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Contents Federal Register Vol. 67, No. 229
Wednesday, November 27, 2002
Agriculture Department Pent Products, Inc., et al., 70975–70976 See Animal and Plant Health Inspection Service Presto Products et al., 70976–70977 See Food and Nutrition Service Reliant Bolt, Inc., et al., 70977–70978 See Forest Service Siemens Medical Solutions, Inc., 70978 See Grain Inspection, Packers and Stockyards U.S. Repeating Arms Co., 70978 Administration Adjustment assistance and NAFTA transitional adjustment assistance: Animal and Plant Health Inspection Service Cawood Manufacturing Co., Inc., et al., 70970–70972 PROPOSED RULES Goodyear Dunlop Tires, N.A. Ltd., 70972 Interstate transportation of animals and animal products NAFTA transitional adjustment assistance: (quarantine): Bristol Bay Native Association, 70978–70979 Blood and tissue collection at slaughtering Glen Oaks Industries, Inc., 70979 establishments, 70864–70875
Army Department Energy Department See Engineers Corps See Federal Energy Regulatory Commission NOTICES Centers for Disease Control and Prevention Floodplain and wetlands protection; environmental review NOTICES determinations; availability, etc.: Agency information collection activities: Miamisburg Closure Project, OH; land transfer, 70936– Proposed collection; comment request, 70956–70960 70937
Coast Guard Engineers Corps RULES PROPOSED RULES Drawbridge operations: Danger zones and restricted areas: New Jersey, 70846–70847 Sandy Hook Bay, NJ; Naval Weapons Station EARLE, PROPOSED RULES 71013–71015 Ports and waterways safety: New York Marine Inspection Zone and Captain of Port Zone, NY; safety and security zones, 70892–70897 Environmental Protection Agency RULES Commerce Department Air quality implementation plans; approval and See Industry and Security Bureau promulgation; various States: See International Trade Administration Indiana; withdrawn, 70850 See National Institute of Standards and Technology Water supply: See National Oceanic and Atmospheric Administration National primary drinking water regulations— See Patent and Trademark Office Public notification, consumer confidence report, and NOTICES primacy rules; minor revisions, 70850–70858 Agency information collection activities: NOTICES Submission for OMB review; comment request, 70924– Grants and cooperative agreements; availability, etc.: 70925 Tribal Open Dump Cleanup Project, 70943 Pesticide registration, cancellation, etc.: Defense Department Animal Plant and Health Inspection Service, 70943– See Engineers Corps 70945 Rhone-Poulenc Ag Co., 70945–70946 Drug Enforcement Administration Pesticides; emergency exemptions, etc.: NOTICES Metolachlor, etc., 70946–70949 Applications, hearings, determinations, etc.: Reports and guidance documents; availability, etc.: Graves, James F., M.D., 70968 QTRACER2 program manual and cave and karst K.V.M. Enterprises, 70968–70969 terminology lexicon, 70949–70950 Superfund; response and remedial actions, proposed Employment and Training Administration settlements, etc.: NOTICES Malvern TCE Site, PA, 70950 Adjustment assistance: Acterna Corp., 70972 Executive Office of the President Altadis U.S.A. Inc., 70972 See Presidential Documents Fleming Lumber Co., Inc., 70973 See Trade Representative, Office of United States Hynix Semiconductor America, Inc., 70973 Kane Handle Co., 70973 LaGrange Foundry, 70973 Farm Credit Administration Leslie Fay Marketing, Inc., et al., 70973–70974 NOTICES NCS Pearson et al., 70974–70975 Meetings; Sunshine Act, 70950–70951
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Federal Aviation Administration Fish and Wildlife Service PROPOSED RULES PROPOSED RULES Airports: Endangered and threatened species: Passenger facility charge rule; air carriers compensation; Critical habitat designations— revisions, 70878–70889 Cactus ferruginous pygmy-owl; Arizona distinct Airworthiness directives: population segment, 71031–71064 Boeing, 70875–70877 NOTICES Endangered and threatened species and marine mammal permit applications, 70961–70963 Federal Energy Regulatory Commission Marine mammal permit applications, 70963 PROPOSED RULES Meetings: Electric utilities (Federal Power Act): Aquatic Nuisance Species Task Force, 70963 Undue discrimination; remedying through open access transmission service and standard electricity market Food and Nutrition Service design PROPOSED RULES Technical conferences, 70890 Food Stamp Program: Electric utilities (Federal Power Act), natural gas companies Civil rights data collection, 70861–70864 (Natural Gas Act), and oil pipeline companies NOTICES (Interstate Commerce Act): Agency information collection activities: Asset retirement obligations; accounting, financial Proposed collection; comment request, 70916–70922 reporting, and rate filing requirements Correction, 70890–70891 Forest Service NOTICES NOTICES Electric rate and corporate regulation filings: Agency information collection activities: Athens Generating Co., L.P., et al., 70941–70942 Proposed collection; comment request, 70923–70924 Hydroelectric applications, 70942–70943 Applications, hearings, determinations, etc.: Eastern Shore Natural Gas Co., 70937 Grain Inspection, Packers and Stockyards Administration Egan Hub Partners, L.P., 70937–70938 NOTICES Enogex Inc., 70938–70939 State export port locations: Florida Gas Transmission Co., 70939 Mississippi agency delegation cancelled, 70924 Lee 8 Storage Partnership, 70939–70940 NSTAR Electric & Gas Corp. et al., 70940 Health and Human Services Department Stingray Pipeline Co., L.L.C., 70940 See Centers for Disease Control and Prevention Viking Gas Transmission Co., 70941 NOTICES Meetings: Bioethics, President’s Council, 70955–70956 Federal Maritime Commission Minority Health Advisory Committee, 70956 NOTICES Agreements filed, etc., 70951 Housing and Urban Development Department Ocean transportation intermediary licenses: NOTICES Safe Ocean Line, Inc., et al., 70951–70952 Agency information collection activities: Proposed collection; comment request, 70960 Federal Reserve System Submission for OMB review; comment request, 70960– NOTICES 70961 Banks and bank holding companies: Change in bank control, 70952 Immigration and Naturalization Service Formations, acquisitions, and mergers, 70952 NOTICES Agency information collection activities: Submission for OMB review; comment request, 70969– Federal Trade Commission 70970 RULES Textile Fiber Products Identification Act: Indian Affairs Bureau Elasterell-p; new generic fiber name and definition, NOTICES 70835–70839 Agency information collection activities: NOTICES Proposed collection; comment request, 70963–70965 Prohibited trade practices: Wal-Mart Stores, Inc., et al., 70952–70955 Industry and Security Bureau NOTICES Financial Management Service Chemical Weapons Convention; impact on commercial See Fiscal Service activities involving Schedule 1 chemicals; comment request, 70926–70927
Fiscal Service Interior Department NOTICES See Fish and Wildlife Service Agency information collection activities: See Indian Affairs Bureau Proposed collection; comment request, 71010 See National Park Service
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Internal Revenue Service National Oceanic and Atmospheric Administration RULES RULES Excise taxes: Fishery conservation and management: Liability for insurance premium, 70845–70846 Alaska; fisheries of Exclusive Economic Zone— Income taxes: Gulf of Alaska groundfish, 70859–70860 States and local governments; tax-exempt bonds issued Pacific cod, 70858 for output facilities PROPOSED RULES Correction, 70845 Fishery conservation and management: PROPOSED RULES Northeastern United States fisheries— Income taxes: Summer flounder, scup, and black sea bass, 70904– Mixed use output facilities; guidance 70915 Correction, 70891 NOTICES Relative values of optional forms of benefit; disclosure Ocean and coastal resource management: Correction, 70891–70892 Marine sanctuaries— Taxable stock transactions; information reporting Olympic Coast National Marine Sanctuary, WA; Area requirements to be Avoided; amendments, 70933–70934 Hearing date change, 70891 Permits: NOTICES Endangered and threatened species, 70934–70935 Agency information collection activities: Exempted fishing, 70935–70936 Proposed collection; comment request, 71010–71011 National Park Service International Trade Administration PROPOSED RULES NOTICES Commerical use authorizations; issuance and Countervailing duties: administration, 70899–70904 Dynamic random access memory semiconductors from— Korea, 70927–70932 Nuclear Regulatory Commission Meetings: RULES Textile ‘‘marker system’’; development exploration Organization, functions, and authority delegations: information gathering, 70932–70933 Public document room address change and corrections to information collection provisions Correction, 70835 Justice Department NOTICES See Drug Enforcement Administration Environmental statements; availability, etc.: See Immigration and Naturalization Service University of Wyoming, 70980–70983 PROPOSED RULES Meetings: Radiation Exposure Compensation Act Amendments of Reactor Safeguards Advisory Committee, 70983 2000; claims: Uranium millers, ore tranporters, and miners; coverage Office of United States Trade Representative expansion; representation and fees, 70892 See Trade Representative, Office of United States NOTICES Agency information collection activities: Patent and Trademark Office Submission for OMB review; comment request, 70965– RULES 70966 Patent and trademark cases: Pollution control; consent judgments: Fee revisions (2003 FY), 70847–70850 Chaplin, James R., et al., 70966–70967 Motorola, Inc., et al., 70967 Presidential Documents Privacy Act: PROCLAMATIONS Systems of records, 70967–70968 Special observances: National Family Week (Proclamation 7630), 71065–71068 Labor Department See Employment and Training Administration Public Debt Bureau See Fiscal Service National Aeronautics and Space Administration NOTICES Public Health Service Agency information collection activities: See Centers for Disease Control and Prevention Submission for OMB review; comment request, 70979– 70980 Saint Lawrence Seaway Development Corporation PROPOSED RULES Seaway regulations and rules: National Archives and Records Administration Automatic Identification System transponder, 70897– NOTICES 70899 Meetings: Records of Congress Advisory Committee, 70980 Securities and Exchange Commission PROPOSED RULES National Institute of Standards and Technology Securities, etc.: NOTICES Sarbanes-Oxley Act of 2002; implementation— Meetings: Audits and reviews; relevant records retention, 71017– Advanced Technology Visiting Committee, 70933 71025
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NOTICES See Surface Transportation Board Investment Company Act of 1940: NOTICES Exemption applications— Aviation proceedings: AIG Life Insurance Co. et al., 70983–70985 Agreements filed; weekly receipts, 71009 Meetings; Sunshine Act, 70985 Certificates of public convenience and necessity and Securities: foreign air carrier permits; weekly applications, Suspension of trading— 71009 Global Vision Holdings, Inc., 70985 Self-regulatory organizations; proposed rule changes: Treasury Department American Stock Exchange LLC, 70985–70986 See Fiscal Service Chicago Stock Exchange, Inc., 70986–70987 See Internal Revenue Service Government Securities Clearing Corp., 70987–70988 International Securities Exchange LLC, 70988–70990 United States Sentencing Commission National Association of Securities Dealers, Inc., 70990– NOTICES 70994 Sentencing guidelines and policy statements for Federal New York Stock Exchange, Inc., 70994–70999 courts, 70999–71007 Sentencing Commission, United States See United States Sentencing Commission Separate Parts In This Issue State Department RULES Part II International Traffic in Arms regulations: Army Department, Engineers Corps, 71013–71015 U.S. Munitions List; amendments, 70839–70845 Visas; immigrant documentation: Part III Classification symbols Securities and Exchange Commission, 71017–71025 Correction, 70839 NOTICES Part IV Meetings: Agriculture Department, Forest Service, 71027–71030 Public Diplomacy, U.S. Advisory Commission, 71007 Part V Surface Transportation Board Interior Department, Fish and Wildlife Service, 71031– NOTICES 71064 Railroad services abandonment: Union Pacific Railroad Co., 71009–71010 Part VI Executive Office of the President, Presidential Documents, Trade Representative, Office of United States 71065–71068 NOTICES Meetings: Industry Sector Advisory Committees— Textiles and Apparel; cancellation, 71007 Reader Aids Trade Act of 1974: Consult the Reader Aids section at the end of this issue for Pedestal actuators from China; import restrictions; phone numbers, online resources, finding aids, reminders, comment request, 71007–71009 and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents Transportation Department LISTSERV electronic mailing list, go to http:// See Coast Guard listserv.access.gpo.gov and select Online mailing list See Federal Aviation Administration archives, FEDREGTOC-L, Join or leave the list (or change See Saint Lawrence Seaway Development Corporation settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR 2...... 70847 Proclamations: 40 CFR 7630...... 71067 52...... 70850 141...... 70850 7 CFR 142...... 70850 Proposed Rules: 272...... 70861 50 CFR 679 (2 documents) ...... 70858, 9 CFR 70859 Proposed Rules: Proposed Rules: 71...... 70864 17...... 71032 10 CFR 648...... 70904 1...... 70835 2...... 70835 7...... 70835 9...... 70835 19...... 70835 20...... 70835 26...... 70835 30...... 70835 31...... 70835 33...... 70835 39...... 70835 50...... 70835 51...... 70835 52...... 70835 54...... 70835 55...... 70835 71...... 70835 75...... 70835 100...... 70835 110...... 70835 14 CFR Proposed Rules: 39...... 70875 158...... 70878 16 CFR 303...... 70835 17 CFR Proposed Rules: 210...... 71018 18 CFR Proposed Rules: 35 (2 documents) ...... 70890 101...... 70890 154...... 70890 201...... 70890 346...... 70890 352...... 70890 22 CFR 42...... 70839 121...... 70839 26 CFR 1...... 70845 46...... 70845 Proposed Rules: 1 (3 documents) ...... 70891 28 CFR Proposed Rules: 79...... 70892 33 CFR 117...... 70846 Proposed Rules: 165...... 70892 334...... 71014 401...... 70897 36 CFR Proposed Rules: 52...... 70899 37 CFR 1...... 70847
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Rules and Regulations Federal Register Vol. 67, No. 229
Wednesday, November 27, 2002
This section of the FEDERAL REGISTER section’’ is revised to read ‘‘(1) of this Enforcement, Bureau of Consumer contains regulatory documents having general definition’’; in paragraph (3), last Protection, Federal Trade Commission, applicability and legal effect, most of which sentence, the phrase ‘‘(c)(1) of this Washington, D.C., 20580; (202) 326– are keyed to and codified in the Code of section:’’ is revised to read ‘‘(1) of this 3038. Federal Regulations, which is published under definition:’’. 50 titles pursuant to 44 U.S.C. 1510. SUPPLEMENTARY INFORMATION: b. The definition for NRC Public The Code of Federal Regulations is sold by Document Room is revised to read as I. Background follows: the Superintendent of Documents. Prices of A. Statutory and Regulatory Framework new books are listed in the first FEDERAL REGISTER issue of each week. § 110.2 [Corrected] Section 4(b)(1) of the Textile Fiber 3. On page 67101, right column, Products Identification Act (‘‘Act’’) second paragraph, fourth line, insert a declares that a textile product will be NUCLEAR REGULATORY comma between ‘‘Rockville’’ and misbranded unless it is labeled to show, COMMISSION ‘‘Maryland’’. among other elements, the percentages, 4. On page 67101, right column, by weight, of the constituent fibers in 10 CFR Parts 1, 2, 7, 9, 19, 20, 26, 30, second paragraph, 29th line, the the product, designated by their generic 31, 33, 39, 50, 51, 52, 54, 55, 71, 75, 100 telephone number ‘‘301–315–4737’’ is names and in order of predominance by and 110 corrected to read ‘‘301–415–4737’’. weight. 15 U.S.C. 70b(b)(1). Section 4(c) RIN 3150–AH01 Dated at Rockville, Maryland, this 19th day of the Act provides that the same of November, 2002. information required by section 4(b)(1) NRC Public Document Room Address For the Nuclear Regulatory Commission. (except the percentages) must appear in Change and Corrections to Information Alzonia W. Shepard, written advertisements if any disclosure Collection Provisions; Correction Acting Chief, Rules and Directives Branch, or implication of fiber content is made regarding a covered textile product. 15 AGENCY: Division of Administrative Services, Office Nuclear Regulatory U.S.C. 70b(c). Section 7(c) directs the Commission. of Administration. [FR Doc. 02–29874 Filed 11–26–02; 8:45 am] Commission to promulgate such rules, ACTION: Final rule; correction. BILLING CODE 7590–01–P including the establishment of generic names of manufactured fibers, as are SUMMARY: This document corrects a necessary to enforce the Act’s directives. document appearing in the Federal 15 U.S.C. 70e(c). Register on November 4, 2002 (67 FR FEDERAL TRADE COMMISSION Rule 6 of the Textile Rules (16 CFR 67096) (FR Doc. 02–27865). This action 303.6) requires manufacturers to use the is necessary to correct an erroneous 16 CFR Part 303 generic names of the fibers contained in amendatory instruction and their textile products in making typographical errors. Rules and Regulations Under the Textile Fiber Products Identification required fiber content disclosures on DATES: November 27, 2002. Act labels. Rule 7 of the Textile Rules (16 FOR FURTHER INFORMATION CONTACT: CFR 303.7) sets forth the generic names Michael T. Lesar, Office of AGENCY: Federal Trade Commission. and definitions that the Commission has Administration, Washington, DC 20555– ACTION: Final rule. established for synthetic fibers. Rule 8 0001, telephone 301–415–7163, e-mail (16 CFR 303.8) describes the procedures [email protected]. SUMMARY: The Federal Trade for establishing new generic names. Commission (‘‘Commission’’) SUPPLEMENTARY INFORMATION: announces amendments to Rule 7(c) of B. Procedural History § 1.5 [Corrected] the Rules and Regulations Under the DuPont applied to the Commission on Textile Fiber Products Identification Act 1. On page 67097, right column, February 5, 2001, for a new polyester (‘‘Textile Rules’’) to establish a new fiber subclass name and definition, and paragraph (3), second line, ‘‘Il.’’ is generic fiber subclass name and corrected to read ‘‘IL’’. supplemented its application with definition for a subclass of polyester additional information and test data on § 7.2 [Corrected] fibers manufactured by E. I. du Pont de March 18, 2001, and August 23, 2001.1 2. On page 67098, in the center Nemours and Company (‘‘DuPont’’), of column, amendatory instruction 11 is Wilmington, Delaware. The 1 DuPont’s petition and supplements thereto are amendments to Rule 7(c) establish the on the rulemaking record of this proceeding. This corrected to read as follows: material, as well as the comments that were filed ‘‘11. Section 7.2 is amended as subclass name ‘‘elasterell-p’’ as an alternative to the generic name in this proceeding, are available for public follows: inspection in accordance with the Freedom of a. In § 7.2, the paragraph designations ‘‘polyester’’ for a specific subclass of Information Act, 5 U.S.C. 552, and the inherently elastic, multicomponent Commission’s rules of practice, 16 CFR 4.11, at the are removed. Consumer Response Center, Public Reference In the definition of ‘‘Advisory textile fibers defined in the amendments, and previously referred to Section, Room 130, Federal Trade Commission, 600 committee’’, paragraph (1), last Pennsylvania Avenue, NW., Washington, DC. The sentence, the phrase ‘‘(c)(3) of this by DuPont as ‘‘T400.’’ comments that were filed are found under the Rules EFFECTIVE DATE: November 27, 2002. and Regulations Under the Textile Fiber Products section’’ is revised to read ‘‘(3) of this Identification Act, 16 CFR part 303, Matter No. definition.’’; in paragraph (2), first FOR FURTHER INFORMATION CONTACT: Neil P948404, ‘‘DuPont Generic Fiber Petition sentence, the phrase ‘‘(c)(1) of this Blickman, Attorney, Division of Continued
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stated that the T400 fiber is an allow use of the name ‘‘lyocell’’ as an three cases where such generic name inherently elastic, manufactured textile alternative generic description for a alternatives may be used: (1) Pursuant to fiber consisting of two substantially specifically defined subcategory of Rule 7(d), 16 CFR 303.7(d), within the different forms of polyester fibers. ‘‘rayon’’ fiber, pursuant to 16 CFR generic category ‘‘rayon,’’ the term DuPont maintained further that T400 is 303.7(d). There, the Commission noted ‘‘lyocell’’ may be used as an alternative distinguished from commercially that: generic description for a specifically available fibers by a significant and Where appropriate, in considering defined subcategory of rayon fiber; (2) long-lived stretch and recovery applications for new generic names for fibers pursuant to Rule 7(e), 16 CFR 303.7(e), characteristic fitting between that are of the same general chemical within the generic category ‘‘acetate,’’ conventional textured polyesters and composition as those for which a generic the term ‘‘triacetate’’ may be used as an spandex. name already has been established, rather alternative generic description for a Contending that the unique structure than of a chemical composition that is specifically defined subcategory of radically different, but that have distinctive and characteristics of fibers made from acetate fiber; and (3) pursuant to Rule T400 are inadequately described under properties of importance to the general public as a result of a new method of 7(j), 16 CFR 303.7(j), within the generic existing generic names listed in the manufacture or their substantially category ‘‘rubber,’’ the term ‘‘lastrile’’ Textile Rules, DuPont petitioned the differentiated physical characteristics, such may be used as an alternative generic Commission to establish a new generic as their fiber structure, the Commission may description for a specifically defined subclass name and definition. After an allow such fiber to be designated in required subcategory of rubber fiber. initial analysis with the assistance of a information disclosures by either its generic Although the Commission’s NPR textile expert, the Commission name or, alternatively, by its ‘‘subclass’’ announced that DuPont’s fiber determined that DuPont’s proposed new name. The Commission will consider this disposition when the distinctive feature or technically falls within Rule 7(c)’s fiber technically falls within Rule 7(c)’s definition of polyester, it noted that 2 features of the subclass fiber make it suitable definition of ‘‘polyester.’’ The for uses for which other fibers under the DuPont’s application may meet the Commission further determined, established generic name would not be Commission’s standard for a subclass however, that DuPont’s application for a suited, or would be significantly less well name. Alternatively, the Commission new subclass name and definition suited.3 stated that T400 may fit within the merited further consideration. Thus, a new generic fiber subclass current definition of polyester in Rule Accordingly, on May 21, 2001, the may be appropriate in cases where the 7(c), with or without need for Commission announced that it had proposed subclass fiber: (1) Has the clarification. Therefore, the Commission issued DuPont the designation ‘‘DP same general chemical composition as requested public comment on whether 0002’’ for temporary use in identifying an established generic fiber category; (2) to: (1) Broaden Rule 7(c)’s definition of T400 fiber pending a final has distinctive properties of importance polyester to better describe the allegedly determination on the merits of the to the general public as a result of a new unique molecular structure and physical application for a new generic fiber method of manufacture or substantially characteristics of T400 and any similar subclass name and definition. The differentiated physical characteristics, fibers (without creating a new subclass Commission staff further analyzed the such as fiber structure; and (3) the for T400); (2) amend Rule 7(c)’s application, and on February 15, 2002 distinctive feature(s) make the fiber definition of polyester by creating a (67 FR 7104), the Commission suitable for uses for which other fibers separate subclass name and definition published a Notice of Proposed under the established generic name for T400 and other similar qualifying Rulemaking (‘‘NPR’’) detailing the would not be suited, or would be fibers within the polyester category; or technical aspects of DuPont’s fiber, and significantly less well suited.4 (3) deny DuPont’s application because requesting public comment on DuPont’s Within the established 24 generic T400 fiber fits within Rule 7(c)’s application. On April 19, 2002, the names for manufactured fibers, there are definition of polyester without need for comment period closed. any change. II. Description of the Fiber and 3 60 FR 62352, 62353 (Dec. 6, 1995). 4 B. The NPR Solicitation of Comments in the NPR The criteria for establishing a new generic subcategory are different from the criteria to 1. Fiber Description and Proposed A. The Commission’s Criteria for establish a new generic category. The Commission’s criteria for granting applications for new generic Subclass Name and Definition Granting a New Generic Fiber Subclass names are as follows: (1) The fiber for which a The NPR provided a detailed Name and Definition, and Related generic name is requested must have a chemical description, taken from DuPont’s Issues composition radically different from other fibers, and that distinctive chemical composition must application, of T400’s chemical In the NPR, the Commission solicited result in distinctive physical properties of composition and physical and chemical comment on whether DuPont’s significance to the general public; (2) the fiber must properties.5 As a result of T400’s fiber application meets the Commission’s be in active commercial use or such use must be immediately foreseen; and (3) the granting of the structure, DuPont maintained that T400 criteria for granting applications for new generic name must be of importance to the has the following distinctive properties generic fiber subclass names. consuming public at large, rather than to a small that would be significant to consumers: The Commission articulated group of knowledgeable professionals such as (1) Stretch and recovery power that is standards for establishing a new generic purchasing officers for large Government agencies. far superior to that of any textured fiber, fiber ‘‘subclass’’ in the proceeding to The Commission believes it is in the public interest to prevent the proliferation of generic names, and including textured polyesters; (2) the will adhere to a stringent application of these superior stretch and recovery property Rulemaking.’’ The comments also may be viewed criteria in consideration of any future applications does not degrade or ‘‘sag’’ over time on the Commission’s Web site at http://www.ftc.gov. for generic names, and in a systematic review of any 2 Rule 7(c) defines ‘‘polyester’’ as ‘‘[a] generic names previously granted that no longer with normal use and washings, manufactured fiber in which the fiber-forming meet these criteria. The Commission announced substance is any long chain synthetic polymer these criteria on Dec. 11, 1973, at 38 FR 34112, and 5 67 FR 7104, at 7105–7109 (Feb. 15, 2002). For composed of at least 85% by weight of an ester of later clarified and reaffirmed them on Dec. 6, 1995, brevity’s sake, the Commission is providing a a substituted aromatic carboxylic acid, including 60 FR 62353, on May 23, 1997, 62 FR 28343, on simplified description of the fiber in this notice, but not restricted to substituted terephthalate units, Jan. 6, 1998, 63 FR 447 and 63 FR 449, and on Nov. and refers those who wish to see detailed technical [formula omitted] and para substituted hydroxy- 17, 2000, 65 FR 69486, on Feb. 15, 2002, 67 FR information about the fiber to the earlier description benzoate units, [formula omitted].’’ 16 CFR 303.7(c). 7104, and on May 24, 2002, 67 FR 36551. in the NPR.
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compared to textured fibers, including and rapidly reverts substantially to its generic subclass. Nan Ya stated that polyesters; and (3) a softer ‘‘silkier’’ feel unstretched length when the tension is bicomponent yarns in which both or ‘‘hand’’ than textured polyester removed. components are polyester currently are fibers. DuPont asserted that T400 will In accordance with BISFA’s policies manufactured by several companies. fill a growing and unmet consumer and procedures, the BISFA-approved Nan Ya commented further that demand for stretch garments with fibers name, ‘‘multelastester,’’ and its creating a subclass for T400 could result that can yield quality stretch and definition have been communicated to in giving DuPont an unfair competitive recovery without degrading over time the International Organization for like textured polyester fibers. DuPont Standardization (‘‘ISO’’) for advantage in the marketplace. For further contended that it would be introduction into ISO Standard 2076, example, Nan Ya suggested that confusing to consumers if T400 is called which includes man-made textile fiber DuPont’s patent protection for its T400 simply ‘‘polyester.’’ generic names and definitions. BISFA fiber and manufacturing process could DuPont, therefore, petitioned the representatives expect the ISO prevent other manufacturers from Commission to establish the generic proceeding to conclude in 2003. making or selling any fiber falling name ‘‘elasterell-p’’ as an alternative to, The Commission has taken notice of within the new subclass. Further, Nan and a subclass of, ‘‘polyester.’’ In this proceeding because the Textile Ya stated that creating a new subclass addition, DuPont proposed that the Rules incorporated by reference the would cause consumer confusion Commission add the following sentence generic fiber names and definitions for because manufacturers producing to the current definition of polyester in manufactured fibers that existed in ISO polyester bicomponent fibers with Rule 7(c) to define T400 and similar Standard 2076 in 1989. The characteristics only slightly outside the fibers as a subclass of polyester: Commission also amended the Rules parameters proposed by DuPont, Where the fiber is a multicomponent and once to incorporate a revised version of whether to achieve other desired exhibits inherent (not mechanically induced) that Standard.7 properties or to avoid patent recoverable stretch of at least 35% upon 3. Discussion of the Public Comments infringement, would be required to call loading with 185 mg/dtex and unloading to their product polyester, and would not The Commission received comments 5.4 mg/dtex when tested in accordance with be permitted to use the new subclass ASTM test D6720, the term ‘‘elasterell-p’’ from the American Fiber Manufacturers may be used as a generic description of the Association, Inc. (‘‘AFMA’’), and Nan name. The result would be that fiber. Ya Plastics Corporation, America (‘‘Nan polyester bicomponent fibers with similar characteristics, but different The effect of DuPont’s proposed Ya’’), a U.S. manufacturer of polyester amendment would be to allow use of for the packaging and textile industries. generic names, would be sold to 8 the name ‘‘elasterell-p’’ as an alternative AFMA does not object to amending Rule consumers. to the generic name ‘‘polyester’’ for the 7(c) of the Textile Rules by creating a 4. Discussion of the Three Criteria for subcategory of polyester fibers meeting separate subclass name and definition Granting New Generic Subclass Names the further criteria contained in the for T400 and other similar qualifying sentence added by the proposed fibers within the polyester category. a. T400 Fiber’s Chemical Composition amendment. AFMA, however, recommended that the Commission take account of the parallel The materials DuPont submitted show 2. The Parallel European Proceeding European proceeding, and suggested that while T400 has the same general During this proceeding, but after the that the Commission use compatible chemical composition as other polyester comment period closed, the nomenclature in establishing the new fibers, it also has a molecular and fiber Commission staff was informed that in generic subclass to avoid confusion in structure that differs from chemically May 2002, the International Bureau for the marketplace. homogeneous polyesters. Although each the Standardization of Man-Made Fibres Nan Ya, although a member of AFMA, of the two components of T400 is from (‘‘BISFA’’)6 determined that as a result opposed creating a separate subclass the same polymer class, DuPont has of T400’s distinguishing attributes, and name and definition for T400. combined the two chemically different the technology utilized to manufacture Specifically, Nan Ya commented that polyesters in a side-by-side it, DuPont’s fiber merited a new generic DuPont’s fiber is not sufficiently unique arrangement. A helical crimp resulting name and definition. Accordingly, to merit a separate generic subclass. Nan from the differential shrinkage of the BISFA has established the following Ya stated that what may be unique two different polyesters in T400 results generic name and definition for about DuPont’s fiber is the composition in a level of increased inherent stretch DuPont’s T400 fiber: of the particular polyester polymers and recovery uncharacteristic of ‘‘multelastester:’’ fibre formed by interaction selected for the components, perhaps chemically homogeneous polyesters. of 2 or more chemically distinct coupled with specific spinning and heat The stretch and recovery is not macromolecules (of which none exceeds 85% treatment conditions, to produce a physically induced like texturizing, but by mass) which contains ester groups as polyester bicomponent fiber that is inherent in the helical fiber structure, dominant functional unit (at least 66%) and exhibits properties especially suitable and the stretch recovery power is which, if stretched at least 100%, durably for use in stretch garments. Nan Ya sustained and superior over time. Thus, stated, however, that these conditions, 6 BISFA, founded in 1928, and located in which may be patentable, result in a DuPont’s application meets the first Brussels, Belgium is the international association of polyester bicomponent fiber with some criterion for granting a new generic fiber man-made fiber producers. BISFA establishes subclass name. generic names and definitions for man-made fibers properties that differ only in degree and procedures and test methods for different from the properties of other polyester categories of man-made fibers. It also sets general bicomponent fibers, and not in a fiber 8 Nan Ya also proposed expansion of 16 CFR rules for the settling of disputes between sellers and 303.10(c) to include bicomponent fibers in which buyers of man-made fibers. BISFA provides an worthy of being designated by a new the two components are of the same fiber. Such a international voice for the man-made fiber industry proposal, however, does not adequately address in these matters and promotes the adoption of its 7 See 65 FR 75154 (Dec. 1, 2000), as well as the DuPont’s petition, would require an additional methods and terminology by other standard-setting first paragraph of 16 CFR 303.7, incorporating by public comment period and, therefore, is beyond organizations. reference ISO generic names and definitions. the scope of this proceeding.
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b. T400’s Distinctive Properties as a Commission has concluded that T400: To minimize conflict with BISFA’s Result of a New Method of Manufacture (1) Has the same general chemical proposal, however, the Commission is or Substantially Differentiated Physical composition as an established generic revising the definition proposed in the Characteristics, Such as Fiber Structure fiber category (polyester); (2) has NPR. The new definition of elasterell-p The materials submitted by DuPont distinctive properties of importance to defines it generically in terms of its the general public as a result of a new also show that the most notable chemical composition and focuses less method of manufacture or substantially characteristic (and of greatest on its physical recoverable stretch differentiated physical characteristics, 11 importance to consumers) of T400 is its characteristic. This definition is such as fiber structure (e.g., inherent stretch and recovery power, which is consistent with the definition of elasticity); and (3) that its distinctive superior to that of chemically ‘‘polyester’’ in Rule 7(c) and it is feature(s) make the fiber suitable for homogeneous polyesters. This property consistent with, but a bit narrower than, uses for which other fibers under the is a direct result of the fiber structure of the definition of multelastester adopted established polyester generic name 12 T400. DuPont compared the stretch and by BISFA. Further, because it is would not be suited, or would be recovery of several false twist textured written in terms of the chemical significantly less well suited. structure of the fiber, it is consistent fibers to T400. The range of recoverable Specifically, the side-by-side molecular stretch values for T400, which is well with the other generic fiber definitions structure of the multicomponent in Rule 7. It also does not unnecessarily above 35%, reflects the fact that DuPont polyester fiber, T400, differs distinctly can vary the stretch and recovery of the exclude any multicomponent polyester from chemically homogenous polyester fiber from the subclass, which should fiber by adjusting the spinner fibers by possessing intrinsic elastic conditions. The recoverable stretch address Nan Ya’s primary concern. properties. The dissimilarities are due to Accordingly, for the reasons values for the polyester fibers DuPont the physical interaction of the two discussed above, the Commission described as 2GT, 3GT, and 4GT are chemically distinct polyesters present, amends Rule 7(c) of the Textile Rules by below 35%. An additional distinctive which result not only in inherent adding the following sentence at the property of T400 is that its superior elasticity/recovery properties, but also end: stretch and recovery does not degrade in a changed structure. As a over time as compared to some textured Where the fiber is formed by the multicomponent polyester fiber, T400 interaction of two or more chemically fibers, including polyesters. The has a uniform helical crimp that is not uniqueness of T400 is derived from the distinct polymers (of which none exceeds present in a chemically homogeneous 85% by weight), and contains ester groups as natural helical coil imparted by the polyester, even after texturing. the dominant functional unit (at least 85% by differential shrinkage of the two Accordingly, although T400 arguably weight of the total polymer content of the polymer components. T400’s is comparable to other multicomponent fiber), and which, if stretched at least 100%, differentiated physical characteristics, polyester fibers (as Nan Ya pointed out) durably and rapidly reverts substantially to therefore, satisfy this second criterion. there are sufficient differences to merit its unstretched length when the tension is a new subclass designation. Therefore, removed, the term elasterell-p may be used c. T400’s Distinctive Features Make the as a generic description of the fiber. Fiber Suitable for Uses for Which Other the Commission is amending Rule 7(c) Polyester Fibers Would Not Be Suited, or to adopt and define the generic subclass III. Effective Date Would Be Significantly Less Well Suited name ‘‘elasterell-p,’’ and to allow use of the name ‘‘elasterell-p’’ as an alternative The Commission is making the The evidence submitted by DuPont to the generic name ‘‘polyester’’ for that amendments effective today, November supports the Commission’s conclusion subclass of fiber. However, because 27, 2002, as permitted by 5 U.S.C. that textured polyesters are not suitable, T400 also is arguably comparable to 553(d), because the amendments do not or not as suitable, for imparting the other multicomponent polyester fibers, create new obligations under the Rule; significant stretch to certain garments, other companies that manufacture fibers rather, they merely create a fiber name such as sports apparel, that consumers satisfying the definition may use the and definition that the public may use may expect or desire, and that T400 is subclass name in making required fiber to comply with the Rule. a suitable stretch component. Thus, content disclosures on labels. IV. Regulatory Flexibility Act DuPont’s application has satisfied the Although BISFA has adopted and Commission that T400 is suitable for reported a different name to ISO for In the NPR, the Commission uses for which other polyester fibers are inclusion in ISO Standard 2076 to tentatively concluded that the not suited, or not as well suited. define T400 and a broad class of Accordingly, the Commission agrees multicomponent fibers, BISFA’s by amending Rule 7 to incorporate a newly with DuPont that the granting of a recognized ISO name, as we have done previously. definition does not work under the That process does not create the problems that are generic subclass name to describe T400 Commission’s regulatory scheme. inherent in amending the Commission’s Rules to is of importance to the general public, BISFA’s definition includes fibers that use the BISFA definition, which conflicts with the and not just a few knowledgeable FTC’s long-established definition of polyester. may not in all cases satisfy the 11 professionals. A new generic subclass 9 Accordingly, the revised definition no longer definition of ‘‘polyester’’ in Rule 7(c). includes an American Society for Testing and name will enable consumers to identify Thus, BISFA’s precise definition is Materials (‘‘ASTM’’) test procedure, as proposed in textile fiber products, such as sports somewhat too broad to be permissible as the NPR. This test procedure related to the fiber’s apparel, containing T400 (and other a ‘‘polyester’’ generic fiber subclass physical characteristics and is not needed under the revised, chemical-based definition. inherently elastic multicomponent definition within Rule 7(c).10 polyester fibers) that exhibit significant 12 The proposed definition varies from the BISFA definition slightly so that a fiber satisfying the inherent stretch and recovery power 9 The BISFA definition requires that the fiber- elasterell-p subclass definition can be designated in that does not degrade over time. forming polymer be composed of at least 66% by required information disclosures by either its weight of an ester, while Rule 7(c)’s definition of generic name, ‘‘polyester,’’ or, alternatively, by its 5. Conclusion polyester requires at least 85% by weight of an subclass name. In addition, the Commission uses ester. the terms ‘‘polymers’’ and ‘‘weight’’ in Rule 7’s Based on its review of the comments 10 At the same time, when approved by ISO, the generic fiber name definitions, rather than the and the BISFA proceeding, and in term ‘‘multelastester,’’ and its somewhat broader synonymous ISO terms ‘‘macromolecules’’ and consultation with its expert, the definition, could be recognized by the Commission ‘‘mass.’’
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provisions of the Regulatory Flexibility § 303.7 Generic names and definitions for b. In the entry for AM1, remove Act relating to an initial regulatory manufactured fibers. ‘‘584(b)(2)(C)’’ and add ‘‘584(b)(1)(C)’’ in analysis, 5 U.S.C. 603–604, did not * * * * * its place. apply to the proposal because the (c) * * * Dated: November 19, 2002. Where the fiber is formed by the amendments, if promulgated, would not Timothy Egert, have a significant economic impact on interaction of two or more chemically Federal Register Liaison, Department of State. a substantial number of small entities. distinct polymers (of which none The Commission believed that the exceeds 85% by weight), and contains [FR Doc. 02–29763 Filed 11–26–02; 8:45 am] proposed amendments would impose ester groups as the dominant functional BILLING CODE 4710–06–P no additional obligations, penalties, or unit (at least 85% by weight of the total costs. The amendments simply would polymer content of the fiber), and DEPARTMENT OF STATE allow covered companies to use a new which, if stretched at least 100%, generic name as an alternative to an durably and rapidly reverts 22 CFR Part 121 existing generic name for that defined substantially to its unstretched length when the tension is removed, the term subclass of fiber, and would impose no [Public Notice 4209] additional labeling requirements. To elasterell-p may be used as a generic ensure, however, that no substantial description of the fiber. RIN AB–60 economic impact was overlooked, the * * * * * Commission solicited public comment By direction of the Commission. Amendment to the International Traffic in the NPR on the effects of the Donald S. Clark, in Arms Regulations, United States proposed amendments on costs, profits, Munitions List competitiveness of, and employment in Secretary. small entities. 67 FR 7104, at 7109 (Feb. [FR Doc. 02–30085 Filed 11–26–02; 8:45 am] AGENCY: Department of State. 15, 2002). BILLING CODE 6750–01–P ACTION: Final rule. No comments were received on this SUMMARY: The Department of State is issue. Accordingly, the Commission DEPARTMENT OF STATE revising Category V—Explosives, hereby certifies, pursuant to the Propellants, Incendiary Agents, and Regulatory Flexibility Act, 5 U.S.C. 22 CFR Part 42 Their Constituents and Category XIV— 605(b), that the amendments Toxicological Agents and Equipment promulgated today will not have a [Public Notice 4185] and Radiological Equipment, of the U.S. significant economic impact on a Munitions List (USML). Amendments substantial number of small entities. Documentation of Immigrants—Visa Classification Symbols; Correction are made to the titles of both categories V. Paperwork Reduction Act to better reflect the items included in AGENCY: Department of State. the category and to move the texts of the These amendments do not constitute ACTION: Correction of final rule. definitional and interpretive provisions ‘‘collection[s] of information’’ under the to the appropriate category. Also, to SUMMARY: This document makes Paperwork Reduction Act of 1995, Pub. assist exporters, Category V and XIV are corrections to the final rule published L. 104–13, 109 Stat. 163, 44 U.S.C. reformatted to identify the items by on August 29, 2002 (67 FR 55319). The chapter 35 (as amended), and its their predominant use. Exporters are regulation made changes to the implementing regulations, 5 CFR 1320 also being provided Chemical Abstract Department’s table of immigrant visa et seq. Those procedures for establishing Service (CAS) numbers and Chemical classification symbols. generic names that do constitute Weapons Convention (CWC) references. collections of information, 16 CFR EFFECTIVE DATE: This rule is effective In addition to reformatting and changes 303.8, have been submitted to OMB, November 27, 2002. in the language for clarification, which has approved them and assigned FOR FURTHER INFORMATION CONTACT: Pam Category XIV and Category V are revised them control number 3084–0101. Chavez, Legislation and Regulations to move from the USML to the Division, 202–663–1206. List of Subjects in 16 CFR Part 303 jurisdiction of the Department of SUPPLEMENTARY INFORMATION: The Commerce several items that have been Labeling, Textile, Trade Practices. Department of State published a final identified as having predominantly rule (Public Notice 4092) in the Federal commercial application and no VI. Text of Amendments Register of August 9, 2002, (67 FR significant military applicability. The 55319) amending § 42.11 by items so transferred in Category XIV are For reasons set forth in the preamble, inadvertently substituting the word fluorine, liquid pepper and 16 CFR part 303 is amended as follows: ‘‘child’’ for ‘‘orphan.’’ in the definition chloropicrin. The items so transferred in PART 303—RULES AND of the IR4 category on the visa Category V are nitroguanidine (NG), REGULATIONS UNDER THE TEXTILE classification table. This correction guanidine nitrate, compounds FIBER PRODUCTS IDENTIFICATION removes that amendment published on composed of fluorine and one or more ACT August 9, 2002, and revises the AM1 of the following: Other halogens, category under the heading ‘‘Section of oxygen, nitrogen, and propyleneimide 1. The authority citation for part 303 law’’ to read ‘‘584(b)(1)(C),’’ not 2-methylaziridine, unless the articles continues to read as follows: ‘‘584(b)(2)(C).’’ are compounded or mixed with any item controlled by the USML. Authority: Sec. 7(c) of the Textile Fiber In rule FR Doc. 02–20090 published Products Identification Act (15 U.S.C. 70e(c)). on August 29, 2002 (67 FR 55319), make EFFECTIVE DATE: November 27, 2002. the following correction. On page FOR FURTHER INFORMATION CONTACT: Mr. 2. In § 303.7, paragraph (c) is 55320, in the table to § 42.11: Stephen J. Tomchik, Office of Defense amended by adding a sentence at the a. In the entry for IR4, remove ‘‘Child’’ Trade Controls, Department of State, end, to read as follows: and add ‘‘Orphan’’ in its place; and Telephone (202) 663–2799 or FAX (202)
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261–8199. ATTN: Regulatory Change, for the dissemination, detection, pepper (e.g., derived from cayenne USML Part 121, Category V and XIV. identification and defense of the articles pepper and used by both for law SUPPLEMENTARY INFORMATION: This in this category is moved to paragraph enforcement and in commercially notice of rulemaking provides the (f) and paragraph (k). Paragraph (c) now available sprays for personal results of a review, by the Department covers chemical agent binary precursors protection), and chloropicrin (e.g., used of State in consultation with the and key precursors. Paragraph (f), in commercial fumigants and soil Departments of Defense and Commerce, currently covering technical data, is insecticides, and as a disinfectant for of Category V and XIV of the U.S. revised re-designate paragraph (f) as cereals and grains). In accordance with Munitions List. To better reflect the Significant Military Equipment (SME) the requirements of Section 38(f) of the items included in each category, the and to cover items currently in Category Arms Export Control Act (AECA), this titles are amended. To assist the X(c) of the USML. Category XIV, removal has been notified to the exporter, the definitional and paragraph (f) now includes equipment Congress, and the Commerce Control interpretive provisions from § 121.12 and its components, parts, accessories, List (CCL) controls identified are: (1) For and § 121.13 are moved to Category V, and attachments specifically designed propyleneimide 2-methulaziridine and those from § 121.7 to Category XIV, and or modified for military operations and compounds composed of fluorine and the numbered sections are captioned compatibility with military equipment one or more of the following: Other ‘‘Reserved’’. Also to assist the exporter, (e.g., the dissemination, dispersion, halogens, oxygen, and nitrogen—ECCN Chemical Abstract Service (CAS) testing, detection, identification, 1C018; (2) nitroguanidine (NG) and numbers and Chemical Weapons warning, monitoring, sample collection guanidine nitrate—ECCN 1C011, (3) for Convention (CWC) references are being and processing; and individual chloropicrin—ECCN 1C355, (4) for provided. Exporters are advised that the protection of the chemical and liquid pepper—ECCN 1A984, and for CAS numbers do not cover all the biological agents listed in paragraphs (a) fluorine—ECCN EAR99. substances and mixtures controlled by and (b) of the category). This includes military protective clothing and masks, Finally, Category X, Protective the categories and CWC numbers are Personnel Equipment, is amended to provided only when deemed but not those items designed for domestic preparedness (e.g., civil delete the current paragraph (c) and appropriate. defense), collective protection, and renumber the paragraphs since In addition to amending the title and decontamination or remediation. These protective apparel and equipment adding CAS numbers, the coverage of movements resulted in the technical specifically designed or modified for Category V, paragraph (c) is amended to data currently in paragraph (f) being use with toxicological agents and add (c)(4) to cover, in addition to fuels moved to a new paragraph (l). The equipment is now covered by paragraph for category VIII, fuels for the items in components, parts, accessories, (f) of Category XIV. Category IV and VI. The fuels for attachments and associated equipment category IV and VI articles are currently This amendment involves a foreign for the items in category XIV, currently controlled by the components, parts and affairs function of the United States and, in paragraph (e), are moved to a new accessories paragraph in each of the therefore, is not subject to the paragraph (k), and paragraph (e) now procedures required by 5 U.S.C. 553 and categories. A new paragraph (c)(7) has covers defoliants. The coverage of been added to category V to clarify 554. It is exempt from review under defoliants is expanded to include Agent Executive Order 12866, but has been control of pyrotechnics that currently Orange. are covered by Category (V), paragraph reviewed internally by the Department The remaining new paragraphs (e.g. of State to ensure consistency with the (d). The language in section 121.13 is (d), (g), (h), (i), (j), (k), and (m)) added removed and the section ‘‘reserved’’, purposes thereof. This rule does not to Category XIV are for clarification, require analysis under the Regulatory and the language in section 121.13 is specific identification and movement of now in Category V, paragraphs (c)(4) Flexibility Act or the Unfunded the articles currently covered in the Mandates Reform Act. It has been found and (c)(9). The fuel thickeners currently category, and for transfer of the language in Category V, paragraph (b) are moved not to be a major rule within the in section 121.7. meaning of the Small Business to paragraph (c) resulting in propellants In addition to the above amendments, Regulatory Enforcement Act of 1966. It in paragraph (c) being moved to four explosives and three chemicals will not have substantial direct effects paragraph (b). The compounds currently were identified as having predominant on the States, the relationship between in Category V, paragraph (e) are moved civil use warranting their removal from the National Government and the States, to the relevant paragraph in the category the USML and transfer to the Commerce or on the distribution of power and in which the article is covered (e.g., Control List. In Category V, the items binders, additives, etc.) and the and examples of their commercial use responsibilities among the various technical data and services currently in are: Nitroguanidine (NG) (e.g., used in levels of government. Therefore, in paragraph (f) are moved to a new pet insecticides), guanidine nitrate (e.g., accordance with section 6 of Executive paragraph (h). used in disinfectants and photographic Order 13132, it is determined that this The amendments in Category XIV, in chemicals), propyleneimide 2- rule does not have sufficient federalism addition to changing the title and methulaziridine (e.g., used by paint and implications to warrant application of adding CAS numbers and CWC pharmaceutical manufacturers), and Executive Orders Nos. 12372 and 13123. references, include the transfer to compounds composed of fluorine and However, affected U.S. persons are Category XVI of nuclear radiation one or more of the following: Other invited to submit written comments to detection and measuring devices halogens, oxygen, nitrogen (e.g., used in the Department of State, Office of currently in paragraph (d) of Category freon). In Category XIV, the items and Defense Trade Controls, ATTN: Stephen XIV. The inclusion of this coverage in examples of their commercial use are: Tomchik, Regulatory Change, USML Category XVI will be published in the Fluorine (e.g., used in production of Categories V and XIV, 12th Floor, SA– results of the review of the entire metallic and other fluoride and 1, Washington, DC 20522–0112. category XVI. Paragraph (d) now fluorocarbons, and as an active List of Subjects in 22 CFR Part 121 controls tear gases and riot control constituent of fluoridating compounds agents. The equipment in paragraph (c) used in water and toothpaste), liquid Arms and munitions, Exports.
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Accordingly, for the reasons set forth tetrazine; 1,3,5,7-tetranitro-1,3,5,7- (i) DNAM (2-oxy-4,6-dinitroamino-s- above, Title 22, Chapter I, Subchapter tetraza-cyclooctane; octogen, octogene) triazine) (CAS 19899–80–0); M, Part 121 is amended as follows: (CAS 2691–41–0); (ii) NNHT (2-nitroimino-5-nitro- (ii) Diflouroaminated analogs of HMX; hexahydro-1,3,5 triazine) (CAS 130400– PART 121—THE UNITED STATES (iii) K–55 (2,4,6,8-tetranitro-2,4,6,8- 13–4); MUNITIONS LIST tetraazabicyclo [3,3,0]-octanone-3, (31) Triazoles, as follows: (i) 5-azido-2-nitratriazole; 1. The authority citation for Part 121 tetranitrosemiglycouril, or keto-bicyclic (ii) ADHTDN (4-amino-3,5- continues to read as follows: HMX) (CAS 130256-72–3); (13) HNAD (hexanitroadamantane) hihydrazino-1,2,4-triazole dinitramide) Authority: Sec. 2, 38, and 71, Pub. L. 90– (CAS 143850–71–9); (CAS 1614–08–0); 629, 90 Stat. 744 (22 U.S.C. 2752, 2278, (14) HNS (hexanitrostilbene) (CAS (iii) ADNT (1-amino-3,5-dinitro-1,2,4- 2797); E.O. 11958, 42 FR 4311; 3 CFR 1977 20062–22–0); triazole); Comp. p. 79; 22 U.S.C. 2658; Pub. L. 105– (15) Imidazoles, as follows: (iv) BDTNTA ([Bis- 261, 112 Stat. 1920. (i) BNNI (Octohydro-2,5- dinitrotriazole]amine); 2. In § 121.1, Category V—Explosives, bis(nitroimino) imidazo [4,5- (v) DBT (3,3’-dinitro-5,5-bi-1,2,4- Propellants, Incendiary Agents, and d]Imidazole); triazole) (CAS 30003–46–4); Their Constituents, paragraphs (c) and (ii) DNI (2,4-dinitroimidazole) (CAS (vi) DNBT (dinitrobistriazole) (CAS (d) of Category X—Protective Personnel 5213–49–0); 70890–46–9); Equipment, and Category XIV— (iii) FDIA (1-fluoro-2,4- (vii) NTDNA (2-nitrotriazole 5- Toxicological Agents and Equipment dinitroimidazole); dinitramide); and Radiological Equipment are revised (iv) NTDNIA (N-(2-nitrotriazolo)-2,4- (viii) NTDNT (1-N-(2-nitrotriazolo) to read as follows: dinitro-imidazole); 3,5-dinitro-triazole); (v) PTIA (1-picryl-2,4,5- (ix) PDNT (1-picryl-3,5- § 121.1 General. The United States trinitroimidazole); dinitrotriazole); Munitions List. (16) NTNMH (1-(2-nitrotriazolo)-2- (x) TACOT * * * * * dinitromethylene hydrazine); (tetranitrobenzotriazolobenzotriazole) (17) NTO (ONTA or 3-nitro-1,2,4- (CAS 25243–36–1); Category V—Explosives and Energetic (32) Any explosive not listed Materials, Propellants, Incendiary triazol-5-one) (CAS 932–64–9); (18) Polynitrocubanes with more than elsewhere in paragraph (a) of this Agents and Their Constituents four nitro groups; category with a detonation velocity *(a) Explosives, and mixtures thereof: (19) PYX (2,6-Bis(picrylamino)-3,5- exceeding 8,700m/s at maximum (1) ADNBF (aminodinitrobenzofuroxan dinitropyridine) (CAS 38082–89–2); density or a detonation pressure or 7-Amino 4,6-dinitrobenzofurazanr-1- (20) RDX and derivatives: exceeding 34 Gpa (340 kbar). oxide) (CAS 97096–78–1); (i) RDX (33) Other organic explosives not (2) BNCP (cis-bis (5-nitrotetrazolato) (cyclotrimethylentrinitramine), listed elsewhere in paragraph (a) of this tetra amine-cobalt (III) perchlorate); cyclonite, T4, hexahydro-1,3,5-trinitro- category yielding detonation pressures (3) CL–14 (diamino 1,3,5-triazine, 1,3,5-trinitro-1,3,5-triaza- of 25 Gpa (250 kbar) or more that will dinitrobenzofuroxan or 5,7-diamino-4,6- cyclohexane, hexogen, or hexogene) remain stable at temperatures of 523K dinitrobenzofurazane-1-oxide) (CAS (CAS 121–84–4); (250oC) or higher for periods of 5 117907–74–1); (ii) Keto-RDX (K–6 or 2,4,6-trinitro- minutes or longer; (4) CL–20 (HNIW or 2,4,6-triazacyclohexanone (CAS (34) Diaminotrinitrobenzene (DATB); Hexanitrohexaazaisowurtzitane); (CAS 115029–35–1); (35) Any other explosive not 135285–90-4); chlathrates of CL–20 (see (21) TAGN elsewhere identified in this category paragraphs (g)(3) and (4) of this (Triaminoguanidinenitrate) (CAS 4000– specifically designed, modified, category); 16–2); adapted, or configured (e.g. formulated) (5) CP (2-(5-cyanotetrozolato) penta (22) TATB (Triaminotrinitrobenzene) for military application. aminecobalt (III) perchlorate); (CAS (CAS 3058–38–6) (see paragraph (g)(7) * (b) Propellants: 70247–32–4); of this category); (1) Any United Nations (UN) Class 1.1 (6) DADE (1,1-diamino-2,2- (23) TEDDZ (3,3,7,7- solid propellant with a theoretical dinitroethylene, FOX7); tetrabis(difluoroamine) octahydro-1,5- specific impulse (under standard (7) DDFP (1,4- dinitro-1,5-diazocine; conditions) of more than 250 seconds dinitrodifurazanopiperazine); (24) Tetrazoles, as follows: for non-metallized, or 270 seconds for (8) DDPO (2,6-diamino-3,5- (i) NTAT (nitrotriazol aminotetrazole); metallized compositions; dinitropyrazine-1-oxide, PZO); (CAS (ii) NTNT (1-N-(2-nitrotriazolo)-4- (2) Any UN Class 1.3 solid propellant 194486–77–6); nitrotrazole); with a theoretical specific impulse (9) DIPAM (3,3′-Diamino-2,2′,4,4′,6,6′- (25) Tetryl (under standard conditions) of more hexanitrobiphenyl or dipicrimide) (CAS (trinitrophenylmethylnitramine) (CAS than 230 seconds for non-halogenized, 17215–44–0); 479–45–8); or 250 seconds for non-metallized (10) DNGU (DINGU or (26) TNAD (1,4,5,8-tetranitro-1,4,5,8- compositions; dinitroglycoluril) (CAS 55510–04–8); tetraazadecalin) (CAS 135877-16–6)(see (3) Propellants having a force constant (11) Furazans, as follows: paragraph (g)(6) of this category); of more than 1,200 kJ/Kg; (i) DAAOF (diaminoazoxyfurazan); (27) TNAZ (1,1,3-trinitroazetidine) (4) Propellants that can sustain a (ii) DAAzF (diaminoazofurazan) (CAS (CAS 97645–24–4) (see paragraph (g)(2) steady-state burning rate more than 78644–90–3); of this category); 38mm/s under standard conditions (as (12) HMX and derivatives (see (28) TNGU (SORGUYL or measured in the form of an inhibited paragraph (g)(5) of this category): tetranitroglycoluril) (CAS 55510–03–7); single strand) of 6.89 Mpa (68.9 bar) (i) HMX (29) TNP (1,4,5,8-tetranitropyridazine pressure and 294K (210 C); (Cyclotetramethylenetetranitramine; (CAS 229176–04–9); (5) Elastomer modified cast double octahydro-1,3,5,7-tetranitro-1,3,5,7- (30) Triazines, as follows: based propellants with extensibility at
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maximum stress greater than 5% at 233 (8) Titanium subhydride (TiHn) of value of less than 0.77 meq/g, and a K (¥40C); stoichiometry equivalent to n = 0.65– viscosity at 30° C of less than 47 poise (6) Any propellant containing 1.68; (CAS 69102–90–5); substances listed in Category V; (9) Military materials containing (8) NENAS (nitratoethylnitramine (7) Any other propellant not thickeners for hydrocarbon fuels compounds) (CAS 17096–47–8, 85068- elsewhere identified in this category specially formulated for use in flame 73–1 and 82486–82–6); specifically designed, modified, throwers or incendiary munitions; metal (9) Poly-NIMMO adapted, or configured (e.g., formulated) stearates or palmates (also known s (nitratomethylmethyloxetane (poly [3- for military application. octol); and M1, M2 and M3 thickeners; nitratomethyl, 3-methyl oxetane] or (c) Pyrotechnics, fuels and related (10) Any other pyrotechnic, fuel and (NMMO)) (CAS 84051–81–0); substances, and mixtures thereof: related substance and mixture thereof (10) Energetic monomers, plasticizers (1) Alane (aluminum hydride)(CAS not elsewhere identified in this category and polymers containing nitro, azido 7784–21–6); specifically designed, modified, nitrate, nitraza or difluoromaino groups (2) Carboranes; decaborane (CAS adapted, or configured (e.g., formulated) specially formulated for military use; 17702–41–9); pentaborane and for military application. (11) TVOPA 1,2,3-Tris [1,2- derivatives thereof; (d) Oxidizers, to include: bis(difluoroamino) ethoxy]propane; tris (3) Hydrazine and derivatives: (1) ADN (ammonium dinitramide or vinoxy propane adduct; (i) Hydrazine (CAS 302–01–2) in SR–12) (CAS 140456–78–6); (12) Polynitrorthocarbonates; concentrations of 70% or more (not (2) AP (ammonium perchlorate) (CAS (13) FPF–1 poly-2,2,3,3,4,4-hexafluoro hydrazine mixtures specially formulated 7790–98–9); pentane-1,5-diolformal; for corrosion control); (3) BDNPN (bis,2,2- (14) FPF–3 poly-2,4,4,5,5,6,6- (ii) Monomethyl hydrazine (CAS 60– dinitropropylnitrate) (CAS 28464–24–6); heptafluoro-2-trifluoromethyl-3- 34–4); (4) DNAD (1,3-dinitro-1,3-diazetidine) oxaheptane-1,7-dioformal; (iii) Symmetrical dimethyl hydrazine (CAS 78246–06–7); (15) PGN (Polyglycidylnitrate or (CAS 540–73–8); (5) HAN (Hydroxylammonium nitrate) poly(nitratomethyl oxirane); poly- (iv) Unsymmetrical dimethyl (CAS 13465–08–2); GLYN); hydrazine (CAS 57–14–7); (6) HAP (hydroxylammonium (16) N-methyl-p-nitroaniline; (4) Liquid fuels specifically perchlorate) (CAS 15588–62–2); (17) Low (less than 10,000) molecular formulated for use by articles covered (7) HNF (Hydrazinium nitroformate) weight, alcohol-functionalized, by Categories IV, VI, and VIII; (CAS 20773–28–8); poly(epichlorohydrin); (5) Spherical aluminum powder (CAS (8) Hydrazine nitrate (CAS 37836–27– poly(epichlorohydrindiol); and triol; 7429–90–5) in particle sizes of 60 4); (18) Bis(2,2-dinitropropyl) formal and micrometers or less manufactured from (9) Hydrazine perchlorate (CAS acetal; material with an aluminum content of 27978–54–7); (19) Any other binder and mixture 99% or more; (10) Liquid oxidizers comprised of or thereof not elsewhere identified in this (6) Metal fuels in particle form containing inhibited red fuming nitric category specifically designed, whether spherical, atomized, acid (IRFNA) (CAS 8007–58–7) or modified, adapted, or configured (e.g. spheroidal, flaked or ground, oxygen diflouride; formulated) for military application. manufactured from material consisting (11) Perchlorates, chlorates, and (f) Additives: of 99% or more of any of the following: chromates composited with powdered (1) Basic copper salicylate (CAS (i) Metals and mixtures thereof: metal or other high energy fuel 62320–94–9); (A) Beryllium (CAS 7440–41–7) in components controlled by this category; (2) BHEGA (Bis-(2- particle sizes of less than 60 (12) Any other oxidizer not elsewhere hydroxyethyl)glycolamide) (CAS micrometers; identified in this category specifically 17409–41–5); (B) Iron powder (CAS 7439–89–6) designed, modified, adapted, or (3) Ferrocene Derivatives: with particle size of 3 micrometers or configured (e.g., formulated) for military (i) Butacene (CAS 125856–62–4); less produced by reduction of iron oxide application. (ii) Catocene (2,2-Bis-ethylferrocenyl with hydrogen; * (e) Binders, and mixtures thereof: propane) (CAS 37206–42–1); (ii) Mixtures, which contain any of (1) AMMO (iii) Ferrocene carboxylic acids; the following: (azidomethylmethyloxetane and its (iv) n-butyl-ferrocene (CAS 319904– (A) Boron (CAS 7440–42–8) or boron polymers) (CAS 90683–29–7) (see 29–7); carbide (CAS 12069–32–8) fuels of 85% paragraph (g)(1) of this category); (4) Lead beta-resorcylate (CAS 20936– purity or higher and particle sizes of (2) BAMO (bisazidomethyloxetane 32–7); less than 60 micrometers; and its polymers) (CAS 17607–204) (see (5) Lead citrate (CAS 14450–60–3); (B) Zirconium (CAS 7440–67–7), paragraph (g)(1) of this category); (6) Lead-copper chelates of beta- magnesium (CAS 7439–95–4) or alloys (3) BTTN (butanetrioltrinitrate) (CAS resorcylate or salicylates (CAS 68411– of these in particle sizes of less than 60 6659–60–5) (see paragraph (g)(8) of this 07–4); micrometers; category); (7) Lead maleate (CAS 19136–34–6); (iii) Explosives and fuels containing (4) FAMAO (3-difluoroaminomethyl- (8) Lead salicylate (CAS 15748–73–9); the metals or alloys listed in paragraphs 3-azidomethyl oxetane) and its (9) Lead stannate (CAS 12036–31–6); (c)(6)(i) and (c)(6)(ii) of this category polymers; (10) MAPO (tris-1-(2- whether or not the metals or alloys are (5) FEFO (bis-(2-fluoro-2,2- methyl)aziridinyl phosphine oxide) encapsulated in aluminum, magnesium, dinitroethyl)formal) (CAS 17003–79–1); (CAS 57–39–6); BOBBA–8 (bis(2-methyl zirconium, or beryllium; (6) GAP (glycidylazide polymer) (CAS aziridinyl) 2-(2-hydroxypropanoxy) (7) Pyrotechnics and pyrophoric 143178–24–9) and its derivatives; propylamino phosphine oxide); and materials specifically formulated for (7) HTPB (hydroxyl terminated other MAPO derivatives; military purposes to enhance or control polybutadiene) with a hydroxyl (11) Methyl BAPO (Bis(2-methyl the production of radiated energy in any functionality equal to or greater than 2.2 aziridinyl) methylamino phosphine part of the IR spectrum. and less than or equal to 2.4, a hydroxyl oxide) (CAS 85068–72–0);
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(12) 3-Nitraza-1,5 pentane (8) 1,2,4-trihydroxybutane (1,2,4- defined in § 120.9 of this subchapter) diisocyanate (CAS 7406–61–9); butanetriol) (CAS 3068–00–6) (see directly related to the defense articles (13) Organo-metallic coupling agents, paragraph (e)(5) of this category); enumerated in paragraphs (a) through specifically: (h) Technical data (as defined in (c) of this category. (i) Neopentyl[diallyl]oxy, tri [dioctyl] § 120.21 of this subchapter) and defense * * * * * phosphatotitanate (CAS 103850–22–2); services (as defined in § 120.8 of this also known as titanium IV, 2,2[bis 2- subchapter) directly related to the Category XIV—Toxicological Agents, propenolato-methyl, butanolato, tris defense articles numerated in Including Chemical Agents, Biological (dioctyl) phosphato] (CAS 110438–25– paragraphs (a) through (g) of this Agents, and Associated Equipment 0), or LICA 12 (CAS 103850–22–2); category. (See § 125.4 of this subchapter (ii) Titanium IV, [(2-propenolato-1) for exemptions.) Technical data directly * (a) Chemical agents, to include: methyl, n-propanolatomethyl] related to the manufacture or (1) Nerve agents: butanolato-1, production of any defense articles tris(dioctyl)pyrophosphate, or KR3538; enumerated elsewhere in this category (i) O-Alkyl (equal to or less than C10, (iii) Titanium IV, [2-propenolato- that are designated as Significant including cycloalkyl) alkyl (Methyl, 1)methyl, propanolatomethyl] Military Equipment (SME) shall itself be Ethyl, n-Propyl or butanolato-1, tris(dioctyl) phosphate; designated SME. Isopropyl)phosphonofluoridates, such (14) Polyfunctional aziridine amides (i) The following interpretations as: Sarin (GB): O-Isopropyl with isophthalic, trimesic (BITA or explain and amplify the terms used in methylphosphonofluoridate (CAS 107– butylene imine trimesamide), this category and elsewhere in this 44–8) (CWC Schedule 1A); and Soman isoyanuric, or trimethyladipic backbone subchapter. (GD): O-Pinacolyl structures and 2-methyl or 2-ethyl (1) Category V contains explosives, methylphosphonofluoridate (CAS 96– substitutions on the aziridine ring and energetic materials, propellants and 64–0) (CWC Schedule 1A); its polymers; pyrotechnics and specially formulated (ii) O-Alkyl (equal to or less than C10, (15) Superfine iron oxide (Fe2O3 fuels for aircraft, missile and naval hematite) with a specific surface area including cycloalkyl) N,N-dialkyl applications. Explosives are solid, (Methyl, Ethyl, n-Propyl or more than 250 m 2/g and an average liquid or gaseous substances or mixtures µ Isopropyl)phosphoramidocyanidates, particle size of 0.003 m or less (CAS of substances, which, in their primary, such as: Tabun (GA): O-Ethyl N, N- 1309–37–1); booster or main charges in warheads, dimethylphosphoramidocyanidate (CAS (16) TEPAN demolition or other military 77–81–6) (CWC Schedule 1A); (tetraethylenepentaamineacrylonitrile) applications, are required to detonate. (CAS 68412–45–3); cyanoethylated (2) Paragraph (c)(6)(ii)(A) of this (iii) O-Alkyl (H or equal to or less polyamines and their salts; category does not control boron and than C10, including cycloalkyl) S–2- (17) TEPANOL (Tetraethylene boron carbide enriched with boron-10 dialkyl (Methyl, Ethyl, n-Propyl or pentamineacrylonitrileglycidol) (CAS (20% or more of total boron-10 content. Isopropyl)aminoethyl alkyl (Methyl, 110445–33–5); cyanoethylated (3) The resulting product of the Ethyl, n-Propyl or polyamines adducted with glycidol and combination of any controlled or non- Isopropyl)phosphonothiolates and their salts; controlled substance compounded or corresponding alkylated and protonated (18) TPB (triphenyl bismuth) (CAS mixed with any item controlled by this 603–33–8); salts, such as: VX: O-Ethyl S-2- subchapter is also subject to the controls diisopropylaminoethyl methyl (19) PCDE (Polycyanodifluoro of this category. aminoethyleneoxide); phosphonothiolate (CAS 50782–69–9) (20) BNO (Butadienenitrileoxide); Note 1: To assist the exporter, an item has (CWC Schedule 1A); (21) Any other additive not elsewhere been categorized by the most common use. (2) Amiton: O,O-Diethyl S- identified in this category specifically Also, a reference has been provided to the [2(diethylamino)ethyl] related controlled precursors (e.g., see designed, modified, adapted, or phosphorothiolate and corresponding configured (e.g., formulated) for military paragraph (a)(12) of this category). Regardless of where the item has been placed in the alkylated or protonated salts (CAS 78– application. category, all exports are subject to the 53–5) (CWC Schedule 2A); (g) Precursors, as follows: controls of this subchapter. (1) BCMO (bischloromethyloxetane) (3) Vesicant agents: (CAS 142173–26–0) (see paragraphs Note 2: Chemical Abstract Service (CAS) (i) Sulfur mustards, such as: 2- (e)(1) and (2) of this category); registry numbers do not cover all the Chloroethylchloromethylsulfide (CAS (2) Dinitroazetidine-t-butyl salt (CAS substances and mixtures controlled by this 2625–76–5) (CWC Schedule 1A); Bis(2- 125735–38–8) (see paragraph (a)(28) of category. The numbers are provided as examples to assist the government agencies chloroethyl)sulfide (CAS 505–60–2) this category); (CWC Schedule 1A); Bis(2- (3) HBIW in the license review process and the exporter when completing their license ch1oroethylthio)methane (CAS 63839– (hexabenzylhexaazaisowurtzitane) (CAS application and export documentation. 13–6) (CWC Schedule 1A); 1,2-bis (2- 124782–15–6) (see paragraph (a)(4) of chloroethylthio)ethane (CAS 3563–36– this category); * * * * * (4) TAIW (tetraacetyldibenzylhexa- 8) (CWC Schedule 1A); 1,3-bis (2- Category X—Protective Personnel azaisowurtzitane) (see paragraph (a)(4) ch1oroethylthio)-n-propane (CAS Equipment of this category); 63905–10–2) (CWC Schedule 1A); 1,4- (5) TAT (1,3,5,7-tetraacetyl-1,3,5,7- * * * * * bis (2-chloroethylthio)-n-butane (CWC tetraaza-cyclooctane) (CAS 41378–98–7) (c) Components, parts, accessories, Schedule 1A); 1,5-bis (2- (see paragraph (a)(13) of this category); attachments, and associated equipment chloroethylthio)-n-pentane (CWC (6) Tetraazadecalin (CAS 5409–42–7) specifically designed or modified for Schedule 1A); Bis (2- (see paragraph (a)(27) of this category); use with the articles in paragraphs (a) chloroethylthiomethyl)ether (CWC (7) 1,3,5-trichorobenzene (CAS 108– and (b) of this category. Schedule 1A); Bis (2- 70–3) (see paragraph (a)(23) of this (d) Technical data (as defined in chloroethylthioethyl)ether (CAS 63918– category); § 120.10) and defense services (as 89–8) (CWC Schedule 1A);
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(ii) Lewisites, such as: 2- (6) Dibromodimethyl ether (CAS category; atropine auto injectors chlorovinyldichloroarsine (CAS 541– 4497–29–4) ; specifically designed to counter nerve 25–3) (CWC Schedule 1A); Tris (2- (7) Dichlorodimethyl ether (ClCi) agent poisoning. chlorovinyl) arsine (CAS 40334–70–1) (CAS 542–88–1); (i) Modeling or simulation tools (CWC Schedule 1A); Bis (2-chlorovinyl) (8) Ethyldibromoarsine (CAS 683–43– specifically designed or modified for chloroarsine (CAS 40334–69–8) (CWC 2); chemical or biological weapons design, Schedule 1A); (9) Bromo acetone; development or employment. The (iii) Nitrogen mustards, such as: HN1: (10) Bromo methylethylketone; concept of modeling and simulation bis (2-chloroethyl) ethylamine (CAS (11) Iodo acetone; includes software covered by paragraph 538–07–8) (CWC Schedule 1A); HN2: (12) Phenylcarbylamine chloride; (m) of this category specifically bis (2-chloroethyl) methylamine (CAS (13) Ethyl iodoacetate; designed to reveal susceptibility or 51–75–2) (CWC Schedule 1A); HN3: tris (e) Defoliants, as follows: vulnerability to biological agents or (2-chloroethyl)amine (CAS 555–77–1) (1) Agent Orange (2,4,5– materials listed in paragraph (b) of this (CWC Schedule 1A); Trichlorophenoxyacetic acid mixed category. (iv) Ethyldichloroarsine (ED); with 2,4-dichlorophenoxyacetic acid); (j) Test facilities specifically designed (v) Methyldichloroarsine (MD); (2) LNF (Butyl 2-chloro-4- or modified for the certification and (4) Incapacitating agents, such as: fluorophenoxyacetate) qualification of articles controlled in (i) 3-Quinuclindinyl benzilate (BZ) *(f) Equipment and its components, paragraph (f) of this category. (CAS 6581–06–2) (CWC Schedule 2A); parts, accessories, and attachments (k) Equipment, components, parts, (ii) Diphenylchloroarsine (DA) (CAS specifically designed or modified for accessories, and attachments, exclusive 712–48–1); military operations and compatibility of incinerators (including those which (iii) Diphenylcyanoarsine (DC); with military equipment as follows: have specially designed waste supply * (b) Biological agents and biologically (1) The dissemination, dispersion or systems and special handling facilities), derived substances specifically testing of the chemical agents and specifically designed or modified for developed, configured, adapted, or biological agents listed in paragraph (a) destruction of the chemical agents in modified for the purpose of increasing and (b) of this category; paragraph (a) or the biological agents in their capability to produce casualties in (2) The detection, identification, paragraph (b) of this category. This humans or livestock, degrade equipment warning or monitoring of the chemical destruction equipment includes or damage crops. agents and biological agents listed in facilities specifically designed or * (c) Chemical agent binary precursors paragraph (a) and (b) of this category; modified for destruction operations. and key precursors, as follows: (3) Sample collection and processing (l) Tooling and equipment specifically (1) Alkyl (Methyl, Ethyl, n-Propyl or of the chemical agents and biological designed or modified for the production Isopropyl) phosphonyl diflourides, such agents listed in paragraph (a) and (b) of of articles controlled by paragraph (f) of as: DF: Methyl Phosphonyldifluoride this category; this category. (CAS 676–99–3) (CWC Schedule 1B); (4) Individual protection against the (m) Technical data (as defined in Methylphosphinyldiflouride; chemical agents and biological agents § 120.21 of this subchapter) and defense (2) O-Alkyl (H or equal to or less than listed in paragraph (a) and (b) of this services (as defined in § 120.8 of this C , including cycloalkyl) O–2-dialkyl 10 category. subchapter) related to the defense (methyl, ethyl, n-Propyl or This includes military protective artic1es enumerated in paragraphs (a) isopropyl)aminoethyl alkyl (methyl, clothing and masks, but not those items through (l) of this category. (See § 125.4 ethyl, N-propyl or designed for domestic preparedness of this subchapter for exemptions.) isopropyl)phosphonite and (e.g., civil defense); Technical data directly related to the corresponding alkylated and protonated (5) Collective protection against the manufacture or production of any salts, such as: QL: O-Ethyl-2-di- chemical agents and biological agents defense articles enumerated elsewhere isopropylaminoethyl listed in paragraph (a) and (b) of this in this Category that are designated as methylphosphonite (CAS 57856–11–8) category. Significant Military Equipment (SME) (CWC Schedule 1B); (6) Decontamination or remediation of (3) Chlorosarin: O-Isopropyl shall itself be designated as SME. the chemical agents and biological (n) The following interpretations methylphosphonochloridate (CAS agents listed in paragraph (a) and (b) of explain and amplify the terms used in 1445–76–7) (CWC Schedule 1B); this category. (4) Chlorosoman: O-Pinakolyl this category and elsewhere in this (g) Antibodies, polynucleoides, methylphosphonochloridate (CAS subchapter. biopolymers or biocatalysts specifically (1) A chemical agent in category 7040–57–5) (CWC Schedule 1B); (5) DC: Methlyphosphonyl dichloride designed or modified for use with XIV(a) is a substance having military (CAS 676–97–1) (CWC Schedule 2B); articles controlled in paragraph (f) of application, which by its ordinary and Methylphosphinyldichloride; this category. direct chemical action, produces a (d) Tear gases and riot control agents (h) Medical countermeasures, to powerful physiological effect. including: include pre- and post-treatments, (2) The biological agents or (1) Adamsite (Diphenylamine vaccines, antidotes and medical biologically derived substances in chloroarsine or DM) (CAS 578–94–9); diagnostics, specifically designed or paragraph (b) of this category are those (2) CA (Bromobenzyl cyanide) (CAS modified for use with the chemical agents and substances capable of 5798–79–8); agents listed in paragraph (a) of this producing casualties in humans or (3) CN (Phenylacyl chloride or w- category and vaccines with the sole livestock, degrading equipment or Chloroacetophenone) (CAS 532–27-4); purpose of protecting against biological damaging crops and which have been (4) CR (Dibenz-(b,f)-1,4-oxazephine) agents identified in paragraph (b) of this modified for the specific purpose of (CAS 257–07–8); category. Examples include: barrier increasing such effects. Examples of (5) CS (o- creams specifically designed to be such modifications include increasing Chlorobenzylidenemalononitrile or o- applied to skin and personal equipment resistance to UV radiation or improving Chlorobenzalmalononitrile) (CAS 2698– to protect against vesicant agents dissemination characteristics. This does 41–1); controlled in paragraph (a) of this not include modifications made only for
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civil applications (e.g. medical or Dated: August 22, 2002. 3. On page 59761, column 3, § 1.141– environmental use). John R. Bolton, 7(g)(3), fifth line from the top of the (3) The destruction equipment Under Secretary Arms Control and column, the language ‘‘U.S.C. 791a controlled by this category related to International Security, Department of State. through 821(c) (does not’’ is corrected to biological agents in paragraph (b) is that [FR Doc. 02–29595 Filed 11–26–02; 8:45 am] read ‘‘U.S.C. 791a through 825r) (or by equipment specifically designed to BILLING CODE 4710–25–P a state regulatory authority under destroy only the agents identified in comparable provisions of state law) does paragraph (b) of this category. not’’. (4) Technical data and defense DEPARTMENT OF THE TREASURY services in paragraph (l) include Cynthia E. Grigsby, libraries, databases and algorithms Internal Revenue Service Chief, Regulations Unit, Associate Chief specifically designed or modified for Counsel, (Income Tax and Accounting). use with articles controlled in paragraph 26 CFR Part 1 [FR Doc. 02–30140 Filed 11–26–02; 8:45 am] (f) of this category. BILLING CODE 4830–01–P (5) The tooling and equipment [TD 9016] covered by paragraph (l) of this category RIN 1545–AY71 includes molds used to produce DEPARTMENT OF THE TREASURY protective masks, over-boots, and gloves Obligations of States and Political Internal Revenue Service controlled by paragraph (f) and leak Subdivisions; Correction detection equipment specifically AGENCY: Internal Revenue Service (IRS), 26 CFR Part 46 designed to test filters controlled by Treasury. paragraph (f) of this category. (6) The resulting product of the ACTION: Correction to final regulations. [TD 9024] combination of any controlled or non- SUMMARY: This document contains controlled substance compounded or RIN 1545–AY93 corrections to final regulations that were mixed with any item controlled by this published in the Federal Register on subchapter is also subject to the controls Liability For Insurance Premium Excise Monday, September 23, 2002 (67 FR of this category. Tax 59756) relating to the definition of Note 1: This Category does not control private activity bonds applicable to tax- AGENCY: Internal Revenue Service (IRS), formulations containing 1% or less CN or CS exempt bonds issued by state and local Treasury. or individually packaged tear gases or riot governments for output facilities. ACTION: control agents for personal self-defense Final regulations. DATES: This correction is effective purposes. November 22, 2002. SUMMARY: This document contains final Note 2: Categories XIV(a) and (d) do not FOR FURTHER INFORMATION CONTACT: Rose regulations under section 4374 relating include the following: M. Weber (202) 622–3880 (not a toll-free to liability for the insurance premium (1) Cyanogen chloride; number). excise tax. This document affects persons who make, sign, issue, or sell a (2) Hydrocyanic acid; SUPPLEMENTARY INFORMATION: (3) Chlorine; policy of insurance, indemnity bond, (4) Carbonyl chloride (Phosgene); Background annuity contract, or policy of (5) Ethyl bromoacetate; The final regulations that are the reinsurance issued by any foreign (6) Xylyl bromide; insurer or reinsurer. (7) Benzyl bromide; subject of these corrections is under (8) Benzyl iodide; section 141 of the Internal Revenue DATES: Effective Date: These regulations (9) Chloro acetone; Code. are effective November 27, 2002. (10) Chloropicrin (trichloronitromethane); Applicability Date: These regulations Need for Correction (11) Fluorine; are applicable to premiums paid on or (12) Liquid pepper. As published, the final regulations after November 27, 2002. contain errors that may prove to be FOR FURTHER INFORMATION CONTACT: Note 3: Chemical Abstract Service (CAS) misleading and are in need of David Lundy at (202) 622–3880 (not a registry numbers do not cover all the clarification. substances and mixtures controlled by this toll-free number). category. The numbers are provided as Correction of Publication SUPPLEMENTARY INFORMATION: examples to assist the government agencies Accordingly, the publication of final in the license review process and the Background regulations (TD 9016), that were the exporter when completing their license On January 7, 2002, the IRS and application and export documentation. subject of FR Doc. 02–24137, is corrected as follows: Treasury published a notice of proposed Note 4: With respect to U.S. obligations 1. On page 59758, column 2, in the rulemaking (REG–125450–01), 2002–5 under the Chemical Weapons Convention preamble under the paragraph heading IRB 457) in the Federal Register (67 FR (CWC), refer to Chemical Weapons ‘‘Explanation of Provisions’’, first line, 707) under section 4374 relating to the Convention Regulations (CWCR) (15 CFR the language ‘‘through 821(c) (or by a insurance premium excise tax imposed parts 710 through 722). As appropriate, the state authority’’ is corrected to read by section 4371 on certain policies CWC schedule is provided to assist the ‘‘through 825r (or by a state authority’’. issued by foreign insurance and exporter. reinsurance companies. One comment * * * * * § 1.141–7 [Corrected] letter responding to the notice of 2. On page 59761, column 2, § 1.141– proposed rulemaking was received. §§ 121.7, 121.12 and 121.13 [Removed and 7(g)(1)(ii)(B), line 5, the language ‘‘Act After consideration of these comments, Reserved] (16 U.S.C. 791a through 821c) (or by’’ is the proposed regulations are adopted as 3. Sections 121.7, 121.12 and 121.13 corrected to read ‘‘Act (16 U.S.C. 791a final regulations as revised by this are removed and reserved. through 825r) (or by’’. Treasury decision.
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Explanation of Provisions regulatory action as defined in section 4371 shall attach at the time the These final section 4374 regulations Executive Order 12866. Therefore, a premium payment is transferred to the clarify the persons who are liable for regulatory assessment is not required. It foreign insurer or reinsurer (including payment of the insurance premium has also been determined that section transfers to any bank, trust fund, or excise tax and conform the regulations 553(b) of the Administrative Procedure similar recipient, designated by the to the amendments made to section Act (5 U.S.C. chapter 5) does not apply foreign insurer or reinsurer), or to any 4374 by the Tax Reform Act of 1976 (90 to these regulations, and because these nonresident agent, solicitor, or broker. A Stat. 1525). In particular, these regulations do not impose a collection person required to pay tax under this regulations clarify that liability for the of information on small entities, the section may remit such tax before the excise tax is incurred by any person Regulatory Flexibility Act (5 U.S.C. time the tax attaches if he keeps records who makes, signs, issues, or sells any of chapter 6) does not apply. Therefore, a consistent with such practice. (c) Payment of tax. The tax imposed the documents and instruments subject Regulatory Flexibility Analysis is not by section 4371 shall be paid on the to the tax, or for whose use or benefit required. Pursuant to section 7805(f) of basis of a return by the person who the same are made, signed, issued, or the Internal Revenue Code, the notice of makes payment of the premium to a sold. proposed rulemaking preceding these foreign insurer or reinsurer or to any One commentator suggested that the regulations was submitted to the Chief nonresident agent, solicitor, or broker. If final regulation restrict application of Counsel for Advocacy of the Small the tax is not paid by the person who the section 7270 penalty to a failure to Business Administration for comment paid the premium, the tax imposed by pay the excise tax by the person who on its impact on small business. section 4371 shall be paid on the basis remitted the tax to the foreign insurer or Drafting Information of a return by any person who makes, reinsurer. Section 46.4374–1(d) of the The principal author of these signs, issues, or sells any of the regulation only is a cross-reference to regulations is David Lundy of the Office documents or instruments subject to the section 7270, which section imposes a of Associate Chief Counsel tax imposed by section 4371, or for penalty of double the amount of tax (International). However, other whose use or benefit such document or when an underpayment results from an personnel from the IRS and Treasury instrument is made, signed, issued, or intention to evade the tax. Substantive Department participated in their sold. guidance on the application of section development. (d) Penalty for failure to pay tax. Any 7270 is beyond the scope of this person who fails to comply with the List of Subjects in 26 CFR Part 46 regulation, and accordingly, no change requirements of this section with intent to the regulation was made as a result Excise taxes, Insurance, Reporting and to evade the tax shall, in addition to of this suggestion. recordkeeping requirements. other penalties provided therefor, pay a The same commentator suggested that fine of double the amount of tax. (See the final regulation clarify whether the Adoption of Amendments to the Regulations section 7270.) insured person under an insurance (e) Effective date. This section is policy may be liable for the excise tax Accordingly, 26 CFR part 46 is applicable for premiums paid on or after if all or a portion of the risks from such amended as follows: November 27, 2002. policy are reinsured with a foreign reinsurer on the basis that the insured PART 46—EXCISE TAX ON POLICIES Robert E. Wenzel, may be treated as a person for whose ISSUED BY FOREIGN INSURERS AND Deputy Commissioner of Internal Revenue. benefit the reinsurance policy was OBLIGATIONS NOT IN REGISTERED Approved: November 13, 2002. made, signed, issued or sold. In FORM Pamela F. Olson, response to the commentator’s Paragraph 1. The authority citation Assistant Secretary of the Treasury (Tax suggestion, § 46.4374–1(a) of these for part 46 continues to read as follows: Policy). regulations has been revised to provide [FR Doc. 02–30139 Filed 11–26–02; 8:45 am] Authority: 26 U.S.C. 7805. that in the case of a reinsurance policy BILLING CODE 4830–01–P other than assumption reinsurance, the Par. 2. Section 46.4374–1 is revised to insured person on the underlying read as follows: insurance policy, the risk of which is DEPARTMENT OF TRANSPORTATION covered in whole or in part by such § 46.4374–1 Liability for tax. reinsurance policy, shall not constitute (a) In general. Any person who makes, Coast Guard a person for whose use or benefit the signs, issues, or sells any of the reinsurance policy was made, signed, documents and instruments subject to 33 CFR Part 117 issued or sold. In these cases, when an the tax, or for whose use or benefit the insurer or reinsurer reinsures a risk with same are made, signed, issued, or sold, [CGD01–02–133] a foreign reinsurer, the insurer or shall be liable for the tax imposed by section 4371. For purposes of this Drawbridge Operation Regulations: reinsurer generally is the person for Hackensack River, NJ whose use or benefit the reinsurance section, in the case of a reinsurance policy is issued or sold for purposes of policy that is subject to the tax imposed AGENCY: Coast Guard, DOT. section 4374. by section 4371(3), other than ACTION: Notice of temporary deviation assumption reinsurance, the insured from regulations. Effective Date person on the underlying insurance The final regulations are effective for policy, the risk of which is covered in SUMMARY: The Commander, First Coast premiums paid on or after November 27, whole or in part by such reinsurance Guard District, has issued a temporary 2002. policy, shall not constitute a person for deviation from the drawbridge operation whose use or benefit the reinsurance regulations for the Amtrak Portal Bridge, Special Analyses policy is made, signed, issued, or sold. mile 5.0, across the Hackensack River at It has been determined that this (b) When liability for tax attaches. Little Snake Hill, New Jersey. Under this Treasury decision is not a significant The liability for the tax imposed by deviation the bridge may remain closed
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to vessel traffic for four hours a day DEPARTMENT OF COMMERCE regardless of whether a copy was from 12 midnight to 4 a.m., from ordered for regular or expedited November 18, 2002 through November United States Patent and Trademark delivery service. Therefore, we are 21, 2002. In addition, the bridge may Office eliminating the previous 37 CFR remain closed to vessel traffic for two 1.19(a)(1)(ii), (a)(1)(iii), (b)(1)(i), weekends from 9 p.m. on Saturday 37 CFR Parts 1 and 2 2.6(b)(1)(ii), (b)(1)(iii), and (b)(2)(i) fees through 9 a.m. on Sunday, from [Docket No. 2003–C–004] and reducing the previous 37 CFR December 7, 2002 through December 8, 1.19(b)(1)(ii) and 2.6(b)(2)(ii) fees. The 2002, and from December 14, 2002 RIN 0651–AB51 cost benefit from streamlining our operations will be passed on to our through December 15, 2002. This Revision of Patent and Trademark customers. ‘‘At cost’’ services are still temporary deviation is necessary to Fees for Fiscal Year 2003 facilitate repairs at the bridge. available for urgent (e.g., same day) AGENCY: United States Patent and service. DATES: This deviation is effective from Trademark Office, Commerce. Legislation has been introduced in the November 18, 2002 through December ACTION: Final rule. Congress that would alter our fees. 15, 2002. Customers should be aware that FOR FURTHER INFORMATION CONTACT: SUMMARY: The United States Patent and legislative changes to our fees would Joeseph Schmied, Project Officer, First Trademark Office (referred to as ‘‘we’’, supersede this final rule. When such Coast Guard District, at (212) 668–7165. ‘‘us’’, or ‘‘our’’ in this notice) is changes occur, we will make adjusting certain patent fee amounts and corresponding rule changes by SUPPLEMENTARY INFORMATION: The a trademark fee amount to reflect publication in the Federal Register. Amtrak Portal Bridge has a vertical fluctuations in the Consumer Price Customers may wish to refer to the clearance in the closed position of 23 Index (CPI). Also, we are adjusting, by official USPTO Web site feet at mean high water and 28 feet at a corresponding amount, a few patent (www.uspto.gov) for the most current fee mean low water. The existing fees that track the affected fees. The amounts. Official notices of any fee drawbridge operation regulations are at Director is authorized to adjust these changes will appear in the Federal 33 CFR 117.723. fees annually by the CPI to recover the Register and the Official Gazette of the The bridge owner, National Passenger higher costs associated with doing Patent and Trademark Office. business. In addition, we are amending Railroad Corporation (Amtrak), Background requested a temporary deviation from several patent and trademark document the drawbridge operation regulations to supply fees to streamline operations and Statutory Provisions facilitate necessary maintenance, the to benefit our customers. Patent fees are authorized by 35 Legislation has also been introduced replacement of the cable lift system, at U.S.C. 41, 119, 120, 132(b) and 376. For in the Congress that would alter our the bridge. The bridge must remain in fees paid under 35 U.S.C. 41(a) and (b) fees. If enacted, this legislation would the closed position to navigation to and 132(b), independent inventors, supersede many of the fees identified in perform these repairs. Vessels that can small business concerns, and nonprofit this final rule. pass under the bridge without a bridge organizations who meet the opening may do so at all times. EFFECTIVE DATE: January 1, 2003. requirements of 35 U.S.C. 41(h)(1) are The Coast Guard coordinated this FOR FURTHER INFORMATION CONTACT: entitled to a fifty-percent reduction. closure with the mariners who normally Matthew Lee by e-mail at Section 41(f) of title 35, United States use this waterway to help facilitate this [email protected], by telephone at Code, provides that fees established necessary bridge repair and to minimize (703) 305–8051, or by fax at (703) 305– under 35 U.S.C. 41(a) and (b) may be any disruption to the marine 8007. adjusted on October 1, 1992, and every transportation system. SUPPLEMENTARY INFORMATION: This final year thereafter, to reflect fluctuations in rule adjusts our fees in accordance with the CPI over the previous twelve Under this temporary deviation the the applicable provisions of title 35, months. Amtrak Portal Bridge may remain closed United States Code, as amended by the Section 41(d) of title 35, United States to vessel traffic for four days from 12 Consolidated Appropriations Act, Fiscal Code, authorizes the Director to midnight to 4 a.m., November 18, 2002 Year 2000 (which incorporated the establish fees for all other processing, through November 21, 2002. In Intellectual Property and services, or materials related to patents addition, the bridge may remain closed Communications Omnibus Reform Act to recover the average cost of providing to vessel traffic for two weekends from of 1999) (Public Law 106–113), and these services or materials, except for 9 p.m. on Saturday through 9 a.m. on section 1113 of title 15, United States the fees for recording a document Sunday, from December 7, 2002 through Code. This final rule also adjusts, by a affecting title, for each photocopy, for December 8, 2002 and from December corresponding amount, a few patent fees each black and white copy of a patent, 14, 2002 through December 15, 2002. (37 CFR 1.17(e), (r), (s), and (t)) that and for standard library service. This deviation from the operating track statutory fees (either 37 CFR Section 41(g) of title 35, United States regulations is authorized under 33 CFR 1.16(a) or 1.17(m)). Code, provides that new fee amounts 117.35, and will be performed with all In addition, this final rule amends established by the Director under due speed in order to return the bridge several patent and trademark document section 41 may take effect thirty days to normal operation as soon as possible. supply fees. The wider availability of after notice in the Federal Register and patent and trademark image stores to the Official Gazette of the United States Dated: November 18, 2002. retrieve and make copies has allowed us Patent and Trademark Office. V.S. Crea, to process and fill customer orders for Section 1113 of title 15, United States Rear Admiral, U.S. Coast Guard, Commander, issued patents, registered trademarks, Code, authorizes the Director to First Coast Guard District. and both patent and trademark establish fees for the filing and [FR Doc. 02–30104 Filed 11–26–02; 8:45 am] applications-as-filed more predictably processing of an application for the BILLING CODE 4910–15–P and in shorter total turnaround times, registration of a trademark or other
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mark, and for all other services and Mailing or Transmission, where such a Section 2.6 Trademark Service Fees materials relating to trademarks and certificate is authorized under 37 CFR Section 2.6, paragraph (a)(1), is other marks. 1.8. Use of a Certificate of Mailing or revised to adjust the fee established Section 1113(a) of title 15, United Transmission is not authorized for items therein to reflect fluctuations in the CPI. States Code, allows trademark fees to be that are specifically excluded from the Section 2.6, paragraphs (b)(1) and adjusted once each year to reflect, in the provisions of § 1.8. Items for which a (b)(2), are amended to streamline aggregate, any fluctuations during the Certificate of Mailing or Transmission operations and to benefit our customers. preceding twelve months in the CPI. under § 1.8 are not authorized include, Section 1113(a) allows new trademark for example, filing of Continued Response to Comments fee amounts to take effect thirty days Prosecution Applications (CPAs) under We received several comments in after notice in the Federal Register and § 1.53(d) and other national and response to the notice of proposed the Official Gazette of the United States international applications for patents. rulemaking published at 67 FR 30634 on Patent and Trademark Office. See 37 CFR 1.8(a)(2). May 7, 2002. The comments and our Fee Adjustment Level Patent-related correspondence responses to the comments follow: delivered by the ‘‘Express Mail Post Comment: One comment stated that The patent statutory fees established Office to Addressee’’ service of the by 35 U.S.C. 41(a) and (b) will be we should not increase the trademark United States Postal Service (USPS) is application fee for fiscal year 2003, adjusted on January 1, 2003, to reflect considered filed or received in our fluctuations occurring during the since millions of dollars are being office on the date of deposit with the diverted to fund other Federal twelve-month period from October 1, USPS. See 37 CFR 1.10(a)(1). The date 2001, through September 30, 2002, in Government operations and are not of deposit with the USPS is shown by being used to improve our performance the Consumer Price Index for All Urban the ‘‘date-in’’ on the ‘‘Express Mail’’ Consumers (CPI–U). The Office of or services. mailing label or other official USPS Response: Our budget for fiscal year Management and Budget has advised us notation. Certain trademark documents that in calculating these fluctuations, we 2003 is comprised of the expected fiscal sent by the ‘‘Express Mail Post Office to year 2003 fee revenue (less a designated should use CPI–U data as determined by Addressee’’ service are deemed filed on the Secretary of Labor. In accordance carryover amount) added to carryover the date of receipt in our office. See 37 amounts from prior fiscal years. If fees with previous fee-setting methodology, CFR 1.10(a)(1)(ii). we base this fee adjustment on the are not adjusted by CPI, the anticipated To ensure clarity in the fee revenue for fiscal year 2003 would Administration’s actual CPI–U for the implementation of the new fees, a twelve-month period ending September be lower; this in turn would reduce the discussion of specific sections is set available funding and have a negative 30, 2002, which is 1.5 percent. Based on forth below. this actual CPI–U, patent statutory fees impact on our operations. Therefore, will be adjusted by 1.5 percent. Discussion of Specific Rules adjusting our fees by CPI is critical to Certain patent processing fees ensure adequate funding is available. Section 1.16 National Application established under 35 U.S.C. 41(d), 119, Comment: One comment stated that Filing Fees 120, 132(b), 376, and Public Law 103– the publication fee under 37 CFR 465 (the Uruguay Round Agreements Section 1.16, paragraphs (a), (g), and 1.18(d) should be reduced by fifty- Act) will be adjusted to reflect (h), are revised to adjust fees established percent for independent inventors, fluctuations in the CPI. therein to reflect fluctuations in the CPI. small business concerns, and nonprofit A trademark processing fee organizations. Section 1.17 Patent Application and established under 15 U.S.C. 1113 will be Response: The Director does not have Reexamination Processing Fees adjusted to reflect fluctuations in the the authority to provide for a fifty- CPI. Section 1.17, paragraphs (a)(2) percent reduction. Several patent and trademark through (a)(5), (e), (m), and (r) through Comment: One comment stated that document supply fees established under (t), are revised to adjust fees established the Director does not have the authority 35 U.S.C. 41(d) and 15 U.S.C. 1113(a) therein to reflect fluctuations in the CPI. to adjust patent fees by a projected CPI. will be amended to streamline Response: Due to the timing of this Section 1.18 Patent Post Allowance operations and benefit our customers. year’s fee adjustment, we have used the The fee amounts were rounded by (Including Issue) Fees actual CPI. applying standard arithmetic rules so Section 1.18, paragraphs (a) through Other Considerations that the amounts rounded will be (c), are revised to adjust fees established convenient to the user. Fees for other therein to reflect fluctuations in the CPI. This final rule contains no than a small entity of $100 or more were information collection requirements Section 1.19 Document Supply Fees rounded to the nearest $10. Fees of less within the meaning of the Paperwork than $100 were rounded to an even Section 1.19, paragraphs (a)(1) and Reduction Act of 1995, 44 U.S.C. 3501 number so that any comparable small (b)(1), are amended to streamline et seq. This final rule has been entity fee will be a whole number. operations and to benefit our customers. determined to be not significant for purposes of Executive Order 12866. General Procedures Section 1.20 Post Issuance Fees This final rule does not contain policies Any fee amount that is paid on or Section 1.20, paragraphs (e) through with Federalism implications sufficient after the effective date of the fee (g), are revised to adjust fees established to warrant preparation of a Federalism adjustment will be subject to the new therein to reflect fluctuations in the CPI. Assessment under Executive Order fees then in effect. The amount of the 13132 (August 4, 1999). fee to be paid will be determined by the Section 1.492 National Stage Fees The Deputy General Counsel for time of filing. The time of filing will be Section 1.492, paragraphs (a)(1) General Law of the United States Patent determined either according to the date through (a)(3), and (a)(5), are revised to and Trademark Office has certified to of receipt in our office or the date adjust fees established therein to reflect the Chief Counsel for Advocacy, Small reflected on a proper Certificate of fluctuations in the CPI. Business Administration, that the final
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rule change will not have a significant § 1.17 Patent application and 5. Section 1.19 is amended by revising economic impact on a substantial reexamination processing fees. paragraphs (a)(1) and (b)(1) to read as number of small entities (Regulatory (a) * * * follows: Flexibility Act, 5 U.S.C. 605(b)). The (1) * * * final rule change increases fees to reflect (2) For reply within second month: § 1.19 Document supply fees. the change in the CPI as authorized by By a small entity (§ 1.27(a))—$205.00 * * * * * 35 U.S.C. 41(f). Further, the principal By other than a small entity—$410.00 (a) * * * impact of the major patent fees has (3) For reply within third month: (1) Printed copy of the paper portion of already been taken into account in 35 By a small entity (§ 1.27(a))—$465.00 a patent application publication or U.S.C. 41(h)(1), which provides small By other than a small entity—$930.00 patent, including a design patent, entities with a fifty-percent reduction in (4) For reply within fourth month: statutory invention registration, or the major patent fees. We received By a small entity (§ 1.27(a))—$725.00 defensive publication document. roughly 98,000 patent applications By other than a small entity— Service includes preparation of (approximately 30 percent of total $1,450.00 copies by the Office within two to (5) For reply within fifth month: patent applications) last year from small three business days and delivery by By a small entity (§ 1.27(a))—$985.00 entities. Since the average small entity United States Postal Service; and By other than a small entity— preparation of copies by the Office fee will increase by less than $7.00, with $1,970.00 a minimum increase of $5.00 and a within one business day of receipt maximum increase of $25.00, there will * * * * * and delivery to an Office Box or by not be a significant economic impact on (e) To request continued examination electronic means (e.g., facsimile, a substantial number of small entities pursuant to § 1.114: electronic mail)—$3.00 due to this final rule change. By a small entity (§ 1.27(a))—$375.00 * * * * * By other than a small entity—$750.00 (b) * * * Lists of Subjects * * * * * (1) Certified or uncertified copy of the 37 CFR Part 1 (m) For filing a petition for the revival paper portion of patent application of an unintentionally abandoned as filed processed within seven Administrative practice and application, for the unintentionally procedure, Patents. calendar days—$20.00 delayed payment of the fee for * * * * * 37 CFR Part 2 issuing a patent, or for the revival of an unintentionally terminated 6. Section 1.20 is amended by revising Administrative practice and reexamination proceeding under 35 paragraphs (e) through (g) to read as procedure, Trademarks. U.S.C. 41(a)(7) (§ 1.137(b)): follows: For the reasons set forth in the By a small entity (§ 1.27(a))—$650.00 § 1.20 Post issuance fees. preamble, we are amending title 37 of By other than a small entity— * * * * * the Code of Federal Regulations, parts 1 $1,300.00 and 2, as set forth below. (e) For maintaining an original or * * * * * reissue patent, except a design or PART 1—RULES OF PRACTICE IN (r) For entry of a submission after final plant patent, based on an PATENT CASES rejection under § 1.129(a): application filed on or after By a small entity (§ 1.27(a))—$375.00 December 12, 1980, in force beyond 1. The authority citation for 37 CFR By other than a small entity—$750.00 four years; the fee is due by three part 1 continues to read as follows: (s) For each additional invention years and six months after the Authority: 35 U.S.C. 2, unless otherwise requested to be examined under original grant: noted. § 1.129(b): By a small entity (§ 1.27(a))—$445.00 By a small entity (§ 1.27(a))—$375.00 By other than a small entity—$890.00 2. Section 1.16 is amended by revising By other than a small entity—$750.00 (f) For maintaining an original or reissue paragraphs (a), (g), and (h) to read as (t) For the acceptance of an patent, except a design or plant follows: unintentionally delayed claim for patent, based on an application priority under 35 U.S.C. 119, 120, § 1.16 National application filing fees. filed on or after December 12, 1980, 121, or 365(a) or (c) (a) Basic fee for filing each application (§§ 1.55 and 1.78)—$1,300.00 in force beyond eight years; the fee for an original patent, except is due by seven years and six 4. Section 1.18 is amended by revising provisional, design, or plant months after the original grant: paragraphs (a) through (c) to read as applications: By a small entity (§ 1.27(a))— By a small entity (§ 1.27(a))—$375.00 follows: $1,025.00 By other than a small entity—$750.00 § 1.18 Patent post allowance (including By other than a small entity— * * * * * issue) fees. $2,050.00 (g) Basic fee for filing each plant (a) Issue fee for issuing each original or (g) For maintaining an original or application, except provisional reissue patent, except a design or reissue patent, except a design or applications: plant patent: plant patent, based on an By a small entity (§ 1.27(a))—$260.00 By a small entity (§ 1.27(a))—$650.00 application filed on or after By other than a small entity—$520.00 By other than a small entity— December 12, 1980, in force beyond (h) Basic fee for filing each reissue $1,300.00 twelve years; the fee is due by application: (b) Issue fee for issuing a design patent: eleven years and six months after By a small entity (§ 1.27(a))—$375.00 By a small entity (§ 1.27(a))—$235.00 the original grant: By other than a small entity—$750.00 By other than a small entity—$470.00 By a small entity (§ 1.27(a))— * * * * * (c) Issue fee for issuing a plant patent: $1,575.00 3. Section 1.17 is amended by revising By a small entity (§ 1.27(a))—$315.00 By other than a small entity— paragraphs (a)(2) through (a)(5), (e), (m), By other than a small entity—$630.00 $3,150.00 and (r) through (t) to read as follows: * * * * * * * * * *
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7. Section 1.492 is amended by and delivery by United States Postal reference, Intergovernmental relations, revising paragraphs (a)(1) through (a)(3), Service; and preparation of copies Particulate matter. and (a)(5) to read as follows: by the Office within one business Dated: November 19, 2002. day of receipt and delivery to an Bharat Mathur, § 1.492 National stage fees. Office Box or by electronic means Acting Regional Administrator, Region 5. * * * * * (e.g., facsimile, electronic mail)— (a) The basic national fee: $3.00 Accordingly, the addition of 40 CFR (1) Where an international preliminary (2) Certified or uncertified copy of 52.770(c)(152) is withdrawn as of examination fee as set forth in trademark application as filed November 27, 2002. § 1.482 has been paid on the processed within seven calendar [FR Doc. 02–30118 Filed 11–26–02; 8:45 am] international application to the days—$15.00 United States Patent and Trademark BILLING CODE 6560–50–P * * * * * Office: By a small entity (§ 1.27(a))—$360.00 Dated: November 21, 2002. By other than a small entity—$720.00 James E. Rogan, ENVIRONMENTAL PROTECTION (2) Where no international preliminary Under Secretary of Commerce for Intellectual AGENCY examination fee as set forth in Property and Director of the United States 40 CFR Parts 141 and 142 § 1.482 has been paid to the United Patent and Trademark Office. States Patent and Trademark Office, [FR Doc. 02–30086 Filed 11–26–02; 8:45 am] but an international search fee as BILLING CODE 3510–16–P [FRL–7413–9] set forth in § 1.445(a)(2) has been paid on the international RIN 2040–AD06 application to the United States ENVIRONMENTAL PROTECTION National Primary Drinking Water Patent and Trademark Office as an AGENCY International Searching Authority: Regulations: Minor Revisions to Public Notification Rule, Consumer By a small entity (§ 1.27(a))—$375.00 40 CFR Part 52 By other than a small entity—$750.00 Confidence Report Rule and Primacy (3) Where no international preliminary [IN144–2; FRL7414–2] Rule examination fee as set forth in § 1.482 has been paid and no Approval and Promulgation of AGENCY: Environmental Protection international search fee as set forth Implementation Plans; Indiana; Agency. in § 1.445(a)(2) has been paid on the Withdrawal of Direct Final Rule ACTION: Final rule. international application to the AGENCY: Environmental Protection United States Patent and Trademark SUMMARY: The Environmental Protection Agency (EPA). Office: Agency (EPA) is finalizing changes to By a small entity (§ 1.27(a))—$530.00 ACTION: Withdrawal of direct final rule. the health effects language for di(2- By other than a small entity— ethylhexyl) adipate (DEHA) and di(2- SUMMARY: Due to an adverse comment, $1,060.00 ethylhexyl) phthalate (DEHP) in the the EPA is withdrawing the direct final (4) * * * Public Notification (PN) Rule and the (5) Where a search report on the rule revising particulate matter (PM) Consumer Confidence Report (CCR) international application has been control requirements for certain natural Rule under the Safe Drinking Water Act prepared by the European Patent gas combustion sources in Indiana. In (SDWA). Today’s rule also makes minor Office or the Japan Patent Office: the direct final rule published on corrections to Appendix A of the CCR By a small entity (§ 1.27(a))—$450.00 October 11, 2002 (67 FR 63268), we Rule. These changes include: correcting By other than a small entity—$900.00 stated that if we receive adverse drinking water source information listed comment by November 12, 2002, the * * * * * for copper, changing the placement of rule would be withdrawn and not take regulatory and health effects PART 2—RULES OF PRACTICE IN effect. EPA subsequently received information for disinfection by-products TRADEMARK CASES adverse comment. EPA will address the (i.e., bromate, chloramines, chlorite, comments received in a subsequent chlorine, and chlorine dioxide), and 1. The authority citation for 37 CFR final action based upon the proposed correcting the reference ‘‘chloride part 2 continues to read as follows: action also published on October 11, dioxide’’ to ‘‘chlorine dioxide.’’ The Authority: 35 U.S.C. 2, unless otherwise 2002 (67 FR 63353). EPA will not Agency is also amending the listing for noted. institute a second comment period on three contaminants (i.e., bromate, this action. 2. Section 2.6 is amended by revising chlorite, and total trihalomethanes) to paragraphs (a)(1), (b)(1) and (b)(2) to EFFECTIVE DATE: The direct final rule is correct source information given in read as follows: withdrawn as of November 27, 2002. Appendix A. The appendix listed ‘‘by- FOR FURTHER INFORMATION CONTACT: Matt product of chlorination,’’ a specific § 2.6 Trademark fees. Rau, Environmental Engineer, method of disinfection, as the major * * * * * Regulation Development Section, Air source for these contaminants in (a) * * * Programs Branch (AR–18J), U.S. drinking water. The source information (1) For filing an application, per class— Environmental Protection Agency, in Appendix A is being amended to $335.00 Region 5, 77 West Jackson Boulevard, include the more general term ‘‘by- * * * * * Chicago, Illinois 60604, Telephone: product of drinking water disinfection’’ (b) * * * (312) 886–6524. for these contaminants. In addition, the (1) For printed copy of registered mark, Agency is revising the Primacy Rule to copy only. Service includes List of Subjects in 40 CFR Part 52 remove regulations pertaining to the preparation of copies by the Office Environmental protection, Air Administrator’s authority to waive within two to three business days pollution control, Incorporation by national primary drinking water
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regulations (NPDWRs) for Federally response to comments document, and Avenue, NW, (MC–4606M), owned or operated public water other major supporting documents for Washington, DC 20460; by phone, 202– systems. This authority was removed by this rulemaking are available for review 564–3842; or by e-mail: Congress in the 1996 amendments to the at EPA’s Water Docket, in the EPA [email protected]. For general Safe Drinking Water Act. Docket Center (EPA/DC), EPA West, Rm information, you may contact the Safe B102, 1301 Constitution Avenue, NW, DATES: This regulation is effective Drinking Water Hotline at 1–800–425– Washington, DC. An electronic version December 27, 2002. For judicial review 4791. The Safe Drinking Water Hotline of the public docket is available through is open from 9:00 a.m. to 5:30 p.m. purposes, this final rule is promulgated EPA’s electronic public docket and as of 1:00 p.m. Eastern Time on Eastern Time, Monday through Friday, comment system, EPA Dockets, at excluding Federal holidays. November 27, 2002. http://www.epa.gov/edocket/. ADDRESSES: Applicable Federal Register FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: notices, public comments received, the Khanna Johnston at 1200 Pennsylvania
TABLE OF REGULATED ENTITIES
Category Examples of regulated entities
State/Local/Tribal governments ...... Publicly-owned Public Water Systems (PWSs), such as municipalities; county governments, water dis- tricts, water and sewer authorities, state governments, and other publicly-owned entities that deliver drinking water as an adjunct to their primary business (e.g., schools, State parks, roadside rest stops). Industry ...... Privately-owned PWSs, such as private utilities, homeowner associations, and other privately-owned entities that deliver drinking water as an adjunct to their primary business (e.g., trailer parks, fac- tories, retirement homes, day-care centers). Federal government ...... Federally-owned PWSs, such as water systems on military bases.
This table is not intended to be 4:30 p.m. Eastern Time, Monday PWS Public Water System exhaustive, but rather provides a guide through Friday, excluding legal RFA Regulatory Flexibility Act for readers regarding entities likely to be holidays. The telephone number for the SBREFA Small Business Regulatory regulated by this action. This table lists Reading Room is 202–566–1744, and the Enforcement Fairness Act the types of entities that EPA is now telephone number for the Water Docket SDWA Safe Drinking Water Act aware could potentially be regulated by is 202–566–2426. TTHM Total Trihalomethanes UMRA Unfunded Mandates Reform Act this action. Other types of entities not An electronic version of the public U.S.C. United States Code listed in this table could also be docket is available through EPA’s regulated. To determine whether your electronic public docket and comment Table of Contents facility is regulated by this action, you system, EPA Dockets. You may use EPA I. Statutory Authority should carefully examine the Dockets at http://www.epa.gov/edocket/ II. Background applicability criteria in §§ 141.151 and to view public comments, access the III. Administrative Requirements 141.201 of Title 40 of the Code of index listing of the contents of the A. Executive Order 12866—Regulatory Federal Regulations (CFR). If you have official public docket, and to access Planning and Review questions regarding the applicability of those documents in the public docket B. Executive Order 13045—Protection of this action to your particular facility, that are available electronically. Once in Children From Environmental Health consult the person listed in the the system, select ‘‘search,’’ then key in Risks and Safety Risks preceding FOR FURTHER INFORMATION the appropriate docket identification C. Unfunded Mandates Reform Act D. Paperwork Reduction Act CONTACT section. number. Although not all docket E. Regulatory Flexibility Act, as amended materials may be available How Can I Get Copies of This by the Small Business Regulatory Document and Other Related electronically, you may still access any Enforcement Fairness Act of 1996 Information? of the publicly available docket (SBREFA), 5 U.S.C. 601 et. seq. materials through the docket facility F. National Technology Transfer and EPA has established an official public identified in the previous paragraph or Advancement Act docket for this action under Docket ID under the ADDRESSES section. G. Executive Order 12898—Environmental No. W–01–07. The official public docket Acronyms Used in This Rule Justice consists of the documents specifically H. Executive Order 13132—Federalism referenced in this action, any public CCR Consumer Confidence Report I. Executive Order 13175—Consultation comments received, and other CFR Code of Federal Regulations and Coordination with Indian Tribal information related to this action. CWS Community Water System Governments DBP Disinfection Byproduct J. Executive Order 13211—Actions Although a part of the official docket, DEHA Di(2-ethylhexyl)adipate Concerning Regulations that the public docket does not include DEHP Di(2-ethylhexyl)phthalate Significantly Affect Energy Supply, Confidential Business Information (CBI) EPA Environmental Protection Agency or other information whose disclosure is FR Federal Register Distribution, or Use restricted by statute. The official public MCL Maximum Contaminant Level K. Congressional Review Act MCLG Maximum Contaminant Level Goal L. Plain Language Directive docket is the collection of materials that M. Administrative Procedure Act is available for public viewing at EPA’s NPDWR National Primary Drinking Water Water Docket, in the EPA Docket Center Regulation NTTAA National Technology Transfer and I. Statutory Authority (EPA/DC), EPA West, Room B102, 1301 Advancement Act Constitution Avenue, NW., Washington, OMB Office of Management and Budget The purpose of this rulemaking is to DC. The EPA Docket Center Public PN Public Notification finalize the EPA’s proposed Reading Room is open from 8:30 a.m. to PPM Parts Per Million modifications to Minor Revisions of the
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Public Notification Rule and Consumer Association (now known as the bromate, chlorite, and total Confidence Report Rule and to revise American Chemistry Council) submitted trihalomethanes) to reference the more the Primacy Rule to remove an outdated comments questioning several aspects of general term, ‘‘by-product of drinking authority. The Safe Drinking Water Act the health effects language for DEHA water disinfection,’’ rather than (SDWA) (section 1414(c)), as amended and DEHP. This included references to ‘‘chlorination,’’ which is one specific in 1996, mandated that EPA revise its ‘‘general toxic effects’’ for DEHA and the method of disinfection. Finally, this rule existing regulations governing public basis for characterizing DEHP as a deletes a provision in EPA’s primacy notification. When a violation occurs, human carcinogen. regulations at 40 CFR 142.3(b)(3). This public water systems must provide EPA published the final PN Rule (65 section pertains to the Administrator’s information to their consumers on the FR 25981, May 4, 2000) in May 2000. former authority to waive national potential health effects from exposure to The American Chemistry Council (ACC) primary drinking water regulations the contaminant in question. filed a petition in the DC Court of (NPDWRs) for Federally owned or This public notification is an integral Appeals for review of the PN Rule, operated public water systems. This part of public health protection and based on the DEHA and DEHP health authority was removed by Congress in consumer right-to-know provisions of effects language. In reexamining the the 1996 amendments to the Safe the SDWA (section 1414), as amended ACC comments on the PN rule, EPA Drinking Water Act (SDWA), and is no in 1996. EPA issued revised public determined that changes to the health longer applicable. EPA determined for notification regulations in May 2000, effects language for these contaminants the latter two corrections in today’s final that set requirements for public water in both the PN and CCR Rules would be rule that there is ‘‘good cause’’ for systems to follow with respect to the appropriate. In a settlement agreement making these minor changes final form, manner, frequency, and content of with ACC, EPA agreed to propose, and without prior proposal and opportunity a public notice. The revised Public subsequently did propose, changes to for comment, because these changes Notification (PN) Rule (40 CFR part 141, the health effects language for these two have no substantive impact and merely subpart Q) provides specific health contaminants. EPA accepted comment correct CFR text. effects statements for each regulated on the health effects language specific contaminant that a public water system only to DEHA and DEHP. EPA also used III. Administrative Requirements must provide its consumers in the event the proposed modifications as an A. Executive Order 12866—Regulatory of a public notice. opportunity to make and seek comment Planning and Review SDWA (section 1414) requires on other minor corrections to appendix community water systems to issue an A of the CCR Rule (66 FR 46930, Under Executive Order 12866 (58 FR annual water quality report to their September 7, 2001). The comments 51735, October 4, 1993), the Agency customers. The report provides a received were generally favorable, must determine whether the regulatory snapshot of local drinking water quality, supporting the proposed changes. A action is ‘‘significant’’ and therefore a list of contaminants found in the copy of these comments and the subject to Office of Management and water, potential health effects of any response to comments document are Budget (OMB) review and the contaminants found above Federal available for review in the public requirements of the Executive Order. health standards, and measures being docket. In view of the comments The Order defines ‘‘significant undertaken by the water system to received and for the reasons set forth in regulatory action’’ as one that is likely protect the drinking water supply. As the preamble to the September 7, 2001 to result in a rule that may: part of the Consumer Confidence Report proposal, today’s rule amends 40 CFR (1) Have an annual effect on the (CCR) Rule (40 CFR part 141, subpart part 141 to reflect the health effects economy of $100 million or more or O), CWSs must provide a statement language changes for DEHA and DEHP adversely affect in a material way the concerning the health effects of proposed on September 7, 2001. economy, a sector of the economy, contaminants found at levels that EPA is also making several productivity, competition, jobs, the violate the Federal health standard. corrections to language in appendix A of environment, public health or safety, or SDWA also requires States to meet set the CCR Rule. These are as follows: State, local, or Tribal governments or regulations for implementation and ‘‘Leaching from wood preservatives’’ communities; enforcement authority of national was incorrectly listed as a major source (2) Create a serious inconsistency or primary drinking water regulations as of copper in drinking water. This rule otherwise interfere with an action taken specified in section 1413 and the deletes ‘‘leaching from wood or planned by another agency; Primacy Rule (40 CFR part 142). preservatives’’ from drinking water (3) Materially alter the budgetary source information for copper. impact of entitlements, grants, user fees, II. Background Regulatory and health effects or loan programs or the rights and On May 14, 1999, EPA published information for the disinfection obligations of recipients thereof; or proposed revisions to the PN Rule for byproducts bromate, chloramines, (4) Raise novel legal or policy issues public comment. In this rulemaking chlorite, chlorine, and chlorine dioxide arising out of legal mandates, the EPA proposed to use the same brief was incorrectly placed in the volatile President’s priorities, or the principles health effects language for the PN Rule organic contaminants section of set forth in the Executive Order. as EPA had recently adopted in the appendix A. Today’s action moves It has been determined that this rule Consumer Confidence Report (CCR) entries for these disinfection byproducts is not a ‘‘significant regulatory action’’ Rule (63 FR 44511, August 19, 1998). from their existing locations and places under the terms of Executive Order This language is now codified at 40 CFR them in the inorganic contaminants 12866 and is therefore not subject to part 141, subpart O, appendix A. As a section of appendix A. In addition, the OMB review. result, the PN proposal contained the entry for chlorine dioxide was B. Executive Order 13045—Protection of CCR health effects language for di(2- inadvertently listed as ‘‘chloride Children From Environmental Health ethylhexyl)adipate (DEHA) and di(2- dioxide.’’ This rule corrects this Risks and Safety Risks ethylhexyl)phthalate (DEHP). During the reference to read ‘‘chlorine dioxide.’’ public comment period on the proposed This rule also amends information Executive Order 13045 (62 FR 19885, PN Rule, the Chemical Manufacturers listed for three contaminants (i.e., April 23, 1997) applies to any rule that:
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(1) is determined to be ‘‘economically Federal intergovernmental mandates, are listed in 40 CFR part 9 and 48 CFR significant’’ as defined under Executive and informing, educating, and advising chapter 15. Order 12866, and (2) concerns an small governments on compliance with E. Regulatory Flexibility Act (RFA), as environmental health or safety risk that the regulatory requirements. Amended by the Small Business EPA has reason to believe may have a Today’s rule contains no Federal Regulatory Enforcement Fairness Act of disproportionate effect on children. If mandates (under the regulatory the regulatory action meets both criteria, provisions of Title II of the UMRA) for 1996 (SBREFA), 5 U.S.C 601 et. seq. the Agency must evaluate the State, local, or Tribal governments or The Regulatory Flexibility Act (RFA) environmental health or safety effects of the private sector. The rule imposes no generally requires an agency to prepare the planned rule on children, and enforceable duty on any State, local or a regulatory flexibility analysis of any explain why the planned regulation is Tribal governments or the private sector. rule subject to the notice-and-comment preferable to other potentially effective This rule does not change the costs to rulemaking requirement under the and reasonably feasible alternatives State, local, or Tribal governments as Administrative Procedure Act or any considered by the Agency. This Rule is estimated in the final Public other statute unless the agency certifies not subject to Executive Order 13045 Notification Rule (65 FR 25981, May 4, that the rule will not have a significant because it is not economically 2000) and the final Consumer economic impact on a substantial significant as defined in Executive Confidence Report Rule (63 FR 44511, number of small entities. Small entities Order 12866. This rule makes minor August 19, 1998), and does not change include small businesses, small changes to the Public Notification Rule, either the frequency of reports or the organizations, and small government Consumer Confidence Report Rule, and regulatory burden of public notification. jurisdictions. Primacy Rule that do not change the Thus, today’s rule is not subject to the The RFA provides default definitions regulatory burden. requirements of sections 202 and 205 of for each type of small entity. It also the UMRA. C. Unfunded Mandates Reform Act authorizes an agency to use alternative For the same reason, EPA has definitions for each category of small Title II of the Unfunded Mandates determined that this rule contains no entity, ‘‘which are appropriate to the Reform Act of 1995 (UMRA), Public regulatory requirements that might activities for the agency’’ after proposing Law 104–4, establishes requirements for significantly or uniquely affect small the alternative definition(s) in the Federal agencies to assess the effects of governments. Thus today’s rule is not Federal Register and taking comment (5 their regulatory actions on State, local, subject to the requirements of section U.S.C. secs. 601(3)—(5)). In addition to and Tribal governments and the private 203 of UMRA. the above, to establish an alternative sector. Under section 202 of the UMRA, D. Paperwork Reduction Act small business definition, agencies must EPA generally must prepare a written consult with the Small Business statement, including a cost-benefit This action does not impose an analysis, for proposed and final rules information collection burden under the Administration’s Chief Counsel for with ‘‘Federal mandates’’ that may provisions of the Paperwork Reduction Advocacy. result in expenditures to State, local, Act, 44 U.S.C. 3501 et seq. This rule For purposes of assessing the impacts and Tribal governments, in the makes minor changes to the Public of today’s rule on small entities, EPA aggregate, or to the private sector, of Notification Rule, the Consumer considered small entities to be public $100 million or more in any one year. Confidence Report Rule, and the water systems serving 10,000 or fewer Before promulgating an EPA rule for Primacy Rule and does not change the persons. This is the cut-off level which a written statement is needed, frequency of reporting or the regulatory specified by Congress in the Safe section 205 of the UMRA generally burden. Drinking Water Act Amendments of requires EPA to identify and consider a Burden means the total time, effort, or 1996 for small system flexibility reasonable number of regulatory financial resources expended by persons provisions. In accordance with the RFA alternatives and adopt the least costly, to generate, maintain, retain, disclose or requirements, EPA proposed using this most cost-effective or least burdensome provide information to or for a Federal alternative definition in the Federal alternative that achieves the objectives agency. This includes the time needed Register (63 FR 7620, February 13, of the rule. The provisions of section to review instructions; develop, acquire, 1998), requested public comment, 205 do not apply when they are install, and utilize technology and consulted with the Small Business inconsistent with applicable law. systems for the purposes of collecting, Administration, finalized this definition Moreover, section 205 allows EPA to validating, and verifying information, for the final CCR regulation, and adopt an alternative other than the least processing and maintaining expressed its intention to use the costly, most cost-effective or least information, and disclosing and alternative definition for all future burdensome alternative if the providing information; adjust the drinking water regulations (63 FR Administrator publishes with the final existing ways to comply with any 44511, August 19, 1998). As stated in rule an explanation why that alternative previously applicable instructions and that final rule, the alternative definition was not adopted. requirements; train personnel to be able is applied to this regulation as well. Before EPA establishes any regulatory to respond to a collection of After considering the economic requirements that may significantly or information; search data sources; impacts of today’s final rule on small uniquely affect small governments, complete and review the collection of entities, I certify that this action will not including Tribal governments, it must information; and transmit or otherwise have a significant economic impact on have developed under section 203 of the disclose the information. a substantial number of small entities. UMRA a small government agency plan. An Agency may not conduct or This rule makes minor changes to the This plan must provide for notifying sponsor, and a person is not required to Public Notification Rule, the Consumer potentially affected small governments, respond to a collection of information, Confidence Report Rule, and the enabling officials of affected small unless it displays a currently valid Primacy Rule and imposes no additional governments to have meaningful and Office of Management and Budget enforceable duty on any State, local or timely input in the development of EPA (OMB) control number. The OMB Tribal governments or the private sector. regulatory proposals with significant control numbers for EPA’s regulations It does not change either the frequency
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of reports or the regulatory burden of and local officials in the development of Primacy Rule. Thus, Executive Order public notification. regulatory policies that have federalism 13175 does not apply to this rule. implications.’’ ‘‘Policies that have Nevertheless, in the spirit of F. National Technology Transfer and federalism implications’’ is defined in Executive Order 13175, and consistent Advancement Act the Executive Order to include with EPA policy to promote As noted in the proposed rule, section regulations that have ‘‘substantial direct communications between EPA and 12(d) of the National Technology effects on the States, on the relationship tribal governments, EPA specifically Transfer and Advancement Act of 1995 between the national government and solicited comment on the proposed rule (NTTAA), Public Law 104–113, section the States, or on the distribution of from tribal officials. We did not receive 12(d) (15 U.S.C. 272 note), directs EPA power and responsibilities among the any comments on Executive Order to use voluntary consensus standards in various levels of government.’’ 13175. its regulatory activities unless to do so This final rule does not have would be inconsistent with applicable J. Executive Order 13211—Actions federalism implications. It will not have Concerning Regulations That law or otherwise impractical. Voluntary substantial direct effects on the States, consensus standards are technical Significantly Affect Energy Supply, on the relationship between the national Distribution, or Use standards (e.g., material specifications, government and the States, or on the test methods, sampling procedures, and distribution of power and This rule is not subject to Executive business practices) that are developed or responsibilities among the various Order 13211, ‘‘Actions Concerning adopted by voluntary consensus levels of government, as specified in Regulations That Significantly Affect standards bodies. The NTTAA directs Executive Order 13132. Today’s rule Energy Supply, Distribution, or Use’’ (66 EPA to provide Congress, through OMB, makes minor changes to the Consumer FR 28355, May 22, 2001), because it is explanations when the Agency decides Confidence Report Rule, the Public not a significant regulatory action under not to use available and applicable Notification Rule, and the Primacy Rule. Executive Order 12866. voluntary consensus standards. Thus, Executive Order 13132 does not This rule does not involve technical K. Congressional Review Act apply to this rule. standards. Therefore, EPA did not The Congressional Review Act, 5 consider the use of any voluntary Nevertheless, in the spirit of U.S.C. 801 et seq., as added by the Small consensus standards. Executive Order 13132, and consistent Business Regulatory Enforcement with EPA policy to promote Fairness Act of 1996, generally provides G. Executive Order 12898— communications between EPA and State that before a rule may take effect, the Environmental Justice and local governments, EPA specifically agency promulgating the rule must Executive Order 12898 establishes a solicited comment on the proposed rule submit a rule report, which includes a Federal policy for incorporating from State and local officials. We did copy of the rule, to each House of the Environmental Justice into Federal not receive any comments on Executive Congress and to the Comptroller General agency missions by directing agencies to Order 13132. of the United States. EPA will submit a identify and address disproportionately I. Executive Order 13175—Consultation report containing this rule and other high and adverse human health or and Coordination With Indian Tribal required information to the U.S. Senate, environmental effects of its programs, Governments the U.S. House of Representatives, and policies, and activities on minority and the Comptroller General of the United low-income populations. Today’s rule Executive Order 13175, entitled States prior to publication of the rule in makes minor changes to the Consumer ‘‘Consultation and Coordination with the Federal Register. A major rule Confidence Report Regulation, the Indian Tribal Governments’’ (65 FR cannot take effect until 60 days after it Public Notification Regulation, and the 67249, November 9, 2000), requires EPA is published in the Federal Register. Primacy Rule and does not alter the to develop an accountable process to This action is not a ‘‘major rule’’ as basic regulatory standards in those ensure ‘‘meaningful and timely input by defined by 5 U.S.C. 804(2). This rule regulations. The Agency considered tribal officials in the development of will be effective on December 27, 2002. Environmental Justice related issues regulatory policies that have tribal concerning the potential impacts of implications.’’ ‘‘Policies that have tribal L. Plain Language Directive Public Notification (PN) during implications’’ is defined in the Executive Order 12866 encourages development of the Public Notification Executive Order to include regulations agencies to write their rules in plain Rule and Consumer Confidence Report that have ‘‘substantial direct effects on language. Readable regulations help the (CCR) Rule. In the May 4, 2000, PN Rule one or more Indian tribes, on the public find requirements quickly and (65 FR 25981), EPA concluded that the relationship between the Federal understand them easily. They increase PN requirements would be beneficial to government and the Indian tribes, or on compliance, strengthen enforcement, low-income and minority communities. the distribution of power and and decrease mistakes, frustration, In the CCR Rule (63 FR 44511, August responsibilities between the Federal phone calls, appeals, and distrust of 19, 1998), EPA determined that government and Indian tribes.’’ government. EPA made every effort to provisions in that regulation would be This final rule does not have Tribal write this preamble and both the PN and beneficial to low-income and minority implications. It will not have substantial CCR Rules in a clear and concise communities, particularly the provision direct effects on Tribal governments, on manner. requiring a good faith effort to reach the relationship between the Federal M. Administrative Procedure Act non-bill-paying customers. government and Indian tribes, or on the distribution of power and Section 553 of the Administrative H. Executive Order 13132—Federalism responsibilities between the Federal Procedures Act, 5 U.S.C. 553(b)(B), Executive Order 13132, entitled government and Indian tribes, as provides that, when an agency for good ‘‘Federalism’’ (64 FR 43255, August 10, specified in Executive Order 13175. cause finds that notice and public 1999), requires EPA to develop an Today’s rule makes minor changes to procedure are impracticable, accountable process to ensure the Consumer Confidence Report Rule, unnecessary, or contrary to the public ‘‘meaningful and timely input by State the Public Notification Rule, and the interest, the agency may issue a rule
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without providing prior notice and an rule changes final without prior Authority: 42 U.S.C 300f, 300g–1, 300g–2, opportunity for public comment. EPA is proposal and opportunity for comment 300g–3, 300g–4, 300g–5, 300g–6, 300j–4, publishing a number of minor because these rule changes have no 300j–9, and 300j–11. substantive impact and merely correct corrections to appendix A of the CCR Subpart O—[Amended] Rule, 40 CFR part 141, subpart O, two informational CFR text or remove outdated text. Thus, notice and public of which were not originally included in 2. Appendix A to Subpart O is procedures are unnecessary. EPA finds the September 7, 2001 proposal. amended Appendix A lists ‘‘major sources in that this constitutes ‘‘good cause’’ under a. Under the heading ‘‘Inorganic drinking water’’ of regulated 5 U.S.C. 553(b)(B). contaminants’’ by adding in contaminants. EPA incorrectly listed List of Subjects alphabetical order entries for: ‘‘Bromate ‘‘by-product of drinking water 40 CFR Part 141 (ppb)’’, ‘‘Chloramines (ppm)’’, ‘‘Chlorine chlorination,’’ a specific method of (ppm)’’, ‘‘Chlorine dioxide (ppb)’’, and disinfection (63 FR 69410, December 16, Environmental protection, Chemicals, ‘‘Chlorite (ppm)’’. 1998), for two of these contaminants, Indians-lands, Intergovernmental b. Under the heading ‘‘Inorganic rather than using the more general term relations, Radiation protection, contaminants’’ by revising the entry for ‘‘by-product of drinking water Reporting and recordkeeping ‘‘Copper (ppm)’’. disinfection.’’ As a result, today’s rule requirements, Water supply. amends the table (Appendix A) to c. Under the heading ‘‘Synthetic 40 CFR Part 142 correct the ‘‘major sources’’ information organic contaminants including for bromate, chlorite, and total Administrative practice and pesticides and herbicides’’ by revising trihalomethanes (TTHMs). This will procedure, Chemicals, Indians-lands, entries for ‘‘Di(2-ethylhexyl) adipate make the listed ‘‘major sources’’ of these Radiation protection, Reporting and (ppb)’ and ‘‘Di(2-ethylhexyl) phthalate contaminants the same as haloacetic recordkeeping requirements, Water (ppb)’’. acids (HAA) in the table. Today’s rule supply. d. Under the heading ‘‘Volatile also deletes § 142.3(b)(3). This section Dated: November 20, 2002. organic contaminants’’ by removing entries for: ‘‘Bromate (ppb)’’, pertains to the Administrator’s former Christine Todd Whitman, ‘‘Chloramines (ppm)’’, ‘‘Chlorine authority to waive national primary Administrator. drinking water regulations (NPDWRs) (ppm)’’, ‘‘Chlorite (ppm)’’, and for Federally owned or operated public For the reasons set out in the ‘‘Chloride dioxide (ppb)’’. water systems. This authority was preamble, 40 CFR parts 141 and 142 are e. Under the heading ‘‘Volatile removed in the 1996 amendments to the amended as follows: organic contaminants’’ by revising the entry for ‘‘TTHMs [Total Safe Drinking Water Act (SDWA), and is PART 141—[AMENDED] no longer applicable. EPA has trihalomethanes] (ppb)’’. determined that for these corrections 1. The authority citation for part 141 The revisions and additions read as there is ‘‘good cause’’ for making these continues to read as follows: follows:
Appendix A to Subpart O of Part 141—Regulated Contaminants
To convert for Contaminant Traditional CCR, multiply MCL in CCR MCLG Major sources in drink- Health effects language (units) MCL in mg/L by units ing water
******* Inorganic contami- nants:
******* Bromate (ppb) .010 ...... 1000 ...... 10 ...... 0 ...... By-product of drinkig Some people who drink water disinfection. water of containing bromate in excess of the MCL over many years may have an increased risk of get- ting cancer.
******* Chloramines MRDL=4 ...... MRDL=4 ...... MRDLG=4 ...... Water additive used to Some people who use (ppm). control microbes. water containing chloramines well in excess of the MRDL could experience irri- tating effects to their eyes and nose. Some people who drink water con- taining chloramines well in excess of the MRDL could experi- ence stomach dis- comfort or anemia.
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To convert for Contaminant Traditional CCR, multiply MCL in CCR MCLG Major sources in drink- Health effects language (units) MCL in mg/L by units ing water
Chlorine (ppm) MRDL=4 ...... MRDL=4 ...... MRDLG=4 ...... Water additive used to Some people who use control microbes. water containing chlorine well in ex- cess of the MRDL could experience irri- tating effects to their eyes and nose. Some people who drink water con- taining chlorine well in excess of the MRDL could experi- ence stomach dis- comfort. Chlorine diox- MRDL=.8 ...... 1000 ...... MRDL=800 ...... MRDLG=800 ... Water additive used to Some infants and ide (ppb). control micorbes. young children who drink water chlorine dioxide in excess of the MRDL could ex- perience nervous system effects. Simi- lar effects may occur in fetuses of preg- nant women who drink water con- taining chlorine diox- ide in excess of the MRDL. Some people may experience ane- mia. Chlorite (ppm) 1 ...... 1 ...... 0.8 ...... By-product of drinking Some infants and water disinfection. young children who drink water con- taining chlorite in ex- cess of the MCL could experience nervous system ef- fects. Similar effects may occur in fetuses of pregnant women who drink water con- taining chlorite in ex- cess of the MCL. Some people may experience anemia.
******* Copper (ppm) AL=1.3 ...... AL=1.3 ...... 1.3 ...... Corrosion of household Copper is an essential plumbing systems; nutrient, but some Erosion of natural people who drink deposits. water containing cop- per in excess of the action level over a relatively short amount of time could experience gastro- intestinal distress. Some people who drink water con- taining copper in ex- cess of the action level over many years could suffer liver or kidney dam- age. People with Wil- son’s disease should consult their personal doctor.
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To convert for Contaminant Traditional CCR, multiply MCL in CCR MCLG Major sources in drink- Health effects language (units) MCL in mg/L by units ing water
******* Synthetic organic contaminants in- cluding pesticides and herbicides:
******* Di(2-ethylhexyl) .4 ...... 1000 ...... 400 ...... 400 ...... Discharge from chem- Some people who drink andipate ical factories. water containing di(2- (ppb). ethylhexyl) adipate well in excess of the MCL over many years could experi- ence toxic effects such as weight loss, liver enlargement or possible reproductive difficulties. Di(2-ethylhexyl) .006 ...... 1000 ...... 6 ...... 0 ...... Discharge from rubber Some people who drink phthalate and chemical fac- water containing di(2- (ppb). tories. ethylhexyl) phthalate well in excess of the MCL over many years may have problems with their liver, or experience reproductive difficul- ties, and may have an increased risk of getting cancer.
******* Volatile organic contaminants:
******* TTHMs [Total 0.10/.080 ...... 1000 ...... 100/80 ...... N/A ...... By-product of drinking Some people who drink trihalometha- water disinfection. water containing nes] (ppb). trihalomethanes in excess of the MCL over many years may experience problems with their liver, kidneys, or cen- tral nervous systems, and may have an in- creased risk of get- ting cancer.
Subpart Q—[Amended]
3. Appendix B to Subpart Q of Part 141 is amended under E. by revising entries 33 for ‘‘Di(2-ethylhexyl) adipate’’ and 34 for ‘‘Di(2-ethylhexyl) phthalate’’ to read as follows: Appendix B to Subpart Q of Part 141—Standard Health Effects Language for Public Notification
MCLG 1 MCL 2 Contaminant (units) (mg/l) (mg/l) Standard health effects language for public notification
*******
E. Synthetic Organic Chemicals (SOCs)
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MCLG 1 MCL 2 Contaminant (units) (mg/l) (mg/l) Standard health effects language for public notification
******* 33. Di(2-ethylhexyl) adipate ...... 0.4 0.4 Some people who drink water containing di(2-ethylhexyl) adipate well in excess of the MCL over many years could experience toxic effects such as weight loss, liver enlargement or possible repro- ductive difficulties. 34. Di(2-ethylhexyl) phthalate ...... Zero 0.006 Some people who drink water containing di(2-ethylhexyl) phthalate well in excess of the MCL over many years may have problems with their liver, or experience reproductive difficulties, and may have an increased risk of getting cancer.
* * * * * prevent exceeding the 2002 Pacific cod to support other anticipated groundfish Appendix B—Endnotes total allowable catch (TAC) apportioned fisheries. In accordance with 1. MCLG—Maximum contaminant level to vessels catching Pacific cod for § 679.20(d)(1)(iii), the Regional goal. processing by the inshore component of Administrator finds that this directed 2. MCL—Maximum contaminant level. the Western Regulatory Area of the fishing allowance will soon be reached. * * * * * GOA. Consequently, NMFS is prohibiting directed fishing for Pacific cod by DATES: Effective 1200 hrs, Alaska local vessels catching Pacific cod for PART 142—[AMENDED] time (A.l.t.), November 23, 2002, until processing by the inshore component in 2400 hrs, A.l.t., December 31, 2002. 4. The authority citation for part 142 the Western Regulatory Area of the continues to read as follows: FOR FURTHER INFORMATION CONTACT: GOA. Mary Furuness, 907–586–7228, or Maximum retainable bycatch amounts Authority: 42 U.S.C. 300f, 300g–1, 300g–2, [email protected]. 300g–3, 300g–4, 300g–5, 300g–6, 300j–4, may be found in the regulations at 300j9, and 300j–11. SUPPLEMENTARY INFORMATION: NMFS § 679.20(e) and (f). manages the groundfish fishery in the § 142.3 [Amended] Classification GOA exclusive economic zone 5. Section 142.3 is amended by according to the Fishery Management This action responds to the best removing paragraph (b)(3). Plan for Groundfish of the Gulf of available information recently obtained [FR Doc. 02–30117 Filed 11–26–02; 8:45 am] Alaska (FMP) prepared by the North from the fishery. The Assistant Administrator for Fisheries, NOAA, BILLING CODE 6560–50–P Pacific Fishery Management Council under authority of the Magnuson- finds good cause to waive the Stevens Fishery Conservation and requirement to provide prior notice and Management Act. Regulations governing opportunity for public comment DEPARTMENT OF COMMERCE fishing by U.S. vessels in accordance pursuant to the authority set forth at 5 National Oceanic and Atmospheric with the FMP appear at subpart H of 50 U.S.C. 553(b)(B) as such requirement is Administration CFR part 600 and 50 CFR part 679. contrary to the public interest. This The 2002 Pacific cod TAC requirement is contrary to the public 50 CFR Part 679 apportioned to vessels catching Pacific interest as it would delay the closure of cod for processing by the inshore the fishery, lead to exceeding the TAC, [Docket No. 011218304–1304–01; I.D. component in the Western Regulatory and therefore reduce the public’s ability 112202C] Area of the GOA is 15,164 metric tons to use and enjoy the fishery resource. (mt) as established by an emergency rule The Assistant Administrator for Fisheries of the Exclusive Economic implementing 2002 harvest fisheries, NOAA also finds good cause Zone Off Alaska; Pacific Cod by specifications and associated to waive the 30–day delay in the Vessels Catching Pacific Cod for management measures for the effective date of this action under 5 Processing by the Inshore Component groundfish fisheries off Alaska (67 FR U.S.C. 553(d)(3). This finding is based in the Western Regulatory Area of the 956, January 8, 2002 and 67 FR 34860, upon the reasons provided above for Gulf of Alaska May 16, 2002). waiver of prior notice and opportunity AGENCY: National Marine Fisheries In accordance with § 679.20(d)(1)(i), for public comment. Service (NMFS), National Oceanic and the Administrator, Alaska Region, This action is required by § 679.20 Atmospheric Administration (NOAA), NMFS (Regional Administrator), has and is exempt from review under Commerce. determined that the 2002 Pacific cod Executive Order 12866. ACTION: Closure. TAC apportioned to vessels catching Authority: 16 U.S.C. 1801 et seq. Pacific cod for processing by the inshore SUMMARY: NMFS is prohibiting directed component of the Western Regulatory Dated: November 22, 2002. fishing for Pacific cod by vessels Area of the GOA will be reached. Richard W. Surdi, catching Pacific cod for processing by Therefore, the Regional Administrator is Acting Director, Office of Sustainable the inshore component in the Western establishing a directed fishing Fisheries, National Marine Fisheries Service. Regulatory Area of the Gulf of Alaska allowance of 14,564 mt, and is setting [FR Doc. 02–30130 Filed 11–22–02; 2:51 pm] (GOA). This action is necessary to aside the remaining 600 mt as bycatch BILLING CODE 3510–22–S
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DEPARTMENT OF COMMERCE practicable, and shall minimize Alaska Board of Fisheries prohibited the mortality of bycatch where bycatch use of non-pelagic trawl gear in State National Oceanic and Atmospheric cannot be avoided (section 301(a)(9)). waters encompassing primary crab Administration More specific authority for this action habitat in 1990, and extended this is provided by section 303(b)(2) of the prohibition to all of the State waters of 50 CFR Part 679 Magnuson-Stevens Act. It states: ‘‘Any Cook Inlet in 1996. Recent surveys in fishery management plan which is [Docket No. 0205222128–2267–02; I.D. Cook Inlet in 1999 and 2001 indicate 050602B] prepared by any Council, or by the that Tanner crab stocks may be Secretary, with respect to any fishery, improving. However, these indications RIN 0648–AP79 may...designate zones where, and are highly uncertain at this time. periods when, fishing...shall be The State manages crab fisheries in Fisheries of the Exclusive Economic permitted only... with specified types the GOA EEZ in the absence of Federal Zone Off Alaska; Prohibition of Non- and quantities of fishing gear.’’ regulations. However, the Secretary pelagic Trawl Gear in Cook Inlet in the This final rule implements retains management authority for Gulf of Alaska Amendment 60 to the FMP which groundfish fisheries in this area. In June AGENCY: National Marine Fisheries prohibits the use of non-pelagic trawl 1998, the ADF&G submitted a proposal Service (NMFS), National Oceanic and gear in the exclusive economic zone to the Council to prohibit the use of (EEZ) of Cook Inlet in an area north of non-pelagic gear in the EEZ of Cook Atmospheric Administration (NOAA), ° ′ Commerce. a line from Cape Douglas (58 51.10 N. Inlet. The Council adopted this proposal lat.) to Point Adam (59°15.27′ N. lat.). ACTION: Final rule. as Amendment 60 to the FMP in Amendment 60 was adopted by the September 2000. SUMMARY: NMFS issues a final rule to Council in September 2000 with the specific goal of reducing potential Effects of Non-Pelagic Trawl Gear on implement Amendment 60 to the Crab Resources Fishery Management Plan for bycatch of crab in the EEZ of Cook Inlet Groundfish of the Gulf of Alaska Area in the GOA groundfish fishery. Non-pelagic trawl gear may catch crab (FMP). This amendment prohibits the A notice of availability of Amendment incidental to its target groundfish use of non-pelagic trawl gear in Cook 60 was published May 14, 2002 (67 FR species. The amount of crab caught and Inlet. This action is necessary to address 34424), which invited public comment discarded by non-pelagic trawl gear bycatch avoidance objectives in the on the amendment until July 15, 2002. varies depending on the abundance of Magnuson-Stevens Fishery No comments were received on this crab stocks, the type of trawl gear used, Conservation and Management Act document. NMFS approved the type of substrate on which the gear (Magnuson-Stevens Act), and is Amendment 60 on August 13, 2002. is fishing, and the target species of the intended to further the goals and Meanwhile, NMFS published a trawl gear. Non-pelagic trawl gear can objectives of the FMP. proposed rule that would implement cause direct mortality of crab through bycatch. Although numerous studies DATES: Effective December 27, 2002. Amendment 60 if it were approved. The proposed rule was published June 13, have been conducted on the impact of ADDRESSES: Copies of Amendment 60, 2002 (67 FR 40680), and invited public non-pelagic trawl gear on crab, the level the Environmental Assessment, comments until July 29, 2002. No public of bycatch mortality varies. NMFS has Regulatory Impact Review and Initial comments were received. restricted the use of non-pelagic trawl Regulatory Flexibility Analysis, and A detailed discussion of the status of gear in several areas of the GOA that Final Regulatory Flexibility Analysis crab and groundfish resources in Cook have historically supported crab (FRFA) prepared for this final rule may Inlet and the effect of this final rule may fisheries where crab bycatch is be obtained from the Alaska Region, be found in the preamble to the relatively high compared to other areas. NMFS, P.O. Box 21668, Juneau, AK proposed rule, published June 13, 2002 Additionally, non-pelagic trawl gear 99802–1668, Attn: Lori Gravel-Durall. (67 FR 40680). may alter the benthic substrate so that FOR FURTHER INFORMATION CONTACT: it is less favorable to crab survival. Glenn Merrill, (907) 586–7228 or email Status of Crab Resources in Cook Inlet Generally, studies on the potential at [email protected]. Historically, Cook Inlet supported impact of trawl gear on benthic habitats SUPPLEMENTARY INFORMATION: The significant Tanner crab (Chionoecetes indicate that non-pelagic trawl gear can domestic groundfish fisheries of the bairdi) and red king crab (Paralithodes damage sedentary megafauna (e.g., Gulf of Alaska (GOA) are managed by camtschaticus) fisheries. These crab sponges, corals), reduce the overall NMFS under the FMP. The FMP was fisheries occurred in State of Alaska diversity of sedentary organisms, prepared by the North Pacific Fishery (State) and Federal waters, and a smooth the surface of the ocean floor, Management Council (Council) under number of the most productive fishing and resuspend sediment near the ocean the authority of the Magnuson-Stevens grounds were within the Federal waters floor. No study has specifically assessed Act. Regulations implementing the FMP of Lower Cook Inlet. In 1982, the State the impacts of non-pelagic trawl gear on and governing the groundfish fisheries closed the red king crab fishery and it crab habitat and crab populations in of the GOA appear at 50 CFR, parts 600 has remained closed. The commercial Alaska. The potential impact of and 679. Tanner crab fishery of Lower Cook Inlet mortality due to gear interactions or peaked in the early 1970s then declined habitat modification on Tanner and red Background and Need for Action gradually until the fishery closed in king crab populations in Cook Inlet is This final rule complies with the 1995. These harvest patterns are similar unknown. Amendment 60 will Magnuson-Stevens Act, which to other Tanner and red king crab eliminate the potential adverse effects of emphasizes the importance of reducing fisheries in the GOA. non-pelagic trawl gear on the benthic bycatch to maintain sustainable In response to concerns by fishermen habitat of Cook Inlet. fisheries. National standard 9 of the and Alaska Department of Fish and Magnuson-Stevens Act mandates that Game (ADF&G) biologists about the Groundfish Fisheries in Cook Inlet conservation and management measures potential impacts of non-pelagic trawl Historically, non-pelagic trawl gear shall minimize bycatch, to the extent gear on crab bycatch and habitat, the has been little used in Cook Inlet.
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According to ADF&G data, from 1987– 13, 2002, through July 29, 2002 (67 FR of this possibility are not now 2000, only two vessels have used non- 40680). No public comments were foreseeable. pelagic trawl gear in Cook Inlet--one received. At present NMFS does not have the vessel in 1990, and another vessel in Classification full data necessary to determine the 1995. Both of these vessels harvested a extent to which this action may impact small amount of groundfish. No non- The Administrator, Alaska Region, small entities. pelagic trawling has occurred in Cook NMFS, determined that the FMP No new reporting or recordkeeping Inlet since 1995. amendment that this rule would requirements are imposed by this final Effect of This Action implement is consistent with the rule. This final rule has been national standards of the Magnuson- determined to be not significant for the This final rule prevents potential Stevens Act and other applicable laws. purposes of Executive Order 12866. adverse effects of non-pelagic trawl crab NMFS prepared an FRFA that bycatch on the population of Tanner describes the impact that this final rule List of Subjects in 50 CFR Part 679 and red king crab stocks in Cook Inlet. would have on small entities. The Although no crab fisheries currently Alaska, Fisheries, Recordkeeping and overall impact of this amendment on reporting requirements. exist in Cook Inlet and no recent non- small entities is minimal. Based on pelagic trawling has occurred, this historic trends in participation, few if Dated: November 21, 2002. action will prevent the development of any small entities, would be adversely John Oliver, a non-pelagic trawl fishery in an area affected by this action. One vessel used Deputy Assistant Administrator for that historically has supported a non-pelagic trawl gear in the EEZ of Operations, National Marine Fisheries productive crab fishery. Cook Inlet in 1990, and another vessel Service. Although non-pelagic trawling may in 1995, both of which presumably For the reasons discussed in the have an adverse effect on some qualify as small entities. This action preamble, 50 CFR part 679 is amended sedentary megafauna and certain types would not have any adverse impact on as follows: of substrate, the potential impacts of existing fishing vessels, given the non-pelagic trawl gear on crab habitat PART 679—FISHERIES OF THE and populations in Alaska are negligible use of non-pelagic gear in Cook Inlet currently, the availability of EXCLUSIVE ECONOMIC ZONE OFF unknown. ALASKA This action is a proactive measure to other more productive non-pelagic trawl fisheries in other areas of the GOA, pot limit potential crab bycatch from non- 1. The authority citation for 50 CFR and jig gear fisheries for Pacific cod in pelagic fisheries that may develop in the part 679 continues to read as follows: future. This final rule reduces the the State waters of Cook Inlet, and a pot and longline gear fishery for Pacific cod Authority: 16 U.S.C. 773 et seq, 1801 et potential bycatch of crab resources, seq., 3631 et seq., Title II of Division C, Pub. which currently are at relatively low in the EEZ of Cook Inlet. Numerous fishing opportunities exist for vessels L. 105–277; Sec. 3027, Pub. L. 106–31, 113 abundance, mirrors existing regulations Stat. 57; 16 U.S.C. 1540(f). in State waters of Cook Inlet, and using other legal types of fishing gear minimizes potential adverse effects of within Cook Inlet, or outside of Cook 2. In § 679.22, paragraph (b)(7) is non-pelagic trawl gear on the benthic Inlet if non-pelagic trawl gear is used. added to read as follows: habitat for crab and other groundfish Nearby fishery dependent communities § 679.22 Closures. stocks. This final rule implements these and recreational fishermen would not be (b) * * * benefits without adversely affecting any affected by this non-pelagic trawl ban. existing non-pelagic trawl fisheries. Likewise, this action is not expected (7) Cook Inlet. No person may use a to have any economic benefit for small non-pelagic trawl in waters of the EEZ Changes from the Proposed Rule entities. This action may improve the of Cook Inlet north of a line from Cape This final rule makes no changes from prospects for rebuilding crab stocks. Douglas (58°51.10′ N. lat.) to Point the proposed rule. NMFS invited public However, no Tanner or red king crab Adam (59°15.27′ N. lat.). comment on the proposed rule fishery exists currently in Cook Inlet. [FR Doc. 02–30133 Filed 11–26–02; 8:45 am] implementing Amendment 60 from June Therefore, potential economic benefits BILLING CODE 3510–22–S
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Proposed Rules Federal Register Vol. 67, No. 229
Wednesday, November 27, 2002
This section of the FEDERAL REGISTER reviewed by the Office of Management reasonable number of regulatory contains notices to the public of the proposed and Budget. alternatives and adopt the least costly, issuance of rules and regulations. The more cost-effective or least burdensome Executive Order 12372 purpose of these notices is to give interested alternative that achieves the objectives persons an opportunity to participate in the The FSP is listed in the Catalog of of the rule. rule making prior to the adoption of the final Federal Domestic Assistance under No. This proposed rule contains no rules. 10.551. For the reasons set forth in the Federal mandates under the regulatory final rule at 7 CFR part 3015, subpart V provisions of Title II of the UMRA for DEPARTMENT OF AGRICULTURE and related Notice (48 FR 29115, June State, local and tribal governments or 24, 1983), the FSP is excluded from the the private sector of $100 million or Food and Nutrition Service scope of Executive Order 12372 which more in any one year. Therefore, this requires intergovernmental consultation rule is not subject to the requirements 7 CFR Part 272 with State and local officials. of Sections 202 and 205 of the UMRA. Regulatory Flexibility Act Executive Order 13132, Federalism RIN 0584–AC75 This rule has been reviewed with Executive Order 13132 requires Food Stamp Program: Civil Rights regard to the requirements of the Federal agencies to consider the impact Data Collection Regulatory Flexibility Act of 1980 (5 of their regulatory actions on State and U.S.C. 601–612). Eric M. Bost, Under local governments. Where such actions AGENCY: Food and Nutrition Service, Secretary for Food, Nutrition, and have federalism implications, agencies USDA. Consumer Services, has certified that are directed to provide a statement for ACTION: Proposed rule. this rule will not have a significant inclusion in the preamble to the impact on a substantial number of small regulations describing the agency’s SUMMARY: The Food and Nutrition entities. This rule may have minimal considerations in terms of the three Service (FNS) is proposing to revise impact on some small entities. categories called for under section Food Stamp Program (FSP) regulations (6)(b)(2)(B) of Executive Order 13132. that cover the collection and reporting Executive Order 12988 of racial/ethnic data by State agencies This proposed rule has been reviewed (1) Prior Consultation With State on persons receiving benefits from the under Executive Order 12988, Civil Officials FSP. The proposed changes are to Justice Reform. This rule is intended to Prior to drafting this proposed rule, comply with new racial/ethnic data have preemptive effect with respect to we consulted with State and local collection standards issued by the Office any State or local laws, regulations or agencies at various times. Because the of Management and Budget (OMB) policies which conflict with its FSP is a State-administered, Federally while also providing regulatory provisions or which would otherwise funded program, our regional offices flexibility and reform for this area of the impede its full implementation. This have formal and informal discussions program regulations. rule is not intended to have retroactive with State and local officials on an DATES: Comments on this proposed effect unless so specified in the DATES ongoing basis regarding program rulemaking must be received by January section of the final rule. Prior to any implementation and policy issues. This 27, 2003, to be assured of consideration. judicial challenge to the provisions of arrangement allows State and local this proposed rule or the application of agencies to provide comments that form ADDRESSES: Comments should be its provisions, all applicable the basis for many discretionary submitted to Barbara Hallman, Chief, administrative procedures must be decisions in this and other Food Stamp State Administration Branch, Food and exhausted. rules. Further, we first requested Nutrition Service, USDA, 3101 Park comments on the proposed data Center Drive, Alexandria, Virginia Public Law 104–4 collection for the revised standards in 22302. Only written comments will be Title II of the Unfunded Mandates our November 30, 1999 Federal Register accepted. All written comments will be Reform Act of 1995 (UMRA), Pub. L. notice. Since then, State agency open for public inspection during 104–4, establishes requirements for comments have helped us make the rule regular business hours (8:30 am to 5 pm, Federal agencies to assess the effects of responsive to concerns presented by Monday through Friday) at 3101 Park their regulatory actions on State, local, State agencies. Center Drive, Alexandria, Virginia, and tribal governments and the private Room 820. sector. Under section 202 of the UMRA, (2) Nature of Concerns and the Need To FOR FURTHER INFORMATION CONTACT: FNS generally must prepare a written Issue This Rule Questions regarding this proposed statement, including a cost-benefit State agencies generally were rulemaking should be directed to Ms. analysis, for proposed and final rules concerned that the classification by Hallman at the above address or by with ‘‘Federal mandates’’ that may caseworkers of an applicant’s multiple telephone at (703) 305–2383. result in expenditures to State, local, or race heritage via visual observation of SUPPLEMENTARY INFORMATION: tribal governments, in the aggregate, or people who chose not to self-identify to the private sector, of $100 million or may not always be accurate. They were Executive Order 12866 more in any one year. When such a also concerned about the cost involved This rule has been determined to be statement is needed for a rule, section and time that will be allowed for States not significant for purposes of Executive 205 of the UMRA generally requires to make system changes to collect and Order 12866 and therefore has not been FNS to identify and consider a compile the data, to train workers, and
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to convert the current caseload. The would like more information on the Minority Affairs to satisfy the regulatory standardization of the data collection information collection aspects of the requirement for annual participation addresses another major State concern, rule, or would like to comment on the data. The Department includes this data the need to have the data collected in revised information collection burden, in an annual USDA Equal Opportunity the same way across other means-tested should refer to that notice for more Report. FNS compares the data to Federal programs. Specific comments information. Census data and uses the data to and policy questions submitted by State It is important to note that, as identify any minority participation agencies helped us identify issues that discussed in the following preamble, trends or disparities that need follow- needed to be clarified in the proposed OMB has received public comment on up. FNS also reviews the data prior to rule. Implementing the revised racial the revised data collection standards conducting State or local agency classification standards will allow data addressed in the Notice published in compliance reviews as well as in standardization across the Federal today’s Federal Register. Thus, in the selecting areas for review. Government. Notice, FNS is offering the public to Section 272.6(g) of the FSP rules comment only on its proposal for specifies the racial/ethnic categories as (3) Extent to Which We Meet Those implementing the new OMB standards, American Indian or Alaskan Native, Concerns not on the standards themselves. The Asian or Pacific Islander, black (not of FNS has considered the impact of the Notice addresses implementation of the Hispanic origin), Hispanic, and white proposed rule on State and local revised OMB standards for the FSP, the (not of Hispanic origin). These current agencies. This rule makes changes that Commodity Supplemental Food racial and ethnic categories, which have conform to the revised OMB standards Program (CSFP), and the Food been in place for more than 20 years, for the collection and reporting of racial Distribution Program on Indian conformed to classification standards ethnic data. Although the rule Reservations (FDPIR). These three set by OMB in Statistical Policy implementing the revised data programs have historically been Directive No. 15, Race and Ethnic collection standards will require approved under the same OMB approval Standards for Federal Statistics and eligibility workers to collect both race package. Administrative Reporting. and ethnicity on participating The revised data collection On October 30, 1997, OMB issued households, the information will requirements will be submitted to OMB revised standards for the classification standardize racial ethnic data collection for approval after comments are of Federal data on race and ethnicity in by States for the Federal Government received during the 60-day comment a notice in the Federal Register (62 FR and will permit more accurate data period. Until the OMB approves FNS’ 58782 et al.). They replace and collection on individuals who classify revised data collection requirements, supersede Statistical Policy Directive themselves as being of more than one State agencies would continue to use No. 15. All Federal agencies are race. It will show the increasing current forms (FNS 101 and FNS 191) required to comply with the revised diversity of our Nation over time. FNS approved under OMB Approval No. OMB standards. The OMB standards intends to allow States to obtain one 0584–0025. revise the racial and ethnic categories race per person when visual observation FNS is proposing this regulation and require that respondents be offered is used because the applicant chooses separate from the Notice because the the option of selecting one or more not to self-identify. While State agencies regulations governing the FSP contain racial designations. Only the FSP will have to change their application provisions that must be amended to regulations specify the old racial ethnic form and information system to collect, implement the revised standards, since data classifications that are being compile, and report data, train workers, they specifically identify the old racial/ replaced. We are now proposing to and convert the caseload, this is a one- ethnic classifications. The CSFP and amend the FSP regulations to comply time change. The 50 percent Federal FDPIR do not require similar regulatory with OMB policy. reimbursement by FNS helps defray half changes. the State’s cost to make the change for Data Collection by State Agencies the FSP and to collect, compile and Background Under the revised standards, there are report the data. The proposed rule Title VI of the Civil Rights Act of 1964 new categories for race and ethnicity. provides States ample time to prohibits discrimination on the basis of There are now five categories for race implement the revised data collection race, color, and national origin in and two categories for ethnicity. The standards and convert the existing programs receiving federal financial new racial categories are: American caseload to the revised data assistance. The Department of Justice Indian or Alaska Native, Asian, Black or requirements. In the proposed rule, we (DOJ) regulations, at Title 28 of the Code African American, Native Hawaiian or have addressed every concern submitted of Federal Regulations (CFR), Section Other Pacific Islander, or White. Under by State agencies regarding this 42.406(a), require all Federal agencies to the revised standards, the former ‘‘Asian provision. States will have the provide for the collection of racial and or Pacific Islander’’ category has been opportunity to comment on the ethnic information from applicants for separated into two categories, ‘‘Asian’’ implementation timeframe in the and beneficiaries of Federal assistance and ‘‘Native Hawaiian or Other Pacific proposed rule. FNS is not aware of any sufficient to permit effective Islander.’’ The revised standards allow case where the provisions of the rule enforcement of Title VI. Section 272.6(g) individuals to choose more than one would preempt State law. and (h) of the current program rules race to describe themselves. The revised require States to collect data on categories on ethnicity are: ‘‘Hispanic or Paperwork Reduction Act households by racial/ethnic data and to Latino’’, and ‘‘Not Hispanic or Latino.’’ In accordance with the Paperwork report the summary data to FNS. The State agency must include these Reduction Act of 1995, the proposed FNS collects this data in order to racial and ethnic categories on the State information collection requirements comply with the statutory mandates of agency’s application or data input contained in this rule are being made the Civil Rights Act of 1964, DOJ screen. available for public comment in a regulations, and USDA regulations on To ensure data quality, the State Notice published elsewhere in this issue nondiscrimination. The data are agency’s application or data input of the Federal Register. Readers who provided to the Department’s Office of screen must use separate questions for
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collecting ethnicity and race, with changes in the Federal policy and FNS Civil Rights Act. The data on the ethnicity requested first. Applicants data collection and reporting number of household contacts of more must be allowed to identify themselves procedures. Further, since the than one race will help us track changes as being of more than one race by Paperwork Reduction Act requires the in our Nation’s diversity over time in choosing multiple racial categories. publication of a Federal Register notice the program. The more detailed data on Instructions on the application should for comment if a Federal reporting form the Hispanic data by race would allow instruct applicants to ‘‘Mark one or change is proposed, comments on any us to monitor changes in racial/ethnic more * * *’’ or ‘‘Select one or more future changes in racial designations for response patterns over time. We are very ***.’’ The State agency must develop data reporting would be obtained and interested in State agency comment on alternative means of collecting racial considered in conjunction with any the proposed data collection and and ethnic data on households, such as proposed form changes. Accordingly, reporting and on the reporting burden by observation during the interview the Department proposes to revise estimate per State agency. We are also when the information is not provided § 272.6(g) to drop the specific racial interested in any cost estimates from voluntarily by the household on the category references and to replace that State agencies for making the change to application form. text with a more general requirement in their information systems to comply The changes in the standards deal the regulations that will be with the new proposed reporting. with the way in which State agencies automatically linked to the Federal We are proposing to revise § 272.6(h) collect racial/ethnic data and the racial/ policy. However, the gist of the policy to provide that State agencies must ethnic classifications. However, we has been briefly explained in this report the racial/ethnic data on forms or wish to point out that some things have preamble. FNS will issue formats provided by FNS. This change not changed. The current policy that the supplementary guidance in the form of is intended to speed the movement from racial categories are not to be used for an implementing memorandum to State paper reporting forms to electronic determining the eligibility of population agencies once the final rule is published reporting format. It also complies with groups for participation in the program that will conform to the revised the intent to move to electronic would continue. The application form standards. To capture data under the reporting of this information as soon as would continue to indicate that (1) the new standards, State information our system modifications will allow. racial and ethnic information is systems will need to be changed. Implementation voluntary, (2) that it will not affect eligibility or the level of benefits, and Reporting to FNS As explained previously in this (3) that the reason for the information is The current regulations at § 272.6(h) preamble, until comment is received on to assure that program benefits are specify that the State agency shall report these proposed regulations and approval distributed without regard to race, color, the racial/ethnic data on participating for the revised forms are approved by or national origin. households on forms provided by FNS. OMB, State agencies would continue Currently, § 272.6(g) lists the old The above changes will necessitate a with the current data collection racial/ethnic categories, specifies the form revision. Although the Department requirements for the fiscal year 2003 method of data collection, and specifies is not specifically describing the form reporting period. FNS anticipates the related requirements for application changes in the regulatory text of publication of the final rule early in forms. We do not believe it is § 272.6(h), the revision of the FNS 2003. In the interim, FNS would accept appropriate to continue to list in the reporting form will impact the way State comments on this rule and on the new regulations the specific individual racial agencies must compile data in order to reporting requirements through the and ethnic categories. Instead the report it to us. FNS has discussed the Notice published elsewhere in this issue proposed regulations specify that State changes in a Federal Register notice of the Federal Register. FNS recognizes agencies shall collect the data ‘‘as dated November 30, 1999, in October that State and local agencies will need specified by FNS’’. Racial designations 2000 and 2001 supplementary guidance time to modify their application forms, and the manner of racial/ethnic data issued to State agencies, and again in data input screens, and information collection are based on Federal policy this proposed rule. systems in order to begin capturing and which is issued by OMB and which all To comply with the new standards, tabulating data. It is crucial for FNS’ Federal agencies must follow. Since the State information systems will need to information system that all State Federal policy was based on public be changed. We are proposing to require agencies implement the revised comment, it would involve a State agencies to report the number of reporting format at the same time. duplication of effort for Federal household contacts who selected (or The Forms FNS 101 and 191 currently agencies, in turn, to codify and were observed to be under) only one in use would remain in effect for the implement the revised standards by racial category, separately for each of fiscal year 2003 reporting period. State further rulemaking with more public the five racial categories, and to provide agencies would be required to comment on the same issue. The intent a count of household contacts who implement the revised FNS 191 for the is to pass along revisions to the State selected more than one race for various report month of April 2004. For the FNS agencies on a more timely basis. As part multiple-race categories. The State 101, State agencies would be required to of this streamlining, FNS will collect agencies must report the number of implement for the report month of July comments in the future through household contacts who identified 2004. comments to proposed notices on the themselves as being Hispanic or Latino data collection and reporting. FNS by racial category. Confidential or List of Subjects in 7 CFR Part 272 guidance will be issued to provide identifying information, such as names Alaska, Civil rights, Food stamps, clarification as necessary appropriate to of participants, are not being reported to Grant programs-social programs, the program in order to comply with the us under this reporting mechanism. reporting and recordkeeping Federal policy. We would continue to use the requirements. By being less detailed in program summary data to evaluate conformance Accordingly, 7 CFR part 272 is regulations, we are streamlining the with the Civil Rights Act and to provide proposed to be amended as follows: Federal policy process, while the data to other Federal agencies upon 1. The authority citation for part 272 maintaining flexibility for any future request for their missions related to the continues to read as follows:
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Authority: 7 U.S.C. 2011–2036. Administrator. The Administrator help you, please call (202) 690–2817 would list a slaughtering establishment before coming. PART 272—REQUIREMENTS FOR after determining that the establishment APHIS documents published in the PARTICIPATING STATE AGENCIES provides the type of space and facilities Federal Register, and related 2. In § 272.6, paragraphs (g) and (h) specified by the regulations to safely information, including the names of are revised to read as follows: collect blood and tissue samples for organizations and individuals who have disease testing. The actual testing of commented on APHIS dockets, are § 272.6 Nondiscrimination compliance. samples could occur either at the available on the Internet at http:// * * * * * establishment or at another location, as www.aphis.usda.gov/ppd/rad/ (g) Data collection. The State agency determined by the Administrator. webrepor.html. must obtain racial and ethnic data on Alternatively, the Administrator could FOR FURTHER INFORMATION CONTACT: Dr. participating households in the manner list a slaughtering establishment that Adam Grow, National Animal Health specified by FNS. The application form does not supply such space and Programs, VS, APHIS, 4700 River Road must clearly indicate that the facilities if the Administrator Unit 43, Riverdale, MD 20737–1231; information is voluntary, that it will not determines that it is not necessary to (301) 734–4363. affect the eligibility or the level of conduct testing of animals slaughtered SUPPLEMENTARY INFORMATION: benefits, and that the reason for the at the establishment because the data information is to assure that program collected through such testing would Background benefits are distributed without regard not significantly assist APHIS disease The Animal and Plant Health to race, color, or national origin. The surveillance programs. Inspection Service (APHIS), U.S. State agency must develop alternative This collection of blood and tissue Department of Agriculture (USDA), has means of collecting the ethnic and racial samples would enable us to identify many programs to protect the health of data on households, such as by animals at slaughter that are affected by livestock and poultry in the United observation during the interview, when various communicable diseases of States. These include programs to the information is not provided concern. This change would affect prevent endemic diseases and pests voluntarily by the household on the persons moving livestock or poultry from spreading within the United States application form. interstate for slaughter, slaughtering and programs to prevent the (h) Reports. As required by FNS, the plants that receive animals in interstate introduction of foreign animal diseases, State agency must report the racial and commerce, and, in cases where test- as well as programs to control or ethnic data on participating household positive animals are successfully traced eradicate certain animal diseases from contacts on forms or formats provided back to their herd or flock of origin, the the United States. by FNS. owners of such herds or flocks. The Regulations governing the interstate Dated: November 22, 2002. long-term effects of this change would movement of animals for the purpose of Roberto Salazar, be to improve surveillance programs for preventing the dissemination of animal Administrator. animal diseases and to contribute to the diseases within the United States are [FR Doc. 02–30112 Filed 11–26–02; 8:45 am] eventual control or eradication of such contained in 9 CFR, subchapter C— BILLING CODE 3410–30–P diseases. ‘‘Interstate Transportation of Animals DATES: We will consider all comments (Including Poultry) and Animal that we receive on or before January 27, Products.’’ DEPARTMENT OF AGRICULTURE 2003. The legal authority for USDA to conduct testing was recently restated in Animal and Plant Health Inspection ADDRESSES: You may submit comments the Animal Health Protection Act of Service by postal mail/commercial delivery or 2002 (Subtitle E of the Farm Security by e-mail. If you use postal mail/ and Rural Investment Act of 2002, 9 CFR Part 71 commercial delivery, please send four Public Law 107–171). Section 10409 copies of your comment (an original and [Docket No. 99–017–1] states that the Secretary of Agriculture three copies) to: Docket No. 99–017–1, ‘‘may carry out operations and measures RIN 0579–AB13 Regulatory Analysis and Development, to detect, control, or eradicate any pest PPD, APHIS, Station 3C71, 4700 River or disease of livestock (including the Blood and Tissue Collection at Road Unit 118, Riverdale, MD 20737– drawing of blood and diagnostic testing Slaughtering Establishments 1231. Please state that your comment of animals), including animals at a refers to Docket No. 99–017–1. If you AGENCY: Animal and Plant Health slaughterhouse, stockyard, or other Inspection Service, USDA. use e-mail, address your comment to point of concentration.’’ [email protected]. Your ACTION: Proposed rule. comment must be contained in the body Proposed Changes to the Regulations SUMMARY: We are proposing to establish of your message; do not send attached We are proposing to amend the requirements for the collection of blood files. Please include your name and regulations in subchapter C, part 71, and tissue samples from livestock address in your message and ‘‘Docket ‘‘General Provisions,’’ to provide for the (horses, cattle, bison, captive cervids, No. 99–017–1’’ on the subject line. collection of blood and tissue samples sheep and goats, swine, and other farm You may read any comments that we from livestock (horses, cattle, bison, animals) and poultry at slaughtering receive on this docket in our reading captive cervids, sheep and goats, swine, establishments when it is necessary for room. The reading room is located in and other farmed animals) and poultry disease surveillance. We also propose room 1141 of the USDA South Building, at slaughter. We propose to require that that any person who moves or causes 14th Street and Independence Avenue persons moving livestock and poultry the movement of livestock or poultry SW., Washington, DC. Normal reading interstate for slaughter may only move interstate for slaughter may only move room hours are 8 a.m. to 4:30 p.m., the animals to slaughtering the animals to a slaughtering Monday through Friday, except establishments that have been listed by establishment that has been listed by the holidays. To be sure someone is there to the Administrator of APHIS. We do not
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propose to collect samples from all ensure a valid representative sample for that the requirements of the rule would livestock or poultry at slaughter, but to disease surveillance. apply to both persons transporting collect samples whenever we believe it We are particularly seeking comments livestock and poultry and persons who is necessary for effective surveillance. on the standards APHIS should apply in cause the livestock or poultry to be Some establishments slaughter identifying the plants where APHIS moved. This definition, which is relatively few animals, or process should conduct sampling. Our goal is to identical to one used in part 78 of our animals that are not susceptible to collect samples at a representative regulations, would read ‘‘Shipped, testing (e.g., sheep and goats that are too number of plants in each region, so that transported, delivered, or otherwise young to test for scrapie), or receive sample testing will provide a aided, induced, or caused to be moved.’’ animals from sources for which we statistically valid nationwide profile of We propose that the Administrator already have sufficient epidemiological diseased animals sent to slaughter may list slaughtering establishments data, and it would not substantially aid plants. Because sample collection either when sample collection and our surveillance to require testing at imposes some financial and operational testing is not needed at them to meet burden on plants, we wish to keep the APHIS epidemiological surveillance these establishments. Therefore, the number of plants sampled down to the needs, or when testing is needed and Administrator would list some minimum number required to provide the establishment meets the following establishments to receive livestock or the data we need. Therefore, we urge standards with regard to sample poultry without conducting testing at commenters to address how APHIS collection activities. The slaughtering those establishments. For should select plants for sampling; e.g., plant would have to allow APHIS, FSIS, establishments where it is necessary to their size, fraction of the regional or APHIS contractors to collect and conduct testing, the Administrator market, proximity to other sampled record any individual animal would list the establishment only if it plants, source of animals, and other identification on animals, retain any allows APHIS, FSIS, or APHIS characteristics. identification devices on or in the contractors to collect blood and tissue The provisions regarding the animals (backtags, electronic implants, samples from animals at the collection of blood and tissue samples etc.), and take tissue and blood samples establishment. To be listed, a would be set out in a new § 71.21, from animals at the facility. slaughtering establishment where ‘‘Tissue and blood testing at slaughter.’’ Slaughtering plants must allow samples testing is required would have to grant In § 71.1, we would amend the to be collected at no cost to the United access to the personnel conducting the definition of livestock so that it includes States; that is, they would not be able tests and provide certain space and horses, cattle, bison, captive cervids, to charge the government for access to equipment necessary to collect and sheep and goats, swine, and other collect samples, or for the value of the process test samples. Slaughtering farmed animals. (We would not include samples collected. These are the basic establishments that are not listed could non-captive cervids in the definition tasks that need to be performed to test not receive livestock moving in because most such animals that go to the animals for disease and collect the interstate commerce. slaughter plants are brought there by information that may be needed to trace In conjunction with this rulemaking, hunters, to a local slaughter plant, and back the animals. do not thereafter move interstate in APHIS will develop a list of In terms of the specific space for commerce. Also, the hunters generally slaughtering establishments. sample collection activities, the gut and clean the animals in the field, Establishments will not have to actively slaughtering plant would have to space reducing the opportunity to collect where samples could be safely and contact APHIS in order to be placed on useful samples.) efficiently collected. The plant would the list; APHIS will contact the plants We would also define recognized have to provide office and sample where we intend to collect samples, and slaughtering establishment to be ‘‘Any collection space, including necessary work with them to meet the slaughtering establishment operating furnishings, light, heat, and janitor requirements for listing. APHIS will list under the provisions of the Federal service, rent free, for use by APHIS, all plants that meet the qualifications, Meat Inspection Act (21 U.S.C. 601 et FSIS, or APHIS contractors collecting and will also list those plants at which seq.) or a State meat inspection act. A samples for blood and tissue testing. At APHIS has determined sample list of recognized slaughtering the discretion of the Administrator, collection is not needed. There are 1,341 establishments in any State may be small plants would not have to furnish meat packing firms included in the obtained from an APHIS representative, facilities if adequate facilities exist in a North American Industry Classification the State animal health official, or a nearby convenient location. The space System (NAICS) code of 311611, of State representative.’’ This definition is provided by the slaughtering which 1,260 are small businesses. Many consistent with other APHIS and FSIS establishment would be subject to the of these small businesses are local regulations addressing slaughtering approval of the Administrator. In many operations that do not receive animals plants. We need this defined term as cases the facilities that establishments moving interstate, and thus do not need part of the explanation in § 71.21 of already provide for use by FSIS will also to be listed. We expect to conduct what types of establishments must be suffice for additional sample collection sampling at roughly 50 to 100 of the listed by the Administrator for interstate conducted under this proposed rule. 1341 meat packing firms included in movement. Listing applies to both When approving the space provided NAICS 311611. Since some of these recognized slaughtering establishments, by a slaughtering plant in which testing firms have multiple plants, testing could which are under mandatory inspection is required, the Administrator would occur at several hundred plants. In under the Federal Meat Inspection Act, consider whether the space: almost all cases, some testing already and other specialty plants (e.g., for 1. Is conveniently located, properly occurs at these plants; this rule would cervids and bison) that undergo ventilated, and provided with lockers allow us to increase the level of testing voluntary inspection under the suitable for the protection and storage of as needed. While we will focus provisions of the Agricultural Marketing supplies; primarily on testing at the plants of Act (12 U.S.C. 1141 et seq.)). 2. Has sufficient light to be adequate large business firms, we will also test at We would also add a definition of for proper conduct of sample collection some small plants, as necessary to move (moved) to § 71.1, to make it clear and processing;
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3. Includes racks, receptacles, or other may be the contractor employed by sheep old enough to test for scrapie, so suitable devices for retaining such parts APHIS to collect samples. operations at plants that slaughter only as the head, glands, and viscera, and all The difficulty and expense of lambs would not be significantly parts and blood to be collected, until collecting the samples would depend on affected. Also, APHIS would be able to after the post-mortem examination is the type of testing. The most difficult modify its sampling to some degree to completed; sampling involves the collection of accommodate special needs at 4. Includes tables, benches, and other tissue from sheep to test for scrapie. We individual plants, e.g., to avoid equipment on which sample collection may wish to test any slaughtered sheep damaging the heads of sheep when there and processing are to be performed, of or goat after we determine that it has is a contract to sell the heads as meat, such design, material, and construction sufficient animal identification to trace or to suspend sampling when plant as to enable sample collection and it back to its flock of origin. Collecting renovations are underway. processing in a ready, efficient, and the sample involves removing the clean manner; brainstem from an animal through the Background on the Scope and Purpose 5. Has adequate arrangements, spinal opening and sending it to a of Sample Collection in APHIS including liquid soap and cleansers, for laboratory for histopathological Programs cleansing and disinfecting hands, procedures, and may involve collecting As described in the preceding section, dissection tools, floors, and other other tissue or blood samples as well, the essential changes proposed by this articles and places that may be depending on the tests in use at the rule are a requirement that persons contaminated by diseased carcasses or time. moving livestock and poultry interstate otherwise; and Collecting samples to test for for slaughter may only move the 6. Has adequate facilities, including tuberculosis is also difficult, involving animals to slaughtering establishments denaturing materials, for the proper necropsy to collect multiple tissue that have been listed by the disposal of tissue, blood, and other samples. Collecting samples to test for Administrator of APHIS, and a waste generated during test sample brucellosis and pseudorabies is a requirement that slaughtering collection. relatively simple matter of collecting establishments where we choose to We believe the space provided by the blood samples. collect samples must grant access to the slaughtering plant should have these We realize that collection of tissue personnel conducting the tests and and blood samples at slaughter may characteristics in order to allow APHIS, provide certain space and equipment affect slaughtering plant operations by FSIS, or APHIS contractor personnel to necessary to collect and process test disrupting or slowing down the work. collect and process test samples in an samples. This rule would therefore While many samples can be collected accurate, efficient, and safe manner. chiefly affect slaughtering We also propose that the without slowing down production lines, establishments that must allow us to Administrator or his or her designee there would be occasional slowdowns. collect samples. would give the owner of a slaughtering We also realize that plants would have establishment notice as to when we to set aside, or make available, adequate This section provides additional would be collecting test samples at the and suitable space for us to work. This background to help interested persons plant. The Administrator would give the could be inconvenient and involve understand the role of sampling and operator of the slaughtering additional expense. APHIS intends to be testing in various APHIS animal disease establishment as much advance notice as flexible as possible in adapting the programs, and the difficulties and costs as possible. However, the actual amount proposed requirements to the needs of involved in different types of sample of notice would depend on the specific individual slaughtering plants. When it collection and testing. situation. is possible, we would share space and Testing animals’ blood or tissue for We also propose to include language facilities at the plant that are already diseases is an important component of allowing the Administrator to deny or devoted to other Federal or State APHIS regulations. Although the withdraw listing of a slaughtering inspection activities, and when this is regulations in subchapter C do not establishment if the establishment does not possible, we would work with require testing for most animals moving not comply with the requirements of the slaughtering plant management to interstate, testing with negative results regulations. This language is essentially minimize their expenses. The proposed is often one of several options for the same as existing language in § 71.20 rule would also allow sample qualifying an animal for interstate concerning denial and withdrawal of processing to occur outside the movement. In some programs (e.g., approval of livestock facilities. slaughtering plant in some cases; e.g., at brucellosis), APHIS regulations also some small sheep plants, it may be require that certain animals and herds Effects on Slaughter Plants Where possible for APHIS to simply collect the be tested, including at slaughter, in APHIS Conducts Sampling heads of animals to be tested and take order for a State or area to achieve or Under our proposal, sample collection them to a nearby laboratory or other maintain a particular disease status. At would be done on the premises of the facility for processing. other times, voluntary testing allows the slaughtering plant. Full testing of Also, we are not proposing to test all owners of animals to achieve a market samples might sometimes occur on the slaughtered livestock all the time. We advantage by certifying their animals premises, although APHIS often will believe our more limited proposal—to free of particular diseases. elect to send the samples offsite for test when we believe it is necessary and In support of both mandatory and testing. APHIS employees, FSIS to test only those animals we believe are voluntary testing programs, APHIS employees, or a contractor hired by necessary, based on epidemiological cooperates with State and local APHIS would collect the samples. There information—is justified because it governments, as well as individuals and would be no personnel cost to would substantially enhance the control businesses. In some situations, APHIS slaughtering plants, although they of livestock diseases, particularly personnel collect blood or tissue would incur some expenses in brucellosis, tuberculosis, scrapie, and samples to be tested immediately or sent providing the space and equipment pseudorabies, in the United States. We to laboratories for testing. In other used by APHIS, FSIS, or contractors. In anticipate that the sampling of sheep situations, accredited veterinarians, some cases, the slaughtering plant itself would occur only at plants that kill State or local veterinary officials, or
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other individuals may collect the every disease for which APHIS may livestock than all other livestock samples. want to test animals at slaughter, but is diseases combined. APHIS uses epidemiological data intended to identify the benefits of such While cooperation with USDA’s Food from many mandatory and voluntary testing with regard to certain diseases of Safety and Inspection Service (FSIS) tests to assess the prevalence of disease major concern, and to identify where and slaughtering plants already allows and to identify sources of diseases. testing might help us determine whether us to perform a large amount of When testing is coupled with animal other diseases have a greater effect than tuberculosis testing, this proposal identification, we can trace a positive is currently understood. would allow us to perform additional animal’s movements and identify other There is no simple answer to the testing of animals at slaughtering plants animals it may have been in contact question ‘‘How much slaughter testing if and when we determine such testing with that were exposed to the disease. is needed for proper surveillance of a is necessary to improve our knowledge We call this process ‘‘traceback.’’ We disease?’’ If the animals continually of the distribution of tuberculosis. The can then test source herds or flocks and passing through slaughter plants data gained through additional testing exposed animals and take other constituted a true random sample of would improve our ability to administer measures to ensure that the disease does animal populations in the United States, national tuberculosis programs and to not spread. it would be possible to identify a design effective program improvements. Testing at slaughter is extremely statistically valid number of animals to Because the activities of FSIS inspectors important. Not only is it the last point test, in order to detect animal diseases address primarily human food safety in normal channels for animal in U.S. animal populations at whatever risks rather than animal disease risks, movement when we can test an animal, prevalence we choose, with whatever APHIS has never been able to rely but for some diseases for which there is confidence we choose. However, the completely on sample collection by no validated live-animal test, like animals passing through a slaughter FSIS inspectors to provide all the bovine spongiform encephalopathy or plant at any given time do not constitute samples needed for a statistically valid chronic wasting disease, it is the only a random sample of the national evaluation of the animal disease profile time we can conduct routine diagnostic population. The desirable level of of animals passing through a slaughter testing. For other diseases, such as testing at slaughter is also affected by plant. Testing by APHIS rather than tuberculosis in cattle and bison, the amount of data already available FSIS will become increasingly brucellosis in cattle, bison, and swine, from non-slaughter testing (e.g., federal important as FSIS continues to and exotic Newcastle disease in poultry, and State herd and flock testing, and implement its Hazard Analysis Critical testing at slaughter provides a cost- voluntary testing by animal owners). Control Point (HACCP) approach to food effective means of monitoring the extent Finally, the amount of slaughter testing safety at slaughter plants. The critical of the diseases and detecting areas required for proper surveillance will where the diseases are highly prevalent. control points implemented by vary with increasing or decreasing APHIS has not been able to use slaughter plants to ensure food safety voluntary cooperation by slaughter national animal inventories each year. and verified by FSIS do not necessarily plants to obtain all the samples it needs For informational purposes, this provide the sample collection and for optimal disease surveillance. For document projects certain levels of testing APHIS needs for animal disease instance, APHIS has been allowed to sample collection at slaughter that we surveillance purposes. Therefore, collect some samples in 45 of the 50 currently believe are required for APHIS needs the proposed authority to major swine processing plants, but we optimal surveillance of various animal design and perform its own testing at need samples from all 50 plants to diseases. These estimates of the number slaughter plants. construct a valid model of swine disease of samples required take into account Brucellosis incidence. Also, when APHIS collectors the factors mentioned above—biases in have gone into plants to replace the composition of animals at slaughter Brucellosis is a contagious disease voluntary collection by the slaughtering plants that make them non-random affecting animals and humans, caused plants, the number of samples collected samples; availability of test data from by bacteria of the genus Brucella. In its has increased two fold, indicating that non-slaughter testing for various principal animal hosts, brucellosis is voluntary collection has not been diseases; and varying animal characterized by abortion and impaired effective. populations. fertility. The brucellosis regulations, APHIS has held substantial To illustrate the requirements of contained in 9 CFR part 78, prescribe discussions with animal industry APHIS sample collection programs, the conditions for the interstate movement groups to explore options for collecting following discussion examines of cattle, bison, and swine, and provide all the samples we need for optimal programs for several major animal a system for classifying States or disease surveillance. Most recently, we diseases: tuberculosis, brucellosis, portions of States (areas) according to participated in a National Dialogue on pseudorabies, and scrapie. the rate of Brucella abortus infection present and the general effectiveness of Animal Disease Surveillance on March Tuberculosis 12, 2002, that was sponsored by the the brucellosis control and eradication National Institute for Animal Bovine tuberculosis is a contagious, program conducted in the State or area. Agriculture in Arlington, VA. We also infectious, and communicable disease This proposal would allow us to participated in a follow-up conference caused by Mycobacterium bovis. It perform additional testing of animals for call for interested industry members on affects cattle, bison, deer, elk, goats, and brucellosis at slaughtering plants if and April 9, 2002. The approach of this other species, including humans. when we determine such testing is proposed rule has taken those Bovine tuberculosis in infected animals necessary to improve our knowledge of discussions and the concerns of and humans manifests itself in lesions the distribution of brucellosis. The data industry members into account. of the lung, bone, and other body parts, gained through additional testing would The reasons why slaughter testing is causes weight loss and general improve our ability to properly classify important in the control of various debilitation, and can be fatal. At the herds and States, to administer national diseases are discussed below. This beginning of this century, bovine brucellosis programs, and to design discussion does not attempt to identify tuberculosis caused more losses of effective program improvements.
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Under existing programs to detect scrapie and is an important and diseases of emerging importance. In brucellosis, two primary surveillance necessary part of the broader efforts to addition, if bovine spongiform procedures are used to locate infection improve scrapie control. encephalopathy (BSE) or other without having to test each animal in Currently, slaughter testing is not transmissible spongiform every herd. Milk from dairy herds is required for sheep and goats. There is a encephalopathies (TSE’s) ever become checked two to four times a year by small amount of voluntary testing of established in the United States, testing a small sample obtained from sheep and goats at slaughter, where we slaughter testing would be essential for creameries or farm milk tanks for have made special arrangements with their control. It should be noted that evidence of brucellosis, and some slaughtering establishments. However, extensive testing for TSE’s, should it animals from bison herds and cattle this is not sufficient because so few ever be needed, would raise the overall herds that do not produce milk for sale sheep are tested at slaughter. Although cost of our testing program are tested for brucellosis at livestock we do not believe it is necessary to test considerably, since these tests require markets or at slaughter. While these all sheep and goats at slaughter, we necropsy and tissue collection rather surveillance programs are valuable in believe that additional animals must be than a simple blood sample. monitoring brucellosis, the availability tested at slaughter if we are to have an Executive Order 12866 and Regulatory of slaughter testing under this proposal effective surveillance program and, in Flexibility Act is critical to provide complete coverage turn, control and eventually eradicate in the data provided by current the disease. This proposed rule has been reviewed surveillance efforts. under Executive Order 12866. The rule Other Diseases has been determined to be significant Pseudorabies There are many other animal diseases for the purposes of Executive Order Pseudorabies is a contagious, that APHIS may test for at slaughter to 12866 and, therefore, has been reviewed infectious, and communicable disease of gain better data about their extent and by the Office of Management and livestock, primarily swine, and other their effects on productivity. For Budget. The economic analysis prepared animals. The disease is caused by a example, The National Poultry for this proposed rule is set out below. herpes virus. Our regulations in 9 CFR Improvement Plan (NPIP), described in It includes both a cost-benefit analysis part 85 govern the interstate movement 9 CFR parts 145 and 147, is a as required by Executive Order 12866 of swine and other livestock in order to cooperative Federal-State-industry and an analysis of the economic effects help prevent the spread of pseudorabies. mechanism that includes slaughter on small entities as required by the A great many feeder pigs and butcher testing to control certain poultry Regulatory Flexibility Act. hogs move to slaughter each year, and diseases, particularly those caused by APHIS is proposing to require persons such swine are not currently required to various species of Salmonella, moving horses, cattle, bison, sheep, be tested for pseudorabies. This Mycoplasma gallisepticum, M. synoviae, swine, cervids, or poultry interstate to proposal would allow APHIS to test M. meleagridis, and avian influenza slaughter to move them only to such swine at slaughter if we find it viruses. slaughtering establishments that have necessary to do so to improve our Equine infectious anemia (EIA), also been listed by the Administrator. The knowledge of the prevalence and known as swamp fever, is a viral disease Administrator would list an distribution of pseudorabies. Such of equines that is characterized by establishment after determining that it is testing could also help us assess the sudden fever, swelling of the legs and not necessary to conduct testing there, success of the recent indemnification lower parts of the body, severe weight or determining that testing is necessary program to reduce the incidence of loss, and anemia. Approximately 1 and that the establishment provides pseudorabies by destroying affected million live horses are tested for EIA access and facilities for the collection of animals. each year, and approximately 0.2 tissue and blood samples from the percent of these test positive. However, animals slaughtered. We are proposing Scrapie no comprehensive testing for EIA is this action to increase the effectiveness Scrapie is a degenerative and currently done at slaughter. of our surveillance for livestock eventually fatal disease affecting the Johne’s disease, also known as diseases. Collection of samples central nervous systems of sheep and paratuberculosis, is a disease caused by currently occurs on a small, voluntary goats. Currently, to definitively test for Mycobacterium paratuberculosis. This scale, but it needs to be expanded and scrapie, the brainstem of an animal must disease primarily affects cattle, sheep, to include both large and small be removed through the spinal opening goats, elk, and other domestic, exotic, slaughtering plants. Samples are and sent to a laboratory for and wild ruminants. Improved testing at currently collected by personnel histopathological procedures. In the slaughter for Johne’s disease would employed by APHIS, FSIS, or the near future, testing may involve improve our baseline knowledge of the slaughtering plants themselves. collecting other tissue or blood samples distribution and extent of Johne’s According to NASS and FSIS as well, depending on the tests in use disease and would allow us to better statistics for slaughtering establishments at the time. calculate the true cost of this disease to that may receive animals in interstate APHIS is attempting to improve the animal industries. movement, there are approximately 795 effectiveness of its scrapie control Slaughter testing can also yield plants slaughtering cattle, 757 plants program. On August 21, 2001, we valuable information about reservoirs of slaughtering swine, and 350 plants published a final rule (Docket No. 97– bluetongue, can help distinguish the slaughtering poultry. Fourteen of the 093–5, 66 FR 43963) in the Federal prevalence of different strains of this cattle plants and 11 of the swine plants Register that encourages improvement virus, and can also distinguish are very large operations that account of State quarantine programs for scrapie, bluetongue from epizootic hemorrhagic for 50 percent of the cattle and swine reinstituted a Federal indemnity disease. Slaughter testing could also slaughtered each year. Several dozen of program for scrapie, and made other help us better understand the the plants are of moderate size; the rest changes to strengthen scrapie control. significance of diseases such as porcine are small businesses. Some of these Slaughter testing for scrapie would reproductive and respiratory syndrome, plants slaughter both cattle and swine, dramatically improve surveillance for chronic wasting disease, and other and some slaughter other animals as
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well (sheep, horses, cervids, etc.). Some disease expected to be identified, we do providing access under voluntary degree of sample collection already not expect that this rule would have a sampling programs. We particularly occurs at virtually all of the cattle significant economic effect on any invite small businesses that may be plants, e.g., to collect the 12 million affected entities. Based on discussions affected by this proposed rule to blood samples required each year under with livestock industry groups and comment on its economic impacts. We Part 78 for States to maintain their slaughter industry groups, and the fact are seeking additional data on whether brucellosis classifications. Sample that most slaughtering plants accepting small businesses that must provide collection also occurs at virtually all of animals in interstate commerce already space and access for sample collection the poultry plants in accordance with cooperate with voluntary testing will incur additional expenses for rents, the National Poultry Improvement Plan. programs, we expect there will be facility costs, or salaries. We are also Some sample collection already occurs minimal effects on most slaughtering seeking data on costs that slaughter at about 20–25 of the largest swine plants in complying with the proposed plants might incur if it is necessary to plants to collect blood samples for standards. While this proposal may slow the production line to collect some pseudorabies testing. increase costs slightly for some types of samples (e.g., tissue samples). This proposed rule would allow us to slaughtering plants, prices for In the following sections we discuss collect samples at plants where agricultural products vary for many sampling does not now occur, but where potential economic effects on the reasons, and it is unlikely that various categories of slaughtering sampling is needed to fill information additional testing for this disease would gaps in our animal disease programs. plants, based on the types of animals have any measurable effect on costs for each processes. First, we present two We expect to initiate testing at several producers or consumers. large plants, primarily swine plants, tables summarizing the per-unit costs where testing has not occurred before, The primary economic effects of this and the total industry costs estimated to and at approximately 20 small proposal would be direct costs to those result from the blood and tissue businesses. slaughter plants that would have to sampling requirements in this proposed As noted above, many slaughtering provide us with access, workspace, and rule for cattle, swine, and sheep. Bear in plants already voluntarily cooperate equipment to collect samples. We do mind that the major costs of sample with APHIS to allow us to collect not have reliable data to document these collection are borne by the Federal samples for testing. Because of the costs, but we estimate that they would government, and that the costs to relatively small number of additional average no more than a few thousand slaughter plants are limited to costs animals that would be tested and the dollars a year per plant, for 20 to 30 associated with providing access for relatively small number of cases of plants that have not already been sample collection.
TABLE 1.—PER-UNIT COST OF BLOOD AND TISSUE SAMPLING—ANNUAL BASIS
Number Samples Cost of Animal slaughtered Disease currently Samples collection Cost of testing (millions) collected needed (per unit) (per unit)
Cattle ...... 35.5 Brucellosis ...... 12 million 12 million ...... 1 $0.50–1 $0.10–0.50 Cattle ...... 35.5 Tuberculosis ...... 1,200 ...... 4,000 ...... 2 11–14 20 Swine ...... 101.1 Pseudorabies ...... 750,000 ... 1.2 million...... 0.45–0.90 1–1.50 Swine ...... 101.1 Brucellosis ...... 750,000 ... 1.2 million...... (3) 1–1.50 Sheep ...... 4.0 Scrapie ...... 12,000 ...... 75,000 ...... 4 5–10 30 1 Contracts for collecting brucellosis samples are negotiated individually, prices vary widely. 2 To collect a sample for tuberculosis testing takes a veterinarian about a half-hour. An approximate hourly wage rate for a veterinarian em- ployed in a slaughtering facility would range from $22 to $28 per hour. (Veterinarians in this type of job would typically be at a GS–12 level). Ad- ditionally, the plant incurs a cost because the speed at which the processing line moves is slowed or stopped for a sample to be taken. Also, the carcass must be held by the plant while the testing is done, which typically takes 3 days. If the test is negative, the carcass is released. If the test is positive, the carcass cannot be sold and steps are taken to trace the disease back to its source. 3 No cost because the same blood sample is used to test for pseudorabies and brucellosis. 4 Animal health technicians normally collect scrapie test samples. An animal health technician can collect approximately 10 samples for scrapie testing per hour. Adjusting for time spent bagging samples for shipment, collecting identification devices, other administrative duties, and varying levels of efficiency at different facilities based on their layout and slaughter volume, the actual average collection rate would probably be 2 to 3 samples per hour. An approximate hourly wage rate for a technician employed in a slaughtering facility would range from $16 per hour to $21 per hour, based on the GS–7 pay scale plus benefits. Additionally, the plant would incur a cost because the processing line may be slowed or stopped for a sample to be taken.
TABLE 2.—TOTAL COST OF BLOOD AND TISSUE SAMPLING—ANNUAL BASIS
Per-unit Estimated total Estimated total Animal disease Samples needed cost of collec- Per-unit cost cost (millions)– cost (millions)– tion of testing lower bound upper bound
Cattle brucellosis ...... 12 million ...... $0.50–1 $0.10–0.50 $7.2 $18 Cattle tuberculosis...... 4,000 ...... 11–14 20 0.124 0.136 Swine pseudorabies ...... 1.2 million ...... 0.45–0.90 1–1.50 1.74 2.88 Swine brucellosis ...... 1.2 million ...... 1–1.50 1.2 1.8 Sheep scrapie ...... 75,000 ...... 5–10 30 2.625 3
Totals ...... 12.889 25.816 Note: Only approximately 25% of these costs come from increases in sampling resulting from the proposed rule; the remainder represent sam- pling already occurring under previous authorizations.
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Profile of Cattle and Swine moves is slowed or stopped for a sample cover follow-up tests from a positive Slaughtering Plants to be taken. Usually, samples can be result. collected without slowing the line. Also, APHIS is trying to increase Cost of Testing Additional Blood the carcass must be held by the plant surveillance for brucellosis, Samples for Swine Pseudorabies pseudorabies, and tuberculosis at these while the testing is done, which typically takes 3 days. Currently about Currently there are about 750,000 plants. Collection of samples needs to samples collected per year. An be expanded to include both large and 0.003 percent (1,200) of cattle slaughtered are tested for tuberculosis, estimated 1.2 million samples are small slaughtering plants. Under this needed for more complete testing. We proposed rule, samples would be and this rule proposes to initially increase testing to 4,000 head annually. estimate that less than 1 percent of collected by APHIS or FSIS personnel, swine herds are infected with contractors, or the slaughtering plants Because of the small number of additional tests for tuberculosis, this pseudorabies. themselves. At a large plant, two people would be The meat packing industry is aspect of the proposed rule would not have a material effect on small business needed to do the collection of blood included in the North American samples on a full-time basis, at a cost to Industry Classification System code of entities. If a tuberculosis test is negative, the the government of $25,000 to $30,000 311611. The Small Business per year. carcass is released. If the test is positive, Administration (SBA) definition of At smaller plants, where not enough the carcass cannot be sold and steps are small business for NAICS 311611 is a swine are slaughtered to warrant having taken to trace the disease back to its firm with less than 500 employees. an employee collect blood samples full source. If this traceback is successful, In 1996, 91 percent (1,260) of the total time, APHIS pays for each sample the herd has to be quarantined while it number of firms (1,341) in the meat collected. Rates range from $.45 to $.90 is tested and may be depopulated if packing business qualified as small cents per sample. businesses. Only firms with more than found positive. However, economic The sample is sent to a lab for testing. $100 million in sales average more than effects related to herd quarantine and It costs approximately $1.00 per sample 500 employees. Eighty-one firms had depopulation are not reasonably linked for testing. APHIS has some contracts sales of more than $100 million in 1996. to this proposal, since herds are already and cooperative agreements with (SBA Office of Advocacy, http:// quarantined and depopulated under universities to do some testing. The cost www.sba.gov/advo/stats/int_data.html.) other APHIS regulations. is negotiated with each lab separately. There are 795 federally inspected Cost of Testing Additional Blood The rate can be up to $1.50 per sample. plants that slaughtered at least one head Samples for Cattle Brucellosis One reason for some firms’ reluctance of cattle in 1998. Fourteen plants to participate in collecting blood account for over 50 percent of the total This proposed rule would not change samples is concern about liability. cattle killed. (Agricultural Statistics the number of brucellosis test samples Collection is often done in potentially Board, National Agricultural Statistics collected from cattle or the way in hazardous conditions; for example, the Service (NASS), Livestock Slaughter which they are processed. This floors may be wet, the quarters may be 1998 Summary, March 1999.) There are proposed rule would have no significant cramped, and there are sharp knives and 757 plants that slaughter hogs. Eleven economic effect with regard to cattle equipment present. plants account for 48 percent of the total tested for brucellosis. It is difficult to estimate the average hogs killed. Currently there are approximately 12 cost incurred because of liability issues. million blood samples collected each The relevant issue here is the marginal Cost of Testing Additional Tissue year to test for brucellosis. Under part increase in liability costs due to this Samples for Tuberculosis 78, States must collect these samples in regulation. Slaughtering plants are Currently, FSIS collects about 1,200 order to maintain their brucellosis already involved in a potentially tissue samples from slaughter cattle status. hazardous activity. Adding the each year to be tested for tuberculosis. There are 795 federally inspected requirement to collect blood and tissue There are approximately 100 positive plants that slaughtered at least one head samples would not add significantly to test results per year. It is estimated that of cattle in 1998. Fourteen plants the liability incurred by a plant; but a .0002 percent of all U.S. cattle may be account for over 50 percent of the total small increase in liability costs may be infected with tuberculosis. There were cattle killed. (Agricultural Statistics expected. 98.5 million head of cattle in the United Board, NASS, Livestock Slaughter 1998 There are 757 plants that slaughter States as of January 1, 1999. Therefore, Summary, March 1999.) All swine. Eleven plants account for 48 it is estimated that fewer than 200 head slaughtering plants that ship product percent of the total swine killed. In of cattle are infected with tuberculosis across State lines are subject to Federal 1998, 101.1 million swine were at any one time. inspection. slaughtered; 98.3 percent of all swine Under this proposed rule, the direct In 1998, there were 35.5 million head slaughtered are slaughtered under costs of collecting a tissue sample and of cattle slaughtered; 98.1 percent were federal inspection. (Agricultural testing it for tuberculosis would be subject to Federal inspection. Only Statistics Board, NASS, Livestock borne by APHIS, in either salary or cattle that are 2 years old or older are Slaughter 1998 Summary, March 1999.) contractor costs. It takes a veterinarian tested for brucellosis. All slaughtering plants that ship about a half-hour to collect a sample for Most of the blood sample collection is products across State lines are subject to tuberculosis testing. An approximate done by plant personnel or by FSIS. Federal inspection. Some 96 percent of hourly wage rate for a Federal or APHIS personnel collect only a small the Federally inspected swine at contractor veterinarian to do these percentage of the total samples, slaughter was barrows and gilts duties would be $22 to $28 per hour. approximately 50,000 samples per year, (younger pigs, with less fat, that are The cost of laboratory analysis to test for or 0.4 percent of the total. used for higher quality cuts of pork). tuberculosis is about $20.00. Testing of the samples for brucellosis There were about 4 million sows and A slaughtering plant may incur a cost costs between $0.10 and $0.50 per boars slaughtered in 1998. For testing if the speed at which the processing line sample. The high range of costs would for pseudorabies, these are the swine
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that we are concerned about. There is were only 63 cases of scrapie reported. processing line moves may be slowed or about a 40 percent turnover in sows per Given this incidence, approximately stopped for a sample to be taken, similar year. 15,000 animals should be sampled at to the effects already caused by FSIS If a herd tests positive, it is then slaughter each year for optimal inspections. The sheep or goat carcass quarantined. The swine can be sold for monitoring for scrapie. Five distinct would not have to be held by the plant slaughter but cannot be sold for tissue samples are collected from each while the testing is done, so it would breeding stock. Swine sold for breeding animal’s head, resulting in about 75,000 continue along on the processing line, stock are typically twice as expensive as samples to be collected. This level of and the processor would not incur the swine sold for slaughter. sampling will detect the incidence and cost of having to hold the carcass. distribution of scrapie with a confidence Costs of Testing for Scrapie at Sheep Additional testing for scrapie would of over 95 percent. Slaughtering Plants This proposed rule would not have a provide a better record of diseases and The slaughtering plant industry is significant adverse economic effect on enhance our ability to limit the infection included in NAICS code 311611. The small businesses. Blood and tissue of additional flocks with scrapie. While SBA’s definition of small business for samples would be collected either by the costs of additional testing are NAICS 311611 is a firm with less than APHIS, FSIS, or a contractor paid for by visible, the benefits often are not. The 500 employees. Only firms with more USDA. Firms could incur secondary true economic benefit of additional than $100 million in sales average more costs for collecting tissue samples for testing is that it will contribute to than 500 employees. Two slaughtering testing as a result of production lines control and eventual eradication of plants that process sheep had sales of that may have to be slowed down or scrapie, resulting in better overall flock more than $100 million in 1998. (SBA stopped temporarily. Firms would also productivity, a reduction in flocks Office of Advocacy, http://www.sba.gov/ incur costs for providing the space, depopulated due to scrapie, and advo/stats/int_data.html.) furnishings, and equipment required for expanded market opportunities for There are 556 federally inspected the personnel collecting samples, animals that can be marketed as scrapie- plants that slaughtered at least one although we believe many firms will be free. Production of agricultural sheep in 1998. Two plants account for able to minimize these costs by utilizing commodities varies for many reasons, over 40 percent of the total sheep some of the space and equipment and it would be difficult to determine slaughtered (Agricultural Statistics already provided for Federal and State the change in production due to Board, NASS, Livestock Slaughter 1998 inspectors and firms’ quality assurance additional testing. Because the Summary, March 1999). In 1998, 4.429 personnel. percentage of animals currently infected million sheep were slaughtered, of The primary direct costs would be the with scrapie is small, we expect that which 94.8 percent were subject to cost of collecting samples and the cost slaughter testing will result in the Federal inspection. Only about 212,000 of testing samples, both of which would identification and quarantine of very of these were mature sheep suitable for be borne by USDA. Over the long term, few additional infected flocks. scrapie testing. samples will cost about $5 to $10 each Quarantining the animals in these flocks It is estimated that roughly 1.2 to collect and $30 each to test. is not likely to have a statistically percent of all U.S. sheep flocks are Additionally, the plant could incur a significant effect on current or future infected with scrapie. In 1998, there cost because the speed at which the production.
TABLE 3.—PER-UNIT COST OF COLLECTING AND TESTING SHEEP AND GOAT SAMPLES FOR SCRAPIE
Samples to Samples Cost of Cost of Animals slaughtered (1998) be collected collection1 (per testing (per (2000) needed unit) sample)
4.03 million ...... 12,000 75,000 $5–10 $30 1 See footnote 4 to table 1.
TABLE 4.—TOTAL ANNUAL COST OF COLLECTING AND TESTING SHEEP AND GOAT SAMPLES FOR SCRAPIE
Cost of Cost of Samples needed collection (per testing (per Total sample) sample) cost (millions)
75,000 ...... $5–10 $30 $2.625–3
Costs of Testing Captive Cervids at The number of cervids farmed is industry compared to cattle, swine, or Slaughter small compared to cattle, swine, or sheep. sheep. Because it is a small industry, As stated earlier, the meat packing Captive cervids might be tested at NASS does not collect data about cervid industry is included in NAICS code slaughter for tuberculosis and for production or slaughter. According to 311611. The SBA’s definition of small chronic wasting disease (CWD). The the North American Elk Breeders business for NAICS 311611 is a firm cost per animal of testing cervids for Association, there are 150,000 to with less than 500 employees. tuberculosis is similar to the cost per 160,000 elk being raised on farms in In 1996, 91 percent (1,260) of the total animal of testing cattle for this disease. North America. This number includes number of firms (1,341) in the meat The cost per animal of testing cervids elk raised in Canada and Mexico. The packing business qualified as small for CWD is similar to the cost per number of deer raised on farms is businesses. Only firms with more than animal of testing sheep for scrapie. uncertain, but it is also a very small $100 million in sales average more than
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500 employees. Eighty-one firms had December 1999, the preliminary total alone has spent hundreds of millions of sales of more than $100 million in 1996. live weight of poultry inspected was dollars in the past decade on these (SBA Office of Advocacy, http:// 3.95 billion pounds, up fractionally programs, and more hundreds of www.sba.gov/advo/stats/int_data.html.) from the previous year. Ante-mortem millions of dollars on indemnity Plants that slaughter captive cervids condemnations during December 1999 programs to buy and destroy diseased would qualify as small businesses. It totaled 15.3 million pounds. animals. Over time, a more effective seems that, currently, there are not Condemnations were 0.39 percent of the slaughter testing program could reduce enough cervids slaughtered per year to live weight inspected. Post-mortem these costs. However, in the short-term, motivate large meat packing businesses condemnations, at 62 million pounds a more effective slaughter testing to devote production lines to the (N.Y. dressed weight), were 1.75 percent program may detect a higher incidence slaughter of cervids. of quantities inspected. of diseases, and so may generate greater This proposed rule would not have an In contrast, even if APHIS tested costs. Gains would accrue in the long- adverse effect on small businesses that poultry plants at the maximum level term from improved herd and flock slaughter cervids. Blood samples would envisioned under this proposed rule, health, reduced disease costs, reduced be collected either by APHIS, by FSIS, and if such testing always resulted in prophylactic costs, and expanded export by contractors, or by the firms destruction of the poultry tested rather opportunities. themselves. Firms would be than just collection of a test sample, the compensated on a per unit basis for total effects would be collection of Cattle Industry Benefits collecting the samples. The costs of under 120,000 samples per year, and the This proposed rule would not affect testing captive cervids would be similar loss of under 600,000 pounds of poultry the amount of samples from cattle to the costs of testing cattle. Because of per year. collected to test for brucellosis or the the small number of tests that are way in which the testing is conducted. expected to be done, this proposed rule Benefits of Additional Testing There would be no economic effect due would not have a material effect on Additional testing would provide a to this proposed rule with respect to small business entities. better record of diseases and enhance collecting blood samples for cattle our ability to prevent potential brucellosis. With regard to cattle Costs of Testing Poultry at Slaughter outbreaks of diseases. While the costs of tuberculosis, on average one herd per In 1997, there were 315 poultry additional testing are visible, the year has to be eradicated because of a processing firms (NAICS 311615) benefits often are not. The true positive tuberculosis test. The value of according to SBA statistics. To qualify economic benefit of additional testing the average size herd in 1996 and 1997 as a small business, firms engaged in would be the amount by which ranged from $46,200 to $52,976. The meat processing must have less than production is increased or the amount value of a herd that has to be eradicated $500,000 in annual receipts. Even the by which production is not lost due to can vary widely depending on the size smallest classification of poultry herds being depopulated because of of the herd and market prices. If one processing firms, those with less than 20 disease. The benefits of this program cow is found to be tuberculosis positive, employees, averaged over $1 million in include better animal disease control, the entire herd is quarantined and may annual receipts in 1999. While this does greater productivity in flocks and herds, be depopulated. Eliminating the cost of not exclude the possibility that there fewer animals lost to disease, and depopulating a herd would represent may be poultry processing firms that greater opportunity to develop export only a small part of the benefit of qualify as small businesses, we have markets for animals and products that additional testing. One benefit of this been unable to locate any such firms. can have their disease status backed up proposed rule would be the value of the This proposed rule would not have a by an effective slaughter testing herds that do not have to be significant adverse effect on small program. Increased testing of slaughter depopulated. As discussed above, businesses. samples will allow us to more quickly another benefit to both the cattle It is estimated that this proposed rule, identify and isolate herds or flocks industry and the general public would if adopted, could result in the collection affected by disease, reducing the result from improved disease control of a maximum of 300 samples per number of animals lost to disease and resultant increased productivity. quarter, collected from about 100 control. Production of agricultural different poultry plants, to conduct commodities varies for many reasons, Swine Industry Benefits adequate testing for exotic Newcastle and it would be difficult to determine Elimination of pseudorabies directly disease, avian influenza, or other the change in production due to impacts producer income. Producers diseases that APHIS may wish to additional testing. Because the who are able to eliminate this disease monitor. Blood samples would be percentages of animals currently from their herds are able to earn up to collected either by APHIS, by FSIS, by infected with diseases such as $4 more per hog. In addition, contractors, or by the firms themselves. pseudorabies and tuberculosis are very pseudorabies kills numerous young Firms would be compensated on a per small, additional testing for these piglets and causes reproductive unit basis for collecting the samples. diseases resulting in the quarantine of problems in sows. Historically, each Additional testing that would be some additional herds may not have a year pseudorabies has cost several conducted under this proposed rule statistically significant effect on current billion dollars in lost producer revenues would be an insignificant amount or future swine and cattle production, and the cost of control measures. To the compared to the testing and inspection but effective surveillance for these extent that collecting blood samples and already performed at poultry plants. The diseases can dramatically increase testing contributes to faster elimination NASS Agricultural Statistics Board export markets, increasing the value of of pseudorabies, this rule will have a report entitled ‘‘Poultry Slaughter,’’ herds. Another benefit of additional positive economic impact on producer dated February 4, 2000, gives testing would be that it would incomes. APHIS hopes to eliminate representative figures for the amount of contribute to lowering the overall costs pseudorabies within the next year. poultry that is inspected or tested at of animal disease control programs by Additional slaughter testing should processing plants, and the fraction that generating epidemiological data to make allow pseudorabies to be eliminated is condemned for failing inspection. In these programs more effective. APHIS from U.S. swine herds, or reduced to an
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insignificant level, several months flock. This often means the loss of tens slaughter plants might incur if it is earlier than would otherwise be of thousands of poultry to control a necessary to slow the production line to possible. The additional slaughter single outbreak. collect some types of sample. testing that would be allowed if this Cervid Industry Benefits The benefits of this program include proposal is adopted would also help better animal disease control, greater establish baseline data that could be In addition to the benefits cited above productivity in flocks and herds, fewer used to develop disease control for other industries, the cervid industry animals lost to disease, and greater programs to reduce the impact on at present faces the possibility that its opportunity to develop export markets industry of other swine diseases such as major export markets will be cut off for animals and products that can have porcine reproductive and respiratory unless there is an effective slaughter their disease status backed up by an syndrome. testing surveillance program for chronic effective slaughter testing program. wasting disease (CWD). The Republic of Sheep Industry Benefits Korea recently banned importation of The overall costs of this program that Improved surveillance would aid elk antlers from the United States due are borne by industry are expected to be eradication of scrapie, which would to concerns about this disease, and other relatively minor, though further directly affect producer income. countries may follow. The elk industry information is needed to assess costs for Producers who are able to eliminate this depends on foreign markets for a large those plants that need to make disease from their flocks lose fewer part of its revenue, and these markets adjustments to their operations to animals to disease and can, therefore, have indicated that they may not import comply. In most cases, small businesses maintain more animals at a lower U.S. elk products unless there is a will have to do little more than to allow production cost per animal. They can reasonably effective testing program to sample collectors to have access to their also sell their animals at a higher price ensure the products are not from CWD- production lines. and with fewer regulatory costs and may positive elk. In the following table, costs are compared for the level of slaughter be able to sell to additional foreign Overall Summary markets. To the extent that collecting sampling and testing APHIS currently samples and testing contributes to The total direct cost of the testing this conducts and the increase in such elimination of scrapie, this proposed proposed rule envisions for cattle, activities we expect would result if this rule would have a positive economic swine, and sheep is between $12.889 proposed rule is adopted. This table effect on producer incomes. The million and $25.816 million, borne by does not include the benefits achieved additional slaughter testing that would APHIS. However, as noted above, by current and proposed sampling be conducted if this proposal is adopted APHIS already conducts some of this activity levels, because data are not would also help establish baseline data testing on a voluntary basis, although available to quantify the benefits. As that could be used to develop disease we collect only a fraction of the samples discussed above, the benefits result from control programs to reduce the we believe are needed for an effective avoiding animal disease outbreaks, and economic effect on industry of other testing program. If we subtract the cost there are too many possible outbreak sheep diseases. of testing APHIS is already conducting, scenarios to allow a meaningful the new total direct costs are between calculation of a benefits range. The Poultry Industry Benefits about $4 million and $12 million. In expected benefits result from the As noted above, the additional testing addition to these direct costs for cattle, expectation that sampling and testing that would be conducted under this swine, and sheep, there will be direct helps APHIS avoid some additional proposed rule would serve as a minor testing costs for slaughter testing of animal disease outbreaks, thereby but valuable supplement to the poultry horses, cervids and poultry. The extent avoiding: (1) The direct cost of dealing testing already conducted in accordance of testing to be done in this area is still with an outbreak (cleaning and with the National Poultry Improvement uncertain, but it will be much smaller disinfection, compensation to Plan. than the program for cattle, sheep, and producers, quarantine enforcement, The poultry industry, like other swine, and should not amount to more etc.); (2) production losses; (3) induced animal industries, would benefit in the than a few million dollars in annual price changes, and (4) the effect of the form of increased productivity and direct costs. In addition to direct testing outbreak on other sectors of the possible expansion of overseas markets. costs borne by APHIS, slaughtering economy. In view of the fact that the More effective disease surveillance is plants will bear certain direct costs economic output of U.S. livestock particularly important in the poultry related to providing space and access for industries exceeds $100 billion, an industry because outbreaks of severe sample collection, and possible losses if avoided impact of even a fraction of 1 avian disease frequently must be production lines must be slowed for percent on this sector would controlled by destroying a number of sample collection. We are requesting substantially exceed the total sampling poultry houses in a flock or the entire comments providing data on costs that costs estimated in Table 5.
TABLE 5—COSTS OF SAMPLING FOR CATTLE BRUCELLOSIS AND TUBERCULOSIS, SWINE PSEUDORABIES AND BRUCELLOSIS, AND SHEEP SCRAPIE
Low Range High Range
Current sampling costs ...... $9,494,700 ...... $21,224,800 Additional sampling costs ...... 3,394,300 ...... 4,591,200
Under these circumstances, the determined that this action would not Executive Order 12372 Administrator of the Animal and Plant have a significant economic impact on Health Inspection Service has a substantial number of small entities. This program/activity is listed in the Catalog of Federal Domestic Assistance
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under No. 10.025 and is subject to samples from all livestock and poultry Accordingly, we propose to amend 9 Executive Order 12372, which requires at slaughter; we would collect samples CFR part 71 as follows: intergovernmental consultation with whenever we believe it is necessary for State and local officials. (See 7 CFR part effective surveillance. PART 71—GENERAL PROVISIONS 3015, subpart V.) Implementing a test-at-slaughter 1. The authority citation for part 71 program will necessitate the use of a would be revised to read as follows: Executive Order 12988 specimen submission form. We are This proposed rule has been reviewed asking OMB to approve, for 3 years, our Authority: 7 U.S.C. 8304–8306, 8308, 8310, under Executive Order 12988, Civil use of this information collection 8313, and 8315; 7 CFR 2.22, 2.80, and 371.4. Justice Reform. If this proposed rule is activity in connection with our efforts to 2. In § 71.1, the definition of livestock adopted: (1) All State and local laws and perform testing at slaughter and thus would be revised and three new regulations that are in conflict with this prevent the spread of animal diseases definitions would be added in rule will be preempted; (2) no within the United States. alphabetical order to read as follows: retroactive effect will be given to this We are soliciting comments from the rule; and (3) administrative proceedings public (as well as affected agencies) § 71.1 Definitions. will not be required before parties may concerning our proposed information * * * * * file suit in court challenging this rule. collection and recordkeeping Food Safety and Inspection Service requirements. These comments will (FSIS). The Food Safety and Inspection Paperwork Reduction Act help us: Service, United States Department of In accordance with section 3507(d) of (1) Evaluate whether the proposed Agriculture. the Paperwork Reduction Act of 1995 information collection is necessary for * * * * * (44 U.S.C. 3501 et seq.), the information the proper performance of our agency’s Livestock. Horses, cattle, bison, collection or recordkeeping functions, including whether the captive cervids, sheep and goats, swine, requirements included in this proposed information will have practical utility; and other farmed animals. rule have been submitted for approval to (2) Evaluate the accuracy of our * * * * * the Office of Management and Budget estimate of the burden of the proposed Move (moved). Shipped, transported, (OMB). Please send written comments information collection, including the delivered, or otherwise aided, induced, to the Office of Information and validity of the methodology and or caused to be moved. Regulatory Affairs, OMB, Attention: assumptions used; Desk Officer for APHIS, Washington, DC (3) Enhance the quality, utility, and * * * * * 20503. Please state that your comments clarity of the information to be Recognized slaughtering refer to Docket No. 99–017–1. Please collected; and establishment. Any slaughtering send a copy of your comments to: (1) (4) Minimize the burden of the establishment operating under the Docket No. 99–017–1, Regulatory information collection on those who are provisions of the Federal Meat Analysis and Development, PPD, to respond (such as through the use of Inspection Act (21 U.S.C. 601 et seq.) or APHIS, suite 3C03, 4700 River Road appropriate automated, electronic, a State meat inspection act. A list of Unit 118, Riverdale, MD 20737–1238, mechanical, or other technological recognized slaughtering establishments and (2) Clearance Officer, OCIO, USDA, collection techniques or other forms of in any State may be obtained from an room 404-W, 14th Street and information technology; e.g., permitting APHIS representative, the State animal Independence Avenue, SW., electronic submission of responses). health official, or a State representative. Washington, DC 20250. A comment to Estimate of burden: Public reporting * * * * * OMB is best assured of having its full burden for this collection of information 3. A new § 71.21 would be added to effect if OMB receives it within 30 days is estimated to average 0.3333 hours per read as follows: of publication of this proposed rule. response. Respondents: Slaughtering plant § 71.21 Tissue and blood testing at APHIS is responsible for preventing slaughter. the dissemination of any contagious or personnel assigned to collect blood and communicable disease of animals or live tissue samples. (a) Any person moving livestock or poultry from one State to another. Estimated number of respondents: poultry interstate for slaughter may only Disease surveillance plays an important 100. move the animals to a slaughtering Estimated number of responses per role in the APHIS mission of protecting establishment that has been listed by the respondent: 120. 1 the health of the U.S. livestock and Administrator for the purposes of this Estimated annual number of part. A slaughtering establishment may poultry populations, and testing animals responses: 12,000. for disease is an important surveillance receive livestock or poultry in interstate Estimated total annual burden on commerce only if the slaughtering tool. We can use epidemiological data respondents: 4,000 hours. from tests to assess the prevalence of establishment has been listed by the (Due to averaging, the total annual Administrator. The Administrator may disease and to identify sources of burden hours may not equal the product disease. When testing is coupled with list a slaughtering establishment after of the annual number of responses determining that collecting samples for animal identification, we can trace a multiplied by the reporting burden per positive animal’s movements and testing from the establishment is not response.) necessary for the purposes of APHIS identify other animals with which it Copies of this information collection may have come into contact. disease surveillance programs. can be obtained from Mrs. Celeste Otherwise, the Administrator will list a To enhance our surveillance Sickles, APHIS’ Information Collection slaughtering establishment after capabilities, we are publishing this Coordinator, at (301) 734–7477. proposed rule to provide for the determining that it is a recognized collection of blood and tissue samples List of Subjects in 9 CFR Part 71 slaughtering establishment or a from livestock (horses, cattle, bison, Animal diseases, Livestock, Poultry 1 A list of these slaughtering establishments may captive cervids, sheep and goats, swine, and poultry products, Quarantine, be obtained by writing to National Animal Health and other farmed animals) and poultry Reporting and recordkeeping Programs, VS, APHIS, 4700 River Road Unit 43, at slaughter. We would not collect requirements, Transportation. Riverdale, MD 20737–1231.
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slaughtering establishment that contaminated by diseased carcasses or withdrawal of the listing. The undergoes voluntary inspection under otherwise; and Administrator will grant or deny the the provisions of the Agricultural (6) Has adequate facilities, including appeal in writing as promptly as Marketing Act (12 U.S.C. 1141 et seq.), denaturing materials, for the proper circumstances permit, stating the reason and that it: disposal of tissue, blood, and other for his or her decision. If there is a (1) Provides space and equipment in waste generated during test sample conflict as to any material fact, a hearing accordance with paragraph (b) of this collection. will be held to resolve the conflict. section within their facility for blood (c) The Administrator will give the Rules of practice concerning the hearing and tissue sample collection; operator of the slaughtering will be adopted by the Administrator. (2) Allows APHIS, FSIS, or APHIS establishment actual notice that APHIS, However, withdrawal shall become contractors to take blood and tissue FSIS, or an APHIS contractor will be effective pending final determination in samples from all livestock or poultry at taking blood and/or tissue samples at the proceeding when the Administrator the facility without cost to the United the establishment. The Administrator determines that such action is necessary States, and specifically allows these may give the operator of the to protect the public health, interest, or personnel access to the processing line slaughtering establishment notice in any safety. Such withdrawal shall be to collect samples; and form or by any means that the effective upon oral or written (3) Allows APHIS, FSIS, or APHIS Administrator reasonably believes will notification, whichever is earlier, to the contractors to record the identification reach the operator of the establishment operator of the slaughtering of individual animals and retain any prior to the start of sample collection. establishment. In the event of oral external or internal identification (1) The notice will include the notification, written confirmation shall devices. anticipated date and time sample be given as promptly as circumstances (b) The slaughtering establishment collection will begin. The notice will allow. This withdrawal shall continue must provide office and sample also include the anticipated ending date in effect pending the completion of the collection space, including necessary and time. proceeding, and any judicial review (2) The Administrator will give the furnishings, light, heat, and janitor thereof, unless otherwise ordered by the operator of the slaughtering service, rent free, for the use by APHIS, Administrator. FSIS, or APHIS contractors collecting establishment as much advance notice samples for blood and tissue testing as possible. However, the actual amount Done in Washington, DC, this 21st day of under this section. The Administrator of notice will depend on the specific November, 2002. will inform each slaughtering situation. Bill Hawks, establishment of the exact amount and (d) Denial and withdrawal of listing. Under Secretary for Marketing and Regulatory type of space required, taking into The Administrator may deny or Programs. account whether APHIS will be withdraw the listing of a slaughtering [FR Doc. 02–30093 Filed 11–26–02; 8:45 am] conducting complete tests at the facility, establishment upon a determination that BILLING CODE 3410–34–P or only collecting samples and sending the establishment is not in compliance them elsewhere for testing. At the with the requirements of this section. discretion of the Administrator, small (1) In the case of a denial, the operator DEPARTMENT OF TRANSPORTATION plants need not furnish facilities as of the slaughtering establishment will be prescribed in this section if adequate informed of the reasons for the denial Federal Aviation Administration facilities exist in a nearby convenient and may appeal the decision in writing location. In granting or denying listing to the Administrator within 10 days 14 CFR Part 39 of a slaughtering establishment, the after receiving notification of the denial. [Docket No. 2002–NM–23–AD] Administrator will consider whether the The appeal must include all of the facts RIN 2120–AA64 space at the facility: and reasons upon which the person (1) Is conveniently located, properly relies to show that the slaughtering establishment was wrongfully denied Airworthiness Directives; Boeing ventilated, and provided with lockers Model 747–200B and –200F Series suitable for the protection and storage of listing. The Administrator will grant or deny the appeal in writing as promptly Airplanes Powered by Pratt & Whitney supplies; JT9D–70 Series Engines (2) Has sufficient light to be adequate as circumstances permit, stating the for proper conduct of sample collection reason for his or her decision. If there AGENCY: Federal Aviation and processing; is a conflict as to any material fact, a Administration, DOT. (3) Includes racks, receptacles, or hearing will be held to resolve the ACTION: Notice of proposed rulemaking other suitable devices for retaining such conflict. Rules of practice concerning (NPRM). parts as the head, glands, and viscera, the hearing will be adopted by the and all parts and blood to be collected, Administrator. SUMMARY: This document proposes the until after the post-mortem examination (2) In the case of withdrawal, before adoption of a new airworthiness is completed; such action is taken, the operator of the directive (AD) that is applicable to (4) Includes tables, benches, and other slaughtering establishment will be certain Boeing Model 747–200B and equipment on which sample collection informed of the reasons for the proposed –200F series airplanes powered by Pratt and processing are to be performed, of withdrawal. The operator of the & Whitney JT9D–70 series engines. This such design, material, and construction slaughtering establishment may appeal proposal would require repetitive as to enable sample collection and the proposed withdrawal in writing to detailed inspections of the pylon skin processing in a safe, ready, efficient, and the Administrator within 10 days after and internal structure of the nacelle clean manner; being informed of the reasons for the struts adjacent to and aft of the (5) Has adequate arrangements, proposed withdrawal. The appeal must precooler exhaust vent for heat damage including liquid soap and cleansers, for include all of the facts and reasons upon (discoloration), wrinkling, and cracking; cleansing and disinfecting hands, which the person relies to show that the and corrective action, if necessary. This dissection tools, floors, and other reasons for the proposed withdrawal are action is necessary to find and fix such articles and places that may be incorrect or do not support the damage, which could result in cracking
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or fracture of the nacelle struts, and request to change the service bulletin • If heat discoloration but no consequent reduced structural integrity reference as two separate issues. wrinkling is found, do a conductivity and possible separation of the strut and • For each issue, state what specific test of the damaged area(s). If the engine from the airplane. This action is change to the proposed AD is being conductivity test is within specified intended to address the identified requested. limits, do a penetrant or high frequency unsafe condition. • Include justification (e.g., reasons or eddy current (HFEC) inspection of the DATES: Comments must be received by data) for each request. heat discolored areas for cracking. If no January 13, 2003. Comments are specifically invited on cracking is found, repeat the detailed the overall regulatory, economic, inspection. ADDRESSES: Submit comments in • environmental, and energy aspects of If wrinkling is found, do a penetrant triplicate to the Federal Aviation inspection for cracking of the wrinkled Administration (FAA), Transport the proposed rule. All comments submitted will be available, both before area(s). An optional HFEC inspection Airplane Directorate, ANM–114, can also be done for such damage. The Attention: Rules Docket No. 2002–NM– and after the closing date for comments, in the Rules Docket for examination by service bulletin specifies contacting the 23–AD, 1601 Lind Avenue, SW., manufacturer for additional instructions Renton, Washington 98055–4056. interested persons. A report summarizing each FAA-public contact if wrinkling is found. Comments may be inspected at this • If cracking is found, or the location between 9 a.m. and 3 p.m., concerned with the substance of this proposal will be filed in the Rules conductivity readings are not within the Monday through Friday, except Federal limits specified in the service bulletin, holidays. Comments may be submitted Docket. Commenters wishing the FAA to the service bulletin specifies contacting via fax to (425) 227–1232. Comments the manufacturer for additional may also be sent via the Internet using acknowledge receipt of their comments submitted in response to this action instructions. the following address: 9-anm- Accomplishment of the actions must submit a self-addressed, stamped [email protected]. Comments sent specified in the service bulletin is postcard on which the following via fax or the Internet must contain intended to adequately address the statement is made: ‘‘Comments to ‘‘Docket No. 2002–NM–23–AD’’ in the identified unsafe condition. subject line and need not be submitted Docket Number 2002–NM–23–AD.’’ The in triplicate. Comments sent via the postcard will be date stamped and Explanation of Requirements of Internet as attached electronic files must returned to the commenter. Proposed Rule be formatted in Microsoft Word 97 for Availability of NPRMs Since an unsafe condition has been Windows or ASCII text. identified that is likely to exist or The service information referenced in Any person may obtain a copy of this develop on other products of this same the proposed rule may be obtained from NPRM by submitting a request to the type design, the proposed AD would Boeing Commercial Airplane Group, FAA, Transport Airplane Directorate, require accomplishment of the actions P.O. Box 3707, Seattle, Washington ANM–114, Attention: Rules Docket No. specified in the service bulletin 98124–2207. This information may be 2002–NM–23–AD, 1601 Lind Avenue, described previously, except as examined at the FAA, Transport SW., Renton, Washington 98055–4056. discussed below. Airplane Directorate, 1601 Lind Discussion Difference Between Proposed Rule and Avenue, SW., Renton, Washington. The FAA has received reports from Service Bulletin FOR FURTHER INFORMATION CONTACT: three operators who found heat damage Although the service bulletin Tamara L. Anderson, Aerospace (discoloration) and cracking adjacent to Engineer, Airframe Branch, ANM–120S, specifies that the manufacturer may be and aft of the precooler exhaust vent on contacted for disposition of certain FAA, Seattle Aircraft Certification the nacelle struts of three Boeing Model Office, 1601 Lind Avenue, SW., Renton, repair conditions, this proposal would 747 series airplanes powered by Pratt & require the repair of those conditions to Washington 98055–4056; telephone Whitney JT9D–70 series engines. (425) 227–2771; fax (425) 227–1181. be accomplished per a method approved Investigation revealed that high by the FAA, or per data meeting the SUPPLEMENTARY INFORMATION: temperature exhaust air from the type certification basis of the airplane Comments Invited precooler vent caused the heat damage. approved by a Boeing Company Such damage to the structure could Designated Engineering Representative Interested persons are invited to result in cracking or fracture of the who has been authorized by the FAA to participate in the making of the nacelle struts, and consequent reduced make such findings. proposed rule by submitting such structural integrity and possible written data, views, or arguments as separation of the strut and engine from Cost Impact they may desire. Communications shall the airplane. There are approximately 7 airplanes identify the Rules Docket number and of the affected design in the worldwide Explanation of Relevant Service be submitted in triplicate to the address fleet. The FAA estimates that 6 Information specified above. All communications airplanes of U.S. registry would be received on or before the closing date We have reviewed and approved affected by this proposed AD, that it for comments, specified above, will be Boeing Special Attention Service would take approximately 8 work hours considered before taking action on the Bulletin 747–54–2210, dated December per airplane to accomplish the proposed proposed rule. The proposals contained 19, 2001, which describes procedures inspection, and that the average labor in this action may be changed in light for repetitive detailed inspections of the rate is $60 per work hour. Based on of the comments received. pylon skin and internal structure of the these figures, the cost impact of the Submit comments using the following nacelle struts adjacent to and aft of the proposed AD on U.S. operators is format: precooler exhaust vent for heat estimated to be $2,880, or $480 per • Organize comments issue-by-issue. discoloration, wrinkling, and cracking; airplane, per inspection cycle. For example, discuss a request to and corrective action, if necessary. The The cost impact figure discussed change the compliance time and a corrective action includes the following: above is based on assumptions that no
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operator has yet accomplished any of Authority: 49 U.S.C. 106(g), 40113, 44701. further flight, do a conductivity test of the the proposed requirements of this AD discolored area(s) per the service bulletin. If § 39.13 [Amended] action, and that no operator would the conductivity test is within the limits accomplish those actions in the future if 2. Section 39.13 is amended by specified in Figures 3 and 4, as applicable, this proposed AD were not adopted. The adding the following new airworthiness of the Work Instructions of the service cost impact figures discussed in AD directive: bulletin, and no cracking is found, before rulemaking actions represent only the Boeing: Docket 2002–NM–23–AD. further flight, do a penetrant or high time necessary to perform the specific Applicability: Model 747–200B and –200F frequency eddy current (HFEC) inspection for actions actually required by the AD. series airplanes powered by Pratt & Whitney cracking. These figures typically do not include JT9D–70 series engines, certificated in any (2) If any sign of wrinkling is found: Before incidental costs, such as the time category; as listed in Boeing Special further flight, do a penetrant or HFEC required to gain access and close up, Attention Service Bulletin 747–54–2210, inspection of the wrinkled area(s) for planning time, or time necessitated by dated December 19, 2001. cracking, per the service bulletin. (3) If any sign of cracking is found, before other administrative actions. Note 1: This AD applies to each airplane identified in the preceding applicability further flight, do the corrective action Regulatory Impact provision, regardless of whether it has been required by paragraph (b) of this AD. The regulations proposed herein modified, altered, or repaired in the area (b) If, during any inspection or test done subject to the requirements of this AD. For by this AD, any wrinkling or cracking is would not have a substantial direct airplanes that have been modified, altered, or found, or the conductivity limits exceed the effect on the States, on the relationship repaired so that the performance of the limits specified in Figures 3 and 4, as between the national Government and requirements of this AD is affected, the applicable, of the Work Instructions of the the States, or on the distribution of owner/operator must request approval for an service bulletin: Before further flight, repair power and responsibilities among the alternative method of compliance in per a method approved by the Manager, various levels of government. Therefore, accordance with paragraph (c) of this AD. Seattle Aircraft Certification Office (ACO), it is determined that this proposal The request should include an assessment of FAA; or per data meeting the type the effect of the modification, alteration, or would not have federalism implications certification basis of the airplane approved repair on the unsafe condition addressed by under Executive Order 13132. by a Boeing Company Designated this AD; and, if the unsafe condition has not For the reasons discussed above, I Engineering Representative who has been certify that this proposed regulation (1) been eliminated, the request should include specific proposed actions to address it. authorized by the Manager, Seattle ACO, to is not a ‘‘significant regulatory action’’ make such findings. For a repair method to Compliance: Required as indicated, unless under Executive Order 12866; (2) is not be approved, the approval must specifically a ‘‘significant rule’’ under the DOT accomplished previously. To find and fix heat damage of the pylon reference this AD. Regulatory Policies and Procedures (44 skin and internal structure of the nacelle Alternative Methods of Compliance FR 11034, February 26, 1979); and (3) if struts, which could result in cracking or (c) An alternative method of compliance or promulgated, will not have a significant fracture of the struts, and consequent economic impact, positive or negative, reduced structural integrity and possible adjustment of the compliance time that on a substantial number of small entities separation of the strut and engine from the provides an acceptable level of safety may be under the criteria of the Regulatory airplane; accomplish the following: used if approved by the Manager, Seattle ACO. Operators shall submit their requests Flexibility Act. A copy of the draft Repetitive Inspections/Corrective Action regulatory evaluation prepared for this through an appropriate FAA Principal action is contained in the Rules Docket. (a) Within 6 months after the effective date Maintenance Inspector, who may add A copy of it may be obtained by of this AD: Do a detailed inspection of the comments and then send it to the Manager, pylon skin and internal structure of the contacting the Rules Docket at the Seattle ACO. nacelle struts adjacent to and aft of the Note 3: Information concerning the location provided under the caption precooler exhaust vent for heat discoloration, existence of approved alternative methods of ADDRESSES. wrinkling, and cracking, per the Work compliance with this AD, if any, may be Instructions of Boeing Special Attention List of Subjects in 14 CFR Part 39 obtained from the Seattle ACO. Service Bulletin 747–54–2210, dated Air transportation, Aircraft, Aviation December 19, 2001. Repeat the inspection at Special Flight Permit safety, Safety. least every 18 months. (d) Special flight permits may be issued in The Proposed Amendment Note 2: For the purposes of this AD, a detailed inspection is defined as: ‘‘An accordance with sections 21.197 and 21.199 Accordingly, pursuant to the intensive visual examination of a specific of the Federal Aviation Regulations (14 CFR authority delegated to me by the structural area, system, installation, or 21.197 and 21.199) to operate the airplane to Administrator, the Federal Aviation assembly to detect damage, failure, or a location where the requirements of this AD Administration proposes to amend part irregularity. Available lighting is normally can be accomplished. 39 of the Federal Aviation Regulations supplemented with a direct source of good Issued in Renton, Washington, on (14 CFR part 39) as follows: lighting at intensity deemed appropriate by November 19, 2002. the inspector. Inspection aids such as mirror, Vi L. Lipski, PART 39—AIRWORTHINESS magnifying lenses, etc., may be used. Surface Manager, Transport Airplane Directorate, DIRECTIVES cleaning and elaborate access procedures may be required.’’ Aircraft Certification Service. 1. The authority citation for part 39 (1) If any sign of heat discoloration is [FR Doc. 02–30027 Filed 11–26–02; 8:45 am] continues to read as follows: found, but there is no wrinkling: Before BILLING CODE 4910–13–P
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DEPARTMENT OF TRANSPORTATION Administration, 800 Independence You can also get a copy by sending a Avenue, SW., Washington, DC 20591; letter to the Federal Aviation Federal Aviation Administration telephone (202) 267–3845; facsimile Administration, Office of Rulemaking, (202) 267–5302. ARM–1, 800 Independence Avenue, 14 CFR Part 158 SUPPLEMENTARY INFORMATION: SW., Washington, DC 20591, or by calling (202) 267–9680. Make sure to [Docket No. FAA–2002–13918; Notice No. Comments Invited 02–19] identify the docket number, notice FAA invites interested people to take number, or amendment number of this RIN 2120–AH43 part in this proposed action by rulemaking. presenting written data, views, or Revisions to Passenger Facility arguments. We also invite comments Small Business Regulatory Enforcement Charge Rule for Compensation to Air about the environmental, energy, Fairness Act Carriers federalism, or economic impact that The Small Business Regulatory AGENCY: Federal Aviation might result from adopting the Enforcement Fairness Act (SBREFA) of Administration (FAA), DOT. proposals. Commenters should provide 1996 requires FAA to comply with ACTION: Notice of proposed rulemaking cost estimates for substantive small entity requests for information or (NPRM). comments. Commenters should send advice about compliance with statutes two copies of their remarks to the DOT and regulations within its jurisdiction. SUMMARY: FAA proposes to amend the Docket Office address mentioned above. Therefore, any small entity that has a passenger facility charge (PFC) Comments must identify the regulatory question regarding this document may regulation by changing the amount and docket or notice number. contact its local FAA official. Internet unit of collection that a carrier may We will file all comments, as well as users can find additional information on retain for collecting and handling a report summarizing each substantive SBREFA on FAA’s Web page at http:// (including remitting) PFC revenue. FAA public contact with FAA personnel www.faa.gov/avr/arm/sbrefa.htm and proposes to allow carriers to keep $0.10 about this proposed rulemaking, in the may send electronic inquiries to the of each PFC they collect in calendar docket. The docket is available for following Internet address: 9–AW– years 2002 through 2004. From 2005 public inspection before and after the [email protected]. forward, the amount will increase to comment closing date. $0.11 for each PFC collected. This FAA will consider all comments Background action is necessary to implement the received by the closing date before Statement of the Problem statutory requirement that the Secretary acting on this proposed rulemaking. We The Aviation Safety and Capacity of Transportation (whose authority has will consider comments filed late if Expansion Act of 1990 (ASCE Act), been delegated to the Administrator of possible without incurring expense or codified at 49 U.S.C. 40117, authorized FAA) establish by regulation a uniform delay. FAA may change the proposals in the passenger facility charge (PFC) amount that carriers may retain that this document because of the comments program. On May 29, 1991, the reflects the average necessary and received. Department of Transportation adopted reasonable expenses for collecting and Commenters wishing to receive regulations to establish the PFC handling PFCs. confirmation that FAA received their program. The regulations are codified at comments must include a self- DATES: Send comments by January 13, 14 CFR part 158. The Secretary of addressed, stamped postcard stating: 2003. Transportation (Secretary), by ‘‘Comments to Docket No. FAA–2002– ADDRESSES: Address your comments to regulations codified at 49 CFR 1.48(r), 13918.’’ We will date stamp and mail the Docket Management System, U.S. delegated authority to the FAA the postcard to the commenter. Department of Transportation, Room Administrator to allow a public agency Plaza 401, 400 Seventh Street, SW., Availability of Rulemaking Documents (as defined in 14 CFR 158.3) to impose Washington, DC 20590–0001. You must You can get an electronic copy of this a PFC of $1, $2, or $3 for each enplaned identify the docket number FAA–2002– notice using the Internet by taking the passenger at a commercial service 13918 at the beginning of your following steps: airport the public agency controls. comments, and you should send two (1) Select the search button on the Public agencies may use the money copies of your comments. If you wish to Department of Transportation’s from such PFC collections only to receive confirmation that FAA received electronic Docket Management System finance FAA-approved, eligible airport- your comments, include a self- (DMS) Web page (http://dms.dot.gov/ related projects, as defined at 49 U.S.C. addressed, stamped postcard. search). 40117(a)(3). To approve a project, FAA You may also file comments through (2) On the search page type in the last must determine that the project (1) the Internet at http://dms.dot.gov. You five digits of the Docket number shown preserves or enhances safety, security, may review the public docket at the beginning of this notice. Click on or capacity of the national air containing comments to this proposed ‘‘search.’’ transportation system; (2) reduces noise rule in person in the Docket Office (3) On the next page, which contains from an airport that is part of such between 9 a.m. and 5 p.m., Monday the Docket summary information for the system; or (3) provides opportunities for through Friday, except Federal holidays. Docket you selected, click on the increased competition between or You will find the Docket Office in Room document number of the item you wish among carriers. Plaza 401 of the Nassif Building at the to view. The ASCE Act directed the Secretary U.S. Department of Transportation at You can also get an electronic copy to issue regulations requiring air the address listed above. You may also using the Internet through the Office of carriers, foreign air carriers, and their review public dockets on the Internet at Rulemaking’s Web page at http:// agents, collectively referred to as http://dms.dot.gov. www.faa.gov/avr/armhome.htm or the ‘‘carriers,’’ to collect PFCs and pay them FOR FURTHER INFORMATION CONTACT: Government Printing Office’s web page promptly to public agencies. The Joseph Hebert, Passenger Facility Charge at http://www.access.gpo.gov/su_docs/ regulations were also to establish a Branch, APP–530, Federal Aviation aces/aces140.html. uniform amount, reflecting the average
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reasonable and necessary expenses of detailed data from carriers that, in total, recordkeeping, or auditing. Though collecting and handling the PFC, that represented at least 75 percent of the incremental cost compensation does not carriers could retain from PFCs enplanements at PFC-collecting airport include an allocation for indirect costs collected. This amount, referred to in 14 locations. FAA needed enough such as utilities, officer salaries, and CFR part 158 as ‘‘carrier compensation,’’ information on current industry costs to other administrative expense, it will as discussed below, is to be determined decide if the authorized handling fee of compensate air carriers for the by the Secretary net of interest earned $0.08 continued to reflect average additional costs of handling and on PFC revenue between the time of necessary and reasonable expenses for remitting PFC’s;’’ and collection and payment. collecting and handling and remitting • ‘‘[A]ccompanied by an independent FAA carried out this requirement in PFCs. FAA determined that a smaller audit opinion stating the costs are section 158.53 of the regulations, sample, if it included a disproportionate supportable, presented in accordance entitled ‘‘collection compensation.’’ representation from carriers with higher with generally accepted accounting Section 158.53 allowed carriers initially PFC handling costs, would not provide principles, and in compliance with the to keep ‘‘[a]s compensation for an accurate average handling cost requirement of the proposed collecting, handling and remitting the calculation for the industry. In the rulemaking.’’ PFC revenues’’ $0.12 of each PFC ANPRM, FAA also invited comments on A copy of this memorandum is remitted, in part to recover the expenses other issues about PFC revenues and included in the docket for this of setting up their systems to process changes in part 158 to address new proceeding. and record charges under the PFC legislation and industry practices. FAA Request for Cost Data program. On June 28, 1994, under the withdrew this ANPRM on April 10, terms of § 158.53, compensation 2000 (65 FR 18932), because carrier FAA adopted the OIG’s dropped from $0.12 to $0.08 for each responses fell below the 75 percent recommendations in this rulemaking. PFC collected, reflecting completion of minimum response requested by FAA. Specifically, FAA determined that a recoupment period from program The Wendell H. Ford Aviation consideration of incremental costs start-up costs. Currently, carriers may Investment and Reform Act for the 21st would best implement the statutory keep $0.08 of each PFC remitted. For Century (AIR–21) (Pub. L. 106–181), standard that the handling fee reflect convenience, we refer to this amount as signed into law on April 5, 2000, ‘‘necessary costs.’’ FAA also determined the ‘‘handling fee’’ or ‘‘PFC handling changed the PFC program. Public an independent audit opinion would fee,’’ as well as ‘‘carrier compensation,’’ agencies may now collect PFCs of $4 or ensure that the calculation of average in the remainder of this discussion. $4.50. On May 30, 2000, FAA issued a expenses was based on reliable carrier Section 158.53 (b) also authorizes final rule that amended part 158. The cost data. carriers to keep any interest or other amendment incorporated administrative Beginning in April 2000, FAA investment return earned on PFC and statutory changes in the procedures consulted with the carrier industry revenue between the time the carrier to set up PFCs based on AIR–21 and through ATA to identify cost categories collects and remits it to the airport other recent acts by Congress and compatible with carrier cost accounting public agency. records of decision by FAA. The rule practices that would meet the On May 27, 1994, the Air Transport became effective on June 29, 2000. specifications of OIG. FAA gathered this Association of America (ATA) The issue of carrier compensation information before starting this petitioned FAA to amend § 158.53 by arose again during the congressional rulemaking to avoid the data collection extending the handling fee of $0.12 for deliberations leading up to the passage problems experienced in its previous three more years. ATA proposed to file of AIR–21. In report language (House rulemaking effort. In addition, FAA comments after the three-year extension, Report 106–513) which accompanied consulted with independent showing whether the airline industry AIR–21, Congress noted that several accountants familiar with the had fully recovered the cost necessary to carriers communicated to the conferees accounting methods of carriers. FAA run the PFC collection program. their views that carrier compensation at examined the extent to which Further, ATA requested that FAA $.08 for each PFC remitted is too low. independent accountants could amend § 158.53(a) to allow carriers to While the conferees did not evaluate the determine if costs reported by carriers keep the handling fee for each refunded correctness of these claims, they noted are justifiable. Based on these contacts, PFC, as well as each PFC remitted. FAA that FAA should give carriers the FAA was able to assemble cost published in the Federal Register a opportunity to prove their correctness in categories and formats, as well as summary of ATA’s petition on June 24, a rulemaking action. The report, HR recommended accounting procedures, 1994 (59 FR 32668). Recognizing that 106–513 encouraged FAA to make its to ensure the data evaluated in this the standard for setting the level of the final decision within 189 days from the NPRM are comparable across carriers handling fee was ‘‘average necessary time carriers present the evidence and conforms to OIG’s recommendation. and reasonable expenses,’’ FAA asked necessary for evaluation of their claims. On October 19, 2000, FAA sent letters carriers and public agencies to send On April 27, 2000, the Office of the to the largest domestic ATA-member specific data to enable the agency to Inspector General (OIG) of the carriers. FAA asked the carriers to determine this amount. FAA received Department of Transportation issued a voluntarily send their 1999 PFC twelve comments in response to the memorandum to FAA. In that collection and handling cost data to notice, but determined the comments memorandum, OIG provided FAA. These carriers account for most of did not contain enough information to recommendations on the conduct of the the PFCs collected nationally. At the enable FAA to decide on a rate of proposed rulemaking on PFC collection same time, FAA asked regional and compensation that met this standard. costs. To ensure that FAA receives the foreign carriers through their trade On April 16, 1996, FAA issued an information necessary for evaluation, associations (Regional Air Carriers advance notice of proposed rulemaking OIG suggested that cost data be— Association and International Air (ANPRM) (61 FR 16678). In that notice, • ‘‘[L]imited only to those Transport Association, respectively) if FAA provided guidance on the quantity incremental costs that are directly they would voluntarily send their cost and quality of information needed to associated with PFC collection, data. None of the regional or foreign decide ATA’s petition. FAA requested handling, remittance, reporting, carriers provided data. The reporting
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ATA carriers, however, included costs petition FAA for a separate rulemaking the categories, formats, and procedures of their subsidiary regional carriers. to address possible under compensation suggested by FAA. These carriers were The FAA’s letter to the carriers in those years. Alaska Airlines, American Airlines, suggested the cost categories and Initially, FAA considered asking Continental Airlines, Delta Air Lines, instructions for collecting incremental carriers to have cost data audited before Northwest Airlines, Southwest Airlines, costs associated with PFC collection, submission to insure its accuracy. TransWorld Airlines, United Airlines, handling, remittance, reporting, Consultation with the independent and U.S. Airways. Each of these airlines recordkeeping, or auditing. The cost accountants for the carrier industry, sent its data to its independent however, found the cost of getting an categories were: Credit card fees; audit accountant, who then provided its audit on such cost items would prohibit fees; PFC disclosure; reservations; report using the agreed-upon carriers from conducting such an audit. passenger services; revenue accounting, procedures. The independent data entry, accounts payable, tax and After consulting with OIG and the airline independent accountants, FAA accountants sent these reports with the legal; corporate property department; carrier data submissions to FAA.The training reservations, ticket agents, and decided the data could be used if nine responding carriers reported that in other departments; carrier ongoing carriers and their independent auditors 1999 they remitted 436,659,521 PFCs to information systems; computer followed certain procedures (referred to airports, representing 84 percent of the reservation system ongoing; PFC as ‘‘agreed-upon procedures’’). absorption; Airline Tariff Publishing Therefore, the letter told each carrier to calculated total of 518,731,500 PFCs Corporation; and Airline Reporting give its cost data to its independent sent nationally in 1999. Thus, the cost Corporation. The FAA letter also accountant. In turn, the accountant data sent by the nine carriers suggested categories for implementation would use the approved procedures to significantly exceed the 75 percent costs, including carrier one-time prepare a report similar to the agreed- threshold requested in the previous information systems and one-time upon procedures report in the docket of ANPRM data collection effort computer reservation costs. In addition, this proceeding. undertaken by FAA. FAA has no reason To ensure that carriers send data in a FAA requested data on interest income to believe that those collecting carriers consistent format, FAA provided a on unremitted PFC funds. An example not presenting data (including sample spreadsheet that included cost of the letter is included in the docket of international and regional carriers) categories. FAA asked carriers to this proceeding. would have collection and remittance estimate what 1999 costs would have costs significantly different than those In its letter to the carriers, FAA been for items such as ‘‘credit card fees’’ emphasized that carriers will not and ‘‘interest revenue on float’’ if the of the reporting carriers. receive compensation from PFC revenue carrier had collected $4.50 PFCs at all People interested in reviewing the for an item just because the item airports that year. FAA also offered the individual carrier data submissions and appeared on the list of cost definitions. carriers the opportunity to send out-year the procedures reports may inspect FAA included some items because at projections of costs. Carrier independent them at the U.S. Department of least one carrier proposed the item as a accountants could not, however, apply Transportation Dockets, Docket No. collection or handling cost. FAA noted the agreed-upon procedures to out-year FAA–2002–13918, 400 Seventh Street, that not all interested parties will agree projections that would be cost estimates. SW., Room Plaza 401, Washington, DC with the items included in cost FAA invites comments on the definitions. FAA requested data on all 20590. In addition, individuals may categories and agreed-upon procedures. access electronic copies through the cost items listed above, however, to In addition, any carrier who has not avoid collecting more data later if FAA Docket Management System Internet already submitted data may submit their Web page located at http//dms.got.gov. finds that each cost item qualifies as a own data (that conforms to the agreed- ‘‘necessary and reasonable expense of upon procedures included in the docket FAA reviewed the carrier’s cost data collecting, handling and remitting of this proceeding) during the comment for consistent data categories and PFCs.’’ period. Any data submitted will be formats. Then, FAA consolidated all the In the letter, FAA also said that it was considered to the extent possible. information into a single summary table not seeking cost data for years before (Table 1). This table summarizes the raw Receipt and Initial Processing of Cost 1999. FAA stated that if a carrier found actual cost data for 1999, with estimated Data evidence of additional costs exceeding costs of imposing the new $4.50 PFC the amount authorized for retention in Nine carriers provided cost data to level. years before 1999, the carrier could FAA by the end of January 2001 under
TABLE 1.—1999 TOTAL COSTS OF PFC HANDLING, ALL REPORTING AIR CARRIERS
1999 actual costs 1 1999 pro-forma 2 Implementation 3 PFC collection cost categories Total cost ($) % total Total cost ($) % total Total cost ($) % total
Credit Card Fees ...... 24,311,612 43.7 33,390,598 52.8 ...... Audit Fees (External) ...... 423,502 0.8 296,166 0.5 85,182 2.5 Disclosure Costs ...... 6,218,343 11.2 6,191,343 9.8 ...... Reservations ...... 9,751,032 17.5 9,317,814 14.7 ...... Passenger Services ...... 5,226,254 9.4 5,092,650 8.1 ...... Data Entry: Internal ...... 43,609 0.1 29,605 0.0 ...... Other ...... 0.0 ...... 0.0 ...... Revenue Accounting...... 857,925 1.5 728,507 1.2 6,875 0.2 Accounts Payable ...... 109,905 0.2 71,390 0.1 ...... Tax & Legal ...... 77,359 0.1 75,859 0.1 ...... Corporate Property Department ...... 323,570 0.6 282,195 0.4 ......
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TABLE 1.—1999 TOTAL COSTS OF PFC HANDLING, ALL REPORTING AIR CARRIERS—Continued
1999 actual costs 1 1999 pro-forma 2 Implementation 3 PFC collection cost categories Total cost ($) % total Total cost ($) % total Total cost ($) % total
Training: Reservations ...... 99,154 0.2 99,158 0.2 49,675 1.4 Other ...... 413 0.0 413 0.0 ...... Ticket Agents ...... 782,336 1.4 445,625 0.7 55,424 1.6 Internal On-Going IT ...... 552,695 1.0 488,602 0.8 ...... CRS On-Going fees ...... 5,823,761 10.5 5,732,145 9.1 ...... ATPCO ...... 5,407 0.0 4,643 0.0 135 0.0 ARC + BSP ...... 988,694 1.8 946,262 1.5 77,712 2.2 Internal One-Time IT update ...... 0.0 ...... 0.0 3,020,947 87.2 CRS One-Time update ...... 0.0 ...... 0.0 168,870 4.9 Interest Revenue on Float ...... (7,070,099) n/a (9,969,952) n/a ......
Total costs ...... 55,595,572 100 63,192,975 100 3,464,820 100
Total costs less interest ...... 48,525,473 n/a 53,223,024 n/a 3,464,820 n/a
Number of PFCs Remitted ...... 436,659,521 ...... 406,526,509 ...... 448,929,355 Number of PFCs Collected ...... 485,238,737 ...... 452,173,384 ...... 505,223,269 ...... Percentage of PFCs Refunded ...... 10.0% ...... 10.1% ...... 11.1% ...... Range of Refunded Rates ...... 5.4% to ...... 5.4% to ...... 5.4% to ...... 20.2% 20.2% 20.2% Cost Less Interest Per PFC Remitted ...... $0.1111 ...... $0.1309 ...... $0.0077 ...... Cost Less Interest Per PFC Collected ...... 0.1000 ...... 0.1177 ...... 0.0069 ...... PFC Absorption ...... 30,495,212 ...... Cost Per PFC Remitted ...... 0.0698 ...... Cost Per PFC Collected ...... 0.0628 ...... 1 Actual costs incurred. Agreed-upon procedures have been applied by the independent accountant to actual 1999 costs. Enplanement data are for 1999. 2 Assumes the same volume as 1999, but with 100 of PFCs Collected at $4.50 for each PFC—this only impacts Credit Card Fees and Interest Revenue. One carrier did not submit data. 3 Costs associated with the implementation of the new $4.50 PFC rate in years 2000 and 2001. This column is not year specific. One carrier did not submit data. Enplanement data are for 2000.
The same data, presented in terms of and remitted, are presented in Tables 2 the average cost for each PFC collected and 3.
TABLE 2.—AVERAGE 1999 PFC HANDLING COSTS
1999 actual costs—average cost per collected PFC Average PFC collection cost categories cost per Standard Highest Lowest remitted Average deviation reported reported PFC
Credit Card Fees ...... $0.0501 $0.0039 $0.0588 $0.0446 $0.0557 Audit Fees (External) ...... 0.0009 0.0012 0.0039 0.0002 0.0010 Disclosure Costs ...... 0.0128 0.0286 0.0874 0.0002 0.0142 Reservations ...... 0.0201 0.0131 0.0381 0.0000 0.0223 Passenger Services ...... 0.0108 0.0101 0.0292 0.0000 0.0120 Data Entry: Internal ...... 0.0001 0.0002 0.0004 0.0000 0.0001 Other ...... 0.0000 0.0000 0.0000 0.0000 0.0000 Revenue Accounting ...... 0.0018 0.0015 0.0041 0.0002 0.0020 Accounts Payable ...... 0.0002 0.0007 0.0020 0.0000 0.0003 Tax & Legal ...... 0.0002 0.0002 0.0005 0.0000 0.0002 Corporate Property Department ...... 0.0007 0.0005 0.0014 0.0000 0.0007 Training: Reservations ...... 0.0002 0.0004 0.0012 0.0000 0.0002 Other ...... 0.0000 0.0000 0.0000 0.0000 0.0000 Ticket Agents ...... 0.0016 0.0033 0.0102 0.0000 0.0018 Internal On-Going IT ...... 0.0011 0.0015 0.0042 0.0000 0.0013 CRS On-Going fees ...... 0.0120 0.0073 0.0189 0.0000 0.0133 ATPCO ...... 0.0000 0.0000 0.0000 0.0000 0.0000 ARC + BSP ...... 0.0020 0.0018 0.0057 0.0000 0.0023 Internal One-Time IT update. CRS One-Time update. Interest Revenue on Float ...... (0.0146) 0.0029 (0.0089) (0.0185) (0.0162)
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TABLE 2.—AVERAGE 1999 PFC HANDLING COSTS—Continued
1999 actual costs—average cost per collected PFC Average PFC collection cost categories cost per Standard Highest Lowest remitted Average deviation reported reported PFC
Total Average Costs ...... 0.1146 0.0237 0.1594 0.0837 0.1273
Total Average Costs Less Interest ...... 0.1000 0.0228 0.1439 0.0705 0.1111
Number of PFCs Remitted ...... 436,659,521 Number of PFCs Collected ...... 485,238,737 % of PFCs Refunded ...... 10.0% Range of Refunded Rates ...... 5.4% to 20.2%
PFC Absorption ...... 0.0628 0.1625 0.4457 0.0000 0.0698
Values shown as $0.0000 on this table calculation purposes), or are a statistically insignificant (i.e. less than were either reported as zero, not calculated figure determined to be $0.0001). reported (assumed to be zero for
TABLE 3.—1999 $4.50 PFC PRO-FORMA AND IMPLEMENTATION COSTS
1999 Pro-Forma 1 Implementation costs Average Average Average Average All Airlines—PFC Collection Cost Categories cost per cost per cost per cost per collected remitted collected remitted PFC PFC PFC PFC
Credit Card Fees/Bad Debt ...... $0.0738 $0.0821 N/A N/A Audit Fees (External) ...... N/A N/A $0.0002 $0.0002 Disclosure Costs ...... N/A N/A N/A N/A Reservations ...... N/A N/A N/A N/A Passenger Services ...... N/A N/A N/A N/A Data Entry: Internal ...... N/A N/A N/A N/A Other ...... N/A N/A N/A N/A Revenue Accounting ...... N/A N/A 0.0000 0.0000 Accounts Payable ...... N/A N/A N/A N/A Tax & Legal ...... N/A N/A N/A N/A Corporate Property Department ...... N/A N/A N/A N/A Training: Reservations ...... N/A N/A 0.0001 0.0000 Other ...... N/A N/A N/A N/A Ticket Agents ...... N/A N/A 0.0001 0.0001 Internal On-Going IT ...... N/A N/A 0.0000 0.0001 CRS On-Going fees ...... N/A N/A N/A N/A ATPCO ...... N/A N/A 0.0000 0.0000 ARC + BSP ...... N/A N/A 0.0002 0.0000 Internal One-Time IT update ...... N/A N/A 0.0060 0.0066 CRS One-Time update ...... N/A N/A 0.0003 0.0006 Interest Revenue on Float ...... (0.0220) (0.0245) NA NA
Total Average Costs 1 ...... 0.1383 0.1537 0.0069 0.0077
Total Average Costs Less Interest ...... 0.1163 0.1292 0.0069 0.0077
Number of PFCs Remitted ...... 406,526,509 448,929,355 Number of PFCs Collected ...... 452,173,384 505,223,269 % of PFCs Refunded ...... 10.1% 11.1% Range of Refunded Rates ...... 5.4% to 20.2% 5.4% to 20.2% Values shown as $0.0000 on this table are calculated figures determined to be statistically insignificant (i.e. less than $0.0001). 1 Includes actual 1999 costs for carriers reporting pro-forma data incurred for all categories except credit card fees and interest revenue. Agreed-upon procedures have been applied by the independent accountant to actual 1999 costs, but not to pro-forma $4.50 estimates.
Analysis of 1999 Cost Data incremental costs associated with PFC the PFC from other carrier revenues collection and handling, and thus valid because the markets are too price The carriers gave data according to average necessary and reasonable sensitive for the carrier to pass the PFC the formats requested. FAA examined expenses of PFC collection and along to consumers. In this case, the the presented data and proposes to handling. carriers wish to treat such absorbed accept all cost categories suggested costs as administrative expenses (either in whole or in part), except for Some carriers reported that, in some the PFC absorption category, as valid air service markets, they must ‘‘absorb’’
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associated with PFC collection and found that five cost categories account carriers combined to calculate the handling. for 92.3 percent of PFC collection and handling fee. We have therefore reduced FAA allowed carriers to present handling expenses. These categories the estimate for total cost of disclosure estimates of ‘‘absorbed’’ PFC costs as include credit card fees, disclosure for all nine carriers to $0.0024 for each part of this data collection effort, but costs, reservations, passenger services, PFC collected. That amount is equal to noted that FAA may discount such data. and CRS fees. twice the combined $.0012 for each PFC In particular, it is unclear why the PFC The credit card fee was the largest collected charge for all carriers except should bear the burden of price single cost item that FAA proposes to Southwest Airlines. FAA’s eventual sensitivity in a market. FAA asked accept, accounting on average for 43.7 acceptance of a significantly higher carriers to show why ‘‘absorption’’ is an percent of PFC collection and handling disclosure cost, as identified by incremental cost of collecting, handling, costs. That amount equals just over Southwest Airlines, depends, in part, on remitting, reporting, recordkeeping, $0.05 for each PFC collected or $.056 for that carrier’s or other carriers’ and/or auditing the PFC. FAA also each $3 PFC remitted to airport public submission of data supporting this requested that carriers send detailed agencies. FAA found a high degree of claim. explanations of their method for uniformity in the cost amounts the nine determining markets where absorption carriers allocated to this item. The fourth largest cost item is the on- occurs and for calculating absorption. The next largest cost item is going CRS (Computer Reservation Four carriers sent information on PFC reservation services, at 17.5 percent of Systems) expense, at 10.5 percent of absorption expenses. One of these PFC collection and handling costs, PFC collection and handling costs. This carriers accounted for 63 percent of the accounting on average for $.02 for each amount accounts, on average, for $.012 $30.5 million of such charges identified. PFC collected and $0.022 for each PFC of each PFC collected and $0.013 of On average, for all carriers, these remitted. Reservations charges include each PFC remitted. Air carriers incur charges would add $0.063 to the cost of the cost of increased telephone ‘‘talk on-going CRS costs, in the form of each PFC collected nationally. For the time’’ with airline customers explaining booking fees, for using the CRS. These one carrier accounting for most of the PFCs to customers when they make costs do not include the one-time absorption cost, the cost would amount airline reservations by telephone. Air charges associated with reprogramming $0.42 for each PFC collected by that carriers considered, in some degree, the the CRS software to allow a $4.50 PFC carrier. following items: Total reservation calls or other changes associated with AIR– The carriers presenting PFC handled; PFC calls handled; seconds for 21. absorption cost data did not provide each normal call; difficult calls handled; The fifth and last major cost item is information on how the absorption cost seconds for each difficult call; call passenger services. This item represents is related to the cost of collecting and hours; and average wage rate per hour. 9.4 percent of PFC collection and handling the PFC. One carrier imputed FAA found significant variability among handling costs, accounting on average an $0.08 charge for each PFC it refunded carriers in estimates of this cost item, for $.011 of each PFC collected and to passengers as an absorbed cost, in ranging from $0.00 to $0.038 with a $0.012 of each PFC remitted. Passenger that it did not received the $0.08 standard deviation of $.013 around the service costs are attributable to handling fee for these collections. average. increased face-to-face time with airline However, FAA notes that this imputed The third largest cost item in the raw customers. FAA found significant charge is not an actual cost of collecting data is disclosure costs, at 11.2 percent variability in estimates of this cost item, and handling PFCs. Air carriers also of PFC collection and handling costs. ranging from $0.00 to $0.029 with a have not shown why absorption costs That amount equals, on average, $.013 standard deviation of $.010 around the should not be associated with some for each PFC collected and $0.014 for average. other cost center of the carrier. Further, each PFC remitted. Disclosure costs are the carriers did not explain their attributable to FAA requirement that FAA notes that several carriers may methods for determining markets where carriers provide notice to the passenger have allocated cost items to the absorption occurs and or their methods that PFC fees may be applicable to the passenger services category that other for calculating absorption. FAA has passenger. One carrier (Southwest carriers allocated to the reservations determined there is no reason to classify Airlines) accounted for 91 percent of the category. Combined, the reservations the charge of a ticket price adjustment total reported disclosure costs, but only and passenger services categories vary as an expense associated with PFC 13 percent of the total PFCs reported less than they do independently among collection and handling (including collected by the nine carriers. the nine carriers. The combined average remitting, reporting, recordkeeping, FAA notes that Southwest’s cost has a standard deviation of $0.014 and/or auditing.) FAA finds it more independent accountant, using the compared to a mean of $0.025. suitable to classify such a charge as one agreed-upon procedures, accepted the The remaining 13 cost categories associated with providing air service, carrier’s claim of disproportionately collectively account for less than 8 such as company overhead, fuel, labor high disclosure costs. Moreover, the percent of total cost of collecting and expense, or airport rates and charges. reason provided for the high disclosure Based on the foregoing, FAA proposes cost, that Southwest Airlines relies handling PFCs. No one category exceeds to exclude PFC absorption from the disproportionately on television fare 2 percent. calculation of average, reasonable, and advertising as causing the higher cost, is Table 4 shows FAA’s proposed necessary expenses of PFC collection not implausible. Consequently, FAA adjustments to Table 1, reflecting the and handling. proposes, on a preliminary basis, to set exclusion of claimed ‘‘PFC absorption’’ FAA reviewed the non-absorption disclosure costs for this carrier at a level expenses and the proposed reduction of 1999 data reported by carriers and equal to the disclosure costs for all other PFC disclosure costs.
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TABLE 4.—1999 TOTAL COSTS OF PFC HANDLING, ALL REPORTING AIR CARRIERS
1999 actual costs 1999 Pro-Forma Implementation PFC collection cost categories Total cost ($) % total Total cost ($) % total Total cost ($) % total
Credit Card Fees/Bad Debt Exp...... 24,311,612 48.1 33,390,598 57.5 ...... Audit Fees (External) ...... 423,502 0.8 296,166 0.5 85,182 2.5 Disclosure Costs 1 ...... 1,159,495 2.3 1,105,495 1.9 ...... Reservations ...... 9,751,032 19.3 9,317,814 16.0 ...... Passenger Services ...... 5,226,254 10.3 5,092,650 8.8 ...... Data Entry: Internal ...... 43,609 0.1 29,605 0.1 ...... Other ...... 0.0 ...... 0.0 ...... Revenue Accounting...... 857,925 1.7 728,507 1.3 6,875 0.2 Accounts Payable ...... 109,905 0.2 71,390 0.1 ...... Tax & Legal ...... 77,359 0.2 75,859 0.1 ...... Corporate Property Department ...... 323,570 0.6 282,195 0.5 ...... Training: Reservations ...... 99,154 0.2 99,158 0.2 49,675 1.4 Other ...... 413 0.0 413 0.0 ...... Ticket Agents ...... 782,336 1.5 445,625 0.8 55,424 1.6 Internal On-Going IT ...... 552,695 1.1 488,602 0.8 ...... CRS On-Going fees ...... 5,823,761 11.5 5,732,145 9.9 ...... ATPCO ...... 5,407 0.0 4,643 0.0 135 0.0 ARC + BSP ...... 988,694 2.0 946,262 1.6 77,712 2.2 Internal One-Time IT update ...... 0.0 ...... 0.0 3,020,947 87.2 CRS One-Time update ...... 0.0 ...... 0.0 168,870 4.9 Interest Revenue on Float ...... (7,070,099) n/a (9,969,952) n/a ......
Total Costs 2 ...... 50,536,723 100 58,107,127 100 3,464,820 100
Total Costs Less Interest ...... 43,466,624 n/a 48,137,175 n/a 3,464,820 n/a
Number of PFCs Remitted ...... 436,659,521 ...... 406,526,509 ...... 448,929,355 ...... Number of PFCs Collected ...... 485,238,737 ...... 452,173,384 ...... 505,223,269 ...... Percentage of PFCs Refunded ...... 10.0 ...... 10.1 ...... 11.1 ...... Range of Refunded Rates ...... 5.4 to 20.2 ...... 5.4 to 20.2 ...... 5.4 to 20.2 ...... Cost Less Interest Per PFC Remitted ...... $0.0995 ...... $0.1184 ...... $0.0077 ...... Cost Less Interest Per PFC Collected ...... 0.0896 ...... 0.1065 ...... 0.0069 ...... 1 Disclosure costs adjusted to equal two times the reported disclosure costs of all reporting carriers except for Southwest Airlines. See discus- sion on disclosure costs. 2 Total costs do not include PFC absorption costs reported by some carriers. See discussion on PFC absorption costs.
Analysis of 1999 Interest Income $0.0995 for each PFC remitted in 1999. excluded the data from the non- We base this amount on the adjusted Interest earned on the PFC revenue reporting carrier, all data other than values in Table 4. This amount collected by the carrier but not yet credit card fees and interest income are compares to the $0.08 for each PFC remitted to the airport public agencies identical between 1999 actual and the remitted currently allowed under the forms a portion of the collection $4.50 pro forma data for the remaining PFC regulation for each PFC remitted. compensation carriers are entitled to eight carriers. This information provided a reference under section 158.53. As part of the The credit card fee expense becomes point for the next step in FAA’s process. analysis of the total collection a significantly larger item in PFC compensation for the carriers, FAA also Analysis of ‘‘Pro Forma’’ $4.50 Costs handling costs at the $4.50 PFC level requested information on the amount of and Interest Income allowed by AIR–21. This is because the interest earned by the carriers on FAA sought information on projected fee paid by the carriers to the credit card unremitted PFC revenue. FAA or ‘‘pro forma’’ costs that would be company is a percentage of the amount determined that this interest amounted associated with handling $4.50 PFC charged. The credit card and bad debt to $0.0146 for each $3 PFC in 1999. This levels. FAA specifically asked about the expense items for the $4.50 PFC level amount is roughly equivalent to what effect of the $4.50 level on credit card would cost carriers, on average, just FAA had estimated based on an fees and interest earned on higher PFC over $0.074 for each PFC collected or assumed retention period of 45 to 50 balances. We expected that all other $0.082 for each PFC remitted. We have days and a 4 percent annual interest costs would not vary significantly based these amounts on the pro forma rate. The variability around this average between PFC levels. estimates provided by eight of the nine is low. The highest reported interest is To simplify presentation of the ‘‘pro reporting carriers. FAA notes the $0.0185 at a 5 percent interest rate. The forma’’ costs, the carriers included their independent accountants did not lowest reported interest rate was estimates for credit card fees and evaluate these amounts. These amounts $0.0089 at a 2.5 percent interest rate. interest income with actual 1999 data compare to an average credit card fee of Total adjusted average cost for each for the other cost items. One of the nine $0.0501 for each PFC collected and PFC collected, minus interest earned on carriers reporting 1999 actual data did $0.0557 for each PFC remitted at the $3 the PFC while held by the carrier, was not report the pro forma estimate for the PFC level. The estimates at the two PFC $0.0896 for each PFC collected and $4.50 PFC level. FAA found that, if it levels appear consistent. The actual fee
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in 1999 equates to about 1.67 percent of carriers was only $.0077 for each PFC carriers. One large carrier reported a the $3 PFC, whereas the estimated pro collected. That means that carriers refund rate of only 5.4 percent, whereas forma fee equates to 1.64 percent of the could recover the total cost of another large carrier had a refund rate $4.50 PFC. The slight difference implementation with a one-year of 20.2 percent. compared to the $3 PFC amount may be handling fee surcharge of less than one Section 40117 of title 49 of the U.S. attributable to the one carrier not cent. Code requires FAA to set up a reporting. It is significant to note that at Although the independent the $4.50 level, the credit card fee alone accountants did not review the set up compensation fee that is uniform and would exceed the $0.08 compensation costs, the low cost claimed, particularly reflects the average necessary and for each PFC remitted currently allowed for reimbursement of computer service reasonable expenses incurred in under § 158.53. providers, was below FAA’s collecting and handling the PFC, minus FAA estimated interest earned on the expectations given the size of the interest accrued before remittance. PFC revenue collected by the carrier but reprogramming effort. Therefore, FAA cannot set two or more not yet remitted to the airport public compensation rates based on the Analysis of Ticket Refund Rates agencies to be, on average, $0.0220 for different needs of each carrier. FAA each collected $4.50 PFC and $0.0245 The data we received from the carriers does, however, have the choice of for each remitted $4.50 PFC. This reveals an overall average ticket refund setting one fee to compensate carriers amount is about 52 percent more than rate of 10 percent. Because a carrier either for each PFC collected or each estimated for a $3 PFC level. FAA notes must handle refunded tickets twice, a PFC remitted. If FAA elects to that one carrier did not report a pro higher volume of refunded tickets compensate carriers for each PFC forma estimate of interest. means higher costs for the carrier. The collected, carriers with high refund rates In summary, collection and handling data format specified by FAA did not would not be penalized, and carriers costs minus interest income for a $4.50 specifically ask the carriers to send data with low refund rates would not receive PFC level would yield a cost of $0.1065 on the costs associated with refunded a windfall. for each PFC collected and $0.1184 for tickets because gathering the data would each PFC remitted. burden the carriers. Rather, the carriers Calculation of PFC Handling Fee included the costs associated with Analysis of $4.50 Implementation Costs refunds in their overall cost data. The average PFC handling fee FAA requested data from the carriers FAA notes that compensating carriers reported by the carriers was $0.0896 for on the total cost of setting up the $4.50 for each PFC collected compared to each $3 PFC collected in 1999 and PFC allowed by AIR–21. Specifically, compensating them for each PFC $0.0995 for each $3 PFC remitted in FAA asked how much it cost the remitted are equally valid means of 1999. (See the 1999 actual costs at the carriers to change their computer compensation. Suppose total industry bottom of Table 4). We propose to systems and other systems such as the costs, minus interest earned, for subtract interest earned on collected CRS providers, the Airline Tariff handling PFCs were $50 million where PFCs from this amount and excluded Publishing Company (ATPCO), and the carriers collected 500 million PFCs and ‘‘PFC absorption’’ expenses. The Airline Reporting Corporation (ARC). remitted 416 million PFCs. In this amount also includes a downward Air carriers and other data providers example, carriers refunded 84 million adjustment for disclosure costs. Had a had to change programming codes and PFCs after collections. The carriers $4.50 PFC been in place that year at all terminal screen formats to allow for four collectively would receive the same airports where PFCs are collected, the data columns. Previously, the systems compensation, $50 million, from carriers estimate the increase in their only needed a single column for the $1, collecting airports if the handling fee costs, minus interest, would have raised $2, and $3 PFC levels. Now, computer were set at $0.10 for each PFC collected their overall cost to $0.1065 for each systems need columns for three or $0.12 for each PFC remitted. If all $4.50 PFC collected and $0.1184 for numbers and a decimal point for the carriers had equivalent refund rates, all each $4.50 PFC remitted. (See the 1999 $4.50 PFC charge. Air carriers and other would receive equal compensation for pro forma costs at the bottom of Table data providers completed the expenses associated with PFC 4). A surcharge would be necessary to reprogramming by April 1, 2001; refunds under either method. compensate carriers for the one-time however, carriers presented their FAA notes that selection of a standard cost of setting up the $4.50 PFC level. handling cost data to FAA in December fee for each PFC collected or for each 2000 and January 2001 while efforts PFC remitted may yield different Selecting the right compensation level were still underway. FAA, therefore, did amounts of compensation to individual clearly depends on the assumption not require the independent accountants carriers. In particular, a compensation made about what mix of $4.50 and $3 to apply the agreed-upon procedures to standard for each PFC remitted, PFCs carriers will collect. FAA these cost items. calculated from total industry handling estimates that nearly 50 percent of all Cost items claimed by the carriers for costs and PFC remittances, assumes all collected PFCs will be at $4.50 in 2002, setting up the increased PFC levels carriers have the same PFC refund rates. 75 percent will be at $4.50 in 2003, and included charges for revenue Air carriers with higher ticket refund 90 percent will be at the $4.50 level in accounting, training of reservations and rates and higher PFC refund-related 2004, and almost 100 percent thereafter. ticket agents, fees to ATPCO, ARC, and handling costs would receive less Therefore, FAA proposes to phase in a CRS vendors, one-time information overall compensation relative to their new collection fee based on the technology updates, and audit fees. One actual costs than would carriers with estimated mix of $3 and $4.50 of these cost items, one-time low refund rates if compensated for collections over the next several years. information technology updates, each PFC remitted. This assumes Table 5 summarizes FAA’s proposal for accounted for 87 percent of the set-up everything else is equal. The data compensating carriers for each PFC costs. After analyzing the carrier data, received from the carriers show that collected or each PFC remitted. FAA found the total set up cost for refund rates vary significantly among
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TABLE 5.—ACTUAL COSTS AND PROPOSED FEES
Year Year Year Year 2002 1 2003 2 2004 3 2005 4
Compensation Based on PFCs Collected: 1999 Cost Per PFC Collected at $3 (Actual) ...... $0.0896 $0.0896 $0.0896 $0.0896 1999 Cost Per PFC Collected at $4.50 (Pro-Forma) ...... 0.1065 0.1065 0.1065 0.1065 Weighted Cost Per PFC Collected (Actual) ...... 0.0981 0.1023 0.1048 0.1065 Proposed Fee Per PFC Collected ...... 0.1000 0.1000 0.1000 0.1100 Over/Under Collection Per PFC ...... 00019 (0.0023) (0.0048) 0.0035 Compensation Based on PFCs Remitted: 1999 Cost Per PFC Remitted at $3 (Actual) ...... 0.0995 0.0995 0.0995 0.0995 1999 Cost Per PFC Remitted at $4.50 (Pro-Forma) ...... 01184 01.184 0.1184 0.1184 Weighted Cost Per PFC Remitted (Actual) ...... 0.1090 0.1137 0.1165 01184 Proposed Fee Per PFC Remitted ...... 0.1100 0.1100 0.1200 0.1200 Over/Under Collection Per PFC ...... 0.0010 (0.0037) 0.0035 0.0016 1 (Assumes 50% at $3 and 50% at $4.50) 2 (Assumes 25% at $3 and 75% at $4.50) 3 (Assumes 10% at $3 and 90% at $4.50) 4 (Assumes 0% at $3 and 100% at $4.50).
FAA considered using fees involving the proposal would set the fee at $0.11 expenses by roughly the amount needed fractional cents but opted to use whole for each PFC remitted through CY 2003. to recover the one-time set up costs cent units for ease of explanation and to Then, the rate would go to $0.12 for (adjusted to 2002 present value) for the prevent possible reprogramming each PFC remitted in CY 2004 and $4.50 PFC. Excess compensation would expenses for carriers and airports. Table beyond. be less than half of one percent of 5 shows that if carriers receive Based on data reported by the nine estimated carrier costs over the 10-year compensation for each PFC collected, carriers for 1999, Table 6 shows that period. Air carriers would receive more the proposed rate would be $0.10 for either method yields about the same compensation if the rate is set for each each PFC collected, through calendar compensation over a ten year period, PFC collected instead of each PFC year (CY) 2004. In CY 2005 and beyond, measured by net present value using a remitted, but the difference between the the rate would increase to $0.11 and 7 percent discount rate. FAA finds the two methods is not significant. remain at that level. If carriers received discounted compensation over a 10-year compensation for each PFC remitted, period exceeds ongoing PFC handling
TABLE 6.—COMPARISON OF COMPENSATION STREAMS, COLLECTED VS. REMITTED
Per collected PFC Weighted ac- tual handling Proposed Difference cost compensation
PFCs Collected by Carriers Reporting Data—485,238,737
Calendar Year: 2002 ...... $47,577,658 $48,523,874 $946,216 2003 ...... 49,627,792 48,523,874 (1,103,918) 2004 ...... 50,857,872 48,523,874 (2,333,998) 2005 ...... 51,677,925 53,376,261 1,698,336 2006 ...... 51,677,925 53,376,261 1,698,336 2007 ...... 51,677,925 53,376,261 1,698,336 2008 ...... 51,677,925 53,376,261 1,698,336 2009 ...... 51,677,925 53,376,261 1,698,336 2010 ...... 51,677,925 53,376,261 1,698,336 2011 ...... 51,677,925 53,376,261 1,698,336 Present Value 2002–11 (2002) ...... 356,672,024 362,158,324 5,486,300 Present Value of One-Time $4.50 PFC Implementation Costs (2002) ...... 3,707,357 Present Value of Net Compensation (Difference Less Implementation) ...... 1,778,943 Percent Net Compensation of Total Weighted Actual Handling Costs ...... 0.5%
Per remitted PFC Weighted ac- tual handling Proposed compensation Difference cost 1
PFCs Remitted by Carriers Reporting Data—436,659,521
Calendar Year: 2002 ...... $47,574,055 $48,032,547 $458,492 2003 ...... 49,637,271 48,032,547 (1,604,724)
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Per remitted PFC
Weighted ac- Proposed tual handling compensation Difference cost 1
2004 ...... 50,875,201 52,399,143 1,523,942 2005 ...... 51,700,487 52,399,143 698,655 2006 ...... 51,700,487 52,399,143 698,655 2007 ...... 51,700,487 52,399,143 698,655 2008 ...... 51,700,487 52,399,143 698,655 2009 ...... 51,700,487 52,399,143 698,655 2010 ...... 51,700,487 52,399,143 698,655 2011 ...... 51,700,487 52,399,143 698,655 Present Value 2002–11 (2002) ...... 356,790,337 360,134,767 3,344,430 Present Value of One-Time $4.50 PFC Implementation Costs (2002) ...... 3,707,357 Present Value of Net Compensation (Difference Less Implementation) ...... (362,927) Percent Net Compensation of Total Weighted Actual Handling Costs ...... (0.1%) 1 Weighted actual costs for total remitted PFCs vary slightly from these shown for total collected PFCs (by 0.03) due to slightly different refund rates between the actual and pro-forma cost estimates.
Table 7 shows the proposed rates of of compensation, the reporting carriers compensation in 2002 and 2003, and compensation compared with the would receive $13 million more in $21 million more in the years after. existing $0.08 rate of compensation for compensation each year through 2003 These estimates are based on 1999 each PFC remitted over a ten-year than they would under the $0.08 rate of enplanement levels. period, from 2002 to 2011. Table 7 is compensation. Then, they would By 2005, this added compensation calculated based on compensation for receive more than $17 million in added would constitute less than 1 percent each remitted PFC because that is the compensation in 2004 and beyond. method for the current $0.08 FAA notes the data presented by the (0.89 percent) of the total PFC collection compensation level. However, the nine carriers represented 84 percent of stream realized by the airports. The total amount of increase in total the estimated total PFCs collected in compensation amount, including the compensation to carriers shown in 1999. When we estimated the total $0.08 level existing, would constitute Table 7 for the remitted PFC impact on the entire PFC program, 2.67 percent of collections. Over a ten- methodology is comparable to what including all PFC collections and year period, increased collection as would result from the collected PFC remittances, we found that air carries measured in present value terms would methodology. Under the proposed rates would receive $16 million more in be 0.87 percent of total PFCs collected.
TABLE 7—COMPENSATION COMPARISON: PROPOSED FEE VS. $0.08 HANDLING FEE
Proposed fee per $0.08 fee per Value of PFCs remitted PFC remitted PFC Difference collected
PFCs Remitted by Carriers Reporting Data—436,659,521
Calendar Year: 2002 ...... $48,032,547 $34,932,762 ($13,099,786) $1,637,473,204 2003 ...... 48,032,547 34,932,762 (13,099,786) 1,801,220,524 2004 ...... 52,399,143 34,932,762 (17,466,381) 1,899,468,916 2005 ...... 52,399,143 34,932,762 (17,466,381) 1,964,967,845 2006 ...... 52,399,143 34,932,762 (17,466,381) 1,964,967,845 2007 ...... 52,399,143 34,932,762 (17,466,381) 1,964,967,845 2008 ...... 52,399,143 34,932,762 (17,466,381) 1,964,967,845 2009 ...... 52,399,143 34,932,762 (17,466,381) 1,964,967,845 2010 ...... 52,399,143 34,932,762 (17,466,381) 1,964,967,845 2011 ...... 52,399,143 34,932,762 (17,466,381) 1,964,967,845 Present Value (2002) ...... 360,134,767 245,353,100 (114,781,667) 13,298,552,236 Increase as Percent of PV of PFCs Collected ...... 0.8631% Undiscounted Value ...... 515,258,235 349,327,617 (165,930,618) 19,092,937,556 Increase as Percent of PFCs Collected ...... 0.8691% Note: This table does not compare fees based on PFC collections because the existing compensation fee ($0.08) is paid per remitted PFC. However, the two proposed compensation methodologies yield approximately the same level of new compensation.
Treatment of Inflation for several reasons. First, the largest cost productivity, such as the ability to item, the credit card transaction fee, is handle ticket transactions more Most of the nine carriers reporting not necessarily linked to inflation in the efficiently through e-ticketing from handling costs also asserted that economy. Second, the long-term link internet sites, is difficult to forecast. inflation affects costs. FAA has found, between prevailing rates of wage Should handling fees for each PFC rise however, that the use of an inflation compensation for reservations agents significantly because of inflation, FAA factor for handling fees is problematic and other airline personnel, and notes that airlines should document this
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increase and provide the information to create unnecessary obstacles to the addition, some carriers and their trade FAA in a petition to amend part 158. foreign commerce of the United States. organizations have argued that the $0.08 In developing U.S. standards, this Trade compensation amount is not enough Conclusion Act also requires agencies to consider even at the $3 for each PFC remitted Currently, FAA bases PFC handling international standards and, where level. FAA proposes a new amount of fees on remitted PFCs rather than appropriate, use them as the basis of compensation at $0.10 for each PFC collected PFCs. However, as noted U.S. standards. And fourth, the collected through calendar year 2004. In above, data show that refund rates vary Unfunded Mandates Reform Act of 1995 2005 and beyond carriers would receive significantly among carriers. Therefore, (Public Law 104–4) requires agencies to $0.11 for each PFC collected. Based on FAA proposes to compensate carriers prepare a written assessment of the 1999 PFC collections, FAA estimates the for PFCs collected. Specifically, FAA costs, benefits, and other effects of change would increase carrier proposes that carriers receive $0.10 for proposed or final rules that include a compensation by $21 million yearly in each PFC collected through CY 2004. Federal mandate likely to result in the PFC funds. Otherwise, airports would From CY 2005 and beyond carriers will expenditure by State, local, or tribal have received this added compensation receive $0.11 for each PFC collected. governments, in the aggregate, or by instead of the carriers. Once airports FAA reminds all parties the current private sector, of $100 million or more widely adopt the $4.50 PFC, this higher requirements of § 158.53 remain in annually (adjusted for inflation). compensation amount would be less effect unless FAA issues a final rule In conducting these analyses, FAA than one percent of estimated airport changing the PFC rule. Until changed has determined this rule (1) has benefits PFC receipts. This proposed amount through a final rule, carriers remain which do justify its costs, is a would not erode airport authorized PFC entitled to receive $0.08 for each PFC ‘‘significant regulatory action’’ as collection amounts. Rather, airports remitted. New fees, if any, set up in a defined in section 3(f) of Executive would be able to recover this slightly final rule will not be retroactive from Order 12866 and is ‘‘significant’’ as higher compensation amount by the date of that final rule, nor will a defined in DOT’s Regulatory Policies minimal extensions of PFC collection change in the basis for compensation be and Procedures; (2) will not have a periods. In addition, any impact on retroactive. significant impact on a substantial airport revenue streams caused by the number of small entities; (3) will not Paperwork Reduction Act higher compensation amount is an reduce barriers to international trade; unavoidable result of providing a Information collection requirements and (4) does not impose an unfunded uniform amount that carriers may retain in the amendment to part 158 mandate on state, local, or tribal that reflects the average necessary and previously have been approved by the governments, or on the private sector. reasonable expenses for collecting and Office of Management and Budget These analyses are available in the handling PFCs, as required by the PFC (OMB) under the provisions of the docket. statute. Air travelers will not incur an Paperwork Reduction Act of 1995 (44 Benefit—Cost Analysis increase in the cost of their tickets U.S.C. 3507(d)), and have been assigned This proposed rule will amend part because of this adjustment. Air carriers OMB Control Number 2120–0557. Note may incur some minor costs (if any) of that nine carriers voluntarily presented 158 to bring compensation for PFC collection and handling to levels setting up the change of compensation data to FAA for analysis before FAA amounts in their accounting programs, began this rulemaking action. necessary to meet cost increases resulting in part from the new statutory but the benefits of the higher International Compatibility With ICAO rules set up under AIR–21. AIR–21 compensation amounts would outweigh Standards allows airport authorities to increase the this cost. In keeping with U.S. obligations PFC level to $4 or $4.50 to collect more Regulatory Flexibility Act under the Convention on International funds. Airport authorities will use these Civil Aviation, it is FAA policy to funds to (1) enhance the safety, security The Regulatory Flexibility Act of 1980 comply with International Civil and capacity of their facilities; (3) establishes ‘‘as a principle of regulatory Aviation Organization (ICAO) Standards reduce noise in nearby communities; issuance that agencies shall endeavor, and Recommended Practices to the and (3) enhance airline competition to consistent with the objective of the rule maximum extent practicable. FAA the benefit of air travelers. The PFC and of applicable statutes, to fit determined there are no ICAO statute requires that the Secretary of regulatory and informational Standards and Recommended Practices Transportation (whose authority has requirements to the scale of the that correspond to these proposed been delegated to FAA) establish by business, organizations, and compensation adjustments. regulation a uniform amount that governmental jurisdictions subject to carriers may retain that reflects the regulation.’’ To achieve that principle, Economic Evaluation Summary average necessary and reasonable the Act requires agencies to solicit and Proposed changes to Federal expenses for collecting and handling consider flexible regulatory proposals regulations must undergo several PFCs. This amount, referred to in 14 and to explain the rationale for their economic analyses. First, Executive CFR part 158 as ‘‘carrier compensation,’’ actions. The Act covers a wide-range of Order 12866 directs that each Federal is to be determined net of interest small entities, including small agency propose or adopt a regulation earned on PFC revenue between the businesses, not-for-profit organizations only upon a determination that the time of collection and payment. The and small governmental jurisdictions. benefits of the intended regulation current compensation amount allowed Agencies must perform a review to justify its costs. Second, the Regulatory by § 158.53 is $0.08 for each PFC determine whether a proposed or final Flexibility Act of 1980 requires agencies remitted. However, the increase in the rule will have a significant economic to analyze the economic impact of PFC level to $4 or $4.50 from the earlier impact on a substantial number of small regulatory changes on small entities. $3 cap introduced new costs to carriers entities. If the determination is that it Third, the Trade Agreements Act (19 for which carriers do not receive will, the agency must prepare a U.S.C. section 2531–2533) prohibits compensation under the prevailing rate regulatory flexibility analysis (RFA) as agencies from setting standards that of $0.08 for each PFC remitted. In described in the Act.
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If an agency determines that a elected officers (or their designees) of within the meaning of the National proposed or final rule is not expected to State, local, and tribal governments on Environmental Policy Act of 1969. The have a significant economic impact on a proposed ‘‘significant potential environmental effects of any a substantial number of small entities, intergovernmental mandate.’’ A project funded with PFC revenues are section 605(b) of the 1980 act provides ‘‘significant intergovernmental already addressed under that the head of the agency may so mandate’’ under the Act is any § 158.29(b)(1)(iv), which requires all certify and an RFA is not required. The provision in a Federal agency regulation applicable requirements pertaining to certification must include a statement that would impose an enforceable duty the National Environmental Policy Act providing the factual basis for this upon State, local, and tribal of 1969 (NEPA) to be satisfied before the determination, and the reasoning should governments, in the aggregate, of $100 Administrator may approve the project be clear. million (adjusted annually for inflation) to use PFC funds. A copy of this The change to the compensation in any one year. Section 203 of the Act, assessment has been placed in the amount is necessary to conform with the 2 U.S.C. 1533, which supplements docket. PFC statute, which requires the section 204(a), provides that before Secretary to establish by regulation a establishing any regulatory Energy Impact uniform amount that carriers may retain requirements that might significantly or We have assessed the energy impact that reflects the average necessary and uniquely affect small governments, the of the proposed notice in accordance reasonable expenses for collecting and agency shall have developed a plan that, with the Energy Policy and handling PFCs (net of interest accruing among other things, provides for notice Conservation Act (EPCA) Pub. L. 94– to the carrier and agent after PFC to potentially affected small 163, as amended (43 U.S.C. 6362) and collection and before remittance of the governments, if any, and for a FAA Order 1053.1. We have determined PFC to the airport public agency). meaningful and timely opportunity to the rule is not a major regulatory action Moreover, all costs to the small entity provide input in the development of under the provisions of the EPCA. are fully recoverable through the PFC, if regulatory proposals. approved. Accordingly, pursuant to the This proposed rule does not contain List of Subjects in 14 CFR Part 158 Regulatory Flexibility Act, 5 U.S.C. a Federal intergovernmental or private 605(b), FAA certifies this rule will not sector mandate that exceeds $100 Air carriers, Airports. have a significant impact on a million a year. The Proposed Amendment substantial number of small entities. Executive Order 13132, Federalism In consideration of the foregoing, the International Trade FAA has analyzed this proposed rule Federal Aviation Administration The Trade Agreement Act of 1979 under the principles and criteria of proposes to amend part 158 of title 14 prohibits Federal agencies from Executive Order 13132, Federalism. We of the Code of Federal Regulations as engaging in any standards or related determined that this action would not follows: activities that create unnecessary have a substantial direct effect on the obstacles to the foreign commerce of the States, on the relationship between the PART 158—PASSENGER FACILITY United States. Legitimate domestic national Government and the States, or CHARGES (PFC’S) objectives, such as safety, are not on the distribution of power and considered unnecessary obstacles. The responsibilities among the various 1. The authority citation for part 158 statute also requires consideration of levels of government. Therefore, we continues to read as follows: international standards and where determined this notice of proposed Authority: 49 U.S.C. 106(g), 40116–40117, appropriate, that they be the basis for rulemaking would not have federalism 47106, 47111, 47114–47116, 47524, 47526. U.S. standards. implications. In accordance with the above statute, Plain Language 2. Amend § 158.53 by revising the FAA has assessed the potential effect of introductory text and paragraph (a) to this proposed rule and has determined In response to the June 1, 1998, read as follows: that it will impose the same costs on Presidential memorandum regarding the domestic and international entities for use of plain language, FAA re-examined § 158.53 Collection compensation. comparable services and thus has a the writing style currently used in the As compensation for collecting, neutral trade impact. development of regulations. The handling, and remitting the PFC memorandum requires federal agencies Unfunded Mandates Reform Act revenue, the collecting carrier is entitled to communicate clearly with the public. to: Title II of the Unfunded Mandates We are interested in your comments on Reform Act of 1995 (the Act), codified whether the style of this document is (a) Retain $0.10 of each PFC collected at 2 U.S.C. 1501–1571, requires each clear, and in any other suggestions you on or after (the effective date of the final Federal agency, to the extent permitted might have to improve the clarity of rule) and before January 1, 2005, after by law, to prepare a written assessment FAA communications that affect you. which carriers are entitled to $0.11 of of the effects of any Federal mandate in You can get more information about the each PFC collected; a proposed or final agency rule that may Presidential memorandum and the plain * * * * * result in the expenditure by State, local, language initiative at http:// Issued in Washington, DC, on November and tribal governments, in the aggregate, www.plainlanguage.gov. 20, 2002. or by the private sector, of $100 million Environmental Analysis or more (adjusted annually for inflation) Benito DeLeon, in any one year. Section 204(a) of the FAA concludes that issuance of this Acting Director, Office of Airport Planning Act, 2 U.S.C. 1534(a), requires the proposed rule would not be a major and Programming. Federal agency to develop an effective Federal action significantly affecting the [FR Doc. 02–30103 Filed 11–26–02; 8:45 am] process to permit timely input by quality of the human environment BILLING CODE 4910–13–P
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DEPARTMENT OF ENERGY discussion of the public comments filed 7. For more information about the in response to the system security conferences, please contact Sarah Federal Energy Regulatory provisions described in the NOPR, and McKinley at (202) 502–8004 or Commission an opportunity to make additional [email protected]. public comments, as described below. Linwood A. Watson, Jr., 18 CFR Part 35 3. Copies of the NOPR security Deputy Secretary. [Docket No. RM01–12–000] proposal may be obtained from: http:// www.ferc.fed.us/Electric/RTO/Mrkt- [FR Doc. 02–30032 Filed 11–26–02; 8:45 am] Remedying Undue Discrimination Strct-comments/discussion_paper.htm. BILLING CODE 7590–01–P Through Open Access Transmission Copies of the NERC security proposal Service and Standard Electricity are available in Appendix A at: ftp:// DEPARTMENT OF ENERGY Market Design www.nerc.com/pub/sys/all_updl/docs/ ferc/RM01–12–000–SMD.pdf. November 20, 2002. Federal Energy Regulatory 4. Commission staff has asked Commission AGENCY: Federal Energy Regulatory selected individuals to speak at this Commission, DOE. conference, and is not entertaining 18 CFR Parts 35, 101, 154, 201, 346, ACTION: Notice of technical conference. requests to make presentations. and 352 However, interested persons will be SUMMARY: Commission staff will permitted to make very brief public [Docket No. RM02–7–000] convene a technical conference on statements. Such statements should not December 6, 2002 to discuss the cyber- Accounting, Financial Reporting, and be repetitive of materials that speakers security provisions described in Section Rate Filing Requirements for Asset have already filed in the public record M and Appendix G of the Notice of Retirement Obligations of this docket. Persons interested in Proposed Rulemaking issued in this making brief statements should file a docket on July 31, 2002. See 67 FR November 21, 2002. request to speak on or before November AGENCY: 55,452 (Aug. 29, 2002). There will be an Federal Energy Regulatory 27, 2002, in Docket No. RM01–12–000. opportunity for interested persons to Commission, DOE. If possible, interested speakers should make very brief public statements at the ACTION: Notice of proposed rulemaking; also send a copy of their request to conference, following the presentations. correction. speak by e-mail to [email protected]. DATES: Requests to speak are due The request should clearly specify the SUMMARY: This document corrects a November 27, 2002. The conference will name of the speaker; his or her title; the comment date in the Commission’s take place on December 6, 2002. person or entity the speaker represents; proposed rule published in the Federal ADDRESSES: Send requests to speak to: the speaker’s mailing address, telephone Register of November 19, 2002, Office of the Secretary, Federal Energy number, facsimile number and e-mail regarding accounting, financial Regulatory Commission, 888 First address; and a brief description of the reporting and rate filing requirements Street, NE., Washington, DC 20426. issues the speaker wishes to address. As for asset retirement obligations. This The conference will take place at: the number of potential speakers may correction clarifies the Public Comment Federal Energy Regulatory Commission, exceed the time allotted for the Procedures to note that comments are 888 First Street, NE., Washington, DC conference, interested speakers are due on or before January 3, 2002. 20426. encouraged to coordinate their efforts DATES: Comments on the proposed FOR FURTHER INFORMATION CONTACT: with others who may have similar rulemaking are due on or before January Sarah McKinley, Office of External interests. 3, 2003. Affairs, Federal Energy Regulatory 5. All interested persons may attend FOR FURTHER INFORMATION CONTACT: Commission, 888 First Street, NE., the technical conference, and Raymond Reid (Technical Information), Washington, DC 20426, (202) 502–8004. registration is not required. Further Office of the Executive Director, SUPPLEMENTARY INFORMATION: details of the conference, and the Federal Energy Regulatory conference agenda, will be provided in Commission, 888 First Street, NE., Notice of Technical Conference a subsequent notice. Washington, DC 20426, (202) 502– 1. Take notice that a technical 6. Transcripts of the conference will 6125. conference will be held on December 6, be immediately available from Ace Julia A. Lake (Legal Information), Office 2002, from approximately 9:30 a.m. Reporting Company (202–347–3700 or of the General Counsel, Federal until 3 p.m., in the Commission Meeting 1–800–336–6646), for a fee. They will be Energy Regulatory Commission, 888 Room on the second floor of the offices available for the public on the First Street, NE., Washington, DC of the Federal Energy Regulatory Commission’s FERRIS system two 20426, (202) 502–8370. Commission, 888 First Street, NE., weeks after the conference. SUPPLEMENTARY INFORMATION: Washington, DC. The goal of the Additionally, Capitol Connection offers conference is to discuss and analyze the opportunity for remote listening and Notice of Correction proposed rules for cyber-security. viewing of the conference. It is available The Federal Energy Regulatory 2. Conference panelists will discuss for a fee, live over the Internet, via C- Commission published in the Federal the security provisions described in Band Satellite. Persons interested in Register of November 19, 2002, a Notice Section M and Appendix G of the receiving the broadcast, or who need of Proposed Rulemaking proposing to Notice of Proposed Rulemaking (NOPR) information on making arrangements amend its regulations to update its published in this docket on July 31, should contact David Reininger or Julia accounting and financial reporting 2002. They will also address the Morelli at the Capitol Connection (703– requirements under its Uniform Systems updated proposal that the North 993–3100) as soon as possible or visit of Accounts. The specific date by which American Electricity Reliability Council the Capitol Connection Web site at the public should submit comments was (NERC) filed in this docket on http://www.capitolconnection.gmu.edu not inserted in the Public Comment November 15, 2002. There will be a and click on ‘‘FERC.’’ Procedures section of the preamble. In
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the Federal Register Document 02– ‘‘Background’’, fifth paragraph, line 4, the hearing, and/or to be placed on the 28294 published on November 19, 2002 the language ‘‘690 (1986), 1986–3 (Vol. building access list to attend the (67 FR 69816) make the following 4) C.B. 686 (the’’ is corrected to read hearing, Treena Garrett at (202) 622– correction. ‘‘690 (1986), 1986–3 (Vol. 4) C.B. 690 7180 (not a toll-free number). On page 69826, in the third column, (the’’. SUPPLEMENTARY INFORMATION: A notice in number 97, correct the sentence Cynthia E. Grigsby, of proposed rulemaking by cross- ‘‘Comments are due within 45 days from reference to temporary regulations and publication in the Federal Register’’ to Chief, Regulations Unit, Associate Chief Counsel, (Income Tax and Accounting). notice of public hearing (REG–143321– read as follows: 02), that was published in the Federal [FR Doc. 02–30141 Filed 11–26–02; 8:45 am] ‘‘Comments on the proposed Register on Monday, November 18, rulemaking are due on or before January BILLING CODE 4830–01–P 2002 (67 FR 69496), announced that a 3, 2003.’’ public hearing on proposed regulations Linwood A. Watson, Jr., DEPARTMENT OF THE TREASURY relating to information reporting relating Deputy Secretary. to taxable stock transactions under [FR Doc. 02–30034 Filed 11–26–02; 8:45 am] Internal Revenue Service sections 6043(c) and 6045 of the Internal Revenue Service Code would be held on BILLING CODE 6717–01–P 26 CFR Part 1 Wednesday, March 5, 2003, beginning at 10 a.m. in room 4718 of the Internal [REG–143321–02] Revenue Building, 1111 Constitution DEPARTMENT OF THE TREASURY RIN 1545–BB60 Avenue, NW., Washington, DC. Internal Revenue Service The date of the public hearing has Information Reporting Relating to changed. The hearing is scheduled for Taxable Stock Transactions; Hearing 26 CFR Part 1 Tuesday, March 25, 2003, beginning at 10 a.m. in room 4718, Internal Revenue AGENCY: [REG–142599–02] Internal Revenue Service (IRS), Service Building, 1111 Constitution Treasury. RIN 1545–BB23 Avenue, NW., Washington, DC. We ACTION: Change of date for public must receive outlines of oral comments Guidance Regarding Mixed Use Output hearing on proposed rulemaking. by Tuesday, March 4, 2003. Because of the controlled access Facilities; Correction SUMMARY: This document changes the restrictions, attendees are not admitted date of a public hearing on proposed AGENCY: Internal Revenue Service (IRS), beyond the lobby on the Internal regulations relating to information Treasury. Revenue Service Building until 9:30 reporting relating to taxable stock ACTION: Correction to an advance notice a.m. The IRS will prepare an agenda transactions. of proposed rulemaking. showing the scheduling of the speakers DATES: The public hearing originally after the outlines are received from the SUMMARY: This document contains a scheduled for Wednesday, March 5, persons testifying and make copies correction to an advance notice of 2003, at 10 a.m., in room 4718, is available free of charge at the hearing. proposed rulemaking that was rescheduled for Tuesday, March 25, published in the Federal Register on 2003, at 10 a.m., in room 4718. Written Cynthia E. Grigsby, Monday, September 23, 2002 (65 FR or electronic outlines of oral comments Chief, Regulations Unit, Associate Chief 59767), relating to the issuance of tax- must be received by Tuesday, March 4, Counsel (Income Tax and Accounting). exempt bonds for the government use 2003. [FR Doc. 02–30142 Filed 11–26–02; 8:45 am] portion of an output facility that is used ADDRESSES: The public hearing is being BILLING CODE 4830–01–P for both a government use and a private held in room 4718 of the Internal business use. Revenue Service Building, 1111 DEPARTMENT OF THE TREASURY FOR FURTHER INFORMATION CONTACT: Rose Constitution Avenue, NW., Washington, M. Weber at (202) 622–3880 (not a toll- DC. Due to building security Internal Revenue Service free number). procedures, visitors must enter Main SUPPLEMENTARY INFORMATION: entrance, located at Constitution 26 CFR Part 1 Background Avenue, NW. In addition, all visitors must present photo identification to [REG–124667–02] The advance notice of proposed enter the building. RIN 1545–BA78 rulemaking that is the subject of this Mail outlines to: CC:ITA:RU (REG– correction is under sections 103 and 141 143321–02), room 5226, Internal Disclosure of Relative Values of of the Internal Revenue Code. Revenue Service, POB 7604, Ben Optional Forms of Benefit; Correction Franklin Station, Washington, DC Need for Correction AGENCY: Internal Revenue Service (IRS), As published, the advance notice of 20044. Submissions may be hand Treasury. delivered Monday through Friday proposed rulemaking contains errors ACTION: Correction to notice of proposed between the hours of 8 a.m. and 5 p.m. that may prove to be misleading and are rulemaking and notice of public to: CC:ITA:RU (REG–143321–02), in need of clarification. hearing. Courier’s Desk, Internal Revenue Correction of Publication Service, 1111 Constitution Avenue, SUMMARY: This document contains Accordingly, the publication of the NW., Washington, DC. Alternatively, corrections to a notice of proposed notice of proposed rulemaking (REG– taxpayers may submit electronic rulemaking and notice of public hearing 142599–02), that was the subject of FR outlines of oral comments directly to the that was published in the Federal Doc. 02–24138, is corrected as follows: IRS Internet site at www.irs.gov/regs. Register on Monday, October 7, 2002 On page 59767, column 2, in the FOR FURTHER INFORMATION CONTACT: (67 FR 62417) that would consolidate preamble under the paragraph heading Concerning submissions of comments, the content requirements applicable to
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explanations of qualified joint and SUMMARY: On August 7, 2002, the Dated: November 22, 2002. survivor annuities and qualified United States Department of Justice John Ashcroft, preretirement survivor annuities published a proposed rule to implement Attorney General. payable under certain retirement plans. the Radiation Exposure Compensation [FR Doc. 02–30129 Filed 11–26–02; 8:45 am] FOR FURTHER INFORMATION CONTACT: Sara Act Amendment of 2000. The original BILLING CODE 4410–12–M P. Shepherd at (202) 622–4910 (not a 60-day comment period expired on toll-free number). October 7, 2002. The Department is SUPPLEMENTARY INFORMATION: reopening the comment period for an DEPARTMENT OF TRANSPORTATION addition 60-day period. Background Coast Guard The notice of proposed rulemaking DATES: Comments must be received on and notice of public hearing that is the or before January 27, 2003. 33 CFR Part 165 subject of these corrections is under ADDRESSES: Comments may be mailed to [CGD01–02–132] section 417 of the Internal Revenue Gerard W. Fischer, Assistant Director, Code. U.S. Department of Justice, Civil RIN 2115–AA97 Need for Correction Division, P.O. Box 146, Ben Franklin Station, Washington, DC 20044–0146. Safety and Security Zones; New York As published, the notice of proposed Marine Inspection Zone and Captain of rulemaking and notice of public hearing FOR FURTHER INFORMATION CONTACT: the Port Zone contains errors that may prove to be Gerard W. Fischer (Assistant Director), misleading and are in need of (202) 616–4090, and Dianne S. Spellberg AGENCY: Coast Guard, DOT. clarification. (Senior Counsel), (202) 616–4129. ACTION: Notice of proposed rulemaking. Correction of Publication SUPPLEMENTARY INFORMATION: On August SUMMARY: The Coast Guard proposes to Accordingly, the publication of the 7, 2002, the Department of Justice establish permanent safety and security notice of proposed rulemaking and (Department) published a rule that zones around the Indian Point Nuclear notice of public hearing (REG–124677– proposed amendments to the Power Station (IPNPS), all commercial 02), that was the subject of FR Doc. 00– regulations governing radiation waterfront facilities, Liquefied 25338, is corrected as follows: exposure compensation claims. The Hazardous Gas (LHG) Facilities on the 1. On page 62421, column 2, in the principal reason for the amendments Arthur Kill; moored or anchored U.S. preamble under the caption ‘‘Comments was implement the provisions of the Coast Guard vessels; Coast Guard and Public Hearing’’, second full Radiation Exposure Compensation Act Stations New York, Sandy Hook, and paragraph, line 2, the language ‘‘for (Act) Amendments of 2000 that Kings Point and Aids to Navigation January 14, 2002, at 10 a.m. in room’’ is expanded coverage under the Act to Team New York; Ellis and Liberty corrected to read ‘‘for January 14, 2003, uranium mill workers and individuals Islands; all bridge piers and abutments, at 10 a.m. in room’’. employed in the transport of uranium and overhead power cable towers, piers 2. On page 62421, column 2, in the ore or vanadium-uranium ore, and that and abutments; tunnel ventilators; the preamble under the caption ‘‘Comments New York City Passenger Ship expanded the population of eligible and Public Hearing’’, third full Terminal; a moving safety and security uranium mine workers by lowering the paragraph, line 8, the language ‘‘January zone around ‘‘Designated Vessels’’ (DVs) 2, 2002. A period of 10 minutes’’ is radiation exposure threshold for miners, deemed by the Captain of the Port to corrected to read ‘‘January 2, 2003. A by enlarging the number of uranium require special protection on account of period of 10 minutes’’. mining states with respect to which their hazardous cargo or passenger miners may be eligible for Cynthia E. Grigsby, carrying capacity; and revise the current compensation, and by including ‘‘above regulations that establish moving safety Chief, Regulations Unit, Associate Chief ground’’ miners within the scope of the Counsel, (Income Tax and Accounting). zones around Liquefied Petroleum Gas regulations. See 67 FR 51440. vessels. This action is necessary to [FR Doc. 02–30143 Filed 11–26–02; 8:45 am] The Navajo RECA Reform Working safeguard facilities, vessels, public, and BILLING CODE 4830–01–P Group, a coalition of six organizations the surrounding areas from sabotage, within the Navajo Nation, has requested subversive acts, or other threats. The zones will prohibit entry into or DEPARTMENT OF JUSTICE an additional 60-day period in which to provide comment on the proposed rule. movement within these areas without 28 CFR Part 79 This additional period of time would authorization from the Captain of the allow the coalition to translate the Port New York. [CIV 101N; AG Order 2632–2002] proposed rule into the Navajo language, DATES: Comments and related material RIN 1105–AA75 thereby allowing the Navajo elders to must reach the Coast Guard on or before participate in the regulation review December 27, 2002. Claims Under the Radiation Exposure process. Granting this request ensures ADDRESSES: You may mail comments Compensation Act Amendments of that this community, as well as other and related material to Waterways 2000; Expansion of Coverage to entities and individuals, have ample Oversight Branch (CGD01–02–132), Uranium Millers and Ore Transporters; opportunity to fully review and Coast Guard Activities New York, 212 Expansion of Coverage for Uranium comment on the proposed rule. Coast Guard Drive, Room 204, Staten Miners; Representation and Fees Island, New York 10305. The Accordingly, the Department is Waterways Oversight Branch of Coast AGENCY: Civil Division, Department of reopening the comment period and will Justice. Guard Activities New York maintains accept public comments for an the public docket for this rulemaking. ACTION: Proposed rule; reopening of additional 60 days after publication of Comments and material received from comment period. this notice. the public, as well as documents
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indicated in this preamble as being U.S.C. 191 et seq.), that the security of facility that could potentially cause available in the docket, will become part the United States is endangered by serious negative impact to vessels, the of this docket and will be available for disturbances in international relations port, or the environment. Commercial inspection or copying at room 204, of United States that have existed since vessels would still be able to transit Coast Guard Activities New York, the terrorist attacks on the United States through the 540 yards between the between 8 a.m. and 3 p.m., Monday and such disturbances continue to western boundary of the safety and through Friday, except Federal holidays. endanger such relations. Executive security zone and Hudson River Lighted FOR FURTHER INFORMATION CONTACT: Order 13,273 of August 21, 2002, Buoy 27 (LLNR 37930), and recreational Lieutenant Commander W. Morton, Further Amending Executive Order vessels would still be able to transit Waterways Oversight Branch, Coast 10173, as Amended, Prescribing through the western 1,115 yards of the Guard Activities New York at (718) 354– Regulations Relating to the 1,415-yard wide Hudson River. 4012. Safeguarding of Vessels, Harbors, Ports, Additionally, vessels would not be SUPPLEMENTARY INFORMATION: and Waterfront Facilities of the United precluded from mooring at or getting States, 67 FR 56215 (September 3, underway from commercial or Request for Comments 2002). recreational piers in the vicinity of the We encourage you to participate in Immediately following the September zone. 11th attacks, we published a temporary this rulemaking by submitting Liquefied Hazardous Gas Vessels (LHG), comments and related material. If you final rule (66 FR 51558) that established a temporary regulated navigation area, LHG Facilities, and Designated Vessel do so, please include your name and (DV) Transits address, identify the docket number for and safety and security zones in the this rulemaking (CGD01–02–132), New York Marine Inspection and The Coast Guard proposes to revise indicate the specific section of this Captain of the Port New York Zones. the Liquid Petroleum Gas (LPG) vessel document to which each comment These measures were taken to safeguard safety zone at 33 CFR 165.160. That applies, and give the reason for each human life, vessels and waterfront regulation establishes a 100-yard comment. Please submit all comments facilities from sabotage or terrorist acts. moving safety zone around any LPG and related material in an unbound That temporary final rule was vessel while it transits between format, no larger than 81⁄2 by 11 inches, subsequently revised (67 FR 16016; 67 Scotland Lighted Horn Buoy S (LLNR suitable for copying. If you would like FR 53310) to extend its effective period 35085) and the Arthur Kill. The to know they reached us, please enclose through December 31, 2002. proposed revision would establish a a stamped, self-addressed postcard or The Coast Guard proposes to establish safety and security zone to include all envelope. We will consider all permanent safety and security zones waters within the New York Marine comments and material received during throughout the New York Marine Inspection and Captain of the Port the comment period. We may change Inspection and Captain of the Port Zones within a 200-yard radius of any this proposed rule in view of them. Zones as part of a comprehensive, port Liquefied Hazardous Gas (LHG) vessel security regime designed to safeguard or LHG facility. We also propose to Public Meeting human life, vessels and waterfront establish a moving safety and security We do not now plan to hold a public facilities from sabotage or terrorist acts. zone to include all waters within a 100- meeting. But you may submit a request Due to continued heightened security yard radius of any ‘‘Designated Vessel’’ for a meeting by writing to Activities concerns, the proposed permanent (DVs) transiting the New York Marine New York Waterways Oversight Branch safety and security zones are necessary Inspection and Captain of the Port at the address under ADDRESSES to provide for the safety of the port and Zones. DVs include: Vessels certificated explaining why one would be ensure that vessels, facilities, bridges, to carry 500 or more passengers; vessels beneficial. If we determine that one overhead power cables, or tunnel carrying government officials or would aid this rulemaking, we will hold ventilators, are not used as targets of, or dignitaries requiring protection by the one at a time and place announced by platforms for terrorist attacks. These U.S. Secret Service, or other Federal, a later notice in the Federal Register. zones would restrict entry into or State, or local law enforcement agency; and barges or ships carrying petroleum Background and Purpose movement within portions of the New York Marine Inspection and Captain of products, chemicals, or other hazardous On September 11, 2001, three the Port Zones. We anticipate that the cargo. commercial aircraft were hijacked and final rule developed as a result of this These proposed safety and security flown into the World Trade Center in rulemaking will be effective no later zones are necessary to protect the LHG New York City, and the Pentagon, than January 1, 2003. vessels, LHG facilities, DVs, their crews inflicting catastrophic human casualties and/or passengers, others in the and property damage. National security Discussion of Proposed Rule maritime community, and the and intelligence officials warn that This proposed rule would establish surrounding communities from future terrorist attacks are likely. The the following safety and security zones: subversive or terrorist attack against a President has continued the national vessel or a facility that could potentially emergencies he declared following the Indian Point Nuclear Power Station cause serious negative impact to human September 11, 2001, terrorist attacks. (IPNPS) life, the vessels, facilities, the port, or See, Continuation of the National The Coast Guard proposes to establish the environment. Safety and security Emergency with Respect to Certain a permanent safety and security zone in zones are necessary to protect passenger Terrorist Attacks, 67 FR 58317 all waters of the Hudson River within a vessels due to their potential as a target (September 13, 2002); Continuation of 300-yard radius of the IPNPS pier in of subversive or terrorist attack, which the National Emergency With Respect approximate position 41°16′12.4″ N, could result in significant casualties. To Persons Who Commit, Threaten To 073°57′16.2″ W. The zone is necessary Vessels may transit through any portion Commit, Or Support Terrorism, 67 FR to protect the IPNPS, others in the of the proposed LHG facility safety and 59447 (September 20, 2002). The maritime community, and the security zones that extend into the President also has found pursuant to surrounding communities from navigable channel for the sole purpose law, including the Magnuson Act (50 subversive or terrorist attack against the of transiting through the safety and
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security zones so long as they remain side of the commercial vessel instead of within the waters of the New York within the navigable channel, maintain the pierhead. These zones prohibit the Marine Inspection and Captain of the the maximum safe distance from the entry of vessels that are not actively Port New York Zones, south of the Troy, waterfront facility and do not stop or engaged in legitimate, scheduled NY Locks. loiter within the safety and security transfer operations at the individual The proposed safety and security zones. facilities. Vessels may transit through zones are necessary to protect each The Captain of the Port will notify the any portion of the proposed zone that bridge, overhead power cable, pier, maritime community of the periods extends into the navigable channel for abutment, tunnel ventilator, others in during which the proposed safety and the sole purpose of direct and the maritime community, and the security zones will be enforced by the expeditious transit through the zone so surrounding communities from methods identified in 33 CFR 165.7 long as they remain within the subversive or terrorist attack against the including electronic mail broadcasts navigable channel, maintain the protected structures that could identifying ‘‘Designated Vessel’’ transit. maximum safe distance from the potentially cause serious negative impact to commercial ground shipments U.S. Coast Guard Cutters and Shore waterfront facility and do not stop or by vehicle or railroad, private vehicle Facilities loiter within the zone. The proposed safety and security traffic, vessels, the port, or the The Coast Guard proposes to establish zones are necessary to protect each environment. The Captain of the Port permanent safety and security zones facility, commercial vessels moored at does not expect this rule to interfere within 100 yards of each moored, or the facility, others in the maritime with the transit of any vessels through anchored, Coast Guard Cutter operating community, and the surrounding the waterways adjacent to each bridge, within the New York Marine Inspection communities from subversive or overhead power cable, and tunnel and Captain of the Port Zones. We also terrorist attack against the facility that ventilator. Vessels may transit through propose to establish a safety and could potentially cause serious negative any portion of the proposed zone that security zone within 100 yards of Coast impact to commercial vessels, the port, extends into the navigable channel for Guard Station New York, Staten Island, or the environment. The Captain of the the sole purpose of direct and NY, Coast Guard Station Sandy Hook, Port does not expect this rule to expeditious transit through the zone so NJ, Coast Guard Station Kings Point, interfere with the transit of any vessels long as they remain within the NY, and Coast Guard Aids to Navigation through the waterways adjacent to each navigable channel, maintain the Team New York, Bayonne, NJ. facility. Additionally, vessels would not maximum safe distance from the The proposed safety and security be precluded from mooring at or getting protected structure and do not stop or zones would protect Coast Guard assets, underway from commercial or loiter within the zone. Additionally, others in the maritime community, and recreational piers in the vicinity of the vessels would not be precluded from the surrounding communities from zone. mooring at or getting underway from subversive or terrorist attack against the commercial or recreational piers in the Coast Guard that could cause serious Liberty and Ellis Islands vicinity of the zones. damage to vessels, the port or the The Coast Guard proposes to establish environment or adversely impact the a permanent safety and security zone New York City Passenger Ship Coast Guard’s ability to conduct its encompassing all waters within 150 Terminal, Hudson River, NY assigned missions. The Captain of the yards of Liberty Island, Ellis Island, and The Coast Guard proposes to establish Port does not expect this rule to the bridge between Liberty State Park a permanent safety and security zone interfere with the transit of any vessels and Ellis Island. that would be enforced whenever through the waterways adjacent to any The proposed safety and security passenger vessels are pierside at Pier 88, cutter or shoreside facility. zones are necessary to protect each 90, or 92, or whenever the passenger Additionally, vessels would not be Island, the bridge between Liberty State ship terminal or the adjacent Intrepid precluded from mooring at or getting Park and Ellis Island, authorized sight- Sea, Air and Space Museum, Manhattan underway from commercial or seeing vessels operating at each island, are being used as an Emergency recreational piers in the vicinity of the others in the maritime community, and Operations Center. The Coast Guard will zones. the surrounding communities from provide notification and termination of subversive or terrorist attack against the a particular safety or security zone by Commercial Waterfront Facilities islands that could potentially cause way of methods identified in 33 CFR The Coast Guard proposes to establish serious negative impact to vessels, the 165.7. a permanent safety and security zone port, or the environment. The Captain of This proposed safety and security within 25 yards of each commercial the Port does not expect this rule to zone includes all waters of the Hudson waterfront facility located within the interfere with the transit of any vessels River bound by the following points: New York Marine Inspection and through the waterways adjacent to each from the northeast corner of Pier 96 Captain of the Port Zones that is capable Island. Additionally, vessels would not where it intersects the seawall, thence of accepting barge, ship, or ferry vessels. be precluded from mooring at or getting west to approximate position A ‘‘commercial waterfront facility’’ underway from commercial or 40°46′23.1″ N, 073°59′59.0″ W, thence means all piers, wharves, docks and recreational piers in the vicinity of the south to approximate position similar structures to which commercial zones. 40°45′55.3″ N, 074°00′20.2″ W (NAD vessels may be secured; areas of land or 1983), thence east to the southeast water under and in immediate Bridge Piers and Abutments, Overhead corner of Pier 84 where it intersects the proximity to them; buildings on such Power Cable Towers, Piers, and Tunnel seawall, thence north along the structures or contiguous to them; and Ventilators shoreline to the point of origin. Marine equipment and materials on such The Coast Guard proposes to establish traffic will still be able to transit through structures and in such buildings. During a permanent safety and security zone the western 660 yards of the 900-yard transfer operations at a commercial within 25 yards of each bridge pier and wide Hudson River during the waterfront facility, the 25-yard zone abutment, overhead power cable tower, activation of the zone. Vessels moored would be measured from the outboard pier, and tunnel ventilator, located at piers within the safety and security
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zone, however, will not be allowed to We expect the economic impact of duration of these zones’ activation, the transit from their moorings without this proposed rule to be so minimal that expected infrequency of the activation permission from the Captain of the Port, a full Regulatory Evaluation under of the safety and security zones around New York, during the effective periods paragraph 10e of the regulatory policies LHG vessels and LHG facilities, and the of the proposed safety and security and procedures of DOT is unnecessary. advance notifications that will be zone. The only vessels that would be This finding is based on the fact that provided by the methods described affected by the safety or security zones vessels will be able to transit around the above. would be other passenger vessels at the safety and security zones at the Indian If you think that your business, Passenger Terminal or visiting vessels at Point Nuclear Power Station, the Coast organization, or governmental the Intrepid Sea, Air and Space Guard Stations and Cutters, Commercial Museum. The Captain of the Port may Waterfront Facilities, Liberty Island, jurisdiction qualifies as a small entity authorize these vessels to transit Ellis Island, Bridge Piers and and that this rule would have a through these zones. The Captain of the Abutments, Overhead Power Cable significant economic impact on it, Port does not anticipate any negative Towers and Abutments, Tunnel please submit a comment (see impact on vessel traffic due to this Ventilators, the New York City ADDRESSES) explaining why you think it safety and security zone. Passenger Ship Terminal, and the DVs, qualifies and how and to what degree The safety and security zones are vessels can still transit through the this rule would economically affect it. necessary to protect the passenger harbor before, during, or after these Assistance for Small Entities vessels, their crews and passengers, vessels’ transits, the expected short others in the maritime community, and duration of these zones’ activation, the Under section 213(a) of the Small the surrounding communities from expected infrequency of the activation Business Regulatory Enforcement subversive or terrorist attack that could of the safety and security zones around Fairness Act of 1996 (Public Law 104– cause serious negative impact to vessels, LHG vessels and LHG facilities, and 121), we want to assist small entities in the port, or the environment, and result advance notifications will be made by understanding this proposed rule so that in numerous casualties. methods in accordance with 33 CFR they can better evaluate its effects on The Captain of the Port will notify the 165.7. them and participate in the rulemaking. maritime community of periods during Small Entities If the proposed rule would affect your which this safety and security zone will small business, organization, or Under the Regulatory Flexibility Act be enforced in accordance with methods governmental jurisdiction and you have (5 U.S.C. 601–612), we have considered identified in 33 CFR 165.7. questions concerning its provisions or Any violation of any safety or security whether this proposed rule would have options for compliance, please contact zone proposed herein, is punishable by, a significant economic impact on a LCDR Morton, Waterways Oversight among others, civil penalties (not to substantial number of small entities. exceed $27,500 per violation, where The term ‘‘small entities’’ comprises Branch, Activities New York, at 718– each day of a continuing violation is a small businesses, not-for-profit 354–4012. separate violation), criminal penalties organizations that are independently Collection of Information (imprisonment for not more than 10 owned and operated and are not years and a fine of not more than dominant in their fields, and This proposed rule would call for no $100,000), in rem liability against the governmental jurisdictions with new collection of information under the offending vessel, and license sanctions. populations of less than 50,000. Paperwork Reduction Act of 1995 (44 This regulation is proposed under the The Coast Guard certifies under 5 U.S.C. 3501–3520). authority contained in 50 U.S.C. 191, 33 U.S.C. 605(b) that this proposed rule Federalism U.S.C. 1223, 1225 and 1226. would not have a significant economic No person or vessel may enter or impact on a substantial number of small A rule has implications for federalism remain in a prescribed safety or security entities. This proposed rule will affect under Executive Order 13132, zone at any time without the permission the following entities, some of which Federalism, if it has a substantial direct of the Captain of the Port, New York. might be small entities: the owners or effect on State or local governments and Each person or vessel in a safety or operators of vessels intending to transit would either preempt State law or or anchor in a portion of the New York security zone shall obey any direction or impose a substantial direct cost of Marine Inspection and Captain of the order of the Captain of the Port. The compliance on them. We have analyzed Port Zones in which entry would be Captain of the Port may take possession this proposed rule under that Order and and control of any vessel in a security prohibited by safety or security zones. These safety and security zones will have determined that it does not have zone and/or remove any person, vessel, implications for federalism. article or thing from a security zone. not have a significant economic impact on a substantial number of small entities Unfunded Mandates Reform Act Regulatory Evaluation for the following reasons: vessels will be This proposed rule is not a able to transit around the safety and The Unfunded Mandates Reform Act ‘‘significant regulatory action’’ under security zones at the Indian Point of 1995 (2 U.S.C. 1531–1538) requires section 3(f) of Executive Order 12866, Nuclear Power Station, the Coast Guard Federal agencies to assess the effects of Regulatory Planning and Review, and Stations and Cutters, Commercial their discretionary regulatory actions. In does not require an assessment of Waterfront Facilities, Liberty Island, particular, the Act addresses actions potential costs and benefits under Ellis Island, Bridge Piers and that may result in the expenditure by a section 6(a)(3) of that Order. The Office Abutments, Overhead Power Cable State, local, or tribal government, in the of Management and Budget has not Towers and Abutments, Tunnel aggregate, or by the private sector of reviewed it under that Order. It is not Ventilators, the New York City $100,000,000 or more in any one year. ‘‘significant’’ under the regulatory Passenger Ship Terminal, and the DVs, Though this proposed rule would not policies and procedures of the vessels can still transit through the result in such an expenditure, we do Department of Transportation (DOT) (44 harbor before, during, or after these discuss the effects of this rule elsewhere FR 11040, February 26, 1979). vessels’ transits, the expected short in this preamble.
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Taking of Private Property 1, paragraph 34(g), of Commandant Coast Guard patrol personnel by siren, This proposed rule would not affect a Instruction M16475.1D, this rule is radio, flashing light, or other means, the taking of private property or otherwise categorically excluded from further operator of a vessel shall proceed as have taking implications under environmental documentation. This rule directed. Executive Order 12630, Governmental fits paragraph 34(g) as it establishes (3) The Captain of the Port will notify Actions and Interference with safety and security zones. A the maritime community of periods Constitutionally Protected Property ‘‘Categorical Exclusion Determination’’ during which these zones will be Rights. is available in the docket where enforced by methods in accordance with indicated under ADDRESSES. 33 CFR 165.7 and will identify DV Civil Justice Reform vessel transits by way of electronic mail List of Subjects in 33 CFR Part 165 This proposed rule meets applicable broadcast. standards in sections 3(a) and 3(b)(2) of Harbors, Marine safety, Navigation 3. Add § 165.169 to read as follows: Executive Order 12988, Civil Justice (water), Reporting and recordkeeping requirements, Security measures, § 165.169 Safety and Security Zones: New Reform, to minimize litigation, York Marine Inspection Zone and Captain of eliminate ambiguity, and reduce Waterways. the Port Zone. burden. For the reasons discussed in the (a) Safety and security zones. The Protection of Children preamble, the Coast Guard proposes to following waters within the New York amend 33 CFR part 165 as follows: We have analyzed this proposed rule Marine Inspection Zone and Captain of under Executive Order 13045, PART 165—REGULATED NAVIGATION the Port Zone are safety and security Protection of Children from AREAS AND LIMITED ACCESS AREAS zones: Environmental Health Risks and Safety (1) Indian Point Nuclear Power Risks. This rule is not an economically 1. The authority citation for Part 165 Station (IPNPS). All waters of the significant rule and would not create an continues to read as follows: Hudson River within a 300-yard radius of the IPNPS pier in approximate environmental risk to health or risk to Authority: 33 U.S.C. 1231; 50 U.S.C. 191; ° ′ ″ ° ′ ″ safety that might disproportionately 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; position 41 16 12.4 N, 073 57 16.2 W affect children. 49 CFR 1.46. (NAD 83). (2) U.S. Coast Guard Cutters and Indian Tribal Governments 2. Revise § 165.160 to read as follows: Shore Facilities. All waters within 100 This proposed rule does not have § 165.160 Safety and Security Zones: yards of: Each moored, or anchored, tribal implications under Executive Liquefied Hazardous Gas Vessel, Liquefied Coast Guard Cutter; Coast Guard Station Order 13175, Consultation and Hazardous Gas Facility and Designated New York, Staten Island, NY; Coast Coordination with Indian Tribal Vessel Transits, New York Marine Guard Station Sandy Hook, NJ; Coast Inspection Zone and Captain of the Port Guard Station Kings Point, NY; and Governments, because it does not have Zone. a substantial direct effect on one or Coast Guard Aids to Navigation Team more Indian tribes, on the relationship (a) Location. The following areas are New York, Bayonne, NJ. between the Federal Government and safety and security zones: (3) Commercial Waterfront Facilities. Indian tribes, or on the distribution of (1) All waters of the New York Marine All waters within 25 yards of each power and responsibilities between the Inspection Zone and Captain of the Port commercial waterfront facility that is Federal Government and Indian tribes. Zone within a 200-yard radius of any capable of accepting barge, ferry or other We invite your comments on how this Liquefied Hazardous Gas (LHG) vessel commercial vessels. For purposes of this proposed rule might impact tribal or LHG facility. section, ‘‘commercial waterfront governments, even if that impact may (2) All waters of the New York Marine facility’’ means all piers, wharves, docks not constitute a ‘‘tribal implication’’ Inspection Zone and Captain of the Port and similar structures to which barge, under the Order. Zone within a 100-yard radius of any ferry or other commercial vessels may Designated Vessels. be secured; areas of land or water under Energy Effects (b) Designated Vessels (DVs). For the and in immediate proximity to them; We have analyzed this proposed rule purposes of this section, DVs are: buildings on such structures or under Executive Order 13211, Actions Vessels certificated to carry 500 or more contiguous to them; and equipment and Concerning Regulations That passengers; vessels carrying government materials on such structures and in such Significantly Affect Energy Supply, officials or dignitaries requiring buildings. Distribution, or Use. We have protection by the U.S. Secret Service, or (i) When a barge, ferry or other determined that it is not a ‘‘significant other Federal, State or local law commercial vessel is conducting energy action’’ under that order because enforcement agency; and barges or ships transfer operations at a commercial it is not a ‘‘significant regulatory action’’ carrying petroleum products, chemicals, waterfront facility, the 25-yard zone is under Executive Order 12866 and is not or other hazardous cargo. measured from the outboard side of the likely to have a significant adverse effect (c) Regulations. (1) The general commercial vessel. on the supply, distribution, or use of regulations contained in 33 CFR 165.23 (ii) Vessels may transit through any energy. It has not been designated by the and 165.33 apply. portion of the zone that extends into the Administrator of the Office of (2) All persons and vessels must navigable channel for the sole purpose Information and Regulatory Affairs as a comply with the instructions of the of direct and expeditious transit through significant energy action. Therefore, it Coast Guard Captain of the Port or the the zone so long as they remain within does not require a Statement of Energy designated on-scene patrol personnel. the navigable channel, maintain the Effects under Executive Order 13211. These personnel comprise maximum safe distance from the commissioned, warrant, and petty commercial waterfront facility and do Environment officers of the Coast Guard onboard not stop or loiter within the zone. We have considered the Coast Guard, Coast Guard Auxiliary, (4) Liberty and Ellis Islands. All environmental impact of this proposed local, state, and federal law enforcement waters within 150 yards of Liberty rule and concluded that, under figure 2– vessels. Upon being hailed by U. S. Island, Ellis Island, and the bridge
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between Liberty State Park and Ellis Dated: November 1, 2002. SUPPLEMENTARY INFORMATION: The Saint Island. C.E. Bone, Lawrence Seaway Development (5) Bridge Piers and Abutments, Captain, U.S. Coast Guard, Captain of the Corporation (SLSDC) and the St. Overhead Power Cable Towers, Piers Port, New York. Lawrence Seaway Management and Tunnel Ventilators. All waters [FR Doc. 02–30105 Filed 11–26–02; 8:45 am] Corporation (SLSMC) of Canada, under within 25 yards of any bridge pier or BILLING CODE 4910–15–P international agreement, jointly publish abutment, overhead power cable tower, and presently administer the St. pier or tunnel ventilators south of the Lawrence Seaway Regulations and Troy, NY Locks. Vessels may transit DEPARTMENT OF TRANSPORTATION Rules (Practices and Procedures in through any portion of the zone that Canada) in their respective jurisdictions. extends into the navigable channel for Saint Lawrence Seaway Development Under agreement with the SLSMC, the the sole purpose of direct and Corporation SLSDC is proposing to amend the joint expeditious transit through the zone so regulations to make use of Automatic long as they remain within the 33 CFR Part 401 Identification System (AIS) in Seaway navigable channel, maintain the waters from St. Lambert, Quebec to maximum safe distance from the [Docket No. SLSDC 2002–13698] Long Point, mid-Lake Erie mandatory waterfront facility and do not stop or RIN 2135–AA15 effective at the beginning of the 2003 loiter within the zone. navigation season, which is scheduled (6) New York City Passenger Ship Seaway Regulations and Rules: for March 25, 2003. Terminal, Hudson River, NY—(i) Automatic Identification System Location. All waters of the Hudson Background and Purpose River bound by the following points: AGENCY: Saint Lawrence Seaway Since the opening of the Saint from the northeast corner of Pier 96 Development Corporation, DOT. Lawrence Seaway in 1959, the Saint where it intersects the seawall, thence ACTION: Notice of proposed rulemaking. Lawrence Seaway Development west to approximate position Corporation and the St. Lawrence 40°46′23.1″ N, 073°59′59.0″ W, thence SUMMARY: The Saint Lawrence Seaway Seaway Management Corporation Vessel south to approximate position Development Corporation (SLSDC) and Traffic Services (VTS) system has been 40°45′55.3″ N, 074°00′20.2″ W (NAD the St. Lawrence Seaway Management responsible for monitoring the progress 1983), thence east to the southeast Corporation (SLSMC) of Canada, under of commercial traffic to ensure the safe corner of Pier 84 where it intersects the international agreement, jointly publish and expeditious passage of vessels seawall, thence north along the and presently administer the St. operating in Seaway sectors under their shoreline to the point of origin. Lawrence Seaway Regulations and control. Procedures in use today include (ii) Enforcement period. This zone Rules (Practices and Procedures in limits on vessel speed and requirements will be enforced whenever passenger Canada) in their respective jurisdictions. for all commercial traffic to report by vessels are pierside at Pier 88, 90 or 92 Under agreement with the SLSMC, the voice on marine VHF radio to the Vessel or whenever the passenger ship terminal SLSDC is proposing to amend the joint Control (VTC) centers. These reports are or the adjacent Intrepid Sea, Air and regulations to make use of Automatic made at designated ‘‘call-in-points’’ Space Museum, Manhattan are being Identification System (AIS) in Seaway along the river. Traffic managers at VTC used as an Emergency Operations waters from St. Lambert, Quebec to centers use the vessel reports to monitor Center. The activation and termination Long Point, mid-Lake Erie mandatory traffic patterns, including one-way of a particular zone will be announced effective at the beginning of the 2003 vessel traffic restricted areas and project in accordance with 33 CFR 165.7. navigation season, which is scheduled the estimated times of arrival (ETA) of (b) Regulations. (1) The general for March 25, 2003. vessels at locks in the Seaway. regulations contained in 33 CFR 165.23 SLSDC and SLSMC sponsored DATES: Any party wishing to present successful prototype demonstrations and 165.33 apply. views on the proposed amendments (2) Vessels not actively engaged in and evaluations of a Global Positioning may file comments with the Corporation legitimate transfer operations shall not System based VTS system in the fall of on or before January 27, 2003. stop or loiter within that part of a 1994 and during the 1995 shipping commercial waterfront facility safety ADDRESSES: Signed, written comments season. The demonstrations established and security zone extending into the should refer to the docket number that a VTS using AIS technology was navigable channel, described in appearing at the top of this document both feasible and cost effective and can paragraph (a)(3) of this section, without and must be submitted to the Docket improve the efficiency and safety of the express permission of the Coast Clerk, U.S. DOT Dockets, Room PL–401, operations. In the 1999 shipping season, Guard Captain of the Port or the 400 Seventh Street, SW., Washington, SLSDC and SLSMC deployed a designated on-scene patrol personnel. DC 20590–0001. Written comments may modernized vessel Traffic Management (3) All persons and vessels shall also be submitted electronically at http:/ System (TMS). Now, for the first time, comply with the instructions of the /dmses.dot.gov/submit/BlankDSS.asp. all vessel control centers in the Saint Coast Guard Captain of the Port or the All comments received will be available Lawrence Seaway share a common designated on-scene patrol personnel. for examination between 9 a.m. and 5 vessel information database. Presently, These personnel comprise p.m., E.T., Monday through Friday, vessel positions, derived from commissioned, warrant, and petty except federal holidays. Those desiring simulations based on transit histories of officers of the Coast Guard onboard notification of receipt of comments must vessels, are entered manually into the Coast Guard, Coast Guard Auxiliary, include a self-addressed, stamped TMS system by traffic controllers and local, state, and federal law enforcement envelope or postcard. then updated by voice reports from the vessels. Upon being hailed by U. S. FOR FURTHER INFORMATION CONTACT: vessels during actual transits. Coast Guard patrol personnel by siren, Marc C. Owen, Chief Counsel, Saint AIS is a broadcast system, operating radio, flashing light, or other means, the Lawrence Seaway Development in the VHF maritime mobile band. It is operator of a vessel shall proceed as Corporation, 400 Seventh Street, SW., capable of sending and receiving ship directed. Washington, DC 20590, (202) 366–6823. information such as identification,
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position, course, speed and more, to and Characteristics For A Universal the existing Seaway VHF radio or from other ships and to and from shore. Shipborne AIS Using Time Division private telephone towers. The Seaway TMS will send pertinent Multiple Access In The VHF Maritime Federalism navigation information such as local Mobile Band, as amended; wind speed and direction, water levels, 3. International Electrotechnical The Corporation has analyzed this ice conditions, availability of next Commission, IEC 61993–2 Ed.1, proposed rule under the principles and lockage, and safety-related messages to Maritime Navigation and Radio criteria in Executive Order 13132, Dated vessels. Communication Equipment and August 4, 1999, and has determined that With the capabilities of ship-to-ship, Systems—AIS —Part 2: Class A this proposal does not have sufficient ship-to-shore and shore-to-ship Shipborne Equipment of the Universal federalism implications to warrant a communications, AIS will greatly AIS—Operational and Performance Federalism Assessment. enhance the safety, improve the Requirements, Methods of Test and Unfunded Mandates efficiency of the traffic management and Required Test Results, as amended; increase the vessel security and 4. International Maritime The Corporation has analyzed this emergency response capabilities. Organization (IMO) Guidelines for proposed rule under title II of the Specifically, the potential benefits of Installation of Shipborne Automatic Unfunded Mandates Reform Act of 1995 AIS for the Seaway entities include Identification System (AIS), NAV 48/18, (Pub. L. 104–4, 109 Stat. 48) and providing a more efficient vessel traffic 2 April 2002, as amended, and for ocean determined that it does not impose management as a result of knowing vessels only, with a pilot plug, as unfunded mandates on State, local, and accurate location and speed of the specified in Section 3.2 of those tribal governments and the private vessels, monitoring vessel speeds Guidelines, installed close to the sector requiring a written statement of especially for hazardous cargo and primary conning position in the economic and regulatory alternatives. deeper draft vessels and faster response navigation bridge and a standard 120 Paperwork Reduction Act time to vessels in case of security Volt, AC, 3-prong power receptacle concerns and vessel accidents or This proposed regulation has been accessible for the pilot’s laptop incidents. The potential benefits to the analyzed under the Paperwork computer; and carrier users include the reduction of Reduction Act of 1995 and does not overall transit time as a result of better 5. Computation of AIS position contain new or modified information scheduling of lockages and other reports using differential GPS collection requirements subject to the services timely dispatching of pilots. It corrections from the U.S. and Canadian Office of Management and Budget also provides real-time position, speed, Coast Guards’ maritime Differential review. heading and other pertinent information Global Positioning System radiobeacon of the vessel, which will allow master services. List of Subjects in 33 CFR Part 401 or pilot to better coordinate on the 6. The use of portable AIS is Hazardous materials transportation, meeting or overtaking in critical reaches permissible. Navigation (water), Penalties, Radio, of the Seaway. Regulatory Evaluation Reporting and recordkeeping requirements, Vessels, Waterways. Proposed Rule This proposed regulation involves a Accordingly, the Saint Lawrence foreign affairs function of the United The SLSDC and the SLSMC are Seaway Development Corporation States and therefore Executive Order proposing a new § 401.20 that would proposes to amend 33 CFR chapter IV as 12866 does not apply and evaluation require mandatory use of AIS in Seaway follows: waters from St. Lambert, Quebec to under the Department of Long Point, mid-Lake Erie effective at Transportation’s Regulatory Policies and PART 401—SEAWAY REGULATIONS the beginning of the 2003 navigation Procedures is not required. AND RULES season, which is scheduled for March Regulatory Flexibility Act Subpart A—[Amended] 25, 2003. All vessels that require pre- Determination clearance and have a 300 gross tonnage or greater, have an Length Over All The Saint Lawrence Seaway 1. The authority citation for subpart A (LOA) over 20 meters, or carry more Development Corporation certifies that of part 401 would continue to read as than 50 passengers for hire, would have this proposed regulation will not have a follows: to use an AIS transponder to transit the significant economic impact on a Authority: 33 U.S.C. 983(a) and 984(a)(4), Saint Lawrence Seaway. Dredges and substantial number of small entities. as amended; 49 CFR 1.52, unless otherwise floating plants and towing vessels over The St. Lawrence Seaway Tariff of Tolls noted. 8 meters in length would also be primarily relates to commercial users of 2. Part 401 would be amended by required to use AIS, except only each the Seaway, the vast majority of whom adding a new § 401.20 to read as lead unit of combined and multiple are foreign vessel operators. Therefore, follows: units (tugs and tows) would have to use any resulting costs will be borne mostly it. Each vessel would have to meet the by foreign vessels. § 401.20 Automated Identification System. (a) Each of the following vessels must following international Environmental Impact recommendations, standards, and use an Automatic Identification System guidelines: This proposed regulation does not (AIS) transponder to transit the Seaway: 1. International Maritime require an environmental impact (1) each vessel that requires pre- Organization (IMO) Resolution statement under the National clearance in accordance with § 401.22 MSC.74(69), Annex 3, Recommendation Environmental Policy Act (49 U.S.C. and has a 300 gross tonnage or greater, on Performance Standards for a 4321, et reg.) because it is not a major has a Length Over All (LOA) over 20 Universal Shipborne AIS, as amended; federal action significantly affecting the meters, or carries more than 50 2. International Telecommunication quality of human environment. All nine passengers for hire; and Union, ITU–R Recommendation AIS shore base stations (three in U.S. (2) each dredge, floating plant or M.1371–1: 2000, Technical and six in Canada) are co-located with towing vessel over 8 meters in length,
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except only each lead unit of combined SUMMARY: This proposed rule would limited circumstances, require that the and multiple units (tugs and tows). establish National Park Service (NPS) services provided by the holder begin (b) Each vessel listed in paragraph (a) regulations concerning the issuance and and end outside of a park area. The of this section must meet the following administration of commercial use proposed regulations when finalized requirements to transit the Seaway: authorizations. Commercial use will assure that all NPS commercial use (1) International Maritime authorizations are a form of NPS written authorizations are issued or solicited Organization (IMO) Resolution authorization under which persons are and awarded consistently and that the MSC.74(69), Annex 3, Recommendation allowed to provide certain commercial private sector will be aware of NPS on Performance Standards for a services to visitors of areas of the authorizing procedures. The proposed Universal Shipborne AIS, as amended; national park system. The issuance of commercial use authorization program (2) International Telecommunication commercial use authorizations is will replace the current NPS ‘‘incidental Union, ITU–R Recommendation authorized by Section 418 of the business permit’’ program when M.1371–1: 2000, Technical National Parks Omnibus Management adopted. Characteristics For A Universal Act of 1998, Public Law 105–391. The Section 52.1 Authority and Purposes Shipborne AIS Using Time Division proposed commercial use authorization generally describes the authorities for Multiple Access In The VHF Maritime program will replace the current NPS and purposes of the proposed rule. The Mobile Band, as amended; ‘‘incidental business permit’’ program basic authority is 16 U.S.C. 1 et seq., the (3) International Electrotechnical when adopted. National Park Service Organic Act. This Commission, IEC 61993–2 Ed.1, DATES: Written comments on the is supplemented by section 418 of the Maritime Navigation and Radio rulemaking must be received on or National Parks Omnibus Management Communication Equipment and before January 27, 2003. Written Act of 1998, 16 U.S.C. 5966. Systems—AIS —Part 2: Class A comments on the information collection Commercial use authorizations may Shipborne Equipment of the Universal must be received by Office of authorize commercial services in park AIS—Operational and Performance Management and Budget on or before areas that are similar to or the same as Requirements, Methods of Test and December 27, 2002. some types of services authorized by Required Test Results, as amended; concession contracts issued by the ADDRESSES: Written comments for the (4) International Maritime Director under 36 CFR Part 51. rulemaking should be sent to Cynthia Organization (IMO) Guidelines for Concession contracts may be issued to Orlando, Concessions Program Manager, Installation of Shipborne Automatic authorize the provision of services to National Park Service, 1849 C Street, Identification System (AIS), NAV 48/18, visitors rather than a commercial use NW., (2410), Washington, DC 20240. 2 April 2002, as amended, and, for authorization even though the proposed Fax: (202) 371–2090. Email: ocean vessels only, with a pilot plug, as _ services may be suitable to specified in Section 3.2 of those WASO [email protected]. Written authorization under a commercial use Guidelines, installed close to the comments for the information collection authorization. The Director may only primary conning position in the should be sent to Attention Desk Officer issue commercial use authorizations navigation bridge and a standard 120 for the Department of the Interior, Office under the terms and conditions of this Volt, AC, 3-prong power receptacle of Information and Regulatory Affairs, part. accessible for the pilot’s laptop Office of Management and Budget, 725 Drafting Information computer; and 17th Street, NW., Washington DC 20503. (5) Computation of AIS position FOR FURTHER INFORMATION CONTACT: The primary authors of this rule are reports using differential GPS Cynthia Orlando, Concession Program the members of a team of NPS officials corrections from the U.S. and Canadian Manager, National Park Service, 1849 C that manage commercial activities in Coast Guards’ maritime Differential Street, NW., (2410), Washington, DC units of the National Park System. 20240. Fax: (202) 371–2090. Global Positioning System radiobeacon Compliance with Other Laws services; or SUPPLEMENTARY INFORMATION: Regulatory Planning and Review (6) The use of portable AIS is Background permissible. (Executive Order 12866) Section 418 of the National Parks Issued at Washington, DC, on November In accordance with the criteria in 22, 2002. Omnibus Management Act of 1998, Executive Order 12866, the Office of Public Law 105–391 authorizes NPS to Saint Lawrence Seaway Development Management and Budget makes the final Corporation. issue commercial use authorizations to determination as to the significance of persons to provide commercial services Marc C. Owen, this regulatory action and it has to visitors of areas of the national park determined that this document is a Chief Counsel. system. There are two types of [FR Doc. 02–30095 Filed 11–26–02; 8:45 am] significant rule and is subject to review. commercial use authorizations, (1) This rule will not have an effect of BILLING CODE 4910–61–P incidental activity commercial use $100 million or more on the economy. authorizations and in-park commercial It will not adversely affect in a material use authorizations. The types of way the economy, productivity, DEPARTMENT OF THE INTERIOR commercial activities that may be competition, jobs, the environment, authorized under commercial use National Park Service public health or safety, or State, local, authorizations are similar in many or tribal governments or communities. respects to the type of activities that are 36 CFR Part 52 (2) This rule will not create a serious authorized by concession contracts inconsistency or otherwise interfere RIN 1024–AC85 issued under 36 CFR part 51, as with an action taken or planned by amended. Generally, however, another agency. Commercial Use Authorizations commercial use authorizations, unlike (3) This rule does not alter the AGENCY: National Park Service, Interior. concession contracts, do not authorize budgetary effects or entitlements, grants, the construction of improvements in a user fees, or loan programs or the rights ACTION: Proposed rule. park area by a holder, and, except in or obligations of their recipients.
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(4) This rule does not raise novel legal establish policies and procedures for the Commercial Use Authorization, or policy issues. issuance of commercial use Issuance and Reporting Requirements. authorizations for areas of the National This collection is based on the Regulatory Flexibility Act Park System. requirement for persons interested in This rule is not subject to the conducting business within national Regulatory Flexibility Act as it is not Unfunded Mandates Reform Act parks to provide information regarding required to be published for comment This rule does not impose an their business (documented in the CUA before adoption by 5 U.S.C. 553 or other unfunded mandate on State, local, or form submitted for approval), provide a law. (5 U.S.C. 553 does not apply to tribal governments or the private sector non-refundable application fee when regulations regarding contracts or public of more than $100 million per year. The filing, and annually report gross receipts lands.) NPS is soliciting public rule does not have a significant or from business conducted within comment on this proposed rule as a unique effect on State, local or tribal national parks. The initial request and matter of policy. governments or the private sector. the CUA form allows the holder to However, NPS considers that, even if apply for and conduct business in Takings (Executive Order 12630) the proposed regulations were subject to national parks and the NPS to retain a the Regulatory Flexibility Act, they In accordance with Executive Order written record of the holder’s business would not have a significant effect on a 12360, this rule does not have information. The application fee is used substantial number of small businesses significant takings implications as this to recover the administrative costs within the meaning of the Act. This is rule does not apply to private property. associated with issuing the CUA permit. because the proposed regulations A takings assessment is not required. The reporting requirement enables the generally only codify, in response to Federalism (Executive Order 13132) NPS to verify that the holder has Section 418 of Public Law 105–391, received less than $25,000 in gross NPS’s current requirements regarding In accordance with Executive Order receipts for business conducted within incidental business permits. After the 13132, this rule does not have sufficient national parks and determines eligibility proposed regulations are finalized, federalism implications to warrant the for the CUA. incidental business permits will be preparation of a federalism assessment. The NPS expects to receive/award replaced by commercial use The rule imposes no requirements on about 3,500 applicants annually. authorizations with no anticipated any governmental entity other than Holders will be required to report gross significant changes to the program as NPS. receipts once a year to the NPS. We currently implemented. In addition, expect the annual hours burden to the although the large majority of the some Civil Justice Reform (Executive Order 12998) public to be 14,000 hours—3,500 hours 4,000 businesses now holding for the initial request, 3,500 hours for incidental business permits are ‘‘small In accordance with Executive Order the application and 7,000 hours for the businesses’’ within the meaning of the 12988, the Office of the Solicitor has reporting requirement. Additionally, we Regulatory Flexibility Act, these determined that this rule does not expect to have an annual monetary businesses (firewood sales, trail guiding, unduly burden the judicial system and burden of $525,000 resulting from the tow truck operators, etc.) represent only does not meet the requirements of application fee [$150 × 3,500 a minuscule fraction of the total number sections 3(a) and 3(b)(2) of the Order. applicants]. The application fee total of such businesses operating in the Paperwork Reduction Act burden is based on an average fee of United States. In this connection, NPS $150 per applicant (from a range of $50– also notes that the proposed regulations This rule requires an information $250 per application) and 3,500 do not in fact ‘‘regulate’’ small collection from 10 or more parties and applicants. businesses in the usual sense of the a submission under the Paperwork Regarding this information collection, word. This is because no business is Reduction Act is required. An OMB the NPS specifically requests comments subject to the proposed regulations form 83-I has been reviewed by the on whether the collection of information unless its owner seeks to conduct Department and sent to the Office of is necessary or the proper for the commercial activities on federal land. Management and Budget (OMB) for performance of the functions of the The regulations have no applicability to approval. OMB has up to 60 days to bureau, including whether the the activities of any business that is not approve or disapprove this information information will have practical utility; conducted on federal lands. collection but may respond after 30 the accuracy of the bureau’s estimate of days. Therefore, in order to assure the burden of the collection of Small Business Regulatory Enforcement maximum consideration, written information, including the validity of Act (SBREFA) comments, suggestions or objections the methodology and assumptions used; This rule is not a major rule under 5 should be submitted on or before the quality, utility, and clarity of the U.S.C. 804(2), the Small Business December 27, 2002 to Attention: Desk information to be collected; and how to Regulatory Fairness Enforcement Act. Officer for the Interior Department, minimize the burden of the collection of This rule does not have an annual effect Office of Information and Regulatory information on those who are to on the economy of $100 million or Affairs, Office of Management and respond, including the use of more; will not cause a major increase in Budget, 725 17th Street, NW., appropriate automated electronic, costs or prices for consumers, Washington, DC 20503. Also, provide a mechanical or other forms of individual entities, Federal, State, or copy of any written comments on this information technology. local government agencies, or information collection submitted to geographic regions; and does not have OMB by mail to: Cynthia Orlando, National Environmental Policy Act significant adverse effects on Concession Program Manager, National This rule does not constitute a major competition, employment, investment, Park Service, 1849 C Street, NW., federal action affecting the quality of the productivity, innovation, or the ability (2410), Washington, DC 20240. E-mail: human environment. A detailed of U.S.-based enterprises to compete [email protected]. statement under the National with foreign-based enterprises. The The information collection contained Environment Policy Act is not required. primary effect of the proposed rule is to in this proposed regulation is entitled The rule will not increase public use of
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park areas, introduce non-compatible deliver comments to Cindy Orlando, commercial use authorizations or Special uses into park areas, conflict with National Park Service, 1201 Eye Street, Park Use Permits to be issued? adjacent land ownerships or land uses, NW., 11th Floor, Washington, DC. Our 52.14 When will the Director establish or cause a nuisance to property owners practice is to make comments, including visitor use limits. or occupants adjacent to park areas. 52.15 What special responsibilities does the names and home addresses of Director have if only a limited number of Accordingly, this rule is categorically respondents, available for public review commercial use authorizations are issued excluded from procedural requirements during regular business hours. or if the Director establishes visitor use of the National Environmental Policy Individual respondents may request that limits? Act by 516 DM 6, App. 7.4A(10). we withhold their home address from 52.16 What fees must the Director charge in the rulemaking record, which we will connection with a commercial use Government-to-Government authorization? Relationship With Tribes honor to the extent allowable by law. If you wish us to withhold your name 52.17 How will the Director expend fees In accordance with Executive Order and/or address, you must state this received from holders? 13175 ‘‘Consultation and Coordination prominently at the beginning of your Subpart D—Terms and Conditions of with Indian Tribal Governments’’ (65 FR comment. However, we will not Commercial Use Authorizations 67249), the President’s memorandum of consider anonymous comments. We 52.18 What is the term of a commercial use April 29, 1994, ‘‘Government-to- will make all submissions from authorization? Government Relations with Native organizations or businesses, and from 52.19 May a commercial use authorization American Tribal Governments’’ (59 FR individuals identifying themselves as be transferred? 22951) and 512 DM 2, we have representatives or officials of 52.20 May a commercial use authorization evaluated potential effects on Federally organizations or businesses available for provide an exclusive right to provide commercial services in a park area? recognized Indian tribes and have public inspection in their entirety. determined that there are no potential 52.21 May a commercial use authorization effects on the tribes. List of Subjects in 36 CFR Part 52 permit the construction of structures, fixtures, or improvements on lands Clarity of This Rule Concessions, National parks, Small located within the boundaries of a park businesses. area? Executive Order 12866 requires Accordingly, we propose to add 36 52.22 May the Director terminate a federal agencies to write regulations that CFR Part 52 to read as follows: commercial use authorization? are easy to understand. Comment is 52.23 What reporting requirements must a invited on how to make this rule easier PART 52—COMMERCIAL USE commercial use authorization contain? to understand, including answers to the AUTHORIZATIONS 52.24 May incumbent holders obtain rights following questions: (1) Are the or a perference to the issuance of requirements in the rule clearly stated? Subpart A—Authority Purpose and subsequent commercial use (2) Does the rule contain undefined Definitions authorizations or to particular visitor use technical language or jargon that Sec. allocations? 52.25 What records must a holder maintain interferes with its clarity? (3) Does the 52.1 What does this part cover? 52.2 Are commercial bus tour permits and what access does the Director have format of the rule (groupings and order to these records? of sections, use of headings, covered by this part? 52.3 How are certain terms defined in this 52.26 What other terms and conditions may paragraphing, etc.) aid in or reduce its part? or must a commercial use authorization clarity? (4) Would the rule be easier to contain? understand if it were divided into more Subpart B—Issuance of Commercial Use Authorizations Authority: 16 U.S.C. 1 et seq.; Sec. 418, but shorter sections? (5) Is the Pub. L. 105–391, 112 Stat. 3497 (16 U.S.C. description of the rule in the 52.4 What general conditions apply to the 5966). ‘‘Supplementary Information’’ section of issuance of commercial use the preamble helpful in understanding authorizations? Subpart A—Authority, Purpose and 52.5 What are examples of an incidental Definitions the proposed rule? (6) What else could activity commercial use authorization? be done to make the rule easier to 52.6 What are examples of an in-park § 52.1 What does this part cover? understand? commercial use authorization? Please send a copy of any comments 52.7 Is a non-profit organization required to This part covers the issuance and that concern how this rule could be obtain a commercial use authorization in administration of commercial use made easier to understand to: Office of order to provide services to visitors in a authorizations. A commercial use Regulatory Affairs, Department of the park area? authorization authorizes the holder to Interior, Room 7229, 1849 C Street, 52.8 When must the Director limit the provide specific commercial services to NW., Washington, DC 20240. number of Special Park Use Permits to be visitors to a park area in certain issued to a park area? circumstances and under specified Public Comment Solicitation Subpart C—Issuance of Commercial Use terms and conditions. Commercial use If you wish to comment, you may Authorizations authorizations may authorize submit your comments by any one of 52.9 Who may be issued a commercial use commercial services in park areas that several methods. You may mail authorization? are similar to or the same as some types comments to Cindy Orlando, National 52.10 How does a person request the of services authorized by concession Park Service, 1849 C Street, NW., issuance of a commercial use contracts issued by the Director under (2410), Washington, DC 20240. You may authorization? 36 CFR part 51. The Director at any time also comment via the Internet to 52.11 What happens after a written request may choose to issue a concession [email protected]. Please for issuance of a commercial use contract in accordance with 36 CFR part authorization is made? also include ‘‘Attn: RIN 1024–AC85’’ in 52.12 When must the Director limit the 51 to authorize the conduct of the subject line and your name and number of commercial use commercial services even though the return address in your Internet message. authorizations to be issued? proposed services may be subject to You may fax your comments to (202) 52.13 What happens if the Director authorization under a commercial use 371–2090. Finally, you may hand- determines to limit the number of authorization. The Director may only
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issue commercial use authorizations Non-profit organization means an authorization is a guided horseback trail under the terms and conditions of this entity that has been determined by the ride operation based outside of a park part. There are two types of commercial Internal Revenue Service to be exempt area that guides visitors into and out of use authorizations, incidental activity from federal income taxation as a non- a park area on a trail ride. In this commercial use authorizations and in- profit or not-for-profit organization example, all solicitation of customers, park commercial use authorizations. under the terms of the Internal Revenue sales, and payment for the services must Code. occur outside of park area boundaries. § 52.2 Are commercial bus tour permits Taxable income means income that is Incidental activity commercial use covered by this part? subject to federal income tax under the authorizations must contain appropriate No. The Director administers terms of the Internal Revenue Code. provisions limiting the conduct of commercial bus tour permits under Use limits means limits the Director services by the holder in a manner separate regulations and guidelines. may impose on a holder’s access to park consistent with the limitations set forth area lands or limits on a holder’s park § 52.3 How are certain terms defined in in this part. The Director may issue a this part? area entries and/visitor levels. single incidental activity commercial Visitor use allocations means To understand this part, you must use authorization allowing commercial allocations of a specified portion of a services to visitors in more than one refer to these definitions, applicable in park area entrance, user days, or similar the singular or the plural, whenever area of the park if all other applicable visitor use allowances that are required requirements of this part are met. these terms are used in this part. in order to implement park area visitor Commercial bus tour means a type of use limitations. § 52.6 What are examples of an in-park commercial service provided to park commercial use authorization? area visitors where passengers are Subpart B—Issuance of Commercial An in-park commercial use conveyed into and/or out of a park area Use Authorizations. authorization authorizes the holder to by motor vehicle for a direct or indirect provide specified commercial services fee or charge and no other services § 52.4 What general conditions apply to the issuance of commercial use to visitors (issued only if projected gross (except for on-board interpretation) are authorizations? receipts under the authorization are less provided. than $25,000) that originate and are Commercial bus tour permit means a Both types of commercial use authorizations (incidental activity provided solely within the boundaries form of written authorization issued for commercial use authorizations and in- of the park area. For example, the the conduct of commercial bus tours in park commercial use authorizations) Director may issue an in-park park areas. may be issued only to authorize the commercial use authorization to a Commercial use authorization means provision of commercial services to park firewood sales operator who enters a a form of written authorization issued area visitors that the Director park area campground to sell firewood by the Director to a person. The determines are appropriate to the to visitors. For another example, the authorization authorizes the holder to applicable park area. In addition, a Director may issue an in-park provide specific commercial services to commercial use authorization may be commercial use authorization to a park area visitors in certain issued only if the Director determines person selling crafts in a park area on circumstances and under specified that the authorization and the services a one time or occasional basis. In both terms and conditions. Except as authorized by the authorization: (1) Will examples, the authorization may not be otherwise indicated the term have minimal impact on the park area’s issued unless the Director projects that ‘‘commercial use authorization’’ as used resources and values; (2) are consistent the holder’s annual gross receipts from in this part collectively refers to with the purposes for which the park the services is less than $25,000. If the incidental activity commercial use area was established; (3) are consistent Director projects that the annual gross authorizations and in-park commercial with all applicable park area receipts are expected to exceed $25,000, use authorizations. management plans, policies and an in-park commercial use authorization Gross receipts means the total amount regulations; and (4) meet all other may not authorize the services. In that of revenue received by a holder, in cash, requirements of this part. The Director instance a concessions contract or other credit, or barter or any other form of must require that provision of services applicable authorization must be issued. compensation, from persons patronizing under a commercial use authorization In-park commercial use authorizations a holder’s services. are accomplished in a manner that is must contain appropriate provisions Holder means a person to whom a consistent to the highest practicable limiting the holder’s provision of commercial use authorization has been degree with the preservation and services in a manner consistent with the issued. conservation of the resources and values limitations of this part. Incidental activity commercial use of the applicable park area. authorization means a commercial use § 52.7 Is a non-profit organization required authorization that authorizes the holder § 52.5 What are examples of an incidental to obtain a commercial use authorization in to provide specified commercial activity commercial use authorization? order to provide services to visitors in a services to visitors to a park area when An incidental activity commercial use park area? the services originate and terminate authorization authorizes the holder to Unless a non-profit organization holds outside of park area boundaries. enter a park area to provide commercial a concession contract or is otherwise In-park commercial use authorization services to visitors if those services authorized to conduct visitor-related means a commercial use authorization originate and terminate outside of the commercial activities in a park area, a (issued only if projected annual gross park area’s boundaries. The non-profit organization is required to receipts under the authorization are less authorization does not authorize obtain a commercial use authorization than $25,000) that authorizes the holder solicitation of customers, sales, payment in order to conduct visitor-related to provide specified commercial or other direct commercial activity commercial activities in a park area if services to visitors of a park area that within a park area. An example of the the non-profit organization derives originate and are provided solely within type of services authorized by an taxable income from the conduct of the the boundaries of a park area. incidental activity commercial use activities. If a non-profit organization
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demonstrates to the satisfaction of the part, that it is not appropriate to issue including non-profit organization Director that it derives no taxable a commercial use authorization for the applicants, would have similar income from the provision of the specified commercial services, the limitations placed on the number of services or if all income derived is Director will so advise the requester in permits issued based on criteria exempt from taxation under the terms of writing. If the Director determines, in outlined in DO–53/RM–53. An the Internal Revenue Code, the non- accordance with section 52.4 of this incumbent holder will have no right or profit organization will not be required part, that it appears to be appropriate to any form of preference to issuance of a to obtain a commercial use issue a commercial use authorization for subsequent commercial use authorization in order to conduct the the specified services under this part, authorization or Special Park Use activity. However, the activities of a and the Director considers under this Permit. non-profit organization in a park area part that there is no need to limit the are subject to similar oversight and number of commercial use § 52.14 When will the Director establish control through a Special Park Use authorizations for the specified services, visitor use limits? Permit and issued according to the the Director will seek additional The Director will establish visitor use provisions of Director’s Order 53 and information to support completing the limits if the Director determines that the Reference Manual 53 (DO–53/RM–53). CUA form. The Director will then send The Special Park Use Permit shall the requester a proposed commercial limits are appropriate to protect park include appropriate terms, conditions, use authorization with conditions. A area visitors or resources. If visitor use and requirements, including without signed copy of the proposed commercial limits are established, authorized visitor limitation insurance requirements and use authorization, and, where required, use will be allocated by the Director fees adopted by the Director under a non-refundable application fee among all holders of commercial use separate legal authority. payment, must be submitted to the authorizations and Special Park Use applicable park area. Upon receipt of Permits in a fair and equitable manner. § 52.8 When must the Director limit the this submission, the Director will make Incumbent holders have no right of number of Special Park Use Permits to be preference for visitor use allocations. If issued for a park area? a final decision as to whether to issue a commercial use authorization for the it is not feasible to fairly and equitably The Director must limit the number of specified commercial services in allocate limited visitor use among all Special Park Use Permits issued for a accordance with this part and as to holders, the Director must limit the park area, including those issued to whether the applicant is qualified to number of commercial use non-profit organizations, if the Director provide the services. authorizations to be issued in determines that issuing an unlimited accordance with this part. number of such permits is inconsistent § 52.12 When must the Director limit the with the preservation and proper number of commercial use authorizations § 52.15 What special responsibilities does management of the resources and values to be issued? the Director have if only a limited number of the park area or is inconsistent with The Director must limit the number of of commercial use authorizations are the provisions of DO–53/RM–53. commercial use authorizations issued issued or if the Director establishes visitor for a particular type of commercial use limits? Subpart C—Issuance of Commercial services if the Director determines that If the Director limits the number of Use Authorizations. issuing an unlimited number of such commercial use authorizations issued commercial use authorizations is § 52.9 Who may be issued a commercial for a park area with respect to a inconsistent with the preservation and use authorization? particular type of commercial services, Any person may request the Director proper management of the resources and values of the park area. The Director and/or, if the Director establishes visitor to issue a commercial use authorization use limits under this part, the Director in accordance with this part and if the must also limit the number of commercial use authorizations issued must take appropriate measures to Director issues a commercial use assure that all holders provide quality authorization, the Director upon request for a park area if the Director determines in accordance with section 52.14 of this services to visitors at rates and charges must issue a similar commercial use that are reasonable and appropriate. authorization to all qualified persons, part to establish visitor use limits and Unless otherwise provided in the subject to section 51.12 of this part. No that continuation of issuance of an contract, the reasonableness and one is entitled to issuance of a unlimited number of commercial use appropriateness of rates and charges commercial use authorization. Issuance authorizations makes infeasible a fair of a commercial use authorization is in and equitable distribution of visitor use shall be determined primarily by the discretion of the Director. allocations. comparison with those rates and charges for facilities, goods, and services of § 52.10 How does a person request the § 52.13 What happens if the Director determines to limit the number of comparable character under similar issuance of a commercial use conditions, with due consideration to authorization? commercial use authorizations or Special Park Use Permits to be issued? the following factors and other factors To request issuance of a commercial deemed relevant to the Director: length use authorization, a person must submit If the Director determines to limit the number of commercial use of season, peakloads, average percentage a written request. The written request of occupancy, accessibility, availability must be mailed or delivered to the authorizations to be issued for a particular type of commercial services, and costs of labor and materials, and Director (to the attention of the type of patronage. Such rates and Superintendent of the applicable park). the issuance of the available commercial use authorizations must be charges may not exceed the market rates § 52.11 What happens after a written accomplished by the Director by and charges for comparable facilities, request for issuance of a commercial use random selection under which all goods, and services after taking into authorization is made? qualified applicants have an equal account the factors referred to in the If the Director determines, in opportunity to obtain an authorization. preceding sentence. accordance with section 52.4 of this Special Park Use Permit applicants,
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§ 52.16 What fees must the Director terms of a subsequent commercial use services specified in the authorization charge in connection with a commercial use authorization. issued. authorization? Dated: November 13, 2002. The Director must charge a reasonable § 52.22 May the Director terminate a fee for a commercial use authorization, commercial use authorization? Paul Hoffman, in addition to any application fee. The Yes. A commercial use authorization Deputy Assistant Secretary, Fish and Wildlife fee must at least be sufficient to recover must contain appropriate provisions and Parks. the Director’s costs associated with allowing the Director to terminate the [FR Doc. 02–29783 Filed 11–26–02; 8:45 am] management and administration of the authorization without liability at any BILLING CODE 4310–70–P holder’s activities under the time at the discretion of the Director. authorization. The fee may also include § 52.23 What reporting requirements must the costs for the maintenance and repair a commercial use authorization contain? DEPARTMENT OF COMMERCE of park area resources impacted by the Commercial use authorizations must holder’s activities. If a holder is contain appropriate provisions requiring National Oceanic and Atmospheric assigned the use of improvements the permittee to provide the Director Administration within a park area, the fee must also annually a statement of its gross receipts include the fair value of the use of the for the prior year’s activities and any 50 CFR Part 648 assigned improvements. specific information related to the [Docket No.; I.D. 110602A] § 52.17 How will the Director expend fees commercial use that the Director may received from holders? request, including but not limited to, RIN 0648–AQ30 All fees paid to the Director pursuant visitor use statistics and resource impact to commercial use authorizations shall assessments. If a commercial use Fisheries of the Northeastern United be expended in the park area where authorization authorizes the conduct of States; Summer Flounder, Scup, and collected to pay for management and commercial services in more than one Black Sea Bass Fisheries; 2003 administrative costs associated with park area, gross receipts and other Specifications commercial use authorizations and for requested information and reports must AGENCY: National Marine Fisheries other park area activities. be provided on an individual park area basis. Service (NMFS), National Oceanic and Subpart D—Terms and Conditions of Atmospheric Administration (NOAA), § 52.24 May incumbent holders obtain Commerce. Commercial Use Authorizations rights or a preference to the issuance of subsequent visitor use authorizations or to ACTION: Proposed rule; request for § 52.18 What is the term of a commercial particular visitor use allocations? comments. use authorization? No. A commercial use authorization A commercial use authorization must SUMMARY: NMFS proposes specifications will not grant the holder a right or have a term of two years or less. for the 2003 summer flounder, scup, preferences of any form to the issuance and black sea bass fisheries. The of subsequent commercial use § 52.19 May a commercial use implementing regulations for the authorization be transferred? authorizations or to particular visitor Fishery Management Plan for the use allocations. No. A commercial use authorization is Summer Flounder, Scup, and Black Sea not transferable. All commercial use § 52.25 What records must a holder Bass Fisheries (FMP) require NMFS to authorizations must contain provisions maintain and what access does the Director publish specifications for the upcoming prohibiting their sale or transfer. have to these records? fishing year for each of the species and § 52.20 May a commercial use A commercial use authorization must to provide an opportunity for public authorization provide an exclusive right to contain appropriate provisions requiring comment. NMFS requests comment on provide commercial services in a park the holder to maintain normal proposed management measures for the area? accounting books and records and 2003 summer flounder, scup, and black No. Commercial use authorizations granting the Director and the General sea bass fisheries. The intent of this may only authorize a non-exclusive Accounting Office access to such books action is to establish allowed 2003 right to provide commercial services in and records at any time for the purpose harvest levels and other measures to a park area. of determining compliance with the attain the target fishing mortality (F) or terms of a commercial use service exploitation rates, as specified for these § 52.21 May a commercial use authorization and this part. species in the FMP. authorization permit the construction of structures, fixtures, or improvements on § 52.26 What other terms and conditions DATES: Public comments must be lands located within the boundaries of a may or must a commercial use received (see ADDRESSES) no later than park area? authorization contain? 5 p.m. eastern standard time on No. A commercial use authorization Commercial use authorizations must December 12, 2002. may not authorize the construction of contain such provisions as are otherwise ADDRESSES: Copies of supporting structures, fixtures or improvements on required by law and must contain such documents used by the Summer lands located within the boundaries of provisions as the Director determines Flounder, Scup, and Black Sea Bass a park area. A commercial use are necessary and appropriate (1) to Monitoring Committees; the authorization may assign a holder use of protect park area visitors; (2) to assure Environmental Assessment, Regulatory existing structures, fixtures or that holders provide appropriate Impact Review, Initial Regulatory improvements when necessary to assist services to visitors; and (3) to protect Flexibility Analysis (EA/RIR/IRFA); and in providing services to visitors. An and properly manage the resources and the Essential Fish Habitat Assessment incumbent holder shall have no right or values of the park area. Commercial use are available from Patricia A. Kurkul, any form of preference to the continuing authorizations must also contain Regional Administrator, Northeast utilization of assigned structures, appropriate provisions strictly limiting Region, National Marine Fisheries fixtures or improvements under the the holder’s conduct of services to the Service, One Blackburn Drive,
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Gloucester, MA 01930–2298. The EA/ and New England Fishery Management following year. However, complete RIR/IRFA is also accessible via the Councils, is required to review annually landings data for the year were not Internet at http:/www.nero.nmfs.gov. the best available scientific information available until after the beginning of the Written comments on the proposed and to recommend catch limits and subsequent fishing year. As a result, it specifications should be sent to Patricia other management measures that will was impossible to compile complete A. Kurkul at the same address. Mark on achieve the target F or exploitation rate landings data for one fishing year, the outside of the envelope, for each fishery. The Council’s Demersal establish overages, and finalize ‘‘Comments—2003 Summer Flounder, Species Committee and the adjustments for the following year prior Scup, and Black Sea Bass Commission’s Summer Flounder, Scup, to the start of the next fishing year on Specifications.’’ Comments may also be and Black Sea Bass Board (Board) then January 1. It was often necessary for sent via facsimile (fax) to (978) 281– consider the MC’s recommendations NMFS to publish several quota 9371. Comments will not be accepted if and any public comment and make their adjustments over the course of the submitted via e-mail or the Internet. own recommendations. While the Board fishing year as additional landings data FOR FURTHER INFORMATION CONTACT: action is final, the Council’s from the previous year became Sarah McLaughlin, Fishery Policy recommendations must be reviewed by available. These frequent adjustments Analyst, (978) 281–9104, fax (978) 281– NMFS to assure that they comply with complicated the resource management 9135, e-mail FMP objectives. The Council and Board efforts of state marine fisheries agencies [email protected]. made their annual recommendations at and hampered efficient planning by a joint meeting held August 6–8, 2002. commercial fishers. SUPPLEMENTARY INFORMATION: NMFS established a cut-off date of Explanation of Research Set-Asides Background October 31 for landings data to be used In 2001, regulations were in calculating quota overages and The summer flounder, scup, and implemented under Framework making the resultant adjustments to the black sea bass fisheries are managed Adjustment 1 to the FMP to allow up to quotas for the following fishing year. cooperatively by the Atlantic States 3 percent of the Total Allowable Any additional overages due to landings Marine Fisheries Commission Landings (TAL) for each of the species occurring after October 31, or landings (Commission) and the Mid-Atlantic to be set aside each year for scientific reported late, will be deducted from a Fishery Management Council (Council) research purposes. For the 2003 fishing state’s (or period’s) quota allocation the in consultation with the New England year, a Request for Proposals was next year (i.e., 2 years later). This and South Atlantic Fishery Management published in March 2002 to solicit proposed rule calculates commercial Councils. The management units research proposals based upon the quotas based on the proposed TALs and specified in the FMP include summer research priorities that were identified TACs and the formulas for allocation flounder (Paralichthys dentatus) in U.S. by the Council (67 FR 13602, March 25, contained in the FMP. If NMFS waters of the Atlantic Ocean from the 2002). The deadline for submission of approves a different TAL or TAC at the southern border of North Carolina proposals was May 13, 2002. Five final rule stage, the commercial quotas northward to the U.S./Canada border, applicants were notified in August 2002 will be recalculated based on the and scup (Stenotomus chrysops) and that their research proposals had formulas in the FMP. Likewise, if new black sea bass (Centropristis striata) in received favorable preliminary review. information indicates that overages have U.S. waters of the Atlantic Ocean from For informational purposes, this occurred and deductions are necessary, ° ′ 35 13.3 N. lat. (the latitude of Cape proposed rule includes a statement NMFS will publish notice of the Hatteras Lighthouse, Buxton, NC) indicating the amount of quota that has adjusted quotas in the Federal Register. northward to the U.S./Canada border. been preliminarily set aside for research NMFS anticipates that the information Implementing regulations for these purposes. The quota set-asides may be necessary to determine whether overage fisheries are found at 50 CFR part 648, adjusted in the final rule establishing deductions are necessary will be subparts A, G (summer flounder), H the annual specifications for the available by time of publication of the (scup), and I (black sea bass). summer flounder, scup, and black sea final rule to implement these The regulations outline the process bass fisheries or, if the total amount of specifications. The commercial quotas for specifying annually the catch limits the quota set-aside is not awarded, contained in this proposed rule for for the summer flounder, scup, and NMFS will publish a notice in the summer flounder, scup, and black sea black sea bass commercial and Federal Register to restore the unused bass do not reflect any deductions for recreational fisheries, as well as other research set-aside amount to the overages. The final rule, however, will management measures (e.g., mesh applicable TAL. contain quotas that have been adjusted requirements, minimum fish sizes, gear consistent with the procedures Explanation of Quota Adjustments Due restrictions, possession restrictions, and described above and contained in the to Quota Overages area restrictions) for these fisheries. The regulatory amendment. Accordingly, measures are intended to achieve the In 2002, NMFS published final landings information will be based annual targets set forth for each species regulations to implement a regulatory upon: (1) Landings reported for the in the FMP, specified either as an F rate amendment (67 FR 6877, February 14, period January 1–October 31, 2002; (2) or an exploitation rate (the proportion of 2002) that revised the way in which the landings from the period November 1– fish available at the beginning of the commercial quotas for summer December 31, 2001; and (3) late reported year that are removed by fishing during flounder, scup, and black sea bass are landings for the period January 1– the year). Once the catch limits are adjusted if landings in any fishing year October 31, 2001. established, they are divided into quotas exceed the quota allocated (thus based on formulas contained in the resulting in a quota overage). The FMP Summer Flounder FMP. previously required that any landings in The FMP specifies a target F for 2003 As required by the FMP, a Monitoring excess of a commercial quota allocation of Fmax, that is, the level of fishing that Committee (MC) for each species, made for a state or period in one year must be produces maximum yield per recruit. up of members from NMFS, the deducted from that state’s or period’s The best available scientific information Commission, and both the Mid-Atlantic annual quota allocation for the indicates that Fmax is currently equal to
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0.26 (equal to an exploitation rate of longer be considered overfished, After deducting the research set-aside, about 22 percent from fishing). The TAL although it will still be below the 234.6 the TAL would be divided into a associated with the target F is allocated million lb (106,400 mt) necessary to commercial quota of 13.92 million lb 60 percent to the commercial sector and produce maximum sustainable yield (6,314 mt) and a recreational harvest 40 percent to the recreational sector. (Bmsy). Because the Magnuson-Stevens limit of 9.28 million lb (4,209 mt). The commercial quota is allocated to the Fishery Conservation and Management In addition, the Commission is coastal states based upon percentage Act (Magnuson-Stevens Act) requires expected to maintain the voluntary shares specified in the FMP. that stocks be rebuilt to the level that measures currently in place to reduce The status of the summer flounder produces maximum sustainable yield regulatory discards that occur as a result stock is re-evaluated annually. The most (MSY), additional rebuilding of the recent assessment, updated by the stock will still be required. of landing limits established by the Northeast Fisheries Science Center The Summer Flounder MC reviewed states. The Commission established a (NEFSC) Southern Demersal Working the stock status and the projections system whereby 15 percent of each Group in June 2002, indicated that the based upon these data and made a TAL state’s quota would be voluntarily set summer flounder stock is overfished recommendation to achieve the target F. aside each year to enable vessels to land and overfishing is occurring, according The Summer Flounder MC an incidental catch allowance after the to the definitions in the FMP. This recommended a TAL of 23.3 million lb directed fishery has been closed. The conclusion was derived from the fact (10,569 mt), which would be allocated intent of the incidental catch set-aside is that, in 2001, the estimated total stock 13.98 million lb (6,341 mt) to the to reduce discards by allowing biomass of 94.6 million lb (42,900 commercial sector and 9.32 million lb fishermen to land summer flounder metric tons (mt)) was below the biomass (4,227 mt) to the recreational sector. caught incidentally in other fisheries threshold of 117.3 million lb (53,200 mt) This TAL was determined by the MC to during the year, while also ensuring that under which the stock is considered have a 50–percent probability of the state’s overall quota is not exceeded. overfished (Bmsy), and the estimated F of achieving the F target (0.26) that is These Commission set-asides are not 0.27 was marginally above the FMP specified in the FMP, if the 2002 TAL included in any tables in this document, overfishing definition of 0.26 (Fmax). and assumed discard levels are not because NMFS does not have authority However, the F of 0.27 estimated for exceeded. Biomass estimates for 2002 to establish such subcategories. 2001 represents a significant decline are lower than had previously been NMFS proposes to implement the since 1994, when F was estimated to be estimated, due to a combination of: 23.3–million lb (10,569–mt) TAL with a 1.32. Also, total stock biomass has recreational landings that have 91,163–lb (41.4–mt) research set-aside, increased substantially from below 39.7 consistently exceeded the harvest million lb (18,008 mt) in 1989 to 94.6 targets, lower recruitment in recent as recommended by the Council and million lb (42,900 mt) in 2001. years, and to a possible underestimation Board. The 9.28–million lb (4,209–mt) Likewise, spawning stock biomass (SSB) of discards in stock forecasts. Therefore, recreational harvest limit is allocated on has increased steadily from 20.51 because the biomass estimate is smaller a coastwide basis. The commercial million lb (9,303 mt) in 1993 to 84.21 than previously estimated, the quota is allocated to the states as shown million lb (38,192 mt) in 2001, the maximum TAL that has at least a 50– in Table 1. Table 1 presents the highest value in the time series. percent probability of achieving the allocations by state, with and without Projections based on assumptions about target F is lower. It is important to the commercial portion of the 91,163–lb future landings, discards, and emphasize that the recommended TAL (41.4–mt) research set-aside deduction. recruitment to the stock indicate that, if for 2003 is still considerably larger than These state quota allocations are the 2002 TAL and projected discard the average TAL from 1995–2001 of 18.5 preliminary and are subject to a level are not exceeded, total stock million lb. reduction if there are overages of a biomass will exceed, by December 31, The Council and Board reviewed the state’s 2002 quota (using the landings 2002, the biomass threshold of 117.3 Summer Flounder MC’s information and procedures described million lb (53,200 mt), below which the recommendation and adopted it. The earlier). Any commercial quota stock would be considered overfished. Council and Board also agreed to set adjustments will be published in the When the total stock biomass is above aside 91,163 lb (41.4 mt) of the summer Federal Register in the final rule this biomass threshold, the stock will no flounder TAL for research activities. implementing these specifications.
TABLE 1. 2003 PROPOSED INITIAL SUMMER FLOUNDER STATE COMMERCIAL QUOTAS
Commercial Quota Commercial Quota with Percent Research Set-Aside State Share lb kg1 lb kg1
ME 0.04756 6649 3,016 6,623 3,004 NH 0.00046 64 29 64 29 MA 6.82046 953,502 432,501 949,772 430,809 RI 15.68298 2,192,485 994,494 2,183,907 990,603 CT 2.25708 315,540 143,127 314,306 142,567 NY 7.64699 1,069,051 484,914 1,064,869 483,016 NJ 16.72499 2,338,158 1,060,571 2,329,010 1,056,421 DE 0.01779 2,487 1,128 2,477 1,124 MD 2.03910 285,067 129,304 283,951 128,798 VA 21.31676 2,980,089 1,351,746 2,968,429 1,346,457 NC 27.44584 3,836,936 1,740,405 3,821,924 1,733,596 Total 100.00 13,980,029 6,341,235 13,925,332 6,316,424 1 Kilograms are as converted from pounds and do not add to the converted total due to rounding.
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Scup existing rebuilding schedule for scup the same level of discards in 2003 as Scup was most recently assessed at established by Amendment 8. On April used in 2002 (2.15 million lb (975 mt)), the 35th Northeast Regional Stock 28, 1999, NMFS disapproved that the Scup MC recommended a TAC of Assessment Review Committee (SARC rebuilding plan for scup because the 15.65 million lb (7,099 mt). 35) in June 2002. SARC 35 concluded rebuilding schedule did not appear to be Using the sector allocation specified sufficiently risk-averse. NMFS advised that scup are no longer overfished, but in the FMP (commercial 78 percent; the Council that the exploitation rate stock status with respect to overfishing recreational—22 percent), the MC’s reflects the overfishing definition cannot currently be evaluated. Scup recommendation would result in a SSB is increasing. The NEFSC spring (converted to an F rate) which is conceptually sound and supported by commercial TAC of 10.08 million lb survey 3–year average (2000 through (4,572 mt) and a recreational TAC of 2002) for scup SSB was 3.20 kg/tow, NMFS. Therefore, for the short term, the proposed scup specifications for 2003 2.84 million lb (1,288 mt). Using the which is about 15 percent higher than same commercial and recreational the threshold that defines the stock as are based on an exploitation rate of 21 percent which was found to be discard estimates used for the 2001 overfished (2.77 kg/tow of SSB). SARC specifications (i.e., 2.08 million lb (943 35 noted that the change in stock status conceptually sound. NMFS believes that mt) for the commercial sector, and 0.07 (from overfished to not overfished) was the long-term risks associated with the million lb (32 mt) for the recreational the result of an extremely high survey disapproved rebuilding plan are not observation in 2002 (8.94 kg/tow of applicable to the proposed sector), the Scup MC recommendation SSB) and its contribution to the specifications since they apply only for would result in a commercial TAL of 8.0 calculation of the 3–year moving 1 fishing year and will be reviewed, and million lb (3,629 mt) and a recreational average. However, SARC 35 also modified as appropriate, by the Council harvest limit of 2.77 million lb (1,256 cautioned that the spring survey index and NMFS annually. The scup stock has mt). for 2002 is highly uncertain because the shown signs of significant rebuilding The Council and Board reviewed the abundance of all age groups in the and is no longer overfished. It is, Scup MC’s recommendation, but did not therefore, not necessary for 2003 to survey increased substantially as adopt it. Instead, the Council and Board deviate from the specified exploitation compared with the 2001 results. adopted an 18.65–million lb (8,459–mt) rate. Furthermore, setting the scup SARC 35 indicated that relative TAC and a 16.5–million lb (7,484–mt) exploitation rates on scup have declined specifications using an exploitation rate of 21 percent is a more risk-averse TAL. This recommendation is 53 in recent years, although the absolute percent higher than the 2002 TAL. The value of F cannot be determined approach to managing the resource than not setting any specifications until the Council and Board justified their because of a lack of reliable discard recommendation by stating that, if scup estimates and information regarding the Council submits, and NMFS approves, a biomass is approximately equal to B , length composition of scup landings revised rebuilding plan that complies msy then a 16.5–million lb (7,484–mt) TAL and discards. Overall, most recent scup with all Magnuson-Stevens Act corresponds to 50 percent of the upper survey observations indicate strong requirements. recruitment and some rebuilding of age The Scup MC reviewed the available estimate of the scup LTPC, which is structure. SARC 35 noted that the stock data in making its recommendation to estimated to be 33 million lb (14,969 can likely sustain modest increases in the Council. Given the uncertainty mt). This TAL recommendation is the catch, but that such increases should be associated with the spring survey, the upper limit of the range of yields that taken with due consideration of the Scup MC used a new approach to would be expected at Bmsy, the level at uncertainties associated with the stock develop a TAC recommendation. The which the fishery is no longer status determination. stock is just above the overfished considered overfished. The Council and The target exploitation rate for scup in threshold and this indicates that it is at Board also agreed to set aside 66,650 lb 2003 is 21 percent. The total allowable approximately Bmsy. Although MSY has (30.2 mt) of the scup TAL for research catch (TAC) associated with a given not been calculated for scup, long-term activities. The TAL, after deducting the exploitation rate is allocated 78 percent potential catch (LTPC) has been used as 66,650–lb (30.2–mt) research set-aside, to the commercial sector and 22 percent a proxy. The NEFSC has indicated that would result in a commercial quota of to the recreational sector by the FMP. the LTPC ranges from 22–33 million lb 12.42 million lb (5,634 mt) and a Scup discard estimates are deducted (9,979–14,969 mt), based upon recreational harvest limit of 4.01 million from both sectors’ TACs to establish historical catches. These results were lb (1,819 mt). TALs for each sector (TAC less discards corroborated with yield per recruit NMFS is proposing to implement the = TAL). The commercial TAL is then analysis indicating that the long-term Council’s and Board’s TAC and TAL allocated on a percentage basis to three average yield would be approximately recommendation because it is within quota periods, as specified in the FMP: 31 million lb (14,061 mt). If these MSY the range of yields that could be Winter I (January-April)--45.11 percent; proxies are accurate, then yields at Bmsy Summer (May-October)--38.95 percent; could range from approximately 11–16.5 expected at Bmsy. Given the lack of and Winter II (November-December)-- million lb (4,990–7,484 mt). SARC 35 information regarding the status of the 15.94 percent. indicated that the scup stock ‘‘can likely stock (i.e., status based solely upon the The proposed scup specifications for sustain modest increases in catches, but survey indices), this method of 2003 are based on an exploitation rate managers should do so with determining the TAC/TAL is reasonable. in the rebuilding schedule that was consideration of high uncertainty in Traditional methods would have approved when scup was added to the stock status determination.’’ Given this resulted in a much higher TAC/TAL. If FMP in 1996, prior to passage of the advice, the Scup MC recommended that scup abundance is increasing, as Sustainable Fisheries Act (SFA). the TAL for 2003 be 13.5 million lb preliminarily signals indicate, the Subsequently, to comply with the SFA (6,123 mt), a value that is 25 percent Council’s TAC/TAL recommendation is amendments to the Magnuson-Stevens above the 2002 TAL, yet within the likely to achieve the 21–percent Act, the Council prepared Amendment range of yields that could be expected exploitation rate that is required by the 12, which proposed to maintain the at Bmsy, as discussed above. Assuming FMP.
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Disapproval of Recommended Scup jeopardize the effectiveness of the limit The Council and Board did not Winter I Possession Limit by eliminating the ability to assess recommend any other changes to the dockside violations at the time of existing commercial minimum mesh To achieve the commercial quotas, the landing. The current possession limit size, minimum mesh threshold Council and Board recommended a provision is effective primarily because possession limit, or the commercial 15,000–lb (6.8- mt) per week (Sunday enforcement officers need only be minimum fish size. Therefore, these through Saturday) landing limit for the present for one landing to assess a management measures are proposed to scup Winter I quota period (January- violation. remain unchanged. April). NMFS is disapproving the For the Winter I period, NMFS is Council’s recommendation to proposing to retain the current 10,000– The 2003 commercial allocation implement a 15,000–lb (6.8–mt) per lb (4.5–mt) possession limit, with a recommended by the Council is shown, week landing limit for the Winter I reduction to 1,000 lb (454 kg) when 80 by period, in Table 2. Table 2 presents quota period. NMFS’ Office of Law percent of the period’s quota is the allocations with, and without, the Enforcement has indicated that a weekly projected to be harvested. Public 66,650–lb (30.2–mt) research set-aside landing limit would complicate, and comments are requested on this deduction. These 2003 allocations are possibly compromise, effective dockside proposed measure. preliminary and may be subject to monitoring and enforcement. With a For the Winter II quota period downward adjustment due to 2002 weekly landing limit, multiple landings (November-December), the Council and overages in the final rule implementing would have to be monitored for each Board recommended a 1,500–lb (680– these specifications, using the vessel on a weekly basis. This would be kg) possession limit. NMFS is proposing procedures for calculating overages an inefficient use of limited law to implement the recommended 1,500– described earlier. enforcement resources and could lb (680–kg) Winter II possession limit.
TABLE 2. 2003 PROPOSED INITIAL COMMERCIAL SCUP QUOTA AND POSSESSION LIMITS
Commerical Possession Limits Quota With Research Period Percent TAC1 Discards2 W/O Research Lb Kg Set-Aside Set-Aside
Winter I 45.11 6,562,152 936,935 5,625,217 5,601,766 10,0003 4,536 (2,976,542) (424,987) (2,551,555) (2,540,918) Summer 38.95 5,666,056 808,991 4,857,065 4,836,816 na* na* (2,570,080) (366,952) (2,203,128) (2,193,943) Winter II 15.94 2,318,792 331,074 1,987,718 1,979,431 1,500 680 (1,051,786) (150,173) (901,614) (897,855) Total4 100.00 14,547,000 2,077,000 12,470,000 12,418,013 (6,598,408) (942,111) (5,656,297) (5,632,716) 1 Total allowable catch, in pounds (kilograms in parentheses). 2 Discard estimates, in pounds (kilograms in parentheses). 3 The Winter I landing limit would drop to 1,000 lb (454 kg) upon attainment of 80 percent of the seasonal allocation. 4 Totals subject to rounding error. * n/a-Not applicable.
Scup Gear Restricted Areas (GRAs)— the GRAs, if they used specially effectiveness of the modifications. Request for Comments modified trawl nets (possessing an Observed trips on vessels using In 2000, the 31st Stock Assessment escapement extension of 45 meshes of modified trawl gear could provide such Review Committee (SARC 31) 5.5–inch (13.97–cm) square mesh information. The ACCSP observer emphasized the need to reduce scup between the body of the net and the standards specify a certain level of mortality resulting from discards in the codend). NMFS disapproved the observer coverage, generally less than scup fishery and in other fisheries. In recommendation because the supporting 100 percent. To implement such a response to that recommendation, GRAs research regarding the effectiveness of program, NMFS would likely need to were established during the 2000 fishing the modified trawl gear was not require: (1) Pre-enrollment of all vessels year (65 FR 33486, May 24, 2000, and complete. intending to make trips into the GRAs; 65 FR 81761, Dec. 27, 2000) and For the 2003 fishing year, the Council (2) declaration of the intended number modified for the 2001 fishing year (66 has again recommended allowing of trips into the GRAs by each vessel; (3) FR 12902, March 1, 2001). The GRAs vessels to fish for non-exempt species notification from the vessels owner 5 prohibit trawl vessels from fishing for, with small mesh in the GRAs, provided days prior to the start of a trip; (4) or possessing, certain non-exempt they use specially modified trawl nets. issuance of waivers for trips not species (Loligo squid, black sea bass and In addition, however, the Council has requiring an observer; and, possibly, (5) silver hake (whiting)) when fishing with recommended requiring vessels to carry vessel monitoring systems (VMS) on mesh smaller than that required to fish observers, consistent with Atlantic board all participating vessels. These for scup. Coastal Cooperative Statistics Program administrative and enforcement In the proposed rule for the 2002 (ACCSP) observer standards. requirements preclude further fishing year specifications (66 FR 58097, NMFS has previously indicated that consideration of this alternative at this November 20, 2001), NMFS gear modifications are a potential time. Rather, NMFS proposes to disapproved a Council recommendation solution to the scup bycatch problem, implement an alternative requiring 100– that would have allowed small-mesh but that additional work is needed to percent observer coverage for all vessels vessels to fish for non-exempt species in obtain more information regarding the fishing with small mesh for non-exempt
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species in the GRAs, using the modified index based on scientific sampling of average of the 2001 and 2002 survey gear. This proposed alternative would the distribution and relative points) and if an exploitation rate of 48 impose significantly fewer abundance), indicate a significant percent is assumed for 1998, the TAL administrative and enforcement reduction in mortality from 1998 associated with a 25–percent complexities, and provide more data to through 2001 relative to 1996 and 1997 exploitation rate would be 6.0 million lb evaluate the effectiveness of the gear levels. (2,722 mt). The Black Sea Bass MC modifications. Results of the spring trawl surveys indicated that the stock size was likely Specifically, NMFS is seeking conducted by the NEFSC indicate that to continue to increase, and determined comment through this proposed rule on the black sea bass stock size has that the 2003 TAL could remain the an alternative whereby vessels fishing increased in recent years. The 3–year same as the 2002 TAL (6.8 million lb for non-exempt species (Loligo squid, moving average of exploitable biomass (3,084 mt)) and achieve a 25–percent black sea bass, and silver hake recorded by the NEFSC spring trawl exploitation rate, as required by the (whiting)) with mesh less than the survey for 2000 through 2002 (0.59 kg/ FMP for 2003. The Black Sea Bass MC minimum mesh size required to fish for tow) is 64 percent higher than the value also recommended that all other scup (specified at § 648.123) in the recorded for 1999 through 2001 (0.36 management measures remain GRAs (described at § 648.122) for any kg/tow). The stock is currently at unchanged for 2003. portion of a trip would be required to approximately 2/3 the level of At their August 2002 meeting, the use modified trawl gear (possessing an abundance that defines an overfished Council and Board adopted the MC’s escapement extension of 45 meshes of stock (1977–1979 average of 0.9 kg/tow recommendation for a status-quo 6.8 5.5–inch (13.97–cm) square mesh of exploitable biomass). In addition, million-lb (3,084–mt) TAL for the 2003 between the body of the net and the black sea bass recruitment indices (fish fishing year, with a research set-aside of codend), and would also be required to VerDate 0ct<31>2002 16:39 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 E:\FR\FM\27NOP1.SGM 27NOP1 70910 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules TABLE 3. 2003 PROPOSED INITIAL BLACK SEA BASS QUARTERLY COASTWIDE COMMERCIAL QUOTAS AND POSSESSION LIMITS Possession With Research Limits Quarter Per- W/O Research cent Set-Aside1 Set-Aside1 Lb Kg 1 (Jan—Mar) 38.64 1,287,485 1,274,671 7,000 3,175 (583,993) (578,181) 2 (Apr—Jun) 29.26 974,943 965,240 5,000 2,268 (442,227) (437,826) 3 (Jul—Sep) 12.33 410,836 406,747 5,000 2,268 (186,352) (184,497) 4 (Oct—Dec) 19.77 658,736 652,180 5,000 2,268 (298,798) (295,824) Total 100.00 3,332,000 3,298,838 (1,511,370) (1,496,328) 1 Commercial Quotas in pounds (kilograms in parentheses). Classification bass fisheries would be published; (2) black sea bass. Alternative 2 consists of This proposed rule has been the indefinite management measures the most restrictive quotas (i.e., lowest determined to be not significant for (minimum sizes, bag limits, possession landings) considered by the Council and purposes of Executive Order 12866. limits, permit and reporting the Board for all of the species. The Council prepared an Initial requirements, etc.) would remain Alternative 3 consists of the least Regulatory Flexibility Analysis (IRFA) unchanged; (3) there would be no quota restrictive quotas (i.e., highest landings) that describes the economic impact this set-aside allocated to research in 2003; considered by the Council and Board for proposed rule, if adopted, would have and (4) there would be no specific cap all three species. Although Alternative 3 on small entities. on the allowable annual landings in would result in higher landings for A description of the action, why it is these fisheries (i.e., there would be no 2003, it would also likely exceed the being considered, and the legal basis for quota). Because implementation of the biological targets specified in the FMP. this action are contained in the no action alternative would be First, a preliminary adjusted quota preamble to this rule. This proposed inconsistent with the goals and was calculated by deducting the rule does not duplicate, overlap, or objectives of the FMP, its implementing research set-aside from the TAL. Then, conflict with other Federal rules. A copy regulations, and the Magnuson-Stevens the preliminary commercial quota of the complete IRFA can be obtained Act, would substantially complicate the overages for the 2002 fishing year were from the Northeast Regional Office of approved management program for deducted from the initial 2003 quota NMFS (see ADDRESSES) or via the these fisheries, and would very likely alternatives. The quota overages were Internet at http:/www.nero.nmfs.gov. A result in overfishing of the resources, calculated according to the procedures summary of the analysis follows. the no action alternative is not described earlier, using available data as The economic analysis assessed the considered to be a reasonable alternative of September 2002. The resulting impacts of the various management to the preferred action and is not preliminary adjusted commercial quotas alternatives. In the EA, the no action analyzed in the EA/RIR/IRFA. alternatives presented in Table 4 are alternative is defined as follows: (1) no Alternative 1 consists of the harvest provisional and may be further adjusted proposed specifications for the 2003 limits proposed by the Council and in the final rule implementing the 2003 summer flounder, scup, and black sea Board for summer flounder, scup, and specifications. TABLE 4. COMPARISON (IN MILLION LB) OF THE ALTERNATIVES OF QUOTA COMBINATIONS REVIEWED (‘‘FLK’’ IS SUMMER FLOUNDER) 2003 2002 Prelimi- 2003 Com- nary 2003 Re- mercial 2003 Preliminary Rec- Initial search Quota Adjusted reation- TAL Set- Over- CommercialQuota* al Har- Aside age vest Limit Quota Alternative 1 (Preferred) FLK Preferred Alternative 23.30 0.09 0.06 13.87 9.28 Scup Preferred Alternative 16.50 0.07 0.00 12.42 4.01 Black Sea Bass Preferred Alternative (Status quo) 6.80 0.07 0.17 3.13 3.43 Quota Alternative 2 (More Restrictive) FLK Preferred Alternative 2 21.50 0.09 0.06 12.79 8.56 Scup Alternative 2 (Status Quo) 10.77 0.07 0.00 7.95 2.75 Black Sea Bass Alternative 2 4.60 0.07 0.17 2.05 2.31 Quota Alternative 3 (Least Restrictive) FLK Preferred Alternative 3 (Status Quo) 24.30 0.09 0.06 14.47 9.68 Scup Alternative 3 22.00 0.07 0.00 16.71 5.22 VerDate 0ct<31>2002 16:39 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 70911 TABLE 4. COMPARISON (IN MILLION LB) OF THE ALTERNATIVES OF QUOTA COMBINATIONS REVIEWED (‘‘FLK’’ IS SUMMER FLOUNDER)—Continued 2003 2002 Prelimi- 2003 Com- nary 2003 Re- mercial 2003 Preliminary Rec- Initial search Quota Adjusted reation- TAL Set- Over- CommercialQuota* al Har- Aside age vest Limit Quota Alternative 3 (Least Restrictive) Black Sea Bass Alternative 3 7.20 0.07 0.17 3.32 3.64 * Note that preliminary quotas are provisional and may change to account for overages of the 2002 quotas. Table 5 presents the percent change and research set-aside) compared to the associated with each of commercial final adjusted quotas for 2002. quota alternatives (adjusted for overages TABLE 5. PERCENT CHANGE ASSOCIATED WITH ADJUSTED COMMERCIAL QUOTA ALTERNATIVES COMPARED TO 2002 ADJUSTED QUOTA Total Changes In- cluding Overages Quota Alter- Quota Alter- and RSA native 2 native 3 Quota Alter- (Most Re- (Least Re- native strictive) strictive) 1(Preferred) Summer Flounder Aggregate Change -4.48% -11.92% -0.34%* Scup Aggregate Change +71.22% +9.61% +130.36% Black Sea Bass Aggregate Change -0.10% -34.51% +6.16% * Denotes status quo management measures. The status quo or ‘‘no action’’ measure for summer flounder, scup, and black sea bass refers to what most likely will occur in the absence of implementing the proposed regulation. The categories of small entities likely flounder, then a small decrease in the summer flounder quota and a decrease to be affected by this action include summer flounder quota from 2002 to in the adjusted black sea bass quota. commercial and charter/party vessel 2003 would be expected to have a large The Council also analyzed changes in owners holding an active Federal permit proportional reduction in the revenue of total gross revenue that would occur as for summer flounder, scup, or black sea that vessel. Conversely, because that a result of the quota alternatives. bass, as well as owners of vessels that vessel did not derive a large percent of Assuming 2001 ex-vessel prices fish for any of these species in state its revenue from scup in 2001, a large (summer flounder -- $1.62/lb; scup -- waters. The Council estimates that the increase in the scup quota from 2002 to $0.84/lb; and black sea bass -- $1.55/lb), proposed 2003 quotas could affect 1,830 2003 would not be expected to produce the 2003 quotas in Preferred Alternative vessels with a Federal summer flounder, a large proportional increase in the 1 (after overages have been applied) would decrease total summer flounder scup, and/or black sea bass permit, as of revenue of that vessel. Generally, the July 15, 2002. However, the more revenues by approximately $1.1 million, percent of a vessel’s revenue reduction immediate impact of this rule will likely increase total scup revenues by $4.3 depends upon the permits it holds and be felt by the 1,073 vessels that actively million, and decrease total black sea the species it lands. Diversity in participated (i.e., landed these species) bass ex-vessel revenues by less than in these fisheries in 2001, including landings helps to balance losses in one $5,000 relative to 2002 revenues. vessels holding only state permits. fishery with revenue generated from If the decrease in summer flounder The Council estimated the total other fisheries. The Council’s analysis of total ex-vessel gross revenue associated revenues derived from all species the harvest limits in Alternative 1 with the Preferred Alternative is landed by each vessel during calendar (Preferred Alternative) indicated that distributed equally between the 795 year 2001 to determine a vessel’s these harvest levels would produce a vessels that landed summer flounder in dependence and revenue derived from a revenue increase for 321 commercial 2001, the average decrease in gross particular species. This estimate vessels that are expected to be impacted revenue associated with the summer provided the base from which to by this rule. The remaining 752 vessels flounder quota in the Preferred compare the effects of the proposed were projected to incur small revenue Alternative would be $1,324 per vessel. quota changes from 2002 to 2003. For losses (i.e., <5 percent) under If the increase in scup total gross example, if 90 percent of a vessel’s 2001 Alternative 1. The small revenue losses revenue associated with the Preferred revenue was derived from summer were attributed to a decrease in the Alternative is distributed equally VerDate 0ct<31>2002 16:39 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 E:\FR\FM\27NOP1.SGM 27NOP1 70912 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules between the 483 vessels that landed bass quota in Alternative 2 would be flounder landings have generally scup in 2001, the average increase in $2,264 per vessel. exceeded the recreational harvest limits, gross revenue associated with the scup Under Alternative 2, the overall ranging from a 5–percent overage in quota in the Preferred Alternative would decrease in gross revenue associated 1993 to a 122–percent overage in 2000. be $8,984 per vessel and, similarly, if with the three species combined in 2003 In 2001, summer flounder recreational the decrease in black sea bass total gross compared to 2002 is approximately $3.9 landings were 11.64 million lb (5,280 revenue associated with the Preferred million (assuming 2001 ex-vessel mt), exceeding the harvest limit of 7.16 Alternative is distributed equally prices). If this is distributed among the million lb (3,248 mt) by 63 percent. between the 740 vessels that landed 1,073 vessels that landed summer For summer flounder, the adjusted black sea bass in 2001, the average flounder, scup, and black sea bass in 2003 preferred recreational harvest limit decrease in gross revenue associated 2001, the average decrease in revenue of 9.28 million lb (4,209 mt) in with the black sea bass quota in the would be $3,635 per vessel. Alternative 1 is greater than the Preferred Alternative would $7 per The Council’s analysis of Alternative recreational harvest limits for the years vessel. 3 (least restrictive harvest limits) 1995 through 2001. However, it is The overall increase in gross revenue indicated that these harvest levels approximately 5 percent lower than the associated with the three species would produce a revenue increase for 2002 recreational harvest limit, and it combined in 2003 compared to 2002 is any of the 1,073 commercial vessels would be a decrease of approximately approximately $3.3 million (assuming expected to be impacted by this rule. 20 percent from 2001 recreational 2001 ex-vessel prices) under the An analysis of changes in total gross summer flounder landings. The adjusted revenue associated with Alternative 3 Preferred Alternative. If this is summer flounder Alternative 2 indicated that the 2003 quotas (after distributed among the 1,073 vessels that recreational harvest limit of 8.56 million overages have been applied) would landed summer flounder, scup, and/or lb (3,882 mt) in 2003 would be a 12– decrease summer flounder ex-vessel black sea bass in 2001, the average percent decrease from the 2002 revenues by $81,000, and increase scup increase in revenue would be $3,058 per recreational harvest limit, and a 26– and black sea bass ex-vessel revenues by vessel. percent decrease from 2001 recreational approximately $7.9 million, and $0.3 The Councils analysis of Alternative 2 summer flounder landings. The adjusted million, respectively, relative to 2002 Alternative 3 recreational harvest limit (i.e., most restrictive harvest limits) revenues. indicated that these harvest limits is 9.68 million lb (4,391 mt). This is the If the decrease in summer flounder status quo alternative. It is less than 1 would produce a revenue loss for most total gross revenue associated with percent lower than the 2002 recreational of the 1,073 commercial vessels Alternative 3 is distributed equally harvest limit, and represents a 17– expected to be impacted by this rule. between the 795 vessels that landed percent decrease from 2001 recreational Only 64 commercial vessels expected to summer flounder in 2001, the average landings. If either Alternative 1, 2, or 3 be impacted by this rule would decrease in gross revenue associated is chosen, it is possible that more experience a revenue increase under with the summer flounder quota in restrictive management measures may Alternative 2, primarily because a large Alternative 3 would be $101 per vessel. be required to prevent anglers from proportion of their revenues were If the increase in scup total gross exceeding the 2003 recreational harvest derived from scup. revenue is distributed equally between limit, depending upon the effectiveness An analysis of changes in total gross the 483 vessels that landed scup in of the 2002 recreational management revenue associated with Alternative 2 2001, the average increase in gross measures. More restrictive regulations indicated that the 2003 quotas would revenue associated with the scup quota could affect demand for party/charter decrease summer flounder ex-vessel in Alternative 3 would be $16,444 per boat trips. However, party/charter revenues by $2.8 million, increase scup vessel. Similarly, if the increase in total activity in the 1990s has remained ex-vessel revenues by $0.6 million, and gross revenue associated with the black relatively stable, so the effects may be decrease black sea bass ex-vessel sea bass quota in Alternative 3 is minimal. The effect of greater revenues by approximately $1.7 million, distributed equally between the 740 recreational restrictions is not known at relative to 2002 revenues. vessels that landed black sea bass in this time. The Council intends to If the decrease in total gross revenue 2001, the average increase in gross recommend specific measures to attain associated with the summer flounder revenue associated with the black sea the 2003 summer flounder recreational quota in Alternative 2 is distributed bass quota in Alternative 3 would be harvest limit in December 2002, and equally between the 795 vessels that $402 per vessel. will provide additional analysis of the landed summer flounder in 2001, the The overall change in gross revenue measures upon submission of its average decrease in gross revenue associated with the three species recommendations in early 2003. associated with the summer flounder combined in 2003 compared to 2002 Scup recreational landings declined quota in Alternative 2 would be $3,525 would be approximately $8.2 million over 89 percent for the period 1991 to per vessel. If the increase in total gross (assuming 2001 ex-vessel prices) under 1998, then increased by 500 percent revenue associated with the scup quota Alternative 3. If this is distributed from 1998 to 2000. In 2001, recreational in Alternative 2 is distributed equally among the 1,073 vessels that landed landings were 4.26 million lb (1,932 between the 483 vessels that landed summer flounder, scup, and/or black mt). Under Preferred Alternative 1, the scup in 2001, the average increase in sea bass in 2001, the average increase in adjusted scup recreational harvest limit gross revenue associated with the scup revenue would be $7,642 per vessel. for 2003 would be 4.01 million lb (1,819 quota in Alternative 2 would be $1,212 The Council also prepared an analysis mt). This is a 6–percent decrease from per vessel and, similarly, if the decrease of the alternative recreational harvest 2001 recreational landings. However, it in black sea bass total gross revenue limits. The 2003 recreational harvest is approximately 48 percent higher than associated with Alternative 2 is limits were compared with previous the scup recreational harvest limit in distributed equally between the 740 years through 2001, the most recent year 2002. The Alternative 2 scup vessels that landed black sea bass in with complete recreational data. recreational harvest limit of 2.75 million 2001, the average decrease in gross Landing statistics from the last several lb (1,247 mt) in 2003 would be the same revenue associated with the black sea years show that recreational summer recreational harvest level that was VerDate 0ct<31>2002 16:39 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 70913 implemented in 2002. It is a decrease of final rule (66 FR 12910, March 1, 2001) large trawlers in 1997 was $2,608. The 1.51 million lb (685 mt), or 35 percent, implementing the 2001 specifications. average ex-vessel value (1996–1999) of from 2001 estimated recreational Those impacts are not repeated here. Loligo in directed trips in the Southern landings. The Alternative 3 scup The impacts of the GRAs are expected GRA is $24,013 and in the Northern recreational harvest limit of 5.22 million to remain unchanged in 2003. However, GRA was $4,456. These values are based lb (2,368 mt) in 2003 is 2.47 million lb the Council’s recommendation to allow on the average landings of Loligo from (1,120 mt) higher than the 2002 vessels carrying observers (consistent 1996–1999 in the GRAs, and the average recreational harvest limit, and 0.96 with ACCSP protocol) and using small- ex-vessel value (1996–1999) of Loligo, million lb (435 mt) above 2001 mesh to fish for non-exempt species in adjusted to 2001 dollars. Therefore, the recreational landings. With Alternative the GRAs if they utilize a 5.5–inch requirement to carry at-sea observers 2, and possibly Alternative 1, more (13.97–cm) square mesh extension would increase vessel operating costs. restrictive management measures might between the body and codend of the However, larger vessels fishing in the be required to prevent anglers from trawl net will also have economic southern area would be most likely to exceeding the 2003 recreational harvest impacts. Similarly, the NMFS proposal recoup any increased operating costs. limit, depending largely upon the to require 100–percent observer The observer requirement is anticipated effectiveness of the 2002 recreational coverage for vessels participating in the to impose a larger negative impact on management measures. The effect of Scup GRA Access Program will have the profits of vessels fishing in the greater restrictions on scup party/ economic impacts. northern area. Individual vessels would charter boats is unknown at this time. The Scup GRA Access Program would need to assess changes in costs and The Council intends to recommend not be mandatory. If a vessel owner revenues upon their operations before specific measures to attain the 2003 chooses to participate in the program, it participating in the non-mandatory scup recreational harvest limit in is likely that the additional costs of Scup GRA Access Program. December 2002, and will provide carrying an observer and using the An analysis of Vessel Trip Report additional analysis of the measures modified gear would be offset by (VTR) data (1996–1999) indicates that, upon submission of its increased landings of non-exempt on average, 72 vessels had directed recommendations early in 2003. species (Loligo squid, silver hake Loligo trips (>50% of the total landings Black sea bass recreational landings (whiting), and black sea bass). As such, were Loligo) in the GRAs, for a total of increased slightly from 1991 to 1995. an increase in Loligo landings relative to 209 trips. Assuming that all of these Landings decreased considerably from 2002 would have positive economic vessels choose to fish the same number 1996 to 1999, and then substantially impacts on the Loligo fishery, relative to of trips in the GRAs, a 5–percent increased in 2000. In 2001, recreational the status quo. However, it is not observer requirement (Council landings were 3.42 million lb (1,551 possible to assess the exact monetary recommendation) would mean that mt). For the recreational fishery, the value associated with the additional approximately 11 trips would have to adjusted 2003 harvest limit under harvest because quantitative data on carry observers in the GRAs. A 100– Alternative 1 is 3.43 million lb (1,558 these nets are limited. percent observer requirement (NMFS mt). This is nearly identical to the 2001 The actual net modifications are proposal) would mean that recreational landings estimate and the inexpensive and can be incorporated approximately 209 trips would be 2002 recreational harvest limit. into existing nets with minimal labor. required to carry observers in the GRAs. Therefore, it is not expected to result in For vessels operating in the inshore The actual total number of trips negative economic impacts on the fishery, compliance costs are estimated required to carry an observer would recreational fishery. Under Alternative to be approximately $775 per vessel, vary, depending upon the individual 2, the 2003 recreational harvest limit and for vessels operating in the offshore decisions of vessel owners regarding the would be 2.32 million lb (1,052 mt). fishery, costs are estimated at potentially increased profitability of This level would represent a 32 percent approximately $1,354 per vessel. fishing in the GRAs versus additional decrease from 2001 recreational The cost of one at-sea observer day is observer costs. landings and from the 2002 recreational approximately $1,150, which would be In 2002, the black sea bass possession harvest limit. As such, this alternative paid by the vessel owner intending to limits were 7,000 lb (3.2 mt) for Quarter could cause some negative economic fish in the GRAs. Fishing trips to the 1, and 2,000 lb (907 kg) for Quarters 2 impacts, depending upon the Southern GRA are expected to last through 4. For 2003, the Commission effectiveness of the 2002 recreational approximately 4 days, and trips to the adopted state-specific allocations for black sea bass measures. The 2003 Northern GRA are expected to last 2003. If Amendment 13 to the FMP is recreational harvest limit under approximately 3 days. Therefore, the approved by January 1, 2003, a Federal Alternative 3 would be 3.64 million lb total observer costs are estimated to be coastwide quota will go into effect to (1,651 mt). This is 6 percent higher than $4,600 and $3,450 for trips in the facilitate the state quotas and there the 2001 recreational landings estimate Southern and Northern GRAs, would be no Federal possession limits. and the 2002 recreational harvest limit. respectively. The observer costs would Until Amendment 13 is implemented, a Alternative 3 would likely result in be in addition to operating costs. A quarterly system will remain in effect positive economic impacts on the survey of small Northeast fishing vessels for Federal permit holders. Because recreational fishery. The Council (<65 ft (19.8 m) in length) whose state-by-state measures were approved intends to recommend specific primary gear was otter trawl and who by the Board, and there is the possibility measures to attain the 2003 black sea reported landings in New England that Federal implementation will not bass recreational harvest limit in indicated that average total operating occur by January 1, 2003, the Council December 2002, and will provide cost per trip for small trawlers in 1996 adopted liberal possession limits of additional analysis of the measures was $267. A survey of large Northeast 5,000 lb (2.3 mt) for Quarters 2–4, so as upon submission of its fishing vessels (>65 ft (19.8 m) in not to constrain Federal permit holders recommendations early in 2003. length) whose primary gear was otter from landing in states with different The effects of the existing GRAs are trawl and who reported landings in New landings limits. The possession limits in fully described in the proposed rule (65 England in 1997 indicated that the Quarters 2–4 are not expected to result FR 71046, November 28, 2000) and the average total operating cost per trip for in an overharvest of the black sea bass VerDate 0ct<31>2002 16:39 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 E:\FR\FM\27NOP1.SGM 27NOP1 70914 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules commercial quota, since states’ would change as the result of the commercial quotas and recreational management measures will control research set-aside. Overall, long-term harvest limits specified in Alternative 3 landings. Because of the states’ ability to benefits are expected as a result of the would provide for even larger increases tailor management measures to the research set-aside due to improved in landings and revenues, they would needs of their fisheries, the more liberal summer flounder data. not achieve the fishing mortality and possession limits in Quarters 2–4 are The impacts of the scup research set- exploitation targets specified in the expected to result in positive social and aside in the Preferred Alternative are FMP. economic impacts relative to the status expected to be as follows. The set-aside The proposed possession limits for quo. could be worth as much as $55,986 scup and black sea bass were chosen The current regulations for scup dockside, based on a 2001 ex-vessel because they are enforceable and are specify a 10,000–lb (4,536–kg) price of $0.84 per pound. Assuming an intended to provide for economically possession limit for Winter I and a equal reduction for all active viable fishing trips that will be equitably 2,000–lb (907–kg) possession limit for commercial vessels (i.e., 483 vessels that distributed over the entire quota period. Winter II. For 2003, the alternative landed scup in 2001), this could mean The economic effects of the existing adopted by the Council and Board a reduction of about $116 per vessel. GRAs will not change as a result of this includes a limit of 15,000 lb/week (6.8 Changes in the scup recreational harvest proposed rule. The alternative to allow mt/week) for Winter I and a possession limit would be insignificant. The small-mesh vessels to voluntarily fish limit of 1,500 lb (680 kg) for Winter II. 66,650–lb (30,232–kg) research set-aside for non-exempt species in the GRAs if The reduced possession limits are would reduce the scup recreational they deploy modified trawl gear and expected to constrain commercial harvest limit from 4.03 million lb (1,828 carry a NMFS-certified observer is being landings to the commercial TAL and to mt) to 4.01 million lb (1,819 mt). It is proposed to give vessels an opportunity distribute landings equitably throughout unlikely that scup recreational to fish with small-mesh trawl gear in the the periods to avoid derby-style fishing possession, size, or seasonal limits GRAs while providing much-needed effort and associated market gluts. The would change as the result of the data on the selectivity of the modified Council and Board are recommending research set-aside. Overall, long-term trawl gear. Although the Scup GRA weekly possession limits for Winter I to benefits are expected as a result of the Access Program does impose additional allow fishermen to determine the best research set-aside due to improved scup voluntary compliance and operating time for them to fish and to help avoid data. costs, this alternative is expected to market gluts and unsafe fishing The impacts of the black sea bass minimize both the reporting burden on practices. These possession limits were research set-aside are expected to be as small entities and the administrative chosen as an appropriate balance follows. The set-aside could be worth as support required of NMFS to oversee between the economic concerns of the much as $104,898 dockside, based on a the program. The Scup GRA Access industry (e.g., landing enough scup to 2001 ex-vessel price of $1.55 per pound. Program will keep intact the scup make the trip economically viable) and Assuming an equal reduction for all conservation benefits associated with the need to ensure the equitable active commercial vessels (i.e., 740 the GRAs, but provide important distribution of the quota over the vessels that caught black sea bass in selectivity information that can be period. As such, the possession limits 2001), this could mean a reduction of evaluated in future management would be expected to result in positive about $142 per vessel. Changes in the decisions regarding the GRAs. social and economic impacts. However, black sea bass recreational harvest limit Finally, the revenue decreases due to serious enforcement concerns, would be minimal. The research set- associated with the research set-asides NMFS is proposing to disapprove the aside would reduce the black sea bass are expected to be minimal, and are recommendation for weekly possession recreational harvest limit from 3.46 expected to yield important long-term limits and to retain the status-quo million lb (1.57 million kg) to 3.43 benefits associated with improved data. 10,000–lb (4,536 kg) possession limit for million lb (1.55 million kg). It is It should also be noted that fish Winter I. This possession limit was unlikely that the black sea bass harvested under the research set-asides successful at keeping the fishery open possession, size, or seasonal limits would be sold. As such, total gross for the duration of the 2002 Winter I would change as the result of this revenue to the industry would not quota period, while nearly achieving the research set-aside. Overall, long-term decrease if the research set-asides are entire quota. benefits are expected as a result of the utilized. The impacts of the summer flounder research set-aside due to improved This proposed rule contains a research set-aside in the Preferred black sea bass data. collection-of-information requirement Alternative are expected to be as If the total amount of quota set-aside subject to review and approval by OMB follows. The set-aside could be worth as is not awarded for any of the three under the Paperwork Reduction Act much as $147,684 dockside, based on a fisheries, the unused set-aside amount (PRA). This requirement has been 2001 ex-vessel price of $1.62 per pound. will be restored to the appropriate submitted to OMB for approval. Public Assuming an equal reduction among all fishery’s TAL. reporting burden for this collection of active vessels (i.e., 795 vessels that In summary, the 2003 commercial information is estimated to average landed summer flounder in 2001), this quotas and recreational harvest limits approximately 2 minutes per response, could mean a reduction of about $186 contained in the Preferred Alternative including time for reviewing per individual vessel. Changes in the would result in small decreases in instructions, searching existing data summer flounder recreational harvest summer flounder and black sea bass sources, gathering and maintaining the limit as a result of the 91,163–lb landings and substantially higher scup data needed, and completing and (43,619–kg) research set-aside are not landings, relative to 2002. The proposed reviewing the collection of information. expected to be significant. The research specifications contained in the Preferred Public comment is sought regarding set-aside would reduce the recreational Alternative were chosen because they whether this proposed collection of harvest limit from 9.32 million lb (4,227 allow for the maximum level of information is necessary for the proper mt) to 9.28 million lb (4,209 mt). It is landings, yet still achieve the fishing performance of the functions of the unlikely that the recreational mortality and exploitation targets agency, including whether the possession, size, or seasonal limits specified in the FMP. While the information shall have practical utility; VerDate 0ct<31>2002 16:39 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 E:\FR\FM\27NOP1.SGM 27NOP1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 70915 the accuracy of the burden estimate; 3. In § 648.122, paragraphs (a)(1) and size of 4.5 inches (11.43 cm) diamond ways to enhance the quality, utility, and (b)(1) are revised, and paragraph (d)(1) mesh, applied throughout the codend clarity of the information to be is added to read as follows: for at least 75 continuous meshes collected; and ways to minimize the forward of the terminus of the net. For § 648.122 Season and area restrictions. burden of the collection of information, codends with fewer than 75 meshes, the including through the use of automated (a) * * * minimum-mesh-size codend must be a collection techniques or other forms of (1) Restrictions. From January 1 minimum of one-third of the net, information technology. Send comments through March 15, all trawl vessels in measured from the terminus of the on these or any other aspects of the the Southern Gear Restricted Area that codend to the headrope, excluding any collection of information to Patricia A. fish for or possess non-exempt species turtle excluder device extension, unless Kurkul (see ADDRESSES), and to OMB as specified in paragraph (a)(2) of this otherwise specified in this section. The at the Office of Information and section, except for vessels participating Northern Gear Restricted Area I is an in the Gear Restricted Area Access Regulatory Affairs, Office of area bounded by straight lines Program that are fishing with modified Management and Budget, Washington, connecting the following points in the trawl gear and carrying a NMFS- DC 20503 (Attention: NOAA Desk order stated (copies of a chart depicting certified observer as specified in Officer). the area are available from the Regional paragraph (d) of this section, must fish Notwithstanding any other provision Administrator upon request): of the law, no person is required to with nets that have a minimum mesh size of 4.5 inches (11.43 cm) diamond respond to, nor shall any person be NORTHERN GEAR RESTRICTED mesh, applied throughout the codend subject to penalty for failure to comply for at least 75 continuous meshes AREA 1 with, a collection of information subject forward of the terminus of the net. For to the requirements of the PRA, unless Point N. Lat. W. Long. codends with fewer than 75 meshes, the that collection of information displays a minimum-mesh-size codend must be a currently valid OMB Control Number. NGA1 41°00′ 71°00′ minimum of one-third of the net, NGA2 41°00′ 71°30′ List of Subjects in 50 CFR Part 648 measured from the terminus of the NGA3 40°00′ 72°40′ ° ′ ° ′ Fisheries, Fishing, Reporting and codend to the headrope, excluding any NGA4 40 00 72 05 NGA1 41°00′ 71°00′ recordkeeping requirements. turtle excluder device extension, unless otherwise specified in this section. The Dated: November 22, 2002. Southern Gear Restricted Area is an area * * * * * Rebecca Lent, bounded by straight lines connecting (d) Gear Restricted Area Access Deputy Assistant Administrator for the following points in the order stated Program–Vessels that are subject to the Regulatory Programs, National Marine (copies of a chart depicting the area are provisions of the Southern and Northern Fisheries Service. available from the Regional Gear Restricted Areas, as specified in For the reasons set out in the Administrator upon request): paragraphs (a) and (b) of this section, preamble, 50 CFR part 648 is proposed respectively, may fish for, or possess, to be amended as follows: SOUTHERN GEAR RESTRICTED non-exempt species using trawl nets AREA having a minimum mesh size less than PART 648—FISHERIES OF THE that specified in paragraphs (a) and (b) NORTHEASTERN UNITED STATES Point N. Lat. W. Long. of this section, provided that: (1) The vessel possesses on board all 1. The authority citation for part 648 SGA1 39°20′ 72°50′ continues to read as follows: SGA2 39°20′ 72°50′ required Federal fishery permits and a ° ′ ° ′ Scup GRA Access Program Exemption Authority: 16 U.S.C. 1801 et seq. SGA3 38 00 73 55 SGA4 37°00′ 74°40′ Authorization issued by the Regional 2. In § 648.14, paragraph (a)(122) is SGA5 36°30′ 74°40′ Administrator, Northeast Region, and is revised to read as follows: SGA6 36°30′ 75°00′ in compliance with all conditions and SGA7 37°00′ 75°00′ restrictions specified in the Scup GRA § 648.14 Prohibitions. ° ′ ° ′ SGA8 38 00 74 20 Access Program Exemption (a) * * * SGA1 39°20′ 72°50′ (122) Fish for, catch, possess, retain or Authorization; land Loligo squid, silver hake, or black (b) * * * (2) The vessel must carry a NMFS- sea bass in or from the areas and during (1) Restrictions. From November 1 approved observer on board if any the time periods described in through December 31, all trawl vessels portion of the trip will be, or is, in a § 648.122(a) or (b) while in possession in the Northern Gear Restricted Area I GRA; and, of any trawl nets or netting that do not that fish for or possess non-exempt (3) While fishing in a GRA, the vessel meet the minimum mesh restrictions or species as specified in paragraph (b)(2) must fish only with a specially modified that are obstructed or constricted as of this section, except for vessels trawl net that has an escapement specified in § 648.122 and § 648.123(a), participating in the Gear Restricted Area extension consisting of 45 meshes of unless the nets or netting are stowed in Access Program that are fishing with 5.5–inch (13.97–cm) square mesh that is accordance with § 648.23(b), or unless modified trawl gear and carrying a positioned behind the body of the net the vessel is in compliance with the NMFS-certified observer as specified in and in front of the codend. Gear Restricted Area Access Program paragraph (d) of this section, must fish [FR Doc. 02–30229 Filed 11–26–02; 8:45 am] requirements specified at § 648.122(d). with nets that have a minimum mesh BILLING CODE 3510–22–S VerDate 0ct<31>2002 16:39 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 E:\FR\FM\27NOP1.SGM 27NOP1 70916 Notices Federal Register Vol. 67, No. 229 Wednesday, November 27, 2002 This section of the FEDERAL REGISTER methodology and assumptions used; (c) Act of 1964, DOJ regulations, and USDA contains documents other than rules or ways to enhance the quality, utility, and regulations on nondiscrimination in proposed rules that are applicable to the clarity of the information to be Federally assisted programs, the USDA’s public. Notices of hearings and investigations, collected; and (d) ways to minimize the Food and Nutrition Service (FNS) committee meetings, agency decisions and burden of the collection of information requires State agencies to submit data rulings, delegations of authority, filing of petitions and applications and agency on those who are to respond, including on the racial/ethnic categories of statements of organization and functions are through the use of appropriate persons receiving benefits from FNS examples of documents appearing in this automated, electronic, mechanical, or food assistance programs. section. other technological collection In all three programs, State and local techniques or other forms of information agencies collect racial/ethnic technology. information on the benefits application DEPARTMENT OF AGRICULTURE All comments will be summarized form that applicants may complete and and included in the request for Office of file manually or electronically. The Food and Nutrition Service Management and Budget approval of the application form must clearly indicate information collection. All comments three points: (1) The information is Agency Information Collection will become a matter of public record. voluntary, (2) the race and ethnic Activities: Proposed Collection, information will not affect an Comment Request—Commodity FOR FURTHER INFORMATION CONTACT: applicant’s eligibility or level of Supplemental Food Program, the Food Barbara Hallman, telephone number benefits, and (3) the reason for the Distribution Program on Indian (703) 305–2383. collection of the information is to assure Reservations, and the Food Stamp SUPPLEMENTARY INFORMATION: that program benefits are distributed Program: Title VI Civil Rights Title: Civil Rights Title VI Collection without regard to race, color or national Collection Reports Reports—FNS–191 and FNS–101. OMB Number: 0584–0025. origin. All three programs allow the AGENCY: Food and Nutrition Service, Expiration Date: December 2002. individual to self-identify his or her USDA. Type of Request: Revision of a racial/ethnic status on the application. ACTION: Notice. currently approved collection. Visual observation by a program Abstract: Title VI of the Civil Rights representative is used to collect the data SUMMARY: In accordance with the Act of 1964, 42 U.S.C. 2000d to 2000d– when the individual does not self- Paperwork Reduction Act of 1995, the 7, prohibits discrimination on the basis identify. In either case the information Food and Nutrition Service (FNS) is of race, color, and national origin in is recorded on the application form and publishing for public comment a programs receiving Federal financial entered into the agency’s information summary of a proposed information assistance. Department of Justice (DOJ) system. The Federal reporting forms do collection. The proposed collection is a regulations, 28 CFR 42.406, require all not identify individual participants. revision of a collection currently Federal agencies to provide for the Local agencies use the two forms approved under OMB No. 0584–0025, collection of racial/ethnic data and referenced above (i.e., the FNS–191 and Civil Rights Title VI Collection information from applicants for and FNS–101) to report data on the Reports—Forms FNS–191 and FNS–101, recipients of Federal assistance Commodity Supplemental Food for the Commodity Supplemental Food sufficient to permit effective Program (CSFP), the Food Distribution Program, the Food Distribution Program enforcement of Title VI. Program on Indian Reservations on Indian Reservations, and the Food For purposes of the Information (FDPIR), and the Food Stamp Program Stamp Program. Collection Notice only, the Food and (FSP) to FNS as explained below. FNS’ DATES: Comments on this notice must be Nutrition Service (FNS) employs data collection requirement for received by January 27, 2003. program terminology in place of the operators is found in the regulations for ADDRESSES: Send comments and standard Title VI terminology adopted the CSFP at 7 CFR part 247.13(d), and requests for copies of this information by the U.S. Department of Agriculture for the FSP at 7 CFR part 272.6(g); the collection to Barbara Hallman, Chief, (USDA) and codified at 7 CFR 15.2. requirement for the FDPIR is found in State Administration Branch, Food Thus, ‘‘State agencies,’’ ‘‘local FNS Handbook 501. Stamp Program, Food and Nutrition agencies,’’ and/or ‘‘operators’’ are the All State or local agencies must Service, USDA, 3101 Park Center Drive, program entities responsible for submit the appropriate form in order to Alexandria, VA 22302. Copies of the fulfilling the data collection receive benefits and comply with estimate of the information collection requirements associated with ‘‘primary applicable legislation. If a State or local can be obtained by contacting Ms. recipients’’ and/or ‘‘recipients’’ as agency does not comply voluntarily, the Hallman. defined by Title VI. Moreover, the State or local agency is subject to fund Comments are invited on: (a) Whether program terms ‘‘respondents,’’ termination, suspension, or denial; or the proposed collection of information ‘‘applicants,’’ and/or ‘‘participants’’ judicial action. is necessary for the proper performance refer to the ‘‘potential beneficiaries,’’ CSFP local agencies complete the of the functions of the Agency, ‘‘applicant beneficiaries,’’ and/or FNS–191 for the CSFP. FNS requires including whether the information will ‘‘actual beneficiaries’’ of Federal local agencies to provide annually the have practical utility; (b) the accuracy of financial assistance as defined by Title actual number and racial/ethnic the Agency’s estimate of the burden of VI. designations of women, infants, the proposed collection of information In order to conform with the statutory children and elderly who receive CSFP including the validity of the mandates of Title VI of the Civil Rights benefits during the month of April. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70917 FSP and FDPIR State or local agencies interest. The four double race categories household, normally the person who complete the FNS–101. FNS requires are American Indian or Alaska Native completes the application or is State or local agencies to report and White; Asian and White; Black or interviewed. This is done because the annually the actual number and racial/ African American and White; and reporting of racial information by an ethnic designation of households who American Indian or Alaska Native and applicant is voluntary and not all receive FDPIR and/or FSP benefits Black or African American. household members are required to be during the month of July. Accordingly, FNS has revised the forms present for the eligibility interview. FNS is proposing substantial changes for this notice based on the additional FDPIR and FSP State agencies may in the collection and reporting of racial/ guidance. continue to collect the data for one ethnic data. These changes are State Collection of Data person per household but must use the discussed below. revised racial and ethnic categories and For all three programs, the new five provide for multiple race reporting. The New Categories and Reporting racial categories for State agency data Forms collection are: American Indian or Reporting of Data Background Alaska Native, Asian, Black or African FNS is proposing drafts of the revised American, Native Hawaiian or Other Currently, State agencies collect data forms for comment at this time in order Pacific Islander, and White. The two to begin to comply with the revised on five racial and ethnic categories: revised ethnic categories are: ‘‘Hispanic American Indian or Alaska Native, racial and ethnic categories and to or Latino’’ and ‘‘Not Hispanic or inform State agencies of the reporting Asian or Pacific Islander, Black (not of Latino.’’ These categories are to be Hispanic origin), Hispanic, and White changes to come. The proposed forms included on the application or data FNS–101 and FNS–191 are included in (not of Hispanic origin). The current input screen. racial and ethnic categories, which have this notice for review and comment. State agencies must use separate For both the FNS–191 and the FNS– been in place for over 20 years, conform questions on the application form or 101 forms, FNS is proposing to have to standards set by the Office of data input screen for collecting data on State agencies report the total number of Management and Budget (OMB) in race and ethnicity, collecting ethnicity people (i.e., participants for the FNS– Statistical Policy Directive No. 15, Race data first, then race. Applicants may 191 and household contacts for the and Ethnic Standards for Federal choose only one response to the FNS–101 as explained below) in the Statistics and Administrative Reporting. ethnicity question, either ‘‘Hispanic or revised racial and ethnic categories for On October 30, 1997, OMB issued a Latino’’ or ‘‘Not Hispanic or Latino.’’ each single race, and for the following revision of Statistical Policy Directive For all three programs, State and local combinations: No. 15 in a notice in the Federal agencies must offer applicants the (1) American Indian or Alaska Native Register (62 FR 58781 (Oct. 30, 1997)). option of selecting one or more racial and White. The 1997 standards revise the categories designations from the above categories, (2) Asian and White. and manner of reporting. Under the distinct from a selection for the ethnic (3) Black or African American and revised standards, the Asian or Pacific category. State agencies may not offer White. Islander category is now separated into respondents (applicants) a ‘‘multiracial’’ (4) American Indian or Alaska Native two categories—‘‘Asian’’ and ‘‘Native category. Instructions on race reporting and Black or African American. Hawaiian or Other Pacific Islander.’’ In on the application form should ask the (5) Any other racial combinations addition, Hispanic now becomes an respondent to ‘‘Mark one or more with a population in the State that ethnic category separate from the racial ***’’ or ‘‘Select one or more. * * *’’ exceeds 1 percent of the total categories. The ethnic categories are If racial and ethnic information are not population for the State. ‘‘Hispanic or Latino’’ and ‘‘Not Hispanic provided voluntarily by the applicant, (6) The balance of respondents or Latino.’’ Applicants will now be the State agency is to obtain the reporting more than one race. allowed to choose more than one race. information based on visual State agencies would need to review All Federal and State agencies are to observation. When visual observation is Census 2000 data to determine which comply with the new standards. used, only a single race need be other racial combinations have a In order to comply with the revised collected, along with the ethnicity. The population that exceeds the one percent OMB policy directive, on November 30, new multiple race data collection and population threshold in their State. 1999, FNS issued a notice in the Federal reporting are intended to capture Each such combination would be Register proposing new reporting forms information on the number of people reported as a separate line item. Census for FNS–191 and FNS–101. The reporting that they are of more than one 2000 summary data shows 2.4 percent proposed forms included the single race race. State agencies will need to modify of the Nation’s population chose more blocks and a category for the count of their application forms, computer input than one race and in four States more the number of people who chose more screens and information systems to than four percent of the State’s than one race. Since that notice was capture and retrieve data in the revised population chose more than one race. published, OMB, on March 9, 2000, categories. Census 2000 data on the poverty issued OMB Bulletin No. 00–02, which For the CSFP, State agencies currently population by combination is expected provided new guidance to Federal collect this data by participant. CSFP to become available in 2003. In agencies on the collection of aggregate State agencies will continue to collect addition, State agencies must report in data from non-Federal entities and the the data by participant, but must use the a separate break out column the number compiling of the data for Federal revised racial and ethnic categories and of persons in each single or multiple purposes. That guidance directed provide for multiple race reporting. race category line item who are Federal agencies to collect data for the For FDPIR and FSP, State agencies Hispanic or Latino. Detailed reporting four double race combinations most currently collect the data by instructions will be issued by FNS when commonly reported in studies and for ‘‘household’’ with each household unit the revised forms are approved by OMB any other racial combinations that being counted under only one race. In and finalized. State agencies should exceed one percent of the State actuality, most State agencies collect note that the additional one percent population or other population of racial/ethnic data for one person in the combination categories they must report VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70918 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices are subject to change with the next U.S. 101 along with all other FSP State FNS proposes that CSFP, FDPIR, and Census. agencies. FSP State and local agencies begin The FNS–191 and FNS–101 are being The more detailed data for all three collecting the racial/ethnic data for the revised to include the revised racial/ programs will allow FNS to more revised reporting with new applications ethnic categories described above. accurately capture the increasing filed beginning no later than October 1, Additionally, other changes are being diversity of participants and household 2003 and in any event that caseload made to the forms. For the FNS–191, contacts in its programs. The one conversion be completed prior to the FY respondents will simply report the total percent categories are intended to 2004 report month. The revised number of participants in each category, minimize the reporting burden on State reporting to FNS would be effective for without a breakout by women, infants, agencies while providing FNS with line the report month of April 2004 for the children and elderly participants. For item data on program participation by FNS–191 and the report month of July the FNS–101, respondents will continue additional multiple race combinations 2004 for the FNS–101. to report the data by household, but we which exceed the threshold percentage FNS is requesting comments on the have changed the designation on the in that State. Finally, the data will be proposed reporting forms, FNS’ estimate form to ‘‘household contact’’, which is used for civil rights monitoring and of the burden hours, and the proposed a more appropriate term. enforcement. implementation date. We invite State In addition, there are certain other We estimate a State agency will need agencies to include in their comments changes for the FNS–101 that apply to report on average 24 data elements on any estimates of significant cost only to the FSP. Currently, FSP State the proposed form based on the increases that the proposed reporting and local agencies report the racial available Census data. State agencies in changes may entail. We ask that State ethnic data by project area for a very small number of States may have agencies be as specific as possible as to approximately 2,800 projects. The to report an additional category or two which data elements might increase increase in data elements (from the for additional combinations that exceed costs most significantly. We also ask current 5 to the proposed 26) will have one percent of the State’s population. commenters to identify the program a significant impact on a State’s However, State agencies will be involved in their comments. After reporting burden if we were to retain the responsible for maintaining the considering the comments, FNS will project area reporting. To ease the aggregate data by each single race and finalize the revised forms and include impact on State reporting, we propose to by every possible racial combination them in the burden package for OMB have State agencies report this data in category for State agency monitoring approval. FNS will formally announce a single Statewide report to FNS for the and for Federal review purposes. Thus, the effective date(s) for each of the FSP, which would eliminate project the State agency’s information system affected programs through area reporting to FNS. Most State will need to compile and maintain the implementing memoranda as agencies have Statewide information data for a total of 62 racial and ethnic appropriate and will provide copies of systems which can provide State totals categories, 10 categories for those who the revised forms at that time. The two and we encourage State agencies to report exactly one race (5 categories for revised forms follow this notice. automate all their data compilations. all household contacts by race and 5 Although we are proposing Statewide categories for Hispanic contacts only by Burden Estimate reporting on the FNS–101 for the FSP, race) and 52 categories for those who Respondents: Local agencies that the State agency will need to maintain report more than one race (26 categories administer the CSFP, FDPIR, and FSP. the data by project area for FNS review. for all household contacts and the Number of Respondents: 265 (101 for The data must be kept in an easily remaining 26 for Hispanic contacts CSFP, 111 for FDPIR, and 53 for FSP). retrievable form and be made available only). Estimated Number of Responses per to FNS upon request. FNS also intends Implementation Respondent: to provide for electronic reporting of the Form FNS–191: 101 local CSFP new Statewide form through our State FNS recognizes that State and local agencies once a year. Cooperative Data Exchange (SCDEX) agencies will need time to modify their Form FNS–101: 111 local FDPIR process for the FSP in the near future. application forms, data input screens, agencies and 53 State FSP agencies once Currently, Hawaii, Guam, and the and information systems in order to a year. Virgin Islands are exempt from begin capturing and tabulating the Estimate of Burden: reporting racial/ethnic data on the revised data for all three programs. It is Form FNS–191: The local CSFP current FNS–101 for the FSP. This crucial for FNS’ information system that agencies submit Form FNS–191 at an exemption, which FNS granted in 1972 all State agencies for a given program estimate of 1.75 hours per respondent, and reaffirmed in 1983, was due to the implement the revised reporting format or 176.75 total hours. There is an significant multiracial composition in at the same time. Lastly, published additional recordkeeping burden of .25 Hawaii that did not fall neatly into the elsewhere in this issue of the Federal hours per respondent for maintaining single race blocks on the form and the Register, a proposed rule addressing the the responses, or 25.25 hours. Total essentially homogeneous racial/ethnic implementation of collection and burden is 202 hours. population in Guam and the Virgin reporting of racial ethnic data for the Form FNS–101: The local FDPIR and Islands. Our review of the latest Food Stamp Program is available for State FSP agencies submit Form FNS– available Census Bureau racial statistics public comment. As explained in the 101 at an estimate of 1.75 hours per for all three of these areas showed a preamble to the proposed rule, until respondent, or 287 total hours. There is diverse population. In view of this comment is received on this notice and an additional burden of .25 hours per diversity, and since the revised form the proposed rule, and approval for the respondent for maintaining the will allow multiple race reporting, we revised forms are approved by OMB, responses, or 41 hours. The lower propose to terminate the current State agencies would continue with the burden per respondent reflects the exemption for the above entities and current data collection requirements for increased use of automation to complete will require that the above-mentioned the fiscal year 2003 reporting period. the report. Total burden is 328 hours. State agencies to begin to report racial FNS anticipates the publication of the Estimated Total Annual Burden on statistics to FNS on the revised FNS– final rule early in 2003. Respondents: The revised annual VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70919 reporting and recordkeeping burden for to the decrease in the number of Dated: November 21, 2002. OMB No. 0584–0025 is estimated to be agencies that will complete a report. Roberto Salazar, 530 hours, a reduction of 6,065 hours. Administrator. The burden reduction is due primarily BILLING CODE 3410–30–P VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00004 Fmt 4703 Sfmt 4725 E:\FR\FM\27NON1.SGM 27NON1 ER27NO02.006 70920 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00005 Fmt 4703 Sfmt 4725 E:\FR\FM\27NON1.SGM 27NON1 ER27NO02.007 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70921 VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00006 Fmt 4703 Sfmt 4725 E:\FR\FM\27NON1.SGM 27NON1 ER27NO02.008 70922 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices [FR Doc. 02–30113 Filed 11–26–02; 8:45 am] BILLING CODE 3410–30–C VerDate 0ct<31>2002 18:41 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 ER27NO02.009 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70923 DEPARTMENT OF AGRICULTURE solitude or primitive and unconfined those who visited nonwilderness areas, types of recreational experiences. using addresses provided by them as Forest Service To meet the requirements of the they entered the nonwilderness sites. In Wilderness Act of 1964 and to help the some cases, the agency forms will be Information Collection; Baseline and Forest Service enhance visitors’ made available on a self-service basis to Trend Information on Wilderness Use recreational experiences, the agency visitors in trailhead displays. and Users monitors trends of visitor recreational Respondents will be asked questions AGENCY: Forest Service, USDA. activities. Forest Service personnel also that include how many times they visit, want to ensure that visitors’ recreational ACTION: Notice; request for comment. when they plan their next visit, or if activities do not harm the natural they plan to visit at all. Respondents SUMMARY: In accordance with the resources of the National Wilderness will be asked, when visiting, if they Paperwork Reduction Act of 1995, the Preservation System. The agency is come in groups and, if so, the size of Forest Service is seeking comments expanding the scope of the survey to those groups. Respondents will be asked from all interested individuals and include wilderness areas about which how long they stay when visiting. Do organizations on the extension of an the agency has little information in they use equipment, such as stoves, or existing information collection that has, regard to visitor recreational trends. use wood for fires while visiting? Do The Forest Service will use since 1990, collected data about they have preferences for social information from this collection to: (1) wilderness recreation users in the conditions? For example, do they like or Establish visitor recreational use United States. The information is will they accept crowded conditions, baselines; (2) monitor visitor necessary to help the Forest Service and such as crowded camping areas and recreational use trends; (3) gain an other Federal wilderness management areas designed to limit the negative understanding of how the agency’s agencies meet the needs and effects of visitor use on natural management of the National Wilderness expectations of visitors, who look to the resources, such as soil compaction, Preservation System influences a National Wilderness Preservation damage to tree roots, and negative visitor’s wilderness experience; and (4) System for recreational experiences that impacts to water quality? Do help understand how to educate are dependent upon natural wilderness respondents support various wilderness visitors, so that they may enjoy their conditions away from human management strategies (such as limiting wilderness experience without leaving development and devoid of crowds. visitor use of wilderness areas) to lessen permanent reminders of their visits, Respondents will be visitors, or negative effects to the wilderness such as damaged vegetation, litter, and potential visitors, to the National environment? Do they support polluted streams. The information also Wilderness Preservation System. separating uses (such as designating will be used for planning management some campsites for use only by groups DATES: Comments must be received in direction for various wilderness areas with pack animals) to avoid conflict? writing on or before January 27, 2003. managed by the agencies in the ADDRESSES: Written comments Departments of Agriculture and Interior. Estimate of Annual Burden: 15 concerning this notice should be Data from this information collection minutes. addressed to Forest Service, USDA, are not available from other sources and Types of Respondents: Visitors or Attn: Alan Watson, Aldo Leopold will be maintained at the interagency potential visitors to the National Wilderness Research Institute, P.O. Box (Agriculture and Interior) Aldo Leopold Wilderness Preservation System. 8089, Missoula, Montana 59807. Wilderness Research Institute in Estimated Annual Number of Comments may also be sent via e-mail Missoula, Montana. Respondents: 3,000. to [email protected]. Description of Information Collection FOR FURTHER INFORMATION CONTACT: Estimated Annual Number of Alan Watson, Aldo Leopold Wilderness The following describes the Responses per Respondent: 1. Research Institute, (406) 542–4197. information collection to be extended: Estimated Total Annual Burden on Title: Baseline and Trend Information Individuals who use Respondents: 750 hours. on Wilderness Use and Users. telecommunication devices for the deaf OMB Number: 0596–0108. Comment Is Invited (TDD) may call the Federal Information Expiration Date of Approval: January Relay Service (FIRS) at 1–800–877–8339 31, 2003. Comment is invited on: (1) Whether between 8:00 a.m. and 8:00 p.m., Type of request: Extension of a this collection of information is Eastern Standard Time, Monday currently approved information necessary for the stated purposes and through Friday. collection. the proper performance of the functions SUPPLEMENTARY INFORMATION: The Forest Abstract: Respondents will be of the agency, including whether the Service is seeking an extension of an visitors, or potential visitors, to the information will have practical or existing information collection National Wilderness Preservation scientific utility; (2) the accuracy of the authorized under Office of Management System (System). Forest Service agency’s estimate of the burden of the and Budget Control Number 0596–0108. personnel will conduct face-to-face, on- collection of information, including the This information collection approval site interviews with visitors as they validity of the methodology and allows the Forest Service to collect enter the System or will send mailback assumptions used; (3) ways to enhance information from visitors, or potential survey forms to visitors at their homes the quality, utility, and clarity of the visitors, to the lands of the National using addresses that visitors provide information to be collected; and (4) Wilderness Preservation System. when visiting the System. Forest Service ways to minimize the burden of the The Wilderness Act of 1964 directs personnel will contact visitors at collection of information on that the National Wilderness nonwilderness sites to ask if they have respondents, including the use of Preservation System be managed to plans to visit the System. When unable automated, electronic, mechanical, or protect natural wilderness conditions to conduct face-to-face interviews with other technological collection and to provide outstanding potential visitors, the agency will send techniques or other forms of information opportunities for the public to find mailback survey forms to the homes of technology. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70924 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Use of Comments authority to a qualified State agency to economy. The data will provide All comments received in response to perform all or specified functions benchmarks for deriving current this notice, including name and address involved in official inspection at export universe estimates of direct investment when provided, will become a matter of port locations within the state. GIPSA from sample data collected in other BEA public record. Comments received in originally delegated Mississippi, main surveys. In particular, they will serve as response to this notice will be office in Jackson, Mississippi, under the benchmarks for the quarterly direct summarized and included in the request Act on April 18, 1978. The sole grain investment estimates included in the for Office of Management and Budget export port facility in Pascagoula, U.S. international transactions and approval. Mississippi, has been razed. Therefore, national income and product accounts, Mississippi’s delegation is cancelled. If and for annual estimates of the foreign Dated: November 20, 2002. any grain export port facility were to direct investment position in the United Robert Lewis, Jr., open in the future within the State of States and of the operations of the U.S. Deputy Chief, Research and Development. Mississippi, Mississippi would have the affiliates of foreign companies. [FR Doc. 02–30017 Filed 11–26–02; 8:45 am] opportunity to become delegated again. Affected Public: U.S. businesses or BILLING CODE 3410–11–P Authority: Pub. L. 94–582, 90 Stat. 2867, other for-profit institutions. as amended (7 U.S.C. 71 et seq.). Frequency: Quinquennial. Respondent’s Obligation: Mandatory. DEPARTMENT OF AGRICULTURE Dated: November 14, 2002. Legal Authority: Title 22 U.S.C., David R. Shipman, Sections 3101–3108, as amended. Grain Inspection, Packers and Acting Administrator, Grain Inspection, OMB Desk Officer: Paul Bugg, (202) Stockyards Administration Packers and Stockyards Administration. 395–3093. [02–c] [FR Doc. 02–30048 Filed 11–26–02; 8:45 am] You may obtain copies of the above BILLING CODE 3410–EN–P information collection proposal by Cancellation of Mississippi’s calling or writing Diana Hynek, Delegation Departmental Paperwork Clearance DEPARTMENT OF COMMERCE Officer, Office of the Chief Information AGENCY: Grain Inspection, Packers and Officer, (202) 482–0266, Department of Stockyards Administration, USDA. Submission for OMB Review; Commerce, Room 6086, 14th Street and ACTION: Notice. Comment Request Constitution Avenue, NW, Washington, DC 20230, or via internet at SUMMARY: The Department of Commerce (DOC) The United States Grain [email protected]. Standards Act, as amended (Act), has submitted to the Office of Send comments on the proposed provides for state agency delegations at Management and Budget (OMB) for information collection within 30 days of export port locations within a state. The clearance the following proposal for publication of this notice to Paul Bugg, Mississippi Department of Agriculture collection of information under the OMB Desk Officer, Room 10201, New and Commerce (Mississippi), is provisions of the Paperwork Reduction Executive Office Building, Washington, delegated to provide official export Act (44 U.S.C. Chapter 35). DC 20503. inspection and weighing services. Agency: Bureau of Economic Analysis However, there are no longer any bulk (BEA), Commerce. Dated: November 21, 2002. grain export port facilities in the State Title: Benchmark Survey of Foreign Madeleine Clayton, of Mississippi. Accordingly, GIPSA is Direct Investment in the United States— Management Analyst, Office of the Chief announcing that Mississippi’s 2002. Information Officer. delegation is being canceled effective Form Number(s): BE–12(LF) (long [FR Doc. 02–30080 Filed 11–26–02; 8:45 am] December 1, 2002. This does not affect form), BE–12 (SF) (short form), BE–12 BILLING CODE 3510–06–P Mississippi’s current designation to Bank (bank form), and BE–12X (Claim provide official domestic grain for Not Filing a BE–12(LF), BE–12(SF), inspection and weighing services, or BE–12 Bank). DEPARTMENT OF COMMERCE effective January 1, 2001, through Agency Approval Number: 0608– September 30, 2003. 0042. Submission for OMB Review; Comment Request DATES: December 1, 2002. Type of Request: Reinstatement, with change, of a previously approved ADDRESSES: USDA, GIPSA, Janet M. DOC has submitted to the Office of collection for which approval has Hart, Chief, Review Branch, Compliance Management and Budget (OMB) for expired. Division, STOP 3604, room 1647–S, clearance the following proposal for Burden: 199,500 hours. 1400 Independence Ave. SW., collection of information under the Number of Respondents: 17,700. Washington, DC 20250–3604. provisions of the Paperwork Reduction Avg Hours Per Response: 11.3 hours. Act (44 U.S.C. Chapter 35). FOR FURTHER INFORMATION CONTACT: Needs and Uses: The purpose of the Janet M. Hart at 202–720–8525, e-mail benchmark survey is to obtain universe Agency: Bureau of Economic Analysis [email protected]. data on the financial and operating (BEA). SUPPLEMENTARY INFORMATION: This characteristics of, and on positions and Title: Transactions of U.S. Affiliate, action has been reviewed and transactions between, U.S. affiliates and Except a U.S. Banking Affiliate, with determined not to be a rule or regulation their foreign parent groups (which are Foreign Parent (Form BE–605) and as defined in Executive Order 12866 defined to include all foreign parents Transactions of U.S. Banking Affiliate and Departmental Regulation 1512–1; and foreign affiliates of foreign parents). with Foreign Parent (Form BE–605 therefore, the Executive Order and The data are needed to measure the size Bank). Departmental Regulation do not apply and economic significance of foreign Form Number(s): BE–605 and BE–605 to this action. direct investment in the United States, Bank. Section 7(e)(2) of the Act authorizes to measure changes in such investment, Agency Approval Number: 0608– GIPSA’s Administrator to delegate and to assess its impact on the U.S. 0009. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70925 Type of Request: Revision of a DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE currently approved collection. Submission for OMB Review; Submission for OMB Review; Burden: 19,750 hours. Comment Request Comment Request Number of Respondents: 3,950 per quarter; 15,800 annually. The Department of Commerce (DOC) The Department of Commerce (DOC) has submitted to the Office of has submitted to the Office of Avg Hours Per Response: 11⁄4 hours. Management and Budget (OMB) for Management and Budget (OMB) for Needs and Uses: The U.S. clearance the following proposal for clearance the following proposal for Government requires data from the BE– collection of information under collection of information under 605 (quarterly) survey for compiling the provisions of the Paperwork Reduction provisions of the Paperwork Reduction international transactions accounts, Act (44 U.S.C. Chapter 35). Act (44 U.S.C. Chapter 35). input-output accounts, and national Agency: Bureau of Industry and Agency: Bureau of Industry and income and product accounts of the Security (BIS). Security (BIS). United States. The data are also needed Title: Firearms Convention. Title: Statement by Ultimate to measure the amount of foreign direct Agency Form Number: BXA–748P. Consignee and Purchaser. investment in the United States, OMB Approval Number: 0694–0114. Agency Form Number: BXA–711. monitor changes in such investment, Type of Request: Renewal of an OMB Approval Number: 0694–0021. assess its impact on the U.S. and foreign existing collection of information. economies, and, based upon this Type of Request: Extension of a Burden: 374. currently approved collection of assessment, make informed policy Average Time Per Response: 40 decisions regarding foreign direct information. minutes per response (electronic copy), Burden: 959 hours. investment in the United States. 45 minutes (hard copy). Average Time Per Response: 16 Also, the data from the BE–605 survey Number of Respondents: 1,100 minutes per response. complement data from BEA’s other respondents. Number of Respondents: 3,594 ongoing surveys of foreign direct Needs and Uses: This collection is respondents. investment in the United States, namely required by Section 5(h) of the Export the BE–13, Initial Report on a Foreign Administration Act of 1979, as amended Needs and Uses: The Form BIS–711 Person’s Direct or Indirect Acquisition, (EAA), and authorized under Section or letter puts the importer on notice of Establishment, or Purchase of the 15(b) of the EAA. U.S. firms as a matter the special nature of the goods and Operating Assets, of a U.S. Business of practice already obtained the Import receive a commitment against illegal Enterprise, Including Real Estate, and Certificate in order to do business in disposition. In order to effectively control commodities, BIS must have the BE–12 (benchmark) and BE–15 OAS countries. The United States now sufficient information regarding the (annual) surveys, which provide data on requires them to obtain it, provide the end-use and end-user of the U.S. origin the overall operations of U.S. affiliates. information to BIS, and retain the certificate in company records. The commodities to be exported. The Affected Public: U.S. businesses or Import Certificate is essential to the information will assist the licensing other for-profit institutions. prevention of the spread of illicit officer in making the proper decision on Frequency: Quarterly. firearms. The USG can use it to whether to approve or reject the application for the license. Respondent’s Obligation: Mandatory. prosecute illegal transactions, and it is useful in other enforcement activities. Affected Public: Individuals, Legal Authority: Title 22 U.S.C., businesses or other for-profit Sections 3101–3108, as amended. Affected Public: Individuals, businesses or other for-profit institutions. OMB Desk Officer: Paul Bugg, (202) institutions. Respondent’s Obligation: Required to 395–3093. Respondent’s Obligation: Mandatory. obtain or retain a benefit. You may obtain copies of the above OMB Desk Officer: David Rostker. OMB Desk Officer: David Rostker. information collection proposal by Copies of the above information Copies of the above information calling or writing Diana Hynek, collection proposal can be obtained by collection proposal can be obtained by Departmental Paperwork Clearance calling or writing Diana Hynek, DOC calling or writing Diana Hynek, DOC Officer, Office of the Chief Information Paperwork Clearance Officer, Office of Paperwork Clearance Officer, Office of Officer, (202) 482–0266, Department of the Chief Information Officer, (202) the Chief Information Officer, (202) Commerce, Room 6625, 14th Street and 482–0266, Department of Commerce, 482–0266, Department of Commerce, Constitution Avenue, NW., Washington, Room 6625, 14th and Constitution Room 6625, 14th and Constitution DC 20230, or via Internet at Avenue, NW, Washington, DC 20230. Avenue, NW, Washington, DC 20230. [email protected]. Written comments and Written comments and Send comments on the proposed recommendations for the proposed recommendations for the proposed information collection should be sent information collection should be sent information collection within 30 days of within 30 days of publication of this within 30 days of publication of this publication of this notice to Paul Bugg, notice to David Rostker, OMB Desk notice to David Rostker, OMB Desk OMB Desk Officer, Room 10201, New Officer, Room 10202, New Executive Officer, Room 10202, New Executive Executive Office Building, Washington, Office Building, Washington, DC 20230. Office Building, Washington, DC 20230. DC 20503. Dated: November 22, 2002. Dated: November 22, 2002. Dated: November 21, 2002. Madeleine Clayton, Madeleine Clayton, Madeleine Clayton, Management Analyst, Office of the Chief Management Analyst, Office of the Chief Management Analyst. Information Officer. Information Officer. [FR Doc. 02–30081 Filed 11–26–02; 8:45 am] [FR Doc. 02–30082 Filed 11–26–02; 8:45 am] [FR Doc. 02–30083 Filed 11–26–02; 8:45 am] BILLING CODE 3510–06–P BILLING CODE 3510–33–P BILLING CODE 3510–33–P VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70926 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices DEPARTMENT OF COMMERCE conditions. Condition 9 of Senate (2) Require annual declarations by Resolution 75, titled ‘‘Protection of certain facilities engaged in the Bureau of Industry and Security Advanced Biotechnology,’’ provides production of ‘‘Schedule 1’’ chemicals [Docket No. 021104266–2266–01] that the President shall certify to the in excess of 100 grams aggregate per Congress on an annual basis that ‘‘*** calendar year (i.e., declared ‘‘Schedule Impact of Implementation of the the legitimate commercial activities and 1’’ facilities) for purposes not prohibited Chemical Weapons Convention on interests of chemical, biotechnology, by the Convention (15 CFR 712.3(a) and Commercial Activities Involving and pharmaceutical firms in the United (b)); ‘‘Schedule 1’’ Chemicals Through States are not being significantly (3) Require government approval of Calendar Year 2002 harmed by the limitations of the ‘‘declared Schedule 1’’ facilities (15 CFR Convention on access to, and 712.3(e)); AGENCY: Bureau of Industry and production of, those chemicals and (4) Provide that ‘‘declared Schedule Security, Commerce. toxins listed in Schedule 1 * * *’’. The 1’’ facilities are subject to initial and ACTION: Notice of inquiry. Bureau of Industry and Security is routine inspection by the Organization collecting data to assist in determining for the Prohibition of Chemical SUMMARY: The Bureau of Industry and the impact, if any, that the Weapons (15 CFR 712.3(d); Security (BIS) is seeking public implementation of the Convention’s (5) Require 200 days advance comments on the impact that requirements have had on commercial notification of establishment of new implementation of the Chemical ‘‘Schedule 1’’ activities through ‘‘Schedule 1’’ production facilities Weapons Convention has had on calendar year 2002. producing greater than 100 grams commercial activities involving The Convention on the Prohibition of aggregate of ‘‘Schedule 1’’ chemicals per ‘‘Schedule 1’’ chemicals through the Development, Production, calendar year (15 CFR 712.4); calendar year 2002. This notice of Stockpiling, and Use of Chemical (6) Require advance notification and inquiry is part of an effort to collect Weapons and Their Destruction, annual reporting of all imports and information to assist in the preparation commonly called the Chemical exports of ‘‘Schedule 1’’ chemicals to, or of the annual Presidential certification Weapons Convention (CWC), is an from, other States Parties to the required under condition 9 of Senate international treaty that establishes the Convention (15 CFR 712.5, 742.18 and Resolution 75, April 24, 1997, in which Organization for the Prohibition of 745); and the Senate gave its advice and consent Chemical Weapons (OPCW) to (7) Prohibit the export of ‘‘Schedule to the ratification of the Chemical implement the verification provisions of 1’’ chemicals to States not Party to the Weapons Convention. the treaty. The CWC imposes a number Convention (15 CFR 742.18 and 745.2). DATES: Comments are due December 18, of obligations on countries that have Discussion and Request for Comments 2002. ratified the Convention (States Parties), In order to assist in determining ADDRESSES: Written comments (four including enactment of legislation to whether the legitimate commercial copies) should be submitted to Willard prohibit the production, storage, and activities and interests of chemical, Fisher, Regulatory Policy Division, use of chemical weapons, and biotechnology, and pharmaceutical Office of Exporter Services, Bureau of establishment of a National Authority firms in the United States are being Industry and Security, U.S. Department for liaison with the OPCW and other significantly harmed by the limitations of Commerce, 14th Street and States Parties. The CWC also requires of the Convention on access to, and Pennsylvania Avenue, NW., Room 2705, States Parties to implement a production of, ‘‘Schedule 1’’ chemicals, Washington, DC 20230. In order to meet comprehensive data declaration and BIS is seeking public comments on any the due date for comments, single inspection regime to provide effects that implementation of the copies may be faxed to (202) 482–3355, transparency and to verify that both the Chemical Weapons Convention has had provided that you follow up by public and private sectors of States on commercial activities involving submitting the appropriate number (four Parties are not engaged in activities ‘‘Schedule 1’’ chemicals. copies) of written comments. prohibited under the CWC. FOR FURTHER INFORMATION CONTACT: For ‘‘Schedule 1’’ chemicals are those Submission of Comments questions on the Chemical Weapons toxic chemicals and precursors All comments must be submitted to Convention requirements for ‘‘Schedule identified in the Convention as posing the address indicated in this notice. The 1’’ chemicals, contact Larry Denyer, a high risk to the object and purpose of Department requires that all comments Treaty Compliance Division, Office of the Convention. The ‘‘Schedule 1’’ be submitted in written form. Nonproliferation Controls and Treaty chemicals are set forth in the The Department encourages interested Compliance, Bureau of Industry and Convention’s ‘‘Annex on Chemicals,’’ as persons who wish to comment to do so Security, U.S. Department of Commerce, well as in Supplement No. 1 to part 712 at the earliest possible time. The period Phone: (703) 605–4400. For questions of the Chemical Weapons Convention for submission of comments will close on the submission of comments, contact Regulations (15 CFR 712). on December 18, 2002. The Department Willard Fisher, Regulatory Policy The ‘‘Schedule 1’’ provisions of the will consider all comments received Division, Office of Exporter Services, Convention that affect commercial before the close of the comment period. Bureau of Industry and Security, U.S. activities are implemented through part Comments received after the end of the Department of Commerce, Phone: (202) 712 of the Chemical Weapons comment period will be considered if 482–2440. Convention Regulations and parts 742 possible, but their consideration cannot SUPPLEMENTARY INFORMATION: and 745 of the Export Administration be assured. The Department will not Regulations, both administered by the accept comments accompanied by a Background Bureau of Industry and Security. These request that a part or all of the material In its resolution to advise and consent regulations: be treated confidentially because of its to the ratification of the Chemical (1) Prohibit the import of ‘‘Schedule business proprietary nature or for any Weapons Convention (S. Res. 75, April 1’’ chemicals from States not Party to other reason. The Department will 24, 1997), the Senate included several the Convention (15 CFR 712.2); return such comments and materials to VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70927 the persons submitting the comments made to the Tariff Act of 1930 (the board. Modules that contain other parts and will not consider them. All ‘‘Act’’) by the Uruguay Round that are needed to support the function comments submitted in response to this Agreements Act. In addition, unless of memory are covered. Only those notice will be a matter of public record otherwise indicated, all citations to the modules that contain additional items and will be available for public Department of Commerce’s (the which alter the function of the module inspection and copying. ‘‘Department’’) regulations are to something other than memory, such The Office of Administration, Bureau references to the provisions codified at as video graphics adapter (‘‘VGA’’) of Industry and Security, U.S. 19 CFR Part 351 (April 2002). boards and cards, are not included in Department of Commerce, displays the scope. This investigation also covers The Petition public comments on the BIS Freedom of future DRAM module types. Information Act (FOIA) Web site at On November 1, 2002, the Department The scope of this investigation http://www.bis.doc.gov/foia. This office received a petition filed in proper form additionally includes, but is not limited does not maintain a separate public by Micron Technology, Inc. (the to, video random access memory inspection facility. If you have technical ‘‘petitioner’’). The Department received (‘‘VRAM’’), and synchronous graphics difficulties accessing this web site, supplemental information to support RAM (‘‘SGRAM’’), as well as various please call BIS’s Office of the petition on November 13 and 19, types of DRAMs, including fast page- Administration, at (202) 482–0637, for 2002. mode (‘‘FPM’’), extended data-out assistance. In accordance with section 702(b)(1) (‘‘EDO’’), burst extended data-out of the Act, the petitioner alleges that (‘‘BEDO’’), synchronous dynamic RAM Dated: November 20, 2002. manufacturers, producers, or exporters (‘‘SDRAM’’), Rambus DRAM James J. Jochum, of the subject merchandise from the (‘‘RDRAM’’) and Double Data Rate Assistant Secretary for Export Republic of Korea (‘‘Korea’’) receive DRAM, (‘‘DDR SDRAM’’). The scope Administration. countervailable subsidies within the also includes any future density, [FR Doc. 02–30011 Filed 11–26–02; 8:45 am] meaning of section 701 of the Act, and packaging, or assembling of DRAMs. BILLING CODE 3510–33–P that imports of the subject merchandise Also included in the scope of this are materially injuring, or threatening investigation are removable memory material injury to, an industry in the modules placed on motherboards, with DEPARTMENT OF COMMERCE United States. or without a central processing unit The Department finds that the International Trade Administration (‘‘CPU’’), unless the importer of the petitioner filed this petition on behalf of motherboards certifies with the Customs [C–580–851] the domestic industry because the Service that neither it, nor a party petitioner is an interested party as related to it or under contract to it, will Notice of Initiation of Countervailing defined in section 771(9)(C) of the Act remove the modules from the Duty Investigation: Dynamic Random and it has demonstrated sufficient motherboards after importation. The Access Memory Semiconductors from industry support. See ‘‘Determination of scope of this investigation does not the Republic of Korea Industry Support for the Petition’’ include DRAMs or memory modules AGENCY: Import Administration, section, below. that are re-imported for repair or International Trade Administration, Scope of Investigation replacement. Department of Commerce. The DRAMs subject to this The products covered by this investigation are currently classifiable ACTION: Initiation of Countervailing investigation are Dynamic Random under subheadings 8542.21.8005 and Duty Investigation. Access Memory semiconductors 8542.21.8021 through 8542.21.8029 of (‘‘DRAMs’’) from Korea, whether EFFECTIVE DATE: November 27, 2002. the Harmonized Tariff Schedule of the assembled or unassembled. Assembled United States (‘‘HTSUS’’). The memory FOR FURTHER INFORMATION CONTACT: DRAMs include all package types. modules containing DRAMs from Korea, Suresh Maniam or Ryan Langan at (202) Unassembled DRAMs include processed described above, are currently 482–0176 or (202) 482–2613, wafers, uncut die, and cut die. classifiable under subheadings respectively; AD/CVD Enforcement, Processed wafers fabricated in Korea, 8473.30.10.40 or 8473.30.10.80 of the Group I, Office 1, Import but assembled into finished HTSUS. Although the HTSUS Administration, International Trade semiconductors outside Korea are also subheadings are provided for Administration, U.S. Department of included in the scope. Processed wafers convenience and Customs purposes, the Commerce, Room 3099, 14th Street and fabricated outside Korea and assembled Department’s written description of the Constitution Avenue, NW, Washington, into finished semiconductors in Korea scope of this investigation remains DC 20230. are not included in the scope. dispositive. SUMMARY: The Department of Commerce The scope of this investigation is initiating a countervailing duty additionally includes memory modules Scope Issue investigation to determine whether containing DRAMs from Korea. A The scope language as proposed by manufacturers, producers, or exporters memory module is a collection of the petitioner included ‘‘[p]rocessed of dynamic random access memory from DRAMs, the sole function of which is wafers fabricated outside Korea, and the Republic of Korea have received memory. Memory modules include assembled into finished semiconductors countervailable subsidies. single in-line processing modules in Korea.’’ As discussed below, the SUPPLEMENTARY INFORMATION: (‘‘SIPs’’), single in-line memory modules Department has determined not to INITIATION OF INVESTIGATION: (‘‘SIMMs’’), dual in-line memory include this language in the scope of modules (‘‘DIMMs’’), small outline dual this investigation. In past The Applicable Statute and Regulations in-line memory modules (‘‘SODIMMs’’), semiconductor cases, the Department Unless otherwise indicated, all Rambus in-line memory modules has determined that country of citations to the statute are references to (‘‘RIMMs’’), and memory cards or other fabrication confers country of origin and the provisions effective January 1, 1995, collections of DRAMs, whether in fact has specifically excluded wafers the effective date of the amendments unmounted or mounted on a circuit produced in a third country that are VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70928 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices assembled and packaged in Korea. See, states that the Department typically criteria are appropriate. The information e.g., Notice of Final Determination of defers to the petitioner when framing presented by the petitioner does not Sales at Less Than Fair Value: Dynamic the scope of the merchandise being meet that threshold. Random Access Memory investigated. First, section 701(a)(1) of the Act Semiconductors of One Megabit and At consultations and in its later provides for the investigation of Above (′′DRAMs′′) From Taiwan, 64 FR filings, the GOK has argued that the whether a countervailable subsidy is 56308, 56309 (October 19, 1999) and Department should not expand the being provided to ‘‘a class or kind of Final Determination of Sales at Less scope from prior determinations to merchandise.’’ A single definable class Than Fair Value: Dynamic Random include merchandise fabricated outside or kind of merchandise is linked Access Memory Semiconductors of One Korea but assembled and tested in inextricably to its country of origin, Megabit and Above From the Republic Korea. The GOK contends that the which is in turn determined, for of Korea, 58 FR 15467 (March 23, 1993). expanded scope is contrary to purposes of both antidumping and The petitioner states that it considers Department practice and that the facts countervailing duty proceedings, by the DRAMs to originate in Korea if the do not support a change in practice. The substantial transformation test. DRAMs are fabricated and/or assembled GOK asserts that the wafers are the (EPROMs, supra, at General Comment in Korea, asserting that this position defining component of the DRAM or 28.) Accordingly, the Department finds takes into account the country of origin memory module and that the value that it would not be appropriate or rule used for U.S. Customs purposes, added for final assembly is much feasible to have a class or kind of which is based on the country of smaller than the wafer fabrication, merchandise subject to investigation assembly. The petitioner further asserts accounting for less than 15 percent of that would require two different and that the subsidies that are being the total cost of the DRAM. In support potentially conflicting country-of-origin provided by the Government of the of its position, the GOK cites Erasable tests. Thus, the Department cannot Republic of Korea (‘‘GOK’’) provide a Programmable Read Only Memories accept the alternative test implicated by significant benefit to all facets of the (EPROMs) From Japan; Final petitioner’s proposed scope language, semiconductor production process in Determination of Sales at Less than Fair i.e., that the assembly and testing Korea, including the assembly and Value (‘‘EPROMs’’), 51 FR 39680 operations should also set country-of- testing phases. The petitioner notes that (October 30, 1986), where the origin. the past cases before the Department Department found that EPROM wafers The Department has independent have been antidumping cases and and dice originated in the country of authority to determine the scope of its asserts that the scope from earlier fabrication, not in the country where investigations. See Diversified Products antidumping cases should not be assembly and testing occurred. In Corp. v. United States, 572 F. Supp. 883, imported into a countervailing duty case EPROMs, the Department found that 887 (CIT 1983). The Department’s based on the fundamental differences third country assembly and testing did authority to make its own country of between the two types of proceedings. not constitute a ‘‘substantial origin determinations is inherent in its According to the petitioner, unlike an transformation’’ that changed the independent authority to determine the antidumping case where the Department country of origin from the country of scope of AD/CVD investigations. is concerned with unfair pricing fabrication. Concerning the petitioner’s Moreover, the Department’s country-of- between private parties, a assertion that the language in past cases origin determinations, which have not countervailing duty case involves the is not applicable because those cases always been identical with Customs’s examination of government subsidies were antidumping cases, the GOK notes country-of-origin determinations, reflect that benefit an entire production that the Department based its analysis in concerns specific to enforcement of the process. The petitioner claims that any EPROMS on its interpretation of the AD/CVD laws, such as the potential for DRAM assembled in Korea must be ‘‘class or kind of foreign merchandise’’ the circumvention of orders. See, e.g., included in the scope because all as defined in the antidumping statute, EPROMS from Japan, 51 FR 39680 DRAMs have benefitted from the and that the subsidy statute uses almost (October 30, 1986); DRAMS of 256 subsidies. According to the petitioner, the identical language. Kilobits and Above from Japan, 51 FR while the limitation of scope to the Concerning the petitioner’s argument 28396 (August 7, 1986); Certain Cold- country of fabrication may be reasonable regarding Customs’ rulings, the GOK Rolled Carbon Steel Flat Products From in an antidumping case, such a finding points out that the Department has not Argentina, 58 FR 37062 (July 9, 1993). in this case would address only a part felt bound by Customs’ country of origin Given this authority, the Department of the overall DRAM production process rulings because these rulings serve has determined that it is appropriate to in Korea and would permit a different purposes. continue to base origin on wafer continuation of the material injury the We have considered this issue fabrication. While the petitioner may be law is designed to prevent. carefully and, as stated in the ‘‘scope of correct that testing and assembly may be The petitioner further argues that the investigation’’ section above, have more costly than in the past, there does increasing cost and sophistication of the determined that processed wafers not seem to be any dispute that wafer assembly and testing operations in fabricated outside Korea and assembled fabrication is still the more important recent years separately justifies into finished semiconductors in Korea stage of the production process. Indeed, including DRAMs assembled in Korea are not included in the scope. The the petitioner contends, and we agree as in the scope of this investigation. In principal reason for this determination in past determinations, that wafers addition, the petitioner asserts that to is that in numerous past proceedings on fabricated in Korea and assembled and include assembly in the scope resolves DRAMs and similar products such as tested in third countries are within the an inconsistency in the earlier EPROMs, the Department has scope of this proceeding. Consequently, semiconductor cases where the consistently maintained that the country we have not adopted the petitioner’s Department based the scope on country of origin is the country where wafer proposed scope. of fabrication but the International fabrication occurs. Given those Trade Commission’s definition of the precedents, we are unwilling to adopt Consultations domestic industry included fabricators different criteria for determining origin Pursuant to section 702(b)(4)(A)(ii) of and assemblers. Finally, the petitioner absent compelling information that new the Act, the Department invited VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70929 representatives of the GOK for product definition that is consistent meaning of section 701(b) of the Act, consultations with respect to the with our revised scope language. The section 701(a)(2) of the Act applies to petition filed. On November 12, 2002, petition covers DRAMs as defined in the this investigation. Accordingly, the ITC the Department held consultations with ‘‘Scope of the Investigation’’ section, must determine whether imports of the the GOK. The points raised in the above, a single class or kind of subject merchandise from Korea consultations are described in a merchandise. materially injure, or threaten material memorandum to the file entitled ‘‘CVD Section 702(b)(1) of the Act requires injury to, an industry in the United Consultations with Officials from the that a petition be filed on behalf of the States. Government of the Republic of Korea,’’ domestic industry. Section 702(c)(4)(A) Allegations and Evidence of Material dated November 13, 2002. This of the Act provides that a petition meets Injury and Causation memorandum is on file in the this requirement if the domestic Department’s Central Records Unit, producers or workers who support the The petition alleges that the U.S. Room B–099 of the main Department of petition account for: (1) at least 25 industry producing the domestic like Commerce building. The GOK filed percent of the total production of the product is being materially injured, or is submissions with the Department on domestic like product; and (2) more threatened with material injury, by November 18 and 19, 2002. than 50 percent of the production of the reason of the subsidization of the domestic like product produced by that imports of the subject merchandise. The Determination of Industry Support for portion of the industry expressing petitioner contends that the industry’s the Petition support for or opposition to the petition. injured condition is evident in the Section 771(4)(A) of the Act defines Finally, section 702(c)(4)(D) of the Act declining trends in domestic prices, the ‘‘industry’’ as the producers as a provides that if the petition does not operating income and profitability, whole of a domestic like product. Thus, establish support of domestic producers market share, budgeting for research and when determining the degree of or workers accounting for more than 50 development, capital expenditures, industry support, the statute directs the percent of the total production of the inventory valuations,2 production Department to look to producers and domestic like product, the capacity,3 as well as lost sales and workers who produce the domestic like administering agency shall: (i) poll the revenue due to subject imports. The product. The International Trade industry or rely on other information in petitioner further alleges threat of injury Commission (‘‘ITC’’), which is order to determine if there is support for due to increased import volumes, responsible for determining whether the petition as required by subparagraph inventory levels in Korea, unused and ‘‘the domestic industry’’ has been (A); or (ii) determine industry support increasing production capacity, and injured, must also determine what using any statistically valid sampling price depression. The petitioner asserts constitutes a domestic like product in method to poll the industry. that because of the negative trends order to define the industry. While both The Department has determined, discussed above, several domestic the Department and the ITC must apply pursuant to section 702(c)(4)(D), that producers have either ceased operations the same statutory definition regarding there is support for the petition as or consolidated operations with other the domestic like product (section required by subparagraph (A). domestic producers, and there have 771(10) of the Act), they do so for Specifically, the Department made the been no new entrants in the domestic different purposes and pursuant to following determinations. The domestic industry. The allegations of injury and separate and distinct authority. In producers or workers who support the causation are supported by relevant addition, the Department’s petition established industry support evidence including U.S. Customs import determination is subject to limitations of representing over 50 percent of total data, the financial statements of Micron time and information. Although this production of the domestic like product. and Infineon Technologies, lost sales may result in different definitions of the Therefore, the domestic producers or and revenue data, and pricing like product, such differences do not workers who support the petition information. We have assessed the render the decision of either agency account for at least 25 percent of the allegations and supporting evidence contrary to the law.1 total production of the domestic like regarding material injury and causation, Section 771(10) of the Act defines the product, and the requirements of section and we have determined that these domestic like product as ‘‘a product 702(c)(4)(A)(i) are met. Furthermore, allegations are properly supported by which is like, or in the absence of like, because the Department received no accurate and adequate evidence, and most similar in characteristics and uses opposition to the petition, the domestic meet the statutory requirements for with, the article subject to an producers or workers who support the initiation (see Initiation Checklist). investigation under this title.’’ Thus, the petition account for more than 50 Allegations of Subsidies reference point from which the percent of the production of the domestic like product analysis begins is domestic like product produced by that Section 702(b) of the Act requires the ‘‘the article subject to an investigation,’’ portion of the industry expressing Department to initiate a countervailing i.e., the class or kind of merchandise to support for or opposition to the petition. duty proceeding whenever an interested be investigated, which normally will be Thus, the requirements of section party files a petition on behalf of an the scope as defined in the petition. As 702(c)(4)(A)(ii) are also met. industry that (1) alleges the elements discussed in the scope section of this Accordingly, the Department necessary for the imposition of a duty notice, we have modified the scope from determines that the petition was filed on the scope presented in the petition. For behalf of the domestic industry within 2 Specifically, the petitioner alleges that the purposes of calculating industry industry has recently experienced large write- the meaning of section 702(b)(1) of the downs of inventory valuation due to historically support, we have used a domestic like Act. See the Initiation Checklist dated low selling prices. November 21, 2002 (‘‘Initiation 3 The petitioner states that wafer capacity has not 1 See Algoma Steel Corp. Ltd., v. United States, Checklist’’). increased over the last three years. Rather, capacity 688 F. Supp. 639, 642-44 (CIT 1988); High has been reduced due to industry consolidation and Information Content Flat Panel Displays and Injury Test plant closures, and it has been retooled for Display Glass from Japan: Final Determination; production of other types of semiconductors or Rescission of Investigation and Partial Dismissal of Because Korea is a ‘‘Subsidies upgraded with new equipment to accommodate Petition, 56 FR 32376, 32380-81 (July 16, 1991). Agreement Country’’ within the new densities, die shrinks, or address technologies. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70930 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices under section 701(a), and (2) is case; 3) completed and audited financial setting out an 18–month POI at the accompanied by information reasonably statements or completed and submitted outset, we avoid the situation of having available to the petitioner supporting tax returns would not be available, parties seek to shape the period of the allegations. placing an unnecessary burden on the investigation to achieve a particular U.S. government, the GOK, and the outcome. Period of Investigation respondents; and 4) no rationale was Regarding the concerns raised by the The petitioner has identified provided to expand the POI, nor has the GOK, the issue is not whether the numerous instances of alleged petitioner cited any cases in which the subsidies will be captured in the government support for Hynix Department departed from its practice of investigation or a possible Semiconductor Inc. (‘‘Hynix’’)4 in 2001. using a single calendar year POI. administrative review. Instead, the The petitioner has argued that much of Under 19 CFR 351.204(b)(2), the petitioner has provided information this assistance should be addressed Department normally relies on available to it indicating that the subject under the Department’s grant information pertaining to the most merchandise is subsidized. The lack of methodology because although the recently completed fiscal year for the perfect information, or questions about assistance was ostensibly in the form of government and exporters or producers the timing of the benefits under the loans, there were non-viable in question. That same regulation also Department’s various methodological contingencies on repayment. states, however, that we may rely on approaches, should not preclude the Alternatively, the petitioner has argued information for any additional or petitioner from seeking meaningful that the assistance should be treated as alternative period that we conclude is relief. Second, we do not see that an long-term loans with special appropriate. In this proceeding, because expanded POI would complicate the characteristics such that the benefit the petition was filed in November investigation beyond the collection of would be recognized at the time the 2002, the normal POI would be 2001. additional data. Third, although funds were disbursed to Hynix in Recognizing that adoption of an 18– completed and audited 2002 financial accordance with the methodology month period of investigation would be statements might not be initially described in 19 CFR 351.505(b) and a departure from our normal practice, available, the Department routinely 351.505(c)(3). If the Department rejects we have carefully considered the merits relies on draft financial statements. these methodologies, then its of the petitioner’s claims and the Finally, although the petitioner has not regulations indicate that the benefit concerns raise by the GOK. Given the cited any cases in which the Department would accrue at the time that interest lateness of the filing in 2002, we departed from its practice of using a would be paid on a comparable considered collecting data for two single calendar year as the POI, as noted commercial loan, according to the separate 12–month periods, 2001 and above, the Department has the petitioner. However, based on 2002, and then deciding which data set discretion to do so. information reasonably available to it, to use once the relevant facts were Initiation of Countervailing Duty the petitioner has not been able to discovered through the investigation Investigation determine the terms of the allegedly process. However, such an approach has subsidized assistance and, the obvious drawback that the The Department has examined the consequently, has not been able to Department would have to select countervailing duty petition on DRAMs calculate the interest that would have between the two periods in making its from Korea and found that it complies been paid in 2001 or whether, in fact, final determination of subsidies, and the with the requirements of section 702(b) interest obligations even began before period picked could have a significant of the Act. Therefore, in accordance 2002. effect on the outcome of the proceeding. with section 702(b) of the Act, we are To address these unique Instead, we have determined from the initiating a countervailing duty circumstances, the petitioner requests outset of this proceeding that we will investigation to determine whether that the Department expand the period use the 18–month period of manufacturers, producers, or exporters of investigation (‘‘POI’’) to include not investigation urged by the petitioner. of DRAMs from Korea receive only 2001, but also the first six months We agree that the terms of various countervailable subsidies. of 2002. The petitioner claims this is alleged subsidies are not reasonably available to the petitioner and that the I. Creditworthiness and necessary because a POI limited to 2001 Equityworthiness may permit the subsidies to Hynix to methodology, including the point in escape scrutiny. If the Department finds time that the benefits would be deemed The petitioner alleges that Hynix was that the assistance to Hynix should be to have accrued, will only be known uncreditworthy in 2000 and 2001 and addressed under a methodology that after an investigation and analysis of the continues to be uncreditworthy in 2002. assigns the benefits to 2001, the parties’ comments. In these The petitioner claims that at the end of petitioner states that there may be no circumstances, we do not believe that 1999, HEI was at a cash crisis point, need to extend the POI. we should limit this investigation to the with 495 billion Won in short-term debt In consultations, the GOK argued that normal POI because doing so may be and 2,502 billion Won in long-term Hynix, Samsung Electronics Company tantamount to telling the petitioner that debt, and approximately one trillion (‘‘Samsung’’), and the GOK have it has to bring a case simply to learn that Won in interest payments due in 2000. calendar fiscal years and, as such, the the petition should have been filed at a HEI had only 808 billion Won in Department’s standard practice is to use later time (despite that fact that operating profits in 1999 so it was clear only the calendar year 2001 as the POI. allegedly injurious imports have been that HEI would be unable to pay off the The GOK claims that no basis for occurring all along). Our regulations at loans and meet its interest obligations. expanding the POI exists because 1) any 19 CFR 351.204(b)(2) accord us the Specifically, the petitioner claims that benefits received in 2002 would be flexibility to address these unusual Hynix has not received any new lending captured in a review; 2) expanding the circumstances by expanding the POI. on commercial terms since the POI would unnecessarily complicate the Moreover, we do not intend to scale beginning of 2001. With one exception, back the 18–month period of all loans received by Hynix in 2002 4 Hynix was known as Hyundai Electronics investigation if, as the petitioner were from government agencies or Industries Co. Ltd. (‘‘HEI’’) until March 29, 2001. suggests, we find it unnecessary. By creditors entrusted or directed by the VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70931 government to extend credit to Hynix. time relying on various financial petitioner claims that the convertible The petitioner states that Hynix indicators: total liabilities to net worth; bonds should be treated as equity, not received one ‘‘relatively insignificant’’ fixed assets to net worth; current debt, because the bondholders were loan from Citibank. However, the liabilities to net worth; the current ratio; obligated to convert the bonds and petitioner notes that the Department’s and the quick ratio. According to the Hynix treated these bonds as capital practice is to examine the circumstances petitioner, the current ratio indicates adjustments. In the case of a government surrounding commercial bank loans that that even if Hynix were to liquidate its equity infusion, the Department are part of financing packages that current assets at full book value, it measures the benefit by examining the involve the government to determine would be unable to pay off its current investment decision against the usual whether there are any special features of liabilities in full. Regarding the quick investment practice of a private the package that would lead the ratio, the petitioner notes that Hynix investor. 19 CFR 351.507(a)(1). commercial lender to offer lower, more could cover only 8 percent of its current Specifically, the Department compares favorable terms than would be offered liabilities with current assets other than the purchase price paid by the absent the government/ commercial inventories. The petitioner also claims government to prices paid for new bank package (citing to the Preamble to that Hynix’s debt was increasing. The shares by private investors, if such the Countervailing Duties: Final Rule, company’s debt-to-equity ratio was 186 prices exist. 19 CFR 351.507(a)(2). If 63 FR 65348, 65363–64 (November 25, percent in 2000 and rose to 193 percent actual private investor prices are 1998). The petitioner claims that the in 2001. Finally, the petitioner notes unavailable, the Department will loan from Citibank, for several reasons, that for the period 1998 to 2001, Hynix determine the equityworthiness of a could not be viewed as being had current liabilities which exceeded company at the time of the equity comparable to the GOK’s loans. its net worth for three of the years. infusion. 19 CFR 351.507(a)(3). The petitioner further alleges that According to the petitioner, only after In this case, although Hynix did issue throughout the period 2000 and 2001, the bailout in 2001, did this ratio drop GDR’s in the first half of 2001, we find Hynix had a significant amount of debt below one. In examining a company’s that the petitioner provides a reasonable coming due and the company would not creditworthiness we attempt to basis to believe or suspect that, at the be able to pay off this debt using its determine if the company in question time of the October 2001 bailout, Hynix internal free cash flow. Therefore, Hynix could obtain long-term financing from was not equityworthy. If we determine needed help from the government. To conventional commercial sources. 19 that Hynix received an equity infusion support this, the petitioner points to CFR 351.505(a)(4). We find that the in 2001, we will make a determination comments made by investment banks in financial information submitted by the regarding Hynix’s equityworthiness at their reports during 2000 and 2001. For petitioner provides a reasonable basis to the time of the infusion. example, the reports stated: ‘‘[w]e believe or suspect that Hynix was II. Programs believe it would be difficult for [Hynix] uncreditworthy in 2000 - 2002. We are including in our investigation to secure sufficient funds to repay its Therefore, if we find that Hynix debt...;’’ ‘‘[Hynix has a] fundamental the following programs alleged in the received any non-recurring grants, petition to have provided problem of excessive debt which was loans, or loan guarantees in those years, around 87 percent of 2001 sales;’’ countervailable subsidies to producers we will determine whether the company and exporters of the subject ‘‘[Hynix is] not profitable and is not was creditworthy in those years. paying off debt at a sufficiently fast rate merchandise in Korea. The bases for our from internal cash flow or asset The petitioner also alleges that Hynix determination to investigate these disposals;’’ ‘‘we believe Hynix’s balance was unequityworthy in 2001, the year in programs are set forth in the Initiation sheet risk remains high.’’ According to which Hynix recorded convertible Checklist. the petitioner, the investment bonds as capital adjustments (i.e., For several of the programs listed community’s analyses at the time swapped debt for equity). Specifically, below, the petitioner alleges that the reveals that it was known that Hynix according to the petitioner: 1) Hynix GOK 1) directs credit in Korea, and 2) did not have the cash flow to repay posted net losses since 1998; 2) the lead this credit was directed specifically to debts and would not be able to obtain underwriter of Hynix’s 2001 issuance of the semiconductor industry. For the funding from normal commercial global depository receipts (‘‘GDR’’) did reasons stated in the Initiation sources. not foresee positive free cash flow for Checklist, we are investigating whether Since the two bailouts in 2001, the the company through the fourth quarter the GOK directs credit in Korea and petitioner claims that Hynix’s financial of 2003; 3) without free positive cash whether the semiconductor industry situation has continued to worsen, with flow, Hynix could not service its debt, receives a disproportionate share of the Hynix reporting a loss of more than 410 forcing it into bankruptcy and directed credit. billion Won for the first half of 2002. eliminating any claims by the A. Bailout Subsidies to Hynix Meanwhile, the petitioner notes, Hynix shareholders on the company’s still has 5,982 billion Won in debt, a proceeds; 4) Hynix’s return on equity 1. Syndicated Bank Loan of 800 Billion large portion of which is coming due in was negative for the period 1998 Won the next few years. With DRAM prices through 2000 (negative 35.5 in 2000), 2. 22.7 Billion Won Citibank Loan and was projected to range from 3. KDB Fast Track Program at historical lows, the petitioner argues 4. May 2001 Bailout that there is no reasonable expectation, negative 54.1 percent to negative 89.1 a. Creditor Purchase of 994.1 Billion under normal commercial percent through 2003; and 5) although Won of Convertible Bonds considerations, that Hynix’s debt will Hynix had a GDR equity offering to b. 6 Billion Won Grant ever be repaid without GOK assistance. private investors in June 2001, because c. 5.9 Billion Won Loan Without GOK intervention, the the 72 percent drop in the prices of d. Extension of Maturities of 58 Billion petitioner claims, banks would not these GDRs showed that Hynix’s Won of Short-Term Loans continue to provide new money to financial position had degenerated, this e. Extension of Maturities of Long-Term Hynix, at any interest rate. offering does not indicate that Hynix Loans The petitioner additionally examines was equityworthy at the time of the f. Committed Availability of Short-Term Hynix’s financial condition during the debt-equity swap in October 2001. The Financing VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70932 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 5. 680 Billion Won Bond Guarantee Distribution of Copies of the Petition Department of Commerce, 14th Street and Constitution Avenue, NW., 6. October 2001 Bailout In accordance with section Washington, DC 20230. a. Equity Infusion 702(b)(4)(A)(i) of the Act, a public b. Extension of Debt Maturities and version of the petition has been SUPPLEMENTARY INFORMATION: Directions Reduction or Elimination of Interest provided to the GOK. We will attempt to the NCCATT are as follows: Take Exit Obligations to provide a public version of the 27 off of I-85 South. Go left at the top c. Debt Forgiveness petition to each exporter named in the of the exit ramp on Highway 273 for d. Conversion of Short-Term Financing petition, as provided for under 19 CFR approximately 1/3 of a mile. Go left on to Long-Term Loans 351.203(c)(2). Highway 74 for approximately 2/3 of a e. Fresh Loans mile until you reach the NCCATT 7. D/A Financing ITC Notification campus on your right. Proceed to the B. Other Subsidies We have notified the ITC of our auditorium in the ‘‘new building’’ at 1. Preferential Loan Programs initiation, as required by section 702(d) 7230 Wilkinson Boulevard. From a. Fund for Industrial Technology of the Act. Charlotte airport follow signs to I-85 Development South and the directions are the same as Preliminary Determination by the ITC b. Fund for Promotion of Science and above. For further information please Technology The ITC will determine, no later than contact the North Carolina Center for Applied Textile Technology at (704) c. Fund for Rental Housing December 16, 2002, whether there is a 825-3737. d. Fund for Promotion of Defense reasonable indication that imports of The meeting will be co-chaired by Industry DRAMs from Korea are causing material James C. Leonard III, Commerce Deputy e. Long-Term Usance Loans injury, or threatening to cause material injury, to an industry in the United Assistant Secretary for Textiles, Apparel f. Export Industry Facility Loans and Consumer Goods Industries and Dr. (‘‘EIFLs’’) States. A negative ITC determination will result in the investigation being Glenn O. Allgood, Principal g. Short-term Export Financing Investigator, Oak Ridge National h. Export Credit Financing From Export- terminated; otherwise, this investigation will proceed according to statutory and Laboratory. During the meeting the Import Bank of Korea following agenda item will be regulatory time limits. i. Loans From the Energy Savings Fund discussed. This notice is issued and published j. Fund for Machinery Made in Korea Department of Commerce (DOC)/ pursuant to section 777(i) of the Act. k. Fund for Promotion of Department of Energy (DOE) Project to Informatization Dated: November 21, 2002. Explore the Development of a Special 2. R&D Support Faryar Shirzad, Textile ‘‘Marker’’ System 3. Tax Programs Assistant Secretary for Import DOE will make a presentation on the a. Reserve for Overseas Market Administration. technologies under investigation for a Development - (Former) Article 17 of [FR Doc. 02–30138 Filed 11–26–02; 8:45 am] textile ‘‘marker’’ system. DOE and DOC TERCL BILLING CODE 3510–DS–S officials will discuss this project at the b. Technological Development Reserve meeting, and will encourage Funds - (Former) Article 8 of TERCL participants to provide individual c. Reserve for Export Loss - (Former) DEPARTMENT OF COMMERCE comments and information on these Article 16 of TERCL technologies with particular reference d. Tax Credit for Investment in Facilities International Trade Administration to: cost effectiveness; compatibility with for Productivity Enhancement under U.S. manufacturing processes; the Notice of Open Town Meeting for ability to survive foreign fabrication Article 24 of RSTA Information Gathering on Exploring the e. Miscellaneous Investment Tax Credits techniques; and compatibility with U.S. Development of a Textile ‘‘Marker’’ Customs processes and procedures. - Article 10, 18, 25, 26, and 71 of RSTA System f. Foreign Investment Promotion Act Discussion will include possibilities of (Formerly Foreign Capital Inducement November 22, 2002. and opportunities for plant visits by DOE personnel and other pertinent Law (‘‘FCIL’’)) AGENCY: Department of Commerce, issues. 4. Other Benefits International Trade Administration. a. Duty Drawback on Non-Physically ACTION: Notice of an open meeting. Background Incorporated Items and Excessive Loss On October 29, 2002 the Department Rates SUMMARY: The International Trade of Commerce entered into an agreement b. Export Insurance Administration (ITA) will hold a public with the Department of Energy’s Oak c. Electricity Discounts Under the meeting on technologies under Ridge Operations Office to explore the Requested Load Adjustment Program investigation for a textile ‘‘marker’’ development of a special ‘‘marker’’ d. Targeted Assistance Programs system. system to track the presence of U.S.- i. Operation G&/HAN Program and 21st DATES: The meeting is scheduled for made yarns and fabrics in U.S. apparel Century Frontier R&D Program December 10, 2002, from 10:00am to imports. ii. Korean Semiconductor Research 12:00pm. Certain provisions of U.S. apparel Project import preference programs and free We are not investigating the following ADDRESSES: The meeting will be held at trade area agreements require the use of alleged subsidy programs: Tax Credit for the North Carolina Center for Applied U.S. textile inputs. However, the origin Investment in Equipment to Develop Textile Technology (NCCATT), 7220 of such inputs is difficult to determine Technology and Manpower - Article 11 Wilkinson Boulevard, Belmont, NC. and the development of a textile marker of RSTA (formerly Article 9 of TERCL) Telephone, (704) 825-3737. system is intended to ensure the use of and Special Taxation Provisions FOR FURTHER INFORMATION CONTACT: Don U.S. fabrics and yarns in products Relating to Corporate Restructuring. Niewiaroski, Jr. at (202) 482-4058, receiving preferences. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70933 Dated: November 22, 2002. phone number to Carolyn Peters no later ACTION: Notice. James C. Leonard III, than Thursday, December 5, 2002, and Deputy Assistant Secretary for Textiles, she will provide you with instructions SUMMARY: The National Oceanic Apparel and Consumer Goods Industries, for admittance. Mrs. Peter’s email Atmospheric Administration (NOAA) is Department of Commerce. address is [email protected] and notifying the public of its [FR Doc.02–30096 Filed 11–26–02; 8:45 am] her phone number is (301) 975–5607. implementation of amendments to the existing Area to be Avoided (ATBA) off BILLING CODE 3510–DR–S DATES: The meeting will convene December 10, 2002 at 8:25 a.m. and will the Washington Coast to include all adjourn at Noon on December 11, 2002. vessels of 1,600 gross tons and above DEPARTMENT OF COMMERCE solely in transit in accordance with the ADDRESSES: The meeting will be held in International Maritime Organization’s the Employees Lounge, Administration National Institute of Standards and (IMO) adoption of MSC 75/24, para Building, at NIST, Gaithersburg, Technology 6.7.4 on May 29, 2002. Maryland. Please note admittance DATES: The effective date of the Visiting Committee on Advanced instructions under SUMMARY amended ATBA is December 1, 2002. Technology paragraph. FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: AGENCY: National Institute of Standards George Galasso, Assistant Manager, Carolyn J. Peters, Visiting Committee on and Technology Department of Olympic Coast National Marine Advanced Technology, National Commerce. Sanctuary, phone (360) 457–6622, Institute of Standards and Technology, ACTION: Notice of partially closed email: [email protected]. meeting. Gaithersburg, Maryland 20899–1004, telephone number (301) 975–5607. SUPPLEMENTARY INFORMATION: An ATBA is defined by the IMO as an area that all SUMMARY: Pursuant to the Federal SUPPLEMENTARY INFORMATION: The ships or certain classes of ships should Advisory Committee Act, 5 U.S.C. app. Assistant Secretary for Administration, avoid because navigation is particularly 2, notice is hereby given that the with the concurrence of the General hazardous or it is exceptionally Visiting Committee on Advanced Counsel, formally determined on important to avoid casualties within the Technology, National Institute of January 16, 2002, that portions of the area. On December 7, 1994, the Standards and Technology (NIST), will meeting of the Visiting Committee on Maritime Safety Committee of the IMO meet Tuesday, December 10, 2002, from Advanced Technology which involve adopted an ATBA proposed by the U.S. 8:25 a.m. to 5:30 p.m. and Wednesday, discussion of proposed funding levels of government off the Olympic Coast December 11, 2002, from 8 a.m. to the Advanced Technology Program and National Marine Sanctuary (OCNMS). Noon. The Visiting Committee on the Manufacturing Extension Since implementation in June 1995, the Advanced Technology is composed of Partnership Program may be closed in United States has been monitoring twelve members appointed by the accordance with 5 U.S.C. 552b(c)(9)(B), compliance through the use of Canadian Director of NIST; who are eminent in because those portions of the meetings Coast Guard radar data from the Tofino such fields as business, research, new will divulge matters the premature Marine Communications and Traffic product development, engineering, disclosure of which would be likely to System. Compliance with the ATBA is labor, education, management significantly frustrate implementation of estimated to be between 90–95%, due to consulting, environment, and proposed agency actions; and that the excellent cooperation by the international relations. The purpose of portions of meetings which involve maritime community, vigorous this meeting is to review and make discussion of the staffing issues of education and outreach efforts by the recommendations regarding general management and other positions at OCNMS staff and the U.S. Coast Guard, policy for the Institute, its organization, NIST may be closed in accordance with and the sending of educational letters to its budget, and its programs within the 5 U.S.C. 552b(c)(6), because divulging those ships found to be in non- framework of applicable national information discussed in those portions compliance. policies as set forth by the President and of the meetings is likely to reveal The U.S. Coast Guard has recently the Congress. The agenda will include a information of a personal nature where conducted a Port Access Route Study NIST Update; an Update on Near-Term disclosure would constitute a clearly (PARS) to critically review all aspects of Strategic Environment; NIST 2010 unwarranted invasion of personal vessel movements in the area. The Implementation—Cross-cutting Themes privacy. from OU Operational Plan Reviews and conclusions of the PARS resulted in Results of Initial Planning Review Dated: November 20, 2002. three vessel routing proposals, which Sessions on Nanotechnology and Karen H. Brown, were approved by the Sub-Committee Homeland Security and a tour of the Deputy Director. on Safety of Navigation and forwarded Advanced Measurement Laboratory. [FR Doc. 02–30137 Filed 11–26–02; 8:45 am] to the Maritime Safety Committee for Discussions scheduled to begin at 2:45 BILLING CODE 3510–13–P adoption. The three proposals were: (1) p.m. and to end at 5:30 p.m. on A proposal to amend the IMO-adopted December 10, 2002, and to begin at 8 ATBA ‘‘Off the Washington Coast’’ to a.m. and to end at Noon on December DEPARTMENT OF COMMERCE increase its size and extend its 11, 2002, on the NIST budget, personnel applicability to commercial ships of issues, planning information and National Oceanic Atmospheric 1,600 gross tons and above; (2) A feedback sessions will be closed. Administration proposal for recommended routes in the Agenda may change to accommodate Amendments to the Area To Be United States waters of the Strait of Juan Committee business. Final agenda will Avoided Off The Olympic Coast de Fuca for smaller, slower moving be posted on website. All visitors to the National Marine Sanctuary vessels that normally do not use the National Institute of Standards and traffic separation scheme; and (3) A Technology site will have to pre-register AGENCY: National Ocean Service (NOS), proposal amending the existing traffic to be admitted. Please submit your National Oceanic Atmospheric separation schemes (TSSs) ‘‘In the Strait name, time of arrival, email address and Administration (NOAA), Commerce. of Juan de Fuca and Its Approaches,’’ VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70934 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices and ‘‘In Puget Sound and Its Continuing this buffer area parallel to of the ATBA applicability. The Olympic Approaches,’’ and adding TSSs and the TSS to a point at 124° 52.8′ W will Coast National Marine Sanctuary has other routing measures ‘‘In Haro Strait, allow sufficient room for this slower analyzed the population of vessels Boundary Pass, and in the Strait of moving traffic to transit without transiting the ATBA for the risk they Georgia.’’ These proposals were adopted conflicting with the inbound traffic pose to Sanctuary resources. The by the IMO’s Maritime Safety steering for the southern approach to the Sanctuary’s analysis and further Committee on May 29, 2002. MCS 75/ TSS. It also provides a greater margin of information on NOAA’s proposal, 24. safety around the hazards of Duntze and including charts and reports, can be NOAA’s amendment of the existing Duncan Rocks, and Tatoosh Island viewed at http:// ATBA off the OCNMS has two elements. which is known for its strong tides. www.ocnms.nos.noaa.gov/pubdocs/ First, it increases the size of the ATBA NOAA is also applying the ATBA to pars.html. to the north and west, to take into commercial ships of 1,600 gross tons account the amendment of the TSS. and above because these ships carry a Jamison S. Hawkins, This increased size will enhance substantial amount of bunker fuel. Acting Assistant Administrator for Ocean maritime safety because it provides a Concerns regarding spills of bunker fuel Services and Coastal Zone Management. greater margin of safety around the were heightened on the U.S. west coast [FR Doc. 02–30146 Filed 11–26–02; 8:45 am] navigational hazards of Duntze and after the 1999 incident involving the BILLING CODE 3510–NK–P Duncan Rocks and Tatoosh Island. New Carissa which spilled Second, NOAA has expanded the approximately 70,000 gallons of bunker class of ships to which the ATBA fuel. Requiring commercial ships of DEPARTMENT OF COMMERCE applies to include ships of 1,600 gross 1,600 gross tons and above to transit tons and above. These ships carry National Oceanic and Atmospheric outside the ATBA would move these Administration substantial amounts of bunker fuel, ships farther offshore, thus increasing which, if spilled, would have a the time available to respond to a [I.D. 110502A] devastating impact on the unique, propulsion or steering casualty and valuable, and sensitive resources of decreasing the potential for a drift or Endangered Species; File No. 1397 OCNMS. powered grounding. If there were to be AGENCY: The OCNMS and surrounding waters a discharge of bunker fuel, the increased National Marine Fisheries contain economically important fishery distance offshore would diminish the Service (NMFS), National Oceanic and resources, including a variety of impact on the shoreline and provide Atmospheric Administration (NOAA), baitfish, shellfish, and salmon. The more time to mobilize a response. Commerce. resources in this area are also critical to NOAA analyzed various ship sizes to ACTION: Receipt of application. the cultural activities and subsistence which the ATBA should be made living of Native American Indian tribes. SUMMARY: Notice is hereby given that Dr. applicable. Commercial ships of 1,600 Important archeological sites of these Jeanette Wyneken, Florida Atlantic gross tons (versus those of only 300 peoples are found on the shoreline and University, Department of Biological gross tons) are considered large enough which could probably be affected by an Sciences, 777 Glades Rd., Boca Raton, to be able to maneuver safely while oil spill from a ship. FL 33431, has applied in due form for avoiding the ATBA, in most weather In addition, the area has been a permit to take green sea turtles conditions. NOAA has determined there designated as a UNESCO Biosphere (Chelonia mydas) for purposes of will be minimal adverse impacts on Reserve and World Heritage Site and scientific research. shipping by expanding the applicability overlaps with the Washington Islands DATES: Written or telefaxed comments National Wildlife Refuge and Olympic of the ATBA to commercial ships of 1,600 gross tons and above. It will not must be received on or before December National Park. The coastal rocks and 27, 2002. islands provide important breeding, affect those ships bound for the Strait of ADDRESSES: The application and related nesting, and roosting areas for marine Juan de Fuca from the north or west. documents are available for review birds. Marbled murrelets, abundant in Most ships coming from destinations upon written request or by appointment this area, are listed by the United States well to the south of the ATBA will have in the following office(s): as a threatened species and are of to alter their course to enter the TSS and Permits, Conservation and Education special concern due to their high thus the expanded applicability of the Division, Office of Protected Resources, vulnerability to oil spills. Bald eagles, ATBA will have limited, if any, adverse NMFS, 1315 East-West Highway, Room listed as a threatened species, are also affect. 13705, Silver Spring, MD 20910; phone important to the marine ecosystem in The area is bounded by a line (301)713–2289; fax (301)713–0376; and the region. There are also resident and connecting the following geographical Southeast Region, NMFS, 9721 transient killer whale (orca) pods and positions: Point 1. 48° 23.30′ N, 124° 38.20′ W. Executive Center Drive North, St. several dolphin species which frequent Point 2. 48° 24.17′ N, 124° 38.20′ W. Petersburg, FL 33702–2432; phone the area. Point 3. 48° 26.15′ N, 124° 44.65′ W. (727)570–5301; fax (727)570–5320. When viewed in conjunction with the Point 4. 48° 26.15′ N, 124° 52.80′ W. FOR FURTHER INFORMATION CONTACT: U.S. Coast Guard amendment of the Point 5. 48° 24.67′ N, 124° 55.71′ W. TSS, the expansion of the scope of the Point 6. 48° 51.70′ N, 124° 15.50′ W. Carrie Hubard or Ruth Johnson, ATBA is necessary for protection of Point 7. 48° 07.70′ N, 124° 47.50′ W. (301)713–2289. natural resources from maritime Point 8. 48° 07.70′ N, 124° 11.00′ W. SUPPLEMENTARY INFORMATION: The casualty and for general maritime safety. The Olympic Coast National Marine subject permit is requested under the Moving the northern border of the Sanctuary Advisory Council and North authority of the Endangered Species Act ATBA to a consistent 4,000 yards south Puget Sound Risk Management Panel of 1973, as amended (ESA; 16 U.S.C. of the southernmost edge of the TSS have discussed the extension of the 1531 et seq.) and the regulations will provide an improved safety buffer provisions of the ATBA to vessels not governing the taking, importing, and for those smaller, slower moving vessels currently included. Both of these federal exporting of endangered and threatened that choose to transit south of the TSS. advisory bodies supported the extension species (50 CFR 222–226). VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70935 The applicant requests a 2–year DEPARTMENT OF COMMERCE DATES: Written comments on the permit to capture, sample, and release applications must be received on or green sea turtles on shallow reefs in National Oceanic and Atmospheric before December 12, 2002. Palm Beach County, FL. The research is Administration ADDRESSES: Send comments to John H. designed to examine the seasonal [I.D. 110102A] Dunnigan, Director, Office of habitat utilization, abundance, and Sustainable Fisheries (F/SF), NOAA movements of green sea turtles in this Atlantic Coastal Fisheries Cooperative Fisheries, 1315 East-West Highway, region. Forty sea turtles will be captured Management Act Provisions; Atlantic Silver Spring, MD 20910. The by hand at night and transported to land Coast Weakfish Fishery; Exempted applications, related documents, for sampling. All turtles will be Fishing Permits (EFPs) including the draft EA, and copies of the regulations under which EFPs are weighed, measured, photographed, and AGENCY: National Marine Fisheries issued may also be requested from this have stomach lavage performed. Service (NMFS), National Oceanic and Captures will be limited to twice a Atmospheric Administration (NOAA), address. month to minimize the affects of Commerce. FOR FURTHER INFORMATION CONTACT: Anne Lange 301–713–2334; FAX: 301– possible recapturing. Ten of the 40 ACTION: Notice of intent to issue EFPs to turtles captured will also have a VHF conduct experimental fishing; request 713–0596. transmitter attached to the carapace and for comments. SUPPLEMENTARY INFORMATION: These a unique identification number painted EFPs are requested under the Atlantic SUMMARY: on the carapace with white epoxy paint. NMFS announces that the Coastal Fisheries Cooperative Director, Office of Sustainable Fisheries, Turtles will be released within 12 hours Management Act (Atlantic Coastal Act), NMFS (Director) has received EFP of capture and will be returned to site 16 U.S.C. 5101 et seq., and regulations applications from the State of North at 50 CFR 697.22 concerning the of capture. At the completion of the Carolina to conduct experimental conduct of activities that are otherwise study, tagged turtles will be located, fishing operations otherwise restricted prohibited by the regulations in this recaptured, the tag removed, and by regulations prohibiting the use of part. Since regulations under the released. flynets to fish for weakfish in a closed Atlantic Coastal Act must be consistent In compliance with the National area of the exclusive economic zone with the national standards set forth in Environmental Policy Act of 1969 (42 (EEZ) south of Cape Hatteras. The section 301 of the Magnuson-Stevens U.S.C. 4321 et seq.), an initial Director has made a preliminary Fishery Conservation and Management determination has been made that the determination that the EFP applications Act (Magnuson-Stevens Act), 16 U.S.C. activity proposed is categorically contain all the required information; 1801 et seq., EFPs requested under the excluded from the requirement to that the activities to be authorized under Atlantic Coastal Act need to be prepare an environmental assessment or the EFP would be consistent with the addressed in the same manner as EFPs environmental impact statement. goals and objectives of the Atlantic requested under the Magnuson-Stevens weakfish fishery under the Atlantic Act, and regulations at 50 CFR 600.745 Written comments or requests for a Coastal Fisheries Cooperative concerning scientific research activity, public hearing on this application Management Act (Atlantic Coastal Act); exempted fishing, and exempted should be mailed to the Chief, Permits, and that the applications warrant educational activity. Conservation and Education Division, further consideration. Currently, weakfish regulations at 50 F/PR1, Office of Protected Resources, A draft environmental assessment CFR 697.7(a)(5) prohibit any person NMFS, 1315 East-West Highway, Room (EA) that addresses the impacts of the from fishing with a flynet in the 13705, Silver Spring, MD 20910. Those proposed study associated with the EFP Exclusive Economic Zone (EEZ) off individuals requesting a hearing should applications has been prepared. This North Carolina in a closed area south of set forth the specific reasons why a document requests public input in the Cape Hatteras, as defined by this hearing on this particular request would form of written comments to NMFS regulation. This area was closed to be appropriate. relative to the issuance of EFPs to the flynetters in order to reduce the harvest Comments may also be submitted by State of North Carolina. If granted, these of the recovering weakfish stock, facsimile at (301)713–0376, provided EFPs would authorize a flynet especially the harvest of juvenile characterization study to be conducted the facsimile is confirmed by hard copy weakfish known to congregate in the by the North Carolina Division of submitted by mail and postmarked no closed area. In addition, 50 CFR Marine Fisheries in a closed area south 697.7(a)(1) and (2) prohibited fishing later than the closing date of the of Cape Hatteras. Two participating for, harvesting, possessing, or retaining comment period. Please note that flynet vessels, each with its own EFP weakfish less than 12 inches (30.5 cm), comments will not be accepted by e- and observer aboard, would conduct up in the EEZ. Further, 50 CFR 697.7(a)(3) mail or by other electronic media. to a total of 18 trips over each of two prohibited fishing for weakfish Dated: November 21, 2002. seasons, from 15 January through 1 coastwide in the EEZ with a minimum Eugene T. Nitta, April, in 2003 and 2004, south of Cape mesh size less than 3 1/4–inch (8.3 cm) Acting Chief, Permits, Conservation and Hatteras, for a maximum of 36 trips. A square stretched mesh (as measured Education Division, Office of Protected third vessel would be deployed in the between the centers of opposite knots Resources, National Marine Fisheries Service. closed area for up to three (3) trips at the when stretched taut) or 3 3/4–inch (9.5 [FR Doc. 02–30134 Filed 11–26–02; 8:45 am] beginning of the study to test three cm) diamond stretched mesh for trawls. proto-type turtle excluder devices The North Carolina Division of BILLING CODE 3510–22–S (TEDs) developed by NMFS. An Marine Fisheries (NCDMF) proposes to additional flynet vessel would test the conduct a flynet characterization study, proto-type TEDs in the area north of in cooperation with NMFS, with two Cape Hatteras, where flynets are flynet vessels using mesh at least as permitted to operate. This vessel would large as defined in the Atlantic States not require an EFP. Marine Fisheries Commission’s VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70936 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices (Commission) Weakfish Fishery 1997 BO (that is, 10 or 1, in any one through annual and final reports that Management Plan Amendment 3 year). would provide maps of the sample areas (Amendment 3), and at 50 CFR Additional terms of the study overlaid with the location of each tow, 697.7(a)(3), to collect information on the proposal relate to sample design or species encountered, total weights, size and species composition of finfish address concerns raised by the numbers, and length frequency caught in modified flynets in the closed Commission’s Weakfish Fishery distributions of selected species. The area. The NCDMF and NMFS would Management Board and its Technical final report would also summarize the assess the effects, including the species Committee. The study would be findings from each year and attempt to and size composition of the catch, of terminated if any cumulative, monthly relate variability in catches and species using larger mesh size nets in the North sample yields juvenile or undersized composition with environmental Carolina flynet fishery if it were to be fish in excess of 10 percent of the total variables. The report would also allowed to resume operations south of catch for that month. If an annual cap summarize all interactions with sea Cape Hatteras. The mesh size used in of 175,000 lbs (79,380 kg) on landings turtles and include a discussion on the the flynet fishery, prior to the 1997 of weakfish taken south of Cape Hatteras use of TEDs in the flynet fishery. closure of this area, was significantly is reached, the study would end for that The EFPs would exempt up to three smaller than is currently required. This year. vessels from the requirements of the information would permit NCDMF, the The EFP application states that Atlantic weakfish regulations according Commission, and NMFS to properly catches made by the vessel that tests to the provisions at 50 CFR 600.745 and assess the potential impacts of TEDs south of Cape Hatteras would be 697.22, as follows: (1) Prohibiting of the reopening the closed area to flynets with counted towards this cap. However, use of flynets in the closed area of the larger minimum-mesh sizes after based on a request by NCDMF, NMFS is EEZ off North Carolina as defined at management goals have been met and reconsidering this condition of the EFP. § 697.7(a)(5); and (2) fishing for, the stock is declared to be restored. The TED work is separate from the harvesting, possession or retention of flynet characterization study and In addition, this study would address any weakfish less than 12 inches (30.5 NCDMF does not want to compromise concerns about the take of endangered cm) in total length from the EEZ as the continuation and completion of that sea turtles by flynet gear. A 1997 NMFS specified at § 697.7(a)(1) and (2) for data study, if during development and Biological Opinion (BO) determined collection purposes. testing, the TEDs result in large amounts The draft EA prepared for the that the flynet fishery may adversely of bycatch. Multiple tows made on a proposed flynet characterization study affect, but is not likely to jeopardize the single trip would be spatially separated found that no significant environmental continued existence of endangered sea by at least one (1) nautical mile to impacts would result from the proposed turtles. An informal Endangered Species insure maximum geographic coverage action. Act (ESA) section 7 consultation on this and prevent directing effort on one proposal determined that the study Dated: November 22, 2002. specific school of fish. The entire Richard W. Surdi, would be in compliance with the 1997 contents of each tow on an individual BO, and that the study should include Acting Director, Office of Sustainable trip would be kept separate and Fisheries, National Marine Fisheries Service. testing of TEDs previously developed by processed separately at the dock. NMFS [FR Doc. 02–30131 Filed 11–26–02; 8:45 am] NMFS as part of the reasonable and observers would be required on each prudent measures of the 1997 BO. A trip to monitor fishing activity and to BILLING CODE 3510–22–S third flynet vessel would operate in the record global positioning system (GPS) closed area, at the beginning of the coordinates for each tow, interactions study, and would carry NMFS gear with any threatened or endangered DEPARTMENT OF ENERGY technology experts who would test species, tow time, depth, water Notice of Wetlands Involvement for the several proto-type TEDs, developed by temperature, air temperature, date, and Transfer of Land at the Miamisburg NMFS, to determine feasibility and time. NMFS observers would also Closure Project effectiveness of these devices in flynets. record net dimensions and design An additional vessel would also test the specifications to document successful AGENCY: Department of Energy (DOE), proto-type TEDs in the area north of designs, if a net is found to effectively Ohio Field Office, Miamisburg Closure Cape Hatteras. avoid catches of undersized fish. Project (MCP). The two vessels that test the TEDs In order to determine the ability of ACTION: Notice of wetlands involvement. would follow protocols determined by these flynets to minimize bycatch of the NMFS gear experts deployed for that undersized fish, unculled catches would SUMMARY: This is to give notice of DOE’s portion of the study. If an effective TED be sorted by tow for species proposal to transfer ownership of is found, the two vessels in the flynet composition and weight by market approximately 57 acres of property of characterization study would be category, and sub-samples would be the MCP site, located approximately ten equipped with a TED of the proper measured for length frequency. (10) miles southwest of Dayton, Ohio. design. If NMFS determined that TEDs Regulatory discards, including sub-legal The ownership of the subject property can not effectively be deployed in weakfish, and non-marketable species, would be transferred to a non-Federal flynets, other measures (e.g., reduced would be sorted, weighed and a sub- entity. A small portion (approximately tow time) would be used for the sample would be taken for length 0.03 acre) of the property is classified as remainder of the study to reduce frequency. These fish would be properly wetlands (i.e., those areas that are impacts on turtles and may be disposed of, and would not be sold. ESA inundated by surface or groundwater considered for implementation by all and other protected species would be with a frequency sufficient to support, vessels using flynets. In any case, the handled as required by law; observers and under normal circumstances does study would be terminated if takes would record and report all discarded or would support, a prevalence of (lethal or non-lethal) of loggerhead or red drum and striped bass. vegetative or aquatic life that requires Kemp’s ridley sea turtles exceeded one Analysis of the study data would be saturated or seasonally saturated soil half of the numbers (20 and 2) allowed coordinated by NCDMF and NMFS staff conditions for growth and in the Incidental Take Statement of the and the Commission would be briefed reproduction). In accordance with 10 VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70937 CFR 1022.5(d), DOE would identify DEPARTMENT OF ENERGY electronic filings. See 18 CFR those uses of a wetland resource that are 385.2001(a)(1)(iii) and the instructions restricted under Federal, state and local Federal Energy Regulatory on the Commission’s web site under the wetlands regulations, and would make Commission ‘‘e-Filing’’ link. the future property owner aware of [Docket No. RP03–81–000] Linwood A. Watson, Jr., those restricted uses. Eastern Shore Natural Gas Company; Deputy Secretary. DATES: Written comments on the Notice of Proposed Changes in FERC [FR Doc. 02–30214 Filed 11–26–02; 8:45 am] proposed action must be received by the Gas Tariff BILLING CODE 6717–01–P DOE at the following address on or before December 12, 2002. November 21, 2002. DEPARTMENT OF ENERGY ADDRESSES: For further information on Take notice that on November 19, the proposed action, including a site 2002, Eastern Shore Natural Gas Company (ESNG) tendered for filing as Federal Energy Regulatory map and/or a copy of the Wetlands Commission Assessment, contact: Ms. Sue Smiley, part of its FERC Gas Tariff, Second U.S. Department of Energy, Miamisburg Revised Volume No. 1, certain revised Closure Project, P.O. Box 66, tariff sheets listed in Appendix A to the [Docket No. CP03–12–000] filing, proposed an effective date of Miamisburg, OH 45343–0066, Phone: Egan Hub Partners, L.P.; Notice of 937–865–3984. November 1, 2002. ESNG states that the purpose of this Application FURTHER INFORMATION: For further instant filing is to track rate changes November 21, 2002. information on general DOE wetland attributable to storage services and floodplain environmental review purchased from Transcontinental Gas Take notice that on November 5, requirements, contact: Ms. Carol Pipe Line Corporation (Transco) under 2002, Egan Hub Partners, L.P. (Egan Borgstrom, Director, Office of NEPA its Rate Schedules GSS and LSS. The Hub), 5400 Westheimer Court, Houston, Policy and Compliance, EH–42, U.S. costs of the above referenced storage Texas 77056, filed in the above Department of Energy, 1000 services comprise the rates and charges referenced docket an application, Independence Ave., SW., Washington, payable under ESNG’s Rate Schedules pursuant to Section 7(c) of the Natural DC 20585, Phone: 202–586–4600 or 1– GSS and LSS, respectively. This Gas Act (NGA) and the Commission’s 800–472–2756. tracking filing is being made pursuant to regulations thereunder, for a certificate Section 3 of ESNG’s Rate Schedules GSS of public convenience and necessity SUPPLEMENTARY INFORMATION: The and LSS. authorizing the expansion of its existing proposed action would support ultimate ESNG states that copies of the filing storage facility at the Jennings Salt disposition of the MCP site. The MCP have been served upon its jurisdictional Dome in Acadia Parish, Louisiana (Egan site has been determined to be excess to customers and interested State Storage Facility Expansion). This DOE’s long-term needs. This decision is Commissions. application is on file with the supported by the Nonnuclear Any person desiring to be heard or to Commission and open to public Consolidation Environmental protest said filing should file a motion inspection. This filing is available for Assessment (DOE/EA–0792) and to intervene or a protest with the review at the Commission in the Public associated Finding of No Significant Federal Energy Regulatory Commission, Reference Room or may be viewed on Impact (FONSI) dated September 14, 888 First Street, NE., Washington, DC the Commission’s website at http:// 1993, and the Memorandum of 20426, in accordance with Sections www.ferc.gov using the ‘‘FERRIS’’ link. Understanding (MOU) between the DOE 385.214 or 385.211 of the Commission’s Enter the docket number excluding the Defense Programs, Environmental Rules and Regulations. All such motions last three digits in the docket number Management, and Nuclear Energy or protests must be filed in accordance field to access the document. For Programs dated August 1, 1995. In order with Section 154.210 of the assistance, please contact FERC Online to meet the programmatic need to Commission’s Regulations. Protests will Support at disposition land determined to be be considered by the Commission in [email protected] or toll- excess to DOE’s needs, ownership of the determining the appropriate action to be free at (866)208–3676, or for TTY, MCP site will be transferred to a non- taken, but will not serve to make contact (202)502–8659. Federal entity. The MCP property will protestants parties to the proceedings. Currently, Egan Hub has three salt be transferred in phases, since certain Any person wishing to become a party caverns at its storage facility. Egan Hub parcels of land are still in use by DOE must file a motion to intervene. This seeks authorization to expand its or are not yet suitable for transfer. This filing is available for review at the existing salt dome storage facility notice addresses that portion of the Commission in the Public Reference working gas capacity from 16.0 Bcf to ‘‘Phase I’’ parcel of land at the MCP site Room or may be viewed on the 24.0 Bcf and its maximum aggregate which is classified as wetlands. The Commission’s website at http:// operating capacity from 21.0 Bcf to 31.5 subject wetland covers approximately www.ferc.gov using the ‘‘FERRIS’’ link. Bcf. No new surface facilities are 0.03 acre of the Phase I parcel, and it is Enter the docket number excluding the proposed. In addition, Egan Hub states an isolated wetland contained entirely last three digits in the docket number that the proposed increase in operating within the boundaries of the Phase I field to access the document. For capacity will not affect Egan Hub’s parcel. Assistance, please contact FERC Online existing maximum deliverability Support at capability of 1,500 MMcfd, nor will it Issued in Miamisburg, Ohio, on November change the existing maximum injection 19, 2002. [email protected] or toll- free at (866) 208–3676, or TTY, contact capability of 800 MMcfd. Jack R. Craig, (202) 502–8659. Comments, protests and Egan Hub also proposes to continue Acting Manager, Ohio, Field Office. interventions may be filed electronically charging market-based rates. As a result, [FR Doc. 02–30094 Filed 11–26–02; 8:45 am] via the Internet in lieu of paper. The Egan Hub requests waivers of certain of BILLING CODE 6450–01–P Commission strongly encourages the Commission’s regulations that are VerDate 0ct<31>2002 18:11 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70938 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices required when an applicant seeks cost- environmental review process. for filing a revised fuel factor for its based rate authority. Environmental commenters will not be Enogex System for Fuel Year 2003 as Egan Hub states that it requests required to serve copies of filed calculated under the terms of Enogex’s approval of its application on or before documents on all other parties. filed fuel tracker. Enogex seeks an January 22, 2003, in order to meet the However, the non-party commenters effective date of January 1, 2003. anticipated future market needs of its will not receive copies of all documents customers. Enogex states that it is serving notice filed by other parties or issued by the of the filing and the revised fuel Any questions regarding this Commission (except for the mailing of percentage on all current shippers. application should be directed to Steven environmental documents issued by the E. Tillman, General Manager— Commission) and will not have the right Pursuant to section 284.123(b)(2)(ii), Regulatory Affairs, Egan Hub Partners, to seek court review of the if the Commission does not act within L.P., P.O. Box 1642, Houston, Texas Commission’s final order. 150 days of the date of this filing, the 77251–1642 at (713) 627–5113 or by fax The Commission may issue a rates will be deemed to be fair and at (713) 627–5947. preliminary determination on non- equitable and not in excess of an There are two ways to become environmental issues prior to the amount which interstate pipelines involved in the Commission’s review of completion of its review of the this project. First, any person wishing to would be permitted to charge for similar environmental aspects of the project. obtain legal status by becoming a party transportation service. The Commission This preliminary determination may, prior to the expiration of the 150 to the proceedings for this project typically considers such issues as the should, on or before December 11, 2002, day period, extend the time for action or need for the project and its economic institute a proceeding to afford parties file with the Federal Energy Regulatory effect on existing customers of the Commission, 888 First Street, NE., an opportunity for written comments applicant, on other pipelines in the area, and for the oral presentation of views, Washington, DC 20426, a motion to and on landowners and communities. intervene in accordance with the data, and arguments. For example, the Commission considers requirements of the Commission’s rules the extent to which the applicant may Any person desiring to participate in of practice and procedure (18 CFR need to exercise eminent domain to this rate proceeding must file a motion 385.214 or 385.211) and the Regulations obtain rights-of-way for the proposed to intervene or protest with the Federal under the NGA (18 CFR 157.10). A project and balances that against the Energy Regulatory Commission, 888 person obtaining party status will be non-environmental benefits to be First Street, NE., Washington DC 20426, placed on the service list maintained by provided by the project. Therefore, if a in accordance with sections 385.214 or the Secretary of the Commission and person has comments on community 385.211 of the Commission’s rules and will receive copies of all documents filed by the applicant and by all other and landowner impacts from this regulations. All such motions or protests parties. A party must submit 14 copies proposal, it is important either to file must be filed with the Secretary of the of filings made with the Commission comments or to intervene as early in the Commission on or before December 6, and must mail a copy to the applicant process as possible. 2002. Protests will be considered by the The Commission strongly encourages and to every other party in the Commission in determining the electronic filings of comments, protests, proceeding. Only parties to the appropriate action to be taken, but will and interventions via the internet in lieu proceeding can ask for court review of not serve to make protestants parties to of paper. See 18 CFR 385.2001(a)(1)(iii) Commission orders in the proceeding. the proceedings. Any person wishing to However, a person does not have to and the instructions on the become a party must file a motion to Commission’s web site under the ‘‘e- intervene in order to have comments intervene. This petition for rate considered. The second way to Filing’’ link. If the Commission decides to set the approval is available for review at the participate is by filing with the Commission in the Public Reference Secretary of the Commission, as soon as application for a formal hearing before an Administrative Law Judge, the Room or may be viewed on the possible, an original and two copies of Commission’s website at http:// comments in support of or in opposition Commission will issue another notice describing that process. At the end of www.ferc.gov using the ‘‘FERRIS’’ link. to this project. The Commission will Enter the docket number excluding the consider these comments in the Commission’s review process, a last three digits in the docket number determining the appropriate action to be final Commission order approving or taken, but the filing of a comment alone denying a certificate will be issued. field to access the document. For assistance, please call FERC Online will not serve to make the filer a party Linwood A. Watson, Jr., to the proceeding. The Commission’s Support at [email protected] or Deputy Secretary. toll-free at (866) 208–3676, or for TTY, rules require that persons filing [FR Doc. 02–30205 Filed 11–26–02; 8:45 am] comments in opposition to the project (202) 502–8659. Comments, protests and provide copies of their protests only to BILLING CODE 6717–01–P interventions may be filed electronically the party or parties directly involved in via the Internet in lieu of paper. The the protest. DEPARTMENT OF ENERGY Commission strongly encourages Persons who wish to comment only electronic filings.See 18 CFR on the environmental review of this Federal Energy Regulatory 385.2001(1)(iii) and the instructions on project should submit an original and Commission the Commission’s web site under the ‘‘e- two copies of their comments to the Filing’’ link. Secretary of the Commission. [Docket No. PR03–2–000] Linwood A. Watson, Jr., Environmental commenters will be Enogex Inc.; Notice of Petition for Rate placed on the Commission’s Approval Deputy Secretary. environmental mailing list, will receive [FR Doc. 02–30208 Filed 11–26–02; 8:45 am] copies of the environmental documents, November 21, 2002. BILLING CODE 6717–01–P and will be notified of meetings Take notice that on November 15, associated with the Commission’s 2002, Enogex Inc. (Enogex) submitted VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70939 DEPARTMENT OF ENERGY the Commission’s web site under the ‘‘e- filed no more than sixty and at least Filing’’ link. seven days before the proposed effective Federal Energy Regulatory date. FGT states that the instant filing Linwood A. Watson, Jr., Commission comports with these provisions and Deputy Secretary. FGT has posted notice of the flex [Docket No. PR03–3–000] [FR Doc. 02–30209 Filed 11–26–02; 8:45 am] adjustment prior to the instant filing. BILLING CODE 6717–01–P Any person desiring to be heard or to Enogex Inc.; Notice of Petition for Rate protest said filing should file a motion Approval to intervene or a protest with the DEPARTMENT OF ENERGY November 21, 2002. Federal Energy Regulatory Commission, Take notice that on November 15, Federal Energy Regulatory 888 First Street, NE., Washington, DC 2002, Enogex Inc. (Enogex) submitted Commission 20426, in accordance with Sections for filing a revised fuel factor for its Palo 385.214 or 385.211 of the Commission’s Duro System for Fuel Year 2003 as [Docket No. RP03–80–000] Rules and Regulations. All such motions or protests must be filed in accordance calculated under the terms of Enogex’s Florida Gas Transmission Company; filed fuel tracker. with Section 154.210 of the Notice of Proposed Changes in FERC Commission’s Regulations. Protests will Enogex seeks an effective date of Gas Tariff January 1, 2003. Enogex states that it is be considered by the Commission in serving notice of the filing and the November 21, 2002. determining the appropriate action to be revised fuel percentage on all current Take notice that on November 19, taken, but will not serve to make shippers. 2002, Florida Gas Transmission protestants parties to the proceedings. Pursuant to section 284.123(b)(2)(ii), Company (FGT) tendered for filing to Any person wishing to become a party if the Commission does not act within become part of its FERC Gas Tariff, must file a motion to intervene. This 150 days of the filing date of Enogex Third Revised Volume No. 1, the filing is available for review at the petition, Enogex proposed maximum following tariff sheets, effective Commission in the Public Reference rates for firm and interruptible storage December 1, 2002: Room or may be viewed on the services will be deemed to be fair and Commission’s website at http:// Fifty-Fifth Revised Sheet No. 8A www.ferc.gov using the ‘‘FERRIS’’ link. equitable. The Commission may within Forty-Seventh Revised Sheet No. 8A.01 such 150 day period extend the time for Forty-Seventh Revised Sheet No. 8A.02 Enter the docket number excluding the action or institute a proceeding in Fifth Revised Sheet No. 8A.04 last three digits in the docket number which all interested parties will be Fiftieth Revised Sheet No. 8B field to access the document. For afforded an opportunity for written Forty-Third Revised Sheet No. 8B.01 Assistance, please contact FERC Online comments and the oral presentation of First Revised Sheet No. 8B.02 Support at views, data, and arguments. FGT states that in Docket No. RP02– [email protected] or toll- Any person desiring to participate in 513–000 filed on August 29, 2002, FGT free at (866) 208–3676, or TTY, contact this rate proceeding must file a motion filed to establish a Base Fuel (202) 502–8659. Comments, protests and to intervene or protest with the Federal Reimbursement Charge Percentage interventions may be filed electronically Energy Regulatory Commission, 888 (‘‘Base FRCP’’) of 3.01 % to become via the Internet in lieu of paper. The First Street, NE., Washington DC 20426, effective for the six-month Winter Commission strongly encourages in accordance with sections 385.214 or Period beginning October 1, 2002. In the electronic filings. See 18 CFR 385.211 of the Commission’s rules and instant filing, FGT is filing a flex 385.2001(a)(1)(iii) and the instructions regulations. All such motions or protests adjustment of (0.26%) to be effective on the Commission’s web site under the must be filed with the Secretary of the December 1, 2002, which, when ‘‘e-Filing’’ link. Commission on or before December 6, combined with the Base FRCP of 3.01% Linwood A. Watson, Jr., 2002. Protests will be considered by the results in an Effective Fuel Deputy Secretary. Commission in determining the Reimbursement Charge Percentage of [FR Doc. 02–30213 Filed 11–26–02; 8:45 am] appropriate action to be taken, but will 2.75%. FGT states that this filing is BILLING CODE 6717–01–P not serve to make protestants parties to necessary because FGT is currently the proceedings. Any person wishing to experiencing lower fuel usage than is become a party must file a motion to being recovered in the currently DEPARTMENT OF ENERGY intervene. This petition for rate effective FRCP of 3.01%. Decreasing the approval is available for review at the Effective FRCP will reduce FGT’s Federal Energy Regulatory Commission in the Public Reference overrecovery of fuel and reduce the Unit Commission Room or may be viewed on the Fuel Surcharge in the next Winter [Docket No. PR03–4–000] Commission’s website at http:// Period. www.ferc.gov using the ‘‘FERRIS’’ link. FGT states that the tariff sheets listed Lee 8 Storage Partnership; Notice of Enter the docket number excluding the above are being filed pursuant to Petition for Rate Approval last three digits in the docket number Section 27.A.2.b of the General Terms field to access the document. For and Conditions of FGT’s Tariff, which November 21, 2002. assistance, please call FERC Online provides for flex adjustments to the Base Take notice that on November 15, Support at [email protected] or FRCP. Pursuant to the terms of Section 2002, Lee 8 Storage Partnership (Lee 8) toll-free at (866) 208–3676, or for TTY, 27.A.2.b, a flex adjustment shall become pursuant to Section 284.123(b)(2) of the (202) 502–8659. Comments, protests and effective without prior FERC approval Commission’s Regulations, filed a interventions may be filed electronically provided that such flex adjustment does petition requesting that the Commission via the Internet in lieu of paper. The not exceed 0.50%, is effective at the approve its rates pursuant to Section Commission strongly encourages beginning of a month, is posted on 311(a)(2) of the Natural Gas Policy Act electronic filings.See 18 CFR FGT’s EBB at least five working days of 1978. Lee 8 proposes system-wide 385.2001(1)(iii) and the instructions on prior to the nomination deadline, and is maximum rates of $4.8636 per Dt of VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70940 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices deliverability and $0.0486 per Dt of DEPARTMENT OF ENERGY Comment Date: November 29, 2002. capacity. In addition, Lee 8 states that Linwood A. Watson, Jr., it will charge 0.59% of the injected Federal Energy Regulatory Deputy Secretary. volumes and 0.59% of the withdrawal Commission volumes as an allowance for compressor [FR Doc. 02–30206 Filed 11–26–02; 8:45 am] BILLING CODE 6717–01–P fuel and lost-and-unaccounted-for gas [Docket No. EL03–25–000] on Lee 8’s system. Lee 8’s petition states that Lee 8 is a NSTAR Electric & Gas Corporation, et DEPARTMENT OF ENERGY Hinshaw pipeline exempt from al. v. New England Power Pool; Notice of Complaint Commission regulation under Section Federal Energy Regulatory Commission 1(c) of the NGA, with facilities located November 21, 2002. wholly within the state of Michigan. [Docket No. RP03–32–001] Take notice that on November 19, Pursuant to Section 284.123(b)(2)(ii), 2002, NSTAR Electric & Gas if the Commission does not act within Stingray Pipeline Company, L.L.C.; Corporation, Central Vermont Public Notice of Tariff Filing 150 days of the filing date of Lee 8’s Service Corporation, PPL EnergyPlus, petition, Lee 8’s proposed maximum LLC, The United Illuminating Company, November 21, 2002. rates for firm and interruptible storage UNITIL Power Corp., and Fitchburg Gas Take notice that on November 14, services will be deemed to be fair and and Electric Light Company filed a 2002, Stingray Pipeline Company, L.L.C. equitable. The Commission may within Complaint against the New England (Stingray) tendered for filing as part of such 150 day period extend the time for Power Pool. The complaint alleges that its FERC Gas Tariff, Third Revised action or institute a proceeding in the NEPOOL Participants Committee Volume No. 1, the following tariff sheet which all interested parties will be failed to restore credits relating to the to become effective on December 1, afforded an opportunity for written capability on the Hydro Quebec 2002. comments and the oral presentation of Interconnection consistent with prior Substitute First Revised Sheet No. 186 views, data, and arguments. Commission Orders. Stingray states that this filing is being Any person desiring to participate in Copies of said filing have been served made to address the subject of an out- this rate proceeding must file a motion upon NEPOOL Participants and the ISO of-time protest filed by the Indicated to intervene or protest with the Federal New England, Inc. Shippers in this proceeding on Energy Regulatory Commission, 888 Any person desiring to intervene or to November 12, 2002. First Street, NE., Washington DC 20426, Stingray states that a copy of this protest this filing should file with the in accordance with Sections 385.214 or filing has been served upon its Federal Energy Regulatory Commission, 385.211 of the Commission’s Rules and customers. 888 First Street, NE., Washington, DC Regulations. All such motions or Any person desiring to protest said 20426, in accordance with rules 211 and protests must be filed with the Secretary filing should file a protest with the 214 of the Commission’s rules of Federal Energy Regulatory Commission, of the Commission on or before practice and procedure (18 CFR 385.211 December 6, 2002. Protests will be 888 First Street, NE., Washington, DC and 385.214). Protests will be 20426, in accordance with Section considered by the Commission in considered by the Commission in determining the appropriate action to be 385.211 of the Commission’s Rules and determining the appropriate action to be Regulations. All such protests must be taken, but will not serve to make taken, but will not serve to make protestants parties to the proceedings. filed in accordance with Section protestants parties to the proceeding. 154.210 of the Commission’s Any person wishing to become a party Any person wishing to become a party must file a motion to intervene. This Regulations. Protests will be considered must file a motion to intervene. All such by the Commission in determining the petition for rate approval is available for motions or protests should be filed on review at the Commission in the Public appropriate action to be taken, but will or before the comment date, and, to the not serve to make protestants parties to Reference Room or may be viewed on extent applicable, must be served on the the Commission’s website at http:// the proceedings. This filing is available applicant and on any other person for review at the Commission in the www.ferc.gov using the ‘‘FERRIS’’ link. designated on the official service list. Enter the docket number excluding the Public Reference Room or may be This filing is available for review at the viewed on the Commission’s website at last three digits in the docket number Commission or may be viewed on the http://www.ferc.gov using the ‘‘FERRIS’’ field to access the document. For Commission’s web site at http:// link. Enter the docket number excluding Assistant, please call FERC Online www.ferc.gov, using the ‘‘FERRIS’’ link. the last three digits in the docket Support at [email protected] or Enter the docket number excluding the number field to access the document. toll-free at (866) 208–3676, or for TTY, last three digits in the docket number For Assistance, please contact FERC (202) 502–8659. Comments, protests and filed to access the document. For Online Support at interventions may be filed electronically assistance, please contact FERC Online [email protected] or toll- via the Internet in lieu of paper. The Support at free at (866) 208–3676, or TTY, contact Commission strongly encourages [email protected] or toll- (202) 502–8659. The Commission electronic filings.See 18 CFR free at (866)208–3676, or for TTY, strongly encourages electronic filings. 385.2001(1)(iii) and the instructions on contact (202)502–8659. Protests and See 18 CFR 385.2001(a)(1)(iii) and the the Commission’s web site under the ‘‘e- interventions may be filed electronically instructions on the Commission’s web Filing’’ link. via the Internet in lieu of paper; see 18 site under the ‘‘e-Filing’’ link. CFR 385.2001(a)(1)(iii) and the Linwood A. Watson, Jr., instructions on the Commission’s web Linwood A. Watson, Jr., Deputy Secretary. site under the ‘‘e-Filing’’ link. The Deputy Secretary. [FR Doc. 02–30210 Filed 11–26–02; 8:45 am] Commission strongly encourages [FR Doc. 02–30212 Filed 11–26–02; 8:45 am] BILLING CODE 6717–01–P electronic filings. BILLING CODE 6717–01–P VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70941 DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY 3. The Empire District Electric Company Federal Energy Regulatory Federal Energy Regulatory [Docket No. ER03–167–000] Commission Commission Take notice that on November 18, [Docket No. EC03–18–000, et al.] 2002, The Empire District Electric [Docket No. RP02–132–004] Company (Empire) submitted a revised Athens Generating Company, L.P., et attachment C to its proposal to cancel Viking Gas Transmission Company; al.; Electric Rate and Corporate Filings parts of its Open Access Transmission Notice of Compliance Filing November 20, 2002. Tariff (OATT) and to substitute an Ancillary Services Form of Agreement, November 21, 2002. The following filings have been made which was filed on November 6, 2002. with the Commission. The filings are Take notice that on November 18, The revised attachment C contains a list listed in ascending order within each 2002 Viking Gas Transmission Company of entities to be served with the docket classification. (Viking) tendered for filing as part of its proposal and should replace the version FERC Gas Tariff, First Revised Volume 1. Athens Generating Company, L.P.; of attachment C that was initially filed No. 1, the tariff sheets listed on Covert Generating Company, LLC; on November 6, 2002. As Empire no Appendix A to the filing to become Harquahala Generating Company, LLC; longer provides transmission under its effective July 1, 2002 and the tariff Millennium Power Partners, L.P. existing OATT, its proposed termination sheets listed on Appendix B to the filing [Docket No. EC03–18–000] of the Empire OATT will not impact any to become effective October 1, 2002 customers. Empire requests waiver to subject to the conditions set forth in Take notice that on November 15, allow its proposal to take effect on Viking’s filing. 2002, Athens Generating Company, L.P., January 6, 2003, as initially requested. Viking states that the purpose of this Covert Generating Company, LLC, Comment Date: December 9, 2002. filing is to comply with the November Harquahala Generating Company, LLC, and Millennium Power Partners, L.P., 4. California Independent System 8, 2002 Letter Order issued in Docket Operator Corporation No. RP02–132–000. each of which is an indirect, wholly- owned subsidiary of PG&E National [Docket No. ER03–187–000] Viking states that copies of this filing Energy Group, Inc. (PG&E NEG) (and have been served on all parties Take notice that on November 18, which may be referred to hereafter 2002, the California Independent designated on the official service list in individually as Applicant or jointly as this proceeding, on all Viking’s System Operator Corporation (ISO), Applicants) tendered for filing, pursuant tendered for filing a Meter Service jurisdictional customers and to affected to section 203 of the Federal Power Act, state regulatory commissions. Agreement between the ISO and 16 U.S.C. section 824b (2000), and part Termoelee´ctrica de Mexicali S. de R.L. Any person desiring to protest said 33 of the Commission’s regulations, 18 de C.V. (TDM) for acceptance by the filing should file a protest with the CFR part 33 (2002), an application for Commission. Federal Energy Regulatory Commission, authorization to dispose of The ISO states that this filing has been 888 First Street, NE., Washington, DC jurisdictional facilities. More served on TDM and the California 20426, in accordance with Section specifically, PG&E NEG seeks approval Public Utilities Commission. The ISO is 385.211 of the Commission’s Rules and to effectuate an internal corporate requesting waiver of the 60-day notice Regulations. All such protests must be reorganization with respect to some or requirement to allow the Meter Service filed in accordance with Section all of the Applicants and then transfer Agreement to be made effective 154.210 of the Commission’s all of its ownership interests in the November 14, 2002. Regulations. Protests will be considered Applicants to one or more existing or to- Comment Date: December 9, 2002. by the Commission in determining the be-formed companies that are direct or appropriate action to be taken, but will indirect wholly-owned subsidiaries of 5. Aquila, Inc. not serve to make protestants parties to the lenders to the Applicants and/or to [Docket No. ER03–188–000] the proceedings. This filing is available their upstream owners. Take notice that on November 18, for review at the Commission in the Comment Date: December 6, 2002. 2002, Aquila, Inc. (Aquila), filed a Public Reference Room or may be 2. Hermiston Generating Company, L.P. notice of termination of the June 5, viewed on the Commission’s website at 2001, Transmission Service Agreement http://www.ferc.gov using the ‘‘FERRIS’’ [Docket No. ER01–2159–003] for Non-Firm Point-to-Point link. Enter the docket number excluding Take notice that on November 18, Transmission Service between Aquila the last three digits in the docket 2002, Hermiston Generating Company, and El Paso Merchant Energy. Aquila number field to access the document. LP (Applicant), an indirect, wholly- requests that the termination be made For Assistance, please contact FERC owned subsidiary of PG&E National effective on September 30, 2002. Online Support at Energy Group, Inc. (PG&E NEG) Comment Date: December 9, 2002. [email protected] or toll- tendered for filing, information that 6. Aquila, Inc. free at (866) 208–3676, or TTY, contact reflects a departure from the (202) 502–8659. The Commission characteristics relied upon by the [Docket No. ER03–189–000] strongly encourages electronic filings. Commission in approving market-based Take notice that on November 18, See 18 CFR 385.2001(a)(1)(iii) and the pricing. Specifically, Applicant has 2002, Aquila, Inc. (Aquila), filed a instructions on the Commission’s web submitted information concerning a notice of termination of the April 17, site under the ‘‘e-Filing’’ link. potential sale of a portion of the direct 2000, Transmission Service Agreement or indirect upstream ownership of PG&E for Short-Term Firm Point-to-Point Linwood A. Watson, Jr., NEG to a direct or indirect wholly- Transmission Service between Aquila Deputy Secretary. owned subsidiary of Sumitomo and El Paso Merchant Energy. Aquila [FR Doc. 02–30211 Filed 11–26–02; 8:45 am] Corporation. requests that the termination be made BILLING CODE 6717–01–P Comment Date: December 9, 2002. effective on October 19, 2002. VerDate 0ct<31>2002 17:57 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70942 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Comment Date: December 9, 2002. Settlement Agreement and l. Amendment Application: PGE Decommissioning Plan. proposes to: (i) Extend the term of the Standard Paragraph b: Project No.: 477–024. license from November 16, 2004, to Any person desiring to intervene or to c: Date Filed: November 12, 2002. November 16, 2017; (ii) continue protest this filing should file with the d: Applicant: Portland General generation until removal of the Little Federal Energy Regulatory Commission, Electric Company (PGE). Sandy dam in 2008; (iii) implement a 888 First Street, NE., Washington, DC e: Name of Project: Bull Run program of geomorphological and water 20426, in accordance with rules 211 and Hydroelectric Project. quality monitoring continuing until 214 of the Commission’s rules of f: Location: On the Sandy, Little Marmot dam removal; (iv) continue practice and procedure (18 CFR 385.211 Sandy, and Bull Run Rivers, near the operation of the fish ladder and sorting and 385.214). Protests will be Town of Sandy, Clackamas County, facility at Marmot dam until Marmot considered by the Commission in Oregon. The project is located on lands dam removal; and (v) modify the determining the appropriate action to be administered by the Forest Service (Mt. operation of the diversion canal at taken, but will not serve to make Hood National Forest) and the Bureau of Marmot dam to provide protection of protestants parties to the proceeding. Land Management. threatened fish species from November Any person wishing to become a party g. Filed Pursuant to: Federal Power 2004 until November 2007. must file a motion to intervene. All such Act, 16 U.S.C. 791(a)–825(r); Rule 602 of Surrender Application: The Project motions or protests should be filed on the Commission’s Rules of Practice and works include: Marmot dam, located at or before the comment date, and, to the Procedure, 18 CFR 385.602. River Mile (RM) 30 on the Sandy River; extent applicable, must be served on the h: Applicant Contact: Julie A. Keil, a 3.1-mile-long series of canals and applicant and on any other person Director, Hydro Licensing and Water tunnels leading from Marmot dam to the designated on the official service list. Rights, PGE, 121 SW Salmon Street, Little Sandy River just upstream of the This filing is available for review at the Portland, Oregon 97204, 503–464–8864. Little Sandy diversion dam; the Little Sandy diversion dam, located at RM 1.7 Commission or may be viewed on the i. FERC Contact: Alan Mitchnick, on the Little Sandy River; a 2.8-mile- Commission’s web site at http:// 202–502–6074; long box flume leading from the Little www.ferc.gov, using the ‘‘FERRIS’’ link. [email protected]. Sandy diversion dam to the manmade Enter the docket number excluding the j. Cooperating agencies: We are asking forebay, Roslyn Lake; two 1,200 foot last three digits in the docket number federal, state, local, and tribal agencies penstocks; and a powerhouse containing filed to access the document. For with jurisdiction and/or special four generators with a total capacity of assistance, contact FERC Online expertise with respect to environmental 22 megawatts. The powerhouse Support at issues to cooperate with us in the [email protected] or toll- discharges to the Bull Run River 1.5 preparation of the environmental miles above its confluence with the free at (866)208–3676, or for TTY, document. Agencies wishing to request contact (202)502–8659. Protests and Sandy River at RM 18.4. cooperating status should follow the PGE proposes the complete removal interventions may be filed electronically instructions for filing documents via the Internet in lieu of paper; see 18 of both Marmot and the Little Sandy described in item k below. diversion dams, starting in 2007, along CFR 385.2001(a)(1)(iii) and the k. Deadline for filing comments, with the dismantling of their associated instructions on the Commission’s web motions to intervene, and protests and water conveyance structures. In site under the ‘‘e-Filing’’ link. The requests for cooperating agency status: addition, Roslyn Lake would be Commission strongly encourages 60 days from the issuance date of this drained, the powerhouse generating electronic filings. notice. equipment would be disabled, and the Linwood A. Watson, Jr., All documents (original and eight powerhouse structure would be Deputy Secretary. copies) should be filed with: Magalie R. demolished. All PGE-owned lands Salas, Secretary, Federal Energy [FR Doc. 02–30079 Filed 11–26–02; 8:45 am] within the existing project boundary Regulatory Commission, 888 First BILLING CODE 6717–01–P would be conveyed to the Western Street, NE., Washington, DC 20426. Rivers Conservancy once the license is The Commission’s rules of practice surrendered and the project is removed, DEPARTMENT OF ENERGY and procedure require all intervenors and used to protect and conserve fish filing documents with the Commission and wildlife habitat, public access, and Federal Energy Regulatory to serve a copy of that document on recreation opportunities in the Sandy Commission each person whose name appears on the River Basin. Project water rights would official service list for the project. be relinquished and would revert to [Project No. 477–024] Further, if an intervenor files comments instream use. or documents with the Commission Settlement Agreement and Notice of Applications for Amendment relating to the merits of an issue that Decommissioning Plan: PGE filed a of License and Surrender of License may affect the responsibilities of a settlement agreement concerning the and Settlement Agreement and particular resource agency, they must removal of the project. The signatories Decommissioning Plan and Soliciting also serve a copy of the document on include PGE, 10 federal, state, and local Comments, Motions to Intervene, and that resource agency. agencies, and 12 non-governmental Protests Comments, motions to intervene, and organizations. The agreement includes a protests and requests for cooperating decommissioning plan consistent with November 21, 2002. agency status may be filed electronically the applications for amendment of Take notice that the following via the Internet in lieu of paper. The license and surrender. hydroelectric applications have been Commission strongly encourages m. Copies of the applications and filed with the Commission and are electronic filings. See 18 CFR settlement agreement are available for available for public inspection: 385.2001(a)(1)(iii) and the instructions review at the Commission in the Public a: Application Type: Amendment of on the Commission’s web sitehttp:// Reference Room or may be viewed on License, Surrender of License, www.ferc.govunder the ‘‘e-Filing’’ link. the Commission’s website at http:// VerDate 0ct<31>2002 18:11 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70943 www.ferc.gov using the ‘‘FERRIS’’ link. ACTION: Notice of availability. BIA—Debbie McBride, 202–208–3606. Enter the docket number excluding the SUMMARY: The Tribal Solid Waste Dated: November 4, 2002. last three digits in the docket number Robert Springer, field to access the document. For Interagency Workgroup (Workgroup) is Director, Office of Solid Waste. assistance, contact FERC Online soliciting proposals for its fifth year of Support at the Tribal Open Dump Cleanup Project [FR Doc. 02–30116 Filed 11–26–02; 8:45 am] [email protected] or toll- (Cleanup Project). Since FY99, the BILLING CODE 6560–50–P free at 1–866–208–3676, or for TTY, Workgroup has funded approximately (202) 502–8659. A copy is also available $8.8 million in projects. In FY02, the ENVIRONMENTAL PROTECTION for inspection and reproduction at the Interagency Workgroup made AGENCY address in item h above. approximately $2.2 million available to fully or partially fund 27 selected n. Individuals desiring to be included [OPP–2002–0317; FRL–7281–4] projects, for an average of approximately on the Commission’s mailing list should $80,000 a proposal. A similar amount of so indicate by writing to the Secretary Pesticide Products; Registration funding is being projected for FY03. of the Commission. Applications Each of these projects will result in the Anyone may submit comments, a closure or upgrade of one or more open AGENCY: Environmental Protection protest, or a motion to intervene in dumps located on tribal lands. The Agency (EPA). accordance with the requirements of Cleanup Project is part of a federal effort ACTION: Notice. rules of practice and procedure, 18 CFR to help tribes comprehensively address 385.210, .211, .214. In determining the their solid waste needs. The purpose of SUMMARY: This notice announces receipt appropriate action to take, the the Cleanup Project is to assist with of an application to register a pesticide Commission will consider all protests or closing or upgrading tribal high-threat product containing a new active other comments filed, but only those waste disposal sites and providing ingredient not included in any who file a motion to intervene in alternative disposal and integrated solid previously registered products pursuant accordance with the Commission’s waste management. The Workgroup was to the provisions of section 3(c)(4) of the Rules may become a party to the established in April 1998 to coordinate Federal Insecticide, Fungicide, and proceeding. Any comments, protests, or federal assistance to tribes in bringing Rodenticide Act (FIFRA), as amended. motions to intervene must be received their waste disposal sites into DATES: Written comments, identified by on or before the specified comment date compliance with the municipal solid the docket ID number OPP–2002–0317, for the particular application. waste landfill criteria (40 CFR part 258). must be received on or before December Any filings must bear in all capital Current Workgroup members include 27, 2002. letters the title ‘‘COMMENTS,’’ representatives from the U.S. ADDRESSES: Comments may be ‘‘PROTEST,’’ or ‘‘MOTION TO Environmental Protection Agency submitted electronically, by mail, or INTERVENE,’’ as applicable, and the (EPA); the Bureau of Indian Affairs through hand delivery/courier. Follow Project Number of the particular (BIA); the Indian Health Service (IHS); the detailed instructions as provided in application to which the filing refers. A the Bureau of Land Management; the Unit I. of the SUPPLEMENTARY copy of any motion to intervene must departments of Agriculture, Defense, INFORMATION. also be served upon each representative and Housing and Urban Development. FOR FURTHER INFORMATION CONTACT: Geri of the Applicant specified in the Criteria: Eligible recipients of McCann, Registration Division (7505C), particular application. assistance under The Cleanup Project Office of Pesticide Programs, Federal, state, and local agencies are include federally recognized tribes and Environmental Protection Agency, 1200 invited to file comments on the intertribal consortiums. A full Pennsylvania Ave., NW., Washington, described application. A copy of the explanation of the submittal process, the DC 20460–0001; telephone number: application may be obtained by agencies qualifying requirements, and the criteria (703) 605–0716; e-mail address; directly from the applicant. If an agency that will be used to evaluate proposals does not file comments within the time for this project may be found in the [email protected]. specified for filing comments, it will be Request for Proposals package. SUPPLEMENTARY INFORMATION: presumed to have no comments. One DATES: For consideration, proposals I. General Information copy of an agency’s comments must also must be received by close of business on be sent to the Applicant’s January 31, 2003. Proposals postmarked A. Does this Action Apply to Me? representatives. on or before but not received by the You may be potentially affected by Linwood A. Watson, Jr., closing date will not be considered. this action if you are a pesticide Deputy Secretary. Please do not rely solely on overnight manufacturer. Potentially affected mail to meet the deadlines. [FR Doc. 02–30207 Filed 11–26–02; 8:45 am] entities may include, but are not limited FOR FURTHER INFORMATION CONTACT: to: BILLING CODE 6717–01–P Copies of the Request for Proposals Pesticide Manufacturing (NAICS code package may be downloaded from the 32532) Internet at VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70944 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices you or your business may be affected by from the index list in EPA Dockets, the information in the body of your this action, you should carefully system will identify whether the comment. Also include this contact examine the applicability provisions in document is available for viewing in information on the outside of any disk Section II of this notice. If you have any EPA’s electronic public docket. or CD ROM you submit, and in any questions regarding the applicability of Although not all docket materials may cover letter accompanying the disk or this action to a particular entity, consult be available electronically, you may still CD ROM. This ensures that you can be the person listed under FOR FURTHER access any of the publicly available identified as the submitter of the INFORMATION CONTACT. docket materials through the docket comment and allows EPA to contact you facility identified in Unit I.B.1. EPA in case EPA cannot read your comment B. How Can I Get Copies of This intends to work towards providing due to technical difficulties or needs Document and Other Related electronic access to all of the publicly further information on the substance of Information? available docket materials through your comment. EPA’s policy is that EPA 1. Docket. EPA has established an EPA’s electronic public docket. will not edit your comment, and any official public docket for this action For public comments, it is important identifying or contact information under docket identification (ID) number to note that EPA’s policy is that public provided in the body of a comment will OPP–2002–0317. The official public comments, whether submitted be included as part of the comment that docket consists of the documents electronically or in paper, will be made is placed in the official public docket, specifically referenced in this action, available for public viewing in EPA’s and made available in EPA’s electronic any public comments received, and electronic public docket as EPA receives public docket. If EPA cannot read your other information related to this action. them and without change, unless the comment due to technical difficulties Although a part of the official docket, comment contains copyrighted material, and cannot contact you for clarification, the public docket does not include CBI, or other information whose EPA may not be able to consider your Confidential Business Information (CBI) disclosure is restricted by statute. When comment. or other information whose disclosure is EPA identifies a comment containing i. EPA Dockets. Your use of EPA’s restricted by statute. The official public copyrighted material, EPA will provide electronic public docket to submit docket is the collection of materials that a reference to that material in the comments to EPA electronically is is available for public viewing at the version of the comment that is placed in EPA’s preferred method for receiving Public Information and Records EPA’s electronic public docket. The comments. Go directly to EPA Dockets Integrity Branch (PIRIB), Rm. 119, entire printed comment, including the at http://www.epa.gov/edocket, and Crystal Mall #2, 1921 Jefferson Davis copyrighted material, will be available follow the online instructions for Hwy., Arlington, VA. This docket in the public docket. submitting comments. Once in the facility is open from 8:30 a.m. to 4 p.m., Public comments submitted on system, select ‘‘search,’’ and then key in Monday through Friday, excluding computer disks that are mailed or docket ID number OPP–2002–0317. The legalholidays. The docket telephone delivered to the docket will be system is an ‘‘anonymous access’’ number is (703) 305–5805. transferred to EPA’s electronic public system, which means EPA will not 2. Electronic access. You may access docket. Public comments that are know your identity, e-mail address, or this Federal Register document mailed or delivered to the Docket will other contact information unless you electronically through the EPA Internet be scanned and placed in EPA’s provide it in the body of your comment. under the ‘‘Federal Register’’ listings at electronic public docket. Where ii. E-mail. Comments may be sent by http://www.epa.gov/fedrgstr/. practical, physical objects will be e-mail to [email protected], An electronic version of the public photographed, and the photograph will Attention: Docket ID Number OPP– docket is available through EPA’s be placed in EPA’s electronic public 2002–0317. In contrast to EPA’s electronic public docket and comment docket along with a brief description electronic public docket, EPA’s e-mail system, EPA Dockets. You may use EPA written by the docket staff. system is not an ‘‘anonymous access’’ Dockets at http://www.epa.gov/edocket/ system. If you send an e-mail comment to submit or view public comments, C. How and To Whom Do I Submit directly to the docket without going access the index listing of the contents Comments? through EPA’s electronic public docket, of the official public docket, and to You may submit comments EPA’s e-mail system automatically access those documents in the public electronically, by mail, or through hand captures your e-mail address. E-mail docket that are available electronically. delivery/courier. To ensure proper addresses that are automatically Once in the system, select ‘‘search,’’ receipt by EPA, identify the appropriate captured by EPA’s e-mail system are then key in the appropriate docket ID docket ID number in the subject line on included as part of the comment that is number. the first page of your comment. Please placed in the official public docket, and Certain types of information will not ensure that your comments are made available in EPA’s electronic be placed in the EPA Dockets. submitted within the specified comment public docket. Information claimed as CBI and other period. Comments received after the iii. Disk or CD ROM. You may submit information whose disclosure is close of the comment period will be comments on a disk or CD ROM that restricted by statute, which is not marked ‘‘late.’’ EPA is not required to you mail to the mailing address included in the official public docket, consider these late comments. If you identified in Unit I.C.2. These electronic will not be available for public viewing wish to submit CBI or information that submissions will be accepted in in EPA’s electronic public docket. EPA’s is otherwise protected by statute, please WordPerfect or ASCII file format. Avoid policy is that copyrighted material will follow the instructions in Unit I.D. Do the use of special characters and any not be placed in EPA’s electronic public not use EPA Dockets or e-mail to submit form of encryption. docket but will be available only in CBI or information protected by statute. 2. By mail. Send your comments to: printed, paper form in the official public 1. Electronically. If you submit an Public Information and Records docket. To the extent feasible, publicly electronic comment as prescribed in this Integrity Branch (PIRIB), Office of available docket materials will be made unit, EPA recommends that you include Pesticide Programs (OPP), available in EPA’s electronic public your name, mailing address, and an e- Environmental Protection Agency docket. When a document is selected mail address or other contact (7502C), 1200 Pennsylvania Ave., NW., VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70945 Washington, DC, 20460–0001, 7. Make sure to submit your previously registered product pursuant Attention: Docket ID Number OPP– comments by the deadline in this to the provisions of section 3(c)(5) of the 2002–0317. notice. Federal Insecticide, Fungicide, and 3. By hand delivery or courier. Deliver 8. To ensure proper receipt by EPA, Rodenticide Act (FIFRA), as amended. your comments to: Public Information be sure to identify the docket ID number FOR FURTHER INFORMATION CONTACT: and Records Integrity Branch (PIRIB), assigned to this action in the subject Mary Waller, Registration Division Office of Pesticide Programs (OPP), line on the first page of your response. (7505C), Office of Pesticide Programs, Environmental Protection Agency, Rm. You may also provide the name, date, Environmental Protection Agency, 1200 119, Crystal Mall #2, 1921 Jefferson and Federal Register citation. Pennsylvania Ave., NW., Washington, Davis Hwy., Arlington, VA., Attention: II. Registration Application DC 20460–0001; telephone number: Docket ID Number OPP–2002–0317. (703) 308–9354; and e-mail address: Such deliveries are only accepted EPA received an application as [email protected]. during the docket’s normal hours of follows to register a pesticide product SUPPLEMENTARY INFORMATION: operation as identified in Unit I.B.1. containing an active ingredient not included in any previously registered I. General Information D. How Should I Submit CBI To the products pursuant to the provision of Agency? A. Does this Action Apply to Me? section 3(c)(4) of FIFRA. Notice of Do not submit information that you receipt of this application does not You may be potentially affected by consider to be CBI electronically imply a decision by the Agency on the this action if you are an agricultural through EPA’s electronic public docket application. producer, food manufacturer, or or by e-mail. You may claim pesticide manufacturer. Potentially information that you submit to EPA as Product Containing an Active Ingredient affected entities may include, but are CBI by marking any part or all of that not Included in any Previously not limited to: information as CBI (if you submit CBI Registered Products • Crop production (NAICS code 111) on disk or CD ROM, mark the outside File symbol: 56228–GU. Applicant: • Animal production (NAICS code of the disk or CD ROM as CBI and then United States Department of 112) • identify electronically within the disk or Agriculture, Animal Plant and Health Food manufacturing (NAICS code 311) CD ROM the specific information that is Inspection Service, 4700 River Road, • CBI). Information so marked will not be Unit 152, Riverdale, MD 20737. Product Pesticide manufacturing (NAICS disclosed except in accordance with name: Acetaminophen For Brown code 32532) procedures set forth in 40 CFR part 2. Treesnake Control. Product type: This listing is not intended to be In addition to one complete version of Pesticide. Active ingredient: Contains exhaustive, but rather provides a guide the comment that includes any 72.7% of the new active ingredient for readers regarding entities likely to be information claimed as CBI, a copy of acetaminophen. Proposed classification/ affected by this action. Other types of the comment that does not contain the Use: For control and reduction of brown entities not listed in this unit could also information claimed as CBI must be treesnake abundance on Guam and the be affected. The North American submitted for inclusion in the public Northern Mariana Islands and to protect Industrial Classification System docket and EPA’s electronic public against brown treesnakes being exported (NAICS) codes have been provided to docket. If you submit the copy that does to Hawaii or the Continental United assist you and others in determining not contain CBI on disk or CD ROM, States as hitchhikers in cargo. whether this action might apply to mark the outside of the disk or CD ROM certain entities. If you have any clearly that it does not contain CBI. List of Subjects questions regarding the applicability of Information not marked as CBI will be Environmental protection, Pesticides this action to a particular entity, consult included in the public docket and EPA’s and pest. the person listed under FOR FURTHER INFORMATION CONTACT. electronic public docket without prior Dated: November 18, 2002. notice. If you have any questions about Debra Edwards, B. How Can I Get Copies of This CBI or the procedures for claiming CBI, Acting Director, Registration Division, Office Document and Other Related please consult the person listed under of Pesticide Programs. Information? FOR FURTHER INFORMATION CONTACT. [FR Doc. 02–30122 Filed 11–26–02; 8:45 am] 1. Docket. EPA has established an E. What Should I Consider as I Prepare BILLING CODE 6560–50–S official public docket for this action My Comments for EPA? under docket identification (ID) number You may find the following OPP–2002–0310. The official public suggestions helpful for preparing your ENVIRONMENTAL PROTECTION docket consists of the documents comments: AGENCY specifically referenced in this action, any public comments received, and 1. Explain your views as clearly as [OPP–2002–0310; FRL–7280–5] possible. other information related to this action. 2. Describe any assumptions that you Pesticide Product; Registration Although a part of the official docket, used. Approval the public docket does not include 3. Provide copies of any technical Confidential Business Information (CBI) information and/or data you used that AGENCY: Environmental Protection or other information whose disclosure is support your views. Agency (EPA). restricted by statute. The official public 4. If you estimate potential burden or ACTION: Notice. docket is the collection of materials that costs, explain how you arrived at the is available for public viewing at the estimate that you provide. SUMMARY: This notice announces Public Information and Records 5. Provide specific examples to Agency approval of an application to Integrity Branch (PIRIB), Rm. 119, illustrate your concerns. register the pesticide product Crystal Mall #2, 1921 Jefferson Davis 6. Offer alternative ways to improve Bromuconazole Technical containing an Hwy., Arlington, VA. This docket the registration activity. active ingredient not included in any facility is open from 8:30 a.m. to 4 p.m., VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70946 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Monday through Friday, excluding legal III. Approved Application or specific. EPA has also listed denied holidays. The docket telephone number EPA issued a notice, published in the emergency exemption requests in this is (703) 305–5805. Federal Register of May 10, 1994 (59 FR notice. In accordance with section 3(c)(2) of 24151) (FRL–4770–4), which announced I. General Information FIFRA, a copy of the approved label, the that Rhone-Poulenc Ag Company had list of data references, the data and other submitted an application to register the A. Does this Action Apply to Me? scientific information used to support pesticide product Bromuconazole You may be potentially affected by registration, except for material Technical (EPA File Symbol 264–LUT), this action if you are a federal or state specifically protected by section 10 of containing bromuconazole at 97.0%, an government agency involved in FIFRA, are also available for public active ingredient not included in any administration of environmental quality inspection. Requests for data must be previously registered product. programs (i.e., Departments of made in accordance with the provisions The application was approved on Agriculture, Environment, etc). of the Freedom of Information Act and September 30, 2002, as Bromuconazole Potentially affected entities may must be addressed to the Freedom of Technical, a manufacturing use product include, but are not limited to: Information Office (A–101), 1200 for manufacturing, formulating and • Federal or State Government Pennsylvania Ave., NW., Washington, repackaging use (EPA Registration Entity, (NAICS 9241), i.e., Departments DC 20460–0001. The request should: Number 264–547). of Agriculture, Environment, etc. Identify the product name and This listing is not intended to be registration number andspecify the data List of Subjects exhaustive, but rather provides a guide or information desired. Environmental protection, Pesticides for readers regarding entities likely to be A paper copy of the fact sheet, which and pests. affected by this action. Other types of provides more detail on this Dated: November 16, 2002. entities not listed in this unit could also registration, may be obtained from the Debra Edwards, be affected. The North American National Technical Information Service Industrial Classification System (NTIS), 5285 Port Royal Rd., Acting Director, Registration Division, Office of Pesticide Programs. (NAICS) codes have been provided to Springfield, VA 22161. assist you and others in determining 2. Electronic access. You may access [FR Doc. 02–30124 Filed 11–26–02; 8:45 am] whether this action might apply to this Federal Register document BILLING CODE 6560–50–S certain entities. If you have any electronically through the EPA Internet questions regarding the applicability of under the ‘‘Federal Register’’ listings at this action to a particular entity, consult http://www.epa.gov/fedrgstr/. ENVIRONMENTAL PROTECTION the person listed under FOR FURTHER An electronic version of the public AGENCY INFORMATION CONTACT. docket is available through EPA’s [OPP–2002–0313; FRL–7280–9] electronic public docket and comment B. How Can I Get Copies of This system, EPA Dockets. You may use EPA Pesticide Emergency Exemptions; Document and Other Related Dockets at http://www.epa.gov/edocket/ Agency Decisions and State and Information? to submit or view public comments, Federal Agency Crisis Declarations 1. Docket. EPA has established an access the index listing of the contents official public docket for this action of the official public docket, and to AGENCY: Environmental Protection under docket identification (ID) number access those documents in the public Agency (EPA). OPP–2002–0313. The official public docket that are available electronically. ACTION: Notice. docket consists of the documents Although not all docket materials may specifically referenced in this action, SUMMARY: be available electronically, you may still EPA has granted or denied any public comments received, and access any of the publicly available emergency exemptions under the other information related to this action. docket materials through the docket Federal Insecticide, Fungicide, and Although a part of the official docket, facility identified in Unit I.B.1. Once in Rodenticide Act (FIFRA) for use of the public docket does not include the system, select ‘‘search,’’ then key in pesticides as listed in this notice. The Confidential Business Information (CBI) the appropriate docket ID number. exemptions or denials were granted or other information whose disclosure is during the period July 1, 2002 until restricted by statute. The official public II. Did EPA Approve the Application? September 30, 2002 to control unforseen docket is the collection of materials that The Agency approved the application pest outbreaks. is available for public viewing at the after considering all required data on FOR FURTHER INFORMATION CONTACT: See Public Information and Records risks associated with the proposed use each emergency exemption or denial for Integrity Branch (PIRIB), Rm. 119, of bromuconazole, and information on the name of a contact person. The Crystal Mall #2, 1921 Jefferson Davis social, economic, and environmental following information applies to all Hwy., Arlington, VA. This docket benefits to be derived from use. contact persons: Team Leader, facility is open from 8:30 a.m. to 4 p.m., Specifically, the Agency has considered Emergency Response Team, Registration Monday through Friday, excluding legal the nature of the chemical and its Division (7505C), Office of Pesticide holidays. The docket telephone number pattern of use, application methods and Programs, Environmental Protection is (703) 305–5805. rates, and level and extent of potential Agency, 1200 Pennsylvania Ave., NW., 2. Electronic access. You may access exposure. Based on these reviews, the Washington, DC 20460–0001; telephone this Federal Register document Agency was able to make basic health number: (703) 308–9366. electronically through the EPA Internet and safety determinations which show SUPPLEMENTARY INFORMATION: EPA has under the ‘‘Federal Register’’ listings at that use of bromuconazole when used in granted or denied emergency http://www.epa.gov/fedrgstr/. accordance with widespread and exemptions to the following State and An electronic version of the public commonly recognized practice, will not Federal agencies. The emergency docket is available through EPA’s generally cause unreasonable adverse exemptions may take the following electronic public docket and comment effects to the environment. form: Crisis, public health, quarantine, system, EPA Dockets. You may use EPA VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70947 Dockets at http://www.epa.gov/edocket/ III. Emergency Exemptions and Denials finding regarding health effects which to submit or view public comments, may result if this use were to occur. A. U. S. States and Territories access the index listing of the contents Contact: (Barbara Madden). of the official public docket, and to Arizona Specific: EPA authorized the use of access those documents in the public Department of Agriculture diuron on catfish ponds to control blue- docket that are available electronically. Specific: EPA authorized the use of green algae; September 10, 2002 to Although not all docket materials may metolachlor on spinach to control September 10, 2003. Contact: (Libby be available electronically, you may still broadleaf weeds; September 6, 2002 to Pemberton) access any of the publicly available May 15, 2003. Contact: (Andrew Idaho docket materials through the docket Ertman) Department of Agriculture facility identified in Unit I.B.1. Once in Arkansas Crisis: On June 21, 2002, for the use of the system, select ‘‘search,’’ then key in State Plant Board azoxystrobin on chickpeas to control the appropriate docket ID number. Specific: EPA authorized the use of Ascochyta blight. This program ended emamectin benzoate on cotton to on September 30, 2002. Contact: (Libby II. Background control beet armyworms and tobacco Pemberton) budworms; July 12, 2002 to September Specific: EPA authorized the use of Under FIFRA section 18, EPA can 30, 2002. Contact: (Andrea Conrath) azoxystrobin on chickpeas to control authorize the use of a pesticide when EPA authorized the use of spinosad on Ascochyta blight; July 1, 2002 to emergency conditions exist. pastureland and rangeland to control September 30, 2002. Contact: (Libby Authorizations (commonly called fall armyworms and true armyworms; Pemberton) emergency exemptions) are granted to July 15, 2002 to December 31, 2002. EPA authorized the use of cyfluthrin State and Federal agencies and are of Contact: (Andrew Ertman) and chlorpyrifos-methyl on wheat to four types: California control the lesser grain borer; August 1, 1. A ‘‘specific exemption’’ authorizes Environmental Protection Agency, 2002 to July 31, 2003. Contact: (Andrew use of a pesticide against specific pests Department of Pesticide Regulation Ertman) on a limited acreage in a particular Specific: EPA authorized the use of EPA authorized the use of cyfluthrin State. Most emergency exemptions are fenhexamid on Bosc and Asian pears to and chlorpyrifos-methyl on barley to specific exemptions. control gray mold; July 16, 2002 to control the lesser grain borer; August 1, 2. ‘‘Quarantine’’ and ‘‘public health’’ October 1, 2002. Contact: (Barbara 2002 to July 31, 2003. Contact: (Andrew exemptions are a particular form of Madden) Ertman) specific exemption issued for EPA authorized the use of imidacloprid EPA authorized the use of chlorine quarantine or public health purposes. on commercial stone fruit, almonds, and dioxide on stored potatoes to control These are rarely requested. blueberries to control the glassy-winged late blight; August 31, 2002 to August sharpshooter; June 22, 2002 to June 22, 31, 2003. Contact: (Andrew Ertman) 3. A ‘‘crisis exemption’’ is initiated by 2003. Contact: (Andrew Ertman) Kansas a State or Federal agency (and is EPA authorized the use of carbofuran on Department of Agriculture confirmed by EPA) when there is cotton to control aphids; August 2, 2002 Crisis: On July 8, 2002, for the use of insufficient time to request and obtain to October 30, 2002. Contact: (Dan fluroxypur on grain sorghum to control EPA permission for use of a pesticide in Rosenblatt) kochia. This program ended on July 23, an emergency. EPA authorized the use of zinc 2002. Contact: (Libby Pemberton) EPA may deny an emergency phosphide on alfalfa to control Specific: EPA authorized the use of exemption: If the State or Federal California and montane voles; bifenthrin on sorghum grown for seed to agency cannot demonstrate that an September 9, 2002 to May 31, 2003. control banks grass mite; August 16, emergency exists, if the use poses Contact: (Libby Pemberton) 2002 to September 30, 2002. Contact: unacceptable risks to the environment, Colorado (Andrea Conrath) or if EPA cannot reach a conclusion that Department of Agriculture Louisiana the proposed pesticide use is likely to Crisis: On June 4, 2002, for the use of Department of Agriculture and Forestry result in ‘‘a reasonable certainty of no sulfentrazone on potatoes to control Crisis: On May 3, 2002, for the use of harm’’ to human health, including broadleaf weeds. This program ended bifenthrin on sweet potatoes to control exposure of residues of the pesticide to on July 1, 2002. Contact: (Andrew soil beetles and sweet potato weevils. infants and children. Ertman) This program is expected to end on On June 20, 2002, for the use of November 30, 2002. Contact: (Andrea If the emergency use of the pesticide metsulfuron-methyl on sorghum to Conrath) on a food or feed commodity would control triazine-resistant broadleaf On May 6, 2002, for the use of result in pesticide chemical residues, weeds. This program ended on August sulfentrazone on sugarcane to control EPA establishes a time-limited tolerance 25, 2002. Contact: (Andrew Ertman) morning glories. This program is meeting the ‘‘reasonable certainty of no On June 6, 2002, for the use of expected to end on December 31, 2002. harm standard’’ of the Federal Food, permethrin on turnip greens to control Contact: (Andrew Ertman) Drug, and Cosmetic Act (FFDCA). flea beetles. This program ended on On May 31, 2002, for the use of In this document: EPA identifies the October 15, 2002. Contact: (Andrea methoxyfenozide on field corn to State or Federal agency granted the Conrath) control Southwestern corn borer and exemption or denial, the type of Georgia Sugarcane borer. This program ended on exemption, the pesticide authorized and Department of Agriculture August 15, 2002. Contact: (Barbara the pests, the crop or use for which Denial: On July 18, 2002, EPA denied Madden) authorized, number of acres (if the use of tebuconazole on cucurbits to Denial: On July 18, 2002, EPA denied applicable), and the duration of the control gummy stem blight disease. This the use of flumioxazin on cotton to exemption. EPA also gives the Federal request was denied because of the control weeds. This request was denied Register citation for the time-limited Agency’s inability at this time to reach because it did not meet the criteria of an tolerance, if any. a ‘‘reasonable certainty of no harm’’ urgent, non-routine situation based on VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70948 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices the availability of registered Specific: EPA authorized the use of EPA authorized the use of cyfluthrin alternatives. Contact: (Libby imidacloprid on blueberries to control and chlorpyrifos-methyl on wheat to Pemberton). oriental beetles; June 24, 2002 to August control the lesser grain borer; August 1, Specific: EPA authorized the use of 15, 2002. Contact: (Andrew Ertman) 2002 to July 31, 2003. Contact: (Andrew sulfentrazone on sugarcane to control EPA authorized the use of imidacloprid Ertman) morning glories; May 6, 2002 to on strawberries to control white grubs; EPA authorized the use of cyfluthrin December 31, 2002. Contact: (Andrew July 1, 2002 to August 7, 2002. Contact: and chlorpyrifos-methyl on barley to Ertman) (Andrew Ertman) control the lesser grain borer; August 1, EPA authorized the use of carbofuran on Michigan 2002 to July 31, 2003. Contact: (Andrew rice to control rice weeil; June 19, 2002 Michigan Department of Agriculture Ertman) to July 31, 2002. This request was Specific: EPA authorized the use of Nebraska originally granted due to reported imidacloprid on blueberries to control Department of Agriculture failures of the registered alternative in Japanese beetle grubs and adults; June Crisis: On May 21, 2002, for the use of 11, 2002 to September 30, 2002. controlling rice weevils. However, on sulfentrazone on potatoes to control Contact: (Andrew Ertman) July 24, 2002 this specific emergency broadleaf weeds. This program ended Minnesota exemption was revoked after additional on July 1, 2002. Contact: (Andrew Department of Agriculture Ertman) information submitted to the Agency Specific: EPA authorized the use of On July 19, 2002, for the use of indicated the registered alternative had lambda-cyhalothrin on wild rice to azoxystrobin on chickpeas to control not failed. Additionally, EPA received control rice worms; July 25, 2002 to Ascochyta blight. This program ended compelling feedback from the public in September 10, 2002. Contact: (Andrew on August 2, 2002. Contact: (Libby response to the solicitation of comments Ertman) about this program from the public in a EPA authorized the use of chlorine Pemberton) Nevada June 27, 2002, Federal Register notice. dioxide on stored potatoes to control Department of Agriculture The public, governmental organizations, late blight; August 31, 2002 to August Specific: EPA authorized the use of and non- governmental organizations, 31, 2003. Contact: (Andrew Ertman) overwhelmingly expressed their Mississippi chlorine dioxide on stored potatoes to opposition to any ongoing use of Department of Agriculture and control late blight; September 10, 2002 granular carbofuran under this section Commerce to August 31, 2003. Contact: (Andrew 18. Contact: (Daniel Rosenblatt). Denial: On July 18, 2002 EPA denied the Ertman) EPA authorized the use of use of flumioxazin on cotton to control New Jersey Department of Environmental Protection methoxyfenozide on field corn to weeds. This request was denied because Crisis: On June 3, 2002, for the use of control Southwestern corn borer and it did not meet the criteria of an urgent, propyzamide on cranberries to control Sugarcane borer; July 5, 2002 to August non-routine situation based on the dodder. This program is expected to end 15, 2002. Contact: (Barbara Madden) availability of registered alternatives. on December 15, 2002. Contact: EPA authorized the use of lambda- Contact: (Libby Pemberton). (Andrew Ertman) cyhalothrin on sugarcane to control Specific: EPA authorized the use of emamectin benzoate on cotton to Specific: EPA authorized the use of sugarcane borers; July 12, 2002 to metolachlor on spinach to control September 15, 2002. Contact: (Andrew control beet armyworms and tobacco budworms; July 12, 2002 to September broadleaf weeds; June 3, 2002 to May 1, Ertman) 2003. Contact: (Andrew Ertman) EPA authorized the use of bifenthrin on 30, 2002. Contact: (Andrea Conrath) EPA authorized the use of bifenthrin on EPA authorized the use of halosulfuron- sweet potatoes to control soil beetles methyl on asparagus to control yellow and sweet potato weevils; July 19, 2002 sweet potatoes to control soil beetles; July 19, 2002 to September 30, 2002. nutsedge; July 5, 2002 to December 1, to November 30, 2002. Contact: (Andrea 2002. Contact: (Barbara Madden) Conrath) Contact: (Andrea Conrath) EPA authorized the use of tebufenozide EPA authorized the use of propyzamide EPA authorized the use of tebufenozide on cranberries to control dodder; July on sweet potatoes to control beet on sweet potatoes to control beet armyworms; August 29, 2002 to October 18, 2002 to December 15, 2002. Contact: armyworms; July 25, 2002 to October (Andrew Ertman) 31, 2002. Contact: (Andrew Ertman) 15, 2002. Contact: (Andrew Ertman) Montana North Carolina Maryland Department of Agriculture Department of Agriculture Department of Agriculture Crisis: On June 26, 2002, for the use of Crisis: On August 12, 2002, for the use Crisis: On August 6, 2002, for the use of azoxystrobin on chickpeas to control of tebufenozide on sweet potatoes to diquat on private ponds to control Ascochyta blight. This program ended control beet armyworms. This program weeds associated with the invasive on August 15, 2002. Contact: (Libby is expected to end on November 15, snakehead fish. This program ended on Pemberton) 2002. Contact: (Andrew Ertman) October 31, 2002. Contact: (Andrea On July 8, 2002, for the use of Specific: EPA authorized the use of Conrath) azoxystrobin on safflower to control diuron on catfish ponds to control blue- Specific: EPA authorized the use of Alternaria leaf spot. This program green algae; July 12, 2002 to November metolachlor on spinach to control ended on August 15, 2002. Contact: 30, 2002. Contact: (Libby Pemberton) broadleaf weeds; September 6, 2002 to (Libby Pemberton) EPA authorized the use of tebufenozide April 30, 2003. Contact: (Andrew Specific: EPA authorized the use of on sweet potatoes to control beet Ertman) lambda-cyhalothrin on barley to control armyworms; August 12, 2002 to Massachusetts the Russian wheat aphid and the cereal November 15, 2003. Contact: (Andrew Massachusetts Department of Food and leaf beetle; June 24, 2002 to July 30, Ertman) Agriculture 2002. Contact: (Andrew Ertman) North Dakota Crisis: On June 7, 2002, for the use of EPA authorize the use of azoxystrobin Department of Agriculture indoxacarb on cranberry to control on chickpeas to control Ascochyta Crisis: On July 10, 2002, for the use of weevils. This program ended on October blight; July 1, 2002 to August 31, 2002. azoxystrobin on safflower to control 1, 2002. Contact: (Andrea Conrath) Contact: (Libby Pemberton) Alternaria leaf spot. This program VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70949 ended on August 15, 2002. Contact: greasy spot disease; August 9, 2002 to Specific: EPA authorized the use of (Libby Pemberton) August 9, 2003. Contact: (Andrea chlorine dioxide on stored potatoes to On July 30, 2002, for the use of zeta- Conrath) control late blight; August 31, 2002 to cypermethrin on flax to control EPA authorized the use of bifenthrin on August 31, 2003. Contact: (Andrew grasshoppers. This program ended on sorghum grown for seed to control Ertman) September 15, 2002. Contact: (Libby banks grass mite; August 16, 2002 to B. Federal Departments and Agencies Pemberton) August 16, 2003. Contact: (Andrea Specific: EPA authorized the use of Conrath) Agriculture Department azoxystrobin on chickpeas to control EPA authorized the use of chlorine Animal and Plant Health Inspector Ascochyta blight; July 1, 2002 to August dioxide on stored potatoes to control Service 31, 2002. Contact: (Libby Pemberton) late blight; August 31, 2002 to August Quarantine: EPA authorized the use of Oregon 31, 2003. Contact: (Andrew Ertman) acetominophen in Guam and the Department of Agriculture EPA authorized the use of diuron on Commonwealth of Northern Mariana Specific: EPA authorized the use of catfish ponds to control blue-green Islands to control the invasive brown fludioxonil on peaches to control brown algae; September 10, 2002 to September tree snake; July 17, 2002, to July 17, rot, gray mold, and Rhizopus rot; July 2, 10, 2003. Contact: (Libby Pemberton) 2005. Contact: (Andrea Conrath) 2002 to September 30, 2002. Contact: Utah Defense Department (Andrew Ertman) Department of Agriculture Quarantine: EPA authorized the use of EPA authorized the use of fludioxonil Crisis: On May 14, 2002, for the use of paraformaldehyde on United States on cherries to control brown rot, gray diflubenzuron on alfalfa to control Army, Medical Research Institute of mold, and Rhizopus rot; July 2, 2002 to grasshoppers and crickets. This program Infectious Diseases (USAMRIID) facility August 15, 2002. Contact: (Andrew ended on October 31, 2002. Contact: to control infectious microorganisms Ertman) (Andrea Conrath) from containment areas; July 24, 2002, EPA authorized the use of cyfluthrin Specific: EPA authorized the use of to July 24, 2005. Contact: (Libby and chlorpyrifos-methyl on wheat to diflubenzuron on alfalfa to control Pemberton) control the lesser grain borer; August 1, grasshoppers and crickets; September 2002 to July 31, 2003. Contact: (Andrew 13, 2002 to October 31, 2002. Contact: List of Subjects Ertman) (Andrea Conrath) Environmental protection, Pesticides EPA authorized the use of cyfluthrin Virginia and pest. and chlorpyrifos-methyl on barley to Department of Agriculture and Dated: November 16, 2002. control the lesser grain borer; August 1, Consumer Services Debra Edwards, 2002 to July 31, 2003. Contact: (Andrew Specific: EPA authorized the use of Ertman) tebufenozide on grapes to control Grape Acting Director, Registration Division, Office of Pesticide Programs. EPA authorized the use of ethoprop on berry moth; July 5, 2002 to October 1, baby mint to control garden symphylan; 2002. Contact: (Barbara Madden) FR Doc. 02–30123 Filed 11–26–02; 8:45 am August 19, 2002 to September 15, 2002. Washington BILLING CODE 6560–50–S Contact: (Dan Rosenblatt) Department of Agriculture EPA authorized the use of chlorine Crisis: On June 21, 2002, for the use of dioxide on stored potatoes to control azoxystrobin on chickpeas to control ENVIRONMENTAL PROTECTION late blight; August 31, 2002 to August Ascochyta blight. This program ended AGENCY 31, 2003. Contact: (Andrew Ertman) on September 30, 2002. Contact: (Libby [FRL–7414–1] Pennsylvania Pemberton) Department of Agriculture Specific: EPA authorized the use of The QTRACER2 Program for Tracer- Specific: EPA authorized the use of azoxystrobin on chickpeas to control Breakthrough Curve Analysis for sulfentrazone on strawberries to control Ascochyta blight; July 1, 2002 to Tracer Tests in Karst Aquifers and common groundsel; June 26, 2002 to September 30, 2002. Contact: (Libby Other Hydrologic Systems; and A December 15, 2002. Contact: (Andrew Pemberton) Lexicon of Cave and Karst Ertman) EPA authorized the use of zinc Terminology With Special Reference to South Dakota phosphide on timothy and timothy Environmental Karst Hydrology Department of Agriculture legume mixtures to control vole Specific: EPA authorized the use of complex; July 25, 2002 to May 1, 2003. AGENCY: Environmental Protection azoxystrobin on chickpeas to control Contact: (Libby Pemberton) Agency. Ascochyta blight; July 1, 2002 to August EPA authorized the use of cyfluthrin ACTION: Notice of availability of two 31, 2002. Contact: (Libby Pemberton) and chlorpyrifos-methyl on wheat to final reports and CD–ROMs. EPA authorized the use of cyfluthrin control the lesser grain borer; August 1, and chlorpyrifos-methyl on stored 2002 to July 31, 2003. Contact: (Andrew SUMMARY: This notice announces the grains to control the lesser grain borer; Ertman) availability of two final reports, The July 24, 2002 to July 17, 2003. Contact: EPA authorized the use of cyfluthrin QTRACER2 Program for Tracer- (Andrew Ertman) and chlorpyrifos-methyl on barley to Breakthrough Curve Analysis for Tracer Tennessee control the lesser grain borer; August 1, Tests in Karst Aquifers and Other Department of Agriculture 2002 to July 31, 2003. Contact: (Andrew Hydrologic Systems (EPA/600/R–02/ Specific: EPA authorized the use of Ertman) 001, May 2002, which supercedes EPA/ carbofuran on cotton to control aphids; EPA authorized the use of chlorine 600/R–98/156a and 156b, February August 2, 2002 to October 30, 2002. dioxide on stored potatoes to control 1999), and A Lexicon of Cave and Karst Contact: (Dan Rosenblatt) late blight; August 31, 2002 to August Terminology with Special Reference to Texas 31, 2003. Contact: (Andrew Ertman) Environmental Karst Hydrology (EPA/ Department of Agriculture Wisconsin 600/R–02/003, February 2002, which Specific: EPA authorized the use of Department of Agriculture, Trade, and supercedes EPA/600/R–99/006). These fenbuconazole on grapefruit to control Consumer Protection reports were prepared by the U.S. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70950 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Environmental Protection Agency’s PB2002–107662 (for QTRACER2) and with Section 122(i)(1) of CERCLA, 42 (EPA) National Center for PB2002–107663 (Lexicon). U.S.C. 9622(i)(1), notice is hereby given Environmental Assessment (NCEA) of FOR FURTHER INFORMATION CONTACT: For of a proposed administrative settlement the Office of Research and Development further information, please contact concerning the Malvern TCE Superfund (ORD). Malcolm Field (202–564–3279) mailing Site, in East Whiteland Chester County, The QTRACER2 Program for Tracer- address: National Center for Pennsylvania. The administrative Breakthrough Curve Analysis for Tracer Environmental Assessment/Washington settlement is subject to review by the Tests in Karstic Aquifers and Other Office (8623D), U.S. Environmental public pursuant to this Notice. Hydrologic Systems is a detailed users Protection Agency, 1200 Pennsylvania The Settling Party has agreed to pay manual with a CD–ROM. QTRACER2 Avenue, NW., Washington, DC 20460; $100 to the Hazardous Substances Trust takes basic input data obtained at the facsimile: 202–565–0079; e-mail: Fund subject to the contingency that start and finish of a hydrologic tracer [email protected]. EPA may elect not to complete the test and performs the basic calculations settlement if comments received from Dated: November 17, 2002. (e.g., numerical integrations necessary the public during this comment period for extracting critical hydraulic and George W. Alapas, disclose facts or considerations which geometric information about the flow Acting Director, National Center for indicate the proposed settlement is system under investigation). The Environmental Assessment. inappropriate, improper, or inadequate. executable code, source code, additional [FR Doc. 02–30119 Filed 11–26–02; 8:45 am] This amount to be paid by the Settling related programs, and several example BILLING CODE 6560–50–P Party was based upon EPA’s review of data files are all contained on a CD– financial information relating to the ROM. QTRACER2 is an update of the Settling Party and a determination by previously released QTRACER to run ENVIRONMENTAL PROTECTION EPA that the Settling Party has a limited under Windows with considerable AGENCY ability to pay monies to settle EPA’s mouse support, including some minor [FRL–7392–9] claims. Monies collected from the bug fixes and expanded analysis Settling Party will be applied towards capabilities. For example, short- and Proposed Administrative Settlement past and future response costs incurred long-term pulse tracer releases and Under the Comprehensive by EPA or PRPs performing work at or continuous tracer releases can now be Environmental Response, in connection with the Site. adequately addressed by QTRACER2. Compensation, and Liability Act EPA is entering into this agreement A Lexicon of Cave and Karst under the authority of sections 107 and AGENCY: Environmental Protection Terminology with Special Reference to Agency. 122(g) of CERCLA, 42 U.S.C. 9607 and Environmental Karst Hydrology is a 9622(g). Section 122(g) authorizes early ACTION: substantial listing and cross-referencing Request for public comment. settlements with de minimis parties to of major and minor karst-related SUMMARY: The Environmental Protection allow them to resolve their liabilities at terminology. This updated version Agency is proposing to enter into a de Superfund Sites without incurring contains some corrections to the minimis settlement pursuant to Section substantial transaction costs. Under this previous version and includes 122(g)(4) of the Comprehensive authority, EPA proposes to settle with numerous biological and ecological Environmental Response, Compensation Settling Party in connection with the terms that were not included in the and Liability Act of 1980, as amended Site, based upon a determination that original release. It includes numerous (CERCLA), 42 U.S.C. 9622(g)(4). This Settling Party is responsible for 0.75 foreign terms because so much of the proposed settlement is intended to percent or less of the volume of literature is developed in other resolve the liability under CERCLA of hazardous substance sent to the Site. countries and often published in CSS International Corporation (‘‘Settling The Environmental Protection Agency somewhat unknown journals. Party’’) for response costs incurred and will receive written comments relating DATES: These documents will be to be incurred at the Malvern TCE to this settlement for thirty (30) days available November 27, 2002. Superfund Site, East Whiteland and from the date of publication of this ADDRESSES: These documents are Charlestown Townships, Chester Notice. A copy of the proposed available electronically through the County, Pennsylvania, relating to the Administrative Order on Consent can be NCEA Web site at (www.epa.gov/ncea). Malvern TCE Superfund Site (‘‘Site’’). obtained from Joan A. Johnson (3RC41), U.S. Environmental Protection Agency, A limited number of paper copies and DATES: Comments must be provided by Region III, 1650 Arch Street, CDs will be available from the EPA’s December 27, 2002. National Service Center for Philadelphia, Pennsylvania, 19103– ADDRESSES: Comments should be Environmental Publications (NSCEP), 2029, or by contacting Joan A. Johnson addressed to Suzanne Canning, Docket at (215) 814–2619. PO Box 42419, Cincinnati, OH 45242; Clerk, U.S. Environmental Protection telephone: 1–800–490–9198 or 513– Agency, Region III, 1650 Arch Street, Dated: September 23, 2002. 489–8190; facsimile: 513–489–8695; or Philadelphia, PA 19103–2029, and James W. Newsom, via the Internet at http://www.epa.gov/ should refer to the Malvern TCE Acting Regional Administrator, NCEPIhome/orderpub.html). Please Superfund Site, East Whiteland Environmental Protection Agency Region III. provide your name, mailing address, the Township, Chester County, [FR Doc. 02–30120 Filed 11–26–02; 8:45 am] title, and EPA number of the requested Pennsylvania. BILLING CODE 6560–50–P publication when ordering from NSCEP. Copies may also be purchased from the FOR FURTHER INFORMATION CONTACT: Joan National Technical Information Service A. Johnson (3RC41), 215/814–2619, U.S. (NTIS) in Springfield, Virginia; Environmental Protection Agency, 1650 FARM CREDIT ADMINISTRATION Arch Street, Philadelphia, Pennsylvania telephone: 1–800–553–NTIS[6847] or Farm Credit Administration Board; 19103–2029. 703–605–6000; facsimile: 703–321– Regular Meeting; Sunshine Act 8547. When ordering from NTIS please SUPPLEMENTARY INFORMATION: Notice of provide the following numbers: de minimis Settlement: In accordance AGENCY: Farm Credit Administration. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70951 SUMMARY: Notice is hereby given, termination date of the agreement The FEDERAL MARITIME COMMISSION pursuant to the Government in the parties request expedited review. Sunshine Act (5 U.S.C. 552b(e)(3)), that Ocean Transportation Intermediary Agreement No.: 011712–003. the December 12, 2002 regular meeting License; Applicants of the Farm Credit Administration Title: CMA CGM/CSG Slot Exchange, Notice is hereby given that the Board (Board) will not be held. The FCA Sailing and Cooperative Working following applicants have filed with the Board will hold a special meeting at 9 Agreement. Federal Maritime Commission an a.m. on Friday, December 20, 2002. An Parties: CMA CGM, S.A., China application for license as a Non-Vessel agenda for this meeting will be Shipping Container Lines Co., Ltd. Operating Common Carrier and Ocean published at a later date. Synopsis: The proposed amendment Freight Forwarder—Ocean FOR FURTHER INFORMATION CONTACT: reduces the number of vessels to be Transportation Intermediary pursuant to Jeanette C. Brinkley, Acting Secretary to deployed under the agreement from 22 section 19 of the Shipping Act of 1984 the Farm Credit Administration Board, to 10. The parties request expedited as amended (46 U.S.C. app. 1718 and 46 (703) 883–4009, TTY (703) 883–4056. review. CFR 515). ADDRESSES: Farm Credit Persons knowing of any reason why Agreement No.: 011737–009. Administration, 1501 Farm Credit Drive, the following applicants should not McLean, Virginia 22102–5090. Title: The MCA Agreement. receive a license are requested to Dated: November 25, 2002. Parties: Atlantic Container Line AB; contact the Office of Transportation Jeanette C. Brinkley, Alianca Navegacao e Logistica LTDA; Intermediaries, Federal Maritime Acting Secretary, Farm Credit Administration A.P. Moller-Maersk Sealand; Antillean Commission, Washington, DC 20573. Board. Marine Shipping Corporation; CMA Non-Vessel Operating Common [FR Doc. 02–30339 Filed 11–25–02; 3:04 pm] CGM, S.A.; Companhia Libra De Carrier Ocean Transportation Intermediary Applicants: BILLING CODE 6705–01–P Navegacao; Compania Sud Americana De Vapores S.A.; CP Ships (UK) Safe Ocean Line, Inc., 8555 NW. 20 Limited, d/b/a ANZDL and d/b/a Street, Miami, FL 33122. Officers: FEDERAL MARITIME COMMISSION Contship Containerlines; Crowley Liner Gloria Gil, President (Qualifying Services, Inc.; Hamburg-Sud; Dole Individual), Manuel Taracon, Export Notice of Agreement(s) Filed Ocean Cargo Express, Inc.; Great White Manager. Fleet (US) Ltd.; Hapag-Lloyd Container Zircon (USA) Logistics, Inc., 504 Royal The Commission hereby gives notice Linie GmbH; King Ocean Central Palm Beach Blvd., Royal Palm Beach, of the filing of the following America S.A.; King Ocean Service De FL 33411. Officers: Warren Jeffery, agreement(s) under the Shipping Act of Colombia S.A.; King Ocean Service De President (Qualifying Individual), 1984. Interested parties can review or David Thorpe, Vice President. obtain copies of agreements at the Venezuela S.A.; Lykes Lines Limited, Non-Vessel Operating Common Washington, DC offices of the LLC; Montemar Maritima S.A.; Network Carrier and Ocean Freight Forwarder Commission, 800 North Capitol Street, Shipping Ltd.; Nippon Yusen Kaisha; Transportation Intermediary Applicants: NW., Room 940. Interested parties may Norasia Container Line Limited; P&O submit comments on an agreement to Nedlloyd Limited; Safmarine Container Sea Air Systems, Inc., Foreign Trade the Secretary, Federal Maritime Lines N.V.; TMM Lines Limited, LLC; Zone #61, Rd. 165, Km 2.4, Bldg. 1 Commission, Washington, DC 20573, Tropical Shipping & Construction Co., Warehouse 10, Pueblo Viejo, within 10 days of the date this notice Ltd.; and Wallenius Wilhelmsen Lines Guaynabo, PR 00965. Officers: Jose F. appears in the Federal Register. AS. Blazquez, Managing (Qualifying Agreement No.: 011527–007. Synopsis: The subject modifications Individual). Title: Independent Carriers Alliance. adds Great White Fleet and Network Landstar Logistics, Inc., 13410 Sutton Parties: CMA CGM, S.A., Hanjin Shipping as members and deletes Park Drive, South, Jacksonville, FL Shipping Co., Ltd., Montemar Maritima Tecmarine as a member. It also adds a 32224. Officers: Jim Handoush, Vice S.A., Zim Israel Navigation Company provision for the payment of annual President (Qualifying Individual), James R. Hertwig, President. Ltd. dues. Synopsis: The subject modifications Africa 2000 Inc., 57–52 W. Little York, provide for the resignation of Senator Agreement No.: 011833. Houston, TX 77091. Officers: Ndiaga Lines and the assumption of its rights Title: Contship/WWL Space Charter Lo, President (Qualifying Individual), and obligations under the Agreement by Agreement. Name Bity Seye, Assistant Director. Hanjin Shipping Co., Ltd. FYT, Inc., 17588 E. Rowland St., Suite Parties: Contship Containerlines, A216, City of Industry, CA 91748. Agreement No.: 011695–005. Wallenius Wilhelmsen Lines AS. Title: CMA CGM/Norasia Reciprocal Officer: Hong Jian Yao, Owner Space Charter, Sailing and Cooperative Synopsis: The agreement authorizes (Qualifying Individual). Working Agreement. Contship to charter space to WWL on OEC Freight Companies, 18900 8th Parties: CMA CGM, S.A., Norasia vessels utilized by Contship in the trade Avenue, South #900, Seatac, WA Container Lines Ltd. from United States Atlantic and Gulf 98148. Officers: Peter M. Ku, Station Synopsis: The proposed amendment Coasts to Australia and New Zealand. Manager (Qualifying Individual), reduces the number of vessels to be By Order of the Federal Maritime Steven Fong, President. deployed under the agreement from 12 Commission. PMJ International Inc., 516 Mountainview Drive, North to 5 and revises the slot allocations Dated: November 22, 2002. accordingly, includes a reference to Plainfield, NJ 07063. Officer: Pelham available space under another Bryant L. VanBrakle, Hicks, President (Qualifying agreement, extends the earliest date for Secretary. Individual). notice of withdrawal, and revises the [FR Doc. 02–30150 Filed 11–26–02; 8:45 am] Ocean Freight Forwarder—Ocean notice period for and the earliest BILLING CODE 6730–01–P Transportation Intermediary Applicants: VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70952 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Honor Truck & Transfer, Inc., 1100 Wood Magers, Springfield, Missouri; holding companies may be obtained DeForest Avenue, Long Beach, CA Magers Enterprises II, LLLP from the National Information Center 90813. Officers: Ali Behruz Nikkhoo, (‘‘Partnership’’), W. Bryan and Randall website at www.ffiec.gov/nic/. President (Qualifying Individual), W. Magers, General Partners, Unless otherwise noted, comments Robert J. Livingston, Vice President. Springfield, Missouri; Magers Family regarding each of these applications JVL International Corporation, 2200 Irrevocable Trust (‘‘Trust’’); W. Bryan must be received at the Reserve Bank Broening Highway, Suite 277, and Randall W. Magers, Trustees, indicated or the offices of the Board of Baltimore, MD 21224. Officer: Jorge Springfield, Missouri, to gain control of Governors not later than December 23, Luiz Vieira Lima, Managing Director Marshfield Investment Company, 2002. (Qualifying Individual). Springfield, Missouri (‘‘Company’’), and A. Federal Reserve Bank of Chicago Lukini Shipping Inc., Cargo Building 80, thereby acquire voting shares of Bank of (Phillip Jackson, Applications Officer) Rm. 203, JFK International Airport, Kimberling City, Kimberling City, 230 South LaSalle Street, Chicago, Jamaica, NY 11430. Officer: Miriam Y. Missouri; First National Bank, LaMar, Illinois 60690-1414: Chen, Gen. Manager/Director Missouri; and Metropolitan National 1. First Merchants Corporation, (Qualifying Individual). Bank, Springfield, Missouri. In Muncie, Indiana; to acquire 100 percent connection with this application, Dated: November 22, 2002. of the voting shares of CNBC Bancorp, William Bryan Magers and Randall Columbus, Ohio, and thereby indirectly Bryant L. VanBrakle, Wood Magers, both of Springfield, acquire voting shares of Commerce Secretary. Missouri, individually and as general National Bank, Columbus, Ohio. [FR Doc. 02–30151 Filed 11–26–02; 8:45 am] partners of Partnership and Trustees of Board of Governors of the Federal Reserve BILLING CODE 6730–01–P Trust, will increase their aggregate System, November 22, 2002. voting control of Company’s voting Robert deV. Frierson, stock. FEDERAL RESERVE SYSTEM Deputy Secretary of the Board. Board of Governors of the Federal Reserve [FR Doc. 02–30148 Filed 11–26–02; 8:45 am] System, November 22, 2002. Change in Bank Control Notices; BILLING CODE 6210–01–S Robert deV. Frierson, Acquisition of Shares of Bank or Bank Holding Companies Deputy Secretary of the Board. [FR Doc. 02–30147 Filed 11–26–02; 8:45 am] FEDERAL TRADE COMMISSION The notificants listed below have BILLING CODE 6210–01–S applied under the Change in Bank [File No. 021 0090] Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 FEDERAL RESERVE SYSTEM Wal-Mart Stores, Inc. and CFR 225.41) to acquire a bank or bank Supermercados Amigo, Inc.; Analysis holding company. The factors that are Formations of, Acquisitions by, and To Aid Public Comment Mergers of Bank Holding Companies considered in acting on the notices are AGENCY: Federal Trade Commission. set forth in paragraph 7 of the Act (12 The companies listed in this notice ACTION: Proposed consent agreement. U.S.C. 1817(j)(7)). have applied to the Board for approval, The notices are available for pursuant to the Bank Holding Company SUMMARY: The consent agreement in this immediate inspection at the Federal Act of 1956 (12 U.S.C. 1841 et seq.) matter settles alleged violations of Reserve Bank indicated. The notices (BHC Act), Regulation Y (12 CFR part federal law prohibiting unfair or also will be available for inspection at 225), and all other applicable statutes deceptive acts or practices or unfair the office of the Board of Governors. and regulations to become a bank methods of competition. The attached Interested persons may express their holding company and/or to acquire the Analysis to Aid Public Comment views in writing to the Reserve Bank assets or the ownership of, control of, or describes both the allegations in the indicated for that notice or to the offices the power to vote shares of a bank or draft complaint that accompanies the of the Board of Governors. Comments bank holding company and all of the consent agreement and the terms of the must be received not later than banks and nonbanking companies consent order—embodied in the consent December 13, 2002. owned by the bank holding company, agreement—that would settle these A. Federal Reserve Bank of Atlanta including the companies listed below. allegations. (Sue Costello, Vice President) 1000 The applications listed below, as well DATES: Comments must be received on Peachtree Street, N.E., Atlanta, Georgia as other related filings required by the or before December 20, 2002. 30303: Board, are available for immediate 1. George H. and Mary Ethel Eicher, inspection at the Federal Reserve Bank ADDRESSES: Comments filed in paper Homestead, Florida, and George P. indicated. The application also will be form should be directed to: FTC/Office Eicher, Monticello, Kentucky; to retain available for inspection at the offices of of the Secretary, Room 159–H, 600 voting shares of Community Bank of the Board of Governors. Interested Pennsylvania Avenue, NW., South Florida, Inc., Homestead, Florida, persons may express their views in Washington, DC 20580. Comments filed and thereby indirectly retain voting writing on the standards enumerated in in electronic form should be directed to: shares of Community Bank of Florida, the BHC Act (12 U.S.C. 1842(c)). If the [email protected], as Homestead, Florida. proposal also involves the acquisition of prescribed below. B. Federal Reserve Bank of St. Louis a nonbanking company, the review also FOR FURTHER INFORMATION CONTACT: (Randall C. Sumner, Vice President) 411 includes whether the acquisition of the Barbara Anthony or Michael Bloom, Locust Street, St. Louis, Missouri 63166- nonbanking company complies with the FTC Northeast Regional Office, One 2034: standards in section 4 of the BHC Act Bowling Green, Suite 318, New York, 1. The Magers Family Control Group (12 U.S.C. 1843). Unless otherwise NY 10004. (212) 607–2828 or (212) 607– consisting of William G. Magers, noted, nonbanking activities will be 2801. Springfield, Missouri; William Bryan conducted throughout the United States. SUPPLEMENTARY INFORMATION: Pursuant Magers, Springfield, Missouri; Randall Additional information on all bank to section 6(f) of the Federal Trade VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70953 Commission Act, 38 Stat. 721, 15 U.S.C. of the outstanding voting stock of markets in Puerto Rico. The evidence 46(f), and section 2.34 of the Amigo. obtained in our investigation indicated Commission’s rules of practice, 16 CFR that the markets at issue here have II. Description of the Parties and the 2.34, notice is hereby given that the characteristics that support a broader Proposed Acquisition above-captioned consent agreement relevant product market than those containing a consent order to cease and Wal-Mart is a global food and general identified in past supermarket desist, having been filed with and merchandise retailer headquartered in investigations by the Commission. accepted, subject to final approval, by Arkansas. The company operates or There are approximately 250 the Commission, has been placed on the services approximately 4,200 stores in supermarkets across Puerto Rico, with public record for a period of thirty (30) the United States, Europe, Latin the majority located in the San Juan days. The following Analysis to Aid America, and Asia and had sales of over metropolitan area. There are numerous Public Comment describes the terms of $191 billion in 2001. In the small and mid-sized supermarket chains the consent agreement, and the Commonwealth of Puerto Rico, Wal- throughout the island, and in general, allegations in the complaint. An Mart, through its subsidiary Wal-Mart competition appears robust. In Puerto electronic copy of the full text of the Puerto Rico, Inc., operates nine Rico, full-service supermarkets, consent agreement package can be traditional Wal-Mart Stores, one Wal- ‘‘supercenters’’ (which are co-located obtained from the FTC Home Page (for Mart Supercenter, and eight SAM’s full-service supermarkets and mass November 21, 2002), on the World Wide Clubs. merchandise outlets), and ‘‘club stores’’ Web, at http://www.ftc.gov/os/2002/11/ Amigo, headquartered in San Juan, (which are stores that offer a wide index.htm. A paper copy can be Puerto Rico, is the largest supermarket selection and deep inventory of food obtained from the FTC Public Reference chain in Puerto Rico in terms of dollar and grocery products and general Room, Room 130-H, 600 Pennsylvania sales. With annual sales in 2001 of merchandise-often in large-sized Avenue, NW., Washington, DC 20580, approximately $542 million, Amigo packages or in packages of two or more either in person or by calling (202) 326– operates 36 supermarkets under the conventional-sized items—to businesses 2222. Amigo trade name in Puerto Rico. and individuals that have purchased On February 5, 2002, Wal-Mart and Public comments are invited, and may club memberships) offer a distinct set of Amigo signed an agreement whereby be filed with the Commission in either products and services that enables them Wal-Mart will purchase all of the paper or electronic form. Comments to compete in the relevant line of outstanding voting securities of Amigo filed in paper form should be directed commerce described above. Information through the merger of W–M Puerto Rico to: FTC/Office of the Secretary, Room provided by several club store and Acquisition Corp., an indirect wholly 159–H, 600 Pennsylvania Avenue, NW., supermarket operators in Puerto Rico owned subsidiary of Wal-Mart, with and Washington, DC 20580. If a comment indicates that many Puerto Rico into Amigo. Amigo will continue as the contains nonpublic information, it must consumers regard club stores as apt surviving corporation. As a result of the be filed in paper form, and the first page substitutes for supermarkets. A merger, Wal-Mart will hold 100% of the of the document must be clearly labeled substantial portion of retail purchasers voting securities of Amigo. ‘‘confidential.’’ Comments that do not in Puerto Rico regard full-service contain any nonpublic information may III. The Complaint supermarkets, supercenters, and club instead be filed in electronic form (in The complaint alleges that the stores as reasonably interchangeable for ASCII format, WordPerfect, or Microsoft relevant line of commerce (i.e., the the purpose of purchasing substantially Word) as part of or as an attachment to product market) in which to analyze the all of their weekly food and grocery e-mail messages directed to the acquisition is the retail sale of food and shopping requirements in a single following e-mail box: grocery products in stores that carry a shopping visit. [email protected]. Such wide selection and deep inventory of In Puerto Rico, full-service comments will be considered by the food and grocery products in a variety supermarkets, supercenters, and club Commission and will be available for of brands and sizes, enabling consumers stores compete primarily with each inspection and copying at its principal to purchase substantially all of their other. Supermarkets in Puerto Rico office in accordance with section weekly food and grocery shopping compete with club stores in a variety of 4.9(b)(6)(ii) of the Commission’s rules of requirements in a single shopping visit. ways. Operators of Puerto Rico full- practice, 16 CFR 4.9(b)(6)(ii)). Thus, stores in the relevant line of service supermarkets, supercenters, and Analysis of the Complaint and commerce have substantial offerings in club stores often price-check and Proposed Decision and Order To Aid each of the following product categories: modify the prices of their food and Public Comment bread and dairy products; refrigerated grocery products based on the prices of and frozen food and beverage products; food and grocery products at nearby I. Introduction fresh and prepared meats and poultry; full-service supermarkets, supercenters, The Federal Trade Commission produce, including fresh fruits and and club stores. They do not often price- (‘‘Commission’’) has accepted for public vegetables; shelf-stable food and check and modify the prices of food and comment from Wal-Mart Stores, Inc. beverage products, including canned grocery products based on the prices at (‘‘Wal-Mart’’) and Supermercados and other types of packaged products; other types of stores, such as limited Amigo, Inc. (‘‘Amigo’’) (collectively, staple foodstuffs, which may include assortment stores, convenience stores, ‘‘the Proposed Respondents’’) an salt, sugar, flour, sauces, spices, coffee, specialty food stores (e.g., seafood Agreement Containing Consent Orders and tea; and other grocery products, markets, bakeries, etc.), military (‘‘the proposed consent order’’). The including nonfood items such as soaps, commissaries, and mass merchandise Proposed Respondents have also detergents, paper goods, other outlets (including those with pantries reviewed the complaint issued by the household products, and health and not offering a wide selection and deep Commission. The proposed consent beauty aids. inventory of food and grocery products). order is designed to remedy likely Unlike prior supermarket In Puerto Rico, most consumers anticompetitive effects arising from investigations by the Commission, this shopping for food and grocery products Wal-Mart’s proposed acquisition of all investigation involves geographic at full-service supermarkets, VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70954 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices supercenters, and club stores are not inventory of food and grocery products), market, the combined market share likely to shop at other types of stores in do not effectively constrain prices in the would be greater than 59%. response to a small price increase by relevant line of commerce as described The complaint further alleges that full-service supermarkets, supercenters, above. In Puerto Rico, none of these entry would not be timely, likely, or and club stores. stores offers a full-service sufficient to prevent anticompetitive Many supermarket operators lose supermarket’s, supercenter’s, or club effects in the relevant geographic substantial sales when club stores open store’s distinct set of products and markets. near to their own stores, and some services that enables a retail customer to The complaint also alleges that Wal- engage in aggressive promotions in the engage in one-stop shopping for food Mart’s acquisition of all of the weeks before and following the opening and grocery products. outstanding voting securities of Amigo, of a club store to blunt that sales loss. if consummated, may substantially Some have remodeled stores in advance Ample testimonial and documentary lessen competition in the relevant line of their plans so as to ward off evidence indicates that a significant of commerce in the relevant markets in defections to club stores. Some have portion of Puerto Rico consumers use violation of Section 7 of the Clayton reacted to competition from club stores full-service supermarkets and club Act, as amended, 15 U.S.C. 18, and by adding additional multi-packs to stores interchangeably. Accordingly, the Section 5 of the Federal Trade their product offering and enhancing relevant product market within which Commission Act, as amended, 15 U.S.C. customer service. At the same time, club to assess the effects in Puerto Rico of the 45, by eliminating direct competition stores in Puerto Rico have introduced proposed transaction is a market between supercenters and club stores increased numbers of conventional consisting of full-service supermarkets, owned or controlled by Wal-Mart and package configurations. Ordinary- supercenters, and retail sales of supermarkets owned and controlled by course-of-business documents of supermarket-type items at club stores, or Amigo; by increasing the likelihood that supermarket operators often refer to in general, stores that carry and offer at Wal-Mart will unilaterally exercise club stores as substantial competitors. retail a wide selection and deep market power; and by increasing the Studies also provide support for the inventory of food and grocery products likelihood of, or facilitating, collusion or inclusion of club stores in the relevant in a variety of brands and sizes, coordinated interaction, each of which product market. For example, a 2001 enabling consumers to purchase increases the likelihood that the prices study, based on ‘‘extensive in-home substantially all of their weekly food of food, groceries, or services will interviews among female heads of and grocery shopping requirements in a increase, and that the quality and household * * * throughout the single shopping visit. The determination selection of food, groceries or services island,’’ found that 37% of the subjects that club stores are included in the will decrease, in the relevant geographic spontaneously mentioned SAM’s Club relevant product market in this markets of Puerto Rico. when asked to identify a supermarket or proceeding does not, of course, IV. The Terms of the Agreement food retailer that operates in Puerto determine what the relevant product Containing Consent Orders Rico. The ‘‘brand awareness’’ of the four market will be in future supermarket The proposed consent order will leading supermarket operators (and investigations by the Commission. especially Amigo (with 72%) and remedy the Commission’s competitive Pueblo (with 58%)), was substantially The complaint alleges that the concerns about the proposed greater than that of SAM’s Club (with relevant sections of the United States acquisition. Under the terms of the 37%), but the smaller Puerto Rico (i.e., the geographic markets) in which proposed consent order, Proposed supermarket chains such as Ralph’s there are competitive problems related Respondents must divest four Amigo (with 6%), Supermercado Del Este (5%), to the acquisition are the areas of Puerto supermarkets, in Cidra, Ponce, Manati, and Plaza Gigante (5%) had Rico in and near Cayey and Cidra (the and Vega Baja, Puerto Rico. In each significantly less brand awareness ‘‘Cayey’’ market), Ponce and Juana Diaz region, Wal-Mart owns or plans to open among Puerto Rico consumers. That (the ‘‘Ponce’’ market), and Barceloneta, at least one supercenter or club store. same study found that 5% of Manati, and Vega Baja (the ‘‘Manati’’ The divestitures are to an up-front interviewees reported that SAM’s Club market). The Cayey, Ponce, and Manati newly-formed entity founded by was their ‘‘regular store’’ for their ‘‘large markets are highly concentrated, experienced supermarket owners which grocery shopping of the month.’’ That is whether measured by the Herfindahl- would be a new entrant in the relevant comparable to or greater than the Hirschman Index (commonly referred to geographic markets and which the numbers reported for Mr. Special (6%), as the ‘‘HHI’’) or by two-firm and four- Commission has evaluated for Supermercado Del Este (3%), and firm concentration ratios.1 The post- competitive and financial viability. The Ralph’s (4%). These findings are acquisition HHI in the Cayey market Commission’s evaluation process consistent with those of a recurring would increase 1,056 points, from 2,500 consisted of analyzing the financial consumer survey conducted by the to 3,556; in the Ponce market it would condition of the proposed acquirer to Puerto Rico food retailing trade increase 603 points, from 1,912 to 2,515; determine that it is well qualified to association. The 2001 study found that and in the Manati market, taking into operate the divested stores. 13% of consumers identified club stores account a Wal-Mart supercenter that Proposed Respondents will sell the as the place where they make their main will open shortly, it would increase four Amigo stores to Supermercados food purchases. 1,782 points, from 2,173 to 3,955. In the Maximo, Inc. (‘‘Purchaser’’), which is In Puerto Rico, retail stores other than Cayey market, Wal-Mart and Amigo headquartered in Hato Rey, Puerto Rico. full-service supermarkets, supercenters, would have a combined market share Purchaser includes as its founders and and club stores, such as limited greater than 47%; in the Ponce market, management two former long-time assortment stores, convenience stores, the parties’ combined market share members of Amigo’s board of directors. specialty food stores (e.g., seafood would exceed 38%; and in the Manati All of the managers at the four stores are markets, bakeries, etc.), military expected to remain in place (and each commissaries, and mass merchandise 1 The HHI is a measurement of market store is headed by management teams outlets (including those with pantries concentration calculated by summing the squares of that have worked together for over three not offering a wide selection and deep the individual market shares of all the participants. years). VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70955 The proposed consent order requires These are the areas from which the By direction of the Commission, that the divestitures occur no later than supermarkets to be divested draw Commissioner Anthony recused. ten business days after the acquisition is customers. The provisions regarding Donald S. Clark, consummated. However, if Proposed prior notice are consistent with the Secretary. Respondents consummate the terms used in prior Orders. The [FR Doc. 02–30084 Filed 11–26–02; 8:45 am] divestitures to Purchaser during the proposed consent order does not restrict BILLING CODE 6750–01–P public comment period, and if, at the the Proposed Respondents from time the Commission decides to make constructing new supermarkets, the order final, the Commission notifies supercenters, or club stores in the above DEPARTMENT OF HEALTH AND Proposed Respondents that Purchaser is areas; nor does it restrict the Proposed HUMAN SERVICES not an acceptable acquirer or that the Respondents from leasing facilities not asset purchase agreement with operated as supermarkets, supercenters, Public Meeting of the President’s Purchaser is not an acceptable manner or club stores within the previous six Council on Bioethics on December 12– of divestiture, then Proposed months. 13, 2002 Respondents must immediately rescind the transaction in question and divest The proposed consent order further AGENCY: The President’s Council on those assets to another buyer within prohibits Proposed Respondents, for a Bioethics, HHS. three months of the date the order period of ten years, from entering into ACTION: Notice. becomes final. At that time, Proposed or enforcing any agreement that restricts Respondents must divest those assets the ability of any person acquiring any SUMMARY: The President’s Council on only to an acquirer that receives the location or interest in any location used Bioethics will hold its eighth meeting, at prior approval of the Commission and as a supermarket, supercenter, or club which it will discuss, among other only in a manner that receives the prior store in Puerto Rico, to operate a things, current and future prospects for approval of the Commission. supermarket, supercenter, or club store genetic enhancements (presentation by The proposed consent order also at that site, if that site is or was formerly Dr. Francis Collins of the National enables the Commission to appoint a owned or operated by Proposed Human Genome Research Institute trustee to divest any supermarkets or Respondents in any of the above areas. [NHGRI]). Other topics will include: sites identified in the order that Technologies to increase the human The Proposed Respondents are Proposed Respondents have not lifespan (presentations by Dr. Steven required to file compliance reports with divested to satisfy the requirements of Austad, University of Idaho, and Dr. S. the Commission, the first of which is the order. In addition, the order enables Jay Olshansky, University of Chicago), the Commission to seek civil penalties due within thirty days of the date on and the possibility of overmedicating against Proposed Respondents for non- which Proposed Respondents signed the children with stimulants such as Ritalin compliance with the order. proposed consent order, and every (presentation by Dr. Lawrence H. Diller, The proposed consent order further thirty days thereafter until the University of California-San Francisco). requires Proposed Respondents to divestitures are completed, and The Council may also touch on issues maintain the viability of the annually for ten years. relating to organ donation and supermarkets identified for divestitures. V. Opportunity for Public Comment procurement. Subjects discussed by the Among other requirements related to Council at past meetings include: maintaining operations at these The proposed consent order has been Human cloning; embryonic stem cells; supermarkets, the proposed consent placed on the public record for thirty the patentability of human organisms; order specifically requires Proposed days for receipt of comments by enhancements of human mood, Respondents to: (1) Maintain the interested persons. Comments received memory, and muscles; choosing the sex viability, competitiveness, and during this period will become part of of children; and international models of marketability of the assets to be the public record. After thirty days, the biotech regulation. divested; (2) not cause the wasting or Commission will again review the DATES: The meeting will take place deterioration of the assets to be proposed consent order and the Thursday, December 12, 2002, from 9 divested; (3) not sell, transfer, comments received and will decide am to 5:15 pm ET; and Friday, encumber, or otherwise impair the whether it should withdraw from the December 13, 2002, from 8:30 am to 1 supermarkets’ marketability or viability; agreement or make the proposed pm ET. (4) maintain the supermarkets consent order final. consistent with past practices; (5) use ADDRESSES: Hotel Monaco, 700 F Street, best efforts to preserve the By accepting the proposed consent NW., Washington, DC 20004. supermarkets’ existing relationships order subject to final approval, the PUBLIC COMMENTS: The meeting agenda with suppliers, customers, and Commission anticipates that the will be posted at http:// employees; and (6) keep the competitive problems alleged in the www.bioethics.gov. Members of the supermarkets open for business and complaint will be resolved. The purpose public may submit written statements maintain the inventory at levels of this analysis is to invite public for the Council’s records. Please submit consistent with past practices. comment on the proposed consent statements to Ms. Diane Gianelli, The proposed consent order prohibits order, including the proposed sale of the Director of Communications (tel. 202/ Proposed Respondents from acquiring, supermarkets to Purchaser, in order to 296–4669 or e-mail [email protected]). without providing the Commission with aid the Commission in its determination The public may also express comments prior notice, any supermarket, of whether to make the proposed during the time set aside for this supercenter, or club store, or any consent order final. This analysis is not purpose, beginning at noon ET, on interest in any supermarket, intended to constitute an official Friday, December 13, 2002. Comments supercenter, or club store located in the interpretation of the proposed consent will be limited to no more than five municipalities that include Cayey, order nor is it intended to modify the minutes per speaker or organization. Cidra, Ponce, Juana Diaz, Barceloneta, terms of the proposed consent order in Please give advance notice of such Manati, and Vega Baja for ten years. any way. statements to Ms. Gianelli at the phone VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70956 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices number given above, and be sure to Dated: November 15, 2002. Center on Birth Defects and include name, affiliation, and a brief Nathan Stinson, Jr., Developmental Disabilities (NCBDDD), description of the topic or nature of the Deputy Assistant Secretary for Minority Centers for Disease Control and statement. Health. Prevention (CDC). [FR Doc. 02–30149 Filed 11–26–02; 8:45 am] FOR FURTHER INFORMATION CONTACT: Background BILLING CODE 4150–29–P Diane Gianelli, 202/296–4669, or visit The Division of Birth Defects and http://www.bioethics.gov. Developmental Disabilities, within Dated: November 20, 2002. DEPARTMENT OF HEALTH AND NCBDDD launched a national education Dean Clancy, HUMAN SERVICES campaign in January 1999 to increase women’s knowledge about neural tube Executive Director, The President’s Council Centers for Disease Control and birth defects (NTDs) and the beneficial on Bioethics. Prevention role folic acid, a B vitamin, plays in the [FR Doc. 02–30045 Filed 11–26–02; 8:45 am] [60 Day–03–18] prevention of NTDs. Studies show that BILLING CODE 4151–05–P a 50 to 70 percent reduction in the risk Proposed Data Collections Submitted of neural tube birth defects is possible for Public Comment and if all women capable of becoming DEPARTMENT OF HEALTH AND Recommendations pregnant consume 400 micrograms of HUMAN SERVICES folic acid daily both prior to and during In compliance with the requirement early pregnancy. Studies also indicate Notice of Meeting of the Advisory of section 3506(c)(2)(A) of the that Hispanic women have a greater risk Paperwork Reduction Act of 1995 for Committee on Minority Health for NTD-affected pregnancies than opportunity for public comment on women in the general population. AGENCY: Office of the Secretary, Office proposed data collection projects, the Centers for Disease Control and Specific, culturally sensitive, targeted of Public Health and Science, Office of media messages need to be directed at Minority Health. Prevention (CDC) will publish periodic summaries of proposed projects. To this population. ACTION: Notice. request more information on the CDC and the March of Dimes Birth proposed projects or to obtain a copy of Defects Foundation developed health The Advisory Committee on Minority the data collection plans and communication media messages and Health will meet on Thursday, instruments, call the CDC Reports educational materials targeted to health December 12, 2002 from 9 a.m. to 5 Clearance Officer on (404) 498–1210. care providers and English and Spanish- p.m., and Friday, December 13, 2002 Comments are invited on: (a) Whether speaking women. These media messages from 8:30 a.m.–12 Noon. The meeting the proposed collection of information and educational materials consist of will be held at the Hyatt Regency is necessary for the proper performance television and radio public service announcements (PSA), brochures and Bethesda, Lalique Room, One Bethesda of the functions of the agency, including resource manuals. The Spanish- Metro Center (Wisconsin Avenue at Old whether the information shall have practical utility; (b) the accuracy of the language folic acid communication Georgetown Road), Washington, DC, evaluation survey examines the impact 20814. agency’s estimate of the burden of the proposed collection of information; (c) of Spanish-language media messages on The Advisory Committee will discuss ways to enhance the quality, utility, and the levels of awareness, knowledge, and racial and ethnic disparities in health, clarity of the information to be vitamin use among Hispanic women of as well as, other related issues. collected; and (d) ways to minimize the childbearing age. The meeting is open to the public. burden of the collection of information Hispanic women’s exposure to There will be an opportunity for public on respondents, including through the Spanish-language media messages and comment, which will be limited to five use of automated collection techniques educational materials on folic acid minutes per speaker. Individuals who or other forms of information information will be collected and measured to determine whether these would like to submit written statements technology. Send comments to Seleda exposures influenced the women’s should mail or fax their comments to M. Perryman, CDC Assistant Reports knowledge and usage of folic acid. The the Office of Minority Health at least Clearance Officer, 1600 Clifton Road, number and frequency of women’s two business days prior to the meeting. MS–D24, Atlanta, GA 30333. Written comments should be received within 60 exposures to the media messages such For further information, please days of this notice. as television and radio PSAs will be contact Ms. Sheila P. Merriweather, collected from media channels and Rockwall II Building, 5515 Security Proposed Project compared to information collected from Lane, Suite 1000, Rockville, Maryland An Evaluation of Targeted Health survey data, National Council on Folic 20852. Phone: 301–443–9923; Fax: 301– Communication Message: Folic Acid Acid organizations and the National 443–8280. and Neural Tube Defects (OMB No. Clearinghouse on Folic Acid activities. 0920–0461)—Extension—The National The cost to participants will be $0. No. of re- Avg. burden/ Respondents No. of re- sponses/re- response (in Total burden spondents spondent hours) (in hours) Telephone Interview ...... 1,000 1 20/60 333 VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70957 Dated: November 22, 2002. clarity of the information to be Florida and who potentially will be Nancy E. Cheal, collected; and (d) ways to minimize the occupationally exposed to aerosolized Acting Associate Director for Policy, Planning burden of the collection of information red tide toxins some time during the and Evaluation, Centers for Disease Control on respondents, including through the year following recruitment. We plan to and Prevention. use of automated collection techniques administer a base-line respiratory health [FR Doc. 02–30218 Filed 11–26–02; 8:45 am] or other forms of information questionnaire and conduct pre- and BILLING CODE 4163–18–P technology. Send comments to Seleda post-shift pulmonary function tests M. Perryman, CDC Assistant Reports during a time when there is no red tide Clearance Officer, 1600 Clifton Road, reported near the area. When a red tide DEPARTMENT OF HEALTH AND MS–D24, Atlanta, GA 30333. Written develops, we plan to administer a HUMAN SERVICES comments should be received within 60 symptom survey and conduct days of this notice. pulmonary function testing (PFT) on a Centers for Disease Control and group of study participants who are Proposed Project: Prevention working in the area where the red tide [60 Day–03–19] Exposure to Aerosolized Brevetoxins is near shore and on a control group of During Red Tide Events (OMB No. study participants who are not working Proposed Data Collections Submitted 0920–0494)—Extension—National in an area where the red tide is near for Public Comment and Center for Environmental Health shore (i.e., are not exposed to the red Recommendations (NCEH), Centers for Disease Control and tide). We will then compare (1) In compliance with the requirement Prevention (CDC). symptom reports before and during the red tide and (2) the changes in baseline of section 3506(c)(2)(A) of the Background Paperwork Reduction Act of 1995 for PFT values during the work shift opportunity for public comment on Gymnodinium breve is the marine (differences between pre- and post-shift proposed data collection projects, the dinoflagellate responsible for extensive PFT results without exposure to red Centers for Disease Control and blooms (called ‘‘red tides’’) that form in tide) with the changes in PFT values Prevention (CDC) will publish periodic the gulf of Mexico. G. breve produces during the work shift when individuals summaries of proposed projects. To potent toxins, called brevetoxins, that are exposed to red tide. request more information on the have been responsible for killing In addition, we plan to assist in proposed projects or to obtain a copy of millions of fish and other marine collecting biological specimens the data collection plans and organisms. The biochemical activity of (inflammatory cells from nose and instruments, call the CDC Reports brevetoxins is not completely throat swabs) to assess whether they can Clearance Officer on (404) 498–1210. understood and there is very little be used to verify exposure and to Comments are invited on: (a) Whether information regarding human health demonstrate a biological effect (i.e., the proposed collection of information effects from environmental exposures, inflammatory response) from exposure is necessary for the proper performance such as inhaling brevetoxin that has to red tide. We have collected part of the of the functions of the agency, including been aerosolized and swept onto the data, but, because we are dealing with whether the information shall have coast by offshore winds. The National natural phenomena and are subject practical utility; (b) the accuracy of the Center for Environmental Health literally to the tides, we must extend our agency’s estimate of the burden of the (NCEH), Centers for Disease Control and data collection time for an additional proposed collection of information; (c) Prevention (CDC) is planning to recruit two years. There is no cost to ways to enhance the quality, utility, and 100 people who work along the coast of respondents. Average bur- No. of re- No. of re- den per re- Total burden Respondents spondents sponses per sponse (in (in hours) respondent hours) Pulmonary History Questionnaire ...... 100 1 20/60 33 Symptoms Questionnaire ...... 100 20 5/60 167 Nasal and Throat Swabs ...... 100 20 5/60 167 Pulmonary Function Tests ...... 100 20 20/60 667 Total ...... 1,034 Dated: November 22, 2002. DEPARTMENT OF HEALTH AND opportunity for public comment on Nancy E. Cheal, HUMAN SERVICES proposed data collection projects, the Acting Associate Director for Policy, Planning Centers for Disease Control and and Evaluation, Centers for Disease Control Centers for Disease Control and Prevention (CDC) will publish periodic and Prevention. Prevention summaries of proposed projects. To [FR Doc. 02–30219 Filed 11–26–02; 8:45 am] request more information on the [60 Day–03–17] proposed projects or to obtain a copy of BILLING CODE 4163–18–P the data collection plans and Proposed Data Collections Submitted instruments, call the CDC Reports for Public Comment and Clearance Officer on (404)498–1210. Recommendations Comments are invited on: (a) Whether In compliance with the requirement the proposed collection of information of Section 3506(c)(2)(A) of the is necessary for the proper performance Paperwork Reduction Act of 1995 for of the functions of the agency, including VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70958 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices whether the information shall have and financial burden of this significant addition, NIOSH has utilized the practical utility; (b) the accuracy of the public health problem.’’ In 2000, there capacity of NEISS to incorporate follow- agency’s estimate of the burden of the were 677 workplace homicides in the back surveys. Follow-back surveys proposed collection of information; (c) U.S. From 1993–1999, there were an allow collection of first-hand, detailed ways to enhance the quality, utility, and estimated 1.7 million nonfatal knowledge that does not exist in clarity of the information to be victimizations ‘‘while at work or on administrative or other records. CPSC collected; and (d) ways to minimize the duty’’ every year, accounting for 18% of routinely uses this mechanism to collect burden of the collection of information all violent crime during the 7-year information of various types of injuries on respondents, including through the period. In December 2001, Congress (e.g., fireworks-related injuries, injuries use of automated collection techniques directed NIOSH to develop an to children in baby walkers, etc.). or other forms of information intramural and extramural prevention NIOSH has used this mechanism to technology. CDC is requesting an research program that will target all collect information on the emergency clearance from OMB to aspects of workplace violence. circumstances of the injury, training, conduct this data collection. Written The Consumer Product Safety protective equipment (if appropriate), comments should be received within 14 Commission (CPSC) maintains a and other issues important to more fully days of this notice. Send written database of injuries treated in a comments to Anne O’Connor, CDC nationally representative sample of U.S. understand the risk factors for work- Assistant Reports Clearance Officer, hospital emergency departments (Eds) related injuries and to make appropriate 1600 Clifton Road, MS D–24, Atlanta, called the National Electronic Injury recommendations for preventing other Georgia 30333. OMB is expected to act Surveillance System (NEISS). Data such injuries in the future. on this request within 7 days of the routinely collected through NEISS The current proposed study will close of the comment period. include a brief narrative description of consist of a telephone interview survey Proposed Project: Work-Related the injury event and basic demographic of workers treated in NEISS hospital Eds Assaults Treated in Hospital Emergency information such as intent and for injuries sustained during a work- Departments—New—National Institute mechanism of injury, work-relatedness, related assault. The data collection will of Occupational Safety and Health principal diagnosis, part of the body occur over a one year period. CPSC will (NIOSH), Centers for Disease Control affected, location where the injury hire a contractor to conduct the actual and Prevention (CDC). Workplace occurred, involvement of consumer telephone interviews. NIOSH will violence, both fatal and nonfatal, is products, and disposition at ED review potential cases to identify those recognized as an important occupational discharge. For assaults, summary data cases that should be forwarded to the safety and health issue. Various data are also being collected in the contractor for interview. The survey systems have provided fairly detailed relationship of the perpetrator to the includes an extended narrative information on fatal workplace violence, injured person and the context (i.e., description of the injury incident as but much less is known about the altercation, robbery, sexual assault, etc.). well as items regarding general circumstances and risk factors for For work-related cases, occupation and workplace organization; personal nonfatal workplace violence. As well, a industry information is collected. The number of strategies have been data system does not include any characteristics of the worker; work tasks suggested for reducing the incidence information on issues such as the at the time of the assault; training on and severity of workplace violence in specific workplace circumstances and workplace violence risk factors and various settings (e.g., taxicabs, health risk factors for workplace violence; prevention strategies; security measures care, law enforcement, social services), security measures in the workplace and in place and how they impacted the but again, little empirical knowledge whether they were utilized/used outcome of the incident; and return to exists about what has been implemented appropriately; training-in-workplace work after the assault. This study will and what impact such strategies may violence risk factors and prevention provide critical information for have. The report, Workplace Violence: strategies; previous incidents of understanding the nature and impact of A Report to the Nation, published by the workplace violence; return-to-work after nonfatal assault among U.S. workers. In University of Iowa based on assault; and, other specific workplace combination with data collected from recommendations from a workshop of violence information. other sources, this information will experts, states, ‘‘* * * research focused For the last 10 years, NIOSH has been ultimately contribute to the prevention on a much broader understanding of the collaborating with CPSC to collect of violence in the workplace. The only scope and impact of workplace violence surveillance data on work-related cost to respondents is their time to is urgently needed to reduce the human injuries treated in the NEISS Eds. In participate in the data collection. Avg. bur- No. of re- No. of re- den/re- Total bur- Survey spondents sponses/re- sponse (in den (hours) spondent hrs.) Work-related assaults treated in hospital Eds ...... 1,600 1 20/60 533 Total ...... 533 VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70959 Dated: November 20, 2002. Comments are invited on: (a) Whether 1960 by the Division of Vital Statistics Nancy E. Cheal, the proposed collection of information of the National Center for Health Acting Associate Director for Policy, Planning is necessary for the proper performance Statistics, CDC. The collection of the and Evaluation Centers for Disease Control of the functions of the agency, including data is authorized by 42 U.S.C. 242k. and Prevention. whether the information shall have The National Vital Statistics Report [FR Doc. 02–30220 Filed 11–26–02; 8:45 am] practical utility; (b) the accuracy of the forms provide counts of monthly BILLING CODE 4163–18–P agency’s estimate of the burden of the occurrences of births, deaths, infant proposed collection of information; (c) deaths, marriages, and divorces. Similar ways to enhance the quality, utility, and data have been published since 1937 DEPARTMENT OF HEALTH AND clarity of the information to be and are the sole source of these data at HUMAN SERVICES collected; and (d) ways to minimize the the national level. The data are used by burden of the collection of information the Department of Health and Human Centers for Disease Control and on respondents, including through the Services and by other government, Prevention use of automated collection techniques academic, and private research and or other forms of information commercial organizations in tracking [60 Day–03–16] technology. Send comments to Anne changes in trends of vital events. O’Connor , CDC Assistant Reports Proposed Data Collections Submitted Clearance Officer, 1600 Clifton Road, Respondents for the Monthly Vital for Public Comment and MS–D24, Atlanta, GA 30333. Written Statistics Report Form (CDC 64.146) are Recommendations comments should be received within 60 registration officials in each State and days of this notice. Territory, the District of Columbia, and In compliance with the requirement Proposed Project: National Vital New York City. In addition, 60 local of Section 3506(c)(2)(A) of the Statistics Report Forms (OMB No. 0920– (county) officials in New Mexico who Paperwork Reduction Act of 1995 for 0213)—Extension—National Center for record marriages occurring and divorces opportunity for public comment on Health Statistics (NCHS), Centers for and annulments granted in each county proposed data collection projects, the Disease Control and Prevention (CDC). of New Mexico will use this Form. The Centers for Disease Control and data are routinely available in each Prevention (CDC) will publish periodic Background reporting office as a by-product of summaries of proposed projects. To The National Vital Statistics Report ongoing activities. This form is designed request more information on the Forms (0920–0213) is an approved to collect counts of monthly occurrences proposed projects or to obtain a copy of collection of the compilation of national of births, deaths, infant deaths, the data collection plans and vital statistics. This collection dates marriages, and divorces immediately instruments, call the CDC Reports back to the beginning of the 20th following the month of occurrence. Clearance Officer on (404) 498–1210. century and has been conducted since There are no costs to respondents. No. of re- Avg. burden/ Respondents to the form: Monthly Vital Statistics Report (CDC 64.146) No. of re- sponses/re- response (in Total burden spondents spondent hours) (in hours) State and Territory registration officials ...... 57 12 12/60 137 New Mexico County officials ...... 60 12 6/60 72 Total ...... 209 The Annual Marriage and Divorce or county officials about eight months Samoa. In addition, counts of marriages Statistical Report Form (CDC 64.147) after the end of the data year. The data will be collected from individual collects final annual counts of marriages are widely used by government, counties in New Mexico, and counts of and divorces by month for the United academic, private research, and divorces will be collected from States and for each State. The statistical commercial organizations in tracking individual counties in California, counts requested on this form differ changes in trends of family formation Colorado, Indiana, Louisiana, New from provisional estimates obtained on and dissolution. Mexico, and the boroughs of New York the Monthly Vital Statistics Report Form Respondents for the Annual Marriage City due to a lack of centralized in that they represent complete and and Divorce Statistical Report Form are complete collections in these final counts of marriages, divorces, and registration officials in each State, the registration areas. The data are routinely annulments occurring during the District of Columbia, New York City, available in each reporting office as a months of the prior year. These final Guam, Puerto Rico, Virgin Islands, by-product of ongoing activities. counts are usually available from State Northern Marianas, and American Avg. bur- No. of re- No. of re- den/re- Total bur- Respondents spondents sponses/re- sponse (in den (in spondent hours) hours) State/Territory/City registration officials ...... 56 1 30/60 28 County/Borough officials ...... 348 1 30/60 174 Total ...... 202 VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70960 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Dated: November 20, 2002. the proposal by name and/or OMB techniques or other forms of information Nancy E. Cheal, Control Number and should be sent to: technology, e.g., permitting electronic Acting Associate Director for Policy, Planning Reports Liaison Officer, Office of Policy submission of responses. and Evaluation, Centers for Disease Control Development and Research, Department This Notice also lists the following and Prevention. of Housing and Urban Development, information: [FR Doc. 02–30221 Filed 11–26–02; 8:45 am] 451 7th Street, SW., Room 8228, Title of Proposal: Notice of Funding BILLING CODE 4163–18–P Washington, DC 20410–6000. Availability and Application Kit for the FOR FURTHER INFORMATION CONTACT: Community Outreach Partnership Susan Brunson, 202–708–3061, ext. Center Program. OMB Control Number: DEPARTMENT OF HOUSING AND 3852 (this is not a toll-free number), for 2528–0180 (exp. 02/28/03). copies of the proposed forms and other URBAN DEVELOPMENT Description of the Need for the available documents. [Docket No. FR–4737–N–10] Information and Proposed Use: The SUPPLEMENTARY INFORMATION: The information is being collected to select Notice of Proposed Information Department of Housing and Urban applicants for award in this statutorily Collection for Public Comment: Notice Development will submit the proposed created competitive grant program and of Funding Availability and Application extension of information collection to to monitor performance of grantees to Kit for the Community Outreach OMB for review, as required by the ensure they meet statutory and program Partnership Center (COPC) Program Paperwork Reduction Act of 1995 (44 goals and requirements. U.S.C. Chapter 35, as amended). AGENCY: Office of the Assistant This Notice is soliciting comments Agency Form Numbers: HUD–424–M, Secretary for Public Development and from members of the public and affected HUD–424–B, HUD–424D, HUD–424– Research, HUD. agencies concerning the proposed CB, HUD–2880, HUD–2990, HUD–2991, ACTION: Notice. collection of information to: (1) Evaluate HUD–2992, HUD2993, HUD–2994, whether the proposed collection of HUD–3001, HUD–3002, HUD–30011, SUMMARY: The proposed information information is necessary for the proper HUD–30012, HUD–50070, HUD–50071. collection requirement described below performance of the functions of the Members of the Affected Public: will be submitted to the Office of agency, including whether the Community colleges, four-year colleges, Management and Budget (OMB) for information will have practical utility; and universities. review, as required by the Paperwork (2) evaluate the accuracy of the agency’s Estimation of the total number of Reduction Act. The Department is estimate of the burden of the proposed hours needed to prepare the information soliciting public comments on the collection of information; (3) enhance collection including number of subject proposal. the quality, utility, and clarity of the respondents, frequency of response, and DATES: Comment Due Date January 27, information to be collected; and (4) hours of response: Information pursuant 2003. minimize the burden of the collection of to grant award will be submitted once ADDRESSES: Interested persons are information on those who are to a year. The following chart details the invited to submit comments regarding respond; including through the use of respondent burden on an annual and this proposal. Comments should refer to appropriate automated collection semi-annual basis: Number of re- Total annual Hours per re- spondents responses sponse Total hours Applicants ...... 135 135 40 5400 Semi-Annual Reports ...... 25 50 6 300 Final Reports ...... 25 25 8 200 Recordkeeping ...... 25 25 5 125 Total ...... 59 6025 Status of the proposed information DEPARTMENT OF HOUSING AND soliciting public comments on the collection: Pending OMB approval. URBAN DEVELOPMENT subject proposal. Authority: Section 3506 of the Paperwork DATES: Comments Due Date: December Reduction Act of 1995, 44 U.S.C. Chapter 35, [Docket No. FR–4734–N–72] 27, 2002. as amended. ADDRESSES: Interested persons are Notice of Submission of Proposed invited to submit comments regarding Dated: November 14, 2002. Information Collection to OMB: Harold L. Bunce, this proposal. Comments should refer to Mortgagee’s Request for Extension of the proposal by name and/or OMB Deputy Assistant Secretary for Economic Time Control Number (2502–0436) and Affairs. should be sent to: Lauren Wittenberg, [FR Doc. 02–30014 Filed 11–26–02; 8:45 am] AGENCY: Office of the Chief Information Officer, HUD. OMB Desk Officer, Office of BILLING CODE 4210–62–P Management and Budget, Room 10235, ACTION: Notice. New Executive Office Building, Washington, DC 20503; Fax number SUMMARY: The proposed information (202) 395–6974; E-mail collection requirement described below [email protected]. has been submitted to the Office of Management and Budget (OMB) for FOR FURTHER INFORMATION CONTACT: review, as required by the Paperwork Wayne Eddins, Reports Management Reduction Act. The Department is Officer, Department of Housing and VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70961 Urban Development, 451 7th, description of the need for the Title of Proposal: Mortgagee’s Request Southwest, Washington, DC 20410; e- information and its proposed use; (5) for Extension of Time. _ mail Wayne [email protected], the agency form number, if applicable; OMB Approval Number: 2502–0436. telephone (202) 708–2374. This is not a (6) what members of the public will be toll-free number. Copies of the proposed affected by the proposal; (7) how Form Numbers: HUD–50012. forms and other available documents frequently information submissions will Description of the Need for the submitted to OMB may be obtained be required; (8) an estimate of the total Information and its Proposed Use: from Mr. Eddins. number of hours needed to prepare the Information is used as a ‘‘turnaround’’ information submission including document by mortgage lenders to SUPPLEMENTARY INFORMATION: The number of respondents, frequency of request an extension of time and for Department will submit the proposed response, and hours of response; (9) HUD to provide a response. Mortgagee’s information collection to OMB for whether the proposal is new, an maintain copies of the information review, as required by the Paperwork extension, reinstatement, or revision of collection with related claim documents Reduction Act of 1995 (44 U.S.C. an information collection requirement; to verify that HUD has authorized Chapter 35, as amended). The Notice and (10) the name and telephone extensions of time on specific cases. lists the following information: (1) The number of an agency official familiar title of the information collection with the proposal and of the OMB Desk Respondents: Business or other for- proposal; (2) the office of the agency to Officer for the Department. profit. collect the information; (3) the OMB This Notice also lists the following Frequency of Submission: On approval number, if applicable; (4) the information: occasion. Number of re- Annual re- × Hours per re- = Burden hours spondents sponses sponse Reporting Burden: ...... 2,000 6 0.25 3,000 Total Estimated Burden Hours: 3,000. of this notice to: U.S. Fish and Wildlife for the purpose of enhancement of the Status: Reinstatement, without Service, Division of Management survival of the species. change. Authority, 4401 North Fairfax Drive, PRT–065002 Authority: Section 3507 of the Paperwork Room 700, Arlington, Virginia 22203; Reduction Act of 1995, 44 U.S.C. 35, as fax 703/358–2281. Applicant: Harry M. Morley, Rockledge, amended. FOR FURTHER INFORMATION CONTACT: FL Dated: November 21, 2002. Division of Management Authority, The applicant requests a permit to telephone 703/358–2104. Wayne Eddins, import the sport-hunted trophy of one SUPPLEMENTARY INFORMATION: Departmental Reports Management Officer, male bontebok (Damaliscus pygargus dorcas) culled from a captive herd Office of the Chief Information Officer. Endangered Species [FR Doc. 02–30013 Filed 11–26–02; 8:45 am] maintained under the management The public is invited to comment on program of the Republic of South Africa BILLING CODE 4210–72–P the following application(s) for a permit for the purpose of enhancement of the to conduct certain activities with survival of the species. endangered species. This notice is The U.S. Fish and Wildlife Service DEPARTMENT OF THE INTERIOR provided pursuant to Section 10(c) of has information collection approval the Endangered Species Act of 1973, as from OMB through March 31, 2004, Fish and Wildlife Service amended (16 U.S.C. 1531, et seq.). OMB Control Number 1018–0093. Written data, comments, or requests for Receipt of Applications for Permit Federal Agencies may not conduct or copies of these complete applications sponsor and a person is not required to AGENCY: Fish and Wildlife Service, should be submitted to the Director respond to a collection of information Interior. (address above). unless it displays a current valid OMB ACTION: Notice of receipt of applications PRT–053987 control number. for permit. Applicant: The Phoenix Zoo, Phoenix, Dated: November 15, 2002. Lisa J. Lierheimer, SUMMARY: The public is invited to AZ comment on the following applications The applicant requests a permit to Permits Policy Specialist, Branch of Permits, to conduct certain activities with export one ocelot (Leopardus pardalis Division of Management Authority. endangered species and/or marine mitis) to the Granby Zoo, Granby, [FR Doc. 02–30125 Filed 11–26–02; 8:45 am] mammals. Quebec, Canada, for the purpose of BILLING CODE 4310–55–P enhancement of the survival of the DATES: Written data, comments or species through captive propagation. requests must be received by December DEPARTMENT OF THE INTERIOR 27, 2002. PRT–064861 ADDRESSES: Documents and other Applicant: Donald D. Gasaway, Marion, Fish and Wildlife Service information submitted with these IL applications are available for review, The applicant requests a permit to Receipt of Applications for Permit subject to the requirements of the import the sport-hunted trophy of one AGENCY: Fish and Wildlife Service, Privacy Act and Freedom of Information male bontebok (Damaliscus pygargus Interior. Act, by any party who submits a written dorcas) culled from a captive herd ACTION: Notice of receipt of applications request for a copy of such documents maintained under the management for permit. within 30 days of the date of publication program of the Republic of South Africa VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70962 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices SUMMARY: The public is invited to previously authorized under PRT– PRT–064354 comment on the following applications 007873. Applicant: John L. Wathen, to conduct certain activities with The U.S. Fish and Wildlife Service Leonardtown, MD endangered species and/or marine has information collection approval The applicant requests a permit to mammals. from OMB through March 31, 2004, import the sport-hunted trophy of one OMB Control Number 1018–0093. DATES: Written data, comments or male bontebok (Damaliscus pygargus Federal Agencies may not conduct or requests must be received by December dorcas) culled from a captive herd sponsor and a person is not required to 27, 2002. maintained under the management respond to a collection of information program of the Republic of South Africa ADDRESSES: Documents and other unless it displays a current valid OMB for the purpose of enhancement of the information submitted with these control number. applications are available for review, survival of the species. Dated: October 25, 2002. subject to the requirements of the PRT–064887 Privacy Act and Freedom of Information Michael S. Moore, Act, by any party who submits a written Senior Permit Biologist, Branch of Permits, Applicant: John W. Salevurakis, request for a copy of such documents Division of Management Authority. Mountainaire, AZ within 30 days of the date of publication [FR Doc. 02–30128 Filed 11–26–02; 8:45 am] The applicant requests a permit to of this notice to: U.S. Fish and Wildlife BILLING CODE 4310–55–P import the sport-hunted trophy of one Service, Division of Management male wood bison (Bison bison Authority, 4401 North Fairfax Drive, athabascae) taken from the Yukon Room 700, Arlington, Virginia 22203; DEPARTMENT OF THE INTERIOR (Nisling river) population, Yukon fax 703/358–2281. territory, Canada, for the purpose of Fish and Wildlife Service enhancement of the survival of the FOR FURTHER INFORMATION CONTACT: species through support of the Canadian Division of Management Authority, Receipt of Applications for Permit telephone 703/358–2104. recovery program. AGENCY: Fish and Wildlife Service, SUPPLEMENTARY INFORMATION: Marine Mammals Interior. The public is invited to comment on Endangered Species ACTION: Notice of receipt of applications the following application(s) for a permit for permit. The public is invited to comment on to conduct certain activities with marine the following application(s) for a permit SUMMARY: The public is invited to mammals. The application(s) was to conduct certain activities with comment on the following applications submitted to satisfy requirements of the endangered species. This notice is to conduct certain activities with Marine Mammal Protection Act of 1972, provided pursuant to Section 10(c) of endangered species and/or marine as amended (16 U.S.C. 1361 et seq.) and the Endangered Species Act of 1973, as mammals. the regulations governing marine amended (16 U.S.C. 1531, et seq.). mammals (50 CFR part 18). Written DATES: Written data, comments, or requests for Written data, comments or data, comments, or requests for copies copies of these complete applications requests must be received by December of the complete applications or requests should be submitted to the Director 27, 2002. for a public hearing on these (address above). ADDRESSES: Documents and other applications should be submitted to the information submitted with these PRT–064033 Director (address above). Anyone applications are available for review, requesting a hearing should give Applicant: Charles D. Lein, Lafayette, subject to the requirements of the specific reasons why a hearing would be LA Privacy Act and Freedom of Information appropriate. The holding of such a The applicant requests a permit to Act, by any party who submits a written hearing is at the discretion of the import the sport-hunted trophy of one request for a copy of such documents Director. male bontebok (Damaliscus pygargus within 30 days of the date of publication dorcas) culled from a captive herd of this notice to: U.S. Fish and Wildlife PRT–063596 maintained under the management Service, Division of Management Applicant: William J. Schagel, Prescott, program of the Republic of South Africa, Authority, 4401 North Fairfax Drive, MI for the purpose of enhancement of the Room 700, Arlington, Virginia 22203; The applicant requests a permit to survival of the species. fax 703/358–2281. import a polar bear (Ursus maritimus) FOR FURTHER INFORMATION CONTACT: PRT–063767 Through 063773 sport hunted from the Southern Division of Management Authority, Beaufort Sea polar bear population in Applicant: Feld Entertainment, Vienna, telephone 703/358–2104. Canada for personal use. VA SUPPLEMENTARY INFORMATION: PRT–063898 The applicant requests permits to export, re-export, and re-import Asian Endangered Species Applicant: Larry Seiler, Guilford, IN elephants (Elephas maximus) to and The public is invited to comment on The applicant requests a permit to from worldwide locations to enhance the following application(s) for a permit import a polar bear (Ursus maritimus) the survival of the species through to conduct certain activities with sport hunted from the Southern conservation education. This endangered species. This notice is Beaufort Sea polar bear population in notification covers activities conducted provided pursuant to Section 10(c) of Canada for personal use. by the applicant over a three-year the Endangered Species Act of 1973, as PRT–064723 period. The elephants are: Bonnie— amended (16 U.S.C. 1531, et seq.). 063767, Juliette—063768, Kelly Ann— Written data, comments, or requests for Applicant: David M. McNeil, Buhl, AL 063769, Angelica—063770, Doc— copies of these complete applications The applicant requests a permit to 063771, Nichole—063772, Osgood— should be submitted to the Director import a polar bear (Ursus maritimus) 063773. Some of these elephants were (address above). sport hunted from the Southern VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70963 Beaufort Sea polar bear population in (PRT–058229) to import one polar bear Northeast region is defined to include Canada for personal use. (Ursus maritimus) taken from the the jurisdictions of the states of Maine, The U.S. Fish and Wildlife Service Viscount Melville Sound polar bear New Hampshire, Vermont, has information collection approval population, Canada, for personal use. Massachusetts, Rhode Island, from OMB through March 31, 2004, Notice is hereby given that on Connecticut, and New York. The OMB Control Number 1018–0093. November 4, 2002, as authorized by the Northeast Regional Panel will discuss Federal Agencies may not conduct or provisions of the Marine Mammal several topics at this meeting including: sponsor and a person is not required to Protection Act of 1972, as amended (16 Updates from provinces and states; respond to a collection of information U.S.C. 1361 et seq.) the Fish and review of reports from subcommittees unless it displays a current valid OMB Wildlife Service issued the requested on Communication, Education, and control number. permit subject to certain conditions set Outreach, Policy and Legislation, and Dated: November 8, 2002. forth therein. Science Technology; discussion on the Lisa J. Lierheimer, Dated: November 8, 2002. development of a rapid response system, a ballast water regional Permits Policy Specialist, Branch of Permits, Lisa J. Lierheimer, management plan, and data Division of Management Authority. Permits Policy Specialist, Branch of Permits, management; updates from the Aquatic [FR Doc. 02–30126 Filed 11–26–02; 8:45 am] Division of Management Authority. Nuisance Species Task Force and [FR Doc. 02–30127 Filed 11–26–02; 8:45 am] BILLING CODE 4310–55–P National Invasive Species Council on BILLING CODE 4310–55–P national issues, reauthorization of the DEPARTMENT OF THE INTERIOR National Aquatic Invasive Species Act; DEPARTMENT OF THE INTERIOR updates on the development of State Fish and Wildlife Service ANS Management Plans; and other Fish and Wildlife Service topics. Issuance of Permit for Marine Minutes of the meeting will be Mammals Aquatic Nuisance Species Task Force maintained by the Executive Secretary, Northeast Regional Panel Meeting Aquatic Nuisance Species Task Force, AGENCY: Fish and Wildlife Service, Suite 810, 4401 North Fairfax Drive, Interior. AGENCY: Fish and Wildlife Service, Arlington, Virginia 22203–1622, and ACTION: Notice of issuance of permit for Interior. will be available for public inspection marine mammals. ACTION: Notice of meeting. during regular business hours, Monday through Friday. SUMMARY: The following permits were SUMMARY: This notice announces issued. meeting of the Aquatic Nuisance Dated: November 15, 2002. Species (ANS) Task Force Northeast William E. Knapp, ADDRESSES: Documents and other Regional Panel. The meeting topics are Acting Co-Chair, Aquatic Nuisance Species information submitted for these identified in the SUPPLEMENTARY Task Force, Deputy Assistant Director- applications are available for review by INFORMATION. Fisheries & Habitat Conservation. any party who submits a written request [FR Doc. 02–30010 Filed 11–26–02; 8:45 am] to the U.S. Fish and Wildlife Service, DATES: The Northeast Regional Panel BILLING CODE 4310–55–M Division of Management Authority, will meet from 12 p.m. to 5:30 p.m. on 4401 North Fairfax Drive, Room 700, Monday, December 16, 2002, and 8:30 Arlington, Virginia 22203; fax (703) a.m. to 3 p.m., Tuesday, December 17, DEPARTMENT OF THE INTERIOR 358–2281. 2002. FOR FURTHER INFORMATION CONTACT: ADDRESSES: The Northeast Regional Bureau of Indian Affairs Division of Management Authority, Panel meeting will be held at the telephone 703/358–2104. Northeast Regional Office of the U.S. Proposed Agency Information Collection; Request for Comments SUPPLEMENTARY INFORMATION: On Fish and Wildlife Service, 300 Westgate September 10, 2002, a notice was Center Drive, Hadley, MA 01035–9589. AGENCY: Bureau of Indian Affairs, published in the Federal Register (67 Phone 413–253–8404. Interior. FR 57445), that an application had been FOR FURTHER INFORMATION CONTACT: ACTION: Notice. filed with the Fish and Wildlife Service Susan Snow-Cotter, 617–626–1202 or by Hobson Reynolds for a permit (PRT– Sharon Gross, Executive Secretary, SUMMARY: In compliance with the 061098) to import one polar bear (Ursus Aquatic Nuisance Species Task Force at Paperwork Reduction Act, the maritimus) taken from the Lancaster 703–358–2308. Department of the Interior is seeking Sound polar bear population, Canada, SUPPLEMENTARY INFORMATION: Pursuant extension of an Information Collection for personal use. to section 10(a)(2) of the Federal Request (ICR) for grantees participating Notice is hereby given that on Advisory Committee Act (5 U.S.C. in the Public Law 102–477 program, November 6, 2002, as authorized by the App.I), this notice announces a meeting OMB Control No. 1076–0135. The provisions of the Marine Mammal of the Aquatic Nuisance Species Task Department invites public comments on Protection Act of 1972, as amended (16 Force Northeast Regional Panel. The the subject proposal described below. U.S.C. 1361 et seq.) the Fish and Task Force was established by the DATES: Submit written comments Wildlife Service issued the requested Nonindigenous Aquatic Nuisance regarding this proposal on or before permit subject to certain conditions set Prevention and Control Act of 1990. The January 27, 2003. forth therein. Northeast Regional Panel was ADDRESSES: Mail comments to George On August 20, 2002, a notice was established on July 25, 2001, to advise Gover, Director, Office of Economic published in the Federal Register (67 and make recommendations to the Development, Bureau of Indian Affairs, FR 53960), that an application had been Aquatic Nuisance Species Task Force on Department of the Interior, 1849 C filed with the Fish and Wildlife Service issues relating to the Northeast region of Street, NW., MS–4640–MIB, by Lawrence P. Rudolph for a permit the United States. Geographically, the Washington, DC 20240. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70964 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices FOR FURTHER INFORMATION CONTACT: reports and instructions must be forms were modified once to Requests for additional information or completed by tribes annually for the accommodate the Department of Labor’s copies of the information collection Bureau of Indian Affairs General Welfare-to-Work program. instructions should be directed to Lynn Assistance program for determination of Comments may include: Forcia, Office of Economic allocation of funds. Therefore, tribes (a) Whether the collection of Development, Bureau of Indian Affairs, participating in Public Law 102–477 information is necessary for the proper Department of the Interior, 1849 C currently experience a 50 percent performance of the functions of the Street, NW., MS–4640–MIB, reduction in reporting forms and bureau, including whether the Washington, DC 20240, at (202)–219– instructions than if they implemented information will have practical utility; 5270 (This is not a toll-free number). all programs separately. This reduction (b) The accuracy of the bureau’s SUPPLEMENTARY INFORMATION: is consistent with the Paperwork estimate of the burden of the collection Reduction Act and goals of the National I. Abstract of information, including the validity of Performance Review. the methodology and assumptions used; The information collection is needed The statistical report and narrative (c) The quality, utility, and clarity of to document satisfactory compliance report will be used to demonstrate how the information to be collected; and with statutory requirements of the well a plan was executed in comparison (d) How to minimize the burden of various integrated programs. Public Law to its proposed goals. This one page, the collection of information on those 102–477 authorizes tribal governments universal report plus narrative satisfies who are to respond, including the use to integrate federally funded requirements of the Department of of appropriate automated electronic, employment, training and related Health and Human Services, mechanical, or other forms of services programs into a single, Department of Labor and the information technology. coordinated, comprehensive service Department of the Interior. delivery plan. Funding agencies include The financial status report will be Comments should refer to the the Department of the Interior, used to track cash flow, and will allow proposal by name and/or OMB Control Department of Labor and the an analysis of activities versus Number and should be sent to Lynn Department of Health and Human expenditures and expenditures to Forcia, Bureau of Indian Affairs, Services. The Bureau of Indian Affairs is approved budget. It is a slightly Department of the Interior, 1849 C statutorily required to serve as the lead modified SF–269–A (short form). Street, NW., MS–4660–MIB, agency. Section 11 of this Act requires These two report forms and the Washington, DC 20240. Tribal that the Secretary of the Interior make narrative satisfy requirements of the consultation will be also be sought in available a single universal report Department of Health and Human January at the next regularly scheduled format which shall be used by a tribal Services, Department of Labor and the Public Law 102–477 Tribal Work Group government to report on integrated Department of the Interior. The revised meeting to be held in Washington, DC. activities and expenditures undertaken. forms reduce the burden on tribal All written comments, names and The Bureau of Indian Affairs shares the governments by consolidating data addresses of commentators will be information collected from these reports collection for employment, training, available for public inspection in Room with the Department of Labor and education, child care and related service 4644 of the Main Interior Building, 1849 Department of Health and Human programs. The reports are due annually. C Street, NW., Washington, DC from 9 Services. These forms, developed within a a.m. until 3 p.m., Monday through Friday, excluding legal holidays. If you II. Method of Collection partnership between participating tribes and representatives of all three Federal want us to withhold your name and Public Law 102–477 grantees are agencies, standardize terms and address you must state that prominently required to complete a single universal definitions, eliminate duplication and at the beginning of your comment. We report format including the annual reduce frequency of collection. will honor your request to the extent submission of two single page, one- allowable by law. Please note that an sided report forms and one narrative III. Data agency may not conduct or sponsor, and report, using five pages of instructions. Title: A Reporting System for Public a person is not required to respond to, This reporting format was initially Law 102–477 Demonstration Project. an information collection request that developed in 1993 and replaced 166 OMB Control Number: 1076–0135. does not have a currently valid pages of instructions and forms Respondents: Tribes participating in expiration date. representing three different agencies Public Law 102–477 will report Dated: November 18, 2002. with related employment, training, annually. As of October 1, 2002, we education and welfare reform programs. anticipate there will be 48 grantees Neal A. McCaleb, Federal partners have now further representing approximately 220 Assistant Secretary—Indian Affairs. reduced their reporting requirements for federally-recognized tribes participating [FR Doc. 02–30019 Filed 11–26–02; 8:45 am] the separate programs and now require in the program. BILLING CODE 4310–4M–P approximately 142 pages of instructions Burden: We estimate that completion and forms total each year. The Public of the reporting requirements will Law 102–477 initiative requires five require 16 hours per year to complete DEPARTMENT OF THE INTERIOR pages per year of forms and instructions. for each grantee. The total hour burden Bureau of Indian Affairs All tribes must also review instructions will be 768 hours. and complete annually approximately Tribal Self-Governance Program 62 pages of Department of Health and IV. Request for Comments Information Collection Human Services, Temporary Assistance The existing reporting procedure was to Needy Families (TANF), program initially developed in 1993 with the AGENCY: Bureau of Indian Affairs, forms and instructions. We have not active participation from Department of Interior. been able to successfully integrate Labor, Department of Health and ACTION: Proposed Agency Information TANF reporting with Public Law 102– Human Services and tribal Collection Activities; Comment Request. 477 reporting. In addition, four pages of representatives. Since that time, the VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70965 SUMMARY: The Bureau of Indian Affairs Dated: November 20, 2002. proposed collection of information, is seeking comments from the public on Neal A. McCaleb, including the validity of the an extension of an information Assistant Secretary—Indian Affairs. methodology and assumptions used; collection from potential Self- [FR Doc. 02–30092 Filed 11–26–02; 8:45 am] (3) Enhance the quality, utility, and Governance Tribes, as required by the BILLING CODE 4310–W8–P clarity of the information to be Paperwork Reduction Act. The collected; and information collected under OMB (4) Minimize the burden of the Clearance Number, 1076–0143, will be DEPARTMENT OF JUSTICE collection of information on those who used to establish requirements for entry are to respond, including through the into the pool of qualified applicants for Office of Community Oriented Policing use of appropriate automated, self-governance, to provide information Services electronic, mechanical, or other for awarding grants, and to meet technological collection techniques or reporting requirements of the Self- Agency Information Collection other forms of information technology, Governance Act. Activities: Proposed Collection; e.g., permitting electronic submission of DATES: Submit comments on or before Comments Requested responses. January 27, 2003. ACTION: 30-day notice of information Overview of This Information ADDRESSES: Written comments can be collection under review: New Collection sent to William Sinclair, Office of Self- Methamphetamine Project Status Governance, 1849 C Street, NW., Mail Update Report (SUR). (1) Types of Information Collection: Stop 2548 MIB, Washington, DC 20240. New Collection. FOR FURTHER INFORMATION CONTACT: The Department of Justice (DOJ), (2) Title of the Form/Collection: William Sinclair, (202) 219–0244. Office of Community Oriented Policing Methamphetamine Project Status Services has submitted the following SUPPLEMENTARY INFORMATION: You are Update Report (SUR). information collection request to the advised that an agency may not conduct (3) Agency form number, if any, and Office of Management and Budget or sponsor, and a person is not required the applicable component of the (OMB) for review and approval in to respond to, a collection of Department of Justice sponsoring the accordance with the Paperwork information that does not display a collection: Form Number: None. U.S. Reduction Act of 1995. The proposed valid OMB clearance number. For Department of Justice Office of information collection is published to example, this collection is listed by Community Oriented Policing Services obtain comments from the public and OMB as 1076–0143, and it expires 03/ (COPS). affected agencies. The proposed 31/2003. The response is voluntary to information collection was previously (4) Affected public who will be asked obtain or retain a benefit. published in the Federal Register or required to respond, as well as a brief We are requesting comments about Volume 67, Number 177, page 57851 on abstract: Primary: Law Enforcement the proposed collection to evaluate: September 12, 2002, allowing for a 60 Agencies. Other: Universities and (a) The accuracy of the burden hours, day comment period Private Non-Profit Agencies. Abstract: including the validity of the The purpose of this notice is to allow The information collected will be used methodology used and assumptions for an additional 30 days for public by the COPS Office to determine made, comment until December 27, 2002. This grantee’s progress toward grant (b) The necessity of the information process is conducted in accordance with implementation and for compliance for proper performance of the bureau 5 CFR 1320.10. monitoring efforts. functions, including its practical utility, Written comments and/or suggestions (5) An estimate of the total number of (c) The quality, utility, and clarity of regarding the items contained in this respondents and the amount of time the information to be collected, notice, especially the estimated public estimated for an average respondent to (d) Suggestions to reduce the burden burden and associated response time, respond: There will be an estimated 100 including use of automated, electronic, should be directed to the Office of responses for grantees. The estimated mechanical, or other forms of Management and Budget, Office of amount of time required for the average information technology. Information and Regulatory Affairs, respondent to respond is 3.0 hours. Please submit your comments to the Attention Department of Justice Desk (6) An estimate of the total public person listed in the ADDRESSES section. Office, Washington, DC 20503. burden (in hours) associated with the Please note that comments, names and Additionally, comments may be collection: There are an estimated 325 addresses of commentators, are open for submitted to OMB via facsimile to hours associated with this information public review during (regular business (202)–395–7285. collection. hours). If you wish your name and Request written comments and If additional information is required address withheld, you must state this suggestions from the public and affected contact: Mrs. Brenda E. Dyer, Deputy prominently at the beginning of your agencies concerning the proposed Clearance Officer, United States comments. We will honor your request collection of information are Department of Justice, Information to the extent allowable by law. encouraged. Your comments should Management and Security Staff, Justice Type of review: Renewal. address one or more of the following Management Division, Suite 1600, Title: Tribal Self-Governance four points: Patrick Henry Building, 601 D Street Program, 25 CFR 1000. (1) Evaluate whether the proposed NW., Washington, DC 20530. Affected Entities: Tribes and tribal collection of information is necessary consortiums wishing to enter into a self- for the proper performance of the Dated: November 21, 2002. governance compact. functions of the agency, including Brenda E. Dyer, Size of Respondent Pool: 257. whether the information will have Department Deputy Clearance Officer, United Number of Annual Responses 257. practical utility; States Department of Justice. Hours per response: 42. (2) Evaluate the accuracy of the [FR Doc. 02–30152 Filed 11–26–02; 8:45 am] Total Annual Hours: 10,766. agencies estimate of the burden of the BILLING CODE 4410–AT–M VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70966 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices DEPARTMENT OF JUSTICE are to respond, including through the States District Court for the Northern use of appropriate automated, District of West Virginia. Office of Community Oriented Policing electronic, mechanical, or other The consent decrees resolve the Services technological collection techniques or United States’ claims against James R. other forms of information technology, Chaplin and other defendants named in Agency Information Collection e.g.,, permitting electronic submission the complaint, pursuant to sections Activities: Proposed Collection; of responses. 309(b) and (d) of the Clean Water Act, Comments Requested 33 U.S.C. 1319(b) and (d). At the time Overview of This Information the complaint was filed, the defendants ACTION: 30-day notice of information Collection owned and operated five apartment collection under review: new complexes and previously constructed methamphetamine project, final update (1) Type of Information Collection: two single family housing subdivisions, report (FUR). New Collection. (2) Title of the Form/Collection: all located in the northern part of West The Department of Justice (DOJ), Methamphetamine Project, Final Update Virginia. Defendants operated a Office of Community Oriented Policing Report (FUR). wastewater treatment and disposal Services has submitted the following (3) Agency form number, if any, and facility (‘‘facility’’ or ‘‘facilities’’) at each information collection request to the the applicable component of the apartment complex and subdivision. Office of Management and Budget Department of Justice sponsoring the One consent decree with the (OMB) for review and approval in collection: Form Number: None. U.S. defendants resolves the United States’ accordance with the Paperwork Department of Justice, Office of claims that the defendants (a) Reduction Act of 1995. The proposed Community Oriented Policing Services discharged wastewater containing information collection is published to (COPS). pollutants above limitations in applicable permits, (a) failed to properly obtain comments from the public and (4) Affected public who will be asked operate and maintain the facilities, and affected agencies. This proposed or required to respond, as well as a brief (c) discharged pollutants from one information collection was previously abstract: Primary: Law Enforcement facility without a proper permit. Under published in the Federal Register Agency. Other: Universities and Private this consent decree, the defendants will Volume 67, Number 191, page 61922 on Non-Profit Agencies. Abstract: The October 12, 2002, allowing for a 60 day pay a civil penalty of $175,000 and information collection will be used by obtain a permit for the facility without comment period. the COPS Office to determine grantee’s The purpose of this notice is to allow a permit. Defendants will also progress toward grant implementation implement injunctive relief, which for an additional 30 days for public and for compliance monitoring efforts. comment until December 27, 2002. This includes having each facility inspected (5) An estimate of the total number of process is conducted in accordance with by a qualified contractor, making respondents and the amount of time 5 CFR 1320.10. necessary repairs to each facility which Written comments and/or suggestions estimated for an average respondent to the defendants continue to own and regarding the items contained in this respond: There will be an estimated 100 operate, and maintaining service notice, especially the estimated public responses from grantees. The estimated contracts on the facilities. burden and associated response time, amount of time required for the average In July 2000, Belmont Properties, Inc. should be directed to the Office of respondent to respond is 3.0 hours. (‘‘Belmont’’) purchased four of the Management and Budget, Office of (6) An estimate of the total public apartment complexes and became Information and Regulatory Affairs, burden (in hours) associated with the managing and controlling partner of Attention Department of Justice Desk collection: 325 hours. four defendant partnerships, through Officer, Washington, DC 20503. If additional information is required which defendants James R. Chaplin and Additionally, comments may be contact: Mrs. Brenda E. Dyer, Deputy Anna Chaplin owned and operated submitted to OMB via facsimile to Clearance Officer, United States these four complexes. Under a second (202)–395–7285. Department of Justice, Information consent decree, Belmont has agreed to Request written comments and Management and Security Staff, Justice implement the same injunctive relief suggestions from the public and affected Management Division, Suite 1600, measures described above for the agencies concerning the proposed Patrick Henry Building, 601 D Street facilities at the complexes it now owns. collection of information are NW., Washington, DC 20530. The Department of Justice will encouraged. Your comments should Dated: November 21, 2002. receive, for a period of thirty (30) days from the date of this publication, address one or more of the following Brenda E. Dyer, four points: comments relating to the proposed Department Deputy Clearance Officer, United consent decrees. Comments should be (1) Evaluate whether the proposed States Department of Justice. addressed to the Assistant Attorney collection of information is necessary [FR Doc. 02–30153 Filed 11–26–02; 8:45 am] for the proper performance of the General for the Environment and BILLING CODE 4410–AT–M functions of the agency, including Natural Resources Division, PO Box whether the information will have 7611, U.S. Department of Justice, practical utility; DEPARTMENT OF JUSTICE Washington, DC 20044–7611, and (2) Evaluate the accuracy of the should refer to United States v. James R. agencies estimate of the burden of the Notice of Lodging of Consent Decrees Chaplin, et al. and DOJ Reference No. proposed collection of information, Under Clean Water Act 90–5–1–06425. including the validity of the The proposed consent decrees may be methodology and assumptions used; In accordance with Departmental examined at the Office of the United (3) Enhance the quality, utility, and policy, 28 CFR 50.7, notice is hereby States Attorney, 1100 Main Street, Suite clarity of the information to be given that two proposed consent decrees 200, Wheeling, West Virginia 26003; collected; and in United States v. James R. Chaplin, et and the Region III Office of the (4) Minimize the burden of the al., C.A. No. 5:00–CV–118, were lodged Environmental Protection Agency, 1650 collection of information on those who on November 8, 2002, with the United Arch Street, Philadelphia, Pennsylvania VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70967 19103. Copies of the proposed decrees deemed necessary. This work includes, (1998)): Office of Professional may be obtained by mail from the but is not limited to, the continued Responsibility Record Index, JUSTICE/ Consent Decree Library, PO Box 7611, operation and maintenance of three OPR–001. U.S. Department of Justice, Washington, groundwater treatment facilities and OPR is adding three new routine uses DC 20044–7611 or by faxing a request to related extraction and monitoring well to this system of records. The first Tonia Fleetwood, fax number (202) 514– systems. routine use allows the disclosure of 0097, phone confirmation number (202) The Department of Justice will receive information to contractors and others 514–1547. In requesting copies of the for a period of thirty (30) days from the working on behalf of OPR when two consent decrees exclusive of date of this publication comments necessary to accomplish an OPR exhibits, please enclose a check in the relating to the Amended Consent function related to this system of amount of $18.00 (.25 cents per page Decree. Comments should be addressed records. The second routine use allows production costs), payable to the U.S. to the Assistant Attorney General, the disclosure of information to former Treasury. Environment and Natural Resources employees of the Department for the purpose of responding to official Robert D. Brook, Division, PO Box 7611, U.S. Department of Justice, Washington, DC 20044–7611, inquiries by government entities or Assistant Chief, Environmental Enforcement and should refer to United States and professional licensing authorities in Section, Environment and Natural Resources accordance with applicable Department Division. State of Arizona v. Motorola, Inc., regulations. This routine use also allows [FR Doc. 02–30155 Filed 11–26–02; 8:45 am] Siemens Corporation, Salt River Valley Water Users’ Association and disclosure to former employees where BILLING CODE 4410–15–M GlaxoSmithKline, D.J. Ref. 90–11–2– the Department requires information 413. and consultation assistance from the DEPARTMENT OF JUSTICE Commenters may request an former employee that is necessary for opportunity for a public meeting in the personnel-related or other official Notice of Lodging of Amended affected area, in accordance with section purposes. The third routine use will Consent Decree Under the 7003 (d) of RCRA, 42 U.S.C. 6973(d). allow the disclosure of information to Comprehensive Environmental The Amended Consent Decree may be members of the judicial branch of the Response, Compensation and Liability examined at the Office of the United Federal government in response to a Act States Attorney, Two Renaissance written request where disclosures are Square, 40 N. Central Avenue, Suite relevant to the authorized function of Notice is hereby given that on October 1200, Phoenix, Arizona 85004–4408, the recipient judicial office or court 31, 2002, a proposed amendment to a and at U.S. EPA Region 9, 75 Hawthorne system. consent decree entered on April 28, Street, San Francisco, California 94105. Title 5 U.S.C. 552a(e)(4)(11) provides 1992 in United States and State of A copy of the Amended Consent Decree that the public be given a 30-day period Arizona v. Motorola, Inc., Siemens may also be obtained by mail from the in which to comment on the proposed Corporation, Salt River Valley Water Consent Decree Library, PO Box 7611, new routine use disclosures. The Office Users’ Association and U.S. Department of Justice, Washington, of Management and Budget (OMB), GlaxoSmithKline, Civil Action No. CV– DC 20044–7611 or by faxing a request to which has oversight responsibilities 91–1835–PHX–WPC, was lodged with under the Privacy Act, requires a 40-day the United States District Court for the Tonia Fleetwood, fax no. (202) 514– 0097, phone confirmation number (202) period in which to conclude its review District of Arizona. of any proposal to add new routine use In this action the United States sought 514–1547. In requesting a copy, please enclose a check in the amount of $69.25 disclosures or make other major the performance of response actions and modifications. the recovery of response costs incurred (25 cents per page reproduction cost) payable to the U.S. Treasury. In You may submit any comments by and to be incurred by the United States December 27, 2002. The public, OMB with respect to releases of hazardous requesting a copy exclusive of exhibits, please enclose a check in the amount of and the Congress are invited to send substances at the Indian Bend Wash, comments to Mary Cahill, Management North, Superfund Site in Scottsdale, $23.00 (25 cents per page reproduction cost) payable to the U.S. Treasury. Analyst, Management and Planning Arizona (‘‘Site’’). The consent decree Staff, Justice Management Division, entered by the Court on April 28, 1992 Ellen M. Mahan, Department of Justice, Room 1400 required the performance of certain Assistant Chief, Environmental Enforcement National Place Building, Washington, work by the Defendants Motorola, Inc., Section, Environment and Natural Resources DC 20530. If no comments are received, Siemens Corporation, the Salt River Division. the proposal will be implemented Valley Water Users’ Association and [FR Doc. 02–30154 Filed 11–26–02; 8:45 am] without further notice in the Federal GlaxoSmithKline (collectively BILLING CODE 4410–15–M Register. ‘‘Defendants’’), with participation by the In accordance with 5 U.S.C. 552a(r), City of Scottsdale pursuant to Rule 19 the Department has provided a report to of the Federal Rules of Civil Procedure. DEPARTMENT OF JUSTICE OMB and the Congress on the proposed One provision of the April 28, 1992 new routine uses. consent decree specified that, if EPA [AAG/A Order No. 298–2002] determined that additional work was Dated: November 15, 2002. Privacy Act of 1974: System of Robert F. Diegelman, necessary to remediate contamination at Records the Site, the parties would negotiate Acting Assistant Attorney General for informally to incorporate a requirement Pursuant to the Privacy Act of 1974 (5 Administration. for the performance of that work into U.S.C. 552a), the Department of Justice, JUSTICE/OPR–001 the April 28, 1992 consent decree. The Office of Professional Responsibility Amended Consent Decree would (OPR), proposes to modify the following SYSTEM NAME: incorporate certain additional work to system of records previously published Office of Professional Responsibility be performed at the Site by the in full text in the Federal Register on Record Index. Defendants and the City that EPA has December 10, 1998 (63 FR 68299 * * * * * VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70968 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices ROUTINE USES OF RECORDS MAINTAINED IN THE Certificate of Registration, AG3101235 business. See Anne Lazar Thorn, M.D., SYSTEM, INCLUDING CATEGORIES OF USERS AND under 21 U.S.C. 824(a), and deny any 62 FR 12847 (DEA 1997); Bobby Watts, THE PURPOSES OF SUCH USES: pending applications for renewal or M.D., 53 FR 11919 (DEA 1988). * * * * * modification of that registration. As a Dr. Graves has not denied that he is * * * (10) information may be basis for revocation, the Order to Show currently not licensed to practice furnished to professional organizations Cause alleged that Dr. Graves is not medicine in Florida, the jurisdiction in or associations with which individuals currently authorized to handle which he is registered. Accordingly, he covered by this system of records may controlled substances in Florida, the is not entitled to a DEA registration. As be affiliated, such as state bar state in which he practices, and had the Administrative Law Judge stated, it disciplinary authorities, to meet their been convicted of a felony involving is well-settled that when no question of responsibilities in connection with the controlled substances. The order also fact is involved, or when the material administration and maintenance of notified Dr. Graves that should no facts are agreed upon, a plenary, standards of conduct and discipline. request for a hearing be filed within 30 adversarial administrative proceedings [Following this sentence insert the days, his hearing right would be deemed is not required. See Jesus R. Juarez, three paragraphs below.] waived. M.D., 62 FR 14945 (DEA 1997). (11) Relevant information contained By letter dated April 16, 2002, Dr. Accordingly, the Deputy in this system of records may be Graves requested an administrative Administrator of the Drug Enforcement disclosed to contractors, grantees, hearing. On May 7, 2002, DEA filed Administration, pursuant to the experts, consultants, students, and Government’s Motion for Summary authority vested in him be 21 U.S.C. 823 others performing or working on a Disposition and Request for Stay of the and 824 and 28 CFR 0.100(b) and 0.104, contract, service, grant, cooperative Filings of Prehearing Statement. The grants the agency’s Motion for Summary agreement, or other assignment for the Motion was based upon the argument Disposition and hereby orders that DEA Federal Government, when necessary to that no facts were at issue: DEA cannot Certificate of Registration AG3101235 accomplish an agency function related register or maintain the registration of a issued to James F. Graves, M.D. be, and to this system of records. practitioner who is not duly authorized hereby is, revoked. The Deputy (12) Relevant and necessary to handle controlled substances in the Administrator further orders that any information may be disclosed to former state in which he conducts business. Dr. pending applications for renewal of employees of the Department of Justice Graves did not respond to the Motion. such registration be, and they hereby for purposes of: responding to an official On July 10, 2002, Administrative Law are, denied. This order is effective inquiry by a federal, state, or local Judge Mary Ellen Bittner certified and December 27, 2002. government entity or professional transmitted the record in the matter to Dated: November 4, 2002. the Deputy Administrator along with licensing authority, in accordance with John B. Brown, III, her Opinion and Recommended applicable Department regulations; or Deputy Administrator. facilitating communications with a Decision. In her Decision, the [FR Doc. 02–30022 Filed 11–26–02; 8:45 am] former employee that may be necessary Administrative Law Judge granted for personnel-related or other official DEA’s Motion for Summary Disposition BILLING CODE 4410–09–M purposes where the Department requires and recommended that Dr. Graves’ DEA registration be revoked. information and/or consultation DEPARTMENT OF JUSTICE assistance from the former employee The Deputy Administrator has carefully reviewed the entire record in regarding a matter within that person’s Drug Enforcement Administration former area of responsibility. this matter, as defined above, and (13) Relevant information contained hereby issues this final order as K.V.M. Enterprises; Denial of in this system of records may be prescribed by 1301.46, based upon the Registration disclosed to a member of the judicial following findings and conclusions. The On February 25, 2002, the Deputy branch of Federal Government in Deputy Administrator adopts the Assistant Administrator, Office of response to a written request where Opinion and Recommended Decision of Diversion Control, Drug Enforcement disclosures are relevant to the the Administrative Law Judge, and his Administration (DEA), issued an Order authorized function of the recipient adoption is in no manner diminished by to Show Cause to K.V.M. Enterprises judicial office or court system. any recitation of facts, issues and conclusions herein, or of any failure to (KVM) of Detroit, Michigan, notifying it * * * * * mention a matter of fact or law. The of an opportunity to show cause as to [FR Doc. 02–29879 Filed 11–26–02; 8:45 am] Deputy Administrator now enters his why DEA should not deny its BILLING CODE 4410–28–P final order without a hearing pursuant application for DEA registration as a to 21 CFR 1301.43(d) and (e) and distributor of list 1 chemicals. As a basis 1301.46. for the denial, the Order to Show Cause DEPARTMENT OF JUSTICE The Deputy Administrator finds that alleged that KVM’s registration would Dr. Graves possesses DEA Certificate of not be in the public interest. The order Drug Enforcement Administration Registration AG3101235. On January 29, also notified KVM that should not a James F. Graves, M.D.; Revocation of 2002, the Florida Department of Health request for a hearing be filed within 30 Registration ordered an emergency suspension of Dr. days, its hearing right would be deemed Graves’ medical license. Loss of state waived. On April 8, 2002, the Administrator of authority to engage in the practice of The Order to Show Cause was sent by the Drug Enforcement Administration medicine is an independent ground to certified mail to KVM to the address (DEA), issued an Order to Show Cause, revoke a practioner’s registration under included on the application for Immediate Suspension of Registration, 21 U.S.C. 824(a)(3). This agency has registration. DEA received a signed to James F. Graves, M.D. (Dr. Graves) of consistently held that a person may not receipt indicating that the Order to Milton, Florida, notifying him of an maintain a DEA registration if he is Show Cause was received on KVM’s opportunity to show cause as to why without appropriate authority under the behalf on March 4, 2002. DEA has not DEA should not revoke his DEA laws of the State in which he does received a request for hearing or any VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70969 other reply from KVM or anyone certain list I chemicals such as Therefore, OMB approval has been purporting to represent it in this matter. pseudoephedrine and ephedrine are requested by November 30, 2002. If Therefore, the Deputy Administrator, often purchased in large quantities by granted, the emergency approval is only finding that (1) 30 days have passed non-traditional retail outlets such as gas valid for 180 days. ALL comments and/ since the receipt of the Order to Show station retailers who are not typically or questions pertaining to this pending Cause, and (2) no request for a hearing engaged in the sale of these products. request for emergency approval MUST having been received, concludes that These establishments in turn have sold be directed to OMB, Office of KVM is deemed to have waived its these listed chemicals to individuals Information and Regulatory Affairs, hearing right. After considering material engaged in the illicit manufacture of Attention: Karen Lee, Department of from the investigative file in this matter, methamphetamine. Justice Desk Officer, Washington, DC the Deputy Administrator now enters DEA also requested information 20503. Comments regarding the his final order without a hearing regarding proposed suppliers of list I emergency submission of this pursuant to 21 CFR 1301.43(d) and (e) chemicals to KVM. Ms. McBurrows information collection may also be and 1301.46. informed DEA that the Hammer submitted via facsimile to Ms. Lee at The Deputy Administrator finds that Corporation (Hammer) of Atlanta, 202–395–6974. on January 23, 2001, KVM submitted an Georgia is one of its potential suppliers. During the first 60 days of this same application for DEA registration as a Hammer has been the recipient of 16 period, a regular review of this distributor of the list I chemical Warning Letters from DEA between information collection is also being ephedrine (DEA chemical code number October 1997 and January 2001. These undertaken. During the regular review 8113). The application was submitted letters notified Hammer that list I period, the INS requests written by Kwana McBurrows (Ms. McBurrows), chemicals distributed by the firm have comments and suggestions from the owner of KVM. been associated with the illicit Ephedrine is a legitimately imported public and affected agencies concerning manufacture of methamphetamine. this information collection. Comments and distributed product used in the Accordingly, the Deputy production of bronchial dilators and are encouraged and will be accepted Administrator of the Drug Enforcement until January 27, 2003. During 60-day asthma relief medication. Ephedrine is Administration, pursuant to the also a precursor chemical used in the regular review, ALL comments and authority vested in him by 21 U.S.C. 823 suggestions, or questions regarding illicit manufacture of and 824 and 28 CFR 0.100(b) and 0.104, methamphetamine. DEA has developed additional information, to include hereby orders that KVM’s application obtaining a copy of the information information which demonstrates a for DEA registration be denied, on the recent increase in the use of ephedrine collection instrument with instructions, ground that registration of KVM would should be directed to Mr. Richard A. in the illicit manufacture of not be in the public interest. 21 U.S.C. methamphetamine: in 1998, DEA was Sloan, 202–514–3291, Director, 824(a)(4). This order is effective Regulations and Forms Services directly involved in the seizure of 1,626 December 27, 2002. clandestine methamphetamine Division, Immigration and laboratories. Of these laboratories, there Dated: November 4, 2002. Naturalization Service, U.S. Department were 135 instances where ephedrine John B. Brown, III, of Justice, Room 4304, 425 I Street, NW., was positively identified as a precursor Deputy Administrator. Washington, DC 20536. Written chemical for methamphetamine (8.3 [FR Doc. 02–30021 Filed 11–26–02; 8:45 am] comments and suggestions from the percent of total clandestine laboratory BILLING CODE 4410–09–M public and affected agencies concerning seizures). In 1999, DEA was directly the proposed collection of information involved in the seizure of 2,025 should address one or more of the clandestine methamphetamine DEPARTMENT OF JUSTICE following four points: laboratories. Of these laboratory (1) Evaluate whether the proposed seizures, there were 269 instances Immigration and Naturalization Service collection of information is necessary where ephedrine was positively Agency Information Collection for the proper performance of the identified as a precursor chemical for Activities: Comment Request functions of the agency, including methamphetamine (13.3 percent of total whether the information will have clandestine laboratory seizures). In ACTION: Request OMB emergency practical utility; 2000, the number of total DEA approval; application for certificate of (2) Evaluate the accuracy of the clandestine seizures dropped to 1,815, citizenship in behalf of an adopted agencies estimate of the burden of the however, those involving ephedrine child. proposed collection of information, products (249) remained consistent. including the validity of the During a March 16, 2001, pre- The Department of Justice, methodology and assumptions used; registration investigation, DEA learned Immigration and Naturalization Service (3) Enhance the quality, utility, and that KVM is a distributor of products (NS) has submitted an emergency clarity of the information to be containing Ginseng. DEA also learned information collection request (ICR) collected; and that prior to submitting an application utilizing emergency review procedures, for DEA registration, Ms. McBurrows to the Office of Management and Budget (4) Minimize the burden of the worked as a beauty consultant, and sold (OMB) for review and clearance in collection of information on those who ‘‘Mary Kay’’ health and beauty products. accordance with section are to respond, including through the DEA’s investigation further revealed 1320.13(a)(1)(ii) and (a)(2)(iii) of the use of appropriate automated, that Ms. McBurrows had no prior Paperwork Reduction Act of 1995. The electronic, mechanical, or other experience in handling list I chemicals. INS has determined that it cannot technological collection techniques or DEA’s investigation also revealed that reasonably comply with the normal other forms of information technology, KVM does not presently have any clearance procedures under this part e.g., permitting electronic submission of customers, but proposes to sell its because normal clearance procedures responses. products exclusively to gas stations. are reasonably likely to prevent or Overview of this information DEA has developed information that disrupt the collection of information. collection: VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70970 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices (1) Type of Information Collection: (1) that a significant number or TA–W–42,273; General Mills, Bakeries Extension of a currently approved proportion of the workers in the and Food Service, Hillside, MI collection. workers’ firm, or an appropriate Affirmative Determinations for Worker (2) Title of the Form/Collection: subdivision thereof, have become totally Adjustment Assistance Application for Certificate of or partially separated, Citizenship in Behalf of an Adopted (2) that sales or production, or both, The following certifications have been Child. of the firm or subdivision have issued; the date following the company (3) Agency form number, if any, and decreased absolutely, and name and location of each the applicable component of the (3) that increases of imports of articles determination references the impact Department of Justice sponsoring the like or directly competitive with articles date for all workers of such collection: Form N–643. Adjudications produced by the firm or appropriate determination. Division, Immigration and subdivision have contributed TA–W–42,070; Athens Products, Athens, Naturalization Service. importantly to the separations, or threat TN: August 9, 2001. (4) Affected public who will be asked thereof, and to the absolute decline in TA–W–42,248; Kasper Machine Co., or required to respond, as well as a brief sales or production. Inc., Madison Heights, MI: September abstract: Primary: Individuals or 18, 2001. households. This information collection Negative Determinations for Worker Adjustment Assistance TA–W–42,302; Trends Clothing Corp., a/ allows United States citizen parents to k/a/ Trends International, Miami, FL: apply for a certificate of citizenship on In each of the following cases the October 9, 2001. behalf of their adopted alien children. investigation revealed that criterion (3) TA–W–42,305; Unison Industries, a (5) An estimate of the total number of has not been met. A survey of customers Subsidiary of G.E. Fort Worth, TX: respondents and the amount of time indicated that increased imports did not October 8, 2001 estimated for an average respondent to contribute importantly to worker TA–W–42,329; International Hosiery respond: 11,159 responses at 1 hour per separations at the firm. Network, LLC, Hickory, NC: October response. TA–W–41,420; Cawood Manufacturing 21, 2001. (6) An estimate of the total public Co., Inc. TA–W–50,020; DMI–Arkansas, Inc., d/b/ burden (in hours) associated with the TA–W–42,165; Wirtz Manufacturing Co., a/ Arkansas General Industries, Bald collection: 11,159 annual burden hours. Port Huron, MI Knob, AR: November 5, 2001. If additional information is required TA–W–41,495; Arkwright, Inc., OCE TA–W–42,280; Covington Industries, contact: Mr. Robert B. Briggs, Clearance USA Holding Co., Fiskville, RI Inc., High Point, NC: October 9, 2001. Officer, United States Department of TA–W–41,655; BTA–Perfex, Butler, WI TA–W–42,061; Metropolitan Steel Justice, Information Management and TA–W–41,982; Kato Engineering, Inc., Industries, Inc., d/b/a Steelco, Sinking Security Staff, Justice Management North Mankato, MN Springs, PA: August 20, 2001. Division, 601 D Street, NW., Patrick TA–W–42,013; Baker Enterprises, Inc., TA–W–50,024; Hudson Respiratory Henry Building, Suite 1600, Alpena, MI Care, Inc., Argyle, NY: November 4, Washington, DC 20530. TA–W–42,102; Northern Engraving 2001. Dated: November 21, 2002 Corp., Lansing Div., Lansing, IA TA–W–42,257; Arnold Engineering Co., TA–W–42,189; Baker Electrical Richard A. Sloan, Marengo, IL: October 1, 2001. Products, Memphis, MI TA–W–42,240; RBX Industries, Inc., Department Clearance Officer, United States TA–W–42,205; Sutherland Sheet Metal Department of Justice, Immigration and Colt, AR: October 1, 2001. and Welding Co., Woonsocket, RI Naturalization Service. TA–W–42,168; Gulfstream Aerospace [FR Doc. 02–30020 Filed 11–26–02; 8:45 am] In the following cases, the Technologies, Bethany, OK: BILLING CODE 4410–10–M investigation revealed that the criteria September 6, 2001. for eligibility have not been met for the TA–W–42,153; Wells Lamont Corp., reasons specified. Packing and Sewing Department, Increased imports did not contribute DEPARTMENT OF LABOR Waynesboro, MS: September 4, 2001. importantly to worker separations at the TA–W–42,150 &A; Wyman-Gordon Employment and Training firm. Forgings, a Div. of Precision Castparts Administration TA–W–42,292; MacNeill Worldwide, a Corp., North Graft, MA, Worcester, Subsidiary of MacNeill Engineering MA: September 4, 2001. Notice of Determinations Regarding Co., Laconia, NH TA–W–42,139; Fabry Industries, Green Eligibility; To Apply for Worker The workers’ firm does not produce Bay, WI: August 27, 2001. Adjustment Assistance and NAFTA an article as required for certification TA–W–42,045; Regal Manufacturing, Transitional Adjustment Assistance under Section 222 of the Trade Act of Inc., New York, NY: August 21, 2001. In accordance with Section 223 of the 1974. TA–W–42,022; Molded Container Corp., Trade Act of 1974, as amended, the TA–W–42,238; Eichleay Engineers and Portland, OR: August 8, 2001. Department of Labor herein presents Constructors, Inc., Pittsburgh, PA TA–W–41,144; Dawson Furniture Co., summaries of determinations regarding TA–W–42,175; Hilti, Inc., New Castle, Webb City, MO: February 20, 2001. eligibility to apply for trade adjustment PA TA–W–40,505; Tee Tease, LLC., assistance for workers (TA–W) issued TA–W–42,183; IKA Logistics, Inc., Commerce, CA: October 31, 2000. during the period of November, 2002. Packaging Div., a Subsidiary of TA–W–42,744; Angelica Image Apparel, In order for an affirmative Inabata America Corp., El Paso, TX St. Louis, MO: June 12, 2001. determination to be made and a The investigation revealed that TA–W–41,623; Decrane Aircraft Seating certification of eligibility to apply for criteria (1) has not been met. A Co., Inc., E.R.D.A. Medical Div., worker adjustment assistance to be Significant number or proportion of the Marinette, WI: May 24, 2001. issued, each of the group eligibility workers did not become totally or Also, pursuant to Title V of the North requirements of Section 222 of the Act partially separated from employment as American Free Trade Agreement must be met. required for certification. Implementation Act (P.L. 103–182) VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70971 concerning transitional adjustment NAFTA–TAA–06471; Wisconsin Pattern NAFTA–TAA–07205; Permit #59859P, assistance hereinafter called (NAFTA– Co., Racine, WI Dillingham, AK TAA) and in accordance with Section NAFTA–TAA–07607; RBX Industries, The investigation revealed that 250(a), Subchapter D, Chapter 2, Title II, Inc., Colt, AR criteria (2) has not been met. Sales or of the Trade Act as amended, the The investigation revealed that the production, or both, did not decline Department of Labor presents criteria for eligibility have not been met during the relevant period as required summaries of determinations regarding for the reasons specified. for certification. eligibility to apply for NAFTA–TAA The investigation revealed that NAFTA–TAA–07394; Permit #65838L, issued during the months of November, workers of the subject firm did not Naknek, AK 2002. produce an article within the meaning NAFTA–TAA–07393; Permit #57957Q, In order for an affirmative of Section 250(a) of the Trade Act, as Naknek, AK determination to be made and a amended. NAFTA–TAA–07064; State of Alaska certification of eligibility to apply for NAFTA–TAA–07581; IKA Logistics, Inc., Commercial Fisheries Entry NAFTA–TAA the following group Packaging Div., A Subsidiary of Commission Permit #57453B, Togiak, eligibility requirements of Section 250 Inabata America Corp., El Paso, TX AK of the Trade Act must be met: NAFTA–TAA–06378; Willamette NAFTA–TAA–06995; State of Alaska (1) that a significant number or Industries, a Weyerhaueser Co., Commercial Fisheries Entry proportion of the workers in the Albany BMG Div., Albany, OR Commission, Permit #61962L, South workers‘ firm, or an appropriate The investigation revealed that Naknek, AK subdivision thereof, (including workers criteria (1) has not been met. A NAFTA–TAA–06735; State of Alaska in any agricultural firm or appropriate significant number or proportion of the Commercial Fisheries Entry subdivision thereof) have become totally workers in such workers’ firm or an Commission Permit #55224K, Egegik, or partially separated from employment appropriate subdivision (including AK and either— NAFTA–TAA–06619; State of Alaska (2) that sales or production, or both, workers in any agricultural firm or Commercial Fisheries Entry of such firm or subdivision have appropriate subdivision thereof) did not Commission Permit #59338H, decreased absolutely, become totally or partially separated (3) that imports from Mexico or from employment as required for Dillingham, AK Canada of articles like or directly certification. NAFTA–TAA–06578; State of Alaska competitive with articles produced by NAFTA–TAA–07526; State of Alaska Commercial Fisheries Entry such firm or subdivision have increased, Commercial Fisheries Entry Commission Permit #64128B, and that the increased imports Commission Permit #65826E, Togiak, Dillingham, AK contributed importantly to such AK Affirmative Determinations NAFTA– workers’ separations or threat of NAFTA–TAA–07315; State of Alaska TAA separation and to the decline in sales or Commercial Fisheries Entry NAFTA–TAA–05848; Tee Tease, LLC, production of such firm or subdivision; Commission Permit #64750K, Commerce, CA: October 31, 2000. or Manokotak, AK NAFTA–TAA–06517; Metropolitan Steel (4) that there has been a shift in NAFTA–TAA–07102; State of Alaska Industries, Inc., d/b/a Steelco, Sinking production by such workers’ firm or Commercial Fisheries Entry Springs, PA: August 22, 2001. subdivision to Mexico or Canada of Commission Permit #64914G, NAFTA–TAA–06600; State of Alaska articles like or directly competitive with Dillingham, AK Commercial Fisheries Entry articles which are produced by the firm NAFTA–TAA–07059; State of Alaska Commission Permit #58874X, or subdivision. Commercial Fisheries Entry Commission Permit #60161A, Togiak, Dillingham, AK: September 5, 2001. Negative Determinations NAFTA–TAA AK NAFTA–TAA–06923; Permit #64808Q, In each of the following cases the NAFTA–TAA–07046; State of Alaska New Stuyahok, AK: September 5, investigation revealed that criteria (3) Commercial Fisheries Entry 2001. and (4) were not met. Imports from Commission Permit #57876J, Togiak, NAFTA–TAA–07291; State of Alaska Canada or Mexico did not contribute AK Commercial Fisheries Entry Permit importantly to workers’ separations. NAFTA–TAA–07041; State of Alaska #606910, Manokotak, AK: There was no shift in production from Commercial Fisheries Entry NAFTA–TAA–07301; State of Alaska the subject firm to Canada or Mexico Commission Permit #58078X, Commercial Fisheries Entry during the relevant period. Anchorage, AK Commission Permit #65405G, NAFTA–TAA–05901; Dawson Furniture NAFTA–TAA–07042; Permit #61508S, Manokotak, AK: September 5, 2001. Co., Webb City, MO Anchorage, AK NAFTA–TAA–07511; State of Alaska NAFTA–TAA–06220; BTA–Perfex, Div. NAFTA–TAA–06937; State of Alaska Commercial Fisheries Entry of Thermal Engineering International, Commercial Fisheries Entry Commission Permit #64734J, Togiak, Butler, WI Commission Permit #56498G, New AK: September 5, 2001. NAFTA–TAA–06342; Louisiana-Pacific Stuyahok, AK NAFTA–TAA–07611; Unison Industries, Corp., Plywood Div., Bon Wier, TX NAFTA–TAA–06875; State of Alaska A Subsidiary of G.E., Fort Worth, TX: NAFTA–TAA–06463; Baker Enterprises, Commercial Fisheries Entry October 10, 2001. Inc., Alpena, MI Commission Permit #57767U, NAFTA–TAA–07612; SMTC NAFTA–TAA–06510; Northern Naknek, AK Manufacturing Corp., Austin, TX: Engraving Corp., Lansing Div., NAFTA–TAA–06803; State of Alaska August 16, 2001. Lansing, IA Commercial Fisheries Entry NAFTA–TAA–06228; Decrane Aircraft NAFTA–TAA–07565; Baker Electrical Commission Permit #64822I, Seating Co., Inc., E.R.D.A. Medical Products, Inc., Memphis, MI Koliganek, AK Div., Marinette, WI: May 28, 2001. NAFTA–TAA–07644; Fedder’s NAFTA–TAA–07546; Permit #60018B, NAFTA–TAA–07286; State of Alaska Appliances, Effingham, IL Ugashik, AK Commercial Fisheries Entry VerDate 0ct<31>2002 17:57 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70972 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Commission Permit #65874I, of the Group Eligibility Requirements of Signed at Washington, DC this 5th day of Monokotak, AK: September 5, 2001. Section 222 of the Trade Act of 1974, as November 2002. NAFTA–TAA–06298; Angelica Image amended, was not met. Increased Edward A. Tomchick, Apparel, St. Louis, MO: June 21, 2001. imports did not contribute importantly Director, Division of Trade Adjustment NAFTA–TAA–06771; State of Alaska to worker separations at the subject Assistance. Commercial Fisheries Entry firm. [FR Doc. 02–30063 Filed 11–26–02; 8:45 am] Commission Permit #68181M, The Department’s initial denial of the BILLING CODE 4510–30–P Iliamna, AK: September 5, 2001. NAFTA-Transitional Adjustment NAFTA–TAA–06808; State of Alaska Assistance (NAFTA) petition for Commercial Fisheries Entry employees of Goodyear Dunlop, N.A. DEPARTMENT OF LABOR Commission Permit #56834J, LTD, Huntsville, Alabama (NAFTA– Koliganek, AK: September 5, 2001. 05749) was issued on May 3, 2002 and Employment and Training NAFTA–TAA–06826; State of Alaska published in the Federal Register on Administration Commercial Fisheries Entry May 17, 2002 (67 FR 35142). The denial [TA–W–42,269] Commission Permit #60843A, was based on the fact that criteria (3) Levelock, AK: September 5, 2001. and (4) of the Group Eligibility Acterna Corporation Indianapolis, NAFTA–TAA–07079; State of Alaska Requirements of Section 250 of the Indiana; Notice of Termination of Commercial Fisheries Entry Trade Act of 1974 were not met. Imports Investigation Commission Permit #67875V, Twin from Canada or Mexico did not Hills, AK: September 5, 2001. contribute importantly to worker Pursuant to section 221 of the Trade NAFTA–TAA–07280; Permit #64911E, separations nor was there a shift in Act of 1974, an investigation was Manokotak, AK: September 3, 2001. production from the subject firm to initiated on October 21, 2002 in NAFTA–TAA–07568; Molded Container Canada or Mexico during the relevant response to petition filed by the Corp., Portland, OR: August 8, 2001. period. company on behalf of workers at I hereby certify that the On remand, the Department requested Acterna Corporation, Indianapolis, aforementioned determinations were additional information from the Indiana. issued during the months of November, company. Based on the data supplied by The petitioner has requested that the 2002. Copies of these determinations are the company the Department made a petition be withdrawn. Consequently, available for inspection in Room C– decision to survey the major declining further investigation in this case would 5311, U.S. Department of Labor, 200 customers of the subject firm regarding serve no purpose, and the investigation Constitution Avenue, NW., Washington, their purchases of passenger and light has been terminated. DC 20210 during normal business hours truck radial tires during 1999, 2000 and Signed in Washington, DC, this 15th day of or will be mailed to persons who write 2001. The survey revealed that a major November, 2002. to the above address. declining customer increased their Linda G. Poole, imports (primarily from Mexico and/or Certifying Officer, Division of Trade Edward A. Tomchick, Canada) of passenger and light truck Adjustment Assistance. Director, Division of Trade Adjustment radial tires, while decreasing their [FR Doc. 02–30072 Filed 11–26–02; 8:45 am] Assistance. purchases of passenger and light truck BILLING CODE 4510–30–P [FR Doc. 02–30068 Filed 11–26–02; 8:45 am] radial tires from the subject firm during BILLING CODE 4510–30–P the relevant period Conclusion DEPARTMENT OF LABOR DEPARTMENT OF LABOR After careful review of the additional Employment and Training facts obtained on remand, I conclude Administration Employment and Training that there were increased imports Administration (primarily from Canada or Mexico) of [TA–W–42,160] [TA–W–40, 687 & NAFTA–05749] articles like or directly competitive with Altadis U.S.A. Inc. McAdoo, PA; Notice those produced by the subject firm that of Termination of Investigation Goodyear Dunlop Tires, N.A. Ltd, contributed importantly to the worker Huntsville, AL; Notice of Revised separations and sales or production Pursuant to section 221 of the Trade Determination on Remand declines at the subject facility. In Act of 1974, an investigation was accordance with the provisions of the initiated on September 23, 2002, in The United States Court of Trade Act, I make the following response to a worker petition which was International Trade (USCIT) granted the certification: filed by the Teamsters Local Union No. Secretary of Labor’s motion for 401 on behalf of workers at Altadis voluntary remand for further All workers of Goodyear Dunlop, N.A. U.S.A., Inc., McAdoo, Pennsylvania. investigation of the negative LTD, Huntsville, Alabama (TA–W–40, 687) who became totally or partially separated The petitioner has requested that the determinations in United Steel Workers from employment on or after November 28, petition be withdrawn. Consequently, of America, Local 915L, District 9, AFL– 2000, through two years from the issuance of further investigation in this case would CIO v. Elaine L. Chao, U.S. Secretary of this revised determination, are eligible to serve no purpose, and the investigation Labor (Court No. 02–00457). apply for adjustment assistance under has been terminated. The Department’s initial denial of the Section 223 of the Trade Act of 1974; and Trade Adjustment Assistance (TAA) All workers of Goodyear Dunlop, N.A. Signed in Washington, DC, this 15th day of petition for employees of Goodyear LTD, Huntsville, Alabama (NAFTA–05749) November, 2002. Dunlop, N.A. LTD, Huntsville (TA–W– who became totally or partially separated Richard Church, from employment on or after December 11, Certifying Officer, Division of Trade 40, 687), was issued on May 3, 2002 and 2000, through two years from the issuance of Adjustment Assistance. published in the Federal Register on this revised determination, are eligible to May 17, 2002 (67 FR 35140). The denial apply for NAFTA–TAA under Section 250 of [FR Doc. 02–30069 Filed 11–26–02; 8:45 am] was based on the fact that criterion (3) the Trade Act of 1974. BILLING CODE 4510–30–P VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70973 DEPARTMENT OF LABOR DEPARTMENT OF LABOR DEPARTMENT OF LABOR Employment and Training Employment and Training Employment and Training Administration Administration Administration [TA–W–42,338] Investigations Regarding Certifications [TA–W–42,253] Kane Handle Company, a Division of of Eligibility To Apply for Worker Fleming Lumber Company, Inc., Ames True Temper, Kane, PA; Notice Adjustment Assistance Milligan, FL; Notice of Termination of of Termination of Investigation Investigation Petitions have been filed with the Pursuant to Section 221 of the Trade Secretary of Labor under Section 221(a) Act of 1974, an investigation was Pursuant to section 221 of the Trade of the Trade Act of 1974 (‘‘the Act’’) and initiated on November 1, 2002 in are identified in the Appendix to this Act of 1974, an investigation was response to a petition filed by the initiated on October 21, 2002, in notice. Upon receipt of these petitions, United Steelworkers of America on the Director of the Division of Trade response to a worker petition filed on behalf of workers at Kane Handle Adjustment Assistance, Employment the same date by a company official on Company, a Division of Ames True and Training Administration, has behalf of workers at Fleming Lumber Temper, Kane, Pennsylvania. Company, Inc., Milligan, FL. A negative determination applicable instituted investigations pursuant to section 221(a) of the Act. The petitioner has requested that the to the petitioning group of workers was petition be withdrawn. Consequently, issued on October 8, 2002 (TA–W– The purpose of each of the further investigation in this case would 42,093). No new information is evident investigations is to determine whether serve no purpose, and the investigation which would result in a reversal of the the workers are eligible to apply for has been terminated. Department’s previous determination. adjustment assistance under Title II, Consequently, further investigation in Chapter 2, of the Act. The investigations Signed in Washington, DC, this 14th day of this case would serve no purpose, and will further relate, as appropriate, to the November 2002 the investigation has been terminated. determination of the date on which total Richard Church, Signed in Washington, DC this 19th day of or partial separations began or Certifying Officer, Division of Trade November, 2002. threatened to begin and the subdivision Adjustment Assistance. Linda G. Poole, of the firm involved. [FR Doc. 02–30070 Filed 11–26–02; 8:45 am] Certifying Officer, Division of Trade The petitioners or any other persons Adjustment Assistance. BILLING CODE 4510–30–P showing a substantial interest in the [FR Doc. 02–30065 Filed 11–26–02; 8:45 am] subject matter of the investigations may BILLING CODE 4510–30–P DEPARTMENT OF LABOR request a public hearing, provided such request is filed in writing with the Employment and Training DEPARTMENT OF LABOR Director, Division of Trade Adjustment Administration Assistance, at the address shown below, Employment and Training not later than December 9, 2002. Administration [TA–W–42,356] Interested persons are invited to [TA–W–42,279] submit written comments regarding the Hynix Semiconductor America, Inc., subject matter of the investigations to San Jose, CA; Notice of Termination of LaGrange Foundry, LaGrange, MO; the Director, Division of Trade Investigation Notice of Termination of Investigation Adjustment Assistance, at the address Pursuant to Section 221 of the Trade shown below, not later than December Pursuant to section 221 of the Trade Act of 1974, an investigation was 9, 2002. Act of 1974, an investigation was initiated on October 28, 2002, in The petitions filed in this case are initiated on November 1, 2002 in response to a petition filed on behalf of available for inspection at the Office of response to petition filed by the workers at LaGrange Foundry, the Director, Division of Trade company on behalf of workers at Hynix LaGrange, Missouri. Adjustment Assistance, Employment Semiconductor America, Inc., San Jose, The investigation revealed that there and Training Administration, U.S. California. is an existing petition (TA–42,245) for Department of Labor, Room C–5311, 200 The petition regarding the the subject firm workers which was Constitution Avenue, NW., Washington, instituted on October 15, 2002. investigation has been deemed invalid. DC 20210. Consequently, the investigation has Consequently, further investigation in this case would serve no purpose, and Signed at Washington, DC this 21st day of been terminated. the investigation has been terminated. October, 2002. Signed in Washington, DC, this 15th day of Signed in Washington, DC this 7th day of Edward A. Tomchick, November, 2002. November 2002. Director, Division of Trade Adjustment Linda G. Poole, Elliott S. Kushner, Assistance. Certifying Officer, Division of Trade Certifying Officer, Division of Trade Adjustment Assistance. Adjustment Assistance. [FR Doc. 02–30074 Filed 11–26–02; 8:45 am] [FR Doc. 02–30064 Filed 11–26–02; 8:45 am] BILLING CODE 4510–30–P BILLING CODE 4510–30–P VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70974 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices APPENDIX [Petitions Instituted on 10/21/2002] Subject firm Date of TA–W (petitioners) Location petition Product(s) 42,252 ...... Leslie Fay Marketing, Inc (UNITE) ...... New York, NY ...... 10/11/2002 dresses. 42,253 ...... Fleming Lumber Co., Inc. (Comp) ...... Milligan, FL ...... 10/09/2002 kiln dried lumber. 42,254 ...... American Fibers and Yarns (Wkrs) ...... Rocky Mount, NC ...... 09/30/2002 yarn, upholstery material, rayon. 42,255 ...... Waltec Forgings, Inc. (Comp) ...... Port Huron, MI ...... 09/30/2002 non-ferrous forgings, valve. 42,256 ...... Jackson Sewing Center (Wkrs) ...... Madisonville, TN ...... 10/02/2002 sewed upholstery fabric. 42,257 ...... Arnold Engineering Co. (IAM) ...... Marengo, IL ...... 10/01/2002 torroidal cores. 42,258 ...... Joan Fabrics Corporation (Wkrs) ...... Hickory, NC ...... 09/18/2002 textiles for furniture manufacturers. 42,259 ...... Colabria Fashions, Inc. (UNITE) ...... New Rochelle, NY ...... 10/11/2002 ladies’ apparel. 42,260 ...... Miss Dorby (UNITE) ...... New York, NY ...... 10/09/2002 women’s dresses. 42,261 ...... Eybl Cartex, Inc. (Comp) ...... Fountain Inn, SC ...... 10/02/2002 knitted velour fabric. 42,262 ...... Pollak (Comp) ...... Boston, MA ...... 10/02/2002 door lock actuators. 42,263 ...... Arkansas Metal Castings (Comp) ...... Ft. Smith, AR ...... 10/04/2002 grey and ductile iron castings. 42,264 ...... ASCG Inspection, Inc. (Comp) ...... Anchorage, AK ...... 10/02/2002 testing inspection services. 42,265 ...... Streamline Fashions (Comp) ...... Philipsburg, PA ...... 10/02/2002 men’s suit jackets. 42,266 ...... Presto Manufacturing Co. (IBEW) ...... Jackson, MS ...... 10/03/2002 non-commercial small kitchen appliances. 42,267 ...... Simula Automotive Safety (Comp) ...... Tempe, AZ ...... 09/20/2002 side impact head airbag. 42,268 ...... Frazer and Jones Co. (LWAIUE) ...... Syracuse, NY ...... 10/02/2002 mine anchors, contract castings. 42,269 ...... Acterna (Comp) ...... Indianapolis, IN ...... 10/04/2002 test equipment for telecommunications. 42,270 ...... Dixon Ticonderoga Co. (Comp) ...... Sandusky, OH ...... 10/07/2002 crayons. 42,271 ...... Uniek Inc. (Comp) ...... Greenwood, MS ...... 09/30/2002 wooden picture frames. 42,272 ...... Mountain Fir Chip Co (Comp) ...... The Dalles, OR ...... 10/01/2002 wood chips. 42,273 ...... General Mills Bakeries (Comp) ...... Hillsdale, MI ...... 09/30/2002 prepared bakery mixes. 42,274 ...... Angelica Image Apparel (Wrks) ...... Alamo, TN ...... 10/04/2002 garment distribution. 42,275 ...... ESAB Group (The) (Wkrs) ...... Niagara Falls, NY ...... 10/02/2002 bonded and flux for welding products. 42,276 ...... Koei America, Inc (Wkrs) ...... Hillsboro, OR ...... 10/02/2002 electronic components for semiconductors. [FR Doc. 02–30058 Filed 11–26–02; 8:45 am] instituted investigations pursuant to Interested persons are invited to BILLING CODE 4510–30–M section 221(a) of the Act. submit written comments regarding the The purpose of each of the subject matter of the investigations to investigations is to determine whether the Director, Division of Trade DEPARTMENT OF LABOR the workers are eligible to apply for Adjustment Assistance, at the address adjustment assistance under title II, shown below, not later than December Employment and Training chapter 2, of the Act. The investigations 9, 2002. Administration will further relate, as appropriate, to the The petitioners filed in this case are available for inspection at the Office of Investigations Regarding Certifications determination of the date on which total the Director, Division of Trade of Eligibility to Apply for Worker or partial separations began or Adjustment Assistance, Employment Adjustment Assistance threatened to begin and the subdivision of the firm involved. and Training Administration, U.S. Petitions have been filed with the The petitioners or any other persons Department of Labor, Room C–5311, 200 Secretary of Labor under section 221(a) showing a substantial interest in the Constitution Avenue, NW., Washington, of the Trade Act of 1974 (‘‘the Act’’) and subject matter of the investigations may DC 20210. are identified in the Appendix to this request a public hearing, provided such Signed in Washington, DC this 1st day of notice. Upon receipt of these petitions, request is filed in writing with the November, 2002. the Director of the Division of Trade Director, Division of Trade Adjustment Edward A. Tomchick, Adjustment Assistance, Employment Assistance, at the address show below, Director, Division of Trade Adjustment and Training Administration, has not later than December 9, 2002. Assistance. APPENDIX [Petitions Instituted on 11/01/2002] Subject firm Date of TA–W (petitioners) Location petition Products(s) 42,314 ...... NCS Pearson (Comp) ...... Mesa, AZ ...... 10/21/2002 software development. 42,315 ...... Alcatel USA, Inc. (Wkrs) ...... Plano, TX ...... 10/18/2002 wireless telephone switches. 42,316 ...... Augusta Mills (Comp) ...... Elkton, VA ...... 10/15/2002 bed sheets and pillow cases. 42,317 ...... Boise Cascade (PACE) ...... Jackson, AL ...... 10/15/2002 pine lumber. 42,318 ...... Eagle Clothing Co. (Wkrs) ...... Los Angeles, CA ...... 10/15/2002 clothing. 42,319 ...... Spicer Driveshaft Manufacturing, Inc. Atkins, VA ...... 10/17/2002 automotive drivetrain components. (Wkrs). 42,320 ...... Apache Corporation (Wkrs) ...... Houston, TX ...... 10/14/2002 oil and gas. 42,321 ...... Boxboard Packaging Co. (Wkrs) ...... Norwalk, OH ...... 09/30/2002 printed folding cartons. 42,322 ...... Kelly Services, Inc (Wkrs) ...... San Diego, CA ...... 10/17/2002 stuffing services.. 42,323 ...... Armstone Div., PermaGrain Products Newtown Square, PA .. 10/15/2002 artificial marble (tile). (Comp). VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70975 APPENDIX—Continued [Petitions Instituted on 11/01/2002] Subject firm Date of TA–W (petitioners) Location petition Products(s) 42,324 ...... United Plastics Group (Comp) ...... Bensenville, IL ...... 10/16/2002 plastic molded parts. 42,325 ...... U.S. Repeating Arms Co. (IAM) ...... New Haven, CT ...... 10/17/2002 rifles and shotguns. 42,326 ...... Micro C Technologies, Inc (Comp) ...... Grand Rapids, MI ...... 10/22/2002 semiconductor capitol equipment. 42,327 ...... Aspen International (Wkrs) ...... Salem, OR ...... 10/15/2002 cable TV maps. 42,328 ...... Stratex Networks, Inc. (Comp) ...... San Jose, CA ...... 10/09/2002 telecommunications equipment. 42,329 ...... International Hosiery Network, LLC (Wkrs) Hickory, NC ...... 10/21/2002 cotton socks—men and women. 42,330 ...... Alcoa Inc. (UAW) ...... Cleveland, OH ...... 11/01/2002 aluminum wheels. 42,331 ...... PHB Die Casting (USWA) ...... Fairview, PA ...... 10/15/2002 die casting parts. 42,332 ...... Parker Hannifin Corp. (Wkrs) ...... Andover, OH ...... 10/22/2002 gas turbine engine fuel nozzles. 42,333 ...... Dunbrooke Sportswear (Wkrs) ...... El Dorado Spgs, MO ... 10/21/2002 jackets. 42,334 ...... Pine State Knitwear Co. (Wkrs) ...... Mount Airy, NC ...... 10/21/2002 yarn. 42,335 ...... Trans World Connections, Ltd (Comp) ...... Lynchburg, VA ...... 10/21/2002 cable harnesses. 42,336 ...... Power-One (Wkrs) ...... Andover, MA ...... 10/15/2002 DE power converters. 42,337 ...... Corning Cable Systems (Wkrs) ...... Hickory, NC ...... 10/21/2002 connectorized cables. 42,338 ...... Kane Handle Co. (USWA) ...... Kane, PA ...... 10/14/2002 wood handles for garden tools. 42,339 ...... Doyle Shirt Manufacturing (Wkrs) ...... Doyle, TN ...... 10/24/2002 career uniforms. 42,340 ...... Titan Wheel Corp. of Va (Comp) ...... Saltville, VA ...... 10/25/2002 wheel and tire assemblies, mining wheels. 42,341 ...... Pomona Paper Company (AWPPW) ...... Pomona, CA ...... 10/24/2002 linerboard. 42,342 ...... Auburn Hosiery Mills, Inc. (Comp) ...... Auburn, KY ...... 10/17/2002 athletic socks. 42,343 ...... Frolic Footwear (Wkrs) ...... Monette, AR ...... 10/23/2002 shoes. 42,344 ...... Hitachi High Technologies America, Inc. San Jose, CA ...... 09/27/2002 uv spectrophotometers, blood analyzers. (Comp). 42,345 ...... General Electric Industrial Systems (Comp) Plainville, CT ...... 10/07/2002 fabrication load centers and switches. 42,346 ...... Haemer-Wright Tool and Die, Inc. (Wkrs) ... Saegertown, PA ...... 07/22/2002 dies and molds. 42,347 ...... Shur-Line (Comp) ...... Johnson City, TN ...... 10/08/2002 paint brushes. 42,348 ...... Lexington Home Brands (Comp) ...... Mocksville, NC ...... 10/30/2002 furniture. 42,349 ...... Peak Storage Solutions (Wkrs) ...... Louisville, CO ...... 10/23/2002 data storage. 42,350 ...... Partex Apparel Mfg., Inc (Comp) ...... Medley, FL ...... 10/24/2002 private label, sports apparel. 42,351 ...... Johnstown Corporation (USWA) ...... Johnstown, PA ...... 10/31/2002 steel castings. 42,352 ...... Pacific Electricord (Wkrs) ...... Gardana, CA ...... 10/10/2002 cord sets, extension cords. 42,353 ...... Cerf Brothers Bag Company (Wkrs) ...... New London, MO ...... 10/29/2002 nylon duffle bags, canvas duffle bags. 42,354 ...... Kalmar Industries Corp. (Wkrs) ...... White Oak, TX ...... 10/25/2002 terminal tractors. 42,355 ...... Ferro Corporation (GMPPAW) ...... East Liverpool, OH ...... 10/23/2002 ceramic grinding media. . 42,356 ...... Hynix Semiconductor America, Inc. (Comp) San Jose, Ca ...... 10/08/2002 flash memory products. 42,357 ...... ConsolEnergy (Wkrs) ...... Sesser, IL ...... 10/28/2002 coal. 42,358 ...... Pratt and Whitney (Comp) ...... Claremore, Ok ...... 10/30/2001 jet engine, components. 42,359 ...... Allegheny Ludlum Washington Plate Washington, PA ...... 11/01/2002 steel plate, products. (USWA). [FR Doc. 02–30062 Filed 11–26–02; 8:45 am] instituted investigations pursuant to Interested persons are invited to BILLING CODE 4510–30–M section 221(a) of the Act. submit written comments regarding the The purpose of each of the subject matter of the investigations to investigations is to determine whether the Director, Division of Trade DEPARTMENT OF LABOR the workers are eligible to apply for Adjustment Assistance, at the address adjustment assistance under title II, shown below, not later than December Employment and Training chapter 2, of the Act. The investigations 9, 2002. Administration will further relate, as appropriate, to the The petitions filed in this case are Investigations Regarding Certifications determination of the date on which total available for inspection at the Office of of Eligibility To Apply for Worker or partial separations began or the Director, Division of Trade Adjustment Assistance threatened to begin and the subdivision Adjustment Assistance, Employment of the firm involved. and Training Administration U.S. Petitions have been filed with the The petitioners or any other persons Department of Labor, Room C–5311, 200 Secretary of Labor under section 221(a) showing a substantial interest in the Constitution Avenue, NW., Washington, of the Trade Act of 1974 (‘‘the Act’’) and subject matter of the investigations may DC 20210. are identified in the Appendix to this request a public hearing, provided such Signed in Washington, DC this 15th day of notice. Upon receipt of these petitions, request is filed in writing with the October, 2002. the Director of the Division of Trade Director, Division of Trade Adjustment Edward A. Tomchick, Adjustment Assistance, Employment Assistance, at the address shown below, Director, Division of Trade Adjustment and Training Administration, has not later than December 9, 2002. Assistance. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70976 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices APPENDIX—PETITIONS INSTITUTED ON OCTOBER 15, 2002 Subject firm Date of TA–W (petitioners) Location petition Product(s) 42,228 Pent Products, Inc. (Comp) ...... Ashley, AL ...... 09/23/2002 Electrical harnesses. 42,229 Dana Corp. (UAW) ...... Syracuse, IN ...... 09/25/2002 Machining of cases and carriers. 42,230 Flowserve US, Inc. (Wkrs) ...... Williamsport, PA ...... 09/27/2002 Nuclear valves. 42,231 Doe Run Resources Corp. (Comp) ...... Viburnum, MO ...... 09/25/2002 Zinc and lead concentrates. 42,232 Nilfisk—Advance, Inc. (Wkrs) ...... Plymouth, MN ...... 09/26/2002 Parts for vacuums, industrial sweepers. 42,233 M J Soffe (Wkrs) ...... Wallace, NC ...... 08/21/2002 Military T-shirts. 42,234 Joy Mining Machinery (Wkrs) ...... Mt. Vernon, IL ...... 09/23/2002 Frame gathering heads and traction. 42,235 Cattiva, Inc. (Comp) ...... New York, NY ...... 10/02/2002 Women’s dresses. 42,236 Consolidated Freightways (Wkrs) ...... York, PA ...... 09/26/2002 Trucking services. 42,237 Penn American Coal Co. (Wkrs) ...... Black Lick, PA ...... 09/24/2002 Coal. 42,238 Eichleay Engineers (Comp) ...... Pittsburgh, PA ...... 09/30/2002 Construction and engineering service. 42,239 Aerovox, Inc. (Comp) ...... Huntsville, AL ...... 09/26/2002 Aluminum foil. 42,240 RBX Industries, Inc. (Comp) ...... Colt, AR ...... 10/01/2002 Cell foam rubber insulation. 42,241 Siemens Medical Solutions (Comp) ...... Issaquah, WA ...... 09/16//2002 Arrays and transducers. 42,242 Super Shrimp, Inc. (Wkrs) ...... Yuma, AZ ...... 09/19/2002 Pack and distribute shrimp. 42,243 Consolidated Freight Ways (Wkrs) ...... El Paso, TX ...... 09/23/2002 Transporting of products. 42,244 X-Cell Tool and Mold, Inc (Comp) ...... Erie, PA ...... 09/23//2002 Plastic injection molds and components. 42,245 La Grange Foundry (GMP) ...... La Grange, MO ...... 09/18//2002 Gray iron and ductile casings. 42,246 Radiall/Larsen Antenna (Comp) ...... Vancouver, WA ...... 09/23/2002 Base station antennas. 42,247 Tecmotiv Corporation (Comp) ...... Tonawanda, NY ...... 08/30/2002 Automobile steering gear boxes. 42,248 Kasper Machine Company (Comp) ...... Madison Heights, MI ...... 09/18/2002 Precision turning and boring machines. 42,249 Enviro Systems Furniture (Comp) ...... Grand Rapids, MI ...... 09/23/2002 Office furniture. 42,250 E.J. Snyder and Co., Inc. (Comp) ...... Albermarle, NC ...... 09/04/2002 Dye and finish cotton knit cloth. 42,251 Southwestern Glass Co. (Comp) ...... Van Buren, AR ...... 10/01/2002 Hand glass. [FR Doc. 02–30059 Filed 11–26–02; 8:45 am] instituted investigations pursuant to Interested persons are invited to BILLING CODE 4510–30–M section 221(a) of the Act. submit written comments regarding the The purpose of each of the subject matter of the investigations to investigations is to determine whether the Director, Division of Trade DEPARTMENT OF LABOR the workers are eligible to apply for Adjustment Assistance, at the address adjustment assistance under title II, shown below, not later than December Employment and Training chapter 2, of the Act. The investigations 9, 2002. Administration will further relate, as appropriate, to the The petitions filed in this case are available for inspection at the Office of Investigations Regarding Certifications determination of the date on which total the Director, Division of Trade of Eligibility To Apply for Worker or partial separations began or Adjustment Assistance, Employment, Adjustment Assistance threatened to begin and the subdivision of the firm involved. and Training Administration, U.S. Petitions have been filed with the The petitioners or any other persons Department of Labor, Room C–5311, 200 Secretary of Labor under section 221(a) showing a substantial interest in the Constitution Avenue, NW., Washington, of the Trade Act of 1974 (‘‘the Act’’) and subject matter of the investigations may DC 20210. are identified in the Appendix to this request a public hearing, provided such Signed in Washington, DC this 7th day of notice. Upon receipt of these petitions, request is filed in writing with the October, 2002. the Director of the Division of Trade Director, Division of Trade Adjustment Edward A. Tomchick, Adjustment Assistance, Employment Assistance, at the address shown below, Director, Division of Trade Adjustment and Training Administration, has not later than December 9, 2002. Assistance. APPENDIX—PETITIONS INSTITUTED ON OCTOBER 7, 2002 Subject firm Date of TA–W (petitioners) Location petition Product(s) 42,210 Presto Products (Wrks) ...... Alamogordo, NM ...... 09/19/2002 Small appliances. 42,211 Motorola—SPS–BMC (Wrks) ...... Mesa, AZ ...... 09/04/2002 Pressure sensor. 42,212 Deluxe Craft Photo Albums (Wrks) ...... Chicago, IL ...... 09/17/2002 Photo albums. 42,213 John Boyle and Assoc., LLC (Comp) ...... Easton, PA ...... 09/16/2002 Bearing housing, castings and machining. 42,214 SPX Valves and Controls (IAM) ...... Sartell, MN ...... 09/16/2002 Valves and controls. 42,215 Agilent Technologies, FSC (Wrks) ...... Colorado Spring, Co ...... 09/03/2002 Financial service. 42,216 Alba-Waldensian, Inc. (Comp) ...... Valdese, NC ...... 08/23/2002 Knitted apparel—undergarments, hosiery. 42,217 Microelectronic Module (Wrks) ...... New Berlin, WI ...... 09/23/2002 Circuit boards. 42,218 Kent Inc. (Comp) ...... Ft. Kent, ME ...... 09/27/2002 Infant sleepwear. 42,219 Celestica Corporation (Comp) ...... Foothill Ranch, CA ...... 09/12/2002 Computer and server products. 42,220 Bo-Jan Garment, Inc. (Comp) ...... Schuylkill Have, PA ...... 09/19/2002 Men and women sportswear, t-shirts, pant. 42,221 Marconi Communications (Wrks) ...... Lorain, OH ...... 09/03/2002 Power supplies—transformers, pc boards. 42,222 WicorAmerica/EHV-Weidmann (Comp) ...... St. Johnsbury, VT ...... 09/07/2002 Insulation for electrical transformers. 42,223 Nash Garment Co. (UNITE) ...... Bailey, NC ...... 07/11/2002 Girls’ dresses. 42,224 Radio Frequency Systems (Wrks) ...... Corvallis, OR ...... 09/16/2002 Amplifiers, duplexers and multicouplers. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70977 APPENDIX—PETITIONS INSTITUTED ON OCTOBER 7, 2002—Continued Subject firm Date of TA–W (petitioners) Location petition Product(s) 42,225 Ametek Aerospace Products (IUE) ...... Wilmington, MA ...... 09/20/2002 Aircraft cables, thermocouples, machine. 42,226 RLA Investments, LC (Wrks) ...... Hialeah, FL ...... 08/29/2002 Micro-chips for computer systems. 42,227 Jabil Circuit, Inc. (Wrks) ...... Meridian, ID ...... 09/23/2002 Circuit board assemblies. [FR Doc. 02–30060 Filed 11–26–02; 8:45 am] instituted investigations pursuant to Interested persons are invited to BILLING CODE 4510–30–M section 221(a) of the Act. submit written comments regarding the The purpose of each of the subject matter of the investigations to investigations is to determine whether the Director, Division of Trade DEPARTMENT OF LABOR the workers are eligible to apply for Adjustment Assistance, at the address adjustment assistance under title II, shown below, not later than December Employment and Training chapter 2, of the Act. The investigations 9, 2002. Administration will further relate, as appropriate, to the The petitions filed in this case are available for inspection at the Office of Investigations Regarding Certifications determination of the date on which total the Director, Division of Trade of Eligibility To Apply for Worker or partial separations begin or Adjustment Assistance, Employment Adjustment Assistance threatened to begin and the subdivision of the firm involved. and Training Administration, U.S. Petitions have been filed with the The petitioners or any other persons Department of Labor, Room C–5311, 200 Secretary of Labor under section 221(a) showing a substantial interest in the Constitution Avenue, NW., Washington, of the Trade Act of 1974 (‘‘the Act’’) and subject matter of the investigations may DC 20210. are identified in the Appendix to this request a public hearing, provided such Signed in Washington, DC this 8th day of notice. Upon receipt of these petitions, request is filed in writing with the November, 2002. the Director of the Division of Trade Director, Division of Trade Adjustment Edward A. Tomchick, Adjustment Assistance, Employment Assistance, at the address shown below, Director, Division of Trade Adjustment and Training Administration, has not later than December 9, 2002. Assistance. APPENDIX—PETITIONS INSTITUTED BETWEEN NOVEMBER 4, 2002 AND NOVEMBER 8, 2002 Subject firm Date of Date of TA–W (petitioners) Location institution petition 50,001 Reliant Bolt, Inc (USS) ...... Bedford Park, IL ...... 11/04/2002 11/04/2002 50,002 Longview Fibre Leavenworth Wood Products Leavenworth, WA ...... 11/04/2002 11/04/2002 (CIW). 50,003 Weyerhaeuser Longview Lumber (IAM) ...... Longview, WA ...... 11/04/2002 11/04/2002 50,004 Spang and Company (IBEW) ...... East Butler, PA ...... 11/04/2002 11/04/2002 50,005 Bottoms Group, Inc. (Comp) ...... Auburn, ME ...... 11/05/2002 11/04/2002 50,006 Sherman Lumber Company (Wkrs) ...... Sherman Station, ME ...... 11/05/2002 11/04/2002 50,007 Newell Rubbermaid (Wkrs) ...... Freeport, IL ...... 11/05/2002 11/04/2002 50,008 Storage Technology Corp. (Wkrs) ...... Brooklyn Park, MN ...... 11/05/2002 11/04/2002 50,009 Dodger Industries, Inc. (Comp) ...... Eagle Grove, IA ...... 11/05/2002 11/04/2002 50,010 Vulcan Chemicals (Wkrs) ...... Wichita, KS ...... 11/05/2002 11/04/2002 50,011 Cooper Power Systems (Comp) ...... E. Stroudsburg, PA ...... 11/05/2002 11/04/2002 50,012 PD Wire and Cable (Comp) ...... Laurinburg, NC ...... 11/06/2002 11/05/2002 50,013 Georgia Pacific Corp., OSB Plant (PACE) ...... Baileyville, ME ...... 11/06/2002 11/04/2002 50,014 KWIKSET, Subsidiary of Black and Decker Waynesboro, GA ...... 11/06/2002 11/05/2002 (Comp). 50,015 Houlton International Corp. (Comp) ...... Houlton, ME ...... 11/06/2002 11/05/2002 50,016 Laird Technologies (Wkrs) ...... Del. Watergap, PA ...... 11/06/2002 11/05/2002 50,017 Blue bird Midwest (Wkrs) ...... Mt. Pleasant, IA ...... 11/06/2002 11/05/2002 50,018 Value Finishing Company (Comp) ...... Mentor, OH ...... 11/06/2002 11/05/2002 50,019 Domtar AW, WI Operations (PACE) ...... Port Edwards, WI ...... 11/06/2002 11/05/2002 50,020 DMI-Arkansas, Inc. (Wkrs) ...... Bald Knob, AR ...... 11/06/2002 11/05/2002 50,021 Buehler Motor, Inc. (Comp) ...... Kinston, NC ...... 11/06/2002 11/05/2002 50,022 Andrew Corporation (Comp) ...... Richardson, TX ...... 11/06/2002 11/04/2002 50,023 Andrew Corporation (Comp) ...... Burlington, IA ...... 11/06/2002 11/04/2002 50,024 Hudson Respitory Care, Inc. (Comp) ...... Argyle, NY ...... 11/06/2002 11/04/2002 50,025 Andrew Corporation (Comp) ...... Orland Park, IL ...... 11/07/2002 11/04/2002 50,026 Andrew Corporation (Comp) ...... Addison, IL ...... 11/07/2002 11/04/2002 50,027 Stimson Lumber Company (Comp) ...... Libby, MT ...... 11/07/2002 11/06/2002 50,028 Tyco Electronics (Comp) ...... Winston-Salem, NC ...... 11/07/2002 11/05/2002 50,029 Half Moon Bay Fisheries (Comp) ...... Kodiak, AK ...... 11/07/2002 11/05/2002 50,030 Fishing Vessel Kiavak (Comp) ...... Kodiak, AK ...... 11/07/2002 11/05/2002 50,031 Saunders Brothers, Inc. (Wkrs) ...... Westbrook, ME ...... 11/07/2002 11/07/2002 50,032 Kent, Inc. (Comp) ...... Fort Kent, ME ...... 11/07/2002 11/05/2002 50,033 Carolina Circuits, a/k/a CMAC of America (Comp) Greenville, SC ...... 11/07/2002 11/06/2002 50,034 Plastic Products Co. (Comp) ...... Moline, IL ...... 11/08/2002 11/05/2002 50,035 Strong Wood Products, Inc. (Comp) ...... Strong, ME ...... 11/08/2002 11/04/2002 VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70978 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices APPENDIX—PETITIONS INSTITUTED BETWEEN NOVEMBER 4, 2002 AND NOVEMBER 8, 2002—Continued Subject firm Date of Date of TA–W (petitioners) Location institution petition 50,036 Nortel Network (Wkrs) ...... RTP, NC ...... 11/08/2002 11/05/2002 50,037 Hubbard Company (The) (Comp) ...... Breman GA ...... 11/08/2002 11/06/2002 50,038 Hi Specialty America (Wkrs) ...... Irwin, PA ...... 11/08/2002 11/05/2002 50,039 Vista Wood Products (Comp) ...... Lafayette, TN ...... 11/08/2002 11/07/2002 50,040 Vista Wood Products (Comp) ...... Greensburg, KY ...... 11/08/2002 11/07/2002 50,041 Woods Industries (Comp) ...... Carmel, IN ...... 11/08/2002 11/06/2002 50,042 Chamco Equipment (Comp) ...... Vancouver, WA ...... 11/08/2002 11/05/2002 50,043 Dynagear, Inc. (Comp) ...... York, PA ...... 11/08/2002 11/05/2002 [FR Doc. 02–30061 Filed 11–26–02; 8:45 am] The union official submitting the Signed at Washington, DC, this 12th day of BILLING CODE 4510–30–M petition has requested that the petition November 2002. be withdrawn. Consequently, further Linda G. Poole, investigation in this case would serve Certifying Officer, Division of Trade DEPARTMENT OF LABOR no purpose and the investigation has Adjustment Assistance. been terminated. [FR Doc. 02–30066 Filed 11–26–02; 8:45 am] Employment and Training BILLING CODE 4510–30–P Administration Signed in Washington, DC, this 14th day of November 2002. [TA–W–42,241] Elliott S. Kushner, DEPARTMENT OF LABOR Certifying Officer, Division of Trade Siemens Medical Solutions, Inc., Adjustment Assistance. Employment and Training Ultrasound Division Issaquah, WA; [FR Doc. 02–30073 Filed 11–26–02; 8:45 am] Administration Notice of Termination of Investigation BILLING CODE 4510–30–P [NAFTA–6568] Pursuant to section 221 of the Trade Act of 1974, an investigation was DEPARTMENT OF LABOR State of Alaska Commercial Fisheries initiated on March 25, 2002 in response Entries Commission Permit to petition filed by the company on Employment and Training #503T65655K King Salmon, AK; Notice behalf of workers at Siemens Medical Administration of Termination of Investigation Solutions, Inc., Ultrasound Division, Issaquah, Washington. Pursuant to Title V of the North [NAFTA–6788] The petitioner has requested that the American Free Trade Agreement Implementation Act (Pub. L. 103–182) petition be withdrawn. Consequently, State of Alaska Commercial Fisheries concerning transitional adjustment further investigation in this case would Entries Commision Permit # 56319H, assistance, hereinafter called NAFTA– serve no purpose, and the investigation King Salmon, AK; Notice of TAA and in accordance with section has been terminated. Termination of Investigation 250(a), Subchapter D, Chapter 2, Title II, Signed in Washington, DC, this 15th day of of the Trade Act of 1974, as amended November, 2002. Pursuant to Title V of the North American Free Trade Agreement (19 U.S.C. 2273), an investigation was Linda G. Poole, initiated on September 5, 2002, in Certifying Officer, Division of Trade Implementation Act (Pub. L. 103–182) concerning transitional adjustment response to a petition filed by the Adjustment Assistance. Bristol Bay Native Association on behalf [FR Doc. 02–30071 Filed 11–26–02; 8:45 am] assistance, hereinafter called NAFTA– TAA and in accordance with Section of State of Alaska Commercial Fisheries BILLING CODE 4510–30–P 250(a), Subchapter D, Chapter 2, Title II, Entry Commission Permit of the Trade Act of 1974, as amended #503T65655K, King Salmon, Alaska. The workers stopped fishing in July of DEPARTMENT OF LABOR (19 U.S.C. 2273), an investigation was initiated on September 5, 2002, in 2000, more than one year from the Employment and Training response to a petition filed by the September 5, 2002, petition date. Administration Bristol Bay Native Association on behalf Section 223(b)(1) of the Trade Act of of State of Alaska Commercial Fisheries 1974, as amended, provides that a [TA–W–42,325] Entry Commission Permit #56319H, certification may not apply to a worker King Salmon, Alaska. whose separation from employment U.S. Repeating Arms Co. New Haven, The workers stopped fishing in July of occurred more than one year prior to the CT; Notice of Termination of 2001, more than one year from the date the petition was filed. Investigation September 5, 2002, petition date. Consequently, further investigation in this case would serve no purpose, and Pursuant to section 221 of the Trade Section 223(b)(1) of the Trade Act of the investigation has been terminated. Act of 1974, an investigation was 1974, as amended, provides that a initiated on November 1, 2002, in certification may not apply to a worker Signed at Washington, DC, this 15th day of response to a petition filed by the whose separation from employment November 2002. International Association of Machinists occurred more than one year prior to the Linda G. Poole, and Aerospace Workers Union date the petition was filed. Certifying Officer, Division of Trade (IAMAW), District Lodge 26 on behalf of Consequently, further investigation in Adjustment Assistance. workers at U.S. Repeating Arms this case would serve no purpose, and [FR Doc. 02–30075 Filed 11–26–02; 8:45 am] Company, New Haven, Connecticut. the investigation has been terminated. BILLING CODE 4510–30–P VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70979 DEPARTMENT OF LABOR Bristol Bay Native Association on behalf Also, the Department has learned of State of Alaska Commercial Fisheries from the State that all six workers have Employment and Training Entry Commission Permit #61155V, been separated from employment and Administration Dillingham, Alaska. there is no need to have the certification [NAFTA–6632] The workers stopped fishing in in effect for two years from the date of August of 2001, more than one year issuance. State of Alaska Commercial Fisheries from the September 5, 2002, petition Based on this new information, the Entries Commission Permit # 61155V, date. Section 223(b)(1) of the Trade Act Department is again amending the Dillingham, AK; Notice of Termination of 1974, as amended, provides that a certification to limit coverage to workers of Investigation certification may not apply to a worker producing men’s slacks at Marietta whose separation from employment Sportswear Manufacturing Co., Inc., Pursuant to Title V of the North occurred more than one year prior to the Dallas, Texas, whose wages were American Free Trade Agreement date the petition was filed. reported to the State of Oklahoma under Implementation Act (Pub. L. 103–182) Consequently, further investigation in the UI tax account for Glen Oaks concerning transitional adjustment this case would serve no purpose, and Industries. Furthermore, the assistance, hereinafter called NAFTA– the investigation has been terminated. certification will expire October 4, 2002. TAA and in accordance with section The amended notice applicable to 250(a), Subchapter D, Chapter 2, Title II, Signed at Washington, DC, this 15th day of November 2002. NAFTA–6282 is hereby issued as of the Trade Act of 1974, as amended follows: (19 U.S.C. 2273), an investigation was Linda G. Poole, initiated on September 5, 2002, in Certifying Officer, Division of Trade Workers producing men’s slacks at Glen response to a petition filed by the Adjustment Assistance. Oaks Industries, Dallas, Texas, whose wages [FR Doc. 02–30077 Filed 11–26–02; 8:45 am] were reported to Glen Oaks Industries in Bristol Bay Native Association on behalf Marietta, Oklahoma, who became totally or of State of Alaska Commercial Fisheries BILLING CODE 4510–30–P partially separated from employment on or Entry Commission Permit #61155V, after June 13, 2001 through October 4, 2002, Dillingham, Alaska. are eligible to apply for NAFTA-TAA under The workers stopped fishing in July DEPARTMENT OF LABOR Section 250 of the Trade Act of 1974. 10, 2001, more than one year from the Employment and Training September 5, 2002, petition date. Signed in Washington, DC, this 4th day of Administration Section 223(b)(1) of the Trade Act of October 2002. Richard Church, 1974, as amended, provides that a [NAFTA–6282] certification may not apply to a worker Certifying Officer, Division of Trade whose separation from employment Glen Oaks Industries, Inc., Dallas, TX; Adjustment Assistance. occurred more than one year prior to the Amended Certification Regarding [FR Doc. 02–30067 Filed 11–26–02; 8:45 am] date the petition was filed. Eligibility To Apply for NAFTA- BILLING CODE 4510–30–P Consequently, further investigation in Transitional Adjustment Assistance this case would serve no purpose, and In accordance with Section 250(a), the investigation has been terminated. NATIONAL AERONAUTICS AND Subchapter D, Chapter 2, Title II, of the Signed at Washington, DC, this 15th day of SPACE ADMINISTRATION November 2002. Trade Act of 1974, as amended (19 U.S.C. 2273), the Department of Labor [Notice: 02–144] Linda G. Poole, issued a Certification of Eligibility to Certifying Officer, Division of Trade Apply for NAFTA Transitional Notice of Information Collection Under Adjustment Assistance. Adjustment Assistance on August 21, OMB Review [FR Doc. 02–30076 Filed 11–26–02; 8:45 am] 2002, applicable to workers of Glen AGENCY: National Aeronautics and BILLING CODE 4510–30–P Oaks Industries, Marietta Sportswear Space Administration (NASA). Manufacturing Company, Inc., Dallas, ACTION: Notice of information collection DEPARTMENT OF LABOR Texas. The certification was amended on September 25, 2002, to include under OMB review. Employment and Training workers formerly employed at Marietta SUMMARY: The National Aeronautics and Administration Sportswear Manufacturing Co., Inc., Space Administration, as part of its Marietta, Oklahoma. The notice will [NAFTA–6687] continuing effort to reduce paperwork soon be published in the Federal and respondent burden, invites the State of Alaska Commercial Fisheries Register. general public and other Federal Entries Commission Permit #50216C, At the request of the State agency, the agencies to take this opportunity to Dillingham, AK; Notice of Termination Department reviewed the certification comment on proposed and/or of Investigation for workers of the subject firm. New continuing information collections, as information provided by the company required by the Paperwork Reduction Pursuant to Title V of the North official shows that wages for the six Act of 1995 (Pub. L. 104–13, 44 U.S.C. American Free Trade Agreement workers engaged in the production of 3506(c)(2)(A)). The information Implementation Act (Pub. L. 103–182) men’s slacks at the Dallas, Texas, obtained in this collection will assist concerning transitional adjustment location were reported to the NASA in assessing the effectiveness of assistance, hereinafter called NAFTA– Unemployment Insurance (UI) tax aviation safety programs. TAA and in accordance with section account for Glen Oaks Industries in 250(a), Subchapter D, Chapter 2, Title II, Oklahoma. The company official also DATES: All comments should be of the Trade Act of 1974, as amended reports that Marietta Sportswear submitted on or before December 27, (19 U.S.C. 2273), an investigation was Manufacturing Co., Inc., is no longer an 2002. initiated on September 5, 2002, in entity of Glen Oaks Industries, and thus, ADDRESSES: All comments should be response to a petition filed by the not applicable to this worker group. addressed to Desk Officer for NASA; VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70980 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Office of Information and Regulatory Summary of NIST report on irradiated decommission their facilities when Affairs; Office of Management and records. licensed activities cease, and to request Budget; Room 10236; New Executive Legislative records outside of official termination of their radioactive Office Building; Washington, DC, 20503. custody. materials licenses. The purpose of the FOR FURTHER INFORMATION CONTACT: Ms. Follow-up discussion. Timeliness Rule is to reduce the Nancy Kaplan, NASA Reports Officer, Activities report of the Center for potential risk to the public and (202) 358–1372. Legislative Archives. environment that may result from Title: National Aviation Operations Other current issues and new business. delayed decommissioning of inactive Monitoring Service: General Aviation The meeting is open to the public. facilities and sites. The purpose of the Pilots. Dated: November 21, 2002. proposed action is to remove the two OMB Number: 2700–0102. Mary Ann Hadyka, former burial sites from the University Type of review: Extension. Committee Management Officer. of Wyoming’s radioactive materials Need and Uses: The information license because the licensee no longer [FR Doc. 02–30012 Filed 11–26–02; 8:45 am] collected will be analyzed and used by uses the two burial sites. The licensee NASA Aviation Safety Program BILLING CODE 7515–01–P would continue to possess radioactive managers to evaluate their progress in material under its NRC license at other improving aviation over the next locations specifically listed in the decade. NUCLEAR REGULATORY license. If removed from the license, the Affected Public: Individuals or COMMISSION two burial sites would no longer be households. [Docket No. 030–01176] subject to NRC regulatory oversight, and Number of Respondents: 10,000. the licensee would be in compliance Responses Per Respondent: 1. Environmental Assessment and with Timeliness Rule requirements. Annual Responses: 10,000. Finding of No Significant Impact; 1 Hours Per Request: Approx. ⁄2 hour. Materials License No. 49–09955–10, History/Facility Description Annual Burden Hours: 6,280. University of Wyoming, Laramie, WY The University of Wyoming has used Frequency of Report: Quarterly; radioactive material since about 1950. Annually. The U.S. Nuclear Regulatory The licensee disposed of radioactive Commission (NRC) is considering the Patricia Dunnington, waste material at two separate burials approval of the University of Wyoming’s Deputy Chief Information Officer, Office of sites from about 1952 until 1985. The the Administrator. revised decommissioning plan for two licensee was authorized to dispose of former burial sites located near Laramie, [FR Doc. 02–30135 Filed 11–26–02; 8:45 am] radioactive material by burial in Wyoming, and amending NRC Materials BILLING CODE 7510–01–P accordance with 10 CFR 20.304 between License 49–09955–10 to remove the two 1959–1981. Prior to 1959, burial of sites from the license. radioactive material was not authorized NATIONAL ARCHIVES AND RECORDS Environmental Assessment by § 20.304 but may have been ADMINISTRATION conducted under a specific U.S. Atomic Background Energy Commission authorization or Advisory Committee on the Records of The University of Wyoming (licensee) license condition at that time. During Congress; Meeting submitted a decommissioning plan to 1981, § 20.304 was rescinded by the the NRC by letter dated October 21, NRC. The licensee then conducted AGENCY: National Archives and Records 1998. The licensee subsequently burials in accordance with § 20.302 Administration. submitted a revised decommissioning until 1985. During 1985, the NRC ACTION: Notice of meeting. plan to the NRC by letter dated May 30, rejected the licensee’s request to 2001. The licensee requested that two continue to dispose of radioactive SUMMARY: In accordance with the material by burial in accordance with Federal Advisory Committee Act, the former radioactive material burial sites located near Laramie, Wyoming, be § 20.302. As a result, burial of National Archives and Records radioactive material was permanently Administration (NARA) announces a released for unrestricted use. The NRC is considering the issuance of an discontinued during March 1985. meeting of the Advisory Committee on The first burial site was known as the the Records of Congress. The committee amendment to Materials License 49– 09955–10 to release these two burial Quarry site. This disposal site was a dry advises NARA on the full range of borehole located at a University-owned programs, policies, and plans for the sites for unrestricted use. The purpose of this Environmental Assessment (EA) sandstone quarry. The quarry is situated Center for Legislative Archives in the approximately 7.5 miles (12 kilometers) Office of Records Services. is to assess the environmental consequences of this license to the northeast of Laramie. The DATES: December 9, 2002, from 10 a.m. amendment request. University believes that the Quarry site to 11 a.m. was used during 1952–1957. The ADDRESSES: Whittall Pavilion, Library of Proposed Action licensee cannot pinpoint the exact Congress, Thomas Jefferson Building, The proposed action is to amend NRC location of the 100-foot (30.48 meters) Ground Floor. Materials License 49–09955–10 to borehole but is aware of the general FOR FURTHER INFORMATION CONTACT: release for unrestricted use the two location of the borehole. Michael L. Gillette, Director, Center for former burial sites located near Laramie, The airport site is located on Legislative Archives, (202) 501–5350. Wyoming. The licensee would not be University-owned land situated SUPPLEMENTARY INFORMATION: required to remediate the two sites if the approximately 2 miles (3.2 kilometers) NRC approves the license amendment west of Laramie. This site is located Agenda request. near the Laramie Municipal Airport and Overview of Committee’s activities. consists of approximately 40,000 square House services to departing Members Purpose and Need for Proposed Action feet (3716 square meters) of land. This concerning the disposition of their NRC regulation 10 CFR 30.36 (the second site was used from 1959 until papers. Timeliness Rule) requires licensees to 1985. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70981 Radiological Status licensee, the Quarry site is unoccupied staff concluded that the doses from Based on a records review, the and is occasionally used for livestock exposure to residual radioactive licensee determined that it most likely grazing. There are no ponds on the material currently situated at both disposed of only microcurie or property. The area is sparsely covered locations are sufficiently low to allow millicurie quantities of short-lived by vegetation that consists mostly of for the unrestricted release of the sites prairie grasses with some interspersed in accordance with 10 CFR 20.1402. radioisotopes in the Quarry site shrubs and sagebrush. The site is borehole, including phosphorus-32, Environmental Impacts of Alternative 2 roughly 750 square feet (70 square sulfur-35, iron-59, zinc-65, and iodine- on Occupational and Public Health meters) in size and is located in NW1⁄4 131. Carbon-14, a long-lived beta- of NW1⁄4 of Section 5, Range 72 West, If the licensee were required to emitting radionuclide, apparently was Township 16 North. The licensee remediate the two burial sites, the also buried at this site. The licensee’s installed a monitoring well down- individuals conducting reclamation request to release the two former burial gradient of the borehole during 1994 in would be subjected to exposure to sites for unrestricted use is based on order to obtain groundwater samples for radioactive material. The radionuclides dose modeling calculations using the analyses. During well installation, a of concern are hydrogen-3 and carbon- NRC-approved DandD computer code. continuous flow of groundwater was 14. Both of these radionuclides emit low The licensee chose the drinking water established at about 236 feet (72 meters) energy beta particles. From an scenario from DandD Version 1.0 for the below the surface. Previously licensed occupational health and safety Quarry site because this site cannot be radioactive material was not detected in standpoint, the worst case scenario is farmed. The licensee calculated a the water samples that were collected the intentional exhumation of the resident dose of up to 2.74 millirems per during late-1994. buried wastes without any radiological year using DandD, a value well below The airport site consists of controls in place. This scenario is the 25-millirem limit specified in 10 approximately 40,000 square feet (3716 unlikely because the licensee would be CFR 20.1402. square meters) of land. This burial site expected to have a radiation protection The licensee disposed of a number of is located in an 861-acre (348 hectares) program in place during remediation. radionuclides at the airport site. The tract of University-owned land bounded Even without any radiological controls, radionuclides of concern at the airport by Highway 130 to the north, near it is highly unlikely that any worker site are hydrogen-3 and carbon-14. At Highway 230 to the south, the airport to would receive a dose during this site, the licensee chose the resident the west, and West Laramie to the east. reclamation that would exceed the farmer scenario using DandD Version This site is located in NE1⁄4 of NW1⁄4 of occupational dose limits specified in 10 2.1.0. Using several NRC-approved Section 35, Range 74 West, Township CFR 20.1201 because of the quantities variations to the DandD default 16 North. The site is in a ‘‘steppe’’ and types of radionuclides present in parameters (the default parameters that climate zone, typical of semi-arid the waste material. Therefore, if were adjusted for the airport site were grassland prairies. The vegetation is reclamation were to occur, it is probable the diet-fruit, number of unsaturated well suited for livestock grazing and that occupational exposures would be layers, unsaturated zone thickness, and consists of grasses, sedges, some forbs, within the dose limits specified in the crop yield parameters), the licensee and a few scattered shrubs. According to NRC’s regulations. calculated that the resident farmer dose information provided by the licensee, If remediation were to occur, the would be less than or equal to 22.5 the nearest aquifer is located at least 700 potential harm to the public from millirems per year. This calculated feet (213 meters) below the surface. exposure to radioactive material would value is also below the 25-millirem limit Further, the shallow groundwater is be bounded by the DandD calculations. specified in 10 CFR 20.1402. unfit for human and livestock The DandD scenario used by the licensee assumed that the waste Alternatives consumption. As such, city water is the predominate water source and is piped material volume was evenly distributed The licensee asks that the NRC to residents and businesses near the in the top 6 inches (15 centimeters) of approve the license amendment request airport. soil. Therefore, the remediation of the as submitted. The alternatives available two sites would most likely have a to the NRC to the proposed action are: Environmental Impacts of the Proposed minimal radiological impact on 1. Deny the amendment request by Action on Occupational and Public members of the public. taking no action; or Health Remediation of the sites may have 2. Approve the license amendment The licensee’s request to release the short-term health and safety request but require the licensee to take two burial sites for unrestricted use is consequences caused by the excavation, some additional action not specified in based, in part, on dose modeling packaging, and shipping of the residual the revised decommissioning plan such calculations conducted using the NRC- radioactive material. These non- as remediation of the two sites. approved DandD computer code. The radiological impacts would include the The Timeliness Rule requirements do licensee concluded that the annual dose normal risks of exhuming the wastes not allow the NRC to implement the no to members of the public for the Quarry with earth-moving equipment and action alternative; therefore, Alternative site would be no more than 2.74 transportation of the material to an out- 1 is not a viable option and will be millirems per year, while the annual of-state disposal facility. The risks eliminated from further study and dose for the airport site would be no include death or injury from a consideration in this EA. more than 22.5 millirems per year. Both construction or transportation accident. calculated doses are below the 25 There would be minimal risk to Affected Environment millirem per year dose limit specified in members of the public from exposure to The Quarry site is situated 10 CFR 20.1402. radioactive wastes during transport approximately 8 miles (13 kilometers) to The NRC conducted a technical because the radionuclides of concern the northeast of Laramie. The exact review of the licensee’s DandD are low energy beta emitters. The beta location of the borehole is not known by calculations. This review is documented particles would not be able to penetrate the licensee. According to the in an internal NRC Memorandum dated the walls of the shipping container. The documentation provided by the December 31, 2001. In summary, the only radiological risks associated with VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70982 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices the transport of the wastes would refilled with clean soil and contoured or Conclusion involve the cleanup of any spilled fenced to prevent inadvertent intrusion. material. In the unlikely event that a Vegetation in the vicinity of the Based on its review, the NRC staff has spill were to occur during transport, reclaimed site would be temporarily concluded that the environmental radiological controls would most likely disturbed. impacts associated with the proposed be implemented during the cleanup of Mitigation measures that could reduce action are not significant; and therefore, the spilled waste material. Therefore, the adverse impacts or enhance do not warrant denial of the license the risks associated with the transport of beneficial impacts were considered by amendment request. The NRC staff the waste material is minimal. the NRC. The licensee conducted an As believes that the proposed action will If remediated, the material would be Low As Reasonably Achievable result in minimal environmental transported to an out-of-state disposal (ALARA) analysis to compare the impacts. The staff has determined that facility. benefit from averted dose achieved by the proposed action, approval of the remediation with the costs of cleanup license amendment request to release Environmental Impacts of Proposed and waste disposal. The licensee the two former burial sites for Action on Effluent Releases, calculated the benefit from the unrestricted use, is the appropriate Environmental Monitoring, Water collective averted dose using the alternative for selection. Resources, Noise, Geology, Soils, Air guidance provided in (draft) Regulatory Quality, Demography, Biota, Cultural List of Preparers Guide DG–4006, Demonstrating and Historic Resources, and Visual/ Compliance with the Radiological This EA was prepared by Robert Scenic Quality Criteria for License Termination, dated Evans, Senior Health Physicist, Fuel The NRC staff considered the August 1998. The licensee calculated a Cycle & Decommissioning Branch, potential impacts of the leaching of total benefit of $8398 from the averted Division of Nuclear Materials Safety, radioactive and non-radioactive material dose for the airport burial site, assuming Region IV, and reviewed by Dr. D. Blair into the groundwater. The shallow a monetary value of $2,000 per rem. Spitzberg, Chief, Fuel Cycle & surface groundwater in the vicinity of The licensee also calculated the Decommissioning Branch. the two sites is not used as a drinking remediation costs for decommissioning List of References water supply and is unfit for human the airport burial site. The estimated consumption. Local members of the cost of excavating, transporting and Documents pertaining to this EA are public obtain water from the city. The disposing of the material at an offsite available for public inspection in the impacts that potentially contaminated low-level waste disposal facility was NRC Public Document Room or from the groundwater would have on members of about $7.6 million. The majority of the Publicly Available Records (PARS) the public was considered as part of the cost involves waste disposal at an offsite component of NRC’s document system DandD modeling scenarios. In summary, location. The licensee also points out (ADAMS). ADAMS is accessible from the NRC believes that, if left that the public would be economically the NRC Web site at http://www.nrc.gov/ undisturbed, the two sites would have harmed since the University is a reading-rm/adams.html (the Public a minimal impact on the environs of the publicly funded school and the $7.6 Electronic Reading Room). ADAMS sites, including groundwater. million would have to come from the accession numbers are located in The NRC contacted both the U.S. Fish state general fund or diverted from the parentheses following the reference. and Wildlife Service and the Wyoming University’s budget. 1. NRC Inspection Report 030–01176/ State Historic Preservation Office for In summary, the NRC agrees that the 95–01 dated May 9, 1995 (not available their respective assessments. The Fish cost of remediation would exceed the in ADAMS). and Wildlife Service concluded that it financial benefit from the averted dose 2. University of Wyoming letter to was unlikely that the Proposed Action that would be saved if the airport site NRC dated October 21, 1998 (not would adversely affect any threatened were to be remediated. or endangered species. The Wyoming The licensee did not conduct an available in ADAMS). State Historic Preservation Officer ALARA analysis of the Quarry site, in 3. University of Wyoming letter to determined that no historic properties part, because the exact location of the NRC dated May 30, 2001 would be affected by the Proposed former borehole is not known. (ML011580440). Action. The NRC has found no other activities 4. NRC Memorandum, ‘‘Review of in the areas that could result in Dose Modeling Supporting the Revised Environmental Impacts of Alternative 2 cumulative impacts. Decommissioning Plan for the Quarry on Effluent Releases, Environmental and Airport Burial Sites,’’ dated Monitoring, Water Resources, Noise, Agencies and Persons Contacted December 31, 2001 (ML013540074). Geology, Soils, Air Quality, The NRC contacted both the U.S. 5. NRC Letter to U.S. Fish and Demography, Biota, Cultural and Department of Interior, Fish and Historic Resources, and Visual/Scenic Wildlife Service dated April 24, 2002 Wildlife Service, and the Wyoming (ML021140673). Quality State Historic Preservation Office during 6. NRC Letter to Wyoming State The remediation of the two former the development of this EA. The Fish Historic Preservation Office dated April burial sites would cause some and Wildlife Services concluded that it 24, 2002 (ML021140684). environmental harm. The waste material was unlikely that the Proposed Action would have to be excavated, packaged, would adversely affect any threatened 7. U.S. Fish and Wildlife Service and transported to an out-of-state or endangered species. Also, according letter to NRC dated May 20, 2002 disposal facility. The excavation process to the Wyoming State Historic (ML021500264). would be accomplished by heavy Preservation Office, the Proposed 8. Wyoming State Historic equipment and trucks that would Action would not affect any historic Preservation Office letter to NRC dated disturb the general area. The prevailing properties. The Wyoming Emergency June 17, 2002 (ML 021830731). winds will most likely disperse some of Management Agency has reviewed the 9. Wyoming Emergency Management the excavated material offsite. The proposed action and had no additional Agency letter to NRC dated September resulting surface void would have to be comments. 10, 2002 (ML022690527). VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70983 Finding of No Significant Impact be closed to protect information SunAmerica, FSLIC and VALIC are Pursuant to the National provided in confidence by a foreign collectively referred to herein as Environmental Policy Act of 1969 source pursuant to 5 U.S.C. 552b(c)(4).] ‘‘Additional Life Company Applicants’’) (NEPA) and the Commission’s The agenda for December 6 and 7, (Variable Account Nine, FS Separate regulations in 10 CFR part 51, the 2002, remains the same as previously Account and VALIC Separate Account Commission has determined that there published in the Federal Register on are collectively referred to herein as will not be a significant effect on the Wednesday, November 20, 2002 (67 FR ‘‘Accounts’’); quality of the environment resulting 70094). b. Permit, under specific from the approval of the revised For further information, contact: Dr. circumstances, the recapture of certain decommissioning plan and release of Sher Bahadur, Associate Director for credits applied to premium payments the two former burial sites for Technical Support, ACRS, (Telephone: made under the flexible premium unrestricted use. Accordingly, the 301–415–0138), between 7:30 a.m. and deferred variable annuity contracts preparation of an Environmental Impact 4:15 p.m., EST. (‘‘Contracts’’) to be issued by Additional Statement is not required for the Dated: November 21, 2002. Applicants; proposed amendment to Materials Andrew L. Bates, c. Extend the relief granted by the License 49–09955–10, which will Advisory Committee Management Officer. Existing Order to any National remove the Quarry and airport sites Association of Securities Dealers, Inc. [FR Doc. 02–30100 Filed 11–26–02; 8:45 am] from the license. This determination is (‘‘NASD’’) member broker-dealer based on the foregoing EA performed in BILLING CODE 7590–01–P controlling or controlled by, or under accordance with the procedures and common control with, any Additional criteria in 10 CFR part 51. Life Company Applicant, whether This EA and other documents related SECURITIES AND EXCHANGE existing or created in the future, that to this proposed action are available for COMMISSION serves as a distributor or principal public inspection and copying at the [Rel. No. IC–25828; File No. 812–12899] underwriter of the Contracts offered by NRC Public Document Room in NRC’s Additional Applicants (collectively One White Flint North Headquarters AIG Life Insurance Company, et al. ‘‘Affiliated Broker-Dealers’’); building, located at 11555 Rockville d. Expand the definition of ‘‘Future Pike (first floor), Rockville, Maryland. November 20, 2002. Contracts’’ to include contracts to be The documents may also be viewed in AGENCY: Securities and Exchange issued by any Additional Life Company the Agency-wide Documents Access and Commission (‘‘SEC’’ or ‘‘Commission’’). Applicants that are substantially similar Management System (ADAMS) Public ACTION: Notice of an application for an in all material respects to the deferred Electronic Reading Room at Web order pursuant to Section 6(c) of the variable annuity contracts covered by address http://www.nrc.gov/reading-rm/ Investment Company Act of 1940 (the the Existing Order; and adams.html. ‘‘Act’’) granting exemptions from the e. Expand the definition of ‘‘Other Dated in Arlington, Texas, this 19th day of provisions of Sections 2(a)(32), 22(c) Accounts’’ to include any existing or November, 2002. and 27(i)(2)(A) of the Act and Rule 22c- future separate accounts of Additional For the Nuclear Regulatory Commission. 1 thereunder. Life Company Applicants. D. Blair Spitzberg, FILING DATE: The application was filed APPLICANTS: Chief, Fuel Cycle Decommissioning Branch, AIG Life Insurance on October 28, 2002. Division of Nuclear Materials Safety, Region Company (‘‘AIG Life’’) and its Variable HEARING OR NOTIFICATION OF HEARING: IV. Account I (the ‘‘Variable Account’’), An order granting the application will be [FR Doc. 02–30098 Filed 11–26–02; 8:45 am] American International Life Insurance issued unless the SEC orders a hearing. BILLING CODE 7590–01–P Company of New York (‘‘AIL’’), AIG SunAmerica Life Assurance Company Interested persons may request a (‘‘AIG SunAmerica’’) and its separate hearing by writing to the SEC’s NUCLEAR REGULATORY account Variable Annuity Account Nine Secretary and serving Applicants with a COMMISSION (‘‘Variable Account Nine’’), First copy of the request, personally or by SunAmerica Life Insurance Company mail. Hearing requests should be Advisory Committee on Reactor (‘‘FSLIC’’) and its separate account FS received by the SEC by 5:30 p.m. on Safeguards; Revised Variable Separate Account (‘‘FS December 16, 2002, and should be Separate Account’’), The Variable accompanied by proof of service on The agenda for the 498th meeting of Applicants, in the form of an affidavit the Advisory Committee on Reactor Annuity Life Insurance Company (‘‘VALIC’’) and its separate account or, for lawyers, a Certificate of Service. Safeguards scheduled to be held on Hearing requests should state the nature December 5–7, 2002, in Conference VALIC Separate Account (‘‘VALIC Separate Account’’), and AIG Equity of the writer’s interest, the reason for the Room T–2B3, 11545 Rockville Pike, request, and the issues contested. Rockville, Maryland, has been revised to Sales Corp. (‘‘AIGESC’’) (collectively, the ‘‘Applicants’’). Persons who wish to be notified of a Close the following session on hearing may request notification by SUMMARY OF APPLICATION: Applicants Thursday, December 5, 2002. writing to the SEC’s Secretary. 1:30 P.M.—2:15 P.M.: Meeting with seek an order under Section 6(c) of the Mr. Lawrence Williams, Her Majesty’s Act to amend an existing order ADDRESSES: Secretary, SEC, 450 Fifth Chief Inspector, Nuclear Installations (Investment Company Act Release No. Street, NW., Washington DC 20549– Inspectorate (NII), United Kingdom 24748, dated November 22, 2000, File 0609. Applicants: Christine A. Nixon, (U.K.) (Closed)—The Committee will No. 812–11982) (‘‘Existing Order’’) to: Esq., AIG SunAmerica Life Assurance hold discussions with Mr. Williams, a. Extend the Existing Order to AIG Company, 1 SunAmerica Center, Los NII, U.K., regarding several items of SunAmerica, Variable Account Nine, Angeles, California 90067–6002. mutual interest, including pre- FSLIC, FS Separate Account, VALIC and FOR FURTHER INFORMATION CONTACT: decisional plans to expand the nuclear VALIC Separate Account (collectively Kenneth C. Fang, Attorney, or Zandra Y. program in U.K. [Note: This session will ‘‘Additional Applicants’’) (AIG Bailes, Branch Chief, Office of Insurance VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70984 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Products, Division of Investment and annuity business in the state of New to the reserves and other contract Management at (202) 942–0670. York. It is an indirect, wholly owned liabilities with respect to the Account is SUPPLEMENTARY INFORMATION: The subsidiary of AIG. FSLIC may establish not chargeable with liabilities arising following is a summary of the one or more additional Other Accounts out of any other business of the life application. The complete application is for which it will serve as depositor. insurance company. Any income, gains available for a fee from the SEC’s Public 5. FS Variable Separate Account is a or losses, realized or unrealized, from Reference Branch, 450 Fifth Street, NW., segregated asset account of FSLIC. FS assets allocated to the Account are, in Washington DC 20549–0102 (tel. (202) Variable Separate Account is registered accordance with the contract, credited 942–8090). with the Commission under the Act as to or charged against the Account, a unit investment trust. FS Variable without regard to other income, gains or Applicants’ Representations Separate Account will fund the variable losses of the life company. The same 1. On November 22, 2000, the benefits available under the AIG will be true for any Other Account. Commission issued the Existing Order SunAmerica contract. Units of interest 10. But for the depositor and issuing exempting certain transactions of AIG of Variable Account Nine under the AIG separate account, the Contracts to be Life, AIL, Variable Account, AIGESC SunAmerica Contracts will be registered issued by Additional Life Company (‘‘Original Applicants’’) and certain under the 1933 Act. FSLIC may issue Applicants are substantially similar in future accounts of AIG Life and AIL Future Contracts through FS Variable all material respects to the AIG Contract from the provisions of Section 2(a)(32), Separate Account. described in the Initial Application. 22(c) and 27(i)(2)(A) of the Act and Rule 6. VALIC is a stock life insurance Future Contracts will be substantially 22c–1 thereunder to the extent company originally organized as The similar in all material respects to the necessary to permit AIG Life and AIL to Variable Annuity Life Insurance contracts covered in the Existing Order. recapture under specified Company of America, located in 11. Additional Applicants will circumstances, certain credits Washington, DC, and reorganized under recapture Credits under the Contracts (‘‘Credits’’) applied to premium the laws of the state of Texas on August under the same circumstances covered payments made under a flexible 20, 1968. It is also an indirect, wholly by the Existing Order. The Existing deferred variable annuity contract that owned subsidiary of AIG. VALIC may Order grants exemptions from Sections AIG Life issues through the Variable establish one or more additional Other 2(a)(32), 22(c) and 27(i)(2)(A) of the Act Account (the ‘‘AIG Contract’’) as well as Accounts for which it will serve as and Rule 22c–1 thereunder to the extent other contracts that AIG Life or AIL may depositor. necessary to permit the recapture of issue in the future through their existing 7. VALIC Separate Account is a Credits in the following instances: or future separate accounts that are segregated asset account of VALIC. (i) When an owner exercises the substantially similar in all material VALIC Separate Account will fund the contract’s free look provision; respects to the AIG Contract described variable benefits available under the (ii) when a death benefit is payable in the application for the Existing Order VALIC contracts. Units of interest of within twenty-four months after receipt (‘‘Initial Application’’). VALIC Separate Account under the of a Credit; and 2. AIG SunAmerica was formerly VALIC contracts will be registered (iii) when a surrender is requested known as Anchor National Life under the 1933 Act. VALIC may issue within twenty-four months after receipt Insurance Company and is in the Future Contracts through VALIC of a Credit. If the surrender is a partial process of changing its name to AIG Separate Account. surrender during the twenty-four month SunAmerica Life Assurance Company. 8. That portion of the assets of period following receipt of a Credit, Like AIG Life and AIL, AIG SunAmerica Variable Account Nine, FS Variable except as part of the contract’s is an indirect, wholly owned subsidiary Separate Account and VALIC Separate systematic withdrawal program, of American International Group, Inc. Account (‘‘Additional Separate Account Additional Life Company Applicants (‘‘AIG’’), a Delaware corporation. AIG Applicants’’) that are equal to the will reduce the Credit in the same SunAmerica is the depositor for reserves and other contract liabilities proportion as the partial surrender bears Variable Account Nine, which was with respect to the respective separate to the value of the contract, less the established pursuant to Arizona law on accounts are not chargeable with Credit, and deduct it from the value of February 4, 2002. AIG SunAmerica may liabilities arising out of any other the contract. establish one or more additional Other business of the respective life insurance Regardless of whether or not the Accounts for which it will serve as company. Any income, gains or losses, Credit is vested, all gains or losses depositor. realized or unrealized, from assets attributable to such Credit are part of the 3. Variable Account Nine is a allocated to the respective separate owner’s contract value and are vested segregated asset account of AIG accounts are, in accordance with the immediately. Applicants represent that SunAmerica. Variable Account Nine is contract, credited to or charged against the Credit and the applicable provisions registered with the Commission under the separate account without regard to relating to the Credit are substantially the Act as a unit investment trust. other income, gains or losses of the life similar in all material respects as for Variable Account Nine will fund the insurance company. The same will be Original Applicants. variable benefits available under the true for any other Future Account of any AIG SunAmerica contracts. Units of Additional Life Company Applicant. Applicants’ Legal Analysis interest of Variable Account Nine under 9. Each of the Additional Separate 1. Section 6(c) of the Act authorizes the AIG SunAmerica Contracts will be Account Applicants and any Other the Commission to exempt any person, registered under the Securities Act of Accounts established by the Additional security or transaction, or any class or 1933 (‘‘1933 Act’’). AIG SunAmerica Life Company Applicants will be classes of persons, securities or may issue Future Contracts through registered with the Commission under transactions from the provision of the Variable Account Nine. the Act as a unit investment trust. Units Act and the rules promulgated 4. FSLIC is a stock life insurance of interest in the separate accounts they thereunder, if and to the extent that company organized under the laws of fund will be registered under the 1933 such exemption is necessary or the state of New York on December 5, Act. That portion of the assets of each appropriate in the public interest and 1928. FSLIC conducts a life insurance of the respective Accounts that is equal consistent with the protection of VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70985 investors and the purposes fairly The following item has been added to SECURITIES AND EXCHANGE intended by the policy and provisions of the closed meeting scheduled for COMMISSION the Act. Applicants request that the Monday, November 25, 2002, at 2:30 Commission, pursuant to Section 6(c) of p.m.: Formal order of investigation. [Release No. 34–46850; File No. SR–Amex– the Act, grant exemptions summarized Commissioner Campos, as duty 2002–90] above with respect to Additional officer, determined that Commission Applicants and any Other Accounts that business required the above change and Self-Regulatory Organizations; Notice the Additional Life Company of Filing and Immediate Effectiveness Applicants have established or may that no earlier notice thereof was possible. of Proposed Rule Change by the establish in the future, in connection American Stock Exchange LLC with the issuance of contracts that are At times, changes in Commission Relating to Member Transaction substantially similar in all material priorities require alterations in the Charges for Exchange-Traded Funds respects to the AIG Contract described scheduling of meeting items. For further in the Initial Application. Applicants information and to ascertain what, if November 19, 2002. believe that the requested exemptions any, matters have been added, deleted Pursuant to Section 19(b)(1) of the are appropriate in the public interest or postponed, please contact: The Office and consistent with the protection of Securities Exchange Act of 1934 of the Secretary at (202) 942–7070. 1 2 investors and the purposes fairly (‘‘Act’’), and Rule 19b–4 thereunder, intended by the policy and provisions of Dated: November 22, 2002. notice is hereby given that on November the Act. Margaret H. McFarland, 4, 2002, the American Stock Exchange 2. Applicants submit that the Deputy Secretary. LLC (‘‘Exchange’’ or ‘‘Amex’’) filed with recapture of the Credits by Additional [FR Doc. 02–30250 Filed 11–25–02; 11:53 the Securities and Exchange Applicants will not raise concerns am] Commission (‘‘SEC’’ or ‘‘Commission’’) under Section 2(a)(32), 22(c) and BILLING CODE 8010–01–P the proposed rule change as described 27(i)(2)(A) of the Act and Rule 22c–1 in Items I, II, and III below, which Items thereunder for the same reasons given in have been prepared by Amex. The support of the Existing Order. The SECURITIES AND EXCHANGE Commission is publishing this notice to Credits will be recapturable under the COMMISSION solicit comments on the proposed rule same circumstances and on the same change from interested persons. basis as described in the Initial [File No. 500–1] Application. I. Self-Regulatory Organization’s Statement of the Terms of Substance of Based on the grounds summarized Global Vision Holdings, Inc.; Order of above, Applicants submit that their Suspension of Trading the Proposed Rule Change exemptive request meets the standards Amex proposes to add Treasury 10 November 25, 2002. set out in Section 6(c) of the Act, FITR ETF, Treasury 5 FITR ETF, namely, that the exemptions requested It appears to the Securities and Treasury 2 FITR ETF, and Treasury 1 are necessary or appropriate in the Exchange Commission that there is a FITR ETF to the list of Exchange-Traded public interest and consistent with the lack of current and accurate information Funds (‘‘ETFs’’) for which the Exchange protection of investors and the purposes concerning the securities of Global pays non-reimbursed fees to third fairly intended by the policy and Vision Holdings, Inc. (‘‘GVHI’’) because parties (included in Note 4 to the Amex provisions of the Act, and that, of questions regarding the accuracy and Equity Fee Schedule). The Exchange is therefore, the Commission should grant adequacy of information concerning the the requested order. also amending Item 9 and Note 4 to the business background of an officer of Equity Fee Schedule to add reference to For the Commission, by the Division of GVHI, the business prospects of GVHI, Portfolio Depositary Receipts. Investment Management, pursuant to and the market for the securities of The text of the proposed rule change delegated authority. GVHI. Margaret H. McFarland, is available at Amex and at the The Commission is of the opinion that Deputy Secretary. Commission. the public interest and the protection of [FR Doc. 02–30037 Filed 11–26–02; 8:45 am] investors require a suspension of trading II. Self-Regulatory Organization’s BILLING CODE 8010–01–P in the securities of the above-listed Statement of the Purpose of, and company. Statutory Basis for, the Proposed Rule Change SECURITIES AND EXCHANGE Therefore, it is ordered, pursuant to COMMISSION Section 12(k) of the Securities Exchange In its filing with the Commission, Act of 1934, that trading in the above- Amex included statements concerning Sunshine Act Meeting listed company is suspended for the the purpose of and basis for the period from 9:30 a.m. EST, on Monday, FEDERAL REGISTER CITATION OF PREVIOUS proposed rule change and discussed any November 25, 2002 through 11:59 p.m. ANNOUNCEMENT: (67 FR 70470, comments it received on the proposed November 22, 2002). EST, on Monday, December 9, 2002. rule change. The text of these statements may be examined at the places specified STATUS: Closed meeting. By the Commission. Margaret H. McFarland, in Item IV below. Amex has prepared PLACE: 450 Fifth Street, NW., summaries, set forth in Sections A, B, Deputy Secretary. Washington, DC. and C below, of the most significant DATE AND TIME OF PREVIOUSLY ANNOUNCED [FR Doc. 02–30251 Filed 11–25–02; 12:57 pm] aspects of such statements. MEETING: Monday, November 25, 2002, BILLING CODE 8010–01–P at 2:30 p.m. 1 15 U.S.C. 78s(b)(1). CHANGE IN THE MEETING: Additional item. 2 17 CFR 240.19b–4. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70986 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices A. Self-Regulatory Organization’s any time within 60 days of November 4, (‘‘Act’’),1 and rule 19b–4 thereunder,2 Statement of the Purpose of, and 2002, the Commission may summarily notice is hereby given that on October Statutory Basis for, the Proposed Rule abrogate such rule change if it appears 28, 2002, the Chicago Stock Exchange, Change to the Commission that such action is Incorporated (‘‘CHX’’ or ‘‘Exchange’’) necessary or appropriate in the public filed with the Securities and Exchange 1. Purpose interest, for the protection of investors, Commission (‘‘Commission’’) the The Exchange has included in Note 4 or otherwise in furtherance of the proposed rule change as described in to the Amex Equity Fee Schedule a list purposes of the Act.8 items I, II, and III below, which items of ETFs that are subject to transaction have been prepared by the Exchange. IV. Solicitation of Comments charges set forth in Item 9 to the Equity The Exchange has designated this Fee Schedule relating to ETFs for which Interested persons are invited to proposal as one establishing or changing the Exchange pays unreimbursed fees to submit written data, views, and a due, fee, or other charge imposed by a third party.3 The Exchange is adding arguments concerning the foregoing, the CHX under section 19(b)(3)(A)(ii) of to this list Treasury 10 FITR ETF, including whether the proposed rule the Act,3 which renders the proposal Treasury 5 FITR ETF, Treasury 2 FITR change is consistent with the Act. effective upon filing with the ETF, and Treasury 1 FITR ETF. Persons making written submissions Commission. The Commission is The Exchange is also amending Item should file six copies thereof with the publishing this notice to solicit 9 and Note 4 to the Equity Fee Secretary, Securities and Exchange comments on the proposed rule change Schedule, as filed in SR–Amex–2002– Commission, 450 Fifth Street, NW., from interested persons. 81, to add reference to Portfolio Washington, DC 20549–0609. Copies of I. Self-Regulatory Organization’s Depositary Receipts, which was the submission, all subsequent inadvertently omitted from Item 9 and Statement of the Terms of Substance of amendments, all written statements the Proposed Rule Change Note 4. As noted in SR–Amex–2002–81, with respect to the proposed rule the fees that are the subject of that filing change, as amended, that are filed with The Exchange proposes to amend its include ETFs, Portfolio Depositary the Commission, and all written membership dues and fees schedule Receipts and Index Fund Shares, for communications relating to the (‘‘Schedule’’) to incorporate an ‘‘OTC which Amex pays a non-reimbursed fee. proposed rule change between the Access and Connection Charge’’ that 2. Basis Commission and any person, other than will apportion among CHX over-the- those that may be withheld from the counter (‘‘OTC’’) specialist firms the The Exchange believes the proposed public in accordance with the incremental technology costs associated rule change is consistent with Section 6 provisions of 5 U.S.C. 552, will be with accessing OTC market participants. of the Act,4 in general, and with Section available for inspection and copying in The text of the proposed rule change is 6(b)(4) of the Act,5 in particular, in that the Commission’s Public Reference below. Proposed new language is in it is designed to provide for the Room. Copies of such filing will also be italics. equitable allocation of reasonable dues, available for inspection and copying at fees, and other charges among its Membership Dues and Fees the principal office of Amex. All members and issuers and other persons submissions should refer to File No. * * * * * using its facilities. SR–Amex–2002–90 and should be H. Equipment, Information Services B. Self-Regulatory Organization’s submitted by December 18, 2002. and Technology Charges Statement on Burden on Competition For the Commission, by the Division of * * * * * Amex does not believe that the Market Regulation, pursuant to delegated proposed rule change will impose any authority.9 OTC Access and Connection Charges burden on competition. Margaret H. McFarland, Each specialist firm shall be billed, on Deputy Secretary. C. Self-Regulatory Organization’s a monthly basis, for actual access Statement on Comments on the [FR Doc. 02–30039 Filed 11–26–02; 8:45 am] charges and other amounts that become Proposed Rule Change Received From BILLING CODE 8010–01–P due in accordance with the Exchange’s Members, Participants, or Others contractual arrangements to access OTC market participants. No comments were solicited nor SECURITIES AND EXCHANGE Amounts billed to the specialist firm received with respect to the proposed COMMISSION will be based on the number of OTC/ rule change. UTP co-specialists at each firm using III. Date of Effectiveness of the [Release No. 34–46861; File No. SR–CHX– products licensed or otherwise procured Proposed Rule Change and Timing for 2002–35] by the Exchange, adjusted on a monthly Commission Action basis to reflect changes in the firm’s Self-Regulatory Organizations; Notice number of OTC/UTP co-specialists; The foregoing proposed rule change of Filing and Immediate Effectiveness provided, however, that (i) the minimum has become effective pursuant to of Proposed Rule Change by the monthly amount that will be billed to a Section 19(b)(3)(A)(ii) of the Act 6 and Chicago Stock Exchange, Incorporated 7 specialist firm will be based on the subparagraph (f)(2) of Rule 19b–4 to Establish an OTC Access and firm’s number of OTC/UTP co- thereunder, because it establishes or Connection Charge for CHX OTC specialists as of the date an agreement changes a due, fee, or other charge. At Specialist Firms is executed; and (ii) if the firm elects to deregister from all OTC/UTP issues, the 3 See Exchange Act Release No. 46764 (November November 20, 2002. 1, 2002), 67 FR 68704 (November 12, 2002) (SR– firm must continue to pay the minimum Amex–2002–81). Pursuant to section 19(b)(1) of the monthly amount referenced above, for 4 15 U.S.C. 78f. Securities Exchange Act of 1934 5 15 U.S.C. 78f(b)(4). 1 15 U.S.C. 78s(b)(1). 6 15 U.S.C. 78s(b)(3)(A)(ii). 8 See 15 U.S.C. 78s(b)(3)(C). 2 17 CFR 240.19b–4. 7 17 CFR 240.19b–4(f)(2). 9 17 CFR 200.30–3(a)(12). 3 15 U.S.C. 78s(b)(3)(A)(ii). VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70987 the remaining initial term of the 2. Statutory Basis the principal office of the Exchange. All Exchange’s contractual commitment. The Exchange believes the proposed submissions should refer to file number * * * * * rule change is consistent with section SR–CHX–2002–35, and should be 4 submitted by December 18, 2002. II. Self-Regulatory Organization’s 6(b)(4) of the Act in that it provides for Statement of the Purpose of, and the equitable allocation of reasonable For the Commission, by the Division of Market Regulation, pursuant to delegated Statutory Basis for, the Proposed Rule dues, fees and other charges among its members. authority.7 Change Margaret H. McFarland, In its filing with the Commission, the B. Self-Regulatory Organization’s Deputy Secretary. Statement on Burden on Competition Exchange included statements [FR Doc. 02–30044 Filed 11–26–02; 8:45 am] concerning the purpose of and basis for The Exchange does not believe that BILLING CODE 8010–01–P the proposed rule change and discussed the proposed rule change will impose any comments it received on the any inappropriate burden on proposed rule change. The text of these competition. SECURITIES AND EXCHANGE statements may be examined at the C. Self-Regulatory Organization’s COMMISSION places specified in item IV below. The Statement on Comments on the [Release No. 34–46855; File No. SR–GSCC– Exchange has prepared summaries, set Proposed Rule Change Received from 2002–12] forth in sections A, B, and C below, of Members, Participants, or Others the most significant aspects of such Self-Regulatory Organizations; Notice statements. No written comments were solicited of Filing and Order Granting or received. A. Self-Regulatory Organization’s Accelerated Approval of Proposed Statement of the Purpose of, and III. Date of Effectiveness of the Rule Change by the Government Statutory Basis for, the Proposed Rule Proposed Rule Change and Timing for Securities Clearing Corporation Change Commission Action Relating to the Schedule of Timeframes for Submitting Repo The proposed rule change has become 1. Purpose Collateral Substitution Notifications effective pursuant to section The CHX proposes to amend the 19(b)(3)(A)(ii) of the Act 5 and November 20, 2002. Schedule by incorporating an OTC subparagraph (f)(2) of rule 19b–4 Pursuant to Section 19(b)(1) of the Access and Connection Charge that will thereunder,6 because it involves a due, Securities Exchange Act of 1934 apportion among CHX OTC specialist fee, or other charge. At any time within (‘‘Act’’)1, notice is hereby given that on firms the incremental technology costs 60 days of the filing of the proposed rule October 22, 2002, the Government associated with accessing OTC market change, the Commission may summarily Securities Clearing Corporation participants. abrogate such rule change if it appears (‘‘GSCC’’) filed with the Securities and As the OTC market prepares for full to the Commission that such action is Exchange Commission (‘‘Commission’’) implementation of Nasdaq’s necessary or appropriate in the public the proposed rule change as described SuperMontage system and the NASD’s interest, for the protection of investors, in Items I and II below, which items Alternative Display Facility (which will or otherwise in furtherance of the have been prepared primarily by GSCC. not be accessible by CHX specialists), purposes of the Act. The Commission is publishing this many CHX OTC specialists consider it notice and order to solicit comments on imperative that the CHX enter into IV. Solicitation of Comments the proposed rule change from access arrangements with various OTC Interested persons are invited to interested parties and to grant market participants and procure certain submit written data, views, and accelerated approval of the proposed proprietary technological enhancements arguments concerning the foregoing, rule change. that will permit CHX OTC specialists to including whether the proposal is obtain ready access to various pools of consistent with the Act. Persons making I. Self-Regulatory Organization’s liquidity in the OTC market. Given the written submissions should file six Statement of the Terms of Substance of substantial technology costs that the copies thereof with the Secretary, the Proposed Rule Change CHX has incurred and continues to Securities and Exchange Commission, The proposed rule change would incur relating to the transitions in the 450 Fifth Street, NW., Washington, DC allow GSCC to amend its schedule of OTC market, including development 20549–0609. Copies of the submission, timeframes to extend its repo collateral costs associated with the independent all subsequent amendments, all written substitution deadline by one hour on securities information processor that statements with respect to the proposed days that GSCC determines to be high will be operational next year, the CHX rule change that are filed with the volume days. believes it is appropriate for CHX OTC Commission, and all written specialists to bear a proportionate share communications relating to the II. Self-Regulatory Organization’s of the technology costs associated with proposed rule change between the Statement of the Purpose of, and accessing the OTC market. Commission and any person, other than Statutory Basis for, the Proposed Rule Accordingly, the CHX Finance those that may be withheld from the Change Committee and Board of Governors public in accordance with the In its filing with the Commission, approved institution of the proposed provisions of 5 U.S.C. 552, will be GSCC included statements concerning OTC Access and Connection Charge, as available for inspection and copying in the purpose of and basis for the what the CHX believes is a reasonable the Commission’s Public Reference proposed rule change and discussed any means of allocating such technology Room. Copies of such filing will also be comments it received on the proposed costs among the CHX OTC specialist available for inspection and copying at rule change. The text of these statements firms that benefit from such CHX may be examined at the places specified expenditures. The Exchange believes 4 15 U.S.C. 78f(b)(4). that its OTC specialist firms are in 5 15 U.S.C. 78s(b)(3)(A)(ii). 7 17 CFR 200.30–3(a)(12). agreement with this proposal. 6 17 CFR 240.19b–4(f)(2). 1 15 U.S.C. 78s(b)(1). VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70988 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices in Item IV below. GSCC has prepared guidelines, it will be GSCC that IV. Solicitation of Comments summaries, set forth in sections (A), (B), determines when a trading day is a high Interested persons are invited to and (C) below, of the most significant volume day. submit written data, views, and aspects of these statements. The Schedule currently permits GSCC arguments concerning the foregoing, (A) Self-Regulatory Organization’s to extend its repo collateral substitution including whether the proposed rule Statement of the Purpose of, and deadlines only after the BMA has change is consistent with the Act. Statutory Basis for, the Proposed Rule designated a high volume day. The Persons making written submissions Change proposed rule change would permit should file six copies thereof with the GSCC to determine when a trading day GSCC’s Schedule of Timeframes Secretary, Securities and Exchange is a high volume day and therefore to (‘‘Schedule’’) contains two deadlines Commission, 450 Fifth Street, NW., institute a same-day extension of its that are applicable to requests for repo Washington, DC 20549–0609. Copies of deadlines without having the BMA collateral substitutions: (i) A deadline of the submission, all subsequent designation. noon (12:00 p.m.) after which a member amendments, all written statements that initiated the substitution will be The proposed rule change is with respect to the proposed rule subject to a late fee of five hundred consistent with the requirements of change that are filed with the dollars ($500.00) per substitution Section 17A of the Act and the rules and Commission, and all written imposed and (ii) an absolute deadline of regulations thereunder because it will communications relating to the 12:30 p.m. after which GSCC will reject provide members with additional time proposed rule change between the the substitution request.2 The Schedule to submit their repo collateral Commission and any person, other than provides that GSCC may extend these notification requests on days that those that may be withheld from the deadlines by one hour on days that The develop into high volume days. public in accordance with the Bond Market Association (‘‘BMA’’) provisions of 5 U.S.C. 552, will be (B) Self-Regulatory Organization’s available for inspection and copying in announces in advance will be ‘‘high Statement on Burden on Competition volume days.’’3 the Commission’s Public Reference Given the unpredictable occurrence of GSCC does not believe that the Room, 450 Fifth Street, NW., days on which a large number of proposed rule change will have any Washington, DC 20549. Copies of such collateral substitution requests occur, impact or impose any burden on filing also will be available for the BMA recently supplemented its competition. inspection and copying at the principal guidelines to provide a process for the office of GSCC. All submissions should same-day designation of high volume (C) Self-Regulatory Organization’s refer to File No. SR–GSCC–2002–12 and days and extension of repo collateral Statement on Comments on the should be submitted by December 18, substitution deadlines.4 Specifically, the Proposed Rule Change Received From 2002. BMA has recommended that prior to Members, Participants or Others It is therefore ordered, pursuant to 6 10:05 a.m. on each day on which the Written comments relating to the Section 19(b)(2) of the Act, that the markets are open for trading, GSCC’s proposed rule change have not yet been proposed rule change is hereby inter-dealer broker netting members solicited or received. GSCC will notify approved on an accelerated basis. should notify GSCC of the number of the Commission of any written For the Commission by the Division of collateral substitution requests they comment received by GSCC. Market Regulation, pursuant to delegated have received for that trading day. If the authority.7 number of such collateral substitution III. Date of Effectiveness of Proposed Margaret H. McFarland, requests exceeds 150 in the aggregate, Rule Change and Timing for Deputy Secretary. GSCC will extend its repo collateral Commission Action [FR Doc. 02–30038 Filed 11–26–02; 8:45 am] substitution deadlines by one hour and will notify the BMA which will issue a The Commission finds that the BILLING CODE 8010–01–P notice to market participants.5 In effect, proposal, which allows GSCC to react in under the new trading practice a timely manner to volume increases by extending submission deadlines for repo SECURITIES AND EXCHANGE COMMISSION 2 All times in GSCC’s rules are New York time. collateral substitution requests by GSCC GSCC’s repo substitution notification deadlines members, is consistent with Section [Release No. 34–46860; File No. SR–ISE– were based upon guidelines issued by The Bond 17A(b)(3)(F) because it should help 2001–15] Market Association (‘‘BMA’’) that provide that on perfect the mechanism of a national each business day market participants should notify their inter-dealer broker of any collateral system for the prompt and accurate Self-Regulatory Organizations; Notice substitutions by 9:55 a.m. and should provide such clearance and settlement of securities of Filing of Proposed Rule Change by brokers with the description of the substituted transactions. Allowing GSCC to the International Securities Exchange collateral by 11:00 a.m. GSCC provides members LLC, Relating to a Pilot Program for with an additional hour in which to send the designate high volume days request to GSCC. independently of the BMA will enable Quotation Spreads 3 Pursuant to BMA’s trading practices guidelines, GSCC to better serve its members November 20, 2002. high volume days are the first and last business day because GSCC will be able to respond in of each calendar quarter on which markets are open Pursuant to section 19(b)(1) of the for trading and such other days as the BMA may real-time to market conditions affecting its clearance and settlement of repos. Securities Exchange Act of 1934 announce no later than 24 hours prior to the (‘‘Act’’),1 and rule 19b–4 thereunder,2 occurrence of such day. The Commission finds good cause for 4 The BMA issued this supplement on an interim notice is hereby given that on May 25, basis pending the approval of this rule change. approving the proposed rule change 2001, the International Securities 5 GSCC, the BMA, and industry representatives prior to the thirtieth day after the date Exchange LLC (‘‘ISE’’ or ‘‘Exchange’’) have established 150 as the number of requests that of publication of notice of the filing will trigger GSCC’s determination that a trading day because approval prior to the thirtieth 6 is a high volume day. This will be incorporated into 15 U.S.C. 78s(b)(2). day of publication will give GSCC the 7 the BMA’s trading practice guidelines. Should this 17 CFR 200.30–3(a)(12). change, GSCC will file a proposed rule change ability to immediately handle any high 1 15 U.S.C. 78s(b)(1). under Section 19(b)(3)(A) with the Commission. volume day that might occur. 2 17 CFR 240.19b–4. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70989 filed with the Securities and Exchange spread requirements may not be on competition that is not necessary or Commission (‘‘Commission’’ or ‘‘SEC’’) necessary to ensure tight and appropriate in furtherance of the the proposed rule change as described competitive quotations on the ISE. purposes of the Act. in items I, II, and III below, which items In this regard, the ISE states that its have been prepared by the ISE. The market structure creates strong C. Self-Regulatory Organization’s Commission is publishing this notice to incentives for competing market makers Statement on Comments on the solicit comments on the proposed rule and other market participants to Proposed Rule Change Received From change from interested persons. disseminate competitive prices. In the Members, Participants, or Others ISE’s trading system, each market maker I. Self-Regulatory Organization’s quotes independently and customers The ISE has not solicited, and does Statement of the Terms of Substance of and professional traders can enter limit not intend to solicit, comments on the the Proposed Rule Change orders on the ISE’s book. The ISE proposed rule change. The ISE has not The ISE proposes to amend automatically collects this trading received any unsolicited written Supplementary Material .01 to ISE Rule interest, calculates an ISE best bid and comments from members or other 803, ‘‘Obligations of Market Makers,’’ to offer (‘‘BBO’’), and disseminates the interested parties. establish a six-month pilot program in BBO to the investing public. III. Date of Effectiveness of the which the allowable quotation spread Furthermore, the ISE allocates trading for options on up to 50 underlying interest based upon the price and size Proposed Rule Change and Timing for securities will be $5, regardless of the of trading interest. Under the ISE’s Commission Action price of the bid. trading algorithm, the ISE allocates Within 35 days of the date of The text of the proposed rule change volume to trading interest at the best publication of this notice in the Federal is available at the ISE and at the price. The larger the size of a person’s Register or within such longer period (i) Commission. quote or order at the best price, the more trading interest that person receives. as the Commission may designate up to II. Self-Regulatory Organization’s 90 days of such date if it finds such Statement of the Purpose of, and The ISE believes that this provides strong incentives for market makers and longer period to be appropriate and Statutory Basis for, the Proposed Rule publishes its reasons for so finding or Change other market participants to enter quotes and orders that improve the price and (ii) as to which the Exchange consents, In its filing with the Commission, the depth of the market. The ISE believes the Commission will: ISE included statements concerning the that in this model, market forces (A) By order approve such proposed purpose of, and basis for, the proposed provide sufficient discipline to maintain rule change, or rule change, and discussed any narrow and competitive quotation comments it received on the proposed spreads. (B) Institute proceedings to determine rule change. The text of these statements Accordingly, the ISE proposes to whether the proposed rule change may be examined at the places specified expand the allowable spread in a pilot should be disapproved. in item IV below. The ISE has prepared group of up to 50 options (up to five per IV. Solicitation of Comments summaries, set forth in sections A, B, each of the ISE’s ten groups of options) and C below, of the most significant to $5.3 The ISE states that it will Interested persons are invited to aspects of such statements. monitor the quotation quality of the submit written data, views, and A. Self-Regulatory Organization’s selected options for a six-month pilot arguments concerning the foregoing, Statement of the Purpose of, and period and, based on the results, including whether the proposed rule Statutory Basis for, the Proposed Rule recommend either relaxing the spread change is consistent with the Act. Change requirements for all options, ending the Persons making written submissions pilot, or adjusting the spread should file six copies thereof with the (1) Purpose requirements. Secretary, Securities and Exchange The purpose of the proposed rule (2) Basis Commission, 450 Fifth Street, NW., change is to establish a six-month pilot Washington, DC 20549–0609. program to substantially relax the The ISE believes that the proposed quotation spread requirements on the rule change is consistent with the Copies of the submission, all 4 ISE in options on up to 50 underlying requirement under section 6(b)(5) of subsequent amendments, all written securities. Currently, the ISE’s rules the Act that an exchange have rules that statements with respect to the proposed contain maximum quotation spread are designed to prevent fraudulent and rule change that are filed with the requirements that vary from $.25 to $1, manipulative acts and practices, to Commission, and all written depending on the price of the option. promote just and equitable principles of communications relating to the Each ISE market maker independently is trade, to remove impediments to and proposed rule change between the perfect the mechanism for a free and subject to these requirements. Commission and any person, other than open market and a national market According to the ISE, although the those that may be withheld from the primary purpose of the spread system, and, in general, to protect investors and the public interest. public in accordance with the requirements is to help to maintain provisions of 5 U.S.C. 552, will be narrow spreads, the spread B. Self-Regulatory Organization’s available for inspection and copying in requirements also result in individual Statement on Burden on Competition the Commission’s Public Reference market makers sometimes quoting at Room. Copies of such filing will also be prices that they believe are The ISE believes that the proposed available for inspection and copying at unnecessarily narrow, potentially rule change does not impose any burden exposing them to greater risk if markets the principal office of the ISE. All 3 At this point, the ISE does not propose to move quickly. The ISE believes that, submissions should refer to file number eliminate the spread requirements entirely to avoid SR–ISE–2001–15 and should be due to its unique electronic competitive perception issues about extremely wide spreads. market making system, the quotation 4 15 U.S.C. 78f(b)(5). submitted by December 18, 2002. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70990 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices For the Commission, by the Division of who will be absent for a period of time; (2) Office inspections by members Market Regulation, pursuant to delegated (4) NASD Rule 2510(d) would clarify pursuant to paragraph (c)(1) must be authority.5 the time limit on time-and-price conducted by a person who is Margaret H. McFarland, discretionary authority; and (5) NASD independent from the activities being Deputy Secretary. Rule 9610 would incorporate into NASD performed at the office and those [FR Doc. 02–30042 Filed 11–26–02; 8:45 am] Procedural Rules the ability of members persons providing supervision to that BILLING CODE 8010–01–P to request an exemption from amended office. The independence requirements NASD Rule 3010(c). Below is the text of in connection with office inspections the proposed rule change. Proposed new may be satisfied by reasonable means SECURITIES AND EXCHANGE language is in italics; proposed based on the size and resources of the COMMISSION deletions are in brackets. firm and the scope and nature of its [Release No. 34–46859; File No. SR–NASD– * * * * * activities. Written reports of these 2002–162] inspections are to be kept on file by the 2510. Discretionary Accounts member for a minimum of three years. Self-Regulatory Organizations; (a) through (c) No Change. An office inspection and review must National Association of Securities (d) Exceptions include, but is not limited to, testing Dealers, Inc.; Notice of Filing of This Rule shall not apply to: and verification of the member’s Proposed Rule Change Relating to (1) discretion as to the price at which policies and procedures, including Supervisory Control Amendments or the time when an order given by a supervisory policies and procedures in customer for the purchase or sale of a the following areas: November 20, 2002. definite amount of a specified shall be (A) Safeguarding of customer funds Pursuant to section 19(b)(1) of the executed, except that the authority to and securities; Securities Exchange Act of 1934 exercise time and price discretion will (B) Maintaining books and records; (‘‘Act’’) 1 and Rule 19b-4 thereunder,2 be considered to be in effect only until (C) Supervision of customer accounts notice is hereby given that on November the end of the business day on which serviced by branch office managers; 4, 2002, the National Association of the customer granted such discretion, (D) Transmittal of funds between Securities Dealers, Inc. (‘‘NASD’’) filed absent a specific, written, contrary customers and registered with the Securities and Exchange indication signed and dated by the representatives and between customers Commission (‘‘SEC’’ or ‘‘Commission’’) customer; and third parties; a proposed rule change. The proposed (2) No Change. (E) Validation of customer address rule change is described in Items I, II, Any exercise of time and price changes; and and III below, which Items have been discretion must be reflected on the (F) Validation of changes in customer prepared by the NASD. The customer order ticket. account information. Commission is publishing this notice to (3) Pursuant to the Rule 9600 Series, solicit comments on the proposed rule * * * * * NASD may exempt any member change from interested persons. 3010. Supervision unconditionally or on specified terms and conditions from the independence I. Self-Regulatory Organization’s (a) through (b) No Change. requirement in the inspection of a Statement of the Terms of Substance of (c) Internal Inspections member’s offices as set forth in the Proposed Rule Change (1) Each member shall conduct a paragraph (c)(2) upon a satisfactory The NASD is proposing to adopt new review, at least annually, of the showing that complying with the NASD Rule 3012 and amend other rules businesses in which it engages, which requirements would be unduly regarding the supervisory and review shall be reasonably designed to burdensome on the member and that supervisory control procedures of assist in detecting and preventing the member’s internal inspection member firms. Specifically, new NASD violations of, and achieving compliance procedures are reasonably designed to Rule 3012 would require members to with, applicable securities laws and achieve compliance with applicable develop general and specific regulations, and with applicable NASD securities laws and regulations and supervisory control procedures that rules [the Rules of this Association]. applicable NASD rules. Each member shall review the activities independently test and verify and * * * * * modify, where necessary, the members’ of each office, which shall include the supervisory procedures. In addition, periodic examination of customer 3012. Supervisory Controls accounts to detect and prevent proposed amendments to (1) NASD Rule (a) General Requirements 3010(c) would require that office irregularities or abuses and at least an inspections be conducted by annual inspection of each office of (1) Each member shall establish and independent persons and include, at a supervisory jurisdiction. Each branch maintain a system of supervisory minimum, the testing and verification of office of the member shall be inspected control policies and procedures that (A) certain supervisory procedures; (2) according to a cycle which shall be set test and verify that the member’s NASD Rule 3110 would expand upon a forth in the firm’s written supervisory supervisory procedures are reasonably member’s supervisory and and inspection procedures. In designed with respect to the activities of recordkeeping requirements with establishing such cycle, the firm shall the member and its registered respect to changes in customer account give consideration to the nature and representatives and associated persons, name or designation in connection with complexity of the securities activities to achieve compliance with applicable order executions; (3) NASD IM–3110 for which the location is responsible, securities laws and regulations, and would provide guidance as to when a the volume of business done, and the with applicable NASD rules and (B) member may hold mail for a customer number of associated persons assigned create additional or amend supervisory to the location. Each member shall procedures where the need is identified 5 17 CFR 200.30–3(a)(12). retain a written record of the dates upon by such testing and verification. The 1 15 U.S.C. 78s(b)(1). which each review and inspection is member’s supervisory controls must be 2 17 CFR 240.19b–4. conducted. performed by persons who are VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70991 independent from those activities being customer confirmation, notification, or 3350, 8211, 8212, 8213, 11870, or tested and verified and the persons who follow-up that can be documented. 11900, Interpretive Material 2110–1, or directly supervise those activities. The Municipal Securities Rulemaking Board (d) Dual Member independence requirements in Rule G–37 shall file a written connection with testing and verification Any member in compliance with application with the appropriate may be satisfied by reasonable means substantially similar requirements of the department or staff of NASD [the based on the size and resources of the New York Stock Exchange, Inc. shall be Association] and provide a copy of the firm and the scope and nature of its deemed to be in compliance with the application to the Office of General activities. A report detailing each provisions of this Rule. Counsel of NASD [Regulation], member’s systems of supervisory * * * * * Regulatory Policy and Oversight. controls, including a summary of the 3110. Books and Records (b) through (c) No Change. test results and significant identified * * * * * exceptions, must be submitted no less (a) through (c) No change. than annually to the member’s senior (d) Changes in Account Name or II. Self-Regulatory Organization’s management. Designation. Statement of the Purpose of, and (2) The independence requirement in Before any customer order is Statutory Basis for, the Proposed Rule the verification and testing of the executed, there must be placed upon the Change memorandum for each transaction, the member’s supervisory procedures shall In its filing with the Commission, the name or designation of the account (or not apply to members that do not NASD included statements concerning accounts) for which such order is to be conduct a public business, or that have the purpose of and basis for the executed. No change in such account a capital requirement of $5,000 or less, proposed rule change and discussed any name(s) (including related accounts) or or that employ 10 or fewer registered comments it received on the proposed designation(s) (including error accounts) representatives. rule change. The text of these statements shall be made unless the change has (b) Managers’ Activities may be examined at the places specified been authorized by a member or a in Item IV below. The NASD has Each member shall establish, person(s) designated under the prepared summaries, set forth in maintain, and enforce written policies provisions of NASD rules. Such person Sections A, B, and C below, of the most and procedures to administer the must, prior to giving his or her approval significant aspects of such statements. supervisory controls established of the account designation change, be pursuant to paragraph (a) reasonably personally informed of the essential A. Self-Regulatory Organization’s designed to independently review and facts relative thereto and indicate his or Statement of the Purpose of, and monitor the servicing of customer her approval of such change in writing Statutory Basis for, the Proposed Rule accounts by the member’s branch office on the order or other similar record of Change managers, sales managers, regional or the member. The essential facts relied 1. Purpose district sales managers, or any person upon by the person approving the performing a similar supervisory change must be documented in writing Adequate supervisory systems play an function. and maintained in a central location. important role in assuring investor For purposes of this paragraph (d), a protection and the integrity of the (c) Customers’ Activities person(s) designated under the markets. Operational and sales practice Each member shall establish, provisions of NASD rules to approve abuses can stem from ineffective maintain, and enforce written policies account name or designation changes supervisory and supervisory control and procedures to administer the must pass a qualifying principal procedures. The recent Gruttadauria supervisory controls established examination appropriate to the business case, which involved the pursuant to paragraph (a), specifically of the firm. misappropriation of customer funds, has with respect to the following activities: * * * * * brought tremendous attention to the (1) Transmittals of funds (e.g., wires ongoing problem of operational and or checks, etc.) or securities: IM–3110. Customer Account sales practice abuses at firms and the (A) from customer accounts to third Information importance of ensuring that firms party accounts (i.e., a transmittal that (a) through (h) No Change. effectively monitor the activities of their would result in a change of beneficial (i) Holding of Customer Mail employees. ownership); Upon the written instructions of a NASD rules contain extensive (B) from customer accounts to outside customer, a member may hold mail for supervisory requirements. NASD Rule entities (e.g., banks, investment a customer who will not be at his or her 3010 generally requires each member to companies, etc.); usual address for the period of his or establish and maintain a supervisory (C) from customer accounts to her absence, but (A) not to exceed two system, including the development of locations other than a customer’s months if the member is advised that written procedures. Beyond this broad primary residence (e.g., post office, ‘‘in such customer will be on vacation or general requirement, NASD Rule 2110 care of’’ accounts, alternate address, traveling or (B) not to exceed three requires members to observe high etc.); and months if the customer is going abroad. standards of commercial honor and just (D) between customers and registered * * * * * and equitable principles of trade, and representatives, including the hand- NASD Rule 3110 sets forth extensive delivery of checks. 9610. Application books and records obligations. In (2) Customer changes of address. (a) Where to File addition, the NASD recently established (3) Customer changes of investment A member seeking an exemption from comprehensive examination procedures objectives. Rule 1021, 1022, 1070, 2210, 2320, for supervisory controls. The The policies and procedures 2340, 2520, 2710, 2720, 2810, 2850, examination procedures focus on established pursuant to paragraph (c) 2851, 2860, Interpretive Material 2860– supervisory controls as they relate to must include a means or method of 1, 3010(b)(2), 3010(c), 3020, 3210, 3230, several areas of a firm, including senior VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00076 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70992 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices management, internal audit and trading applicable securities laws and the improper delivery of customer- risk controls. regulations, and with the applicable related documentation. As such, the In light of the concerns raised by the NASD rules and (2) create additional or proposed rule change would require Guttadauria case with respect to amend supervisory procedures where firms to establish written supervisory inadequate supervisory systems, the the need is identified by such testing control procedures specifically with NASD is proposing a new rule and and verification. respect to the transmittal of customer amendments to existing rules to The proposed rule change would funds and changes in customer address enhance the NASD’s current rules and require that a member’s control and investment objectives. Members examination efforts by specifically procedures be performed by persons would be required to follow-up with requiring members to establish adequate who are independent of the activities customers after the occurrence of any of supervisory control systems. In general, being tested and verified and the these activities and to document the proposed new NASD Rule 3012 sets persons who directly supervise those method of follow-up. forth general and specific supervisory activities. The independence control requirements while amendments requirement may be achieved by Supervisory Controls—Sales Managers’ to certain other rules complement reasonable means in light of the member Activities NASD’s efforts with new NASD Rule firm’s size and resources and nature and The proposed amendments would 3012. The New York Stock Exchange, scope of its activities. In practice, the require firms to develop and implement Inc. (‘‘NYSE’’) also recently filed with NASD would expect that, unless a written policies to independently the SEC a series of amendments aimed member could establish it was review and monitor the servicing of at improving a firm’s supervisory and impractical, the system of supervisory customer accounts by branch office internal (or supervisory) control controls will be deployed by persons managers, sales managers, regional/ systems.3 The NASD states that its who (1) are not connected in function district sales managers, and other proposed rule change is substantially to, or receive direct remuneration from, supervisory personnel. The NASD similar to the NYSE’s proposed the activities which are the subject of expects that all sales-related activities amendments. the supervisory control procedures and will be reviewed. The NASD believes The obligation to establish (2) do not report to persons who that the sales activities of branch supervisory and supervisory control supervise those activities. In the managers and other sales managers procedures is not a ‘‘one-size-fits-all’’ situation where the size and resources should be subject to independent requirement. The NASD recognizes that of the firm and the scope and nature of oversight to ensure that supervisors do there is no single set of procedures that its activities make it impracticable for not perform the final review of their will be appropriate for all firms and the firm to achieve independence in this own sales activity. each firm must tailor such procedures to fashion, the firm may satisfy the Dual Members fit its business. In developing independence requirement by appropriate supervisory and supervisory alternative means such as establishing Proposed NASD Rule 3012 provides control procedures, each firm must additional policies and procedures to that a member that is in compliance consider factors such as its size, create a sufficient level of separation. with substantially similar requirements location, and nature of business Members would be required to report of the NYSE shall be deemed to be in activities. the testing and verification results to the compliance with the supervisory control firm’s senior management annually. requirements set forth in NASD Rule Supervisory Controls—General Recognizing that the independence 3012. Requirement requirement in connection with testing Office Inspection Under NASD Rule 3010, a member’s and verification may not be practical for supervisory system is required to smaller members, the proposed rule NASD Rule 3010(c) requires members change would allow an exemption from to inspect and review the activities of encompass the activities in which the 4 member engages as well as the activities this independence requirement for firms each office. To ensure that the of the member’s registered that do not conduct a public business, inspections are objective and not subject representatives and associated persons or have a capital requirement of $5,000 to conflicts of interests, the proposed in order to achieve compliance with or less, or employ 10 or fewer registered rule change would require that office applicable securities laws and representatives. inspections be conducted, by a person regulations and NASD rules. Not only who is independent from the activities Supervisory Controls—Customers’ being performed at the office and the must supervisory procedures be Activities persons providing supervision to the established, but such procedures must office. Similar to the general supervisory also be independently tested and The NASD believes that certain controls amendments discussed earlier, verified through a system of supervisory customer activities, such as the the independence requirements may be control procedures to ensure transmittal of customer funds or satisfied by reasonable means based on appropriate application and changes in customer address or the size and resources of the firm and effectiveness. The proposed rule change investment objectives, require the scope and nature of its activities. would require firms to develop and additional monitoring to help prevent Office inspection programs would be maintain a system of adequate fraud and theft of customer funds. Changes in customer investor objectives required to include, at a minimum, supervisory control procedures that (1) testing and verification of a member’s test and verify that the member’s would require additional protections supervisory procedures are reasonably because of the importance of maintaining accurate books and records 4 NASD Rule 3010(c) requires an inspection at designed, with respect to the activities least annually of each office of supervisory of the member and its registered in the course of the member’s business jurisdiction and cycle examinations of branch representatives and associated persons, and potential for sales practice abuse in offices. Although the rule does not specify the connection with the recording of frequency of inspections for unregistered offices, to achieve compliance with the NASD, Notice to Members 98–38 (May 1998) states inaccurate investment objectives for that in order to fulfill the general obligation to 3 See Securities Exchange Act Release No. 46858 customers. The monitoring of customer supervise, such inspections should be conducted (November 20, 2002) (SR–NYSE–2002–36). address changes would guard against according to a regular schedule. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70993 policies and procedures with respect to: Customer Mail IV. Solicitation of Comments (1) Safeguarding of customer funds and To prevent improper mail delivery if Interested persons are invited to securities; (2) maintaining books and a customer is away from his or her submit written data, views, and records; (3) supervision of customer regular address for an extended period arguments concerning the foregoing, accounts serviced by branch office of time, the proposed rule change would including whether the proposed rule is managers; (4) transmittal of customer allow members to hold mail for a consistent with the Act. Persons making funds; (5) validation of customer customer upon receiving written written submissions should file six address changes; and (6) validation of instructions from the customer, not to copies thereof with the Secretary, changes in customer account exceed two months if the customer is on Securities and Exchange Commission, information. vacation or traveling or three months if 450 Fifth Street, NW., Washington, DC The NASD recognizes that it may not the customer is going abroad. 20549–0609. Copies of the submission, be practical for members with small all subsequent amendments, all written offices to conduct an independent 2. Statutory Basis statements with respect to the proposed inspection. In this regard, the proposed The NASD believes that the proposed rule change that are filed with the rule change would allow the NASD to rule change is consistent with the Commission, and all written exempt members pursuant to the NASD provisions of section 15A(b)(6) of the communications relating to the proposed rule change between the Rule 9600 Series from the independence Act,5 which requires, among other Commission and any person other than requirement in the inspection of a things, that NASD’s rules must be those that may be withheld from the member’s office. designed to prevent fraudulent and public in accordance with the manipulative acts and practices, to Discretionary Authority provisions of 5 U.S.C. 552, will be promote just and equitable principles of available for inspection and copying in trade, and, in general, to protect NASD Rule 2510(d)(1) allows the Commission’s Public Reference investors and the public interest. The members to exercise time-and-price Room. Copies of such filing will also be NASD believes that the proposed rule discretion on orders for the purchase or available for inspection and copying at change is designed to accomplish these sale of a definite amount of a specified the principal office of the NASD. All security without prior written ends by requiring members to establish submissions should refer to the File No. authorization from the customer or prior more extensive supervisory and SR–NASD–2002–162 and should be written approval by the member, but supervisory control procedures to submitted by December 18, 2002. does not specify the duration of such monitor customer account activities of For the Commission, by the Division of discretionary authority. The proposed its employees and thereby reduce the potential for customer fraud and theft. Market Regulation, pursuant to delegated rule change would clarify that a firm’s authority.6 authority to exercise time and price B. Self-Regulatory Organization’s Margaret H. McFarland, discretion terminates at the end of the Statement on Burden on Competition Deputy Secretary. business day on which the customer [FR Doc. 02–30041 Filed 11–26–02; 8:45 am] granted such discretion, unless a signed The NASD does not believe that the authorization from the customer shows proposed rule change will result in any BILLING CODE 8010–01–P otherwise. The proposed rule change burden on competition that is not necessary or appropriate in furtherance would further require any exercise of SECURITIES AND EXCHANGE of the purposes of the Act, as amended. time or price discretion to be reflected COMMISSION on the order ticket. C. Self-Regulatory Organization’s [Release No. 34–46862; File No. SR–NASD– Changes in Customer Account Name or Statement on Comments on the 2002–129] Designation Proposed Rule Change Received from Members, Participants, or Others Self Regulatory Organizations; Order Because changes in account names or Granting Approval to Proposed Rule Written comments were neither designations in connection with order Change by the National Association of solicited nor received. executions can be subject to abuse, the Securities Dealers, Inc. Relating to the NASD believes that such changes III. Date of Effectiveness of the Security Futures Risk Disclosure should be approved by a qualified Proposed Rule Change and Timing for Statement person and the basis for the change Commission Action should be adequately documented. The November 20, 2002. proposed rule change would specify Within 35 days of the date of On September 25, 2002, the National that no changes to the account name(s) publication of this notice in the Federal Association of Securities Dealers, Inc. or designation(s), including related Register or within such longer period (i) (‘‘NASD’’) filed with the Securities and accounts or error accounts may be made as the Commission may designate up to Exchange Commission (‘‘Commission’’), unless previously authorized by the 90 days of such date if it finds such pursuant to section 19(b)(1) of the person designated to approve such longer period to be appropriate and Securities Exchange Act of 1934 1 2 changes. Such designated person would publishes its reasons for so finding or (‘‘Act’’) and rule 19b–4 thereunder, a be required to pass a qualifying (ii) as to which the self-regulatory proposed rule change relating to the principal examination appropriate to organization consents, the Commission Security Futures Risk Disclosure the business of the firm, such as the will: Statement. The proposed rule change (A) by order approve such proposed was published for comment in the General Securities Sales Supervisor 3 (Series 9/10) or General Securities rule change, or Federal Register on October 17, 2002. (B) institute proceedings to determine Principal (Series 24). The designated 6 person must document the essential whether the proposed rule change 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). facts relied upon in approving the should be disapproved. 2 17 CFR 240.19b–4. changes and maintain the record in a 3 See Securities Exchange Act Release No. 46614 central location. 5 15 U.S.C. 78o–1(b)(6). (October 7, 2002), 67 FR 64162. VerDate 0ct<31>2002 17:57 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70994 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Commission received no comments NASD–2002–129) be, and it hereby is, establishment, maintenance, and testing on the proposal. approved. of Internal Controls as well as several In addition, on September 25, 2002, For the Commission, by the Division of supervisory issues. Included are NASD submitted a separate proposed Market Regulation, pursuant to delegated amendments to Rule 342 (‘‘Offices— rule change relating to the Security authority.11 Approval, Supervision and Control’’) Futures Risk Disclosure Statement (File Margaret H. McFarland, and its Interpretation, 401 (‘‘Business No. SR–NASD–2001–28). At NASD’s Deputy Secretary. Conduct’’), 408 (‘‘Discretionary Power request, the Commission put that [FR Doc. 02–30043 Filed 11–26–02; 8:45 am] in Customers’ Accounts’’), and 410 proposed rule change into effect BILLING CODE 8010–01–P (‘‘Records of Orders’’). Additions are in summarily pursuant to section 19(b)(3) italics; deletions are in brackets. of the Act,4 so that the Security Futures * * * * * Risk Disclosure Statement would be in SECURITIES AND EXCHANGE Offices—Approval, Supervision and effect prior to the start of trading in COMMISSION 5 Control security futures. Section 19(b)(3) of the [Release No. 34–46858; File No. SR–NYSE– 6 Act requires that any proposed rule 2002–36] Rule 342. (a) Each office, department change put into effect summarily shall or business activity of a member or be filed promptly thereafter in Self-Regulatory Organizations; Notice member organization (including foreign accordance with the provisions of of Filing of Proposed Rule Change by incorporated branch offices) shall be section 19(b)(1) of the Act.7 the New York Stock Exchange, Inc. To under the supervision and control of the Accordingly, NASD filed this proposed Adopt Amendments to Exchange Rule member or member organization rule change to gain final approval of the 342 (‘‘Offices—Approval, Supervision establishing it and of the personnel Security Futures Risk Disclosure and Control’’) and its Interpretation, delegated such authority and Statement. Rule 401 (‘‘Business Conduct’’), Rule responsibility. The Commission finds that the 408 (‘‘Discretionary Power in The person in charge of a group of proposed rule change is consistent with Customers’ Accounts’’), and Rule 410 employees shall reasonably discharge the requirements of the Act and the (‘‘Records of Orders’’) his duties and obligations in connection rules and regulations thereunder with supervision and control of the November 20, 2002. activities of those employees related to applicable to a national securities Pursuant to section 19(b)(1) of the 8 the business of their employer and association. In particular, the 1 Securities Exchange Act of 1934, and compliance with securities laws and Commission finds that the proposal is 2 Rule 19b–4 thereunder, notice is regulations. consistent with the requirements of hereby given that on August 16, 2002, 9 (b) The general partners or directors of section 15A(b)(6) of the Act, which the New York Stock Exchange, Inc. requires, among other things, that each member organization shall provide (‘‘NYSE’’ or ‘‘Exchange’’) filed with the for appropriate supervisory control and NASD’s rules be designed to prevent Securities and Exchange Commission fraudulent and manipulative acts and shall designate a general partner or (‘‘SEC’’ or ‘‘Commission’’) the proposed principal executive officer to assume practices, and, in general, to protect rule change as described in Items I, II, investors and the public interest. Under overall authority and responsibility for and III below, which items have been internal supervision and control of the NASD’s rules, the Security Futures Risk prepared by the self-regulatory Disclosure Statement must be provided 3 organization and compliance with organization. On November 20, 2002, securities’ laws and regulations. This to customers at or prior to the time the the Exchange submitted Amendment customer’s account is approved for 4 person shall: No. 1 to the proposed rule change. (1) delegate to qualified principals or trading security futures. Among other The Commission is publishing this employees responsibility and authority things, the statement describes the risks notice to solicit comments on the for supervision and control of each of security futures, how they trade, proposed rule change from interested office, department or business activity, margin, effects of leverage, settlement persons. procedures, customer account and provide for appropriate procedures protections, and the tax consequences of I. Self-Regulatory Organization’s of supervision and control. trading security futures. Accordingly, Statement of the Terms of Substance of (2) establish a separate system of the Commission believes that the the Proposed Rule Change follow-up and review to determine that Security Futures Risk Disclosure The proposed rule change is intended the delegated authority and Statement should inform customers that to address several issues involving the responsibility is being properly trade security futures of the exercised. characteristics of security futures and 11 17 CFR 200.30–3(a)(12). (c) The prior consent of the Exchange the risks associated with trading them. 1 15 U.S.C. 78s(b)(2). shall be obtained for each office It is therefore ordered, pursuant to 2 17 CFR 240.19b–4. established by a member or member 3 section 19(b)(2) of the Act 10, that the The NASD submitted a proposed rule change organization, other than a main office. addressing internal controls and supervisory issues (d) Qualified persons acceptable to proposed rule change (File No. SR– (SR–NASD–2002–162), which the Commission is publishing in the Federal Register for public the Exchange shall be in charge of: (1) any office of a member or member 4 15 U.S.C. 78s(b)(3). comment simultaneously with the instant proposed rule change. See Securities Exchange Act Release 5 See Securities Exchange Act Release No. 46612 organization, No. 46859 (November 20, 2002). (October 7, 2002), 67 FR 64151. (2) any regional or other group of 4 See letter to Nancy Sanow, Assistant Director, 6 15 U.S.C. 78s(b)(3). offices, Division of Market Regulation, Commission, from 7 15 U.S.C. 78(s)(b)(1). Darla Stuckey, Corporate Secretary, NYSE, dated (3) any sales department or activity. 8 In approving this proposed rule change, the November 18, 2002 (‘‘Amendment No. 1’’). In (e) The amounts and types of credit Commission has considered the proposed rule’s Amendment No. 1, the Exchange added ‘‘customer extended by a member organization impact on efficiency, competition, and capital changes of investment objectives’’ to the list of formation. 15 U.S.C. 78c(f). enumerated activities with regard to which shall be supervised by members or 9 15 U.S.C. 78o–3(b)(6). Exchange members must maintain written policies allied members qualified by experience 10 15 U.S.C. 78s(b)(2). and procedures. for such control in the types of business VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70995 in which the member organization (iii) Sales practices, at the time of entry. Such discretionary extends credit. (iv) Books and records, accounts shall receive frequent Supplementary Material: (v) Finance and operations, [and] appropriate supervisory review by a .10 through .18 unchanged. (vi) Supervision[.], and person delegated such responsibility .19 Supervision of Managers.— (vii) Internal Controls. under Rule 342(b)(1), who is not Members and member organizations If any of these areas do not apply to exercising the discretionary authority. A whose Branch Office Managers, Sales the member or member organization, the written statement of the supervisory Managers, Regional/District Sales report should so state. procedures governing such accounts Managers, or any person performing a Business Conduct must be maintained. similar supervisory function, service (c) No member or allied member or customer accounts must develop and Rule 401. (a) Every member, allied employee of a member organization implement written policies and member and member organization shall exercising discretionary power in any procedures reasonably designed to at all times adhere to the principles of customer’s account shall (and no independently supervise each such good business practice in the conduct of member organization shall permit any person’s customer account activity. his or its business affairs. member, allied member, or employee .20 through .22 unchanged. (b) Each member and member thereof exercising discretionary power .23 Internal Controls—Pursuant to organization shall maintain written in any customer’s account to) effect paragraphs (a) and (b) of this Rule, policies and procedures, administered purchases or sales of securities which members and member organizations pursuant to the internal control are excessive in size or frequency in must develop and maintain adequate requirements prescribed under Rule view of the financial resources of such controls over each of its business 342.23, specifically with respect to the customer. activities. Such controls must provide following activities: (d) The provisions of this rule shall for the establishment of procedures for (1) Transmittals of funds (e.g., wires, not apply to discretion as to the price at independent verification and testing of checks, etc.) or securities: which or the time when an order given those business activities separate and (i) from customer accounts to third by a customer for the purchase or sale apart from the day-to-day supervision of party accounts (i.e., a transmittal that of a definite amount of a specified such functions. A review of each would result in a change of beneficial security shall be executed. The member’s or member organization’s ownership.); authority to exercise time and price efforts with respect to internal controls, (ii) from customer accounts to outside discretion will be considered to be in including a summary of tests conducted entities (e.g., banks, investment effect only until the end of the business and significant exceptions identified, companies, etc.); day on which the customer granted such must be included in the Annual Report (iii) from customer accounts to discretion, absent a specific, written, required by .30 of this Rule. The locations other than a customer’s contrary indication signed and dated by independent verification and testing primary residence (e.g., post office box, the customer. Any exercise of time and procedures shall not apply to members ‘‘in care of’’ accounts, alternate address, price discretion must be reflected on the and member organizations that do not etc.); and order ticket. conduct a public business, or that have (iv) between customers and registered a capital requirement of $5,000 or less, representatives (including the hand- Records of Orders or that employ 10 or fewer registered delivery of checks). Rule 410. (a) Every member or [his] representatives. (2) Customer changes of address. member organization must [shall] (See also Rule 401(b)) (3) Customer changes of investment preserve for at least three years the first .30 Annual Report.—By April 1 of objectives. The policies and procedures two years in an easily accessible place, each year, each member not associated required under (b)(1) and (b)(2) above a record of: with a member organization and each must include a means/method of [Transmitted to Floor member organization shall prepare, and customer confirmation, notification, or (1) Every order transmitted directly or each member organization shall submit follow-up that can be documented. indirectly by such member or to its chief executive officer or managing Discretionary Power in Customers’ organization to the Floor, which record partner, a report on the member’s or Accounts shall include the name and amount of member organization’s supervision and the security, the terms of the order, the compliance effort during the preceding Rule 408 (a) No member, allied time when it was so transmitted, and year. The report shall include: member or employee of a member the time at which a report of execution (a) A tabulation of the reports organization shall exercise any was received. Carried to the Floor] pertaining to customer complaints and discretionary power in any customer’s [(2)] (1) every order received by such internal investigations made to the account or accept orders for an account member or member organization, either Exchange during the preceding year from a person other than the customer orally or in writing, [and carried by such pursuant to Rules 351(d) and (e)(ii), without first obtaining written member to the Floor,] which record (b) Identification and analysis of authorization of the customer. must [shall] include the name and significant compliance problems, plans (b) No member, allied member or amount of the security, the terms of the for future systems or procedures to employee of a member organization order, the time when it was so received prevent and detect violations and shall exercise any discretionary power and the time at [as] which a report of problems, and an assessment of the in any customer’s account, without first execution was received. preceding year’s efforts of this nature, notifying and obtaining the approval of [Entered Off Hours] and another person delegated under Rule [(3)] (2) every order entered by such (c) Discussion of the preceding year’s 342(b)(1) with authority to approve the member or member organization into compliance efforts, new procedures, handling of such accounts. Every order the Off-Hours Trading Facility (as Rule educational programs, etc. in each of the entered on a discretionary basis by a 900 (Off-Hours Trading: Applicability following areas: member, allied member or employee of and Definitions) defines that term), (i) Antifraud and trading practices, a member organization must be which record must [shall] include the (ii) Investment banking activities, identified as discretionary on the order name and amount of the security, the VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70996 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices terms of the order, the time when it was organizations are expected to be both supervision and internal controls, so entered, and the time at which a conducted at least annually pursuant to including the appropriate application of report of execution was received. this Rule, unless it has been such controls and the independent [Cancellation] demonstrated to the satisfaction of the testing of their efficiency. In the course [(4)] (3) the time of the entry of every Exchange that because of proximity, of reviewing the issues raised by these cancellation of an order covered by (1)[,] special reporting or supervisory cases, Exchange staff has met with and (2) [and (3)] above. practice, other arrangements[,] may management of several member [By Accounts] Changes In Account satisfy the Rule’s requirements. [certain organizations, undertaken special sales Name or Designation offices may not warrant an annual practice examinations of potential Before any order covered by (1)[,] or inspection.] All required inspections problem areas, and conducted surveys (2) [or (3)] above is executed, there must must be conducted by a person who is of members’ and member organizations’ [shall] be placed upon the order slip or independent of the ongoing supervision, existing policies and procedures. As a other similar record of the member[,] or control, or performance evaluation of result, the Exchange is proposing a [his] member organization the name or the branch office (i.e., not the Branch number of initiatives intended to designation of the account for which Office Manager, Sales Manager, District/ generally bolster the overall internal such order is to be executed. No change Regional Manager assigned to the office, controls and procedures of members in such account name (including related or any other person performing a similar and member organizations and to accounts) or designation (including supervisory function). Written reports of specifically require such controls and error accounts) shall be made unless the these inspections, or the written procedures in certain areas that have change has been authorized by [the] a authorization of an alternative been identified as particularly member, [or another member,] allied arrangement, are to be kept on file by problematic. It is expected that the member, or a person or persons the organization for a minimum period proposed amendments will help to designated under the provisions of Rule of three years. focus and reinforce members’ and 342(b)(1). [in his organization who An annual branch office inspection member organizations’ internal control shall,] Such person must, prior to giving program must include, but is not limited policies. The proposals include the his or her approval of [such] the account to, testing and independent verification addition of paragraph .23 to NYSE Rule designation change, be personally of internal controls related to the 342 (‘‘Offices—Approval, Supervision informed of the essential facts relative following areas: and Control’’) which addresses internal thereto and [shall] indicate his or her (1) Safeguarding of customer funds control requirements generally, as well approval of such change in writing on and securities, as amendments to Rule 401 (‘‘Business the order or other similar record of the (2) Maintaining books and records, Conduct’’) which identify and require member or member organization. The (3) Supervision of customer accounts specific internal control safeguards essential facts relied upon by the person serviced by Branch Office Managers, related to the transmission of customer approving the change must be (4) Transmittal of funds between funds and securities, and changes of documented in writing and maintained customers and registered customer address. in a central location. representatives and between customers The proposals also address related Exceptions and third parties, supervision and/or control issues that (5) Validation of customer address were encompassed in the Exchange’s Under exceptional circumstances, the changes, and Exchange may upon written request review including amendments to: NYSE (6) Validation of changes in customer Rule 342 (‘‘Offices—Approval, waive the requirements contained in (1), account information. (2) and (3) above. Supervision and Control’’) that would For purposes of this interpretation, require systems and procedures to (b) Every order in any manner ‘‘annual’’ means once in a calendar year. transmitted or carried to the Floor and independently supervise sales managers [covered by (1) or (2) above to be] * * * * * who handle customer accounts; NYSE executed pursuant to Section 11(a)(1)(G) II. Self-Regulatory Organization’s Rule 408 (‘‘Discretionary Power in of the Act and Rule 11a1–1(T) Statement of the Purpose of, and Customers’ Accounts’’) that would thereunder must [shall] be identified in Statutory Basis for, the Proposed Rule clarify time limits on time-and-price a manner that will enable the executing Change discretionary authority; NYSE Rule 410 (‘‘Records of Orders’’) that would member to disclose to other members In its filing with the Commission, the that the order is subject to those expand the Rule’s application and Exchange included statements clarify its supervisory and provisions. concerning the purpose of, and basis for, (See also Rules 112A.10 and recordkeeping provisions; and to the the proposed rule change. The text of 123A.45.) Interpretation of NYSE Rule 342 that .10 For purposes of this Rule, a these statements may be examined at would require persons who conduct person designated under the provisions the places specified in Item IV below. branch office inspections to be of Rule 342(b)(1) to approve account The Exchange has prepared summaries, independent of such office’s ongoing name or designation changes must pass set forth in sections A, B, and C below supervision, control, or performance an examination acceptable to the of the most significant aspects of such evaluation. statements. Exchange. Supervision and Control INTERPRETATION A. Self-Regulatory Organization’s Statement of the Purpose of, and NYSE Rule 342 prescribes the general Rule 342 OFFICES—APPROVAL, Statutory Basis for, the Proposed Rule requirement that ‘‘[e]ach office, SUPERVISION AND CONTROL Changes department or business activity of a (a)(b) member or member organization 1. Purpose (including foreign incorporated branch .03 Annual Branch Office Inspection Cases involving misappropriation of offices) shall be under the supervision [At least annual b]Branch office funds and securities have highlighted and control of the member organization inspections by members and member the need to re-examine issues related to establishing it and of the personnel VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70997 delegated such authority and developed, established, and effectively customer changes of investment responsibility.’’ In this context, maintained. objectives. ‘‘supervision’’ refers to the ongoing, Internal Controls—Specific day-to-day review of each business Additional Amendments Requirements activity to ensure overall compliance The following proposed amendments with applicable rules and regulations. A The following proposed amendments address additional specific supervision member organization’s supervisory require that internal control policies and and/or control issues identified by structure is reflected in its policy and procedures be adopted that address Exchange staff during the course of their the manner in which personnel specific areas identified to be review: implement the systems and procedures particularly susceptible to potential designed to enforce that policy. abuse. These include the transmission Supervision of Sales Managers ‘‘Control,’’ on the other hand, refers to of customer funds and securities and the development of these systems and changes of customer address. Proposed NYSE Rule 342.19 requires procedures and to the independent The Exchange states that it is the development and implementation of oversight and testing of them in order to recognized that no single approach to written policies and procedures to measure and maintain their internal controls can be appropriate for independently supervise sales managers effectiveness. Such internal controls all business models given differences in and other supervisory personnel who typically involve random sampling of organizational size, supervisory handle customer accounts. This supervisory functions to identify structure, scope of business activities, requirement applies to Branch Office shortcomings, gaps, or other products offered, location of branch Managers, Regional/District Sales inefficiencies. Internal controls also offices, etc. Therefore, the controls Managers, or any person performing a involve ongoing reassessment of these established and implemented should similar supervisory function. Such functions to determine whether they are reasonably conform to the nature of the policies and procedures are expected to serving their intended purpose (i.e., business conducted. encompass all sales-related activities to have they been updated to address new include, at a minimum, new account or modified means of doing business?). Business Conduct: Transmission of approval, the monitoring of customer Internal controls should, therefore, be Customers’ Funds and Securities/ account activity (for suitability, considered a means by which the Customer Changes of Address unauthorized transactions, etc.), and process of supervision is analyzed, Proposed NYSE Rule 401(b)(1) prior approval of account designation tested, and refined. The following sets clarifies that, consistent with their duty changes (both ‘‘cancel and re-bills’’ and forth proposed internal control to adhere to principles of good business ‘‘order errors’’) pursuant to NYSE Rule requirements, both general and specific, practice, members and member 410. This provision is intended to designed to highlight the importance of organizations must maintain written ensure all sales activity is monitored for such controls, identify those areas policies, procedures, and controls over compliance with applicable regulatory where they can be most effectively the transmission of customer funds and requirements by persons who do not implemented, and provide minimum securities. The proposed amendments have a personal interest in such activity standards for their application. specify certain types of transmission and to remove doubt with respect to Internal Controls—General Requirement based on their potential for abuse. These whether managers may ‘‘self-approve’’ their sales-related activities. Proposed paragraph .23 of NYSE Rule include transmission of funds (e.g., wires, checks, etc.) or securities: 342 elaborates upon the general • Time-and-Price Discretionary Power in requirement that members and member From customer accounts to third Customers’ Accounts organizations develop and maintain party accounts (i.e., a transmittal that adequate controls over each of their would result in a change of beneficial Proposed Amendment to NYSE Rule business activities. Paragraph .23 further ownership); 408(d) limits the authority of registered • requires that such controls must provide From customer accounts to outside representatives to exercise time-and- for the establishment of procedures for entities (e.g., banks, investment price discretion 5 over customer orders, independent verification and testing of companies, etc.); absent a signed authorization from the those business activities separate and • From customer accounts to customer, to the end of the business day apart from the day-to-day supervision of locations other than a customer’s on which the customer granted such such functions. A summary of these primary residence (e.g., post office box, discretion. NYSE Rule 408(d) currently actions is required to be included in the ‘‘in care of’’ account, alternate address, allows the exercise of time-and-price required Annual Report to a member etc.); and discretion, without written organization’s chief executive officer or • Between customers and registered authorization, on orders for the managing partner per NYSE Rule representatives (including the hand purchase or sale of a definite amount of 342.30. delivery of checks). a specified security, but is silent on In recognition of the fact that the Proposed NYSE Rule 401(b)(2) such authority’s length of effectiveness. ‘‘independent verification and testing’’ requires written policies and controls to The absence of clear guidance on this requirement may not be practical or monitor customer changes of address, point has been the source of interpretive reasonable for certain business models, including a reasonable method of uncertainty. The proposed amendment’s an exemption from this requirement is customer notification that can be establishment of a specific time available to members or member documented. The purpose of this limitation will eliminate uncertainty in organizations that do not conduct a amendment is to prevent the delivery of this regard. public business, or have a capital confirmations, statements, and other requirement of $5,000 or less, or employ account-related documentation to other 5 Time-and-price discretion is authority granted (usually informally) by a customer to a registered 10 or fewer registered representatives. than the beneficial owner of the account representative that allows the representative to This exemption does not, however, or their duly authorized agent. Proposed exercise judgment, based on prevailing market provide relief from the general NYSE Rule 401(b)(3) requires written conditions, as to when and at what price to execute requirement that internal controls be policies and controls to monitor a customer order. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 70998 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Records of Orders: Record Preservation/ account. The proposed amendments B. Self-Regulatory Organization’s Account Designation Changes make clear that the provisions of the Statement on Burden on Competition Rule also apply to designation changes NYSE Rule 410, as currently written, The Exchange believes that the applies only to orders transmitted or to related accounts (e.g., ‘‘Smith Trading Account’’ to ‘‘Smith IRA’’) and to orders proposed rule change does not impose carried to the Floor of the Exchange. It any burden on competition not requires members and member cancelled and moved into an error account. necessary or appropriate in furtherance organizations to preserve a record of of the purposes of the Act. certain specified terms of each order, • Require documentation of the and it prescribes procedures for essential facts relied upon when C. Self-Regulatory Organization’s administering changes in account name approving such account name or Statement on Comments on the or designation on previously executed designation changes in order to Proposed Rule Change Received From orders. The proposed amendments maintain a record, available for review, Members, Participants or Others would: of the basis for the change. • Written comments were neither Expand the application of the Rule Annual Branch Office Inspection to all orders (sent to any market-place), solicited nor received. not just those carried or transmitted to The proposed amendments also III. Date of Effectiveness of the the Floor. The Exchange states that the include changes to the written Proposed Rule Change and Timing for expansion of the Rule to include all Interpretation of NYSE Rule 342, Commission Action orders sent to any marketplace is clarifying that persons who conduct a necessary for effective regulatory member organization’s annual branch Within 35 days of the publication of oversight and enforcement proceedings. office inspection must be independent this notice in the Federal Register or The Exchange also states that the of any ongoing supervision, control, or within such longer period: (i) as the information requested is not duplicative performance evaluation in connection Commission may designate up to 90 of existing NASD recordkeeping with the particular office. This days of such date if it finds such longer requirements.6 clarification recognizes that, with regard period to be appropriate and publishes • Require that a person designated to to such persons, an objective its reasons for so finding or (ii) as to approve account name or designation perspective is best maintained by which the self-regulatory organization changes be qualified by passing an having no interest in a branch’s ‘‘bottom consents, the Commission will: examination acceptable to the Exchange. line’’ and by being outside of the (A) By order approve such proposed Currently, the Rule reads that such branch’s supervisory structure. In rule change, or changes shall be approved by a person addition, the Interpretation requires that or persons designated under the annual branch office inspection (B) Institute proceedings to determine provisions of NYSE Rule 342(b)(1). programs include, at minimum, testing whether the proposed rule change While this provision requires that the and verification of specified internal should be disapproved. designated person be ‘‘qualified,’’ it controls including: IV. Solicitation of Comments does not specifically prescribe an • Safeguarding of customer funds and examination requirement. Given that securities, Interested persons are invited to account name and designation changes • Maintaining books and records, submit written data, views and can be indicative of serious sales • arguments concerning the foregoing, practice violations such as unauthorized Supervision of customer accounts serviced by Branch Office Managers, including whether the proposed rule or unsuitable trading, the Exchange has change is consistent with the Act. • Transmittal of funds between long held that this exceptionally Persons making written submissions customers and registered representatives important and sensitive area be subject should file six copies thereof with the and between customers and third to heightened supervisory scrutiny. Secretary, Securities and Exchange Accordingly, proposed paragraph .10 parties, • Commission, 450 Fifth Street, NW., would specify that, for purposes of Validation of customer address Washington, DC 20549–0609. Copies of NYSE Rule 410, a person designated changes, and the submission, all subsequent under the provisions of NYSE Rule • Validation of changes in customer amendments, all written statements 342(b)(1) would be required to pass a account designation. with respect to the proposed rule qualifying examination such as the 2. Statutory Basis change filed with the Commission and General Securities Sales Supervisor all written communications relating to Qualification Examination (‘‘Series 9/ The basis for the proposed rule the proposed rule changes that are filed 10’’), the Compliance Official change is the requirement under section with the Commission and all written Examination (‘‘Series 14’’), or other 6(b)(5) of the Act 7 that an Exchange communications relating to the sales supervisory examination have rules that are designed to promote proposed rule change between the acceptable to the Exchange. just and equitable principles of trade, to • Commission and any person, other than Clarify that the Rule applies to all remove impediments to and to perfect those that may be withheld from the account name and designation changes, the mechanism of a free and open public in accordance with the including related accounts and order market and a national market system provisions of 5 U.S.C. 552, will be errors. Some have read the current Rule and, in general, to protect investors and available for inspection and copying in to apply only to ‘‘Cancel-and-Rebills’’ in the public interest. The proposed rule the Commission’s Public Reference which a trade is moved from one change is intended to foster the Room. Copies of such filing will also be customer account to another unrelated strengthening of NYSE members’ and available for inspection and copying at member organizations’ internal controls the principal office of the NYSE. All 6 Telephone call with Donald Van Weezel, Vice and supervisory systems. President, Regulatory Affairs, NYSE, and Florence submissions should refer to File No. Harmon, Senior Special Counsel, Division of SR–NYSE–2002–36 and should be Market Regulation, Commission, October 25, 2002. 7 15 U.S.C. 78f(b)(5). submitted by December 18, 2002. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 70999 For the Commission, by the Division of an independent agency in the judicial among other things, officers and Market Regulation, pursuant to the delegated branch of the United States directors of publicly traded companies authority.8 Government. The Commission who commit fraud and related offenses, Margaret H. McFarland, promulgates sentencing guidelines and offenses that endanger the solvency or Deputy Secretary. policy statements for federal courts financial security of a substantial [FR Doc. 02–30040 Filed 11–26–02; 8:45 am] pursuant to 28 U.S.C. § 994(a). The number of victims, fraud offenses that BILLING CODE 8010–01–P Commission also periodically reviews involve significantly greater than 50 and revises previously promulgated victims, and obstruction of justice guidelines pursuant to 28 U.S.C. offenses that involve the destruction of UNITED STATES SENTENCING § 994(o) and submits guideline evidence. COMMISSION amendments to the Congress not later First, the proposed amendment sets than the first day of May of each year forth two options for amending § 2B1.1 Sentencing Guidelines for United pursuant to 28 U.S.C. § 994(p). (Larceny, Embezzlement, and Other States Courts The Commission seeks comment on Forms of Theft; Offenses Involving the proposed amendments, issues for Stolen Property; Property Damage or AGENCY: United States Sentencing comment, and any other aspect of the Destruction; Fraud and Deceit; Forgery; Commission. sentencing guidelines, policy Offenses Involving Altered or ACTION: Notice of proposed temporary, statements, and commentary. Counterfeit Instruments Other than emergency amendments to sentencing The proposed amendments are Counterfeit Bearer Obligations of the guidelines, policy statements, and presented in this notice in one of two United States) to address the directive commentary. Notice of intent to formats. First, some of the amendments contained in section 1104 of the Act repromulgate temporary, emergency are proposed as specific revisions to a pertaining to fraud offenses involving amendments as permanent, non- guideline or commentary. Bracketed text significantly greater than 50 victims. emergency amendments. Request for within a proposed amendment indicates Option One expands the victims table in public comment. a heightened interest on the § 2B1.1(b)(2). Currently, subsection Commission’s part for comment and (b)(2) provides a two level enhancement SUMMARY: Pursuant to section 994(a), suggestions for alternative policy if the offense involved more than 10, but (o), and (p) of title 28, United States choices; for example, a proposed less than 50, victims or was committed Code, sections 805, 905, and 1104 of the enhancement of [2] levels indicates that through mass-marketing, or a four level Sarbanes-Oxley Act of 2002, Pub. L. the Commission is considering, and enhancement if the offense involved 50 107–204, and section 314 of the invites comment on, alternative policy or more victims. Option One provides Bipartisan Campaign Reform Act of choices regarding the appropriate level an additional two levels, for a total of 2002, Pub. L. 107–155, the Commission of enhancement. Similarly, bracketed six levels, if the offense involved 250 is considering promulgating certain text within a specific offense victims or more. Alternatively, Option amendments to the sentencing characteristic or application note means Two provides an encouraged upward guidelines, policy statements, and that the Commission specifically invites departure provision if the offense commentary. This notice sets forth the comment on whether the proposed involved substantially more than 50 proposed amendments and, for each provision is appropriate. Second, the victims. proposed amendment, a synopsis of the Commission has highlighted certain Second, the proposed amendment issues addressed by that amendment. issues for comment and invites modifies subsection § 2B1.1(b)(12)(B) to Issues for comment follow each suggestions on how the Commission address directives contained in sections proposed amendment. should respond to those issues. 805 and 1104 of the Act pertaining to DATES: Written public comment on Additional information pertaining to securities and accounting fraud offenses these proposed emergency amendments the proposed amendments described in and fraud offenses that endanger the should be received by the Commission this notice may be accessed through the solvency or financial security of a not later than December 18, 2002, in Commission’s Web site at http:// substantial number of victims. anticipation of a vote to promulgate www.ussc.gov. Subsection (b)(12)(B) currently provides a four level enhancement and a these emergency amendments at the Authority: 28 U.S.C. § 994(a), (o), (p), (x); Commission’s January 2003 public minimum offense level of 24 if the sections 805, 905, and 1104 of Pub. L. 107– offense substantially jeopardized the meeting. Thereafter, written public 204; section 314 of Pub. L. 107–155; USSC comment on whether to repromulgate Rules of Practice and Procedure, Rule 4.4. safety and soundness of a financial the emergency amendments as institution. The proposed amendment permanent, non-emergency Diana E. Murphy, expands the scope of this enhancement amendments should be received by the Chair. to apply to offenses that substantially endanger the solvency or financial Commission not later than February 18, 1. Corporate Fraud 2003. security of a publicly traded company. Synopsis of Proposed Amendment: The enhancement does not require the ADDRESSES: Public comment should be This proposed amendment implements court to determine whether the offense sent to: United States Sentencing the Sarbanes-Oxley Act of 2002, Pub. L. endangered the solvency or financial Commission, One Columbus Circle, NE., 107–204 (the ‘‘Act’’). The Act requires security of each individual victim. Such Suite 2–500, Washington, DC 20002– the Commission to promulgate a determination likely would unduly 8002, Attention: Public Information. guideline amendments under complicate the sentencing process. FOR FURTHER INFORMATION CONTACT: emergency amendment authority not Instead the enhancement is based on a Michael Courlander, Public Affairs later than January 25, 2003. In addition presumption that if the offense conduct Officer, Telephone: (202) 502–4590. to several general directives regarding endangered the solvency or financial SUPPLEMENTARY INFORMATION: The fraud and obstruction of justice offenses, security of a publicly traded company, United States Sentencing Commission is the Act also sets forth specific directives the offense similarly affected a that require the Commission to substantial number of individual 8 17 CFR 200.30–3(a)(12). promulgate amendments addressing, victims. The proposed amendment also VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 71000 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices contains options for extending the scope hold a heightened position of trust to level enhancement to § 2J1.2 of the enhancement to include other investors. (Obstruction of Justice) that applies if organizations with a substantial number Pursuant to the corresponding the offense (i) involved the destruction, of employees. This extension might be application note, ‘‘securities law’’ (i) alteration, or fabrication of a substantial appropriate because offenses that means 18 U.S.C. §§ 1348, 1350, and the amount of evidence; (ii) involved the endanger other large organizations may, provisions of law referred to in section selection of especially probative or like offenses that endanger publicly 3(a)(47) of the Securities Exchange Act essential evidence to destroy or alter; or traded companies, affect the solvency or of 1934 (15 U.S.C. § 78c(a)(47)); and (ii) (iii) was otherwise extensive in scope, financial security of a substantial includes the rules, regulations, and planning, or preparation. An issue for number of victims. orders issued by the Securities and comment follows the proposed The corresponding application note to Exchange Commission pursuant to the amendment regarding whether the base the new enhancement sets forth provisions of law referred to in section offense level in § 2J1.2 should be situations in which an offense shall be 3(a)(47). increased and whether an enhancement considered to have endangered the The proposed amendment also for the use of sophisticated means solvency or financial security of a includes an issue for comment regarding should be included in § 2J1.2. There is publicly traded company. The note, whether, in addition to the two level an additional issue for comment which is modeled after an analogous enhancement, a minimum offense level regarding whether modifications also note for the financial institutions prong should be provided for such offenses should be made to the guideline of the enhancement, includes references committed by officers and directors of covering perjury offenses, § 2J1.3 to insolvency, filing for bankruptcy, publicly traded companies. The issue (Perjury or Subornation of Perjury; substantially reducing the value of the for comment also requests comment Bribery of Witness) in light of the company’s stock, and substantially regarding whether the scope of the proposed amendment to the obstruction reducing the company’s workforce enhancement should be broadened to of justice guideline, in order to maintain among the list of situations that would apply to an officer or director of other sentencing proportionality between the large organizations. trigger application of the new two types of offenses. Additional issues for comment are enhancement. Finally, the proposed amendment included regarding whether other addresses new offenses created by the An issue for comment follows the enhancements, possibly to apply Act. Section 1520 of title 18, United proposed amendment regarding whether cumulatively, should be added to States Code, is referenced to § 2E5.3 the list of situations should be a non- § 2B1.1 in response to the Act, as well (False Statements and Concealment of exhaustive list that the court may as whether further guidance should be Facts in Relation to Documents consider in determining whether to provided regarding the calculation of Required by the Employee Retirement apply the enhancement. loss in complex white collar offenses. Income Security Act; Failure to Third, the proposed amendment Fourth, the proposed amendment Maintain and Falsification of Records addresses the directive contained in provides an option for expanding the Required by the Labor Management section 1104 of the Act pertaining to loss table at § 2B1.1(b)(1). Currently, the Reporting and Disclosure Act). This fraud offenses committed by officers or loss table provides sentencing offense provides a statutory maximum directors of publicly traded corporations enhancements in two level increments of 10 years’ imprisonment if the by providing a new two level up to a maximum of 26 levels for defendant certifies the publicly traded enhancement at § 2B1.1(b)(13). This offenses in which the loss exceeded company’s periodic financial report enhancement would apply if the offense $100,000,000. The proposed knowing that the statement does not involved a violation of any provision of amendment provides two additional comply with all requirements of the securities law and, at the time of the levels to the table; an increase of 28 Securities and Exchange Commission offense, the defendant was an officer or levels for offenses in which the loss (and 20 years’ imprisonment if that director of a publicly traded company. exceeded $200,000,000, and an increase certification is done willfully). The This enhancement would apply of 30 levels for offenses in which the proposed amendment also expands the regardless of whether the defendant was loss exceeded $400,000,000. This current cross reference in § 2E5.3(a)(2) convicted under a specific securities proposed addition to the loss table specifically to cover fraud and fraud statute (e.g., 18 U.S.C. § 1348, a would address congressional concern obstruction of justice offenses. new offense created by the Act expressed in the Act regarding Accordingly, if a defendant who is specifically prohibiting securities fraud) particularly extensive and serious fraud convicted under 18 U.S.C. § 1520 or under a general fraud statute (e.g., 18 offenses and would more fully certified the financial report of a U.S.C. § 1341, prohibiting wire fraud), effectuate increases in statutory publicly traded company in order to provided that the offense involved a maximum penalties, for example, the facilitate a fraud, the proposed change violation of securities law. The increase in the statutory maximum to the cross reference provision would corresponding application note provides penalties for wire fraud and mail fraud require the court to apply § 2B1.1 that in cases in which the new offenses from five to 20 years (section instead of § 2E5.3. Other new offenses enhancement applies, the current 903 of the Act). An issue for comment are proposed to be included in enhancement for abuse of position of follows the proposed amendment Appendix A (Statutory Index) as well as trust at § 3B1.3 (Abuse of Position of regarding whether more extensive the statutory provisions of the relevant Trust or Use of Special Skill) does not modifications to the loss table should be guidelines. apply. Although the directive only made in response to the Act, specifically addresses officers and particularly for offenses involving Proposed Amendment directors of publicly traded companies, significantly lower loss amounts. Section 2B1.1(b)(1) is amended by the proposed amendment provides an Fifth, the proposed amendment striking the period and inserting a semi- option to include registered brokers or implements the directives pertaining to colon; and by adding at the end the dealers because they also are subject to obstruction of justice offenses contained following: certain requirements under securities in sections 805 and 1104 of the Act. The ‘‘(O) More than $200,000,000 add 28 law and as such may be considered to proposed amendment adds a new two (P) More than $400,000,000 add 30.’’. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 71001 [Option 1 for Substantial Number of of subsection (b)(12)(B)(i), an offense the Securities and Exchange Victims: shall be considered to have substantially Commission pursuant to the provisions Section 2B1.1 is amended by striking jeopardized the safety and soundness of of law referred to in section 3(a)(47). subsection (b)(2) and inserting the a financial institution, if, as a (B) In General.—A conviction under following: consequence of the offense, the securities law is not required in order ‘‘(2) (Apply the greatest) If the institution (i) became insolvent; (ii) for subsection (b)(13) to apply. This offense— substantially reduced benefits to subsection would apply in the case of a (A) (i) involved more than 10, but less pensioners or insureds; (iii) was unable defendant convicted under a general than 50, victims; or (ii) was committed on demand to refund fully any deposit, fraud statute if the defendant’s conduct through mass-marketing, increase by 2 payment, or investment; (iv) was so violated securities law. For example, levels; depleted of its assets as to be forced to this subsection would apply if an officer (B) involved at least 50, but less than merge with another institution in order of a publicly traded company violated 250, victims, increase by 4 levels; or to continue active operations; or (v)was regulations issued by the Securities and (C) involved 250 or more victims, placed in substantial jeopardy of any of Exchange Commission by fraudulently increase by 6 levels.’’.] subdivisions (i) through (iv) of this note. influencing an independent audit of the Section 2B1.1(b)(12) is amended by (B) Enhancement for Endangering the company’s financial statements for the striking subdivision (B) and inserting Solvency or Financial Security of a purposes of rendering such financial the following: Publicly Held Company [or An statements materially misleading, even ‘‘(B) the offense (i) substantially Organization with more than if the officer is convicted only of wire jeopardized the safety and soundness of [200][1000][5000] Employees] under fraud. a financial institution; or (ii) Subsection (b)(12)(B)(ii).— (C) Nonapplicability of § 3B1.3 (Abuse substantially endangered the solvency (i) Definitions.—For purposes of this of Position of Trust or Use of Special or financial security of an organization subsection, ‘organization’ has the Skill).—If subsection (b)(13) applies, do that, at the time of the offense [(I)] was meaning given that term in Application not apply § 3B1.3.’’. a publicly traded company[; or (II) had Note 1 of § 8A1.1 (Applicability of The Commentary to § 2B1.1 captioned [200][1,000][5,000] or more employees], Chapter Eight). ‘‘Application Notes’’ is amended in increase by 4 levels.’’. (ii) Application.—An offense shall be Note 16, as redesignated by this Section 2B1.1(b) is amended by considered to have substantially amendment, in subdivision (A) by adding at the end the following: endangered the solvency or financial striking subdivision (v). ‘‘(13) If the offense involved a security of an organization that was a [Option 2 for Substantial Number of violation of securities law and, at the publicly traded company[ or that had Victims: time of the offense, the defendant was more than [200][1000][5000] employees] The Commentary to § 2B1.1 captioned [(i)] an officer or a director of a publicly if, as a consequence of the offense, the ‘‘Application Notes’’ is amended in traded company[; or (ii) a registered organization (I) became insolvent; (II) Note 16, as redesignated by this broker or dealer], increase by 2 levels.’’. filed for bankruptcy under Chapters 7, amendment, in subdivision (A) by The Commentary to § 2B1.1 caption 11, or 13 of the Bankruptcy Code (title inserting the following: ‘‘Statutory Provisions’’ is amended by 11 of the United States Code); (III) ‘‘(v) The offense involved inserting ‘‘1348, 1350,’’ after ‘‘1341– suffered a substantial reduction in the substantially more than 50 victims.’’.] 1344,’’. value of [its equity securities][a class of Section 2E5.3 is amended in the The Commentary to § 2B1.1 captioned securities registered under section 12 of heading by adding at the end ‘‘; ‘‘Application Notes’’ is amended in the Securities Exchange Act of 1934 (15 Destruction and Failure to Maintain Note 1 by inserting after ‘‘Secretary of U.S.C. § 78l)] or the value of its Corporate Audit Records’’. the Interior.’’ the following new employee retirement accounts; (IV) Section 2E5.3 is amended by striking paragraph: substantially reduced its workforce; (V) subsection (a)(2) and inserting the ‘‘ ‘Publicly traded company’ means an substantially reduced its employee following: issuer (A) with a class of securities pension benefits; (VI) was so depleted of ‘‘(2) If the offense was committed to registered under section 12 of the its assets as to be forced to merge with facilitate or conceal (A) an offense Securities Exchange Act of 1934 (15 another company in order to continue involving theft, fraud, or embezzlement; U.S.C. § 78l); or (B) that is required to active operations; or (VII) was placed in (B) an offense involving a bribe or a file reports under section 15(d) of the substantial endangerment of any of gratuity; or (C) an obstruction of justice Securities Exchange Act of 1934 (15 subdivisions (I) through (VI) of this offense, apply § 2B1.1 (Theft, Fraud and U.S.C. § 78o(d)). ‘Issuer’ has the note. [‘Equity securities’ has the Property Destruction), § 2E5.1 (Offering, meaning given that term in section 3 of meaning given that term in section 3 of Accepting, or Soliciting a Bribe or the Securities Exchange Act of 1934 (15 Securities Exchange Act of 1934 (15 Gratuity Affecting the Operation of an U.S.C. § 78c).’’. U.S.C. § 78c).] Employee Welfare or Pension Benefit The Commentary to § 2B1.1 captioned 11. Application of Subsection Plan; Prohibited Payments or Lending of ‘‘Application Notes’’ is amended by (b)(13).— Money by Employer or Agent to redesignating Notes 11 through 15 as (A) Definitions.—For purposes of this Employees, Representatives, or Labor Notes 12 through 16, respectively. subsection: Organizations), or § 2J1.2 (Perjury or The Commentary to § 2B1.1 captioned ‘Registered broker or dealer’ has the Subornation of Perjury; Bribery of a ‘‘Application Notes’’ is amended by meaning given that term in section 3 of Witness), as appropriate.’’. striking Note 10 and inserting the the Securities Exchange Act of 1934 (15 The Commentary to § 2E5.3 captioned following: U.S.C. § 78c). ‘‘Statutory Provisions’’ is amended by ‘‘10. Application of Subsection ‘Securities law’ (i) means 18 U.S.C. inserting ‘‘§ ’’ before ‘‘1027’’; and by (b)(12)(B).— §§ 1348, 1350, and the provisions of law inserting ‘‘, 1520’’ after ‘‘1027’’. (A) Enhancement for Substantially referred to in section 3(a)(47) of the Section 2J1.2(b) is amended by adding Jeopardizing the Safety and Soundness Securities Exchange Act of 1934 (15 at the end the following: of a Financial Institution under U.S.C. § 78c(a)(47)); and (ii) includes the ‘‘(3) If the offense (A) involved the Subsection (b)(12)(B)(i).—For purposes rules, regulations, and orders issued by destruction, alteration, or fabrication of VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 71002 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices a substantial amount of evidence; (B) security law? Such a case may cause § 2B1.1 should be amended to provide involved the selection of especially similar harm to the organization, its further guidance as to how to calculate probative or essential evidence to shareholders, and employees even loss in complex white collar crime destroy or alter; or (C) was otherwise though the organization is not a publicly cases. For example, should loss in such extensive in scope, planning, or traded company and the offense cases be based on a change in the preparation, increase by [2] levels.’’. typically would not undermine public market capitalization of a corporation, a The Commentary to § 2J1.2 captioned confidence in the securities market. The change in the value of corporate assets, ‘‘Statutory Provisions’’ is amended by Commission further requests comment or some other economic effect? inserting ‘‘, 1519’’ after ‘‘1516’’. regarding whether, as an alternative to 4. The current loss table in § 2B1.1 Appendix A (Statutory Index) is the proposed enhancement, it should provides sentencing enhancements in amended by inserting after the line provide a series of enhancements, two level increments up to a maximum referenced to ‘‘18 U.S.C. § 1347’’ the possibly to apply cumulatively, to of 26 levels for offenses in which the following new lines: address separate aspects of these loss exceeded $100,000,000. The ‘‘18 U.S.C. § 1348 2B1.1 directives. Specifically, should the proposed amendment provides two 18 U.S.C. § 1349 2X1.1 Commission provide enhancements in additional increases to the table: an 18 U.S.C. § 1350 2B1.1’’. § 2B1.1 that would apply if (A) the enhancement of 28 levels for offenses in Appendix A (Statutory Index) is defendant used his or her position as which the loss exceeded $200,000,000, amended in the line referenced to 18 officer or director of a publicly traded and an enhancement of 30 levels for U.S.C. § 1512(c) by striking ‘‘(c)’’ and company in furtherance of a fraud or offenses in which the loss exceeded inserting ‘‘(d)’’. some other corporate crime; (B) the $400,000,000. This proposed addition to Appendix A (Statutory Index) is officer or director of a publicly traded the loss table would address amended by inserting after the line company worked to defeat or congressional concern expressed in referenced to 18 U.S.C. § 1512(b) the compromise internal corporate controls, sections 805, 905, and 1104 of the following new line: independent audits, or the oversight by Sarbanes-Oxley Act regarding ‘‘18 U.S.C. § 1512(c) 2J1.2’’. a corporate governing board; or (C) an particularly extensive and serious fraud officer or director derived more than offenses and would more fully Appendix A (Statutory Index) is $1,000,000 in personal gain from effectuate increases in statutory amended by inserting after the line unlawful activity? If so, should the maximum penalties, for example, the referenced to 18 U.S.C. § 1518 the Commission also provide minimum increase in the statutory maximum following lines: offense levels for any such penalties for wire fraud and mail fraud ‘‘18 U.S.C. § 1519 2J1.2 enhancements? What would be an offenses from five to 20 years (section 18 U.S.C. § 1520 2E5.3’’. appropriate minimum offense level for 903 of the Act). Should the Commission Issues for Comment such enhancements? modify the loss table more extensively 2. The proposed amendment expands to provide increased offenses levels at 1. The Sarbanes-Oxley Act of 2002 the scope of § 2B1.1(b)(12)(B) to apply to lower loss amounts? Commission data requires the Commission to consider offenses that substantially endanger the indicate that approximately one-third of providing an enhancement for officers solvency or financial security of a fraud offenses involve loss amounts less or directors of publicly traded publicly traded company. This than $20,000, approximately one-third companies who commit fraud and proposed enhancement is in response to involve loss amounts between $20,000 related offenses. The Act also requires directives pertaining to securities and and $120,000, and approximately one- the Commission to ensure that the accounting fraud offenses and fraud third involve loss amounts greater than enhancements relating to obstruction of offenses that endanger the solvency or $120,000. For instance, should the justice are adequate in cases in which financial security of a substantial Commission modify the loss table to the offense involved an abuse of number of victims. The proposed result in a Zone D offense level position of trust or use of a special skill. corresponding application note sets (assuming a two level reduction for In response to these directives, the forth instances of when an offense shall acceptance of responsibility) for proposed amendment provides an be considered to have endangered the offenses involving more than $50,000? enhancement in § 2B1.1 (Larceny, solvency or financial security of a Similarly, should the Commission Embezzlement, and Other Forms of publicly traded company. The note modify the loss table to restrict Zone A Theft; Offenses Involving Stolen includes references to insolvency, filing offense levels (which provide sentences Property; Property Damage or for bankruptcy, substantially reducing of straight probation) to offenses Destruction; Fraud and Deceit; Forgery; the value of the company’s stock, and involving loss amounts of $10,000 or Offenses Involving Altered or substantially reducing the company’s less (assuming a two level reduction for Counterfeit Instruments Other than workforce, any one of which would acceptance of responsibility)? If any Counterfeit Bearer Obligations of the require application of the new changes are made to the loss table in United States) specifically targeting enhancement upon a finding of its § 2B1.1, should the Commission also officers and directors who violate presence. The Commission requests make similar changes to the tax loss securities law, including violations of comment regarding whether the note table in § 2T4.1 (Tax Table) in order to the rules and regulations issues by the alternatively should provide that the maintain the long standing relationship Securities and Exchange Commission. references are a non-exhaustive list that between the two loss tables? In addition, The Commission requests comment the court may consider in determining the Commission requests comment regarding whether it also should whether to apply § 2B1.1(b)(12)(B). The regarding whether the base offense level provide a minimum offense level for Commission also requests comment in § 2B1.1 should be increased from this proposed enhancement, and if so, regarding whether additional factors level 6. what an appropriate offense level would should be included in the list of 5. In response to the directives in the be. Additionally, should this proposed instances that could trigger application Sarbanes-Oxley Act pertaining to enhancement apply to cases in which an of the enhancement. obstruction of justice offenses, the officer or director of a large, non-public 3. The Commission requests comment proposed amendment sets forth a new organization violates any provision of regarding whether the loss definition in two level enhancement in § 2J1.2 VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 71003 (Obstruction of Justice) that applies if gives the Commission emergency commits a violation of any provision of the offense (A) involved the destruction, authority to promulgate amendments to this Act which involves the making, alteration, or fabrication of a substantial implement the Act not later than receiving, or reporting of any amount of evidence; (B) involved the February 3, 2003. Specifically, section contribution, donation, or expenditure selection of especially probative or 314(a) and (b) state: (i) aggregating $25,000 or more during a essential evidence to destroy or alter; or ‘‘(a) IN GENERAL.—The United States calendar year shall be fined under title (C) was otherwise extensive in scope, Sentencing Commission shall— 18, United States Code, or imprisoned planning, or preparation. The (1) promulgate a guideline, or amend for not more than 5 years, or both; or (ii) Commission requests comment an existing guideline under section 994 aggregating $2,000 or more (but less regarding whether, in addition to this of title 28, United States Code, in than $25,000) during a calendar year enhancement, it should provide an accordance with paragraph (2), for shall be fined under such title, enhancement that is based on the penalties for violations of the Federal imprisoned for not more than 1 year, or number of participants recruited to Campaign Act of 1971 and related both.’’. (Before amendment by the Act, commit the obstruction of justice election laws; and section 309(d)(1)(A) of the FECA offense. Additionally, should the (2) submit to Congress an explanation provided for a maximum term of Commission provide an enhancement of any guidelines promulgated under imprisonment of one year, or a fine, or for obstruction of justice offenses paragraph (1) and any legislative or both.) committed through the use of administrative recommendations The major violations of the FECA to sophisticated means, perhaps in lieu of regarding enforcement of the Federal which section 309(d)(1)(A) applies are: the proposed subdivision (C) prong, and Campaign Act of 1971 and related if so, what characteristics would be election laws. (A) The Ban on Soft Money common to such an offense? Finally, (b) CONSIDERATIONS.—The Section 323 of the FECA (2 U.S.C. given congressional concern with Commission shall provide guidelines § 441i) prohibits national political party obstruction of justice offenses, should under subsection (a) taking into account committees (including senatorial and the Commission increase the base the following considerations: congressional campaign committees) offense level in § 2J1.2 from level 12 to (1) Ensure that the sentencing from accepting soft money from any level 14? guidelines and policy statements reflect person (including an individual) after 6. Part Three of the proposed the serious nature of such violations and November 6, 2002. amendment addresses the emergency the need for aggressive and appropriate (B) Restrictions on Hard Money amendment directives in the Sarbanes- law enforcement action to prevent such Contributions Oxley Act pertaining to the Chapter violations. Two guidelines for obstruction of justice (2) Provide a sentencing enhancement The FECA limits the amount of hard offenses. Specifically, the proposed for any person convicted of such money that may be contributed to a amendment would provide a new violation if such violations involves— Federal campaign. The FECA limits the enhancement in § 2J1.2 addressing the (A) a contribution, donation, or amount of hard money that persons directive relating to the destruction of expenditure from a foreign source; other than multicandidate political evidence and offenses that are otherwise (B) a large number of illegal committees may contribute as follows: extensive in scope, planning, or transactions; (i) The contribution to a candidate for preparation. Currently, defendants (C) a large aggregate amount of illegal Federal office may not exceed $2,000 sentenced under § 2J1.2 or § 2J1.3 contributions, donations, or per election. (The limit used to be (Perjury or Subornation of Perjury; expenditures; $1,000; see section 315(a)(1)(A) of the Bribery of Witness) are sentenced (D) the receipt or disbursement of FECA, as amended by section 307(a)(1) proportionately because these governmental funds; and of the Act.) guidelines have the same base offense (E) an intent to achieve a benefit from (ii) The contribution to a national level and provide substantially parallel the Federal Government. party committee may not exceed enhancements. The Commission (3) Assure reasonable consistency $25,000 per calendar year. (The limit requests comment regarding whether, in with other relevant directives and used to be $20,000; see section light of the proposed changes to § 2J1.2, guidelines of the Commission. 315(a)(1)(B) of the FECA, as amended by modifications also should be made to (4) Account for aggravating or section 307(a)(2) of the Act.) § 2J1.3 in order to maintain mitigating circumstances that might (iii) The contribution to any other proportionate sentencing between these justify exceptions, including political committee, including a two guidelines. For example, should the circumstances for which the sentencing political action committee (PAC), may Commission increase the base offense guidelines currently provide sentencing not exceed $5,000 per calendar year. level in § 2J1.3 or increase the enhancements. (No change in the former law; see magnitude of the enhancement of the (5) Assure the guidelines adequately section 315(a)(1)(C) of the FECA.) current specific offense characteristics? meet the purposes of sentencing under (iv) The contribution to a State or Any such amendment to § 2J1.3 would section 3553(a)(2) of title 18, United local political party may not exceed be made when the Commission re- States Code.’’. $10,000 per calendar year. (The limit promulgates as a permanent amendment Section 309(d)(1) of the FECA sets used to be $5,000; see section any emergency amendment made to forth the Act’s criminal penalty 315(a)(1)(D) of the FECA, as amended by § 2J1.2. provisions as follows: section 102(3) of the Act.) The FECA limits the amount of hard 2. Campaign Finance (1) Violations of the FECA as Penalized money that multicandidate political Synopsis of Proposed Amendment: under Section 309(d)(1)(A) committees other than individuals may This proposed amendment responds to Section 309(d)(1)(A) is the main contribute as follows: the Bipartisan Campaign Reform Act of penalty provision of the FECA (2 U.S.C. (i) The contribution to a candidate for 2002, Pub. L. 107–155 (the ‘‘Act’’). The § 437g(d)(1)(A)). As amended by section Federal office may not exceed $5,000 most pertinent provision of the Act, for 312 of the Act, it states that ‘‘[a]ny per election. (See section 315(a)(2)(A) of the Commission, is section 314, which person who knowingly and willfully the FECA.) VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 71004 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices (ii) The contribution to a national office; (B) is made within 60 days before himself or any committee or party committee may not exceed a general election or 30 days before a organization under his control as $15,000 per calendar year. (See section primary election. The Communication speaking or writing or otherwise acting 315(a)(2)(B) of the FECA.) must be targeted to the pertinent for or on behalf of any other candidate (iii) The contribution to any other electorate. (See 2 U.S.C. § 434(f)(3)(c).) or political party or employee or agent political committee, including a thereof on a matter which is damaging (2) Violations of Section 316(b) political action committee (PAC), may to such other candidate or political not exceed $5,000 per calendar year. Section 309(d)(1)(B) of the FECA party or employee or agent thereof; or (No change in the former law; see states that ‘‘[i]n the case of a knowing (2) willfully and knowingly participate section 315(a)(2)(C) of the FECA.) and willful violation of section in or conspire to participate in any plan, (iv) The contribution to a State or 316(b)(3), the penalties set forth in this scheme, or design to violate paragraph local political party may not exceed subsection shall apply to a violation (1).’’ $5,000 per calendar year. (See section involving an amount aggregating $250 Section 322(b) states that ‘‘[n]o person 315(a)(2)(C) of the FECA.) or more during a calendar year. Such shall (1) fraudulently misrepresent the violation of section 316(b)(3) may person as speaking, writing, or (C) The Ban on Contributions and incorporate a violation of section 317(b), otherwise acting for or on behalf of any Donations by Foreign Nationals 320, or 321. candidate or political party or employee Section 319 of the FECA (2 U.S.C. Section 316(b)(3) of the FECA (2 or agent thereof for the purpose of § 441e) makes it ‘‘unlawful for (1) a U.S.C. § 441b(b)(3)) makes it unlawful soliciting contributions or donations; or foreign national, directly or indirectly, for a national bank, any corporation (2) willfully and knowingly participate to make (A) a contribution or donation organized by authority of any law of in or conspire to participate in any plan, of money or other thing of value, or to Congress, or any labor union (A) to use scheme, or design to violate paragraph make an express or implied promise to a political fund to make a political (1).’’ make a contribution or donation, in contribution or expenditure from money (4) Conduit Contributions under Section connection with a Federal, State, or or anything of value that was secured by 320 local election; (B) a contribution or physical force, job discrimination, donation to a committee of a political financial reprisals (or the threat thereof), Section 309(d)(1)(D) of the FECA party; or (C) an expenditure, or from dues, fees, or other money states that ‘‘[a]ny person who knowingly independent expenditure, or required as a condition of membership and willfully commits a violation of disbursement for an electioneering in the labor organization or as a section 320 involving an amount communication (within the meaning of condition of employment; (B) who aggregating more than $10,000 during a section 304(f)(3)); or (2) a person to solicits an employee for contribution to calendar year shall be (i) imprisoned for solicit, accept, or receive a contribution a political fund to fail to inform the not more than 2 years if the amount is or donation described in subparagraph employee of the purposes of the fund at less than $25,000 (and subject to (A) or (B) of paragraph (1) from a foreign the time of the solicitation; and (B) who imprisonment under subparagraph (A) if national.’’. solicits an employee for contribution to the amount is $25,000 or more); (ii) ‘‘Foreign national’’ is broadly defined a political fund to fail to inform the fined not less than 300 percent of the to mean (1) a foreign principal, as employee of his right to refuse to amount of the violation and not more defined in the Foreign Agent contribute without reprisal. than the greater of (I) $50,000; or (II) Registration Act of 1938 (22 U.S.C. The sections which may incorporate 1,000 percent of the amount involved in § 611(b)) or (2) an individual who is not violations of section 316(b)(3) of the the violation; or (iii) both imprisoned a citizen or national of the United States FECA are section 317(b), which under clause (i) and fined under clause or who is not lawfully admitted for prohibits government contractors from (ii).’’ permanent residence. making contributions of currency in Section 320 of the FECA (2 U.S.C. excess of $100 for any candidate for § 441f) states that ‘‘[n]o person shall (D) Restrictions on Electioneering Federal office, section 320 which make a contribution in the name of Communications prohibits a person from making a another person or knowingly permit his Section 304(f) of the FECA, as added contribution in the name of another or name to be used to effect such a by section 201 of the Act, requires any accepting a contribution so made, and contribution, and no person shall person who makes a disbursement for section 321, which prohibits any person knowingly accept a contribution made the direct costs of producing and airing from making contributions of currency by one person in the name of another electioneering communications in excess of $100 for any candidate for person.’’ exceeding $10,000 in a calendar year to Federal office. In addition to changes made to the file a disclosure statement to the Federal FECA, section 302 of the Act amended Election Commission. (3) Fraudulent Misrepresentations section 607 of title 18, United States Section 316 of the FECA (2 U.S.C. Under Section 322 Code, to make it ‘‘unlawful for any § 441b) makes it unlawful for any Section 309(d)(1)(C) of the FECA person to solicit or receive a donation of national bank, any corporation states that ‘‘[i]n the case of a knowing money or other thing of value in organized by authority of any Federal and willful violation of section 322, the connection with a Federal, State, or law, or any labor union to make a penalties set forth in this subsection local election from a person who is contribution or expenditure in shall apply without regard to whether located in a room or building occupied connection with any federal election to the making, receiving, or reporting of a in the discharge of official duties by an any federal political office, or a contribution or expenditure of $1,000 or officer or employee of the United States. disbursement, using non-PAC money, more is involved.’’ It shall be unlawful for an individual for an ‘‘electioneering communication’’. Section 322(a) of the FECA (2 U.S.C. who is an officer or employee of the An electioneering communication is 441h) states that ‘‘[n]o person who is a Federal Government, including the any broadcast, cable, or satellite candidate for Federal office or an President, Vice President, and Members communication which (A) refers to a employee or agent of such a candidate of Congress, to solicit or receive a clearly identified candidate for Federal shall (1) fraudulently misrepresent donation of money or other things of VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 71005 value in connection with a Federal, interrelatedness of these two directives, and before completion of or negotiation State, or local election, while in any one option is to address these two for the contract, to make or solicit a room or building occupied in the considerations by providing a specific contribution of money or anything of discharge of official duties by an officer offense characteristic, at subsection value to a political party, committee, or or employee of the United States, from (b)(1), that uses the fraud loss table in candidate for public office or to any any person.’’ The penalty is a fine of not § 2B1.1 to incrementally increase the person for a political purpose. (This more than $5,000, not more than 3 years offense level according to the dollar provision does not prohibit, however, or imprisonment, or both. amount of the illegal transactions. This the establishment of a segregated In order to implement the directive in approach would foster proportionality account to be used for political the Act, this proposed amendment with related guidelines, notably the purposes.) The concern behind this expands the scope of Chapter Two, Part fraud guideline and the public provision of the FECA, therefore, is to C (Offenses Involving Public Officials) corruption guidelines (which also prevent the use of Federal funds for by providing within that Part a new reference the fraud loss table), and political purposes. The same concern guideline for offenses under the FECA would provide incremental, rather than pertains to State and local funds as well. and related offenses. A new guideline, a flat, punishment according to the Fourth, the proposed amendment rather than amendment of an existing dollar amount involved in the offense. provides a number of options for guideline, seems most appropriate to The proposed amendment provides responding to the directive to provide implement the directive. Currently there commentary to explain that ‘‘illegal an enhancement for cases involving an exists no guideline which already transactions’’ include only those intent to achieve a benefit from the incorporates the elements of the FECA amounts that exceed the amount a Federal government. One option is to and related offenses, although the fraud person may legitimately contribute, incorporate this factor into the base guideline in particular (§ 2B1.1) and the solicit, or expend. The proposed offense level. Examination of available public corruption guidelines to a lesser amendment also provides references in Commission data reveals that this factor degree (Chapter Two, Part C) provide the definition to the FECA’s definitions is present in the majority of illegal some overlap in the elements of the of ‘‘contribution’’ and ‘‘expenditure’’. campaign finance cases and thus lies offense and aggravating conduct. In Another option, provided in the within the heartland of these cases. addition, the enhancements required to proposed amendment, is to provide Another option presented in the enhancements for both the number of be added by the directive in the Act proposed amendment defines this factor illegal transactions and the dollar would fit nicely into a guideline as the intent to influence a Federal amount of the transactions. A separate devoted solely to campaign finance public official to perform an official act enhancement for the number of illegal offenses but could prove unwieldy if in return for the contribution, donation, transactions takes into account the added to the fraud or public corruption or expenditure. A third option is also aspect of sophistication and planning guidelines, which cover so many other presented that limits the intent to attendant to multiple violations. non-campaign finance offenses. achieve a Federal benefit to the intent to The proposed amendment provides Second, the proposed amendment achieve a financial benefit. for a base offense level of level [6–10]. provides an enhancement if the offense The statutorily authorized maximum involved a contribution, donation, or The amendment also proposes to add term of imprisonment for the conduct expenditure from a foreign source. In an enhancement if the contribution, covered by the proposed guideline was implementing this enhancement, the donation, or expenditure was obtained raised by the Act from one year for all proposed amendment adopts the through intimidation, threat of harm, such offenses to two years for some expansive definition of ‘‘foreign including pecuniary harm, or coercion. offenses and five years for others. The national’’ provided in section 319 of the The proposed amendment also base offense level is set at level [6–10] FECA, and provides for a greater amends the guideline on fines for in recognition of the relative similarity enhancement if the defendant knew that individual defendants, § 5E1.2, to set of these offenses to fraud offenses the source of the funds was a foreign forth the fine provisions unique to covered by § 2B1.1 and public government. FECA and to provide two upward corruption offenses covered by Chapter Third, the proposed amendment departure provisions related to certain Two, Part C. A base offense level of provides an enhancement if the offense FECA fines. This part of the amendment level [6–10] both insures proportionality involved a donation, contribution, or also provides that the defendant’s with relatively similar offenses and expenditure of governmental funds. The participation in a conciliation permits various sentencing proposed amendment defines agreement with the Federal Election enhancements directed to be added by ‘‘governmental funds’’ to mean any Commission pursuant to section 309 of the Act to operate well. Federal, State, or local funds. It is the FECA may be a potentially The proposed amendment also creates anticipated that this enhancement will legitimate factor for the court to a number of specific offense apply in situations such as using consider in evaluating where to characteristics in response to the governmental funds awarded in a sentence an offender within the directive in section 314(b) of the Act. contract to make a donation or presumptive fine guideline range. An First, the directive requires the contribution. The FECA itself addresses issue for comment is provided regarding Commission to provide an enhancement this type of situation but in very few whether, in the alternative, a downward if the offense involved a large aggregate places. For example, section 317 of the adjustment should apply in cases amount of illegal contributions, FECA, 2 U.S.C. § 441c, prohibits any involving conciliation agreements, or donations, or expenditures and to person who enters into a contract with alternatively, whether the Commission provide an enhancement for a large the United States for the rendition of should discourage downward number of illegal transactions. These services, the provision of materials, departures in such cases. two directives are fundamentally supplies, or equipment, or the selling of The proposed amendment provides interrelated because the amount of the any land or property to the United commentary that counts under this illegal contributions necessarily tends to States, if the payment from the United proposed guideline are groupable under increase as the number of illegal States is to be made in whole or in part subsection (d) of § 3D1.2 (Groups of transactions increases. Because of the from funds appropriated from Congress Closely Related Counts). Finally, the VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 71006 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices Statutory Index is amended to intimidation, threat of pecuniary or covered by this guideline are grouped incorporate these offenses. other harm, or coercion, increase by [2] together under subsection (d) of § 3D1.2 [4] levels. (Groups of Closely Related Counts). Proposed Amendment (c) Cross Reference 4. Departure Provisions.—In a case in Chapter Two, Part C is amended in (1) If the offense involved the which the value of the illegal the heading by adding at the end ‘‘AND fraudulent misrepresentation of transactions does not adequately reflect VIOLATIONS OF FEDERAL ELECTION authority to speak or otherwise act for the seriousness of the offense, an CAMPAIGN LAWS’’. a candidate, political party, or employee upward departure may be warranted. Chapter Two, Part C is amended by or agent thereof for the purpose of For example, a relatively small striking the introductory commentary in soliciting a donation or contribution, contribution in violation of the Federal its entirety. apply § 2B1.1 (Theft, Fraud, and Election Campaign Act of 1971 may be Chapter Two, Part C is amended by Property Destruction), if the resulting made in exchange for favorable adding at the end the following new offense level is greater than the offense consideration in the award of a guideline and accompanying level determined under this guideline. substantial Federal government commentary: contract. Depending on the facts of such Commentary ‘‘§ 2C1.8. Making, Receiving, or Failing a case, an upward departure may be Statutory Provisions: 2 U.S.C. to Report a Contribution, Donation, or warranted. §§ 437g(d)(1), 439a, 441a, 441a–1, 441b, Expenditure in Violation of the Federal In a case in which the defendant’s 441c, 441d, 441e, 441f, 441g, 441h(a), Election Campaign Act; Fraudulently conduct was part of a systematic or 441i, 441k; 18 U.S.C. § 607. For Misrepresenting Campaign Authority; pervasive corruption of a governmental additional provision(s), see Statutory Soliciting or Receiving a Donation in function, process, or office that may Index (Appendix A). Connection with an Election While on cause loss of public confidence in Certain Federal Property Application Notes government, an upward departure may be warranted. (a) Base Offense Level: [6][7][8][9][10] 1. Definitions.—For purposes of this Background: This guideline covers (b) Specific Offense Characteristics guideline: violations of the Federal Election (1) If the value of the illegal ‘‘Foreign government’’ means the Campaign Act of 1971 and related transactions (i) exceeded $2,000 but did government of a foreign country, federal election laws, such as 18 U.S.C. not exceed $5,000, increase by 1 level; regardless of whether the United States § 607.’’. or (ii) exceeded $5,000, increase by the formally has recognized that country. Section 3D1.2(d) is amended by number of levels from the table in ‘‘Foreign national’’ has the meaning inserting ‘‘, 2C1.8’’ after ‘‘2C1.7’’. § 2B1.1 (Theft, Property Destruction, given that term in section 319(b) of the The Commentary to § 5E1.2 captioned and Fraud) corresponding to that Federal Election Campaign Act of 1971 ‘‘Application Notes’’ is amended in amount. (2 U.S.C. § 441e(b)). Note 4 by adding at the end the (2) (Apply the greater) If the offense ‘‘Governmental funds’’ means money, following: involved a contribution, donation, or assets, or property of a Federal, State, or ‘‘[If the count of conviction involves a expenditure, or an express or implied local government[, including a violation of the Federal Election promise to make a contribution, governmental branch, subdivision, Campaign Act under 2 U.S.C. donation, or expenditure— department, agency, or other § 437g(d)(1)(A), an upward departure (A) by a foreign national, increase by component.] to the maximum fine permitted under [2][4] levels; or ‘‘Illegal transaction’’ means (A) any 18 U.S.C. § 3571 may be warranted. If (B) by a foreign government, and the contribution, donation, solicitation, or the count of conviction involves a defendant knew that the source of the expenditure of money or anything of violation of the Federal Election contribution, donation, or expenditure value made in excess of the amount of Campaign Act under 2 U.S.C. § 441f was a foreign government, increase by such contribution, solicitation, or punishable under 2 U.S.C. [4][8] levels. expenditure that may be made under the § 437g(d)(1)(D), an upward departure (3) If the offense involved a Federal Election Campaign Act of 1971, to the maximum fine permitted under contribution, donation, or expenditure 2 U.S.C. § 431 et seq; and (B) in the case that subsection may be warranted.]’’. of governmental funds, increase by of a violation of 18 U.S.C. § 607, any [2][4] levels. solicitation or receipt of money or The Commentary to § 5E1.2 captioned (4) If the offense involved an intent anything of value under that section. ‘‘Application Notes’’ is amended in the [Option One: to influence a Federal The terms ‘contribution’ and second sentence of Note 5 by striking public official to perform an official ‘expenditure’ have the meaning given ‘‘and’’ after ‘‘Control Act;’’ and by act][Option Two: to obtain a financial those terms in section 301(8) and (9) of inserting before the period at the end Federal benefit] in return for the the Federal Election Campaign Act of the following: contribution, donation, or expenditure, 1971 (2 U.S.C. § 431(8) and (9)), ‘‘and 2 U.S.C. § 437g(d)(1)(D), which increase by [2][4] levels. respectively. authorizes, for violations of the [(5) If the offense involved more than 2. Application of Abuse of Position of Federal Election Campaign Act under five illegal transactions in a 12-month Trust Adjustment.—If the defendant is 2 U.S.C. § 441f, a fine up to the greater period, increase as follows: an elected official, a candidate for of $50,000 or 1,000 percent of the elected office, or acting on behalf of, or amount of the violation, and which Increase in requires, in the case of such a Number of illegal transactions level employed by, an elected official or candidate for elected office, an violation, a minimum fine of not less (A) 6–15 ...... add [1] adjustment from § 3B1.3 (Abuse of than 300 percent of the amount of the (B) 16–30 ...... add [2] Position of Trust or Use of Special Skill) violation. (C) 31 or more ...... add [3].] may apply.] There may be cases in which the 3. Multiple Counts.—For purposes of defendant has entered into a (6) If the offense involved a donation Chapter Three, Part D (Multiple Counts), conciliation agreement with the Federal or contribution obtained through multiple counts involving offenses Election Commission under section 309 VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 71007 of the Federal Election Campaign Act of DEPARTMENT OF STATE the Industry Sector Advisory Committee 1971 in order to correct or prevent a on Textiles and Apparel (ISAC–15), [Public Notice 4193] violation of such Act by the defendant. scheduled for December 10, 2002, from The existence of a conciliation Advisory Commission on Public 10 a.m. to 12 p.m. The meeting was to agreement between the defendant and Diplomacy; Notice of Meeting be open to the public from 10 a.m. to 12 Federal Election Commission may be an p.m. However, the meeting has been appropriate factor in determining at The Department of State announces cancelled. the meeting of the U.S. Advisory what point within the applicable fine FOR FURTHER INFORMATION CONTACT: Commission on Public Diplomacy on guideline range to sentence the Maria E’Andrear, of the Department of Thursday, December 12, 2002, in Room defendant.’’. Commerce, (202) 482–4792. Appendix A (Statutory Index) is 600, 301 4th St., SW., Washington, DC amended by inserting before the line from 8:30 a.m. to 11 a.m. Christopher A. Padilla, referenced to 7 U.S.C. § 6 the following The Commission, reauthorized Assistant U.S. Trade Representative, for new lines: pursuant to Public Law 106–113 (H.R. Intergovernmental Affairs and Public Liaison. ‘‘2 U.S.C. § 437g(d)(1) 2C1.8 3194, Consolidated Appropriations Act, [FR Doc. 02–30056 Filed 11–26–02; 8:45 am] 2 U.S.C. § 439a 2C1.8 2000), will have an organizational BILLING CODE 3190–01–M 2 U.S.C. § 441a 2C1.8 meeting as well as discuss potential 2 U.S.C. § 441a–1 2C1.8 areas of examination for the remainder 2 U.S.C. § 441b 2C1.8 of the Commissioners’ terms of office. OFFICE OF THE UNITED STATES 2 U.S.C. § 441c 2C1.8 Members of the general public may TRADE REPRESENTATIVE 2 U.S.C. § 441d 2C1.8 attend the meeting, though attendance of public members will be limited to the Notice of Proposed Measure and 2 U.S.C. § 441e 2C1.8 Opportunity for Public Comment 2 U.S.C. § 441f 2C1.8 seating available. Access to the building is controlled, and individual building Pursuant to Section 421 of the Trade 2 U.S.C. § 441g 2C1.8 Act of 1974: Pedestal Actuators From 2 U.S.C. § 441h(a) 2C1.8 passes are required for all attendees. The U.S. Advisory Commission on the People’s Republic of China 2 U.S.C. § 441i 2C1.8 Public Diplomacy is a bipartisan 2 U.S.C. § 441k 2C1.8’’. AGENCY: Office of the United States Presidentially appointed panel created Trade Representative. Appendix A (Statutory Index) is by Congress in 1948 to provide amended by inserting after the line oversight of U.S. Government activities ACTION: Notice of proposed measure; referenced to 18 U.S.C. § 597 the intended to understand, inform and request for comments. following new lines: influence foreign publics. The SUMMARY: The United States ‘‘18 U.S.C. § 607 2C1.8’’. Commission reports its findings and International Trade Commission (ITC) Issues for Comment: There may be recommendations to the President, the has determined, pursuant to section cases in which the defendant has Congress and the Secretary of State and 421(b)(1) of the Trade Act of 1974, as entered into a conciliation agreement the American people. Current amended (the Trade Act)(19 U.S.C. with the Federal Election Commission commission members include Harold 2451(b)(1)), that pedestal actuators 1 under section 309 of the Federal Pachios of Maine, who is the chairman; from the People’s Republic of China Election Campaign Act of 1971 in order Charles Dolan of Virginia, who is the (China) are being imported into the to correct or prevent a violation of such vice chairman; Penne Percy Korth of United States in such increased Act by the defendant. For such cases, Washington, DC and Maria Elena quantities or under such conditions as the proposed amendment provides that Torano of Florida. to cause market disruption to the such an agreement may be an For more information, please contact domestic producers of like or directly appropriate factor in determining the Matt Lauer at (202) 619–4457. competitive products. Pursuant to amount of fine that might be imposed. Dated: November 20, 2002. section 421(h)(1) of the Trade Act, the The Commission requests comment Matthew Lauer, United States Trade Representative regarding whether the existence of such Executive Director, U.S. Advisory (USTR) is publishing notice of proposed a conciliation agreement between the Commission on Public Diplomacy, restrictions with respect to imports of defendant and Federal Election Department of State. pedestal actuators from China. USTR Commission should be the basis for a [FR Doc. 02–30114 Filed 11–26–02; 8:45 am] invites domestic producers, importers, downward adjustment under the BILLING CODE 4710–11–P exporters, and other interested parties to proposed guideline (and if so, what submit their views and evidence on the should the extent of the adjustment be), or, alternatively, should the OFFICE OF THE UNITED STATES 1 For purposes of the ITC investigation, pedestal Commission discourage downward TRADE REPRESENTATIVE actuators consist of electromechanical linear departures in cases involving actuators, imported with or without motors, or as part of scooter subassemblies, all the foregoing used conciliation agreements so as to limit Notice of Cancellation of Meeting of for lifting and lowering, or for pushing or pulling. the effect such an agreement might have the Industry Sector Advisory The product includes any subassembly of pedestal on the criminal penalties imposed? Committee on Textiles and Apparel actuator parts and components. Pedestal actuators The Commission also requests are powered by fractional horsepower DC or AC (ISAC–15) motors, which drive a ball bearing screw or acme comment regarding whether, in contrast screw through a gear reducer to convert rotary to AGENCY: to proposed Application Note 2, Office of the United States linear motion. The products are designed for flat or application of the abuse of position of Trade Representative. base mounting, have telescoping members, with trust adjustment in § 3B1.3 should be ACTION: Notice of meeting cancellation. bearings or bearing surfaces, and rigidly support the load and provide anti-rotation. Pedestal actuators precluded for cases under the proposed SUMMARY: A notice was published in the are provided for in subheadings 8483.40.50 and guideline. 8483.40.80 and in heading 8501 of the Harmonized Federal Register dated November 21, Tariff System of the United States. They are [FR Doc. 02–30088 Filed 11–26–02; 8:45 am] 2002, Volume number 67, Notice 225, primarily used in mobility scooters and electric BILLING CODE 2210–40–P page 70289, announcing a meeting of wheelchairs. VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 71008 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices appropriateness of the proposed concerning what action, if any, to take and should be submitted in accordance restrictions and whether they would be to remedy the market disruption. Within with the instructions below. Parties that in the public interest. USTR also invites 15 days after receipt of USTR’s have submitted comments and/or interested parties to participate in a recommendation, the President is requested to testify at any public public hearing (if requested). required to provide import relief unless hearing will be informed if a hearing is DATES: Requests for USTR to hold a the President determines that provision to be held. In addition, information on public hearing are due by December 9, of such relief is not in the national any public hearing may be obtained by 2002. Written comments and requests to economic interest of the United States contacting Sandy McKinzy at (202) 395– testify at any public hearing are due by or, in extraordinary cases, that the 9483. If a public hearing is requested, it December 11, 2002. If a request for taking of action would cause serious will be held on December 18, 2002, at USTR to hold a public hearing is harm to the national security of the 10 a.m. in Rooms 1 and 2, 1724 F Street, received, the hearing will be held on United States. (Section 421(k)) Prior to NW., Washington, DC. Requests to December 18, 2002. making a recommendation, USTR is testify must include the following ADDRESSES: Submissions by electronic required to publish notice of any information: (1) Name, address, mail: [email protected]. proposed measures and of the telephone number, fax number, and firm Submissions by facsimile: Sandy opportunity to comment. or affiliation of the person wishing to testify; and (2) a brief summary of the McKinzy, USTR, at (202) 395–9672. 2. Proposed Measure and Opportunity comments to be presented. FOR FURTHER INFORMATION CONTACT: For for Comment procedural questions concerning public The ITC recommended that the 3. Requirements for Submissions comments and holding of a public President impose a quantitative In order to facilitate prompt hearing, contact Sandy McKinzy, USTR, restriction for a three-year period on processing of submissions, USTR telephone (202) 395–9483, facsimile imports of pedestal actuators from strongly urges and prefers electronic (e- (202) 395–9672. Other questions should China, in the amount of 5,626 units in mail) submissions in response to this be addressed to Terrence J. McCartin, the first year; 6,470 units in the second notice. Office of North Asian Affairs, USTR, year; and 7,440 units in the third year. Persons making submissions by e- telephone (202) 395–3900, or David L. (67 FR 69557) USTR proposes this mail should use the following subject Weller, Office of General Counsel, remedy for further consideration by line: ‘‘Pedestal Actuators’’ followed by USTR, telephone (202) 395–3581. domestic producers, importers, (as appropriate) ‘‘Written Comments’’, SUPPLEMENTARY INFORMATION: exporters, and other interested parties, ‘‘Request for Public Hearing’’, or ‘‘Request to Testify’’. Documents should 1. The ITC Investigation and Section and invites any of these parties to be submitted as either WordPerfect, 421 submit their views and evidence on the appropriateness of the proposed remedy MSWord, or text (.TXT) files. Following receipt of a petition filed and whether it would be in the public Supporting documentation submitted as on August 19, 2002, on behalf of Motion interest. In addition, USTR invites spreadsheets are acceptable as Quattro Systems Corporation, the ITC instituted comments on other possible actions, Pro or Excel. For any document investigation No. TA–421–1, Pedestal including: imposition of a quota on containing business confidential Actuators From China, under section imports of pedestal actuators from information submitted electronically, 421 of the Trade Act (19 U.S.C. 2451) to China, with a quantity and/or duration the file name of the business determine whether pedestal actuators different from the ITC recommendation; confidential version should begin with from China are being imported into the imposition of a tariff-rate quota on the characters ‘‘BC-’’, and the file name United States in such increased imports of pedestal actuators from of the public version should begin with quantities or under such conditions as China; increased duties on imports of the characters ‘‘P-’’. The ‘‘P-’’ or ‘‘BC-’’ to cause or threaten to cause market pedestal actuators from China; an should be followed by the name of the disruption to the domestic producers of import monitoring mechanism; or no submitter. Persons who make like or directly competitive products. import relief (pursuant to a submissions by e-mail should not The ITC made an affirmative determination under Section 421(k) of provide separate cover letters; determination on October 18, 2002, and the Trade Act regarding the national information that might appear in a cover transmitted a report on its economic interest or national security). letter should be included in the determination, as well as its remedy In commenting on possible actions, submission itself. To the extent proposals, to USTR on November 7, interested parties are requested to possible, any attachments to the 2002. The views of the ITC, including address: (i) The short- and long-term submission should be included in the its remedy proposals, are available on effects that implementation of the same file as the submission itself, and the ITC’s Web site (http:// proposed action is likely to have on the not as separate files. www.usitc.gov/7ops/ domestic pedestal actuator industry, on Written comments submitted in chinasafeguard.htm) and are contained other domestic industries (including the response to this request will be placed in USITC Publication 3557 (November mobility scooter industry), and on in a file open to public inspection 2002), entitled ‘‘Pedestal Actuators from downstream consumers, and (ii) the pursuant to 15 CFR 2003.5, except China: Investigation No. TA–421–1’’. A short- and long-term effects that not business confidential information copy of that publication, which also taking the proposed action is likely to exempt from public inspection in includes the ITC staff report, can be have on the domestic pedestal actuator accordance with 15 CFR 2003.6. obtained from the ITC by faxing a industry, its workers, and on other Business confidential information request to (202) 205–2104 or calling domestic industries or communities. submitted in accordance with 15 CFR (202) 205–1809. An interested party may request that 2003.6 must be clearly marked Following an affirmative USTR hold a public hearing, which ‘‘BUSINESS CONFIDENTIAL’’ at the top determination by the ITC, and pursuant request must be received by December of each page, including any cover letter to Section 421(h) of the Trade Act, 9, 2002. Written comments, as well as or cover page, and must be accompanied USTR is required to make a requests to testify at any public hearing, by a nonconfidential summary of the recommendation to the President must be received by December 11, 2002, confidential information. All public VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 71009 documents and nonconfidential SWP FARES 0036 dated 5 November beyond Japan to Seoul, Korea, Singapore summaries shall be available for public 2002, Intended effective date: 1 April and Bangkok, Thailand. inspection in the USTR Reading Room. 2003. Dorothy Y. Beard, The USTR Reading Room is open to the Dorothy Y. Beard, public, by appointment only, from 10 Federal Register Liaison. a.m. to 12 noon and 1 p.m. to 4 p.m., Federal Register Liaison. [FR Doc. 02–30107 Filed 11–26–02; 8:45 am] Monday through Friday. An [FR Doc. 02–30106 Filed 11–26–02; 8:45 am] BILLING CODE 4910–62–P appointment to review the file must be BILLING CODE 4910–62–P scheduled at least 48 hours in advance and may be made by calling (202) 395– DEPARTMENT OF TRANSPORTATION DEPARTMENT OF TRANSPORTATION 6186. Surface Transportation Board Wendy S. Cutler, Office of the Secretary Assistant United States Trade Representative, [STB Docket No. AB–33 (Sub-No. 196X)] Office of North Asian Affairs. Aviation Proceedings; Certificates of [FR Doc. 02–30307 Filed 11–25–02; 2:46 pm] Public Convenience and Necessity and Union Pacific Railroad Company— Foreign Air Carrier Permits BILLING CODE 3190–01–P Abandonment Exemption—in Los Angeles County, CA Notice of Applications for Certificates of Public Convenience and Necessity Union Pacific Railroad Company (UP) DEPARTMENT OF TRANSPORTATION and Foreign Air Carrier Permits Filed has filed a notice of exemption under 49 Under subpart B (formerly subpart Q) Office of the Secretary CFR 1152 Subpart F—Exempt during the Week Ending November 15, Abandonments and Discontinuances of 2002. The following Applications for Aviation Proceedings; Agreements Service and Trackage Rights to abandon Certificates of Public Convenience and Filed the Lakewood Industrial Lead, a 0.85- Necessity and Foreign Air Carrier mile rail line extending from milepost Aviation Proceedings, Agreements Permits were filed under subpart B 16.50 near Cover Street, in Lakewood, to filed during the week ending November (formerly subpart Q) of the Department milepost 17.35 at the end of the line, 15, 2002. The following Agreements of Transportation’s Procedural south of Wardlow Street, in Long Beach, were filed with the Department of Regulations (See 14 CFR 301.201 et. in Los Angeles County, CA. The line Transportation under the provisions of seq.). The due date for Answers, traverses United States Postal Service 49 U.S.C. sections 412 and 414. Conforming Applications, or Motions to Zip Codes 90712 and 90807. Answers may be filed within 21 days Modify Scope are set forth below for UP has certified that: (1) No local after the filing of the application. each application. Following the Answer traffic has moved over the line for at Docket Number: OST–2002–13821. period DOT may process the application least 2 years; (2) the line has not been Date Filed: November 13, 2002. by expedited procedures. Such used as an overhead route for the past Parties: Members of the International procedures may consist of the adoption 2 years; (3) no formal complaint filed by Air Transport Association. of a show-cause order, a tentative order, a user of rail service on the line (or by Subject: PTC3 0595 dated 12 or in appropriate cases a final order a state or local government entity acting November 2002, Mail Vote 251— without further proceedings. on behalf of such user) regarding Resolution 010g, TC3 between Japan/ Docket Number: OST–1998–3419. cessation of service over the line either Korea and South East Asia, Special Date Filed: November 13, 2002. is pending with the Surface Passenger Amending Resolution Due Date for Answers, Conforming Transportation Board (Board) or with between Korea, (Rep. of) and China, Applications, or Motion to Modify any U.S. District Court or has been (excluding Hong Kong SAR and Macao Scope: December 4, 2002. decided in favor of complainant within SAR), Intended effective date: 26 Description: Application of Delta Air the 2-year period; and (4) the December 2002. Lines, Inc., pursuant to 49 U.S.C. requirements at 49 CFR 1105.7 Docket Number: OST–2002–13822. sections 41102 and 41108 and subpart Date Filed: November 13, 2002. (environmental reports), 49 CFR 1105.8 B, requesting renewal of its certificate of Parties: Members of the International (historic reports), 49 CFR 1105.11 public convenience and necessity to Air Transport Association. (transmittal letter), 49 CFR 1105.12 Subject: Mail Vote 246, PTC23 ME– engage in scheduled foreign air (newspaper publication), and 49 CFR TC3 0155 dated 8 October 2002, TC23/ transportation of persons, property, and 1152.50(d)(1) (notice to governmental TC123 Middle East-South East Asia mail between the terminal point agencies) have been met. Resolutions r1–r16, PTC23 ME–TC3 Atlanta, Georgia and the terminal point As a condition to this exemption, any 0159 dated 5 November 2002 Tokyo, Japan. employee adversely affected by the (Affirmative), Minutes—PTC23 ME–TC3 Docket Number: OST–1998–3419. abandonment shall be protected under 0157 dated 15 October 2001, Tables— Date Filed: November 13, 2002. Oregon Short Line R. Co.— PTC23 ME–TC3 Fares 0064 dated 5 Due Date for Answers, Conforming Abandonment—Goshen, 360 I.C.C. 91 November 2002, Intended effective date: Applications, or Motion to Modify (1979). To address whether this 1 April 2003. Scope: December 4, 2002. condition adequately protects affected Docket Number: OST–2002–13826. Description: Application of employees, a petition for partial Date Filed: November 13, 2002. Continental, Airlines, Inc., pursuant to revocation under 49 U.S.C. 10502(d) Parties: Members of the International 49 U.S.C. section 41102 and subpart B, must be filed. Provided no formal Air Transport Association. requesting renewal of its Route 753 expression of intent to file an offer of Subject: PTC23 EUR–SWP 0071 dated certificate authorizing Continental to financial assistance (OFA) has been 5 November 2002, TC23/TC123 Europe- provide scheduled air transportation of received, this exemption will be South West Pacific Resolutions r1–r17, persons, property, and mail between effective on December 28, 2002, unless Minutes—PTC23 EUR–SWP 0072 dated certain points in the United States and stayed pending reconsideration. 5 November 2002, Tables—PTC23 EUR– Tokyo and Osaka, Japan, as well as Petitions to stay that do not involve VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 71010 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices environmental issues,1 formal By the Board, David M. Konschnik, become a depositary of the Federal expressions of intent to file an OFA Director, Office of Proceedings. Government. The also execute an under 49 CFR 1152.27(c)(2),2 and trail Vernon A. Williams, agreement from the financial use/rail banking requests under 49 CFR Secretary. institutions that are authorized to 1152.29 must be filed by December 9, [FR Doc. 02–29877 Filed 11–26–02; 8:45 am] pledge collateral to secure public funds 2002. Petitions to reopen or requests for BILLING CODE 4915–00–P with Federal Reserve Banks or their public use conditions under 49 CFR designees. 1152.28 must be filed by December 17, Current Actions: Extension of 2002, with: Surface Transportation DEPARTMENT OF THE TREASURY currently approved collection. Board, 1925 K Street, NW., Washington, Type of Review: Regular. DC 20423. Fiscal Service Affected Public: Business or other for- A copy of any petition filed with the profit institutions. Board should be sent to UP’s Financial Management Service Estimated Number of Respondents: 15 representative: Mack H. Shumate, Jr., (2 forms each). Senior General Attorney, Union Pacific Proposed Collection of Information: Estimated Time Per Respondent: 30 Railroad Company, 101 North Wacker Resolution Authorizing Execution of minutes (15 minutes each form). Drive, Room 1920, Chicago, IL 60606. Depositary, Financial Agency, and Estimated Total Annual Burden If the verified notice contains false or Collateral Agreement; and Depositary, Hours: 7. misleading information, the exemption Financial Agency, and Collateral Comments: Comments submitted in is void ab initio. Agreement response to this notice will be UP has filed an environmental report summarized and/or included in the which addresses the abandonment’s AGENCY: Financial Management Service, request for Office of Management and effects, if any, on the environment and Fiscal Service, Treasury. Budget approval. All comments will historic resources. SEA will issue an ACTION: Notice and request for become a matter of public record. environmental assessment (EA) by comments. Comments are invited on: (a) Whether December 3, 2002. Interested persons the collection of information is SUMMARY: The Financial Management may obtain a copy of the EA by writing necessary for the proper performance of Service, as part of its continuing effort to SEA (Room 500, Surface the functions of the agency, including to reduce paperwork and respondent Transportation Board, Washington, DC whether the information shall have burden, invites the general public and 20423) or by calling SEA, at (202) 565– practical utility; (b) the accuracy of the other Federal agencies to take this 1552. [Assistance for the hearing agency’s estimate of the burden of the opportunity to comment on a impaired is available through the collection of information; (c) ways to continuing information collection. By Federal Information Relay Service enhance the quality, utility,and clarity this notice, the Financial Management (FIRS) at 1–800–877–8339.] Comments of the information to be collected; (d) Service solicits comments concerning on environmental and historic ways to minimize the burden of the forms ‘‘Resolution Authorizing preservation matters must be filed collection of information on Execution of Depositary, Financial within 15 days after the EA becomes respondents, including through the use Agency, and Collateral Agreement; and available to the public. of automated collection techniques or Depositary, Financial Agency, and Environmental, historic preservation, other forms of information technology; Collateral Agreement.’’ public use, or trail use/rail banking and (e) estimates of capital or start-up DATES: conditions will be imposed, where Written comments should be costs and costs of operation, appropriate, in a subsequent decision. received on or before January 27, 2003. maintenance and purchase of services to Pursuant to the provisions of 49 CFR ADDRESSES: Direct all written comments provide information. 1152.29(e)(2), UP shall file a notice of to Financial Management Service, 3700 consummation with the Board to signify East West Highway, Records and Bettsy Lane, that it has exercised the authority Information Management Staff, Room Assistant Commissioner, Federal Finance. granted and fully abandoned the line. If 135, Hyattsville, Maryland 20782. [FR Doc. 02–30016 Filed 11–26–02; 8:45 am] consummation has not been effected by FOR FURTHER INFORMATION CONTACT: BILLING CODE 4810–35–M UP’s filing of a notice of consummation Request for additional information or by November 27, 2003, and there are no copies of the form(s) and instructions legal or regulatory barriers to should be directed to Karol Forsberg, DEPARTMENT OF THE TREASURY consummation, the authority to Director, Electronic Banking Services abandon will automatically expire. Division, 401 14th Street, SW., Internal Revenue Service Board decisions and notices are Washington, DC 20227, (202) 874–6952. Proposed Collection; Comment available on our Web site at SUPPLEMENTARY INFORMATION: Pursuant Request for Research and Strategic ‘‘www.stb.dot.gov.’’ to the Paperwork Reduction Act of 1995, Planning for Limited English Proficient Decided: November 19, 2002. (44 U.S.C. 3506(c)(20(A)), the Financial (LEP) Hispanic Taxpayers Management Service solicits comments 1 The Board will grant a stay if an informed on the collection of information AGENCY: Internal Revenue Service (IRS), decision on environmental issues (whether raised described below. Treasury. by a party or by the Board’s Section of Title: Resolution Authorizing ACTION: Environmental Analysis (SEA) in its independent Notice and request for investigation) cannot be made before the Execution of Depositary, Financial comments. exemption’s effective date. See Exemption of Out- Agency, and Collateral Agreement; and of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any Depositary, Financial Agency, and SUMMARY: The Department of the request for a stay should be filed as soon as possible Collateral Agreement. Treasury, as part of its continuing effort so that the Board may take appropriate action before to reduce paperwork and respondent the exemption’s effective date. OMB Number: 1510–0067 2 Each OFA must be accompanied by the filing Form Number: FMS 5902; FMS 5903. burden, invites the general public and fee, which currently is set at $1,100. See 49 CFR Abstract: These forms are used to give other Federal agencies to take this 1002.2(f)(25). authority to financial institutions to opportunity to comment on proposed VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 71011 and/or continuing information Reform Act of 1998 requires the IRS to respond to, a collection of information collections, as required by the report to Congress annually on its unless the collection of information Paperwork Reduction Act of 1995, progress in eliminating barriers to e- displays a valid OMB control number. Public Law 104–13 (44 U.S.C. filing. The purpose of these focus Books or records relating to a collection 3506(c)(2)(A)). Currently, the IRS is groups, ethnographies, one-on-one of information must be retained as long soliciting comments concerning interviews, and segmentation study is to as their contents may become material Research and Strategic Planning For understand the cultural nuances and in the administration of any internal Limited English Proficient (LEP) perceptions of taxes and the IRS and revenue law. Generally, tax returns and Hispanic Taxpayers. needs among Hispanics so that the IRS tax return information are confidential, DATES: Written comments should be can provide better services and outreach as required by 26 U.S.C. 6103. to this growing segment of the U.S. received on or before January 27, 2003 Request for Comments to be assured of consideration. population. These studies will not only help identify barriers to e-filing, but will ADDRESSES: Direct all written comments Comments submitted in response to to Glenn P. Kirkland, Internal Revenue also provide the IRS with information to this notice will be summarized and/or Service, room 6411, 1111 Constitution be used in marketing and included in the request for OMB Avenue NW., Washington, DC 20224. communication efforts related to approval. All comments will become a reaching Hispanic in a way that is more matter of public record. Comments are FOR FURTHER INFORMATION CONTACT: impactful and relevant. The efforts invited on: (a) Whether the collection of Requests for additional information or resulting from the studies will help the information is necessary for the proper copies of the survey should be directed IRS build a more trusting relationship performance of the functions of the to Carol Savage, (202) 622–3945, or while educating LEP Hispanics on how agency, including whether the through the Internet to properly fill out their tax forms information shall have practical utility; ([email protected].), Internal encourage electronic filing. (b) the accuracy of the agency’s estimate Revenue Service, room 6407, 1111 Current Actions: This is a new of the burden of the collection of Constitution Avenue NW., Washington, collection of information. information; (c) ways to enhance the DC 20224. Type of Review: New OMB approval. quality, utility, and clarity of the SUPPLEMENTARY INFORMATION: Affected Public: Individuals or information to be collected; (d) ways to Title: Research and Strategic Planning households, business or other for-profit minimize the burden of the collection of For Limited English Proficient (LEP) organizations, and the Federal information on respondents, including Hispanic Taxpayers. Government. through the use of automated collection OMB Number: To be assigned later. Estimated Number of Respondents: techniques or other forms of information Abstract: Executive Order 13166 1,712. technology; and (e) estimates of capital requires Federal agencies to examine the Estimated Time Per Respondent: 50 or start-up costs and costs of operation, services they provide, identify any need minutes. maintenance, and purchase of services for services to those with limited Estimated Total Annual Burden to provide information. English proficiency (LEP), and develop Hours: 1,440. and implement a system to provide The following paragraph applies to all Approved: November 22, 2002. those services so LEP persons can have of the collections of information covered Glenn P. Kirkland, meaningful access consistent with the by this notice: IRS Reports Clearance Officer. fundamental mission of the agency. In An agency may not conduct or [FR Doc. 02–30144 Filed 11–26–02; 8:45 am] addition, the IRS Restructuring and sponsor, and a person is not required to BILLING CODE 4830–01–P VerDate 0ct<31>2002 16:54 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 E:\FR\FM\27NON1.SGM 27NON1 Wednesday, November 27, 2002 Part II Department of Defense Department of the Army; Corps of Engineers 33 CFR Part 334 United States Navy Restricted Area, Sandy Hook Bay, Naval Weapons Station EARLE, New Jersey; Proposed Rule VerDate 0ct<31>2002 16:57 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\27NOP2.SGM 27NOP2 71014 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules DEPARTMENT OF DEFENSE allow the maintenance of a 750-yard 202 or 205 of the Unfunded Mandates wide perimeter around the pier Reform Act (Public Laws 104.4, 109 Department of the Army; Corps of complex. To better protect authorized Statute 48, 2 U.S.C. 1501 et seq.). We Engineers vessels transiting the Terminal Channel have also found under Section 203 of and mooring at the EARLE Piers from the Act, that small Governments will 33 CFR Part 334 acts of terrorism, sabotage, or other not be significantly or uniquely affected subversive acts and incidences of a by this rulemaking. United States Navy Restricted Area, similar nature during explosives loading List of Subjects in 33 CFR Part 334 Sandy Hook Bay, Naval Weapons and unloading, the Commander, Naval Station EARLE, New Jersey Weapons Station EARLE, has requested Danger zones, Navigation (water), that the U.S. Army Corps of Engineers Restricted areas, Waterways. AGENCY: United States Army Corps of For the reasons set out in the Engineers, DoD. establish a Restricted Area to be enforced at all times. This will enable preamble, the Corps proposes to amend ACTION: Notice of proposed rulemaking the U.S. Navy to restrict vessel traffic in 33 CFR part 334 as follows: and request for comments. a portion of Sandy Hook Bay. PART 334—DANGER ZONE AND SUMMARY: The U.S. Army Corps of Procedural Requirements RESTRICTED AREA REGULATIONS Engineers is proposing to amend a. Review Under Executive Order 12866 regulations to establish a restricted area 1. The authority citation for part 334 in the vicinity of Naval Weapons Station This proposed rule is issued with continues to read as follows: respect to a military function of the EARLE (EARLE) Piers and Terminal Authority: 40 Stat. 266; (33 U.S.C. 1) and Channel, Sandy Hook Bay, New Jersey. United States and the provisions of 40 Stat. 892; (33 U.S.C. 3). Executive Order 12866 do not apply. These regulations will enable the U.S. 2. Section 334.102 is added to read as Navy to enhance safety and security b. Review Under the Regulatory follows: around active military vessels moored at Flexibility Act the facility and partly restrict travel in These proposed rules have been § 334.102 Sandy Hook Bay, Naval the area. These regulations are necessary Weapons Station EARLE (EARLE) Piers and to safeguard military vessels and United reviewed under the Regulatory Terminal Channel, Middletown, New Jersey, States government facilities from Flexibility Act (Public Law 96–354; 5 Restricted Area. U.S.C. 601) which requires the sabotage and other subversive acts, (a) The area: An area bounded by the preparation of a regulatory flexibility accidents, or incidents of similar nature. following points, beginning at: latitude analysis for any regulation that will These regulations are also necessary to 40° 25′55.6″N, longitude 074° have a significant economic impact on protect the public from potentially 04′31.4″W; thence to latitude 40° a substantial number of small entities hazardous conditions that may exist as 26′54.0″N, longitude 074° 03′53.0″W; (i.e., small businesses and small a result of military use of the area. thence to latitude 40° 26′58.0″N, Governments). The U.S. Army Corps of longitude 074° 04′03.0″W; thence to DATES: Written comments must be Engineers expects that the establishment latitude 40° 27′56.0″N, longitude 074° submitted on or before December 27, of this restricted area would have 03′24.0″W; thence to latitude 40° 2002. practically no economic impact on the 27′41.7″N, longitude 074° 02′45.0″W; ADDRESSES: Send comments to U.S. public, and would create no anticipated thence to latitude 40° 27′23.5″N, Army Corps of Engineers, ATTN: navigational hazard or interference with longitude 074° 02′16.6″W; thence to CECW–OR, 441 G Street, NW, existing waterway traffic. Accordingly, latitude 40° 28′21.2″N, longitude 074° Washington, DC 20314–1000. it is certified that this proposal if ′ ″ ° adopted, will not have a significant 01 56.0 W; thence to latitude 40 FOR FURTHER INFORMATION CONTACT: Mr. 28′07.9″N, longitude 074° 02′18.6″W; Frank Torbett, Headquarters Regulatory economic impact on a substantial ° ′ ″ number of small entities. thence to latitude 40 27 39.3 N, Branch, Washington, DC at (202) 761– longitude 074° 02′38.3″W; thence to 4618, or Mr. Richard L. Tomer, U.S. c. Review Under the National latitude 40° 27′28.5″N, longitude 074° Army Corps of Engineers, New York Environmental Policy Act 02′10.4″W; thence to latitude 40° District, Regulatory Branch, at (212) An Environmental Assessment (EA) 26′29.5″N, longitude 074° 02′51.2″W; 264–3996. has been prepared for this action. The thence to latitude 40° 26′31.4″N, SUPPLEMENTARY INFORMATION: Pursuant U.S. Army Corps of Engineers has longitude 074° 02′55.4″W; thence to to its authorities in section 7 of the concluded, based on the minor nature of latitude 40° 25′27.1″N, longitude 074° Rivers and Harbors Act of 1917 (40 Stat the proposed additional restricted area 03′39.7″W longitude; thence along the 266; 33 U.S.C. 1) and chapter XIX, of the regulations, that this action, if adopted, shoreline to the point of origin (NAD Army Appropriations Act of 1919 (40 will not be a major federal action having 83). Stat 892; 33 U.S.C. 3) the Corps is a significant impact on the quality of the (b) The regulation. (1) Except as set proposing to amend the restricted area human environment, and preparation of forth in paragraph (b)(2) of this section, regulations in 33 CFR part 334 by an environmental impact statement is all persons, swimmers, vessels and establishing a restricted area at not required. The environmental other craft, except those vessels under § 334.102. The public currently has assessment may be reviewed at the the supervision or contract to local restricted access near the facility and District office listed at FOR FURTHER military or Naval authority, vessels of units assigned there due to the existence INFORMATION CONTACT above. the United States Coast Guard, and of a ‘‘Security Zone’’ previously other state law enforcement vessels, are established by the U.S. Coast Guard d. Unfunded Mandates Act prohibited from entering the restricted which is identified at 33 CFR 165.130. This proposed rule does not impose areas without permission from the It should be noted that the restricted an enforceable duty among the private Commanding Officer, Naval Weapons area represents an expansion of the sector and, therefore, is not a Federal Station EARLE, USN, New Jersey, or Security Zone by an additional 295 private sector mandate and is not his/her authorized representative; and yards to the west. This expansion would subject to the requirements of Section (2) Vessels are authorized to cross the VerDate 0ct<31>2002 16:57 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP2.SGM 27NOP2 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71015 Terminal Channel provided that there thence to latitude 40° 27′39.3″N, authorized by the District Engineer, are no naval vessels then transiting the longitude 074° 02′38.3″W). New York District, U.S. Army Corps of ° channel (bounded by latitude 40 (c) Enforcement. The regulation in Engineers. ′ ″ ° ′ ″ 27 41.7 N, longitude 074 02 45.0 W; this section, promulgated by the United Dated: October 31, 2002. ° ′ ″ thence to latitude 40 27 23.5 N, States Army Corps of Engineers, shall be Michael G. Ensch, ° ′ ″ longitude 074 02 16.6 W; thence to enforced by the Commander, Naval ° ′ ″ ° Acting Chief, Operations Division, Directorate latitude 40 28 21.2 N, longitude 074 Weapons Station EARLE, New Jersey of Civil Works. ′ ″ ° 01 56.0 W; thence to latitude 40 and/or other persons or agencies as he/ [FR Doc. 02–30028 Filed 11–26–02; 8:45 am] ′ ″ ° ′ ″ 28 07.9 N, longitude 074 02 18.6 W; she may designate, or any other person BILLING CODE 3710–92–P VerDate 0ct<31>2002 16:57 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP2.SGM 27NOP2 Wednesday, November 27, 2002 Part III Securities and Exchange Commission 17 CFR Part 210 Retention of Records Relevant to Audits and Reviews; Proposed Rule VerDate 0ct<31>2002 16:59 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\27NOP3.SGM 27NOP3 71018 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules SECURITIES AND EXCHANGE I. Executive Summary destruction or fabrication of evidence COMMISSION and the preservation of ‘‘financial and As mandated by section 802 of the audit records.’’ 3 We are directed under 17 CFR Part 210 Sarbanes-Oxley Act of 2002 (‘‘Sarbanes- 1 that section to promulgate rules related Oxley Act’’ or ‘‘the Act’’), we are to the retention of records relevant to [Release Nos. 33–8151; 34–46869; IC– proposing to amend Regulation S–X to the audits and reviews of financial 25830; File No. S7–46–02] require accountants who audit or review statements that issuers file with the an issuer’s financial statements to retain Commission. RIN 3235–AI74 certain records relevant to that audit or Section 802 states that the record review for a period of five years from retention requirements should apply to Retention of Records Relevant to the end of the fiscal year in which an audits of issuers of securities to which Audits and Reviews audit or review was concluded. These section 10A(a) of the Securities records would include workpapers and Exchange Act of 1934 (‘‘Exchange Act’’) AGENCY: Securities and Exchange other documents that form the basis of applies. The term ‘‘issuer’’ in this Commission. the audit or review, and memoranda, context is defined in section 10A(f) of ACTION: Proposed rule. correspondence, communications, other the Exchange Act to include certain documents, and records (including entities filing reports under that Act and SUMMARY: As directed by section 802 of electronic records), which are created, entities that have filed and not the Sarbanes-Oxley Act of 2002, we are sent or received in connection with the proposing rules requiring accounting withdrawn registration statements to audit or review, and contain sell securities under the Securities Act firms to retain for five years certain conclusions, opinions, analyses, or of 1933.4 We also are proposing that the records relevant to their audits and financial data related to the audit or record retention requirements apply to reviews of issuers’ financial statements. review. Records described in the any audit or review of the financial Records to be retained would include an proposed rules would be retained statements of any registered investment accounting firm’s workpapers and whether the conclusions, opinions, company.5 We believe that it is certain other documents that contain analyses, or financial data in the records conclusions, opinions, analyses, or would support or cast doubt on the final Section 1520 also provides that any person who financial data related to the audit or conclusions reached by the auditor. knowingly and willfully violates subsection (a)(1), review. or any rule or regulation promulgated by the II. Discussion of Proposed Rule Securities and Exchange Commission under DATES: Comments should be received on subsection (a)(2), may be fined, imprisoned for not or before December 27, 2002. Section 802 of the Sarbanes-Oxley more than 10 years, or both. It further provides that 2 nothing in section 1520 shall be deemed to ADDRESSES Act is intended to address the : You should send three diminish or relieve any person of any other duty or copies of your comments to Jonathan G. obligation imposed by Federal or State law or 1 Katz, Secretary, U.S. Securities and Pub. L. 107–204, 116 Stat. 745 (2002). regulation to maintain, or refrain from destroying, 2 Exchange Commission, 450 Fifth Street, Section 802 of the Sarbanes-Oxley Act, among any document. other things, adds sections 1519 and 1520 to 3 Floor statement by Senator Leahy, 148 Cong. NW., Washington, DC 20549–0609. You Chapter 73 of Title 18 of the United States Code. Rec. S7418 (July 26, 2002). also may submit your comments Section 1519 states, among other things, that 4 Section 802 states that the record retention electronically to the following address: anyone who knowingly alters, destroys, mutilates, requirement applies to ‘‘an audit of an issuer of conceals, covers up, falsifies, or makes a false entry securities to which section 10A(a) of the Securities [email protected]. Please use only in any record, document, or tangible object with the one method of delivery. All comment Exchange Act of 1934 (15 U.S.C. 78j–1(a)) applies.’’ intent to impede, obstruct, or influence an Section 10A(a) of the Securities Exchange Act of letters should refer to File No. S7–46– investigation or proper administration of any matter 1934 (‘‘Exchange Act’’) states, ‘‘Each audit required 02; this file number should be included within the jurisdiction of any department or agency pursuant to this title of the financial statements of in the subject line if you use electronic of the United States or any case filed under the an issuer by an independent public accountant bankruptcy code, or in relation to or contemplation shall include’’ designated procedures. Section mail. Comment letters will be available of any such matter or case, may be fined, 10A(f), which has been added to the Exchange Act for public inspection and copying at the imprisoned for not more than 20 years, or both. by section 205(d) of the Sarbanes-Oxley Act, states: Commission’s Public Reference Room, Section 1520(a)(1) specifies that: ‘‘Any ‘‘As used in this section the term ‘issuer’ means an 450 Fifth Street, NW., Washington, DC accountant who conducts an audit of an issuer of issuer (as defined in section 3 [of the Exchange securities to which section 10A(a) of the Securities Act]), the securities of which are registered under 20549–0102. We will post Exchange Act of 1934 applies, shall maintain all section 12, or that is required to file reports electronically-submitted comment audit or review workpapers for a period of 5 years pursuant to section 15(d), or that files or has filed letters on the Commission’s Internet from the end of the fiscal period in which the audit a registration statement that has not yet become Web site (http://www.sec.gov). We do or review was concluded.’’ Section 1520(a)(2) effective under the Securities Act of 1933 (15 U.S.C. directs the Commission to promulgate, by January 77a et seq.), and that it has not withdrawn.’’ Section not edit personal identifying 26, 2003: 3(a)(8) of the Exchange Act, 15 U.S.C. 78c(a)(8), information, such as names or electronic ‘‘* * * such rules and regulations, as are states that, with certain exceptions, an ‘‘issuer’’ is mail addresses, from electronic reasonably necessary, relating to the retention of ‘‘any person who issues or proposes to issue any submissions. Submit only information relevant records such as workpapers, documents security* * *. ’’ that form the basis of an audit or review, Neither section 802 nor the proposed rules you wish to make publicly available. memoranda, correspondence, communications, exempt auditors of foreign issuers’ financial FOR FURTHER INFORMATION CONTACT: other documents, and records (including electronic statements. Accordingly, the retention requirements Samuel L. Burke, Associate Chief records) which are created, sent, or received in would apply to domestic and foreign accounting connection with an audit or review and contain firms conducting audits or reviews of foreign Accountant, Robert E. Burns, Chief conclusions, opinions, analyses, or financial data issuers’ financial statements. Counsel, or D. Douglas Alkema, relating to such an audit or review, which is Because investment advisers and broker-dealers Professional Accounting Fellow, at (202) conducted by an accountant who conducts an audit are not necessarily issuers, audits of their financial 942–4400, Office of the Chief of an issuer of securities to which section 10A(a) statements required for regulatory purposes would of the Securities Exchange Act of 1934 (15 U.S.C. not be subject to the proposed rules. In other words, Accountant, U.S. Securities and 78j–1(a)) applies. The Commission may, from time only the audits of the financial statements of Exchange Commission, 450 Fifth Street, to time, amend or supplement the rules and investment advisers and broker-dealers meeting the NW., Washington, DC 20549–1103. regulations that it is required to promulgate under definition of ‘‘issuer’’ in section 10A(f), or that are registered investment companies, would be subject SUPPLEMENTARY INFORMATION: this section, after adequate notice and an We are opportunity for comment, in order to ensure that to the retention requirements in the proposed rules. proposing to add rule 2–06 to such rules and regulations adequately comport with 5 See section 8 of the Investment Company Act of Regulation S–X. the purposes of this section.’’ 1940, 15 U.S.C. 80a–8. VerDate 0ct<31>2002 16:59 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP3.SGM 27NOP3 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71019 important for these record retention The period for retention of these required to be retained by generally requirements, like our other record materials is five years after the end of accepted auditing standards (‘‘GAAS’’). retention requirements, to apply the fiscal period in which an accountant GAAS does not use the specific term consistently with respect to all audits or reviews an issuer’s financial ‘‘workpapers’’ 15 but Statement on registered investment companies, statements,10 which is the period Auditing Standards No. 96, ‘‘Audit regardless of whether they fall within prescribed by section 802.11 Documentation,’’ states, in part: the periodic reporting requirements of Section 103 of the Sarbanes-Oxley Act The auditor should prepare and maintain the Exchange Act.6 directs the Public Company Accounting audit documentation, the content of which Oversight Board (‘‘the Board’’) to require should be designed to meet the Documents To Be Retained and Time of auditors to retain for seven years audit circumstances of the particular audit Retention workpapers and other materials that engagement. Audit documentation is the Paragraph (a) of proposed rule 2–06 support the auditor’s conclusions in any principal record of the auditing procedures applied, evidence obtained, and conclusions would identify the documents that must 12 audit report. There may be fewer reached by the auditor in the engagement.16 be retained and the time period for documents retained pursuant to section retaining those documents.7 In both 103, which focuses more on workpapers We have placed the body of this instances, we have followed the that support the auditor’s conclusions, provision into paragraph (b) and stated guidance in section 802. than under section 802, which includes that ‘‘workpapers’’ means The proposed rule would require that not only workpapers but also other ‘‘documentation of auditing or review the auditor 8 retain workpapers and documents that meet the criteria noted procedures applied, evidence obtained, other documents that form the basis of in this release. Many documents, and conclusions reached by the the audit or review of an issuer’s however, may be covered by both accountant in the audit or review financial statements, and memoranda, retention requirements. engagement, as required by standards correspondence, communications, other established or adopted by the documents, and records (including Workpapers Defined Commission or by the Public Company electronic records) that meet two Section 802 is intended to require the Accounting Oversight Board.’’ 17 The criteria. The two criteria are that the retention of more than what proposed rule, therefore, recognizes that materials (1) are created, sent or traditionally has been thought of as an the Board, subject to Commission received in connection with the audit or auditor’s ‘‘workpapers.’’13 To clarify the oversight, has the ability to review and review, and (2) contain conclusions, distinction between workpapers and change the nature and scope of the opinions, analyses, or financial data other materials that would be retained, required documentation of procedures, related to the audit or review. The paragraph (b) of the proposed rules evidence, and conclusions related to proposed rule, therefore, would require would define the term ‘‘workpapers.’’ audits and reviews of financial 18 an auditor to retain any materials The legislative history to this section statements. satisfying both criteria. Non-substantive states that the term is to be used as it Differences of Opinion materials that are not part of the is ‘‘widely understood’’ by the SAS 96 states that audit workpapers, however, such as Commission and by the accounting documentation serves mainly to provide administrative records, and other profession.14 We believe that the term is the principal support for the auditor’s documents that do not contain relevant understood to refer to the documents report and to aid the auditor in the financial data or the auditor’s conduct and supervision of the audit.19 conclusions, opinions or analyses retention regulations.’’ 148 Cong. Rec. S7419 (July In order to ensure that the purposes of would not meet the second of these 26, 2002). 10 the Act are fulfilled, we have included criteria and would not have to be The retention period is not based on the fiscal period covered by the financial statements being in paragraph (c) of the proposed rules retained.9 audited or reviewed, but when the audit or review the specific requirement that the occurs. For example, if a company has a calendar materials retained under paragraph (a) 6 Cf. rules 31a–1 and 31a–2 under the Investment year-end fiscal year, for an audit of year 2002 Company Act of 1940, 17 CFR 270.31a–1 and 31a– financial statements that concludes in February or would include not only those that 2 (record-keeping and record-retention March 2003, the records would be required to be support an auditor’s conclusions about requirements for registered investment companies). retained until January 1, 2009. the financial statements but also those 7 The Commission’s proposals are not intended to 11 See Statement of Senator Leahy on the Senate materials that may ‘‘cast doubt’’ on pre-empt or supersede any other federal or state floor: ‘‘[I]t is intended that the SEC promulgate record retention requirements. rules and regulations that require the retention of 15 8 Proposed rule 2–06 uses the term ‘‘accountant,’’ such substantive material * * * for such a period American Institute of Certified Public which is defined in rule 2–01(f)(1) of the as is reasonable and necessary for effective Accountants (‘‘AICPA’’), Statement on Auditing Commission’s auditor independence rules, 17 CFR enforcement of the securities laws and the criminal Standards No. (‘‘SAS’’) 96, ‘‘Audit Documentation,’’ 210.2–01(f)(1), to mean ‘‘a certified public laws, most of which have a five-year statute of at footnote 1, however, acknowledges that: ‘‘Audit accountant or public accountant performing limitations.’’ 148 Cong. Rec. S7419 (July 26, 2002). Documentation also may be referred to as working services in connection with an engagement for 12 The Board is required under section papers’’; Codification of Statements on Auditing which independence is required. References to the 103(a)(2)(A)(i) of the Sarbanes-Oxley Act to adopt Standards (‘‘AU’’) § 339. accountant include any accounting firm with which an auditing standard that requires accounting firms 16 SAS 96, at ¶ 1; AU § 339.01. This paragraph the certified public or public accountant is registered with the Board to ‘‘* * * maintain for a also states: ‘‘The quality, type, and content of audit affiliated.’’ In a comparison release, the period of not less than 7 years, audit work papers, documentation are matters of the auditor’s Commission is proposing to amend this definition and other information related to any audit report, professional judgment.’’ The proposed rule does not to include the term ‘‘registered public accounting in sufficient detail to support the conclusions include this sentence, but instead notes that the firm.’’ We would apply the definition in rule 2– reached in such report.’’ Commission or the Board may reexamine these 01(f)(1) to proposed rule 2–06. Because the 13 Senator Leahy stated on the Senate floor that requirements in the auditing standards. definition would continue to reference certified section 802 ‘‘requires the SEC to promulgate 17 Prior to the estblishment or adoption of public accountants and public accountants, the reasonable and necessary regulations * * * auditing standards by the Board, ‘‘workpapers’’ Commission could make the proposed rules regarding the retention of categories of electronic would continue to mean the documentation of effective before accounting firms register with the and non-electronic audit records, which contain auditing or review procedures applied, evidence Public Company Accounting Oversight Board. opinions, conclusions, analysis or financial data, in obtained, and conclusions reached by the 9 Senator Leahy stated on the Senate floor, ‘‘Non- addition to the actual work papers.’’ 148 Cong. Rec. accountant in the audit or review engagement as substantive materials, however, which are not S7418 (July 26, 2002). required by GAAS. relevant to the conclusions or opinions expressed 14 Statement by Senator Leahy on the Senate 18 See section 103(a) of the Sarbanes-Oxley Act. (or not expressed), need not be included in such floor, 148 Cong. Rec. S7418 (July 26, 2002). 19 SAS 96, at ¶ 3; AU § 339.03 VerDate 0ct<31>2002 16:59 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP3.SGM 27NOP3 71020 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules those conclusions.20 Paragraph (c) is believes it is necessary to disassociate Request for Comment himself from the resolution of the matter.22 intended to ensure the preservation of • Are the ‘‘workpapers’’ and other those records that reflect differing In addition, SAS 96 states that the documents that would be required to be professional judgments and views (both documentation for an audit should retained under this proposed rule within the accounting firm and between include the findings or issues that in the sufficiently described? If not, what the firm and the issuer) and how those auditor’s judgment are significant, the changes should be made to provide for differences were resolved. To better actions taken to address them (including greater clarity? Are there alternative communicate what we intend by ‘‘cast any additional evidence obtained), and definitions that would better implement doubt’’ on the auditor’s conclusions, we the basis for the final conclusions section 802? 23 have included in the proposed rule the reached. For example, if a • Would auditors have to implement example of documentation of memorandum is prepared by a member significant changes to their retention differences of opinion concerning of a large accounting firm’s national policies or internal control processes accounting and auditing issues. office that is critical of the accounting and procedures, as well as system The auditor in a variety of contexts used by an audit client, or of a position upgrades, to ensure compliance with the may create materials related to taken by the partner in charge of the proposed rule? If so, what types of differences of opinion. For example, audit of those financial statements, that changes most likely would be required? 24 SAS No. 22, ‘‘Planning and memorandum should be retained. How can we minimize any required Supervision,’’ states in part: Another example would be changes consistent with section 802? documentation related to an auditor’s • Would auditors circumvent the The auditor with final responsibility for communications with an issuer’s audit the audit and assistants should be aware of proposed record retention requirements committee about alternative disclosures by, for example, replacing written the procedures to be followed when and accounting methods used by the differences of opinion concerning accounting communications with oral and auditing issues exist among firm issuer that are not the disclosures or 25 communications? If so, what additional personnel involved in the audit. Such accounting preferred by the auditor. measures should be taken? We believe that retaining the procedures should enable an assistant to • Section 103 of the Sarbanes-Oxley materials created under SAS 22 and document his disagreement with the Act directs the Public Company SAS 96, as well as other materials that conclusions reached if, after appropriate Accounting Oversight Board to adopt an might cast doubt on the conclusions consultation, he believes it necessary to auditing standard that requires each disassociate himself from the resolution of reflected in the auditor’s report, would registered public accounting firm to the matter. In this situation, the basis for the be consistent with the letter and spirit retain for a period of not less than seven final resolution should also be of the Sarbanes-Oxley Act. documented.21 years audit workpapers and other information that support the An interpretation of this section 22 ‘‘Planning and Supervision: Auditing conclusions in the auditor’s report. issued by the AICPA’s Auditing Interpretations of Section 311,’’ AU § 9311.37. ‘‘Assistants,’’ in the context of this interpretation, Should the retention period in the Standards Board emphasizes the should be defined broadly and include other proposed rules be extended to seven professional obligation on each person partners who are on the audit engagement team. years to coincide with the retention involved in an audit engagement to 23 SAS 96, ¶ 9; AU § 339.09, which states: In period in section 103? Why? bring his or her concerns to the addition, the auditor should document findings or • Should the retention period be for attention of others in the firm and, as issues that in his or her judgment are significant, actions taken to address them (including any some other appropriate period based on appropriate, to document those additional evidence obtained), and the basis for the consideration of other factors, such as concerns. This interpretation states: final conclusions reached. See also, SAS 96, ¶ 6; AU § 339.06, which states: the utility of the records to investors, Accordingly, each assistant has a Audit documentation should be sufficient to (a) regulators or litigants, the cost of professional responsibility to bring to the enable members of the engagement team with retaining the records, or the size of the attention of appropriate individuals in the supervision and review responsibilities to accounting firm? firm, disagreements or concerns the assistant understand the nature, timing, extent, and results • Audits of the financial statements of might have with respect to accounting and of auditing procedures performed, and the evidence auditing issues that he believes are of obtained; (b) indicate the engagement team many investment advisers and broker- significance to the financial statements or member(s) who performed and reviewed the work; dealers would not be subject to the auditor’s report, however those and (c) show that the accounting records agree or proposed rules because they are not reconcile with the financial statements or other disagreements or concerns may have arisen. information being reported on. ‘‘issuers’’ of securities. Should the In addition, each assistant should have a 24 Such a memorandum might be prepared in proposals be amended to apply the right to document his disagreement if he connection with the consultation process that is retention period to audits of the part of an accounting firm’s quality controls. See, financial statements of these entities? 20 Senator Leahy stated on the Senate floor: In e.g., Section 103(a)(2)(B)(ii) of the Sarbanes-Oxley Why? Act. Superseded drafts or auditor review notes that light of the apparent massive document destruction • The proposed rules would by Andersen, and the company’s apparently do not reflect a difference of opinion, however, misleading document retention policy, even in light would not have to be retained. incorporate the definition of ‘‘issuer’’ in of its prior SEC violations, it is intended that the 25 Section 204 of the Sarbanes-Oxley Act adds new section 10A(f) of the Exchange Act? SEC promulgate rules and regulations that require section 10A(k) to the Exchange Act and requires Should ‘‘issuer’’ be defined more the retention of such substantive material, auditors to report certain matters to audit broadly to include any issuer of including material that casts doubt on the views committees, including: ‘‘(a) all critical accounting expressed in the audit or review, for such a period policies and practices to be used, (2) all alternative securities with respect to which a as is reasonable and necessary for effective treatments of financial information within generally registration statement or report is filed enforcement of the securities laws and the criminal accepted accounting principles that have been with the Commission? Why? laws, most of which have a five-year statue of discussed with management officials of the issuer, • ramifications of the use of such alternative Should there be a document limitations. retention requirement for issuers as well 148 Cong. Rec. S7419 (July 26, 2002). disclosures and treatments, and the treatment preferred by the registered public accounting firm; as auditors? If yes, what would be the 21 SAS 22, ¶ 22 (as amended by SAS 47, 48 and and (3) other material written communications scope and nature of that requirement? 77); AU § 311.22. ‘‘Assistants,’’ in the context of the between the registered public accounting firm and first sentence of the quoted paragraph, should be the management of the issuer, such as the For example, should issuers be required defined broadly and include other partners who are management letter or schedule of unadjusted to retain records that the auditor on the audit engagement team. differences.’’ reviewed but did not include in the VerDate 0ct<31>2002 16:59 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP3.SGM 27NOP3 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71021 audit workpapers? Should issuers be seq.), and the Commission has firm currently is required to perform its required to keep copies of all submitted them to the Office of audits and reviews in accordance with correspondence with the auditors and Management and Budget (‘‘OMB’’) for generally accepted auditing standards copies of documents provided to the review in accordance with 44 U.S.C. (‘‘GAAS’’), which require auditors to auditors? 3507(d) and 5 CFR 1320.11. An agency retain certain documentation of their • Section 32(c) of the Investment may not conduct or sponsor, and a work.27 Accounting firms, therefore, Company Act of 1940 authorizes the person is not required to respond to, a currently make decisions about the Commission to adopt rules to require collection of information unless it retention of each record created during accountants and auditors to keep displays a currently valid control the audit or review. GAAS, however, reports, work sheets, and other number. Compliance with the proposed currently does not require explicitly that documents and papers relating to requirements would be mandatory. The auditors retain documents that may registered investment companies for proposed rules would require that ‘‘cast doubt’’ on their opinions and such periods as the Commission may accounting firms retain certain records GAAS does not set definite retention prescribe, and to make these documents for five years. Retained information periods. As a result, the proposed rule and papers available for inspection by would be kept confidential unless or might result in the retention of more the Commission and its staff. Should we until made public during an records than currently required under use our authority under this section to enforcement, disciplinary or other legal GAAS, and might result in some extend proposed rule 2–06 by requiring or administrative proceeding. accounting firms keeping those records that audit workpapers and other The title for the collection of for a longer period of time. documents required to be retained with information is ‘‘Regulation S–X—Record The Commission, through its respect to the audit or review of Retention.’’ We are applying for a new experience in matters pertaining to investment company financial OMB Control Number for this accounting firms, believes that many statements be made available for collection. accounting firms retain records of audits inspection by the Commission and its As mandated by section 802 of the and reviews of the financial statements staff? Sarbanes-Oxley Act of 2002, we are of current clients for five or more years. • The proposed rules would apply to proposing to amend Regulation S–X to Once an issuer is no longer a client, foreign auditors. Are there statutes, require accountants who audit or review some firms currently may dispose of rules or standards in foreign an issuer’s financial statements to retain those records before the expiration of jurisdictions that govern the retention of certain records relevant to that audit or the five-year period. It is important to records by foreign auditors that are review for a period of five years from note, however, that the proposed rules different from and potentially conflict the end of the fiscal year in which an do not require the creation of any with the requirements of the proposed audit or review was concluded. The record, they require only that existing rules? If so, how is the foreign law proposed rules do not require records be maintained for the prescribed incompatible with the specific accounting firms to create any new time period. It also is important to note provisions of the proposed rules? records. that decisions about the retention of • Does the ‘‘cast doubt on the final The records to be retained would records currently are made as a part of conclusions reached by the auditor’’ include workpapers and other each audit or review. provision in the proposed rules documents that form the basis of the We do not anticipate any significant adequately capture the scope of the audit or review, and memoranda, increase in burden hours for accounting retention requirements under the correspondence, communications, other firms or issuers because the proposed Sarbanes-Oxley Act? Should the scope documents, and records (including rules do not require the creation of be narrower or broader? Would a electronic records), which are created, records, would not significantly different test be more appropriate, such sent or received in connection with the increase procedures related to the as ‘‘significant differences in audit or review, and contain review of documents, and minimal, if professional judgment,’’ or ‘‘differences conclusions, opinions, analyses, or any, work would be associated with the of opinion on issues that are material to financial data related to the audit or retention of these records. The disposal the issuer’s financial statements or to review. Records described in the of those records, which would occur in the auditor’s final conclusions regarding proposed rules would be retained any event, merely would be delayed. In any audit or review’? whether the conclusions, opinions, addition, because an already large and • Should the rules include other analyses, or financial data in the records ever-increasing portion of the records examples of materials that ‘‘cast doubt’’ would support or cast doubt on the final required to be retained are kept on auditors’ conclusions? If so, what conclusions reached by the auditor. The electronically, we do not anticipate that examples should be included? required retention of audit and review the incremental increase in storage costs III. General Request for Comments records should discourage the for documents would be significant for destruction, and assist in the any firm or for any single audit client. We invite any interested person availability, of records that may be To cover all increases in burden hours, wishing to submit written comments on relevant to investigations conducted and the proposed rules to do so. We litigation brought under the securities those filing registration statements to conduct specifically request comments from laws. initial public offerings. The same auditors also investors, accounting firms and issuers. We estimate that approximately 850 audit the financial statements of approximately We solicit comment on each component 5,587 investment companies. accounting firms audit and review the 27 See American Institute of Certified Public of the proposal. financial statements of approximately Accountants (‘‘AICPA’’), Statement on Auditing IV. Paperwork Reduction Act 20,000 public companies and registered Standards No. (‘‘SAS’’) 96, ‘‘Audit Documentation’; investment companies filing financial Codification of Statements on Auditing Standards Certain provisions of the proposed (‘‘AU’’) 339. GAAS does not specify a required statements with the Commission.26 Each rules contain ‘‘collection of retention period. The documents to be retained under SAS 96 include those indicating the auditing information’’ requirements within the 26 These estimates are based on information in procedures applied, the evidence obtained during meaning of the Paperwork Reduction Commission databases. The number of public the audit, and the conclusions reached by the Act of 1995 (‘‘PRA’’) (44 U.S.C. 3501 et companies includes those filing annual reports and auditor in the engagement. VerDate 0ct<31>2002 16:59 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP3.SGM 27NOP3 71022 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules we estimate that, on average, the costs as well as benefits and will have securities markets is the trust that incremental burden on firms would be an effect on the economy. investors have in the reliability of the no more than one hour for each public We are sensitive to the costs and information used to make voting and company audit client, or approximately benefits imposed by our rules, and we investment decisions. In addition to 15,000 hours.28 have identified certain costs and providing materials for investigations, Pursuant to 44 U.S.C. 3506(c)(2)(B), benefits of these proposals. We request the availability of the documents subject we solicit comments to: (1) Evaluate comments on all aspects of this cost- to the proposed rules might facilitate whether the proposed collections of benefit analysis, including the greater oversight of audits and improved information are necessary for the proper identification of any additional costs or audit quality, which, in turn, ultimately performance of the functions of the benefits. We encourage commenters to could increase investor confidence in agency, including whether the identify and supply relevant data the reliability of reported financial information will have practical utility; concerning the costs or benefits of the information. (2) evaluate the accuracy of the proposed rules. C. Potential Costs of the Proposal Commission’s estimates of the burden of A. Background the proposed collections of information; We estimate that approximately 850 (3) determine whether there are ways to Under section 802 of the Sarbanes- accounting firms audit and review the enhance the quality, utility, and clarity Oxley Act, accountants who audit or financial statements of approximately review an issuer’s financial statements of the information to be collected; and 20,000 public companies and registered must retain certain records relevant to (4) evaluate whether there are ways to investment companies filing financial that audit or review for a period of five minimize the burden of the collections statements with the Commission.29 Each years from the end of the fiscal year in of information on those who are to firm currently is required to perform its which an audit or review was respond, including through the use of audits and reviews in accordance with concluded. The proposed rules would automated collection techniques or generally accepted auditing standards implement this provision and indicate other forms of information technology. (‘‘GAAS’’), which require auditors to the records to be retained, but they do Persons submitting comments on the retain certain documentation of their not require accounting firms to create collection of information requirements work.30 Accounting firms, therefore, should direct the comments to the any new records. The records to be retained would currently make decisions about the Office of Management and Budget, include workpapers and other retention of each record created during Attention: Desk Officer for the documents that form the basis of the the audit or review. GAAS, however, Securities and Exchange Commission, audit or review and memoranda, does not require explicitly that auditors Office of Information and Regulatory correspondence, communications, other retain documents that may ‘‘cast doubt’’ Affairs, Washington, DC 20503, and documents, and records (including on their opinions and GAAS does not should send a copy to Jonathan G. Katz, electronic records), which are created, set definite retention periods. As a Secretary, Securities and Exchange sent or received in connection with the result, the proposed rule might result in Commission, 450 Fifth Street, NW., audit or review, and contain the retention of more records than Washington, DC 20549–0609, with conclusions, opinions, analyses, or currently required under GAAS, and reference to File No. S7–46–02. financial data related to the audit or might result in some accounting firms Requests for materials submitted to review. Records described in the keeping those records for a longer OMB by the Commission with regard to proposed rules would be retained period of time. these collections of information should whether the conclusions, opinions, The Commission, through its be in writing, refer to File No. S7–46– analyses, or financial data in the records experience in matters pertaining to 02, and be submitted to the Securities would support or cast doubt on the final accounting firms, believes that many and Exchange Commission, Records conclusions reached by the auditor. The accounting firms retain records of audits Management, Office of Filings and required retention of audit and review and reviews of the financial statements Information Services. OMB is required records should discourage the of current clients for five or more years. to make a decision concerning the destruction, and assist in the Once an issuer is no longer a client, collection of information between 30 availability, of records that may be some firms currently may dispose of and 60 days after publication of this relevant to investigations conducted those records before the expiration of release. Consequently, a comment to under the securities laws. the proposed five-year period. It is OMB is assured of having its full effect important to note, however, that the if OMB receives it within 30 days of B. Potential Benefits of the Proposed proposed rules do not require the publication. Rules creation of any record; they require only V. Cost—Benefit Analysis The proposed rules would require that existing records be maintained for that certain records relevant to the audit the prescribed time period. It also is The record retention requirements and review of an issuer’s financial important to note that decisions about that we propose would implement a statements be retained for five years. To the retention of records currently are congressional mandate. We recognize the extent that the proposals increase made as a part of each audit or review. that any implementation of the the availability of documents beyond Sarbanes-Oxley Act likely will result in current professional practices, the 29 These estimates are based on information in proposed rules may benefit Commission databases. The number of public 28 This burden accounts for incidental reading investigations and litigation conducted companies includes those filing annual reports and and implementation of the proposed rule. Fifteen those filing to conduct an initial public offering. thousand burden hours should be sufficient to by the Commission and others. The same auditors also audit the financial cover the audits and reviews of not only public Increased retention of these records may statements of approximately 5,587 investment companies but also registered investment provide important evidence of financial companies. companies. Because of the nature and scope of the reporting improprieties or deficiencies 30 See American Institute of Certified Public audits of investment companies, there would be an Accountants (‘‘AICPA’’), Statement on Auditing even smaller and insignificant incremental burden in the audit process. Standards No. (‘‘SAS’’) 96, ‘‘Audit Documentation’; imposed on those audits than on the audits of One of the most important factors in Codification of Statements on Auditing Standards public companies. the successful operation of our (‘‘AU’’) 339. VerDate 0ct<31>2002 16:59 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP3.SGM 27NOP3 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71023 We do not anticipate any significant VI. Consideration of Impact on the review of an issuer’s financial increase in costs for accounting firms or Economy, Burden on Competition, and statements.37 The proposed rules would issuers because the proposed rules do Promotion of Efficiency, Competition, not require accounting firms to create not require the creation of records, and Capital Formation any new records. would not significantly increase For purposes of the Small Business B. Objectives procedures related to the review of Regulatory Enforcement Fairness Act of Our objectives are to implement documents, and minimal, if any, work 1996,32 the Commission is requesting would be associated with the retention section 802 of the Sarbanes-Oxley Act in information regarding the potential order to increase investor confidence in of these records. The disposal of those impact of the proposals on the economy records, which would occur in any the audit process and in the reliability on an annual basis. Commentators of reported financial information. This event, merely would be delayed. In should provide empirical data to addition, because an already large and would be accomplished by defining the support their views. records to be retained related to an audit ever-increasing portion of the records Section 23(a)(2) of the Exchange or review of an issuer’s financial required to be retained are kept Act 33 requires the Commission, when electronically, we do not anticipate that statements. Having these records adopting rules under the Exchange Act, available should enhance oversight of the incremental increase in storage costs to consider the anti-competitive effects corporate reporting and of the for documents would be significant for of any rule it adopts. In addition, performance of auditors and facilitate any firm or for any single audit client. Section 2(b) of the Securities Act of the enforcement of the securities laws. For purposes of the Paperwork 1933,34 Section 3(f) of the Exchange Reduction Act, we estimated the total Act,35 and Section 2(c) of the C. Legal Basis burden to be 15,000 burden hours. Investment Company Act 36 require the We are proposing amendments to Assuming an accounting firm’s average Commission, when engaging in Regulation S–X under the authority set cost of in-house staff is $110 per hour,31 rulemaking that requires it to consider forth in sections 3(a) and 802 of the the total cost would be $1,650,000. or determine whether an action is Sarbanes-Oxley Act, and Schedule A necessary or appropriate in the public and Sections 7, 8, 10, 19 and 28 of the D. Request for Comments interest, to consider whether the action Securities Act, Sections 3, 10A, 12, 13, will promote efficiency, competition, As noted above, we request comments 14, 17, 23 and 36 of the Exchange Act, and capital formation. Sections 5, 10, 14 and 20 of the Public on all aspects of this cost-benefit We believe that the proposed rules Utility Holding Company Act of 1935, analysis, including the identification of would not have an adverse impact on and Sections 8, 30, 31, 32(c) and 38 of any additional costs or benefits. We competition. To the extent the proposed the Investment Company Act of 1940. encourage commenters to identify and rules would increase the quality of supply relevant data concerning the audits and the efficiency of enforcement D. Small Entities Subject to the costs or benefits of the proposed and disciplinary proceedings, there Proposed Rules amendments. We request comments, might be an increase in investor Our rules do not define ‘‘small including supporting data, on the confidence in the efficacy of the audit business’’ or ‘‘small organization’’ for magnitude of the costs and benefits process and the efficiency of the purposes of accounting firms. The Small mentioned in this section. securities markets. Business Administration defines small • Are there any other costs or benefits We request comment on the anti- business, for purposes of accounting that we have not identified? For competitive effects of the proposals. firms, as those with under $6 million in example, would the cost of audits The possible effects of our rule annual revenues.38 We have only increase? Please describe any such costs proposals on efficiency, competition, limited data indicating revenues for and provide relevant data. and capital formation are difficult to accounting firms, and we cannot • quantify. We request comment on these estimate the number of firms with less Are there additional costs related to matters in connection with our than $6 million in revenues that the proposed rules? If there are, please proposed rules. practice before the Commission. We identify them and provide supporting request comment on the number of VII. Initial Regulatory Flexibility Act data. accounting firms with revenue under $6 Analysis • Are there measures that the million that audit issuers’ financial Commission should take, such as This Initial Regulatory Flexibility Act statements. encouraging accounting firms to keep Analysis has been prepared in E. Reporting, Recordkeeping and Other more records electronically, to lower accordance with 5 U.S.C. 603. It relates Compliance Requirements storage costs? to proposed revisions to Regulation S– X. The proposals would require the Under the proposed rules,39 • We request comments on the retention of certain audit and review accountants who audit or review an reasonableness of the burden hours, cost documentation. issuer’s financial statements must retain estimates, and underlying assumptions certain records relevant to that audit or related to the proposed disclosures. A. Reasons for the Proposed Action review for a period of five years from The proposed rules generally carry the end of the fiscal year in which an 31 We estimate that associates would perform out a congressional mandate. The audit or review was concluded. These three-fourths of the required work, with a partner performing about one-fourth of the work. We also proposed rules, in general, would records would include workpapers and estimate that, on average, an associate’s annual prohibit destruction for five years of other documents that form the basis of salary would be approximately $125,000 and a certain records related to the audit or the audit or review and memoranda, partner’s annual compensation would be correspondence, communications, other approximately $500,000. Based on these amounts, 32 Pub. L. No. 104–121, tit. II, 110 Stat. 857 (1996). the in-house cost of an associate’s time would be 33 approximately $65 per hour, and the in-house cost 15 U.S.C. 78w(a)(2). 37 See section 802 of the Sarbanes-Oxley Act. of a partner’s time would be approximately $250 34 15 U.S.C. 77b(b). 38 13 CFR 121.201. per hour. The average hourly rate, therefore, would 35 15 U.S.C. 78c(f). 39 See section 802 of the Sarbanes-Oxley Act of be about $110 per hour ([(3 × $65) + $250] / 4). 36 15 U.S.C. 80a–2(c). 2002. VerDate 0ct<31>2002 16:59 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP3.SGM 27NOP3 71024 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules documents, and records (including 2. The clarification, consolidation, or By amending section 602 to add a electronic records), which are created, simplification of compliance and new discussion at the end of that sent or received in connection with the reporting requirements under the rule section under the Financial Reporting audit or review, and contain for small entities; Release Number (FR–XX) assigned to conclusions, opinions, analyses, or 3. The use of performance rather than the adopting release and including the financial data related to the audit or design standards; and text in the adopting release that review. Records described in the 4. An exemption from coverage of the discusses the final rules, which, if the proposed rules would be retained proposed amendments, or any part proposals are adopted, would be whether the conclusions, opinions, thereof, for small entities. substantially similar to Section II of this analyses, or financial data in the records The Sarbanes-Oxley Act provides the release. would support or cast doubt on the final basis for the requirements and The Codification is a separate conclusions reached by the auditor. The timetables for the proposed record publication of the Commission. It will required retention of audit and review retention rules. The proposed rules are not be published in the Code of Federal records should discourage the designed to require the retention of Regulations. destruction, and assist in the those records necessary for oversight of IX. Statutory Bases and Text of availability, of records that may be the audit process, to enhance the Proposed Amendments relevant to investigations conducted reliability and credibility of financial under the securities laws. statements for all public companies, and We are proposing amendments to The Commission, through its to facilitate enforcement of the Regulation S–X under the authority set experience in matters pertaining to securities laws. forth in sections 3(a) and 802 of the accounting firms, believes that many We considered not applying the Sarbanes-Oxley Act, and Schedule A accounting firms retain records of audits proposals to small accounting firms. We and Sections 7, 8, 10, 19 and 28 of the and reviews of the financial statements believe, however, that investors would Securities Act, Sections 3, 10A, 12, 13, of current clients for longer periods of benefit if accountants subject to the 14, 17, 23 and 36 of the Exchange Act, time than for former clients. proposed record retention rules, We do not anticipate any significant Sections 5, 10, 14 and 20 of the Public regardless of their size, audit all increase in costs for small accounting Utility Holding Company Act of 1935, companies. firms or small issuers because the Sections 8, 30, 31, 32 and 38 of the proposed rules do not require the Currently, we do not believe that it is Investment Company Act of 1940. feasible to further clarify, consolidate, or creation of records, would not List of Subjects in 17 CFR Part 210 significantly increase procedures related simplify the proposed rules for small to the review of documents, and entities. We invite comments, however, Accountants, Accounting. on whether the requirements could be minimal, if any, work would be Text of Proposed Amendments associated with the retention of these simplified or clarified for small records. The disposal of those records, accounting firms. In accordance with the foregoing, which would occur in any event, merely H. Solicitation of Comments Title 17, Chapter II of the Code of would be delayed. In addition, because Federal Regulations is proposed to be We encourage the submission of an already large and ever-increasing amended as follows: comments with respect to any aspect of portion of the records required to be 1. The authority citation for Part 210 this Initial Regulatory Flexibility retained are kept electronically, we do is revised to read as follows: Analysis. Specifically, we request not anticipate that the incremental comments regarding the number of increase in storage costs for documents Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, small entities that may be affected by 77z–2, 77aa(25), 77aa(26), 78j–1, 78l, 78m, would be significant for any firm or for the proposed rules, and the existence or 78n, 78o(d), 78u–5, 78w(a), 78ll(d), 79e(b), any single audit client. nature of the potential impact on those 79j(a), 79n, 79t(a), 80a–8, 80a–20, 80a–29, F. Duplicative, Overlapping or small entities. We also seek comments 80a–30, 80a–31, 80a–37(a), unless otherwise Conflicting Federal Rules on how to quantify the number of small noted. The Commission is not aware of any accounting firms that would be affected 2. By adding § 210.2–06 to read as current rules that duplicate, overlap, or by the proposals, how to quantify the follows: conflict with the proposed rules. The impact of the proposed rules on those firms, and how to lower the cost of § 210.2–06 Retention of audit and review proposed rules contemplate that the records. Board will define ‘‘workpapers,’’ as record retention for small accounting required in section 103 of the Sarbanes- firms. (a) For a period of five years after the Oxley Act. Our proposal is designed to Commenters are requested to describe end of the fiscal period in which an not conflict with the Board’s rule. the nature of any impact and provide accountant concludes an audit or review empirical data supporting the extent of of an issuer’s financial statements to G. Significant Alternatives the impact. Such comments will be which section 10A(a) of the Securities The Regulatory Flexibility Act directs considered in the preparation of the Exchange Act of 1934 (15 U.S.C. 78j– us to consider significant alternatives Final Regulatory Flexibility Analysis, if 1(a)) applies, or of the financial that would accomplish the stated the proposed rules are adopted, and will statements of any investment company objective, while minimizing any be placed in the same public file as registered under section 8 of the significant adverse impact on small comments on the proposed rules. Investment Company Act of 1940 (15 entities. In connection with the U.S.C. 80a–8), the accountant shall VIII. Codification Update proposed amendments, we considered retain workpapers and other documents the following alternatives: The Commission proposes to amend that form the basis of the audit or 1. The establishment of differing the ‘‘Codification of Financial Reporting review, and memoranda, compliance or reporting requirements or Policies’’ announced in Financial correspondence, communications, other timetables that take into account the Reporting Release No. 1 (April 15, documents, and records (including resources of small entities; 1982): electronic records), which: VerDate 0ct<31>2002 16:59 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP3.SGM 27NOP3 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71025 (1) Are created, sent or received in established or adopted by the (d) For the purposes of paragraph (a) connection with the audit or review, Commission or by the Public Company of this section, the term ‘‘issuer’’ means and Accounting Oversight Board. an issuer as defined in section 10A(f) of (2) Contain conclusions, opinions, (c) Materials described in paragraph the Securities Exchange Act of 1934 (15 analyses, or financial data related to the (a) of this section shall be retained U.S.C. 78j–1(f)). audit or review. whether the conclusions, opinions, (b) For the purposes of paragraph (a) analyses, or financial data in the Dated: November 21, 2002. of this section, ‘‘workpapers’’ means materials support or cast doubt on the By the Commission. documentation of auditing or review final conclusions reached by the Margaret H. McFarland, procedures applied, evidence obtained, auditor. For example, such materials Deputy Secretary. and conclusions reached by the shall include documentation of [FR Doc. 02–30036 Filed 11–26–02; 8:45 am] accountant in the audit or review differences of opinion concerning BILLING CODE 8010–01–P engagement, as required by standards accounting and auditing issues. VerDate 0ct<31>2002 16:59 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP3.SGM 27NOP3 Wednesday, November 27, 2002 Part IV Department of Agriculture Forest Service Extension of Currently Approved Information Collection for Special Use Administration; Notice VerDate 0ct<31>2002 17:01 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\27NON2.SGM 27NON2 71028 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices DEPARTMENT OF AGRICULTURE Description of Information Collection officer to evaluate requests, such as noncommercial group gatherings, to use 1. Application Process Forest Service National Forest System lands. These The following describes the requests usually involve First Extension of Currently Approved information collections required for the Amendment rights that require a short, Information Collection for Special Use application process: specific time frame (48 hours) for the Administration a. Title: Form SF–299, Application for agency to approve or deny the request. AGENCY: Forest Service, USDA. Transportation and Utility Systems and Estimate of Burden: 1 hour. Facilities on Federal Lands. ACTION: Type of respondents: Individuals, Notice of intent; request for OMB Number: 0596–0082. comments. groups, organizations. Expiration Date of Approval: Estimated number of respondents: SUMMARY: In accordance with the November 30, 2002. 2,400. Paperwork Reduction Act of 1995, the Type of Request: Extension of Estimated number of responses per Forest Service announces its intent to previously approved information respondent: 1. request an extension of a currently collection. Estimated total annual burden on approved information collection for the Abstract: The information provided respondents: 2,400 hours. administration of special uses on on this form is used by the authorized d. Title: Form FS–27003c, Special Use National Forest System lands. The officer to evaluate the applicant’s Application and Permit for Recreation information helps the Forest Service technical and financial capability, Events. ensure that the authorized use of nature of the proposed operations, and OMB Number: 0596–0082. Federal land is in the public interest anticipated environmental impacts and Expiration Date of Approval: and compatible with the mission of the proposed mitigation of those impacts. November 30, 2002. agency. Respondents will include This form is used for the majority of Type of Request: Extension of individuals, groups, organizations, nonrecreational requests to use National previously approved information businesses, corporations, and Federal, Forest System lands. collection. State, and local governments. Estimate of Burden: 8 hours. Abstract: The information provided Type of respondents: Individuals, DATES: Comments must be received in on this form is used by the authorized businesses, corporations, and Federal, writing on or before January 27, 2003. officer to evaluate requests to use State, and local governments. National Forest System lands for Comments received after that date will Estimated number of respondents: be considered to the extent practical. recreation events. 1,500. Estimate of Burden: 1 hour. ADDRESSES: All comments should be Estimated number of responses per addressed to: Director, Lands Staff (Mail Type of respondents: Individuals, respondent: 1. groups, organizations. Stop 1124), Forest Service, 1400 Estimated total annual burden on Estimated number of respondents: Independence Avenue, SW., respondents: 12,000 hours. 2,000. Washington, DC 20250–1124 or e-mail b. Title: Form FS–27003a, Request for Estimated number of responses per [email protected]. Termination of and Application for respondent: 1. FOR FURTHER INFORMATION CONTACT: Special Use Permit. OMB Number: 0596–0082. Estimated total annual burden on Melissa Hearst, Lands Staff, at (202) respondents: 2,000 hours. 205–1196. Expiration Date of Approval: November 30, 2002. e. Title: Form FS–2700–3e, Special SUPPLEMENTARY INFORMATION: Type of Request: Extension of Use Application and Permit for Background previously approved information Government-Owned Buildings. OMB Number: 0596–0082. The forms described in this request collection. Abstract: The information provided Expiration Date of Approval: for extension of an information November 30, 2002. collection are used by the agency to on this form is used by the authorized officer to facilitate issuance of a new Type of Request: Extension of issue and administer special use permits previously approved information to use or occupy National Forest System authorization when the private improvements authorized on National collection. lands. The data collected will be Abstract: The information provided evaluated by the Forest Service to Forest System lands change ownership. Estimate of Burden: 0.5 hours. on this form is used by the authorized ensure that the authorized use of Type of respondents: Individuals, officer to evaluate requests to utilize, Federal land is in the public interest businesses, and corporations. through a special use permit, and is compatible with the mission of Estimated number of respondents: Government-owned buildings and the agency. The data will help identify 1,000. facilities. environmental and social impacts of Estimated number of responses per Estimate of Burden: 0.25 hours. special uses and will ascertain whether respondent: 1. Type of respondents: Individuals, the agency is receiving a fair market Estimated total annual burden on businesses, corporations, and Federal, rental fee for the use of National Forest respondents: 500 hours. State, and local governments. System lands. The data will be collected c. Title: Form FS–27003b, Special Use Estimated number of respondents: through application forms and Application and Permit for 3,200. stipulations in operating plans and Noncommercial Group Use. Estimated number of responses per special use authorizations. There are OMB Number: 0596–0082. respondent: 1. four general categories of information Expiration Date of Approval: Estimated total annual burden on requests: (1) Initial and amended November 30, 2002. respondents: 800 hours. application process; (2) annual financial Type of Request: Extension of f. Title: Form FS–2700–10, Technical information; (3) preparing and updating previously approved information Data for Communications Uses. operation and maintenance plans; and collection. OMB Number: 0596–0082. (4) compliance reports and information Abstract: The information provided Expiration Date of Approval: updates. on this form is used by the authorized November 30, 2002. VerDate 0ct<31>2002 17:01 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\FM\27NON2.SGM 27NON2 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices 71029 Type of Request: Extension of Type of respondents: Individuals, Type of Request: Extension of previously approved information businesses, corporations, and Federal, previously approved information collection. State, and local governments. collection. Abstract: The information provided Estimated number of respondents: Abstract: The information provided on this form is used by the authorized 100. on this form is used by the authorized officer to evaluate the compatibility of Estimated number of responses per officer to determine the annual rental communications equipment at a respondent: 1. fee due the Federal Government for the communications site to minimize Estimated total annual burden on use of National Forest System lands frequency interference and other respondents: 50 hours. based on gross fixed assets of the entity compatibility problems. 2. Annual Financial Information holding the permit. Estimate of Burden: 0.5 hours. Estimate of Burden: 1 hour. Type of respondents: Individuals, Title V of the Federal Land Policy and Type of respondents: Individuals, businesses, corporations, and Federal, Management Act of 1976, the businesses, corporations, groups, and State, and local governments. Independent Offices Appropriation Act organizations. Estimated number of respondents: of 1952, and the Office of Management Estimated number of respondents: 500. and Budget Circular A–25 require the 275. Estimated number of responses per Forest Service to collect rental fees that Estimated number of responses per respondent: 1. reflect fair market value for the use of respondent: 1. Estimated total annual burden on National Forest System lands. Special Estimated total annual burden on respondents: 250 hours. use authorizations may contain specific respondents: 275 hours. g. Title: Form FS–6500–24, Financial terms and conditions requiring the c. Title: Form FS–2700–10a, Statement. holder to provide the authorized officer Telecommunications Facility Inventory. OMB Number: 0596–0082. with the information necessary to OMB Number: 0596–0082. Expiration Date of Approval: calculate fair market value rental fees. Expiration Date of Approval: November 30, 2002. Procedures for how the information is November 30, 2002. Type of Request: Extension of provided and when it is required are Type of Request: Extension of previously approved information contained in the authorization terms previously approved information collection. and conditions. Information requests for collection. Abstract: The information provided financial information are provided to Abstract: The information provided on this form is used by the authorized the authorized officer in a variety of on this form is used by the authorized officer to evaluate the financial ways. Several examples include gross officer to determine the annual rental capability of an applicant to undertake revenues, value of capital for a communications facility based on the requested use and to comply with improvements, number of trips and/or the number of tenants in that facility. the terms and conditions of an customers served, or a listing of This form provides the authorized authorization if issued. This form is occupants in a communications site officer with that information. used primarily for requests to operate building. Government-owned campgrounds, or Estimate of Burden: 1 hour. The following describes the Type of respondents: Individuals, requests for ski or resort area use on information collections required to National Forest System lands. businesses, corporations, and State, and obtain financial information: local governments. Estimate of Burden: 8 hours. a. Title: Form FS–2700–7, Estimated number of respondents: Type of respondents: Individuals, Reconciliation of Sales for Fee 3,000. businesses, corporations, and Federal, Calculation. Estimated number of responses per State, and local governments. OMB Number: 0596–0082. Estimated number of respondents: Expiration Date of Approval: respondent: 1. 100. November 30, 2002. Estimated total annual burden on Estimated number of responses per Type of Request: Extension of respondents: 3,000 hours. respondent: 1. previously approved information d. Title: Form FS–2700–19, Fee Estimated total annual burden on collection. Calculation for Concession Permits. respondents: 800 hours. Abstract: The information provided OMB Number: 0596–0082. h. Title: Form FS–6500–25, Request on this form is used by the authorized Expiration Date of Approval: for Verification. officer to determine the annual rental November 30, 2002. OMB Number: 0596–0082. fee due the Federal Government for the Type of Request: Extension of Expiration Date of Approval: use of National Forest System lands. previously approved information November 30, 2002. Estimate of Burden: 1 hour. collection. Type of Request: Extension of Type of respondents: Individuals, Abstract: The information provided previously approved information businesses, corporations, groups, and on this form is used by the authorized collection. organizations. officer to determine the annual rental Abstract: The information provided Estimated number of respondents: fee due the Federal Government for on this form is used by the authorized 275. concession permits. officer to evaluate the financial Estimated number of responses per Estimate of Burden: 1 hour. capability of an applicant to undertake respondent: 1. Type of respondents: Individuals, the requested use and to comply with Estimated total annual burden on businesses, corporations, groups, and the terms and conditions of an respondents: 275 hours. organizations. authorization if issued. This form is b. Title: Form FS–2700–8, Estimated number of respondents: used primarily for requests to operate Reconciliation of Gross Fixed Assets 275. Government-owned campgrounds, or (GFA) to Booked Amounts. Estimated number of responses per requests for ski area or resort area use OMB Number: 0596–0082. respondent: 1. on National Forest System lands. Expiration Date of Approval: Estimated total annual burden on Estimate of Burden: 0.5 hours. November 30, 2002. respondents: 275 hours. VerDate 0ct<31>2002 17:01 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 E:\FR\FM\27NON2.SGM 27NON2 71030 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Notices e. Title: Form FS–2700–19a, USDA Type of Request: Extension of resources and public health and safety. Forest Service Fee Calculation For Ski previously approved information Examples of compliance and Area Permits. collection. information requests include dam OMB Number: 0596–0082. Abstract: Special use authorizations maintenance inspection reports and logs Expiration Date of Approval: may contain a clause requiring the required by the Reclamation Safety of November 30, 2002. holder of a special use authorization to Dams Act of 1978, the Federal Dam Type of Request: Extension of prepare or update an operation and Safety Inspection Act of 1979, and the previously approved information maintenance plan, when the authorized Dam Safety Act of 1983; documentation collection. officer determines that the day-to-day that authorized facilities passed safety Abstract: The information provided operations of the use authorized need to inspections; documentation showing on this form is used by the authorized be specified. This information is useful that the United States is covered in an officer to determine the annual rental to the holder of the special use insurance policy; notifications involving fee due the Federal Government for ski authorization and the Forest Service changes in corporation or partnership area permits. because it outlines procedures and status; and documentation of Estimate of Burden: 1 hour. policies used while the holder conducts compliance with nondiscrimination in Type of respondents: Individuals, operations or business on National Federally assisted programs as required businesses, corporations, groups, and Forest System lands. Typically, by title VI and VII of the Civil Rights Act organizations. operation and maintenance plans of 1964. Estimated number of respondents: contain daily operating guidelines, fire Estimate of Burden: 1 hour. 100. abatement and control procedures, Type of respondents: Individuals, Estimated number of responses per monitoring guidelines, maintenance businesses, corporations, groups, and respondent: 1. standards, safety and emergency plans, organizations, Federal, State, and local Estimated total annual burden on inspection standards and frequencies, governments. respondents: 100 hours. and so forth. Operation and Estimated number of respondents: f. Title: Business Practices (no specific maintenance plans are not required for 13,500. all special use authorizations, but are agency form for this information Estimated number of responses per usually necessary for complex request). respondent: 1. operations, commercial uses, and OMB Number: 0596–0082. Estimated total annual burden on situations involving sensitive Expiration Date of Approval: respondents: 13,500 hours. November 30, 2002. environmental areas. Type of Request: Extension of Estimate of Burden: 1 hour. Comments Are Invited Type of respondents: Individuals, previously approved information The agency invites comments on the collection. businesses, corporations, groups, and organizations, Federal, State, and local following: (a) Whether the proposed Abstract: The information is provided collection of information is necessary by the authorization holder to the governments. Estimated number of respondents: for the proper performance of the agency when requested by the functions of the agency, including authorized officer or as a term and 35,000. Estimated number of responses per whether the information will have condition of the authorization. There is respondent: 1. practical utility; (b) the accuracy of this no specific form involved. The holder- Estimated total annual burden on agency’s estimate of the burden of the provided information is usually respondents: 35,000 hours. proposed collection of information; (c) maintained in a form that is customary ways to enhance the quality, utility, and for the type of business. 4. Compliance Reports and Information clarity of the information to be Estimate of Burden: 1 hour. Updates collected; and (d) ways to minimize the Type of respondents: Individuals, The following describes the burden of the collection of information businesses, corporations, groups, and information collection required to on respondents, including the use of organizations. obtain compliance reports and automated collection techniques or Estimated number of respondents: information updates: other forms of information technology. 1,675. Title: There is no specific agency form Estimated number of responses per for this information collection. Use of Comments respondent: 1.5. OMB Number: 0596–0082. All comments received in response to Estimated total annual burden on Expiration Date of Approval: this notice, including names and respondents: 2,513 hours. November 30, 2002. addresses when provided, will be a Type of Request: Extension of 3. Preparing and Updating Operation matter of public record. In submitting previously approved information and Maintenance Plans this proposal to the Office of collection. Management and Budget for approval, The following describes the Abstract: Special use authorizations the Forest Service will summarize and information collection required to may contain specific terms and respond to comments received. prepare and update an operation and conditions requiring the holder to maintenance plan: provide the authorized officer with Dated: November 21, 2002. Title: There is no specific agency form compliance reports, information reports, Abigal R. Kimbell, for this information request. and other information required by Associate Deputy Chief, National Forest OMB Number: 0596–0082. Federal law or required to properly System. Expiration Date of Approval: manage National Forest System lands to [FR Doc. 02–30018 Filed 11–26–02; 8:45 am] November 30, 2002. ensure adequate protection of forest BILLING CODE 3410–11–P VerDate 0ct<31>2002 17:01 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 E:\FR\FM\27NON2.SGM 27NON2 Wednesday, November 27, 2002 Part V Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Arizona Distinct Population Segment of the Cactus Ferruginous Pygmy-owl (Glaucidium brasilianum cactorum); Proposed Rule VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\27NOP4.SGM 27NOP4 71032 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules DEPARTMENT OF THE INTERIOR DATES: We will accept comments until the Mexican States of Tamaulipas and February 25, 2003. We will hold one Nuevo Leon. Only the Arizona Fish and Wildlife Service public hearing on this proposed rule; we population of the pygmy-owl is listed as have scheduled the hearing for January an endangered species (62 FR 10730; 50 CFR Part 17 23, 2003, from 6:30 p.m. to 9:00 p.m. in March 10, 1997). RIN 1018–AI48 the Leo Rich Theatre at the Tucson The total number of pygmy-owls and Convention Center in Tucson, AZ. their distribution in Arizona are Endangered and Threatened Wildlife ADDRESSES: Send comments and unknown. Survey and monitoring work and Plants; Designation of Critical information to the Field Supervisor, in Arizona resulted in documenting 41 Habitat for the Arizona Distinct Arizona Ecological Services Office, 2321 adult pygmy-owls in 1999, 34 in 2000, Population Segment of the Cactus West Royal Palm Road, Suite 103, 36 in 2001, and, most recently, 18 in Ferruginous Pygmy-owl (Glaucidium Phoenix, AZ 85021. Written comments 2002. A cumulative total of 85 occupied brasilianum cactorum) may also be sent by facsimile to 602/ sites (includes both single or paired 242–2513 or by electronic mail (email) birds) were recorded during these 4 AGENCY: Fish and Wildlife Service, _ years (Abbate et al. 1999, 2000, AGFD Interior. to cfpo [email protected]. Copies of the draft economic analysis are available on unpubl. data). Most of these pygmy- ACTION: Proposed rule; notice of the Internet at http:// owls were distributed in four general availability. ifw2irm2.irml.r2.fws.gov/, by writing the areas: northwest Tucson, southern Pinal County, Organ Pipe Cactus National SUMMARY: We, the U.S. Fish and Field Supervisor at the above address, Monument, and the Altar Valley. We Wildlife Service, propose designation of or by calling 602/242–0210 to have a believe that more pygmy-owls exist in critical habitat pursuant to the copy mailed to you or that you may pick Arizona, but systematic surveys have Endangered Species Act of 1973, as up at the address above. Comments and not been conducted in all areas of amended (Act), for the cactus materials received will be available for public inspection, by appointment, potential habitat. ferruginous pygmy-owl (Glaucidium In addition, recent survey information during normal business hours at the brasilianum cactorum) (pygmy-owl). has shown pygmy-owls to be more above address. The public hearing will Information on the biological needs of numerous adjacent to and near the the pygmy-owl that would help us be held in the Leo Rich Theatre at the Arizona border in Mexico (Flesch and define areas essential to its conservation Tucson Convention Center at 206 South Steidl 2000). There also exists is limited. However, we must respond to Church Avenue, Tucson, AZ, 85701. considerable unsurveyed habitat on the a court order issued on September 21, FOR FURTHER INFORMATION CONTACT: Tohono O’odham Nation, and, although 2001, vacating critical habitat Steve Spangle, Field Supervisor (see we have no means of quantifying this established for the pygmy-owl and ADDRESSES) (telephone 602/242–0210; habitat, the distribution of recent remanding the previous designation of facsimile 602/242–2513). sightings on non-Tribal areas east, west, critical habitat for preparation of a new SUPPLEMENTARY INFORMATION: and south of the U.S. portion of the analysis of the economic and other Background Tohono O’odham Nation lead us to effects of the designation (National reasonably conclude that these Tribal Association of Home Builders et al. v. The cactus ferruginous pygmy-owl lands may support meaningful numbers Norton, Civ.–00–903–PHX–SRB). This (Glaucidium brasilianum cactorum) of pygmy-owls. Consequently, we proposed designation, totaling (pygmy-owl) is in the order Strigiformes believe that it is highly likely that the approximately 488,863 hectares (ha) and the family Strigidae. It is a small overall pygmy-owl population in (1,208,001 acres (ac)), includes portions bird, approximately 17 centimeters (cm) Arizona is maintained by the movement of Pima and Pinal Counties, Arizona, (6.75 inches (in)) long. Males average 62 and dispersal of owls among groups of and includes approximately 9 percent of grams (g) (2.2 ounces (oz)), and females pygmy-owls in southern Arizona and the recognized historical range of the average 75 g (2.6 oz). The pygmy-owl is northern Mexico resulting from the pygmy-owl in Arizona. If this proposal reddish brown overall, with a cream- connectivity of suitable habitat. The is made final, section 7 of the Act would colored belly streaked with reddish extent to which pygmy-owls disperse prohibit destruction or adverse brown. Color may vary, with some across the U.S./Mexico border is modification of critical habitat by any individuals being more grayish brown. unknown. Therefore, addressing habitat activity funded, authorized, or carried The crown is lightly streaked, and a pair connectivity and the movements of out by any Federal agency. As required of black/dark brown spots outlined in pygmy-owls within Arizona is the by section 4 of the Act, we will consider white occur on the nape suggesting primary consideration of this proposal economic and other relevant impacts ‘‘eyes.’’ This species lacks ear tufts, and due to the importance of maintaining prior to making a final decision on the the eyes are yellow. The tail is relatively dispersal and movement among pygmy- size and configuration of critical habitat. long for an owl and is colored reddish owl groups. We also announce the availability of the brown with darker brown bars. The Given recent data, it is probable that draft economic analysis conducted on pygmy-owl is primarily diurnal (active conservation of the pygmy-owl in the proposed designation of critical during daylight) with crepuscular Arizona requires both sufficient habitat for the pygmy-owl. We solicit (active at dawn and dusk) tendencies. numbers and productivity of pygmy- data and comments from the public on They can be heard making a long, owls north of the border and all aspects of this proposal, including monotonous series of short, repetitive immigration of pygmy-owls from data on economic and other impacts of notes, mostly during the breeding Mexico into Arizona, although we do the designation. We may revise this season. not know at this time to what extent proposal to incorporate or address new The pygmy-owl is one of four immigration does or needs to occur. information received during the subspecies of the ferruginous pygmy- The patchy, dispersed nature of the comment period. We expect to publish owl. It occurs from lowland central pygmy-owl population in Arizona a notice making the draft pygmy-owl Arizona south through western Mexico suggests that the overall population may recovery plan available for public to the States of Colima and Michoacan, function as a metapopulation. A comment in November 2002. and from southern Texas south through metapopulation is a set of VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71033 subpopulations within an area, where vegetation diversity than random sites soliciting and reviewing additional movement and exchange of individuals (Wilcox et al. 2000). Overall vegetation information, we elevated the pygmy-owl among population segments is possible, density may not be as important as to category 1 status throughout its range but not routine. A metapopulation’s patches of dense vegetation with a in our November 21, 1991, Notice of persistence depends on the combined developed canopy layer interspersed Review (56 FR 58804). Category 1 dynamics of the productivity of with open areas. Vegetation structure candidates were defined as those taxa subpopulations, the maintenance of may be more important than species for which we had sufficient information genetic diversity, the availability of composition (Wilcox et al. 1999, Cartron on biological vulnerability and threats suitable habitat for maintenance and et al. 2000). This is related to the fact to support proposed listing rules but for expansion of subpopulations, and the that canopy cover and layers of which issuance of proposals to list were ‘‘rescue’’ of subpopulations that have vegetation provide hunting perches, precluded by other higher-priority experienced local extinctions by the thermal cover, and promote predator listing activities. Beginning with our subsequent recolonization of these areas avoidance regardless of species. Larger combined plant and animal Notice of by dispersal from adjacent population trees with greater canopy also have a Review of February 28, 1996 (61 FR segments (Hanski 1999, Hanski and greater potential to support cavities 7596), we discontinued the designation Gilpin 1991, 1997). The local groups of needed for nesting. Flesch (1999) of multiple categories of candidates, and pygmy-owls within Arizona may indicated that areas with large trees and only taxa meeting the definition of function as subpopulations within the canopy coverage are likely important former category 1 candidates are now context of metapopulation theory. areas for pygmy-owls in the Altar recognized as candidates for listing However, more information is needed Valley. Riparian and xeroriparian (dry purposes. regarding the population dynamics of washes) areas, which are often used by On May 26, 1992, a coalition of pygmy-owls in Arizona. pygmy-owls, are generally characterized conservation organizations (Galvin et al. Historically, pygmy-owls were by increased vegetation layers, higher 1992) petitioned us to list the pygmy- recorded in association with riparian plant diversity and larger tree sizes owl as an endangered species under the woodlands in central and southern because of increased moisture Act. In accordance with section Arizona (Bendire 1892, Gilman 1909, availability. 4(b)(3)(A) of the Act, on March 9, 1993, Johnson et al. 1987). Plants present in Background information on the we published a finding that the petition these riparian communities included ecology and life history of pygmy-owls presented substantial scientific or cottonwood (Populus fremontii), willow relied on many of the documents commercial information indicating that (Salix spp.), ash (Fraxinus velutina), and reviewed during the proposed listing listing of the pygmy-owl may be hackberry (Celtis spp.). However, recent (59 FR 63975; December 12, 1994) and warranted and commenced a status records have documented pygmy-owls final listing (62 FR 10730; March 10, review of the subspecies (58 FR 13045). in a variety of vegetation communities 1997) and our previous designation of As a result of information collected and such as riparian woodlands, mesquite critical habitat (64 FR 37419; July 12, evaluated during the status review, (Prosopis velutina, and P. glandulosa) 1999). We have also reviewed biological including information collected during bosques (Spanish for woodlands), data from pygmy-owl studies made a public comment period, we proposed Sonoran desertscrub, semidesert available since the previous designation to list the pygmy-owl as endangered grassland, and Sonoran savanna (Abbate et al. 1999, 2000, Cartron and with critical habitat in Arizona and grassland communities (see Brown 1994 Finch 2000, Proudfoot and Johnson threatened in Texas (59 FR 63975; for a description of these vegetation 2000, Wilcox, et al. 2000). Since the December 12, 1994). After a review of communities). While native and previous designation of critical habitat, all comments received in response to nonnative plant species composition there were very few new references that the proposed rule, we published a final differs among these communities, there provided additional information on rule listing the pygmy-owl as are certain unifying characteristics such characteristics of pygmy-owl habitat. endangered in Arizona (62 FR 10730; as the presence of vegetation in fairly None of the new biological data March 10, 1997). In that final rule we dense thickets or woodlands, the contradicted previous studies on the determined that listing in Texas was not presence of trees, saguaros (Carnegiea ecology of the subspecies; however, warranted and that critical habitat giganteus), or organ pipe cactus these studies have refined our designation for the Arizona population (Stenocereus thurberi) large enough to understanding of the pygmy-owl’s was not prudent. support cavities for nesting, and ecology. The information above On October 31, 1997, the Southwest elevations below 1,200 meters (m) summarizes the key elements of the Center for Biological Diversity filed a (4,000 feet (ft)) (Swarth 1914, Karalus pygmy-owl’s habitat that are pertinent lawsuit in Federal District Court in and Eckert 1974, Monson and Phillips to the designation of critical habitat. Arizona against the Secretary of the 1981, Johnsgard 1988, Enriquez-Rocha Additional information on the biology Department of the Interior for failure to et al. 1993, Proudfoot and Johnson of the pygmy-owl is contained in the designate critical habitat for the pygmy- 2000). Large trees provide canopy cover ‘‘Primary Constituent Elements’’ section owl and a plant, Lilaeopsis and cavities used for nesting, while the of this rule. schaffneriana var. recurva, (Huachuca density of mid- and lower-story water umbel) (Southwest Center for Previous Federal Actions vegetation provides foraging habitat and Biological Diversity v. Babbitt, CIV 97– protection from predators, and it We included the pygmy-owl in our 704 TUC ACM). On October 7, 1998, contributes to the occurrence of prey Animal Notice of Review as a category Alfredo C. Marquez, Senior U.S. District items (Wilcox et al. 2000). 2 candidate species throughout its range Judge, issued an order that, along with The density of trees and the amount on January 6, 1989 (54 FR 554). Category subsequent clarification from the Court, of canopy cover preferred by pygmy- 2 candidates were defined as those taxa required proposal of critical habitat by owls in Arizona has not been fully for which we had data indicating that December 25, 1998, followed by a final defined. However, preliminary results listing was possibly appropriate but for determination 6 months later. from a habitat selection study indicate which we lacked substantial In September 1998, we appointed the that nest sites tend to have a higher information on vulnerability and threats Cactus Ferruginous Pygmy-owl degree of canopy cover and higher to support proposed listing rules. After Recovery Team (Recovery Team), VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 71034 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules comprised of biologists (pygmy-owl strategy for the pygmy-owl. We the economic impact, and any other experts and raptor ecologists) and reviewed and considered the pertinent relevant impact, of specifying any representatives from affected and information contained in the current particular area as critical habitat. We interested parties (i.e., Federal and State draft recovery plan in developing this may exclude areas from critical habitat agencies, local governments, the Tohono proposed critical habitat designation designation when the benefits of O’odham Nation, and private groups). because it represents the best scientific exclusion outweigh the benefits of On December 30, 1998, we proposed data available to us. We are required to including the areas within critical to designate critical habitat in Arizona base listing and critical habitat habitat, provided the exclusion will not for the pygmy-owl (63 FR 71820). On decisions on the best scientific and result in the extinction of the species. April 15, 1999, we released the draft commercial data available at the time Critical habitat receives protection economic analysis on proposed critical (16 U.S.C. § 1533(b)(1)(A)). We may not from the prohibition against destruction habitat and reopened the public delay making our determinations until or adverse modification through comment period for 30 days (64 FR more information is available, nor can required consultation under section 7 of 18596). On July 12, 1999, we published we be required to gather more the Act with regard to actions carried our final critical habitat determination information before making our out, funded, or authorized by a Federal (64 FR 37419), essentially designating determination (Southwest Center for agency. Section 7 also requires the same areas as were proposed. Biological Diversity v. Babbitt, 215 F. 3d conferences on Federal actions that are On January 9, 2001, a coalition of 58 (D.C. Cir. 2000)). This proposal relies likely to result in the adverse plaintiffs filed a lawsuit with the upon the best scientific and commercial modification or destruction of proposed District Court of Arizona challenging the data available to us including the critical habitat. Where Federal agency validity of the Service’s listing of the biological and habitat information action is involved, such as in permitting Arizona population of the pygmy-owl as described in the draft recovery plan, and or funding, critical habitat designation an endangered species and the recognized principles of conservation can affect private landowners, State, or designation of its critical habitat. On biology. However, the proposed Tribal activities. Aside from the added September 21, 2001, the Court upheld designation does not include all areas protection provided under section 7, the the listing of the pygmy-owl in Arizona which are identified in the draft Act does not provide other forms of but, at our request, and without recovery plan. Instead this proposed protection to lands designated as critical otherwise ruling on the critical habitat critical habitat designation includes habitat. issues, remanded the designation of only those areas that we consider Areas outside the critical habitat critical habitat for preparation of a new essential to the conservation of the designation have been, and will analysis of the economic and other species. continue to be, subject to conservation effects of the designation (National actions that may be implemented under Association of Home Builders et al. v. Critical Habitat section 7(a)(1), the species’ regulatory Norton, Civ.–00–0903–PHX–SRB). The Critical habitat is defined in section 3 protections afforded by the section Court also vacated the critical habitat of the Act as—(i) the specific areas 7(a)(2) jeopardy standard (see ‘‘Effects of designation during the remand. within the geographic area occupied by Critical Habitat Designation’’ section Subsequently the court ordered that we a species, at the time it is listed in below), and the section 9 take submit the proposed rule to the Federal accordance with the Act, on which are prohibition. Federally funded, Register on or before November 15, found those physical or biological permitted or implemented projects 2002, and that we must issue a final rule features (I) essential to the conservation affecting listed species outside their by July 31, 2003. The plaintiff’s appeal of the species and (II) that may require designated critical habitat areas may of the listing decision is still pending. special management consideration or still result in jeopardy findings in some protection and; (ii) specific areas cases. Similarly, critical habitat Draft Recovery Plan outside the geographic area occupied by designations made on the basis of the Restoring an endangered or a species at the time it is listed, upon best available information at the time of threatened species to the point where it determination that such areas are designation will not control the is recovered is a primary goal of our essential for the conservation of the direction and substance of future Endangered Species Program. To help species. Regulations at 50 CFR 424.12(e) recovery plans, habitat conservation guide the recovery effort, we prepare further state that areas outside the plans (HCPs) under section 10 of the recovery plans for most of the listed geographical area presently occupied by Act, or other species conservation species native to the United States. the species will only be designated if planning efforts if new information Recovery plans describe actions presently occupied areas are insufficient available to these planning efforts calls considered necessary for conservation of to ensure the conservation of the for a different outcome. the species, establish criteria for species. The term ‘‘conservation,’’ as downlisting or delisting them, and defined in section 3(3) of the Act and in Methods estimate time and cost for implementing 50 CFR 424.02(c), means ‘‘to use and the In determining areas that are essential the recovery measures needed. A final use of all methods and procedures for the conservation of the pygmy-owl recovery plan formalizes the recovery which are necessary to bring any in Arizona, we used the best scientific strategy for a species, but is not a endangered species or threatened information available. This information regulatory document (i.e., recovery species to the point at which the includes habitat descriptions and plans are advisory documents because measures provided pursuant to this Act pygmy-owl life history information there are no specific protections, are no longer necessary’’ (i.e., the including: Abbate et al. 1999, 2000, prohibitions, or requirements afforded species is recovered and removed from Cartron and Finch 2000, Proudfoot and to a species based solely on a recovery the list of endangered and threatened Johnson 2000, Wilcox, et al. 2000. plan). species). Additional information to identify and In September 2002, the Recovery Section 4(b)(2) of the Act requires that define specific habitat needs of pygmy- Team developed a proposal for the we base critical habitat proposals upon owls in Arizona has been gathered since current draft of the recovery plan which the best scientific and commercial data our initial critical habitat designation in outlines a recommended recovery available, after taking into consideration 1999, including surveys and research by VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71035 the Arizona Game and Fish Department proposed for designation also include sites through dispersal. The average (AGFD). Data from project clearance those sites where pygmy-owls were dispersal distance is a measure of surveys conducted by private documented between 1993 and 1997. In central tendency which increases the consultants were also used to help in order to maintain genetic and likelihood that the area will actually be our understanding of pygmy-owl demographic interchange that will help used by dispersing juvenile pygmy- distribution. We also considered maintain the viability of what may be a owls, unlike the maximum or minimum preliminary habitat assessment work regional metapopulation of pygmy-owls, distances which are extremes and more which has been initiated in limited we included habitat linkages that allow likely to be chance events. In addition, areas of the State, primarily on Bureau movement and dispersal among the most (10 out of 16) measured dispersal of Land Management (BLM) and U.S. areas supporting pygmy-owls. Dispersal distances were below the average, Forest Service (FS) lands, and initial is the straight line distance a juvenile indicating that using the average micro-habitat research studies have pygmy-owl travels from its nest to the dispersal distance accounts for the been conducted by the AGFD. site where it becomes resident. Finally, distance documented as typically being Unpublished data gathered by the AGFD we recognize that maintenance of a used by dispersing pygmy-owls (AGFD with regard to dispersal, numbers, and viable pygmy-owl population in unpubl. data). Areas proposed for distribution of pygmy-owls were also Arizona is likely dependent upon connectivity that fall outside the average considered. immigration from the population in dispersal distance are still essential for The number of known pygmy-owls in Sonora, Mexico, and that maintaining pygmy-owls and could potentially be the State remains relatively few, and the habitat through which pygmy-owls can used for dispersal as all proposed areas information base regarding the needs of move between Mexico and the northern of critical habitat also fall within the this species is still small. This portion of the Arizona range is essential maximum dispersal distance 34.8 km necessitated our reliance on limited to the Arizona population’s (21.8 mi) from recent, verified owl information as we developed this conservation. locations and are considered occupied critical habitat proposal. Recent survey This critical habitat proposal includes as described below. data indicate that the majority of known four of the five areas recommended by We have proposed an interconnected pygmy-owls in Arizona are found in the the Recovery Team as Special system of habitat linkages. All proposed southern portion of its historical range Management Areas (SMAs). The fifth Critical Habitat Units (CHUs) support in the State (Abbate et al. 1996, 1999, SMA was not included based on the nesting and dispersal habitat or are 2000, AGFD unpubl. data). Specifically, lack of recent verified pygmy-owl within documented pygmy-owl surveys that have been conducted have locations in that area, our inability to dispersal distances, and thus are likely produced no recent (since 1997) records determine if the SMA included the to be used by dispersing pygmy-owls of pygmy-owls in the northern and primary constituent elements described during certain seasons or years. Because eastern periphery of the historical range, in this rule, and the Recovery Team’s the areas included in this proposal are such as the riparian habitats along the description of this area as needing likely to be used by pygmy-owls for Gila, San Pedro, and Salt Rivers, further investigation to confirm its role breeding, feeding, sheltering, or although the survey effort in these areas in recovery. SMAs are those portions of dispersing, we considered them to be has not been extensive nor systematic in certain Recovery Areas (Recovery Areas within the geographic area occupied by nature. Most surveys are conducted for 1, 2, and 3) that the Recovery Team the species. As with other raptor species project-related purposes; therefore, the recommended, and we concur, as (Call 1979), pygmy-owl nest sites and vast majority of surveys have occurred needing special management based occupied territories can vary from year in the NW Tucson area where the primarily on imminent and significant to year over the landscape, as well as greatest amount of development is threats, but also on occupancy by owls within a pygmy-owl’s home range occurring within the current range of and habitat function (nesting, dispersal, (Abbate 1999, 2000, AGFD unpubl. the pygmy-owl. etc.). The defining characteristics of the data). Information on raptors indicates We reviewed survey information from SMAs, i.e., they provide some necessary that it is not uncommon for sites to be Arizona and have emphasized those function for pygmy-owls and are under occupied, become vacant, and then be areas that contain recent (since 1997), imminent and significant threats, reoccupied over time (Woodbridge and verified (per AGFD recommended indicate that regulation may play an Detrich 1994, Reynolds et al. 1994). criteria) records of pygmy-owls in important role in the conservation of Therefore, although a specific site may Arizona. Thus, when we refer generally these areas. Any portion of an SMA that be unoccupied at one point in time, it to verified sites within the text of this is included in this proposal, but does may be occupied at a different point in rule, we are referring to sites not contain the primary constituent time, particularly given that all the areas documented since 1997. We determined elements, is excluded from critical proposed as critical habitat are below that using sites documented since 1997 habitat by definition. 1,200 m (4,000 ft) and include one or would ensure that this proposed Generally, the proposed system of more of the primary constituent designation of critical habitat is based critical habitat was developed based on elements related to vegetation, except on the most recent data that most recent, verified owl sites, the presence for the few locations without primary closely represents the current status of of areas that are below 1,200 m (4,000 constituent elements that we were the pygmy-owl. Survey effort has been ft) and include one or more of the unable to exclude explicitly due to the most consistent and extensive since primary constituent elements related to mapping constraints. the listing of the pygmy-owl in 1997. As vegetation (see discussion below), the Habitat linkages within the historical noted below, a priority action within the average straight-line dispersal distance range of the pygmy-owl in Arizona can draft Recovery Plan is to provide (8 km (5 mi)) from nest sites (AGFD play a pivotal role in maintaining this protection for all verified sites of unpubl. data), and the SMAs described potential Arizona metapopulation, pygmy-owls in Arizona since 1993. Our above. The average dispersal distance especially since the pygmy-owl is emphasis in protecting recent (since was used to define the area that is likely capable of dispersal up to 34.8 km (21.8 1997) verified sites of pygmy-owls is, to be necessary for the maintenance of mi) (AGFD unpubl. data). We believe nonetheless, consistent with the draft existing breeding locations through that habitat linkages will provide Recovery Plan in that the areas we have mate replacement and reoccupation of connections for the movement of VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 71036 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules dispersing pygmy-owls among local data), substantiating their potential use land-cover information), plus the groups of pygmy-owls on the Tohono by dispersing young from known difficulty in legally describing particular O’odham Nation, in the Altar Valley, on pygmy-owl sites. patterns of vegetation, precluded us Organ Pipe Cactus National Monument, This proposed designation does not from mapping critical habitat in in northwest Tucson, and in Pinal include all lands identified as Recovery sufficient detail to exclude all such County. We also believe that this Areas in the draft Recovery Plan, nor areas. Therefore, the 1,208,001 acres interconnected matrix will allow the does it include all areas previously within the boundaries does not potential immigration of pygmy-owls designated as critical habitat (64 FR represent critical habitat acreage; only from Mexico to help maintain the 37419; July 12, 1999). Some areas have areas within the geographic boundaries Arizona population. Although habitat been added based on pygmy-owl that are below 1,200 m (4,000 ft) and that allows for dispersal may be locations documented since the include one or more of the primary marginal for nesting, we believe it can previous designation. Areas not being constituent elements related to provide roosting, perching, foraging, proposed for designation that are vegetation are actually critical habitat. and predator avoidance habitat and identified within the draft recovery plan Thus, lands without the primary maintains an important linkage function or that were included in the previous constituent elements are excluded from among blocks of nesting habitat both designation have been excluded based proposed critical habitat by definition. within local groups of pygmy-owls and on the lack of survey and research However, these lands account for a very throughout the overall range of the information sufficient to allow our small proportion of the total proposed pygmy-owl in Arizona. determination that they are essential to designated area. We request that peer Without habitat linkages, the overall the conservation of the species in reviewers who are familiar with this population of pygmy-owls in Arizona Arizona. Changes reflected in this species review the proposed rule (see has is likely to become fragmented to proposal as compared to the previous ‘‘Peer Review’’ section below) in order the extent that individuals may be designation resulted from a refinement to ensure that we have identified those unable to disperse and find mates and of our understanding of the current areas that are essential for the suitable blocks of nesting habitat. numbers and distribution of pygmy- conservation of the pygmy-owl, and Additionally, adequate habitat must be owls. We are not proposing to include avoided designating unsuitable habitat available to allow survival of juvenile all draft recovery areas nor all areas inappropriately. pygmy-owls and their recruitment as from the previous designation because breeding adults. We believe this is (1) they do not include any recent, Primary Constituent Elements essential for maintaining the current verified locations of pygmy-owls; (2) In accordance with section 3(5)(A)(i) population and hope that this approach they do not fall within the average of the Act and regulations at 50 CFR will facilitate expansion of local dispersal distance (8 km (5 mi)) from § 424.12, in determining which areas to populations. In particular, enlargement recent, verified pygmy-owl locations; (3) propose as critical habitat, we consider of small, local groups of pygmy-owls by the draft recovery plan indicates that those physical and biological features expansion onto adjacent lands would some of these areas are in need of that are essential to the conservation of not only increase the chances of their further research (i.e., surveys, habitat the species and, within areas currently long-term survival, but would also assessment, etc.) and may be used for occupied by the species, that may improve connectivity among local possible augmentation activities, not to require special management populations by enhancing their value as protect known pygmy-owl sites; (4) they considerations or protection. These ‘‘stepping stones’’ within the do not provide connectivity proximate generally include, but are not limited to, distribution of the overall population. to known pygmy-owl sites or SMAs; and the following: space for individual and Low population numbers and (5) some of these areas have not been population growth, and for normal fragmented habitat reduce the evaluated with regard to current habitat behavior; food, water, or other probability that local groups of pygmy- suitability (i.e., they are not known to nutritional or physiological owls will recolonize naturally in order contain the primary constituent requirements; cover or shelter; sites for to offset population fluctuations and elements). This does not mean that breeding, reproduction, or rearing of local population losses, resulting in the these areas are not possibly beneficial to offspring; and habitats that are protected extirpation of this distinct population the species, simply that we could not from disturbance or are representative of segment. yet determine, based on the best the historical geographical and As discussed above, the need to available scientific data, that they are ecological distributions of a species. connect known pygmy-owl sites and essential for the conservation of the The specific primary constituent local populations with each other is species or in need of special elements required for pygmy-owl necessary to the maintenance of the management and protection. We intend habitat are derived from the biological overall pygmy-owl population in to promote conservation and recovery of needs of the pygmy-owl as described Arizona. All known recent pygmy-owl the pygmy-owl in these areas through below. sites and recommended SMAs are the use of other tools which may Space for Individual and Population included in our proposed critical habitat include the reestablishment of pygmy- Growth and Normal Behavior designation. We selected connections owls through a section 10(j) for these areas based on our knowledge experimental population rule, HCPs, As described previously, pygmy-owls of the existing habitat and on aerial Safe Harbor agreements, and section 7 were recorded in association with photography. Some areas proposed for consultations under the jeopardy riparian woodlands in central and connectivity fall outside of the 5-mile standard, if applicable. southern Arizona (Bendire 1892, Gilman average dispersal distance around In developing this critical habitat 1909, Johnson et al. 1987) and are known pygmy-owl locations. However, proposal we made an effort to avoid currently found in a variety of these areas are still likely to be occupied developed areas such as towns, vegetation communities such as riparian because all areas proposed also fall agricultural lands, and other areas woodlands, mesquite bosques, Sonoran within the maximum dispersal distance unlikely to contribute to pygmy-owl desertscrub, semidesert grassland, documented for pygmy-owls in Arizona conservation. However, limitations on mesquite grasslands and Sonoran (34.8 km (21.8 mi)) (AGFD unpubl. spatial data (e.g., vegetative and other savanna grassland communities (see VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71037 Brown 1994 for vegetation community Pygmy-owls are considered non- dispersers may make additional descriptions). migratory throughout their range. There movements into the subsequent During the 1990s, nesting pygmy-owls are winter (November through January) breeding season (AGFD unpubl. data). were recorded in the Arizona upland pygmy-owl location records in Organ Pygmy-owls typically make short, subdivision of the Sonoran desert, Pipe Cactus National Monument (R. rapid flights. Observations indicate that particularly Sonoran desertscrub, and Johnson unpubl. data 1976, 1980; pygmy-owls rarely fly longer distances semidesert grasslands (Brown 1994), Tibbitts, pers. comm. 1997). Major than what is needed to travel from one primarily below 1,220 m (4,000 ft.) Bendire collected pygmy-owls along tree to an adjacent tree (Abbate et al. elevation (Wilcox et al. 2000). While Rillito Creek near Camp Lowell at 1999, 2000, AGFD unpubl. data). pygmy-owls will use the upland areas, present-day Tucson on January 24, Pygmy-owls will avoid flying across xeroriparian areas (dry washes) within 1872. The University of Arizona Bird large open areas such as golf courses these vegetative communities appear to Collection contains a female pygmy-owl (Abbate et al. 1999, 2000). Pygmy-owls be especially important (Wilcox et al. collected in the Tucson area on January have rarely been observed using areas of 2000). Sonoran desertscrub 8, 1953 (University of Arizona 1995). high human activity, such as high- communities are characterized by the Similarly, records exist from Sabino density (4–5 houses/ac) housing, for presence of a variety of cacti, large trees, Canyon on December 3, 1941, and normal day-to-day activities within a shrubs, and a diversity of plant species December 25, 1950 (U.S. Forest Service, home range, nor during dispersal (AGFD and vegetation layers. This community unpubl. data). Research and monitoring unpubl. data). Successful dispersal is includes, but is not limited to, palo conducted by AGFD has documented dependent on habitats in an appropriate verde (Cercidium spp.), ironwood year-round occupancy of known home configuration that are protected from (Olneya tesota), mesquite, acacia ranges (the area used by pygmy-owls disturbance. (Acacia spp.), bursage (Ambrosia spp.), throughout the year) (Abbate et al. 1999, Sufficient space must occur within desert hackberry (Celtis pallida), gray 2000). These winter records pygmy-owl home ranges to provide thorn (Zizyphus obtusifolia), and demonstrate that pygmy-owls are found vegetation of appropriate size and cover columnar cacti such as saguaro and within Arizona throughout the year and for roosting, sheltering, and foraging. organ pipe (Gilman 1909, Bent 1938, do not appear to migrate southward to The area must be adequate to provide van Rossem 1945, Phillips et al. 1964, warmer climates during the winter for the needs of the pygmy-owl on a Monson and Phillips 1981, Davis and months. Therefore, it is important that year-round basis. Population growth can Russell 1984, Johnson and Haight 1985, pygmy-owls have home ranges of only occur if there is adequate habitat in Johnson-Duncan et al. 1988, Johnsgard adequate size to provide for their life an appropriate configuration to allow 1988, Millsap and Johnson 1988). history requirements throughout the for the dispersal of pygmy-owls across the landscape. Dispersal habitat should Certain areas within the Altar Valley entire year. were historically Sonoran savanna provide sufficient cover in an grassland; however, with the invasion of Pygmy-owl dispersal patterns are just appropriate configuration to facilitate mesquite, these areas are now more beginning to be documented. One movement and reduce mortality factors properly classified as Sonoran banded juvenile in Arizona was (predators, prey availability, human- desertscrub (Brown 1994). The Altar observed in 1998 approximately 3.9 km related factors, etc.). Valley has also been described as (2.4 mi) from its nest site following Food semidesert grassland and/or a mesquite dispersal. Five young monitored with grassland biotic community with radio telemetry during 1998 were Pygmy-owls typically hunt from Sonoran desertscrub in the foothill areas recorded dispersing from 3.5 km (2.17 perches in trees with dense foliage using (Abbate et al. 1999, Wilcox et al. 2000). mi) to 10.4 km (6.5 mi) for an average a perch-and-wait strategy; therefore, We, therefore, include all three of these of 5.9 km (3.6 mi) (Abbate et al. 1999). sufficient cover must be present within grassland communities in our In 1999, 6 juveniles in Arizona their home range for them to description of pygmy-owl habitat dispersed from 2.3 km (1.4 mi) to 20.7 successfully hunt and survive. Pygmy- because they now contain the apparent km (12.9 mi) for an average of 10 km owls also hunt by inspecting tree and habitat requirements needed by pygmy- (6.2 mi) (Abbate et al. 2000). In Arizona, saguaro cavities for other nesting birds, owls. the maximum documented dispersal and possibly bats. Their diverse diet Xeroriparian areas are utilized by distance is 34.8 km (21.8 mi) (AGFD includes birds, lizards, insects, and pygmy-owls in desertscrub and unpubl. data). Juveniles typically small mammals (Bendire 1888, Sutton grassland vegetation communities. disperse from natal areas in July and 1951, Sprunt 1955, Earhart and Johnson Pygmy-owls have been documented August and do not appear to defend a 1970, Oberholser 1974, Proudfoot 1996, using xeroriparian drainages for nesting territory until September. They appear Abbate et al. 1996,1999). Observations and dispersal (Wilcox et al. 2000). to fly from tree to tree instead of long in Arizona from 1996 through 1998 Drainages throughout these areas flights and may move up to 1.6 km (1 indicate that reptiles, birds, mammals, concentrate available moisture mi) or more in a night (Abbate et al. and insects were 44, 23, 6, and 3 influencing the diversity and structure 1999). Trees of appropriate size and percent, respectively, of pygmy-owl of the vegetation. Grasslands have spacing appear to be necessary for prey deliveries recorded; 24 percent experienced the invasion of velvet successful dispersal, but specific data were unidentified (Abbate et al. 1999). mesquite in the uplands, and there are describing this pattern are currently It is likely that use of insects was linear woodlands of various tree species unavailable. Once dispersing male underestimated in these observations (ash, hackberry, mesquite, etc.) along pygmy-owls settle in a territory (the area because of the speed at which they are lowland areas and washes. In defended by a pygmy-owl), they rarely consumed and the difficulty in desertscrub communities, xeroriparian make additional movements outside of observing such small prey items. The sites are characterized by species found their home range. For example, spring density of annual plants and grasses, as in the uplands (palo verde, mesquite, surveys have found male juveniles in well as shrubs, may be important to acacia, ironwood, etc.) but typically the same general location as observed enhancing the pygmy-owl’s prey base. grow bigger and occur in higher the preceding autumn (Abbate et al. Vegetation communities which densities within the drainages. 2000). However, unpaired female provide a diversity of structural layers VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 71038 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules and plant species likely contribute to the only non-saguaro nest sites (Abbate Sonoran savanna, and mesquite the availability of prey for pygmy-owls et al. 2000). grasslands; and the Arizona Upland and (Wilcox et al. 2000). Pygmy-owls also Pygmy-owls exhibit a high degree of Lower Colorado River subdivisions of utilize different groups of prey species site fidelity once territories (the area Sonoran desertscrub (see Brown 1994 on a seasonal basis. For example, defended) and home ranges (the area for a description of vegetation lizards, small mammals, and insects are used throughout the year) have been communities); (2) nesting cavities utilized as available during the spring established (AGFD unpubl. data). located in trees including, but not and summer during periods of warm Therefore, it is important that habitat limited to cottonwood, willow, ash, temperatures (Abbate et al. 1999). characteristics within territories and mesquite, palo verde, ironwood, and However, during winter months, when home ranges be maintained over time in hackberry with a trunk diameter of 15 low temperatures reduce the activity by order for them to remain suitable. This cm (6 in) or greater measured 1.4 m (4.5 these prey groups, pygmy-owls likely is important for established owl sites, as ft) from the ground, or large columnar turn to birds as their primary source of well as new sites established by cactus such as saguaro or organ pipe food and appear to expand their use dispersing pygmy-owls. greater than 2.4 m (8 ft); (3) multilayered area in response to reduced prey Shrubs and large trees also provide vegetation (presence of canopy, mid- availability (Proudfoot 1996). Therefore, protection against predators for juvenile story, and ground cover) provided by conservation of the pygmy-owl should and adult pygmy-owls and cover from trees and cacti in association with include consideration of the habitat which they may capture prey (Wilcox et shrubs such as acacia, prickly pear, needs of prey species, including al. 2000). Little is known about the rate desert hackberry, graythorn, etc., and structural and species diversity and or causes of mortality in pygmy-owls; ground cover such as triangle-leaf seasonal availability. Pygmy-owl habitat however, they are susceptible to bursage, burro weed, grasses, or annual must provide sufficient prey base and predation from a wide variety of plants. By way of description, cover from which to hunt in an species. Documented and suspected preliminary data gathered by AGFD appropriate configuration and proximity pygmy-owl predators include great indicates 35 percent ground cover at to nest and roost sites. horned owls (Bubo virginianus), Harris’ perch sites and 48 percent ground cover hawks (Parabuteo unicinctus), Cooper’s at nest sites; mid-story cover of 65 Water hawks (Accipiter cooperii), screech-owls percent at perch sites and 65 percent at (Otus kennicottii), and domestic cats Free-standing water does not appear nest sites; and 73 percent canopy cover (Felis catus) (Abbate et al. 2000, AGFD to be necessary for the survival of at perch sites and 87 percent canopy unpubl. data). Pygmy-owls may be pygmy-owls. During many hours of cover at nest sites (Wilcox et al. 1999) particularly vulnerable to predation and research monitoring, pygmy-owls have (This AGFD information is based on a other threats during and shortly after limited study area, a small sample size, never been observed directly drinking fledging (Abbate et al. 1999). Arizona and methods used to describe water (Abbate et al. 1999, AGFD Game and Fish Department (AGFD) microhabitat characteristics and may unpubl. data). It is likely that pygmy- telemetry monitoring in 2002 indicated have only limited applicability in owls meet much of their biological at least three of the nine young were project evaluation); (4) vegetation water requirements through the prey killed by predators prior to dispersal providing mid-story and canopy level they consume. However, the presence of during a year when tree species failed cover (this is provided primarily by water may provide related benefits to to leaf out due to drought conditions trees greater than 2 m (6 ft) in height) pygmy-owls. The availability of water (AGFD unpubl. data). Therefore, cover in a configuration and density may contribute to improved vegetation near nest sites may be important for compatible with pygmy-owl flight and structure and diversity which improves young to fledge successfully (Wilcox et cover availability. The presence of water al. 1999, Wilcox et al. 2000). A number dispersal behaviors. Within 15-m radius also likely attracts potential prey species of fledgling pygmy-owls have perished plots centered on nests and perch sites, improving prey availability. after being impaled on cholla cactus, AGFD has documented the mean number of trees and average height of Reproduction and Rearing of Offspring probably due to undeveloped flight skills (Abbate et al. 1999). Conditions trees for Sonoran desertscrub and Male pygmy-owls establish territories which promote the proliferation of semidesert grassland areas. The mean using territorial-advertisement calls to cholla (overgrazing, vegetation number of trees per plot in Sonoran repel neighboring males and attract disturbance, etc.) may contribute to this desertscrub plots was 12.5 with a mean females. Usually, pygmy-owls nest as mortality factor. Habitat that provides height of 3.95 m. The mean number of yearlings (Abbate et al. 1999, Gryimek for successful reproduction and rearing trees in semidesert grassland was 28.5 1972), and both sexes breed annually of young provides trees and cacti that with a mean height of 8.1 m (Wilcox et thereafter. Territories normally contain are of adequate size to provide cavities al. 2000) (This AGFD information is several potential nest-roost cavities from in proximity to foraging, roosting, based on a small sample size using a which responding females select a nest. sheltering and dispersal habitats, in method designed to describe Hence, cavities/acre may be a addition to adequate cover for microhabitat characteristics. These fundamental criteria for habitat protection from climatic elements and numbers may have only limited selection. Historically, pygmy-owls in predators in an appropriate applicability in project evaluations); and Arizona used cavities in cottonwood, configuration in relation to the nest site. (5) habitat elements configured and mesquite, ash trees, and saguaro cacti The primary constituent elements human activity levels minimized so that for nest sites (Millsap and Johnson determined necessary for the unimpeded use, based on pygmy-owl 1988). Recent information from Arizona conservation of the pygmy-owl include: behavioral patterns (typical flight indicates nests were located in cavities (1) Elevations below 1,200 m (4,000 ft) distances, activity level tolerance, etc.), in saguaro cacti for all but two of the within the biotic communities of can occur during dispersal and within known nests documented from 1996 to Sonoran riparian deciduous woodlands; home ranges (the total area used on an 2002 (Abbate et al. 1996, 1999, 2000, Sonoran riparian scrubland; mesquite annual basis). AGFD unpubl. data). One nest in an ash bosques; xeroriparian communities; We determined that these proposed tree and one in a eucalyptus tree were tree-lined drainages in semidesert, primary constituent elements of critical VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71039 habitat provide for the physiological, roads with high traffic volumes are that there are additional areas that are behavioral, and ecological requirements some examples of activity levels that essential for the conservation of the of the pygmy-owl. The first primary could potentially affect pygmy-owl species in Arizona, we could revise the constituent element provides the behavior and habitat use. Habitat designation of critical habitat as general biotic communities which are elements should be configured, and appropriate (50 CFR 424.12(g)). The known to support pygmy-owl habitat in human activities should be minimized, addition of any new areas to the current Arizona. We conclude that this element so dispersal and pygmy-owl activities proposal will require us to start the is essential to the conservation of the within its home range are not impeded. proposal process again by publishing a pygmy-owl because the species is not We did not map critical habitat in new proposed rule and obtaining public known to occur outside of these biotic sufficient detail to exclude all comment before making a final communities. developed areas and other lands determination. The second primary constituent unlikely to contain primary constituent element provides the components elements essential for pygmy-owl Proposed Critical Habitat necessary for nesting, such as cavity conservation. Within the proposed availability and cover. The third critical habitat boundaries, only lands The proposed CHUs encompass all of primary constituent element describes containing some or all of the primary the verified, recent sites occupied by the structural makeup of habitat constituent elements (defined above) are pygmy-owls in Arizona, with the necessary to meet the biological needs proposed as critical habitat. Existing exception of pygmy-owls located on the of the pygmy-owl such as breeding, features and structures within proposed Tohono O’odham Nation (see nesting, roosting, perching, foraging, critical habitat, such as buildings; roads; ‘‘Exclusions Under Section 4(b)(2)’’ predator avoidance, and thermal cover, residential landscaping (e.g., mowed section of this rule). Each CHU contains and also promotes prey diversity and nonnative ornamental grasses); recent documented occurrences of availability. residential, commercial, and industrial pygmy-owls. The CHUs were configured The fourth primary constituent developments; and lands above 1,200 m by evaluating topography, vegetation, element describes the structural makeup (4,000 ft) do not contain some or all of and our current understanding of of vegetation necessary to meet the the primary constituent elements. pygmy-owl habitat suitability and biological needs of the pygmy-owl Therefore, these areas are not dispersal capabilities to select areas that related to movements and dispersal. considered critical habitat and are form an interconnected system of This includes small-scale movements specifically excluded by definition. habitat supported by the principles of for foraging, defense, predator Facilitating the movement of juvenile conservation biology. New pygmy-owls avoidance, pair formation, nest site pygmy-owls to establish breeding sites, continue to be found each year within selection, etc., as well as landscape level as well as movements among currently the proposed CHUs. Consequently, we movements needed to promote genetic known local populations of pygmy- believe that continued surveys will diversity and expansion of the owls, is important for dispersal and detect additional sites occupied by population. gene flow, and providing such pygmy-owls within these proposed The fifth constituent element connectivity is a widely accepted CHUs. describes landscape conditions which principle of conservation biology. Thus, may affect pygmy-owl behavioral portions of CHUs may function Table 1 presents a comparison of the patterns and relates to the need to primarily to provide such connectivity 1999 designation of pygmy-owl critical protect habitats from various within and among CHUs and may habitat and our current proposal. A brief disturbances. Pygmy-owl behavior is not contain only the primary constituent summary of changes to the initial typically affected by low levels of elements required for dispersal, but we designation are included. Table 2 shows human activity or activities which are recognize the essential nature of such the approximate acreage of proposed predictable (Abbate et al. 1999, 2000, connectivity to the persistence of critical habitat by land ownership and AGFD unpubl. data). Low-density (< 3 pygmy-owls in Arizona. county. Areas in Pima and Pinal houses per acre) residential areas and We are soliciting public comments, Counties, Arizona, that are proposed as roads with low traffic volumes are information, or data which will help us critical habitat have been divided into examples of this type of activity. evaluate whether the areas we have CHUs (see maps in the ‘‘Rule However, high levels of human proposed are essential for the Promulgation’’ section). Critical habitat activities, high-intensity activities, or conservation of the pygmy-owl. We seek for the pygmy-owl includes habitat activities which cannot be predicted public comment on all areas within the within the CHUs which contain areas may affect the areas pygmy-owls will pygmy-owl’s current and historical that are below 1,200 m (4,000 ft) and use for nesting, foraging and dispersal range in Arizona, including whether any include one or more of the primary (AGFD unpubl. data). High-density (> 3 of these or other areas should be constituent elements related to houses per acre) residential, commercial included or excluded from the final vegetation, as described above. A brief areas with lights and constant high designation. As stated previously, if description of each CHU and our levels of activity or unpredictable new information indicates that reasons for proposing those areas as activities of any level, ball fields, and proposed CHUs are inappropriate or critical habitat are presented below. VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 71040 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules TABLE 1.—COMPARISON OF THE 1999 CRITICAL HABITAT DESIGNATION WITH THE CURRENT PROPOSAL Former designation (64 FR 37419) Current proposal Unit Acres Description Unit Acres Description 1 ...... 159,811 Extended from the Mexican border 1 ...... 435,464 Extends eastward to include the Bue- northward between the Buenos nos Aires NWR and recent owl lo- Aires National Wildlife Refuge cations; northward to include re- (NWR) and the Tohono O’odham cent owl sites and habitat for dis- Nation, but did not include the persal Buenos Aires NWR. 2, 3 ...... 47,678 Strip of potential habitat that con- 2 ...... 179,805 Includes the former Unit 3 and ex- nected the Tohono O’odham Na- tends northward to provide for en- tion to Saguaro National Park-West hanced connectivity facilitating and Tucson Mountain County Park. movement between southern Pinal Unit 3 was a very small unit de- Co., the Tucson area, and occu- signed to provide connectivity pied areas to the south and west. across I–10. Saguaro National Park-West was added. 4 ...... 87,352 Unit 4 included occupied habitat in 3 ...... 73,958 This unit is based on recent owl loca- the Tucson area, which was then tions, average dispersal distance, the most dense pygmy-owl con- and the Northwest Tucson and centration known in the State. Tortolita Fan SMAs proposed in the draft Recovery Plan. 5a, 5b ...... 211,354 Designated to provide connectivity to 4 ...... 76,161 Much of this unit is not being pro- the riparian habitat of the Gila and posed. The remaining portions are San Pedro Rivers north and north- designated around recent pygmy- east of Tucson. owl locations to provide for the ex- pansion of this subpopulation (see ‘‘Methods’’ section). 6 ...... 133,351 Encompassed the riparian habitats of None ...... This unit is not being proposed for the Gila and San Pedro Rivers. designation based on the lack of recent, verified locations and our inability to determine the presence of the primary constituent elements (see ‘‘Methods’’ section). 7 ...... 99,542 Connected from unit 5a northward to None ...... This unit is not being proposed for and including the riparian habitat of designation based on the lack of the Salt River. recent, verified locations and our inability to determine the presence of the primary constituent elements (see ‘‘Methods’’ section). None ...... This unit was not previously des- 5 ...... 442,612 This unit includes habitat recently ignated. found to be occupied in Organ Pipe Cactus NM, on Cabeza Prieta NWR, and on largely BLM land around the Ajo area. Total ...... 739,088 ...... 1,208,001 TABLE 2.—APPROXIMATE CRITICAL HABITAT ACREAGE BY COUNTY AND LAND OWNERSHIP 1 State 2 Unit County FWS BLM NPS trust Private Other Total 1 ...... Pima ...... 114,490 22,908 0 233,467 63,310 1,289 435,464 2 ...... Pima ...... 0 58,189 22,022 25,782 34,967 18,091 159,051 2 ...... Pinal ...... 0 1,494 0 12,730 6,530 0 20,754 Total ...... 0 59,683 22,022 38,512 41,497 18,091 179,805 3 ...... Pima ...... 0 0 0 12,072 21,292 60 33,424 3 ...... Pinal ...... 0 4,295 0 22,391 13,197 651 40,534 Total ...... 0 4,295 0 34,463 34,489 711 73,958 4 ...... Pinal ...... 0 29,594 0 41,491 5,076 0 76,161 5 ...... Pima ...... 99,446 84,267 255,509 2,638 752 0 442,612 Total ...... 213,936 200,747 277,531 350,572 145,124 20,091 1,208,001 1 Note: acreage estimates are derived from Arizona Land Resource Information System data based on the cited legal descriptions. 2 Includes other Federal (BOR, Barry M. Goldwater Range), Military (AZ National Guard), State (AZGFD) and County lands. CHU Descriptions including general land ownership, areas were determined to be essential to geographical extent, dominant pygmy-owl conservation in Arizona. The following includes general vegetation, general land-use Much of the detail in the following CHU descriptions of each proposed CHU, information, and the reason(s) why the descriptions was taken from Recovery VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71041 Team documents. Legal descriptions, a connectivity and dispersal corridors regard to nesting as the overall pygmy- general location map, and maps of between populations of pygmy-owls in owl’s population expands. individual CHUs are in the ‘‘Regulation CHUs 1 and 3. This CHU includes the CHU 3 Promulgation’’ section of this rule. western unit of Saguaro National Park and Pima County’s Tucson Mountain This CHU lies primarily northeast of CHU 1 Park and extends westward to the Interstate 10 and extends from CHU 1 extends from the Mexican Tohono O’odham Nation, then northwest Tucson into southern Pinal border northward approximately 80 km northward and eastward to Interstate 10 County. The boundaries of this unit are (50 mi) through the Altar Valley along to join CHU 3 at points north and south. based on the recommended Northwest the eastern edge of the Tohono O’odham Part of this CHU is within the newly Tucson and Tortolita Fan SMAs found Nation. This CHU includes the Buenos designated Ironwood Forest National in the draft pygmy-owl recovery plan. Aires National Wildlife Refuge, as well Monument, which is predominantly The dominant vegetation is Arizona as BLM, State Trust and private lands to composed of BLM land but also upland Sonoran desertscrub, and the the north. Numerous washes descend includes some State Trust and private area contains stands of trees including from the Baboquivari Mountains on the lands. Vegetation is dominated by ironwood, mesquite, palo verde, and west and the Sierrita and San Luis Arizona upland Sonoran desertscrub other species important for pygmy-owl Mountains to the east. The Altar and and lower Colorado River Sonoran roosting, perching, foraging and Brawley Washes are important valley desertscrub. This unit also includes predator avoidance (primary constituent wash systems. Vegetation is dominated some lands on which native trees are elements 1, 3 and 4). Saguaros occur in by semidesert grassland (also described returning and provide the described relatively high densities and are used as Sonoran savanna or mesquite conditions for connectivity and for nesting (primary constituent element grassland (Brown 1994)), but also dispersal (primary constituent element 2). Based on our current understanding, supports Arizona upland Sonoran 4). These lands were previously used for this CHU includes the most contiguous desertscrub vegetation, particularly in agricultural purposes and have been and highest-quality pygmy-owl habitat the northern part of this unit. Tree retired. Much of CHU 2 is under Federal in Arizona (Wilcox et al. 1999, Wilcox species such as mesquite, ash, and administration (BLM, Ironwood et al. 2000). The southern portion of this hackberry are found in the drainages of National Monument, Saguaro National CHU is mostly privately owned, the this unit, while grasses, scattered Park), but there is some State Trust and central portion is primarily State Trust, mesquite, and isolated saguaros are private lands, particularly in the while the rest of the CHU is a mixture found in the upland areas. Documented northern part of the unit. No single land of private, State, and BLM lands. pygmy-owl use in this unit includes use dominates this CHU; mining, This CHU contains a high density of both breeding and dispersal. agriculture, grazing, development, and active pygmy-owl nesting territories and Management issues primarily relate to recreation are present. Impacts to dispersal pathways threatened by grazing and controlled burning, while pygmy-owl habitat are also occurring existing and on-going land uses, secondary issues involve residential and from the constant movement of affecting primary constituent element 5. commercial development. Illegal border individuals and groups crossing the It has one of the highest known crossings and management also impact border illegally through this unit. densities of pygmy-owls in Arizona, and vegetation and other resources in this An important purpose of this CHU is is one of only four areas in the State unit. to allow for dispersal and other with documented breeding pygmy-owls. We determine that this area is movements of pygmy-owls among CHU Since 1999, CHU 3 has accounted for 35 essential to pygmy-owl conservation in 1, CHU 3, CHU 4 and the Tohono percent of the known pygmy-owls in Arizona because it contains recent O’odham Nation. Movement among Arizona and 40 percent of the known documentation of breeding pygmy-owl these areas is necessary for the nests (Abbate et al. 1999, 2000, AGFD locations and a number of pygmy-owls maintenance and expansion of pygmy- unpubl. data). Therefore, the primary with unknown breeding status. Since owl subpopulations found within these purpose of this CHU is to provide and 1999, this unit has accounted for CHUs. There is a known pygmy-owl site protect adequate breeding habitat for the approximately 43 percent of the known located in the southeastern portion of maintenance and expansion of this local pygmy-owls in Arizona (Harris this CHU; however, in general there has population. Dispersal pathways within Environmental Group 1998, Flesch been a lack of survey effort in this unit. the southern portion of this CHU are 1999, Abbate et al. 2000, AGFD unpubl. We determine that this CHU is limited, and so this CHU also protects data). In addition, the CHU is essential to pygmy-owl conservation in remaining areas of connectivity for contiguous with the Tohono O’odham Arizona because it provides movement within this CHU and among Nation, which provides important connectivity between occupied CHUs 1, adjacent CHUs. Some of the private land connectivity to the west and south and 3, 4, and the Tohono O’odham Nation. within this CHU has been developed may support breeding pygmy-owls. This CHU provides breeding, roosting, and would not be considered critical Finally, the area provides connectivity perching, and foraging habitat habitat if it does not contain the primary between the pygmy-owls in Mexico and (constituent elements 1, 2, and 3) and constituent elements. Development the Tohono O’odham Nation with those maintains an important linkage function pressure continues to be the main in the Tucson area (CHU 2 and 3). CHU among blocks of nesting habitat both activity affecting conservation of the 1 contains all of the described primary locally and over the pygmy-owl’s range species in this CHU. We determine that constituent elements, and its primary (constituent element 4) that is essential this CHU remains an essential functions are to provide nesting to the pygmy-owl’s conservation (see component of pygmy-owl conservation opportunities and connectivity for discussion above). Human activities and because it supports one of the highest dispersal. development are dispersed, and this densities of breeding pygmy-owls in unit also contains park lands resulting Arizona, contributes to recruitment in CHU 2 in conditions associated with primary the population, contains a significant This CHU is connected to the constituent element 5. The primary amount of high-quality habitat, and northern portion of CHU 1 and the function of this unit is for connectivity, provides all of the primary constituent Tohono O’odham Nation, providing but may become more important with elements. VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 71042 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules CHU 4 The CHU is almost entirely under the plan are capable of accomplishing This CHU occurs in Pinal County and Federal ownership, including portions the objectives, have an implementation encompasses the northernmost extent of of Cabeza Prieta National Wildlife schedule, and/or adequate funding for this critical habitat proposal, running Refuge, Organ Pipe Cactus National the management plan); and (3) provides from the north edge of CHU 3 northward Monument, and contiguous BLM land assurances the conservation plan will be to an area approximately 14.4 km (9 mi) in the vicinity of the town of Ajo. This effective (i.e., it identifies biological north of Park Link Drive. The northern unit also contains a small amount of goals, has provisions for reporting terminus of this CHU was defined by State Trust land. The area consists of progress, and is of a duration sufficient the average distance juvenile pygmy- Arizona upland Sonoran desertscrub to implement the plan and achieve the and lower Colorado River Sonoran plan’s goals and objectives). If an area owls could disperse from the most desertscrub. Recreation-related provides physical and biological northern of recent pygmy-owl sites (see activities, undocumented alien traffic features essential to the conservation of discussion in ‘‘Methods’’ section). and management, and grazing on BLM the species, and also is covered by a Vegetation is almost entirely Arizona lands are the primary management plan that meets these criteria, then such upland Sonoran desertscrub. Grazing, issues in this unit. an area does not constitute critical development, and mining exploration This CHU contains numerous pygmy- habitat as defined by the Act because have been identified as management owl locations, including breeding sites. the primary constituent elements found issues affecting the species in this area. Since 1999, this CHU has accounted for there are not in need of special Fires have also contributed to the approximately 21 percent of the known management. current vegetation condition (increases pygmy-owls in Arizona (Abbate et al. It is possible that some of the areas in exotic grasses and reduction of tree 1999, 2000, AGFD unpubl. data). We proposed (e.g., national parks/ canopy) and will likely remain an issue determine that this CHU is essential to monuments) are already under a in this unit into the future. These pygmy-owl conservation, as it provides management plan that will provide for burned areas still contain one or more breeding habitat contiguous with known the long-term conservation of the primary constituent elements, but could pygmy-owls in Mexico and on the pygmy-owl. We encourage landowners benefit from enhancement or special Tohono O’odham Nation. The purpose to develop and submit management management. CHU 4 is primarily State of this CHU is to protect and maintain plans and actions that are consistent Trust and BLM lands, with some known breeding areas, provide with pygmy-owl conservation that we scattered private holdings. connectivity to Mexico and the Tohono can evaluate and that may remove the This CHU has documented pygmy- O’odham Nation, and allow for necessity of critical habitat regulation. If owl occupancy (3 sites since 1999 expansion of this subpopulation any management plans are submitted (Abbate et al. 1999, 2000, AGFD unpubl. through dispersal. Recruitment and during the open comment period, we data.)), primarily within the southern resulting expansion of the population in will consider whether these plans portions. However, much of the unit has this area are necessary for the provide adequate special management not been surveyed, and the surveys that conservation of the species. CHU 5 or protection for the species. We will have occurred have not been systematic contains all of the primary constituent use this information in determining nor regular. CHU 4 does contain elements. which, if any, areas should not be breeding habitat, and we expect an included in the final designation of Managed Lands increased survey effort would reveal critical habitat for the pygmy-owl. more pygmy-owl sites. The primary As part of our process of developing purposes of this unit are to maintain this critical habitat proposal, we Exclusions Under Section 4(b)(2) for and protect occupied sites, provide evaluated existing management plans to Tribal Lands expanded opportunities for breeding, determine whether they provide Section 4(b)(2) of the Act requires us and provide connectivity for dispersal sufficient protection and management to base critical habitat designations on within the unit and to CHU 3. We for the pygmy-owl and its habitat such the best scientific and commercial data determine that this area is essential to that there is no need for additional available, after taking into consideration the pygmy-owl’s conservation in special management considerations or the economic and any other relevant Arizona, as it contains several known protection of areas that otherwise would impact of specifying any particular area pygmy-owl locations and provides qualify as critical habitat. Section 3(5)(i) as critical habitat. We may exclude areas habitat for breeding as well as for of the Act defines critical habitat as from a critical habitat designation when pygmy-owls dispersing within this unit areas on which are found those physical the benefits of exclusion outweigh the and from the breeding areas around or biological features (I) essential to the benefits of designation, provided the Tucson. Pygmy-owls have been conservation of the species and (II) exclusion will not result in the documented moving between CHUs 3 which may require special management extinction of the species. and 4 over the past few years (Abbate considerations or protection. Adequate As discussed in this rule, we know et al. 1999). We determine that this CHU special management or protection is that pygmy-owls occupy the Tohono remains an essential component of provided by a legally operative plan that O’odham Nation, but we have no pygmy-owl conservation because it addresses essential habitat and that specific information on the numbers or supports breeding pygmy-owls, provides for the long-term conservation distribution. There is a considerable contributes to recruitment in the of the species. We consider a plan amount of unsurveyed habitat on the population, contains a significant adequate when it: (1) Provides a Nation and, although we have no means amount of high-quality habitat, and conservation benefit to the species (i.e., of quantifying this habitat, the provides all of the primary constituent the plan must maintain or provide for distribution of recent sightings on non- elements. an increase in the species’ population, Tribal areas east, west, and south of the or the enhancement or restoration of its U.S. portion of the Nation lead one to CHU 5 habitat within the area covered by the reasonably conclude that these Tribal This CHU runs from the Mexican plan); (2) provides assurances that the lands may support meaningful numbers border northward along the western management plan will be implemented of pygmy-owls. Thus, we believe that edge of the Tohono O’odham Nation. (i.e., those responsible for implementing Nation lands are important to the VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71043 conservation of the pygmy-owl; under the jeopardy standard, we do not Nation with respect to lands owned and however, it would be difficult to believe a designation of critical habitat managed by the Nation, Tribal trust determine which areas on the Nation would provide significant additional resources, and the exercise of Tribal meet the definition of critical habitat benefits to the pygmy-owl. rights. Consequently, we are sensitive to due to our lack of information on the fact that the Tohono O’odham (2) Benefits of Exclusion pygmy-owl numbers and distribution. culture, religion, and spirituality may Based on our analysis below we find Pursuant to Secretarial Order 3206 involve or relate to animals, including that the benefits of excluding the Nation American Indian Tribal Rights, Federal- the pygmy-owl. We acknowledge the from the proposed designation of Tribal Trust Responsibilities and the cultural sensitivity of the Nation with critical habitat outweigh the benefits of Endangered Species Act, we recognize regard to owls. including them. Therefore, we are not that we must carry out our We believe the designation of critical proposing to include the lands of the responsibilities under the Act in a habitat on the Tohono O’odham Nation Nation as critical habitat. manner that harmonizes the Federal would adversely impact our working trust responsibility to Tribes and Tribal relationship with the Nation, which has (1) Benefits of Inclusion sovereignty while striving to ensure that been and is currently beneficial for the We do not believe that designating Indian Tribes do not bear a conservation of the pygmy-owl and critical habitat within the Nation would disproportionate burden for the other natural resource management provide significant additional benefits conservation of listed species, so as to programs. We believe, as stated in for the pygmy-owl. Projects on Nation avoid or minimize the potential for section 4(b)(2) of the Act, that the lands with a Federal nexus (e.g., funded, conflict and confrontation. benefits to excluding the Tohono approved or carried out by Federal In accordance with the Presidential O’odham Nation outweigh the benefits agencies, such as the Bureau of Indian Memorandum of April 29, 1994, we of specifying this area as critical habitat. Affairs, Indian Health Services, or believe that, to the maximum extent We also do not believe this exclusion Federal Highways Administration) will possible, Indian Pueblos and Tribes will result in extinction of the pygmy- trigger section 7 consultation with us if should be the governmental entities to owl because of the limited threats to the projects affect pygmy-owls, manage their lands and Tribal trust pygmy-owls and their habitats, and the regardless of critical habitat. Most resources. The designation of critical initiation of a conservation program. projects of a scale large enough to habitat would be expected to adversely impact pygmy-owls will have a Federal impact our working relationship with Lands Covered Under Existing Habitat nexus. In addition, we have received the Nation, and we believe that Federal Conservation Plans (HCPs) from the Tohono O’odham Nation a regulation through critical habitat Section 10(a)(1)(B) of the Act document entitled A Conservation designation would be viewed as an authorizes the Service to issue to non- Strategy for the Federally Endangered unwarranted and unwanted intrusion Federal entities a permit for the Cactus Ferruginous pygmy-owl on the into Tribal natural resource programs incidental take of endangered and Tohono O’odham Nation (Edward D. and may harm our working relationship threatened species. This permit allows a Manuel, Tohono O’odham Nation, in with the Nation which has been non-Federal landowner to proceed with litt. 2002) which outlines the general beneficial in implementing natural an activity that is legal in all other process by which the Nation and resource programs of mutual interest. respects, but that results in the Federal agencies will coordinate to For example, on April 28, 1999, the incidental taking of a listed species (i.e., evaluate and address potential impacts Chairman of the Nation accepted an take that is incidental to, and not the to pygmy-owls related to various invitation to partner with Pima County purpose of, the carrying out of an activities on the Nation. While this in developing the Sonoran Desert otherwise lawful activity). The Act document is not sufficient to remove the Conservation Plan. Representatives from specifies that an application for an need for special management (see the Nation have participated in the incidental take permit must be ‘‘Section 3(5)(A) Definition’’ section Sonoran Desert Conservation Plan accompanied by a conservation plan, above), it does indicate the progress that planning process, including expert and specifies the content of such a plan. is being made through our efforts to committees and education sessions. The purpose of such a habitat coordinate conservation actions on the Moreover, during 1999, the Service’s conservation plan, or HCP, is to describe Nation and the intent of the Nation to Region 2 Native American Liaison met and ensure that the effects of the conserve the pygmy-owl. with representatives of the Nation to permitted action on covered species are Because of the extent of the lands discuss their relationship with Cabeza adequately minimized and mitigated within the Nation (approximately 1.2 Prieta National Wildlife Refuge and to and that the action does not appreciably million ha (3 million ac)) and the low further discuss a possible joint venture reduce the survival and recovery of the number of people residing in this area, to survey and manage the pygmy-owl on species. the scope and types of projects being Nation lands. Representatives from the Within the range of the pygmy-owl, implemented have had minimal impacts Nation are members of both the the Service has approved an HCP on the landscape, disturbing less than Implementation and Technical Groups involving the Lazy K Bar Ranch. We 300 acres since September 1999 (E. of the Cactus Ferruginous Pygmy-Owl evaluated this HCP to determine Manuel, Tohono O’odham Nation, in Recovery Team. We are now meeting whether it: (1) Provides a conservation litt. 2002). We will continue with the Nation on a regular basis to benefit to the species; (2) provides Government-to-Government develop a statement of relations and to assurances that the management plan consultations with the Tohono O’odham pursue the development of a will be implemented; and (3) provides Nation to address the conservation management plan for the natural assurances the plan will be effective. needs of the pygmy-owl on Tribal lands. resources on the Nation, which would Approved and permitted HCPs are In summary, because any potential include the pygmy-owl. designed to ensure the long-term impacts to the pygmy-owl from future Pursuant to Secretarial Order 3206, survival of covered species within the projects will be addressed through the the Service acknowledges our unique plan area. Where we have an approved Nation’s Conservation Strategy or and distinctive Federal Tribal trust HCP, the areas we ordinarily would through a section 7 consultation with us responsibility and obligation toward the designate as critical habitat for the VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 71044 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules covered species will be protected of surveys and cavity inspections, as Federal nexus (i.e., an action through the terms of the HCPs and their well as amount of area graded, plat authorized, funded, or carried out by a implementation agreements. proposals, and the extent of revegetation Federal agency). Such consultation The issuance of a permit (under completed. would ensure that adequate protection Section 10(a) of the Act) in association (3) The plan or agreement must is provided to avoid adverse with an HCP application is subject to provide assurances that the modification of critical habitat. Where consultation under Section 7(a)(2) of the conservation management strategies HCPs are in place, our experience Act. While these consultations on will be effective: Monitoring is a key indicates that this benefit is small or permit issuance have not specifically component of this habitat conservation non-existent. addressed the issue of destruction or plan. Surveys to detect pygmy-owl Further, HCPs typically provide for adverse modification of critical habitat presence or absence will be conducted greater conservation benefits to a for the pygmy-owl, they have addressed on an annual basis. Cavity inspections covered species than section 7 the very similar concept of jeopardy to will occur to document the status and consultations because HCPs assure the pygmy-owls in the plan area. Since this occupancy of potential nesting cavities. long-term protection and management HCP addresses land use within the plan The plan provides for the funding and of a covered species and its habitat. boundaries, habitat issues within the completion of telemetry studies on any Such assurances are typically not plan boundaries have been thoroughly pygmy-owls detected so that the effects provided by section 7 consultations addressed in the HCP and the of the project on pygmy-owl habitat use which, in contrast to HCPs, often do not consultation on the permit associated and behavior can be determined. The commit the project proponent to long- with the HCP. Our experience is that, success of vegetation salvage and term special management or protections. under most circumstances, revegetation efforts will be monitored. The development and implementation consultations under the jeopardy Photo documentation will be used to of HCPs provide other important standard will reach the same result as track the effects to habitat from both conservation benefits, including the consultations under the adverse development activities and revegetation. development of biological information modification standard. Common to both On the basis of this assessment, we to guide conservation efforts and assist approaches is an appreciable have determined that the area addressed in species recovery and the creation of detrimental effect on both survival and by the Lazy K Bar Ranch HCP does not innovative solutions to conserve species recovery of a listed species, in the case require additional special management while allowing for commercial activity. of critical habitat by reducing the value considerations to conserve the pygmy- The educational benefits of critical of the habitat so designated. Thus, owl. Therefore, the area covered by the habitat, including informing the public actions satisfying the standard for existing, legally operative incidental of areas that are important for the long- adverse modification are nearly always take permit issued for pygmy-owls term survival and conservation of the found to also jeopardize the species under section 10(a)(1)(B) of the Act is, species, are essentially the same as concerned, and the existence of a by definition under Section 3(5)(A) of those that would occur from the public critical habitat designation does not the Act, not included in this proposed notice and comment procedures materially affect the outcome of designation of critical habitat. required to establish an HCP, as well as consultation. Therefore, additional Lands within HCPs are subject to the public participation that occurs in measures to protect the habitat from disposal (e.g., through sale or exchange), the development of many regional adverse modification are not likely to be subject to various sideboards included HCPs. For these reasons, then, we required. in each HCP. Proposed critical habitat believe that designation of critical We have reviewed the Lazy K Bar does not include non-Federal lands habitat normally has little benefit in Ranch HCP. A summary of our covered by an incidental take permit for areas covered by HCPs. assessment is as follows: pygmy-owls issued under section The benefits of excluding HCPs from (1) A current plan or agreement must 10(a)(1)(B) of the Act for these HCPs as being designated as critical habitat be complete and provide sufficient long as such permit, or a conservation include relieving landowners, conservation benefit to the species: A easement providing comparable communities and counties of any habitat conservation plan was submitted conservation benefits, remains legally additional regulatory review that results and approved in November 1998 which operative on such lands. from such a designation. Many HCPs, provides for continued conservation of We also considered exclusion of HCPs particularly large regional HCPs, take the species through the minimization of under subsection 4(b)(2) of the Act, many years to develop and, upon habitat destruction (a maximum of 17 which allows us to exclude areas from completion, become regional percent disturbance), revegetation critical habitat designation where the conservation plans that are consistent (approximately 21 ac), and seasonal benefits of exclusion outweigh the with the recovery of covered species. restrictions to avoid potential noise benefits of designation, provided the Imposing an additional regulatory disturbance. These efforts will maintain exclusion will not result in the review after HCP completion may habitat for breeding and dispersal, as extinction of the species. We believe jeopardize conservation efforts and well as reduce the potential for that in most instances, the benefits of partnerships in many areas and could be disturbance during sensitive seasons of excluding HCPs from critical habitat viewed as a disincentive to those the year. designations will outweigh the benefits developing HCPs. (2) The plan or agreement must of including them. We believe this is the A related benefit of excluding HCP provide assurances that the case in relation to the Lazy K Bar Ranch areas is that it would encourage the conservation management strategies HCP that addresses pygmy-owls. continued development of partnerships will be implemented: The coverage The benefits of including HCP lands with HCP participants, including States, provided under this HCP and related in critical habitat are normally local governments, conservation 10(a)(1)(B) permit is conditional upon nonexistent. The principal benefit of organizations, and private landowners, the implementation of the included any designated critical habitat is that that together can implement terms and conditions. The terms and activities in such habitat that may affect conservation actions we would be conditions are nondiscretionary. Annual it require consultation under section 7 unable to accomplish alone. By reporting is required showing the results of the Act if such actions involve a excluding areas covered by HCPs from VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71045 critical habitat designation, we preserve funded, permitted or carried out, will Section 4(b)(8) of the Act requires that these partnerships and, we believe, set not require section 7 consultation. we describe in any proposed or final the stage for more effective conservation We will conduct our analyses regulation that designates critical actions in the future. regarding the destruction or adverse habitat those activities involving a In general, we believe the benefits of modification of critical habitat over the Federal action that may destroy or critical habitat designation to be entire critical habitat designation and on adversely modify such habitat or that insignificant in areas covered by a unit basis, as dictated by conditions may be affected by such designation. approved HCPs. We also believe that the within the unit. A consultation focuses Activities that may destroy or adversely benefits of excluding HCPs from on the entire critical habitat area modify critical habitat include those designation are significant. Weighing designated, unless the critical habitat that alter the primary constituent the small benefits of inclusion against rule identifies another basis for analysis, elements to the extent that the value of the benefits of exclusion, including the such as discrete units and/or groups of critical habitat for the conservation of benefits of relieving property owners of units necessary for different life-cycle the species is appreciably diminished. an additional layer of approvals and phases, units representing distinctive We note that such activities may regulation, together with the habitat characteristics or gene pools, or include, but are not limited to: encouragement of conservation units fulfilling essential geographic (1) Activities such as clearing of partnerships, would generally result in distribution requirements. In the case of vegetation that appreciably reduce the HCPs being excluded from critical the pygmy-owl, certain CHUs (e.g., CHU value of the critical habitat for breeding; habitat designation under section 4(b)(2) 1 and CHU 3) contain habitat for (2) Activities such as clearing of the Act. breeding and dispersal constrained by vegetation, road-building, or recreation existing land uses. In addition, the small Effects of Critical Habitat Designation that appreciably reduce the value of the population size and dispersed critical habitat for connectivity; Section 7(a) of the Act requires distribution of the pygmy-owl make (3) Activities such as clearing of Federal agencies to evaluate their local populations within specific CHUs vegetation, water diversion or actions both with respect to any species and the ability to maintain connectivity impoundment, or high-impact that is proposed or listed as endangered among them geographically significant recreation that appreciably reduce the or threatened and with respect to its for the maintenance of the overall value of the critical habitat for feeding critical habitat, if any is designated or Arizona population of pygmy-owls. by pygmy-owls; proposed. Regulations implementing When we issue a biological opinion (4) Activities that appreciably reduce this interagency cooperation provision concluding that a project is likely to the value of the critical habitat for other of the Act are codified at 50 CFR § 402. result in the destruction or adverse biological purposes (e.g., roosting, Section 7(a)(2) requires Federal agencies modification of critical habitat, we also rearing, or other normal behavior to ensure that activities they authorize, provide reasonable and prudent patterns). fund, or carry out are not likely to alternatives to the project, if any are The following federally funded jeopardize the continued existence of identifiable. Reasonable and prudent programs and actions that may be such a species. If a Federal action may alternatives are defined at 50 CFR 402.2 affected by the proposed designation of affect a listed species or its critical as alternative actions identified during critical habitat include, but are not habitat, the responsible Federal agency consultation that can be implemented in limited to: must enter into consultation with us. a manner consistent with the intended (1) Funding or approval of road Section 7(a)(4) of the Act and purpose of the action, that are consistent development, realignment, widening, or regulations at 50 CFR § 402.10 require with the scope of the Federal agency’s maintenance by the Federal Highway Federal agencies to confer with us on legal authority and jurisdiction, that are Administration resulting in the any action that is likely to result in economically and technologically significant loss or degradation of the destruction or adverse modification of feasible, and that we believe would primary constituent elements; proposed critical habitat. avoid the likelihood of jeopardizing the (2) Funding of housing development Activities on Federal lands that may continued existence of listed species or by the Federal Housing Administration, affect pygmy-owl critical habitat will the destruction or adverse modification Veteran’s Administration, Small require section 7 consultation. Activities of critical habitat. Reasonable and Business Administration or Department on private or State lands that are prudent alternatives can vary from of Housing and Urban Development funded, permitted or carried out by a slight project modifications to extensive resulting in the significant loss or Federal agency, such as a permit from redesign or relocation of the project. degradation of the primary constituent the U.S. Army Corps of Engineers Costs associated with implementing a elements; (Corps) under section 404 of the Clean reasonable and prudent alternative are (3) Approval of structures and Water Act, or a section 402 permit similarly variable. distribution for energy, communication, under the Clean Water Act from the Regulations at 50 CFR 402.16 require and other utilities by the Federal Energy Environmental Protection Agency Federal agencies to reinitiate Regulatory Commission or the Federal (EPA), will be subject to the section 7 consultation on previously reviewed Communications Commission resulting consultation process if those actions actions in instances where critical in the loss or degradation of the primary may affect critical habitat or a listed habitat is subsequently designated and constituent elements; species through modification of suitable the Federal agency has retained (4) Approval of actions related to habitat. Through this consultation, we discretionary involvement or control grazing, mining, recreation, and land would advise agencies whether the over the action or such discretionary planning by the Bureau of Land permitted actions would likely involvement or control is authorized by Management, U.S. Forest Service, and jeopardize the continued existence of law. Consequently, some Federal National Park Service that result in a the species or adversely modify critical agencies may request reinitiation of significant loss or degradation of the habitat. Federal actions not affecting consultation with us for actions for primary constituent elements; critical habitat or otherwise not affecting which formal consultation has been (5) Approval of structures or actions pygmy-owls, and actions on non- completed, if those actions may affect by the Bureau of Reclamation related to Federal lands that are not federally proposed or designated critical habitat. the management of waterways or VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 71046 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules floodways that result in a significant and propose conservation for 55 outweigh the benefits of specifying such loss or degradation of the primary vulnerable species in Pima County, areas as critical habitat. We cannot constituent elements; and including the pygmy-owl. The Town of exclude areas from critical habitat when (6) Approval of permits or actions Marana is also pursuing an incidental such an exclusion will result in the related to the Clean Water Act by the take permit for actions within their extinction of the species. We have Environmental Protection Agency or jurisdiction that will address the conducted a robust economic analysis Corps that result in the significant loss pygmy-owl and other species. There is that complies with the ruling by the or degradation of the primary one currently operative HCP (Lazy K Bar Tenth Circuit Court of Appeals in New constituent elements. Ranch) that specifically addresses the Mexico Cattle Growers Association, et. The Act and 50 CFR 17.22 also pygmy-owl and its habitat. Based on our al. v. U.S. Fish and Wildlife Service on provide for the issuance of permits to evaluation of this HCP we have the effects of the proposed critical carry out otherwise prohibited activities concluded, pursuant to section 3(5)(A) habitat designation. We are announcing involving endangered animal species of the Act, that areas within this HCP do the availability of the draft economic under certain circumstances. Such not require additional special analysis with this proposed rule. permits are available for scientific management considerations or purposes, to enhance the propagation or protection, and consequently we have Public Comments Solicited survival of the species, and for not included areas within it as proposed It is our intent that any final action incidental take in connection with critical habitat. (See the Managed Lands resulting from this proposal will be as otherwise lawful activities. section, above, for a discussion of the accurate and as effective as possible. If you have questions regarding factors considered). Therefore, we solicit comments or whether specific activities may In the event that future HCPs covering suggestions from the public, other constitute adverse modification of the pygmy-owl are developed within the concerned governmental agencies, the critical habitat, contact the Field boundaries of designated critical scientific community, industry, or any Supervisor, Arizona Ecological Services habitat, we will work with applicants to other interested party concerning this Field Office (see ADDRESSES section). ensure that the HCPs provide for proposed rule. We particularly seek Requests for copies of the regulations on protection and management of habitat comments concerning: listed wildlife and inquiries about areas essential for the conservation of (1) Whether all areas proposed for prohibitions and permits may be the pygmy-owl. designation are essential to the addressed to the Service, Branch of The HCP development process conservation of the species; Endangered Species/Permits, P.O. Box provides an opportunity for more (2) Whether any lands within the 1306, Albuquerque, NM 87103 intensive data collection and analysis Tohono O’odham Nation should be (telephone 505/248–6920, facsimile regarding the use of particular habitat included in the designation; 505/248–6922). areas by pygmy-owls. The process also (3) Whether the benefits of excluding Relationship to Habitat Conservation enables us to conduct detailed specific areas will outweigh the benefits Plans and Other Planning Efforts evaluations of the importance of such of including those areas as critical lands to the long-term survival of the habitat; Section 3(5)(A) of the Act defines species in the context of constructing a (4) Whether any areas included in the critical habitat, in part, as those areas biologically configured system of proposed designation have adequate requiring special management interlinked habitat areas. special management and protection in considerations or protection. Section We will provide technical assistance place such that they do not meet the 10(a)(1)(B) of the Act authorizes us to and work closely with applicants definition of critical habitat; issue permits for the take of listed throughout the development of future (5) Whether we have looked at the species incidental to otherwise lawful HCPs to identify lands essential for the right biological factors and other activities. This permit allows a non- conservation of the pygmy-owl and relevant data concerning the number Federal landowner to proceed with an appropriate management for those and distribution of pygmy-owls in activity that is legal in all other respects, lands. The take minimization and Arizona, quantity and quality of but that results in the incidental taking compensation measures provided under available pygmy-owl habitat, and what of a listed species. An incidental take these HCPs are expected to protect habitat is essential to the conservation permit application must be supported critical habitat. Furthermore, we will of the species and why. Is there by an HCP that identifies conservation complete intra-Service consultation on additional information we have not measures that the permittee agrees to our issuances of section 10(a)(1)(B) considered?; implement for the species to minimize permits for these HCPs to ensure permit (6) Whether the methodology utilized and mitigate the impacts of the issuance will not destroy or adversely to delineate the proposed critical habitat permitted incidental take. The purpose modify critical habitat. If an HCP that boundaries is appropriate for of the HCP is to describe and ensure that addresses the pygmy-owl as a covered determining areas that are essential to the effects of the permitted action on species is ultimately approved, we may the conservation of the pygmy-owl (e.g., covered species are adequately reassess the critical habitat boundaries range of the owl, specific sites, and the minimized and mitigated, and that the in light of the HCP. need for habitat connectivity); action does not appreciably reduce the (7) If the rule accurately reflects the survival and recovery of the species. Economic Analysis land use practices and current or We began working with Pima County Section 4(b)(2) of the Act requires us planned activities in the subject areas in 1998 to develop the Sonoran Desert to designate critical habitat on the basis and their possible impacts on proposed Conservation Plan which identifies and of the best scientific and commercial critical habitat; provides for the regional or area-wide data available and to consider the (8) Whether there are any foreseeable protection and perpetuation of plants, economic and other relevant impacts of economic or other impacts resulting animals, and their habitats, while designating a particular area as critical from the proposed designation of allowing compatible land-use and habitat. We may exclude areas from critical habitat, including any impacts economic activity. This regional HCP critical habitat upon a determination on small entities or families that are not will address the effects of urban growth that the benefits of such exclusions considered in the draft economic VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71047 analysis (specifically estimated number on the areas that are essential to the organizations or businesses, available of small businesses affected by the conservation of pygmy-owl, and critical for public inspection in their entirety. designation); habitat could be revised as appropriate. (9) Whether economic and other Required Determinations Public Hearings values associated with designating Regulatory Planning and Review critical habitat for the pygmy-owl such The Act provides for one or more For the purposes of Executive Order as those derived from non-consumptive public hearings on this proposal, if 12866, this document is a significant uses (e.g., hiking, camping, bird- requested. We are scheduling one public rule and has been reviewed by the watching, enhanced watershed hearing on this proposal. We will hold Office of Management and Budget protection, improved air quality, this public hearing in the Leo Rich (OMB). A separate consideration of the increased soil retention, ‘‘existence Theater at the Tucson Convention economic and other relevant impacts values,’’ and reductions in Center in Tucson, AZ, on January 23, will be conducted under section 4(b)(2) administrative costs) were included 2002, from 6:30 p.m. to 9 p.m. For more of the Act. appropriately; information on this hearing, contact the We have prepared a draft economic (10) Whether we properly assessed Field Supervisor of the Arizona analysis to assist us in compliance with the available literature regarding pygmy- Ecological Services Field office (see section 4(b)(2) as well as Executive owls; ADDRESSES section). (11) If the use of the preliminary Order 12866 and other regulatory SMAs described in the draft Recovery Executive Order 12866 requirements. Concerning Executive Order 12866, the draft analysis indicates Plan is appropriate in delineating Executive Order 12866 requires each critical habitat areas; that this rule will not have an annual agency to write regulations/notices that economic effect of $100 million or more (12) If the areas proposed for are easy to understand. We invite your designation are essential to the or adversely affect an economic sector, comments on how to make this notice productivity, jobs, the environment, or conservation of the species; easier to understand including answers (13) Whether we have sufficient other units of government. Under the to questions such as the following: (1) Act, critical habitat may not be information to support designation of Are the requirements in the notice each of the proposed units; destroyed or adversely modified by a clearly stated? (2) Does the notice Federal agency action; the Act does not (14) What should the relationship be contain technical language or jargon that between the recovery plan and the impose any restrictions related to interferes with the clarity? (3) Does the critical habitat on non-Federal persons critical habitat designations; and format of the notice (grouping and order (15) Have we adequately addressed unless they are conducting activities of sections, use of headings, uncertainty and scientific disagreement funded or otherwise sponsored or paragraphing, etc.) aid or reduce its with respect to all aspects of the permitted by a Federal agency. clarity? (4) Is the description of the proposed designation? As discussed above, Federal agencies SUPPLEMENTARY Prior to making a final determination notice in the would be required to ensure that their on this proposed rule, we will take into INFORMATION section of the preamble actions do not destroy or adversely consideration all relevant comments helpful in understanding the notice? modify designated critical habitat of the and additional information received What else could we do to make the pygmy-owl. Because of the potential for during the comment period. notice easier to understand? impacts on other Federal agencies’ Send a copy of any comments that activities, we will review this proposed Peer Review concern how we could make this notice action for any inconsistencies with In accordance with our policy easier to understand to: Office of other Federal agency actions. published on July 1, 1994 (59 FR Regulatory Affairs, Department of the If this rule is finalized we will 34270), we will seek the expert opinions Interior, Room 7229, 1849 C Street, determine whether it materially affects of at least three appropriate and NW., Washington, DC 20240. You may entitlements, grants, user fees, loan independent specialists regarding this e-mail your comments to this address: programs, or the rights and obligations proposed rule. The purpose of such [email protected]. of their recipients, except those review is to promote listing decisions Our practice is to make comments involving Federal agencies which would that are based on scientifically sound that we receive on this rulemaking, be required to ensure that their activities data, assumptions, and analyses, including names and home addresses of do not destroy or adversely modify including input from appropriate respondents, available for public review designated critical habitat. As discussed experts and specialists. We will send during regular business hours. above, we have conducted an economic these peer reviewers copies of this Individual respondents may request that analysis and determined that this rule proposed rule immediately following its we withhold their home address from will not have an annual economic effect publication in the Federal Register. We the rulemaking record, which we will of $100 million or more. will invite these peer reviewers to honor to the extent allowable by Federal OMB has determined that the critical comment, during the public comment law. In some circumstances, we would habitat portion of this rule will raise period, on the specific assumptions and withhold from the rulemaking record a novel legal or policy issues and, as a conclusions regarding the proposed respondent’s identity, as allowable by result, this rule has undergone OMB designation of critical habitat. Federal law. If you wish for us to review. The proposed rule follows the We will consider all comments and withhold your name and/or address, requirements for proposing critical information received during the 90-day you must state this prominently at the habitat contained in the Act. comment period on this proposed rule beginning of your comment. However, during preparation of a final we will not consider anonymous Regulatory Flexibility Act (5 U.S.C. 601 rulemaking. Accordingly, the final comments. We will make all et seq.) decision may differ from this proposal. submissions from organizations or Under the Regulatory Flexibility Act Depending on public comments, businesses, including individuals (as amended by the Small Business information, or data received, we will identifying themselves as Regulatory Enforcement Fairness Act evaluate and make a final determination representatives or officials of (SBREFA) of 1996), whenever a Federal VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 71048 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules agency is required to publish a notice of First, the number of small businesses considered ‘‘substantial’’, this analysis rulemaking for any proposed or final affected is estimated; 3 concludes that a significant economic rule, it must prepare and make available • Estimate the number of businesses impact on a substantial number of small for public comment a regulatory within the study area affected by section entities will not result from the flexibility analysis that describes the 7 implementation annually (assumed to designation of critical habitat for the effect of the rule on small entities (i.e., be equal to the number of annual pygmy-owl. small businesses, small organizations, consultations); To the extent that the designation of and small government jurisdictions). • Calculate the percent of businesses critical habitat for the pygmy-owl may However, no regulatory flexibility in the affected industry that are likely to lead to an increase in the number of analysis is required if the head of an be small; formal consultations and project • agency certifies that the rule will not Calculate the number of affected modifications, some mining operations, have a significant economic impact on small businesses in the affected particularly the smaller operators in industry; a substantial number of small entities. • Pinal County, may be affected by the SBREFA amended the Regulatory Calculate the percent of small designation. The Service estimates that Flexibility Act to require Federal businesses likely to be affected by approximately six consultations are agencies to provide a statement of the critical habitat. likely to occur within pygmy-owl This calculation reflects conservative factual basis for certifying that a rule critical habitat areas in the next ten assumptions and nonetheless yields an will not have a significant economic years, or approximately 0.6 per year. estimate that is still far less than the 20 impact on a substantial number of small There are approximately 66 mining percent threshold that would be entities. Based on the information companies in the counties in which considered ‘‘substantial.’’ As a result, critical habitat units are located.5 available to us at this time, we are this analysis concludes that a significant Therefore approximately 0.9 percent of certifying that the rule will not have a economic impact on a substantial small mining companies in Pima and significant effect on a substantial number of small entities will not result Pinal Counties may be affected by the number of small entities. However, we from the designation of critical habitat intend to consider the information from for the pygmy-owl. Nevertheless, an designation of critical habitat for the the addendum to the economic analysis estimate of the number of small pygmy-owl annually. Because 0.9 prior to our final designation. The businesses that will experience effects at percent reflects conservative following discussion explains our a significant level is provided below. assumptions and is still less than the 20 rationale and is based upon the Small businesses in the construction percent threshold that would be information contained in the draft and development industry could considered ‘‘substantial,’’ this analysis Economic Analysis that we are potentially be affected by the concludes that a significant economic providing for comment concurrently designation of critical habitat for the impact on a substantial number of small with this proposed rule. pygmy-owl if the designation leads to entities will not result from the This analysis first determines whether significant project modifications or designation of critical habitat for the critical habitat potentially affects a delays associated with development. To pygmy-owl. ‘‘substantial number’’ of small entities be conservative, this analysis assumes Estimated Effects on Small Businesses: in counties supporting critical habitat that a unique company will undertake The ‘‘Significant Effect’’ Test areas. While SBREFA does not each of the projected consultations in a explicitly define ‘‘substantial number,’’ single year and that each of these Costs of critical habitat designation to the Small Business Administration, as companies will be a small business. small businesses consist primarily of the well as other Federal agencies, have Thus, this analysis assumes that 27 cost of participating in section 7 interpreted this to represent an impact unique companies will consult with the consultations and the cost of project on 20 percent or greater of the number Service on development projects over modifications. To calculate the likelihood that a small business will of small entities in any industry.1 ten years, or approximately 2.7 businesses per year. There are experience a significant effect from Estimated Number of Small Businesses approximately 161 residential critical habitat designation for the Affected: The ‘‘Substantial Number’’ development companies in the counties pygmy-owl, the following calculations Test in which critical habitat units are were made: • Calculate the per-business cost. located.4 Thus, approximately 1.7 To be conservative, (i.e., more likely This consists of the unit cost to a third percent of small residential to overstate impacts than understate party of participating in a section 7 development companies in Pima and them), this analysis assumes that a consultation (formal or informal) and Pinal Counties may be affected by the unique entity will undertake each of the the unit cost of associated project designation of critical habitat for the projected consultations in a given year, modifications. To be conservative, this pygmy-owl annually. Because 1.7 and so the number of businesses analysis uses the high-end estimate for percent reflects conservative affected is equal to the total annual each cost. number of consultations (both formal assumptions and is far less than the 20 • Determine the amount of annual 2 and informal). percent threshold that would be sales that a company would need to have for this per-business cost to 1 See U.S. Small Business Administration, likely would overstate the number of affected The Regulatory Flexibility Act: An Implementation businesses. constitute a ‘‘significant effect.’’ This is Guide for Federal Agencies, 1998. Accessed at: 3 Note that because these values represent the calculated by dividing the per-business www.sba.gov/advo/laws/rfaguide.pdf on probability that small businesses will be affected cost by the three percent ‘‘significance’’ December 3, 2001. during a one-year time period, calculations may threshold value. 2 While it is possible that the same business could result in fractions of businesses. This is an • Estimate the likelihood that small consult with the Service more than once, it is acceptable result, as these values represent the unlikely to do so during the one-year timeframe probability that small businesses will be affected by businesses in the study area will have addressed in this analysis. However, should such section 7 implementation of the Act. multiple consultations occur, they would 4 Census Bureau, County Business Patterns, 5 Census Bureau, County Business Patterns, concentrate effects of the designation on fewer Accessed at: http://www.census.gov/epcd/ cbp/ Accessed at: http://www.census.gov/epcd/cbp/ entities. In such a case, the approach outlined here view/cbpview.html on August 26, 2002. view/cbpview.html on August 26, 2002. VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71049 annual sales equal to or less than the from the designation of critical habitat ‘‘significant regulatory action’’ under threshold amount calculated above. for the pygmy-owl. the Unfunded Mandates Reform Act). This is estimated using national Executive Order 13211 Takings statistics on the distribution of sales within industries.6 On May 18, 2001, the President issued In accordance with Executive Order • Based on the probability that a an Executive Order (E.O. 13211) on 12630, we have considered whether this single business may experience regulations that significantly affect rule has significant takings implications. energy supply, distribution, and use. significant effects, calculate the I. Summary of the Action expected value of the number of Executive Order 13211 requires agencies businesses likely to experience a to prepare Statements of Energy Effects We are proposing to designate significant effect. when undertaking certain actions. We approximately 1.2 million acres of critical habitat for the pygmy-owl. On • Calculate the percent of businesses have a very good consultation history September 21, 2001, the United States in the study area within the affected for the pygmy-owl; thus, we can District Court for the District of Arizona, industry that are likely to be affected describe the kinds of actions that have in National Association of Home significantly. undergone consultations. Within the Builders et al. v. Norton, Civ.–00–0903– Small businesses in the construction areas proposed as critical habitat units, PHX–SRB vacated the previous and development industries per- the BLM, Department of Energy (DOE), designation of critical habitat for the business cost could potentially be $4.3 and the Federal Energy Regulatory pygmy-owl and ordered us to issue a million. The annual sales that a Commission (FERC) are likely to new proposed rule designating critical company would need to have for this undergo section 7 consultation for habitat for the pygmy-owl. This per-business cost to constitute a actions relating to energy supply, proposed rule is being issued pursuant ‘‘significant effect’’ would be $120 distribution, or use. to that order. million. Based on national statistics 11 Since the species was listed in 1997, percent of small businesses in Pima and the BLM has consulted on the Safford II. Assessment of Takings Implications Pinal Counties will have sales in this Resource Management Plan (RMP) and the Phoenix RMP, which address utility The mere promulgation of a range. Thus, the expected number of regulation, like the enactment of a small businesses likely to experience a corridors. There are several other proposed energy distribution lines (e.g., statute, is rarely sufficient to establish significant effect is 89 percent of 2.7, or that private property has been taken 2.4 businesses annually. This number the Sonora-Arizona Interconnection Project) in the planning phases that unless the regulation on its face denies represents approximately 1.4 percent of the property owners economically construction and development involve Federal agencies, including DOE, FERC, BLM and the Forest viable use of their land (Agins v. City of companies in Pima and Pinal Counties. Tiburon, 447 U.S. 255, 260–263 (1980); Because 1.4 percent reflects Service, depending on the alternative selected and the lands that will be Hodel v. Virginia Surface Mining and conservative assumptions and is still Reclamation Ass’n, 452 U.S. 264, 195 less than the 20 percent threshold that affected. These distribution lines are likely to require section 7 consultation (1981)). The designation of critical would be considered ‘‘significant,’’ this habitat alone does not deny anyone analysis concludes that a significant for one or several listed species that occur along their routes. Measures, economically viable use of their economic impact on a substantial property. The Act does not number of small entities will not result including adjustments to routes, should be available to minimize and mitigate automatically restrict all uses of critical from the designation of critical habitat habitat, but only imposes restrictions for the pygmy-owl. adverse effects. While this rule is a significant under section 7(a)(2) on Federal agency The mining industry’s per-business actions that may result in destruction or cost could potentially be $45,700. The regulatory action under Executive Order 12866, it is not expected to significantly adverse modification of designated annual sales that a company would critical habitat. This is not the very rare need to have for this per-business cost affect energy supplies, distribution, or use. Therefore, this action is not a case such as that found in Whitney to constitute a ‘‘significant effect’’ Benefits, Inc. v. United States, 926 would be $1.5 million. Based on significant energy action and no Statement of Energy Effects is required. F.2nd 1169 (Fed. Cir. 1991), in which a national statistics 22 percent of small statute explicitly prohibits the only businesses in Pima and Pinal Counties Unfunded Mandates Reform Act (2 economically useful activity possible on will have sales in this range. The U.S.C. 1501 et seq.) certain lands and a court is able to expected number of small businesses In accordance with the Unfunded discern without administrative action likely to experience a significant effect Mandates Reform Act (2 U.S.C. 1501 et that no permit could possibly be is 88 percent of 0.6, or 0.5 businesses seq.), based upon the information granted. annually. This number represents available to us through the draft Recognizing that governmental approximately or 0.9 percent of mining Economic Analysis and as described in regulation involves adjustment of rights companies in Pima and Pinal Counties. the ‘‘Regulatory Flexibility Act’’ section for the public good, the court has found Because 0.9 percent reflects above: that a regulation which curtails the most conservative assumptions and is still (1) This rule will not ‘‘significantly or profitable use of property, resulting in a less than the 20 percent threshold that uniquely’’ affect small governments. A reduction in value or limitations on use, would be considered ‘‘significant,’’ this Small Government Agency Plan is not likewise does not necessarily result in a analysis concludes that a significant required. Small governments will be taking (Andrus v. Allard, 444 U.S. 51, economic impact on a substantial affected only to the extent that any of 66 (1979); Agins, 447 U.S. at 262; Hodel, number of small entities will not result their actions involving Federal funding 452 U.S. at 296). Where a regulation or authorization must not destroy or denies property owners all 6 This probability is calculated based on national adversely modify the critical habitat. economically viable use of their industry statistics obtained from the Robert Morris Associated Annual Statement of Studies: 2001– (2) This rule will not produce a property, then a taking will likely occur 2002 and from comparison with the SBA Federal mandate of $100 million or (Agins, 447 U.S. at 260). However, definitions of small businesses. greater in any year (i.e., it is not a where regulation does not categorically VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 71050 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules prohibit use but merely regulates the action would be evaluated by the or administration, change the role of the conditions under which such use may involved Federal agency, in Federal or State government, or affect occur, and does not regulate alternative consultation with us, in relation to its fiscal capacity. For example, we have uses, then no taking occurs (Hodel, 452 impact on the pygmy-owl and its conducted many formal consultations U.S. at 296). With the designation of designated critical habitat. In the with the Corps and EPA over actions critical habitat, property owners are not unexpected event that extensive related to their issuance of permits denied the economically viable use of modifications would be required to a pursuant to sections 404 and 402, their land. Use of land is not project on private property, it is not respectively, under the Clean Water Act. categorically prohibited but rather likely that the economic impacts to the Because these consultations were certain restrictions are imposed upon property owner would be of sufficient conducted prior to the original Federal agency actions which may magnitude to support a takings action. designation of critical habitat, while result in the destruction or adverse We do not anticipates that property critical habitat was in place, and after modification of critical habitat. As such, values will be affected by critical habitat critical habitat designation for the it is not likely that taking occurs. designation, but this will be analyzed in pygmy-owl was vacated pursuant to Even beyond the above, however, a our economic analysis. Therefore, we court order, we do not believe that this property owner must establish that a anticipate that this critical habitat designation of critical habitat will have ‘‘concrete controversy’’ exists before the designation will result in insignificant significant Federalism effects. If this court may even reach the merits of a takings implications on these lands. critical habitat designation is finalized, takings claim (Hodel, 452 U.S. at 294; Federal agencies also must ensure, Agins, 447 U.S. at 260). The property III. Alternatives to Designating Critical through section 7 consultation with us, owner must show a specific and real Habitat that their activities do not destroy or impact to specific properties before Under the Act, there is no alternative adversely modify designated critical judicial resolution of a takings claim is to designation of critical habitat. Critical habitat. Nevertheless, we do not made (MacDonald, Sommer, and Frates habitat must be designated unless we anticipate that the types of measures, v. Yolo County, 447 U.S. 340, 348–349; determine that it is not prudent or provided by past consultations (e.g., Agins, 447 U.S. at 260). The issue is not determinable to do so (16 U.S.C. those issued from 1997 through 2002), yet ripe for judicial resolution until 1533(b)(6)(C)). As described above, we will increase because an area is administrative action is pursued to a are under court order to complete a designated as critical habitat. This rule final determination (Hodel, 452 U.S. at rulemaking to designate critical habitat also will not change the private property 297; MacDonald, 447 U.S. at 348–349). for the pygmy-owl. We will further rights within the area proposed to be It is likely that, prior to judicial consider the economic and other designated as critical habitat. For these intervention, a solution will be reached relevant impacts of the designation in reasons, we do not anticipate that the at the administrative level (Hodel, 452 deciding whether to exclude areas for designation of critical habitat will U.S. at 297). The Act provides the designation in the final rule. change State policy or administration, mechanisms, through section 7 change the role of the Federal or State consultation, to resolve apparent IV. Financial Exposure government, or affect fiscal capacity. conflicts between proposed Federal The designation of critical habitat for Within some areas the designation of actions, including Federal funding or the pygmy-owl will not on its face cause critical habitat could trigger additional permitting of actions on private land, a taking of private property. Because the review of Federal activities under and the conservation of the species, Act’s critical habitat protection section 7 of the Act, and may result in including avoiding the destruction or requirements apply only to Federal additional requirements on Federal adverse modification of designated agency actions, few, if any, conflicts activities to avoid destroying or critical habitat. Based on our experience between critical habitat and private adversely modifying critical habitat. with section 7 consultations for all property rights should result. No Any action that lacked Federal listed species, virtually all projects— approximation of the financial exposure involvement would not be affected by including those that, in their initial of the Federal government is possible, the critical habitat designation. Should proposed form, would result in jeopardy but it is expected to be insignificant. a federally funded, permitted, or or adverse modification determinations Based on the above assessment, we implemented project be proposed that in section 7 consultations—can be find that this proposed rule designating may affect designated critical habitat, implemented successfully with, at most, critical habitat for the pygmy-owl does we will work with the Federal action the adoption of reasonable and prudent not pose significant takings agency and any applicant, through alternatives. These measures must be implications. section 7 consultation, to identify ways economically feasible and within the to implement the proposed project scope of authority of the Federal agency Federalism while minimizing or avoiding any involved in the consultation. In accordance with Executive Order adverse effect to the species or critical We believe that the takings 13132, we have considered whether this habitat. In our experience, the majority implications associated with this critical rule has significant Federalism effects of such projects can be successfully habitat designation will be insignificant, and have determined that a Federalism implemented with modifications that even though private, State, and Federal assessment is not required. In keeping avoid significant economic impacts to lands are included. Impacts of critical with Department of the Interior policy, project proponents. habitat designation may occur on we requested information from and The designation may have some private lands where there is Federal coordinated development of this benefit to these governments in that the involvement (e.g., Federal funding or proposed rule with appropriate resource areas essential to the conservation of the permitting) subject to section 7 of the agencies in Arizona. We will continue species would be clearly defined, and Act. Impacts on private entities may to coordinate any future designation of the primary constituent elements of the also result if the decision on a proposed critical habitat for the pygmy-owl with habitat necessary to the survival of the action on Federally owned critical the appropriate agencies. species would be identified. While this habitat could affect economic activity We do not anticipate that this definition and identification do not alter on adjoining non-Federal land. Each regulation will intrude on State policy where and what federally sponsored VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71051 activities may occur, it may assist these Pueblos and Tribes and will arrange Authority: 16 U.S.C. 1361–1407; 16 U.S.C. local governments in long-range meetings with them during the 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– planning (rather than waiting for case- comment period on potential effects to 625, 100 Stat. 3500; unless otherwise noted. by-case section 7 consultations to them or their resources that may result 2. Amend § 17.95(b) by revising occur). from critical habitat designation. critical habitat for the Pygmy-owl, We have met with representatives of cactus ferruginous (Glaucidium Civil Justice Reform the Tohono O’odham Nation and, based brasilianum cactorum), to read as In accordance with Executive Order on the Section 4(b)(2) of the Act, we follows: 12988, the Office of the Solicitor has have determined that the benefits of determined that this rule would not designating the Nation as critical habitat § 17.95 Critical habitat—fish and wildlife. unduly burden the judicial system and do not outweigh the benefits of * * * * * would meet the requirements of sections excluding them. We also believe that (b) Birds. *** 3(a) and 3(b)(2) of the Order. We this exclusion will not result in the CACTUS FERRUGINOUS PYGMY- propose to designate critical habitat in extinction of the pygmy-owl because of OWL (Glaucidium brasilianum accordance with the provisions of the the limited threats to pygmy-owls and cactorum) Act. The rule uses standard property their habitat within the Nation and the (1) Critical habitat units are depicted descriptions and identifies the primary Nation’s initiation of a conservation for Pima and Pinal Counties, Arizona, constituent elements within the program. In addition, the Recovery on the maps below. These maps are a designated areas to assist the public in Team has not recommended inclusion graphical representation of the understanding the habitat needs of the of the Tohono O’odham Nation as a geographic boundaries that encompass pygmy-owl. Recovery Area. Consequently, we are the proposed pygmy-owl critical habitat not proposing critical habitat on the and are provided for illustrative Paperwork Reduction Act of 1995 (44 purposes only. The map and GIS files U.S.C. 3501 et seq.) Tohono O’odham Nation. Pygmy-owls were recently located on used to create these maps are not the This rule does not contain any new a grazing allotment held by the Pascua definitive source for determining critical collections of information that require Yaqui Tribe. These grazing leases habitat boundaries. While we make approval by the Office of Management include State Trust and Federal lands, every effort to represent the proposed and Budget (OMB) under 44 U.S.C. 3501 but are adjacent to lands held in title by critical habitat shown on these maps as et seq. This rule will not impose new the Tribe. It will be important to completely and accurately as possible record-keeping or reporting coordinate conservation efforts for the (given existing time, resource, data, and requirements on State or local pygmy-owl in this area with the Pascua display constraints), the maps are for governments, individuals, businesses, or Yaqui Tribe. reference only; the areas that organizations. We will continue to work with the geographically contain the proposed critical habitat are legally described National Environmental Policy Act Tohono O’odham Nation and the Pascua Yaqui Tribe regarding the development below. It is our position that, outside the of management and conservation plans, (2) Within these areas, the primary Tenth Circuit, we do not need to conservation agreements, grants, and constituent elements for the pygmy-owl prepare environmental analyses as other cooperative projects that could are those habitat components that are defined by the NEPA in connection with contribute to the recovery of pygmy- essential for the primary biological designating critical habitat under the owls in Arizona. needs of foraging (provide sufficient Endangered Species Act of 1973, as prey base and cover from which to hunt amended. We published a notice References Cited in an appropriate configuration and outlining our reasons for this A complete list of all references cited proximity to nest and roost sites), determination in the Federal Register in this final rule is available upon nesting (trees and cacti of adequate size on October 25, 1983 (48 FR 49244). This request from the Arizona Ecological to support cavities in proximity to assertion was upheld in the Ninth Services Field Office (see ‘‘Addresses’’ foraging, roosting, sheltering and Circuit Douglas County v. Babbitt, 48 section). dispersal habitats), rearing of young F.3d 1495 (9th Cir. 1995), cert. denied, (adequate cover for protection from 116 S. Ct. 698 (1996). Author climatic elements and predators in an The primary authors of this notice are appropriate configuration in relation to Government-to-Government the staff at the Arizona Ecological the nest site), roosting (provides Relationship With Indian Pueblos and Services Field Office (see ‘‘Addresses’’ substrates of adequate size and cover), Tribes section). sheltering (provides substrates of In accordance with the Secretarial List of Subjects in 50 CFR Part 17 adequate size and cover), and dispersal Order 3206, ‘‘American Indian Tribal (provides adequate cover and Rights, Federal-Tribal Trust Endangered and threatened species, configuration to facilitate movement Responsibilities, and the Endangered Exports, Imports, Reporting and and reduce mortality factors, i.e., Species Act’’ (June 5, 1997), the recordkeeping requirements, predators, prey availability, human- President’s memorandum of April 29, Transportation. related factors, etc.). Only areas within 1994, ‘‘Government-to-Government Proposed Regulation Promulgation these geographic boundaries that are Relations with Native American Tribal below 1,200 m (4,000 ft) and include Accordingly, we propose to amend Governments’’ (59 FR 22951), E.O. one or more of the primary constituent Part 17, subchapter B of chapter I, title 13175, and the Department of the elements related to vegetation are 50 of the Code of Federal Regulations, Interior’s requirement at 512 DM 2, we proposed as critical habitat. understand that recognized Federal as set forth below: (3) The primary constituent elements Indian Pueblos and Tribes must be PART 17—[AMENDED] include: related to on a Government-to- (i) Elevations below 1,200 m (4,000 ft) Government basis. Therefore, we are 1. The authority citation for part 17 within the biotic communities of soliciting information from the Indian continues to read as follows: Sonoran riparian deciduous woodlands; VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 71052 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules Sonoran riparian scrubland; mesquite mid-story cover of 65 percent at perch microhabitat characteristics. These bosques; xeroriparian communities; sites and 65 percent at nest sites; and 73 numbers may have only limited tree-lined drainages in semidesert, percent canopy cover at perch sites and applicability in project evaluations; and Sonoran savanna, and mesquite 87 percent canopy cover at nest sites (v) Habitat elements configured and grasslands; and the Arizona Upland and (Wilcox et al. 1999). This AGFD human activity levels minimized so that Lower Colorado River subdivisions of information is based on a limited study unimpeded use, based on pygmy-owl Sonoran desertscrub (see Brown 1994 area, a small sample size, and methods behavioral patterns (typical flight for a description of these vegetation used to describe microhabitat distances, activity level tolerance, etc.), communities); characteristics and may have only can occur during dispersal and within (ii) Nesting cavities located in trees limited applicability in project home ranges (the total area used on an including, but not limited to, evaluation; annual basis). cottonwood, willow, ash, mesquite, palo (4) Critical habitat does not include verde, ironwood, and hackberry with a (iv) Vegetation providing mid-story non-Federal lands covered under the trunk diameter of 15 cm (6 in) or greater and canopy level cover (this is provided existing legally operative incidental take measured 1.4 m (4.5 ft) from the ground, primarily by trees greater than 2 m (6 ft) permit (Lazy K Bar Ranch) for the or large columnar cactus such as in height) in a configuration and density pygmy-owl issued under section 10(a) of saguaro or organ pipe greater than 2.4 m compatible with pygmy-owl flight and the Act. (8 ft); dispersal behaviors. Within 15-m radius (iii) Multilayered vegetation (presence plots centered on nests and perch sites, (5) Areas above 1,200 m (4,000 ft) and of canopy, mid-story, and ground cover) AGFD has documented the mean existing features and structures within provided by trees and cacti in number of trees and average height of proposed critical habitat, such as association with shrubs such as acacia, trees for Sonoran desertscrub and buildings; roads; cultivated agricultural prickly pear, desert hackberry, semidesert grassland areas. The mean land; residential landscaping (e.g., graythorn, etc., and ground cover such number of trees per plot in Sonoran mowed nonnative ornamental grasses); as triangle-leaf bursage, burro weed, desertscrub plots was 12.5 with a mean residential, commercial, and industrial grasses, or annual plants. By way of height of 3.95 m. The mean number of developments; and other features, do description, preliminary data gathered trees in semidesert grassland was 28.5 not contain the primary constituent by the Arizona Game and Fish with a mean height of 8.1 m (Wilcox et elements. Therefore, these areas are not Department (AGFD) indicates 35 al. 2000). This AGFD information is considered critical habitat and are percent ground cover at perch sites and based on a small sample size using a specifically excluded by definition. 48 percent ground cover at nest sites; method designed to describe (6) Note: Index map follows: VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71053 (7) Unit 1. Pima County, Arizona. Mts., Ariz. 1979.; and Silver Bell Mtns., (i) Unit 1: Gila and Salt Principal From USGS Sells, Ariz. 1979; Atascosa 1994. Meridian, Arizona: T. 14 S., R. 9 E., VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 EP27NO02.000 71054 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules secs. 33 to 36; T. 14 S., R. 10 E., secs. portions of secs. 1, 12, 14, 23, 26, 33 and 21 S., R. 8 E., secs. 1 to 36; T. 21 S., R. 31 to 36; T. 15 S., R. 9 E., secs. 1 to 4, 34 east of the Tohono O’odham Nation 9 E., secs. 1 to 11, 14 to 22, 27 to 33, 9 to 16, 21 to 36; T. 15 S., R. 10 E., secs. boundary; T. 19 S., R. 8 E., secs. 1 to 36; N 1⁄2 of sec. 34, and those portions of 12, 1 to 36; T. 16 S., R. 8 E., secs. 25 to 28 T. 19 S., R. 9 E., secs. 1 to 36; T. 19 S., 13, and 24 within the boundary of the and 33 to 36; T. 16 S., R. 9 E., secs. 1 R. 10 E., secs. 1 to 12; T. 20 S., R. 7 E., Buenos Aires N.W.R.; T. 21 S., R. 10 E., to 6, 12 to 15 and 19 to 36; T. 16 S., R. secs. 1 to 2, 11 to 15, 22 to 27, 34 to 36, those portions of secs. 6, 7, 18 to 20, 29, 10 E., secs. 1 to 36; T. 17 S., R. 8 E., secs. and those portions of secs. 3, 9 to 10, 16 30 within the boundary of the Buenos 1 to 3, 10 to 16, 21 to 36, and E. 1⁄2 of to 17, 21, 28 to 29, 32 to 33 east of the Aires N.W.R.; T. 22 S., R. 7 E., secs. 1 secs. 4 and 9; T. 17 S., R. 9 E., secs. 1 Tohono O’odham Nation; T. 20 S., R. 8 to 3, 10 to 15, and those portions of secs. to 36; T. 17 S., R. 10 E., secs. 1 to 36; E., secs. 1 to 36; T. 20 S., R. 9 E., secs. 22 to 24 north of Mexico; T. 22 S., R. T. 18 S., R. 7 E., secs. 1, 12, and those 1 to 12, 14 to 22, 27 to 34 and those 8 E., secs. 1 to 27 and those portions of portions of 2, 11, 13 to 14, 24, 25 and portions of 13, 23 to 26, 36 within the secs. 28 to 30, 33 to 36 north of Mexico; 36 east of the Tohono O’odham Nation boundary of the Buenos Aires N.W.R.; T. 22 S., R. 9 E., secs. 6 to 7, 18 to 19, boundary; T. 18 S., R. 8 E., secs. 1 to 18, T. 21 S., R. 7 E., secs. 1 to 4, 9 to 16, 30 to 31; T. 23 S., R. 8 E., the portion 20 to 36, and those portions of sec. 19 21 to 27, 34 to 36 and those portions of of sec. 1 north of Mexico; T. 23 S., R. east of the Tohono O’odham Nation secs. 5, 8, 17, 20, 28, 29 east of the 9 E., the portion of sec. 6 north of boundary; T. 18 S., R. 9 E., secs. 1 to 36; Tohono O’odham Nation boundary and Mexico and within the boundary of the T. 18 S., R. 10 E., secs. 1 to 36; T. 19 the portion of sec. 33 north of the Buenos Aires N.W.R. S., R. 7 E., secs. 24, 25, 35, 36, and those Tohono O’odham Nation boundary; T. (ii) Note: Map of Unit 1 follows: VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71055 (8) Unit 2. Pima and Pinal counties, 1994 and Silver Bell Mountains, Ariz., (i) Unit 2: Gila and Salt Principal Arizona. From USGS Casa Grande, Ariz, 1994 maps. Meridian, Arizona: T. 10 S., R. 9 E., VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 EP27NO02.001 71056 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules secs. 25 to 36 and those portions of secs. Cruz River, the portions of secs. 26 and S 1⁄2 of sec. 15, secs. 16 to 22, W 1⁄2 of 15 and 22 to 24 south and west of the 27 within the levees of the Santa Cruz sec. 23 and that portion of sec. 23 north Santa Cruz River’s east channel and River, E 1⁄2 of the SE 1⁄4 of sec 34 and and west of W. Paseo de las Estrallas to associated diversion; T. 10 S., R. 10 E., that portion of sec. 34 south and east of N. Calle del Risco to W. Placita del secs. 17 to 21, 27 to 33, the portions of the south edge of pavement of Cortaro Risco to N. Paseo del Barranco to W. sec. 8 south of Sasco Road, those Road and the portion of sec. 34 within Calle de la Busca, and the portion of sec portions of secs. 34 and 35 north of the levees of the Santa Cruz River, that 24 north and west of W. Calle de la Pinal Air Park Road, and those portions portion of sec. 35 west of the east levee Busca and Tortolita Road, secs. 28 to 33, of secs. 9, 15, 16, 22, 23, 25, 26, 36 west of the Santa Cruz River, and the portion and that portion of secs. 34 and 35 of west edge of pavement of I–10; T. 11 of sec. 36 within the levees of the Santa within saguaro N.P. administrative S., R. 9 E., secs. 1 to 36; T. 11 S., R. 10 Cruz River; T.13 S., R. 9 E., secs. 1 to boundary; T. 13 S., R. 13 E., sec. 6 1 E., secs 19 and 30, W. ⁄2 of sec. 20, and 18, 22 to 27, and 34 to 36; T. 13 S., R.10 within the channel of the Santa Cruz 1 W. ⁄2 of sec. 29; T. 11 S., R. 11 E. that E., secs. 7, 18 to 19, 29 to 36, and NW River and Canada del Oro and sec. 7 1 1 1 portion of sec. 6 west of west edge of ⁄4 of NW ⁄4 of sec. 6, W. ⁄2 of sec. 17, within the channel of the Santa Cruz pavement of I–10; T. 12 S., R. 9 E., secs. W. 1⁄2 of the SW 1⁄4 of sec. 20; T. 13 S., 1 River and the Rillito River; T. 14 S., R. 1 to 17, 19 to 29, 32 to 35, and W ⁄2 R. 11 E., secs. 13 to 15, 21 to 28, 31 to 9 E., secs. 1 to 3 and 6 to 12; T. 14 S., and SW1⁄4 of sec 32; T. 12 S., R. 10 E., 36, S. 1⁄2 of sec. 9, S. 1⁄2 of sec. 10, and R. 10 E., secs. 1 to 12, 25, and those secs. 6 to 7 and 18; T. 12 S., R. 11 E., S. 1⁄2 of sec. 11, and N.E.1⁄4 of sec. 29; portions of secs. 23, 24 and 26 outside sec. 36; T. 12 S., R. 12 E., sec. 17, 20, T. 13 S., R. 12 E., sec.1 north of the edge the boundary of Tohono O’odham 29, 31 to 32, and those portions of sec. of pavement of Silverbell Road and west 8 south of the edge of pavement of Avra of the east levee of the Santa Cruz River, Nation; T. 14 S., R. 11 E., secs. 1 to 15, Valley Road, that portion of sec. 9 west sec. 2 except that portion south and east 22 to 36; T. 14 S., R. 12 E., secs. 4 to 11, 13 to 22, 24, N. 1⁄2 of 23, N. 1⁄2 of of edge of pavement of I–10 and south of Abington Road., sec. 3, SE 1⁄4 of sec. of the edge of pavement of Avra Valley 4 and the portions of sec. 4 within 30, and those portions of secs. 1 to 3, 12, Road, that portion of sec 15 east of the Saguaro N.P., secs. 5 to 9, those portions and 25 within Tucson Mountain County edge of pavement of Interstate 10, those of secs. 10 to 11 north and west of Park; T. 14 S., R. 13 E., those portions of secs. 7, 18, 19, and 28 to 30 within portions of sec. 16 east of the west Abington Road, NE 1⁄4 and S 1⁄2 of sec. 1 1 1 Tucson Mountain County Park; T. 15 S., levee/bank of the Santa Cruz River, 12, W ⁄2 of the NE ⁄4 and W ⁄2 of sec. 1 1 1 R. 11 E., sec. 3 to 7. those portions of secs. 21 and 22 within 13, E ⁄2 and SW ⁄4 of sec. 14, N ⁄2 of the east and west levies of the Santa the NW 1⁄4 and NW 1⁄4 of the NE 1⁄4 and (ii) Note: Map of Unit 2 follows: VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71057 (9) Unit 3. Pima and Pinal counties, Mountains, Ariz., 1994; Casa Grande, (i) Unit 3: Gila and Salt Principal Arizona. From USGS Silverbell Ariz., 1994 maps. Meridian, Arizona: T. 9 S., R. 10 E., sec. VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 EP27NO02.002 71058 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 36 and S 1⁄2 of sec. 35; T. 10 S., R. 10 m (495 ft.) of the center of Cottonwood the center of Cochie Wash; T.11 S., R.13 E., secs. 1 to 3, 10 to 14, 24, those Wash and its southern branch; T.11 S., E., secs. 28 to 33; T.12 S., R.12 E., secs. portions of secs. 9, 15, 22, 23, 25, 26, 36 R.11 E., secs. 1 to 5, the portion of sec. 1 to 4, 10 to 14, 24, the E 1⁄2 of NE 1⁄4 east of east edge of pavement of I–10, 6 east of the eastern edge of pavement and the SE 1⁄4 of the NE 1⁄4 and the NE and S 1⁄2 of sec. 4 east of the east edge of I–10, E 1⁄2 of sec. 12, and those 1⁄4 of the NW 1⁄4 of sec 5, those portions of pavement of I–10; T.10 S., R.11 E., portions of secs. 12, 13, 14 and 23 that of secs. 9, 15 to 16, 23 east of the east secs. 1 to 13, 23 to 27, 31 to 36, N 1⁄2 are east of the Central Arizona Project edge of pavement of I–10, N 1⁄2 of sec. of sec. 14, N 1⁄2 of sec 15., N 1⁄2 of sec. Canal property and within 150 m (495 25 and the E 3/4 of the S 1⁄2 of sec 25 16, N 1⁄2 of sec. 17, N 1⁄2 of sec. 18, SE ft.) of the center of Cottonwood Wash; excluding the SE 1⁄4 of the SE 1⁄4, and 1⁄4 of sec. 22, S 1⁄2 and NE 1⁄4 of sec. 28, T.11 S., R.12 E., secs. 6, 7, 17, 20, 21, the portions of sec. 26 north of the north and S1⁄4 of sec. 29; T.10 S., R.12 E., Sec. 25 to 28, 34 to 36, SW 1⁄4 of sec. 5, W edge of pavement of Cortaro Farms Road 4 to 9, 16 to 19, N 1⁄2 of sec. 1, S 1⁄2 of 1⁄2 and SE 1⁄4 of sec. 8, W 1⁄2 of sec 16, and east of the east edge of pavement of N 1⁄2 of sec. 2 and the N 1⁄2 of S 1⁄2 of E 1⁄2 and NW 1⁄4 of sec. 18, NE 1⁄4 of sec. I–10; T12S, R13E, secs. 4 to 9, 16 to 21, sec. 2, S 1⁄2 of sec. 3, N 1⁄2 and SW 1⁄4 19, E 1⁄2 of Sec 29, E 1⁄2 and NW 1⁄4 of N 1⁄2 and E 1⁄2 of the SE 1⁄4 of sec 30, of sec 10, NW 1⁄4 of sec. 15, N 1⁄2 and sec. 33, that portion of sec. 5 within 150 W 1⁄2 of the SW 1⁄4 of sec. 29 and that SW 1⁄4 of sec 20, N 1⁄2 and SW 1⁄4 of sec m (495 ft.) of the center of Cottonwood portion of sec 29 north of Cortaro Farm 30, W 1⁄2 of sec 31, and those portions Wash, and those portions of secs. 3, 9, Road and west of Shannon Road. of secs. 28, 29, 31, 32, and 33 within 150 10, 19, and 30 within 150 m (495 ft) of (ii) Note: Map of Unit 3 follows: VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71059 VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4725 E:\FR\FM\27NOP4.SGM 27NOP4 EP27NO02.003 71060 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules (10) Unit 4. Pinal County, Arizona. secs. 7 to 36; T. 8 S., R. 12 E., secs. 18 T. 9 S., R. 12 E., secs. 3 to 11, 13 to 36, From USGS Casa Grande, Ariz., 1994 to 20, 29 to 33, and those portions of and those portions of secs. 1, 2, and 12 and Mammoth, Ariz., 1986 maps. secs. 7, 8, 16,17, 21, 22, 27, 28, 34 and west of edge of pavement of State Route (i) Unit 4: Gila and Salt Principal 35 west of edge of pavement of State 79; T. 9 S., R. 13 E., secs. 19, 32 and 33. Meridian, Arizona: T. 8 S., R. 11 E., Route 79; T. 9 S., R. 11 E., secs. 1 to 36; (ii) Note: Map of Unit 4 follows: VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71061 (11) Unit 5. Pima County, Arizona. Ariz., 1980; Dateland, Ariz., 1980; and USGS Lukeville, Ariz.—Sonona, From BLM Gila Bend, Ariz., 1981; Ajo, Cabeza Prieta Mountains, Ariz., 1980; VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 EP27NO02.004 71062 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 1994 and Quitobaquito Hills, Ariz.— R. 9 W., secs. 1 to 34; T. 15 S., R. 8 W., 4, 9 to 16, 21 to 28, and 35, 36, those Sonora, 1994 maps. secs. 1 to 30; T. 15 S., R. 7 W., secs. 1 portions of secs. 33 and 34 north of (i) Unit 5: Gila and Salt Principal to 30; T. 15 S., R. 6 W., secs. 1 to 30 Mexico.; T. 17 S., R. 5 W., secs. 1 to 36; Meridian, Arizona: T. 12 S., R. 5 W., and 33 to 36; T. 15 S., R. 5 W., secs. 1 T. 17 S., R. 4 W., secs. 4 to 9, 16 to 22, secs. 1 to 5, 8 to 17, 20 to 29, 32 to 36; to 36; T. 15 S., R. 4 W., secs. 4 to 9, 16 25 to 36, and those portions of secs. 3, T. 12 S., R. 4 W., secs. 4 to 9, 16 to 21, to 19, 30 to 31 and those portions of 3, 10, 11, 14, 15, 23, 24 west of Tohono 28 to 33; T. 13 S. R. 7 W. sec. 36; T. 13 10, 15, 20 to 22, 29, 32 west of the O’odham Nation; T. 18 S., R. 6 W., those S., R. 6 W., secs. 19 to 36; T. 13 S., R. Tohono O’odham Nation boundary; T. portions of secs. 1 to 3 within Organ 5 W., secs. 1 to 5, 8 to 17, and 19 to 36; 16 S., R. 10 W., secs. 1 to 5, 8 to 14, Pipe Cactus N.P. and north of Mexico; T. 14 S., R. 10 W., secs. 25 to 28, 32 to those portions of 15 to 18 north of T. 18 S., R. 5 W., secs, 1 to 5, 11, 12 and 36, and the portions of sec. 31 within Mexico, and those portions of secs. 6, 7 those portions of 6 to 10, 13 to 15 within Pima County, Arizona; T. 14 S., R. 9 W., and 18 within Pima County, Arizona; T. Organ Pipe Cactus N.P. and north of secs. 25 to 36; T. 14 S., R. 8 W., secs. 16 S., R. 9 W., secs. 3 to 8, and sec. 18; Mexico; T. 18 S., R. 4 W., secs, 1 to 17, 13 to 16 and 20 to 36; T. 14 S., R. 7 W., T. 16 S., R. 6 W., secs. 1 to 4, 9 to 16, 23, 24 and those portions of secs. 18 to secs. 1 to 4, and 8 to 36; T. 14 S., R. 6 21 to 28, and 33 to 36; T. 16 S., R. 5 W., 22, and 25 to 28 north of Mexico; T. 18 W., secs. 1 to 36; T. 14 S., R. 5 W., secs. secs. 1 to 36; T. 16 S., R. 4 W., secs. 6 1 to 36; T. 15 S., R. 10 W., secs. 1 to to 7, 17 to 20, 29 to 33, and those S., R. 3 W., secs. 6, 7, 18, 19, and 30, 5, 8 to 17, 20 to 29, 32 to 36, and those portions of 5, 8 to 9, 16, 21, 26 to 28, and the portions of sec. 31 north of portions of secs. 6, 7, 18, 19, 30, and 31 34, 35 west of Tohono O’odham Nation Mexico. within Pima County, Arizona; T. 15 S., boundary; T. 17 S., R. 6 W., secs. 1 to (ii) Note: Map of Unit 5 follows: VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules 71063 VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 EP27NO02.005 71064 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Proposed Rules * * * * * Dated: November 15, 2002. Paul Hoffman, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 02–29617 Filed 11–26–02; 8:45 am] BILLING CODE 4310–55–P VerDate 0ct<31>2002 17:12 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 E:\FR\FM\27NOP4.SGM 27NOP4 Wednesday, November 27, 2002 Part VI The President Proclamation 7630—National Family Week, 2002 VerDate 0ct<31>2002 17:20 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\27NOD0.SGM 27NOD0 VerDate 0ct<31>2002 17:20 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00002 Fmt 4717 Sfmt 4717 E:\FR\FM\27NOD0.SGM 27NOD0 71067 Federal Register Presidential Documents Vol. 67, No. 229 Wednesday, November 27, 2002 Title 3— Proclamation 7360 of November 22, 2002 The President National Family Week, 2002 By the President of the United States of America A Proclamation Families provide a loving environment where children can flourish; and they help ensure that cultural traditions and timeless values are passed on to future generations. During National Family Week, we reaffirm the importance of families as a vital source of strength, confidence, and compas- sion for all of our citizens. Strong families play a critical role in developing the character of our Nation. They teach children important standards of conduct such as accepting respon- sibility, respecting others, and distinguishing the difference between right and wrong. By helping America’s youth to grow into mature, thoughtful, and caring citizens, families help make our communities and our Nation safer and more civilized. Raising a child requires sacrifice, commitment, and time; and we must expand our efforts to strengthen and empower families so that they can prepare children more effectively for the challenges of adulthood. We know that by helping couples to build and sustain strong, two-parent families, we will contribute to the well-being of our children and the strength of our society. Many single parents, grandparents, and others also raise their children in difficult circumstances, and these dedicated individuals deserve our respect and support. My Administration is firmly committed to helping our Nation’s youth reach their full potential; and one of the most important ways to do this is by strengthening America’s families. Earlier this year, I signed bipartisan legislation to expand the Promoting Safe and Stable Families Program, which provides States with vital resources to help families stay together and to promote adoption. The Program seeks to prevent child abuse and neglect, avoid removing children from their homes, support family reunification services, and help those children who are unable to return home by providing crucial adoption and post-adoptive services. These important resources ben- efit families across our Nation and hold the promise of a bright future for countless young people. My welfare reform agenda also will strengthen families. We plan on con- tinuing to provide historically high levels of support for childcare and child support enforcement. And we will continue to encourage strong mar- riages and two-parent married families as a worthy policy goal. No marriage or family is perfect. But through education and counseling programs that our faith-based, charitable, and government communities can provide, we will support couples as they work to build and sustain healthy marriages and strive to provide a better quality of life for their children. By promoting responsible child-rearing and strong families, my Administra- tion will work towards the goal that every child has the opportunity to grow up in a safe and loving home. As families come together to celebrate this Thanksgiving, I encourage every member of a family in America to recognize the important role every other family member plays in making their lives whole and more complete. And as we give thanks for the love, commitment, and encouragement our families VerDate 0ct<31>2002 17:20 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00003 Fmt 4705 Sfmt 4790 E:\FR\FM\27NOD0.SGM 27NOD0 71068 Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Presidential Documents provide, we must recommit ourselves to strengthen our Nation by strength- ening our families in ways that government never can. 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 November 24 through November 30, 2002, as National Family Week. I invite the States, commu- nities, and people of the United States to join together in observing this day with appropriate ceremonies and activities to honor our Nation’s families. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-second day of November, in the year of our Lord two thousand two, and of the Independence of the United States of America the two hundred and twenty- seventh. W [FR Doc. 02–30376 Filed 11–26–02; 8:50am] Billing code 3195–01–P VerDate 0ct<31>2002 17:20 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00004 Fmt 4705 Sfmt 4790 E:\FR\FM\27NOD0.SGM 27NOD0 i Reader Aids Federal Register Vol. 67, No. 229 Wednesday, November 27, 2002 CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR 980...... 66529 984...... 70146 Executive orders and proclamations 741–6000 Proclamations: The United States Government Manual 741–6000 993...... 70148 7615...... 67087 1124...... 69668 Other Services 7616...... 67283 1710...... 70150, 70151 Electronic and on-line services (voice) 741–6020 7617...... 67293 1717...... 70151 Privacy Act Compilation 741–6064 7618...... 67295 Ch. XVIII ...... 70529 Public Laws Update Service (numbers, dates, etc.) 741–6043 7619...... 67771 1951...... 69670 TTY for the deaf-and-hard-of-hearing 741–6086 7620...... 67773 3550...... 69670 7621...... 67775 Ch. XLII...... 70529 7622...... 68017 ELECTRONIC RESEARCH Proposed Rules: 7623...... 68751 54...... 66576 World Wide Web 7624...... 68921 272...... 70861 7625...... 69117 278...... 70561 Full text of the daily Federal Register, CFR and other publications 7626...... 69459 is located at: http://www.access.gpo.gov/nara 279...... 70561 7627...... 69657 300...... 67799 Federal Register information and research tools, including Public 7628...... 70831 319...... 67799 Inspection List, indexes, and links to GPO Access are located at: 7629...... 70833 956...... 66578 http://www.archives.gov/federallregister/ Executive Orders: 989...... 70182 E-mail 11846 (Amended by 1000...... 67906 13277) ...... 70305 1001...... 67906 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 12170 (See Notice of 1005...... 67906 an open e-mail service that provides subscribers with a digital November 12, 1006...... 67906 form of the Federal Register Table of Contents. The digital form 2002) ...... 68929 1007...... 67906 of the Federal Register Table of Contents includes HTML and 12807 (See EO 1030...... 67906 PDF links to the full text of each document. 13276) ...... 69985 1032...... 67906, 69910 To join or leave, go to http://listserv.access.gpo.gov and select 12938 (See Notice of 1033...... 67906 Online mailing list archives, FEDREGTOC-L, Join or leave the list November 6, 1124...... 67906 (or change settings); then follow the instructions. 2002) ...... 68751 1126...... 67906 13094 (See Notice of PENS (Public Law Electronic Notification Service) is an e-mail 1131...... 67906 November 6, 1135...... 67906 service that notifies subscribers of recently enacted laws. 2002) ...... 68751 To subscribe, go to http://hydra.gsa.gov/archives/publaws-l.html 13276...... 69985 8 CFR and select Join or leave the list (or change settings); then follow 13277...... 70305 100...... 66532 the instructions. Administrative Orders: 103...... 66532 FEDREGTOC-L and PENS are mailing lists only. We cannot Notices 236...... 66532 respond to specific inquiries. Notice of November 6, 245a...... 66532 2002 ...... 68751 274a...... 66532 Reference questions. Send questions and comments about the Notice of November 299...... 66532 Federal Register system to: [email protected] 12, 2002 ...... 68929 The Federal Register staff cannot interpret specific documents or Memorandums: 9 CFR regulations. Memorandum of 53...... 67089 November 13, 78...... 70309 FEDERAL REGISTER PAGES AND DATE, NOVEMBER 2002 ...... 69465 82...... 70674 93...... 68021 66527–67088...... 1 5 CFR 94...... 66533 67089–67282...... 4 213...... 70119 98...... 68021 67283–67508...... 5 8301...... 67089 Proposed Rules: 67509–67776...... 6 Proposed Rules: 71...... 70864 67777–68016...... 7 960...... 70559 68017–68492...... 8 1001...... 70029 10 CFR 68493–68752...... 12 1...... 70835 68753–68930...... 13 7 CFR 2...... 70835 68931–69118...... 14 1...... 70673 7...... 70835 69119–69458...... 15 29...... 69659 9...... 70835 69459–69656...... 18 51...... 69660 19...... 70835 69657–69986...... 19 301...... 67509, 67777 20...... 70835 69987–70118...... 20 610...... 68495 26...... 70835 70119–70308...... 21 652...... 70119 30...... 70835 70309–70528...... 22 905...... 66527, 70133 31...... 70835 70529–70672...... 25 920...... 70140 33...... 70835 70673–70834...... 26 945...... 66529 39...... 70835 70835–71068...... 27 948...... 68019 50...... 70835 VerDate 0ct 31 2002 19:01 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\27NOCU.LOC 27NOCU ii Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Reader Aids 51...... 70835 234...... 70535 20 CFR 950...... 67540 52...... 70835 Proposed Rules: Proposed Rules: Proposed Rules: 54...... 70835 1...... 69149, 70184 404...... 69161, 69164 948...... 67576 55...... 70835 25...... 70510 416...... 69161, 69164 31 CFR 71...... 70835 39 ...... 67131, 68047, 68052, 422...... 69164 72...... 69987, 70638 68536, 68779, 68782, 68952, 103...... 67547, 68935 75...... 70835 69149, 69152, 69154, 69157, 21 CFR 356...... 68513 100...... 70835 69160, 69491, 69493, 69494, 201...... 70691 Proposed Rules: 110...... 70835 70185, 70187, 70189, 70192, 510...... 67520, 67521 103...... 68540 431...... 70675 70302, 70875 520...... 67521, 68759 800...... 70194 Proposed Rules: 60...... 69149, 70184 522...... 67521, 68760 32 CFR 1...... 67096 61 ...... 69106, 69149, 70184 524...... 67521 2...... 67096 63...... 69149, 70184 872...... 68510 Proposed Rules: 281...... 68956 7...... 67096 71 ...... 66592, 67800, 67801, 874...... 67789 282...... 68957 9...... 67096 68785, 69598, 70564, 70566 880...... 69119 19...... 67096 141...... 69149, 70184 283...... 68963 Proposed Rules: 284...... 68965 20...... 67096 142...... 69149, 70184 101...... 69171 26...... 67096 158...... 70878 776...... 70164 314...... 66593 1293...... 69688 30...... 67096 255...... 69366 589...... 67572, 70707 31...... 67096 399...... 69366 33 CFR 33...... 67096 22 CFR 39...... 67096 15 CFR 110...... 68517 42...... 70839 117 ...... 66552, 66553, 67108, 50 ...... 66578, 66588, 67096, 732...... 70545 121...... 70839 67549, 67551, 68519, 69129, 67800 738...... 70545 69131, 70165, 70550, 70551, 51...... 67096 746...... 70545 23 CFR 70552, 70846 52...... 67096 758...... 70545 41...... 67108 54...... 67096 165 ...... 67110, 67301, 68760, 774...... 70157, 70545 450...... 68512 68762, 69132, 70313, 70696 55...... 67096 655...... 70161 71...... 67096 16 CFR 401...... 67112 Proposed Rules: 72...... 70029 303...... 70835 24 CFR 75...... 67096 110...... 68540 1700...... 66550 982...... 67522 100...... 67096 154...... 69697 155...... 69697 110...... 67096 17 CFR 26 CFR 1021...... 69480 165 ...... 66595, 67342, 70892 1...... 67445 1 ...... 68512, 69468, 70310, 334...... 71014 1022...... 69480 41...... 67445 70845 401...... 70897 11 CFR 190...... 67445 46...... 70845 239...... 69974 301...... 70310 34 CFR 102...... 69928 240...... 67445 601...... 69673 36...... 69654 110...... 69928 274...... 69974 602...... 69468 668...... 69654 12 CFR Proposed Rules: Proposed Rules: 2600...... 67048 2668...... 67048 201...... 67777, 69467 4...... 68785, 69598 1 ...... 67132, 68539, 69496, 2673...... 67048 204...... 67777 210...... 71018 70031, 70707, 70891 2674...... 67048 366...... 69990 228...... 68054, 68790 31...... 67802 229...... 68054, 68790 300...... 67573 2675...... 67048 562...... 70529 2682...... 67048 622...... 68931 240...... 67496, 69430 301...... 67132 244...... 68790 2685...... 67048 722...... 67102 27 CFR 2690...... 67048 1750...... 66533 245...... 69430 249 ...... 68054, 68790, 69430 Proposed Rules: 2694...... 67048 13 CFR 9...... 70352 Proposed Rules: 18 CFR Ch. I ...... 69456 108...... 68498 40...... 67340 121...... 67102, 67253 11...... 70158 275...... 67340 36 CFR Proposed Rules: 101...... 67692, 70006 201...... 67692, 70006 28 CFR 7...... 69473 121...... 70330, 70339 223...... 70165 134...... 70339 352...... 67692, 70006 2...... 67790, 70692 Proposed Rules: 16...... 70163 Proposed Rules: 52...... 70899 14 CFR 35 ...... 67339, 69816, 70194, Proposed Rules: 404...... 69172 1...... 70812 70890 79...... 70892 21...... 70809 101...... 69816, 70890 902...... 70567 37 CFR 154...... 69816, 70890 25...... 68753, 70812 1...... 70847 201...... 69816, 70890 29 CFR 39 ...... 66540, 66541, 66544, 2...... 70847 66547, 66548, 67104, 67297, 346...... 69816, 70890 102...... 70694, 70695 201...... 69134 67510, 67513, 67516, 67518, 352...... 69816, 70890 1910...... 67950 68022, 68024, 68026, 68505, 4022...... 69121 38 CFR 19 CFR 68506, 68508, 68725, 68755, 4044...... 69121 3...... 67792 68932, 69813, 69994, 69996, 4...... 68027 Proposed Rules: 217...... 66554 69999, 70001, 70003, 70004, 19...... 68027 1404...... 70569 70310, 70532, 70638, 70678, 122...... 68027 1910...... 70707 39 CFR 70680, 70682, 70684, 70686, 123...... 68027 501...... 69137, 69478 70688 127...... 68027 30 CFR 3001...... 67552 71 ...... 67253, 68757, 68758, 141...... 68027 915...... 67522 Proposed Rules: 70153, 70533, 70534, 70535, 142...... 68027 917...... 67524, 70007 111...... 69698 70638 178...... 68027 918...... 69123 501...... 70712 73...... 67787, 67788 201...... 68036 938...... 67528 97 ...... 67106, 67299, 70154, Proposed Rules: 943...... 67531 40 CFR 70156, 70812 Ch. 1 ...... 70706 944...... 67534 2...... 67303 VerDate 0ct 31 2002 19:01 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\27NOCU.LOC 27NOCU Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Reader Aids iii 52 ...... 66555, 67113, 67313, 410...... 67318 90 ...... 67348, 68079, 70196 597...... 69600 67563, 68521, 68764, 68767, 411...... 70322 Proposed Rules: 68935, 68941, 69139, 69688, 414...... 67318 48 CFR 171...... 66598 70009, 70011, 70315, 70317, 419...... 66718, 69146 Ch. 1...... 70516, 70522 192...... 68815 70319, 70554, 70555, 70850 Proposed Rules: 4...... 70517 219...... 70809 60...... 70170 52a...... 68548 7...... 70522 225...... 70809 61...... 68526, 70170 Ch. IV...... 70358 17...... 70518 240...... 70809 62...... 67316 405...... 69312 19...... 70522 571...... 67373, 68551 63...... 68038, 70170 412...... 70358 22...... 70518 1520...... 67382 70...... 70319 413...... 70358 25...... 70519 1540...... 67382 80...... 67317 418...... 70363 32...... 70520 1542...... 67382 81 ...... 66555, 68521, 68769 476...... 70358 36...... 70518 1544...... 67382 89...... 68242 482...... 70373 52...... 70519, 70520 1546...... 67382 90...... 68242 484...... 70358 225...... 70323 1548...... 67382 91...... 68242 251...... 70325 94...... 68242 43 CFR 252...... 70325 131...... 68039 3600...... 68778 1808...... 68533 50 CFR 136...... 69952 8200...... 68778 1845...... 68533 17 ...... 67968, 68004, 68450 141...... 68911, 70850 8360...... 68778 1851...... 68533 20...... 67256 142...... 70850 216...... 70180 180 ...... 66561, 67566, 70012 Proposed Rules: 44 CFR 222...... 67793, 67795 271...... 69690 1...... 67762 64...... 67117 5...... 67762 223 ...... 67793, 67795, 68725, 1048...... 68242 65 ...... 67119, 67123, 70696 1051...... 68242 6...... 68914 70809 67 ...... 67125, 67126, 67128, 1065...... 68242 8...... 68914 600...... 69479, 70018 70699, 70700 1068...... 68242 9...... 67282 635...... 68045, 70023 Proposed Rules: 14...... 67762 648 ...... 67568, 69148, 69694, Proposed Rules: 67 ...... 67132, 67133, 67135, 52 ...... 66598, 67345, 67580, 19...... 67762 70027, 70556 70712 68542, 68545, 68804, 68971, 22...... 67762 660...... 69479, 70018 36...... 67762 679 ...... 66575, 67798, 70557, 69702, 70032, 70036, 70357 45 CFR 61...... 68546 52...... 67762, 68914 70858, 70859 Ch. VII...... 70482 62...... 67348, 70640 53...... 67762 Proposed Rules: 63...... 69702 Proposed Rules: 216...... 70388 17 ...... 66599, 67586, 67803, 70...... 70357 1602...... 69498 252...... 70389 68490, 69176, 69177, 69179, 180...... 70036 1611...... 70376 1825...... 68551 70199, 70201, 70202, 70203, 271...... 69703 71032 47 CFR 49 CFR 81 ...... 66598, 68545, 68805 18...... 69078 82...... 67581 0...... 70176 172...... 66571 216...... 68553 131...... 68079, 68971 1...... 67318, 67567 174...... 66571 223...... 69704 27...... 68079 175...... 66571 224...... 69704 41 CFR 54...... 70702, 70703 176...... 66571 226...... 69708 101–37...... 67742, 70480 73 ...... 67568, 69693, 69694, 177...... 66571 300...... 67139 102–33...... 67742 70017, 70177, 70178, 70179, 195...... 70118 600...... 67140, 68556 301...... 69634 70556 244...... 68041 622...... 69502 1027–33...... 70480 76...... 68944 567...... 69600 635...... 69180, 69502 90...... 70704 571...... 69600 648 ...... 69181, 70570, 70904 42 CFR Proposed Rules: 574...... 69600 660...... 70573 405...... 66718, 69146 73...... 69703, 70195 575...... 67491, 69600 697...... 68556 VerDate 0ct 31 2002 19:01 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4712 E:\FR\FM\27NOCU.LOC 27NOCU iv Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Reader Aids REMINDERS TREASURY DEPARTMENT AGRICULTURE California; comments due by The items in this list were Federal claims collection; DEPARTMENT 12-5-02; published 11-5- editorially compiled as an aid published 10-28-02 Food Safety and Inspection 02 [FR 02-28077] to Federal Register users. VETERANS AFFAIRS Service Iowa; comments due by 12- Inclusion or exclusion from DEPARTMENT Meat and poultry inspection: 6-02; published 11-6-02 this list has no legal [FR 02-27838] Adjudication; pensions, Hazard analysis and critical significance. compensation, dependency, control point (HACCP) Hazardous waste program etc.: system— authorizations: RULES GOING INTO Accrued benefits; evidence; Escherichia coli (E. coli) Massachusetts; comments published 10-28-02 0157:H7; beef products due by 12-2-02; published EFFECT NOVEMBER 27, contamination; 10-31-02 [FR 02-27341] 2002 comments due by 12-6- Ohio; comments due by 12- COMMENTS DUE NEXT 02; published 10-7-02 5-02; published 10-21-02 ENERGY DEPARTMENT WEEK [FR 02-25504] [FR 02-26439] Personnel Security Assistance COMMERCE DEPARTMENT FEDERAL Program; security police AGRICULTURE National Oceanic and COMMUNICATIONS officer positions; eligibility DEPARTMENT Atmospheric Administration COMMISSION requirements; published 10- Agricultural Marketing 28-02 Fishery conservation and Common carrier services: Service management: Satellite communications— FEDERAL TRADE Oranges and grapefruit grown COMMISSION West Coast States and Mobile and portable earth in— Western Pacific Textile Fiber Products stations operating in Texas; comments due by fisheries— Identification Act: 1610-1660.5 MHz band; 12-6-02; published 10-7- Coastal pelagic species; Elasterell-p; new generic emissions limits; NTIA 02 [FR 02-25429] comments due by 12-2- fiber name and definition; petition; comments due Oranges, grapefruit, 02; published 10-3-02 published 11-27-02 by 12-2-02; published tangerines, and tangelos [FR 02-25171] 10-3-02 [FR 02-24893] HOUSING AND URBAN grown in Florida DEFENSE DEPARTMENT DEVELOPMENT Digital television stations; table Tree run citrus; shipment DEPARTMENT Acquisition regulations: of assignments: exemption; comments due Public and Indian housing: Foreign acquisition; Idaho; comments due by by 12-6-02; published 10- comments due by 12-6- 12-2-02; published 10-16- Housing Choice Voucher 7-02 [FR 02-25430] Program— 02; published 10-7-02 [FR 02 [FR 02-26233] Raisins produced from grapes 02-24739] Radio services, special: Homeownership option; grown in— eligibility of public ENERGY DEPARTMENT Private land mobile California; comments due by housing agency-owned Federal Energy Regulatory services— 12-2-02; published 11-21- or controlled units; Commission 02 [FR 02-29600] Private safety frequencies published 10-28-02 Electric utilities (Federal Power below-470 MHz band; Tobacco inspection: NUCLEAR REGULATORY Act): coordination; comments COMMISSION Flue-Cured Tobacco Hydroelectric license due by 12-5-02; Advisory Committee; Organization, functions, and regulations; comments published 11-5-02 [FR membership regulations authority delegations: due by 12-6-02; published 02-27976] amendments; comments 9-18-02 [FR 02-23655] Radio stations; table of Public document room due by 12-2-02; published assignments: address change and 10-1-02 [FR 02-24905] ENVIRONMENTAL corrections to information PROTECTION AGENCY Louisiana and Mississippi; collection provisions AGRICULTURE comments due by 12-3- DEPARTMENT Air programs: Correction; published 11- Stratospheric ozone 02; published 10-17-02 Animal and Plant Health 27-02 protection— [FR 02-26360] Inspection Service STATE DEPARTMENT Essential use allowances Television broadcasting: Fruits and vegetables, International Traffic in Arms allocation (2003 CY); Telecommunications Act of imported; quarantine; regulations: comments due by 12-6- 1996; implementation— comments due by 12-2-02; 02; published 11-6-02 U.S. Munitions List; published 10-1-02 [FR 02- Broadcast ownership rules [FR 02-28212] amendments; published 24847] and other rules; biennial 11-27-02 Air programs; approval and regulatory review; Livestock and poultry disease Visas; immigrant promulgation; State plans comments due by 12-2- control: documentation: for designated facilities and 02; published 10-28-02 Low pathogenic avian Classification symbols pollutants: [FR 02-27311] influenza; indemnification; Mississippi; comments due Correction; published 11- comments due by 12-4- FEDERAL EMERGENCY by 12-5-02; published 11- 27-02 02; published 11-4-02 [FR MANAGEMENT AGENCY 5-02 [FR 02-28079] TRANSPORTATION 02-27988] Disaster assistance: Air quality implementation DEPARTMENT Plant-related quarantine, Hazard mitigation planning plans; approval and Federal Aviation domestic: and Hazard Mitigation Administration promulgation; various Grant Program; comments Karnal bunt; comments due States; air quality planning Airworthiness directives: by 12-2-02; published 10- due by 12-2-02; published purposes; designation of 10-1-02 [FR 02-24998] Britax Sell GmbH & Co.; 3-02 [FR 02-25160] areas: published 10-23-02 HEALTH AND HUMAN Plant-related quarantine, Washington; comments due SERVICES DEPARTMENT TREASURY DEPARTMENT foreign: by 12-2-02; published 11- Internal Revenue Service Fruits and vegetables, 1-02 [FR 02-27834] Centers for Medicare & Medicaid Services Excise taxes: imported Air quality implementation Liability for insurance Correction; comments due plans; approval and Medicare and medicaid: premium; published 11-27- by 12-2-02; published promulgation; various Hospitals, long-term care 02 11-7-02 [FR 02-28349] States: facilities, and home health VerDate 0ct 31 2002 19:01 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\27NOCU.LOC 27NOCU Federal Register / Vol. 67, No. 229 / Wednesday, November 27, 2002 / Reader Aids v agencies; immunization Noncommercial educational Boeing; comments due by standards; participation broadcasting compulsory 12-2-02; published 10-16- conditions; comments due license; rate adjustments; 02 [FR 02-26203] LIST OF PUBLIC LAWS by 12-2-02; published 10- comments due by 12-2- Eurocopter France; 2-02 [FR 02-25096] 02; published 10-30-02 comments due by 12-2- This is a continuing list of Medicare and Medicaid: [FR 02-27364] 02; published 10-2-02 [FR public bills from the current Programs of All-inclusive NUCLEAR REGULATORY 02-24989] session of Congress which Care for Elderly; program COMMISSION Sikorsky; comments due by have become Federal laws. It may be used in conjunction revisions; comments due Fitness-for-duty programs: 12-2-02; published 10-3- by 12-2-02; published 10- 02 [FR 02-24994] with ‘‘PLUS’’ (Public Laws Enforcement actions; policy Update Service) on 202–741– 1-02 [FR 02-24858] Airworthiness standards: statement; comments due 6043. This list is also HEALTH AND HUMAN by 12-2-02; published 10- Transport category available online at http:// SERVICES DEPARTMENT 31-02 [FR 02-27592] airplanes— www.nara.gov/fedreg/ Food and Drug SECURITIES AND Trim systems and plawcurr.html. Administration EXCHANGE COMMISSION protective breathing The text of laws is not Human drugs: Investment advisers: equipment; comments due by 12-2-02; published in the Federal Ingrown toenail relief Proxy voting; comments due products (OTC); published 10-2-02 [FR Register but may be ordered by 12-6-02; published 9- 02-25055] in ‘‘slip law’’ (individual comments due by 12-3- 26-02 [FR 02-24410] 02; published 10-4-02 [FR Class D airspace; comments pamphlet) form from the 02-25251] Securities and investment due by 12-1-02; published Superintendent of Documents, companies: U.S. Government Printing INTERIOR DEPARTMENT 10-24-02 [FR 02-26582] Proxy voting policies and Office, Washington, DC 20402 Land Management Bureau Class E airspace; comments records disclosure by due by 12-2-02; published (phone, 202–512–1808). The Land resource management: registered management 11-1-02 [FR 02-27844] text will also be made Recreation permits for public investment companies; available on the Internet from lands; comments due by comments due by 12-6- TREASURY DEPARTMENT GPO Access at http:// 12-2-02; published 10-1- 02; published 9-26-02 [FR Alcohol, Tobacco and www.access.gpo.gov/nara/ 02 [FR 02-24749] 02-24409] Firearms Bureau nara005.html. Some laws may INTERIOR DEPARTMENT Securities: Alcohol, tobacco, and other not yet be available. excise taxes: Fish and Wildlife Service Banks, savings associations, Large cigars; elimination of H.J. Res. 124/P.L. 107–294 Endangered and threatened and savings banks; statistical classes; Making further continuing species: definition of terms and specific exemptions; comments due by 12-5- appropriations for the fiscal Critical habitat 02; published 11-5-02 [FR year 2003, and for other designations— comments due by 12-5- 02; published 11-5-02 [FR 02-27973] purposes. (Nov. 23, 2002; 116 Keck’s checkermallow; 02-28097] Alcoholic beverages: Stat. 2062) comments due by 12-2- Wine; labeling and S. 1214/P.L. 107–295 02; published 10-31-02 TRANSPORTATION advertising— [FR 02-27649] DEPARTMENT Maritime Transportation Fruit and agricultural Scotts Valley polygonum; Coast Guard Security Act of 2002 (Nov. 25, wines; amelioration; comments due by 12-6- Ports and waterways safety: 2002; 116 Stat. 2064) technical amendments; 02; published 11-21-02 Last List November 15, 2002 Miami Captain of Port Zone, comments due by 12-2- [FR 02-29621] FL; security zones; 02; published 10-3-02 Sacramento splittail; comments due by 12-5- [FR 02-24924] comments due by 12-2- 02; published 11-5-02 [FR Public Laws Electronic 02; published 10-31-02 02-28089] TREASURY DEPARTMENT Internal Revenue Service Notification Service [FR 02-27648] Regattas and marine parades: Excise taxes: (PENS) INTERIOR DEPARTMENT Winterfest Boat Parade; Surface Mining Reclamation comments due by 12-2- Highway vehicle; definition; and Enforcement Office 02; published 10-31-02 comments due by 12-4- PENS is a free electronic mail Permanent program and [FR 02-27665] 02; published 8-16-02 [FR notification service of newly 02-20908] abandoned mine land TRANSPORTATION enacted public laws. To Income taxes, etc.: reclamation plan DEPARTMENT subscribe, go to http:// Tax shelter disclosure hydra.gsa.gov/archives/ submissions: Federal Aviation statements; modification; publaws-l.html or send E-mail West Virginia; comments Administration due by 12-6-02; published cross-reference; to [email protected] Air carrier certification and 11-6-02 [FR 02-28202] comments due by 12-2- with the following text operations: 02; published 10-22-02 message: JUSTICE DEPARTMENT Transport category [FR 02-26725] Privacy Act; implementation; SUBSCRIBE PUBLAWS-L airplanes— Procedure and administration: comments due by 12-2-02; Your Name. Passenger and flight published 10-31-02 [FR 02- Potentially abusive tax attendant seats; 27596] shelters; preparation, Note: This service is strictly improved maintenance, and for E-mail notification of new LIBRARY OF CONGRESS crashworthiness; furnishing lists of laws. The text of laws is not Copyright Office, Library of comments due by 12-3- investors; cross-reference; available through this service. Congress 02; published 10-4-02 comments due by 12-2- PENS cannot respond to Copyright Arbitration Royalty [FR 02-25051] 02; published 10-22-02 specific inquiries sent to this Panel rules and procedures: Airworthiness directives: [FR 02-26727] address. VerDate 0ct 31 2002 19:01 Nov 26, 2002 Jkt 200001 PO 00000 Frm 00005 Fmt 4712 Sfmt 4711 E:\FR\FM\27NOCU.LOC 27NOCU