarantees responsibility on the specialist firm manual execution mode in a manner applicable to CHX’s SuperMax 2000 system, a that is potentially violative of CHX voluntary automatic execution program within the 4 The Exchange represents that average size at MAX System. SuperMax 2000 must be enabled on BBO price points has declined significantly rules. Specifically, the Exchange an issue-by-issue basis by the specialist, and these following the transition to decimal pricing, with believes that reducing the automatic price guarantees apply only when the specialist is approximate size reductions of 67% in the case of execution threshold from 300 to 100 in automatic execution mode. Telephone Tape A issues (securities listed on the NYSE), 37% shares will reduce the likelihood of a conversation between Kathleen M. Boege, Associate for Tape B issues (securities listed on the Amex) General Counsel, CHX and Gordon Fuller, Counsel abd 44% for Tape O issues (securities listed on specialist firm switching from automatic to the Assistant Director, Division, Commission Nasdaq) to manual mode without satisfying the (March 22, 2002). VerDate 11 automatic execution to manual mode. IV. Conclusion (‘‘Act’’),1 and Rule 19b-4 2 thereunder, The Commission notes that, in cases of For the foregoing reasons, the notice is hereby given that on April 15, breaking news stories broadcast on cable Commission finds that the proposed 2002, the International Securities television, the specialist may switch to rule change is consistent with the Act Exchange LLC (‘‘ISE’’ or ‘‘Exchange’’) manual mode without floor official and the rules and regulations filed with the Securities and Exchange approval as under the previous language thereunder applicable to a national Commission (the ‘‘Commission’’) the of the Interpretation; however, the securities exchange, and, in particular, proposed rule change as described in maximum period of time in which the with section 6(b)(5) of the Act.9 Items I, II, and III below, which Items specialist may remain in manual mode It is therefore ordered, pursuant to have been prepared by the Exchange. without floor official approval has been section 19(b)(2) of the Act,10 that the The Commission is publishing this reduced from ten minutes to five proposed rule change (SR-CHX–2001– notice to solicit comments on the minutes. The Commission also notes 26) is approved. proposed rule change from interested that, in instances other than a cable For the Commission, by the Division of persons. news broadcast, the specialist must Market Regulation, pursuant to delegated secure the permission of its floor authority.11 I. Self-Regulatory Organization’s supervisor to switch to manual mode; Margaret H. McFarland, Statement of the Terms of Substance of the floor supervisor in turn must obtain Deputy Secretary. the Proposed Rule Change approval from one floor official to [FR Doc. 02–9882 Filed 4–22–02; 8:45 am] permit the specialist to remain in The Exchange proposes to establish a manual mode. It is significant that the BILLING CODE 8010–01–P $.10 surcharge for non-customer specialist may remain in manual mode transactions in options on Nasdaq for only five minutes without the floor SECURITIES AND EXCHANGE Biotech Index iShares. supervisor renewing the approval of the COMMISSION The text of the proposed rule change same floor official (or obtaining appears below. New text is in italics. approval of another floor official if the [Release No. 34–45765; File No. SR–ISE– first official is not available). Finally, 2002–10] the Commission notes that new Self-Regulatory Organizations; Notice Interpretation .04 requires that of Filing and Immediate Effectiveness documentation regarding the switch be of Proposed Rule Change by the filed with the Market Regulation International Securities Exchange LLC Department before the next business to Establish a $.10 Surcharge for Non- day’s opening. The Commission Customer Transactions in Options on believes that these safeguards will Nasdaq Biotech Index iShares provide greater accountability on the part of specialists when they switch April 16, 2002. from automatic execution mode to Pursuant to section 19(b)(1) of the manual execution mode. Securities Exchange Act of 1934 ISE Schedule of Fees Electronic Market Place Amount Billable Unit Frequency Notes ******* Execution Fees. ******* • Surcharge for Options on Nasdaq 100 Index Tracking $0.10 contract/side ...... Transaction ...... Excludes cus- Stock sm and the Nasdaq Biotech Index iShares. tomers ******* II. Self-Regulatory Organization’s forth in Sections A, B, and C below, of with its trading of options on the Statement of the Purpose of, and the most significant aspects of such Nasdaq-100 Index Tracking iShares. Statutory Basis for, the Proposed Rule statements. The purpose of this proposed rule Change A. Self-Regulatory Organization’s change is to adopt a fee for trading in In its filing with the Commission, the Statement of the Purpose of, and these options to defray the licensing Exchange included statements Statutory Basis for, the Proposed Rule costs. The Exchange believes that concerning the purpose of and basis for Change charging the participants that trade in the proposed rule change and discussed options on this instrument is the most (1) Purpose any comments it received on the equitable means of recovering the costs proposed rule change. The text of these The Exchange states that it has of the license. However, because statements may be examined at the entered into a license agreement to use competitive pressures in the industry places specified in Item IV below. The various trademarks regarding the have resulted in the waiver of all Exchange has prepared summaries, set Nasdaq Biotech Index in connection transaction fees for customer 9 15 U.S.C. 78f(b)(5). 11 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b-4. 10 15 U.S.C. 78s(b)(2). 1 15 U.S.C. 78s(b)(1). VerDate 11 transactions, the Exchange does not Washington, DC 20549–0609. Copies of solicit comments on the proposed rule propose to charge this additional fee the submission, all subsequent change from interested persons. with respect to customer transactions. amendments, all written statements I. Self-Regulatory Organization’s The fee will be charged only with with respect to the proposed rule Statement of the Terms of Substance of respect to non-customer transactions. change that are filed with the the Proposed Rule Change (2) Statutory Basis Commission, and all written communications relating to the Nasdaq proposes to extend through The Exchange believes that the proposed rule change between the September 30, 2002, the current pilot proposed rule change is consistent with Commission and any person, other than price-improvement standards for section 6(b) of the Act,3 in general, and those that may be withheld from the decimalized securities contained in furthers the objectives of Section public in accordance with the NASD Interpretative Material 2110–2— 6(b)(4),4 in particular, in that it provides provisions of 5 U.S.C. 552, will be Trading Ahead of Customer Limit Order for the equitable allocation of reasonable available for inspection and copying in (‘‘Manning Interpretation’’ or dues, fees, and other charges among its the Commission’s Public Reference ‘‘Interpretation’’). Without such an members and other persons using its Section. Copies of such filing will also extension these standards would facilities. be available for inspection and copying terminate on April 15, 2002. Nasdaq does not propose to make any B. Self-Regulatory Organization’s at the principal office of the Exchange. substantive changes to the pilot; the Statement on Burden on Competition All submissions should refer to File No. SR–ISE–2002–10 and should be only change is an extension of the The Exchange does not believe that submitted by May 14, 2002. pilot’s expiration date through the proposed rule change will impose September 30, 2002. Nasdaq requests any burden on competition that is not For the Commission, by the Division of that the Commission waive both the 5- necessary or appropriate in furtherance Market Regulation, pursuant to delegated day notice and 30-day pre-operative authority.7 of the Act. requirements contained in Rule 19b- Margaret H. McFarland, 4(f)(6)(iii)5 of the Act. If such waivers C. Self-Regulatory Organization’s Deputy Secretary. Statement on Comments on the are granted by the Commission, Nasdaq [FR Doc. 02–9884 Filed 4–22–02; 8:45 am] Proposed Rule Change Received from will implement this rule change Members, Participants, or Others BILLING CODE 8010–01–P immediately. The Exchange has not solicited, and II. Self-Regulatory Organization’s does not intend to solicit, comments on SECURITIES AND EXCHANGE Statement of the Purpose of, and this proposed rule change. The COMMISSION Statutory Basis for, the Proposed Rule Exchange has not received any Change unsolicited written comments from [Release No. 34–45762; File No. SR–NASD– In its filing with the Commission, members or other interested parties. 2002–54] Nasdaq included statements concerning III. Date of Effectiveness of the Self-Regulatory Organizations; Notice the purpose of and basis for its proposal and discussed any comments it received Proposed Rule Change and Timing for of Filing and Immediate Effectiveness regarding the proposal. The text of these Commission Action of Proposed Rule Change by the statements may be examined at the National Association of Securities The foregoing rule change establishes places specified in Item IV below. Dealers, Inc., To Extend the Pilot for or changes a due, fee, or charge imposed Nasdaq has prepared summaries, set Limit Order Protection of Securities by the Exchange and, therefore, has forth in Sections A, B and C below, of Priced in Decimals become effective upon filing pursuant to the most significant aspects of such section 19(b)(3)(A)(ii) of the Act 5 and April 16, 2002. statements. Rule 19b-4(f)(2) thereunder.6 At any time within 60 days of the filing of such Pursuant to section 19(b)(1) of the A. Self-Regulatory Organization’s proposed rule change, the Commission Securities Exchange Act of 1934 Statement of the Purpose of, and 1 2 may summarily abrogate such rule (‘‘Act’’), and Rule 19b-4 thereunder, Statutory Basis for, the Proposed Rule change if it appears to the Commission notice is hereby given that on April 10, Change 2002, the National Association of that such action is necessary or 1. Purpose appropriate in the public interest, for Securities Dealers, Inc. (‘‘NASD’’ or the protection of investors, or otherwise ‘‘Association’’), through its subsidiary, NASD’s Manning Interpretation in furtherance of the purposes of the the Nasdaq Stock Market, Inc. requires NASD member firms to provide Act. (‘‘Nasdaq’’), filed with the Securities a minimum level of price improvement and Exchange Commission to incoming orders in NMS and IV. Solicitation of Comments (‘‘Commission’’) the proposed rule SmallCap securities if the firm chooses Interested persons are invited to change as described in Items I, II and III to trade as principal with those submit written data, views and below, which Items have been prepared incoming orders at prices superior to arguments concerning the foregoing, by Nasdaq. Nasdaq filed the proposal customer limit orders they currently including whether the proposed rule pursuant to section 19(b)(3)(A) of the hold. If a firm fails to provide the change is consistent with the Act. Act,3 and Rule 19b-4(f)(6)4 thereunder, minimum level of price improvement to Persons making written submissions which renders the proposal effective the incoming order, the firm must should file six copies thereof with the upon filing with the Commission. The execute its held customer limit orders. Secretary, Securities and Exchange Commission is publishing this notice to Generally, if a firm fails to provide the Commission, 450 Fifth Street, NW, requisite amount of price improvement 7 17 CFR 200.30–3(a)(12). and also fails to execute its held 3 15 U.S.C. 78f(b). 1 15 U.S.C. 78s(b)(1). customer limit orders, it is in violation 4 15 U.S.C. 78f(b)(4). 2 17 CFR 240.19b-4. of the Manning Interpretation. 5 15 U.S.C. 78(s)(b)(3)(A)(ii). 3 15 U.S.C. 78s(b)(3)(A). 6 17 CFR 240.19b-4(f)(2). 4 17 CFR 240.19b-4(f)(6). 5 17 CFR 240.19b-4(f)(6)(iii). VerDate 11 On April 6, 2001,6 the Commission system; and (4) protect investors and the IV. Solicitation of Comments approved, on a pilot basis, Nasdaq’s public interest. Interested persons are invited to proposal to establish the following price B. Self-Regulatory Organization’s submit written data, views, and improvement standards whenever a Statement on Burden on Competition arguments concerning the foregoing, market maker wished to trade including whether the proposal is Nasdaq does not believe that the proprietarily in front of its held consistent with the Act. Persons making proposed rule change will impose any customer limit orders without triggering written submissions should file six inappropriate burden on competition. an obligation to also execute those copies thereof with the Secretary, orders: C. Self-Regulatory Organization’s Securities and Exchange Commission, (1) For customer limit orders priced at Statement on Comments on the 450 Fifth Street, NW, Washington, DC or inside the best inside market Proposed Rule Change Received from 20549–0609. Copies of the submission, displayed in Nasdaq, the minimum Members, Participants or Others all subsequent amendments, all written amount of price improvement required Written comments were neither statements with respect to the proposed is $0.01; and solicited nor received. rule change that are filed with the (2) For customer limit orders priced Commission, and all written outside the best inside market displayed III. Date of Effectiveness of the communications relating to the in Nasdaq, the market maker must price Proposed Rule Change and Timing for proposed rule change between the improve the incoming order by Commission Action Commission and any person, other than executing the incoming order at a price Because the foregoing proposed rule those that may be withheld from the at least equal to the next superior change does not: public in accordance with the minimum quotation increment in (i) Significantly affect the protection provisions of 5 U.S.C. 552, will be Nasdaq (currently $0.01).7 of investors or the public interest; available for inspection and copying in Since approval, these standards have (ii) impose any significant burden on the Commission’s Public Reference operated on a pilot basis and are competition; and Room. Copies of such filing will also be currently scheduled to terminate on (iii) become operative for 30 days available for inspection and copying at April 15, 2002. After consultation with from the date on which it was filed, or the principal office of Nasdaq. All Commission staff, Nasdaq seeks an such shorter time as the Commission submissions should refer to file number extension of its current Manning pilot may designate if consistent with the SR–NASD–2002–54 and should be until September 30, 2002. Nasdaq protection of investors and the public submitted by May 14, 2002. believes that such an extension provides interest, it has become effective For the Commission, by the Division of for an appropriate continuation of the pursuant to section 19(b)(3)(A) of the Market Regulation, pursuant to delegated current Manning price-improvement Act 10 and Rule 19b–4(f)(6) authority.14 standard while the Commission thereunder.11 At any time within 60 Margaret H. McFarland, analyzes the issues related to customer days of the filing of the proposed rule Deputy Secretary. limit order protection for decimalized change, the Commission may summarily [FR Doc. 02–9855 Filed 4–22–02; 8:45 am] securities, and reviews Nasdaq’s abrogate such rule change if it appears BILLING CODE 8010–01–P separately filed rule proposal to make to the Commission that such action is this pilot permanent.8 necessary or appropriate in the public interest, for the protection of investors, SECURITIES AND EXCHANGE 2. Statutory Basis or otherwise in furtherance of the COMMISSION Nasdaq believes that the proposed purposes of the Act. Nasdaq has requested the Commission [Release No. 34–45761; File No. SR–NASD– rule change is consistent with the 2002–53] provisions of section 15A(b)(6) of the waive both the 5-day notice and 30-day Act 9 in that it is designed to: (1) pre-operative requirements contained in Self-Regulatory Organizations; Notice Promote just and equitable principles of Rule 19b–4(f)(6)12 and has requested of Filing and Immediate Effectiveness trade; (2) foster cooperation and that the Commission accelerate the of Proposed Rule Change by the coordination with persons engaged in operative date. The Commission finds National Association of Securities regulating, clearing, settling, processing good cause to designate the proposal to Dealers, Inc., To Extend the Pilot for information with respect to and become operative immediately because the Operation of the Short Sale Rule in facilitating transactions in securities; (3) such designation is consistent with the a Decimals Environment perfect the mechanism of a free and protection of investors and the public open market and a national market interest. Acceleration of the operative April 16, 2002. date will allow the pilot to continue Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 6 See Securities Exchange Act Release No. 44165 uninterrupted through September 30, 1 2 (April 6, 2001), 66 FR 19268 (April 13, 2001) (order 2002, and will allow Nasdaq and the (‘‘Act’’), and Rule 19b–4 thereunder, approving proposed rule change modifying NASD’s Commission to analyze the issues notice is hereby given that on April 10, Interpretative Material 2110–2 ‘‘ Trading Ahead of related to customer limit order 2002, the National Association of Customer Limit Order). Securities Dealers, Inc. (‘‘NASD’’ or 7 Pursuant to the terms of the Decimals protection in a decimal environment. Implementation Plan for the Equities and Options For these reasons, the Commission finds ‘‘Association’’), through its subsidiary, Markets, the minimum quotation increment for good cause to designate that the the Nasdaq Stock Market, Inc. Nasdaq securities (both National Market and proposal is both effective and operative (‘‘Nasdaq’’), filed with the Securities SmallCap) at the outset of decimal pricing is $0.01. upon filing with the Commission.13 and Exchange Commission As such, Nasdaq displays priced quotations to two (‘‘Commission’’) the proposed rule places beyond the decimal point (to the penny). Quotations submitted to Nasdaq that do not meet 10 15 U.S.C. 78s(b)(3)(A). this standard are rejected by Nasdaq systems. See 11 17 CFR 240.19b–4(f))6). efficiency, competition, and capital formation. 15 Securities Exchange Act Release No. 43876 (January 12 Id. U.S.C. 78c(f). 23, 2001), 66 FR 8251 (January 30, 2001). 13 For purposes only of accelerating the operative 14 17 CFR 200.30–3(a)(12). 8 See SR–NASD 2002–10 date of this proposal, the Commission has 1 15 U.S.C. 78s(b)(1). 9 15 U.S.C. 78o-3(b)(6). considered the proposed rule’s impact on 2 17 CFR 240.19b–4. VerDate 11 change as described in Items I, II and III continuously extended since that date (ii) impose any significant burden on below, which Items have been prepared and is currently set to expire on April competition; and by Nasdaq. Nasdaq filed the proposal 14, 2002.7 Nasdaq now proposes to (iii) become operative for 30 days pursuant to section 19(b)(3)(A) of the extend, through September 30, 2002, from the date on which it was filed, or Act,3 and Rule 19b–4(f)(6)4 thereunder, that pilot program. Extension until such shorter time as the Commission which renders the proposal effective September 30th, will allow Nasdaq and may designate if consistent with the upon filing with the Commission. The the Commission to continue to evaluate protection of investors and the public Commission is publishing this notice to the impact of the penny short sale pilot interest, it has become effective solicit comments on the proposed rule and thereafter take action on Nasdaq’s pursuant to section 19(b)(3)(A) of the change from interested persons. separate pending proposal to make the Act 10 and Rule 19b–4(f)(6) penny short sale standard permanent.8 thereunder.11 At any time within 60 I. Self-Regulatory Organization’s If approved, Nasdaq would continue days of the filing of the proposed rule Statement of the Terms of Substance of during the pilot period to require NASD change, the Commission may summarily the Proposed Rule Change members seeking to effect ‘‘legal’’ short abrogate such rule change if it appears Nasdaq proposes to extend through sales when the current best (inside) bid to the Commission that such action is September 30, 2002, the penny ($0.01) displayed by Nasdaq is lower than the necessary or appropriate in the public legal short sale standard contained in previous bid, to execute those short interest, for the protection of investors, NASD Interpretative Material 3350 sales at a price that is at least $0.01 or otherwise in furtherance of the (‘‘IM–3350’’). Without such an above the current inside bid in that purposes of the Act. extension this standard would terminate security. Nasdaq believes that Nasdaq has requested the Commission on April 15, 2002. Nasdaq does not continuation of this pilot standard waive both the 5-day notice and 30-day propose to make any substantive appropriately takes into account the pre-operative requirements contained in changes to the pilot; the only change is important investor protections provided Rule 19b–4(f)(6)12 and has requested an extension of the pilot’s expiration by the short sale rule and the ongoing that the Commission accelerate the date through September 30, 2002. relationship of the valid short sale price operative date. The Commission finds Nasdaq requests that the Commission amount to the minimum quotation good cause to waive both the 5-day waive both the 5-day notice and 30-day increment of the Nasdaq market notice and 30-day pre-operative pre-operative requirements contained in (currently also $0.01). requirements because the extension of Rule 19b–4(f)(6)(iii)5 of the Act. If such the pilot is consistent with the 2. Statutory Basis waivers are granted by the Commission, protection of investors and the public Nasdaq will implement this rule change Nasdaq believes that the proposed interest. Acceleration of the operative immediately. rule change is consistent with the date will allow the pilot to continue provisions of section 15A(b)(6) of the uninterrupted through September 30, II. Self-Regulatory Organization’s Act9 in that it is designed to: (1) 2002, and will provide Nasdaq and the Statement of the Purpose of, and Promote just and equitable principles of Commission with an opportunity to Statutory Basis for, the Proposed Rule trade; (2) foster cooperation and evaluate the impact of the penny short Change coordination with persons engaged in sale pilot. For these reasons, the In its filing with the Commission, regulating, clearing, settling, processing Commission finds good cause to waive Nasdaq included statements concerning information with respect to and both the 5-day notice and 30-day pre- the purpose of and basis for its proposal facilitating transactions in securities; (3) operative requirements.13 and discussed any comments it received perfect the mechanism of a free and IV. Solicitation of Comments regarding the proposal. The text of these open market and a national market statements may be examined at the system; and (4) protect investors and the Interested persons are invited to places specified in Item IV below. public interest. submit written data, views, and Nasdaq has prepared summaries, set arguments concerning the foregoing, B. Self-Regulatory Organization’s including whether the proposal is forth in Sections A, B and C below, of Statement on Burden on Competition the most significant aspects of such consistent with the Act. Persons making statements. Nasdaq does not believe that the written submissions should file six proposed rule change will impose any copies thereof with the Secretary, A. Self-Regulatory Organization’s inappropriate burden on competition. Securities and Exchange Commission, Statement of the Purpose of, and 450 Fifth Street, NW, Washington, DC C. Self-Regulatory Organization’s Statutory Basis for, the Proposed Rule 20549-0609. Copies of the submission, Statement on Comments on the Change all subsequent amendments, all written Proposed Rule Change Received from statements with respect to the proposed 1. Purpose Members, Participants or Others rule change that are filed with the On March 2, 2001, the Commission Written comments were neither Commission, and all written approved, on a one-year pilot basis solicited nor received. communications relating to the ending March 1, 2002,6 Nasdaq’s III. Date of Effectiveness of the proposed rule change between the proposal to establish a $0.01 above the Commission and any person, other than bid standard for legal short sales in Proposed Rule Change and Timing for Commission Action those that may be withheld from the Nasdaq National Market securities as public in accordance with the part of the Decimals Implementation Because the foregoing proposed rule provisions of 5 U.S.C. 552, will be Plan for the Equities and Options change does not: (i) Significantly affect the protection Markets. The pilot program has been 10 15 U.S.C. 78s(b)(3)(A). of investors or the public interest; 11 17 CFR 240.19b–4(f)(6). 3 15 U.S.C. 78s(b)(3)(A). 12 Id. 4 17 CFR 240.19b–4(f)(6). 7 Securities Exchange Act Release No. 45504 13 For purposes of accelerating the operative date 5 17 CFR 240.19b–4(f)(6)(iii). (March 5, 2002), 67 FR 10948 (March 11, 2002). of this proposal, the Commission has considered 6 Securities Exchange Act Release No. 44030 8 See SR–NASD 2002–09. the proposed rule’s impact on efficiency, (March 2, 2001), 66 FR 14235 (March 9, 2001). 9 15 U.S.C. 78o–3(b))6). competition, and capital formation. 15 U.S.C. 78c(f). VerDate 11 available for inspection and copying in 18, 2001,5 June 26, 2001,6 July 2, 2001,7 $275 per trust authorized for the the Commission’s Public Reference and February 11, 2002,8 respectively. Supplemental List, and a one-time Room. Copies of such filing will also be Amendment Nos. 1, 2, 3, and 4 to the application processing fee of $250 for available for inspection and copying at proposed rule change were published each new trust authorized. In addition, the principal office of Nasdaq. All for comment in the Federal Register on new NASD Rule 7090(b) provides that if submissions should refer to file number March 11, 2002.9 The Commission a UIT expires by its own terms during SR–NASD–2002–53 and should be received no comments regarding the an annual billing period and is replaced submitted by May 14, 2002. amended proposal. This order approves within three months by a trust that is the proposed rule change, as amended. materially similar in investment For the Commission, by the Division of objective, the replacing trust shall be I. Description of the Proposal Market Regulation, pursuant to delegated charged a one-time application fee of authority.14 Nasdaq’s MFQS collects and $150. NASD Rule 7090(b) also provides Margaret H. McFarland, disseminates data pertaining to the that the replacing trust shall not be Deputy Secretary. value of open-end and closed-end charged an annual fee if the expiring [FR Doc. 02–9856 Filed 4–22–02; 8:45 am] mutual funds and UITs. Specifically, the trust has already paid an annual fee for MFQS permits funds included in the that annual billing period.10 BILLING CODE 8010–01–P MFQS (or pricing agents designated by Nasdaq states that the application fee the funds) to transmit directly to Nasdaq supports the Fund Operations personnel pricing information, including SECURITIES AND EXCHANGE who are required to review, record, and information about a fund’s net asset COMMISSION enter each fund into the MFQS for value, offer price, and closing market subsequent dissemination to electronic price. The MFQS currently disseminates or print subscribers. Nasdaq notes that [Release No. 34–45760; File No. SR–NASD– valuation data for over 11,000 funds. the annual fee for the News Media Lists 00–82] NASD Rule 7090 currently sets forth and the Supplemental List support the the fees assessed for the inclusion of NASD’s continuous monitoring of Self-Regulatory Organizations; Order mutual funds in the MFQS. Specifically, funds’ compliance with the standards Approving a Proposed Rule Change NASD Rule 7090(a) provides for the for inclusion in the MFQS, for and Amendment Nos. 1, 2, 3, and 4 assessment of an annual fee of $400 per upgrading the technology used to collect Thereto by the National Association of fund authorized for the News Media and disseminate the MFQS, and for Securities Dealers, Inc. Relating to the Lists, $275 per fund authorized for the responding to requests of users and Assessment of Fees for Unit Supplemental List, and a one-time subscribers for service enhancements.11 Investment Trusts Included in application processing fee of $250 for In addition, Nasdaq states that the Nasdaq’s Mutual Fund Quotation each new fund authorized for either list. NASD maintains a staff and dedicated Service Nasdaq proposes to amend NASD technology to produce the service.12 Rule 7090(a) to provide that UITs April 16, 2002. included in the MFQS will be assessed II. Summary of Comments On December 26, 2000, the National an annual fee of $400 per trust The Commission received one Association of Securities Dealers, Inc. authorized for the News Media Lists, comment letter regarding the 13 (‘‘NASD’’ or ‘‘Association’’), through its proposal. The commenter generally 5 See letter from Edward S. Knight, Executive supported Nasdaq’s proposal but subsidiary, the Nasdaq Stock Market, Vice President and General Counsel, Nasdaq, to recommended a technical change to the Inc. (‘‘Nasdaq’’) filed with the Securities Katherine A. England, Assistant Director, Division proposed rule to ensure that the fee and Exchange Commission of Market Regulation (‘‘Division’’), Commission, dated June 15, 2001 (‘‘Amendment No. 1’’). assessment procedures for UITs operate (‘‘Commission’’), pursuant to section Amendment No. 1 revises the proposal to: (1) correctly. Specifically, the commenter 19(b)(1) of the Securities Exchange Act Establish a $150 fee for replacement Unit recommended that Nasdaq eliminate the 1 Investment Trusts (‘‘UITs’’); and (2) respond to the of 1934 (‘‘Act’’), and Rule 19b–4 requirement in proposed NASD Rule 2 ICI’s comments by adopting the ICI’s suggested thereunder, a proposed rule change to requirements for a replacement UIT. 7090(b) that the replacement UIT be amend NASD Rule 7090, ‘‘Mutual Fund 6 See letter from Edward S. Knight, Vice President similar in ‘‘share class’’ to the replacing Quotation Service’’ (‘‘MFQS’’) to assess and General Counsel, Nasdaq, to Katherine A. UIT because UITs do not issue shares, fees for Unit Investment Trusts (‘‘UITs’’) England, Assistant Director, Division, Commission, dated June 25, 2001 (‘‘Amendment No. 2’’). included in Nasdaq’s MFQS. Amendment No. 2 replaces the text of NASD Rule 10 As originally proposed, NASD Rule 7090(b) The proposed rule change was 7090 proposed in Amendment No. 1 with text eliminated the one-time application fee for a designed to indicate the way that Amendment No. replacing trust if a UIT expired during an annual published for comment in the Federal 1 revises Nasdaq’s original proposal rather than the billing period and was replaced within three Register on February 20, 2001.3 The existing text of NASD Rule 7090. months by a trust that was materially similar in Commission received one comment 7 See letter from Mary M. Dunbar, Vice President, share class and trust objective. As discussed more Office of the General Counsel, Nasdaq, to Katherine fully below, Nasdaq revised its definition of a letter regarding the proposed rule A. England, Assistant Director, Division, replacing trust in response to comments from the change.4 Nasdaq filed Amendment Nos. Commission, dated June 29, 2001 (‘‘Amendment ICI. See Amendment No. 1, supra note 5. In 1, 2, 3, and 4 to the proposal on June No. 3’’). Amendment No. 3 replaces the proposed addition, Nasdaq concluded that it could not offer rule text provided in Amendment No. 2 with rule a full waiver of the $250 application processing fee text that is designed to indicate more clearly the for a replacing trust, as it had originally proposed, way that Amendment No. 1 revises the text of because the number of UITs that potentially would 14 17 CFR 200.30–3(a)(12). NASD Rule 7090 as amended by the original qualify for the application fee waiver was 1 15 U.S.C. 78s(b)(1). proposal. substantially greater than Nasdaq had first 8 anticipated. Accordingly, Nasdaq revised its 2 17 CFR 240.19b–4. See letter from Jeffrey S. Davis, Associate General Counsel, Nasdaq, to Katherine A. England, proposal to impose a $150 application processing 3 See Securities Exchange Act Release No. 43915 Assistant Director, Division, Commission, dated fee for replacements trusts. The $150 fee is a partial (February 1, 2001), 66 FR 10926. February 11, 2002 (‘‘Amendment No. 4’’). waiver of the standard $250 application processing 4 See letter from Barry E. Simmons, Associate Amendment No. 4 provides a more detailed fee. See Amendment No. 1, supra note 5. Counsel, Investment Company Institute (‘‘ICI’’), to explanation of the need for the proposed fees. 11 See Amendment No. 4, supra note 8. Jonathan G. Katz, Secretary, Commission, dated 9 See Securities Exchange Act Release No. 45500 12 See Amendment No. 4, supra note 8. March 13, 2001 (‘‘ICI Letter’’). (March 11, 2002), 67 FR 10946. 13 See ICI Letter, supra note 4. VerDate 11 nor do they have different classes of application processing fee.20 Although DEPARTMENT OF STATE shares. The commenter also Nasdaq had hoped to waive the recommended that Nasdaq revise application processing fee for Bureau of Diplomatic Security, Office proposed NASD Rule 7090(b) to state replacement UITs, Nasdaq concluded Foreign Missions, Diplomatic Motor that ‘‘[i]f a UIT expires by its own terms that it could offer only a $100 fee waiver Vehicles during an annual billing period and is because a significant number of UITs [Public Notice 3995] replaced within three months by a trust will qualify as replacement UITs and that has a materially similar investment because replacement UITs will require Notice of Information Collection Under objective, the replacing trust shall not be significant processing before entry in Emergency Review: Department of charged a one-time application fee.’’14 the MFQS.21 Nasdaq notes that the State, Office of Foreign Missions, In response to the commenter’s Diplomatic Motor Vehicle Office concerns, Nasdaq revised its proposal to application fee supports the Fund Operations personnel who are required Applications for Registration (Mission adopt the commenter’s suggested Vehicle), Registration (Personal requirements for the definition of a to review, record, and enter each fund into the MFQS for subsequent Vehicle), Title, and Replacement ‘‘materially similar’’ replacement Plates; Forms DS–100, DS–101, DS– 15 dissemination to electronic or print trust. 102 and DS–104; OMB Collection subscribers.22 III. Discussion Number 1405–0072 The Commission believes that the After careful review, the Commission proposed fees will support the ACTION: Notice. finds that the proposed rule change is operations of the MFQS and the consistent with the requirements of the SUMMARY: inclusion of UITs in the MFQS. In The Department of State has Act and the rules and regulations submitted the following information addition, the Commission believes that thereunder applicable to a national collection request to the Office of the proposed fees provide for the securities association.16 In particular, Management and Budget (OMB) for the Commission finds that the proposed equitable allocation of fees among review and approval in accordance with rule change is consistent with the persons using the MFQS because the the emergency review procedures of the provisions of section 15A(b)(5)17 of the fees will be assessed to UITs in Paperwork Reduction Act of 1995. Act, which requires that the rules of a proportion to their usage of the MFQS. Type of Request: Emergency Review. national securities association provide Accordingly, the Commission finds that Originating Office: DS/OFM/VTC/V. for the equitable allocation of reasonable the proposal provides for the equitable Title of Information Collection: dues, fees, and other charges among allocation of reasonable dues, fees, and Application for Registration (Mission members and issuers and other persons other charges among persons using a Vehicle), using any facility or system which the system that the NASD operates and Application for Registration (Personal association operates or controls. The controls, consistent with Section Vehicle), Commission notes that the proposed 15A(b)(5). Application for Title, and annual fees for UITs, equal to $400 per Application for Replacement Plates. Finally, as discussed more fully trust authorized for the News Media Frequency: As often as is necessary to above, the Commission notes that Lists and $275 per trust authorized for register vehicles, issue titles and issue the Supplemental List, are identical to Nasdaq revised its proposal to adopt the license plates. the annual fees currently assessed for commenter’s suggested requirements for Form Numbers: DS–100, DS–101, DS– mutual funds included in the MFQS.18 the definition of a ‘‘materially similar’’ 102 & DS–104. Nasdaq states that the annual fees replacement trust. Respondents: Foreign mission support the NASD’s continuous IV. Conclusion personnel assigned to the United States: monitoring of funds’ compliance with diplomatic agents, consular officers, the standards for inclusion in the It is therefore ordered, pursuant to administrative and technical staff, MFQS, for upgrading the technology section 19(b)(2) of the Act,23 that the specified official representatives of used to collect and disseminate the proposed rule change (SR-NASD–00– foreign governments to international MFQS, and for responding to requests of 82), as amended, is approved. organizations, and their dependents. users and subscribers for service Estimated Number of Respondents: enhancements.19 For the Commission by the Division of 18,488. In addition, as described more fully Market Regulation, pursuant to delegated Average Hours Per Response: .5 hours 24 above, if a UIT expires by its own terms authority. (30 minutes). during an annual billing period and is Margaret H. McFarland, Total Estimated Burden: 9,244. replaced within three months by a trust Deputy Secretary. The proposed information collection that is materially similar in investment [FR Doc. 02–9857 Filed 4–22–02; 8:45 am] is published to obtain comments from objective, the replacing trust will be BILLING CODE 8010–01–P the public and affected agencies. charged a one-time application fee of Emergency review and approval of this $150 rather than the standard $250 collection has been requested from OMB by April 15, 2002. If granted, the 14 See ICI Letter, supra note 4. emergency approval is only valid for 15 See Amendment No. 1, supra note 5. 180 days. Comments should be directed 16 In approving this rule, the Commission has considered its impact on efficiency, competition, to the State Department Desk Officer, and capital formation. 15 U.S.C. 78c(f). Office of Information and Regulatory 17 15 U.S.C. 78o–3(b)(5). Affairs, Office of Management and 18 The Commission approved these annual fees 20 See Amendment No. 1, supra note 5. Budget (OMB), Washington, DC 20530, for mutual funds included in the MFQS in 2000. 21 See Amendment No. 4, supra note 8. who may be reached on 202–395–3897. See Securities Exchange Act Release No. 42537 22 (March 16, 2000), 65 FR 15678 (March 23, 2000) See Amendment No. 4, supra note 8. During the first 60 days of this same (order approving File No. SR-NASD–99–77). 23 15 U.S.C. 78s(b)(2). period a regular review of this 19 See Amendment No. 4, supra note 8. 24 17 CFR 200.30–3(a)(12). information collection is also being VerDate 11 undertaken. Comments are encouraged DATES: Comments and related material What Action Is the Coast Guard and will be accepted until 60 days from must reach the Docket Management Taking? the date that this notice is published in Facility on or before June 24, 2002. Section A-VI/4–1 of the Code the Federal Register. The agency ADDRESSES: accompanying the International requests written comments and Please identify your comments and related material by the Convention on Standards of Training, suggestions from the public and affected Certification and Watchkeeping for agencies concerning the proposed docket number of this notice [USCG 2002–12032]. Then, to make sure they Seafarers (STCW), 1978, as amended in collection of information. Your 1995, articulates qualifications for comments are being solicited to permit enter the docket just once, submit them ensuring merchant mariners’ attaining the agency to: by just one of the following means: the minimum standard of competence • Evaluate whether the proposed (1) By mail to the Docket Management through demonstrations of their collection of information is necessary Facility, U.S. Department of proficiency in Medical First Aid. The for the proper performance of the Transportation, room PL–401, 400 Coast Guard tasked MERPAC with functions of the agency, including Seventh Street SW., Washington, DC referring to the Section, modifying and whether the information will have 20590–0001. specifying it as it deemed necessary, practical utility. (2) By delivery to room PL–401 on the • Evaluate the accuracy of the and recommending national Plaza level of the Nassif Building, 400 agency’s estimate of the burden of the performance measures. The Coast Guard Seventh Street SW., Washington, DC, proposed collection, including the has reviewed the measures between 9 a.m. and 5 p.m., Monday validity of the methodology and recommended by MERPAC and has through Friday, except Federal holidays. assumptions used. developed a final set that we are • Enhance the quality, utility, and The telephone number is 202–366– proposing here for use as guidelines for clarity of the information to be 9329. assessing that proficiency. collected. (3) By fax to the Docket Management The guidelines are set up as follows: • Minimize the reporting burden on Facility at 202–493–2251. First we set forth the Competency those who are to respond, including (4) Electronically through the Web within the STCW a mariner must through the use of automated collection site for the Docket Management System demonstrate to meet the STCW section. techniques or other forms of technology. at http://dms.dot.gov. Next we give a series of examples of FOR FURTHER INFORMATION CONTACT: Performance Conditions, a set of Public comments, or requests for In choosing among these means, Performance Behaviors for each additional information, regarding the please give due regard to the recent Performance Condition, and a set of collection listed in this notice should be difficulties with delivery of mail by the Performance Standards for each directed to Attn: Jacqueline D. U.S. Postal Service to Federal facilities. Performance Behavior. Robinson, U.S. Department of State, The Docket Management Facility For example, if the Competency to Office of Foreign Missions, State Annex maintains the public docket for this demonstrate is: ‘‘Apply immediate first 33, Room 218, Washington, DC 20008, Notice. Comments and related material aid in the event of accident or illness on who may be reached on (202) 895–3500. received from the public, as well as board,’’ a Performance Condition for that Competency demonstrating Dated: March 7, 2002. documents mentioned in this Notice, knowledge, understanding, and Theodore Strickler, will become part of this docket and will be available for inspection or copying at proficiency is: In a graded practical Deputy Assistant Secretary, Bureau of exercise, given a simulated non-critical Diplomatic Security, Office of Foreign room PL–401 on the Plaza level of the Missions, Department of State. Nassif Building, 400 Seventh Street patient, * * * A Performance Behavior for that [FR Doc. 02–9928 Filed 4–22–02; 8:45 am] SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, Condition is: * * * the candidate will BILLING CODE 4710–43–P except Federal holidays. You may also perform an initial assessment (primary find this docket on the Internet at survey). http://dms.dot.gov. A Performance Standard for that DEPARTMENT OF TRANSPORTATION The measures proposed here are also Behavior is: The candidate correctly Coast Guard available from Mr. Mark Gould, assesses and treats, within 1 minute, life-threatening conditions, including: [USCG 2002–12032] Maritime Personnel Qualifications Division, Office of Operating and level of responsiveness; breathing; Environmental Standards, Commandant circulation; and severe bleeding. Guidelines for Assessing Merchant If the mariner properly meets all of (G-MSO–1), U.S. Coast Guard Mariners through Demonstrations of the Performance Standards, he or she Headquarters, telephone 202–267–0229, Proficiency in Medical First Aid passes the practical demonstration. If he or e-mail address or she fails to properly carry out any of AGENCY: Coast Guard, DOT. [email protected]. ACTION: Notice of availability and the Standards, he or she fails it. request for comments. FOR FURTHER INFORMATION CONTACT: For Why is the Coast Guard Taking This questions on this Notice or on the Action? SUMMARY: The Coast Guard announces national performance measures the availability of, and seeks public proposed here, e-mail or call Mr. Gould The Coast Guard is taking this action comments on, the national performance where indicated under ADDRESSES. For to comply with STCW, as amended in measures proposed here for use as questions on viewing or submitting 1995 and incorporated into domestic guidelines when mariners demonstrate material to the docket, call Ms. Dorothy regulations at 46 CFR parts 10, 12, and their proficiency in Medical First Aid. Beard, Chief, Dockets, Department of 15 in 1997. Guidance from the These measures were developed from Transportation, telephone 202–366– International Maritime Organization on recommendations and input provided 9329. shipboard assessments of proficiency by the Merchant Marine Personnel suggests that Parties develop standards Advisory Committee (MERPAC). SUPPLEMENTARY INFORMATION: and measures of performance for VerDate 11 practical tests as part of their programs Dated: April 2, 2002. above. Also, you may review public for training and assessing seafarers. Howard L. Hime, dockets on the Internet at http:// Acting Director of Standards, Marine Safety, dms.dot.gov. How May I Participate in This Action? Security and Environmental Protection. FOR FURTHER INFORMATION CONTACT: You may participate in this action by [FR Doc. 02–9833 Filed 4–22–02; 8:45 am] Randall Petersen, Certification submitting comments and related BILLING CODE 4910–15–P Procedures Branch, AIR–110, Aircraft material on the national performance Engineering Division, Aircraft measures proposed here. (Although the Certification Service, Federal Aviation DEPARTMENT OF TRANSPORTATION Coast Guard does not seek public Administration, 800 Independence comment on the measures Federal Aviation Administration Ave., SW., Washington, DC 20591; recommended by MERPAC, as distinct telephone number: (202) 267–9583, fax from the measures proposed here, those [Docket No. FAA–2001–8994] (202) 278–5340. measures are available on the Internet at Proposed Advisory Circular (AC) No. SUPPLEMENTARY INFORMATION: the home page of MERPAC, http:// 21.101–1 Change 1, Advisory Material Comments Invited www.uscg.mil/hq/g-m/advisory/merpac/ for the Establishment of the merpac.htm). These measures are Certification Basis of Changed The FAA invites you to participate in available on the Internet at http:// Aeronautical Products this action by submitting written data, dms.dot.gov, under this docket number views, or arguments. In your comments, [USCG 2002–12032]. They are also AGENCY: Federal Aviation identify AC 21–101–1 Change 1, available from Mr. Gould where Administration (FAA), DOT. Advisory Material for the Establishment indicated under ADDRESSES. If you ACTION: Notice of availability and of the Certification Basis of Changed submit written comments please request for comments. Aeronautical Products, and the include— regulatory docket number specified SUMMARY: This notice announces the previously. Submit them in duplicate to • Your name and address; availability of and request for comments the DOT Rules Docket address specified • The docket number for this Notice on Draft Advisory Circular (AC) 21.101– above. [USCG 2002–12032]; 1 Change 1,dated April 3, 2002, The FAA will consider all comments • Advisory Material for the Establishment received on or before the closing date The specific section of the of the Certification Basis of Changed performance measures to which each for comments before issuing the final Aeronautical Products. This AC AC. The docket is available for public comment applies; and provides guidance for establishing the • inspection before and after the The reason for each comment. certification basis for changes made to comments closing date. You may mail, deliver, fax, or aeronautical products. The FAA has Availability of Rulemaking Documents electronically submit your comments issued a final rule, Type Certification and related material to the Docket Procedures for Changed Products, that You can get an electronic copy of this Management Facility, using an address amends the procedural regulations for document from the Internet by taking or fax number listed in ADDRESSES. the certification of changes made to type the following steps: Please do not submit the same comment certification of aeronautical products. (1) Go to the search function of the or material more than once. If you mail These amendments affect changes Department of Transportation’s or deliver your comments and material, accomplished through either an electronic Docket Management System amended type certificate or a (DMS) web page (http://dms.dot.gov/ they must be on 81⁄2-by-11-inch paper, supplemental type certificate. This and the quality of the copy should be search). proposal AC provides guidance for (2) On the search page, type in the last clear enough for copying and scanning. determining compliance with those four digits of the docket number shown If you mail your comments and material amended procedural regulations for the at the beginning of this document. Click and would like to know whether the certification of all aircraft, aircraft on ‘‘search.’’ Docket Management Facility received engines, and propellers. (3) On the next page, which contains them, please enclose a stamped, self- DATES: Comments must be received on the docket summary information, click addressed postcard or envelope. The or before June 5, 2002. on the item you want to see. Coast Guard will consider all comments ADDRESSES: Address your comments to You can also get an electronic copy and material received during the 60-day using the Internet through the FAA’s comment period. the Docket Management System. U.S. Department of Transportation, Room web page at http://www.faa.gov/avr/ Once we have considered all Plaza 401, 400 Seventh St., SW., arm/nprm/htm or the Federal Register’s comments and related material, we will web page at http://www.access.gpo.gov/ Washington, DC 20590–0001. You must _ publish a final version of the national identify the docket number at the su docs/aces/aces/140.html. performance measures for use as beginning of your comments, and you Background guidelines by the general public. should submit two copies of your Individuals and institutions assessing comments. Final Rule the competence of mariners may refine You may also submit comments On June 7, 2000, the Type the final version of these measures and through the Internet to http://dms/ Certification Procedures for Changed develop innovative alternatives. If you dot.gov. You may review the public Products final rule (65 FR 36244, June vary from the final version of these docket containing comments to these 7, 2000) became effective. The FAA measures, however, you must submit proposed AC in person in the Dockets established a mandatory compliance your alternative to the National Office between 9 a.m. and 5 p.m., date of December 10, 2001, for transport Maritime Center for approval by the Monday through Friday, except Federal category airplanes and restricted Coast Guard under 46 CFR 10.303(e) holidays. The Dockets Office is on the category airplanes that have been before you use it as part of an approved plaza level at the Department of certificated using transport category course or training program. Transportation building at the address standards; and a date of December 9, VerDate 11 2002, for all other category aircraft, that precipitated the delay in extension would have environmental engines, and propellers. The rule implementing the rule until June 10, impacts to Class II waters that are requires, among other things, that an 2003, for all categories of aircraft, protected under Florida state law. Due applicant for a change to a type engines, and propellers. to opposition to the runway extension, certificate must show the changed AC 21.101–1 Change 1, will provide the Environmental Assessment was product complies with the certification guidance for the applicant to comply deferred in 1998. requirements in effect on the date of with the amended regulations for the application. (14 CFR 21.101(a)). The certification of changes to all With support from the FAA and the rule also states the applicant may show aeronautical products. This AC will Florida Department of Transportation the changed product complies with an supercede Advisory Circular 21.101–1, (FDOT), the Sponsor initiated an effort earlier amendment of a regulation if the dated August 8, 2001. in 1999 to study the feasibility of relocating or expanding the existing Administrator determines the change is Issued in Washington, DC, on April 12, ‘‘not-significant.’’ (14 CFR 21.101(b)(1)). 2002. airport facilities. The Feasibility Study Specifically, determining the David W. Hempe, resulted in a determination that appropriate certification basis for each Manager, Aircraft Engineering Division. relocation of the airport was technically design change requires an assessment feasible. In 2000, the Sponsor completed [FR Doc. 02–9935 Filed 4–18–02; 2:31 pm] against the automatic criteria of a Site Selection Study to assist the BILLING CODE 4910–13–M ‘‘significant’’ as stated in the rule, Sponsor in deciding a preferred location coupled with the Administrator’s of a relocated airport. The Site Selection discretionary right to consider the DEPARTMENT OF TRANSPORTATION Study recommended a preferred site, extent of the changes and related located north of County Road 388, east revisions to the regulations. (14 CFR Federal Aviation Administration of State Road 79, south of State Road 20, 21.101(b)(1)(i) and (ii)). and west of State Road 77. Relocation of On August 8, 2001, the FAA also Intent To Prepare an Environmental the airport to the preferred site is the published AC 21.101–1, providing Impact Statement, Panama City-Bay Sponsor’s proposed project. guidance for the applicant to comply County International Airport, Panama with the amended regulations for the City, Florida On November 7, 2001, the FAA certification of changes to transport published in the Federal Register a category airplanes and restricted AGENCY: Federal Aviation Notice of Intent to prepare an category airplanes that have been Administration, DOT. environmental Assessment to consider certified using transport category ACTION: Notice of Intent. alternatives to meet forecast growth in regulations. SUMMARY: The Federal Aviation aviation demand in the Panama City- During the fifteen months since Administration (FAA) is issuing this Bay County region. Agency and public publishing the rule, FAA, Transport notice to announce to the public that an scoping meetings were held on Canada Civil Aviation, European Joint Environmental Impact Statement (EIS) December 13, 2001. Following review of Aviation Authorities, and industry will be prepared to consider alternatives written comments submitted by developed guidance material in the form to meet forecast growth in aviation agencies and the public, and review of of an advisory circular, a draft FAA available information regarding the Notice, and related training materials. demand in the Panama City-Bay County potential for significant environmental The aviation industry has questioned region. the ability to standardize administrative FOR FURTHER INFORMATION CONTACT: Ms. impacts, including impacts to 1,400– procedures, raising a concern that Virginia Lane, Federal Aviation 1,800 acres of wetlands, the FAA has implementation of the rule may not be Administration, Orlando Airports determined that an Environmental uniform among the aviation District Office, 5950 Hazeltine National Impact Statement (EIS) will be prepared manufacturing communities, both Drive, Suite 400, Orlando, FL 32822– for the project. domestic and international. Based on 5024, 407/812–6331, Extension 29. Alternatives to be considered in the this concern, FAA wants to ensure the SUPPLEMENTARY INFORMATION: The EIS, in addition to the no action implementation procedures for the rule Panama City-Bay County International alternative, will include expansion provide for an equal and balanced Airport (PFN), owned and operated by alternatives at the existing airport site, application for all manufacturers, both the Panama City-Bay County Airport the Sponsor’s proposed project to domestic and international, and do not and Industrial District (Sponsor), is relocate the airport to a new site, and located approximately five miles place an undue burden on FAA Aircraft other reasonable alternatives as northwest of the central business Certification Offices and other civil determined during the FAA’s district of Panama City, Florida. PFN aviation authorities. Accordingly, the alternatives analysis process. The EIS FAA published a delay of all the has two 150-foot wide runways, will evaluate the environmental impacts compliance dates in the rule (66 FR Runway 5–23 and Runway 14–32. of all reasonable alternatives, including 56989, November 14, 2001) to June 10, Runway 5–23 measures 4,888 feet in 2003. length and is primarily used by general the evaluation of environmental impacts aviation aircraft. Runway 14–32, with a related to noise, air quality, water Advisory Circular (AC) length of 6,304 feet, serves as the quality, land use, wetlands, ecological To ensure a uniform application of primary runway for commercial airline resources, floodplains, hazardous this rule as it pertains to FAA’s service at PFN. materials, historic and archaeological determination of ‘‘significant’’ and ‘‘not- During the 1990s, an Environmental resources, environmental justice significant’’ design changes, FAA has Assessment was initiated by the floodplains, and farmlands. worked closely with the Joint Aviation Sponsor to consider alternatives to Questions may be directed to the Authorities and Transport Canada Civil provide an 8,000-foot runway at PFN. Aviation to develop AC 21.101–1 This study recommended an extension individual named above under the Change 1. This advisory circular of Runway 14–32 to the northwest into heading FOR FURTHER INFORMATION addresses the standardization concerns Goose Bayou. However, the proposed CONTACT. VerDate 11 Issued in Orlando, Florida, April 9, 2002. Rulemaking (ARM–1), Federal Aviation ACTION: Notice of petitions for W. Dean Stringer, Administration, 800 Independence exemption received. Manager, Orlando Airports Districts Office. Avenue, SW., Washington, DC 20591. SUMMARY: [FR Doc. 02–9853 Filed 4–22–02; 8:45 am] Tel. (202) 267–7271. Pursuant to FAA’s rulemaking provisions governing the application, BILLING CODE 4910–13–M This notice is published pursuant to 14 CFR 11.85 and 11.91. processing, and disposition of petitions for exemption part 11 of Title 14, Code Issued in Washington, DC, on April 18, DEPARTMENT OF TRANSPORTATION 2002. of Federal Regulations (14 CFR), this notice contains a summary of certain Donald P. Byrne, Federal Aviation Administration petitions seeking relief from specified Assistant Chief Counsel for Regulations. requirements of 14 CFR. The purpose of [Summary Notice No. PE–2002–33] Petitions for Exemption this notice is to improve the public’s awareness of, and participation in, this Petitions for Exemption; Summary of Docket No.: FAA–2002–11888. aspect of FAA’s regulatory activities. Petitions Received Petitioner: Comair, Inc. Section of 14 CFR Affected: 14 CFR Neither publication of this notice nor AGENCY: Federal Aviation 121.463(c). the inclusion or omission of information Administration (FAA), DOT. Description of Relief Sought: To in the summary is intended to affect the ACTION: Notice of petitions for permit Comair to allow the required 5 legal status of any petition or its final exemption received. hours of dispatcher operating disposition. SUMMARY: Pursuant to FAA’s rulemaking familiarization time of 5 hours for the DATES: Comments on petitions received provisions governing the application, Canadiar Regional Jet CL–65 (CL–65) must identify the petition docket processing, and disposition of petitions aircraft to fulfill the dispatcher number involved and must be received for exemption part 11 of Title 14, Code operating familiarization time on or before May 13, 2002. of Federal Regulations (14 CFR), this requirement for the CL–65 and the ADDRESSES: Send comments on any notice contains a summary of certain Embraer EMB–120 Brasilia aircraft petition to the Docket Management petitions seeking relief from specified (EMB–120), provided the dispatcher has System, U.S. Department of requirements of 14 CFR. The purpose of been previously qualified on the EMB– Transportation, Room Plaza 401, 400 this notice is to improve the public’s 120 and is undergoing recurrent Seventh Street, SW., Washington, DC awareness of, and participation in, this training. 20590–0001. You must identify the aspect of FAA’s regulatory activities. Docket No.: FAA–2001–11253. docket number FAA–200X–XXXXX at Neither publication of this notice nor Petitioner: Tyketube Industries, Inc. the beginning of your comments. If you the inclusion or omission of information Section of 14 CFR Affected: 14 CFR wish to receive confirmation that FAA in the summary is intended to affect the 91.107(a)(3)(iii)(B) and (a)(3)(iii)(C)(3); received your comments, include a self- legal status of any petition or its final 121.311(b)(1), (b)(2)(ii), and (c)(1); addressed, stamped postcard. disposition. 125.211(b)(2)(ii)(B), (b)(2)(ii)(C), You may also submit comments (b)(2)(ii)(D), (c)(1), and (c)(2)(iv); and DATES: through the Internet to http:// Comments on petitions received 135.128(a)(2)(ii)(B), (a)(2)(ii)(C), must identify the petition docket dms.dot.gov. You may review the public (a)(2)(ii)(D), and (b). docket containing the petition, any number involved and must be received Description of Relief Sought: To on or before May 13, 2002. comments received, and any final permit any person who operates any disposition in person in the Dockets ADDRESSES: Send comments on any aircraft, and any person on board any Office between 9:00 a.m. and 5:00 p.m., petition to the Docket Management U.S.-registered civil aircraft to use an Monday through Friday, except Federal System, U.S. Department of onboard infant restraint device (U.S. holidays. The Dockets Office (telephone Transportation, Room Plaza 401, 400 patent No. 5,224,229) that: 1–800–647–5527) is on the plaza level Seventh Street, SW., Washington, DC 1. Is not manufactured to U.S. of the NASSIF Building at the 20590–0001. You must identify the standards and that does not conform to Department of Transportation at the docket number FAA–200X–XXXXX at all applicable Federal motor vehicle above address. Also, you may review the beginning of your comments. If you safety standards; public dockets on the Internet at http:/ wish to receive confirmation that FAA 2. Is not manufactured to U.S. /dms.dot.gov. received your comments, include a self- standards and is not certified for use in FOR FURTHER INFORMATION CONTACT: addressed, stamped postcard. motor vehicles and aircraft; and Sandy Buchanan-Sumter, Office of You may also submit comments 3. Has not been accepted by the FAA Rulemaking (ARM–1), Federal Aviation through the Internet to http:// during all phases of flight, including Administration, 800 Independence dms.dot.gov. You may review the public critical phases of flight. docket containing the petition, any Avenue, SW., Washington, DC 20591. comments received, and any final [FR Doc. 02–9944 Filed 4–22–02; 8:45 am] Tel. (202) 267–7271. disposition in person in the Dockets BILLING CODE 4910–13–P This notice is published pursuant to Office between 9:00 a.m. and 5:00 p.m., 14 CFR 11.85 and 11.91. Monday through Friday, except Federal DEPARTMENT OF TRANSPORTATION Issued in Washington, DC, on April 18, holidays. The Dockets Office (telephone 2002. 1–800–647–5527) is on the plaza level Federal Aviation Administration Donald P. Byrne, of the NASSIF Building at the Assistant Chief Counsel for Regulations. Department of Transportation at the [Summary Notice No. PE–2002–32] above address. Also, you may review Petitions for Exemption Petitions for Exemption; Summary of public dockets on the Internet at Docket No.: FAA–2002–11565. Petitions Received http://dms.dot.gov. Petitioner: Franklin P. Toups. FOR FURTHER INFORMATION CONTACT: AGENCY: Federal Aviation Section of 14 CFR Affected: 14 CFR Sandy Buchanan-Sumter, Office of Administration (FAA), DOT. §§ 61.65(a)(1) and 61.153(d)(1). VerDate 11 Description of Relief Sought: To when addressing new flightdeck designs 4. Recommend revisions to AC 25–11 permit Franklin P. Toups to take a and the latest display technologies via and ACJ 25–11. single check ride to obtain his ATP and special conditions and issue papers. a. Review AC 25–11 and ACJ 25–11 to instrument rating. Advisory Circular (AC) 25–11, develop harmonized advisory material. Transport Category Airplane Electronic [FR Doc. 02–9945 Filed 4–22–02; 8:45 am] The harmonized guidance material may Display Systems, contains guidance for be significantly different from the BILLING CODE 4910–13–P demonstrating compliance with existing material, but it must not § 25.1322. The scope of the AC, which conflict with the harmonized § 25.1322 DEPARTMENT OF TRANSPORTATION was published July 16, 1987, is limited standard. and pertains strictly to cathode ray tube b. Coordinate with other Federal Aviation Administration (CRT) based electronic display systems harmonization working groups in used for guidance, control, or decision revising the advisory material. The Aviation Rulemaking Advisory making by the flightcrew. The guidance Human Factors HWG is currently Committee; Transport Airplane and is clearly outdated in view of the working a similar activity and should be Engine Issues—New Task computer-based and other advanced consulted to ensure that any revised technological instruments used in material has appropriate input and AGENCY: Federal Aviation transport category airplanes today. Administration (FAA) (DOT). influence from the human factors Any rule or advisory circulars that discipline. Review and revision of the ACTION: Notice of new task assignment results from this action would affect all powerplant-related sections of AC 25– for the Aviation Rulemaking Advisory new transport airplanes that are 11 should be delegated to the Committee (ARAC). certified to part 25/Joint Aviation Powerplant Installation HWG. The Requirements 25 (JAR–25). Both the SUMMARY: The FAA assigned four new Flight Test HWG should review the FAA and industry agree that § 25.1322 flight test related sections. tasks to the Aviation Rulemaking is not appropriate for the current or c. Prepare a ‘‘user needs analysis’’ that Advisory Committee to develop future flightdeck design and the addresses some unique requirements recommendations that will broaden technologies associated with visual and that are not fully met by the current current regulations and advisory aural annunciations to the flightcrew. guidance. (For example, manufacturers material to include state-of-the-art This outdated regulation results in a and installers of liquid crystal display flightdeck displays and new potentially significant effect on airplane based systems are considered ‘‘users’’ technologies to aid flight crewmembers design, product design and technical whose needs may not currently be met.) in decision making. This notice is to standard orders, system integration, inform the public of this ARAC activity. airplane type certifications and d. Review other advisory circulars FOR FURTHER INFORMATION CONTACT: supplemental type certifications, costs (such as AC’s/ACJ’s for various systems) Mike Kaszycki, Federal Aviation associated with certifications, and and other industry documents to Administration, Northwest Mountain flightcrew operation on airplane safety. understand their relevance to AC 25–11. Region Headquarters, 1601 Lind Additionally, recent industry activities Tasking Statement Avenue, SW., Renton, Washington, have produced materials (for example, 98055; telephone: 425–227–2137; fax: For the problem described above, the Aviation Recommended Practices) that 425–277–1320; e-mail: FAA tasked the ARAC 1 to: may be useful in developing the [email protected]. 1. Review and recommend revisions harmonized AC. § 25.1322 that are necessary to bring the e. Recommend a format of the SUPPLEMENTARY INFORMATION: safety standards up-to-date; make the advisory circulars that can Background standards more appropriate for accommodate future changes. The addressing current and future flightdeck current AC/ACJ format is not conducive Problem design and technologies associated with to additions as new systems are Title 14 Code of Federal Regulations visual and aural annunciation; and developed, new functions are identified, § 25.1322 describes standards for the address prioritization of multiple alerts and new technologies are employed. color of warning, caution, advisory, and that may occur at the same time. At a The revised harmonized AC/ACJ should other message lights that are installed as minimum, the recommendations must be formatted to accommodate future annunciation displays in the flightdeck. consider airworthiness, safety, cost, changes. It addresses visual alerting cues only in recent certification and fleet experience, For each task, ARAC is to review the form of colored lights installed in and harmonization of JAR 25.1322. airworthiness, safety, cost, and other the flightdeck. The regulation became 2. Review the existing Advisory relevant factors, including recent effective February 1 1977 (Amendment Circular Joint (ACJ) 25.1322 and certification and fleet experience. ARAC No. 25–38, 41 FR 44567, December 20, determine if a harmonized AC 25.1322 will submit a report to the FAA (format 1976) and has never been amended. It should be developed. and content to be determined by the does not consider the use of 3. Identify any rules or advisory FAA) that recommends revisions to the corresponding aural tones/voice and circulars that may conflict with the regulation, including cost estimates, and prioritization of multiple alerts that may revised rule to determine if changes outlines the information and occur at the same time. Nor, does it should be developed and address the background for the advisory circulars. consider new technologies, other than proposed changes to §§ 25.1309 and If a notice of proposed rulemaking or colored lights, that may be more 25.1329 that pertain to alerting. notices of proposed advisory circulars effective in aiding the flightcrew in are published for public comment as a 1 In 1992, the FAA established the ARAC to decision making. Further, § 25.1322 is provide advice and recommendations to the FAA result of the recommendations, ARAC outdated, does not address safety Administrator on the agency’s rulemaking activities may be further asked to review all concerns associated with today’s with respect to aviation-related issues. This comments received and provide the display systems, and has resulted in includes obtaining advice and recommendations on FAA with a recommendation for the FAA’s commitments to harmonize Title 14 of additional work for applicants when the Code of Federal Regulations (14 CFR) with its disposition of public comments for each showing compliance, and for the FAA partners in Europe and Canada. project. VerDate 11 Schedule: The report and draft will be advised whether their request Airport under the provisions of the 49 advisory circular is to be completed no can be accommodated. U.S.C. 40117 and part 158 of the Federal later than 24 months after the FAA Individuals chosen for membership Aviation Regulations (14 CFR part 158). publishes the tasks in the Federal on the working group must represent DATES: Comments must be received on Register. their aviation community segment and or before May 23, 2002. actively participate in the working ARAC Acceptance of Tasks ADDRESSES: Comments on this group (e.g., attend all meetings, provide application may be mailed or delivered ARAC accepted and assigned the task written comments when requested to do in triplicate to the FAA at the following to the Avionics Systems Harmonization so, etc.). They must devote the resources address: Memphis Airports District Working Group. The working group necessary to support the working group Office, 3385 Airways Blvd., Suite 302, serves as staff to ARAC and assists in in meeting any assigned deadlines. Memphis, Tennessee 38116–3841. the analysis of the assigned task. ARAC Members are expected to keep their In addition, one copy of any must review and approve each working management chain and those they may comments submitted to the FAA must group’s recommendations. If ARAC represent advised of working group be mailed or delivered to Rodney accepts the working group’s activities and decisions to ensure the Hendrix, Executive Director of the recommendations, it will forward them proposed technical solutions do not Jackson-Madison County Airport to the FAA. Recommendations that are conflict with their sponsoring Authority at the following address: 308 received from ARAC will be submitted organization’s position when the subject Grady Montgomery Drive, Jackson, to the agency’s Rulemaking being negotiated is presented to ARAC Tennessee 38301. Management Council to address the for approval. Air carriers and foreign air carriers availability of resources and Once the working group has begun may submit copies of written comments prioritization. deliberations, members will not be previously provided to the Jackson- added or substituted without the Working Group Activity Madison County Airport Authority approval of the assistant chair, the under section 158.23 of part 158. assistant executive director, and the The Avionics System Harmonization FOR FURTHER INFORMATION CONTACT: Working Group must comply with the working group co-chairs. Peggy S. Kelley, Program Manager, The Secretary of Transportation procedures adopted by ARAC. As part Memphis Airports District Office, 3385 determined that the formation and use of the procedures, the working group Airways Blvd., Suite 302, Memphis, of the ARAC is necessary and in the must: Tennessee 38116–3841. The application public interest in connection with the 1. Recommend a work plan for may be reviewed in person at this same performance of duties imposed on the completing each task, including the location. rationale supporting such a plan for FAA by law. SUPPLEMENTARY INFORMATION: The FAA consideration at the October 15–16, Meetings of the ARAC will be open to proposes to rule and invites public 2002, meeting of the ARAC on transport the public. Meetings of the Avionics comment on the application to impose airplane and engine issues. Systems Harmonization Working Group and use the revenue from a PFC at 2. Give a detailed conceptual will not be open to the public, except to the extent that individuals with an McKeller-Sipes Airport under the presentation of the proposed provisions of the 49 U.S.C. 40117 and recommendations before proceeding interest and expertise are selected to participate. The FAA will make no part 158 of the Federal Aviation with the work stated in item 3. Regulations (14 CFR part 158). 3. Draft the appropriate documents public announcement of working group meetings. On April 11, 2002, the FAA and required analyses and/or any other determined that the application to related materials or documents. Issued in Washington, DC, on April 11, impose and use the revenue from a PFC 4. Provide a status report at each 2002. submitted by Jackson-Madison County ARAC meeting on transport airplane Anthony F. Fazio, Airport Authority was substantially and engine issues. Executive Director, Aviation Rulemaking complete within the requirements of Advisory Committee. Participation in the Working Group section 158.25 of part 158. The FAA [FR Doc. 02–9947 Filed 4–22–02; 8:45 am] will approve or disapprove the The Avionics Systems Harmonization BILLING CODE 4910–13–M application, in whole or in part, no later Working Group is composed of than July 26, 2002. technical experts having an interest in The following is a brief overview of the assigned tasks. A working group DEPARTMENT OF TRANSPORTATION the application. member need not be a representative or Proposed charge effective date: a member of the full committee. Federal Aviation Administration October 1, 2002. An individual who has expertise in Notice of Intent to Rule on Application Proposed charge expiration date: May the subject matter and wishes to become 02–01–C–00–MKL To Impose and Use 31, 2010. a member of the working group should the Revenue From a Passenger Facility Level of the proposed PFC: $4.50. write to the person listed under the Total estimated PFC revenue: Charge (PFC) at McKeller-Sipes caption FOR FURTHER INFORMATION $332,248. Airport, Jackson, TN CONTACT expressing that desire, Brief description of proposed describing his or her interest in the task, AGENCY: Federal Aviation project(s): Reimbursement of Sponsor’s and stating the expertise he or she Administration (FAA), DOT. share of completed planning, airfield, would bring to the working group. All ACTION: Notice of intent to rule on equipment and terminal projects requests to participate must be received application. including: Master Plan Update, Aircraft no later than (1 month after publication Rescue and Firefighting vehicle, taxiway of the tasking statement). The requests SUMMARY: The FAA proposes to rule and construction and rehabilitation, apron will be reviewed by the assistant chair, invites public comment on the improvements, taxiway lighting, the assistant executive director, and the application to impose and use the fencing, drainage improvements, working group co-chairs. Individuals revenue from a PFC at McKeller-Sipes terminal renovation and addition, PAPI VerDate 11 installation, airfield signage and Electronic Access recognize the colors of traffic signals lighting, relocation of Rotating Beacon, You may see all the comments online and devices showing standard red, runway pavement rehabilitation and through the Document Management green, and amber (49 CFR 391.41(b)(10). Since 1992, the Federal Highway acquisition of land and construction of System (DMS) at: http://dmses.dot.gov. runway safety area. Administration (FHWA) has undertaken Class or classes of air carriers which Background studies to determine if this vision the public agency has requested not be Thirty-six individuals petitioned standard should be amended. The final required to collect PFCs: Non- FMCSA for an exemption from the report from our medical panel recommends changing the field of scheduled/on-demand air carriers filing vision requirement in 49 CFR vision standard from 70° to 120°, while Form 1800–31. 391.41(b)(10), which applies to drivers leaving the visual acuity standard Any person may inspect the of commercial motor vehicles (CMVs) in unchanged. (See Frank C. Berson, M.D., application in person at the FAA office interstate commerce. They are: Louis N. Mark C. Kuperwaser, M.D., Lloyd Paul listed above under FOR FURTHER Adams, Guy M. Alloway, Lyle H. Aiello, M.D., and James W. Rosenberg, INFORMATION CONTACT and at the FAA Banser, Paul R. Barron, Lloyd J. M.D., ‘‘Visual Requirements and regional Airports office located at: 1701 Botsford, Joseph E. Buck, Sr., Ronald M. Commercial Drivers,’’ October 16, 1998, Columbia Avenue, College Park, Georgia Calvin, Rusbel P. Contreras, Timothy J. filed in the docket, FHWA–98–4334.) 30337. Droeger, Robert A. Fogg, Paul D. The panel’s conclusion supports In addition, any person may, upon Gaither, David L. Grajiola, David L. FMCSA’s (and previously the FHWA’s) request, inspect the application, notice Gregory, Walter D. Hague, Jr., Sammy K. view that the present standard is and other documents germane to the Hines, Jeffrey J. Hoffman, Marshall L. reasonable and necessary as a general application in person at the Jackson- Hood, Edward W. Hosier, Edmond L. standard to ensure highway safety. Madison County Airport Authority, 308 Inge, Sr., James A. Johnson, Charles F. FMCSA also recognizes that some Grady Montgomery Drive, Jackson, Koble, Robert W. Lantis, Lucio Leal, drivers do not meet the vision standard, Tennessee 38301. Terry W. Lytle, Earl R. Mark, James J. but have adapted their driving to Issued in Memphis, Tennessee on April 11, McCabe, Richard W. Neyens, Anthony accommodate their vision limitation 2002. G. Parrish, Bill L. Pearcy, Robert H. and demonstrated their ability to drive Charles L. Harris, Rogers, Bobby C. Spencer, Mark J. safely. Assistant Manager, Memphis Airports District Stevwing, Clarence C. Trump, Jr., The 36 applicants fall into this Office, Southern Region. Dennis R. Ward, Frankie A. Wilborn, category. They are unable to meet the [FR Doc. 02–9852 Filed 4–22–02; 8:45 am] and Jeffrey L. Wuollett. vision standard in one eye for various Under 49 U.S.C. 31315 and 31136(e), BILLING CODE 4910–13–M reasons, including amblyopia, macular FMCSA may grant an exemption for a 2- scars, and loss of an eye due to trauma. year period if it finds ‘‘such exemption In most cases, their eye conditions were DEPARTMENT OF TRANSPORTATION would likely achieve a level of safety not recently developed. All but nine of that is equivalent to, or greater than, the the applicants were either born with Federal Motor Carrier Safety level that would be achieved absent their vision impairments or have had Administration such exemption.’’ The statute also them since childhood. The nine allows the agency to renew exemptions individuals who sustained their vision [Docket No. FMCSA–2001–11426] at the end of the 2-year period. conditions as adults have had them for Accordingly, FMCSA has evaluated the periods ranging from 6 to 42 years. Qualification of Drivers; Exemption 36 petitions on their merits and made a Although each applicant has one eye Applications; Vision determination to grant the exemptions which does not meet the vision standard to all of them. On March 7, 2002, the in 49 CFR 391.41(b)(10), each has at AGENCY: Federal Motor Carrier Safety agency published notice of its receipt of least 20/40 corrected vision in the other Administration (FMCSA), DOT. applications from these 36 individuals, eye and, in a doctor’s opinion, has ACTION: Notice of final disposition. and requested comments from the sufficient vision to perform all the tasks public (67 FR 10471). The comment necessary to operate a CMV. The SUMMARY: FMCSA announces its period closed on April 8, 2002. Four doctors’ opinions are supported by the decision to exempt 36 individuals from comments were received, and their applicants’ possession of valid the vision requirement in 49 CFR contents were carefully considered by commercial driver’s licenses (CDLs) or 391.41(b)(10). FMCSA in reaching the final decision to non-CDLs to operate CMVs. Before DATES: April 23, 2002. grant the petitions. issuing CDLs, States subject drivers to knowledge and performance tests Vision And Driving Experience of the FOR FURTHER INFORMATION CONTACT: For designed to evaluate their qualifications Applicants information about the vision to operate a CMV. All these applicants exemptions in this notice, Ms. Sandra The vision requirement provides: satisfied the testing standards for their Zywokarte, Office of Bus and Truck A person is physically qualified to State of residence. By meeting State Standards and Operations, (202) 366– drive a commercial motor vehicle if that licensing requirements, the applicants 2987; for information about legal issues person has distant visual acuity of at demonstrated their ability to operate a related to this notice, Mr. Joseph least 20/40 (Snellen) in each eye commercial vehicle, with their limited Solomey, Office of the Chief Counsel, without corrective lenses or visual vision, to the satisfaction of the State. (202) 366–1374, FMCSA, Department of acuity separately corrected to 20/40 The Federal interstate qualification Transportation, 400 Seventh Street, (Snellen) or better with corrective standards, however, require more. SW., Washington, DC 20590. Office lenses, distant binocular acuity of at While possessing a valid CDL or non- hours are from 7:45 a.m. to 4:15 p.m., least 20/40 (Snellen) in both eyes with CDL, these 36 drivers have been e.t., Monday through Friday, except or without corrective lenses, field of authorized to drive a CMV in intrastate Federal holidays. vision of at least 70° in the horizontal commerce, even though their vision SUPPLEMENTARY INFORMATION: meridian in each eye, and the ability to disqualifies them from driving in VerDate 11 interstate commerce. They have driven performance of experienced monocular commerce. Intrastate driving, like CMVs with their limited vision for drivers in the program is better than that interstate operations, involves careers ranging from 6 to 56 years. In the of all CMV drivers collectively. (See 61 substantial driving on highways on the past 3 years, the 36 drivers had 9 FR 13338, 13345, March 26, 1996.) The interstate system and on other roads convictions for traffic violations among fact that experienced monocular drivers built to interstate standards. Moreover, them. Seven of these convictions were with good driving records in the waiver driving in congested urban areas for Speeding. The other convictions program demonstrated their ability to exposes the driver to more pedestrian consisted of: ‘‘Violation of Red Light drive safely supports a conclusion that and vehicular traffic than exists on Signal’’ and ‘‘Improper Turning.’’ Two other monocular drivers, meeting the interstate highways. Faster reaction to drivers were involved in an accident in same qualifying conditions as those traffic and traffic signals is generally a CMV, but did not receive a citation. required by the waiver program, are also required because distances are more The qualifications, experience, and likely to have adapted to their vision compact than on highways. These medical condition of each applicant deficiency and will continue to operate conditions tax visual capacity and were stated and discussed in detail in a safely. driver response just as intensely as March 7, 2002, notice (67 FR 10471). The first major research correlating interstate driving conditions. The Since the docket comments did not past and future performance was done veteran drivers in this proceeding have focus on the specific merits or in England by Greenwood and Yule in operated CMVs safely under those qualifications of any applicant, we have 1920. Subsequent studies, building on conditions for at least 3 years, most for not repeated the individual profiles that model, concluded that accident much longer. Their experience and here. Our summary analysis of the rates for the same individual exposed to driving records lead us to believe that applicants as a group is supported by certain risks for two different time each applicant is capable of operating in the information published at 67 FR periods vary only slightly. (See Bates interstate commerce as safely as he or 10471. and Neyman, University of California she has been performing in intrastate Publications in Statistics, April 1952.) Basis for Exemption Determination commerce. Consequently, FMCSA finds Other studies demonstrated theories of Under 49 U.S.C. 31315 and 31136(e), predicting accident proneness from that exempting these applicants from FMCSA may grant an exemption from accident history coupled with other the vision standard in 49 CFR the vision standard in 49 CFR factors. These factors—such as age, sex, 391.41(b)(10) is likely to achieve a level 391.41(b)(10) if the exemption is likely geographic location, mileage driven and of safety equal to that existing without to achieve an equivalent or greater level conviction history—are used every day the exemption. For this reason, the of safety than would be achieved by insurance companies and motor agency will grant the exemptions for the without the exemption. Without the vehicle bureaus to predict the 2-year period allowed by 49 U.S.C. exemption, applicants will continue to probability of an individual 31315 and 31136(e). be restricted to intrastate driving. With experiencing future accidents. (See We recognize that the vision of an the exemption, applicants can drive in Weber, Donald C., ‘‘Accident Rate applicant may change and affect his/her interstate commerce. Thus, our analysis Potential: An Application of Multiple ability to operate a commercial vehicle focuses on whether an equal or greater Regression Analysis of a Poisson as safely as in the past. As a condition level of safety is likely to be achieved by Process,’’ Journal of American Statistical of the exemption, therefore, FMCSA permitting these drivers to drive in Association, June 1971.) A 1964 will impose requirements on the 36 interstate commerce as opposed to California Driver Record Study prepared individuals consistent with the restricting them to driving in intrastate by the California Department of Motor grandfathering provisions applied to commerce. Vehicles concluded that the best overall drivers who participated in the agency’s To evaluate the effect of these accident predictor for both concurrent vision waiver program. exemptions on safety, FMCSA and nonconcurrent events is the number Those requirements are found at 49 considered not only the medical reports of single convictions. This study used 3 about the applicants’ vision, but also consecutive years of data, comparing the CFR 391.64(b) and include the their driving records and experience experiences of drivers in the first 2 years following: (1) That each individual be with the vision deficiency. To qualify with their experiences in the final year. physically examined every year (a) by for an exemption from the vision Applying principles from these an ophthalmologist or optometrist who standard, FMCSA requires a person to studies to the past 3-year record of the attests that the vision in the better eye present verifiable evidence that he or 36 applicants receiving an exemption, continues to meet the standard in 49 she has driven a commercial vehicle we note that cumulatively the CFR 391.41(b)(10), and (b) by a medical safely with the vision deficiency for 3 applicants have had only two accidents examiner who attests that the individual years. Recent driving performance is and nine traffic violations in the last 3 is otherwise physically qualified under especially important in evaluating years. The applicants achieved this 49 CFR 391.41; (2) that each individual future safety, according to several record of safety while driving with their provide a copy of the ophthalmologist’s research studies designed to correlate vision impairment, demonstrating the or optometrist’s report to the medical past and future driving performance. likelihood that they have adapted their examiner at the time of the annual Results of these studies support the driving skills to accommodate their medical examination; and (3) that each principle that the best predictor of condition. As the applicants’ ample individual provide a copy of the annual future performance by a driver is his/her driving histories with their vision medical certification to the employer for past record of accidents and traffic deficiencies are good predictors of retention in the driver’s qualification violations. Copies of the studies have future performance, FMCSA concludes file, or keep a copy in his/her driver’s been added to the docket. (FHWA–98– their ability to drive safely can be qualification file if he/she is self- 3637) projected into the future. employed. The driver must also have a We believe we can properly apply the We believe the applicants’ intrastate copy of the certification when driving, principle to monocular drivers, because driving experience and history provide for presentation to a duly authorized data from the vision waiver program an adequate basis for predicting their Federal, State, or local enforcement clearly demonstrate the driving ability to drive safely in interstate official. VerDate 11 Discussion of Comments McCabe, Richard W. Neyens, Anthony SUMMARY: Before a Federal agency can FMCSA received three comments in G. Parrish, Bill L. Pearcy, Robert H. collect certain information from the this proceeding. The comments were Rogers, Bobby C. Spencer, Mark J. public, it must receive approval from considered and are discussed below. Stevwing, Clarence C. Trump, Jr., the Office of Management and Budget A letter was received from Babette E. Dennis R. Ward, Frankie A. Wilborn, (OMB). Under new procedures Hosier, stating that drivers who have and Jeffrey L. Wuollett from the vision established by the Paperwork Reduction been driving in the past with visual requirement in 49 CFR 391.41(b)(10), Act of 1995, before seeking OMB impairment should be allowed to subject to the following conditions: (1) approval, Federal agencies must solicit continue operating a CMV as long as That each individual be physically public comment on proposed examined every year (a) by an their eye doctors report that they are collections of information, including ophthalmologist or optometrist who capable of operating a CMV. FMCSA extensions and reinstatements of attests that the vision in the better eye does not believe that vision exemptions previously approved collections. continues to meet the standard in 49 should rest solely on the certification of This document describes one CFR 391.41(b)(10), and (b) by a medical an ophthalmologist or optometrist, for collection of information for which examiner who attests that the individual the reasons stated above under the NHTSA intends to seek OMB approval. is otherwise physically qualified under heading ‘‘Basis for Exemption DATES: Comments must be received on 49 CFR 391.41; (2) that each individual Determination.’’ or before June 24, 2002. provide a copy of the ophthalmologist’s Two individuals wrote in support of or optometrist’s report to the medical ADDRESSES: Direct all written comments granting Mr. Hosier a vision exemption. examiner at the time of the annual to U.S. Department of Transportation The Advocates for Highway and Auto medical examination; and (3) that each Dockets, 400 Seventh Street, SW, Plaza Safety (AHAS) expresses continued individual provide a copy of the annual 401, Washington, DC 20590. Docket No. opposition to FMCSA’s policy to grant medical certification to the employer for NHTSA–02–11585. exemptions from the Federal Motor retention in the driver’s qualification FOR FURTHER INFORMATION CONTACT: Mr. Carrier Safety Regulations, including the file, or keep a copy in his/her driver’s Alan Block, Contracting Officer’s driver qualification standards. qualification file if he/she is self- Technical Representative, Office of Specifically, AHAS: (1) Objects to the employed. The driver must also have a Research and Traffic Records (NTS–31), manner in which FMCSA presents copy of the certification when driving, National Highway Traffic Safety driver information to the public and so it may be presented to a duly Administration, 400 Seventh Street, SW, makes safety determinations; (2) objects authorized Federal, State, or local Room 6240, Washington, DC 20590. to the agency’s reliance on conclusions enforcement official. drawn from the vision waiver program; SUPPLEMENTARY INFORMATION: Under the In accordance with 49 U.S.C. 31315 Paperwork Reduction Act of 1995, (3) claims the agency has misinterpreted and 31136(e), each exemption will be statutory language on the granting of before an agency submits a proposed valid for 2 years unless revoked earlier collection of information to OMB for exemptions (49 U.S.C. 31315 and by FMCSA. The exemption will be 31136(e)); and finally (4) suggests that a approval, it must publish a document in revoked if: (1) The person fails to the Federal Register providing a 60-day recent Supreme Court decision affects comply with the terms and conditions the legal validity of vision exemptions. comment period and otherwise consult of the exemption; (2) the exemption has with members of the public and affected The issues raised by AHAS were resulted in a lower level of safety than addressed at length in 64 FR 51568 agencies concerning each proposed was maintained before it was granted; or collection of information. The OMB has (September 23, 1999), 64 FR 66962 (3) continuation of the exemption would (November 30, 1999), 64 FR 69586 promulgated regulations describing not be consistent with the goals and what must be included in such a (December 13, 1999), 65 FR 159 (January objectives of 49 U.S.C. 31315 and 31136. 3, 2000), 65 FR 57230 (September 21, document. Under OMB’s regulations (at If the exemption is still effective at the 5 CFR 1320.8(d)), an agency must ask 2000), and 66 FR 13825 (March 7, 2001). end of the 2-year period, the person may We will not address these points again for public comment on the following: apply to FMCSA for a renewal under (i) Whether the proposed collection of here, but refer interested parties to those procedures in effect at that time. earlier discussions. information is necessary for the proper Issued on: April 18, 2002. performance of the functions of the Conclusion Brian M. McLaughlin, agency, including whether the After considering the comments to the Associate Administrator for Policy and information will have practical utility; docket and based upon its evaluation of Program Development. (ii) The accuracy of the agency’s the 36 exemption applications in [FR Doc. 02–9940 Filed 4–22–02; 8:45 am] estimate of the burden of the proposed accordance with Rauenhorst v. United BILLING CODE 4910–EX–P collection of information, including the States Department of Transportation, validity of the methodology and Federal Highway Administration, 95 assumptions used; F.3d 715 (8th Cir. 1996), FMCSA DEPARTMENT OF TRANSPORTATION (iii) How to enhance the quality, exempts Louis N. Adams, Guy M. utility, and clarity of the information to Alloway, Lyle H. Banser, Paul R. Barron, National Highway Traffic Safety be collected; and Lloyd J. Botsford, Joseph E. Buck, Sr., Administration (iv) How to minimize the burden of Ronald M. Calvin, Rusbel P. Contreras, [U.S. DOT Docket No. NHTSA–02–11585] the collection of information on those Timothy J. Droeger, Robert A. Fogg, Paul who are to respond, including the use D. Gaither, David L. Grajiola, David L. Reports, Forms, and Record Keeping of appropriate automated, electronic, Gregory, Walter D. Hague, Jr., Sammy K. Requirements mechanical, or other technological collection techniques or other forms of Hines, Jeffrey J. Hoffman, Marshall L. AGENCY: National Highway Traffic Hood, Edward W. Hosier, Edmond L. Safety Administration (NHTSA), DOT. information technology, e.g., permitting Inge, Sr., James A. Johnson, Charles F. electronic submission of responses. ACTION: Request for public comment on Koble, Robert W. Lantis, Lucio Leal, In compliance with these proposed collection of information. Terry W. Lytle, Earl R. Mark, James J. requirements, NHTSA asks public VerDate 11 comment on the following proposed In the late 1970s and early 1980s, interviewing the driver. NHTSA collection of information: studies showed CRS use for infants and estimates that the information collection toddlers well below 50 percent. By the would average 8.5 minutes per vehicle. Misuse of Child Restraints mid 1980s, all States had child restraint This equates to an estimated 567 burden Type of Request—New information laws that required children below a hours (4,000 driver participants collection requirement. certain age to travel in approved CRSs. multiplied by 8.5 minutes multiplied by OMB Clearance Number—None. The combination of State laws and 1 information collection). During part of Form Number—This collection of public information and education that time, the driver would be a passive information uses no standard forms. programs was effective to some extent: participant in the information collection Requested Expiration Date of by the mid 1990s restraint use by infants as the study team checks the restraint Approval—December 31, 2003. exceeded 80 percent and restraint use Summary of the Collection of use of the child(ren). The driver by toddlers had reached 60 percent. Yet interview during the information Information—NHTSA proposes to while more infants and toddlers were collect information on misuse of child collection would average 5 minutes in being put into CRSs, studies conducted length (the interview would collect restraint systems (CRS) among the in the past decade have shown general public. The information demographic information as well as alarmingly high rates of misuse of these information concerning drivers’ collection would be conducted at public restraints (80 to over 95 percent). places frequently visited by drivers knowledge, acquisition, and use of child Studies have also found that many safety seats). Thus the number of transporting infants and young children toddlers were being put prematurely (age 8 and younger). Information would estimated reporting burden hours a year into adult seat belts rather than staying on the general public (4,000 driver be collected from sites in six States in convertible seats or graduating to selected to be representative of the participants multiplied by 5 minutes by booster seats. Children are at greater risk 1 interview) would be 333 for the nation as a whole. A total sample of of injury when improperly restrained in 4,000 target vehicles (drivers with proposed study. The respondents would CRSs or prematurely placed into adult not incur any reporting cost from the young children) would be used for the seat belts. In one study, crash-involved study. Participation by drivers would be information collection. The respondents children ages 2 to 5 who were in adult also would not incur any record keeping voluntary. Initial contact would involve seat belts were 3.5 times more likely to a project staff member asking drivers burden or record keeping cost from the suffer significant injury and 4 times information collection. transporting one or more children in the more likely to suffer head injury when selected public setting to participate in compared to crash-involved children in Issued on: April 8, 2002. the information collection, which would the same age group who used child Rose A. McMurray, take place immediately within that safety seats or booster seats. Associate Administrator, Traffic Safety public setting if the driver agrees to The last major (multi-State) data Programs. participate. The information collection collection effort to measure CRS misuse [FR Doc. 02–9858 Filed 4–22–02; 8:45 am] would consist of checking child in a randomly selected general BILLING CODE 4910–59–P restraint use in the vehicle, and population at unadvertised site interviewing the drivers. The interview locations was conducted over six years would be comprised of questions to ago. The environment for child DEPARTMENT OF TRANSPORTATION drivers relating to child passenger passenger safety has changed characteristics, driver socio- significantly since then as a result of National Highway Traffic Safety demographic characteristics, and technological advances, new seating Administration knowledge of proper CRS use. products, regulatory activity, [Docket No. NHTSA 2001–10382; Notice 2] The proposed information collection educational activity, and other factors. It would be anonymous and confidential. is important for NHTSA to identify the International Truck and Engine Drivers would not be asked their name current status of CRS use and misuse Corporation; Denial of Application for nor asked for any other information that among the public. The information will Decision That Noncompliance Is could be used to identify them or their help NHTSA to identify areas where Inconsequential to Motor Vehicle passengers. No information would be efforts need to be targeted and where Safety recorded that could be used to identify new public information and education study participants. campaign strategies may be needed. International Truck and Engine Description of the Need for the Description of the Likely Respondents Corporation (International) of Fort Information and Proposed Use of the (Including Estimated Number, and Wayne, Indiana, has determined that Information—The National Highway Proposed Frequency of Response to the approximately 801 vehicles produced Traffic Safety Administration (NHTSA) Collection of Information)—Under this from January 1, 1986, through January was established to reduce the number of proposed effort, information would be 16, 2001, do not comply with paragraph deaths, injuries and economic losses collected from 4000 randomly selected S5.1 of Federal Motor Vehicle Safety resulting from motor vehicle crashes. As drivers transporting young children. Standard (FMVSS) No. 120, ‘‘Tire part of this statutory mandate, NHTSA Information collection would be Selection and Rims for Motor Vehicles is authorized to conduct research as a conducted in public settings in six other than Passenger Cars.’’ Pursuant to foundation for the development of different States. Each driver would go 49 U.S.C. 30118(d) and 30120(h), motor vehicle standards and traffic through the information collection a International petitioned for a safety programs. single time. determination that this noncompliance Research on the effectiveness of child Estimate of the Total Annual is inconsequential to motor vehicle safety seats has found them to reduce Reporting and Record Keeping Burden safety and filed an appropriate report fatal injury by 71 percent for infants and Resulting from the Collection of pursuant to 49 CFR part 573, ‘‘Defect by 54 percent for toddlers in passenger Information—For each vehicle in the and Noncompliance Reports.’’ cars. For infants and toddlers in light study, information collection would Notice of receipt of the application trucks, the corresponding reductions are consist of checking the restraint use of was published on August 24, 2001, with 58 percent and 59 percent, respectively. children in the vehicle, and a 30-day comment period (66 FR 44663). VerDate 11 NHTSA received no comments on this The agency believes that the true DEPARTMENT OF TRANSPORTATION application. measure of inconsequentiality to motor International built trucks, truck vehicle safety in this case is the effect National Highway Traffic Safety tractors, and buses with 295/75R22.5 of the noncompliance on the safety of Administration tires mounted on 7.50 inch wide rims. the vehicles on which the noncompliant [Docket No. NHTSA 2001–9426, Notice 2] Paragraph S5.1.1 of FMVSS No. 120 tire and rim combination is mounted. requires that vehicles be equipped with According to International, the 801 Mazda Motor Corporation, Grant of rims that are listed as suitable for use heavy duty trucks, truck tractors, and Application for Decision That a with the tires that are mounted on them buses with this FMVSS No. 120 Noncompliance Is Inconsequential to in accordance with paragraph S5.1 of noncompliance are not likely to develop Motor Vehicle Safety FMVSS No. 119, ‘‘New Pneumatic Tires safety consequences. International has Mazda Motor Corporation has for Vehicles other than Passenger Cars.’’ recognized that, compared to tires determined that certain 2000 Mazda Paragraph S 5.1 of FMVSS No. 119 mounted on correctly sized rims, the MPVs do not meet the maximum load refers to the listing of rims that may be tires mounted on rims that are too rating requirements of paragraph S5.1 or used with various tires in the ‘‘Tire and narrow may experience a decrease in the vehicle labeling requirements of Rim Association, Inc. (T&RA) paragraph S5.2 of Federal Motor Vehicle Yearbook’’, or another designated sidewall durability, and may also Safety Standard (FMVSS) No. 120 ‘‘Tire publication. According to T&RA, the experience higher treadwear for tires Selection and Rims for Motor Vehicles approved rim widths for 295/75/R22.5 mounted on the steering axle. Although Other than Passenger Cars.’’ Pursuant to tires are between 8.25 and 9.00 inches. International asserted that these 49 U.S.C. 30118(d) and 30120(h), Mazda The T&RA approved rim widths are differences in tire wear are small and not likely to reduce the safety has petitioned for a determination that based on an engineering guideline this noncompliance is inconsequential stating that the rim width should be 70 performance of the vehicles, the agency does not agree. to motor vehicle safety and has filed an to 80 percent of the tire section width. appropriate report pursuant to 49 CFR International cited a statement in the The purpose of this section of FMVSS part 573, ‘‘Defect and Noncompliance T&RA Yearbook that the effect of using No. 120 is to ensure that trucks and Reports.’’ rims of different than design rim width buses are equipped with rims and tires Notice of receipt of the application is to change the tire section width by 0.1 that are properly matched. The failure of was published on May 1, 2001, with a inch for each 0.25 inch change in rim International to meet the tire and rim 30-day comment period (66 FR 21820). width. The section width for the 295/ matching requirements is a serious NHTSA received no comments on this 75R22.5 tires is 11.43 inches when violation of the design requirements of application. mounted on an 8.25 inch wide rim. The the standard. Granting of this petition Mazda manufactured 19,569 model tire section width is reduced to 11.13 would establish a precedent that the year 2000 MPVs equipped with 15-inch inches when the tires are mounted on a mismatching of tires and rims is tires marked with a load rating that is 7.5 inch wide rim, resulting in a rim acceptable and, therefore, would not appropriate for the vehicle’s width that is about 67 percent or the tire certified rear gross axle weight rating section width. Theoretically, a 7.9 inch undermine the enforceability of these requirements. (GAWR), a noncompliance with wide rim, which is not available (not in paragraph S5.1.2 of FMVSS No. 120. production), would be required for the In consideration of the foregoing, Mazda’s Petition stated that the subject subject tires to meet the T&RA NHTSA has decided that the applicant vehicles were equipped with tires that engineering guideline that the rim width has not met its burden of persuasion, were incorrectly labeled with a load be 70 percent of the tire width. and that the noncompliance may have index of 92S and a maximum load International concluded, therefore, that an adverse effect on the safety of these rating 635 kg, but should have been the 7.5 inch wide rim is 95 percent as vehicles. Accordingly, International’s labeled with a load rating of 94S and a wide as the 7.9 inch wide rim that application is denied and the company maximum load rating of 670 kg. Further would be required for 295/75R22.5 size must provide notification of the review of Mazda’s Petition indicates tires under the 70 percent guideline (but noncompliance, as required by 49 that the P205/65R15 92S original not the width specified in the Year U.S.C. 30118. Also, International must equipment tires manufactured by Book). provide a free remedy of the Dunlop and Yokohama are correctly International stated that the noncompliance for all vehicles bought marked with a maximum load rating of noncompliant mounting of the 295/ by the first purchaser ten calendar years 635 kg. However, both Dunlop and 75R22.5 tires on the 7.5 inch wide rims or less before notice is given, as required Yokohama provided Mazda with is inconsequential to motor vehicle by 49 U.S.C. 30120(g). documentation stating that the subject safety for the following reasons: tires passed the tests required for tires 1. International customers have (49 U.S.C. 301118, 301120; delegations of with a 94S tire load index, which operated vehicles of various model authority at 49 CFR 1.50 and 501.8) corresponds to a maximum load rating types for 15 years with this combination Issued on: April 17, 2002. of 670 kg. For the 2000 Mazda MPV, the of tire and rim, with no reported Stephen R. Kratzke, 670 kg maximum load rating is problems. Associate Administrator for Safety sufficient to meet the requirements of 2. International has corrected its tire Performance Standards. FMVSS No. 120, paragraph S5.1.2, and wheel assembly instruction charts and [FR Doc. 02–9829 Filed 4–22–02; 8:45 am] is sufficient to bear the load for which as of 1/17/01, it will no longer produce BILLING CODE 4910–59–P the vehicle is rated. this non-compliant tire and rim Mazda argued that the noncompliance combination. is inconsequential to motor vehicle 3. Many of these vehicles probably safety because the original equipment have gone through several tire tires, though labeled 635 kg, meet the replacement cycles without reported requirements for tires with a load rating problems. of 670 kg. Additionally, Mazda provided VerDate 11 the purchasers of the subject vehicles equipment tires are replaced, they Issued on: April 17, 2002. with a letter which reads in part as should be replaced with tires with a Stephen R. Kratzke, follows: ‘‘Mazda has learned that on maximum load rating of at least 670 kg, Associate Administrator for Safety some vehicles equipped with Dunlop or or a 94S load index. The letter to the Performance Standards. Yokohama 15″ tires, the size vehicle owners also informed the [FR Doc. 02–9828 Filed 4–22–02; 8:45 am] specification stamped on the side-wall owners that the tire size information in BILLING CODE 4910–59–P of the tire, the driver’s door label and the owner’s manual and on the vehicle the tire specification label in the certification label contains errors and Owner’s Manual is incorrectly marked included corrected owner’s manual DEPARTMENT OF TRANSPORTATION as P205/65R15 92S. The correct tire size insert pages and a revised certification/ is 205/65/R15 94S. Additionally, the National Highway Traffic Safety tire information label. Thus, the agency letter ‘P’ has been removed from the tire Administration size number. As these tires meet the believes that the noncompliant tires ‘94S’ specification, they will not need to would not be a safety problem. [Docket No. NHTSA 2001–10696; Notice 2] be replaced * * * If there is a need to The agency believes the true measure replace any of these tires in the future of inconsequentiality with respect to the Volkswagen of America, Inc., Grant of due to normal wear, please make certain noncompliance with paragraph S5.2(a), Application for Decision of the replacement tires have the ‘94S’ is the likelihood that inappropriate rims Inconsequential Noncompliance rating.’’ may be installed on these vehicles. Volkswagen of America, Inc., Mazda’s petition also stated that the Based on the information provided by (Volkswagen) has determined that company produced 6,036 vehicles with Mazda, the omission of the symbol approximately 225,000 vehicles 15-inch steel rims that are noncompliant designating the publication in which the produced between 1977 and August 6, with the requirements of FMVSS No. rim dimensions can be obtained will not 2001, do not meet the labeling 120, S5.2. These rims are marked with likely result in the use of rims with requirements of paragraph S5.3(b) of the correct size designation, rim dimensions that are not appropriate for Federal Motor Vehicle Safety Standard manufacturer information, and date of the vehicle. The rim size is properly (FMVSS) No. 120 ‘‘Tire Selection and production. However, the rims are not labeled on these rims. The Rims for Motor Vehicles Other than marked with a designation indicating specifications for the significant Passenger Cars.’’ Pursuant to 49 U.S.C. the source of the rims’ published nominal dimensions, as required by dimensions (diameter, width, etc.) of 30118(d) and 30120(h), Volkswagen has S5.2(a), or the ‘‘DOT’’ symbol required 15X6JJ rims listed in the Tire and Rim petitioned for a determination that this by S5.2(c). Association’s 2000 Year Book and the noncompliance is inconsequential to Mazda argued that the noncompliance Japanese Automobile Tire motor vehicle safety and has filed an with S5.2(a) is inconsequential to motor Manufacturers Association’s 2000 Year appropriate report pursuant to 49 CFR vehicle safety because the dimensions Book indicate that the rims are part 573, ‘‘Defect and Noncompliance for the 15X6JJ rim do not vary interchangeable. Since it is highly Reports.’’ significantly among the different unlikely that a replacement rim of the Notice of receipt of the application publication sources. Mazda has proper size and type would have was published, with a 30-day comment compared the dimensions of the 15X6JJ dimensions that are unsuitable for the period, on October 3, 2001, in the rims in the Japanese Automobile Tire Mazda vehicles, the agency believes the Federal Register (66 FR 50499). NHTSA Manufacturers Association and the Tire noncompliance is inconsequential to received no comments. and Rim Association Year Books for the motor vehicle safety. The noncompliant vehicles were produced by Volkswagen AG and were year 2000 and determined that the rims The ‘‘DOT’’ symbol is marked on are interchangeable. According to imported by Volkswagen. The tires, tire rims, motor vehicle equipment Mazda, any rim of the correct size noncompliance relates to MPVs items, and motor vehicles to certify designation (15X6JJ) should be produced and imported under the appropriate for use on the 2000 Mazda compliance with various safety Vanagon and EuroVan model MPV. With respect to the DOT symbol standards. The agency regards the designations. On these vehicles, the marking, Mazda argued that the 15-inch noncompliance with paragraph S5.2(c) manufacturer did not include tire size steel rims comply with all federal as a failure to comply with the and rim designation on the certification requirements that may have an impact certification requirements of 49 U.S.C. label specified by 49 CFR part 567, but on motor vehicle safety and does not 30115, and not a compliance failure rather utilized the option in S5.3(b) of consider this noncompliance to be a requiring notification and remedy. FMVSS 120 to provide that information safety problem. In consideration of the foregoing, on the separate tire information label. In The agency believes the true measure NHTSA has decided that the applicant doing so however, Volkswagen of inconsequentiality in the case of the has met its burden of persuasion that neglected to include the required noncompliance with FMVSS No. 120, the noncompliance with FMVSS No. vehicle GVWR and GAWR information paragraph S5.1.2 is the safety of the 120, paragraphs S5.1 and S5.2, are on the tire information label. vehicles that are in noncompliance and inconsequential to motor vehicle safety. Volkswagen believes that the failure the likelihood that the tires on these of the tire information label to include Accordingly, Mazda’s application is vehicles would be placed in an unsafe, the vehicle weight values is granted and the company is exempted overloaded situation. Mazda received inconsequential to motor vehicle safety from providing the notification of the documents from Yokohama and Dunlop because the weights are included on the noncompliance that would be required stating that the subject tires meet the certification label and both labels are maximum load requirements for tires by 49 U.S.C. 30118, and from remedying mounted on the driver side B-pillar of with a load rating of 670 kg, or a load the noncompliance, as would be the vehicle. index of 94S. Additionally, Mazda required by 49 U.S.C. 30120. Consumers interested in the vehicle informed owners of the subject vehicles (49 U.S.C. 301118, 301120; delegations of weights would be able to find the values via letter that when the original authority at 49 CFR 1.50 and .501.8) on the certification label where they are VerDate 11 included pursuant to the requirements appropriate report pursuant to 49 CFR (49 U.S.C. 30118, 30120; delegation of of Section 567.4. part 573, ‘‘Defect and Noncompliance authority at 49 CFR 1.50 and 501.8) The agency believes the true measure Reports.’’ Issued on: April 17, 2002. of inconsequentiality with respect to the Notice of receipt of the application Stephen R. Kratzke, noncompliance with FMVSS No. 120, was published, with a 30-day comment period, on October 3, 2001, in the Associate Administrator for Safety paragraph S5.3, is whether the GVWR Performance Standards. and GAWR information is readily Federal Register (66 FR 50500). NHTSA [FR Doc. 02–9831 Filed 4–22–02; 8:45 am] available to consumers. One of the received no comments. reasons that FMVSS No.120 requires The noncompliant vehicles were BILLING CODE 4910–59–P that both labels include the GVWR and produced by Audi AG and were GAWR information is the fact that the imported by Volkswagen. The labels need not be located close to one noncompliance relates to MPVs DEPARTMENT OF THE TREASURY another. According to Volkswagen, the produced and imported under the Audi Allroad Quattro model designation. On vehicle certification label, which Fiscal Service includes the GVWR and GAWR, and the these vehicles, the manufacturer did not include tire size and rim designation on tire information label are adjacent to one Surety Companies Acceptable on another on the noncompliant vehicles. the certification label specified by 49 CFR part 567, but rather utilized the Federal Bonds: Name Change and Both labels are mounted on the driver’s Change in State of Incorporation— side B-pillar, negating the need for both option in S5.3(b) of FMVSS 120 to provide that information on the separate Commercial Casualty Insurance labels to include the GVWR and GAWR Company of Georgia information. The agency believes this tire information label. In doing so however, Volkswagen neglected to reduces the likelihood that consumers AGENCY: Financial Management Service, would not be able to locate this include the required vehicle GVWR and GAWR information on the tire Fiscal Service, Department of the information. Treasury. In consideration of the foregoing, information label. Volkswagen believes that the failure NHTSA has decided that the applicant ACTION: Notice. of the tire information label to include has met its burden of persuasion that the vehicle weight values is the noncompliance described is SUMMARY: This is Supplement No. 20 to inconsequential to motor vehicle safety inconsequential to motor vehicle safety. the Treasury Department Circular 570; because the weights are included on the Accordingly, Volkswagen’s application 2001 Revision, published July 2, 2001, certification label and both labels are is hereby granted, and the applicant is at 66 FR 35024. mounted on the driver side B-pillar of exempted from the obligation of the vehicle. Consumers interested in the FOR FURTHER INFORMATION CONTACT: providing notification of, and a remedy vehicle weights would be able to find Surety Bond Branch at (202) 874–6779. for, the noncompliance. the values on the certification label (49 U.S.C. 30118, 30120; delegations of where they are included pursuant to the SUPPLEMENTARY INFORMATION: authority at 49 CFR 1.50 and 501.8) requirements of Section 567.4. Commercial Casualty Insurance Issued on: April 17, 2002. The agency believes the true measure Company of Georgia has formally Stephen R. Kratzke, of inconsequentiality with respect to the changed its name to Commercial Associate Administrator for Safety noncompliance with FMVSS No. 120, Casualty Insurance Company of North Performance Standards. paragraph S5.3, is whether the GVWR Carolina and has redomesticated from [FR Doc. 02–9830 Filed 4–22–02; 8:45 am] and GAWR information is readily the state of Georgia to the state of North Carolina, effective December 21, 2001. BILLING CODE 4910–59–P available to consumers. One of the reasons that FMVSS No.120 requires The Company was last listed as an that both labels include the GVWR and acceptable surety on Federal bonds at 66 DEPARTMENT OF TRANSPORTATION GAWR information is the fact that the FR 35033, July 2, 2001. labels need not be located close to one Federal bond-approving officers National Highway Traffic Safety another. According to Volkswagen, the should annotate their reference copies Administration vehicle certification label, which of the Treasury Circular 570, 2001 includes the GVWR and GAWR, and the [Docket No. NHTSA 2001–10695; Notice 2] revision, on page 35033 to reflect this tire information label are adjacent to one change. Volkswagen of America, Inc., Grant of another on the noncompliant vehicles. Both labels are mounted on the driver’s The Circular may be viewed and Application for Decision of downloaded through the Internet at Inconsequential Noncompliance side B-pillar, negating the need for both labels to include the GVWR and GAWR http://www.fms.treas.gov/c570/ Volkswagen of America, Inc., information. The agency believes this index.html. A hard copy may be (Volkswagen) has determined that reduces the likelihood that consumers purchased from the Government approximately 5,772 vehicles produced would not be able to locate this Printing Office (GPO), Subscription between July 2000 and June 22, 2001, do information. Service, Washington, DC, telephone not meet the labeling requirements of In consideration of the foregoing, (202) 512–1800. When ordering the paragraph S5.3(b) of Federal Motor NHTSA has decided that the applicant Circular from GPO, use the following Vehicle Safety Standard (FMVSS) No. has met its burden of persuasion that stock number: 769–004–04067–1. 120 ‘‘Tire Selection and Rims for Motor the noncompliance described is Questions concerning this notice may Vehicles Other than Passenger Cars.’’ inconsequential to motor vehicle safety. be directed to the U.S. Department of Pursuant to 49 U.S.C. 30118(d) and Accordingly, Volkswagen’s application the Treasury, Financial Management 30120(h), Volkswagen has petitioned for is hereby granted, and the applicant is Service, Funds Management Division, a determination that this exempted from the obligation of Surety Bond Branch, 3700 East-West noncompliance is inconsequential to providing notification of, and a remedy Highway, Room 6F07, Hyattsville, MD motor vehicle safety and has filed an for, the noncompliance. 20782. VerDate 11 Dated: April 11, 2002. Circular from GPO, use the following information. Federal bond-approving Wanda J. Rogers, stock number: 769–004–04067–1. officers should annotate their reference Director, Financial Accounting and Services Questions concerning this notice may copies of the Treasury Circular 570, Division, Financial Management Service. be directed to the U.S. Department of which outlines details as to [FR Doc. 02–9924 Filed 4–22–02; 8:45 am] the Treasury, Financial Management underwriting limitations, areas in which BILLING CODE 4810–35–M Service, Financial Accounting and licensed to transact surety business and Services Division, Surety Bond Branch, other information. Federal bond- 3700 East-West Highway, Room 6F07, approving officers should annotate their DEPARTMENT OF THE TREASURY Hyattsville, MD 20782. reference copies of the Treasury Circular Dated: April 15, 2002. 570, 2001 Revision, at page 35034 to Fiscal Service Wanda J. Rogers, reflect this change. The Circular may be viewed and Surety Companies Acceptable on Director, Financial Accounting and Services Division, Financial Management Service. downloaded through the Internet Federal Bonds: Name Change— (http://fms.trea.gov/c570/index.html). A [FR Doc. 02–9927 Filed 4–22–02; 8:45 am] Chrysler Insurance Company hard copy may be purchased from the BILLING CODE 4810–35–M Government Printing Office (GPO), AGENCY: Financial Management Service, Subscription Service, Washington, DC, Fiscal Service, Department of the DEPARTMENT OF THE TREASURY telephone (202) 512–1800. When Treasury. ordered the Circular from GOP, use the ACTION: Notice. Fiscal Service following stock number: 769–004– 04067–1. SUMMARY: This is Supplement No. 23 to Surety Companies Acceptable on Questions concerning this notice may the Treasury Department Circular 570; Federal Bonds: Name Change— be delivered to the U.S. Department of 2001 Revision, published July 2, 2001, Employers Insurance of Wausau a the Treasury, Financial Management at 66 FR 35024. Mutual Company Service, Financial Accounting and FOR FURTHER INFORMATION CONTACT: Services Division, Surety Bond Branch, Surety Bond Branch at (202) 874–6765. AGENCY: Financial Management Service, 3700 East-West Highway, Room 6F07, Fiscal Service, Department of the SUPPLEMENTARY INFORMATION: Hyattsville, MD 20782. Treasury. CHRYSLER INSURANCE COMPANY, a Dated: April 11, 2002. ACTION: Notice. Micigan corporation, has formally Wanda J. Rogers, changed its name to DaimlerChrysler SUMMARY: This is Supplement No. 21 to Director, Financial Accounting and Services Insurance Company, effective June 30, the Treasury Department Circular 570; Division, Financial Management Service. 2001. The Company was last listed as an 2001 Revision, published July 2, 2001, [FR Doc. 02–9925 Filed 4–22–02; 8:45 am] acceptable surety on Federal bonds at 66 at 66 FR 35024. BILLING CODE 4810–35–M FR 35032, July 2, 2001. FOR FURTHER INFORMATION CONTACT: A Certificate of Authority as an Surety Bond Branch at (202) 874–6765. acceptable surety on Federal bonds, SUPPLEMENTARY INFORMATION: DEPARTMENT OF THE TREASURY dated today, is hereby issued under EMPLOYERS INSURANCE OF Sections 9304 to 9308 of Title 31 of the WAUSAU A Mutual Company, a Fiscal Service United States Code, to DaimlerChrysler Wisconsin corporation, has formally Surety Companies Acceptable on Insurance Company. This new changed its name to Employers Certificate replaces the Certificate of Federal Bonds: Pacific Indemnity Insurance Company of Wausau, Insurance Company Authority issued to the Company under effective November 21, 2001. The its former name. The underwriting Company was last listed as an AGENCY: Financial Management Service, limitation of $19,610,000 established for acceptable surety on Federal bonds at 66 Fiscal Service, Department of the the June 30, 2002. FR 35034, July 2, 2001. Treasury. Certificates of Authority expire on A Certificate of Authority as an ACTION: Notice. June 30, each year, unless revoked prior acceptable surety on Federal bonds, to that date. The Certificates are subject dated today, is hereby issued under SUMMARY: This is Supplement No. 19 to to subsequent annual renewal as long as Sections 9304 to 9308 of Title 31 of the the Treasury Department Circular 570; the Company remains qualified (31 CFR United States Code, to Employers 2001 Revision, published July 2, 2001, part 223). A list of qualified companies Insurance Company of Wausau, at 66 FR 35024. is published annually as of July 1, in the Wausau, Wisconsin. This new FOR FURTHER INFORMATION CONTACT: Department Circular 570, which Certificate replaces the Certificate of Surety Bond Branch at (202) 874–7116. outlines details as to underwriting Authority issued to the Company under SUPPLEMENTARY INFORMATION: A limitations, areas in which licensed to its former name. The underwriting Certificate of Authority as an acceptable transact surety business and other limitation of $5,050,000 established for surety on Federal bonds is hereby information. Federal bond-approving the Company as of July 2, 2001, remains issued to the following Company under officers should annotate their reference unchanged until June 30, 2002. 31 U.S.C. 9304 to 9308. Federal bond- copies of the Treasury Circular 570, Certificates of Authority expire on approving officers should annotate their 2001 Revisions, at page 35032 to reflect June 30, each year, unless revoked prior reference copies of the Treasury Circular this change. to that date. The Certificates are subject 570, 2001 Revision, on page 35050 to The Circular may be viewed and to subsequent annual renewal as long as reflect this addition: downloaded through the Internet at the Company remains qualified (31 CFR Company Name: Pacific Indemnity http://www.fms.treas.gov/c570/ part 223). A list of qualified companies Insurance Company, Business index.html. A hard copy may be is published annually as of July 1, in the Address: 378 W. O’Brien Drive, purchased from the Government Department Circular 570, which Agana, and GU 96932, Phone: (671) Printing Office (GPO), Subscription outlines details as to underwriting 477–8801, Underwriting Limitation Service, Washington, DC, telephone limitations, areas in which licensed to b/: $302,000, Surety Licenses c/: GU. (202) 512–1800. When ordering the transact surety business and other Incorporated In: Guam. VerDate 11 Certificates of Authority expire on approving officers should secure new ([email protected].), Internal June 30 each year, unless revoked prior bonds with acceptable sureties in those Revenue Service, room 6407, 1111 to that date. The Certificates are subject instances where a significant amount of Constitution Avenue, NW., Washington, to subsequent annual renewal as long as liability remains outstanding. In DC 20224. the companies remain qualified (31 CFR addition, in no event, should bonds that SUPPLEMENTARY INFORMATION: part 223). A list of qualified companies are continuous in nature be renewed. Title: Employer’s Annual Railroad is published annually as of July 1 in The Circular may be viewed and Retirement Tax Return. Treasury Department Circular 570, with downloaded through the Internet at OMB Number: 1545–0001. details as to underwriting limitations, http://www.fms.treas.gov/c570/ Form Number: Form CT–1. areas in which licensed to transact index.html. A hard copy may be Abstract: Railroad employers are surety business and other information. purchased from the Government required to file an annual return to The Circular may be viewed and Printing Office (GPO), Subscription report employer and employee Railroad downloaded through the Internet at Service, Washington, DC, telephone Retirement Tax Act (RRTA) taxes. Form http://www.fms.treas.gov/c570. A hard (202) 512–1800. When ordering the CT–1 is used for this purpose. The IRS copy may be purchased from the Circular from GPO, use the following uses the information to insure that the Government Printing Office (GPO) stock number: 769–004–04067–1. employer has paid the correct tax. Subscription Service, Washington, DC, Questions concerning this notice may Current Actions: Telephone (202) 512–1800. When be directed to the U.S. Department of Changes to Form CT–1: ordering the Circular from GPO, use the the Treasury, Financial Management The railroad retirement bill, Act following stock number: 769–004– Service, Financial Accounting and section 203(b), repealed the 04067–1. Services Division, Surety Bond Branch, supplemental annuity work-hour tax Questions concerning this Notice may 3700 East-West Highway, Room 6F07, and the special supplemental annuity be directed to the U.S. Department of Hyattsville, MD 20782. tax (code sections 3221(c) and (d)), the Treasury, Financial Management Dated: April 11, 2002. effective for years beginning after Service, Financial Accounting and Judith R. Tillman, December 31, 2001. Due to the repealed, Services Division, Surety Bond Branch, Assistant Commissioner, Financial Part I of Form CT–1, lines 1 through 4 3700 East-West Highway, Room 6F07, Operations, Financial Management Service. and line 18 were deleted along with the Hyattsville, MD 20782. [FR Doc. 02–9926 Filed 4–22–02; 8:45 am] safe harbor checkbox above line 1. Also, Part II of Form CT–1, the lines for Dated: April 5, 2002. BILLING CODE 4810–35–M Supplemental Annuity Work-Hour Tax Wanda Rogers, each quarter were deleted, and the lines Director, Financial Accounting and Services for Special Supplemental Annuity Tax Division, Financial Management Service. DEPARTMENT OF THE TREASURY for their third quarter were deleted. [FR Doc. 02–9923 Filed 4–22–02; 8:45 am] Internal Revenue Service Type of Review: Revision of a BILLING CODE 4810–35–M currently approved collection. Proposed Collection; Comment Affected Public: Businesses or other Request for Form CT–1 for-profit organizations, not-for-profit DEPARTMENT OF THE TREASURY institutions, and state, local or tribal AGENCY: Internal Revenue Service (IRS), governments. Fiscal Service Treasury. Estimated Number of Respondents: ACTION: Notice and request for 2,387. Surety Companies Acceptable on comments. Federal Bonds: Termination— Estimated Time Per Respondent: 19 Statewide Insurance Company SUMMARY: The Department of the hours, 22 minutes. Treasury, as part of its continuing effort Estimated Total Annual Burden AGENCY: Financial Management Service, to reduce paperwork and respondent Hours: 46,206. Fiscal Service, Department of the burden, invites the general public and The following paragraph applies to all Treasury. other Federal agencies to take this of the collections of information covered ACTION: Notice. opportunity to comment on proposed by this notice: An agency may not conduct or and/or continuing information SUMMARY: This is Supplement No. 22 to sponsor, and a person is not required to collections, as required by the the Treasury Department Circular 570; respond to, a collection of information Paperwork Reduction Act of 1995, 2001 Revision, published July 2, 2001 at unless the collection of information Public Law 104–13 (44 U.S.C. 66 FR 35024. displays a valid OMB control number. 3506(c)(2)(A)). Currently, the IRS is FOR FURTHER INFORMATION CONTACT: Books or records relating to a collection soliciting comments concerning Form Surety Bond Branch at (202) 874–7116. of information must be retained as long CT–1, Employer’s Annual Railroad SUPPLEMENTARY INFORMATION: Notice is as their contents may become material Retirement Tax Return. hereby given that the Certificate of in the administration of any internal Authority issued by the Treasury to the DATES: Written comments should be revenue law. Generally, tax returns and above named Company, under the received on or before June 24, 2002 to tax return information are confidential, United States Code, Title 31, Sections be assured of consideration. as required by 26 U.S.C. 6103. 9304–9308, to qualify as an acceptable ADDRESSES: Direct all written comments Request for Comments surety on Federal bonds is terminated to Glenn P. Kirkland, Internal Revenue effective today. Service, room 6411, 1111 Constitution Comments submitted in response to The Company was last listed as an Avenue NW., Washington, DC 20224. this notice will be summarized and/or acceptable surety on Federal bonds at 66 FOR FURTHER INFORMATION CONTACT: included in the request for OMB FR 35056, July 2, 2001. Requests for additional information or approval. All comments will become a With respect to any bonds, including copies of the form and instructions matter of public record. Comments are continuous bonds, currently in force should be directed to Carol Savage, invited on: (a) Whether the collection of with above listed Company, bond- (202) 622–3945, or through the Internet information is necessary for the proper VerDate 11 performance of the functions of the FOR FURTHER INFORMATION CONTACT: c. Extended Student Work-Study agency, including whether the Nancy J. Kessinger at (202) 273–7079 or Agreement, VA Form 22–8692a–350 information shall have practical utility; FAX (202) 275–5947. hours. (b) the accuracy of the agency’s estimate SUPPLEMENTARY INFORMATION: Under the d. Work-Study Agreement (Student of the burden of the collection of PRA of 1995 (Public Law 104–13; 44 Services), VA Form 22–8692b–1,667 information; (c) ways to enhance the U.S.C., 3501–3520), Federal agencies hours. quality, utility, and clarity of the must obtain approval from the Office of Estimated Average Burden Per information to be collected; (d) ways to Management and Budget (OMB) for each Respondent: 7 minutes. minimize the burden of the collection of collection of information they conduct a. Application for Work-Study information on respondents, including or sponsor. This request for comment is Allowance (38 Up.So.CA. Chapters 30, through the use of automated collection being made pursuant to Section 31, 32 and 35; 10 Up.So.CA Chapter techniques or other forms of information 3506(c)(2)(A) of the PRA. 1606), VA Form 22–8961–10 minutes. technology; and (e) estimates of capital With respect to the following b. Student Work-Study Agreement or start-up costs and costs of operation, collection of information, VBA invites (Student Services), VA Form 22–8692– maintenance, and purchase of services comments on: (1) Whether the proposed 5 minutes. to provide information. collection of information is necessary c. Extended Student Work-Study Approved: April 11, 2002. for the proper performance of VBA’s Agreement, VA Form 22–8692a–3 minutes. Glenn P. Kirkland, functions, including whether the information will have practical utility; d. Work-Study Agreement (Student IRS Reports Clearance Officer. Services), VA Form 22–8692b–5 [FR Doc. 02–9668 Filed 4–22–02; 8:45 am] (2) the accuracy of VBA’s estimate of the burden of the proposed collection of minutes. BILLING CODE 4830–01–M information; (3) ways to enhance the Frequency of Response: On occasion. quality, utility, and clarity of the Estimated Number of Respondents: information to be collected; and (4) 80,000. a. Application for Work-Study DEPARTMENT OF VETERANS ways to minimize the burden of the Allowance (38 Up.So.CA. Chapters 30, AFFAIRS collection of information on respondents, including through the use 31, 32 and 35; 10 Up.So.CA Chapter 1606), VA Form 22–8961–33,000. [OMB Control No. 2900–0209] of automated collection techniques or the use of other forms of information b. Student Work-Study Agreement Proposed Information Collection technology. (Student Services), VA Form 22–8692– 20,000. Activity: Proposed Collection; Titles: Comment Request c. Extended Student Work-Study a. Application for Work-Study Agreement, VA Form 22–8692a–7,000. AGENCY: Veterans Benefits Allowance (38 Up.So.CA. Chapters 30, d. Work-Study Agreement (Student Administration, Department of Veterans 31, 32 and 35; 10 Up.So.CA Chapter Services), VA Form 22–8692b–20,000. Affairs. 1606), VA Form 22–8691. b. Student Work-Study Agreement Dated: April 11, 2002. ACTION: Notice. (Student Services), VA Form 22–8692. By direction of the Secretary: Barbara H. Epps, SUMMARY: The Veterans Benefits c. Extended Student Work-Study Administration (VBA), Department of Agreement, VA Form 22–8692a. Management Analyst, Information Veterans Affairs (VA), is announcing an d. Work-Study Agreement (Student Management Service. opportunity for public comment on the Services), VA Form 22–8692b. [FR Doc. 02–9876 Filed 4–22–02; 8:45 am] proposed collection of certain OMB Control Number: 2900–0209. BILLING CODE 8320–01–P information by the agency. Under the Type of Review: Revision of a Paperwork Reduction Act (PRA) of currently approved collection. 1995, Federal agencies are required to DEPARTMENT OF VETERANS Abstract: AFFAIRS publish notice in the Federal Register a. Eligible veterans, Selected concerning each proposed collection of Reservists, and survivors or dependents [OMB Control No. 2900–0253] information, including each proposed complete VA Form 22–8691 to apply for revision of a currently approved work-study benefits. Proposed Information Collection collection and allow 60 days for public b. VA Form 22–8692 is used by Activity: Proposed Collection; comment in response to the notice. This claimants to request an advance Comment Request notice solicits comments for information payment of work-study allowance. AGENCY: Veterans Benefits needed to determine a claimant’s c. VA Form 22–8692a is used by the Administration, Department of Veterans eligibility for work-study benefits. claimant to extend his or her contract. Affairs. DATES: Written comments and d. A claimant who doesn’t want the ACTION: Notice. recommendations on the proposed work-study advanced allowance collection of information should be payment uses VA Form 22–8692b. SUMMARY: The Veterans Benefits received on or before June 24, 2002. Affected Public: Individuals or Administration (VBA), Department of ADDRESSES: Submit written comments households. Veterans Affairs (VA), is announcing an on the collection of information to Estimated Annual Burden: 9,184. opportunity for public comment on the Nancy J. Kessinger, Veterans Benefits a. Application for Work-Study proposed collection of certain Administration (20S52), Department of Allowance (38 Up.So.CA. Chapters 30, information by the agency. Under the Veterans Affairs, 810 Vermont Avenue, 31, 32 and 35; 10 Up.So.CA Chapter Paperwork Reduction Act (PRA) of NW, Washington, DC 20420 or e-mail: 1606), VA Form 22–8961 ‘‘ 5,500 hours. 1995, Federal agencies are required to [email protected]. Please refer to b. Student Work-Study Agreement publish notice in the Federal Register ‘‘OMB Control No. 2900–0209’’ in any (Student Services), VA Form 22–8692– concerning each proposed collection of correspondence. 1,667 hours. information, including each proposed VerDate 11 extension of a currently approved that contains information that VA ‘‘OMB Control No. 2900–0031’’ in any collection, and allow 60 days for public considers crucial to the evaluation of an correspondence. comment in response to the notice. This underwriter’s experience. The form is FOR FURTHER INFORMATION CONTACT: notice solicits comments for information completed by the lender and the Nancy J. Kessinger at (202) 273–7079 or needed to evaluate a credit lender’s nominee for underwriting and FAX (202) 275–5947. underwriter’s experience. then submitted to VA for approval. SUPPLEMENTARY INFORMATION: Under the DATES: Written comments and Affected Public: Business or other for- recommendations on the proposed profit. PRA of 1995 (Public Law 104–13; 44 collection of information should be Estimated Annual Burden: 1,000 U.S.C. 3501—3520), Federal agencies received on or before June 24, 2002. hours. must obtain approval from the Office of Estimated Average Burden Per Management and Budget (OMB) for each ADDRESSES: Submit written comments Respondent: 20 minutes. collection of information they conduct on the collection of information to Frequency of Response: On occasion. or sponsor. This request for comment is Nancy J. Kessinger, Veterans Benefits Estimated Number of Respondents: being made pursuant to Section Administration (20S52), Department of 3,000. 3506(c)(2)(A) of the PRA. Veterans Affairs, 810 Vermont Avenue, With respect to the following NW, Washington, DC 20420 or e-mail: Dated: April 11, 2002. collection of information, VBA invites [email protected]. Please refer to By direction of the Secretary: comments on: (1) Whether the proposed ‘‘OMB Control No. 2900–0253’’ in any Barbara H. Epps, collection of information is necessary correspondence. Management Analyst, Information Management Service. for the proper performance of VBA’s FOR FURTHER INFORMATION CONTACT: [FR Doc. 02–9877 Filed 4–22–02; 8:45 am] functions, including whether the Nancy J. Kessinger at (202) 273–7079 or information will have practical utility; BILLING CODE 8320–01–P FAX (202) 275–5947. (2) the accuracy of VBA’s estimate of the SUPPLEMENTARY INFORMATION: Under the burden of the proposed collection of PRA of 1995 (Public Law 104–13; 44 DEPARTMENT OF VETERANS information; (3) ways to enhance the U.S.C., 3501–3520), Federal agencies AFFAIRS quality, utility, and clarity of the must obtain approval from the Office of information to be collected; and (4) Management and Budget (OMB) for each [OMB Control No. 2900–0031] ways to minimize the burden of the collection of information on collection of information they conduct Proposed Information Collection respondents, including through the use or sponsor. This request for comment is Activity: Proposed Collection; of automated collection techniques or being made pursuant to Section Comment Request 3506(c)(2)(A) of the PRA. the use of other forms of information With respect to the following AGENCY: Veterans Benefits technology. collection of information, VBA invites Administration, Department of Veterans Title: Veteran’s Supplemental comments on: (1) Whether the proposed Affairs. Application for Assistance in Acquiring collection of information is necessary ACTION: Notice. Specially Adapted Housing, VA Form for the proper performance of VBA’s 26–4555c. functions, including whether the SUMMARY: The Veterans Benefits OMB Control Number: 2900–0031. information will have practical utility; Administration (VBA), Department of Type of Review: Extension of a (2) the accuracy of VBA’s estimate of the Veterans Affairs (VA), is announcing an currently approved collection. burden of the proposed collection of opportunity for public comment on the Abstract: The form is used by Loan information; (3) ways to enhance the proposed collection of certain Guaranty personnel in approving the quality, utility, and clarity of the information by the agency. Under the benefits available under 38 U.S.C. information to be collected; and (4) Paperwork Reduction Act (PRA) of 2101(a). The information requested is ways to minimize the burden of the 1995, Federal agencies are required to necessary in order to determine if it is collection of information on publish notice in the Federal Register economically feasible for a veteran to respondents, including through the use concerning each proposed collection of reside in specially adapted housing and of automated collection techniques or information, including each proposed also to compute the proper grant the use of other forms of information extension of a currently approved amount. collection, and allow 60 days for public technology. Affected Public: Individuals or comment in response to the notice. This Title: Nonsupervised Lender’s households. notice solicits comments for information Nomination and Recommendation of Estimated Annual Burden: 150 hours. Credit Underwriter, VA Form 26–8736a. needed to authorize grants for specially adapted housing for disabled veterans. Estimated Average Burden Per OMB Control Number: 2900–0253. Respondent: 15 minutes. DATES: Written comments and Type of Review: Extension of a Frequency of Response: On occasion. currently approved collection. recommendations on the proposed Estimated Number of Respondents: Abstract: The standards established collection of information should be 600. by VA require that a lender have a received on or before June 24, 2002. qualified underwriter review all loans to ADDRESSES: Submit written comments Dated: April 11, 2002. be closed on an automatic basis to on the collection of information to By direction of the Secretary. determine that the loan meets VA’s Nancy J. Kessinger, Veterans Benefits Barbara H. Epps, credit underwriting standards. To Administration (20S52), Department of Management Analyst, Information determine if the lender’s nominee is Veterans Affairs, 810 Vermont Avenue, Management Service. qualified to make such a determination, NW, Washington, DC 20420 or e-mail: [FR Doc. 02–9878 Filed 4–22–02; 8:45 am] VA has developed VA Form 26–8736a [email protected]. Please refer to BILLING CODE 8320–01–P VerDate 11 Corrections Federal Register Vol. 67, No. 78 Tuesday, April 23, 2002 This section of the FEDERAL REGISTER FEDERAL COMMUNICATIONS DEPARTMENT OF TRANSPORTATION contains editorial corrections of previously COMMISSION published Presidential, Rule, Proposed Rule, Federal Aviation Administration and Notice documents. These corrections are 47 CFR Part 54 prepared by the Office of the Federal 14 CFR Part 39 Register. Agency prepared corrections are issued as signed documents and appear in [CC Docket Nos. 00-256 and 96-45; FCC [Docket No. 2001–CE–42–AD; Amendment the appropriate document categories 02-89] 39–12695; AD 2002–07–01] elsewhere in the issue. Multi-Association Group (MAG) Plan RIN 2120–AA64 for Regulation of Non-Price Cap Incumbent Local Exchange Carriers Airworthiness Directives; Cessna DEPARTMENT OF ENERGY and Interexchange Carriers; Federal- Aircraft Company P206, TP206, TU206, State Joint Board on Universal Service U206, 207, T207, 210, P210, and T210 Stakeholder Forum on Alternative Series Airplanes Technologies to Incineration Correction Correction Correction In rule document 02–7997 beginning on page 15490 in the issue of Tuesday, In rule document 02–7645 beginning In notice document 02–9194 April 2, 2002, make the following on page 15714 in the issue of appearing on page 18600 in the issue of correction: Wednesday April 3, 2002, the table is Tuesday, April 16, 2002, make the corrected make the following correction: §54.903 [Corrected] following correction: §39.13 [Corrected] On page 15493, in the first column, in On page 18600, in the second column, On page 15716, in the first column, in §54.903, in amendatory instruction above the signature line, ‘‘April 18, §39.14, the table should read as set forth numbered 2., in the fourth line, ‘‘March 2002’’ should read ‘‘April 8, 2002’’. below: 18, 2002’’, should read ‘‘April 18, (d) What actions must I accomplish to [FR Doc. C2–9194 Filed 4–22–02; 8:45 am] 2002’’. address this problem? To address this BILLING CODE 1505–01–D [FR Doc. C2–7997 Filed 4–22–02; 8:45 am] problem, you must accomplish the BILLING CODE 1505–01–D following: Actions Compliance Procedures (1) Maintenance Records Check: Within the next 50 hours time-in- No special procedures required to service (TIS) after May 13, 2002 check the logbook. (the effective date of this AD), unless already accomplished. (i) Check the maintenance records to determine whether a hori- zontal stabilizer attachment reinforcement bracket, part number (P/N) 1232624–1, shipped by Cessna from February 27, 1998, through March 17, 2000, is installed. The owner/operator hold- ing at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7) may perform this check. (ii) If, by checking the maintenance records, the owner/operator can positively show that a horizontal stabilizer attachment rein- forcement bracket, P/N 1232624–1, shipped by Cessna from February 27, 1998, through March 17, 2000, is not installed, then the inspection requirement of paragraph (d)(2) and the re- placement requirement of paragraph (d)(3) of this AD do not apply. You must make an entry into the aircraft records that shows compliance with this portion of the AD, in accordance with section 43.9 of the Federal Aviation Regulations (14 CFR 43.9). (2) Inspection: Visually inspect the right and left horizontal stabilizer at- Within the next 50 hours TIS after In accordance with the Accom- tachment reinforcement brackets, part number (P/N) 1232624–1, for May 13, 2002 (the effective date plishment Instructions in Cessna the existence of seam welds along both the lower inboard and out- of this AD), unless already ac- Service Bulletin SEB00-10, board wall/flange. complished. dated November 6, 2000, and the applicable maintenance manual. (3) Replacement: Accomplish any necessary re- In accordance with the Accom- placements prior to further flight plishment Instructions in Cessna after the inspection required by Service Bulletin SEB00–10, paragraph (d)(2) of this AD, un- dated November 6, 2000, and less already accomplished. the applicable maintenance manual. VerDate 11 Actions Compliance Procedures (i) If no seam weld is found along both the lower inboard and out- board wall/flange on the right and left horizontal stabilizer at- tachment reinforcement bracket during the inspection required in paragraph (d)(2) of this AD, replace with a new or airworthy P/N 1232624–1 horizontal stabilizer attachment reinforcement brack- et.. (ii) If the right and left horizontal stabilizer attachment reinforce- ment bracket has seam welds along both the lower inboard and outboard wall/flange, no further action is required. (4) Installation Prohibition: Do not install any P/N 1232624–1 hori- As of May 13, 2002 (the effective Not applicable. zontal stabilizer attachment reinforcement bracket (or FAA-ap- date of this AD). proved equivalent part) unless the bracket:. (i) is inspected as required in paragraph (d)(2) of this AD; and. (ii) has seam welds along both the lower inboard and outboard wall/flange.. [FR Doc. C2–7645 Filed 4–22–02; 8:45 am] DEPARTMENT OF THE TREASURY 6. On page 15482, in the second BILLING CODE 1505–01–D column, in the third full paragraph, the Customs Service second sentence should read, ‘‘This change involves replacing the reference DEPARTMENT OF TRANSPORTATION 19 CFR Part 181 to tariff items ‘‘2106.90.16 and 2106.90.17’’ by a reference to tariff items Federal Aviation Administration [T.D. 02–15] ‘‘2106.90.48 and 2106.90.52’’ within paragraph (c) of subsection (4) under 14 CFR Part 39 RIN 1515–AD08 Section 5 of Part II’’. North American Free Trade Agreement Appendix to Part 181 [Corrected] [Docket No. 99–NM–86–AD; Amendment 39–12699; AD 2002–07–05] Correction 1. On page 15483, in the second column, in the fourth line of paragraph In rule document 02–8053 beginning (4)(i), ‘‘subheading’’ should read RIN 2120–AA64 on page 15480 in the issue of Tuesday, ‘‘subheadings’’. April 2, 2002, make the following 2. On the same page, in the same Airworthiness Directives; Airbus Model corrections: column, in the same paragraph in the A300 B2, A300 B4, A300 B4–600, and 1. On page 15481, in the third fifth line, ‘‘8414.10’’ should read A300 B4–600R Series Airplanes; and column, in the second paragraph, ‘‘8418.10’’. paragraph numbered 4., in the seventh Model A300 F4–605R Airplanes 3. On the same page, in the same line, ‘‘cots’’ should read ‘‘costs ’’. column, under SECTION 7. Correction 2. On page 15482, in the first column, MATERIALS, in paragraph (16)(a) in the ninth line of paragraph numbered In rule document 02–8278 beginning ‘‘materials. ’’ should read ‘‘materials ’’. five, ‘‘cases’’ should read ‘‘case’’. 4. On page 15484, in the first column, on page 16983 in the issue of Tuesday, 3. On the same page, in the same the heading ‘‘SECTION 4.1’’ should read April 9, 2002, make the following column, in the same paragraph, in line ‘‘SECTION 4.1.’’. correction: fourteen, ‘‘or’’ should read ‘‘of’’. 5. On the same page, in the same 4. On the same page, in the same § 39.13 [Corrected] column, under the heading SECTION column, the fifth to the last line of 12, ‘‘A producer of a good, or a person On page 16985, § 39.13, in column 2 paragraph numbered 6., ‘‘year of from whom the producer accquired the of Table 3, in the ninth line,‘‘12,00’’ production of the materials of ’’ should fungible good’’ should read ‘‘An should read ‘‘12,000’’. read ‘‘year of production of the exporter of a good, or a person from materials or’’. [FR Doc. C2–8278 Filed 4–22–02; 8:45 am] whom the exporter acquired the 5. On the same page, in the same BILLING CODE 1505–01–D fungible good ’’. column, in the same paragraph, in the fourth from the last line, ‘‘this’’ should [FR Doc. C2–8053 Filed 4–22–02; 8:45 am] read ‘‘the’’. BILLING CODE 1505–01–D VerDate 11 Part II Department of the Interior 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the San Bernardino Kangaroo Rat; Final Rule VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19812 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations DEPARTMENT OF THE INTERIOR 1993). In coastal southern California, the species’ historical range may have Merriam’s kangaroo rat is the only been larger than we estimated at the Fish and Wildlife Service species of kangaroo rat with four toes on time of listing. each of its hind feet. The San Although the entire area of the 50 CFR Part 17 Bernardino kangaroo rat has a body historical range would not have been RIN 1018–AH07 length of about 95 millimeters (mm) (3.7 occupied at any given time due to inches (in)) and a total length of 230 to hydrological processes and resultant Endangered and Threatened Wildlife 235 mm (9.0 to 9.3 in). The hind foot variation in habitat suitability, the San and Plants; Final Designation of measures less than 36 mm (1.4 in) in Bernardino kangaroo rat was widely Critical Habitat for the San Bernardino length. The body color is pale yellow distributed across the San Bernardino Kangaroo Rat with a heavy overwash of dusky brown. and San Jacinto valleys. By the 1930s, The tail stripes are medium to dark suitable habitat had been reduced to AGENCY: Fish and Wildlife Service, brown and the foot pads and tail hairs approximately 11,200 ha (28,000 ac) Interior. are dark brown. The flanks and cheeks (McKernan 1997). Habitat destruction ACTION: Final rule. of the subspecies are dusky (Lidicker continued such that in 1997 the San 1960). The San Bernardino kangaroo rat Bernardino kangaroo rat was thought to SUMMARY: We, the U.S. Fish and is considerably darker and smaller than occupy only 1,299 ha (3,247 ac) of Wildlife Service (Service), designate either of the other two subspecies of suitable habitat divided unequally critical habitat for the San Bernardino Merriam’s kangaroo rat that occur in among seven locations (McKernan kangaroo rat (Dipodomys merriami southern California, D. merriami 1997). At the time of listing, we parvus) pursuant to the Endangered merriami and D. merriami collinus. The estimated that an additional 5,277 ha Species Act of 1973, as amended (Act). San Bernardino kangaroo rat, endemic (13,193 ac) of habitat distributed within A total of approximately 13,485 hectares to southern California, is one of the the Santa Ana River, Lytle and Cajon (33,295 acres) in San Bernardino and most highly differentiated subspecies of creeks, and San Jacinto River was also Riverside Counties, California, are Merriam’s kangaroo rat and, according likely occupied by the San Bernardino designated as critical habitat for the San to Lidicker (1960), ‘‘it seems likely that kangaroo rat (63 FR 51005). Unlike the Bernardino kangaroo rat. it has achieved nearly species rank.’’ three largest habitat blocks, we did not Critical habitat identifies specific The San Bernardino kangaroo rat, a provide an estimate for additional areas, both occupied and unoccupied, member of the family Heteromyidae, habitat that was likely occupied for the that are essential to the conservation of was first described by Rhoades (1894) smaller remnant populations at City a listed species and that may require under the name Dipodomys parvus from Creek, Etiwanda alluvial fan and wash, special management considerations or specimens collected by R.B. Herron in Reche Canyon, and South Bloomington protection. Reche Canyon, San Bernardino County, (including Jurupa Hills). At the time of Section 7 of the Act prohibits California. Elliot reduced D. parvus to a listing, we discounted approximately destruction or adverse modification of subspecies of D. merriami (D. merriami 1,358 ha (3,396 ac) of the 5,277 ha critical habitat by any activity funded, parvus) in 1901, a taxonomic treatment (13,193 ac) of additional habitat as being authorized, or carried out by any of the species which was confirmed by too mature or degraded to support San Federal agency. Section 4 of the Act Hall and Kelson (1959) and Williams et Bernardino kangaroo rats. Additional requires us to consider economic and al. (1993). The San Bernardino kangaroo research following the listing of the other impacts of specifying any rat appears to be separated from species has indicated that San particular area as critical habitat. Merriam’s kangaroo rat (D. merriami Bernardino kangaroo rats can occupy DATES: This rule is effective May 23, merriami) at the northernmost extent of mature alluvial sage scrub, coastal sage 2002. its range near Cajon Pass by an 8 to 13 scrub, and even chaparral vegetation kilometer (km) (5 to 8 mile (mi)) gap of types (McKernan 2000). Moreover, ADDRESSES: Comments and materials unsuitable habitat. systematic and general biological received, as well as supporting The historical range of this species surveys have resulted in the documentation used in the preparation extends from the San Bernardino Valley documentation of additional of this final rule, are available for public in San Bernardino County to the populations of the San Bernardino inspection, by appointment, during Menifee Valley in Riverside County kangaroo rat, within and outside areas normal business hours at the Carlsbad (Hall and Kelson 1959, Lidicker 1960). previously known to be occupied by the Fish and Wildlife Office, U.S. Fish and Prior to 1960, the San Bernardino species. Consequently, based on Wildlife Service, 2730 Loker Avenue kangaroo rat was known from more than information relative to habitat usage and West, Carlsbad, CA 92008. 25 localities within this range species’ distribution obtained since the FOR FURTHER INFORMATION CONTACT: (McKernan 1993). From the early 1880s listing, we significantly underestimated Field Supervisor, Carlsbad Fish and to the early 1930s, the San Bernardino the amount of area occupied by the Wildlife Office (see ADDRESSES section) kangaroo rat was a common resident of species at the time of listing. Thus, (telephone: 760/431–9440; facsimile the San Bernardino and San Jacinto within the areas designated as critical 760/431–9624). Valleys of southern California (Lidicker habitat, a minimum of approximately SUPPLEMENTARY INFORMATION: 1960). At the time of listing, based on 13,155 ha (32,480 ac) of habitat are the distribution of apparent suitable believed to be occupied by the San Background soils and museum collections of this Bernardino kangaroo rat. The San Bernardino kangaroo rat species, we estimated that the historical On December 8, 2000, we proposed (Dipodomys merriami parvus) is one of range encompassed approximately 22,423 ha (55,408 ac) of lands for 19 recognized subspecies of Merriam’s 130,587 hectares (ha) (326,467 acres designation as critical habitat in the kangaroo rat (D. merriami), a (ac)) (63 FR 51005). Recent studies Santa Ana River (including City and widespread species distributed indicate that the species occupies a Plunge Creeks), Lytle and Cajon Creeks, throughout arid regions of the western wider range of soil and vegetation types San Jacinto River and Bautista Creek, United States and northwestern Mexico than previously thought (Braden and and the Etiwanda alluvial fan (65 FR (Hall and Kelson 1959, Williams et al. McKernan 2000), which suggests that 77178). The areas proposed and refined VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19813 for this final rule are within the known connected populations. Furthermore, evergreen woody shrubs characteristic historical range for this species. small populations are more likely to of both coastal sage scrub and chaparral However, the majority of the remaining experience detrimental effects communities (Smith 1980). San Bernardino kangaroo rat associated with reproduction (e.g., Three phases of alluvial sage scrub populations are primarily found in three genetic drift, inbreeding depression, and have been described: Pioneer, areas, the Santa Ana Wash, the San a loss of genetic variability) and increase intermediate, and mature. The phases Jacinto Wash, and Lytle Creek and Cajon the risk of extinction (Caughley 1994, are thought to correspond to factors Wash. Other smaller populations of the Lacy 1997). Past and ongoing causes of such as flood scour, distance from flood San Bernardino kangaroo rat are fragmentation of San Bernardino channel, time since last flood, and documented in washes and hills in the kangaroo rat habitat include conversion substrate features (Smith 1980, Hanes et areas surrounding the three main of lands to urban, industrial, al. 1989). Under natural conditions, population centers. Several of the areas agricultural, and recreational uses; flood waters periodically break out of containing these smaller populations construction of roads and freeways; and the main river channel in a complex were proposed as critical habitat, but development of flood control structures pattern, resulting in a braided upon re-evaluation were not included in such as dams, levees, detention basins, appearance to the floodplain and a this final designation because they were and channels. The effect of these mosaic of vegetation stages. Pioneer sage determined not to be essential to the human-caused disturbances is three- scrub, the earliest phase, is subject to long-term conservation of the San fold—(1) they reduce the amount of frequent hydrological disturbance and Bernardino kangaroo rat. The basis for suitable habitat for the San Bernardino the sparse vegetation is usually renewed this determination and removing them kangaroo rat, breaking large areas into by frequent floods (Smith 1980, Hanes from the final designation was smaller patches, (2) they act as barriers et al. 1989). The intermediate phase, information indicating that the small to movement between the remaining which is typically found on benches scattered populations or habitats suitable habitat patches, and (3) they between the active channel and mature occurred in areas that were highly disrupt, preclude, or alter natural floodplain terraces, is subject to fragmented by urban and agricultural processes necessary to maintain suitable periodic flooding at longer intervals. development and/or no longer subject to habitat (i.e., sediment scour and The vegetation of early and intermediate hydrological and geomorphological deposition). stages is relatively open, and supports processes that would naturally maintain San Bernardino kangaroo rats are the highest densities of the San alluvial sage scrub vegetation. However, typically found on alluvial fans Bernardino kangaroo rat (McKernan even though we believe that these (relatively flat or gently sloping masses 1997). habitat areas are not essential to the of loose rock, gravel, and sand deposited The oldest, or mature, phase of long-term conservation of the San by a stream as it flows into a valley or alluvial sage scrub is rarely affected by Bernardino kangaroo rat, they are still upon a plain), floodplains, along flooding and supports the highest plant considered important and may assist in washes, in adjacent upland areas density (Smith 1980). Although mature recovery efforts. containing appropriate physical and areas are generally used less frequently Habitat for the San Bernardino vegetative characteristics (McKernan by the kangaroo rats or occupied at kangaroo rat has been severely reduced 1997), and in areas with historic braided lower densities than those supporting and fragmented by development and channels (R. McKernan, Curator, San earlier phases, these areas are essential related activities in the San Bernardino Bernardino County Museum, pers. for the conservation of the species. and San Jacinto valleys, resulting in comm., 2002). These areas consist of Shallow burrows, such as those reduced habitat patch size and sand, loam, sandy loam, or gravelly soils inhabited by the San Bernardino increased distances between patches of (McKernan 1993, Braden and McKernan kangaroo rats, are likely to become suitable habitat. As noted by Andren 2000) that are associated with alluvial inundated or lost due to scour and (1994) in a discussion of highly processes (i.e., the scour and deposition sediment deposition during flooding fragmented landscapes, reduced habitat of clay, silt, sand, gravel, or similar events. Therefore, mature phase alluvial patch size and isolation exacerbate the material by running water such as rivers scrub areas can serve as refugia for San effects of habitat loss on a species’ and streams; debris flows). San Bernardino kangaroo rats from lower persistence (i.e., the loss of species, or Bernardino kangaroo rats also occupy portions of the floodplain during large decline in population size, will be areas where winds contribute to the scale flooding events, and they can greater than expected from habitat loss deposition of sandy soils (e.g., support source populations for alone) and may preclude recolonization northwest of the Jurupa Hills) recolonization of the lower floodplain of suitable habitat following local (McKernan 1997). The soils deposited areas after the flooding has subsided. extirpation events. by alluvial or wind driven processes Due to the dynamic nature of the The loss of native vertebrates, typically support alluvial sage scrub and alluvial floodplain, all three elevations including rodents, due to habitat chaparral vegetation and allow kangaroo within the floodplain and the associated fragmentation is well documented rats to dig simple, shallow burrow phases of alluvial scrub habitat are (Soule´ et al. 1992, Andren 1994, Bolger systems (McKernan 1997). essential to the long-term survival of the et al. 1997). Results of habitat Alluvial sage scrub has been San Bernardino kangaroo. fragmentation on rodents may include described as a variant of coastal sage Alluvial sage scrub vegetation increased extirpation rates due to scrub (Smith 1980) and is also referred includes plant species that are often increased vulnerability to random to as Riversidean alluvial fan scrub, associated with coastal sage scrub, demographic (population characteristics alluvial fan sage scrub, cismontane chaparral, or desert transition such as age and sex structure) and alluvial scrub, alluvial fan scrub, or by communities. Common plant species environmental events (Hanski 1994, Holland (1986) as Riversidian Alluvial found within these plant communities Bolger et al. 1997). For example, Fan Sage Scrub. This relatively open may include: Lepidospartum isolated populations are more vegetation type is adapted to periodic squamatum (scalebroom), Eriogonum susceptible to local extirpation by flooding and erosion (Hanes et al. 1989) fasciculatum (California buckwheat), manmade or natural events, such as and is comprised of an assortment of Eriodictyon crassifolium (wooly yerba disease or floods, than are larger, more drought-deciduous shrubs and larger santa), Eriodictyon trichocalyx (hairy VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19814 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations yerba santa), Yucca whipplei (our Lord’s adjacent to occupied habitat (McKernan, population numbers after seed caches candle), Rhus ovata (sugar bush), Rhus in litt. 2000). are depleted (Goldingay et al. 1997). integrifolia (lemonadeberry), Malosma Areas that contain low densities of Little information exists on the laurina (laurel sumac), Juniperus San Bernardino kangaroo rats may be specific types and local abundances of californicus (California juniper), important for dispersal, genetic predators that feed on the San Baccharis salicifolia (mulefat), exchange, colonization of newly Bernardino kangaroo rat. Potential Penstemon spectabilis (showy suitable habitat, and re-colonization of native predators include the common penstemon), Heterotheca villosa (golden areas after severe storm events. The barn owl (Tyto alba), great horned owl aster), Eriogonum elongatum (tall dynamic nature of the alluvial habitat (Bubo virginianus), long-eared owl (Asio buckwheat), Encelia farinosa (brittle leads to a situation where not all the otus), gray fox (Urocyon bush), Opuntia spp. (prickly pear and habitat associated with alluvial cinereoargenteus), coyote (Canis cholla), Adenostoma fasciculatum processes is suitable for the species at latrans), long-tailed weasel (Mustela (chamise), Prunus ilicifolia (holly-leaf any point in time. However, areas frenata), bobcat (Felis rufus), badger cherry), Quercus spp. (oaks), Salvia generally considered unsuitable habitat, (Taxidea taxus), San Diego gopher apiana (white sage), and annual forbs such as out-of-production vineyards and snake (Pituophis melanoleucus (e.g., Phacelia spp. (phacelia), Lupinus margins of orchards, can and do develop annectens), California king snake spp. (lupine), and Plagiobothrys spp. into suitable habitat for the species (Lampropeltis getulus californiae), red (popcorn flower)), and native and through natural processes (McKernan, diamond rattlesnake (Crotalus ruber), nonnative grasses. pers. comm., 2000). and southern Pacific rattlesnake Similar to other subspecies of Little is known about home range (Crotalus viridus). Domestic cats (Felis Merriam’s kangaroo rat, the San size, dispersal distances, or other spatial cattus) are known to be predators of Bernardino kangaroo rat prefers requirements of the San Bernardino native rodents (Hubbs 1951, George moderately open habitats characterized kangaroo rat. However, home ranges for 1974) and have the ability to reduce by low shrub canopy cover (McKernan the Merriam’s kangaroo rat in the Palm population sizes of rodents (Crooks and 1997). However, the species uses areas Springs, California, area averaged 0.33 Soule´ 1999). Predation of San of denser vegetation (Braden and ha (0.8 ac) for males and 0.31 ha (0.8 ac) Bernardino kangaroo rats by domestic McKernan 2000). McKernan (pers. for females (Behrends et al. 1986). cats has been documented (McKernan, comm., 2000) further stated that such Furthermore, Blair (1943) reported pers. comm., 2000). Continued areas are essential to San Bernardino much larger home ranges for Merriam’s fragmentation of habitat is likely to kangaroo rat conservation. Research kangaroo rats in New Mexico, where promote higher levels of predation by conducted by Braden and McKernan home ranges averaged 1.7 ha (4.1 ac) for native animals (Bolger et al. 1997) and (2000) during 1998 and 1999 males and 1.6 ha (3.8 ac) for females. urban-associated animals (e.g., domestic demonstrated that areas with late phases Space requirements for the San cats, opossums (Didelphis virginianus), of the floodplain vegetation, such as Bernardino kangaroo rat likely vary and striped skunks (Mephitis mephitis)) mature alluvial fan sage scrub and according to season, age and sex of as the interface between natural habitat associated coastal sage scrub and animal, food availability, and other and urban areas is increased (Churcher chaparral, including some areas of factors. Although outlying areas of their and Lawton 1987). moderate to dense vegetation such as home ranges may overlap, Dipodomys A limited amount of data exists nonnative grasslands, are at least adults actively defend small core areas pertaining to population dynamics of periodically occupied by the species. near their burrows (Jones 1993). Home the San Bernardino kangaroo rat. A study of San Bernardino kangaroo range overlap between males and Information is not currently available on rats conducted by Braden and between males and females is extensive, several aspects of the species’ life McKernan (2000) provided additional but female-female overlap is slight history such as fecundity (the capacity new, specific data about the habitat (Jones 1993). The degree of competition of an organism to produce offspring), characteristics in which the species was between San Bernardino kangaroo rats survival, population age and sex found. While this study indicated the and sympatric (living in the same structure, intra- and interspecific range of habitat characteristics in which geographical area) species of kangaroo competition, and causes and rates of the species can occur, it was not rats for food and other resources is not mortality. With respect to population designed to describe habitat preferences presently known. density, Braden and McKernan (2000) for the species. Braden and McKernan Similar to other kangaroo rats, the documented substantial annual determined that within habitat occupied Merriam’s kangaroo rat is generally variation on a trapping grid in San by the San Bernardino kangaroo rat: (1) granivorous (feeds on seeds and grains) Bernardino County, where densities Perennial cover varies from 0 to 100 and often stores large quantities of seeds ranged from 2 to 26 animals per ha (2.47 percent; (2) annual cover (primarily in surface caches (Reichman and Price ac). The reasons for these greatly nonnative grasses) varies from 0 to 70 1993). Green vegetation and insects are disparate values during the 15-month percent; (3) the proportion of surface also important seasonal food sources. study are unknown. These fluctuations fine sands varies from 0 to 100 percent; Insects, when available, have been bring to light several important aspects (4) surface cover of small rock fragments documented to constitute as much as 50 of the species’ distribution and life varies from 0 to 90 percent; and (5) percent of a kangaroo rat’s diet history which should be considered surface cover of large rock fragments (Reichman and Price 1993). when identifying areas essential for the varies from 0 to 51 percent. The San Wilson et al. (1985) reported that conservation of the species—(1) a low Bernardino kangaroo rat has also been compared to other rodents, Merriam’s population density observed in an area documented in areas of human kangaroo rat, and heteromyids in at one point in time does not mean the disturbance not typically associated general, have relatively low area is occupied at the same low density with the species, including nonnative reproductive output. Rainfall and the any other month, season, or year; (2) a grasslands, margins of orchards and out- availability of food have been cited as low population density is not an of-use vineyards, alluvial sage scrub, factors affecting kangaroo rat indicator of low habitat quality or low and areas of wildland/urban interface populations. Droughts lasting more than overall value of the land for the within floodplains or terraces and a year can cause rapid declines in conservation of the species; (3) an VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19815 abundance of San Bernardino kangaroo to the extension. The District Court numerical population goals, prescribe rats can decrease rapidly; and (4) one or subsequently approved the 90-day specific management actions (inside or more factors (e.g., food availability, extension requiring us to complete the outside of critical habitat), or directly fecundity, disease, predation, genetics, final designation by March 1, 2002. affect areas not designated as critical environment) are strongly influencing Through agreement of the parties, this habitat. the species’ population dynamics in one deadline was subsequently extended to In order to be included in a critical or more areas. High-amplitude, high- April 15, 2002. habitat designation, the habitat must frequency fluctuations in small, isolated first be ‘‘essential to the conservation of Critical Habitat populations make them extremely the species.’’ Critical habitat susceptible to local extirpation. Critical habitat is defined in section 3 designations identify, to the extent of the Act as—(i) the specific areas known, and using the best scientific and Previous Federal Action within the geographic area occupied by commercial data available, habitat areas The San Bernardino kangaroo rat was a species, at the time it is listed in that provide essential life cycle needs of emergency listed as endangered on accordance with the Act, on which are the species (i.e., areas on which are January 27, 1998; concurrently, a found those physical or biological found the primary constituent elements, proposal to make provisions of the features (I) essential to the conservation as defined at 50 CFR 424.12(b)). emergency listing permanent was also of the species and (II) that may require Section 4 of the Act requires that we published in the Federal Register (63 special management considerations or designate critical habitat at the time of FR 3835 and 63 FR 3877, respectively). protection; and (ii) specific areas listing to the extent such habitat is On September 24, 1998, we published a outside the geographic area occupied by determinable, at the time of listing. final rule determining the San a species at the time it is listed, upon When we designate critical habitat at Bernardino kangaroo rat to be an a determination that such areas are the time of listing or under short court- endangered species under the Act (63 essential for the conservation of the ordered deadlines, we often may not FR 51005). Critical habitat was species. ‘‘Conservation’’ means the use have sufficient information to identify determined not to be prudent at the time of all methods and procedures that are all areas which are essential for the of listing because an increase in the necessary to bring an endangered or a conservation of the species. degree of threat and the lack of benefit threatened species to the point at which Nevertheless, we are required to to the species (63 FR 51005). listing under the Act is no longer designate those areas we know to be On March 4, 1999, the Southwest necessary. critical habitat, using the best Center for Biological Diversity and Critical habitat receives protection information available to us. Christians Caring for Creation filed a under section 7 of the Act through the Within the geographic area occupied lawsuit in the Federal District Court for prohibition against destruction or by the species, we are designating only the Northern District of California adverse modification of critical habitat areas currently known to be essential. challenging our failure to designate with regard to actions carried out, Essential areas contain the features and critical habitat for the San Bernardino funded, or authorized by a Federal habitat characteristics that are necessary kangaroo rat and six other federally agency. Section 7 also requires to sustain the species, as defined at 50 listed species. A settlement agreement conferences on Federal actions that are CFR 424.12(b). We will not speculate was entered into on November 3, 1999, likely to result in the destruction or about what areas might be found to be in which we were to re-evaluate the adverse modification of proposed essential if better information became prudency of designating critical habitat. critical habitat. In regulations at 50 CFR available, or what areas may become If designation of critical habitat for the 402.02, we define destruction or adverse essential over time. Moreover, certain San Bernardino kangaroo rat was modification as ‘‘...the direct or indirect known populations of the San determined to be prudent, we would alteration that appreciably diminishes Bernardino kangaroo rat have not been publish a proposed rule critical habitat the value of critical habitat for both the designated as critical habitat. We did designation by December 1, 2000, and a survival and recovery of a listed species. not designate critical habitat for small final designation by December 1, 2001. Such alterations include, but are not scattered populations or habitats which In accordance with the stipulated limited to, alterations adversely were in areas that were highly settlement agreement, we re-evaluated modifying any of those physical or fragmented by urban and agricultural the not prudent finding as determined at biological features that were the basis development or were no longer subject the time of listing. Following our re- for determining the habitat to be to hydrological and geomorphological evaluation, we determined that critical critical.’’ Aside from the added processes that would naturally maintain habitat was, in fact, prudent and protection that may be provided under alluvial sage scrub vegetation (the published a proposed rule to designate section 7, the Act does not provide other primary plant community containing its critical habitat on December 8, 2000 (65 forms of protection to lands designated habitat) because we do not believe that FR 77178). A discussion of our re- as critical habitat. Because consultation these areas are essential to the evaluation of the prudency of under section 7 of the Act does not conservation of the species based on designating critical habitat for the San apply to activities on private or other current scientific and commercial Bernardino kangaroo rat is contained non-Federal lands that do not involve a information. within the Previous Federal Action Federal nexus, critical habitat Based on the limited and fragmented section of our rule proposing the designation would not result in any range of the San Bernardino kangaroo designation (65 FR 77178). regulatory requirements for these rat, we are including 330 ha (815 ac) of Following delayed completion of the actions. habitat determined to be essential to the draft economic analysis for the The designation of critical habitat conservation of the San Bernardino proposed designation and time required does not, in itself, lead to the recovery kangaroo rat that is not currently known to hold public hearings, we requested a of a listed species. The designation of to be occupied. This area is located in 90-day extension from the plaintiffs to critical habitat does not create a Riverside County at the northern end of adequately address public comments management plan, establish a preserve, the San Jacinto Unit (Unit 3). A more and complete the final designation. On reserve, or wilderness area where no detailed discussion of this area and the November 19, 2001, the plaintiffs agreed actions are allowed, it does not establish rationale as to why it is essential to the VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19816 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations conservation of the San Bernardino Methods with the biological needs of dispersal kangaroo rat is contained in the In determining areas that are essential are also found in areas that provide description for this critical habitat unit. to conserve the San Bernardino connectivity or linkage between or The Service’s Policy on Information kangaroo rat, we used the best scientific within larger core population areas, Standards Under the Endangered and commercial data available. These including open space and disturbed Species Act, published in the Federal data included research and survey areas that may contain introduced plant Register on July 1, 1994 (59 FR 34271), observations published in peer reviewed species. The long-term conservation of the San provides criteria, establishes articles; regional Geographic Bernardino kangaroo rat is dependent procedures, and provides guidance to Information System (GIS) coverages; San upon a number of factors including the ensure that decisions made by the Bernardino County Multiple Species protection and management of occupied Service represent the best scientific and Habitat Conservation Program (MSHCP) commercial data available. This policy habitat, the protection of linkages database; the University of California, between core areas to maintain gene requires Service biologists, to the extent Riverside, species database; and data consistent with the Act and with the use flow and minimize loss of genetic from reports submitted by biologists diversity (W. Spencer, conservation of the best scientific and commercial holding section 10(a)(1)(A) recovery data available, to use primary and biologist, Conservation Biology permits, including results from on-going Institute, pers. comm., 2002; Lande original sources of information as the research on the San Bernardino basis for recommendations to designate 1988), the protection of upland areas kangaroo rat by the San Bernardino adjacent to suitable habitat that serve as critical habitat. When determining County Museum. which areas are critical habitat, a refugia from lower portions of the primary source of information should be Primary Constituent Elements floodplain during large scale flooding events and/or provide source the listing package for the species. In accordance with section 3(5)(A)(i) populations for recolonization of the Additional information may be obtained of the Act and regulations at 50 CFR lower floodplain after the flooding has from a recovery plan; articles in peer- 424.12 in determining which areas to subsided (R. McKernan, pers. comm., reviewed journals; conservation plans propose as critical habitat, we are developed, or under development, by 2002), and the protection of required to base critical habitat geomorphological, hydrological, and States and counties; scientific status determinations on the best scientific surveys and studies; and biological aeolian (wind-driven) processes and commercial data available and to essential to the continued existence and assessments or other unpublished consider those physical and biological conservation of suitable habitat. The materials (e.g., gray literature). features that are essential to the location and dynamic nature of the Habitat is often dynamic, and species conservation of the species and that may alluvial habitat occupied by this species may move from one area to another over require special management makes it especially vulnerable to flood time. Furthermore, we recognize that considerations or protection. These control activities throughout the any designation of critical habitat may physical and biological features, as drainages in which it occurs. not include all of the habitat areas that outlined in 50 CFR 424.12, include but Based on our current knowledge of may eventually be determined to be are not limited to: space for individual this species, the primary constituent necessary for the recovery of the and population growth, and for normal elements include: species. For these reasons, it is behavior; food, water, or other (1) Soil series consisting important to understand that critical nutritional or physiological predominantly of sand, loamy sand, habitat designations do not signal that requirements; cover or shelter; sites for sandy loam, or loam; habitat outside the designation is breeding, reproduction, or rearing of (2) Alluvial sage scrub and associated unimportant or may not be necessary for offspring; habitats that are protected vegetation, such as coastal sage scrub the conservation of the species. Areas from disturbance or are representative of and chamise chaparral, with a outside the critical habitat designation the historical geographical and moderately open canopy; will continue to be subject to ecological distributions of a species. All (3) River, creek, stream, and wash conservation actions that may be areas designated as critical habitat for channels; alluvial fans; floodplains; implemented under section 7(a)(1) of the San Bernardino kangaroo rat contain floodplain benches and terraces; and the Act and to the regulatory protections one or more of these physical or historic braided channels that are afforded by the section 7(a)(2) of the Act biological features, also called primary subject to dynamic geomorphological jeopardy standard and the section 9 of constituent elements. and hydrological processes typical of the Act take prohibitions, as determined The primary constituent elements for fluvial systems within the historical on the basis of the best available the San Bernardino kangaroo rat are range of the San Bernardino kangaroo information at the time of the action. We those habitat components that are rat. These areas may include a mosaic specifically anticipate that federally essential for the primary biological of suitable and unsuitable soils and funded or assisted projects affecting needs of foraging, reproducing, rearing vegetation that either (a) occur at a scale listed species outside their designated of young, intra-specific communication, smaller than the home range of the critical habitat units may still result in dispersal, genetic exchange, and/or animal, or (b) form a series of core areas jeopardy findings in some cases. sheltering. The primary constituent and linkages between them; and Similarly, critical habitat designations elements are found in areas influenced (4) Upland areas proximal to made on the basis of the best available by historic and/or current floodplains with suitable habitat (e.g., information at the time of designation geomorphological and hydrological floodplains that support the soils, will not control the direction and processes and areas of wind-blown sand vegetation, or geomorphological, substance of future recovery plans, that support alluvial sage scrub hydrological and aeolian processes habitat conservation plans, or other vegetation or a mosaic of alluvial sage essential to this species). These areas are species conservation planning efforts if scrub and associated vegetation types essential due to their geographic new information available to these (e.g., coastal sage scrub, chaparral) in proximity to suitable habitat and the planning efforts calls for a different San Bernardino and Riverside counties. functions they serve during flooding outcome. Primary constituent elements associated events. These areas may include VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19817 marginal habitats such as agricultural ongoing habitat conservation planning the conservation of the San Bernardino lands that are disced annually, out-of- efforts have resulted in the preparation kangaroo rat. However, our minimum production vineyards, margins of of biological analyses that identify mapping unit did not allow us to orchards, areas of active or inactive habitat important for the conservation of exclude all developed areas. Existing industrial or resource extraction the San Bernardino kangaroo rat. These features and structures within the activities, and urban/wildland include the proposed Western Riverside boundaries of the mapped units, such as interfaces. County MSHCP and the proposed San buildings, roads, railroads, airports, Bernardino Valley-Wide MSHCP. other paved areas, lawns, and other Criteria Used To Identify Critical Finally, we evaluated adjacent lands urban landscaped areas will not contain Habitat that may not have been included in the one or more of the primary constituent In identifying areas essential to the original data due to data limitations but elements. Federal actions limited to conservation of the San Bernardino have conservation value for the San those areas, therefore, would not trigger kangaroo rat, we used data regarding the Bernardino kangaroo rat based on the a consultation under section 7 of the Act habitat elements essential to the species, factors described above. unless they affect the species and/or including vegetation types, hydrology, Once essential habitat was identified primary constituent elements in elevation, topography, and soil type and and delineated, we evaluated those adjacent critical habitat. texture. We identified suitable and lands to determine if they were covered Critical Habitat Designation necessary habitat components within by an approved Habitat Conservation the species’ current and historic range, Plan (HCP) or other special management The approximate area of critical and examined the degree of existing plan that provided protection and habitat by county and land ownership is urbanization and other forms of management for the San Bernardino shown in Table 1. Critical habitat anthropogenic habitat disturbance, kangaroo rat and its habitat. We includes San Bernardino kangaroo rat excluding from the designation, as determined that none of the essential habitat throughout the species’ feasible, those areas in which lands were covered by an approved HCP remaining range in Riverside and San development has permanently or other special management plan in Bernardino Counties, California. Lands precluded occupation by the species. which the San Bernardino kangaroo rat designated are under private, State, To identify those lands essential to is a covered species. Tribal, and Federal ownership, with the conservation of the San Bernardino Critical habitat for the San Bernardino Federal lands including lands managed kangaroo rat, we used data regarding (1) kangaroo rat was delineated based on by the U.S. Forest Service (Forest known San Bernardino kangaroo rat interpretation of the multiple sources Service) and Bureau of Land occurrences, (2) alluvial fan sage scrub available during the preparation of this Management (BLM). Four critical and associated vegetation, (3) final rule, including aerial photography habitat units have been delineated: geomorphology, and (4) connectivity at a scale of 1:24,000 (comparable to the Santa Ana River; Lytle and Cajon corridors between San Bernardino scale of a 7.5 minute U.S. Geological Creeks; San Jacinto River-Bautista kangaroo rat populations. We delimited Survey Quadrangle topographic map), Creek; and Etiwanda Alluvial Fan and a study area by selecting geographic current (2001) digital ortho- Wash. These areas support important boundaries based on the four factors photography, and projects authorized concentrations of San Bernardino described above. We determined for take through consultations under kangaroo rats and are the major conservation value based on the section 7 of the Act. These lands were strongholds of this species within its presence of, or proximity to, extant San divided into specific map units, i.e., geographical range. In summary, the Bernardino kangaroo rat populations critical habitat units. critical habitat areas described below and/or alluvial fan sage scrub and In defining critical habitat boundaries, constitute our best assessment of areas associated vegetation, surrounding land- we made an effort to avoid needed for the survival and uses, and the potential to allow development, such as urbanized areas conservation of the San Bernardino dispersal of the species between (e.g., cities) and similar lands that do kangaroo rat. A brief description of each occupied areas. We then evaluated not contain the primary constituent unit, and reasons for designating it as within this area those areas where elements that defined lands essential for critical habitat, are presented below. TABLE 1.—APPROXIMATE CRITICAL HABITAT IN HECTARES (HA) (ACRES (AC)) BY COUNTY AND LAND OWNERSHIP [Area estimates reflect critical habitat unit boundaries1] County Federal 2 Tribal Local/State3 Private Total Riverside ...... 135 ha 290 ha 0 ha 1,835 ha 2,260 ha (330 ac) (710 ac) (0 ac) (4,530 ac) (5,565 ac) San Bernardino ...... 800 ac 0 ha 215 ha 10,210 ha 11,225 ha (1,970 ac) (0 ac) (535 ac) (25,220 ac) (27,725 ac) Total ...... 935 ha 290 ha 215 ha 12,045 ha 13,485 ha (2,300 ac) (710 ac) (535 ac) (29,750 ac) (33,295 ac) 1 Approximate hectares have been converted to acres (1 ha = 2.47 ac). Based on the level of imprecision of mapping at this scale, approxi- mate hectares and acres have been rounded to the nearest 5. 2 Federal lands include BLM and Forest Service lands. 3 Local/State lands defined for San Bernardino County are those lands formerly owned by the U.S. Air Force as part of Norton Air Force Base. These lands are in the process of being acquired by the San Bernardino County International Airport Authority and the Inland Valley Develop- ment Agency. VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19818 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations Critical Habitat Unit 1: Santa Ana River leptoceras (slender-horned spineflower); vegetation types that provide habitat for The Santa Ana River critical habitat and one federally threatened species, San Bernardino kangaroo rat occur on unit, located in San Bernardino County, the coastal California gnatcatcher terraces and adjacent areas with sandy encompasses approximately 3,615 ha (Polioptila californica californica). The soils. This unit includes Glen Helen (8,935 ac), and includes the Santa Ana area is envisioned to include an Area of Regional Park and portions of the City River and portions of City, Plunge, and Critical Environmental Concern or of Muscoy. The hydro-geomorphological Mill creeks. Bounded by Seven Oaks ACEC (see below) and the ACOE’s processes that apparently rejuvenate Dam to the northeast, the area includes preservation lands for Santa Ana River and maintain the dynamic mosaic of lands within the San Bernardino woolly-star. This cooperative agreement alluvial fan sage scrub are still largely National Forest and portions of the would reconfigure and consolidate sand and gravel mining operations in this intact in Lytle and Cajon creeks (i.e., cities of San Bernardino, Redlands, unit to reduce adverse effects to these stream flows are not impeded by dams Highland, and Colton. Although Seven listed species and remaining alluvial fan or debris basins), and the remaining Oaks Dam impedes sediment transport scrub communities. habitat allows dispersal between these and reduces the magnitude, frequency, In 1994, the BLM designated three two drainages, which is important for and extent of flood events, the system parcels in the Santa Ana River, a total genetic exchange between populations. still retains partial fluvial dynamics of approximately 305 ha (760 ac), as an This unit is adjacent to large tracts of because contributions from Mill Creek ACEC. The primary goal of this undeveloped land and contains upland are not impeded by a dam or debris designation was to protect and enhance areas occupied by the species. basin. the habitat of federally listed plant Therefore, these areas are essential A large tract of undeveloped land in species occurring in the area while because of the presence of substantial, San Bernardino National Forest is providing for the administration of existing populations of the species and partially within and adjacent to the existing water conservation rights. habitat connectivity within and between northern and eastern portions of this Although the establishment of this Lytle and Cajon Creeks, as well as with critical habitat unit. In addition, this ACEC was important in regard to the Etiwanda alluvial fan to the west. unit contains upland refugia and conservation of sensitive species and The approximately 560 ha (1,380 ac) tributaries (e.g., City and Plunge creeks) communities in this area, the Cajon Creek Habitat Conservation that are occupied by the species, active administration of these valid existing Management Area, managed by Vulcan hydrological channels, floodplain water conservation rights may conflict Materials Co., Western Division, was terraces, and areas of habitat with the BLM’s ability to manage their created in 1996 to offset approximately immediately adjacent to floodplain lands for the San Bernardino kangaroo 920 ha (2,270 ac) of sand and gravel terraces. rat. Existing rights include a withdrawal mining proposed within and adjacent to The Santa Ana River unit contains the of Federal lands for water conservation Cajon Creek. Of this, an estimated 245 approximately 310 ha (765 ac) Woolly- through an act of Congress on February ha (610 ac) is the Cajon Creek Star Preservation Area (WSPA), a 20, 1909 (Public, No. 248). The entire Conservation Bank established to help section of the floodplain downstream of ACEC is included in this withdrawn conserve populations of 24 species Seven Oaks Dam that was preserved by land and may be used for water associated with alluvial fan scrub, the flood control districts of Orange, conservation measures such as the including the Santa Ana River woolly- Riverside, and San Bernardino counties. construction of percolation basins. star, San Bernardino kangaroo rat, and The WSPA was established in 1988 by These lands are not managed coastal California gnatcatcher. We are the Army Corps of Engineers (ACOE) in specifically for the San Bernardino working, through the section 7 an attempt to minimize the effects of kangaroo rat. consultation process, with project Seven Oaks Dam on the federally Additionally, approximately 30 ha (54 proponents to encourage the purchase of endangered Eriastrum densifolium ssp. ac) of occupied habitat in the Santa Ana lands within this conservation bank by sanctorum (Santa Ana River woolly- River has been set aside in perpetuity by the year 2006, when interim protection star) along the Santa Ana River. This the U.S. Air Force as part of on-base site under a 10-year conservation easement area of alluvial fan scrub in the wash remediation efforts at the former Norton ends. The entire Cajon Creek Habitat near the low-flow channel of the river Air Force Base in San Bernardino, Conservation Management Area and was designated for preservation because California. The area will be monitored adjacent mitigation lands set aside for these sections of the wash were thought and managed specifically for the San the development of the County of San to have the highest potential to maintain Bernardino kangaroo rat, as well as the Bernardino Sheriff’s training facility the hydrology necessary for the periodic woolly-star. would form the nucleus for a larger regeneration of early phases of alluvial reserve to protect the San Bernardino Critical Habitat Unit 2: Lytle and Cajon fan sage scrub. Most of the area is likely kangaroo rat and other listed species in Creeks to support San Bernardino kangaroo rats this area. (MEC Analytical Systems, Inc 2000). The Lytle and Cajon Creeks Unit, We are now coordinating with the which encompasses approximately Critical Habitat Unit 3: San Jacinto BLM, ACOE, San Bernardino Valley 5,655 ha (13,970 ac) in San Bernardino River-Bautista Creek Conservation District, Cemex County, includes the northern extent of The San Jacinto River-Bautista Creek Construction Materials, Robertson’s this species’ remaining distribution. Unit encompasses approximately 2,260 Ready Mix, and other local interests in This unit contains habitat along and ha (5,565 ac) in Riverside County and an attempt to establish the Santa Ana between Lytle and Cajon creeks from the includes portions of San Bernardino River Wash Conservation Area. The point that the creeks emanate from National Forest, Soboba Band of objective of these discussions is to canyons within San Bernardino Luiseno Indians Reservation, Bautista consolidate a conservation area National Forest to flood control Creek, and areas along the San Jacinto consisting of alluvial fan scrub occupied channels downstream. This unit River in the vicinity of San Jacinto, by three federally endangered species, includes alluvial fans, floodplain Hemet, and Valle Vista. This unit, the San Bernardino kangaroo rat, Santa terraces, and historic braided river which represents the southern extent of Ana River woolly-star, and Dodecahema channels. Alluvial sage scrub and other the currently known distribution of the VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19819 species, is adjacent to San Bernardino functions of the unit. Please refer to the increased ability to support populations National Forest and includes occupied Government-to Government through stochastic events. Population habitat and approximately 330 ha (815 Relationship with Tribes section of this expansion in good years results in ac) of lands not currently known to be final rule for a more detailed reservoirs of individuals that survive in occupied. explanation of why these Tribal lands more difficult years. Therefore, essential Along the San Jacinto River the have been included in this final habitat areas supporting relatively small species occurs from the upper reach of designation. populations should include varying habitat in the River downstream to State The San Jacinto River/Bautista habitat conditions. Route 79, within the confined portion of Canyon population is the only known The area of this unit that is not known the floodplain, beyond the earthen flood remaining population in Riverside to be occupied is on the broadest control levee, along the river into the County. Although this population is the portion of the historic floodplain and is San Jacinto Valley and foothills of the smallest of the three large remaining contiguous to known occupied habitat. Badlands. In Bautista Creek, the species populations, it is essential for the long- It will provide area for population occurs upstream of the Bautista flood term survival and recovery of the expansion during expansion years and control basin until the topography of the species. The other two large populations provides important habitat variability canyon becomes too steep. On Tribal (Santa Ana River and Lytle Creek/Cajon for persistence in years of decline. lands two occupied tributaries to the Wash) are in relatively close proximity Critical Habitat Unit 4: Etiwanda San Jacinto River are included. All non- to one another, leaving them Alluvial Fan and Wash Tribal lands within Riverside County simultaneously vulnerable to regional designated as critical habitat for the San catastrophes. As a result, the San Jacinto The Etiwanda Alluvial Fan and Wash, Bernardino kangaroo rat are within the population is essential for the recovery which encompasses approximately planning area of the Western Riverside of the species, and any permanent 1,950 ha (4,820 ac), is located in western MSHCP. reduction in its viability would affect San Bernardino County and represents Since the time of listing, additional the long-term survival of the San the approximate westernmost extent of areas along the San Jacinto River and Bernardino kangaroo rat. the known range of the San Bernardino Bautista Creek have been identified as The portion of designated critical kangaroo rat. Within the northern essential for the conservation of the San habitat located downstream (west) of boundary of the unit are portions of San Bernardino kangaroo rat. New essential State Route 79, an estimated 330 ha (815 Bernardino National Forest. This unit areas were identified based on ac), is currently not known to be includes lands within and between the additional occupation information, a occupied by the San Bernardino active hydrological channels of Deer, better understanding of the species’ kangaroo rat. This area was historically Day, and Etiwanda creeks. A large habitat needs and vegetation providing occupied but we are not aware of any alluvial fan, floodplains, and terraces habitat, the need for habitat recent trapping efforts that could occur throughout the unit. Soils are connectivity, and the importance of provide additional information as to primarily sandy or sandy loam and maintenance of hydrological conditions. current status of occupancy. This support alluvial fan sage scrub. This New information indicates that the portion of the unit provides additional unit also includes portions within the habitat occupied within the floodplain habitat essential for recovery to boundaries of the cities of Rancho by the San Bernardino kangaroo rat is maintain a viable population and by Cucamonga and Fontana; and the larger than previously thought reducing the risks from deleterious approximately 310 ha (760 ac) North (McKernan, in litt. 1999, Braden and stochastic (random naturally occurring) Etiwanda Preserve. McKernan 2000), and includes areas of events within the unit. Lands designated as critical habitat higher vegetation density. We have also The population of San Bernardino within this unit contain a population of received additional information on the kangaroo rats in this unit is at risk due the species and upland refugia from distribution of the species within the to its small size and the limited area that catastrophic flooding. Neither dams nor watershed (e.g., Bautista Creek), and are it occupies. As discussed above, low debris basins exist at the mouths of East including areas essential for abundance renders the population Etiwanda and San Sevaine creeks, maintaining habitat connectivity along susceptible to stochastic events such as enabling natural fluvial processes to the floodplain. This additional inbreeding, the loss of genetic variation, maintain favorable habitat conditions on information further supports the demographic problems like skewed the upper alluvial fan and in other identification of this area as a major variability in age and sex ratios, and portions of the critical habitat unit. concentration of San Bernardino catastrophes such as floods, droughts, or However, urban development and kangaroo rat in the final listing rule and disease epidemics (Lande 1988, existing and proposed flood control the importance of this area for the long- Frankham and Ralls 1998, Saccheri et structures will preclude the occurrence term conservation for this species. al. 1998). of future natural fluvial processes in the Approximately 290 ha (710 ac) of The risks of catastrophic stochastic Etiwanda alluvial fan south of 24th lands within the Soboba Band of events due to small population size and Street/Wilson Avenue (Biological Luiseno Indians Reservation within this isolation is exacerbated by normal Opinion, FWS–SB–1743.5 Carlsbad Fish critical habitat unit have been population fluctuation cycles. During a and Wildlife Office, February 7, 2002). determined to be essential to the severe population decline due to a Despite these conditions, the San conservation of the San Bernardino natural fluctuation or a stochastic event, Bernardino kangaroo rat persists within kangaroo rat and designated as critical populations contract into disjunct San Bernardino County Transportation habitat. These lands include portions of groups. As populations rebound these and Flood Control District property and the San Jacinto River and two tributary groups become the source for approximately 65 ha (155 ac) of this washes. This portion of the unit is least recolonization of previously occupied habitat within the critical habitat unit affected by flood control activities and and new areas. Areas that include has been set aside and will be managed supports the largest known density of varying habitat conditions (e.g., primarily for the San Bernardino animals in the unit. Inclusion of the topography, position on the floodplain, kangaroo rat. Recognized local San Tribal portion of the unit is also vegetation characteristics, substrate, Bernardino kangaroo rat authority, necessary to maintain the hydrologic areas for population expansion) have an Robert McKernan, states that areas VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19820 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations within historic flood regimes (such as with the intended purpose of the action, Section 4(b)(8) of the Act requires us western Lytle Creek fan including the that are consistent with the scope of the to briefly evaluate and describe in any Etiwanda wash) should be given equal Federal agency’s legal authority and proposed or final regulation that priority to the major population areas of jurisdiction, that are economically and designates critical habitat those the Santa Ana River and Cajon Wash in technologically feasible, and that the activities involving a Federal action that considering the survival and recovery of Director believes would avoid resulting may adversely modify such habitat, or the San Bernardino kangaroo rat (R. in the destruction or adverse that may be affected by such McKernan 1999). modification of critical habitat. designation. Activities that may destroy Reasonable and prudent alternatives can or adversely modify critical habitat Effects of Critical Habitat Designation vary from slight project modifications to include those that alter the primary Section 7 Consultation extensive redesign or relocation of the constituent elements to an extent that project. the value of critical habitat for both the Section 7(a) of the Act requires Regulations at 50 CFR 402.16 require survival and recovery of the San Federal agencies, including the Service, Federal agencies to reinitiate Bernardino kangaroo rat is appreciably to ensure that actions they fund, consultation on previously reviewed reduced. We note that such activities authorize, or carry out do not destroy or actions in instances where critical may also jeopardize the continued adversely modify critical habitat to the habitat is subsequently designated, and existence of the species. Activities that, extent that the action appreciably the Federal agency has retained when carried out, funded, or authorized diminishes the value of the critical discretionary involvement or control by a Federal agency, may destroy or habitat for the conservation of the over the action or such discretionary adversely modify critical habitat species. Individuals, organizations, involvement or control is authorized by include, but are not limited to: States, local governments, and other law. Consequently, some Federal (1) Any activity that results in non-Federal entities are affected by the agencies may request reinitiation of changes in the hydrology of the unit, designation of critical habitat only if consultation or conferencing with us on including activities associated with their actions occur on Federal lands, actions for which formal consultation flood control structures and operations; require a Federal permit, license, or has been completed, if those actions construction of levees, berms, and other authorization, or involve Federal may affect designated critical habitat or concrete channels; flooding; sediment, funding. adversely modify or destroy proposed sand, or gravel removal, transfer, or Section 7(a) of the Act requires critical habitat. Conference reports deposition; grading; excavation; and Federal agencies, including the Service, provide conservation recommendations construction or modification of bridges; to evaluate their actions with respect to to assist the agency in eliminating (2) Any activity that results in any species that is proposed or listed as conflicts that may be caused by the development or alteration of the endangered or threatened and with proposed action. The conservation landscape within or immediately respect to its critical habitat, if any is recommendations in a conference report adjacent to fluvial systems, including proposed or designated. Regulations are advisory. water diversion, reclamation, and implementing this interagency We may issue a formal conference recharge activities; agricultural cooperation provision of the Act are report if requested by a Federal action activities; urban and industrial codified at 50 CFR part 402. Section agency. Formal conference reports development; water conservation 7(a)(4) of the Act requires Federal include a biological opinion that is activities; off-road activity; and agencies to confer with us on any action prepared according to 50 CFR 402.14, as mechanized land clearing or discing; that is likely to jeopardize the continued if the species was listed or critical (3) Any activity that results in existence of a proposed species or result habitat were designated. We may adopt changes to the water quality or quantity in destruction or adverse modification the formal conference report as the to an extent that habitat becomes of proposed critical habitat. biological opinion when the species is unsuitable to support the San If a species is listed or critical habitat listed or critical habitat is designated, if Bernardino kangaroo rat; is designated, section 7(a)(2) of the Act no substantial new information or (4) Any activity that could lead to the requires Federal agencies to ensure that changes in the action alter the content introduction, expansion, or increased activities they authorize, fund, or carry of the opinion (see 50 CFR 402.10(d)). density of exotic plant or animal out are not likely to jeopardize the Activities on Federal lands that may species, urban-associated domestic continued existence of such a species or affect the San Bernardino kangaroo rat animals (e.g., cats), or livestock into San to destroy or adversely modify its or its critical habitat will require Bernardino kangaroo rat habitat; critical habitat. If a Federal action may consultation under section 7 of the Act. (5) Any activity that results in affect a listed species or its critical Activities on private or State lands appreciable detrimental changes to the habitat, the responsible Federal agency requiring a permit from a Federal density or diversity of plant or animal must enter into consultation with us. agency, such as a permit from the U.S. populations in San Bernardino kangaroo Through this consultation, we would Army Corps of Engineers (Corps) under rat habitat, such as grubbing, grading, ensure that the permitted actions do not section 404 of the Clean Water Act, or overgrazing, mining, discing, off-road adversely modify critical habitat. some other Federal action, including vehicle use, or the application of When we issue a biological opinion funding (e.g., Federal Highway herbicides, rodenticides, or other concluding that a project is likely to Administration, Federal Aviation pesticides; and result in the destruction or adverse Administration, or Federal Emergency (6) Any activity that could result in an modification of critical habitat, we also Management Agency) will also continue appreciably decreased habitat value or provide reasonable and prudent to be subject to the consultation process quality through indirect effects, such as alternatives to the project, if any are pursuant to section 7 of the Act. Federal noise, edge effects, night-time lighting, identifiable. Reasonable and prudent actions not affecting listed species or or fragmentation. alternatives are defined at 50 CFR critical habitat and actions on non- To properly portray the effects of 402.02 as alternative actions identified Federal lands that are not federally critical habitat designation, we must during consultation that can be funded or permitted do not require first compare the requirements pursuant implemented in a manner consistent consultation under section 7 of the Act. to section 7 of the Act for actions that VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19821 may affect critical habitat with the Department of Energy, or any other Bernardino and Riverside counties have requirements for actions that may affect Federal agency. signed planning agreements a listed species. Section 7 of the Act If you have questions regarding (memoranda of understanding (MOUs)) prohibits actions funded, authorized, or whether specific activities will likely to develop multi-species plans that meet carried out by Federal agencies from constitute destruction or adverse NCCP criteria, but have not enrolled in jeopardizing the continued existence of modification of critical habitat, contact the NCCP program in the interim. a listed species or destroying or the Field Supervisor, Carlsbad Fish and We are coordinating with the BLM, adversely modifying the listed species’ Wildlife Office (see ADDRESSES section). Corps, San Bernardino Valley critical habitat. Actions likely to Requests for copies of the regulations on Conservation District, Sun West ‘‘jeopardize the continued existence’’ of listed wildlife, and inquiries about Materials, Robertson’s Ready Mix, and a species are those that would prohibitions and permits may be other local interests in an attempt to appreciably reduce the likelihood of the addressed to the Division of Endangered establish the Santa Ana River Wash species’ survival and recovery. Actions Species, U. S. Fish and Wildlife Service, Conservation Area. The objective of likely to ‘‘destroy or adversely modify’’ 911 NE 11th Avenue, Portland, OR these discussions is to consolidate a critical habitat are those that would 97232–4181 (telephone 503–231–6158; conservation area consisting of alluvial appreciably reduce the value of critical facsimile 503–231–6243). fan scrub communities occupied by four federally listed species, but as yet, we habitat for the recovery of the listed Relationship to Habitat Conservation have not completed this process. species. Plans and Other Planning Efforts Common to both definitions is an Because there are no approved HCPs/ Section 10(a)(1)(B) of the Act appreciable detrimental effect on NCCPs in which the San Bernardino authorizes the Service to issue to non- recovery of a listed species. Given the kangaroo rat is a covered species or Federal entities a permit for the similarity of these definitions, actions other conservation plans that are incidental take of endangered and likely to destroy or adversely modify currently completed that specifically threatened species. This permit allows a critical habitat would almost always address the San Bernardino kangaroo non-Federal landowner to proceed with result in jeopardy to the species rat, we did not exclude any lands from an activity that is legal in all other concerned, particularly when the area of this critical habitat designation pursuant respects, but that results in the the proposed action is occupied by the to section 4(b)(2) of the Act on this incidental taking of a listed species. The species concerned. Designation of basis. Act defines incidental take as take that In the event that future HCPs covering critical habitat in areas occupied by the is ‘‘incidental to, and not the purpose of, the San Bernardino kangaroo rat are San Bernardino kangaroo rat is not the carrying out of an otherwise lawful developed within the boundaries of likely to result in a significant activity.’’ A habitat conservation plan, designated critical habitat, we will work regulatory burden above that already in or HCP, must accompany an application with applicants to ensure that the HCPs place due to the presence of the listed for an incidental take permit. The provide for protection and management species. In that portion of critical habitat purpose of the HCP is to describe and of habitat areas essential for the that is not currently known to be ensure that the effects of the permitted conservation of the San Bernardino occupied or if occupied habitat becomes action on covered species are kangaroo rat by either directing unoccupied in the future, critical habitat adequately minimized and mitigated development and habitat modification may provide a benefit through the and that the action does not appreciably to nonessential areas or appropriately recognition of the importance of these reduce the survival and recovery of the modifying activities within essential areas to the conservation of the species. species. habitat areas so that such activities will However, the Corps already currently The State of California instituted a not adversely modify the primary requires review of most or all projects conservation planning program parallel constituent elements. The HCP requiring permits in all fluvial systems, to the Federal HCP program. Under the development process provides an whether San Bernardino kangaroo rats Natural Community Conservation opportunity for more intensive data are known to be present. Planning (NCCP) Act of 1991, a NCCP collection and analysis regarding the Designation of critical habitat could is a plan for the conservation of natural use of particular habitat areas by the San affect Federal agency activities. Federal communities that takes an ecosystem Bernardino kangaroo rat. The process agencies already consult pursuant to approach and encourages cooperation also enables us to conduct detailed section 7 of the Act with the Service on between private and government evaluations of the importance of such activities in areas known to be occupied interests. The Service and the California lands to the long-term survival of the by the species to ensure that their Department of Fish and Game (CDFG) species in the context of constructing a actions do not jeopardize the continued work with applicants to develop plans biologically configured system of existence of the species. These actions that serve both as an HCP under the interlinked habitat blocks. include, but are not limited to: Federal Endangered Species Act as well We will provide technical assistance (1) Regulation of activities affecting as an NCCP under the State’s NCCP Act. and work closely with applicants waters of the U.S. by the Corps under Much like a regional HCP, an NCCP throughout the development of future section 404 of the Clean Water Act; identifies and provides for the regional HCPs to identify appropriate (2) Road construction and or area-wide protection and management for lands essential for the maintenance, right-of-way designation, perpetuation of plants, animals, and long-term conservation of the San and regulation of agricultural activities; their habitats, while allowing Bernardino kangaroo rat. The take (3) Regulation of airport construction compatible land use and economic minimization and compensation and improvement activities by the activity. The initial focus of this measures provided under these HCPs Federal Aviation Administration; program is coastal sage scrub. Within are expected to protect the essential (4) Licensing of construction of this program, the CDFG included the habitat lands designated as critical communication sites by the Federal long-term conservation of alluvial sage habitat in this rule. If an HCP that Communications Commission; and scrub, which is in part occupied by the addresses the San Bernardino kangaroo (5) Funding of activities by the U.S. San Bernardino kangaroo rat. However, rat as a covered species is ultimately Environmental Protection Agency, participation in NCCP is voluntary. San approved, the Service may reassess the VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19822 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations critical habitat boundaries in light of the ability of the amount of habitat In developing the final designation, HCP. proposed to provide for the persistence we made an effort to minimize the and recovery of the species; one was inclusion of nonessential areas that do Summary of Comments and non-committal. Several of the reviewers not contain the primary constituent Recommendations felt that the Braden and McKernan elements for the kangaroo rat. However, In the December 8, 2000, proposed (2000) study could be misleading, as due to our mapping scale, some areas critical habitat designation (65 FR their methods for quantifying the not essential to the conservation of the 77178), we requested all interested percent cover of habitat could give the San Bernardino kangaroo rat were parties to submit comments on the impression that marginal upland mature included within the boundaries of specifics of the proposal including shrub habitat had the same value as proposed and final critical habitat. We information related to biological high quality alluvial scrub. Their were able to refine our boundaries justification, policy, economics, and comments have been either addressed in considerably with recent (2001) aerial proposed critical habitat boundaries. the text or responded to below. imagery which allowed for the The first comment period closed on We received a total of 66 comment exclusion of many areas that do not February 6, 2001. The comment period letters/testimonies, from 54 separate contain the primary constituent was reopened from September 4, 2001, parties, during the two public comment elements. These areas, such as towns, to October 4, 2001 (66 FR 46251), to periods. Comments were received from housing developments, mines, or other allow for additional comments on the a number of Federal and local agencies, developed lands are unlikely to provide proposed designation, and comments on and separate private organizations or essential habitat for the kangaroo rat. the draft economic analysis of the individuals. Of these 66 comments, 10 Because they do not contain one or proposed critical habitat. Comments were in favor of the designation, 52 more of the primary constituent received after the close of this last against it, and 4 were neutral. We elements for the species, Federal actions comment period were determined not to reviewed all comments received for limited to those areas will not trigger a provide substantive comment that had substantive issues and comments, and section 7 consultation, unless they affect not already been raised or addressed new information regarding the San the species or the primary constituent and entered into the supportive record Bernardino kangaroo rat. Similar elements of adjacent critical habitat. for this rulemaking. comments were grouped into three 2. Comment: Several peer reviewers, We contacted all appropriate State general issues relating specifically to the in addition to other commenters, had and Federal agencies, Tribes, county proposed critical habitat determination concerns that the amount of land governments, elected officials, and other and draft economic analysis on the proposed as critical habitat was not interested parties and invited them to proposed determination. Comments sufficient for the survival and long-term comment. In addition, we invited public have been incorporated directly into the conservation of the species. comment through the publication of final rule or final addendum to the Additionally, some commenters thought legal notices in two newspapers in economic analysis or addressed in the that the critical habitat proposal was southern California: San Bernardino following summary. overly broad, containing too much land, County Sun and Riverside Press and one commenter supported the Issue 1: Biological Justification and Enterprise on December 11, 2000, and delineation of the proposed designation. again in both papers on September 4, Methodology Our Response: In proposing critical 2001. We provided notification of the 1. Comment: The scale of the habitat for the San Bernardino kangaroo draft economic analysis through proposed critical habitat for the San rat, we identified those areas that we telephone calls, letters, and news Bernardino kangaroo rat is overly broad, believed to be essential to the releases faxed and/or mailed to affected resulting in vague unit boundaries. conservation of this species. However, elected officials, media outlets, local Several commenters questioned the the mapping scale that we used resulted jurisdictions, and interest groups. We biological justification for proposing in a more inclusive proposal. We did also published the draft economic critical habitat for the San Bernardino not include all areas currently occupied analysis and associated material on our kangaroo rat using such a landscape- by the kangaroo rat, but designated Carlsbad Fish and Wildlife Office scale approach. Several commenters those areas that possess larger Internet site following its release on were concerned that the mapping lacked populations, have unique ecological September 4, 2001. In addition to precision for use by the public. Several characteristics, and/or represent the inviting public comment on the commenters voiced concern that areas historic geographic areas where the proposed designation and the draft that should not be designated as critical species can be re-established. Please economic analysis on the proposed habitat were included because of the refer to the Background and Criteria designation, the latter notices mapping scale. Used To Identify Critical Habitat announced the dates and times of public Our Response: We recognize that not sections of this final rule for further hearings on the proposed designation. all parcels of land designated as critical discussion on this topic. These hearings were held on September habitat will contain the habitat After refining our proposal and 20, 2001, in San Bernardino, California components essential to the weighing the best available information, from 1:00 p.m. to 3:00 p.m. and 6:00 conservation of the San Bernardino we conclude that the areas designated p.m. to 8:00 p.m. Transcripts of these kangaroo rat. Due to time constraints, by this final rule, including currently hearings are available for inspection (see and the absence of more detailed map occupied areas that were not known to ADDRESSES section). information during the preparation of be occupied at the time the species was We asked nine biologists, who have the proposed designation, we used a listed, are essential for the conservation knowledge of the San Bernardino 100-m UTM grid to delineate the critical of the species. kangaroo rat, to provide peer review of habitat boundaries. This resulted in the 3. Comment: Several peer reviewers the proposed designation of critical inclusion of some lands that did not and other commenters indicated that habitat for the San Bernardino kangaroo provide the primary constituent certain areas within the proposed rat; six responded. Five of the six elements for the San Bernardino critical habitat were either known to be supported the designation, although kangaroo rat, such as homes and urban occupied (e.g., Etiwanda Creek Channel, several expressed concerns with the landscapes. Day Creek Channel, San Antonio Wash VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19823 near Baseline Road, Etiwanda Fan) or kangaroo rat may provide important vegetation, (3) geomorphology, and (4) were not occupied (e.g., Riverside genetic material for the species and its connectivity corridors between San County Flood Control and Water long-term conservation. However, we Bernardino kangaroo rat population. Conservation District facilities, Rancho currently do not have any information Once these areas were defined, we then Cucamonga, Fontana). concerning the genetic diversity of these evaluated them for conservation value Our Response: Data used in the populations. Further, due to the time and removed any lands determined not preparation of our proposed and final constraints for completing this to be essential to the long-term designations indicate that the Etiwanda designation, we were unable to develop conservation of the San Bernardino Creek Channel, Day Creek Channel, San and or conduct a biologically and kangaroo rat (e.g., urban, active mining, Antonio Wash near Baseline Road, statistically rigorous study to evaluate and agriculture). Etiwanda Fan, and areas in Fontana are the genetics of the remaining San During the development of this final occupied by the San Bernardino Bernardino kangaroo rat populations. designation, the lands proposed for kangaroo rat. The majority of the Therefore, we did not have substantive designation were further re-evaluated Riverside Flood Control and Water information to determine and support and refined based on more recent aerial Conservation District facilities that these small isolated populations are photography, public comment, and mentioned by the commenters (e.g., essential to the long-term conservation information received since the small properties, buildings, wells) are of the San Bernardino kangaroo rat. publication of the proposed designation. located in areas of the San Jacinto Wash Thus, the areas containing them were The critical habitat boundaries defined in which we have current not designated as critical habitat. in this final rule have been reduced documentation of occupancy by the San 6. Comment: The descriptions of the from those identified in the proposal. Bernardino kangaroo rat. primary constituent elements of critical 8. Comment: Several peer reviewers 4. Comment: Some commenters were habitat for the San Bernardino kangaroo and one commenter expressed concern concerned with the definition of rat are not specific, or are vague, with the use of the data from Braden ‘‘occupied’’ in the proposed rule incorrect, and/or confusing. and McKernan (2000) to include upland claiming that it was problematic, Our Response: The description of the areas such as vineyards (current/ unsupportable, and inconsistent. primary constituent elements for the historical), agricultural lands, and Our Response: In the proposed rule San Bernardino kangaroo rat is based on mature alluvial fan sage scrub in the and for this final designation, we the best available scientific and proposed critical habitat. defined occupancy based on commercial data regarding the species, Our Response: The Braden and documented occurrence data for the San including a compilation of data from McKernan (2000) study provided Bernardino kangaroo rat for the last peer-reviewed, published literature; additional new, specific data about the fifteen years. We evaluated the location unpublished or non-peer-reviewed habitat characteristics where the species of observations relative to other survey and research reports; and has been documented; we realize that documented occurrences to obtain an opinions of biologists knowledgeable this study indicates the range of habitat understanding of the mosaic of about the San Bernardino kangaroo rat characteristics in which the species can occupied habitat within appropriate and its habitat. Additionally, we occur. We recognize that the study was suitable plant communities and wash updated the biological information, not designed to indicate/describe habitat. We then evaluated the including the primary constituent habitat affinities or habitat preferences estimated territory size, potential use elements, in this final rule based on by the San Bernardino kangaroo rat. We area and dispersal distances information that we received from used this information, realizing its documented for other kangaroo rat survey reports during 2002, public limitations, when developing our best species and applied those trends for the comments, and scientific and estimate of areas that are important for San Bernardino kangaroo rat. commercial data. Consequently, the the conservation of the San Bernardino We understand that this definition of primary constituent elements, as kangaroo rat. Please refer to the occupancy may differ from public described in this final rule, represent background section in this final rule for perception of detectable presence of a our best estimate of what habitat an expanded discussion on this topic. kangaroo rat during each survey event components are essential for the 9. Comment: Several peer reviewers over all of designated critical habitat. conservation of the species. Please refer were concerned that the survey protocol We believe that based on the behavior to the Primary Constituent Elements was insufficient to determine presence/ and ecology of the San Bernardino section of this final rule for a further absence; therefore, data used to kangaroo rat as extrapolated from the discussion on this topic. determine the proposed critical habitat best available scientific data, the animal 7. Comment: One commenter was flawed. Additionally, one may not be detectable at all times across questioned the methodology that we commenter was concerned that the all areas designated as critical habitat. used to determine the critical habitat Service assumed that many areas were Based on our analysis we believe we boundaries and indicated that the occupied without protocol surveys. have properly defined occupancy as it proposed designation must be Our Response: We currently do not relates to the behavior and ecology of substantially revised and resubmitted have an approved survey protocol for the San Bernardino kangaroo rat. for public comments before it is the San Bernardino kangaroo rat. 5. Comment: Several peer reviewers finalized However, based on repeated field pointed out that small, isolated Our Response: As described in the sampling, we have developed a standard populations of the San Bernardino Criteria Used To Identify Critical minimum methodology for conducting kangaroo rat may contain important Habitat section of this final rule we presence/absence surveys. We are genetic material for the species. They describe the methods used to define currently reviewing proposed changes also suggested that the Service conduct critical habitat for the San Bernardino to increase the accuracy of this survey a population genetics study to kangaroo rat. In general, to delineate methodology and decrease the chances determine whether or not to include critical habitat boundaries we used data of error in detecting the San Bernardino them in critical habitat. regarding (1) known San Bernardino kangaroo rat if present. Our Response: Small isolated kangaroo rat occurrences, (2) alluvial For determining critical habitat, we populations of the San Bernardino fan sage scrub and associated evaluated the current distribution of the VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19824 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations San Bernardino kangaroo rat based on currently not known to be occupied. scientific evidence’; that we should documented sightings or captures and The approximate two-fold increase over conduct additional surveys or research incorporated those areas that we the approximate amount of land (such as estimate the minimum viable believed to be essential to the occupied by the San Bernardino population size); and that there is conservation of the species based on kangaroo rat at the time it was federally evidence to designate critical habitat this occurrence information in the listed is based on additional data and areas outside of occupied habitat. critical habitat designation. research that has expanded our Our Response: We are required to use 10. Comment: The proposed rule knowledge on the distribution and the best available information in inappropriately uses a ‘‘recovery habitat needs of the species. Please refer designating critical habitat. During the standard’’ to determine critical habitat to the background section of this final development of the proposed for the San Bernardino kangaroo rat. rule for a more detailed discussion of designation and following its Our Response: The definition of this issue. publication during the two open critical habitat in section 3(5)(A) of the 12. Comment: The broad scale of the comment periods, we solicited Act includes ‘‘(i) specific areas within proposed critical habitat maps is not biological data and public participation the geographic area occupied by a specific enough to allow for reasonable in the rule making process. These species, at the time it is listed in public comment, therefore violating the comments have been taken into accordance with the Act, on which are Act and 50 CFR 424.12(c). consideration in the development of this found those physical or biological Our Response: We identified specific final designation. As stated in several features (I) essential to the conservation areas in the proposed determination that sections of this final designation, we of the species and (II) that may require are referenced by public land surveys used data collected during 2001 and special management considerations or and UTM coordinates, which are found 2002 to determine the final protection; and (ii) specific areas on standard topographic maps. We also configuration of critical habitat. Data outside the geographic area occupied by made available a public viewing room from 2002 corroborated occupancy and a species at the time it is listed, upon where maps with the proposed critical assisted in further defining critical a determination that such areas are habitat superimposed on 7.5 minute habitat boundaries. We are currently essential for the conservation of the topographic maps and spot imagery unable to conduct a population viability species.’’ The term ‘‘conservation’’, as could be inspected. Further, we analysis for or more detailed research on defined in section 3(3) of the Act, means distributed GIS coverages and maps of the San Bernardino kangaroo rat due to ‘‘to use and the use of all methods and the proposed critical habitat to everyone time and funding constraints. We are procedures which are necessary to bring who requested them. We believe the currently required under a court- any endangered species or threatened information made available to the approved settlement agreement to species to the point at which the public was sufficiently detailed to allow finalize this designation by April 15, measures provided pursuant to the Act for informed public comment. This final 2002. However, we will continue to are no longer necessary.’’ rule contains the legal descriptions of monitor the species and collect new In designating critical habitat for the areas designated as critical habitat information and may revise the critical San Bernardino kangaroo rat, pursuant required under 50 CFR 424.12(c). The habitat designation in the future, to the Act, we identified those areas that accompanying maps are for illustration funding permitting, if new information currently contain one or more of the purposes only. If additional clarification supports a change. physical or biological features, primary is necessary, please contact the Carlsbad Issue 2: Policy and Regulations constituent elements, essential to the Fish and Wildlife Office (see FOR conservation of the species. We did not FURTHER INFORMATION CONTACT section). 15. Comment: The Service violated include all areas currently occupied by 13. Comment: According to one peer the Administrative Procedure Act by not the San Bernardino kangaroo rat or reviewer, geomorphological and providing adequate public notice to all containing the primary constituent hydrological processes, and presently affected landowners, not providing elements, but designated only those unoccupied habitat are critical to the sufficient opportunity for public areas determined to be essential to the survival and conservation of the San comment, or extending the comment species conservation and characterized Bernardino kangaroo rat. The period to allow for adequate time for by large populations, unique ecological commenter recommended including comment. characteristics, and historic geographic side channels in the critical habitat Our Response: We published the areas where the species can be re- designation. proposed rule to designate critical established. Our Response: As we discuss in the habitat for the San Bernardino kangaroo 11. Comment: The lands that are Background section of this rule, we rat on December 8, 2000 (65 FR 77178), being proposed as critical habitat for the concur with the commenter on the and accepted comments from the public San Bernardino kangaroo rat represent a importance of these geomorphological for 60 days, until February 6, 2001. The huge, unsubstantiated increase from the and hydrological processes for creating comment period was reopened from amount of habitat that was described in and maintaining habitat essential to the September 4, 2001, to October 4, 2001 the final listing rule, and even now, as survival and conservation of the San (66 FR 46251), to allow for additional being occupied by this species. There is Bernardino kangaroo rat. We considered comments on the proposed designation, a lack of data to support this increase in the importance of these processes and and comments on the draft economic occupied area for the species. side channels when delineating the analysis on the proposed critical habitat. Our Response: In our final rule to list boundaries of critical habitat for this Comments received after the close of the the San Bernardino kangaroo rat as final designation and included the areas last comment period were determined endangered (63 FR 51005), we estimated providing for those geomorphological not to provide substantive comments that approximately 5,279 ha (13,044 ac) and hydrological processes that are that had not already been raised or were likely occupied. In this final essential for the conservation of the San addressed and entered into the critical habitat designation we are Bernardino kangaroo rat. supportive record for this rulemaking. designating approximately 13,485 ha 14. Comment: Several commenters We contacted all appropriate State (33,295 ac) as essential, of which felt that we proposed critical habitat and Federal agencies, Tribes, county approximately 330 ha (815 ac) are before we obtained all of ‘‘the best governments, elected officials, and other VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19825 interested parties and invited them to designating critical habitat resulted in designation a non-essential disturbed comment. In addition, we invited public our concluding that the benefits of area on the western edge of Tribal lands comment through the publication of designating critical habitat outweighed on the north side of the river that is notices in the following newspapers in the benefits of not designating (i.e., proposed for economic development. southern California: San Bernardino threats to the species due to the release The result of this analysis and Sun and Riverside Press Enterprise on of specific habitat or occurrence refinement was the reduction of critical December 11, 2000, and again in both information). Pursuant to section 3 of habitat on Tribal land to 290 ha (710 ac). papers on September 4, 2001. We the Act, and the implementing Currently the Soboba Band of Luise˜no provided notification of the draft regulations, in the absence of finding Indians does not have a resource economic analysis through telephone that critical habitat would increase management plan which provides calls, letters, and news releases faxed threats to a species, if there are any protection or conservation for the San and/or mailed to affected elected benefits to critical habitat being Bernardino kangaroo rat and its habitat. officials, media local jurisdictions, and designated, then a prudent finding is We are committed to maintaining a interest groups. We also published the warranted. positive working relationship with the draft economic analysis and associated 17. Comment: The Service violated Tribe and will continue to work with material on our Carlsbad Fish and the National Environmental Policy Act them on developing a resource Wildlife Office Internet site following of 1969 (NEPA) by failing to prepare an management plan for the Reservation the draft’s release on September 4, 2001. Environmental Impact Statement for the including conservation measures for the In addition to inviting public comment designation of critical habitat. kangaroo rat. However, due to the time on the proposed designation and the Our Response: As discussed in the constraints for completing this final rule draft economic analysis for the National Environmental Policy Act and the lack of an existing resource proposed designation, the latter notices section of the proposed rule and this management plan covering the San announced the dates and times of public final, we have determined that it is not Bernardino kangaroo rat, we were hearings on the proposed designation. necessary to prepare an Environmental required to finalize the designation These hearings were held on September Assessment or an Environmental Impact based on our analysis of the relative 20, 2001, in San Bernardino, California Statement as defined by the National importance of the lands within the from 1:00 p.m. to 3:00 p.m. and 6:00 Environmental Policy Act of 1969 in Soboba Band of Luise˜no Indians p.m. to 8:00 p.m. Transcripts of these connection with regulations adopted Reservation for the conservation of the hearings are available for inspection (see pursuant to section 4(a) of the San Bernardino kangaroo rat. ADDRESSES section). Endangered Species Act as amended. For a further discussion of this issue 16. Comment: A commenter indicated We published a notice outlining our please refer to the Government-To- that our re-evaluation of the prudency of reasons for this determination in the Government Relationship With Tribes designating critical habitat for the San Federal Register on October 25, 1983 section of this final rule. Bernardino kangaroo rat was (48 FR 49244). 19. Comment: Many commenters, insufficient. 18. Comment: Tribal lands should be including all of the peer reviewers, Our Response: In our final rule listing excluded from critical habitat based on suggested that additional lands be the San Bernardino kangaroo rat as either section 4(b)(2) of the Act, designated as critical habitat for the San endangered under the Act (63 FR Secretarial Order 3206, or because Bernardino kangaroo rat. The areas 51005), we found that designation of Tribal lands are managed better suggested include additional lands critical habitat was not prudent because voluntarily. upwind and upstream from lands we believed that designation could Our Response: In our proposed contained within proposed critical result in an increase in the degree of critical habitat rule, we indicated that habitat that are important to maintain threat to the species. As we discuss in approximately 465 ha (1,150 ac) of lands San Bernardino kangaroo rat habitat, the Previous Federal Action section of within the Soboba Band of Luise˜no upland refugia areas up to 600 meters this final rule, we were challenged on Indians Reservation in western (1,950 feet) from channels, other known our original ‘‘not prudent’’ finding. On Riverside County were essential for the occupied sites, and other lands to November 3, 1999, we agreed to a conservation of the San Bernardino connect the proposed critical habitat stipulated settlement that required us to kangaroo rat. In the development of the units together. The commenters publish a proposal to withdraw the final critical habitat designation for the indicated that these areas are needed for existing ‘‘not prudent’’ critical habitat San Bernardino kangaroo rat, we re- the long-term conservation of the San determination and re-evaluate the evaluated these Tribal lands to Bernardino kangaroo rat. prudency of designating critical habitat. determine if they were essential to the Our Response: We did not include all If designation of critical habitat for the conservation of the kangaroo rat and of the lands, both general and specific, San Bernardino kangaroo rat was whether they should be designated as suggested by the commenters in determined to be prudent, we agreed to critical habitat. Based on distribution proposed critical habitat because, at the publish a proposed designation by information for the San Bernardino time of proposal, we concluded that December 1, 2000, and a final kangaroo rat in the San Jacinto Wash, these lands were not essential for the designation by December 1, 2001. The the continuity of kangaroo rat habitat conservation of the San Bernardino publication of our December 8, 2000, extending up the tributaries adjacent to kangaroo rat based on available proposal and this final rule are in occupied habitat, and slope, vegetation, information concerning status of the compliance with the stipulated and disturbance information; we have species in the specific areas and level of settlement agreement and subsequent re-defined the area designated as critical habitat disturbance and fragmentation. court orders. A detailed discussion of habitat on the Soboba Band of Luise˜no Only those lands that we believed to be our re-evaluation of the prudency of Indians Reservation. Additionally, we essential to the conservation of the San designating critical habitat for the San refined the 100 meter grid line used in Bernardino kangaroo rat based on the Bernardino kangaroo rat is located in the proposal to the essential critical best scientific and commercial data the Previous Federal Action section of habitat line along the edges of the two available at the time the proposal was the proposed designation. In short, our washes and the main portion of the river being developed were included in the re-evaluation of the prudency of on Tribal land and removed from the proposed critical habitat designation. VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19826 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 20. Comment: Several commenters habitat and was not within proposed designated as critical habitat (e.g., expressed concern over the inclusion of critical habitat. The grant has since been Etiwanda and San Sevine Channel south the former Norton Air Force Base in awarded to the airport authority. of State Route 30; all of Units 4, 5, and final critical habitat. 21. Comment: Emergency 6; various project development areas). Our Response: Portions of the lands maintenance activities for the County of Our Response: Where site-specific within the former Norton Air Force Base San Bernardino and the San Bernardino documentation was submitted to us (NAFB) were included in the proposed County Flood Control District should be providing a rationale and supporting designation of critical habitat for the exempted from designation within documentation as to why an area should San Bernardino kangaroo rat. Currently, critical habitat. not be designated critical habitat, we NAFB is in the process of being turned Our Response: Emergency evaluated that information in over to the San Bernardino County maintenance activities are not exempt accordance with the definition of Airport Authority and the Inland Valley from consultation under section 7 of the critical habitat pursuant to section 3 of Development Agency for use as a Act. The regulations at 50 CFR 402.05 the Act and made a determination as to regional airport. During the allow for informal consultation where whether modifications to the proposal development of the final designation, emergency circumstances mandate the were appropriate. As discussed in the we re-evaluated those lands proposed as need to consult in an expedited manner. background sections of the proposed critical habitat that fell within the Formal consultation should be initiated rule and this final rule, areas containing NAFB. Based on this re-evaluation and as soon as possible after the emergency smaller populations of the San refinement, most of the land within the is under control. We have conducted Bernardino kangaroo rat were removed former NAFB was not included in this programmatic consultations with FEMA from critical habitat in this final final critical habitat because it was and other Federal agencies for future designation because they were determined not to be essential to the anticipated emergency actions. These determined not to be essential to the conservation of the San Bernardino consultations can be conducted prior to long-term conservation of the San kangaroo rat. All areas north of (and the emergency and address anticipated Bernardino kangaroo rat. The basis for including) the runway have been response activities. In addition, there is this determination and removing them removed from the final critical habitat a Memorandum of Understanding from the final designation was based on designation because additional (MOU) between the Service and FEMA the information indicating that the small evaluation showed the area to be too which involves expedited consultation scattered populations or habitats highly degraded and fragmented to time frames. occurred in areas that were highly provide for conservation of the San 22. Comment: Several commenters fragmented by urban and agricultural Bernardino kangaroo rat. Areas south of expressed concern regarding the development or no longer subject to the runway, adjacent to or in the Santa inclusion of water and flood control hydrological and geomorphological Ana River channel, are still considered district properties and facilities (e.g., processes that would naturally maintain essential to the conservation of the San Riverside County Flood Control and alluvial sage scrub vegetation. Lands Bernardino kangaroo rat because these Water Conservation District, proposed as critical habitat that were support suitable habitat and existing Metropolitan Water District of Southern excluded from this final designation populations. California, City of Redlands) in the based on this re-evaluation included Further, we completed an informal proposed critical habitat areas. portions of Etiwanda and San Sevine consultation with the Federal Aviation Our Response: Lands proposed and channels within Unit 4, and Units 5 and Authority regarding two grants, a $7 designated in this final rule have been 6 in their entirety. million grant to construct a Joint Powers determined to be essential to the 24. Comment: Critical habitat should Authority training facility and another conservation of the San Bernardino be retained within the boundaries of grant between $5 and $20 million to kangaroo rat by providing biological and approved HCPs. HCPs cannot be viewed rehabilitate the main runway. In our physical requisites for the animals as a functional substitute for critical consultations on these two grants, survival and long-term conservation. In habitat designation, and they provide following the proposal of critical habitat developing our designation we inadequate protection and special for the San Bernardino kangaroo rat, we attempted to exclude those areas that do management considerations for the determined that the construction of the not currently contain the primary species and their habitat. Other JPA facility and the rehabilitation of the constituent elements essential to the commenters supported the exclusion of main runway will not adversely affect San Bernardino kangaroo rat, such as approved HCPs from critical habitat proposed critical habitat. The primary urban areas and land altered by active designation, and several commenters areas affected by these projects have agriculture or mining. However, due to wanted pending HCPs to be excluded, been removed from designated critical our minimum mapping scale and based as well. They supported their habitat because they were determined to on the photographic accuracy of our GIS recommendations by asserting that not be essential to the long-term data, some areas not containing the landowners will be reluctant to conservation of the San Bernardino primary constituent elements essential participate in HCPs unless they have kangaroo rat due to the degraded to the San Bernardino kangaroo rat were incentives, including the removal of condition of the area. included in designated critical habitat. critical habitat from HCP boundaries. Commenters were additionally Activities in which there is a Federal Our Response: The designation of concerned that the designation of nexus that occur in these areas would critical habitat should not deter critical habitat for the San Bernardino not trigger a consultation pursuant to participation in the Natural Community kangaroo rat would affect a $1.3 million section 7 of the Act unless those Conservation Program (NCCP) or HCP grant that the San Bernardino activities may affect a listed species or processes. Approvals issued under these International Airport Authority was may directly or indirectly affect primary processes include assurances of no applying for to construct a hanger. A constituent elements in adjacent critical additional mitigation through the HCP consultation with us pursuant to section habitat. No Surprises regulation (63 FR 8859). 7 of the Act was not necessary because 23. Comment: A number of We recognize that critical habitat is only the proposed action did not affect any commenters identified specific areas one of many conservation tools for San Bernardino kangaroo rats or their that they thought should not be federally listed species. HCPs are one of VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19827 the most important tools for reconciling agencies previously have been making 28. Comment: Consultations under land use with the conservation of listed ‘‘no effect’’ determinations within section 7 of the Act are required for species on non-Federal lands. Section unoccupied suitable habitat. Now, with projects (e.g., building, development) on 4(b)(2) of the Act allows us to exclude the designation of critical habitat the private property in critical habitat from critical habitat areas where the Federal agencies may be required to because an HCP is needed for these benefits of exclusion outweigh the consult and there could be an increase projects regardless of occupancy benefits of designation, provided the in ‘‘may effect’’ determinations, if any because there is a ‘‘may effect’’ to exclusion will not result in the primary constituent elements are critical habitat. extinction of the species. We believe effected by the proposed action. Our Response: We disagree with the that in most instances the benefits of Our Response: As discussed in this commenter that any development excluding HCPs from critical habitat rule and our economic analysis, project occurring in designated critical designations will outweigh the benefits consultations pursuant to section 7 of habitat for the San Bernardino kangaroo of including them. Currently, there are the Act would only occur for activities rat would require a Federal permit. A no approved and legally operative HCPs that may affect a federally listed species consultation pursuant to section 7 of the in which the San Bernardino kangaroo or critical habitat in which there is a Act would only be triggered if there was rat is a covered species and management Federal nexus. We acknowledge that a Federal action that may affect a listed is provided for the species’ long-term there may be some additional species or critical habitat. A Federal conservation. consultations pursuant to section 7 of action is any action funded, permitted 25. Comment: The Service violated the Act because of the designation or otherwise authorized by a Federal the Administrative Procedure Act and critical habitat for the San Bernardino action agency. Where there is no Federal Endangered Species Act by not making kangaroo rat. However, we believe that nexus, a consultation pursuant to the scientific data relied on in in the areas occupied by the species section 7 of the Act would not be formulating the proposed rule available (i.e., approximately 97.5 percent of triggered. If a Federal nexus does not for public review and comment despite designated critical habitat), Federal exist, we would work with the project requests from interested parties and that agencies should have already been proponent on the development of a HCP we should also inform the public of consulting with us on activities affecting and issuance of an incidental take areas that are occupied that we did not the San Bernardino kangaroo rat and its permit for actions that may affect a propose as critical habitat. habitat due to it being listed as a federally listed species. As part of this Our Response: In the proposed rule, federally endangered species. Further, process, we are required, pursuant to we stated that all supporting because the portion of critical habitat section 7 of the Act, to evaluate the documentation, including the references that is not currently known to be issuance of the incidental take permit and unpublished data used in the for the proposed action to ensure that occupied is located downstream of preparation of the proposed rule, would the action as proposed would not occupied habitat, activities occurring in be available for public inspection at the jeopardize the continued existence of this area with a Federal nexus may have Carlsbad Fish and Wildlife Office. A the species covered under the HCP, nor also been subjected to consultation public viewing room was made result in the destruction or adverse under section 7 of the Act. Therefore, available at the Carlsbad Fish and modification of critical habitat we believe that additional consultations, Wildlife Office where the proposed designated within the planning area of or efforts such as technical assistance, critical habitat units, superimposed on the HCP such that it would appreciably would be minimal as the result of the 7.5 minute topographic maps, could be reduce the likelihood of survival and designation of critical habitat for the inspected. In addition, we responded to recovery of the species. each request for GIS maps and data San Bernardino kangaroo rat. 29. Comment: The proposed critical supporting the rulemaking in a timely 27. Comment: Critical habitat for the habitat rule violates section 4(b)(8) of manner by providing copies of the maps San Bernardino kangaroo rat is needed the Act by not including (1) a summary and data. Additionally, data concerning because the current legal protections are of data used in the development of the the occurrences of the San Bernardino insufficient to protect the species and its proposal, (2) relationship of the data to kangaroo rat used in the analysis for the habitat (both occupied and unoccupied) proposed critical habitat, and (3) a proposed designation were also made from direct and indirect impacts. description of activities that may available to the public, if requested. Our Response: The San Bernardino adversely modify critical habitat. These data have also been provided to kangaroo rat and lands occupied by the Our Response: We disagree with the several of the local jurisdictions in species currently receive protection commenter that we violated section western Riverside and San Bernardino under sections 7, 9, and 10 of the Act. 4(b)(8) of the Act by not including a counties for use in the development of Much of the remaining habitat for the summary of data used in the the regional HCPs. The occurrence data San Bernardino kangaroo rat occurs in development of the proposal, did not and supporting documentation used in areas that are under the ACOE provide a discussion of the relationship the rulemaking are available for jurisdiction. The ACOE, as well as other of the data to proposed critical habitat, inspection at the Carlsbad Fish and Federal agencies, are required to consult and did not provide a description of Wildlife Office by appointment (Please with us when an action they permit, activities that may adversely modify see ADDRESSES Section of this rule). fund or authorize ‘‘may affect’’ a listed critical habitat. In the Background 26. Comment: The designation of species. Additionally, habitats used by section of this final rule, and the critical habitat would place an the San Bernardino kangaroo rat (e.g., proposal, we discuss at length the additional burden on landowners above Riversidian alluvial fan sage scrub, biology and ecology of the San and beyond what the listing of the coastal sage scrub, alluvial fan scrub) Bernardino kangaroo rat and the species would require. The number of are considered sensitive under relationship of this information to section 7 consultations will increase; California Environmental Quality Act proposed and final critical habitat. The areas where no San Bernardino and must be addressed during that relationship of this data to designated kangaroo rat are known to occur will process. We will continue to work with critical habitat is also discussed in the now be subject to consultations under local landowners to protect and enhance Primary Constituent Elements section section 7 of the Act since many Federal kangaroo rat habitat. and in the description of each of the VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19828 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations critical habitat units. Within these kangaroo rat provide those habitat the loss of the habitat is analyzed in discussions, we cite references or data components essential for the survival each section 7 consultation for effects to sources that our conclusions are based and conservation of this species. the baseline of listed species. on. A list and copy of each data source 31. Comment: Critical habitat Issue 3: Economic Issues used in the development of this represents the Service’s efforts to rulemaking are within the supporting control local government land use and 33. Comment: One commenter documentation and available for to usurp local governments’ rights to expressed concern over the use of inspection at the Carlsbad Fish and regulate land uses. Service files, in particular those of the Wildlife Office (please refer to Our Response: The designation of Carlsbad Fish and Wildlife Office, to ADDRESSES section). Further, the GIS critical habitat does not create a extrapolate future consultations, project data layers used in the development of management plan, establish a preserve, modifications, and re-initiation of critical habitat boundaries are discussed reserve, or wilderness area where no consultations based on consultation in the Methods and Criteria Used To actions are allowed, it does not establish histories for the purpose of evaluating Identify Critical Habitat sections of the numerical population goals, prescribe potential economic effects of the proposed rule and this final rule. Copies specific management actions (inside or designation. The commenter cited the of these data layers are also available for outside of critical habitat), or directly findings of a recent Government inspection at the Carlsbad Fish and affect areas not designated as critical Accounting Office report that indicated Wildlife Office. The description of habitat (as discussed in the Critical that the files at the Carlsbad Fish and activities that may adversely modify Habitat section of this rule). Critical Wildlife Office were unorganized, critical habitat is discussed in the habitat does not ‘‘usurp’’ local incomplete, and poorly managed. Section 7 section of this rule. Here we governments’ rights to regulate land Our Response: As a result of the list those activities that would result in uses. However, the designation may Government Accounting Office’s review the destruction or adverse modification result in some additional effort by the of the Carlsbad Fish and Wildlife of critical habitat for the San Bernardino State and local jurisdictions to review Office’s files and the subsequent report kangaroo rat. proposed actions in designated critical indicating some weaknesses in file 30. Comment: Several commenters habitat pursuant to the California management, we have instituted an asserted that too much critical habitat Environmental Quality Act and other electronic file management system for the San Bernardino kangaroo rat was State or local land use regulations. which has corrected many of the being proposed on private land and that 32. Comment: One commenter apparent weaknesses. Because the San critical habitat should only be asserted that we should account for the Bernardino kangaroo rat has only been designated on Federal lands. loss of critical habitat, and that this loss listed since 1998, and it has been a Our Response: The definition of should be counted against the highly scrutinized listed species, files critical habitat in section 3(5)(A) of the permissible ‘‘take’’ as per the California and information relevant to the San Act includes ‘‘(i) specific areas within Department of Fish and Game’s Natural Bernardino kangaroo rat have been, and the geographic area occupied by a Community Conservation Program are, well organized, complete, and species, at the time it is listed in guidelines. properly managed. Therefore, we have a accordance with the Act, on which are Our Response: The referenced NCCP high level of confidence in information found those physical or biological guidelines directs habitat loss to areas extrapolated from those files. features (I) essential to the conservation with low long-term conservation Additionally, as discussed in the draft of the species and (II) that may require potential that will not preclude economic analysis, values associated special management considerations or development of adequate preserves and with future costs attributable to future protection; and (ii) specific areas ensures that connectivity between areas consultations, project modifications, etc. outside the geographic area occupied by of high habitat value will be maintained. are averaged from data collected at Fish a species at the time it is listed, upon Under the NCCP guidelines, and Wildlife Offices across the country. a determination that such areas are jurisdictions that are participating in the 34. Comment: The public comment essential for the conservation of the program can authorize the loss of or period for the Economic Analysis must species’’. The term ‘‘conservation’’, as ‘‘take’’ of up to five percent of coastal be at least 60 days long. defined in section 3(3) of the Act, means sage scrub vegetation within their Our Response: According to Code of ‘‘to use and the use of all methods and planning area through a habitat loss Federal Regulations (CFR) 424.16 (c)(2), procedures which are necessary to bring permit that requires the concurrence of we are required to have a public any endangered species or threatened the U.S. Fish and Wildlife Service and comment period of ‘‘at least 60 days species to the point at which the the California Department of Fish and * * * following publication in the measures provided pursuant to the Act Game while they are developing their Federal Register of a rule proposing the are no longer necessary.’’ regional habitat conservation plan. In listing, delisting, or reclassification of a In designating critical habitat for the these enrolled subregions, habitat loss is species, or the designation or revision of San Bernardino kangaroo rat, we regulated by the local jurisdiction and critical habitat.’’ We published the identified those areas that we know are Service oversight is not dependent upon proposed rule to designate critical essential to the conservation of this a Federal nexus. Therefore, the habitat for the San Bernardino kangaroo species, regardless of land ownership. participating jurisdictions are rat on December 8, 2000 (65 FR 77178), The Act does not direct us to limit the responsible for tracking the habitat loss and accepted comments from the public designation to Federal lands, or take authorized under their habitat loss for 60 days, until February 6, 2001. The into consideration land ownership permit. Currently, the local jurisdictions comment period was reopened from when developing the designation. in which critical habitat for the San September 4, 2001, to October 4, 2001 Therefore, we analyzed the area within Bernardino kangaroo rat is being (66 FR 46251), to allow for additional the current range of this San Bernardino designated are not participating in the comments on the proposed designation, kangaroo rat to determine which areas NCCP program. and comments on the draft economic are biologically essential to its Additionally, even though habitat loss analysis on the proposed critical habitat. conservation. The areas designated as under the NCCP is not applicable to We have fulfilled our requirements critical habitat for the San Bernardino consultations under section 7 of the Act, under the Act and the CFR regarding the VerDate 11 public comment period for the proposed Affairs web site and included it in our the biological benefits of the designation of critical habitat for the Addendum. In addition, we met with designation. San Bernardino kangaroo rat. the Tribe during the development of the 39. Comment: Specific lands should 35. Comment: We violated the critical habitat designation (September be excluded from proposed critical Regulatory Flexibility Act by not 19, 2001) to discuss the potential habitat pursuant to section 4(b)(2) of the preparing and providing for public impacts on Tribal lands. After Act because the economic effects of comment a detailed initial regulatory discussions with the Tribe and analysis excluding particular areas outweigh the flexibility analysis at the same time as of our biological and physical data, we benefits. the proposed rule. have revised the boundaries relative to Our Response: Section 4(b)(2) of the Our Response: The Regulatory Tribal lands. Act and 50 CFR 424.19 requires us to Flexibility Act, as amended by the 37. Comment: Several commenters consider the economic impact, and any Small Business Regulatory Enforcement expressed concern that the proposed other relevant impact, of specifying any Fairness Act, generally requires an rule was not accompanied by an particular area as critical habitat. We agency to prepare a regulatory flexibility economic analysis as required by law. may exclude an area from critical analysis of any rule subject to notice Our Response: Section 4(b)(2) of the habitat if we determine that the benefits and comment rulemaking requirements Act and 50 CFR 424.19 requires us to of exclusion outweigh the benefits of under the Administrative Procedure consider the economic impact, and any designating the area as critical habitat, Act, or any other statute, unless the other relevant impact, of specifying any unless that exclusion will lead to agency certifies that the rule will not particular area as critical habitat. We extinction of the species. As discussed have a significant economic impact on published our proposed designation of in this final rule and our economic a substantial number of small entities. critical habitat for the San Bernardino analyses for this rulemaking, we have determined that no significant adverse We are certifying that this rule will not kangaroo rat in the Federal Register on have a significant economic impact on economic effects will result from this December 8, 2000 (65 FR 77178). At that a substantial number of small entities critical habitat designation. Further, time, our Division of Economics and and as a result, neither an initial or final based on our re-evaluation of lands their consultants Industrial Economics, regulatory flexibility analysis is proposed as critical habitat, we believe Inc. initiated the draft economic required. Please refer to the sections, that the designation of the lands in this analysis. The draft Economic Analysis Economic Analysis and Regulatory final rule as critical habitat outweigh the of the proposed critical habitat Flexibility Act for further discussions benefits of their exclusion from being designation was made available for concerning the potential economic designated as critical habitat. public comment and review beginning effects for this designation. Consequently, none of the proposed 36. Comment: Demographic and on September 4, 2001 (66 FR 46251). lands have been excluded from the economic information regarding the Following a 30-day public comment designation based on economic impacts Soboba Band of Luisen˜ o Indians was period on the proposal and draft or other relevant factors pursuant to included in the Draft Economic Economic Analysis, a final Addendum section 4 (b)(2) of the Act. Analysis of Critical Habitat Designation to the Economic Analysis was written 40. Comment: The Service is obligated for the San Bernardino kangaroo rat, yet based on public comments. Both the to consider ‘‘other relevant impacts’’ in they were not personally contacted draft Economic Analysis and final our analysis pursuant to section 4(b)(2) regarding this information. Addendum were used in the of the Act for potential exclusions from Our Response: Although we try to development of this final designation of critical habitat such as the ‘‘projected’’ contact as many stakeholders as critical habitat for the San Bernardino housing crisis in southern California. possible, we are not able to contact kangaroo rat. Please refer to the Our Response: As previously every potential stakeholder in order for Economic Analysis section of this final discussed in this final rule, section us to develop a draft economic analysis rule for a more detailed discussion of 4(b)(2) of the Act and 50 CFR 424.19 due to time and budget constraints. these documents. require us to consider the economic Especially in light of the limited 38. Comment: The draft Economic impact, and any other relevant impact, resources and time available to us, we Analysis does not provide enough of specifying any particular area as believe that we were adequately able to information to conduct an analysis critical habitat. We may exclude an area understand the issues of concern to pursuant to section 4(b)(2) of the Act. from critical habitat if we determine that local communities based on public Our Response: We disagree that the the benefits of exclusion outweigh the comments submitted on the proposed Economic Analysis does not provide benefits of designating the area as rule, on transcripts from public sufficient information to make an critical habitat, unless that exclusion hearings, and from detailed discussions informed decision under section 4(b)(2) will lead to extinction of the species. among our staff and with of the Act. We believe that the We are aware that some of the land representatives from other Federal, Economic Analysis very specifically that we have designated as critical State, Tribal, and local government discusses likely impacts to entities habitat for the San Bernardino kangaroo agencies, as well as some landowners. based on probable land use activities. rat faces significant development Information that was used in the draft Furthermore, the Addendum very pressure. Development activities can Economic Analysis regarding the specifically addresses weaknesses in the have a significant effect on the land and Soboba Band of Luisen˜ o Indians was draft Economic Analysis that were the species dependent on the habitat obtained from existing documents identified during the public comment being developed. We also recognize that available to the Service. Based on period. Taken together, we believe both many large-scale development projects comments during the public comment documents adequately identify where are subject to a Federal nexus. As a period, we attempted to update the the potential economic impacts of the result, we expect that future information in the Addendum to the proposed rule may lie and the consultations will, in part, include Economic Analysis on the Soboba Band assumptions that were necessary to planned and future real estate of Luisen˜ o Indians. We obtained generate these estimates. Therefore, they development. publicly available information regarding are sufficient to identify any areas However, we believe that these the Tribe from a U.S. Bureau of Indian where the economic costs may outweigh resulting consultations will not take VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19830 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations place solely with respect to critical drafted. This final Addendum addressed economic analyses for critical habitat habitat issues. While it is true that the concerns raised through the rulemakings, our ability to actually development activities can adversely comment period and took into measure these benefits in any affect designated critical habitat, we consideration new data and a revised meaningful way is difficult and believe that our future consultations methodology. Please refer to the imprecise at best. While we are aware of regarding new housing development Economic Analysis section of this final many studies that attempt to identify will take place because such actions rule for a more detailed discussion of the value (in monetary units) of listed have the potential to adversely affect a these documents. Copies of both the species, open space, the use of public federally listed species. We believe that draft Economic Analysis and the final lands for recreational purposes, the cost such planned projects would require a Addendum are in the supporting record of sprawl, etc.; few of these studies section 7 consultation regardless of the for this rulemaking and can be provide any meaningful information critical habitat designation. Again, as we inspected by contacting the Carlsbad that can be used to develop estimates have previously mentioned, section 7 of Fish and Wildlife Office (refer to the associated with a critical habitat the Act requires Federal agencies to ADDRESSES section of this rule). designation. The designation of critical consult with us whenever actions they 43. Comment: The Economic Analysis habitat does not necessarily inhibit fund, authorize, or carry out may affect failed to adequately estimate various development of private property, which a listed species or its critical habitat. potential economic impacts. makes it difficult to draw upon the 41. Comment: Several commenters Our Response: In the Addendum to literature of the economic values of were concerned that the critical habitat the Economic Analysis of Critical open space to identify potential benefits designation would have significant Habitat Designation for the San of critical habitat designation. Also, adverse economic impacts to particular Bernardino Kangaroo Rat we conducted while some economic studies attempt to projects, agencies, and/or the economic a revised analysis to address all measure the social value of protecting recovery of entire region. concerns that were brought up during endangered species, the species that are Our Response: During the the public comment process. In some often valued are well known and easy development of critical habitat for the instances we obtained additional data to identify (e.g. bighorn sheep) in San Bernardino kangaroo rat, we and increased our estimates, in other contrast to other species such as the San conducted an analysis of the economic instances we presented arguments/ Bernardino kangaroo rat. Furthermore, impacts that were likely to occur as a rebuttals to concerns mentioned by the values identified in these studies result of the designation. The results of particular commenters which explained would be most closely associated with our analysis are contained in our draft why our estimate might be more the listing of a species as endangered or Economic Analysis and the final accurate/appropriate. Please refer to the threatened because the listing serves to Addendum to the Economic Analysis. Addendum to the Economic Analysis provide the majority of protection and Because the areas being designated are for a more thorough discussion conservation benefits under the Act. primarily occupied, our Economic regarding potential economic impacts. While we will continue to explore Analysis concluded that the designation 44. Comment: The draft Economic ways that will allow us to provide more would not result in significant economic Analysis had errors in the land meaningful descriptions of the potential impacts to the lands being designated as ownership data. benefits associated with a critical critical habitat or the economic recovery Our Response: In accordance with habitat designation, we believe that due of the region as a whole. section 3(5)(A)(i) of the Act and to the current lack of available data 42. Comment: The Draft Economic regulations at 50 CFR 424.12, we are specific to these rulemakings, along Analysis of Critical Habitat Designation directed to use the best scientific and with the time and resource constraints for the San Bernardino Kangaroo Rat is commercial data available in imposed upon the Service, the benefits flawed, inaccurate, contains numerous determining which areas to propose as of a critical habitat designation are best errors, and makes improper critical habitat. We recognize that data expressed in biological terms that can assumptions. used in our analysis may not be the then be weighed against the expected Our Response: As previously most accurate relative to land social costs of the rulemaking. discussed, section 4(b)(2) of the Act and ownership. The data concerning land 46. Comment: The draft Economic 50 CFR 424.19 requires us to consider ownership is obtained from a variety of Analysis violates the Endangered the economic impact, and any other sources including Federal and State Species Act and the Administrative relevant impact, of specifying any agencies, data clearing-houses, and local Procedure Act by limiting its scope to a particular area as critical habitat. We and county jurisdictions. Once data is ten year time frame. published our proposed designation of obtained by the lead agency or data Our Response: Neither the critical habitat for the San Bernardino source, time is required to process and Endangered Species Act nor the kangaroo rat in the Federal Register on verify the data, which may take up to Administrative Procedure Act address December 8, 2000 (65 FR 77178). At that one to two years. Consequently, the data limitations on a time frame for the scope time, our Division of Economics and that we obtain for our analysis may be of economic analyses for critical habitat their consultants Industrial Economics, one to two years older than what is rules. In developing the Economic Inc., initiated the draft Economic reflective of current land ownership. As Analysis we attempted to estimate the Analysis. The draft Economic Analysis best as possible, we attempt to correct impacts of critical habitat designation of the proposed critical habitat discrepancies or errors that are detected on activities that are ‘‘reasonably designation was made available for in the data. However, there will most foreseeable.’’ Small changes in current review and public comment during a likely be some factor of error in the data. trends, plans, and projections (in land 30-day public comment period 45. Comment: No monetary benefits use and economic estimates) may have beginning on September 4, 2001 (66 FR for the survival of the species were large effects on long-range predictions. 46251). Based on the public comments included in the draft Economic Independent of these uncertainties, the received during the open comment Analysis. endangered status of the kangaroo rat period, a final Addendum to the Our Response: While we have may change in the future (e.g. from Economic Analysis of critical habitat for acknowledged the potential for society endangered to recovered). A change in the San Bernardino kangaroo rat was to experience such benefits in our status may reduce the need for the VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19831 critical habitat designation. Thus, in considerable protection before the the area is designated as critical habitat. order to reduce uncertainty, the analysis designation of critical habitat in 1997. Only after considering how these bases estimates on activities that are As a result, the economic analysis activities most likely will be affected likely to occur within a ten-year time concluded that the resulting impacts of given existing conditions, does the horizon. Cost estimates beyond this ten- the designation would be insignificant. analysis estimate how the designation of year time horizon are likely to be highly This conclusion was based on the facts critical habitat could impact forecasted inaccurate because socioeconomic and that: (1) The designation of critical activities. other conditions may shift dramatically. habitat only requires the Federal This approach to baseline definition 47. Comment: The draft Economic government to consider whether their employed in the analysis of the Analysis is not a full analysis. It is still actions could adversely modify critical designation of critical habitat for the an incremental analysis, and it is not in habitat; and (2) the Federal government San Bernardino kangaroo rat is similar compliance with the recent Tenth already was required to consult on to that employed in previous Circuit Court ruling on the southwestern actions that may adversely affect the approaches, in that the goal is to willow flycatcher critical habitat. flycatcher and to ensure that its actions understand the incremental effects of a Our Response: On May 11, 2001, the did not jeopardize the flycatcher. designation. However, it does provide U.S. Court of Appeals in the Tenth For a Federal action to adversely more extensive discussion of pre- Circuit issued a ruling that addressed modify critical habitat the action would existing baseline conditions than the analytical approach used by the have to adversely affect the critical previous critical habitat economic Service to estimate the economic habitat’s constituent elements or their analyses. Typical economic analyses impacts associated with the critical management in a manner likely to concentrate mostly on identifying and habitat designation for the southwestern appreciably diminish or preclude the measuring, to the extent feasible, willow flycatcher. Specifically, the role of that habitat in the recovery of the economic effects most likely to occur court rejected the approach used by the species. The Service defines jeopardy, because of the action being considered. Service to define and characterize which was a pre-existing condition Baseline conditions, while identified baseline conditions. Defining the prior to the designation of critical and discussed, are rarely characterized baseline is a critical step within an habitat, as to ‘‘engage in an action that or measured in any detailed manner economic analysis, as the baseline in reasonably would be expected, directly because by definition, these conditions turn identifies the type and magnitude or indirectly, to reduce appreciably the remain unaffected by the outcome of the of incremental impacts that are likelihood of both the survival and decision being contemplated. While the attributed to the policy or change under recovery of a listed species in the wild goal of this analysis remains the same as scrutiny. In the flycatcher analysis, the by reducing the reproduction, numbers, previous critical habitat economic Service defined baseline conditions to or distribution of that species.’’ The analyses, that is to identify and measure include the effects associated with the recovery standard is used in the the estimated incremental effects of the listing of the flycatcher and, as is typical definition of both terms and as a result, proposed rulemaking, the information of many regulatory analyses, proceeded the additional protection afforded the provided in this analysis concerning to present only the incremental effects flycatcher due to the designation of baseline conditions is more detailed of the rule. critical habitat was determined to be than that presented in previous studies. The court’s decision, in part, reflects negligible. The final addendum to this analysis the uniqueness of many of the more The court, however, considered why provided further information recent critical habitat rulemakings. Congress would want an economic concerning the baseline and potential Specifically, the flycatcher was initially analysis performed by the Service when incremental effects of the designation of listed by the Service as an endangered making a decision about designating critical habitat for the San Bernardino species in 1995, several years prior to critical habitat if in fact the designation kangaroo rat. designating critical habitat. Once a of critical habitat adds no significant species has been officially listed as additional protection to a listed species. Summary of Changes From the endangered under the Act, it is afforded In the court’s mind, ‘‘(b)ecause (the) Proposed Rule special protection under Federal law. In economic analysis done using the In the development of our final particular, it is illegal to ‘‘take’’ a Service’s baseline model is rendered designation of critical habitat for the protected species without authorization essentially without meaning by 50 CFR San Bernardino kangaroo rat we made once it is listed. Take is defined to mean 402.02, we conclude Congress intended several significant changes to our harass, harm, pursue, hunt, shoot, that the Service conduct a full analysis proposed designation based on a review wound, kill, trap, capture, collect, or to of all of the economic impacts of a of public comments received on the attempt to engage in any such conduct. critical habitat designation, regardless of proposed designation and the draft Implementing regulations promulgated whether those impacts are attributable Economic Analysis and a re-evaluation by the Service further define ‘‘harm’’ to co-extensively to other causes.’’ of lands proposed as critical habitat. As mean ‘‘. . . an act which actually kills Even though the court’s ruling applies discussed in the Methods and Criteria or injures wildlife. Such an act may only to the designation of critical habitat Used To Identify Critical Habitat include significant habitat modification for the southwestern willow flycatcher, sections of this final rule, we re- or degradation where it actually kills or this analysis attempts to comply with evaluated the lands proposed as critical injures wildlife by significantly the court’s instructions by revising the habitat for the San Bernardino kangaroo impairing essential behavioral patterns, approach to defining baseline rat based on public comment, more including breeding, feeding, or conditions within the areas of proposed recent aerial photography, and sheltering.’’ critical habitat. Specifically, this additional occurrence information Because the southwestern willow analysis presents a detailed discussion obtained following the publication of flycatcher was initially listed as of existing Federal, State, and local the proposal. The refinements to the endangered by the Service in 1995, requirements and both current and amount of land determined to be several years before the designation of planned activities within proposed essential for the San Bernardino critical habitat, the flycatcher, along critical habitat that are reasonably kangaroo rat and incorporated into this with its habitat, already received expected to occur regardless of whether final designation resulted in a net VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19832 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations reduction of approximately 8,938 ha Tribal land to 290 ha (710 ac). Please Bernardino kangaroo rat as an (22,113 ac) lands. The primary changes refer to our response to Comment 18 endangered species under the Act, as for this final designation include the and the section Government-to- well as any potential effect of the following: (1) The removal of the Jurupa Government Relationship With Tribes critical habitat designation above and Hills and Reche Canyon proposed for further information pertaining to the beyond those regulatory and economic critical habitat units (units 5 and 6, inclusion of lands within the Soboba impacts associated with listing. To respectively), and the removal of the Band of Luisen˜ o Indians Reservation in quantify the proportion of total potential San Timoteo Canyon portion of critical habitat. economic impacts attributable to the proposed critical habitat unit 1; (2) the Lastly, for the proposed rule, we critical habitat designation, the analysis removal of the majority of lands within identified a line around those lands we evaluated a ‘‘without critical habitat’’ the former Norton Air Force Base from believed to be essential to the baseline and compared it to a ‘‘with designated critical habitat; (3) a conservation of the San Bernardino critical habitat’’ scenario. The ‘‘without reduction in the lands being designated kangaroo rat. We then described these critical habitat’’ baseline represented the as critical habitat on the Soboba Tribal essential habitat lines using a 100-meter current and expected economic activity Reservation; and (4) a refinement in our UTM grid. By using this grid, lands not under all modifications prior to the mapping methodology. essential to the conservation of the critical habitat designation, including Based on available data and species were included in critical habitat protections afforded the species under evaluation of more recent aerial as a relic of the square grid cell. To Federal and State laws. The difference photography, we determined that we better describe these lands we between the two scenarios measured the did not have sufficient information to determined to be essential for this final net change in economic activity indicate that the lands within Jurupa designation, we defined our essential attributable to the designation of critical Hills and Reche Canyon proposed as line using UTM coordinates instead of habitat. The categories of potential costs critical habitat units 5 and 6, the 100-meter UTM grid. We were able considered in the analysis included the respectively, and those lands within the to use the UTM coordinates for the costs associated with (1) conducting San Timoteo Canyon portion of critical habitat designation due to the section 7 consultations associated with proposed critical habitat unit 1 are existence of readily identifiable urban the listing or with the critical habitat, essential to the long-term conservation features that defined the edge of the including technical assistance; (2) of the San Bernardino kangaroo rat. critical habitat. This resulted in a better modifications to projects, activities, or Each of these areas contains small refinement of the boundaries of critical land uses resulting from the section 7 isolated populations of the San habitat along the urban interface and a consultations; (3) uncertainty and Bernardino kangaroo rat. We believe reduction and removal of approximately public perceptions resulting from the these areas are not essential due to 2,024 ha (5,000 ac) of lands from the designation of critical habitat; and (4) habitat disturbance and encroachment final designation that we determined potential offsetting beneficial costs and the degree of isolation due to urban not to be essential to the conservation of associated with critical habitat development. Consequently, these lands San Bernardino kangaroo rat. including educational benefits. were removed from the final designation The majority of consultations Economic Analysis of critical habitat for the San Bernardino resulting from the critical habitat kangaroo rat. Section 4(b)(2) of the Act requires us designation for the San Bernardino Based on our re-evaluation and to designate critical habitat on the basis kangaroo rat are likely to address land refinement during the development of of the best scientific and commercial development, road construction or road this final rule, we determined that most information available, and to consider expansion activities, sand and gravel of the land within the former NAFB was the economic and other relevant mining activities, and water too highly degraded to provide for the impacts of designating a particular area management activities. The draft conservation of the species and, as critical habitat. We may exclude areas analysis estimated that the critical therefore, was removed from this final from critical habitat upon a habitat designation would not result in designation. Those lands south of the determination that the benefits of such a significant economic impact, and runway and adjacent to the Santa Ana exclusions outweigh the benefits of estimated the potential economic effects River channel have been determined to specifying such areas as critical habitat. due to the designation over a 10-year be essential to the long-term We cannot exclude such areas from period ranging between $4.4 to $28.2 conservation of the San Bernardino critical habitat when such exclusion million. kangaroo rat due to the existing suitable will result in the extinction of the Following the close of the comment habitat and current populations that species. period on the draft economic analysis, occupy this area. Following the publication of the a final addendum was completed which In our proposed critical habitat rule, proposed critical habitat designation, a incorporated public comments on the we indicated that approximately 465 ha draft Economic Analysis was conducted draft analysis and a re-evaluation of the (1,150 ac) of lands within the Soboba to estimate the potential economic effect analysis of potential economic effects of Band of Luisen˜ o Indians Reservation in of the proposed designation. The draft the designation. Based on this new western Riverside County were essential analysis was made available for public analysis, it was determined that there for the conservation of the San review on September 4, 2001 (66 FR would be the potential for additional Bernardino kangaroo rat. In the 46251). We accepted comments on the consultations and assistance over and development of the final critical habitat draft analysis until October 4, 2001. above the estimate projected in the draft designation for the San Bernardino Additionally we held two public analysis. Subsequently, the addendum kangaroo rat, we re-evaluated these hearings on the proposed designation concluded that the designation may Tribal lands to determine if they were and the draft Economic Analysis on result in potential economic effects essential to the conservation of the September 20, 2001, in San Bernardino, ranging from between $15.7 to $130.7 kangaroo rat and whether they should California. million over a 10-year period. The be designated as critical habitat. The Our draft Economic Analysis addendum concluded that economic result of this analysis and refinement evaluated potential future effects impacts anticipated from the was the reduction of critical habitat on associated with the listing of the San designation of critical habitat for the VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19833 San Bernardino kangaroo rat were not as ‘‘jeopardy’’ under the Act. agency is required to publish a notice of significant. Additionally, these values Accordingly, the designation of areas rulemaking for any proposed or final may be an overestimate of the potential within the geographic range occupied rule, it must prepare and make available economic effects of the designation by the San Bernardino kangaroo rat has for public comment a regulatory because the analysis was based on the little, if any, incremental impacts on flexibility analysis that describes the proposal, and the final critical habitat what actions may or may not be effects of the rule on small entities (i.e., was reduced by approximately 8,900 ha conducted by Federal agencies or non- small businesses, small organizations, (22,000 ac), including several units Federal persons that receive Federal and small government jurisdictions). proposed for designation. authorization or funding. Non-Federal However, no regulatory flexibility A more detailed discussion of our persons who do not have a Federal analysis is required if the head of the analyses are contained in the Draft ‘‘sponsorship’’ of their actions are not agency certifies the rule will not have a Economic Analysis of Proposed Critical restricted by the designation of critical significant economic impact on a Habitat Designation for the San habitat although they continue to be substantial number of small entities. Bernardino kangaroo rat (September bound by the provisions of the Act The SBREFA amended the Regulatory 2001) and the Addendum to Economic concerning ‘‘take’’ of the species. The Flexibility Act to require Federal Analysis of Critical Habitat Designation designation of areas as critical habitat agencies to provide a statement of the for the San Bernardino kangaroo rat where section 7 consultations would not factual basis for certifying that a rule (March 2002). Both documents are have occurred but for the critical habitat will not have a significant economic included in the supporting designation may have impacts on what effect on a substantial number of small documentation for this rule making and actions may or may not be conducted by entities. In this rule, we are certifying available for inspection at the Carlsbad Federal agencies or non-Federal persons that the critical habitat designation for Fish and Wildlife Office (refer to who receive Federal authorization or the San Bernardino kangaroo rat will ADDRESSES Section). funding that are not attributable to the not have a significant effect on a species listing. These impacts were substantial number of small entities. Required Determinations evaluated in our economic analysis The following discussion explains our Regulatory Planning and Review (under section 4 of the Act; see rationale. Economic Analysis section of this rule). Small entities include small This document is a significant rule b. This rule, as designated, will not organizations, such as independent non- and has been reviewed by the Office of create inconsistencies with other profit organizations, small governmental Management and Budget (OMB) in agencies’ actions. As discussed above, jurisdictions, including school boards accordance with Executive Order 12866. Federal agencies have been required to and city and town governments that a. This rule, as designated, will not ensure that their actions do not serve fewer than 50,000 residents, as have an annual economic effect of $100 jeopardize the continued existence of well as small businesses. Small million or more or adversely affect an the San Bernardino kangaroo rat since businesses include manufacturing and economic sector, productivity, jobs, the the listing in 1998. The prohibition mining concerns with fewer than 500 environment, or other units of against adverse modification of critical employees, wholesale trade entities government. A cost-benefit and habitat is not expected to impose any with fewer than 100 employees, retail economic analysis therefore is not significant restrictions in addition to and service businesses with less than $5 required. The San Bernardino kangaroo those that now exist in those areas million in annual sales, general and rat was listed as an endangered species currently known to be occupied by the heavy construction businesses with less in 1998. Since that time, we have San Bernardino kangaroo rat, an than $27.5 million in annual business, conducted ten formal section 7 estimated 97.5 percent of designated special trade contractors doing less than consultations with other Federal critical habitat. Because of the potential $11.5 million in annual business, and agencies to ensure that their actions for impacts on other Federal agency agricultural businesses with annual would not jeopardize the continued activities, we will continue to review sales less than $750,000. To determine existence of the species. this action for any inconsistencies with if potential economic impacts to these The areas designated as critical other Federal agency actions. small entities are significant, we habitat are within the geographic range c. This rule, as designated, will not consider the types of activities that occupied by the San Bernardino materially affect entitlements, grants, might trigger regulatory impacts under kangaroo rat and are considered user fees, loan programs, or the rights this rule as well as the types of project predominately occupied, with less than and obligations of their recipients. modifications that may result. In 2.5 percent of the lands designated not Federal agencies are required to ensure general, the term ‘‘significant economic known to be currently occupied. Under that their activities do not jeopardize the impact’’ is meant to apply to a typical the Act, critical habitat may not be continued existence of the species, and, small business firm’s business adversely modified by a Federal agency as discussed above, we do not anticipate operations. action; it does not impose any that the adverse modification Current activities with Federal restrictions on non-Federal persons prohibition (resulting from critical involvement that may require unless they are conducting activities habitat designation) will have any consultation include: regulation of funded or otherwise sponsored or incremental effects in areas of occupied activities affecting waters of the United permitted by a Federal agency. Section habitat. States by the ACOE under section 404 7 requires Federal agencies to ensure d. OMB has determined that this rule of the Clean Water Act; regulation of that they do not jeopardize the may raise novel legal or policy issues water flows, damming, diversion, and continued existence of the species. and, as a result, this rule has undergone channelization by any Federal agencies; Based upon our experience with this OMB review. Regulatory Flexibility Act regulation of grazing, mining, and species and its needs, we conclude that (5 U.S.C. 601 et seq.) recreation by the BLM, Forest Service, any Federal action or authorized action Under the Regulatory Flexibility Act or the Service; road construction, that could potentially cause adverse (5 U.S.C. 601 et seq., as amended by the maintenance, and right of way modification of designated critical Small Business Regulatory Enforcement designation; regulation of agricultural habitat would currently be considered Act (SBREFA) of 1996), whenever an activities; regulation of airport VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19834 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations improvement activities by the Federal Copies of these documents are in the scope of authority of the Federal agency Aviation Administration; hazard supporting record for the rulemaking involved in the consultation. mitigation and post-disaster repairs and are available at the Carlsbad Fish Nonetheless, the economic analysis funded by the Federal Emergency and Wildlife Office (refer to ADDRESSES provided an estimate of the number of Management Agency; construction of section). small businesses that could experience communication sites licensed by the In general, two different mechanisms significant economic impact. The Federal Communications Commission; in section 7 of the Act consultations analysis conservatively assumed the and activities funded by the U.S. could lead to additional regulatory unit cost to a private party for Environmental Protection Agency, requirements. First, if we conclude in a participating in a section 7 consultation Department of Energy, or any other biological opinion, that a proposed and any associated project modification Federal agency. In the Economic action is likely to jeopardize the was the upper-bound estimate identified Analysis for the proposed rule, we continued existence of a species or in the analysis. Under such an found that the proposed designation adversely modify its critical habitat, we assumption, the analysis concluded that could potentially impose total economic will make every effort to offer less than two percent of small business costs for consultations and ‘‘reasonable and prudent alternatives.’’ could be significantly impacted by the modifications to projects to range Reasonable and prudent alternatives are proposed designation. between $15.7 to $130.7 million dollars alternative actions that can be In summary, we have considered over a ten year period. implemented in a manner consistent whether this rule could result in In determining whether this rule with the scope of the Federal agency’s significant economic effects on a could ‘‘significantly affect a substantial legal authority and jurisdiction, that are substantial number of small entities. We number of small entities,’’ the Economic economically and technologically have determined, for the above reasons, Analysis first determined whether feasible, and that would avoid that it will not affect a substantial critical habitat could potentially affect a jeopardizing the continued existence of number of small entities. Furthermore, ‘‘substantial number’’ of small entities listed species or destroying or adversely we believe that the potential compliance in counties supporting critical habitat modifying critical habitat. A Federal costs for the number of small entities areas. While SBREFA does not agency and an applicant may elect to that may be affected by this rule will not explicitly define ‘‘substantial number,’’ implement a reasonable and prudent be significant. Therefore, we are the Small Business Administration, as alternative associated with a biological certifying that the designation of critical well as other Federal agencies, have opinion that has found jeopardy or habitat for the San Bernardino kangaroo interpreted this to represent an impact adverse modification of critical habitat. rat will not have a significant economic on 20 percent or greater of the number An agency or applicant could impact on a substantial number of small of small entities in any industry. Based alternatively choose to seek an entities. A regulatory flexibility analysis on the past consultation history of the exemption from the requirements of the is not required. kangaroo rat, the economic analysis Act or proceed without implementing anticipated that the designation of the reasonable and prudent alternative. Small Business Regulatory Enforcement critical habitat could affect small However, unless an exemption was Fairness Act (5 U.S.C. 804(2)) businesses associated with six different obtained, the Federal agency or industries, including residential, applicant would be at risk of violating As discussed above, this rule is not a commercial, and industrial section 7(a)(2) of the Act if it chose to major rule under 5 U.S.C. 804(2), the development; mining for sand and proceed without implementing the Small Business Regulatory Enforcement gravel, airport activities, and water reasonable and prudent alternatives. Fairness Act. This final designation of conservation and supply activities. Second, if we find that a proposed critical habitat: (a) does not have an To be conservative (i.e., more likely action is not likely to jeopardize the annual effect on the economy of $100 overstate impacts than understate them), continued existence of a listed animal million; (b) will not cause a major the economic analysis assumed that a species, we may identify reasonable and increase in costs or prices for unique company will undertake each of prudent measures designed to minimize consumers, individual industries, the consultations forecasted in a given the amount or extent of take and require Federal, State, or local government year, and so the number of businesses the Federal agency or applicant to agencies, or geographic regions; and (c) affected is equal to the total annual implement such measures through non- does not have significant adverse effects number of consultations projected in the discretionary terms and conditions. We on competition, employment, economic analysis. The number of small may also identify discretionary investment, productivity, innovation, or business estimated to be impacted from conservation recommendations the ability of U.S.-based enterprises to the proposed rule range from less than designed to minimize or avoid the compete with foreign-based enterprises. one percent of commercial/retail adverse effects of a proposed action on As discussed in the economic analysis, development firms to almost eight listed species or critical habitat, help the designation is anticipated to have a percent of water conservation and implement recovery plans, or to develop total estimated economic effect ranging supply firms. Because these estimates information that could contribute to the between $15.7 to $130.7 million over a are far less than the 20 percent recovery of the species. 10-year period. Assuming that these threshold that would be considered Based on our experience with costs are spread evenly over the period ‘‘substantial,’’ the analysis concludes consultations pursuant to section 7 of of analysis, annual effects to the that this designation will not affect a the Act for all listed species, virtually economy could range between $1.6 and substantial number of small entities as all projects—including those that, in $13 million. Additionally, these values a result of the designation of critical their initial proposed form, would result are very likely to be an overestimate of habitat for the San Bernardino kangaroo in jeopardy or adverse modification the potential economic effects of the rat. The draft Economic Analysis and determinations—can be implemented designation because the economic final Addendum contain the factual successfully with, at most, the adoption analysis evaluated potential impacts bases for this certification and contain a of reasonable and prudent alternatives. associated with the area proposed as complete analysis of the potential These measures, by definition, must be critical habitat and this area has been economic affects of this designation. economically feasible and within the significantly reduced in this final rule. VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19835 Proposed and final rules designating areas of occupied designated critical provisions of the Act. The rule uses critical habitat for listed species are habitat. standard property descriptions and issued under the authority of the b. This rule, will not produce a identifies the primary constituent Endangered Species Act of 1973, as Federal mandate of $100 million or elements within the designated units to amended (16 U.S.C. 1531 et seq.). greater in any year, that is, it is not a assist the public in understanding the Competition, employment, investment, ‘‘significant regulatory action’’ under habitat and conservation needs of the productivity, innovation, or the ability the Unfunded Mandates Reform Act. San Bernardino kangaroo rat. of U.S.-based enterprises to compete The designation of critical habitat Paperwork Reduction Act of 1995 (44 with foreign-based enterprises are not imposes no obligations on State or local U.S.C. 3501 et seq.) affected by this action and will not be governments. This rule does not contain any new affected by the final rule designating Takings critical habitat for this species. collections of information that require Therefore, we anticipate that this final In accordance with Executive Order approval by the Office of Management rule will not place significant additional 12630, (‘‘Government Actions and and Budget under the Paperwork burdens on any entity. Interference with Constitutionally Reduction Act (44 U.S.C. 3501 et seq.). Protected Private Property Rights’’), we This rule will not impose new record- Executive Order 13211 have analyzed the potential takings keeping or reporting requirements on On May 18, 2001, the President issued implications of designating 13,485 ha State or local governments, individuals, an Executive Order (E.O. 13211) which (33,295 ac) of lands in Riverside and businesses, or organizations. An agency applies to regulations that significantly San Bernardino counties, California as may not conduct or sponsor, and a affect energy supply, distribution, and critical habitat for the San Bernardino person is not required to respond to, a use. Executive Order 13211 requires kangaroo rat. The takings implications collection of information unless it agencies to prepare Statements of assessment concludes that this final displays a currently valid OMB Control Energy Effects when undertaking certain designation of critical habitat does not Number. actions. The primary land uses within pose significant takings implications for designated critical habitat include urban lands within or affected by the National Environmental Policy Act and agricultural development, water designation of critical habitat for the We have determined that we do not management and conservation facilities, San Bernardino kangaroo rat. need to prepare an Environmental and sand and gravel mining operations. Assessment and/or an Environmental Federalism Significant energy production, supply, Impact Statement as defined by the and distribution facilities are not In accordance with Executive Order National Environmental Policy Act of included within designated critical 13132, this rule does not have 1969 in connection with regulations habitat. Therefore, this action does not significant Federalism effects. A adopted pursuant to section 4(a) of the represent a significant action effecting Federalism assessment is not required. Endangered Species Act as amended We energy production, supply, and We will coordinate the designation of published a notice outlining our reasons distribution facilities; and no Statement critical habitat for the San Bernardino for this determination on October 25, of Energy Effects is required. kangaroo rat with the appropriate State 1983 (48 FR 49244). This final Additionally, the area designated as agencies. The designation of critical designation does not constitute a major critical habitat is predominately habitat in areas currently occupied by Federal action significantly affecting the considered to be occupied by the listed the San Bernardino kangaroo rat quality of the human environment. species, with only an estimated 2.5 imposes no additional restrictions to Government-to-Government percent of the designation not known to those currently in place and, therefore, Relationship With Tribes be currently occupied. Therefore, any has little significant incremental impact consultation required pursuant to on State and local governments and In accordance with the President’s section 7 of the Act by a Federal agency their activities. The designation may memorandum of April 29, 1994, undertaking an action in this area would have some benefit to these governments ‘‘Government-to-Government Relations likely be triggered by the presence of the in that the areas essential to the with Native American Tribal listed species and not solely by this conservation of the species are more Governments’’ (59 FR 22951), Executive designation of critical habitat. clearly defined, and the primary Order 13175, and 512 DM 2, we are constituent elements of the habitat coordinating with federally recognized Unfunded Mandates Reform Act (2 necessary to the survival and Tribes on a Government-to-Government et seq. U.S.C. 1501 ) conservation of the species are basis. Further, Secretarial Order 3206, In accordance with the Unfunded specifically identified. While making ‘‘American Indian Tribal Rights, Mandates Reform Act (2 U.S.C. 1501 et this definition and identification does Federal-Tribal Trust Responsibilities, seq.): not alter where and what federally and the Endangered Species Act’’ (1997) a. This rule, as designated, will not sponsored activities may occur, it may provides that critical habitat should not ‘‘significantly or uniquely’’ affect small assist these local governments in long- be designated in an area that may governments. A Small Government range planning (rather than waiting for impact Tribal trust resources unless it is Agency Plan is not required. Small case-by-case consultations under section determined to be essential to the governments will be affected only to the 7 of the Act to occur). conservation of a listed species. The extent that any programs having Federal Secretarial Order further states that in funds, permits, or other authorized Civil Justice Reform designating critical habitat, ‘‘the Service activities must ensure that their actions In accordance with Executive Order shall evaluate and document the extent will not adversely affect the critical 12988, the Office of the Solicitor has to which the conservation needs of a habitat. However, as discussed above, determined that the rule does not listed species can be achieved by these actions are currently subject to unduly burden the judicial system and limiting the designation to other lands’’. equivalent restrictions through the meets the requirements of sections 3(a) In our proposed critical habitat rule, listing protections of the species, and no and 3(b)(2) of the Order. We designate we indicated that approximately 465 ha further restrictions are anticipated in critical habitat in accordance with the (1,150 ac) of lands within the Soboba VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19836 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations Band of Luise˜no Indians Reservation in conservation of the San Bernardino Authors western Riverside County were essential kangaroo rat because it supports several The primary authors of this for the conservation of the San populations and provides continuity designation are Douglas Krofta and Bernardino kangaroo rat. In the between two adjacent areas of essential Mark A. Elvin , Carlsbad Fish and development of the final critical habitat habitat. Wildlife Office (see ADDRESSES section). designation for the San Bernardino Currently the Soboba Band of Luise˜No List of Subjects in 50 CFR Part 17 kangaroo rat, we re-evaluated these Indians does not have a resource Tribal lands to determine if they were management plan which provides Endangered and threatened species, essential to the conservation of the protection or conservation for the San Exports, Imports, Reporting and kangaroo rat and whether they should Bernardino kangaroo rat and its’ habitat. recordkeeping requirements, be designated as critical habitat. Based We are committed to maintaining a Transportation. on distribution information for the San positive working relationship with the Regulation Promulgation Bernardino kangaroo rat in the San Tribe and will continue our attempts to Jacinto Wash, the continuity of kangaroo work with them on developing a Accordingly, we amend part 17, rat habitat extending up the tributaries resource management plan for the subchapter B of chapter I, title 50 of the adjacent to occupied habitat, and slope, Reservation including conservation Code of Federal Regulations as set forth vegetation, and disturbance information; measures for the kangaroo rat. However, below: we have re-defined the area designated due to time constraints for completing as critical habitat on the Soboba Band of PART 17—[AMENDED] this final rule, the lack of an existing Luise˜no Indians Reservation. resource management plan covering the Additionally, we refined the 100 meter 1. The authority citation for part 17 San Bernardino kangaroo rat, we were grid line used in the proposal to the continues to read as follows: required to finalize the designation essential critical habitat line along the Authority: 16 U.S.C. 1361–1407; 16 U.S.C. edges of the two washes and the main based on our own analysis of the 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– portion of the river on Tribal land and relative importance of the lands within 625, 100 Stat. 3500; unless otherwise noted. the Soboba Band of Luise˜no Indians removed from the designation a non- 2. In § 17.11(h) revise the entry for essential disturbed area on the western Reservation for the conservation of the San Bernardino kangaroo rat. ‘‘Kangaroo rat, San Bernardino edge of Tribal lands on the north side Merriam’s’’ under ‘‘MAMMALS’’ to read of the river that is proposed for References Cited as follows: economic development. The result of this analysis and refinement was the A complete list of all references cited § 17.11 Endangered and threatened reduction of critical habitat on Tribal in this rulemaking is available upon wildlife. land to 290 ha (710 ac). The remaining request from the Carlsbad Fish and * * * * * area on Tribal lands is essential to the Wildlife Office (see ADDRESSES section). (h) * * * Species Vertebrate popu- Historic range lation where endan- Status When list- Critical Special Common name Scientific Name gered or threatened ed habitat rules MAMMALS ******* Kangaroo rat, San Dipodomys merriami U.S.A., CA ...... Entire ...... E 632E, 645 17.95(a) NA Bernardino parvus. Merriam’s.. ******* 3. Amend § 17.95(a) by adding critical knowledge of this species, the primary scale smaller than the home range of the habitat for the San Bernardino kangaroo constituent elements include: animal, or (B) form a series of core areas rat (Dipodomys merriami parvus) in the (i) Soil series consisting and linkages between them. same alphabetical order as this species predominantly of sand, loamy sand, (iv) Upland areas proximal to occurs in § 17.11 (h) to read as follows. sandy loam, or loam; floodplains with suitable habitat (e.g., (ii) Alluvial sage scrub and associated § 17.95 Critical habitat-fish and wildlife. floodplains that support the soils, vegetation, such as coastal sage scrub vegetation, or geomorphological, (a) Mammals. and chamise chaparral, with a hydrological and aeolian processes * * * * * moderately open canopy. essential to this species). These areas are San Bernardino Kangaroo Rat (iii) River, creek, stream, and wash essential due to their geographic (Dipodomys merriami parvus) channels; alluvial fans; floodplains; proximity to suitable habitat and the (1) Critical Habitat Units are depicted floodplain benches and terraces; and functions they serve during flooding for San Bernardino and Riverside historic braided channels that are events. These areas may include counties, California, on the maps below. subject to dynamic geomorphological marginal habitats such as agricultural (2) Within these areas, the primary and hydrological processes typical of lands that are disced annually, out-of- constituent elements for the San fluvial systems within the historical production vineyards, margins of Bernardino kangaroo rat are those range of the San Bernardino kangaroo orchards, areas of active or inactive habitat components that are essential for rat. These areas may include a mosaic industrial or resource extraction the primary biological needs of the of suitable and unsuitable soils and activities, and urban/wildland species. Based on our current vegetation that either (A) occur at a interfaces. VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19837 (3) Existing features and structures, constituent elements. Federal actions species and/or primary constituent such as buildings, roads, railroads, limited to those areas, therefore, would elements in adjacent critical habitat. airports, other paved areas, lawns, and not trigger a consultation under section (4) Critical Habitat Map Units-Index other urban landscaped areas, do not 7 of the Act unless they affect the Map Follows. contain one or more of the primary (5) Unit 1: Santa Ana River and Wash, 482552, 3776943; 482558, 3776715; 488140, 3773892; 488251, 3773835; San Bernardino County, California 482692, 3776286; 482708, 3776201; 488324, 3773775; 488394, 3773680; (i) From USGS 1:24,000 quadrangle 482717, 3775426; 482568, 3775426; 488467, 3773622; 488546, 3773578; maps Harrison Mountain (1980), 482435, 3775170; 482428, 3774953; 488649, 3773548; 488651, 3773549; Yucaipa (1988), Redlands (1980), and 482444, 3774750; 482574, 3774556; 490156, 3773511; 490219, 3773476; San Bernardino South (1980), 483247, 3774550; 483244, 3773978; 490121, 3773435; 490019, 3773387; California, lands in the Santa Ana Wash 484038, 3773981; 484038, 3773734; 489994, 3773356; 489896, 3773311; bounded by the following Universal 484746, 3773730; 484752, 3774140; 489778, 3773356; 489730, 3773403; Transverse Mercator (UTM) North 485628, 3774128; 485628, 3774419; 488597, 3773435; 488378, 3773286; American Datum 1927 (NAD27) 485787, 3774423; 485787, 3774391; 488384, 3773257; 488356, 3773124; coordinates (E, N): 482376, 3776863; 486009, 3774391; 486006, 3774492; 488499, 3772708; 488645, 3772622; 482520, 3777020; 482425, 3777267; 486073, 3774489; 486298, 3774362; 489184, 3772616; 489762, 3772965; 482403, 3777426; 482590, 3777477; 486270, 3774286; 486222, 3774267; 489816, 3773035; 490029, 3773124; 482714, 3777417; 482755, 3777375; 486149, 3774267; 486108, 3774238; 490134, 3773086; 490327, 3773191; 482793, 3777315; 482847, 3777277; 486079, 3774194; 486076, 3774149; 490324, 3773372; 490296, 3773432; 482942, 3777261; 482977, 3777201; 486197, 3774162; 486463, 3774356; 490264, 3773480; 490248, 3773495; 483050, 3777175; 483142, 3777191; 486717, 3774438; 486873, 3774496; 490334, 3773572; 490429, 3773562; 483238, 3777159; 483282, 3777128; 486994, 3774578; 487038, 3774715; 490585, 3773657; 490769, 3773784; 483285, 3777023; 483257, 3777023; 487044, 3774848; 487022, 3774953; 490804, 3773934; 490826, 3774080; 483250, 3776778; 483168, 3776763; 486994, 3774988; 487159, 3774981; 490832, 3774172; 490804, 3774229; 483088, 3776797; 483003, 3776807; 487194, 3774889; 487244, 3774788; 490762, 3774267; 490734, 3774330; 482965, 3776855; 482885, 3777007; 487191, 3774543; 487111, 3774435; 490937, 3774334; 490978, 3774105; 482841, 3777032; 482603, 3777036; 486879, 3774229; 486848, 3774127; 490940, 3774038; 490943, 3773915; VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 ER23AP02.001 19838 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 490921, 3773870; 490921, 3773657; 487260, 3771394; 487260, 3771428; 474691, 3769631; 474707, 3769679; 490873, 3773613; 490845, 3773508; 485895, 3771419; 485898, 3771359; 474630, 3769679; 474618, 3769641; 490842, 3773426; 490819, 3773381; 485965, 3771355; 485965, 3771241; 474376, 3769638; 474380, 3769755; 490769, 3773349; 490727, 3773267; 486556, 3771254; 486555, 3770949; 474107, 3769714; 474043, 3769720; 490642, 3773241; 490569, 3773184; 485673, 3770955; 485670, 3771346; 473703, 3769673; 473640, 3769673; 490505, 3773175; 490442, 3773086; 485568, 3771349; 485492, 3771305; 473468, 3769619; 473462, 3769514; 490346, 3773057; 490359, 3772927; 485362, 3771216; 485327, 3771254; 473351, 3769476; 473354, 3769390; 490340, 3772806; 490258, 3772683; 485241, 3771209; 485212, 3771219; 472983, 3769374; 472970, 3769438; 490267, 3772549; 490458, 3772568; 484946, 3771219; 484822, 3771289; 472960, 3769784; 473268, 3769777; 490464, 3772540; 490496, 3772530; 484705, 3771317; 484492, 3771314; 473313, 3769793; 473322, 3769825; 490540, 3772530; 490616, 3772521; 484432, 3771277; 484311, 3771273; 473395, 3769889; 473706, 3769885; 490629, 3772451; 490661, 3772416; 484149, 3771336; 484101, 3771336; 474348, 3769962; 474392, 3770019; 490613, 3772368; 490581, 3772333; 483952, 3771292; 483790, 3771289; 474938, 3770327; 475043, 3770498; 490575, 3772273; 490518, 3772273; 483663, 3771314; 483460, 3771384; 475132, 3770590; 475367, 3770765; 490458, 3772152; 490340, 3772156; 483428, 3771359; 482958, 3771352; 475497, 3770873; 475789, 3771032; 490302, 3772206; 490096, 3772210; 482958, 3771590; 483060, 3771565; 490026, 3772159; 489896, 3772108; 483079, 3771676; 482736, 3771752; 475980, 3771136; 476123, 3771187; 489813, 3772063; 489692, 3772006; 482723, 3771717; 482555, 3771806; 476147, 3771188; 476151, 3771273; 489686, 3771879; 489564, 3771905; 482434, 3771863; 482384, 3771863; 476132, 3771397; 476151, 3772200; 489632, 3771749; 489686, 3771495; 482374, 3771914; 482234, 3771921; 476373, 3772200; 476373, 3771873; 489819, 3771419; 489857, 3771340; 482207, 3771948; 482206, 3772010; 476608, 3771752; 476621, 3771686; 490219, 3771117; 490331, 3771079; 482142, 3772010; 482050, 3772111; 476615, 3771622; 476631, 3771502; 490442, 3770990; 490648, 3770905; 481555, 3772114; 481549, 3772016; 476866, 3771508; 476869, 3771692; 490661, 3770847; 490908, 3770813; 481399, 3772010; 481263, 3771981; 477113, 3771692; 477062, 3771508; 491010, 3770670; 491029, 3770546; 481104, 3771908; 480841, 3771816; 477602, 3771505; 477609, 3771667; 491112, 3770517; 491162, 3770578; 480834, 3772000; 480780, 3771952; 477742, 3771759; 477777, 3771797; 491334, 3770581; 491341, 3770971; 480720, 3771930; 480710, 3771886; 478307, 3772086; 478291, 3772156; 494610, 3770971; 494613, 3770968; 480609, 3771911; 480517, 3772168; 478320, 3772203; 477942, 3772197; 494972, 3770971; 494972, 3770352; 480250, 3772165; 479914, 3772133; 477732, 3772137; 477310, 3771968; 494814, 3770279; 494690, 3770346; 479637, 3772089; 479282, 3772025; 477224, 3771902; 476910, 3771787; 494509, 3770320; 494404, 3770295; 479231, 3771987; 479221, 3771808; 476786, 3771768; 476697, 3771787; 494261, 3770336; 494137, 3770295; 479056, 3771752; 478859, 3771749; 476561, 3772054; 476520, 3772130; 494048, 3770279; 493950, 3770289; 478793, 3771708; 478602, 3771616; 476475, 3772162; 476415, 3772197; 493886, 3770266; 493712, 3770244; 478367, 3771619; 478285, 3771568; 476427, 3772210; 476805, 3772219; 493591, 3770178; 493458, 3770152; 477843, 3771295; 477777, 3771241; 476805, 3772140; 476831, 3772105; 493375, 3770117; 493302, 3770162; 477688, 3771216; 477605, 3771187; 476958, 3772079; 476983, 3772019; 493172, 3770162; 493128, 3770181; 477389, 3771124; 477250, 3771070; 478345, 3772489; 478421, 3772356; 493036, 3770105; 492909, 3770120; 477250, 3771016; 477189, 3771016; 478466, 3772375; 478399, 3772508; 492883, 3770197; 492813, 3770197; 477094, 3770968; 476993, 3770914; 479386, 3772864; 479386, 3772865; 492709, 3770155; 492134, 3770149; 476869, 3770886; 476735, 3770847; 479860, 3773022; 479841, 3773105; 492134, 3770091; 490908, 3770079; 476583, 3770933; 476488, 3770955; 479901, 3773184; 479872, 3773264; 490905, 3769879; 490851, 3769847; 476459, 3770892; 476354, 3770876; 479866, 3773391; 480034, 3773384; 490762, 3769835; 490750, 3769676; 476192, 3770714; 476103, 3770607; 480028, 3773784; 480809, 3773743; 490334, 3769679; 490334, 3769768; 476097, 3770613; 475954, 3770609; 480809, 3773391; 481009, 3773572; 490242, 3769812; 489473, 3769825; 475856, 3770625; 475802, 3770584; 481628, 3774302; 481626, 3774304; 489476, 3769895; 489381, 3769917; 475732, 3770539; 475618, 3770498; 481726, 3774429; 481707, 3774543; 489384, 3770105; 489305, 3770105; 475551, 3770466; 475345, 3770441; 481803, 3774556; 482047, 3774997; 489308, 3770308; 489130, 3770482; 475288, 3770406; 475183, 3770298; 482076, 3775099; 482079, 3775324; 488901, 3770496; 488892, 3771333; 475094, 3770206; 475069, 3770130; 488086, 3771340; 488079, 3770917; 474992, 3770108; 474983, 3770054; 482168, 3775331; 482228, 3775531; 488010, 3770917; 488006, 3771006; 474954, 3770031; 474910, 3769895; 482438, 3776058; 482447, 3776499; 487810, 3771013; 487810, 3771359; 474910, 3769714; 474837, 3769676; 482422, 3776705; returning to 482376, 487705, 3771384; 487689, 3771314; 474789, 3769714; 474770, 3769695; 3776863. 487268, 3771322; 487289, 3771375; 474773, 3769673; 474726, 3769628; (ii) Map Unit 1 follows. VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19839 (6) Unit 2: Lytle and Cajon Creeks, San 3781582; 466523, 3781300; 466555, 3775140; 468244, 3775290; 468111, Bernardino County, California 3781373; 467520, 3781351; 467581, 3775410; 468086, 3775483; 467927, 3781265; 466800, 3780408; 466500, 3775480; 467822, 3775620; 467822, (i) From USGS 1:24,000 quadrangle 3780067; 466581, 3779690; 466679, 3775759; 467511, 3776109; 467409, maps San Bernardino South (1980), San 3779392; 466733, 3779382; 466790, 3776210; 467298, 3776293; 467279, Bernardino North (1988), Devore (1988), 3779293; 466882, 3779236; 466882, 3776468; 467219, 3776566; 467139, and Cajon (1988), California. Subunit 3779125; 466917, 3779115; 466914, 3776652; 467130, 3776922; 467060, 2a: Land bounded by the following 3779058; 466978, 3779039; 466987, 3777055; 467076, 3777088; 467720, UTM NAD27 coordinates (E,N): 459113, 3778992; 467139, 3778992; 467149, 3777090; 466571, 3777823; 466444, 3789417; 459304, 3789431; 459431, 3778738; 467387, 3778725; 467597, 3777664; 466492, 3777566; 466324, 3789507; 459586, 3789387; 459850, 3778496; 467752, 3778493; 467759, 3777539; 466333, 3777480; 466165, 3789253; 459989, 3788993; 460389, 3778339; 468060, 3778026; 468174, 3777626; 466019, 3777741; 465958, 3788590; 460586, 3788491; 460786, 3777982; 468181, 3777512; 468387, 3777861; 465860, 3777918; 465774, 3788294; 460888, 3788218; 461088, 3776995; 468476, 3776804; 469061, 3777982; 465730, 3778071; 465777, 3788082; 461196, 3787990; 461826, 3775917; 469184, 3775791; 469235, 3778103; 465920, 3777985; 465955, 3787406; 461831, 3787409; 461999, 3775769; 469775, 3775232; 469756, 3777979; 465971, 3777963; 466012, 3787259; 462221, 3787075; 462412, 3775201; 469660, 3775245; 469705, 3777938; 466035, 3777950; 466038, 3786923; 462533, 3786856; 462701, 3775074; 469752, 3775026; 469752, 3777985; 466006, 3778058; 465755, 3786742; 463028, 3786459; 463101, 3774632; 469781, 3774505; 469787, 3778449; 465727, 3778442; 465688, 3786027; 463079, 3785989; 463291, 3774296; 469822, 3774175; 469857, 3778465; 465669, 3778519; 465685, 3785821; 463555, 3785580; 463799, 3774172; 469857, 3774035; 469787, 3778550; 465787, 3778512; 465930, 3785084; 463907, 3784954; 464007, 3774020; 469711, 3773972; 469619, 3778449; 466041, 3778382; 466139, 3784892; 464444, 3784653; 464577, 3773883; 469492, 3773835; 469371, 3778315; 466254, 3778246; 466311, 3784557; 464717, 3784399; 464780, 3773845; 469206, 3773858; 469051, 3778223; 466349, 3778312; 466416, 3784281; 464898, 3783910; 464974, 3773861; 468676, 3773864; 468721, 3778239; 466447, 3778220; 466374, 3783770; 465104, 3783608; 465231, 3773959; 468778, 3774035; 468876, 3778315; 466295, 3778407; 466190, 3783510; 465565, 3783252; 465473, 3774175; 468924, 3774286; 468806, 3778487; 465888, 3778630; 465644, 3782871; 465504, 3782792; 465806, 3774512; 468736, 3774620; 468711, 3778734; 465406, 3778830; 465269, 3782557; 465850, 3782579; 466040, 3774712; 468609, 3774909; 468524, 3778858; 465158, 3778852; 464914, 3782336; 466174, 3782446; 465946, 3775067; 468524, 3775107; 468432, 3778785; 464831, 3778938; 464723, VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 ER23AP02.002 19840 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 3778950; 464733, 3779049; 464542, 3783884; 459831, 3783751; 459891, 3785361; 462691, 3785459; 462602, 3779074; 464526, 3778944; 464336, 3783707; 459958, 3783592; 459932, 3785446; 462412, 3785259; 462228, 3779004; 464164, 3779077; 463841, 3783529; 459945, 3783440; 460012, 3785504; 462085, 3785592; 461939, 3779195; 463717, 3779033; 463391, 3783405; 460072, 3783357; 460174, 3785993; 461186, 3786878; 461063, 3779251; 463390, 3779249; 461605, 3783449; 460358, 3783424; 460526, 3787052; 460069, 3787796; 459742, 3780611; 461205, 3780906; 460802, 3783405; 460685, 3783389; 460704, 3788031; 459446, 3788285; 459278, 3781211; 460285, 3781589; 460291, 3783313; 461224, 3783532; 461437, 3788456; 459183, 3788777; 459124, 3779531; 461520, 3779519; 461513, 3783640; 461539, 3783824; 461437, 3788860; 458713, 3789091; 458329, 3778728; 458277, 3778734; 458265, 3784119; 461342, 3784119; 461342, 3789295; 457795, 3789745; 457700, 3777938; 457072, 3777928; 457078, 3784335; 461256, 3784408; 461126, 3789815; 457484, 3789895; 457268, 3778754; 456268, 3778757; 456268, 3784415; 461123, 3784453; 461158, 3789996; 457059, 3790177; 456986, 3779023; 456916, 3779662; 457415, 3784449; 461183, 3784503; 460894, 3790282; 456900, 3790431; 456837, 3780160; 457805, 3780547; 458294, 3784649; 460818, 3784710; 460707, 3790555; 456786, 3790634; 456748, 3780982; 458196, 3781046; 458459, 3784738; 460561, 3784872; 460459, 3790828; 456719, 3791025; 456719, 3781446; 458537, 3781640; 458554, 3784903; 460437, 3784983; 460380, 3791139; 456767, 3791254; 456849, 3781636; 458672, 3781776; 458789, 3784999; 460297, 3785059; 460231, 3791320; 456979, 3791307; 457103, 3781894; 458872, 3781913; 458929, 3785065; 460237, 3785164; 460370, 3791234; 457103, 3791079; 457145, 3781967; 459154, 3782059; 459192, 3785164; 460370, 3785218; 460408, 3790911; 457233, 3790736; 457389, 3782141; 459240, 3782205; 459240, 3785224; 460497, 3785157; 460599, 3790561; 457576, 3790368; 457878, 3782236; 459281, 3782316; 459361, 3785091; 460739, 3785018; 460904, 3790180; 458180, 3790069; 458456, 3782319; 459491, 3782383; 459631, 3784938; 460915, 3784876; 461053, 3790037; 458548, 3789955; 458846, 3782671; 459033, 3784051; 458605, 3784796; 461158, 3784792; 461256, 3789790; returning to 459113, 3789417. (ii) Subunit 2b: Land bounded by the 3784586; 458377, 3784681; 458300, 3784710; 461377, 3784691; 461482, following UTM NAD27 coordinates (E, 3784792; 458246, 3784830; 458132, 3784688; 461580, 3784732; 461707, N): 465795, 3784148; 464554, 3785327; 3784929; 458094, 3785030; 457964, 3784691; 461783, 3784630; 461736, 463276, 3786555; 463400, 3786918; 3785189; 457884, 3785411; 457898, 3784516; 462031, 3784421; 462117, 463325, 3786939; 463416, 3787252; 3785557; 457875, 3785586; 457786, 3784338; 462079, 3784278; 462040, 463416, 3787310; 463445, 3787388; 3785678; 457754, 3785739; 457710, 3784021; 462085, 3783922; 462063, 463849, 3787384; 463804, 3787314; 3785761; 457621, 3785780; 457532, 3783824; 462190, 3783691; 462244, 463869, 3787268; 463948, 3787260; 3785821; 457475, 3785894; 457519, 3783624; 462231, 3783560; 462225, 464187, 3787194; 464389, 3786988; 3786046; 457459, 3786085; 457440, 3783491; 462120, 3783478; 462021, 464385, 3786901; 464389, 3786815; 3786227; 457392, 3786227; 457319, 3783418; 462025, 3783386; 462050, 464286, 3786695; 464298, 3786638; 3786313; 457297, 3786367; 457173, 3783332; 462059, 3783256; 462088, 464381, 3786605; 464488, 3786695; 3786424; 457110, 3786510; 456999, 3783227; 462171, 3783249; 462253, 464541, 3786811; 464438, 3786856; 3786574; 456995, 3786669; 456980, 3783195; 462259, 3783157; 462345, 464541, 3786984; 464673, 3786984; 3786786; 456891, 3786888; 456865, 3783125; 462406, 3783106; 462488, 464682, 3786889; 465081, 3786885; 3787028; 456786, 3787082; 456675, 3783078; 462520, 3783030; 462504, 465090, 3786786; 465288, 3786691; 3787170; 456633, 3787256; 456525, 3782973; 462567, 3782948; 462640, 465490, 3786592; 465461, 3786559; 3787339; 456478, 3787399; 456392, 3782998; 462688, 3782967; 462720, 465283, 3786242; 465292, 3786102; 3787370; 456208, 3787466; 455938, 3782913; 462752, 3782805; 462834, 465263, 3785962; 465366, 3785891; 3787488; 455865, 3787456; 455738, 3782798; 462891, 3782751; 462971, 465292, 3785702; 465527, 3785558; 3787612; 455671, 3787634; 455525, 3782633; 463136, 3782550; 463190, 465572, 3785652; 465704, 3785586; 3787713; 455640, 3787815; 455754, 3782405; 463231, 3782271; 463361, 465626, 3785166; 465799, 3784939; 3787847; 456059, 3787764; 456157, 3782179; 463399, 3782065; 463498, 465997, 3784778; 466128, 3784700; 3787704; 456332, 3787653; 456472, 3781973; 463698, 3781884; 463749, 465906, 3784280; 465881, 3784300; 3787567; 456570, 3787590; 456754, 3781897; 463834, 3781830; 463888, returning to 465795, 3784148. 3787586; 456935, 3787523; 457014, 3781668; 464022, 3781560; 464037, (iii) Subunit 2c: Land bounded by the 3787466; 457065, 3787351; 457129, 3781481; 464028, 3781392; 464123, following UTM NAD27 coordinates (E, 3787158; 457167, 3787018; 457164, 3781303; 464161, 3781306; 464184, N): 469615, 3782014; 469536, 3782017; 3786910; 457136, 3786794; 457237, 3781338; 464145, 3781392; 464193, 469485, 3782090; 469415, 3782141; 3786701; 457192, 3786647; 457205, 3781401; 464241, 3781440; 464307, 469345, 3782214; 469298, 3782239; 3786564; 457411, 3786459; 457576, 3781379; 464323, 3781341; 464253, 469263, 3782293; 469193, 3782309; 3786269; 457586, 3786132; 457640, 3781278; 464339, 3781160; 464393, 469117, 3782335; 469025, 3782325; 3786034; 457767, 3785929; 457926, 3781208; 464457, 3781157; 464520, 468942, 3782370; 468844, 3782401; 3785843; 458059, 3785678; 458091, 3781274; 464603, 3781395; 464574, 468812, 3782417; 468777, 3782376; 3785596; 458043, 3785485; 458097, 3781763; 465028, 3781932; 464907, 468625, 3782490; 468564, 3782643; 3785377; 458100, 3785243; 458208, 3782252; 464269, 3782910; 464190, 468548, 3783024; 468558, 3783141; 3785065; 458294, 3784980; 458361, 3783084; 464193, 3783145; 464101, 468609, 3783195; 468609, 3783281; 3784916; 458450, 3784888; 458523, 3783376; 464111, 3783440; 464171, 468723, 3783446; 468859, 3783671; 3784846; 458596, 3784783; 458681, 3783532; 464225, 3783529; 464241, 468910, 3783700; 468913, 3783789; 3784745; 458705, 3784707; 458707, 3783500; 464326, 3783487; 464266, 468936, 3783881; 469012, 3783894; 3784710; 458888, 3784659; 458999, 3783649; 464238, 3783776; 464247, 469021, 3784090; 469107, 3784087; 3784589; 459027, 3784500; 459065, 3783868; 464215, 3783967; 464174, 469209, 3784198; 469231, 3784284; 3784478; 459126, 3784510; 459199, 3784068; 464066, 3784218; 464003, 469599, 3784284; 469625, 3784173; 3784494; 459256, 3784424; 459265, 3784364; 463863, 3784526; 463803, 469901, 3783989; 469980, 3783881; 3784342; 459342, 3784265; 459367, 3784675; 463717, 3784773; 463599, 469898, 3783811; 469968, 3783735; 3784192; 459440, 3784148; 459548, 3784846; 463305, 3784949; 463329, 470009, 3783773; 470187, 3783732; 3784021; 459653, 3783967; 459742, 3785011; 463006, 3785227; 462847, 470209, 3783662; 470295, 3783646; VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19841 470295, 3783547; 470402, 3783528; 470720, 3782843; 470742, 3782763; 470056, 3782611; 469996, 3782614; 470498, 3783484; 470580, 3783436; 470701, 3782773; 470688, 3782709; 469907, 3782703; 469882, 3782744; 470669, 3783427; 470761, 3783354; 470730, 3782643; 470730, 3782624; 469872, 3782824; 469828, 3782833; 470783, 3783325; 470933, 3783252; 470695, 3782535; 470822, 3782439; 469694, 3782808; 469618, 3782776; 470980, 3783236; 471003, 3783192; 470749, 3782312; 470710, 3782325; 469653, 3782646; 469688, 3782420; 471164, 3783093; 471244, 3783068; 470669, 3782363; 470564, 3782414; 469685, 3782214; 469704, 3782144; 471330, 3783036; 471333, 3783001; 470469, 3782411; 470406, 3782439; returning to 469615, 3782014. 471218, 3782941; 471111, 3782966; 470352, 3782471; 470314, 3782500; 470907, 3782951; 470841, 3782925; 470263, 3782538; 470250, 3782652; (iv) Map Unit 2 follows. 470803, 3782931; 470749, 3782855; 470196, 3782671; 470123, 3782649; (7) Unit 3: San Jacinto River and 497468, 3744524; 498024, 3744420; 503285, 3742095; 503358, 3742061; Bautista Creek, Riverside County, 498386, 3744293; 498541, 3744264; 503443, 3742073; 503548, 3741994; California. 499291, 3743826; 499484, 3743673; 503650, 3741956; 503758, 3741788; 499767, 3743564; 499780, 3744556; 503875, 3741689; 503964, 3741651; (i) From USGS quadrangle maps 499840, 3744728; 499846, 3744832; 503967, 3741594; 504028, 3741553; Blackburn Canyon (1988), Hemet (1979), 499980, 3744820; 500081, 3744769; 504155, 3741530; 504171, 3741489; Lake Fulmor (1988), San Jacinto (1979), 500189, 3744693; 500278, 3744610; 504218, 3741467; 504275, 3741407; and Lakeview (1979), California, land 500389, 3744572; 500564, 3744359; 504282, 3741302; 504666, 3741140; bounded by the following UTM NAD27 500722, 3744178; 500872, 3743931; 504742, 3741076; 504872, 3740959; coordinates (E, N): 493757, 3745718; 500811, 3743943; 500745, 3743924; 505126, 3740886; 505282, 3740778; 494287, 3745394; 494490, 3745290; 500716, 3743762; 500751, 3743600; 505475, 3740676; 505522, 3740595; 494890, 3745061; 495084, 3744988; 500840, 3743489; 500789, 3743419; 505529, 3740594; 505612, 3740521; 495258, 3744978; 495389, 3744997; 500735, 3743213; 501688, 3742689; 505701, 3740400; 505853, 3740261; 495671, 3745096; 495938, 3745159; 502148, 3742442; 502262, 3742356; 505888, 3740191; 505920, 3740064; 496074, 3745175; 496284, 3745159; 502402, 3742293; 502415, 3742359; 505710, 3739854; 505787, 3739594; 496494, 3745077; 496601, 3744994; 502551, 3742273; 502650, 3742257; 505891, 3739286; 505971, 3739076; 496605, 3744994; 496884, 3744791; 502824, 3742232; 502932, 3742194; 506107, 3739054; 506145, 3738987; 497078, 3744689; 497287, 3744588; 503088, 3742086; 503164, 3742197; 506250, 3738876; 506247, 3738686; VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 ER23AP02.003 19842 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 506285, 3738495; 506282, 3738310; 511600, 3735279; 511419, 3735343; 513546, 3733555; 513521, 3733653; 506514, 3737927; 506580, 3737886; 511359, 3735343; 511308, 3735320; 513473, 3733663; 513403, 3733638; 506695, 3737835; 506822, 3737844; 511311, 3735282; 511343, 3735216; 513213, 3733634; 513203, 3733787; 506911, 3737879; 506799, 3737711; 511435, 3735139; 511546, 3735076; 512762, 3733790; 512759, 3733647; 506841, 3737495; 508047, 3736292; 511638, 3735009; 511648, 3735009; 512407, 3733825; 512394, 3733869; 508323, 3736200; 508514, 3736285; 511800, 3734866; 511899, 3734806; 512143, 3734063; 512041, 3734114; 508812, 3736886; 508812, 3736889; 511933, 3734739; 512051, 3734692; 511689, 3734133; 511686, 3734238; 508911, 3737082; 509012, 3737187; 512184, 3734581; 512387, 3734390; 511591, 3734276; 511410, 3734414; 509114, 3737387; 509212, 3737489; 512578, 3734346; 512683, 3734285; 511219, 3734419; 511219, 3734511; 509311, 3737587; 509412, 3737692; 513191, 3734155; 513292, 3734082; 511111, 3734609; 511013, 3734708; 509635, 3737848; 509714, 3737889; 513448, 3734028; 513581, 3734028; 510940, 3734815; 510822, 3735015; 509835, 3737997; 509857, 3737968; 513664, 3733980; 513800, 3733888; 510781, 3735015; 510743, 3735250; 509927, 3737956; 510241, 3738168; 513905, 3733860; 514054, 3733844; 510717, 3735409; 510679, 3735489; 510194, 3738248; 510311, 3738292; 514188, 3733765; 514283, 3733688; 510559, 3735619; 509971, 3735641; 510416, 3738387; 510517, 3738686; 514362, 3733663; 514381, 3733580; 509971, 3735523; 509419, 3735520; 510613, 3738886; 510727, 3738991; 514483, 3733479; 514740, 3733476; 509333, 3735571; 509324, 3735641; 510724, 3739178; 510740, 3739264; 514800, 3733447; 515013, 3733431; 509035, 3735758; 508825, 3735758; 510886, 3739194; 510990, 3738991; 515067, 3733469; 515156, 3733460; 508825, 3735708; 508657, 3735708; 511175, 3738956; 511181, 3738873; 515181, 3733358; 515489, 3733288; 508650, 3735257; 508692, 3735114; 511155, 3738784; 511048, 3738768; 515769, 3733272; 515855, 3733263; 508768, 3734993; 508835, 3734758; 510917, 3738819; 510813, 3738829; 516004, 3733155; 516086, 3733088; 508885, 3734657; 509041, 3734438; 510749, 3738781; 510746, 3738552; 516290, 3732980; 516566, 3732964; 509146, 3734393; 509165, 3734311; 510695, 3738432; 510690, 3738316; 516680, 3732866; 517020, 3732860; 509238, 3734250; 509279, 3734241; 510295, 3737921; 510155, 3737632; 517087, 3732774; 517194, 3732685; 509362, 3734155; 509371, 3734120; 510098, 3737613; 510041, 3737603; 517277, 3732583; 517385, 3732491; 509714, 3733777; 509716, 3733777; 509978, 3737622; 509800, 3737629; 517458, 3732396; 517636, 3732228; 509800, 3733561; 509790, 3733003; 509755, 3737600; 509692, 3737540; 517868, 3732193; 517931, 3732266; 509841, 3732783; 509965, 3732568; 509673, 3737428; 509508, 3737394; 518134, 3732174; 518058, 3732069; 510248, 3732228; 510429, 3731977; 509479, 3737336; 509406, 3737301; 517979, 3732037; 517956, 3731993; 511070, 3731974; 511076, 3731901; 509339, 3737238; 509260, 3737152; 517899, 3731974; 517880, 3731879; 511187, 3731647; 511279, 3731494; 509266, 3737092; 509206, 3737003; 517909, 3731796; 517972, 3731733; 511486, 3731291; 511689, 3731183; 509193, 3736917; 509171, 3736870; 518160, 3731720; 518220, 3731745; 512076, 3731145; 512391, 3730986; 509104, 3736822; 509012, 3736806; 518347, 3731748; 518439, 3731704; 512603, 3730942; 512683, 3730885; 509009, 3736765; 508990, 3736717; 518557, 3731602; 518576, 3731494; 512835, 3730840; 512867, 3730767; 508895, 3736644; 508838, 3736549; 518664, 3731440; 518703, 3731364; 512845, 3730663; 512791, 3730599; 508793, 3736517; 508708, 3736314; 518833, 3731348; 518839, 3731307; 512718, 3730574; 512572, 3730551; 509292, 3736095; 509581, 3735990; 518776, 3731278; 518718, 3731218; 512419, 3730593; 512286, 3730643; 510067, 3735958; 510089, 3736000; 518718, 3731174; 518798, 3731110; 512051, 3730640; 511984, 3730612; 510038, 3736057; 510238, 3736000; 518899, 3731066; 519007, 3731047; 511949, 3730510; 512029, 3730472; 510333, 3735987; 510419, 3736063; 519087, 3730993; 519150, 3730961; 512035, 3730409; 511959, 3730345; 510492, 3736028; 510492, 3735971; 519188, 3730894; 519280, 3730790; 512010, 3730297; 512168, 3730224; 510584, 3735952; 510733, 3735863; 519334, 3730751; 519468, 3730688; 512267, 3730142; 512410, 3730091; 510743, 3735803; 511019, 3735758; 519547, 3730669; 519719, 3730675; 512591, 3729993; 512788, 3729885; 511140, 3735755; 511381, 3735479; 519763, 3730624; 519782, 3730494; 512978, 3729767; 513280, 3729497; 511629, 3735457; 511803, 3735485; 519820, 3730421; 519900, 3730377; 513714, 3729078; 513781, 3729056; 511898, 3735523; 512064, 3735543; 519988, 3730393; 520062, 3730342; 513858, 3728977; 513962, 3728935; 512238, 3735549; 512448, 3735520; 520087, 3729986; 520112, 3729955; 513972, 3728802; 514159, 3728535; 512616, 3735520; 512702, 3735504; 520071, 3729920; 520004, 3729939; 514175, 3728297; 514331, 3727986; 512832, 3735517; 512908, 3735584; 519814, 3730120; 519652, 3730135; 514296, 3727897; 514305, 3727764; 513013, 3735638; 513305, 3735685; 519614, 3730209; 519515, 3730316; 514350, 3727627; 514350, 3727576; 513410, 3735784; 513508, 3735892; 519417, 3730415; 519052, 3730434; 514391, 3727507; 514632, 3727494; 513613, 3735990; 513673, 3736133; 519014, 3730513; 518915, 3730612; 514683, 3727392; 514696, 3727297; 513692, 3736276; 513711, 3736384; 518817, 3730710; 518718, 3730758; 514845, 3727275; 514870, 3727100; 513813, 3736489; 513851, 3736568; 518391, 3730853; 518315, 3730910; 514845, 3727084; 514797, 3727145; 514004, 3736574; 514137, 3736520; 518249, 3730999; 518017, 3731228; 514740, 3727145; 514740, 3727034; 514188, 3736393; 514175, 3736305; 517988, 3731345; 517810, 3731520; 514769, 3726945; 514835, 3726907; 514118, 3736193; 514140, 3736101; 517585, 3732015; 517469, 3732053; 514937, 3726780; 514950, 3726662; 514115, 3736016; 513794, 3736016; 517287, 3732275; 517198, 3732333; 515012, 3726596; 515029, 3726497; 513689, 3735917; 513667, 3735828; 517121, 3732412; 516766, 3732447; 515083, 3726395; 515210, 3726335; 513616, 3735733; 513569, 3735673; 516706, 3732517; 516607, 3732517; 515251, 3726300; 515331, 3726329; 513505, 3735530; 513454, 3735485; 516528, 3732495; 516410, 3732523; 515429, 3726291; 515477, 3726205; 513369, 3735444; 513235, 3735406; 516315, 3732571; 516261, 3732641; 515391, 3726151; 515394, 3726056; 513162, 3735352; 513108, 3735273; 516172, 3732714; 516016, 3732812; 515423, 3725979; 515429, 3725903; 512978, 3735212; 512851, 3735231; 515623, 3732812; 515432, 3732831; 515502, 3725770; 515563, 3725713; 512626, 3735216; 512467, 3735231; 515216, 3732923; 515007, 3733012; 515617, 3725694; 515766, 3725681; 512410, 3735311; 512197, 3735327; 514610, 3733114; 514315, 3733209; 515782, 3725656; 515829, 3725643; 512095, 3735289; 511975, 3735219; 514312, 3733206; 514312, 3733209; 515845, 3725598; 515744, 3725598; 511822, 3735235; 511733, 3735266; 513911, 3733314; 513553, 3733387; 515661, 3725608; 515661, 3725567; VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19843 515696, 3725490; 515750, 3725475; 513213, 3728856; 513156, 3728907; 503650, 3741092; 503653, 3741445; 515782, 3725433; 515763, 3725376; 513016, 3728992; 512940, 3729056; 503482, 3741613; 503320, 3741708; 515766, 3725313; 515804, 3725233; 512908, 3729119; 512793, 3729145; 502783, 3741978; 502538, 3741916; 515867, 3725233; 515855, 3725176; 512749, 3729186; 512638, 3729234; 502535, 3741918; 502056, 3741911; 515794, 3725119; 515817, 3725055; 512603, 3729313; 512502, 3729323; 502037, 3742391; 501951, 3742432; 515896, 3724960; 515988, 3724887; 512378, 3729485; 512238, 3729558; 501713, 3742429; 501700, 3742569; 516058, 3724906; 516096, 3724884; 512207, 3729605; 512172, 3729643; 500545, 3743165; 500503, 3743213; 516147, 3724836; 516204, 3724681; 512184, 3729974; 511597, 3730437; 499532, 3743550; 499529, 3743553; 516315, 3724617; 516388, 3724589; 511051, 3731015; 510727, 3731390; 499408, 3743616; 499214, 3743715; 516487, 3724481; 516566, 3724440; 510724, 3731390; 510724, 3731393; 498910, 3743908; 498802, 3743975; 516566, 3724386; 516490, 3724316; 510254, 3732104; 509952, 3732472; 498643, 3744042; 497684, 3744045; 516464, 3724252; 516407, 3724233; 509813, 3732685; 509755, 3732869; 497678, 3744334; 497341, 3744413; 516226, 3724319; 516147, 3724300; 509730, 3733041; 509733, 3733476; 516039, 3724351; 516042, 3724389; 509720, 3733618; 509689, 3733676; 496992, 3744578; 496644, 3744813; 515829, 3724617; 515626, 3724805; 509505, 3733822; 509247, 3733824; 496643, 3744816; 496538, 3744880; 515528, 3724894; 515540, 3724979; 509247, 3734057; 509095, 3734190; 496214, 3745013; 496084, 3745032; 515566, 3725014; 515563, 3725176; 508854, 3734200; 508825, 3734463; 495890, 3745007; 495589, 3744909; 515585, 3725259; 515569, 3725376; 508743, 3734584; 508670, 3734733; 495414, 3744851; 495331, 3744820; 515512, 3725522; 515423, 3725563; 508590, 3734939; 508498, 3735177; 495093, 3744836; 494935, 3744893; 515445, 3725659; 515359, 3725770; 508419, 3735352; 508333, 3735450; 494909, 3744909; 494792, 3744950; 515318, 3725843; 515255, 3725935; 508374, 3735530; 508431, 3735584; 494608, 3745109; 494303, 3745315; 515251, 3726068; 515242, 3726129; 508422, 3735733; 508288, 3735855; 494008, 3745509; 493661, 3745699; 515191, 3726198; 515102, 3726243; 508000, 3735892; 507828, 3735958; 493661, 3745702; 493509, 3745801; 515020, 3726303; 514956, 3726383; 507180, 3735955; 506825, 3736327; 493309, 3745912; 493014, 3746109; 514880, 3726510; 514832, 3726606; 506952, 3736460; 506911, 3736495; 492712, 3746309; 492509, 3746413; 514835, 3726738; 514651, 3726853; 506876, 3736470; 506850, 3736492; 492236, 3746452; 491322, 3746452; 514616, 3727011; 514559, 3727173; 506822, 3736470; 506752, 3736543; 491318, 3747677; 491449, 3747680; 514486, 3727338; 514397, 3727338; 506682, 3736470; 506358, 3736768; 491483, 3747817; 491642, 3747826; 514286, 3727361; 514220, 3727453; 506288, 3736863; 506250, 3736940; 491760, 3747849; 491795, 3747880; 514210, 3727522; 514169, 3727576; 506225, 3737311; 505895, 3737632; 492014, 3747874; 492090, 3747690; 514134, 3727576; 514102, 3727519; 505714, 3737629; 505714, 3738003; 492280, 3747452; 492499, 3747274; 514051, 3727526; 514010, 3727608; 505806, 3738010; 505893, 3738055; 493198, 3746585; 493354, 3746560; 513943, 3727621; 513921, 3727691; 505850, 3738416; 505787, 3738559; 493550, 3746433; 493661, 3746274; 513940, 3727894; 513915, 3728015; 505320, 3739638; 505212, 3739835; 513848, 3728129; 513785, 3728278; 505079, 3740063; 504901, 3740276; 493646, 3746163; 493779, 3745959; 513686, 3728342; 513626, 3728421; 504688, 3740486; 504501, 3740664; 493757, 3745899; returning to 493757, 513610, 3728507; 513416, 3728735; 504498, 3740663; 504498, 3740667; 3745718. 513321, 3728770; 513302, 3728815; 504097, 3741019; 503964, 3740889; (ii) Map Unit 3 follows. VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 19844 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations (8) Unit 4: Etiwanda Alluvial Fan and 455189, 3780502; 455116, 3780140; 450017, 3777819; 449804, 3777987; Wash, San Bernardino County, 455087, 3780101; 455081, 3779987; 449244, 3778007; 449242, 3778120; California 455052, 3779813; 455024, 3779419; 449194, 3778305; 449089, 3778466; (i) From USGS 1:24,000 quadrangle 455008, 3778819; 454931, 3778809; 448581, 3778463; 448578, 3778016; maps Devore (1988) and Cucamonga 454865, 3778781; 454801, 3778797; 448334, 3778009; 448331, 3778174; Peak (1988), California, land bounded 454757, 3778778; 454719, 3778797; 448299, 3778197; 448432, 3778555; by the following UTM NAD27 454671, 3778787; 454608, 3779009; 448445, 3778701; 448435, 3779371; coordinates (E, N): 449195, 3781261; 454516, 3779203; 454487, 3779282; 448385, 3779476; 448327, 3779549; 449359, 3781273; 449455, 3781238; 454509, 3779403; 454516, 3779600; 448210, 3779613; 448207, 3780168; 449550, 3781270; 449715, 3781238; 454652, 3780171; 454614, 3780232; 448397, 3780102; 448356, 3780232; 449785, 3781184; 450509, 3781194; 454446, 3780263; 454271, 3780270; 448283, 3780368; 448242, 3780419; 450909, 3781295; 451007, 3781362; 454271, 3780432; 453852, 3780435; 447032, 3780410; 447035, 3781480; 451963, 3781353; 452099, 3781270; 453861, 3780060; 453782, 3780003; 447305, 3781483; 447477, 3781394; 452376, 3781251; 452490, 3781191; 453855, 3779898; 453858, 3778752; 447562, 3781340; 447613, 3781340; 452788, 3781092; 452884, 3781003; 454255, 3778743; 454243, 3777913; 447737, 3781422; 447743, 3781467; 452896, 3780864; 453004, 3780860; 453611, 3777517; 453601, 3777263; 448007, 3781473; 448096, 3781384; 453881, 3780857; 453877, 3780816; 453046, 3777273; 453033, 3778181; 448489, 3781181; 448705, 3781156; 453988, 3780791; 454706, 3780785; 452957, 3778181; 452953, 3778244; 448731, 3780994; 448893, 3781003; 452242, 3778266; 452242, 3778746; 454757, 3780876; 455017, 3780886; 449074, 3781102; returning to 449195, 451860, 3778746; 451852, 3779565; 455217, 3781099; 455224, 3781251; 3781261; excluding land bounded by 455150, 3781432; 455166, 3781559; 451509, 3779568; 450763, 3778822; 452900, 3779300; 453300, 3779300; 455081, 3781657; 455090, 3781683; 450763, 3778781; 451033, 3778755; 453300, 3779000; 453200, 3779000; 455281, 3781676; 455281, 3781483; 451029, 3778295; 450934, 3778171; 453200, 3778900; 453000, 3778900; 455344, 3781368; 455360, 3781273; 450807, 3778168; 450791, 3777962; 455376, 3781222; 455366, 3781022; 450734, 3777958; 450718, 3777362; 453000, 3779200; 452900, 3779200; 455347, 3781003; 455312, 3780905; 450629, 3777396; 450553, 3777396; 452900, 3779300. 455290, 3780800; 455281, 3780689; 450229, 3777273; 450010, 3777273; (ii) Map Unit 4 follows. VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 ER23AP02.004 Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules and Regulations 19845 Dated: April 12, 2002. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 02–9596 Filed 4–22–02; 8:45 am] BILLING CODE 4310–55–P VerDate Apr<19>2002 15:45 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\23APR2.SGM pfrm13 PsN: 23APR2 ER23AP02.005 Tuesday, April 23, 2002 Part III Securities and Exchange Commission 17 CFR Parts 230, 239, 270, and 274 Registration Form for Insurance Company Separate Accounts Registered as Unit Investment Trusts That Offer Variable Life Insurance Policies; Final Rule VerDate 11 SECURITIES AND EXCHANGE insurance policies must comply with register under the Investment Company COMMISSION Form N–6. Act of 1940 [15 U.S.C. 80a–1 et seq.] B. Final Compliance Date: All (‘‘Investment Company Act’’) and to 17 CFR Parts 230, 239, 270, and 274 insurance company separate accounts offer their securities under the [Release Nos. 33–8088; IC–25522; File No. that are registered as unit investment Securities Act of 1933 [15 U.S.C. 77a et S7–9–98] trusts and that currently offer variable seq.] (‘‘Securities Act’’). For these life insurance policies with effective registrants, the proposed form will RIN 3235–AG37 registration statements must comply replace Forms N–8B–2 [17 CFR 274.12] with Form N–6 for post-effective and S–6 [17 CFR 239.16], currently used Registration Form for Insurance amendments that are annual updates to by unit investment trusts to register Company Separate Accounts their registration statements filed on or under the Investment Company Act and Registered as Unit Investment Trusts after December 1, 2002, and no later to offer their securities under the That Offer Variable Life Insurance than December 1, 2003. Securities Act. In addition, the Policies 2. Form N–1A: All new registration Commission is amending Form N–1A AGENCY: Securities and Exchange statements, and post-effective [17 CFR 239.15A; 17 CFR 274.11A] to Commission. amendments that are annual updates to require a fee table for mutual funds that effective registration statements, filed on ACTION: Final rule; Request for offer their shares as investment options comments on Paperwork Reduction Act or after September 1, 2002, must comply for variable life insurance policies and burden estimate. with the amendment to Form N–1A. variable annuity contracts. The Comment Date: Comments on the Commission also is adopting technical SUMMARY: The Securities and Exchange ‘‘collection of information’’ amendments to rules 134b, 430, 430A, Commission is adopting a new requirements within the meaning of the 495, 496, and 497 under the Securities registration form for insurance company Paperwork Reduction Act of 1995 for Act [17 CFR 230.134b, 230.430, separate accounts that are registered as the amendment to Form N–1A should 230.430A, 230.495, 230.496, and unit investment trusts and that offer be received by June 1, 2002. 230.497]; rules 8b–11 and 8b–12 under variable life insurance policies. The ADDRESSES: Comments should be the Investment Company Act [17 CFR form is to be used by these separate submitted in triplicate to Jonathan G. 270.8b–11 and 270.8b–12]; and Form N– accounts to register under the Katz, Secretary, Securities and Exchange 8B–2 [17 CFR 274.12]. In a companion Investment Company Act of 1940 and to Commission, 450 Fifth Street, NW., release, the Commission is proposing offer their securities under the Washington, DC 20549–0609. amendments to Form N–4 [17 CFR Securities Act of 1933. For these Comments also may be submitted 239.17b; 17 CFR 274.11c], the registrants, the form will replace the electronically at the following E-mail registration form for insurance company registration form currently used by unit address: [email protected]. All separate accounts that are registered as investment trusts to register under the comment letters should refer to File No. unit investment trusts and that offer Investment Company Act, and the S7–9–98; this file number should be variable annuity contracts. These registration form currently used by unit included on the subject line if E-mail is proposed amendments would revise the investment trusts to offer their securities used. All comments received will be format of the fee table of Form N–4 to under the Securities Act. The new available for public inspection and require disclosure of the range of registration form focuses prospectus copying in the Commission’s Public expenses for all of the investment disclosure on essential information that Reference Room, 450 Fifth Street, NW, options offered through a separate will assist an investor in deciding Washington, DC 20549–0102. account.1 whether to invest in a particular Electronically submitted comment Table of Contents variable life insurance policy. The new letters also will be posted on the I. Introduction and Background form also will minimize prospectus Commission’s Internet site (http:// II. Discussion disclosure about technical and legal www.sec.gov). We do not edit personal A. Part A—Information in the Prospectus matters, improve disclosure of fees and identifying information, such as names 1. Risk/Benefit Summary: Benefits and charges, and streamline the registration or electronic mail addresses, from Risks (Item 2) process by replacing two forms that electronic submissions. You should 2. Risk/Benefit Summary: Fee Table (Item were not specifically designed for submit only information that you wish 3) variable life insurance policies with a to make available publicly. 3. General Description of Registrant, Depositor, and Portfolio Companies single form tailored to these products. FOR FURTHER INFORMATION CONTACT: (Item 4) The Commission is also amending the Mark Cowan, Senior Counsel, Katy 4. Charges (Item 5) registration form used by mutual funds Mobedshahi, Attorney, or Paul G. 5. Taxes (Item 12) to register under the Investment Cellupica, Assistant Director, (202) 942– B. Part B—Statement of Additional Company Act and to offer their shares 0721, Office of Disclosure and Insurance Information under the Securities Act, to require a fee Product Regulation, Division of 1. Financial Statements (Item 24) table for mutual funds that offer their Investment Management, Securities and 2. Performance Data (Item 25) 3. Illustrations (Item 26) shares as investment options for Exchange Commission, 450 Fifth Street, C. Part C—Other Information—Exhibits— variable life insurance policies and NW, Washington, DC 20549–0506. Actuarial Opinion (Item 27(1)) variable annuity contracts. SUPPLEMENTARY INFORMATION: The D. Technical Rule Amendments DATES: Effective Date: June 1, 2002. Securities and Exchange Commission E. Adoption of Amendment to Form N–1A Compliance Dates: (‘‘Commission’’) is adopting new Form F. Effective Dates and Transition Period 1. Form N–6: N–6 [17 CFR 239.17c; 17 CFR 274.11d] G. Form N–1 III. Cost/Benefit Analysis A. Initial Compliance Date: All new for insurance company separate A. Background registration statements filed on or after accounts that are registered as unit B. Benefits December 1, 2002, for separate accounts investment trusts and that offer variable that are registered as unit investment life insurance policies. The form will be 1 Investment Company Act Release No. IC–25521 trusts and that offer variable life used by these separate accounts to (April 12, 2002) (‘‘Form N–4 Proposing Release’’). VerDate 11 C. Costs from $4.8 billion in December 1991 to variable life insurance. More D. Conclusion $42.8 billion in November 2001.4 importantly, many matters that would IV. Paperwork Reduction Act be significant to a buyer of a variable life Current Forms for Variable Life V. Effects on Efficiency, Competition, and insurance policy are not addressed at all Insurance Registration Capital Formation by the forms. VI. Regulatory Flexibility Act Certification A separate account funding a variable Another shortcoming of Forms N–8B– VII. Statutory Authority life insurance policy most commonly is 2 and S–6 is that they do not reflect Text of Rule Amendments and Forms registered as a unit investment trust fundamental improvements that we under the Investment Company Act.5 I. Introduction and Background have made to other investment company Separate accounts registered as unit registration forms, such as Form N–4 for Variable Life Insurance investment trusts are divided into sub- variable annuities and Form N–1A for accounts, each of which invests in a mutual funds, which facilitate clearer Variable life insurance is similar to different open-end management and more concise disclosure to traditional life insurance, except that investment company, or mutual fund investors.8 As a result, variable life the cash value and/or death benefit vary (‘‘Portfolio Company’’).6 insurance prospectuses have often been based on the investment performance of Both separate account unit investment unnecessarily lengthy and complex. the assets in which the premium trusts and the Portfolio Companies in payments are invested. Under a which they invest are registered as Form N–6 traditional life insurance policy, investment companies under the To address these shortcomings, the premium payments are allocated to an Investment Company Act, and their Commission issued a release proposing insurer’s general account and invested, securities are registered under the Form N–6 for public comment consistent with state law requirements, Securities Act. Investors in variable life (‘‘Proposing Release’’).9 Unlike the to enable the insurer to meet its death insurance policies receive the current forms, proposed Form N–6 was benefit and cash value guarantees. The prospectuses for both the separate specifically tailored to variable life investment return on assets in the account unit investment trust and the insurance. The proposed requirements general account has little or no direct Portfolio Companies. Portfolio of the form focused on information that effect on the cash value or the death Companies, as mutual funds, use Form is essential to a decision to invest in a benefit received. N–1A to register under the Investment particular variable life insurance policy, Company Act and to register their and the form was intended to enhance Premium payments under a variable shares under the Securities Act.7 the comparability of information about life policy, in contrast, are invested in Variable life separate accounts, as unit variable life insurance policies. The an insurance company separate account, investment trusts, register under the proposal sought to promote more which generally is not subject to state Investment Company Act on Form N– effective communication of information law investment restrictions. A variable 8B–2 and register their securities under about variable life insurance policies. life policyholder typically is offered a the Securities Act on Form S–6. All commenters expressed strong variety of investment options (e.g., Forms N–8B–2 and S–6 were support for proposed Form N–6.10 equity, bond, and money market mutual designed for non-separate account unit Commenters stated that proposed Form funds). Death benefits and cash values investment trusts and were adopted N–6 would improve the disclosure that are directly related to performance of before the establishment of the first investors receive about variable life the separate account, although typically separate account to fund variable life insurance. Commenters indicated that there is a guaranteed minimum death insurance policies. While much of their proposed Form N–6 would require benefit. required disclosure is useful, the forms disclosure of essential information in Variable life insurance was request some information that is not the prospectus in a concise and user- introduced in the early 1970s. During typically of consequence to a buyer of friendly format and thus would the years from the end of World War II to the late 1960s, there was a significant 4 Lipper Variable Insurance Products 8 Form N–1A [17 CFR 274.11A]; Form N–4 [17 Performance Analysis, 4th Quarter 2001 Report, CFR 274.11c]; Investment Company Act Release No. decline in the share of savings dollars Vol. I at 1–1 (Dec. 31, 2001); Lipper Variable 13689 (Dec. 22, 1983) [49 FR 614] (‘‘N–4 Proposing invested with life insurance companies. Insurance Products Performance Analysis Service, Release’’); Investment Company Act Release No. In an effort to counteract this trend, Vol. I at 169 (Jan. 31, 1992). 14575 (June 14, 1985) [50 FR 26145] (‘‘N–4 insurers began to offer a greater variety 5 Section 4(2) of the Investment Company Act Adopting Release’’); Investment Company Act defines ‘‘unit investment trust’’ as ‘‘an investment Release No. 12927 (Dec. 27, 1982) [48 FR 813] of products, including equity-based company which (A) is organized under a trust (‘‘1982 N–1A Proposing Release’’); Investment products such as variable life indenture, contract of custodianship or agency, or Company Act Release No. 13436 (Aug. 12, 1983) [48 insurance. 2 In recent years, variable life similar instrument, (B) does not have a board of FR 37928] (‘‘1983 N–1A Adopting Release’’); insurance has become an increasingly directors, and (C) issues only redeemable securities, Investment Company Act Release No. 22528 (Feb. each of which represents an undivided interest in 27, 1997) [62 FR 10898], correction [62 FR 24160] important segment of the insurance a unit of specified securities, but does not include (‘‘1997 N–1A Proposing Release’’); Investment industry. By 2000, variable life a voting trust.’’ 15 U.S.C. 80a–4(2). Company Act Release No. 23064 (Mar. 13, 1998) [63 insurance accounted for 51.3% of first 6 An open-end management investment company FR 13916] (‘‘1998 N–1A Adopting Release’’). year individual life insurance is an investment company, other than a unit 9 Investment Company Act Release No. 23066 investment trust or face amount certificate (March 13, 1998) [63 FR 13988] (‘‘Form N–6 premiums, and 19.6% of total company, that offers for sale or has outstanding any Proposing Release’’). 3 individual life insurance premiums. redeemable security of which it is the issuer. 10 The Commission received 16 comment letters Since the early 1990s, assets in variable Section 4(3) of the Investment Company Act [15 from 13 commenters on proposed Form N–6. The life products have grown substantially, U.S.C. 80a–4(3)]; Section 5(a)(1) of the Investment commenters included two trade associations, ten Company Act [15 U.S.C. 80a–5(a)(1)]. As an insurance companies, and one attorney. The alternative to the structure described in the text, a comment letters, as well as a comment summary 2 Securities and Exhange Commission (‘‘SEC’’), variable life insurance separate account can be prepared by the Commission’s staff, are available Division of Investment Management, Variable Life organized in a single-tier structure, as an open-end for public inspection and copying at the Insurance and the Petition for the Issuance and management investment company. Today, this Commission’s Public Reference Room in File No. Amendment of Exemptive Rules at 1–2 (Jan. 1973). structure is used by few variable life insurance S7–9–98. The comment summary is also available 3 American Council of Life Insurers, Life Insurers registrants. on the Commission’s Internet website at VerDate 11 facilitate decision making by investors. The adoption of Form N–6 is the format.17 It is designed to assist Commenters also recommended changes latest Commission action reflecting our investors in evaluating and comparing to proposed Form N–6 to improve long-standing commitment to improve variable life insurance policies by disclosure. We are adopting proposed the quality of disclosure available to providing them with key information Form N–6 substantially as proposed, investment company investors. During about a policy in a standardized, easily with modifications that reflect our the 1980s, the Commission introduced accessible place. Commenters generally consideration of commenters’ the innovative two-part disclosure supported inclusion of the risk/benefit suggestions. format for mutual funds and variable summary in the prospectus with Form N–6 will promote effective annuities and adopted uniform fee suggested modifications, several of disclosure to variable life insurance tables for mutual funds and variable which we are adopting today. investors, providing the following annuities. 14 We have taken significant As proposed, the risk/benefit benefits: steps in the past few years, including summary would have been required to • Tailored Registration Form. Form the comprehensive revision of Form N– contain specified information in a N–6 will eliminate requirements in the 1A, the mutual fund disclosure form, to required order and would not have been current registration forms that are not provide a standardized risk/return permitted to contain additional 18 relevant to variable life insurance.11 summary at the beginning of every information. Some commenters Form N–6 also will include items that mutual fund prospectus, require mutual expressed the view that providing are specifically addressed to variable funds to prepare disclosure documents registrants greater flexibility in life insurance products, such as using plain English, and eliminate describing policy features would result descriptions of contractual provisions prospectus clutter that obscures in more useful and understandable relating to premiums, death benefits, information that is helpful to investors disclosure. We agree and have modified cash values, surrenders and making an investment decision.15 Last the proposed requirement to permit the withdrawals, and loans.12 year, we adopted amendments to our inclusion of additional information and • Plain English. The Commission’s rules and forms to improve the to eliminate the ordering requirements of Item 2. As adopted, Item 2 requires plain English rule will apply to the front disclosure that mutual funds provide a concise, plain English description of and back cover pages and the risk/ about their independent directors and to the policy, including the benefits and benefit summary in the variable life require mutual funds to disclose after- 13 tax returns.16 principal risks. insurance prospectus. This should We have eliminated the proposed result in better, clearer disclosure to Form N–6 is designed to promote requirement to disclose that part of the investors. more effective communication of • policy premium is allocated to Reducing Complex and Lengthy information about variable life insurance coverage, part of the premium Prospectus Disclosure. Form N–6 will insurance policies. Today’s adoption of is invested, and part of the premium is streamline variable life prospectus Form N–6 represents a significant step used to pay sales loads and other disclosure by adopting a two-part format toward our goal of better, clearer, more charges.19 Commenters noted that this consisting of a simplified prospectus, concise disclosure for all investors. disclosure may be inaccurate in some designed to contain essential II. Discussion cases, e.g., charges may be deducted information that assists an investor in from cash value rather than premium making an investment decision, and a We discuss below the significant payments. We agree. In addition, we statement of additional information comments that we received on proposed believe that this disclosure is (‘‘SAI’’), containing more extensive Form N–6 and the Items that we have unnecessary because the investment and information and detailed discussion of modified in response to comments. cost aspects of the policy are adequately matters included in the prospectus that covered elsewhere in the prospectus.20 investors could obtain upon request. A. Part A—Information in the One commenter recommended that • Standardized Fee Information. Prospectus registrants be required to discuss the Form N–6 will require variable life 1. Risk/Benefit Summary: Benefits and risk of replacing one policy with insurance registrants to provide a Risks (Item 2) another, which may include substantial uniform, tabular presentation of fees deferred sales charges on the and charges, in order to improve the We are adopting, with modifications, surrendered policy, an additional disclosure to investors of the often the requirement that a risk/benefit medical examination, and higher complex charges associated with summary be included at the beginning insurance charges. Item 2, as proposed variable life insurance policies and of every prospectus. The risk/benefit and adopted, requires disclosure that increase the comparability of charges summary will provide key information variable life insurance policies are among policies. about a policy, including its risks and unsuitable as short-term savings • Integrated Disclosure Document. benefits, and is intended to respond to vehicles, and we would expect this Form N–6 will provide variable life investors’ strong preference for disclosure to include a discussion of the insurance registrants with an integrated summary information in a standardized adverse consequences of early form for Investment Company Act and Securities Act registration, eliminating 14 Investment Company Act Release No. 16766 17 For example, in connection with an initiative unnecessary paperwork and duplicative (Jan. 23, 1989) [54 FR 4772] (‘‘N–4 Fee Table to permit mutual funds to use profiles summarizing reporting. Adopting Release’’); Investment Company Act key information, many individual investors wrote Release No. 16244 (Feb. 1, 1988) [53 FR 3192] (‘‘N– to the Commission about the need for concise, 1A Fee Table Adopting Release’’); N–4 Adopting summary information relating to a fund. See 11 See, e.g., Item 18(d) of Form N–8B–2 (requiring Release, supra note 8; 1983 N–1A Adopting Investment Company Act Release No. 23065 (Mar. disclosure of schedule of distributions made to Release, supra note. 13, 1998) [63 FR 13968, 13969] (discussing security holders). 15 1998 N–1A Adopting Release, supra note 8. individual investors’ strong support for the 12 Items 7 (premiums), 8 (death benefits and cash 16 Investment Company Act Release No. 24816 Commission’s fund profile proposal). values), 9 (surrenders and withdrawals), and 10 (January 2, 2001) [66 FR 3734], correction [66 FR 18 Form N–6 Proposing Release, supra note 9, 63 (loans). 13234]; Investment Company Act Release No. 24832 FR at 14008–09. 13 Rule 421(d) under the Securities Act [17 CFR (January 18, 2001) [66 FR 9002] (‘‘After-Tax Returns 19 Id. at 14009. 230.421(d)]. Adopting Release’’). 20 See, e.g., Item 3 and Item 7(f). VerDate 11 surrender, such as the payment of options, and the Commission continues benefits required by Item 2.27 For the deferred sales charges. We have, to believe that a variable life insurance first time, variable life insurance however, determined not to require a prospectus may become too long and prospectuses will include a fee table separate discussion of replacement risks complex if it includes risk information similar to those long required for both because the risks of a replacement specific to each Portfolio Company. As mutual funds and variable annuities.28 transaction, including the risk that a a result, investors are better served by Our goal is to promote, to the greatest replacement may be unsuitable, are not consulting the Portfolio Company extent possible, uniformity, simplicity, risks of a particular policy, and we prospectus for risk information relating and comparability in fee disclosure. believe that the prospectus should focus to the particular Portfolio Companies in Commenters were divided in their on the policy itself. which they are interested. At the views on the requirement to include a We are concerned, however, that suggestion of commenters, however, we tabular presentation of fees and charges replacement transactions associated have modified Item 2 to expressly at the beginning of all variable life with variable life insurance policies permit the inclusion of information insurance policy prospectuses. may not, in all cases, be in the best 24 about the Portfolio Companies. Commenters that supported the fee table interests of investors. These transactions Whether or not a registrant elects to noted that it would facilitate create a potential for sales practice include information about the Portfolio comparisons among variable life abuses, through which contract owners Companies, Item 2 will require a insurance policies and bring variable may be induced to make statement to the effect that a life insurance fee disclosure into general disadvantageous exchanges that result comprehensive discussion of the risks of parity with variable annuities and in the payment of additional sales each Portfolio Company may be found mutual funds. Commenters that objected charges and broker compensation. 21 We in the Portfolio Company’s prospectus. note that replacement transactions We have added an instruction to make to the requirement asserted that the involving variable insurance products it clear that if the risk/benefit summary proposed fee table would not provide have been the object of increasing includes information that responds to useful disclosure for a prospective regulatory scrutiny in recent years.22 We the requirements of other form items, investor seeking to evaluate a variable remind broker-dealers of their obligation the information need not be repeated life insurance policy or to compare to recommend replacement transactions elsewhere in the Prospectus.25 This several variable life insurance policies only when they are suitable.23 We also could, for example, permit a registrant because of the complexity of variable urge life insurance companies to that includes information about the life insurance fees and charges. These monitor replacement activity with Portfolio Companies in the risk/benefit commenters recommended alternatives respect to their policies on an ongoing summary to modify or omit discussion that would permit issuers to provide basis. of the Portfolio Companies in the body disclosure of fees and charges in a Proposed Form N–6 contemplated of the prospectus. format of their choosing, which could that risks associated with Portfolio As these modifications to proposed include tabular presentations, flow Companies would be addressed in the Form N–6 suggest, we believe that it is charts, and narrative descriptions. Portfolio Companies’ prospectuses, not appropriate to accord registrants broad As outlined in the Proposing Release, the variable life insurance prospectus. flexibility to include a narrative we agree with commenters that the fees Policies frequently offer numerous summary that is most useful to their and charges associated with variable life Portfolio Companies as investment investors. We are, however, concerned insurance policies often are quite that this flexibility would permit a complex for several reasons. First, the 21 Cf. NASD Notice to Members 00–44, The NASD registrant to include excessively structure of fees often differs from one Reminds Members Of Their Responsibilities detailed information in the summary, Regarding The Sale of Variable Life Insurance (July policy to another, making comparisons 2000) (discussing need for NASD member firms to with the result that other important among products difficult. Second, fees adopt procedures to ensure that replacement information that is not required by Item typically are imposed at several levels recommendations involving variable life insurance 2, particularly the fee table required by within a variable life insurance policy, policies are suitable). Item 3, would not be prominently 22 See In the Matter of Raymond A. Parkins, Jr., making it difficult to assess the Admin. Proc. File No. 3–10300, Investment located in the prospectus. In order to aggregate effect of charges. For example, Advisers Act Release No. 2010 (Jan. 18, 2002) provide registrants broad flexibility to management and other expenses may be (Order Making Findings and Imposing Remedial design the narrative summary, while deducted at the Portfolio Company Sanctions and Cease-and-Desist Order) (finding that ensuring that policy costs will receive investment adviser fraudulently switched clients’ level, asset-based charges such as a variable annuity investments, and barring adviser the prominence they deserve, we have mortality and expense risk charge may from association with any broker, dealer, or modified proposed Form N–6 to require be deducted against separate account investment adviser for two years); Press Release, that the fee table must precede the assets, and other charges, such as cost NASD Regulation Fines Pruco Securities $20 information required by Item 2 if the Million (Jul. 8, 1999) (announcing action against of insurance, may be assessed against a broker/dealer in connection with the offer and sale information provided in response to policyholder’s individual cash value. of variable life insurance policies, including Item 2 exceeds five pages in length.26 Third, some variable life charges, misrepresentations in connection with the purchase particularly cost of insurance (i.e., the of new variable life insurance policies by existing 2. Risk/Benefit Summary: Fee Table customers) VerDate 11 standardized disclosure format than for insurance prospectuses to include a fee Requirement To Disclose All Fees and mutual funds or variable annuities. table. Charges We continue to believe, however, that Fee Table Format We are adopting, as proposed, the the complexity of variable life insurance requirement that registrants disclose all fees and charges makes it particularly The fee table consists of three separate fees and charges, whether or not a important that investors receive clear, sections. The first section shows specific caption is provided for a charge understandable disclosure about this policyholder transaction fees, such as in the fee table.33 A number of essential aspect of the investment sales loads, surrender charges, and commenters objected to the proposal to decision. As we noted in the Proposing transfer fees. The second section shows require disclosure of all fees and Release, the importance of this annual charges, excluding annual charges, particularly charges for riders, disclosure has been heightened since Portfolio Company operating expenses. in the fee table. These commenters the passage of the National Securities The third section shows annual noted that rider charges generally apply Markets Improvement Act of 1996 Portfolio Company operating expenses, to a limited number of policyholders, (‘‘NSMIA’’). NSMIA amended Sections are not considered significant features of 26 and 27 of the Investment Company including management fees, distribution fees, and other expenses. a policy, and could dominate a fee table Act to replace specific limits on the and detract from the information about amount, type, and timing of charges that We are modifying the proposed four- the base policy. Some commenters applied to variable insurance contracts column format that would have required recommended instead that the with a requirement that aggregate a registrant to identify each charge, Commission limit the disclosure charges be reasonable in relation to the when the charge is deducted, the required in the fee table to fees and services rendered, the expenses amount of the charge, and whether the charges that are relevant to most expected to be incurred, and the risks charge is deducted from all policies or policies or that may be charged to a 29 assumed by the insurance company. only certain policies. Commenters typical investor. The increased flexibility to structure generally questioned the need for the We share commenters’ concern that variable life insurance charges given to fourth column, identifying whether the investors not be overwhelmed by insurers by NSMIA increases the need charge is deducted from all policies or information of limited relevance. At the for clear, understandable disclosure of only certain policies. We agree, and the same time, however, we do not believe charges.30 fee table, as adopted, does not include that it is feasible to distinguish between Although we acknowledge the this column. Registrants that desire to charges for optional features that ought complexities associated with designing indicate that a charge is not applicable to be included in the fee table because a fee table for variable life insurance, we to all policies may do so through they are expected to be selected by most agree with those commenters who footnotes to the fee table or some similar or a majority of investors, or by believe that it will facilitate comparison means. ‘‘typical’’ investors, and charges for among variable life insurance policies.31 optional features that are expected to be We are also changing the format of the As we noted in the Proposing Release, less popular and hence should be Portfolio Company operating expenses in recent years, the Commission has omitted from the fee table. We note that observed that a number of variable life section of the fee table in response to in recent years insurers have insurance registrants, on their own commenters’ suggestions, so that the increasingly offered variable insurance initiative, have added relatively simple, presentation of Portfolio Company fees products with a variety of so-called tabular presentations of fees and charges and expenses will more closely ‘‘unbundled’’ optional features, each of to their prospectuses, including fee resemble the presentations required by which has a specific charge.34 Insurers tables that conform generally to the Forms N–1A and N–4. Under proposed maintain that these ‘‘unbundled’’ format we proposed. The Commission Form N–6, Portfolio Company operating products are advantageous for investors believes that these registrants’ efforts expenses would have been disclosed in because they allow investors to elect represent a significant step towards a format similar to that prescribed for and pay for only those features that they enhanced communication with charges assessed by an insurer under the want.35 However, this trend toward investors about fees and charges and terms of a variable life insurance policy. unbundling of features and charges that it is appropriate, at this time, to We agree with a commenter who argued would make the task of separating out extend these efforts to the industry as a that the use of this format would tend those optional features that will be whole, by requiring variable life to obscure the important differences selected by a ‘‘typical’’ investor much between Portfolio Company charges and more difficult. Consequently, we are 29 15 U.S.C. 80a–26; 15 U.S.C. 80a–27; National charges assessed under a variable life adopting the requirement as proposed. Securities Markets Improvement Act of 1996, Pub. L. No. 104–290 (1996), Section 205; S. Rep. No. 293, insurance policy, such as the fact that We note, however, that a registrant may 104th Cong., 2d Sess. 22 (1996); H. Rep. No. 622, Portfolio Company expenses are not 104th Cong., 2d Sess. 45–46 (1996); Division of contractual and may vary from year to 33 Instruction 2.(c) to Item 3; Instruction 3.(e) to Investment Management, SEC, Protecting Investors: year. The Commission believes that the Item 3. A Half-Century of Investment Company Regulation, 34 Timothy C. Pfeifer, Growing Rider Use Furthers at 386–90 (1992) (describing pre-NSMIA regulation format used for mutual fund expenses in Flexibility But Also Complexity, National of variable life insurance policy charges). Forms N–1A and N–4 has provided Underwriter Life & Health/Financial Services 30 In addition, in light of NSMIA, the National uniformity, simplicity, and Edition, Sept. 3, 2001, at 22 (describing growth in Association of Securities Dealers, Inc. (‘‘NASD’’) comparability in fund fee disclosure, optional riders on both variable annuities and amended its Conduct Rules to eliminate the variable life insurance); Linda Koco, Shaping Up maximum sales charge limitations applicable to and that presentation of Portfolio the Next-Gen VULs, National Underwriter-Life & variable insurance contracts. Securities Exchange Company expenses in this format in Health/Financial Services Edition, Jan. 1, 2001, at Act Release No. 42043 (Oct. 20, 1999) [64 FR 58112 Form N–6 will facilitate understanding 20 (insurance company executive quoted as (Oct. 28, 1999)] (order approving File No. SR– 32 characterizing the variable universal life business as NASD–98–14). of Portfolio Company expenses. moving toward flexibility and unbundling). 31 We note that the Commission’s plain English 35 Timothy C. Pfeifer, Growing Rider Use Furthers rule encourages use of tabular presentations for 32 See 1997 N–1A Proposing Release, supra note Flexibility But Also Complexity, supra note 34 complex material whenever possible. 17 CFR 8, 62 FR at 10907 (discussing role of Form N–1A (arguing that optional riders facilitate policyholder 230.421(d). fee table). choice). VerDate 11 readily ensure that disclosure of rider charge and how the cost of insurance policyholder with additional disclosure charges does not overwhelm disclosure charge increases over the life of the concerning the cost of insurance, of base contract charges by, for example, policy. immediately following the fee table.41 disclosing rider charges at the end of the We continue to believe that fee table This disclosure might include, for second section of the fee table, under a disclosure of the cost of insurance can example, an explanation of the factors caption that indicates that the charges serve as a flag to prospective investors that affect the cost of insurance or tables are for optional features. that this is a significant charge which showing the cost of insurance for a bears further investigation. We are also Cost of Insurance spectrum of representative persuaded that disclosure of the range of policyholders. Permitting this We are modifying the proposed cost of insurance will more effectively additional disclosure responds to requirement that registrants disclose in demonstrate the significance of this commenters’ concerns that simple the fee table the minimum and charge if it is coupled with disclosure of numerical disclosure in the fee table maximum cost of insurance charges that the cost of insurance paid by a may not be adequate to explain the cost may be imposed under a variable life hypothetical representative 36 of insurance to investors. Allowing insurance policy. Cost of insurance policyholder. While the cost of additional disclosure will also permit generally is a significant expense item insurance that will be paid by a registrants to experiment with different for variable life insurance prospective investor will likely differ approaches, which may, over time, policyholders.37 For that reason, the from that shown for the representative assist us in developing a better approach Commission believes that it is important policyholder, disclosure of the cost of to disclosure of cost of insurance for investors to receive information insurance for the representative charges. about the level of this charge. The policyholder, together with disclosure Commission also recognizes, however, of the minimum and maximum cost of Requirement To Disclose Maximum that this charge varies from policyholder insurance, should give prospective Charges to policyholder, based on individual investors a general understanding of the characteristics such as age, gender, and range of cost of insurance charges. The proposed fee table would have risk classification, so that the charge Therefore, we are requiring that required disclosure of the maximum does not readily lend itself to registrants include in the fee table the guaranteed charge for each item unless quantification in a table that applies to cost of insurance charge that would be a specific instruction directs otherwise all policyholders. paid by a purchaser of the policy with (e.g., cost of insurance). Commenters Commenters uniformly opposed the characteristics (e.g., sex, age, and rating that expressed views on this proposed requirement to disclose a classification) that are fairly requirement recommended that the form range of the cost of insurance charge, representative of actual or expected permit registrants to disclose current arguing that this approach would result purchasers of the policy, in addition to charges along with the guaranteed in the presentation of numbers that the minimum and maximum charges charges, arguing that placing current would have little relevance to many that may be imposed.39 The charge information in a footnote will not investors. Commenters, however, were requirements for the characteristics of adequately disclose variations between far from uniform in their the representative policyholder would current and guaranteed charges and that recommendations to address this issue. be similar to the requirements for the disclosing only the guaranteed charge Some commenters suggested that the characteristics of policyholders used in may significantly overstate the amount Commission require separate cost of hypothetical illustrations, and the of a charge. insurance tables that disclose a range of registrant would be required to describe To address commenters’ concerns, the cost of insurance rates for various issue these characteristics in a sub-caption for Commission has revised Item 3 to ages, rate classes, genders, and policy the charge.40 To further address permit, but not require, registrants to years, noting that the added complexity commenters’ concerns that the specific disclose current charges in the fee table of a more detailed presentation is numerical cost of insurance information so long as the current charge disclosure outweighed by the benefit of more in the fee table would have limited is no more prominent than, and does precise information about this charge relevance to any particular investor, we not obscure or impede understanding of, which often represents the largest cost are also requiring narrative disclosure (i) the required maximum guaranteed of a policy. Another commenter that the cost of insurance varies based charge disclosure. 42 recommended disclosure of the cost of on individual characteristics; (ii) that insurance charge for a policyholder with the cost of insurance charge or other Captions in the Fee Table characteristics that are fairly charge shown in the table may not be representative of purchasers of a policy, representative of the charge that a We are making some technical which we had identified in the particular policyholder will pay; and changes to address commenters’ Proposing Release as a possible (iii) how a policyholder may obtain concerns regarding the fee table alternative approach to disclosure of more information about the particular captions. We are modifying the cost of insurance.38 Other commenters cost of insurance or other charges that Instructions to the fee table to allow a preferred a requirement to provide would apply to him or her. registrant to modify or add captions if narrative disclosure about the cost of Further, we are permitting registrants the captions shown do not provide an insurance, such as disclosure of the to supplement this disclosure of the accurate description of its fees and factors that affect the cost of insurance range of cost of insurance and the cost expenses.43 This modification of insurance for a representative recognizes that, following the enactment 36 Instruction 3.(b) to Item 3. of NSMIA, insurers have increased 37 See Roger L. Blease, Costs Count: A Best’s 39 Instruction 3.(b) to Item 3. This approach also flexibility to structure variable life Policy Reports Survey Examines the Costs Incurred applies to other charges that depend on individual insurance charges, subject to a with the Life Insurance Portion of Variable policyholder characteristics. Id. Universal Life Policies, Best’s Review—Life-Health 40 Instruction 3.(b)(i) to Item 3. Cf. Item 26(c) and 41 Insurance Edition, Jan. 1997, at 37. (d) (specifying requirements for premium amounts, Instruction 3.(b)(ii) to Item 3. 38 Form N–6 Proposing Release, supra note 9, 63 ages, and rating classifications to be used in 42 Instruction 1.(f) to Item 3. FR at 13993. hypothetical illustrations). 43 Instruction 1.(c) to Item 3. VerDate 11 requirement that those charges be fund that offers its shares as investment voting of Portfolio Company shares. One reasonable in the aggregate.44 options for variable insurance products commenter recommended, consistent The Commission also has revised Item to include a fee table.47 The fee table in with proposed Item 4, that a brief 3 to require the heading ‘‘Periodic Form N–6 contains a statement referring discussion of voting rights be included Charges’’ instead of ‘‘Annual Charges’’ investors to the Portfolio Company in the prospectus, with more technical at the beginning of the second section of prospectuses for more detail concerning aspects disclosed in the SAI. Another the fee table. This reflects the fact that Portfolio Company fees and expenses. commenter suggested that all some charges under variable life This will ensure that investors in information about voting rights be insurance policies may be assessed at variable life insurance policies have included in the SAI, consistent with the intervals other than annually (e.g., a access to complete information about approach of Form N–1A for mutual monthly deduction for the cost of Portfolio Company fees and expenses. funds.50 We have decided to retain the insurance charge). We are also adopting, as proposed, the requirement that the variable life requirement that Portfolio Company insurance prospectus concisely discuss Portfolio Company Fees and Charges operating expenses be disclosed before policyholders’ rights with respect to We are adopting, as proposed, the expense reimbursement and fee waiver voting Portfolio Company shares. Unlike requirement that, for a registrant that arrangements. Expenses after an investor in a mutual fund, the owner offers multiple Portfolio Companies, the reimbursement or waiver could be of a variable life insurance policy does fee table require disclosure of the range disclosed in a footnote. This approach is not hold legal title to the shares of the of expenses for all of the Portfolio consistent with Form N–1A.48 underlying Portfolio Companies and a Companies.45 Commenters were divided We have deleted the instruction to the policyholder’s rights to vote on matters regarding how Portfolio Company Portfolio Company expenses section of affecting the Portfolio Companies are expenses should be disclosed. Some the fee table that would have required less obvious than the rights of mutual commenters recommended that Form separate disclosure of the portion of fund investors. N–6 require registrants to include a ‘‘Other Expenses’’ that represents 4. Charges (Item 5) complete presentation of the fees and distribution or similar expenses charges for each Portfolio Company. deducted from a Portfolio Company’s We are adopting Item 5, which Other commenters either supported the assets other than pursuant to a rule 12b– requires registrants to describe briefly Commission’s proposal to require 1 plan.49 This disclosure will be found all charges deducted from premiums, disclosure of the range of the expenses in the prospectus for any Portfolio cash value, assets of the registrant, or for all of the Portfolio Companies or Company that deducts expenses of this any other source, with technical recommended that the Commission nature, and we do not believe that modifications to address commenters’ permit issuers to determine how to disclosure of the range of such expenses concerns. As proposed, Item 5(a) would disclose Portfolio Company expenses. for all Portfolio Companies will be have required registrants to explain As we stated in the Proposing Release, particularly meaningful. what is provided in consideration for each charge. We have revised Item 5 to we are concerned that, because variable 3. General Description of Registrant, life fees and charges are complex, and require an explanation of what is Depositor, and Portfolio Companies provided in consideration for ‘‘the because policies frequently offer (Item 4) numerous Portfolio Companies as charges,’’ rather than ‘‘each charge.’’ investment options, investors could be We are adopting, as proposed, Item 4, Where multiple charges are used as a combined pool of resources, a registrant overwhelmed by information if the fees which requires a concise discussion of may describe what is provided in and charges for each Portfolio Company the organization and operation of the consideration for the charges as a group. were required to be separately stated in registrant, including a discussion of the However, where it is possible to identify the fee table. For this reason, we have rights of policyholders to instruct the what is provided in consideration for a determined not to require a complete insurance company depositor on the particular charge, this should be presentation of the fees and charges for 47 separately explained (e.g., use of sales each Portfolio Company. To address the See Section II.E. infra, ‘‘Adoption of Amendment to Form N–1A.’’ load to pay distribution costs of the concerns of some commenters, however, 48 Under Form N–1A, the staff has permitted policy or use of the cost of insurance that the particular fees and charges of a mutual funds with fees that are subject to a charge to pay for insurance coverage). specific Portfolio Company are more contractual limitation that requires reimbursement or waiver of expenses to add two lines to the fee We have also revised the language of important to investors than the range of Instruction 2 to Item 5(a) to avoid fees and charges for all Portfolio table: one line showing the amount of the reimbursement or waiver, and a second line confusion between the cost of insurance Companies, we are permitting, but not showing the fund’s net expenses after subtracting rate, and the cost of insurance charge, requiring, registrants to include the reimbursement or waiver from the total fund operating expenses. See Letter from Barry D. Miller, which is the cost of insurance rate times disclosure of the fees and expenses for the net amount at risk. In addition, we each Portfolio Company, in addition to Associate Director, Division of Investment Management, SEC, to Craig S. Tyle, General have clarified that disclosure regarding the disclosure of the range of expenses Counsel, Investment Company Institute (Oct. 2, increased cost of insurance rates for for the Portfolio Companies.46 This will 1998). We intend that the staff construe the fee table requirements of Form N–6 consistent with the healthy individuals attributable to provide registrants the flexibility to simplified underwriting is required only include this detailed information when approach taken under Form N–1A, to permit the addition of one line to the fee table showing the when simplified underwriting would they determine that it would be helpful, range of net total Portfolio Company operating cause healthy individuals to pay higher and not overwhelming, to investors. expenses after taking account of contractual limitations that require reimbursement or waiver of cost of insurance rates than they would In addition, we are revising Form N– pay under a substantially similar policy 1A to require the prospectus of a mutual expenses. This additional line should be placed immediately under the ‘‘Total Annual [Portfolio that is offered by the insurer using Company] Operating Expenses’’ line of the fee table 44 different underwriting methods. See supra Section II.A.2., ‘‘Fee Table Required’’ and should have an appropriate descriptive caption. We have eliminated proposed Item (discussing elimination of limits on variable life A footnote to the fee table should describe the insurance charges by NSMIA). contractual arrangement. 5(d), which would have required a 45 Instruction 4.(b) to Item 3. 49 Form N–6 Proposing Release, supra note 9, 63 46 Instruction 4.(h) to Item 3. FR at 14010 (Proposed Instruction 4.(d) to Item 3). 50 Item 17(a)(2)(iv) of Form N–1A. VerDate 11 description of the type of operating B. Part B—Statement of Additional its ability to pay the insurance benefits expenses for which the registrant is Information offered under variable life insurance policies, and therefore many investors responsible, and, if the organizational 1. Financial Statements (Item 24) expenses of the registrant are to be paid may find financial information about out of its assets, an explanation of how Location of Financial Statements the depositor useful. The proposed the expenses will be amortized and the We are adopting the financial approach to depositor financial period of amortization.51 We agree with statement requirements of proposed information, which requires that the SAI commenters who argued that Form N–6, which were generally contain only the depositor’s balance information about expenses paid out of supported by commenters and are sheets, will allow a shorter SAI than separate account assets would be similar to those of Form N–4, would be the case if complete financial reflected in the fee table, and that substantially as proposed. A variable statements of the depositor were additional disclosure about these life insurance prospectus will not be required, while still providing investors specific categories of expenses would required to include the financial with significant information about the not be useful to investors. In addition, statements of either the registrant or the financial condition of the depositor in we note that organizational expenses insurance company depositor. 53 The the SAI. We are not persuaded that we may no longer be amortized in any full financial statements of the registrant should condition delivery of the financial statements, which are an event, but must be expensed as will be in the SAI, which will be integral part of the SAI, upon whether incurred.52 available to investors upon request, free of charge. The SAI will also contain an investor has requested the SAI solely 5. Taxes (Item 12) comparative balance sheets for the last in order to alleviate the burden of state 56 two fiscal years for the depositor and, in requirements. We are adopting, as proposed, the certain cases, a more current interim requirement that registrants describe the Preparation of Depositor Financial balance sheet for the depositor. We are Statements in Accordance With GAAP material tax consequences to the requiring that the other financial We are revising Instruction 1 to Item policyholder and beneficiary of buying, statements of the depositor (e.g., 24(b) to clarify when a depositor’s holding, exchanging, or exercising rights statements of income and statements of financial statements must be prepared under the policy. Registrants are changes in stockholders’ equity) be in accordance with generally accepted required to discuss the taxation of death included in the registration statement, accounting principles in the United benefit proceeds, periodic and non- but they may be included in Part C States (‘‘GAAP’’) and when they may be periodic withdrawals, loans, and any rather than the SAI. We are requiring prepared in accordance with statutory other distribution that may be received that these financial statements also be requirements.57 As adopted, Instruction under the policy, as well as tax benefits made available to investors upon 1 to Item 24(b), like Instruction 1 to Item accorded the policy. request, free of charge. 23(b) of Form N–4, would provide that Two commenters expressed the view Form N–6 would permit issuers to incorporate by reference into the SAI a depositor’s financial statements may that tax disclosure in the prospectus be prepared in accordance with should be brief, with more extensive, the required financial statements of the registrant and the depositor, subject to statutory requirements if the depositor technical disclosure located in the SAI. would not have to prepare financial We believe that the requirements we are the rules of the Commission on incorporation by reference.54 The statements in accordance with GAAP adopting will focus prospectus except for use in a registration statement disclosure on the likely tax financial statements would have to be delivered with the SAI in this case.55 filed on Forms N–3, N–4, or N–6. consequences to policyholders of Instruction 1 includes a sentence not purchasing a variable life insurance Two commenters suggested changes to Form N–6 that would require financial policy. Our intent, as we stated in the 56 statements to be delivered to an investor Cf. Instruction to Item 10(a)(2)(iii) of Form N– Proposing Release, is to elicit disclosure 1A (requiring that any information incorporated by only if the investor requested an SAI that is not overly lengthy or technical reference into the SAI must be delivered with the and not if the SAI was delivered for SAI unless the information has been previously and that does not use jargon that is other reasons. These commenters noted delivered in a shareholder report); General difficult for the average or typical Instruction G to Form N–4 (SAI must be available that one state requires an SAI to be investor to understand. The to investor upon request at no charge, and any delivered to any applicant for a variable Commission notes its strong desire that, information or documents incorporated by life insurance policy, and that this state reference into the SAI must be provided along with in revising their prospectuses to comply requirement would result in high the SAI). with Form N–6, variable life insurance printing costs for variable life insurance 57 GAAP is an accounting term that encompasses the conventions, rules, and practices that define registrants pay particular attention to policies sold in that state. their existing tax disclosures to ensure accepted accounting at a particular time issued by The Commission has determined to various authoritative bodies including the Financial that these disclosures do not discourage retain the requirements as proposed. Accounting Standards Board (‘‘FASB’’) and the the use of variable life insurance The financial statements of the American Institute of Certified Public Accountants prospectuses. (‘‘AICPA’’). See Codification of Financial Reporting registrant may be useful to many Policies of the SEC, Section 101. Financial investors and should be included in the statements prepared in accordance with statutory 51 Cf. Instruction 2(f) to Item 6 of Form N–4 SAI directly or by incorporation by requirements, which may vary from state to state, (requiring description of the type of operating reference. Further, the financial differ from those prepared in accordance with expenses for which the registrant is responsible, condition of the depositor is relevant to GAAP. Statutory requirements are the basis of and, if the organizational expenses of the registrant accounting that insurance companies use to comply are to be paid out of its assets, an explanation of with the financial reporting requirements of state how the expenses will be amortized and the period 53 Item 14. If all of the required financial insurance regulations. Regulation S–X permits over which the amortization will occur). statements of the registrant and the depositor are financial statements for mutual life insurance 52 See American Institute of Certified Public not in the prospectus, Item 14 requires the companies and wholly owned stock insurance Accountants’ Accounting Standards Executive prospectus to state where the financial statements company subsidiaries of mutual life insurance Committee, Statement of Position 98–5, ‘‘Reporting may be found, and to briefly explain how investors companies to be prepared in accordance with Costs of Start-up Activities,’’ Apr. 1998 (requiring may obtain any financial statements not in the SAI. statutory requirements, except when the applicable all start-up costs and organizational costs to be 54 General Instruction D.1.(c). registration forms specifically provide otherwise. 17 expensed as incurred). 55 Instruction to Item 15(a)(3)(C). CFR 210.1–01(a); 17 CFR 210.7–02(b). VerDate 11 included in Form N–4, clarifying that obscure or impede understanding of the Portfolio Company performance the depositor’s financial statements information that is required to be adjusted for separate account asset- must be prepared in accordance with included.59 based charges. The commenters who GAAP if the depositor prepares Variable life insurance performance is were concerned about Portfolio financial information in accordance difficult to measure because of the Company performance argued that it with GAAP for use by its parent in complexity of the product and because does not reflect the return a consolidated financial statements in policy charges and values are linked to policyholder might receive as accurately reports under the Securities Exchange individual characteristics of a particular as would measures that reflect separate Act of 1934 (‘‘Exchange Act’’) or investor. In addition, variable life account charges. In contrast, a registration statements.58 This sentence policies provide cash value and death commenter who expressed concern is consistent with the manner in which benefits, and both of these may be about Portfolio Company performance the Commission staff has construed the affected over time, in different ways, by adjusted for separate account asset- existing instructions to Form N–4. policy charges and earnings. The based charges stated that this measure of Ideally, all financial statements for Proposing Release identified the performance, unlike Portfolio Company depositors of variable life insurance following three types of performance performance, has no useful meaning but policies would be presented on a GAAP information that are sometimes can mislead and cause basis because this would promote included in variable life insurance misunderstanding because it reflects uniformity and consistency of registration statements. some, but not all, policy charges. • presentation. We believe, however, that Portfolio Company performance. After considering these comments, the our approach appropriately recognizes This measure is net of investment Commission has determined not to the cost burdens that would be imposed management fees and other Portfolio prohibit the use of any type of if we required GAAP financial Company fees and expenses, but is not performance information in the separate statements in cases where the depositor adjusted for fees and expenses imposed account prospectus. We agree with the is not otherwise required to prepare on the separate account or individual commenters who argued that all of the financial information in accordance policyholders. • categories of performance information with GAAP for use in its own Portfolio Company performance discussed in the Proposing Release may registration statements or periodic adjusted for separate account asset- provide useful information to investors. reports or those of its parent company. based charges. This is a hybrid measure We emphasize, however, that registrants One commenter expressed concern that that is net of investment management are responsible for ensuring that any proposed Form N–6 could require a fees, other Portfolio Company fees and presentation of performance information depositor to include financial expenses, and separate account asset- is not incomplete, inaccurate, or statements in accordance with GAAP if based charges, but is not adjusted for misleading and does not obscure or the depositor prepared GAAP financial charges imposed on individual impede understanding of the policyholders. statements solely for internal purposes, information that is required to be • Illustrations of cash values and for example, in a case where a mutual included in the prospectus. For death benefits. These illustrations are insurer desires to use GAAP financial example, a separate account using statements internally for several years based on actual investment performance of a Portfolio Company and specified performance information that does not before switching to GAAP financial reflect all charges that a policyholder statements in its public filings. We wish assumptions about premiums and the insured individual (e.g., sex, age, rating would incur, directly or indirectly, to clarify that Form N–6 would not should include sufficient information require the use of GAAP when a classification), reflecting all of the fees and charges at the Portfolio Company, about the omitted charges to ensure that depositor prepares GAAP financial the performance presentation is not statements solely for internal purposes. separate account, and individual policyholder levels. misleading. In addition, as we indicated 2. Performance Data (Item 25) Form N–6 does not require disclosure in the Proposing Release, we believe that Portfolio Company performance The Commission is adopting, as of any historical performance information is most appropriately proposed, the requirements that the SAI information. We believe, as we stated in included in the Portfolio Company’s include (i) an explanation of how the the Proposing Release, that, at the prospectus, where it can be considered registrant calculates performance data present time, no method of measuring along with the risks of investing in the used in advertising, including how variable life insurance performance has Portfolio Company. Registrants should charges are reflected in the data, and (ii) been devised that is useful enough that bear this in mind when determining a quotation of performance for each sub- its disclosure should be required. whether it is appropriate to include account for which performance data is Commenters supported this approach. Portfolio Company performance in the advertised. In addition, as proposed, Commenters differed on whether the prospectus for the separate account. Form N–6 will neither require Commission should restrict the forms of disclosure of any historical performance performance information permitted in a 3. Illustrations (Item 26) information nor prohibit the variable life insurance prospectus. Permitted Use of Hypothetical presentation of historical performance Several commenters stated that all of the Illustrations information in a variable life insurance categories of performance information prospectus, provided that the discussed in the Proposing Release may Commenters supported the information is not incomplete, have informational value to investors Commission’s proposal to permit, but inaccurate, or misleading and does not and should be permitted in the not require, registrants to include prospectus, provided that the hypothetical illustrations of a variable 58 This requirement would also apply if the limitations of the method chosen are life insurance policy in either the depositor provides financial information in described. A few commenters expressed prospectus or the SAI, and we are accordance with GAAP to a parent that is a foreign concerns about the presentation of adopting the proposal.60 Hypothetical private issuer for purposes of the parent’s reconciliation to GAAP. See Items 17 and 18 of Portfolio Company performance or illustrations are tabular presentations of Form 20–F (describing requirements for reconciliation to GAAP). 59 General Instruction C.3.(b). 60 Item 26. VerDate 11 numbers that demonstrate how the cash 10%. Additional gross rates of return present, returns for these stocks have value, cash surrender value, and death not greater than 10% would have been exceeded 12% for many 5-, 10-, 15-, and benefit under a policy change over time permitted. As adopted, Form N–6 will 20-year periods.65 As a result, based on (i) assumed gross rates of require registrants to use gross rates of illustrations at a 12% rate, when return of the Portfolio Companies; and return of 0%, 6%, and one other rate not coupled with illustrations at 0% and (ii) deduction of fees and charges for a greater than 12%. Additional gross rates 6% rates, may not be materially hypothetical policyholder (e.g., a 40- of return no greater than 12% may also misleading. We note that each registrant year-old, non-smoking male) with a be used.63 This is consistent with should determine for itself whether the specified policy face amount and current practice in variable life use of a 12% illustration is appropriate premium payment pattern. insurance prospectuses, which typically and not misleading under its particular use gross rates of 0%, 6%, and 12% in facts and circumstances, such as the Requirements for Hypothetical illustrations.64 We proposed to require historical returns of the policy’s Illustrations registrants using illustrations to use Portfolio Companies and the actual and The Commission proposed only two rates of return because, as the expected allocations by policyholders to requirements for any hypothetical number of rates increases, the potential various asset classes. We continue to illustrations included in the prospectus for overwhelming investors with believe, however, that investors might or SAI, in order to place reasonable excessive quantitative information that give undue weight to a 12% illustration, limits on the assumptions that may be is of limited relevance to their particular when coupled only with a 0% used and discourage the presentation of circumstances also increases. We illustration, and we therefore believe misleading illustrations. We are proposed to cap permissible rates at that it is important to require the use of adopting these requirements with 10% because of our concerns that rates a third, intermediate rate. modifications, as discussed below. We above 10% may have a significant Premium Amounts. Proposed Item remind registrants that, in addition to tendency to invite unrealistic investor 26(c) would have required that the complying with these requirements, expectations and that investors might premium amounts used in illustrations registrants remain responsible for give undue weight to a 12% illustration, not be unduly larger or smaller than the ensuring that illustrations are not when coupled with a 0% illustration, actual or expected average policy size. incomplete, inaccurate, or misleading because they might discount a 0% We have modified the reference to and do not, because of their nature, illustration as unrealistically low. ‘‘policy size’’ to clarify that we are quantity, or manner of presentation, A number of commenters referring to premium amount rather obscure or impede understanding of recommended that Form N–6 require than policy face amount.66 information required to be included in registrants using illustrations to use We have also modified the language the prospectus or SAI.61 three rates of return, rather than two, of this Item to address the concern of a Narrative Information. We are arguing that the use of three rates more commenter that averaging of premium clarifying the requirement that a clear effectively demonstrates how variable amounts may result in a premium and concise explanation of the life insurance policies operate and the amount that is significantly different illustrations precede the illustrations. effect that Portfolio Company returns from the premium amount that is Specifically, the explanation should have on cash values and death benefits. representative of the actual policies include a description of the expenses In addition, commenters generally sold. We are providing that premium reflected in the illustrations; a statement recommended that the Commission amounts used in illustrations be that the illustrations are based on permit illustrations with rates as high as representative of the actual or expected assumptions about investment returns 12%, arguing that 12% fairly depicts ‘‘typical’’ premium amount, with and policyholder characteristics; a historical stock market returns. flexibility to base the typical premium description of the circumstances under We have modified our proposal to amount on the average or median which actual results for a particular require registrants to use three gross premium amount or another reasonable policyholder would differ from the rates of return—0%, 6%, and one other basis that results in a typical premium illustrations (e.g., when policyholder rate not greater than 12%. We agree amount that is fairly representative of characteristics, expenses, or investment with commenters that the use of three actual or expected policy sales. returns differ from those illustrated); rates of return may effectively Rating Classification. We are also and whether personalized illustrations demonstrate how a variable life modifying proposed Item 26(d), which are available, and, if so, how they may insurance policy operates. In addition, would have required that illustrations be obtained.62 We note, however, that we are persuaded that illustrations be shown for the rating classification this prescribed disclosure is not using a 12% rate should not be (e.g., nonsmoker, smoker, preferred, intended to be exclusive, and that prohibited, in light of historical stock standard) with the greatest number of registrants should include any market returns. Although historical outstanding policies, to address a additional disclosure concerning the returns on large company stocks have commenter’s concern that this assumptions and limitations of the averaged 10.7% from 1926 to the requirement may result in a rating hypothetical illustrations necessary to ensure that the hypothetical 63 Item 26(g). 65 The estimate that annual returns on large illustrations are not incomplete, 64 In its comment letters on variable life insurance company stocks have averaged 10.7% from 1926 to filings, the Commission staff has objected to rates 2001 was provided to the Commission staff by inaccurate, or misleading. of return greater than 12%. See Pacific Mutual Life Ibbotson Associates, Inc. See also Ibbotson Assumed Rates of Return. The Insurance Company, Division of Investment Associates, Stocks, Bonds, Bills and Inflation Commission proposed to require Management no-action letter (Aug. 31, 1990) Yearbook 25, 27 (2001) (compound annual growth registrants to use gross rates of return of (describing development of staff position regarding rate of 11.0% for index of S&P 500 total returns 0% and one other rate not exceeding use of rates of return in excess of 12%). See also from 1926 to 2000, assuming no transaction costs, NASD Conduct Rules, ‘‘Communications with the full reinvestment of dividends on stocks or coupons Public About Variable Life Insurance and Variable on bonds, and no taxes); id. at 42–49 (showing 61 General Instruction C.3.(b). Annuities,’’ IM–2210–2(b)(5)(A)(ii) (requiring compound annual returns for large company stocks 62 Item 26(a). Disclosure about the availability of variable life insurance illustrations used for and other asset classes for 5-, 10-, 15-, and 20-year personalized illustrations would also be required on advertising and sales literature to use a rate of 0% holding periods). the back cover page of the prospectus. Item 1(b)(1). and any other rates not greater than 12%). 66 Item 26(c). VerDate 11 classification being used that is not computation of a weighted average is taking account of contractual limitations representative. For example, if a policy significantly more complicated than an that require reimbursement or waiver of uses a large number of narrowly drawn arithmetic average, for example, expenses, but only for the period of the rating classifications, the rating requiring adjustments to the method to contractual limitation.68 classification corresponding to the address new variable life insurance Hypothetical Illustrations Based on greatest number of outstanding policies policies and the addition and removal of may fall at one extreme of the range of Portfolio Companies to or from an Historical Rates of Return rating classifications (e.g., the rating existing policy. The Commission requested comment classification for healthy 20-year-old We wish to clarify, however, that on the use of hypothetical illustrations non-smokers) and thus may not be although we are requiring the use of an constructed using historical rates of representative for most purchasers. We arithmetic average of Portfolio Company return for the Portfolio Companies are modifying the Item to provide that fees and expenses in illustrations (‘‘hypothetical historical illustrations’’) if use of the rating classification with included in the prospectus and SAI, we rather than assumed rates of return. the greatest number of outstanding would not object if personalized Some variable life insurance registrants policies is not fairly representative of illustrations are provided to a particular have included these illustrations in policy sales, illustrations should be investor based on a weighted average of their prospectuses, although this shown for a commonly used rating the expenses of the Portfolio Companies practice is not widespread. Proposed classification that is fairly representative in which the investor already invests or Form N–6 did not specifically address of policy sales. expects to invest, provided that the hypothetical historical illustrations, and Portfolio Company Charges and illustrations are not misleading. We we are not modifying Form N–6 in this Expenses. We are adopting as proposed believe that illustrations prepared in regard. the requirement that Portfolio Company this manner may be significantly more Commenters’ views were mixed. One management fees and other Portfolio useful to a particular investor than commenter expressed concern about the Company charges and expenses be personalized illustrations using an use of actual historical performance to reflected using the arithmetic average of arithmetic average of Portfolio Company illustrate hypothetical future values and those charges and expenses for all expenses. argued that, to the extent actual results available Portfolio Companies. The The proposed form would require that are used, illustrations lose much of their average would be based on Portfolio hypothetical illustrations reflect hypothetical nature, despite any Company charges and expenses Portfolio Company charges and disclaimer to the contrary. Another incurred during the most recent fiscal expenses without taking into account commenter noted that using year or any materially greater amount any fee waiver or expense hypothetical historical illustrations in expected to be incurred during the reimbursement arrangements. Two the prospectus would result in current fiscal year.67 A number of commenters recommended that the form extremely long illustrations, adding to commenters opposed the required use of permit insurers to take into account fee the complexity of the prospectus. an arithmetic average, arguing that a waiver or expense reimbursement Several other commenters argued that weighted average would better reflect arrangements where the arrangements the Commission should permit the use the proportionate allocations that are binding either (1) for at least one of hypothetical historical illustrations in investors actually make in a particular year or until the next prospectus update, the prospectus and SAI by registrants product and would therefore serve as a or (2) until the end of the current fiscal who believe they contribute to investor better proxy for the Portfolio Company year. One of these commenters argued understanding of a policy. expenses that a prospective investor that as long as the arrangements are We continue to have a number of might actually pay. Four commenters written commitments for at least one concerns about the use of hypothetical year or until the next prospectus update, recommended that Form N–6 permit the historical illustrations. While they reflect the actual fees and expenses use of either a weighted or an arithmetic hypothetical illustrations that show a that policyholders would experience as average of Portfolio Company expenses, pattern of assumed returns, e.g., 0%, investors in the Portfolio Companies, and three commenters recommended 6%, and 12%, may help investors and therefore illustrations should be that the form require the use of a understand how different rates of return able to reflect these ‘‘capped’’ expenses. weighted average. affect policy performance, historical We disagree with commenters who The other commenter recommended rates of return illustrated in recommended that we permit the use of that whatever expenses are actually hypothetical historical illustrations will either an arithmetic or weighted average used in a particular variable life not follow a pattern and therefore are of Portfolio Company expenses. This prospectus should be used for purposes approach would lead to inconsistency of hypothetical illustrations. not useful to an investor attempting to among illustrations, the opportunity for We have retained the requirement that 68 Under Form N–1A, the staff has permitted ‘‘cherry-picking’’ the method that is hypothetical illustrations be based on mutual funds with fees that are subject to a most favorable from time to time, and Portfolio Company expenses before fee contractual limitation that requires reimbursement the need for complicated rules waiver or expense reimbursement or waiver of expenses to take account of the governing when a change in the selected arrangements. This conforms to the fee reimbursement or waiver in calculating the example required by the fee table of Item 3, but only for the method is permitted. While we believe table in Item 3, which requires duration of the contractual limitation. Funds may that there is some merit to the argument disclosure of Portfolio Company not assume that the reimbursement or waiver will that a weighted average may serve as a expenses before expense reimbursement continue for periods subsequent to the contractual better proxy for the Portfolio Company and fee waiver arrangements. However, limitation period in calculating expenses shown in the example. Cf. Letter from Barry D. Miller, expenses that a ‘‘typical’’ prospective we intend that the staff construe the Associate Director, Division of Investment investor might pay, we note that, for any requirements of Form N–6 governing Management, SEC, to Craig S. Tyle, General particular investor, a weighted average hypothetical illustrations consistent Counsel, Investment Company Institute (Oct. 2, is not necessarily representative of the with the approach it has taken with the 1998) (permitting funds with fees that are subject to a contractual limitation that requires expenses he or she will pay. In addition, expense example of Form N–1A, to reimbursement or waiver to add two lines to the fee permit illustrations to reflect Portfolio table showing the amount of the reimbursement or 67 Item 26(h). Company operating expenses after waiver and total net expenses). VerDate 11 understand how a particular change in provisions make it unlawful to use are not misleading.73 As a result, if an rates of return might affect policy materially misleading sales literature in investor invests or expects to invest in values. In addition, hypothetical connection with the purchase or sale of a single Portfolio Company, it is not per historical illustrations have limited investment company securities. se misleading to use that Portfolio value in presenting past performance A significant number of commenters Company’s fees and charges in because they depend on the particular expressed the view that the Commission personalized illustrations for that hypothetical policyholder, face amount, investor. We remain concerned, should prescribe requirements for and premium payment pattern selected. however, with personalized illustrations personalized illustrations, either in Hypothetical historical illustrations also that use a single Portfolio Company’s Form N–6 or in another rulemaking or tend to invite prospective investors to fees and charges in situations when an assume that the cash values and death interpretive proceeding. These investor does not invest, or expect to benefits presented represent the values commenters argued that mandating invest, exclusively in that Portfolio that they can expect and may be some degree of uniformity would Company, particularly when that misconstrued as projections. Finally, benefit investors, e.g., by facilitating Portfolio Company has low expenses hypothetical historical illustrations can comparisons among different policies. relative to other Portfolio Companies. add undue complexity to the The commenters suggested a range of C. Part C—Other Information— information already presented to approaches, including standards for Exhibits—Actuarial Opinion (Item 27(l)) investors. personalized illustrations that are Nonetheless, we do not believe that it similar to the requirements for We are adopting with modifications is appropriate to prohibit the use of hypothetical prospectus illustrations, as proposed Item 27(l), which requires an hypothetical historical illustrations in well as standards conforming, to the opinion of an actuarial officer of the the prospectus or SAI, provided that extent practicable, to the National depositor if a registrant includes they are not incomplete, inaccurate, or Association of Insurance Commissioners illustrations in the registration misleading and do not, because of their standards for fixed life insurance policy statement. As proposed, the actuarial nature, quantity, or manner of illustrations.72 opinion would have been required to indicate that: (i) The values illustrated presentation, obscure or impede The Commission has determined not are consistent with the provisions of the understanding of information that is to propose standards for personalized 69 policy and the depositor’s required to be included. We caution illustrations at this time. Commenters’ registrants, however, that it is administrative procedures; (ii) the rate views on the appropriate standards incumbent upon them to ensure that structure of the policy, and the varied significantly, and, in some cases, any hypothetical historical illustrations assumptions selected for the were not specific, and we believe that it comply with this standard. illustrations, do not result in an would be inadvisable to delay the illustration of the relationship between Personalized Illustrations benefits of Form N–6 in order to resolve premiums and benefits that is materially Personalized illustrations are differing views with respect to more favorable than for a substantial frequently provided by insurers to personalized illustrations. majority of other prospective prospective variable life insurance In the Proposing Release, we policyholders; and (iii) the illustrations investors at the point of sale. These expressed our view that it may be are based on a commonly used rating illustrations reflect the investor’s misleading to market a variable life classification and premium amounts particular circumstances, including age, insurance policy based on illustrations and ages appropriate for the markets in sex, risk classification, proposed face that reflect assumed rates of return and which the policy is sold. amount, and expected premium the fees and charges of a single Portfolio Several commenters objected to the payment pattern. Proposed Form N–6 Company when those fees and charges second prong of the actuarial opinion did not address personalized are less than the arithmetic average of requirement, arguing that it would illustrations because these illustrations fees and charges for all available require difficult judgments for which are customized for individual investors, Portfolio Companies. For that reason, there are no established standards. delivered at the point of sale, and are we noted our concern about the practice Commenters also noted that the not susceptible to inclusion in a of using a single Portfolio Company’s requirement that the relationship prospectus. Form N–6, as adopted, fees and charges in personalized between premiums and benefits not be follows the approach of the proposal, illustrations. As described above, materially more favorable than for a except that, at the suggestion of several however, we would not object if ‘‘substantial majority’’ of other commenters, we have added a personalized illustrations are provided prospective policyholders could in requirement that registrants who make to a particular investor based on a some cases conflict with other personalized illustrations available weighted average of the expenses of the requirements of proposed Form N–6 disclose that fact and provide a toll-free Portfolio Companies in which the regarding hypothetical illustrations. telephone number for requesting We agree with commenters that investor already invests or expects to personalized illustrations.70 As a result, modifications are required to our invest, provided that the illustrations insurers may use personalized proposal. Therefore, we are replacing illustrations in sales literature subject to the second prong of the proposed Act of 1934 [15 U.S.C. 78j(b)] and Rule 10b–5 actuarial opinion requirement with a the antifraud provisions of the federal thereunder [17 CFR 240.10b–5]; Rule 156 under the securities laws and rule 156 under the Securities Act [17 CFR 230.156]; Section 34(b) of requirement to indicate that the policy Securities Act, as long as the sales the Investment Company Act [15 U.S.C. 80a–33(b)]; has not been designed, and the literature is preceded or accompanied Section 2(a)(10)(a) of the Securities Act [15 U.S.C. assumptions for the illustrations by the prospectus.71 The antifraud 77b(a)(10)(a)]. (including sex, age, rating classification, 72 Cf. NASD Conduct Rules, ‘‘Communications with the Public About Variable Life Insurance and and premium amount and payment 69 General Instruction C.3.(b). Variable Annuities,’’ IM–2210–2(b)(5)(B) (requiring 70 Item 1(b)(1); Item 26(a). personalized illustrations in sales literature to 73 See supra Section II.B.3, ‘‘Permitted Use of 71 Section 17(a) of the Securities Act [15 U.S.C. follow all of the standards set forth for hypothetical Hypothetical Illustrations; Portfolio Company 77q(a)]; Section 10(b) of the Securities Exchange illustrations using assumed rates of return). Charges and Expenses.’’ VerDate 11 schedule) have not been selected, to in Form N–1A for mutual funds that Release, the Commission is providing make the relationship between offer their shares as investment options for a transition period after the effective premiums and benefits, as shown in the for variable annuity contracts if the date of Form N–6 that gives registrants illustrations, appear to be materially exclusion is eliminated for mutual sufficient time to update their more favorable than for any other funds that offer their shares as prospectuses or to prepare new prospective purchaser with different investment options for variable life registration statements under the new assumptions.74 insurance policies.80 Form N–6 requirements.82 After the The only commenter to address the transition period, separate accounts that D. Technical Rule Amendments issue of whether disclosure of Portfolio are registered as unit investment trusts When we proposed Form N–6, we Company expenses should be required and that offer variable life insurance also proposed several technical rule in the Portfolio Company prospectus policies will be permitted to use Forms amendments to accommodate Form N– supported a requirement that a mutual N–8B–2 and S–6 only if they no longer 6. We are adopting these amendments as fund offering its shares as investment offer their policies to new purchasers. proposed. options to variable life insurance The Commission, however, encourages The Commission is amending rules policies include a fee table in its registrants that are no longer offering 134b, 430, 430A, 495, 496, and 497 prospectus. The commenter agreed that policies to new purchasers to convert to under the Securities Act and rules 8b– the Portfolio Company prospectus is the Form N–6 since this format may be 11 and 8b–12 under the Investment appropriate location for disclosure of beneficial to both registrants and Company Act to add Form N–6 to the Portfolio Company operating expenses, continuing investors. list of forms referenced in those rules.75 though the commenter also suggested All new registration statements, and We also are adopting new rules that the Form N–6 fee table should not post-effective amendments that are prescribing the use of Form N–6 to include any Portfolio Company annual updates to effective registration register insurance company separate operating expenses. statements (except for separate account accounts that are registered as unit As proposed, we are amending Form registration statements that are no investment trusts and that offer variable N–1A to eliminate the existing longer used to offer variable life life insurance policies under the exclusion from the fee table requirement insurance policies to new purchasers) Investment Company Act and to register for mutual funds that offer their shares filed on or after December 1, 2002, must their securities under the Securities as investment options for variable life comply with Form N–6. The final Act.76 Finally, we are amending Form insurance policies. This will ensure that compliance date for filing amendments N–8B–2 to clarify that Form N–8B–2 is variable life investors have access to to effective registration statements to not the proper form for Investment complete information about Portfolio conform with Form N–6 is December 1, Company Act registration of insurance Company fees and expenses. In 2003. A registrant may, at its option, company separate accounts registered as addition, to foster consistent comply with the requirements of Form unit investment trusts.77 presentation of fund expenses for N–6 at any time after the effective date, variable annuities and variable life which the Commission is specifying as E. Adoption of Amendment to Form N– insurance, we are eliminating the June 1, 2002.83 Registrants on Form N– 1A exclusion from the fee table requirement 1A must comply with the amendment to Currently, Form N–1A does not for mutual funds that offer their shares Form N–1A with respect to all new require a mutual fund that offers its as investment options for variable registration statements, and post- 81 shares exclusively as investment annuity contracts. effective amendments that are annual options for variable annuity contracts F. Effective Dates and Transition Period updates to effective registration and variable life insurance policies to statements, filed on or after September Form N–6 will eventually replace include the fee table in its prospectus.78 1, 2002. Forms N–8B–2 and S–6 for insurance In the Proposing Release, we stated that Registrants filing Form N–6 for company separate accounts that are purposes of updating their existing if Form N–6, as adopted, did not require registered as unit investment trusts and registration statements on Forms N–8B– separate disclosure of the operating that offer variable life insurance 2 and S–6 will be deemed to be filing expenses of each Portfolio Company, we policies. As discussed in the Proposing would amend Form N–1A to require the amendments to Form N–6 and should indicate this on the facing sheet. These prospectus of a mutual fund that offers 80 Id. its shares as investment options for 81 One commenter encouraged the Commission to post-effective amendments should be variable life insurance policies to make Portfolio Company expense disclosure filed under Securities Act rule 485(a) include a fee table.79 We also requested requirements in Forms N–6 and N–4 consistent, rather than rule 485(b).84 Form N–6 will arguing that a requirement to report Portfolio comment on whether to eliminate the Company expenses for variable life prospectuses 82 See Form N–6 Proposing Release, supra note 9, exclusion from the fee table requirement differently than for variable annuity prospectuses 63 FR at 14001. would complicate the process of preparing 83 During the transition period, a separate account 74 Item 27(l)(2). registration statements without improving the that is using Form N–6 should include in Item 3 75 17 CFR 230.134b, 230.430, 230.430A, 230.495, quality of disclosure. In a companion release, we are proposing amendments to generally conform the a fee table for any Portfolio Company whose Form 230.496, and 230.497; 17 CFR 270.8b–11 and N–1A has not been updated to include a fee table 270.8b–12. format and instructions for the variable annuity fee table to that in Form N–6. See Form N–4 Proposing as required by the amendment to Form N–1A. 76 17 CFR 239.17c; 17 CFR 274.11d. Release, supra note 1. In the Form N–4 Proposing 84 A post-effective amendment may only be filed 77 See amendments to Form N–8B–2 and 17 CFR Release, we noted that if we adopt changes to the under rule 485(b) under the Securities Act [17 CFR 274.12 (prescribing Form N–8B–2). The Form N–4 proposals in response to comments, we 230.485(b)] if it is filed for one or more specified Commission did not propose and is not adopting intend to adopt conforming changes to Form N–6. purposes, including to make non-material changes amendments to Form S–6 or 17 CFR 239.16 We therefore requested that commenters on the to the registration statement. A post-effective (prescribing Form S–6) because the form and the proposed amendments to the fee table of Form N– amendment filed for any purpose not specified in rule state that Form S–6 is to be used to register the 4 address how their comments would apply to the rule 485(b) must be filed pursuant to rule 485(a) securities of unit investment trusts registered on fee table of Form N–6, and whether a different under the Securities Act [17 CFR 230.485(a)]. A Form N–8B–2. approach to any aspect of fee and expense post-effective amendment filed under rule 485(b) 78 Item 3 of Form N–1A. disclosure is warranted in Form N–6 because of the may become effective immediately upon filing, 79 Form N–6 Proposing Release, supra note 9, 63 differences between variable life insurance and while a post-effective amendment filed under rule FR at 13994. variable annuities. 485(a) generally becomes effective either 60 days or VerDate 11 require registration statement disclosure issuing variable life insurance policies both the separate account unit that is revised from that required by are organized as unit investment trusts. investment trust and the Portfolio Forms N–8B–2 and S–6 and, in some One commenter noted that several Companies. Portfolio Companies, as cases, such as the fee table information contracts registered on Form N–1 are mutual funds, use Form N–1A to required by Item 3, completely new. still in existence, but not actively register under the Investment Company Because post-effective amendments marketed. The commenter Act and to register their shares under filed to comply with the requirements of recommended that the form be retained the Securities Act. Variable life separate Form N–6 will involve a number of because requiring these registrants to accounts, as unit investment trusts, material changes to disclosure that do convert to a new format would be register under the Investment Company not fall within the scope of rule 485(b), unnecessarily expensive and Act on Form N–8B–2 and register their registrants should file these unproductive. The Commission has securities under the Securities Act on amendments under rule 485(a).85 decided to retain the Form N–1 because Form S–6. However, we would not object if of this continuing need for it. Forms N–8B–2 and S–6 were designed for non-separate account unit existing Portfolio Companies file their III. Cost/Benefit Analysis first annual update complying with the investment trusts and were adopted amendment to Form N–1A pursuant to The Commission is sensitive to the before the establishment of the first rule 485(b), provided that the post- costs and benefits of its rules. In the separate account to fund variable life effective amendment otherwise meets Proposing Release, we requested insurance policies. While much of their the conditions for immediate comments and empirical data regarding required disclosure is useful, the forms effectiveness under the rule. the costs and benefits of proposed Form request some information that is not One commenter requested that, N–6. Many commenters stated that the typically of consequence to a buyer of adoption of Form N–6 would because Form N–6 will include variable life insurance. More significantly benefit the variable life financial statements in an SAI to be importantly, many matters that would insurance industry, by reducing printing made available to investors upon be significant to a buyer of a variable life and postage costs for registrants issuing request, the Commission permit existing insurance policy are not addressed at all variable life insurance products, and registrants to make financial statements by the forms. some commenters noted that these available only upon request while using To address these shortcomings, the savings may be passed on to investors. Forms N–8B–2 and S–6 during the Commission proposed Form N–6. None of these commenters, however, transition period. We have determined Unlike current Forms S–6 and N–8B–2, provided specific data quantifying the not to adopt the commenter’s Form N–6 is specifically tailored to costs or benefits of the proposed form. suggestion. We believe that Form N–6, variable life insurance. Form N–6 will taken as a whole, represents a dramatic A. Background streamline variable life prospectus improvement in the disclosure that disclosure by adopting a two-part format Variable life insurance is similar to consisting of a simplified prospectus, investors in variable life insurance traditional life insurance, except that policies receive. Therefore, we believe designed to contain essential the cash value and/or death benefit vary information that assists an investor in that it would not generally be based on the investment performance of appropriate for a post-effective making an investment decision, and a the assets in which the premium statement of additional information, amendment to comply with some, but payments are invested. Premium not all, of the requirements of the form. containing more extensive information payments under a variable life and detailed discussion of matters G. Form N–1 insurance policy, unlike a traditional included in the prospectus that life insurance policy, are invested in an investors could obtain upon request. The Commission requested comment insurance company separate account, on whether there is any continuing need which generally is not subject to state B. Benefits for Form N–1 or whether it could be law investment restrictions. A variable 1. Reduced Printing and Postage Costs rescinded. The form currently would be life policyholder typically is offered a used only by an open-end management variety of investment options ( e.g., As described above, Form N–6 will investment company that is a separate equity, bond, and money market mutual employ a two-part disclosure format account of an insurance company funds). Death benefits and cash values consisting of a simplified prospectus, offering variable life insurance policies. are directly related to performance of and a statement of additional Today, virtually all separate accounts the separate account, although typically information, or SAI. As several there is a guaranteed minimum death commenters on the Proposing Release 75 days after filing, unless the effective date is benefit. stated, this two-part disclosure format accelerated by the Commission. A separate account funding a variable would reduce needless printing and 85 See N–4 Adopting Release, supra note 8, 50 FR postage expenses significantly.86 These at 26156 n.51 (variable annuity registrants life insurance policy most commonly is converting to Form N–3 or Form N–4 required to registered as a unit investment trust savings could be substantial, because file post-effective amendment under rule 485(a)); under the Investment Company Act. many variable life insurance issuers Letter from Barry D. Miller, Associate Director, Separate accounts registered as unit send an updated prospectus to existing Division of Investment Management, to Craig S. investment trusts are divided into sub- policyholders each year. Tyle, Esq., General Counsel, Investment Company In particular, under Form N–6 the Institute (May 19, 1998) (post-effective amendments accounts, each of which invests in a to comply with revised Form N–1A should be filed different Portfolio Company. Both financial statement disclosure of the under rule 485(a)). separate account unit investment trusts The Commission encourages registrants to request 86 See comment letters from John Hancock selective review of their filings, where the filing and the Portfolio Companies in which Mutual Life Insurance Company (June 30, 1998), contains disclosure that is not substantially they invest are registered as investment The Equitable Life Assurance Society of the United different from the disclosure contained in prior companies under the Investment States (July 10, 1998), ReliaStar Financial Corp. filings reviewed by the staff. See Investment Company Act, and their securities are (July 16, 1998), and American Council of Life Company Act Release No. 13768 (Feb. 15, 1984) [49 Insurance (Aug. 10, 1998). The comment letters are FR 6708]. Selective review enables the staff to registered under the Securities Act. available for public inspection and copying at the concentrate its review on those portions of the filing Investors in variable life insurance Commission’s Public Reference Room in File No. that are changed. policies receive the prospectuses for S7–9–98. VerDate 11 registrant separate account and the saved $61,254 overall in the printing registration forms, such as Form N–4 insurance company depositor, which is costs of its 2001 variable life insurance and Form N–1A, we estimate that fewer currently required to be included in the prospectuses, if it had been able to than 1% of investors are likely to prospectus for the variable life exclude the financial statements from its request an SAI. Currently, at least one insurance policy, would be presented in prospectuses.89 Therefore, the state requests that issuers agree to the newly created SAI or in Part C of the Commission believes that the cost deliver an SAI to applicants for a registration statement, and would savings to issuers resulting from variable contract.90 generally only be provided to investors exclusion of financial statements from 2. Reduced Filing Costs upon request. The financial statements the Form N–6 prospectus could be contained in variable life insurance significant. Further, at least some of The adoption of Form N–6 will allow prospectuses typically are between 30 these cost savings could be passed on to variable life insurance registrants to use and 80 pages in length, and the printing investors. a single integrated form for Investment and postage costs attributable to these We note that these cost savings may Company Act and Securities Act financial statements may range from be reduced if investors in a variable life registration, eliminating unnecessary $5,400 to $323,000, depending on the insurance policy request copies of the paperwork and duplicative reporting. number of copies printed and the length SAI, which will contain many of the As a result of this simplified registration of the financial statements.87 Therefore, financial statements currently required process, the Commission estimates that based on an estimate of 200 variable life in the Form S–6 prospectus, or if the annual net cost savings to issuers of insurance policies registered with the registrants must deliver copies of the variable life insurance policies for Commission, the cost savings resulting SAI to variable life investors for other preparing and filing initial registration from the exclusion of financial reasons, such as to meet state regulatory statements and post-effective statements from variable life insurance requirements. Some insurers may also amendments on Form N–6 will be prospectuses could range from need to incur costs in setting up and $2,141,288. The annual costs of filing $1,080,000 to $64,600,000, although we maintaining a system for processing initial registration statements and post- believe that an estimate at the lower end requests for an SAI, including a toll-free effective amendments on Forms S–6, N– of this range is more likely.88 One telephone number. However, based on 8B–2, and N–6 are summarized in the insurance company provided the staff the staff’s discussions with issuers tables below, and the discussion that with an estimate that it would have regarding other investment company follows: COST OF INITIAL FILINGS ON FORMS S–6, N–8B–2, AND N–6 Form N–6, net Form S–6 Form N–8B–2 Form N–6 cost savings Number of filings ...... 59 24 59 ...... Hours per filing ...... 850 44 800 ...... Total hours ...... 50,150 1056 47,200 ...... Internal cost per filing ...... $71,400 $3,696 $67,200 7,896 Total internal costs ...... 4,212,600 88,704 3,964,800 336,504 External cost per filing ...... 30,000 0 20,000 10,000 Total external cost ...... 1,770,000 0 1,180,000 590,000 Total costs per filing ...... 101,400 3,696 87,200 17,896 Total filing costs ...... 5,982,600 88,704 5,144,800 926,504 COST OF FILING POST-EFFECTIVE AMENDMENTS ON FORMS S–6, N–8B–2, AND N–6 Form S–6 Form S–6 Form N–6 Form N–6 (post-effective (post-effective (post-effective (post-effective amendments amendments Form N–8B–2 amendments amendments Form N–6, Net filed as annual filed for other filed as annual filed for other cost savings updates) reasons) updates reasons) Number of filings ...... 200 300 11 200 300 ...... Hours per filing ...... 100 10 16 100 10 Total hours ...... 20,000 3000 176 20,000 3000 ...... 87 These estimates are based on information effective amendments filed on Form S–6 in 2000 90 According to a representative of an insurance supplied to the Commission staff by three life and 2001 by separate accounts offering variable life industry group, California currently asks registrants insurance companies. insurance policies. to agree to provide an SAI to all applicants for a 88 The estimate of the number of variable life 89 This insurer notes that it currently maintains variable annuity contract in order to obtain insurance policies is based on the Commission’s 20 variable life prospectuses, which in 2001 expedited state approval of the contract. analysis of data from its EDGAR system on the included 1007 pages of depositor and separate number of initial registration statements and post- account financial statements. VerDate 11 COST OF FILING POST-EFFECTIVE AMENDMENTS ON FORMS S–6, N–8B–2, AND N–6—Continued Form S–6 Form S–6 Form N–6 Form N–6 (post-effective (post-effective (post-effective (post-effective amendments amendments Form N–8B–2 amendments amendments Form N–6, Net filed as annual filed for other filed as annual filed for other cost savings updates) reasons) updates reasons) Internal costs per filing ...... $8,400 $840 $1344 $8,400 $840 $1344 Total internal costs ...... 1,680,000 252,000 14,784 1,680,000 252,000 14,784 External cost per filing ...... 13,500 2,000 0 7,500 2,000 6,000 Total external costs ...... 2,700,000 600,000 0 1,500,000 600,000 1,200,000 Total costs per filing ...... 21,900 2,840 1344 15,900 2,840 7,344 Total filing costs ...... 4,380,000 852,000 14,784 3,180,000 852,000 1,214,784 Form S6 burden is attributable to the fact that the fact that the required inclusion of The Commission estimates that 59 Form S–6, on balance, requires more financial statements in the Form S–6 initial registration statements and 500 information to be included in an initial prospectus results in significantly post-effective amendments are filed by registration statement than would Form higher costs for typesetting and 93 variable life insurance policies on Form N–6. Thus, we estimate internal costs EDGARization associated with filing a S–6 annually.91 We estimate the hour involved in preparing an initial registration statement.95 Based on an burden of an initial registration registration statement on Form S–6, estimate of internal costs of $71,400 and statement filed on Form S–6 at 850 based on a weighted average hourly external costs of $30,000 per initial hours, which is similar to, but slightly wage rate of $84, at $71,400 (850 hours registration statement on Form S–6, × 94 greater than, the hour burden of an $84). therefore, we estimate the total cost to initial registration statement filed on We estimate external costs associated a variable life insurance issuer of Form N–6, which we estimate to be 800 with completing an initial registration preparing and filing an initial hours.92 The difference in this hour statement on Form S–6 to be $30,000, registration statement on Form S–6 to be compared to $20,000 on Form N–6. $101,400. Thus, total annual costs to 91 These estimates are based on the staff’s analysis These external costs include all costs variable life insurance issuers of filing of data from the EDGAR system on the number of associated with filing on Form S–6 other initial registration statements on Form initial registration statements and post-effective than wages, salaries, and fees paid for S–6 are estimated to be $5,982,600 amendments filed on Form S–6 in 2000 by separate the hour burden. These costs may × accounts offering variable life insurance policies. ($101,400 59). The numbers of initial registration statements and include, for example, the cost of There are also costs associated with post-effective amendments filed on Form S–6 have preparing a filing for the EDGAR system filing post-effective amendments on been consistent in recent years. Based on this data, (‘‘EDGARization’’), typesetting of the we estimate that there are approximately 200 Form S–6. The Commission estimates, registered variable life insurance policies that file prospectus (which is typically done based on the numbers of filings received at least one post-effective amendment per year to before the prospectus is filed on on EDGAR in 2001, that there are update their financial statements. In addition to EDGAR), and the cost of outside counsel approximately 200 variable life filing at least one annual update by post-effective and independent auditors in connection amendment, these variable life insurance policies insurance policies registered with the also file an estimated 300 other post-effective with filing on Form S–6. The difference Commission that file at least one post- amendments annually on Form S–6. These 300 in external costs between Form S–6 and effective amendment per year to update other post-effective amendments are generally filed Form N–6 is attributable primarily to pursuant to Securities Act rule 485(b) to make non- their financial statements. These post- material changes to the registration statement, and effective amendments may be filed are generally more limited and much simpler to and cost of filing a variable life insurance policy on pursuant to Securities Act rule 485(a) or prepare than post-effective amendments filed for Form S–6 are much greater than for other unit investment trusts, largely because of the complexity rule 485(b). In addition to filing at least the purpose of annual updates. one post-effective amendment annually 92 Form N–6 Proposing Release, supra note 9, 63 of the product. FR at 14002. The hour burden estimate of 800 hours 93 For example, Form S–6 requires interim to update their financial statements, the for Form N–6 is based on the hour burden estimate financial statements to be included in a registration Commission estimates that these for similar investment company registration forms, statement in circumstances where they would not variable life insurance policies also file in particular Form N–1A, which are of similar be required by Form N–6; see Instruction 3 to Item length and complexity. See Investment Company 24. an estimated 300 other post-effective Act Release No. 24082 (Oct. 14, 1999) [64 FR 59826, 94 The Commission’s estimate concerning the amendments annually on Form S–6. 59854 nn. 293–294 (Nov. 3, 1999)] (estimating PRA weighted average wage rate to prepare Forms S–6, These 300 other post-effective hour burden per portfolio at 800 hours for an initial N–8B–2, and N–6 is based on salary information for amendments are generally filed filing on Form N–1A, and 100 hours for a post- the securities industry compiled by the Securities effective amendment on Form N–1A). Industry Association, and on consultation with pursuant to Securities Act rule 485(b) to The Commission has estimated the average hour industry representatives regarding the percentage of make non-material changes to the burden of preparing Form S–6, for purposes of the time required by both professional and clerical staff registration statement, and are generally Paperwork Reduction Act, to be 35 hours per unit to prepare these forms. See Securities Industry more limited and much simpler to investment trust. See Submission for OMB Review; Association, Report on Management & Professional Comment Request (Extension of Form S–6) (Nov. Earnings in the Securities Industry—2000 (Sept. 30, 1998) [63 FR 67152 (Dec. 4, 1998)]. However, 2000). The weighted average hourly wage rate of 95 The estimates of these external costs, which are the vast majority of investment companies filing on $84 per hour includes overhead costs and assumes distinct from the printing and postage costs Form S–6 are not unit investment trusts offering that at least 80% of the total time required to described above, are based on information supplied variable life insurance policies. See id. (estimating prepare Form N–6 would be incurred by attorneys to the staff by several life insurance companies, in that ‘‘[e]ach year approximately 3,600 investment and accountants, and any remaining time would be light of their experience in filing on Forms S–6 and companies file a Form S–6’’). The hourly burden incurred by paralegal staff. N–4. VerDate 11 prepare than post-effective amendments the requirement that variable life update is $2,840.102 The total annual filed as annual updates. insurance separate accounts file on cost to issuers of variable life insurance We estimate that the cost of preparing Form N–8B–2 results in an annual cost policies filing on Form N–6 is therefore and filing a post-effective amendment to to registrants of approximately $103,488 estimated to be $9,176,800 ((59 x a previously effective registration ((24 x $3,696) + (11 x $1,344)). $87,200) + (200 x $15,900) + (300 x statement on Form S–6 for the purpose $2,840)). of an annual update is $21,900, which Form N–6 Thus, we estimate an annual net reflects internal costs of $8,400 (100 The Commission estimates that savings in filing costs to issuers of hours × $84) plus external costs of approximately 59 initial registration variable life insurance policies of $13,500. While the estimated internal statements and 500 post-effective approximately $2,141,288 (total annual costs of filing an annual update on Form amendments will be filed on Form N– costs of $9,176,800 associated with S–6 are the same as those for Form N– 6 annually.99 We estimate that the cost filing on Form N–6 compared to total 6, the estimated external costs of of preparing and filing an initial annual costs of $11,318,088 associated $13,500 are significantly higher than the registration statement on Form N–6 will with filing on Forms S–6 and N–8B–2). comparable $7,500 costs for annual be $87,200, based on an estimate of 800 3. Enhanced Disclosure Information updates on Form N–6, largely because of hours and $20,000 in external costs per higher costs for typesetting and initial registration statement, as Form N–6 will enhance the disclosure EDGARization resulting from the described above.100 In addition, we provided to investors about variable life inclusion of financial statements in the estimate that the cost of preparing and insurance policies in several respects: • Tailored Registration Form. Form Form S–6 prospectus. Thus, the total filing a post-effective amendment to a N–6 will eliminate requirements in annual cost to variable life insurance previously effective registration Forms S–6 and N–8B–2 that are not issuers of filing post-effective statement for the purpose of an annual relevant to variable life insurance. Form amendments on Form S–6 for the update is $15,900, based on an estimate N–6 also will include items that are purpose of annual updates is $4,380,000 of 100 hours and $7,500 in external specifically addressed to variable life ($21,900 × 200 filings).96 costs per annual update post-effective insurance products, such as We estimate the cost of preparing and amendment, as described above.101 The descriptions of contractual provisions filing a post-effective amendment on estimated cost of preparing and filing a relating to premiums, death benefits, Form S–6 for a purpose other than an post-effective amendment on Form N–6 cash values, surrenders and annual update to be $2,840, which for a purpose other than an annual withdrawals, and loans.103 reflects internal costs of $840 (10 hours • × $84) plus other external costs of Plain English. The Commission’s prepare an initial registration statement on Form N– plain English rule will apply to the front $2,000.97 These estimated costs are the 8B–2 (44 hours) by the weighted average hourly same as those for filing such an wage ($84). The cost estimate for a post-effective and back cover pages and the risk/ amendment on Form N–6. amendment on Form N–8B–2 is calculated by benefit summary in the variable life Thus, we estimate that the multiplying the estimated number of hours required insurance prospectus.104 This should to prepare a post-effective amendment to Form N– result in better, clearer disclosure to requirement that variable life insurance 8B–2 (16 hours) by the weighted average hourly investors. separate accounts file on Form S–6 wage ($84). See Proposed Collection; Comment • results in an annual cost to registrants Request (Extension of Form N–8B–2) (May 17, Reducing Complex and Lengthy of approximately $11,214,600 ((59 × 2001) [66 FR 28764 (May 24, 2001)] (estimating 44 Prospectus Disclosure. Form N–6 will × × hours for initial registration statement on Form N– streamline variable life prospectus $101,400) + (200 $21,900) + (300 8B–2 and 16 hours for post-effective amendment on $2,840)). Form N–8B–2). disclosure by adopting a two-part format 99 These estimates are based on the staff’s analysis consisting of a simplified prospectus, Form N–8B–2 of data from the EDGAR system on the number of designed to contain essential The Commission estimates that initial registration statements and post-effective information that assists an investor in amendments filed on Form S–6 in 2000 by separate making an investment decision, and an variable life insurance separate accounts accounts offering variable life insurance policies. file 24 initial registration statements and The numbers of initial registration statements and SAI containing more extensive 11 post-effective amendments on Form post-effective amendments filed on Form S–6 have information and detailed discussion of N–8B–2 annually. The current estimated been consistent in recent years. Based on this data, matters included in the prospectus that we estimate that there are approximately 200 cost of preparing an initial registration investors could obtain upon request. registered variable life insurance policies that file • statement on Form N–8B–2 is $3,696, at least one post-effective amendment per year to Standardized Fee Information. and the estimated cost of preparing each update their financial statements. In addition to Form N–6 will require variable life post-effective amendment on Form N– filing at least one annual update by post-effective insurance registrants to provide a 98 amendment, these variable life insurance policies uniform, tabular presentation of fees 8B–2 is $1,344. Thus, we estimate that will also file an estimated 300 other post-effective amendments annually on Form N–6. We expect that and charges, in order to improve the 96 The cost estimate for preparing and filing a these 300 other post-effective amendments will post-effective amendment filed as an annual update generally be filed pursuant to Securities Act rule 102 The cost estimate for a post-effective on Form S–6 was calculated by multiplying the 485(b) to make non-material changes to the amendment filed on Form N–6 for a purpose other estimated number of hours required to prepare this registration statement, and will generally be more than an annual update is calculated by multiplying type of post-effective amendment on Form S–6 (100 limited and much simpler to prepare than post- the estimated number of hours to prepare the post- hours) by the weighted average hourly wage ($84), effective amendments filed for the purpose of effective amendment (10 hours) by the weighted and adding other costs associated with completing annual updates. average hourly wage ($84) and adding other costs a post-effective amendment of $13,500. 100 See Form N–6 Proposing Release, supra note associated with completing the post-effective 97 The cost estimate for an additional post- 9, 63 FR at 14002 (estimating burden of preparing amendment of $2,000. We estimate that the hours effective amendment filed on Form S–6 is initial registration statement on Form N–6 at 800 and cost necessary to prepare a post-effective calculated by multiplying the estimated number of hours and $20,000 in additional costs). amendment for this purpose on Form N–6 will be hours to prepare the post-effective amendment (10 101 See Form N–6 Proposing Release, supra note the same as those needed to prepare this type of hours) by the weighted average hourly wage ($84) 9, 63 FR at 14002 (estimating that 200 separate post-effective amendment on Form S–6. and adding other costs associated with completing accounts offering variable life insurance policies 103 Items 7 (premiums), 8 (death benefits and cash the post-effective amendment of $2,000. would file annual post-effective amendments on values), 9 (surrenders and withdrawals), and 10 98 The cost estimate for an initial registration Form N–6, at an hour burden of 100 hours per post- (loans). statement on Form N–8B–2 is calculated by effective amendment and cost of $7,110,500 per 104 Rule 421(d) under the Securities Act [17 CFR multiplying the estimated number of hours to post-effective amendment); see also note 110 infra. 230.421(d)]. VerDate 11 disclosure to investors of the often Third, because Form N–6, unlike already required by existing registration complex charges associated with Forms S–6 and N–8B–2, will require forms. Further, Form N–6 has been the variable life insurance policies and disclosure specifically tailored to subject of extensive discussion within increase the comparability of charges variable insurance policies, the the variable life insurance industry, and among policies. adoption of Form N–6 may permit the many industry participants are already This improved disclosure of the Commission staff who review variable generally familiar with its requirements. features of variable life insurance life insurance filings on Form S–6 to Therefore, we expect that this one-time policies that will result from the review these filings more quickly and cost will be significant but limited. adoption of Form N–6 will provide efficiently, and thus to provide investor Because we expect that in each several important benefits. First, protection more effectively. insurance company issuing variable life because of improved disclosure, In connection with the adoption of insurance policies, several lawyers and investors will be more informed about Form N–6, the Commission is also other supervisory professionals will the features of different policies, and amending Form N–1A, the registration require several hours of training in the will be able to spend less time searching form for open-end management disclosure requirements of Form N–6, for a variable life insurance contract that investment companies, by removing the we estimate that this cost will be is best suited to their particular needs. current exclusion from the fee table $20,000 for each variable life insurance For example, an investor who is requirement of Form N–1A for funds policy that is currently registered on interested in finding a variable life that offer their shares exclusively as Form S–6 and is actively being sold. insurance policy with a particular set of investment options for variable annuity Based on an estimate of 200 variable life features at the lowest cost may be able contracts and variable life insurance insurance policies that are currently to do so more easily, because the Form policies, and requiring that these funds registered on Form S–6, we estimate N–6 prospectus requires prominent include a fee table in their prospectuses. these one-time costs attributable to the disclosure of the risks and benefits of This amendment is being made because adoption of Form N–6 at $4,000,000 the policy, and a standardized table of the fee table in the Form N–6 prospectus (200 × $20,000). the fees and charges assessed by the will allow variable life registrants to Further, because Form N–6 will policy. In addition, the improved disclose the range of expenses for all require an insurer issuing a variable life disclosure required by Form N–6 will Portfolio Companies offered through a insurance policy to deliver an SAI to promote competition among issuers of variable life insurance policy in the investors upon request, and to maintain variable life insurance policies as they variable life prospectus, rather than a toll-free telephone number for seek to attract these more informed having to separately state the fees and investors to use in requesting the SAI, investors. Thus, improved disclosure charges of each Portfolio Company. This some insurers may need to incur both will result in more efficient allocation of amendment to Form N–1A will ensure fixed and variable costs in setting up investors’ assets among competing that variable life insurance investors and maintaining a system for processing 106 variable life insurance policies, and also continue to have access to complete these requests. However, because vis-a`-vis other, competing types of information about Portfolio Company only a small percentage of investors are financial products. This beneficial effect fees and expenses. Further, because expected to request an SAI, these costs may be somewhat limited, however, by currently the requirements for may be limited. In addition, because the extent to which investors do not rely disclosure of Portfolio Company fees Form N–6 will allow financial on a prospectus in choosing whether to and expenses in variable annuity and statements to be included in the SAI purchase a variable life insurance variable life prospectuses vary, to a rather than the prospectus, insurers may policy, but instead may rely on brokers limited extent, from the disclosure realize savings on fixed costs associated and other investment professionals in requirements of Form N–1A, the with typesetting the prospectus, determining whether to purchase a amendment will produce consistent regardless of the numbers of investors variable life insurance policy. In some disclosure of fees and expenses by who request an SAI. Portfolio Companies that offer their In addition to costs imposed by the cases, investment professionals may use shares exclusively through separate adoption of Form N–6, the amendments the improved disclosure in the accounts and by mutual funds that sell the Commission is adopting to Form N– prospectus of Form N–6 to make more shares directly to the public. This more 1A will impose certain costs on funds informed sales recommendations to consistent disclosure may result in more registered on Form N–1A that offer their investors. efficient allocation of assets among shares exclusively as investment Second, the improved disclosure variable insurance products and mutual options for variable annuity contracts promoted by Form N–6 may promote funds. and variable life insurance policies. The competition among issuers of variable Commission estimates that 163 post- life insurance policies, and hence may C. Costs effective amendments on Form N–1A also result in more efficient asset Variable life insurance issuers will and 9 initial registration statements on allocation among variable life insurance incur a one-time cost for training in Form N–1A are filed annually for fund policies. Although it is not possible to order for their personnel, particularly portfolios that offer their shares quantify the beneficial effects of this lawyers and others who are responsible exclusively as investment options for increased competition, we believe that for supervising the preparation of variable annuity contracts and variable they may be significant, given that variable life insurance filings, to review life insurance policies and hence do not assets in variable life insurance and analyze the disclosure requirements include a fee table in their products total approximately $42.8 of Form N–6. Although Form N–6 is a prospectuses.107 We estimate that the billion, and new variable life insurance new registration form, much of the premiums may equal $6.9 billion per information required by Form N–6 is 106 Item 1(b)(1) of Form N–6. 105 year. 107 These estimates are based on the 29%, National Underwriter Life & Health/Financial Commission’s analysis of data from its EDGAR 105 Lipper Variable Insurance Products Services Edition, Jan. 15, 2001, at 26 (discussing system on the number of initial registration Performance Analysis, 4th Quarter 2001 Report, industry survey estimating that new variable life statements and post-effective amendments filed on Vol. I at 1–1, supra note 4; Geraldine Murtagh, insurance premiums equaled $5.18 billion for the Form N–1A in 2000 by funds offering shares Variable Life Still Cookin’; 3rd Quarter Sales Surged first 9 months of 2000). Continued VerDate 11 hour burden of adding fee table review in accordance with 44 U.S.C. offering variable life insurance in the disclosure to these registration 3507(d) and 5 CFR 1320.11. The years 2000 and 2001. statements will be minimal, because the Commission did not receive any The Commission estimates that there fund portfolios must already compile comments on the Paperwork Reduction are approximately 200 variable life and provide fee table information for Act portion of the Proposing Release. insurance policies issued by separate issuers of variable insurance contracts As described above, Form N–6 will be accounts registered as unit investment that include these portfolios as used by insurance company separate trusts. The Commission estimates that investment options, and hence provide accounts that are registered as unit these separate accounts will file as information about their fees and investment trusts and that offer variable many as 59 initial registration expenses in the contract prospectuses. life insurance policies. Form N–6 will statements and 500 post-effective Therefore, we estimate that the provide these variable life insurance amendments on proposed Form N–6 average hour burden per Form N–1A separate accounts a single, integrated annually.110 registration statement for adding this fee form for Investment Company Act and In the Proposing Release, the information will be 2 hours, for either Securities Act registration. For these Commission estimated that the hour an initial registration statement or a separate accounts, it will replace Form burden for preparing and filing an post-effective amendment. Based on an N–8B–2, currently used by separate initial registration statement on estimated number of 10 portfolios per accounts to register as unit investment proposed Form N–6 is 800 hours.111 We registration statement for a fund offering trusts under the Investment Company received no comments on this estimate, its shares exclusively as investment Act, and Form S–6, currently used by and therefore we continue to estimate options for variable annuity contracts separate accounts to offer their that the hour burden for an initial filing and variable life insurance policies, the securities under the Securities Act. A on Form N–6 is 800 hours. Thus, the average hour burden per portfolio for registration statement on Form N–6 will annual hour burden for preparing and adding this disclosure will be 0.2 consist of a simplified prospectus that is filing initial registration statements on × hours.108 We therefore estimate the designed to include items that are Form N–6 would be 47,200 hours (59 annual industry cost of the amendments specifically addressed to variable life 800 hours). We estimate that the hour to Form N–1A to be 344 hours, or insurance products, a statement of burden for preparing and filing a post- $28,896.109 additional information that contains effective amendment on proposed Form more extensive information that N–6 for purposes of an annual update is D. Conclusion investors could obtain upon request, 100 hours, while additional post- Based on information provided in the and other information not included in effective amendments would require 10 comment letters and its own analysis, the prospectus or the SAI. hours. Thus, the total annual hour the Commission believes that the The information required by Form N– adoption of Form N–6 will permit 6 is primarily for the use and benefit of 110 In the Form N–6 Proposing Release, the investors. The Form N–6 prospectus Commission estimated that there would be as many separate accounts issuing variable life as 50 initial registration statements and 200 post- insurance policies to register under the will contain essential information to effective amendments that would be filed annually Investment Company Act and to offer assist an investor in making an on proposed Form N–6. This estimate was based on their securities under the Securities Act investment decision, such as a the fact that there were approximately 200 separate description of contractual provisions accounts issuing variable life insurance policies more efficiently, and that, in the long registered with the Commission, and that each term, the benefits of the new form relating to premiums, death benefits, separate account must file at least on post-effective justify the associated costs. cash values, loans, and surrenders and amendment per year to update its financial withdrawals. The prospectus will also statements. The Commission estimates, based on its IV. Paperwork Reduction Act include a uniform, tabular presentation analysis of data from the EDGAR filing system for 2000 and 2001, that there are approximately 200 A. Adoption of Form N–6 of fees and charges, which will improve variable life insurance policies currently registered disclosure and enhance the with the Commission filing annual post-effective As explained in the Proposing comparability of charges among amendment updates. In addition to filing at least Release, certain provisions of Form N– policies. Information requirements in one post-effective amendment annually to update 6 contain ‘‘collection of information’’ the current registration forms that are their financial statements, the Commission requirements within the meaning of the estimates, based on EDGAR filing data, that these not relevant to variable life insurance variable life insurance policies also file 300 Paperwork Reduction Act of 1995 [44 will be eliminated from the Form N–6 additional post-effective amendments annually on U.S.C. 3501 et seq.]. We published a prospectus. The information required to Form S–6. These 300 other post-effective notice soliciting comments on the be filed with the Commission pursuant amendments are generally filed pursuant to collection of information requirements Securities Act rule 485(b) to make non-material to the information collection will also changes to the registration statement, and are in the Proposing Release and submitted permit the verification of compliance generally more limited and much simpler to these requirements to the Office of with securities law requirements and prepare than post-effective amendments filed as Management and Budget (‘‘OMB’’) for annual updates. Accordingly, we estimate the hour will assure the public availability and burden for each of these additional post-effective dissemination of the information. amendments to be 10 hours. We estimate that the exclusively to one or more separate accounts. The In the Proposing Release, the number of post-effective amendments filed on Form numbers of initial registration statements and post- Commission estimated the burden hours N–6 as annual updates, and the number of post- effective amendments filed on Form N–1A by these effective amendments filed on Form N–6 for other funds have been consistent in recent years. that would be necessary for the purposes, will be the same as the numbers of such 108 The Commission has previously estimated that collection of information requirements post-effective amendments currently filed on Form 1,575 funds registered on Form N–1A are under the proposed Form N–6. We have, S–6. underlying portfolios for variable insurance however, revised certain estimates 111 The hour burden of 800 hours for Form N–6 contracts. See After-Tax Returns Adopting Release, contained in the Proposing Release is based on the hour burden estimate for similar supra note 16, 66 FR at 9012. The estimate of ten investment company registration forms, in portfolios per registration statement is based on the based on an analysis of the data particular Form N–1A, which are of similar length number of portfolios currently registered (1,575) contained in the Commission’s EDGAR and complexity. See Investment Company Act divided by the number of registrants filing post- system with respect to the number of Release No. 24082 (Oct. 14, 1999) [64 FR 59826, effective amendments (163). 59854 nn. 293–294 (Nov. 3 1999)] (estimating PRA 109 This cost estimate was calculated by initial registration statements and post- hour burden per portfolio at 800 hours for an initial multiplying the annual hour burden (344) by the effective amendments filed on Forms S– filing on Form N–1A, and 100 hours for a post- weighted average hourly wage ($84). 6 and N–8B–2 by separate accounts effective amendment on Form N–1A). VerDate 11 burden for preparing and filing post- for review in accordance with 44 U.S.C. prospectuses.113 We estimate that the effective amendments on Form N–6 3507(d) and 5 CFR 1320.11. The title for hour burden of adding fee table would be 23,000 hours ((200 × 100 the collection of information is ‘‘Form disclosure to these registration hours) + (300 × 10 hours)). The total N–1A under the Investment Company statements will be minimal, because the annual hour burden for proposed Form Act of 1940 and Securities Act of 1933, fund portfolios must already compile N–6, therefore, is estimated to be 70,200 Registration Statement of Open-End and provide fee table information for hours (47,200 hours + 23,000 hours). Management Investment Companies.’’ issuers of variable annuity contracts and The Commission estimates that the The information collection requirements variable life insurance policies that cost burden for preparing and filing an imposed by Form N–1A are mandatory. include these portfolios as investment initial registration statement on Responses to the collection of options, and hence provide information proposed Form N–6 is $20,000. This information will not be kept about their fees and expenses in the cost burden includes all costs associated confidential. An agency may not contract prospectuses. Therefore, we with filing on Form N–6 other than conduct or sponsor, and a person is not estimate that the average hour burden wages, salaries, and fees paid for the required to respond to, a collection of per registration statement for adding hour burden. These costs may include, information unless it displays a this fee information will be 2 hours, for for example, the cost of preparing a currently valid control number. either an initial registration statement or filing for the EDGAR system Form N–1A (OMB Control No. 3235– a post-effective amendment. Based on (‘‘EDGARization’’), typesetting of the 0307) was adopted pursuant to section an estimated number of 10 portfolios prospectus (which is typically done 8(a) of the Investment Company Act [15 per registration statement for a fund before the prospectus is filed on U.S.C. 80a-8] and section 5 of the offering shares exclusively to separate EDGAR), and the cost of outside counsel Securities Act [15 U.S.C. 77e]. The accounts, the average hour burden per and independent auditors in connection purpose of Form N–1A is to meet the portfolio for adding this disclosure will with filing on Form N–6. Thus, the registration and disclosure requirements be 0.2 hours.114 Thus, we estimate that annual cost burden for preparing and of the Securities Act and Investment the amendment to Form N–1A will add filing initial registration statements × Company Act and to enable open-end 344 hours [(163 post-effective would be $1,180,000 (59 $20,000). The management investment companies to amendments + 9 initial registration Commission estimates that the cost provide investors with information statements) × 2 hours] to the previous burden for preparing and filing a post- necessary to evaluate an investment in Form N–1A annual burden of 1,145,843 effective amendment on proposed Form an investment company. hours, resulting in a new total Form N– N–6 for purposes of an annual update is The Commission is amending Form 1A annual hour burden of 1,146,187 $7,500, while the cost of preparing and hours. filing an additional post-effective N–1A by eliminating the current amendment is $2,000. Thus, the total exclusion from the fee table requirement We request your comments on the annual cost burden for preparing and of Form N–1A for funds that offer their accuracy of our estimate of the burden filing post-effective amendments on shares exclusively as investment of the amendment to Form N–1A. Form N–6 would be $2,100,000 ((200 × options for variable annuity contracts Pursuant to 44 U.S.C. 3506(c)(2)(B), the $7,500) + (300 × $2,000)). The total and variable life insurance policies, and Commission solicits comments to: (i) annual cost burden for proposed Form requiring that these funds include a fee Evaluate whether the proposed N–6, therefore, is estimated to be table in their prospectuses. This collection of information is necessary $3,280,000 ($2,100,000 + $1,180,000). amendment is being adopted because for the proper performance of the OMB approved the collection the fee table in the Form N–6 prospectus functions of the agency, including requirements contained in Form N–6 will require variable life registrants to whether the information will have (OMB Control No. 3235–0503). The title disclose the range of expenses for all practical utility; (ii) evaluate the for the collection of information is Portfolio Companies offered through a accuracy of the Commission’s estimate ‘‘Form N–6 Under the Investment variable life insurance policy, rather of burden of the proposed collection of Company Act of 1940 and the Securities than separately stating the fees and information; (iii) determine whether Act of 1933, Registration Statement of charges of each Portfolio Company. In there are ways to enhance the quality, Variable Life Insurance Separate addition, the Commission is proposing utility, and clarity of the information to Accounts Registered as Unit Investment amendments to conform the treatment be collected; and (iv) evaluate whether Trusts.’’ The information collection of fund expenses in the fee table of there are ways to minimize the burden requirements imposed by Form N–6 are Form N–4, the registration form for of the collection of information on those mandatory. Responses to the collection variable annuity contracts, to that in who are to respond, including through of information will not be kept Form N–6.112 The amendment to Form the use of automated collection confidential. An agency may not N–1A will ensure that investors conduct or sponsor, and a person is not continue to have access to complete 113 These estimates are based on the required to respond to, a collection of information about Portfolio Company Commission’s analysis of data from its EDGAR information unless it displays a fees and expenses. system on the number of initial registration statements and post-effective amendments filed on currently valid OMB control number. The Commission estimates that 163 Form N–1A in 2000 by funds offering shares post-effective amendments on Form N– B. Amendment to Form N–1A exclusively to one or more separate accounts. The 1A and 9 initial registration statements number of initial registration statements and post- Form N–1A, the registration form for on Form N–1A are filed annually for effective amendments filed on Form N–1A by these open-end management investment fund portfolios that offer their shares funds have been consistent in recent years. 114 The Commission has previously estimated that companies, contains ‘‘collection of exclusively as investment options for 1,575 funds registered on Form N–1A are information’’ requirements within the variable annuity contracts and variable underlying portfolios for variable insurance meaning of the Paperwork Reduction life insurance policies and hence do not contracts. See After-Tax Returns Adopting Release, Act of 1995 [44 U.S.C. 3501 et seq.], and include a fee table in their supra note 16, 66 FR at 9012. The estimate of ten portfolios per registration statement is based on the the Commission is submitting the number of portfolios currently registered (1,575) proposed collections of information to 112 See Form N–4 Proposing Release, supra note divided by the number of registrants filing post- the Office of Management and Budget 1. effective amendments (163). VerDate 11 techniques or other forms of information and charges assessed by a variable life Text of Rule Amendments and Forms technology. insurance policy. The enhanced List of Subjects Persons submitting comments on the disclosure of this essential information collection of information requirements about charges and other features of a 17 CFR Parts 230, 270, and 274 should direct the comments to the variable life insurance policy will Investment companies, Reporting and Office of Management and Budget, enable investors to become more recordkeeping requirements, Securities. Attention: Desk Officer for the informed about the different aspects of 17 CFR Part 239 Securities and Exchange Commission, variable life insurance policies, and Office of Information and Regulatory therefore will promote more efficient Reporting and recordkeeping Affairs, Room 3208, New Executive allocation of investors’ assets, both requirements, Securities. Office Building, Washington, DC 20503, among different variable life insurance For the reasons set out in the and should send a copy to Jonathan G. preamble, the Commission amends Katz, Secretary, Securities and Exchange policies and vis-a`-vis other, competing types of financial products. In addition, Chapter II, Title 17 of the Code of Commission, 450 Fifth Street, NW, Federal Regulations as follows. Washington, DC 20549–0609, with the enhanced disclosure required by reference to File No. S7–9–98. Request Form N–6 will promote competition PART 230—GENERAL RULES AND for materials submitted to OMB by the among issuers of variable life insurance REGULATIONS, SECURITIES ACT OF Commission with regard to this policies as they seek to attract these 1933 collection of information should be in more knowledgeable investors. While writing, refer to File No. S7–9–98, and investors will be better equipped to 1. The authority citation for Part 230 be submitted to the Securities and make investment decisions following continues to read in part as follows: Exchange Commission, 450 Fifth Street, the adoption of Form N–6, it is unclear Authority: 15 U.S.C. 77b, 77c, 77d, 77f, NW, Washington, DC 20549, Attention: whether Form N–6 will affect capital 77g, 77h, 77j, 77r, 77sss, 77z–3, 78c, 78d, 78l, Records Management, Office of Filings formation. 78m, 78n, 78o, 78t, 78w, 78ll(d), 78mm, 79t, and Information Services. OMB is 80a–8, 80a–24, 80a–28, 80a–29, 80a–30, and required to make a decision concerning VI. Regulatory Flexibility Act 80a–37, unless otherwise noted. the collection of information between 30 Certification * * * * * and 60 days after publication of this Pursuant to Section 605(b) of the 2. Revise § 230.134b to read as release. Consequently, a comment to follows: OMB is best assured of having its full Regulatory Flexibility Act [5 U.S.C. effect if OMB receives it within 30 days 605(b)] the Chairman of the Commission § 230.134b Statements of additional after publication of this release. has certified that proposed Form N–6 information. does not have a significant economic For the purpose only of Section 5(b) V. Effects on Efficiency, Competition, impact on a substantial number of small of the Act (15 U.S.C. 77e(b)), the term and Capital Formation entities. The initial certification was ‘‘prospectus’’ as defined in Section Section 2(c) of the Investment attached to the Proposing Release as 2(a)(10) of the Act (15 U.S.C. 77b(a)(10)) Company Act, section 2(b) of the Appendix A. We requested comments does not include a Statement of Securities Act, and section 3(f) of the on the certification, but received none. Additional Information filed as part of Securities Exchange Act of 1934 require Pursuant to Section 605(b) of the a registration statement on Form N–1A the Commission, when engaging in Regulatory Flexibility Act [5 U.S.C. (§ 239.15A and § 274.11A of this rulemaking that requires it to consider 605(b)], the Chairman of the chapter), Form N–2 (§ 239.14 and or determine whether an action is Commission also has certified that the § 274.11a–1 of this chapter), Form N–3 consistent with the public interest, to amendment to Form N–1A adopted as (§ 239.17a and § 274.11b of this consider, in addition to the protection of part of this Adopting Release does not chapter), Form N–4 (§ 239.17b and investors, whether the action will have a significant economic impact on § 274.11c of this chapter), or Form N–6 promote efficiency, competition, and (§ 239.17c and § 274.11d of this chapter) a substantial number of small entities. capital formation. 115 The Commission transmitted prior to the effective date of Few, if any, small entities would be has considered these factors. the registration statement if it is The adoption and implementation of affected by the amendment to Form N– accompanied or preceded by a Form N–6, and the related amendment 1A, and the amendment to Form N–1A preliminary prospectus meeting the to Form N–1A, will improve efficiency would not have a significant economic requirements of § 230.430. impact. The Chairman’s certification, and competition among issuers of 3. Amend § 230.430 to revise the variable life insurance policies. Unlike including the reasons therefor, is introductory text of paragraph (b) to Forms N–8B–2 and S–6 that currently attached to this release as Appendix A. read as follows: are used by variable life insurance VII. Statutory Authority issuers, Form N–6 is specifically § 230.430 Prospectus for use prior to tailored to variable life insurance. The The Commission is amending its rules effective date. requirements of the form focus on and forms, and adding Form N–6, * * * * * information that is essential to a pursuant to sections 5, 7, 8, 10, and (b) A form of prospectus filed as part decision to invest in a particular 19(a) of the Securities Act [15 U.S.C. of a registration statement on Form N– variable life insurance policy, and the 77e, 77g, 77h, 77j, and 77s(a)] and 1A (§ 239.15A and § 274.11A of this chapter), Form N–2 (§ 239.14 and form is intended to enhance the sections 8, 22, 24, 26, 30, and 38 of the comparability of information about § 274.11a–1 of this chapter), Form N–3 Investment Company Act [15 U.S.C. variable life insurance policies. For (§ 239.17a and § 274.11b of this 80a–8, 80a–22, 80a–24, 80a–26, 80a–29, example, Form N–6 will require variable chapter), Form N–4 (§ 239.17b and life insurance registrants to provide a and 80a–37]. The authority citations for § 274.11c of this chapter), or Form N–6 uniform, tabular presentation of fees the amendments to the rules and forms (§ 239.17c and § 274.11d of this chapter) precede the text of the amendments. shall be deemed to meet the 115 15 U.S.C. 77b(b), 78c(f), and 80a–2(c). requirements of Section 10 of the Act VerDate 11 (15 U.S.C. 77j) for the purpose of information called for by each of the Additional Information insofar as later Section 5(b)(1) thereof (15 U.S.C. items of the applicable Part, except that information covering the same subjects, 77e(b)(1)) prior to the effective date of unless otherwise specified, no reference including the latest available certified the registration statement, provided need be made to inapplicable items, and financial statements, as of a date not that: negative answers to any item may be more than 16 months prior to the use of * * * * * omitted. Copies of Parts A and B may the prospectus or the Statement of 4. Amend § 230.430A to revise be filed as part of the registration Additional Information is contained paragraph (e) before the Note to read as statement in lieu of furnishing the therein. follows: information in item-and-answer form. 7. Amend § 230.497 to revise Wherever such copies are filed in lieu paragraphs (c) and (e) to read as follows: § 230.430A Prospectus in a registration of information in item-and-answer form, statement at the time of effectiveness. the text of the items of the form is to be § 230.497 Filing of investment company prospectuses—number of copies. * * * * * omitted from the registration statement, (e) In the case of a registration as well as from Parts A and B, except * * * * * statement filed on Form N–1A to the extent provided in paragraph (d) (c) For investment companies filing (§ 239.15A and § 274.11A of this of the section. on Form N–1A (§ 239.15A and chapter), Form N–2 (§ 239.14 and (d) In the case of a registration § 274.11A of this chapter), Form N–2 § 274.11a–1 of this chapter), Form N–3 statement filed on Form N–1A (§ 239.14 and § 274.11a–1 of this (§ 239.17a and § 274.11b of this (§ 239.15A and § 274.11A of this chapter), Form N–3 (§ 239.17a and § 274.11b of this chapter), Form N–4 chapter), Form N–4 (§ 239.17b and chapter), Form N–2 (§ 239.14 and (§ 239.17b and § 274.11c of this § 274.11c of this chapter), or Form N–6 § 274.11a–1 of this chapter), Form N–3 chapter), or Form N–6 (§ 239.17c and (§ 239.17c and § 274.11d of this (§ 239.17a and § 274.11b of this § 274.11d of this chapter), within five chapter), the references to ‘‘form of chapter), Form N–4 (§ 239.17b and days after the effective date of a prospectus’’ in paragraphs (a) and (b) of § 274.11c of this chapter), or Form N–6 registration statement or the this section and the accompanying Note (§ 239.17c and § 274.11d of this commencement of a public offering after shall be deemed also to refer to the form chapter), where any item of those forms the effective date of a registration of Statement of Additional Information calls for information not required to be statement, whichever occurs later, ten filed as part of such a registration included in Parts A and B (generally copies of each form of prospectus and statement. Part C of such form), the text of such items, including the numbers and form of Statement of Additional * * * * * captions thereof, together with the Information used after the effective date 5. Amend § 230.495 to revise answers thereto, shall be filed with Parts in connection with such offering shall paragraphs (a), (c), and (d) to read as A or B under cover of the facing sheet be filed with the Commission in the follows: of the form as part of the registration exact form in which it was used. § 230.495 Preparation of registration statement. However, the text of such * * * * * statement. items may be omitted, provided the (e) For investment companies filing answers are so prepared as to indicate (a) A registration statement on Form on Form N–1A (§ 239.15A and the coverage of the item without the N–1A (§ 239.15A and § 274.11A of this § 274.11A of this chapter), Form N–2 necessity of reference to the text of the chapter), Form N–2 (§ 239.14 and (§ 239.14 and § 274.11a–1 of this item. If any such item is inapplicable, or § 274.11a–1 of this chapter), Form N–3 chapter), Form N–3 (§ 239.17a and the answer thereto is in the negative, a (§ 239.17a and § 274.11b of this § 274.11b of this chapter), Form N–4 statement to that effect shall be made. chapter), Form N–4 (§ 239.17b and (§ 239.17b and § 274.11c of this Any financial statements not required to § 274.11c of this chapter), or Form N–6 chapter), or Form N–6 (§ 239.17c and be included in Parts A and B shall also § 274.11d of this chapter), after the (§ 239.17c and § 274.11d of this be filed as part of the registration chapter), shall consist of the facing sheet effective date of a registration statement, statement proper, unless incorporated no prospectus that purports to comply of the applicable form; a prospectus by reference pursuant to § 230.411. containing the information called for by with Section 10 of the Act (15 U.S.C. such form; the information, list of * * * * * 77j) or Statement of Additional exhibits, undertakings and signatures 6. Revise § 230.496 to read as follows: Information that varies from any form of prospectus or form of Statement of required to be set forth in such form; § 230.496 Contents of prospectus and financial statements and schedules; Additional Information filed pursuant to statement of additional information used paragraph (c) of this section shall be exhibits; and other information or after nine months. used until five copies thereof have been documents filed as part of the In the case of a registration statement registration statement; and all filed with, or mailed for filing to the filed on Form N–1A (§ 239.15A and Commission. documents or information incorporated § 274.11A of this chapter), Form N–2 by reference in the foregoing (whether (§ 239.14 and § 274.11a–1 of this * * * * * or not required to be filed). chapter), Form N–3 (§ 239.17a and PART 239—FORMS PRESCRIBED * * * * * § 274.11b of this chapter), Form N–4 UNDER THE SECURITIES ACT OF 1933 (c) In the case of a registration (§ 239.17b and § 274.11c of this statement filed on Form N–1A chapter), or Form N–6 (§ 239.17c and 8. The general authority citation for (§ 239.15A and § 274.11A of this § 274.11d of this chapter), there may be Part 239 is revised to read as follows: chapter), Form N–2 (§ 239.14 and omitted from any prospectus or Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, § 274.11a–1 of this chapter), Form N–3 Statement of Additional Information 77z–2, 77sss, 78c, 78l, 78m, 78n, 78o(d), (§ 239.17a and § 274.11b of this used more than 9 months after the 78u–5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l, chapter), Form N–4 (§ 239.17b and effective date of the registration 79m, 79n, 79q, 79t, 80a–8, 80a–24, 80a–26, § 274.11c of this chapter), or Form N–6 statement any information previously 80a–29, 80a–30, and 80a–37, unless (§ 239.17c and § 274.11d of this required to be contained in the otherwise noted. chapter), Parts A and B shall contain the prospectus or the Statement of * * * * * VerDate 11 9. Add § 239.17c to read as follows: 13. Amend § 270.8b–12 to revise pursuant to section 8(b) of the paragraph (b) to read as follows: Investment Company Act of 1940 by § 239.17c Form N–6, registration statement separate accounts that offer variable life for separate accounts organized as unit § 270.8b–12 Requirements as to paper, investment trusts that offer variable life printing and language. insurance policies to register as unit investment trusts. This form shall also insurance policies. * * * * * be used for registration under the Form N–6 shall be used for (b) In the case of a registration Securities Act of 1933 of the securities registration under the Securities Act of statement filed on Form N–1A of such separate accounts (§ 239.17c of 1933 of securities of separate accounts (§ 239.15A and § 274.11A of this that offer variable life insurance policies chapter), Form N–2 (§ 239.14 and this chapter). and that register under the Investment § 274.11a–1 of this chapter), Form N–3 17. Revise § 274.12 to read as follows: Company Act of 1940 as unit (§ 239.17a and § 274.11b of this investment trusts. This form is also to be chapter), Form N–4 (§ 239.17b and § 274.12 Form N–8B–2, registration used for the registration statement of § 274.11c of this chapter), or Form N–6 statement of unit investment trusts that are such separate accounts pursuant to (§ 239.17c and § 274.11d of this currently issuing securities. chapter), Part C of the registration section 8(b) of the Investment Company This form shall be used as the statement shall be filed on good quality, Act of 1940 (§ 274.11d of this chapter). registration statement to be filed, unglazed, white paper, no larger than pursuant to section 8(b) of the PART 270—RULES AND 81⁄2 x 11 inches in size, insofar as REGULATIONS, INVESTMENT practicable. The prospectus and, if Investment Company Act of 1940, by COMPANY ACT OF 1940 applicable, the Statement of Additional unit investment trusts other than Information, however, may be filed on separate accounts that are currently 10. The authority citation for part 270 smaller-sized paper provided that the issuing securities, including unit is amended by adding the following size of paper used in each document is investment trusts that are issuers of citation: uniform. periodic payment plan certificates. Authority: 15 U.S.C. 80a–1, et seq., 80a– * * * * * 18. Revise Form N–8B–2 (referenced 34(d), 80a–37, 80a–39, unless otherwise in § 274.12), General Instruction 1, to noted; PART 274—FORMS PRESCRIBED read as follows: UNDER THE INVESTMENT COMPANY * * * * * ACT OF 1940 Note: The text of Form N–8B–2 does not Section 270.8b–11 is also issued and this amendment will not appear in the under 15 U.S.C. 77s, 80a–8, and 80a–37. 14. The authority citation for Part 274 Code of Federal Regulations. * * * * * is revised to read as follows: Form N–8B–2 11. The authority citation following Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, * * * * * § 270.8b–11 is removed. 78c(b), 78l, 78m, 78n, 78o(d), 80a–8, 80a–24, 80a–26, and 80a–29, unless otherwise noted. General Instructions for Form N–8B–2. 12. Amend § 270.8b–11 to revise 15. Form N–1A, Item 3 (referenced in * * * * * paragraph (b) to read as follows: §§ 239.15A and 274.11A) is amended by 1. Rule as to Use of Form § 270.8b–11 Number of copies; signatures; revising the introductory text to read as binding. follows: This form shall be used as the form for registration statements to be filed, pursuant * * * * * Note: The text of Form N–1A does not and this amendment will not appear in the Code to Section 8(b) of the Investment Company (b) In the case of a registration of Federal Regulations. Act of 1940, by unit investment trusts other statement filed on Form N–1A than separate accounts that are currently Form N–1A (§ 239.15A and § 274.11A of this issuing securities, including unit investment chapter), Form N–2 (§ 239.14 and * * * * * trusts that are issuers of periodic payment § 274.11a–1 of this chapter), Form N–3 Item 3. Risk/Return Summary: Fee Table plan certificates and unit investment trusts of (§ 239.17a and § 274.11b of this which a management investment company is chapter), Form N–4 (§ 239.17b and Include the following information, in plain English under rule 421(d) under the the sponsor or depositor. § 274.11c of this chapter), or Form N–6 Securities Act, after Item 2: * * * * * (§ 239.17c and § 274.11d of this chapter), three complete copies of each * * * * * 16. Add § 274.11d to read as follows: 19. Add Form N–6 (referenced in part of the registration statement § 239.17c and § 274.11d) to read as (including, if applicable, exhibits and § 274.11d Form N–6, registration follows: all other papers and documents filed as statement of separate accounts organized part of Part C of the registration as unit investment trusts that offer variable Note: The text of Form N–6 will not appear statement) shall be filed with the life insurance policies. in the Code of Federal Regulations. Commission. Form N–6 shall be used as the BILLING CODE 8010–01–P * * * * * registration statement to be filed VerDate 11 BILLING CODE 8010–91–C VerDate 11 If appropriate, check the following box: Item 19. Additional Information About B. Filing and Use of Form N–6 bThis post-effective amendment Operation of Contracts and Registrant 1. What Is Form N–6 Used For? designates a new effective date for a Item 20. Underwriters previously filed post-effective amendment. Item 21. Additional Information About Form N–6 is used by all separate accounts Omit from the facing sheet reference to the Charges that are registered under the Investment other Act if the registration statement or Item 22. Lapse and Reinstatement Company Act as unit investment trusts and amendment is filed under only one of the Item 23. Loans offering Variable Life Insurance Contracts to Acts. Include the ‘‘Approximate Date of Item 24. Financial Statements file: Proposed Public Offering’’ only where Item 25. Performance Data (a) An initial registration statement under securities are being registered under the Item 26. Illustrations the Investment Company Act and Securities Act of 1933. amendments to the registration statement; Part C: Other Information Form N–6 is to be used by separate (b) An initial registration statement under accounts that are unit investment trusts that Item 27. Exhibits the Securities Act and amendments to the offer variable life insurance contracts to Item 28. Directors and Officers of the registration statement, including register under the Investment Company Act Depositor amendments required by section 10(a)(3) of of 1940 and to offer their securities under the Item 29. Persons Controlled by or Under the Securities Act [15 U.S.C. 77j(a)(3)]; or Securities Act of 1933. The Commission has Common Control with the Depositor or designed Form N–6 to provide investors with (c) Any combination of the filings in the Registrant paragraph (a) or (b). information that will assist them in making Item 30. Indemnification a decision about investing in a variable life Item 31. Principal Underwriters 2. What Is Included in the Registration insurance contract. The Commission also Item 32. Location of Accounts and Records Statement? may use the information provided in Form Item 33. Management Services N–6 in its regulatory, disclosure review, (a) For registration statements or Item 34. Fee Representation inspection, and policy-making roles. amendments filed under both the Investment A Registrant is required to disclose the Signatures Company Act and the Securities Act or only information specified by Form N–6, and the under the Securities Act, include the facing Commission will make this information General Instructions sheet of the Form, Parts A, B, and C, and the public. A Registrant is not required to A. Definitions required signatures. respond to the collection of information (b) For registration statements or contained in Form N–6 unless the Form References to sections and rules in this amendments filed only under the Investment Form N–6 are to the Investment Company displays a currently valid Office of Company Act, include the facing sheet of the Act of 1940 [15 U.S.C. 80a–1 et seq.] (the Management and Budget (‘‘OMB’’) control Form, responses to all Items of Parts A ‘‘Investment Company Act’’), unless number. Please direct comments concerning (except Items 1, 2, 3, and 14), B, and C otherwise indicated. Terms used in this Form the accuracy of the information collection (except Items 27 (c), (k), (l), (n), and (o)), and N–6 have the same meaning as in the burden estimate and any suggestions for the required signatures. reducing the burden to Secretary, Securities Investment Company Act or the related rules, and Exchange Commission, 450 5th Street, unless otherwise indicated. As used in this 3. What Are the Fees for Form N–6? NW, Washington, DC 20549–0609. The OMB Form N–6, the terms set out below have the No registration fees are required with the has reviewed this collection of information following meanings: filing of Form N–6 to register as an ‘‘Depositor’’ means the person primarily under the clearance requirements of 44 investment company under the Investment responsible for the organization of the U.S.C. 3507. Company Act or to register securities under Registrant and the person, other than the the Securities Act. If Form N–6 is filed to Contents of Form N–6 trustee or custodian, who has continuing register securities under the Securities Act functions or responsibilities for the General Instructions and securities are sold to the public, administration of the affairs of the Registrant. registration fees must be paid on an ongoing A. Definitions ‘‘Depositor’’ includes the sponsoring B. Filing and Use of Form N–6 insurance company that establishes and basis after the end of the Registrant’s fiscal C. Preparation of the Registration Statement maintains the Registrant. If there is more than year. See section 24(f) [15 U.S.C. 80a–24f–2] D. Incorporation by Reference one Depositor, the information called for in and related rule 24f–2 [17 CFR 270.24f–2]. Part A: Information Required in a this Form about the Depositor must be 4. What Rules Apply to the Filing of a Prospectus provided for each Depositor. Registration Statement on Form N–6? ‘‘Portfolio Company’’ means any company (a) For registration statements and Item 1. Front and Back Cover Pages in which the Registrant invests. amendments filed under both the Investment Item 2. Risk/Benefit Summary: Benefits and ‘‘Registrant’’ means the separate account Risks Company Act and the Securities Act or only (as defined in section 2(a)(37) of the Item 3. Risk/Benefit Summary: Fee Table Investment Company Act [15 U.S.C. 80a– under the Securities Act, the general rules Item 4. General Description of Registrant, 2(a)(37)]) that offers the Variable Life regarding the filing of registration statements Depositor, and Portfolio Companies Insurance Contracts. in Regulation C under the Securities Act [17 Item 5. Charges ‘‘SAI’’ means the Statement of Additional CFR 230.400–230.497] apply to the filing of Item 6. General Description of Contracts Information required by Part B of this Form. Form N–6. Specific requirements concerning Item 7. Premiums investment companies appear in rules 480– Item 8. Death Benefits and Contract Values ‘‘Securities Act’’ means the Securities Act of 1933 [15 U.S.C. 77a et seq.]. 485 and 495–497 of Regulation C. Item 9. Surrenders, Partial Surrenders, and (b) For registration statements and Partial Withdrawals ‘‘Securities Exchange Act’’ means the Securities Exchange Act of 1934 [15 U.S.C. amendments filed only under the Investment Item 10. Loans Company Act, the general provisions in rules Item 11. Lapse and Reinstatement 78a et seq.]. 8b–1–8b–32 [17 CFR 270.8b–1–270.8b–32] Item 12. Taxes ‘‘Variable Life Insurance Contract’’ or apply to the filing of Form N–6. Item 13. Legal Proceedings ‘‘Contract’’ means a life insurance contract Item 14. Financial Statements that provides for death benefits and cash (c) The plain English requirements of rule values that may vary with the investment 421 under the Securities Act [17 CFR Part B: Information Required in a Statement experience of any separate account. Unless 230.421] apply to prospectus disclosure in of Additional Information the context otherwise requires, ‘‘Variable Life Part A of Form N–6. Item 15. Cover Page and Table of Contents Insurance Contract’’ or ‘‘Contract’’ refers to (d) Regulation S–T [17 CFR 232.10– Item 16. General Information and History the Variable Life Insurance Contracts being 232.903] applies to all filings on the Item 17. Services offered pursuant to the registration statement Commission’s Electronic Data Gathering, Item 18. Premiums prepared on this Form. Analysis, and Retrieval system (‘‘EDGAR’’). VerDate 11 C. Preparation of the Registration Statement information about the Registrant and the prospectus to provide clear and concise Variable Life Insurance Contracts that the information about the Registrants or Variable 1. Administration of the Form N–6 Commission has concluded is not necessary Life Insurance Contracts. Registrants are Requirements or appropriate in the public interest or for the encouraged to use, as appropriate, tables, (a) The requirements of Form N–6 are protection of investors to be in the side-by-side comparisons, captions, bullet intended to promote effective prospectus, but that some investors may find points, or other organizational techniques communication between the Registrant and useful. Part B affords the Registrant an when presenting disclosure for multiple prospective investors. A Registrant’s opportunity to expand discussions of the Variable Life Insurance Contracts or for prospectus should clearly disclose the matters described in the prospectus by Contracts sold in both the group and fundamental features and risks of the including additional information that the individual markets. Variable Life Insurance Contracts, using Registrant believes may be of interest to some (ii) Paragraph (a) requires Registrants to concise, straightforward, and easy to investors. The Registrant should not disclose the information required by Items 2 understand language. A Registrant should duplicate in the SAI information that is and 3 in numerical order at the front of the use document design techniques that provided in the prospectus, unless necessary prospectus and not to precede the Items with promote effective communication. to make the SAI comprehensible as a other information, except that the (b) The prospectus disclosure requirements document independent of the prospectus. information required by Item 3 must precede in Form N–6 are intended to elicit (c) Part C. Part C includes other the information required by Item 2 if the information for an average or typical investor information required in a Registrant’s information in response to Item 2 exceeds who may not be sophisticated in legal or registration statement. five pages in length. As a general matter, financial matters. The prospectus should 3. Additional Matters Registrants providing disclosure in a single help investors to evaluate the risks of an prospectus for more than one Variable Life (a) Organization of Information. Organize investment and to decide whether to invest Insurance Contract, or for Contracts sold in the information in the prospectus and SAI to in a Variable Life Insurance Contract by both the group and individual markets, may make it easy for investors to understand. providing a balanced disclosure of positive depart from the requirement of paragraph (a) Disclose the information required by Items 2 and negative factors. Disclosure in the as necessary to present the required and 3 (the Risk/Benefit Summary) in prospectus should be designed to assist an information clearly and effectively (although numerical order at the front of the investor in comparing and contrasting a the order of information required by each prospectus, except that the information Variable Life Insurance Contract with other Item must remain the same and Registrants required by Item 3 (Risk/Benefit Summary: Contracts. must comply with the requirement that Item Fee Table) must precede the information (c) Responses to the Items in Form N–6 3 precede Item 2 if the response to Item 2 should be as simple and direct as reasonably required by Item 2 (Risk/Benefit Summary: exceeds five pages in length). For example, possible and should include only as much Benefits and Risks) if the information in the prospectus may present all of the Item 2 information as is necessary to enable an response to Item 2 exceeds five pages in information for several Variable Life average or typical investor to understand the length. Do not precede Items 2 and 3 with Insurance Contracts followed by all of the particular characteristics of the Variable Life any other Item except the Cover Page (Item Item 3 information for the Contracts, except Insurance Contracts. The prospectus should 1) or a table of contents meeting the that the information required by Item 3 must avoid including lengthy legal and technical requirements of rule 481(c) under the precede the information required by Item 2 discussions and simply restating legal or Securities Act [17 CFR 230.481(c)]. If the if the information in response to Item 2 regulatory requirements to which Contracts discussion in the Risk/Benefit Summary also exceeds five pages in length. Alternatively, generally are subject. Brevity is especially responds to disclosure requirements in other the prospectus may present Items 2 and 3 for important in describing the practices or items of the prospectus, a Registrant need not each of several Contracts sequentially, except aspects of the Registrant’s operations that do include additional disclosure in the that the information required by Item 3 for not differ materially from those of other prospectus that repeats the information in the any Contract must precede the information separate accounts. Avoid excessive detail, Risk/Benefit Summary. required by Item 2 for that Contract if the technical or legal terminology, and complex (b) Other Information. A Registrant may information in response to Item 2 for that language. Also avoid lengthy sentences and include, except in the Risk/Benefit Summary, Contract exceeds five pages in length. Other paragraphs that may make the prospectus information in the prospectus or the SAI that presentations also would be acceptable if difficult for many investors to understand is not otherwise required. For example, a they are consistent with the Form’s intent to and detract from its usefulness. Registrant may include charts, graphs, or disclose the information required by Items 2 (d) The requirements for prospectuses tables so long as the information is not and 3 in a standard order at the beginning of included in Form N–6 will be administered incomplete, inaccurate, or misleading and the prospectus and the requirement that the by the Commission in a way that will allow does not, because of its nature, quantity, or information required by Item 3 must precede variances in disclosure or presentation if manner of presentation, obscure or impede the information required by Item 2 if the appropriate for the circumstances involved understanding of the information that is information in response to Item 2 exceeds while remaining consistent with the required to be included. Specifically, five pages in length. objectives of Form N–6. Registrants are free to include in the prospectus financial statements required to (d) Dates. Rule 423 under the Securities 2. Form N–6 Is Divided Into Three Parts be in the SAI, and may include in the SAI Act [17 CFR 230.423] applies to the dates of (a) Part A. Part A includes the information financial statements that may be placed in the prospectus and the SAI. The SAI should required in a Registrant’s prospectus under Part C. The Risk/Benefit Summary may not be made available at the same time that the section 10(a) of the Securities Act. The include disclosure other than that required or prospectus becomes available for purposes of purpose of the prospectus is to provide permitted by Items 2 and 3. rules 430 and 460 under the Securities Act essential information about the Registrant (c) Use of Form N–6 to Register Multiple [17 CFR 230.430 and 230.460]. and the Variable Life Insurance Contracts in Contracts or Contracts Sold in Both the (e) Sales Literature. A Registrant may a way that will help investors to make Group and Individual Markets. include sales literature in the prospectus so informed decisions about whether to (i) When disclosure is provided in a single long as the amount of this information does purchase the securities described in the prospectus for more than one Variable Life not add substantial length to the prospectus prospectus. In responding to the Items in Part Insurance Contract, or for a Contract that is and its placement does not obscure essential A, avoid cross-references to the SAI. Cross- sold in both the group and individual disclosure. references within the prospectus are most markets, the disclosure should be presented D. Incorporation by Reference useful when their use assists investors in in a format designed to communicate the understanding the information presented and information effectively. Registrants may 1. Specific Rules for Incorporation by does not add complexity to the prospectus. order or group the response to any Item in Reference in Form N–6 (b) Part B. Part B includes the information any manner that organizes the information (a) A Registrant may not incorporate by required in a Registrant’s SAI. The purpose into readable and comprehensible segments reference into a prospectus information that of the SAI is to provide additional and is consistent with the intent of the Part A of this Form requires to be included VerDate 11 in a prospectus, except as specifically Contracts; and to make contractowner (c) Portfolio Company Risks. A statement to permitted by Part A of the Form. inquiries. the effect that a comprehensive discussion of (b) A Registrant may incorporate by Instructions. the risks of each Portfolio Company may be reference any or all of the SAI into the 1. A Registrant may indicate, if applicable, found in the Portfolio Company’s prospectus. prospectus (but not to provide any that the SAI and other information are Instruction. Registrants may, but are not information required by Part A to be available on its Internet site and/or by E-mail required to, include information about the included in the prospectus) without request. Portfolio Companies in response to this Item delivering the SAI with the prospectus. 2. A Registrant may indicate, if applicable, 2. (c) A Registrant may incorporate by that the SAI and other information are reference into the SAI or its response to Part available from an insurance agent or financial Item 3. Risk/Benefit Summary: Fee Table C information that Parts B and C require to intermediary (such as a broker-dealer or Include the following information, in plain be included in the Registrant’s registration bank) through which the Contracts may be English under rule 421(d) under the statement. purchased or sold. Securities Act [17 CFR 230.421(d)], after Item 3. When a Registrant (or an insurance agent 2. General Requirements 2: or financial intermediary through which The following tables describe the fees and All incorporation by reference must Contracts may be purchased or sold) receives expenses that you will pay when buying, comply with the requirements of this Form a request for the SAI, the Registrant (or owning, and surrendering the Policy. The and the following rules on incorporation by insurance agent or financial intermediary) first table describes the fees and expenses reference: rule 10(d) of Regulation S–K under must send the SAI within 3 business days of that you will pay at the time that you buy the the Securities Act [17 CFR 229.10(d)] (general receipt of the request, by first-class mail or rules on incorporation by reference, which, Policy, surrender the Policy, or transfer cash other means designed to ensure equally value between investment options. among other things, prohibit, unless prompt delivery. specifically required by this Form, (2) A statement whether and from where incorporating by reference a document that information is incorporated by reference into TRANSACTION FEES includes incorporation by reference to the prospectus as permitted by General another document, and limits incorporation Instruction D. Unless the information is When Amount to documents filed within the last 5 years, delivered with the prospectus, explain that Charge charge is deducted deducted with certain exceptions); rule 411 under the the Registrant will provide the information Securities Act [17 CFR 230.411] (general without charge, upon request (referring to the Maximum Sales rules on incorporation by reference in a telephone number provided in response to Charge Im- prospectus); rule 303 of Regulation S–T [17 paragraph (b)(1)). posed on Pre- CFR 232.303] (specific requirements for Instruction. The Registrant may combine miums (Load) electronically filed documents); and rules 0– the information about incorporation by Premium Taxes 4, 8b–23, and 8b–32 [17 CFR 270.0–4, reference with the statements required under Maximum De- 270.8b–23, and 270.8b–32] (additional rules paragraph (b)(1). ferred Sales on incorporation by reference for investment (3) A statement that information about the Charge (Load) companies). Registrant (including the SAI) can be Other Surrender reviewed and copied at the Commission’s Part A: Information Required in a Fees Public Reference Room in Washington, DC. Prospectus Transfer Fees Also state that information on the operation Item 1. Front and Back Cover Pages of the public reference room may be obtained (a) Front Cover Page. Include the following by calling the Commission at 202–942–8090. The next table describes the fees and information, in plain English under rule State that reports and other information expenses that you will pay periodically 421(d) under the Securities Act [17 CFR about the Registrant are available on the during the time that you own the Policy, not 230.421(d)], on the outside front cover page Commission’s Internet site at http:// including [Portfolio Company] fees and of the prospectus: www.sec.gov and that copies of this expenses. (1) The Registrant’s name. information may be obtained, upon payment (2) The Depositor’s name. of a duplicating fee, by writing the Public PERIODIC CHARGES OTHER THAN (3) The types of Variable Life Insurance Reference Section of the Commission, 450 [PORTFOLIO COMPANY] OPERATING Contracts offered by the prospectus (e.g., Fifth Street, NW, Washington, DC 20549– EXPENSES group, individual, scheduled premium, 0102. flexible premium). (4) The Registrant’s Investment Company When (4) The date of the prospectus. Act file number on the bottom of the back Charge charge is Amount (5) The statement required by rule cover page in type size smaller than that deducted deducted 481(b)(1) under the Securities Act. generally used in the prospectus (e.g., 8-point Instruction. A Registrant may include on modern type). Cost of the front cover page any additional Insurance*: information, subject to the requirement set Item 2. Risk/Benefit Summary: Benefits and Risks Minimum and out in General Instruction C.3.(b). Maximum (b) Back Cover Page. Include the following Include, in plain English under rule 421(d) Charge information, in plain English under rule under the Securities Act [17 CFR 230.421(d)], Charge for a 421(d) under the Securities Act [17 CFR a concise description of the Contract, [Represent- 230.421(d)], on the outside back cover page including, but not necessarily limited to, the ative of the prospectus: following information: Contractow- (1) A statement that the SAI includes (a) Contract Benefits. Summarize the ner] additional information about the Registrant. benefits available under the Contract, Annual Mainte- Explain that the SAI and, if available, including death benefits, withdrawal and nance Fee personalized illustrations of death benefits, surrender benefits, and loans. Mortality and Ex- cash surrender values, and cash values, are (b) Contract Risks. Summarize the pense Risk available, without charge, upon request, and principal risks of purchasing a Contract, Fees explain how contractowners may make including the risks of poor investment Administrative inquiries about their Contracts. Provide a performance, that Contracts are unsuitable as Fees toll-free (or collect) telephone number for short-term savings vehicles, the risks of investors to call: to request the SAI and, if Contract lapse, limitations on access to cash * [Footnote: Include disclosure required by available, personalized illustrations; to value through withdrawals, and the Instruction 3(b).] request other information about the possibility of adverse tax consequences. VerDate 11 The next table describes the [Portfolio and does not obscure or impede maximum charges, and charges for a Company] fees and expenses that you will understanding of, the disclosure of the representative Contractowner with additional pay periodically during the time that you maximum charge. In addition, the Registrant disclosure immediately following the fee own the Policy. The table shows the may include in a footnote to the table a table. For example, the additional disclosure minimum and maximum fees and expenses tabular, narrative, or other presentation may include an explanation of the factors charged by any of the [Portfolio Companies]. providing further detail regarding variations that affect the cost of insurance or other More detail concerning each [Portfolio in the charge. For example, if deferred sales charge or tables showing the cost of Company’s] fees and expenses is contained charges decline over time, the Registrant may insurance or other charge for a spectrum of in the prospectus for each [Portfolio include in a footnote a presentation regarding representative Contractowners. Company]. the scheduled reductions in the deferred (c) ‘‘[Annual] Maintenance Fee’’ includes sales charges. Charges assessed on the basis any Contract, account, or similar fee imposed ANNUAL [PORTFOLIO COMPANY] of the face amount should be disclosed as the on any recurring basis. Any non-recurring OPERATING EXPENSES charge per $1000 of face amount. Contract, account, or similar fee should be 2. Transaction Fees. included in the ‘‘Transaction Fees’’ table. [Expenses that are deducted from [Portfolio (a) ‘‘Other Surrender Fees’’ include any (d) ‘‘Mortality and Expense Risk Fees’’ may Company] assets] fees charged for surrender or partial be listed separately on two lines in the table. surrender, other than sales charges imposed (e) If the Registrant (or any other party Minimum Maximum upon surrender or partial surrender. pursuant to an agreement with the Registrant) (b) ‘‘Transfer Fees’’ include any fees imposes any other recurring charge other Management charged for any transfer or exchange of cash than annual Portfolio Company Operating Fees ...... lll% lll% value from the Registrant to another Expenses, add another caption describing it Distribution [and/ investment company, from one sub-account and complete the other columns of the table or Service] of the Registrant to another sub-account or for that charge. (12b–1) Fees lll% lll% the Depositor’s general account, or from the 4. Annual [Portfolio Company] Operating Other Expenses lll% lll% Depositor’s general account to the Registrant. Expenses. (c) If the Registrant (or any other party (a) The Registrant may substitute the term Total An- pursuant to an agreement with the Registrant) used in the prospectus to refer to the nual charges any other transaction fee, add Portfolio Companies for the bracketed [Portfolio another caption describing it and complete portion of the caption provided. Company] the other columns of the table for that fee. (b) If a Registrant has multiple sub- Operating 3. Periodic Charges Other Than [Portfolio accounts, it should disclose the minimum Expenses lll% lll% Company] Operating Expenses. and maximum expenses of any Portfolio (a) The Registrant may substitute the term Companies for each line item. For example, Instructions. used in the prospectus to refer to the if a Registrant has five sub-accounts with 1. General. Portfolio Companies for the bracketed management fees of 0.50%, 0.70%, 1.00%, (a) Round all dollar figures to the nearest portion of the caption provided. 1.10%, and 1.25%, respectively, it should dollar and all percentages to the nearest (b) For ‘‘Cost of Insurance’’ and any other disclose that management fees range from hundredth of one percent. charges that depend on Contractowner 0.50% to 1.25%. The minimum and (b) Include the narrative explanations in characteristics, such as age or rating maximum amounts disclosed for ‘‘Total the order indicated. A Registrant may modify classification, the Registrant should disclose Annual [Portfolio Company] Operating a narrative explanation if the explanation the minimum and maximum charges that Expenses’’ should be the minimum and contains comparable information to that may be imposed for a Contract, and the maximum ‘‘Total Annual [Portfolio shown. charges that may be paid by a representative Company] Operating Expenses’’ for any (c) A Registrant may omit captions if the Contractowner, using appropriate sub- Portfolio Company, and not the sum of the Registrant does not charge the fees or captions. In a footnote to the table, disclose minimum and maximum amounts disclosed expenses covered by the captions. A (i) that the cost of insurance or other charge for the individual line items. For example, Registrant may modify or add captions if the varies based on individual characteristics; (ii) assume a Registrant has three sub-accounts. captions shown do not provide an accurate that the cost of insurance charge or other Sub-account 1 has management fees of description of the Registrant’s fees and charge shown in the table may not be 0.50%, 12b–1 fees of 0.25%, other expenses expenses. representative of the charge that a particular of 0.30%, and total expenses of 1.05%; sub- (d) If a Registrant uses one prospectus to Contractowner will pay; and (iii) how the account 2 has management fees of 0.90%, offer a Contract in both the group and Contractowner may obtain more information 12b–1 fees of 0.00%, other expenses of individual variable life markets, the about the particular cost of insurance or other 0.25%, and total expenses of 1.15%; and sub- Registrant may include narrative disclosure charges that would apply to him or her. account 3 has management fees of 1.00%, in a footnote or following the tables (i) In disclosing cost of insurance or other 12b–1 fees of 0.00%, other expenses of identifying markets where certain fees are charges that depend on Contractowner 0.25%, and total expenses of 1.25%. The either inapplicable or waived or lower fees characteristics for a representative minimum and maximum amounts to be are charged. In the alternative, a Registrant Contractowner, the Registrant should assume disclosed in the table are: management fees— may present the information for group and characteristics (e.g., sex, age, and rating 0.50%–1.00%; 12b–1 fees—0.00%–0.25%; individual contracts in another format classification) that are fairly representative of other expenses—0.25%–0.30%; total annual consistent with General Instruction C.3.(c). actual or expected Contract sales, and [Portfolio Company] operating expenses— (e) The ‘‘When Charge is Deducted’’ describe these characteristics in the sub- 1.05%–1.25%. The total annual [Portfolio column must be used to show when a charge caption for the charge (e.g., ‘‘charge for a 40- Company] operating expenses are the is deducted, e.g., upon purchase, surrender year-old non-smoking female’’). The rating expenses of sub-accounts 1 and 3, or partial surrender, policy anniversary, classification used for the representative respectively, not the sum of the minimum monthly, or daily. Contractowner should be the classification and maximum amounts disclosed for the (f) Under the ‘‘Amount Deducted’’ column, with the greatest number of outstanding individual line items, which would be the Registrant must disclose the maximum Contracts (or expected Contracts in the case 0.75%–1.55%. guaranteed charge unless a specific of a new Contract), unless this rating (c)‘‘Management Fees’’ include investment instruction directs otherwise. The Registrant classification is not fairly representative of advisory fees (including any fees based on a should include the basis on which the charge actual or expected Contract sales. In this Portfolio Company’s performance), any other is imposed (e.g., 0.95% of average daily net case, the Registrant should use a commonly management fees payable to a Portfolio assets, $5 per exchange, $5 per thousand used rating classification that is fairly Company’s investment adviser or its dollars of face amount). The Registrant may representative of actual or expected Contract affiliates, and administrative fees payable to disclose the current charge, in addition to the sales. a Portfolio Company’s investment adviser or maximum charge, if the disclosure of the (ii) The Registrant may supplement this its affiliates that are not included as ‘‘Other current charge is no more prominent than, disclosure of the minimum charges, Expenses.’’ VerDate 11 (d) ‘‘Distribution [and/or Service] (12b–1) or fee waiver arrangement is expected to (1) Its name; Fees’’ include all distribution or other continue, or whether it can be terminated at (2) Its type (e.g., money market fund, bond expenses incurred during the most recent any time at the option of a Portfolio fund, balanced fund, etc.) or a brief statement fiscal year under a plan adopted pursuant to Company. concerning its investment objectives; and rule 12b–1 [17 CFR 270.12b–1]. (h) A Registrant may include additional (3) Its investment adviser and any sub- (e)(i)‘‘Other Expenses’’ include all tables showing annual operating expenses investment adviser. expenses not otherwise disclosed in the table separately for each Portfolio Company Instructions. that are deducted from a Portfolio Company’s immediately following the required table of 1. Do not describe sub-accounts that fund assets. The amount of expenses deducted ‘‘Annual [Portfolio Company] Operating obligations of the Depositor under contracts from a Portfolio Company’s assets are the Expenses.’’ The additional tables should be that are not offered by this prospectus. amounts shown as expenses in the Portfolio prepared in the format, and in accordance 2. Registrants are not required to include Company’s statement of operations with the Instructions, prescribed in Item 3 of detailed information about Portfolio (including increases resulting from Form N–1A [17 CFR 239.15A; 17 CFR Companies in the prospectus. If a Portfolio complying with paragraph 2(g) of rule 6–07 274.11A] for disclosing ‘‘Annual Fund Company’s name describes its type, a of Regulation S–X [17 CFR 210.6–07]). Operating Expenses.’’ Registrant need not separately provide the (ii)‘‘Other Expenses’ do not include 5. New Registrants. For purposes of this Portfolio Company’s type or a statement extraordinary expenses as determined under Item, a ‘‘New Registrant’’ is a Registrant (or concerning its investment objectives. generally accepted accounting principles (see sub-account of the Registrant) that does not (d) Portfolio Company Prospectus. State Accounting Principles Board Opinion No. include in Form N–6 financial statements conspicuously how investors may obtain a 30). If extraordinary expenses were incurred reporting operating results or that includes prospectus and, if available, a fund profile, by any Portfolio Company that would, if financial statements for the Registrant’s (or containing more complete information on included, materially affect the minimum or sub-account’s) initial fiscal year reporting each Portfolio Company. maximum amounts shown in the table, operating results for a period of 6 months or (e) Voting. Concisely discuss the rights of disclose in a footnote to the table what the less. The following Instructions apply to New Contractowners to instruct the Depositor on minimum and maximum ‘‘Other Expenses’’ Registrants. the voting of shares of the Portfolio would have been had the extraordinary (a) Base the percentages in ‘‘Annual Companies, including the manner in which [Portfolio Company] Operating Expenses’’ on expenses been included. votes will be allocated. (f)(i) Base the percentages of ‘‘Annual payments that will be made, but include in [Portfolio Company] Operating Expenses’’ on expenses amounts that will be incurred Item 5. Charges amounts incurred during the most recent without reduction for expense (a) Description. Briefly describe all charges fiscal year, but include in expenses amounts reimbursement or fee waiver arrangements, deducted from premiums, cash value, assets that would have been incurred absent estimating amounts of ‘‘Other Expenses.’’ of the Registrant, or any other source (e.g., expense reimbursement or fee waiver Disclose in a footnote to the table that ‘‘Other sales loads, premium and other taxes, arrangements. If a Portfolio Company has a Expenses’’ are based on estimated amounts administrative and transaction charges, risk fiscal year different from that of the for the current fiscal year. charges, contract loan charges, cost of (b) A New Registrant may reflect in a Registrant, base the expenses on those insurance, and rider charges). Indicate footnote to the table expense reimbursement incurred during either the period that whether each charge will be deducted from or fee waiver arrangements that are expected corresponds to the fiscal year of the premium payments, cash value, the to reduce any minimum or maximum Registrant, or the most recently completed Registrant’s assets, the proceeds of [Portfolio Company] operating expense or the fiscal year of the Portfolio Company. If the withdrawals or surrenders, or some other estimate of minimum or maximum ‘‘Other Registrant or a Portfolio Company has source. When possible, specify the amount of Expenses’’ (regardless of whether the changed its fiscal year and, as a result, the any charge as a percentage or dollar figure arrangement has been guaranteed). If the New most recent fiscal year is less than three (e.g., 0.95% of average daily net assets, $5 per Registrant provides this disclosure, also exchange, $5 per thousand dollars of face months, use the fiscal year prior to the most disclose the period for which the expense recent fiscal year as the basis for determining reimbursement or fee waiver arrangement is amount). For recurring charges, specify the ‘‘Annual [Portfolio Company] Operating expected to continue, or whether it can be frequency of the deduction (e.g., daily, Expenses.’’ terminated at any time at the option of a monthly, annually). Identify the person who (ii) If there have been any changes in Portfolio Company. receives the amount deducted, briefly ‘‘Annual [Portfolio Company] Operating explain what is provided in consideration for Expenses’’ that would materially affect the Item 4. General Description of Registrant, the charges, and explain the extent to which information disclosed in the table: Depositor, and Portfolio Companies any charge can be modified. Where it is (A) Restate the expense information using Concisely discuss the organization and possible to identify what is provided in the current fees as if they had been in effect operation or proposed operation of the consideration for a particular charge (e.g., use during the previous fiscal year; and Registrant. Include the information specified of sales load to pay distribution costs, use of (B) In a footnote to the table, disclose that below. cost of insurance charge to pay for insurance the expense information in the table has been (a) Depositor. Provide the name and coverage), please explain what is provided in restated to reflect current fees. address of the Depositor. consideration for that charge separately. (iii) A change in ‘‘Annual [Portfolio (b) Registrant. Briefly describe the Instructions. Company] Operating Expenses’’ means either Registrant. Include a statement indicating 1. Describe the sales loads applicable to the an increase or a decrease in expenses that that: Contract and how sales loads are charged and occurred during the most recent fiscal year or (1) Income, gains, and losses credited to, or calculated, including the factors affecting the that is expected to occur during the current charged against, the Registrant reflect the computation of the amount of the sales load. fiscal year. A change in ‘‘Annual [Portfolio Registrant’s own investment experience and If the Contract has a front-end sales load, Company] Operating Expenses’’ does not not the investment experience of the describe the sales load as a percentage of the include a decrease in operating expenses as Depositor’s other assets; applicable measure of premium payments a percentage of assets due to economies of (2) The assets of the Registrant may not be (e.g., actual premiums paid, target or scale or breakpoints in a fee arrangement used to pay any liabilities of the Depositor guideline premiums). For Contracts with a resulting from an increase in a Portfolio other than those arising from the Contracts; deferred sales load, describe the sales load as Company’s assets. and a percentage of the applicable measure of (g) A Registrant may reflect minimum and (3) The Depositor is obligated to pay all premium payments (or other basis) that the maximum actual [Portfolio Company] amounts promised to Contractowners under deferred sales load may represent. operating expenses that include expense the Contracts. Percentages should be shown in a table. reimbursement or fee waiver arrangements in (c) Portfolio Companies. Briefly describe Identify any events on which a deferred sales a footnote to the table. If the Registrant the Registrant’s sub-accounts and each load is deducted (e.g., surrender, partial provides this disclosure, also disclose the Portfolio Company. For each Portfolio surrender, increase or decrease in face period for which the expense reimbursement Company, include: amount). The description of any deferred VerDate 11 sales load should include how the deduction (2) Who, if anyone, must approve any credited to the Contract’s cash value in the will be allocated among sub-accounts of the change (e.g., the Contractowner or the sub-accounts, and the basis (e.g., Registrant and when, if ever, the sales load Commission); and accumulation unit value) on which will be waived (e.g., if the Contract provides (3) Who, if anyone, must be notified of any premiums are credited; a free withdrawal amount). change. (2) An explanation, to the extent 2. Identify the factors that determine the Instruction. Describe only those changes applicable, that premiums are credited to the applicable cost of insurance rate. Specify that would be material to a purchaser of the Contract’s cash value on the basis of the sub- whether the mortality charges guaranteed in Contracts, such as a reservation of the right account valuation next determined after the contracts differ from the current charges. to deregister the Registrant under the receipt of a premium; Identify the factors that affect the amount at Investment Company Act. Do not describe Instruction. If, in any case, a delay occurs risk, including investment performance, possible non-material changes, such as between the receipt of premiums and the payment of premiums, and charges. Disclose changing the time of day at which Contract crediting of premiums to the sub-accounts how the cost of insurance charge is values are determined. (e.g., a delay during the ‘‘free-look’’ period), calculated based on the cost of insurance (d) Other Benefits. Identify any other describe where the premiums are held in the rate, amount at risk, and any other applicable material incidental benefits in the Contracts. interim. factors. If the Depositor intends to use (e) Class of Purchasers. Disclose any (3) An explanation of when valuations of simplified underwriting or other limitations on the class or classes of the assets of the sub-accounts are made; and underwriting methods that would cause purchasers to whom the Contracts are being (4) A statement identifying in a general healthy individuals to pay higher cost of offered. manner any national holidays when sub- account assets will not be valued and insurance rates than they would pay under Item 7. Premiums a substantially similar policy that is offered specifying any additional local or regional by the Depositor using different underwriting (a) Purchase Procedures. Describe the holidays when sub-account assets will not be provisions of the Contract that relate to methods, state that the cost of insurance rates valued. premiums and the procedures for purchasing are higher for healthy individuals when this Instruction. In responding to this a Contract, including: method of underwriting is used than under paragraph, a Registrant may use a list of (1) The minimum initial and subsequent the substantially similar policy. specific days or any other means that premiums required and any limitations on 3. If the Contract’s charge for premium or effectively communicates the information the amount and the frequency of premiums (e.g., explaining that sub-account assets will other taxes varies according to jurisdiction, that will be accepted. If there are separate identification of the range of current not be valued on the days on which the New limits for each sub-account, state these limits; York Stock Exchange is closed for trading). premium or other taxes is sufficient. (2) Whether required premiums, if any, are 4. Identify charges that may be different in payable for the life of the Contract or some Item 8. Death Benefits and Contract Values amount or method of computation when other term; (a) Death Benefits. Briefly describe the imposed in connection with, or subsequent (3) Whether payment of certain levels of death benefits available under the Contract. to, increases in face amount of a Contract and premiums will guarantee that the Contract Instruction. Include: briefly describe the differences. will not lapse regardless of the Contract’s (i) When insurance coverage is effective; (b) Portfolio Company Charges. State that cash value; (ii) When the death benefit is calculated charges are deducted from and expenses paid (4) If applicable, under what circumstances and payable; out of the assets of the Portfolio Companies premiums may be required in order to avoid (iii) How the death benefit is calculated; that are described in the prospectuses for lapse and how the amount of the additional (iv) Who has the right to choose the form those companies. premiums will be determined; of benefit and the procedure for choosing the (c) Incidental Insurance Charges. If (5) If applicable, under what circumstances form of benefit, including when the choice is incidental insurance benefits (as defined in nonpayment of a required premium will not made and whether the choice is revocable; Rules 6e–2 and 6e–3(T) [17 CFR 270.6e–2, 17 cause the Contract to lapse; (v) The forms the benefit may take and the CFR 270.6e–3(T)]) are offered along with the (6) If applicable, under what circumstances form of benefit that will be provided if a Contract, state that charges also will be made premiums in addition to the required particular form has not been elected; and for those benefits. premiums will be permitted; and (vi) Whether there is a minimum death Item 6. General Description of Contracts (7) If applicable, whether the level of the benefit guarantee associated with the Contract’s required premiums may change Contract. (a) Contract Rights. Identify the person or and, if so, how the amount of the change will Also describe if and how a Contractowner persons (e.g., the Contractowner, insured, or be determined. may increase or decrease the face amount, beneficiary) who have material rights under (b) Premium Amount. Briefly describe the including the minimum and the maximum the Contracts, and the nature of those rights. factors that determine the amount of any amounts, any requirement of additional (b) Contract Limitations. Briefly describe required premiums (e.g., face amount, death evidence of insurability, and whether any provisions for and limitations on: benefit option, and charges and expenses). charges, including sales load, are affected. (1) Allocation of premiums among sub- (c) Premium Payment Plans. Identify the (b) Charges and Contract Values. Explain accounts of the Registrant; premium payment plans available. Include how the investment performance of the (2) Transfer of Contract values between the available payment frequencies, payment Portfolio Companies, expenses, and sub-accounts of the Registrant; and facilities such as employee payroll deduction deduction of charges affect Contract values (3) Conversion or exchange of Contracts for plans and preauthorized checking and death benefits. another contract, including a fixed or arrangements, and any special billing variable annuity or life insurance contract. arrangements. Indicate whether the premium Item 9. Surrenders, Partial Surrenders, and Instruction. In discussing conversion or payment plan or schedule may be changed. Partial Withdrawals exchange of Contracts, the Registrant should (d) Premium Due Dates. Briefly explain the (a) Surrender. Briefly describe how a include any time limits on conversion or provisions of the Contract that relate to Contractowner can surrender a Contract, exchange, the name of the company issuing premium due dates and the operation of any including any limits on the ability to the other contract and whether that company grace period, including the effect of the surrender, how the proceeds are calculated, is affiliated with the issuer of the Contract, insured’s death during the grace period. and when they are payable. and how the cash value of the Contract will (e) Automatic Premium Loans. If (b) Partial Surrender and Withdrawal. be affected by the conversion or exchange. applicable, briefly describe the circumstances Indicate generally whether and under what (c) Contract or Registrant Changes. Briefly under which required premiums may be paid circumstances partial surrenders and partial describe the changes that can be made in the by means of an automatic premium loan. withdrawals are available under a Contract, Contracts or the operations of the Registrant (f) Sub-Account Valuation. Describe the including the minimum and maximum by the Registrant or the Depositor, including: procedures for valuing sub-account assets, amounts that may be surrendered or (1) Why a change may be made (e.g., including: withdrawn, any limits on their availability, changes in applicable law or interpretations (1) An explanation of when the required how the proceeds are calculated, and when of law); premiums and additional premiums are the proceeds are payable. VerDate 11 (c) Effect of Partial Surrender and (d) Reinstatement. State under what Part B: Information Required in a Withdrawal. Briefly describe whether partial circumstances a Contract may be Statement of Additional Information surrenders or partial withdrawals will affect reinstated. Explain any requirements for a Contract’s cash value or death benefit and reinstatement, including charges to be Item 15. Cover Page and Table of whether any charge(s) will apply. Contents (d) Sub-Account Allocation. Describe how paid by the Contractowner, outstanding partial surrenders and partial withdrawals loan repayments, and evidence of (a) Front Cover Page. Include the will be allocated among the sub-accounts. insurability. following information on the outside Instruction. The Registrant should front cover page of the SAI: generally describe the terms and conditions Item 12.Taxes (1) The Registrant’s name. that apply to these transactions. Technical (a) Tax Consequences. Describe the (2) The Depositor’s name. information regarding the determination of (3) A statement or statements: amounts available to be surrendered or material tax consequences to the withdrawn should be included in the SAI. Contractowner and beneficiary of (A) That the SAI is not a prospectus; (e) Revocation Rights. Briefly describe any buying, holding, exchanging, or (B) How the prospectus may be obtained; and revocation rights (e.g., ‘‘free-look’’ exercising rights under the Contract. provisions), including a description of how (C) Whether and from where the amount refunded is determined, the Instruction. Discuss the taxation of information is incorporated by reference method for crediting earnings to premiums death benefit proceeds, periodic and into the SAI, as permitted by General during the free-look period, and whether non-periodic withdrawals, loans, and Instruction D. investment options are limited during the any other distribution that may be Instruction. Any information free-look period. received under the Contract, as well as incorporated by reference into the SAI Item 10. Loans the tax benefits accorded the Contract must be delivered with the SAI. Briefly describe the loan provisions of the and other material tax consequences. (4) The date of the SAI and of the Contract, including any of the following that Describe, if applicable, whether the tax prospectus to which the SAI relates. are applicable. consequences vary with different uses of (b) Table of Contents. Include under (a) Availability of Loans. A brief statement the Contract. appropriate captions (and subcaptions) that a portion of the Contract’s cash (b) Effect. Describe the effect, if any, a list of the contents of the SAI and, surrender value may be borrowed. when useful, provide cross-references to (b) Limitations. Any limits on availability of taxation on the determination of cash related disclosure in the prospectus. of loans (e.g., a prohibition on loans during values or sub-account values. the first contract year). Item 16. General Information and (c) Interest. A statement of the amount of Item 13. Legal Proceedings History interest charged on the loan and the amount of interest credited to the Contract in Describe any material pending legal (a) Depositor. Provide the date and connection with the loaned amount. proceedings, other than ordinary routine form of organization of the Depositor, (d) Effect on Cash Value and Death Benefit. litigation incidental to the business, to the name of the state or other A brief explanation that amounts borrowed which the Registrant, the Registrant’s jurisdiction in which the Depositor is under a Contract do not participate in a principal underwriter, or the Depositor organized, and a description of the Registrant’s investment experience and that general nature of the Depositor’s loans, therefore, can affect the Contract’s cash is a party. Include the name of the court value and death benefit whether or not the in which the proceedings are pending, business. loan is repaid. Also, a brief explanation that the date instituted, the principal parties Instruction. The description of the the cash surrender value and the death involved, a description of the factual Depositor’s business should be short proceeds payable will be reduced by the basis alleged to underlie the proceeding, and need not list all of the businesses amount of any outstanding Contract loan and the relief sought. Include similar in which the Depositor engages or plus accrued interest. information as to any legal proceedings identify the jurisdictions in which it (e) Procedures. The loan procedures, does business if a general description including how and when amounts borrowed instituted, or known to be contemplated, by a governmental (e.g., ‘‘life insurance’’ or ‘‘reinsurance’’) are transferred out of the Registrant and how is provided. and when amounts repaid are credited to the authority. Registrant. (b) Registrant. Provide the date and Instruction. For purposes of this form of organization of the Registrant Item 11. Lapse and Reinstatement requirement, legal proceedings are and the Registrant’s classification (a) Lapse. State when and under what material only to the extent that they are pursuant to Section 4 [15 U.S.C. 80a–4] circumstances a Contract will lapse. likely to have a material adverse effect (i.e., a separate account and a unit (b) Lapse Options. Describe briefly on the Registrant, the ability of the investment trust). any lapse options available. Indicate principal underwriter to perform its (c) History of Depositor and those that will not apply unless they are contract with the Registrant, or the Registrant. If the Depositor’s name was elected and those that will apply in the ability of the Depositor to meet its changed during the past five years, state absence of an election. Indicate whether obligations under the Contracts. its former name and the approximate the availability of any of the lapse date on which it was changed. If, at the options is limited. Item 14. Financial Statements request of any state, sales of contracts (c) Effect of Lapse. Describe briefly the If all of the required financial offered by the Registrant have been factors that will determine the amount statements of the Registrant and the suspended at any time, or if sales of of insurance coverage provided under contracts offered by the Depositor have Depositor (see Item 24) are not in the the available lapse options. Describe been suspended during the past five prospectus, state, under a separate concisely how the cash value, surrender years, briefly describe the reasons for caption, where the financial statements value, and death benefit will be and results of the suspension. Briefly determined. If these values and benefits may be found. Briefly explain how describe the nature and results of any will be determined in the same manner investors may obtain any financial bankruptcy, receivership, or similar as prior to lapse, a statement to that statements not in the Statement of proceeding, or any other material effect is sufficient. Additional Information. reorganization, readjustment, or VerDate 11 succession of Depositor during the past (c) The nature of the services premium loan could have on the five years. provided, and the basis of the Contract (e.g., how automatic premium (d) Ownership of Sub-Account Assets. compensation paid for the services for loans affect cash value). If 10 percent or more of the assets of any the Registrant’s last three fiscal years. sub-account are not attributable to (c) Other Service Providers. Item 19. Additional Information About Contracts or to accumulated deductions (1) Unless disclosed in response to Operation of Contracts and Registrant or reserves (e.g., initial capital paragraph (b) or another item of this (a) Incidental Benefits. To the extent contributed by the Depositor), state form, identify and state the principal not described in the prospectus, explain what percentage those assets are of the business address of any person who the manner in which the purchase or total assets of the Registrant. If the provides significant administrative or operation of other incidental benefits Depositor, or any other person business affairs management services for affects the exercise of rights and the controlling the assets, has any present the Registrant (e.g., an ‘‘Administrator,’’ determination of benefits under the intention of removing the assets from ‘‘Sub-Administrator,’’ ‘‘Servicing Contract such as whether the Contract the sub-account, so state. Agent’’), describe the services provided, or any rider provides for a change of (e) Control of Depositor. State the and the compensation paid for the insured or for all or a portion of the name of each person who controls the services. death benefit to be paid while the Depositor and the nature of its business. (2) State the name and principal insured is still alive. Instruction. If the Depositor is business address of the Registrant’s (b) Surrender and Withdrawal. To the controlled by another person that, in custodian and independent public extent not described in the prospectus, turn, is controlled by another person, accountant and describe generally the explain the Contract’s surrender and give the name of each control person services performed by each. withdrawal provisions. and the nature of its business. (3) If the Registrant’s assets are held (c) Material Contracts Relating to the by a person other than the Depositor, a Item 17. Services Registrant. Disclose any material commercial bank, trust company, or contract relating to the operation or (a) Expenses Paid by Third Parties. depository registered with the administration of the Registrant. Describe all fees, expenses, and costs of Commission as custodian, state the the Registrant that are to be paid by nature of the business of that person. Item 20. Underwriters persons other than the Depositor or the (4) If an affiliated person of the (a) Identification. Identify each Registrant, and identify those persons. Registrant or the Depositor, or an principal underwriter (other than the (b) Service Agreements. Summarize affiliated person of the affiliated person, Depositor) of the Contracts, and state its the substantive provisions of any acts as administrative or servicing agent principal business address. If the management-related service contract for the Registrant, describe the services principal underwriter is affiliated with that may be of interest to a purchaser of the person performs and the basis for the Registrant, the Depositor, or any the Registrant’s securities, under which remuneration. State, for the past three affiliated person of the Registrant or the services are provided to the Registrant, years, the total dollars paid for the Depositor, identify how they are unless the contract is described in services, and by whom. affiliated (e.g., the principal underwriter response to some other item of this Instruction. No disclosure need be is controlled by the Depositor). form. Indicate the parties to the given in response to paragraph (c)(4) of (b) Offering and Commissions. For contract, and the total dollars paid and this item for an administrative or each principal underwriter distributing by whom for each of the past three servicing agent who is also the Contracts of the Registrant, state: Depositor. years. (1) Whether the offering is Instructions. (5) If the Depositor is the principal continuous; and 1. The term ‘‘management-related underwriter of the Contracts, so state. service contract’’ includes any contract (2) the aggregate dollar amount of Item 18. Premiums with the Registrant to keep, prepare, or underwriting commissions paid to, and file accounts, books, records, or other (a) Administrative Procedures. the amount retained by, the principal documents required under federal or Discuss generally the Registrant’s underwriter for each of the Registrant’s state law, or to provide any similar administrative rules applicable to last three fiscal years. services with respect to the daily premium payments, to the extent that (c) Other Payments. With respect to administration of the Registrant, but they are not discussed in the any payments made by the Registrant to does not include the following: prospectus. an underwriter of or dealer in the (a) Any agreement with the Registrant Instruction. Examples include Contracts during the Registrant’s last to act as custodian or agent to information regarding any condition fiscal year, disclose the name and administer purchases and redemptions applicable to changes in premium address of the underwriter or dealer, the under the Contracts; and payment schedules, any limitations on amount paid and basis for determining (b) Any contract with the Registrant prepayments of premiums, any relevant that amount, the circumstances for outside legal or auditing services, or rules for classifying payments made surrounding the payments, and the contract for personal employment other than in response to a bill or in an consideration received by the entered into with the Registrant in the amount other than the amount billed Registrant. Do not include information ordinary course of business. for, etc. about: 2. In summarizing the substantive (b) Automatic Premium Loans. If the (1) Payments made through deduction provisions of any management-related contract provides an automatic from premiums paid at the time of sale service contract, include the following: premium loan option, describe the of the Contracts; or (a) The name of the person providing option, including the circumstances (2) Payments made from cash values the service; under which it will be used to pay a upon full or partial surrender of the (b) The direct or indirect required premium and whether, and Contracts or from an increase or relationships, if any, of the person with how, interest will be charged on the decrease in the face amount of the the Registrant, its Depositor, or its loan. Describe any effect not described Contracts. principal underwriter; and in the prospectus that an automatic Instructions. VerDate 11 1. Information need not be given assessed on increases in face amount, 6–07 of Regulation S–X [17 CFR 210.6– about the service of mailing proxies or including the procedures used following 07]; periodic reports of the Registrant. an increase in face amount to allocate (iii) An audited statement of cash 2. Information need not be given cash values and premium payments flows for the most recent fiscal year if about any service for which total between the original Contract and necessary to comply with generally payments of less than $5,000 were made incremental Contracts. accepted accounting principles; and during each of the Registrant’s last three (iv) Audited statements of changes in fiscal years. Item 22. Lapse and Reinstatement net assets conforming to the 3. Information need not be given To the extent that the prospectus does requirements of Rule 6–09 of Regulation about payments made under any not do so, describe the lapse and S–X [17 CFR 210.6–09] for the two most contract to act as administrative or reinstatement provisions of the recent fiscal years. servicing agent. Contract. Include a discussion of any (b) Depositor. Provide financial 4. If the payments were made under time limits that apply, how the charge statements of the Depositor. an arrangement or policy applicable to to reinstate is determined, and any other Instructions. dealers generally, describe only the conditions that apply to reinstatement. 1. Include, in a separate section, the arrangement or policy. Describe the features of any lapse financial statements and schedules of (d) Commissions to Dealers. State the options not described in the prospectus, the Depositor required by Regulation S– commissions paid to dealers as a including any factors that will X. If the Depositor would not have to percentage of premiums. determine the amount or duration of the prepare financial statements in insurance coverage, and the limitations accordance with generally accepted Item 21. Additional Information About accounting principles except for use in Charges and conditions on availability of each lapse option. Identify which contract this registration statement or other (a) Sales Load. Describe the method transactions (e.g., loans, partial registration statements filed on Forms that will be used to determine the sales withdrawals and surrenders, transfers) N–3, N–4, or N–6, its financial load on the Contracts offered by the are available while the Contract is statements may be prepared in accordance with statutory requirements. Registrant. continued under a lapse option. Indicate (b) Special Purchase Plans. Describe The Depositor’s financial statements when limits on contract transactions are any special purchase plans (e.g., group must be prepared in accordance with different from those that apply prior to life insurance plans) or methods that generally accepted accounting lapse. reflect scheduled variations in, or principles if the Depositor prepares elimination of, any applicable charges Item 23. Loans financial information in accordance (e.g., group discounts, waiver of (a) Loan Provisions. To the extent that with generally accepted accounting deferred sales loads for a specified the prospectus does not do so, explain principles for use by the Depositor’s percentage of cash value, investment of the loan provisions of the Contract. parent, as defined in Rule 1–02(p) of proceeds from another Contract, (b) Amount Available. State how the Regulation S–X [17 CFR 210.1–02(p)], in exchange privileges, employee benefit amount available for a policy loan is any report under sections 13(a) and plans, or the terms of a merger, calculated. 15(d) of the Securities Exchange Act [15 acquisition, or exchange offer made (c) Effect on Cash Value and Sub- U.S.C. 78m(a) and 78o(d)] or any pursuant to a plan of reorganization). Accounts. Describe how loans and loan registration statement filed under the Identify each class of individuals or repayments affect cash value and how Securities Act. transactions to which the plans or they are allocated among the sub- 2. All statements and schedules of the methods apply, including officers, accounts. Depositor required by Regulation S–X, directors, members of the board of (d) Interest. Describe how interest except for the consolidated balance managers, or employees of the accrues on the loan, when it is payable, sheets described in Rule 3–01 of Depositor, underwriter, Portfolio and how interest is treated if not paid. Regulation S–X [17 CFR 210.3–01], and Companies, or investment adviser to Explain how interest earned on the any notes to these statements or Portfolio Companies, and the amount of loaned amount is credited to the schedules, may be omitted from Part B the reductions, and state from whom Contract and allocated to the sub- and instead included in Part C of the additional information may be obtained. accounts. registration statement. If any of this For special purchase plans or methods (e) Other Effects. Describe any other information is omitted from Part B and that reflect variations in, or elimination effect not already described in the included in Part C, the consolidated of, charges other than according to a prospectus that a loan could have on the balance sheets included in Part B fixed schedule, describe the basis for the Contract (e.g., the effect of a Contract should be accompanied by a statement variation or elimination (e.g., the size of loan in excess of cash value). that additional financial information the purchaser, a prior existing about the Depositor is available, without relationship with the purchaser, the Item 24. Financial Statements charge, upon request. When a request purchaser’s assumption of certain (a) Registrant. Provide financial for the additional financial information administrative functions, or other statements of the Registrant. is received, the Registrant should send characteristics that result in differences Instruction. Include, in a separate the information within 3 business days in costs or services). section, the financial statements and of receipt of the request, by first-class (c) Underwriting Procedures. Briefly schedules required by Regulation S–X mail or other means designed to ensure identify underwriting procedures used [17 CFR 210]. Financial statements of equally prompt delivery. in connection with the Contract and any the Registrant may be limited to: 3. Notwithstanding Rule 3–12 of effect of different types of underwriting (i) An audited balance sheet or Regulation S–X [17 CFR 210.3–12], the on the charges in the Contract. Specify statement of assets and liabilities as of financial statements of the Depositor the basis of the mortality charges the end of the most recent fiscal year; need not be more current than as of the guaranteed in the Contracts. (ii) An audited statement of end of the most recent fiscal year of the (d) Increases in Face Amount. operations for the most recent fiscal year Depositor. In addition, when the Describe in more detail the charges conforming to the requirements of Rule anticipated effective date of a VerDate 11 registration statement falls within 90 Item 26. Illustrations values must be accompanied by days subsequent to the end of the fiscal The Registrant may, but is not corresponding cash surrender values. year of the Depositor, the registration required to, include a table of All illustrated values should be statement need not include financial hypothetical illustrations of death determined as of the end of the Contract statements of the Depositor more benefits, cash surrender values, and year. current than as of the end of the third cash values in either the prospectus or (g) Rates of Return. The Registrant fiscal quarter of the most recently the SAI. The following standards should should use gross rates of return of 0%, completed fiscal year of the Depositor be used to prepare any table of 6%, and one other rate not greater than unless the audited financial statements hypothetical illustrations that is 12%. Additional gross rates of return no for such fiscal year are available. The included in the prospectus or the SAI: greater than 12% may be used. Explain exceptions to Rule 3–12 of Regulation (a) Narrative Information. The that the gross rates of return used in the S–X contained in this Instruction 3 do illustrations should be preceded by a illustrations do not reflect the not apply when: clear and concise explanation, including deductions of the charges and expenses (i) The Depositor’s financial (i) a description of the expenses of the Portfolio Companies. statements have never been included in reflected in the illustrations; (ii) that the (h) Portfolio Company Charges. an effective registration statement under illustrations are based on assumptions Portfolio Company management fees the Securities Act of a separate account about investment returns and and other Portfolio Company charges that offers variable annuity contracts or Contractowner characteristics; (iii) the and expenses should be reflected using variable life insurance contracts; or circumstances under which actual the arithmetic average of those charges (ii) The balance sheet of the Depositor results for a particular purchaser of the and expenses incurred during the most at the end of either of the two most Contract would differ from the recent fiscal year for all of the available recent fiscal years included in response illustrations; and (iv) whether Portfolio Companies or any materially to this Item shows a combined capital personalized illustrations are available greater amount expected to be incurred and surplus, if a stock company, or an and, if available, how they may be during the current fiscal year. In unassigned surplus, if a mutual obtained. determining charges and expenses company, of less than $1,000,000; or (b) Headings. The headings should incurred during the most recent fiscal (iii) The balance sheet of the contain the following information: sex, year or expected to be incurred during Depositor at the end of a fiscal quarter age, rating classification (e.g., the current fiscal year, include amounts within 135 days of the expected date of nonsmoker, smoker, preferred, or that would have been incurred absent effectiveness under the Securities Act standard), premium amount and expense reimbursement or fee waiver (or a fiscal quarter within 90 days of payment schedule, face amount, and arrangements. filing if the registration statement is death benefit option. (i) Other Charges. Values should be filed solely under the Investment (c) Premiums, Ages. Premium illustrated using both current and Company Act) would show a combined amounts used in the illustrations should guaranteed maximum charges at the 0% capital and surplus, if a stock company, be representative of the actual or rate of return, the 6% rate of return, and or an unassigned surplus, if a mutual expected typical premium amount. The one other rate of return no greater than company, of less than $1,000,000. If two typical premium amount may be based 12%. Illustrated values should fiscal quarters end within the 135 day on the average or median premium accurately reflect all charges deducted period, the Depositor may choose either amount or some other reasonable basis under the Contract (e.g., mortality and for purposes of this test. that results in a typical premium expense risk, administrative, cost of Any interim financial statements amount that is fairly representative of insurance) as well as the actual timing required by this Item need not be actual or expected Contract sales. Ages of the deduction of those charges (e.g., comparative with financial statements used in the illustrations should be daily, monthly, annually). For example, for the same interim period of an earlier representative of actual or expected for a Contract with a mortality and year. Contract sales. expense risk charge that is deducted from sub-account assets at a given Item 25. Performance Data (d) Rating Classifications. Illustrations should be shown for the rating annual rate, the illustrated values will (a) Calculation. If the Registrant classification with the greatest number be lower if the charge is deducted from advertises any performance data, of outstanding Contracts (or expected assets on a daily basis rather than on a include an explanation of how Contracts in the case of a new Contract), monthly or annual basis. performance is calculated, whether the unless this rating classification is not (j) Additional Information. Subject to data reflects all charges, the nature of fairly representative of actual or the requirement set out in General any charges that are not reflected in the expected Contract sales. In this case, Instruction C.3.(b), additional data, and the effect on performance of illustrations should be shown for a information may be shown as part of the excluding those charges. If the commonly used rating classification that illustrations, provided that it is Registrant advertises its performance is fairly representative of actual or consistent with the standards of this calculated in more than one manner, expected Contract sales. Item 26. briefly explain the material differences (e) Years. Illustrated values should be Part C: Other Information between the calculations. provided for Contract years one through (b) Quotation. For each sub-account ten, for every five years beyond the Item 27. Exhibits for which the Registrant advertises any tenth Contract year, and for the year of Subject to General Instruction D performance data, furnish: Contract maturity. regarding incorporation by reference (1) a quotation of performance, (f) Illustrated Values. Death benefits and rule 483 under the Securities Act computed by each of the methods used and cash surrender values should be [17 CFR 230.483], file the exhibits listed in advertising; and illustrated at three rates of return and below as part of the registration (2) the length of and the last day in two levels of charges (described in statement. Letter or number the exhibits the period used in computing the paragraphs (g) and (i)). The Registrant in the sequence indicated and file quotation. may also illustrate cash values, but cash copies rather than originals, unless VerDate 11 otherwise required by rule 483. Reflect the filing date of the registration the sub-accounts were derived from the any exhibit incorporated by reference in statement. hypothetical gross rates of return, how the list below and identify the (k) Legal Opinion. An opinion and charges against sub-account assets were previously filed document containing consent of counsel regarding the legality deducted from the annual investment the incorporated material. of the securities being registered, stating returns of the sub-accounts, and how (a) Board of Directors Resolution. The whether the securities will, when sold, the periodic deductions for cost of resolution of the board of directors of be legally issued and represent binding insurance and other Contract charges the Depositor authorizing the obligations of the Depositor. were made to arrive at the illustrated establishment of the Registrant. (l) Actuarial Opinion. If illustrations values. Describe how the calculation (b) Custodian Agreements. All are included in the registration would differ for other years. statement as permitted by Item 26, an agreements for custody of securities and (n) Other Opinions. Any other opinion of an actuarial officer of the similar investments of the Registrant, opinions, appraisals, or rulings, and Depositor as to those illustrations including the schedule of remuneration. related consents relied on in preparing (c) Underwriting Contracts. indicating that: the registration statement and required Underwriting or distribution contracts (1) the illustrations of cash surrender by section 7 of the Securities Act [15 between the Registrant or Depositor and values, cash values, death benefits, and/ U.S.C. 77g]. a principal underwriter and agreements or any other values illustrated are between principal underwriters or the consistent with the provisions of the (o) Omitted Financial Statements. Depositor and dealers. Contract and the Depositor’s Financial statements omitted from Item (d) Contracts. The form of each administrative procedures; 24. Contract, including any riders or (2) the rate structure of the Contract (p) Initial Capital Agreements. Any endorsements. has not been designed, and the agreements or understandings made in (e) Applications. The form of assumptions for the illustrations consideration for providing the initial application used with any Contract (including sex, age, rating classification, capital between or among the Registrant, provided in response to (d) above. and premium amount and payment Depositor, underwriter, or initial (f) Depositor’s Certificate of schedule) have not been selected, so as Contractowners and written assurances Incorporation and By-Laws. The to make the relationship between from the Depositor or initial Depositor’s current certificate of premiums and benefits, as shown in the Contractowners that purchases were incorporation or other instrument of illustrations, appear to be materially made for investment purposes and not organization and by-laws and any more favorable than for any other with the intention of redeeming or related amendment. prospective purchaser with different reselling. (g) Reinsurance Contracts. Any assumptions; and contract of reinsurance related to a (3) the illustrations are based on a (q) Redeemability Exemption. Contract. commonly used rating classification and Disclosure (if not provided elsewhere in (h) Participation Agreements. Any premium amounts and ages appropriate the registration statement) of insurance participation agreement or other for the markets in which the Contract is procedures for which the Registrant and contract relating to the investment by sold. Depositor claim any exemption the Registrant in a Portfolio Company. (m) Calculation. If illustrations are pursuant to rule 6e–2(b)(12)(ii) or rule (i) Administrative Contracts. Any included in the registration statement as 6e–3(T)(b)(12)(iii) under the Investment contract relating to the performance of permitted by Item 26, one sample Company Act. administrative services in connection calculation for each item illustrated, Item 28. Directors and Officers of the with administering a Contract. e.g., cash surrender value, cash value, Depositor (j) Other Material Contracts. Other and death benefits, showing how the material contracts not made in the illustrated values for the fifth Contract Provide the following information ordinary course of business to be year have been calculated. Demonstrate about each director or officer of the performed in whole or in part on or after how the annual investment returns of Depositor: (1) Name and Principal (2) Business Address Positions and Offices with Depositor Instruction. Registrants are required to Item 29. Persons Controlled by or Under power under the laws of which the provide the above information only for Common Control With the Depositor or company is organized. officers or directors who are engaged the Registrant Instructions. directly or indirectly in activities 1. Include the Registrant and the relating to the Registrant or the Provide a list or diagram of all Depositor in the list or diagram and Contracts, and for executive officers persons directly or indirectly controlled show the relationship of each company including the Depositor’s president, by or under common control with the to the Registrant and Depositor and to secretary, treasurer, and vice presidents Depositor or the Registrant. For any the other companies named, using who have authority to act as president person controlled by another person, cross-references if a company is in his or her absence. disclose the percentage of voting controlled through direct ownership of securities owned by the immediately its securities by two or more persons. controlling person or other basis of that 2. Indicate with appropriate symbols person’s control. For each company, subsidiaries that file separate financial also provide the state or other sovereign statements, subsidiaries included in consolidated financial statements, or VerDate 11 unconsolidated subsidiaries included in indemnified against any liability underwriter currently distributing the group financial statements. Indicate for incurred in his or her official capacity, Registrant’s securities also acts as a other subsidiaries why financial other than insurance provided by any principal underwriter, depositor, statements are not filed. underwriter or affiliated person for his sponsor, or investment adviser. or her own protection. Item 30. Indemnification (b) Management. Provide the State the general effect of any Item 31. Principal Underwriters information required by the following contract, arrangements, or statute under (a) Other Activity. State the name of table for each director, officer, or partner which any underwriter or affiliated each investment company (other than of each principal underwriter named in person of the Registrant is insured or the Registrant) for which each principal the response to Item 20: (1) (2) Name and Principal Business Address Positions and Offices with Underwriter Instruction. If a principal underwriter is the Depositor or an affiliate of the Depositor, and is also an insurance company, the above information for officers or directors need only be provided for officers or directors who are engaged directly or indirectly in activities relating to the Registrant or the Contracts, and for executive officers including the Depositor’s or its affiliate’s president, secretary, treasurer, and vice presidents who have authority to act as president in his or her absence. (c) Compensation From the Registrant. Provide the information required by the following table for all commissions and other compensation received, directly or indirectly, from the Registrant during the Registrant’s last fiscal year by each principal underwriter: (3) (1) (2) Compensation on Events (4) (5) Name of Principal Under- Net Underwriting Dis- Occasioning the Deduction Brokerage Commissions Other Compensation writer counts and Commissions of a Deferred Sales Load Instructions. by whom for the Registrant’s last three (Depositor) 1. Disclose the type of services fiscal years. By lllllllllllllllllll rendered in consideration for the Instructions. (Name of officer of Depositor) llllll compensation listed under column (5). 1. The instructions to Item 17 also (Title) 2. Exclude information about bona apply to this Item. Instruction. If the registration fide contracts with the Registrant or its 2. Exclude information about any statement is being filed only under the Depositor for outside legal or auditing service provided for payments totaling Securities Act or under both the services, or bona fide contracts for less than $5,000 during each of the Securities Act and the Investment personal employment entered into with Registrant’s last three fiscal years. Company Act, it should be signed by the Registrant or its Depositor in the Item 34. Fee Representation both the Registrant and the Depositor. If ordinary course of business. the registration statement is being filed Provide a representation of the 3. Exclude information about any only under the Investment Company Depositor that the fees and charges service for which total payments of less Act, it should be signed only by the deducted under the Contracts, in the than $5,000 were made during each of Registrant. the Registrant’s last three fiscal years. aggregate, are reasonable in relation to Pursuant to the requirements of the 4. Exclude information about the services rendered, the expenses Securities Act, this registration payments made under any agreement expected to be incurred, and the risks statement has been signed below by the whereby another person contracts with assumed by the Depositor. following persons in the capacities and the Registrant or its Depositor to Signatures on the dates indicated. perform as custodian or administrative (Signature) (Title) (Date) llllll or servicing agent. Pursuant to the requirements of (the Securities Act and) the Investment Dated: April 12, 2002. Item 32. Location of Accounts and Company Act, the Registrant (certifies By the Commission. Records that it meets all of the requirements for Margaret H. McFarland, State the name and address of each effectiveness of this registration Deputy Secretary. person maintaining physical possession statement under rule 485(b) under the Appendix A of each account, book, or other Securities Act and) has duly caused this document required to be maintained by registration statement to be signed on its [Note: Appendix A to the preamble will not section 31(a) [15 U.S.C. 80a30(a)] and behalf by the undersigned, duly appear in the Code of Federal Regulations] the rules under that section. authorized, in the City of llll, and Regulatory Flexibility Act Certification Item 33. Management Services State of llllon the day of llll, I, Harvey L. Pitt, Chairman of the Securities ll(Year) and Exchange Commission, on information Provide a summary of the substantive lllllllllllllllllllll and belief, hereby certify, pursuant to 5 provisions of any management-related Registrant U.S.C. 605(b), that Form N–6 and the related service contract not discussed in Part A By lllllllllllllllllll amendment to Form N–1A would not have or B, disclosing the parties to the (Signature and Title) a significant economic impact on a contract and the total amount paid and By lllllllllllllllllll substantial number of small entities. Form VerDate 11 N–6 would be used by insurance company The amendment to Form N–1A, the contracts and variable life insurance policies separate accounts registered as unit registration form for open-end management would already provide fee table information investment trusts that offer variable life investment companies, or mutual funds, to any issuer of variable annuity contracts or insurance policies for registration under the would eliminate the current exclusion from variable life insurance policies that includes Investment Company Act of 1940 and offer the fee table requirement of Form N–1A for such a mutual fund as an investment option, securities under the Securities Act of 1933. mutual funds that offer their shares in order for the issuer to include this Form N–6 generally would not have a exclusively as investment options for information in the prospectus for the variable variable annuity contracts and variable life significant economic impact on small annuity contract or variable life insurance insurance policies, and would require that policy. Accordingly, the amendment to Form entities. Few, if any, registered insurance these funds include a fee table in their N–1A would not have a significant economic company separate accounts have net assets of prospectuses. less than $50,000,000, when separate account Few, if any, small entities within the impact on a substantial number of small assets are aggregated with the assets of the definition provided in rule 0–10 under the entities. sponsoring insurance company. As a result, Investment Company Act of 1940 would be Dated: April 11, 2002. few, if any, small entities within the affected by the amendment to Form N–1A. Harvey L. Pitt, definitions contained in rule 0–10 under the Moreover, the economic impact of the Chairman. Investment Company Act and rule 157 under amendment would not be significant. A the Securities Act would be affected by Form mutual fund that offers its shares exclusively [FR Doc. 02–9457 Filed 4–22–02; 8:45 am] N–6. as investment options for variable annuity BILLING CODE 8010–01–P VerDate 11 Part IV Securities and Exchange Commission 17 CFR Parts 239 and 274 Disclosure of Costs and Expenses by Insurance Company Separate Accounts Registered as Unit Investment Trusts That Offer Variable Annuity Contracts; Proposed Rule VerDate 11 SECURITIES AND EXCHANGE Mobedshahi, Attorney, or Paul G. expenses for all of the Portfolio COMMISSION Cellupica, Assistant Director, (202) 942– Companies.5 Because variable life fees 0721, Office of Disclosure and Insurance and charges are complex, and because 17 CFR Parts 239 and 274 Product Regulation, Division of variable life policies frequently offer [Release Nos. 33–8087; IC–25521; File No. Investment Management, Securities and numerous Portfolio Companies as S7–07–02] Exchange Commission, 450 Fifth Street, investment options, we concluded that NW, Washington, DC 20549–0506. investors could be overwhelmed by RIN 3235–AI39 SUPPLEMENTARY INFORMATION: The information if the fees and charges for each Portfolio Company were required Disclosure of Costs and Expenses by Securities and Exchange Commission to be separately stated in the Form N– Insurance Company Separate (‘‘Commission’’) is proposing for 6 fee table.6 Accounts Registered as Unit comment amendments to Form N–4 [17 CFR 239.17b; 17 CFR 274.11c], the form In proposing Form N–6, we noted that Investment Trusts That Offer Variable we expected to reconsider the Annuity Contracts used by separate accounts organized as unit investment trusts and offering disclosure of Portfolio Company fees AGENCY: Securities and Exchange variable annuity contracts to register and charges in variable annuity Commission. under the Investment Company Act of prospectuses.7 We now believe that the ACTION: Proposed rule. 1940 [15 U.S.C. 80a–1 et seq.] approach adopted in Form N–6 to (‘‘Investment Company Act’’) and to disclosing the fees and expenses of SUMMARY: The Securities and Exchange offer their securities under the Portfolio Companies available through a Commission is proposing revisions to Securities Act of 1933 [15 U.S.C. 77a et variable life insurance policy may be the registration form for insurance seq.] (‘‘Securities Act’’). appropriate in the variable annuity company separate accounts that are context as well. Therefore, we are registered as unit investment trusts and I. Discussion proposing to amend the fee table of that offer variable annuity contracts. A. Disclosure of Range of Portfolio Form N–4 to require disclosure of the The proposed amendments would Company Expenses range of expenses for all of the Portfolio revise the format of the fee table to Companies offered through the separate Form N–4 is the registration form require disclosure of the range of account, rather than separate disclosure used by insurance company separate expenses for all of the mutual funds of the expenses of each Portfolio accounts organized as unit investment offered through the separate account, Company.8 trusts that offer variable annuity rather than disclosure of the expenses of We believe that use of a range of contracts to register under the each fund. These and other proposed Portfolio Company expenses is Investment Company Act and to register technical amendments to the fee table warranted in order to simplify fee tables their securities under the Securities Act. for variable annuity contracts, which will conform the treatment of fund Form N–4 requires that a prospectus for have grown longer and more complex. expenses in the registration form for a variable annuity contract include a fee As with variable life insurance policies, variable annuities to that in the table, similar to the fee table required by the number of investment options registration form for variable life Form N–1A for mutual funds.2 The fee available through a typical variable insurance policies that we are adopting table of Form N–4 requires disclosure of in a companion release today, and the annuity contract has expanded the costs and expenses that a variable 9 registration form used by mutual funds. annuity contractowner will bear, considerably in recent years. Variable DATES: Comments must be received on directly or indirectly. This includes the annuity fee tables have also become or before June 14, 2002. annual operating expenses for each more complicated in recent years ADDRESSES: Comments should be mutual fund in which a contractowner because insurers have increasingly submitted in triplicate to Jonathan G. may invest (‘‘Portfolio Company’’).3 offered variable annuity contracts with Katz, Secretary, Securities and Exchange Our proposed amendments would a variety of so-called ‘‘unbundled’’ Commission, 450 Fifth Street, NW, conform the treatment of Portfolio optional features, each of which has a 10 Washington, DC 20549–0609. Company expenses in Form N–4 to that separate charge. Comments also may be submitted in newly adopted Form N–6. The In addition, our proposed change will electronically at the following E-mail Commission has today adopted Form conform the treatment of Portfolio address: [email protected]. All N–6 for insurance company separate Company expenses in the fee table of comment letters should refer to File No. accounts that are registered as unit the variable annuity prospectus to that S7–07–02; this file number should be investment trusts and that offer variable in the fee table of the variable life included on the subject line if E-mail is life insurance policies, to be used by these separate accounts to register under 5 Form N–6 Adopting Release, supra note 4, at used. All comments received will be Section II.A.2., ‘‘Risk/Benefit Summary: Fee Table available for public inspection and the Investment Company Act and to (Item 3); Portfolio Company Fees and Charges.’’ copying in the Commission’s Public offer their securities under the 6 Id. Reference Room, 450 Fifth Street, NW, Securities Act.4 Unlike the fee table in 7 Investment Company Act Release No. 23066 Washington, DC 20549–0102. Form N–4, which requires disclosure of (March 13, 1998) [63 FR 13988, 13993 n. 48 (March the expenses for each Portfolio 23, 1998)] (Form N–6 Proposing Release). Electronically submitted comment 8 Company, the fee table of Form N–6 Proposed Item 3(a). letters also will be posted on the 9 Rick Carey, 9-Month Variable Annuity Sales Off Commission’s Internet site (http:// requires disclosure of the range of 20% From Last Year, National Underwriter Life & www.sec.gov).1 Health/Financial Services Edition, Dec. 3, 2001, at 2 FOR FURTHER INFORMATION CONTACT: Item 3(a) of Form N–4. 14 (estimating that average number of funds 3 Variable annuity separate accounts registered as available in a variable annuity contract increased Mark Cowan, Senior Counsel, Katy unit investment trusts are divided into sub- from five in 1988 to 33 in 2001). accounts, each of which invests in a different 10 Timothy C. Pfeifer, Growing Rider Use Furthers 1 We do not edit personal identifying information, Portfolio Company. Each contractowner selects the Flexibility But Also Complexity, National such as names or electronic mail addresses, from sub-accounts, and thus the Portfolio Companies, in Underwriter Life & Health/Financial Services electronic submissions. You should submit only which his or her account value is invested. Edition, Sept. 3, 2001, at 22 (describing growth in information that you wish to make available 4 Investment Company Act Release No. IC–25522 optional riders on both variable annuities and publicly. (April 12, 2002) (‘‘Form N–6 Adopting Release’’). variable life insurance). VerDate 11 insurance prospectus. We note that one more detail concerning Portfolio Expense Example. Currently, Form of the commenters on Form N–6 urged Company fees and expenses. N–4 requires the fee table to provide an that the Commission adopt a uniform We are also proposing to permit example of the cumulative amount of approach to disclosure of Portfolio registrants to continue to include separate account and Portfolio Company Company expenses in Form N–4 and disclosure of the fees and expenses for fees and expenses incurred over one, Form N–6. We agree with this each Portfolio Company in the fee table three, five, and ten year periods, based commenter’s argument that of Form N–4, in addition to the range of on a hypothetical investment of $1,000 requirements to report Portfolio expenses for the Portfolio Companies. and an annual 5% return.16 Expense Company expenses differently in This approach parallels the fee table of information in the example must be variable annuity and variable life Form N–6 and would provide shown for each Portfolio Company insurance registration statements would registrants with the flexibility to include offered through the contract.17 Because complicate the process of preparing this detailed information when they the proposed amendments to the Form registration statements without determine that it would be helpful, and N–4 fee table will require disclosure of improving the quality of disclosure.11 not overwhelming, to investors.14 the range of Portfolio Company We emphasize that investors in Like current Forms N–4 and N–1A, expenses, rather than the expenses for variable annuity contracts will continue and newly adopted Form N–6, the each Portfolio Company offered through to have access to information about the proposed amendments would require the contract, we are proposing to amend fees and expenses of each Portfolio line item disclosure of subcategories of the expense example and the Company. Prior to adoption of Form N– Portfolio Company expenses, including accompanying instructions, so that only 6, a mutual fund that offers its shares management fees, distribution (12b–1) an expense example based on the exclusively to insurance company fees, and other expenses, as well as total maximum expenses charged by any of separate accounts as investment options annual Portfolio Company operating the Portfolio Companies would be for variable life insurance policies and expenses. We request comment on required.18 An additional example, variable annuity contracts was whether this breakdown is appropriate based on the minimum expenses permitted to omit the fee table from its or whether there should be more or charged by any of the Portfolio prospectus.12 However, in connection fewer line items. We also request Companies, could also be provided.19 In with the adoption of Form N–6, we have comment on other alternatives to the lieu of providing examples based on the also amended Form N–1A, the form disclosure of Portfolio Company maximum and minimum expenses used by mutual funds to register under expenses in the fee table of Form N–4. charged by the Portfolio Companies the Investment Company Act and to B. Other Fee Table Changes To Conform offered through the contract, a registrant offer their securities under the would be permitted to include expense to Forms N–1A and N–6 Securities Act, to eliminate this examples for each of the Portfolio exclusion from the fee table requirement We are proposing other amendments Companies, as Form N–4 currently for mutual funds that offer their shares to conform the format and instructions requires.20 exclusively to separate accounts. for the fee table of Form N–4 more The proposed amendments would Because this exclusion has been closely to its counterparts in Forms N– also modify the format of the expense eliminated, investors in variable annuity 1A and N–6. These changes are example to conform to the format of the contracts will now have access to discussed below. information about the fees and expenses Expense Reimbursement and Fee Expenses’’ line of the fee table and would have to of each Portfolio Company in the Waiver Arrangements. We are proposing use appropriate descriptive captions. A footnote to 13 to require that Portfolio Company the fee table would be required to describe the prospectus for the Portfolio Company. contractual arrangement. Our proposed amendments to the fee operating expenses be disclosed before 16 Item 3(a) and Instruction 21 to Item 3(a) of table of Form N–4 would require a expense reimbursement and fee waiver Form N–4. statement referring investors to the arrangements. Expenses after 17 Instruction 5 to Item 3(a) of Form N–4. Portfolio Company prospectuses for reimbursement or waiver could be 18 Proposed Instruction 24(b) to Item 3(a). Under disclosed in a footnote.15 Form N–1A, the staff has permitted mutual funds with fees that are subject to a contractual limitation 11 Letter from Nationwide Life Insurance that requires reimbursement or waiver of expenses Company to Jonathan G. Katz, Secretary, Securities 14 Proposed Instruction 23 to Item 3(a); to take account of the reimbursement or waiver in and Exchange Commission (‘‘SEC’’) (June 29, 1998) Instruction 4(h) to Item 3 of Form N–6. calculating the example required by the fee table of (available in File No. S7–9–98). See also Letter from 15 Proposed Instructions 21(a) & 22 to Item 3(a). Item 3, but only for the duration of the contractual W. Thomas Conner, Vice President, Regulatory See Instructions 3(d)(i) and 3(e) to Item 3 of Form limitation. Funds may not assume that the Affairs, National Association for Variable N–1A; Instructions 4(f)(i) and 4(g) to Item 3 of Form reimbursement or waiver will continue for periods Annuities, to Paul F. Roye, Director, and Susan N–6. Under Form N–1A, the staff has permitted subsequent to the contractual limitation period in Nash, Senior Assistant Director, Division of mutual funds with fees that are subject to a calculating expenses shown in the example. Cf. Investment Management, SEC (Oct. 6, 1999) contractual limitation that requires reimbursement Letter from Barry D. Miller, Associate Director, (available in File No. S7–07–02) (recommending or waiver of expenses to add two lines to the fee Division of Investment Management, SEC, to Craig that Commission adopt range of Portfolio Company table: one line showing the amount of the S. Tyle, General Counsel, Investment Company expenses approach in Form N–4). reimbursement or waiver, and a second line Institute (Oct. 2, 1998) (permitting funds with fees 12 See Item 3 of Form N–1A; Investment Company showing the fund’s net expenses after subtracting that are subject to a contractual limitation that Act Release No. 16766 (Jan. 23, 1989) [54 FR 4772 the reimbursement or waiver from the total fund requires reimbursement or waiver to add two lines (Jan. 31, 1989)] (adopting Form N–4 fee table and operating expenses. See Letter from Barry D. Miller, to the fee table showing the amount of the eliminating the fee table requirement in Form N– Associate Director, Division of Investment reimbursement or waiver and total net expenses). 1A for Portfolio Companies offering shares Management, SEC, to Craig S. Tyle, General We intend that the staff construe the proposed exclusively to insurance company separate Counsel, Investment Company Institute (Oct. 2, amendments to the expense example requirements accounts); Investment Company Act Release No. 1998). We intend that the staff construe the of Form N–4, if adopted, consistent with the 16482 (July 15, 1988) [53 FR 27872, 27874 (July 25, proposed amendments to the fee table requirements approach it has taken with the expense example of 1988)] (proposing Form N–4 fee table and of Form N–4, if adopted, consistent with the the fee table of Form N–1A, to permit expense elimination of Form N–1A fee table requirement for approach taken under Form N–1A, to permit the examples to take into account contractual Portfolio Companies offering shares exclusively to addition of one line to the fee table showing the limitations on Portfolio Company operating insurance company separate accounts). range of net Portfolio Company operating expenses expenses that require reimbursement or waiver of 13 Investors in variable annuity contracts receive after taking account of contractual limitations that expenses, but only for the period of the contractual the prospectuses for both the separate account unit require reimbursement or waiver of expenses. This limitation. investment trust and the Portfolio Companies they additional line would be placed immediately under 19 Proposed Instruction 24(b) to Item 3(a). have selected. the ‘‘Total Annual [Portfolio Company] Operating 20 Id. VerDate 11 example in Form N–1A, by prescribing addition, we propose to delete the increasingly offered variable annuities that a narrative explanation precede the current instruction that permits the use with a variety of so-called ‘‘unbundled’’ example.21 The proposed amendments of subcategories under the caption for optional features, each of which has a also would increase the initial ‘‘Other Expenses’’ in the Portfolio specific charge.33 This trend toward hypothetical investment in the example Company expenses section of the fee unbundling of features and charges from $1,000 to $10,000, the amount table.28 We believe that these would make the task of separating out currently used in the expense example subcategories would have extremely those optional features that will be in Form N–1A.22 The increase reflects limited relevance in the context of a selected by a ‘‘typical’’ investor much the fact that the typical amount invested table showing the range of expenses for more difficult. We request comment on in a variable annuity far exceeds all Portfolio Companies because whether there should be any limitations $1,000,23 while still providing a round different Portfolio Companies would on the charges required to be disclosed figure that will facilitate an investor’s likely have different subcategories of in the fee table. computation of his or her own estimated ‘‘Other Expenses.’’ Requirement to Disclose Maximum We also propose to amend the expenses based on the investor’s actual Charges. The proposed amendments to instructions to clarify that a registrant investment. the fee table would add an instruction We request comment on alternative may modify or add captions in the fee requiring disclosure of the maximum formats for the expense example in table if the captions shown do not guaranteed charge for each item unless Form N–4. provide an accurate description of its a specific instruction directs Fee Table Narrative. Currently, Form fees and expenses, which parallels a otherwise.34 In addition, registrants N–4 requires a brief narrative similar instruction in the Form N–6 fee would be permitted, but not required, to immediately following the fee table, table.29 This instruction recognizes that, disclose current charges in the fee table explaining the purpose of the fee table following the enactment of the National and cross-referencing the Portfolio Securities Markets Improvement Act of so long as the current charge disclosure Company prospectuses.24 We propose to 1996, insurers have increased flexibility is no more prominent than, and does require narrative explanations to to structure variable annuity charges, not obscure or impede understanding of, precede each section of the fee table, in subject to a requirement that those the required maximum guaranteed order to better help investors charges be reasonable in the aggregate.30 charge disclosure. Registrants would understand the information about fees We request comment on whether the also be able to include in a footnote to and charges shown in that section. captions of the fee table of Form N–4 are the table a tabular, narrative, or other These would be similar to the narrative appropriate and whether additional presentation providing further detail explanations required by the Form N–6 captions or sub-captions should be regarding variations in a charge. This fee table.25 A registrant would be able to required. instruction parallels a similar 35 modify a narrative explanation if the Requirement to Disclose All Fees and instruction in Form N–6. We request explanation contains comparable Charges. Currently, the fee table of Form comment on this approach. information to that shown.26 We request N–4 requires that registrants disclose all II. General Request for Comments comment on whether the proposed transaction fees, whether or not a narrative explanations will be useful to specific caption is provided for a charge The Commission requests comment investors in understanding the types of in the fee table.31 We are proposing to on the proposed changes to Form N–4, fees and charges disclosed in the fee add an instruction, similar to an including suggested changes to related table. instruction in Form N–6, requiring provisions of rules and forms that the Fee Table Captions. The proposed registrants also to disclose all recurring Commission is not proposing to amend. amendments would add a caption to the fees and charges.32 We believe that Are there additional changes that we Portfolio Company expenses section of complete disclosure of all fees and should make to conform the Form N–4 the fee table for ‘‘Distribution [and/or charges that a contractowner may pay is fee table to the fee tables in Forms N– Service] (12b–1) Fees,’’ which includes appropriate. We are not aware of any 1A and N–6? any distribution and other expenses a mechanism to distinguish between Our proposed amendments are fund pays under a rule 12b–1 plan. This charges for optional features that ought intended to conform the fee tables of addition would reflect the increasing to be included in the fee table because Forms N–4 and N–6. If we adopt use of such plans in recent years by they are expected to be selected by most changes to our Form N–4 proposals in funds that serve as investment options or a majority of investors, or by response to comments, we intend to for variable annuity contracts.27 In ‘‘typical’’ investors, and charges for adopt conforming changes to Form N– optional features that are expected to be 6. We therefore request that commenters 21 Proposed Item 3(a). See Item 3 of Form N–1A. less popular and hence arguably could on our proposed amendments to the fee 22 Proposed Item 3(a). See Item 3 of Form N–1A. be omitted from the fee table. We note table of Form N–4 address how their 23 See R. James Doyle, VARDS, and Timothy that in recent years insurers have Pfeifer, Milliman USA, Inc., Variable Annuity comments would apply to the fee table Feature and Benefit Utilization Study 7–8 (Feb. of Form N–6, and whether a different 2002) (average initial premium for a variable Executive Officer, National Association for Variable approach to any aspect of fee and annuity contract is $61,411). Annuities (May 30, 1996) (describing issues raised expense disclosure is warranted in Form 24 General Instruction 1 to Item 3(a) of Form N– by use of 12b–1 plans by funds underlying variable 4. insurance products). N–6 because of the differences between 25 Proposed Item 3(a) and Proposed General 28 Instruction 17(b) to Item 3(a) of Form N–4. variable life insurance and variable Instruction 1 to Item 3(a). See Item 3 and 29 Proposed General Instruction 3 to Item 3(a). See annuities. We also request that Instruction 1(b) to Item 3 of Form N–6. Instruction 1(c) to Item 3 of Form N–6. commenters address the costs and 26 Proposed General Instruction 1 to Item 3(a). See 30 15 U.S.C. 80a-26; 15 U.S.C. 80a–27; National benefits of any conforming change that Instruction 1(b) to Item 3 of Form N–6. Securities Markets Improvement Act of 1996, Pub. 27 See Letter from Heidi Stam, Associate Director, L. No. 104–290 (1996), Section 205; S. Rep. No. 293, Division of Investment Management, SEC, to Gary 104th Cong., 2d Sess. 22 (1996); H. Rep. No. 622, 33 Timothy C. Pfeifer, Growing Rider Use Furthers Hughes, Chief Counsel, Securities and Banking, 104th Cong., 2d Sess. 45–46 (1996). Flexibility But Also Complexity, supra note 10 American Council of Life Insurance, Paul Schott 31 Instruction 12 to Item 3(a) of Form N–4. (describing growth in optional riders). Stevens, General Counsel, Investment Company 32 Proposed Instruction 15 to Item 3(a). See 34 Proposed General Instruction 5 to Item 3(a). Institute, and Mark J. Mackey, President & Chief Instruction 3(e) to Item 3 of Form N–6. 35 See Instruction 1(f) to Item 3 of Form N–6. VerDate 11 they recommend we make to the fee reimbursement or waiver could be continue to have access to information table of Form N–6. disclosed in a footnote to the fee table. about the fees and expenses of each For purposes of the Small Business The proposed amendments would Portfolio Company in the prospectus for Regulatory Enforcement Fairness Act of also make other technical changes the Portfolio Company. The proposed 1996 [5 U.S.C. 801 et seq.], the conforming the format and the amendments would also modify the Commission also is requesting instructions for the fee table of Form N– expense example of the Form N–4 fee information regarding the potential 4 more closely to the fee tables in Forms table, consistent with the use of the effect of the proposed amendments to N–6 and N–1A. These amendments range of Portfolio Company expenses in include the following: the fee table. Form N–4 on the U.S. economy on an • annual basis. Commenters are requested Revising the expense example in The proposed amendments would to provide empirical data to support the fee table, to require only an example make other technical changes to the their views. based on the maximum expenses format and instructions of the fee table charged by any Portfolio Company, for of Form N–4, in order to improve III. Cost/Benefit Analysis purposes of consistency with disclosure transparency of the fees and charges that The Commission is sensitive to the of the range of Portfolio Company contractowners will pay, to make the costs and benefits imposed by its rules expenses in the fee table. Form N–4 fee table more consistent with • Making other modifications to the on affected persons and entities. its counterpart in Form N–6, and to format of the example, for purposes of reflect changes in the types of fees and Form N–4 is the registration form consistency with the format of the used by insurance company separate charges assessed by variable annuity expense example in Form N–1A. contracts since the fee table of Form N– accounts organized as unit investment • Prescribing narrative explanation to trusts that offer variable annuity 4 was adopted. We believe these precede each section of the fee table, in changes may improve disclosure of contracts to register under the order to help investors understand the Investment Company Act and to register variable annuity fees and expenses to information about fees and charges investors. It is difficult to quantify the their securities under the Securities presented in that section and thereby Act.36 Form N–4 requires that a effects of this improved disclosure, improve transparency of fee disclosure. though we note that the changes we are prospectus for a variable annuity • Requiring a caption in the fee table contract include a fee table showing the proposing are limited in nature. for 12b–1 distribution expenses, and The proposed amendments may also costs and expenses that a variable adding an instruction permitting annuity contractowner will bear, result in slightly reduced printing and registrants to modify or add captions in mailing costs to registrants. Disclosure directly or indirectly, including the the fee table, as appropriate. These annual operating expenses for each of the range of Portfolio Company changes would update the fee table of expenses rather than the expenses of mutual fund in which a contractowner Form N–4 to reflect the increased use of may invest (‘‘Portfolio Company’’). The each Portfolio Company may shorten 12b–1 plans by funds that serve as the typical variable annuity prospectus, proposed amendments would amend investment options for variable annuity the fee table in the prospectus of Form because disclosure of these expenses contracts and the increased flexibility sometimes comprises a full page, or N–4 to require registrants to disclose the provided to insurers by the National range of fees and expenses for all of the more, of a variable annuity Securities Markets Improvement Act of prospectus. 37 We do not expect that any Portfolio Companies offered, rather than 1996 in structuring variable annuity separately disclosing the fees and of the other changes in the proposed charges, and would conform the fee amendments would lengthen the expenses of each Portfolio Company. table of Form N–4 more closely to the Registrants would still be permitted to variable annuity prospectus, as these fee table of Form N–6. changes would largely affect the format include additional disclosure of the fees • Adding an instruction requiring in which fee and expense information is and expenses of each Portfolio Company disclosure of all recurring fees and to be presented, rather than the quantity offered through a sub-account of the charges other than annual Portfolio of information presented. Based on a registrant. Use of a range of Portfolio Company operating expenses, in order print run of 20,000 copies for a typical Company expenses is warranted in to improve transparency of fee variable annuity prospectus, and order to streamline and improve fee disclosure, and to make Form N–4 printing and mailing costs of $0.05 per tables for variable annuity contracts, consistent with Form N–6. which have grown increasingly longer • Adding an instruction requiring page, the reduction in printing and and more complex in recent years as the disclosure of maximum guaranteed mailing costs attributable to the number of investment options available charges for each item, but also proposed amendments may equal through a typical variable annuity $1,000 for a typical variable annuity permitting disclosure of current charges, 38 contract has expanded. Under the in order to improve transparency of fee contract. Based on an estimate of 520 proposed amendments, in order to treat disclosure, and to make Form N–4 variable annuity contracts currently Portfolio Company expense disclosure consistent with Form N–6. being actively marketed, therefore, these consistent with Form N–1A and Form A. Benefits 37 The proposed amendments would require a N–6, registrants would be also required registrant to include a statement referring investors to show total Portfolio Company annual We believe that the proposed to Portfolio Company prospectuses for more detail expenses without the effect of any fee amendments to Form N–4 will benefit concerning Portfolio Company fees and expenses. waiver or expense reimbursement investors by making the variable This required statement would not impose any annuity prospectus easier for investors additional disclosure burden on registrants, because arrangements, although expenses after the instructions to Form N–4 currently require a to understand. As noted above, similar cross-reference to the Portfolio Company 36 Under a variable annuity contract, purchase disclosure of a range of Portfolio prospectuses. See General Instruction 1 to Item 3(a) payments are invested in an insurer’s separate Company expenses should make fee of Form N–4. account created under state law and legally tables for variable annuity contracts, 38 These estimates are based on information segregated from the assets of the insurer’s general provided to the staff by an insurance company that account. The separate account offers the contract which have grown increasingly longer issues variable annuities of the typical print runs owner a number of investment options, which and more complex in recent years, of its prospectuses, and its printing and mailing generally consist of mutual funds. easier to understand. Investors will costs. VerDate 11 printing and postage savings could total burden for completing and filing Form table disclosure clearer and more $520,000 annually. 39 N–4. We expect that in preparing their understandable to investors. However, In addition, conforming the disclosure fee tables for Form N–4, registrants will we would not expect the proposed requirements for Portfolio Company still need to calculate each line item of amendments to have any significant expenses in variable annuity expenses for each Portfolio Company effect on competition and efficiency prospectuses to those in variable life offered through the contract, in order to because they would not change the prospectuses may simplify the process determine the minimum and maximum quantity of information about fees and of preparing registration statements for expenses of the Portfolio Companies. expenses that investors in variable some registrants, because frequently We also expect that the other proposed annuity contracts receive. Similarly, it is insurance companies that issue variable amendments modifying the format and unclear whether the proposed annuities also issue variable life instructions of the Form N–4 fee table amendments to Form N–4 will affect insurance.40 We believe that these cost to conform more closely to the fee tables capital formation. We request comment savings will be relatively small, of Form N–6 and Form N–1A will have on whether the proposed amendments, however. no net effect on the burden hours for if adopted, would promote efficiency, B. Costs completing and filing Form N–4, competition, and capital formation. because they will not require disclosure V. Paperwork Reduction Act Although the proposed amendments of any additional information by issuers. to the fee table of Form N–4 are limited The Commission requests comment Form N–4 contains ‘‘collection of and many of them are technical in on the costs and benefits of the information’’ requirements within the nature, they differ from the current proposed amendments to Form N–4, meaning of the Paperwork Reduction requirements of the fee table of Form N– including any benefits to investors Act of 1995 [44 U.S.C. 3501 et seq.], and 4, which have been in place since 1989. resulting from improved disclosure, and the Commission has submitted the Therefore, variable annuity issuers may estimates of the one-time cost burden to proposed collections of information to incur a one-time cost for training in apply the requirements of the proposed the Office of Management and Budget order for their personnel, particularly amendments to their existing variable for review in accordance with 44 U.S.C. lawyers and others who are responsible annuity prospectuses. Commenters 3507(d) and 5 CFR 1320.11. The title for for supervising the preparation of filings should provide analysis and empirical the collection of information is ‘‘Form on Form N–4, to review and analyze the data to support their views on the costs N–4 under the Investment Company Act disclosure requirements of the and benefits associated with this of 1940 and Securities Act of 1933, amendments to Form N–4. Because the proposal. Registration Statement of Separate proposed amendments would make Accounts Organized as Unit Investment mostly minor changes to the current IV. Effects on Efficiency, Competition, Trusts.’’ The information collection format of the Form N–4 fee table, and and Capital Formation requirements imposed by Form N–4 are would not require the disclosure of Section 2(c) of the Investment mandatory. Responses to the collection information that the current fee table Company Act, section 2(b) of the of information will not be kept does not require, we estimate that this Securities Act, and section 3(f) of the confidential. An agency may not cost will be fairly small. We lack data Securities Exchange Act of 1934 require conduct or sponsor, and a person is not necessary to make a more precise the Commission, when engaging in required to respond to, a collection of estimate of the cost resulting from the rulemaking that requires it to consider information unless it displays a amendments, but we estimate that this or determine whether an action is currently valid control number. cost will be approximately $500 for each consistent with the public interest, to Form N–4 (OMB Control No. 3235– insurance company that sponsors consider, in addition to the protection of 0318) was adopted pursuant to section separate accounts that are registered on investors, whether the action will 8(a) of the Investment Company Act [15 Form N–4 and issue variable annuity promote efficiency, competition, and U.S.C. 80a-8] and section 5 of the contracts that are actively being sold. capital formation.42 Securities Act [15 U.S.C. 77e]. The Further, we estimate that there are 94 The proposed amendments to Form purpose of Form N–4 is to meet the such insurance companies. 41 We N–4 are expected to have minimal registration and disclosure requirements therefore estimate the one-time cost effects on efficiency and competition of the Securities Act and Investment attributable to the proposed among issuers of variable annuity Company Act and to enable separate amendments to Form N–4 to be $47,000. insurance policies. If adopted, the accounts organized as unit investment We request comment on both the cost proposed amendments would revise the trusts that offer variable annuity estimate of $500 for each insurance fee table in the prospectus of Form N– contracts to provide investors with company affected, and the total cost 4 to require registrants to disclose the information necessary to evaluate an estimate of $47,000. range of expenses for all the Portfolio investment in a variable annuity We do not expect that the Companies offered through the separate contract. amendments to Form N–4 will result in account, rather than disclosing The Commission is proposing to any net effect on the aggregate hour separately the fees and expenses of each amend Form N–4 to conform the Portfolio Company. In addition, the disclosure of Portfolio Company 39 The estimate of 520 variable annuity contracts proposed amendments would make expenses in the fee table to the format is based on the number of contracts tracked by certain other technical changes to used in Form N–6, the registration form Morningstar, Inc. Morningstar, Principia Pro Plus, conform the format and instructions to for insurance company separate Variable Annuities/Life (Jan. 2002). the fee table of Form N–4 more closely accounts registered as unit investment 40 We estimate, based on an analysis of data from the EDGAR filing system for 2000 and 2001, that to its counterparts in Form N–6 and trusts that offer variable life insurance approximately two-thirds of insurers issuing Form N–1A. The proposed amendments policies. Under the proposed variable annuities also issue variable life insurance would allow fee table disclosure of amendments, registrants on Form N–4 policies. Portfolio Company expenses to be would be required to disclose only the 41 The estimate of the number of insurance companies issuing variable annuities is based on shorter, and would generally make fee range of the expenses for all of the the staff’s analysis of data from the EDGAR filing Portfolio Companies in which the system for 2000 and 2001. 42 15 U.S.C. 77b(b), 78c(f), and 80a–2(c). separate account invests. Variable VerDate 11 annuity investors would continue to performance of the functions of the VII. Statutory Authority have access to complete information agency, including whether the about the Portfolio Company fees and information will have practical utility; The amendments to Form N–4 are expenses because disclosure of the fees (ii) evaluate the accuracy of the being proposed pursuant to sections 5, and expenses for each Portfolio Commission’s estimate of burden of the 7, 8, 10, and 19(a) of the Securities Act [15 U.S.C. 77e, 77g, 77h, 77j, and 77s(a)] Company would be located in its proposed collection of information; (iii) and sections 8, 24, 30, and 38 of the prospectus under the requirements of determine whether there are ways to Investment Company Act [15 U.S.C. Form N–1A. In addition, registrants on enhance the quality, utility, and clarity 80a–8, 80a–24, 80a–29, and 80a–37]. Form N–4 would be required to disclose of the information to be collected; and Portfolio Company expenses in the fee (iv) evaluate whether there are ways to List of Subjects table prior to expense reimbursements minimize the burden of the collection of 17 CFR Part 239 and fee waiver arrangements, consistent information on those who are to with the approach adopted by the respond, including through the use of Reporting and recordkeeping Commission in Form N–1A and Form automated collection techniques or requirements, Securities. N–6. Registrants would be permitted to other forms of information technology. disclose expenses after reimbursement 17 CFR Part 274 or waiver in a footnote to the fee table. Persons submitting comments on the The proposed amendments would also collection of information requirements Investment companies, Reporting and make other technical changes in order to should direct the comments to the recordkeeping requirements, Securities. conform the format and instructions for Office of Management and Budget, Text of Proposed Amendments the fee table of Form N–4 to its Attention: Desk Officer for the counterparts in Form N–1A and Form Securities and Exchange Commission, For the reasons set out in the N–6. Office of Information and Regulatory preamble, the Commission proposes to The Commission estimates that there Affairs, Room 3208, New Executive amend Chapter II, Title 17 of the Code are 615 separate accounts offering Office Building, Washington, DC 20503, of Federal Regulations as follows. variable annuity contracts that are and should send a copy to Jonathan G. PART 239—FORMS PRESCRIBED registered with the Commission on Katz, Secretary, Securities and Exchange 43 UNDER THE SECURITIES ACT OF 1933 Form N–4. We estimate that Form N– Commission, 450 Fifth Street, NW, 4 requires approximately 219.8 hours Washington, DC 20549–0609, with for each post-effective amendment and 1. The general authority citation for reference to File No. S7–07–02. Request 298 hours for each initial registration Part 239 is revised to read as follows: for materials submitted to OMB by the statement, with total aggregate burden Commission with regard to this Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, hours of 284,379.20. 44 77z–2, 77sss, 78c, 78l, 78m, 78n, 78o(d), We do not expect that the collection of information should be in 78u–5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l, amendments to Form N–4 will result in writing, refer to File No. S7–07–02, and 79m, 79n, 79q, 79t, 80a–8, 80a–24, 80a–26, any net effect on the aggregate hour be submitted to the Securities and 80a–29, 80a–30, and 80a–37, unless burden for completing and filing Form Exchange Commission, 450 Fifth Street, otherwise noted. N–4. We expect that in preparing their NW, Washington, DC 20549, Attention: * * * * * fee tables for Form N–4, registrants will Records Management, Office of Filings still need to calculate each line item of and Information Services. OMB is PART 274—FORMS PRESCRIBED expenses for each Portfolio Company required to make a decision concerning UNDER THE INVESTMENT COMPANY offered through the contract, in order to the collection of information between 30 ACT OF 1940 determine the minimum and maximum and 60 days after publication of this expenses of the Portfolio Companies. release. Consequently, a comment to 2. The authority citation for Part 274 We also expect that the other proposed OMB is best assured of having its full is revised to read as follows: amendments modifying the format of effect if OMB receives it within 30 days Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, the Form N–4 fee table to conform more after publication of this release. 78c(b), 78l, 78m, 78n, 78o(d), 80a–8, 80a–24, closely to the fee tables of Form N–6 80a–26, and 80a–29, unless otherwise noted. and Form N–1A will have no net effect VI. Regulatory Flexibility Act Note: The text of Form N–4 does not and on the burden hours for completing and Certification these amendments will not appear in the filing Form N–4, because they will not Code of Federal Regulations. Pursuant to Section 605(b) of the require any additional information to be 3. Form N–4 (referenced in §§ 239.17b and Regulatory Flexibility Act [5 U.S.C. disclosed. 274.11c), Item 3(a), is amended by: We request your comments on the 605(b)], the Chairman of the a. Revising Item 3(a); accuracy of our estimate. Pursuant to 44 Commission has certified that the b. Revising Instructions: General U.S.C. 3506(c)(2)(B), the Commission proposed amendments to Form N–4 Instructions 1, 3, and 5; c. Removing the heading ‘‘Portfolio solicits comments to: (i) Evaluate would not, if adopted, have a significant economic impact on a substantial Company Annual Expenses’’ preceding whether the proposed collection of Instruction 15; information is necessary for the proper number of small entities. Few, if any, d. Removing Instructions 16 through 21; small entities are affected by Form N– e. Redesignating Instruction 15 as 43 See Proposed Collection; Comment Request 4. The Chairman’s certification, Instruction 16; (Extension of Form N–4) (Jan. 4, 2000) [65 FR 1934 including the reasons therefor, is f. Adding new Instruction 15; (Jan. 12, 2000)]. The estimate of the number of attached to this release as Appendix A. g. Adding the heading ‘‘Annual [Portfolio separate accounts was based on the staff’s analysis Company] Operating Expenses’’ to precede of filings it received on Form N–4 over a The Commission encourages written representative period. comment on the certification. newly redesignated Instruction 16; and 44 See id. The burden hours to complete an initial Commenters are asked to describe the h. Adding new Instructions 17 through 25, to read as follows: registration statement and a post-effective nature of any impact on small entities amendment on Form N–4 were based on a survey Form N–4 by the staff of nine issuers of variable annuity and provide empirical data to support contracts. the extent of the impact. * * * * * VerDate 11 Item 3. Synopsis Deferred Sales Load (as a llll% Separate Account Annual Ex- (a) Include the following information, in percentage of purchase penses (as a percentage of plain English under rule 421(d) under the payments or amount sur- average account value) Securities Act [17 CFR 430.421(d)]: rendered, as applicable). Mortality and Expense Risk The following tables describe the fees and Surrender Fees (as a per- llll% Fees ...... llll% expenses that you will pay when buying, centage of amount surren- Account Fees and Expenses llll% owning, and surrendering the contract. The dered, if applicable). Total Separate Account An- first table describes the fees and expenses Exchange Fee ...... llll% nual Expenses ...... llll% that you will pay at the time that you buy the contract, surrender the contract, or transfer The next table describes the fees and The next table describes the [portfolio cash value between investment options. State expenses that you will pay periodically company] fees and expenses that you will premium taxes may also be deducted. during the time that you own the contract, pay periodically during the time that you not including [portfolio company] fees and own the contract. The table shows the minimum and maximum fees and expenses Contractowner Transaction expenses. Expenses: charged by any of the [portfolio companies]. Sales Load Imposed on Pur- llll% More detail concerning each [portfolio chases (as a percentage of [Annual] Contract Fee ...... company’s] fees and expenses is contained in purchase payments). the prospectus for each [portfolio company]. Annual [Portfolio Company] Operating Expenses (expenses that are deducted from [portfolio company] assets) Management Fees ...... ll% – ll% Distribution [and/or Service] (12b-1) Fees ...... ll% – ll% Other Expenses ...... ll% – ll% Total Annual [Portfolio Company] Operating Expenses ...... ll% – ll% Example the Registrant must disclose the maximum of 0.30%, and total expenses of 1.05%; sub- This Example is intended to help you guaranteed charge, unless a specific account 2 has management fees of 0.90%, compare the cost of investing in the contract instruction directs otherwise. The Registrant 12b–1 fees of 0.00%, other expenses of with the cost of investing in other variable may disclose the current charge, in addition 0.25%, and total expenses of 1.15%; and sub- annuity contracts. to the maximum charge, if the disclosure of account 3 has management fees of 1.00%, The Example assumes that you invest the current charge is no more prominent 12b–1 fees of 0.00%, other expenses of $10,000 in the contract for the time periods than, and does not obscure or impede 0.25%, and total expenses of 1.25%. The indicated. The Example also assumes that understanding of, the disclosure of the minimum and maximum amounts to be your investment has a 5% return each year maximum charge. In addition, the Registrant disclosed in the table are: management fees— and assumes the maximum fees and expenses may include in a footnote to the table a 0.50%-1.00%; 12b–1 fees—0.00%-0.25%; of any of the [portfolio companies]. Although tabular, narrative, or other presentation other expenses: 0.25%-0.30%; total annual your actual costs may be higher or lower, providing further detail regarding variations [portfolio company] operating expenses— based on these assumptions, your costs in the charge. For example, if deferred sales 1.05%-1.25%. The total annual [portfolio would be: charges decline over time, the Registrant may company] operating expenses are the include in a footnote a presentation regarding expenses of sub-accounts 1 and 3, the scheduled reductions in the deferred respectively, not the sum of the minimum (1) If you surrender your contract at the end sales charges. and maximum amounts disclosed for the of the applicable time period: * * * * * individual line items, which would be 1 year 3 years 5 years 10 years 0.75%-1.55%. $l $l $l $l 15. If the Registrant (or any other party pursuant to an agreement with the Registrant) 18. ‘‘Management Fees’’ include (2) If you annuitize at the end of the imposes any other recurring charge other investment advisory fees (including any fees applicable time period: than annual portfolio company operating based on a portfolio company’s performance), 1 year 3 years 5 years 10 years expenses, add another caption describing it any other management fees payable to a $l $l $l $l and list the (maximum) amount or basis on portfolio company’s investment adviser or its (3) If you do not surrender your contract: which the charge is deducted. affiliates, and administrative fees payable to 1 year 3 years 5 years 10 years a portfolio company’s investment adviser or $l $l $l $l Annual [Portfolio Company] Operating its affiliates that are not included as ‘‘Other Expenses Expenses.’’ Instructions: * * * * * 19. ‘‘Distribution [and/or Service] (12b–1) 17. If a Registrant has multiple sub- Fees’’ include all distribution or other General Instructions accounts, it should disclose the minimum expenses incurred during the most recent 1. Include the narrative explanations in the and maximum expenses of any portfolio fiscal year under a plan adopted pursuant to order indicated. A Registrant may modify a companies for each line item. For example, rule 12b–1 [17 CFR 270.12b–1]. narrative explanation if the explanation if a Registrant has five sub-accounts with 20. (a) ‘‘Other Expenses’’ include all contains comparable information to that management fees of 0.50%, 0.70%, 1.00%, expenses not otherwise disclosed in the table shown. 1.10%, and 1.25%, respectively, it should that are deducted from a portfolio company’s assets. The amount of expenses deducted * * * * * disclose that management fees range from 0.50% to 1.25%. The minimum and from a portfolio company’s assets are the 3. A Registrant may omit captions if the maximum amounts disclosed for ‘‘Total amounts shown as expenses in the portfolio Registrant does not charge the fees or Annual [Portfolio Company] Operating company’s statement of operations (including expenses covered by the captions. A Expenses’’ should be the minimum and increases resulting from complying with Registrant may modify or add captions if the maximum ‘‘Total Annual [Portfolio paragraph 2(g) of rule 6–07 of Regulation S– captions shown do not provide an accurate Company] Operating Expenses’’ for any X [17 CFR 210.6–07]). description of the Registrant’s fees and portfolio company, and not the sum of the (b) ‘‘Other Expenses’’ do not include expenses. minimum and maximum amounts disclosed extraordinary expenses as determined under * * * * * for the individual line items. For example, generally accepted accounting principles (see 5. In the Contractowner Transaction assume a Registrant has three sub-accounts. Accounting Principles Board Opinion No. Expenses, [Annual] Contract Fee, and Sub-account 1 has management fees of 30). If extraordinary expenses were incurred Separate Account Annual Expenses tables, 0.50%, 12b–1 fees of 0.25%, other expenses by any portfolio company that would, if VerDate 11 included, materially affect the minimum or Expenses’’ remain the same in each year of without reduction for expense maximum amounts shown in the table, the 1-, 3-, 5-, and 10-year periods, except that reimbursement or fee waiver arrangements, disclose in a footnote to the table what the an adjustment may be made to reflect estimating amounts of ‘‘Other Expenses.’’ minimum and maximum ‘‘Other Expenses’’ reduced annual expenses resulting from Disclose in a footnote to the table that ‘‘Other would have been had the extraordinary completion of the amortization of initial Expenses’’ are based on estimated amounts expenses been included. organization expenses; for the current fiscal year. 21. (a) Base the percentages of ‘‘Annual (b) Assume deduction of the maximum (b) A New Registrant may reflect in a [Portfolio Company] Operating Expenses’’ on percentage amount of expenses shown under footnote to the table expense reimbursement amounts incurred during the most recent ‘‘Total Annual [Portfolio Company] or fee waiver arrangements that are expected fiscal year, but include in expenses amounts Operating Expenses,’’ and that this amount to reduce any minimum or maximum that would have been incurred absent remains the same in each year of the 1-, 3- [portfolio company] operating expense or the expense reimbursement or fee waiver , 5-, and 10-year periods, except that an arrangements. If a portfolio company has a adjustment may be made to reflect reduced estimate of minimum or maximum ‘‘Other fiscal year different from that of the annual expenses resulting from completion Expenses’’ (regardless of whether the Registrant, base the expenses on those of the amortization of initial organization arrangement has been guaranteed). If the New incurred during either the period that expenses. An additional example that Registrant provides this disclosure, also corresponds to the fiscal year of the assumes deduction of the minimum disclose the period for which the expense Registrant, or the most recently completed percentage amount of expenses shown under reimbursement or fee waiver arrangement is fiscal year of the portfolio company. If the ‘‘Total Annual [Portfolio Company] expected to continue, or whether it can be Registrant or a portfolio company has Operating Expenses’’ may also be provided, terminated at any time at the option of a changed its fiscal year and, as a result, the immediately following the required expense portfolio company. most recent fiscal year is less than three example based on maximum portfolio (c) Complete only the 1- and 3-year period months, use the fiscal year prior to the most company expenses. In lieu of providing the portions of the Example, and estimate any recent fiscal year as the basis for determining required example based on maximum [annual] contract fees collected. ‘‘Annual [Portfolio Company] Operating portfolio company expenses, a Registrant Expenses.’’ may include separate expense examples * * * * * based on the expenses of each portfolio (b) If there have been any changes in Dated: April 12, 2002. ‘‘Annual [Portfolio Company] Operating company; Expenses’’ that would materially affect the (c) Assume the maximum sales load that By the Commission. information disclosed in the table: may be deducted from purchase payments is Margaret H. McFarland, (i) Restate the expense information using deducted; Deputy Secretary. the current fees as if they had been in effect (d) For any breakpoint in any fee, assume during the previous fiscal year; and that the amount of the Registrant’s (and the Appendix A (ii) In a footnote to the table, disclose that portfolio company’s) assets remains constant [Note: Appendix A to the preamble will not the expense information in the table has been as of the level at the end of the most recently appear in the Code of Federal Regulations.] restated to reflect current fees. completed fiscal year; (c) A change in ‘‘Annual [Portfolio (e) Assume no exchanges or other Regulatory Flexibility Act Certification Company] Operating Expenses’’ means either transactions; I, Harvey L. Pitt, Chairman of the Securities an increase or a decrease in expenses that (f) Reflect any [annual] contract fee by occurred during the most recent fiscal year or dividing the total amount of [annual] contract and Exchange Commission, on information that is expected to occur during the current fees collected during the year that are and belief, hereby certify, pursuant to 5 fiscal year. A change in ‘‘Annual [Portfolio attributable to the contract offered by the U.S.C. 605(b), that the proposed amendments Company] Operating Expenses’’ does not prospectus by the total average net assets of to Form N–4, if adopted, would not have a include a decrease in operating expenses as all the sub-accounts in the separate account significant economic impact on a substantial a percentage of assets due to economies of that are attributable to the contract offered by number of small entities. scale or breakpoints in a fee arrangement the prospectus. Add the resulting percentage The proposed amendments to Form N–4, a resulting from an increase in a portfolio to ‘‘Separate Account Annual Expenses,’’ and registration form for insurance company company’s assets. assume that it remains the same in each year separate accounts that offer variable annuity 22. A Registrant may reflect minimum and of the 1-, 3-, 5-, and 10-year periods; contracts, would amend the fee table maximum actual [portfolio company] (g) Reflect any contingent deferred sales presentation in the prospectus of Form N–4 operating expenses that include expense load by assuming a complete surrender on to require disclosure of the range of annual reimbursement or fee waiver arrangements in the last day of the year; expenses for all portfolio companies in a footnote to the table. If the Registrant (h) Provide the information required in the which the separate account invests, rather provides this disclosure, also disclose the third section of the Example only if a sales than separate disclosure of the expenses of period for which the expense reimbursement load or other fee is charged upon a complete each portfolio company. or fee waiver arrangement is expected to surrender; and Few, if any, registered insurance company continue, or whether it can be terminated at (i) Include in the Example the information separate accounts have net assets of less than provided by the caption ‘‘If you annuitize at any time at the option of a portfolio $50,000,000, when separate account assets the end of the applicable time period’’ only company. are aggregated with the assets of the 23. A Registrant may include additional if the Registrant charges fees upon sponsoring insurance company. As a result, tables showing annual operating expenses annuitization that are different from those few, if any, small entities within the separately for each portfolio company charged upon surrender. definitions provided in Rule 0–10 under the immediately following the required table of 25. New Registrants. For purposes of this ‘‘Annual [Portfolio Company] Operating Item, a ‘‘New Registrant’’ is a Registrant (or Investment Company Act of 1940 and rule Expenses.’’ The additional tables should be sub-account of the Registrant) that does not 157 under the Securities Act of 1933 would prepared in the format, and in accordance include in Form N–4 financial statements be affected by the proposed amendments to with the Instructions, prescribed in Item 3 of reporting operating results or that includes Form N–4, if adopted. Accordingly, the Form N–1A [17 CFR 239.15A; 17 CFR financial statements for the Registrant’s (or proposed amendments would not have a 274.11A] for disclosing ‘‘Annual Fund sub-account’s) initial fiscal year reporting significant economic impact on a substantial Operating Expenses.’’ operating results for a period of 6 months or number of small entities. less. The following Instructions apply to New Dated: April 11, 2002. Example Registrants: Harvey L. Pitt, 24. For purposes of the Example in the (a) Base the percentages in ‘‘Annual Chairman. table: [Portfolio Company] Operating Expenses’’ on (a) Assume that the percentage amounts payments that will be made, but include in [FR Doc. 02–9456 Filed 4–22–02; 8:45 am] listed under ‘‘Separate Account Annual expenses amounts that will be incurred BILLING CODE 8010–01–U VerDate 11 Part V Securities and Exchange Commission 17 CFR Parts 229, 240 and 249 Acceleration of Periodic Report Filing Dates and Disclosure Concerning Website Access to Reports; Proposed Rule VerDate 11 SECURITIES AND EXCHANGE FOR FURTHER INFORMATION CONTACT: (that is, those that have been subject to COMMISSION Jeffrey J. Minton, Special Counsel, or the reporting requirements for a certain Elizabeth M. Murphy, Chief, Office of period of time) incorporate information 17 CFR Parts 229, 240 and 249 Rulemaking, at (202) 942–2910, Division from their Exchange Act reports into [Release No. 33–8089; 34–45741; File No. of Corporation Finance, U.S. Securities their registration statements under the S7–08–02] and Exchange Commission, 450 Fifth Securities Act. Investors purchasing Street, NW, Washington, DC 20549– securities in public offerings therefore RIN 3235–AI33 0312. also rely on Exchange Act disclosure. SUPPLEMENTARY INFORMATION: We are Generally, the rules adopted by the Acceleration of Periodic Report Filing Commission under the Exchange Act Dates and Disclosure Concerning proposing amendments to Item 101 2 of 3 require disclosure at quarterly and Website Access to Reports Regulation S–K under the Securities Act of 1933 (‘‘Securities Act’’),4 Forms annual intervals, with specified AGENCY: Securities and Exchange 5 6 significant events reported on a more 10–Q and 10–K under the Securities 12 Commission. Exchange Act of 1934 (‘‘Exchange current basis. Specifically, domestic issuers subject to the Exchange Act ACTION: Proposed rules. Act’’) 7 and Exchange Act Rules 12b–2,8 13a–10 9 and 15d–10.10 must, among other obligations, file the following reports:13 SUMMARY: We are proposing to • accelerate the filing of quarterly reports I. Introduction Annual reports on Form 10–K (or The U.S. system of federal securities Form 10–KSB in the case of small and annual reports under the Securities 14 15 Exchange Act of 1934 by domestic regulation is based on full and fair business issuers ); • Quarterly reports on Form 10–Q (or reporting companies that have a public disclosure. Congress, in enacting the Form 10–QSB in the case of small float of at least $75 million, that have federal securities laws, embraced full business issuers) for the first three been subject to the Exchange Act disclosure as the best way to permit the quarters of its fiscal year;16 and reporting requirements for at least 12 financial markets to allocate capital. For calendar months, and that previously this system to function most effectively, 12 See, for example, Exchange Act Rules 13a–1, have filed at least one annual report. We the markets must have access to 13a–11, 13a–13, 15d–1, 15d–11 and 15d–13 [17 propose to shorten the filing deadlines information that is clear, accurate, and CFR 240.13a–1, 13a–11, 13a–13, 15d–1, 15d–11 and for these companies from 45 to 30 timely. 15d–13]. calendar days after period end for The Exchange Act requires companies 13 Reporting companies that are foreign private to make information publicly available issuers, as defined in Exchange Act Rule 3b–4(c) [17 quarterly reports and from 90 to 60 CFR 240.3b–4(c)], are subject to different calendar days after fiscal year end for to investors on an ongoing basis to aid requirements for periodic reports. They are not annual reports. We also are proposing to in their investment and voting required to file quarterly reports. They file annual decisions.11 Moreover, seasoned issuers reports on Form 20–F [17 CFR 249.220f]. Instead of require companies subject to the current reporting on Form 8–K, foreign issuers accelerated filing deadlines to disclose provide reports on Form 6–K [17 CFR 249.306]. electronic submissions. You should submit only Certain Canadian issuers may file different reports in their annual reports where investors information that you wish to make available under the Multijurisdictional Disclosure System. can obtain access to company filings, publicly. 2 Foreign government issuers, as defined in Exchange including whether the company 17 CFR 229.101. Act Rule 3b–4(c), also are subject to different 3 provides access to its reports on Forms 17 CFR 229.10 et seq. reporting requirements. They file annual reports on 10–K, 10–Q and 8–K on its Internet 4 15 U.S.C. 77a et seq. Form 18–K [17 CFR 249.318]. Foreign private website, free of charge, as soon as 5 17 CFR 249.308a. issuers may elect to file the forms used by domestic 6 reasonably practicable, and in any event 17 CFR 249.310. reporting companies and then are subject to the 7 15 U.S.C. 78a et seq. same deadlines. on the same day as, those reports are 8 17 CFR 240.12b–2. 14 The term ‘‘small business issuer’’ is defined in electronically filed with or furnished to 9 17 CFR 240.13a–10. Exchange Act Rule 12b–2 as a U.S. or Canadian the Commission. 10 17 CFR 240.15d–10. issuer with less than $25 million in revenues and public float that is not an investment company. DATES: Comments should be received on 11 The following types of companies are subject to the obligation to provide information to the 15 Form 10–K (and Form 10–KSB [17 CFR or before May 23, 2002. secondary markets through reports filed with the 249.310b]) provides a comprehensive overview of ADDRESSES: Comments should be Commission: the reporting company on an annual basis. The submitted in triplicate to Jonathan G. A company that has registered a class of equity form consists of four parts (Form 10–KSB has three or debt securities under Section 12(b) of the parts, but the categories of required information are Katz, Secretary, Securities and Exchange Exchange Act [15 U.S.C. 78l(b)] so that the similar). Part I requires disclosure regarding the Commission, 450 Fifth Street, NW, securities can be listed and traded on a national company’s business, its properties, legal Washington, DC 20549. Comments also securities exchange; proceedings, and matters submitted to a security may be submitted electronically at the A company that has registered a class of equity holder vote. Part II requires disclosure regarding the securities under Section 12(g)(1) of the Exchange market for the company’s common equity, sales of following electronic mail address: rule- Act [15 U.S.C. 78l(g)(1)] and Exchange Act Rule unregistered securities, the use of proceeds from [email protected]. All comment letters 12g–1 [17 CFR 240.12g–1] because it had total recent sales of securities, specified financial should refer to File No. S7–08–02. This assets of more than $10 million and the class of statements and information, management’s file number should be included in the equity securities is held by more than 500 record discussion and analysis of financial condition and holders as of the last day of the company’s fiscal results of operations, and quantitative and subject line if electronic mail is used. year (and cannot rely on an exemption from such qualitative disclosure about market risk. Part III Comment letters will be available for registration); requires disclosure regarding the company’s public inspection and copying in the A company that has voluntarily registered a class directors and executive officers, executive Commission’s Public Reference Room, of equity securities under Section 12(g) of the compensation, security ownership and certain Exchange Act; relationships, and related party transactions. Part IV 450 Fifth Street, NW, Washington, DC Under Section 15(d) of the Exchange Act [15 requires disclosure of exhibits, financial statement 20549. Electronically submitted U.S.C. 78o(d)], a company that filed registration schedules, and a list of current reports filed on comment letters will be posted on the statement under the Securities Act that became Form 8–K. Commission’s Internet website (http:// effective and has not met the thresholds for 16 Form 10–Q (and Form 10–QSB [17 CFR 1 suspension of the reporting requirement; and 249.308b]) consists of two parts. Part I requires www.sec.gov). Under Exchange Act Rules 12g–3 and 15d–5 [17 disclosure of specified financial statements, CFR 240.12g–3 and 240.15d–5], a company that has management’s discussion and analysis of financial 1 We do not edit personal identifying information, succeeded to the obligation of another reporting condition and results of operations, and such as names or electronic mail addresses, from company. quantitative and qualitative disclosure about market VerDate 11 • Current reports on Form 8–K for a of the different sources that provide reports filed on Form 10–Q or 10–QSB number of specified events.17 access to company information. also have a 45-day deadline. A domestic reporting company must As a step in modernizing the periodic The ‘‘Report of the Advisory file a quarterly report no later than 45 reporting system and improving the Committee on Corporate Disclosure to calendar days after the end of each of its usefulness of quarterly and annual the Securities and Exchange first three fiscal quarters, and an annual reports to investors, we are proposing to Commission’’ in 1977 led to the report no later than 90 calendar days shorten the filing due dates for these establishment of the current integrated 23 after the end of its fiscal year. In reports for many companies. We also are disclosure system. The system addition, a company may be required to proposing to require a company subject involves significant reliance on file transition reports on Form 10–K or to these accelerated filing deadlines to Exchange Act reports to satisfy the 10–KSB or Form 10–Q or 10–QSB when disclose in its annual report on Form disclosure requirements for registration 18 it changes its fiscal year. 10–K where investors can obtain timely statements filed under the Securities Over 30 years have passed since we access to company filings, including Act. The Advisory Committee did not last changed these deadlines. In the whether the company provides access to recommend changing, and the interim, advances in communications its reports on Forms 10–K, 10–Q and 8– Commission did not change, the and information technology have made K on its Internet website, free of charge, periodic report filing dates when it it easier for companies to process and as soon as reasonably practicable, and in established the integrated disclosure disseminate information swiftly. Many any event on the same day as, these system. large seasoned reporting companies reports are electronically filed with or We believe that periodic reports capture and evaluate information and furnished to the Commission.20 If the contain valuable information for announce their quarterly and annual company does not provide website investors. Commentators have long financial results well before they file access in this manner, it also must remarked, however, that because the their formal reports with the disclose why it does not do so and due dates for periodic reports are so Commission. These earnings where else investors can access these lengthy, the information included in the announcements are generally less reports often is stale by the time the filings electronically immediately upon 24 complete in their disclosure than filing. The company also would be reports are filed. While quarterly and quarterly or annual reports and can required to disclose its website address, annual reports at present generally emphasize information that is less if it has one. reflect historical information, it is prominent in quarterly or annual important that a lengthy delay before reports.19 Investors also process, II. Proposed Changes that information becomes available does evaluate and react to information on a not make the information less valuable A. Acceleration of Quarterly and much shorter timeframe. The delayed to investors. Significant technological Annual Report Due Dates filing of reports, however, means advances over the last three decades investors often make decisions without 1. Reasons for Proposal have both increased the market’s access to the more extensive disclosure demand for more timely corporate in the company’s Exchange Act reports. While the specific disclosure required disclosure and the ability of companies Investors also need ready access to in quarterly reports and annual reports to capture, process and disseminate this corporate information to make their has evolved over the past 30 years, and information.25 Computers, sophisticated investment and voting decisions. An the integrated disclosure system has financial software, electronic mail, effective and economical method for placed added emphasis on Exchange teleconferencing, videoconferencing and companies to make information Act reporting, the basic structure and other technologies available today have available about themselves is through timeframes that were established in replaced the paper and pencil, their Internet websites. We therefore 1970 remain in place today. Since that typewriter, adding machines, carbon strongly encourage companies to time, annual reports for domestic paper, mail system, travel and face-to- provide investors with website access to companies have been due 90 calendar face meetings relied on in 1970. their Exchange Act reports. We believe days after a reporting company’s fiscal In our 1998 release proposing reform 21 company disclosure should be more year end. Transition reports filed on of the Securities Act registration readily available to investors on a timely Form 10–K or 10–KSB also have a 90- process,26 we noted that hundreds of basis in a variety of locations to day deadline. Since 1946, quarterly public companies issue press releases to facilitate investor access to that periodic reports have been due within announce quarterly and annual results information. We believe it is important 45 calendar days after the end of a for companies to make investors aware quarter, although from 1955 to 1970, 23 See Report of the Advisory Committee on companies filed semi-annual reports Corporate Disclosure to the Securities and Exchange instead of quarterly reports.22 Transition Commission (Nov. 3, 1977). risk. Part II requires disclosure regarding legal 24 As far back as 1969, former SEC Chairman proceedings, changes in securities, sales of Manuel Cohen said: ‘‘because companies need not unregistered securities, the use of proceeds from 20 Even if a company chooses not to make its file the [quarterly] report until 45 days after the end recent sales of securities, defaults on senior reports available on its website, investors still of the quarter, the information is often stale.’’ See securities, exhibits, and a list of current reports would be able to access information about the J. Robert Brown, Corporate Communications and filed on Form 8–K. company through our EDGAR system. A company’s the Federal Securities Laws, 53 Geo. Wash. L. Rev. 17 17 CFR 249.308. These events currently posting of its reports on its website would not be 741 (1985). include change in control of the registrant, the a substitute for filing documents with the 25 See, for example, Report to the Congress: The acquisition or disposition of a significant amount of Commission. Impact of Recent Technological Advances on the assets, the bankruptcy or receivership of the 21 See General Instruction A of Forms 10–K and Securities Markets, (Sept. 1997). That report, like all registrant, changes in the registrant’s certifying 10–KSB and Release No. 34–9000 (Oct. 21, 1970) Commission reports issued after 1996, is available accountant, the resignation of a member of the [35 FR 16919]. Before 1970, the due date for filing on our Internet website (http://www.sec.gov). registrant’s board of directors, and any other event annual reports was 120 days after a company’s 26 See Release No. 33–7606A (Nov. 13, 1998). In that the registrant deems of significance to security fiscal year end. that release, we solicited comment on whether we holders. 22 See General Instruction A.1 of Forms 10–Q and should shorten the due dates of annual and 18 See Exchange Act Rules 13a–10 and 15d–10. 10–QSB; Release No. 34–3803 (Mar. 28, 1946) [11 quarterly reports. Comments received on that 19 See Release No. 33–8039 (Dec. 4, 2001) [66 FR FR 10988]; and Release No. 34–9004 (Oct. 28, 1970) release are available through our Public Reference 63731]. [35 FR 17537]. Room under File No. S7–30–98. VerDate 11 well before they file their reports with arguing that accelerated due dates are Some of the commenters who us.27 While these press releases do not necessary in today’s fast-paced objected to an acceleration of filing contain all of the information included marketplaces to ensure the efficient deadlines and several other commenters in quarterly and annual reports, it allocation of capital and the timely flow offered alternative suggestions that appears that companies and their of information to the market.30 might help mitigate the impact of such auditors have developed efficiencies A larger number of commenters, a change if the Commission was over the years that allow them to however, thought that a shortening of committed to an acceleration proposal. generate financial data quickly.28 due dates would be overly One suggestion was a more gradual Companies are responsible for the burdensome,31 particularly for small acceleration of due dates, where large or information in these announcements. companies.32 Several of the commenters seasoned issuers would be the first We understand as a general matter that that argued against shortening deadlines group subject to shortened filing dates the audit work is essentially completed also were concerned that the benefits or the filing deadline would be and other steps have been taken to derived from technological advances shortened in incremental steps (for ensure their accuracy. over the past 30 years have been offset example, initially to 40 days for These earnings announcements also by additional and more complex quarterly reports and 75 days for annual reflect the importance of the financial reporting requirements. They were reports).34 Another commenter information and investors’ demand for it concerned that accelerated due dates suggested that companies should file at the earliest possible time. While we would result in less accurate filings.33 their reports by the earlier of the current applaud companies’ practices of issuing due dates or a specified date after the press releases to keep investors 30 See, for example, the Letters in File No. S7–30– company’s first release of earnings.35 promptly informed of important 98 of American Federation of Labor and Congress Some commenters requested that we corporate developments, the amount of of Industrial Organizations (‘‘AFL–CIO’’); Association of Investment Management and propose changes in a separate release information and the manner of its Research; Michael J. Connell; Council of specifically addressing filing deadlines, presentation in press releases varies Institutional Investors (‘‘CII’’); Ford Motor which we are doing today.36 from company to company. Investors Company; Ford Motor Credit Company; On February 13, 2002, we announced Institutional Shareholder Services (‘‘ISS’’); often must wait for the periodic reports our intention to propose shortened to receive financial statements and the Investment Company Institute (‘‘ICI’’); North American Securities Administrators Association, filing deadlines as part of a series of accompanying notes prepared in Inc. (‘‘NASAA’’); Pennsylvania Securities initial steps to modernize and improve accordance with generally accepted Commission; Service Employees International the corporate disclosure system.37 We Union Master Trust (‘‘SEIU’’); and Teachers accounting principles, management’s recently hosted roundtable discussions discussion and analysis, and other Insurance and Annuity Association-College Retirement Equities Fund (‘‘TIAA–CREF’’). in New York, Washington, DC, and vitally important financial disclosures. 31 See, for example, the Letters in File No. S7–30– Chicago at which investor relations Shortening the due date of quarterly and 98 of American Bar Association (‘‘ABA’’); American professionals, corporate executives, annual reports would provide more Corporate Counsel Association (‘‘ACCA’’); Agway, Inc.; Association of the Bar of the City of New York academics, and experienced legal timely disclosure to investors and the counsel discussed financial disclosure market. (‘‘NYCBA’’); Association of Publicly Traded Companies; Baldwin & Lyons, Inc.; BostonFed and auditor oversight.38 Several of the In establishing the appropriate Bancorp, Inc.; Business Roundtable; Cabot participants at these roundtables timeframes for filing periodic reports, Corporation; Charles Schwab & Co., Inc.; Chevron however, we must balance the market’s Corporation; Citigroup Inc.; Cleary, Gottlieb, Steen Corporation; Citigroup Inc.; Cleary; FEI; FIAC; need for information with the time & Hamilton (‘‘Cleary’’); Diamond Home Services, Inc.; Duke Energy Corporation; Emerson Electric FirstEnergy Corp.; GM; Jacobs; Malizia; Mellon companies need to prepare that Co.; Financial Executives Institute (‘‘FEI’’); Bank Corporation; NAREIT; NYSSCPA; PPG information without undue burden. We Financial Institutions Accounting Committee Industries, Inc.; S&C; and Toyota Motor Credit recognize that it may be necessary for a (‘‘FIAC’’); FirstEnergy Corp.; Fried, Frank, Harris, Corporation. 34 new public company to develop Shriver & Jacobson (‘‘Fried Frank’’); General Motors See, for example, the Letters in File No. S7–30– Corporation (‘‘GM’’); Goldman, Sachs & Co.; Grubb 98 of the ABA, ACCA; American Institute of experience with the preparation and & Ellis Company; Home Federal Savings; Jacobs Certified Public Accountants; Baldwin & Lyons, filing of periodic reports. Similarly, Engineering Group Inc. (‘‘Jacobs’’); John Hancock Inc.; Michael J. Connell; Ernst & Young LLP; Fried smaller issuers may not have the Mutual Life Insurance Company; J.P. Morgan & Co.; Frank; Shering-Plough Corporation; Southern KPMG LLP; Mellon Bank Corporation; National Company; and Weinbaum & Yalamanchi. resources or infrastructure to prepare 35 their reports on a shorter timeframe Association of Real Estate Investment Trusts See the ABA Letter in File No. S7–30–98. (‘‘NAREIT’’); New York State Society of Certified 36 See the Michael J. Connell and Donnelley without undue burden or expense. Public Accountants (‘‘NYSSCPA’’); PennFed Letters in File No. S7–30–98. In our 1998 release, we requested Financial Services, Inc.; PPG Industries, Inc.; 37 In our Press Release No. 2002–22 (Feb. 13, comment as to whether we should PricewaterhouseCoopers LLP; R.R. Donnelley & 2002), we stated that in addition to the proposed shorten the due dates for quarterly and Sons Company (‘‘Donnelley’’); Schering-Plough amendments discussed in this release, we intend to annual reports.29 We received a Corporation; Southern Company; Sullivan & propose rules to (1) expand the list of significant Cromwell (‘‘S&C’’); Toyota Motor Credit events requiring disclosure on Form 8–K; (2) significant number of comments in Corporation; USX Corporation; and Wells Fargo & require disclosure on a current basis of certain response to that request. Several Company. transactions involving securities of a company commenters supported or did not object 32 See, for example, the Letters in File No. S7–30– entered into with any of its executive officers and to the acceleration of quarterly and 98 of CCF Holding Company; The CIT Group, Inc.; directors; and (3) require disclosure regarding Equality Bancorp, Inc.; Ernst & Young LLP; First critical accounting policies. In a companion release annual report due dates, with some National Bank of West Chester; First Northern being issued today, we propose to amend Form 8– Capital Corp.; FirstBank Northwest; Frankfort First K to require disclosure on a current basis of certain 27 Our Office of Economic Analysis has Bancorp, Inc.; Green Street Financial Corp.; Home transactions involving securities of a company determined that, over the past 10 years, registrants Building Bancorp, Inc.; Malizia, Spidi, Sloane & entered into with any of its executive officers and on average issued their year-end earnings Fisch, P.C. (‘‘Malizia’’); New York State Bar directors. See Release No. 34–45742 (Apr. 12, 2002). announcements approximately 43 days after fiscal Association; Provident Bancorp; Security of 38 See SEC Press Release Nos. 2002–28 (Feb. 22, year end. In addition, registrants on average issued Pennsylvania Financial Corp.; Seven Silicon Valley 2002) and 2002–46 (Mar. 27, 2002). The New York their quarterly earnings announcements law firms and Prof. Joseph A. Grundfest; Tri-County roundtable was held on March 4, 2002. The approximately 27 days after period end. Bancorp, Inc.; Weinbaum & Yalamanchi; Wells Washington DC roundtable was held on March 6, 28 See, for example, Tad Leahy, ‘‘The Reality of Financial Corp.; Westerfed Financial Corp.; West 2002. The Chicago roundtable was held on April 4, Real-Time reporting,’’ Business Finance, March Essex Bank; and WVS Financial Corporation. 2002. Archived broadcasts of the roundtables are 2000, at 93. 33 See, for example, the Letters in File No. S7–30– available to the public on our Internet website at 29 See note 26 above. 98 of Agway, Inc.; Business Roundtable; Chevron www.sec.gov. VerDate 11 indicated that reporting within the ‘‘accelerated filer,’’ we propose to they remain similar to the deadlines for proposed shortened deadlines was shorten the due date for annual reports periodic reports.48 feasible.39 Some participants, however, on Form 10–K to 60 calendar days after Questions Regarding Accelerating Filing referred to the comment letters on our the company’s fiscal year end. We Due Dates 1998 Securities Act reform proposals,40 propose to shorten the due date for and were concerned about the ability of quarterly reports on Form 10–Q to 30 • To what extent would shortening companies, and smaller companies in calendar days after the end of each of the due dates for quarterly, annual and particular, to report in a shorter the first three quarters of the company’s transition reports improve the flow of timeframe.41 They thought that fiscal year. We propose similar changes information to investors and the to the transition reports that an markets? accelerating deadlines could cause the • quality of reports to diminish.42 One accelerated filer must make when it Should the proposed filing periods participant was concerned that changes its fiscal year. Specifically, we be longer or shorter than proposed? shortened deadlines may present more propose to accelerate the due date of What factors should we consider in problems for quarterly reports than for transition reports to 60 calendar days for making these filing periods longer or 43 transition reports filed on Form 10–K shorter? annual reports. • and 30 calendar days for transition Should we only accelerate the 2. Description of Proposal reports filed on Form 10–Q.47 annual report due date, or only the Although our proposed changes quarterly report due date? After evaluating the discussions at the • roundtables, the comments from our would not eliminate entirely the Should we require companies to file 1998 release, and technological and information gap between a company’s their reports by the earlier of the other market developments since the announcement of earnings and the filing existing deadlines or some earlier time 1998 release, we propose to accelerate of more extensive information in its after their first release of earnings the due dates of quarterly and annual periodic reports, they would lessen the information for that period? What reports only for companies: gap. We seek to minimize this gap while timeframe would be appropriate? For • With a public float 44 of $75 million still giving companies enough time to example, would a 15 or 30 day period or more as of a date within no more than prepare their reports. We are aware that after the earnings announcement 60 and no less than 30 days before the it takes companies time to prepare and provide enough time for a company to end of the company’s last fiscal year; 45 verify the more extensive disclosures finalize the corresponding periodic • That have been subject to the that must be included in the reports, report? Would such a requirement delay earnings announcements? reporting requirements of Section and we appreciate the importance of • 13(a) 46 or 15(d) of the Exchange Act for allowing sufficient preparation time to Are there ways other than our proposal to get important information a period of at least 12 calendar months ensure accurate presentation of results, out to investors sooner? Would our preceding the filing of the report; and as well as to permit the mandated audit • That have filed at least one annual or review of financial information by proposals cause a delay in the release of report pursuant to Section 13(a) or 15(d) independent auditors and consideration earnings announcements? Should we of the Exchange Act. by audit committees and boards of only require that certain information, such as the audited or reviewed For a company meeting these directors. We acknowledge that, while financial statements and management’s requirements, which we define as an the deadlines for filing quarterly and discussion and analysis, be filed on an annual reports have not changed in over 39 See, for example, Richard Carbone and accelerated basis? 30 years, the disclosure requirements • Do the proposed Form 10–Q and Raymond Groves, Remarks at the Financial have changed and some companies, Disclosure and Auditor Oversight Roundtable in 10–K due dates provide affected Washington, DC (Mar. 6, 2002) (archived broadcast particularly those with widespread companies with enough time to prepare available at www.sec.gov). operations, face additional complexities their reports? Do affected companies 40 See, for example, John White, Remarks at the in today’s environment. However, for anticipate any significant problems in Financial Disclosure and Auditor Oversight the reasons discussed above, we Roundtable in New York, NY (Mar. 4, 2002) complying with the accelerated (archived broadcast available at www.sec.gov); and anticipate that these changes have not deadlines? 49 If so, what types of James Cheek, Remarks at the Financial Disclosure outweighed fully the ability of problems? and Auditor Oversight Roundtable in Washington, companies to report in shorter • Would the proposal impose any DC (Mar. 6, 2002) (archived broadcast available at timeframes, particularly with respect to significant costs on these companies? If www.sec.gov). companies that would meet our 41 See, for example, Edward Nusbaum, Remarks so, what type and amount of costs? Are at the Financial Disclosure and Auditor Oversight proposed public float and reporting these short-term or one-time costs to Roundtable in Chicago, IL (Apr. 4, 2002) (archived history requirements. We believe that broadcast available at www.sec.gov). these companies may be able to disclose 48 See, for example, Release No. 33–6823 (Mar. 42 See note 40 above. information within the shortened 13, 1989) [54 FR 10306] (Revising transition report 43 See, for example, Phil Livingston, Remarks at timeframes without sacrificing accuracy rules to conform their filing requirements to those the Financial Disclosure and Auditor Oversight or completeness, although we request for periodic reports). Roundtable in Washington, DC (Mar. 6, 2002) 49 Shortly after we announced our intention to (archived broadcast available at www.sec.gov). comment on these preliminary beliefs. propose changes to corporate disclosure, the 44 Public float is the aggregate market value of a Accordingly, we propose a 30 day National Investor Relations Institute (‘‘NIRI’’) company’s outstanding voting and non-voting period for quarterly reports and a 60 day conducted a survey of its corporate members to common equity (i.e., market capitalization) minus period for annual reports. A 30 and 60 assess initial reactions to these changes. See ‘‘NIRI the value of common equity held by affiliates of the Releases Survey Results on SEC Proposed Changes company. Public float is also one of the key day period also represents common and to Corporate Disclosure,’’ Executive Alert (National determinants for eligibility for short-form easily measurable periods for investors Investor Relations Institute, Vienna, VA), Mar. 20, registration under the Securities Act (Form S–3 [17 and companies to calculate filing 2002. Based on 406 responses, an 11% response CFR 239.13] and Form F–3 [17 CFR 239.33]). deadlines. We propose conforming rate, 40% of the respondents stated they would not 45 The company could select any date within this anticipate any significant problems filing their period to establish whether it met the public float deadlines for transition reports so that annual reports within 60 days after the end of the requirement for purposes of establishing the due fiscal year, and 46% stated they would not date for that year’s Form 10–K and the subsequent 47 If our proposals are adopted, we would make anticipate any significant problems filing their year’s Form 10–Q reports. appropriate conforming updates to the Codification quarterly reports within 30 days after the end of 46 15 U.S.C. 78m(a). of Financial Reporting Policies. each fiscal quarter. VerDate 11 adjust a company’s reporting information statements under Section threshold to reduce regulatory procedures, or long-term, ongoing costs? 14 of the Exchange Act.54 We complexity. • Would auditors, audit committees preliminarily believe there would be no If a company was not already an and boards of directors have sufficient countervailing reasons why we should accelerated filer, a company would time to perform their review functions? not make these conforming changes, and determine its public float for purposes • It is our understanding that a note that if we do not make these of determining whether it will become company’s audit (or review in the case changes, there would be inconsistencies an accelerated filer as of a date no more of interim financial statements) is between these requirements and the than 60 and no less than 30 days before complete or substantially complete by periodic report filing requirements. the end of its fiscal year. Hence, a the time the company issues its earnings Should we make these conforming company that meets the float announcement. Is our understanding revisions? Should we also make similar requirement on this determination date accurate? How often do these earnings revisions to the financial statement would be subject to shortened deadlines numbers change between their filing requirements in Item 7 of Form 8– for that year’s Form 10–K and the announcement and the filing of the K (i.e., reducing the filing deadlines by reports on Form 10–Q filed in the corresponding periodic report? What one-third from 60 to 40 days)? What company’s next fiscal year, if it also steps are involved, and how much time ramifications might there be if we make meets the reporting history does it take, to prepare the necessary these conforming changes, or if we do requirements on the date the reports are disclosures for the corresponding not make these changes? Should there due. If a company meets the public float periodic report after the earnings be other exceptions or changes made for requirement on the determination date announcement or the completion of the certain categories of issuers or types of but does not yet meet the reporting audit (or review)? filings? Should changes only be made history requirements, it would not • Would the reliability and accuracy for accelerated filers that would meet become an accelerated filer until it does of the reports suffer as a result of the conditions in Rule 3–01(c) of meet the reporting requirements, which shortened due dates? Regulation S–X? Should we provide a could occur at any time during the next • As part of our proposal, we also transition period for any such changes? fiscal year. propose to make a conforming change to Once a company became an the date by which all schedules required 3. ‘‘Accelerated Filer’’ Definition accelerated filer, it would remain an by Article 12 50 of Regulation S–X 51 accelerated filer subject to shortened The public float and reporting history may be filed as an amendment to the deadlines unless it became eligible to requirements that we propose to use to annual report. We propose to change use Forms 10–KSB and 10–QSB for its identify the companies that would be this date from 120 calendar days to 90 annual and quarterly reports.58 In that subject to accelerated filing are intended calendar days for accelerated filers to case, the issuer would no longer be an to include the companies that are least maintain a 30 day period after the due accelerated filer unless it subsequently likely to find such a change overly date of the report to file the amendment. became ineligible to use Forms 10–KSB burdensome. We are not proposing to Should we make this conforming and 10–QSB and once again met the change the due dates for annual, change? public float and reporting history quarterly or transition reports for other • We do not propose to make a requirements. companies, including small business conforming change to the 120-day For example, if in December, 2002, a issuers that file on Forms 10–KSB and period companies have to file their company with a December 31st fiscal 10–QSB, at this time.55 definitive proxy or information Those year end determines that it meets the statements involving the election of companies will remain subject to the public float requirement but has not directors to allow the incorporation by existing filing deadlines. The proposed filed its first annual report, its annual reference of the information required by public float and reporting history report for fiscal year 2002, due in 2003, Part III of Form 10–K.52 We request requirements are based on the current would be subject to a 90 day deadline. comment on whether not changing the eligibility requirements for registration However, once it filed its 2002 annual of primary offerings for cash on Form S– 120-day proxy and information 56 report, and assuming by that time it had statement filing deadline would cause 3. As these companies can take also been subject to the Exchange Act difficulties for companies or decrease advantage of short-form registration, reporting requirements for 12 months, the benefits of the proposals to investors including the resultant benefits of the company would now be subject to because of the delay before receipt of incorporation by reference and quick accelerated deadlines for subsequent access to the capital markets through the incorporated information. Should 57 Form 10–Q reports filed during the 2003 this period also be shortened by 30 ‘‘shelf registration,’’ a shortening of fiscal year and all annual and quarterly days? the deadlines for these companies seems reports filed thereafter. If, in subsequent • We also are strongly considering appropriate. In identifying companies years, the company’s public float fell to making conforming revisions to that would be subject to this new the point that it became eligible to use accelerate the timeliness requirements requirement, we thought it would be Forms 10–KSB and 10–QSB for its in Regulation S–X (for example, Rules appropriate to use a pre-existing annual and quarterly reports, it would 3–01, 3–05 and 3–12 of Regulation S– no longer be an accelerated filer subject X) 53 for the inclusion of financial 54 15 U.S.C. 78n. to accelerated deadlines. If the company statements by accelerated filers in other 55 The definition of ‘‘small business issuer’’ excludes issuers with a public float of $25 million subsequently became ineligible to use Commission filings, such as Securities or more. As a result, all small business issuers are Forms 10–KSB and 10–QSB and once Act registration statements, registration effectively excluded from our proposal. statements under Section 12 of the 56 See General Instructions I.A.3 and I.B.1 of Form 58 See Item 10(a)(2) of Regulation S–K [17 CFR Exchange Act and proxy and S–3. 228.10(a)(2)] for the conditions for entering and 57 ‘‘Shelf registration’’ is the commonly used term exiting the small business reporting system. A for delayed offerings under Securities Act Rule 415 reporting company that is not a small business 50 17 CFR 210.12–01 et seq. [17 CFR 230.415]. Rule 415 permits offerings to be issuer must meet the definition of a small business 51 17 CFR 210.1–01 et seq. delayed until some point determined by the issuer at the end of two consecutive fiscal years 52 See General Instruction I.G(3) of Form 10–K. registrant after effectiveness of the relevant before it will be considered a small business issuer 53 17 CFR 210.3–01, 3–05 and 3–12. registration statement. for purposes of Form 10–KSB and Form 10–QSB. VerDate 11 again met the public float and reporting may not have a public float)? Should we • While we have proposed to use the history conditions, it would again make exceptions to the proposed due public float test, we are seriously become an accelerated filer subject to dates for certain companies or considering alternative thresholds and accelerated deadlines. industries? If so, which ones and why? request comment on such alternatives. Currently, companies are required to • Currently, foreign private issuers For example, should all reporting disclose on the cover page of their must file their annual reports on Form companies be subject to shortened filing annual reports on Form 10–K the 20–F within six months after the end of deadlines, except for companies below company’s public float as of a specified their fiscal years. 60 We are not a certain revenue or asset threshold (for date within 60 days before filing. To proposing today to change that example, $5 million)? Should we assist the Commission and investors in interval,61 although we are continuing accelerate the filing dates only for evaluating whether a company is subject to consider this issue and Exchange Act companies whose equity securities are to accelerated deadlines, we propose to filing requirements generally for foreign listed or actively traded on an exchange revise this requirement. For a company issuers. If today’s proposal is adopted, or Nasdaq? How would we define that was not previously an accelerated the discrepancy between the filing ‘‘actively traded?’’ Are there other filer, we would require disclosure of the deadlines for larger seasoned U.S. alternatives that will balance the need public float computed as of a date no issuers and those for foreign private for timely, high quality disclosure with more than 60 and no less than 30 days issuers will increase. The speed with the ability of companies to prepare the before the last day of the company’s which foreign issuers can capture and disclosure without undue burden? • most recently completed fiscal year to analyze information has also probably Should the reporting history determine whether the company was an improved since the six-month interval requirement be shorter or longer than accelerated filer, and the date used for was established. Foreign issuers are proposed? Is a history of preparing purposes of that computation. If a subject to similar obligations as to the reports relevant to the ability of a company was previously an accelerated information to be reported. There are company to report on an accelerated filer, we would require disclosure of the some categories of information, for timeframe? Is less or more experience public float as of a specified date no example executive compensation, where needed than that proposed? • We are proposing the requirement more than 60 and no less than 30 days requirements for foreign issuers are less that a company file at least one annual before the last day of the company’s onerous. Foreign issuers that do not report to provide reasonable most recently completed fiscal year. prepare their financial statements in opportunity for a company to gain accordance with U.S. GAAP, however, Questions Regarding Our Proposed enough filing experience before it is must go through the additional step of Definition of Accelerated Filer subject to shortened deadlines. Is such preparing a reconciliation of their • experience relevant to prepare Would the proposed public float financial statements to U.S. GAAP. In and reporting history requirements information in a shorter timeframe? light of the requirements of Form 20–F • Is the proposed method for entering exclude the companies that are the least and the situation of foreign private able to comply with shortened and exiting accelerated filing status that issuers, should the deadline for annual relies on the small business issuer deadlines? reports on Form 20–F be shortened? If • Would different filing deadlines for reporting system clear? Is it appropriate? so, should it be shortened to five In the alternative, should there be some different companies confuse companies months or four months after the end of and/or investors? other mechanism for companies to enter • the company’s fiscal year? To some and exit accelerated filer status? For Should all reporting companies be other period? What would be the impact subject to shortened filing deadlines? 59 example, should a company be of such a change? permitted to exit accelerated filer status Is the exclusion of small issuers • Should the public float requirement appropriate? Is the need for timely if its public float has fallen below some be higher or lower than that currently specified threshold (i.e., $25 million or information about these issuers greater proposed? If higher, how would that than the additional burden or expense $50 million) and has remained below level be consistent with the level that threshold for some specified period these issuers might incur from currently required for short-form shortened deadlines? Should all of time? Should a threshold other than registration on Form S–3 (or should that public float be considered? What factors reporting companies be subject to the level also be raised)? If a different level shortened filing deadlines, except for should be considered in formulating is appropriate, what levels should be such an alternative? companies eligible to file under our considered, and why? • small business reporting system? Are Should we require a company to • Is the method for determining the there additional or alternate factors we provide notice that it is entering or measurement date for the public float should consider? exiting accelerated filer status? Should test clear? Is the delineation of which • Should non-accelerated filers be such a notice be through a filing on reports would be subject to accelerated subject to deadlines shorter than the Form 8–K and/or through some other deadlines appropriate? Should the current deadlines, but not as short as method or combination of methods to determination of which reports would those proposed for accelerated filers ensure broad dissemination of this be subject to accelerated deadlines be (e.g., 75 days for annual reports and 40 announcement? Would the lack of an made at a point other than a date no days for quarterly reports)? affirmative requirement to announce a more than 60 and no less than 30 days • Would our proposed changes affect change in a company’s filing status before the last date of the issuer’s fiscal some companies or industries more than disadvantage investors or the markets? year? others (such as those with complex 4. Impact of Accelerated Filing transactions or accounting or those that Deadlines regularly access the debt markets 60 In addition, foreign private issuers that undertake registered offerings under the Securities The proposed shortening of the due instead of equity markets, and therefore Act are effectively subject to a three-month dates for quarterly and annual reports reporting deadline for their audited annual 59 In our 1998 release, we solicited comment on financial statements. See Item 8.A.4 of Form 20–F. could create the risk that more accelerating deadlines for all reporting companies. 61 In our 1998 release, we proposed to shorten the companies would file their reports late See note 26 above. interval to five months. See note 26 above. or would need a filing extension. VerDate 11 Moreover, if a company was late in Form 10–K or Form 10–Q reports, or Internet is that companies can make filing its reports, it would lose the publish and mail both in a single information available to many investors availability of short-form registration for document, encounter difficulty in and the financial markets quickly and in at least one year from the date of the late meeting the accelerated due dates? 64 a cost-effective manner. Online access to filing. Being late also could render • Are there special circumstances Internet information also helps to Securities Act Rule 144 temporarily associated with the preparation of democratize the capital markets by unavailable for security holders’ resales transition reports that weigh against enabling many small investors to access of restricted and control securities, and reducing the filing periods for those corporate information just as readily as make new filings on Form S–8 reports? large institutional investors.69 We have taken a number of steps to temporarily unavailable for resales of 5. Transition Period employee benefit plan securities.62 encourage companies and market We expect that, if adopted, the intermediaries to take advantage of Questions Regarding the Impact of proposal would have a delayed electronic media to communicate with, Accelerating Filing Deadlines effectiveness date to provide affected and deliver information to, investors.70 • Are there ways we can minimize companies with time to prepare for the We also have relaxed restrictions on these negative effects aside from transition to shortened due dates. communications by companies with continuing to permit companies to rely Companies could, of course, voluntarily security holders and the financial on Exchange Act Rule 12b–25 for file their reports sooner during this markets in connection with business extensions of the annual report and transition period, just as they may combinations and similar transactions, quarterly report deadlines?63 today. If we adopt the proposal, we thereby allowing companies greater • Would the current filing extension expect to make the proposal effective for flexibility to communicate, including periods remain sufficient under companies that meet the public float via the Internet.71 For 18 years, we have accelerated deadlines? Should these and reporting history requirements as of been continually improving and periods be shortened (for example, to 10 the end of their first fiscal year ending modernizing electronic access to days for an annual report or three days after October 31, 2002. We request companies’ Exchange Act reports for a quarterly report) to conform to the comment on the factors we should through our EDGAR system, including accelerated filing due dates of these consider in selecting an appropriate by providing Internet access to these reports and to ensure timely filings? transition period. reports.72 An efficient and economical method Would shorter periods provide B. Website Access to Information companies with enough time to make for companies to make information Exchange Act Rule 12b–25 useful? 1. Reasons for Proposal available about themselves to many Instead, should these periods be Widespread access to timely corporate investors is through an Internet website. lengthened (for example, to 20 days for information promotes the efficient In addition to other existing sources of an annual report or 10 days for a functioning of the secondary markets by company information, such as our quarterly report) to provide companies enabling investors to make informed website, a company’s website is often an more time to file their reports because investment and voting decisions. obvious place for investors to find of the effect of accelerated filing due Further, ready access to Exchange Act information about a company. Investors dates? What factors should we consider information is critical to short-form following particular companies can use in determining whether and by how registration of securities offerings by electronic devices to alert them to the posting of new information about the much these periods should be changed? seasoned issuers under the Securities • companies on a website. Many Would companies not subject to the Act. Our system of short-form companies, realizing the benefits of this accelerated deadlines find it more registration, which is available in technology for information difficult to retain the necessary outside varying degrees for domestic issuers on dissemination, have established advisors to prepare their reports in the Forms S–2, 65 S–3, S–4,66 and S–8,67 websites to furnish company and appropriate timeframe? Would the allows certain information about the quality of their reports suffer? industry information. As discussed • company conducting the offering to be Would companies that currently incorporated by reference from the 69 See, for example, Ianthe Jeanne Dugan, ‘‘Small integrate their annual or quarterly company’s Exchange Act reports reports to security holders with their Investors United by Web Find New Power,’’ The without, in many instances, separate Washington Post, May 30, 1999, at A01. delivery of these reports. One rationale 70 We have issued a series of interpretive releases 62 Securities Act Rule 144 [17 CFR 230.144] for these abbreviated registration forms to encourage the use of electronic media to satisfy requires that for such a resale to be valid, the issuer document delivery requirements under the federal of the securities must have made all filings required is that the information in a company’s securities laws. See, for example, Release No. 33– under the Exchange Act during the preceding 12 Exchange Act reports already has been 7233 (Oct. 6, 1995) [60 FR 53458] (the ‘‘1995 months. Form S–8 [17 CFR 239.16b] requires that adequately disseminated and evaluated Release’’); Release No. 33–7289 (May 9, 1996) [61 an issuer be current in its reporting for the last 12 by the marketplace. FR 24652]; and Release No. 33–7856 (Apr. 28, 2000) calendar months (or such shorter period that the [65 FR 25843] (the ‘‘2000 Release’’). Last October, issuer was required to file such reports and The development of the Internet has we announced that we are currently reviewing materials). If a company was late in filing its revolutionized information production, whether our previous pronouncements on reports, the company would lose Rule 144 availability, and dissemination.68 The electronic delivery should be modified. See In the eligibility and eligibility to file a Form S–8 during increased availability of information has Matter of The American Separate Account 5 of The the time that the company was not current in its American Life Insurance Company of New York, reporting. helped to promote transparency, Release No. 33–8027 (Oct. 25, 2001) (available at 63 17 CFR 240.12b–25. If a company complies liquidity, and efficiency in our capital www.sec.gov). with Rule 12b–25, it can file its annual report no markets. One of the key benefits of the 71 See Release No. 33–7760 (Oct. 22, 1999) [64 FR later than the fifteenth calendar day following the 61408]. In that release, we adopted a new regulatory prescribed due date for that report, and the report system that relaxes restrictions on communications 64 See General Instructions G and H of Form 10– will be deemed to be filed on the prescribed due in cash tender offers, mergers, exchange offers, and K and General Instructions D and E of Form 10–Q. date. For quarterly reports, the company can file its proxy solicitations. 65 quarterly report no later than the fifth calendar day 17 CFR 239.12. 72 Numerous third-party vendors also make following the prescribed due date for that report, 66 17 CFR 239.25. information filed with the Commission and the report will be deemed to be filed on the 67 17 CFR 239.16b. electronically available to investors, but many prescribed due date. 68 See, for example, note 25 above. charge fees for this service. VerDate 11 below, a substantial number of these Reference Room, and can access Commission’s EDGAR website currently companies also already provide access information electronically filed on our are posted after a 24-hour delay. to their Commission filings through website; 74 Similarly, if a company did not provide their websites. • The company’s website address, if website access to its reports in the Modernizing the disclosure system it has one; 75 manner proposed, reference to our under the federal securities laws • Whether the company makes EDGAR website would not currently involves recognizing the importance of available free of charge on its website, qualify as one of the locations where the Internet in fostering prompt and if it has one, its annual report on Form those filings are available immediately more widespread dissemination of 10–K, quarterly reports on Form 10–Q, in electronic form. We anticipate information. We believe company current reports on Form 8–K, and all eliminating this 24-hour delay for filings disclosure should be more readily amendments to those reports as soon as posted to our website, thus providing available to investors on a timely basis reasonably practicable after, and in any real-time posting of disseminated in a variety of locations to facilitate event on the same day as, such material filings. investor access to that information. We is electronically filed with or furnished Whether a company provides access believe it is important for companies to to the Commission; to its Exchange Act reports either make investors aware of the different • If the company does not make its directly or through a third-party service, sources that provide access to company filings available in this manner, the we recognize that some companies information. reasons why it does not do so display the reports in electronic formats (including, where applicable, that it (for example, PDF) other than the 2. Description of Proposal does not have an Internet website); official electronic format used to We encourage companies to make • If the company does not make its transmit the filing to our EDGAR their Commission filings as broadly filings available in this manner, one or system. In fact, we encourage companies available to the public as possible. In more locations where the public can to do so if alternative formats enhance particular, we encourage every reporting access these filings electronically readability and accessibility of the company to make its filings available to immediately upon filing, if any, and reports, so long as all of the information investors free of charge on its Internet whether there is a fee for such access; in the reports remains retrievable. website, if it has one, as soon as and However, the use of a particular reasonably practicable after, and in any • Whether the company voluntarily medium to access the reports should not event on the same day as, such material will provide electronic or paper copies be so burdensome that the intended is electronically filed with or furnished of its filings free of charge upon request. recipients cannot effectively access the to the Commission. We applaud the We understand that companies information provided.77 efforts already being made by many currently provide website access to their We also encourage companies at a reporting companies to provide access Exchange Act reports in a variety of minimum to provide website access to to their Commission filings through ways, including by establishing a their previous reports for at least a their websites. We would like more hyperlink to its Exchange Act reports twelve month period. Of course, we companies to make similar efforts. We via a third-party service in lieu of encourage companies to provide access also would like to encourage companies maintaining the reports itself.76 In this to their previous reports on an to disseminate their Exchange Act case, we encourage companies to appropriately archived portion of their reports via their websites to promote hyperlink directly to the company’s website over an even longer timeframe. consistent and relative uniform access reports (or to a list of its reports) instead We also encourage companies to to these reports in the place where of just to the home page of the third- provide website access to all of their investors may most likely look for them. party service. Currently, hyperlinking to filings with the Commission, including Website access to Exchange Act reports our EDGAR system would not allow a their filings under the proxy rules and helps to promote consistent, direct, company to state that it provides their Securities Act filings. timely, and more widespread access of website access to its reports as soon as information to investors and the reasonably practicable after, and in any Questions Regarding Our Website financial markets. It also furthers the event on the same day, as those reports Access Proposal proper functioning of the integrated are filed. This is because filings on the • Would our proposal aid in disclosure and short-form registration encouraging companies to make systems. However, we do not want to 74 This disclosure element is currently required of information available in a variety of impose undue burdens and expenses on electronic filers in Securities Act registration locations and hence make corporate statements by Item 101(e) of Regulation S–K. In this information more widely accessible and companies that may not have the regard, our proposed amendments also would resources to provide such access. require this disclosure element for accelerated filers disseminated? Would investors find this Accordingly, we propose to require that file annual reports on Form 10–K. information useful? Would the proposed companies that would be subject to our 75 The inclusion of the company’s website disclosure requirement provide proposed accelerated filing deadlines address would not, by itself, include or incorporate sufficient notice to investors of the by reference the information on the site into the (that is, companies with at least a $75 company’s Commission filing (unless the company available sources of corporate million public float, that have been otherwise acts to incorporate the information by information? subject to the Exchange Act reporting reference). In this instance, we would not consider • The proposed new disclosure requirements for at least 12 calendar the presence of the Internet address to make the requirement only would apply to company’s website part of the company’s filing if companies subject to the accelerated months, and that have filed at least one the company takes reasonable steps to ensure that annual report) to disclose in their the address is inactive (for example, by removing filing deadlines. Is excluding small annual reports on Form 10–K the ‘‘a>href’’ tagging) and includes a statement to issuers appropriate? Is the need for following: 73 denote that the address is an inactive textual timely information about these issuers • That the public may read and copy reference only. See, for example, the 2000 Release, greater than the additional burden or note 70 above, at n.41 and the accompanying text. the company’s filings at our Public 76 In the 2000 Release, we provided interpretive expense these issuers would incur due guidance on the possible effects of hyperlinking to 73 See proposed revisions to Item 101(e) of a third party website. See the 2000 Release, note 70 77 See, for example, the 1995 Release, note 70 Regulation S–K. above, at n.48 and the accompanying text. above, at n. 24 and the accompanying text. VerDate 11 to the proposed new requirement? 3. Impact of Website Proposal C. General Request for Comment Should all reporting companies be We invite any interested person subject to the proposed new The participants at the financial disclosure and auditor oversight wishing to submit written comments on requirement? the proposed amendments, and any roundtables noted that many companies • The proposal only would apply to other matters that might have an impact already provide website access to their companies that file on Form 10–K. on the proposed amendments, to do so. Should we also include foreign private Exchange Act reports as a matter of good 78 We specifically request comment from issuers that file on Form 20–F? Would corporate practice. Our Office of companies that would be subject to the expanding this requirement be overly Economic Analysis examined a sample accelerated filing deadlines and new burdensome? of 152 companies with at least a $75 website disclosure requirements, • What are the expected additional million public float to determine how investors, and other users of Exchange costs of posting Exchange Act reports on many of these companies have websites Act information, as well as facilitators of company websites, either directly or by and how many already provide access to capital formation, such as underwriters. hyperlinking to a third-party service? their Commission filings through their We also specifically request comment Please specify the types of costs that websites. According to this analysis, all on any conforming changes that should would be incurred and quantify them, if of the companies sampled maintained be made to rules and regulations under possible. an Internet website. Approximately 83% the Securities Act or Exchange Act for • Would the proposed new disclosure of those with websites provided some other Commission filings. form of access to their Commission be overly burdensome? Should III. Paperwork Reduction Act additional disclosure be required? Is filings through their websites, either via The proposed amendments contain some of the proposed disclosure not a hyperlink with a third-party service ‘‘collection of information’’ necessary or appropriate? providing real-time access to the filings • (45%), by posting the filings directly on requirements within the meaning of the Is additional guidance necessary in Paperwork Reduction Act of 1995 how to comply with the proposal? If so, their websites (29%) or via a hyperlink to our EDGAR database (15%). Not all (‘‘PRA’’).79 We are submitting the in what areas would guidance be proposed amendments to the Office of helpful? of the companies providing access directly on their websites provided Management and Budget (‘‘OMB’’) for • Should the disclosure appear in 80 access to all of their Exchange Act review in accordance with the PRA. other company filings, such as quarterly reports. The titles for the collection of reports? We encourage companies also information are ‘‘Form 10–K’’ and to put this disclosure in their annual While we believe that this proposal ‘‘Form 10–Q.’’ An agency may not report to shareholders. would benefit investors of all conduct or sponsor, and a person is not • Our proposal would require companies, we seek to minimize any required to respond to, a collection of disclosure of a company’s Internet new costs or burdens that affected information unless it displays a address. Is this requirement helpful to companies may incur. Therefore, we are currently valid OMB control number. investors? What are the ramifications of only proposing this new requirement for Form 10–K (OMB Control No. 3235– requiring disclosure of a company’s companies subject to the accelerated 0063) was adopted pursuant to Sections website address? Are there reasons why filing deadlines. According to available 13 and 15(d) of the Exchange Act and a company would not want to provide data, most of these companies already prescribes information that a registrant disclosure of its website address? provide some form of Internet access to must disclose annually to the market • We have not proposed a conforming corporate information. As with our about its business. Preparing and filing change to require disclosure of a proposal to accelerate filing deadlines, an annual report on Form 10–K is a company’s website address in Securities disclosure of real-time access to the collection of information. Act registration statements. Currently, filings of these companies may be Form 10–Q (OMB Control No. 3235– companies are only encouraged to particularly appropriate given their 0070) was adopted pursuant to Sections provide their website address in these ability to rely on short-form registration. 13 and 15(d) of the Exchange Act and prescribes information that a registrant documents. We request comment on 4. Transition Period whether we should make this must disclose quarterly to the market conforming change. Would there be any As with the proposal to shorten the about its business. Preparing and filing negative impacts from this change? deadlines for quarterly and annual a quarterly report on Form 10–Q is a collection of information. • reports, we anticipate that a transition Should a company be required to We currently estimate that Form 10– disclose whether it provides access to period would be necessary for this K results in a total annual compliance all of its Exchange Act filings (and not proposal, if adopted. This transition burden of 4,035,120 hours and an just its periodic and current reports)? period would give affected companies annual cost of $3,631,608,000. The Should access to exhibits or sufficient time to modify their websites burden was calculated by multiplying supplemental schedules be excluded? or make other arrangements as the estimated number of respondents Should Securities Act filings be necessary to provide the new disclosure. filing Form 10–K annually (9,384) by included? Should information under the Accordingly, we propose to make the the estimated average number of hours proxy rules be included, or at least the new disclosure requirement effective each entity spends completing the form information required by Part III of Form three months after the date of adoption. (1,720 hours). We estimate that 25% of 10–K incorporated by reference from a We request comment on the appropriate the burden is prepared by the company’s definitive proxy or length of this transition period. respondent (9,384 × 1,720 × 0.25 = information statement? 4,035,120). We estimate that 75% of the • We recognize that not all investors 78 In addition, according to the NIRI survey, 89% burden is prepared by outside advisors may have ready access to the Internet. of the respondents did not anticipate that they retained by the respondent at an average would encounter any significant problems if Are there additional ways to facilitate required to post Exchange Act reports on their access to Commission information for websites at the same time they transmitted the 79 44 U.S.C. 3501 et seq. those without Internet access? filings to the Commission. See note 49 above. 80 44 U.S.C. 3507(d) and 5 CFR 1320.11. VerDate 11 cost of $300 per hour (9,384 × 1,720 × website access to their Exchange Act and $618,075 in cost. Compliance with 0.75 × $300 = $3,631,608,000). This reports. 81 the disclosure requirement would be portion of the burden is reflected as a For our proposal regarding filing mandatory. There would be no cost. deadlines, the amount of information mandatory retention period for the required to be included in Exchange Act We currently estimate that Form 10– information disclosed, and responses to reports would remain the same. Q results in a total annual compliance the disclosure requirements will not be Accordingly, for purposes of the burden of 909,364 hours and an annual kept confidential. We do not believe Paperwork Reduction Act, our that the imposition of this requirement cost of $818,427,600. The burden was preliminary estimate is that the amount calculated by multiplying the estimated would alter significantly the number of of time necessary to prepare the reports, respondents that file on Form 10–K. number of reports on Form 10–Q filed and hence, the total amount of burden annually (26,746) by the estimated hours, would not change. However, C. Request for Comment average number of hours each entity there is the possibility that preparing spends completing the form (136 hours). these reports on a shorter timeframe We request comment in order to (a) We estimate that 25% of the burden is may result in the respondent investing evaluate whether the proposed × prepared by the respondent (26,746 more resources in technology, relying to collections of information are necessary 136 × 0.25 = 909,364). We estimate that a greater extent on outside advisors, or for the proper performance of the 75% of the burden is prepared by that the average cost associated with the functions of the Commission, including outside advisors retained by the portion of the burden prepared by whether the information will have respondent at an average cost of $300 outside advisors may increase. practical utility; (b) evaluate the per hour (26,746 × 136 × 0.75 × $300 = Accelerating the filing deadline may, on accuracy of our estimates of the burden $818,427,600). This portion of the the other hand, increase efficiencies in of the proposed collections of burden is reflected as a cost. preparing these reports and decrease the information; (c) determine whether burden over time. We request comment there are ways to enhance the quality, A. Summary of Proposed Amendments on whether, for purposes of the utility, and clarity of the information to be collected; (d) evaluate whether there The proposed amendments, if Paperwork Reduction Act, the burden are ways to minimize the burden of the adopted, would accelerate the filing will increase or decrease. If so, by what collections of information on those who deadlines of quarterly reports on Form amount? Would the proposal have any respond, including through the use of 10–Q and annual reports on Form 10– other effect on the total compliance automated collection techniques or K by companies subject to our proposed burden? We estimate that the preparation of other forms of information technology; public float and reporting history and (e) evaluate whether the proposed requirements. The proposed the required disclosure regarding information access in a respondent’s amendments will have any effects on amendments, if adopted, also would any other collections of information not require those companies to disclose in Form 10–K would add 0.50 burden hours to each annual report on Form previously identified in this section. their annual reports on Form 10–K 10–K. Thus, we estimate this aspect of where investors can obtain access to Any member of the public may direct the proposal will add an additional company filings, including whether the to us any comments concerning the 2,747 burden hours to the current Form company provides access to its accuracy of these burden estimates and 10–K (0.50 hours × 5,494 respondents). Exchange Act reports free of charge on any suggestions for reducing the We estimate that 25% of the burden is burdens. Persons who desire to submit its Internet website, as soon as × prepared by the respondent (0.50 comments on the collection of reasonably practicable, and in any event 5,494 × 0.25 = 687). We estimate that on the same day as, those reports are information requirements should direct 75% of the burden is prepared by their comments to the OMB, Attention: electronically filed with or furnished to outside advisors retained by the the Commission. If a company does not Desk Officer for the Securities and respondent at an average cost of $300 Exchange Commission, Office of provide website access in this manner, × × × per hour (0.50 5,494 0.75 $300 = Information and Regulatory Affairs, it must also disclose the reasons why it $618,075). This portion of the burden is does not do so, and where else investors Washington, DC 20503, and send a copy reflected as a cost. of the comments to Jonathan G. Katz, can access its Exchange Act reports. We As a result, we estimate the total also propose to require companies to Secretary, Securities and Exchange annual compliance burden for Form 10– Commission, 450 Fifth Street, NW., disclose their website address if they K after our proposed revisions to be have one. We believe that the proposed Washington, DC 20549, with reference 4,035,807 hours and an annual cost of to File No. S7–08–02. Requests for revisions would promote direct, $3,632,226,075, an increase of 687 hours materials submitted to the OMB by us uniform and more widespread with regard to these collections of dissemination of timely information to 81 We arrived at this estimate by multiplying the information should be in writing, refer investors and the markets and further approximate number of respondents that file on to File No. S7–08–02, and be submitted the purposes of short-form registration Form 10–K that do not only have a class of securities registered under Section 15(d) of the to the Securities and Exchange under the Securities Act. Exchange Act (and hence are less likely to have Commission, Records Management, listed equity and therefore a public float) (7,384) by B. Reporting and Cost Burden Estimates 74.4%, which represents the percentage of Office of Filings and Information companies in Standard & Poors Research Insight Services, 450 Fifth Street NW., We estimate that approximately 59% Compustat Database with a market capitalization Washington DC 20549. Because the of Form 10–K and Form 10–Q above $75 million out of the total number of OMB is required to make a decision respondents, or 5,494 respondents, companies in the Compustat Database with a market capitalization above $25 million (the upper concerning the collections of would satisfy our proposed definition of limit for small business filers on Form 10–KSB). It information between 30 and 60 days accelerated filers, and thus would be is our understanding that the data in the Compustat after publication, your comments are subject to accelerated deadlines and the Database is derived principally from larger best assured of having their full effect if requirement to make the enhanced companies, so our estimate may overstate the actual percentage of companies that would be affected by the OMB receives them within 30 days disclosure in their Form 10–K regarding the proposals. of publication. VerDate 11 IV. Cost-Benefit Analysis efficiently, which means more efficient We anticipate that some, and perhaps The proposed amendments are part of valuation and pricing. Shortening the most, of these costs may be short-term our initiative to modernize and improve due dates would help shorten the or one-time costs to adjust a company’s the regulatory system for periodic information gaps between the end of a reporting procedures to a shorter disclosure under the Exchange Act. We fiscal year or quarter, a company’s timeframe. Our proposed requirements are sensitive to the costs and benefits announcement of earnings results and that limit the application of shortened that result from our rules. In this the filing of more extensive information due dates only to companies with a section, we examine the benefits and in its periodic reports. The information minimum public float and reporting costs of our proposed amendments. We in Exchange Act reports, due to its history also may help to minimize the request that commenters provide views required nature and the liability to impact on companies that may find it and supporting information as to the which it is subject, provides a more difficult to bear these costs. In benefits and costs associated with the verification function against other addition, it is our understanding that a proposals. We seek estimates of these statements made by the company. company’s audit (or review in the case of interim financial statements) is costs and benefits, as well as any costs Investors can judge previous informal complete or substantially complete by and benefits not already identified. statements by the company against the The proposed rule and form changes more extensive disclosure provided in the time it issues its earnings would enhance the timeliness and the reports, including financial announcement, which often occurs availability of disclosure in Exchange statements prepared in accordance with today well before the proposed filing Act reports in two ways: generally accepted accounting due dates. We request comment on the • Shortening the due dates of principles. Accelerating the availability type, amount and duration of these quarterly and annual reports (and of this information thus shortens the costs. transition reports) for domestic delay before this verification can occur. The proposed amendments may have indirect effects as well. Preparing the reporting companies that meet certain In addition, the information in these information on a 33% shorter timeframe public float and reporting history reports often is used in comparative and could create a risk that the quality or requirements; and other quantitative financial analyses. • Requiring companies to disclose in Accordingly, earlier availability of this accuracy of the information would their annual reports on Form 10–K information may decrease the time diminish. We do not propose to change where investors can obtain access to before these analyses can occur. the liability standards for these reports, nor do we propose to decrease the company filings, including whether Also, the accelerated filing of reports amount of information required in these companies provide access to their could serve to make them more relevant reports. Investors and the capital Exchange Act reports on their Internet to investors, thereby increasing the use markets may suffer if quality or websites. of such reports and investor scrutiny of accuracy diminished, causing the them. Increased focus on and scrutiny of A. Acceleration of Quarterly and markets to function less efficiently and the reports may in turn cause an Annual Report Due Dates investment decisions to be impaired. increase in their quality. Moreover, Another possible effect is that more The due dates for quarterly and seasoned issuers incorporate affected companies may be late in filing annual reports by domestic issuers have information from their Exchange Act not changed in over 30 years, despite their periodic reports, or more reports in their Securities Act companies may request additional time enormous advances in information registration statements. Hence, investors technology and productivity. Many to file their reports under Exchange Act buying in these public offerings, Rule 12b–25. Either result could delay companies now routinely release particularly in on-going shelf offerings, quarterly and annual results well before the delivery of information to investors would also benefit from more timely and the market. Moreover, if a company they file their formal reports with us. disclosure. All of these benefits are However, the presentation of these was late in filing its reports, it would difficult to quantify. lose eligibility for short-form results vary and may not contain all of The proposed amendments may the information found in a company’s registration for at least one year, and increase the costs to the affected Securities Act Rule 144 and Form S–8 Exchange Act reports. Delayed filing of reporting companies, although would be temporarily unavailable reports means investors often make companies may, and some already do, during the period of noncompliance. decisions without the more extensive report within the proposed deadlines This could negatively affect information in the company’s Exchange voluntarily. Specifically, the shareholders reselling or attempting to Act reports. amendments may increase the costs in resell securities or employees whose Shortening the due dates for preparing quarterly and annual reports quarterly, annual and transition reports securities are subject to Form S–8. because although companies already Smaller companies are likely to be would provide many benefits. Most must prepare their quarterly and annual more sensitive to any increased costs in importantly, it would accelerate the reports, they may have to delay other preparing their reports. These entities delivery of information to investors and projects or use additional resources, may not have the infrastructure and the capital markets, enabling them to including in-house personnel, outside resources available or necessary to make more informed investment and legal counsel and outside auditors to 82 prepare their reports on a shorter valuation decisions. This helps the prepare the information in a shorter timeframe. As a result, shorter capital markets function more timeframe. These costs may vary by timeframes could discourage companies company given their individual near the accelerated filer threshold from 82 Some academic evidence shows that annual reports on Form 10–K filed through the EDGAR circumstances, such as the complexity becoming public companies or system provide incremental information to the of their business or industry. Some accessing the public securities markets. market even after the firm has made an earnings companies also may need to make This may adversely impact their ability announcement. See, for example, Daqing Qi, Woody additional capital investments, such as to raise capital, the ability of their Wu, and In-Mu Haw, 2000, ‘‘The Incremental Information Content of SEC 10–K Reports Filed in additional information systems, to investors to obtain adequate information Under the EDGAR System,’’ Journal of Accounting, prepare their reports in a shorter and the liquidity of their securities. Our Auditing, and Finance 15 (Winter) : 25–45. timeframe. proposal limits the application of VerDate 11 shortened deadlines to issuers with a registration of securities offerings by request comment on our assessment of certain public float and reporting seasoned issuers. One rationale for these benefits, including information on history, effectively excluding all issuers short-form registration is that the the ability to quantify these benefits. that may rely on our small business information in a company’s Exchange The proposed amendments may also reporting system. We request comment Act reports already has been adequately increase the costs to affected companies, regarding these matters, including disseminated and absorbed by the although we seek to minimize those empirical data if possible. market place. costs. Companies would be required to We considered several regulatory Many aspects of our disclosure system include minimal additional disclosure alternatives in formulating our were adopted well before the in their annual report on Form 10–K. proposals. In our 1998 release proposing revolutions in information technology Securities Act reform, we proposed brought about by the Internet. In For purposes of the Paperwork requiring companies to report selected modernizing and improving our Reduction Act, we estimate this will financial information on Form 8–K on disclosure system, we should recognize result in a total additional burden of 687 the earlier of the date they issue a press the benefits of the Internet in promoting hours and $618,075 in additional costs release containing earnings information the more widespread dissemination of for all affected companies. Our proposal or either the date that is 30 days after information. An efficient and cost would only apply to companies that the end of each of the first three quarters effective method for companies to make meet our proposed public float and of their fiscal year or 60 days after the information available about themselves reporting history requirements, which end of their fiscal year. However, this is through their Internet website. In should help to minimize the impact on information would not contain the more addition to other existing sources of companies potentially less able to bear extensive information found in the company information, such as our additional costs. Our proposal also quarterly and annual periodic reports, website, a company’s website is one would not require a company to provide and in many instances only would obvious place for many investors to find website access. Of course, we encourage repeat the information in the earnings information about a company. We all reporting companies to make their press release. Moreover, we have encourage companies to provide reports widely available through their subsequently adopted Regulation FD to investors with website access to their websites. We request comment on the address some of the concerns over Exchange Act reports. We believe number of issuers our proposal would selective disclosure of information.83 company disclosure should be more impact and the amount of any We also considered linking the filing of readily available to investors on a timely additional costs they may incur. a company’s annual and quarterly basis in a variety of locations to We considered several regulatory reports to its public earnings facilitate investor access to that alternatives in formulating our proposal. announcements, but we were concerned information. We believe it is important Many companies already voluntarily that this only would serve to delay for investors to know of additional provide at least some access to their earnings releases, which may not be sources where they can access company filings on their websites, but not all helpful to investors. information. provide access to all of their filings or We have been considering shortening Providing this disclosure and in real-time. Also, our proposed filing deadlines for all reporting encouraging companies to post their disclosure requirement for companies companies, although we do not propose Exchange Act reports on their websites that do not provide website access to do so at this time. Although we would provide many benefits. The provides investors with information on believe investors in less large or proposal protects investors by alerting where else they can obtain access to unseasoned companies may want and them to sources where they can obtain benefit from more timely disclosures direct and easy access to the these filings on an ongoing basis. We just as much as investors in larger, listed information they should have to make considered requiring website access to companies, we are concerned that this informed investment and valuation company reports as an additional may impose undue burden and expense decisions. It would help promote eligibility requirement for short-form on these companies. Accordingly, we consistent, direct, timely and more registration under the Securities Act. propose shortening the filing deadlines widespread access of information to However, we were concerned that the only for companies with a minimum investors and the markets, and further potential loss of form eligibility from public float or reporting history. Of the proper functioning of the integrated non-compliance with the requirement course, smaller companies may file their disclosure and short-form registration would be overly burdensome on reports earlier voluntarily. We have system. An efficiently functioning companies. We request comment been considering several different registration system facilitates capital regarding the relative costs and benefits conditions for shortening deadlines, but formation. Not all reporting companies of pursuing alternative regulatory based on our research and past now make their Exchange Act filings approaches. experience, we believe the public float available through their websites, and V. Consideration of Impact on the test currently used in Form S–3 is not all the ones that do make Economy, Burden on Competition, and consistent with our purposes. We information available provide access in Promotion of Efficiency, Competition, request comment regarding the relative real-time. Our proposal would and Capital Formation costs and benefits of pursuing encourage uniform best practices to aid alternative regulatory approaches. in an investor’s search for timely For purposes of the Small Business information, thereby potentially Regulatory Enforcement Fairness Act of B. Website Access to Information reducing the costs to gather such 1996, or ‘‘SBREFA,’’ 84 we solicit data to Widespread access to timely company information. For those companies that determine whether the proposed information promotes the efficient elect not to provide website access, our amendments constitute ‘‘major’’ rules. functioning of the capital markets. Also, proposed disclosure requirement would Under SBREFA, a rule is considered ready access to Exchange Act provide investors with the information information is critical to short-form necessary to locate this information on 84 Pub. L. No. 104–121, Title II, 110 Stat. 857 an ongoing basis. These potential (1996) (codified in various sections of 5 U.S.C., 15 83 See 17 CFR 243.100–103. benefits are difficult to quantify. We U.S.C. and as a note to 5 U.S.C. 601). VerDate 11 ‘‘major’’ where, if adopted, it results or empirical data and other factual support A. Reasons for, and Objectives of, is likely to result in: for their views if possible. Proposed Amendments • an annual effect on the economy of Section 2(b) of the Securities Act 87 The proposed amendments have two $100 million or more (either in the form and Section 3(f) of the Exchange Act 88 primary objectives. First, we propose to of an increase or a decrease); accelerate disclosure of information to • a major increase in costs or prices requires us, when engaging in for consumers or individual industries; rulemaking where we are required to investors and the capital markets by or consider or determine whether an action shortening the due dates of quarterly • significant adverse effects on is necessary or appropriate in the public and annual periodic reports and competition, investment or innovation. interest, to consider, in addition to the transition reports for domestic reporting We request comment on the potential protection of investors, whether the companies that meet certain minimum impact of the proposed amendments on action will promote efficiency, public float and reporting history the economy on an annual basis. competition, and capital formation. The requirements. These due dates have not Commenters are requested to provide proposed amendments would enhance changed in over 30 years, despite empirical data and other factual support our reporting requirements in light of advances in information technology and productivity and increases in the pace for their views if possible. technological advances. The purpose of of and need for communications in the Section 23(a)(2) of the Exchange the amendments is to promote greater 85 capital markets. Accelerating the Act requires us, when adopting rules timeliness and accessibility of this under the Exchange Act, to consider the delivery of information to the capital information so that investors can more impact that any new rule would have on markets would help enhance the easily make informed investment and competition. In addition, Section efficient functioning of those markets. 23(a)(2) prohibits us from adopting any voting decisions. Informed investor Many companies routinely release rule that would impose a burden on decisions generally promote market quarterly and annual financial results competition not necessary or efficiency and capital formation. As before they file their formal reports with appropriate in furtherance of the noted above, however, the proposals us. However, the presentation in these purposes of the Exchange Act. could have certain indirect negative results vary and may not contain all of The proposed amendments are effects, such as discouraging or the more extensive information found in intended to improve the timeliness and precluding some companies near the the company’s formal reports. accessibility of Exchange Act reports to threshold from using short-form Shortening the deadlines would shorten investors and the financial markets. We registration, which could adversely this information gap, thereby increasing anticipate these proposals would impact their ability to raise capital. The the relevancy of those reports. Investors enhance the proper functioning of the possibility of these effects and their buying in public offerings of issuers that capital markets. This increases the magnitude if they were to occur are incorporate their Exchange Act reports competitiveness of companies difficult to quantify. in their Securities Act registration participating in the U.S. capital markets. We request comment on whether the statements also would benefit from The proposals would affect certain proposed amendments, if adopted, more timely disclosure. companies and not others, so the would promote efficiency, competition, Second, we wish to encourage more impacts of the proposal may not be and capital formation. Commenters are direct and widespread accessibility and equally distributed. Also, if not all dissemination of timely information to requested to provide empirical data and competitors in a given industry are investors and the capital markets in a other factual support for their views if subject to accelerated deadlines, variety of locations. Accordingly, we possible. information about some competitors propose to require companies subject to may be disclosed ahead of other VI. Initial Regulatory Flexibility the accelerated filing deadlines to competitors (for example, the filing of Analysis disclose in their annual reports on Form material contracts).86 This could 10–K where investors can obtain access potentially give some competitors an This Initial Regulatory Flexibility to company filings, including whether informational advantage. If the Analysis, or IRFA, has been prepared in the company provides access to its proposals to shorten filing deadlines accordance with the Regulatory Exchange Act reports free of charge on increased the number of companies who Flexibility Act. 89 This IRFA involves its Internet website, as soon as filed their reports late, this could reduce proposed amendments to the rules and reasonably practicable, and in any event the number of companies eligible for forms under the Securities Act and the on the same day as, those reports are short-form and delayed shelf Exchange Act to: electronically filed with or furnished to registration. For our website access • Shorten the due dates of quarterly the Commission. Our proposal would proposal, companies that would be and annual reports (and transition help promote consistent, direct, timely subject to accelerated deadlines may reports) for domestic reporting and more widespread access of incur increased minimal costs from companies that meet certain public float information to investors and the markets providing additional disclosure that and further the proper functioning of and reporting history requirements; and would not be incurred by companies not the integrated disclosure and short-form subject to these deadlines. • Requiring companies to disclose in registration system. Not all public We request comment on whether the their annual reports on Form 10–K companies currently make their filings proposed amendments, if adopted, where investors can obtain access to available on their websites, and not all would impose a burden on competition. company filings, including whether provide access to all of their reports or Commenters are requested to provide companies provide access to their in real-time. Our proposal would thus Exchange Act reports on their Internet promote greater access for investors. 85 15 U.S.C. 78w(a)(2). websites. 86 The Commission does have rules in place that B. Legal Basis allow for the non-disclosure of certain limited information filed with the Commission. See, for 87 17 U.S.C. 77b(b). We are proposing the amendments to example, Exchange Act Rule 24b–2 [17 CFR 88 15 U.S.C. 78c(f). the forms and rules under the authority 240.24b–2]. 89 5 U.S.C. 603. set forth in Sections 3(b) and 19(a) of the VerDate 11 Securities Act 90 and Sections 12, 13, D. Reporting, Recordkeeping, and Other reports free of charge on its Internet 15(d) and 23(a) of the Exchange Act. Compliance Requirements website, as soon as reasonably For reporting companies that meet our practicable, and in any event on the C. Small Entities Subject to the same day as, those reports are Proposed Amendments proposed public float and reporting history requirements, we are proposing electronically filed with or furnished to The proposed amendments would to shorten the due dates of annual the Commission. If a company does not affect certain small entities that are reports on Form 10–K from 90 days to provide such access, it must also required to file quarterly and annual 60 days after a reporting company’s disclose why it does not do so and where else investors can access these periodic reports and transition reports fiscal year end and the due dates of filings electronically immediately upon under the Exchange Act. For purposes quarterly reports on Form 10–Q from 45 filing. In formulating our proposal, we of the Regulatory Flexibility Act, days to 30 days after the first three have sought to minimize its costs, Exchange Act Rule 0–10(a) 91 defines the quarters of a company’s fiscal year. We particularly on small entities. The term ‘‘small business’’ to be an issuer, propose similar changes to transition reports these companies must file when proposal would apply only to other than an investment company, that, companies that met our proposed public on the last day of its most recent fiscal they change their fiscal year. We do not propose to change the filing deadlines float and reporting history requirements. year, has total assets of $5 million or for other companies, including small Companies would not be required to less. The Securities Act defines a ‘‘small business issuers eligible to rely on our establish an Internet website for business’’ issuer, other than investment small business reporting system, at this purposes of this requirement if they did companies, to be an issuer that, on the time. not otherwise have one. Also, a last day of its most recent fiscal year, While the amount of information company could elect not to provide has total assets of $5 million or less and required to be included in Exchange Act website access to their reports as long as is engaged in or proposes to engage in reports, and hence the amount of time they disclosed that they have elected an offering of securities of $5 million or necessary to prepare them, would not to do so, the reasons why they have less.92 remain the same, affected companies elected not to do so (which could We estimate that there are may be required to use additional include cost) and where else the public approximately 2,500 companies subject resources, including in-house can access the company’s reports. We to the reporting requirements of personnel, in preparing their reports on request comment on whether there are Sections 13 or 15(d) of the Exchange Act a shorter timeframe. Small entities that additional alternatives to further our that have assets of $5 million or less. meet the public float and reporting goal that we have not mentioned. The proposal to shorten the deadlines history requirements may incur We seek comment on these views. for annual and quarterly periodic and additional costs in seeking the help of How difficult would it be for affected small entities to comply with the transition reports and the proposal outside experts, particularly outside legal counsel and auditors. We request website proposal? Would our proposal regarding website access to Exchange comment on the ability of affected small disproportionately impact small Act reports would apply to these small entities to meet shortened filing entities? entities if they have a public float of $75 deadlines. If they would incur E. Duplicative, Overlapping or million or more, have been subject to additional costs, what are the particular Conflicting Federal Rules the Exchange Act’s reporting types and amounts of costs that may be requirements for at least one year, and required, and would small entities be We believe that there are no rules that have filed at least one annual report. We able to bear these costs? Would the duplicate, overlap or conflict with the have no way to determine exactly how proposal disproportionately impact proposed amendments. many small entities meet these small entities? F. Significant Alternatives requirements, although it is unlikely Companies that were late in filing that many of these entities would meet their reports would lose eligibility for The Regulatory Flexibility Act directs the public float requirement. short-form registration for at least one us to consider significant alternatives According to the Standard & Poors year, and Securities Act Rule 144 and that would accomplish our stated Research Insight Compustat Database, of Form S–8 would be temporarily objectives, while minimizing any the 711 reporting companies listed with unavailable during the period of significant adverse impact on small assets of $5 million or less, 10, or 1.4%, noncompliance. 94 On the margin, entities. In connection with our proposals, we considered the following had a market capitalization greater than affected small entities that are unable, or 93 cannot afford, to prepare their reports alternatives: $75 million. Assuming that this • Establishing different compliance or sample is representative of all small on a shorter timeframe may be discouraged from remaining public reporting requirements or timetables entities, the public float requirement that take into account the resources would have the effect of almost companies or accessing the public markets. This may adversely affect their available to small entities; completely excluding all small entities. • Clarifying, consolidating or We request comment on the number of ability to raise capital. We request comment on the likelihood of this simplifying compliance and reporting small entities that would be impacted requirements under the rules for small by our proposals, including any possibility. We also propose to require entities; available empirical data. • accelerated filers to disclose in their Using performance rather than annual reports on Form 10–K where design standards; and 90 • 15 U.S.C. 77c(b) and 77s(a). investors can obtain access to company Exempting small entities from all or 91 17 CFR 240.0–10(a). filings, including whether the company part of the requirements. 92 17 CFR 230.157. Our proposals to shorten the filing provides access to its Exchange Act 93 It is our understanding that the data in the deadlines would apply only to entities Compustat Database is derived principally from larger companies, so our estimate could understate 94 One-time extensions of due dates are available that meet minimum public float and the actual percentage of companies that would be under certain circumstances under Exchange Act reporting history requirements, which affected by the proposals. Rule 12b–25. should serve to exclude almost all small VerDate 11 entities. As a result, different timetables Companies could choose whether to 78o, 78u–5, 78w, 78ll(d), 78mm, 79e, 79n, would apply for most small entities. We provide website access and therefore the 79t, 80a–8, 80a–29, 80a–30, 80a–31(c), 80a– strive to strike a balance between timely disclosure that would be necessary in 37, 80a–38(a) and 80b–11, unless otherwise delivery of information to investors and their annual report on Form 10–K. This noted. giving companies enough time to allows companies, including small * * * * * prepare their reports. We have been entities, the flexibility to choose the 2. Section 229.101 is amended by considering the alternative of only alternative that bests suits their revising paragraph (e) to read as follows: shortening the filing deadlines for individual circumstances. We believe § 229.101 (Item 101) Description of companies whose securities are listed this freedom should apply to all entities, business. on the NYSE or AMEX or quoted on large and small. We are not aware of * * * * * Nasdaq National Market System or ways to further clarify, consolidate or (e) Available information. Disclose the Small Cap Market. However, we believe simplify these proposals for small information in paragraphs (e)(1) and investors in companies that are not as entities. We request comment, however, (e)(2) of this section in any registration large or listed but nevertheless meet the on these matters. statement you file under the Securities public float or reporting history Act (15 U.S.C. 77a et seq.), and disclose requirements may want and benefit G. Request for Comments from more timely disclosures just as We encourage the submission of the information in paragraphs (e)(2) and much as investors in larger, listed comments with respect to any aspect of (e)(3) of this section if you are an companies. Accordingly, we are not this IRFA. In particular, we request accelerated filer (as defined in proposing to exempt small entities in comment on the number of small § 240.12b–2 of this chapter) filing an their entirety from the coverage of these entities that would be affected by the annual report on Form 10–K (§ 249.310 proposals, but we will consider proposed amendments, the nature of the of this chapter). comments on this point. impact, how to quantify the number of (1) Whether you file reports with the In addition, we are not aware of how small entities that would be affected, Securities and Exchange Commission. If to further clarify, consolidate or and how to quantify the impact of, the you are reporting company, identify the simplify these proposals for small proposed amendments. Commenters are reports and other information you file entities. In this regard, we are proposing requested to describe the nature of any with the SEC. (2) That the public may read and copy already to limit the shortened deadlines effect and provide empirical data and any materials you file with the SEC at to entities that meet minimum public other factual support for their views if the SEC’s Public Reference Room at 450 float and reporting history requirements. possible. These comments will be Fifth Street, NW., Washington, DC We do not consider using performance considered in the preparation of the 20549. State that the public may obtain rather than design standards to be Final Regulatory Flexibility Analysis, if information on the operation of the consistent with our statutory mandate of the proposed amendments are adopted, Public Reference Room by calling the investor protection in the present and will be placed in the same public SEC at 1–800–SEC–0330. If you are an context. Because specified information file as comments on the proposed electronic filer, state that the SEC in Exchange Act reports must be amendments. reported in a timely manner to be maintains an Internet site that contains useful, design standards are necessary to VII. Statutory Authority reports, proxy and information achieve the objectives of the proposal. The amendments contained in this statements, and other information We request comment, however, on these release are being proposed under the regarding issuers that file electronically matters. authority set forth in Sections 3(b) and with the SEC and state the address of Our proposals regarding disclosure of 19(a) of the Securities Act and Sections that site (http://www.sec.gov). You are website access to company reports are 12, 13, 15(d) and 23(a) of the Exchange encouraged to give your Internet designed to enhance the accessibility Act. address, if available, except that if you and dissemination of information to are an accelerated filer filing an annual investors. These proposals also would Text of Proposed Amendments report on Form 10–K, you must disclose apply only to entities that met minimum List of Subjects in 17 CFR Parts 229, your Internet address, if you have one. public float and reporting history 240 and 249 (3)(i)Whether you make available free of charge on your Internet website, if requirements, which should serve to Reporting and recordkeeping you have one, your annual report on exclude almost all small entities. We requirements, Securities. believe our proposals strike a balance Form 10–K, quarterly reports on Form between providing investor access to In accordance with the foregoing, 10–Q (§ 249.308a of this chapter), information and giving companies Title 17, Chapter II of the Code of current reports on Form 8–K (§ 249.308 alternatives in providing this access. Federal Regulations is proposed to be of this chapter), and amendments to Different compliance or reporting amended as follows. those reports filed or furnished pursuant requirements for affected small entities PART 229—STANDARD to Section 13(a) or 15(d) of the Exchange or exemptions for all affected small INSTRUCTIONS FOR FILING FORMS Act (15 U.S.C. 78m(a) or 78o(d)) as soon entities are not considered warranted at UNDER SECURITIES ACT OF 1933, as reasonably practicable after, and in this time because it is just as important SECURITIES EXCHANGE ACT OF 1934 any event on the same day as, you that information be adequately AND ENERGY POLICY AND electronically file such material with, or disseminated and easily available for CONSERVATION ACT OF 1975— furnish it to, the SEC; affected small entities as it is for large REGULATION S–K (ii) If you do not make your filings entities, if not more so. The expected available in this manner, the reasons low costs of complying with the 1. The authority citation for part 229 why you do not do so (including, where proposal, as well as the effect of the continues to read, in part, as follows: applicable, that you do not have an proposed public float requirement in Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, Internet website); lessening the impact on small entities, 77k, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), (iii) If you do not make your filings also contributed to our proposal not to 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, available in this manner, one or more exclude small entities in their entirety. 77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 78n, locations where the public can access VerDate 11 these filings electronically immediately § 249.308b) for its annual and quarterly accelerated filers filing on Form 10–Q upon filing, if any, and whether there is reports; and and 45 days for all other issuers. a fee for such access; and (ii) Meets the conditions in paragraph * * * * * (iv) Whether you voluntarily will (1) of this definition. provide electronic or paper copies of * * * * * PART 249—FORMS, SECURITIES your filings free of charge upon request. 5. Section 240.13a–10 is amended by: EXCHANGE ACT OF 1934 * * * * * a. Removing the phrase ‘‘90 days’’ and 7. The authority citation for Part 249 adding, in its place, the phrase ‘‘the continues to read, in part, as follows: PART 240—GENERAL RULES AND number of days specified in paragraph REGULATIONS, SECURITIES (j) of this section’’ in the first sentence Authority: 15 U.S.C. 78a, et seq., unless otherwise noted. EXCHANGE ACT OF 1934 of paragraph (b) and the second sentence of paragraph (f); * * * * * 3. The authority citation for Part 240 8. Section 249.308a is revised to read continues to read, in part, as follows: b. Removing the phrase ‘‘45 days’’ and adding, in its place, the phrase ‘‘the as follows: Authority: 15 U.S.C. 77c, 77d, 77g, 77j, number of days specified in paragraph § 249.308a Form 10–Q, for quarterly and 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, (j) of this section’’ in the first sentence 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, transition reports under sections 13 or 15(d) 78j–1, 78k, 78k–1, 78l, 78m, 78n, 78o, 78p, of paragraph (c), the second sentence of of the Securities Exchange Act of 1934. 78q, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 79q, paragraph (e)(2), and the third sentence (a) Form 10–Q shall be used for 79t, 80a–20, 80a–23, 80a–29, 80a–37, 80b–3, of paragraph (f); and quarterly reports under Section 13 or 80b–4 and 80b–11, unless otherwise noted. c. Adding paragraph (j) before the 15(d) of the Securities Exchange Act of * * * * * Note to read as follows: 1934 (15 U.S.C. 78m or 78o(d)), required 4. Section 240.12b–2 is amended by § 240.13a–10 Transition reports. to be filed pursuant to § 240.13a–13 or adding the definition of ‘‘Accelerated § 240.15d–13 of this chapter. A * * * * * filer’’ before the definition of ‘‘Affiliate’’ quarterly report on this form pursuant to (j)(1)For transition reports to be filed to read as follows: § 240.13a–13 or § 240.15d–13 of this on the form appropriate for annual chapter shall be filed within the § 240.12b–2 Definitions. reports of the issuer, the number of days following period after the end of the * * * * * shall be 60 days for accelerated filers (as first three fiscal quarters of each fiscal Accelerated filer. (1)The term defined in § 240.12b–2) filing on Form year, but no quarterly report need be ‘‘accelerated filer’’ means an issuer 10–K (§ 249.310 of this chapter) and 90 filed for the fourth quarter of any fiscal filing a report pursuant to Sections 12, days for all other issuers; and year: 13 or 15(d) of the Act (15 U.S.C. 78l, (2) For transition reports to be filed on (1) 30 days after the end of the fiscal 78m or 78o(d)) after it first meets the Form 10–Q or Form 10–QSB (§ 249.308a quarter for accelerated filers (as defined following conditions: or § 249.308b of this chapter), the in § 240.12b–2 of this chapter); or (i) The aggregate market value of the number of days shall be 30 days for (2) 45 days after the end of the fiscal voting and non-voting common equity accelerated filers filing on Form 10–Q quarter for all other registrants. held by non-affiliates of the issuer is $75 and 45 days for all other issuers. (b) Form 10–Q also shall be used for million or more; * * * * * transition and quarterly reports filed (ii) The issuer has been subject to the 6. Section 240.15d–10 is amended by: pursuant to § 240.13a–10 or § 240.15d– requirements of Section 13(a) or 15(d) of a. Removing the phrase ‘‘90 days’’ and 10 of this chapter. Such transition or the Act for a period of at least twelve adding, in its place, the phrase ‘‘the quarterly reports shall be filed in calendar months preceding the filing of number of days specified in paragraph accordance with the requirements set the report; and (j) of this section’’ in the first sentence forth in § 240.13a–10 or § 240.15d–10 of (iii) The issuer has filed at least one of paragraph (b) and the second this chapter applicable when the annual report pursuant to Section 13(a) sentence of paragraph (f); registrant changes its fiscal year end. or 15(d) of the Act. b. Removing the phrase ‘‘45 days’’ and 9. Form 10–Q (referenced in § 249.308a) is amended by revising Note to paragraph (1): The aggregate adding, in its place, the phrase ‘‘the market value of the issuer’s outstanding number of days specified in paragraph General Instruction A.1. to read as voting and non-voting common equity shall (j) of this section’’ in the first sentence follows: be computed by use of the price at which the of paragraph (c), the second sentence of Note: The text of Form 10–Q does not, and common equity was last sold, or the average paragraph (e)(2), and the third sentence this amendment will not, appear in the Code of the bid and asked prices of such common of paragraph (f); and of Federal Regulations. equity, in the principal market for such c. Adding paragraph (j) before the UNITED STATES SECURITIES AND common equity, as of a date no more than 60 Note to read as follows: and no less than 30 days before the last day EXCHANGE COMMISSION of the issuer’s most recently completed fiscal § 240.15d–10 Transition reports. Washington, D.C. 20549 year. * * * * * FORM 10–Q (2) Once an issuer becomes an (j)(1) For transition reports to be filed accelerated filer, it will remain an on the form appropriate for annual GENERAL INSTRUCTIONS accelerated filer unless the issuer reports of the issuer, the number of days A. Rule as to Use of Form 10–Q. becomes eligible to use Forms 10–KSB shall be 60 days for accelerated filers (as 1. Form 10–Q shall be used for quarterly and 10–QSB (§ 249.310b and defined in § 240.12b–2) filing on Form reports under Section 13 or 15(d) of the § 249.308b) for its annual and quarterly 10–K (§ 249.310 of this chapter) and 90 Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)), filed pursuant to Rule 13a– reports. In that case, the issuer will not days for all other issuers; and 13 (§ 240.13a–13 of this chapter) or Rule become an accelerated filer again unless (2) For transition reports to be filed on 15d–13 (§ 240.15d–13 of this chapter). A it subsequently: Form 10–Q or Form 10–QSB (§ 249.308a quarterly report on this form pursuant to (i) Becomes ineligible to use Forms or § 249.308b of this chapter), the Rule 13a–13 or Rule 15d–13 shall be filed 10–KSB and 10–QSB (§ 249.310b and number of days shall be 30 days for within the following period after the end of VerDate 11 each of the first three fiscal quarters of each (1) In the case of an annual report, not (4) Notwithstanding paragraphs (2) and (3) fiscal year, but no report need be filed for the later than: of this General Instruction A., all schedules fourth quarter of any fiscal year: (i) 90 days after the end of the fiscal required by Article 12 of Regulation S–X a. 30 days after the end of the fiscal quarter year covered by the report for (§§ 210.12–01—210.12–29 of this chapter) for accelerated filers (as defined in accelerated filers (as defined in may, at the option of the registrant, be filed § 240.12b–2 of this chapter); or as an amendment to the report not later than b. 45 days after the end of the fiscal quarter § 240.12b–2 of this chapter); or (ii) 120 days after the end of the fiscal the following periods: for all other issuers. (a) In the case of an annual report, not later year covered by the report for all other * * * * * than: 10. Section 249.310 is revised to read registrants; and (i) 90 days after the end of the fiscal year (2) In the case of a transition report, as follows: covered by the report for accelerated filers (as not later than 30 days after the due date defined in § 240.12b–2 of this chapter); or § 249.310 Form 10–K, for annual and of the report. (ii) 120 days after the end of the fiscal year transition reports pursuant to Sections 13 11. Form 10–K (referenced in covered by the report for all other registrants; or 15(d) of the Securities Exchange Act of § 249.310) is amended by revising and 1934. General Instruction A. and the (b) In the case of a transition report, not (a) This form shall be used for annual paragraph before the ‘‘Note’’ on the later than 30 days after the due date of the reports pursuant to Sections 13 or 15(d) cover page to read as follows: report. of the Securities Exchange Act of 1934 Note: The text of Form 10–K does not, and * * * * * (15 U.S.C. 78m or 78o(d)) for which no this amendment will not, appear in the Code other form is prescribed. This form also of Federal Regulations. FORM 10–K shall be used for transition reports filed * * * * * UNITED STATES SECURITIES AND If the registrant is an accelerated filer, state pursuant to Section 13 or 15(d) of the EXCHANGE COMMISSION Securities Exchange Act of 1934. the aggregate market value of the voting and (b) Annual reports on this form shall Washington, D.C. 20549 non-voting common equity held by non- affiliates computed by reference to the price be filed within the following period: FORM 10–K at which the common equity was last sold, (1) 60 days after the end of the fiscal * * * * * or the average bid and asked price of such year covered by the report for common equity, as of a specified date no accelerated filers (as defined in GENERAL INSTRUCTIONS more than 60 and no less than 30 days before § 240.12b–2 of this chapter); or A. Rule as to Use of Form 10–K. the end of the registrant’s most recently (2) 90 days after the end of the fiscal (1) This Form shall be used for annual completed fiscal year. If the registrant is not year covered by the report for all other reports pursuant to Section 13 or 15(d) of the an accelerated filer (as defined in Rule 12b– registrants. Securities Exchange Act of 1934 (15 U.S.C. 2 of the Act), state the aggregate market value (c) Transition reports on this form 78m or 78o(d)) (the ‘‘Act’’) for which no other of the voting and non-voting common equity shall be filed in accordance with the form is prescribed. This Form also shall be held by non-affiliates used to determine used for transition reports filed pursuant to whether the registrant was an accelerated requirements set forth in § 240.13a–10 Section 13 or 15(d) of the Act. or § 240.15d–10 of this chapter filer and specify the date used for purposes (2) Annual reports on this Form shall be of this computation. applicable when the registrant changes filed within the following period: its fiscal year end. (a) 60 days after the end of the fiscal year Note. *** (d) Notwithstanding paragraphs (b) covered by the report for accelerated filers (as * * * * * and (c) of this section, all schedules defined in § 240.12b–2 of this chapter); or By the Commission. required by Article 12 of Regulation S– (b) 90 days after the end of the fiscal year X (§§ 210.12–01—210.12–29 of this covered by the report for all other registrants. Dated: April 12, 2002. (3) Transition reports on this Form shall be Margaret H. McFarland, chapter) may, at the option of the filed in accordance with the requirements set Deputy Secretary. registrant, be filed as an amendment to forth in § 240.13a–10 or § 240.15d–10 of this the report not later than the following chapter applicable when the registrant [FR Doc. 02–9454 Filed 4–22–02; 8:45 am] periods: changes its fiscal year end. BILLING CODE 8010–01–P VerDate 11 Part VI Securities and Exchange Commission 17 CFR Parts 230, 239 and 249 Form 8–K Disclosure of Certain Management Transactions; Proposed Rule VerDate 11 SECURITIES AND EXCHANGE SUPPLEMENTARY INFORMATION: We are securities registered under Exchange COMMISSION proposing amendments to Form 8–K 2 Act Section 12 to report information under the Securities Exchange Act of about: 17 CFR Parts 230, 239 and 249 1934 (‘‘Exchange Act’’),3 and related • Directors’ and executive officers’ amendments to Rule 144 4 and Forms S– transactions in company equity [Release No. 33–8090; 34–45742; File No. 5 6 7 securities (including derivative S7–09–02] 2, S–3, and S–8 under the Securities Act of 1933 (‘‘Securities Act’’).8 securities transactions and transactions RIN 3235–AI43 with the company); I. Executive Summary • Directors’ and executive officers’ Form 8–K Disclosure of Certain In order to keep current the arrangements for the purchase or sale of Management Transactions information required to be included in company equity securities intended to the registration statement under Section satisfy the affirmative defense AGENCY: Securities and Exchange 12 of the Exchange Act,9 Exchange Act conditions of Exchange Act Rule 10b5– Commission. Section 13(a) 10 requires every issuer of 1(c); 16 and ACTION: Proposed rule. a security registered under Section 12 to • Loans of money to directors and file such information as the Commission executive officers made or guaranteed SUMMARY: We are proposing may prescribe by rule ‘‘as necessary or by the company or an affiliate of the amendments that would require some appropriate for the proper protection of company. public companies to file current reports investors and to insure fair dealing in Reports of transactions and loans with describing: directors’ and executive the security.’’ For these purposes, our an aggregate value of $100,000 or more officers’ transactions in company equity rules require annual reports on Forms would be due within two business days. securities, directors’ and executive 10–K and 10–KSB,11 quarterly reports Reports of transactions and loans with officers’ arrangements for the purchase on Forms 10–Q and 10–QSB,12 and a smaller aggregate value, grants and and sale of company equity securities, current reports on Form 8–K.13 Similar awards pursuant to employee benefit and loans of money to a director or disclosure must be provided in the plans, and Rule 10b5–1 arrangements executive officer made or guaranteed by proxy statement for the annual meeting generally would be due by the close of the company or an affiliate of the at which directors are elected required business on the second business day of company. The purpose of the proposed by the rules under Exchange Act 14(a) 14 the following week. However, reports of amendments is to provide investors because it is material to shareholders’ transactions and loans with an aggregate with prompt disclosure of this voting decisions. We also require value less than $10,000 would be information, so that investors will be reporting companies to file these reports deferrable until the aggregate able to make investment and voting and proxy statements in electronic cumulative value of those unreported decisions on a better-informed and more format.15 events for the same director or executive timely basis. We propose to amend Form 8–K officer exceeds $10,000. DATES: Comments should be received on under the Exchange Act to require II. Background or before June 24, 2002. companies with a class of equity A company’s registration statement on ADDRESSES: Comments should be 17 2 Form 10 or Form 10–SB to register a submitted in triplicate to Jonathan G. 17 CFR 249.308. 3 class of equity securities under Section Katz, Secretary, Securities and Exchange 15 U.S.C. 78a et seq. 4 17 CFR 230.144. 12 of the Exchange Act must identify Commission, 450 Fifth Street, NW, 5 17 CFR 239.12. management and include information Washington, DC 20549–0609. 6 17 CFR 239.13. about management’s business Comments also may be submitted 7 17 CFR 239.16b. experience, executive compensation, electronically at the following electronic 8 15 U.S.C. 77a et seq. management’s security ownership, and 9 mail address: [email protected]. 15 U.S.C. 78l. management’s transactions with and 10 15 U.S.C. 78m(a). All comment letters should refer to File indebtedness to the company.18 This No. S7–09–02; this file number should 11 17 CFR 249.310 and 17 CFR 249.310b, respectively. Generally, Exchange Act Rules 13a–1 required disclosure provides investors be included in the subject line if [17 CFR 240.13a–1] and 15d–1 [17 CFR 240.15d– with information about: electronic mail is used. Comment letters 1] require issuers with securities registered under • Executive compensation paid in the will be available for public inspection Section 12 of the Exchange Act and issuers subject form of securities; and copying in the Commission’s Public to the reporting requirements of Section 15(d) of the • Exchange Act [15 U.S.C. 78o(d)] to file such annual The extent to which management’s Reference Room, 450 Fifth Street, NW, reports. economic interests are aligned with Washington, DC 20549. Electronically 12 17 CFR 249.308a and 17 CFR 249.308b, those of shareholders through submitted comment letters will be respectively. Generally, Exchange Act Rules 13a–13 ownership of company equity securities; posted on the Commission’s Internet [17 CFR 240.13a–13] and 15d–13 [17 CFR 240.15d– and 1 13] requires issuers with securities registered under • Web Site (http://www.sec.gov). Section 12 of the Exchange Act and issuers subject Management’s transactions with FOR FURTHER INFORMATION CONTACT: to the reporting requirements of Section 15(d) of the and relationships to the company Anne M. Krauskopf, Special Counsel, at Exchange Act to file such quarterly reports. (202) 942–2900, or Mark A. Borges, 13 Generally, Exchange Act Rule 13a–11 [17 CFR 16 17 CFR 240.10b5–1(c). 240.13a–11] requires issuers with securities 17 17 CFR 249.210 and 17 CFR 249.210b, Special Counsel, at (202) 942–2910, registered under Section 12 of the Exchange Act to respectively. Form 8–A [17 CFR 249.208a] is Division of Corporation Finance, U.S. file a current report on Form 8–K within the period available for the same purpose for an issuer that is Securities and Exchange Commission, specified by the form, unless the issuer previously already subject to a reporting requirement under 450 Fifth Street, NW, Washington, DC reported substantially the same information. Section 13 or Section 15(d) of the Exchange Act. Exchange Act Rule 15d–11 [17 CFR 240.15d–11] Form 8–A is an abbreviated form that does not 20549–0312. generally applies the same requirement to issuers require these issuers to repeat information they subject to the reporting requirements of Section previously filed. 1 We do not edit personal identifying information, 15(d) of the Exchange Act. 18 Items 401, 402, 403, and 404 of Regulations S– such as names or electronic mail addresses, from 14 15 U.S.C. 78n(a), which authorizes Regulation K [17 CFR 229.401, 402, 403, and 404] and S–B [17 electronic submissions. You should submit only 14A [17 CFR 240.14a–1 et seq]. CFR 228.401, 402, 403, and 404]. Respectively, they information that you wish to make available 15 Rule 101(a)(1)(iii) of Regulation S–T [17 CFR comprise Items 5, 6, 4, and 7 of Form 10 and Form publicly. 232.101(a)(1)(iii)]. 10–SB. VerDate 11 beyond the scope of employment that always readily accessible because they III. Proposed Changes could affect management’s performance are not required to be filed A. Addition of New Form 8–K Item of its duties. electronically.23 As described below, Changes in securities ownership and the proposal would require the We propose to amend the current some management transactions that are company to report electronically report on Form 8–K to add Item 10, disclosed also can provide information significant information concerning which would require companies with a regarding management’s view of the transactions that may reveal directors’ class of equity securities registered under Section 12 to report on Form 8– company’s performance and prospects. and executive officers’ views as to K: Under current regulations, the company prospects.24 We believe that • information must be updated annually Each director’s and executive these proposed reports would protect officer’s transactions in company equity in the company’s annual report on Form investors and promote fair dealing in 19 securities (whether or not of the class 10–K or Form 10–KSB. The the company’s securities by enabling information may be incorporated by registered under Section 12), including investors to make informed decisions on the acquisition and disposition of reference from the company’s definitive a more timely basis. As proposed, the proxy statement for the annual meeting derivative securities, and the exercise, categories of transactions to be reported at which directors are elected, where termination or settlement of derivative currently on Form 8–K would not similar disclosure also is required securities; replicate all the transactions that • because it is material to shareholders’ Each director’s and executive voting decisions.20 We do not propose officers and directors must report under officer’s adoption, modification or to revise those disclosure requirements Section 16(a), but only those most termination of a contract, instruction or in this rulemaking. related to the purpose of the newly written plan for the purchase or sale of However, advances in technology and proposed current disclosure. company equity securities intended to satisfy the affirmative defense the increased dependence on the ready Moreover, the Section 16(a) filings do availability of current corporate conditions of Exchange Act Rule 10b5– not report two categories of 26 information have reshaped the way our 1(c); and information—directors’ and executive • Each loan of money to a director or markets operate. Technological officers’ arrangements under Exchange executive officer made or guaranteed by developments that significantly reduce Act Rule 10b5–1 and their receipt of the company or an affiliate of the timeframes for the capture and analysis loans from, or guaranteed by, the company. of information necessitate a new company or an affiliate of the Current reports of information consideration of the timing of mandated company—that we believe also are of regarding changes in directors’ and disclosure to the markets. We believe it significant informational value and executive officers’ holdings of company would enable investors to make should be reported on a current basis.25 equity securities might in some cases investment and voting decisions on a Because this information, like reveal shifts in the alignment between more timely and better informed basis, information concerning directors’ and management’s and shareholders’ provide more timely information economic interests. Such reports, regarding management’s view of executive officers’ transactions, relates particularly with respect to derivative company performance or prospects, to both the market for company equity securities used by directors and protect investors, and promote fair securities and directors’ and executive executive officers for hedging purposes, dealing in company equity securities if officers’ relationship to the company, also could disclose in some cases companies were required to report we propose to require companies to transactions by directors and executive additional information related to these report this information on Form 8–K. officers that might be construed as subjects on a more current basis. To this severing the link between executive end, we propose to amend Form 8–K. Reports on Form 5 [17 CFR 249.105], which applies compensation and company equity Some of the information that a to most transactions between an officer or director securities performance. company would report with respect to and the company, are due within 45 days after the company’s fiscal year end, creating a delay of up Moreover, current reports of directors’ and executive officers’ to 410 days between a reportable transaction and information regarding directors’ and transactions in company equity filing. Exchange Act Rule 16a-3(f)(1) [17 CFR executive officers’ transactions in securities also is reportable by officers 240.16a-3(f)(1)]. company equity securities would 23 and directors under Section 16(a) of the The Commission has permitted voluntary provide public investors timely Exchange Act.21 However, Section 16(a) EDGAR filing of these reports since 1995. Securities Act Release No. 7231 (Oct. 5, 1995) [60 FR 53474]. disclosure of potentially useful requires disclosure that may be filed too information as to management’s views slowly for the public to obtain the In Securities Act Release No. 7803 (Feb. 25, 2000) [65 FR 11507], the Commission stated that it of the performance or prospects of the maximum benefit from the intends to engage in future rulemaking to make the 22 company. Many public investors take information, and the reports are not filing of Section 16(a) forms on EDGAR mandatory. 24 The relationship between management’s 26 For purposes of insider trading liability under 19 Items 10, 11, 12, and 13 of Form 10–K and transactions and company equity securities Section 10(b) of the Exchange Act [15 U.S.C. 78j(b)] Items 9, 10, 11, and 12 of Form 10–KSB. performance has been the subject of significant and Exchange Act Rule 10b–5 [17 CFR 240.10b–5], 20 Items 6, 7, and 8 of Schedule 14A [17 CFR study. See J. Lakonishok and I. Lee, ‘‘Are Insiders’ Rule 10b5–1 provides that ‘‘a purchase or sale of a 240.14a-101]. The proxy statement also includes Trades Informative?,’’ Review of Financial Studies, security of an issuer is ‘on the basis of ’ material additional executive compensation disclosure that Vol. 14, Issue 1 (Spring 2001). nonpublic information about that security or issuer addresses the relationship between executive 25 if the person making the purchase or sale was aware compensation and a company’s equity securities Item 404 of Regulations S–K and S–B requires disclosure of any director or executive officer’s of the material nonpublic information when the performance. This information is not deemed person made the purchase or sale.’’ Compliance indebtedness to the company or its subsidiaries at incorporated by reference into any filing under the with the affirmative defense conditions of Rule any time since the beginning of the company’s last Securities Act or the Exchange Act, except to the 10b5–1(c) allows a person to plan securities extent specifically incorporated by reference. fiscal year in an amount in excess of $60,000. This transactions in advance while not aware of material 21 15 U.S.C. 78p(a). disclosure, which is filed annually on Form 10–K nonpublic information, and later execute the 22 Section 16(a) establishes that reports on Form or Form 10–KSB and the proxy statement for the transactions as planned without Section 10(b) and 4 [17 CFR 249.104] are due within 10 days after the annual meeting at which directors are elected, does Rule 10b-5 liability, even if aware of material close of the month in which the reportable not address issues involving use of company equity nonpublic information at the time a planned transaction occurs, creating a delay of 10 to 40 days. securities as collateral. transaction occurs. VerDate 11 the position that timely disclosure of beneficially own more than five percent • Do investors need to know about these transactions is necessary for them of any class of the registrant’s voting more than ten percent beneficial to make informed investment securities30 in the registration statement owners’ transactions earlier than those decisions.27 on Form 10 or Form 10–SB,31 update it transactions are reportable under Similarly, current reports disclosing annually in the annual report on Form Section 16(a)? that a director or executive officer has 10–K or Form 10–KSB,32 and include it —Would companies reasonably be able entered into, modified or terminated a in the definitive proxy statement for the to implement procedures and systems Rule 10b5–1 contract, instruction or annual meeting at which directors are to report with respect to more than written plan for the purchase or sale of elected.33 Beneficial owners of more ten percent beneficial owners under company equity securities may provide than ten percent of a class of equity Item 10? investors with more extensive securities registered under Section 12 34 —What would be the impact on more disclosure of potentially useful are subject to Section 16 of the than ten percent beneficial owners of information as to management’s views Exchange Act. extending the Item 10 requirement of the performance and prospects of the However, these beneficial owners may with respect to them? company. Finally, current reports of not be subject to the same fiduciary • company (or company affiliate) loans Are there any other persons whose duties to the company as directors and transactions and other events should be and guarantees of third-party loans to executive officers, and do not receive directors and executive officers would expressly included in (or excluded compensation from the company. from) the proposal? inform investors of financial Further, the company’s relationship to arrangements not generally available to these beneficial owners, which in some 2. Reporting Deadlines shareholders that may result in the cases may even be hostile, does not As proposed, most Item 10 events receipt of de facto additional necessarily facilitate current reporting would be reportable early in the week compensation by the director or by the company. Accordingly, the following the event. However, events executive officer. proposal would not require a company that would be of heightened significance 1. Covered Directors and Executive to report transactions in company equity to investors would be reportable on an Officers securities (or other Item 10 events) by accelerated basis, and de minimis events major shareholders who are not also A company would be required to would be reportable on a deferred basis. directors or executive officers. report under Item 10 with respect to all Specifically: Questions regarding what persons’ • directors and executive officers. For An Item 10 Form 8-K would be due Item 10 events should be reported: purposes of the proposal, ‘‘executive within two business days following a • Is the Rule 3b–7 definition the officer’’ would be defined by Exchange transaction or loan with an aggregate appropriate definition of ‘‘executive Act Rule 3b–7.28 This is the same value of $100,000 or more with respect officer’’ for purposes of the proposal? definition that applies for purposes of to a director or executive officer, other management disclosure in Forms 10, —In practice, do companies generally than a grant or award pursuant to an 10–SB, 10–K, 10–KSB, and Schedule identify principal financial officers, employee benefit plan. 14A. principal accounting officers, and • Employee benefit plan grants and For purposes of Section 16, our rules controllers as Rule 3b–7 ‘‘executive awards, transactions and loans with an define ‘‘officer’’ similarly.29 However, officers’? aggregate value less than $100,000, and Section 16 ‘‘officers’’ also specifically —If not, should companies also be Rule 10b5–1 arrangements generally include principal financial officers and required specifically to report with would be reportable not later than the principal accounting officers (or respect to these officers under Item close of business on the second business controllers where there is no principal 10? day of the week following the week in accounting officer), and officers of the —Should Item 10 reporting apply with which the event occurred. company’s parent(s) or subsidiaries if respect to directors who are not also • The report of a transaction or loan they perform significant policy-making executive officers? with an aggregate value not exceeding functions for the issuer. —Are investors as interested in $10,000 could be deferred until the Unlike other company disclosure transactions by these directors? What aggregate cumulative value of obligations and insiders’ Section 16(a) about their Rule 10b5–1 arrangements unreported transactions and loans with reporting obligations, the proposed Item and loans made to them (or respect to the same director or executive 10 reports would apply only with guaranteed by) the company or its officer exceeds $10,000. respect to directors and executive affiliates? The date of a reportable event would officers, and not to principal security —Does reporting with respect to these be the date on which the parties enter holders. In contrast, a company must directors provide additional concerns into an agreement. For example, in the report share ownership by persons who for issuers? case of a sale of securities to the —Does Section 16 reporting by these company or a loan from the company, 27 See, e.g., J. Moreland, ‘‘Two Modest Proposals directors provide sufficiently timely the date would be the date of the for Fixing Insider Trading Rules,’’ TheStreet.Com information for issuers? agreement and not the date of (Feb. 11, 2002); T. Mulligan, ‘‘Calls for Faster, Fuller Disclosure by Insiders,’’ Los Angeles Times completion of the sale or making of the (Mar. 3, 2002); A. Sloan, ‘‘One Enron Lesson: Some 30 Beneficial owners of more than five percent of loan. In the case of a line of credit or Insider Trading Falls Outside the Timely-Reporting a class of equity securities registered under Section similar lending arrangement, both the Rule,’’ Washington Post (Mar. 5, 2002); and A. 12 are subject to the reporting requirements of Beard, ‘‘Insiders’’ Trades Spark Outsiders’ Interest,’’ Section 13(d) of the Exchange Act [15 U.S.C. date of entering into the arrangement Financial Times (Apr. 8, 2002). 78m(d)]. and the date of a loan under that 28 17 CFR 240.3b–7. 31 Item 403 of Regulations S–K and S–B, and Item arrangement would be reportable. In the 29 Exchange Rule 16a–1(f) [17 CFR 240.16a–1(f)]. 4 of Forms 10 and 10–SB. case of an open market securities 32 Further, a note to Rule 16a–1(f) establishes a Item 12 of Form 10–K and Item 11 of Form 10– transaction, the date would be the trade presumption that a person whom the company KSB. identifies as an ‘‘executive officer’’ pursuant to Item 33 Item 6 of Schedule 14A. date and not the settlement date. In the 401(b) of Regulation S–K is an ‘‘officer’’ for 34 As defined in Exchange Act Rule 16a–1(a)(1) case of a Rule 10b5–1 arrangement, the purposes of Section 16. [17 CFR 240.16a–1(a)(1)]. date would be the date on which the VerDate 11 arrangement is made, modified or provide reasonable assurances that Item determine what events should be terminated. 10 events are timely reported; reported within the accelerated The proposed deadlines are designed (2) At the time of the violation, the deadline? to balance the significance to investors company followed those procedures; —For example, should the accelerated of the reportable information and the and deadline always apply regardless of company’s reporting burden. The two (3) As promptly as reasonably dollar value if the reportable event is business day accelerated deadline is practicable, the company made a filing a transaction with the company or a 36 intended to provide investors with rapid to correct any violation. loan from (or guaranteed by) the disclosure of the most significant This provision is intended to provide company? events, while allowing the company protection against sanctions for —Should foreclosure on or forgiveness sufficient time to compile the required companies that experience isolated of a loan from (or guaranteed by) the information. The next week deadline is failures to comply notwithstanding company always be reportable within intended to provide investors with appropriate procedures. Repeated or two business days? systemic violations or those that timely disclosure, while facilitating the • Should aggregate dollar value otherwise are not isolated would suggest company’s ability to report on a single determine the reporting deadline for deficiencies in procedures or their Form 8–K multiple events in the same additional events? time frame with respect to more than application that would be inconsistent with availability of the provision. In —Should the deadline for reporting a one director or executive officer. The Rule 10b5–1 arrangement be deferred deadline would allow the addition, where the company makes the demonstration described above, the determined based on the aggregate company to defer reporting events that, proposed transaction price or by virtue of relatively low aggregate Commission nevertheless could proceed against a director or executive officer. aggregate market value of the value, would presumably be less securities subject to purchase or sale significant to investors. All transactions As with other Section 13(a) violations, a private right of action would not arise. under the arrangement, in the same reportable on the same day could be manner as proposed for transactions filed on a single Form 8–K under Item Questions regarding implementation and costs: and loans? 10. • —Similarly, should the deadline for The $100,000 and $10,000 thresholds Will companies subject to Item 10 be able to implement reasonable reporting grants and awards under would apply to the aggregate value of employee benefit plans be based on the reportable transaction or loan. These procedures to prepare and file Item 10 Forms 8–K under these proposed the aggregate value of the grant or dollar thresholds are intended to tailor award? the reporting requirements based upon deadlines? • To what extent will companies be • Should the close of business on the the size of the event and the presumed able to make use of existing procedures second business day of the week significance of the information to to compile and report directors’ and following the event be the deadline for investors. The thresholds would apply executive officers’ transaction more (or all) Item 10 reports? to employee benefit plan transactions information? —Are there employee benefit plan other than grants and awards, such as • What additional costs will option exercises, volitional intra-plan transactions other than grants and companies incur to compile information awards for which this deadline would transfers involving a company equity and convert it into electronic format for securities fund, and deferral of cash be appropriate? filing? —Should this deadline be shorter or compensation in phantom stock units. Questions regarding appropriateness For physically-settled derivative longer, such as the first or third ‘‘ of proposed reporting deadlines and rather than the second ‘‘ business day securities, the aggregate value would be dollar thresholds: computed by reference to the market • of the week following the event? Do the proposed deadlines and —Are there any events for which a value of the underlying securities on the thresholds appropriately balance longer period, such as five business date of the transaction. For cash-settled investors’ informational needs and the days after the event, would be an derivative securities, the aggregate value company’s reporting burden? appropriate reporting deadline? would be computed based on the • Is $100,000 with respect to • Is $10,000 an appropriate threshold transaction’s notional value.35 Where transactions by or loans to a single exercise or tax withholding rights or for permitting deferred reporting of director or executive officer an 38 other net settlement procedures are used smaller events? appropriate threshold for requiring —Would a different amount, such as in the exercise, conversion or other reporting within two business days? settlement of a derivative security, the $20,000 or $30,000, better quantify de —Would either a higher or lower dollar minimis events which might not be of aggregate value would be computed on threshold, such as $60,000 37 or a gross basis. significant interest to investors? $150,000, better quantify events of —Should this dollar threshold vary As a practical matter, a company sufficient significance to investors to would need to institute procedures and depending on whether the reportable warrant accelerated reporting? event is a transaction with or a loan systems to assure Item 10 compliance. —Should the proposed two business The general instruction would include a from (or guaranteed by) the company? days deadline be either shorter or —Should there be a maximum Commission finding that it is not in the longer (such as one or three business aggregation period for smaller events public interest to impose any sanction days)? beyond which reporting could no on a company, notwithstanding a • Are there criteria other than longer be deferred? If so, what would violation, that demonstrates that: aggregate dollar value that should (1) At the time of the violation, it had be an appropriate period? designed procedures and a system for 36 Proposed amendment to General Instruction 38 The proposed $10,000 threshold is similar to applying such procedures sufficient to B.1 to Form 8–K. the $10,000 threshold for deferred reporting of 37 Item 404(a) of Regulations S–K and S–B small acquisitions under Exchange Act Rule 16a– 35 Notional value generally refers to the gross generally requires disclosure of a company’s 6 [17 CFR 240.16a–6]. However, the proposed Item value of the securities or other assets from which transactions with management in which the amount 10 deferred reporting threshold would not be the cash-settlement value is calculated. involved exceeds $60,000. limited to acquisitions. VerDate 11 —Instead should reports of all Such procedures, including in some company, an additional report need not transactions less than $100,000 be cases requirements that directors and be made on Form 8–K.44 deferred until their aggregate executive officers give advance notice or Questions regarding ‘‘filed’’ status of cumulative value equals $100,000? receive advance approval of reports: —Are there any categories of events that transactions, would help companies • Should Item 10 Forms 8–K not be should be ineligible for deferred keep track of transactions that would be considered ‘‘filed’’ (and hence not reporting? reportable under Item 10. subject to Section 18 liability) unless the As a general matter, would the clarity Questions regarding covered company specifically states that the information is to be considered ‘‘filed’’ provided by establishing reporting companies: under the Exchange Act or incorporates deadlines based on aggregate value • Should companies required to outweigh the administrative burden of it by reference into a filing under the report with respect to a class of equity 45 tracking aggregate value? Securities Act or Exchange Act? securities solely under Section 15(d) • Alternatively, if an Item 10 Form 8– Questions regarding application of also be subject to Item 10 reporting? dollar thresholds to specific K is considered ‘‘filed’’ as proposed, transactions: —Is Item 10 information necessary for should a delinquency adversely affect • To prevent evasion, should timely, well-informed investment either the company’s eligibility to use transactions or loans that occur within decisions with respect to equity short-form Securities Act registration the same two business day period be securities of these issuers? statements or its current reporting status considered together for purposes of under Rule 144(c)? • Alternatively, should small • Are there circumstances in which computing the dollar threshold for 40 business issuers with a class of equity application of the Form 8–K instruction reporting under the earlier deadline? security registered under Section 12 be regarding previously reported —Should there be a longer (or shorter) exempted from Item 10 because information would undercut the aggregation period? compliance would impose excessive purpose of Item 10, which is to make • Where the exercise of an option is burdens? the reportable information readily followed by a disposition of the 4. Filed Status of Reports available to the public? Would the underlying securities, should the relatively short reporting deadlines aggregate value be computed by As proposed, Item 10 Forms 8–K applicable to Item 10 reports make it reference solely to the disposition, would be considered ‘‘filed’’ for less likely for Item 10 information to be rather than by adding the fair market purposes of liability under Section 18 of previously reported? value of the acquired securities to the 41 the Exchange Act. Consequently, Item B. Application to Transactions dollar amount of the disposition? 10 information would be incorporated Questions regarding proposed by reference in Securities Act The transactions subject to reporting Commission finding: registration statements on Forms S–2, under paragraph (a) of Item 10 would • Does the proposed finding S–3, S–8, and S–4 (where Form S–2 or include transactions in any class of appropriately address company liability S–3 level disclosure is used).42 company equity security (whether or for violations? However, we are proposing not registered under Section 12), • Should companies be required to amendments to the applicable including derivative securities with disclose, for example in the annual registration statement form instructions respect to company equity securities report on Form 10-K, any director’s or and Securities Act Rule 144 so that an (whether or not the derivative securities executive officer’s failure to comply Item 10 Form 8–K delinquency would were issued by the company). The with procedures that the company has not affect form eligibility or the company would report any transaction implemented to provide reasonable company’s current reporting status in which the director or executive 46 assurances that Item 10 events are under Rule 144(c).43 officer has a pecuniary interest, timely reported? including transactions with third parties As proposed, Item 10 Forms 8–K as well as transactions with the 3. Covered Companies would be subject to General Instruction company. As proposed, the company As proposed, only issuers with a class B.3 to Form 8–K. This instruction would not need to report trust of equity securities registered under provides that if substantially the same transactions that would not be Section 12 would be subject to Item 10. information required by Form 8–K has reportable by the director or executive These companies comprise a significant been previously reported by the officer under Section 16(a). 47 portion of U.S. equity markets. Moreover, these would be the same Regulations S–K and S–B [17 CFR 229.405 and 17 44 For this purpose, ‘‘previously reported’’ is CFR 228.405, respectively], and is required companies whose officers, directors, defined in Rule 12b–2 [17 CFR 240.12b–2] to mean disclosure in the annual report on Form 10–K or previously filed with, or reported in a statement and more than ten percent beneficial Form 10–KSB and the proxy statement for the under Section 12 of the Exchange Act, a report owners are required to report annual meeting at which directors are to be elected. under Section 13 or 15(d) of the Exchange Act, a transactions in company equity 40 Exchange Act Rule 12b–2 [17 CFR 240.12b–2] definitive proxy statement or information statement securities pursuant to Section 16(a). defines a ‘‘small business issuer’’ as a U.S. or under Section 14 of the Exchange Act, or a Canadian issuer, other than an investment registration statement under the Securities Act. Many of these companies help their company, that has revenues of less than $25 45 General Instruction B.2 to Form 8–K provides officers and directors fulfill their million, if the aggregate market value of its this treatment for current Item 9 Forms 8–K. These Section 16(a) reporting obligations, and outstanding voting and non-voting common equity forms report information that a company elects to accordingly already may have held by non-affiliates is not $25 million or more. disclose through Form 8–K pursuant to Regulation If the issuer is a majority-owned subsidiary, it is not FD [17 CFR 243.100–243.103]. procedures in place that would assist a small business issuer unless the parent 46 Instruction 2 to proposed Item 10 applies the 39 them in providing Item 10 disclosure. corporation also is a small business issuer. Exchange Act Rule 16a–1(a)(2)(i) [17 CFR 240.16a– 41 15 U.S.C. 78r. 1(a)(2)(i)] definition of ‘‘pecuniary interest,’’ which 39 For example, these companies are likely to 42 17 CFR 239.25. is ‘‘the opportunity, directly or indirectly, to profit have established procedures to comply with their 43 Proposed amended General Instruction I.C to or share in any profit derived from a transaction in obligation to disclose Section 16 reporting persons’ Form S–2, General Instruction I.A.3 to Form S–3, the subject securities. failure to timely file Section 16(a) reports. This General Instruction A.1 to Form S–8, and Securities 47 Instruction 2 to proposed Item 10 refers to reporting obligation is set forth in Item 405 of Act Rule 144(c). Exchange Act Rule 16a–8(b) [17 CFR 240.16a–8(b)], VerDate 11 Question regarding trust transactions: • Acquisitions or dispositions • Are there any other categories of • pursuant to domestic relations orders;51 transactions that should be excluded Should a company be required to • report Section 16(a) exempt trust Transactions as executor of an from Item 10 current reporting? estate or similar fiduciary during the 12 transactions unless the director or —Does a director’s or executive officer’s months following appointment;52 decision to dispose of equity executive officer is unaware of the • Transactions that change the form securities by gift reflect a view as to transactions because they are made of beneficial ownership without through a blind trust? the company’s prospects? changing the director’s or executive —Should gifts be exempted where the 1. Reportable and Exempt Transactions officer’s pecuniary interest in the equity director or executive officer is the securities;53 donee rather than the donor? A company would be required to • Routine acquisitions (e.g., through report any transaction by a director or payroll deduction) pursuant to broad- 2. Content and Format of Reports executive officer that is the economic based, tax-conditioned employee benefit With respect to an acquisition or equivalent of a sale. For example, we plans and related excess benefit plans;54 disposition of company equity • would expect the company to report as Transfers by will or the laws of securities, the company would be 55 a sale a director or executive officer’s descent and distribution; required to report: • Acquisitions or dispositions pledge of company equity securities • The name and title of the director pursuant to holding company pursuant to a loan from a third party or executive officer; formations and similar corporate • where the loan is non-recourse or there The date of the transaction; reclassifications and consolidations;56 • The title and number of securities is otherwise an expectation on the part and acquired or disposed of; of the director or executive officer that • Deposits or withdrawals of equity • The per share acquisition or the loan will be repaid by foreclosure or securities from voting trusts.57 disposition price, if any; other recourse to the securities, even if Questions regarding proposed exempt • The aggregate value of the there is no formal arrangement. transactions: transaction; • Reportable transactions would be Should transactions in any of the • The nature of the transaction ( e.g., substantially similar, but not identical, proposed exempt categories be subject open market sale or purchase, sale to or to those that the director or executive to Item 10 current reporting? purchase from the registrant, gift); and • officer is required to report under —Have we chosen the proper criteria for Any other material information Section 16(a).48 For example, gifts selecting exempt categories of regarding the transaction. As proposed, the information would would be reportable transactions. transactions? be reported in any narrative or tabular However, as proposed, transactions in —For example, because deposit or format that provides a clear, accurate the following categories would not be withdrawal of securities from a voting trust may affect voting control, should description of the transaction.58 Given reportable under Item 10 because they the company make current disclosure the rapid due date(s) that would apply, do not generally appear to reflect of these transactions? we do not propose to require the management’s views of the company’s company to reconcile and report a prospects or sever the link between 51 These are the transactions exempted from director’s or executive officer’s holdings executive compensation and company Section 16(a) reporting by Exchange Act Rule 16a– following a transaction. On a voluntary equity securities performance: 12 [17 CFR 240.16a–12]. basis, the company could include • 52 These are the transactions exempted from Receipt of stock dividends Section 16(a) reporting by Exchange Act Rule 16a– additional information concerning the (including stock splits) and pro rata 2(d) [17 CFR 240.16a–2(d)]. transaction. rights;49 53 These are the transactions exempted from Questions regarding content and Section 16(a) reporting by Exchange Act Rule 16a– format: • Acquisitions pursuant to regular 13 [17 CFR 240.16a–13]. • Should a specified tabular format be reinvestment of dividends or interest 54 These are the transactions exempted from required to facilitate comparisons and Section 16(b) short-swing profit recovery by through a broad-based reinvestment reference by investors? plan;50 Exchange Act Rule 16b–3(c) [17 CFR 240.16b–3(c)]. Exchange Act Rule 16a–3(f)(1)(i)(B) [17 CFR • Is it necessary to include holdings 240.16a–3(f)(1)(i)(B)] exempts these transactions information to make the proposed which specifies the circumstances where from Section 16(a) reporting. However, Instruction reports useful to investors? transactions in company securities held by a trust 3 to proposed Item 10 would require reporting of are reportable by an officer, director or more than volitional intra-plan transfers involving an issuer —If so, would its inclusion substantially ten percent beneficial owner who is the trustee, equity securities fund, or a cash distribution funded increase the cost of compliance? beneficiary, settlor or remainderman of the trust. by a volitional disposition of an issuer equity • Would any particular additional 48 The company’s Form 8–K report of a security, unless the transaction is made in information be necessary to make the transaction would not relieve an officer or director connection with the director’s or executive officer’s from the obligation to report that transaction under death, disability, retirement or termination of proposed reports useful to investors? Section 16(a) on Form 4 or Form 5, or to file a employment, or is required to be made available to —For example, should events be coded notice of proposed sale on Form 144, as applicable. plan participants pursuant to the Internal Revenue by type for ease of identification? As discussed below, the information regarding the Code. These transactions, which are ‘‘discretionary • transaction reportable on Form 8–K would not be transactions,’’ as defined in Exchange Act Rule If so, should the same codes used for identical to the information reported on Form 4 or 16b–3(b)(1) [17 CFR 240.16b–3(b)(1)], may reflect a purposes of Section 16(a) reporting Form 5. director’s or executive officer’s views as to the be used where applicable? 49 These are the transactions exempted from company’s prospects. Section 16(a) reporting by Exchange Act Rule 16a– 55 These transactions are some of the transactions —If the transaction is pursuant to a Rule 9 [17 CFR 240.16a–9]. These transactions, along exempted from Section 16(b) short-swing profit 10b5–1 arrangement, should this be with other transactions described below as recovery by Exchange Act Rule 16b–5 [17 CFR noted? exempted by rule from Section 16(a), also are 240.16b–5]. • If so, should the Rule 10b5–1 exempted from Section 16(b) short-swing profit 56 These are the transactions exempted from recovery by Exchange Act Rule 16a–10 [17 CFR Section 16(b) short-swing profit recovery by arrangement be identified? 240.16a–10]. Exchange Act Rule 16b–7 [17 CFR 240.16b–7]. 50 These are the transactions exempted from 57 These are the transactions exempted from 58 In Section V, below, we have provided sample Section 16(a) reporting by Exchange Act Rule 16a– Section 16(b) short-swing profit recovery by disclosure, which illustrates a tabular format for 11 [17 CFR 240.16a–11]. Exchange Act Rule 16b–8 [17 CFR 240.16b–8]. paragraph (a) transactions. VerDate 11 • Would identifying transactions in this of proposed Item 10 disclosure are For purposes of Item 10, entering into a manner enhance the proposed Form different and do not involve profit contract that involves a derivative 8-K disclosure of Rule 10b5–1 recapture. As proposed, transactions in security would be reportable as an plans? instruments such as preferred stock acquisition or disposition of a derivative • Would this identification enable convertible into common stock at a security, in the same manner as under investors to better analyze the floating exercise price 62 and Section 16(a). As proposed, Item 10 possible ‘‘market signal’’ value of performance-based units63 would be would require disclosure of option the reported transactions? reportable under Item 10. Reportable grants pursuant to employee benefit Questions regarding relationship to derivative securities also would include plans sponsored by the company, the Section 16(a) reports: security-based swap agreements 64 and, surrender of those options, and the • Assuming proposed Item 10 is when authorized for trading, security issuance of replacement grants. The adopted, would it be feasible and futures products.65 disclosure also is intended to capture desirable to permit officers and directors In addition to the information option repricings. to satisfy their Section 16(a) reporting described above for other equity Reports of exercises, conversions, obligations by attaching a Form 4 to the securities transactions, reports of terminations or settlements of derivative company’s Item 10 Form 8–K reporting acquisitions or dispositions of securities would include: the same transaction? derivative securities would include: • The date of the exercise, —Should we adopt a pilot program in • The per share exercise or conversion, termination or settlement; which companies could voluntarily conversion price (or other price, such as • The per share price used for enroll to use this procedure? a notional price, used in the terms of the exercise, conversion, termination or • Conversely, should the company be derivative security); settlement; able to satisfy its Item 10 Form 8–K • The date(s) on which each • The title and number of underlying reporting obligation by adding Form 8– derivative security becomes exercisable securities (or cash equivalent) acquired K header information to an officer’s or (or subject to termination), and its date or disposed of; director’s Form 4? of expiration (or final termination); • The nature of the transaction (e.g., • • Should Form 4 include disclosure The title and number of underlying exercise of option, settlement of swap of when the transaction was reported on securities (or cash equivalent) that agreement), indicating whether the Form 8–K? would be acquired or disposed of upon transaction involves a collar or other • Transactions between officers or exercise, conversion, termination or hedge, and if so describing all material directors and the company that are settlement; • terms; and exempted from Section 16(b) short- The nature of the transaction (e.g., • Any other material information swing profit recovery currently may be option grant, sale or purchase of call regarding the transaction. option, sale or purchase of put option, reported within 45 days after the As proposed, Item 10 would require 59 entering into a swap or futures contract), company’s fiscal year end on Form 5. disclosure of the expiration of a indicating whether the transaction Should we instead require officers and derivative security. involves a collar or other hedge, and if directors to report some or all of these Questions regarding derivative transactions earlier on Form 4? Are so describing all material terms;66 and • Any other material information securities reporting: there any other transactions currently • Is the proposed definition of regarding the transaction, including reportable on Form 5 that should ‘‘derivative security’’ appropriate for contingencies applicable to exercise. instead be reported on Form 4? Item 10 purposes? 3. Derivative Securities 62 See Morgan Capital, L.L.C. v. Medtox Scientific, —If not, what different definition For purposes of Item 10, ‘‘derivative Inc., 258 F.3d 763 (8th Cir. 2001), cert. denied, 122 should be used? S.Ct. 1065, 151 L.Ed. 2d 969, 70 U.S.L.W. 3374 • Should instruments such as securities’’ would be defined the same (Feb. 19, 2002) (No. 01–739). as in Rule 16a–1(c), but without regard 63 These instruments are not considered preferred stock convertible into to the exclusion for rights with an ‘‘derivative securities’’ under Exchange Act Rule common stock at a floating exercise exercise or conversion privilege at a 16a–1(c) because their exercisability is subject to price and performance-based units be price that is not fixed.60 Although conditions (other than the passage of time and reportable under Item 10, as proposed? continued employment) that are not tied to the 61 • Exchange Act Rule 16a–1(c)(6) market price of a company equity security. Staff Should any other transactions that excludes these instruments from the interpretive letter to Certilman Balin Adler & do not involve derivative securities application of Section 16 because the Hyman (Apr. 20, 1992). reportable under Section 16(a), such as opportunity to profit from them is not 64 This term, which is used in Sections 16(a) and tax withholding rights or stock-for-stock (b), is defined in Section 206B of the Gramm-Leach- exercise withholding rights,67 also be fixed, as described above the purposes Bliley Act. 65 reportable under Item 10? Section 16(f) applies the provisions of Section • 59 Rules 16b–3(d) and 16b–3(e) exempt grants, 16 to ownership of and transactions in these Is information concerning employee awards and other acquisitions from the issuer, and products. Section 3(a)(56) of the Exchange Act [15 benefit plan option grants of sufficient dispositions to the issuer, respectively. Rule 16a– U.S.C. 78c(a)(56)] defines ‘‘security futures value to investors to warrant Item 10 3(f)(1)(i) allows these and most other transactions product’’ as ‘‘a security future or any put, call, disclosure? exempt from Section 16(b) to be reported on Form straddle, option, or privilege on any security • 5. future.’’ Section 3(a)(55)(A) of the Exchange Act [15 Would the proposed categories of 60 Proposed Instruction 1 to Item 10. U.S.C. 78c(a)(55)(A)] defines a ‘‘security future’’ information about derivative securities 61 ‘‘Derivative securities’’ are defined in Exchange generally as a contract of sale for future delivery of transactions satisfy investors’ needs? Act Rule 16a–1(c) [17 CFR 240.16a–1(c)] as ‘‘any a single security or of a narrow-based security option, warrant, convertible security, stock index. —What, if any, additional information appreciation right, or similar right with an exercise 66 In Exchange Act Release No. 34514 (Aug. 10, should be required? or conversion privilege at a price related to an 1994) [59 FR 42449], the Commission described the • For example, should Item 10 require equity security, or similar securities with a value derivative securities analysis for reporting equity derived from the value of an equity security,’’ with swaps and instruments with similar characteristics reporting of other material certain exceptions. Subparagraph (6) of this rule under Section 16(a). In Exchange Act Release No. excludes from that definition ‘‘rights with an 37260 (May 31, 1996) [61 FR 30376], the 67 Exchange Act Rule 16a–1(c)(3) [17 CFR exercise or conversion privilege at a price that is not Commission further addressed this analysis and 240.16a–1(c)(3)] excludes these rights from fixed.’’ adopted Code K for reporting these transactions. ‘‘derivative securities.’’ VerDate 11 modifications to derivative obligations to report transactions • Is disclosure of any additional securities? thereunder pursuant to Item 10 information about these arrangements —Alternatively, are any of the proposed paragraph (a).69 necessary for these proposed reports to categories not necessary? When the director or executive officer be useful to investors? • Would disclosure of any particular • For example, is information enters into the contract, instruction or terms invite market manipulation? concerning expirations of derivative written plan, the company would • Is there a general expectation of securities of sufficient value to report: • The name and title of the director privacy with respect to the terms of Rule investors to warrant Item 10 or executive officer; 10b5–1 arrangements? disclosure? Does the answer differ • The date on which the director or depending upon the type of —Is there a specific expectation of executive officer entered into the derivative security? privacy with respect to the identity of contract, instruction or written plan; the counterparty or agent? C. Application To Exchange Act Rule and —Is disclosure of that identity useful 10b5–1 Arrangements • A description of the contract, where the Rule 10b5–1 plan involves instruction or written plan, including its Under paragraph (b) of Item 10, a the use of more than one counterparty duration, the aggregate number of company would be required to report or agent? securities to be purchased or sold, and that a director or executive officer has the name of the counterparty or agent. D. Application to Company Loans entered into a contract, instruction or Under paragraph (c) of Item 10, a written plan for the purchase or sale of A company would be able to use the company would be required to report company equity securities intended to form to disclose voluntarily additional any loan of money to, or lending satisfy the affirmative defense information about the Rule 10b5–1 arrangement with, a director or conditions of Exchange Act Rule 10b5– arrangement. executive officer by the company or an 1(c). This disclosure, like paragraph (a) When the director or executive officer affiliate of the company. The company disclosure, would apply based on the later terminates or modifies a contract, also would need to report if it, or its director’s or executive officers’ instruction or written plan, the affiliate, entered into a guarantee or pecuniary interest in the securities company would report: • similar arrangement in favor of a third subject to the contract, instruction or The date of the termination or party making such a loan to, or lending written plan.68 modification; and • arrangement with, a director or The conditions of Rule 10b5–1(c) do A description of the modification, including any modification to the executive officer. not require the person who purchases or These financial arrangements involve sells to make a specific filing in order duration, the aggregate number of securities to be purchased or sold, the the use of company assets for to establish availability of the arrangements that are not available to affirmative defense. Proposed Item 10 interval at which securities are to be purchased or sold, the number of shareholders generally. Further, would not change this; the availability forgiveness of a loan (or the company’s of the Rule 10b5–1(c) defense would not securities to be purchased or sold in each interval, the price at which payment on its guarantee) effectively be conditioned on a company’s results in the company’s payment to the reporting the contract, instruction or securities are to be purchased or sold, and the identity of the counterparty or director or executive officer of written plan on a Form 8–K. The additional compensation. purpose of the Form 8–K would be to agent. A director’s or executive officer’s When the company makes such a disclose potential transactions under the loan, or enters into a lending arrangement, rather than to establish the termination or modification of a Rule 10b5–1 arrangement may indicate a arrangement or a guarantee or similar defense. arrangement, the company would be If a transaction is executed at the time change regarding the company’s prospects, and thus may be valuable required to report: the director or executive officer • The name and title of the director provides a Rule 10b5–1(c) instruction, information to investors. Although we have not proposed to require reports or executive officer; such as a broker-dealer’s immediate • that a director or executive officer has The date of each such agreement (or execution of a limit order, the company guarantee or similar arrangement) or would report the transaction under entered into a Rule 10b5–1 arrangement to disclose the prices and intervals at loan thereunder; paragraph (a), noting the director’s or • The dollar amount and other executive officer’s use of an instruction which transactions would occur, or the number of securities to be purchased or material terms of the agreement or loan, intended to satisfy the rule’s affirmative and, if applicable, guarantee or similar defense conditions, and would not need sold per interval, we believe that modifications to these terms should be arrangement, including interest rate, to report the instruction separately terms of repayment, and any provisions under paragraph (b). In other reportable. We would require such modifications to be reported in general with respect to forgiveness; circumstances, the company’s report • The number and class of any under paragraph (b) of the contract, terms, such as an increase in the applicable limit order price, or a securities pledged as collateral; and instruction or written plan would not • The material terms of any pledge, decrease in the number of shares to be relieve the company from subsequent including whether it is made with or sold periodically under the without recourse. arrangement, without requiring 68 For example, a Rule 10b5–1 plan for the sale When forgiveness, foreclosure or the of securities held by a member of an executive disclosure of the specific price, number company’s payment on its guarantee officer’s immediate family, as defined in Exchange of securities, or duration of interval. occurs, the company would be required Act Rule 16a–1(e) [17 CFR 240.16a–1(e)], sharing Questions regarding disclosure of the same household as the executive officer would to report: be reportable. However, Instruction 3 to proposed Rule 10b5–1 arrangements: • The name and title of the director Item 10 would not require disclosure of a director’s or executive officer; and or executive officer’s enrollment in a broad-based 69 The director’s or executive officer’s obligations • employee benefit plan for the acquisition of to report these subsequent transactions under The date on which the forgiveness, registrant equity securities through payroll Section 16(a) and to file a Form 144, where payment or foreclosure occurred, and deduction. applicable, would not be affected. the dollar amount of forgiveness or VerDate 11 payment and the number and class of effective date, derivative securities • Implementation costs to companies; any securities foreclosed upon. transactions would be reportable not • Appropriateness of reporting Questions regarding disclosure of later than the close of business on the deadlines and dollar thresholds; company loans and guarantees: second business day of the week • Proposed Commission finding • Should this disclosure be required following the week in which the regarding company liability for only if the company’s equity securities transaction occurred, without regard to violations; are pledged or pledged without aggregate value. • Filed status of reports and effect on recourse? Rule 10b5–1 arrangements and loans Rule 144 and short-form Securities Act • Should loans of less than $100,000 entered into before the effective date registration; be excluded from Item 10? remaining in effect on the effective date • • Reportable and exempt Should disclosure also apply with would be of equal significance to transactions; respect to any loan to members of the investors as those entered into later. • Content and format of reports; immediate family of a director or Accordingly, we would expect to • Proposed Item 10’s relationship to executive officer, to any corporation or require companies to report them under Section 16(a) reports; organization in which a director or paragraphs (b) and (c), respectively, on • Accelerated Section 16(a) reporting executive owner beneficially owns ten (or within a short period after) the of officers’ and directors’ transactions percent or more of any class of equity effective date. with the company; security, or to any trust or other estate Questions regarding transition: • • Derivative securities disclosure; in which the director or executive Would the phased-in transition • officer has a substantial beneficial schedule described above for derivative Disclosure of Rule 10b5–1 interest or serves as trustee or in a securities transactions be appropriate arrangements; and • similar capacity? 70 for these transactions or any other Disclosure of company loans and • Is the scope of Item 10 as proposed, category of transaction? guarantees. including loans (and guarantees or • Were pre-existing Rule 10b5–1 In addition, we request your comment similar arrangements) by the company arrangements entered into with privacy on the following subjects: and its affiliates, too broad? If so, in expectations that would warrant Questions regarding benefit and what manner? transition treatment different from that practicability: • If Item 10 is adopted as proposed, proposed above? • Will the proposal provide requiring rapid disclosure of these loans —If so, how should these arrangements meaningful, timely information to and guarantees, should the Commission be treated for transition purposes? investors? consider rescinding any portion of other • As drafted, is the proposed disclosure requirements regarding IV. General Request for Comment amendment easy to understand and management indebtedness? We invite any interested person practical to implement? wishing to submit written comments on Questions regarding website access: E. Anticipated Transition this proposed amendment to Form 8–K, • Should the Commission encourage Assuming proposed Item 10 is the related amendments to Securities companies to post on their web sites the adopted, we will need to provide for a Act Rule 144 and Securities Act Forms information reportable on an Item 10 transition. We expect that the proposal S–2, S–3 and S–8, and any other matters Form 8–K? 71 would become effective 60 days that might have an impact on the —If so, in what manner? following Federal Register publication proposed amendments, to do so. We We will consider all comments of the final rule, and that transactions specifically request comments from responsive to this inquiry in complying occurring on and after that date would investors, companies that would be with our responsibilities under Section be reportable under paragraph (a). required to file Item 10 information, 23(a) of the Exchange Act.72 However, because companies may directors and executive officers, broker- need to establish procedures to capture dealers, portfolio managers, and other V. Sample Item 10 Disclosure and report information about derivative fiduciaries. As an aid to explaining this proposal, securities transactions on an accelerated As described in greater detail in we have prepared the following sample basis, we would expect to delay for an Section III above, we request comment disclosure: additional 60 days compliance with the regarding: obligation to report these transactions • What persons’ Item 10 events Item 10. Transactions by Directors and within two business days if the should be reportable; Executive Officers transaction’s aggregate value is $100,000 • What companies should be required (a)(1) Acquisitions/Dispositions of Equity or more. For the first 60 days after the to report; Securities Per share acqui- Name and title of director/ Date of trans- Title and number of securi- sition/disposition Aggregate value Description of nature of executive officer action ties involved in transaction price of transaction transaction John Jones/CEO ...... 2/19/02 25,000 shares common $14.10 $352,500 Sold shares in open mar- stock. ket transaction. Jane Smith/Director ...... 2/20/02 4,000 shares Series A pre- 30.00 120,000 Purchased shares in open ferred stock. market transaction. 70 Item 404(c) of Regulation S–K, which requires 71 Today we also issue a companion release, Forms 8–K filed by some, but not all, companies disclosure of any director’s or executive officer’s Securities Exchange Act Release No. 45741 (Apr. subject to Item 10 disclosure. indebtedness to the company or its subsidiaries at 12, 2002), that includes, among other things, a 72 15 U.S.C. 78w(a). any time since the beginning of the company’s last proposal regarding website access to Forms 10–K, fiscal year in an amount in excess of $60,000, also 10–Q and 8–K filed by certain companies. This requires disclosure of these loans. proposal would address web site access to Item 10 VerDate 11 (a)(2) Acquisitions/Dispositions of Derivative Securities Number of de- Name and title Date of trans- rivative securi- Per share ex- Price (if any) Exercisability/expira- Title and num- Description of of director/ex- action ties involved in ercise/conver- of derivative tion dates of deriva- ber of under- nature of trans- ecutive officer transaction sion price security tive security lying securities action Norman 2/19/02 (1) 14.00 (1) Exercisable com- 10,000 shares Agreement to Young/CAO. mencing 2/19/02; of common sell securi- expiring 2/19/03. stock. ties—hedg- ing trans- actions.(1) Theresa White/ 2/20/02 2,500 14.25 0 (2) ...... 2,500 shares of Received em- Vice Presi- common ployee stock dent. stock. option grant. 1 On February 19, 2002, Norman Young, the Chief Accounting Officer of the registrant, entered into a ‘‘swap’’ agreement with XYZ Brokerage Firm (‘‘XYZ’’) pursuant to which, on February 19, 2003, XYZ will be required to pay to Mr. Young an amount equal to the current market value of 10,000 shares of registrant’s common stock, or $140,000, and Mr. Young will be required to pay XYZ an amount equal to the then-current mar- ket value of 10,000 shares of the registrant’s common stock. In addition, Mr. Young has agreed to pay XYZ, as a fee, an amount equal to 1⁄4 of one percent of the current market value of the 10,000 shares of registrant’s common stock subject to the agreement and that, to the extent that the registrant declares and pays any dividend on its common stock during the term of the agreement, any such amounts will be paid to XYZ. XYZ has agreed to pay to Mr. Young an amount equal to the ‘‘prime’’ interest rate on $140,000 during the term of the agreement. 2 Employee stock option is exercisable in four equal annual installments, beginning on the first anniversary of the date of grant. The option will expire on February 19, 2012. (a)(3) Exercises/Conversions of Derivative Securities Number of deriv- Name and title of director/ Date of trans- ative securities Per share exer- Title and number of under- Description of nature of executive officer action involved in trans- cise/conversion lying securities transaction action price John Jones/CEO ...... 2/19/02 5,000 $4.50 5,000 shares of common Exercised employee stock stock. option. (b)(1) Rule 10b5–1 Plans be non-recourse. Under the provisions of the and filing a current report on Form 8– On February 20, 2002, Tom Johnson, the note, the registrant’s board of directors has K is a collection of information. Chief Financial Officer of the registrant, the discretion to forgive any repayment of entered into a plan with ABC Brokerage principal and interest if the board deems A. Summary of Proposed Amendment Firm, pursuant to which ABC will undertake such action to be in the best interests of the The proposed amendment would add to sell 25,000 shares of the common stock of registrant. The 10,000 shares of the a new item, Item 10, to Form 8–K. Item the registrant currently owned by Johnson at registrant’s common stock to be acquired 10 would require companies with a with the loan proceeds will secure repayment specified intervals through the end of 2002. class of equity securities registered On February 22, 2002, Donald Cummings, of the loan. These shares will be held in the registrant’s Vice-President for sales, escrow for the benefit of the registrant under Section 12 of the Exchange Act to modified a previously reported sales plan pending repayment or substitution of disclose certain information about with XYZ Brokerage Firm to decrease the additional or different collateral in form and directors’ and executive officers’ number of shares of registrant common stock amount satisfactory to the registrant. transactions in company equity subject to sale on a monthly basis pursuant securities (including derivative VI. Paperwork Reduction Act to the plan, and to decrease the limit order securities transactions and transactions price at which the shares may be sold under The proposed amendment to Form 8– with the company), directors’ and the plan. These modifications will reduce to K contains ‘‘collection of information’’ executive officers’ arrangements for the 18,000 the aggregate number of shares that requirements within the meaning of the purchase or sale of company equity may be sold by Mr. Cummings pursuant to 73 the plan. Paperwork Reduction Act of 1995 securities intended to satisfy the On February 22, 2002, Patricia Brown, the (‘‘PRA’’). We are submitting the affirmative defense conditions of registrant’s vice-president for administration, proposed amendment to the Office of Exchange Act Rule 10b5–1, and loans of terminated her previously reported sales plan Management and Budget (‘‘OMB’’) for money to directors and executive with LMN Brokerage Firm. review in accordance with the PRA.74 officers made or guaranteed by the (c) Loans The title for the collection of company or its affiliates. Generally, current reports of On February 19, 2002, the registrant agreed information is ‘‘Form 8–K.’’ An agency to loan Sandra Green, a member of the may not conduct or sponsor, and a transactions and loans would be due registrant’s board of directors, $50,000 for the person is not required to respond to, an within two business days if the event purpose of purchasing 10,000 shares of the information collection unless it displays has an aggregate value of $100,000 or registrant’s common stock through the a currently valid OMB control number. more. Reports of transactions and loans exercise of a stock option previously granted Form 8–K (OMB Control No. 3235– with a smaller aggregate value, grants to Ms. Green on May 1, 1999. The loan, 0060) was adopted pursuant to Sections and awards pursuant to employee which is immediately available, will bear 13(a), 15(d), and 23 of the Exchange Act benefit plans, and Rule 10b5–1 interest at the rate of four percent per annum arrangements would be due by the close and will be evidenced by a written and prescribes information, such as promissory note containing the following material events or corporate changes of business on the second business day terms. Interest will accrue during the term of that a company must disclose. Preparing of the week following the week in the loan, which is five years. Principal and which the event occurred. accrued interest will be due and payable at 73 44 U.S.C. 3501 et seq. We are proposing this amendment to the expiration of the loan term. The loan will 74 44 U.S.C. 3507(d) and 5 CFR 1320.11. alert investors to shifts in the alignment VerDate 11 between management’s and Based on a burden hour estimate of accuracy of our estimate of the burden shareholders’ economic interests. The three hours,77 we estimate that each of the proposed collection of proposed amendment, particularly with respondent will incur 63 burden information, (c) determine whether respect to derivative securities used for hours 78 to prepare and file the required there are ways to enhance the quality, hedging purposes, also would disclose disclosures and that, in the aggregate, all utility and clarity of the information to transactions by directors and executive respondents will incur 636,300 burden be collected, and (d) evaluate whether officers that in effect sever the link hours 79 to prepare and file the required there are ways to minimize the burden between executive compensation and disclosures. of the collection of information on those company equity securities performance. We anticipate that respondents will who respond, including through the use Finally, we believe that the proposed retain outside counsel to assist in the of automated collection techniques or amendment would provide investors preparation and filing of the required other forms of information technology.81 with timely disclosure of potentially disclosures.80 Of the total burden Any member of the public may direct useful information as to management’s resulting from the proposed to us any comments concerning the views of the performance and prospects amendments, seventy-five percent is accuracy of these burden estimates and of the company, thereby enabling reflected as burden hours and the any suggestions for reducing the investors to make better informed remainder is reflected in the total cost burdens. Commenters may wish to investment decisions. The collection of of complying with the information consider whether the proposed information will be mandatory for all collection requirements. We estimate collection of information with respect to companies with a class of equity that the total dollar cost of complying directors’ and executive officers’ securities registered under Section 12 of with Item 10 Form 8–K, including transactions could reduce collection of the Exchange Act. There will be no outside counsel costs, will be information burdens with respect to mandatory retention period for the $70,756,500, an increase of $47,722,500 reporting those transactions under information collected. The collection of from the current annual burden of Section 16(a) of the Exchange Act. information will not be kept $23,034,000 for Form 8–K. Persons who desire to submit comments confidential. C. Request for Comment on the collection of information requirements should direct their B. Reporting and Cost Burden Estimates We request comment in order to (a) comments to the OMB, Attention: Desk evaluate whether the proposed The reporting and cost burden Officer for the Securities and Exchange collection of information is necessary estimates for the proposed collection of Commission, Office of Information and for the proper performance of the information are based on the following Regulatory Affairs, Washington, DC functions of the Commission, including assumptions. The likely respondents 20503, and send a copy of the comments that will be subject to the proposed whether the information will have practical utility, (b) evaluate the to Jonathan G. Katz, Secretary, collection of information include Securities and Exchange Commission, entities with a class of equity securities of which would be multiple transactions to be 450 Fifth Street NW, Washington, DC registered under Section 12 of the 20549–0609, with reference to File No. Exchange Act. We estimate that there disclosed on a single Form 8–K).) Second, approximately 7,600 transactions by executive S7–09–02. Requests for materials are approximately 10,100 entities that fit officers and directors involving Exchange Act Rule 75 submitted to the OMB by us with regard this description. We estimate that, as 10b5–1 arrangements would be subject to disclosure to this collection of information should a result of the proposed amendment, under Item 10 of Form 8–K. (This estimate is based upon a sampling of press releases for 23 registrants, be in writing, refer to File No. S7–09– each respondent will make of whom approximately 50% disclosed Exchange 76 02 and be submitted to the Securities approximately 21 disclosures per year. Act Rule 10b5–1 arrangements covering 39 officers and Exchange Commission, Records and directors. These figures were then projected on Management, Office of Filings and 75 This estimate is based on the total number of the total number of companies with a class of companies that filed proxy (9,892) or information securities registered under Section 12 of the Information Services, 450 Fifth Street (253) statements during the 2000 fiscal year, which Exchange Act—10,100—to produce 5,050 NW, Washington, DC 20549. Because are required of all issuers registered under Section companies with an average of three disclosures the OMB is required to make a decision 12 of the Exchange Act. each year. The resulting total was reduced by 50% to reflect that many of these disclosures would be concerning the collections of 76 This estimate is based on (a) a review of the reported on the same Form 8–K.) Finally, number of reports filed by officers and directors information between 30 and 60 days approximately 7,900 company loans to executive under Section 16(a) of the Exchange Act during the after publication, your comments are officers and directors would be subject to disclosure period February—December 2000 (projected over a under Item 10 of Form 8–K. (This estimate is based best assured of having their full effect if 12-month period), (b) consultations with several upon a sampling of 50 proxy statements, of which the OMB receives them within 30 days law firms who advise registrants on compliance 26% reflected corporate loans covering 39 separate with Exchange Act Rule 10b5–1, and (c) a review of publication. transactions with executive officers and directors. of related-party transactions disclosed in proxy and These figures were then projected on the total VII. Costs and Benefits information statements filed during the 2001 fiscal number of companies with a class of securities year. This review leads to the following estimates. registered under Section 12 of the Exchange Act A. Background First, approximately 200,000 transactions in —10,100—to produce 2,626 companies with an company equity securities by executive officers and average of three loans each.) Distributed across the The current system of federal directors would be subject to disclosure under Item number of companies with a class of equity securities regulation is based on full 10 of Form 8–K. (This estimate is based upon securities registered under Section 12 of the assumptions that (i) the 69,900 transactions in disclosure; an approach that provides a Exchange Act, this results in an average of 21 excess of $100,000 would each require a separate cost-effective means for markets to disclosures per company (215,500/10,100). Form 8–K, (ii) the 62,550 transactions with a value allocate capital. In order to function 77 This estimate is based on consultations with less than $10,000 would be reported on a deferred effectively, however, there must be full, basis, with 20% of these transactions included on several law firms and other persons who regularly Forms 8–K filed to disclose other transactions and complete Forms 8–K and/or Forms 4 and 5. clear and timely disclosure to support 78 × the remaining 80% reported in groups of three, and (21 disclosures three hours). the market’s allocation decisions. (iii) the remaining 186,000 transactions would 79 (10,100 companies × 63 hours). Investors should have access to generate 113,250 Forms 8–K after taking into 80 We have used an estimated hourly rate of important corporate information when it account that generally option grants are made on $300.00 to determine the estimated cost to the same date, option exercise and sale activity respondents of the disclosure prepared by outside would be of greatest benefit to them. tends to occur during corporate trading periods, and counsel. We arrived at this hourly rate estimate option exercises and sales by individual officers after consulting with several private law firms. 81 Comments are requested pursuant to 44 U.S.C. and directors tend to occur on successive days (all (10,100 × 63 hours × 25% × $300.00 = $47,722,500). 3506(c)(2)(B). VerDate 11 Under current regulations, decisions on a more timely and better- market transparency, encouraging information about the relationship informed basis, protect investors, and continued widespread investor between executive compensation and promote fair dealing in company equity participation in our markets, which will company securities performance, the securities. Current information enhance market efficiency and liquidity. extent to which management’s regarding changes in directors’ and These benefits are difficult to quantify, economic interests are aligned with executive officers’ holdings of company but are viewed by many investors and those of shareholders through equity securities would reveal shifts in investor groups as significant. ownership of company equity securities, the alignment between management’s and management’s transactions with and shareholders’ economic interests. C. Costs and relationships to the company Such current information, particularly beyond the scope of employment that with respect to derivative securities The proposed amendment would could affect management’s performance used for hedging purposes, would impose additional costs on companies of its fiduciary duties must be updated disclose transactions by directors and with a class of equity securities annually in the company’s annual executive officers that in effect sever the registered under Section 12 of the report on Form 10–K or Form 10–KSB. link between executive compensation Exchange Act. Those companies would In addition, information about directors’ and company equity securities be required to file additional current and officers’ transactions in company performance. reports on Form 8–K to disclose equity securities is reportable by the Making available current information information each time a director or directors and officers under Section regarding directors’ and executive executive officer engaged in a 16(a) of the Exchange Act within 10 officers’ transactions in company equity transaction in company equity securities days after the close of the month in securities also would provide public or similar disclosable events. A which the reportable transaction occurs investors timely disclosure of company would be required to compile or, in some instances, within 45 days potentially useful information as to the relevant information and prepare after a company’s fiscal year end. management’s views of the performance and file the required Form 8–K. Technological developments that and prospects of the company. Many have significantly reduced timeframes public investors believe that such The proposed amendment also may for the capture and analysis of current disclosure is necessary for them lead to increased costs for companies information necessitate a new to make informed investment resulting from new or enhanced systems consideration of the timing of mandated decisions. 82 and procedures for disclosure practices. disclosure to the markets. The proposed Similarly, current disclosure that a Companies that do not currently assist amendment would add a new item, Item director or executive officer has entered their officers and directors to comply 10, to Form 8–K. Item 10 would require into, modified or terminated a Rule with Section 16(a) of the Exchange Act companies with a class of equity 10b5–1 contract, instruction or written may need to develop practices and securities registered under Section 12 of plan for the purchase or sale of procedures for compiling information the Exchange Act to disclose certain company equity securities would about corporate securities transactions information about directors’ and provide public investors with more by their directors and executive officers. executive officer’s transactions in complete disclosure of useful While we believe that many companies company equity securities (including information as to the performance and already have internal procedures for derivative securities transactions and prospects of the company. Finally, identifying and reporting these transactions with the company), current disclosure of loans (and loan transactions, some companies would guarantees) by the company or its directors’ and executive officers’ need to institute appropriate affiliates to directors and executive arrangements for the purchase or sale of procedures. These costs are difficult to company equity securities intended to officers would inform investors of quantify. We do not have data to satisfy the affirmative defense financial arrangements not generally quantify the cost of implementing, or conditions of Exchange Act Rule 10b5– available to shareholders that may result 1, and loans of money to directors and in the receipt of de facto additional enhancing and strengthening existing, executive officers made or guaranteed compensation by the director or internal monitoring procedures, and we by a company or its affiliate. executive officer. seek your comments and supporting Generally, current reports of Currently, it is difficult for investors data on these costs. transactions and loans would be due to ascertain whether a director or The required disclosure will provide within two business days if the event executive officer has engaged in a investors both with new information has an aggregate value of $100,000 or transaction involving company equity and with an alternative, accelerated, and more. Reports of transactions and loans securities until 10 days after the end of more readily accessible source for with a smaller aggregate value, grants the month in which the transaction currently available information. Because and awards pursuant to employee occurred or, in some instances, until 45 the size and scope of compliance is benefit plans, and Rule 10b5–1 days after the end of the fiscal year in likely to vary among companies, it is arrangements would be due by the close which the transaction occurred. Further, difficult to provide an accurate cost currently there are no disclosure of business on the second business day estimate with which all parties will requirements with respect to Rule 10b5– of the week following the week in agree. We believe that a company’s 1 arrangements and loan guarantees, which the event occurred. internal professional staff will expend and only limited disclosure concerning approximately 75% of the burden hours B. Benefits company loans to directors and Requiring companies to file current executive officers. Current disclosure of associated with compliance and that the reports disclosing information about information about these events would remaining 25% will be expended by directors’ and executive officers’ enhance investor confidence in the outside counsel. Assuming a cost of transactions, Rule 10b5–1 arrangements, markets. Thus, we believe that the $85.00 per hour for in-house and loans (or loan guarantees) by the proposed amendment will increase professional staff and $300.00 per hour company or its affiliates should enable for outside counsel, we believe that the investors to make investment and voting 82 See n. 27, above. total cost will be approximately $416.00 VerDate 11 per filing.83 For purposes of the PRA we compensation and company securities 8–K by all companies with a class of estimated that there will be performance and the relationship equity securities registered under approximately 215,255 Item 10 Form 8– between management and the company. Section 12 of the Exchange Act, K reports filed each year.84 Thus, based These concerns may be especially acute including ‘‘small businesses,’’ when any on these assumptions, the aggregate cost for investors in small entities, where of their directors or executive officers of the proposed amendments will be this information may be difficult to engage in a transaction involving approximately $89,546,000 each year. obtain. Advances in technology and the company equity securities or similar increased dependence on the ready disclosable events. Generally, an Item D. Request for Comments availability of current corporate 10 Form 8–K would be due within two Throughout this release we have information have reshaped the way our business days following a reportable solicited comment on variations to this markets operate. The proposed transaction or loan with an aggregate proposal that would alter the scope of amendment enhances rapid access to value of $100,000 or more with respect the proposal, including the affected this information, thereby protecting to an individual director or executive parties and the burdens placed on them. investors by enabling them to make officer. Transactions and loans with a We request comment on all aspects of informed investment decisions and lower dollar value, grants and awards this cost-benefit analysis, including promoting fair dealing in a company’s pursuant to employee benefit plans, and identification of any additional costs or equity securities. By addressing these Rule 10b5–1 arrangements would be benefits of, or suggested alternatives to, issues, the proposed amendment would reportable not later than the close of the proposed amendment. Commenters enhance investor confidence in the business on the second business day of are requested to provide empirical data fairness and integrity of the securities the week following the event. and other factual support for their views markets. Consequently, the proposed amendment to the extent possible. B. Legal Basis would increase the costs associated with VIII. Initial Regulatory Flexibility compliance with companies’ Exchange We are proposing the amendment to Analysis Act reporting obligations. Form 8–K under the authority set forth This Initial Regulatory Flexibility in Sections 12, 13(a), 15(d), and 23(a) of E. Duplicative, Overlapping or Analysis, or IRFA, has been prepared in the Exchange Act. Related amendment Conflicting Federal Rules accordance with the Regulatory to Securities Act Rule 144 and We believe that there are no rules that 85 Flexibility Act. This IRFA involves a Securities Act Forms S–2, S–3, and S– duplicate, overlap or conflict with the proposed amendment to Form 8–K that 8 are proposed under the authority set proposed amendment, except as would expand the disclosure forth in Sections 3(b) and 19(a) of the follows. A significant portion of the requirements with respect to directors’ Securities Act. information that would be reported by and executive officers’ transactions in a company, specifically directors’ and company equity securities and certain C. Small Entities Subject to the Proposed Amendment executive officers transactions in similar events. Specifically, the company equity securities, is reportable proposed amendment would add a new The proposed amendments would by directors and officers under Section item, Item 10, to Form 8–K. Item 10 affect companies that have a class of 16(a) of the Exchange Act. However, would require companies with a class of equity securities registered under these reports are filed too slowly for the equity securities registered under Section 12 of the Exchange Act that are public to obtain the maximum benefit Section 12 of the Exchange Act to small businesses. Exchange Act Rule 0– from the information disclosed, and are disclose information about directors’ 10(a) 86 defines the term ‘‘small not always readily accessible because and executive officers’ transactions in business’’ to be an issuer that, on the they need not be filed electronically.90 company equity securities (including last day of its most recent fiscal year, Further, Section 16(a) filings do not derivative securities transactions and has total assets of $5 million or less.87 report two categories of information— transactions with the company), We estimate that there are directors’ and executive officers’ Rule directors’ and executive officers’ approximately 2,500 companies subject 10b5–1 arrangements and their receipt arrangements for the purchase or sale of to the reporting requirements of Section of loans (or loan guarantees) from the company equity securities intended to 13 of the Exchange Act that have assets company or its affiliates—that we satisfy the affirmative defense of $5 million or less.88 We further conditions of Exchange Act Rule 10b5– estimate that approximately 1,800 of believe are of equal market value and 1, and loans of money to directors and these companies have a class of equity also should be reported on a current executive officers made or guaranteed security registered under Section 12 of basis. Currently, information about by a company or its affiliates. the Exchange Act.89 management indebtedness to the company is disclosable by the company A. Reasons for, and Objectives of, D. Reporting, Recordkeeping and Other annually. However, this information Proposed Amendment Compliance Requirements also is filed too slowly for the public to The proposed amendment addresses The proposed amendment would obtain the maximum benefit from the investor concerns about a lack of timely impose new reporting requirements by information disclosed, and does not access to information about directors’ requiring the filing of an Item 10 Form address company (or company affiliate) and executive officers’ transactions guarantees of third-party loans. involving company equity securities, 86 17 CFR 240.0–10(a). We have requested comment whether and other events relating to the market 87 A similar definition is provided under it would be feasible or desirable to for company equity securities, the Securities Act Rule 157 [17 CFR 230.157]. permit officers and directors to satisfy relationship between executive 88 This estimate is based on filings with the their Section 16(a) reporting obligations Commission. by attaching a Form 4 to the company’s 89 This estimate is based on a comparison of the 83 × × (Three hours per response 75% $85.00 = number of issuers that filed annual reports on Form Item 10 Form 8–K reporting the same × × $191.25) + (three hours per response 25% 10–K (10,381) and 10–KSB (3,641) during the 2001 $300.00 = $225.00). fiscal year and the number of issuers that filed 90 With respect to transactions that involve sales, 84 See n. 76 above and the accompanying text. proxy (9,892) or information (253) statements notices of proposed sales also may be required on 85 5 U.S.C. 603. during the 2001 fiscal year. Form 144 [17 CFR 239.144]. VerDate 11 transaction, and whether we should exempt small entities from the coverage appropriate in furtherance of the adopt a pilot program in which of the proposed amendment. purposes of the Exchange Act. companies could voluntarily enroll to The proposed amendment is intended G. Request for Comments use this procedure. We have requested to improve the quality and timeliness of comment whether a company should be We encourage the submission of information available to investors about able to satisfy its Item 10 Form 8–K comments with respect to any aspect of directors’ and executive officers’ reporting obligation by adding Form 8– the IRFA. In particular, we request transactions in company equity K header information to an officer’s or comment on the number of small securities and certain related director’s Form 4. We also have businesses that would be affected by the transactions. We do not believe that the requested comment whether any proposed amendment, the nature of the proposed amendment would impose portions of current management impact, how to quantify the number of any burden on competition, except as indebtedness disclosure should be small businesses that would be affected, follows. Companies will incur costs in rescinded. and how to quantify the impact of the complying with the proposed proposed amendment. Commenters are amendment. These costs will include F. Agency Action To Minimize Effect on requested to describe the nature of any preparation and filing expenses. These Small Entities effect and provide empirical data and costs also may include expenses The Regulatory Flexibility Act directs other factual support for their views to associated with establishing practices us to consider alternatives that would the extent possible. These comments and procedures to ensure compliance. accomplish the stated objective, while will be considered in the preparation of The proposed amendment may impose minimizing adverse impact on small the Final Regulatory Flexibility a significantly disproportionate cost on entities. In that regard, we are Analysis, if the proposed amendment is smaller businesses, thereby placing considering the following alternatives: adopted, and will be placed in the same them at a competitive disadvantage. We (a) Differing compliance or reporting public file as comments on the proposed request comment on whether the requirements that take into account the amendment. proposed amendment, if adopted, resources of small entities, (b) the IX. Consideration of Impact on the would impose a burden on competition. clarification, consolidation or Economy Commenters are requested to provide simplification of compliance and empirical data and other factual support reporting requirements under the rule For purposes of the Small Business for their views to the extent possible. for small entities, (c) the use of Regulatory Enforcement Fairness Act of performance rather than design 1996, or ‘‘SBREFA,’’91 we must advise XI. Promotion of Efficiency, standards, and (d) an exemption from the Office of Management and Budget as Competition and Capital Formation the coverage of the proposed to whether the proposed amendment Section 3(f) of the Exchange Act 93 amendment for small entities. constitutes a ‘‘major’’ rule. Under requires us, when engaging in The proposed amendment is intended SBREFA, a rule is considered ‘‘major’’ rulemaking where we are required to to elicit information that would be where, if adopted, it results or is likely consider or determine whether an action useful to investors in evaluating the to result in is necessary or appropriate in the public relationship between executive • An annual effect on the economy of interest, to consider, in addition to the compensation and company securities $100 million or more (either in the form protection of investors, whether the performance, the extent to which of an increase or a decrease); action will promote efficiency, • management’s economic interests are A major increase in costs or prices competition and capital formation. The aligned with those of shareholders for consumers or individual industries; proposed amendment is intended to through ownership of company equity or improve the quality and timeliness of • securities, and management’s Significant adverse effects on information available to investors about transactions with and relationships to competition, investment or innovation. directors’ and executive officers’ the company beyond the scope of Where a rule is ‘‘major,’’ its transactions in company equity employment that could affect effectiveness will generally be delayed securities and similar disclosable management’s performance of its for 60 days pending Congressional events. We believe that the availability fiduciary duties. review. We request comment on the of this information to investors should We have solicited comment as to potential impact of the proposed bolster investor confidence in the whether small business issuers should amendment on the economy on an securities markets. Increasing the be excluded from the proposed annual basis. Commenters are requested transparency of director and executive amendment. It is possible, however, that to provide empirical data and other officer securities transactions should different compliance or reporting factual support for their views to the result in better monitoring by investors. requirements for small entities may not extent possible. This may result in better corporate be appropriate because this disclosure is X. Consideration of Burden on governance, thereby increasing the important to investors in small, as well Competition efficiency of the company. This should as large, entities. Also, it may not be Section 23(a)(2) of the Exchange promote capital formation. In addition, feasible to further clarify, consolidate or Act 92 requires us, when adopting rules the availability of enhanced, more simplify the proposed amendment for timely disclosure should lead to a more small entities because, as contemplated, under the Exchange Act, to consider the impact that any new rule would have on efficient market. the proposed amendment requires only We do not believe that the proposed competition. In addition, Section minimal information about directors’ amendment would impose any burden 23(a)(2) prohibits us from adopting any and executive officers’ transactions in on competition, except as follows. rule that would impose a burden on company equity securities. Finally, for Companies would incur costs in competition not necessary or the reasons just discussed, it may be complying with the proposed inconsistent with the purposes of the amendment. These costs will include 91 Pub. L. No. 104–121, Title II, 110 Stat. 857 Exchange Act to use performance (1996) (codified in various sections of 5 U.S.C., 15 preparation and filing expenses. These standards to specify different U.S.C. and as a note to 5 U.S.C. 601). requirements for small entities or to 92 15 U.S.C. 78w(a). 93 15 U.S.C. 78c(f). VerDate 11 costs also may include expenses an event or events specified in Item 10 Form S–2 associated with establishing practices of the form. Registration Statement Under the Securities and procedures to ensure that * * * * * Act of 1933 companies compile information * * * * * regarding reportable events on a timely PART 239—FORMS PRESCRIBED basis. The proposed amendment may UNDER THE SECURITIES ACT OF 1933 General Instructions impose a significantly disproportionate I. Eligibility Requirements for Use of Form S– 4. The authority citation for Part 239 cost on smaller businesses, thereby 2 continues to read, in part, as follows: placing them at a competitive * * * * * disadvantage. We request comment on Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, C. * * * For purposes of (1) and (2) in the whether the proposed amendment, if 77z–2, 77sss, 78c, 78l, 78m, 78n, 78o(d), preceding sentence, a registrant will be adopted, would promote efficiency, 78u–5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l, considered as having filed all the material 79m, 79n, 79q, 79t, 80a–8, 80a–24, 80a–29, required to be filed under section 13 or 15(d) competition and capital formation. 80a–30 and 80a–37, unless otherwise noted. Commenters are requested to provide and as having filed in a timely manner all * * * * * reports required to be filed notwithstanding empirical data and other factual support 5. Section 239.12 is amended by that the registrant may not have timely filed for their views to the extent possible. revising paragraph (c) to read as follows: one or more current reports on Form 8—K XII. Statutory Authority (§ 249.308 of this chapter) required to be filed § 239.12 Form S–2, for registration under solely to disclose the occurrence of an event The amendments contained in this the Securities Act of 1933 of securities of or events specified in Item 10 of Form 8–K. release are being proposed under the certain issuers. * * * * * authority set forth in Sections 3(b) and * * * * * 19(a) of the Securities Act and Sections (c) The registrant: 7. The authority citations following 12, 13(a), 15(d) and 23(a) of the (1) Has been subject to the § 239.13 are removed. Exchange Act. requirements of section 12 or 15(d) of 8. Section 239.13 is amended by the Exchange Act (15 U.S.C. 78l or revising paragraph (a)(3) to read as Text of Proposed Amendments 78o(d)) and has filed all the material follows: List of Subjects in 17 CFR Parts 230, required to be filed pursuant to section § 239.13 Form S–3, for registration under 239 and 249 13, 14 or 15(d) of the Exchange Act (15 the Securities Act of 1933 of securities of U.S.C. 78m, 78n or 78o(d)) for a period Securities. certain issuers offered pursuant to certain of at least thirty-six calendar months types of transactions. In accordance with the foregoing, immediately preceding the filing of the * * * * * Title 17, Chapter II of the Code of registration statement on this Form; and (a) Registrant requirements. * * * Federal Regulations is proposed to be (2) Has filed in a timely manner all (3) The registrant: amended as follows: reports required to be filed during the (i) Has been subject to the twelve calendar months and any portion PART 230—GENERAL RULES AND requirements of section 12 or 15(d) of of a month immediately preceding the the Exchange Act (15 U.S.C. 78l or REGULATIONS, SECURITIES ACT OF filing of the registration statement and, 1933 78o(d)) and has filed all the material if the registrant has used (during the required to be filed pursuant to sections 1. The general authority citation for twelve calendar months and any portion 13, 14 or 15(d) of the Exchange Act (15 Part 230 is revised to read as follows: of a month immediately preceding the U.S.C. 78m, 78n or 78o(d)) for a period filing of the registration statement) Authority: 15 U.S.C. 77b, 77c, 77d, 77f, of at least twelve calendar months § 240.12b–25(b) of this chapter under immediately preceding the filing of the 77g, 77h, 77j, 77r, 77s, 77sss, 77z–3, 78c, 78d, the Exchange Act with respect to a 78l, 78m, 78n, 78o, 78t, 78w, 78ll(d), 78mm, registration statement on this Form; and 79t, 80a–8, 80a–24, 80a–28, 80a–29, 80a–30 report or a portion of a report, that (ii) Has filed in a timely manner all and 80a–37, unless otherwise noted. report or portion thereof has actually reports required to be filed during the been filed within the time period * * * * * twelve calendar months and any portion prescribed by that section. For purposes 2. The authority citations following of a month immediately preceding the of this paragraph, a registrant will be filing of the registration statement and, § 230.144 are removed. considered as having filed all the 3. Section 230.144 is amended by if the registrant has used (during the material required to be filed under twelve calendar months and any portion adding a sentence at the end of section 13 or 15(d) of the Exchange Act paragraph (c)(1) to read as follows: of a month immediately preceding the and as having filed in a timely manner filing of the registration statement) § 230.144 Persons deemed not to be all reports required to be filed § 240.12b–25(b) of this chapter with engaged in a distribution and therefore not notwithstanding that the registrant may respect to a report or a portion of a underwriters. not have timely filed one or more report, that report or portion thereof has * * * * * current reports on Form 8–K (§ 249.308 actually been filed within the time (c) Current public information. *** of this chapter) required to be filed period prescribed by that section. For (1) Filing of reports. * * * For solely to disclose the occurrence of an purposes of this paragraph, a registrant purposes of this paragraph, an issuer event or events specified in Item 10 of will be considered as having filed all the will be considered as having filed all of Form 8–K; and material required to be filed under the reports required to be filed under * * * * * section 13 or 15(d) of the Exchange Act Section 13 or 15(d) of the Securities 6. Form S–2 (referenced in § 239.12) and as having filed in a timely manner Exchange Act of 1934 (15 U.S.C. 78m is amended by adding a sentence at the all reports required to be filed and 78o(d)) notwithstanding that the end of General Instruction I.C to read as notwithstanding that the registrant may issuer may not have timely filed one or follows: not have timely filed one or more more current reports on Form 8–K Note— The text of Form S–2 does not, and current reports on Form 8–K (§ 249.308 (§ 249.308 of this chapter) required to be this amendment will not, appear in the Code of this chapter) required to be filed filed solely to disclose the occurrence of of Federal Regulations. solely to disclose the occurrence of an VerDate 11 event or events specified in Item 10 of event or events specified in Item 10 of B. Events To Be Reported and Time for Filing Form 8–K; and Form 8–K: of Reports * * * * * * * * * * 1. * * * Item 10 applies only to registrants 11. Form S–8 (referenced in with a class of equity security (as defined in 9. Form S–3 (referenced in § 239.13) § 240.3a11–1 of this chapter) registered under is amended by adding a sentence at the § 239.16b) is amended by revising the Section 12 of the Act. A registrant must file end of General Instruction I.A.3 to read introductory text of General Instruction a report of any event specified in paragraphs as follows: A.1. to read as follows: (a) and (c) of Item 10 with an aggregate value Note—The text of Form S–3 does not, and Note—The text of Form S–8 does not, and of $100,000 or more (other than a grant or this amendment will not, appear in the Code this amendment will not, appear in the Code award pursuant to an employee benefit plan) of Federal Regulations. of Federal Regulations. within two business days. The registrant must file a report of any grant or award Form S–3 Form S–8 pursuant to an employee benefit plan, any event specified in paragraphs (a) and (c) of Registration Statement Under the Securities Registration Statement Under the Securities Item 10 with an aggregate value less than Act of 1933 Act of 1933 $100,000, and any event specified in * * * * * * * * * * paragraph (b) of Item 10 not later than the General Instructions close of business on the second business day General Instructions of the week following the week in which the I. Eligibility Requirements for Use of Form S– A. Rule as to Use of Form S–8 event occurred. However, the registrant may 3 1. Any registrant that, immediately prior to defer reporting any event specified in paragraphs (a) and (c) with an aggregate value * * * * * the time of filing a registration statement on this Form, is subject to the requirement to file not exceeding $10,000 until the aggregate A. Registrant Requirements. reports pursuant to Section 13 or 15(d) of the cumulative value of those unreported events * * * * * Securities Exchange Act of 1934 (the with respect to the same executive officer or 3. * * * For purposes of (a) and (b) in the ‘‘Exchange Act’’), and has filed all reports director exceeds $10,000. The Commission preceding sentence, a registrant will be and other materials required to be filed by hereby finds that it is not in the public considered as having filed all the material such requirements during the preceding 12 interest to impose any sanction on a registrant, notwithstanding a violation, that required to be filed under section 13 or 15(d) months (or for such shorter period that the demonstrates that (1) at the time of the of the Exchange Act and as having filed in registrant was required to file such reports violation, it had designed procedures and a a timely manner all reports required to be and materials), may use this Form for system for applying such procedures filed notwithstanding that the registrant may registration under the Securities Act of 1933 sufficient to provide reasonable assurances not have timely filed one or more current (‘‘Act’’) of the securities listed in paragraph 1(a). For purposes of this paragraph 1, a that Item 10 events are timely reported, (2) reports on Form 8–K (§ 249.308 of this at the time of the violation, the registrant chapter) required to be filed solely to disclose registrant will be considered as having filed all reports and other materials required to be followed those procedures, and (3) as the occurrence of an event or events specified promptly as reasonably practicable, the in Item 10 of Form 8–K. filed by the requirements of Sections 13 or 15(d) of the Exchange Act notwithstanding registrant made a filing to correct any * * * * * that the registrant may not have timely filed violation. 10. Section 239.16b is amended by one or more current reports on Form 8–K * * * * * (§ 249.308 of this chapter) required to be filed revising the introductory text of Information To Be Included in the Report paragraph (a) to read as follows: solely to disclose the occurrence of an event or events specified in Item 10 of Form 8–K: * * * * * § 239.16b Form S–8, for registration under * * * * * Item 10. Transactions by Directors and the Securities Act of 1933 of securities to Executive Officers be offered to employees pursuant to PART 249—FORMS, SECURITIES (a)(1) If a director or executive officer (as employee benefit plans. EXCHANGE ACT OF 1934 defined in § 240.3b–7 of this chapter) of the (a) Any registrant that, immediately registrant acquires or disposes of any equity 12. The authority citation for Part 249 prior to the time of filing a registration security (as defined in § 240.3a11–1 of this continues to read, in part, as follows: chapter) of the registrant, other than a statement on this form, is subject to the derivative security (as defined in Instruction requirement to file reports pursuant to Authority: 15 U.S.C. 78a, et seq., unless otherwise noted. 1 to this Item), whether or not of a class sections 13 or 15(d) of the Securities registered under Section 12 of the Exchange Exchange Act of 1934 (15 U.S.C. 78m or * * * * * Act, the registrant must report with respect 78o(d)), and has filed all reports and 13. Form 8–K (referenced in to each transaction: other materials required to be filed by § 249.308) is amended by adding six (i) The name and title of the director or such requirements during the preceding sentences to the end of paragraph 1 of executive officer; 12 months (or for such shorter period General Instruction B and by adding (ii) The date of the transaction; that the registrant was required to file Item 10 under ‘‘Information to Be (iii) The title and number of securities acquired or disposed of; such reports and materials), may use Included in the Report’’ to read as (iv) The per share acquisition or this form for registration under the follows: disposition price, if any; Securities Act of 1933 (the ‘‘Act’’) of the Note—The text of Form 8–K does not, and (v) The aggregate value of the transaction; securities listed in paragraphs (a)(1) and this amendment will not, appear in the Code (vi) The nature of the transaction (e.g., (a)(2) of this section. For purposes of of Federal Regulations. open market sale or purchase, sale to or this paragraph, a registrant will be purchase from the registrant, gift); and Form 8–K considered as having filed all reports (vii) Any other material information and other materials required to be filed Current Report regarding the transaction. by the requirements of Sections 13 or (2) If a director or executive officer of the Pursuant to Section 13 or 15(d) of the registrant acquires or disposes of any 15(d) notwithstanding that the registrant Securities Exchange Act of 1934 derivative security (as defined in Instruction may not have timely filed one or more * * * * * 1 to this Item) with respect to the registrant, current reports on Form 8–K (§ 249.308 whether or not issued by the registrant, the of this chapter) required to be filed General Instructions registrant must report with respect to each solely to disclose the occurrence of an * * * * * transaction: VerDate 11 (i) The name and title of the director or (ii) The date on which the director or (i) The name and title of the director or executive officer; executive officer entered into the contract, executive officer; and (ii) The date of the transaction; instruction or written plan; and (ii) The date on which the forgiveness, (iii) The number of derivative securities (iii) A description of the contract, payment or foreclosure occurred, and the acquired or disposed of; instruction or written plan, including its dollar amount of forgiveness or payment and (iv) The per share exercise or conversion duration, the aggregate number of securities the number and class of any securities price (or other price, such as a notional price, to be purchased or sold, and the name of the foreclosed upon. used in the terms of the derivative security); counterparty or agent. Instructions. (v) The price, if any, the executive officer (2) If a director or executive officer of the or director paid or received for the derivative registrant terminates or modifies any 1. For purposes of this Item, ‘‘derivative security; contract, instruction or written plan for the security’’ includes instruments defined as (vi) The date(s) on which each derivative purchase or sale of equity securities of the ‘‘derivative securities’’ in § 240.16a–1(c), as security becomes exercisable (or subject to registrant (including derivative securities as well as rights with a value derived from the termination) and its date of expiration (or defined in Instruction 1 to this Item) value of an equity security that have an final termination); intended to satisfy the affirmative defense exercise or conversion privilege at a price (vii) The title and number of underlying conditions of § 240.10b5–1(c) of this chapter, that is not fixed. securities (or cash equivalent) that would be the registrant must report: 2. The registrant’s disclosure obligations acquired or disposed of upon exercise, (i) The name and title of the director or under paragraph (a) of this Item apply to any conversion, termination, or settlement; executive officer; transaction in which the director or executive (viii) The nature of the transaction (e.g., (ii) The date on which the director or officer has a pecuniary interest, as defined in option grant, sale or purchase of call option, executive officer terminated or modified the § 240.16a–1(a)(2)(i), other than transactions sale or purchase of put option, entering into contract, instruction or written plan; and that satisfy the exemptive conditions of a swap or futures contract). If the transaction (iii) A description of the modification to § 240.16a–2(d), § 240.16a–3(f)(1)(i)(B), involves a collar or other hedge, the the contract, instruction or written plan, § 240.16a–9, § 240.16a–11, § 240.16a–12, registrant must so indicate and describe all including any modification to its duration, material terms; and § 240.16a–13, § 240.16b–7, and § 240.16b–8 the aggregate number of securities to be (ix) Any other material information of this chapter, and transfers by will or the purchased or sold, the interval at which regarding the transaction, including laws of descent and distribution. The securities are to be purchased or sold, the contingencies applicable to exercise. registrant is not required to disclose trust number of securities to be purchased or sold (3) If a director or executive officer of the transactions that the director or executive in each interval, the price at which securities registrant exercises, converts, terminates or officer is not required to report pursuant to settles any derivative security (as defined in are to be purchased or sold, and the identity § 240.16a–8. Instruction 1 to this Item) with respect to the of the counterparty or agent. 3. The disclosure obligations of paragraph registrant, the registrant must report with (c)(1) If the registrant or an affiliate of the (b) of this Item apply to any contract, respect to each transaction: registrant agrees to lend or lends money to instruction or written plan for the purchase (i) The name and title of the director or a director or executive officer of the or sale of equity securities of the registrant executive officer; registrant, or enters into a guarantee or in which the director or executive officer has (ii) The date of the exercise, conversion, similar arrangement in favor of another a pecuniary interest, as defined in § 240.16a– termination or settlement; person who agrees to lend or lends money to 1(a)(2)(i), other than a director’s or executive (iii) The per share price used for exercise, the director or executive officer, the officer’s enrollment in a broad-based conversion, termination or settlement; registrant must report: employee benefit plan for the acquisition of (iv) The title and number of underlying (i) The name and title of the director or registrant equity securities through payroll shares (or cash equivalent) acquired or executive officer; deduction. However, paragraph (a) disclosure disposed of; (ii) The date of each such agreement (or is required of transactions in these plans that (v) The nature of the transaction (e.g., guarantee or similar arrangement) or loan are volitional intra-plan transfers involving exercise of option, settlement of swap thereunder; an issuer equity securities fund, or a cash agreement). If the transaction involves a (iii) The dollar amount and other material distribution funded by a volitional collar or other hedge, the registrant shall so terms of the agreement or loan, and, if disposition of an issuer equity security, indicate and describe all material terms; and applicable guarantee or similar arrangement, unless the transaction is made in connection (vi) Any other material information including the interest rate, terms of with the director’s or executive officer’s regarding the transaction. repayment, and any provisions with respect death, disability, retirement or termination of (b)(1) If a director or executive officer of to forgiveness; employment, or is required to be made the registrant enters into any contract, (iv) The number and class of any registrant available to plan participants pursuant to the instruction or written plan for the purchase securities pledged as collateral; and Internal Revenue Code. or sale of equity securities of the registrant (v) The material terms of any pledge, (including derivative securities as defined in including whether it is made with or without Dated: April 12, 2002. Instruction 1 to this Item) intended to satisfy recourse. By the Commission. the affirmative defense conditions of (2) If any loan described in paragraph (c)(1) Margaret H. McFarland, § 240.10b5–1(c) of this chapter, the registrant to this Item is forgiven, if the registrant or its Deputy Secretary. must report: affiliate makes payment on its guarantee or (i) The name and title of the director or similar arrangement, or if any collateral is [FR Doc. 02–9455 Filed 4–22–02; 8:45 am] executive officer; foreclosed upon, the registrant must report: BILLING CODE 8010–01–U VerDate 11 Part VII Department of Health and Human Services Centers for Disease Control and Prevention National Cancer Prevention and Control Program; Notice of Availability of Funds; Notice VerDate 11 DEPARTMENT OF HEALTH AND comprehensive cancer control activities. Special Guidelines for Technical HUMAN SERVICES CDC defines comprehensive cancer Assistance control as an integrated and coordinated Centers for Disease Control and approach to reduce the incidence, Conference Call: Technical assistance Prevention morbidity and mortality of cancer will be available for potential applicants through prevention, early detection, on three conference calls. [Program Announcement 02060] treatment, rehabilitation, and palliation. The first call will be for States/Tribes/ Territories that are in atlantic, eastern, National Cancer Prevention and A.2. NBCCEDP or central time zones, and will be held Control Program; Notice of Availability on April 29, 2002 from 9:00 a.m. to of Funds The NBCCEDP component supports the development of systems to assure 11:00 a.m. (eastern time). A. Purpose breast and cervical cancer screening for The second call will be for States/ The Centers for Disease Control and low income, underserved, uninsured Tribes/Territories that are in mountain Prevention (CDC) announces the women with special emphasis on or pacific time zones, and will be held availability of fiscal year (FY) 2002 reaching those who are geographically on April 29, 2002 from 3:30 p.m. to 5:30 funds for a cooperative agreement or culturally isolated, older, or members p.m. (eastern time). program for the National Cancer of racial/ethnic minorities. Components While all information disseminated Prevention and Control Program of the NBCCEDP include surveillance, will be consistent throughout the calls, (NCPCP). This program addresses the partnership development, screening, a third call will be held particularly for ‘‘Healthy People 2010’’ focus area(s) referral and follow-up, quality tribal and territorial organizations on related to cancer. assurance, public and provider April 30, 2002 from 4:00 p.m. to 6:00 This Program Announcement is education, and evaluation. These p.m. (eastern time). issued in an effort to simplify and components are carried out at the local, Potential applicants are requested to streamline the grant pre-award and post- State and national levels through call in using only one telephone line. award administrative process, measure collaborative partnerships with State The conference can be accessed by performance related to each grantee’s health agencies, community-based calling 1–800–713–1971 or 404–639– stated objectives and identify and organizations, tribal governments, 4100, and entering access code 285614. establish the long-term goals of a NCPCP universities, a variety of medical care The purpose of the conference call is to program through stated performance providers and related agencies and help potential applicants to: institutions, and the business and measures. Examples of the benefits of 1. Understand the scope and intent of the streamlined process are: consistency voluntary sectors. These partners work together to develop, implement and the Program Announcement for the in reporting expectations; and the National Cancer Prevention and Control ability for grantees to advance to the evaluate strategies to promote breast and cervical cancer prevention and early Program; Implementation level for the National 2. Be familiar with the Public Health Comprehensive Cancer Control Program detection, to increase access to related services and to improve the quality and Services funding policies and (NCCCP) or Enhancement level for the application and review procedures. National Program of Cancer Registries timeliness of the services. Participation in this conference call is (NPCR) based on performance when A.3. NPCR funds are available. not mandatory. At the time of the call, This Announcement incorporates The NPCR component supports efforts if you have problems accessing the funding guidance for the following three to establish population-based cancer conference call, please call 404–639– components: the National registries where they do not exist and to 7550. improve existing cancer registries. Comprehensive Cancer Control Program B. Eligible Applicants (NCCCP) (previously awarded under Throughout this program Program Announcements #99046, and announcement, to the extent possible, Applicants may apply for any or all of #01115); the National Breast and information that is specific to the three the components within this program Cervical Cancer Early Detection Program individual components has been announcement for which they are (NBCCEDP), (previously awarded under grouped into a section that addresses eligible. that component only. Section G Program Announcements #97018, B.1. Eligible for All Components #96023, #99052, and #01038); and the ‘‘Specific Guidance for NCCCP’’ National Program of Cancer Registries addresses the National Comprehensive Potential applicants that are eligible (NPCR) (previously awarded under Cancer Control Program; Section H for all components are the health Program Announcement #00027). ‘‘Specific Guidance for NCCEDP’’ departments of States or their bona fide The NCPCP will assist States/District addresses the National Breast and agents, the District of Columbia, the of Columbia/Tribes/Territories in Cervical Cancer Early Detection Commonwealth of Puerto Rico, the developing, implementing, maintaining, Program; and Section I ‘‘Specific Virgin Islands, the Commonwealth of enhancing, integrating, and evaluating a Guidance for NPCR’’ addresses the the Northern Mariana Islands, American cancer program inclusive of cancer National Program of Cancer Registries. Samoa, Guam, the Federated States of surveillance, prevention and early These component sections include Micronesia, the Republic of the specific guidance regarding: Marshall Islands, and the Republic of detection programs, and which focuses • on eliminating health disparities. The Eligibility Palau. (See also Attachment A— • purpose of each of the three Availability of Funds Eligibility Table in the appendices.) • Program Requirements programmatic components within the B.2. Eligible for Specific Components/ • Content NCPCP follows. Guidance • Other Requirements A.1. NCCCP • Evaluation Criteria In addition to the eligible applicants The NCCCP component supports the Please refer to these specific listed above, potential applicants that planning and implementation of component sections for information. are eligible for specific components are: VerDate 11 B.2.a. NCCCP applications received from Tribes and Applicants are encouraged to identify Federally recognized Indian tribal Territories. and leverage mutually beneficial governments and tribal organizations. Existing grantees, under Program opportunities to interact and integrate Announcement Numbers 01115 (for with other State health department B.2.b. NBCCEDP NCCCP—Planning and Implementation programs that address related chronic Federally recognized Indian Tribal Recipients), 99052, and 01038 (for diseases or risk factors. This may governments and Tribal organizations, NBCCEDP), or 00027 (for NPCR), will include cost sharing to support a shared urban Indian organizations and inter- have their existing project periods position such as a Chronic Disease tribal consortia (hereafter referred to as extended to FY 2007 upon receipt of a Epidemiologist, Health Communication Tribes) whose primary purpose is to technically acceptable application. Specialist, Program Evaluator, or Policy improve American Indian/Alaska Native Applications for these funds will be Analyst to work on relevant activities health and which represent the Native reviewed as non-competitive. across units/departments within the population in their catchment area. All currently funded programs whose State health department. Such activities project periods end this calendar year, may include, but are not limited to, joint B.2.c. NPCR as well as any new applicants, will planning, joint funding of Academic or nonprofit organizations submit competitive applications. complementary activities, public health designated by the State to operate the Continuation awards within an education, collaborative development State’s cancer registry. approved project period will be made and implementation of environmental, State health departments are uniquely on the basis of satisfactory progress as policy, systems, or community qualified to define the cancer problem evidenced by required progress reports interventions and other cost sharing throughout the State, to plan and and the availability of funds. activities. develop statewide strategies to reduce C.1. Component Funding the burden of cancer, to provide overall C.4. Recipient Financial Participation For specific ‘‘Component Funding’’ State coordination of cancer prevention information, please see Sections G, H, For specific ‘‘Recipient Financial and control activities among partners, to and I. Participation’’ information, please see lead and direct communities, to direct Sections G, H, and I. and oversee interventions within C.2. Requested Budget Information C.5. Direct Assistance overarching State policies, and to Applicants should submit separate monitor critical aspects of cancer. budgets for each component (as well as For specific ‘‘Direct Assistance’’ Note: Title 2 of the United States Code separate budgets if applying for the information, please see Sections G, H, section 1611 states that an organization Optional Funding under NCCCP) in and I. described in section 501(c)(4) of the Internal response to this program Revenue Code that engages in lobbying C.6. Funding Preferences announcement. Each detailed budget activities is not eligible to receive Federal For specific ‘‘Funding Preference’’ funds constituting an award, grant or loan. and narrative justification should support the activities for year one information, please see Sections G, H, C. Availability of Funds funding in response to this Program and I. Approximately $178,000,000 is Announcement for FY 2002 support. C.7. Funding Consideration available in FY 2002 to fund Current recipients’ unobligated funds from the immediately prior budget For specific ‘‘Funding Consideration’’ approximately 75 awards. information, please see Sections G, H, It is expected that awards under this period may be rolled into successful and I. program announcement will begin on or recipients’ new awards unless they are about September 30, 2002, and will be currently in the last year of an existing D. Content made for a 9 month budget period for project period. D.1. Letter of Intent the first year which will end on June 29, Applications should follow the 2003. Future budget periods will be 12 guidance below with respect to the One Letter of Intent (LOI) is requested month periods, and will begin on June development and submission of an from each applicant applying for any 30 of every year and run through June itemized budget and justification for component(s) of this program. The each component. 29 of each following year. These budget narrative should be no more than one periods will occur within a project C.3. Use of Funds single-spaced page, printed on one side, period of up to five years. Funding For specific ‘‘Use of Funds’’ with one inch margins, and unreduced estimates may change. information, please see Sections G, H, font. Your LOI will not be evaluated, but The level of competitiveness varies and I. will be used to assist CDC in planning within this program announcement for Cooperative agreement funds may be for the objective review for this program each component based on whether a used to support personnel and to and should include the announcement program is currently funded, and if purchase equipment, supplies, and number, the specific component(s) and funded, based on the current project services directly related to project parts of the component, if applicable, period. All non-competitive activities and consistent with the scope for which funds are being applied, and applications will be reviewed by a of the cooperative agreement. the name of the principal investigator. Technical Acceptability Review process. Funds provided under this program D.2. Application Development All competitive applications for the announcement may not be used to: NCCCP component will be reviewed by • Conduct research projects. Use the information in the Program an Independent Objective Review Panel. Guidance regarding CDC’s definition of Requirements, Other Requirements, and Competitive applications submitted for ‘‘research’’ should be reviewed at http:/ Evaluation Criteria sections to develop NBCCEDP and NPCR components will /www.cdc.gov/od/ads/opspoll1.htm. the application content. Your undergo a Technical Acceptability • Supplant State or local funds, to application will be evaluated using the Review process for applications provide inpatient care or treatment, or criteria listed, so it is important to received from States and an to support the construction or follow them in laying out your program Independent Objective Review for renovation of facilities. plan. VerDate 11 Applications should follow the For specific ‘‘Evaluation Criteria’’ years.) At that time, eligible applicants guidance below with respect to page information, please see Sections G, H, may apply for Planning funds or limitations for each component. All and I. Implementation funds but not both. applications should be printed on one In future budget years, Planning G. Specific Guidance for the National side, with one inch margins, using Program recipients demonstrating Comprehensive Cancer Control unreduced font. All materials must be success in meeting Planning Program Program (NCCCP) provided in an unbound, one-sided, 81⁄2 Performance Measures and fulfilling the × 11″ print format, suitable for G.1. Eligible Applicants requirements to advance to the photocopying (i.e., no audiovisual The NCCCP component of this Implementation Program may request materials, posters, tapes, etc.). Program Announcement incorporates Implementation Program funding before the end of the full five year project D.3. Page Limitations two types of eligibility. The first type is period. Applicants who do not submit For specific ‘‘Page Limitations’’ a Planning Program. Applicants who are in the planning phase of establishing a technically acceptable applications for information, please see Sections G, H, Implementation funding under this and I. State/Tribe/Territory wide comprehensive cancer control plan scenario would continue receiving D.4 Application Outline should apply as a Planning Program. Planning funding support. Applicants may apply for any or all of The second type of NCCCP eligibility Optional Additional NCCCP Funds is an Implementation Program. the components within this program Additional optional funding for Applicants who have already announcement for which they are NCCCP (Implementation recipients established a comprehensive cancer eligible. Please provide specific only) is available for the control plan and need to begin ‘‘Application Outline’’ information for implementation of Cancer Plan implementing established priorities each component as outlined in specific priorities related to colorectal, ovarian, should apply as an Implementation Sections G, H, and I. prostate, and skin cancers. Program. Approximately $3.9 million will be E. Submission and Deadline Applicants are eligible for Planning or distributed to support activities as Implementation Program funding, but E.1. Letter of Intent follows: not both. On or before May 15, 2002, submit the • Colorectal cancer activities— LOI to the Grants Management G.2. Availability of Funds $1,000,000 • Ovarian cancer activities— Specialist identified in the ‘‘Where to Approximately $2,800,000 is available $1,000,000 Obtain Additional Information’’ section to fund 14 existing NCCCP grantees • Prostate cancer activities— of this announcement. under Program Announcement Number $1,500,000 E.2. Application 01115. It is expected that the average • Skin cancer activities—$475,000 amount for NCCCP Planning Program Approximately 15 awards to Submit the original and two copies of recipients will be $125,000, ranging CDC Form 0.1246. Forms are available successful Implementation Program from $100,000 to $150,000 for a project recipients are anticipated with these in the application kit and at the period of up to five years. The average following Internet address: additional funds. It is expected that the amount for NCCCP Implementation average amount for this optional www.cdc.gov/od/pgo/forminfo.htm Program recipients will be $250,000, On or before June 20, 2002, submit the component will be $300,000, and will ranging from $200,000 to $300,000 for a original and two copies of the range from $100,000 to $700,000. These project period of up to five years. application to: awards will be for a project period of up Technical Information Management In addition, approximately $1,280,000 to five years with the exception of (TIM), Procurement and Grants Office, is available in FY 2002 to fund five to activities related to skin cancer. Skin Centers for Disease Control and eight new NCCCP recipients. The cancer activities will be funded for a Prevention, 2920 Brandywine Road, average award, range of awards, and one year period only. These Room 3000, Atlanta, GA 30341–4146. project period for these awards are the applications will be reviewed by an Please reference Program same as above. Independent Objective Review Panel. Announcement Number 02060 National Existing grantees awarded under Cancer Prevention and Control Program NCCCP Program Announcement G.2.a. Direct Assistance on the mailing envelope and on the Number 99046 should apply for this Applicants may request Federal application Standard Form 424, block component competitively. If the personnel, as direct assistance, in lieu of 11. Please also make sure that block 16 applicant competes successfully, a new a portion of financial assistance. on Standard Form 424, regarding award number under this program Requests for new direct-assistance Executive Order 12372 has been announcement will be issued for a new should include: completed correctly. five year project period. If the applicant G.2.a.(1) Number of assignees requested; is unsuccessful, the project period G.2.a.(2) Description of the position and E.3. Deadline previously awarded under Program proposed duties; Applications shall be considered as Announcement Number 99046 will G.2.a.(3) Ability or inability to hire meeting the deadline if they are remain and expire at its originally locally with financial assistance; received on or before the deadline date. anticipated date of November 30, 2002. G.2.a.(4) Justification for request; Pending availability of funds, each G.2.a.(5) Organizational chart and name F. Evaluation Criteria year of the project period for this overall of intended supervisor; Each application will be evaluated program announcement (9/30/02–6/29/ G.2.a.(6) Opportunities for training, individually against the following 07) will incorporate an open season for education, and work experiences for criteria by either a Technical competitive applications for the NCCCP assignees; and Acceptability Review Panel or an component with applications due on or G.2.a.(7) Description of assignee’s access Independent Review Group appointed about February 28. (Specific guidance to computer equipment for by CDC. with exact dates to be provided in future communication with CDC (e.g., VerDate 11 personal computer at home, personal requirements. These performance registry) to define the cancer burden, set computer at workstation, shared measures are listed following each priorities and choose appropriate computer at workstation on site, associated recipient activity. intervention strategies. shared computer at a central office). G.3.a.(1) Planning Activities: G.3.a.(1)(d) Conduct systematic G.3.a.(1)(a) Enhance comprehensive evaluation of the comprehensive cancer G.2.b. Use of Funds cancer control infrastructure by control planning process and the These funds should not be used to acquiring key staff and associated program through identifying resources support other existing categorical resources to produce a State/Tribe/ and staff for evaluation, defining programs such as breast and cervical Territory-wide comprehensive cancer planning evaluation questions, assessing cancer screening, cancer registry, control plan. Performance will be the planning process, and identifying laboratory or clinical services, or measured by the extent to which the emerging challenges, solutions and tobacco control programs. Funds program has (a) put in place the outcomes of the planning process. The awarded under this program infrastructure for NCCCP including staff applicant should develop objective/ announcement may not be used to and other resources and (b) generated quantitative measures of effectiveness supplant existing program efforts. Funds support, resources or secured funding to that will demonstrate accomplishment may not be used to provide direct support NCCCP activities. of program goals and objectives and medical care. G.3.a.(1)(b) Mobilize support for measure intended outcomes. These comprehensive cancer control planning measures of effectiveness, through G.2.c. Recipient Financial Participation activities by assessing and building which the program will assess its own Recipient financial participation is support among the public and private activities, should be specific to not required for this program in years 1– sectors. Build partnerships by proposed activities in the work plan and 2 of funding. Recipient financial identifying, contacting and inviting should be submitted as part of this participation may be required in years potential key private, professional, application. Performance will be 3–5 in an amount not less than one voluntary, and nonprofit cancer control measured by the extent to which the dollar for each three dollars of Federal organizations, policymakers, consumers, program has: funds awarded under this program. payers, media, State and Federal G.3.a.(1)(d)[1] Continuously evaluated and monitored its own process, G.2.d. Funding Preference agencies, surveillance and data agencies, research and academic objectives and activities. There are no funding preferences institutions, and others to become G.3.a.(1)(d)[2] Developed and applicable to this component. members of a new or existing State/ monitored measures of effectiveness for G.2.e. Funding Consideration Tribe/Territory-wide comprehensive its proposed activities. cancer control coalition/partnership. G.3.a.(2) Implementation Activities: Funding consideration for the NCCCP Performance will be measured by the G.3.a.(2)(a) Implement priorities as component may be based on: extent to which the program has established by the State/Tribe/ G.2.e.(1) Total amount of funding developed or used coalitions and Territory’s comprehensive cancer available to support the NCCCP. See partners, both within (such as Breast control plan, which provides a G.2. ‘‘Availability of Funds’’ for this and Cervical Cancer Early Detection framework for action to reduce the information. Programs and the State or Territorial burden of cancer in the State/Tribe/ G.2.e.(2) The proportion of funds Central Cancer Registry) and outside of Territory. Update and modify plan awarded for NCCCP activities that were the organization and sustained these priorities and strategies to enable spent during the budget period, if such partnerships as ongoing entities by such continual identification of critical target funds were received in the past. activities as: areas for cancer prevention and control G.2.e.(3) The appropriate and timely activities; assess gaps in existing use of unobligated funds from previous G.3.a.(1)(b)[1] Establishing written strategies to address the cancer burden; years, if such funds were received in the responsibilities (e.g., in a mission and prioritize and identify past. statement or scope of work); implementing organizations for G.3.a.(1)(b)[2] Establishing written inter- G.3. Program Requirements for NCCCP emerging priority plan strategies. organizational linkages (e.g., a Performance will be measured by the In conducting activities to achieve the Memorandum of Understanding); extent to which the program has: purpose of this program, the recipient G.3.a.(1)(b)[3] Conducting formal G.3.a.(2)(a)[1] Identified partners who will be responsible for conducting the assessment of members’ skills and are implementing cancer control plan activities under G.3.a. (Recipient needs for education or training; or activities/strategies. Activities) and CDC will be responsible G.3.a.(1)(b)[4] Conducting assessments G.3.a.(2)(a)2) Established a process for for the activities listed under G.3.b. of partnership member satisfaction. assessing gaps in existing cancer control (CDC Activities). All NCCCP recipient G.3.a.(1)(c) Assess and address the plan activities/strategies. activity efforts to address tobacco use, State/Tribe/Territory cancer burden to G.3.a.(2)(b) Enhance the poor oral health, poor nutrition, determine the critical target areas for organizational infrastructure by physical inactivity, and school health cancer prevention and control activities; acquiring key staff and associated should be coordinated with State assess gaps in strategies to address the resources to coordinate and integrate Programs focused on tobacco, oral cancer burden; develop a cancer prevention and control efforts. health, nutrition, physical activity, and comprehensive cancer control plan that This would include efforts to prioritize coordinated school health programs. includes prioritized measurable goals and support the implementation of Activities of these programs should not and objectives; and identify cancer prevention and control activities. be duplicated. implementing organizations for priority Identify and secure resources to support plan strategies. Performance will be the development and dissemination of G.3.a. Recipient Activities measured by the extent to which the programs that will contribute to the CDC has developed performance program has developed and used data priority areas identified within the measures to evaluate recipients’ (such as that which is available from the comprehensive cancer control plan. progress in meeting NCCCP State or territorial central cancer Support organizational and stakeholder VerDate 11 participation in national cancer measured by the extent to which the G.4. Content prevention, early detection, and control program has: Use the information in Sections G.3. campaigns. G.3.a.(2)(d)[1] Continuously evaluated Program Requirements for NCCCP, G.4. Performance will be measured by the and monitored its own process and the Content, G.5. Other NCCCP extent to which the program has: outcomes of the NCCCP Plan, its Requirements, and G.6. Evaluation G.3.a.(2)(b)[1] Put in place the objectives and activities. Criteria to develop the application G.3.a.(2)(d)[2] Developed and infrastructure for NCCCP including staff content. Your application will be monitored measures of effectiveness for and other resources. evaluated using the criteria listed, so it its proposed activities. G.3.a.(2)(b)[2] Generated support, is important to follow them in laying resources or secured funding for G.3.a.(3) Recipient Activities for NCCCP (Optional) Additional Activities out your program plan. implementation of priorities from the Applications should not exceed 30 comprehensive cancer control plan. in Colorectal, Ovarian, Prostate and Skin Cancer: double-spaced pages including budget G.3.a.(2)(c) Mobilize support for and justification. Applicants should also cancer prevention and control activities Applicants who are submitting requests in response to this program submit appendices (including by assessing, continuing, and building curriculum vitae, job descriptions, additional support (resources, political announcement for NCCCP Implementation Programs have the organizational charts, and any other will, etc.) among the public and private supporting documentation), which sectors. Build new and enhance existing option to submit additional proposal(s) to pursue activities described in their should not exceed an additional 20 partnerships by identifying, contacting pages (20 page limit excludes State/ and inviting potential key private, Comprehensive Cancer Control Plan addressing colorectal, ovarian, prostate Tribe/Territory cancer plan, if professional, voluntary, and nonprofit applicable). cancer control organizations, and skin cancers. Up to four proposals policymakers, consumers, payers, may be submitted, but only one G.4.a. NCCCP Application Outline proposal in any cancer area. Activities media, State and Federal agencies, Please provide the following proposed should be evidence-based; surveillance and data agencies, research information as outlined below. developed through coordination and and academic institutions, and others to G.4.a.(1) Executive Summary: collaboration between governmental become members of a new or existing The applicant should provide a clear, and non-governmental partners; and State/Tribe/Territory-wide concise 1–2 page written summary to reflect interventions that have been comprehensive cancer control coalition include: shown to be effective in similar settings. or partnership. Performance will be G.4.a.(1)(a) Need for comprehensive These requests may include the measured by the extent to which the cancer control planning activities or following types of activities relating to program has used coalitions and implementation activities. colorectal, ovarian, prostate and skin partners, both within (such as Breast G.4.a.(1)(b) Identification of the major cancers: and Cervical Cancer Early Detection activities proposed to develop or Programs and the State or Territorial G.3.a.(3)(a) Establishment or expansion of campaigns, strategies and implement a comprehensive cancer Central Cancer Registry) and outside of prevention and control plan. the organization, in the implementation community-based initiatives to educate priority populations about prevention G.4.a.(1)(c) Requested amount of of the comprehensive cancer control Federal funding. plan and sustained these partnerships as and/or control of these selected cancers. G.3.a.(3)(b) Provider education G.4.a.(1)(d) Applicant’s capability to ongoing entities by such activities as: programs about these cancers or their conduct the comprehensive cancer G.3.a.(2)(c)[1] Organizing and using associated risk factors. control activities. workgroup(s). G.3.a.(3)(c) Implementation of policy G.4.a.(2) Background and Need: G.3.a.(2)(c)[2] Establishing written mandates and environmental changes The applicant should describe: responsibilities (e.g., in a mission important in the prevention and control G.4.a.(2)(a) The cancer disease burden statement or scope of work). of these cancers. for the State/Tribe/Territory, including G.3.a.(2)(c)[3] Establishing written Performance will be measured by the the most recently available age-adjusted, inter-organizational linkages (e.g., a extent to which the program completes overall cancer incidence and mortality Memorandum of Understanding). proposed activities. If all activities are rates by age, gender, and racial and G.3.a.(2)(c)[4] Conducting formal not completed as planned, detail should ethnic groups. Cite the source for and assessment of members’ skills and needs be given on barriers encountered. time period covered by these data. Also for education or training. describe the estimated State/Tribe/ G.3.a.(2)(c)[5] Conducting assessments G.3.b. CDC Activities Territory cancer incidence and mortality of partnership member satisfaction. G.3.b.(1) Assist with the exchange of rates for 2002. G.3.a.(2)(c)[6] Coordinating and information and collaboration among G.4.a.(2)(b) Relevant experiences in working with partners to implement recipients. development and implementation of activities. G.3.b.(2) Provide to recipients cancer prevention and control programs. G.3.a.(2)(d) Conduct systematic relevant, state-of-the-art, research G.4.a.(2)(c) Relevant experiences in evaluation of the cancer control findings and public health coordination and collaboration between prioritization and implementation recommendations related to and among existing programs. process and the program. Evaluate comprehensive cancer control. G.4.a.(2)(d) Existing initiatives, progress in meeting goals, process and G.3.b.(3) Provide ongoing guidance, capacity, and infrastructure (e.g., impact objectives as stated in the work consultation, and technical assistance in coalitions/partnerships; surveillance plan and implementation plan. Develop conducting recipient activities. activities and systems; evaluation objective/quantitative measures of G.3.b.(4) Assist with identifying and activities; information, media and effectiveness that will demonstrate developing national cancer prevention health communications; education and accomplishment of program goals and and control campaigns and materials outreach strategies) within which objectives and measure intended that can be integrated into comprehensive cancer control will outcomes. Performance will be comprehensive cancer control programs. occur. VerDate 11 G.4.a.(2)(e) Description of the need for coordination and cooperation among G.4.a.(6)(a)[1] Include an assessment comprehensive cancer control funding existing categorical program efforts will of the cancer burden across the State/ to enhance existing efforts. be facilitated, while allowing each Tribe/Territory using population-based G.4.a.(3) Collaborative Partnerships program to maintain individual integrity data. and Community Involvement: and identity. G.4.a.(6)(a)[2] Include short-term and The applicant should include: G.4.a.(4)(c) Provide a description of long-term goals, measurable objectives, G.4.a.(3)(a) A description of the the proposed core planning or proposed strategies to address the proposed or existing broad-based State/ implementation team. The core team is cancer burden and evaluation plans. Tribe/Territory-wide partnership that traditionally made up of individuals G.4.a.(6)(a)[3] Be created with diverse will advise and support the program in both within and outside of the health partners, inside and outside of the State/ planning and/or implementing agency that are committed to the Tribe/Territory health department, that comprehensive cancer control activities, development and implementation of the are committed to achieving the goals including a plan for identifying new/ comprehensive cancer plan. and objectives of the plan. additional key members, their charge G.4.a.(4)(d) Provide (in the G.4.a.(6)(a)[4] Address cancer and proposed roles/responsibilities. appendices) curriculum vitae and job prevention, early detection, treatment, G.4.a.(3)(b) A description of evidence descriptions of key staff to be partially rehabilitation, palliation and quality of of a broad and diverse level of support or fully funded through this life. for and commitment to comprehensive announcement, as well as any staff (who G.4.a.(6)(b) Describe the process by cancer control planning or will devote 50 percent or more of their which the plan was developed. If the implementation (e.g., legislation time to this program) to be provided plan is in draft format, describe the supporting cancer prevention and through in-kind support. process for ensuring readiness for control, other sources of funding for G.4.a.(5) Workplan: implementation by November 1, 2002. comprehensive cancer control, The applicant should provide a Include a description of the dedicated comprehensive cancer control detailed work plan that describes how participating organizations’ involvement staff); letters of support (in a separate comprehensive cancer control activities in the development of the plan. Clearly tabbed section of the application) that will be conducted. It should include the describe a mechanism to review, indicate the nature and extent of following: evaluate, and update the plan to meet existing or planned collaborative G.4.a.(5)(a) Goals and objectives for changing needs. support. Year 01. G.4.a.(6)(c) Describe who will be G.4.a.(3)(c) A plan for collaborating G.4.a.(5)(b) Activities planned to responsible for maintaining the with partners on national campaigns or achieve objectives. comprehensive cancer control plan, education efforts. G.4.a.(5)(c) Data that will be used to assuring that the partnership/coalition G.4.a.(4) Management Plan: assess program activities. is involved throughout the process, and The applicant should: G.4.a.(5)(d) Time line for assessing that comprehensive cancer control G.4.a.(4)(a) Submit a management progress. efforts proceed according to the State/ plan that includes a description of G.4.a.(5)(e) The person or persons Tribe/Territory’s plan. Describe how the proposed management structure that responsible for activities. cancer control plan will be addresses the use of qualified and G.4.a.(5)(f) Overall measures of implemented, including the process for diverse technical, program, effectiveness. determining priorities to be addressed administrative staff (including in-kind Applicants are required to provide in implementing the comprehensive staff), organizational relationships (in measures of effectiveness that will cancer control plan, the process for the appendices provide a copy of the demonstrate the accomplishment of the assuring that these decisions are data- organizational chart indicating the various identified objectives of the based or evidence-based and grounded placement of the proposed or existing cooperative agreement. Measures must in sound science, and the role of the program in a department or agency), be objective/quantitative and must coalition and/or collaborators in plan internal and external communication measure the intended outcome. These implementation. Describe existing systems, and a system for sound fiscal measures of effectiveness shall be programs funded by other sources that management. Minimal staffing should submitted with the workplan, as an will be critical to the successful include a program coordinator. element of evaluation. coordination and integration of the Applicant should clearly indicate who Grantees may use the attached proposed comprehensive cancer control is responsible for ensuring that a workplan template to present this effort. comprehensive plan is developed and/ information (Attachment B—Workplan G.4.a.(7) Itemized Budget and or implemented. Template in the appendices). Electronic Justification A detailed budget with G.4.a.(4)(b) Provide a description of copies of the template will be provided supporting justification must be the proposed or existing linkages within when requested from the Program provided and should be related to the State/Tribe/Territory health Consultant listed in Section L ‘‘Where to objectives that are stated in the department (e.g., across risk factors, Obtain Additional Information’’— applicant’s workplan. categorically funded programs, NCCCP Section. Applicants should note the following disciplines) that will support integration G.4.a.(6) Comprehensive Cancer budget-related issues: and coordination within the agency. Control Plan: (for Implementation G.4.a.(7)(a) Indirect Costs: The description of the management Applicants only) If indirect costs are requested, it will structure should include discussion of The applicant should: be necessary to include a copy of your the integration and coordination of risk G.4.a.(6)(a) Submit a copy of the organization’s current negotiated factors and cancer-related programs existing up-to-date State/Tribe/ Federal Indirect Cost Rate Agreement or both within and outside of the funded Territory-wide comprehensive cancer a Cost Allocation Plan for those grantees organization and the integration of these control plan, or an up-to-date draft of a under such a plan. programs in the planning or comprehensive cancer control plan. A G.4.a.(7)(b) Travel: implementation effort. It is important comprehensive cancer control plan Participation in CDC sponsored that the management plan address how should: training workshops and meetings is VerDate 11 essential to the effective implementation A proposed plan for evaluating Funding decisions may be made on of the NCPCP. Travel for program progress toward meeting objectives and the basis of satisfactory progress on the implementation should be justified and assessing impact should be included; Performance Measures noted for each related to implementation activities. objectives should be specific, component as evidenced by required Participation or attendance in non- measurable, action-oriented, realistic, reports (semi-annual report), application CDC sponsored professional meetings and time-phased. score, and the availability of funds. (e.g., ACS, NCI, APHA, other) may be G.4.b.(e) Itemized Budget and Performance measures are listed after requested but must be directly relevant Justification See Section G.4.a.(7) above each Recipient Activity. to workplan activities. Participation for guidance in developing this section G.6. Evaluation Criteria may include the presentation of papers, of the Application. poster sessions or exhibits on the G.5. Other Requirements G.6.a. Evaluation Criteria for NCCCP project. Specific requests should be and NCCCP Optional Additional submitted with appropriate justification. G.5.a. Progress Report (1 of 2) Funding The annual travel budget should In addition to the general guidance G.6.a.(1) Planning Programs: include: provided in Section J—‘‘Other G.6.a.(1)(a) Background and Need (10 G.4.a.(7)(b)[1] Travel funds for two Requirements’’, the first of the two points) staff members to participate in two required progress reports should The extent of need based on disease meetings of NCCCP staff in Atlanta, GA include a description of: burden by age, gender and racial/ethnic for 2–3 days and one meeting of NCCCP G.5.a.(1) Activities accomplished in groups, mortality rates, incidence, staff at a regional location for 2–3 days. the current fiscal year, presented in cancer program experience, existing G.4.a.(7)(b)[2] Funds for two staff relation to what has been proposed and capacity, and infrastructure. members to make two, 2–3 day trips to measured by measures of effectiveness G.6.a.(1)(b) Collaborative Partnerships Atlanta for CDC-sponsored workshops/ included in workplan (may submit and Community Involvement (20 meetings, such as the National either in narrative or work plan or chart points) Conference on Chronic Disease format.) The extent to which the evidence Prevention and Control and the CDC G.5.a.(2) Progress in successfully presented demonstrates the breadth and Cancer Conference. accomplishing recipient activities, as appropriateness of the current or measured by performance measures G.4.b. NCCCP Optional Additional proposed broad-based State/Tribe/ outlined in this program announcement. Territory-wide coalition/partnership to Funding Requests G.5.a.(3) An activity that demonstrates advise and support comprehensive the impact of the comprehensive cancer Applicants requesting cancer control planning activities. implementation funds through this control program. G.5.a.(4) The technical assistance G.6.a.(1)(c) Management Plan (30 Program Announcement have the option points) to submit requests to support colorectal, needs of the cooperative agreement recipient. The feasibility and clarity of the ovarian, prostate, and skin cancer proposed management plan. The extent activities described in their cancer plan. G.5.b. Moving from a Planning Program to which this plan addresses the use of Up to four separate proposals for to an Implementation Program within qualified and diverse staff, describes additional funding (one per specific the five-year Project Period proposed or existing linkages within the cancer area) may be submitted. Each For the NCCCP component, the first of State/Tribe/Territory health department proposal is limited to five pages plus a the two required progress reports may to support integration and coordination, separate budget and narrative be used as evidence of a NCCCP and describes a proposed core planning justification. Planning Program’s attainment of goals team committed to the program. Provide separate proposal(s) for and objectives and the program’s G.6.a.(1)(d) Workplan (40 points) activities described in the readiness to move to an Implementation The extent to which the workplan is Comprehensive Cancer Control Plan Program award should funds be feasible, appropriate, reasonable and addressing colorectal, ovarian, prostate available. In future years, Planning provides a clear description of an or skin cancers (up to four proposals Program grantees wishing to apply for evaluation component. may be submitted, but only one in each an Implementation Program, should G.6.a.(1)(e) Budget with Justification of the four selected cancer areas). For submit an application that: (not scored) each proposal, the following G.5.b.(1) Demonstrates success in The extent to which the proposed information should be submitted: meeting Planning Program Performance budget is adequately justified, G.4.b.(a) Relation to Comprehensive Measures. reasonable, and consistent with this Cancer Control Plan Priority: G.5.b.(2) Fulfills the requirements of program announcement and the Activities proposed for funding the Implementation Program. applicant’s work plan. should relate directly to components of G.5.b.(3) References ‘‘Application G.6.a.(2) Implementation Programs: the Comprehensive Cancer Control Plan Content’’ and ‘‘Recipient Activities’’ G.6.a.(2)(a) Background and Need (10 to be implemented. section of this program announcement points) G.4.b.(b) Evidence-based Activities: including an itemized budget and The extent of need based on disease Proposed activities should be justification. burden by age, gender and racial/ethnic evidence-based; relate to both disease Implementation Program applications groups, mortality rates, incidence, burden and demonstrated need and will be reviewed by CDC staff utilizing cancer program experience, existing deficiencies; and have been shown to be a CDC Internal Review process. capacity, and infrastructure. effective in similar settings. Applications can be submitted in fiscal G.6.a.(2)(b) Collaborative Partnerships G.4.b.(c) Organizational Capability: year 2003, 2004, 2005, or 2006. and Community Involvement (15 The cancer program should document Applications must be submitted (post points) experience, capacity, and infrastructure marked) by February 28 of the fiscal The extent to which the evidence to implement proposed activities. year in which the applicant wishes to be presented demonstrates the breadth and G.4.b.(d) Evaluation: considered for Implementation funding. appropriateness of the current or VerDate 11 proposed broad-based State/Tribe/ G.6.a.(3)(a) Consistent with Priority Program Announcements Numbers Territory-wide coalition/partnership to Area Specified in the Comprehensive 97018 and 96023. It is expected that the advise and support comprehensive Cancer Control Plan (30 points) The average award will be $2,680,000, cancer control implementation extent to which activities proposed in ranging from $200,000 to $7,940,000. activities. the workplan relate to components of Requests for these funds will be G.6.a.(2)(c) Management Plan (20 the Comprehensive Cancer Control Plan competitive. points) to be implemented. H.2.a. Direct Assistance The feasibility and clarity of the G.6.a.(3)(b) Appropriate Activities (30 proposed management plan. The extent points) No new direct assistance funds will to which this plan addresses the use of The extent to which proposed be awarded in lieu of financial qualified and diverse staff, describes activities are evidence-based; relate to assistance to successful NBCCEDP proposed or existing linkages within the disease burden and demonstrated need; component recipients. State/Tribe/Territory health department and have been shown to have been H.2.b. Use of Funds to support integration and coordination, effective in similar settings. H.2.b.(1) 60/40 Requirement: Not less and describes a proposed core G.6.a.(3)(c) Organizational Capability than 60 percent of cooperative implementation team committed to the (10 points) agreement funds must be spent for program. The extent to which the cancer screening, tracking, follow-up and the G.6.a.(2)(d) Workplan (35 points) program has experience, capacity and provision of appropriate individually The extent to which the workplan is infrastructure to implement proposed provided support services. Cooperative feasible, appropriate, reasonable and activities. agreement funds supporting public provides a clear description of an G.6.a.(3)(d) Evaluation (30 points) education and outreach, professional evaluation component. The extent to which the proposed education, quality assurance and G.6.a.(2)(e) Comprehensive Cancer plan for evaluating progress toward improvement, surveillance and program Control Plan (20 points) meeting objectives and assessing impact appears reasonable and feasible; and the evaluation, partnerships, and The quality of the comprehensive management may not exceed 40 percent cancer control plan in terms of an degree to which objectives are specific, measurable, action-oriented, realistic of the approved budget [Section assessment of the cancer burden across 1503(a)(1) and (4) of the PHS Act, as the State/Tribe/Territory; inclusion of and time-phased. G.6.a.(3)(e) Budget with Justification amended]. Further information about short-term and long-term goals, the 60/40 distribution is provided in the measurable objectives, and proposed (not scored) The extent to which the proposed NBCCEDP Policies and Procedure strategies to address both the cancer Manual, Section II, beginning on page burden and evaluation plans; inclusion budget is adequately justified, reasonable, and consistent with this 10. The NBCCEDP Policies and of diverse partners in development and Procedures Manual can be accessed implementation of the cancer plan; and program announcement and the applicant’s work plan. through the Internet at http:// description addressing the full range of www.cdc.gov/cancer/nbccedp or by cancer prevention and control activities G.6.a.(3)(f) Human Subjects Protection (not scored) contacting the program technical (from prevention to quality of life). assistant contact listed in Section J, Applications will also be evaluated on The extent to which the application adequately addresses the requirements Where to Obtain Additional the extent to which the evidence Information. presented indicates that a broad range of of Title 45 CFR Part 46 for the protection of human subjects. H.2.b.(2) Inpatient Hospital Services: partners and stakeholders will be Cooperative agreement funds must not included in reviewing and updating the H. Specific Guidance for the National be spent to provide inpatient hospital or plan as appropriate; mechanisms to Breast and Cervical Cancer Early treatment services [Section 1504(g) of review, evaluate and update the plan to Detection Program (NBCCEDP) the PHS Act, as amended]. Refer to the meet evolving needs, and personnel H.1. Eligible Applicants NBCCEDP Policies and Procedures who will be responsible for maintaining Manual, Section IV, ‘‘Reimbursement the plan, and describes how the cancer Eligible tribal organizations in this Policies for Screening and Diagnostic control plan will be implemented, category are encouraged to collaborate Services,’’ beginning on page 1, for including a description of existing with other tribal organizations in additional information about allowable programs that will be critical to the geographic or cultural proximity to screening and diagnostic services. successful coordination and integration submit one application. Such H.2.b.(3) Administrative Expenses: of the proposed comprehensive cancer collaboration will help to maximize the Not more than 10 percent of the total control effort. number of women potentially eligible funds awarded may be spent annually G.6.a.(2)(f) Budget with Justification for services under this program for administrative expenses. These (not scored) announcement. administrative expenses are in lieu of The extent to which the proposed H.2. Availability of Funds and replace indirect costs [Section budget is adequately justified, 1504(f) of the PHS Act, as amended]. reasonable, and consistent with this Approximately $83,000,000 is Administrative expenses comprise a program announcement and the available to fund 51 existing NBCCEDP portion of the 40 percent component of applicant’s implementation plan. grantees under Program Announcement the budget. G.6.a.(3) (Optional) Additional Numbers 99052 and 01038. It is Activities in Colorectal, Ovarian, expected that the average award will be H.2.c. Recipient Financial Participation Prostate, and Skin Cancer. $1,570,000, ranging from $117,000 to H.2.c.(1) Matching Requirement Optional proposals for additional $6,700,000. Recipient financial participation is funding will be reviewed by an In addition, approximately required for this program in accordance Objective Review Panel. $57,000,000 is available in FY 2002 to with the authorizing legislation. Section The following are criteria to be used fund 20 to 22 new NBCCEDP recipients. 1502(a) and (b)(1), (2), and (3) of the for review of additional proposals: This includes current recipients under PHS Act, as amended, requires VerDate 11 matching funds from non-Federal to tribal organizations that collaborate Information’’. A summary of the sources in an amount not less than one with other tribal organizations in NBCCEDP Program Components and dollar for every three dollars of Federal geographic or cultural proximity for the their minimum core elements can be funds awarded under this program. purpose of maximizing the number of found as Attachment C—NBCCEDP However, Title 48 of the U.S. Code women potentially eligible for services Program Component in the appendices. 1469a(d) requires DHHS to waive under this Program Announcement. Performance will be measured by the matching fund requirements for Guam, extent to which the program meets or U.S. Virgin Islands, American Samoa H.2.e. Funding Consideration exceeds the core elements of each of the and the Commonwealth of the Northern Funding Consideration for the program components. Mariana Islands up to $200,000. NBCCEDP component may be based on: H.3.a.(4) Review progress in meeting Matching funds may be cash, in-kind H.2.e.(1) Total amount of funding objectives and performance measures or donated services or equipment. available to support the NBCCEDP. See with CDC staff during regular Contributions may be made directly or H.2. ‘‘Availability of Funds’’ for this conference calls and/or site visits. through donations from public or information. Evaluate all component activities private entities. Public Law 93–638 H.2.e.(2) The proportion of funds routinely and use results to improve authorizes tribal organizations awarded for NBCCEDP activities that program planning and implementation. contracting under the authority of Title were spent during the budget period, if Performance will be measured by the I to use funds received under the Indian such funds were received in the past. extent to which there is an evaluation Self-Determination Act as matching H.2.e.(3) The appropriate and timely plan for each component and evaluation funds. use of unobligated funds from previous results are used to improve the program. Applicants may also designate as years, if such funds were received in the H.3.a.(5) Attend CDC-sponsored State/Tribe/Territory matching funds past. meetings and training opportunities. any non-Federal amounts spent H.3. Program Requirements for H.3.b. CDC Activities pursuant to Title XIX of the Social NBCCEDP Security Act for the screening, tracking, H.3.b.(1) Provide ongoing guidance, follow-up and case management of In conducting activities to achieve the technical assistance and consultation to women for breast and cervical cancers. purpose of this program, the recipient Grantees to support their planning, Matching funds may not include: (1) will be responsible for conducting the implementation and evaluation of each Payment for treatment services or the activities under H.3.a. (Recipient NBCCEDP program component. donation of treatment services; (2) Activities) and CDC will be responsible Technical assistance from CDC may services assisted or subsidized by the for the activities listed under H.3.b. address: Federal government; or (3) the indirect (CDC Activities). H.3.b.(1)(a) Practical application of Public Law 101–354, including or overhead costs of an organization. H.3.a. Recipient Activities All costs used to satisfy the matching amendments to the law. requirements must be documented by H.3.a.(1) Provide breast and cervical H.3.b.(1)(b) Design and the applicant and will be subject to cancer screening services in a timely implementation of program audit. Specific rules and regulations and appropriate manner to a reasonable components. governing the matching fund number of women (negotiated with CDC H.3.b.(1)(c) Interpretation of current requirement are included in the PHS based upon eligible populations and scientific literature related to the early Grants Policy Statement, Section 6. funds to support clinical services) who detection of breast and cervical cancer. H.3.b.(1)(d) Interpretation of program Matching funds are not subject to the are under-served, low-income and outcome, screening and surveillance 60/40 requirement described above in uninsured, with a focus on women from racial and ethnic minority populations. data. H.2.b(1). For further information about H.3.b.(1)(e) Overall operational the matching fund requirement, see the Performance will be measured by the extent to which the number of eligible planning and program management. NBCCEDP Policies and Procedures H.3.b.(2) Provide relevant public women served and their demographic Manual, Section II, pages 19–21 and health practice recommendations and characteristics is consistent with page 35. occasions for exchange of information projections. H.2.c.(2) Maintenance of Effort: In and collaboration among recipients. determining the matching funds for the H.3.a.(2) Refer women with abnormal NBCCEDP contribution, applicants screening results for diagnostic and H.4. Content should calculate the average amount of treatment services in a timely and Use the information in Sections H.3. non-Federal contributions toward breast appropriate manner. Performance will Program Requirements for NBCCEDP, and cervical cancer programs and be measured by the extent to which data H.4. Content, and H.5 Evaluation activities for the two year period are complete when submitted to CDC Criteria to develop the application preceding the first Federal fiscal year of and the timeliness of diagnostic and content. Your application will be funding for NBCCEDP. This amount is treatment services meets the 60 day evaluated using the criteria listed, so it referred to as Maintenance of Effort standard. is important to follow them in laying (MOE). Only those non-Federal H.3.a.(3) Implement a breast and out your program plan. contributions in excess of the MOE cervical cancer early detection program Applications should not exceed 65 amount may be considered as matching that meets or exceeds expectations in double-spaced pages including budget funds. Supplanting, or replacing, each of the NBCCEDP components. and justification. Appendices (including existing program efforts currently paid Descriptions of the NBCCEDP curriculum vitae, job descriptions, with Federal or non-Federal sources is components, including each organizational charts, and any other not allowable. component’s minimum core supporting documentation) are not expectations, can be accessed through counted in the 65-page limit. H.2.d. Funding Preference the Internet at http://www.cdc.gov/ Funding preference may be given to cancer/nbccedp or the technical H.4.a. NBCCEDP Application Outline applications from currently funded assistance contact listed in Section J, Please provide the following recipients. Preference may also be given ‘‘Where to Obtain Additional information as outlined below. VerDate 11 H.4.a.(1) Capability for Program screening services that impede women be served. Applicants should include a Implementation (Up to 10 pages) in the priority populations from projection of the number of rarely and Applicants should address their participating in breast and cervical never screened women to receive a capability to implement proposed cancer screening and follow-up services. cervical cancer screening examination. activities. Broadly, priority populations can be Applicants are encouraged to present Applicants not currently funded described as women who are racial, screening projections using the should describe experience with other ethnic and/or cultural minorities, such Screening Projections Matrix, screening programs and their results. as American Indians, Alaska Natives, Attachment D—‘‘Screening Projections Describe relationships with key partners African-Americans, Hispanics, Asian Matrix’’ in the appendices. who can recruit clients, affect systems, and Pacific Islanders, lesbians, women The Breast and Cervical Cancer deliver services and support the with disabilities, and women who live Treatment and Prevention Act of 2000 screening program. in geographically or culturally isolated (Public Law 106–354) amends Title XIX H.4.a.(2) Organizational Support (up communities in urban and rural areas. of the Social Security Act to give States to 5 pages) The term priority populations, as the option to provide Medicaid coverage The applicant should provide the defined above, will be used throughout to women who have been screened following information: this document. under the NBCCEDP and found to have H.4.a.(2)(a) A plan for program H.4.a.(3)(c) Regardless of the breast or cervical precancerous management, including an geographic area, priority for breast conditions or cancer. If the applicant organizational chart. Describe those cancer screening should be given to has submitted a request to the Center for positions which have oversight women age 50 to 64 years of age. Medicare and Medicaid Services (CMS) responsibility. Address leadership and Priority for cervical cancer screening under this law and received approval, administrative plans. Discuss strategies should be given to rarely or never complete Attachment E—‘‘The Breast for ensuring appropriate communication screened women, age 18 to 64. and Cervical Cancer Prevention and among key staff on the status of program H.4.a.(4) Workplan (Up to 15 pages) Treatment Act Form’’ in the appendices. implementation, maintenance, and For each program component, a Additional information about this law related issues. detailed workplan and timeline can be obtained from the following web H.4.a.(2)(b) If the applicant has a including evaluation activities to be site: http://www.cdc.gov/cancer/ cancer registry that has achieved accomplished must be submitted for the nbccedp. NAACCR certification, a plan or period September 30, 2002 through June H.4.a.(5) Itemized Budget and description of the current process to 29, 2003. The minimum core Justification (Up to 10 pages) link data elements (e.g., stage, tumor expectations for each program A detailed budget with supporting size, date of treatment initiation) related component should be addressed in the justification must be provided and to cancers diagnosed through the workplan. For descriptions of the should be related to objectives that are program with the comparable NBCCEDP components, see Attachment stated in the applicant’s workplan. information in the cancer registry in C—‘‘NBCCEDP Program Components’’ Applicants should note the following order to verify or correct data. For more in the appendices. The workplan should budget-related issues: information about Cancer Registries see include the following: H.4.a.(5)(a) Travel: http://www.cdc.gov/cancer/npcr, http:// H.4.a.(4)(a) Measurable goals and Participation in CDC sponsored www-seer.ims.nci.nih.gov, and for objectives. training workshops and meetings is NAACCR certification see http:// H.4.a.(4)(b) Activities planned to essential to the effective implementation www.NAACCR.org. achieve objectives. of the NCPCP. Travel for program H.4.a.(2)(c) If the applicant currently H.4.a.(4)(c) Data that will be used to implementation should be justified and has or is applying for comprehensive assess program activities. related to implementation activities. cancer control planning or H.4.a.(4)(d) Timeline for assessing Participation or attendance in non- implementation funds, describe the progress. CDC sponsored professional meetings ways in which the breast and cervical H.4.a.(4)(e) Person or persons (e.g., ACS, NCI, APHA, other) may be cancer screening program will responsible for activities. requested but must be directly relevant contribute to and benefit from activities H.4.a.(4)(f) Overall measures of to workplan activities. Participation related to comprehensive cancer control success/effectiveness. may include the presentation of papers, planning or implementation. Applicants are encouraged to use the poster sessions or exhibits on the H.4.a.(3) Identification of Eligible and NBCCEDP workplan template available project. Specific requests should be Priority Populations (Up to 2 pages) through the Internet at http:// submitted with appropriate justification. The applicant should describe: www.cdc.gov/cancer/nbccedp/training/ The annual travel budget should H.4.a.(3)(a) The number of women index.htm. include: who are at or below 250 percent of the Applicants should include an H.4.a.(5)(a)[1] The Program Director or Federal poverty level and uninsured, by attachment to the workplan with Coordinator to travel to Atlanta, GA to age (18–39; 40–49; 50–64) and racial/ realistic screening projections for fiscal participate in two business meetings of ethnic distribution (use 2000 Census year 2002–2003 that are based on past Program Directors (2–3 days). data, unless it is not available). Note screening performance. Applicants who H.4.a.(5)(a)[2] The Data Manager and that tribes are encouraged to collaborate are not currently funded by CDC for one other person to Atlanta, GA to with other tribes in geographic or breast and cervical cancer screening participate in the Data Manager’s cultural proximity in order to maximize should present data about existing meeting (2–3 days). the number of women potentially programs, if applicable. Screening H.4.a.(5)(a)[3] 3–5 persons to attend eligible for services under this program projections should include the number up to two regional training announcement. of women to be screened by the program opportunities. H.4.a.(3)(b) The priority populations by age, race and ethnicity. If women H.4.a.(5)(a)[4] 3–5 persons to Atlanta, for screening, including supporting data with other characteristics have been GA, as invited by CDC, to report and/or justification for their selection. selected as priority populations, please program implementation progress Describe the specific barriers to estimate the number of these women to (‘‘reverse site visit’’) and for VerDate 11 consultation/technical assistance or to for breast and cervical cancer programs in accordance with guidelines described participate on national work groups/ and activities for the two year period in the interim final rule (42 CFR Parts committees (two days). preceding the first Federal fiscal year of 405 and 534) which implements Section The following additional guidance NBCCEDP funding. 4163 of the Omnibus Budget relates to the NBCCEDP portion only of H.4.a.(7) Letters of Commitment (Up Reconciliation Act of 1990 (Public Law this program announcement. to 10 pages) 101–508) which provides limited Indicate the 60/40 distribution Applicants should include letters of coverage for screening mammography required by presenting the budget in commitment (dated within the last three services. two columns, one containing the 60 months) from key partners, participants, H.4.a.(8)(d) It will assure, in percent allowable items and the other and community leaders that detail their accordance with the applicable law, the containing the 40 percent allowable participation in and support of the quality of screening procedures items. proposed program. If the applicant is a provided. A sample 60/40 budget breakdown Tribe, also include either of the H.4.a.(8)(d)[1] All facilities can be found in the NBCCEDP Policies following documentation, as conducting mammography screening and Procedures Manual, Section II, page appropriate: 1) A signed and dated tribal procedures funded by the Program must 38. For further information about the resolution supporting the application be MQSA certified (Mammography 60/40 requirement, please refer to the from the Indian Tribe served by the Quality Standards Act of 1992). [Section NBCCEDP Policies and Procedures project. If the applicant includes more 1503(c) of the PHS Act, as amended] Manual, Section II, page 10. than one Indian Tribe, resolutions from Additional information about quality The applicant should submit a all Tribes to be served must be included; assurance is included in the NBCCEDP completed Screening and Diagnostic or 2) A letter of support for the Policies and Procedures Manual, Worksheet (Attachment F—‘‘Screening application from the Board of Directors Section II, page 14. and Diagnostic Worksheet’’ in the of an Urban Indian organization(s) or H.4.a.(8)(d)[2] All facilities appendices) which is used to estimate Indian Health organization(s), signed by conducting cervical screening the amount of funding needed to the Board Chairman. procedures funded by the Program must reimburse providers for allowable H.4.a.(8) Compliance with Program be CLIA certified (Clinical Laboratory clinical services provided to eligible Requirements: Improvement Amendments of 1988). women served in your program. Further Requirements and Activities of Public Pathologists participating in the information about the Screening and Law 101–354 and related Amendments program must record their findings Diagnostic Worksheet is provided in the require that funds may not be awarded using the Bethesda System. [Section NBCCEDP Policies and Procedures under this program unless the State, 1503(c) of the PHS Act, as amended] Manual, Section IV, pages 21–25. An Tribe or Territory agrees that: Additional information about quality electronic version of the Screening and H.4.a.(8)(a) Funds will not be spent to assurance is included in the NBCCEDP Diagnostic Worksheet, an EXCEL make payment for any item or service Policies and Procedures Manual, spreadsheet, may be obtained through that will be paid or can reasonably be Section II, page 14. the program technical assistance contact expected to be paid by: H.4.a.(8)(e) Screening and re- listed in Section L. ‘‘Where to Obtain H.4.a.(8)(a)[1] Any State screening procedures are available for Additional Information.’’ compensation program, insurance both breast and cervical cancers and No new direct assistance funds will policy, or Federal or State health include a clinical breast exam, be awarded in lieu of financial benefits program. mammography, pelvic exam and Pap assistance to successful NBCCEDP H.4.a.(8)(a)[2] An entity that provides test. [Section 1503(a)(2)(A) and (B).] component applicants. health services on a prepaid basis. H.4.a.(8)(f) If a new or improved, and H.4.a.(6) Source Data for Matching [Section 1504(d)(1) and (2) of the PHS superior, screening procedure becomes Requirement (up to 1 page) Act, as amended] widely available and is used, this H.4.a.(6)(a) Provide a detailed H.4.a.(8)(b) If charges are to be superior procedure will be utilized in description of the sources of non- imposed on clients for the provision of the program [Section 1503(b) of the PHS Federal matching funds by name and services or program activities, such fees/ Act, as amended]. the estimated amounts from each for the charges for allowable screening and H.4.a.(8)(g) Women served under the forthcoming fiscal year. Applicants are diagnostic evaluation will be: NBCCEDP are those with incomes at or encouraged to use the Sources and H.4.a.(8)(b)[1] Assessed according to a below 250 percent of Federal poverty Projections of Matching Funds schedule of fees made available to the guidelines, who lack insurance coverage worksheet (See Attachment G— public. [Section 1504(b)(1) of the PHS for these services. The official poverty ‘‘Sources and Projections of Matching Act, amended] line is established by the Director of the Funds Worksheet’’ in the appendices). H.4.a.(8)(b)[2] Adjusted to reflect the Office of Management and Budget The applicant should document the income of the woman involved. [Section (OMB) and revised by the Secretary of procedures for determining the value of 1504(b)(2) of the PHS Act, as amended] the Department of Health and Human non-cash matching funds. Describe the H.4.a.(8)(b)[3] Totally waived for any Services (DHHS) in accordance with procedures for documenting the actual woman with an income of less than 100 Section 673(2) of the Omnibus Budget match received. Further information percent of the Federal poverty line. Reconciliation Act of 1991 [Section about the Matching Funds Requirement [Section 1504(b)(3) of the PHS Act, as 1504(a) of the PHS Act, as amended]. can be found in the NBCCEDP Policies amended] Policies related to eligibility for and Procedures Manual, Section II, H.4.a.(8)(c) The schedule of fees/ screening are detailed in the NBCCEDP pages 19–21 and page 35. charges should not exceed the Policies and Procedures Manual, H.4.a.(6)(b) Previously funded maximum allowable charges established Section IV. applicants should provide their by the Medicare Program administered H.4.a.(8)(h) Women screened in the Maintenance of Effort amount. by the Center for Medicare and Program will receive appropriate Applicants not currently funded should Medicaid Services, formerly Health Care referrals for diagnostic services and, to detail the average amount of non- Financing Administration (HCFA). Fee/ the extent practicable, appropriate, Federal dollars spent by the applicant charge schedules should be developed affordable and timely diagnostic and VerDate 11 treatment services. [Section 1501(a)(2) H.5.a.(1)(b) The extent to which reasonableness of the proposed of the PHS Act, as amended] letters of commitment from key timeline, for each of the NBCCEDP H.4.a.(8)(i) Breast and cervical cancer partners, participants, and community program components. screening services are established leaders detail their participation in and H.5.e. Budget with Justification (Not throughout the State, Tribe, or Territory support of the proposed program. Weighted) [Section 1504(c)(1) of the PHS Act, as H.5.a.(1)(c) If the applicant is a Tribe, amended]. Funds may not be awarded the inclusion of a tribal resolution(s) or The extent to which the proposed under this announcement unless the letter of support from the Board of budget is reasonable, justified, State/Tribe/Territory involved agrees Directors. consistent and in compliance with the that services and activities will be made H.5.a.(2) For Applicants Not Currently program requirements. available throughout the State/Tribe/ Funded: H.5.f. Source Data for Matching Territory, including availability to H.5.a.(2)(a) Prior performance, as Requirement (Not Weighted) members of any Indian Tribe or tribal reflected in the discussion of experience organization (as such terms are defined with similar existing programs or The extent to which the applicant in Section 4 of the Indian Self- audiences. describes the sources and amounts of Determination and Education H.5.a.(2)(b) Extent to which letters of matching funds, the methods for Assistance Act). CDC may waive commitment from key partners, determining the value of non-cash [Section 1504(c)(2) of the PHS Act, as participants, and community leaders match, the methods for documenting the amended] this requirement if it is detail their participation in and support match, the Maintenance of Effort determined that compliance by the of the proposed program. amount and, in the case of applicants State/Tribe/Territory would result in an H.5.a.(2)(c) If the applicant is a Tribe, without current funding, the calculation inefficient allocation of resources with the inclusion of a tribal resolution(s) or of MOE. respect to carrying out a breast and letter of support from the Board of H.5.g. Compliance With Program cervical cancer early detection program Directors. Requirements (Not Weighted) [as described in Section 1501(a)]. A request from the recipient outlining H.5.b. Organizational Support (15 A statement is provided indicating the appropriate and detailed justification points) applicant’s understanding and would be required before the waiver is H.5.b.(1) The extent to which the acceptance of its accountability for approved. leadership and administrative plans compliance with program requirements. H.4.a.(8)(j) The amount paid by a presented can reasonably be expected to I. Specific Guidance for the National State/Tribe/Territory for a screening facilitate the achievement of program Program of Cancer Registries (NPCR) procedure will not exceed the amount goals and objectives and the resolution that would be paid under part B of Title of problems. I.1. Eligible Applicants XVIII of the Social Security Act H.5.b.(2) If the applicant has or is The NPCR component of this program (Medicare). [Section 1501(b)(3) of the currently applying for comprehensive announcement incorporates two types PHS Act, as amended] cancer control planning or of eligibility. The first type is Part I— H.4.a.(8)(k) Funds will be used in a implementation funds, the extent to Enhancement. This type of eligibility is cost-effective manner. which there is evidence that the breast defined as a State or territorial health Applicants should include a and cervical cancer screening program’s agency or its designee that is requesting statement that indicates that they have contributions to and benefits from that funds to support and/or enhance an read and understand that they will be activity have been discussed. existing State cancer registry. held accountable for items 8a–8k, and H.5.b.(3) If the applicant has a Cancer The second type of NPCR eligibility is that they will maintain documentation Registry certified by NAACCR, the Part II—Planning. This type of eligibility that would provide proof of compliance existence of a data linkage between the is defined as a State or Territory with a in the event of a program or fiscal audit. NBCCEDP and the cancer registry. limited or no established State cancer In addition, programs must provide registry that is requesting funds to plan the CPT codes and schedule of fees for H.5.c. Identification of Eligible and Priority Populations (15 points) and implement a statewide cancer breast and cervical cancer screening and registry. diagnostic services to be used by the The clarity with which the applicant Eligible applicants may apply for program. In States/Tribes/Territories describes the potentially eligible either Part I (Enhancement) or Part II where there are multiple Medicaid rates population, the depth of discussion of (Planning) but not both. and a single reimbursement rate is the selection and characteristics of the proposed, the applicant must provide priority populations and the extent to I.2. Availability of Funds justification for approval. which program activities have been Approximately $29,500,000 is H.5. NBCCEDP Evaluation Criteria designed to address barriers to care. The available in FY 2002 to fund 49 existing reasonableness of the projected NPCR grantees under Program H.5.a. Capability/Commitment (35 population to be served based on past Announcement 00027. It is expected points) performance and the proposed that the average award will be $649,000, The likelihood that the applicant will recruitment and service delivery system. ranging from $48,000 to $2,400,000. be successful in implementing the In addition, approximately $500,000 H.5.d. Workplan (35 points) proposed activities as measured by: is available in FY 2002 to fund two to H.5.a.(1) For Currently Funded The degree of comprehensiveness and four new NPCR recipients. It is expected Applicants: quality of the workplan as measured by that the average award will be $165,000, H.5.a.(1)(a) Prior performance, as the quality of the objectives, the ranging from $75,000 to $250,000. reflected in the discussion of progress feasibility and likelihood of Based on evidence of meeting or on meeting objectives in the current effectiveness of proposed activities to exceeding performance standards of workplan and achieving the standards attain the objectives, the Planning related activities, and of the NBCCEDP program progress appropriateness of their related availability of funds, recipients of indicators. measures of effectiveness and the Planning funds do not necessarily need VerDate 11 to complete the full five year project contributions toward such costs in an Attachment I—‘‘National Program of period before competing for amount that is not less than 25 percent Cancer Registries Program Standards’’ in Enhancement funds. Unsuccessful of such costs or one dollar for every the appendices. applicants for Enhancement funding three dollars of Federal funds provided I.2.e.(4) The extent to which the under this scenario would continue in the grant. [Section 399H(b)(1) of the cancer registry has been able to utilize with Planning support and would Public Health Service Act] Federal funding, if funding for the continue under their original five year Non-Federal contributions may be in NPCR program has been received in the project period. cash or in kind, fairly evaluated, past. Measurement of this criteria will Competition is limited in accordance including plant, equipment, or services. be evaluated each year by using the with the authorizing legislation, the Amounts provided by the Federal amount of unobligated funds reported Cancer Registries Amendment Act government, or services assisted or on each recipients’ Financial Status (Public Law 102–515; Sections 399H– subsidized to any significant extent by Report for the NPCR component of this 399L of the Public Health Service Act). the Federal government, may not be award. (See Section J.1. ‘‘Technical This legislation was re-authorized as included in determining the amount of Reporting Requirements.’’) This figure part of the Women’s Health Research such non-Federal contributions. will be subtracted from the amount of and Prevention Amendments of 1998 [Section 399H(b)(2)(A) of the Public the initial award to obtain the dollar (Public Law 105–340). Health Service Act] amount spent. The amount spent will be States applying under Part I may be I.2.c.(2) Maintenance of Effort (Part I divided by the amount of the initial eligible to be considered for funds for & Part II Applicants) award to obtain the percentage of the advanced activities if they meet NPCR I.2.c.(2)(a) Recipients of funds must award that was spent. minimum standards or criteria for agree to make available (directly or I.2.e.(5) Total amount available to completeness, timeliness, and quality of through donations from public or fund NPCR. See Section I.2. data. (See Appendix I—National private entities) non-Federal ‘‘Availability of Funds’’ for specific Program of Cancer Registries Program contributions equal to the amount amount. Standards that lists these standards.) expended during the fiscal year I.3. Program Requirements for NPCR preceding the first year of the original I.2.a. Direct Assistance NPCR grant award for the collection of In conducting activities to achieve the Applicants may request Federal data on cancer. purpose of this program, the recipient personnel, as direct assistance, in lieu of I.2.c.(2)(b) In determining the amount will be responsible for conducting the a portion of financial assistance. of non-Federal contributions the activities under I.3.a. (Recipient Requests for new direct-assistance recipient may include only those Activities) and CDC will be responsible should include: contributions that are in excess of the for the activities listed under I.3.b. (CDC I.2.a.(1) Number of assignees amount of contributions made by the Activities). requested. State for collection of data on cancer for I.3.a. Recipient Activities I.2.a.(2) Description of the position the fiscal year preceding the first year of and proposed duties. the original NPCR cooperative I.3.a.(1) Support and enhance (Part I), I.2.a.(3) Ability or inability to hire agreement award. CDC may decrease the or plan, implement, and support (Part II) locally with financial assistance. amount of non-Federal contributions the operation of population-based, I.2.a.(4) Justification for request. required if the State can show that the statewide cancer registries in order to I.2.a.(5) Organizational chart and amount will cause them financial collect data concerning: each form of name of intended supervisor. hardship. [Section 399H(b)(2)(B)] invasive cancer with the exception of I.2.a.(6) Opportunities for training, Details regarding criteria for defining basal cell and squamous cell carcinoma education, and work experiences for ‘‘financial hardship’’ and the process for of the skin and each form of in-situ assignees. deciding eligibility are included in the cancer except for carcinoma in-situ of I.2.a.(7) Description of assignee’s application kit. the cervix uteri. access to computer equipment for Note: Reportable diagnoses include VIN III, communication with CDC (e.g., personal I.2.d. Funding Preference VAIN III, AIN III, juvenile astrocytoma, computer at home, personal computer at Preference may be given to territorial pilocytic astrocytoma, piloid astrocytoma. Performance will be measured by the extent workstation, shared computer at organizations that collaborate with other to which the program complies with CDC’s workstation on site, shared computer at Territories in geographic or cultural standards for data completeness and quality a central office). proximity for the purpose of (See Attachment I—‘‘National Program of I.2.b. Use of Funds maximizing the efficiency of registering Cancer Registries Program Standards’’). cancer incidence cases. Compliance will be determined based on a No limitations are placed on the use measurement of data submitted through the of funds awarded for this component in I.2.e. Funding Consideration NPCR–CSS annual call for data. addition to those that are referenced as Funding consideration for the NPCR Applicants applying for Part I must standard guidance in the ‘‘PHS Grants Part I—Enhancement component may have a central registry at the State level, Policy Statement’’ (Section 7. Costs be based on: continuous and recent data collection Under PHS Grant-Supported Projects/ I.2.e.(1) The geographic size of the efforts, existing core staff, and written Activities). State. central cancer registry operational I.2.e.(2) The number of expected policies and procedures implemented. I.2.c. Recipient Financial Participation incident cases during the funding I.3.a.(2) Collect all required data I.2.c.(1) Matching Requirement (Part I period. items. A complete draft listing of Applicants only) I.2.e.(3) The extent to which data from required and supplementary/ Recipients of funds under Part I must the cancer registry meet the minimum recommended data to be collected or agree, with respect to the costs of the NPCR program standards for derived for invasive and in-situ cancers program, to make available (directly or completeness, timeliness and quality. diagnosed after January 1, 2003, is through donations from public or The NPCR standards by which these supplied in the attachment. These private entities) non-Federal data will be evaluated may be found in requirements will be finalized and VerDate 11 published in Standards for Cancer at CDC prior to the end of the project the cancer registry demonstrates an Registries, Volume II, North American period. ongoing capacity to excel in meeting Association of Central Cancer Registries I.3.a.(7) Submit cancer data to CDC minimum standards. The purpose of (NAACCR), Spring 2002 (NAACCR annually, with the content and format these activities should be to improve record layout version 10). specified by CDC as one of the required either the data or the operations of the Performance will be measured by the reports. (See ‘‘Other Requirements’’ cancer registry system. These activities extent to which: Section.) Performance will be measured may include but are not limited to: I.3.a.(2)(a) The information collected by the extent to which the program has aggressive passive case follow-up; active or derived on cancer cases includes all submitted an analytic data file to CDC case follow-up; needs assessment; data elements currently required by the with individual records containing all geocoding; advanced data security; CDC. requested data elements. implementation of a cancer inquiry I.3.a.(2)(b) The data codes for all I.3.a.(8) Establish or enhance, and response system; receipt of encrypted required and recommended data regularly convene an advisory case reports via the Internet or other elements are consistent with those committee to assist in building source; automated casefinding via currently prescribed by CDC. consensus, cooperation, and planning linkage with pathology reports, disease The listing of required and for the statewide cancer registry. indices, or other data sources in supplementary/recommended data Representation should include key addition to vital records; or linkage with items, and requirements for code sets, organizations and individuals such as the National Death Index for survival may be revised during the project hospital cancer registrars, clinical- analysis; coding of occupation/industry period. Every effort will be made to laboratory personnel, pathologists, and data. Performance will be measured by finalize and disseminate revisions for a clinicians. Applicants should consider the extent to which the program has given diagnosis year no later than April drawing the advisory committee from, documented improvements to cancer 30th of the previous year. or maintaining a close relationship with, registry operations and/or data that are I.3.a.(3) Develop and/or maintain the any existing State cancer control directly associated with the conduct of capability to import and export data in coalition. Performance will be measured the enhanced activity. a standard format specified by CDC, in by the extent to which the program has accordance with Section documented meetings of the advisory I.3.b. CDC Activities 399H(c)(2)(D)(iv) of Public Law 102– committee in their progress reports. I.3.b.(1) Convene a meeting for 515. For cases diagnosed during I.3.a.(9) Produce an annual report of information sharing, problem solving, calendar year 2003, NAACCR record incidence and mortality rates in a timely and training at least annually. layout Version 10 is required. (Some manner, pursuant to Section 399H I.3.b.(2) Provide ongoing consultation data items required for cases diagnosed (c)(2)(C)of Public Law 102–515. and technical assistance for effective on or after January 1, 2003, can only be Performance will be measured by the program planning and management, captured and transmitted using extent to which the program has including, but not limited to, assistance NAACCR record layout Version 10.) The provided for the publication of an in the development of model legislation required format for data import and annual report (hardcopy or electronic) for statewide cancer registries; export may be revised during the project which includes at minimum, age- assistance in establishing a period. Performance will be measured adjusted incidence rates and age- computerized reporting and data by the extent to which the state central adjusted mortality rates for the processing system; assistance in registry uses a standardized, CDC- diagnosis year by sex for selected cancer establishing a system to process source recommended data exchange record sites and, where appropriate, by sex and records from multiple institutions to a layout for the exchange of data. race and ethnicity for selected cancer consolidated record; and assistance in I.3.a.(4) Perform death certificate sites. monitoring completeness, timeliness, linkage and follow-back annually, in I.3.a.(10) Attend CDC-sponsored and quality of data. accordance with NAACCR standards, to meetings and training opportunities. I.3.b.(3) Provide technical assistance obtain information on date of death, I.3.a.(11) Participate and collaborate and possible collaboration in reporting cause of death, and to identify actively in State Comprehensive Cancer of cancer rates and other components of unreported cancer cases. Performance Control planning efforts. Registry data an annual report on cancer occurrence will be measured by the extent to which should be the foundation of all evidence in the State. the program has complied with based planning efforts that are I.3.b.(4) Conduct site visits to assess NAACCR standards. Compliance will be undertaken by NCCCP recipients. program progress and mutually resolve determined based on a measurement of Performance will be measured by the problems, as needed. data submitted through the NPCR–CSS extent to which the program has I.3.b.(5) Receive, assess, enhance, annual call for data. documented in their progress reports, aggregate and disseminate cancer I.3.a.(5) Provide for electronic storage, participation in Comprehensive Cancer incidence data from grantees for to the extent possible, of all source Control efforts. monitoring compliance with the terms records including text and codes. State Central Cancer Registries should and conditions of the cooperative Performance will be measured by the also annually link their files with those agreement and assessment of extent to which the program has of the State’s NBCCEDP. These linkages achievement of NPCR program documented their ability to store can provide an additional source of standards and priorities. required data. casefinding for the central cancer I.3.b.(6) Support quality control audits I.3.a.(6) Participate in an independent registry and are a valuable data quality of State central cancer registries. audit of compliance with NPCR improvement tool for both the registry I.3.b.(7) Collaborate with State health standards as authorized by Section and the NBCCEDP. departments and other national partners 399H(c)(2)(B)of Public Law 102–515, I.3.a.(12) Part I Enhancement to establish standards for data conducted by a CDC-approved Advanced Activities: completeness, timeliness, and quality, organization/entity. Audit results will States applying under Part I and to promote the use of cancer be furnished to CDC. Performance will Enhancement may also conduct registry data to support cancer be measured by receipt of audit results advanced cancer registry activities when prevention and control efforts. VerDate 11 I.4. Content I.4.a.(4)(a) A description of all existing I.4.a.(4)(c)[6] A description of existing Use the information in Sections I.3. and potential hospital and non-hospital staff and sources of funding support Program Requirements for NPCR, I.4. sources of cancer cases including in- (i.e., State, Federal, or in-kind). Content, I.5 Other NPCR Requirements, state and out-of-state facilities and I.4.a.(4)(c)[7] A description of the flow and I.6. Evaluation Criteria to develop health care providers that provide of data through the central cancer the application content. Your cancer screening, diagnosis, or registry, including the database design application will be evaluated using the treatment to State residents. as well as other data processing systems. criteria listed, so it is important to I.4.a.(4)(b) A description of existing This description should include a brief follow them in laying out your program electronic cancer reporting systems to summary of data flow between hospital, plan. the State, including hospital, regional, regional and other tumor registries and Applications should not exceed 50 and other tumor registries. Such the central cancer registry. In addition, double-spaced pages including budget descriptions should include an this description should include steps and justification. Applicants should also assessment of data entry and data such as editing, quality control, submit appendices (including processing procedures and any matching, merging, consolidation, curriculum vitae, job descriptions, problems in reporting data to the central feedback to reporting facilities, and organizational charts, and any other registry. error resolution, etc. supporting documentation), which I.4.a.(4)(c) A description of the I.4.a.(4)(c)[8] Existing uses of cancer should not exceed an additional 20 operations of the central cancer registry registry data. pages. in the State which includes: I.4.a.(4)(c)[9] A brief description of existing registry policies and procedures I.4.a. NPCR Application Outline I.4.a.(4)(c)[1] A listing of data items currently collected. that are written and currently Please provide the following implemented. information as outlined below. I.4.a.(4)(c)[2] An assessment of I.4.a.(4)(c)[10] A description of I.4.a.(1) Certifications: completeness of cancer reporting by educational and training activities Non-State public health agency year of diagnosis for 1995 and forward, undertaken by central registry staff for applicants for Part I or Part II must or NPCR reference year and forward, as both central registry and reporting provide certification by the State applicable. A description of the method facilities staff. The description should designating the institution as the State’s used to estimate the expected number of include how educational priorities are official applicant (Sec. 399H(a) and Sec. cases and a description of the method identified and how they relate to 399I(a)(2) of the Public Health Service for determining the completeness of information obtained from quality Act, respectively). reporting ( e.g., the NAACCR method, control activities. I.4.a.(2) Assurances: which is used for registry certification I.4.a.(4)(d) In an appendix, provide Recipients of funds must provide, as and is based on incidence-to-mortality the most recent annual report of cancer part of their application, assurances that rate ratios) should be provided. incidence and mortality data. In the they will provide for the authorization I.4.a.(4)(c)[3] An assessment of absence of a published annual report, under State law of the statewide cancer timeliness of case reporting, including a provide a description of existing cancer registry, including the promulgation of description of the method used to data in the State, including, but not regulations as required by Public Law measure timeliness (for example, a limited to, age-adjusted incidence/ 102–515; Section 399H(c)(2)(D) of the direct measurement from date of mortality rates for cancer for the most Public Health Service Act and Sections diagnosis or date of first contact to date recent year available; a discussion of 399H(c)(1) and (2) of the Public Health case report received; or, an indirect limitations, including the lack of Service Act. Continued funding will be measurement based on the availability of cancer rates; contingent on the enactment of completeness tables provided to CDC incompleteness of case ascertainment of authorizing State legislation and each quarter for applicants currently all or certain cancer sites; and any promulgation of all required State funded by NPCR.) difficulties identifying race/ethnicity. regulations. Applicants for Part I or Part I.4.a.(4)(c)[4] An assessment of the I.4.a.(4)(e) A description of legislation II must provide a properly signed quality of data for diagnosis years 1995 Assurance Form in accordance with and regulations in place, pending through 2001 and a description of the legislation, or progress toward Section 399H(c)1 and 2. An Assurance method for measuring specific quality Form is provided in the application introducing legislation that legally indicators. Indicators may include, but supports the existence and operation of package. are not limited to, the following: The I.4.a.(3) Declaration of Federal a State central cancer registry. This percent of data items coded as either Assistance Requested: should include a letter from the Provide a brief summary, one unknown or missing for select variables, applicant’s State Attorney General or paragraph only, of the type of Federal for example, age at diagnosis, sex, race, highest ranking State Legal Officer assistance requested: Part I, State and county; the percent of cases describing to what extent the applicant Enhancement of an existing statewide which were Death Certificate Only; the is in compliance with Section cancer registry, including any requests number of duplicate records per 1000; 399H(c)(2)(D) of the Public Health for funds for advanced activities, if and the percent of cases passing EDITS Service Act which requires the applicable; or, Part II, Planning and using, for example, NAACCRs’ metafile authorization under State law of the Implementation of a statewide cancer (CINA EDITS). statewide cancer registry. The letter registry. I.4.a.(4)(c)[5] A description of on- should also document the extent to I.4.a.(4) Existing Resources and Needs going quality assurance procedures in which the State has promulgated Assessment: place for data quality, including but not regulations to support all eight criteria Applicants for Part I or Part II: limited to, case-finding and re- specified in Section 399H(c)(2)(D) of the Describe the current activities of, and abstracting audits, visual editing, and Public Health Service Act; any existing limitations to, the types of computerized edits; and a I.4.a.(4)(f) A description of central statewide, population-based, cancer description of any problems with cancer registry computer hardware and registry including: quality control. software to include: VerDate 11 I.4.a.(4)(f)[1] Existing computer State and agencies relevant to cancer The workplan should include the equipment for central registry registries or cancer surveillance: following: operations as well as regional registry I.4.a.(6)(a) An advisory committee to I.4.a.(9)(a) Goals and objectives for operations, if applicable. assist in building consensus, Year 01. I.4.a.(4)(f)[2] An assessment of the cooperation, and planning for the I.4.a.(9)(b) Activities planned to central cancer registry software system statewide cancer registry. achieve objectives. including strengths and limitations of I.4.a.(6)(b) Within the State such as I.4.a.(9)(c) Data that will be used to the system and how it is meeting Vital Statistics Office, State cancer assess program activities. functional requirements of a system as prevention and control program(s), I.4.a.(9)(d) Timeline for assessing specified in the NAACCR Standard universities, the health care community, progress. Volume III, Standards for Completeness, hospital associations, and professional I.4.a.(9)(e) The person or persons Quality, Analysis, and Management of and voluntary associations. responsible for activities. Data. I.4.a.(6)(c) With other States or I.4.a.(9)(f) Overall measures of I.4.a.(4)(f)[3] Report-generating national organizations, such as sharing success. capacity of current software package(s) of case data reciprocal agreements and I.4.a.(9)(g) A plan for program needed for management reports, annual actual sharing of case data. management, including an reports, special studies, and potential I.4.a.(6)(d) With Federally-funded organizational chart. Describe those cancer cluster investigations. programs such as the National Breast positions which have oversight I.4.a.(4)(f)[4] Procedures for receiving, and Cervical Cancer Early Detection responsibility. Address leadership and matching, and merging data from Program; Department of Veterans administrative plans. Discuss strategies various reporting sites (or facilities), Affairs; Military and Armed Forces for ensuring appropriate communication including a description of the type of facilities; the National Cancer Institute’s among key staff on the status of program matching system (e.g., deterministic or Surveillance, Epidemiology, and End implementation, maintenance, and probabilistic). Results Program; and Native American related issues; and I.4.a.(9)(h) Any new or significantly I.4.a.(4)(f)[5] Procedures for Health Boards/Tribal Organizations/ revised items or information (objectives, transmitting data to other central cancer Indian Health Service in States with scope of activities, operational methods, registries and a description of the Native American populations. evaluation, key personnel, workplan, barriers of electronic exchange. I.4.a.(6)(e) Identify and describe any proposed new collaborative etc.) not included in any previous I.4.a.(4)(f)[6] Procedures for matching relationships that would enhance applications. registry cases with deaths in the State registry performance. I.4.a.(9)(i) The following components mortality database and processing cases I.4.a.(7) Operational Plan: Applicants should also be addressed in the work for death certificate follow-back. Also for Part I: plan. describe any procedures to match with Describe in detail the objectives for I.4.a.(9)(i)[1] A plan for achieving all the National Death Index (NDI). the proposed enhancements to the program objectives summarized in I.4.a.(4)(f)[7] Procedures for matching existing State cancer registry. These Attachment I ‘‘NPCR Objectives and registry cases with geographic objectives should relate directly to the Detailed Standards’’ (e.g. legislation and information systems to identify the ‘‘Recipient Activities’’ listed under regulations, uniform data elements, corresponding census tract information. ‘‘Program Requirements’’ and Program completeness of reporting, timeliness of I.4.a.(4)(f)[8] Procedures for Assurances listed under ‘‘Other reporting, etc). If appropriate, the plan production of an electronic annual Requirements’’ in Section I of this may include improving the report and/or a Web-based query system Announcement. The applicant should completeness or quality of past years’ of a public use data file. describe the specific outcome and data for one or more diagnosis years I.4.a.(5) Management and Staffing process objectives to directly address beginning with the registry’s NPCR Plan: Applicants for Part I or Part II: and resolve the needs identified in the reference year through the 1999 Describe how the program will be section entitled, ‘‘Existing Resources diagnosis year. effectively managed including: and Needs Assessment.’’ A projected I.4.a.(9)(i)[2] A plan for data use, I.4.a.(5)(a) Management structure, timetable for program implementation analysis, and dissemination (only from including the lines of authority and and evaluation should be included that recipients who have achieved NPCR plans for fiscal control. displays dates for the accomplishment standards for completeness, timeliness, I.4.a.(5)(b) The staff positions of specific proposed activities. and quality). responsible for implementation of the I.4.a.(8) Data Utilization: I.4.a.(10) Itemized Budget and program. Applicants for Part I or Part II: Justification: I.4.a.(5)(c) Qualifications of the Delineate a plan for the use of cancer A detailed budget with supporting designated or proposed management registry data for cancer prevention and justification must be provided and and technical staff. control within the State. Examples should be related to objectives that are I.4.a.(5)(d) A brief description of the might include, but not be limited to: stated in the applicant’s workplan. training needs/plan for the staff. A copy detailed incidence/mortality estimates; Applicants should note the following of the organizational chart indicating linkage with a statewide cancer budget related issues: the placement of the proposed program, screening program to improve follow-up I.4.a.(10)(a) Indirect Costs: abbreviated (one page) resumes for of screened patients; health-event If indirect costs are requested, it will designated staff, and job descriptions for investigations; needs assessment/ be necessary to include a copy of your the proposed staff should be included in program planning; program evaluation; organization’s current negotiated the application as an appendix. and/or descriptive epidemiologic Federal Indirect Cost Rate Agreement or I.4.a.(6) Collaborative Relationships: studies. a Cost Allocation Plan for those grantees Applicants for Part I and Part II: I.4.a.(9) Workplan: under such a plan. Describe, and provide evidence of (or A Year 01 detailed workplan and I.4.a.(10)(b) Travel: for Part II, describe plans for), timeline, including evaluation activities Participation in CDC sponsored collaborative relationships between the to be accomplished must be submitted. training workshops and meetings is VerDate 11 essential to the effective implementation I.5. Other NPCR Requirements measures are listed after each Recipient of the NCPCP. Travel for program Activity. I.5.a. Technical Reporting Requirments implementation should be justified and I.6. NPCR Evaluation Criteria for both related to implementation activities. In addition to the general reporting Planning and Enhancement Programs Participation or attendance in non- requirements that apply to all CDC sponsored professional meetings components (Please refer to Section I.6.(a) Resources and Needs Assessment (e.g., ACS, NCI, APHA, other) may be J.1.—‘‘Technical Reporting (25 points) requested but must be directly relevant Requirements’’.) the following The extent to which the applicant to workplan activities. Participation additional Reporting Requirements describes current activities and existing may include the presentation of papers, apply to the NPCR component only of strengths and limitations of the state- poster sessions or exhibits on the this program announcement. level cancer registry, and provides the I.5.a.(1) NPCR Call for Data: project. Specific requests should be following: The first submission will be due in submitted with appropriate justification. (a) A description of all existing and January of each year in the form of a potential sources of cancer cases; The annual travel budget should Call for Data. Grantees will report a include: (b) a description of existing subset of the Required and computerized cancer reporting systems I.4.a.(10)(b)[1] Travel funds for up to Recommended data items to CDC two persons to Atlanta, GA to attend the in the State; annually as one of the progress reports. (c) a description of centralized cancer CDC Program Director’s Meeting. Cumulative data will be requested, from reporting in the State including a listing I.4.a.(10)(b)[2] Travel funds to attend the reference year to 12 months past the of data items currently collected; an national cancer registry meetings and close of the diagnosis year. Detailed assessment of data completeness, applicable workshops. reporting instructions will follow. timeliness and quality; a description of I.4.a.(10)(b)[3] Travel funds for up to Annual program evaluation data should ongoing quality assurance procedures two persons to Atlanta, GA to make one, also be submitted at this time. for data quality; a description of existing two-day trip to Atlanta for a reverse site I.5.a.(2) Moving from a Planning staff, qualifications, and source of visit. Program to an Enhancement Program funding; a description of the flow of The following additional guidance within the five year Project Period. data through the central cancer registry; relates to the NPCR portion only of this For NPCR specifically, the first of the a description of existing uses of cancer program announcement. two required progress reports may be registry data; a description of existing used as evidence of NPCR’s Planning I.4.a.(10)(c) Financial Participation: registry policies and procedures that are Program’s attainment of goals and The level of financial participation by written and implemented; a description objectives and the program’s readiness of educational and training activities the applicant should also be reflected in to move to an Enhancement Program this section as it relates to: undertaken by central registry staff for award should funds be available. In central registry and reporting facilities I.4.a.(10)(c)[1] Maintenance of Effort: future years, Planning Program grantees staff; a copy of the most recent annual Applicants for Part I or Part II: wishing to apply for an Enhancement report of cancer incidence and mortality Identify and describe the amount of Program, should submit an application data or a description of existing cancer contributions expended during the that: data in the State; a description of fiscal year preceding the first year of the I.5.a.(2)(a) Demonstrates success in ‘‘enabling’’ State legislation and original NPCR cooperative agreement meeting Planning Program objectives to regulations including a copy of the State for the collection of data on cancer. The plan, implement, and support the Attorney General’s (or highest ranking amount of contributions will be used to operation of a population-based State Legal Officer’s) letter of establish a baseline for current and statewide cancer registry. assessment; and a description of future maintenance of effort I.5.a.(2)(b) References ‘‘Application existing computer hardware and requirements. [Section 399H(b)] Content’’ and ‘‘Recipient Activities’’ software. I.4.a.(10)(c)[2] Matching Funds: sections of this program announcement Applications for Part I ONLY: including a line item budget and budget I.6.(b) Collaboration (10 points) Identify and describe: justification. See Section I.4.a.(10) The extent to which the applicant ‘‘Itemized Budget and Justification’’ for I.4.a.(10)(c)[2][a] State sources of describes a current or proposed advisory general guidance in developing this allowable matching funds for the committee and describes past, current, section of the Application. See also program and the estimated amounts and proposed collaboration with the Section I.4.a.(10)(c) ‘‘Financial from each source. The total amount of relevant organizations and agencies Participation’’ for additional guidance the non-Federal contributions shall be within the State; with other States or that is specific to the NPCR component. an amount that is not less than 25 national organizations; with Federally- Enhancement Program applications percent of the total cost of the program funded health care programs such as the will be reviewed by CDC staff utilizing including the match or one dollar for National Breast and Cervical Cancer an Internal CDC Review process. every three dollars of Federal funds Early Detection Program, Department of Applications can be submitted in fiscal provided in the grant. [Section 399H(b)] Veterans Affairs, Military and Armed year 2003, 2004, 2005, or 2006. Forces Facilities, the National Cancer I.4.a.(10)(c)[2][b] Procedures for Applications must be submitted (post Institute’s Surveillance, Epidemiology, documenting the value of non-cash marked) by February 28 of the fiscal and End Results Program, and Native matching funds. year in which the applicant wishes to be American Health Boards/Tribal I.4.a.(11) Appendices: considered for Implementation funding. organizations/Indian Health Service in The appendices should include new Funding decisions may be made on States with Native American personnel, vacant positions (note the the basis of satisfactory progress on the populations. duration), health department leadership Performance Measures noted for each and organizational changes impacting component as evidenced by required I.6.(c) Proposed Objectives (20 points) on the program, and legislative impacts reports, application score, and the The extent to which objectives are on the program. availability of funds. Performance specific, measurable, time-phased, and VerDate 11 realistic; provide for outcome and J.1.a.(1) A workplan with new AR–10—Smoke-Free Workplace process objectives which meet the objectives for the following budget Requirements requirements of Public Law 102–515; period. AR–11—Healthy People 2010 and are derived from needs identified in J.1.a.(2) A one year line item budget AR–12—Lobbying Restrictions the resources and needs assessment. and justification for the same 12 month The following additional period. requirements are applicable to the I.6.(d) Proposed Implementation Plan J.1.a.(3) A hard copy of the State’s specific components under which they and Schedule (20 points) most recent annual report on cancer are listed. The extent to which the major steps incidence. required for project implementation J.1.a.(4) Additional component J.2.(a) Additional Requirements for adequately address the needs specific information. NCCCP assessment, are realistically described, J.1.a.(4)(a) NCCCP: AR–8—Public Health System and the project timetable displays See ‘‘Section G.5. Other Reporting Requirements appropriate dates for the Requirements’’ for specific Guidance on the content of this progress report and J.2.(b) Additional Requirements for accomplishment of specific project NBCCEDP: activities. how Planning Program recipients may apply for Implementation Program AR–1—Human Subjects Requirement I.6.(e) Data Utilization (10 points) funds in future years. AR–2 Requirements for Inclusion of The extent to which the applicant J.1.a.(4)(b) NBCCEDP: Women and Racial and Ethnic provides a relevant and realistic plan to There is no additional specific Minorities in Research use cancer registry data within the State information for this component. J.2.(c) Additional Requirements for J.1.a.(4)(b) NPCR: for cancer prevention and control. The NPCR applicant should also address the extent See ‘‘Section I.5. Other Requirements’’ to which they have plans for production for specific guidance on how Planning AR— Human Subjects Requirements AR—2 Requirements for Inclusion of of an electronic annual report and/or a Program recipients may apply for Women and Racial and Ethnic Web-based query system of a public use Enhancement Program funds in future Minorities in Research data file. years. AR–21—National Program of Cancer I.6.(f) Project Management and Staffing J.1.b. Progress Report (2 of 2) Registries Program Standards Plan (15 points) The second submission will be due AR–22—Required Status Table The extent to which proposed July 31 of each year in the form of a K. Authority and Catalog of Federal staffing, organizational structure, staff progress report addressing progress Domestic Assistance Number toward achieving objectives detailed in experience and background, identified K.1. NCCCP training needs or plan, and job the application during the time period descriptions and curricula vitae for both from February 1 through June 30 (5 This program is authorized under proposed and current staff indicate months). section 317(k)(2) of the Public Health ability to carry out the purposes of the All manuscripts published as a result Service Act, [42 U.S.C. section 247b program. of the work supported in part or whole (k)(2)], as amended. The Catalog of by the cooperative agreement, should be Federal Domestic Assistance number is I.6.(g) Budget (Not Scored) submitted with the progress report. 93.283. The extent to which the applicant J.1.c. Financial Status Report K.2. NBCCEDP provides a detailed budget and Due no more than 90 days after the justification consistent with the stated This program is authorized under end of the budget period with objectives and program activities. sections 1501–1510 [42 U.S.C. 300k, 42 unobligated funds tracked separately by U.S.C. 3001, 42 U.S.C. 300m, 42 U.S.C. J. Other Requirements component (NCCCP, NBCCEDP, and 300n, 42 U.S.C. 300 n–1, 42 U.S.C. 300 NPCR). J.1. Technical Reporting Requirements n–2, 42 U.S.C. 300 n–3, 42 U.S.C. 300 n–4, 42 U.S.C. 300 n–4a, 42 U.S.C. 300 All of the following reporting J.1.d. Final Financial and Performance Reports n–5] of the Public Health Service Act, as requirements to be submitted to CDC amended. The Catalog of Federal should include an original and two Due no more than 90 days after the Domestic Assistance number is 93.919. copies of: end of the project period. Send all reports to the Grants K.3. NPCR J.1.a. Progress Report (1 of 2) Management Specialist identified in the This program is authorized under The first submission will be due ‘‘Where to Obtain Additional sections 399H–399L of the Public February 28 of each year in the form of Information’’ section of this Health Service Act, [42 U.S.C. sections a progress report that succinctly announcement. 280e–280e–4; Public Law 102–515], as describes progress for the period J.2. Additional Requirements for all amended. This program was re- September 30, 2002 thru January 31, components authorized as part of the Women’s 2003 (for the first budget period) in Health Research and Prevention meeting stated objectives. In future The following additional Amendments of 1998, Public Law 105– years, submission of this report should requirements are applicable to this 340. The Catalog of Federal Domestic cover the period June 30–January 31 (of program. For a complete description of Assistance number is 93.283. each year). If program objectives were each, see the ‘‘Additional not met, provide an explanation and Requirements’’ attachment in the L. Where To Obtain Additional steps to be taken to meet the objectives. application kit. Information This report will also serve as a AR–7—Executive Order 12372 Review This and other CDC announcements continuation application and should AR–9—Paperwork Reduction Act can be found on the CDC home page include: Requirements Internet address—http://www.cdc.gov VerDate 11 Click on ‘‘Funding’’ then ‘‘Grants and For program technical assistance, Telephone number: 770–488–4880. E- Cooperative Agreements.’’ contact: mail address: [email protected]. If you have questions after reviewing NCCCP: Leslie S. Given, MPA, NCCCP NPCR: Leah Simpson, Program the contents of all the documents, Unit, Program Services Branch, Division Analyst, Cancer Surveillance Branch, business management technical of Cancer Prevention and Control, Division of Cancer Prevention and assistance may be obtained from: Annie National Center for Chronic Disease Control, National Center for Chronic Camacho or Glynnis Taylor, Grants Prevention and Health Promotion, Disease Prevention and Health Management Specialist, Grants Centers for Disease Control and Promotion, Centers for Disease Control Management Branch, Procurement and Prevention, 4770 Buford Hwy., NE (MS and Prevention, 4770 Buford Hwy., NE Grants Office, Centers for Disease K–57), Atlanta, GA 30341–3717. (MS K–53), Atlanta, GA 30341–3717. Control and Prevention, 2920 Telephone number: 770–488–3099. E- Telephone number: 770–488–4158. E- Brandywine Road, Room 3000, Atlanta, mail address: [email protected]. mail address: [email protected]. NBCCEDP: Susan True, M.Ed., Branch GA 30341–4146. Chief, Program Services Branch, Dated: April 16, 2002. Telephone number: Annie Camacho: Division of Cancer Prevention and Edward J. Schultz, 770–488–2735, Glynnis Taylor: 770– Control, National Center for Chronic Acting Director, Procurement and Grants 488–2752. Disease Prevention and Health Office, Centers for Disease Control and E-mail address: Annie Camacho: Promotion, Centers for Disease Control Prevention. [email protected], Glynnis Taylor: and Prevention, 4770 Buford Hwy., NE [FR Doc. 02–9724 Filed 4–22–02; 8:45 am] [email protected]. (MS K–57), Atlanta, GA 30341–3717. BILLING CODE 4163–18–P VerDate 11 Part VIII Department of Defense General Services Administration National Aeronautics and Space Administration 48 CFR Parts 16, 22, et al. Federal Acquisition Regulation; Compensation Cost Principle; Proposed Rule VerDate 11 DEPARTMENT OF DEFENSE 1. Adding a definition for submit such comments separately and ‘‘compensation for personal services’’ at should cite 5 U.S.C. 601, et seq. (FAR GENERAL SERVICES FAR 31.001, Definitions; case 2001–008), in correspondence. ADMINISTRATION 2. Removing as unnecessary the listing of examples of specific types of C. Paperwork Reduction Act NATIONAL AERONAUTICS AND compensation currently located at FAR The Paperwork Reduction Act does SPACE ADMINISTRATION 31.205–6(a); not apply because the proposed changes 3. Clarifying and moving the current to the FAR do not impose information 48 CFR Parts 16, 22, 31, 37, and 52 FAR 31.205-6(b)(2)(i) to a new collection requirements that require the paragraph FAR 31.205–6(a)(6), and approval of the Office of Management [FAR Case 2001–008] expanding the new paragraph to cover and Budget under 44 U.S.C. 3501, et RIN 9000–AJ36 members of ‘‘limited liabilities seq. companies’’ since their compensation List of Subjects in 48 CFR Parts 16, 22, Federal Acquisition Regulation; also requires special consideration; Compensation Cost Principle 4. Revising paragraph (b) to 31, 37, and 52 Government procurement. AGENCIES: Department of Defense (DoD), consolidate all reasonableness General Services Administration (GSA), provisions, including those dealing with Dated: April 16, 2002. and National Aeronautics and Space labor-management agreements that are Al Matera, Administration (NASA). currently addressed at FAR 31.205–6(c); Director, Acquisition Policy Division. 5. Deleting the language that places Therefore, DoD, GSA, and NASA ACTION: Proposed rule. the burden of demonstrating propose amending 48 CFR parts 16, 22, reasonableness on the contractor, SUMMARY: The Civilian Agency 31, 37, and 52 as set forth below: currently found in FAR 31.205–6(b)(1) Acquisition Council and the Defense 1. The authority citation for 48 CFR because it is redundant of language Acquisition Regulations Council parts 16, 22, 31, 37, and 52 continues to currently found in FAR 31.201–3(a). By (Councils) are proposing to amend the read as follows: Federal Acquisition Regulation (FAR) to removing this language, the Councils are not intending to imply that this burden Authority: 40 U.S.C. 486(c); 10 U.S.C. revise the ‘‘compensation for personal chapter 137; and 42 U.S.C. 2473(c). services’’ cost principle. has shifted to the Government; 6. Rewriting paragraph (h), as new DATES: Interested parties should submit PART 16—TYPES OF CONTRACTS paragraph (g), entitled ‘‘Backpay’’ to comments in writing on or before June improve its clarity, without changing its 24, 2002 to be considered in the 16.203–4 [Amended] meaning, and to emphasize that backpay formulation of a final rule. 2. Amend section 16.203–4 in for underpaid work is the only paragraph (c)(4)(ii) by removing ADDRESSES: Submit written comments allowable retroactive adjustment, except to: General Services Administration, ‘‘31.205–6(m)’’ and adding ‘‘31.205– as may be specifically listed in the 6(l)’’ in its place. FAR Secretariat (MVP), 1800 F Street, paragraph; and NW, Room 4035, ATTN: Laurie Duarte, 7. Making other changes to clarify, PART 22—APPLICATION OF LABOR Washington, DC 20405. improve the structure, and remove LAWS TO GOVERNMENT Submit electronic comments via the redundancies throughout the cost ACQUISITIONS Internet to: farcase.2001–[email protected] principle. Please submit comments only and cite This is not a significant regulatory 22.101–2 [Amended] FAR case 2001–008 in all action and, therefore, was not subject to 3. Amend section 22.101–2 in the last correspondence related to this case. review under Section 6(b) of Executive sentence of paragraph (a) by removing FOR FURTHER INFORMATION CONTACT: The Order 12866, Regulatory Planning and ‘‘31.205–6(c)’’ and adding ‘‘31.205–6(b)’’ FAR Secretariat, Room 4035, GS Review, dated September 30, 1993. This in its place. Building, Washington, DC, 20405, at rule is not a major rule under 5 U.S.C. (202) 804. PART 31—CONTRACT COST 501–4755 for information pertaining PRINCIPLES AND PROCEDURES B. Regulatory Flexibility Act to status or publication schedules. For 4. Amend section 31.001 by adding, The Councils do not expect this clarification of content, contact Mr. in alphabetical order, the definition proposed rule to have a significant Jeremy Olson at (202) 501–3221. Please ‘‘Compensation for personal services’’ to economic impact on a substantial cite FAR case 2001–008. read as follows: SUPPLEMENTARY INFORMATION: number of small entities within the meaning of the Regulatory Flexibility 31.001 Definitions. A. Background Act, 5 U.S.C. 601, et seq., because most * * * * * The Councils performed an analysis contracts awarded to small entities use Compensation for personal services of the cost principle at FAR 31.205–6, simplified acquisition procedures or are means all remuneration paid currently Compensation for personal services. awarded on a competitive, fixed-price or accrued, in whatever form and This analysis excluded a review of the basis and do not require application of whether paid immediately or deferred, paragraphs of the cost principle the cost principle discussed in this rule. for services rendered by employees to addressing pension costs (paragraph (j)), An Initial Regulatory Flexibility the contractor. deferred compensation other than Analysis has, therefore, not been * * * * * pensions (paragraph (k)), and performed. We invite comments from postretirement benefits other than small businesses and other interested 31.201–5 [Amended] pensions (paragraph (o)), which the parties. The Councils will consider 5. Amend section 31.201–5 in the last Councils are planning to review at a comments from small entities sentence by removing ‘‘31.205–6(j)(4)’’ later date under a separate FAR case. concerning the affected FAR parts 16, and adding ‘‘31.205–6(i)(4)’’ in its place. Specifically, the proposed rule revises 22, 31, 37, and 52 in accordance with 6. Amend section 31.205–6 by— FAR 31.205–6 by— 5 U.S.C. 610. Interested parties must a. Revising paragraphs (a) and (b); VerDate 11 b. Removing paragraph (c); wages (but see paragraphs (f), (g), (i), (j), recurrent use of overtime) is c. Redesignating paragraphs (d) (l), and (n) of this subsection). unwarranted when applied to a through (p) as paragraphs (c) through (2) The total compensation for Government contract involving (o), respectively; individual employees or job classes of significantly different circumstances d. Revising newly designated employees must be reasonable for the and conditions of employment (e.g., paragraphs (c) through (g); work performed; however, specific work involving less hazardous activities e. Removing from newly designated restrictions on individual compensation or work continually requiring use of paragraph (h)(3) ‘‘paragraph (i)’’ and elements apply when prescribed. overtime). It is discriminatory against adding ‘‘paragraph (h)’’ in its place; (3) The compensation must be based the Government if it results in employee f. Removing from the last sentence of upon and conform to the terms and compensation (in whatever form or newly designated paragraph (i)(2) conditions of the contractor’s name) in excess of that being paid for introductory text the words ‘‘(j)(2)(i) and established compensation plan or similar non-Government work under (j)(3)’’ and adding ‘‘(i)(2)(i) and in practice followed so consistently as to comparable circumstances. paragraphs (i)(3)’’ in its place; removing imply, in effect, an agreement to make (2) Compensation not covered by from paragraph (i)(2)(iii) ‘‘(j)(7)’’ and the payment. labor-management agreements. adding ‘‘(i)(7)’’ in its place; removing (4) No presumption of allowability Compensation for each employee or job from the second sentence of paragraph will exist where the contractor class of employees must be reasonable (i)(3)(v) introductory text ‘‘(j)(4)’’ and introduces major revisions of existing for the work performed. Compensation adding ‘‘(i)(4)’’ in its place; removing compensation plans or new plans and is reasonable if the aggregate of each from the last sentence of paragraph the contractor has not provided the measurable and allowable element sums (i)(4)(ii) ‘‘paragraph (j)(4)(ii)’’ and cognizant ACO, either before to a reasonable total. In determining the adding ‘‘paragraph (i)(4)(ii)’’ in its place; implementation or within a reasonable reasonableness of total compensation, removing from the last sentence of period after it, an opportunity to review consider only allowable individual paragraph (i)(5) introductory text the allowability of the changes. elements of compensation. In addition (5) Costs that are unallowable under ‘‘(j)(1)’’ and adding ‘‘(i)(1)’’ in its place; to the provisions of 31.201–3, in testing other paragraphs of this Subpart 31.2 are removing from paragraph (i)(5)(ii) the reasonableness of compensation for not allowable under this subsection ‘‘(j)(3)(ii)’’ and adding ‘‘(i)(3)(ii)’’ in its particular employees or job classes of 31.205–6 solely on the basis that they place; removing from the last sentence employees, consider factors determined constitute compensation for personal of paragraph (i)(7) introductory text to be relevant by the contracting officer. services. Factors that may be relevant include, ‘‘subdivisions (j)(3)(i)’’ and adding (6) The cognizant ACO must— ‘‘paragraphs (i)(3)(i)’’ in its place; and by but are not limited to, conformity with (i) Give special consideration to— compensation practices of other firms— removing from paragraph (i)(8)(iii) (A) Owners of closely held (i) Of the same size; ‘‘subdivision (j)(3)(ii) above’’ and adding corporations, members of limited (ii) In the same industry; ‘‘paragraph (i)(3)(ii) of this subsection’’ liability companies, partners, sole in its place; proprietors, or members of their (iii) In the same geographic area; and g. Removing from newly designated immediate families; and (iv) Engaged in similar non- paragraph (n)(2) ‘‘(o)(2)(i)’’ and adding (B) Persons who are contractually Government work under comparable ‘‘(n)(2)(i)’’ in its place, and removing committed to acquire a substantial circumstances. ‘‘section’’ and adding ‘‘subsection’’ in financial interest in the contractor’s (c) Form of payment. (1) its place; enterprise. Compensation for personal services h. Removing from the first sentence of (ii) Ensure that compensation costs includes compensation paid or to be newly designated paragraph (n)(5) covered by this paragraph are not— paid in the future to employees in the ‘‘(o)(2)(iii)’’ and adding ‘‘(n)(2)(iii)’’ in (A) A distribution of profits, which is form of— its place; not an allowable contract cost; and (i) Cash; i. Removing from the last sentence of (B) In excess of costs that are (ii) Corporate securities, such as newly designated paragraph (o)(1) deductible as compensation under the stocks, bonds, and other financial introductory text ‘‘(p)(2)(ii)’’ and adding Internal Revenue Code (26 U.S.C.) and instruments (see paragraph (c)(2) of this ‘‘(o)(2)(ii)’’ in its place; removing the regulations under it. subsection regarding valuation; or colon at the end of paragraph (o)(2) (b) Reasonableness—(1) (iii) Other assets, products, or introductory text and adding an em- Compensation pursuant to labor- services. dash (—) in its place, and by removing management agreements. If costs of (2) When compensation is paid with from paragraph (o)(2)(i) ‘‘(j)(5) and compensation established under ‘‘arm’s securities of the contractor or of an (j)(8)’’ and adding ‘‘(i)(5) and (i)(8)’’ in length’’ labor-management agreements affiliate, the following additional its place. negotiated under the terms of the restrictions apply: The revised text reads as follows: Federal Labor Relations Act or similar (i) Valuation placed on the securities state statutes are otherwise allowable, is the fair market value on the first date 31.205–6 Compensation for personal the costs are reasonable unless, as the number of shares awarded is known, services. applied to work in performing determined upon the most objective (a) General. Compensation for Government contracts, the costs are basis available. personal services is allowable subject to unwarranted by the character and (ii) Accruals for the cost of securities the following general criteria and circumstances of the work or before issuing the securities to the additional requirements contained in discriminatory against the Government. employees are subject to adjustment other parts of this cost principle: The application of the provisions of a according to the possibilities that the (1) Compensation for personal labor-management agreement designed employees will not receive the services must be for work performed by to apply to a given set of circumstances securities and that their interest in the the employee in the current year and and conditions of employment (e.g., accruals will be forfeited. must not represent a retroactive work involving extremely hazardous (d) Income tax differential pay. (1) adjustment of prior years’ salaries or activities or work not requiring Differential allowances for additional VerDate 11 income taxes resulting from foreign will consider allowability on a case-by- 31.205–7 [Amended] assignments are allowable. case basis. 7. Amend section 31.205–7 in the last (2) Differential allowances for (5) Under 10 U.S.C. 2324(e)(1)(M) and sentence of paragraph (c)(2) by additional income taxes resulting from 41 U.S.C. 256(e)(1)(M), the costs of removing ‘‘31.205–6(g)’’ and adding domestic assignments are unallowable. severance payments to foreign nationals ‘‘31.205–6(f)’’ in its place. (e) Bonuses and incentive employed under a service contract 31.205–13 [Amended] compensation. (1) Bonuses and performed outside the United States are 8. Amend section 31.205–13 in the incentive compensation based on unallowable to the extent that such last sentence of paragraph (b) by production, cost reduction, or efficient payments exceed amounts typically performance are allowable provided removing ‘‘31.205–6(f)’’ and adding paid to employees providing similar the— ‘‘31.205-6(e)’’ in its place. services in the same industry in the (i) Awards are paid or accrued under United States. Further, under 10 U.S.C. an agreement entered into in good faith 31.205–46 [Amended] 2324(e)(1)(N) and 41 U.S.C. 256(e)(1)(N), between the contractor and the 9. Amend section 31.205–46 in the all such costs of severance payments employees before the services are last sentence of paragraph (f) by that are otherwise allowable are rendered or pursuant to an established removing ‘‘31.205–6(m)(2)’’ and adding unallowable if the termination of plan or policy followed by the ‘‘31.205–6(l)(2)’’ in its place. contractor so consistently as to imply, in employment of the foreign national is PART 37—SERVICE CONTRACTING effect, an agreement to make such the result of the closing of, or the curtailment of activities at, a United payment; and 10. Amend section 37.113–1 by (ii) Basis for the award is supported. States facility in that country at the request of the government of that revising the introductory text of (2) When the bonus and incentive paragraph (a) to read as follows: compensation payments are deferred, country; this does not apply if the the costs are subject to the requirements closing of a facility or curtailment of 37.113–1 Waiver of cost allowability of paragraphs (e)(1) and (j) of this activities is made pursuant to a status- limitations. subsection. of-forces or other country-to-country (a) The head of the agency may waive (f) Severance pay. (1) Severance pay is agreement entered into with the the 31.205–6(f)(5) cost allowability a payment in addition to regular salaries government of that country before limitations on severance payments to and wages by contractors to workers November 29, 1989. 10 U.S.C. 2324(e)(3) foreign nationals for contracts that— and 41 U.S.C. 256(e)(2) permit the head whose employment is being * * * * * involuntarily terminated. Payments for of the agency to waive these cost early retirement incentive plans are allowability limitations under certain PART 52—SOLICITATION PROVISIONS covered in paragraph (i)(7) of this circumstances (see 37.113 and the AND CONTRACT CLAUSES subsection. solicitation provision at 52.237–8). (2) Severance pay is allowable only to (g) Backpay. Backpay is a retroactive 52.215–18 [Amended] the extent that, in each case, it is adjustment of prior years’ salaries or 11. Amend section 52.215–18 by required by— wages. Backpay is unallowable except removing from the clause heading (i) Law; as follows: ‘‘(OCT 1997)’’ and adding ‘‘(DATE)’’ in its place; and by removing from the (ii) Employer-employee agreement; (1) Payments to employees resulting second sentence of the clause ‘‘31.205- (iii) Established policy that from underpaid work actually 6(o)(6)’’ and adding ‘‘31.205–6(n)(6)’’ in constitutes, in effect, an implied performed are allowable, if required by its place. agreement on the contractor’s part; or a negotiated settlement, order, or court (iv) Circumstances of the particular decree. 52.237–8 [Amended] employment. (3) Payments made in the event of (2) Payments to union employees for 12. Amend section 52.237–8 by employment with a replacement the difference in their past and current removing from the provision heading contractor where continuity of wage rates for working without a ‘‘(OCT 1995)’’ and adding ‘‘(DATE)’’ in employment with credit for prior length contract or labor agreement during labor its place; and by removing from of service is preserved under management negotiation are allowable. paragraph (a) of the provision ‘‘31.205– substantially equal conditions of (3) Payments to nonunion employees 6(g)(3)’’ and adding ‘‘31.205–6(f)(5)’’ in employment, or continued employment based upon results of union agreement its place. by the contractor at another facility, negotiation are allowable only if— 52.237–9 [Amended] subsidiary, affiliate, or parent company (i) A formal agreement or 13. Amend section 52.237–9 by of the contractor are not severance pay understanding exists between removing from the clause heading and are unallowable. management and the employees ‘‘(OCT 1995)’’ and adding ‘‘(DATE)’’ in (4) Abnormal or mass severance pay concerning these payments; or its place; and by removing from is of such a conjectural nature that paragraph (a) of the clause ‘‘31.205– accruals for this purpose are not (ii) An established policy or practice 6(g)(3)’’ and adding ‘‘31.205–6(f)(5)’’ in allowable. However, the Government exists and is followed by the contractor its place. recognizes its obligation to participate, so consistently as to imply, in effect, an to the extent of its fair share, in any agreement to make such payments. [FR Doc. 02–9665 Filed 4–22–02; 8:45 am] specific payment. Thus, the Government * * * * * BILLING CODE 6820–EP–P VerDate 11 Part IX Department of Housing and Urban Development Notice of Regulatory Waiver Requests Granted for the Fourth Quarter of Calendar Year 2001; Notice VerDate 11 DEPARTMENT OF HOUSING AND rank, and the person to whom authority the period covered by this report before URBAN DEVELOPMENT to waive is delegated must also have the next report is published, the next authority to issue the particular updated report will include these earlier [Docket No. FR–4682–N–04] regulation to be waived; actions, as well as those that occurred Notice of Regulatory Waiver Requests 3. Not less than quarterly, the between January 1, 2002, through March Granted for the Fourth Quarter of Secretary must notify the public of all 31, 2002. Calendar Year 2001 waivers of regulations that HUD has Accordingly, information about approved, by publishing a notice in the approved waiver requests pertaining to AGENCY: Office of the Secretary, HUD. Federal Register. These notices (each HUD regulations is provided in the ACTION: Public notice of the granting of covering the period since the most Appendix that follows this notice. regulatory waivers from October 1, recent previous notification) shall: Dated: April 16, 2002. 2001, through December 31, 2001. a. Identify the project, activity, or Alphonso Jackson, undertaking involved; Deputy Secretary. SUMMARY: Section 106 of the Department b. Describe the nature of the provision of Housing and Urban Development waived, and the designation of the Appendix—Listing of Waivers of Reform Act of 1989 (the HUD Reform provision; Regulatory Requirements Granted by Act) requires HUD to publish quarterly c. Indicate the name and title of the Offices of the Department of Housing Federal Register notices of all person who granted the waiver request; and Urban Development October 1, regulatory waivers that HUD has d. Describe briefly the grounds for 2001 through December 31, 2001 approved. Each notice must cover the approval of the request; and quarterly period since the most recent e. State how additional information Note to Reader: More information about Federal Register notice. The purpose of about a particular waiver grant action the granting of these waivers, including a may be obtained. copy of the waiver request and approval, may this notice is to comply with the be obtained by contacting the person whose requirements of section 106 of the HUD Section 106 of the HUD Reform Act name is listed as the contact person directly Reform Act. This notice contains a list also contains requirements applicable to after each set of waivers granted. of regulatory waivers granted by HUD waivers of HUD handbook provisions The regulatory waivers granted appear in during the quarter beginning on October that are not relevant to the purpose of the following order: 1, 2001, and ending on December 31, this notice. I. Regulatory waivers granted by the Office of 2001. Today’s document follows Community Planning and Development. publication of HUD’s Statement of II. Regulatory waivers granted by the Office FOR FURTHER INFORMATION CONTACT: For Policy on Waiver of Regulations and of Healthy Homes and Lead Hazard general information about this notice, Directives issued by HUD on April 22, Control. contact Aaron Santa Anna, Assistant 1991 (56 FR 16337). This notice covers III. Regulatory waivers granted by the Office General Counsel for Regulations, Room HUD’s waiver-grant activity from of Housing. 10282, Department of Housing and October 1, 2001, through December 31, IV. Regulatory waivers granted by the Office Urban Development, 451 Seventh Street, of Multifamily Housing Assistance 2001. This notice also includes a waiver Restructuring, (OMHAR). SW, Washington, DC 20410; telephone from an earlier reporting period that was (202) 708–3055 (this is not a toll-free V. Regulatory waivers granted by the Office inadvertently omitted from the of Public and Indian Housing. number). Hearing or speech-impaired appropriate earlier report. For ease of persons may access this number via I. Regulatory Waivers Granted by the Office reference, the waivers granted by HUD of Community Planning and Development TTY by calling the toll-free Federal are listed by HUD program office (for For further information about the following Information Relay Service at 1–800– example, the Office of Community 877–8391. waiver actions, please see the name of the Planning and Development, the Office contact person who immediately follows the For information concerning a of Housing, the Office of Public and particular waiver action for which description of the waiver granted. Indian Housing, etc.). Within each • Regulation: 24 CFR 91.520(a). public notice is provided in this program office grouping, the waivers are Project/Activity: The Commonwealth of document, contact the person whose listed sequentially by the section of title Virginia requested a waiver of the submission name and address follow the 24 being waived. For example, a waiver- deadline for the State’s 2000 program year description of the waiver granted in the grant action involving the waiver of a Consolidated Annual Performance and Evaluation Report (CAPER). accompanying list of waiver-grant provision in 24 CFR part 58 would come actions. Nature of Requirement: 24 CFR 91.520(a) before a waiver of a provision in 24 CFR requires each grantee to submit a SUPPLEMENTARY INFORMATION: As part of part 570. performance report to HUD within 90 days the Housing and Urban Development Where more than one regulatory after the close of the grantee’s program year. Reform Act of 1989 (the HUD Reform provision is involved in the grant of a Granted By: Roy A. Bernardi, Assistant Act), the Congress adopted, at HUD’s particular waiver request, the action is Secretary for Community Planning and request, legislation to limit and control listed under the section number of the Development. the granting of regulatory waivers by Date Granted: October 1, 2001. first regulatory requirement that appears Reasons Waived: The Commonwealth of HUD. Section 106 of the HUD Reform in title 24 of the Code of Federal Virginia requested an extension due to Act added a new section 7(q) to the Regulations and that is being waived as personnel changes in the Virginia Housing Department of Housing and Urban part of the waiver-grant action. For Division and additional needed effort to Development Act (2 U.S.C. 3535(q)), example, a waiver of both § 58.73 and develop information from the which provides that: § 58.74 would appear sequentially in the Commonwealth’s and IDIS reporting format. 1. Any waiver of a regulation must be listing under § 58.73. While HUD is desirous of timely reports, the in writing and must specify the grounds Waiver-grant actions involving the Department is also interested in ensuring that for approving the waiver; information from grantees is complete and same initial regulatory citation are in accurate. The Department granted the 2. Authority to approve a waiver of a time sequence beginning with the Commonwealth of Virginia an extension to regulation may be delegated by the earliest-dated waiver grant action. October 26, 2001, to submit its 2000 CAPER. Secretary only to an individual of Should HUD receive additional Contact: Cornelia Robertson-Terry, Office Assistant Secretary rank or equivalent reports of waiver actions taken during of Community Planning and Development, VerDate 11 Room 7152, Department of Housing and Granted By: Roy A. Bernardi, Assistant Date Granted: November 20, 2001. Urban Development, 451 Seventh Street, Secretary for Community Planning and Reasons Waived: The homeowner refused SW., Washington, DC 20410; telephone: (202) Development. to allow the Wisconsin Coulee Region CAP 708–2565, extension 4556. Date Granted: October 1, 2001. access to his property to complete the • Regulation: 24 CFR 91.520(a). Reasons Waived: The Department installation of four feet of deck railing and Project/Activity: The City of Berwyn, determined that application of the 99-year one exterior ground fault interruption circuit Illinois, requested a waiver of the submission lease requirement would constitute an undue necessary to bring his property up to the deadline for the city’s 2000 program year hardship. Since the Bureau of Indian Affairs applicable standards. Consequently the CAPER. restricts the term of land leases to 50-years, property does not meet local codes and Nature of Requirement: Section 91.520(a) the 99-year lease provision of the HOME rehabilitation standards. The CAP indicated requires each grantee to submit a program would make it impossible to provide that it has exhausted all alternatives to performance report to HUD within 90 days homeownership assistance to families on complete the activity. The Department after the close of the grantee’s program year. tribal lands. determined that there was good cause for Granted By: Roy A. Bernardi, Assistant Contact: Cornelia Robertson-Terry, Office granting the waiver because the CAP has Secretary for Community Planning and of Community Planning and Development, demonstrated due diligence in attempting to Development. Room 7152, Department of Housing and satisfy program requirements. Date Granted: November 16, 2001. Urban Development, 451 Seventh Street, Contact: Cornelia Robertson-Terry, Office Reasons Waived: The city experienced SW., Washington, DC 20410; telephone: (202) of Community Planning and Development, difficulty with the Integrated Disbursement 708–2565, extension 4556. Room 7152, Department of Housing and and Information System (IDIS). Because this • Regulation: 24 CFR 92.250(a). Urban Development, 451 Seventh Street, is the city’s first CAPER, the city wants to Project/Activity: Kimball, McDowell SW., Washington, DC 20410; telephone: (202) ensure it has adequate time to consult with County, West Virginia, requested a waiver of 708–2565, extension 4556. its subrecipients. While HUD is desirous of the per-unit subsidy limit for the HOME • Regulation: 24 CFR 92.254(a)(5)(ii)(A)(7). timely reports, the Department is also Program. Project/Activity: Delaware County, interested in ensuring that the information Nature of Requirement: Section 92.250(a) Pennsylvania, requested a waiver of 24 CFR from grantees is complete and accurate. The requires that the amount of HOME funds 92.254(a)(5)(ii)(A)(7) to allow low-income Department granted the city an extension to used on a per-unit basis in affordable housing families of HOME-assisted property an February 28, 2002, to submit its 2000 CAPER. may not exceed the per-unit dollar limits additional 18 months to complete the Contact: Cornelia Robertson-Terry, Office established under section 221(d)(3)(ii) of the acquisition of their homes under lease- of Community Planning and Development, National Housing Act (12 U.S.C. purchase agreements. Room 7152, Department of Housing and 17151(d)(3)(ii)). Nature of Requirement: Section Urban Development, 451 Seventh Street, Granted By: Roy A. Bernardi, Assistant 92.254(a)(5)(ii)(A)(7) requires that families SW., Washington, DC 20410; telephone: (202) Secretary for Community Planning and participating in HOME-funded lease 708–2565, extension 4556. Development. purchase program must acquire their homes • Regulation: 24 CFR 91.520(a). Date Granted: November 6, 2001. within 36 months of signing the lease- Project/Activity: Cook County, Illinois, Reasons Waived: The Department is aware purchase agreement. requested a waiver of the submission that the projected cost increase is due in part Granted By: Roy A. Bernardi, Assistant deadline for the county’s 2000 program year to an expedited schedule to respond to a Secretary for Community Planning and CAPER. natural disaster that affected the area and was Development. Nature of Requirement: Section 91.520(a) not in the control of the West Virginia Date Granted: November 6, 2001. requires each grantee to submit a Housing Development Funds. The Reasons Waived: HUD recognizes the performance report to HUD within 90 days replacement housing is within a challenges and delays that have resulted from after the close of the grantee’s program year. Presidentially-Declared Disaster Area. These having to bring in a second nonprofit to take Granted By: Roy A. Bernardi, Assistant circumstances constitute good cause for a over the program and considers this Secretary for Community Planning and suspension of section 212(e) of the National circumstance as good cause for granting a Development. Affordable Housing Act and a waiver of the waiver. Further, HUD is concerned that none Date Granted: November 16, 2001. regulations. of the original families selected for this Reasons Waived: The county discovered a Contact: Cornelia Robertson-Terry, Office program has been able to complete their number of inaccuracies and discrepancies in of Community Planning and Development, lease—purchase obligations in the past four report data generated by the Integrated Room 7152, Department of Housing and years. The waiver grants an additional 12 Disbursement and Information System (IDIS). Urban Development, 451 Seventh Street, months for transfer of ownership to take The county requested additional time to SW., Washington, DC 20410; telephone: (202) place. This waiver will allow time for five ensure that its information is accurate. While 708–2565, extension 4556. families that are deemed to have some HUD is desirous of timely reports, the • Regulation: 24 CFR 92.251 & 92.502(d). possibility to complete purchase to do so. Department is also interested in ensuring that Project/Activity: The State of Wisconsin Contact: Cornelia Robertson-Terry, Office information from grantees is complete and requested a waiver of HOME Program of Community Planning and Development, accurate. The Department granted the county regulations governing property standards and Room 7152, Department of Housing and an extension to February 28, 2002, to submit program completion. The State seeks relief Urban Development, 451 Seventh Street, its 2000 CAPER. from HOME requirements in order to SW., Washington, DC 20410; telephone: (202) Contact: Cornelia Robertson-Terry, Office reimburse the Wisconsin Coulee Region 708–2565, extension 4556. of Community Planning and Development, Community Action Plan (CAP) for the • Regulation: 24 CFR 92.500(d)(1)(C). Room 7152, Department of Housing and expense incurred in rehabilitating a property. Project/Activity: The Municipality of Urban Development, 451 Seventh Street, Nature of Requirement: Section 92.251 Carolina, Puerto Rico, requested a waiver of SW., Washington, DC 20410; telephone: (202) requires that housing constructed or its FY 1995 HOME program expenditure 708–2565, extension 4556. rehabilitated with HOME funds must meet all deadline of June 30, 2000. • Regulation: 24 CFR 92.2. applicable local codes, rehabilitation Nature of Requirement: Section Project/Activity: The State of New Mexico standards, ordinances, and zoning 92.500(d)(1)(C) requires HUD to deobligate requested a waiver of the HOME program ordinances at the time of project completion. any funds in the United States Treasury definition of ‘‘Homeownership’’ under § 24 Section 92.502 (d) requires that complete account which are not expended within 60 CFR 92.2 project complete information must be entered months of the last day that HUD notifies the Nature of Requirement: As defined in into the disbursement and information participating jurisdiction of HUD’s execution § 92.2, homeownership requires a fee simple system, or otherwise provided, within 120 of the HOME Investment Partnership title or a 99-year leasehold interest in a one days of the final project draw down. Agreement. to four unit dwelling or condominium unit, Granted By: Roy A. Bernardi, Assistant Granted By: Roy A. Bernardi, Assistant or equivalent form of ownership approved by Secretary for Community Planning and Secretary for Community Planning and HUD. Development. Development. VerDate 11 Date Granted: November 20, 2001. determined that the city has demonstrated government. Specific requirements depend Reasons Waived: The lack of a functioning good cause for the waiver. This project will on whether the housing is being disposed of Community Housing Development significantly promote the purposes of the or assisted by the federal government, on the Organization (CHDO) and project delays Housing and Community Development Act type and amount of financial assistance, the caused by unanticipated circumstances by expanding housing opportunities and age of the structure, and whether the affected the PJ’s ability to spend its HOME choices for low- and moderate-income dwelling is rental or owner-occupied. allocation in a timely manner. The households and providing an income mix in Granted By: Alphonso Jackson, Deputy Department noted that the Municipality has a redeveloping neighborhood. The waiver is Secretary. made several administrative changes to granted with the understanding that low- and Date Granted: November 1, 2001. improve the accountability and performance moderate-income households will occupy 20 Reason Waived: The availability of trained of its HOME program. Therefore, given the percent of the units and that the CDBG funds contractors is inadequate due to the ongoing positive steps taken by the Municipality to will constitute 7.5 percent of the total cost of recovery efforts following the attacks on the address its problems and the fact that the the project. World Trade Center on September 11, 2001. 1995 expenditure shortfall was fully Contact: Cornelia Robertson-Terry, Office Contact: David E. Jacobs, Director, Office of expended four and one-half months after the of Community Planning and Development, Healthy Homes and Lead Hazard Control June 30, 2000, regulatory deadline, the Room 7152, Department of Housing and Department of Housing and Urban Department determined that there is good Urban Development, 451 Seventh Street, Development, Room P3206, L’Enfant Plaza, cause to grant the requested waiver. SW., Washington, DC 20410; telephone: (202) Washington, DC 20410; telephone: (202) 755– Contact: Cornelia Robertson-Terry, Office 708–2565, extension 4556. 4973. of Community Planning and Development, • Regulation: 24 CFR 574.310(c)(1)(i). III. Regulatory Waivers Granted by the Room 7152, Department of Housing and Project/Activity: The State of Indiana Office of Housing Urban Development, 451 Seventh Street, requested a waiver of the minimum use SW., Washington, DC 20410; telephone: (202) For further information about the following period for structures assisted with HOPWA waiver actions, please see the name of the 708–2565, extension 4556. funds. • contact person who immediately follows the Regulation: 24 CFR 92.503(b)(2). Nature of Requirement: Section 574.310 description of the waiver granted. Project/Activity: The County of Burlington, (c)(1)(i) requires that any building or • Regulation: 24 CFR 202.3(c)(2)(iii). New Jersey, requested a waiver of the structure assisted with HOPWA funds for Project/Activity: Credit Watch/Termination repayment requirements in 24 CFR new construction, substantial rehabilitation Threshold, Washington, DC. 92.503(b)(2) of the HOME regulations. or acquisition must be maintained as a Nature of Requirement: Section Nature of Requirement: Section facility to provide housing or assistance for 202.3(c)(2)(iii) establishes a threshold for 92.503(b)(2) requires a participating individuals with acquired immunodeficiency placing a HUD/FHA approved lender on jurisdiction (PJ) to repay any HOME funds syndrome or related diseased for a period of Credit Watch status when its default and invested in a project that is terminated before not less that 10 years. claim rate exceeds the field office default and completion. Granted By: Roy A. Bernardi, Assistant claim rate. Granted By: Roy A. Bernardi, Assistant Secretary for Community Planning and Granted By: John C. Weicher, Assistant Secretary for Community Planning and Development. Secretary for Housing-Federal Housing Development. Date Granted: November 29, 2001. Commissioner. Date Granted: December 20, 2001. Reasons Waived: The Department Date Granted: October 3, 2001. Reasons Waived: HUD determined that the determined that there was good cause for the Reason Waived: Waiving the regulation County of Burlington’s exercise of due waiver because the supporting permits HUD/FHA to initially focus on those diligence in recovering almost all of the documentation verified that the assisted lenders originating the worst performing HOME funds expended on this project structure is no longer needed to provide loans. The waiver will adjust the Credit constitutes good cause for a waiver. This supported housing or assistance. Due to the Watch threshold from being between 150% waiver relieves the County of Burlington’s development of new drug treatment and 200.9% of the HUD field office default obligation to repay the outstanding amount of modalities, individuals with HIV/AIDS are and claim rate to being between 200% and $2,941.05 used on this project. currently able to live longer and in more 300.9% of that rate. This waiver is limited to Contact: Cornelia Robertson-Terry, Office independent settings than this facility Credit Watch reviews conducted in the third of Community Planning and Development, provides. The facility is presently operating quarter of CY 2001. Room 7152, Department of Housing and at a financial loss due to low occupancy. Contact: Joy L. Hadley, Director, Quality Urban Development, 451 Seventh Street, Thus the continued operation of the facility Assurance Division, U. S. Department of SW., Washington, DC 20410; telephone: (202) for such purpose is no longer feasible. Housing and Urban Development, 451 708–2565, extension 4556. Contact: Cornelia Robertson-Terry, Office Seventh Street, SW., Room B133–P3214, • Regulation: 24 CFR 570.208(a)(3). of Community Planning and Development, Washington, DC 20410–7000; telephone: Project/Activity: The City of St. Louis, Room 7152, Department of Housing and (202) 708–2830. Missouri, requested a waiver of the low- and Urban Development, 451 Seventh Street, • Regulation: 24 CFR 203.42. moderate-income national objective requiring SW., Washington, DC 20410; telephone: (202) Project/Activity: City of Palatka Housing that low- and moderate-income households 708–2565, extension 4556. Authority, Palatka, Florida. must occupy at least 51 percent of the units Nature of Requirement: Section 203.42 II. Regulatory Waivers Granted by the Office in a multi-unit residential structure. prohibits mortgage insurance on property of Healthy Homes and Lead Hazard Control Nature of Requirement: Section that is part of a project, subdivision, or group 570.208(a)(3) requires that at least 51 percent For further information about the following of rental properties in which the mortgagor of the units in a multi-unit residential waiver actions, please see the name of the has a financial interest in eight or more structure be occupied by low- and moderate- contact person who immediately follows the dwellings. income households. description of the waiver granted. Granted by: John C. Weicher, Assistant Granted By: Roy A. Bernardi, Assistant • Regulation: 24 CFR Part 35, Subparts B– Secretary for Housing-Federal Housing Secretary for Community Planning and R. Commissioner. Development. Project/Activity: Waiver of the existing Date Granted: November 26, 2001. Date Granted: December 4, 2001. compliance date (January 10, 2002) for the Reason Waived: The waiver was granted in Reasons Waived: The methodology HUD Lead Safe Housing Rule for all HUD order to permit the Housing Authority of the identified in the regulations at 24 CFR programs in New York, NY. The new City of Palatka, Florida, to refinance the 570.208(a)(3) for multi-unit residential compliance date is April 10, 2002. blanket mortgage on twenty-two units with building is not required by statute. Therefore, Nature of Requirement: The regulations in FHA mortgage insurance to promote the HUD may consider a waiver to permit the use 24 CFR part 35, Subparts B–R, requires City’s affordable housing and of another methodology to meet the housing actions to identify and reduce lead-based homeownership programs. national objective. Based on the information paint hazards in pre-1978 housing that is Contact: Vance Morris, Director, Office of provided by the city, the Department financially assisted or sold by the federal Single Family Program Development, VerDate 11 Department of Housing and Urban Reason Waived: Waiving the regulations Project/Activity: Mt. Carmel Senior Development, 451 Seventh Street, SW., will enable the FHA mortgagors who still Housing, Brooklyn, New York, Project Washington, DC 20410; telephone: (202) 708– own properties subject to FHA-insured Number: 012–EE277/NY36–S991–017. 2121, extension 2204. mortgages to continue to occupy their homes Nature of Requirement: Section 891.100(d) • Regulation: 24 CFR 203.670(b)(3), 24 while the properties are conveyed to HUD prohibits amendment of the amount of CFR 203.674(b), 24 CFR 203.675, 24 CFR and will offer them the opportunity to approved capital advance funds prior to 203.679(a). repurchase from the Department the initial closing. Project/Activity: Friends of Tyler School, properties they are occupying. This waiver is Granted By: John C. Weicher, Assistant Washington, DC. limited to FHA mortgagors who were Secretary for Housing-Federal Housing Nature of Requirement: Section members of the class action suit captioned Commissioner. 203.670(b)(3) permits occupied conveyance Ruby Honorable v. Easy Life Real Estate Date Granted: December 4, 2001. of the property if it is in the Secretary’s System, Inc., covered by the settlement Reason Waived: The Sponsor exhausted all interest under 24 CFR 203.671. Section agreement dated March 16, 2001, and still efforts to obtain additional funding from 203.674(b) states the required conditions for occupying their homes. The court order other sources, the project is economically continued occupancy for an occupant who entering the settlement agreement establishes designed and comparable to other similar does not meet the illness or injury criteria. that the covered FHA mortgagors were projects developed in the area. Section 203.675 sets out the requirements for victims of predatory practices. The waivers Contact: Brenda Butler, Office of Housing adequate notice to occupants of pending are consistent with the Department’s Assistance and Grant Administration, acquisition. Section 203.679(a) states that objectives of helping to maintain Department of Housing and Urban occupancy of HUD-acquired property is homeownership and affordable housing Development, 451 Seventh Street, SW., temporary in all cases and is subject to opportunities and mitigate losses to the Washington, DC 20410; telephone: (202) 708– termination when necessary to facilitate insurance funds. 0614, extension 6788. preparing the property for sale. Contact: Joseph McCloskey, Director, • Regulation: 24 CFR 891.100(d). Granted By: John C. Weicher, Assistant Office of Single Family Asset Management, Project/Activity: Shakespeare Senior Secretary for Housing-Federal Housing Department of Housing and Urban Housing, Warner Robins, Georgia Project Commissioner. Development, 451 Seventh Street, SW. Number: 012–EE266/NY36–S991–006. Date Granted: December 12, 2001. Washington, DC 20410–7000; telephone: Nature of Requirement: HUD’s regulation Reason Waived: Those regulations were (202) 708–1672, extension 2296. at 24 CFR 891.100(d) prohibits amendment of the amount of approved capital advance waived in order to allow the Department to • Regulation: 24 CFR 891.100(d). funds prior to initial closing. accept an occupied conveyance. Occupied Project/Activity: Village Pointe, Norfolk, conveyance will facilitate and expedite a Granted By: John C. Weicher, Assistant Virginia, Project Number: 051–EE064/VA36– direct sale of the property to Friends of Tyler Secretary for Housing-Federal Housing S981–004. School, a private nonprofit organization with Commissioner. Nature of Requirement: Section 891.100(d) headquarters next-door to the property. Date Granted: December 13, 2001. prohibits amendment of the amount of Contact: Joe McCloskey, Director, Office of Reason Waived: The Sponsor exhausted all approved capital advance funds prior to Single Family Asset Management, efforts to obtain additional funding from initial closing. Department of Housing and Urban other sources, the project is economically Granted By: John C. Weicher, Assistant Development, 451 Seventh Street, SW., designed and comparable to other similar Secretary for Housing-Federal Housing Washington, DC 20410–7000; telephone: projects developed in the area. Commissioner. (202) 708–1672, extension 2296. Contact: Frank Tolliver, Office of Housing • Date Granted: November 8, 2001. Assistance and Grant Administration, Regulation: 24 CFR 203.673(a) and (b), Reason Waived: The Sponsor exhausted all 203.674(b)(1), 203.675, 203.676, 203.677, Department of Housing and Urban efforts to obtain additional funding from Development, 451 Seventh Street, SW., 203.678, and, 291.100(a)(2). other sources, the project is comparable to Project/Activity: Easy Life Real Estate Washington, DC 20410; telephone: (202) 708– other similar projects developed in the area 0614, extension 3821. Systems, Inc. in Chicago, Illinois. and is economically designed. • Regulation: Section 891.100(d). Nature of Requirement: Section 203.673(a) Contact: Monique Love, Office of Housing Project/Activity: Falcon Park III, Warner and (b) require each residential unit that Assistance and Grant Administration, Robins, Georgia Project Number: 061–HD067/ HUD acquires to contain adequate heating Department of Housing and Urban GA06–Q981–006. facilities, electrical supplies, cooking and Development, 451 Seventh Street, SW. Nature of Requirement: HUD’s regulation sanitary facilities, and a continuing supply of Washington, DC 20410; telephone: (202) 708– hot and cold water. Section 203.674(b)(1) at 24 CFR 891.100(d) prohibits amendment of 0614, extension 2475. governs the application process for eligibility the amount of approved capital advance • for continued occupancy of a property that Regulation: 24 CFR 891.100(d). funds prior to initial closing. has been conveyed to FHA in exchange for Project/Activity: Buckingham Terrace III, Granted By: John C. Weicher, Assistant insurance benefits. Section 203.675 addresses Brunswick, Georgia, Project Number: 061– Secretary for Housing-Federal Housing the process by which notice is provided to EE093/GA06–S001–001. Commissioner. the occupants of each property when Nature of Requirement: Section 891.100(d) Date Granted: December 27, 2001. acquisition by FHA is anticipated to occur prohibits amendment of the amount of Reason Waived: Higher construction costs within 60 to 90 days. Section 203.676 approved capital advance funds prior to have substantially increased the cost of the provides the time frames in which the initial closing. project, the Sponsor exhausted all efforts to occupants must respond to the standard Granted By: John C. Weicher, Assistant obtain additional funding from other sources, notice to request occupied conveyance. Secretary for Housing-Federal Housing the project is economically designed and Section 203.677 sets forth the procedures that Commissioner. comparable to other similar projects FHA uses to approve or deny a request for Date Granted: December 10, 2001. developed in the area. occupied conveyance. Section 203.678 Reason Waived: The Sponsor exhausted all Contact: Frank Tolliver, Office of Housing contains time frames for requesting occupied efforts to obtain additional funding from Assistance and Grant Administration, conveyance. Section 291.100(a)(2) precludes other sources, and the project is comparable Department of Housing and Urban former mortgagors who have defaulted on to other similar projects developed in the Development, 451 Seventh Street, SW., their FHA-insured mortgages from obtaining area and is economically designed. Washington, DC 20410; telephone: (202) 708– a right of first refusal to purchase the Contact: Monique Love, Office of Housing 0614, extension 3821. property from FHA that had been the security Assistance and Grant Administration, • Regulation: 24 CFR 891.100(d). for the defaulted mortgage. Department of Housing and Urban Project/Activity: Wolcott Senior Housing, Granted By: John C. Weicher, Assistant Development, 451 Seventh Street, SW., Wolcott, Connecticut, Project Number: 017– Secretary for Housing-Federal Housing Washington, DC 20410; telephone: (202) 708– EE052/CT26–S991–003. Commissioner. 0614, extension 2475. Nature of Requirement: Section 891.100(d) Date Granted: November 5, 2001. • Regulation: 24 CFR 891.100(d). prohibits amendment of the amount of VerDate 11 approved capital advance funds prior to Granted By: John C. Weicher, Assistant Date Granted: December 7, 2001. initial closing. Secretary for Housing-Federal Housing Reason Waived: The project is Granted By: John C. Weicher, Assistant Commissioner. economically designed, comparable to other Secretary for Housing-Federal Housing Date Granted: December 20, 2001. projects developed in the area, and the Commissioner. Reason Waived: Higher construction costs Sponsor has exhausted all efforts to obtain Date Granted: October 25, 2001. have substantially increased the cost of the funds from other sources. Reason Waived: Higher construction costs project, the Sponsor exhausted all efforts to Contact: Brenda Butler, Office of Housing have substantially increased the cost of the obtain additional funding from other sources, Assistance and Grant Administration, project, the Sponsor exhausted all efforts to and the project is comparable to other similar Department of Housing and Urban obtain additional funding from other sources, projects developed in the area. Development, 451 Seventh Street, SW., the project is economically designed and Contact: Frank Tolliver, Office of Housing Washington, DC 20410; telephone: (202) 708– comparable to other similar projects Assistance and Grant Administration, 0614, extension 6788. developed in the area. Department of Housing and Urban • Regulation: 24 CFR 891.100(d). Contact: Frank Tolliver, Office of Housing Development, 451 Seventh Street, SW., Project/Activity: Homes Anew, Suffolk Assistance and Grant Administration, Washington, DC 20410; telephone: (202) 708– Department of Housing and Urban 0614, extension 3821. County, New York, Project Number: 012– HD095/NY36–Q991–006. Development, 451 Seventh Street, SW., • Regulation: 24 CFR 891.100(d). Washington, DC 20410; telephone: (202) 708– Nature of Requirement: Section 891.100(d) Project/Activity: Inglis Gardens at prohibits amendment of the amount of 0614, extension 3821. Evesham, Evesham Township, New Jersey, • approved capital advance funds prior to Regulation: Section 891.100(d). Project Number: 035–HD040/NJ39–Q981– initial closing. Project/Activity: The Margaret C. Love 001. Granted By: John C. Weicher, Assistant House, Vineyard Haven, Massachusetts, Nature of Requirement: Section 891.100(d) Secretary for Housing-Federal Housing Project Number: 023–EE097/MA06–S981– prohibits amendment of the amount of Commissioner. 002. approved capital advance funds prior to Date Granted: December 4, 2001. Nature of Requirement: HUD’s regulation initial closing. Reason Waived: The Sponsor was unable at 24 CFR 891.100(d) prohibits amendment of Granted By: John C. Weicher, Assistant to obtain additional funds other than the full the amount of approved capital advance Secretary for Housing-Federal Housing exemption of property taxes, and the project funds prior to initial closing. Commissioner. is economically designed and comparable to Granted By: John C. Weicher, Assistant Date Granted: December 20, 2001. other projects developed in the area. Secretary for Housing-Federal Housing Reason Waived: Delays by the original Contact: Frank Tolliver, Office of Housing Commissioner. Sponsor, the requirement to use Davis-Bacon Assistance and Grant Administration, Date Granted: November 8, 2001. wage rates, and the limited availability of Department of Housing and Urban Reason Waived: The location of the project contractors to build the project have Development, 451 Seventh Street, SW., on Martha’s Vineyard resulted in additional attributed to higher construction costs. Washington, DC 20410; telephone: (202) 708– development costs due to the need to ship Contact: Frank Tolliver, Office of Housing construction materials to the property, the Assistance and Grant Administration, 0614, extension 3821. project is modest in design and the Sponsor/ Department of Housing and Urban • Regulation: 24 CFR 891.100(d). Owner secured additional funding in the Development, 451 Seventh Street, SW., Project/Activity: NE 6th Street—Estacada, amount of $198,133. Washington, DC 20410; telephone: (202) 708– Estacada, Oregon, Project Number: 126– Contact: Rita Ross, Office of Housing 0614, extension 3821. EE031/OR16–S991–003. Assistance and Grant Administration, • Regulation: 24 CFR 891.100(d). Nature of Requirement: Section 891.100(d) Department of Housing and Urban Project/Activity: Morrow Woods, Mt. prohibits amendment of the amount of Development, 451 Seventh Street, SW., Gilead, Ohio, Project Number: 043–EE068/ approved capital advance funds prior to Washington, DC 20410; telephone: (202) 708– OH16–S991–004. initial closing. 0614, extension 2696. Nature of Requirement: Section 891.100(d) Granted By: John C. Weicher, Assistant • Regulation: 24 CFR 891.100(d). prohibits amendment of the amount of Secretary for Housing-Federal Housing Project/Activity: Our Savior’s Manor, approved capital advance funds prior to Commissioner. Westland, Michigan, Project Number: 044– initial closing. Date Granted: October 29, 2001. EE071/MI28–S000–004. Granted By: John C. Weicher, Assistant Reason Waived: The project is Nature of Requirement: HUD’s regulation Secretary for Housing-Federal Housing economically designed, comparable to other at 24 CFR 891.100(d) prohibits amendment of Commissioner. similar projects developed in the area, and all the amount of approved capital advance Date Granted: November 2, 2001. efforts to secure additional funds through funds prior to initial closing. Reason Waived: It would be more other sources have been exhausted. Granted By: John C. Weicher, Assistant economically feasible to change the design Contact: Evelyn Berry, Office of Housing Secretary for Housing-Federal Housing and develop the project as two-story elevator Assistance and Grant Administration, Commissioner. buildings, the project is comparable to other Department of Housing and Urban Date Granted: December 26, 2001. projects in the area, and the Sponsor has Development, 451 Seventh Street, SW., Reason Waived: The Sponsor exhausted all exhausted all efforts to find additional funds Washington, DC 20410; telephone: (202) 708– efforts to obtain additional funding from from outside sources. 0614, extension 2483. other sources, the project is comparable to Contact: Frank Tolliver, Office of Housing • Regulation: 24 CFR 891.100(d). other similar projects developed in the area Assistance and Grant Administration, Project/Activity: TELACU San Bernardino, and is economically designed. Department of Housing and Urban San Bernardino, California, Project Number: Contact: Monique Love, Office of Housing Development, 451 Seventh Street, SW., 143–EE040/CA43–S001–004. Assistance and Grant Administration, Washington, DC 20410; telephone: (202) 708– Nature of Requirement: Section 891.100(d) Department of Housing and Urban 0614, extension 3821. prohibits amendment of the amount of Development, 451 Seventh Street, SW., • Regulation: 24 CFR 891.100(d). approved capital advance funds prior to Washington, DC 20410; telephone: (202) 708– Project/Activity: Clair House Senior initial closing. 0614, extension 2475. Housing, Chicago, Illinois, Project Number: Granted By: John C. Weicher, Assistant • Regulation: 24 CFR 891.100(d). 071–EE150/IL06–S991–009. Secretary for Housing-Federal Housing Project Activity: North Haven Elderly Nature of Requirement: Section 891.100(d) Commissioner. Housing, North Haven, Connecticut, Project prohibits amendment of the amount of Date Granted: October 29, 2001. Number: 017–EE051/CT26–S991–002. approved capital advance funds prior to Reason Waived: The City imposed high Nature of Requirement: Section 891.100(d) initial closing. fees and rising construction costs prohibits amendment of the amount of Granted By: John C. Weicher, Assistant substantially increased the cost of the project, approved capital advance funds prior to Secretary for Housing-Federal Housing and the Sponsor exhausted all efforts to find initial closing. Commissioner. additional funds from outside sources. VerDate 11 Contact: Frank Tolliver, Office of Housing Washington, DC 20410; telephone: (202) 708– Reason Waived: Additional time is needed Assistance and Grant Administration, 0614, extension 2696. to process the Firm Commitment application, Department of Housing and Urban • Regulation: 24 CFR 891.100(d). the extremely poor condition of the site Development, 451 Seventh Street, SW., Project/Activity: Mt. Gilead Estates, Mt. resulted in additional project cost and the Washington, DC 20410; telephone: (202) 708– Gilead, Ohio, Project Number: 043–HD038/ Owner is unable to obtain the additional 0614, extension 3821. OH16–Q991–001. funds from other sources. • Regulation: 24 CFR 891.100(d). Nature of Requirement: Section 891.100(d) Contact: Monique Love, Office of Housing Assistance and Grant Administration, Project/Activity: Holiday Drive Place, prohibits amendment of the amount of Department of Housing and Urban Kansas City, Missouri, Project Number: 084– approved capital advance funds prior to Development, 451 Seventh Street, SW., HD034/MO16–Q001–002. initial closing. Washington, DC 20410; telephone: (202) 708– Nature of Requirement: Section 891.100(d) Granted By: John C. Weicher, Assistant prohibits amendment of the amount of 0614, extension 2475. Secretary for Housing-Federal Housing • approved capital advance funds prior to Commissioner. Regulation: 24 CFR 891.100(d) and 24 initial closing. Date Granted: November 2, 2001. CFR 891.165. Granted By: John C. Weicher, Assistant Reason Waived: It was more economically Project/Activity: Gene Gilbert Manor, Secretary for Housing-Federal Housing feasible to change the design and develop the Albuquerque, New Mexico, Project Number: 116–HD011/NM16–Q981–001. Commissioner. project as two-story elevator buildings, the Nature of Requirement: Section 891.100(d) Date Granted: November 28, 2001. project was comparable to other projects in prohibits amendment of the amount of Reason Waived: The project is the area, and the Sponsor exhausted all approved capital advance funds prior to economically designed, comparable to other efforts to obtain additional funding from initial closing. Section 891.165 provides that projects in the area; the Sponsor cannot other sources. contribute any additional funds and has the duration of the fund reservation for the Contact: Frank Tolliver, Office of Housing capital advance is 18 months from the date exhausted all efforts to obtain additional Assistance and Grant Administration, funding from other sources. of issuance with limited exceptions up to 24 Department of Housing and Urban months, as approved by HUD on a case-by- Contact: Monique Love, Office of Housing Development, 451 Seventh Street, SW., Assistance and Grant Administration, case basis. Washington, DC 20410; telephone: (202) 708– Department of Housing and Urban Granted By: John C. Weicher, Assistant 0614, extension 3821. Development, 451 Seventh Street, SW., Secretary for Housing-Federal Housing • Washington, DC 20410; telephone: (202) 708– Regulation: 24 CFR 891.130(b). Commissioner. 0614, extension 2475. Project/Activity: Shirley Bridge Bungalows, Date Granted: November 7, 2001. West Seattle, King County, Washington, Reason Waived: Delays were caused by the • Regulation: 24 CFR 891.100(d). Project Number: 127–HD027/WA19–Q001– developer trying to locate additional funds Project/Activity: Friendly Temple Elderly 002. for construction, the project is economically Apartments, St. Louis, Missouri, Project Nature of Requirement: Section 891.130(b) designed, comparable to other similar Number: 085–EE051/MO36–S001–004. prohibits an identify of interest between the projects developed in the jurisdiction and the Nature of Requirement: Section 891.100(d) Sponsor/Owner is unable to obtain the prohibits amendment of the amount of Sponsor or Owner (or Borrower, as applicable) and any development team additional funds from other sources. approved capital advance funds prior to Contact: Brenda Butler, Office of Housing initial closing. members or between development team members. Assistance and Grant Administration, Granted By: John C. Weicher, Assistant Department of Housing and Urban Secretary for Housing-Federal Housing Granted By: John C. Weicher, Assistant Secretary for Housing-Federal Housing Development, 451 Seventh Street, SW., Commissioner. Washington, DC 20410; telephone: (202) 708– Date Granted: October 29, 2001. Commissioner. Date Granted: November 28, 2001. 0614, extension 6788. Reason Waived: The construction cost of • the project was reduced to the maximum Reason Waived: (Seattle Housing Authority Regulation: 24 CFR 891.100(d) and 24 extent possible to achieve cost savings, the SHA) is providing very favorable lease terms CFR 891.165. project was economically designed, to the project, it is difficult to obtain a Project/Activity: Dr. A.C. Novello Senior Housing, Bronx, New York, Project Number: comparable to other projects in the area, and Management Agent that will accept a small 012–EE252/NY36–S981–008. the Sponsor exhausted all efforts to obtain number of units to manage, and that SHA Nature of Requirement: Section 891.100(d) additional funding from other sources. acting as both the Management Agent and the prohibits amendment of the amount of Contact: Rita Ross, Office of Housing lesser of the land does not violate applicable approved capital advance funds prior to Assistance and Grant Administration, state and local conflict of interest laws initial closing. Section 891.165 provides that Department of Housing and Urban governing nonprofit corporations. the duration of the fund reservation for the Development, 451 Seventh Street, SW., Contact: Gail Williamson, Office of capital advance is 18 months from the date Washington, DC 20410; telephone: (202) 708– Housing Assistance and Grant Administration, Department of Housing and of issuance with limited exceptions up to 24 0614, extension 2696. months, as approved by HUD on a case-by- • Regulation: 24 CFR 891.100(d). Urban Development, 451 Seventh Street, SW., Washington, DC 20410; telephone: (202) case basis. Project/Activity: Oxford Trace Apartments, Granted By: John C. Weicher, Assistant San Antonio, Texas, Project Number: 115– 708–0614, extension 2473. • Secretary for Housing-Federal Housing HD028/TX59–Q991–001. Regulation: 24 CFR 891.100(d) and 24 Commissioner. Nature of Requirement: Section 891.100(d) CFR 891.165. Date Granted: December 4, 2001. prohibits amendment of the amount of Project/Activity: Westminster Reason Waived: The project was required approved capital advance funds prior to Scotlandville, Baton Rouge, Louisiana, to repeat the City of New York’s extensive initial closing. Project Number: 064-EE105/LA48-S991–007. Uniform Land Use Review Process (ULURP) Granted By: John C. Weicher, Assistant Nature of Requirement: Section CFR requirements in order to have a ‘‘community Secretary for Housing-Federal Housing 891.100(d) prohibits amendment of the use’’ deed restriction removed. Also, the Commissioner. amount of approved capital advance funds project is economically designed, comparable Date Granted: December 4, 2001. prior to initial closing. Section 891.165 to other similar projects developed in the Reason Waived: The project was provides that the duration of the fund jurisdiction and the Owner is unable to economically designed, comparable to other reservation for the capital advance is 18 obtain the additional funds from other projects in the area, and the Sponsor months from the date of issuance with sources. exhausted all efforts to obtain additional limited exceptions up to 24 months, as Contact: Rita Ross, Office of Housing funding from other sources. approved by HUD on a case-by-case basis. Assistance and Grant Administration, Contact: Rita Ross, Office of Housing Granted By: John C. Weicher, Assistant Department of Housing and Urban Assistance and Grant Administration, Secretary for Housing-Federal Housing Development, 451 Seventh Street, SW., Department of Housing and Urban Commissioner. Washington, DC 20410; telephone: (202) 708– Development, 451 Seventh Street, SW., Date Granted: November 8, 2001. 0614, extension 2696. VerDate 11 • Regulation: 24 CFR 891.165. California, Project Number: 121–EE118/ Nature of Requirement: Section 891.165 Project/Activity: Volunteers of America CA39–S981–011. provides that the duration of the fund (VOA) Estacada, Estacada, Oregon, Project Nature of Requirement: Section 891.165 reservation for the capital advance is 18 Number: 126–EE031/OR16–S991–003. provides that the duration of the fund months from the date of issuance with Nature of Requirement: Section 891.165 reservation for the capital advance is 18 limited exceptions up to 24 months, as provides that the duration of the fund months from the date of issuance with approved by HUD on a case-by-case basis. reservation for the capital advance is 18 limited exceptions up to 24 months, as Granted By: John C. Weicher, Assistant months from the date of issuance with approved by HUD on a case-by-case basis. Secretary for Housing-Federal Housing limited exceptions up to 24 months, as Granted By: John C. Weicher, Assistant Commissioner. approved by HUD on a case-by-case basis. Secretary for Housing-Federal Housing Date Granted: December 4, 2001. Granted By: John C. Weicher, Assistant Commissioner. Reason Waived: The project required Secretary for Housing-Federal Housing Date Granted: October 31, 2001. additional funding from two different sources Commissioner. Reason Waived: The Sponsor/Owner and the approval process took nearly a year. Date Granted: December 5, 2001. experienced difficulty locating a qualified Contact: Monique Love, Office of Housing Reason Waived: The project experienced contractor and incurred additional delays Assistance and Grant Administration, delays due to wetland and site drainage trying to resolve legal problems and issues Department of Housing and Urban issue. raised by the Town of Garberville. Development, 451 Seventh Street, SW., Contact: Frank Tolliver, Office of Housing Contact: Rita Ross, Office of Housing Washington, DC 20410; telephone: (202) 708– Assistance and Grant Administration, Assistance and Grant Administration, 0614, extension 2475. Department of Housing and Urban Department of Housing and Urban • Regulation: 24 CFR 891.165. Development, 451 Seventh Street, SW., Development, 451 Seventh Street, SW., Project/Activity: Santa Monica Accessible Washington, DC 20410; telephone: (202) 708– Washington, DC 20410; telephone: (202) 708– Apartments, Santa Monica, California, 0614, extension 3821. 0614, extension 2696. Project Number: 122–HD066/CA16–Q951– • Regulation: 24 CFR 891.165. • Regulation: 24 CFR 891.165. 004. Project/Activity: John Butterworth Estates Nature of Requirement: Section 891.165 Project/Activity: Hale Noho, Kaneohe, (aka ASI—Reno), Reno, Washoe County, Hawaii, Project Number: 140–HD022/HI10– provides that the duration of the fund Nevada, Project Number: 125–HD066/NV39– reservation for the capital advance is 18 Q991–003. Q981–001. months from the date of issuance with Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as provides that the duration of the fund provides that the duration of the fund approved by HUD on a case-by-case basis. reservation for the capital advance is 18 reservation for the capital advance is 18 Granted By: John C. Weicher, Assistant months from the date of issuance with months from the date of issuance with Secretary for Housing-Federal Housing limited exceptions up to 24 months, as limited exceptions up to 24 months, as Commissioner. approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. Date Granted: December 4, 2001. Granted By: John C. Weicher, Assistant Granted By: John C. Weicher, Assistant Reason Waived: Delays in the construction Secretary for Housing-Federal Housing Secretary for Housing-Federal Housing start were beyond the control of the Sponsor. Commissioner. Commissioner. Contact: Monique Love, Office of Housing Date Granted: December 19, 2001. Date Granted: October 29, 2001. Assistance and Grant Administration, Reason Waived: Additional time needed to Reason Waived: Escalating construction Department of Housing and Urban review the closing documents. costs in the area made it difficult for the Development, 451 Seventh Street, SW., Contact: Frank Tolliver, Office of Housing Sponsor/Owner to locate a qualified Washington, DC 20410; telephone: (202) 708– Assistance and Grant Administration, contractor who would construct the project 0614, extension 2475. Department of Housing and Urban within the fund reservation amount. • Regulation: 24 CFR 891.165. Development, 451 Seventh Street, SW., Contact: Rita Ross, Office of Housing Washington, DC 20410; telephone: (202) 708– Project/Activity: St. Paul Elder Housing Assistance and Grant Administration, Development, St. Paul, Minnesota, Project 0614, extension 3821. Department of Housing and Urban • Number: 092–EE060/MN46–S991–004. Regulation: 24 CFR 891.165. Development, 451 Seventh Street, SW., Nature of Requirement: Section 891.165 Project/Activity: Ray Rawson Villas (also Washington, DC 20410; telephone: (202) 708– provides that the duration of the fund known as Las Vegas Supportive Housing, 0614, extension 2696. reservation for the capital advance is 18 Inc.) Las Vegas, Nevada, Project Number: • Regulation: 24 CFR 891.165. months from the date of issuance with 125–HD064/NV25–Q971–001. Project/Activity: Beacon Housing, limited exceptions up to 24 months, as Nature of Requirement: Section 891.165 Pasadena, California, Project Number: 122– approved by HUD on a case-by-case basis. provides that the duration of the fund EE137/CA16–S981–006. Granted By: John C. Weicher, Assistant reservation for the capital advance is 18 Nature of Requirement: Section 891.165 Secretary for Housing-Federal Housing months from the date of issuance with provides that the duration of the fund Commissioner. limited exceptions up to 24 months, as reservation for the capital advance is 18 Date Granted: December 4, 2001. approved by HUD on a case-by-case basis. months from the date of issuance with Reason Waived: The project experienced Granted By: John C. Weicher, Assistant limited exceptions up to 24 months, as delays due to poor soil conditions, which Secretary for Housing-Federal Housing approved by HUD on a case-by-case basis. required the Sponsor to come up with a cost Commissioner. Granted By: John C. Weicher, Assistant effective foundation system for the building. Date Granted: December 4, 2001. Secretary for Housing-Federal Housing Contact: Monique Love, Office of Housing Reason Waived: The Sponsor had to raise Commissioner. Assistance and Grant Administration, significant local funds for the additional Date Granted: December 4, 2001. Department of Housing and Urban construction costs due to the construction Reason Waived: Zone change amendments, Development, 451 Seventh Street, SW., boom in the Las Vegas area, and the project changes in architect and the expiration of site Washington, DC 20410; telephone: (202) 708– architect was forced to withdraw due to ill options caused delays in construction start. 0614, extension 2475. health. Contact: Frank Tolliver, Office of Housing • Regulation: 24 CFR 891.165. Contact: Monique Love, Office of Housing Assistance and Grant Administration, Project/Activity: Sumac Trail Apartments, Assistance and Grant Administration, Department of Housing and Urban Rhinelander, Michigan, Project Number: Department of Housing and Urban Development, 451 Seventh Street, SW, 075–HD050/WI39–Q971–001. Development, 451 Seventh Street, SW., Washington, DC 20410; telephone: (202) 708– Nature of Requirement: Section 891.165 Washington, DC 20410; telephone: (202) 708– 0614, extension 3821. provides that the duration of the fund 0614, extension 2475. • Regulation: 24 CFR 891.165. reservation for the capital advance is 18 • Regulation: 24 CFR 891.165. Project/Activity: Casa de Paz Apartments, months from the date of issuance with Project/Activity: Cedar Street Senior Project Number: 122–HD116/CA16–Q981– limited exceptions up to 24 months, as Apartments, Garberville, Humboldt County, 008. approved by HUD on a case-by-case basis. VerDate 11 Granted By: John C. Weicher, Assistant Department of Housing and Urban Urban Development, 451 Seventh Street, Secretary for Housing-Federal Housing Development, 451 Seventh Street, SW., SW., Washington, DC 20410; telephone: (202) Commissioner. Washington, DC 20410; telephone: (202) 708– 708–0614, extension 2473. Date Granted: December 4, 2001. 0614, extension 3821. • Regulation: 24 CFR 891.165. Reason Waived: Additional time needed • Regulation: 24 CFR 891.165. Project/Activity: Atlantic County for the architect to correct plan deficiencies Project/Activity: Joy Senior Apartments, Independent Living Complex, Mays Landing, in the firm commitment application. Petersburg, West Virginia, Project Number: New Jersey, Project Number: 035–HD042/ Contact: Alicia Anderson, Office of 045–EE012/WV15–S981–002. NJ39–Q981–006. Housing Assistance and Grant Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 Administration, Department of Housing and provides that the duration of the fund provides that the duration of the fund Urban Development, 451 Seventh Street, reservation for the capital advance is 18 reservation for the capital advance is 18 SW., Washington, DC 20410; telephone: (202) months from the date of issuance with months from the date of issuance with 708–0614, extension 5787. limited exceptions up to 24 months, as limited exceptions up to 24 months, as • Regulation: 24 CFR 891.165. approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. Project/Activity: Valentino Square, Granted By: John C. Weicher, Assistant Granted By: John C. Weicher, Assistant Greenfield, Wisconsin, Project Number: 075– Secretary for Housing-Federal Housing Secretary for Housing-Federal Housing EE077/WI39–S981–006. Commissioner. Commissioner. Nature of Requirement: Section 891.165 Date Granted: December 12, 2001. Date Granted: December 11, 2001. provides that the duration of the fund Reason Waived: Additional time is needed Reason Waived: Additional time is needed reservation for the capital advance is 18 because the project incurred delays due to when it was discovered prior to initial months from the date of issuance with the Owner having to obtain secondary closing that the survey and surveyor’s report limited exceptions up to 24 months, as financing, purchase an additional strip of had to be updated and that it took a period approved by HUD on a case-by-case basis. land and resolve legal concerns with an of time to accomplish because the surveyor Granted By: John C. Weicher, Assistant Access Easement and Maintenance was recovering from a serious injury. Secretary for Housing-Federal Housing Agreement Contact: Rita Ross, Office of Housing Commissioner. Contact: Brenda Butler, Office of Housing Assistance and Grant Administration, Date Granted: October 22, 2001. Assistance and Grant Administration, Department of Housing and Urban Reason Waived: More time was needed by Department of Housing and Urban Development, 451 Seventh Street, SW., the Field Office to review the firm Development, 451 Seventh Street, SW., Washington, DC 20410; telephone: (202) 708– commitment application. Washington, DC 20410; telephone: (202) 708– 0614, extension 2696. Contact: Frank Tolliver, Office of Housing 0614, extension 6788. • Regulation: 24 CFR 891.165. Assistance and Grant Administration, • Regulation: 24 CFR 891.165. Project/Activity: Summerdale Court, Department of Housing and Urban Project/Activity: Riley Cheeks House, Clairton, Pennsylvania, Project Number: 033– Development, 451 Seventh Street, SW., District of Columbia, Project Number: 000– HD039/PA28–Q971–001. Washington, DC 20410; telephone: (202) 708– HD030/DC39–Q961–001. 0614, extension 3821. Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 • Regulation: 24 CFR 891.165. provides that the duration of the fund provides that the duration of the fund Project/Activity: Elders Place II, reservation for the capital advance is 18 reservation for the capital advance is 18 Philadelphia, Pennsylvania, Project Number: months from the date of issuance with months from the date of issuance with 034-EE086/PA26-S981–007. limited exceptions up to 24 months, as limited exceptions up to 24 months, as Nature of Requirement: Section 891.165 approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. provides that the duration of the fund Granted By: John C. Weicher, Assistant Granted By: John C. Weicher, Assistant reservation for the capital advance is 18 Secretary for Housing-Federal Housing Secretary for Housing-Federal Housing months from the date of issuance with Commissioner. Commissioner. limited exceptions up to 24 months, as Date Granted: October 22, 2001. Date Granted: December 4, 2001. approved by HUD on a case-by-case basis. Reason Waived: The project is being Reason Waived: Additional time is needed Granted By: John C. Weicher, Assistant delayed because the Sponsor has to finalize for the Owner to prepare and HUD to process Secretary for Housing-Federal Housing another secondary funding source since the the Firm Commitment application in order Commissioner. city no longer has HOME funds available. for the project to reach initial closing. Date Granted: October 29, 2001. Contact: Monique Love, Office of Housing Contact: Alicia Anderson, Office of Reason Waived: The owner is experiencing Assistance and Grant Administration, Housing Assistance and Grant difficulty in obtaining a building permit. Department of Housing and Urban Administration, Department of Housing and Contact: Faye Norman, Office of Housing Development, 451 Seventh Street, SW., Urban Development, 451 Seventh Street, Assistance and Grant Administration, Washington, DC 20410; telephone: (202) 708– SW., Washington, DC 20410; telephone: (202) Department of Housing and Urban 0614, extension 2475. 708–0614, extension 5787. • Development, 451 Seventh Street, SW., • Regulation: 24 CFR 891.165. Regulation: 24 CFR 891.165. Washington, DC 20410; telephone: (202) 708– Project/Activity: Flury Place, Elkridge, Project/Activity: NC Orange Senior 0614, extension 2482. Maryland, Project Number: 052–HD034/ Housing Corporation, Orange, Essex County, • Regulation: 24 CFR 891.165. MD06–Q981–004. New Jersey, Project Number: 031–EE048/ Project/Activity: North Las Vegas, North Nature of Requirement: Section 891.165 NJ39–S981–005. Las Vegas, Nevada, Project Number: 125– provides that the duration of the fund Nature of Requirement: Section 891.165 EE111/NV25–S991–001. reservation for the capital advance is 18 provides that the duration of the fund Nature of Requirement: Section 891.165 months from the date of issuance with reservation for the capital advance is 18 provides that the duration of the fund limited exceptions up to 24 months, as months from the date of issuance with reservation for the capital advance is 18 approved by HUD on a case-by-case basis. limited exceptions up to 24 months, as months from the date of issuance with Granted By: John C. Weicher, Assistant approved by HUD on a case-by-case basis. limited exceptions up to 24 months, as Secretary for Housing-Federal Housing Granted By: John C. Weicher, Assistant approved by HUD on a case-by-case basis. Commissioner. Secretary for Housing-Federal Housing Granted By: John C. Weicher, Assistant Date Granted: November 8, 2001. Commissioner. Secretary for Housing-Federal Housing Reason Waived: An easement is required to Date Granted: October 29, 2001. Commissioner. provide public sewer to the property and the Reason Waived: Additional time is needed Date Granted: December 20, 2001. Sponsor is in the process of drafting the for the Federal Home Loan Bank to reissue Reason Waived: Additional time needed to easement for execution by all parties. documentation (destroyed in the attack on complete the initial closing. Contact: Gail Williamson, Office of the World Trade Center) of the $250,000 in Contact: Frank Tolliver, Office of Housing Housing Assistance and Grant secondary financing being provided to the Assistance and Grant Administration, Administration, Department of Housing and project. VerDate 11 Contact: Rita Ross, Office of Housing Department of Housing and Urban Project/Activity: Orlando Volunteers of Assistance and Grant Administration, Development, 451 Seventh Street, SW., America (VOA) Elderly Housing, Project Department of Housing and Urban Washington, DC 20410; telephone: (202) 708– Number: 067–EE104/FL29–S991–004. Development, 451 Seventh Street, SW., 0614, extension 3821. Nature of Requirement: Section 891.165 Washington, DC 20410; telephone: (202) 708– • Regulation: 24 CFR 891.165. provides that the duration of the fund 0614, extension 2696. Project/Activity: West Lake Elderly reservation for the capital advance is 18 • months from the date of issuance with Regulation: 24 CFR 891.165. Apartments, Pittsburgh, Pennsylvania, limited exceptions up to 24 months, as Project/Activity: Castle Court at Concord Project Number: 033–EE101/PA28–S991– approved by HUD on a case-by-case basis. Village, Poughkeepsie, New York, Project 005. Granted By: John C. Weicher, Assistant Number: 012–EE246/NY36–S981–002. Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 Secretary for Housing-Federal Housing provides that the duration of the fund Commissioner. provides that the duration of the fund reservation for the capital advance is 18 reservation for the capital advance is 18 Date Granted: December 4, 2001. months from the date of issuance with Reason Waived: Additional time needed to months from the date of issuance with limited exceptions up to 24 months, as limited exceptions up to 24 months, as process the Firm Commitment application. approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. Contact: Faye Norman, Office of Housing Granted By: John C. Weicher, Assistant Granted By: John C. Weicher, Assistant Assistance and Grant Administration, Secretary for Housing-Federal Housing Secretary for Housing-Federal Housing Department of Housing and Urban Commissioner. Commissioner. Development, 451 Seventh Street, SW., Date Granted: December 20, 2001. Date Granted: December 20, 2001. Washington, DC 20410; telephone: (202) 708– Reason Waived: The project encountered Reason Waived: The development of the 0614, extension 2482. lengthy delays as a result of the Owner’s project is experiencing delays while the • Regulation: 24 CFR 891.165. efforts to locate additional funds to cover Owner seeks additional funds to resolve Project/Activity: St. Boniface Gardens, construction costs, secure local zoning and funding shortfalls. Pembroke, Florida, Project Number: 066– environmental approvals and negotiate a Contact: Brenda Butler, Office of Housing EE074/FL29–S991–006. feasible construction budget. Assistance and Grant Administration, Nature of Requirement: Section 891.165 Contact: Brenda Butler, Office of Housing Department of Housing and Urban provides that the duration of the fund Assistance and Grant Administration, Development, 451 Seventh Street, SW., reservation for the capital advance is 18 Department of Housing and Urban Washington, DC 20410; telephone: (202) 708– months from the date of issuance with Development, 451 Seventh Street, SW., 0614, extension 6788. limited exceptions up to 24 months, as Washington, DC 20410; telephone: (202) 708– • Regulation: 24 CFR 891.165. approved by HUD on a case-by-case basis. 0614, extension 6788. Project/Activity: Mental Health Care, Granted By: John C. Weicher, Assistant • Regulation: 24 CFR 891.165. Brandon, Hillsborough County, Florida, Secretary for Housing-Federal Housing Project/Activity: North Haven Senior Project Number: 067–HD066/FL29–Q991– Commissioner. Housing, North Haven, Connecticut, Project 011. Date Granted: December 4, 2001. Number: 017–EE051/CT26–S991–002. Nature of Requirement: Section 891.165 Reason Waived: Additional time is needed Nature of Requirement: Section 891.165 provides that the duration of the fund because the project has experienced delays in provides that the duration of the fund reservation for the capital advance is 18 the construction start due to the Sponsor reservation for the capital advance is 18 months from the date of issuance with being required to have the site rezoned and months from the date of issuance with limited exceptions up to 24 months, as re-platted. limited exceptions up to 24 months, as approved by HUD on a case-by-case basis. Contact: Frank Tolliver, Office of Housing approved by HUD on a case-by-case basis. Granted By: John C. Weicher, Assistant Assistance and Grant Administration, Granted By: John C. Weicher, Assistant Secretary for Housing-Federal Housing Department of Housing and Urban Secretary for Housing-Federal Housing Commissioner. Development, 451 Seventh Street, SW., Commissioner. Date Granted: November 15, 2001. Washington, DC 20410; telephone: (202) 708– Date Granted: December 20, 2001. Reason Waived: The site had to be rezoned. 0614, extension 3821. Reason Waived: The project experienced Contact: Faye Norman, Office of Housing • Regulation: 24 CFR 891.165. significant delays due to the lengthy price Assistance and Grant Administration, Project/Activity: Urbanite Apartments, negotiations caused by an increase in Department of Housing and Urban Project Number: 071–HD022/IL06–Q921– construction costs throughout the state. Development, 451 Seventh Street, SW., 009, Chicago, Illinois. Contact: Alicia Anderson, Office of Washington, DC 20410; telephone: (202) 708– Nature of Requirement: Section 891.165 Housing Assistance and Grant 0614, extension 2482. provides that the duration of the fund Administration, Department of Housing and reservation for the capital advance is 18 • Regulation: 24 CFR 891.165. Urban Development, 451 Seventh Street, months from the date of issuance with Project/Activity: Jubilee Community SW., Washington, DC 20410; telephone: (202) limited exceptions up to 24 months, as 708–0614, extension 5787. Development Corporation, Miami, Florida, approved by HUD on a case-by-case basis. Project Number: 067–EE071/FL29–S991–016. • Regulation: 24 CFR 891.165. Granted By: John C. Weicher, Assistant Nature of Requirement: Section 891.165 Secretary for Housing-Federal Housing Project/Activity: Inglis Gardens at provides that the duration of the fund Evesham, Evesham Township, New Jersey, Commissioner. reservation for the capital advance is 18 Date Granted: December 6, 2001. Project Number: 035–HD040/NJ39–Q981– months from the date of issuance with 001. Reason Waived: Additional time was limited exceptions up to 24 months, as Nature of Requirement: Section 891.165 needed because in the midst of processing approved by HUD on a case-by-case basis. provides that the duration of the fund the firm application, the City of Chicago Granted By: John C. Weicher, Assistant reservation for the capital advance is 18 requested changes to the redesign and the Secretary for Housing-Federal Housing months from the date of issuance with situation of the building on the site, the City limited exceptions up to 24 months, as Commissioner. took a long time to review the plans. approved by HUD on a case-by-case basis. Date Granted: November 15, 2001. Contact: Rita Ross, Office of Housing Granted By: John C. Weicher, Assistant Reason Waived: The Sponsor had to seek Assistance and Grant Administration, Secretary for Housing-Federal Housing an alternate site. Department of Housing and Urban Commissioner. Contact: Faye Norman, Office of Housing Development, 451 Seventh Street, SW., Date Granted: December 20, 2001. Assistance and Grant Administration, Washington, DC 20410; telephone: (202) 708– Reason Waived: Additional time needed to Department of Housing and Urban 0614, extension 2696. process the Firm Commitment application Development, 451 Seventh Street, SW., • Regulation: 24 CFR 891.165. and for the initial closing to take place. Washington, DC 20410; telephone: (202) 708– Project/Activity: Accessible Space, Contact: Frank Tolliver, Office of Housing 0614, extension 2482. Birmingham, Alabama, Project Number: 062– Assistance and Grant Administration, • Regulation: 24 CFR 891.165. HD041/AL09–Q981–004. VerDate 11 Nature of Requirement: Section 891.165 months from the date of issuance with Granted By: John C. Weicher, Assistant provides that the duration of the fund limited exceptions up to 24 months, as Secretary for Housing-Federal Housing reservation for the capital advance is 18 approved by HUD on a case-by-case basis. Commissioner. months from the date of issuance with Granted By: John C. Weicher, Assistant Date Granted: December 19, 2001. limited exceptions up to 24 months, as Secretary for Housing-Federal Housing Reason Waived: The Sponsor received approved by HUD on a case-by-case basis. Commissioner. approval to change sites for the project on Granted By: John C. Weicher, Assistant Date Granted: December 27, 2001. June 14, 2001, and is in the process of Secretary for Housing-Federal Housing Reason Waived: The Sponsor/Owner had providing justification to change the project Commissioner. to hold numerous meetings to address from a group home to an independent living Date Granted: October 18, 2001. concerns raised by the community and local project. Reason Waived: The Sponsor/Owner had opposition caused delays in obtaining the Contact: Gail Williamson, Office of difficulty locating an alternate site and necessary documents to develop the project. Housing Assistance and Grant additional time is needed to resolve zoning Contact: Rita Ross, Office of Housing Administration, Department of Housing and issues. Assistance and Grant Administration, Urban Development, 451 Seventh Street, Contact: Rita Ross, Office of Housing Department of Housing and Urban SW., Washington, DC 20410; telephone: (202) Assistance and Grant Administration, Development, 451 Seventh Street, SW., 708–0614, extension 2473. Department of Housing and Urban Washington, DC 20410; telephone: (202) 708– • Development, 451 Seventh Street, SW., 0614, extension 2696. Regulation: 24 CFR 891.165. Washington, DC 20410; telephone: (202) 708– • Project/Activity: A Project Number: 014– Regulation: 24 CFR 891.165. HD066/NY06–Q971–013. 0614, extension 2696. Project/Activity: Montclair Senior Housing, • Nature of Requirement: Section 891.165 Regulation: 24 CFR 891.165. Montclair, New Jersey, Project Number: 031– provides that the duration of the fund Project/Activity: National Church EE051/NJ39–S991–002. reservation for the capital advance is 18 Residences, Inc., Orlando, Orange County, Nature of Requirement: Section 891.165 months from the date of issuance with Florida, Project Number: 067–EE101/FL29– provides that the duration of the fund limited exceptions up to 24 months, as S991–001. reservation for the capital advance is 18 approved by HUD on a case-by-case basis. Nature of Requirement: Section 891.165 months from the date of issuance with Granted By: John C. Weicher, Assistant provides that the duration of the fund limited exceptions up to 24 months, as Secretary for Housing-Federal Housing reservation for the capital advance is 18 approved by HUD on a case-by-case basis. Commissioner. months from the date of issuance with Granted By: John C. Weicher, Assistant Date Granted: December 19, 2001. limited exceptions up to 24 months, as Secretary for Housing-Federal Housing Reason Waived: The Sponsor received approved by HUD on a case-by-case basis. Commissioner. approval to change sites for the project on Granted By: John C. Weicher, Assistant Date Granted: December 19, 2001. June 14, 2001, and is in the process of Secretary for Housing-Federal Housing Reason Waived: Schedule conflicts providing justification to change the project Commissioner. prevented the project from closing on the from a group home to an independent living Date Granted: December 20, 2001. planned date. Reason Waived: Additional time is needed Contact: Rita Ross, Office of Housing project. for the owner to correct architectural and Assistance and Grant Administration, Contact: Gail Williamson, Office of engineering deficiencies in the firm Department of Housing and Urban Housing Assistance and Grant commitment application. Development, 451 Seventh Street, SW., Administration, Department of Housing and Contact: Faye Norman, Office of Housing Washington, DC 20410; telephone: (202) 708– Urban Development, 451 Seventh Street, Assistance and Grant Administration, 0614, extension 2696. SW., Washington, DC 20410; telephone: (202) Department of Housing and Urban • 708–0614, extension 2473. Regulation: 24 CFR 891.165. • Development, 451 Seventh Street, SW., Project/Activity: Accessible Space, Inc. Regulation: 24 CFR 891.165. Washington, DC 20410; telephone: (202) 708– (ASI) Jackson County, Phoenix, Arizona Project/Activity: Delaware House, 0614, extension 2482. Project Number: 126–HD028/OR16–Q991– Cocheton, Sullivan County, New York, • Regulation: 24 CFR 891.165. 002. Project Number: 012–HD081/NY36–Q981– Project/Activity: Montclair Senior Housing, Nature of Requirement: Section 891.165 002. Montclair, New Jersey, Project Number: 031– provides that the duration of the fund Nature of Requirement: Section 891.165 EE051/NJ39–S991–002. reservation for the capital advance is 18 provides that the duration of the fund Nature of Requirement: Section 891.165 months from the date of issuance with reservation for the capital advance is 18 provides that the duration of the fund limited exceptions up to 24 months, as months from the date of issuance with reservation for the capital advance is 18 approved by HUD on a case-by-case basis. limited exceptions up to 24 months, as months from the date of issuance with Granted By: John C. Weicher, Assistant approved by HUD on a case-by-case basis. limited exceptions up to 24 months, as Secretary for Housing-Federal Housing Granted By: John C. Weicher, Assistant approved by HUD on a case-by-case basis. Commissioner. Secretary for Housing-Federal Housing Granted By: John C. Weicher, Assistant Date Granted: December 27, 2001. Commissioner. Secretary for Housing-Federal Housing Reason Waived: Additional time needed Date Granted: November 8, 2001. Commissioner. for extensive environmental studies and a Reason Waived: The Sponsor/Owner Date Granted: December 19, 2001. public comment period in order for the experienced difficulty locating a qualified Reason Waived: Schedule conflicts Sponsor to receive HOME funds. contractor and incurred additional delays prevented the project from closing on the Contact: Frank Tolliver, Office of Housing trying to resolve legal problems and issues planned date. Assistance and Grant Administration, raised by the Town of Garberville. Contact: Rita Ross, Office of Housing Department of Housing and Urban Contact: Rita Ross, Office of Housing Assistance and Grant Administration, Development, 451 Seventh Street, SW., Assistance and Grant Administration, Department of Housing and Urban Washington, DC 20410; telephone: (202) 708– Department of Housing and Urban Development, 451 Seventh Street, SW., 0614, extension 3821. Development, 451 Seventh Street, SW., Washington, DC 20410; telephone: (202) 708– • Regulation: 24 CFR 891.165. Washington, DC 20410; telephone: (202) 708– 0614, extension 2696. Project/Activity: G.R. Vale Home, 0614, extension 2696. • Regulation: 24 CFR 891.165. Montclair, New Jersey, Project Number: 045– • Regulation: 24 CFR 891.410(c). Project/Activity: Home For Life (HFL) HD030/WV15–Q991–001. Project/Activity: Morse Manor Apartments, Ashtabula Homes, Pasadena, California, Nature of Requirement: Section 891.165 Morse, Louisiana, Project Number: 064– Project Number: 122–HD117/CA16–Q991– provides that the duration of the fund EE066. 001. reservation for the capital advance is 18 Nature of Requirement: Section 891.410(c) Nature of Requirement: Section 891.165 months from the date of issuance with limits occupancy to very low-income elderly provides that the duration of the fund limited exceptions up to 24 months, as persons, i.e., households of one or more reservation for the capital advance is 18 approved by HUD on a case-by-case basis. persons and at least one of the persons must VerDate 11 be 62 years of age at the time of initial Washington, DC 20410; telephone: (202) 708– § 902.68 for public housing authorities occupancy. 0001, extension 3517. (PHAs) to request a technical review of the Granted by: John C. Weicher, Assistant physical inspection results of their public Secretary for Housing-Federal Housing V. Regulatory Waivers Granted by the Office housing. Commissioner. of Public and Indian Housing Nature of Requirement: Section 902.68 of Date Granted: October 10, 2001. For further information about the following HUD’s Public Housing Assessment System Reason Waived: The waiver was granted waiver actions, please see the name of the regulations provides that a PHA that wishes due to the project’s inability to maintain contact person who immediately follows the a technical review of the physical inspection sustained occupancy. The property only has description of the waiver granted. results of the PHA’s public housing must 12 units occupied to date despite the • Regulation: 24 CFR 761.30(b)(2). submit its request no later than 15 days management agent’s extensive outreach and Project/Activity: Waiver request and following the issuance of the physical marketing to attract eligible individuals. extension of grant term for Fiscal Year 1998 inspection results to the PHA. Since the current occupancy level will not Public and Indian Housing Drug Elimination Granted By: Michael Liu, Assistant support the complex, the owner/management Program (PIHDEP) for the Spokane Indian Secretary for Public and Indian Housing. agent was granted permission to waive the Housing Authority (SIHA), Wellpinit, WA. Date Granted: October 19, 2001. elderly and very low-income requirement to Nature of Requirement: Section Reason Waived: As a result of the events alleviate the current occupancy and financial 761.30(b)(2) provides that terms of the grant of September 11, 2001, the New York City problems at the property. agreement may not exceed 12 months for the Housing Authority was unable to submit its Contact: Veronica C. Lewis, Office of Asset Assisted Housing Program, and 24 months request within the deadline set by the Management, Department of Housing and for the Public Housing Program. In regulation, and requested an extension. An Urban Development, 451 Seventh Street, accordance with this section, HUD may grant extension was granted. SW., Washington, DC 20410; telephone: (202) an extension of the grant term in response to Contact: Karen Newton, Office of Public 708–0614, extension 2597. a written request for an extension stating the and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street, IV. Regulatory Waivers Granted by the need for the extension and indicating the additional time required. SW., Washington, DC 20410; telephone: (202) Office of Multifamily Housing Assistance Granted By: Michael Liu, Assistant 708–1141. Restricturing (OMHAR) Secretary, Office of Public and Indian • Regulation: 24 CFR 903.5. For further information about the following Housing. Project/Activity: The New York City waiver actions, please see the name of the Date Granted: October 19, 2001. Housing Authority, New York, New York, contact person who immediately follows the Reason Waived: The SIHA has actively requested an extension of the deadline description of the waiver granted. pursued implementation of the approved established in § 903.5 for public housing • Regulations: 24 CFR 401.600. activities. The SIHA will continue to have a authorities (PHAs) to submit its Public Project/Activity: The following projects positive impact in the community. The Housing Agency Plan. requested waivers to the 12-month limit at continuation of the 1998 PIHDEP will ensure Nature of Requirement: Section 903.5 above-market rents (24 CFR 401.600): completion of the ‘‘Youth Wellness provides that a PHA must submit its Public Opportunity Center’’ activities and provide Housing Agency Annual Plan 75 days before FHA No. Project name State youth with positive alternatives to crime. the commencement of the PHA’s fiscal year. Contact: Deborah Lalancette, Director, Granted By: Michael Liu, Assistant 12335102 Catalina Square Apart- AZ Grants Management, Denver Program, Office Secretary for Public and Indian Housing. ments. of Native American Programs, 1999 Date Granted: October 19, 2001. 04235037 Central Park Place ...... OH Broadway, Suite 3390, Denver, CO 80202; Reason Waived: As a result of the events 06335178 Cerny Village Apart- FL telephone: (303) 675–1600, extension 3325. of September 11, 2001, the New York City ments. • Regulation: 24 CFR 902.60. Housing Authority was unable to make 05335671 Cherry Hotel I & II ...... NC Project/Activity: The New York City submit its plan by the deadline set by the 08335264 Directions Apartments KY Housing Authority, New York, New York, regulation, and requested an extension. An 05435433 Druid Hills Apartments SC requested an extension of the deadline set by extension was granted. 04335213 Focus 45 ...... OH § 902.60 for public housing authorities Contact: Rod Soloman, Office of Deputy 05235351 Montpelier-Kennedy MD (PHAs) to submit their fiscal year-end Assistant Secretary for Policy Program and Apartments. financial information and management Legislative Initiatives, Office of Public and 10335074 North Omaha Homes ... NE operation information. Indian Housing, Department of Housing and 07390014 Parkwood Apartments IN Nature of Requirement: Section 902.60 of Urban Development, 451 Seventh Street, 06535272 The Village Apartments MS HUD’s Public Housing Assessment System SW., Washington, DC 20410; telephone: (202) 05435397 Wisewood Apartments SC regulations provides that a PHA that must 708–0713. submit its fiscal year-end financial • Regulation: 24 CFR 972.200. Nature of Requirement: Section 401.600 information and management operation Project/Activity: The New York City requires that projects be marked down to information not later than two months after Housing Authority, New York, New York, market rents within 12 months of their first the end of the PHA’s fiscal year. requested an extension of the deadline expiration date after January 1, 1998. The Granted By: Michael Liu, Assistant established in § 972.200 for public housing intent of this provision is to ensure timely Secretary for Public and Indian Housing. authorities (PHAs) to complete their initial processing of requests for restructuring, and Date Granted: October 19, 2001. assessment of public housing stock. that the properties will not default on their Reason Waived: As a result of the events Nature of Requirement: Section 972.200 FHA insured mortgages during the of September 11, 2001, the New York City establishes the deadline by which PHAs must restructuring process. Housing Authority was unable to submit its complete their initial assessment of public Granted By: Ira Peppercorn, Director of financial information and management housing stock and submit their certification OMHAR. operation information by the deadline set by to HUD that the initial assessment has been Date Granted: November 27, 2001. the regulation, and requested an extension. completed. Reasons Waived: The attached list of An extension was granted. Granted By: Michael Liu, Assistant projects was not assigned to the PAEs in a Contact: Karen Newton, Office of Public Secretary for Public and Indian Housing. timely manner or the restructuring analysis and Indian Housing, Department of Housing Date Granted: October 19, 2001. was unavoidably delayed due to no fault of and Urban Development, 451 Seventh Street, Reason Waived: As a result of the events the owner. SW., Washington, DC 20410; telephone: (202) of September 11, 2001, the New York City Contact: Alberta Zinno, Office of 708–1141. Housing Authority was unable to complete Multifamily Housing Assistance • Regulation: 24 CFR 902.68 its initial assessment of public housing stock Restructuring, Department of Housing and Project/Activity: The New York City by the required deadline and requested a 90- Urban Development, Portals Building, Suite Housing Authority, New York, New York, day extension for completion and 400, 1280 Maryland Avenue, SW., requested an extension of the deadline set by submission, which was granted. VerDate 11 Contact: Rod Solomon, Office of Deputy Development, 451 Seventh Street, SW., Project/Activity: The New York City Assistant Secretary for Policy Program and Washington, DC 20410; telephone: (202) 708– Housing Authority, New York, New York, Legislative initiatives, Office of Public and 0477. requested a waiver of the deadline set by Indian Housing, Department of Housing and • Regulation: 24 CFR 983.51(a) and (b). § 985.101 to submit its Section 8 Urban Development, 451 Seventh Street, Project/Activity: Housing and Community Management Assessment Program (SEMAP) SW., Washington, DC 20410; telephone: (202) Development Corporation of Hawaii, certification. 708–0713. Honolulu, HA, project-based assistance Nature of Requirement: Section 985.101 • Regulation: 24 CFR 983.51(c). (PBA) program. Palolo Valley Homes was requires a PHA to submit its SEMAP Project/Activity: Housing and Community previously owned by the State of Hawaii and certification within 60 days after the end of Development Corporation of Hawaii, is part of an overall privatization effort of the fiscal year. Granted By: Michael Liu, Assistant Honolulu, HA, project-based assistance state-owned public housing units. The Secretary for Public and Indian Housing. program. The Housing and Community Department previously granted a waiver to Date Granted: October 19, 2001. Development Corporation of Hawaii the Housing and Community Development Reason Waived: As a result of the events requested a waiver to permit it to limit the Corporation of Hawaii to attach PBA to of September 11, 2001, the New York City unit selection policy to site-specific state- Palolo Valley Homes. Housing and Housing Authority was unable to submit its owned public housing projects that it Community Development Corporation of certification by the deadline set by the planned to privatize. The developments are Hawaii requested the waiver to permit it to regulation, and requested an extension. An located in the areas of Kallihi, Waianae, sole source the selection of the developer, extension was granted. Waipahu and Palolo. Mutual Housing Association of Hawaii Contact: Gerald Benoit, Director, Real Nature of Requirement: Section 983.51(c) (MHAH), which has formed a collaborative requires that the written selection policy for Estate and Housing Performance Division, effort with the residents of the development Office of Public and Assisted Housing competitive selection of units to receive to acquire and rehabilitate 306 units. MHAH project-based assistance identify and specify Delivery, Office of Public and Indian has already been awarded tax credits through Housing, Department of Housing and Urban the weight to be given to the consideration a completive selection process under the of site and design. Development, 451 Seventh Street, SW., Room State of Hawaii’s qualified allocation plan. In 4210, Washington, DC 20410; telephone: Granted By: Michael Liu, Assistant addition MHAH has secured financing from Secretary for Public and Indian Housing. (202) 708–0477, extension 3517. the Neighborhood Reinvestment Corporation • Date Granted: October 4, 2001. and the State’s Rental Housing Trust Fund Regulation: 24 CFR 985.101. Reason Waived: Approval of the waiver toward the rehabilitation effort. Project/Activity: The City of New York minimized the loss of existing low-income Nature of Requirement: Sections 983.51(a) Department of Housing Preservation and housing units. Development (HPD), New York, New York, and (b) require HUD review and approval of Contact: Gerald Benoit, Director, Real requested a waiver of the deadline set by a written selection policy and advertisement Estate and Housing Performance Division, § 985.101 to submit its Section 8 for the competitive selection of units to Office of Public and Assisted Housing Management Assessment Program (SEMAP) receive project-based assistance. Delivery, Office of Public and Indian certification. Granted By: Michael Liu, Assistant Housing, Department of Housing and Urban Nature of Requirement: Section 985.101 Secretary for Public and Indian Housing. Development, 451 Seventh Street, SW., requires a PHA to submit its SEMAP Date Granted: November 30, 2001. Washington, DC 20410; telephone: (202) 708– certification within 60 days after the end of Reason Waived: Approval of the waiver 0477. the fiscal year. minimized the loss of existing low-income • Regulation: 24 CFR 983.51(a), (b) and (c); Granted By: Michael Liu, Assistant housing units. Secretary for Public and Indian Housing. 24 CFR 983.55 (a) and (d). Contact: Gerald Benoit, Director, Real Project/Activity: Oklahoma City Housing Date Granted: October 19, 2001. Estate and Housing Performance Division, Reason Waived: As a result of the events Authority (OCHA), Oklahoma, Oklahoma Office of Public and Assisted Housing City, OK, project-based assistance (PBA) of September 11, 2001, HPD was unable to Delivery, Office of Public and Indian submit its certification by the deadline set by program. OCHA requested the waivers to Housing, Department of Housing and Urban permit it to provide project-based subsidies the regulation, and requested an extension. Development, 451 Seventh Street, SW., An extension was granted. for 45 units in Pershing Center, a project Washington, DC 20410; telephone: (202) 708– being developed by CityCare in Oklahoma Contact: Gerald Benoit, Director, Real 0477. Estate and Housing Performance Division, City to house homeless men and couples. • CityCare’s Pershing Center application was Regulation: 24 CFR 984.303(b)(2). Office of Public and Assisted Housing selected under HUD’s 2000 Continuum of Project/Activity: Vermont State Housing Delivery, Office of Public and Indian Care Homeless Assistance competition. Authority, Family Self-Sufficiency (FSS) Housing, Department of Housing and Urban Pershing Center will consist of 60 dwelling Program. Development, 451 Seventh Street, SW., Room units, 45 of which will have PBA attached. Nature of Requirement: The regulation 4210, Washington, DC 20410; telephone: The HOME funds and Continuum of Care requires public housing agencies (PHAs) to (202) 708–0477, extension 3517. Homeless Assistance grant funds received for establish an interim goal for families in the • Regulation: 24 CFR 1000.214. Pershing Center will be used for construction FSS contract of participation and the goal Project/Activity: Waiver request for late and supportive services and operating must require each family to remain submission of the Indian Housing Plan (IHP) expenses. independent from welfare assistance for at for the Pinoleville Indian Reservation, Ukiah, Nature of Requirement: Sections 983.51(a), least one year before expiration of the term CA. (b) and (c) and 983.55(a) and (d) require HUD of the FSS contract of participation. Nature of Requirement: Section 1000.214 review and approval of a written selection Granted By: Michael Liu, Assistant provides that recipients must initially send policy and advertisement for the competitive Secretary for Public and Indian Housing. the IHP to the Area Office of Native selection of units to receive project-based Date Granted: December 7, 2001. American Programs (ONAP) no later than assistance. Reason Waived: The waiver allowed a July 1. Grant funds cannot be provided until Granted By: Michael Liu, Assistant highly successful FSS program participant the plan is submitted and determined to be Secretary for Public and Indian Housing. who obtained a career position and no longer in compliance with section 102 of the Native Date Granted: October 17, 2001. needed rental assistance to receive the funds American Housing Assistance and Self- Reason Waived: Approval of the waivers in her FSS escrow account. Determination Act (NAHASDA) of 1996. will provide supportive housing for formerly Contact: Kathryn Greenspan, Housing Granted By: Michael Liu, Office of the homeless men and couples. Program Specialist, Office of Public and Assistant Secretary, Public and Indian Contact: Gerald Benoit, Director, Real Indian Housing, Department of Housing and Housing. Estate and Housing Performance Division, Urban Development, 451 Seventh Street, Date Granted: October 9, 2001. Office of Public and Assisted Housing SW., Room 4226, Washington, DC 20410; Reason Waived: The IHP for Fiscal Year Delivery, Office of Public and Indian telephone: (202) 708–0744, extension 4055. 2001 was received by the Southwest ONAP Housing, Department of Housing and Urban • Regulation: 24 CFR 985.101. on July 3, 2001, two days after the regulatory VerDate 11 deadline. The Tribe indicated that the IHP Indian Housing Block Grant for the Turtle the Indian Health Service and HUD’s Real was submitted late due to the resignation of Mountain Tribe, Belcourt, ND. Estate Assessment Center to have black mold the Housing Director and emergency medical Nature of Requirement: Section 1000.312 that would pose a severe health and safety situations. provides that current assisted stock consists problem to the occupants. These units will be Contact: Deborah Lalancette, Director, of housing units owned or operated pursuant demolished and replaced using non-1937 Act to an Annual Contributions Contract. This Grants Management, Denver Program ONAP, funds. includes all low rent, Mutual Help, and Department of Housing and Urban Contact: Deborah Lalancette, Director, Development, 1999 Broadway, Suite 3390, Turnkey III housing units under management as of September 30, 1997, as indicated in the Grants Management, Denver Program ONAP, Denver, CO 80202; telephone: (303) 675– Formula Response Form. Department of Housing and Urban 1600, extension 3325. Granted By: Michael Liu, Assistant Development, 1999 Broadway, Suite 3390, • Regulation: 24 CFR 1000.312. Secretary, Office of Public and Indian Denver, CO 80202; telephone: (303) 675– Project/Activity: Request to waive the Housing. 1600, extension 3325. regulatory requirement to remove Date Granted: October 27, 2001. demolished 1937 Act Housing Units from Reason Waived: The units were found by [FR Doc. 02–9859 Filed 4–22–02; 8:45 am] formula current assisted stock under the the Centers for Disease Control Preservation, BILLING CODE 4210–32–P VerDate 11 Part X Department of Transportation Federal Railroad Administration 49 CFR Parts 216 and 238 Passenger Equipment Safety Standards; Final Rule VerDate 11 DEPARTMENT OF TRANSPORTATION 21, 1997. FRA considered the comments substituted throughout this part for the received on the NPRM and advice from phrases ‘‘the FRA Regional Director for Federal Railroad Administration its Working Group in preparing a final Railroad Safety,’’ ‘‘the FRA Regional rule establishing comprehensive safety Director of Railroad Safety,’’ ‘‘a Regional 49 CFR Parts 216 and 238 standards for railroad passenger Director,’’ and ‘‘the Regional Director.’’ [FRA Docket No. PCSS–1, Notice No. 7] equipment, which was published on For a discussion of FRA’s amendments May 12, 1999. See 64 FR 25540. to this section, see 64 FR 25575. RIN 2130–AB48 Following publication of the final Amendments to 49 CFR Part 238 rule, parties filed petitions seeking Passenger Equipment Safety FRA’s reconsideration of requirements Subpart A—General Standards in the rule. These petitions principally Section 238.1 Purpose and Scope AGENCY: Federal Railroad related to the following subject areas: Administration (FRA), Department of structural design; fire safety; training; FRA has amended this section by Transportation (DOT). inspection, testing, and maintenance; restoring paragraphs (c)(1)–(3) of the May 12, 1999 final rule. See 64 FR ACTION: and movement of defective equipment. Final rule; response to petitions 25661. These paragraphs were for reconsideration. On July 3, 2000, FRA issued a response to the petitions for reconsideration unintentionally omitted from the rule SUMMARY: This document responds to concerning the final rule’s requirements when FRA amended paragraph (c) in the certain of the petitions for for the inspection, testing, and July 3, 2000 petition for reconsideration reconsideration of FRA’s May 12, 1999 maintenance of passenger equipment, response document. See 65 FR 41305. final rule establishing comprehensive the movement of defective passenger Section 238.3 Applicability Federal safety standards for railroad equipment, and other related, Following publication of the final passenger equipment. This document miscellaneous provisions. See 65 FR rule, an issue arose involving the clarifies and amends the final rule. 41284. FRA is hereby responding to all circumstances in which a railroad may remaining issues raised in the petitions EFFECTIVE DATE: The amendments to the use the exclusion from the requirements for reconsideration other than those final rule are effective June 24, 2002. of the rule applicable to ‘‘tourist, scenic, issues concerning the fire safety portion FOR FURTHER INFORMATION, CONTACT: historic, or excursion operations,’’ as of the final rule. This notice also Ronald Newman, Staff Director, Motive specified in paragraph (c)(3). The issue clarifies the final rule in response to Power and Equipment Division, Office concerned whether a train consisting of other issues and requests for of Safety Assurance and Compliance, new passenger equipment could be interpretation that have arisen since FRA, 1120 Vermont Avenue, Mail Stop operated with passengers (principally publication of the rule. The 25, Washington, DC 20590 (telephone: business and government officials) for amendments contained in this notice 202–493–6300); Daniel Alpert, Trial demonstration purposes without generally clarify requirements currently Attorney, Office of Chief Counsel, FRA, complying with the requirements of the contained in the final rule or allow for 1120 Vermont Avenue, Mail Stop 10, rule. As FRA explained, such a train greater flexibility in complying with the Washington, DC 20590 (telephone: 202– operation is subject to the requirements rule, and are within the scope of the 493–6026); or Thomas Herrmann, Trial of the rule and does not fall under the issues and options discussed, Attorney, Office of Chief Counsel, FRA, exclusion in paragraph (c)(3). FRA is considered, or raised in the NPRM. FRA 1120 Vermont Avenue, Mail Stop 10, amending the definition of ‘‘tourist, will address the issues raised in the Washington, DC 20590 (telephone: 202– scenic, historic, or excursion petitions for reconsideration concerning 493–6036). operations’’ in § 238.5 to clarify this fire safety by separate notice in the SUPPLEMENTARY INFORMATION: point, as discussed below. Federal Register. Background The specific issues and Section 238.5 Definitions On June 17, 1996, FRA published an recommendations raised by the FRA is amending the definition of ‘‘in Advance Notice of Proposed petitioners and FRA’s response to those service’’ to make clear that passenger Rulemaking (ANPRM) concerning the petitions are discussed in detail in the equipment is ‘‘in service’’ when it is in establishment of comprehensive safety ‘‘Section-by-Section Analysis’’ portion passenger or revenue service in the standards for railroad passenger of the preamble, below. The section-by- United States. See the discussion of equipment. See 61 FR 30672. The section analysis also contains a detailed § 238.201, below, for an explanation of ANPRM provided background discussion of each provision of the final this clarification. FRA has also made a information on the need for such rule which FRA has clarified or conforming change to this definition by standards, offered preliminary ideas on amended. This will enable the regulated substituting section ‘‘238.305(d)’’ for approaching passenger safety issues, community to more readily compare section ‘‘238.305(c)(5).’’ Section and presented questions on various this document with the preamble 238.305(c)(5) was amended by the July passenger safety topics. Following discussions contained in both the final 3, 2000 response to petitions for consideration of comments received on rule and the July 3, 2000 response reconsideration. See 65 FR 41308. the ANPRM and advice from FRA’s document, and will thereby aid in FRA is amending the definition of Passenger Equipment Safety Standards understanding the requirements of the ‘‘MIL–STD–882C’’ to remove the ‘‘C’’ Working Group (Working Group), FRA rule. designation. The final rule cited MIL– published a Notice of Proposed Section-by-Section Analysis STD–882C as a formal safety Rulemaking (NPRM) on September 23, methodology to guide railroads in 1997, to establish comprehensive safety Amendments to 49 CFR Part 216 identifying and then eliminating or standards for railroad passenger FRA is revising §§ 216.17 and 216.23 reducing the risk posed by a hazard to equipment. See 62 FR 49728. In to correct typographical errors resulting an acceptable level. MIL–STD–882 was addition to written comment on the from the final rule’s amendments to part updated on February 10, 2000, and NPRM, FRA also solicited oral comment 216. These occurred when the phrase designated as MIL–STD–882D, at a public hearing held on November ‘‘the FRA Regional Administrator’’ was superceding MIL–STD–882C. (FRA has VerDate 11 placed a copy of MIL–STD–882D in the movements. See 64 FR 25667. Following safety-related functionality, or both. public docket for this rulemaking.) This publication of the final rule, the APTA cautioned that the definition amendment makes clear that a railroad National Railroad Passenger Corporation should distinguish between software may use MIL–STD–882D. (Amtrak) raised the concern that the changes of a minor nature that have no FRA is removing the definition of phrase ‘‘restricted speed not to exceed safety impact and significant software ‘‘monocoque’’ and adding the new 20 mph’’ has a specific meaning which changes, modifications, or upgrades that definition ‘‘semi-monoque’’ in its place. is different from simply stating that the could have a safety impact. APTA The term ‘‘semi-monocoque’’—not ‘‘speed . . . shall be restricted to 20 believed that, through its requested ‘‘monocoque’’—was expressly used in mph or less,’’ as used in paragraph clarifications to this section, railroads the final rule text. Further, the (d)(2)(ii). FRA did not intend that the could implement minor software definition of ‘‘monocoque’’ in the final speed restriction in paragraph (e)(2)(ii) upgrades without triggering the full rule actually described a ‘‘semi- be different than the one specified in requirements of this section. monocoque’’ structure by stating that paragraph (d)(2)(ii), and FRA believes FRA agrees that hardware or software the shell or skin acts as a single unit that the way in which the speed used to control or monitor safety ‘‘with the supporting frame’’ to resist restriction is stated in paragraph functions in passenger equipment is and transmit the loads acting on the (d)(2)(ii) more accurately reflects FRA’s ‘‘materially modified’’ when structure. Reliance on the supporting intent. Consequently, for consistency microprocessor-based hardware frame to help resist and transmit loads– and to avoid confusion, FRA has components are added to the passenger as opposed to resisting and transmitting amended paragraph (e)(2)(ii) to state equipment, and when changes are made loads on the shell or skin alone—makes that the speed of the train shall be to existing microprocessor-based a structure ‘‘semi-monocoque,’’ and restricted to 20 mph or less. hardware components that provide the FRA has clarified the rule accordingly. vehicle with a new safety-related FRA is amending the definition of Subpart B—Safety Planning and General capability, or safety-related ‘‘tourist, scenic, historic, or excursion Requirements functionality, or both. FRA also believes operations,’’ as noted above. As defined Section 238.105 Train Electronic that the term encompasses significant in § 238.5 of the final rule, ‘‘tourist, Hardware and Software Safety software changes, modifications, or scenic, historic, or excursion upgrades that could have a safety operations’’ means railroad operations This section applies to electronic impact. For instance, revision of that carry passengers, often using systems, subsystems and components executive software has the potential to antiquated equipment, with the used to control or monitor safety fundamentally affect the safety-relevant conveyance of the passengers to a functions in passenger equipment characteristics of a system. Although particular destination not being the ordered on or after September 8, 2000, FRA does not suggest that every ‘‘patch’’ principal purpose.’’ FRA recognizes that and to such systems, subsystems and designed to address an error or a train consisting of new passenger components implemented or materially vulnerability would subject a system to equipment that is operated for modified in new or existing passenger this section’s requirements, significant demonstration purposes is seemingly equipment on or after September 9, revision of code that alters the basic not conveying passengers to a particular 2002. Inclusion of these requirements in logic or protocols of the system should destination as its principal purpose. passenger equipment reflects the prompt a safety review. When a review However, the very usage of new growing role of automated systems to is required, a railroad must examine the passenger equipment, as opposed to control or monitor passenger train safety safety risks resulting from a change to antiquated equipment, and the clear functions. For example, most new the hardware and software components business purposes of the train, locomotives are controlled by used in monitoring or controlling safety distinguish such demonstration train microprocessors that respond to functions, including new risks not operations from the class of train operator commands while making previously present and existing risks operations FRA intended to exclude numerous automatic adjustments to whose nature is affected by the change. from the requirements of the rule under locomotive systems to ensure efficient FRA recognizes that the requirements § 238.3(c)(3). Any person wishing to operation. FRA has renamed this section of § 238.105 lend themselves best to the operate such a demonstration train that ‘‘Train electronic hardware and software design, analysis, and testing of hardware does not comply with a requirement of safety’’ since the focus of this section is and software components used to the rule must file a request for a waiver on electronic hardware and software— control or monitor safety functions in and obtain FRA’s approval on the not on all hardware components as the new passenger equipment. A formal waiver request prior to commencing the term is generically used. safety program is necessary to ensure demonstration train’s operation. In its petition for reconsideration, the the compatibility and safety of all the American Public Transportation various hardware and software Section 238.15 Movement of Passenger Association (APTA) requested that the components used to control or monitor Equipment With Power Brake Defects term ‘‘materially modified’’ be safety functions in newly constructed FRA is modifying the requirements in specifically defined for purposes of the equipment. FRA does not intend that paragraph (e)(2) that concern the application of this section. APTA the material modification of an existing movement of a passenger train with suggested that hardware or software hardware or software component used inoperative power brakes on the front or used to control or monitor safety to control or monitor safety functions in rear vehicle in instances where a functions in passenger equipment is passenger equipment result in the handbrake on such a vehicle may not be ‘‘materially modified’’ in at least the analysis and testing of all such accessible to a member of the train crew following circumstances: when components in the equipment to the or may be located outside the interior of microprocessor-based hardware same extent as if the equipment were the vehicle. In the final rule, paragraph components are added; and when newly constructed. To the extent risk (e)(2)(ii) required that the train be changes are made to existing can be partitioned through preliminary operated at ‘‘restricted speed not to microprocessor-based hardware analysis, the focus of the analysis and exceed 20 mph,’’ as one of the components that provide the vehicle testing required by a ‘‘material restrictions imposed on such with a new safety-related capability, or modification’’ is placed on the VerDate 11 materially modified component, the safe systems in 49 CFR part 236. Further, As stated in the final rule, paragraph operation of the component in GETS contended that because the (c) provided in part that software that controlling or monitoring a safety definition of a ‘‘safety-critical’’ function controls or monitors safety functions be function, and the compatibility of that includes a function that ‘‘increases the considered safety-critical unless a component with the existing risk of damage to passenger equipment,’’ completely redundant, failsafe, non- infrastructure, including whether the the requirements could be interpreted to software means ensuring the same modification affects the safe operation mean that any microprocessor that may function is provided. Paragraph (d) of other components that control or be utilized for reliability purposes alone required that hardware and software monitor safety functions. must also be designed and implemented that controls or monitors passenger FRA notes that the issue APTA has in a fail-safe manner. GETS stated that equipment safety functions include raised is similar to one facing FRA in a it has conducted a preliminary hazard design feature(s) that result in a safe rulemaking on Standards for analysis and functional fault tree on its condition in the event of a hardware or Development and Use of Processor- Genesis locomotive microprocessor- software failure. See 64 FR 25671. FRA Based Signal and Train Control based systems in accordance with the is aware of specific electronic system Systems, published as an NPRM on practices and criteria specified in failures that have occurred on passenger August 10, 2001. See 66 FR 42352; Institute of Electrical and Electronics and freight locomotives that have Docket No. FRA–2001–10160. Through Engineers, Inc., (IEEE) Standard 1483, presented safety concerns. As the rulemaking, FRA seeks to ensure the manufacturers intensify use of safety of processor-based signal and ‘‘Standard for the Verification of Vital Functions in Processor-Based Systems commercial off-the-shelf operating train control systems in light of rapid systems and attempt greater integration and significant changes in locomotive Used in Rail Transit Control.’’ GETS cited these as standard tools employed of on-board functions (including design. FRA is also examining the eventually train control), the potential appropriate relationship between train throughout the rail and transit industries for many years, and believed for uncovered hazards will increase control systems and locomotive control unless action is taken to ensure greater that they constitute an equivalent, systems, such as those subject to the rigor in safety analysis and testing alternate approach for applying a requirements of this section. Because before products are brought to market. the rulemaking is focused on the safety ‘‘formal safety methodology’’ to the However, on reconsideration, FRA of electronic control systems, it may hardware and software safety program agrees that this language is ultimately lead FRA to amend or clarify specified in paragraph (b). GETS also the requirements of this section of the noted that it has completed Failure unnecessarily broad in requiring that all Passenger Equipment Safety Standards Modes and Effects Analyses (FMEA’s). hardware and software that controls or for purposes of consistency. As a result, GETS further stated that it has a monitors passenger equipment safety FRA expects to consider further the comprehensive and robust process for functions in effect be designed to fail requirements of this section as a whole designing, developing, and testing safely in the event of a hardware or software failure. Consequently, FRA has with the Working Group as part of the software used in safety-related amended this section by deleting the second phase of the Passenger applications. It explained that this first sentence in paragraph (c) and by Equipment Safety Standards process includes well-defined software amending paragraph (d) to focus the rulemaking. design requirements, quality assurance requirement for vitality or functional Following publication of the final practices, and exhaustive pre-revenue rule, an issue was raised as to the redundancy on two key systems. First, verification and validation testing. In hardware and software that controls or application of § 238.105 to cab signal addition, GETS stated that formal systems. Cab signal systems are monitors a train’s primary braking technical reviews are conducted as system shall fail safely by initiating a governed by 49 CFR part 236 and are necessary at various phases in the affected by the requirements of full service brake application in the software development program event of a hardware or software failure; § 238.105 only to the extent they are including during development of the commingled with other cab electronic or access to direct manual control of the software specifications, the software systems (which currently should not be primary braking system (both service design document, the software test plan, the case). The rulemaking on Standards and emergency braking) shall be and as part of the line-by-line code for Development and Use of Processor- provided to the engineer. In the Based Signal and Train Control Systems review. According to GETS, these preamble to the final rule, FRA is specifically devoted to the safety of software design, development, and explicitly stated that in the case of processor-based signal and train control verification and validation practices primary braking systems, electronic systems. have produced highly reliable controls must either fail safely (resulting FRA also notes that General Electric microprocessor-based systems that have in a full service brake application) or Transportation Systems (GETS) has proven to be safe and effective with access to full pneumatic control must be raised concern that strict compliance to hundreds of P42 locomotive-years and provided. See 64 FR 25591. Second, the requirements of § 238.105 would over 100 million miles in revenue hardware and software that controls or result in a significant incremental service. GETS suggested that monitors the electronic ability to shut change to the complexity, consideration be given to accepting the down the main power and fuel intake sophistication, and integrity required for current, proven microprocessor-based system shall either fail safely by all locomotive safety-related systems systems as implemented, and limiting shutting down the main power and which interface with or include a the new requirements for software intake of fuel in the event of an microprocessor. GETS stated that vitality to the next generation or the uncovered system failure; or the ability § 238.105(d) of the final rule could be introduction of new technology train to shut down the main power and fuel interpreted to mean that any computer control systems, consistent with the intake system by non-electronic means involved in safety-related functions rulemaking on Standards for shall be provided to the train crew. FRA must be designed to be ‘‘fail-safe’’ or Development and Use of Processor- desires that the train crew have the ‘‘vital’’ similar to the requirements Based Signal and Train Control ability to shut down the main power applied to signal and train control Systems. and fuel intake system in the event of VerDate 11 a collision, derailment, or fire, in modes and effects criticality analyses, as modification of the final rule is particular, to mitigate the consequences well as validation and verification warranted. Of course, FRA will of such occurrences. This has long been testing—all elements of the hardware reasonably enforce the requirements for identified as a safety requirement for and software safety program. submission and approval of test plans. fossil-fuel locomotives. See 49 CFR For instance, FRA notes that Section 238.109 Training, § 229.93. Obviously, it may also be § 238.111(b)(2) requires that a copy of a Qualification, and Designation Program critical to be able to reduce power to test plan be submitted to FRA at least 30 avoid or mitigate the seriousness of an FRA is amending paragraph (b)(6) to days prior to conducting the testing. accident to begin with, regardless of the make clear that a railroad may offer to This 30-day period is for the benefit of type of motive power. its employees and contractors the option FRA to allow sufficient time to review FRA notes for clarity that the of taking an oral examination—instead the test plan and arrange for FRA to reference to reliability in paragraph (c), of a written examination—covering the witness the testing, as necessary. In which is retained from the final rule, equipment and tasks for which they are some cases the approval, coordination, arises only within the context of responsible. As originally promulgated, and testing may be able to be systems that control or monitor safety paragraph (b)(6) stated that such accomplished in less than 30 days. functions, as stated in the initial text of contractors and employees were the section. It is important that such required to pass a written examination. Section 238.113 Emergency Window systems be available and function as However, in the preamble to the final Exits intended, since otherwise they may be rule, FRA explained that paragraph (b) In its petition for reconsideration, circumvented out of expediency. FRA ‘‘requires that employees pass either a APTA requested clarification of four does not intend to address reliability of written or oral examination.’’ See 64 FR issues concerning this section. First, electronic systems except in this 25593. Consistent with the preamble APTA requested that FRA clarify the context. discussion, FRA did not intend to meaning of ‘‘main level’’ as applied to As a separate matter, FRA notes that restrict a railroad from offering oral gallery-type cars such as those operated it has amended paragraph (c) to add the examinations to its employees and by the Northeast Illinois Regional phrase ‘‘hardware and software’’ where contractors. Consequently, FRA has Commuter Railroad Corporation (Metra). the word ‘‘software’’ previously was amended paragraph (b)(6) of this section APTA stated that approximately 30% of written. As paragraph (c) concerns the to effectuate this intent. the seating capacity of these gallery cars requirements of a hardware and is located in four separate gallery areas. Section 238.111 Pre-Revenue Service software safety program, and the APTA asked whether each of these Acceptance Testing Plan software and hardware work as a galleries is a main level, or whether only system, both components of the system This section provides requirements the lower level of the car—containing should logically be identified together. for pre-revenue service testing of 70% of the seating—is a main level. This arises out of the nature of the passenger equipment and relates to APTA stated that Metra would equip systems and merely clarifies the intent subpart G, which describes gallery areas with emergency window of the final rule. FRA has made a similar requirements for the procurement of exits as they buy new cars and as they change to paragraph (b). Tier II passenger equipment and for a overhaul existing cars but could not add Finally, with respect to GETS’s major upgrade or introduction of new emergency windows to gallery areas by suggestion to use IEEE 1483 as a formal technology that could affect a Tier II November 8, 1999. safety methodology for purposes of passenger equipment safety system. FRA recognizes that the term ‘‘main complying with the hardware and In its petition for reconsideration, level’’ was not defined in the final rule. software safety program requirements, Amtrak noted that § 213.345 of the Nor did FRA intend to define ‘‘main FRA notes that this IEEE consensus Track Safety Standards already contains level’’ strictly based on a percentage of standard developed by the rail transit an approval process for equipment passenger car seating capacity. FRA’s industry focuses principally on the qualification testing, and that §§ 238.21 use of the term ‘‘main level’’ was verification process, which is only an and 238.111 require the submission of intended to exclude from the element of the entire hardware and test plans for FRA approval in the case requirements of this section a level of a software safety program described in of Tier II passenger equipment. Amtrak car that is principally used for passage paragraph (b) and required by paragraph believed that the requirement to submit between the door exits and passenger (a). As a general matter, IEEE 1483 does and obtain approval of pre-revenue seating areas, or between passenger not address safety validation; the service acceptance testing plans could seating areas. Such an area is not definition of requirements for safe substantially delay equipment testing. principally used for seating and operation; hazard severity and FRA has explained that it desires includes a stairwell landing between the frequency assessment; hazard causes, closer monitoring of Tier II passenger two main levels of a conventional ‘‘bi- effects and resolutions; or system and equipment because of safety concerns level’’ car. A conventional bi-level car development design. While use of IEEE associated with the higher speeds at has two main levels—an upper and a 1483 is appropriate for purposes of which this equipment will travel. lower level—that are principally used hardware and software safety Although closer monitoring may for passenger seating. verification, its use alone is not lengthen the testing process for this As FRA understands, the Metra cars sufficient for purposes of complying equipment, FRA believes that safety is referenced by APTA are equipped with with the hardware and software safety better and more efficiently promoted by eight emergency window exits. Four program requirements in this section. identifying safety concerns prior to emergency window exits are located on Nonetheless, the steps GETS has placing the equipment in passenger each main level. The four separate described to provide for hardware and service. While the Track Safety gallery areas are located on the upper software safety in its P42 locomotives Standards focus on track/vehicle level of the cars; one gallery area is indicate that GETS is in at least interaction, the plan required by this located on each side of each end of the substantial compliance with the section permits a broader examination cars; and each gallery area has one requirements of this section. GETS of the equipment’s safety. Accordingly, emergency window exit. On this basis, specifically cited performing failure FRA does not believe that a FRA makes clear that the Metra cars are VerDate 11 in compliance with paragraph (a) of this paragraph (a)(1) does not require moved away from the opening’s section. emergency window exits to be placed at clearance without requiring the use of a Second, APTA requested that the rule the extreme ends of a passenger car. tool or other implement. As a result, a not require emergency window exits to Third, APTA requested that FRA seat back that can be manually reclined be placed at the ends of a passenger car clarify the meaning of ‘‘unobstructed away from the minimum required 26- if staggering the window exits is not opening’’ in paragraph (b). APTA inch by 24-inch emergency window exit practical. APTA believed that, since suggested that an opening is obstructed opening would not obstruct the opening windows at car ends are more likely to only if an obstacle prevents or for purposes of this paragraph. be damaged and rendered unusable in a significantly delays the removal of a Finally, APTA requested that FRA collision, the rule should provide window, noting that seats and seat clarify the meaning of ‘‘rapid and easy railroads the flexibility to place window backs can help in an evacuation by removal’’ in paragraph (a)(3). APTA exits at the locations that will most providing passengers a surface to stand asked if this paragraph requires that the effectively allow for passengers to exit a on and hold as they pass through the window be designed to permit rapid car in an emergency. window. APTA also mentioned that and easy removal from not only the FRA agrees that emergency window some of the larger emergency window inside of a passenger car but also from exits need to be distributed throughout exits weigh more than fifty pounds, and the outside of the car as well. FRA is a passenger car so as to maximize that seat backs provide a surface on amending the paragraph to make clear passenger egress in a life-threatening which to place these windows safely. that the emergency window exits situation. As the discussion in the final Amtrak, in its petition for required by this section need only be rule explains, safety is advanced by reconsideration, similarly requested that designed to permit rapid and easy staggering the configuration of the term ‘‘unobstructed opening’’ be removal from the inside of the car emergency window exits—instead of defined to make clear that items such as without requiring the use of a tool or placing the exits directly across from seat backs that project in front of the other implement. As paragraph (a) each other on opposite sides of the car— window but do not prevent removal of applies to both new and existing and distributing the window exits as the emergency window do not violate passenger cars, FRA did not intend to uniformly as practical throughout the the requirements of this section. Amtrak require a retrofit of existing passenger car. See 64 FR 25596. For a main level stated that, since the purpose of this cars so that the windows could also be of a typical passenger car, this can be section is to ensure ready access to and accessed by emergency responders from conceptualized as follows: Divide the easy removal of the windows, objects the outside without requiring the use of car longitudinally into four equal such as seat backs should be allowed in a tool or other implement. Nevertheless, quadrants from the forward (A) end to front of the window opening so long as pursuant to 49 CFR 223.9(d), each the rear (B) end; number the quadrants they do not impair access to and rapid window intended for emergency access one through four, running from the A and easy removal of the window in an by emergency responders for extricating end to the B end; place one window in emergency. passengers from both new and existing each quadrant; and locate the windows FRA notes that the NTSB, in passenger cars must be clearly marked in the first and third quadrants on the commenting on the NPRM, stated that and have clear and understandable opposite side of the car from the emergency window exit dimensions instructions posted for its use. In Phase windows in the second and fourth should be based on the dimensions II of this rulemaking FRA will examine quadrants. This represents the optimal needed: (1) To extricate an injured with the Working Group the need for placement of emergency window exits person from the passenger car; and (2) requirements concerning the ease of on a main level of a typical passenger to allow an emergency responder fitted removing passenger car windows from car, and is required by paragraph (a)(1) with a self-contained breathing the outside of the car, taking into where practical. Yet, as FRA noted in apparatus to enter the passenger car. See consideration potential issues and the final rule, other considerations may 64 FR 25595. FRA agreed with the concerns such as the unintentional be taken into account, including the NTSB and paragraph (b) of the final rule dislodgement of the windows. FRA does need to provide an unobstructed exit reflects these considerations. The size of note that, pursuant to § 238.235(b), each without diminishing normal seating the emergency window exit opening powered, exterior side door on a new capacity. As a result, where staggering is cannot be determined solely on the passenger car must be equipped with a not practical, paragraph (a)(1) would dimensions needed for an able-bodied manual override that is designed and allow the emergency window exits to be passenger to exit through a window. maintained so that a person may access placed on opposite sides of the car, Although FRA recognizes that use of a the override device from both inside directly across from one another, seat back may facilitate the escape of and outside the car without requiring provided at least two emergency able-bodied passengers through a the use of a tool or other implement. window exits are located in each end of window, the same seat back may impair In the final rule, FRA reserved the car. the removal of an injured person from paragraph (c) for emergency window FRA reiterates that use of the term ‘‘in the car or block an emergency responder exit marking and operating instruction each end’’ in paragraph (a)(1) refers to fitted with a self-contained breathing requirements, which were specified in the forward and rear ends of a car as apparatus from entering through the the Passenger Train Emergency divided longitudinally by its center. window. Further, the requirements of Preparedness final rule, see 63 FR This term does not literally refer to the paragraph (b) only apply to new 24630. FRA noted that in Phase II of the extreme forward and rear ends of a passenger cars and only require that rulemaking FRA will consider passenger car, nor does it require that four windows on each main level be integrating into part 238 the emergency emergency window exits be placed at emergency window exits subject to this window exit marking and operating the extreme ends of a car. FRA also section’s requirements. In consideration instruction requirements specified in reiterates that railroads should be of APTA’s and Amtrak’s concerns, the Passenger Train Emergency mindful that if the ends of a car crush however, FRA is amending the Preparedness final rule, as well as in a collision, the window exits located paragraph to make clear that a seat back consider revising the requirements as at the car’s ends may be rendered does not obstruct an emergency window necessary. While FRA still intends to inoperable. FRA makes clear that exit opening if the seat back can be examine these requirements in Phase II, VerDate 11 FRA has in the interim inserted a necessary implication of the term forth the content requirements for a reference to the marking and instruction ‘‘placed in service for the first time’’ is petition, service of a petition, and requirements specified in the Passenger that the equipment is placed in service commenting on a petition, as well as the Train Emergency Preparedness final for the first time in the United States. process FRA follows in acting on a rule to make clear that there are marking For example, where a requirement petition. FRA notes that, subsequent to and instruction requirements and applies to passenger equipment placed the final rule, § 238.203(g) was amended identify where to locate these in service for the first time on or after by a December 16, 1999 final rule that requirements. September 9, 2002, and the railroad revised docket filing procedures for FRA desires to purchase passenger rulemaking and adjudicatory dockets. Subpart C–Specific Requirements for equipment operating in a foreign See 64 FR 70193. Yet, the amendments Tier I Passenger Equipment country, that equipment will be to § 238.203(g) only concerned the Section 238.201 Scope/Alternative considered placed in service for the first procedures for filing comments by Compliance time on or after September 9, 2002, if it interested parties. is placed in service in the United States In its petition for reconsideration, Subpart C contains specific for the first time on or after this date. Amtrak believed that paragraph (h)(1) requirements for railroad passenger Consequently, the equipment will be provided that a hearing must be equipment operating at speeds not subject to the requirements of the rule conducted in connection with all exceeding 125 mph. In general, except applicable to passenger equipment petitions; that this would deviate from for the static end strength requirements placed in service for the first time on or the standard specified in FRA’s rules of (§ 238.203) and as otherwise provided in after September 9, 2002. As noted practice at 49 CFR 211.25(a) for this subpart, the requirements of subpart above, FRA has amended the definition convening a hearing; and that no need C apply only to passenger equipment of ‘‘In service’’ in § 238.5 to make this exists to deviate from this practice. ordered on or after September 8, 2000, clear. Overall, this clarification is Paragraph (h)(1) provided that FRA will or placed in service for the first time on consistent with the pre-revenue service conduct a hearing on a grandfathering or after September 9, 2002. acceptance testing plan requirements in petition in accordance with 49 CFR Following publication of the final § 238.111, which distinguish between 211.25, which, among other things, rule, a passenger car builder asked FRA passenger equipment that has states that a hearing will be held if at what point would a railcar, having previously been used in revenue service required by statute or the Administrator undergone extensive rebuilding, be in the United States, and that equipment finds it necessary or desirable. In the considered new and therefore subject to which has not. case of a petition for grandfathering, a the requirements for new passenger Similarly, for purposes of the hearing is not required by statute. equipment in subpart C. The builder presumption in § 238.203(b) that Consequently, in reading these two explained that it has torn down and passenger equipment placed in service sections together, paragraph (h)(1) rebuilt passenger cars using all new before November 8, 1999, is presumed would not require that a hearing be held materials except for their underframes to comply with the 800,000-pound static on every petition for grandfathering. and trucks. FRA makes clear that when end strength requirement in Nonetheless, FRA has amended the rule a passenger car is torn down to its § 238.203(a), the presumption only to make clear that a hearing will be held underframe and rebuilt, the applies to passenger equipment placed on a petition for grandfathering only if requirements of subpart C do not apply in service in the United States prior to the FRA Administrator finds it unless otherwise specified (such as in November 8, 1999. The builder had necessary or desirable. § 238.203). FRA considered the extent to asked whether this presumption applied Further, Amtrak stated that it may be which subpart C should apply to rebuilt to passenger equipment operating in appropriate for the scope of the passenger cars and generally decided Canada prior to this date, and FRA potential grandfathering of passenger against applying the requirements of the makes clear that it does not. However, equipment to be modified to permit use subpart to such rebuilt equipment. See FRA believes that typical Canadian of the grandfathered equipment for 64 FR 25601–2; see also the discussion passenger equipment would meet the detour or other emergency operations on of the definition ‘‘ordered’’ in § 238.5 requirements of § 238.203(a). a rail line or lines other than the one or (64 FR 25577). Nonetheless, FRA has FRA is only amending § 238.201 to ones specifically approved for use applied specific requirements of the rule correct a typographical error in without the necessity of a formal waiver to rebuilt equipment, such as the fire paragraph (a)(2). The reference to being obtained in such an instance. FRA safety requirements in subpart B for § 238.203 in paragraph (a)(2) of the final does not agree that the rule should materials placed in a passenger car rule was incorrectly stated as provide such general flexibility to a during a rebuild (see § 238.103(a)(2)). ‘‘§ 238.203B.’’ railroad, as the rule is structured to FRA notes that the builder’s question address the safety of the equipment on does highlight the concern that even Section 238.203 Static End Strength a specific rail line or lines. The when a car is torn down to its This section contains the grandfathering petition may of course underframe and could be fitted with requirements for the overall address this situation by specifying new or improved structural features, the compressive strength of all Tier I rail potential rail lines the equipment may rule generally does not require that it be passenger equipment, except for need to use in detour or emergency done. FRA will examine this concern equipment meeting the requirements of situations and by seeking approval for further in Phase II of the rulemaking. § 238.201. use of these rail lines in accordance The builder also asked FRA about the In the final rule, FRA included with the requirements of paragraph (d). meaning of the term ‘‘placed in service paragraphs (d) through (f) to provide a Otherwise, FRA will address such a for the first time,’’ which is used formalized process for seeking situation on a case-by-case basis. throughout rule—not only in subpart grandfathering approval of passenger Finally, Amtrak stated that there is no C—and its effect for purposes of equipment in use on a rail line or lines apparent reason to specify that equipment that has previously been on November 8, 1999, not meeting the approved grandfathering petitions are placed in service in Canada or another minimum static end strength subject to reopening per paragraph country. FRA makes clear that the requirements. These paragraphs set (h)(2). The rule provides for the VerDate 11 reopening of approved grandfathering the other, it is not possible to apply the paragraph (b) was not to focus on petitions for cause stated so that FRA load in the same manner on these strengthening a locomotive’s draft may retain oversight of grandfathered structures. APTA contended that the arrangement, and therefore FRA could equipment. For instance, the facts or final rule should not define not agree that APTA’s approach circumstances underlying the approval requirements beyond what has proven complied with paragraph (b). (A copy of of a grandfathering petition may change to be achievable, and recommended that this letter has been placed in the public over time and bring into question the current industry practice for anti- docket for this rulemaking.) FRA’s whether usage of the equipment climbing mechanisms at the leading intent has been to encourage the use of continues to be in the public interest ends of cab cars and MU locomotives be anti-climbing mechanisms that help to and consistent with railroad safety. retained, i.e, the strength requirements prevent (1) debris from rising toward the Paragraph (h)(2) remains unchanged. provided in paragraph (a). cab and passenger compartments in the As a final matter, for a discussion of In a letter to APTA dated September case of a highway-rail collision and (2) the application of the presumption in 24, 1999, FRA announced that it would insofar as reasonably possible, any paragraph (b) to passenger equipment in amend the rule to extend paragraph (b)’s vertical disengagement that could service in a foreign country before compliance dates forward by one year reduce the effectiveness of collision and November 8, 1999, see the discussion of and encouraged APTA to work with corner post arrangements (and § 238.201, above. equipment builders to identify consequent telescoping) in the case of appropriate design criteria for cab car Section 238.205 Anti-Climbing collisions with other rail equipment. and MU locomotive anti-climbers Mechanism FRA intended to incorporate a feature of within this additional one-year period. Association of American Railroads This section contains the vertical (A copy of this letter has been placed in (AAR) Standard (S) 580 that appeared to strength requirements for anti-climbing the public docket for this rulemaking.) be helpful in this regard (along with the mechanisms on rail passenger FRA agreed that the industry needed requirements for improved collision equipment. As stated in the final rule additional time to perfect practicable posts and 1⁄2-inch or equivalent steel text, paragraph (a) applies to all designs to meet the requirements of skin protecting the forward end passenger equipment placed in service paragraph (b), but was concerned with structure). Conventional freight and for the first time on or after September excluding cab cars and MU locomotives passenger locomotives have generally 8, 2000. 64 FR 25675. However, the from the requirement. If anything, the implemented this requirement through section-by-section analysis to the final need for the requirement is greater in use of a horizontal shelf arrangement rule incorrectly stated that paragraph (a) preventing injury in the context of that protrudes forward of the applied to all passenger equipment passenger-occupied locomotives (cab locomotive. In order to be effective, placed in service for the first time on or cars and MU locomotives), where the such an anti-climbing mechanism must after November 8, 1999. 64 FR 25604. engineer is located far forward in the FRA makes clear that the September 8, be situated on the front of the vehicle in vehicle. such a way as to encourage capture of 2000 applicability date as stated in the By letter dated November 21, 2000, the object in danger of rising and be final rule text is correct. APTA informed FRA of its progress in strong enough to contain its rise. In its petition for reconsideration of achieving a practical design standard. Ideally, such an arrangement would the final rule, APTA asked FRA to (A copy of this letter has been placed in tend to interlock with the arrangement reconsider the requirement in paragraph the public docket for this rulemaking.) on the front of other rail vehicles. (b) that the forward end of a locomotive APTA explained that at least three car Certainly a coupler and drawbar can be ordered on or after September 8, 2000, builders proposed strengthening the or placed in service for the first time on forward car body structure that supports helpful, but the capture surface of a or after September 9, 2002, be equipped the coupler, in order to withstand the coupler is narrow, and the chance of with an anti-climbing mechanism required vertical loads. APTA stated achieving coupling with another vehicle capable of resisting an upward or that Bombardier had proposed meeting in higher force impacts is not high. downward vertical force of 200,000 this requirement in building MU FRA continues to have confidence pounds without failure. FRA had locomotives for the Long Island Railroad that incorporation of a separate anti- explained in the preamble to the final by designing the car body structure to climbing mechanism on the front of cab rule that specifying a vertical load resist an ultimate load of 200,000 cars and MU locomotives is both resistance requirement for lead vehicles pounds applied upward on the buffer feasible and warranted. This conclusion (locomotives) that is greater than that for beam and downward on the coupler is supported in part by successful efforts coupled vehicles is needed to address carrier. APTA sought FRA’s in rail equipment design internationally. the greater tendency for override in a concurrence on this design approach, Nonetheless, FRA has accepted the fact collision between uncoupled vehicles. maintaining that the approach is that for cab cars and MU locomotives See 64 FR 25604. However, FRA consistent with the loading implementation of effective anti- recognized that implementing this anti- requirements that have traditionally climbing arrangements that comply with climbing requirement in the leading been used to meet a 100,000-pound (to paragraph (b) will, in at least some structure of cab cars and MU yield) anti-climbing requirement. APTA cases, require more elaborate redesign locomotives presented a significant stated that the industry currently has no than initially contemplated by FRA. challenge. other viable options for anti-climbing Considering the further work that will In its petition, APTA stated that no mechanism designs for cab cars and MU be required to develop compliant car builder had been able to find a locomotives that would meet the designs and evaluate their compatibility means of constructing a cab car or an requirements of paragraph (b), and that and effectiveness, FRA has modified the MU locomotive meeting the anti- these vehicles do not lend themselves to rule to exclude cab car and MU climbing requirement in paragraph (b). the shelf-type anti-climbing locomotives from the additional APTA explained that, due to dissimilar mechanisms used on conventional forward-end anti-climbing requirements structures on the leading ends of a cab locomotives. in paragraph (b). Of course, cab car and car and an MU locomotive on the one In a letter to APTA dated February 2, MU locomotives will continue to be hand, and a conventional locomotive on 2001, FRA explained that the intent of subject to the requirements of paragraph VerDate 11 (a). In Phase II of the rulemaking, FRA paragraph (a) applies to all passenger more protection by allowing the coach’s looks forward to restoring an equipment placed in service for the first collision posts to deform the rear of the appropriate requirement for cab car and time on or after September 8, 2000. 64 locomotive, thereby absorbing and MU locomotives, based on research FR 25675. However, the section-by- dissipating collision energy. results, continued input from APTA, section analysis to the final rule FRA has amended this section to and consultations with the Passenger incorrectly stated that paragraph (a) provide that collision posts are not Equipment Safety Standards Working applied to all passenger equipment required at the rear end of a locomotive Group as a whole. placed in service for the first time on or that is designed to be occupied only at As a final point, FRA has no objection after November 8, 1999. 64 FR 25605. its forward end. As a result, rear if a railroad wishes to exceed the FRA makes clear that the September 8, collision posts will continue to be traditional minimum standard of 2000 applicability date as stated in the required on an MU locomotive and a 100,000 pounds for the anti-climbing final rule text is correct. cab car, as well as on any locomotive capacity of the coupler carrier and In its petition for reconsideration, designed to be occupied at the rear. In buffer beam. However, FRA has APTA stated that FRA inadvertently the case of a conventional passenger amended paragraph (b) to remove the changed the requirements of this section locomotive designed only to be text stating that its requirements are ‘‘in in the final rule contrary to FRA’s intent occupied at its forward end, rear lieu of the forward end anti-climbing and the Working Group’s consensus. collision posts will not be required for mechanism requirements described in APTA maintained that consensus was Tier I operations at this time. paragraph (a) of this section.’’ Because reached for all passenger cars to have Nevertheless, FRA notes that, in paragraph (a) states that certain tight- two full-height collision posts at each considering occupant protection lock couplers satisfy the anti-climbing end, as well as not to require collision strategies for such locomotives, the mechanism requirements, the reference posts at the rear end of non-passenger focus of any collision post requirement to paragraph (a) in paragraph (b) could carrying locomotives. APTA believed should be on the rear end of the have led to the misunderstanding that that paragraph (a)(1)(i), as stated in the locomotive cab-not the rear of the increasing the strength of the coupler final rule, would not require collision locomotive in its entirety-as provided would satisfy the requirements of posts at both ends of any passenger for Tier II passenger equipment in paragraph (b) without the need for a equipment. § 238.411(b). (The locomotive cab is the separate anti-climbing mechanism. FRA FRA has revised paragraph (a)(1) to volume normally occupied by the train did not intend such a result. make clear that collision posts are crew in a locomotive.) As noted in the Nevertheless, FRA is not aware of any required at each end of passenger final rule, structural requirements for serious deficiency in the 100,000-pound equipment, unless otherwise expressly locomotives are also being considered in draft securement requirement, given the excepted. In the NPRM, FRA had the Locomotive Crashworthiness function it has typically played in generally proposed that all passenger Working Group of FRA’s RSAC, and crossing and train-to-train collisions. equipment have collision posts at each FRA expects further advances in Existing draft arrangements should be end, see 62 FR 49804, and the preamble locomotive crashworthiness safety to sufficient to prevent override in those to the final rule does not at all indicate result from this separate proceeding. cases where coupler engagement is that FRA had so radically departed from the NPRM as to limit the requirements Section 238.219 Truck-to-Car-Body sufficient to arrest vertical movement Attachment (up to the strength of the coupler for collision posts to only one end of components and the drawbar itself). passenger equipment. FRA believes that This section contains the truck-to-car- the final rule did require collision posts body attachment strength requirements Section 238.207 Link Between at each end. Nevertheless, FRA is for Tier I passenger equipment. The Coupling Mechanism and Car Body clarifying the requirements of this final rule required the attachment to This section contains the vertical section by adding the words ‘‘at each resist without failure a 2g vertical force strength requirements for the structure end’’ to paragraph (a)(1)(i) to remove on the mass of the truck and a force of that links the coupling mechanism to any ambiguity. 250,000 pounds acting in any horizontal the car body for passenger equipment. Further, FRA has generally adopted direction on the truck. The purpose of these requirements is APTA’s request to amend this section to APTA, in its petition for generally to avoid a premature failure of exempt the rear end of non-passenger reconsideration, stated that the the draft system so that the anti- occupied locomotives from the collision requirement for the vertical and climbing mechanism will have an post requirements. FRA acknowledges horizontal forces to be applied opportunity to engage. As stated in the that in preparing the final rule it simultaneously on the truck (as final rule text, this section applies to all seemingly overlooked APTA’s comment explained in the preamble to the final passenger equipment placed in service on the NPRM questioning the need for rule) is not the industry practice and for the first time on or after September collision posts at the rear end of non- was never discussed at Working Group 8, 2000. 64 FR 25675. However, the passenger occupied locomotives. In its meetings. Accordingly, APTA believed section-by-section analysis to the final comments on the NPRM, APTA stated that this requirement should not be rule incorrectly stated that this section that such collision posts could simply included in the final rule without applied to all passenger equipment have the effect of adding weight to having input from the industry placed in service for the first time on or locomotives without providing any regarding its feasibility and impact. after November 8, 1999. 64 FR 25605. additional protection to the crew, and APTA stated that no truck-to-car-body FRA makes clear that the September 8, that no evidence had been presented attachments are designed to meet this 2000 applicability date as stated in the that crewmembers of non-passenger requirement and cited potential final rule text is correct. carrying locomotives have been harmed operational and economic impacts that by trailing passenger coaches overriding may result if any new equipment Section 238.211 Collision Posts such locomotives from the rear. In ordered would be incompatible with This section contains the structural addition, APTA had commented that existing equipment as a result of this strength requirements for collision passengers in a coach overriding the requirement. APTA disagreed with posts. As stated in the final rule text, rear of a locomotive may be provided FRA’s reasoning for this requirement, as VerDate 11 stated in the preamble to the final rule, stringent requirement than one based on FRA to focus more closely on APTA’s that ‘‘[r]equiring the truck-to-car-body ultimate strength. standard than in this response to attachment to resist the vertical and petitions for reconsideration. For Section 238.223 Locomotive Fuel horizontal forces applied at the same example, in examining how the APTA Tanks time reflects actual conditions standard provides for safety and experienced during a collision or This section contains the structural compares to the fuel tank requirements derailment.’’ (See discussion of requirements for external and internal specified in this section, FRA is § 238.419, the Tier II counterpart to fuel tanks on passenger locomotives focusing on how the hazard of a § 238.219, at 64 FR 25634.) APTA ordered on or after September 8, 2000, jacknifed locomotive is addressed by the maintained that the industry has always or placed in service for the first time on higher fuel tank ground clearance and applied these loads separately because or after September 9, 2002. The final other provisions of the APTA standard. each load case addresses a different rule required that external fuel tanks Consequently, FRA has decided to deny scenario. According to APTA, the 2g comply with the performance APTA’s petition for reconsideration load criterion is typically used to ensure requirements contained in Appendix D request to modify the final rule to that the truck remains with the car body to this part, or an industry standard permit use of its fuel tank safety when it is lifted and is not intended for providing at least an equivalent level of standard as an alternative to the a collision scenario; whereas, the safety if approved by FRA’s Associate requirements contained in this section. 250,000-pound horizontal load Administrator for Safety under § 238.21. However, FRA makes clear that this requirement is the principal strength The requirements in Appendix D are denial in no way prejudices APTA’s criterion that has historically been based on AAR Recommended Practice- petition in docket number FRA–2001– applied to passenger equipment to keep 506 (RP–506), Performance 8698. In fact, FRA is amending the truck with the car body in a Requirements for Diesel Electric § 238.223 to better address petitions for collision scenario. To meet the latter Locomotive Fuel tanks, as adopted on special approval such as APTA’s criterion, APTA explained that the July 1, 1995. because the petition appears to In its petition for reconsideration, vertical reaction to the load must also be encompass not only the external fuel APTA noted that RP–506 represents the considered in the analysis to ensure that tank safety standards specified in first contemporary attempt to the truck does not separate vertically. paragraph (a) but also the internal fuel standardize fuel tank design for crash APTA therefore recommended that FRA tank safety standards specified in performance and that it was developed address this reaction instead of paragraph (b). As originally stated in the within the framework of conventional addressing the 2g vertical and 250,000- final rule, § 238.223 did not expressly locomotive designs–i.e., locomotives provide the opportunity to seek special pound horizontal loads together. with a separate fuel tank suspended Similarly, in discussing § 238.419 in beneath the underframe and located approval of an alternative, internal fuel its petition for reconsideration, Amtrak relatively close to the rails between the tank safety standard. FRA is actively believed the final rule to be inconsistent trucks. According to APTA, the investigating the suitability of APTA’s with long-standing industry practice by passenger rail community has since fuel tank safety standard and expects to requiring that the 2g vertical and utilized RP–506 as the starting point for render a decision soon on its petition. 250,000-pound horizontal loads be further development of a standard for Nonetheless, FRA notes that GETS applied simultaneously. Further, passenger locomotive fuel tanks that: (1) has raised the concern that its Genesis Bombardier raised concerns similar to Specifically addresses the needs of the P42 series locomotive fuel tank may not APTA’s and Amtrak’s in discussing various passenger-type locomotives and technically comply with § 238.223. § 238.419 in its petition for their operation, and (2) builds upon and GETS states that the fuel tank is an reconsideration. Bombardier noted in complements RP–506 by encouraging integral part of the car body structure; particular that since the 2g vertical load the incorporation of additional safety- elevated a minimum of 29 inches above criterion is intended to keep the truck related enhancements such as increased the rail even with fully worn wheels; safely attached to the car body when height above the rail and divided into four separate lifted, the criterion is typically based on compartmentalization. APTA stated that compartments, each with a maximum yield strength rather than on ultimate one of its own standards meets these capacity of approximately 550 gallons; strength. goals: APTA SS–C&S–007–98, equipped with a fuel fill and vent FRA agrees with the petitioners that ‘‘Standard for Fuel Tank Integrity for system that minimizes the potential for the 2g vertical load and the 250,000- Non-Passenger Carrying Passenger fuel spillage in any locomotive pound horizontal load on the truck do Locomotives,’’ and requested that FRA orientation; designed with sloping end not need to be resisted simultaneously, expressly allow the use of this standard plates to deflect debris down and away and FRA has amended the rule to make as an alternative to RP–506. from the fuel tank, and a wall thickness this clear. (FRA announced this Since the filing of its petition for providing puncture resistance in excess decision in a letter to APTA dated reconsideration, APTA has petitioned of the FRA standard. However, GETS February 2, 2001, noted above.) At the FRA pursuant to § 238.21 for a finding believes that significant structural same time, FRA has amended the rule that its fuel tank safety standard, modification to the Genesis car body to state that the truck-to-car-body designated as APTA S–007–98REV10, and fuel tank design will be required if attachment must withstand the resulting provides at least an equivalent level of FRA mandates strict compliance to all vertical reaction to the applied 250,000- safety to the requirements contained in the requirements in Appendix D for pound horizontal load. Consequently, this section. APTA’s petition is external fuel tanks. According to GETS, FRA has adopted the petitioners’ identified as DOT docket number FRA– these modifications would likely recommendations on reconsideration, 2001–8698; the petition and all include eliminating the sloping end except for Bombardier’s point that the documents in the docket are available plate design of the fuel tank (a change 2g vertical load resistance requirement for examination on the Internet at the which GETS believes would degrade be based on yield strength rather than DOT’s Docket Management System Web overall fuel tank safety) and also require on ultimate strength. Use of a yield site: http://dms.dot.gov. The extensive internal structural strength criterion may result in a more proceedings on this petition will enable modification to meet the loading VerDate 11 conditions originally intended for external fuel tank (equivalent to a 5/16- FR 25612. In addition, § 213.333 of the conventional, frame-suspended fuel inch steel plate). FRA did not intend Track Safety Standards requires that an tanks that have lower clearances above that the internal fuel tank requirements instrumented car which is the rail. GETS believes that FRA be stricter in this regard. Consequently, representative of the other equipment approval of APTA’s fuel tank safety FRA has amended § 238.223(b) to assigned to service on the railroad track standard would eliminate any replace the 3/8-inch thickness be operated over the track at the revenue compliance concerns, stating that the requirement with a 5/16-inch thickness speed profile at least twice within every Genesis fuel tank meets or exceeds all requirement to be consistent with 60 days at Class 7 track speeds and provisions of APTA’s fuel tank Appendix D. above (above 110 mph), and that the standard. Finally, FRA notes that for purposes lateral truck accelerations in the FRA recognizes that the Genesis of advancing discussion in Phase II of representative car must also not exceed locomotive fuel tank, as a fuel the rulemaking FRA is concerned with the 0.4g root mean square requirement. containment volume that is integral fuel tanks on passenger equipment other See § 213.333(k). with a structural element of the than locomotives. Such fuel tanks may In effect, the more specific hunting locomotive not designed solely as a fuel be found on head-end power generator oscillation requirements of the Track container, would have met the cars, private cars, and express cars with Safety Standards apply to all Tier I definition of an ‘‘integral’’ fuel tank as engine-generator sets. Railroads should passenger equipment operating at proposed in the NPRM and seemingly be mindful of the potential hazard speeds greater than 90 mph, at least at complied with the requirements posed by the presence of these fuel the vehicle qualification stage. For Tier proposed for ‘‘integral’’ fuel tanks. See tanks in the event of a collision and I passenger equipment operating at 62 FR 49793, 49805. However, as derailment, and their contribution to speeds not exceeding 90 mph, railroads explained in the final rule, FRA fire. FRA will consider with the are encouraged to follow as appropriate removed the definition of ‘‘integral fuel Working Group in Phase II whether to §§ 213.333 and 213.345 of the Track tank’’ and instead specified impose requirements on such fuel tanks. Safety Standards, as well as § 238.427(c) requirements for ‘‘internal’’ and of the Passenger Equipment Safety Section 238.227 Suspension System ‘‘external’’ fuel tanks to more clearly Standards, for purposes of assuring address FRA’s safety concerns. See 64 This section contains requirements for compliance with § 238.227(a). Although FR 25611. Because the Genesis the suspension system performance of railroad passenger equipment operating locomotive fuel tank extends outside the Tier I passenger equipment. FRA is at speeds not exceeding 90 mph is not body structure of the locomotive, albeit explaining but not amending the subject to any of these more specific to a significantly lesser degree than a requirements of the final rule. provisions, demonstrating compliance conventional, frame-suspended fuel In its petition for reconsideration, with the 0.4g root mean square tank, the fuel tank is not ‘‘internal’’ and APTA requested that FRA recognize that requirement will nonetheless therefore subject to the requirements for most railroad passenger equipment demonstrate compliance with ‘‘external’’ fuel tanks in the final rule. experiences laterally oscillating trucks § 238.227(a). In general, FRA will Although GE’s concerns were not raised under some operating conditions and evaluate whether hunting oscillations in a petition for reconsideration of the that most lateral oscillations are not present a ‘‘dangerous instability’’ in final rule, FRA will address them hunting oscillations because they do not light of these vehicle/track interaction concurrently with FRA’s response to lead to a dangerous instability. APTA criteria and general engineering APTA’s petition for fuel tank safety therefore asked FRA to clarify under knowledge and experience (e.g., equivalency. what circumstances a lateral oscillation possibility of wheel climb). In Phase II FRA is amending the final rule to becomes a hunting oscillation for of the rulemaking, FRA will investigate reconcile a discrepancy between the purposes of the rule. more fully the safety implications of external and internal fuel tank safety In paragraph (a), the final rule defines various types of lateral oscillations. As standards. As stated in the final rule, hunting oscillations as lateral a result, more detailed requirements paragraph (b)(3) provides in part that oscillations of trucks that could lead to may be specified concerning hunting internal fuel tank bulkheads and skin a dangerous instability. FRA recognizes oscillations for all Tier I passenger shall at a minimum be equivalent to a that this definition of hunting equipment, and revisions to the more 3/8-inch (6/16-inch) thick steel plate oscillations is less definitive than the specific requirements for Tier II with a yield strength of 25,000 pounds one provided for Tier II passenger passenger equipment may be possible as per square inch. Following publication equipment in § 238.427(c), and in well. of the final rule, FRA compared this §§ 213.333 and 213.345 of the Track requirement with those for external fuel Safety Standards (49 CFR 213)-which is, Section 238.235 Doors tanks in Appendix D, which states in ‘‘a sustained cyclic oscillation of the This section contains the part: ‘‘(4) Load case 4-penetration truck which is evidenced by lateral requirements for exterior side doors on resistance. The minimum thickness of accelerations in excess of 0.4g root mean passenger cars. These doors are the the sides, bottom sheet and end plates square (mean-removed) for 2 seconds.’’ primary means of egress from a of the fuel tank shall be equivalent to a Further, FRA recognizes that any passenger train. 5/16-inch steel plate with a 25,000 instability could be dangerous under the Paragraph (a) requires that by pounds-per-square-inch yield strength . right circumstances. December 31, 1999, each powered, . . . The lower one third of the end plates As noted in the preamble to the final exterior side door in a vestibule that is shall have the equivalent penetration rule, § 213.345 of the Track Safety partitioned from the passenger resistance . . . of a 3/4-inch steel plate Standards requires that train equipment compartment of a passenger car shall with a 25,000 pounds-per-square-inch operating at Class 6 track speeds and have a manual override device that is: yield strength . . . .’’ As a result, the final above (above 90 mph for passenger capable of releasing the door to permit rule would have required that certain equipment and above 80 mph for freight it to be opened without power from portions of an internal fuel tank be equipment) be qualified for operation by inside the car; located adjacent to the stronger (equivalent to a 6/16-inch steel meeting, among other things, the 0.4g door which it controls; and designed plate) than similar portions of an root mean square requirement. See 64 and maintained so that a person may VerDate 11 readily access and operate the override employees and passengers to move if the alerter or deadman control fails en device from inside the car without freely between the vestibule and route.’’ See 64 FR 25678. APTA requiring the use of a tool or other passenger compartments. Consequently, explained that some controlling implement. Passenger cars subject to FRA’s statement in the preamble locomotives are equipped with both a this requirement that were not already concerning windscreens was deadman and an alerter, and stated that equipped with such manual override unnecessarily restrictive. FRA makes only if both features fail should the devices were required to be retrofitted clear that the presence of windscreens restrictions in paragraph (d) apply. accordingly. or other structures that extend across a FRA believes that the application of In its petition for reconsideration, portion of the width of a passenger car the restrictions in paragraph (d) should APTA explained that during Working do not ‘‘partition’’ the vestibule from the be consistent with the requirements in Group meetings it had pointed out that passenger compartment provided there paragraph (a) for having an alerter or certain passenger cars have quarter- is an open passageway allowing deadman feature. As a result, if a point, dual-leafed door arrangements. unobstructed movement between the locomotive is required to be equipped According to APTA, each of these side vestibule and passenger compartments. with either a working alerter or a door locations is equipped with a There would not be a door between the deadman feature pursuant to paragraph manual override device for one of the vestibule and passenger compartments (a), and the locomotive is in fact two door leafs, and each door leaf in such circumstances. Of course for equipped with both devices, then the exceeds the dimensional requirements purposes of the permanent requirement restrictions in paragraph (d) would not for an emergency door. APTA therefore applicable to new passenger cars in apply if only one of the devices fails en requested that FRA clarify the rule to paragraph (b) each powered, exterior route. Of course, alerter and deadman avoid requiring that each door leaf be side door must have a manual override control features are safety equipped with a manual override device, even if the door is located in a appurtenances which are required to be device. vestibule that is not partitioned from the in proper condition and safe to operate FRA has decided that, in the case of passenger compartment. under FRA’s Railroad Locomotive dual-leafed doors and solely for In the final rule, FRA reserved Safety Standards. See 49 CFR 229.7. purposes of the retrofit requirement in paragraph (d) for door exit marking and Further, these appurtenances are also paragraph (a), only one door leaf of a operating instruction requirements, subject to the requirements of the dual-leafed door arrangement be which were specified in the Passenger Locomotive Safety Standards in 49 CFR required to respond to a manual Train Emergency Preparedness final 229.9 that govern the movement for override device by December 31, 1999. rule, see 63 FR 24630. FRA intended in repair of a defective safety FRA previously informed APTA of this Phase II of the rulemaking to consider appurtenance. FRA recognizes that an decision and is now amending integrating into part 238 the door exit alerter is preferable to a deadman paragraph (a) accordingly. Yet, FRA marking and operating instruction feature as a safety device and will recognizes the limitation on emergency requirements specified in the Passenger reexamine in Phase II of the rulemaking egress capacity through the route of the Train Emergency Preparedness final the continued allowance of deadman single panel that is responsive to the rule, as well as consider revising the features in lieu of alerters under part manual release when the other door leaf requirements as necessary. While FRA 238. is not open. As a result, for purposes of still intends to examine these In response to questions that have the permanent requirement applicable requirements in Phase II, FRA has in the arisen since publication of the final rule, to new passenger cars in paragraph (b), interim inserted a reference to the FRA is also amending this paragraph to each door leaf in such a dual-leafed marking and instruction requirements clarify one of the remedial measure arrangement must be capable of specified in 49 CFR 239.107(a) to make provisions. FRA makes clear that responding to a manual override device clear that there are marking and paragraph (d)(1)(i) requires a second located adjacent to the door. instruction requirements and identify person stationed in the locomotive cab APTA’s petition for reconsideration where to locate these requirements. as a remedial measure to be qualified on also raised concern with FRA’s the signal system and trained to apply statement in the preamble to the May Section 238.237 Automated the emergency brake-not qualified on 12, 1999 final rule that a vestibule is not Monitoring normal brake application procedures. partitioned from the passenger This section requires an operational compartment of a passenger car solely alerter or a deadman control device in FRA did not intend that this second by the presence of a windscreen which the controlling locomotive of each person be required to be qualified on the extends no more than one-quarter of the passenger train operating in other than brake application procedures in the way width across the car from the wall to cab signal, automatic train control, or a locomotive engineer is qualified and which it is attached. See 64 FR 25616. automatic train stop territory on or after certified under 49 CFR 240. This APTA stated that windscreens on some November 8, 1999. This section further clarification will help avoid any further types of passenger cars extend one-third requires that such locomotives ordered confusion and more appropriately of the width across the car from the wall on or after September 8, 2000, or placed express FRA’s intent that the second to which they are attached, and in service for the first time on or after person be required to know how to requested that FRA clarify the rule to September 9, 2002, be equipped with a apply the emergency brake. acknowledge that these windscreens do working alerter. As a result, it is Subpart D—Inspection, Testing, and not by themselves partition a passenger prohibited to use a deadman control Maintenance Requirements for Tier I compartment from a vestibule. device alone on these new locomotives Passenger Equipment FRA notes that the preamble language operating in other than cab signal, referenced by APTA was intended to automatic train control, or automatic Section 238.315 Class IA Brake Test address the concerns of railroads that train stop territory. This section contains the windscreens not be considered In its petition for reconsideration, requirements for performing Class IA partitions. FRA did not intend that APTA requested that FRA narrow the brake tests. As stated in the final rule, windscreens constitute partitions where application of the restrictions in paragraph (c) allows a Class I or Class there is an open passageway that allows paragraph (d) which applied, as written, IA brake test to be performed at a shop VerDate 11 or yard site without requiring that the during a Class IA brake test is communicate a service brake test be repeated at the first passenger unnecessary. application and only a pneumatic signal terminal if the train remains on air and The intent of this provision is to to propagate an emergency brake in the custody of the crew. 64 FR 25683. ensure that an emergency brake application, the emergency brake Paragraph (c) is intended to be an application occurs in a train application shall be tested to determine incentive for railroads to conduct Class compromised of MU locomotives if an that it functions as intended. As stated IA brake tests at shop or yard locations angle cock in the train is inadvertently in the final rule, paragraph (d)(2) where they can be performed more closed. For certain MU locomotives an required that for all MU equipment the safely and easily than at a passenger electric control wire or ‘‘P’’ wire is used emergency brake application and the terminal. FRA is therefore amending to make service brake applications but deadman pedal or other emergency paragraph (c) to allow a train crew to the pneumatic train line is used for control device be tested and be receive notice that a Class IA brake test making emergency brake applications. If determined to function as intended. Id. has been performed, rather than require an angle cock is closed in a train made However, for effectively the same that the train crew actually have up of such MU locomotives, the reasons discussed above for the Class IA custody of the train during and after the engineer would be able to make regular brake test counterpart to this performance of the test. To the extent service brake applications to slow or requirement in § 238.315(f)(3), FRA FRA encourages Class IA brake tests to stop the train because the brake recognizes that imposing such a be performed at shop or yard locations application signal is transmitted over requirement on all MU equipment (likely in advance of the time train the ‘‘P’’ wire. However, if the engineer during a Class II brake test is crews normally report for duty) FRA attempts to apply the emergency brakes unnecessary. recognizes that requiring train crews to either through the engineer’s control In performing a Class II brake test, have custody of the trains in these stand or the emergency dump valve, the paragraph (d)(1) requires that the circumstances is seemingly a signal to apply the emergency brakes railroad determine that the brakes on disincentive to performing the tests at would not travel beyond the closed the rear unit of a train apply and release shop or yard locations. Allowing the angle cock. As a result, the engineer in response to a signal from the train crew to receive notice that a Class would not have full emergency braking engineer’s brake valve or controller of IA brake test has been performed, ability. the leading or controlling unit, or a together with the requirement that the For the majority of MU locomotives, gauge at the rear of the train or in the train remain on a source of compressed paragraph (f)(3) is unnecessary because cab of the rear unit indicates that brake air, continues to ensure safety and is a ‘‘P’’ wire circuit is used to apply both pipe pressure changes are properly consistent with FRA’s intent. the service and emergency brakes communicated at the rear of the train. throughout the train. For such Additionally, following publication of For the majority of MU locomotives locomotives, the inspection requirement where a ‘‘P’’ wire circuit is used to the final rule FRA determined that the in paragraph (f)(2) to determine that reference to a Class I brake test in apply both the service and emergency each brake sets and releases during a brakes throughout the train, paragraph paragraph (c) may cause confusion since service brake application effectively subpart D contains specific (d)(2) is unnecessary because the tests to ensure that the emergency inspection requirement in paragraph requirements governing the performance brakes also apply as intended. Even if of Class I brake tests and Class I brake (d)(1) effectively tests the integrity of an angle cock is closed on a train both the service and emergency brake tests must be performed by qualified comprised of such MU locomotives, the maintenance persons presumably at application signals throughout the train. signal communicating the emergency However, for those MU locomotives that shop or yard locations. As a result, FRA brake application will bypass the closed is amending paragraph (c) to remove the use an electric control wire or ‘‘P’’ wire angle cock since it travels on the ‘‘P’’ to make service brake applications but reference to a Class I brake test, wire and not on the pneumatic brake consistent with the preamble discussion use the pneumatic train line for making line. emergency brake applications, the of this paragraph in the final rule which FRA has also removed the reference to inspection requirement in paragraph omits such reference as well. See 64 FR the ‘‘deadman pedal or other emergency (d)(1) is, by itself, insufficient to 25628. control devices’’ from paragraph (f)(3). determine whether the emergency FRA has also revised this section by This reference is not necessary since brakes will apply as intended. Hence, clarifying the inspection requirement such devices typically initiate service the need for this requirement. contained in paragraph (f)(3), which is brake applications—not emergency particular to MU locomotives. FRA brake applications. Further, to the Subpart E—Specific Requirements for makes clear that for MU locomotives extent any such device would initiate an Tier II Passenger Equipment that utilize an electric signal to emergency brake application, testing of Section 238.411 Rear end structures of communicate a service brake the emergency brake application is power car cabs application and only a pneumatic signal specially addressed in paragraph (f)(3) to propagate an emergency brake in those instances where it is necessary. As stated in the final rule, the rear application, the emergency brake For similar reasons, FRA is modifying end structure of a power car cab application shall be tested to determine § 238.317(d)(2), below, which is the provides protection to crewmembers that it functions as intended. As stated Class II brake test counterpart to this from intrusion of locomotive machinery in the final rule, paragraph (f)(3) paragraph. or trailing cars into the cab as a result required that for all MU equipment the of a collision or derailment. The emergency brake application and the Section 238.317 Class II brake test requirements in this section are based deadman pedal or other emergency FRA has revised this section by on a specific end structure design that control device be tested and be clarifying the inspection requirement consists of two full-height corner posts determined to function as intended. Id. contained in paragraph (d)(2), which is (paragraph (a)) and two full-height However, on reconsideration FRA particular to MU locomotives. FRA collision posts (paragraph (b)). In recognizes that imposing such a makes clear that for MU locomotives addition, this section specifies loading requirement on all MU locomotives that utilize an electric signal to requirements that each of these VerDate 11 structural members must withstand and corresponding change to figure 2 to surface of the power car. According to permits flexibility for using other subpart E.) FRA recognizes that the Amtrak, limiting the use of replacement equipment designs that provide strength of the power car cab’s rear windows conforming to paragraph (c) equivalent structural protection. The collision posts should not necessarily be and ultimately compelling the use of required rear end structural protection dependent on the strength of the cab’s windows conforming to paragraph (b) results in considerably greater front end structure, as the front and rear would thereby affect both the thermal protection to the train operator than that end structures are intended to protect and acoustic performance of its high- provided by previous passenger against somewhat different hazards. The speed trainsets ordered prior to May 12, equipment designs. Together, the front front end structure must protect against 1999. and rear end structural protection the greater hazard of a head-on collision FRA is amending paragraph (c) to required by this rule for a power car cab with another train or object. make clear that use of the alternative make the cab a highly survivable crash safety glazing standards specified in that Section 238.419 Truck-to-Car-Body refuge. paragraph is available to passenger In its petition for reconsideration, and Truck Component Attachment equipment ordered prior to May 12, Bombardier raised concern that the FRA has modified this section in 1999, for the life of the equipment. The 750,000-pound shear strength response to petitions for only Tier II passenger equipment subject requirement for collision posts in reconsideration. See the discussion of to the provisions of paragraph (c) are paragraph (b)(1) of the final rule arose the Tier I counterpart to this section at Amtrak’s high-speed trainsets ordered due to confusion between the loading § 238.219, above. prior to May 12, 1999. FRA recognizes requirements in the following sections: Section 238.421 Glazing that well in advance of the final rule the § 238.405(a) (longitudinal static exterior windows in these trainsets were compressive strength); § 238.409 This section contains the safety specially designed for the particular (forward end structures of power car glazing requirements for Tier II shape of the trainsets and that cabs); and § 238.411. Bombardier passenger equipment exterior windows. replacement windows should be of the explained that, for Amtrak’s high-speed FRA believes that the higher speed of same design. As amended, there is now trainsets, compliance with the Tier II passenger equipment necessitates no limitation on using replacement 2,100,000-pound longitudinal static more stringent glazing standards than windows conforming to paragraph (c) in compressive strength requirement was those currently required by 49 CFR 223. these trainsets. met by applying the load at the vertical Nonetheless, in response to comments Further, for passenger equipment not centerline of the underframe as follows: on the NPRM, FRA decided to focus the subject to the alternative standards 300,000 pounds at each of the two front final rule principally on more stringent specified in paragraph (c), FRA is also corner post locations, and 500,000 safety glazing requirements for end- amending paragraph (b). As stated in the pounds at each of the three front facing exterior windows as specified in final rule, FRA had originally proposed collision post locations; 300,000 pounds paragraph (b), instead of all exterior that an end-facing exterior window at each of the two rear corner post windows. See 64 FR 25634. FRA did resist an impact with a 12-pound steel locations, and 750,000 pounds at each note, however, that well in advance of sphere at an angle equal to the angle of the two rear collision post locations. the final rule it had helped to develop between the window’s surface as As such, the 750,000-pound force the specifications for exterior window installed and the direction of travel of applied to the rear collision post safety glazing of Amtrak’s high-speed the train. See 62 FR 49817. In response locations was applied at the vertical trainsets. FRA believes that these to comments on the proposal, FRA centerline of the underframe-not at the specifications provide excellent revised the rule text to require that the shear connection at the top of the protection to the trainsets’ occupants. window glazing resist the impact with underframe-to demonstrate compliance As a result, FRA included the the 12-pound steel sphere at an impact with the longitudinal static compressive specifications as alternative standards in angle of 90 degrees to the window’s strength requirement in § 238.405(a). paragraph (c) for use by Amtrak in surface. See 64 FR 25634. However, Bombardier stated that the purpose of equipment ordered prior to May 12, upon reconsideration, FRA believes that the rear collision and corner posts is to 1999, with limitations on the this requirement was too strict. prevent intrusion into the cab from the replacement of windows. Although FRA agrees that specifying an rear. Bombardier noted that the total Following publication of the final impact angle of 90 degrees to the weight of all the components in the rule, Amtrak petitioned FRA for window’s surface provides a uniform machinery compartment behind the reconsideration of the safety glazing standard for production purposes, a power car cab is approximately 31,000 requirements. In particular, Amtrak point raised in comments on the NPRM, pounds and that these components are noted that the provision for end-facing FRA recognizes that end-facing exterior designed with an attachment strength to exterior glazing in paragraph (b)(1) windows on Tier II passenger resist an 8g longitudinal load. required testing at an impact angle of 90 equipment will likely be specially fitted According to Bombardier, to address the degrees to the window’s surface; for the design of this advanced risk of incursion into the rear of the whereas, paragraph (c) required that equipment. Additionally, end-facing power car cab, the cab’s rear collision each end-facing exterior window be windows on power cars will be sloped posts were each designed to resist a tested at an impact angle equal to the away from the vertical plane to take shear load of 500,000 pounds at the angle between the window’s surface as advantage of aerodynamic designs and, joint with the underframe. Bombardier installed and the direction of travel. therefore, any impact with the windows recommended that § 238.411(b)(1) be Amtrak stated that the requirement in will likely occur at an angle less severe modified by substituting this 500,000- paragraph (c) was consistent with the than 90 degrees to the surface of the pound loading requirement for the high-speed trainset specification and windows. 750,000-pound loading requirement for believed that complying with the Consequently, FRA has amended rear collision posts in the final rule. requirement in paragraph (b) would paragraph (b)(1) to provide that each FRA has adopted Bombardier’s likely require a thickening of the glazing end-facing exterior window in a request and modified paragraph (b)(1) which would protrude up to an inch passenger car and a power car cab, in accordingly. (FRA has also made a outward from the otherwise streamlined the orientation in which the window is VerDate 11 installed in the car or cab, shall resist performance to be demonstrated by use framing arrangement securing the the impact of a 12-pound solid steel of a 0.002-inch thick witness plate. FRA glazing is not specified. sphere traveling (i) at the maximum continues to believe that use of a 0.001- In particular, the cinder block test speed at which the car will operate (ii) inch thick witness plate in paragraph specified in part 223 has proven at an angle no less severe than (b)(2) is appropriate for equipment impractical and, now, unrepeatable horizontal to the car, with no ordered on or after May 12, 1999. FRA because the block is no longer penetration or spall. In all cases, an is correcting paragraph (b)(2) principally manufactured. To accomplish the test, a impact angle that is perpendicular (90 because the word ‘‘inch’’ was current block must be cut down in size degrees) to the window’s surface shall inadvertently omitted from the and have material ground from its inner be considered the most severe impact paragraph. core to reduce the gross weight to meet angle for purposes of this requirement. As touched on above, in the final rule the cinder block specifications. Performance testing may be conducted FRA decided not to impose on all Tier Moreover, no frangibility requirement is using an impact angle that is II passenger equipment the particular specified for the block or the strength of perpendicular to the window’s surface, requirements for side-facing exterior the material. In addition, each but is not required. FRA has also window glazing which FRA had manufacturer that provides glazing amended paragraph (c)(1) for clarity and proposed in the NPRM. See 64 FR materials for use in achieving consistency but does not intend the 25634–6. Instead, FRA required that compliance with part 223 must certify amended paragraph to be more stringent Tier II power car cabs and passenger that each type of glazing material being than paragraph (c)(1) in the May 12, cars comply with either the existing supplied for this purpose has been 1999 final rule. Describing the impact side-facing exterior window glazing successfully tested in accordance with angle as the ‘‘angle between the requirements specified in 49 CFR 223, the requirements of part 223 and that window’s surface as installed and the or the alternative standards specified in test verification data is available to the direction of travel,’’ as stated in paragraph (c), as appropriate. FRA railroad or FRA on request. See 49 CFR paragraph (c)(1) in the May 12, 1999 included in the final rule’s preamble the 223, Appendix A, a(1). There is no final rule, may be less clear than comments received on the proposed requirement that the glazing products describing the impact angle in terms of side-facing exterior window glazing supplied to railroads be tested by an an object traveling horizontal to the standards for purposes of advancing the independent testing laboratory, and a vehicle and striking the window in the discussion of these standards in Phase glazing manufacturer’s process of producing the glazing may have orientation in which the window is II of the rulemaking. FRA also noted changed over time. FRA is also installed in the vehicle. that certain of the comments FRA had concerned that the glazing frame and received on the proposed standards In its petition for reconsideration, gasket have sufficient strength to retain addressed the sufficiency of the existing Amtrak also stated that the 0.001-inch vehicle occupants in the event of a safety glazing standards for all witness plate requirement for derailment or rollover. While the passenger equipment-both Tier I and demonstration of anti-spalling Passenger Equipment Safety Standards Tier II- and for freight equipment as performance is inconsistent with the final rule does require securement of well. In fact, in the ANPRM FRA had high-speed trainset specification. windows to resist both air pressure sought comment concerning the Amtrak stated that the high-speed difference generated by passing trains trainset specification provided for the sufficiency of the existing safety glazing and the impact forces the windows are use of a 0.002-inch witness plate, and standards in part 223 for all equipment- required to withstand, see §§ 238.221(b) that the testing of the high-speed both freight and passenger. See 61 FR and 238.421(d), part 223 contains no trainsets’ windows is complete and 30696. Nonetheless, the Passenger such express requirements. FRA will would have to be repeated using a Equipment Safety Standards Working reexamine the requirements of part 223 thinner witness plate. FRA had Group was generally reluctant to in Phase II of the rulemaking or through understood that the anti-spalling address changes to part 223 in this another appropriate forum. performance of the exterior window proceeding because of the complexity of As a separate matter, FRA also notes glazing on Amtrak’s high-speed trainsets the issues in the rulemaking, the the concern for an appropriate ballistic would be measured using a 0.001-inch satisfaction with existing standards, and impact test, as discussed in the witness plate, in accordance with a May the need for coordination with freight preamble to the final rule. See 64 FR 8, 1994 specification for the trainsets. A interests not represented on the 25636. In the final rule, FRA deferred witness plate having a thickness of Working Group. Id. imposing new requirements for ballistic 0.002 inches was apparently used FRA makes clear that it is concerned testing of exterior window glazing, instead. FRA notes that the difference with the adequacy of the requirements except for purposes of the alternative between the two witness plates is not as of part 223 as they apply to both freight glazing standards specified in paragraph significant when compared to the 0.006- and passenger equipment, and these (c). FRA will reexamine this issue in inch thick witness plate allowed by 49 concerns need a fuller examination than Phase II of the rulemaking or through CFR 223. Further, assuming that the has been done to date. FRA is therefore another appropriate forum. window glazing on Amtrak’s high-speed reiterating the principal concerns stated trainsets would not pass the in the ANPRM-namely, that the witness Section 238.423 Fuel tanks. performance testing requirements if a plate used for testing under part 223 This section contains the 0.001-inch witness plate were used, this may be too thick, allowing spalling of requirements for Tier II passenger too may require a thickening of the pieces of glass large enough to cause equipment fuel tanks. Since the glazing that would affect the thermal injury; the impact test using a 24-pound requirements for internal fuel tanks on and acoustic performance of the cinder block is not repeatable; Tier II passenger equipment are the trainsets. As a result, for purposes of the manufacturers of the window glazing or same as those for Tier I passenger standards in paragraph (c) for their products, or both, need to be equipment in § 238.223(b), FRA notes equipment ordered prior to May 12, certified (and, thereafter, periodically that it has modified the requirements of 1999, FRA is amending paragraph re-certified) by an independent testing § 238.223(b). Please see the discussion (c)(3)(ii) to permit anti-spalling laboratory; and the strength of the of § 238.223(b), above. VerDate 11 Section 238.427 Suspension system. Similarly Amtrak, in its petition for acceleration of 0.05g to be experienced Paragraph (b) Car body accelerations. reconsideration, believed that a steady- by a passenger. As stated in the final rule, paragraph (b) state lateral acceleration limit of 0.1g for FRA believes that a limit of 0.1g for required that the steady-state lateral passenger cars is too strict as a Federal steady-state, car body lateral acceleration of passenger cars be less standard. Amtrak mentioned that it was acceleration is consistent with U.S. rail than 0.1g, as measured parallel to the providing passenger service in industry practice. However, FRA car floor inside the passenger equipment with a steady-state lateral recognizes that as stated in the final compartment, under all operating acceleration of 0.09g between New rule, compliance with the requirements conditions. In its petition for Haven and Boston without incident. of paragraph (b) must not only be reconsideration, Bombardier stated that Amtrak maintained, as Bombardier did, demonstrated during the qualification Amtrak’s high-speed trainsets are that FRA-sponsored research showed testing of the equipment, but also designed to have a nominal steady-state the discomfort level for ten percent of continually for the operational life of lateral acceleration equal to 0.1g at nine passenger car occupants to be at a the equipment. As a result, FRA has inches of cant deficiency. Bombardier steady-state lateral acceleration of 0.15g, amended the final rule to distinguish added that the actual operational cant with no impact to passengers at an between the steady-state lateral deficiency will often be slightly higher acceleration of 0.1g. Amtrak added that acceleration limit for qualification than the nominal cant deficiency upon the TGV operates in Europe within an testing of the equipment and the limit which the schedule is predicated due to acceleration limit of 0.12g, and that the for service operation of the equipment, in order to provide an operational allowable variations in operating speed, ICE train operates within a 0.15g limit. tolerance level. As amended, paragraph as well as in track cross level and Amtrak contended that a 0.12g limit (b) requires that steady-state, car body curvature consistent with 49 CFR 213, would be more appropriate. lateral acceleration be demonstrated not and believed that under normal In evaluating these petitions, FRA to exceed 0.1g at the maximum intended operating conditions it may be common examined its experience with waivers of cant deficiency only during pre-revenue for the 0.1g acceleration level to be FRA’s Track Safety Standards where service acceptance testing under exceeded on some curves. Bombardier FRA has permitted five or more inches § 238.111 and § 213.345 of this chapter. maintained that the 0.1g limit was of cant deficiency for passenger FRA has introduced the phrase ‘‘at the established by the passenger rail equipment operation. In addition, FRA maximum intended cant deficiency’’ to industry to describe ride quality and not reviewed the results of qualification address the concern that, during pre- set a safety threshold, stating that the testing of several high-speed vehicles revenue service acceptance testing, a 0.1g criterion is based on a historically that have been conducted in the past slight increase in train speed or change developed, long-standing AAR comfort few years in accordance with subpart G in track geometry may result in an limit and that the AAR Ride Index Table of the Track Safety Standards. Tests actual cant deficiency at a few locations classifies a steady-state lateral involving both tilting and non-tilting above that which was intended. Such an acceleration of up to 0.11g as merely equipment have shown that steady-state increase in actual cant deficiency at ‘‘perceptible.’’ Bombardier lateral acceleration levels below 0.1g are these locations would result in a acknowledged that at some magnitude achievable in both types of equipment. corresponding increase in steady-state lateral acceleration creates the potential Further, FRA notes that although there lateral acceleration which may exceed for injuries to passengers, and noted that is no specific 0.1g limit in the Track 0.1g. In monitoring high-speed operations are conducted in Europe Safety Standards, the roll angle equipment, FRA’s experience is that with a steady-state lateral acceleration requirement in § 213.329 effectively such isolated fluctuations in steady- of up to 0.15g. Bombardier stated that restricts non-tilting passenger state lateral acceleration caused by the lean test requirement for vehicles equipment to no more than six inches variances between the actual and intended for high cant deficiency of cant deficiency and requires that intended cant deficiencies do not pose operation under FRA’s Track Safety tilting equipment be capable of limiting a larger safety concern. As amended, Standards defines the maximum car steady-state lateral accelerations to no paragraph (b) also requires that steady- body floor angle with respect to the more than 0.1g. This static lean test state, car body lateral acceleration not horizontal when the vehicle is standing evaluates a vehicle’s suspension system exceed 0.12g when the equipment is in on track with a uniform superelevation and tilt control system, if so equipped, service. Because the higher 0.12g limit equal to the intended target cant in a static condition; whereas, paragraph takes into account operational concerns deficiency; that this requirement is (b) describes a limit on the steady-state such as unintended changes in cant intended to ensure that the nominal lateral accelerations that are deficiency, FRA has not added the steady-state acceleration does not experienced by passengers under phrase ‘‘at the maximum intended cant exceed 0.1g at the intended target cant operating conditions. Paragraph (b) is a deficiency.’’ Overall, FRA believes that deficiency; and that compliance with performance requirement concerning these amendments to paragraph (b) the static lean test requirement in the the actual dynamic operation of the appropriately address the concern that Track Safety Standards better defines suspension and tilt control systems. the original requirements were too and fulfills the intent of the steady-state Amtrak’s high-speed trainsets are strict, while helping to ensure that lateral acceleration requirement. designed with tilt control systems that passengers not experience undue Bombardier added that if FRA is to compensate for part of the lateral steady-state lateral accelerations which define a maximum allowable steady- accelerations that result from operating could cause them to lose their balance state lateral acceleration criterion, the at speeds above the balance speed. If and fall. maximum limit should be applicable to there were no car body tilt, a nine inch FRA has also amended paragraph (b) all high cant deficiency operations for cant deficiency (nine inches of to make clear that acceleration both Tier I and Tier II passenger unbalance) would correspond to an measurements shall be processed equipment since the potential for equivalent lateral acceleration of 0.15g. through a low-pass filter having a cut- passenger injury resulting from such The tilt control systems would be off frequency of 10 Hz. Processing car accelerations would be the same expected to compensate for 70% of this body acceleration data through a low- regardless of the type of equipment. acceleration, however, leaving a net pass filter having a cut-off frequency of VerDate 11 10 Hz is consistent with the Track FRA makes clear that Tier II passenger CFR 231 and 49 U.S.C. 20302(a) apply Safety Standards, and a low pass filter equipment must demonstrate to Tier II passenger equipment, tailoring retains important information about compliance with the requirements of them specifically to this new and track curvature. FRA has also amended former paragraph (d), now contained in somewhat unconventional equipment. the rule to define the term ‘‘steady- paragraphs (b)(2) and (3), only during The final rule retained all of the state.’’ Steady-state lateral acceleration the pre-revenue service qualification requirements proposed in the NPRM, shall be computed as the mathematical testing of the equipment. These vertical with one modification concerning sill average of the accelerations in the body and lateral car body acceleration limits steps. of a curve, between the spiral/curve are consistent with the limits contained In its petition for reconsideration, points. In a compound curve, the in § 213.345(b) of the Track Safety Amtrak noted a concern with paragraph average lateral acceleration shall be Standards for vehicle qualification (f)(3) of this section, which addresses calculated over each curve segment. testing. Under the Track Safety safety appliance requirements in the FRA has merged paragraph (d) of the Standards, the vertical and lateral car case where two high-speed trainsets are final rule into paragraph (b) and body acceleration limits contained in coupled together. Amtrak stated that the changed the title of paragraph (b) to § 213.345(b) are more stringent than requirements of this paragraph will read, ‘‘Car body accelerations.’’ As those specified in § 213.333. However, prevent its high-speed trainset fleet from paragraphs (b) and (d) of the final rule like former § 238.427(d), now developing its full design potential to both established requirements for car §§ 238.427(b)(2) and (3), compliance use signal paths and station platform body accelerations, FRA believes that testing under § 213.345 of the Track time. Paragraph (f)(3) of the final rule having the requirements in separate Safety Standards is required only at the stated that if two trainsets are coupled paragraphs with separate titles was vehicle qualification stage; whereas, to form a single train that is not semi- unnecessary and potentially confusing. under § 213.333 of the Track Safety permanently coupled (i.e., that is Paragraph (d) of the final rule Standards, compliance testing is coupled by an automatic coupler), the established limits for vertical required monthly or yearly, as automatically coupled ends shall be acceleration, lateral acceleration, and appropriate. FRA believes that the more equipped with hand brakes, sill steps, the combination of lateral and vertical stringent acceleration limits specified in end handholds, and side handholds that accelerations experienced by Tier II § 213.345(b) and § 238.427(b)(2) are meet the requirements contained in 49 passenger equipment. As provided in appropriate for system qualification CFR 231.14. However, if the trainsets the final rule, Tier II passenger testing and, as the equipment and track are semi-permanently coupled, these equipment must be designed to meet wear, those more restrictive limits safety appliances are not required. See these limits while traveling at the should give way to the less restrictive 64 FR 25688. maximum operating speed over the limits specified in § 213.333 for FRA understands and agrees with intended route of the equipment. monitoring the safety of the system over Amtrak’s concern that the final rule In its petition for reconsideration, its life. would essentially negate the railroad’s Bombardier noted that the basis for the FRA notes that since paragraph (b)(2) ability to connect two currently limits in paragraph (d) of the final rule considers a single event, car body designed high-speed trainsets together appeared to have been FRA’s experience acceleration to be a peak-to-peak value to provide the passenger-carrying with the ICE and X–2000 trainsets on over a one second period, it should not capacity of two high-speed trains Amtrak’s Northeast Corridor (NEC) and matter whether the acceleration data is running on one schedule. After that neither the ICE nor X–2000 trainset processed through a filter having a low- reviewing the design of the currently could consistently meet the criteria as pass, cut-off frequency of 10 Hz or a operating high-speed trainsets, FRA has defined in the final rule because they band pass of 0.5 to 10 Hz. Further, the determined that the requirements exceeded the 0.3g peak-to-peak limit at Track Safety Standards provide for the contained in paragraph (f)(3) regarding revenue speeds at least 2–4 times per use of a low-pass filter having a cut-off handbrakes, sill steps, and side week. Bombardier further maintained frequency of 10 Hz to measure car body handholds are either not appropriate or that vehicle qualification tests accelerations. As a result, FRA is are unnecessary based on the design of conducted by FRA and Amtrak have amending the rule so that the the high-speed trainsets operated by demonstrated the impracticality of the acceleration limits be processed through Amtrak. The design of the power cars 0.3g single event, peak-to-peak a filter having a cut-off frequency of 10 utilized in the high-speed trainsets does requirement. As an alternative to the Hz, consistent with the Track Safety not require an individual to mount a sill requirements of the final rule, Standards. step in order to couple and uncouple Bombardier recommended that car body Paragraph (c) Truck (hunting) the trainsets. The coupling or accelerations be limited to the vehicle/ acceleration. FRA is revising the title of uncoupling of the trainsets can be track interaction safety limits defined in this paragraph to more appropriately accomplished from ground level § 213.333 at a speed up to 10 mph above identify its requirements. The paragraph without the necessity of an individual the maximum operating speed. This otherwise is unchanged. going between the equipment. Thus, approach, according to Bombardier, was Paragraph (d) Overheat sensors. FRA because the sill step is unnecessary proposed in the NPRM for the high- is removing paragraph (e) of the final there is no reason to equip the cars with speed track safety standards and rule and redesignating it as paragraph side handholds as the purpose of these provides a margin of safety by requiring (d). Original paragraph (d) of the final handholds would be to provide an that the limits be met at a speed up to rule has been merged into (b), as noted individual standing on the sill step a 10 mph above the maximum operating above. secure place to hold on to the speed. Bombardier also recommended equipment. In addition, the requirement that car body acceleration limits be Section 238.429 Safety appliances to have the ends of the trainsets defined in terms of sustained This section contains the Tier II equipped with a hand brake is oscillations rather than as single events, passenger equipment safety appliance misplaced. Paragraph (b) of this section to ensure that operations not be unduly requirements. In the final rule, FRA already requires a semi-permanently restricted for perturbations caused by simplified and clarified how the Safety coupled trainset to be equipped with a track switches, etc. Appliance Standards contained in 49 parking or hand brake capable of VerDate 11 holding the train on a three percent attachments to the car body. intended that such a system allow grade. Specifically, paragraph (c) contains passengers to communicate with the Although FRA agrees that it is lateral and vertical acceleration loading train crew so as to bring to the crew’s unnecessary for paragraph (f)(3) to requirements for purposes of ensuring attention an emergency situation and require that the ends of the trainsets be sufficient seat attachment strength. The otherwise allow passengers to equipped with hand brakes, sill steps, longitudinal loading requirement is communicate directly with the crew in and side handholds for the reasons specified in paragraph (a), which states: an emergency. Amtrak has subsequently noted above, FRA does believe that an ‘‘Each seat back and seat attachment in made accessible to passengers the end handhold is necessary to ensure the a passenger car shall be designed to emergency communication system safety of an individual while withstand, with deflection but without transmission locations on its high-speed uncoupling the trainsets. An end total failure, the load associated with trainsets, and the system is now in handhold provides a secure fixture for the impact into the seat back of an compliance in this regard. individuals who are required to bend unrestrained 95th-percentile adult male Following publication of the final over the nose of the equipment to initially seated behind the seat back, rule, FRA also learned from Amtrak that accomplish the coupling or uncoupling when the floor to which the seat is not all passenger cars in its high-speed of the equipment. Consequently, FRA is attached decelerates with a triangular trainsets have emergency amending paragraph (f)(3) of the final crash pulse having a peak of 8g and a communication system transmission rule to require that when two trainsets duration of 250 milliseconds.’’ See 64 locations at each end of the cars. The are coupled together to form a single FR 25688. As a result, no modification cafe´ car in each trainset actually has train that is not semi-permanently of the final rule is necessary to address three transmission locations but only coupled, the automatically coupled Amtrak’s concern; the requirement is one at an end of the car, in the only ends must be equipped with at least an already contained in the rule. vestibule in the car. The other two end handhold that meets the basic FRA is amending paragraph (i) to locations in the car are in the galley and design and structural standards correct a grammatical error by the crew office. Further, both the first contained in this section. substituting the word ‘‘are’’ for the word class and end coach cars have only one Amtrak’s petition for reconsideration ‘‘is’’ in a phrase in the first sentence. transmission location—that at a single also noted its belief that safety end of each car in the only vestibule in Section 238.437 Emergency appliances for its high-speed trainsets the cars. Amtrak has stated that it would Communication would be addressed by an FRA approval be difficult to install transmission letter following a sample car inspection. This section requires an emergency locations at the non-vestibule ends of A sample car inspection is an inspection communication system with back-up these cars so that both ends of the cars FRA performs prior to the placement of power within a Tier II train. Following are equipped with an emergency a car in service to determine whether publication of the May 12, 1999 final communication system transmission FRA would take exception to the safety rule, an issue arose concerning the station. These cars exceed 45 feet in appliance arrangement if the car were in accessibility of emergency length and would be required by the service. FRA does not issue an communication transmission units. As May 12, 1999 final rule to have two ‘‘approval’’ letter as such but would stated in the final rule, emergency emergency communication transmission inform the car builder or railroad as communication transmission units are locations, one at each end of each car, appropriate whether FRA would take required to be accessible to both adjacent to the car’s end doors. exception to the safety appliance passengers and crewmembers. 64 FR In recognition that Amtrak’s high- arrangement. FRA has performed a 25689. However, following publication speed trainsets were in development in safety appliance inspection of Amtrak’s of the final rule, FRA learned from advance of both the proposed and final high-speed trainsets and has been in Amtrak that the emergency rules, FRA is amending paragraph (a) so discussions with Amtrak and the communication system in its high-speed that only one emergency equipment manufacturer to address trainsets was not accessible to communication transmission location is issues concerning the safety appliance passengers, but rather was designed to required in a passenger car ordered arrangement. allow the train crew to provide prior to May 12, 1999. For all other evacuation and other instructions to passenger cars exceeding 45 feet in Section 238.435 Interior Fittings and passengers in an emergency situation length ordered on or after May 12, 1999, Surfaces consistent with the NPRM’s discussion the rule will continue to require This section contains requirements for of the emergency communication emergency communication transmission Tier II passenger equipment interior proposed requirement. See 62 FR 49783. locations at each end of the cars. fittings and surfaces. Once survivable FRA acknowledges that in the NPRM space is ensured by vehicle structural the proposed rule text concerning Section 238.439 Doors strength and crash energy management emergency communication This section contains the features, the design of interior features requirements was silent as to the requirements for doors on Tier II and surfaces becomes an important accessibility of the communication passenger cars. In the final rule, FRA factor in preventing or mitigating system to passengers. However, FRA reserved paragraph (g) for door exit occupant injuries resulting from had believed the requirement for marking and operating instruction collisions or derailments. passenger accessibility to be implicit requirements, which were specified in In its petition for reconsideration, from the proposal that clear and the Passenger Train Emergency Amtrak believed that paragraph (c) does understandable operating instructions Preparedness final rule, see 63 FR not include a requirement for the seat be posted at or near each transmission 24630. FRA intended in Phase II of the attachment to resist a longitudinal force location. See 62 FR 49820. The final rulemaking to consider integrating into of 8g and requested that such a rule made clear FRA’s intent that the part 238 the door exit marking and requirement be added. FRA notes that emergency communication system be operating instruction requirements paragraphs (a) through (c) contain accessible to passengers and be more specified in the Passenger Train requirements for the design of passenger than a one-way public address system Emergency Preparedness final rule, as car seats and the strength of their from the crew to the passengers. FRA well as consider revising the VerDate 11 requirements as necessary. While FRA amendment makes clear that even if the car’s continued use be governed by still intends to examine these headlight is not specifically focused at restrictions similar to those imposed on requirements in Phase II, FRA has in the a person 800 feet or 1,500 feet ahead of a Tier I locomotive when its only interim inserted a reference to the the trainset as the case may be, the required headlight becomes defective. marking and instruction requirements headlight is in compliance if it is Therefore, FRA has added paragraph specified in 49 CFR 239.107(a) to make arranged to illuminate a person 800 feet (b) to this section to make clear that a clear that there are marking and or 1,500 feet ahead of the trainset, or Tier II power car with one defective instruction requirements and identify both. Due to concerns regarding the headlight is to be handled as a non- where to locate these requirements. handling of a power car with a defective running gear defect in accordance with headlight, discussed below, FRA has Section 238.443 Headlights the movement for repair provisions divided this section into two paragraphs This section contains requirements for contained in § 238.17. Thus, if one of with the clarifications discussed above the headlights on a Tier II power car headlights on Tier II power cars. In its contained in paragraph (a) of the petition for reconsideration, Amtrak becomes defective en route, the power section. car may continue in passenger service noted that the power cars of its high- Amtrak also raised concern in its until the power car’s next calendar day speed trainsets have two headlights, petition for reconsideration that the mechanical inspection, provided it has each headlight focused 1,000 feet ahead failure of a single bulb in one of the two of the power cars. Amtrak was headlights on its power cars would been properly inspected and tagged concerned whether its headlights seemingly result in the trainset being in under § 238.17(c). Paragraph (b) makes complied with the requirements of this violation. Amtrak noted that service clear that when both headlights on a section. The final rule, as adopted delays could result if the headlights on Tier II power car become defective, the without comment from the NPRM, Tier II power cars were required to be power car may continue in passenger required that a power car have at least repaired immediately upon being found service only to the nearest forward two headlights producing no less than defective. location where the repairs necessary to 200,000 candela-one headlight focused FRA did not intend that a failure of bring the power car into compliance can to illuminate a person standing between a headlight on a Tier II power car be be made or to the power car’s next the rails 1,500 feet ahead of the power handled any more restrictively than the calendar day mechanical inspection, car under clear weather conditions, and failure of a headlight on a Tier I whichever occurs first. These are the other 800 feet ahead under the same locomotive. Under 49 CFR 229, a Tier I general requirements that govern the circumstances. 64 FR 25689. (For locomotive is permitted to continue in movement for repair of a Tier I comparison, under § 229.125(a), a Tier I service with a defective headlight to the locomotive with a defective headlight locomotive used in road service would earlier of either the next calendar day and are equally applicable to a Tier II be required to have one headlight inspection or the nearest forward point power car with a similar non-complying producing no less than 200,000 candela where the repairs necessary to bring it condition. FRA has also amended arranged to illuminate a person at least into compliance can be made. See 49 § 238.503(f) of this part for consistency. 800 feet ahead and in front of the CFR 229.9(b). However, since headlights Section 238.503(f) provides that the headlight.) on Tier I locomotives are governed by movement of defective Tier II passenger FRA explained in the preamble to the part 229, which requires only one front equipment other than with power brake final rule that a headlight must be headlight on such vehicles, FRA was in defects is governed by the requirements directed farther in front of a Tier II fact inclined to allow additional contained in § 238.17 of this part. passenger train to illuminate a person flexibility in using Tier II power cars Subpart F—Inspection, Testing, and than is currently required for existing with a defective headlight since Tier II Maintenance Requirements for Tier II equipment under 49 CFR 229.125(a). power cars are required to have two Passenger Equipment. See 64 FR 25642. Because a Tier II headlights. passenger train will travel distances As the requirements for headlights on Section 238.503 Inspection, Testing, more quickly than a Tier I passenger Tier II power cars are contained in 49 and Maintenance Requirements train, the train operator will have less CFR 238, the provisions regarding the time to react to obstacles ahead of the movement of non-running gear defects Paragraph (f) of this section contains train and will thereby require earlier would apply to such headlights when a reference to the requirements awareness of these obstacles through a they become defective. Thus, despite contained in § 238.17 to indicate that headlight directed farther in front of the the concern raised by Amtrak in its those provisions also apply to the train. In addition, a headlight focused petition, a power car with a defective movement of Tier II passenger farther in front of the train will provide headlight may continue to be used in equipment with a condition not in earlier awareness to persons who may passenger service until the power car’s compliance with part 238, excluding be in the path of the train. next calendar day mechanical power brake defects. As explained in Addressing Amtrak’s concern, FRA inspection. FRA’s intent when drafting the preceding discussion of headlight understands that the light emitted from the final rule was to permit a Tier II requirements for Tier II power cars, FRA the headlights on Amtrak’s high-speed power car with one of its required has amended this section to make clear trainsets is directed at such an angle headlights defective to continue to be that the provisions contained in that each headlight can simultaneously used until its next calendar day § 238.443(b) govern the movement of a illuminate a person 800 and 1,500 feet mechanical inspection if: the car is power car with a headlight not in ahead of the trainsets. FRA believes that tagged; the operation is deemed safe by compliance with that section. This these headlights are consistent with the a qualified individual; and operating amendment is necessary because FRA final rule and satisfy FRA’s safety restrictions are imposed, as appropriate. had previously excluded Tier II power concerns. For clarity, however, FRA is However, FRA did not intend to afford cars from the requirements for amending this section to replace the this broad latitude in using Tier II headlights contained in 49 CFR phrase ‘‘focused to illuminate’’ with power cars when both of the required 229.125(a) and (b) that are otherwise ‘‘arranged to illuminate,’’ as used in 49 headlights become defective. In such applicable to other locomotives. See 49 CFR 229.125(a) and (b). This instances, FRA intended that the power CFR 229.3(c); 64 FR 25659. VerDate 11 Subpart G—Specific Safety Planning Regulatory Flexibility Act currently contained in the final rule or Requirements for Tier II Passenger The Regulatory Flexibility Act of 1980 allow for greater flexibility in complying Equipment (5 U.S.C. 601 et seq.) requires a review with the rule. of rules to assess their impact on small FRA does note that States involved in Section 238.603 Safety Planning the State Participation Program, Requirements entities. FRA certifies that this response to petitions for reconsideration does not pursuant to 49 CFR 212, may incur minimal costs associated with the FRA has amended paragraphs (a)(3) have a significant impact on a training of their inspectors involved in and (b)(4) principally by substituting the substantial number of small entities. Because the amendments contained in the enforcement of the rule. term ‘‘MIL–STD–882’’ for ‘‘MIL–STD– Nonetheless, representatives of States 882C.’’ As explained in the discussion this document generally clarify requirements currently contained in the were consulted in the development of of § 238.5 above, the final rule cited the rule, in particular through the MIL–STD–882C as a formal safety final rule or allow for greater flexibility in complying with the rule, FRA has participation of the American methodology to guide railroads in Association of State Highway and eliminating or reducing the risk posed concluded that there are no substantial economic impacts on small units of Transportation Officials in the by each hazard identified to an Passenger Equipment Safety Standards acceptable level. MIL–STD–882 was government, businesses, or other organizations. Working Group. See 64 FR 25541. FRA updated on February 10, 2000, and also considered and addressed designated as MIL–STD–882D, Paperwork Reduction Act comments on the rulemaking from the superceding MIL–STD–882C. These This response to petitions for New York Department of amendments make clear that a railroad reconsideration of the final rule does Transportation, North Carolina may use MIL–STD–882D. The not change the information collection Department of Transportation, amendments also make clear that requirements contained in the original Washington State Department of railroads may continue to use other final rule. Transportation, and the State of formal safety methodologies to guide Vermont Agency of Transportation. them in eliminating or reducing safety Environmental Impact In any event, Federal preemption of a hazards. FRA has evaluated this response to State or local law occurs automatically petitions for reconsideration of the final as a result of the statutory provision Appendix A to Part 238—Schedule of rule in accordance with its ‘‘Procedures contained at 49 U.S.C. 20106 when FRA Civil Penalties for Considering Environmental Impacts’’ issues a regulation covering the same Appendix A to this part contains the (64 FR 28545; May 26, 1999) as required subject matter as a State or local law unless the State or local law is designed schedule of civil penalties to be used in by the National Environmental Policy to reduce an essentially local safety connection with this part. Conforming Act (42 U.S.C. 4321 et seq.), other hazard, is not incompatible with Federal changes are being made to the entries environmental statutes, Executive law, and does not place an unreasonable for § 238.105, ‘‘Train electronic Orders, and related regulatory requirements. FRA has determined that burden on interstate commerce. See 49 hardware and software safety,’’ and CFR 238.13. It should be noted that the § 238.427, ‘‘Suspension system,’’ based this document is not a major FRA action requiring the preparation of an potential for preemption also exists on changes to the final rule as discussed environmental impact statement or under various other statutory and above. environmental assessment because it is constitutional provisions, including the Regulatory Impact categorically excluded from detailed Locomotive Inspection Act (now environmental review pursuant to codified at 49 U.S.C. 20701–20703) and Executive Order 12866 and DOT section 4(c) of FRA’s Procedures. the Commerce Clause of the United Regulatory Policies and Procedures States Constitution. Federalism Implications Energy Impact This response to petitions for Executive Order 13132 provides in reconsideration of the final rule has part that, to the extent practicable, no Executive Order 13211 requires been evaluated in accordance with agency shall promulgate any regulation Federal agencies to prepare a Statement Executive Order 12866 and DOT that has federalism implications, that of Energy Effects for any ‘‘significant policies and procedures. Although the imposes substantial direct compliance energy action.’’ 66 FR 28355; May 22, final rule met the criteria for being costs on State and local governments, 2001. Under the Executive Order, a considered a significant rule under and that is not required by statute, ‘‘significant energy action’’ is defined as these policies and procedures, the unless the Federal government provides any action by an agency that amendments contained in this response the funds necessary to pay the direct promulgates or is expected to lead to the to petitions for reconsideration of the compliance costs incurred by State and promulgation of a final rule or final rule are not considered significant local governments, or the agency regulation, including notices of inquiry, in the same way because they generally consults with State and local officials advance notices of proposed clarify requirements currently contained early in the process of developing the rulemaking, and notices of proposed in the final rule or allow for greater proposed regulation. See 64 FR 43255; rulemaking: (1)(i) that is a significant flexibility in complying with the rule. Aug. 10, 1999. FRA believes that this regulatory action under Executive Order These amendments and clarifications regulatory action will not have 12866 or any successor order, and (ii) is will, overall, reduce the cost of federalism implications that impose likely to have a significant adverse effect complying with the rule. However, this substantial direct compliance costs on on the supply, distribution, or use of cost reduction has not specifically been State and local governments, and that energy; or (2) that is designated by the calculated. FRA believes that these this action is in compliance with Administrator of the Office of amendments and clarifications will Executive Order 13132. The Information and Regulatory Affairs as a have a minimal net effect on FRA’s amendments contained in this response significant energy action. FRA has original analysis of the costs and to petitions for reconsideration of the evaluated this response to petitions for benefits associated with the final rule. final rule generally clarify requirements reconsideration of the final rule in VerDate 11 accordance with Executive Order 13211, § 216.17 Appeals. PART 238—[AMENDED] and has determined that this regulatory (a) Upon receipt of a Special Notice action is not a ‘‘significant energy 4. The authority citation for part 238 prescribed in §§ 216.11, 216.13, 216.14, is revised to read as follows: action’’ within the meaning of the or 216.15, a railroad may appeal the Executive Order. decision of the Inspector to the FRA Authority: 49 U.S.C. 20103, 20107, 20133, Compliance With the Unfunded Regional Administrator for the region in 20141, 20302–20303, 20306, 20701–20702, 21301–21302, 21304; 28 U.S.C. 2461, note; Mandates Reform Act of 1995 which the notice was given. The appeal and 49 CFR 1.49. shall be made by letter or telegram. The Pursuant to the Unfunded Mandates FRA Regional Administrator assigns an Reform Act of 1995 (Pub. L. 104–4) each Subpart A—General inspector, other than the inspector from Federal agency ‘‘shall, unless otherwise whose decision the appeal is being 5. Section 238.1 is amended by prohibited by law, assess the effects of revising paragraph (c) to read as follows: Federal Regulatory actions on State, taken, to reinspect the railroad freight local, and tribal governments, and the car, locomotive, railroad passenger §238.1 Purpose and scope. private sector (other than to the extent equipment, or track. The reinspection * * * * * that such regulations incorporate will be made immediately. If upon (c) Railroads to which this part requirements specifically set forth in reinspection, the railroad freight car, applies shall be responsible for law).’’ Sec. 201. Section 202 of the Act locomotive, or passenger equipment is compliance with all of the requirements further requires that ‘‘before found to be in serviceable condition, or contained in §§ 238.15, 238.17, 238.19, promulgating any general notice of the track is found to comply with the 238.107, 238.109, and subpart D of this proposed rulemaking that is likely to requirements for the class at which it part effective January 1, 2002. result in promulgation of any rule that was previously operated by the railroad, (1) A railroad may request earlier includes any Federal mandate that may the FRA Regional Administrator or his application of the requirements result in the expenditure by State, local, or her agent will immediately notify the contained in §§ 238.15, 238.17, 238.19, and tribal governments, in the aggregate, railroad, whereupon the restrictions of 238.107, 238.109, and subpart D upon or by the private sector, of $100,000,000 the Special Notice cease to be effective. written notification to FRA’s Associate or more (adjusted annually for inflation) If on reinspection the decision of the Administrator for Safety. Such a request in any 1 year, and before promulgating original inspector is sustained, the FRA shall indicate the railroad’s readiness any final rule for which a general notice Regional Administrator notifies the and ability to comply with all of the of proposed rulemaking was published, railroad that the appeal has been provisions referenced in paragraph (c) the agency shall prepare a written denied. introductory text of this section. statement * * *’’ detailing the effect on (b) A railroad whose appeal to the (2) Except for paragraphs (b) and (c) State, local and tribal governments and FRA Regional Administrator has been of § 238.309, a railroad may specifically the private sector. This response to denied may, within thirty (30) days request earlier application of the petitions for reconsideration of the final from the denial, appeal to the maintenance and testing provisions rule will not result in the expenditure, Administrator. After affording an contained in §§ 238.309 and 238.311 in the aggregate, of $100,000,000 or opportunity for informal oral hearing, simultaneously. In order to request more in any one year, and thus the Administrator may affirm, set aside, earlier application of these two sections, preparation of a statement was not or modify, in whole or in part, the the railroad shall indicate its readiness required. action of the FRA Regional and ability to comply with all of the Administrator. provisions contained in both of those List of Subjects sections. (c) The requirements of a Special 49 CFR Part 216 (3) Paragraphs (b) and (c) of § 238.309 Notice issued under this subpart shall apply beginning September 9, 1999. Penalties, Railroad Safety, Reporting remain in effect and be observed by a 6. Section 238.5 is amended by and recordkeeping requirements, railroad pending appeal to the FRA revising the definitions of In service and Special notice for repairs. Regional Administrator or to the Tourist, scenic, historic, or excursion 49 CFR Part 238 Administrator. operations; removing the definitions MIL–STD–882C and Monocoque; and Passenger equipment, Penalties, 3. Section 216.23 is amended by revising it to read as follows: adding the definitions MIL–STD–882 Railroad Safety, Reporting and and Semi-monocoque to read as follows: recordkeeping requirements. § 216.23 Consideration of § 238.5 Definitions. The Rule recommendation. * * * * * In consideration of the foregoing, Upon receipt of a Notice of Track In service, when used in connection chapter II, subtitle B of title 49, Code of Conditions issued under § 216.21, the with passenger equipment, means: Federal Regulations is amended as FRA Regional Administrator prepares a (1) Passenger equipment subject to follows: recommendation to the Administrator this part that is in passenger or revenue concerning the issuance of an service in the United States; and PART 216—[AMENDED] Emergency order removing the affected (2) All other passenger equipment track from service. In preparing this subject to this part in the United States, 1. The authority citation for part 216 recommendation, the FRA Regional unless the passenger equipment: is revised to read as follows: Administrator considers all written or (i) Is being handled in accordance Authority: 49 U.S.C. 20102–20104, 20107, other material bearing on the condition with §§ 238.15, 238.17, 238.305(d), or 20111, 20133, 20701–20702, 21301–21302, of the track received from the railroad 238.503(f), as applicable; 21304; 28 U.S.C. 2461, note; and 49 CFR within three (3) calendar days of the (ii) Is in a repair shop or on a repair 1.49. issuance of the Notice of Track track; 2. Section 216.17 is amended by Conditions and also considers the report (iii) Is on a storage track and is not revising it to read as follows: of the FRA Regional Track Engineer. carrying passengers; or VerDate 11 (iv) Has been delivered in interchange (a) The railroad shall develop and 9. Section 238.109 is amended by but has not been accepted by the maintain a written hardware and revising paragraph (b)(6) to read as receiving railroad. software safety program to guide the follows: * * * * * design, development, testing, integration, and verification of software § 238.109 Training, qualification, and MIL-STD–882 means a military designation program. standard issued by the United States and hardware that controls or monitors Department of Defense to provide equipment safety functions. * * * * * (b) The hardware and software safety (b) * * * uniform requirements for developing (6) Require all employees and and implementing a system safety plan program shall be based on a formal safety methodology that includes a contractors to pass either a written or an and program to identify and then oral examination covering the eliminate the hazards of a system or Failure Modes, Effects, Criticality Analysis (FMECA); verification and equipment and tasks for which they are reduce the associated risk to an responsible that are required by this part acceptable level. validation testing for all hardware and software components and their as well as the specific Federal regulatory * * * * * interfaces; and comprehensive hardware requirements contained in this part Semi-monocoque means a type of rail and software integration testing to related to equipment and tasks for vehicle construction where the shell or ensure that the hardware and software which they are responsible; skin acts as a single unit with the system functions as intended. * * * * * supporting frame to resist and transmit (c) The hardware and software safety 10. Section 238.113 is amended by the loads acting on the rail vehicle. program shall include a description of revising paragraphs (a)(3), (b) and (c) to * * * * * how the following will be read as follows: Tourist, scenic, historic, or excursion accomplished, achieved, carried out, or operations means railroad operations implemented to ensure safety and § 238.113 Emergency window exits. that carry passengers, often using reliability: (a) * * * antiquated equipment, with the (1) The hardware and software design (3) Each emergency window exit shall conveyance of the passengers to a process; be designed to permit rapid and easy particular destination not being the (2) The hardware and software design removal from the inside of the car principal purpose. Train movements of documentation; during an emergency situation without new passenger equipment for (3) The hardware and software hazard requiring the use of a tool or other demonstration purposes are not tourist, analysis; implement. scenic, historic, or excursion operations. (4) Hardware and software safety (b) Each emergency window exit in a * * * * * reviews; passenger car, including a sleeper car, 7. Section 238.15 is amended by (5) Hardware and software hazard ordered on or after September 8, 2000, revising paragraph (e)(2) to read as monitoring and tracking; or placed in service for the first time on (6) Hardware and software integration follows: or after September 9, 2002, shall have an safety testing; and unobstructed opening with minimum § 238.15 Movement of passenger (7) Demonstration of overall hardware dimensions of 26 inches horizontally by equipment with power brake defects. and software system safety as part of the 24 inches vertically. A seat back is not * * * * * pre-revenue service testing of the an obstruction if it can be moved away (e) * * * equipment. from the window opening without (2) If the handbrake is located outside (d) (1) Hardware and software that requiring the use of a tool or other the interior of the car or is inaccessible controls or monitors a train’s primary implement. to a qualified person: braking system shall either: (c) Emergency window exits shall be (i) The car shall be locked-out and (i) Fail safely by initiating a full marked, and instructions provided for empty; service brake application in the event of their use, as required by § 223.9(d) of (ii) The speed of the train shall be a hardware or software failure that this chapter. restricted to 20 mph or less; and could impair the ability of the engineer (iii) The car shall be removed from the to apply or release the brakes; or Subpart C—Specific Requirements for train or repositioned in the train at the (ii) Access to direct manual control of Tier I Passenger Equipment first location where it is possible to do the primary braking system (both 11. Section 238.201 is amended by so. service and emergency braking) shall be provided to the engineer. revising paragraph (a)(2) to read as * * * * * (2) Hardware and software that follows: controls or monitors the ability to shut Subpart B—Safety Planning and § 238.201 Scope/alternative compliance. General Requirements down a train’s main power and fuel intake system shall either: (a) * * * 8. Section 238.105 is amended by (i) Fail safely by shutting down the (2) The structural standards of this revising it to read as follows: main power and cutting off the intake of subpart (§ 238.203-static end strength; fuel in the event of a hardware or § 238.205-anti-climbing mechanism; § 238.105 Train electronic hardware and software failure that could impair the § 238.207-link between coupling software safety. ability of the train crew to command mechanism and car body; § 238.209- The requirements of this section that electronic function; or forward-facing end structure of apply to electronic hardware and (ii) The ability to shut down the main locomotives; § 238.211-collision posts; software used to control or monitor power and fuel intake by non-electronic § 238.213-corner posts; § 238.215- safety functions in passenger equipment means shall be provided to the train rollover strength; § 238.217-side ordered on or after September 8, 2000, crew. structure; § 238.219 -truck-to-car-body and such components implemented or (e) The railroad shall comply with the attachment; and § 238.223-locomotive materially modified in new or existing elements of its hardware and software fuel tanks) do not apply to passenger passenger equipment on or after safety program that affect the safety of equipment if used exclusively on a rail September 9, 2002. the passenger equipment. line: VerDate 11 (i) With no public highway-rail grade § 238.219 Truck-to-car-body attachment. 18. Section 238.237 is amended by crossings; Passenger equipment shall have a revising the introductory text of (ii) On which no freight operations truck-to-car-body attachment with an paragraph (d) and revising paragraph occur at any time; ultimate strength sufficient to resist (d)(1)(i) as follows: (iii) On which only passenger without failure the following § 238.237 Automated monitoring. equipment of compatible design is individually applied loads: 2g vertically utilized; and on the mass of the truck; and 250,000 * * * * * (d) The following procedures apply if pounds in any horizontal direction on (iv) On which trains operate at speeds the alerter or deadman control fails en the truck, along with the resulting not exceeding 79 mph. route and causes the locomotive to be in vertical reaction to this load. For * * * * * non-compliance with paragraph (a): 12. Section 238.203 is amended by purposes of this section, the mass of the (1)(i) A second person qualified on revising paragraph (h)(1) to read as truck includes axles, wheels, bearings, the signal system and trained to apply follows: the truck-mounted brake system, the emergency brake shall be stationed suspension system components, and in the locomotive cab; or § 238.203 Static end strength. any other component attached to the * * * * * * * * * * truck by design. (h) Disposition of petitions. 16. Section 238.223 is amended by Subpart D—Inspection, Testing, and (1) If the Administrator finds it revising it to read as follows: Maintenance Requirements for Tier I necessary or desirable, FRA will § 238.223 Locomotive fuel tanks. Passenger Equipment conduct a hearing on a petition in 19. Section 238.315 is amended by accordance with the procedures Locomotive fuel tanks shall comply revising paragraphs (c) and (f)(3) to read provided in § 211.25 of this chapter. with either the following or an industry standard providing at least an as follows: * * * * * equivalent level of safety if approved by § 238.315 Class IA brake test. 13. Section 238.205 is amended by FRA under § 238.21: revising paragraph (b) to read as follows: (a) External fuel tanks. External * * * * * (c) A Class IA brake test may be § 238.205 Anti-climbing mechanism. locomotive fuel tanks shall comply with the requirements contained in performed at a shop or yard site and is * * * * * Appendix D to this part. not required to be repeated at the first (b) Except for a cab car or an MU (b) Internal fuel tanks. passenger terminal if the train remains locomotive, each locomotive ordered on on a source of compressed air and: (1) Internal locomotive fuel tanks or after September 8, 2000, or placed in (1) The train remains in the custody shall be positioned in a manner to service for the first time on or after of the train crew; or reduce the likelihood of accidental September 9, 2002, shall have an anti- (2) The train crew receives notice that penetration from roadway debris or climbing mechanism at its forward end the Class IA brake test has been collision. capable of resisting both an upward and performed. (2) Internal fuel tank vent systems downward vertical force of 200,000 * * * * * shall be designed so they do not become pounds without failure. (f) * * * a path of fuel loss in any tank 14. Section 238.211 is amended by (3) For MU locomotives that utilize an orientation due to a locomotive electric signal to communicate a service revising paragraphs (a)(1)(i) and (a)(2) to overturning. read as follows: brake application and only a pneumatic (3) Internal fuel tank bulkheads and signal to propagate an emergency brake § 238.211 Collision posts. skin shall, at a minimum, be equivalent application, the emergency brake (a) * * * to a 5/16-inch thick steel plate with a application functions as intended. yield strength of 25,000 pounds per (1) * * * * * * * * square inch. Material of a higher yield (i) Two full-height collision posts, 20. Section 238.317 is amended by strength may be used to decrease the located at approximately the one-third revising paragraph (d)(2) to read as required thickness of the material points laterally, at each end. Each follows: provided at least an equivalent level of collision post shall have an ultimate strength is maintained. Skid plates are § 238.317 Class II brake test. longitudinal shear strength of not less not required. than 300,000 pounds at a point even * * * * * 17. Section 238.235 is amended by (d) * * * with the top of the underframe member revising paragraph (a)(3) and (d) to read (2) For MU locomotives that utilize an to which it is attached. If reinforcement as follows: electric signal to communicate a service is used to provide the shear value, the brake application and only a pneumatic reinforcement shall have full value for § 238.235 Doors. signal to propagate an emergency brake a distance of 18 inches up from the (a) * * * application, the emergency brake underframe connection and then taper (3) Designed and maintained so that a application functions as intended. to a point approximately 30 inches person may readily access and operate * * * * * above the underframe connection; or the override device from inside the car * * * * * without requiring the use of a tool or Subpart E-Specific Requirements for (2) The requirements of this paragraph other implement. If the door is dual- Tier II Passenger Equipment do not apply to unoccupied passenger leafed, only one of the door leafs is equipment operating in a passenger required to respond to the manual 21. Section 238.411 is amended by train, or to the rear end of a locomotive override device. revising paragraph (b)(1) to read as follows: if the end is unoccupied by design. * * * * * * * * * * (d) Door exits shall be marked, and § 238.411 Rear end structures of power car 15. Section 238.219 is amended by instructions provided for their use, as cabs. revising it to read as follows: required by § 239.107(a) of this chapter. * * * * * VerDate 11 (b) * * * horizontal to the vehicle, with no (ii) Steady-state lateral acceleration (1) A horizontal, longitudinal shear penetration or spall. An impact angle shall be computed as the mathematical load of 500,000 pounds at its joint with that is perpendicular to the window’s average of the accelerations in the body the underframe without exceeding the surface shall be considered the most of a curve, between the spiral/curve ultimate strength of the joint; and severe impact angle for purposes of this points. In a compound curve, steady- * * * * * requirement. state lateral acceleration shall be 22. Section 238.419 is amended by * * * * * measured separately for each curve revising paragraph (a) to read as follows: (3) * * * segment. (i) * * * § 238.419 Truck-to-car-body and truck (ii) Demonstrate anti-spalling (c) Truck (hunting) acceleration. component attachment. performance by the use of a 0.002-inch *** (a) The ultimate strength of the truck- thick aluminum witness plate, placed (d) Overheat sensors. Overheat to-car-body attachment for each unit in 12 inches from the window’s surface sensors for each wheelset journal a train shall be sufficient to resist during all impact tests. The witness bearing shall be provided. The sensors without failure the following plate shall contain no marks from may be placed either onboard the individually applied loads: a vertical spalled glazing particles after any equipment or at reasonable intervals force equivalent to 2g acting on the mass impact test; and along the railroad’s right-of-way. of the truck; and a force of 250,000 * * * * * 25. Section 238.429 is amended by pounds acting in any horizontal 24. Section 238.427 is amended by revising paragraph (f)(3) to read as direction on the truck, along with the removing paragraph (e), and by revising follows: resulting vertical reaction to this load. paragraph (b), revising the heading of * * * * * paragraph (c), and revising paragraph § 238.429 Safety appliances. 23. Section 238.421 is amended by (d) to read as follows: * * * * * revising the introductory text of (f) * * * paragraph (b), revising paragraphs (b)(1) § 238.427 Suspension system. and (2), revising the introductory text of * * * * * (3) If two trainsets are coupled to form paragraph (c), and revising paragraphs (b) Car body accelerations. (1) A a single train that is not semi- (c)(1) and (3)(ii) to read as follows: passenger car shall not operate under permanently coupled (i.e., that is conditions that result in a steady-state coupled by an automatic coupler), the § 238.421 Glazing. lateral acceleration greater than 0.12g as automatically coupled ends shall be * * * * * measured parallel to the car floor inside equipped with an end handhold that is (b) Particular end-facing exterior the passenger compartment. During pre- located and installed so that an glazing requirements. Each end-facing revenue service acceptance testing of individual can safely couple and exterior window in a passenger car and the equipment under § 238.111 and uncouple the trainsets. The end a power car cab shall also, in the § 213.345 of this chapter, a passenger handhold shall be not more than 16 orientation in which it is installed in the car shall demonstrate that steady-state inches from each side of the car and car: lateral acceleration does not exceed 0.1g shall extend the remaining length of the (1) Resist the impact of a 12-pound at the maximum intended cant end of the car. (If the equipment is solid steel sphere traveling (i) at the deficiency. designed with a tapered nose, the side maximum speed at which the car will (2) While traveling at the maximum of the car shall be determined based on operate (ii) at an impact angle no less operating speed over the intended route, the outer dimension of the tapered nose severe than horizontal to the car, with the train suspension system shall be where the end handhold is attached.) no penetration or spall. An impact angle designed to: The end handhold shall also meet the (i) Limit the vertical acceleration, as that is perpendicular (90 degrees) to the mechanical strength and design measured by a vertical accelerometer window’s surface shall be considered requirements contained in paragraphs mounted on the car floor, to no greater the most severe impact angle for (c), (d)(3), and (d)(6) of this section. If than 0.55g single event, peak-to-peak purposes of this requirement; and the trainsets are semi-permanently (2) Demonstrate anti-spalling over a one second period; (ii) Limit lateral acceleration, as coupled, this safety appliance is not performance by the use of a 0.001-inch required. thick aluminum witness plate, placed measured by a lateral accelerometer * * * * * 12 inches from the window’s surface mounted on the car floor, to no greater than 0.3g single event, peak-to-peak during all impact tests. The witness 26. Section 238.435 is amended by over a one second period; and revising paragraph (i) to read: plate shall contain no marks from (iii) Limit the combination of lateral spalled glazing particles after any acceleration (aL) and vertical § 238.435 Interior fittings and surfaces. impact test; and acceleration (aV) occurring over a one * * * * * * * * * * second period as expressed by the 2 2 (i) If, for purposes of showing (c) Passenger equipment ordered prior square root of (aL +aV ) to no greater to May 12, 1999. Each exterior window than 0.6g, where a may not exceed 0.3g compliance with the requirements of L this section, the strength of a seat in passenger equipment ordered prior to and aV may not exceed 0.55g. May 12, 1999, may comply with the Compliance with the requirements of attachment is to be demonstrated following glazing requirements in lieu paragraph (b)(2) shall be demonstrated through sled testing, the seat structure of the requirements specified in during the pre-revenue service and seat attachment to the sled that are paragraphs (a) and (b) of this section: acceptance testing of the equipment used in such testing must be (1) Each end-facing exterior window required under § 238.111 and § 213.345 representative of the actual seat shall, in the orientation in which it is of this chapter. structure in, and seat attachment to, the installed in the vehicle, resist the (3) For purposes of this paragraph: rail vehicle subject to the requirements impact of a 12-pound solid steel sphere (i) Car body acceleration of this section. If the attachment traveling (i) at the maximum speed at measurements shall be processed strength of any other interior fitting is to which the vehicle will operate (ii) at an through a filter having a cut-off be demonstrated through sled testing, impact angle no less severe than frequency of 10 Hz; and for purposes of showing compliance VerDate 11 with the requirements of this section, § 238.439 Doors. paragraph (a) of this section shall be such testing shall be conducted in a * * * * * moved in accordance with the similar manner. (g) Door exits shall be marked, and following: 27. Section 238.437 is amended by instructions provided for their use, as (1) If one of the headlights is revising paragraph (a) to read as follows: required by § 239.107(a) of this chapter. defective, the defect shall be considered 29. Section 238.433 is amended by a non-running gear defect subject to the § 238.437 Emergency communication. revising it to read as follows: provisions contained in § 238.17 of this * * * * * part. § 238.443 Headlights. (2) If both headlights are defective, the (a) Except as further specified, power car shall be inspected and tagged transmission locations at each end of (a) Each power car shall be equipped with at least two headlights. Each in accordance with the requirements each passenger car, adjacent to the car’s contained in § 238.17(c) relating to non- end doors, and accessible to both headlight shall produce no less than 200,000 candela. One headlight shall be running gear defects. The power car passengers and crewmembers without may continue to be used in passenger requiring the use of a tool or other arranged to illuminate a person standing between the rails 800 feet ahead of the service only to the nearest forward implement. If the passenger car does not power car under clear weather location where the repairs necessary to exceed 45 feet in length, or if the conditions. The other headlight shall be bring the power car into compliance can passenger car was ordered prior to May arranged to illuminate a person standing be made or to the power car’s next 12, 1999, only one transmission location between the rails 1,500 feet ahead of the calendar day mechanical inspection, is required; power car under clear weather whichever occurs first. * * * * * conditions. 30. Figure 2 to subpart E is revised to 28. Section 238.439 is amended by (b) A power car with a headlight not read as follows: revising paragraph (g) to read as follows: in compliance with the requirements of BILLING CODE 4910–06–P VerDate 11 BILLING CODE 4910–06–C en route, that train may remain in § 238.603 Safety planning requirements. Subpart F—Specific Requirements for service until its next scheduled calendar (a) * * * Tier II Passenger Equipment day Class I brake test equivalent at a speed no greater than the maximum safe (3) Eliminate or reduce the risk posed 31. Section 238.503 is amended by operating speed demonstrated through by each hazard identified to an revising paragraph (f) to read as follows: analysis and testing for braking with the acceptable level using a formal safety methodology such as MIL-STD–882; and § 238.503 Inspection, testing, and friction brake alone. The brake system maintenance requirements. shall be restored to 100 percent * * * * * * * * * * operation before the train departs that (b) * * * (f) Movement of trains with other inspection location. (4) Eliminate or reduce the risk posed defects. The movement of a train with * * * * * by each hazard identified to an a defect other than a power brake defect acceptable level using a formal safety shall be conducted in accordance with Subpart G—Specific Safety Planning methodology such as MIL–STD–882; Requirements for Tier II Passenger § 238.17, with the following exceptions: * * * * * (1) The movement of a Tier II power Equipment—[AMENDED] car with a non-complying headlight 33. Appendix A to part 238 is shall be conducted in accordance with 32. Section 238.603 is amended by amended by revising the entries for § 238.443(b) of this part; and revising paragraphs (a)(3) and (b)(4) to sections 238.105 and 238.427 to read as (2) When a failure of a secondary read as follows: follows: brake on a Tier II passenger train occurs VerDate 11 Appendix A to Part 238—Schedule of Civil Penalties 1 * * * * * Willfull Section Violation violation ******* 238.105 Train electronic hardware and software safety: (a), (b), (c) Failure to develop and maintain hardware and software safety ...... 7,500 11,000 (d) Failure to include required design features ...... 5,000 7,500 (e) Failure to comply with hardware and software safety program ...... 5,000 7,500 ******* 238.427 Suspension system ...... 2,500 5,000 ******* Issued in Washington, DC, on April 10, 2002. Allan Rutter, Federal Railroad Administrator. [FR Doc. 02–9419 Filed 4–22–02; 8:45 am] BILLING CODE 4910–06–P 1 A penalty may be assessed against an individual of up to $22,000 for any violation where make the railroad and any responsible individuals only for a willful violation. Generally when two or circumstances warrant. See 49 CFR par 209, liable for penalty under the particular regulatory more violations of these regulations are discovered appendix A. Failure to observe any condition for section(s) contained in part 231 of this chapter or with respect to a single unit of passenger equipment movement of defective equipment set forth in § 238.429 concerning the substantive defective that is placed or continued in service by a railroad, § 238.17 will deprive the railroad of the benefit of condition. The penalties listed for failure to perform the appropriate penalties set forth above are the movement-for-repair provision and make the aggregated up to a maximum of $10,000 per day. railroad and any responsible individuals liable for the exterior and interior mechanical inspections However, failure to perform, with respect to a penalty under the particular regulatory section(s) and tests required under § 238.303 and § 238.305 particular unit of passenger equipment, any of the concerning the substantive defect(s) present on the may be assessed for each unit of passenger inspections and tests required under subparts D and unit of passenger equipment at the time of equipment contained in a train that is not properly F of this part will be treated as a violation separate movement. Failure to observe any condition for the inspected. Whereas, the penalties listed for failure and distinct from, and in addition to, any movement of passenger equipment containing to perform the brake inspections and tests under substantive violative conditions found on that unit defective safety appliances, other than power § 238.313 through § 238.319 may be assessed for of passenger equipment. Moreover, the brakes, set forth in § 238.17(e) will deprive the each train that is not properly inspected. Administrator reserves the right to assess a penalty railroad of the movement-for-repair provision and VerDate 11 Part XI Department of Labor Veterans’ Employment and Training Service Service to Veterans; Final Performance Measures for State Employment Security Agencies; Notice VerDate 11 DEPARTMENT OF LABOR SUPPLEMENTARY INFORMATION: series of tests of proposed measures and meetings with various stakeholders. I. Authority Veterans’ Employment and Training Beginning in September 1998, and Service VETS establishes performance continuing through the Summer of measures for the provision of services 1999, VETS reviewed current Service to Veterans; Final Performance by the public labor exchange under the performance measurements for the Measures for State Employment following authority: public labor exchange and DVOP and Security Agencies A. Title 38, United States Code (U.S.C.), LVER programs. Following the AGENCY: Veterans’ Employment and Chapter 41—Job Counseling, Training, finalization of the performance measures for the Workforce Investment Training Service, Labor. and Placement Services for Veterans, Act (WIA) in 1999, and the publication ACTION: Final Notice. Sec. 4107(a)(1) of recommendations of the United SUMMARY: By law, the Assistant The Secretary shall establish States Employment Service’s (USES) Secretary for Veterans’ Employment and administrative controls for the following workgroup on performance measures for Training (ASVET) is required to purposes: To insure that each eligible the public labor exchange system (65 FR establish performance standards for the veteran, especially veterans of the Vietnam 49708 et seq., Aug. 14, 2000), VETS era and disabled veterans and each eligible provision of services to veterans by person, who requests assistance under this developed five proposed measures that State Employment Security Agencies chapter (38 USCS 4100 et seq.) shall were consistent with these related (SESA’s). The ASVET, in turn, is promptly be placed in a satisfactory job, or workforce development programs. required to report on these results in the job training opportunity or receive some These measures were: Entered Veterans’ Employment and Training other specific form of assistance designed to Employment Rate, Employment Service’s (VETS) Annual Report to enhance such veteran’s and eligible person’s Retention Rate at Six Months, Earnings Congress. This document communicates employment prospects substantially, such as Gain, Employment Rate Following the establishment of final performance individual job development or employment Receipt of Staff-Assisted Services by measures for the provision of services to counseling services. Wagner-Peyser Staff, and Entered veterans by the public labor exchange, B. Title 38, U.S.C., Chapter 41—Job Employment Rate Following Referral to including those services provided by Counseling, Training, and Placement a Federal Contractor. Local Veterans’ Employment Services for Veterans, Sec. 4107 (b) During July through September 2000, Representative (LVER) and Disabled VETS conducted a beta test of its The Secretary shall establish definitive proposed performance measures in six Veterans’ Outreach Program (DVOP) performance standards for determining staff. VETS’ performance measurement (6) States. Based on the results of this compliance by the State public employment beta test, the final recommendations of system for the public labor exchange service agencies with the provisions of this consists of three measures: (1) Veteran chapter (38 USCS 4100 et seq.) and chapter the USES workgroup on performance Job Seeker Entered Employment Rate, 42 of this title (38 USCS 4211 et seq.). measures for the public labor exchange, (2) Veteran Job Seeker Employment These final performance measures are and through coordination with the Retention Rate at Six Months, and (3) separate from the reporting USES on the Revised Employment and Veteran Job Seeker Entered Employment requirements of section 4107 (c) of Title Training Administration (ETA) 9002 Rate Following Receipt of Staff-Assisted 38, U.S.C., and they do not negate these Reports and Revised Employment and Services. These measures are to be reporting requirements. Section 4212 of Training (ET) Handbook 406 (ETA 9002 calculated for two categories of veterans: Title 38, U.S.C. requires entities Data Preparation Handbook), VETS (1) Veterans and Eligible Persons and (2) awarded Federal contracts or published a set of four proposed Disabled Veterans. VETS establishes subcontracts of $25,000 or more to take performance measures in the Federal these measures in light of comments affirmative action to employ and Register (66 FR 29602 et seq., May 31, received in response to proposed advance in employment qualified 2001). These measures were Veteran Job performance measures for services to Special Disabled Veterans, Vietnam-era Seeker Entered Employment Rate, veterans by the public labor exchange, Veterans, Recently Separated Veterans, Veteran Job Seeker Employment as published in the Federal Register on (Pub. L. 106–419 added Recently Retention Rate at Six Months, Veterans’ May 31, 2001. Separated Veterans to the class of Employment Rate Following Receipt of Staff-Assisted Services, and Federal EFFECTIVE DATE: These performance veterans receiving emphasis under Contractor Job Openings Listed with the measures for the public labor exchange Federal Contracts) and Campaign Public Labor Exchange. The first three service to veterans will become effective Veterans (any other veterans who served of these measure were proposed to July 1, 2002. on active duty during a war or in a campaign or expedition for which a apply to all Veterans and to Disabled ADDRESS: All comments received during Veterans. The Federal Register Notice the comment period following the campaign badge or expeditionary medal has been authorized). Federal also provided a general framework for publication of the proposed labor establishing expected levels of contractors and subcontractors are exchange measures for services to performance for each of these measures. required by law and regulation to list veterans (66 FR 29602 et seq., May 31, During the Summer of 2001, VETS 2001) are available for public inspection virtually all job openings with their reviewed and analyzed the comments and copying during normal business local SESA office. The SESA’s, through received in response to the publication hours at the Veterans’ Employment and the public labor exchange system, are of the proposed performance measures. Training Service, U.S. Department of required to provide priority referrals of In addition, VETS considered reviews Labor, 200 Constitution Avenue NW., qualified targeted veterans to these and comments from various sources on Room S–1316, Washington, DC 20210. Federal contractor openings. its proposed measures as well as other FOR FURTHER INFORMATION CONTACT: II. VETS Performance Measures related measures, and guidelines. VETS Robert Wilson, 202–693–4719 (voice), or considered the findings and (800) 670–7008 (TTY/TDD for the A. Background recommendations in a report published hearing impaired), or E-mail: Wilson- VETS developed its performance in May 2001, by the General Accounting [email protected]. measurement system based upon a Office on the VETS proposed VerDate 11 performance measurement system. are placed in training. Six respondents respondents asked for further VETS then considered commentary on suggested that veterans who are enrolled clarification about why this measure the proposed measures received from in case management should be excluded includes the applicants aged 19 years SESA representatives who attended a from the denominator for the Veteran old. series of four Regional Planning and Job Seeker Entered Employment Rate Response: To maintain consistency Management Workshops that VETS because they are likely to require with the public labor exchange and the hosted across the country earlier in extensive services over a period of time similar measure for Title 1 of WIA, the 2001. VETS also reviewed the final that extends beyond two outcome VETS employment retention measure performance measures for the public follow-up quarters (Q∂1 and Q∂2). will follow the definition and labor exchange established by the ETA Similarly, four respondents suggested specifications set forth for the public on July 1, 2001, and the comments that veterans who are enrolled in long- labor exchange employment retention received by USES for its publication of term training should be excluded from measure. The exclusion of registrants the draft ET Handbook 406 and VETS the denominator for the Veteran Job under the age of 19 at the time of 200 Reports. Based on these Seeker Entered Employment Rate registration will remove from the considerations, VETS developed its because their employment outcomes are equation a large portion of those final performance measures of services not likely to appear in the first or registered job seekers who most likely to veterans by the public labor second quarter after registration. are seeking only short term exchange. Response: To maintain consistency employment. The final measures are consistent with the final measures for the public Comment: Five respondents stated with Title 38, U.S.C., the requirements labor exchange, as published by the that the measure is beyond the control of the Government Performance and USES in the May 31, 2001, Federal of the public labor exchange because Results Act (GPRA) of 1993, VETS’’ Register, VETS will retain the proposed several factors may influence Strategic Plan and Annual Plan, and the definition where outcomes are employment retention. Some of the performance measurement systems determined in the two quarters possibilities include seasonal nature of established by the WIA and the USES. following the quarter of registration. To some occupations and changes in the economy of a particular area. B. Response to Comments ensure consistency with the performance measures for the public Response: VETS acknowledges that In response to the four proposed labor exchange, VETS will use the the employment retention measure is VETS performance measures published registration policies defined in the ET blind to labor market conditions. In in the May 31, 2001, Federal Register, Handbook 406. VETS and USES have conjunction with the USES, VETS will VETS received 31 sets of comments jointly discussed the issue of State be developing methods to adjust for distributed as follows: representatives systems not counting registrants while economic conditions and characteristics from state agencies (17), Disabled they are in long-term training or are of registered veteran job seekers to use Veterans’ Outreach Program Specialists receiving intensive services such as case in establishing performance goals and and Local Veterans’ Employment management. In order to develop a for interpreting final performance levels Representatives (9), the National broad, overall measure of the compared to the rates established in the Association of State Workforce effectiveness of participation in the baseline year. Comment: One respondent noted that Agencies, USES, an ETA Regional Office public labor exchange system, VETS the measure, as originally proposed, (3), and current and former employees and USES agree that states are not to does not measure the same group of of VETS (2). The comments are exclude from the applicant counts any veterans as the Veteran Job Seeker discussed at length as follows: individuals engaged in long term Entered Employment Rate measure. (1) Veteran Job Seeker Entered training or case management. VETS Response: We agree that the Veteran Employment Rate believes the measure of Veteran Job Job Seeker Employment Retention Rate VETS initially proposed the Veteran Seeker Entered Employment Rate will at Six Months measures outcomes for a Job Seeker Entered Employment Rate help capture the success of the public different pool of applicants than those defined as: labor exchange efforts to assist veteran measured in the Entered Employment job seekers in achieving the desired Rate. The Employment Retention Rate Of Wagner-Peyser Act funded labor outcome of entering employment. exchange applicants who are veterans and measures outcomes for job seekers who who in the first or second quarter following (2) Veteran Job Seeker Employment are age 19 or older at the time of registration (Q∂1 or Q∂2), earned wages from Retention Rate at Six Months registration while the Entered a new or different employer than that from VETS initially proposed the Veteran Employment Rate measures outcomes which the applicant earned wages in the for applicants of all ages. The intent of quarter prior to registration (Q¥1), divided by Job Seeker Employment Retention Rate the number of applicants registered during at Six Months defined as: the proposed Employment Retention the measurement period. Those applicants Rate measure is to determine Of those Wagner-Peyser Act labor exchange who earned wages in the first or second employment retention outcomes for applicants age 19 and older at the time of quarter following registration (Q∂1 or Q∂2), those most likely to be seeking long- solely from the same employer from which registration who are veterans, and who in the first or second quarter following registration term employment, excluding youth, wages were earned in the quarter prior to who are most likely seeking short term (Q∂1 or Q∂2), earned wages from a new or registration (Q¥1), are excluded from the employment. measure. different employer than that from which the applicant earned wages in the quarter prior Comment: Another respondent noted Comment: Five respondents to registration (Q¥1); those who also continue that the standard does not measure supported the measure as proposed. to earn wages in the third or fourth quarter movement from part-time to full-time Eight respondents stated concern that (Q∂3 or Q∂4) respectively, following work. Some respondents also noted that the two quarter period to follow-up registration, divided by the number who initial placements are often temporary veteran registrants’ employment earned wages in the first or second quarter and seasonal. outcomes after the registration dates after registration (Q∂1 or Q∂2 ). Response: VETS supports the measure will not be sufficient for those with Comment: Six respondents supported of Veteran Job Seeker Employment multiple barriers to employment or who the measure as proposed. Four Retention Rate at Six Months as a VerDate 11 measure that is consistent with those of Veterans’ Job Seeker Employment Rate specifications for staff-assisted services other workforce development programs. Following Staff-Assisted Services. to ensure that uniformity can be The intent of the measure also supports Several respondents discussed the achieved among States. Therefore, the VETS’ vision of minimizing definition of staff-assisted services, the elements of staff-assisted services have underemployment, maximizing career ETA policies for States to define been defined in ways that all States can employment opportunities, and registration, and the potential impacts of reasonably apply the definition of staff- improving labor market status of veteran these two issues on this measure. Four assisted services to their specific job seekers. With respect to the respondents suggested that the staff- workforce development programs and comment about temporary and seasonal assisted services should be more systems. work, it is important to note that this specifically defined. Two respondents VETS believes that this measure will measure assesses retention in noted that it is possible that outcomes provide effective data regarding the employment, not job retention with a following this measure are likely to be outcomes of more intensive public labor specific employer. To be counted in this similar to those of the Veteran Job exchange services to veterans. For measure, the veteran job seeker must Seeker Entered Employment Rate example, a veteran job seeker receiving retain some form of employment in the because States may choose to staff-assisted services may require a two quarters following initial entry to implement a registration policy where multitude of services any one of which, employment, not necessarily continued only those job seekers who receive staff- or combination thereof, may require employment with the same employer. assisted services are actually registered. extensive staff time. Thus, measures of Comment: A respondent questioned Two respondents suggested that states entered employment outcomes after the effect that the emphasis on self- should have greater flexibility to define receipt of staff-assisted services will service and automated systems will staff-assisted services. One respondent provide an indication of the quality of have on this standard. recommended that referrals to a job not those services. VETS encourages States Response: The measure is not be considered a staff-assisted service to collect and analyze more detailed intended to specifically assess because this activity is not staff- information on staff-assisted services, as effectiveness of the use of self-service intensive. One respondent each State deems necessary for its tools by individuals. Individuals using recommended not implementing this management purposes. only self-service tools will not be measure unless VETS provides Comment: Two respondents suggested counted unless a State has defined its additional funding for programming. that VETS consider ‘‘weighting’’ registration policy to include these Finally, two other respondents services so that those Services that are individuals in the registered applicant suggested that the quality of staff- more staff-intensive (such as case pool. For States that do register these assisted services can be measured management) are given additional individuals, the measure will help through the Veteran Job Seeker weight, compared to those that are less capture the quality of staff-assisted Employment Retention Rate After Six intensive. services, facilitated self-help services, Months measure. Response: VETS is exploring the and self-services that provide job Response: The comments about this development of a weighted seekers with resources to secure and measure pertain to two issues: measurement system that would further maintain continued employment. registration policies and definition of encourage the provision of intensive Comment: Another respondent also staff-assisted services. The new services to veterans by the public labor suggested that the measure will be registration policy for the public labor exchange system. flawed if it fails to take into account exchange requires that anyone receiving Comment: Two respondents suggested customer satisfaction. staff-assisted services be registered. that case management by DVOP or Response: The measure of Veteran Job Under the WIA, States do have the LVER staff specifically should be Seeker Employment Retention Rate at option to register those using only self- emphasized in this measure. Six Months does not specifically service tools. For States that exercise the Response: VETS is focusing its include a customer satisfaction option to not register self-service guidance on DVOP services to address component as that type of information customers, VETS acknowledges that the the needs of those veteran job seekers, is intended to be collected separately. Veterans’ Employment Rate Following particularly disabled veterans, who The public labor exchange performance Receipt of Staff-Assisted Services could benefit from case management measures for customer satisfaction will measure may parallel the entered and other employment development serve as a broad indicator of how well employment measure. To maintain activities by DVOP staff. VETS is the public labor exchange is serving all consistency, and to ensure that any currently developing specific job seekers including veterans. veteran in any State who received performance measures as well as services from the public labor exchange prototype performance standards that (3) Veterans’ Employment Rate will be counted by the VETS would apply to DVOP and LVER staff Following Receipt of Staff-Assisted performance measures, VETS will activities. Services maintain the Veterans’ Employment Comment: Another respondent VETS initially proposed the Veterans’ Rate Following Receipt of Staff-Assisted suggested that restricting measurement Job Seeker Employment Rate Following Services measure (this measure will be for this measure to only two quarters Receipt of Staff-Assisted Services renamed as Veteran Job Seeker Entered may not fully capture the entered defined as: Employment Rate Following Receipt of employment outcome, and therefore Of the Wagner-Peyser Act applicants who Staff-Assisted Services). three follow-up quarters would be are veterans, who registered in a quarter, The elements of the staff-assisted preferable. (Q0), and who received some form of staff- services were developed in consultation Response: VETS believes that assisted services from public labor exchange with the USES workgroup of State consistency between this measure and staff, the number who are employed by the representatives, officials from the other entered employment measures for end of the first or second quarter after National Association of State Workforce the public labor exchange will help registration, (Q∂1 or Q∂2). Agencies, and staff from VETS and ETA provide broad, overall measures of the Comment: Five respondents National and Regional offices. The effectiveness of the public labor supported a performance measure for workgroup revisited the definition and exchange system in serving veterans. VerDate 11 Therefore, VETS and ETA agree that this periods, as they relate to the rolling four persons who either registered or measure should use data from the two quarter concept. One respondent received services within the four quarter quarters following registration as the expressed concern that under the self- reporting period. The 9002C (quarterly period for determining entered service concept, the number of veteran outcome report for all applicants), and employment outcomes. job seekers will drop significantly. 9002D (quarterly outcome report for Another respondent suggested that in veteran applicants) will report the (4) Federal Contractor Job Openings some States, the registration policy will outcomes available on services provided Listed With the Public Labor Exchange create situations where the only veteran to all registered job seekers, and to VETS initially proposed the Federal job seekers who will be registered are veteran job seekers for the four quarter Contractor Job Openings Listed with the those who receive intensive services reporting period. The rolling four Public Labor Exchange be defined as: offered principally by staff funded quarter reporting period eliminates the The percentage increase in the number of under WIA grants, without regard to the concept of a carry-over registration from Federal contractor job openings listed services provided by staff funded under one program year to the next and annually with the public labor exchange, Wagner-Peyser or DVOP or LVER grants. provides uniformity for registration relative to the number listed in the previous As a result of these registration policies, across States. Program Year (PY). the labor exchange services to veterans As the performance measurement Comment: VETS received 27 will be evaluated not on the general system for the public labor exchange is comments on the proposed measure for veteran population served by the public modified, VETS will continue to Federal Contractor Job Openings Listed labor exchange, but by those veterans coordinate with USES to ensure as (FCJL) With the Public Labor Exchange. receiving intensives services. Similarly, much consistency as possible between Listing of jobs by Federal contractors two respondents expressed concern that the VETS measures and the ETA with the public labor exchange is not the new measures will not measure the measures for the public labor exchange. under the control of labor exchange success or failure of the self-service and Comment: Other respondents staff. Four respondents noted that automated systems, unless all veterans expressed concern about the use of wage listings of contractors and who use self-service are registered. Two records, specifically the delay in the subcontractors available to staff are not respondents voiced concerns that availability of wage data and the complete. Seven respondents noted that without a National, uniform policy for difficulty in obtaining access to wage enforcement of the FCJL program is the registration, data will not be available data for Federal employees, military responsibility of the Office of Federal for State-to-State comparisons that are employees, interstate data, and Contract Compliance Programs. Nine valid or reliable. However, another occupations where employers do not respondents noted that contractors can respondent encouraged VETS to allow regularly submit wage data to State meet their Federal contractor award States to establish their own registration agencies. One respondent recommended requirements by listing job openings policies for self-service. Another that consideration be given to adding a with America’s Job Bank, not the public respondent asked for clarification that, line item to the United States labor exchange. New Federal contracts as the public labor exchange measures Department of Labor budget to cover the in any given State do not necessarily are modified, VETS measures will also costs of States’ use of the Wage Record imply new job openings. Firms require be modified to maintain consistency. Interchange System. Two respondents new contracts to maintain their current Response: States have the option of voiced concerns about the additional workforce. The quantity of new Federal registering self-service customers. As a costs of reporting that are not borne by contractor job listings is determined by result, VETS, in conjunction with the the DVOP and LVER grants. A final the amount and location of Federal USES, has decided not to implement a respondent suggested revisiting the contracting. No State is guaranteed a policy that will require registration or economic model used by the Job quarter to quarter increase in the establish mandatory performance Training Partnership Act where number of Federal contracts that will be measures for users of self-service tools. considerations such as unemployment awarded in its jurisdiction. To maintain consistency with the rates and labor market conditions are Response: VETS has chosen not to use performance measures for the public factored into the results to evaluate the proposed FCJL measure as a labor exchange, VETS will use the outcomes. performance standard for the public registration policies defined in the ET Response: The three final labor exchange. Since VETS is Handbook 406. A veteran job seeker performance measures rely heavily on mandated by section 4212 of Title 38, customer is counted as registered during wage record data for calculation. VETS U.S.C. to report to Congress on Federal the quarter in which registration occurs acknowledges that the time lags and contractor listing and hiring activity, (registration quarter) and the subsequent lack of coverage of all employers that States will still be required to submit three quarters. Registration is the date of are associated with Unemployment data on the number of Federal registration or re-registration, and the Insurance (UI) wage record data will contractor job listings received, the registration year is the quarter of pose significant challenges as States number of Federal contractors listing registration plus the following three transition to this new way of measuring jobs, the number of veterans referred to quarters. A veteran job seeker who the performance of the public labor FCJL jobs, and on the number of engages in a labor exchange activity exchange’s services to veterans. VETS veterans placed in FCJL jobs. after a registration year expires will continues to support the use of wage begin a new registration year, and will record data for performance (5) General Comments once again be eligible to be counted in measurement of the public labor Comment: Additionally, VETS the measures. exchange’s services to veterans. Use of received a number of comments related For purposes of reporting, the rolling UI wage records is consistent with the to performance measures in general. four quarter period concept will be performance measurement systems Several respondents raised concerns used. As specified in the ET Handbook established for WIA and for the public about registration policies. Four 406, the ETA 9002A (quarterly services labor exchange. The use of wage record respondents requested clarification of report for all applicants), and the ETA information will ease the burden of the definitions of (1) registration, (2) 9002B (quarterly services report for administrative follow-up inherent in the renewal of registration, and (3) reporting veteran applicants) will provide data on current reporting system for the public VerDate 11 labor exchange. In conjunction with the percent variance applies to each of the Response: Beginning in PY 2002, USES, VETS will be developing negotiated performance standards, comparisons of services to veterans methods to adjust for economic developed through the use of two years versus service to other groups will not conditions and characteristics of of data if possible, but not less than one be used as a quantitative performance registered veteran job seekers, to use in year, to establish baseline data for each measure. The new VETS performance establishing performance goals and for performance measure. In the absence of measures do not include comparisons of interpreting final performance levels established baseline data, negotiations veteran job seeker services or outcomes compared to the rates established in the between DVETs and State agencies will to those of other populations served by base line year. In addition, VETS is form the basis of performance standards the public labor exchange. The intent of working with USES to develop data for the transition year of PY 2002. Data the new measures is to encourage a validation procedures to support quality from PY 1999 and PY 2000 should serve State’s public labor exchange system to control in performance measurement as the basis for establishing performance improve its services to veterans, as and data collection. levels for PY 2002. In addition, VETS is compared to its previous years’ Comment: One respondent requested seeking several States willing to pilot performance. These improvements will further clarification about the decision new performance standards based on be demonstrated by the three outcome not to pursue the earnings gain measure data for the past two program years measures: Veteran Job Seeker Entered that VETS tested with historical data in replicating outcomes on the proposed Employment Rate, Veteran Job Seeker six States in the summer of 2000. performance measures. Employment Retention at Six Months, Response: During our analysis of the Comment: One respondent also stated and Veteran Job Seeker Entered test of proposed measures in the concerns about the implications that Employment Rate Following Receipt of Summer of 2000, VETS determined that VETS might withhold grant funds to Staff-Assisted Services, rather than results of the test did not sufficiently support incentives for States with counts of the number of services demonstrate that States could produce ‘‘exemplary performance’’. Another provided. Counts of services provided this measure validly and reliably due to respondent suggested that VETS include are more process-oriented, and do not differences in the way the States incremental incentives in the definition reflect VETS’ emphasis on outcomes. processed the data for this measure. In of performance standards. Comment: One respondent asked for addition, VETS determined that the Response: VETS is exploring the clarification about the definition of earnings gain measure was not an feasibility of initiating an incentive Disabled Veteran and Special Disabled effective measure for the public labor program for exemplary performance in Veteran, if the registrant did not serve exchange since there is no control over service to veterans by a State’s public over 180 days. which jobs applicants choose. Thus, labor exchange system. Should this Response: The VETS performance VETS decided not to use earnings gain incentive program be implemented, measures and other reporting as a performance measure. VETS does not intend to withhold any requirements for services to veterans by Comment: Other comments focused grant funds from State agencies to the public labor exchange will use the on issues pertaining to the support this program. legal definition of veteran as established implementation of the performance Comment: One respondent suggested by section 4211 of Title 38, U.S.C. As measures. Three respondents asked for that the baselines for each measure this relates to disabled veterans, if the clarification that the performance should not be developed by each State applicant did not serve on active duty measures are to be applied at the State in negotiation with the DVET. Rather, for over 180 days, then he/she must level, and that States should have the VETS should establish a National have been discharged or released with authority to negotiate and establish formula and time frames to develop a other than a dishonorable discharge, standards at the sub-State level with year of baseline data. Another and have been discharged or released local workforce investment boards. respondent stated that the process for because of a service-connected Another respondent asked for negotiating baselines using prior data disability. clarification of whether the five percent seems unnecessary, and that the first Comment: One respondent noted that variance will be for the total standards cycle of data following July 2002 (PY the VETS measures do not distinguish or the negotiated performance 2002) should be the basis for States’ among the One-Stop partners, public standards. A final respondent asked for negotiations with DVETs. labor exchange staff, or other clarification about the time frames for Response: VETS intends for each employment security staff such as establishing expected performance State to develop baseline data based on DVOP or LVER staff who serve veteran levels, when performance levels may be their past performance. This allows for job seekers. Additionally, the renegotiated, and the impact of consideration of economic conditions, respondent asked for clarification on receiving an incentive or renegotiating new business start-ups, State legislation, how States should determine which downward the initial performance and other factors which might impact VETS 200 Report is credited with levels. on an individual State’s performance. service in the event that an LVER and Response: The VETS performance Thus, as with the negotiations for a DVOP both serve the same individual. standards are intended to measure, at performance measures under Title I of Another respondent stated that since the State level, the effectiveness of WIA, States are given the flexibility to only two measures are exactly services provided to veterans. The State develop their own baseline data. consistent with the public labor Directors of Veterans’ Employment and Comment: One respondent suggested exchange measures, States will have a Training (DVETs) and representatives that comparisons be restricted to more difficult time integrating veterans from the State agencies will negotiate comparing veteran outcomes against services into the entire One-Stop the expected levels of performance, veterans served, rather than comparing system. based on past performance by the entire veterans against the total population of Response: The intent of the VETS public labor exchange system in their job seekers served by the public labor performance standards is to measure the State. State agencies retain the authority exchange. The respondent also services to veterans by the entire public to negotiate and establish performance suggested counting the number of labor exchange system. This system standards with the local workforce transactions and the number of times an includes One-Stop partners, public investment areas in their State. The five individual is served. labor exchange staff, and DVOP and VerDate 11 LVER staff. The measures are not therefrom with other than a count of any of those veteran job seekers designed to distinguish which particular dishonorable discharge; or was whose wages earned in the first and program provided services to veteran discharged or released from active duty second quarter following registration job seekers. The specifications for because of a service-connected were exclusively with the same generating the Veteran Job Seeker disability; or a member of a reserve employer from which wages were Entered Employment Rate measure and component who served on active duty earned in the quarter prior to the Veteran Job Seeker Employment during a period of war or in a campaign registration. Retention Rate at Six Months measure or expedition for which a campaign This measure contains the following are exactly the same as the public labor badge is authorized and was discharged elements. exchange measures, with the exception or released with other than a Entered Employment with a New that the VETS measures restrict the dishonorable discharge. Employer: To be counted as successfully applicant pool to veterans. The measure Other eligible persons must fit the entering employment, the veteran of Veteran Job Seeker Entered following criteria, established in section applicant must, in the first or second Employment Rate Following Receipt of 4101(5) (A), (B), and (C) of Title 38, quarter following the quarter of Staff-Assisted Services is an outcome U.S.C.: registration (Q∂1 or Q∂2), earn wages that the USES is not measuring. This, —The spouse of any person who died of from a different employer than from however, is an outcome measure on a service-connected disability; whom he/she earned wages in the services that are to be provided to —The spouse of any member of the quarter prior to registration (Q¥1). veterans by the entire public labor Armed Forces serving on active duty, Registered Veteran Job Seeker: exchange system. The revised ETA who at the time of application, is Veteran job seekers are considered to be 9002B and D Reports are proposed to listed in one or more of the following registered for a four quarter period capture the necessary information about categories and has been so listed for beginning with their registration quarter receipt of staff-assisted services and a total of more than ninety days: (i) and the subsequent three quarters outcomes following these staff-assisted Missing in action, (ii) captured in the (registration year). Veteran job seekers services. VETS, in conjunction with line of duty by a hostile force, (iii) who engaged in a labor exchange USES, has made every effort to forcibly detained or interned in the activity after their registration year has minimize reporting burdens incurred by line of duty by a foreign government expired, will be re-registered and will States while still requesting sufficient of power; or then begin a new registration year. information to demonstrate that veteran —The spouse of any person who has a Quarter of Registration: The calendar job seekers receive suitable services total disability permanent in nature quarter in which a veteran job seeker from the public labor exchange. The resulting from a service-connected completed an initial registration with specification for the revised VETS 200C disability. the public labor exchange (Q0) or in Report provides procedures for A veteran job seeker is counted as a which a previously registered job seeker generating reports of unduplicated registered veteran job seeker during the began a new registration year. counts of services to veteran job seekers quarter in which the registration occurs A veteran job seeker may be employed by DVOP and LVER staff. (registration quarter), and the or unemployed at the time of subsequent three quarters. This four registration. The key factor that C. VETS Performance Measures quarter period constitutes the determines whether the veteran job We establish three performance registration year. A registered veteran seeker is counted in the entered measures for the provision of services to job seeker who receives services during employment rate is if he/she earns veterans by the public labor exchange: the fourth quarter after the registration wages with a new employer in the • Veteran Job Seeker Entered quarter will begin a new registration follow-up quarters after the registration Employment Rate. year, or will be considered re-registered. quarter. A successful employment • Veteran Job Seeker Employment This veteran job seeker will be counted outcome is determined by comparing Retention Rate at Six Months. again during each of the four reporting the Employer Identification Numbers • Veteran Job Seeker Entered periods covering the subsequent (EIN) of registered veteran job seekers’ Employment Rate Following Receipt of registration year. If the veteran job employers prior to and following Staff-Assisted Services. seeker’s registration year lapses, and registration based on information The VETS performance measures after some time he or she returns to the contained in the UI wage record apply to public labor exchange services public labor exchange, that job seeker database, the State Directory of New provided to veterans as part of the One- would begin a new registration year. Hires database, or other available Stop delivery systems implemented by The VETS performance measures are records. Veteran job seekers who remain the States. These services include those defined below. employed exclusively with the same provided by DVOP and LVER staff and employer(s) (those found in Q¥1) (1) Veteran Job Seeker Entered other public labor exchange staff during the measurement period are Employment Rate (VJSEER) employed through funds under the excluded from the calculation. Wagner-Peyser Act. At their discretion, The count of registered job seekers States may include other publicly- who are veterans and who, in the first (2) Veteran Job Seeker Employment funded labor exchange services in this or second quarter following the Retention Rate at Six Months (VJSERR) measurement system for services to registration quarter (Q∂1 or Q∂2), The count of the number of registered veterans. earned wages from a new or different veteran job seekers who are veterans age The VETS performance measures employer than that from which the 19 and older at the time of registration, apply to all individuals who meet the registered veteran job seeker earned who in the first or second quarter definition of eligible veteran or other wages in the quarter prior to registration following registration (Q∂1 or Q∂2), eligible, as established by sections 4101 (Q¥1), divided by the difference earned wages from a new or different and 4211 of Title 38, U.S.C. An eligible between the count of veteran job seekers employer than that from which the veteran is a person who served on active who registered or re-registered with the applicant earned wages in the quarter duty for a period of more than 180 days labor exchange during any of the prior to registration (Q¥1), and who also and was discharged or released previous four calendar quarters and the continued to earn wages in the second VerDate 11 quarter following the quarter in which Q∂2) received staff-assisted services, levels of performance as submitted they entered employment (Q∂3 or Q∂4), and the count of any of those same job through the DVET and will compare the divided by the number of veteran job seekers whose wages earned in the first expected performance levels with the seekers who entered employment or second quarter following registration National averages, baseline information during the reporting period. (Q∂1 or Q∂2) were exclusively with the from other States, and the negotiated This measure contains the following same employer from which wages were levels of performance established for elements. earned in the quarter prior to other States, while taking into account Entered Employment with a New registration (Q¥1). factors including differences in Employer (age 19 and older): The base, This measure contains the following economic conditions and other factors or the denominator, of the VJSERR elements. as discussed above. The RAVET will measure is the number of veteran job Received Staff-Assisted Services: The analyze the quality of the data presented seekers age 19 and older at the time of elements of staff-assisted services can be by States, including the relevance of the registration who enter employment with found in the Revised ET Handbook 406. data, the source of the data, the time a new employer in the first or second These elements were developed in period from which the data were drawn, quarter after the quarter of registration. consultation with the USES workgroup The process for determining entered of State representatives, officials from and if the data are part of a trend or employment is described above in the the National Association of State anomalous. Established GPRA Annual VJSERR section. Workforce Agencies, and staff from Performance Plan goals for relevant Retained Employment Two Quarters VETS and ETA National and Regional measures will also be an important part after Entered Employment with a New offices. Draft Specifications for the ET of the Regional review and negotiation Employer (age 19 and older): To be 406 Handbook were published in the of performance levels. When the counted in this measure, veteran job Federal Register on June 6, 2001 (66 FR RAVET’s analysis is completed, if need seekers must earn wages in the second 30487 et seq.). be, there will be the opportunity, quarter following the quarter in which Entered Employment with a New through the DVET, for negotiations with they entered employment with a new Employer: To be counted as successfully the State to obtain mutually agreed employer. If a veteran job seeker enters entering employment, the veteran upon expected levels of performance. employment in the first quarter after applicant must meet the entered Provisions will also be made for registration, then this measure will employment criteria as described in renegotiation of performance levels if check to see if he/she is still earning measure (1) above, and have received circumstances arise that result in a wages in the third quarter after the staff-assisted services during the significant change in the factors used to quarter of registration. If the veteran job measurement period (Q0¥Q∂2 ), as establish the original levels. It is seeker enters employment in the second reported on the ETA 9002 Reports. understood that either a State or VETS quarter following the quarter of may elect to renegotiate performance as registration, then this measure will D. Levels of Performance and Rules for Application new information becomes available. check to see if he/she is still earning Factors which will be considered for wages in the fourth quarter after VETS will use the WIA Title I making changes include those discussed registration. framework (published in Training and above. Successful employment retention is Employment Guidance Letter No. 8–99) recorded for veteran job seekers, age 19 which was also used for negotiating and During the first year of and older at the time of registration, setting expected performance levels for implementation of the new performance who are determined to have entered public labor exchange services. measures in PY 2002, performance will employment according to the entered Accordingly, States, in conjunction with be reviewed as follows: States will be employment rate measure, and who their DVET, will develop baseline data held harmless from any consequences of earned wages with any employer in the for each of the measures based on failing to meet their performance goals. second quarter following the quarter in historical data, analyze the baseline Actual performance for each program which they were first determined to data, and propose performance levels year will be compared to negotiated have entered employment. for each measure based on that analysis. performance levels. If a State’s actual Each State will negotiate with its DVET performance varies from the expected (3) Veteran Job Seeker Entered to obtain mutually agreed upon performance level by minus two percent Employment Rate Following Receipt of expected levels of performance. or more, VETS will have the option of Staff-Assisted Services (VERS) In developing baseline data, States renegotiating new performance levels The count of registered job seekers should use two years of data if possible, with the State. VETS will offer technical who are veterans and who, in the but not less than one year in assistance as well as giving quarter of registration (Q0) or in the first determining trends for performance and consideration to external factors or second quarters following the quarter factors which may influence affecting performance levels. A negative of registration (Q∂1 or Q∂2) received performance. In establishing expected variation of five percent or more would staff-assisted services and who in the performance levels for each measure, result in the requirement of a State first or second quarter following the factors beyond the control of the State Corrective Action Plan (CAP) to rectify registration quarter (Q∂1 or Q∂2) earned are also to be considered. When the situation. Failure to submit or wages from a new or different employer submitting their proposed performance comply with a CAP could become the than that from which the registered job levels, States should be prepared to basis for sanctions. seeker earned wages in the quarter prior provide support for their proposed Signed at Washington, DC, this 16th day of to registration (Q¥ ); divided by the 1 levels by providing baseline April. difference between the count of job performance data, the methodology for seekers who are veterans who registered developing baseline data, and a Frederico Juarbe Jr., or re-registered with the labor exchange description of data sources. Assistant Secretary, Veterans’ Employment during any of the previous four calendar The Regional Administrator for and Training Service. quarters and who in the first or second Veterans’ Employment and Training [FR Doc. 02–9918 Filed 4–22–02; 8:45 am] quarter following registration (Q∂1 or (RAVET) will review the negotiated BILLING CODE 4510–79–P VerDate 11 Reader Aids Federal Register Vol. 67, No. 78 Tuesday, April 23, 2002 CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING APRIL Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–523–5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 523–5227 the revision date of each title. 3 CFR 989...... 15707 Presidential Documents 1030...... 19507 Executive orders and proclamations 523–5227 Executive Orders: 1210...... 17907 The United States Government Manual 523–5227 12473 (See EO 1280...... 17848 13262) ...... 18773 Other Services 1703...... 16011 13262...... 18773 1714...... 16969 Electronic and on-line services (voice) 523–3447 Proclamations: 1951...... 19101 Privacy Act Compilation 523–3187 7536...... 17599 3565...... 16969 523–6641 Public Laws Update Service (numbers, dates, etc.) 7537...... 17601 Proposed Rules: TTY for the deaf-and-hard-of-hearing 523–5229 7538...... 17905 12...... 19699 7539...... 18083 28...... 19357 ELECTRONIC RESEARCH 7540...... 19097 354...... 19524 7541...... 19099 500...... 17301 World Wide Web 7542...... 19633 905...... 15339 Full text of the daily Federal Register, CFR and other publications 7543...... 19635 920...... 15339, 18517 is located at: http://www.access.gpo.gov/nara Administrative Orders: 927...... 15747 Presidential 1205...... 15495 Federal Register information and research tools, including Public Determinations: Inspection List, indexes, and links to GPO Access are located at: 1219...... 17018 No. 2002–12 of April 1, 1710...... 17018 http://www.nara.gov/fedreg 2002 ...... 18461 E-mail 8 CFR 5 CFR 214...... 18062 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 410...... 15463 236...... 19508 an open e-mail service that provides subscribers with a digital 550...... 15463, 19319 241...... 19508 form of the Federal Register Table of Contents. The digital form 551...... 15463 248...... 18062 of the Federal Register Table of Contents includes HTML and 630...... 15463 286...... 15333 PDF links to the full text of each document. 1600...... 17603 Proposed Rules: To join or leave, go to http://listserv.access.gpo.gov and select 1650...... 17603 214...... 18065 Online mailing list archives, FEDREGTOC-L, Join or leave the list 7 CFR 235...... 18065 (or change settings); then follow the instructions. 248...... 18065 300...... 18463 286...... 15753 PENS (Public Law Electronic Notification Service) is an e-mail 301...... 18463, 18464 service that notifies subscribers of recently enacted laws. 318...... 18463 9 CFR To subscribe, go to http://hydra.gsa.gov/archives/publaws-l.html 319...... 18463 53...... 17605 and select Join or leave the list (or change settings); then follow 353...... 18463 72...... 17605, 18466 the instructions. 400...... 16285 401...... 16285 94...... 15334 FEDREGTOC-L and PENS are mailing lists only. We cannot 403...... 16285 113...... 15711 respond to specific inquiries. 405...... 16285 Proposed Rules: Reference questions. Send questions and comments about the 406...... 16285 Ch. III ...... 15501 Federal Register system to: [email protected] 409...... 16285 97...... 19524 130...... 19524 The Federal Register staff cannot interpret specific documents or 414...... 16285 113...... 16327 regulations. 415...... 16285 416...... 16285 10 CFR 422...... 16285 FEDERAL REGISTER PAGES AND DATE, APRIL 425...... 16285 20...... 16298 15333–15462...... 1 430...... 16285 Proposed Rules: 15463–15706...... 2 433...... 16285 50...... 16654 170...... 17490 15707–16010...... 3 435...... 16285 171...... 17490 16011–16284...... 4 437...... 16285 441...... 16285 430...... 17304 16285–16626...... 5 443...... 16285 710...... 16061 16627–16968...... 8 445...... 16285 824...... 15339 16969–17278...... 9 446...... 16285 17279–17602...... 10 447...... 16285 12 CFR 17603–17904...... 11 450...... 16285 3...... 16971 17905–18084...... 12 451...... 16285 208...... 16971 18085–18460...... 15 454...... 16285 225...... 16971 18461–18772...... 16 455...... 16285 226...... 16980 18773–19100...... 17 456...... 16285 264a...... 15335 19101–19318...... 18 458...... 16285 304...... 18793 19319–19506...... 19 916...... 16286 325...... 16971 19507–19633...... 22 917...... 16286 567...... 16971 VerDate 11-MAY-2000 23:32 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\23APCU.LOC pfrm04 PsN: 23APCU ii Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Reader Aids 609...... 16627 18 CFR 2520...... 17264 38 CFR 611...... 17907 Proposed Rules: 2700...... 18485 Ch. 1 ...... 16023 614...... 17907 Ch. 1 ...... 16071 4022...... 16950, 18112 20...... 16309 620...... 16627 284...... 19136 4022B ...... 16950 46...... 19678 951...... 18796 4044...... 16950, 18112 985...... 18806 19 CFR Proposed Rules: 39 CFR 1750...... 19321 181...... 15480, 19810 552...... 16668, 17760 111...... 18684 Proposed Rules: 191...... 16634 1926...... 18145 224...... 16023 563b...... 17230 Proposed Rules: 30 CFR 229...... 16023 574...... 17230 230...... 16024 141...... 16664 75...... 18822 575...... 17230 142...... 16664 233...... 16023 201...... 19109 266...... 16023 13 CFR 20 CFR 206...... 19109 273...... 16023 212...... 19109 Proposed Rules: 121...... 19637 Proposed Rules: 216...... 19109 111...... 18842 Proposed Rules: 404...... 19138 217...... 19109 121 ...... 16063, 17020, 19317 218...... 19109 40 CFR 21 CFR 219...... 19109 52 ...... 15335, 15336, 16026, 14 CFR 173...... 15719 220...... 19109 16638, 16640, 16642, 16644, 201...... 16304 227...... 19109 17007, 17286, 17624, 17939, 23...... 18807 330...... 16304 228...... 19109 39 ...... 15468, 15470, 15472, 18115, 18493, 18497, 19335, 331...... 16304 230...... 19109 19337, 19515, 19682, 19685 15473, 15475, 15476, 15714, 341...... 16304 241...... 19109 15717, 16011, 16983, 16987, 62...... 17944 346...... 16304 243...... 19109 63 ...... 15486, 16317, 16582, 16991, 16994, 17279, 17917, 355...... 16304 17923, 17929, 17931, 17934, Proposed Rules: 16614, 17762, 17824 358...... 16304 58...... 19140 18810, 18813, 18815, 19101, 81 ...... 16646, 17939, 19337 369...... 16304 72...... 19140 19104, 19322, 19327, 19511, 148...... 16262 510...... 17282 936...... 16341 19637, 19640, 19641, 19644, 180 ...... 15727, 16027, 17631, 520...... 17284 938...... 18518 19646, 19650, 19652, 19655, 19114, 19120, 19339 522 ...... 17282, 18085, 18086 261...... 16262 19657, 19659, 19661, 19663, 701...... 16304 31 CFR 19809, 19810 268...... 16262, 17119 Proposed Rules: 210...... 17896 71 ...... 15478, 15479, 18059, 271 ...... 16262, 17636, 19517 184...... 18834 Ch. V...... 16308 18467, 18817, 19107, 19108, 300...... 19130 212...... 15344 19330, 19514, 19666 302...... 16262 872...... 16338 32 CFR 97 ...... 16013, 16014, 19667, 721...... 17643 199 ...... 15721, 18114, 18825 745...... 15489 19669 22 CFR 326...... 17616 Proposed Rules: 330...... 18468 505...... 17618 Ch. VI...... 17258 41...... 18821 9...... 17122 62...... 17611 706 ...... 18485, 18487, 18488, 51...... 17954, 18528 1300...... 17258 18489, 18490, 18491 1310...... 17258 Proposed Rules: 52 ...... 15345, 16669, 17317, 213...... 17655 806b...... 17619 17669, 17954, 17955, 18149, Proposed Rules: 935...... 16997 Ch. I ...... 19534 18528, 18547, 19148, 19369, 24 CFR Proposed Rules: 19730 25...... 16329, 16656 199...... 17948, 19141 39 ...... 15755, 15758, 15760, 3284...... 18398 55...... 17955 62...... 17321, 17961 15762, 15763, 16064, 16067, 50...... 19492 33 CFR 1005...... 19492 63 ...... 15510, 15674, 16154, 16069, 16330, 16331, 16333, 100...... 17621, 17622 16335, 17305, 17306, 18141, 16343, 16625, 17492 25 CFR 117...... 18492, 19113 70...... 15767 19132, 19134 140...... 18493 71 ...... 15502, 15503, 15504, Proposed Rules: 81...... 17955 542...... 19713 165 ...... 15484, 15744, 16016, 96...... 17954 18517, 19135, 19710, 19711 17284, 17667, 18523, 19333, 382...... 17308 97...... 17954 26 CFR 19673, 19674, 19676 122...... 17122 Proposed Rules: 123...... 17122 16 CFR 1...... 18988 54...... 18988 100...... 17665 124...... 17122 305...... 17936 602...... 18988 117...... 16016, 18521 125...... 17122 147...... 15505 312...... 18818 Proposed Rules: 141...... 19030 165 ...... 15507, 16668, 17314, Proposed Rules: 1 ...... 17309, 18834, 18835, 180...... 16073, 18150 19142, 19144, 19365, 19367, 310...... 15767 19713 228...... 15348 19728 54...... 19713 261...... 18528 167...... 18527 17 CFR 301...... 18839 262...... 18528 264...... 18528 602...... 19713 34 CFR 230...... 19671, 19848 265...... 18528 239...... 19848 27 CFR Proposed Rules: 270...... 18528 240...... 19671 34...... 18072 721...... 16345 20...... 17937 270...... 19848 1603...... 16670 274...... 19848 40...... 19332 36 CFR Proposed Rules: 252...... 18086 703...... 16018 41 CFR 3...... 19358 Proposed Rules: 1254...... 17286 101-25...... 17649 229...... 19896 4...... 17312 Proposed Rules: 301-10...... 17946 230...... 19886, 19914 1190...... 15509 28 CFR 301-53...... 17946 239...... 19914 1191...... 15509 240...... 19896 89...... 17027 1253...... 18146 42 CFR 249...... 19896, 19914 68c ...... 17650 274...... 19886 29 CFR 37 CFR 275...... 19500 1926...... 18091 Proposed Rules: 43 CFR 279...... 19500 1979...... 15454 201...... 18148 423...... 19092 VerDate 11-MAY-2000 23:32 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\23APCU.LOC pfrm04 PsN: 23APCU Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Reader Aids iii 3130...... 17866 1 ...... 16647, 17009, 18827 97...... 16683 Proposed Rules: 3160...... 17866 2...... 17009, 17288 171...... 15510 3430...... 17962 11...... 18502 48 CFR 172...... 15510 3470...... 17962 25...... 17288 1823...... 17016 173...... 15510 3800...... 17962 26...... 17009 1836...... 17016 175...... 15510 36...... 17013 1852...... 17016 191...... 16355 44 CFR 52...... 16322 Proposed Rules: 192...... 16355 64...... 16030 54 ...... 15490, 17014, 19809 16...... 19952 195...... 16355 61...... 17009 22...... 19952 533...... 19536 45 CFR 63...... 18827 27...... 17278 567...... 15769 1000...... 19518 69...... 15490, 17009 31...... 19952 571...... 15769 Proposed Rules: 73 ...... 15493, 15735, 15736, 37...... 19952 574...... 15769 701...... 17528 16651, 16652, 17014, 17654, 52...... 17278, 19952 575...... 15769 702...... 17528 18832, 19693 203...... 18160 703...... 17528 74...... 16652 208...... 15351 50 CFR 704...... 17528 76...... 17015 216...... 15351 705...... 17528 87...... 17288 225...... 18161 17 ...... 15337, 18356, 19812 706...... 17528 90...... 16652 223...... 18833 707...... 17528 Proposed Rules: 49 CFR 229...... 15493 708...... 17528 0...... 18560 171...... 15736 600...... 15338 1626...... 18845 1 ...... 17036, 17325, 18560 172...... 15736 660 ...... 15338, 16322, 16323, 1639...... 19342 2...... 16683, 17038 173...... 15736 18117, 18512 2551...... 18846 25...... 16347 174...... 15736 679...... 16325, 18129 2552...... 18847 52...... 16347 176...... 15736 Proposed Rules: 61...... 17036 178...... 15736 17 ...... 15856, 16492, 18572 46 CFR 69...... 17036 180...... 15736 92...... 16707 45...... 19685 73 ...... 15768, 15769, 16350, 216...... 19970 216...... 19370 Proposed Rules: 16351, 16673, 16706, 17041, 229...... 16032 600 ...... 15516, 19152, 19154 151...... 19730 17669, 17670, 17963, 19151, 232...... 17556 622...... 16359 356...... 18547 19152, 19732 238...... 19970 635...... 17349 540...... 19535, 19730 74...... 16683 533...... 16052 648...... 16079, 16362 76...... 18848 571...... 19343, 19518 654...... 19155 47 CFR 80...... 16683 573...... 19693 660 ...... 17353, 17354, 18576 0...... 18827 90...... 16351, 16683 659...... 15725 679...... 15517 VerDate 11-MAY-2000 23:32 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4712 E:\FR\FM\23APCU.LOC pfrm04 PsN: 23APCU iv Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Reader Aids REMINDERS promulgation; various comments due by 4-29-02; The items in this list were States; air quality planning COMMENTS DUE NEXT published 2-26-02 [FR 02- purposes; designation of 03515] editorially compiled as an aid WEEK to Federal Register users. areas: ENERGY DEPARTMENT Inclusion or exclusion from Massachusetts; published 2- Acquisition regulations: this list has no legal 19-02 AGRICULTURE DEPARTMENT National Industrial Security significance. Montana; published 2-21-02 Agricultural Marketing Program; security Air quality implementation amendments; comments plans; approval and Service RULES GOING INTO due by 4-29-02; published promulgation; various Cotton research and 3-28-02 [FR 02-07298] EFFECT APRIL 22, 2002 States: promotion order: ENERGY DEPARTMENT Minnesota; published 2-21- Cotton Board Rules and Federal Energy Regulatory AGRICULTURE 02 Regulations; amendment; Commission DEPARTMENT Missouri; published 2-21-02 comments due by 5-2-02; published 4-2-02 [FR 02- Practice and procedure: Federal Crop Insurance Ohio; published 2-21-02 Corporation 07919] Asset retirement obligations; Utah; published 2-21-02 Administrative regulations: Pears (winter) grown in— accounting and reporting; Hazardous waste: Appeals of adverse Oregon and Washington; technical conference; decisions made by Risk Corrective Action comments due by 5-3-02; comments due by 4-29- Management Agency; Management Units; published 4-3-02 [FR 02- 02; published 4-4-02 [FR procedures; published 3- published 1-22-02 07918] 02-08133] Superfund program: 22-02 Potatoes (Irish) grown in— ENVIRONMENTAL National oil and hazardous PROTECTION AGENCY AGRICULTURE Colorado; comments due by substances contingency DEPARTMENT 4-30-02; published 3-1-02 Air pollution control: plan— Farm Service Agency [FR 02-04706] Interstate ozone transport National priorities list Administrative regulations: COMMERCE DEPARTMENT reduction— update; published 2-19- Nitrogen oxides; State Appeals of adverse National Oceanic and 02 implementation plan decisions made by Risk Atmospheric Administration Management Agency; National priorities list call, technical Fishery conservation and procedures; published 3- update; published 2-19- amendments, and management: 22-02 02 Section 126 rules; National priorities list Alaska; fisheries of AGRICULTURE response to court update; published 2-20- Exclusive Economic DEPARTMENT decisions; comments 02 Zone— due by 4-29-02; Food Safety and Inspection published 4-12-02 [FR Service FEDERAL North Pacific Groundfish COMMUNICATIONS Observer Program; 02-08929] Meat and poultry inspection: COMMISSION comments due by 5-2- ENVIRONMENTAL Ratites and squabs; Digital television stations; table 02; published 4-2-02 PROTECTION AGENCY mandatory inspection; of assignments: [FR 02-07930] published 3-22-02 Air programs; State authority South Carolina; published 3- Caribbean, Gulf of Mexico, delegations: AGRICULTURE 11-02 and South Atlantic DEPARTMENT West Virginia; comments Television stations; table of fisheries— due by 5-2-02; published Grain Inspection, Packers assignments: Gulf of Mexico and South 4-2-02 [FR 02-07939] and Stockyards Atlantic coastal Colorado; published 3-12-02 ENVIRONMENTAL Administration migratory pelagic PROTECTION AGENCY Fees: FEDERAL EMERGENCY resources and Gulf of Official inspection and MANAGEMENT AGENCY Mexico reef fish; Air programs; State authority weighing services; National Flood Insurance comments due by 4-29- delegations: published 3-21-02 Program: 02; published 2-27-02 West Virginia; comments COMMERCE DEPARTMENT Public entity insurers; pilot [FR 02-04672] due by 5-2-02; published project; published 3-22-02 4-2-02 [FR 02-07940] National Oceanic and Magnuson-Stevens Act Atmospheric Administration HEALTH AND HUMAN provisions— Hazardous waste: Fishery conservation and SERVICES DEPARTMENT Exempted fishing permits; Identification and listing— management: Children and Families comments due by 4-30- Exclusions; comments due Alaska; fisheries of Administration 02; published 4-18-02 by 4-29-02; published Exclusive Economic Assets for Independence [FR 02-09327] 3-15-02 [FR 02-06153] Zone— Demonstration Program; West Coast States and Superfund program: Bering Sea/Aleutian individual development Western Pacific National oil and hazardous Islands crab; Western accounts for low income fisheries— substances contingency Alaska Community individuals and families; Pacific Coast groundfish; plan— correction; published 4-22- Development Quota comments due by 4-30- National priorities list 02 Program; published 3- 02; published 4-10-02 update; comments due 22-02 TRANSPORTATION [FR 02-08691] by 4-29-02; published ENVIRONMENTAL DEPARTMENT Pacific Coast groundfish; 2-26-02 [FR 02-04403] PROTECTION AGENCY Federal Aviation comments due by 4-30- FEDERAL Air pollution control: Administration 02; published 4-10-02 COMMUNICATIONS [FR 02-08690] State operating permits Airworthiness directives: COMMISSION programs— Boeing; published 3-18-02 DEFENSE DEPARTMENT Digital television stations; table Kentucky; published 2-21- Sikorsky; published 3-18-02 Engineers Corps of assignments: 02 SOCATA-Groupe Natural disaster procedures; Michigan; comments due by Air quality implementation AEROSPATIALE; preparedness, response, 4-29-02; published 3-11- plans; √A√approval and published 3-11-02 and recovery activities; 02 [FR 02-05709] VerDate 11-MAY-2000 23:32 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\23APCU.LOC pfrm04 PsN: 23APCU Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Reader Aids v Radio stations; table of Approved spent fuel storage Bombardier; comments due imposition and collection; assignments: casks; list; comments due by 4-29-02; published 3- comments due by 4-30-02; Georgia; comments due by by 4-29-02; published 2- 28-02 [FR 02-07409] published 3-28-02 [FR 02- 4-29-02; published 4-5-02 11-02 [FR 02-03228] TRANSPORTATION 07652] [FR 02-08254] STATE DEPARTMENT DEPARTMENT TREASURY DEPARTMENT FEDERAL EMERGENCY Consular services; fee Federal Aviation Customs Service MANAGEMENT AGENCY schedule; comments due by Administration Air commerce: Disaster assistance: 4-29-02; published 3-28-02 Airworthiness directives: Air cargo manifest; air [FR 02-06863] Hazard mitigation planning Bombardier; comments due waybill number re-use; and Hazard Mitigation TRANSPORTATION by 4-29-02; published 4-3- comments due by 4-30- Grant Program; comments DEPARTMENT 02 [FR 02-07994] 02; published 3-1-02 [FR due by 4-29-02; published Coast Guard Fokker; comments due by 02-04954] 2-26-02 [FR 02-04321] Ports and waterways safety: 4-29-02; published 3-28- TREASURY DEPARTMENT FEDERAL EMERGENCY Beverly, MA; safety zone; 02 [FR 02-07429] Internal Revenue Service comments due by 5-1-02; MANAGEMENT AGENCY TRANSPORTATION Income taxes: published 3-25-02 [FR 02- Fire prevention and control: DEPARTMENT 07002] Deductions and credits; Federal Aviation disallowance for failure to Firefighters Assistance Grant Cumberland Bay, NY; safety Administration file timely return; cross- Program; comments due zone; comments due by Airworthiness directives: reference; comments due by 4-29-02; published 2- 5-2-02; published 4-2-02 27-02 [FR 02-04388] Fokker; comments due by by 4-29-02; published 1- [FR 02-07915] 5-2-02; published 4-4-02 HEALTH AND HUMAN 29-02 [FR 02-02045] Groton Long Point Yacht [FR 02-08172] SERVICES DEPARTMENT Club, CT; safety zone; Procedure and administration: Centers for Medicare & comments due by 4-29- TRANSPORTATION Agent for certain purposes; Medicaid Services 02; published 3-29-02 [FR DEPARTMENT definition; comments due Federal Aviation by 5-2-02; published 2-1- Medicare: 02-07572] Nahant Bay, Lynn, MA; Administration 02 [FR 02-02533] Ambulance services fee Airworthiness directives: schedule and physician safety zone; comments TREASURY DEPARTMENT certification requirements due by 5-1-02; published Israel Aircraft Industries, Agency information collection for coverage of 3-20-02 [FR 02-06762] Ltd.; comments due by 5- activities: nonemergency ambulance Willamette River, OR; 3-02; published 4-3-02 Submission for OMB review; services; comments due security zone; comments [FR 02-07750] comment request; by 4-29-02; published 2- due by 5-2-02; published TRANSPORTATION comments due by 4-29- 27-02 [FR 02-04548] 3-18-02 [FR 02-06361] DEPARTMENT 02; published 3-29-02 [FR INTERIOR DEPARTMENT TRANSPORTATION Federal Aviation 02-07563] DEPARTMENT Administration Fish and Wildlife Service VETERANS AFFAIRS Procedural regulations: Airworthiness directives: DEPARTMENT Endangered and threatened Air Transportation Safety McDonnell Douglas; species: Adjudication; pensions, and System Stabilization comments due by 4-29- compensation, dependency, Critical habitat Act; air carriers 02; published 3-14-02 [FR etc. designations— compensation procedures; 02-06097] Accrued benefits; evidence; Newcomb’s snail; comments due by 4-30- MT-Propeller Entwicklung comments due by 5-3-02; comments due by 4-29- 02; published 4-16-02 [FR GMBH; comments due by published 3-4-02 [FR 02- 02; published 3-29-02 02-09243] 4-29-02; published 2-27- 05134] [FR 02-07724] TRANSPORTATION 02 [FR 02-04587] Various plants from Lanai, DEPARTMENT Rolls-Royce plc; comments HI; comments due by Federal Aviation due by 4-29-02; published LIST OF PUBLIC LAWS 5-3-02; published 3-4-02 Administration 2-26-02 [FR 02-04367] [FR 02-04335] Airworthiness directives: Saab; comments due by 4- This is a continuing list of Migratory bird hunting: Airbus; comments due by 5- 29-02; published 4-3-02 public bills from the current Seasons, limits, and 3-02; published 4-3-02 [FR 02-07992] session of Congress which have become Federal laws. It shooting hours; [FR 02-07995] Special conditions— may be used in conjunction establishment, etc.; TRANSPORTATION Lancair Co. Model LC40- comments due by 5-1-02; with ‘‘PLUS’’ (Public Laws DEPARTMENT 550FG-E; comments Update Service) on 202–523– published 3-19-02 [FR 02- Federal Aviation due by 4-29-02; 06527] 6641. This list is also Administration published 3-28-02 [FR available online at http:// JUSTICE DEPARTMENT Airworthiness directives: 02-07503] www.nara.gov/fedreg/ Immigration and Boeing; comments due by TRANSPORTATION plawcurr.html. Naturalization Service 4-30-02; published 3-1-02 DEPARTMENT Immigration: [FR 02-04888] National Highway Traffic The text of laws is not TRANSPORTATION Safety Administration published in the Federal $3.00 immigration user fee Register but may be ordered DEPARTMENT Meetings: for certain commercial in ‘‘slip law’’ (individual Federal Aviation vessel passengers Motorcoach safety pamphlet) form from the Administration previously exempt; improvements; public Superintendent of Documents, comments due by 5-3-02; Airworthiness directives: meeting; comments due U.S. Government Printing published 4-3-02 [FR 02- Boeing; comments due by by 4-29-02; published 3- Office, Washington, DC 20402 08011] 5-2-02; published 3-18-02 28-02 [FR 02-07366] (phone, 202–512–1808). The NUCLEAR REGULATORY [FR 02-06332] TRANSPORTATION text will also be made COMMISSION TRANSPORTATION DEPARTMENT available on the Internet from Spent nuclear fuel and high- DEPARTMENT Transportation Security GPO Access at http:// level radioactive waste; Federal Aviation Administration www.access.gpo.gov/nara/ independent storage; Administration Passenger civil aviation nara005.html. Some laws may licensing requirements: Airworthiness directives: security service fees; not yet be available. VerDate 11-MAY-2000 23:32 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00005 Fmt 4712 Sfmt 4711 E:\FR\FM\23APCU.LOC pfrm04 PsN: 23APCU vi Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Reader Aids H.R. 1432/P.L. 107–160 H.R. 2577/P.L. 107–163 H.R. 3072/P.L. 107–166 enacted public laws. To To designate the facility of the To designate the facility of the To designate the facility of the subscribe, go to http:// United States Postal Service United States Postal Service United States Postal Service hydra.gsa.gov/archives/ located at 3698 Inner located at 310 South State located at 125 Main Street in publaws-l.html or send E-mail Perimeter Road in Valdosta, Street in St. Ignace, Michigan, Forest City, North Carolina, as to [email protected] the ‘‘Vernon Tarlton Post Georgia, as the ‘‘Major Lyn as the ‘‘Bob Davis Post Office with the following text McIntosh Post Office Office Building’’. (Apr. 18, Building’’. (Apr. 18, 2002; 116 message: Building’’. (Apr. 18, 2002; 116 Stat. 126) 2002; 116 Stat. 129) Stat. 123) H.R. 3379/P.L. 107–167 H.R. 2876/P.L. 107–164 SUBSCRIBE PUBLAWS-L H.R. 1748/P.L. 107–161 To designate the facility of the Your Name. To designate the facility of the To designate the facility of the United States Postal Service United States Postal Service United States Postal Service located at 375 Carlls Path in located at 805 Glen Burnie located in Harlem, Montana, Deer Park, New York, as the Note: This service is strictly Road in Richmond, Virginia, as the ‘‘Francis Bardanouve ‘‘Raymond M. Downey Post for E-mail notification of new as the ‘‘Tom Bliley Post Office United States Post Office Office Building’’. (Apr. 18, laws. The text of laws is not Building’’. (Apr. 18, 2002; 116 Building’’. (Apr. 18, 2002; 116 2002; 116 Stat. 130) available through this service. Stat. 127) Stat. 124) Last List April 8, 2002 PENS cannot respond to H.R. 1749/P.L. 107–162 H.R. 2910/P.L. 107–165 specific inquiries sent to this To designate the facility of the To designate the facility of the Public Laws Electronic address. United States Postal Service United States Postal Service located at 685 Turnberry Road located at 3131 South Crater Notification Service in Newport News, Virginia, as Road in Petersburg, Virginia, (PENS) the ‘‘Herbert H. Bateman Post as the ‘‘Norman Sisisky Post Office Building’’. (Apr. 18, Office Building’’. (Apr. 18, PENS is a free electronic mail 2002; 116 Stat. 125) 2002; 116 Stat. 128) notification service of newly VerDate 11-MAY-2000 23:32 Apr 22, 2002 Jkt 197001 PO 00000 Frm 00006 Fmt 4712 Sfmt 4711 E:\FR\FM\23APCU.LOC pfrm04 PsN: 23APCU