3–6–03 Thursday Vol. 68 No. 44 Mar. 6, 2003 Pages 10651–10952

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1 II Federal Register / Vol. 68, No. 44 / Wednesday, March 6, 2003

The FEDERAL REGISTER is published daily, Monday through SUBSCRIPTIONS AND COPIES Friday, except official holidays, by the Office of the Federal Register, National Archives and Records Administration, PUBLIC Washington, DC 20408, under the Federal Register Act (44 U.S.C. Subscriptions: Ch. 15) and the regulations of the Administrative Committee of Paper or fiche 202–512–1800 the Federal Register (1 CFR Ch. I). The Superintendent of Assistance with public subscriptions 202–512–1806 Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official edition. General online information 202–512–1530; 1–888–293–6498 Single copies/back copies: The Federal Register provides a uniform system for making available to the public regulations and legal notices issued by Paper or fiche 202–512–1800 Federal agencies. These include Presidential proclamations and Assistance with public single copies 1–866–512–1800 Executive Orders, Federal agency documents having general (Toll-Free) applicability and legal effect, documents required to be published FEDERAL AGENCIES by act of Congress, and other Federal agency documents of public interest. Subscriptions: Paper or fiche 202–741–6005 Documents are on file for public inspection in the Office of the Federal Register the day before they are published, unless the Assistance with Federal agency subscriptions 202–741–6005 issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see http:// www.archives.gov/federallregister/. What’s NEW! The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication Federal Register Table of Contents via e-mail established under the Federal Register Act. Under 44 U.S.C. 1507, Subscribe to FEDREGTOC, to receive the Federal Register Table of the contents of the Federal Register shall be judicially noticed. Contents in your e-mail every day. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge as one of the databases If you get the HTML version, you can click directly to any document on GPO Access, a service of the U.S. Government Printing Office. in the issue. The online edition of the Federal Register is issued under the To subscribe, go to http://listserv.access.gpo.gov and select: authority of the Administrative Committee of the Federal Register Online mailing list archives as the official legal equivalent of the paper and microfiche editions (44 U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each FEDREGTOC-L day the Federal Register is published and it includes both text Join or leave the list and graphics from Volume 59, Number 1 (January 2, 1994) forward. Then follow the instructions. GPO Access users can choose to retrieve online Federal Register documents as TEXT (ASCII text, graphics omitted), PDF (Adobe Portable Document Format, including full text and all graphics), or SUMMARY (abbreviated text) files. Users should carefully check retrieved material to ensure that documents were properly downloaded. On the World Wide Web, connect to the Federal Register at http:/ /www.access.gpo.gov/nara. Those without World Wide Web access can also connect with a local WAIS client, by Telnet to swais.access.gpo.gov, or by dialing (202) 512–1661 with a computer and modem. When using Telnet or modem, type swais, then log in as guest with no password. For more information about GPO Access, contact the GPO Access User Support Team by E-mail at [email protected]; by fax at (202) 512–1262; or call (202) 512–1530 or 1–888–293–6498 (toll free) between 7 a.m. and 5 p.m. Eastern time, Monday–Friday, except Federal holidays. The annual subscription price for the Federal Register paper edition is $699, or $764 for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $264. Six month subscriptions are available for one-half the annual rate. The charge for individual copies in paper form is $10.00 for each issue, or $10.00 for each group of pages as actually bound; or $2.00 for each issue in microfiche form. All prices include regular domestic postage and handling. International customers please add 25% for foreign handling. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard or Discover. Mail to: New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250–7954. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 68 FR 12345.

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2 III

Contents Federal Register Vol. 68, No. 44

Thursday, March 6, 2003

Agency for Healthcare Research and Quality Defense Information Systems Agency NOTICES NOTICES Agency information collection activities; proposals, Privacy Act: submissions, and approvals, 10725–10727 Systems of records, 10709

Agriculture Department Drug Enforcement Administration See Animal and Plant Health Inspection Service NOTICES See Forest Service Applications, hearings, determinations, etc.: Ford, Jeffrey Martin, D.D.S., 10750–10754

Air Force Department Education Department NOTICES NOTICES Privacy Act: Agency information collection activities; proposals, Systems of records, 10704–10705 submissions, and approvals, 10709–10710 Grants and cooperative agreements; availability, etc.: Animal and Plant Health Inspection Service Elementary and secondary education— PROPOSED RULES Improving Literacy Through School Libraries Program, Exportation and importation of animals and animal 10710–10712 products: Postsecondary education— Animal health status of foreign regions; recognition TRIO Dissemination Partnership Program, 10712–10714 requirements, 10667–10668 Employment and Training Administration Army Department RULES Disaster unemployment assistance program; eligibility NOTICES clarification due to September 11 terrorist attacks, Environmental statements; availability, etc.: 10931–10937 Blue Grass Army Depot, KY; chemical warfare materiel NOTICES destruction, 10705–10706 Agency information collection activities; proposals, Privacy Act: submissions, and approvals, 10754–10756 Systems of records, 10706–10709 Energy Department Centers for Disease Control and Prevention NOTICES PROPOSED RULES Committees; establishment, renewal, termination, etc.: Coal mine safety and health: Basic Energy Sciences Advisory Committee, 10714 Respirable coal mine dust; concentration determination, Meetings: 10939–10952 Environmental Management Site-Specific Advisory NOTICES Board— Meetings: Chairs, 10714–10715 Childhood Lead Poisoning Prevention Advisory Hanford Site, WA, 10714 Committee, 10727 National Petroleum Council, 10715 Vaccine information materials: Measles, mumps, and rubella vaccines, 10727–10729 Environmental Protection Agency RULES Coast Guard Air programs; approval and promulgation; State plans for NOTICES designated facilities and pollutants: Agency information collection activities; proposals, New Hampshire, 10659–10661 submissions, and approvals, 10772–10773 New Jersey, 10661–10662 Rhode Island, 10663–10664 PROPOSED RULES Commerce Department Air programs; approval and promulgation; State plans for See International Trade Administration designated facilities and pollutants: See National Oceanic and Atmospheric Administration New Hampshire, 10680 New Jersey, 10680–10681 Defense Department Rhode Island, 10681 See Air Force Department Small Business Liability Relief and Brownfields See Army Department Revitalization Act; implementation: See Defense Information Systems Agency Federal standards for conducting all appropriate inquiry; NOTICES negotiated rulemaking committee; intent to establish, Agency information collection activities; proposals, 10675–10680 submissions, and approvals, 10704 NOTICES Meetings: Agency information collection activities; proposals, Science Board, 10704 submissions, and approvals, 10715–10723

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Reports and guidance documents; availability, etc.: Forest Service World Trade Center disaster; exposure and human health NOTICES evaluation of airborne pollution and toxicological Environmental statements; notice of intent: effects of fine particle matter, 10723–10724 Deschutes National Forest, OR, 10684–10685 Meetings: Executive Office of the President Black Hills National Forest Advisory Board, 10685 See Presidential Documents See Trade Representative, Office of United States Health and Human Services Department See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention Federal Aviation Administration See Food and Drug Administration RULES See Health Resources and Services Administration Airworthiness directives: See National Institutes of Health Wytwornia Sprzetu Komunikacyjnego (WSK) PZL- See Substance Abuse and Mental Health Services Rzeszow S.A., 10653–10654 Administration Class E airspace, 10654–10655 NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Aeronautical land-use assurance; waivers: Diabetes Detection Program, 10725 Charlottesville-Albemarle Airport, VA, 10773 Passenger facility charges; applications, etc.: Health Resources and Services Administration Pangborn Memorial Airport, WA, 10773–10774 NOTICES Technical standard orders: Agency information collection activities; proposals, Airborne navigation sensors using Global Positioning submissions, and approvals, 10731 System augmented by Local Area Augmentation System, 10774–10775 Homeland Security Department RULES Federal Communications Commission Lobbying restrictions, 10911–10919 RULES Nondiscrimination on basis of disability in federally Digital television stations; table of assignments: conducted programs or activities, 10885–10890 Pennsylvania, 10664 Nondiscrimination on basis of race, color, or national origin Radio stations; table of assignments: in programs or activities receiving Federal financial Oklahoma and Texas, 10665 assistance, 10903–10910 Television stations; table of assignments: Nondiscrimination on basis of sex in education programs or Maine, 10665 activities receiving Federal financial assistance, 10891– PROPOSED RULES 10902 Radio stations; table of assignments: Organization, functions, and authority delegations: Michigan, 10683 Immigration law enforcement, 10921–10924 Oregon, 10681–10682 Various States, 10682–10683 Housing and Urban Development Department Television stations; table of assignments: NOTICES California, 10683 Agency information collection activities; proposals, NOTICES submissions, and approvals, 10747–10748 Common carrier services: Reports and guidance documents; availability, etc.: Federal universal service support mechanisms; Alternative fuel vehicle reports (1999-2001), 10748 alternative contribution methodologies; staff study, 10724–10725 Interior Department NOTICES Federal Highway Administration Coal leases, exploration licenses, etc.: NOTICES North Dakota, 10749 Environmental statements; notice of intent: Bossier Parish, LA, et al., 10775–10776 Internal Revenue Service RULES Income taxes: Federal Mediation and Conciliation Service Earned income credit, 10655–10656 RULES NOTICES Arbitration services: Agency information collection activities; proposals, Fee schedules, 10659 submissions, and approvals, 10777–10778 Committees; establishment, renewal, termination, etc.: Food and Drug Administration Internal Revenue Service Advisory Council and PROPOSED RULES Information Reporting Program Advisory Committee, Public Health Security and Bioterrorism Preparedness and 10778–10779 Response Act of 2002; implementation: Food facilities registration International Trade Administration Correction, 10668–10675 NOTICES NOTICES Antidumping: Agency information collection activities; proposals, Ball bearings and parts from— submissions, and approvals, 10730–10731 China, 10685–10690

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Heavy forged tools, finished or unfinished, with or Office of United States Trade Representative without handles, from— See Trade Representative, Office of United States China, 10690–10694 Preserved mushrooms from— Personnel Management Office China, 10694–10703 PROPOSED RULES International Trade Commission Practice and procedure: NOTICES Agency regulations; posting notices, 10666–10667 Import investigations: NOTICES Sildenafil or any pharmaceutically acceptable salt, such Agency information collection activities; proposals, as sildenafil citrate, and products containing same, submissions, and approvals, 10757 10749–10750 Presidential Documents Justice Department ADMINISTRATIVE ORDERS See Drug Enforcement Administration Afghanistan and Jordan; drawdown authorization See Prisons Bureau (Presidential Determination No. 2003-15 of February 13, 2003), 10651 Labor Department See Employment and Training Administration See Mine Safety and Health Administration Prisons Bureau NOTICES RULES Agency information collection activities; proposals, Inmate control, custody, care, etc.: submissions, and approvals, 10754 Visiting regulations; prior relationship, 10656–10659 Mine Safety and Health Administration Securities and Exchange Commission PROPOSED RULES Coal mine safety and health: NOTICES Respirable coal mine dust; concentration determination, Investment Company Act of 1940: 10939–10952 Deregistration applications— Underground coal mine operators’ dust control plans and Cathay Securities Fund, Inc., et al., 10758–10759 compliance sampling for respirable dust; verification, Securities Exchange Act: 10783–10884 Fee rates; mid-year adjustment, 10925–10930

Mississippi River Commission Small Business Administration NOTICES NOTICES Meetings; Sunshine Act, 10756–10757 Meetings: Regulatory Fairness Boards— National Institutes of Health Region IX; hearing, 10759 NOTICES Region VIII; hearing, 10759 Agency information collection activities; proposals, submissions, and approvals, 10731–10732 Inventions, Government-owned; availability for licensing, State Department 10732–10733 NOTICES Meetings: Committees; establishment, renewal, termination, etc.: National Cancer Institute, 10733–10735 North Pacific Anadromous Fish Commission, U.S. National Center for Complementary and Alternative Section Advisory Panel, 10759 Medicine, 10735 Grants and cooperative agreements; availability, etc.: National Heart, Lung, and Blood Institute, 10735–10736 US/Ukraine Policy Dialog Exchange, 10759–10762 National Human Genome Research Institute, 10736 Vietnam Fulbright Foreign Student Exchange Program, National Institute of Allergy and Infectious Diseases, 10762–10765 10738–10739 Reports and guidance documents; availability, etc.: National Institute of Diabetes and Digestive and Kidney Illegal, unregulated, and unreported fishing; prevention, Diseases, 10737–10738 deterrence, and elimination; national plan of action, National Institute of Environmental Health Sciences, 10765 10737, 10739 National Institute of General Medical Sciences, 10737, Substance Abuse and Mental Health Services 10739–10740 Administration National Institute of Mental Health, 10736, 10738–10740 NOTICES Scientific Review Center, 10740–10743 Federal agency urine drug testing; certified laboratories Organization, functions, and authority delegations: meeting minimum standards, list, 10745–10746 Management Office, 10743–10744 Meetings: Patent licenses; non-exclusive, exclusive, or partially Drug Testing Advisory Board, 10746–10747 exclusive: Virosys Pharmaceuticals, Inc., 10744–10745 Surface Transportation Board National Oceanic and Atmospheric Administration NOTICES NOTICES Motor carriers: Environmental statements; notice of intent: Finance transactions— Gray whale subsistence quotas; impacts, 10703–10704 Coach USA, Inc., et al., 10776–10777

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Trade Representative, Office of United States Part III NOTICES Homeland Security Department, 10885–10890 Trade Act of 1974: Steel wire garment hangers from China; import Part IV restrictions, 10765–10767 Homeland Security Department, 10891–10902 World Trade Organization: Mexico; consultations regarding antidumping measures Part V on— Homeland Security Department, 10903–10910 Gray portland cement and cement clinker, 10768– 10770 Oil country tubular goods, 10767–10768 Part VI Homeland Security Department, 10911–10919 Transportation Department See Coast Guard Part VII See Federal Aviation Administration Homeland Security Department, 10921–10924 See Federal Highway Administration See Surface Transportation Board Part VIII NOTICES Securities and Exchange Commission, 10925–10930 Air carriers: U.S. passenger airlines agreements— Part IX Delta/Northwest/Continental, 10770–10772 Labor Department, Employment and Training Treasury Department Administration, 10931–10937 See Internal Revenue Service NOTICES Part X Organization, functions, and authority delegations: Health and Human Services Department, Centers for Customs Commissioner’s revenue functions authority; Disease Control and Prevention; Labor Department, transfer to Homeland Security Department, 10777 Mine Safety and Health Administration, 10939–10952 Veterans Affairs Department NOTICES Agency information collection activities; proposals, Reader Aids submissions, and approvals, 10779–10782 Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Separate Parts In This Issue To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Part II listserv.access.gpo.gov and select Online mailing list Labor Department, Mine Safety and Health Administration, archives, FEDREGTOC-L, Join or leave the list (or change 10783–10884 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 Administrative Orders: Presidential Determinations: No. 2003-15 of February 13, 2003 ...... 10651 5 CFR Proposed Rules: 110...... 10666 6 CFR 9...... 10912 15...... 10886 17...... 10892 21...... 10904 8 CFR 1...... 10922 2...... 10922 103...... 10922 239...... 10922 9 CFR Proposed Rules: 92...... 10667 14 CFR 39...... 10653 71...... 10654 20 CFR 625...... 10932 21 CFR Proposed Rules: 1...... 10668 26 CFR 1...... 10655 28 CFR 540...... 10656 29 CFR 1404...... 10659 30 CFR Proposed Rules: 70...... 10784 72 (2 documents) ...... 10940 75...... 10784 90...... 10784 40 CFR 62 (3 documents) ...... 10659, 10661, 10663 Proposed Rules: Ch. I ...... 10675 62 (3 documents) ...... 10680, 10681 47 CFR 73 (3 documents) ...... 10664, 10665 Proposed Rules: 73 (4 documents) ...... 10681, 10682, 10683

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Federal Register Presidential Documents Vol. 68, No. 44

Thursday, March 6, 2003

Title 3— Presidential Determination No. 2003–15 of February 13, 2003

The President Presidential Determination to Authorize a Drawdown for Af- ghanistan and Jordan

Memorandum for the Secretary of State [and] the Secretary of Defense

Pursuant to the authority vested in me by the laws and Constitution of the United States, including section 202 and other relevant provisions of the Afghanistan Freedom Support Act (Public Law 107–327) (the ‘‘Act’’) and section 506 of the Foreign Assistance Act of 1961, as amended, 22 U.S.C. 2318, I hereby direct the drawdown of up to $165 million of defense articles, defense services, and military education and training from the De- partment of Defense, $158 million for the Transitional Islamic State of Af- ghanistan, and $7 million to Jordan to assist in its operations in Afghanistan, and further have determined, in accordance with section 205 of the Act, that such assistance to Jordan is important to the national security interests of the United States. The Secretary of State is authorized and directed to report this determination to the Congress and to publish this determination in the Federal Register. W THE WHITE HOUSE, Washington, February 13, 2003.

[FR Doc. 03–5464 Filed 3–5–03; 8:45 am] Billing code 4710–10–P

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Rules and Regulations Federal Register Vol. 68, No. 44

Thursday, March 6, 2003

This section of the FEDERAL REGISTER Region, Office of the Regional Counsel, Immediate Adoption of This AD contains regulatory documents having general Attention: Rules Docket No. 2002–NE– Since it was found that immediate applicability and legal effect, most of which 20–AD, 12 New England Executive Park, corrective action was required, notice are keyed to and codified in the Code of Burlington, MA 01803–5299. Comments Federal Regulations, which is published under and opportunity for prior public 50 titles pursuant to 44 U.S.C. 1510. may be inspected at this location, by comment thereon were impracticable appointment, between 8 a.m. and 4:30 and contrary to the public interest, and The Code of Federal Regulations is sold by p.m., Monday through Friday, except good cause existed to make the AD the Superintendent of Documents. Prices of Federal holidays. Comments may also effective immediately on August 27, new books are listed in the first FEDERAL be sent via the Internet using the 2002, to all known U.S. owners and REGISTER issue of each week. following address: ‘‘9–ane– operators of WSK PZL–Rzeszow S.A. [email protected]’’. Comments sent Franklin 6A–350–C1, –C1A, –C1L, –C2, DEPARTMENT OF TRANSPORTATION via the Internet must contain the docket –C2A, and 4A–235 series reciprocating number in the subject line. engines. These conditions still exist, and the AD is hereby published in the Federal Aviation Administration FOR FURTHER INFORMATION CONTACT: Federal Register as an amendment to Richard Woldan, Aerospace Engineer, 14 CFR Part 39 section 39.13 of part 39 of the Federal Engine Certification Office, FAA, Engine Aviation Regulations (14 CFR part 39) to [Docket No. 2002–NE–20–AD; Amendment and Propeller Directorate, 12 New make it effective to all persons. 39–13077; AD 2003–05–01] England Executive Park; Burlington, MA Comments Invited RIN 2120–AA64 01803–5299; telephone (781) 238–7136; fax (781) 238–7199. Although this action is in the form of Airworthiness Directives; Wytwornia a final rule that involves requirements SUPPLEMENTARY INFORMATION: On August Sprzetu Komunikacyjnego (WSK) PZL– affecting flight safety and, thus, was not 27, 2002, the Federal Aviation Rzeszow S.A. Franklin 6A–350–C1, preceded by notice and an opportunity Administration (FAA) issued –C1A, –C1L, –C1R –C2, –C2A, and 4A– for public comment, comments are Emergency airworthiness directive (AD) 235 Series Reciprocating Engines invited on this rule. Interested persons 2002–18–51, that applies to WSK PZL– are invited to comment on this rule by AGENCY: Federal Aviation Rzeszow S.A. Franklin 6A–350–C1, submitting such written data, views, or Administration, DOT. –C1A, –C1L, –C2, –C2A, and 4A–235 arguments as they may desire. ACTION: Final rule, request for series reciprocating engines. That AD Communications should identify the comments. requires before further flight, removing Rules Docket number and be submitted type AC4886 fuel pump, AC P/N in triplicate to the address specified SUMMARY: This amendment supersedes 5656774, PZL P/N 26.11.1710, and under the caption ADDRESSES. All an emergency airworthiness directive prohibits installation of diaphragm type communications received on or before (AD) that was sent previously to all AC4886 fuel pump, AC P/N 5656774, the closing date for comments will be known U.S. owners and operators of PZL P/N 26.11.1710 fuel pump after considered, and this rule may be WSK PZL–Rzeszow S.A. Franklin 6A– receipt of that AD. That action was amended in light of the comments 350–C1, –C1A, –C1L, –C2, –C2A, and prompted by several reports of pump received. Factual information that 4A–235 series reciprocating engines. failure. This condition, if not corrected, supports the commenter’s ideas and This action requires removing could result in reduction or loss of suggestions is extremely helpful in diaphragm type AC4886 fuel pump, AC engine power or external fuel leaks. evaluating the effectiveness of the AD part number (P/N) 5656774, PZL P/N action and determining whether 26.11.1710, before further flight, and Since AD 2002–18–51 was issued, the additional rulemaking action would be prohibits installing diaphragm type FAA has determined that the 6A–350– needed. AC4886 fuel pump, AC P/N 5656774, C1R engine was inadvertently omitted from the applicability of that AD. Comments are specifically invited on PZL P/N 26.11.1710. This amendment is the overall regulatory, economic, prompted by several reports of failures FAA’s Determination of an Unsafe environmental, and energy aspects of of the valves and diaphragms in certain Condition and Required Actions the rule that might suggest a need to diaphragm type AC4886 fuel pumps, AC modify the rule. All comments P/N 5656774, PZL P/N 26.11.1710, and Since the unsafe condition described submitted will be available, both before adds the 6A–350–C1R engine to the is likely to exist or develop on other and after the closing date for comments, applicability. The actions specified by engines of the same type design, the in the Rules Docket for examination by this AD are intended to prevent FAA issued emergency AD 2002–18–51 interested persons. A report that reduction or loss of engine power or to prevent reduction or loss of engine summarizes each FAA-public contact external fuel leaks. power or external fuel leaks. This AD concerned with the substance of this AD DATES: Effective March 21, 2003. requires before further flight, removing will be filed in the Rules Docket. Comments for inclusion in the Rules diaphragm type AC4886 fuel pumps, AC Commenters wishing the FAA to Docket must be received on or before P/N 5656774, PZL P/N 26.11.1710, and acknowledge receipt of their comments May 5, 2003. prohibits installation of diaphragm type submitted in response to this notice ADDRESSES: Submit comments in AC4886 fuel pumps, AC P/N 5656774, must submit a self-addressed, stamped triplicate to the Federal Aviation PZL P/N 26.11.1710, fuel pump after the postcard on which the following Administration (FAA), New England effective date of this AD. statement is made: ‘‘Comments to

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Docket Number 2002–NE–20–AD.’’ The –C2, –C2A, and 4A–235 series reciprocating Issued in Burlington, Massachusetts, on postcard will be date stamped and engines with diaphragm type AC4886 fuel February 27, 2003. returned to the commenter. pump, AC part number (P/N) 5656774, PZL Francis A. Favara, P/N 26.11.1710, installed. These engines are Acting Manager, Engine and Propeller Regulatory Analysis used on, but not limited to AERMACCHI Directorate, , Aircraft Certification Service. This final rule does not have S.p.A. S.205–22/R, Cessna 170, 172, and 175 [FR Doc. 03–5246 Filed 3–5–03; 8:45 am] series, Maule Aerospace Technologies, Inc. federalism implications, as defined in BILLING CODE 4910–13–P Executive Order 13132, because it M–4–220, –220C, –220S, –220T, and M–5– 220C, S.O.C.A.T.A.—Groupe would not have a substantial direct AEROSPATIALE Model MS 894E, Swift effect on the States, on the relationship Museum Foundation Model GC–1B, and DEPARTMENT OF TRANSPORTATION between the national government and Univair Aircraft Corp. (Stinson) 108 series Federal Aviation Administration the States, or on the distribution of airplanes. power and responsibilities among the Note 1: This AD applies to each engine 14 CFR Part 71 various levels of government. identified in the preceding applicability Accordingly, the FAA has not consulted provision, regardless of whether it has been [Docket No. FAA–2003–14346; Airspace with state authorities prior to modified, altered, or repaired in the area Docket No. 2003–ANE–101] publication of this final rule. subject to the requirements of this AD. For The FAA has determined that this engines that have been modified, altered, or Amendment to Class E Airspace; regulation is an emergency regulation repaired so that the performance of the Presque Isle, ME that must be issued immediately to requirements of this AD is affected, the AGENCY: Federal Aviation owner/operator must request approval for an correct an unsafe condition in aircraft, Administration (FAA), DOT. and is not a ‘‘significant regulatory alternative method of compliance in ACTION: Direct final rule; request for action’’ under Executive Order 12866. It accordance with paragraph (c) of this AD. comments. has been determined further that this The request should include an assessment of action involves an emergency regulation the effect of the modification, alteration, or repair on the unsafe condition addressed by SUMMARY: This action revises the Class under DOT Regulatory Policies and this AD; and, if the unsafe condition has not E airspace area at the Northern Maine Procedures (44 FR 11034, February 26, been eliminated, the request should include Regional Airport in Presque Isle, Maine 1979). If it is determined that this specific proposed actions to address it. (KPQI) to eliminate reference to the now emergency regulation otherwise would Compliance: Compliance with this AD is closed Rogers Airport. be significant under DOT Regulatory required before further flight, unless already DATES: Effective 0901 UTC, May 15, Policies and Procedures, a final done. 2003. regulatory evaluation will be prepared To prevent reduction or loss of engine Comments for inclusion in the Rules and placed in the Rules Docket. A copy power or external fuel leaks, do the Docket must be received on or before of it, if filed, may be obtained from the following: April 7, 2003. Rules Docket at the location provided (a) Before further flight, remove diaphragm ADDRESSES: Send comments on the rule under the caption ADDRESSES. type AC4886 fuel pump, AC P/N 5656774, to the Docket Management System, U.S. PZL P/N 26.11.1710. Type AC4886 pumps Department of Transportation, Room List of Subjects in 14 CFR Part 39 might have a metal tag with 4886 attached to Plaza 401, 400 Seventh Street, SW., Air transportation, Aircraft, Aviation a bolt on the upper cover. PZL–Rzeszow has Washington, DC 20590–0001. You must safety, Safety. issued Service Bulletin No. PZL–F/71/2002, dated August 2002 on this subject. identify the docket number, FAA–2003– Adoption of the Amendment (b) After receipt of this AD, do not install 14346 / Airspace Docket No. 03–ANE– Accordingly, pursuant to the diaphragm type AC4886 fuel pump, AC P/N 101, at the beginning of your comments. authority delegated to me by the 5656774, PZL P/N 26.11.1710. You may also submit comments on the Internet at http://dms.dot.gov. You may Administrator, the Federal Aviation Alternative Methods of Compliance Administration amends part 39 of the review the public docket containing the (c) An alternative method of compliance or proposal, any comments received, and Federal Aviation Regulations (14 CFR adjustment of the compliance time that part 39) as follows: any final disposition in person at the provides an acceptable level of safety may be Dockets Office between 9 a.m. and 5 used if approved by the Manager, Engine p.m., Monday through Friday, except PART 39—AIRWORTHINESS Certification Office (ECO). Operators must DIRECTIVES submit their requests through an appropriate Federal holidays. The Docket Office FAA Maintenance Inspector, who may add (telephone 1–800–647–5527) is located 1. The authority citation for part 39 comments and then send it to the Manager, on the plaza level of the Department of continues to read as follows: ECO. Transportation NASSIF Building at the Authority: 49 U.S.C. 106(g), 40113, 44701. Note 2: Information concerning the street address stated above. An informal existence of approved alternative methods of docket may also be examined during § 39.13 [Amended] compliance with this airworthiness directive, normal business hours at the office of 2. Section 39.13 is amended by if any, may be obtained from the ECO. the Regional Air Traffic Division, New adding the following new airworthiness England Region, Federal Aviation directive: Special Flight Permits Administration, 12 New England 2003–05–01 Wytwornia Sprzetu (d) Special flight permits may be issued in Executive Park, Burlington, MA 01803– Komunikacyjnego PZL–Rzeszow: accordance with §§ 21.197 and 21.199 of the 5299. Call the Manager, Airspace Federal Aviation Regulations (14 CFR 21.197 Branch, ANE–520, telephone (781) 238– Amendment 39–13077. Docket No. and 21.199) to operate the airplane to a 2002–NE–20–AD. Supersedes AD 7520; fax (781) 238–7596, to make prior location where the requirements of this AD arrangements for your visit. 2002–18–51. can be done. Applicability: This airworthiness directive FOR FURTHER INFORMATION CONTACT: (AD) is applicable to Wytwornia Sprzetu Effective Date David T. Bayley, Air Traffic Division, Komunikacyjnego (WSK) PZL–Rzeszow S.A. (e) This amendment becomes effective Airspace Branch, ANE–520, Federal Franklin 6A–350–C1, –C1A, –C1L, –C1R, March 21, 2003. Aviation Administration, 12 New

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England Executive Park, Burlington, MA such written data, views, or arguments of the Federal Aviation Regulations (14 01803–5299; telephone (781) 238–7552; as they may desire. Communications CFR part 71) as follows: fax (781) 238–7596. must identify both docket numbers. All SUPPLEMENTARY INFORMATION: Recently, communications received on or before PART 71—[Amended] the Rogers Airport near Easton, Maine, the closing date for comments will be 1. The authority citation for part 71 was abandoned. Since the Rogers considered, and this rule may be continues to read as follows: Airport lay in close proximity to the amended or withdrawn in light of the Northern Maine Regional Airport at comments received. Factual information Authority: 49 U.S.C. 106(g), 40103, 40113, Presque Isle, Maine (KPQI), the Class E that supports the commenter’s ideas and 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1963 Comp., p. 389; 14 CFR 11.69. controlled airspace extending from the suggestions is extremely helpful in surface for Northern Main Regional evaluating the effectiveness of this 2. The incorporation by reference in Airport included an exclusion that action and determining whether 14 CFR 71.1 of Federal Aviation centered on the Rogers Airport. Since additional rulemaking action would be Administration Order 7400.9K, Airspace Rogers Airport is now abandoned, that needed. Designations and Reporting Points, exclusion is no longer needed. This Comments are specifically invited on dated August 30, 2002, and effective amendment will remove the exclusion the overall regulatory, economic, September 16, 2002, is amended as centered on the now abandoned Rogers environmental, and energy aspects of follows: airport from the Class E airspace the rule that might suggest a need to extending from the surface for Northern modify the rule. All comments Subpart E—Class E Airspace Maine Regional Airport. Class E submitted will be available, both before airspace designations for airspace areas and after the closing date for comments, * * * * * designated as a surface area for an in the Rules Docket for examination by Paragraph 6002 Class E airspace areas airport are published in paragraph 6002 interested persons. A report that designated as a surface area for an airport of FAA Order 7400.9K, dated August 30, summarizes each FAA-public contact * * * * * 2002, and effective September 16, 2002, concerned with the substance of this ANE ME E2 Presque Isle, ME [Revised] which is incorporated by reference in 14 action will be filed in the Rules Docket. Northern Maine Regional Airport at Presque CFR 71.1. The Class E airspace Agency Findings designation amended by this document Isle, ME will be amended subsequently in this This rule does not have federalism (Lat. 46°41′20″N, long. 68°02′41″W). Order. implications, as defined in Executive EXCAL LOM Order No. 13132, because it does not ° ′ ″ ° ′ ″ The Direct Final Rule Procedure have a substantial direct effect on the (Lat. 46 36 37 N, long. 68 01 08 W). The FAA anticipates that this States, on the relationship between the Within a 6.8-mile radius of Northern Maine national government and the States, or Regional Airport at Presque Isle, and within regulation will not result in adverse or 2.5 miles on each side of the Northern Maine negative comment, and, therefore, issues on the distribution of power and Regional Airport at Presque Isle 165° bearing it as a direct final rule. The FAA has responsibilities among the various extending from the 6.8-mile radius to 8.2 determined that this regulation only levels of government. Accordingly, the miles southeast of the EXCAL LOM. This involves an established body of FAA has not consulted with state Class E airspace area is effective during the technical regulations for which frequent authorities prior to publication of this specific dates and times established in and routine amendments are necessary rule. advance by a Notice to Airmen. The effective to keep them operationally current. The FAA has determined that this date and time will thereafter be continuously Unless a written adverse or negative regulation is non-controversial and published in the Airport/Facility Directory. comment, or a written notice of intent unlikely to result in adverse or negative * * * * * to submit an adverse or negative comments. For the reasons discussed in Issued in Burlington, MA, on February 11, comment is received within the the preamble, I certify that this 2003. comment period, the regulation will regulation (1) is not a ‘‘significant Thomas R. Davidson, become effective on the date specified regulatory action’’ under Executive Manager, Air Traffic Division, New England above. After the close of the comment Order 12866; (2) is not a ‘‘significant Region. period, the FAA will publish a rule’’ under Department of [FR Doc. 03–5295 Filed 3–5–03; 8:45 am] document in the Federal Register Transportation (DOT) Regulatory BILLING CODE 4910–13–M indicating that no adverse or negative Policies and Procedures (44 FR 11034, comments were received and February 26, 1979); and (3) does not confirming the date on which the final warrant preparation of a Regulatory rule will become effective. If the FAA Evaluation as these routine matters will DEPARTMENT OF THE TREASURY does receive, within the comment only affect air traffic procedures and air Internal Revenue Service period, an adverse or negative comment, navigation. It is certified that these or written notice of intent to submit proposed rules will not have significant 26 CFR Part 1 such a comment, a document economic impact on a substantial withdrawing the direct final rule will be number of small entities under the [TD 9045] published in the Federal Register and a criteria of the Regulatory Flexibility Act. notice of proposed rulemaking may be RIN 1545–BA34 List of Subjects in 14 CFR Part 71 published with a new comment period. Airspace, Incorporation by reference, Earned Income Credit for Taxable Comments Invited Navigation (air). Years Beginning After December 31, Although this action is in the form of 1978 Adoption of the Amendment a direct final rule, and was not preceded AGENCY: Internal Revenue Service (IRS), by a notice of proposed rulemaking, Accordingly, pursuant to the Treasury. interested persons are invited to authority delegated to me, the Federal ACTION: Final regulations. comment on this rule by submitting Aviation Administration amends part 71

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SUMMARY: This document contains final regulations replace the references to regulations thereunder relating to joint regulations relating to the earned section 143 in § 1.32–2(b)(2) with returns of income tax by husband and income credit. The regulations reflect references to section 7703. These wife). The requirements of the changes in the law since the existing regulations also remove the inconsistent preceding sentence do not apply to an regulations were published in the provisions in the existing regulations. eligible individual who is not Federal Register on March 13, 1980. considered as married under section Special Analyses Due to subsequent statutory changes in 7703(b) and the regulations thereunder the applicable tax law, substantial It has been determined that these final (relating to certain married individuals portions of the regulations are no longer regulations are not a significant living apart). in conformity with current law. regulatory action as defined in (3) Length of taxable year. No credit Accordingly, portions of the existing Executive Order 12866. Therefore, a is allowed by section 32 in the case of regulations are removed. These regulatory assessment is not required. It a taxable year covering a period of less regulations apply to individual has also been determined that section than 12 months. However, the rule of taxpayers claiming the earned income 553(b) of the Administrative Procedure the preceding sentence does not apply credit. Act (5 U.S.C. chapter 5) does not apply to a taxable year closed by reason of the to these regulations. Because no notice death of the eligible individual. DATES: Effective Date: These regulations of proposed rulemaking is required, the (c) * * * (1) [Reserved]. are effective March 6, 2003. provisions of the Regulatory Flexibility (2) Earned income. For purposes of FOR FURTHER INFORMATION CONTACT: Act (5 U.S.C. chapter 6) do not apply. this section, earned income is computed Shoshanna Tanner at (202) 622–6080 Pursuant to section 7805(f), these without regard to any community (not a toll-free number). regulations were submitted to the Chief property laws which may otherwise be SUPPLEMENTARY INFORMATION: Counsel for Advocacy of the Small applicable. Earned income is reduced by Background Business Administration for comment any net loss in earnings from self- on their impact on small business. employment. Earned income does not This document contains amendments include amounts received as a pension, to the Income Tax Regulations (26 CFR Drafting Information an annuity, unemployment Part 1) under section 32 of the Internal The principal author of these compensation, or workmen’s Revenue Code (Code). Section 32 allows regulations is Shoshanna Tanner of the compensation, or an amount to which a refundable credit to low-income Office of Division Counsel/Associate section 871(a) and the regulations taxpayers who meet certain income and Chief Counsel (Tax Exempt and thereunder apply (relating to income of eligibility requirements. Section 43 (the Government Entities). However, other nonresident alien individuals not predecessor of section 32) was added to personnel from the IRS and Department connected with United States business). the Code by the Tax Reduction Act of of Treasury participated in their (d) [Reserved]. 1975 (Pub. L. 94–12, 89 Stat. 26) and development. (e) * * * (1) * * *. made permanent by the Revenue Act of (2) Reconciliation of payments 1978 (Pub. L. 95–600, 92 Stat. 2763). List of Subjects in 26 CFR Part 1 advanced and credit allowed. Any Final regulations (TD 7683) under Income taxes, Reporting and additional amount of tax under section 43 were published in the recordkeeping requirements. paragraph (e)(1) of this section is not Federal Register (45 FR 16174) on treated as a tax imposed by chapter 1 of Adoption of Amendments to the March 13, 1980. Section 43 was the Internal Revenue Code for purposes Regulations redesignated as section 32 by the Tax of determining the amount of any credit Reform Act of 1984 (Pub. L. 98–369, 98 Accordingly, 26 CFR Part 1 is (other than the earned income credit) Stat. 494). Section 1.43–2 was amended as follows: allowable under part IV, subchapter A, redesignated as § 1.32–2 in Treasury chapter 1 of the Internal Revenue Code. Decision 8448 (57 FR 54919) on PART 1—INCOME TAXES November 23, 1992. David A. Mader, 1. The authority for part 1 continues Section 1.32–2(b)(2) of the existing Assistant Deputy Commissioner of Internal to read in part as follows: regulations refers to section 143 for an Revenue. explanation of the term ‘‘married Authority: 26 U.S.C. 7805 * * * Approved: February 11, 2003. Pamela F. Olson, individual’’. The provisions of section 2. Section 1.32–2 is amended as Assistant Secretary of the Treasury. 143 were reenacted as section 7703 by follows: the Tax Reform Act of 1986 (Pub. L. 99– 1. Paragraphs (a), (b)(1), (c)(1), and (d) [FR Doc. 03–5339 Filed 3–5–03; 8:45 am] 514, 100 Stat. 2085). are removed and reserved. BILLING CODE 4830–01–P In addition, portions of the existing 2. Paragraphs (b)(2), (b)(3), (c)(2), and regulations are inconsistent with (e)(2) are revised. changes made by the Omnibus Budget The revisions read as follows: DEPARTMENT OF JUSTICE Reconciliation Act of 1990 (Pub. L. 101– 508, 104 Stat. 1388), the Economic § 1.32–2 Earned income credit for taxable Bureau of Prisons Growth and Tax Relief Reconciliation years beginning after December 31, 1978. Act of 2001 (Pub. L. 107–16, 115 Stat. (a) [Reserved]. 28 CFR Part 540 (b) * * * (1) [Reserved]. 38), and various other legislative [BOP–1082–F] enactments. (2) Married individuals. No credit is allowed by section 32 in the case of an RIN 1120–AA77 Explanation of Provisions eligible individual who is married To comport with the redesignation of (within the meaning of section 7703 and Visiting Regulations: Prior section 43 to section 32 and §§ 1.43–2 the regulations thereunder) unless the Relationship to 1.32–2, these final regulations replace individual and spouse file a single AGENCY: Bureau of Prisons, Justice. references to section 43 with references return jointly (a joint return) for the ACTION: Final rule. to section 32. Similarly, these taxable year (see section 6013 and the

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SUMMARY: In this document, the Bureau Summary of Comments Received and and/or a visitor’s ability to visit based of Prisons (Bureau) amends its visiting Agency Response on penological concerns and that further regulations to require that regular The Bureau received comments from restrictions are not necessary. The visiting privileges at all institutions six respondents. Three commenters Bureau assumes that the commenter is ordinarily will be extended to friends expressed concerns about the impact on referring to the Bureau’s discipline and associates only when the family visits (for example, children born procedure (see 28 CFR part 541) when relationship had been established prior after the inmate was incarcerated and he states that the Bureau already has in to confinement. This requirement new extended family members). In place a procedure to restrict an inmate’s currently applies to visiting at Medium response, the Bureau notes that the prior visiting privileges. The Bureau believes that taking action after the fact does not Security Level, High Security Level, and relationship requirement pertains to sufficiently address the threat to the Administrative institutions, but not at friends and associates (28 CFR orderly operation of the visiting room. Low and Minimum Security Level 540.44(c)). The prior relationship The Bureau believes, furthermore, that institutions. The purpose of this requirement does not apply to the prior relationship requirement revision is to provide for uniformity of immediate family members (28 CFR serves a legitimate penological purpose visiting procedures for all security 540.44(a)) and other relatives (28 CFR at all security levels, and that it is levels and to maintain the security and 540.44(b)). good order of the institution while One commenter believed that the necessary to extend the prior continuing to afford inmates with policy could be easily circumvented if relationship requirement to minimum reasonable and equitable access to the proposed visitors were willing to lie and low security level facilities. In visiting. Because the prior relationship about the prior relationship. The Bureau extending the restrictions, the Bureau requirement is to apply to regular believes that visitors would be ill- has chosen to retain the Warden’s visitors, we also clarify the distinction advised to make false statements as discretion to make exceptions to the between regular and special visitors. certain federal penalties apply. prior relationship requirement. After due consideration of the One commenter believes the proposed EFFECTIVE DATE: April 7, 2003. comments received, the Bureau is rule is biased and discourages the ADDRESSES: adopting the proposed rule as final Rules Unit, Office of inmate from making new friends or without change. Members of the public General Counsel, Bureau of Prisons, 320 associates while in prison. This may submit comments concerning this First Street, NW., Washington, DC commenter believes that if a visitor has rule by writing to the previously cited 20534. no criminal record and poses no address. These comments will be security threat to the institution that FOR FURTHER INFORMATION CONTACT: considered but will receive no response they should not be prohibited from Sarah Qureshi, Office of General in the Federal Register. Counsel, Bureau of Prisons, phone (202) visiting. 307–2105. The purpose of the amendment is to Executive Order 12866 maintain the security and good order of SUPPLEMENTARY INFORMATION: The This rule falls within a category of Bureau institutions. In accordance with actions that the Office of Management Bureau amends its regulations on our security review the Bureau believes visiting (28 CFR part 540, subpart D). and Budget (OMB) has determined not it is necessary to standardize the prior to constitute ‘‘significant regulatory We published a proposed rule on this relationship requirement at all security subject on May 18, 1999 (64 FR 27166). actions’’ under section 3(f) of Executive levels. Existing provisions still provide Order 12866 and, accordingly, it was Why Is the Bureau Revising the Visiting for exceptions to the prior relationship not reviewed by OMB. Regulations? rule. The inmate retains access to new friends and associates through Executive Order 13132 As part of a general review of security correspondence and the telephone. This regulation will not have measures at Bureau institutions, this Another commenter believes there is substantial direct effects on the States, revision is to provide for uniformity of no problem with current visiting on the relationship between the national visiting procedures for all security regulations and that the proposed rule government and the States, or on levels and to maintain the security and lacks specificity, does not provide distribution of power and good order of the institution while guidance to staff for administering the responsibilities among the various continuing to afford inmates with regulation, and will lead to a lack of levels of government. Therefore, in reasonable and equitable access to uniformity among institutions. As noted accordance with Executive Order 13132, visiting. The heightened security above, the Bureau believes that for it is determined that this rule does not measures were deemed necessary to security reasons it is necessary to extend have sufficient federalism implications better ensure that inmates do not abuse the prior relationship provision to all to warrant the preparation of a visiting privileges or use them to further Bureau institutions. The Bureau must Federalism Assessment. criminal activity. rely upon the Warden’s correctional Regulatory Flexibility Act Who Is Affected by the Changes Made judgment in making determinations for to the Visiting Regulations? exceptions to the prior relationship The Director of the Bureau of Prisons, requirement. in accordance with the Regulatory Inmates currently confined at low or The final commenter believes the Flexibility Act (5 U.S.C. 605(b)), has minimum security level facilities and current background information reviewed this regulation and by any visitor for such inmate who did not provided by visitors or an NCIC check approving it certifies that this regulation have a relationship with the inmate is sufficient to protect the Bureau’s will not have a significant economic prior to the inmate’s incarceration are interests and that the prior relationship impact upon a substantial number of affected by this change. As of January requirement be removed for medium small entities for the following reasons: 31, 2000, nearly 58,700 federal inmates security and above institutions. This This rule pertains to the correctional (49% of the total inmate population) are commenter states that the Bureau management of offenders committed to housed in low or minimum security already has in place a procedure to the custody of the Attorney General or level facilities. restrict an inmate’s visiting privileges the Director of the Bureau of Prisons,

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and its economic impact is limited to § 540.44 Qualification as regular visitor. legitimate business. The Warden may the Bureau’s appropriated funds. An inmate desiring to have regular not withhold this privilege even though visitors must submit a list of proposed the inmate is in disciplinary status. The Unfunded Mandates Reform Act of visitors to the designated staff. See requirement for the existence of an 1995 § 540.45 for qualification as special established relationship prior to This rule will not result in the visitor. Staff are to compile a visiting list confinement does not apply to consular expenditure by State, local and tribal for each inmate after suitable visitors. governments, in the aggregate, or by the investigation in accordance with (c) Representatives of community private sector, of $100,000,000 or more § 540.51(b) of this part. The list may groups. The Warden may approve visits in any one year, and it will not include: on a recurring basis to representatives significantly or uniquely affect small * * * * * from community groups (for example, governments. Therefore, no actions were (c) Friends and associates. The civic, volunteer, or religious deemed necessary under the provisions visiting privilege ordinarily will be organizations) who are acting in their of the Unfunded Mandates Reform Act extended to friends and associates official capacity. These visits may be for of 1995. having an established relationship with the purpose of meeting with an Small Business Regulatory Enforcement the inmate prior to confinement, unless individual inmate or with a group of Fairness Act of 1996 such visits could reasonably create a inmates. The requirement for the threat to the security and good order of existence of an established relationship This rule is not a major rule as the institution. Exceptions to the prior prior to confinement for visitors does defined by § 804 of the Small Business relationship rule may be made, not apply to representatives of Regulatory Enforcement Fairness Act of particularly for inmates without other community groups. 1996. This rule will not result in an visitors, when it is shown that the (d) Clergy, former or prospective annual effect on the economy of proposed visitor is reliable and poses no employers, sponsors, and parole $100,000,000 or more; a major increase threat to the security or good order of advisors. Visitors in this category in costs or prices; or significant adverse the institution. ordinarily provide assistance in release effects on competition, employment, planning, counseling, and discussion of investment, productivity, innovation, or * * * * * 3. Revise § 540.45 to read as follows: family problems. The requirement for on the ability of United States-based the existence of an established companies to compete with foreign- § 540.45 Qualification as special visitor. relationship prior to confinement for based companies in domestic and Persons in the categories listed in this visitors does not apply to visitors in this export markets. section may qualify as special visitors category. Plain Language Instructions rather than as regular visitors. Visits by 4. Revise § 540.46 to read as follows: special visitors ordinarily are for a We try to write clearly. If you can § 540.46 Attorney visits. suggest how to improve the clarity of specific purpose and ordinarily are not these regulations, call or write Sarah of a recurring nature. Except as Requirements for attorney visits are Qureshi, Rules Unit, Office of General specified, the conditions of visiting for governed by the provisions on inmate Counsel, Bureau of Prisons, 320 First special visitors are the same as for legal activities (see §§ 543.12 through St., Washington, DC 20534; telephone regular visitors. 543.16 of this chapter). Provisions (a) Business visitor. Except for pretrial (202) 307–2105. pertinent to attorney visits for pretrial inmates, an inmate is not permitted to inmates are contained in § 551.117 of List of Subjects in 28 CFR Part 540 engage actively in a business or this chapter. Prisoners. profession. An inmate who was engaged in a business or profession prior to 5. Revise § 540.47 to read as follows: Kathleen Hawk Sawyer, commitment is expected to assign § 540.47 Media visits. Director, Bureau of Prisons. authority for the operation of such Requirements for media visits are business or profession to a person in the Under the rulemaking authority governed by the provisions on contact community. vested in the Attorney General in 5 with news media (see subpart E of this U.S.C. 552(a) and delegated to the Pretrial inmates may be allowed special visitors for the purpose of part). A media representative who Director, Bureau of Prisons, we amend wishes to visit outside his or her official 28 CFR part 540 as set forth below. protecting the pretrial inmate’s business interests. In those instances where an duties, however, must qualify as a SUBCHAPTER C—INSTITUTIONAL inmate has turned over the operation of regular visitor or, if applicable, a special MANAGEMENT a business or profession to another visitor. PART 540—CONTACT WITH PERSONS person, there still may be an occasion § 540.48 [Removed and reserved] IN THE COMMUNITY where a decision must be made which will substantially affect the assets or 6. Remove and reserve § 540.48. 1. Revise the authority citation for 28 prospects of the business. The Warden 7. In § 540.51, redesignate paragraphs CFR part 540 to read as follows: accordingly may permit a special (c) through (g) as paragraphs (d) through Authority: 5 U.S.C. 301, 551, 552a; 18 business visit in such cases. The (h), and add a new paragraph (c) to read U.S.C. 1791, 3621, 3622, 3624, 4001, 4042, Warden may waive the requirement for as follows: 4081, 4082 (Repealed in part as to offenses the existence of an established § 540.51 Procedures. committed on or after November 1, 1987), relationship prior to confinement for 5006–5024 (Repealed October 12, 1984 as to visitors approved under this paragraph. * * * * * offenses committed after that date), 5039; 28 (b) Consular visitors. When it has (c) Verification of special visitor U.S.C. 509, 510. been determined that an inmate is a credentials. Staff must verify the 2. Revise the introductory text and citizen of a foreign country, the Warden qualifications of special visitors. Staff paragraph (c) of § 540.44 to read as must permit the consular representative may request background information follows: of that country to visit on matters of and official assignment documentation

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from the potential visitor for this Unfunded Mandates Reform Act of ENVIRONMENTAL PROTECTION purpose. 1995 AGENCY * * * * * This rule will not result in the 40 CFR Part 62 [FR Doc. 03–5256 Filed 3–5–03; 8:45 am] expenditure by State, local, and tribal BILLING CODE 4410–05–P governments, in the aggregate, or by the [NH–055a; FRL–7458–3] private sector, of $100,000,000 or more Approval and Promulgation of State in any one year, and it will not Plans For Designated Facilities and FEDERAL MEDIATION AND significantly or uniquely affect small Pollutants: New Hampshire; Negative CONCILIATION SERVICE Governments. Therefore, no actions Declaration were deemed necessary under the 29 CFR Part 1404 provisions of the Unfunded Mandates AGENCY: Environmental Protection RIN 3076AA09 Reform Act of 1995. Agency (EPA). ACTION: Arbitration Schedule of Fees Small Business Regulatory Enforcement Direct final rule. Fairness Act of 1996 AGENCY: Federal Mediation and SUMMARY: EPA is approving the sections Conciliation Service. This rule is not a major rule as 111(d) negative declaration submitted by the New Hampshire Department of ACTION: Final rule. defined by section 804 of the Small Business Regulatory Enforcement Environmental Services (DES) on July SUMMARY: The Federal Mediation and Fairness Act of 1996. This rule will not 22, 1998. This negative declaration Conciliation Service is issuing a final result in an annual effect on the adequately certifies that there are no regulation replacing the fee schedule economy of $100,000,000 or more; a existing municipal solid waste (MSW) item for processing requests for panels major increase in costs or prices; or landfills located in the state of New of arbitrators with two new fee schedule significant adverse effects on Hampshire that have accepted waste categories—one for processing requests competition, employment, investment, since November 8, 1987 and that must on-line and the other for requests which productivity, innovation, or on the install collection and control systems require processing by FMCS staff. In ability of United States-based according to EPA’s emissions guidelines addition, FMCS is increasing the rates companies to compete with Foreign- for existing MSW landfills. EPA for requests which require staff based companies in domestic and publishes regulations under sections processing and for requests for lists and export markets. 111(d) and 129 of the Clean Air Act biographic sketches of arbitrators. requiring states to submit control plans List of Subjects in 29 CFR Part 1404 EFFECTIVE DATE: April 7, 2003. to EPA. These state control plans show how states intend to control the FOR FURTHER INFORMATION CONTACT: Administrative practice and emissions of designated pollutants from Vella M. Traynham, Director of procedure, Arbitration, Arbitration fees, designated facilities (e.g., landfills). The Arbitration Services, FMCS, 2100 K Labor Management relations. Street, NW., Washington, DC 20427. state of New Hampshire submitted this Telephone (202) 606–5111; Fax (202) For the reasons set forth in the negative declaration in lieu of a state 606–3749. preamble, FMCS amends 29 CFR part control plan. 1404 as follows: SUPPLEMENTARY INFORMATION: On DATES: This direct final rule is effective on May 5, 2003, without further notice November 25, 2002, FMCS issued PART 1404—ARBITRATION SERVICES proposed regulations to amend the unless EPA receives significant adverse appendix to 29 CFR part 1504 by comment by April 7, 2003. If EPA 1. The authority citation for part 1404 receives adverse comment, we will replacing the general category on the fee continues to read as follows: schedule for requests for panels with publish a timely withdrawal of the two new categories, one for processing Authority: 29 U.S.C. 172 and 29 U.S.C. 173 direct final rule in the Federal Register electronic requests for panels and the et seq. and inform the public that the rule will not take effect. other for requests which require 2. The Appendix to 29 CFR part 1404 ADDRESSES: processing by FMCS staff. FMCS is revised to read as follows: You should address your proposed maintaining the $30.00 fee for written comments to: Mr. Steven Rapp, processing electronic requests but Appendix to 29 CFR Part 1404— Chief, Air Permits, Toxics & Indoor increasing the fee to $50.00 for requests Arbitration Policy; Schedule of Fees Programs Unit, Office of Ecosystem Protection, U.S. EPA, One Congress that must be processed by FMCS staff. Annual listing fee for all arbitrators: $100 for FMCS also proposed increasing the cost the first address; $50 for the second Street, Suite 1100 (CAP), Boston, MA for lists and biographical sketches of address 02114–2023. arbitrators in specific areas from $10.00 Request for panel of arbitrators processed by Copies of the documents relevant to per request plus $.10 per page to $25.00 FMCS staff: $50 this action are available for public per request for $.25 per page. FMCS did Request for panel of arbitrators on-line: inspection during normal business not receive any comments before the $30.00 hours, by appointment at the Office of comment period closed on January 23, Direct appointment of an arbitrator when a Ecosystem Protection, U.S. 2003 and is therefore amending this rule panel is not used: $20.00 per appointment Environmental Protection Agency, as proposed on November 25, 2002. List and biographic sketches of arbitrators in Region I, One Congress Street, 11th a specific area: $25.00 per request plus $.25 floor, Boston, MA. Executive Order 12866 per page. FOR FURTHER INFORMATION CONTACT: John This regulation has been deemed John J. Toner, J. Courcier, (617) 918–1659. significant under section 3(f)(3) of SUPPLEMENTARY INFORMATION: Executive Order 12866 and as such has Chief of Staff. been submitted to and reviewed by the [FR Doc. 03–5063 Filed 3–5–03; 8:45 am] Table of Contents Office of Management and Budget. BILLING CODE 6372–01–M I. What Action is EPA Taking Today?

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II. What is the Origin of the Requirements? IV. When Did New Hampshire Submit federal standard, and does not alter the III. When did the Requirements First Its Negative Declaration? relationship or the distribution of power Become Known? and responsibilities established in the IV. When did New Hampshire Submit its On July 22, 1998, the New Hampshire Department of Environmental Services Clean Air Act. This rule also is not Negative Declaration? subject to Executive Order 13045 V. Regulatory Assessment Requirements (DES) submitted a letter certifying that there are no existing MSW landfills ‘‘Protection of Children from I. What Action Is EPA Taking Today? subject to 40 CFR part 60, subpart B. Environmental Health Risks and Safety EPA is approving the negative section 111(d) and 40 CFR 62.06 Risks’’ (62 FR 19885, April 23, 1997), declaration submitted by the state of provide that when no such designated because it is not economically significant. New Hampshire on July 22, 1998. facilities exist within a state’s In reviewing sections 111(d)/129 State EPA is publishing this negative boundaries, the affected state may Plans, EPA’s role is to approve state declaration without prior proposal submit a letter of ‘‘negative declaration’’ choices, provided that they meet the because the Agency views this as a instead of a control plan. EPA is criteria of the Clean Air Act. In this noncontroversial amendment and publishing this negative declaration at context, in the absence of a prior anticipates no adverse comments. 40 CFR 62.7405. existing requirement for the State to use However, in the proposed rules section V. Regulatory Assessment voluntary consensus standards (VCS), of this Federal Register, EPA is Requirements EPA has no authority to disapprove a publishing a separate document that state plan for failure to use VCS. It Under Executive Order 12866 (58 FR will serve as the proposal to approve would thus be inconsistent with 51735, October 4, 1993), this action is this negative declaration should applicable law for EPA, when it reviews not a ‘‘significant regulatory action’’ and relevant adverse comments be filed. If a state plan, to use VCS in place of a therefore is not subject to review by the EPA receives no significant adverse submission that otherwise satisfies the Office of Management and Budget. For comment by April 7, 2003, this action provisions of the Clean Air Act. Thus, this reason, this action is also not will be effective May 5, 2003. the requirements of section 12(d) of the If EPA receives significant adverse subject to Executive Order 13211, National Technology Transfer and comments by the above date, we will ‘‘Actions Concerning Regulations That Advancement Act of 1995 (15 U.S.C. withdraw this action before the effective Significantly Affect Energy Supply, 272 note) do not apply. This rule does date by publishing a subsequent Distribution, or Use’’ (66 FR 28355, May not impose an information collection document in the Federal Register. EPA 22, 2001). This action merely approves burden under the provisions of the will address all public comments state law as meeting Federal Paperwork Reduction Act of 1995 (44 received in a subsequent final rule requirements and imposes no additional U.S.C. 3501 et seq.) based on the parallel proposed rule requirements beyond those imposed by The Congressional Review Act, 5 published in today’s Federal Register. state law. Accordingly, the U.S.C. 801 et seq., as added by the Small EPA will not institute a second Administrator certifies that this rule Business Regulatory Enforcement comment period on this action. Any will not have a significant economic Fairness Act of 1996, generally provides parties interested in commenting on this impact on a substantial number of small that before a rule may take effect, the action should do so at this time. If EPA entities under the Regulatory Flexibility agency promulgating the rule must receives no comments, this action will Act (5 U.S.C. 601 et seq.). Because this submit a rule report, which includes a be effective May 5, 2003. rule approves pre-existing requirements copy of the rule, to each House of the under state law and does not impose Congress and to the Comptroller General II. What Is the Origin of the any additional enforceable duty beyond Requirements? of the United States. EPA will submit a that required by state law, it does not report containing this rule and other Under section 111(d) of the Clean Air contain any unfunded mandate or required information to the U.S. Senate, Act, EPA published regulations at 40 significantly or uniquely affect small the U.S. House of Representatives, and CFR part 60, subpart B which require governments, as described in the the Comptroller General of the United states to submit plans to control Unfunded Mandates Reform Act of 1995 States prior to publication of the rule in emissions of designated pollutants from (Pub. L. 104–4). the Federal Register. A major rule designated facilities. In the event that a This rule also does not have tribal cannot take effect until 60 days after it state does not have a particular implications because it will not have a is published in the Federal Register. designated facility located within its substantial direct effect on one or more This action is not a ‘‘major rule’’ as boundaries, EPA requires that a negative Indian tribes, on the relationship defined by 5 U.S.C. 804(2). declaration be submitted in lieu of a between the Federal Government and Under section 307(b)(1) of the Clean control plan. Indian tribes, or on the distribution of Air Act, petitions for judicial review of power and responsibilities between the this action must be filed in the United III. When Did the Requirements First Federal Government and Indian tribes, States Court of Appeals for the Become Known? as specified by Executive Order 13175 appropriate circuit by May 5, 2003. On May 30, 1991 (56 FR 24468), EPA (65 FR 67249, November 9, 2000). This Interested parties should comment in proposed emission guidelines for action also does not have Federalism response to the proposed rule rather existing MSW landfills. This action implications because it does not have than petition for judicial review, unless enabled EPA to list existing MSW substantial direct effects on the States, the objection arises after the comment landfills as designated facilities. EPA on the relationship between the national period allowed for in the proposal. specified non-methane organic government and the States, or on the Filing a petition for reconsideration by compounds (NMOC) as a designated distribution of power and the Administrator of this final rule does pollutant by proposing the emission responsibilities among the various not affect the finality of this rule for the guidelines for existing MSW landfills. levels of government, as specified in purposes of judicial review nor does it These guidelines were published in Executive Order 13132 (64 FR 43255, extend the time within which a petition final form on March 12, 1996 (61 FR August 10, 1999), because it merely for judicial review may be filed, and 9905). approves a state rule implementing a shall not postpone the effectiveness of

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such rule or action. This action may not of the Clean Air Act for MWCs. The units subject to the guidelines, be challenged later in proceedings to Federal Plan addresses the including New Jersey, to submit plans to enforce its requirements. (See section implementation and enforcement of the EPA that implement and enforce the 307(b)(2).) emissions guidelines applicable to emission guidelines. The state plans existing large MWC units located in were due on December 19, 1996. If a List of Subjects in 40 CFR Part 62 areas not covered by an approved and state with existing MWC units did not Environmental protection, currently effective state plan. The submit an approvable plan within 2 Administrative practice and procedure, Federal Plan imposes emission limits years after promulgation of the Air pollution control, Intergovernmental and control requirements for existing guidelines (i.e., December 19, 1997), the relations, Reporting and recordkeeping MWC units with individual capacity to Act requires EPA to develop, requirements, Waste treatment and combust more than 250 tons per day of implement, and enforce a Federal Plan disposal. municipal solid waste which will for MWC units in that state. This Dated: February 20, 2003. reduce the designated pollutants: Federal Plan for large MWCs (40 CFR Robert W. Varney, particulate matter, opacity, sulfur part 62, subpart FFF) was promulgated by EPA on November 12, 1998 (63 FR Regional Administrator, EPA New England. dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, 63191). Because New Jersey does not 40 CFR part 62 is amended as follows: cadmium, mercury, and dioxins and have an approved State plan regulating existing large MWCs, they are subject to PART 62—[AMENDED] dibenzofurans. On January 24, 2001, EPA and NJDEP signed a Memoranda of the Federal Plan requirements. 1. The authority citation for part 62 Agreement which is intended to be the What Was Submitted by New Jersey continues to read as follows: mechanism for the transfer of authority and How Did EPA Respond? Authority: 42 U.S.C. 7401–7671q. between the EPA and the NJDEP and defines the policies, responsibilities, On November 9, 1999, New Jersey Subpart EE—New Hampshire and procedures pursuant to the Federal Department of Environmental Protection Plan for large MWCs. (NJDEP) submitted to EPA a request for 2. Subpart EE is amended by adding delegation of authority from EPA to DATES: This direct final rule is effective a new § 62.7405 and a new implement and enforce the Federal Plan undesignated center heading to read as on May 5, 2003 without further notice, for existing large MWCs. On January 17, follows: unless EPA receives adverse comment 2001, EPA prepared and signed a by April 7, 2003. If EPA receives such Memoranda of Agreement (MOA) Emissions From Existing Municipal comment, EPA will publish a timely Solid Waste Landfills between the EPA and the NJDEP that withdrawal in the Federal Register defines the policies, responsibilities, § 62.7405 Identification of plan-negative informing the public that this rule will and procedures pursuant to 40 CFR part declaration. not take effect. 62, subpart FFF and 40 CFR part 60, On July 22, 1998, the New Hampshire ADDRESSES: All comments should be subpart Cb, by which the Federal Plan Department of Environmental Services addressed to: Raymond Werner, Chief, for large MWCs will be administered by submitted a letter certifying that there Air Programs Branch, Environmental both the NJDEP and EPA. The MOA is are no existing municipal solid waste Protection Agency, Region 2 Office, 290 meant to be the mechanism for the landfills in the state subject to the Broadway, 25th Floor, New York, New transfer of authority between the EPA emission guidelines under part 60, York 10007–1866. and the NJDEP. A copy of the MOA is subpart B of this chapter. Copies of New Jersey’s request for available upon request. delegation or the Memoranda of On January 24, 2001, Robert C. Shinn, [FR Doc. 03–5306 Filed 3–5–03; 8:45 am] Agreement are available at the following Commissioner NJDEP, signed the MOA, BILLING CODE 6560–50–P addresses for inspection during normal therefore agreeing to the terms and business hours: Environmental conditions of the MOA and accepting Protection Agency, Region 2 Office, Air responsibility to implement and enforce ENVIRONMENTAL PROTECTION Programs Branch, 290 Broadway, 25th the policies, responsibilities, and AGENCY Floor, New York, New York 10007– procedures of the Federal Plan for large 1866. MWCs. 40 CFR Part 62 New Jersey Department of [Region 2 Docket No. NJ57–251a, FRL– Environmental Protection, Bureau of Air What Action Is EPA Taking? 7459–4] Pollution Control, 401 East State Street, Pursuant to 40 CFR 62.14100, ‘‘Scope Trenton, New Jersey 08625. and Delegation of Authority,’’ EPA is Approval and Promulgation of Plans FOR FURTHER INFORMATION CONTACT: Kirk approving the NJDEP’s request for for Designated Facilities; New Jersey; J. Wieber, Air Programs Branch, delegation of authority to implement Delegation of Authority Environmental Protection Agency, and enforce the MWC Federal Plan and AGENCY: Environmental Protection Region 2 Office, 290 Broadway, 25th to adhere to the terms and conditions Agency (EPA). Floor, New York, New York 10007– prescribed in the MOA. The purpose of ACTION: Direct final rule. 1866, (212) 637–3381. this delegation is to acknowledge SUPPLEMENTARY INFORMATION: NJDEP’s ability to implement a program SUMMARY: The EPA is approving the and to transfer primary implementation New Jersey Department of What Are the Clean Air Act and enforcement responsibility from Environmental Protection’s (NJDEP) Requirements? EPA to NJDEP for existing large MWCs. request for delegation of authority to On December 19, 1995 (60 FR 65387), While NJDEP is delegated the authority implement and enforce the Federal Plan EPA adopted emission guidelines (40 to implement and enforce the MWC for Large Municipal Waste Combustors CFR part 60, subpart Cb) for existing Federal Plan, nothing in the delegation (MWC). On November 12, 1998, EPA Municipal Waste Combustor (MWC) agreement shall prohibit EPA from promulgated the Federal Plan to fulfill units. Section 129 of the Clean Air Act enforcing section 111(d) of the Act or the requirements of sections 111(d)/129 (Act) requires states with existing MWC the Federal Plan for large MWCs.

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The EPA is publishing this rule implications because it does not have relations, Municipal waste combustors, without prior proposal because the substantial direct effects on the states, Reporting and recordkeeping Agency views this as a noncontroversial on the relationship between the national requirements. submittal and anticipates no adverse government and the states, or on the Dated: February 21, 2003. comments. However, in the proposed distribution of power and rules section of this Federal Register responsibilities among the various Jane M. Kenny, publication, EPA is publishing a levels of government, as specified in Regional Administrator, Region 2. separate document that will serve as the Executive Order 13132 (64 FR 43255, Part 62, chapter I, title 40 of the Code proposal to approve the plan revision August 10, 1999). This action merely of Federal Regulations is amended as should adverse comments be filed. This approves a state rule implementing a rule will be effective May 5, 2003 Federal standard, and does not alter the follows: without further notice unless the relationship or the distribution of power PART 62—[AMENDED] Agency receives adverse comments by and responsibilities established in the April 7, 2003. Act. This rule also is not subject to 1. The authority citation for part 62 If the EPA receives adverse Executive Order 13045 ‘‘Protection of continues to read as follows: comments, then EPA will publish a Children from Environmental Health timely withdrawal in the Federal Risks and Safety Risks’’ (62 FR 19885, Authority: 42 U.S.C. 7401–7671q. Register informing the public that the April 23, 1997), because it is not rule will not take effect. EPA will economically significant. Subpart FF—New Jersey address all public comments in a In reviewing plan submissions, EPA’s subsequent final rule based on the role is to approve state choices, 2. Part 62 is amended by adding proposed rule. The EPA will not provided that they meet the criteria of § 62.7603 and an undesignated heading institute a second comment period on the Act. In this context, in the absence to subpart FF to read as follows: this action. Any parties interested in of a prior existing requirement for the Metals, Acid Gases, Organic commenting must do so at this time. State to use voluntary consensus standards (VCS), EPA has no authority Compounds and Nitrogen Oxide Statutory and Executive Order Reviews to disapprove a plan submission for Emissions From Existing Large Under Executive Order 12866 (58 FR failure to use VCS. It would thus be Municipal Waste Combustors With the 51735, October 4, 1993), this action is inconsistent with applicable law for Capacity To Combust Greater Than 250 not a ‘‘significant regulatory action’’ and EPA, when it reviews a plan Tons Per Day of Municipal Solid Waste therefore is not subject to review by the submission, to use VCS in place of a § 62.7603 Identification of plan— Office of Management and Budget. For plan submission that otherwise satisfies delegation of authority. this reason, this action is also not the provisions of the Act. Thus, the subject to Executive Order 13211, requirements of section 12(d) of the (a) On November 9, 1999, the New ‘‘Actions Concerning Regulations That National Technology Transfer and Jersey Department of Environmental Significantly Affect Energy Supply, Advancement Act of 1995 (15 U.S.C. Protection (NJDEP) submitted to the Distribution, or Use’’ (66 FR 28355, May 272 note) do not apply. This rule does Environmental Protection Agency (EPA) 22, 2001). This action merely approves not impose an information collection a request for delegation of authority to state law as meeting Federal burden under the provisions of the implement and enforce the Federal Plan requirements and imposes no additional Paperwork Reduction Act of 1995 (44 (40 CFR part 62, subpart FFF) for Large requirements beyond those imposed by U.S.C. 3501 et seq.). Municipal Waste Combustors (MWC). state law. Accordingly, the The Congressional Review Act, 5 (b) Identification of sources: The Administrator certifies that this rule U.S.C. 801 et seq., as added by the Small Federal Plan applies to existing facilities will not have a significant economic Business Regulatory Enforcement with a MWC unit capacity greater than impact on a substantial number of small Fairness Act of 1996, does not apply 250 tons per day of municipal solid entities under the Regulatory Flexibility because this action is not a rule, as that Act (5 U.S.C. 601 et seq.). Because this term is defined in 5 U.S.C. 804(3). waste. rule approves pre-existing requirements Under section 307(b)(1) of the Act, (c) On January 17, 2001, EPA under state law and does not impose petitions for judicial review of this prepared and signed a Memoranda of any additional enforceable duty beyond action must be filed in the United States Agreement (MOA) between the EPA and that required by state law, it does not Court of Appeals for the appropriate the NJDEP that defines the policies, contain any unfunded mandate or circuit by May 5, 2003. Filing a petition responsibilities, and procedures significantly or uniquely affect small for reconsideration by the Administrator pursuant to 40 CFR part 62, subpart FFF governments, as described in the of this final rule does not affect the and 40 CFR part 60, subpart Cb, by Unfunded Mandates Reform Act of 1995 finality of this rule for the purposes of which the Federal Plan for large MWCs (Pub. L. 104–4). judicial review nor does it extend the will be administered by both the NJDEP This rule also does not have tribal time within which a petition for judicial and EPA. On January 24, 2001, Robert implications because it will not have a review may be filed, and shall not C. Shinn, Commissioner NJDEP, signed substantial direct effect on one or more postpone the effectiveness of such rule the MOA, therefore agreeing to the Indian tribes, on the relationship or action. This action may not be terms and conditions of the MOA and between the Federal Government and challenged later in proceedings to accepting responsibility to enforce and Indian tribes, or on the distribution of enforce its requirements. (See section implement the policies, responsibilities, power and responsibilities between the 307(b)(2).) and procedures of the Federal Plan for Federal Government and Indian tribes, large MWCs. as specified by Executive Order 13175 List of Subjects in 40 CFR Part 62 (65 FR 67249, November 9, 2000). This Environmental protection, Air [FR Doc. 03–5321 Filed 3–5–03; 8:45 am] action also does not have Federalism pollution control, Intergovernmental BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION II. What is the Origin of the Requirements? IV. When Did Rhode Island Submit Its AGENCY III. When did the Requirements First Become Negative Declaration? Known? On May 27, 1998, the Rhode Island 40 CFR Part 62 IV. When did Rhode Island Submit its Negative Declaration? Department of Environmental [RI–1047a; FRL–7458–5] V. Regulatory Assessment Management (DEM) submitted a letter certifying that there are no existing I. What Action Is EPA Taking Today? Approval and Promulgation of State MSW landfills subject to 40 CFR part Plans for Designated Facilities and EPA is approving the negative 60, subpart B. Section 111(d) and 40 Pollutants: Rhode Island; Negative declaration submitted by the state of CFR 62.06 provide that when no such Declaration Rhode Island on May 27, 1998. designated facilities exist within a EPA is publishing this negative state’s boundaries, the affected state AGENCY: Environmental Protection declaration without prior proposal may submit a letter of ‘‘negative Agency (EPA). because the Agency views this as a declaration’’ instead of a control plan. ACTION: Direct final rule. noncontroversial amendment and EPA is publishing this negative anticipates no adverse comments. declaration at 40 CFR 62.7405. SUMMARY: EPA is approving the sections However, in the proposed rules section 111(d) negative declaration submitted V. Regulatory Assessment of this Federal Register, EPA is by the Rhode Island Department of Requirements publishing a separate document that Environmental Management (DEM) on will serve as the proposal to approve Under Executive Order 12866 (58 FR May 27, 1998. This negative declaration this negative declaration should 51735, October 4, 1993), this action is adequately certifies that there are no relevant adverse comments be filed. If not a ‘‘significant regulatory action’’ and existing municipal solid waste (MSW) EPA receives no significant adverse therefore is not subject to review by the landfills located in the state of Rhode comment by April 7, 2003, this action Office of Management and Budget. For Island that have accepted waste since will be effective May 5, 2003. this reason, this action is also not November 8, 1987 and that must install subject to Executive Order 13211, collection and control systems If EPA receives significant adverse comments by the above date, we will ‘‘Actions Concerning Regulations That according to EPA’s emissions guidelines Significantly Affect Energy Supply, for existing MSW landfills. EPA withdraw this action before the effective date by publishing a subsequent Distribution, or Use’’ (66 FR 28355, May publishes regulations under sections 22, 2001). This action merely approves 111(d) and 129 of the Clean Air Act document in the Federal Register. EPA will address all public comments state law as meeting Federal requiring states to submit control plans requirements and imposes no additional to EPA. These state control plans show received in a subsequent final rule based on the parallel proposed rule requirements beyond those imposed by how states intend to control the state law. Accordingly, the emissions of designated pollutants from published in today’s Federal Register. EPA will not institute a second Administrator certifies that this rule designated facilities (e.g., landfills). The will not have a significant economic state of Rhode Island submitted this comment period on this action. Any parties interested in commenting on this impact on a substantial number of small negative declaration in lieu of a state entities under the Regulatory Flexibility control plan. action should do so at this time. If EPA receives no comments, this action will Act (5 U.S.C. 601 et seq.). Because this DATES: This direct final rule is effective be effective May 5, 2003. rule approves pre-existing requirements on May 5, 2003, without further notice under state law and does not impose unless EPA receives significant adverse II. What Is the Origin of the any additional enforceable duty beyond comment by April 7, 2003. If EPA Requirements? that required by state law, it does not receives adverse comment, we will Under section 111(d) of the Clean Air contain any unfunded mandate or publish a timely withdrawal of the Act, EPA published regulations at 40 significantly or uniquely affect small direct final rule in the Federal Register CFR part 60, subpart B which require governments, as described in the and inform the public that the rule will states to submit plans to control Unfunded Mandates Reform Act of 1995 not take effect. emissions of designated pollutants from (Public Law 104–4). ADDRESSES: You should address your designated facilities. In the event that a This rule also does not have tribal written comments to: Mr. Steven Rapp, state does not have a particular implications because it will not have a Chief, Air Permits, Toxics & Indoor designated facility located within its substantial direct effect on one or more Programs Unit, Office of Ecosystem boundaries, EPA requires that a negative Indian tribes, on the relationship Protection, U.S. EPA, One Congress declaration be submitted in lieu of a between the Federal Government and Street, Suite 1100 (CAP), Boston, MA control plan. Indian tribes, or on the distribution of 02114–2023. power and responsibilities between the Copies of the documents relevant to III. When Did the Requirements First Federal Government and Indian tribes, this action are available for public Become Known? as specified by Executive Order 13175 inspection during normal business On May 30, 1991 (56 FR 24468), EPA (65 FR 67249, November 9, 2000). This hours, by appointment at the Office of proposed emission guidelines for action also does not have Federalism Ecosystem Protection, U.S. existing MSW landfills. This action implications because it does not have Environmental Protection Agency, enabled EPA to list existing MSW substantial direct effects on the States, Region I, One Congress Street, 11th landfills as designated facilities. EPA on the relationship between the national floor, Boston, MA. specified non-methane organic government and the States, or on the FOR FURTHER INFORMATION CONTACT: John compounds (NMOC) as a designated distribution of power and J. Courcier, (617) 918–1659. pollutant by proposing the emission responsibilities among the various SUPPLEMENTARY INFORMATION: guidelines for existing MSW landfills. levels of government, as specified in These guidelines were published in Executive Order 13132 (64 FR 43255, Table of Contents final form on March 12, 1996 (61 FR August 10, 1999), because it merely I. What Action is EPA Taking Today? 9905). approves a state rule implementing a

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federal standard, and does not alter the for judicial review may be filed, and channel 9 can be allotted to Bethlehem, relationship or the distribution of power shall not postpone the effectiveness of Pennsylvania, in compliance with the and responsibilities established in the such rule or action. This action may not principle community coverage Clean Air Act. This rule also is not be challenged later in proceedings to requirements of section 73.625(a) at subject to Executive Order 13045 enforce its requirements. (See section reference coordinates 40–33–52 N. and ‘‘Protection of Children from 307(b)(2).) 75–26–24 W. with a power of 3.2, Environmental Health Risks and Safety List of Subjects in 40 CFR Part 62 HAAT of 284 meters and with a DTV Risks’’ (62 FR 19885, April 23, 1997), service population of 2634 thousand. because it is not economically Environmental protection, Since the community of Bethlehem is significant. Administrative practice and procedure, located within 400 kilometers of the In reviewing sections 111(d)/129 State Air pollution control, Intergovernmental U.S.-Canadian border, concurrence from Plans, EPA’s role is to approve state relations, Reporting and recordkeeping the Canadian was obtained for this choices, provided that they meet the requirements, Waste treatment and allotment. With this action, this criteria of the Clean Air Act. In this disposal. proceeding is terminated. context, in the absence of a prior Dated: February 20, 2003. existing requirement for the State to use DATES: Effective April 14, 2003. Robert W. Varney, voluntary consensus standards (VCS), FOR FURTHER INFORMATION CONTACT: EPA has no authority to disapprove a Regional Administrator, EPA New England. Pam state plan for failure to use VCS. It 40 CFR part 62 is amended as follows: Blumenthal, Media Bureau, (202) 418– would thus be inconsistent with 1600. applicable law for EPA, when it reviews PART 62—[AMENDED] SUPPLEMENTARY INFORMATION: This is a a state plan, to use VCS in place of a 1. The authority citation for part 62 synopsis of the Commission’s report and submission that otherwise satisfies the continues to read as follows: order, MB Docket No. 02–81, adopted provisions of the Clean Air Act. Thus, February 21, 2003, and released the requirements of section 12(d) of the Authority: 42 U.S.C. 7401–7671q February 27, 2003. The full text of this National Technology Transfer and Subpart OO—Rhode Island document is available for public Advancement Act of 1995 (15 U.S.C. inspection and copying during regular 272 note) do not apply. This rule does 2. Subpart OO is amended by adding not impose an information collection business hours in the FCC Reference a new § 62.9985 and a new Information Center, Portals II, 445 12th burden under the provisions of the undesignated center heading to read as Street, SW., Room CY–A257, Paperwork Reduction Act of 1995 (44 follows: U.S.C. 3501 et seq.) Washington, DC. This document may The Congressional Review Act, 5 Emissions From Existing Municipal also be purchased from the U.S.C. 801 et seq., as added by the Small Solid Waste Landfills Commission’s duplicating contractor, Business Regulatory Enforcement Qualex International, Portals II, 445 § 62.9985 Identification of Plan-negative 12th Street, SW., CY–B402, Washington, Fairness Act of 1996, generally provides declaration. that before a rule may take effect, the DC, 20554, telephone 202–863–2893, On May 27, 1998, the Rhode Island agency promulgating the rule must facsimile 202–863–2898, or via e-mail Department of Environmental submit a rule report, which includes a [email protected]. Management submitted a letter copy of the rule, to each House of the certifying that there are no existing List of Subjects in 47 CFR Part 73 Congress and to the Comptroller General municipal solid waste landfills in the of the United States. EPA will submit a state subject to the emission guidelines Digital television broadcasting, report containing this rule and other under part 60, subpart B of this chapter. Television. required information to the U.S. Senate, the U.S. House of Representatives, and [FR Doc. 03–5307 Filed 3–5–03; 8:45 am] Part 73 of title 47 of the Code of the Comptroller General of the United BILLING CODE 6560–50–P Federal Regulations is amended as States prior to publication of the rule in follows: the Federal Register. A major rule PART 73—[AMENDED] cannot take effect until 60 days after it FEDERAL COMMUNICATIONS is published in the Federal Register. COMMISSION This action is not a ‘‘major rule’’ as 1. The authority citation for part 73 defined by 5 U.S.C. 804(2). 47 CFR Part 73 continues to read as follows: Under section 307(b)(1) of the Clean Authority: 47 U.S.C. 154, 303, 334 and 336. [DA 03–491, MB Docket No. 02–81, RM– Air Act, petitions for judicial review of 10422] this action must be filed in the United § 73.622 [Amended] States Court of Appeals for the Digital Television Broadcast Service; appropriate circuit by May 5, 2003. Bethlehem, PA 2. Section 73.622(b), the Table of Interested parties should comment in Digital Television Allotments under response to the proposed rule rather AGENCY: Federal Communications Pennsylvania, is amended by removing than petition for judicial review, unless Commission. DTV channel 59 and adding DTV the objection arises after the comment ACTION: Final rule. channel 9 at Bethlehem. period allowed for in the proposal. Federal Communications Commission. Filing a petition for reconsideration by SUMMARY: The Commission, at the the Administrator of this final rule does request of Sonshine Family Television, Barbara A. Kreisman, not affect the finality of this rule for the Inc., substitutes DTV channel 9 for DTV Chief, Video Division, Media Bureau. purposes of judicial review nor does it channel 59 at Bethlehem, Pennsylvania. [FR Doc. 03–5241 Filed 3–5–03; 8:45 am] extend the time within which a petition See 67 FR 20940, April 29, 2002. DTV BILLING CODE 6712–01–P

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FEDERAL COMMUNICATIONS SUPPLEMENTARY INFORMATION: This is a SUMMARY: The Commission, at the COMMISSION synopsis of the Commission’s Notice of request of Western Broadcasting Report and Order, MB Docket Nos. 02– Company, LLC, substitutes channel 47 47 CFR Part 73 296, 02–297, 02–298, 02–299, 02–300, for channel 62 at Presque Isle, Maine. 02–301, 02–302, adopted February 12, See 67 FR 70195, November 21, 2002. [DA 03–345; MB Docket No. 02–300, RM– 2003, and released February 18, 2003. TV channel 47 can be allotted to 10576; MB Docket No. 02–296, RM–10571; The full text of this document is Presque Isle in compliance with the MB Docket No. 02–298, RM–10574; MB available for public inspection and principle community coverage Docket No. 02–299, RM–10575; MB Docket copying during regular business hours requirements of Section 73.610 with a No. 02–297, RM–10572; MB Docket No. 02– at the FCC Reference Information zero offset. The coordinates for channel 302, RM–10579] Center, Portals II, 445 12th Street, SW., 47 at Presque Isle are 46–45–12 N. and Radio Broadcasting Services; Room CY–A257, Washington, DC, 68–10–28 W. Since the community of Colorado City, O’Brien, Panhandle, 20554. This document may also be Presque Isle is located within 400 Shamrock, Stamford, TX, and Taloga, purchased from the Commission’s kilometers of the U.S.-Canadian border, OK duplicating contractor, Qualex concurrence from the Canadian has International, Portals II, 445 12th Street, been obtained for this allotment. With AGENCY: Federal Communications SW., Room CY–B402, Washington, DC, this action, this proceeding is Commission. 20554, telephone 202–863–2893, terminated. ACTION: Final rule. facsimile 202–863–2898, or via e-mail [email protected]. DATES: Effective April 14, 2003. SUMMARY: In this document, the List of Subjects in 47 CFR Part 73 FOR FURTHER INFORMATION CONTACT: Pam Commission allots channels in six Radio, Radio broadcasting. Blumenthal, Media Bureau, (202) 418– separate docketed proceedings which 1600. were proposed together in a multiple For the reasons discussed in the docket Notice of Proposed Rule Making. preamble, the Federal Communications SUPPLEMENTARY INFORMATION: This is a See At the request of Linda Crawford, Commission proposes to amend 47 CFR synopsis of the Commission’s report and Channel 257A is allotted at Colorado part 73 as follows: order, MB Docket No. 02–348, adopted City, Texas, as the community’s third February 21, 2003, and released PART 73—RADIO BROADCAST local aural transmission service at a site February 27, 2003. The full text of this SERVICES 10.1 kilometers (6.3 miles) northwest of document is available for public the community at coordinates 32–26–23 1. The authority citation for Part 73 inspection and copying during regular NL and 100–57–29 WL. At the request continues to read as follows: business hours in the FCC Reference of Katherine Pyeatt, Channel 261A at Authority: 47 U.S.C. 154, 303, 334, and Information Center, Portals II, 445 12th O’Brien, Texas is allotted as the first 336. Street, SW., Room CY–A257, local aural transmission service at a site Washington, DC 20554. This document 3.7 kilometers (2.3 miles) north of the § 73.202 [Amended] may also be purchased from the community at coordinates 33–24–47 NL 2. Section 73.202(b), the Table of FM Commission’s duplicating contractor, and 99–51–02 WL. At the request of Allotments under Texas, is amended by Qualex International, Portals II, 445 Linda Crawford, Channel 291C3 is adding Channel 257A at Colorado City, 12th Street, SW., Room CY–B402, allotted at Panhandle, Texas, as the O’Brien, Channel 261A, Panhandle, Washington, DC 20554, telephone 202– community’s first local aural Channel 291C3, Channel 271A at 863–2893, facsimile 202–863–2898, or transmission service at a site 18.0 Shamrock, and Channel 233A at via-e-mail [email protected]. kilometers (11.2 miles) east of the Stamford. community at coordinates 35–20–38 NL 3. Section 73.202(b), the Table of FM List of Subjects in 47 CFR Part 73 and 101–10–54 WL. At the request of Allotments under Oklahoma, is Television broadcasting. Maurice Salsa, Channel 271A is allotted amended by adding Taloga, Channel at Shamrock, Texas as the second local 226A. Part 73 of title 47 of the Code of Federal Regulations is amended as aural transmission service at a site 2.4 Federal Communications Commission. kilometers (1.5 miles) west of the follows: John A. Karousos, community at coordinates 35–12–22 NL Assistant Chief, Audio Division, Media PART 73—[AMENDED] and 100–16–23 WL. At the request of Bureau. Katherine Pyeatt, Channel 295C2 is [FR Doc. 03–5338 Filed 3–5–03; 8:45 am] allotted at Stamford, Texas, as the third 1. The authority citation for part 73 local aural transmission service at a site BILLING CODE 6712–01–P continues to read as follows: 7.8 kilometers (4.9 miles) north of the Authority: 47 U.S.C. 154, 303, 334 and 336. community at coordinates 33–00–57 NL FEDERAL COMMUNICATIONS and 99–47–46 WL. At the request of COMMISSION § 73.606 [Amended] Robert Fabian, Channel 226A is allotted at Taloga, Oklahoma, as the 47 CFR Part 73 2. Section 73.606(b), the Table of community’s first local aural Television Allotments under Maine, is transmission service at a site 7.8 [DA 03–490, MB Docket No. 02–348, RM– amended by removing TV channel 62+ 10455] kilometers (4.8 miles) south of the and adding TV channel 47 at Presque Isle. community at coordinates 35–57–57 NL Television Broadcast Service; Presque and 98–59–11 WL. Isle, ME Federal Communications Commission. DATES: Effective April 4, 2003. Barbara A. Kreisman, AGENCY: Federal Communications Chief, Video Division, Media Bureau. FOR FURTHER INFORMATION CONTACT: Commission. Victoria M. McCauley, Mass Media [FR Doc. 03–5242 Filed 3–5–03; 8:45 am] ACTION: Final rule. Bureau, (202) 418–2180. BILLING CODE 6712–01–P

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Proposed Rules Federal Register Vol. 68, No. 44

Thursday, March 6, 2003

This section of the FEDERAL REGISTER ‘‘new regulations’’ to ‘‘new proposed, proposed, interim, and final regulations. contains notices to the public of the proposed interim, and final regulations.’’ Corrects Each notice will transmit: issuance of rules and regulations. The the name of the type of issuance (a) A posting notice that briefly purpose of these notices is to give interested currently used, which was changed in explains the nature of the change, and persons an opportunity to participate in the 1994 when the bulletin system was provides a place for Federal agencies to rule making prior to the adoption of the final indicate where the full text of the rules. abolished, and clarifies regulation description to indicate that it includes Federal Register notice will be available new proposed, interim, and final for review. OFFICE OF PERSONNEL regulations. (b) A copy of the notice of rulemaking MANAGEMENT Section 110.101(b): (Note old that appears in the Federal Register or paragraphs (a) and (b) have been a link to a Web site where the notice of 5 CFR Part 110 reversed, and redesignated as rulemaking appears. paragraphs (b) and (a), respectively, so RIN 3206–AJ73 § 110.102 What are Agency that they are now in a more logical responsibilities? Posting Regulations sequence). Provides the option for (a) Agencies will make regulations viewing documents either in paper available for review by employees, AGENCY: Office of Personnel format or via Web site, thus providing managers, and other interested parties. Management. the ability to use electronic as well as Federal agencies receiving the notices of ACTION: Proposed rule. paper format of documents. rulemaking described in § 110.101(b) Section 110.102(b): Adds ‘‘agency will make those regulations available for SUMMARY: The Office of Personnel Web sites’’ as a supplemental posting review upon request. Each agency will Management (OPM) is issuing proposed option. This provides the option for an complete the posting notice described in regulations to revise the rules relating to agency to make new OPM regulations § 110.101(a) indicating where and how notice of new regulations and available on the agency’s Web site or requests to review these materials information collection requirements. through a link to the OPM Web site. should be made. The revisions include eliminating one Regulatory Flexibility Act (b) Agencies will determine posting subpart and renaming the remaining locations and, if desired, develop subpart and plain language I certify that this proposed regulation supplemental announcements. Agencies modifications. will not have a significant economic will display completed posting notices impact on a substantial number of small DATES: Submit comments on or before in a prominent place where the notices entities. May 5, 2003. can be easily seen and read. Agencies ADDRESSES: Send or deliver written Executive Order 12866, Regulatory will choose the posting location that comments to: Claudio A. Benedi, Chief, Review best fits their physical layout. Agencies Publications Services Division, Office of The Office of Management and Budget may supplement these postings with Contracting and Administrative has reviewed this rule in accordance announcements in employee Services, Office of Personnel with Executive Order 12866. newsletters, agency Web sites, or other Management, Room 5H35, 1900 E St communication methods. The basic NW., Washington, DC 20415–7730, or List of Subjects in 5 CFR Part 110 requirement to post the notice Fax: (202) 606–0909. Government employees, Reporting continues, however, even if supplemental announcement methods FOR FURTHER INFORMATION CONTACT: and recordkeeping requirements. Robert T. Coco, (202) 606–1822, Fax: are used. Office of Personnel Management. (c) Agencies will post notices of the (202) 606–0909, or email Kay Coles James, new regulations even if the Federal [email protected]. Director. Register comment date has passed. The SUPPLEMENTARY INFORMATION: We are Accordingly, OPM proposes to revise public comment period on proposed revising part 110 to reflect the removal part 110 of title 5, Code of Federal regulations begins when a notice of of old subpart B—Information Regulations as follows: proposed rulemaking is published in the Collection Requirements. Old subpart B Federal Register, not with the posting of was a requirement arising from an PART 110—POSTING NOTICES OF the notice described in § 110.101(a). The internal OPM housekeeping function no NEW OPM REGULATIONS purpose of the § 110.101(a) notice is longer in effect. Its removal requires us Sec. solely to inform agency personnel of to eliminate the old subpart A 110.101 What are OPM’s Notice and Posting changes. Agencies are required to post designation and use the designation part System responsibilities? the § 110.101(a) notice even if the 110 to refer to the remaining material. 110.102 What are Agency responsibilities? formal deadline for comments shown in We have also made minor word changes Authority: 5 U.S.C. 1103. the preamble of the Federal Register and changed the order of material notice of rulemaking has passed. within the section. Except as otherwise § 110.101 What are OPM’s Notice and Agencies should make every reasonable noted, the purpose of these revisions is Posting System responsibilities? effort to minimize delays in distributing not to make substantive changes but, OPM will issue a notice that will the notice described in § 110.101 to rather, to make part 110 more readable. provide information for Federal their field offices. Section 110.101: Changes ‘‘special agencies, employees, managers, and (d) No fixed posting period. There are bulletins’’ to ‘‘notice’’ and changes other stakeholders on each of its new no minimum or maximum time limits

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on displaying the notice described in SW., Washington, DC. Normal reading effective over time. We believe that such § 110.101(a). Each office receiving a room hours are 8 a.m. to 4:30 p.m., verification is sometimes necessary and notice for posting should choose the Monday through Friday, except appropriate to ensure continued posting period which provides the best holidays. To be sure someone is there to protection from the introduction of opportunity to inform managers and help you, please call (202) 690–2817 foreign animal diseases into the United employees of regulatory changes based before coming. States. upon office layout, geographic APHIS documents published in the Therefore, we are proposing to add a dispersion of employees, and other local Federal Register, and related paragraph to § 92.2 that would require, factors. information, including the names of at the discretion of the Administrator, organizations and individuals who have that regions submit, or allow the [FR Doc. 03–5021 Filed 3–5–03; 8:45 am] commented on APHIS dockets, are collection of, information we believe is BILLING CODE 6325–44–P available on the Internet at http:// necessary to ensure that the animal www.aphis.usda.gov/ppd/rad/ health status of the region has been webrepor.html. maintained. For example, we may DEPARTMENT OF AGRICULTURE determine that a site visit is necessary FOR FURTHER INFORMATION CONTACT: Dr. to verify information provided by the Animal and Plant Health Inspection Gary Colgrove, Chief Staff Veterinarian, region, or we may require information to Service National Center for Import and Export, confirm that the import requirements of VS, APHIS, 4700 River Road Unit 38, the region have not changed. Similarly, 9 CFR Part 92 Riverdale, MD 20737–1231; (301) 734– if a region with recognized animal 4356. [Docket No. 01–036–1] health status borders a region that SUPPLEMENTARY INFORMATION: reports an outbreak of an animal health Requirements for Recognizing the Background disease, we may require information Animal Health Status of Foreign regarding security along that border. The regulations in 9 CFR part 92, Regions These listed examples are simply that— ‘‘Importation of Animals and Animal examples of information we may AGENCY: Animal and Plant Health Products: Procedures for Requesting require. Specific information collection Inspection Service, USDA. Recognition of Regions’’ (referred to activities, if determined necessary, will ACTION: Proposed rule. below as the regulations), set out the vary based on the information required process by which a foreign government SUMMARY: to adequately assess a region’s animal We are proposing to amend may request recognition of the animal health status. the regulations that set out our health status of a region or approval to procedures for recognizing the animal export animals or animal products to Executive Order 12866 and Regulatory health status of regions. Specifically, we the United States based on the risk Flexibility Act propose to require regions that have associated with animals or animal This proposed rule has been reviewed been granted status under the products from that region. As provided regulations to provide information, or under Executive Order 12866. The rule in § 92.2, each request must include has been determined to be not allow us to access information, to information about the region, including confirm the regions’ animal health significant for the purposes of Executive information on the authority, Order 12866 and, therefore, has not status when we request it. We believe organization, and infrastructure of the this action is necessary to help prevent been reviewed by the Office of veterinary services organization of the Management and Budget. the introduction of foreign animal region; the extent to which movement of health diseases into the United States. We are proposing to amend the animals and animal products is regulations that set out our procedures DATES: We will consider all comments controlled from regions of higher risk, for recognizing the animal health status that we receive on or before May 5, and the level of biosecurity for such of regions. Specifically, we propose to 2003. movements; livestock demographics and require regions that have been granted ADDRESSES: You may submit comments marketing practices in the region; status under the regulations to provide by postal mail/commercial delivery or diagnostic laboratory capabilities in the information, or allow us to access by e-mail. If you use postal mail/ region; and the region’s policies and information, to confirm and/or assess commercial delivery, please send four infrastructure for animal disease the regions’s animal health status when copies of your comment (an original and control, i.e., the region’s emergency we request to do so. We believe this three copies) to: Docket No. 01–036–1, response capacity. action is necessary to help prevent the Regulatory Analysis and Development, Recognition by the Animal and Plant introduction of foreign animal health PPD, APHIS, Station 3C71, 4700 River Health Inspection Service (APHIS) of a diseases into the United States. We do Road Unit 118, Riverdale, MD 20737– region’s animal health status makes not expect that this action will result in 1238. Please state that your comment exports of animals and animal products any economic effects, positive or refers to Docket No. 01–036–1. If you from that region subject to a certain set negative. use e-mail, address your comment to of import conditions, depending on that Under these circumstances, the [email protected]. Your region’s animal health status. These Administrator of the Animal and Plant comment must be contained in the body conditions are intended to ensure that Health Inspection Service has of your message; do not send attached animals and animal products imported determined that this action would not files. Please include your name and from the region will not introduce have a significant economic impact on address in your message and ‘‘Docket animal diseases into the United States. a substantial number of small entities. No. 01–036–1’’ on the subject line. However, once a region has been You may read any comments that we granted a particular animal health status Executive Order 12988 receive on this docket in our reading for a specified disease, the regulations This proposed rule has been reviewed room. The reading room is located in provide no mechanism for APHIS to under Executive Order 12988, Civil room 1141 of the USDA South Building, verify that the assigned import Justice Reform. If this proposed rule is 14th Street and Independence Avenue conditions remain appropriate and adopted: (1) All State and local laws and

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regulations that are inconsistent with Estimated annual number of Done in Washington, DC, this 28th day of this rule will be preempted; (2) no respondents: 3. February 2003. retroactive effect will be given to this Estimated annual number of Peter Fernandez, rule; and (3) administrative proceedings responses per respondent: 1. Acting Administrator, Animal and Plant will not be required before parties may Estimated annual number of Health Inspection Service. file suit in court challenging this rule. responses: 3. [FR Doc. 03–5280 Filed 3–5–03; 8:45 am] Estimated total annual burden on BILLING CODE 3410–34–P Paperwork Reduction Act respondents: 120 hours. (Due to In accordance with section 3507(d) of averaging, the total annual burden hours the Paperwork Reduction Act of 1995 may not equal the product of the annual (44 U.S.C. 3501 et seq.), the information number of responses multiplied by the DEPARTMENT OF HEALTH AND collection or recordkeeping reporting burden per response.) HUMAN SERVICES requirements included in this proposed Copies of this information collection rule have been submitted for approval to can be obtained from Mrs. Celeste Food and Drug Administration the Office of Management and Budget Sickles, APHIS’ Information Collection (OMB). Please send written comments Coordinator, at (301) 734–7477. 21 CFR Part 1 to the Office of Information and Government Paperwork Elimination Regulatory Affairs, OMB, Attention: Act Compliance [Docket No. 02N–0276] Desk Officer for APHIS, Washington, DC The Animal and Plant Health 20503. Please state that your comments [RIN 0910–AC40] refer to Docket No. 01–036–1. Please Inspection Service is committed to send a copy of your comments to: (1) compliance with the Government Registration of Food Facilities Under Docket No. 01–036–1, Regulatory Paperwork Elimination Act (GPEA), the Public Health Security and Analysis and Development, PPD, which requires Government agencies in Bioterrorism Preparedness and APHIS, Station 3C71, 4700 River Road general to provide the public the option Response Act of 2002; Correction Unit 118, Riverdale, MD 20737–1238, of submitting information or transacting and (2) Clearance Officer, OCIO, USDA, business electronically to the maximum AGENCY: Food and Drug Administration, room 404–W, 14th Street and extent possible. For information HHS. pertinent to GPEA compliance related to Independence Avenue SW., ACTION: Notice of proposed rulemaking; Washington, DC 20250. A comment to this proposed rule, please contact Mrs. correction. OMB is best assured of having its full Celeste Sickles, APHIS’ Information effect if OMB receives it within 30 days Collection Coordinator, at (301) 734– SUMMARY: The Food and Drug of publication of this proposed rule. 7477. Administration (FDA) is correcting a We are soliciting comments from the List of Subjects in 9 CFR part 92 notice of proposed rulemaking that public (as well as affected agencies) appeared in the Federal Register of concerning our proposed information Animal diseases, Imports, Livestock, February 3, 2003 (68 FR 5378). The collection and recordkeeping Poultry and poultry products, Region, document proposed a regulation that requirements. These comments will Reporting and recordkeeping would require domestic and foreign help us: requirements. facilities that manufacture, process, (1) Evaluate whether the proposed Accordingly, we propose to amend 9 pack, or hold food for human and information collection is necessary for CFR part 92 as follows: animal consumption in the United the proper performance of our agency’s States to register with FDA by December PART 92—IMPORTATION ANIMALS functions, including whether the 12, 2003. Due to a printing error, the AND ANIMAL PRODUCTS; information will have practical utility; document was published with PROCEDURES FOR REQUESTING inadvertent errors in the appendix. This (2) Evaluate the accuracy of our RECOGNITION OF REGIONS estimate of the burden of the proposed document corrects those errors. information collection, including the 1. The authority citation for part 92 FOR FURTHER INFORMATION CONTACT: validity of the methodology and would continue to read as follows: Joyce Strong, Office of Policy (HF–27), assumptions used; Authority: 7 U.S.C. 1622 and 8301–8317; Food and Drug Administration, 5600 (3) Enhance the quality, utility, and 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 Fishers Lane, Rockville, MD 20857, clarity of the information to be CFR 2.22, 2.80, and 371.4. 301–827–7010. collected; and 2. Section 92.2 would be amended by SUPPLEMENTARY INFORMATION: In FR Doc. (4) Minimize the burden of the redesignating paragraph (a)(1) as 03–2443, appearing on page 5378, at information collection on those who are paragraph (a) and adding a new page 5421, in the Federal Register of to respond (such as through the use of paragraph (g) to read as follows: Monday, February 3, 2003, the appropriate automated, electronic, appendix, which is a draft food facility mechanical, or other technological § 92.2 Application for recognition of the registration form, has several errors. For collection techniques or other forms of animal health status of a region. the convenience of the reader, we are information technology; e.g., permitting * * * * * republishing the appendix. electronic submission of responses). (g) If a region is granted animal health Estimate of burden: Public reporting status under the provisions of this Dated: February 21, 2003. burden for this collection of information section, that region may be required to William K. Hubbard, is estimated to average 40 hours per submit additional information Associate Commissioner for Policy and response. pertaining to animal health status or Planning. Respondents: Veterinary authorities allow APHIS to conduct additional Note: The following appendix will not in regions that have been granted a information collection activities in order appear in the Code of Federal particular animal health status for a for that region to maintain its animal Regulations. specified animal disease. health status. BILLING CODE 4160–01–C

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[FR Doc. 03–5203 Filed 3–5–03; 8:45 am] the detailed instructions for submitting Information claimed as CBI, and other BILLING CODE 4160–01–S public comments provided in paragraph information whose disclosure is B of the SUPPLEMENTARY INFORMATION restricted by statute, which is not section below. Please reference Docket included in the official public docket, ENVIRONMENTAL PROTECTION number SFUND–2003–0006 when will not be available for public viewing AGENCY submitting your comments. in EPA’s electronic public docket. EPA’s FOR FURTHER INFORMATION CONTACT: For policy is that copyrighted material will 40 CFR Chapter I general information, contact the RCRA/ not be placed in EPA’s electronic public docket but will be available only in [FRN–7459–7] CERCLA Call Center at 800–424–9346 or TDD 800–553–7672 (hearing impaired). printed, paper form in the official public Notice of Intent To Negotiate Proposed In the Washington, DC metropolitan docket. To the extent feasible, publicly Rule on All Appropriate Inquiry area, call 703–412–9810 or TDD 703– available docket materials will be made 412–3323. For more detailed available in EPA’s electronic public AGENCY: Environmental Protection information on specific aspects of docket. When a document is selected Agency (EPA). today’s notice, contact Patricia from the index list in EPA Dockets, the ACTION: Notice of Intent to Establish Overmeyer, Office of Brownfields Clean system will identify whether the FACA Committee and Negotiate a up and Redevelopment (5105T), U.S. document is available for viewing in Proposed Rule. Environmental Protection Agency, 1200 EPA’s electronic public docket. Pennsylvania Avenue, NW., Although not all docket materials may SUMMARY: The Environmental Protection Washington, DC 20460–0002, 202–566– be available electronically, you may still Agency (EPA) is giving notice that it 2774. [email protected]. access any of the publicly available intends to establish a Negotiated SUPPLEMENTARY INFORMATION: docket materials through the docket Rulemaking Committee under the facility identified above. Federal Advisory Committee Act General Information For public commenters, it is (FACA) and the Negotiated Rulemaking A. How Can I Get Copies of the important to note that EPA’s policy is Act (NRA) to negotiate proposed federal Background Materials Supporting that public comments, whether submitted electronically or in paper, standards for conducting all appropriate Today’s Notice or Other Related will be made available for public inquiry. The purpose of the Committee Information? will be to conduct discussions and viewing in EPA’s electronic public reach consensus, if possible, on 1. EPA has established an official docket as EPA receives them and proposed regulatory language setting public docket for this notice under without change, unless the comment standards and practices for conducting Docket ID No. SFUND–2003–0006. The contains copyrighted material, CBI, or all appropriate inquiry, as required by official public docket consists of the other information whose disclosure is the Small Business Liability Relief and documents specifically referenced in restricted by statute. When EPA Brownfields Revitalization Act (the this rule and other information related identifies a comment containing Brownfields Law). The Committee will to this notice. Although a part of the copyrighted material, EPA will provide consist of representatives of parties with official docket, the public docket does a reference to that material in the a definable stake in the outcome of the not include Confidential Business version of the comment that is placed in proposed standards. EPA also is Information (CBI) or other information EPA’s electronic public docket. The announcing the date of an open public whose disclosure is restricted by statute. entire printed comment, including the meeting to discuss the use of the The official public docket is the copyrighted material, will be available negotiated rulemaking process to collection of materials that is available in the public docket. develop a proposed rule. During the for public viewing at the EPA Docket Public comments submitted on public meeting, EPA officials will Center located at 1301 Constitution Ave. computer disks that are mailed or discuss the Agency’s plans for the NW., Washington, DC 20004. This delivered to the docket will be establishment of a FACA committee to Docket Facility is open from 8:30 a.m. transferred to EPA’s electronic public negotiate the proposed standards for all to 4:30 p.m., Monday through Friday, docket. Public comments that are appropriate inquiry. excluding federal holidays. To review mailed or delivered to the Docket will docket materials, it is recommended be scanned and placed in EPA’s DATES: EPA must receive comments on that the public make an appointment by electronic public docket. Where this notice by April 7, 2003. Comments calling (202) 566–0276. The public may practical, physical objects will be received after this date may not be copy a maximum of 100 pages from any photographed, and the photograph will considered. The public meeting will be regulatory docket at no charge. be placed in EPA’s electronic public held on April 15, 2003. The meeting is Additional copies cost $0.15/page. docket along with a brief description scheduled for 1 p.m. to 3 p.m. 2. Electronic Access. You may access written by the docket staff. For ADDRESSES: The public meeting will be this Federal Register document additional information about EPA’s held in Learning Forum Rooms A and electronically through the EPA Internet electronic public docket visit EPA B of the Marriott Learning Complex in under the ‘‘Federal Register’’ listings at Dockets online or see 67 FR 38102, May the Ronald Reagan Building and http://www.epa.gov/fedrgstr/. 31, 2002. International Trade Center at 1300 You may use EPA Dockets at http:// Pennsylvania Avenue NW., Washington, www.epa.gov/edocket/ to access the B. How and to Whom Do I Submit DC 20004. The Marriott Learning Center index listing of the contents of the Comments? Complex is on the concourse level of the official public docket, and to access You may submit comments Ronald Reagan Building just inside the those documents in the public docket electronically, by mail, or through hand building entrance from the Federal that are available electronically. Once in delivery/courier. To ensure proper Triangle Metro station. the system, select ‘‘search,’’ then key in receipt by EPA, identify the appropriate Comments on today’s notice may be the docket identification number. docket identification number in the submitted electronically, by mail, or Certain types of information will not subject line on the first page of your through hand delivery/courier. Follow be placed in the EPA Dockets. comment. Please ensure that your

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comments are submitted within the included as part of the comment that is up brownfields sites, clarifies CERCLA specified comment period. Comments placed in the official public docket, and liability provisions for certain received after the close of the comment made available in EPA’s electronic landowners, and provides funding to period will be marked ‘‘late.’’ EPA will public docket. enhance State and Tribal clean up not consider late comments in 3. Disk or CD ROM. You may submit programs. Subtitle B of Title II of the formulating a final decision. comments on a disk or CD ROM that Brownfields Law revises some of the 1. Electronically. If you submit an you mail to the mailing address provisions of CERCLA Section 101(35) electronic comment as prescribed identified above. These electronic clarifying the requirements necessary to below, EPA recommends that you submissions will be accepted in establish the innocent landowner include your name, mailing address, WordPerfect or ASCII file format. Avoid defense under CERCLA in addition to and an e-mail address or other contact the use of special characters and any providing Superfund liability information in the body of your form of encryption. limitations for bona fide prospective comment. Also include this contact 4. By Mail. Send two (2) copies of purchasers and contiguous property information on the outside of any disk your comments to: EPA Docket Center, owners. Among the requirements added or CD ROM you submit, and in any U.S. Environmental Protection Agency to CERCLA is the requirement that such cover letter accompanying the disk or Headquarters, Mail Code 5305T, 1200 parties undertake ‘‘all appropriate CD ROM. This ensures that you can be Pennsylvania Ave., NW., Washington, inquiry’’ into prior ownership and use identified as the party submitting the DC, 20460, Attention Docket ID No. of a property at the time at which a comment and allows EPA to contact you SFUND–2003–0006. party acquires the property. in case EPA cannot read your comment 5. By Hand Delivery or Courier. The Brownfields Law requires EPA to due to technical difficulties or needs Deliver your comments to: EPA Docket develop regulations establishing further information on the substance of Center, EPA West Building, Room B– standards and practices for how to your comment. EPA’s policy is that EPA 102, 1301 Constitution Ave., NW., conduct all appropriate inquiry and will not edit your comment, and any Washington, DC 20007. Attention promulgate the standards within two identifying or contact information Docket ID No. SFUND–2003–0006. Such years of its enactment. Congress provided in the body of a comment will deliveries are only accepted during the included in the Brownfields Law a list be included as part of the comment that Docket’s normal hours of operation as of criteria that the Agency must address is placed in the official public docket, identified above. in the regulations establishing standards and made available in EPA’s electronic and practices for conducting all public docket. If EPA cannot read your Preamble appropriate inquiry (section comment due to technical difficulties I. Statutory Authority 101(35)(2)(B)(ii)). The Brownfields Law and cannot contact you for clarification, II. Background also requires that parties receiving EPA may not be able to consider your III. Proposed Negotiating Procedures funding under the federal brownfields comment. IV. Comments Requested program to conduct site assessments Your use of EPA’s electronic public I. Statutory Authority must conduct the site assessment in docket to submit comments to EPA accordance with the standards and electronically is EPA’s preferred method This notice announcing EPA’s intent practices for all appropriate inquiry for receiving comments. Go directly to to negotiate a proposed regulation established under the same provision of EPA Dockets at http://www.epa.gov/ setting federal standards for the conduct the Brownfields Law. edocket, and follow the online of all appropriate inquiry was instructions for submitting comments. developed under the authority of A. Negotiated Rulemaking To access EPA’s electronic public sections 563 and 564 of the Negotiated EPA has decided to use the negotiated docket from the EPA Internet Home Rulemaking Act of 1996 (5 U.S.C. 561, rulemaking process to develop proposed Page, select ‘‘Information Sources,’’ Public Law 104–320). The proposed federal standards for conducting all ‘‘Dockets,’’ and ‘‘EPA Dockets.’’ Once in regulation setting standards for the appropriate inquiry. In the Brownfields the system, select ‘‘search,’’ and then conduct of all appropriate inquiry that Law, Congress mandated that EPA key in Docket ID No. SFUND–2003– EPA is proposing to develop under a develop regulations establishing 0006. The system is an ‘‘anonymous negotiated rulemaking process will be standards and practices for conducting access’’ system, which means EPA will developed under the authority of all appropriate inquiry and set forth a not know your identity, e-mail address, section 101(35)(B) of CERCLA (42 U.S.C. series of criteria for the Agency to or other contact information unless you 9601(35)(B)(ii)). follow in developing the federal provide it in the body of your comment. regulations. The most important reason 2. E-mail. Comments may be sent by II. Background for using the regulatory negotiation electronic mail (e-mail) to As required by the Federal Advisory process for developing a proposed [email protected]. Committee Act (5 U.S.C. App. 2. section federal standard is that all stakeholders Make sure this electronic copy is in an 9(a)(2)), and the Negotiated Rulemaking strongly support a consensual ASCII format that does not use special Act of 1996 (5 U.S.C. 561, Pub. L. 104– rulemaking effort. EPA believes a characters or encryption. Cite the docket 320), we are giving notice that the regulatory negotiation process will be Number SFUND–2003–0006 in your Environmental Protection Agency is less adversarial than the regulatory electronic file. In contrast to EPA’s establishing a Negotiated Rulemaking rulemaking process and that a electronic public docket, EPA’s e-mail Committee to develop proposed regulatory negotiation will result in a system is not an ‘‘anonymous access’’ standards and practices for conducting proposed rule that will effectively system. If you send an e-mail comment all appropriate inquiry. reflect Congressional intent. directly to the Docket without going On January 11, 2002, President Bush A regulatory negotiation process will through EPA’s electronic public docket, signed the Small Business Liability allow EPA to solicit direct input from EPA’s e-mail system automatically Relief and Brownfields Revitalization informed, interested, and affected captures your e-mail address. E-mail Act (‘‘the Brownfields Law’’). In general, parities when drafting the regulation, addresses that are automatically the Brownfields Law amends CERCLA rather than delay public input until the captured by EPA’s e-mail system are and provides funds to assess and clean public comment period provided after

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publishing a proposed rule; therefore, Using negotiated rulemaking to are available and are currently being ensuring that the rule is more sensitive develop the proposed rule is used to conduct all appropriate inquiry to the needs and limitations of both the fundamentally different. Negotiated in conjunction with private real estate parties and the Agency. A rule drafted rulemaking is a process in which a property transactions. In addition, site by negotiation with informed and proposed rule is developed by a assessment protocols have been affected parties is expected to be more committee composed of representatives established under the federal Superfund pragmatic and more easily of all those interests that will be program and Resource Conservation and implemented, therefore providing the significantly affected by the rule. Recovery Act (RCRA) corrective action public with the benefits of the rule Decisions are made by consensus, programs. Similarly, many State while minimizing the negative impact of which generally require concurrence response programs include site a regulation conceived or drafted among the interests represented. The assessment requirements. We intend to without the input of outside process is started by the Agency’s develop federal regulations that build knowledgeable parties. Since a careful identification of all interests upon the depth of experience accrued in negotiating committee includes potentially affected by the rulemaking both the public and private sectors in representatives from the major under consideration. To help in this implementing these standards and stakeholder groups affected by or identification process, the Agency programs. We believe that building interested in the rule, the number of publishes a notice in the Federal upon currently available private sector public comments on the proposed rule Register, such as this one, which standards for undertaking all may be reduced and those comments identifies a preliminary list of interests appropriate inquiry as well as building that are received may be more moderate. and requests public comment on that on the experience of state and federal EPA anticipates that there will be a need list. Following receipt of the comments, government site assessment programs is for few substantive changes to a the Agency establishes an advisory the most efficient and economical way proposed rule developed under a committee representing these various to develop federal regulatory standards regulatory negotiation process prior to interests to negotiate a consensus on the that will both meet the criteria set in the the publication of a final regulation. terms of a proposed rule. Representation Brownfields Law and ensure minimal on the committee may be direct, that is, B. The Concept of Negotiated disruption to the private market and each member represents a specific Rulemaking state and federal site assessment interest, or may be indirect, through programs. Usually, EPA develops a proposed coalitions of parties formed for this EPA has determined that the rulemaking using Agency staff and purpose. The Agency is a member of the regulatory negotiation process will consultant resources. The concerns of committee representing the Federal ensure that we obtain a diverse array of affected parties are made known government’s own set of interests. The input from both private sector through various informal contacts, the negotiated rulemaking advisory stakeholders and state program officials circulation of a draft proposal to known committee is facilitated by a trained who are familiar with and experienced affected parties for their informal mediator, who facilitates the negotiation in implementing processes to conduct comment, through advance notices of process. The role of this mediator, or proposed rulemaking published in the facilitator, is to apply proven consensus all appropriate inquiry. During the fall Federal Register, or formal consultation building techniques to the advisory of 2002, we initiated the convening with an advisory committee. After the committee setting. stage of the negotiated rulemaking notice of proposed rulemaking is Once a regulatory negotiation process to identify appropriate published for comment, affected parties advisory committee reaches consensus stakeholder groups and solicit advice may submit arguments and data on the provisions of a proposed rule, the and input from experienced public and defining and supporting their positions Agency, consistent with its legal private sector users of similar standards. with regard to the issues raised in the obligations, uses such consensus as the We retained an expert facilitator to proposed rule. All communications basis of its proposed rule, to be contact parties potentially affected by from affected parties are directed to the published in the Federal Register. This the all appropriate inquiry rule to Agency. In general, there is not much provides the required public notice and determine whether or not stakeholders communication among parties allows for a public comment period. are interested in participating in a representing different interests. Many Other participants and other interested negotiated rulemaking process and times, effective regulations have parties retain their rights to comment, determine the potential for stakeholder resulted from such a process. However, participate in an informal hearing (if issues to be successfully addressed as Congress noted in the Negotiated requested) and judicial review. EPA through a regulatory negotiation. Rulemaking Act, such regulatory anticipates, however, that the pre- Following an evaluation of stakeholder development procedures may proposal consensus agreed upon by this interest and input during the convening ‘‘discourage the affected parties from Committee will effectively address all process, our facilitator determined that meeting and communicating with each major issues prior to publication of a there is sufficient enthusiasm among other, and may cause parties with proposed rulemaking. stakeholders for a negotiated rulemaking different interests to assume conflicting process and almost all stakeholders that and antagonistic positions * * *’’ (Sec. C. Proposed Rule Setting Standards for we identified and interviewed 2(2)). Congress also stated that All Appropriate Inquiry expressed a belief that potential issues ‘‘adversarial rulemaking deprives the The negotiated Rulemaking Act and differences between interested affected parties and the public of the allows EPA to establish a negotiated parties could be successfully addressed benefits of face-to-face negotiations and rulemaking committee if it is and negotiated through the regulatory cooperation in developing and reaching determined that the use of the negotiation process. A description of the agreement on a rule. It also deprives negotiated rulemaking procedure is in issues raised by identified stakeholders them of the benefits of shared the public interest. We understand that and a list of interested stakeholders, as information, knowledge, expertise, and voluntary standards developed by well as the findings of our facilitator are technical abilities possessed by the standards developing organizations, contained in the final report entitled affected parties.’’ (Sec. 2(3)). such as the ASTM 1527–2000 standard, Convening Assessment Report on the

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Feasibility of a Negotiated Rulemaking to control the process. The Negotiated B. Committee Formation Process to Develop the All Appropriate Rulemaking Act defines consensus as The negotiated rulemaking Committee Inquiry Standard Required Under the the unanimous concurrence among will be formed and operated in full Small Business Liability Relief and interests represented on a negotiated compliance with the requirements of the Brownfields Revitalization Act. A copy rulemaking committee, unless the Federal Advisory Committee (FACA) in of this final report is included in the committee itself unanimously agrees to a manner consistent with the regulatory docket for today’s notice. use a different definition. In addition, requirements of the Negotiated experience has demonstrated that using D. Agency Commitment Rulemaking Act. a trained mediator to facilitate this In initiating this regulatory process will assist all potential parties, C. Interests Involved/Committee negotiation process, EPA is making a including EPA, to identify their interests Membership commitment to provide adequate in the rule and so to be able to The Agency intends to conduct the resources to ensure timely and reevaluate previously stated positions successful completion of the process. negotiated rulemaking proceedings with on issues involved in this rulemaking particular attention to ensuring full and This commitment includes making the effort. process a priority activity for all adequate representation of those representatives, components, officials, III. Proposed Negotiating Procedures interests that may be significantly affected by the proposed rule setting and personnel of the Agency who need A. Key Issues for Negotiation to be involved in the rulemaking, from standards for conducting all appropriate We anticipate the issues to be the time of initiation until such time as inquiry. Section 562 of the NRA defines addressed by the Negotiated a final rule is issued or the process is the term ‘‘interest’’ as ‘‘with respect to Rulemaking Committee on All expressly terminated. EPA will provide an issue or matter multiple parties Appropriate Inquiry may include: which have a similar point of view or administrative support for the process • Balancing the goals and priorities of and will take steps to ensure that the which are likely to be affected in a state regulatory programs, privately- similar manner.’’ Listed below are negotiated rulemaking committee has developed consensus standards, and the the dedicated resources it requires to parties which the Agency has identified Congressional mandate for a federal tentatively as being ‘‘significantly complete its work in a timely fashion. standard for conducting all appropriate These include the provision or affected’’ by the matters that may be inquiry. included in the proposed rule. procurement of such support services • Developing clear and concise as: Properly equipped space adequate EPA anticipates that the negotiating standards that address each of the committee will be composed of for public meetings and caucuses; statutory criteria (Section 101(35)(B)(iii) logistical support; word processing and approximately 25 members representing of CERCLA). parties of interest to the rulemaking. distribution of background information; • Balancing the need to put EPA will monitor membership carefully the service of a facilitator; and such abandoned properties back into to ensure that there is a balanced additional research and other technical productive reuse with concerns for representation from affected and assistance as may be necessary. public health and environmental interested stakeholder groups. EPA To the maximum extent possible protection. consistent with the legal obligations of • Balancing a need for clear and anticipates that the committee will the Agency, EPA will use the consensus comprehensive standards that will contain the following types of of the regulatory negotiation committee ensure a high level of certainty in representatives: as the basis for the rule proposed by the • Environmental Interest Groups identifying potential environmental • Agency for public notice and comment. Environment Justice Community concerns without imposing time • The Agency is committed to publishing Federal Government consuming and unnecessarily expensive • a consensus proposal that is consistent Tribal Government regulatory requirements. • with the legal mandate of the • Defining the shelf life of an State Government • Brownfields Law. assessment and the extent to which an Local Government • assessment, or the results of all Real Estate Developers E. Negotiating Consensus • appropriate inquiry, may be transferred Bankers and Lenders • As discussed above, the negotiated to subsequent property owners. Environmental Professionals rulemaking process is fundamentally • Minimizing disruptions to the We point out that one purpose of this different from the usual development current real estate market due to the notice is to determine whether federal process for developing a proposed rule. development of a federal standard that standards for conducting all appropriate Negotiation allows interested and is different from current industry inquiry will significantly affect interests affected parties to discuss possible protocols while ensuring that the federal that are not listed above, as well as approaches to various issues rather than standard is protective and in whether the list provided below only asking them to respond to details compliance with statutory criteria. identifies accurately and on an Agency proposal. The negotiation • Identifying the extent to which comprehensively a group of process involves a mutual education of sampling and analysis of potentially stakeholders representing the interests the parties by each other on the contaminated property may be required listed above. We invite comment and practical concerns about the impact of to document the presence, or the lack of, suggestions on the list of ‘‘significantly such approaches. Each committee environmental contamination. affected’’ interests, as well as the list of member participates in resolving the • Identifying what information is suggested stakeholders, or committee interests and concerns of other necessary on the potential members. members, rather than leaving it up to contamination of adjacent and adjoining EPA recognizes that the regulatory EPA to bridge different points of view. properties, as well as underlying actions we take under this program may A key principle of negotiated groundwater resources. at times affect various segments of rulemaking is that agreement is by • Establishing a list of contaminants society in different ways, and that this consensus of all the interests. Thus, no to include in the investigation when may in some cases produce unique one interest or group of interests is able conducting all appropriate inquiry. ‘‘interests’’ in a proposed rule based on

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income, gender, or other factors. negotiations. The procedure for participants who have expertise or Particular attention will be given by the requesting such representation is set out particular interest in the technical Agency to ensure that any unique under Section I ‘‘General Information’’ matter(s) being studied. interests that have been identified in part of this document. In addition, Because it recognizes the importance this regard, and that may be comments and suggestions on this of this staffing work for the Committee, significantly affected by the proposed tentative list are invited. EPA will provide appropriate technical rule, are fully represented. The negotiating group should not expertise for such workgroups. EPA EPA tentatively identified the exceed 25 members. The Agency requests comment regarding particular following list of possible interests and believes that more than 25 members appointments to membership on the parties as representing the above list of would make it difficult to conduct regulatory negotiation committee. interested stakeholder groups. The effective negotiations. EPA is aware that Members can be individuals or following list includes those there are many more potential organizations. If the effort is to be organizations tentatively identified by participants, whether they are listed fruitful, participants should be able to EPA as being either a potential member here or not, than there are membership fully and adequately represent the of the Committee, or a potential member slots on the Committee. The Agency viewpoints of their respective interests. of a coalition that would in turn does not believe, nor does the NRA Those who wish to be appointed as nominate a candidate to represent one contemplate, that each potentially members of the committee should of the significantly affected interests affected group must participate directly submit a request to EPA, in accordance listed above: in the negotiations; nevertheless, each with the public participation procedures • U.S. Environmental Protection affected interest can be adequately outlined in Section I ‘‘General Agency represented. To have a successful Information’’ of this notice. • Sierra Club negotiation, it is important for interested The list of potential committee • Environmental Defense parties to identify and form coalitions members provided above includes those • Center for Public Environmental that adequately represent significantly who have been tentatively identified by Oversight affected interests. These coalitions, to EPA as being either a potential member • Partnership for Sustainable provide adequate representation, must of the Committee, or a potential member Brownfields Redevelopment agree to support, both financially and of a coalition that would in turn • Association of State and Territorial technically, a member to the Committee nominate a candidate to represent one Solid Waste Management Officials whom they will choose to represent of the significantly affected interests, • National Association of Attorneys their ‘‘interest.’’ also listed above. It is very important to recognize that General D. Good Faith Negotiation • Gila Tribe, Department of interested parties who are not selected Environmental Quality to membership on the Committee can Committee members should be • U.S. Conference of Mayors make valuable contributions to this willing to negotiate in good faith and • National Association of Local negotiated rulemaking effort in any of have the authority, from his or her Government Environmental several ways: constituency, to do so. The first step is Professionals • The person could request to be to ensure that each member has good • National Association of Home placed on the Committee mailing list, communications with his or her Builders submitting written comments, as constituencies. An intra-interest • The Real Estate Roundtable appropriate; network of communication should be • National Association of Industrial • The person could attend the established to bring information from and Office Parks Committee meetings, which are open to the support organization to the member • Trust for Public Land the public, caucus with his or her at the table, and to take information • National Brownfields Association interest’s member on the Committee, or from the table back to the support • Bank of America even address the Committee (usually organization. Second, each organization • Freddie Mac allowed at the end of an issue’s or coalition should, therefore, designate • Mortgage Bankers Association discussion or the end of the session, as as its representative an official with • Wasatch Environmental time permits); or credibility and authority to insure that • National Groundwater Association • The person could assist in the work needed information is provided and • Associated Soil and Foundation of a workgroup that might be decisions are made in a timely fashion. Engineers established by the Committee. Negotiated rulemaking efforts can The list of potential parties shown Informal workgroups are usually require a very significant contribution of above is not presented as a complete or established by an advisory committee to time by the appointed members that exclusive list from which committee assist the Committee in ‘‘staffing’’ must be sustained for up to a year. Other members will be selected, nor does various technical matters (e.g., qualities that can be very helpful are inclusion on the list of potential parties researching or preparing summaries of negotiating experience and skills, and mean that a party on the list has agreed the technical literature or comments on sufficient technical knowledge to to participate as a member of the particular matters such as economic participate in substantive negotiations. committee or as a member of a coalition. issues) before the Committee so as to Certain concepts are central to The list merely indicates parties that facilitate Committee deliberations. They negotiating in good faith. One is the EPA has tentatively identified as also might assist in estimating costs and willingness to bring all issues to the representing significantly affected drafting regulatory text on issues bargaining table in an attempt to reach interests in the outcome of the proposed associated with the analysis of the a consensus, instead of keeping key rule establishing federal standards for affordability and benefits addressed, issues in reserve. The second is a the conduct of all appropriate inquiry. and formulating drafts of the various willingness to keep the issues at the This document gives notice of this provisions and their justification table and not take them to other forums. process to other potential participants previously developed by the committee. Finally, good faith includes a and affords them the opportunity to Given their staffing function, willingness to move away from the type request representation in the workgroups usually consist of of positions usually taken in a more

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traditional rulemaking process, and develop draft language for this rule and Boston, Massachusetts 02203, (617) instead explore openly with other the extent to which the issues, parties 918–1659, or by e-mail at parties all ideas that may emerge from and procedures described above are [email protected]. While the public the discussions of the committee. adequate and appropriate. may forward questions to EPA via e- mail, it must submit comments on this E. Facilitator Dated: February 27, 2003. Thomas P. Dunne, proposed rule according to the The facilitator will not be involved procedures outlined above. Associate Assistant Administrator, EPA with the substantive development of the SUPPLEMENTARY INFORMATION: Under standard. Rather, the facilitator’s role Office of Solid Waste and Emergency Response. section 111(d) of the Clean Air Act, EPA generally includes: published regulations at 40 CFR part 60, • Facilitating the meetings of the [FR Doc. 03–5324 Filed 3–5–03; 8:45 am] BILLING CODE 6560–50–P subpart B which require states to submit committee in an impartial manner; and control plans to control emissions of • Impartially assisting the members of designated pollutants from designated the Committee in conducting facilities. In the event that a state does discussions and negotiations; ENVIRONMENTAL PROTECTION AGENCY not have a particular designated facility F. EPA Representative located within its boundaries, EPA 40 CFR Part 62 The EPA representative will be a full requires that a state submit a negative and active participant in the consensus [NH–055b; FRL–7458–4] declaration in lieu of a control plan. building negotiations. The Agency’s The New Hampshire DES submitted representative will meet regularly with Approval and Promulgation of State the negative declaration to satisfy the various senior Agency officials, briefing Plans for Designated Facilities and requirements of 40 CFR part 60, subpart them on the negotiations and receiving Pollutants: New Hampshire; Negative B. In the Final Rules section of this their suggestions and advice, to Declaration Federal Register, EPA is approving the effectively represent the Agency’s views New Hampshire negative declaration as AGENCY: Environmental Protection a direct final rule without a prior regarding the issues before the Agency (EPA). Committee. EPA’s representative also proposal. EPA is doing this because the ACTION: Proposed rule. will ensure that the entire spectrum of Agency views this action as a noncontroversial submittal and federal governmental interests affected SUMMARY: EPA proposes to approve the anticipates that it will not receive any by the all appropriate inquiry sections 111(d) negative declaration rulemaking, including the Office of significant, material, and adverse submitted by the New Hampshire comments. A detailed rationale for the Management and Budget, the Department of Environmental Services Department of Justice, and other approval is set forth in the direct final (DES) on July 22, 1998. This negative rule. If EPA does not receive any Departments and agencies, are kept declaration adequately certifies that informed of the negotiations and significant, material, and adverse there are no existing municipal solid comments to this action, then the encouraged to make their concerns waste (MSW) landfills located in the known in a timely fashion. approval will become final without state of New Hampshire that have further proceedings. If EPA receives G. Committee Notice and Schedule accepted waste since November 8, 1987 adverse comments, we will withdraw and that must install collection and the direct final rule and EPA will EPA will have an open public meeting control systems according to EPA’s of all parties to discuss the possibility address all public comments received in emissions guidelines for existing MSW a subsequent final rule based on this of using negotiated rulemaking on April landfills. 15, 2003. The Public Meeting will be proposed rule. EPA will not begin a DATES: EPA must receive comments in held in Learning Forum Rooms A and second comment period. writing by April 7, 2003. B of the Marriott Learning Complex in Dated: February 20, 2003. ADDRESSES: You should address your the Ronald Reagan Building at 1300 Robert W. Varney, Pennsylvania Avenue NW., Washington, written comments to: Mr. Steven Rapp, Chief, Air Permits, Toxics & Indoor Regional Administrator, EPA New England. DC 20004. The meeting is scheduled for [FR Doc. 03–5305 Filed 3–5–03; 8:45 am] 1 p.m. to 3 p.m. If EPA proceeds with Programs Unit, Office of Ecosystem BILLING CODE 6560–50–P a negotiated rulemaking committee on Protection, U.S. EPA, One Congress all appropriate inquiry, EPA plans for Street, Suite 1100 (CAP), Boston, the Committee to begin deliberations in Massachusetts 02114–2023. Copies of documents relating to this ENVIRONMENTAL PROTECTION May, 2003 and conclude negotiations in AGENCY December, 2003. proposed rule are available for public After evaluating the comments on this inspection during normal business 40 CFR Part 62 announcement and the requests for hours at the following location: representation, EPA will issue a notice Environmental Protection Agency, Air [Region 2 Docket No. NJ57–251b; FRL– 7459–5] that will announce the establishment of Permits, Toxics & Indoor Program Unit, Office of Ecosystem Protection, One the committee and its membership, Approval and Promulgation of Plans unless after reviewing the comments, it Congress Street, Suite 1100, Boston, Massachusetts 02114–2023. The for Designated Facilities; New Jersey; is determined that such an action is Delegation of Authority inappropriate. The negotiation process interested persons wanting to examine will begin once the committee these documents should make an AGENCY: Environmental Protection membership roster is published in the appointment with the appropriate office Agency (EPA). at least 24 hours before the day of the Federal Register. ACTION: Proposed rule. visit. IV. Comments Requested FOR FURTHER INFORMATION CONTACT: John SUMMARY: The EPA is proposing EPA requests comments on whether it Courcier, Office of Ecosystem Protection approval of the New Jersey Department should use negotiated rulemaking to (CAP), EPA-New England, Region 1, of Environmental Protection’s request

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for delegation of authority to enforce ENVIRONMENTAL PROTECTION facilities. In the event that a state does and implement the Federal Plan (40 AGENCY not have a particular designated facility CFR part 60, subpart Cb) for Large located within its boundaries, EPA Municipal Waste Combustors (MWC). In 40 CFR Part 62 requires that the state submit a negative the ‘‘Rules and Regulations’’ section of [RI–1047b; FRL–7458–6] declaration in lieu of a control plan. this Federal Register, EPA is The Rhode Island DEM submitted the announcing its approval of the State’s Approval and Promulgation of State negative declaration to satisfy the request as a direct final rule without Plans for Designated Facilities and requirements of 40 CFR part 60, subpart prior proposal because the EPA views Pollutants: Rhode Island; Negative B. In the Final Rules Section of this this as a noncontroversial action and Declaration Federal Register, EPA is approving the Rhode Island negative declaration as a anticipates no adverse comments. A AGENCY: Environmental Protection detailed rationale for the approval is set direct final rule without a prior Agency (EPA). proposal. EPA is doing this because the forth in the direct final rule. If EPA ACTION: Proposed rule. Agency views this action as a receives no adverse comments, EPA will noncontroversial submittal and SUMMARY: not take further action on this proposed EPA proposes to approve the anticipates that it will not receive any rule. If EPA receives adverse comments, sections 111(d) negative declaration significant, material, and adverse EPA will withdraw the direct final rule submitted by the Rhode Island comments. A detailed rationale for the and it will not take effect. EPA will Department of Environmental approval is set forth in the direct final address all public comments in a Management (DEM) on May 27, 1998. rule. If EPA does not receive any subsequent final rule based on this This negative declaration adequately significant, material, and adverse proposed rule. The EPA will not certifies that there are no existing comments to this action, then the institute a second comment period on municipal solid waste (MSW) landfills approval will become final without this action. Any parties interested in located in the state of Rhode Island that further proceedings. If EPA receives commenting on this action should do so have accepted waste since November 8, adverse comments, we will withdraw at this time. 1987 and that must install collection the direct final rule and EPA will and control systems according to EPA’s address all public comments received in DATES: Written comments must be emissions guidelines for existing MSW a subsequent final rule based on this received on or before April 7, 2003. landfills. proposed rule. EPA will not begin a ADDRESSES: All comments should be DATES: EPA must receive comments in second comment period. writing by April 7, 2003. addressed to: Raymond Werner, Chief, Dated: February 20, 2003. ADDRESSES: You should address your Air Programs Branch, Environmental Robert W. Varney, Protection Agency, Region 2 Office, 290 written comments to: Mr. Steven Rapp, Chief, Air Permits, Toxics & Indoor Regional Administrator, EPA New England. Broadway, New York, New York 10007– [FR Doc. 03–5308 Filed 3–5–03; 8:45 am] 1866. Programs Unit, Office of Ecosystem Protection, U.S. EPA, One Congress BILLING CODE 6560–50–P Copies of the State submittal are Street, Suite 1100 (CAP), Boston, available at the following addresses for Massachusetts 02114–2023. inspection during normal business Copies of documents relating to this FEDERAL COMMUNICATIONS hours: Environmental Protection proposed rule are available for public COMMISSION Agency, Region 2 Office, Air Programs inspection during normal business Branch, 290 Broadway, 25th Floor, New hours at the following location: 47 CFR Part 73 York, New York 10007–1866. Environmental Protection Agency, Air New Jersey Department of Permits, Toxics & Indoor Program Unit, [DA 03–427; MB Docket No. 03–41; RM– Environmental Protection, Bureau of Air Office of Ecosystem Protection, One 10642] Congress Street, Suite 1100, Boston, Pollution Control, 401 East State Street, Radio Broadcasting Services; Lincoln Trenton, New Jersey 08625. Massachusetts 02114–2023. The interested persons wanting to examine City and Monmouth, OR FOR FURTHER INFORMATION CONTACT: Kirk these documents should make an AGENCY: Federal Communications J. Wieber, Air Programs Branch, appointment with the appropriate office Commission. Environmental Protection Agency, 290 at least 24 hours before the day of the ACTION: Broadway, 25th Floor, New York, New visit. Proposed rule. York 10278, (212) 637–3381. FOR FURTHER INFORMATION CONTACT: John SUMMARY: This document requests Courcier, Office of Ecosystem Protection SUPPLEMENTARY INFORMATION: For comments on a petition for rule making (CAP), EPA—New England, Region 1, additional information see the direct filed by Radio Beam, LLC, licensee of Boston, Massachusetts 02203, (617) final rule which is located in the Rules Station KSND, Channel 236C2, Lincoln 918–1659, or by e-mail at Section of this Federal Register. City, Oregon, proposing the substitution [email protected]. While the public of Channel 236C3 for Channel 236C2 at Dated: February 21, 2003. may forward questions to EPA via e- Lincoln City and reallotment of Channel Jane M. Kenny, mail, it must submit comments on this 236C3 to Monmouth, Oregon. The Regional Administrator, Region 2. proposed rule according to the coordinates for Channel 236C3 at [FR Doc. 03–5320 Filed 3–5–03; 8:45 am] procedures outlined above. Monmouth, Oregon, are 44–50–43 and SUPPLEMENTARY INFORMATION: BILLING CODE 6560–50–P Under 123–30–07. The proposal complies with section 111(d) of the Clean Air Act, EPA the provisions of Section 1.420(i) of the published regulations at 40 CFR part 60, Commission’s Rules, and therefore, the subpart B which require states to submit Commission will not accept competing control plans to control emissions of expressions of interest in the use of designated pollutants from designated Channel 236C3 at Monmouth, Oregon.

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DATES: Comments must be filed on or by adding Monmouth, Channel 236C3, Information Center (Room CY–A257), before April 11, 2003, and reply and by removing Channel 236C2 at 445 12th Street, S.W., Washington, D.C. comments on or before April 28, 2003. Lincoln City. The complete text of this decision may ADDRESSES: Secretary, Federal Federal Communications Commission. also be purchased from the Commission’s copy contractor, Qualex Communications Commission, 445 12th John A. Karousos, Street, SW., Room TW–A325, International, Portals II, 445 12th Street, Assistant Chief, Audio Division, Media S.W., Room CY–B402, Washington, D.C. Washington, DC 20554. In addition to Bureau. 20554, telephone (202) 863–2893. filing comments with the FCC, [FR Doc. 03–5334 Filed 3–5–03; 8:45 am] interested parties should serve the The Commission further requests BILLING CODE 6712–01–P petitioner’s counsel, as follows: John E. comment on a petition filed by Gray Fiorini III, Evan Henschel, Wiley Rein & Media Corporation proposing the allotment of Channel 258A at Rattan, Fielding LLP, 1776 K Street, NW., FEDERAL COMMUNICATIONS Washington, DC 20006. Oklahoma, as the community’s first COMMISSION local service. Channel 258A can be FOR FURTHER INFORMATION CONTACT: allotted to Rattan in compliance with Kathleen Scheuerle, Media Bureau, 47 CFR Part 73 the Commission’s minimum distance (202) 418–2180. [DA 03–428; MB Docket No. 03–42, RM– separation requirements with a site SUPPLEMENTARY INFORMATION: This is a 10648; MB Docket No. 03–43, RM–10649; restriction of 7.6 km (4.7 miles) south of synopsis of the Commission’s Notice of Docket No. 03–44, RM–10650] Rattan. The coordinates for Channel Proposed Rule Making, MB Docket No. 258A at Rattan are 34–07–58 North Radio Broadcasting Services; Daisy, 03–41, adopted February 12, 2003, and Latitude and 95–23–57 West Longitude. released February 18, 2003. The full text AR, Rattan, OK, and Water Mill, NY The Commission further requests of this Commission decision is available AGENCY: Federal Communications comment on a petition filed by Isabel for inspection and copying during Commission. Sepulveda, Inc. proposing the allotment regular business hours in the FCC’s ACTION: Proposed rule. of Channel 277A at Water Mill, New Reference Information Center at Portals York, as the community’s first local II, 445 12th Street, SW., CY–A257, SUMMARY: This document proposes three service. Channel 277A can be allotted to Washington, DC, 20554. This document allotments in Daisy, Arkansas, Rattan, Water Mill in compliance with the may also be purchased from the Oklahoma, and Water Mill, New York. Commission’s minimum distance Commission’s duplicating contractors, The Commission requests comment on separation requirements without site Qualex International, Portals II, 445 a petition filed by Gray Media restriction at center city reference 12th Street, SW., Room CY–B402, Corporation proposing the allotment of coordinates. The coordinates for Washington, DC, 20554, telephone 202– Channel 293C3 at Daisy, Arkansas, as Channel 277A at Water Mill are 40–54– 863–2893, facsimile 202–863–2898, or the community’s first local service. 21 North Latitude and 72–21–45 West via e-mail [email protected]. Channel 293C3 can be allotted to Daisy Longitude. The provisions of the Regulatory in compliance with the Commission’s The Provisions of the Regulatory Flexibility Act of 1980 do not apply to minimum distance separation Flexibility Act of 1980 do not apply to this proceeding. requirements with a site restriction of this proceeding. Members of the public Members of the public should note 21.1 km (13.1 miles) northwest of Daisy. should note that from the time a Notice that from the time a Notice of Proposed The coordinates for Channel 293C3 at of Proposed Rule Making is issued until Rule Making is issued until the matter Daisy are 34–21–49 North Latitude and the matter is no longer subject to is no longer subject to Commission 93–54–48 West Longitude. See Commission consideration or court consideration or court review, all ex SUPPLEMENTARY INFORMATION infra. review, all ex parte contacts are parte contacts are prohibited in DATES: Comments must be filed on or prohibited in Commission proceedings, Commission proceedings, such as this such as this one, which involve channel one, which involve channel allotments. before April 11, 2003, and reply comments on or before April 28, 2003. allotments. See 47 CFR 1.1204(b) for See 47 CFR 1.1204(b) for rules rules governing permissible ex parte ADDRESSES: governing permissible ex parte contacts. Federal Communications contacts. For information regarding proper Commission, Washington, DC 20554. In For information regarding proper filing procedures for comments, See 47 addition to filing comments with the filing procedures for comments, see 47 CFR 1.415 and 1.420. FCC, interested parties should serve the CFR 1.415 and 1.420. petitioner as follows: Scott A. Gray, List of Subjects in 47 CFR Part 73 President, Gray Media Corporation, Post List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. Office Box 491, Bryant, Arkansas 72089; Radio, Radio broadcasting. For the reasons discussed in the and Isabel Sepulveda, President, Isabel For the reasons discussed in the preamble, the Federal Communications Sepulveda, Inc., 9 Lake Side Drive, preamble, the Federal Communications Commission proposes to amend 47 CFR Southampton, New York 11968. Commission proposes to amend 47 CFR part 73 as follows: FOR FURTHER INFORMATION CONTACT: Part 73 as follows: Deborah A. Dupont, Media Bureau (202) PART 73—RADIO BROADCAST 418–7072. PART 73—RADIO BROADCAST SERVICES SERVICES SUPPLEMENTARY INFORMATION: This is a 1. The authority citation for Part 73 synopsis of the Commission’s Notice of 1. The authority citation for Part 73 continues to read as follows: Proposed Rule Making, MB Docket Nos. continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, and 03–42, 03–43, and 03–44; adopted Authority: 47 U.S.C. 154, 303, 334 and 336. 336. February 12, 2003 and released February 18, 2003. The full text of this § 73.202 [Amended] § 73.202 [Amended] Commission decision is available for 2. Section 73.202(b), the Table of FM 2. Section 73.202(b), the Table of FM inspection and copying during normal Allotments under Arkansas, is amended Allotments under Oregon, is amended business hours in the FCC Reference by adding Daisy, Channel 293C3.

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3. Section 73.202(b), the Table of FM business hours in the FCC’s Reference SUPPLEMENTARY INFORMATION: This is a Allotments under Oklahoma, is Information Center (Room CY–A257), synopsis of the Commission’s notice of amended by adding Rattan, Channel 445 Twelfth Street, SW., Washington, proposed rule making, MB Docket No. 258A. DC. The complete text of this decision 03–48, adopted February 21, 2003, and 3. Section 73.202(b), the Table of FM may also be purchased from the released February 27, 2003. The full text Allotments under New York, is Commission’s copy contractor, Qualtex of this document is available for public amended by adding Water Mill, Channel International, Portals II, 445 12th Street, inspection and copying during regular 277A. SW., Room CY–B402, Washington, DC business hours in the FCC Reference Federal Communications Commission. 20554, telephone (202) 863–2893. Information Center, Portals II, 445 12th John A. Karousos, Federal Communications Commission. Street, SW., Room CY–A257, Assistant Chief, Audio Division, Media John A. Karousos, Washington, DC, 20554. This document may also be purchased from the Bureau. Assistant Chief, Audio Division, Media [FR Doc. 03–5335 Filed 3–5–03; 8:45 am] Bureau. Commission’s duplicating contractor, Qualex International, Portals II, 445 BILLING CODE 6712–01–P [FR Doc. 03–5336 Filed 3–5–03; 8:45 am] 12th Street, SW., Room CY—B402, BILLING CODE 6712–01–P Washington, DC, 20554, telephone 202– FEDERAL COMMUNICATIONS 863–2893, facsimile 202–863–2898, or COMMISSION FEDERAL COMMUNICATIONS via-e-mail [email protected]. COMMISSION Provisions of the Regulatory 47 CFR Part 73 Flexibility Act of 1980 do not apply to [DA 03–430; MM Docket No. 01–257; RM– 47 CFR Part 73 this proceeding. 10267] [DA 03–489, MB Docket No. 03–48, RM– Members of the public should note 10559] Radio Broadcasting Services; Bad that from the time a notice of proposed rule making is issued until the matter is Axe, MI Television Broadcast Service; Brawley, no longer subject to Commission CA AGENCY: Federal Communications consideration or court review, all ex Commission. AGENCY: Federal Communications parte contacts are prohibited in ACTION: Proposed rule; dismissal. Commission. Commission proceedings, such as this ACTION: Proposed rule. one, which involve channel allotments. SUMMARY: Charles Crawford See 47 CFR 1.1204(b) for rules (‘‘Crawford’’) filed a petition for rule SUMMARY: The Commission requests governing permissible ex parte contacts. making requesting the allotment of FM comments on a petition filed by the For information regarding proper Channel 231A to Bad Axe, Michigan, as Board of Trustees for the California that community’s second local FM filing procedures for comments, see 47 State University for San Diego State CFR 1.415 and 1.420. service. See 66 FR 52733, October 17, University, proposing the substitution of 2001. Subsequently, Crawford withdrew channel *43 for channel *26. TV List of Subjects in 47 CFR Part 73 his interest in this proceeding. A Channel *43 can be allotted to Brawley showing of continuing interest is with a minus offset at reference Television broadcasting. required before a channel will be coordinates 33–05–00 N. and 115–32–00 For the reasons discussed in the allotted to a community. Further, W. Since the community of Brawley is preamble, the Federal Communications Commission policy refrains from located within 275 kilometers of the Commission proposes to amend 47 CFR making an allotment in the absence of U.S.-Mexican border, concurrence from part 73 as follows: an expression of interest. Therefore, the Mexican government must be since no other expressions of interest in obtained for this allotment. PART 73—RADIO BROADCAST applying for the allotment proposal at DATES: Comments must be filed on or SERVICES Bad Axe, Michigan, were received, we before April 21, 2003, and reply dismiss Crawford’s proposal, as comments on or before May 6, 2003. 1. The authority citation for part 73 requested. ADDRESSES: Federal Communications continues to read as follows: ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Authority: 47 U.S.C. 154, 303, 334 and 336. Commission, 445 12th Street, SW., Room TW–A325, Washington, DC Washington, DC 20554. 20554. In addition to filing comments § 73.606 [Amended] FOR FURTHER INFORMATION CONTACT: with the FCC, interested parties should 2. Section 73.606(b), the Table of Nancy Joyner, Media Bureau, (202) 418– serve the petitioner, or its counsel or Television Allotments under California, 2180. consultant, as follows: Margaret L. is amended by removing Channel *26 SUPPLEMENTARY INFORMATION: This is a Miller, Low, Lohnes & Albertson, PLLC, and adding Channel *43 at Brawley. synopsis of the Commission’s Report 1200 New Hampshire Avenue, NW., Federal Communications Commission. and Order, MM Docket No. 01–257, Suite 800, Washington, DC 20036–6802 adopted February 12, 2003, and released (Counsel for petitioner). Barbara A. Kreisman, February 18, 2003. The full text of this FOR FURTHER INFORMATION CONTACT: Pam Chief, Video Division, Media Bureau. Commission decision is available for Blumenthal, Media Bureau, (202) 418– [FR Doc. 03–5243 Filed 3–5–03; 8:45 am] inspection and copying during normal 1600. BILLING CODE 6712–01–P

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Notices Federal Register Vol. 68, No. 44

Thursday, March 6, 2003

This section of the FEDERAL REGISTER obliteration and closure to reduce needs would be salvaged and generally contains documents other than rules or sediment delivery to stream channels; include trees greater than 12 inches proposed rules that are applicable to the planting bitterbrush to increase wildlife diameter. Dead and severely damaged public. Notices of hearings and investigations, forage; tree planting in areas outside of trees smaller than 12 inches diameter committee meetings, agency decisions and salvage units; replacement or repair of unsuited for commercial timber are rulings, delegations of authority, filing of petitions and applications and agency wildlife guzzlers damaged in the fire to proposed for utilization as posts, rails, statements of organization and functions are provide water sources for wildlife; in- house logs, chips or firewood on about examples of documents appearing in this stream additions of large wood or rock 622 acres. The proposed action includes section. placement to improve fish habitat; re- construction of short temporary roads, vegetation of burned riparian area; and totaling less than 2 miles, to provide hazard tree removal from Perry South access. Timber harvest residues would DEPARTMENT OF AGRICULTURE Campground. The agency will give be treated by a variety of methods notice of the full environmental analysis including lopping and scattering, Forest Service and decision making process so burning in place, piling and burning, or interested and affected people may be yarding tops to landings to be burned. Eyerly Fire Salvage, Deschutes able to participate and contribute in the To reduce value loss due to wood National Forest, Jefferson County, OR final decision. deterioration the timber would be AGENCY: Forest Service, USDA. DATES: Comments concerning the scope offered for sale in the Fall 2003. ACTION: Notice of intent to prepare an of the analysis must be received by Areas treated would be located environmental impact statement. March 31, 2003. outside of Riparian Reserves and ADDRESSES: Send written comments to Riparian Habitat Conservation Areas SUMMARY: The USDA, Forest Service, Bill Anthony, District Ranger, Sisters (RHCA). Riparian Reserve and RHCA will prepare an environmental impact Ranger District, P.O. Box 249, Sisters, widths vary by stream class. Dead trees statement (EIS) on a proposed action to Oregon 97759. (snags) and down wood would be left at salvage dead and severely damaged FOR FURTHER INFORMATION CONTACT: levels consistent with Forest Plan trees, utilize small diameter forest Dave Owens, Project Leader, Ochoco standards. No salvage or small diameter products resulting and to plant trees to National Forest, P.O. Box 490, utilization is proposed within the assist in the restoration of the area Prineville, Oregon 97754, phone 541– roadless area within the project area. burned in the Eyerly fire on the Sisters 416–6425. E-mail [email protected]. Purpose and Need for Action. The Ranger District of the Deschutes SUPPLEMENTARY INFORMATION: Proposed purpose of the salvage and tree planting National Forest. The purpose of the Action. The proposed action is for is to recover the economic and social proposed action is to make burned salvage of commercial timber on value of merchantable timber from trees commercial timber and small diameter approximately 4,388 acres and that were killed or severely damaged by trees available to the economy and utilization of small diameter forest the Eyerly Fire, and to facilitate community, and to facilitate products such as posts, rails, house logs, development of a long term sustainable development of a long term sustainable chips, or firewood on approximately forest through reforestation. forest through reforestation. The Eyerly 622 acres on the Sisters Ranger District. Scoping Process. Public participation Fire, located about 20 miles north of Reforestation of the same areas is also will be sought at several points during Sisters, Oregon, burned about 25,573 proposed. The intensity of the Eyerly the analysis, including listing of this acres. Approximately 76 percent (17,871 Fire varied and resulted in some areas project in the Winter 2002 and acres) of the fire area is on the of no damage while other areas subsequent issues of the Ochoco and Deschutes National Forest. The experienced complete stand mortality. Deschutes National Forest’s Schedule of alternatives will include the proposed The volume of burned timber ranges Proposed Activities; letters to agencies, action, no action, and any additional from 1 to 15 thousand board feet per organizations, tribes, and individuals alternatives that respond to issues acre. Estimated total volume of fire- who have previously indicated their generated during the scoping process. killed and severely damaged timber is in interest in such activities. Scoping is an The proposed action will require a non- excess of 100 million board feet. The integral part of environmental analysis. significant amendment to the Deschutes proposed salvage harvest would yield Scoping includes refining the proposed National Forest Land and Resource approximately 23 million board feet. action, determining the responsible Management Plan (Forest Plan) to The purpose of the salvage is to official and lead and cooperating substitute other old growth stands for recover the economic value of agencies, identifying preliminary issues, two old growth areas that were burned. merchantable timber from trees that and identifying interested and affected The proposed salvage and reforestation were killed or severely damaged by the persons. The results of scoping are used activities are among several actions Eyerly Fire. The design of salvage to identify public involvement methods, being considered to facilitate recovery operations will consider the current refine issues, select an interdisciplinary and restoration of the area burned in the condition, sensitivity and long term team, establish analysis criteria, and Eyerly Fire. Additional projects restoration of the landscape. Salvage explore possible alternatives and their intended to aid in restoration of damage logging would be conducted by a probable environmental effects. caused by the Eyerly Fire are planned, combination of ground-based tractor, Preliminary Issues. Preliminary issues and will be analyzed under separate skyline and helicopter yarding. Dead identified include: Snag and downed environmental analysis efforts. Such and severely damaged trees in excess of wood habitat; big game habitat; restoration projects include: Road wildlife habitat and soil protection disturbance of cultural resources;

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potential for noxious weed invasion and reviewer’s position and contentions. DEPARTMENT OF AGRICULTURE expansion; effects of proposed activities Vermont Yankee Nuclear Power Corp. v. on soil productivity and erosion; effects NRDC, 435 U.S. 519, 553 (1978). Also, Forest Service of proposed activities on water quality environmental objections that could be Public Meeting of the Black Hills and fish habitat including Bull Trout raised at the draft EIS stage but that are National Forest Advisory Board populations; effects of the proposed not raised until after completion of the activities on late successional reserves final EIS may be waived or dismissed by AGENCY: Forest Service, USDA. and old growth habitat; potential loss of the courts. City of Angoon v. Hodel, 803 ACTION: Notice of meeting. commercial timber value; economic F.2d 1016, 1022 (9th Cir. 1986) and viability of timber salvage; effects of the Wisconsin Heritages, Inc. v. Harris, 490 SUMMARY: The Black Hills National proposed activities on potential wildfire F. Supp. 1334, 1338 (E.D. Wis. 1980). Forest Advisory Board (NFAB) will hold intensity; and effects on public access, Because of these court rulings, it is very a meeting to review its charter, discuss safety and use of the area. its roles and responsibilities in relation Public comments about this proposal important that those interested in this proposed action participate by the close to the Black Hills National Forest are requested in order to assist in (BHNF) management, and establish of the 45-day comment period so that properly scoping issues, determining operational procedures. Secretary of substantive comments and objections how to best manage the resources, and Agriculture Ann M. Veneman approved are made available to the Forest Service fully analyzing environmental effects. the board’s formation on January 16, Comments received to this notice, at a time when it can meaningfully 2003, and Regional Forester Rick Cables including names and addresses of those consider them and respond to them in appointed 15 members to the board in who comment, will be considered part the final EIS. early February 2003. The meeting is of the public record on this proposed To assist the Forest Service in open, and the public may attend any action and will be available for public identifying and considering issues and part of the meeting. inspection. Comments submitted concerns on the proposed action, DATES: anonymously will be accepted and The meeting will be held on comments on the draft EIS should be as considered; however, those who submit Saturday, March 29, 2003, from 9:30 anonymous comments will not have specific as possible. It is also helpful if a.m. to 2:30 p.m. standing to appeal the subsequent comments refer to specific pages or ADDRESSES: The meeting will take place decisions under 36 CFR parts 215 and chapters of the draft statement. at the Ramkota Best Western Hotel 217. Additionally, pursuant to 7 CFR Comments may also address the located at 2111 LaCrosse Street, Rapid 1.27(d), any person may request the adequacy of the draft EIS or the merits City, SD. agency to withhold a submission from of the alternatives formulated and FOR FURTHER INFORMATION CONTACT: Lois the public record by showing how the discussed in the statement. Reviewers Ziemann, Black Hills National Forest, Freedom of Information Act (FOIA) may wish to refer to the Council on 25041 North Highway 16, Custer, SD permits such confidentiality. Persons Environmental Quality Regulations for 57730, (605) 673–9200. requesting such confidentiality should implementing the procedural provisions Dated: February 28, 2003. be aware that, under FOIA, of the National Environmental Policy William G. Schleining, confidentiality may be granted in only Act at 40 CFR 1503.3 in addressing Acting Black Hills National Forest Supervisor. very limited circumstances, such as to these points. protect trade secrets. The Forest Service [FR Doc. 03–5249 Filed 3–5–03; 8:45 am] The final EIS is scheduled to be will inform the requester of the agency’s BILLING CODE 3410–11–M decision regarding the request for available October 2003. In the final EIS, confidentiality, and where the request is the Forest Service is required to respond denied, the agency will return the to substantive comments received DEPARTMENT OF COMMERCE submission and notify the requester that during the comment period for the draft the comments may be resubmitted with EIS. The Forest Service is the lead International Trade Administration or without name and address within a agency and the responsible official is [A–570–874] specified number of days. the Forest Supervisor, Deshutes Early Notice of Importance of Public National Forest. The responsible official Notice of Final Determination of Sales Participation in Subsequent will decide where, and whether or not at Less Than Fair Value: Certain Ball Environmental Review. A draft EIS will to salvage timber. The responsible Bearings and Parts Thereof From the be filed with the Environmental official will also decide how to mitigate People’s Republic of China Protection Agency (EPA) and available impacts of these actions and will AGENCY: Import Administration, for public review by May 2003. The EPA determine when and how monitoring of will publish a Notice of Availability International Trade Administration, effects will take place. The Eyerly Fire Department of Commerce. (NOA) of the draft EIS in the Federal Salvage decision and the reasons for the ACTION: Notice of final determination of Register. The comment period on the decision will be documented in the sales at less than fair value. draft EIS will be 45 days from the date record of decision. That decision will be the NOA appears in the Federal subject to Forest Service Appeal Register. EFFECTIVE DATE: March 6, 2003. The Forest Service believes, at this Regulations (36 CFR part 215). FOR FURTHER INFORMATION CONTACT: early stage, it is important to give Dated: February 26, 2003. James Terpstra or Cindy Lai Robinson, reviewers notice of several court rulings Kevin D. Martin, AD/CVD Enforcement, Office 6, Group related to public participation in the Deputy Forest Supervisor, Deschutes National II, Import Administration, International environmental review process. First, Forest. Trade Administration, U.S. Department reviewers of a draft EIS must structure [FR Doc. 03–5245 Filed 03–5–03; 8:45 am] of Commerce, 14th Street and their participation in the environmental Constitution Avenue, NW., Washington, review of the proposal so that it is BILLING CODE 3410–11–M DC 20230; telephone: (202) 482–3965, meaningful and alerts an agency to the and (202) 482–3797, respectively.

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SUPPLEMENTARY INFORMATION: Determination that we would make the and parts thereof (CRB) and spherical final determination no later than plain bearings, mounted and Final Determination February 26, 2003, the actual statutory unmounted, and parts thereof (SPB). Pursuant to section 735 of the Tariff deadline pursuant to section 735(a)(2) of CRB products include all antifriction Act of 1930, as amended (the Act), we the Act is February 27, 2003. bearings that employ cylindrical rollers determine that ball bearings from the Accordingly, we are issuing our final as the rolling element. SPB products People’s Republic of China (PRC) are determination on February 27, 2003, in include all spherical plain bearings that being sold, or are likely to be sold, in accordance with the statutory employ a spherically shaped sliding the United States at less than fair value requirement. element and include spherical plain rod (LTFV). The estimated margins of sales ends. at LTFV are shown in the ‘‘Final Scope of the Investigation Determination of Investigation’’ section The scope of the investigation Scope Clarification of this notice. includes all antifriction bearings, In the Preliminary Determination, the regardless of size, precision grade or Department addressed scope inquiries Background use, that employ balls as the rolling received from Caterpillar Inc., Nippon On October 15, 2002, the Department element (whether ground or unground) Pillow Block Sales Company Limited, of Commerce (the Department) and parts thereof (inner ring, outer ring, Nippon Pillow Block Manufacturing published its preliminary determination cage, balls, seals, shields, etc.) that are Company Limited and FYH Bearing of sales at LTFV in the antidumping produced in China. Imports of these Units USA, Inc. (collectively, NPBS), duty investigation of ball bearings from products are classified under the and Wanxiang. the PRC. See Notice of Preliminary following categories: antifriction balls, On April 22, 2002, Caterpillar Inc. Determination of Sales at Less Than ball bearings with integral shafts and requested that XLS (English) series ball Fair Value and Postponement of Final parts thereof, ball bearings (including bearings and pin-lock slot XLS (English) Determination: Certain Ball Bearings thrust, angular contact, and radial ball series ball bearings having an inside and Parts Thereof from the People’s bearings) and parts thereof, and housed diameter of between 13⁄4 inches and 51⁄2 Republic of China, 67 FR 63609 or mounted ball bearing units and parts inches be excluded from the scope of (October 15, 2002) (Preliminary thereof. The scope includes ball bearing the investigation. Determination). type pillow blocks and parts thereof and On April 23, 2002, NPBS requested On November 20, 2002, the wheel hub units incorporating balls as that the Department clarify whether Department published the amended the rolling element. With regard to split pillow block housings and non- preliminary determination of sales at finished parts, all such parts are split pillow block housings, which are LTFV in the antidumping duty included in the scope of the petition. imported separately from ball bearings, investigation of ball bearings from the With regard to unfinished parts, such are excluded from the scope of the PRC. See Notice of Amended parts are included if (1) they have been investigation. Preliminary Determination of Sales at heat-treated, or (2) heat treatment is not On May 28, 2002, Wanxiang, one of Less Than Fair Value: Certain Ball required to be performed on the part. the three mandatory respondents, Bearings and Parts Thereof from the Thus, the only unfinished parts that are requested guidance as to whether the People’s Republic of China, 67 FR 70053 not covered by the petition are those language in the scope stating that the (November 20, 2002) (Amended that will be subject to heat treatment investigation covers ‘‘wheel hub units Preliminary Determination). Since the after importation. incorporating balls as the rolling preliminary determination, the Imports of these products are element’’ also includes wheel hub units following events have occurred. classified under the following that do not contain ball bearings or any During November and December Harmonized Tariff Schedules of the other type of rolling element at the time 2002, the Department conducted United States (HTSUS) subheadings: of importation. verifications of the mandatory 3926.90.45, 4016.93.00, 4016.93.10, The Department preliminarily respondents’ 1 sales and factors of 4016.93.50, 6909.19.5010, 8431.20.00, determined that the scope of the production information. 8431.39.0010, 8482.10.10, 8482.10.50, investigation includes all antifriction 2 Both the petitioner and the 8482.80.00, 8482.91.00, 8482.99.05, bearings, regardless of size, precision mandatory respondents (respondents) 8482.99.2580, 8482.99.35, 8482.99.6595, grade or use, that employ balls as the filed surrogate value information and 8483.20.40, 8483.20.80, 8483.30.40, rolling element, and parts thereof. data on December 13, 2002. On 8483.30.80, 8483.50.90, 8483.90.20, Therefore, XLS (English) series ball December 23, 2002, petitioner and 8483.90.30, 8483.90.70, 8708.50.50, bearings and pin-lock slot XLS (English) respondents filed information rebutting 8708.60.50, 8708.60.80, 8708.70.6060, series ball bearings are clearly within the December 13 factor value 8708.93.30, 8708.93.6000, 8708.93.75, the scope. With respect to NPBS’s submissions. 8708.99.06, 8708.99.31, 8708.99.4000, request for clarification of whether split Parties filed case and rebuttal briefs 8708.99.4960, 8708.99.5800, pillow block housings and non-split on January 13 and January 21, 2003, 8708.99.8080, 8803.10.00, 8803.20.00, pillow block housings that are imported respectively. On January 22, 2003, a separately from ball bearings are public hearing was held at the 8803.30.00, 8803.90.30, and 8803.90.90. Although the HTSUS subheadings are excluded from the scope of this Department of Commerce. investigation, the Department We note that although we stated in provided for convenience and U.S. previously determined in Final our Amended Preliminary Customs Service (Customs) purposes, the written description of the Determination of Sales at Less Than Fair Value: Antifriction Bearings (Other 1 The mandatory respondents in this investigation merchandise under investigation is are Zhejiang Xinchang Peer Bearing Company Ltd. dispositive. Than Tapered Roller Bearings) and (Peer), Wanxiang Group Corporation (Wanxiang), Specifically excluded from the scope Parts Thereof from the Republic of and Ningbo Cixing Group Corp. and its U.S. are unfinished parts that are subject to Germany, 54 FR 18992, 19015 (May 3, affiliate, CW Bearings USA, Inc. (collectively, Cixing). heat treatment after importation. Also 1989) (Antifriction Bearings) that pillow 2 The petitioner in this case is the American excluded from the scope are cylindrical block housings are not bearings, do not Bearing Manufacturers Association (ABMA). roller bearings, mounted or unmounted, contain bearings, and are not parts or

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subassemblies of bearings. Therefore, These two additional scope requests Guan Bearing Factory’s request because consistent with that determination and were received after the Preliminary the company has stated that it must the facts of this investigation, we found Determination. Due to time constraints continue to export under its old name that split pillow block housings (not in conducting this investigation, the until Chinese Customs switches to the containing antifriction bearings) are Department was unable to address the new name, and because the company excluded from the scope of this additional scope requests within the has not provided any supporting investigation. However, the scope of the context of this investigation. As a result, documentation. Therefore, the current investigation includes ball we have not addressed the scope Department will not issue any bearing type pillow blocks and parts requests or additional arguments raised instructions to Customs pertaining to thereof. Thus, non-split pillow blocks, by the petitioner in our final the company’s new name. even when imported separately, are determination. However, should an On November 25, 2002, Zhejiang included in the scope. order be issued in the instant Xinchang Peer Bearing Company, Ltd., a Regarding Wanxiang’s request for investigation, parties can resubmit Chinese exporter, and Peer Bearing clarification as to whether empty wheel scope requests in accordance with Company, its affiliated U.S. importer of hub units are included in the scope, in section 351.225 of the Department’s subject merchandise (Peer), requested the Preliminary Determination, the regulations and the Department will that the Department inform Customs Department stated that we would examine such requests in that context. that the current antidumping rate examine this issue further to determine assigned to Xinchang Peer Bearing Name Changes whether the empty wheel hub units Company, Ltd., is also applicable to produced by Wanxiang use balls or Since the Preliminary Determination, Zhejiang Xinchang Peer Bearing tapered roller bearings interchangeably. a number of parties have notified the Company, Ltd. The company stated that At the verification of Wanxiang, Department of incorrect company names its formal company name is Zhejiang company officials used a model of an or have requested name changes. Xinchang Peer Bearing Company, Ltd. empty wheel hub unit to demonstrate On October 31, 2002 and on January However, in the Preliminary that the base of the unit can be used 13, 2003, Zhejiang Rolling Bearing Co., Determination and Amended with either ball bearings or tapered Ltd. (ZRB) informed the Department of Preliminary Determination, the bearings as the rolling element. Based its name change to Zhejiang Tianma Department referred to the company as on that demonstration, we determine Bearing Co., Ltd. The supporting Xinchang Peer Bearing Company, Ltd. that because the empty wheel hub units documentation included a pre-approval Based on record evidence demonstrating produced by Wanxiang can use either from the Zhejiang Industrial and the company’s true name, the balls or tapered roller bearings Commercial Administration Bureau. Department determined that Peer’s interchangeably, such merchandise is ZRB also stated that notwithstanding formal name is Zhejiang Xinchang Peer included within the scope of this the approval, it is required under Bearing Company, Ltd. Accordingly, the investigation. Neither the Department Chinese law to maintain its original Department will provide specific nor Customs can ascertain with name for one year after final approval. instructions to Customs for Zhejiang certainty which empty well hub units We find that during the period of Xinchang Peer Bearing Company, Ltd. will be solely used for tapered roller investigation (POI), the company name bearings and which ones will be remained ZRB; therefore, the company- Period of Investigation designated for use with roller bearings. specific rate is only applicable to ZRB. The POI is July 1, 2001, through Based on the foregoing, the For further discussion of this issue, see December 31, 2001. This period Department maintains its position in the Comment 4, ‘‘Corporate Name Change corresponds to the two most recent final determination that the scope of the Filing’’ of the Memorandum from Holly fiscal quarters prior to the month of the investigation includes XLS (English) A. Kuga, Acting Deputy Assistant filing of the petition (i.e., February series ball bearings and pin-lock slot Secretary for Import Administration, to 2002). See 19 CFR 351.204(b)(1). XLS (English) series ball bearings; non- Faryar Shirzad, Assistant Secretary for split pillow blocks, even when imported Import Administration, ‘‘Issues and Analysis of Comments Received separately; and empty wheel hub units. Decision Memorandum for the Final All issues raised in the case and See Preliminary Determination, 67 FR Determination in the Antidumping Duty rebuttal briefs by parties to this 63610. Investigation of Certain Ball Bearings proceeding and to which we have Since the publication of the and Parts Thereof from the People’s responded are listed in the Appendix to Preliminary Determination, the Republic of China,’’ dated concurrently this notice and addressed in the Department received two requests for with this notice (Decision Decision Memorandum, which is hereby scope clarifications. On November 15, Memorandum). adopted by this notice. Parties can find 2002, Guangdong Agricultural On November 1, 2002, China National a complete discussion of the issues Machinery Import & Export (GAM), a Automotive Industry Guizhou Import & raised in this investigation and the voluntary Section A respondent, Export Corporation stated that they had corresponding recommendations in this requested that the Department exclude incorrectly reported the company’s public memorandum which is on file in mast guide bearings and chain wheels name as China National Automobile the central records unit (CRU), room B– from the scope, which they claim are Industry Guizhou Import & Export 099 of the main Commerce building. In used exclusively in forklift trucks. Corporation. Dong Guan Bearing Factory addition, a complete version of the Alternatively, GAM requested that the also reported that it is in the process of Decision Memorandum can be accessed Department determine that mast guide changing its name to Dong Guan TR directly on the Web at http:// bearings are a separate class or kind of Bearings Group, Ltd. (TR) and requested ia.ita.doc.gov. The paper copy and subject merchandise than all other ball that the Department use both the old electronic version of the Decision bearings. On December 6, 2002, EMPI and new names in the instructions to Memorandum are identical in content. Inc. sought a scope clarification for Customs. Regarding the first request, the some of the balls that it imports because Department will notify Customs of the Non-Market Economy those balls are used exclusively in the correct company name. However, the The Department has treated the PRC rebuilding of CV joints. Department is unable to grant Dong as a non-market economy (NME)

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country in all its past antidumping When analyzing the petition for Preliminary Determination’’ section investigations. See Notice of Final purposes of the initiation, the below. Determination of Sales at Less Than Department reviewed all of the data Changes Since the Preliminary Fair Value: Certain Folding Gift Boxes upon which the petitioner relied in Determination from the People’s Republic of China, 66 calculating the estimated dumping FR 58115 (November 20, 2001); Notice margin and determined that the margin Based on our findings at verification of Final Determination of Sales at Less in the petition was appropriately and on our analysis of the comments Than Fair Value: Certain Cold-Rolled calculated and supported by adequate received, we have made adjustments to Carbon Steel Flat Products from the evidence in accordance with the the calculation methodologies used in People’s Republic of China, 67 FR 62107 statutory requirements for initiation. In the preliminary determination. These (October 3, 2002). A designation as an order to corroborate the petition margin adjustments are discussed in detail in NME country remains in effect until it for purposes of using it as adverse facts the (1) Decision Memorandum, (2) is revoked by the Department. See available, we examined the price and Memorandum from the Team to the section 771(18)(C) of the Act. The cost information provided in the File, ‘‘Final Factors of Production respondents in this investigation have petition in the context of our Valuation Memorandum,’’ dated not requested a revocation of the PRC’s preliminary determination. For further February 27, 2003, and (3) NME status. Therefore, we have details, see Memorandum from David Memorandum from the Team to the continued to treat the PRC as a NME in Salkeld, Case Analyst, to Melissa G. File, ‘‘Calculation Memorandum for the this investigation. For further details, Skinner, Office Director, ‘‘Corroboration Final Determination,’’ dated February see the Preliminary Determination. of Secondary Information,’’ dated 27, 2003. October 1, 2002. Separate Rates Since the Preliminary Determination, Continuation of Suspension of Liquidation In our Preliminary Determination, we we have received comments from the found that forty-five companies met the petitioner, which are discussed in the In accordance with section criteria for the application of separate, accompanying Decision Memorandum 735(c)(1)(B)(ii) of the Act, we are company-specific antidumping duty at Comment 5. The Department has directing Customs to continue rates. We have not received any other continued to use the PRC-wide rate suspension liquidation of entries of information since the Preliminary calculation methodology it employed subject merchandise from the PRC, Determination which would warrant for the Preliminary Determination, and except for merchandise produced and reconsideration of our separates rates the PRC-wide rate is, for the final exported by Cixing, that are entered, or determination with respect to these determination, 59.30 percent. withdrawn from warehouse, for companies. For a complete discussion of Surrogate Country consumption on or after October 15, the Department’s determination that the For purposes of the final 2002 (the date of publication of the respondents are entitled to a separate determination, we continue to find that Preliminary Determination in the rate, see the Preliminary Determination. India remains the appropriate surrogate Federal Register). We will instruct Customs to require a cash deposit or the The PRC-Wide Rate country for the PRC. For further discussion and analysis regarding the posting of a bond equal to the weighted- In the Preliminary Determination, we surrogate country selection for the PRC, average amount by which the normal found that the use of adverse facts see the Preliminary Determination. value exceeds the U.S. price, as available for the PRC-wide rate was indicated in the chart below. appropriate for other exporters in the Verification Merchandise produced and exported by PRC based on our presumption that As provided in section 782(i) of the Cixing will be excluded from any those respondents who failed to Act, we verified the information antidumping duty order, if issued. demonstrate entitlement to a separate submitted by the respondent for use in These suspension-of-liquidation rate constitute a single enterprise under our final determination. We used instructions will remain in effect until common control by the Chinese standard verification procedures further notice. government. The PRC-wide rate applies including examination of relevant Final Determination of Investigation to all entries of the merchandise under accounting and production records, and investigation except for entries from the original source documents provided by We determine that the following three mandatory respondents and the the respondents. For changes from the weighted-average percentage margins respondents that are entitled to a Preliminary Determination as a result of exist for the period July 1, 2001, through separate rate. verification, see the ‘‘Changes Since the December 31, 2001:

Weighted- average Manufacturer/exporter margin (percent)

Zhejiang Xinchang Peer Bearing Company Ltd ...... 8.33 Wanxiang Group Corporation ...... 7.22 Ningbo Cixing Group Corp ...... 1 0.59 B&R Bearing Co ...... 7.80 Changshan Import & Export Company, Ltd ...... 7.80 Changzhou Daya Import and Export Corporation Limited ...... 7.80 China Huanchi Bearing Group Corp. and Ningbo Huanchi Import & Export Co. Ltd ...... 7.80 China National Automobile Industry Guizhou Import & Export Corp ...... 7.80 China National Machinery & Equipment Import & Export Wuxi Co., Ltd ...... 7.80 Chongqing Changjiang Bearing Industrial Corporation ...... 7.80 CSC Bearing Company Limited ...... 7.80 Dongguan TR Bearing Corporation, Ltd ...... 7.80

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Weighted- average Manufacturer/exporter margin (percent)

Fujian Nanan Fushan Hardware Machinery Electric Co., Ltd ...... 7.80 Guangdong Agricultural Machinery Import & Export Company ...... 7.80 Harbin Bearing Group and Heilongjiang Machinery and Equipment Import and Export Corporation ...... 7.80 Jiangsu CTD Imports & Exports Co., Ltd ...... 7.80 Jiangsu General Ball & Roller Co., Ltd ...... 7.80 Jiangsu Hongye Intl. Group Industrial Development Co., Ltd ...... 7.80 Jinrun Group Ltd. Haining ...... 7.80 Ningbo Cixi Import Export Co ...... 7.80 Ningbo Economic and Technological Development Zone and Tiansheng Bearing Co. Ltd and TSB Group USA Inc. and TSB Bearing Group America, Co. (TSB Group) ...... 7.80 Ningbo General Bearing Co., Ltd ...... 7.80 Ningbo Jinpeng Bearing Co., Ltd. and Ningbo Mikasa Bearing Co. Ltd. and Ningbo Cizhuang Bearing Co. Tahsleh Development Zone ...... 7.80 Ningbo MOS Group Corporation, Ltd ...... 7.80 Norin Optech Co., Ltd ...... 7.80 Premier Bearing & Equipment, Ltd ...... 7.80 Sapporo Precision Inc./Shanghai Precision Bearing Co., Ltd ...... 7.80 Shaanxi Machinery & Equipment Import & Export Corp ...... 7.80 Shandong Machinery Import & Export Group Corp ...... 7.80 Shanghai Bearing (Group) Company Limited ...... 7.80 Shanghai Foreign Service and Economic Cooperation Co. Ltd ...... 7.80 Shanghai General Pudong Bearing Co., Ltd ...... 7.80 Shanghai Hydraulics & Pneumatics Corp ...... 7.80 Shanghai Nanshi Foreign Economic Cooperation & Trading Co., Ltd ...... 7.80 Shanghai SNZ Bearings Co., Ltd ...... 7.80 Shanghai Zhong Ding I/E Trading Co., Ltd. and Shanghai Li Chen Bearings ...... 7.80 Shaoguan Southeast Bearing Co. Ltd ...... 7.80 Sin NanHwa Bearings Co. Ltd. and Sin NanHwa Co. Ltd ...... 7.80 TC Bearing Manufacturing Co. Ltd ...... 7.80 Wafangdian Bearing Company Ltd ...... 7.80 Wholelucks Industrial Limited ...... 7.80 Wuxi New-way Machinery Co., Ltd ...... 7.80 Zhejiang Rolling Bearing Co. Ltd ...... 7.80 Zhejiang Shenlong Bearing Co. Ltd ...... 7.80 Zhejiang Wanbang Industrial Co., Ltd ...... 7.80 Zhejiang Xinchang Xinzhou Industrial Co. Ltd ...... 7.80 Zhejiang Xinchun Bearing Co. Ltd ...... 7.80 Zhejiang ZITIC Import & Export Co. Ltd ...... 7.80 PRC-Wide Rate ...... 59.30 1 De Minimis.

International Trade Commission Notification Regarding Administrative Dated: February 27, 2003. Notification Protective Order (APO) Faryar Shirzad, Assistant Secretary for Import In accordance with section 735(d) of This notice also serves as a reminder Administration. the Act, we have notified the to parties subject to APO of their International Trade Commission (ITC) of responsibility concerning the Appendix—Issues in Decision our determination. As our final disposition of proprietary information Memorandum determination is affirmative, the ITC disclosed under APO in accordance I. General Issues will determine, within 45 days, whether with 19 CFR 351.305. Timely Comment 1: Valuation of Overhead, SG&A, these imports are materially injuring, or notification of return/destruction of and Profit Ratios (‘‘Financial Ratios’’) threaten material injury to, the U.S. APO materials or conversion to judicial A. Whether Companies Which Reported a industry. If the ITC determines that protective order is hereby requested. Loss Should Be Excluded from Profit material injury, or threat of material Failure to comply with the regulations Ratios Calculation injury does not exist, the proceeding and the terms of an APO is a B. Whether the Department Should Use a Weighted Average or a Simple Average will be terminated and all securities sanctionable violation. to Calculate Financial Ratios posted will be refunded or canceled. If This determination is issued and C. Whether the Department Should the ITC determines that such injury published in accordance with sections Exclude Companies Which Did Not does exist, the Department will issue an 735(d) and 777(i)(1) of the Act. Manufacture the Merchandise under antidumping duty order directing Investigation Customs officials to assess antidumping D. Whether the Department Should Exclude Financial Data That Are Not duties on all imports of subject Contemporaneous with the POI merchandise entered for consumption E. Whether the Department Should on or after the effective date of the Exclude Companies That Were Owned suspension of liquidation. and Controlled by the Indian Government

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F. Whether the Department Should Should Use More Contemporaneous Data DEPARTMENT OF COMMERCE Exclude Company Data Where the Involving Full Shipments for Brokerage Company Is Less Integrated and Handling Charges International Trade Administration G. Whether the Department Should Restate Indian Surrogate Producers’ FOH and B. Wanxiang [A–570–803] SG&A to Eliminate Certain Distortions Comment 24: Surrogate Value for Wooden H. Whether the Department Should Packing Pallets, Boxes Heavy Forged Hand Tools, Finished or Exclude the Financial Statements of Comment 25: Wanxiang’s EMQ Bearings Unfinished, With or Without Handles, Indian Producers Which Are Affiliated Comment 26: Wanxiang’s CEP and From the People’s Republic of China: with Petitioner Commission Offset Preliminary Results of Antidumping I. Whether the Department Should Exclude Duty Administrative Review of the the Financial Data of Multinational Comment 27: Wanxiang’s Steel and Scrap Corporations: SKF, FAG, and TIL Data Order on Bars and Wedges J. Which Indian Surrogate Producers Comment 28: Wanxiang’s Brokerage & AGENCY: Import Administration, Should Be Included as Surrogate Source Handling for Valuing Financial Ratios Comment 29: U.S. Inland Freight International Trade Administration, Comment 2: Respondent Selection Comment 30: Ocean Freight Department of Commerce. Comment 3: GAM Mast Guide Bearings and Comment 31: Computer Programming Error ACTION: Preliminary results of Chain Wheels (ELASCLP2) antidumping duty administrative Comment 4: Corporate Name Change Filing Comment 32: Steel Type for Rings and Balls review. Comment 5: PRC-Wide Rate Comment 33: Steel Wire Rod (for Balls) Comment 6: Valuation of Purchased SUMMARY: In response to a request by the Components Comment 34: Surrogate Value for SAE 1045 Plain Carbon Steel for Hubs, Spindles respondent, the Department of Comment 7: Calculating Margins on a Per- Commerce (the Department) is Unit Basis and Circlips, Bolts Comment 8: Market Economy Steel Values- Comment 35: Surrogate Value for SAE 1566 conducting an administrative review of Korea/India Structure Carbon Steel for Certain Outer the antidumping duty order on bars/ Rings and Spindles wedges from the People’s Republic of II. Company-Specific Issues Comment 36: Surrogate Value for Steel Bar China (PRC). We preliminarily A. Peer (for Rings) determine that Shandong Huarong Comment 9: Correction of Errors Made in the Comment 37: Surrogate Value for Steel Tube Machinery Company (Huarong) sold Preliminary Margin (for Rings) bars/wedges in the United States at Comment 10: Incorporation of Corrections Comment 38: Surrogate Value for Cold- prices below normal value (NV) during Made Prior to Verification Rolled Steel for Shields, Cages, Rubber the period of review (POR). Comment 11: Incorporation of Corrections for If these preliminary results are Discrepancies Found at Verifications Seals, Rivets Comment 12: Require Peer to Provide Comment 39: Empty Wheel Hub Units adopted in our final results of review, Complete and Accurate Data for Certain C. Cixing we will instruct the U.S. Customs CONNUMs or Use Facts Available Service (Customs) to assess Comment 13: Whether the Department Comment 40: The Department Made an Error antidumping duties on all appropriate Should Correct Peer’s Scrap Recycle in Calculating the Regression-Based entries. We invite interested parties to Ratio and Recalculate Peer’s Material Wage Rate for China comment on these preliminary results. Costs Comment 41: Cixing’s Market Economy EFFECTIVE DATE: Comment 14: Whether the Department Purchases of Balls March 6, 2003. Should Confirm That Peer Has Reported Comment 42: Cixing’s Scrap Offset FOR FURTHER INFORMATION CONTACT: Any Estimated Rebates Comment 43: Cixing’s Surrogate Value for Mark Manning or Tom Martin, AD/CVD Comment 15: Whether the Department Inner and Outer Ring Steel Enforcement, Office 4, Group II, Import Should Examine or Restate Peer’s Comment 44: Cixing’s Market Economy Administration, International Trade Reported ‘‘Section E’’ Costs Purchases of Coil Administration, U.S. Department of Comment 16: Whether the Department Comment 45: Cixing’s Marine and Inland Commerce, 14th Street and Constitution Should Restate Peer’s U.S. Indirect Selling Expenses Insurance Avenue, NW., Washington, DC 20230; Comment 17: Whether the Department Comment 46: Liquidation During the telephone (202) 482–5253, (202) 482– Should Restate Certain Factors (Labor Provisional Period 3936, respectively. and Certain Materials) Which Could Not Comment 47: Cixing’s Brokerage and SUPPLEMENTARY INFORMATION: be Obtained from Suppliers or Handling Subcontractors Comment 48: Cixing’s Air Freight Period of Review Comment 18: Whether the Department Comment 49: Cixing’s Electric Motor Quality The POR is February 1, 2001, through Should Use Facts Available for U.S. (EMQ) Bearings January 31, 2002. Inland Freight from the Warehouse to Comment 50: Cixing’s CONNUM Reporting Unaffiliated Customers (INLFWCU) Methodology and Ball Weights Background Comment 19: Whether The Department Comment 51: Clerical Errors in the Amended Should Use Facts Available for Peer’s On February 19, 1991, the Department Preliminary Program U.S. Unaffiliated Commissions published in the Federal Register (56 Comment 20: Whether the Department [FR Doc. 03–5300 Filed 3–5–03; 8:45 am] FR 6622) four antidumping duty orders Should Revise Its Margin Calculation BILLING CODE 3510–DS–P on heavy forged hand tools (HFHTs) Methodology from the PRC. Imports covered by these Comment 21: Whether the Department orders comprise the following classes or Should Exclude Certain Non-Operational kinds of merchandise: (1) Hammers and Expenses and Reclassify Certain sledges with heads over 1.5 kg (3.33 Operational Expenses in Calculating Financial Ratios pounds) (hammers/sledges); (2) bars Comment 22: Whether the Department over 18 inches in length, track tools and Should Use More Contemporaneous wedges (bars/wedges); (3) picks/ Electricity Data mattocks; and (4) axes/adzes. On Comment 23: Whether the Department February 1, 2002, the Department

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published a notice of opportunity to Antidumping Duty Administrative exporter sets its own export prices request administrative reviews of the Review, 67 FR 64869 (October 22, 2002). independent of the government and antidumping duty orders on HFHTs The Department is conducting this without the approval of a government from the PRC covering the period administrative review in accordance authority; (2) whether each exporter February 1, 2001, through January 31, with section 751 of the Act. retains the proceeds from its sales and 2002 (67 FR 4945). On February 28, Scope of Review makes independent decisions regarding 2002, Tianjin Machinery Import & the disposition of profits or financing of Export Corporation (TMC), Shandong The products covered by this review losses; (3) whether each exporter has the Machinery Import & Export Corporation are bars over 18 inches in length, track authority to negotiate and sign contracts (SMC), Liaoning Machinery Import & tools and wedges (bars/wedges), which and other agreements; and (4) whether Export Corporation (LMC), and Huarong may or may not be painted, may or may each exporter has autonomy from the requested administrative reviews in the not be finished; assorted bar products government regarding the selection of above-referenced proceedings. and track tools including wrecking bars, management. See Silicon Carbide, 59 FR Specifically, TMC requested reviews of digging bars and tampers; and steel at 22587 and Sparklers, 56 FR at 20589. the hammers/sledges, bars/wedges, wood splitting wedges. The subject In the final results of the 2000–2001 picks/mattocks and axes/adzes orders, merchandise is manufactured through a administrative reviews of HFHTs from SMC requested reviews of the hammers/ hot forge operation in which steel is the PRC, the Department granted a sledges, bars/wedges, and picks/ sheared to required length, heated to separate rate to Huarong. See Heavy mattocks orders, LMC requested a forging temperature, and formed to final Forged Hand Tools from the People’s review of the bars/wedges order, and shape on forging equipment using dies Republic of China: Final Results and Huarong requested a review of the bars/ specific to the desired product shape Partial Rescission of Antidumping Duty wedges order. Based on these requests, and size. Depending on the product, Administrative Review and the Department initiated the current finishing operations may include shot Determination Not To Revoke in Part, 67 administrative reviews of TMC, SMC, blasting, grinding, polishing and FR 57789 (September 12, 2002). It is the LMC, and Huarong under the requested painting. Bars and wedges are currently Department’s policy to evaluate separate orders on March 20, 2002. See Initiation provided for under the Harmonized rates questionnaire responses each time of Antidumping and Countervailing Tariff Schedule of the United States a respondent makes a separate rates Duty Administrative Reviews and (HTSUS) subheading 8205.59.30. claim, regardless of any separate rate the Requests for Revocations in Part, 67 FR Specifically excluded from this review respondent received in the past. See 14696 (March 27, 2002). are bars 18 inches in length and under. Manganese Metal From the People’s On May 3, 2002, LMC withdrew its The HTSUS subheading is provided for Republic of China, Final Results and request for review of the bars/wedges convenience and Customs purposes. Partial Rescission of Antidumping Duty order. On May 10, 2002, TMC withdrew The written description remains Administrative Review, 63 FR 12441 its requests for review of the hammers/ dispositive. (March 13, 1998). sledges and picks/mattocks orders. On Separate Rates Determination In the instant review, Huarong June 7, 2002, SMC withdrew its request submitted a complete response to the for review under the picks/mattocks To establish whether a company separate rates section of the order. Additionally, on September 26, operating in a non-market economy Department’s questionnaire. The 2002, TMC withdrew its requests for (NME) is sufficiently independent to be evidence submitted by Huarong review of the axes/adzes order and bars/ entitled to a separate rate, the includes government laws and wedges order, and SMC withdrew its Department analyzes each exporting regulations on corporate ownership, its requests for review of the bars/wedges entity under the test established in the business licence, and narrative and hammers/sledges orders. The Final Determination of Sales at Less information regarding its operations and Department rescinded these reviews on Than Fair Value: Sparklers from the selection of management. This evidence January 3, 2003. See Notice of People’s Republic of China, 56 FR 20588 supports a finding of a de jure absence Rescission of Antidumping Duty (May 6, 1991) (Sparklers), and the Final of government control over export Administrative Review: Heavy Forged Determination of Sales at Less Than activities: (1) There are no controls on Hand Tools from the People’s Republic Fair Value: Silicon Carbide from the exports of subject merchandise, such as of China: Partial Rescission of People’s Republic of China, 59 FR 22585 export quotas applied to the subject Antidumping Duty Administrative (May 2, 1994) (Silicon Carbide). Under merchandise and no export license is Review, 68 FR 352 (January 3, 2003). this test, NME firms are entitled to required for exports of the subject The remaining review covers bars/ separate, company-specific margins merchandise to the United States; and wedges sold by Huarong. when they can demonstrate an absence (2) the subject merchandise does not Pursuant to section 751(a)(3)(A) of the of government control, both in law and appear on any government list regarding Tariff Act of 1930, as amended (the Act), in fact, with respect to their export export provisions or exporting licensing. the Department may extend the activities. Evidence supporting, though Huarong has also shown de facto deadline for completion of the not requiring, a finding of de jure absence of government control over preliminary results of an administrative absence of government control over exports in its questionnaire response: (1) review if it determines that it is not export activities includes: (1) An Huarong sets its own export prices practicable to complete these absence of restrictive stipulations independently of the government and preliminary results within the statutory associated with the individual without requiring the approval of a time limit of 245 days. On October 22, exporter’s business and export licenses; government authority; (2) Huarong 2002, in accordance with the Act, the (2) any legislative enactments retains the proceeds from its sales and Department published its extension of decentralizing control of companies; makes independent decisions regarding the time limit for completing the and (3) any other formal measures by the disposition of profits or financing of preliminary results of this review. See the government decentralizing control losses; (3) Huarong has a general Heavy Forged Hand Tools from the of companies. De facto absence of manager and three vice general People’s Republic of China: Extension of government control over exports is managers with the authority to negotiate Time Limit for Preliminary Results of based on four factors: (1) Whether each and bind the company in an agreement;

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(4) the general manager is selected by Certain Heavy Forged Hand Tools (Bars/ employed; (C) amounts of energy and company employees, and the general Wedges) From the People’s Republic of other utilities consumed; and (D) manager appoints the manager of each China—February 1, 2001, through representative capital costs, including department and (5) foreign currency is January 31, 2002,’’ dated February 28, depreciation. In accordance with section not required to be sold to the 2003 (Surrogate Value Memorandum). 773(c)(4) of the Act, the Department government. The Department Since Huarong ships subject valued the FOPs, to the extent possible, preliminarily determines that Huarong merchandise to the United States using using the costs of the FOP in a market has established that it qualifies for NME carriers, we valued ocean freight economy that is at a level of economic separate rates under the criteria using a rate calculated in Certain development comparable to the PRC established by Silicon Carbide and Stainless Steel Wire Rod from India; and a significant producer of Sparklers. Final Results of Antidumping Duty comparable merchandise. We Administrative and New Shipper preliminarily determine that India is Fair Value Comparisons Reviews, 64 FR 856 (January 6, 1999) comparable to the PRC in terms of per- To determine whether Huarong’s sales (India Wire Rod). capita gross national product, the of bars/wedges were made at prices less We valued foreign brokerage and growth rate in per-capita income, and than normal value (NV), we compared handling using a rate also reported in the national distribution of labor. the export price (EP) to NV, as described the questionnaire response in India Wire Furthermore, India is a significant in the Export Price and Normal Value Rod. See Surrogate Value Memorandum. producer of comparable merchandise. sections of this notice, below. We valued port charges using the Consequently, we preliminarily In its February 4, 2003, supplemental charges for services rendered to determine that India is the country most questionnaire response, Huarong stated containers and containerized cargo set comparable to the PRC among the that it reported identical merchandise by the Board of Trustees of Jawaharlal significant exporting countries of under multiple CONNUMs in both its Nehru Port, effective March 17, 1997. comparable merchandise. See U.S. sales and factors of production We valued marine insurance using the Memorandum from Jeffrey May, databases. To correct this error, we rate that was reported in the public Director of the Office of Policy, to created new CONNUMs and assigned a version of the questionnaire response Thomas Martin, International Trade single CONNUM to identical placed on the record in India Wire Rod. Compliance Specialist, ‘‘Antidumping merchandise originally reported under See Surrogate Value Memorandum. Administrative Review of Heavy Forged multiple CONNUMs. See Memorandum We adjusted all surrogate values, as Hand Tools (Bars/Wedges) from the from Thomas E. Martin, International appropriate, to account for inflation People’s Republic of China (PRC): Trade Compliance Specialist, to the between the effective period of the Request for a List of Surrogate File, ‘‘Calculation Memorandum for the surrogate value information and the Countries,’’ dated January 17, 2003. Preliminary Results of the Eleventh POR. We calculated the inflation In accordance with section 773(c)(1) Administrative Reviews of Certain adjustments for the factor values, using of the Act, for purposes of calculating Heavy Forged Hand Tools (Bars/ the wholesale price index (WPI) for NV, we attempted to value FOP using Wedges) From the People’s Republic of India obtained from International Indian surrogate values that were in China—February 1, 2001, through Financial Statistics, which is a effect during the POR. Where January 31, 2002,’’ dated February 28, publication of the International contemporaneous data was not available 2003 (Calculation Memorandum). Monetary Fund (IMF). See Surrogate to the Department, the most recent data Value Memorandum. Export Price was used, and adjusted to account for Normal Value inflation between the effective period In accordance with section 772(a) of and the POR. As discussed in detail in the Act, the Department calculated an For exports from NMEs, section the Surrogate Value Memorandum, we EP for Huarong’s sales to the United 773(c)(1) of the Act provides that the valued the FOP as follows: States because the first sale to an Department shall determine NV using a (1) We valued direct materials used to unaffiliated party was made before the factors of production (FOP) produce bars and wedges, packing date of importation and the use of methodology if (1) the subject materials, and coal used for energy constructed export price (CEP) was not merchandise is exported from a NME using, where available, the rupee-per- otherwise warranted. When appropriate, country, and (2) available information kilogram value of imports that entered we made deductions from the selling does not permit the calculation of NV India during February 2000 through price to unaffiliated parties for foreign using home-market prices, third-country January 2001, as published in Monthly inland freight, brokerage and handling, prices, or constructed value. Section Statistics of the Foreign Trade of India, port charges, ocean freight, and marine 351.408 of the Department’s regulations Volume II—Imports (Indian Import insurance. Each of these services was (2001) sets forth the Department’s Statistics). either provided by a NME vendor or methodology for calculating the NV of (2) We valued labor using a paid for using a NME currency. Thus, merchandise from NME countries. In regression-based wage rate, in we based the deduction for these every case conducted by the Department accordance with 19 CFR 351.408(c)(3). movement charges on surrogate values. involving the PRC, the PRC has been This rate is identified on the Import We valued foreign inland freight treated as a NME. Since none of the Administration’s Web site. See http:// using a truck rate obtained from Notice parties to this proceeding has contested ia.ita.doc.gov/wages/corrected00wages/ of Final Determination of Sales at Less such treatment in this review, we corrected00wages.htm. Than Fair Value: Bulk Aspirin from The calculated NV in accordance with (3) We derived ratios for selling, People’s Republic of China, 65 FR 33805 section 773(c) of the Act and section general and administrative (SG&A) (May 25, 2000) (Bulk Aspirin). See 351.408 of the Department’s regulations. expenses, factory overhead, and profit Memorandum from Thomas E. Martin, In accordance with section 773(c)(3) using information reported for 2000– International Trade Compliance of the Act, the FOP utilized in 2001, for 1,927 Public Limited Specialist, to the File, ‘‘Surrogate Values producing bars and wedges include, but Companies, in the Reserve Bank of India Used for the Preliminary Results of the are not limited to: (A) Hours of labor Bulletin for September 2002 (RBI Eleventh Administrative Reviews of required; (B) quantities of raw materials Bulletin). From this information, we

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were able to calculate factory overhead Tools from the People’s Republic of information in the questionnaire as a percentage of direct materials, China, 66 FR 48026 (September 17, response was derived, the Department labor, and energy expenses; SG&A 2001), and the accompanying Issues and did not consider the information expenses as a percentage of the total Decision Memorandum at Comment 18; verified. See Heavy Forged Hand Tools, cost of manufacturing (TOTCOM); and Notice of Initiation of Antidumping Finished or Unfinished, With or Without profit as a percentage of the sum of the Duty Investigation: Lawn and Garden Handles, from the People’s Republic of TOTCOM and SG&A expenses. See Steel Fence Posts From the People’s China; Final Results and Partial Surrogate Value Memorandum. Republic of China, 67 FR 37388, 37391 Rescission of Antidumping Duty Whenever possible, the Department (May 29, 2002), and the accompanying Administrative Reviews, 64 FR 43659, has used producer-specific data to Issues and Decision Memorandum, at 43665–43666 (August 11, 1999). calculate financial ratios. Unlike Comment 6. For these preliminary review results industry-specific data, which tends to (4) We valued electricity using 2000– the Department has accepted Huarong’s be broader in terms of merchandise 2001 data from the Annual Report on reported ‘‘caps’’ for the purpose of included, product-specific data obtained The Working of State Electricity Boards calculating any dumping margins, from producer-specific information & Electricity Departments, published in except for the ‘‘cap’’ regarding scrap pertains directly to the subject May, 2002, by the Power & Energy steel offset. The Department allows merchandise. See, e.g., Notice of Final Division of the Planning Commission of scrap offsets, but only for the amount of Determination of Sales at Less Than the Government of India. We applied the scrap actually sold or reused. See Fair Value: Pure Magnesium in the average tariff rate for all industries, Bulk Aspirin and accompanying Issues Granular Form from The People’s as in prior reviews. and Decision Memorandum at Comment Republic of China, 66 FR 49345 (5) We valued truck transportation 13. It is also the Department’s practice (September 27, 2001), and expenses for direct materials, packing to grant offsets for recoveries/by- accompanying Issues and Decision materials, and coal from the suppliers of products which are re-entered into the Memorandum at Comment 3. However, the inputs to the factory producing production process. See Notice of Final when the Department and the parties subject merchandise utilizing the rate Determination of Sales at Less Than are unable to obtain surrogate used by the Department in Bulk Aspirin. Fair Value: Antidumping Duty information for valuing overhead, Huarong reported production ‘‘caps’’ Investigation of Steel Concrete SG&A, and profit that pertains to for use in determining certain factor Reinforcing Bars from The People’s manufacturers of identical or input amounts. A production ‘‘cap’’ is Republic of China, 66 FR 33522 (June comparable merchandise, the an estimate of the amount of factor 22, 2001) and the accompanying Issues Department must rely upon surrogate input the company used to make the and Decision Memorandum at Comment information derived from broader product in question. Huarong reported 5. industry groupings. See Notice of Final ‘‘caps’’ for steel billets, the steel scrap Results of New Shipper Review: offset, unskilled labor, skilled labor, and In the January 22, 2003 supplemental Petroleum Wax Candles from the unskilled packing labor. questionnaire, the Department requested People’s Republic of China, 67 FR 41395 The Department has accepted ‘‘caps’’ Huarong to calculate the scrap offset by (June 18, 2002), and accompanying in the past only when the ‘‘caps’’ were dividing the actual amount of scrap sold Issues and Decision Memorandum, at found to reasonably reflect actual during the POR by the total POR Comment 6. consumption, and has rejected them production of subject merchandise. In the present review, neither the when found to be otherwise. See Huarong, in its February 4, 2003 petitioner nor the respondent have Natural Bristle Paintbrushes and Brush response, stated that while it did have placed any financial statements on the Heads from the People’s Republic of sales of steel scrap during the POR, it record. Moreover, the Department has China; Final Review Results of did not record sales of scrap according been unable to locate financial Antidumping Review, 64 FR 27506 (May to subject and non-subject merchandise. statements specific to hand tools 20, 1999) (Natural Bristle Paintbrushes). In addition, Huarong stated that it did producers in India. Therefore, the In Natural Bristle Paintbrushes, at not reintroduce any internally-generated Department is using broader financial verification, the respondent attempted scrap steel into the production of data from the RBI Bulletin. See, e.g., to duplicate reported ‘‘cap’’ figures, but subject merchandise. See Huarong’s Notice of Final Determination of Sales did not succeed. The respondent October 23, 2002, section D at Less Than Fair Value: Non-Malleable asserted that the figures were derived supplemental questionnaire response at Cast Iron Pipe Fittings from the People’s from a standard cost system, but this 3. Since Huarong did not report the Republic of China, 68 FR 7765 system was not explained to the scrap offset using its actual sales of (February 18, 2003) and the verifiers, and the Department finally scrap, nor attempt to do so through accompanying Issues and Decision rejected the ‘‘caps.’’ See Natural Bristle allocating such sales to subject Memorandum at Comment 4; Final Paintbrushes, 64 FR at 27514. Similarly, merchandise or by using any other Results of Antidumping New Shipper while the Department has found reasonable methodology, we have Review: Potassium Permanganate from reported ‘‘caps’’ reasonable in past preliminarily determined to not grant the People’s Republic of China, 66 FR segments of this proceeding, the this offset to Huarong. 46775 (September 7, 2001), and the Department also found that there were Preliminary Results of Review accompanying Issues and Decision discrepancies between the reported Memorandum, at Comment 20; Final ‘‘cap’’ amounts and the figures As a result of our review, we Results and Partial Rescission of presented at verification of the preliminarily determine that the Antidumping Duty Administrative information submitted during the 1997– following weighted-average margin Review and Determination Not To 1998 administrative review. Because the exists for the period February 1, 2001, Revoke in Part: Heavy Forged Hand Department could not deduce how the through January 31, 2002:

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Manufacturer/exporter Time period Margin (percent)

Shandong Huarong Machinery Company Bars/Wedges ...... 2/1/01–1/31/02 34.56

The Department will disclose to questionnaire response, we will instruct Dated: February 28, 2003. parties to this proceeding the customs to assess antidumping duties at Faryar Shirzad, calculations performed in reaching the cash deposit rate in effect on the Assistant Secretary for Import these preliminary results within 10 days date of the entry. The Department will Administration. of the date of announcement of these issue appraisement instructions directly [FR Doc. 03–5299 Filed 3–5–03; 8:45 am] preliminary review results. An to Customs upon the completion of the BILLING CODE 3510–DS–P interested party may request a hearing final results of this administrative within 30 days of publication of the review. preliminary results. See 19 CFR DEPARTMENT OF COMMERCE 351.310(c). Interested parties may Cash Deposit Requirements submit written comments (case briefs), International Trade Administration The following deposit requirements in accordance with 19 CFR [A–570–851] 351.310(c)(1)(ii), and rebuttal comments will be effective upon publication of the (rebuttal briefs), which must be limited final results of this administrative Certain Preserved Mushrooms from to issues raised in the case briefs in review for all shipments of bars and the People’s Republic of China: accordance with 19 CFR 351.309(d). wedges from the PRC entered, or Preliminary Results and Partial Parties who submit arguments are withdrawn from warehouse, for Rescission of Fourth New Shipper requested to submit with the argument consumption on or after the publication Review and Preliminary Results of (1) a statement of the issue, (2) a brief date of this notice, as provided for by Third Antidumping Duty Administrative summary of the argument, and (3) a section 751(a)(1) of the Act: (1) The cash Review deposit rate for bars and wedges table of authorities. Further, the AGENCY: Import Administration, Department requests that parties exported by Huarong will be the rate International Trade Administration, submitting written comments provide established in the final results of this Department of Commerce. the Department with a diskette administrative review; (2) for companies ACTION: Notice of preliminary results containing the public version of those previously found to be entitled to a and partial rescission of fourth new comments. We will issue subsequently company-specific rate, the cash deposit shipper review and preliminary results a memorandum identifying the date of rate for bars/wedges will continue to be of third antidumping duty a hearing, if one is requested, and the the company-specific rate published for administrative review. deadlines for submitting case and the most recent period reviewed; (3) for rebuttal briefs. all other PRC exporters of bars/wedges SUMMARY: The Department of Commerce The final results of this review shall from the PRC, the cash deposit rate will is concurrently conducting the fourth be the basis for the assessment of be the following PRC country-wide rate: new shipper review and third antidumping duties on entries of 47.88 percent; and (4) the cash deposit administrative review of the merchandise covered by these reviews rate for non-PRC exporters of bars/ antidumping duty order on certain and for future deposits of estimated wedges from the PRC who do not have preserved mushrooms from the People’s duties. Republic of China covering the period their own rate will be the rate applicable February 1, 2001, through January 31, Duty Assessment Rates to the PRC supplier of the exporter. 2002. The new shipper review covers Upon completion of this These deposit requirements, when three exporters. We have preliminarily administrative review, the Department imposed, shall remain in effect until determined that one of those exporters will determine, and the U.S. Customs publication of the final results of the has not made sales at less than normal Service (Customs) shall assess, next administrative review. value. For the other two exporters, we antidumping duties on all appropriate Notification to Interested Parties have preliminarily determined that one entries. In accordance with 19 CFR of them failed to demonstrate that its 351.212(b)(1), we will calculate This notice serves as a preliminary reported sale was a bona fide sale, while importer-specific per-unit duty reminder to importers of their the other failed to demonstrate its assessment rates based on the ratio of responsibility under § 351.402(f)(2) of entitlement to a new shipper review. the total amount of the dumping duties the Department’s regulations to file a Thus, we are preliminarily rescinding calculated for the examined sales to the certificate regarding the reimbursement the review with respect to them. The total quantity of those same sales. These of antidumping duties prior to administrative review covers four importer-specific rates will be assessed liquidation of the relevant entries exporters. We have preliminarily uniformly on all entries of each during this review period. Failure to determined that sales have been made importer that were made during the comply with this requirement could below normal value with respect to all POR. In accordance with 19 CFR result in the Secretary’s presumption of these exporters. If these preliminary 351.106 (c)(2), we will instruct Customs that reimbursement of antidumping results are adopted in our final results to liquidate without regard to duties occurred and the subsequent of this review, we will instruct the U.S. antidumping duties any entries for Customs Service to assess antidumping assessment of double antidumping which the importer-specific assessment duties on all appropriate entries. rate is de minimis, i.e., less than 0.5 duties. Interested parties are invited to percent ad valorem. For all shipments of We are issuing and publishing this comment on these preliminary results. bars/wedges from the PRC exported by determination in accordance with We will issue the final results no later Huarong and imported by entities not sections 751(a)(1) and 777(i)(1) of the than 120 days from the date of identified by Huarong in its Act. publication of this notice.

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EFFECTIVE DATE: March 6, 2003. review concurrently with the From July 23 through July 29, 2002, FOR FURTHER INFORMATION CONTACT: administrative review. the Department issued Green Fresh, Brian Smith or Davina Hashmi, Import On March 20, 2002, the Department Shantou Hongda, Shenxian Dongxing, Administration, International Trade initiated an administrative review and Zhangzhou Jingxiang a Administration, U.S. Department of covering the companies listed in the supplemental questionnaire. Commerce, 14th Street and Constitution petitioner’s February 28, 2002, request. From July 23, through August 26, Avenue, NW., Washington, DC 20230; (See Initiation of Antidumping and 2002, the respondents submitted their telephone: (202) 482–1766 or (202) 482– Countervailing Duty Administrative responses to the Department’s 0984, respectively. Reviews, 67 FR 14696, 14698 (March 27, supplemental questionnaire. SUPPLEMENTARY INFORMATION: 2002).) On August 16, 2002, the Department On March 29, 2002, the Department published in the Federal Register a Background initiated a new shipper review of notice of postponement of the On February 19, 1999, the Department Guangxi Yulin, Shenzhen Qunxingyuan, preliminary results until no later than published in the Federal Register an and Zhangzhou Jingxiang. (See Certain February 28, 2003 (67 FR 53565). amended final determination and Preserved Mushrooms from the People’s On August 20, 2002, the Department antidumping duty order on certain Republic of China: Initiation of New rescinded the administrative review preserved mushrooms from the People’s Shipper Antidumping Duty Review, 67 with respect to China Processed, Republic of China (‘‘PRC’’) (64 FR 8308). FR 16088 (April 4, 2002).) Compania Envasadora del Atlantico, On February 1, 2002, the Department On April 16, 2002, we issued a and Raoping Xingyu. (See Certain published a notice advising of the questionnaire to each PRC company Preserved Mushrooms from the People’s opportunity to request an administrative listed in the above-referenced initiation Republic of China: Notice of Partial review of the antidumping duty order notices. Rescission of Antidumping Duty on certain preserved mushrooms from On May 2, 2002, the Department Administrative Review, 67 FR 53914 the PRC (67 FR 4945). On February 28, provided the parties an opportunity to (August 20, 2002).) 2002, the Department received timely submit publicly available information From August 20 through August 23, requests from Gerber Food (Yunnan) (‘‘PAI’’) for consideration in these 2002, the Department issued Gerber, Co., Ltd. (‘‘Gerber’’) and Green Fresh preliminary results. Shenzhen Qunxingyuan, and Foods (Zhangzhou) Co., Ltd. (‘‘Green On May 21, 2002, the respondent Zhangzhou Jingxiang a second Fresh’’) for an administrative review Compania Envasadora del Atlantico supplemental questionnaire. pursuant to 19 CFR 351.213(b). indicated that it had no shipments of From September 3 through 6, 2002, On February 27 and 28, 2002, the the subject merchandise to the United the Department issued verification Department received timely requests States during the period of review outlines to Guangxi Yulin, Shenxian from Guangxi Yulin Oriental Food Co., (‘‘POR’’). Dongxing, Shenzhen Qunxingyuan, and Ltd. (‘‘Guangxi Yulin’’), Shenzhen From May 23 through June 7, 2002, Zhangzhou Jingxiang. Qunxingyuan Trading Co., Ltd. China Processed, Gerber, Green Fresh, From September 4 through 11, 2002, (‘‘Shenzhen Qunxingyuan’’), and Shantou Hongda, Shenxian Dongxing, Gerber, Shenzhen Qunxingyuan, and Zhangzhou Jingxiang Foods Co., Ltd. Guangxi Yulin, Shenzhen Qunxingyuan, Zhangzhou Jingxiang submitted their (‘‘Zhangzhou Jingxiang’’) for a new and Zhangzhou Jingxiang submitted responses to the Department’s second shipper review in accordance with 19 CFR 351.214(c). their responses to the Department’s supplemental questionnaire. On February 28, 2002, the petitioner 1 antidumping duty questionnaire. On September 6, 2002, Gerber, Green requested an administrative review On June 11, 2002, the petitioner Fresh, Zhangzhou Jingxiang, and the pursuant to 19 CFR 351.213(b) of 7 requested an extension until July 9, petitioner submitted PAI for use in companies 2 which it claimed were 2002, to withdraw any request for valuing the factors of production. producers and/or exporters of the review of companies listed in its The Department conducted subject merchandise. Two of these February 28, 2002, communication, verification of the responses of Guangxi seven companies also requested a which the Department granted on June Yulin, Shenxian Dongxing, Shenzhen review. 21, 2002. Qunxingyuan, and Zhangzhou Jingxiang From March 6 through 28, 2002, From June 14 through August 23, during the period September 16, Guangxi Yulin, Shenzhen Qunxingyuan, 2002, the petitioner submitted through 25, 2002. From October 21 and Zhangzhou Jingxiang all agreed to comments on the questionnaire through November 8, 2002, the waive the time limits applicable to the responses provided by Gerber, Green Department issued verification reports new shipper review and to permit the Fresh, Guangxi Yulin, and Shenzhen for these companies. Department to conduct the new shipper Qunxingyuan. On November 12, 2002, the From June 28 through July 15, 2002, Department issued Shantou Hongda a 1 The petitioner is the Coalition for Fair Preserved the Department issued China Processed, second supplemental questionnaire and Mushroom Trade which includes the American Gerber, Guangxi Yulin, and Shenzhen received this company’s response on Mushroom Institute and the following domestic Qunxingyuan a supplemental November 26, 2002. companies: L.K. Bowman, Inc., Modern Mushroom Farms, Inc., Monterey Mushrooms, Inc., Mount questionnaire. On November 22, 2002, the Laurel Canning Corp., Mushrooms Canning On July 9, 2002, the petitioner Department issued Gerber a third Company, Southwood Farms, Sunny Dell Foods, withdrew its request for an supplemental questionnaire and Green Inc., and United Canning Corp. administrative review of China Fresh a second supplemental 2 The petitioner’s request included the following questionnaire. Both companies companies: (1) China Processed Food Import & Processed, Compania Envasadora del Export Company (‘‘China Processed’’), (2) Shantou Atlantico, and Raoping Xingyu. On July submitted their responses on December Hongda Industrial General Corporation (‘‘Shantou 10, 2002, the petitioner requested an 23, 2002. Hongda’’); (3) Shenxian Dongxing Foods Co., Ltd. extension of time until August 9, 2002, From December 16, 2002, through (‘‘Shenxian Dongxing’’); (4) Gerber; (5) Green Fresh; (6) Raoping Xingyu Foods Co., Ltd. (‘‘Raoping to submit factual information in this January 2, 2003, the Department issued Xingyu’’); and (7) Compania Envasadora Del case, which the Department granted on verification outlines to Gerber, Green Atlantico. July 12, 2002. Fresh, and Shantou Hongda.

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On February 5, 2003, Gerber and 2003.10.0127, 2003.10.0131, determining which entity or entities Green Fresh submitted comments on the 2003.10.0137, 2003.10.0143, own it. Furthermore, Zhangzhou petitioner’s September 6, 2002, PAI 2003.10.0147, 2003.10.0153 and Jingxiang was unable to explain whether submission and additional PAI. This 0711.51.0000 of the Harmonized Tariff or not its owner was affiliated with any PAI submission was untimely filed for Schedule of the United States 4 (‘‘HTS’’). PRC exporters or producers of the consideration in the preliminary results. Although the HTSUS subheadings are subject merchandise. Specifically, in its However, pursuant to 19 CFR provided for convenience and customs Section A response, Zhangzhou 351.301(c)(3)(ii), we will consider the purposes, the written description of the Jingxiang stated that it is an entity information contained in this scope of this order is dispositive. wholly owned by a single U.S. citizen. submission in the final results. However, our examination at Period of Reviews The Department conducted verification of Zhangzhou Jingxiang’s verification of the responses of Gerber, The period of reviews (‘‘POR’’) is bank account records indicated that the Green Fresh, and Shantou Hongda February 1, 2001, through January 31, entire investment of Zhangzhou during the period January 9, through 25, 2002. Jingxiang’s capital was provided to it by 2003. From February 12 through 14, Verification two U.S. importers of its merchandise, 2003, the Department issued the neither of which was the U.S. citizen verification reports for these companies. As provided in section 782(i)(2) of the which Zhangzhou Jingxiang claimed In February 2003, the petitioner Act, we verified information provided was its owner. Although Zhangzhou submitted pre-preliminary results by each respondent. We used standard Jingxiang continued to maintain at comments on the data provided by all verification procedures, including on- verification that it was not owned by respondents in these reviews. site inspection of the manufacturers’ either U.S. importer, it could not and exporters’ facilities, and Scope of Order substantiate with certainty which examination of relevant sales and entity(ies) owned it and the affiliations The products covered by this order financial records. Our verification of that entity(ies). Moreover, Zhangzhou are certain preserved mushrooms results are outlined in the verification Jingxiang was unable to provide whether imported whole, sliced, diced, report for each company. (For further documentation from either U.S. or as stems and pieces. The preserved discussion, see October 21, 2002, importer which showed each entity’s mushrooms covered under this order are Verification Report for Zhangzhou ownership holdings, despite the the species Agaricus bisporus and Jingxiang in the Fourth Antidumping Department’s request for this Agaricus bitorquis. ‘‘Preserved Duty New Shipper Review (‘‘Zhangzhou information. (See Zhangzhou Jingxiang mushrooms’’ refer to mushrooms that Jingxiang Verification Report’’); October Verification Report at 3–5.) have been prepared or preserved by 24, 2002, Verification Report for In order to qualify for a new shipper cleaning, blanching, and sometimes Shenxian Dongxing in the Third review under 19 CFR 351.214, a slicing or cutting. These mushrooms are Antidumping Duty Administrative company must certify, among other then packed and heated in containers Review (‘‘Shenxian Dongxing things, that since the investigation was including, but not limited to, cans or Verification Report’’); the November 8, initiated, it has never been affiliated glass jars in a suitable liquid medium, 2002, Verification Reports for Guangxi with any exporter or producer who including, but not limited to, water, Yulin and Shenzhen Qunxingyuan in exported the subject merchandise to the brine, butter or butter sauce. Preserved the Fourth Antidumping Duty New United States during the period of mushrooms may be imported whole, Shipper Review (‘‘Guangxi Yulin investigation, including those not sliced, diced, or as stems and pieces. Verification Report’’ and ‘‘Shenzhen individually examined during the Included within the scope of this order Qunxingyuan Verification Report’’); the investigation. (See 19 CFR are ‘‘brined’’ mushrooms, which are February 12, 2003, Verification Reports 351.214(2)(iii)(A).) Given that presalted and packed in a heavy salt for Gerber and Green Fresh in the Third Zhangzhou Jingxiang could not solution to provisionally preserve them Antidumping Duty Administrative substantiate its affiliations and, thus, its for further processing. Review (‘‘Gerber Verification Report’’ certification (which it provided prior to Excluded from the scope of this order and ‘‘Green Fresh Verification Report’’); the initiation of the new shipper review) are the following: (1) All other species and the February 14, 2003, Verification at verification, it is not entitled to a new of mushroom, including straw Report for Shantou Hongda in the Third shipper review. Therefore, we are mushrooms; (2) all fresh and chilled Antidumping Duty Administrative preliminarily rescinding this review mushrooms, including ‘‘refrigerated’’ or Review (‘‘Shantou Hongda Verification with respect to Zhangzhou Jingxiang. ‘‘quick blanched mushrooms’; (3) dried Report’’).) In addition, we are preliminarily mushrooms; (4) frozen mushrooms; and Partial Rescission of New Shipper rescinding the administrative review (5) ‘‘marinated,’’ ‘‘acidified’’ or Review with respect to Shenzhen Qunxingyuan ‘‘pickled’’ mushrooms, which are because we find that it did not have a prepared or preserved by means of For the reasons stated below, we are bona fide sale during the POR, as vinegar or acetic acid, but may contain preliminarily rescinding, in part, the required by 19 CFR 351.214(b)(2)(iv)(C), oil or other additives.3 new shipper review with respect to based on the totality of the facts on the The merchandise subject to this order Zhangzhou Jingxiang and Shenzhen record. Specifically, we find that the is classifiable under subheadings: Qunxingyuan. price of its single reported sale was Specifically, we are preliminarily aberrationally high relative to the 3 On June 19, 2000, the Department affirmed that rescinding the new shipper review with average unit value of all comparable ‘‘marinated,’’ ‘‘acidified,’’ or ‘‘pickled’’ mushrooms respect to Zhangzhou Jingxiang because canned mushroom imports from the containing less than 0.5 percent acetic acid are it failed to provide us with the within the scope of the Antidumping Duty Order. PRC during the POR and during the See ‘‘Recommendation Memorandum—Final Ruling necessary documentation for month in which the sale was made. of Request by Tak Fat, et al. for Exclusion of Certain Moreover, we find that the price for the Marinated, Acidified Mushrooms from the Scope of 4 Prior to January 1, 2002, the HTS subheadings the Antidumping Duty Order on Certain Preserved were as follows: 2003.10.0027, 2003.10.0031, can size included in this sale was not Mushrooms from the People’s Republic of China,’’ 2003.10.0037, 2003.10.0043, 2003.10.0047, within the reasonable range of prices dated June 19, 2000. 2003.10.0053, and 0711.90.4000. charged by other PRC exporters under

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review for the comparable goods sold based on the data reported by each of deducted from the U.S. price for margin during the POR. them, adjusted to reflect verification calculation purposes). While the We also find that the quantity of the findings, which it will also use to erroneous quantity figures at issue sale was abnormally low when calculate importer-specific assessment cannot be fixed using accurate, verified compared to the average size of rates. However, because the Department information on the record, the U.S. gross shipments of comparable goods during is concerned that antidumping duty unit price data reported by this the month in which the sale was made cash deposits may be evaded again in respondent is reliable and can be used and to the range of shipment sizes of subsequent PORs, as they were in this for purposes of calculating sales-specific other PRC exporters under review for POR, the Department has determined it margins for the respondent. comparable merchandise. In addition, appropriate to assign to each of these Furthermore, the errors at issue are because Shenzhen Qunxingyuan had no respondents for future cash deposit isolated in nature and not so egregious other sales of any merchandise, subject purposes the higher of the rates that the Department is unable to use the or non-subject, during or after the POR calculated for each of them in this rest of Shenxian Dongxing’s reported and therefore, apparently, had no review. U.S. sales data, after adjustments per commercial income during this period, verification findings, for purposes of Facts Available we believe the legitimacy of this calculating a margin. However, to do so, company as a viable commercial entity For the reasons stated below, we have we must resort to facts available because is called into question. In addition, the preliminarily applied partial adverse we are unable to calculate a weighted- conflicting information we obtained facts available to Shenxian Dongxing. average margin by using this data. We regarding the address of its U.S. Section 776(a) of the Act provides therefore find that, pursuant to section customer and other information that, if an interested party withholds 776(a)(2)(D) of the Act, the use of facts regarding another respondent relating to information that has been requested by available is warranted in this segment of this customer’s reported address, leads the Department, fails to provide such the proceeding with respect to Shenxian us to question the legitimacy of the U.S. information in a timely manner or in the Dongxing. customer, and as a result, the bona fides form or manner requested (subject to Section 776(b) of the Act provides of the reported sale itself. For all of sections 782(c)(1) and 782(e) of the Act), that, if the Department finds that an these reasons, the Department significantly impedes a proceeding interested party ‘‘has failed to cooperate preliminarily finds Shenzhen under the antidumping statute, or by not acting to the best of its ability to Qunxingyuan’s sole U.S. sale during the provides information which cannot be comply with a request for information,’’ POR was not a bona fide commercial verified, the Department shall use, the Department may use information transaction. (See February 28, 2003, subject to section 782(d) of the Act, facts that is adverse to the interests of that memorandum from Office Director to otherwise available in reaching the party as facts otherwise available. the Acting Deputy Assistant Secretary applicable determination. Section 776(b) of the Act further for further discussion.) In this review, the Department issued provides that, in selecting from among Shenxian Dongxing a supplemental the facts available, the Department may Relationship Between Two questionnaire, requesting it to address employ adverse inferences against an Respondents discrepancies in data provided in its interested party if that party failed to Two respondents in this review, original questionnaire response and to cooperate by not acting to the best of its Gerber and Green Fresh, revealed to the provide secondary worksheets which ability to comply with requests for Department on the record that they had demonstrated how it derived the information. See also ‘‘Statement of a business relationship during the POR. numerical data contained in its Administrative Action’’ accompanying The Department finds that this response. As a result of conducting the URAA, H. Rep. No. 103–316, 870 relationship resulted in evasion of verification of the data submitted by (1994) (‘‘SAA’’). As stated above, antidumping cash deposits during the Shenxian Dongxing, we discovered at Shenxian Dongxing had the ability to POR. (See February 28, 2003, verification that Shenxian Dongxing report accurate quantity information for memorandum from Office Director to provided the Department with each of its U.S. sales reported in its the Acting Deputy Assistant Secretary erroneous quantity (i.e., drained weight response, and it admitted that it failed for further discussion.) and packed weight) data for all of its to do so. We therefore find that As stated in Tung Mung Development U.S. sales during the POR which were Shenxian Dongxing failed to cooperate v. United States, 219 F. Supp. 2d 1333 reported in its U.S. sales listing to the best of its ability in this segment (CIT August 22, 2002), appeal entered contained in its Section C response. At of the proceeding. As a result, pursuant (‘‘Tung Mung v. United States’’), the verification, Shenxian Dongxing to section 776(b) of the Act, we have Department has a duty to apply its law acknowledged these errors and made an adverse inference with respect in a manner as to prevent the evasion explained that they were data to Shenxian Dongxing. of antidumping duties: ‘‘The ITA has processing errors. (See Shenxian In this segment of the proceeding, in been vested with authority to administer Dongxing Verification Report at 3, and accordance with Department practice the antidumping laws in accordance 15 through 17.) (see, e.g., Brake Rotors from the People’s with the legislative intent. To this end, The sales and packed quantity figures Republic of China: Preliminary Results the ITA has a certain amount of reported for each U.S. sale are derived and Preliminary Partial Rescission of discretion [to act] * * * with the from data contained in the sales invoice the Fifth Antidumping Duty purpose in mind of preventing the (i.e., number of cartons, number of cans, Administrative Review and Preliminary intentional evasion or circumvention of and per-unit drained weight) and Results of the Seventh New Shipper the antidumping duty law. Mitsubishi packing list (e.g., net per-unit weight). Review, 68 FR 1031, 1033 (January 8, Elec. Corp. v. United States, 12 C.I.T. The sales quantity data is critical for 2003)), as adverse facts available, we 1025, 1046, 700 F. Supp. 538, 555 purposes of calculating the weighted- have assigned to exports of the subject (1988), aff’d 898 F.2d 1577 (Fed. Cir. average dumping margin, and the merchandise by Shenxian Dongxing a 1990).’’ The Department has packed weight quantity is important for rate of 68.45 percent, which is the preliminarily calculated an individual purposes of calculating the respondent’s highest rate calculated for any of its U.S. margin for each of these respondents U.S. movement expenses (which are sales transactions. The Department’s

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practice when selecting an adverse rate Than Fair Value: Creatine Monohydrate memorandum to the file which places from among the possible sources of from the People’s Republic of China, 64 the above-referenced laws on the record information is to ensure that the margin FR 71104, 71105 (December 20, 1999) of this proceeding.) is sufficiently adverse ‘‘as to effectuate (where the respondent was wholly As in prior cases, we have analyzed the purpose of the facts available rule to owned by persons located in Hong these laws and have found them to induce a respondent to provide the Kong).) establish sufficiently an absence of de Department with complete and accurate Three respondents, Green Fresh, jure control of joint ventures and information in a timely manner.’’ (See Guangxi Yulin, and Shenxian Dongxing companies owned by ‘‘all of the people’’ Final Determination of Sales at Less are joint ventures of PRC entities. The absent proof on the record to the than Fair Value: Static Random Access other respondent, Shantou Hongda, is contrary. (See, e.g., Final Determination Memory Semiconductors from Taiwan, owned by all of the people. Thus, a of Sales at Less Than Fair Value: 63 FR 8909, 8932, (February 23, 1998). separate-rates analysis is necessary to Furfuryl Alcohol From the People’s We believe that the rate assigned is determine whether each of these four Republic of China (‘‘Furfuryl Alcohol’’) appropriate in this regard. Furthermore, exporters is independent from 60 FR 22544 (May 8, 1995), and we are not applying total adverse facts government control. (See Notice of Final Preliminary Determination of Sales at available because, pursuant to section Determination of Sales at Less Than Less Than Fair Value: Certain Partial- 782(e) of the Act, we believe that we Fair Value: Bicycles From the People’s Extension Steel Drawer Slides With may derive from the record sufficient Republic of China (‘‘Bicycles’’), 61 FR Rollers From the People’s Republic of information to calculate an appropriate 56570 (April 30, 1996).) To establish China, 60 FR 29571 (June 5, 1995).) whether a firm is sufficiently adverse facts available margin. Thus, we 2. De Facto Control are applying as partial adverse facts independent in its export activities from available, a rate of 68.45 percent to government control to be entitled to a As stated in previous cases, there is Shenxian Dongxing. separate rate, the Department utilizes a some evidence that certain enactments test arising from the Final of the PRC central government have not Separate Rates Determination of Sales at Less Than been implemented uniformly among In proceedings involving NME Fair Value: Sparklers from the People’s different sectors and/or jurisdictions in countries, the Department begins with a Republic of China, 56 FR 20588 (May 6, the PRC. (See Silicon Carbide, 59 FR at rebuttable presumption that all 1991) (‘‘Sparklers’’), and amplified in 22587, and Furfuryl Alcohol, 60 FR at companies within the country are the Final Determination of Sales at Less 22544.) Therefore, the Department has subject to government control and thus Than Fair Value: Silicon Carbide from determined that an analysis of de facto should be assessed a single antidumping the People’s Republic of China, 59 FR control is critical in determining duty deposit rate (i.e., a PRC-wide rate). 22585 (May 2, 1994) (‘‘Silicon whether the respondents are, in fact, One respondent in these reviews, Carbide’’). Under the separate-rates subject to a degree of governmental Gerber, is wholly owned by persons criteria, the Department assigns separate control which would preclude the located outside the PRC. Thus, for rates in NME cases only if the Department from assigning separate Gerber, because we have no evidence respondent can demonstrate the absence rates. indicating that it is under the control of of both de jure and de facto The Department typically considers the PRC government, a separate rates governmental control over export four factors in evaluating whether each analysis is not necessary to determine activities. respondent is subject to de facto whether it is independent from governmental control of its export government control. (See Brake Rotors 1. De Jure Control functions: (1) Whether the export prices from the People’s Republic of China: Green Fresh, Guangxi Yulin, Shantou are set by, or subject to the approval of, Final Results and Partial Rescission of Hongda, and Shenxian Dongxing have a governmental authority; (2) whether Fifth New Shipper Review, 66 FR 44331 placed on the administrative record the the respondent has authority to (August 23, 2001), which cites to Brake following document to demonstrate negotiate and sign contracts and other Rotors from the People’s Republic of absence of de jure control: the 1994 agreements; (3) whether the respondent China: Preliminary Results and Partial ‘‘Foreign Trade Law of the People’s has autonomy from the government in Rescission of the Fifth New Shipper Republic of China.’’ In other cases making decisions regarding the Review and Rescission of the Third involving products from the PRC, selection of management; and (4) Antidumping Duty Administrative respondents have submitted the whether the respondent retains the Review, 66 FR 29080 (May 29, 2001) following additional documents to proceeds of its export sales and makes (where the respondent was wholly demonstrate absence of de jure control, independent decisions regarding the owned by a U.S. registered company); and the Department has placed these disposition of profits or financing of Brake Rotors from the People’s Republic additional documents on the record as losses. (See Silicon Carbide, 59 at 22587 of China: Final Results and Partial well: the ‘‘Law of the People’s Republic and Furfuryl Alcohol, 60 FR at 22545.) Rescission of Fourth New Shipper of China on Industrial Enterprises Green Fresh, Guangxi Yulin, Shantou Review and Rescission of Third Owned by the Whole People,’’ adopted Hongda, and Shenxian Dongxing each Antidumping Duty Administrative on April 13, 1988 (‘‘the Industrial has asserted the following: (1) Each Review, 66 FR 27063 (May 16, 2001), Enterprises Law’’); ‘‘The Enterprise establishes its own export prices; (2) which cites to Brake Rotors from the Legal Person Registration each negotiates contracts without People’s Republic of China: Preliminary Administrative Regulations,’’ guidance from any governmental Results and Partial Rescission of the promulgated on June 13, 1988; the 1990 entities or organizations; (3) each makes Fourth New Shipper Review and ‘‘Regulation Governing Rural its own personnel decisions; and (4) Rescission of the Third Antidumping Collectively-Owned Enterprises of each retains the proceeds of its export Duty Administrative Review, 66 FR PRC’’; and the 1992 ‘‘Regulations for sales, uses profits according to its 1303, 1306 (January 8, 2001) (where the Transformation of Operational business needs, and has the authority to respondent was wholly owned by a Mechanisms of State-Owned Industrial sell its assets and to obtain loans. company located in Hong Kong); Notice Enterprises’’ (‘‘Business Operation Additionally, each respondent’s of Final Determination of Sales at Less Provisions’’). (See February 28, 2003, questionnaire responses indicate that its

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pricing during the POR does not suggest administrative and new shipper reviews handling charges. (See Guangxi Yulin coordination among exporters. Based on of stainless steel bar from India. Because Verification Report at 11, 12.) our verification findings, there is a international freight for all U.S. sales D. Shantou Hongda sufficient basis to preliminarily was provided by a market-economy determine that each of these service provider and paid for in U.S. For Shantou Hongda, we calculated respondents has demonstrated a de dollars, we used the data reported by export price based on packed, FOB facto absence of government control of Gerber for this charge, adjusted to reflect foreign port prices to the first its export functions and is entitled to a verification findings. Also, as a result of unaffiliated purchaser in the United separate rate. Consequently, we have our verification findings, we revised the States. Where appropriate, we made preliminarily determined that each of reported U.S. brokerage and handling deductions from the starting price (gross these respondents has met the criteria expenses, and added an amount for unit price) for foreign inland freight, for the application of separate rates. harbor maintenance fees and brokerage, and handling expenses in accordance with section 772(c) of the Fair Value Comparisons merchandise processing fees to the reported U.S. duty expense amounts. Act. Because foreign inland freight, To determine whether sales of the (See Gerber Verification Report at 3, and brokerage, and handling charges were subject merchandise by each respondent 11–15.) provided by PRC service providers or to the United States were made at less- paid for in renminbi, we based these than-fair-value (‘‘LTFV’’), we compared B. Green Fresh charges on surrogate rates from India. (See discussion above for further the export price to the normal value, as For Green Fresh, we calculated export described in the ‘‘Export Price’’ and details.) Because Shantou Hongda price based on packed, CNF foreign port ‘‘Normal Value’’ sections of this notice, reported its U.S. prices net of ocean prices to the first unaffiliated purchaser below. freight (which was separately invoiced in the United States. Where appropriate, and paid in full by its U.S. customers), Export Price we made deductions from the starting we did not deduct an amount for this price (gross unit price) for foreign We used export price methodology in expense from the starting price. Based inland freight, brokerage, and handling accordance with section 772(a) of the on our verification findings, we revised charges in the PRC, and international Act because the subject merchandise (1) the gross unit prices reported for freight in accordance with section was sold by the exporter outside the certain transactions as explained further United States directly to an unaffiliated 772(c) of the Act. (See discussion above below; (2) the reported distance from purchaser in the United States prior to for further details.) Because foreign Shantou Hongda’s supplier factory, Lixi importation and constructed export inland freight, foreign brokerage, and Cannery (‘‘Lixi’’), to the port of price was not otherwise indicated. We handling charges were provided by PRC exportation; and (3) the reported per- made the following company-specific service providers or paid for in a unit packed weight based on data adjustments: renminbi, we based those charges on contained in the Shantou Hongda’s surrogate rates from India. Because A. Gerber response. international freight for all U.S. sales Our verification findings revealed that For Gerber, we calculated export price was provided by a market-economy the gross unit prices reported for based on packed, delivered prices to the service provider and paid for in U.S. numerous sales examined at verification first unaffiliated purchaser in the United dollars, we used Green Fresh’s reported (i.e., 15 of 43 examined sales States. Where appropriate, we made data for this charge. Based on our observations) were incorrect. Therefore, deductions from the starting price (gross verification findings, we revised the we corrected these prices to reflect the unit price) for foreign inland freight and reported distance from Green Fresh’s actual prices verified. In so doing, we international freight (which included supplier factory, Zhangzhou Longhai Lu found that certain prices were under- ocean freight), foreign and U.S. Bao Food Co., Ltd. (‘‘Lu Bao’’), to the reported and other prices were over- brokerage and handling expenses, and port of exportation. (See Green Fresh reported. Because Shantou Hongda did U.S. duty expenses in accordance with Verification Report at 13.) not explain at verification the nature of section 772(c) of the Act. Because C. Guangxi Yulin these price reporting errors, and given foreign inland freight, foreign brokerage, the number of transactions in our and handling charges were provided by For Guangxi Yulin, we calculated verification sample we found to be PRC service providers or paid for in export price based on packed, FOB affected by price reporting errors, we renminbi, we based these charges on foreign port prices to the first determined that it is appropriate, surrogate rates from India. (See unaffiliated purchaser in the United pursuant to section 776(a)(2)(D) of the ‘‘Surrogate Country’’ section below for States. Where appropriate, we made Act, to apply facts available to the prices further discussion of our surrogate deductions from the starting price (gross of the remaining U.S. transactions. country selection). To value foreign unit price) for foreign inland freight, Without reliable price information on inland trucking charges, we used a brokerage, and handling charges in the record, the Department cannot November 1999 average truck freight accordance with section 772(c) of the accurately calculate an antidumping value based on price quotes from Indian Act. Because foreign inland freight, rate for Shantou Hongda. Thus, the trucking companies. (See Brake Rotors brokerage and, handling charges were Department must apply facts available. from the People’s Republic of China: provided by PRC service providers or Because Shantou Hongda did not Preliminary Results and Preliminary paid for in renminbi, we based these provide the Department with an Partial Rescission of Fifth Antidumping charges on surrogate rates from India. accurate list of U.S. prices, it did not Duty Administrative Review and (See discussion above for further cooperate to the best of its ability in Preliminary Results of the Seventh New details.) Based on our verification responding to the Department’s request Shipper Review, 68 FR 1031, 1035 findings, we revised the reported for information. Thus, pursuant to (January 8, 2003).) To value foreign distance from Yulin to the port of 776(b) of the Act, the Department is brokerage and handling expenses, we exportation and the per-unit packed instructed to apply an inference which relied on public information reported in weight amount used to calculate foreign is adverse to the uncooperative party. the 1998–1999 antidumping duty inland freight and brokerage and Accordingly, as partial adverse facts

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available, we have adjusted the reported Dongxing Verification Report at 14 Certain respondents failed to provide U.S. gross prices of the sales we did not through 17.) the Department with requested examine at verification by deducting an information. Gerber purchased its cow Normal Value amount equal to the weighted-average manure and straw from multiple difference between the over-reported A. Non-Market Economy Status suppliers, but did not report a weighted- and actual prices for the sales we did average distance for those two inputs examine at verification. (See Shantou In every case conducted by the although such information was Hongda Verification Report at 13, 15.) Department involving the PRC, the PRC expressly requested by the Department. has been treated as an NME country. Green Fresh purchased its labels from E. Shenxian Dongxing Pursuant to section 771(18)(C)(i) of the multiple suppliers, but failed to report Act, any determination that a foreign For Shenxian Dongxing, we a weighted-average distance for those country is an NME country shall remain calculated export price based on labels, again, despite the Department’s in effect until revoked by the packed, FOB foreign port prices to the request for such information. For certain administering authority. (See Tapered first unaffiliated purchaser in the United inputs (i.e., salt and brined mushrooms), Roller Bearings and Parts Thereof, States. Where appropriate, we made Shantou Hongda made errors in Finished and Unfinished, From the deductions from the starting price (gross reporting the total consumption of these People’s Republic of China: Preliminary unit price) for foreign inland freight, inputs and failed to state any reason for Results 2001–2002 Administrative brokerage, and handling expenses in those errors. In addition, Shantou Review and Partial Rescission of accordance with section 772(c) of the Hongda did not report the distance for Review, 68 FR 7500 (February 14, Act. Because foreign inland freight, brined and fresh mushrooms which it 2003).) None of the parties to this brokerage, and handling expenses were purchased from suppliers during the proceeding has contested such provided by PRC service providers or POR. treatment. Accordingly, we calculated paid for in renminbi, we based these In each of these instances, the normal value in accordance with section charges on surrogate rates from India. respondent failed to cooperate by not 773(c) of the Act, which applies to NME (See discussion above for further acting to the best of its ability to comply countries. details.) Because Shenxian Dongxing with a request for information, or to reported its U.S. prices net of ocean B. Surrogate Country explain the reason for the missing freight (which was separately invoiced information, within the meaning of and paid in full by its U.S. customers), Section 773(c)(4) of the Act requires section 776(b) of the Act. Without the we did not deduct an amount for this the Department to value an NME requested information, the Department expense from the starting price. Based producer’s factors of production, to the must use facts available on the record, on our verification findings, we revised extent possible, in one or more market pursuant to section 776(a)(2)(D) of the (1) the gross unit prices reported for economy countries that (1) are at a level Act. Because the Department finds that certain U.S. sales transactions; and (2) of economic development comparable to these parties did not act to the best of the reported per-unit packed weight that of the NME country, and (2) are their abilities in providing us with the based on data contained in the record. significant producers of comparable necessary information, section 776(b) of (See Shenxian Dongxing Verification merchandise. India is among the the Act directs us to apply an adverse Report at 14–17.) The error in the countries comparable to the PRC in inference in these reviews. Accordingly, reported per-unit packed weight for terms of overall economic development. for Gerber, we have used the furthest each U.S. sales transaction was a result (See April 30, 2002, Memorandum from distance reported for any supplier of of inaccurate application of Shenxian the Office of Policy to the Team Leader.) cow manure and straw to value freight Dongxing’s packed weight calculation In addition, based on publicly available for these inputs, respectively. For Green methodology. As stated in the ‘‘Facts information placed on the record, India Fresh, we used the furthest distance Available’’ section above, without is a significant producer of the subject reported for labels to value freight. For reliable packing weight information on merchandise. Accordingly, we selected Shantou Hongda, we increased the the record, the Department cannot India as the surrogate country for reported per-unit factor amounts for accurately calculate actual U.S. purposes of valuing the factors of brined mushrooms and salt by the movement expenses for each reported production because it meets the percentage difference between the U.S. sales transaction. Thus, the Department’s criteria for surrogate reported and verified consumption Department, pursuant to section country selection. amounts for each input. In addition, we 776(a)(2)(D) of the Act, must apply facts C. Factors of Production have used the furthest distance reported available. Because Shenxian Dongxing for any of its suppliers of brined/fresh did not provide the Department with In accordance with section 773(c) of mushrooms to value freight. accurate per-unit packed weights for the Act, we calculated normal value Based on our verification findings at each of its U.S. sales, it did not based on the factors of production Gerber, we also revised the following cooperate to the best of its ability in which included, but were not limited to: data in Gerber’s response: (1) The responding to the Department’s request (A) Hours of labor required; (B) reported per-unit can, lid, label, and for information. Thus, pursuant to quantities of raw materials employed; processing labor amount for 4-ounce 776(b) of the Act, the Department is (C) amounts of energy and other utilities cans; (2) the reported per-unit lid and instructed to apply an inference which consumed; and (D) representative processing labor amount for 68-ounce is adverse to the uncooperative party. capital costs, including depreciation. cans; and (3) the distances from Gerber Accordingly, as partial adverse facts We used the factors reported by the five to its coal supplier. In addition, we available, we have used the highest respondents which produced the subject valued the freight for salt and citric reported per-unit packed weight figure merchandise they exported to the based on the supplier distances we reported for Shenxian Dongxing’s United States during the POR. To obtained for those inputs at verification. smallest can size to calculate the U.S. calculate normal value, we multiplied (See Gerber Verification Report at 20, movement expenses for all its sales of the reported unit factor quantities by 22, and 24, and February 28, 2003, the subject merchandise . (See Shenxian publicly available Indian values. Memorandum from Case Analyst to the

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File re: Calculation Memorandum for reported per-unit label amounts for 4- magnesium sulfate, calcium carbonate, the Preliminary Results.) and 68-ounce cans; (6) the distances and formaldehyde, we used an average Based on our verification findings at from Shenxian Dongxing to 10 of its price based on April 2001–December Green Fresh, we also revised the suppliers situated in three locations. 2001 data contained in Monthly following data in Green Fresh’s (See Shenxian Dongxing Verification Statistics of the Foreign Trade of India response: (1) The reported per-unit fresh Report at 21–23 and 25–26, and (‘‘Monthly Statistics’’) and February mushroom, coal (used for growing February 28, 2003, Memorandum from 2001–January 2002 data contained in mushrooms), salt, and processing labor Case Analyst to the File re: Calculation Chemical Weekly. For those prices amounts for all can sizes; (2) the per- Memorandum for the Preliminary obtained from Chemical Weekly, where unit amounts for four materials reported Results.) appropriate, we also deducted an for one canned mushroom product code; The Department’s selection of the amount for excise taxes based on the and (3) the per-unit amounts for two surrogate values applied in this methodology applied to values from the materials reported for another canned determination was based on the quality, same source in a prior review involving mushroom product code. (See Green specificity, and contemporaneity of the the subject merchandise from the PRC. Fresh Verification Report at 3, 20, and data. As appropriate, we adjusted input (See page 4 of the May 31, 2001, 23, and February 28, 2003, prices to make them delivered prices. Preliminary Results Valuation Memorandum from Case Analyst to the For those values not contemporaneous Memorandum for the Preliminary File re: Calculation Memorandum for with the POR and quoted in a foreign Results of New Shipper Review: Certain the Preliminary Results.) currency or in U.S. dollars, we adjusted Preserved Mushrooms from the People’s Based on our verification findings at for inflation using wholesale price Republic of China, 66 FR 30695 (June 7, Shantou Hongda, we also revised the indices (‘‘WPIs’’) published in the 2001) which has been placed on the following data in Shantou Hongda’s International Monetary Fund’s record of this proceeding.) To value response: (1) The salt, straw, and labor International Financial Statistics. calcium phosphate, we used a December factors used to preserve the mushrooms To value fresh mushrooms, we used 1999 value from Chemical Market at the farm; (2) the reported per-unit an average price based on data Reporter. Although the value from coal amount for 4, 8, and 16-ounce cans; contained in the 2000–2001 financial Chemical Market Reporter was in U.S. (3) the reported per-unit label and can/ report of Premier Explosives Ltd. dollars, it was not contemporaneous lid amounts for 16-ounce cans; and (4) (‘‘Premier’’). For those respondents with the POR. Therefore, we inflated the distances from Shantou Hongda’s which purchased brined mushrooms, this value to the POR using WPIs. supplier, Lixi, to its suppliers for coal, we also used the fresh mushroom price To value gypsum, we used an average spawn, citric acid, and labels. (See to value brined mushrooms because we price based on April 2001–December Shantou Hongda Verification Report at were unable to obtain publicly available 2001 data contained in Monthly 7–13, and February 28, 2003, information which contained a price for Statistics and data contained in Flex Memorandum from Case Analyst to the brined mushrooms. Foods’ 2000–2001 financial report. To File re: Calculation Memorandum for To value manure, spawn, and straw, value potassium super, we used an the Preliminary Results.) we used an average price based on data average price based on February 2001– Based on our verification findings at contained in the 2000–2001 financial January 2002 data contained in Guangxi Yulin, we revised the following report of Flex Foods Ltd. (‘‘Flex Foods’’) Chemical Weekly. To value carbamide data in Guangxi Yulin’s response: (1) and the 2001–2002 financial report of (i.e., urea), we used an average price The reported per-unit factor amounts for Agro Dutch Foods, Ltd. (‘‘Agro Dutch’’) based on February 2001–January 2002 all material, energy, and labor inputs (i.e., two Indian producers of the subject data contained in Chemical Weekly and based on revisions to the total POR merchandise). For those respondents data contained in Flex Foods’ 2000– mushroom production quantity figure;5 which used mother spawn, we also used 2001 financial report. To value cotton, and (2) the distances from Guangxi the average spawn price to value mother tin plate scrap, copper conducting wire, Yulin to its coal, tin plate, citric acid, spawn because we were unable to and copper wire scrap, can and lid salt, label suppliers. (See Guangxi Yulin obtain publicly available information scrap, and coal, we used April 2001– Verification Report at 1, 11, and 26, and which contained a price for mother December 2001 average import values February 28, 2003, Memorandum from spawn. To value grain and super from Monthly Statistics. We also added Case Analyst to the File re: Calculation phosphate, we used price data an amount for loading and additional Memorandum for the Preliminary contained in Flex Foods’ 2000–2001 transportation charges associated with Results.) financial report because no such data delivering coal to the factory based on Based on our verification findings at was available from the other financial June 1999 Indian price data contained Shenxian Dongxing, we also revised the reports on the record. To value tin cans in the periodical Business Line. To following data in Shenxian Dongxing’s and lids, we used price data from the value tin plate, we used an average price response: (1) The reported per-unit May 21, 2001, public version response based on April 2001–December 2001 potassium super, calcium carbonate, submitted by Agro Dutch in the 2nd data contained in Monthly Statistics and electricity, direct and packing labor antidumping duty administrative review data contained in Agro Dutch’s 2001– amounts for all can sizes; (2) the of certain preserved mushrooms from 2002 financial report. reported per-unit copper wire amounts India, and derived per-unit can-size- We did not value water separately for 4- and 16-ounce cans; (3) the specific prices using the petitioner’s because, consistent with our reported per-unit tin plate amount for 8- methodology contained in its September methodology used in prior reviews of ounce cans; (4) the reported per-unit 6, 2002, PAI submission. To value salt, the subject merchandise, we believe that copper wire, tin plate, and glue amounts we used price data contained in the the costs for water are included as for 62- and 68-ounce cans; (5) the 1998–1999 financial report of Weikfield factory overhead in the Indian financial Agro Products Ltd. (i.e., another Indian statements used to calculate factory 5 In order to derive the per-unit consumption producer of the subject merchandise) overhead, selling, general, and amount for each factor of production as reported in because no such data was available from administrative (‘‘SG&A’’) expenses, and the Section D response, the respondent divided the total POR factor consumption of that input over the the other financial reports on the record. profit. (See Certain Preserved total POR production weight. To value citric acid, boric acid, Mushrooms from the People’s Republic

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of China: Final Results of Third New To value corrugated cartons, labels, rebuttal briefs. Case briefs from Shipper Review and Final Results and paper, separators, tape, and glue we interested parties may be submitted not Partial Rescission of Second used April 2001–December 2001 later than March 31, 2003, pursuant to Antidumping Duty Administrative average import values from Monthly 19 CFR 351.309(c). Rebuttal briefs, Review, 67 FR 46173 (July 12, 2002) and Statistics. limited to issues raised in the case accompanying Issues and Decision briefs, will be due not later than April Preliminary Results of the Review Memorandum at Comment 6.) 7, 2003, pursuant to 19 CFR 351.309(d). To value electricity, we used the We preliminarily determine that the Parties who submit case briefs or 2000–2001 ‘‘revised estimate’’ average following margins exist for the rebuttal briefs in this proceeding are rate for industrial consumption as following exporters under review during requested to submit with each argument published in the Annual Report (2001– the period February 1, 2001, through (1) a statement of the issue and (2) a 02) on the Working of State Electricity January 31, 2002: brief summary of the argument. Parties Boards & Electricity Departments by the are also encouraged to provide a Manufacturer/producer/ Margin summary of the arguments not to exceed Government of India’s Planning exporter percent Commission (Power & Energy Division). five pages and a table of statutes, We valued labor based on a Gerber Food (Yunnan) Co., regulations, and cases cited. regression-based wage rate, in Ltd ...... * 46.41 The Department will issue the final accordance with 19 CFR 351.408(c)(3). Green Fresh Foods results of these administrative and new To value factory overhead, selling, (Zhangzhou) Co., Ltd...... * 46.41 shipper reviews, including the results of general, and administrative (‘‘SG&A’’) Guangxi Yulin Oriental Food its analysis of issues raised in any such Co., Ltd (‘‘Guangxi Yulin’’) .. 0.00 written briefs or at the hearing, if held, expenses, and profit, we used the Guangxi Yulin / all others ...... 198.63 audited 2001–2002 financial data of not later than 120 days after the date of Shantou Hongda Industrial publication of this notice. Agro Dutch and the audited 2000–2001 General Corporation ...... 118.51 financial data of Flex Foods and Shenxian Dongxing Foods Assessment Rates Himalya International Ltd. (‘‘Himalya’’), Co., Ltd ...... ** 68.45 PRC-Wide Rate ...... 198.63 The Department shall determine, and all Indian producers of the subject the Customs Service shall assess, merchandise. In addition, we did not * The margin calculated for Gerber is 1.17 antidumping duties on all appropriate use two other Indian sources of data: the percent and that calculated for Green Fresh is entries. For assessment purposes, we do 46.41 percent. However, for cash deposit pur- 2000–2001 fiscal data obtained for not have the actual entered value for Premier or the 1999–2000 fiscal data poses, as explained above, we have assigned to Gerber and Green Fresh the higher of the any respondent (with the exception of obtained for Hindustan Lever Limited, rates calculated for each of them during the Gerber) for which we calculated a because although each company POR. For assessment purposes, we intend to margin because they are not the produces the subject merchandise, the calculate importer-specific duty assessment importers of record for the subject subject merchandise is but one of rates based on the data provided by these two companies, as adjusted to reflect verification merchandise. For these respondents for several products which they produce findings. which we do not have entered value and is not the major product produced ** For assessment purposes, we intend to information, we intend to calculate by either company. instruct the Customs Service to apply Shenxian Dongxing’s margin to the entered individual customer-specific assessment Where appropriate, we did not value of the subject merchandise from rates by aggregating the dumping include in the surrogate overhead and Shenxian Dongxing during the POR, irrespec- margins calculated for all of the U.S. SG&A calculations the excise duty tive of importer, because we were not able to sales examined and dividing that amount listed in the financial reports. rely on its reported quantity amounts in order to calculate importer-specific assessment rates amount by the total quantity of the sales We made certain adjustments to the on a per-unit basis, as indicated in the ‘‘As- examined. ratios calculated as a result of sessment Rates’’ section below. (See ‘‘Facts Although Gerber was the importer of reclassifying certain expenses contained Available’’ section above for further record, it did not provide entered value in the financial reports. For a further discussion.) data for each of its reported U.S. sales. discussion of the adjustments made, see We will disclose the calculations used Therefore, because we do not have the Preliminary Results Valuation in our analysis to parties to this entered value information for all of its Memorandum. proceeding within five days of the date U.S. sales, we will also calculate for this All inputs were shipped by truck. of publication of this notice. Any respondent importer-specific duty Therefore, to value PRC inland freight, interested party may request a hearing assessment rates for the subject we used a November 1999 average truck within 30 days of publication of this merchandise by aggregating the freight value based on price quotes from notice. If requested, a hearing will be dumping margins calculated for the Indian trucking companies. held 44 days after the date of examined sales and dividing this In accordance with the decision of the publication of this notice, or the first amount by the total entered quantity of Court of Appeals for the Federal Circuit work day thereafter. the sales examined. To determine in Sigma Corp. v. United States, 117 F. Interested parties who wish to request whether the duty assessment rates were 3d 1401 (Fed. Cir. 1997), we revised our a hearing or to participate if one is de minimis (i.e., less than 0.50 percent), methodology for calculating source-to- requested, must submit a written in accordance with the requirement set factory surrogate freight for those request to the Assistant Secretary for forth in 19 CFR 351.106(c)(2), we will material inputs that are valued based on Import Administration, Room B–099, calculate importer-or customer-specific CIF import values in the surrogate within 30 days of the date of publication ad valorem ratios based on export country. Therefore, we have added to of this notice. Requests should contain: prices. CIF surrogate values from India a (1) the party’s name, address, and The Department will issue surrogate freight cost using the shorter telephone number; (2) the number of appropriate appraisement instructions of the reported distances from either the participants; and (3) a list of issues to be directly to the Customs Service upon closest PRC port of importation to the discussed. See 19 CFR 351.310(c). completion of these reviews. We will factory, or from the domestic supplier to Issues raised in the hearing will be instruct the Customs Service to assess the factory on an input-specific basis. limited to those raised in case briefs and antidumping duties on all appropriate

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entries covered by this review if any supplier of that exporter. These Resources, National Marine Fisheries importer- or customer-specific requirements, when imposed, shall Service, 13th Floor, 1315 East-West assessment rate calculated in the final remain in effect until publication of the Hwy, Silver Spring, MD 20910. Please results of these reviews is above de final results of the next administrative mark the outside of the envelope with minimis (i.e., at or above 0.50 percent). review. ‘‘Comments on Gray Whale Analysis.’’ See 19 CFR 351.106(c)(1). For entries of Comments will not be accepted if Notification to Importers the subject merchandise during the POR submitted via e-mail or internet. from companies not subject to these This notice serves as a preliminary FOR FURTHER INFORMATION CONTACT: reviews, we will instruct the Customs reminder to importers of their Chris Yates, 301–713–2322. Service to liquidate them at the cash responsibility under 19 CFR SUPPLEMENTARY INFORMATION: At its deposit rate in effect at the time of entry. 351.402(f)(2) to file a certificate 2002 annual meeting, the International The final results of this review shall be regarding the reimbursement of Whaling Commission (IWC) approved a the basis for the assessment of antidumping duties prior to liquidation quota of 620 gray whales for an antidumping duties on entries of of the relevant entries during this aboriginal subsistence harvest for the merchandise covered by the final results review period. Failure to comply with years 2003 through 2007. The basis for of these reviews and for future deposits this requirement could result in the the quota was a joint request by the of estimated duties, where applicable. Secretary’s presumption that Russian Federation (for a total of 600 reimbursement of antidumping duties Cash Deposit Requirements whales) and the United States (for a occurred and the subsequent assessment total of 20 whales). The subsistence and Bonding will no longer be permitted of double antidumping duties. ceremonial needs of the Makah Indian to fulfill security requirements for These administrative and new shipper Tribe were the foundation of the United shipments from Guangxi Yulin of reviews and notice are in accordance States’ request to the IWC. certain preserved mushrooms from the with sections 751(a)(1), 751(a)(2)(B), and On December 20, 2002, the Ninth PRC entered, or withdrawn from 777(i)(1) of the Act and 19 CFR Circuit Court of Appeals reversed a warehouse, for consumption on or after 351.221(b). the publication date of the final results district court ruling that upheld NMFS’ of the new shipper review. Furthermore, Dated: February 28, 2003. issuance of a quota to the Makah Tribe the following cash deposit requirements Faryar Shirzad, to hunt a limited number of gray whales will be effective upon publication of the Assistant Secretary for Import for aboriginal subsistence purposes in final results of the new shipper review Administration. 2001 and 2002. See Anderson v. Evans, for all shipments from Guangxi Yulin of [FR Doc. 03–5301 Filed 3–5–03; 8:45 am] 314 F.3d 1006 (9th Cir. 2002). The subject merchandise entered, or BILLING CODE 3510–DS–P Federal Government is currently withdrawn from warehouse, for considering whether to request consumption on or after the publication rehearing of Anderson v. Evans. Subject date: (1) For subject merchandise DEPARTMENT OF COMMERCE to the outcome of a possible rehearing, manufactured and exported by Guangxi NMFS is preparing an EIS on the Yulin, we will require a cash deposit at National Oceanic and Atmospheric issuance of annual quotas to the Makah the rate established in the final results; Administration Tribe for a subsistence hunt on gray and (2) for subject merchandise [I.D. 022603D] whales for the years 2003 through 2007. exported by Guangxi Yulin but not NMFS is evaluating the following four manufactured by it, the cash deposit Marine Mammals; Notice of Intent to alternatives: will be the PRC countrywide rate (i.e., Prepare an Environmental Impact Alternative 1 - Grant the Makah Tribe 198.63 percent). Statement for Issuing Annual Gray a quota of 5 whales per year over 5 years The following deposit requirements Whale Subsistence Quotas to the though annual quotas with restrictions will be effective upon publication of the Makah Indian Tribe for the years 2003 that would allow a limited hunt on the final results of the antidumping through 2007 gray whale summer feeding aggregation administrative review for all shipments and limit the harvest to 20 landed AGENCY: of certain preserved mushrooms from National Marine Fisheries whales over 5 years. the PRC entered, or withdrawn from Service (NMFS), National Oceanic and Alternative 2 - Grant the Makah Tribe warehouse, for consumption on or after Atmospheric Administration (NOAA), a quota of 5 whales per year over 5 years the publication date, as provided by Commerce. through annual quotas with restrictions section 751(a)(1) of the Act: (1) The cash ACTION: Notice of intent to prepare an to target the hunt on migrating whales deposit rate for each respondent listed Environmental Impact Statement(EIS); and limit the harvest to 20 landed above will be the rate established in the request for written comments. whales over 5 years. final results; (2) the cash deposit rate for Alternative 3 - Grant the Makah Tribe SUMMARY: NMFS announces its PRC exporters who received a separate a quota of 5 whales per year over 5 years intention to prepare an EIS, in rate in a prior segment of the proceeding through annual quotas without time or accordance with the National and for whom there was no request for area restrictions. The hunt would be Environmental Policy Act, to assess the administrative review (e.g., China limited to 20 landed whales over 5 impacts of issuing annual subsistence Processed and Raoping Xingyu) will years. quotas for gray whales to the Makah continue to be the rate assigned in that Alternative 4 - (No Action) - Do not Tribe for the years 2003 through 2007. segment of the proceeding; (3) the cash grant the Makah Tribe a quota. deposit rate for the PRC NME entity NMFS solicits comments and (including Shenzhen Qunxingyuan and information to facilitate this analysis. Information Solicited Zhangzhou Jingxiang) will continue to DATES: Comments and information must To ensure that the review is be 198.63 percent; and (4) the cash be postmarked by April 21, 2003. comprehensive and based on the best deposit rate for non-PRC exporters of ADDRESSES: Written comments should available information, NMFS is subject merchandise from the PRC will be sent to Chief, Marine Mammal soliciting information and comments be the rate applicable to the PRC Division (F/PR2), Office of Protected from any interested party concerning

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the issuance of annual gray whale Affected Public: Business or other for- organizations that could be capable of quotas of 5 whales per year over 5 years profit. accepting responsibility and to the Makah Tribe for the years 2003 Frequency: On occasion. accountability for delivering the through 2007. NMFS is particularly Respondent’s Obligation: Required to capability with needed responsiveness, interested in any new information on obtain or retain benefits. and will recommend further steps to the affected environment or OMB Desk Officer: Ms. Jacqueline strengthen the joint structure ability to environmental consequences that has Zeiher. quickly integrate service-provided force become available since the last analysis Written comments and capabilities into effective joint forces. was completed. It is requested that data, recommendations on the proposed In accordance with Section 10(d) of information, and comments be information collection should be sent to the Federal Advisory Committee Act, accompanied by (1) supporting Ms. Zeiher at the Office of Management Public Law 92–463, as amended (5 documentation, and (2) the name, and Budget, Desk Officer for DoD, Room U.S.C. App. II), it has been determined address, andaffiliation of person 10235. New Executive Office Building, that these Defense Science Board Task submitting data. Following the issuance Washington, DC 20503. Force meetings concern matters listed in of the draft EIS NMFS will solicit DoD Clearance Officer: Mr. Robert 5 U.S.C. 552b(c)(1) and that, additional public input. Cushing. accordingly, these meetings will be Written requests for copies of the closed to the public. Dated: February 28, 2003. information collection proposal should Dated: February 28, 2003. Laurie K. Allen, be sent to Mr. Cushing, WHS/DIOR, Acting Director, Office of Protected 1215 Jefferson Davis Highway, Suite Patricia L. Toppings, Resources,National Marine Fisheries Service. 1204, Arlington, VA 22202–4302. Alternate OSD Federal Register Liaison [FR Doc. 03–5285 Filed 3–5–03; 8:45am] Officer, Department of Defense. Dated: February 28, 2003. BILLING CODE 3510–22–S [FR Doc. 03–5263 Filed 3–5–03; 8:45 am] Patricia L. Toppings, BILLING CODE 5001–08–M Alternate OSD Federal Register Liaison Officer, Department of Defense. DEPARTMENT OF DEFENSE [FR Doc. 03–5264 Filed 3–5–03; 8:45 am] DEPARTMENT OF DEFENSE Office of the Secretary BILLING CODE 5001–08–M Department of the Air Force Submission for OMB Review; Comment Request DEPARTMENT OF DEFENSE Privacy Act of 1974; System of Records ACTION: Notice. Office of the Secretary AGENCY: Department of the Air Force, The Department of Defense has Defense Science Board DoD. submitted to OMB for clearance, the ACTION: Notice to add a record system. following proposal for collection of AGENCY: Department of Defense. information under the provisions of the ACTION: Notice of Advisory Committee SUMMARY: The Department of the Air Paperwork Reduction Act (44 U.S.C. Meetings. Force proposes to add a system of chapter 35). records notice to its inventory of records SUMMARY: The Defense Science Board DATES: Consideration will be given to all systems subject to the Privacy Act of Task Force on Enabling Joint Force 1974 (5 U.S.C. 552a), as amended. comments received by April 7, 2003. Capabilities will tentatively meet in Title, Form Number, and OMB DATES: The actions will be effective on closed session on March 17, 2003, at Number: Department of Defense (DoD) April 7, 2003 unless comments are SAIC, 4001 N. Fairfax Drive, Arlington, Statement of Intent; AMC Form 207; received that would result in a contrary VA; April 17, 2003, at the U.S. Joint OMB Number 0701–0137. determination. Type of Request: Extension. Forces Command, Norfolk, VA; and May 20, 2003, at U.S. Strategic Command, ADDRESSES: Send comments to the Air Number of Respondents: 15. Force FOIA/Privacy Manager, AF–CIO/ Responses Per Respondent: 1. Offutt AFB, NE. This Task Force will review the current state of assigned P, 1155 Air Force Pentagon, Annual Responses: 15. Washington, DC 20330–1155. Average Burden Per Response: 20 responsibilities and accountability for hours. joint capabilities to quickly bring FOR FURTHER INFORMATION CONTACT: Mrs. Annual Burden Hours: 300. combat forces together and focus them Anne P. Rollins at (703) 601–4043. Needs and Uses: The Department of on joint objectives across a wide SUPPLEMENTARY INFORMATION: The Defense Air Carrier Survey and Analysis spectrum of possible contingencies and Department of the Air Force’s record Office (HQ AMC/DOB) is responsible for will help identify unfilled needs and system notices for records systems the assessment of a commercial air areas where assigned responsibility and subject to the Privacy Act of 1974 (5 carrier’s ability to provide quality, safe, accountability calls for further U.S.C. 552a), as amended, have been and reliable airlift to the Department of clarification and/or organizational published in the Federal Register and Defense. HQ AMC/DOB uses Air arrangements. are available from the address above. Mobility Command (AMC) Form 207 to This mission of the Defense Science The proposed system report, as acquire information needed to make a Board to advise the Secretary of Defense required by 5 U.S.C. 522a(r) of the determination if the commercial carriers and the Under Secretary of Defense for Privacy Act of 1974, as amended, was can support the Department of Defense. Acquisition, Technology & Logistics on submitted on February 25, 2003, to the Information is evaluated and used in the scientific and technical matters as they House Committee on Government approval process. Failure to respond affect the perceived needs of the Reform, the Senate Committee on renders the commercial air carrier Department of Defense. At these Governmental Affairs, and the Office of ineligible for contracts to provide air meetings, the Defense Science Board Management and Budget (OMB) carriers service to the Department of Task Force will identify specific pursuant to paragraph 4c of Appendix I Defense. characteristics and examples of to OMB Circular No. A–130, ‘‘Federal

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Agency Responsibilities for Maintaining appropriate public recognition to the RECORD ACCESS PROCEDURES: Records About Individuals,’’ dated employer for his or her support of Air Individuals seeking access to records February 8, 1996 (February 20, 1996, 61 Force programs and employee about themselves contained in this FR 6427). participation therein; and to provide system of records should log into the Dated: February 28, 2003. information regarding Air Force and Air system using the username and Reserve Component issues, plans, and Patricia L. Toppings, password they received when they operations and/or the involvement of initially registered. The web-based login Alternate OSD Federal Register Liaison employees in such activities. Officer, Department of Defense. screen provides information to retrieve To family members, political and forgotten passwords. F035 AF SAFPA D community leaders, and the news media Individuals can also address written for purposes of providing information inquiries to Your Guardians of Freedom, SYSTEM NAME: regarding Air Force and Air Reserve SAF/PA, 1690 AF Pentagon, Your Guardians of Freedom User Component issues, plans, and Washington, DC 20330–1690, or the Database. operations and/or the involvement of installation Public Affairs Officer. Air Force personnel, active or reserve, SYSTEM LOCATION: Official mailing addresses are published in such activities. as an appendix to the Air Force’s Doe Anderson Interactive, 620 W. The DoD Blanket Routine Uses’ that compilation of systems of records. Main Street, Louisville, KY 40202–2933. appear at the beginning of the Air Subsystems of the main system may Force’s compilation of systems of CONTESTING RECORD PROCEDURES: be located at the Public Affairs Offices records apply to this system. Individuals may log into the system at Air Force Bases, Air National Guard Policies and practices for storing, using the username and password they or Air Force Reserve or similar retrieving, accessing, retaining, and received when they initially registered installations to which an individual is disposing of records in the system: and alter the information about them assigned. STORAGE: contained in the system. Otherwise, the Air Force rules for CATEGORIES OF INDIVIDUALS COVERED BY THE Maintained on computers and accessing records and contesting SYSTEM: computer output products. contents and appealing initial Air Force personnel, Air Force RETRIEVABILITY: determinations are published in Air Reserve Command personnel, and Air Force Instruction 37–132, 32 CFR part National Guard personnel who Retrieved by individual’s name, unit 806b, or may be obtained from the voluntarily submit information into the and address. system manager. system. SAFEGUARDS: RECORD SOURCE CATEGORIES: CATEGORIES OF RECORDS IN THE SYSTEM: Records are accessed by person(s) responsible for servicing the record Information is obtained from the Information in the system includes, system in performance of their official individual. but is not limited to, to name, current duties, and by authorized personnel EXEMPTIONS CLAIMED FOR THE SYSTEM: grade, marital status, local address, who are properly screened and cleared name and address of spouse, parents or for need-to-know. Records in computer None. guardians, photographs, name and storage devices are protected by [FR Doc. 03–5268 Filed 3–5–03; 8:45 am] address of civilian employer. computer system software. BILLING CODE 5001–08–P

AUTHORITY FOR MAINTENANCE OF THE SYSTEM: RETENTION AND DISPOSAL: 10 U.S.C. 8013, Secretary of the Air Disposition pending (until the DEPARTMENT OF DEFENSE Force and E.O. 9397 (SSN). National Archives and Records Department of the Army PURPOSE(S): Administration disposition is approved, treat records as permanent). To provide an outreach program for Record of Decision (ROD)— commanders to communicate with SYSTEM MANAGER(S) AND ADDRESS: Destruction of Chemical Warfare families, civilian employers, educators, Director, Your Guardians of Freedom, Material at Blue Grass Army Depot, news media, and political and Office of the Secretary of the Air Force, Kentucky community leaders about the extensive Public Affairs, SAF/PA, 1690 AF role of airmen in the war on terrorism. Pentagon, Washington, DC 20330–1690. AGENCY: Department of the Army, DoD. ACTION: Record of Decision. ROUTINE USES OF RECORDS MAINTAINED IN THE NOTIFICATION PROCEDURE: SYSTEM, INCLUDING CATEGORIES OF USERS AND Individuals seeking to determine SUMMARY: This announces the THE PURPOSES OF SUCH USES: whether this system of records contains availability of the ROD to employ In addition to those disclosures information about themselves should chemical neutralization followed by generally permitted under 5 U.S.C. use the web-based login screen to supercritical water oxidation (SCWO) at 552a(b) of the Privacy Act, these records contact system administrators by e-mail, the Blue Grass Army Depot. The ROD or information contained therein may or should address written requests to documents the environmental analysis specifically be disclosed outside the Your Guardians of Freedom, SAF/PA, of the Defense Acquisition Executive DoD as a routine use pursuant to 5 1690 AF Pentagon, Washington, DC decision to employ chemical U.S.C. 552a(b)(3) as follows: 20330–1690. neutralization followed by SCWO. A To civilian employers of Air Reserve Inquiries about a subsystem should be variety of factors were considered in Component personnel for purposes of addressed to the Public Affairs Officer at making the technology selection providing information regarding the base or installation of the decision including, but not limited to, employer and employee rights, benefits, individual’s assignment. Official mission needs, cost, schedule, and obligations under the Uniformed mailing addresses are published as an environmental considerations, public Services Employment and appendix to the Air Force’s compilation concerns, and compliance with Reemployment Rights Act; to accord of systems of records. Chemical Weapons Convention.

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ADDRESSES: To obtain a copy of the 7, 2003 unless comments are received operating agencies, major commands, ROD, contact the Program Manger for which result in a contrary and the U.S. Army Military Historical Chemical Demilitarization, Public determination. Research Collection, Carlisle Barracks, Outreach and Information Office (Attn: ADDRESSES: Department of the Army, PA 17013–5000; U.S. Army Center of Mr. Mahall), Aberdeen Proving Ground, Freedom of Information/Privacy Act Military History, 103 3rd Street, Fort Maryland 21010–4005. Office, U.S. Army Records Management McNair Washington, DC 20318–5058; FOR FURTHER INFORMATION CONTACT: Mr. and Declassification Agency, Attn: U.S. Army Heritage and Education Gregory Mahall at (410) 436–1093, by TAPC–PDD–FP, 7798 Cissna Road, Center, 22 Ashburn Drive, Carlisle, PA far at (410) 436–5122, by mail at the Suite 205, Springfield, VA 22153–3166. 17013–5008. Official mailing addresses above listed address or by electronic are published as an appendix to the FOR FURTHER INFORMATION CONTACT: Ms. mail at Army’s compilation of systems of Janice Thornton at (703) 806–7137 / [email protected]. records notices. DSN 656–7137. SUPPLEMENTARY INFORMATION: In its ROD SUPPLEMENTARY INFORMATION: The CATEGORIES OF INDIVIDUALS COVERED BY THE of February 1988 (53 FR 5816, February Department of the Army systems of SYSTEM: 26, 1988) for the Final Programmatic records notices subject to the Privacy Military and civilian personnel Environmental Impact Statement (EIS) Act of 1974, (5 U.S.C. 552a), as associated with the Army; individuals on the Chemical Stockpile Disposal amended, have been published in the who offer historically significant items Program (CSDP), the Department of the Federal Register and are available from or gifts of money to the Army Museum Army selected on-site disposal by the address above. System; and individuals who respond to incineration at all eight chemical The specific changes to the records the Army’s Vietnam War Era Service munition storage sites located within system being amended are set forth Survey Questionnaire. the continental United States as the below followed by the notice, as CATEGORIES OF RECORDS IN THE SYSTEM: method by which it will destroy its amended, published in its entirety. The Biographical resumes and personal lethal chemical stockpile. The proposed amendments are not within Department of the Army published a working files of U.S. Army personnel; the purview of subsection (r) of the Notice of Intent in the Federal Register personal papers donated by individuals Privacy Act of 1974, (5 U.S.C. 552a), as (65 FR 75677–78, December 4, 2000) for historical research; photographs of amended, which requires the which provided notice that, pursuant to Army personages; requests for historical submission of a new or altered system the National Environmental Policy Act documents regarding U.S. Army report. (NEPA) and implementing regulations, activities and responses thereto; copy of it was preparing a draft site-specific EIS Dated: February 28, 2003. donor’s proffer of gift agreement and for the Blue Grass Army Depot. On May Patricia L. Toppings, correspondence with donor regarding 30, 2002, the Army published a Draft Alternate OSD Federal Register Liaison status and/or location of donation(s). EIS to assess the site-specific health and Officer, Department of Defense. Questionnaires and associated environmental impacts of historical items received by the U.S. demilitarization of the chemical warfare A0870–5 DAMH Army Military History Institute under material stored at the Blue Grass Army SYSTEM NAME: its Veteran Survey Program. Associated Depot. The Final EIS was published on Army History Files (June 12, 2002, 67 historical items may include, but not December 27, 2002. All public FR 40280). limited to, audiotapes, books, camp/unit comments received during the NEPA newspapers, diaries, documents, films, process have been considered in making CHANGES: memoirs, and artifacts. this decision. * * * * * AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Dated: February 28, 2003. SYSTEM LOCATION: 10 U.S.C. 3013, Secretary of the Army; Raymond J. Fatz, Replace the current ‘22 Ashburn Army Regulation 870–5, Military Deputy Assistant Secretary of the Army Drive’ address with ‘U.S. Army Heritage History: Responsibilities, Policies and (Environment, Safety and Occupational Procedures; and 16 U.S.C. 470, National Health), OASA (I&E). and Education Center, 22 Ashburn Drive, Carlisle, PA 17013–5008.’ Historic Preservation Act. [FR Doc. 03–5252 Filed 3–5–03; 8:45 am] BILLING CODE 3710–08–M * * * * * PURPOSE(S): SYSTEM MANAGER(S) AND ADDRESS: To provide a record of donations and contributions of historical property to Delete second address and replace DEPARTMENT OF DEFENSE U.S. Army Museums and historical with ‘Director, U.S. Army Heritage and holdings; to enable Army museums and Education Center, 22 Ashburn Drive, Department of the Army historical holdings to provide upon Carlisle, PA 17013–5008.’ request by the donor or donor’s heirs, Privacy Act of 1974; System of * * * * * Records information concerning the status/ A0870–5 DAMH location of his/her donation; to enable AGENCY: Department of the Army, DoD. the Army to establish title to the ACTION: Notice to amend a system of SYSTEM NAME: property. records. Army History Files. Vietnam War Era Service Survey Questionnaires will be used to SUMMARY: The Department of the Army SYSTEM LOCATION: document recollections and opinions of is amending a system of records notices U.S. Army Center of Military History, veterans for historical studies of the U.S. in its existing inventory of records Headquarters, Department of the Army, Army. systems subject to the Privacy Act of Washington, DC 20310–0200. Routine uses of records maintained in 1974, (5 U.S.C. 552a), as amended. Decentralized segments exist at the system, including categories of users DATES: This proposed action will be historical offices at Headquarters, and the purposes of such uses: In effective without further notice on April Department of the Army and field addition to those disclosures generally

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permitted under 5 U.S.C. 552a(b) of the RECORD ACCESS PROCEDURES: ADDRESSES: Army Systems of Records Privacy Act, these records or Individuals seeking access to Notices Manager, Department of Army information contained therein may information about themselves contained Freedom of Information and Privacy specifically be disclosed outside the in this system should address written Acts Office, 7798 Cissna Road, Suite DoD as a routine use pursuant to 5 inquiries to the U.S. Army Center of 205, Springfield, VA 22153–3166. U.S.C. 552a(b)(3) as follows: Military History, 103 3rd Street, Fort FOR FURTHER INFORMATION CONTACT: Ms. Information from this system may be McNair Washington, DC 20318–5058. Janice Thornton at (703) 806–7137. disclosed to a municipal corporation, a Individual should provide their full soldier’s monument association, a State name, address and signature. SUPPLEMENTARY INFORMATION: The museum, an incorporated museum or Department of the Army systems of CONTESTING RECORD PROCEDURES: exhibition operated and maintained for records notices subject to the Privacy educational purposes only, a post of the The Army’s rules for accessing Act of 1974, (5 U.S.C. 552a), as Veterans of Foreign Wars or the records, and for contesting contents and amended, have been published in the American Legion, or other Federal appealing initial agency determinations Federal Register and are available from museums upon donation or transfer of are contained in Army Regulation 340– the address above. the historical property to one of those 21; 32 CFR part 505; or may be obtained The proposed system report, as organizations. from the system manager. required by 5 U.S.C. 552a(r) of the The DoD ‘Blanket Routine Uses’ set RECORD SOURCE CATEGORIES: Privacy Act of 1974, as amended, was forth at the beginning of the Army’s From the individual, his/her Army submitted on February 25, 2003, to the compilation of systems of records record, official Army documents, public House Committee on Government notices also apply to this system. records. Reform, the Senate Committee on Policies and practices for storing, Governmental Affairs, and the Office of retrieving, accessing, retaining, and EXEMPTIONS CLAIMED FOR THE SYSTEM: Management and Budget (OMB) disposing of records in the system: None. pursuant to paragraph 4c of Appendix I [FR Doc. 03–5266 Filed 3–5–03; 8:45 am] to OMB Circular No. A–130, ‘‘Federal STORAGE: BILLING CODE 5001–08–P Agency Responsibilities for Maintaining Paper records in file folders, Records About Individuals,’’ dated photographs, and on electronic media. February 8, 1996 (February 20, 1996, 61 Artifacts will be stored in a secure area. DEPARTMENT OF DEFENSE FR 6427). Dated: February 28, 2003. RETRIEVABILITY: Department of the Army By individual’s name. Patricia L. Toppings, Privacy Act of 1974; System of Alternate OSD Federal Register Liaison SAFEGUARDS: Records Officer, Department of Defense. Records are maintained in secured AAFES 0703.07 areas accessible only to persons having AGENCY: Department of the Army, DoD. ACTION: Notice to alter a system of need therefore in the performance of SYSTEM NAME: official duties. records. AAFES Employee Pay System RETENTION AND DISPOSAL: SUMMARY: The Department of the Army Records (August 9, 1996, 61 FR 41588). Permanent. Some historical material is altering a system of records notice in and photographs are retired to the its existing inventory of record systems CHANGES: Washington National Records Center subject to the Privacy Act of 1974, (5 * * * * * when no longer needed; other such U.S.C. 552a), as amended. The alteration material is transferred to the Military consists of expanding the category of CATEGORIES OF INDIVIDUALS COVERED BY THE History Research Collection at Carlisle individuals and records covered, adding SYSTEM: Barracks, PA for preservation. Inquiries a new purpose, and adding two new Delete entry and replace with about historical events or persons, and routine uses. The new routine uses ‘‘Individuals paid by the Army and Air responses thereto, are destroyed when being added are below: Force Exchange System (AAFES). These no longer needed. ‘‘To former spouses, who receive include, but are not limited to, civilian payments under 10 U.S.C. 1408, for employees, contractors, family SYSTEM MANAGER(S) AND ADDRESS: purposes of providing information on members, and spouse or former Chief, U.S. Army Center of Military how their payment was calculated to spouse.’’ History, 103 3rd Street, Fort McNair, include what items were deducted from Washington, DC 20318–5058. the member’s gross pay and the dollar CATEGORIES OF RECORDS IN THE SYSTEM: Director, U.S. Army Heritage and amount for each deduction.’’ ‘‘To Federal, State, or local child Add to entry ‘‘leave accrual date; Education Center, 22 Ashburn Drive, retirement participation data; job code Carlisle, PA 17013–5008. support agencies, in response to their written requests for information and title; employment category; pay NOTIFICATION PROCEDURE: regarding the gross and disposable pay plan; wage schedule; and base hourly Individuals seeking to determine of civilian employees, for purposes of rate; court orders affecting pay; and whether information about themselves assisting the agencies in the discharge of similar related documents.’’ is contained in this system should their responsibilities under Federal and * * * * * address written inquiries to the U.S. State law.’’ PURPOSE(S): Army Center of Military History, 103 DATES: This proposed action will be 3rd Street, Fort McNair, Washington, DC effective without further notice on April Revise the first paragraph by adding 20318–5058. 7, 2003, unless comments are received ‘‘to process payment in compliance with Individual should provide their full which result in a contrary court orders (i.e. Qualifying Domestic name, address and signature. determination. Relations Order).’’

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ROUTINE USES OF RECORDS MAINTAINED IN THE control and working paper files; disposition of debt claims against the SYSTEM, INCLUDING CATEGORIES OF USERS AND unemployment compensation data Army and Air Force Exchange Service. THE PURPOSES OF SUCH USES: requests and responses; reports of To former spouses, who receive Add two new paragraphs to entry ‘‘To retirement fund deductions; payments under 10 U.S.C. 1408, for former spouses, who receive payments management narrative and statistical purposes of providing information on under 10 U.S.C. 1408, for purposes of reports relating to pay, leave, and how their payment was calculated to providing information on how their retirement, leave accrual date; include what items were deducted from payment was calculated to include what retirement participation data; job code the member’s gross pay and the dollar items were deducted from the member’s and title; employment category; pay amount for each deduction. gross pay and the dollar amount for plan; wage schedule; and base hourly To Federal, State, or local child each deduction.’’ rate; court orders affecting pay; and support agencies, in response to their ‘‘To Federal, State, or local child similar related documents. written requests for information support agencies, in response to their regarding the gross and disposable pay written requests for information AUTHORITY FOR MAINTENANCE OF THE SYSTEM: of civilian employees, for purposes of regarding the gross and disposable pay 10 U.S.C. 3013, Secretary of the Army; assisting the agencies in the discharge of of civilian employees, for purposes of 10 U.S.C. 8013, Secretary of the Air their responsibilities under Federal and assisting the agencies in the discharge of Force; 42 U.S.C. 659, Consent by United State law. their responsibilities under Federal and States to income withholding, To private collection agencies for State law.’’ garnishment, and similar proceeding for collection action when the Army and * * * * * enforcement of child support and Air Force Exchange Service has alimony obligations; 31 CFR 285.11, exhausted its internal collection efforts. RETENTION AND DISPOSAL: Administrative Wage Garnishment; DoD The DoD ‘‘Blanket Routine Uses’’ set Delete entry and replace with Directive 7000.14–R, DoD Financial forth at the beginning of the Army’s ‘‘Destroy after 6 years following Management Regulation; Army compilation of systems of records termination of AAFES’ involvement. Regulation 60–20, Army and Air Force notices apply to this system. Payroll Registers and Qualifying Exchange Service Operating Policies; Domestic Relations Order records are and E.O. 9397 (SSN). DISCLOSURE TO CONSUMER REPORTING permanent records.’’ AGENCIES: PURPOSE(S): * * * * * Disclosures pursuant to 5 U.S.C. To provide basis for computing 552a(b)(12) may be made from this AAFES 0703.07 civilian pay entitlements; to record system to ‘‘consumer reporting history of pay transactions, leave agencies’’ as defined in the Fair Credit SYSTEM NAME: accrued and taken, bonds due and Reporting Act (15 U.S.C. 1681a(f)) or the AAFES Employee Pay System issued, taxes paid; to process payment Federal Claims Collection Act of 1966 Records. in compliance with court orders (i.e. (31 U.S.C. 3701(a)(3)). The purpose of SYSTEM LOCATION: Qualifying Domestic Relations Order), this disclosure is to aid in the collection Headquarters, Army and Air Force and to answer inquiries and process of outstanding debts owed to the Exchange Service, 3911 S. Walton claims. Federal government, typically to provide an incentive for debtors to Walker Boulevard, Dallas, TX 75236– ROUTINE USES OF RECORDS MAINTAINED IN THE repay delinquent Federal government 1598; SYSTEM, INCLUDING CATEGORIES OF USERS AND Commander, Army and Air Force THE PURPOSES OF SUCH USES: debts by making these debts part of their Exchange Service-Pacific Rim Region, credit records. In addition to those disclosures The disclosure is limited to Unit 35163, APO AP 96378–0163; and generally permitted under 5 U.S.C. Commander, Army and Air Force information necessary to establish the 552a(b) of the Privacy Act, these records identity of the individual, including Exchange Service-Europe, Unit 24580, or information contained therein may APO AE 09245–4580. name, address, and taxpayer specifically be disclosed outside the identification number (Social Security CATEGORIES OF INDIVIDUALS COVERED BY THE DoD as a routine use pursuant to 5 Number); the amount, status, and SYSTEM: U.S.C. 552a(b)(3) as follows: history of the claim; and the agency or Individuals paid by the Army and Air To the Treasury Department to record program under which the claim arose Force Exchange System (AAFES). These checks and bonds issued. for the sole purpose of allowing the include, but are not limited to, civilian To the Internal Revenue Service for consumer reporting agency to prepare a employees, contractors, family the purpose of reporting taxable commercial credit report. members, and spouse or former spouse. earnings, taxes withheld, and to locate delinquent debtors. POLICIES AND PRACTICES FOR STORING, CATEGORIES OF RECORDS IN THE SYSTEM: To States and cities/counties to RETRIEVING, ACCESSING, RETAINING, AND Individual’s name; Social Security provide taxable earnings of civilian DISPOSING OF RECORDS IN THE SYSTEM: Number; AAFES facility number; employees to those States and cities or STORAGE: individual’s pay, leave, and retirement counties which have entered into an Paper records in file folders and records, withholding/deduction agreement with the Department of electronic storage medium. authorization for allotments, health Defense and the Department of the benefits, life insurance, savings bonds, Treasury. RETRIEVABILITY: financial institutions, etc.; tax To State Employment Offices to By individual’s surname and Social exemption certificates; personal provide information relevant to the Security Number. exception and indebtedness papers; State’s determination of individual’s subsistence and quarters records; entitlement to unemployment SAFEGUARDS: statements of charges, claims; roster and compensation. Records are restricted to personnel signature cards of designated To the U.S. Department of Justice/U.S. who are properly cleared and trained timekeepers; payroll and retirement Attorneys for legal action and/or final and have an official need therefore. In

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addition, integrity of automated data is DEPARTMENT OF DEFENSE REASON: ensured by internal audit procedures, There is no evidence that the system data base access accounting reports and Defense Information Systems Agency was ever implemented by DISA. controls to preclude unauthorized disclosure. Privacy Act of 1974; System of KNCS.03 Records SYSTEM NAME: RETENTION AND DISPOSAL: AGENCY: Defense Information Systems National Communications System Destroy after 6 years following Agency, DoD. Emergency Action Group (NEAG) termination of AAFES’’ involvement. ACTION: Notice to delete systems of (February 22, 1993, 58 FR 10562). Payroll Registers and Qualifying records. Domestic Relations Order records are REASON: permanent records. SUMMARY: The Defense Information There is no evidence that the system Systems Agency is deleting three was ever implemented by DISA. SYSTEM MANAGER(S) AND ADDRESS: systems of records notices from its [FR Doc. 03–5265 Filed 3–5–03; 8:45 am] existing inventory of records systems Commander, Headquarters, Army and BILLING CODE 5001–08–P Air Force Exchange Service, 3911 S. subject to the Privacy Act of 1974, (5 Walton Walker Boulevard, Dallas, TX U.S.C. 552a), as amended. 75236–1598. DATES: This proposed action will be DEPARTMENT OF EDUCATION effective without further notice on April NOTIFICATION PROCEDURE: 7, 2003 unless comments are received Notice of Proposed Information Individuals seeking to determine which result in a contrary Collection Requests whether information about themselves determination. is contained in this system should ADDRESSES: Send comments to the AGENCY: Department of Education address written inquiries to the Defense Information Systems Agency, SUMMARY: The Secretary of Education Commander, Headquarters, Army and 5600 Columbia Pike, Room 933–I, Falls requests comments on the Free Air Force Exchange Service, Attn: FA, Church, VA 22041–2705. Application for Federal Student Aid 3911 S. Walton Walker Boulevard, FOR FURTHER INFORMATION CONTACT: Mr. (FAFSA) that the Secretary proposes to Dallas, TX 75236–1598. David Bosworth at (703) 681–2066. use for the 2004–2005 year. The FAFSA Individual should provide their full SUPPLEMENTARY INFORMATION: The is completed by students and their name, Social Security Number, current Defense Information Systems Agency families and the information submitted address and telephone number; if systems of records notices subject to the on the form is used to determine the terminated, include date and place of Privacy Act of 1974, (5 U.S.C. 552a), as students’ eligibility and financial need separation. amended, have been published in the for financial aid under the student financial assistance programs RECORD ACCESS POCEDURES: Federal Register and are available from the address above. authorized under title IV of the Higher Individuals seeking to determine The specific changes to the records Education Act of 1965, as amended, whether information about themselves system being amended are set forth (title IV, HEA Programs). The Secretary is contained in this system should below followed by the notice, as also requests comments on changes address written inquiries to the amended, published in its entirety. The under consideration for the 2004–2005 Commander, Headquarters, Army and proposed amendments are not within FAFSA. Air Force Exchange Service, Attn: FA, the purview of subsection (r) of the DATES: Interested persons are invited to 3911 S. Walton Walker Boulevard, Privacy Act of 1974, (5 U.S.C. 552a), as submit comments on or before May 5, Dallas, TX 75236–1598. amended, which requires the 2003. Individual should provide their full submission of a new or altered system ADDRESSES: Written comments and name, Social Security Number, current report. requests for copies of the proposed address and telephone number; if Dated: February 28, 2003. information collection requests should terminated, include date and place of Patricia L. Toppings, be addressed to Joseph Schubart, separation. Alternate OSD Federal Register Liaison Department of Education, 600 CONTESTING RECORD RROCEDURES: Officer, Department of Defense. Independence Avenue, SW., Room 5624, Regional Office Building 3, The Army’s rules for accessing KNCS.01 Washington, DC 20202–4651. records and for contesting contents and SYSTEM NAME: In addition, interested persons can appealing initial agency determinations access this document on the Internet: are contained in Army Regulation 340– National Communications System (1) Go to IFAP at http://ifap.ed.gov; 21; 32 CFR part 505; or may be obtained Continuity of Operations Plan (NCS (2) Scroll down to ‘‘Publications’’; from the system manager. COOP) Automated Support (February 22, 1993, 58 FR 10562). (3) Click on ‘‘FAFSAs and Renewal RECORD SOURCE CATEGORIES: FAFSAs’’; REASON: (4) Click on ‘‘By 2004–2005 Award From the individual; personnel There is no evidence that the system Year’’; actions; other agency records and was ever implemented by DISA. (5) Click on ‘‘Draft FAFSA Form/ reports, and from court orders; and Instructions’’. similar documents. KNCS.02 Please note that the free Adobe EXEMPTIONS CLAIMED FOR THE SYSTEM: SYSTEM NAME: Acrobat Reader software, version 4.0 or National Communications System greater, is necessary to view this file. None. (NCS) Plan for Emergencies and Major This software can be downloaded for [FR Doc. 03–5267 Filed 3–5–03; 8:45 am] Disasters (February 22, 1993, 58 FR free from Adobe’s website: http:// BILLING CODE 5001–08–P 10562). www.adobe.com.

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SUPPLEMENTARY INFORMATION: Section in a timely manner, (3) is the estimate increased access to up-to-date school 483 of the Higher Education Act of of burden accurate, (4) how might the library materials; a well-equipped, 1965, as amended (HEA), requires the Department enhance the quality, utility, technologically advanced school library Secretary, ‘‘in cooperation with agencies and clarity of the information to be media center; and well-trained, and organizations involved in providing collected, and (5) how might the professionally certified school library student financial assistance,’’ to Department minimize the burden of this media specialists. ‘‘produce, distribute and process free of collection on the respondents, including Eligible Applicants: Local Educational charge a common financial reporting through the use of information Agencies (LEAs) in which at least 20 form to be used to determine the need technology. percent of the students served by the and eligibility of a student under’’ the Dated: February 28, 2003. LEA are from families with incomes title IV, HEA Programs. This form is the John D. Tressler, below the poverty line. (20 U.S.C. 6383). FAFSA. In addition, section 483 A list of LEAs with their family poverty authorizes the Secretary to include non- Leader, Regulatory Management Group, Office of the Chief Information Officer. rates is posted on the web at: http:// financial data items that assist States in www.ed.gov/offices/OESE/LSL. awarding State student financial Federal Student Aid Deadline for Notification of Intent to assistance. Type of Review: Revision of a currently Apply for Funding: We strongly The draft 2004–2005 FAFSA (posted approved collection. encourage each potential applicant to to the IFAP website) incorporates Title: Free Application for Federal Student notify us by March 28, 2003, of your suggestions from the community to Aid (FAFSA) (JS). intent to submit an application for simplify the FAFSA form, reducing the Frequency: Annually. funding. We will be able to develop a number of questions from 104 to 97. Affected Public: Individuals or household (primary). more efficient process for reviewing These suggestions included: Reducing grant applications if we have an the five enrollment status questions to Reporting and Recordkeeping Hour Burden: estimate of the number of entities that one question; combining the two Responses: 13,985,297. intend to apply for funding under this questions regarding the highest school Burden Hours: 7,770,355. competition. Notifications should be the applicant’s parents completed into Abstract: The FAFSA collects identifying sent by e-mail to the following Internet one question, and removing the two and financial information about a student address: [email protected]. questions asking if the applicant is applies for title IV, Higher Education Act Please put ‘‘Notice of Intent’’ in the interested in loans or work-study. The (HEA) Program funds. This information is subject line. Applicants that fail to Secretary requests comments on ways to used to calculate the student’s expected family contribution, which is used to provide this e-mail notification may still further simplify the application for apply for funding. students, parents, and schools. determine a student’s financial need. The Applications Available: March 6, In particular, the Secretary seeks information is also used to determine the student’s eligibility for grants and loans 2003. comments on simplifying the FAFSA under the title IV, HEA Programs. It is further through use of the FAFSA on the Web Deadline for Transmittal of used for determining a student’s eligibility Applications: April 28, 2003. product. The Secretary is considering for State and institutional financial aid adding capability to FAFSA on the Web Deadline for Intergovernmental programs. Review: June 27, 2003. to permit applicants to skip questions Written requests for information should be not required by their state of residence addressed to Vivian Reese, Department of Estimated Available Funds: or for EFC determination. For example, Education, 400 Maryland Avenue, SW., $12,000,000. if an applicant’s state does not require Room 4050, Regional Office Building 3, Estimated Range of Awards: $20,000 question 18, enrollment status, FAFSA Washington, DC 20202–4651 or to the e-mail to $350,000. on the Web would not present question address [email protected]. Requests may Estimated Average Size of Awards: 18 to the applicant. The Secretary is also also be faxed to 202–708–9346. Please $75,000. specify the complete title of the information considering removing the early analysis collection when making your request. Note: The size of the awards will be option from the web application. Comments regarding burden and/or the commensurate with the nature and scope of The Secretary is publishing this collection activity requirements should be the work proposed and the number of request for comment under the directed to Joseph Schubart at his e-mail schools to be served. provisions of the Paperwork Reduction address [email protected]. Individuals Estimated Number of Awards: 75– Act of 1995, 44 U.S.C. 3501 et seq. who use a telecommunications device for the 100. Under that Act, ED must obtain the deaf (TDD) may call the Federal Information review and approval of the Office of Relay Service (FIRS) at 1–800–877–8339. Note: The Department is not bound by any estimates in this notice. Management and Budget (OMB) before [FR Doc. 03–5207 Filed 3–5–03; 8:45 am] Project Period: 12 months. it may use a form to collect information. BILLING CODE 4000–01–U However, under procedure for obtaining Page Limit: The application must approval from OMB, ED must first include the following sections: title page obtain public comment of the proposed DEPARTMENT OF EDUCATION form (ED 424), one-page abstract, form, and to obtain that comment, ED program narrative, budget summary must publish this notice in the Federal [CFDA No. 84.364A] form (ED 524) with budget narrative, Register. Office of Elementary and Secondary individual resumes (up to 3 pages each) In addition to comments requested Education; Improving Literacy for project directors and other key above, to accommodate the Through School Libraries Program personnel, statement of equitable access requirements of the Paperwork (LSL); Notice Inviting Applications for (GEPA 427), and other required forms Reduction Act, the Secretary is New Awards for Fiscal Year (FY) 2003 and assurances as described in the interested in receiving comments with application package. Please note that regard to the following matters: (1) Is Purpose of Program: The purpose of this program is a competitive this collection necessary to the proper this program is to improve student discretionary grant program, so it is functions of the Department, (2) will literacy skills and academic essential that your program narrative this information be processed and used achievement by providing students with address the selection criteria that

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reviewers use to evaluate your maximize the impact of the project on activities that foster increased application. improving student reading achievement. collaboration between school library Applicants are strongly encouraged to Applicants are encouraged to media specialists, teachers, and limit the program narrative (text plus all demonstrate the direct link between the administrators. figures, charts, tables, and diagrams) to proposed activities and improved (5) Providing students with access to the equivalent of 15 pages, using the reading achievement. school libraries during non-school following standards: Under 34 CFR 75.105(c)(1) we do not hours, including the hours before and • A ‘‘page’’ is 8.5″ x 11″, on one side give an application that meets the after school, during weekends, and only, with 1″ margins at the top, bottom, invitational priority a competitive or during summer vacation periods. and both sides. absolute preference over other (d) Use of scientifically based • Double space (no more than three applications. research (10 points). How well the lines per vertical inch) all text in the Selection Criteria applicant will use programs and program narrative. materials that are grounded in • Use a font that is either 12-point or We use the following selection criteria scientifically based research, as defined larger or no smaller than 10 pitch to evaluate applications for new grants in section 9101(37) of the ESEA, in (characters per inch). under this competition. The maximum • carrying out one or more of the activities Include all critical information in score for all of these criteria is 100 described under criterion(c) above. the program narrative, eliminating the points. The maximum score for each (e) Broad-based involvement and need for appendices. criterion is indicated in parentheses. • coordination (15 points). How well the The page limit does not apply to the We evaluate an application by applicant will extensively involve title page form (ED 424), the one-page determining how well the proposed school library media specialists, abstract, the budget summary form and project meets the following provisions: teachers, administrators, and parents in narrative budget justification, the (a) Meeting the purpose of the statute the proposed project activities and resumes, or the assurances and (10 points). effectively coordinate the funds and certifications. How well the proposed project activities provided under this program We have found that reviewers are able addresses the intended outcome of the with other literacy, library, technology, to conduct the highest-quality review statute to improve student literacy skills and professional development funds when applications are concise and easy and academic achievement by providing and activities. to read, with pages consecutively students with increased access to up-to- (f) Evaluation of quality and impact numbered. date school library materials; a well- (20 points). How well the applicant will Applicable Regulations: The equipped, technologically advanced collect and analyze data on the quality Education Department General school library media center; and well- and impact of the proposed project Administrative Regulations (EDGAR) in trained, professionally certified school activities, including the extent to which 34 CFR parts 75, 77, 79, 80, 81, 82, 85, library media specialists. the availability of, the access to, and the 97, 98 and 99. (b) Need for school library resources use of up-to-date school library media Description of Program: The (10 points). How well the applicant resources in the elementary schools and Improving Literacy Through School demonstrates the need for school library secondary schools served by the Libraries (LSL) program, Subpart 4 of media improvement, based on the age applicant were increased; and the Part B of Title I of the Elementary and and condition of school library media impact on improving the reading skills Secondary Education Act (ESEA), as resources, including: Book collections; of students. amended by the No Child Left Behind access of school library media centers to Act promotes comprehensive local advanced technology; and the Geographic Distribution strategies to improve student reading availability of well-trained, In making funding decisions we will achievement by improving school professionally certified school library also consider the equitable distribution library services and resources. The LSL media specialists, in schools served by of grants across geographic regions and program is one component of the the applicant. among local educational agencies Department’s commitment to (c) Use of funds (35 points). How well serving urban and rural areas. dramatically improving student reading the applicant will use the funds made achievement by focusing available available through the grant to carry out Application Procedures resources, including those of school those of the following activities that library media centers, on ensuring that meet its demonstrated needs— Note: Some of the procedures in these no child is left behind. School library (1) Acquiring up-to-date school instructions for transmitting applications media centers contribute to the library media resources, including differ from those in the Education Department General Administrative improvement of student reading books. Regulations (EDGAR) (34 CFR 75.102). Under achievement when there is increased (2) Acquiring and using advanced the Administrative Procedure Act (5 U.S.C. collaboration among instructional and technology, incorporated into the 553) the Department generally offers school library media center staff, curricula of the school, to develop and interested parties the opportunity to provision of additional instructional enhance the information literacy, comment on proposed regulations. However, materials and resources, and the information retrieval, and critical these amendments make procedural changes extension of hours of operation to thinking skills of students. only and do not establish new substantive include non-school hours. (3) Facilitating Internet links and policy. Therefore, under 5 U.S.C. 553(b)(A), other resource-sharing networks among the Secretary has determined that proposed Invitational Priority schools and school library media rulemaking is not required. We are particularly interested in centers, and public and academic Pilot Project for Electronic Submission applications that meet the following libraries, where possible. of Applications invitational priority. (4) Providing professional The Secretary strongly encourages development, as described in section In FY 2003, the U.S. Department of applicants to focus on comprehensive 1222(d)(2) of the ESEA, for school Education is continuing to expand its and collaborative reading efforts that library media specialists, and providing pilot project for electronic submission of

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applications to include additional • Closing Date Extension in Case of If you use a telecommunications formula grant programs and additional System Unavailability: If you elect to device for the deaf (TDD), you may call discretionary grant competitions. The participate in the e-Application pilot for the Federal Information Relay Service Improving Literacy Through School the Improving Literacy Through School (FIRS) at 1–800–877–8339. Individuals Libraries Program, CFDA #84.364A, is Libraries Program and you are with disabilities may obtain this one of the programs included in the prevented from submitting your document in an alternative format (e.g., pilot project. If you are an applicant application on the closing date because Braille, large print, audiotape, or under the Improving Literacy Through the e-Application system is unavailable, computer diskette) on request to the School Libraries Program you may we will grant you an extension of one program contact person listed under FOR submit your application to us in either business day in order to transmit your FURTHER INFORMATION CONTACT. application electronically, by mail, or by electronic or paper format. Electronic Access to This Document The pilot project involves the use of hand delivery. For us to grant this the Electronic Grant Application System extension— You may view this document, as well (e-Application) portion of the Grant (1) You must be a registered user of as all other Department of Education Administration and Payment System e-Application, and have initiated an e- documents published in the Federal (GAPS). Users of e-Application will be Application for this competition; and Register, in text or Adobe Portable entering data on-line while completing (2)(a) The e-Application system must be Document Format (PDF) on the Internet their applications. You may not e-mail unavailable for 60 minutes or more at the following site: http://www.ed.gov/ a soft copy of a grant application to us. between the hours of 8:30 and 3:30 p.m., legislation/FedRegister. If you participate in this voluntary pilot Washington, DC time, on the deadline To use PDF you must have Adobe project by submitting an application date; or Acrobat Reader, which is available free electronically, the data you enter on-line (b) The e-Application system must be at this site. If you have questions about will be saved into a database. We unavailable for any period of time using PDF, call the U.S. Government request your participation in e- during the last hour of operation (that is, Printing Office (GPO), toll free, at 1– Application. We shall continue to for any period of time between 3:30 and 888–293–6498; or in the Washington, evaluate its success and solicit 4:30 p.m., Washington, DC time) on the DC area at (202) 512–1530. suggestions for improvement. deadline date. The Department must Note: The official version of this document If you participate in e-Application, acknowledge and confirm these periods is the document published in the Federal please note the following: of unavailability before granting you an Register. Free Internet access to the official • Your participation is voluntary. extension. To request this extension you edition of the Federal Register and the Code • You will not receive any additional must contact either (1) the person listed of Federal Regulations is available on GPO point value because you submit a grant elsewhere in this notice under FOR Access at: http://www.access.gpo.gov/nara/ index.html. application in electronic format, nor FURTHER INFORMATION CONTACT or (2) the will we penalize you if you submit an e-GRANTS help desk at 1–888–336– Program Authority: 20 U.S.C. 6383. application in paper format. When you 8930. enter the e-Application system, you will You may access the electronic grant Dated: March 3, 2003. find information about its hours of application for the Improving Literacy Eugene W. Hickok, operation. Through School Libraries Program at: Under Secretary of Education. • You may submit all documents http://e-grants.ed.gov. [FR Doc. 03–5284 Filed 3–5–03; 8:45 am] electronically, including the FOR APPLICATIONS CONTACT: BILLING CODE 4000–01–P Application for Federal Assistance (ED Applications will be available on the 424), Budget InformationNon- World Wide Web at the following sites: Construction Programs (ED 524), and all http://www.ed.gov/offices/OESE/LSL; DEPARTMENT OF EDUCATION http://www.ed.gov/GrantApps. necessary assurances and certifications. [CFDA No.: 84.344] • After you electronically submit Hard Copies will be available after your application, you will receive an March 6, 2003, from the Education Office of Postsecondary Education; automatic acknowledgement, which Publications Center (ED Pubs), P.O. Box TRIO Dissemination Partnership (TRIO will include a PR/Award number (an 1398, Jessup, MD 20794–1398. Dissemination) Program; Notice identifying number unique to your Telephone (toll free) 1–877–433–7827. Inviting Applications for New Awards application). FAX: (301) 470–1244. If you use a for Fiscal Year (FY) 2003 • Within three working days after telecommunications device for the deaf submitting your electronic application, (TDD), you may call (toll free): 1–877– Purpose of Program: The TRIO fax a signed copy of the Application for 576–7734. Dissemination Program provides grants Federal Assistance (ED 424) to the You may also contact ED Pubs at its to TRIO Program grantees to enable Application Control Center after Web site: http://www.ed.gov/pubs/ them to work with institutions and following these steps: edpubs.html. or you may contact ED organizations that are serving low- (1) Print ED 424 from the e- Pubs at its e-mail address: income and first-generation college Application system. [email protected]. students, but do not have TRIO Program (2) The institution’s Authorizing If you request an application from ED grants. The purpose of the TRIO Representative must sign this form. Pubs, be sure to identify this Dissemination Program is to promote (3) Place the PR/Award number in the competition as follows: 84.364A. the replication or adaptation of upper right hand corner of the hard FOR FURTHER INFORMATION CONTACT: successful TRIO Program components, copy signature page of the ED 424. Margaret McNeely or Beth Fine, U.S. practices, strategies, and activities by (4) Fax the signed ED 424 to the Department of Education, 400 Maryland institutions and organizations that are Application Control Center at (202) Avenue, SW., room 5C130, FOB–6, not TRIO Program grantees. The TRIO 260–1349. Washington, DC 20202–6200. Programs consist of Talent Search, • We may request that you give us Telephone: (202) 260–1335 (Margaret Educational Opportunity Centers, original signatures on all other forms at McNeely) or (202) 260–1091 (Beth Fine) Upward Bound, Student Support a later date. or via Internet: [email protected]. Services, Ronald E. McNair

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Postbaccalaureate Achievement text in charts, tables, figures, and Invitational Priority 3—Business and Programs, and the Training Program for graphs. Community Partnerships and K–12 Federal TRIO Programs. • Use a font that is either 12 point or Collaborations For FY 2003, we encourage applicants larger or no smaller than 10 pitch Projects to assist communities with to design projects that focus on the (characters per inch). large numbers of low-income, first- invitational priorities in the Priorities generation college students to develop section of this application notice. The page limit does not apply to Part I, the cover sheet; Part II, the budget effective business and community Eligible Applicants: Institutions of partnerships and K–12 collaborations. higher education and private and public section, including the narrative budget institutions and organizations that were justification; Part IV, the assurances and Invitational Priority 4—Increased carrying out a Federal TRIO grant before certifications; or the one-page abstract, Participation of Underrepresented October 7, 1998, the date of enactment the resumes, the bibliography, or the Groups in Graduate Study of the Higher Education Amendments of letters of support. However, you must Projects designed to share successful 1998. include all of the application narrative TRIO strategies for increasing the Applications Available: March 6, in Part III. access, retention, and completion rates 2003. We will reject your application if— of low-income, first generation college Deadline for Transmittal of • You apply these standards and students and students from the Applications: April 7, 2003. exceed the page limit; or following ethnic and racial groups that are currently underrepresented in Deadline for Intergovernmental • Review: June 9, 2003. You apply other standards and graduate education: Black (non- Estimated Available Funds: exceed the equivalent of the page limit. Hispanic), Hispanic, American Indian, $5,500,000. Applicable Regulations: (a) The and Alaska Native. Education Department General Under 34 CFR 75.105(c)(1) we do not SUPPLEMENTARY INFORMATION: All Administrative Regulations (EDGAR) in give an application that meets the previously funded grantees under this invitational priorities a competitive or program are eligible to apply under this 34 CFR parts 74, 75, 77, 79, 80, 81, 82, 85, 86, 97, 98, and 99. absolute preference over other competition. However, no prior applications. experience points will be awarded. In Priorities FOR APPLICATIONS AND FURTHER addition, as the purpose of the INFORMATION CONTACT: Invitational Priorities: We are Eileen S. Bland Dissemination Program is to increase or Virginia Mason, Office of Federal particularly interested in applications the impact of the TRIO Programs in TRIO Programs, U.S. Department of that meet one or more of the following order to reach more TRIO-eligible Education, 1990 K Street, NW., Suite invitational priorities. students, previously funded grantees 7000, Washington, DC 20006–8510. must identify new partners and, as Invitational Priority 1—Advance the Telephone: (202) 502–7600 or via appropriate, select a new component or Awareness of Underserved Groups in Internet: [email protected]. strategy. the Benefits of TRIO Programs If you use a telecommunications Estimated Range of Awards: device for the deaf (TDD), you may call $150,000–$200,000 for Year 1 of the Projects that have developed the Federal Information Relay Service project period. successful partnerships with (FIRS) at 1–800–877–8339. Estimated Average Size of Awards: institutions and organizations serving Individuals with disabilities may $179,000 per year. significant numbers or percentages of obtain this document in an alternative Maximum Award: We will reject any TRIO-eligible students in economically format (e.g., Braille, large print, application that proposes a budget depressed areas for the purposes of audiotape, or computer diskette) on exceeding $200,000 for Year 1 of the increasing access, retention and request to the contact person listed project period. The Assistant Secretary completion rates of these students in under FOR APPLICATIONS AND FURTHER for Postsecondary Education may secondary and postsecondary education. INFORMATION CONTACT. change the maximum amount through a TRIO institutions and organizations that Individuals with disabilities also may notice published in the Federal have been successful in making the obtain a copy of the application package Register. TRIO programs more visible and in an alternative format by contacting Estimated Number of Awards: 25–30. accessible to these potential participants those persons. However, the Department Note: The Department is not bound by any are encouraged to assist other is not able to reproduce in an alternative of the estimates in this notice. institutions in adopting successful format the standard forms included in the application package. Project Period: Up to 36 months. intervention models. Electronic Access to This Document Page Limit: The application narrative Invitational Priority 2—Effective Use of (Part III of the application) is where you, Educational Technology You may view this document, as well the applicant, address the selection as all other Department of Education criteria reviewers use to evaluate your Projects designed to share effective documents published in the Federal application. You must limit Part III to strategies for using technology in a Register, in text or Adobe Portable the equivalent of no more than 45 pages, variety of ways, including innovative Document Format (PDF) on the Internet using the following standards: technology-based instructional at the following site: http://www.ed.gov/ • A ‘‘page’’ is 8.5″ by 11″, on one side programs; use of technology to provide legislation/FedRegister. only, with 1″ margins at the top, bottom, better access to educational To use PDF you must have Adobe and both sides. opportunities; and technology-based Acrobat Reader, which is available free • Double space (no more than three programs to equip disadvantaged at this site. If you have questions about lines per vertical inch) all text in the students with the knowledge and skills using PDF, call the U.S. Government application narrative, including titles, to compete for jobs in the emerging Printing Office (GPO), toll free, at 1– headings, footnotes, quotations, world economy that require the use of 888–293–6498; or in the Washington, references, and captions, as well as all new and sophisticated technologies. DC, area at (202) 512–1530.

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Note: The official version of this document ACTION: Notice of open meeting. • Introduction of a letter to the Tri- is the document published in the Federal Party Agreement Agencies on the recent Register. Free Internet access to the official SUMMARY: This notice announces a state of the site meetings; edition of the Federal Register and the Code meeting of the Environmental • Additional ground rules; of Federal Regulations is available on GPO Management Site-Specific Advisory • Public comment. Access at: http://www.access.gpo.gov/nara/ Board (EM SSAB), Hanford. The Federal index.html. Public Participation: The meeting is Advisory Committee Act (Pub. L. 92– open to the public. Written statements Program Authority: 20 U.S.C. 1070a–11 463, 86 Stat. 770) requires that public may be filed with the Board either and 1070a–18. notice of these meeting be announced in before or after the meeting. Individuals the Federal Register. Dated: March 3, 2003. who wish to make oral statements DATES: Thursday, April 3, 2003, 9 a.m.– Sally L. Stroup, pertaining to agenda items should 5 p.m., Friday, April 4, 2003, 8:30 a.m.– contact Yvonne Sherman’s office at the Assistant Secretary, Office of Postsecondary 4 p.m. Education. address or telephone number listed ADDRESSES: West Coast Ridpath Hotel, above. Requests must be received five [FR Doc. 03–5283 Filed 3–5–03; 8:45 am] 515 Sprague Avenue, Spokane, WA. days prior to the meeting and reasonable BILLING CODE 4000–01–P Phone: (509) 838–2711, Fax: (509) 747– provision will be made to include the 6970. presentation in the agenda. The Deputy FOR FURTHER INFORMATION CONTACT: Designated Federal Officer is DEPARTMENT OF ENERGY Yvonne Sherman, Public Involvement empowered to conduct the meeting in a Program Manager, Department of Energy Office of Science fashion that will facilitate the orderly Richland Operations Office, 825 Jadwin, conduct of business. Each individual Basic Energy Sciences Advisory MSIN A7–75, Richland, WA, 99352; wishing to make public comment will Committee Renewal Phone: (509) 376–6216; Fax: (509) 376– be provided equal time to present their 1563. comments. Pursuant to section 14(a)(2)(A) of the SUPPLEMENTARY INFORMATION: Purpose of Minutes: The minutes of this meeting Federal Advisory Committee Act and in the Board: The purpose of the Board is will be available for public review and accordance with title 41, Code of to make recommendations to DOE and copying at the Freedom of Information Federal Regulations, section 102–3.65, its regulators in the areas of Public Reading Room, 1E–190, Forrestal and following consultation with the environmental restoration, waste Building, 1000 Independence Avenue, Committee Management Secretariat, management, and related activities. SW., Washington, DC 20585 between 9 General Services Administration, notice a.m. and 4 p.m., Monday-Friday, except Tentative Agenda: is hereby given that the Basic Energy Federal holidays. Minutes will also be Sciences Advisory Committee has been Thursday, April 3, 2003 available by writing to Yvonne renewed for a two-year period beginning • Presentation on the Hanford Sherman, Department of Energy in February 2003. The Committee will Systems Assessment Capability (SAC) Richland Operation Office, 825 Jadwin, provide advice to the Director, Office of Tool; MSIN A7–75, Richland, WA 99352, or Science, on the basic energy sciences • Discussion and introduction of draft by calling her at (509) 376–1563. program. advice on the Proposed Elimination of The Secretary has determined that the Issued in Washington, DC on February 28, Technetium-99 (Tc-99) Removal from 2003. renewal of the Basic Energy Sciences Tank Waste Pretreatment; Advisory Committee is essential to the • Presentation and discussion of the Rachel M. Samuel, conduct of the Department’s business DOE–HQ draft policy and guidance on Deputy Advisory Committee Management and in the public interest in connection the risk-based end state vision; Officer. with the performance of duties imposed • Discussion and introduction of draft [FR Doc. 03–5259 Filed 3–5–03; 8:45 am] upon the Department of Energy by law. advice on FY03, FY04 and FY05 budget; BILLING CODE 6450–01–P The Committee will continue to operate • Discussion and draft advice on the in accordance with the provisions of the Disposition of Transuranic Waste in the Federal Advisory Committee Act, the Tanks; DEPARTMENT OF ENERGY • Introduction of draft advice on the Department of Energy Organization Act Environmental Management Site- (Pub. L. 95–91), and rules and Hanford Groundwater Strategic Plan (tentative); Specific Advisory Board Chairs regulations issued in implementation of Meeting those Acts. • Public comment. Further information regarding this Friday, April 4, 2003. AGENCY: Department of Energy. • Adoption of draft advice: advisory committee can be obtained ACTION: Notice of open meeting. from Rachel Samuel at (202) 586–3279. • Elimination of Technetium-99 (Tc- 99) Removal from Tank Waste Issued in Washington, DC on February 25, SUMMARY: This notice announces a 2003. Pretreatment, FY03, FY04, FY05 meeting of the Environmental budgets, Disposition of Transuranic James N. Solit, Management Site-Specific Advisory Waste in the Tanks, Hanford Advisory Committee Management Officer. Board (EM SSAB) Chairs Meeting. The Groundwater Strategic Plan (tentative). Federal Advisory Committee Act (Pub. [FR Doc. 03–5262 Filed 3–5–03; 8:45 am] • Update on the Hanford Solid Waste L. 92–463, 86 Stat. 770) requires that BILLING CODE 6450–01–P Environmental Impact Statement (HSW public notice of this meeting be EIS)—second draft. announced in the Federal Register. • Status of M–91 Tri-Party Agreement DEPARTMENT OF ENERGY negotiations. (These negotiations DATES: March 28–29, 2003. focused on the cleanup of DOE ADDRESSES: Adams Mark Hotel, 1550 Environmental Management Site- Court Place, Denver, CO 80202. Specific Advisory Board, Hanford Transuranic and Mixed Transuranic Wastes and associated low-level and FOR FURTHER INFORMATION CONTACT: Ken AGENCY: Department of Energy. mixed low-level wastes.) Korkia, Board/Staff Coordinator, Rocky

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Flats Citizens Advisory Board, 9035 of expectations/objectives, Meeting Purpose of the Committee: To provide North Wadsworth Parkway, Suite 2250, evaluation advice, information, and Westminster, CO 80031; telephone (303) 12 noon Adjourn recommendations to the Secretary of 420–7855; fax (303) 420–7579. Public Participation: The meeting is Energy on matters relating to oil and gas SUPPLEMENTARY INFORMATION: Purpose of open to the public. Written statements or the oil and gas industry. the Board: The purpose of the Board is may be filed with the Committee either Tentative Agenda to make recommendations to DOE and before or after the meeting. Individuals its regulators in the areas of who wish to make oral statements —Call to order and introductory environmental restoration, waste pertaining to agenda items should remarks by William A. Wise, Chair of management, and related activities. contact Ken Korkia at the address or the NPC telephone number listed above. —Remarks by the Honorable Spencer Tentative Agenda Requests must be received five days Abraham, Secretary of Energy Friday, March 28, 2003 prior to the meeting and reasonable (invited) 8 a.m. Registration provision will be made to include the —Administrative matters 8:30 a.m. Opening business, presentation in the agenda. The Deputy —New business Welcoming remarks; Victor Holm, Designated Federal Officer is —Public comment (10-minute rule) RFCAB Chair; Eugene Schmitt, DOE empowered to conduct the meeting in a —Adjournment RF Manager; others, Introductions, fashion that will facilitate the orderly Public Participation: The meeting is Meeting ground rules and agenda conduct of business. Each individual open to the public. The chairperson of review, Meeting objectives and wishing to make public comment will the Council is empowered to conduct expectations be provided a maximum of five minutes the meeting in a fashion that will 9 a.m. Roundtable presentations to present their comments at the end of facilitate the orderly conduct of from each site focusing on intersite the meeting. business. Any member of the public shipment of wastes and materials (5 Minutes: Minutes of this meeting will who wishes to file a written statement min. per site) be available for public review and with the Council will be permitted to do 9:45 a.m. Chairs discussion of copying at the Freedom of Information so, either before or after the meeting. intersite shipment issues Public Reading Room, 1E–190, Forrestal Members of the public who wish to 10:30 a.m. Break Building, 1000 Independence Avenue, make oral statements pertaining to 10:45 a.m. Presentation and SW., Washington, DC 20585 between 9 agenda items should contact Ms. Kristen discussion on DOE–EM 2003–2004 a.m. and 4 p.m., Monday–Friday except Palasciano at the address or telephone budget with Deputy Assistant Federal holidays. Minutes will also be number listed above. Requests must be Secretary for Policy, Planning and available by writing or calling Ken received at least five days prior to the Budget, Roger Butler Korkia at the address or telephone meeting and reasonable provision will 11:45 a.m. Lunch number listed above. be made to include the presentation on 1 p.m. Presentation and discussion the agenda. on long-term stewardship with Issued in Washington, DC on February 28, 2003. Transcripts: Available for public Dave Geiser, DOE Office of Long- review and copying at the Public Rachel M. Samuel, Term Stewardship and Mike Owen, Reading Room, Room 1E–190, Forrestal Director of Worker and Community Deputy Advisory Committee Management Building, 1000 Independence Avenue, Officer. Transition and the Secretary of SW., Washington, DC, between 9 a.m. Energy’s Designee to Lead the [FR Doc. 03–5260 Filed 3–5–03; 8:45 am] and 4 p.m., Monday through Friday, Legacy Management Transition BILLING CODE 6450–01–P except Federal holidays. Team 3 p.m. Break Issued in Washington, DC, on February 28, 2003. 3:15 p.m. Discussion and approval DEPARTMENT OF ENERGY of TRU Waste Workshop Rachel M. Samuel, Recommendations Office of Fossil Energy; National Deputy Advisory Committee, Management 4:15 p.m. Public comment period Petroleum Council Officer. [FR Doc. 03–5261 Filed 3–5–03; 8:45 am] 4:30 p.m. Day 1 wrap-up and review AGENCY: Department of Energy. of Day 2 BILLING CODE 6450–01–P 4:45 p.m. Adjourn ACTION: Notice of open meeting. Saturday, March 29, 2003 SUMMARY: This notice announces a 8:30 a.m. Review agenda meeting of the National Petroleum ENVIRONMENTAL PROTECTION 8:35 a.m. Planning for future Council. Federal Advisory Committee AGENCY EMSSAB events, Next Chairs Act (Pub. L. 92–463, 86 Stat. 770) [OECA–2002–0014; FRL–7457–4] meeting(s): Discussion question on requires notice of these meetings be how often chairs should meet; announced in the Federal Register. Agency Information Collection location and date for next meeting, Activities; Submission of EPA ICR No. Next workshop DATES: Friday, May 16, 2003, 9 a.m. 1900.02 (OMB No. 2060–0423) to OMB 9:30 a.m. Discussion with new ADDRESSES: The St. Regis Hotel, Crystal for Review and Approval; Comment EMSSAB Designated Federal Ballroom, 923 Sixteenth & K Streets, Request Officer Sandra Waisley and Deputy NW., Washington, DC. Assistant Secretary Roger Butler AGENCY: Environmental Protection 10:15 a.m. Break FOR FURTHER INFORMATION CONTACT: Ms. Agency (EPA). Kristen Palasciano, U.S. Department of 10:30 a.m. Roundtable discussion ACTION: Notice. with each board sharing success Energy, Office of Fossil Energy, stories or outlining concerns Washington, DC 20585. Phone: 202/ SUMMARY: In compliance with the 11:30 a.m. Public comment period 586–9768. Paperwork Reduction Act (44 U.S.C. 11:45 a.m. Meeting wrap-up, Review SUPPLEMENTARY INFORMATION: 3501 et seq.), this document announces

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that the following Information online using EDOCKET (our preferred operators of small MWCs are required to Collection Request (ICR) has been method), by e-mail to ECDIC at measure, record, and report emission forwarded to the Office of Management [email protected], or by mail to: EPA rates and operating parameters, follow and Budget (OMB) for review and Docket Center, Environmental good combustion practices (GCP), and approval: Title: NSPS: Small Municipal Protection Agency, Mailcode: 2201T, submit a siting analysis. The responses Waste Combustors (40 CFR part 60, 1200 Pennsylvania Ave., NW., to this NSPS are mandatory. subpart AAAA) (OMB Control No. Washington, DC 20460, and (2) Mail An agency may not conduct or 2060–0423, EPA ICR No. 1900.02) The your comments to OMB at: Office of sponsor, and a person is not required to ICR, which is abstracted below, Information and Regulatory Affairs, respond to, a collection of information describes the nature of the information Office of Management and Budget collection and its estimated burden and (OMB), attention: Desk Officer for EPA, unless it displays a currently valid OMB cost. 725 17th Street, NW., Washington, DC control number. The OMB control numbers for EPA’s regulations are listed DATES: Additional comments may be 20503. in 40 CFR part 9 and 48 CFR chapter 15, submitted on or before April 7, 2003. EPA’s policy is that public comments, and are identified on the form and/or ADDRESSES: whether submitted electronically or in Follow the detailed instrument, if applicable. instructions in the SUPPLEMENTARY paper, will be made available for public INFORMATION. viewing in EDOCKET as EPA receives Burden Statement: The annual public them and without change, unless the reporting and recordkeeping burden for FOR FURTHER INFORMATION CONTACT: comment contains copyrighted material, this collection of information is Joyce Chandler, Compliance Assistance CBI, or other information whose public estimated to average 2,100 hours per and Sector Program, Office of disclosure is restricted by statute. When response. Burden means the total time, Enforcement & Compliance Assurance, EPA identifies a comment containing Mailcode 2224A, Environmental effort, or financial resources expended copyrighted material, EPA will provide by persons to generate, maintain, retain, Protection Agency, 1200 Pennsylvania a reference to that material in the Ave., NW., Washington, DC 20460; or disclose or provide information to or version of the comment that is placed in for a Federal agency. This includes the telephone number: (202) 564–7073; fax EDOCKET. The entire printed comment, number: (202) 564–0009; e-mail address: time needed to review instructions; including the copyrighted material, will develop, acquire, install, and utilize [email protected]. Refer to EPA be available in the public docket. ICR Number 1900.02. technology and systems for the purposes Although identified as an item in the of collecting, validating, and verifying SUPPLEMENTARY INFORMATION: EPA has official docket, information claimed as submitted the following ICR to OMB for information, processing and CBI, or whose disclosure is otherwise maintaining information, and disclosing review and approval according to the restricted by statute, is not included in procedures prescribed in 5 CFR 1320.12. and providing information; adjust the the official public docket, and will not existing ways to comply with any On June 20 (67 FR 41981), EPA sought be available for public viewing in previously applicable instructions and comments on this ICR pursuant to 5 EDOCKET. For further information requirements; train personnel to be able CFR 1320.8(d). EPA received no about the electronic docket, see EPA’s to respond to a collection of comments. Federal Register notice describing the information; search data sources; EPA has established a public docket electronic docket at 67 FR 38102 (May complete and review the collection of for this ICR under Docket ID No. OECA– 31, 2002), or go to http://www.epa.gov/ 2002–0014, which is available for public edocket. information; and transmit or otherwise viewing at the Enforcement & Title: NSPS: Small Municipal Waste disclose the information. Compliance Docket and Information Combustors (40 CFR part 60, subpart Respondents/Affected Entities: Small Center (ECDIC) in the EPA Docket AAAA) (OMB Control No. 2060–0423, MWCs that combust greater than 35 tons Center (EPA/DC), EPA West Building, EPA ICR Number 1900.02). This is a per day (tpd) but less than 250 tpd of Room B102, 1301 Constitution Ave., request to renew an existing approved municipal solid waste. NW., Washington, DC. The EPA Docket collection that is scheduled to expire on Estimated Number of Respondents: 6 Center Public Reading Room is open February 28, 2003. Under the OMB plants with 2 small MWC units each. from 8:30 a.m. to 4:30 p.m., Monday regulations, the Agency may continue to through Friday, excluding legal conduct or sponsor the collection of Frequency of Response: Initial, holidays. The telephone number for the information while this submission is Quarterly, Semi-annual, Annual. Reading Room is (202) 566–1744, and pending at OMB. Estimated Total Annual Hour Burden: the telephone number for the ECDIC Abstract: This addresses information 25,201 hours. Docket is (202) 566–1514. An electronic collection activities that would be Estimated Total Annual Cost: version of the public docket is available imposed by the NSPS: Small Municipal $806,474, includes $200,000 annualized through EPA Dockets (EDOCKET) at Waste Combustors, 40 CFR part 60, capital and $77,000 O&M costs. http://www.epa.gov/edocket. Use subpart AAAA. This information EDOCKET to submit or view public collection is required as a result of the Changes in the Estimates: There is a comments, access the index listing of implementation of the NSPS that are increase of 16,642 hours in the total the contents of the public docket, and to being developed under the authority of estimated burden currently identified in access those documents in the public sections 111 and 129 of the Clean Air the OMB Inventory of Approved ICR docket that are available electronically. Act (CAA). Reporting and recordkeeping Burdens. This increase is due to the new Once in the system, select ‘‘search,’’ requirements would apply to MWC small municipal waste combustors that then key in the docket ID number units that have the capacity to combust have begun operating. identified above. greater than 35 tons per day (tpd) but Dated: February 28, 2003. Any comments related to this ICR less than 250 tpd of municipal solid Oscar Morales, should be submitted to EPA and OMB waste. within 30 days of this notice, and This ICR will enable EPA to monitor Director, Collection Strategies Division. according to the following instructions: compliance with emission standards for [FR Doc. 03–5311 Filed 3–5–03; 8:45 am] (1) Submit your comments to EPA regulated pollutants. Owners and BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION public docket is available through EPA Notification of any physical or AGENCY Dockets (EDOCKET) at http:// operational change to an existing facility www.epa.gov/edocket. Use EDOCKET to which may increase the regulated [OECA–2003–0004; FRL–7457–9] submit or view public comments, access pollutant emission rate, notification of Agency Information Collection the index listing of the contents of the the initial performance test; including Activities; Submission for OMB Review public docket, and to access those information necessary to determine the and Approval; Comment Request; documents in the public docket that are conditions of the performance test; NSPS for Coal Preparation Plants (40 available electronically. When in the performance test measurements and CFR Part 60, Subpart Y), ICR Number system, select ‘‘search,’’ then key in the results, and notification of 1062.08, OMB Number 2060–0122 docket ID number identified above. demonstration of the continuous Any comments related to this ICR monitoring system (CMS). Owners or AGENCY: Environmental Protection should be submitted to EPA and OMB operators are also required to maintain Agency (EPA). within 30 days of this notice, and records of the occurrence and duration ACTION: Notice. according to the following detailed of any start-up, shutdown, or instructions: (1) Submit your comments malfunction in the operation of an SUMMARY: In compliance with the to EPA online using EDOCKET (our affected facility, or any period during Paperwork Reduction Act (44 U.S.C. preferred method), by e-mail to which the CMS is inoperative. CMS 3501 et seq.), this document announces [email protected], or by mail to: EPA requirements specific to coal that the following Information Docket Center, Environmental preparation plants provide information Collection Request (ICR) has been Protection Agency, Mail Code: 2201T, on the operation of the emissions forwarded to the Office of Management 1200 Pennsylvania Avenue, NW., control device and compliance with the and Budget (OMB) for review and Washington, DC 20460, and (2) mail opacity standard. Semiannual reports of approval: NSPS for Coal Preparation your comments to OMB at: Office of excess emissions are also required. Any Plants (40 CFR part 60, subpart Y), OMB Information and Regulatory Affairs, owner or operator subject to the rule Control Number 2060–0122, EPA ICR Office of Management and Budget shall maintain a file of these Number 1062.08. The ICR, which is (OMB), Attention: Desk Officer for EPA, measurements, and retain the file for at abstracted below, describes the nature of 725 17th Street, NW., Washington, DC least two years following the date of the information collection and its 20503. such measurements, maintenance estimated burden and cost. EPA’s policy is that public comment, reports, and records. DATES: Additional comments may be whether submitted electronically or on Responses to this information submitted on or before April 7, 2003. paper, will be available for public collection are deemed to be mandatory, ADDRESSES: Follow the detailed viewing in EDOCKET, as EPA receives per section 114(a) of the Clean Air Act. instructions under SUPPLEMENTARY them without change, unless the The required information consists of INFORMATION. comment contains copyrighted material, emissions data and other information Confidential Business Information (CBI), that have been determined not to be FOR FURTHER INFORMATION CONTACT: Dan or other information whose public private. However, any information Chadwick, Compliance Assessment and disclosure is restricted by statute. When submitted to the Agency for which a Media Programs Division, Office of EPA identifies a comment containing claim of confidentiality is made will be Compliance, Mail Code 2223A, copyrighted material, EPA will provide safeguarded according to the Agency Environmental Protection Agency, 1200 a reference to that material in the policies set forth in Title 40, Chapter 1, Pennsylvania Ave., NW., Washington, version of the comment placed in part 2, Subpart B—Confidentiality of DC 20460; telephone number (202) 564– EDOCKET. The entire printed comment, Business Information (see 40 CFR part 2; 7054; fax number (202) 564–0050; e- including copyrighted material, will be 41 FR 36902, September 1, 1976; mail address [email protected]. available in the public docket. Although amended by 43 FR 40000, September 8, SUPPLEMENTARY INFORMATION: EPA has identified as an item in the official 1978; 43 FR 42251, September 20, 1978; submitted the following ICR to OMB for docket, information claimed as CBI, or 44 FR 17674, March 23, 1979). review and approval according to the whose disclosure is otherwise restricted An agency may not conduct or procedures prescribed in 5 CFR 1320.12. by statute, is not included in the official sponsor, and a person is not required to On December 9, 2002 ( 67 FR 72942), public docket, and will not be available respond to, a collection of information EPA sought comments on this ICR for public viewing in EDOCKET. For unless it displays a currently valid OMB pursuant to 5 CFR 1320.8(d). EPA further information about the electronic Control Number. The OMB Control received no comments. docket, see EPA’s notice describing the Numbers for EPA’s regulations are listed EPA has established a public docket electronic docket at 67 FR 38102 (May in 40 CFR part 9 and 48 CFR chapter 15, for this ICR under Docket ID Number 31, 2002), or go to http://www.epa.gov/ and are identified on the form and/or OECA–2003–0004, which is available edocket. instrument, if applicable. for public viewing at the Enforcement Title: NSPS for Coal Preparation Burden Statement: The annual public and Compliance Docket and Information Plants (40 CFR part 60, subpart Y), OMB reporting and recordkeeping burden for Center in the EPA Docket Center (EPA/ Control Number 2060–0122, EPA ICR this collection of information is DC), EPA West, Room B102, 1301 Number 1062.08. This is a request to estimated to average about 14 hours per Constitution Avenue, NW., Washington, renew an existing, approved collection response. Burden means the total time, DC. The EPA Docket Center Public that is scheduled to expire on February effort, or financial resources expended Reading Room is open from 8:30 a.m. to 28, 2003. Under OMB regulations, the by persons to generate, maintain, retain, 4:30 p.m., Monday through Friday, Agency may continue to conduct or or disclose or provide information to or excluding legal holidays. The telephone sponsor the collection of information for a Federal agency. This includes the number for the Reading Room is (202) while this submission is pending at time needed to review instructions; 566–1744, and the telephone number for OMB. develop, acquire, install, and utilize the Enforcement and Compliance Abstract: Owners or operators of coal technology and systems for the purposes Docket and Information Center is (202) preparation plants must make certain of collecting, validating, and verifying 566–1514. An electronic version of the one-time-only notifications including: information, processing and

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maintaining information, and disclosing ICR, which is abstracted below, (OMB), Attention: Desk Officer for EPA, and providing information; adjust the describes the nature of the information 725 17th Street, NW., Washington, DC existing ways to comply with any collection and its estimated burden and 20503. previously applicable instructions and cost. EPA’s policy is that public comments, requirements; train personnel to be able DATES: Additional comments must be whether submitted electronically or in to respond to a collection of submitted on or before April 7, 2003. paper, will be made available for public information; search data sources; ADDRESSES: Follow the detailed viewing in EDOCKET as EPA receives complete and review the collection of instructions in SUPPLEMENTARY them without change, unless the information; and transmit or otherwise INFORMATION. comment contains copyrighted material, disclose the information. CBI, or other information whose public FOR FURTHER INFORMATION CONTACT: Dan Respondents/Affected Entities: disclosure is restricted by statute. When Chadwick, Compliance Assessment and Owners or operators of coal preparation EPA identifies a comment containing Media Programs Division, Office of plants which process more than 200 copyrighted material, EPA will provide Compliance, Mail Code 2223A, tons of coal per day. a reference to that material in the Environmental Protection Agency, 1200 Estimated Number of Respondents: version of the comment that is placed in Pennsylvania Ave., NW., Washington, 616. EDOCKET. The entire printed comment, DC 20460; telephone number (202) 564– Frequency of Response: including the copyrighted material, will 7054; fax number (202) 564–0050; e- Semiannually. be available in the public docket. mail address [email protected]. Estimated Total Annual Hour Burden: Although identified as an item in the SUPPLEMENTARY INFORMATION: 17,162 hours. EPA has official docket, information claimed as Estimated Total Capital and submitted the following ICR to OMB for CBI, or whose disclosure is otherwise Operations & Maintenance (O & M) review and approval according to the restricted by statute, is not included in Annual Costs: $21,700 which includes procedures prescribed in 5 CFR 1320.12. the official public docket, see EPA’s $0 annualized capital/startup costs and On June 20, 2002 (67 FR 41981), EPA Federal Register notice describing the $21,700 annual O&M costs. sought comments on this ICR pursuant electronic docket at 67 FR 38102 (May Changes in the Estimates: There is to 5 CFR 1320.8(d). EPA received no 31, 2002), or go to http://www.epa.gov/ comments. increase of 1,699 hours in the total edocket. EPA has established a public docket estimated burden currently identified in Title: NSPS for Industrial- for this ICR under Docket ID No. OECA– the OMB Inventory of Approved ICR Commercial-Institutional Steam 2002–0017, which is available for public Generating Units (40 CFR part 60, Burdens. This increase is due to more viewing at the Enforcement and accurate accounting of existing sources subpart Db), OMB Control Number Compliance Docket and Information 2060–0072, EPA ICR Number 1088.10. subject to NSPS Subpart Y and an Center in the EPA Docket Center (EPA/ adjustment in the reporting frequency. This is a request to renew an existing DC), EPA West, Room B102, 1301 approved collection that is scheduled to Dated: February 25, 2003 Constitution Ave., NW., Washington, expire on February 28, 2003. Under the Oscar Morales, DC. The EPA Docket Center Public OMB regulations, the Agency may Director, Collection Strategies Division. Reading Room is open from 8:30 a.m. to continue to conduct or sponsor the [FR Doc. 03–5312 Filed 3–5–03; 8:45 am] 4:30 p.m., Monday through Friday, collection of information while this BILLING CODE 6560–50–P excluding legal holidays. The telephone submission is pending at OMB. number for the Reading Room is (202) Abstract: Owners or operators of 566–1744, and the telephone number for steam generating units subject to ENVIRONMENTAL PROTECTION the Enforcement and Compliance Subpart Db must make one-time-only AGENCY Docket and Information Center is (202) notifications of construction/ 566–1514. An electronic version of the reconstruction, anticipated and actual [OECA–2002–0017; FRL–7458–1] public docket is available through EPA startup, initial performance test, Agency Information Collection Dockets (EDOCKET) at http:// physical or operational changes, and Activities: Submission for OMB Review www.epa.gov/edocket. Use EDOCKET to demonstration of a continuous and Approval; Comment Request; submit or view public comments, access monitoring system. They must also NSPS for Industrial-Commercial- the index listing of the contents of the submit reports on initial performance Institutional Steam Generating Units public docket, and to access those test results, monitoring results, and (40 CFR Part 60, Subpart Db), ICR No. documents in the public docket that are excess emissions. Records must be 1088.10, OMB No. 2060–0072 available electronically. Once in the maintained of startups, shutdowns, system, select ‘‘search,’’ then key in the malfunctions, and periods when the AGENCY: Environmental Protection docket ID number identified above. continuous monitoring system is Agency (EPA). Any comments related to this ICR inoperative, and of various fuel ACTION: Notice. should be submitted to EPA and OMB combustion and pollutant emission within 30 days of this notice, and parameters. SUMMARY: In compliance with the according to the following detailed The required notifications are used to Paperwork Reduction Act (44 U.S.C. instructions: (1) Submit your comments inform the Agency or delegated 3501 et seq.), this document announces to EPA online using EDOCKET (our authority when a source becomes that the following Information preferred method), by e-mail to subject to the standard. Performance test Collection Request (ICR) has been [email protected], or by mail to EPA reports are needed as these are the forwarded to the Office of Management Docket Center, Environmental Agency’s record of a source’s initial and Budget (OMB) for review and Protection Agency, Mailcode: 2223A, capability to comply with the emission approval: NSPS for Industrial- 1200 Pennsylvania Ave., NW., standard, and serve as a record of the Commercial-Institutional Steam Washington, DC 20460, and (2) Mail operating conditions under which Generating Units (40 CFR part 60, your comments to OMB at: Office of compliance was achieved. The subpart Db), OMB Control Number Information and Regulatory Affairs, monitoring and excess emissions reports 2060–0072, EPA ICR No. 1088.10. The Office of Management and Budget are used for problem identification, as a

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check on source operation and Estimated Total Annual Hour Burden: On June 20, 2002 (67 FR 41981), EPA maintenance, and for compliance 591,389. sought comments on this ICR pursuant determinations. The information Estimated Total Annual Cost: to 5 CFR 1320.8(d). EPA received no collected from recordkeeping and $59,384,435, includes $9,000,000 comments. reporting requirements are used for annualized capital and $17,775,000 EPA has established a public docket targeting inspections, and for other uses O&M costs. for this ICR under Docket ID Number in compliance and enforcement Changes in the Estimates: There is an OECA–2003–0001, which is available programs. The frequency of electronic increase of 16,356 hours in the total for public viewing at the Enforcement reporting is quarterly. Otherwise, estimated burden currently identified in and Compliance Docket and Information reporting frequency is semiannual. the OMB Inventory of Approved ICR Center (ECDIC) in the EPA Docket Responses to this information Burdens. This increase is due to an Center (EPA/DC), EPA West, Room collection are deemed to be mandatory, increase in the size of the regulated B102, 1301 Constitution Ave., NW., per section 114(a) of the Clean Air Act. universe. Washington, DC. The EPA Docket The required information consists of Dated: February 26, 2003. Center Public Reading Room is open emissions data and other information from 8:30 a.m. to 4:30 p.m., Monday Oscar Morales, through Friday, excluding federal that have been determined not to be Director, Collection Strategies Division. private. However, any information holidays. The telephone number for the [FR Doc. 03–5313 Filed 3–5–03; 8:45 am] submitted to the Agency for which a Reading Room is (202) 566–1744, and claim of confidentiality is made will be BILLING CODE 6560–50–P the telephone number for the safeguarded according to the Agency Enforcement and Compliance Docket policies set forth in Title 40, Chapter 1, and Information Center (ECDIC) is (202) ENVIRONMENTAL PROTECTION 566–1514. An electronic version of the part 2, subpart B—Confidentiality of AGENCY Business Information (see 40 CFR part 2; public docket is available through EPA 41 FR 36902, September 1, 1976; [OECA–2003–0001; FRL–7458–2] Dockets (EDOCKET) at http:// amended by 43 FR 40000, September 8, www.epa.gov/edocket. Use EDOCKET to 1978; 43 FR 42251, September 20, 1978; Agency Information Collection submit or view public comments, access 44 FR 17674, March 23, 1979). Activities; Submission for EPA ICR No. the index listing of the contents of the An agency may not conduct or 1847.03, OMB No. 2060–0390 to OMB public docket, and to access those sponsor, and a person is not required to for Review and Approval; Comment documents in the public docket that are respond to, a collection of information Request available electronically. Once in the unless it displays a currently valid OMB system, select ‘‘search,’’ then key in the AGENCY: Environmental Protection docket identification number identified control number. The OMB control Agency (EPA). above. numbers for EPA’s regulations are listed ACTION: Notice. Any comments related to this ICR in 40 CFR part 9 and 48 CFR chapter 15, should be submitted to EPA and OMB and are identified on the form and/or SUMMARY: In compliance with the within 30 days of this notice, and instrument, if applicable. Paperwork Reduction Act (44 U.S.C. according to the following detailed Burden Statement: The annual public 3501 et seq.), this document announces instructions: (1) Submit your comments reporting and recordkeeping burden for that the following Information to EPA online using EDOCKET (our this collection of information is Collection Request (ICR) has been preferred method), by e-mail to estimated to average 200 hours per forwarded to the Office of Management [email protected], or by mail to: EPA response. Burden means the total time, and Budget (OMB) for review and Docket Center, Environmental effort, or financial resources expended approval: Federal Plan Recordkeeping Protection Agency, Mailcode: 2201T, by persons to generate, maintain, retain, and Reporting Requirements for Large 1200 Pennsylvania Ave., NW., or disclose or provide information to or Municipal Waste Combustors Washington, DC 20460, and (2) mail for a Federal agency. This includes the Constructed on or Before September 20, your comments to OMB at: Office of time needed to review instructions; 1994 (40 CFR part 62, subpart FFF). Information and Regulatory Affairs, develop, acquire, install, and utilize This ICR describes the nature of the Office of Management and Budget, technology and systems for the purposes information collection and its estimated Attention: Desk Officer for EPA, 725 of collecting, validating, and verifying burden and cost burden and cost. 17th Street, NW., Washington, DC information, processing and DATES: Additional comments may be 20503. maintaining information, and disclosing submitted on or before April 7, 2003. EPA’s policy is that public comments, and providing information; adjust the ADDRESSES: Follow the detailed whether submitted electronically or in existing ways to comply with any instructions in the SUPPLEMENTARY paper, will be made available for public previously applicable instructions and INFORMATION. viewing in EDOCKET as EPA receives requirements; train personnel to them and without change, unless the respond to a collection of information; FOR FURTHER INFORMATION CONTACT: comment contains copyrighted material, search data sources; complete and Jonathan Binder, Compliance Assistance confidential business information (CBI), review the collection of information; and Sector Programs Division, Office of or other information whose public and transmit or otherwise disclose the Compliance, Mail Code 2224A, 202– disclosure is restricted by statute. When information. 564–2516 Environmental Protection EPA identifies a comment containing Respondents/Affected Entities: Agency, 1200 Pennsylvania Ave., NW., copyrighted material, EPA will provide Owners or operators of fossil-fuel-fired Washington, DC 20460; fax number: a reference to that material in the steam generating units subject to 202–564–0009; e-mail address: version of the comment that is placed in Subpart Db. [email protected]. EDOCKET. The entire printed comment, Estimated Number of Respondents: SUPPLEMENTARY INFORMATION: EPA has including the copyrighted material, will 1,230. submitted the following ICR to OMB for be available in the public docket. Frequency of Response: Semi- review and approval according to the Although identified as an item in the annually, Quarterly for electronic. procedures prescribed in 5 CFR 1320.12. official docket, information claimed as

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CBI, or whose disclosure is otherwise technology and systems for the purposes DATES: Additional comments may be restricted by statute, is not included in of collecting, validating, and verifying submitted on or before April 7, 2003. the official public docket, and will not information, processing and ADDRESSES: Follow the detailed be available for public viewing in maintaining information, and disclosing instructions in SUPPLEMENTARY EDOCKET. For further information and providing information; adjust the INFORMATION. about the electronic docket, see EPA’s existing ways to comply with any FOR FURTHER INFORMATION CONTACT: Federal Register notice describing the previously applicable instructions and Valerie Martin, Municipal Support electronic docket at 67 FR 38102 (May requirements; train personnel to be able Division, Office of Wastewater 31, 2002), or go to www.epa.gov/ to respond to a collection of Management, Mailcode 4204M, edocket. information; search data sources; Environmental Protection Agency, 1200 Title: Federal Plan Requirements for complete and review the collection of Pennsylvania Ave., NW., Washington, Large Municipal Waste Combustors information; and transmit or otherwise DC 20460; telephone number: (202) Constructed on or before September 20, disclose the information. 564–0623; fax number: (202) 501–2396; 1994 (40 CFR part 62, subpart FFF) Respondents/Affected Entities: e-mail address: [email protected]. (OMB Control No. 2060–0390, EPA ICR Owners and Operators of Large SUPPLEMENTARY INFORMATION: EPA has No. 1847.03). This is a request to renew Municipal Waste Combustors. submitted the following ICR to OMB for an existing approved collection that is Estimated Average Number of review and approval according to the scheduled to expire on March 31, 2003. Respondents: 14. procedures prescribed in 5 CFR 1320.12. Under the OMB regulations, EPA may Frequency of Response: Quarterly, On September 26, 2002 (67 FR 60679), continue to conduct or sponsor the semi-annually, and annually. EPA sought comments on this ICR collection of information while this Estimated Total Annual Hour Burden: pursuant to 5 CFR 1320.8(d). EPA submission is pending at OMB. 39,067. received no comments. Abstract: Municipal Solid Waste Estimated Total Annual Operations Combustors (MWC) with a capacity to EPA has established a docket for this and Maintenance Cost: $402,617. ICR under Docket ID No. OW–2002– combust greater than 250 tons per day Changes in the Estimates: There is a if construction was commenced on or 0069, which is available for public decrease of 19,848 hours in the total viewing at the Water Docket in the EPA before September 20, 1994 and that are estimated burden currently identified in not located in areas covered by an EPA- Docket Center (EPA/DC), EPA West, the OMB Inventory of Approved ICR Room B102, 1301 Constitution Ave., approved and currently effective State Burdens. This decrease is due to a or Tribal Plan are subject to specific NW., Washington, DC. The EPA Docket reduction in the number of affected Center Public Reading Room is open reporting and recordingkeeping respondents as indicted by a recent requirements. Notification reports are from 8:30 a.m. to 4:30 p.m., Monday source inventory analysis and the through Friday, excluding legal required for one-time-only reports expectation that EPA-approved and related to initial performance test data holidays. The telephone number for the effective State Plans will cover Reading Room is (202) 566–1744, and and continuous measurements of site- additional respondents. specific operating parameters. the telephone number for the Water Quarterly, semi-annual and annual Dated: February 23, 2003. Docket is (202) 566–2426. An electronic compliance reports are required related Oscar Morales, version of the public docket is available to a variety of site-specific operating Director, Collection Strategies Division. through EPA Dockets (EDOCKET) at parameters, including exceedances of [FR Doc. 03–5314 Filed 3–5–03; 8:45 am] http://www.epa.gov/edocket. Use applicable limits. Semi-annual BILLING CODE 6560–50–P EDOCKET to submit or view public compliance reports are required related comments, access the index listing of to emission rate or operating parameter the contents of the public docket, and to data that were not obtained when ENVIRONMENTAL PROTECTION access those documents in the public exceedances of applicable limits AGENCY docket that are available electronically. occurred. Affected entities must retain Once in the system, select ‘‘search,’’ [OW–2002–0069; FRL–7459–1] records for five years that are required then key in the docket ID number under 40 CFR part 62, §§ 62.14109(a), Agency Information Collection identified above. 62.39b(a) and 40 CFR part 60, § 60.59b. Activities; Proposed Collection; Any comments related to this ICR An agency may not conduct or Comment Request; (OMB Control No. should be submitted to EPA and OMB sponsor, and a person is not required to 2040–0164, EPA ICR No. 1654.04) within 30 days of this notice, and respond to, a collection of information according to the following detailed unless it displays a currently valid OMB AGENCY: Environmental Protection instructions: (1) Submit your comments control number. The OMB control Agency (EPA). to EPA online using EDOCKET (our numbers for EPA’s regulations are listed ACTION: Notice. preferred method), by e-mail to OW- in 40 CFR part 9 and 48 CFR chapter 15, [email protected], or by mail to: EPA and are identified on the form and/or SUMMARY: In compliance with the Docket Center, Environmental instrument, if applicable. Paperwork Reduction Act (44 U.S.C. Protection Agency, Mailcode: 4101T, Burden Statement: The annual public 3501 et seq.), this document announces 1200 Pennsylvania Ave., NW., reporting and recordkeeping burden for that the following Information Washington, DC 20460, and (2) Mail this collection of information is Collection Request (ICR) has been your comments to OMB at: Office of estimated to average 399 hours per forwarded to the Office of Management Information and Regulatory Affairs, response. Burden means the total time, and Budget (OMB) for review and Office of Management and Budget effort, or financial resources expended approval: Reporting Requirements (OMB), Attention: Desk Officer for EPA, by persons to generate, maintain, retain, Under EPA’s Water Alliances for 725 17th Street, NW., Washington, DC or disclose or provide information to or Voluntary Efficiency (WAVE) Program . 20503. for a Federal agency. This includes the The ICR describes the nature of the EPA’s policy is that public comments, time needed to review instructions; information collection and its estimated whether submitted electronically or in develop, acquire, install, and utilize burden and cost. paper, will be made available for public

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viewing in EDOCKET as EPA receives pollutant loads. Second, less water used information; and transmit or otherwise them and without change, unless the means that less energy will be used to disclose the information. comment contains copyrighted material, treat, transport, and heat drinking water Respondents/Affected Entities: CBI, or other information whose public and to transport and treat wastewater. Commercial businesses or institutions. disclosure is restricted by statute. When To the extent that the reduced energy Estimated Number of Respondents: EPA identifies a comment containing use so achieved is electrical energy, 136. copyrighted material, EPA will provide power plant emissions are reduced. Frequency of Response: Annual. a reference to that material in the Water efficiency also causes less water Estimated Total Annual Hour Burden: version of the comment that is placed in to be withdrawn and helps preserve 389 hours. EDOCKET. The entire printed comment, streamflow to maintain a healthy Estimated Total Annual Cost: including the copyrighted material, will aquatic environment; in addition, less $28,974, includes $0 of capital startup be available in the public docket. pumping of groundwater lowers the and O&M costs. Although identified as an item in the chance that pollutants that may be in Changes in the Estimates: There is a official docket, information claimed as the groundwater will be drained into a decrease of 2,167 hours in the total CBI, or whose disclosure is otherwise water supply well. estimated burden currently identified in restricted by statute, is not included in EPA uses the information to maintain the OMB Inventory of Approved ICR the official public docket, and will not a profile of program membership and to Burdens. This decrease is due to be available for public viewing in monitor the success of the program, simplification of the reporting process EDOCKET. For further information demonstrate that pollution prevention and more accurate projections of new about the electronic docket, see EPA’s can be accomplished with a non- participants. Federal Register notice describing the regulatory approach, and to promote the Dated: February 26, 2003. electronic docket at 67 FR 38102 (May program to potential partners. 31, 2002), or go to http://www.epa.gov/ Participation in the WAVE Program is Oscar Morales, edocket. voluntary; however, a participant joins Director, Collection Strategies Division. Title: Reporting Requirements Under the program by signing and submitting [FR Doc. 03–5323 Filed 3–5–03; 8:45 am] EPA’s Water Alliances for Voluntary a Membership Agreement and an annual BILLING CODE 6560–50–P Efficiency (WAVE) Program (OMB Results Report to EPA to receive and Control No. 2040–0164, EPA ICR No. retain program benefits, such as 1654.04). This is a request to renew an software and publicity. No participant is ENVIRONMENTAL PROTECTION existing approved collection that is required to submit confidential business AGENCY scheduled to expire on March 31, 2003. information. EPA maintains and [SFUND–2003–0003, FRL–7459–8] Under the OMB regulations, the Agency distributes a list of program may continue to conduct or sponsor the participants, and presents aggregated Agency Information Collection collection of information while this data only in its program progress Activities: Proposed Collection; submission is pending at OMB. reports. Comment Request; Trade Secret Abstract: EPA initially collects facility An agency may not conduct or Claims for Community Right-to-Know information and thereafter annually sponsor, and a person is not required to and Emergency Planning (EPCRA collects water, energy, and cost savings respond to, a collection of information Section 322) information from participants in the unless it displays a currently valid OMB WAVE program. WAVE Partners are control number. The OMB control AGENCY: Environmental Protection commercial businesses or institutions numbers for EPA’s regulations are listed Agency, EPA. that voluntarily agree to implement in 40 CFR part 9 and 48 CFR chapter 15, ACTION: Notice. cost-effective water efficiency measures and are identified on the form and/or in their facilities. Initially the WAVE instrument, if applicable. SUMMARY: In compliance with the Program targeted the lodging industry, Burden Statement: The annual public Paperwork Reduction Act (44 U.S.C. but now includes office buildings, reporting and recordkeeping burden for 3501 et seq.), this document announces educational institutions and medical this collection of information is that EPA is planning to submit the facilities. Another type of participant, estimated to average about 3 hours per following continuing Information ‘‘Supporters,’’ works with EPA to Membership Agreement response, a Collection Request (ICR) to the Office of promote water efficiency. Supporters one-time submission, and 6 hours per Management and Budget (OMB): Trade are equipment manufacturers, water Results Report response, an annual Secret Claims for Community Right-to- management companies, utilities, state submission. Burden means the total Know and Emergency Planning (EPCRA and local governments, and the like. time, effort, or financial resources Section 322), EPA ICR No. 1428.06, The purpose of the WAVE Program is expended by persons to generate, OMB Control No. 2050–0078, Expiration pollution prevention. EPA and the maintain, retain, or disclose or provide date September 30, 2003. Before Pollution Prevention Act define information to or for a Federal agency. submitting the ICR to OMB for review pollution prevention as ‘‘source This includes the time needed to review and approval, EPA is soliciting reduction,’’ and other practices that instructions; develop, acquire, install, comments on specific aspects of the reduce or eliminate the creation of and utilize technology and systems for proposed information collection as pollutants through increased efficiency the purposes of collecting, validating, described below. in the use of raw materials, energy, and verifying information, processing DATES: Comments must be submitted on water, or other resources, or through and maintaining information, and or before May 5, 2003. protection of natural resources by disclosing and providing information; conservation. By promoting water adjust the existing ways to comply with ADDRESSES: Follow the detailed efficiency, WAVE prevents pollution in any previously applicable instructions instructions in SUPPLEMENTARY two basic ways. First, wastewater flows and requirements; train personnel to be INFORMATION. are reduced which can increase able to respond to a collection of FOR FURTHER INFORMATION CONTACT: Sicy treatment efficiency at wastewater information; search data sources; Jacob, Chemical Emergency treatment plants resulting in reduced complete and review the collection of Preparedness and Prevention Office,

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Mail Code 5104A, Environmental Federal Register notice describing the request trade secrecy treatment of Protection Agency, 1200 Pennsylvania electronic docket at 67 FR 38102 (May chemical identities, as well as the Ave., NW., Washington, DC 20460; 31, 2002), or go to www.epa.gov/ procedures for submitting public telephone number: (202) 564–8019; fax edocket. petitions to the Agency for review of the number: (202) 564–8233; e-mail address: Affected entities: Entities potentially ‘‘sufficiency’’ of trade secrecy claims. [email protected]. affected by this action are both Trade secrecy protection is provided SUPPLEMENTARY INFORMATION: EPA has manufacturing and non-manufacturing for specific chemical identities established a public docket for this ICR sectors for claims under sections 303, contained in reports submitted under under Docket ID number SFUND–2003– 311 and 312 of EPCRA. Section 313 each of the following EPCRA sections: 0003, which is available for public claims are submitted by covered sectors, (1) 303 (d)(2)—Facility notification of viewing at the Superfund Docket in the which, as of reporting year 2002, changes that have or are about to occur, EPA Docket Center (EPA/DC), EPA include, metal mining ((SIC code 10 (2) 303 (d)(3)—Local Emergency West, Room B102, 1301 Constitution (except 1011, 1081, and 1094)); coal Planning Committee (LEPC) requests for Ave., NW., Washington, DC. The EPA mining ((SIC code 12 (except 1241)); facility information to develop or Docket Center Public Reading Room is manufacturers (SIC codes 20–39); implement emergency plans, (3) 311— open from 8:30 a.m. to 4:30 p.m., electric utilities (SIC codes 4911 Material Safety Data Sheets (MSDSs) Monday through Friday, excluding legal (limited to facilities that combust coal submitted by facilities, or lists of those holidays. The telephone number for the and/or oil for the purpose of generating chemicals submitted in place of the electricity for distribution in Reading Room is (202) 566–1744, and MSDSs, (4) 312—Tier II emergency and commerce), 4931 (limited to facilities the telephone number for the Docket is hazardous chemical inventory forms, that combust coal and/or oil for the (202) 566–0276. An electronic version of and (5) 313 Toxic chemical release purpose of generating electricity for the public docket is available through inventory forms. distribution in commerce), and 4939 EPA Dockets (EDOCKET) at http:// An agency may not conduct or (limited to facilities that combust coal www.epa.gov/edocket. Use EDOCKET to sponsor, and a person is not required to and/or oil for the purpose of generating obtain a copy of the draft collection of respond to, a collection of information electricity for distribution in information, submit or view public unless it displays a currently valid OMB commerce)); commercial hazardous comments, access the index listing of control number. The OMB control waste treatment (SIC code 4953 (limited the contents of the public docket, and to numbers for EPA’s regulations are listed to facilities regulated under the RCRA in 40 CFR part 9 and 48 CFR chapter 15. access those documents in the public Subtitle C, 42 U.S.C. section 6921 et docket that are available electronically. The EPA would like to solicit seq.)); chemical and allied products- comments to: Once in the system, select ‘‘search,’’ wholesale (SIC code 5169); petroleum then key in the docket ID number (i) Evaluate whether the proposed bulk terminals and plants (also known collection of information is necessary for the identified above. as stations)-wholesale (SIC code 5171); Any comments related to this ICR proper performance of the functions of the and, solvent recovery services (SIC code agency, including whether the information should be submitted to EPA and OMB 7389 (limited to facilities primarily will have practical utility; within 60 days of this notice, and engaged in solvents recovery services on (ii) Evaluate the accuracy of the agency’s according to the following detailed a contract or fee basis)). In addition, estimate of the burden of the proposed instructions: (1) Submit your comments federal facilities were added to the collection of information, including the to EPA online using EDOCKET (our respondent community by Executive validity of the methodology and assumptions preferred method), by e-mail to used; Order 12856, and were required to (iii) Enhance the quality, utility, and clarity [email protected], or by mail report beginning calendar year 1994. to: EPA Docket Center, Environmental of the information to be collected; and Title: Trade Secret Claims for (iv) Minimize the burden of the collection Protection Agency, Superfund Docket, Community Right-to-Know and of information on those who are to respond, Mail Code 5202T, 1200 Pennsylvania Emergency Planning (EPCRA Section including through the use of appropriate Ave., NW., Washington, DC 20460. 322), OMB Control Number 2050–0078, automated electronic, mechanical, or other EPA’s policy is that public comments, EPA ICR Number 1428.06, expiring 09/ technological collection techniques or other whether submitted electronically or in 30/03. forms of information technology, e.g., paper, will be made available for public Abstract: This information collection permitting electronic submission of viewing in EDOCKET as EPA receives request pertains to trade secrecy claims responses. them and without change, unless the submitted under Section 322 of the Burden Statement: The annual public comment contains copyrighted material, Emergency Planning and Community reporting and recordkeeping burden for CBI, or other information whose public Right-to-Know Act of 1986 (EPCRA). this collection of information is disclosure is restricted by statute. When EPCRA contains provisions requiring estimated to average 9.9 hours per EPA identifies a comment containing facilities to report to State and local claim. The total annual burden for the copyrighted material, EPA will provide authorities, and EPA, the presence of respondents is 3,483 hours at a cost of a reference to that material in the extremely hazardous substances $147,543. Burden means the total time, version of the comment that is placed in (described in Section 302), inventory of effort, or financial resources expended EDOCKET. The entire printed comment, hazardous chemicals (described in by persons to generate, maintain, retain, including the copyrighted material, will Sections 311 and 312) and manufacture, or disclose or provide information to or be available in the public docket. process and use of toxic chemicals for a Federal agency. This includes the Although identified as an item in the (described in Section 313). Section 322 time needed to review instructions; official docket, information claimed as of EPCRA allows a facility to withhold develop, acquire, install, and utilize CBI, or whose disclosure is otherwise the specific chemical identity from technology and systems for the purposes restricted by statute, is not included in these EPCRA reports if the facility of collecting, validating, and verifying the official public docket, and will not asserts a claim of trade secrecy for that information, processing and be available for public viewing in chemical identity. The provision maintaining information, and disclosing EDOCKET. For further information establishes the requirements and and providing information; adjust the about the electronic docket, see EPA’s procedures that facilities must follow to existing ways to comply with any

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previously applicable instructions and Comment Submission: Comments on available health benchmarks and typical requirements; train personnel to be able the ERD may be mailed to the Technical background concentrations for New to respond to a collection of Information Staff, NCEA–W (8623D), York City or other urban areas. The draft information; search data sources; U.S. Environmental Protection Agency, evaluation concludes that, with the complete and review the collection of Washington, DC 20460; telephone: (202) exception of those exposed immediately information; and transmit or otherwise 564–3261; facsimile: (202) 565–0050. following the collapse and perhaps disclose the information. Comments should be in writing. Please during the next few days, people in the Dated: February 26, 2003. submit one unbound original with pages surrounding community are not likely Deborah Y. Dietrich, numbered consecutively, and three to suffer from serious long-or short-term copies of the comments. For health effects. Director, Chemical Emergency Preparedness While the primary focus of EPA’s and Prevention Office. attachments, provide an index, number pages consecutively with the comments, draft evaluation is on outdoor levels of [FR Doc. 03–5327 Filed 3–5–03; 8:45 am] and submit an unbound original and various air pollutants to which the BILLING CODE 6560–50–P three copies. Electronic comments may public could potentially be exposed as be e-mailed to: a result of the collapse of the towers, ENVIRONMENTAL PROTECTION [email protected]. some information on indoor and occupational exposures is summarized. AGENCY Please note that all technical comments received in response to this The incursion of dust and other [FRL–7459–3] notice will be placed in a public record. contaminants into residences and For that reason, commentors should not buildings is being addressed via a Draft Exposure and Human Health submit personal information (such as number of other studies initiated in Evaluation of Airborne Pollution from medical data or home address), conjunction with the plans by EPA and the World Trade Center Disaster Confidential Business Information, or its federal, state, and city partners to AGENCY: Environmental Protection information protected by copyright. Due clean up residences impacted by the Agency. to limited resources, acknowledgments collapse of the World Trade Center. The draft report also includes a ACTION: Notice of extension of public will not be sent. discussion of rodent respiratory comment period. FOR FURTHER INFORMATION CONTACT: For information on the public comment toxicology studies, conducted by EPA SUMMARY: The U.S. Environmental period, contact the Technical scientists, that exposed mice to fallen Protection Agency’s (EPA) Office of Information Staff of the National Center dust samples collected at or near Research and Development (ORD) is for Environmental Assessment- Ground Zero on September 12 and 13, announcing the extension of the public Washington, telephone: (202) 564–3261; 2001. The purpose of these studies was comment period for the external review facsimile: (202) 565–0050; e-mail: to evaluate the toxicity of fine draft (ERD) document, Exposure and [email protected]. particulate matter dust on the Human Health Evaluation of Airborne respiratory tract of mice and to compare SUPPLEMENTARY INFORMATION: Pollution from the World Trade Center well-studied particulate matter Immediately following the September Disaster (EPA/600/P–02/002A, October reference samples, ranging from 11, 2001, terrorist attack on New York 2002). This draft document was essentially inert to quite toxic, to those City’s World Trade Center, many federal prepared by ORD’s National Center for collected at the World Trade Center site. agencies, including the EPA, were Environmental Assessment (NCEA) These studies found that fine particles called upon to focus their technical and within the Office of Research and were dominated by calcium containing scientific expertise on the national Development. compounds derived from World Trade emergency issues. EPA, other federal Center building materials, and that a DATES: In the December 27, 2002, agencies, New York City, and New York high exposure to World Trade Center Federal Register (67 FR 79089), EPA State public health and environmental fine particulate matter could cause mild announced a limited comment period authorities focused on numerous air lung inflammation and airflow through February 25, 2003. The Agency monitoring activities to better obstruction in mice. These findings is now extending the public comment understand the ongoing human health suggest that a similarly high exposure in period to April 7, 2003. Technical impact of the disaster. Many EPA offices people could cause short-term comments should be in writing and and programs quickly became involved respiratory effects such as inflammation must be postmarked by April 7, 2003. with these activities, providing and cough. ADDRESSES: The primary distribution scientific, engineering, public health, Further, it is important to note that method for the ERD will be via ORD’s and management expertise to help cope while this ERD is undergoing public Web site at http://www.epa.gov/ncea/ with the aftereffects of the collapse of review and comment, a process of wtc.htm. This draft report, in PDF the World Trade Center. external independent expert scientific format, can be viewed and downloaded As part of these activities, a human peer review also is underway. These from the Internet for review and health evaluation of exposure to air review processes are the usual steps that comment. In addition, a limited number pollutants resulting from the World EPA takes to ensure full and open of CD-ROM and paper copies of the ERD Trade Center disaster was initiated. The participation by interested parties. are available by contacting the primary purpose and scope of this draft These steps also help EPA identify areas Technical Information Staff, NCEA-W report were to evaluate the where a draft document could be (8623D), U.S. Environmental Protection environmental levels of various air improved to strengthen both clarity and Agency, Washington, DC 20460; pollutants to which the public could completeness of the draft. Comments telephone: (202) 564–3261; facsimile: potentially be exposed as a result of the from the public and from the expert (202) 565–0050; e-mail: collapse of the towers. The draft report peer reviewers will be used to improve [email protected]. Please evaluates the measured outdoor levels the draft report before it is finalized. provide your name and mailing address, of various air pollutants to which the Finally, EPA scientists, in and the title and EPA number of the public potentially had been exposed. collaboration with other Federal and requested publication. These data were evaluated in terms of State environmental health

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professionals, as well as colleagues in released February 26, 2003. In this study is available on the Commission’s academia and medical institutions, will Public Notice, the Commission seeks Web site for downloading at http:// continue to analyze available data on comment on a staff study relating to www.fcc.gov/wcb/universal_service/ human exposures to environmental alternative methodologies for welcome.html. This spreadsheet will contaminants resulting from the World calculating contributions to the federal provide access to the formulas utilized Trade Center disaster. This continuing universal service support mechanisms. in the study and allow commenters to work will help us to better understand We urge commenters to comment on the observe how changes to assumptions the potential human health impacts. staff analysis of assessment levels under impact assessment levels and burdens. Dated: February 27, 2003. each approach and on the assumptions We recognize that estimates could differ underlying these projections. significantly if different assumptions are Art Payne, Commenters are encouraged to provide utilized. We invite commenters to Acting Director, National Center for their own estimates, projections, and submit their own data and reasoning Environmental Assessment. data supporting or refuting the supporting or disagreeing with the [FR Doc. 03–5322 Filed 3–5–03; 8:45 am] projections. various projections and assumptions. BILLING CODE 6560–50–P In the Report and Order and Second Comments submitted in response to this Further Notice, 67 FR 79525, December Public Notice shall be incorporated into 30, 2002, the Commission adopted the record for the Second Further FEDERAL COMMUNICATIONS interim measures to maintain the Notice. COMMISSION viability of universal service in the near Pursuant to §§ 1.415 and 1.419 of the [CC Docket Nos. 96–45, 98–171, 90–571, 92– term. In addition to seeking comment on Commission’s rules, interested parties 237, 99–200, 95–116, 98–170, NSD File No. whether to retain a revenue-based may file comments on or before March L–00–72; FCC 03–31] system, the Commission invited 31, 2003, and reply comments on or comment on specific aspects of three before April 18, 2003. Comments may Commission Seeks Comment on Staff connection-based proposals. The be filed using the Commission’s Study Regarding Alternative Commission first asked for comment on Electronic Comment Filing System Contribution Methodologies a proposed contribution methodology (ECFS) or by filing paper copies. that would impose a minimum Comments filed through the ECFS can AGENCY: Federal Communications contribution obligation on all interstate be sent as an electronic file via the Commission. telecommunications carriers and a flat Internet to . Generally, only one copy of comments. depending on the nature or capacity of an electronic submission must be filed. the connection. Next, the Commission If multiple docket or rulemaking SUMMARY: In this document, the sought comment on a proposal to assess numbers appear in the caption of this Commission seeks comment on a staff all connections based purely on proceeding, however, commenters must study relating to alternative capacity. Under this proposal, transmit one electronic copy of the methodologies for calculating contribution obligations for each comments to each docket or rulemaking contributions to the federal universal switched end-user connection would be number referenced in the caption. In service support mechanisms. We urge shared between access and transport completing the transmittal screen, commenters to comment on the staff providers. Finally, the Commission commenters should include their full analysis of assessment levels under each sought comment on a proposal to assess name, U.S. Postal Service mailing approach and on the assumptions providers of switched connections address, and the applicable docket or underlying these projections. based on their working telephone rulemaking number. Parties may also Commenters are encouraged to provide numbers. submit an electronic comment by their own estimates, projections, and To facilitate discussion and analysis Internet e-mail. To get filing instructions data supporting or refuting the of the various alternatives discussed in for e-mail comments, commenters projections. the Second Further Notice, Commission should send an e-mail to [email protected], DATES: Comments are due on or before staff has developed a working paper that and should include the following words March 31, 2003. Reply comments are estimates potential assessment levels in the body of the message, ‘‘get form due on or before April 18, 2003. under the newly modified revenue- .’’ A sample form ADDRESSES: All filings must be sent to based system and three connection- and directions will be sent in reply. the Commission’s Secretary: Marlene H. based proposals. The assumptions Parties who choose to file by paper Dortch, Office of the Secretary, Federal underlying the study are described in must file an original and four copies of Communications Commission, 445 12th the staff paper. The study, and its each filing. If more than one docket or Street, SW., Suite TW–A325, underlying assumptions were created rulemaking number appears in the Washington, DC 20554. See for the sole purpose of developing a caption of this proceeding, commenters must submit two additional copies for SUPPLEMENTARY INFORMATION for filing more detailed record addressing these instructions. issues in the docket, and do not each additional docket or rulemaking represent the policies or preferences of number. Filings can be sent by hand or FOR FURTHER INFORMATION CONTACT: the Commission, Commissioners, or the messenger delivery, by commercial Diane Law Hsu, Deputy Division Chief, staff. overnight courier, or by first-class or or Paul Garnett, Attorney, We seek comment on the study, as overnight U.S. Postal Service mail Telecommunications Access Policy well as its underlying assumptions. We (although we continue to experience Division, Wireline Competition Bureau, specifically ask commenters to analyze delays in receiving U.S. Postal Service (202) 418–7400, TTY: (202) 418–0484. the modeled assessment levels, burdens mail). The Commission’s contractor, SUPPLEMENTARY INFORMATION: This is a on residential and business customers, Vistronix, Inc., will receive hand- summary of the Commission’s Public and projected industry shares under delivered or messenger-delivered paper Notice in CC Docket Nos. 96–45, 98– each approach. To further assist filings for the Commission’s Secretary at 171, 90–571, 92–237, 99–200, 95–116, commenters in analyzing the study, the 236 Massachusetts Avenue, NE., Suite 98-170, and NSD File No. L–00–72 staff spreadsheet that generated the 110, Washington, DC 20002. The filing

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hours at this location are 8 a.m. to 7 employers and employer associations; distribution of printed materials that p.m. All hand deliveries must be held retail pharmacy and/or related will be used by state programs and together with rubber bands or fasteners. pharmacy associations; pharmaceutical community health centers responsible Any envelopes must be disposed of and medical device manufacturers and/ for implementing the initiative; before entering the building. or related associations; and other health- • Employers could adopt the project Commercial overnight mail (other than related organizations such as, hospitals and conduct detection clinics where U.S. Postal Service Express Mail and and hospital associations, managed care people at high risk of diabetes could be Priority Mail) must be sent to 9300 East plans, insurance companies providing identified, then referred for specific Hampton Drive, Capitol Heights, MD coverage for health care, and benefit diagnosis and followup if warranted; 20743. U.S. Postal Service first-class management organizations. Components • Hospitals could provide mail, Express Mail, and Priority Mail of HHS that will be involved in this professional resources to conduct should be addressed to 445 12th Street, initiative include the Office of Public detection clinics; SW., Washington, DC 20554. All filings Health and Science; the Office of the • Managed care plans could adopt the must be addressed to the Commission’s Assistant Secretary for Public Affairs; project and encourage their enrollees to Secretary, Marlene H. Dortch, Office of the Centers for Disease Control and have themselves assessed for risk and the Secretary, Federal Communications Prevention; the National Institutes of alter their lifestyles if the risk warrants; Commission. Health; the Health Resources and • Colleges and universities could Parties also must send three paper Services Administration; the Office of conduct detection events for their copies of their filing to Sheryl Todd, the Surgeon General; and the U.S. student populations; Telecommunications Access Policy Public Health Service Commissioned • Area agencies on aging could form Division, Wireline Competition Bureau, Corps. a component of a statewide program. Where a statewide program is not in Federal Communications Commission, DATES: Organizations and other entities 445 12th Street SW., Room 5–B540, place, partnering organizations such as interested in partnering with HHS in these could proceed on their own. Washington, DC 20554. In addition, furtherance of this initiative should commenters must send diskette copies submit notification of their intent by Dated: February 28, 2003. to the Commission’s copy contractor, close of business on April 21, 2003. Elizabeth Majestic, Qualex International, Portals II, 445 Acting Deputy Assistant Secretary for Health 12th Street, SW., Room CY–B402, ADDRESSES: Notifications of interest in partnering should be sent to Elizabeth (Disease Prevention and Health Promotion), Washington, DC 20554. This is a permit Department of Health and Human Services. but disclose rulemaking proceeding. Ex Majestic, M.P.H., Acting Director, Office of Disease Prevention and Health [FR Doc. 03–5269 Filed 3–5–03; 8:45 am] parte presentations are permitted, BILLING CODE 4150–32–P except during the Sunshine Agenda Promotion, Office of Public Health and period, provided that they are disclosed Science, Room 738–G, 200 as provided in the Commission’s rules. Independence Ave., SW., Washington, DEPARTMENT OF HEALTH AND DC 20201; (202) 401–6295 (telephone), HUMAN SERVICES Federal Communications Commission. 202–690–7054 (fax). Notifications may William F. Caton, also be submitted by electronic mail to Agency for Healthcare Research and Deputy Secretary. [email protected]. Quality [FR Doc. 03–5240 Filed 3–5–03; 8:45 am] FOR FURTHER INFORMATION CONTACT: Ellis BILLING CODE 6712–01–P Davis, Office of Disease Prevention and Agency Information Collection Health Promotion, Office of Public Activities: Proposed Collection; Health and Science, Room 738-G, 200 Comment Request Independence Ave., SW, Washington, DEPARTMENT OF HEALTH AND AGENCY: Agency for Healthcare Research HUMAN SERVICES DC 20201; (202) 260–2873 (telephone), and Quality, HHS. 202–690–7054 (fax), ACTION: Announcement of Establishment of the [email protected]. Notice. Diabetes Detection Program and SUPPLEMENTARY INFORMATION: SUMMARY: This notice announces the Solicitation of Partnering To further intention of the Agency for Healthcare Organizations implementation of the Diabetes Detection Program, HHS is seeking Research and Quality (AHRQ) to request AGENCY: Department of Health and partners to participate in the initiative the Office of Management and Budget Human Services, Office of the Secretary, in accordance with their particular (OMB) to allow the proposed Office of Public Health and Science. interests. For example, state governors, information collection project: ‘‘Needs ACTION: Notice. their health departments, and Assessment of Primary Care Practice- community health centers could initiate Based Research Networks (PBRNs).’’ In SUMMARY: The Department of Health and detection-based programs to reach those accordance with the Paperwork Human Services (HHS) announces the at highest risk for diabetes. Where Reduction Act of 1995, Public Law 104– establishment of the nationwide appropriate, other organizations and 13 (44 U.S.C. 3506(c)(2)(A)), AHRQ Diabetes Detection Program, an entities could collaborate with these invites the public to comment on this initiative to be carried out at the local state health department and community proposed information collection. level. HHS seeks both public and health center programs, as in the The proposed information collection private sector partnering organizations following examples: was previously published in the Federal to assist in implementation of the • Partnering organizations could Register on January 7, 2003 allowed 60 project. Potential partners include, but participate in a nationwide advertising Days for public comment. No public are not limited to: Professional campaign that would alert the American comments were received. The purpose organizations representing medicine, public to the opportunity for diabetes of this notice is to allow an additional nursing, pharmacy, and other health detection; 30 Days for public comment. related professions; diabetes-related • Partnering organizations could DATES: Comments on this notice must be nongovernmental organizations; large participate in the production or received by April 7, 2003.

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ADDRESSES: Written comments should The PBRNs are groups of primary care bioterrorism and other emerging public be submitted to: Allison Eydt, Human practices working together with health threats; Resources and Housing Branch, Office academic researchers to address • the ability to engage the network’s of Information and Regulatory Affairs, community-based health care research practicing clinicians and community OMB: New Executive Office Building, questions and to translate research representatives in the design, conduct Room 10235; Washington, DC 20503. findings into practice to improve health and dissemination of research studies; Comments submitted in response to care. AHRQ funded 36 PBRNs in • the ability to design and implement this notice will be summarized and September, 2002, as well as a Resource data collection instruments in clinician included in the request for OMB Center intended to provide technical settings; approval of the proposed information assistance and support to the PBRNs in • the mechanisms for supporting collection. All comments will become a their efforts to design and implement AHRQ’s central goal of assuring new matter of public record. research projects. It is expected that an research findings are translated into additional 24 PBRNs will be funded in everyday practice; and FOR FURTHER INFORMATION CONTACT: • Cynthia D. McMichael, AHRQ Reports 2003. In the proposed activities the their capacity for long-term Clearance Officer, (301) 594–3132. PBRN Resource Center will collect data sustainability. directly from each PBRN and their To obtain the necessary information, SUPPLEMENTARY INFORMATION: affiliated practices. The collection is a surveys and interviews will be Proposed Project needs assessment of each of the AHRQ conducted with PERN staff and staff funded PBRNs. The collection will members in each network’s ‘‘Needs Assessment of Primary Care identify how the Resource Center can participating practices. Practice-Based Research Networks best support these networks through the Method of Collection (PBRNs)’’ development and use of information The project is being conducted in technology, and by linking the PBRN’s Due to the relatively small number of response to an AHRQ RFP entitled with appropriate technical experts. organizations in the respondent ‘‘Resource Center for Primary Care The in-depth needs assessment of universe of AHRQ funded PBRNs, and Practice-Based Research Networks each PBRN will use written and web the expected diversity of needs, we will surveys and telephone interviews. Each survey all of the AHRQ funded PBRNs (PBRNs)’’ (issued under Contract 290– ≤ 02–0008). The Healthcare Research and need assessment will ascertain the (including those to be funded in 2003) Quality Act of 1999, amending section current capabilities of an individual The method of data collection for the 911(b) of Title IX of the Public Health PBRN in several respects, including: needs assessments consists of web- Service Act (42 U.S.C. 299 et seq.), • the ability to design and implement based and paper-based surveys and states that Agency for Healthcare appropriately rigorous and complex telephone interviews. We expect to Research and Quality will ‘‘employ research plans, including their access to involve multiple individuals from each research strategies and mechanisms that key resources such as validated PBRN in the data collection, including will link research directly with clinical instruments and competence the PBRN administrator, information practice in geographically diverse conducting advanced data analysis; technology personnel, and the PBRN’s locations * * * including provider- • the technical capacity for lead clinician as well as individuals based research networks’’. conducting data management tasks such with similar roles at the affiliated practice level. In order to assist the Agency for as aggregating research data across All individuals or networks unable to Healthcare Research and Quality networks, developing data files, and complete the survey via the Web will be (AHRQ), in meeting this goal, the warehousing data; sent a paper-based survey to complete Agency created an RFP that specifically • the ability to use information and return by mail. The Resource Center requires a resource center to ‘‘assess the technology to foster effective will data enter any surveys completed specific needs, if any, of each PBRN communication with affiliated practices by hand so that these responses can be awarded (by AHRQ)’’ by determining and with other research networks; included in the analyses. Non- ‘‘the stage of development of networks • the ability to address HHS priorities respondents will receive a telephone funded under the PBRN initiatives such as research involving populations reminder and, if necessary, sent an [AHRQ RFA–HS–02–003] and the of diverse race or ethnicity, additional survey. specific resource needs of each socioeconomic status, age, gender and network.’’ geography as well as preparedness for Estimated Annual Respondent Burden

Estimated time per re- Estimated Average Estimated Data collection effort Number of respondents spondent in total burden hourly wage annual cost hours hours rate

Needs assessment ...... 180 (maximum of three individuals from each of 60 1 180 *40.26 $7,246.80 PBRNs). Needs assessment ...... 720 (maximum of two individuals at member practices 0.5 360 **45.77 16,477.20 PBRNs)***.

Total ...... 900 ...... 0.6 540 * Based on the means of the average wages for manager in medicine and health, physicians, and computer systems analyst/scientist, National Comprehension Survey: Occupational Wages in the United States, 2000, ‘‘U.S. Department of Labor, Bureau of Labor Statistics, September 2001.’’ ** Based on the mean of the average wages for manager in medicine and health and physicians, ‘‘National Compensation Survey: Occupa- tional Wages in the United States 2000’’, U.S. Department of Labor, Bureau of Labor Statistics, September 2001’’. *** This estimate assumes that variation exists in the number of member practices that comprise each PBRN. Consequently, we will survey two individuals (the lead clinician and the administrator) at each of three member practices in 20 PBRNs, in 20 PBRNs we survey two individuals at each of six member practices, and in 20 PBRNs we survey two individuals at each of nine member practices.

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Estimated Annual Costs to the Federal Assistant Secretary for Health; and the between receiving rubella-containing Government Director, CDC, regarding new scientific vaccine and becoming pregnant has knowledge and technological developments The total cost to the government for been amended from 3 months to 4 and their practical implications for weeks, the vaccine information activities directly related to this childhood lead poisoning prevention efforts. collection is $432,451.000. The Committee shall also review and report materials covering measles, mumps and regularly on childhood lead poisoning rubella vaccine needed to be revised. On Request for Comments prevention practices and recommend October 10, 2002, CDC published a In accordance with the above cited improvements in national childhood lead notice in the Federal Register (67 FR legislation, comments on the AHRQ poisoning prevention efforts. 63106) seeking public comments on the information collection proposal are Matters to be Discussed: Agenda items proposed revised vaccine information requested with regard to any of the include: Updates on Primary Prevention materials for measles, mumps and following: (a) Whether the proposed issues, Medicaid Targeted Screening, Review rubella vaccines. The 60 day comment of Evidence for Effects at Blood Lead Levels period ended on December 9, 2002. collection of information is necessary <10 µg/dL issues, Screening of Immigrant/ for the proper performance of functions Adopted Children, and Study of Relationship Following review of the comments of the AHRQ, including whether the of Environmental Tobacco Smoke and Blood submitted and consultation as required information will have practical utility; Lead Levels. under the law, CDC has finalized these (b) the accuracy of the AHRQ’s estimate Agenda items are subject to change as vaccine information materials. The final of the burden (including hours and priorities dictate. materials, and revised instructions for costs) of the proposed collection of Opportunities will be provided during the their use and for use of materials for information; (c) ways to enhance the meeting for oral comments. Depending on the other covered vaccines, are contained in time available and the number of requests, it this notice. quality, utility, and clarity of the may be necessary to limit the time of each information to be collected; and (d) presenter. DATES: Beginning as soon as practicable, ways to minimize the burden of the Contact Person for More Information: each health care provider who collection of information on Crystal M. Gresham, Program Analyst, Lead administers any vaccine that contains respondents, including the use of Poisoning Prevention Branch, Division of measles, mumps or rubella vaccine automated collection techniques or Emergency and Environmental Health shall, prior to administration of each other forms of information technology. Services, NCEH, CDC, 1600 Clifton Road, dose of the vaccine, provide a copy of Comments submitted in response to NE., M/S F–30, Atlanta, Georgia 30333, the vaccine information materials this notice will be summarized and telephone 770/488–7490, fax 770/488–4178. The Director, Management Analysis and contained in this notice, dated January included in the request for OMB Services Office, has been delegated the 15, 2003, to the parent or legal approval of the proposed information authority to sign Federal Register notices representative of any child to whom collection. All comments will become a pertaining to announcements of meetings and such provider intends to administer the matter of public record. other committee management activities for vaccine and to any adult to whom such Dated: February 27, 2003. both the Centers for Disease Control and provider intends to administer the Prevention and the Agency for Toxic vaccine, in lieu of providing earlier Carolyn M. Clancy, Substances and Disease Registry. Director versions of these materials. [FR Doc. 03–5298 Filed 3–5–03; 8:45 am] Dated: February 28, 2003. FOR FURTHER INFORMATION CONTACT: BILLING CODE 4160–90–M Alvin Hall, Walter A. Orenstein, M.D., Director, Director, Management Analysis and Services National Immunization Program, Office, Centers for Disease Control and Centers for Disease Control and DEPARTMENT OF HEALTH AND Prevention. Prevention, Mailstop E–05, 1600 Clifton HUMAN SERVICES [FR Doc. 03–5247 Filed 3–5–03; 8:45 am] Road, NE., Atlanta, Georgia 30333, BILLING CODE 4163–18–P telephone (404) 639–8200. Centers for Disease Control and SUPPLEMENTARY INFORMATION: The Prevention National Childhood Vaccine Injury Act DEPARTMENT OF HEALTH AND of 1986 (Pub. L. 99–660), as amended by Advisory Committee on Childhood HUMAN SERVICES section 708 of Public Law 103–183, Lead Poisoning Prevention (ACCLPP): added section 2126 to the Public Health Meeting Centers for Disease Control and Service Act. Section 2126, codified at 42 In accordance with section 10(a)(2) of Prevention U.S.C. 300aa–26, requires the Secretary the Federal Advisory Committee Act of Health and Human Services to Revised Vaccine Information Materials (Pub. L. 92–463), the National Center for develop and disseminate vaccine for Measles, Mumps and Rubella Environmental Health (NCEH) of the information materials for distribution by Vaccines; Revised Instructions for Use Centers for Disease Control and all health care providers in the United of Vaccine Information Statements Prevention (CDC) announces the States to any patient (or to the parent or following committee meeting. AGENCY: Centers for Disease Control and legal representative in the case of a Name: Advisory Committee on Childhood Prevention (CDC), Department of Health child) receiving vaccines covered under Lead Poisoning Prevention. and Human Services (HHS). the National Vaccine Injury Time and Date: 8:30 a.m.–5:30 p.m., March ACTION: Notice. Compensation Program. 18, 2003. Development and revision of the Place: Hilton—Crystal City at National SUMMARY: Under the National vaccine information materials have been Airport, 2399 Jefferson Davis Highway, Childhood Vaccine Injury Act (42 U.S.C. delegated by the Secretary to the Centers Arlington, VA 22202, telephone 703/418– 300aa-26), the CDC must develop for Disease Control and Prevention 6800. vaccine information materials that all (CDC). Section 2126 requires that the Status: Open to the public, limited only by the space available. The meeting room health care providers are required to materials be developed, or revised, after accommodates approximately 55 people. give to patients/parents prior to notice to the public, with a 60-day Purpose: The Committee shall provide administration of specific vaccines. comment period, and in consultation advice and guidance to the Secretary; the Since the recommended interval with the Advisory Commission on

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Childhood Vaccines, appropriate health Following consultation and review of medical record at the time vaccine care provider and parent organizations, comments submitted, these vaccine information materials are provided and the Food and Drug Administration. information materials have been indicating: The law also requires that the finalized and are contained in this (1) The edition date of the materials, information contained in the materials notice. They are entitled ‘‘Measles, and be based on available data and Mumps & Rubella Vaccines: What You (2) The date these materials were information, be presented in Need to Know,’’ and are dated January provided. understandable terms, and include: 15, 2003. CDC has also revised the This recordkeeping requirement (1) A concise description of the Instructions for the Use of Vaccine supplements the requirement of 42 benefits of the vaccine, Information Statements. The revised U.S.C. 300aa–25 that all health care (2) A concise description of the risks instructions, dated January 15, 2003, are providers administering these vaccines associated with the vaccine, included in this notice. These must record in the patient’s permanent (3) A statement of the availability of instructions and copies of the materials medical record or in a permanent office the National Vaccine Injury for all covered vaccines can also be log: Compensation Program, and found on the CDC Web site at: http:// (3) The name, address and title of the (4) Such other relevant information as www.cdc.gov/nip/publications/VIS/. In may be determined by the Secretary. individual who administers the vaccine, addition, single camera-ready copies of (4) The date of administration, and The vaccines initially covered under the materials, and the instructions for the National Vaccine Injury (5) The vaccine manufacturer and lot their use, are available from State health number of the vaccine used. Compensation Program were diphtheria, departments. A list of State health tetanus, pertussis, measles, mumps, department contacts for obtaining Additional Recommended Use rubella, and poliomyelitis vaccines. copies of these materials is included in Since April 15, 1992, any health care Health care providers may also want a December 17, 1999 Federal Register to give parents copies of all vaccine provider in the United States who notice (64 FR 70914). intends to administer one of these information materials prior to the first * * * * * covered vaccines is required to provide immunization visit, such as at the first copies of the relevant vaccine Instructions for the Use of Vaccine well baby visit. information materials, also known as Information Statements Applicability of State Law Vaccine Information Statements (VIS), Required Use prior to administration of any of these Health care providers should consult vaccines. As new vaccines have been 1. Provide VIS When Vaccination Is their legal counsel to determine added to the National Vaccine Injury Given additional State requirements pertaining to immunization. The Federal Compensation Program, materials for As required under the National those vaccines have also been requirements to provide the vaccine Childhood Vaccine Injury Act (42 U.S.C. information materials supplement any developed. Since June 1, 1999, health 300aa-26), all health care providers in applicable State laws. care providers are required to provide the United States who administer any copies of vaccine information materials vaccine containing diphtheria, tetanus, Availability of Copies for the following vaccines: hepatitis B, pertussis, measles, mumps, rubella, Single camera-ready copies of the haemophilus influenzae type b (Hib), polio, hepatitis B, Haemophilus and varicella (chickenpox) vaccines. vaccine information materials are influenzae type b (Hib), varicella available from State health departments. And, effective December 15, 2002, use (chickenpox), or pneumococcal Copies are also available on the Centers of vaccine information materials for conjugate vaccine shall, prior to for Disease Control and Prevention’s pneumococcal conjugate vaccine was administration of each dose of the Web site at http://www.cdc.gov/nip/ mandated. vaccine, provide a copy to keep of the publications/VIS. Copies are available relevant current edition vaccine Revised Vaccine Information Materials in English and in other languages. for Measles, Mumps & Rubella (MMR) information materials that have been Vaccines produced by the Centers for Disease Current Editions of VISs Control and Prevention (CDC): The Advisory Committee on Diphtheria, Tetanus, Pertussis (DTaP/ —To the parent or legal representative* Immunization Practices revised its DT): 7/30/01 of any child to whom the provider recommendations for administration of Tetanus Diphtheria (Td): 6/10/94 intends to administer such vaccine, or rubella-containing vaccines to change Measles, Mumps, Rubella (MMR): 1/15/ —To any adult to whom the provider 03 the recommended interval between intends to administer such vaccine. receiving MMR vaccine and becoming The materials shall be supplemented Hepatitis B: 7/11/01 pregnant from 3 months to 4 weeks with visual presentations or oral Polio: 1/1/00 (‘‘Revised ACIP Recommendations for explanations, as appropriate. Haemophilus influenzae type b: 12/16/ Avoiding Pregnancy After Receiving a If there is not a single VIS for a 98 Rubella-Containing Vaccine’’ MMWR combination vaccine (e.g., hepatitis A/ Varicella (chickenpox): 12/16/98 50/49, Dec 14, 2001). Interim vaccine Hepatitis B), use the VISs for both Pneumococcal conjugate: 9/30/02 information materials reflecting this component vaccines. Reference 42 U.S.C. 300aa–26 change were posted on the CDC Web 1/15/03 site on June 13, 2002. We proposed * ‘‘Legal representative’’ is defined as a parent or other individual who is qualified * * * * * slightly different language to further under State law to consent to the clarify this recommendation when the immunization of a minor. Measles, Mumps & Rubella Vaccines: proposed revised MMR vaccine What You Need to Know information materials were published 2. Record Information for Each VIS for public comment in the Federal Provided 1. Why Get Vaccinated? Register on October 10, 2002 (67 FR Health care providers shall make a Measles, mumps, and rubella are 63106). notation in each patient’s permanent serious diseases.

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Measles birth. Women should avoid getting 5. What if There Is a Moderate or Severe • Measles virus causes rash, cough, pregnant for 4 weeks after getting MMR Reaction? runny nose, eye irritation, and fever. vaccine. • What Should I Look For? • It can lead to ear infection, Some people should check with their doctor about whether they should Any unusual conditions, such as a pneumonia, seizures (jerking and serious allergic reaction, high fever or staring), brain damage, and death. get MMR vaccine, including anyone who: behavior changes. Signs of a serious Mumps allergic reaction include difficulty —Has HIV/AIDS, or another disease that breathing, hoarseness or wheezing, • Mumps virus causes fever, affects the immune system. hives, paleness, weakness, a fast heart headache, and swollen glands. —Is being treated with drugs that affect • It can lead to deafness, meningitis beat or dizziness within a few minutes the immune system, such as steroids, to a few hours after the shot. A high (infection of the brain and spinal cord for 2 weeks or longer. covering), painful swelling of the fever or seizure, if it occurs, would —Has any kind of cancer. happen 1 or 2 weeks after the shot. testicles or ovaries, and, rarely, death. —Is taking cancer treatment with x-rays Rubella (German Measles) or drugs. What Should I do? —Has ever had a low platelet count (a • Call a doctor, or get the person to • Rubella virus causes rash, mild blood disorder). a doctor right away. fever, and arthritis (mostly in women). • Tell your doctor what happened, • If a woman gets rubella while she • People who recently had a the date and time it happened, and is pregnant, she could have a transfusion or were given other blood when the vaccination was given. miscarriage or her baby could be born products should ask their doctor when • they may get MMR vaccine. Ask your doctor, nurse, or health with serious birth defects. department to file a Vaccine Adverse You or your child could catch these Ask your doctor or nurse for more Event Reporting System (VAERS) form. diseases by being around someone who information. Or call VAERS yourself at 1–800–822– has them. They spread from person to 4. What Are the Risks From MMR 7967 or visit their Web site at http:// person through the air. Vaccine? Measles, mumps, and rubella (MMR) www.vaers.org. vaccine can prevent these diseases. A vaccine, like any medicine, is 6. The National Vaccine Injury Most children who get their MMR capable of causing serious problems, Compensation Program shots will not get these diseases. Many such as severe allergic reactions. The In the rare event that you or your more children would get them if we risk of MMR vaccine causing serious child has a serious reaction to a vaccine, stopped vaccinating. harm, or death, is extremely small. a federal program has been created to Getting MMR vaccine is much safer 2. Who Should Get MMR Vaccine and help you pay for the care of those who than getting any of these three diseases. When? have been harmed. For details about the Most people who get MMR vaccine do National Vaccine Injury Compensation Children should get 2 doses of MMR not have any problems with it. vaccine: Program, call 1–800–338–2382 or visit Mild Problems the program’s Web site at http:// —The first at 12–15 months of age. www.hrsa.gov/osp/vicp. —And the second at 4–6 years of age. Fever (up to 1 person out of 6). These are the recommended ages. But Mild rash (about 1 person out of 20). 7. How Can I Learn More? children can get the second dose at any Swelling of glands in the cheeks or Ask your doctor or nurse. They can age, as long as it is at least 28 days after neck (rare). give you the vaccine package insert or the first dose. If these problems occur, it is usually suggest other sources of information. Some adults should also get MMR within 7–12 days after the shot. They Call your local or state health vaccine: occur less often after the second dose. department’s immunization program. Generally, anyone 18 years of age or Contact the Centers for Disease older, who was born after 1956, should Moderate Problems Control and Prevention (CDC): get at least one dose of MMR vaccine, Seizure (jerking or staring) caused by —Call 1–800–232–2522 (English). unless they can show that they have had fever (about 1 out of 3,000 doses). —Call 1–800–232–0233 (Espan˜ ol). either the vaccines or the diseases. Temporary pain and stiffness in the —Visit the National Immunization Ask your doctor or nurse for more joints, mostly in teenage or adult Program’s Web site at http:// information. women (up to 1 out of 4). www.cdc.gov/nip. MMR vaccine may be given at the Temporary low platelet count, which U.S. Department of Health & Human same time as other vaccines. can cause a bleeding disorder (about 1 Services 3. Some People Should Not Get MMR out of 30,000 doses). Centers for Disease Control and Vaccine or Should Wait Severe Problems (Very Rare). Prevention Serious allergic reaction (less than 1 National Immunization Program • People should not get MMR vaccine out of a million doses). Vaccine Information Statement who have ever had a life-threatening Several other severe problems have MMR (1/15/03) allergic reaction to gelatin, the antibiotic 42 U.S.C. 300aa–26 neomycin, or a previous dose of MMR been known to occur after a child gets * * * * * vaccine. MMR vaccine. • People who are moderately or But this happens so rarely, experts Dated: February 28, 2003. severely ill at the time the shot is cannot be sure whether they are caused Joseph R. Carter, scheduled should usually wait until by the vaccine or not. These include: Associate Director for Management and they recover before getting MMR —Deafness. Operations, Centers for Disease Control and vaccine. —Long-term seizures, coma, or lowered Prevention (CDC). • Pregnant women should wait to get consciousness. [FR Doc. 03–5248 Filed 3–5–03; 8:45 am] MMR vaccine until after they have given —Permanent brain damage. BILLING CODE 4163–18–P

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DEPARTMENT OF HEALTH AND Resources Management (HFA–250), Interstate Shellfish Dealers Certificate HUMAN SERVICES Food and Drug Administration, 5600 (OMB Control Number 0910–0021)— Fishers Lane, Rockville, MD 20857, Extension Food and Drug Administration 301–827–1223. Under 42 U.S.C. 243, FDA is required [Docket No. 03N–0053] SUPPLEMENTARY INFORMATION: Under the to cooperate with and aid State and PRA (44 U.S.C. 3501–3520), Federal local authorities in the enforcement of Agency Information Collection their health regulations and is Activities; Proposed Collection; agencies must obtain approval from the Office of Management and Budget authorized to assist States in the Comment Request; Interstate Shellfish prevention and suppression of Dealers Certificate (OMB) for each collection of information they conduct or sponsor. communicable diseases. Under this AGENCY: Food and Drug Administration, ‘‘Collection of information’’ is defined authority, FDA participates with State HHS. in 44 U.S.C. 3502(3) and 5 CFR regulatory agencies, some foreign ACTION: Notice. 1320.3(c) and includes agency requests nations, and the molluscan shellfish or requirements that members of the industry in the National Shellfish SUMMARY: The Food and Drug public submit reports, keep records, or Sanitation Program (NSSP). Administration (FDA) is announcing an provide information to a third party. The NSSP is a voluntary, cooperative opportunity for public comment on the Section 3506(c)(2)(A) of the PRA (44 program to promote the safety of proposed collection of certain U.S.C. 3506(c)(2)(A)) requires Federal molluscan shellfish by providing for the information by the agency. Under the classification and patrol of shellfish Paperwork Reduction Act of 1995 (the agencies to provide a 60-day notice in the Federal Register concerning each growing waters and for the inspection PRA), Federal agencies are required to and certification of shellfish processors. publish notice in the Federal Register proposed collection of information, including each proposed extension of an Each participating State and foreign concerning each proposed collection of nation monitors its molluscan shellfish existing collection of information, information, including each proposed processors and issues certificates for before submitting the collection to OMB extension of an existing collection of those that meet the State or foreign for approval. To comply with this information, and to allow 60 days for shellfish control authority’s criteria. requirement, FDA is publishing notice public comment in response to the Each participating State and nation of the proposed collection of notice. This notice solicits comments on provides a certificate of its certified information set forth in this document. FDA Form 3038, Interstate Shellfish shellfish processors to FDA on Form Dealers Certificate. With respect to the following FDA 3038, ‘‘Interstate Shellfish Dealer’s DATES: Submit written or electronic collection of information, FDA invites Certificate.’’ FDA uses this information comments on the collection of comments on: (1) Whether the proposed to publish the ‘‘Interstate Certified information by May 5, 2003. collection of information is necessary Shellfish Shippers List,’’ a monthly ADDRESSES: Submit electronic for the proper performance of FDA’s comprehensive listing of all molluscan comments on the collection of functions, including whether the shellfish processors certified under the information to http:// information will have practical utility; cooperative program. If FDA did not www.accessdata.fda.gov/scripts/oc/ (2) the accuracy of FDA’s estimate of the collect the information necessary to dockets/edockethome.cfm. Submit burden of the proposed collection of compile this list, participating States written comments on the collection of information, including the validity of would not be able to identify and keep information to the Dockets Management the methodology and assumptions used; out shellfish processed by uncertified Branch (HFA–305), Food and Drug (3) ways to enhance the quality, utility, processors in other States and foreign Administration, 5630 Fishers Lane, rm. and clarity of the information to be nations. Consequently, the NSSP would 1061, Rockville, MD 20852. All collected; and (4) ways to minimize the not be able to control the distribution of comments should be identified with the burden of the collection of information uncertified and possibly unsafe shellfish docket number found in brackets in the on respondents, including through the in interstate commerce, and its heading of this document. use of automated collection techniques, effectiveness would be nullified. FOR FURTHER INFORMATION CONTACT: when appropriate, and other forms of FDA estimates the burden of this Peggy Robbins, Office of Information information technology. collection of information as follows:

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

No. of Annual Frequency Total Annual Hours per FDA Form No. Respondents per Response Responses Response Total Hours

3038 34 62 2,108 .10 211 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

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This estimate is based on the numbers Public Law 104–13), the Health Proposed Project: The Health Education of certificates received in the past 3 Resources and Services Administration Assistance Loan (HEAL) Program (OMB years. (HRSA) publishes periodic summaries No. 0915–0034)—Extension Dated: February 21, 2003. of proposed projects being developed for submission to OMB under the This clearance request is for the William K. Hubbard, Paperwork Reduction Act of 1995. To extension of approval for two HEAL Associate Commissioner for Policy and request more information on the forms and two electronic data collection Planning. proposed project or to obtain a copy of activities: The Lender’s Application for [FR Doc. 03–5202 Filed 3–5–03; 8:45 am] the data collection plans and draft Contract of Federal Loan Insurance form BILLING CODE 4160–01–S instruments, call the HRSA Reports (used by lenders to make application to Clearance Officer on (301) 443–1129. the HEAL insurance program); the Comments are invited on: (a) Whether Borrower’s Deferment Request form DEPARTMENT OF HEALTH AND the proposed collection of information HUMAN SERVICES (used by borrowers to request is necessary for the proper performance deferments on HEAL loans and used by Health Resources and Services of the functions of the agency, including lenders to determine borrower’s whether the information shall have Administration eligibility for deferment); the Borrower practical utility; (b) the accuracy of the Loan Status update electronic Agency Information Collection agency’s estimate of the burden of the proposed collection of information; (c) submission (submitted monthly by Activities: Proposed Collection: lenders to the Secretary on the status of Comment Request ways to enhance the quality, utility, and clarity of the information to be each loan); and the Loan Purchase/ In compliance with the requirement collected; and (d) ways to minimize the Consolidation electronic submission for opportunity for public comment on burden of the collection of information (submitted by lenders to the Secretary to proposed data collection projects on respondents, including through the report sales, purchases, and (section 3506(c)(2)(A) of title 44, United use of automated collection techniques consolidation of HEAL loans). The States Code, as amended by the or other forms of information estimate of burden for the forms are as Paperwork Reduction Act of 1995, technology. follows:

Responses HRSA form Number of per Total Hours per Total bur- respondents respondent responses responses den hours

Lender’s Application for Contract of Federal Loan Insurance ...... 28 1 28 8 min. 4 Borrower’s Deferment Request: Borrowers ...... 4,642 1 4,642 10 min. 774 Employers ...... 2,780 1,669 4,642 5 min. 387 Borrower Loan Status Update Electronic Submission 8 18 144 10 min. 24 Loan Purchase/Consolidation Electronic Submission ...... 28 248 6,950 4 min. 463

Total ...... 7,486 ...... 16,406 ...... 1,652

Send comments to Susan G. Queen, Institutes of Health (NIH) has submitted designed to assess the effectiveness of Ph.D., HRSA Reports Clearance Officer, to the Office of Management and Budget the NCI SEP in meeting its goals of: (1) Room 14–45, Parklawn Building, 5600 (OMB) a request for review and Encouraging under-represented Fishers Lane, Rockville, MD 20857. approval of the information collection minority and under-served students Written comments should be received listed below. The proposed information who have just completed ninth grade to within 60 days of this notice. collection was previously published in select careers in science, mathematics, Dated: February 26, 2003. the Federal Register on December 5, and/or research, and (2) broadening and 2002, pages 72422–72423 and allowed Jane M. Harrison, enriching students’ science, research, 60 days for public comment. No public and sociocultural backgrounds. The Director, Division of Policy Review and comments were received. The purpose Coordination. program was a five- to six-week of this notice is to allow an additional [FR Doc. 03–5200 Filed 3–5–03; 8:45 am] residential program taking place on two 30 days for public comment. The university campuses—University of BILLING CODE 4165–15–U National Institutes of Health may not Kentucky, Lexington and San Diego conduct or sponsor, and the respondent State University—in summers 1998– is not required to respond to, an DEPARTMENT OF HEALTH AND information collection that has been 2002. The 5-year evaluation was HUMAN SERVICES extended, revised, or implemented on or designed as a controlled, longitudinal study, consisting of the five SEP cohorts National Institutes of Health after October 1, 1995, unless it displays a currently valid OMB control number. and two cohorts of control group students who did not attend the Submission for OMB Review; Proposed Collection: Title: An Comment Request; An Evaluation of Evaluation of the NCI Science program. The evaluation will provide the National Cancer Institute Science Enrichment Program (SEP): Follow-up NCI with valuable information regarding Enrichment Program Survey. Type of Information Collection specific components that promoted or Request: Revision of a currently limited the program’s effectiveness, the SUMMARY: Under the provisions of approved collection. (OMB No. 0925– extent to which the program was section 3507(a)(1)(D) of the Paperwork 0510, Expiration 2/28/2003). Need and implemented as planned, how much the Reduction Act of 1995, the National Use of Information Collection: This two regional programs varied, and how Cancer Institute (NCI), the National follow-up survey is part of an evaluation the program can be improved or made

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more effective. NCI will use this program. Frequency of Response: One School and college students. Cost to information to make decisions regarding time. Affected Public: Individuals or Respondents: $9,600. the annual continuation and expansion of the households. Type of Respondents: High reporting burden is as follows:

ESTIMATES OF HOUR BURDEN: BURDEN NOT PREVIOUSLY APPROVED (1998–2002)

Average num- Average an- Type of respondents ber of re- Frequency of Average time nual hour spondents/yr. response per response burden

SEP Participants ...... 200 1 ...... 0.5 100 Control Group Students ...... 200 1 ...... 0.5 100 Control Group Students ...... 100 2 (pre and 1.00 100 post).

Total ...... 500 ...... 300

ESTIMATES OF HOUR BURDEN: BURDEN REQUESTED

Average num- Average an- Type of respondents ber of re- Frequency of Average time nual hour spondents/yr. response per response burden

SEP Participants ...... 500 1 (follow up) 0.5 250 Control Group Students ...... 300 1 (follow up) 0.5 150

Total ...... 800 ...... 400

There are no Capital Costs, Operating Populations Research, National Cancer applications are filed on selected Costs, and/or Maintenance Costs to Institute, National Institutes of Health, inventions to extend market coverage report. Center to Reduce Cancer Health for companies and may also be available Request for Comments: Written Disparities, National Cancer Institute, for licensing. comments and/or suggestions from the National Institutes of Health, 6116 ADDRESSES: Licensing information and public and affected agencies are invited Executive Boulevard, Suite 602, copies of the U.S. patent applications on one or more of the following points: Rockville, MD 20852, or call non-toll- listed below may be obtained by writing (1) Whether the proposed collection of free number (301) 496–8589, or E-mail to the indicated licensing contact at the information is necessary for the proper your request, including your address to: Office of Technology Transfer, National performance of the function of the [email protected]. Institutes of Health, 6011 Executive agency, including whether the Comments Due Date: Comments Boulevard, Suite 325, Rockville, information will have practical utility; regarding this information collection are Maryland 20852–3804; telephone: (301) (2) The accuracy of the agency’s best assured of having their full effect if 496–7057; fax: (301) 402–0220. A signed estimate of the burden of the proposed received within 30 days of this Confidential Disclosure Agreement will collection of information, including the publication. be required to receive copies of the validity of the methodology and Dated: February 21, 2003. patent applications. assumptions used; (3) Ways to enhance Reesa Nichols, the quality, utility, and clarity of the Immunogenic Epitopes for Fibroblast NCI Project Clearance Liaison. Growth Factor–5 (FGF–5) Presented by information to be collected; and (4) [FR Doc. 03–5213 Filed 3–5–03; 8:45 am] Ways to minimize the burden of the HLA–A3 and HLA–A2 BILLING CODE 4140–01–M collection of information on those who James Yang et al. (NCI). are to respond, including the use of DHHS Reference No. E–031–2003/0– appropriate automated, electronic, DEPARTMENT OF HEALTH AND US–01 filed 19 Nov 2002. mechanical, or other technological HUMAN SERVICES Licensing Contact: Jonathan Dixon; collection techniques or other forms of (301) 435–5559; [email protected]. information technology. National Institutes of Health Approximately 30,000 patients are Direct Comments to OMB: Written diagnosed with renal cell carcinoma comments and/or suggestions regarding Government-Owned Inventions; (RCC) each year in the United States, the item(s) contained in this notice, Availability for Licensing and an estimated 12,000 patients die of especially regarding the estimated AGENCY: National Institutes of Health, this disease. Most patients are public burden and associated response Public Health Service, DHHS. diagnosed with advanced local disease time, should be directed to the Office of or metastatic disease. Current therapies ACTION: Notice. Management and Budget, Office of include removal of the kidney Regulatory Affairs, New Executive SUMMARY: The inventions listed below (nephrectomy) or high dose Office Building, Room 10235, are owned by agencies of the U.S. immunotherapy with IL–2, which has Washington, DC 20503. Attention: Desk Government and are available for been able to achieve success in only part Officer for NIH. To request more licensing in the U.S. in accordance with (15–20%) of the patient population. information on the proposed project or 35 U.S.C. 207 to achieve expeditious Even with a successful nephrectomy, it to obtain a copy of the date collection commercialization of results of is likely that patients with advanced plans and instruments, contact: Mr. federally-funded research and local diseases will develop metastases. Frank Jackson, Office of Special development. Foreign patent Therefore, new methods are needed to

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improve on IL–2 therapy and expand through each vessel contained in the Obtaining a test sample from the female the curative potential of therapies for test region of interest, removing the mammal, and (b) assaying the test patients with RCC. substrate and the test region of interest sample for the presence of semenogelin, The present invention discloses from the fowl egg, capturing a three- wherein the presence of semenogelin in peptides for use in immunotherapy of dimensional image of the test region of the test sample is diagnostic for the tumors. The peptides, both an HLA–A2 interest, wherein the three-dimensional cancer. and an HLA–A3 epitope, are derived image comprises a plurality of pixels, Dated: February 24, 2003. from the amino acid sequence of an such that a fluorescent vascular density RCC-associated antigen, fibroblast (FVD) value can be assigned to the test Steven M. Ferguson, growth factor–5 (FGF–5). Plans are region of interest, and comparing the Acting Director, Division of Technology, underway to investigate both peptides FVD value of the test region of interest Development and Transfer, Office of with the FVD value of a control region Technology Transfer, National Institutes of in clinical trials of peptide vaccination Health. in patients with advanced renal cancer. of interest that was prepared in the same [FR Doc. 03–5211 Filed 3–5–03; 8:45 am] In addition, FGF–5 also appears to be manner as the test region of interest but over-expressed in other common without the administration of a test BILLING CODE 4140–01–P adenocarcinomas such as breast, molecule, such that the angiogenic or prostate and bladder cancer and very antiangiogenic activity of the test DEPARTMENT OF HEALTH AND few antigens suitable for vaccine molecule is measured. A lower FVD HUMAN SERVICES therapies exist for those cancers. value of the test region of interest as compared to the FVD value of the Modified Oligonucleotides and Methods control region of interest is indicative of National Institutes of Health of Use Thereof the test molecule being useful as an National Cancer Institute; Notice of Dr. Seidman et al. (NIA). inhibitor of angiogenesis. Conversely, a Closed Meeting DHHS Reference No. E–176–2002/0 higher FVD value of the test region of filed May 13, 2002. interest as compared to the FVD value Pursuant to section 10(d) of the Licensing Contact: Catherine Joyce; of the control region of interest is Federal Advisory Committee Act, as (301) 435–5031; e-mail: indicative of the test molecule being amended (5 U.S.C. appendix 2), notice [email protected]. useful as a stimulator of angiogenesis. is hereby given of the following Triple helix forming oligonucleotides Use of Semenogelin in the Diagnosis, meeting. (TFOs) that bind chromosomal targets in Prognosis, and Treatment of Cancer The meeting will be closed to the living cells may be used as tools for David Roberts and Henry Krutzsch public in accordance with the genome manipulation, including gene (NCI). provisions set forth in sections knockout, conversion, or recombination. DHHS Reference No. E–138–2001/0– 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., The instant invention relates to the US–01 filed 06 Apr 2001 and DHHS as amended. The grant applications and discovery that TFOs containing a Reference No. the discussions could disclose particular pattern of certain ribose E–138–2001/0–PCT–02 filed 03 Apr confidential trade secrets or commercial substitutions resulted in a knock-out 2002 (PCT/US02/10535). property such as patentable material, frequency of the hamster HPRT gene Licensing Contact: Matthew Kiser; (301) and personal information concerning that was 300–400 fold above 435–5236; [email protected]. individuals associated with the grant background. Aspects of this work have The invention provides a method of applications, the disclosure of which been published in Puri et al., 2002, diagnosing cancer in a male mammal would constitute a clearly unwarranted Biochemistry 41(24):7716–7724. wherein the cancer is other than invasion of personal privacy. The above-mentioned invention is prostate cancer. The method comprises: available for licensing on a non- (a) Obtaining a test sample from the Name of Committee: National Cancer Institute Initial Review Group, Subcommittee exclusive basis. male mammal, and (b) assaying the test H—Clinical Groups. sample for an increased level of Quantitative Assay of the Angiogenic Date: March 23–25, 2003. and Antiangiogenic Activity of a Test semenogelin, wherein the increased Time: 6:30 p.m. to 3 p.m. Molecule level of semenogelin in the test sample Agenda: To review and evaluate grant is diagnostic for the cancer. The test Steven Libutti (NCI). applications. sample can be assayed for an increased Place: Bethesda Marriott Suites, 6711 DHHS Reference No. E–152–2002/0 level of semenogelin in (b) by filed 09 Apr 2002. Democracy Boulevard, Bethesda, MD 20817. comparing the level of semenogelin in Contact Person: Deborah R. Jaffe, PhD, Licensing Contact: Matthew Kiser; (301) the test sample to the level of 435–5236; [email protected]. Scientific Review Administrator, Grants semenogelin in a control sample Review Branch, Division of Extramural The invention provides a method of obtained from one or more cancer-free Activities, National Cancer Institute, NIH, measuring the angiogenic or male mammals of the same species, 6116 Executive Boulevard, Room 8038, MSC antiangiogenic activity of a test wherein an increase in the level of 8328, Bethesda, MD 20892, (301) 496–7721, molecule. The method comprises semenogelin in the test sample as [email protected]. obtaining an embryonated fowl egg, compared to the control sample (Catalogue of Federal Domestic Assistance creating a window in the shell of the obtained is diagnostic for the cancer. Program Nos. 93.392, Cancer Construction; fowl egg, such that the CAM membrane Alternatively, the level of semenogelin 93.393, Cancer Cause and Prevention is exposed, providing to a test region of in the test sample can be compared to Research; 93.394, Cancer Detection and interest on the CAM a substrate, an already determined range of Diagnosis Research; 93.395, Cancer administering to a vessel located in the semenogelin for cancer-free male Treatment Research; 93.396, Cancer Biology CAM a test molecule, administering to mammals of the same species. Research; 93.397, Cancer Centers Support; a vessel located in the CAM a In addition, the invention provides a 93.398, Cancer Research Manpower; 93.399, fluorescent-labeled particle, such that method of diagnosing cancer in a female Cancer Control, National Institutes of Health, the fluorescent-labeled particle travels mammal. The method comprises: (a) HHS)

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Dated: February 21, 2003. DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND LaVerne Y. Stringfield, HUMAN SERVICES HUMAN SERVICES Director, Office of Federal Advisory Committee Policy. National Institutes of Health National Institutes of Health [FR Doc. 03–5214 Filed 3–5–03; 8:45 am] National Cancer Institute; Notice of National Cancer Institute; Notice of BILLING CODE 4140–01–M Closed Meeting Closed Meeting Pursuant to section 10(d) of the Pursuant to section 10(d) of the DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as Federal Advisory Committee Act, as HUMAN SERVICES amended (5 U.S.C. appendix 2), notice amended (5 U.S.C. appendix 2), notice is hereby given of the following National Institutes of Health is hereby given of the following meeting. meeting. The meeting will be closed to the National Cancer Institute; Notice of The meeting will be closed to the public in accordance with the Closed Meeting public in accordance with the provisions set forth in sections provisions set forth in sections Pursuant to section 10(d) of the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Federal Advisory Committee Act, as as amended. The contract proposals and amended (5 U.S.C. appendix 2), notice as amended. The grant applications and the discussions could disclose is hereby given of the following the discussions could disclose confidential trade secrets or commercial meeting. confidential trade secrets or commercial property such as patentable material, property such as patentable material, and personal information concerning The meeting will be closed to the and personal information concerning individuals associated with the contract public in accordance with the individuals associated with the grant proposals, the disclosure of which provisions set forth in sections applications, the disclosure of which would constitute a clearly unwarranted 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., would constitute a clearly unwarranted invasion of personal privacy. as amended. The grant applications and the discussions could disclose invasion of personal privacy. Name of Committee: National Cancer Institute Special Emphasis Panel, Preclinical confidential trade secrets or commercial Name of Committee: National Cancer in Vitro and In Vivo Screening Assays. property such as patentable material, Institute Special Emphasis Panel, Special Date: April 1, 2003. and personal information concerning Emphasis Panel for 3 R25 Applications. Time: 8 a.m. to 6 p.m. individuals associated with the grant Date: March 13, 2003. Agenda: To review and evaluate contract applications, the disclosure of which Time: 7:30 a.m. to 8:30 a.m. proposals. would constitute a clearly unwarranted Agenda: To review and evaluate grant Place: Ramada Inn Rockville, 1775 invasion of personal privacy. applications. Rockville Pike, Rockville, MD 20852. Place: Holiday Inn Georgetown, 2101 Contact Person: Lalita D. Palekar, PhD, Name of Committee: National Cancer Wisconsin Avenue, NW., Washington, DC Scientific Review Administrator, Special Institute Special Emphasis Panel, Innovative 20007. Review and Resources Branch, Division of Extramural Activities, National Cancer Technologies for the Molecular Analysis of Contact Person: Lynn M Amende, PhD, Institute, National Institutes of Health, 6116 Cancer. Scientific Review Administrator, Resources Executive Boulevard, Room 8105, Bethesda, Date: March 17–18, 2003. and Training Review Branch, Division of MD 20892–7405, (301) 496–7575. Time: 8 a.m. to 4 p.m. Extramural Activities, National Cancer Agenda: To review and evaluate grant Institute, 6116 Executive Boulevard, Room (Catalogue of Federal Domestic Assistance Program Nos. 93.392, Cancer Construction; applications. 8105, Bethesda, MD 20892–8328, 301–451– 93.393, Cancer Cause and Prevention Place: Gaithersburg Hilton, 620 Perry 4759, [email protected]. Parkway, Gaithersburg, MD 20877. Research; 93.394, Cancer Detection and This notice is being published less than 15 Diagnosis Research; 93.395, Cancer Contact Person: Sherwood Githens, PhD, days prior to the meeting due to the timing Treatment Research; 93.396, Cancer Biology Scientific Review Administrator, National limitations imposed by the review and Research; 93.397, Cancer Centers Support; Institutes of Health, National Cancer funding cycle. 93.398, Cancer Research Manpower; 93.399, Institute, Special Review, Referral and Cancer Control, National Institutes of Health, (Catalogue of Federal Domestic Assistance Resources Branch, 6116 Executive Boulevard, HHS). Program Nos. 93.392, Cancer Construction; Room 8068, Bethesda, MD 20892, (301) 435– Dated: February 26, 2003. 1822. 93.393, Cancer Cause and Prevention Research; 93.394, Cancer Detection and LaVerne Y. Stringfield, (Catalogue of Federal Domestic Assistance Diagnosis Research; 93.395, Cancer Director, Office of Federal Advisory Program Nos. 93.392, Cancer Construction; Treatment Research; 93.396, Cancer Biology Committee Policy. 93.393, Cancer Cause and Prevention Research; 93.397, Cancer Centers Support; [FR Doc. 03–5220 Filed 3–5–03; 8:45 am] Research; 93.394, Cancer Detection and 93.398, Cancer Research Manpower; 93.399, BILLING CODE 4140–01–M Diagnosis Research; 93.395, Cancer Cancer Control, National Institutes of Health, Treatment Research; 93.396, Cancer Biology HHS) Research; 93.397, Cancer Centers Support; Dated: February 21, 2003. DEPARTMENT OF HEALTH AND 93.398, Cancer Research Manpower; 93.399, HUMAN SERVICES Cancer Control, National Institutes of Health, LaVerne Y. Stringfield, HHS) Director, Office of Federal Advisory National Institutes of Health Dated: February 26, 2003. Committee Policy. LaVerne Y. Stringfield, [FR Doc. 03–5217 Filed 3–5–03; 8:45 am] National Cancer Institute; Notice of Closed Meeting Director, Office of Federal Advisory BILLING CODE 4140–01–M Committee Policy. Pursuant to section 10(d) of the [FR Doc. 03–5216 Filed 3–5–03; 8:45 am] Federal Advisory Committee Act, as BILLING CODE 4140–01–M amended (5 U.S.C. appendix 2), notice

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is hereby given of the following and personal information concerning Date: March 17, 2003. meeting. individuals associated with the grant Open: 2 p.m. to 4 p.m. The meeting will be closed to the applications, the disclosure of which Agenda: The agenda includes Introductory public in accordance with the would constitute a clearly unwarranted Remarks by the Executive Secretary, Opening provisions set forth in sections Remarks by the Director, NCCAM and the invasion of personal privacy. report of the Ephedra Working Group, and 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Cancer other business of the Council. as amended. The contract proposals and Institute Special Emphasis Panel, NCI Place: Neuroscience Conference Center, the discussions could disclose Special Emphasis Panel Accelerated Peer 6001 Executive Boulevard, Conference confidential trade secrets or commercial Review. Rooms A1–2, Rockville, MD 20852. property such as patentable material, Date: March 25, 2003. Contact Person: Jane F. Kinsel, Ph.D., and personal information concerning Time: 2 p.m. to 4 p.m. Executive Secretary, National Center for individuals associated with the contract Agenda: To review and evaluate grant Complementary and Alternative Medicine, proposals, the disclosure of which applications. National Institutes of Health, 6707 Place: 6116 Executive Boulevard, Room would constitute a clearly unwarranted Democracy Blvd., Suite 401, Bethesda, MD 8131, Rockville, MD 20852, (Telephone 20892, (301) 496–6701. invasion of personal privacy. Conference Call). Name of Committee: National Cancer Contact Person: Peter J. Wirth, PhD, Copies of the meeting agenda and the Institute Special Emphasis Panel, Small Scientific Review Administrator, Research roster of members is available at Business Initiatives Research Topics 182, Programs Review Branch, Division of [email protected] or will be furnished 183, 184, 190, 191, 192, 194. Extramural Activities, National Cancer upon request by Dr. Jane Kinsel, Date: March 18–19, 2003. Institute, 6116 Executive Boulevard, Room Executive Secretary, NACCAM, Time: 4 p.m. to 1 p.m. 8131, Bethesda, MD 20892–8328, (301) 496– National Institutes of Health, 6707 Agenda: To review and evaluate contract 7565, [email protected]. Democracy Boulevard, Suite 401, This notice is being published less than 15 proposals. Bethesda, Maryland 20892, 301–496– Place: Gaithersburg Hilton, 620 Perry days prior to the meeting due to the timing Parkway, Gaithersburg, MD 20877. limitations imposed by the review and 6701, Fax 301–480–0087, or via e-mail Contact Person: Sherwood Githens, PhD, funding cycle. at [email protected]. Scientific Review Administrator, National The meeting is being published less Institutes of Health, National Cancer (Catalogue of Federal Domestic Assistance than 15 days prior to the meeting due Institute, Special Review, Referral and Program Nos. 93.392, Cancer Construction; to scheduling conflicts. Resources Branch, 6116 Executive Boulevard, 93.393, Cancer Cause and Prevention Dated: February 26, 2003. Room 8068, Bethesda, MD 20892, (301) 435– Research; 93.394 Cancer Detection and 1822. Diagnosis Research; 93.395, Cancer LaVerne Y. Stringfield, Treatment Research; 93.396, Cancer Biology Director, Office of Federal Advisory (Catalogue of Federal Domestic Assistance Research; 93.397, Cancer Centers Support; Committee Policy. Program Nos. 93.392, Cancer Construction; 93.398, Cancer Research Manpower; 93.399, [FR Doc. 03–5219 Filed 3–5–03; 8:45 am] 93.393, Cancer Cause and Prevention Cancer Control, National Institutes of Health, Research; 93.394, Cancer Detection and HHS) BILLING CODE 4140–01–M Diagnosis Research; 93.395, Cancer Treatment Research; 93.396, Cancer Biology Dated: February 26, 2003. Research; 93.397, Cancer Centers Support; LaVerne Y. Stringfield, DEPARTMENT OF HEALTH AND 93.398, Cancer Research Manpower; 93.399, Director, Office of Federal Advisory HUMAN SERVICES Cancer Control, National Institutes of Health, Committee Policy. HHS) [FR Doc. 03–5222 Filed 3–5–03; 8:45 am] National Institutes of Health Dated: February 26, 2003. BILLING CODE 4140–01–M LaVerne Y. Stringfield, National Heart, Lung, and Blood Director, Office of Federal Advisory Institute; Notice of Closed Meeting DEPARTMENT OF HEALTH AND Committee Policy. Pursuant to section 10(d) of the HUMAN SERVICES [FR Doc. 03–5221 Filed 3–5–03; 8:45 am] Federal Advisory Committee Act, as BILLING CODE 4140–01–M National Institutes of Health amended (5 U.S.C. Appendix 2), notice is hereby given of the following National Center for Complementary & meeting. DEPARTMENT OF HEALTH AND Alternative Medicine; Notice of Meeting The meeting will be closed to the HUMAN SERVICES public in accordance with the Pursuant to section 10(a) of the National Institutes of Health provisions set forth in sections Federal Advisory Committee Act, as 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., amended (5 U.S.C. appendix 2), notice National Cancer Institute; Notice of as amended. The grant applications and is hereby given of the National Advisory Closed Meeting the discussions could disclose Council for Complementary and confidential trade secrets or commercial Pursuant to section 10(d) of the Alternative Medicine (NACCAM). property such as patentable material, Federal Advisory Committee Act, as The meeting will be open to the and personal information concerning amended (5 U.S.C. Appendix 2), notice public as indicated below, with individuals associated with the grant is hereby given of the following attendance limited to space available. applications, the disclosure of which meeting. Individuals who plan to attend and would constitute a clearly unwarranted The meeting will be closed to the need special assistance, such as sign invasion of personal privacy. public in accordance with the language interpretation or other provisions set forth in sections 552(c)(4) reasonable accommodations, should Name of Committee: National Heart, Lung, notify the Contact Person listed below and Blood Institute Special Emphasis Panel. and 552b(c)(6), Title 5 U.S.C., as (SCOR) Neurobiology of Sleep and Sleep amended. The grant applications and in advance of the meeting. Apnea and Airway Biology and Pathogenesis the discussions could disclose Name of Committee: National Advisory of Cystic Fibrosis. confidential trade secrets or commercial Council for Complementary and Alternative Date: March 6–7, 2003. property such as patentable material, Medicine. Time: 8 a.m. to 5 p.m.

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Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND applications. Program Nos. 93.233, National Center for HUMAN SERVICES Place: Double Tree Rockville, 1750 Sleep Disorders Research; 93.837, Heart and Rockville Pike, Rockville, MD 20852. Vascular Diseases Research; 93.838, Lung National Institutes of Health Contact Person: William J. Johnson, PhD, Diseases Research; 93.839, Blood Diseases Scientific Review Administrator, Review and Resources Research, National Institutes National Institute of Mental Health; Branch, Division of Extramural Affairs, of Health, HHS) National Heart, Lung and Blood Institute, Notice of Closed Meeting Dated: February 25, 2003. National Institutes of Health, 6701 Rockledge Drive, room 7184, MSC 7924, Bethesda, MD LaVerne Y. Stringfield, Pursuant to section 10(d) of the 20892, 301/435–0275. Director, Office of Federal Advisory Federal Advisory Committee Act, as This notice is being published less than 15 Committee Policy. amended (5 U.S.C. appendix 2), notice days prior to the meeting due to the timing [FR Doc. 03–5229 Filed 3–5–03; 8:45 am] limitations imposed by the review and is hereby given of the following funding cycle. BILLING CODE 4140–01–M meeting. (Catalogue of Federal Domestic Assistance The meeting will be closed to the Program Nos. 93.233, National Center for DEPARTMENT OF HEALTH AND public in accordance with the Sleep Disorders Research; 93.837, Heart and HUMAN SERVICES provisions set forth in sections Vascular Disease Research; 93.838, Lung 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Diseases Research; 93.839, Blood Diseases and Resources Research, National Institutes National Institutes of Health as amended. The grant applications and of Health, HHS) the discussions could disclose Dated: February 21, 2003. National Human Genome Research confidential trade secrets or commercial LaVerne Y. Stringfield, Institute; Notice of Closed Meeting property such as patentable material, Director, Office of Federal Advisory and personal information concerning Committee Policy. Pursuant to section 10(d) of the individuals associated with the grant Federal Advisory Committee Act, as [FR Doc. 03–5228 Filed 3–5–03; 8:45 am] applications, the disclosure of which amended (5 U.S.C. Appendix 2), notice would constitute a clearly unwarranted BILLING CODE 4140–01–M is hereby given of the following invasion of personal privacy. meeting. DEPARTMENT OF HEALTH AND The meeting will be closed to the Name of Committee: National Institute of Mental Health Special Emphasis Panel, HUMAN SERVICES public in accordance with the provisions set forth in sections Weight Gain Side Effects. Date: 2:30 p.m to 4:30 p.m. National Institutes of Health 552b(c)(4) and 552b(c)(6), title 5 U.S.C., Agenda: To review and evlauate grant as amended. The grant applications and applications. National Heart, Lung, and Blood the discussions could disclose Place: National Institutes of Health, Institute; Notice of Closed Meeting confidential trade secrets or commercial Neuroscience Center, 6001 Executive Pursuant to section 10(d) of the property such as patentable material, Boulevard, Rockville, MD 20852 (Telephone Federal Advisory Committee Act, as and personal information concerning Conference Call). amended (5 U.S.C. Appendix 2), notice individuals associated with the grant Contact Person: Michael J. Kozak, PhD, is hereby given of the following applications, the disclosure of which Scientific Review Administrator, Division of meeting. would constitute a clearly unwarranted Extramural Activities, National Institute of The meeting will be closed to the invasion of personal privacy. Mental Health, NIH, Neuroscience Center, public in accordance with the Name of Committee: National Human 6001 Executive Blvd., Room, 6138, MSC provisions set forth in sections Genome Research Institute Initial Review 9608, Bethesda, MD 20892–9608, 301–443– 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Group, Genome Research Review Committee. 6471, [email protected]. as amended. The contract proposals and Date: March 4, 2003. This notice is being published less than 15 the discussions could disclose Time: 10:30 a.m. to 3:30 p.m. days prior to the meeting due to the timing confidential trade secrets or commercial Agenda: To review and evaluate grant limitations imposed by the review and property such as patentable material, applications. funding cycle. and personal information concerning Place: NIH, Building 31, 31 Center Drive, (Catalogue of Federal Domestic Assistance individuals associated with the contract Room B2B32, Bethesda, MD 20892. (Telephone conference call.) Program Nos. 93.242, Mental Health Research proposals, the disclosure of which Contact Person: Ken D. Nakamura, PHD, Grants; 93.281, Scientist Development would constitute a clearly unwarranted Scientific Review Administrator, Office of Award, Scientist Development Award for invasion of personal privacy. Scientific Review, National Human Genome Clinicians, and Research Scientist Award; Name of Committee: National Heart, Lung, Research Institute, National Institutes of 93.282, Mental Health National Research and Blood Institute Special Emphasis Panel. Health, Bethesda, MD 20892. 301 402–0838. Service Awards for Research Training, International Research Registry, Network for This notice is being published less than 15 National Institutes of Health, HHS) days prior to the meeting due to the timing Sjogren’s Syndrome. Dated: February 21, 2003. Date: March 27, 2003. limitations imposed by the review and Time: 9 a.m. to 5 p.m. funding cycle. LaVerne Y. Stringfield, Agenda: To review and evaluate contract Director, Office of Federal Advisory proposals. (Catalogue of Federal Domestic Assistance Committee Policy. Place: Sheraton Columbia Hotel, 10207 Program Nos. 93.172, Human Genome [FR Doc. 03–5215 Filed 3–5–03; 8:45 am] Wincopin Circle, Columbia, MD 21060. Research, National Institutes of Health, HHS) Contact Person: Patricia A. Haggerty, Dated: February 25, 2003. BILLING CODE 4140–01–M Scientific Review Administrator, Review LaVerne Y. Stringfield, Branch, Division of Extramural Affairs, Director, Office of Federal Advisory National Heart, Lung and blood Institute, Committee Policy. National Institutes of Health, 6701 Rockledge Drive, Room 7188, MSC 7924, Bethesda, MD [FR Doc. 03–5237 Filed 3–5–03; 8:45 am] 20892 301/435–0280. BILLING CODE 4140–01–M

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DEPARTMENT OF HEALTH AND This notice is being published less than 15 Agenda: To review and evaluate grant HUMAN SERVICES days prior to the meeting due to the timing applications. limitations imposed by the review and Place: Courtyard by Marriott, 2899 National Institutes of Health funding cycle. Jefferson Davis Highway, Arlington, VA 22202. (Catalogue of Federal Domestic Assistance National Institute of Environmental Closed: March 21, 2003, 8 a.m. to Program Nos. 93.375, Minority Biomedical adjournment. Health Sciences; Amended Notice of Research Support; 93.821, Cell Biology and Agenda: To review and evaluate grant Meeting Biophysics Research; 93.859, Pharmacology, applications. Physiology, and Biological Chemistry Place: Courtyard by Marriott, 2899 Notice is hereby given of a change in Research; 93.862, Genetics and Jefferson Davis Highway, Arlington, VA the meeting of the National Institute of Developmental Biology Research; 93.88, 22202. Environmental Health Sciences Special Minority Access to Research Careers; 93.96, Contact Person: John F. Connaughton, PhD, Emphasis Panel, February 19, 2003, 11 Special Minority Initiatives, National Scientific Review Administrator, Review a.m. to February 19, 2003, 1 p.m., which Institutes of Health, HHS) Branch, DEA, NIDDK, National Institutes of was published in the Federal Register Dated: February 26, 2003. Health, Room 757, 6707 Democracy on February 5, 2003, 68 FR 5904. LaVerne Y. Stringfield, Boulevard, Bethesda, MD 20892, (301) 594– 7797, [email protected]. The telephone conference call Director, Office of Federal Advisory meeting will be held on March 19, 2003 Committee Policy. (Catalogue of Federal Domestic Assistance [FR Doc. 03–5223 Filed 3–5–03; 8:45 am] Program Nos. 93.847, Diabetes, at 2 p.m., instead of February 19, 2003, Endocrinology and Metabolic Research; as previously advertised. The meeting is BILLING CODE 4140–01–M 93.848, Digestive Diseases and Nutritional closed to the public. Research; 93.849, Kidney Diseases, Urology Dated: February 26, 2003. and Hematology Research, National Institutes DEPARTMENT OF HEALTH AND of Health, HHS) LaVerne Y. Stringfield, HUMAN SERVICES Dated: February 26, 2003. Director, Office of Federal Advisory Committee Policy. National Institutes of Health LaVerne Y. Stringfield, [FR Doc. 03–5218 Filed 3–5–03; 8:45 am] Director, Office of Federal Advisory Committee Policy. BILLING CODE 4140–01–M National Institute of Diabetes and Digestive and Kidney Diseases; Notice [FR Doc. 03–5224 Filed 3–5–03; 8:45 am] of Meeting BILLING CODE 4140–01–M DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the HUMAN SERVICES Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND National Institutes of Health amended (5 U.S.C. Appendix 2), notice HUMAN SERVICES is hereby given of the following National Institute of General Medical meeting. National Institutes of Health Sciences; Notice of Closed Meeting The meeting will be open to the public as indicated below, with National Institute of Diabetes and Pursuant to section 10(d) of the attendance limited to space available. Digestive and Kidney Diseases; Notice Federal Advisory Committee Act, as Individuals who plan to attend and of Closed Meetings amended (5 U.S.C. Appendix 2), notice need special assistance, such as sign Pursuant to section 10(d) of the is hereby given of the following language interpretation or other Federal Advisory Committee Act, as meeting. reasonable accommodations, should amended (5 U.S.C. Appendix 2), notice The meeting will be closed to the notify the Contact Person listed below is hereby given of the following public in accordance with the in advance of the meeting. meetings. provisions set forth in sections The meeting will be closed to the The meetings will be closed to the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., public in accordance with the public in accordance with the as amended. The grant applications and provisions set forth in sections provisions set forth in sections the discussions could disclose 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., confidential trade secrets or commercial as amended. The grant applications and as amended. The grant applications and property such as patentable material, the discussions could disclose the discussions could disclose and personal information concerning confidential trade secrets or commercial confidential trade secrets or commercial individuals associated with the grant property such as patentable material, property such as patentable material, applications, the disclosure of which and personal information concerning and personal information concerning would constitute a clearly unwarranted individuals associated with the grant individuals associated with the grant invasion of personal privacy. applications, the disclosure of which applications, the disclosure of which Name of Committee: National Institutes of would constitute a clearly unwarranted would constitute a clearly unwarranted General Medical Sciences Special Emphasis invasion of personal privacy. invasion of personal privacy. Panel, ZGM1 BRT–6 EB. Name of Committee: National Institute of Name of Committee: National Institute of Date: March 13, 2003. Diabetes and Digestive and Kidney Diseases Diabetes and Digestive and Kidney Diseases Time: 8 a.m. to 5 p.m. Initial Review Group, Diabetes, Special Emphasis Panel, Chronic Prostatitis Agenda: To review and evaluate grant Endocrinology and Metabolic Diseases B Collaborative Research. applications. Subcommittee. Date: March 17, 2003. Place: Holiday Inn Chevy Chase, 5520 Date: March 20–21, 2003. Time: 7 a.m. to 5 p.m. Wisconsin Avenue, Chevy Chase, MD 20815. Open: March 20, 2003, 8 a.m. to 8:30 a.m. Agenda: To review and evaluate grant Contact Person: Carole H. Latker, PhD, Agenda: To review procedures and discuss applications. Scientific Review Administrator, Office of policies. Place: Embassy Suites at the Chevy Chase Scientific Review, National Institute of Place: Courtyard by Marriott, 2899 Pavilion, 4300 Military Road, NW., General Medical Sciences, National Institutes Jefferson Davis Highway, Arlington, VA Washington, DC 20015. of Health, Natcher Building, Room 1AS–13, 22202. Contact Person: Michele L. Barnard, PhD, Bethesda, MD 20892, (301) 594–2848. Closed: March 20, 2003, 8:30 a.m. to 5 p.m. Scientific Review Administrator, Review

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Branch, DEA, NIDDK, National Institutes of confidential trade secrets or commercial Place: Holiday Inn Select Bethesda, 8120 Health, Room 753, 6707 Democracy property such as patentable material, Wisconsin Ave., Bethesda, MD 20814. Boulevard, Bethesda, MD 20892–6600, (301) and personal information concerning Contact Person: Henry J. Haigler, PhD, 594–8898, [email protected]. individuals associated with the contract Scientific Review Administrator, Division of Name of Committee: National Institute of Extramural Activities, National Institute of proposals, the disclosure of which Mental Health, NIH, Neuroscience Center, Diabetes and Digestive and Kidney Diseases would constitute a clearly unwarranted Special Emphasis Panel, Interstitial Cystitis 6001 Executive Blvd., Rm. 6150, MSC 9608, Clinical Treatment Group. invasion of personal privacy. Bethesda, MD 20892–9608, 301/443–7216, Date: March 18, 2003. Name of Committee: National Institute of [email protected]. Time: 7 a.m. to 5 p.m. Allergy and Infectious Diseases Special This notice is being published less than 15 Agenda: To review and evaluate grant Emphasis Panel, In Vitro Antiviral Screening days prior to the meeting due to the timing applications. Program PART B: Hepatitis B and C Viruses. limitations imposed by the review and Place: Embassy Suites at the Chevy Chase Date: March 24–25, 2003. funding cycle. Pavilion, 4300 Military Road, NW., Time: 8:30 a.m. to 6 p.m. (Catalogue of Federal Domestic Assistance Washington, DC 20015. Agenda: To review and evaluate contract Program Nos. 93.242, Mental Health Research Contact Person: Michele L. Barnard, PhD, proposals. Grants; 93.281, Scientist Development Scientific Review Administrator, Review Place: Marriott Washington Center (RIO), Award, Scientist Development Award for Branch, DEA, NIDDK, National Institutes of 9751 Washingtonian Blvd., Gaitherburg, MD Clinicians, and Research Scientist Award; Health, Room 753, 6707 Democracy 20878. 93.282, Mental Health National Research Boulevard, Bethesda, MD 20892–6600, (301) Contact Person: Vassil St. Georgiev, PhD, Service Awards for Research Training, 594–8898, [email protected]. Scientific Review Administrator, Scientific National Institutes of Health, HHS) Name of Committee: National Institute of Review Program, Division of Extramural Dated: February 25, 2003. Diabetes and Digestive and Kidney Diseases Activities, NIAID/NIH/DHHS, Room 2102, LaVerne Y. Stringfield, 6700–B Rockledge Drive, MSC 7610, Special Emphasis Panel, AASK Cohort Director, Office of Federal Advisory Study. Bethesda, MD 20892–7610, 301–496–2550, Committee Policy. Date: April 2, 2003. [email protected]. [FR Doc. 03–5230 Filed 3–5–03; 8:45 am] Time: 8 a.m. to 4 p.m. (Catalogue of Federal Domestic Assistance BILLING CODE 4140–01–M Agenda: To review and evaluate grant Program Nos. 93.855, Allergy, Immunology, applications. and Transplantation Research; 93.856, Place: Bethesda Marriott Suites, 6711 Microbiology and Infectious Diseases Democracy Boulevard, Bethesda, MD 20817. DEPARTMENT OF HEALTH AND Research, National Institutes of Health, HHS) Contact Person: Maria E. Davila-Bloom, Dated: February 21, 2003. HUMAN SERVICES PhD, Scientific Review Administrator, Review Branch, DEA, NIDDK, Room 758, LaVerne Y. Stringfield, National Institutes of Health 6707 Democracy Boulevard, National Director, Office of Federal Advisory Institutes of Health, Bethesda, MD 20892, Committee Policy. National Institute of Mental Health; (301) 594–7637, davila- [FR Doc. 03–5227 Filed 3–5–03; 8:45 am] Notice of Closed Meeting [email protected]. BILLING CODE 4140–01–M Pursuant to section 10(d) of the (Catalogue of Federal Domestic Assistance Program Nos. 93.847, Diabetes, Federal Advisory Committee Act, as Endocrinology and Metabolic Research; DEPARTMENT OF HEALTH AND amended (5 U.S.C. Appendix 2), notice 93.848, Digestive Diseases and Nutrition HUMAN SERVICES is hereby given of the following Research; 93.849, Kidney Diseases, Urology meeting. and Hematogloy Research, National Institutes National Institutes of Health The meeting will be closed to the of Health, HHS) public in accordance with the Dated: February 26, 2003. National Institute of Mental Health; provisions set forth in sections LaVerne Y. Stringfield, Notice of Closed Meeting 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and Director, Office of Federal Advisory Pursuant to section 10(d) of the Committee Policy. the discussions could disclose Federal Advisory Committee Act, as confidential trade secrets or commercial [FR Doc. 03–5225 Filed 3–5–03; 8:45 am] amended (5 U.S.C. Appendix 2), notice BILLING CODE 4140–01–M property such as patentable material, is hereby given of the following and personal information concerning meeting. individuals associated with the grant The meeting will be closed to the applications, the disclosure of which DEPARTMENT OF HEALTH AND public in accordance with the would constitute a clearly unwarranted HUMAN SERVICES provisions set forth in sections invasion of personal privacy. National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and Name of Committee: National Institute of the discussions could disclose Mental Health Special Emphasis Panel, National Institute of Allergy and Translational Research Center. Infectious Diseases; Notice of Closed confidential trade secrets or commercial Date: March 20–21, 2003. Meeting property such as patentable material, Time: 9 a.m. to 5 p.m. and personal information concerning Agenda: To review and evaluate grant Pursuant to section 10(d) of the individuals associated with the grant applications. Federal Advisory Committee Act, as applications, the disclosure of which Place: Holiday Inn Select Bethesda, 8120 amended (5 U.S.C. appendix 2), notice would constitute a clearly unwarranted Wisconsin Ave., Bethesda, MD 20814. is hereby given of the following invasion of personal privacy. Contact Person: Benjamin Xu, PhD, meeting. Scientific Review Administrator, Division of The meeting will be closed to the Name of Committee: National Institute of Extramural Activities, National Institute of Mental Health Special Emphasis Panel. RFA: public in accordance with the Mental Health, NIH, Neuroscience Center, State Implementation of EBPs. 6001 Executive Boulevard, Room 6143, MSC provisions set forth in sections Date: March 10–11, 2003. 9608, Bethesda, MD 20892–9608. 301–443– 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 8 a.m. to 5 p.m. 1178. [email protected]. as amended. The contract proposals and Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance the discussions could disclose applications. Program Nos. 93.242, Mental Health Research

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Grants; 93.281, Scientist Development DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND Award, Scientist Development Award for HUMAN SERVICES HUMAN SERVICES Clinicians, and Research Scientist Award; 93.282, Mental Health National Research National Institutes of Health National Institutes of Health Service Awards for Research Training, National Institutes of Health, HHS) National Institute of Environmental National Institute of Allergy and Dated: February 25, 2003. Health Sciences; Notice of Closed Infectious Diseases; Notice of Closed LaVerne Y. Stringfield, Meeting Meeting Director, Office of Federal Advisory Pursuant to section 10(d) of the Committee Policy. Pursuant to section 10(d) of the Federal Advisory Committee Act, as [FR Doc. 03–5231 Filed 3–5–03; 8:45 am] Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice BILLING CODE 4140–01–M amended (5 U.S.C. Appendix 2), notice is hereby given of the following is hereby given of the following meeting. meeting. The meeting will be closed to the DEPARTMENT OF HEALTH AND public in accordance with the HUMAN SERVICES The meeting will be closed to the public in accordance with the provisions set forth 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. provisions set forth in sections National Institutes of Health The contract proposals and the 552b(c)(4) and 552b(c)(6), title 5 U.S.C., National Institute of Allergy and discussions could disclose confidential as amended. The grant applications and trade secrets or commercial property Infectious Diseases; Notice of Closed the discussions could disclose Meeting such as patentable material, and confidential trade secrets or commercial personal information concerning property such as patentable material, individuals associated with the contract Pursuant to section 10(d) of the and personal information concerning Federal Advisory Committee Act, as proposals, the disclosure of which individuals associated with the grant amended (5 U.S.C. Appendix 2), notice would constitute a clearly unwarranted applications, the disclosure of which is hereby given of the following invasion of personal privacy. meeting. would constitute a clearly unwarranted Name of Committee: National Institute of invasion of personal privacy. The meeting will be closed to the Allergy and Infectious Diseases Special Emphasis Panel, In Vitro Antiviral Screening public in accordance with the Name of Committee: National Institute of Environmental Health Sciences Special Program PART A: Human Papilloma Virus. provisions set forth in sections Date: March 21, 2003. 552b(c)(4) and 552b(c)(6), title 5 U.S.C., Emphasis Panel, Review of PO1s. Time: 10 a.m. to 4 p.m. as amended. The grant applications and Date: April 9, 2003. Agenda: To review and evaluate contract the discussions could disclose Agenda: To review and evaluate grant proposals. confidential trade secrets or commercial applications. Place: National Institute of Health/NIAID, property such as patentable material, Place: NIEHS, Building 4401, 79 T. W. Fernwood Building, 10401 Fernwood Alexander Drive, Conference Room 122, Building, 2C–07, Bethesda, MD 20892. and personal information concerning (Telephone conference call.) individuals associated with the grant Research Triangle Park, NC 27709. (Telephone conference call.) Contact Person: Vassil St. Georgiev, PhD, applications, the disclosure of which Scientific Review Administrator, Scientific Contact Person: Sally Eckert-Tilotta, PhD, would constitute a clearly unwarranted Review Program, Division of Extramural National Inst. of Environmental Health invasion of personal privacy. Activities, NIAID/NIH/DHHS, Room 2102, Sciences, Office of Program Operations, 6700–B Rockledge Drive, MSC 7610, Name of Committee: National Institute of Scientific Review Branch, P.O. Box 12233, Bethesda, MD 20892–7610. 301-496-2550. Allergy and Infectious Disease Special MD EC–30, Research Triangle Park, NC [email protected]. Emphasis Panel, Mentored Clinical Scientist 27709. 919/541–1446. Development Award. [email protected]. (Catalogue of Federal Domestic Assistance Date: March 20, 2003. Program Nos. 93.855, Allergy, Immunology, Time: 12 p.m. to 2 p.m. (Catalogue of Federal Domestic Assistance and Transplantation Research; 93.856, Agenda: To review and evaluate grant Program Nos. 93.113, Biological Response to Microbilogy and Infectious Diseases applications. Environmental Health Hazards; 93.114, Research, National Institutes of Health, HHS) Place: National Institutes of Health, Applied Toxicological Research and Testing; Dated: February 25, 2003. Rockledge 6700, 6700B Rockledge Drive, 93.115, Biometry and Risk Estimation— LaVerne Y. Stringfield, Bethesda, MD 20817. (Telephone conference Health Risks from Environmental Exposures; Director, Office of Federal Advisory call.) 93.142, NIEHS Hazardous Waste Worker Committee Policy. Contact Person: Eleazar Cohen, PhD, Scientific Review Administrator, NIAID/ Health and Safety Training; 93.143, NIEHS [FR Doc. 03–5234 Filed 3–3–03; 8:45 am] DEA, Scientific Review Program, Room 2220, Superfund Hazardous Substances—Basic BILLING CODE 4140–01–M 6700B Rockledge Drive, MSC–7616, Research and Education; 93.894, Resources Bethesda, MD 20892. (301) 435–3564. and Manpower Development in the [email protected]. Environmental Health Sciences, National DEPARTMENT OF HEALTH AND (Catalogue of Federal Domestic Assistance Institutes of Health, HHS) HUMAN SERVICES Program Nos. 93.855, Allergy, Immunology, Dated: February 25, 2003. and Transplantation Research; 93.856, LaVerne Y. Stringfield, National Institutes of Health Microbiology and Infectious Diseases Director, Office of Federal Advisory National Institute of General Medical Research, National Institutes of Health, HHS) Committee Policy. Dated: February 25, 2003. Sciences; Notice of Closed Meeting [FR Doc. 03–5233 Filed 3–5–03; 8:45 am] LaVerne Y. Stringfield, Pursuant to section 10(d) of the BILLING CODE 4140–01–M Director, Office of Federal Advisory Federal Advisory Committee Act, as Committee Policy. amended (5 U.S.C. Appendix 2), notice [FR Doc. 03–5232 Filed 3–5–03; 8:45 am] is hereby given of the following BILLING CODE 4140–01–M meeting.

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The meeting will be closed to the would constitute a clearly unwarranted Place: Holiday Inn Select Bethesda, 8120 public in accordance with the invasion of personal privacy. Wisconsin Ave, Bethesda, MD 20814. provisions set forth in sections Contact Person: Richard E. Weise, PhD, Name of Committee: National Institute of Scientific Review Administrator, Division of 552b(c)(4) and 552b(c)(6), title 5 U.S.C., General Medical Sciences Special Emphasis as amended. The grant applications and Extramural Activities, National Institute of Panel, MARC 7 PR SEP. Mental Health, NIH, Neuroscience Center, Date: March 17, 2003. the discussions could disclose 6001 Executive Boulevard, Room 6140, Time: 8 a.m. to 5 p.m. confidential trade secrets or commercial MSC9606, Bethesda, MD 20892–9606. 301– Agenda: To review and evaluate grant property such as patentable material, 443–1225. [email protected]. and personal information concerning applications. Place: Holiday Inn Select Bethesda, 8120 (Catalogue of Federal Domestic Assistance individuals associated with the grant Wisconsin Ave, Bethesda, MD 20814. Program Nos. 93.242, Mental Health Research applications, the disclosures of which Contact Person: Richard I. Martinez, PhD, Grants; 93.281, Scientist Development would constitute a clearly unwarranted Scientific Review Administrator, Office of Award, Scientist Development Award for invasion of personal privacy. Scientific Review, National Institute of Clinicians, and Research Scientist Award; Name of Committee: National Institute of General Medical Sciences, National Institute 93.282, Mental Health National Research General Medical Sciences Special Emphasis of Health, Natcher Building, Room 1AS–19G, Service Awards for Research Training, Panel, MBRS 7 ES SEP. Bethesda, MD 20892–6200. (301) 594–2849. National Institutes of Health, HHS) Date: March 24, 2003. This notice is being published less than 15 Dated: February 21, 2003. days prior to the meeting due to the timing Time: 8 a.m. to 5 p.m. LaVerne Y. Stringfield, limitations imposed by the review and Agenda: To review and evaluate grant funding cycle. Director, Office of Federal Advisory applications. Committee Policy. Place: Holiday Inn Select Bethesda, 8120 (Catalogue of Federal Domestic Assistance [FR Doc. 03–5238 Filed 3–5–03; 8:45 am] Wisconsin Ave., Bethesda, MD 20814. Program Nos. 93.375, Minority Biomedical Contact Person: Richard I. Martinez, PhD, Research Support; 93.821, Cell Biology and BILLING CODE 4140–01–M Scientific Review Administrator, Office of Biophysics Research; 93.859, Pharmacology, Scientific Review, National Institute of Physiology, and Biological Chemistry General Medical Sciences, National Institutes Research; 93.862, Genetics and DEPARTMENT OF HEALTH AND of Health, Natcher Building, Room 1AS–19G, Developmental Biology Research; 93.88, HUMAN SERVICES Bethesda, MD 20892–6200. (301) 594–2849. Minority Access to Research Careers; 93.96, Special Minority Initiatives, National National Institutes of Health (Catalogue of Federal Domestic Assistance Institutes of Health, HHS) Program Nos. 93.375, Minority Biomedical Dated: February 25, 2003. Center for Scientific Review; Notice of Research Support, 93.821, Cell Biology and LaVerne Y. Stringfield, Closed Meetings Biophysics Research; 93.859, Pharmacology, Director, Office of Federal Advisory Physiology, and Biological Chemistry Committee Policy. Pursuant to section 10(d) of the Research; 93.862, Genetics and Federal Advisory Committee Act, as Developmental Biology Research; 93.88, [FR Doc. 03–5236 Filed 3–5–03; 8:45 am] Minority Access to Research Careers; 93.96, BILLING CODE 4140–01–M amended (5 U.S.C. appendix 2), notice Special Minority Initiatives, National is hereby given of the following Institutes of Health, HHS) meetings. Dated: February 25, 2003. DEPARTMENT OF HEALTH AND The meetings will be closed to the LaVerne Y. Stringfield, HUMAN SERVICES public in accordance with the Director, Office of Federal Advisory provisions set forth in sections National Institutes of Health Committee Policy. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., [FR Doc. 03–5235 Filed 3–5–03; 8:45 am] National Institute of Mental Health; as amended. The grant applications and BILLING CODE 4140–01–M Notice of Closed Meeting the discussions could disclose confidential trade secrets or commercial Pursuant to section 10(d) of the property such as patentable material, DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as and personal information concerning HUMAN SERVICES amended (5 U.S.C. Appendix 2), notice individuals associated with the grant is hereby given of the following applications, the disclosure of which National Institutes of Health meeting. would constitute a clearly unwarranted The meeting will be closed to the invasion of personal privacy. National Institute of General Medical public in accordance with the Sciences; Notice of Closed Meeting provisions set forth in sections Name of Committee: Center for Scientific Review Special Emphasis Panel, SNEM 3 552b(c)(4) and 552b(c)(6), title 5 U.S.C., Pursuant to section 10(d) of the Member Application. as amended. The grant applications and Federal Advisory Committee Act, as Date: March 10, 2003. the discussions could disclose amended (5 U.S.C. Appendix 2), notice Time: 1:30 p.m. to 3:30 p.m. confidential trade secrets or commercial is hereby given of the following Agenda: To review and evaluate grant property such as patentable material, applications. meeting. and personal information concerning Place: National Institutes of Health, 6701 The meeting will be closed to the individuals associated with the grant Rockledge Drive, Bethesda, MD 20892 public in accordance with the applications, the disclosure of which (Telephone Conference Call). provisions set forth in sections would constitute a clearly unwarranted Contact Person: Karin F. Helmers, PhD, Scientific Review Administrator, Center for 552b(c)(4) and 552b(c)(6), title 5 U.S.C., invasion of personal privacy. as amended. The grant applications and Scientific Review/SNEM IRG, 6701 the discussions could disclose Name of Committee: National Institute of Rockledge Drive, Room 3166, MSC 7770, Bethesda, MD 20892, (301) 435–1017, confidential trade secrets or commercial Mental Health Special Emphasis Panel, MH Research Education Grants. [email protected]. property such as patentable material, Date: March 12, 2003. This notice is being published less than 15 and personal information concerning Time: 8 a.m. to 5:30 p.m. days prior to the meeting due to the timing individuals associated with the grant Agenda: To review and evaluate grant limitations imposed by the review and applications, the disclosure of which applications. funding cycle.

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Name of Committee: Center for Scientific limitations imposed by the review and This notice is being published less than 15 Review Special Emphasis Panel, NURS funding cycle. days prior to the meeting due to the timing Member Applications. Name of Committee: Center for Scientific limitations imposed by the review and Date: March 11, 2003. Review Special Emphasis Panel, BISTI pre- funding cycle. Time: 3:30 p.m. to 6 p.m. Centers of Excellence in Biomedical Name of Committee: Center for Scientific Agenda: To review and evaluate grant Computing. Review Special Emphasis Panel, Bacterial applications. Date: March 13–14, 2003. Pathogenesis and Biodefense. Place: National Institutes of Health, 6701 Time: 11 a.m. to 5 p.m. Date: March 17–18, 2003. Rockledge Drive, Bethesda, MD 20892, Agenda: To review and evaluate grant Time: 8 p.m. to 5 p.m. (Telephone Conference Call). applications. Agenda: To review and evaluate grant Contact Person: Karin F. Helmers, PhD, Place: Holiday Inn Select Bethesda, 8120 applications. Scientific Review Administrator, Center for Wisconsin Ave., Bethesda, MD 20814. Place: Holiday Inn Select Bethesda, 8120 Scientific Review/SNEM IRG, 6701 Contact Person: Peter Lyster, PhD, Wisconsin Avenue, Potomac Room, Rockledge Drive, Room 3166, MSC 7770, Scientific Review Administrator, Center for Bethesda, MD 20814. Bethesda, MD 20892, (301) 435–1017, Scientific Review, National Institutes of Contact Person: Melody Mills, PhD, [email protected]. Health, 6701 Rockledge Drive, Room 5218, Scientific Review Administrator, Center for This notice is being published less than 15 MSC 7806, Bethesda, MD 20892, (301) 435– Scientific Review, National Institutes of days prior to the meeting due to the timing 1256, [email protected]. Health, 6701 Rockledge Drive, MSC 7808, limitations imposed by the review and This notice is being published less than 15 Room 3206, Bethesda, MD 20892, (301) 435– funding cycle. days prior to the meeting due to the timing 0903. Name of Committee: Center for Scientific limitations imposed by the review and This notice is being published less than 15 Review Special Emphasis Panel, Diagnosis funding cycle. days prior to the meeting due to the timing and Treatment of Cancer. Name of Committee: Center for Scientific limitations imposed by the review and Date: March 13–14, 2003. Review Special Emphasis Panel, funding cycle. Time: 8:30 a.m. to 5:30 p.m. Antileukemic Agents. Name of Committee: Center for Scientific Agenda: To review and evaluate grant Date: March 13, 2003. Review Special Emphasis Panel, Coupled applications. Time: 1 p.m. to 2 p.m. folding in Ikappa B/NF Kappa B. Place: Hyatt Regency Bethesda, One Agenda: To review and evaluate grant Date: March 17, 2003. Bethesda Metro Center, 7400 Wisconsin applications. Time: 8 a.m. to 4 p.m. Avenue, Bethesda, MD 20814. Place: National Institutes of Health, 6701 Agenda: To review and evaluate grant Contact Person: Shen K. Yang, PhD, Rockledge Drive, Bethesda, MD 20892, applications. Scientific Review Administrator, Center for (Telephone Conference Call). Place: One Washington Circle Hotel, One Scientific Review, National Institutes of Contact Person: Chhanda L. Ganguly, PhD, Washington Circle, Washington, DC 20037. Health, 6701 Rockledge Drive, Room 6198, Scientific Review Administrator, Center for Contact Person: Arnold Revzin, PhD, MSC 7804, Bethesda, MD 20892, (301) 435– Scientific Review, National Institutes of Scientific Review Administrator, Center for 1213, [email protected]. Health, 6701 Rockledge Drive, Room 5156, Scientific Review, National Institutes of This notice is being published less than 15 MSC 7842, Bethesda, MD 20892, (301) 435– Health, 6701 Rockledge Drive, Room 4184, days prior to the meeting due to the timing 1739, [email protected]. MSC 7824, Bethesda, MD 20892, (301) 435– limitations imposed by the review and This notice is being published less than 15 1153. funding cycle. days prior to the meeting due to the timing This notice is being published less than 15 Name of Committee: Center for Scientific limitations imposed by the review and days prior to the meeting due to the timing Review Special Emphasis Panel, Parasite funding cycle. limitations imposed by the review and Vectors. Name of Committee: Center for Scientific funding cycle. Date: March 13–14, 2003. Review Special Emphasis Panel, Name of Committee: Center for Scientific Time: 8:30 a.m. to 5 p.m. Psychopathology and Adult Disorders. Review Special Emphasis Panel, ZRG1 VACC Agenda: To review and evaluate grant Date: March 14, 2003. 03: Vaccine Innovation Grant Applications. applications. Time: 9 a.m. to 5 p.m. Date: March 17, 2003. Place: Holiday Inn Select Bethesda, 8120 Agenda: To review and evaluate grant Time: 8:30 a.m. to 1 p.m. Wisconsin Ave., Bethesda, MD 20814. applications. Agenda: To review and evaluate grant Contact Person: Jean Hickman, PhD, Place: Melrose Hotel, 2430 Pennsylvania applications. Scientific Review Administrator, Center for Ave., NW., Washington, DC 20037. Place: Hyatt Regency Bethesda, One Scientific Review, National Institutes of Contact Person: Dana Plude, PhD, Bethesda Metro Center, 7400 Wisconsin Health, 6701 Rockledge Drive, Room 4194, Scientific Review Administrator, Center for Avenue, Bethesda, MD 20814. MSC 7808, Bethesda, MD 20892, (301) 435– Scientific Review, National Institutes of Contact Person: Mary Clare Walker, PhD, 1146. Health, 6701 Rockledge Drive, Bethesda, MD Scientific Review Administrator, Center for This notice is being published less than 15 20892, 301–435–1856; [email protected]. Scientific Review, National Institutes of days prior to the meeting due to the timing This notice is being published less than 15 Health, 6701 Rockledge Drive, Room 5104, limitations imposed by the review and days prior to the meeting due to the timing MSC 7852, Bethesda, MD 20892, (301) 435– funding cycle. limitations imposed by the review and 1165. Name of Committee: Center for Scientific funding cycle. This notice is being published less than 15 Review Special Emphasis Panel, SBIR. Name of Committee: Center for Scientific days prior to the meeting due to the timing Date: March 13–14, 2003. Review Special Emphasis Panel, Transporter. limitations imposed by the review and Time: 9 a.m. to 4 p.m. Date: March 14, 2003. funding cycle. Agenda: To review and evaluate grant Time: 1 p.m. to 2 p.m. Name of Committee: Center for Scientific applications. Agenda: To review and evaluate grant Review Special Emphasis Panel, EAR–10. Place: Jefferson Hotel, 1200 16th Street applications. Date: March 17, 2003. NW., Washington, DC 20036. Place: National Institutes of Health, 6701 Time: 8:30 a.m. to 5 p.m. Contact Person: Denise Wiesch, PhD, Rockledge Drive, Bethesda, MD 20892, Agenda: To review and evaluate grant Scientific Review Administrator, Center for (Telephone Conference Call). applications. Scientific Review, National Institutes of Contact Person: Chhanda L. Ganguly, PhD, Place: The Golden Tulip, 7740 Wisconsin Health, 6701 Rockledge Drive, Room 3150, Scientific Review Administrator, Center for Avenue, Bethesda, MD 20814. MSC 7770, Bethesda, MD 20892, (301) 435– Scientific Review, National Institutes of Contact Person: Joseph Kimm, PhD, 0684. Health, 6701 Rockledge Drive, Room 5156, Scientific Review Administrator, Center for This notice is being published less than 15 MSC 7842, Bethesda, MD 20892, (301) 435– Scientific Review, National Institutes of days prior to the meeting due to the timing 1739, [email protected]. Health, 6701 Rockledge Drive, Room 5178,

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MSC 7844, Bethesda, MD 20892, (301) 435– Place: The Westin Bonaventure Hotel and Scientific Review, National Institutes of 1249. Suites, 404 South Figueroa Street, Los Health, 6701 Rockledge Drive, Room 4116, This notice is being published less than 15 Angeles, CA 90071. MSC 7816, Bethesda, MD 20892, 301/435– days prior to the meeting due to the timing Contact Person: Bill Bunnag, PhD, 1781, [email protected]. limitations imposed by the review and Scientific Review Administrator, Center for Name of Committee: Center for Scientific funding cycle. Scientific Review, National Institutes of Review Special Emphasis Panel, ZRG1 PTHB Health, 6701 Rockledge Drive, Room 5124, Name of Committee: Center for Scientific 02. MSC 7854, Bethesda, MD 20892–7854, (301) Review Special Emphasis Panel, Date: March 18, 2003. 435–1177, [email protected]. Collaborative Projects. Time: 1 p.m. to 4 p.m. This notice is being published less than 15 Agenda: To review and evaluate grant Date: March 17, 2003. days prior to the meeting due to the timing Time: 1 p.m. to 2 p.m. applications. limitations imposed by the review and Place: National Institutes of Health, 6701 Agenda: To review and evaluate grant funding cycle. applications. Rockledge Drive, Bethesda, MD 20892, Name of Committee: Center for Scientific Place: National Institutes of Health, 6701 (Telephone Conference Call). Review Special Emphasis Panel, ZRG1: SSS– Rockledge Drive, Bethesda, MD 20892, Contact Person: Martin L. Padarathsingh, 7(40): Small Business Application on PhD, Scientific Review Administrator, Center (Telephone Conference Call). Imaging Technologies. Contact Person: Sally Ann Amero, PhD, for Scientific Review, National Institutes of Date: March 17–19, 2003. Health, 6701 Rockledge Drive, Room 6212, Scientific Review Administrator, Center for Time: 7 p.m. to 5 p.m. MSC 7804, Bethesda, MD 20892, (301) 435– Scientific Review, Genetic Sciences Agenda: To review and evaluate grant 1717. Integrated Review Group, National Institutes applications. Name of Committee: Center for Scientific of Health, 6701 Rockledge Drive, Room 2206, Place: Holiday Inn, 222 South Cayuga Review Special Emphasis Panel, Biology of MSC 7890, Bethesda, MD 20892–7890, (301) Street, Ithaca, NY 14850. Melanoma. 435–1159, [email protected]. Contact Person: Robert J. Nordstrom, PhD, Date: March 18, 2003. This is notice is being published less than Scientific Review Administrator, Center for Time: 1 p.m. to 3 p.m. 15 days prior to the meeting due to the Scientific Review, National Institutes of Agenda: To review and evaluate grant timing limitations imposed by the review and Health, 6701 Rockledge Drive, Room 5118, applications. funding cycle. MSC 7854, Bethesda, MD 20892, (301) 435– Place: National Institutes of Health, 6701 1175, [email protected]. Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892, This notice is being published less than 15 Review Special Emphasis Panel, Structure (Telephone Conference Call). days prior to the meeting due to the timing Based Anticancer Drug Design. Contact Person: Victor A. Fung, PhD, limitations imposed by the review and Date: March 17, 2003. Scientific Review Administrator, Oncological funding cycle. Time: 2 p.m. to 3 p.m. Sciences Initial Review Group, Center for Agenda: To review and evaluate grant Name of Committee: Cardiovascular Scientific Review, National Institutes of applications. Sciences Integrated Review Group, Health, 6701 Rockledge Drive, Room 6178, Place: National Institutes of Health, 6701 Hematology Subcommittee 2. MSC 7804, Bethesda, MD 20814–9692, (301) Rockledge Drive, Bethesda, MD 20892, Date: March 18–19, 2003. 435–3504, [email protected]. Time: 8:30 a.m. to 2 p.m. (Telephone Conference Call). Name of Committee: Center for Scientific Agenda: To review and evaluate grant Contact Person: Syed M. Quadri, PhD, Review Special Emphasis Panel, ZRG1 CVB applications. Scientific Review Administrator, Center for 02(M): Cardiac mapping. Place: Residence Inn Bethesda, 7335 Scientific Review, National Institutes of Date: March 18, 2003. Wisconsin Avenue, Bethesda, MD 20814. Health, 6701 Rockledge Drive, Room 6210, Time: 2 p.m. to 3 p.m. Contact Person: Jerrold Fried, PhD, MSC 7804, Bethesda, MD 20892, (301) 435– Agenda: To review and evaluate grant Scientific Review Administrator, Center for 1211. applications. This notice is being published less than 15 Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4126, Place: National Institutes of Health, 6701 days prior to the meeting due to the timing Rockledge Drive, Bethesda, MD 20892, limitations imposed by the review and MSC 7802, Bethesda, MD 20892–7802, (301) 435–1177, [email protected]. (Telephone Conference Call). funding cycle. Contact Person: Russell T. Dowell, PhD, Name of Committee: Center for Scientific Name of Committee: Center for Scientific Scientific Review Administrator, Center for Review Special Emphasis Panel, ZRG1 CVB Review Special Emphasis Panel, ZRG1 SSS– Scientific Review, National Institutes of C (05) Members Reviews in Developmental 03(M):CR protein. Health, 6701 Rockledge Drive, Room 4128, Disabilities. Date: March 17, 2003. MSC 7814, Bethesda, MD 20892, (301) 435– Date: March 18, 2003. Time: 2 p.m. to 3 p.m. 1850, [email protected]. Time: 10 a.m. to 11 a.m. Agenda: To review and evaluate grant Agenda: To review and evaluate grant Name of Committee: Center for Scientific applications. applications. Review Special Emphasis Panel, Chronic Place: National Institutes of Health, 6701 Place: National Institutes of Health, 6701 Fatigue Syndrome/Fibromyalgia Syndrome Rockledge Drive, Bethesda, MD 20892, Rockledge Drive, Bethesda, MD 20892, SBIR/STRR Panel. (Telephone Conference Call). (Telephone Conference Call). Date: March 18, 2003. Contact Person: Russell T. Dowell, PhD, Contact Person: Mary Sue Krause, MED, Time: 2 p.m. to 3 p.m. Scientific Review Administrator, Center for Scientific Review Administrator, Center for Agenda: To review and evaluate grant Scientific Review, National Institutes of Scientific Review, National Institutes of applications. Health, 6701 Rockledge Dr., Rm. 4128, MSC Health, 6701 Rockledge Drive, Room 3182, Place: The River Inn, 924 25th Street, 7814, Bethesda, MD 20892, (301) 435–1850, MSC 7848, Bethesda, MD 20892, (301) 435– Washington, DC 20037. [email protected]. 0902, [email protected]. Contact Person: J Terrell Hoffeld, DDS, This notice is being published less than 15 Name of Committee: Center for Scientific PhD, Dental Officer, USPHS, Center for days prior to the meeting due to the timing Review Special Emphasis Panel, Chronic Scientific Review, National Institutes of limitations imposed by the review and Fatigue Syndrome/Fibromyalgia Syndrome. Health, 6701 Rockledge Drive, Room 4116, funding cycle. Date: March 18, 2003. MSC 7816, Bethesda, MD 20892, 301/435– Name of Committee: Center for Scientific Time: 10 a.m. to 2 p.m. 1781 [email protected]. Review Special Emphasis Panel, ZRG1 SSS 9 Agenda: To review and evaluate grant Name of Committee: Center for Scientific (40) Site Visit. applications. Review Special Emphasis Panel, Date: March 17–19, 2003. Place: The River Inn, 824 25th Street, 105, Developmental Disabilities: Austism and Time: 4 p.m. to 11 a.m. Washington, DC 20037. Fragile-X. Agenda: To review and evaluate grant Contact Person: J Terrell Hoffeld, DDS, Date: March 18, 2003. applications and/or proposals. PhD, Dental Officer, USPHS, Center for Time: 12 p.m. to 3 p.m.,

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Agenda: To review and evaluate grant MSC 7808, Bethesda, MD 20892, 301–435– formulation, and presentation; (2) applications. 1146. administers and coordinates budget Place: National Institutes of Health, One Name of Committee: Center for Scientific management after appropriations have Democracy Plaza, 6701 Democracy Review Special Emphasis Panel, Pediatric been made, including reprogramming Boulevard, Bethesda, MD 20892. Oncology Database. and coordination of the use of the Contact Person: Anita Miller Sostek, PhD, Date: March 19, 2003. Scientific Review Administrator, Center for Director’s Discretionary Fund and Time: 1:30 p.m. to 2:30 p.m. transfer authority; and (3) provides Scientific Review, National Institutes of Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 4100, applications. budget advice to the Director, NIH, and MSC 7184, Bethesda, MD 20892, 301–435– Place: National Institutes of Health, 6701 senior OD and Institute and Center (IC) 1260, [email protected]. Rockledge Drive, Bethesda, MD 20892, officials. Name of Committee: Center for Scientific (Telephone Conference Call). Budget Analysis and Modeling Staff Review Special Emphasis Panel, ZRG1 BECM Contact Person: Elaine Sierra-Rivera, PhD, (NAM8–2, formerly HNAM8–2). (1) 40 P: Program Project. Scientific Review Administrator, Center for Performs modeling of grant and other Date: March 19–21, 2003. Scientific Review, National Institute of budget data for projecting major Time: 8 a.m. to 5 p.m. Health, 6701 Rockledge Drive, Room 6184, resources as part of the NIH budget Agenda: To review and evaluate grant MSC 7804, Bethesda, MD 20892, 301–435– development and formulation process; applications. 1779. [email protected]. Place: Melrose Hotel, 2430 Pennsylvania (2) conducts budget analysis and Ave., NW., Washington, DC 20037. (Catalogue of Federal Domestic Assistance designs and presents a variety of Contact Person: Noni Byrnes, PhD., Program Nos. 93–306, Comparative electronically generated tables and Scientific Review Administrator, Center for Medicine, 93.306; 93.333, Clinical Research, visuals to support budget submissions Scientific Review, National Institutes of 93.333, 93.337, 93.393–93.396, 93.837– to HHS, OMB, and Congress; (3) Health, 6701 Rockledge Drive, Room 4196, 93.844, 93.846–93.878, 93.892, 93.893, completes special analysis projects for MSC 7806, Bethesda, MD 20892, 301–435– National Institutes of Health, HHS) the NIH Director; (4) plans, develops, 1217, [email protected]. Dated: February 25, 2003. and evaluates budget automation and Name of Committee: Center for Scientific LaVerne Y. Stringfield, provides recommendations on the Review Special Emphasis Panel, Director, Office of Federal Advisory selection and/or design of software that Bioengineering Research Partnerships: Committee Policy. provides trend analyses; and (5) Genetics. [FR Doc. 03–5226 Filed 3–5–03; 8:45 am] manages the Office of Budget Web page. Date: March 19, 2003. BILLING CODE 4140–01–M Time: 9 a.m. to 11 a.m. Budget Formulation, Presentation, Agenda: To review and evaluate grant and Execution Branch (NAM82, applications. formerly HNAM82). (1) Provides Place: National Institutes of Health, 6701 DEPARTMENT OF HEALTH AND guidance to and coordinates with ICs on Rockledge Drive, Bethesda, MD 20892, HUMAN SERVICES budget policy, planning, formulation, (Telephone Conference Call). justification, and execution of Contact Person: Michael R. Schaefer, PhD, National Institutes of Health appropriated and nonappropriated Scientific Review Administrator, Genetic Statement of Organization, Functions, funds; (2) serves as the focal point at Sciences IRG, Center for Scientific Review, NIH for the interpretation, preparation, and Delegations of Authority National Institutes of Health, 6701 Rockledge dissemination, and implementation of Drive, Room 6166, MSC 7890, Bethesda, MD 20892, (301) 435–2477, Part N, National Institutes of Health, HHS, OMB, and congressional financial [email protected]. of the Statement of Organization, policies and procedures; (3) advises NIH Functions, and Delegations of Authority organizations on the preparation, Name of Committee: Center for Scientific receipt, and review of budgetary data Review Special Emphasis Panel, Biology of for the Department of Health and Trypanosomes. Human Services (40 FR 22859, May 27, required for formulation and Date: March 19, 2003. 1975, as amended most recently at 67 presentation of the budget; (4) Time: 1 p.m. to 3 p.m. FR 54441, August 22, 2002, and administers all assessments of ICs from Agenda: To review and evaluate grant redesignated from Part HN as Part N at appropriated funds; (5) coordinates and applications. 60 FR 56606, November 9, 1995), is consolidates NIH budget execution, Place: National Institutes of Health, Wilco amended as set forth below to reflect the administration, and financial reporting, Building, 6000 Executive Boulevard, transfer of the budget function from the which includes development of Bethesda, MD 20892, (Telephone Conference Office of the Director, NIH, to the Office apportionments, allotments, allowances, Call). of Management, Office of the Director, reprogramming, transfers, reserves, and Contact Person: Robert Freund, PhD., similar matters; (6) implements fiscal Scientific Review Administrator, Center for NIH. Scientific Review, National Institutes of Section N–B, Organization and controls; and (7) develops, coordinates, Health, 6701 Rockledge Drive, Room 4198, Functions, under the heading Office of and monitors all functions related to the MSC 7808, Bethesda, MD 20892, 301–435– the Director (NA, formerly HNA) is management of full-time equivalent 1050,[email protected]. amended as follows: (FTE) resources and makes Name of Committee: Center for Scientific (1) Immediately following the recommendations on the allocation of Review Special Emphasis Panel, Bacterial statement for the Office of Science FTEs/positions for NIH. Genomics. Policy (NA6, formerly HNA6), the title Budget Reporting and Legislative Date: March 19, 2003. and functional statement of the Office of Branch (NAM83, formerly HNAM83). (1) Time: 1 p.m. to 3 p.m. Budget (NA7, formerly HNA7) are Reviews, interprets, and assesses the Agenda: To review and evaluate grant deleted in their entirety. impact of new and proposed legislation applications. (2) Under the heading Office of on the formulation and execution of the Place: National Institutes of Health, 6701 NIH budget; (2) collects and reports Rockledge Drive, Bethesda, MD 20892, Management (NAM, formerly HNAM), (Telephone Conference Call). insert the following: disease and other areas of special Contact Person: Jean Hickman, PhD, Office of Budget (NAM8, formerly interest expenditure data and responds Scientific Review Administrator, Center for HNAM8). (1) Exercises primary to requests from the public and Scientific Review, National Institutes of responsibility for NIH-wide budget Congress on funding of research in these Health, 6701 Rockledge Drive, Room 4198, policy, including planning, analysis, areas; (3) tracks and analyzes

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appropriations bills through House and to: Susan Ano, Office of Technology contemplating the grant of an exclusive Senate passage and conference; (4) Transfer, National Institutes of Health, license to practice the invention manages the process of identifying 6011 Executive Boulevard, Suite 325, embodied in United States Patent reports and significant items requested Rockville, MD 20852–3804; E-mail: Application 60/339,751 filed December by congressional appropriations [email protected]; Telephone: (301) 435– 17, 2001 and its foreign equivalents, committees and assigns responsibility 5515; Facsimile: (301) 402–0220. entitled ‘‘GP41 Inhibitor,’’ to Virosys for drafting responses; and (5) manages SUPPLEMENTARY INFORMATION: This Pharmaceuticals, Inc., having a place of the production of materials for the invention relates to human monoclonal business in Redwood Shores, CA. The appropriations hearings, including antibodies that exhibit immunological patent rights in this invention have been instructions and clearances for opening binding affinity for the hepatitis C virus assigned to the United States of statements, production of questions and E2 glycoprotein and are cross-reactive America. answers, and clearances for transcripts. against different hepatitis C virus (HCV) DATES: Only written comments and/or Delegations of Authority Statement: strains. These antibodies may be used in All delegations and redelegations of application for a license which are passive immunoprophylaxis for the received by the NIH Office of authority to officers and employees of prevention of hepatitis C virus infection NIH that were in effect immediately Technology Transfer on or before May 5, and/or in passive immunotherapy for 2003 will be considered. prior to the effective date of this the treatment of hepatitis C. establishment and are consistent with The prospective exclusive license will ADDRESSES: Requests for a copy of the this amendment shall continue in effect, be royalty bearing and will comply with patent application, inquiries, comments pending further redelegation. the terms and conditions of 35 U.S.C. and other materials relating to the Dated: February 11, 2003. 209 and 37 CFR 404.7. The prospective contemplated license should be directed Elias A. Zerhouni, exclusive license may be granted unless, to: Susan Ano, Office of Technology Director, National Institutes of Health. within 60 days from the date of this Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, [FR Doc. 03–5212 Filed 3–5–03; 8:45 am] published Notice, NIH receives written Rockville, MD 20852–3804; E-mail: BILLING CODE 4140–01–M evidence and argument that establishes that the grant of the license would not [email protected]; Telephone: (301) 435– be consistent with the requirements of 5515; Facsimile: (301) 402–0220. DEPARTMENT OF HEALTH AND 35 U.S.C. 209 and 37 CFR 404.7. SUPPLEMENTARY INFORMATION: This HUMAN SERVICES The field of use may be limited to invention relates to a chimeric development of human monoclonal molecule, NCCG–gp41, in which the National Institutes of Health antibody biotherapeutics for the internal trimeric helical coiled-coil of treatment of HCV infections. the ectodomain of gp41 is fully exposed Prospective Grant of Exclusive Properly filed competing applications and stabilized by both fusion to a License: Human Monoclonal Antibody for a license filed in response to this minimal ectodomain core of gp41 and Biotherapeutics for the Treatment of notice will be treated as objections to by engineered intersubunit disulfide Hepatitis C (HCV) Infections the contemplated license. Comments bonds. NCCG–gp41 inhibits HIV AGENCY: National Institutes of Health, and objections submitted in response to envelope mediated cell fusion at Public Health Service, DHHS. this notice will not be made available nanomolar concentrations with an IC50 for public inspection, and, to the extent ACTION: Notice. of 16 nM. It is proposed that NCCG– permitted by law, will not be released gp41 targets the exposed C-terminal SUMMARY: This is notice, in accordance under the Freedom of Information Act, region of the gp41 ectodomain in its pre- with 35 U.S.C. 209(c)(1) and 37 CFR 5 U.S.C. 552. hairpin intermediate state, thereby 404.7(a)(1)(i), that the National Dated: February 24, 2003. preventing the formation of the Institutes of Health (NIH), Department Steven M. Ferguson, fusogenic form of the gp41 ectodomain of Health and Human Services, is Acting Director, Division of Technology that comprises a highly stable trimer of contemplating the grant of an exclusive Development and Transfer, Office of hairpins arranged in a six-helix bundle. license to practice the invention Technology Transfer. NCCG–gp41 has potential as (a) An HIV embodied in United States Patent [FR Doc. 03–5209 Filed 3–5–03; 8:45 am] therapeutic agent that inhibits cell Application 60/250,561 filed December BILLING CODE 4140–01–P entry; (b) as an AIDS vaccine and; (c) as 1, 2000 and its foreign equivalents, a component of a high throughput entitled ‘‘Monoclonal Antibodies screening assay for small molecule Specific for the E2 Glycoprotein of DEPARTMENT OF HEALTH AND inhibitors of HIV envelope mediated Hepatitis C Virus and Their Use in the HUMAN SERVICES cell fusion. Antibodies have been raised Diagnosis, Treatment, and Prevention of against NCCG–gp41 that inhibit HIV HCV,’’ to Virosys Pharmaceuticals, Inc., National Institutes of Health envelope mediated cell fusion. having a place of business in Redwood The prospective exclusive license will Shores, CA. The patent rights in this Prospective Grant of Exclusive be royalty bearing and will comply with invention have been assigned to the License: Protein Biopharmaceuticals the terms and conditions of 35 U.S.C. United States of America. for Treatment of HIV Infections 209 and 37 CFR 404.7. The prospective DATES: Only written comments and/or AGENCY: National Institutes of Health, exclusive license may be granted unless, application for a license which are Public Health Service, DHHS. within 60 days from the date of this received by the NIH Office of published Notice, NIH receives written ACTION: Notice. Technology Transfer on or before May 5, evidence and argument that establishes 2003 will be considered. SUMMARY: This is notice, in accordance that the grant of the license would not ADDRESSES: Requests for a copy of the with 35 U.S.C. 209(c)(1) and 37 CFR be consistent with the requirements of patent application, inquiries, comments 404.7(a)(1)(i), that the National 35 U.S.C. 209 and 37 CFR 404.7. and other materials relating to the Institutes of Health (NIH), Department The field of use may be limited to contemplated license should be directed of Health and Human Services, is development of protein

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biopharmaceuticals for the treatment of Workplace Drug Testing were developed Doctors Laboratory, Inc., PO Box 2658, HIV infections. in accordance with Executive Order 2906 Julia Dr., Valdosta, GA 31602, Properly filed competing applications 12564 and section 503 of Public Law (912) 244–4468 for a license filed in response to this 100–71. Subpart C of the Guidelines, DrugProof, Division of Dynacare/ notice will be treated as objections to ‘‘Certification of Laboratories Engaged Laboratory of Pathology, LLC, 1229 the contemplated license. Comments in Urine Drug Testing for Federal Madison St., Suite 500, Nordstrom and objections submitted in response to Agencies,’’ sets strict standards which Medical Tower, Seattle, WA 98104, this notice will not be made available laboratories must meet in order to (206) 386–2661/(800) 898–0180, for public inspection, and, to the extent conduct urine drug testing for Federal (Formerly: Laboratory of Pathology of permitted by law, will not be released agencies. To become certified an Seattle, Inc., DrugProof, Division of under the Freedom of Information Act, applicant laboratory must undergo three Laboratory of Pathology of Seattle, 5 U.S.C. 552. rounds of performance testing plus an Inc.) Dated: February 25, 2003. on-site inspection. DrugScan, Inc., PO Box 2969, 1119 Steven M. Ferguson, To maintain that certification a Mearns Rd., Warminster, PA 18974, Acting Director, Division of Technology laboratory must participate in a (215) 674–9310 Development and Transfer, Office of quarterly performance testing program Dynacare Kasper Medical Laboratories*, Technology Transfer. plus periodic, on-site inspections. 10150–102 St., Suite 200, Edmonton, [FR Doc. 03–5210 Filed 3–5–03; 8:45 am] Laboratories which claim to be in the Alberta, Canada TJ5 5E2, (780) 451– 3702/(800) 661–9876 BILLING CODE 4140–01–P applicant stage of certification are not to be considered as meeting the minimum ElSohly Laboratories, Inc., 5 Industrial requirements expressed in the HHS Park Dr., Oxford, MS 38655, (662) DEPARTMENT OF HEALTH AND Guidelines. A laboratory must have its 236–2609 HUMAN SERVICES letter of certification from SAMHSA, Express Analytical Labs, 3405 7th Ave., HHS (formerly: HHS/NIDA) which Suite 106, Marion, IA 52302, (319) Substance Abuse and Mental Health attests that it has met minimum 377–0500 Services Administration standards. Gamma-Dynacare Medical In accordance with Subpart C of the Laboratories*, A Division of the Current List of Laboratories Which Guidelines, the following laboratories Gamma-Dynacare Laboratory Meet Minimum Standards To Engage in meet the minimum standards set forth Partnership, 245 Pall Mall St., Urine Drug Testing for Federal in the Guidelines: London, Ontario, Canada N6A 1P4, Agencies (519) 679–1630 ACL Laboratories, 8901 W. Lincoln General Medical Laboratories, 36 South AGENCY: Substance Abuse and Mental Ave., West Allis, WI 53227, (414) Brooks St., Madison, WI 53715, (608) Health Services Administration, HHS. 328–7840/(800) 877–7016, (Formerly: 267–6225 ACTION: Notice. Bayshore Clinical Laboratory) Kroll Laboratory Specialists, Inc., 1111 ACM Medical Laboratory, Inc., 160 SUMMARY: The Department of Health and Newton St., Gretna, LA 70053, (504) Elmgrove Park, Rochester, NY 14624, 361–8989/(800) 433–3823, (Formerly: Human Services notifies Federal (585) 429–2264 agencies of the laboratories currently Laboratory Specialists, Inc.) Advanced Toxicology Network, 3560 LabOne, Inc., 10101 Renner Blvd., certified to meet standards of Subpart C Air Center Cove, Suite 101, Memphis, Lenexa, KS 66219, (913) 888–3927/ of Mandatory Guidelines for Federal TN 38118, (901) 794–5770/(888) 290– (800) 873–8845 (Formerly: Center for Workplace Drug Testing Programs (59 1150 Laboratory Services, a Division of FR 29916, 29925). A notice listing all Aegis Analytical Laboratories, Inc., 345 LabOne, Inc.) currently certified laboratories is Hill Ave., Nashville, TN 37210, (615) Laboratory Corporation of America published in the Federal Register 255–2400 Holdings, 7207 N. Gessner Rd., during the first week of each month. If Alliance Laboratory Services, 3200 Houston, TX 77040, (713) 856–8288/ any laboratory’s certification is Burnet Ave., Cincinnati, OH 45229, (800) 800–2387 suspended or revoked, the laboratory (513) 585–6870, (Formerly: Jewish Laboratory Corporation of America will be omitted from subsequent lists Hospital of Cincinnati, Inc.) Holdings, 69 First Ave., Raritan, NJ until such time as it is restored to full Associated Pathologists Laboratories, 08869, (908) 526–2400/(800) 437– certification under the Guidelines. Inc., 4230 South Burnham Ave., Suite 4986, (Formerly: Roche Biomedical If any laboratory has withdrawn from 250, Las Vegas, NV 89119–5412, (702) Laboratories, Inc.) the National Laboratory Certification 733–7866/(800) 433–2750 Laboratory Corporation of America Program during the past month, it will Baptist Medical Center—Toxicology Holdings, 1904 Alexander Dr., be listed at the end, and will be omitted Laboratory, 9601 I–630, Exit 7, Little Research Triangle Park, NC 27709, from the monthly listing thereafter. Rock, AR 72205–7299, (501) 202– (919) 572–6900/(800) 833–3984, This notice is also available on the 2783, (Formerly: Forensic Toxicology (Formerly: LabCorp Occupational internet at the following Web sites: Laboratory Baptist Medical Center) Testing Services, Inc., CompuChem http://workplace.samhsa.gov and http:// Clinical Reference Lab, 8433 Quivira Laboratories, Inc.; CompuChem www.drugfreeworkplace.gov. Rd., Lenexa, KS 66215–2802, (800) Laboratories, Inc., A Subsidiary of FOR FURTHER INFORMATION CONTACT: Mrs. 445–6917 Roche Biomedical Laboratory; Roche Giselle Hersh or Dr. Walter Vogl, Cox Health Systems, Department of CompuChem Laboratories, Inc., A Division of Workplace Programs, 5600 Toxicology, 1423 North Jefferson Member of the Roche Group) Fishers Lane, Rockwall 2 Building, Ave., Springfield, MO 65802, (800) Laboratory Corporation of America Room 815, Rockville, Maryland 20857; 876–3652/(417) 269–3093, (Formerly: Holdings, 10788 Roselle Street, San Tel.: (301) 443–6014, Fax: (301) 443– Cox Medical Centers) Diego, CA 92121, (800) 882–7272, 3031. Diagnostic Services Inc., dba DSI, 12700 (Formerly: Poisonlab, Inc.) SUPPLEMENTARY INFORMATION: Westlinks Dr., Fort Myers, FL 33913, Laboratory Corporation of America Mandatory Guidelines for Federal (239) 561–8200/(800) 735–5416 Holdings, 1120 Stateline Road West,

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Southaven, MS 38671, (866) 827– (Formerly: SmithKline Beecham DrugProof, Divison of Dynacare, 543 8042/(800) 233–6339, (Formerly: Clinical Laboratories, SmithKline Bio- South Hull St., Montgomery, AL LabCorp Occupational Testing Science Laboratories) 36103, (888) 777–9497/(334) 241– Services, Inc., MedExpress/National Quest Diagnostics Incorporated, 4770 0522, (Formerly: Alabama Reference Laboratory Center) Regent Blvd., Irving, TX 75063, (800) Laboratories, Inc.) Marshfield Laboratories, Forensic 824–6152, (Moved from the Dallas * The Standards Council of Canada (SCC) Toxicology Laboratory, 1000 North location on 03/31/01; Formerly: voted to end its Laboratory Accreditation Oak Ave., Marshfield, WI 54449, (715) SmithKline Beecham Clinical Program for Substance Abuse (LAPSA) 389–3734/(800) 331–3734 Laboratories, SmithKline Bio-Science effective May 12, 1998. Laboratories certified MAXXAM Analytics Inc.*, 5540 Laboratories) through that program were accredited to McAdam Rd., Mississauga, ON, Quest Diagnostics Incorporated, 400 conduct forensic urine drug testing as Canada L4Z 1P1, (905) 890–2555, Egypt Rd., Norristown, PA 19403, required by U.S. Department of (Formerly: NOVAMANN (Ontario) (610) 631–4600/(877) 642–2216, Transportation (DOT) regulations. As of that Inc.) (Formerly: SmithKline Beecham date, the certification of those accredited Medical College Hospitals Toxicology Clinical Laboratories, SmithKline Bio- Canadian laboratories will continue under DOT authority. The responsibility for Laboratory, Department of Pathology, Science Laboratories) conducting quarterly performance testing 3000 Arlington Ave., Toledo, OH Quest Diagnostics Incorporated, 506 E. plus periodic on-site inspections of those 43699, (419) 383–5213 State Pkwy., Schaumburg, IL 60173, LAPSA-accredited laboratories was MedTox Laboratories, Inc., 402 W. (800) 669–6995/(847) 885–2010, transferred to the U.S. DHHS, with the County Rd. D, St. Paul, MN 55112, (Formerly: SmithKline Beecham DHHS’ National Laboratory Certification (651) 636–7466/(800) 832–3244 Clinical Laboratories, International Program (NLCP) contractor continuing to MetroLab-Legacy Laboratory Services, Toxicology Laboratories) have an active role in the performance testing 1225 NE 2nd Ave., Portland, OR Quest Diagnostics Incorporated, 7600 and laboratory inspection processes. Other 97232, (503) 413–5295/(800) 950– Tyrone Ave., Van Nuys, CA 91405, Canadian laboratories wishing to be 5295 (818) 989–2520/(800) 877–2520, considered for the NLCP may apply directly Minneapolis Veterans Affairs Medical to the NLCP contractor just as U.S. (Formerly: SmithKline Beecham laboratories do. Center, Forensic Toxicology Clinical Laboratories) Laboratory, 1 Veterans Drive, Scientific Testing Laboratories, Inc., 450 Upon finding a Canadian laboratory to Minneapolis, Minnesota 55417, (612) Southlake Blvd., Richmond, VA be qualified, the DHHS will recommend 725–2088 23236, (804) 378–9130 that DOT certify the laboratory (Federal National Toxicology Laboratories, Inc., S.E.D. Medical Laboratories, 5601 Office Register, 16 July 1996) as meeting the 1100 California Ave., Bakersfield, CA Blvd., Albuquerque, NM 87109, (505) minimum standards of the ‘‘Mandatory 93304, (661) 322–4250/(800) 350– 727–6300/(800) 999–5227 Guidelines for Workplace Drug Testing’’ 3515 South Bend Medical Foundation, Inc., (59 FR, 9 June 1994, Pages 29908– Northwest Drug Testing, a division of 530 N. Lafayette Blvd., South Bend, 29931). After receiving the DOT NWT Inc., 1141 E. 3900 South, Salt IN 46601, (574) 234–4176x276 certification, the laboratory will be Lake City, UT 84124, (801) 293–2300/ Southwest Laboratories, 2727 W. included in the monthly list of DHHS (800) 322–3361, (Formerly: NWT Drug Baseline Rd., Tempe, AZ 85283, (602) certified laboratories and participate in Testing, NorthWest Toxicology, Inc.) 438–8507/(800) 279–0027 the NLCP certification maintenance One Source Toxicology Laboratory, Inc., Sparrow Health System, Toxicology program. 1705 Center Street, Deer Park, TX Testing Center, St. Lawrence Campus, Richard Kopanda, 77536, (713) 920–2559, (Formerly: 1210 W. Saginaw, Lansing, MI 48915, University of Texas Medical Branch, (517) 377–0520, (Formerly: St. Executive Officer, SAMHSA. Clinical Chemistry Division; UTMB Lawrence Hospital & Healthcare [FR Doc. 03–5391 Filed 3–5–03; 8:45 am] Pathology-Toxicology Laboratory) System) BILLING CODE 4160–20–U Oregon Medical Laboratories, PO Box St. Anthony Hospital Toxicology 972, 722 East 11th Ave., Eugene, OR Laboratory, 1000 N. Lee St., 97440–0972, (541) 687–2134 Oklahoma City, OK 73101, (405) 272– DEPARTMENT OF HEALTH AND Pacific Toxicology Laboratories, 6160 7052 HUMAN SERVICES Variel Ave., Woodland Hills, CA Sure-Test Laboratories, Inc., 2900 Broad Avenue, Memphis, Tennessee 38112, Substance Abuse and Mental Health 91367, (818) 598–3110/(800) 328– Services Administration 6942, (Formerly: Centinela Hospital (901) 474–6028 Toxicology & Drug Monitoring Airport Toxicology Laboratory Center for Substance Abuse Laboratory, University of Missouri Pathology Associates Medical Prevention; Notice of Meeting Laboratories, 110 West Cliff Drive, Hospital & Clinics, 2703 Clark Lane, Spokane, WA 99204, (509) 755–8991/ Suite B, Lower Level, Columbia, MO Pursuant to Public Law 92–463, (800) 541–7891x8991 65202, (573) 882–1273 notice is hereby given of the meeting of PharmChem Laboratories, Inc., 4600 N. Toxicology Testing Service, Inc., 5426 the Center for Substance Abuse Beach, Haltom City, TX 76137, (817) N.W. 79th Ave., Miami, FL 33166, Prevention (CSAP) Drug Testing 605–5300, (Formerly: PharmChem (305) 593–2260 Advisory Board to be held in March Laboratories, Inc., Texas Division; U.S. Army Forensic Toxicology Drug 2003. Harris Medical Laboratory) Testing Laboratory, 2490 Wilson A portion of the meeting will be open Physicians Reference Laboratory, 7800 Street, Fort George G. Meade, MD and will include a Department of Health West 110th St., Overland Park, KS 20755–5235, (301) 677–3714 and Human Services drug testing 66210, (913) 339–0372/(800) 821– The following laboratory will be program update, a Department of 3627 voluntarily withdrawing from the Transportation drug testing program Quest Diagnostics Incorporated, 3175 National Laboratory Certification update, a discussion of performance Presidential Dr., Atlanta, GA 30340, Program (NLCP) effective February 28, testing sample results for alternative (770) 452–1590/(800) 729–6432, 2003: specimens, and a discussion of the

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proposed guidelines for alternative DEPARTMENT OF HOUSING AND proposed collection of information to: specimen testing and on-site testing. If URBAN DEVELOPMENT (1) Evaluate whether the proposed anyone needs special accommodations collection of information is necessary [Docket No. FR–4529–N–04] for persons with disabilities, please for the proper performance of the notify the Contact listed below. Notice of Proposed Information functions of the agency, including The meeting will include an Collection: Comment Request; Notice whether the information will have evaluation of sensitive National of Application for Designation as a practical utility; (2) evaluate the Laboratory Certification Program (NLCP) Single Family Foreclosure accuracy of the agency’s estimate of the internal operating procedures and Commissioner burden of the proposed collection of program development issues. Therefore, information; (3) enhance the quality, a portion of the meeting will be closed AGENCY: Office of the General Counsel, utility, and clarity of the information to to the public as determined by the HUD. be collected; and (4) minimize the SAMHSA Administrator in accordance ACTION: Notice. burden of the collection of information with title 5 U.S.C. 552b(c)(9)(B) and 5 on those who are to respond; including SUMMARY: The proposed information U.S.C. App. 2, section 10(d). through the use of appropriate collection requirement described below A roster of the board members may be automated collection techniques or will be submitted to the Office of obtained from: Mrs. Giselle Hersh, other forms of information technology, Management and Budget (OMB) for Division of Workplace Programs, 5600 e.g., permitting electronic submission of review, as required by the Paperwork Fishers Lane, Rockwall II, Suite 815, responses. Rockville, MD 20857, Telephone: (301) Reduction Act. The Department is This notice also lists the following 443–6014. The transcript for the open soliciting public comments on the information: session will be available on the subject proposal. following Web site: http:// DATES: Comments Due Date: May 5, Title of Proposal: Notice of workplace.samhsa.gov. Additional 2003. Application for Designation As a Single information for this meeting may be ADDRESSES: Interested persons are Family Foreclosure Commissioner (SF obtained by contacting the individual invited to submit comments regarding Mortgage Foreclosure Act of 1994). listed below. this proposal. Comments should refer to OMB Control Number, if applicable: Committee Name: Center for the proposal by name and/or OMB 2510–0012. Substance Abuse Prevention, Drug Control Number and should be sent to: Description of the need for the Testing Advisory Board. Patricia A. Wash, Reports Liaison information and proposed use: Under Meeting Date: March 11, 2003; 8:30 Officer, Department of Housing and the Single Family Mortgage Foreclosure a.m.–4:30 p.m., March 12, 2003; 8:30 Urban Development, 451 7th Street, Act of 1994, HUD may exercise a a.m.–noon. SW., Room 10245, Washington, DC nonjudicial Power of Sale of single Place: Residence Inn by Marriott, 20410. family HUD-held mortgages and may 7335 Wisconsin Avenue, Bethesda, FOR FURTHER INFORMATION CONTACT: appoint Foreclosure Commissioners to Maryland 20814. Bruce Albright, Assistant General do this. HUD needs the notice and Type: Open: March 11, 2003; 8:30 Counsel, Single Family Mortgage resulting applications for compliance a.m.–noon. Division, Office of General Counsel, with the Act’s requirements that Closed: March 11, 2003; noon–4:30 Department of Housing and Urban commissioners be qualified. Most p.m. Development, 451 7th Street, SW., respondents will be attorneys, but Closed: March 12, 2003; 8:30 a.m.– Room 9240, Washington, DC 20410 anyone may apply. noon. telephone (202 708–0080) (this is not a Agency form numbers, if applicable: Contact: Donna M. Bush, Ph.D., toll-free number). Executive Secretary, telephone: (301) None. SUPPLEMENTARY INFORMATION: 443–6014, and FAX: (301) 443–3031. The Department is submitting the proposed Members of affected public: Business Dated: February 26, 2003. information collection to OMB for or other for-profit and individuals or Toian Vaughn, review, as required by the Paperwork households. Committee Management Officer, Substance Reduction Act of 1995 (44 U.S.C. Estimation of the total numbers of Abuse and Mental Health Services chapter 35, as amended). hours needed to prepare the information Administration. This notice is soliciting comments collection including number of [FR Doc. 03–5201 Filed 3–5–03; 8:45 am] from members of the public and respondents, frequency of response, and BILLING CODE 4162–20–P affecting agencies concerning the hours of response:

Number of respondents Frequency of response Hours per response Total burden hours

30 1 .5 15

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Status of the proposed information this proposal. Comments should refer to affected by the proposal; (7) how collection: Reinstatement of collection. the proposal by name and/or OMB frequently information submissions will Authority: The Paperwork Reduction Act approval number (2502–0550) and be required; (8) an estimate of the total of 1995, 44 U.S.C. chapter 35, as amended. should be sent to: Lauren Wittenberg, number of hours needed to prepare the OMB Desk Officer, Office of information submission including Dated: February 28, 2003. Management and Budget, Room 10235, number of respondents, frequency of Camille Acevedo, New Executive Office Building, response, and hours of response; (9) Associate General Counsel. Washington, DC 20503; Fax number whether the proposal is new, an [FR Doc. 03–5255 Filed 3–5–03; 8:45 am] (202) 395–6974; E-mail extension, reinstatement, or revision of BILLING CODE 4210–67–P [email protected]. an information collection requirement; FOR FURTHER INFORMATION CONTACT: and (10) the name and telephone number of an agency official familiar DEPARTMENT OF HOUSING AND Wayne Eddins, Reports Management with the proposal and of the OMB Desk URBAN DEVELOPMENT Officer, AYO, Department of Housing and Urban Development, 451 Seventh Officer for the Department. [Docket No. FR–4815–N–11] Street, Southwest, Washington, DC This Notice also lists the following information: Notice of Submission of Proposed 20410; e-mail l Information Collection to OMB: Wayne [email protected]; telephone Title of Proposal: Inventory of Inventory of Housing Units Designated (202) 708–2374. This is not a toll-free Housing Units Designated for the for the Elderly/Persons With number. Copies of the proposed forms Elderly/Persons with Disabilities. Disabilities and other available documents OMB Approval Number: 2502–0550. submitted to OMB may be obtained Form Numbers: HUD–90059. AGENCY: Office of the Chief Information from Mr. Eddins. Officer, HUD. SUPPLEMENTARY INFORMATION: The Description of the Need for the ACTION: Notice. Department has submitted the proposal Information and Its Proposed Use: for the collection of information, as Owners of federally assisted multifamily SUMMARY: The proposed information described below, to OMB for review, as housing provide data with respect to the collection requirement described below required by the Paperwork Reduction number of apartments in buildings has been submitted to the Office of Act (44 U.S.C. Chapter 35). The Notice designated for occupancy only by Management and Budget (OMB) for lists the following information: (1) The elderly families, disabled families and review, as required by the Paperwork title of the information collection apartments with special features Reduction Act. The Department is proposal; (2) the office of the agency to designed to accommodate disabled soliciting public comments on the collect the information; (3) the OMB persons. HUD will publish an annual subject proposal. approval number, if applicable; (4) the inventory of this information. DATES: Comments Due Date: April 7, description of the need for the Respondents: Individuals or 2003. information and its proposed use; (5) households, business or other for-profit. ADDRESSES: Interested persons are the agency form number, if applicable; Frequency of Submission: On invited to submit comments regarding (6) what members of the public will be occasion.

Number of Annual × Hours per Burden respondents responses response = hours

Reporting burden ...... 30,000 1 0.5 15,000

Total Estimated Burden Hours: ACTION: Notice of availability of reports. economic, energy and environmental 15,000. benefits by promoting the use of Status: Extension of a currently SUMMARY: Through this notice, HUD is alternative fuels. A major goal of the Act approved collection. making available on its website, copies is to have the federal government of HUD’s Alternative Fuel Vehicles Authority: Section 3507 of the Paperwork exercise leadership in the use of reports for Fiscal Years 1999, 2000, and Reduction Act of 1995, 44 U.S.C. 35, as alternative fuel vehicles. To that end, 2001, that were prepared in accordance amended. the Act established alternative fuel with the Energy Policy Act of 1992. Dated: February 27, 2003. vehicle purchasing requirements for the FOR FURTHER INFORMATION CONTACT: Wayne Eddins, federal fleets of government agencies, Robert E. Byrd, Jr., Director, Facilities Departmental Reports Management Officer, and requires federal agencies to report Management Division, Office of Office of the Chief Information Officer. on their compliance with the Administration, Department of Housing [FR Doc. 03–5297 Filed 3–5–03; 8:45 am] and Urban Development, 451 Seventh requirements of the Act. A copy of BILLING CODE 4210–72–M Street, SW., Washington, DC 20410, at HUD’s Alternative Fuel Vehicle reports (202) 708–1955. (This is not a toll-free can be obtained via the World Wide number.) Persons with hearing or Web at http://www.hud.gov/offices/ DEPARTMENT OF HOUSING AND adm/reports/admreports.cfm. URBAN DEVELOPMENT speech impairments may access these numbers via TTY by calling the Federal Dated: January 31, 2003. [Docket No. FR–4826–N–01] Information Relay Service at (800) 877– Vickers B. Meadows, 8339. (This is a toll-free number.) Notice of Availability of Alternative Assistant Secretary for Administration. SUPPLEMENTARY INFORMATION: Fuel Vehicle Reports The [FR Doc. 03–5296 Filed 3–5–03; 8:45 am] Energy Policy Act (42 U.S.C. 13201 et BILLING CODE 4210–01–P AGENCY: Office of the Assistant seq.) (the Act) establishes a Secretary for Administration, HUD. comprehensive plan to achieve

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DEPARTMENT OF THE INTERIOR Sec. 8: N1⁄2NE1⁄4, SE1⁄4NE1⁄4, NW1⁄4, INTERNATIONAL TRADE N1⁄2SW1⁄4 COMMISSION Bureau of Land Management T. 144 N., R 89 W., 5th P.M. [Investigation No. 337–TA–489] Coteau Coal Lease Application Sec. 12: E1⁄2 Certain Sildenafil or Any AGENCY: Bureau of Land Management, T. 145 N., R. 88 W., 5th P.M. Pharmaceutically Acceptable Salt Interior. Sec. 4: Lots 1, 2, 3, 4, S1⁄2N1⁄2, SE1⁄4, Thereof, Such as Sildenafil Citrate, and ACTION: Notice of intent to prepare an S1⁄2SW1⁄4 Products Containing Same; Notice of environmental impact statement for coal Sec. 10: N1⁄2 Investigation lease application and notice of scoping. Sec. 14: All Sec. 22: All AGENCY: U.S. International Trade SUMMARY: The Coteau Properties Sec. 26: N1⁄2NE1⁄4, SW1⁄4NE1⁄4, Commission. Company applied for a lease of Federal NW1⁄4SE1⁄4,W1⁄2 ACTION: Institution of investigation coal reserves at the Freedom Mine, Sec. 28: E1⁄2NE1⁄4, SW1⁄4NE1⁄4, SE1⁄4NW1⁄4, pursuant to 19 U.S.C. 1337. Mercer County, North Dakota. The S1⁄2 Bureau of Land Management (BLM) will Sec. 34: N1⁄2N1⁄2, SE1⁄4NE1⁄4, E1⁄2SE1⁄4, SUMMARY: Notice is hereby given that a 1 1 1 analyze the proposed action in SW ⁄4SE ⁄4, SW ⁄4. complaint was filed with the U.S. accordance with the National The tracts include an estimated 90 million International Trade Commission on Environmental Policy Act (NEPA). At tons of recoverable coal. January 29, 2003 under section 337 of least two alternatives will be the Tariff Act of 1930, as amended, 19 The Office of Surface Mining considered: (a) A no-action alternative U.S.C. 1337, on behalf of Pfizer, Inc. of Reclamation and Enforcement (OSM) in which federal coal reserves would New York, New York. A supplement to will be a cooperating agency in the not be available for lease, and (b) an the complaint was filed on February 27, preparation of the EIS. If Federal lands alternative in which all or portions of 2003. The complaint, as supplemented, are leased, they must be incorporated the federal coal reserves would be made alleges violations of section 337 in the into the existing mine plan before available for lease. importation into the United States, the Federal coal reserves can be mined. After an initial review, BLM has sale for importation, and the sale within OSM is responsible for recommending determined that an environmental the United States after importation of approval, approval with conditions, or impact statement (EIS) will be prepared certain sildenafil or any disapproval of the revised mine plan to to disclose effects that may result from pharmaceutically acceptable salt the Secretary of the Interior. strip mining. A public scoping period thereof, such as sildenafil citrate, and will be held to allow interested parties The primary issue raised during our products containing same by reason of to submit comments or information initial review of the application infringement of claims 1–5 of U.S. relevant to preparation of the EIS. involves American Indian Traditional/ Patent No. 5,250,534. The complaint further alleges that there exists an DATES: Cultural features. Mining will result in Publication of this notice will industry in the United States as required initiate the public scoping comment impacts to cultural resources. Based on cultural resource inventories, 200 by subsection (a)(2) of section 337. process, which will end after 30 days. The complainant requests that the Comments on issues may be submitted archeological sites with 1,700 stone features have been identified. Forty of Commission institute an investigation in writing to BLM at the address listed and, after the investigation, issue a below. these sites have been determined eligible for listing in the National permanent general exclusion order and Public Participation: A goal of public permanent cease and desist orders. involvement is to identify issues Register of Historic Places. Native pertinent to the proposal. The BLM American tribes have voiced concerns ADDRESSES: The complaint, except for invites written comments and about the cumulative effects of mining any confidential information contained suggestions on this action, particularly on these cultural resources. therein, is available for inspection in terms of issues and development of Comments, including names and during official business hours (8:45 a.m. alternatives. People may visit with BLM street addresses of respondents, will be to 5:15 p.m.) in the Office of the officials at any time during the analysis. available for public inspection at the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room ADDRESSES: BLM North Dakota Field Office. Please send comments, 112, Washington, DC 20436, telephone concerns or questions to Field Office Individual respondents may request confidentiality. If you wish to withhold 202–205–2000. Hearing-impaired Manager, North Dakota Field Office, individuals are advised that information Bureau of Land Management, 2933 3rd your name or address from public review or from disclosure under the on this matter can be obtained by Avenue West, Dickinson, ND 58601. For contacting the Commission’s TDD further information and/or to have your Freedom of Information Act, you must state this at the beginning of your terminal on 202–205–1810. Persons name added to our mailing list, please with mobility impairments who will write to the address above, or contact written comment. All submissions from organizations or businesses, and from need special assistance in gaining access Lee Jefferis (701–227–7713), or Mary to the Commission should contact the Ramsey (701–227–7706) by telephone. individuals identifying themselves as representatives or officials of Office of the Secretary at 202–205–2000. SUPPLEMENTARY INFORMATION: On organizations or businesses, will be General information concerning the January 18, 2002, The Coteau Properties made available for public inspection in Commission may also be obtained by Company filed an application with BLM their entirety. accessing its internet server at http:// to lease 5, 571 acres of Federal coal at www.usitc.gov. The public record for the following locations: Dated: February 28, 2003. this investigation may be viewed on the Douglas Burger, T. 144 N., R. 88 W., 5th P.M. Commission’s electronic docket (EDIS) Field Manager. at http://edis.usitc.gov. Sec. 2: Lots 3, 4, S1⁄2NW1⁄4 Sec. 4: Lots 1, 2, S1⁄2NE1⁄4, S1⁄2 [FR Doc. 03–5251 Filed 3–5–03; 8:45 am] FOR FURTHER INFORMATION CONTACT: Sec. 6: All BILLING CODE 4310–$$–P Thomas S. Fusco, Esq., Office of Unfair

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Import Investigations, U.S. International Lianyungang Foreign Trade Corp., DEPARTMENT OF JUSTICE Trade Commission, telephone 202–205– Foreign Trade Bldg., No. 9 East Hailan 2571. Rd., Xinpu, Lianyungang, Jiangsu, Drug Enforcement Administration Authority: The authority for institution of China [Docket No. 00–12] this investigation is contained in section 337 Sino Health Care Company of Sichuan, of the Tariff Act of 1930, as amended, and 2–5# 10th Building, Qingyang Dong 1 Jeffrey Martin Ford, D.D.S. Grant of in section 210.10 of the Commission’s Rules lu., Chengdu, Sichuan 610072, China of Practice and Procedure, 19 CFR 210.10 Restricted Registration China Jingsu International, 37 Hua Qiao (2002). On October 29, 1999, the Deputy Scope of Investigation: Having Road, Nanjing 210029, China Assistant Administrator, Office of considered the complaint, the U.S. Yiho Export & Import Co. Ltd., Nanjing Diversion Control, Drug Enforcement International Trade Commission, on Office, Rm. 302, No. 43–1 Qingliang Administration (DEA), issued an Order February 27, 2003, ordered that— Xincum, Nanjing, 210029, China to Show Cause to Jeffrey Martin Ford, (1) Pursuant to subsection (b) of D.D.S. (Respondent), proposing to deny section 337 of the Tariff Act of 1930, as EBC Corporation, 701 Renner Road, his application for a DEA Certificate of amended, an investigation be instituted Wilmington, DE 19810 Registration pursuant to 21 U.S.C. 823(f) to determine whether there is a (c) Thomas S. Fusco, Office of Unfair and 824(a). violation of subsection (a)(1)(B) of Import Investigations, U.S. International By letter dated November 22, 1999, section 337 in the importation into the Trade Commission, 500 E Street, SW., the Respondent requested a hearing on United States, the sale for importation, Room 401–E, Washington, DC 20436, the issues raised by the Order to Show or the sale within the United States after who shall be the Commission Cause. Following prehearing importation of certain sildenafil or any investigative attorney, party to this procedures, a hearing was held on June pharmaceutically acceptable salt investigation; and 15, 2000, in Boston, Massachusetts. At thereof, such as sildenafil citrate, or the hearing, the Government called two products containing same by reason of (3) For the investigation so instituted, witnesses to testify and the Respondent infringement of claim 1, 2, 3, 4, or 5 of the Honorable Charles E. Bullock is testified on his behalf. Both parties also U.S. Patent No. 5,250,534, and whether designated as the presiding introduced documentary evidence. After an industry in the United States exists administrative law judge. the hearing, both parties submitted as required by subsection (a)(2) of Responses to the complaint and the proposed findings of fact, conclusions of section 337. notice of investigation must be (2) For the purpose of the submitted by the named respondents in law, and argument. On February 6, investigation so instituted, the following accordance with section 210.13 of the 2001, Administrative Law Judge Mary are hereby named as parties upon which Commission’s Rules of Practice and Ellen Bittner (Judge Bittner) issued her this notice of investigation shall be Procedure, 19 CFR 210.13. Pursuant to Opinion and Recommended Ruling, served: 19 CFR 201.16(d) and 210.13(a), such Findings of Fact, Conclusions of Law (a) The complainant is: Pfizer, Inc., responses will be considered by the and Decision, recommending that 235 East 42nd Street, New York, New Commission if received no later than 20 Respondent’s application for York 10017. days after the date of service by the registration be granted subject to various (b) The respondents are the following Commission of the complaint and notice conditions. Neither party filed companies upon which the complaint is of investigation. Extensions of time for exceptions to Judge Bittner’s opinion, to be served: submitting responses to the complaint and on March 6, 2001, Judge Bittner Planet Pharmacy, 13.5 Miles Northern will not be granted unless good cause transmitted the record of these Highway, Burrell Boom Cutoff, therefor is shown. proceedings to the then-Deputy Ladyville, Belize Administrator. Failure of a respondent to file a timely The Deputy Administrator has LTMC, Ltd., Tumkin 9, Tel Aviv, Israel response to each allegation in the 99999 considered the record in its entirety, complaint and in this notice may be and pursuant to 21 CFR 1316.67, hereby Investment and Future Development deemed to constitute a waiver of the Corp. SA, Calle Las Acacias, Regina, issues his final order based upon right to appear and contest the findings of fact and conclusions of law Diriamba, Nicaragua allegations of the complaint and this Aleppo Pharmaceutical Industries, as hereinafter set forth. The Deputy notice, and to authorize the Administrator adopts in full the Baron Street, P.O. Box 517, Aleppo, administrative law judge and the Syria recommended rulings of fact, Commission, without further notice to conclusions of law and decision of the Biovea, 56 Gloucester Road, Suite 524, the respondent, to find the facts to be as Kensington, London SW7 4UB, Administrative Law Judge. His adoption alleged in the complaint and this notice is in no manner diminished by any England and to enter both an initial #1 Aabaaca Viagra LLC, 350 South recitation of facts, issues, or conclusions determination and a final determination Center, Reno, NV 99502 herein, or of any failure to mention a containing such findings, and may Ezee Soulnature Healthcare Pvt. Ltd., J– matter of fact or law. result in the issuance of a limited 195 Saket, New Delhi 110017, India The Deputy Administrator finds that Zhejiang Medicines & Health Products exclusion order or a cease and desist the Respondent graduated from Import & Export Co. Ltd., ZMC order or both directed against such dentistry school in 1972, and following Building, 101–2 N. Zhongsan Road, respondent. 24-month residency in orthodontics at Hangzhou, 310003, China Issued: March 3, 2003. Case Western Reserve University School Jiangxi Jilin Chemical Corp. Ltd., Jingxi By order of the Commission. of Dentistry, he established an Dingfen Street 346 fl., Nanchang, orthodontic practice in Boston Marilyn R. Abbott, Fujian 2564892, China Massachusetts in 1974. In 1983, the Tianjin Shuaike Chemical Co. Ltd., PO Secretary to the Commission. Respondent relocated to Phoenix, Box 4618, Yangliuqing, Xiqing [FR Doc. 03–5332 Filed 3–5–03; 8:45 am] Arizona, where he became licensed to District, Tianjin 300380, China BILLING CODE 7020–02–P practice dentistry, and then established

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a solo practice in Tempe, Arizona the for reinstatement of his dental license requested permission to re-enter his following year. was denied. home. When the Respondent was On May 13, 1986, an Arizona State On March 16, 1987, the Arizona State accompanied into his home, arresting trooper stopped the Respondent’s Board of Dental Examiners (Arizona officers observed $13,000 in cash in the vehicle when he was apparently Dental Board) summarily suspended the Respondent’s bedroom, and a marijuana observed operating an automobile in an Respondent’s dental license in that growing operation. The Respondent also erratic fashion.Upon a search of the state, based upon his criminal replied in the negative when asked vehicle, the state trooper discovered conviction. On that same day, the whether there were any weapons in his what laboratory tests later revealed as Respondent provided a urine sample to home. 1.6 grains of cocaine and various the Arizona Board, which tested During the subsequent execution of a marijuana cigarettes. The Respondent positive for cocaine. The Respondent search warrant at the Respondent’s was arrested and charged with did not deny the use of cocaine, and home, U.S. Postal Inspectors located possession of a narcotic drug. On cross- subsequently entered the St. Luke’s growing marijuana plants, packaged examination during the hearing, the Substance Abuse Program. On June 17, marijuana, items used to cultivate Respondent testified that the Arizona 1987, the Arizona Dental Board revoked marijuana such as an electronic scale trooper was not justified in making the the Respondent’s dental license on and a timer, and several postal receipts initial traffic stop of his vehicle, and grounds that he continued to practice for Express Mail packages from the made up a reason for stopping him. dentistry notwithstanding the Respondent to Arizona. The search also On January 23, 1987, the Respondent suspension of his license and had tested revealed a loaded .357 Magnum pled guilty to solicitation to possess a positive for cocaine on March 16, 1987. handgun and two loaded speed loaders narcotic drug, a class 6 undesignated On September 23, 1987, the in a bedroom closet. felony offense under Arizona law. Respondent was notified by the DEA The Respondent testified during the During the administrative hearing, the Phoenix office that his DEA Certificate hearing that he received four packages Respondent acknowledged that the of Registration was subject to revocation of cocaine through the mail from Mr. cocaine was his, and that the drug was because of the revocation of his state Shatz, a long time acquaintance. The for his personal use. The Respondent dental license, and because he lacked Respondent testified that Mr. Shatz further testified that he regretted the state authorization to handle controlled acted as a broker, and that other money incident, and admitted that he substances. As a result, on February 10, orders sent by the Respondent to Mr. squandered his opportunities in Arizona 1988, the Respondent surrendered his Shatz were loans to allow the latter to ‘‘due to [his] own stupidity with drugs.’’ previous DEA Certificate of Registration. purchase cocaine for himself. The The Government introduced a copy of In or around January 1990, the Respondent also testified that he ended a Presentence Investigation Report Respondent relocated to Fall River, his relationship with Mr. Shatz after his (PSIR). The PSIR was compiled in Massachusetts where he worked 1991 arrest, and has not spoken to Mr. conjunction with the Arizona criminal temporarily in a dental clinic, before Shatz since the end of that year. The proceeding, to assist the state court purchasing a dental practice in Respondent further testified that while judge in sentencing the Respondent Springfield and renting a house in in Arizona in the summer of 1983, he following his conviction for possession South Hadley in September of that year. purchased as part of a self-defense of a narcotic drug. The PSIR revealed At that time, the Respondent resumed course the .357 Magnum handgun that that the Respondent had used his use of cocaine, and in March 1991, was subsequently found during the marijuana, LSD, mescaline and cocaine he resumed using marijuana. search of his home in Massachusetts. prior to the arrest that led to his In February 1991, the United States Nevertheless, the record in this conviction. The Respondent was also Postal Service became aware that the proceeding demonstrated, and the quoted in the PSIR as commenting that Respondent had purchased $18,000 in Deputy Administrator finds, that the his sentence should be a ‘‘slap on the money orders, and sent them via Respondent did not comply with the wrist’’ and that he should be sent back Express Mail to an individual by the requirement under Massachusetts’s law to work. name of Marty Shatz (Mr. Shatz) in that a firearm be registered with the At the hearing, the Respondent Scottsdale, Arizona. On March 1, 1991, state. testified that he did not use cocaine an Express Mail package weighing 5 On February 13, 1992, the Respondent until after his May 1986 arrest in ounces was mailed from Los Angeles, was indicted in the United States Arizona. However, when confronted California to the Respondent at his District Court for the District of with his PSIR statement about his past residence in South Hadley. The U.S. Massachusetts on four felony counts: drug use, he admitted that he used Postal Service believed that the package Conspiracy to possess with intent to cocaine three or four times, but had not contained controlled substances, and on distribute cocaine, in violation of 21 developed a ‘‘taste’’ for it until after his July 24, 1991, requested and obtained a U.S.C. 846; possession with intent to May 1986 arrest. search warrant to inspect the contents of distribute cocaine and possession with On February 19, 1987, the Respondent the package. The package was later intent to distribute marijuana, in was sentenced to three years probation opened and its contents tested positive violation of 21 U.S.C. 841(a)(1); and use and 100 hours of community service, for methamphetamine. The package was of the mail to facilitate a narcotics however that sentence was modified in then returned to the mail stream, and transaction, aiding and abetting, in June 1987 to allow the Respondent to the post office notified the Respondent violation of 21 U.S.C. 843 and 18 U.S.C. pay a fine. The Respondent that it has arrived. The Respondent, 2. subsequently petitioned the court to under the surveillance of law Following a jury trial, the Respondent modify the terms and conditions of his enforcement officers, was observed was found guilty on all four counts. On probation, and his probation was picking up the package and returning to June 14, 1993, the Respondent was terminated. The court also designated this home with it. sentenced to 51 months imprisonment the charged offense as a misdemeanor. The Respondent was subsequently and three years probation following his The Respondent testified during the arrested by United States Postal release. On November 30, 1995, the hearing, however, that following his Inspectors outside of his home. At the sentence was reduced to a term of 39 release from probation, his application time of his arrest, the Respondent months due to retroactive changes to the

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sentencing guidelines for the offenses dental schools in Boston, and pass the application for a DEA Certificate of which the Respondent was convicted. Northeast Regional Dental Examination. Registration if he determines that The Respondent subsequently The Respondent satisfied these granting the registration would be appealed his convictions to the United requirements. As a result, the inconsistent with the public interest. States Court of Appeals for the First Massachusetts Dental Board reinstated Section 823(f) requires that the Circuit. The Respondent alleged in his the Respondent’s dental license on a following factors be considered in appeal that the district court erred in probationary basis pursuant to a determining the public interest: denying a motion to suppress evidence December 3, 1997, consent agreement. (1) The recommendation of the seized during a warrantless search, that The consent agreement required that the appropriate state licensing board or the district court erred in admitting into Respondent attend Massachusetts professional disciplinary authority. evidence a book entitled The Secrets of Dental Society Committee on Drug and (2) The applicant’s experience in Methamphetamine Manufacture, and Alcohol Dependency (C–DAD) meetings dispensing or conducting research with that there was insufficient evidence to twice a month, undergo random respect to controlled substances. support the conviction of possession of urinalysis, and refrain from the use of (3) The applicant’s conviction record cocaine with intent to distribute since alcohol or drugs of any kind, except under Federal or State laws relating to the drug was for his personal use. The those prescribed for a legitimate medical the manufacture, distribution, or Court of Appeals rejected each of the or dental purpose. The Respondent dispensing of controlled substances. above arguments, and the Respondent’s attended the required C–DAD meetings, (4) Compliance with applicable State, convictions were affirmed. and also attended on a monthly basis Federal, or local laws relating to On July 17, 1992, the Respondent the non-mandatory meetings of C–DAD controlled substances. entered into a consent agreement with since the summer of 1999. On (5) Such other conduct which may the Commonwealth of Massachusetts, November 12, 1998, the Respondent was threaten the public health or safety. Board of Registration in Dentistry issued a Massachusetts Controlled These factors are to be considered in (Massachusetts Dental Board), which Substance Registration, which was the disjunctive; the Deputy placed his state dental license on current as of the date of the Administrator may rely on any one or a probation for five years. The administrative hearing. combination of factors and may give Respondent however voluntarily In October 1999, the Respondent each factor the weight he deems surrendered his dental license on successfully completed the board- appropriate in determining whether a January 14, 1993, while he was imposed probationary period. A registration should be revoked or an incarcerated. Based on the surrender of December 8, 1999, letter from the application for registration denied. See his dental license, the Massachusetts chairman of the Massachusetts Dental Henry T. Schwartz, Jr., M.D., 54 FR Department of Public Health, Division Board, which was admitted as evidence 16422 (1989). of Food and Drug revoked the during the hearing, revealed that the As to factor one, the Deputy Respondent’s state controlled substance Respondent remained in full Administrator finds that the registration on April 26, 1993. compliance with the terms of the Massachusetts Dental Board has fully The record before the Deputy consent agreement. In a separate letter reinstated the Respondent’s dental Administrator further reveals that dated March 22, 1999, the Dental Board license with no restrictions, and the shortly after his July 24, 1991, arrest, the chairman advised that no complaints Commonwealth of Massachusetts has Respondent began attending the had ever been filed against the also issued Respondent a controlled Gosnold Drug Rehabilitation Treatment Respondent regarding dental treatment substance registration. As noted by Center in Falmouth, Massachusetts, or his relationship with his patients. Judge Bittner, the chairman of the where he spent approximately 300 The letter further revealed that the Massachusetts Dental Board has advised hours in group and individuals therapy Respondent had passed the Northeast that that body supports the and counseling over a two year period. Regional Dental Exam with an Respondent’s application for a DEA In addition, during approximately nine outstanding score and had served as a registration. The Deputy Administrator of the 39 months the Respondent spent mentor to young dental students who agrees with Judge Bittner’s finding that incarcerated at the Allenwood Federal were preparing for the exam. while Respondent’s licensures to Prison Camp, he participated in and The Deputy Administrator also finds practice dentistry and to handle graduated from the residential treatment that in January 1998, the Respondent controlled substances in Massachusetts program there. The Respondent testified began part-time work in an orthodontic are not determinative in this that while at the Allenwood facility, he practice in Marshfield, Massachusetts, proceeding, the positive as well as the other inmates were where he assumed the responsibility for recommendation of the Massachusetts exposed to comprehensive ‘‘twenty-four treating approximately 55 orthodontic Dental Board, and the reinstatement of hour a day’’ drug treatment program. patients. The Respondent was employed his state controlled substance The Respondent then spent time at a in this capacity as of the hearing date. registration weigh in favor of granting halfway house in Boston, and in May From November 1998 to March 2000, the Respondent’s application. 1996, he began a three-year period of the Respondent was employed full-time As to factors two and four, probation. The Respondent testified that at the Health First Clinic in Fall River, Respondent’s experience in handling from the date of his arrest in July 1991 Massachusetts, where his primary controlled substances and his until his release from probation in May responsibilities included general compliance with applicable controlled 1999, he was randomly drug tested dentistry, oral surgery and urgent care. substance laws, are clearly relevant in ‘‘close to a hundred times’’ and never The Respondent presented written determining the public interest in this tested positive for drug use. testimony from several of his colleagues matter. While there is no contention that In 1996, the Respondent requested the who attested to his high degree of Respondent has ever inappropriately reinstatement of his Massachusetts competence and care in the field of prescribed, administered, or otherwise dental license. In response to his dentistry, as well as a favorable letter dispensed controlled substances to any request, the Massachusetts Dental Board from one of his patients. patient, Respondent admitted that he required that the Respondent attend Pursuant to 21 U.S.C. 823(f), the purchased and/or used cocaine, remedial education courses at one of the Deputy Administrator may deny an marijuana, LSD and mescaline. The

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Respondent was also arrested while in The Deputy Administrator is Respondent was issued a Massachusetts possession of marijuana in May 1986 concerned with the Respondent’s fairly Controlled Substance Registration, and on June 17, 1987, he tested positive extensive history of substance abuse. As which was current as of the date of the for cocaine pursuant to an Arizona noted above, the Respondent has used administrative hearing; and, the Dental Board Drug test. In addition, the on various occasions, marijuana, LSD, Respondent presented letters of support Respondent testified that he procured a mescaline and cocaine. He not only from practitioners, colleagues and a small amount of cocaine for his wife used drugs in an illicit fashion, but also patient attesting to his professionalism, while living in Arizona, and admitted to shared them with friends and at least and recommending that his DEA sharing home grown marijuana with his one family member. application be granted. girlfriend while living in South Hadley, The Deputy Administrator also finds However, given the Deputy Massachusetts. Therefore, the disturbing the Respondent’s Administrator’s concerns about the government has established that factors maintenance of an unregistered firearm Respondent’s past mishandling of two and four should be weighed in favor in his home in violation of controlled substances, a restricted of a finding that Respondent’s Massachusetts law, his use of the United registration is warranted. This will registration would be inconsistent with States mail service to facilitate drug allow the Respondent to demonstrate the public interest. transactions, and the fact that he that he can responsibly handle As to factor three, Respondent’s provided money to Mr. Shatz so the controlled substances. Accordingly, the conviction under Federal or State laws latter could purchase cocaine. In Deputy Administrator adopts the relating to controlled substances, it is addition, the Deputy Administrator is following restrictions upon the undisputed that Respondent pled guilty perplexed by the Respondent’s apparent Respondent’s DEA registration as in 1986 to solicitation to possess a willingness to accept responsibility for recommended by Judge Bittner: narcotic drug in Arizona, and was past actions on the one hand (i.e., his 1. Respondent’s controlled substance convicted in 1993 of the felonies of statement in the PSIR that he learned handling authority shall be limited to conspiracy to possess with intent to ‘‘the biggest lesson of his life’’ following the administering of controlled distribute cocaine, possession with his 1986 conviction), and his seeming substances in his office and the writing intent to distribute cocaine and refusal to acknowledge wrong doing in of prescriptions only; marijuana, and the use of mail to other respects (i.e., asserting during the 2. Respondent shall not possess or facilitate a narcotics transaction in hearing that an Arizona law store any controlled substance in his Massachusetts. enforcement officer lied about the basis home except by prescribed pursuant to With respect to favor five, other for a traffic stop which led to the paragraph three below, and shall not conduct that may threaten the public Respondent’s arrest). dispense, other than by prescribing or health and safety; the Deputy The Deputy Administrator also shares administering, any controlled Administrator share the concern of the the concern of the Administrative Law substances from his office; government regarding the Respondent’s Judge and the government that the 3. Respondent shall not write any inconsistent and evasive testimony Respondent has apparently failed to prescription for himself, and shall not during the administrative hearing. The learn from the negative experiences obtain or possess for his use any Deputy Administrator further shares the surrounding his drug use. This apparent controlled substance except upon the concerns of Judge Bittner and the failure was reflected by the respondent’s written prescription of another licensed government regarding the Respondent’s continued use of drugs following his medical professional. In the event that apparent lack of respect for laws 1986 arrest, as well as upon his return another licensed medical professional regulating the use of controlled to Massachusetts. Therefore, the Deputy prescribes a controlled substance for substances, as reflected by his Administrator finds that the government Respondent, Respondent shall comments to a probation officer in has presented a prima facie case for the immediately notify the Special Agent in Arizona that he deserved ‘‘no more than denial of the Respondent’s application Charge of the DEA’s nearest office, or a slap on the wrist’’ and his insistent for registration. his designee; (a) that he plans to obtain that ‘‘sharing’’ controlled substances Having concluded that there is a a specified controlled substance for his does not constitute ‘‘distribution.’’ lawful basis upon which to deny the personal use, and (b) the reasons the Despite the Deputy Administrator’s Respondent’s application, the question controlled substance is being finding regarding evasive and remains as to whether the Deputy prescribed; inconsistent testimony by the Administrator should, in the exercise of 4. For at least two years from the date Respondent, and in particular his his discretion, grant or deny the of the entry of a final order in this testimony during cross-examination by application. Ray Roya, 46 FR 45842 proceeding, Respondent shall continue government counsel, in fairness to the (1981). Like Judge Bitter, the Deputy to submit to random drug testing under Respondent, several of the topics that he Administrator concludes that it would the auspices of the Massachusetts was asked about covered statements be in the public interest to deny the Dental Board, or of the appropriate state made, and events that occurred more Respondent’s pending application. dental board in another state where he than ten years prior to testimony at the The Deputy Administrator also agrees practices; he shall continue to hearing (i.e., the circumstances with Judge Bittner’s finding that the participate in Committee on Drug and involving his 1986 arrest in Arizona, Respondent is now prepared to comply Alcohol Dependency (C–DAD) meetings statements attributed to him in the 1987 with laws regulating the use of if he remains in Massachusetts; and he Presentence Investigative Report, etc.). controlled substances. The Respondent shall submit to the Special Agent in While this finding does not necessarily begin attending drug rehabilitation Charge of the DEA’s nearest office or his mitigate the Respondent’s apparent lack following his July 24, 1991, arrest, and designee every calendar quarter a log of candor, the passage of time between has not abused controlled substances listing all the controlled substances some of the events in question and the since that time, the Respondent satisfied Respondent has prescribed or Respondent’s testimony at the hearing all of the conditions for reinstatement of administered during the previous regarding these events should be given his Massachusetts dental license, quarter. some consideration when assessing the including his participation in C–DAD Accordingly, the Deputy depth and clarity of his responses. meetings; on November 12, 1998, the Administrator of the Drug Enforcement

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Administration, pursuant to the other forms of information technology, Standard Job Corps Center Request for authority vested in him by 21 U.S.C. 823 e.g., permitting electronic submission of Proposal and Related Contracting and 28 CFR 0.100(b), hereby orders that responses. Information Reporting Requirements. A the application for DEA Certificate of Agency: Mine Safety and Health copy of the proposed information Registration submitted by Jeffrey Martin Administration (MSHA). request (ICR) can be obtained by Ford, D.D.S. be, and it hereby is, Type of Review: Extension of a contacting the office listed below in the granted, subject to the above described currently approved collection. addressee section of this notice. Title: Notification of Commencement restrictions. This order is effective April DATES: Written comments must be 7, 2003. of Operations and Closing of Mines. submitted to the office listed in the OMB Number: 1219–0092. Dated: February 24, 2003. addressee section below on or before Frequency: On occasion. May 5, 2003. John B. Brown III, Type of Response: Reporting. Deputy Administrator. Affected Public: Business or other for- ADDRESSES: Renee Evans, Office of Job [FR Doc. 03–5279 Filed 3–5–03; 8:45 am] profit. Corps, 200 Constitution Avenue, Room BILLING CODE 4410–09–M Number of Respondents: 2,300. N–4464, Washington, DC 20210. E-mail Annual Responses: 2,300. address: [email protected]; Telephone Average Response Time: 3 minutes by number: (202) 693–3091 (This is not a DEPARTMENT OF LABOR telephone or 30 minutes for a written toll-free number); Fax number: (202) response. 693–2767. Office of the Secretary Total Burden Hours: 259 hours. SUPPLEMENTARY INFORMATION: I. Total Annualized Capital/Startup Background: The Job Corps is an Submission for OMB Review; Costs: $0. intensive, residential training program Comment Request Total Annual (operating/maintaining for economically challenged young systems or purchasing services): $1,445. people aged 16 to 24 who are out of February 25, 2003. Description: Under 30 CFR 56.1000 The Department of Labor (DOL) has school and out of work. Job Corps is and 57.1000, operators of metal and authorized by Title I, Subtitle C, of the submitted the following public nonmetal mines must notify the MSHA information collection request (ICR) to Workforce Investment Act (WIA) of when the operation of a mine will 1998. WIA provides that up to 20 the Office of Management and Budget commence or when a mine is closed. (OMB) for review and approval in percent of the individuals enrolled in These notifications help MSHA the Job Corps may be nonresidential accordance with the Paperwork effectively plan mine inspections. Reduction Act of 1995 (Pub. L. 104–13, participants. The program is principally 44 U.S.C. chapter 35). A copy of this Ira L. Mills, carried out through a nationwide ICR, with applicable supporting Departmental Clearance Officer. network of 118 Job Corps centers. The documentation, may be obtained by [FR Doc. 03–5272 Filed 3–5–03; 8:45 am] centers are located at facilities either calling the Department of Labor. To BILLING CODE 4510–43–M owned or leased by the Federal obtain documentation, contact Darrin Government. The Department has a King on (202) 693–4129 or e-Mail: King- direct role in the operation of Job Corps, [email protected]. DEPARTMENT OF LABOR and does not serve as a pass-through Comments should be sent to Office of agency for this program. It is the Information and Regulatory Affairs, Employment and Training Department’s responsibility to establish Attn: OMB Desk Officer for MSHA, Administration Job Corps centers and to select operators Office of Management and Budget, for them. Of the 118 current centers, 28 Proposed Collection; Comment Room 10235, Washington, DC 20503 are operated through interagency Request ((202) 395–7316), within 30 days from agreements by the Departments of Agriculture and Interior. These centers the date of this publication in the ACTION: Notice. Federal Register. are located on Federal lands controlled The OMB is particularly interested in SUMMARY: The Department of Labor, as by these two agencies. The remaining 90 comments which: part of its continuing effort to reduce centers are managed and operated by • Evaluate whether the proposed paperwork and respondent burden, large and small corporations and collection of information is necessary conducts a pre-clearance consultation nonprofit organizations selected by the for the proper performance of the program to provide the general public Department in accordance with the functions of the agency, including and Federal agencies with an Federal Acquisition Regulations, and in whether the information will have opportunity to comment on proposed most cases through a competitive practical utility; and/or continuing collections of procurement process. Many of the • Evaluate the accuracy of the information in accordance with the current contractors manage and operate agency’s estimate of the burden of the Paperwork Reduction Act of 1995 more than one center. proposed collection of information, (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This II. Review Focus: The Department of including the validity of the program helps to ensure that requested Labor is particularly interested in methodology and assumptions used; data can be provided in the desired comments which: • Enhance the quality, utility, and format, reporting burden (time and • Evaluate whether the proposed clarity of the information to be financial resources) is minimized, collection of information is necessary collected; and collection instruments are clearly for the proper performance of the • Minimize the burden of the understood, and the impact of collection functions of the agency, including collection of information on those who requirements on respondents can be whether the information will have are to respond, including through the properly assessed. Currently the practical utility; use of appropriate automated, Employment Administration is • Evaluate the accuracy of the electronic, mechanical, or other soliciting comments concerning the agency’s estimate of the burden of the technological collection techniques or proposed extension with change of the proposed collection of information,

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including the validity of the to ensure compliance with Federal Type of Review: Revision. methodology and assumptions used; requirements and the terms of the • Agency: Employment and Training Enhance the quality, utility, and contract. Statistical reports are normally Administration. clarity of the information to be generated from source documents Title: Standard Center Job Corps collected; and directly by the Federal Government, not • Minimize the burden of the contractors. During the last two years, Request for Proposal and Related collection of information on those who several paper forms have been Contractor Information Gathering are to respond, including through the automated, and in many instances, Reporting Requirements. use of appropriate automated, eliminated. Data is entered directly into OMB Number: 1205–0219. electronic, mechanical, or other a database and reports are generated as Recordkeeping: Center operators are technological collection techniques or a result of the data. Examples of these required to keep accurate records on other forms of information technology, are ETA Forms 2110 (Center Financial each Job Corps student. All records are e.g., permitting electronic submissions Report), 2181 & 2181A (Center required to be maintained on Center for of responses. Operations Budget), 6–127 (Job Corps five years. III. Current Actions: The Request for Utilization Summary), 6–131A Affected Public: Business, for profit Proposal (RFP) provides potential (Disciplinary Discharge), 6–131B and not-for-profit institutions, and offerors with the Government’s (Review Board Hearings), 6–131C Tribal Governments. expectations for the development of (Rights to Appeal), 6–40 (Student proposals to operate Job Corps Centers. Profile), 6–61 (Notice of Termination) Burden Summary: I. The annual The proposals developed by offerors in and 3–38 (Property Inventory burden hours estimated for the response to the RFP are evaluated in Transcription). In addition, several preparation of the Standard Center Job terms of technical factors and costs. forms are now provided in Portable Data Corps Request for Proposal submitted by These proposals serve the principal File (PDF) format. These forms are the new and experienced contractors is basis for selection of a successful 6–125 (Job Corps Health Staff Activity), 15,300 hours. offeror. The operation of the Job Corps 6–128 (Job Corps Health Annual Service II. Data collection for the Center program is such that many activities Costs), 6–112 (Immunization Record), Financial and the Center Operations required of contractors must be 6–135 (CM Health Record Envelope), 6– Budget Reports is made more than coordinated with organizations, both 136 (CM Health Record Folder), 6–37 quarterly, and is essential to ensure Federal and nonfederal. Most of the (Inspection Residential & Educational contractor financial compliance with information collection requirements of Facilities), 6–38 (Inspection Water contractual requirements and to ensure Job Corps Center operators stem directly Supply Facilities), and 6–39 (Inspection orderly operations of the program (1,462 from operational needs or are necessary of Waste Treatment Facilities Costs.) hours).

Number of Submissions Total annual Hours per Total burden Required activity ETA form No. respondents per year submissions submission hours

Center Financial Report ...... 2110 ...... 118 90 at 12/year 1192 1 1192 28 at 4/year Center Operations Budget ...... 2181/–2181/A ... 90 3 ...... 270 1 270

Total ...... 1,462

III. Data previously collected on the utilizing a personal computer that reports are created. Previously the forms listed below is now being transmits the data electronically to a burden for preparing these forms collected in an electronic information centralized database. From this database manually was approximately 8,181 system (347 hours). Data is entered many management and performance hours.

Number of Submissions Total annual Hours per Total burden Required activity ETA form No. respondents per year submissions submission hours

Job Corps Utilization Summary ...... 6–127 ...... 118 12 1416 0.01875 27 (1 minute) Disciplinary Discharge ...... 6–131A ...... 1500 1 1500 0.01875 28 Review Board Hearings ...... 6–131B ...... 1500 1 1500 0.01875 28 Rights to Appeal ...... 6–131C ...... 1500 1 1500 0.01875 28 Student Profile ...... 6–40 ...... 1500 1 1500 0.01875 28 Notice of Termination ...... 6–61 ...... 1500 1 1500 0.01875 28 Property Inventory Transcription ...... 3–28 ...... 126 52 6552 0.0275 180 (3 minutes)

Total ...... 347

Student personnel requirements such system. The total burden hours last additional data entry has been reduced. as: Student payroll information, student reported for processing these The initial data entry is maintained in training and education courses received, requirements were 46,720 burden hours. the national database and used for student leave, disciplinary actions and However, due to the fact that identical multiple reporting purposes, therefore medical information is also being information is being collected for reducing the need to enter the data more collected in an electronic information multiple purposes, the burden for than once. As a result, the burden hours

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have been reduced from 46,720 to a total IV. Major record keeping and in Portable Data Files or PDF forms. The of 20,000 hours. The total burden operational forms listed below that total burden for processing these forms associated with the input of data to data pertain to student and facility is 22,300 hours. screens is 20,347 hours. administrative matters are not provided

Number of Submissions Total annual Hours per Total burden Required activity ETA form No. respondents per year submissions submission hours

Job Corps Health Staff Activity ...... 6–125 ...... 118 1 118 0.25 29.5 (25 min) Job Corps Health Annual Service Costs ... 6–128 ...... 118 1 118 0.25 29.5 Immunization Record ...... 6–112 ...... 71000 1 71000 0.05 3550 (5 min) CM Health Record Envelope ...... 6–135 ...... 71000 1 71000 0.125 8875 (13 min) CM Health Record Folder ...... 6–136 ...... 71000 1 71000 0.125 8875 Inspection of Residential & Educational 6–37 ...... 118 4 472 0.5 236 Facilities. Inspection of Waste Treatment Facilities 6–39 ...... 23 4 92 1.25 115 Costs. (1 hr. 25 min) Inspection Water Supply Facilities ...... 6–38 ...... 118 4 472 1.25 590

Total ...... 22,300

V. A total of 7,302 burden hours are are required for the operation of a Job estimated for the preparation of the Corps center. Center Operating Plans listed below that

Number of Submissions Total annual Hours per Total burden Required activity ETA form No. respondents per year submissions submission hours

Center Operation Plan ...... 90 1 90 30 2700 Maintenance ...... 118 1 118 5 590 C/M Welfare ...... 118 1 118 2 236 Annual VST ...... 118 1 118 24 2832 Annual Staff Training ...... 118 1 118 1 118 Energy Conservation ...... 118 1 118 5 590 Outreach ...... 118 1 118 2 236

Total ...... 7,302

Total Estimated Burden: 66,711 summarized and/or included in the and its tributaries; (2) District hours. request for Office of Management and Commander’s overview of current Total Burden Cost (Capital/Startup): Budget approval of the information project issues within the Memphis The Office of Job Corps has automated collection request; they will also District; and (3) Presentations by local the data collection process for its become a matter of public record. organizations and members of the Centers. The Center Information System Dated: February 27, 2003. public giving views or comments on any allows all centers to directly input data Richard C. Trigg, issue affecting the programs or projects into a national database. As a result, the of the Commission and the Corps of Administrator, Office of Job Corps. burden hours associated with the Engineers. preparation of forms has decreased [FR Doc. 03–5270 Filed 3–5–03; 8:45 am] significantly. The maintenance cost BILLING CODE 4510–30–M TIME AND DATE: 9 a.m., April 8, 2003. associated with the system is estimated PLACE: On board MISSISSIPPI V at Mud to be $2.7 million a year for hardware Island, Memphis, TN. and software. MISSISSIPPI RIVER COMMISSION STATUS: Total Burden Cost (Operating/ Open to the public. Sunshine Act Meetings Maintaining): The costs to contractors MATTERS TO BE CONSIDERED: (1) for accomplishing record keeping AGENCY: Mississippi River Commission. Summary report by President of the requirements is contracted and TIME AND DATE: 9 a.m., April 7, 2003. Commission on national and regional computed by the Federal government issues affecting the U.S. Army Corps of annually. While precise costs cannot be PLACE: On board MISSISSIPPI V at City Engineers and Commission programs identified, at the present time and based Front, Cape Girardeau, MO. and projects on the Mississippi River on past experience, the annual and STATUS: Open to the public. and its tributaries; (2) District related costs for contractor staff are MATTERS TO BE CONSIDERED: (1) Commander’s overview of current estimated to be $955,458, which Summary report by President of the project issues within the Memphis represents an average cost of $14.00 per Commission on national and regional District; and (3) Presentations by local hour. issues affecting the U.S. Army Corps of organizations and members of the Comments submitted in response to Engineers and Commission programs public giving views or comments on any this comment request will be and projects on the Mississippi River issue affecting the programs or projects

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of the Commission and the Corps of the Office of Management and Budget OFFICE OF PERSONNEL Engineers. (OMB) a request for review of a revised MANAGEMENT TIME AND DATE: 9 a.m., April 9, 2003. information collection. RI 30–9, Reinstatement of Disability Annuity Submission for OMB Review; PLACE: On board MISSISSIPPI V at City Comment Request for Reclearance of Front, Greenville, MS. Previously Terminated Because of Restoration to Earning Capacity, informs a Revised Information Collection: RI STATUS: Open to the public. former disability annuitants of their 25–7 MATTERS TO BE CONSIDERED: (1) right to request restoration under title 5, AGENCY: Office of Personnel Summary report by President of the U.S.C. 8337. It also specifies the Commission on national and regional Management. conditions to be met and the issues affecting the U.S. Army Corps of documentation required for a person to ACTION: Notice. Engineers and Commission programs and projects on the Mississippi River request reinstatement. SUMMARY: In accordance with the and its tributaries; (2) District Comments are particularly invited on: Paperwork Reduction Act of 1995 (Pub. Commander’s overview of current Whether this collection of information L. 104–13, May 22, 1995), this notice project issues within the Vicksburg is necessary for the proper performance announces that the Office of Personnel District; and (3) Presentations by local of functions of the Office of Personnel Management (OPM) has submitted to organizations and members of the Management, and whether it will have the Office of Management and Budget public giving views or comments on any practical utility; whether our estimate of (OMB) a request for review of a revised issue affecting the programs or of the the public burden of this collection of information collection. RI 25–7, Marital Commission and the Corps of Engineers. information is accurate, and based on Status Certification Survey, is used to TIME AND DATE: 9 a.m., April 11, 2003. valid assumptions and methodology; determine whether widows, widowers, PLACE: On board MISSISSIPPI V at New and ways in which we can minimize the and former spouses receiving survivor Orleans District Dock, Foot of Prytania burden of the collection of information annuities from OPM have remarried Street, New Orleans, LA. on those who are to respond, through before reaching age 55 and, thus, are no STATUS: Open to the public. the use of appropriate technological longer eligible for benefits from OPM. collection techniques or other forms of MATTERS TO BE CONSIDERED: (1) Approximately 2,500 forms are Summary report by President of the information technology. completed annually. Each form takes Commission on national and regional Approximately 200 forms are approximately 15 minutes to complete. issues affecting the U.S. Army Corps of completed annually. The form takes The annual estimated burden is 625 Engineers and Commission programs approximately 60 minutes to respond, hours. and projects on the Mississippi River including a medical examination. The For copies of this proposal, contact and its tributaries; (2) District annual estimated burden is 200 hours. Mary Beth Smith-Toomey on (202) 606– Commander’s overview of current Burden may vary depending on the time 8358, FAX (202) 418–3251 or via E-mail project issues within the New Orleans required for a medical examination. to [email protected]. Please include a District; and (3) Presentations by local For copies of this proposal, contact mailing address with your request. organizations and members of the Mary Beth Smith-Toomey on (202) 606– public giving views or comments on any DATES: Comments on this proposal 8358, FAX (202) 418–3251 or via E-mail issue affecting the programs or projects should be received within 30 calendar of the Commission and the Corps of to [email protected]. Please include a days from the date of this publication. mailing address with your request. Engineers. ADDRESSES: Send or deliver comments CONTACT PERSON FOR MORE INFORMATION: DATES: Comments on this proposal to— Mr. Stephen Gambrell, telephone 601– should be received within 60 calendar William C. Jackson, Chief, Eligibility 634–5766. days from the date of this publication. Division, Retirement and Insurance Richard B. Jenkins, ADDRESSES: Send or deliver comments Service, U.S. Office of Personnel Colonel, Corps of Engineers, Secretary, to—Ronald W. Melton, Chief, Management, 1900 E Street, NW., Mississippi River Commission. Operations Support Division, Room 2336, Washington, DC 20415– [FR Doc. 03–5469 Filed 3–4–03; 2:18 pm] Retirement and Insurance Service, U.S. 3560; and BILLING CODE 3710–GX–M Office of Personnel Management, 1900 E Stuart Shapiro, OPM Desk Officer, Street, NW., Room 3349, Washington, Office of Information & Regulatory DC 20415–3540. Affairs, Office of Management and OFFICE OF PERSONNEL For Information Regarding Budget, New Executive Office MANAGEMENT Administrative Coordination—Contact: Building, NW., Room 10235, Cyrus S. Benson, Team Leader, Desktop Washington, DC 20503. Proposed Collection; Comment Publishing and Printing Team, Budget Request for Review of a Revised For Information Regarding and Administrative Services Division, Information Collection: RI 30–9 Administrative Coordination—Contact: (202) 606–0623. Cyrus S. Benson, Team Leader, Desktop AGENCY: Office of Personnel Office of Personnel Management. Publishing and Printing Team, Budget Management. Kay Coles James, and Administrative Services Division, ACTION: Notice. (202) 606–0623. Director. Office of Personnel Management. SUMMARY: In accordance with the [FR Doc. 03–5197 Filed 3–5–03; 8:45 am] Kay Coles James, Paperwork Reduction Act of 1995 (Pub. BILLING CODE 6325–50–P L. 104–13, May 22, 1995), this notice Director. announces that the Office of Personnel [FR Doc. 03–5198 Filed 3–5–03; 8:45 am] Management (OPM) intends to submit to BILLING CODE 6325–50–P

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SECURITIES AND EXCHANGE Cornerstone Total Return Fund, Inc. respectively, incurred in connection COMMISSION (f/k/a EIS Fund, Inc.), based on net asset with the reorganizations were paid by value. Expenses of $144,293 incurred in each applicant. [Release No. IC–25949] connection with the reorganization were Filing Dates: The applications were Notice of Applications for paid by applicant and the acquiring filed on November 12, 2002, and Deregistration Under Section 8(f) of the fund. amended on January 31, 2003. Investment Company Act of 1940 Filing Dates: The application was Applicant’s Address: 1221 Avenue of filed on November 25, 2002, and the Americas, New York, NY 10020. February 28, 2003. amended on February 14, 2003. The following is a notice of Applicant’s Address: 383 Madison TCW/DW Term Trust 2000 [File No. applications for deregistration under Ave., New York, NY 10179. 811–7808] section 8(f) of the Investment Company The Lipper Funds, Inc. [File No. 811– Summary: Applicant, a closed-end Act of 1940 for the month of February, 9108] investment company, seeks an order 2003. A copy of each application may be declaring that it has ceased to be an obtained for a fee at the SEC’s Public Summary: Applicant seeks an order investment company. On December 18, Reference Branch, 450 Fifth St., NW., declaring that it has ceased to be an 2000, applicant made a liquidating Washington, DC 20549–0102 (tel. 202– investment company. On January 31, distribution to its shareholders, based 942–8090). An order granting each 2003, applicant made a liquidating on net asset value. Applicant incurred application will be issued unless the distribution to its shareholders, based no expenses in connection with the SEC orders a hearing. Interested persons on net asset value. Expenses of $34,000 liquidation. may request a hearing on any incurred in connection with the Filing Dates: The application was application by writing to the SEC’s liquidation were paid by Lipper & filed on November 12, 2002, and Secretary at the address below and Company L.L.C. and Prime Lipper Asset amended on January 31, 2003. serving the relevant applicant with a Management, applicant’s investment Applicants’ Address: 1221 Avenue of copy of the request, personally or by advisers. the Americas, New York, NY 10020. mail. Hearing requests should be Filing Dates: The application was received by the SEC by 5:30 p.m. on filed on December 17, 2002, and Federated Fund for U.S. Government March 25, 2003, and should be amended on February 6, 2003. Securities, Inc. [File No. 811–1890] accompanied by proof of service on the Applicant’s Address: 101 Park Ave., 6th Floor, New York, NY 10178. Summary: Applicant seeks an order applicant, in the form of an affidavit or, declaring that it has ceased to be an for lawyers, a certificate of service. Morgan Stanley Dean Witter Mid-Cap investment company. On October 7, Hearing requests should state the nature Dividend Growth Securities [File No. 2002, applicant transferred its assets to of the writer’s interest, the reason for the 811–8577] Federated Fund for U.S. Government request, and the issues contested. Summary: Applicant seeks an order Securities, based on net asset value. Persons who wish to be notified of a Applicant incurred no expenses in hearing may request notification by declaring that it has ceased to be an investment company. On July 21, 2000, connection with the reorganization. writing to the Secretary, SEC, 450 Fifth Filing Dates: The application was Street, NW., Washington, DC 20549– applicant transferred its assets to Morgan Stanley Capital Opportunities filed on December 6, 2002, and 0609. For Further Information Contact: amended on February 6, 2003. Diane L. Titus at (202) 942–0564, SEC, Trust (formerly known as Morgan Stanley Dean Witter Mid-Cap Equity Applicant’s Address: 1001 Liberty Division of Investment Management, Ave., Pittsburgh, PA 15222–3779. Office of Investment Company Trust), based on net asset value. Regulation, 450 Fifth Street, NW., Expenses of approximately $206,000 Pauze Funds [File No. 811–8148] Washington, DC 20549–0506. incurred in connection with the reorganization were paid by applicant. Summary: Applicant seeks an order Cathay Securities Fund, Inc. [File No. Filing Dates: The application was declaring that it has ceased to be an 811–10013] filed on November 12, 2002, and investment company. On October 28, Summary: Applicant, a closed-end amended on February 6, 2003. 2002, applicant made a liquidating investment company, seeks an order Applicant’s Address: 1221 Avenue of distribution to its shareholders, based declaring that it has ceased to be an the Americas, New York, NY 10020. on net asset value. Applicant’s investment company. On February 14, custodian has retained $10,213 to pay Morgan Stanley Dean Witter Municipal 2003, applicant made a liquidating outstanding debts and liabilities. Income Trust [File No. 811–5214] distribution to its sole shareholder, Expenses of $198 incurred in based on net asset value. Expenses of Morgan Stanley Dean Witter Municipal connection with the liquidation were $16,000 incurred in connection with the Income Trust II [File No. 811–5509] paid by applicant. liquidation were paid by applicant. Filing Dates: The application was Morgan Stanley Dean Witter Municipal filed on December 30, 2002, and Filing Dates: The application was Income Trust III [File No. 811–5842] filed on January 27, 2003, and amended amended on January 31, 2003. on February 18, 2003. Summary: Each applicant, a closed- Applicant’s Address: 14340 Torrey Applicant’s Address: 777 North end investment company, seeks an Chase Blvd., Suite 170, Houston, TX Broadway, Los Angeles, CA 90012. order declaring that it has ceased to be 77014. an investment company. On February 2, The Cornerstone Strategic Return Fund, 2001, each applicant transferred its PW Technology Partners, L.P. [File No. Inc. [File No. 811–8878] assets to Morgan Stanley Tax-Exempt 811–9181] Summary: Applicant, a closed-end Securities Trust (formerly known as Summary: Applicant, a closed-end investment company, seeks an order Morgan Stanley Dean Witter Tax- investment company, seeks an order declaring that it has ceased to be an Exempt Securities Trust), based on net declaring that it has ceased to be an investment company. On October 31, asset value. Expenses of approximately, investment company. On October 15, 2002, applicant transferred its assets to $134,000, $129,000 and $101,000, 2002, applicant transferred its assets to

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UBS PW Technology Partners, L.L.C., and the SBA Office of the National the Secretary of Commerce, may based on net asset value. Expenses of Ombudsman will hold a public hearing designate alternate commissioners. The $100,000 incurred in connection with on Tuesday, March 25, 2003, at 1 p.m. Advisory Panel to the U.S. Section is the reorganization were paid by UBS at the Pima Community College, 4905 composed of 14 members, 11 of whom PaineWebber Inc., affiliate of the East Broadway Boulevard, Tucson, AZ, are appointed by the Secretary, in applicant’s general partner. 85709, to receive comments and consultation with the Secretary of Filing Dates: The application was testimony from small business owners, Commerce. Advisory Panel members filed on December 2, 2002, and small government entities, and small serve for a term not to exceed 4 years, amended on January 31, 2003. non-profit organizations concerning and may not serve more than two Applicant’s Address: c/o UBS regulatory enforcement and compliance consecutive terms. PaineWebber Inc., 1285 Avenue of the actions taken by Federal agencies. The Advisory Panel will continue to Americas, New York, NY 10019. Anyone wishing to attend or to make follow the procedures prescribed by the For the Commission, by the Division of a presentation must contact Janet Federal Advisory Committee Act Investment Management, pursuant to Dunipace in writing or by fax, in order (FACA). Meetings will continue to be delegated authority. to be put on the agenda. Janet Dunipace, open to the public unless a Margaret H. McFarland, U.S. Small Business Administration, determination is made in accordance Deputy Secretary. Arizona District Office, 2828 North with section 10 of the FACA, 5 U.S.C. [FR Doc. 03–5281 Filed 3–5–03; 8:45 am] Central Avenue, Suite 800, Phoenix, AZ 552b(c)(l) and (4), that a meeting or a BILLING CODE 8010–01–M 85004, phone (602) 745–7207, fax (602) portion of the meeting should be closed 745–7210, e-mail to the public. Notice of each meeting [email protected]. will continue to be provided for For more information, see our Web SMALL BUSINESS ADMINISTRATION publication in the Federal Register as site at www.sba.gov/ombudsman. far in advance as possible prior to the Region VIII Regulatory Fairness Board; Dated: February 26, 2003. meeting. Michael L. Barrera, For further information on the Public Federal Regulatory National Ombudsman. renewal of the Advisory Panel, please Enforcement Fairness Hearing contact Dorothy Zbicz, Office of Marine [FR Doc. 03–5258 Filed 3–5–03; 8:45 am] Conservation in the Department of State, The Small Business Administration BILLING CODE 8025–01–P (202) 647–3073. Region VIII Regulatory Fairness Board and the SBA Office of the National Dated: February 11, 2003. Ombudsman will hold a public hearing DEPARTMENT OF STATE Mary Beth West, on Thursday, March 27, 2003, at 1:30 Deputy Assistant Secretary for Oceans and p.m. at the Denver Public Library, [Public Notice 4261] Fisheries, Department of State. Central Branch, 10 West 14th Avenue U.S. Advisory Panel to the U.S. Section [FR Doc. 03–5286 Filed 3–5–03; 8:45 am] Parkway, Denver, CO 80204, to receive of the North Pacific Anadromous Fish BILLING CODE 4710–09–P comments and testimony from small Commission; Notice of Renewal business owners, small government entities, and small non-profit The Department of State has renewed DEPARTMENT OF STATE the Charter of the U.S. Advisory Panel organizations concerning regulatory [Public Notice 4290] enforcement and compliance actions to the U.S. Section of the North Pacific taken by Federal agencies. Anadromous Fish Commission (NPAFC) Bureau of Educational and Cultural Anyone wishing to attend or to make for another two years, effective Affairs Request for Grant Proposals: a presentation must contact Joseph September 5, 2002. U.S./Ukraine Policy Dialog Exchange Edwards in writing or by fax, in order The NPAFC is a venue for to be put on the agenda. Joseph consultation and coordination of SUMMARY: The Office of Citizen Edwards, U.S. Small Business cooperative high seas fishery Exchanges of the Bureau of Educational Administration, Colorado District enforcement among Convention parties. and Cultural Affairs announces an open Office, 721 19th Street, Suite 426, The NPAFC was established by the competition for the U.S./Ukraine Policy Denver, CO 80202, phone (303) 844– Convention for the Conservation of Dialog Exchange. Public and private 2607 Ext 231, fax (303) 844–6468, e-mail Anadromous Stocks in the North Pacific non-profit organizations meeting the [email protected]. Ocean, signed on February 12, 1992, by provisions described in Internal For more information, see our Web Canada, Japan, the Russian Federation, Revenue Code section 26 U.S.C. site at www.sba.gov/ombudsman. and the United States, and entered into 501(c)(3) may submit proposals to Dated: February 26, 2003. force on February 16, 1993. The U.S. support a program that will facilitate an Advisory Panel will continue to work on-going exchange of views among Michael L. Barrera, with the U.S. Section to promote the policymakers and other leading experts National Ombudsman. conservation of anadromous fish stocks, from both countries. The program will [FR Doc. 03–5257 Filed 3–5–03; 8:45 am] particularly salmon, throughout their focus on issues that affect U.S./ BILLING CODE 8025–01–P migratory range in the North Pacific Ukrainian relations. Ocean, as well as ecologically related Program Information species. SMALL BUSINESS ADMINISTRATION The U.S. Section of the Commission Overview: The Bureau of Educational Region IX Regulatory Fairness Board; is composed of three Commissioners and Cultural Affairs (The Bureau) Public Federal Regulatory who are appointed by the President. invites applicants to submit a proposal Enforcement Fairness Hearing Each Commissioner is appointed for a for a two-year project that will initiate term not to exceed 4 years, but is and support dialog among policymakers The Small Business Administration eligible for reappointment. The and leading experts from both countries. Region IX Regulatory Fairness Board Secretary of State, in consultation with The purpose of the program is to

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advance constructive dialog and Pending availability of funds, programs Budget Guidelines enhance relationships among experts in should begin in June 2003. The Bureau anticipates awarding one the two countries by providing an on- The Executive Summary and grant not exceeding $231,000, to Narrative of the proposal should be no going forum through which they can support program and administrative more than twenty pages in length, freely exchange ideas and discuss issues costs required to implement this double-spaced, single-sided, and and concerns of mutual interest in the program. Bureau grant guidelines state unbound. Lettered tabs should be used context of the bilateral relationship that organizations with less than four to divide proposal sections. Applicants between the two nations. Of particular years of experience in conducting should describe a comprehensive interest are key issues that impact international exchange programs are strategy for managing all logistical and Ukraine’s democratic and market- limited to $60,000 in Bureau support. substantive aspects of this program. oriented development and its eventual Therefore, organizations with less than Programs must comply with J–1 visa integration into the Euro-Atlantic four years of experience in conducting community. Participants should be from regulations. In the Solicitation Package, forms required by Federal regulations international exchanges would not be a range of organizations and sectors and Bureau policies are provided for eligible to apply under this competition. such as business, media, research applicants to complete. Please follow Competitive proposals will provide institutes, as well as government. the guidelines; complete and return the maximum levels of cost-sharing and Guidelines: Applicants should necessary forms with the submission. funding from private sources in support propose four, one-week working Please refer to the Technical Format and of this program. Applicants must submit sessions over the two-year grant period. Instructions page in the Proposal a comprehensive budget for the entire Two should take place in the U.S. and Submission Instructions (PSI) for program. There must be a summary two in Ukraine. They should not be held guidance. budget as well as breakdowns reflecting in the same country two times in a row, Involvement of the Public Affairs both administrative and program but alternate between the U.S. and Section (PAS) in Kiev: Though project budgets. Applicants may provide Ukraine. Up to 30 participants may take administration and implementation are separate sub-budgets for each program part in each working session. Each the responsibility of the grantee, PAS at component, phase, location, or activity country should be as equally the U.S. Embassy in Kiev will provide to provide clarification. ECA funding represented as possible with no more significant project oversight. As soon as may support the following costs: (1) Travel Costs. International and than 15 in attendance from each a grant is awarded, the grantee must domestic airfares (per the ‘‘Fly America country. During U.S.-based working contact PAS for guidance on moving Act’’), transit costs, ground sessions, participants will take part in forward with the project. In addition to transportation costs, and visas for U.S. roundtable discussions. Where evaluating project proposals (for the participants. (Ukrainian participants appropriate, informative lecture-style purpose of awarding the grant) and will be issued J–1 at no charge to the sessions on U.S.-style think tanks, approving proposed Ukrainian participants, PAS must be consulted on grantee organization.) media outlets, advocacy organizations, (2) Per Diem. For U.S.-and Ukraine- and non-governmental organizations the planning and implementation of both U.S.-based and in-country based programming, organizations may be provided for Ukrainian should not exceed the published participants, with an emphasis on the activities (including identification and selection of participants). PAS will also Federal per diem rates for individual role of these institutions in U.S. civil U.S. cities. society, their relationship with the U.S. observe in-country activities, debrief participants, and work with the grantee (3) Interpreters. Salary costs for local federal government, and their influence interpreters in Ukraine should be on policy formation. Further, to evaluate project impact. Program Data Requirement: The included in the budget. Bureau grants consultative visits to these institutions grantee will be required to maintain do not pay for foreign interpreters to may also be provided. Ukraine-based specific data on program participants accompany delegations from their home working sessions will be composed of and activities in an electronically country. U.S. Department of State roundtable discussions and other accessible database format that can be Interpreters should be used for U.S.- exchange activities, as appropriate. The shared with PAS and the program office based working sessions. Applicants proposal should provide a draft at the Bureau, as required. As a should budget $400 per interpreters’ schedule with agenda for each working minimum, the data must include the r/t transportation from their home base session. For participant recruitment and following: to the program site, for reimbursements selection, a detailed plan should be (1) Name, address, contact for taxi fares, plus any other provided. The Public Affairs Section at information and biographic sketch of all transportation expenses during the the U.S. Embassy in Kiev and the persons who travel internationally on program. Interpreters’ per diem should program office at the Bureau reserve the funds provided by the grant. exceed the maximum allowable USG right to approve or disapprove (2) Itineraries of international and rate. Salary expenses are covered nominated participants. Grantees will domestic travel of all participants, centrally and should not be part of an be required to provide a list of proposed including dates, location, and contact applicant’s proposed budget. Ukrainian participants at least eight information. (4) Book and cultural allowance. weeks in advance of travel to the U.S. Bureau Acknowledgement: Foreign participants are entitled to a In the proposal, applicants should Applicants are required to acknowledge one-time cultural allowance of $150 per describe mechanisms that will be the Bureau of Educational and Cultural person, plus a book allowance of $50. developed to disseminate the findings Affairs and the U.S. Department of State Interpreters should be reimbursed up to and recommendations of the as the funder of the program in all $150 for expenses when they escort participants to a broad audience in the published and broadcast materials, participants to cultural events. U.S. U.S. and Ukraine. Competitive including public announcements and program staff, trainers or participants proposals will include a vision for the program schedules. Please note that this are not eligible to receive these benefits. continuation of this exchange when U.S. will be a formal requirement in all final (5) Consultants. Consultants may be government funding is exhausted. grant awards. used to provide specialized expertise or

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to make presentations. Daily honoraria the RFGP deadline has passed, Bureau into the total proposal. Public Law 104– cannot exceed $250 per day. staff may not discuss this competition 319 provides that ‘‘in carrying out Subcontracting organizations may also with applicants until the proposal programs of educational and cultural be used, in which case the written review process has been completed. exchange in countries whose people do not fully enjoy freedom and agreement between the prospective To Download a Solicitation Package via democracy,’’ the Bureau ‘‘shall take grantee and subcontractor should be Internet: included in the proposal. Subcontracts appropriate steps to provide should be itemized in the budget. The entire Solicitation Package may opportunities for participation in such (6) Room rental. Room rental should be downloaded from the Bureau’s Web programs to human rights and not exceed $250 per day. Applicants site at http://exchanges.state.gov/ democracy leaders of such countries.’’ should cost-share higher room rental education/RFGPs. Please read all Public Law 106–113 requires that the costs for rates above $250 per day. information before downloading. governments of the countries described (7) Materials development and Deadline for Proposals above do not have inappropriate publication. Proposals may contain influence in the selection process. costs to purchase, develop, translate, All proposal copies must be received Proposals should reflect advancement of and/or distribute findings and at the Bureau of Educational and these goals in their program contents, to recommendations that are a result of the Cultural Affairs by 5 p.m., Washington, the full extent deemed feasible. four working sessions. Grantee DC time, on April 30, 2003. Faxed documents will not be accepted at any Adherence to All Regulations organizations should expect to submit a Governing the J Visa copy of all program materials to the time. Documents postmarked on the due Bureau. date but received on a later date will not The Office of Citizen Exchanges of the (8) Return travel allowance. A return be accepted. Each applicant must ensure Bureau of Educational and Cultural travel allowance of $70 for each foreign that the proposals are received by the Affairs is the official program sponsor of participant may be included in the above deadline. the exchange program covered by this Applicants must follow all budget. The allowance may be used for RFGP, and an employee of the Bureau instructions in the Solicitation Package. incidental expenses incurred during will be the ‘‘Responsible Officer’’ for the The original and eight (8) copies of the international travel. program under the terms of 22 CFR part application should be sent to: U.S. (9) Health Insurance. Foreign 62, which covers the administration of Department of State, SA–44, Bureau of the Exchange Visitor Program (J visa participants will be covered under the Educational and Cultural Affairs, Ref.: program). Under the terms of 22 CFR terms of a Bureau-sponsored health ECA/PE/C/EUR–03–37, Program part 62, organizations receiving grants insurance policy. The premium is paid Management, ECA/EX/PM, Room 534, under this RFGP will be third parties by the Bureau directly to the insurance 301 4th Street, SW., Washington, DC ‘‘cooperating with or assisting the company. Applicants are permitted to 20547. sponsor in the conduct of the sponsor’s include costs for travel insurance for Applicants must also submit the program.’’ The actions of grantee U.S. participants in the budget. ‘‘Executive Summary’’ and ‘‘Proposal program organizations shall be (10) Wire transfer fees. When Narrative’’ sections of the proposal on a ‘‘imputed to the sponsor in evaluating necessary, applicants may include costs 3.5’’ diskette, formatted for DOS. These the sponsor’s compliance with’’ 22 CFR to transfer funds to partner documents must be provided in ASCII part 62. Therefore, the Bureau expects organizations overseas. text (DOS) format with a maximum line that any organization receiving a grant (11) Administrative Costs. Costs length of 65 characters. The Bureau will under this competition will render all necessary for the effective transmit these files electronically to the assistance necessary to enable the administration of the program may Public Affairs section at the U.S. Bureau to fully comply with 22 CFR include salaries for grantee organization Embassy in Ukraine for its review, with part 62 et seq. The Bureau of employees, benefits, and other direct the goal of reducing the time it takes to Educational and Cultural Affairs places and indirect costs per detailed get embassy comments for the Bureau’s great emphasis on the secure and proper instructions in the Application Package. grants review process. administration of Exchange Visitor (J Please refer to the Solicitation Package visa) Programs and adherence by Diversity, Freedom and Democracy for complete budget guidelines and grantee program organizations and Guidelines formatting instructions. program participants to all regulations Announcement Title and Number: All Pursuant to the Bureau’s authorizing governing the J visa program status. correspondence with the Bureau legislation, programs must maintain a Therefore, proposals should explicitly concerning this RFGP should reference non-political character and should be state in writing that the applicant is the above title and number ECA/PE/C/ balanced and representative of the prepared to assist the Bureau in meeting EUR–03–37. diversity of American political, social, all requirements governing the FOR FURTHER INFORMATION CONTACT: and cultural life. ‘‘Diversity’’ should be administration of Exchange Visitor Interested organizations should contact interpreted in the broadest sense and Programs as set forth in 22 CFR part 62. the Office of Citizen Exchanges, ECA/ encompass differences including, but If the applicant has experience as a PE/C/EUR, Room 224, U.S. Department not limited to ethnicity, race, gender, designated Exchange Visitor Program of State, 301 4th Street, SW., religion, geographic location, socio- Sponsor, the applicant should discuss Washington, DC 20547, telephone 202– economic status, and physical their record of compliance with 22 CFR 619–5327, fax number 202–619–4350, e- challenges. Applicants are strongly part 62 et seq., including the oversight mail [email protected] to request a encouraged to adhere to the of their Responsible Officers and Solicitation Package. Please specify advancement of this principle both in Alternate Responsible Officers, Bureau Program Officer Henry Scott on program administration and in program screening and selection of program all other inquiries and correspondence. content. Please refer to the review participants, provision of pre-arrival Please read the complete Federal criteria under the ‘‘Support for information and orientation to Register announcement before sending Diversity’’ section for specific participants, monitoring of participants, inquiries or submitting proposals. Once suggestions on incorporating diversity proper maintenance and security of

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forms, record-keeping, reporting and be cited in both program administration published language will not be binding. other requirements. and program content. Issuance of the RFGP does not The Office of Citizen Exchanges of 5. Institutional Capacity: Proposed constitute an award commitment on the ECA will be responsible for issuing DS– personnel and institutional resources part of the Government. The Bureau 2019 forms to participants in this should be adequate and appropriate to reserves the right to reduce, revise, or program. achieve the program or project’s goals. increase proposal budgets in accordance A copy of the complete regulations Applicants must demonstrate significant with the needs of the program and the governing the administration of expertise with Ukrainian contemporary availability of funds. Awards made will Exchange Visitor (J) programs is issues, experience working with high- be subject to periodic reporting and available at http://exchanges.state.gov level Ukrainian and U.S. policymakers evaluation requirements. or from: United States Department of and experts, and experience and ability State, Office of Exchange Coordination to conduct all required logistics in Notification and Designation, ECA/EC/ECD—SA–44, Ukraine. Final awards cannot be made until Room 734, 301 4th Street, SW., 6. Follow-on Activities: Proposals funds have been appropriated by Washington, DC 20547, Telephone: should show what mechanisms will be Congress, allocated and committed (202) 401–9810, Fax: (202) 401–9809. put in place to ensure that through internal Bureau procedures. communication and dialog among Dated: February 26, 2003. Review Process participants continue after the grant has C. Miller Crouch, The Bureau will acknowledge receipt expired. of all proposals and will review them 7. Project Evaluation: Proposals Principal Deputy Assistant Secretary, Bureau for technical eligibility. Proposals will should include a plan to evaluate the of Educational and Cultural Affairs, Department of State. be deemed ineligible if they do not fully activity’s success, both as the activities adhere to the guidelines stated herein unfold and at the end of the program. A [FR Doc. 03–5009 Filed 3–5–03; 8:45 am] and in the Solicitation Package. All draft survey questionnaire or other BILLING CODE 4710–05–P eligible proposals will be reviewed by technique, plus a description of a the program office at the Bureau, as well methodology used to link outcomes to DEPARTMENT OF STATE as PAS/Kiev. Eligible proposals will be the original project objectives, are subject to compliance with Federal and recommended. [Public Notice 4289] Bureau regulations and guidelines and 8. Cost-effectiveness/Cost-sharing: forwarded to Bureau grant panels for The overhead and administrative Bureau of Educational and Cultural advisory review. Proposals may also be components of the proposal, including Affairs Request for Grant Proposals: reviewed by the Office of the Legal salaries and honoraria, should be kept FY2004 Vietnam Fulbright Foreign Adviser or by other Department as low as possible. All other items Student Exchange Program elements. Final funding decisions are at should be necessary and appropriate. SUMMARY: The Office of Academic the discretion of the Department of Proposals should maximize cost-sharing Exchange Programs of the Bureau of State’s Assistant Secretary for through other private sector support as Educational and Cultural Affairs Educational and Cultural Affairs. Final well as institutional direct funding announces an open competition to technical authority for assistance contributions. administer the Vietnam Fulbright awards grants resides with the Bureau’s Authority Foreign Student Exchange Program. Grants Officer. Public and private non-profit Overall grant making authority for organizations meeting the provisions Review Criteria this program is contained in the Mutual described in Internal Revenue Code Technically eligible applications will Educational and Cultural Exchange Act section 26 U.S.C. 501(c)(3) may submit be competitively reviewed according to of 1961, Public Law 87–256, as proposals to administer the program. amended, also known as the Fulbright- the criteria stated below. These criteria The Vietnam Fulbright Foreign Hays Act. The purpose of the Act is ‘‘to are not rank ordered and all carry equal Student Exchange Program was enable the Government of the United weight in the proposal evaluation: established by act of Congress in 1. Program planning: Detailed agenda States to increase mutual understanding FY1992. The program aims to offer the and relevant work plan should between the people of the United States highest quality training to Vietnamese demonstrate substantive undertakings and the people of other countries * * *; professionals and potential leaders who and logistical capacity. Agenda and plan to strengthen the ties which unite us have at least three to five years of work should adhere to the program overview with other nations by demonstrating the experience and are employed in areas and guidelines described above. educational and cultural interests, critical to Vietnam’s national 2. Ability to achieve program developments, and achievements of the development. The Vietnamese Fulbright objectives: Objectives should be people of the United States and other students pursue master’s degrees at U.S. reasonable, feasible, and flexible. nations * * * and thus to assist in the universities in academic fields critical Proposals should clearly demonstrate development of friendly, sympathetic to Vietnam’s national development and how the institution will meet the and peaceful relations between the consistent with the primary goal of the program’s objectives and plan. United States and the other countries of Vietnam Fulbright program, which is to 3. Multiplier effect/impact: Proposed the world.’’ The funding authority for foster mutual understanding between programs should strengthen long-term the program above is provided through the people of the United States and mutual understanding, including FREEDOM Support Act legislation. maximum sharing of information and Vietnam through educational establishment of long-term institutional Notice exchanges. and individual linkages. The terms and conditions published Program Information 4. Support of Diversity: Proposals in this RFGP are binding and may not should demonstrate substantive support be modified by any Bureau Overview of the Bureau’s policy on diversity. representative. Explanatory information The Vietnam Fulbright Foreign Achievable and relevant features should provided by the Bureau that contradicts Student Exchange Program is designed

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to bring approximately twenty to Programs must comply with J–1 visa instructions below). The Solicitation twenty-five Vietnamese students per regulations. Please refer to Solicitation Package contains detailed award year to study in the United States. The Package for further information. criteria, required application forms, students will pursue one- to two-year specific budget instructions, and Budget Guidelines graduate degrees in a wide range of standard guidelines for proposal academic fields such as American The Bureau anticipates awarding one preparation. Please specify Bureau studies, business, economics, grant of up to $1.8 million to support Program Officer Mary Hanlon on all environmental policy/studies, higher program and administrative costs other inquiries and correspondence. education, international relations, required to implement this program. Please read the complete Federal journalism, law, women’s studies (e.g., The Bureau encourages applicants to Register announcement before sending gender and development), public health, provide maximum levels of cost-sharing inquiries or submitting proposals. Once public policy/administration, and rural and funding from private sources in the RFGP deadline has passed, Bureau development. Your proposal should support of its programs. Bureau grant staff may not discuss this competition include program costs for two years, but guidelines require that organizations with applicants until the proposal administrative costs for only the first with less than four years experience in review process has been completed. year. Your proposal narrative should conducting international exchanges be limited to $60,000 in Bureau funding. To Download a Solicitation Package via provide detailed information on major Internet program activities to be undertaken. Therefore, organizations that cannot The entire Solicitation Package may The Office of Academic Exchange demonstrate at least four years be downloaded from the Bureau’s Web Programs, Department of State, works in experience in conducting international site at http://exchanges.state.gov/ partnership with the Public Affairs exchanges are ineligible to apply under education/RFGPs. Please read all Section of the U.S. Embassy in Hanoi to this competition. There should be a clear justification of information before downloading. administer the Fulbright Program in the need for any proposed sub-contracts. Vietnam. The grantee must collaborate Deadline for Proposals Subcontractors should bring unique with both offices to carry out the skills or value to the process, and this All proposal copies must be received programs and activities of the grant. should be demonstrated in the proposal. at the Bureau of Educational and Guidelines Applicants must submit a Cultural Affairs by 5 p.m. Washington, comprehensive budget for the entire DC time on Thursday, May 1, 2003. Pending availability of funds, program program. Awards may not exceed $1.8 Faxed documents will not be accepted administration activities should cover million, and may be smaller if an at any time. Documents postmarked the the time period from approximately overlapping grant with the incumbent due date but received on a later date October 1, 2003 to September 30, 2005. organization is necessary to ensure a will not be accepted. Each applicant The projected grantee caseload is smooth program transfer. There must be must ensure that the proposals are expected to be approximately 25 a summary budget as well as specific received by the above deadline. students. Program activities will include breakdowns reflecting both Applicants must follow all recruitment, selection, and placement of administrative and program budgets. instructions in the Solicitation Package. students in graduate programs, as well Applicants may provide separate sub- The original and 10 copies of the as arrangement of pre-academic English budgets for each program component, application should be sent to: U.S. language training, enrichment seminars, phase, location, or activity to provide Department of State, SA–44, Bureau of and monitoring of students while on clarification. Educational and Cultural Affairs, Ref.: their grants. Orientations should also be Allowable costs for the program include ECA/A/E/EAP–2004–Vietnam–02, provided for the students prior to their the following: Program Management, ECA/EX/PM, departure from Vietnam and by the host (1) Program costs for students’ grants (up Room 534, 301 4th Street, SW., institutions upon arrival at the to two years of graduate study plus up to six Washington, DC 20547. institutions. Applicants should plan to months of language training); Applicants must also submit the hold reentry seminars either before (2) Staff salaries and benefits; and ‘‘Executive Summary’’ and ‘‘Proposal students leave the U.S. or after their (3) Administrative costs including Narrative’’ sections of the proposal on a communication, overhead and indirect costs, ″ return to Vietnam. When possible, travel and per diem expenses, etc. 3.5 diskette, formatted for DOS. These alumni activities should be facilitated documents must be provided in ASCII and supported. Please refer to the Solicitation text (DOS) format with a maximum line Package for complete budget guidelines The grantee organization will be length of 65 characters. The Bureau will and formatting instructions. transmit these files electronically to the responsible for: Announcement Title and Number: All • Tuition payment, monitoring, and Public Affairs section at the U.S. supervision for students who begin programs correspondence with the Bureau Embassy for its review, with the goal of in Summer 2003 (who were selected by the concerning this RFGP should reference reducing the time it takes to get embassy incumbent grantee organization); the above title and the following comments for the Bureau’s grants • Testing, interviewing, and final selection number: ECA/A/E/EAP–2004–Vietnam– review process. of a cohort to begin programs in Summer 02. 2004 (who will have been recruited and FOR FURTHER INFORMATION, CONTACT: Diversity, Freedom and Democracy initially screened by the incumbent Mary Hanlon in the Office of Academic Guidelines organization); and Exchange Programs, ECA/A/E/EAP, Pursuant to the Bureau’s authorizing • Recruitment and screening for a cohort of students to begin in Summer 2005. Room 208, U.S. Department of State, legislation, programs must maintain a SA–44, 301 4th Street, SW., non-political character and should be The incumbent organization will be Washington, DC 20547; phone: 202– balanced and representative of the responsible for monitoring and 619–5406; fax: 202–401–1728; e-mail: diversity of American political, social, supervision during the second year of [email protected] to request a and cultural life. ‘‘Diversity’’ should be study for grantees who began programs Solicitation Package if you are unable to interpreted in the broadest sense and in Summer 2002. download it from the internet (see encompass differences including, but

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not limited to ethnicity, race, gender, for technical eligibility. Proposals will compliance with all reporting religion, geographic location, socio- be deemed ineligible if they do not fully requirements for past Bureau grants as economic status, and physical adhere to the guidelines stated herein determined by Bureau Grant Staff. The challenges. Applicants are strongly and in the Solicitation Package. Bureau will consider the past encouraged to adhere to the All eligible proposals will be performance of prior recipients and the advancement of this principle both in reviewed by the program office, as well demonstrated potential of new program administration and in program as the Public Diplomacy section applicants. content. Please refer to the review overseas where appropriate. Eligible 8. Follow-on Activities: Proposals criteria under the ‘‘Support for proposals will be subject to compliance should provide a plan for continued Diversity’’ section for specific with Federal and Bureau regulations follow-on activity (without Bureau suggestions on incorporating diversity and guidelines and forwarded to Bureau support) ensuring that Bureau into the total proposal. Public Law 104– grant panels for advisory review. supported programs are not isolated 319 provides that ‘‘in carrying out Proposals may also be reviewed by the events. programs of educational and cultural Office of the Legal Adviser or by other 9. Project Evaluation: Proposals exchange in countries whose people do Department elements. Final funding should include a plan to evaluate the not fully enjoy freedom and decisions are at the discretion of the activity’s success, both as it unfolds and democracy,’’ the Bureau ‘‘shall take Department of State’s Assistant at the end of the program. A draft survey appropriate steps to provide Secretary for Educational and Cultural questionnaire or other technique plus opportunities for participation in such Affairs. Final technical authority for description of a methodology to use to programs to human rights and grants or cooperative agreements resides link outcomes to original project democracy leaders of such countries.’’ with the Bureau’s Grants Officer. objectives is recommended. Successful Public Law 106–113 requires that the applicants will be expected to submit governments of the countries described Review Criteria intermediate reports after each project above do not have inappropriate Technically eligible applications will component is concluded or quarterly, influence in the selection process. be competitively reviewed according to whichever is less frequent. Proposals should reflect advancement of the criteria stated below. These criteria 10. Cost-effectiveness: The overhead these goals in their program contents, to are not rank ordered and all carry equal and administrative components of the the full extent deemed feasible. weight in the proposal evaluation: proposal, including salaries and 1. Quality of the program idea: honoraria, should be kept as low as Adherence to All Regulations Proposals should exhibit originality, possible. All other items should be Governing the J Visa substance, precision, and relevance to necessary and appropriate. The Bureau of Educational and the Bureau’s mission. 11. Cost-sharing: Proposals should Cultural Affairs is placing renewed 2. Program planning: Detailed agenda maximize cost-sharing through other emphasis on the secure and proper and relevant work plan should private sector support as well as administration of Exchange Visitor (J demonstrate substantive undertakings institutional direct funding visa) Programs and adherence by and logistical capacity. Agenda and plan contributions. grantees and sponsors to all regulations should adhere to the program overview Authority: Overall grant making governing the J visa. Therefore, and guidelines described above. authority for this program is contained proposals should demonstrate the 3. Ability to achieve program in the Mutual Educational and Cultural applicant’s capacity to meet all objectives: Objectives should be Exchange Act of 1961, Public Law 87– requirements governing the reasonable, feasible, and flexible. 256, as amended, also known as the administration of Exchange Visitor Proposals should clearly demonstrate Fulbright-Hays Act. The purpose of the Programs as set forth in 22 CFR 6Z, how the institution will meet the Act is ‘‘to enable the Government of the including the oversight of Responsible program’s objectives and plan. United States to increase mutual Officers and Alternate Responsible 4. Multiplier effect/impact: Proposed understanding between the people of Officers, screening and selection of programs should strengthen long-term the United States and the people of program participants, provision of pre- mutual understanding, including other countries * * *; to strengthen the arrival information and orientation to maximum sharing of information and ties which unite us with other nations participants, monitoring of participants, establishment of long-term institutional by demonstrating the educational and proper maintenance and security of and individual linkages. cultural interests, developments, and forms, record-keeping, reporting and 5. Support of Diversity: Proposals achievements of the people of the other requirements. The grantee should demonstrate substantive support United States and other nations * * * organization will be responsible for of the Bureau’s policy on diversity. and thus to assist in the development of issuing DS–2019 forms to participants Achievable and relevant features should friendly, sympathetic and peaceful in this program. be cited in both program administration relations between the United States and A copy of the complete regulations (selection of participants, program the other countries of the world.’’ The governing the administration of venue and program evaluation) and funding authority for the program above Exchange Visitor (J) programs is program content (orientation and wrap- is provided through legislation. available at http://exchanges.state.gov up sessions, program meetings, resource Notice: The terms and conditions or from: United States Department of materials and follow-up activities). published in this RFGP are binding and State, Office of Exchange Coordination 6. Institutional Capacity: Proposed may not be modified by any Bureau and Designation, ECA/EC/ECD–SA–44, personnel and institutional resources representative. Explanatory information Room 734, 301 4th Street, SW., should be adequate and appropriate to provided by the Bureau that contradicts Washington, DC 20547, Telephone: achieve the program or project’s goals. published language will not be binding. (202) 401–9810, FAX: (202) 401–9809. 7. Institution’s Record/Ability: Issuance of the RFGP does not Proposals should demonstrate an constitute an award commitment on the Review Process institutional record of successful part of the Government. The Bureau The Bureau will acknowledge receipt exchange programs, including reserves the right to reduce, revise, or of all proposals and will review them responsible fiscal management and full increase proposal budgets in accordance

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with the needs of the program and the reflagging of fishing vessels to evade OFFICE OF THE UNITED STATES availability of funds. Awards made will controls, fishing in areas of national TRADE REPRESENTATIVE be subject to periodic reporting and jurisdiction without authorization by evaluation requirements. the coastal State, and failure to report Notice of Proposed Measure and Notification: Final awards cannot be (or misreporting) catches. Such Opportunity for Public Comment made until funds have been irresponsible fishing activity directly Pursuant to Section 421 of the Trade appropriated by Congress, allocated and undermines efforts to manage fisheries Act of 1974: Certain Steel Wire Garment Hangers From the People’s committed through internal Bureau properly and impedes progress toward procedures. Republic of China the goal of sustainable fisheries. Dated: February 26, 2003. Under the auspices of the Food and AGENCY: Office of the United States C. Miller Crouch, Agriculture Organization of the United Trade Representative. Principal Deputy Assistant Secretary, Bureau Nations (FAO), a concerted effort was ACTION: Notice of proposed measure; of Educational and Cultural Affairs, request for comments. Department of State. undertaken to develop a comprehensive [FR Doc. 03–5008 Filed 3–5–03; 8:45 am] ‘‘toolbox’’ of measures that States could SUMMARY: The United States take, both individually and collectively, BILLING CODE 4710–05–P International Trade Commission (ITC) to address the problems of IUU fishing. has determined, pursuant to section This effort culminated with the 421(b)(1) of the Trade Act of 1974, as DEPARTMENT OF STATE adoption in 2001 of the FAO amended (the Trade Act) (19 U.S.C. International Plan of Action to Prevent, [Public Notice 4293] 2451(b)(1)), that certain steel wire Deter and Eliminate Illegal, Unreported garment hangers 1 from the People’s Bureau of Oceans and International and Unregulated Fishing (IPOA). Republic of China (China) are being Environmental and Scientific Affairs; As its title suggests, the objective of imported into the United States in such Notice of Availability of a Draft the IPOA is to prevent, deter and increased quantities or under such National Plan of Action To Prevent, eliminate IUU fishing. The principles to conditions as to cause market disruption Deter, and Eliminate Illegal, guide the pursuit of this objective to the domestic producers of like or Unregulated, and Unreported Fishing include: (1) Broad participation and directly competitive products. Pursuant to section 421(h)(1) of the Trade Act, the coordination among States, as well as SUMMARY: The Department of State United States Trade Representative representatives from industry, fishing announces the availability of a draft (USTR) is publishing notice of proposed National Plan of Action (NPOA) communities and non-governmental restrictions with respect to imports of developed pursuant to the International organizations; (2) the phasing-in of the subject steel wire garment hangers Plan of Action (IPOA) to Prevent, Deter, action to implement the IPOA on the from China. USTR invites domestic and Eliminate Illegal, Unregulated, and earliest possible timetable; (3) the use of producers, importers, exporters, and Unreported Fishing, adopted by the a comprehensive and integrated other interested parties to submit their United Nations Food and Agriculture approach, so as to address all impacts of views and evidence on the Organization (FAO) Committee on IUU fishing; (4) the maintenance of appropriateness of the proposed Fisheries (COFI) Ministerial Meeting in consistency with the conservation and restrictions and whether they would be February 2001. Members of the public long-term sustainable use of fish stocks in the public interest. USTR also invites are encouraged to provide comments on and the protection of the environment; interested parties to participate in a the draft NPOA. (5) transparency; and (6) non- public hearing (if requested). DATES: Comments must be received no discrimination in form or in fact against DATES: Requests for USTR to hold a later than May 31, 2003. any State or its fishing vessels. public hearing are due by March 18, ADDRESSES: Written comments and The draft U.S. National Plan of Action 2003. Written comments and requests to requests for copies of the draft NPOA is organized along the same lines as the testify at any public hearing are due by should be submitted to Deirdre Warner- March 20, 2003. If a request for USTR Kramer, Office of Marine Conservation IPOA, including sections on All State Responsibilities, Flag State (OES/OMC), Bureau of Oceans, and 1 For purposes of its investigation, the ITC International Environmental and Responsibilities, Coastal State Measures, considered certain steel wire garment hangers to Scientific Affairs, Department of State, Port State Measures, Internationally consist of garment hangers, fabricated from steel Washington, DC 20520–7818, or may be Agreed Market State Measures, wire in gauges from 9 to 17, inclusive (3.77 to 1.37 Measures to be Implemented Through millimeters, inclusive), whether or not galvanized sent via facsimile (fax) to 202–736– or painted, whether or not coated with latex or 7350. An electronic version of the draft Regional Fisheries Management epoxy or other similar gripping materials, and is available at http://www.state.gov/g/ Organizations and Special Requirements whether or not fashioned with paper covers or oes/ocns/c7983.htm Comments will not of Developing States. As envisioned in capes (with or without printing) and/or nonslip features such as saddles, tubes, or struts. After be accepted if submitted via e-mail. the IPOA, the United States intends to fabrication, such hangers are in lengths from 7 to FOR FURTHER INFORMATION CONTACT: review the implementation of this 20 inches, inclusive (177.8 to 508 millimeters, Deirdre Warner-Kramer at 202–647– National Plan of Action at least every inclusive), and the hanger’s length or bottom bar is composed of steel wire and/or saddles, tubes, or 2335, fax 202–736–7350. four years after its adoption. struts. The product may also be identified by its SUPPLEMENTARY INFORMATION: The Dated: February 27, 2003. commercial designation, referring to the shape and/ United States and other members of the or style of the hanger or the garment for which it Margaret F. Hayes, is intended, including but not limited to Shirt, Suit, international community have Strut, and Caped hangers. Specifically excluded are experienced a growing incidence of Acting Deputy Assistant Secretary for Oceans and Fisheries, Department of State. wooden, plastic, aluminum, and other garment fishing activity that does not respect hangers that are covered under separate applicable laws and regulations, [FR Doc. 03–5287 Filed 3–5–03; 8:45 am] subheadings of the Harmonized Tariff System of the BILLING CODE 4710–09–P United States (HTS). The products subject to the including fishing rules adopted at the investigation are classified in subheading national and international levels. 7326.20.00 of the HTS and reported under Examples of such activity include statistical reporting number 7326.20.0020.

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to hold a public hearing is received, the harm to the national security of the have submitted comments and/or hearing will be held on April 1, 2003. United States. (Section 421(k)) Prior to requested to testify at any public ADDRESSES: Submissions by electronic making a recommendation, USTR is hearing will be informed if a hearing is mail: [email protected]; Submissionsse required to publish notice of any to be held. In addition, information on 3581 by facsimile: Sandy McKinzy, proposed measures and of the any public hearing may be obtained by USTR, at (202) 395–9672. opportunity to comment. contacting Sandy McKinzy at (202) 395– 9483. If a public hearing is requested, it FOR FURTHER INFORMATION CONTACT: For 2. Proposed Measure and Opportunity will be held on April 1, 2003, at 9:30 procedural questions concerning public for Comment comments and holding of a public a.m. in Rooms 1 and 2, 1724 F Street, The ITC recommended that the NW., Washington, D.C. Requests to hearing, contact Sandy McKinzy, USTR, President impose a duty, in addition to telephone (202) 395–9483, facsimile testify must include the following the current rate of duty, for a three-year information: (1) Name, address, (202) 395–9672. Other questions should period on imports of the subject steel be addressed to Terrence J. McCartin, telephone number, fax number, and firm wire garment hangers from China, as or affiliation of the person wishing to Office of North Asian Affairs, USTR, follows: 25 percent ad valorem in the telephone (202) 395–3900, or David L. testify; and (2) a brief summary of the first year, 20 percent ad valorem in the comments to be presented. Weller, Office of General Counsel, second year, and 15 percent ad valorem USTR, telephone (202) 395–3581. in the third year. The ITC further 3. Requirements for Submissions SUPPLEMENTARY INFORMATION: recommended that, if applications are In order to facilitate prompt 1. The ITC Investigation and Section filed, the President direct the U.S. processing of submissions, USTR 421 Department of Commerce and the U.S. strongly urges and prefers electronic (e- Department of Labor to provide mail) submissions in response to this Following receipt of a petition filed expedited consideration of trade notice. on November 27, 2002, on behalf of adjustment assistance for firms and/or Persons making submissions by e- CHC Industries, Inc., M&B Metal workers affected by the subject imports. mail should use the following subject Products Co., Inc., and United Wire (68 FR 8926) USTR proposes this line: ‘‘Wire Hangers’’ followed by (as Hanger Corp., the ITC instituted remedy for further consideration by appropriate) ‘‘Written Comments’’, investigation No. TA–421–2, under domestic producers, importers, ‘‘Request for Public Hearing’’, or section 421 of the Trade Act (19 U.S.C. exporters, and other interested parties, ‘‘Request to Testify’’. Documents should 2451) to determine whether the subject and invites any of these parties to be submitted as either WordPerfect, steel wire garment hangers from China submit their views and evidence on the MSWord, or text (.TXT) files. are being imported into the United appropriateness of the proposed remedy Supporting documentation submitted as States in such increased quantities or and whether it would be in the public spreadsheets are acceptable as Quattro under such conditions as to cause or interest. In addition, USTR invites Pro or Excel. For any document threaten to cause market disruption to comments on other possible actions, containing business confidential the domestic producers of like or including: imposition of an additional information submitted electronically, directly competitive products. The ITC duty on imports of the subject steel wire the file name of the business made an affirmative determination on garment hangers from China, at a rate confidential version should begin with January 27, 2003, and transmitted a and/or for a period different from the the characters ‘‘BC–’’, and the file name report on its determination, as well as ITC recommendation; imposition of a of the public version should begin with its remedy proposals, to USTR on tariff-rate quota on the subject imports the characters ‘‘P–’’. The ‘‘P–’’ or ‘‘BC– February 14, 2003. The views of the ITC, from China; imposition of a quota on the ’’ should be followed by the name of the including its remedy proposals, are subject imports from China; an import submitter. Persons who make available on the ITC’s Web site (http:// monitoring mechanism; or no import submissions by e-mail should not www.usitc.gov/7ops/ relief (pursuant to a determination provide separate cover letters; chinasafeguard.htm) and are contained under Section 421(k) of the Trade Act information that might appear in a cover in USITC Publication 3575 (February regarding the national economic interest letter should be included in the 2003), entitled ‘‘Certain Steel Wire or national security). In commenting on submission itself. To the extent Garment Hangers from China: possible actions, interested parties are possible, any attachments to the Investigation No. TA–421–2’’. A copy of requested to address: (i) The short- and submission should be included in the that publication, which also includes long-term effects that implementation of same file as the submission itself, and the ITC staff report, can be obtained the proposed action is likely to have on not as separate files. from the ITC by faxing a request to (202) the domestic steel wire garment hanger Written comments submitted in 205–2104 or calling (202) 205–1809. industry, other domestic industries, and response to this request will be placed Following an affirmative downstream consumers, and (ii) the in a file open to public inspection determination by the ITC, and pursuant short- and long-term effects that not pursuant to 15 CFR 2003.5, except to Section 421(h) of the Trade Act, taking the proposed action is likely to business confidential information USTR is required to make a have on the domestic steel wire garment exempt from public inspection in recommendation to the President hanger industry, its workers, and on accordance with 15 CFR 2003.6. concerning what action, if any, to take other domestic industries or Business confidential information to remedy the market disruption. Within communities. submitted in accordance with 15 CFR 15 days after receipt of USTR’s An interested party may request that 2003.6 must be clearly marked recommendation, the President is USTR hold a public hearing, which ‘‘BUSINESS CONFIDENTIAL’’ at the top required to provide import relief unless request must be received by March 18, of each page, including any cover letter the President determines that provision 2003. Written comments, as well as or cover page, and must be accompanied of such relief is not in the national requests to testify at any public hearing, by a nonconfidential summary of the economic interest of the United States must be received by March 20, 2003, confidential information. All public or, in extraordinary cases, that the and should be submitted in accordance documents and nonconfidential taking of action would cause serious with the instructions below. Parties that summaries shall be available for public

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inspection in the USTR Reading Room. the address above, or by fax to (202) With respect to the claims of WTO- The USTR Reading Room is open to the 395–3640, in accordance with the inconsistency, Mexico’s request for public, by appointment only, from 10 requirements for submission set out consultations refers to the following: a.m. to 12 noon and 1 p.m. to 4 p.m., below. • With regard to the sunset review conducted by Commerce: Monday through Friday. An FOR FURTHER INFORMATION CONTACT: • Commerce’s misapplication of the appointment to review the file must be William D. Hunter, Associate General standard of ‘‘would likely be to lead to’’; scheduled at least 48 hours in advance Counsel, Office of the United States and and may be made by calling (202) 395– Trade Representative, 600 17th Street, • Commerce’s reliance on a 6186. NW., Washington, DC, (202) 395–3582. presumption in favor of maintaining the Wendy S. Cutler, SUPPLEMENTARY INFORMATION: Section anti-dumping measures. Assistant United States Trade Representative, 127(b) of the Urugary Round • With regard to the sunset review Office of North Asian Affairs. Agreements Act (‘‘URAA’’) (19 U.S.C. conducted by the ITC: [FR Doc. 03–5329 Filed 3–5–03; 8:45 am] 3537(b)(1) requires that notice and • The ITC’s misapplication of the BILLING CODE 3190–01–P opportunity for comment be provided ‘‘would be likely to lead to ’’ principle; after the United States submit or • The ITC’s failure to conduct an receives a request for the establishment ‘‘objective examination’’ of the record OFFICE OF THE UNITED TRADE of a WTO dispute settlement panel. based on ‘‘positive evidence’’; REPRESENTATIVE Consistent with this obligation, but in • The ITC’s failure to base its [Docket No. WTO/DS–282] an effort to provide additional determination of injury on the ‘‘effects opportunity for comment, USTR is of dumping’’ on the domestic industry WTO Dispute Settlement Proceeding providing notice that consultations have and to consider whether injury was Regarding Antidumping Measures on been requested pursuant to the WTO caused by ‘‘any known factors other Oil Country Tubular Goods From Dispute Settlement Understanding than the dumped imports’’; Mexico (‘‘DSU’’). If such consultations should • The ITC’s cumulative assessment of fail to resolve the matter and a dispute injury; and AGENCY: Office of the United States settlement panel is established pursuant • The standards requiring that the Trade Representative. to the DSU, such panel, which would ITC determine whether injury would be ACTION: Notice; request for comments. hold its meetings in Geneva, likely to continue or recur ‘‘within a Switzerland, would be expected to issue reasonable foreseeable time’’ and that SUMMARY: The Office of the United States Trade Representatives (‘‘USTR’’) a report on its findings and the ITC ‘‘shall consider that the effects is providing notice that on February 18, recommendations within six to nine of revocation or termination may not be 2003, the United States received from months after it is established. imminent, but may manifest themselves over a longer period of time’’, both per Mexico a request for consultations Major Issues Raised by Mexico under the Marrakesh Agreement se and applied. With respect to the measures at issue, • With regard to the fourth Establishing the World Trade Mexico’s request for consultations refers administrative review: Organization (‘‘WTO Agreement’’) to the following: • Commerce’s determination not to regarding various measures relating to • The final sunset review revoke the antidumping order; the antidumping duty order on oil determinations on OCTG from Mexico • Commerce’s retroactive application country tubular goods (‘‘OCTG’’) from by the U.S. Department of Commerce of new requirements for revocation; and Mexico. Mexico alleges that (‘‘Commerce’’) (66 FR 14131 (March 9, • Commerce’s use of the practice determinations made by U.S. authorities 2001), and the U.S. International Trade known as ‘‘zeroing’’ for negative concerning this product, and certain Commission (‘‘ITC’’) (66 FR 35997 (July dumping margins. related matters, are inconsistent with 10, 2001)), as well as the resulting Mexico also alleges that the U.S. Articles 1, 2, 3, 6, 11, and 18 of the continuation by Commerce of the statutory, regulatory and administrative Agreement on Implementation of Article antidumping duty order on OCTG from provisions it cites require Commerce VI of the General Agreement on Tariffs Mexico (66 FR 38630 (July 25, 2001); and the ITC to act inconsistently with and Trade 1994 (‘‘AD Agreement’’), • The final results of the fourth Articles 1, 2, 11 and 18 of the AD Articles VI and X of the General administrative review by Committee of Agreement and Article VI of the GATT Agreement on Tariffs and Trade 1994 the antidumping duty order on OCTG 1994, thereby rendering the U.S. (‘‘GATT 1994’’), and Article XVI:4 of the from Mexico, such review covering the provisions inconsistent per se with WTO Agreement. USTR invites written time period from August 1, 1998 to July those articles, as well as with Article comments from the public concerning 31, 1999 (66 FR 15832 (March 21, 18.4 of the AD Agreement and Article the issues raised in this dispute. 20010); XVI:4 of the WTO Agreement. In DATES: Although USTR will accept any • Sections 751 and 752 of the Tariff addition, Mexico alleges that its claims, comments received during the course of Act of 1930; viewed cumulatively, establish a the dispute settlement proceedings, • The URAA Statement of violation of Article 11.1 of the AD comments should be submitted on or Administrative Action; Agreement and Article VI and Article before April 25, 2003, to be assured of • Commerce’s Sunset Policy Bulletin X:3(a) of the GATT 1994. timely consideration by USTR. (63 FR 18871 (April 16, 1998)); ADDRESSES: Comments should be • Commence’s sunset review Requirements for Submissions submitted (i) electronically, to regulations, 19 CFR 351.218; Interested persons are invited to [email protected], or (ii) by mail, to • The ITC’s sunset review submit written comments concerning Sandy McKinzy, Office of the United regulations, 19 CFR 207.60–69; and the issues raised in this dispute. Persons States Trade Representative, 600 17th • Portions of Commerce’s regulations submitting comments may either send Street, NW., Washington, DC 20508, concerning administrative reviews, one copy by U.S. mail, first class, Attn: Mexico OCTG Dispute, with a including 19 CFR 351.213, 351.221, and postage prepaid, to Sandy McKinzy at confirmation copy sent electronically to 351.222. the address listed above, or transmit a

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copy electronically to [email protected], DS–282, Mexico OCTG Dispute) may be requirements for submission set out with ‘‘Mexico OCTG Dispute’’ in the made by calling the USTR Reading below. subject line. For documents sent by U.S. Room at (202) 395–6186. The USTR FOR FURTHER INFORMATION CONTACT: mail, USTR requests that the submitter Reading Room is open to the public William D. Hunter, Associate General provide a confirmation copy, either from 9:30 a.m. to 12 noon and 1 p.m. Counsel, Office of the United States electronically, to the electronic mail to 4 p.m., Monday through Friday. Trade Representative, 600 17th Street, address listed above, or by fax to (202) NW., Washington, DC (202) 395–3582. 395–3640. USTR encourages the Daniel E. Brinza, SUPPLEMENTARY INFORMATION: submission of documents in Adobe PDF Assistant United States Trade Representative Section format, as attachments to an electronic for Monitoring and Enforcement. 127(b) of the Uruguay Round mail. Interested persons who make [FR Doc. 03–5330 Filed 3–5–03; 8:45 am] Agreements Act (‘‘URAA’’) (19 U.S.C. submissions by electronic mail should BILLING CODE 3190–01–M 3537(b)(1)) requires that notice and not provide separate cover letters; opportunity for comment be provided information that might appear in a cover after the United States submits or letter should be included in the OFFICE OF THE UNITED STATES receives a request for the establishment submission itself. Similarly, to the TRADE REPRESENTATIVE of a WTO dispute settlement panel. extent possible, any attachments to the Consistent with this obligation, but in submission should be included in the [Docket No. WTO/DS–281] an effort to provide additional opportunity for comment, USTR is same file as the submission itself and WTO Dispute Settlement Proceeding not as separate files. Comments must be providing notice that consultations have Regarding Antidumping Measures on been requested pursuant to the WTO in English. A person requesting that Cement From Mexico information contained in a comment Dispute Settlement Understanding submitted by that person be treated as AGENCY: Office of the United States (‘‘DSU’’). If such consultations should confidential business information must Trade Representative. fail to resolve the matter and a dispute settlement panel is established pursuant certify that such information is business ACTION: Notice; request for comments. confidential and would not customarily to the DSU, such panel, which would be released to the public by the SUMMARY: The Office of the United hold its meeting in Geneva, submitting person. Confidential States Trade Representative (‘‘USTR’’) is Switzerland, would be expected to issue business information must be clearly providing notice that on January 31, a report on its findings and marked ‘‘BUSINESS CONFIDENTIAL’’ 2003, the United States received from recommendations within six to nine in a contrasting color ink at the top of Mexico a request for consultations months after it is established. each page of each copy. under the Marrakesh Agreement Major Issues Raised by Mexico Information or advice contained in a Establishing the World Trade comment submitted, other than business Organization (‘‘WTO Agreement’’) With respect to the measures at issue, confidential information, may be regarding various measures relating to Mexico’s request for consultations refers determined by USTR to be confidential the antidumping duty order on gray to the following: • The final results of the fifth through in accordance with section 135(g)(2) of portland cement and cement clinker eleventh administrative reviews of the the Trade Act of 1974 (19 U.S.C. (‘‘cement’’) from Mexico. Mexico alleges antidumping duty order on cement from 2155(g)(2)). If the submitting person that determinations made by U.S. Mexico, such reviews collectively believes that information or advice may authorities concerning this product, and covering the time period from August 1, qualify as such, the submitting person— certain related matters, are inconsistent 1994 to July 31, 2001. These final (1) Must so designate the information with Articles 1, 2, 3, 4, 6, 8, 9, 10, 11, results, which were made by the U.S. or advice; 12 and 18 of the Agreement on Department of Commerce (‘‘Commerce’’) (2) Must clearly mark the material as Implementation of Article VI of the are published at 62 FR 17148 (April 9, ‘‘SUBMITTED IN CONFIDENCE’’ in a General Agreements on Tariffs and 1997); 63 FR 12764 (March 16, 1998); 64 contrasting color ink at the top of each Trade 1994 (‘‘AD Agreement’’), Articles FR 13148 (March 17, 1999); 65 FR 13943 page of each copy; and III, VI and X of the General Agreement (3) Is encouraged to provide a non- (March 15, 2000); 66 FR 14889 (March on Tariffs and Trade 1994 (‘‘GATT confidential summary of the 14, 2001; 67 FR 12518 (March 19, 2002); 1994’’), and Article XVI:4 of the WTO information or advice. and 67 FR 12518 (January 14, 2003); Agreement. USTR invites written Pursuant to section 127(e) of the • The final sunset review comments from the public concerning URAA (19 U.S.C. 3537(e)), USTR will determinations on cement from Mexico the issues raised in this dispute. maintain a file on this dispute by Commerce (65 FR 41049 (July 3, settlement proceeding, accessible to the DATES: Although USTR will accept any 2000)), and the U.S. International Trade public, in the USTR Reading Room, comments received during the course of Commission (‘‘ITC’’) (USITC Publication which is located at 1724 F Street, NW., the dispute settlement proceedings, No. 3361 (October 2000) and 65 FR Washington, DC 20508. The public file comments should be submitted on or 65327 (November 1, 2000)), as well as will include non-confidential comments before March 28, 2003, to be assured of the resulting continuation by Commerce received by USTR from the public with timely consideration by USTR. of the antidumping duty order on respect to the dispute; if a dispute ADDRESSES: Comments should be cement from Mexico (65 FR 68979 settlement panel is convened, the U.S. submitted (i) electronically, to (November 15, 2000)); submissions to that panel, the [email protected], or (ii) by mail, to • The dismissal by the ITC of a submissions, or non-confidential Sandy McKinzy, Office of the United request for the institution of a changed summaries of submissions, to the panel States Trade Representative, 600 17th circumstances review of the received from other participants in the Street, NW., Washington, DC 20508, antidumping duty order on cement from dispute, as well as the report of the Attn: Mexico Cement Dispute, with a Mexico (66 FR 65740 (December 20, panel; and, if applicable, the report of confirmation copy sent electronically to 2001)); the Appellate Body. An appointment to the address above, or by fax to (202) • Sections 736, 737, 751, 752 and 778 review the public file (Dock No. WT/ 395–3640, in accordance with the of the Tariff Act of 1930;

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• The URAA Statement of need for a changed circumstances • The application of a rate of Administrative Action, H.R. Doc. No. review and its failure to initiate such a antidumping duty that is sometimes 103–316, vol. 1 (1994); review; higher than the rate applicable at the • Commerce’s Sunset Policy Bulletin • The ITC’s failure to initiate a time of entry; and (63 FR 18871 (April 16, 1998)); changed circumstances review to ensure • The collection of interest payments • Commerce’s sunset review that the antidumping duty order only over and above the amount of the regulations, 19 CFR § 351.218; applied to a regional industry in applicable antidumping margin. • The ITC’s sunset review exceptional circumstances; and. • The application of Section 129(c)(1) regulations, 19 CFR §§ 207.60–69; and • The ITC’s failure to disclose the of the URAA to currently unpaid • Portions of Commerce’s regulations necessary evidence for and adequately amounts in respect of cement from governing the calculation of dumping substantiate its decision. Mexico. margins, 19 CFR §§ 351.102, 351.212(f), • With regard to the administrative Mexico also alleges that the claims 351.213(j), 351.403, and 351.414(c)(2). reviews: described above reveal that the U.S. With respect to the claims of WTO- • Commerce’s improper exclusion of antidumping measures in question inconsistency, Mexico’s request for domestic sales of identical Type II and resulted in less favorable treatment consultations refers to the following: being accorded to Mexican cement than • Type V LA cement; With regard to the sunset review • Commerce’s comparison of sales of to the U.S. like product in a manner conducted by Commerce: inconsistent with Article III.4 of the • bagged cement with sales of cement in Commerce’s misapplication of the bulk; GATT 1994. In addition, Mexico alleges standard of ‘‘would be likely to lead to’’; • Commerce’s failure to make a ‘‘fair that these claims, viewed cumulatively, • The basis of Commerce’s comparison’’ on the basis of weighted establish a violation of Article X:3(a) of determination of the likelihood of average values, and its failure to make the GATT 1994 and Articles 1 and 18 dumping; of the AD Agreement • Commerce’s failure to disclose the the required determinations regarding ‘‘essential facts under consideration the use of alternative methodologies; Requirements for Submissions • Commerce’s use of the practice which form the basis for the decision’’; Interested persons are invited to • U.S. laws, regulations and known as ‘‘zeroing’’ for negative dumping margins; submit written comments concerning procedures relating to duty absorption, • the issues raised in this dispute. Persons both per se and as applied; and The levying of antidumping duties • on the products consigned outside the submitting comments may either send Commerce’s reliance on a one copy by U.S. mail, first class, presumption in favor of maintaining the area defined in the seventh to tenth administrative reviews; postage prepaid, to Sandy McKinzy at anti-dumping measures. • the address listed above, or transmit a • With regard to the sunset review Commerce’s use of an ‘‘arm’s length’’ review to determine whether copy electronically to [email protected], conducted by the ITC: with ‘‘Mexico Cement Dispute’’ in the • The ITC’s misapplication of the sales to related customers were ‘‘in the subject line. For documents sent by U.S. ‘‘would be likely to lead to’’ principle; ordinary course of trade’’; • The ITC’s failure to compile • Commerce’s request that the mail, USTR requests that the submitter sufficient information on the existence Mexican respondent parties report provide a confirmation copy, either of either a domestic industry or regional downstream sales by affiliated to electronically, to the electronic mail industries; unaffiliated customers, and Commerce’s address listed above, or by fax to (202) • The ITC’s determination to the calculation of dumping margins on the 395–3640. USTR encourages the effect that ‘‘all or almost all’’ U.S. basis of these downstream sales; submission of documents in Adobe PDF producers from the southern United • Commerce’s failure to take account format, as attachments to an electronic States would suffer material injury in of cost-related evidence in the record in mail. Interested persons who make the event of the antidumping duty order relation to differences in merchandise submissions by electronic mail should being revoked; which affected price comparability, and not provide separate cover letters; • The ITC’s failure to conduct an its application of the ‘‘facts available’’ information that might appear in a cover ‘‘objective examination’’ of the record when making difference in merchandise letter should be included in the based on ‘‘positive evidence’’; adjustments; submission itself. Similarly, to the • The ITC’s failure to base its • Commerce’s failure to deduct extent possible, any attachments to the determination of injury on the ‘‘effects certain pre-sale warehousing costs; submission should be included in the of dumping’’ on the domestic industry • Commerce’s determination to same file as the submission itself, and and to consider whether injury was ‘‘amalgamate’’ two Mexican companies not as separate files. Comments must be caused by ‘‘any known factors other and to calculate a single weighted in English. A person requesting that than the dumped imports’’; and average margin and establish a single information contained in a comment • The statutory requirements that the importer-specific rate applicable to both submitted by that person be treated as ITC determine whether injury would be companies; and confidential business information must likely to continue or recur ‘‘within a • The imposition by Commerce of an certify that such information is business reasonably foreseeable time’’ and that unreasonable burden of proof on the confidential and would not customarily the ITC ‘‘shall consider that the effects Mexican respondent parties in the be released to the public by the of revocation or termination may not be determination of duty absorption. submitting person. Confidential imminent, but may manifest themselves • Commerce’s failure to establish that business information must be clearly only over a longer period of time’’, both there was adequate support from the marked ‘‘BUSINESS CONFIDENTIAL’’ per se and as applied. regional industry for continued in a contrasting color ink at the top of • With regard to the ITC’s imposition of the antidumping duty. each page of each copy. determination to reject the request of the • With regard to the U.S. Information or advice contained in a Mexican producers for the initiation of retrospective duty assessment system: comment submitted, other than business a changed circumstances review: • The failure to notify importers of confidential information, may be • The ITC’s failure to consider the the application of final or definitive determined by USTR to be confidential positive evidence which justified the anti-dumping duties; in accordance with section 135(g)(2) of

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the Trade Act of 1974 (19 U.S.C. agreed to six conditions that would 41712 in light of the express direction 2155(g)(2)). If the submitting person limit the likelihood of competitive of the statute that we consider the believes that information or advice may harm. The three airlines have accepted public policy factors set forth in 49 qualify as such, the submitting person— three of the six conditions and, after U.S.C. 40101. At the conclusion of the (1) Must so designate the information consultations with the Department, have proceeding, we could issue an order or advice; proposed alternative language for the directing the parties to cease and desist (2) Must clearly mark the material as remaining three conditions. The from practices found to be anti- ‘‘SUBMITTED IN CONFIDENCE’’ in a Department is inviting interested competitive. contrasting color ink at the top of each persons to submit comments on whether Following the original submission of page of each copy; and the airlines’ proposed alternative the agreements, we invited interested (3) Is encouraged to provide a non- language adequately addresses the persons to submit comments. We confidential summary of the competitive concerns relating to those required the Alliance Carriers to make information or advice. three conditions. available to interested parties Pursuant to section 127(e) of the Any comments should be submitted unredacted copies of their alliance URAA (19 U.S.C. 3537(e)), USTR will by March 18, 2003. agreements. 67 FR 69804, November 19, maintain a file on this dispute ADDRESSES: Comments must be filed 2002. We reviewed the comments, settlement proceeding, accessible to the with Randall Bennett, Director, Office of material obtained by us from the three public, in the USTR Reading Room, Aviation Analysis, Room 6401, U.S. airlines, and other data in our which is located at 1724 F Street, NW., Department of Transportation, 400 7th possession. We met with the Alliance Washington, DC 20508. The public file St., SW., Washington, DC 20590. Late Carriers and with parties opposed to will include non-confidential comments filed comments will be considered to their proposed alliance. After analyzing received by USTR from the public with the extent possible. To facilitate the agreements and conducting an respect to the dispute; if a dispute consideration of comments, each extensive informal investigation, we settlement panel is convened, the U.S. commenter should file three copies of determined that the agreements, if submissions to that panel, the its comments. implemented as presented by the three submissions, or non-confidential airlines, could result in significant FOR FURTHER INFORMATION CONTACT: summaries of submissions, to the panel adverse impacts on airline competition Thomas Ray, Office of the General received from other participants in the unless the airlines accepted six Counsel, 400 Seventh St., SW., dispute, as well as the report of the conditions developed by us to limit Washington, DC 20590, (202) 366–4731. panel; and, if applicable, the report of potential competitive harm. We stated the Appellate Body. An appointment to SUPPLEMENTARY INFORMATION: On August that we would direct our Aviation review the public file (Docket No. WT/ 23, Delta, Northwest, and Continental Enforcement Office to institute a formal DS–281, Mexico Cement Dispute) may (‘‘the Alliance Carriers’’) submitted enforcement proceeding regarding the be made by calling the USTR Reading codeshare and frequent-flyer program matter if the Alliance Carriers chose to Room at (202) 395–6186. The USTR reciprocity agreements to us for review. implement the agreements without Reading Room is open to the public Their proposed alliance would be a accepting those conditions. 68 FR 3293, from 9:30 a.m. to 12 noon and 1 p.m. comprehensive marketing arrangement January 23, 2003 (‘‘the January Notice’’). to 4 p.m., Monday through Friday. that would involve code-sharing, As described more fully in the frequent flyer reciprocity, and reciprocal January Notice, we had the following Daniel E. Brinza, access to airport lounges. Their alliance concerns with the alliance: It would Assistant United States Trade Representative agreement would have a ten-year term. create a potential for collusion among for Monitoring and Enforcement. See 68 FR 3293, 3295, January 23, 2003. the three partners; it could enable the [FR Doc. 03–5331 Filed 3–5–03; 8:45 am] The Alliance Carriers submitted their Alliance Carriers to take advantage of BILLING CODE 3190–01–M agreements under 49 U.S.C. 41720, their combined dominant market which requires certain kinds of joint presence in a number of cities in ways venture agreements among major U.S. that could force unaffiliated airlines to DEPARTMENT OF TRANSPORTATION passenger airlines to be submitted to us exit the markets and deter entry by other at least thirty days before they can be airlines; it would establish joint Office of the Secretary implemented. We may extend the marketing efforts that could reduce waiting period by 150 days with respect competition between the partners and Review Under 49 U.S.C. 41720 of Delta/ to a code-sharing agreement and by preclude effective competition from Northwest/Continental Agreements sixty days for other types of agreements. unaffiliated airlines; it could lead to a AGENCY: Office of the Secretary, At the end of the waiting period (either ‘‘hoarding’’ of airport facilities; and it Department of Transportation. the thirty-day period or any extended could result in ‘‘screen clutter,’’ causing ACTION: Notice requesting comments. period established by us), the parties the services of competing carriers to be may implement their agreement. The downgraded in the displays offered to SUMMARY: Delta Air Lines, Northwest statute does not expressly require the travel agents by computer reservations Airlines, and Continental Airlines have parties to obtain our approval before systems (‘‘CRSs’’). 68 FR 3295–3297. We resubmitted their codeshare and proceeding, and, to block the developed six conditions in an attempt frequent-flyer program reciprocity implementation of an agreement, we to address these concerns. The January agreements to the Department for would normally institute a formal Notice set forth the text of these review. The three airlines originally enforcement proceeding under 49 U.S.C. conditions. 68 FR 3297–3299. submitted those agreements for review 41712 (formerly section 411 of the The Department of Justice, pursuant under 49 U.S.C. 41720 on August 23, Federal Aviation Act) to determine to its separate and independent 2002. The Department determined that whether the agreement’s authority to enforce the antitrust laws, the agreements, if implemented as implementation would be an unfair or reviewed the alliance agreements and presented by the three airlines, could deceptive practice or unfair method of determined that it would not challenge result in significant adverse impacts on competition that would violate that the implementation of the agreements airline competition unless the airlines section. We interpret and apply section under the antitrust laws if the Alliance

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Carriers accepted certain conditions, Delta subleases such gates; provided however Carriers shall maintain the above percentages primarily concerning pricing and code- that if the lessor is also an Alliance Carrier, with respect to 5,200 codeshare flights (in sharing. The three airlines have that lessor shall release the gate to the airport this case, 18% Category I flights 7 and 27% accepted those conditions. sponsor. Additionally, if during the term of Category II flights) for the duration of the The Alliance Carriers initially stated the Marketing Agreement the Alliance Marketing Agreement. In the event the Carriers choose to co-locate gates at any of carriers desire to add additional Domestic, their intent to proceed to implement their other hub airports 4 or BOS, or to further Canadian, and Caribbean codeshare flights their alliance without accepting our co-locate at any of the above hub airports after Year Two, the carriers shall provide the conditions. Subsequently, however, where the Alliance Carriers have agreed to Department with at least 180 days advance they asked us to consider alternatives release gates, the relocating carrier will notice and with such information as the for three of our six conditions. They are promptly notify the Department of such co- Department shall request with respect to proposing alternatives to those three location and the relocating carrier will such additional codeshare services. conditions after having consultations release to the airport sponsor upon its request 4. Joint Corporate and Travel Agency with us. On February 28 they the same number of gates and related Contracts: If the Alliance Carriers wish to facilities as the number to which it relocates offer joint bids to corporations or travel resubmitted the agreements for our following such co-location move (or, in the agencies, the corporation or travel agency review with their proposed alternative case of leased gates from another airline, the shall be given the option of dealing with each conditions. They request that we relocating carrier will return the gates to the Alliance Carrier separately or of receiving a complete our review within thirty days. lessor, and, if the lessor is also an Alliance joint bid from two or more of the Alliance While they acknowledge our legal Carrier, that lessor shall release the gate to Carriers. Only after the corporation or travel authority under section 41712 to impose the airport sponsor), provided the airport agency has requested a joint bid in writing conditions, they assert that they sponsor or airline lessor assumes shall such a bid be developed and submitted. consider that neither these conditions responsibility of any existing subleases. No In addition, following the date of this Alliance Carrier shall be required to release agreement the Alliance Carriers shall not nor the conditions required by the a leased gate (or related facilities) pursuant offer a joint bid for domestic travel, or for a Department of Justice are necessary to to this condition if it will be required to combination of domestic travel linked with protect competition. continue to pay rentals, charges or any other international travel, to any corporation or The Alliance Carriers assert that they lease obligations related thereto. For the travel agency that at the time of the bid has accept, without change, our first, fifth, purposes of this condition ‘‘co-locate’’ shall a principal place of business or headquarters and sixth conditions, which involve the mean a move of the flight operations from in a city 8 listed in Exhibit A, except that a alliance’s steering committee, CRS one Alliance Carrier’s gate(s) to another joint bid may be submitted to such displays, and the agreements’ Alliance Carrier’s gate(s), or to a gate or gates corporation or travel agency for travel exclusivity provision. They are adjacent to the latter carrier’s gates. originating from cities other than their 3. Codesharing: Domestic, Canadian, and principal place of business or headquarters requesting changes in the second, third, Caribbean codesharing between Delta and city. The list of cities in Exhibit A will be and fourth conditions, which involve Continental and between Delta and revised every three years during the term of airport facilities, limits on code-sharing Northwest shall be limited to 650 flights per the Marketing Agreement beginning August flights, and joint marketing. Their two-carrier combination for a total of 2,600 2006 to include only cities where all three requested alternative language for the flights during the first year following the carriers (themselves or through regional three conditions is as follows: commencement of codeshare operations affiliates) operate scheduled service and their (‘‘Year One’’). In Year One, not less than 25% combined market share 9 exceeds 50%, based 2. Airport Facilities: The Alliance Carriers of each marketing carrier’s new codeshare on schedules published in the Official agree that due to co-location the following flights must be to or from airports that Airline Guide for the August of that year. In gates, along with related facilities (including neither the carrier nor its regional affiliates any joint bid, the Alliance Carriers shall not overnight positions), shall be released at the directly served or served with no more than make the contractual discounted fares or time of co-location to the airport sponsor three daily roundtrip flights as of August commissions dependent on satisfaction of upon its request for lease to domestic non- 2002 (‘‘Category I flights’’). Also in Year One, minimum purchase or booking requirements, Alliance Carriers or for common use: (a) Four an additional 35% of each marketing carrier’s whether based on threshold or percentage, gates at IAH, (b) two gates at DTW, (c) five new codeshare flights must either meet the for specific domestic O&D city pair markets gates at CVG, and (d) two gates at DFW. In above requirement or be to or from small hub offered by one of the Alliance Carriers unless addition, within 90 days following the date and non-hub airports (‘‘Category II flights’’).5 the corporation or travel agent has stated in of this agreement, Northwest Airlines shall In the second year following commencement writing that it desires such a specific release to the airport sponsor upon its request of codeshare operations (‘‘Year Two’’), 1 domestic O&D city-pair offer in order to two gates at BOS , Continental shall release Domestic, Canadian, and Caribbean compare it to a competitive bid from one of to the airport sponsor upon its request two codesharing between Delta and Continental 10 2 the largest seven carriers or a carrier gates at LGA , and Delta shall release to the and between Delta and Northwest shall be alliance (excluding any bid involving an airport sponsor upon request two gates at limited to an additional 650 flights per two- Alliance Carrier) that contains a specific LGA 3 for lease to domestic non-Alliance carrier combination (for an additional 2,600 Carriers or for common use. Further, Delta flights for Year Two and an aggregate total of Air Lines will release thirteen gates and enough Category I flights being available, that 5,200 flights by the end of Year Two). For carrier may substitute Category II flights for related facilities at BOS upon Delta’s codeshare flights added in Year Two, no less Category I flights, provided that the substituted relocation to its new Terminal A facility than 12% of each marketing carrier’s new Category II flights are over and above the separate currently anticipated to be completed in the codeshare flights must be Category I flights requirement for Category II flights. second quarter of 2005. Of these thirteen and no less than an additional 18% of each 7 This percentage may be adjusted due to the gates, eight gates shall be released to the marketing carrier’s new codeshare flights circumstances set forth in footnote 6. airport sponsor and five gates shall be 6 must be Category II flights. The Alliance 8 For the purposes of this condition, ‘‘city’’ is returned to the airline lessors from whom defined as a primary metropolitan statistical area 4 For the purposes of this condition, ‘‘other hub with the exception of New York City, which is 1 Terminal E, Gates 1A and 1B with the related airports’’ are defined as Atlanta (ATL), Cleveland defined as including Newark. support space (including overnight positions) (CLE), Memphis (MEM), Minneapolis/St. Paul 9 For the purposes of this condition, ‘‘market shown on Exhibit 1. (MSP), Newark (EWR), and Salt Lake City (SLC). share’’ is determined by scheduled departing seats 2 Central Terminal Building, Gates A1 and B2 5 For the purposes of this condition, ‘‘small hub’’ on flights within the 50 United States. with the related support space (including overnight and ‘‘non-hub’’ airports are defined by the Airport 10 For the purposes of this condition, the largest positions) shown on Exhibit 2. Activity Statistics published by the Department of seven carriers will be determined by system 3 Marine Air Terminal, Gates 5 and 6 with the Transportation, Bureau of Transportation Statistics. scheduled passenger revenue for the latest twelve- related support space (including overnight 6 If any Alliance Carrier is unable to meet the month period as reported to the Department of positions) shown on Exhibit 3. requirements for Category I flights due to not Transportation (14 CFR Part 241, Section 24).

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domestic O&D city pair offer. This condition DEPARTMENT OF TRANSPORTATION material received from the public, as shall not apply to joint bids involving only well as documents mentioned in this Northwest and Continental and it shall not Coast Guard notice as being available in the docket, require that an agreement in place with a will become part of this docket and will [USCG 2002–13962] corporation or travel agent be terminated. be available for inspection or copying at Before deciding whether the Information Collection Under Review room PL–401 (Plaza level), 400 Seventh requested alternatives are adequate, we by the Office of Management and Street SW., Washington, DC, between 9 believe that we would benefit by Budget (OMB): OMB Control Numbers a.m. and 5 p.m., Monday through obtaining the views of interested parties 2115–0086 and 2116–0551 Friday, except Federal holidays. You and the public. We are therefore inviting may also find this docket on the Internet AGENCY: Coast Guard, DOT. public comment on the Alliance at http://dms.dot.gov. Carriers’ proposed alternatives. To allow ACTION: Request for comments. Copies of the complete ICRs are us to complete our review promptly, we available for inspection and copying in SUMMARY: In compliance with the public dockets. They are available in are making comments due by March 18. Paperwork Reduction Act of 1995, this docket USCG 2002–13962 of the Docket In light of our already-completed request for comments announces that Management Facility between 10 a.m. comprehensive review of the original the Coast Guard has forwarded the two and 5 p.m., Monday through Friday, proposal, and the limited scope of the Information Collection Requests (ICRs) except Federal holidays; for inspection additional review necessary to consider abstracted below to the Office of and printing on the Internet at http:// the three alternative conditions, we will Information and Regulatory Affairs dms.dot.gov; and for inspection from the grant the Alliance Carriers’ request for (OIRA) of the Office of Management and Commandant (G–CIM–2), U.S. Coast expedited review and will decide Budget (OMB) for review and comment. Guard, room 6106, 2100 Second Street whether their proposals are adequate Our ICRs describe the information we SW., Washington, DC, between 10 a.m. within 30 days. We are now considering seek to collect from the public. Review and 4 p.m., Monday through Friday, only whether the Alliance Carriers’ and comment by OIRA ensures that we except Federal holidays. three new proposals adequately address impose only paperwork burdens FOR FURTHER INFORMATION CONTACT: the competitive concerns regarding the commensurate with our performance of Barbara Davis, Office of Information three corresponding conditions that duties. Management, 202–267–2326, for were discussed in our January Notice. DATES: Please submit comments on or questions on this document; Dorothy Accordingly, comments should be before April 7, 2003. Beard, Chief, Documentary Services directed solely to those three alternative ADDRESSES: To make sure that your Division, U.S. Department of conditions. We are not requesting comments and related material do not Transportation, 202–366–5149, for comments on the analysis and enter the docket [USCG 2002–13962] questions on the docket. conclusions set forth in our January more than once, please submit them by SUPPLEMENTARY INFORMATION Notice. only one of the following means: Regulatory History If we determine that the alternative (1)(a) By mail to the Docket conditions adequately address our Management Facility, U.S. Department This request constitutes the 30-day of Transportation, room PL–401, 400 concerns, and the Alliance Carriers notice required by OIRA. The Coast Seventh Street SW., Washington, DC formally accept them along with the Guard has already published (67 FR 20590–0001. (b) By mail to OIRA, 725 other three conditions developed by us, 72718 (December 6, 2002)) the 60-day 17th Street NW., Washington, DC 20503, notice required by OIRA. That notice we would not institute a formal to the attention of the Desk Officer for elicited no comments. enforcement proceeding at this time to the Coast Guard. Caution: Because of determine whether the airlines’ recent delays in the delivery of mail, Request for Comments agreements violate section 41712. We your comments may reach the Facility The Coast Guard invites comments on retain our statutory authority, however, more quickly if you choose one of the the proposed collections of information to continue to monitor the three airlines’ other means described below. to determine whether the collections are implementation of their alliance, and to (2)(a) By delivery to room PL–401 at necessary for the proper performance of take enforcement action under section the address given in paragraph (1)(a) the functions of the Department. In 41712 in the future if necessary. We above, between 9 a.m. and 5 p.m., particular, the Coast Guard would continue to believe, however, that if the Monday through Friday, except Federal appreciate comments addressing: (1) alliance were implemented as originally holidays. The telephone number is 202– The practical utility of the collections; presented to us, it would raise serious 366–9329. (b) By delivery to OIRA, at (2) the accuracy of the Department’s competitive issues. As a result, if the the address given in paragraph (1)(b) estimated burden of the collections; (3) Alliance Carriers implemented the above, to the attention of the Desk ways to enhance the quality, utility, and alliance without conditions satisfactory Officer for the Coast Guard. clarity of the information that is the to us, we would begin a formal (3) By fax to (a) the Facility at 202– subject of the collections; and (4) ways enforcement proceeding. 493–2251 and (b) OIRA at 202–395– to minimize the burden of collection on 5806, or e-mail to OIRA at respondents, including the use of Issued in Washington, DC on March 3, [email protected] attention: automated collection techniques or 2003. Desk Officer for the Coast Guard. other forms of information technology. Read C. Van de Water, (4)(a) Electronically through the Web Comments, to DMS or OIRA, must Assistant Secretary for Aviation and Site for the Docket Management System contain the OMB Control Number of the International Affairs. at http://dms.dot.gov. (b) OIRA does not ICR addressed. Comments to DMS must [FR Doc. 03–5450 Filed 3–4–03; 2:35 pm] have a Web site on which you can post contain the docket number of this BILLING CODE 4910–62–P your comments. request, USCG 2002–13962. Comments The Facility maintains the public to OIRA are best assured of having their docket for this notice. Comments and full effect if OIRA receives them 30 or

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fewer days after the publication of this additional 0.19 acres will be DEPARTMENT OF TRANSPORTATION request. permanently utilized by VDOT within Federal Aviation Administration Information Collection Request utility and drainage easements. There are no adverse impacts to the airport Notice of Intent To Rule on Application 1. Title: Application for Measurement and the land is not needed for airport of Vessels for Tonnage. 03–04–C–00–EAT To Impose and Use development as shown on the Airport the Revenue From a Passenger Facility OMB Control Number: 2115–0086. Layout Plan. Fair Market Value of the Type of Request: Extension of a Charge (PFC) at Pangborn Memorial land will be deposited into a sponsor currently approved collection. Airport, Submitted by the Ports of owned interest bearing account, and Affected Public: Owners of vessels. Chelan and Douglas Counties, Form: CG–5397. used for airport purposes. Pangborn Memorial Airport, Abstract: The information from this DATES: Comments must be received on Wenatchee, WA collection helps the Coast Guard to or before April 7, 2003. AGENCY: Federal Aviation determine a vessel’s tonnage. Tonnage Administration (FAA). DOT. in turn helps to determine licensing, ADDRESSES: Comments on this inspection, safety requirements, and application may be mailed or delivered ACTION: Notice of intent to rule on operating fees. in triplicate to the FAA at the following application. Annual Estimated Burden Hours: The address: Terry J. Page, Manager, FAA SUMMARY: The FAA proposes to rule and estimated burden is 33,000 hours a year. Washington Airports District Office, invites public comment on the 2. Title: Vessel Reporting. 23723 Air Freight Lane, Suite 210, application to impose and use PFC OMB Control Number: 2115–0551. Dulles, VA 20166. revenue at Pangborn Memorial Airport, Type of Request: Extension of a In addition, one copy of any under the provisions of 49 U.S.C. 40117 currently approved collection. comments submitted to the FAA must and part 158 of the Federal Aviation Affected Public: Owners, charterers, be mailed or delivered to Bryan Elliott, Regulations (14 CFR part 158). managing operators, or agents. Executive Director, Charlottesville- DATES: Comments must be received on Form: This collection of information Albemarle Airport, at the following or before April 7, 2003. does not require the public to fill out address: Bryan Elliott, Executive ADDRESSES: Comments on this forms, but does require the information Director, Charlottesville-Albemarle application may be mailed or delivered to be in written format to the Coast Airport Authority, 100 Bowen Loop, in triplicate to the FAA at the following Guard. address: Mr. J. Wade Bryant, Manager; Abstract: This collection of Suite 200, Charlottesville, VA 22911. Seattle Airports District Office, SEA– information requires the owner, FOR FURTHER INFORMATION CONTACT: Mr. ADO; Federal Aviation Administration; charterer, managing operator, or agent of Terry Page, Manager, Washington 1601 Lind Avenue SW., Suite 250, a U.S.-flagged vessel to immediately Airports District Office, 23723 Air Renton, Washington 98055–4056. notify the Coast Guard if there is reason Freight Lane, Suite 210, Dulles, VA In addition, one copy of any to believe the vessel is in distress or 20166; telephone (703) 661–1354, fax comments submitted to the FAA must lost. Comparable information must (703) 661–1370, e-mail be mailed or delivered to Mr. Colin A. follow in the form of written [email protected]. Clarke, Airport Manager, at the confirmation within 24 hours to the following address: One Pangborn Drive, Coast Guard. SUPPLEMENTARY INFORMATION: On April East Wenatchee, WA 98802–9233. Annual Estimated Burden Hours: The 5, 2000, new authorizing legislation Air Carriers and foreign air carriers estimated burden is 137 hours a year. became effective. That bill, the Wendell may submit copies of written comments Dated: February 26, 2003. H. Ford Aviation Investment and previously provided to Pangborn Clifford I. Pearson, Reform Act for the 21st Century, Pub. L. Memorial Airport, under section 158.23 RADM, USCG, Director of Information and 10–181 (Apr. 5, 2000; 114 Stat. 61) (AIR of part 158. Technology. 21) requires that a 30 day public notice FOR FURTHER INFORMATION CONTACT: Ms. [FR Doc. 03–5328 Filed 3–5–03; 8:45 am] must be provided before the Secretary Suzanne Lee-Pang, (425) 227–2654, BILLING CODE 4910–15–P may waive any condition imposed on an Seattle Airports District Office, SEA– interest in surplus property. ADO; Federal Aviation Administration, Issued in Chantilly, Virginia on January 31, 1601 Lind Avenue SW., Suite 250, DEPARTMENT OF TRANSPORTATION 2003. Renton, Washington 98055–4056. The application may be reviewed in person Federal Aviation Administration Terry J. Page, at this same location. Manager, Washington Airports District Office, Notice Before Waiver With Respect to SUPPLEMENTARY INFORMATION: The FAA Eastern Region. proposes to rule and invites public Land at Charlottesville-Albemarle [FR Doc. 03–5293 Filed 3–5–03; 8:45 am] Airport, Charlottesville, VA comment on the application 03–04–C– BILLING CODE 4910–13–M 00–EAT to impose and use PFC revenue AGENCY: Federal Aviation at Pangborn Memorial Airport, under Administration (FAA), DOT. the provisions of 49 U.S.C. 40117 and ACTION: Notice of intent of waiver with part 158 of the Federal Aviation respect to land. Regulations (14 CFR part 158). On February 26, 2003, the FAA SUMMARY: The FAA is publishing notice determined that the application to of proposed release of 1.75 acres of land impose and use the revenue from a PFC at the Charlottesville-Albemarle Airport, submitted by Ports of Chelan and Charlottesville, Virginia, to the Virginia Douglas Counties, Pangborn Memorial Department of Transportation for Airport, Wenatchee, Washington, was construction of State Route 649. An substantially complete within the

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requirements of § 58.25 of part 158. The approval what minimum performance How To Obtain Copies FAA will approve or disapprove the standards (MPS) their Very High You may get a copy of the draft TSO application, in whole or in part, no later Frequency (VHF) data broadcast (VDB) from the Internet at: http://av- than May 27, 2003. equipment using the Global Positioning info.faa.gov/tso/Tsopro/Proposed.htm. The following is a brief overview of System (GPS) augmented by the Local You may also request a copy from Mr. the application. Area Augmentation System (LAAS) Bruce DeCleene. See section entitled Level of the proposed PFC: $4.50. must first meet for approval and FOR FURTHER INFORMATION CONTACT for Proposed charge effective date: June identification with the applicable TSO complete address. 1, 2003. marking. Proposed charge expiration date: May Issued in Washington, DC, on February 28, 30, 2004. DATES: Submit comments on or before 2003. Total requested for use approval: April 8, 2003. Susan J.M. Cabler, $123,500. ADDRESSES: Send all comments on the Deputy Manager, Aircraft Engineering Division, Aircraft Certification Service. Brief description of proposed project: proposed TSO to: Federal Aviation Phase II Pavement Overlay—Taxiway G Administration, Aircraft Certification [FR Doc. 03–5291 Filed 3–5–03; 8:45 am] Slurry Seal; Equipment Garage; Security Service, Room 815, AIR–130, 800 BILLING CODE 4910–13–M Fencing; Acquire Vacuum Runway Independence Avenue, SW., Sweeper and Curb Sweeper; Segmented Washington, DC 20591. You may deliver DEPARTMENT OF TRANSPORTATION Circle and Wind Tee; Update Master comments to: Federal Aviation Plan and Runway Snow Plow. Administration, 800 Independence Federal Aviation Administration Class or classes of air carriers, which Avenue, SW., Room 815, Washington, the public agency has requested, not be DC 20591. Airborne Navigation Sensors Using the required to collect PFC’s: None. Global Positioning System Augmented Any person may inspect the FOR FURTHER INFORMATION CONTACT: Mr. Bruce DeCleene, Federal Aviation by the Local Area Augmentation application in person at the FAA office System listed above under FOR FURTHER Administration, Aircraft Certification INFORMATION CONTACT and the FAA Service, Room 815, AIR–130, 800 AGENCY: Federal Aviation Regional Airports Office located at: Independence Avenue, SW., Administration, DOT. Federal Aviation Administration, Washington, DC 20591, Telephone: ACTION: Notice of availability and Northwest Mountain Region, Airports (202) 385–4640, Fax: (202) 385–4651. request for public comment. Division, ANM–600, 1601 Lind Avenue SUPPLEMENTARY INFORMATION: SW., Suite 315, Renton, WA 98055– SUMMARY: This notice announces the 4056. Comments Invited availability of and requests comments on a draft Technical Standard Order In addition, any person may, upon You are invited to comment on the request, inspect the application, notice (TSO) C–161, Local Area Augmentation draft TSO listed in this notice by System Positioning and Navigation and other documents germane to the submitting written data, views, or application in person at the Pangborn Equipment. The draft TSO tells arguments, to the address listed above. manufacturers seeking TSO Memorial Airport. Issued in Renton, Your comments should be identified as Washington on February 26, 2003. authorization or letter of design ‘‘Comments to TSO C–162.’’ You can approval what minimum performance David A. Field, examine comments on the draft TSO standards (MPS) their airborne Manager, Planning, Programming and before and after the closing date, at the navigation equipment using the Global Capacity Branch, Northwest Mountain Federal Aviation Administration, Room Positioning System (GPS) augmented by Region. 815, 800 Independence Avenue, SW., the Local Area Augmentation System [FR Doc. 03–5294 Filed 3–5–03; 8:45 am] Washington, DC 20591, weekdays (LAAS) (GPS/LAAS equipment) must except Federal Holidays between 8:30 BILLING CODE 4910–13–M first meet for approval and a.m. and 4:30 p.m. All communications identification with the applicable TSO received on or before the closing date marking. DEPARTMENT OF TRANSPORTATION will be considered by the Director of the Aircraft Certification Service before DATES: Submit comments on or before Federal Aviation Administration issuing the final TSO. April 8, 2003. ADDRESSES: Send all comments on the Airborne Navigation Sensors Using the Background proposed TSO to: Federal Aviation Global Positioning System Augmented The FAA is pursuing differential GPS Administration, Aircraft Certification by the Local Area Augmentation technology under the LAAS program. Service, Room 815, AIR–130, 800 System LAAS ground facilities will be Independence Avenue, SW., AGENCY: Federal Aviation consistent with the International Civil Washington, DC 20591. You may deliver Administration, DOT. Aviation Organization standards for comments to: Federal Aviation Administration, 800 Independence ACTION: Notice of availability and Ground-based Augmentation Systems Avenue, SW., Room 815, Washington, request for public comment. for GPS that support Category I precision approaches and the DC 20591. SUMMARY: This notice announces the positioning service. RTCA has FOR FURTHER INFORMATION CONTACT: Mr. availability of and requests comments developed standards for airborne Bruce DeCleene, Federal Aviation on a draft Technical Standard Order navigation equipment using LAAS. Two Administration, Aircraft Certification (TSO) C–162, Local Area Augmentation new TSOs have been drafted based Service, Room 815, AIR–130, 800 System Very High Frequency Data upon the RTCA standards. One TSO is Independence Avenue, SW., Broadcast Equipment. The draft TSO for the VHF data broadcast receive Washington, DC 20591, Telephone: tells manufacturers seeking TSO function; the other is for the position (202) 385–4640, Fax: (202) 395–4651. authorization or letter of design and navigation function. SUPPLEMENTARY INFORMATION:

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Comments Invited Environmental Impact Statement will be the Congressional designation of the You are invited to comment on the prepared for a proposed Interstate corridor. draft TSO listed in this notice by highway project in Bossier, Claiborne, Social, economic, and environmental submitting written data, views, or and Webster Parishes, Louisiana and in considerations will determine the arguments, to the address listed above. Union and Columbia Counties, number and location of alternatives to Your comments should identify Arkansas. be developed during the preparation of the EIS. The western terminus of the ‘‘Comments to TSO C–161.1.’’ You can FOR FURTHER INFORMATION CONTACT: Mr. proposed highway will be an examine all comments on the draft TSO William Farr, Program Operations interchange at I–20 near the Town of before and after the closing date, at the Manager, Federal Highway Haughton in Bossier Parish, Louisiana. Federal Aviation Administration, Room Administration, 5304 Flanders Drive, The eastern terminus of the proposed 815, 800 Independence Avenue, SW., Suite A, Baton Rouge, Louisiana 70808, highway will be an interchange at U.S. Washington, DC 20591, weekdays Telephone: (225) 757–7615, or Mr. 82 near the town of El Dorado in Union except Federal Holidays between 8:30 Vincent Russo, Environmental Engineer County, Arkansas. a.m. and 4:30 p.m. The Director of the Administrator, Louisiana Department of Alternatives under consideration Aircraft Certification Service considers Transportation and Development, Post include (1) the no build and (2) all communications received on or Office Box 94245, Baton Rouge, constructing a four-lane, limited access before the closing date before issuing Louisiana 70804–9245, Telephone: (225) highway within the limits described the final TSO. 248–4190, or Mr. Randal Looney, above, on various alignment Background Environmental Specialist, Federal alternatives. Letters describing the proposed action The FAA is pursuing differential GPS Highway Administration, Federal Office and soliciting comments will be sent to technology under the LAAS program. Building, 700 West Capitol Avenue, the appropriate Federal, State, and local LAAS ground facilities will be Room 3130 Little Rock, Arkansas 72201, agencies, and to private organizations consistent with the International Civil Telephone: (501) 324–6430 or Mr. Bill and citizens who have previously Aviation Organization standards for Richardson, Asst. Division Head, expressed or are known to have interest Ground-based Augmentation Systems Environmental Division, Arkansas in this proposal. Federal and State for GPS that support Category I Highway and Transportation agencies with jurisdiction by law with precision approaches and the Department, 10324 Interstate 30, Little regards to the socials, economic and positioning service. RTCA has Rock, Arkansas 72201, Telephone: (501) environmental impact of his proposal developed standards for airborne 569–2379. Project information may be will be requested to act as a Cooperating navigation equipment using LAAS. Two obtained from the project Internet web Agency in this matter in accordance new TSOs have been drafted based site at www.i69arkla.com and the with 40 CFR 1501.6. Numerous public upon the RTCA standards. One TSO is project hotline at 1–877–886–9233. involvement initiatives, including for the VHF data broadcast receive SUPPLEMENTARY INFORMATION : The public meetings, newsletters, and function; the other is for the position FHWA, in cooperation with the advisory committee meetings will be and navigation function. Louisiana Department of Transportation held throughout the course of this How To Obtain Copies and Development (DOTD) and the study. Additionally, a Public Hearing Arkansas Highway and Transportation You may get a copy of the draft TSO will be held. Public notice will be given, Department (AHTD), will prepare an in local newspapers, of the time and from the Internet at: http://av- Environmental Impact Statement (EIS) info.faa.gov/tso/Tsopro/Proposed.htm. place of the meetings and hearing. The on a proposal to construct section of Draft EIS will be available for public You may also request a copy from Mr. independent utility (SIU) Number 14 for Bruce DeCleene, See the section entitled and agency review prior to the Public the proposed Interstate Highway 69 (I– Hearing. A formal scoping meeting will FOR FURTHER INFORMATION CONTACT for 69) in Bossier, Webster, and Claiborne the complete address. be held upon initiation of this project. Parishes, Louisiana and in Union and Three public scoping meetings will be Issued in Washington, DC, on February 28, Columbia Counties, Arkansas. This held with the intent of soliciting public 2003. proposal will provide a divided four- concerns related to issues that should be Susan J.M. Cabler, lane, limited access highway on new evaluated in detail in the study. Dates, Deputy Manager, Aircraft Engineering location between Interstate Highway 20 times and locations of these meetings Division, Aircraft Certification Service. (I–20) near the Town of Haughton in follow: [FR Doc. 03–5292 Filed 3–5–03; 8:45 am] Bossier Parish, Louisiana to U.S. • Tuesday, March 25, 2003, 4–7 p.m.: BILLING CODE 4910–13–M Highway 82 (U.S. 82) near the Town of South Arkansas Community College, El Dorado in Union County, Arkansas, West Campus Library Auditorium, 3200 a distance of approximately 80 miles. Southwest Avenue, El Dorado, Arkansas DEPARTMENT OF TRANSPORTATION The proposed new highway is a portion 71730; of the planned improvements to • Wednesday, March 26, 2003, 4–7 Federal Highway Administration Congressionally-designated High p.m.: Claiborne Parish Fair Barn Priority Corridor Numbers 18/20, which Complex, 1563 Fairgrounds Drive, Environmental Impact Statement: will link Indianapolis, Indiana to the Haynesville, Louisiana 71038; and Bossier, Webster, and Claiborne Texas/Mexico border. The purpose of • Thursday, March 27, 2003, 4–7 Parishes, Louisiana and Union and this proposal is to improve international p.m.: Minden Civic Center Complex Columbia Counties, Arkansas and interstate trade in accordance with Court/Meeting Room, 520 Broadway, AGENCY: Federal Highway national and state goals; to facilitate Minden, Louisiana 71055. Administration (FHWA), DOT. economic development in accordance To ensure that the full range of issues ACTION: Notice of intent. with state, regional, and local policies related to this proposal are addressed and plans; and to improve surface and all significant issues identified, SUMMARY: FHWA is issuing this notice transportation consistent with national, comments and suggestions are invited to advise the public that an state, regional, and local needs and with from all interested parties. Comments or

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questions concerning this proposed Docket No. MC–F–20997 to: Surface Agreement also provides that each of action and the EIS should be directed to Transportation Board, 1925 K Street, these transfers will also embrace the the DOTD at the address above. NW., Washington, DC 20423–0001. In transfer of relevant agent lists, customer (Catalog of Federal Domestic Assistance addition, send one copy of comments to lists, as well as certain records and other Program Number 20.205, Highway Research, applicants’ representative: David H. instruments related to the operation of Planning and Construction. The regulations Coburn, Steptoe & Johnson, LLP, 1330 the specific routes. implementing Executive Order 12372 Connecticut Avenue, NW., Washington, Finally, the Agreement provides that regarding intergovernmental consultation on DC 20036. the carriers will not engage in the Federal programs and activities apply to this FOR FURTHER INFORMATION CONTACT: operation of scheduled bus service on program.) Beryl Gordon, (202) 565–1600. [Federal each other’s transferred routes during a Issued on: February 27, 2003. Information Relay Service (FIRS) for the 5-year period. Jose Bloise, hearing impaired: 1–800–877–8339.] Under 49 U.S.C. 14303(b), we must Assistant Division Administrator, FHWA. SUPPLEMENTARY INFORMATION: Coach, a approve and authorize a transaction we [FR Doc. 03–5125 Filed 3–5–03; 8:45 am] Delaware corporation, currently controls find consistent with the public interest, BILLING CODE 4910–22–M numerous motor passenger carriers,2 taking into consideration at least: (1) including Suburban and RTT,3 both of The effect of the transaction on the which are based in New Jersey and adequacy of transportation to the public; DEPARTMENT OF TRANSPORTATION operate in the New Jersey/New York (2) the total fixed charges that result; and (3) the interest of affected carrier Surface Transportation Board area. Academy Bus, a noncarrier, currently controls certain motor employees. [STB Docket No. MC–F–20997] passenger carriers,4 including Academy Applicants have submitted the Express and Academy Lines; both of information required by 49 CFR 1182.2, Coach USA, Inc., et al.—Purchase and these carriers are based in New Jersey including information to demonstrate Sale of Assets—Academy Bus, LLC, et with operations in that state and New that the proposed transaction is al. York.5 In this transaction, these carriers consistent with the public interest AGENCY: Surface Transportation Board, will exchange certain routes and other under 49 U.S.C. 14303(b). Applicants DOT. assets with one another. submit that they have suffered economically following the events of ACTION: Notice tentatively approving Specifically, under an Asset Purchase September 11, 2001. They maintain that finance transaction. and Exchange Agreement (Agreement), Academy Express and related entities these route and related asset exchanges SUMMARY: Coach USA, Inc. (Coach), a have agreed to transfer to Coach or to an will allow them to improve the noncarrier, and Suburban Transit Corp. affiliate of Coach to be designated by it, efficiency of their operations and reduce (Suburban) and Red & Tan Tours, Inc. certain bus routes between points in costs because the routes they will attain (RTT), two motor passenger carriers, New York City and Westchester County, will blend efficiently into other filed an application under 49 U.S.C. NY, on the one hand, and Atlantic City, operations that they conduct. They also 14303 jointly with Academy Bus, LLC NJ, on the other, as well as certain assets claim that passengers on the various (Academy Bus), a noncarrier, and including relevant agent lists, customer routes being exchanged will retain Academy Express, LLC (Academy lists, sales records, accounting records, substantial intermodal and intramodal Express) and Academy Lines, LLC and the trade name ‘‘Funaway Tours’’ in competitive alternatives, and therefore (Academy Lines),1 two motor passenger which this bus service is provided. that the transaction will not adversely carriers, to acquire from each other Further, Suburban has agreed to impact the adequacy of service to the certain operating rights in New York transfer to Academy Lines certain public. Applicants also state that the and New Jersey, and other assets. commuter routes along the Route 9 proposed transaction will not adversely Persons wishing to oppose the Corridor in New Jersey to and from New affect the employees of the carriers and application must follow the rules at 49 York City, and to Academy Express will not increase fixed charges. See 49 CFR 1182.5 and 1182.8. The Board has certain routes between points in CFR 1182.2(a)(7). tentatively approved the transaction, Northern New Jersey, on the one hand, On the basis of the application, we and, if no opposing comments are and Atlantic City, on the other. In find that the proposed transaction is timely filed, this notice will be the final addition, RTT has agreed to transfer to consistent with the public interest and Board action. Academy Express certain routes should be authorized. If any opposing DATES: Comments must be filed by April between points in Staten Island and comments are timely filed, this finding 21, 2003. Applicant may file a reply by northern New Jersey, on the one hand, will be deemed vacated and, unless a May 5, 2003. If no comments are filed and Atlantic City, on the other. The final decision can be made on the record by April 21, 2003, this notice is effective as developed, a procedural schedule on that date. 2 Coach is wholly owned by Stagecoach Group will be adopted to reconsider the plc, a noncarrier which indirectly controls the ADDRESSES: Send an original and 10 application. See 49 CFR 1182.6(c). If no carriers controlled by Coach. opposing comments are filed by the copies of any comments referring to STB 3 Suburban and RTT hold federally issued operating authority in Docket Nos. MC–115116 and expiration of the comment period, this 1 On January 27, 2003, New Jersey Transit Bus MC–162174, respectively, and New Jersey intrastate decision will take effect automatically Operations, Inc., and Academy Lines, jointly filed authority. and will be the final Board action. an application for approval of a pooling agreement 4 Academy Bus and its motor carrier affiliates are Board decisions and notices are with respect to Route 9 Corridor service from points indirectly controlled by Tedesco Family ESB Trust. available on our Web site at http:// in New Jersey to New York City, NY. In New Jersey See Tedesco Family ESB Trust—Continuance in Transit Bus Operations, Inc.—Pooling—Academy Control and Acquisition of Properties—Academy www.stb.dot.gov. Lines, L.L.C., STB Docket No. MC–F–20994 (STB Bus, L.L.C., et al., STB Docket No. MC–F–20983 This decision will not significantly served Feb. 12, 2003), the Board, under 49 U.S.C. (STB served Aug. 2, 2001). affect either the quality of the human 5 13541, authorized an exemption from the Academy Express and Academy Lines hold environment or the conservation of requirements of 49 U.S.C. 14302 to permit federally issued operating authority in Docket Nos. applicants to conduct interim pooling operations MC–228481 and MC–414016, respectively, and energy resources. pending Board action on the pooling application. New Jersey intrastate authority. It is ordered:

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1. The proposed purchase and sale of Dated: March 3, 2003. DEPARTMENT OF THE TREASURY assets is approved and authorized, Richard S. Carro, subject to the filing of opposing Senior Advisor to the General Counsel Internal Revenue Service comments. (Regulatory Affairs). Proposed Collection; Comment 2. If timely opposing comments are Treasury Department Order No. 165–09 Request for Forms 8288 and 8288–A filed, the findings made in this decision will be deemed vacated. Maintenance of delegation in respect to AGENCY: Internal Revenue Service (IRS), general authority over Customs revenue Treasury. 3. This decision will be effective on functions vested in the Secretary of the April 21, 2003, unless timely opposing Treasury, as set forth and defined in the ACTION: Notice and request for comments are filed. Homeland Security Act of 2002. comments. 4. A copy of this notice will be served Treasury Department, Washington, DC, SUMMARY: The Department of the on: (1) The U.S. Department of February 28, 2003 Treasury, as part of its continuing effort Transportation, Federal Motor Carrier Whereas the Homeland Security Act of to reduce paperwork and respondent Safety Administration 400 7th Street, 2002 (Pub. L. 107–296) (the ‘‘Act’’) was burden, invites the general public and SW., Room 8214, Washington, DC enacted into law on November 25, 2002; other Federal agencies to take this 20590; (2) the U.S. Department of Whereas the Act transfers the United States opportunity to comment on proposed Justice, Antitrust Division, 10th Street & Customs Service from the Treasury and/or continuing information Pennsylvania Avenue, NW., Department to a new Department of collections, as required by the Washington, DC 20530; and (3) the U.S. Homeland Security, and, under the Paperwork Reduction Act of 1995, Pub. Department of Transportation, Office of President’s Reorganization Plan submitted to L. 104–13 (44 U.S.C. 3506(c)(2)(A)). the General Counsel, 400 7th Street, the Congress, this becomes effective March 1, Currently, the IRS is soliciting SW., Washington, DC 20590. 2003; comments concerning Form 8288, U.S. Decided: February 27, 2003. Whereas the Act requires that legal Withholding Tax Return for By the Board, Chairman Nober, Vice authority over the Customs revenue functions Dispositions by Foreign Persons of U.S. Chairman Burkes, and Commissioner vested in the Secretary of the Treasury shall Real Property Interests, and Form 8288– Morgan. be retained, but may be delegated to the A, Statement of Withholding on Vernon A. Williams, Secretary of Homeland Security in whole or Dispositions by Foreign Persons of U.S. Secretary. in part; Real Property Interests. [FR Doc. 03–5153 Filed 3–5–03; 8:45 am] Whereas the Treasury Department is studying the proper allocation of these DATES: Written comments should be BILLING CODE 4915–00–P authorities and consulting with the received on or before May 5, 2003 to be Administration and Congress in that regard; assured of consideration. Whereas the pre-existing Treasury Order ADDRESSES: Direct all written comments to Glenn P. Kirkland, Internal Revenue DEPARTMENT OF THE TREASURY 165, as amended (‘‘Treasury Order 165’’), has provided the Commissioner of Customs a Service, room 6411, 1111 Constitution Departmental Offices; Delegation of delegation of authority from the Secretary of Avenue NW., Washington, DC 20224. Authority to the Secretary of Homeland the Treasury for Customs functions; FOR FURTHER INFORMATION CONTACT: Security Whereas the United States Customs Service Requests for additional information or relies on delegated authority for important copies of the form and instructions AGENCY: Departmental Offices, Treasury. aspects of its functions and operations; should be directed to Carol Savage, Now therefore, in order to preserve the ACTION: Notice. (202) 622–3945, or through the internet ability of the Department of Homeland ([email protected].), Internal Security to continue to perform the functions Revenue Service, room 6407, 1111 DATES: Treasury Department Order 165– of the Customs Service and to provide Constitution Avenue NW., Washington, 09 became effective on February 28, adequate time for a considered decision on DC 20224. 2003. any new delegation, I hereby order that, with SUPPLEMENTARY INFORMATION: SUMMARY: On February 28, 2003, the respect to authority over Customs revenue functions, Treasury Order 165 remains in Title: U.S. Withholding Tax Return for Secretary of the Treasury issued Dispositions by Foreign Persons of U.S. Treasury Department Order 165–09 to effect except that the authority previously delegated to the Commissioner of Customs as Real Property Interests (Form 8288) and preserve the ability of the Department of Statement of Withholding on Homeland Security to continue to an official of the Department of Treasury is now delegated to the Secretary of Homeland Dispositions by Foreign Persons of U.S. perform the functions of the United Real Property Interests (Form 8288–A). States Customs Service pending Security. Treasury shall retain the same authority delineated in Treasury Order 165 OMB Number: 1545–0902. consideration of a delegation of Form Number: 8288 and 8288–A. authority concerning the Customs that it possessed prior to the transfer of the Customs Service to the Department of Abstract: Internal Revenue Code revenue function retained by the section 1445 requires transferees to Secretary of the Treasury pursuant to Homeland Security. Consistent with past interpretation and practice, I note that the withhold tax on the amount realized the Homeland Security Act of 2002. from sales or other dispositions by Under the Order, the Department of the use of the term ‘‘transferred’’ with respect to certain authority delegated in Treasury Order foreign persons of U.S. real property Treasury retains the same authority over 165 shall continue to be understood to effect interests. Form 8288 is used to report the Customs revenue functions it only a delegation. and transmit the amount withheld to the possessed prior to the transfer of the IRS. Form 8288–A is used by the IRS to United States Customs Service to the John W. Snow, Secretary of the Treasury. validate the withholding, and a copy is Department of Homeland Security. returned to the transferor for his or her [FR Doc. 03–5359 Filed 3–5–03; 8:45 am] SUPPLEMENTARY INFORMATION: The text of use in filing a tax return. Treasury Department Order 165–09 BILLING CODE 4810–25–P Current Actions: There are no changes follows. being made to the forms at this time.

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Type of Review: Extension of a SUMMARY: The Internal Revenue Service ADDRESSES: Nominations should be sent currently approved collection. (IRS) requests nominations of to Ms. Jacqueline Tilghman, National Affected Public: Business or other for- individuals to be considered for Public Liaison, CL:NPL:PAC, Room profit organizations and individuals or selection as Internal Revenue Service 7563 IR, 1111 Constitution Avenue, households. Advisory Council (IRSAC) and NW., Washington, DC 20224, Attn: Estimated Number of Respondents: Information Reporting Program IRSAC Nominations; or by e-mail: 10,000. Advisory Committee (IRPAC) members. *[email protected]. Applications Estimated Time Per Respondent: 23 Interested parties may nominate may be submitted by mail to the address hr., 55 min. themselves and/or at least one other above or faxed to 202–927–5253. Estimated Total Annual Burden qualified person for membership. However, if submitted via a facsimile, Hours: 239,175. Nominations will be accepted for the original application must be The following paragraph applies to all current vacancies and should describe received by mail, as National Public of the collections of information covered and document the applicants’ Liaison cannot consider an applicant by this notice: An agency may not conduct or qualifications for membership. IRSAC is nor process his/her application prior to sponsor, and a person is not required to comprised of twenty-three (23) receipt of an original signature. respond to, a collection of information members, approximately half of these Application packages are available on unless the collection of information IRSAC appointments will expire in the Tax Professional’s Page, which is displays a valid OMB control number. November 2003; IRPAC is comprised of located on the IRS Internet Web site at Books or records relating to a collection twenty (20) members, approximately http://www.irs.gov/taxpros/index.html. of information must be retained as long half of these members appointments Application packages may also be as their contents may become material will expire in October 2003. It is requested by telephone from National in the administration of any internal important that the IRSAC and IRPAC Public Liaison, 202–622–6440 (not a revenue law. Generally, tax returns and continue to represent a diverse taxpayer toll-free number). tax return information are confidential, and stakeholder base. Accordingly, to FOR FURTHER INFORMATION CONTACT: Ms. as required by 26 U.S.C. 6103. maintain membership diversity, Jacqueline Tilghman, 202–622–6440 Request for Comments: Comments selection is based on applicant’s (not a toll-free number). submitted in response to this notice will qualifications as well as the segment or SUPPLEMENTARY INFORMATION: be summarized and/or included in the group he/she represents. Authorized under the Federal Advisory request for OMB approval. All The Internal Revenue Service Committee Act, Pub. L. No. 92–463, the comments will become a matter of Advisory Council (IRSAC) provides an first Advisory Group to the public record. Comments are invited on: organized public forum for IRS officials Commissioner of Internal Revenue or (a) Whether the collection of and representatives of the public to the Commissioner’s Advisory Group information is necessary for the proper discuss relevant tax administration (CAG)—was established in 1953 as a performance of the functions of the issues. The Council advises the national policy and/or issue advisory agency, including whether the Commissioner on issues that have a committee and was renamed in 1998 to information shall have practical utility; substantive effect on federal tax reflect the agency-wide scope of its (b) the accuracy of the agency’s estimate administration. As an advisory body focus as an advisory body. of the burden of the collection of designed to focus on broad policy information; (c) ways to enhance the matters, the IRSAC reviews existing tax Conveying the public’s perception of quality, utility, and clarity of the policy and/or recommends policies with IRS activities to the Commissioner, the information to be collected; (d) ways to respect to emerging tax administration IRSAC and IRPAC are comprised of minimize the burden of the collection of issues. The IRSAC suggests operational individuals who bring substantial, information on respondents, including improvements, offers constructive disparate experience and diverse through the use of automated collection observations regarding current or backgrounds on the Council’s/ techniques or other forms of information proposed IRS policies, programs, and Committee’s activities. Membership is technology; and (e) estimates of capital procedures, and advises the balanced to include representation from or start-up costs and costs of operation, Commissioner with respect to issues the taxpaying public, the tax maintenance, and purchase of services having substantive effect on federal tax professional community, small and to provide information. administration. large businesses, state tax administration, and the payroll Approved: February 28, 2003. The Information Reporting Program community. Glenn P. Kirkland, Advisory Committee (IRPAC) advises IRS Reports Clearance Officer. the IRS on information reporting issues IRSAC and IRPAC members are [FR Doc. 03–5341 Filed 3–5–03; 8:45 am] of mutual concern to the private sector appointed by the Commissioner and serve a term of three years. The BILLING CODE 4830–01–P and the federal government. The committee works with the Commissioner determines the size of the Commissioner and other IRS executives IRSAC and IRPAC and the organizations DEPARTMENT OF THE TREASURY to provide recommendations on a wide represented on the Council/Committee. range of information reporting Working groups mirror the reorganized Internal Revenue Service administration issues. Membership is IRS and address policies and balanced to include representation from administration issues specific to the Internal Revenue Service Advisory the taxpaying public, the tax four Operating Divisions. Members are Council (IRSAC) and Information professional community, small and not paid for their services. However, Reporting Program Advisory large businesses, state tax travel expenses for working sessions, Committee (IRPAC); Nominations administration, and the payroll public meetings and orientation AGENCY: Internal Revenue Service, community. sessions, such as airfare, per diem, and Department of Treasury. transportation to and from airports, train DATES: Written nominations must be stations, etc., are reimbursed within ACTION: Request for nominations. received on or before May 30, 2003. prescribed federal travel limitations.

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Receipt of nominations will be period for their VA care. OMB has been DEPARTMENT OF VETERANS acknowledged, nominated individuals requested to act on this emergency AFFAIRS contacted, and immediately thereafter, clearance request by March 10, 2003. [OMB Control No. 2900–0178] biographical information must be DATE: Comments must be submitted on completed and returned to Ms. or before March 13, 2003. Agency Information Collection Jacqueline Tilghman in National Public Activities Under OMB Review Liaison within fifteen (15) days of FOR FURTHER INFORMATION OR A COPY OF receipt. In accordance with Department THE SUBMISSION CONTACT: Denise AGENCY: Veterans Benefits of Treasury Directive 21–03, a clearance McLamb, Records Management Service Administration, Department of Veterans process including pre-appointment and (005E3), Department of Veterans Affairs, Affairs. annual tax checks, a Federal Bureau of 810 Vermont Avenue, NW., ACTION: Notice. Investigation criminal and subversive Washington, DC 20420, (202) 273–8030, name check, and a security clearance FAX (202) 273–5981 or e-mail: SUMMARY: In compliance with the will be conducted. [email protected]. Please Paperwork Reduction Act (PRA) of 1995 Equal opportunity practices will be refer to ‘‘OMB Control No. 2900–New, (44 U.S.C., 3501 et seq.), this notice followed for all appointments to the USAA/Hartford.’’ announces that the Veterans Benefits IRSAC and IRPAC in accordance with Send comments and Administration (VBA), Department of the Department of Treasury and IRS recommendations concerning any Veterans Affairs, has submitted the policies. To ensure that the aspect of the information collection to collection of information abstracted recommendations of the IRSAC/IRPAC VA’s OMB Desk Officer, OMB Human below to the Office of Management and have taken into account the needs of the Resources and Housing Branch, New Budget (OMB) for review and comment. diverse groups served by the IRS, Executive Office Building, Room 10235, The PRA submission describes the membership shall include individuals Washington, DC 20503 (202) 395–7316 nature of the information collection and who demonstrate the ability to represent or FAX (202) 395–6974. Please refer to its expected cost and burden; it includes minorities, women, and persons with ‘‘2900–New, USAA/Hartford.’’ the actual data collection instrument. disabilities. DATES: Comments must be submitted on SUPPLEMENTARY INFORMATION: Dated: February 27, 2003. or before April 7, 2003. Title: VA Copayment Refund—USAA/ Robin Marusin, FOR FURTHER INFORMATION OR A COPY OF Hartford Claim Form, VA Form 10– THE SUBMISSION CONTACT: Denise Designated Federal Official, National Public 0406. Liaison. McLamb, Records Management Service OMB Control Number: 2900–New, [FR Doc. 03–5340 Filed 3–5–03; 8:45 am] (005E3), Department of Veterans Affairs, USAA/Hartford. 810 Vermont Avenue, NW., BILLING CODE 4830–01–P Type of Review: New collection. Washington, DC 20420, (202) 273–8030, Abstract: As a result of a Settlement FAX (202) 273–5981 or e-mail: [email protected]. Please DEPARTMENT OF VETERANS Agreement between VA, USAA and refer to ‘‘OMB Control No. 2900–0178.’’ AFFAIRS Hartford, VA will reimburse veterans insured by either carrier for co- Send comments and [OMB Control No. 2900–New, USAA/ payments they paid to VA for their recommendations concerning any Hartford] medical care from January 1, 1995 aspect of the information collection to VA’s OMB Desk Officer, OMB Human Agency Information Collection: through December 31, 2001. Such insured veterans will have a one year Resources and Housing Branch, New Emergency Submission for OMB Executive Office Building, Room 10235, Review; Comment Request time period from the initial notification date on a first-come-first-served basis, to Washington, DC 20503, (202) 395–7316. AGENCY: Veterans Health file claim with VA for refund of their co- Please refer to ‘‘OMB Control No. 2900– Administration, Department of Veterans payments. VA Form 10–0406 will be 0178’’ in any correspondence. Affairs. used to collect the information and to SUPPLEMENTARY INFORMATION: ACTION: Notice. determine the validity of such claims. If Title: Monthly Certification of On-the- the information is not collected, VA will Job and Apprenticeship Training, VA SUMMARY: In compliance with the not be able to reimburse those insured Form 22–6553d. (Note: A reference to Paperwork Reduction Act (PRA) of 1995 veterans. VA Form 22–6553d also includes VA (44 U.S.C., 3501 et seq.), this notice Affected Public: Individuals or Form 22–6553d–1 unless otherwise announces that the United States households. specified. VA Form 22–6553d–1 Department of Veterans Affairs (VA), contains the same information as VA has submitted to the Office of Estimated Total Annual Burden: Form 22–6553d.) Management and Budget (OMB) the 12,000 hours. OMB Control Number: 2900–0178 following emergency proposal for the Estimated Average Burden Per Type of Review: Extension of a collection of information under the Respondent: 30 minutes. currently approved collection. provisions of the Paperwork Reduction Frequency of Response: One time. Abstract: VA 22–6553d is used by Act (44 U.S.C. 3507(j)(1)). An emergency Estimated Number of Respondents: trainees and employers to report the clearance is being requested pursuant to 24,000. number of hours worked in on-the-job a Settlement Agreement resolving training programs and apprenticeships, litigation between VA and United Dated: February 26, 2003. and to report terminations of training in Services Automobile Association By direction of the Secretary. such programs. VA uses the information (USAA) and Hartford Life Insurance to Martin L. Hill, to determine whether a trainee’s reimburse veterans insured by either Acting Director, Records Management education benefits are to be continued, carrier during the period from January 1, Service. changed or terminated, and the effective 1995 through December 31, 2001 who [FR Doc. 03–5195 Filed 3–5–03; 8:45 am] date of such action. VA is authorized to paid copayments to VA during that BILLING CODE 8320–01–P pay education benefits to veterans and

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other eligible persons pursuing FOR FURTHER INFORMATION OR A COPY OF By direction of the Secretary. approved programs not leading to a THE SUBMISSION CONTACT: Denise Ernesto Castro, standard college degree under Title 38, McLamb, Records Management Service Director, Records Management Service. U.S.C., Chapters 32 and 35, Title 10, (005E3), Department of Veterans Affairs, [FR Doc. 03–5274 Filed 3–5–03; 8:45 am] U.S.C., Chapter 1606, and Public Law 810 Vermont Avenue, NW., BILLING CODE 8320–01–P 96–342, Section 903. Benefits are Washington, DC 20420, (202) 273–8030, authorized monthly based upon the FAX (202) 273–5981 or e-mail: number of hours worked by the trainee [email protected]. Please DEPARTMENT OF VETERANS and verified by the training refer to ‘‘OMB Control No. 2900–0156.’’ AFFAIRS establishment. Send comments and An agency may not conduct or recommendations concerning any [OMB Control No. 2900–0358] sponsor, and a person is not required to aspect of the information collection to Agency Information Collection respond to a collection of information VA’s OMB Desk Officer, OMB Human Activities Under OMB Review unless it displays a currently valid OMB Resources and Housing Branch, New control number. The Federal Register Executive Office Building, Room 10235, AGENCY: Veterans Benefits Notice with a 60-day comment period Washington, DC 20503 (202) 395–7316. Administration, Department of Veterans soliciting comments on this collection Please refer to ‘‘OMB Control No. 2900– Affairs. of information was published on 0156’’ in any correspondence. ACTION: Notice. November 15, 2002, at page 69305– SUPPLEMENTARY INFORMATION: 69306. Title: Notice of Change in Student SUMMARY: In compliance with the Affected Public: Individuals or Status (Under Chapter 30, 32, or 35, Paperwork Reduction Act (PRA) of 1995 households, Business or other for-profit, Title 38, U.S.C; Chapter 1606, Title 10. (44 U.S.C., 3501 et seq.), this notice not-for-profit institutions, Federal U.S.C. or Section 901 or 903 of Pub. L. announces that the Veterans Benefits Government, and State, Local or Tribal 96–342), VA Form 22–1999b. Administration (VBA), Department of Government. OMB Control Number: 2900–0156. Veterans Affairs, has submitted the Estimated Annual Burden: 20,100 Type of Review: Extension of a collection of information abstracted hours. currently approved collection. below to the Office of Management and Estimated Average Burden Per Budget (OMB) for review and comment. Respondent: 10 minutes. Abstract: VA Form 22–1999b is used by educational institutions to report The PRA submission describes the Frequency of Response: Monthly. nature of the information collection and Estimated Number of Respondents: changes in the enrollment of students in its expected cost and burden; it includes 13,400. receipt of VA education benefits. The the actual data collection instrument. Estimated Total Annual Responses: information is used to determine a 120,600. student’s entitlement to educational DATES: Comments must be submitted on benefits or whether the benefit should or before April 7, 2003. Dated: February 13, 2003. By direction of the Secretary: be increased, decreased, or terminated. FOR FURTHER INFORMATION OR A COPY OF Without this information, VA might THE SUBMISSION CONTACT Ernesto Castro, : Denise underpay or overpay benefits. McLamb, Records Management Service Director, Records Management Service. An agency may not conduct or (005E3), Department of Veterans Affairs, [FR Doc. 03–5273 Filed 3–5–03; 8:45 am] sponsor, and a person is not required to 810 Vermont Avenue, NW., BILLING CODE 8320–01–P respond to a collection of information Washington, DC 20420, (202) 273–8030, unless it displays a currently valid OMB FAX (202) 273–5981 or e-mail: control number. The Federal Register DEPARTMENT OF VETERANS [email protected]. Please Notice with a 60-day comment period AFFAIRS refer to ‘‘OMB Control No. 2900–0358.’’ soliciting comments on this collection Send comments and [OMB Control No. 2900–0156] of information was published on recommendations concerning any December 3, 2002, at page 72029. aspect of the information collection to Agency Information Collection Affected Public: State, Local or Tribal VA’s OMB Desk Officer, OMB Human Activities Under OMB Review Government, business or other for- Resources and Housing Branch, New AGENCY: Veterans Benefits profit, and not-for-profit institutions. Executive Office Building, Room 10235, Administration, Department of Veterans Estimated Annual Burden: 24,750 Washington, DC 20503 (202) 395–7316. Affairs. hours. Please refer to ‘‘OMB Control No. 2900– VA Form 22–1999b—13,750. ACTION: Notice. 0358’’ in any correspondence. VA Form 22–1999b Electronically SUPPLEMENTARY INFORMATION: SUMMARY: In compliance with the Filed—11,000. Title: Supplemental Information for Paperwork Reduction Act (PRA) of 1995 Estimated Average Burden Per Change of Program or Reenrollment (44 U.S.C., 3501 et seq.), this notice Respondent: After Unsatisfactory Attendance, announces that the Veterans Benefits VA Form 22–1999b—5 minutes. Conduct or Progress, VA Form 22–8873. Administration (VBA), Department of VA Form 22–1999b Electronically OMB Control Number: 2900–0358. Veterans Affairs, has submitted the Filed—4 minutes. Type of Review: Extension of a collection of information abstracted Frequency of Response: On occasion. currently approved collection. below to the Office of Management and Estimated Number of Respondents: Abstract: Veterans and other eligible Budget (OMB) for review and comment. 9,817. persons may change their program of The PRA submission describes the Number of Responses Annually: education under conditions prescribed nature of the information collection and 330,000. by Title 38 U.S.C., Section 3691. Before its expected cost and burden; it includes VA Form 22–1999b—165,000. VA may approve benefits for a second the actual data collection instrument. VA Form 22–1999b Electronically or subsequent change of program, VA DATES: Comments must be submitted on Filed—165,000. must first determine that the new or before April 7, 2003. Dated: February 13, 2003. program is suitable to the claimant’s

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aptitudes, interests, and abilities, or that DATES: Written comments and By direction of the Secretary. the cause of any unsatisfactory progress recommendations on the proposed Ernesto Castro, or conduct has been resolved before collection of information should be Director, Records Management Service. entering into a different program. VA received on or before May 5, 2003. [FR Doc. 03–5276 Filed 3–5–03; 8:45 am] Form 22–8873 is used to gather the ADDRESSES: Submit written comments BILLING CODE 8320–01–P necessary information only if the on the collection of information to suitability of the proposed training Nancy J. Kessinger, Veterans Benefits program cannot be established from Administration (20S52), Department of DEPARTMENT OF VETERANS information already available in the Veterans Affairs, 810 Vermont Avenue, AFFAIRS claimant’s VA file. NW., Washington, DC 20420 or e-mail: [OMB Control No. 2900–0578] An agency may not conduct or [email protected]. Please refer to sponsor, and a person is not required to ‘‘OMB Control No. 2900–0113’’ in any Proposed Information Collection respond to a collection of information correspondence. Activity: Proposed Collection; unless it displays a currently valid OMB FOR FURTHER INFORMATION CONTACT: Comment Request control number. The Federal Register Nancy J. Kessinger at (202) 273–7079 or Notice with a 60-day comment period AGENCY: Veterans Health FAX (202) 275–5947. soliciting comments on this collection Administration, Department of Veterans SUPPLEMENTARY INFORMATION: of information was published on Under the Affairs. November 15, 2002, at page 69304. PRA of 1995 (Pub. L. 104–13; 44 U.S.C., ACTION: Notice. Affected Public: Individuals or 3501–3520), Federal agencies must households. obtain approval from the Office of SUMMARY: The Veterans Health Estimated Annual Burden: 8,750 Management and Budget (OMB) for each Administration (VHA) is announcing an hours. collection of information they conduct opportunity for public comment on the Estimated Average Burden Per or sponsor. This request for comment is proposed collection of certain Respondent: 30 minutes. being made pursuant to Section information by the agency. Under the Frequency of Response: On occasion. 3506(c)(2)(A) of the PRA. Paperwork Reduction Act (PRA) of With respect to the following Estimated Number of Respondents: 1995, Federal agencies are required to collection of information, VBA invites 17,500. publish notice in the Federal Register comments on: (1) Whether the proposed concerning each proposed collection of Dated: February 13, 2003. collection of information is necessary information, including each proposed By direction of the Secretary. for the proper performance of VBA’s revision of a currently approved Ernesto Castro, functions, including whether the collection for which approval has Director, Records Management Service. information will have practical utility; expired, and allow 60 days for public [FR Doc. 03–5275 Filed 3–5–03; 8:45 am] (2) the accuracy of VBA’s estimate of the comment in response to the notice. This BILLING CODE 8320–01–P burden of the proposed collection of notice solicits comments on information information; (3) ways to enhance the needed to approve requests for quality, utility, and clarity of the preauthorization of certain health care DEPARTMENT OF VETERANS information to be collected; and (4) services and benefits for children of AFFAIRS ways to minimize the burden of the Vietnam veterans. collection of information on DATES: Written comments and [OMB Control No. 2900–0113] respondents, including through the use recommendations on the proposed of automated collection techniques or collection of information should be Proposed Information Collection the use of other forms of information received on or before May 5, 2003. Activity: Proposed Collection; technology. ADDRESSES: Submit written comments Comment Request Title: Application for Fee Personnel on the collection of information to Ann Designation, VA Form 26–6681. Bickoff, Veterans Health Administration AGENCY: Veterans Benefits OMB Control Number: 2900–0113. (193B1), Department of Veterans Affairs, Administration, Department of Veterans Type of Review: Extension of a 810 Vermont Avenue, NW., Affairs. currently approved collection. Washington, DC 20420 or e-mail ACTION: Notice. Abstract: The form solicits information on the fee personnel [email protected]. Please refer to SUMMARY: The Veterans Benefits applicant’s background and experience ‘‘OMB Control No. 2900–0578’’ in any Administration (VBA), Department of in the real estate valuation field. VA correspondence. Veterans Affairs (VA), is announcing an regional offices and centers use the FOR FURTHER INFORMATION CONTACT: Ann opportunity for public comment on the information contained on the form to Bickoff at (202) 273–8310. proposed collection of certain evaluate applicants’ experience for the SUPPLEMENTARY INFORMATION: Under the information by the agency. Under the purpose of designating qualified PRA of 1995 (Pub. L. 104–13; 44 U.S.C., Paperwork Reduction Act (PRA) of individuals to serve on the fee roster for 3501–3520), Federal agencies must 1995, Federal agencies are required to their stations. obtain approval from the Office of publish notice in the Federal Register Affected Public: Individuals or Management and Budget (OMB) for each concerning each proposed collection of households. collection of information they conduct information, including each proposed Estimated Annual Burden: 2,067 or sponsor. This request for comment is extension of a currently approved hours. being made pursuant to section collection, and allow 60 days for public Estimated Average Burden Per 3506(c)(2)(A) of the PRA. comment in response to the notice. This Respondent: 20 minutes. With respect to the following notice solicits comments on applicants’ Frequency of Response: On occasion. collection of information, VHA invites qualifications to become a fee basis Estimated Number of Respondents: comments on: (1) Whether the proposed appraiser to appraise residential real 6,200. collection of information is necessary estate. Dated: February 13, 2003. for the proper performance of VHA’s

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functions, including whether the DEPARTMENT OF VETERANS or sponsor. This request for comment is information will have practical utility; AFFAIRS being made pursuant to section (2) the accuracy of VHA’s estimate of 3506(c)(2)(A) of the PRA. [OMB Control No. 2900–0565] the burden of the proposed collection of With respect to the following information; (3) ways to enhance the Proposed Information Collection collection of information, VBA invites quality, utility, and clarity of the Activity: Proposed Collection; comments on: (1) Whether the proposed information to be collected; and (4) Comment Request collection of information is necessary ways to minimize the burden of the for the proper performance of VBA’s AGENCY: collection of information on Veterans Benefits functions, including whether the respondents, including through the use Administration, Department of Veterans information will have practical utility; of automated collection techniques or Affairs. (2) the accuracy of VBA’s estimate of the the use of other forms of information ACTION: Notice. burden of the proposed collection of technology. SUMMARY: The Veterans Benefits information; (3) ways to enhance the Titles: Health Care for Certain Administration (VBA), Department of quality, utility, and clarity of the Children of Vietnam Veterans—Covered Veterans Affairs (VA), is announcing an information to be collected; and (4) Birth Defects and Spina Bifida and opportunity for public comment on the ways to minimize the burden of the Claim for Miscellaneous Expenses, VA proposed collection of certain collection of information on Health Administration Center, VA Form information by the agency. Under the respondents, including through the use 10–7959e. Paperwork Reduction Act (PRA) of of automated collection techniques or OMB Control Number: 2900–0578. 1995, Federal agencies are required to the use of other forms of information Type of Review: Revision of a publish notice in the Federal Register technology. currently approved collection. concerning each proposed collection of Title: State Application for Interment Abstract: The information collected information, including each proposed Allowance Under 38 U.S.C., Chapter 23, will be used to determine whether to extension of a previously approved VA Form 21–530a. approve requests for preauthorization of collection, and allow 60 days for public OMB Control Number: 2900–0565. certain health care services and benefits comment in response to the notice. This Type of Review: Extension of a for children of Vietnam veterans, and to notice solicits comments on the previously approved collection. make decisions during the review and information needed to determine appeal process concerning health care. eligibility for plot-interment allowance. Abstract: VA Form 21–530a is used by VA Form 10–7959e will be used to DATES: Written comments and a State to file a consolidated application claim payment or reimbursement for recommendations on the proposed for plot or interment allowances for expenses related to birth defects among collection of information should be eligible veterans buried in a cemetery Vietnam Veterans’ children. received on or before May 5, 2003. owned by that State and is used solely Affected Public: Individuals or for the interment of persons eligible for ADDRESSES: Submit written comments households, Business or other for-profit, burial in a national cemetery. on the collection of information to and not for profit institutions. Nancy J. Kessinger, Veterans Benefits Affected Public: State, Local or Tribal Estimated Total Annual Burden: Administration (20S52), Department of Government. 3,400 hours. Veterans Affairs, 810 Vermont Avenue, Estimated Annual Burden: 20,000 Estimated Average Burden Per NW., Washington, DC 20420 or e-mail: hours. Respondent: 5 minutes. [email protected]. Please refer to Frequency of Response: On occasion. Estimated Average Burden Per ‘‘OMB Control No. 2900–0565’’ in any Respondent: 30 minutes. Estimated Number of Respondents: correspondence. 3,600. Frequency of Response: One time. Estimated Total Annual Responses: FOR FURTHER INFORMATION CONTACT: Estimated Number of Respondents: 31,400 Nancy J. Kessinger at (202) 273–7079 or 40,000. FAX (202) 275–5947. Dated: February 13, 2003. Dated: February 13, 2003. SUPPLEMENTARY INFORMATION: Under the By direction of the Secretary: PRA of 1995 (Pub. L. 104–13; 44 U.S.C., By direction of the Secretary. Ernesto Castro, 3501–3520), Federal agencies must Ernesto Castro, Director, Records Management Service. obtain approval from the Office of Director, Records Management Service. [FR Doc. 03–5277 Filed 3–5–03; 8:45 am] Management and Budget (OMB) for each [FR Doc. 03–5278 Filed 3–5–03; 8:45 am] BILLING CODE 8320–01–P collection of information they conduct BILLING CODE 8320–01–P

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Part II

Department of Labor Mine Safety and Health Administration

30 CFR Parts 70, 75, and 90 Verification of Underground Coal Mine Operators’ Dust Control Plans and Compliance Sampling for Respirable Dust; Proposed Rule

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DEPARTMENT OF LABOR 2313, Arlington, Virginia 22209–3939. B. Procedures for Setting the Applicable You may contact MSHA with any Dust Standard When Quartz is Present Mine Safety and Health Administration format questions. Comments are posted 1. Proposed Procedures for public viewing at http:// 2. Validity of Averaging Percentages 30 CFR Parts 70, 75 and 90 C. Respirable Dust Control Program for www.msha.gov/currentcomments.htm. Underground Coal Mines RIN 1219–AB14 Information Collection Requirements 1. Proposed Procedures for Evaluating, Approving, and Monitoring Plan Send written comments on the Verification of Underground Coal Mine Requirements information collection requirements to Operators’ Dust Control Plans and D. Hierarchy of Dust Controls both the Office of Management and Compliance Sampling for Respirable 1. Primacy of Engineering Controls Budget (OMB) and MSHA as follows: 2. Administrative Controls Dust (1) To OMB: If under 10 pages, by 3. Limitations of Engineering Controls 4. Respiratory Protection AGENCY: Mine Safety and Health facsimile (202) 395–6974 to Attn: Desk a. Selection of Respirators: Powered Air- Administration (MSHA), Labor. Officer for MSHA; or by email to: [email protected]. All comments may Purifying Respirators (PAPR) ACTION: Proposed rule; notice of public be sent by mail addressed to the Office b. PAPR Protection Program hearings; close of record. c. PAPR Protection Factor of Information and Regulatory Affairs, E. Guidelines for Determining What is a SUMMARY: This proposed rule Office of Management and Budget, New Feasible Dust Control supercedes the proposed rule published Executive Office Building, 725 17th F. Application of New Technology for by MSHA on July 7, 2000. Under this Street, NW., Washington, DC 20503, Monitoring Coal Mine Dust Levels proposed rule mine operators would be Attn: Desk Officer for MSHA; and IV. Section-by-Section Discussion of required to verify and periodically (2) To MSHA: Comments must be Proposed Rule A. Part 70 monitor, through sampling, the clearly identified as comments on the information collection requirements and B. Part 75 effectiveness of the dust control C. Part 90 parameters for each mechanized mining transmitted either electronically to [email protected], by facsimile to V. Health Effects unit (MMU) specified in the mine A. Introduction ventilation plan. For samples to be (202) 693–9441, or by regular mail or B. Hazard Identification valid, the operator would be required to hand delivery to MSHA, Office of 1. Agent: Coal sample on a production shift during Standards, Regulations, and Variances, 2. Physical State: Coal Mine Dust which the amount of material produced 1100 Wilson Blvd., Room 2313, 3. Biological Action: Respirable Coal Mine by a MMU is at or above the verification Arlington, Virginia 22209–3939. Dust FOR FURTHER INFORMATION CONTACT: C. Health Effects of Respirable Coal Mine production level using only the dust Dust control parameters listed in the Marvin W. Nichols, Jr., Director, Office of Standards, Regulations and 1. Description of Major Health Effects ventilation plan. The use of approved a. Simple Coal Workers’ Pneumoconiosis powered, air-purifying respirators Variances, MSHA; phone: (202) 693– (Simple CWP) and Progressive Massive (PAPRs) and/or verifiable administrative 9440; facsimile: (202) 693–9441; E-mail: Fibrosis (PMF) controls would be allowed as a [email protected]. b. Other Health Effects supplemental means of compliance This proposed rule is also available 2. Toxicological Literature when MSHA determines that all feasible on MSHA’s webpage at http:// 3. Epidemiological Literature engineering or environmental controls www.msha.gov, under Statutory and a. Simple Coal Workers’ Pneumoconiosis Regulatory Information; Federal (Simple CWP) and Progressive Massive are being used. MSHA is also proposing Fibrosis (PMF) to rescind operator compliance Register Documents; Proposed Rules. You can view comments filed on this b. Other Health Effects sampling in underground coal mines. VI. Quantitative Risk Assessment The use of a personal, continuous dust rulemaking at http://www.msha.gov/ VII. Significance of Risk monitor (PCDM), once developed and currentcomments.htm. VIII. Feasibility Issues approved, could be used by an operator SUPPLEMENTARY INFORMATION: A. Technological Feasibility B. Economic Feasibility in conjunction with the dust control I. Table of Contents IX. Preliminary Regulatory Economic parameters specified in the mine II. Background Analysis ventilation plan. The proposed rule A. Procedural History A. Costs and Benefits: Executive Order B. Overview of Proposed Rule would significantly improve miners 12866 health protection by limiting the 1. New Proposed Respirable Dust Sampling Program 1. Compliance Costs exposure of individual miners to 2. Benefits respirable coal mine dust. 2. Verification of Ventilation Plan Effectiveness B. Regulatory Flexibility Certification and DATES: Comments on the proposed rule 3. Measures to Supplement Engineering Regulatory Flexibility Analysis should be submitted on or before June Controls to Reduce Exposures X. Other Statutory Requirements 4, 2003. C. Control of Coal Mine Respirable Dust A. Unfunded Mandates Reform Act of 1995 D. Coal Mine Respirable Dust Task Group B. Paperwork Reduction Act of 1995 MSHA also is announcing that the C. National Environmental Policy Act Agency will hold public hearings on the E. NIOSH Criteria Document F. Advisory Committee on the Elimination D. Executive Order 12630: Governmental proposed rule. The hearing dates and of Pneumoconiosis Among Coal Mine Actions and Interference with times will be announced by a separate Workers Constitutionally Protected Property document in the Federal Register. III. General Discussion Rights ADDRESSES: Comments must be clearly A. Proposed Reforms to the Respirable E. Executive Order 12988: Civil Justice identified as such and transmitted either Dust Monitoring Program Reform F. Executive Order 13045: Protection of electronically to [email protected], a. Compliance Sampling b. Abatement Sampling Children from Environmental Health by facsimile to (202) 693–9441, or by c. Operator Verification Sampling and Risks and Safety Risks regular mail or hand delivery to MSHA, Quarterly Sampling G. Executive Order 13175: Consultation Office of Standards, Regulations, and d. Advantages of MSHA Sampling Over the and Coordination with Indian Tribal Variances, 1100 Wilson Blvd., Room Existing Program Governments

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H. Executive Order 13132: Federalism for further public comment, the rule sampling must take place over the entire I. Executive Order 13211: Energy which is the subject of this rulemaking. production shift. J. Executive Order 13272: Proper The dust control parameters specified Consideration of Small Entities in B. Overview of Proposed Rule in mine ventilation plans must be Agency Rulemaking XI. Public Hearings In preparing this proposed rule, designed to maintain dust Appendix A. Derivation of the Critical MSHA has responded to comments that concentrations at or below the Values were made to the July 7, 2000 proposed applicable standard on each shift. If Appendix B. Model Powered Air-Purifying rule. However, since this proposed rule during the initial verification sampling, Respirator (PAPR) Program differs from the earlier proposed rule in the VPL is achieved and dust Appendix C. Citation Threshold Values several areas, the agency may not have concentrations are sufficiently low, the (CTV) addressed each concern that was district manager could approve a plan Appendix D. References based on one shift of sampling. Appendix E. Supplemental References identified by the earlier commenters. XII. Regulatory Text MSHA believes that the proposed rule However, if dust concentration would significantly improve miners’ measurements are higher, or if the II. Background health protection from the debilitating actual production was less than the A. Procedural History effects of occupational respiratory VPL, MSHA will require the operator to sample additional shifts. All verification On July 7, 2000, the Mine Safety and disease by limiting their exposures to respirable coal mine dust to no more samples would be submitted to MSHA Health Administration published a for analysis. However, mine operators Notice of Proposed Rulemaking (NPRM) than the applicable dust standard on each shift.1 Accordingly, this proposed would not be cited if sample results in the Federal Register: Verification of show an overexposure so long as the Underground Coal Mine Operators’ Dust rule revises 30 CFR part 70, subparts A, B, and C; amends two existing sections operator takes steps to identify and Control Plans and Compliance Sampling correct the condition that caused the for Respirable Dust (65 FR 42122). A of part 75; and revises part 90, subparts A, B, C, and D. verification limit to be exceeded. notice of public hearing and close of Also, to confirm the continued record was also published in the Under this proposed rule, MSHA effectiveness of the plan parameters, Federal Register (65 FR 42186) on July would be responsible for all compliance mine operators would be required to 7, 2000. During August 2000, three and abatement sampling, which is sample quarterly each producing MMU public hearings were conducted in currently being carried out by the designated by MSHA under the same Morgantown, West Virginia; operator. This includes frequent conditions that were in place when the Prestonsburg, Kentucky; and Salt Lake sampling of each mechanized mining plan parameters were initially verified. City, Utah. Transcripts of those unit (MMU) and part 90 miner, As in the earlier proposed rule, mine proceedings were made available to the sampling of outby Designated Areas operators would be required to maintain public. The close of the rulemaking (DAs) and occupations, and abatement records of the total amount of material record was originally scheduled for sampling. This proposed rule specifies produced by shift for each MMU. August 24, 2000. In response to requests that compliance and abatement In the earlier proposed rule, from commenters, an extension of the determinations will be based on the commenters expressed concern about a comment period for the NPRM was results of single samples. Also, only provision in the July 7, 2000 proposed published in the Federal Register (65 MSHA samples would be used to set a rule allowing the use of supplementary FR 49215) on August 11, 2000; the reduced dust standard when the quartz controls (powered, air-purifying rulemaking comment period was content of the respirable dust exceeds respirators (PAPRs) and administrative extended to September 8, 2000. five percent. controls), on an interim basis, in mines Supplementary statements and data In response to comments raised in the utilizing longwall mining technology. postmarked on or before the close of the earlier proposed rule, mine operators Commenters offered a wide range of record, September 8, 2000, were will continue to play a role in opinions on this part of the proposed included in the rulemaking record and monitoring the mine environment. The rule. Some commenters supported made available to the public. proposed rule requires each MSHA’s decision to allow the use of Many commenters on the proposed underground operator to verify, through supplementary controls, but criticized rule urged MSHA to withdraw the sampling, that the dust control the proposed rule for being too proposed rule and publish another. In parameters specified in a mine restrictive. Other commenters objected their opinion, the agency failed to ventilation plan are effective in to the proposed provision, claiming that adequately address the concerns of mine controlling the concentration of the requirement was inconsistent with operators and ignored other reforms in respirable coal mine dust and quartz the provision of the Mine Act which the dust sampling program urged by dust at or below the verification limits prohibits respirators to be used as coal miners since the mid 1970s or that of 2.0 mg/m3 and 100 µg/m3 substitutes for engineering controls. were recommended by the Secretary of respectively. For a sample to be valid for These commenters were also concerned Labor’s Advisory Committee on the verification purposes, the amount of that operators would have no incentive Elimination of Pneumoconiosis Among material produced must be at or above to implement available engineering Coal Workers (Dust Advisory the ‘‘verification production level’’ or controls once they are permitted to use Committee) and the NIOSH Criteria VPL. The VPL is defined as the tenth supplementary controls as proposed. Document addressing respirable coal highest production level recorded in the This proposed rule recognizes that mine dust. most recent 30 production shifts. In there may be circumstances where, even After carefully considering all the addition, the engineering or after implementing all feasible facts, issues, and concerns raised by environmental control parameters must engineering or environmental controls, a commenters during this rulemaking, not exceed 115% of the quantities mine operator may be unable to MSHA concluded that, to proceed to a specified in the ventilation plan and the maintain concentrations at or below the final rule would not be in the best verification limits. This includes interest of miners’ health or the mining 1 For details, see the Quantitative Risk operations that employ longwalls or community. The Agency is re-proposing Assessment and Significance of Risk Sections. other mining systems. In those

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instances, the proposed rule would 1. New Proposed Respirable Dust 2. Verification of Ventilation Plan allow a mine operator, with the Sampling Program Effectiveness approval of the Administrator of Coal In order to improve miner confidence The proposed rule requires that each Mine Safety and Health, to use either in the respirable dust sampling program, underground coal mine operator must PAPRs or administrative controls or a the proposed rule revises the existing have a mine ventilation plan verified by combination of both to supplement operator sampling requirements for operator sampling. The verified plan engineering or environmental controls underground mines and for part 90 must be effective in controlling to reduce the dust exposure of miners under 30 CFR parts 70 and 90, respirable dust in each MMU under individual miners. Approval to use respectively, and provides that MSHA typical mining conditions prior to supplementary control measures would conduct compliance and abatement approval of the plan by the district be contingent on the mine operator sampling. manager. In addition, mine operators adopting new engineering and would be required to sample quarterly environmental controls when they This proposed rule would result in fewer shifts being sampled than under each producing MMU designated by become available. The proposed rule existing requirements. However, MSHA MSHA to determine if the dust control also recognizes that there may be special believes that the amount of sampling it measures specified in the approved situations that occur intermittently and will conduct under the proposed rule ventilation plan, continue to protect for short periods of time where the will be more protective because a miners from overexposure. No citations approved dust control measures may greater number of individual would be issued to mine operators not protect miners from overexposure. compliance determinations would be based on the results of this sampling as An example would be where the made. MSHA samples the Designated long as the operator takes steps to operator is required to mine through a Occupation (DO) and at least four other eliminate the conditions which caused rock parting with high quartz content. In occupations, if available, on each any overexposure identified through these situations, the district manager sampling inspection. Also, since all such sampling. Consistent with the Mine Act and its may allow the operator to use PAPRs for MSHA sampling is unannounced, implementing regulations, this proposed a period not to exceed 30 calendar days. sampling will occur under conditions rule preserves the primacy of This proposed rule would require that that are more typical of the actual engineering controls to the extent that the mine operator provide a copy of any mining environment. In addition, they are technologically and request for supplemental controls to the compliance determinations would be economically feasible. based solely on a single-sample representative of the miners. This would The dust control parameters specified measurement and not on an average of provide an opportunity for miners’ in the mine ventilation plans should be multiple shift measurements. Multiple input prior to MSHA making any designed to control respirable dust and shift measurements can mask determination. prevent overexposures on individual overexposures by diluting a A full discussion of these and other shifts. These plans should accurately measurement of high dust exposure provisions is provided in the section-by- reflect the engineering or environmental with lower measurements made on section analysis of this proposed rule. controls that are suitable to the mining different shifts or at different system and operating conditions at the A number of commenters stated that occupational locations. MSHA’s earlier proposed rule was MMU. Commenters to the July 7, 2000 Under the proposed rule, the mine incomplete because it did not address proposed rule also criticized MSHA for some key recommendations of by the operator will collect respirable dust failing to fully incorporate the preamble samples to demonstrate the adequacy of Dust Advisory Committee, and by discussion on the Agency’s sampling NIOSH in its Criteria Document (see the dust control parameters specified in procedures into the proposed regulation the mine ventilation plan in sections II.E. and II.F. of the preamble). to prevent those procedures from being Some of these commenters expressed maintaining the concentration of changed or modified in the future. respirable coal mine and quartz dust at concern that the proposed rule failed to MSHA does not believe that it would be recognize and consider alternatives or below the ‘‘verification limits’’ of 2.0 appropriate to incorporate agency mg/m3 µ 3 involving continuous dust monitoring and 100 g/m , respectively. The enforcement procedures into rules that adequacy of the dust control parameters technology. Since publication of that are designed to regulate the mining must be demonstrated on shifts during earlier proposed rule, technology has industry. It is necessary for MSHA to which the amount of material produced advanced to a point that will likely retain the ability to modify its is at or above the ‘‘verification allow for continuous monitoring of dust enforcement policies and procedures in production level’’ (VPL) or the tenth exposures in the near future. response to, among other things, case highest production level recorded in the Accordingly, this proposed rule has law, new health or safety concerns, most recent 30 production shifts, and provisions that would allow mine major mine emergencies, or changes in using only the engineering or operators to adopt such technology to technology which may require the environmental control parameters meet the requirements for operator agency to redirect its efforts to protect proposed in the ventilation plan, at monitoring of dust control effectiveness miner health and safety. levels not exceeding 115 percent of the and miner exposure. In order to provide the mining quantities specified in the plan. The recommendations regarding community with an understanding of The proposed rule would require exposure limits for respirable coal mine how the agency intends to enforce this mine operators to: (a) Set and maintain dust and crystalline silica were beyond proposed rule, MSHA has published a the dust control parameters during the scope of either the single sample or draft of Chapter 1 (Respirable Dust) of verification sampling at levels specified plan verification rules. In the interim, MSHA’s health inspection procedures in the plan; (b) maintain and make MSHA enforcement efforts continue to (see http://www.msha.gov) which it available to MSHA records of the focus on lowering the quartz exposure intends to adopt as its enforcement amount of material produced by each of miners as recommended by the Dust strategy when the final rule becomes mechanized mining unit during each Advisory Committee. effective. production shift; (c) provide additional

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information in mine ventilation plans Although MSHA does not enforce a production of material.’’ The plan such as the VPL, shift length, etc.; and separate standard for respirable quartz provides a description of the specific (d) provide the miners’ representative dust, the formula (10 divided by the engineering control measures in use. the opportunity to participate in the percentage quartz) used to establish an The plan also contains procedures for plan verification process. applicable dust standard, in effect, maintenance of specific dust control During sampling to secure plan limits respirable quartz concentrations equipment, such as scrubbers, dust approval, the district manager could to 100 µg/m3 (as an MRE equivalent). collectors on roof bolters, and spray approve a plan based on one shift of Consistent with the Mine Act and nozzles, or for the replacement of sampling if the VPL is achieved, and MSHA regulations, the primary focus of cutting picks to minimize dust respirable dust concentrations are the federal respirable dust program is on generation. Once approved by the sufficiently low. However, if dust controlling the concentrations of district manager, the dust control concentration measurements are higher, respirable dust in the environment parameters must be employed on a or if the actual production was less than where miners work or travel through the continuous basis to provide protection the VPL, the mine operator would be application of feasible engineering or from the hazards of respirable dust to required to sample additional shifts. environmental control measures. coal miners. By insuring that the Engineering or environmental controls 3. Measures To Supplement Engineering parameters are being maintained on for respirable dust in the mine Controls to Reduce Exposures each production shift, miners can be environment are the proven dust-control assured that respirable dust levels are Under the proposed rule, if a techniques and the principal methods being adequately controlled without the ventilation plan cannot be verified using for protecting miners’ health. These need to continuously monitor respirable all feasible engineering or include all methods for controlling the dust levels in the mine environment. environmental controls, the mine quantity of respirable dust in the air that Implementing dust control parameters operator may be permitted to use either a miner breathes by either reducing dust that have been determined effective powered, air-purifying respirators generation, or by suppressing, diluting, under typical mining conditions, and (PAPRs) or verifiable administrative capturing, or diverting the dust that is maintaining these controls in proper controls, or a combination of both, as a being generated by the mining process. working order, provides reasonable supplemental means of control (see Under the Mine Act, the mine operator assurance that no miner will be section III.D. Hierarchy of Dust has primary responsibility for overexposed. Because technology that Controls). MSHA may, under certain implementing a program to control continuously monitors respirable dust conditions, approve such use only after respirable dust so that all miners work and displays dust concentrations in the Administrator for Coal Mine Safety in an environment free of excessive real-time is not yet available for use in and Health has determined that all levels of respirable dust. Mine operators underground coal mines, the feasible engineering or environmental must develop, implement, and maintain implementation of effective ventilation controls have been adopted in the effective measures to control the level of plans is the only practical means of ventilation plan, but miners continue to respirable dust in the mine reasonably ensuring, on a continuous be at risk of overexposure. District environment, and evaluate these control basis, that miners are not overexposed. managers may also approve the use of measures at regular intervals to ensure supplementary controls for limited that they function as intended. These In 1996, MSHA implemented revised periods of time when unusual or control measures, or ‘‘dust control ventilation standards which, among intermittent adverse conditions could parameters,’’ are required to be specified other provisions, required an on-shift result in miners not being fully in the dust control portion of the examination of the dust control protected by the approved dust control operator’s mine ventilation plan under parameters before coal production plan. § 75.370. begins on each MMU to assure These and other provisions of the Mine ventilation plans are a long- compliance with the dust control proposed rule are explained in more recognized means of addressing health parameters specified in the ventilation detail in the Section-by-Section issues that are mine-specific and for plan. Based on the recommendations of Discussion of this preamble. achieving work environments that are MSHA’s Coal Mine Respirable Dust free of excessive concentrations of Task Group (MSHA, 1992), this C. Control of Coal Mine Respirable Dust respirable dust. Currently, section requirement is intended to focus Maintaining a work environment free 75.370 requires each operator of an attention on the need for properly of excessive levels of respirable coal underground coal mine to develop and functioning dust controls before mine dust and quartz dust (hereafter follow a ventilation plan that is production begins. On-shift referred to as ‘‘respirable dust’’) is designed to control methane and examinations of dust control parameters essential for long-term health respirable dust in the mine. The plan under existing § 75.362 are one protection. Section 202(b)(2) of the must be suitable to the conditions and important component for an effective Federal Mine Safety and Health Act of mining systems employed at the mine. respirable dust control strategy. Recent 1977 (Mine Act) requires each operator Although ventilation plans must be advances in technology make it feasible to continuously maintain the average designed to control respirable dust, to continuously monitor certain concentration of respirable dust in the there has been no requirement that the parameters, such as air quantity and mine atmosphere, during each shift to plan’s effectiveness be verified. velocity and spray water flow rate and which each miner in the active The dust control portion of the mine pressure (Spencer, et al. 1996). Existing workings of such mine is exposed, at or ventilation plan is a key element of the §75.362 encourages the use of such below 2.0 milligrams of respirable dust operator’s strategy to control respirable monitors as it would eliminate the need per cubic meter of air (mg/m3). Under dust in the working environment of for periodic physical measurements of the Mine Act and the implementing each mechanized mining unit (MMU) some dust controls to verify if they are regulations, when respirable coal mine during each shift. Existing section 70.2 operating properly. Although current dust contains more than five percent defines, in part, a MMU to mean ‘‘a unit technology allows real-time data to be quartz, the applicable dust standard is of mining equipment, including hand obtained on certain dust control further reduced by means of a formula. loading equipment, used for the parameters such as air quantities,

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MSHA is not aware of its use by any addition, in November 1995, NIOSH complying with the approved plan. operator. issued a criteria document that Although several plans indicated that Since establishment of the first contained recommendations to improve the mining equipment was to be comprehensive dust standards in 1969, miner health protections. provided with water sprays, the plan the implementation of ventilation plans did not specify the location of the D. Coal Mine Respirable Dust Task by mine operators and their sprays or the water pressure at the spray Group enforcement by MSHA has had a nozzle. significant impact on control of dust In response to concerns about the Currently, MSHA relies on levels in underground coal mines. For Federal coal mine dust program (MSHA, information provided by the operator to example, based on federal mine 1992), MSHA’s Task Group undertook determine at what production level the personnel sampling results, the average an extensive review of the program to plan should be evaluated. No dust concentration in the environment control respirable coal mine dust and production records are required for each of a continuous miner operator made recommendations to improve the MMU. Although operators must submit (occupation code—036) has been program in 1991. As part of that review, production data on a quarterly basis, the reduced by 87 percent over the past 32 MSHA developed a special respirable data is compiled for the entire mine. In years, from 7.7 mg/m3 to approximately dust ‘‘spot inspection program’’ (SIP). addition, these quarterly reports provide 1.0 mg/m3. This accounts for the This program was designed to provide information on the amount of clean coal significant decline in the percentage of the Agency and the Task Group with produced, which are much lower than operator continuous miner designated information on the dust levels to which the tonnage of total material produced, occupation (DO) samples with underground miners are typically and are not useful for establishing what concentrations of 2.1 mg/m3 or higher, exposed. constitutes ‘‘normal production shifts’’ from 49 percent (over 32,000 samples/ The Task Group found that MSHA’s for sampling purposes. shifts) in 1971, to 7 percent (over 1,250 current program did not promote the The Task Group determined that the samples/shifts) during the first three development and implementation of use of low production levels for quarters of 2002. Analysis of all valid quality plans. Based on its review of a evaluating the effectiveness of dust operator DO samples collected during representative number of dust control control parameters can result in the same time period as above indicates plans, the Task Group found that some marginal or inadequate plans. Therefore, that in 1971, 53,463 (44 percent) of the plans lacked specificity or did not the Task Group recommended that 122,404 shifts sampled, were at or above include all the dust control parameters MSHA require mine ventilation plans to 2.1 mg/m3, compared to 1,450 (7 actually used. For example, the plans be effective under typical mining percent) of the 19,336 shifts sampled in for three major underground coal mines conditions. A more detailed discussion 2002 (MSHA, DO Samples by Calendar listed the air quantity, the primary of the impact of production on the Year, 2002). Despite this progress, means of controlling concentrations of quality of dust control parameters MSHA has found evidence that a respirable coal mine dust, to be 18,000 specified in mine ventilation plans is significant number of overexposures cubic feet per minute (cfm) in the contained in sections III.C.1. and IV.B. still occur on the shifts sampled during mining section. The actual quantities of this preamble. which the approved dust control measured by MSHA samples at these A survey conducted by MSHA in parameters are operating at or above mines during the SIP varied from 40,000 August of 2002 found that 48 percent of approved levels. This evidence suggests cfm to over 120,000 cfm. producing MMUs worked at least a 9- that it is highly probable that some Based on a review of MSHA Form hour shift. The Task Group concluded miners are overexposed to respirable 2000–86 (Revised), Respirable Dust that current regulations limiting the dust on shifts not sampled by either the Sampling and Monitoring Data, similar duration of sampling to eight hours do operator or by MSHA. In addition, differences were found between air not provide for adequate assessment of recent medical surveillance data quantities specified in approved respirable dust exposure during suggests that miners continue to be at ventilation plans and the levels nontraditional shifts of more than eight risk of developing simple coal workers’ observed at a number of longwall MMUs hours. pneumoconiosis (CWP), progressive inspected in 1999. For example, 20 of Implementation of the Task Group massive fibrosis (PMF), and silicosis the 47 longwall MMUs were using recommendations would have required (Elam, April 1999). significantly more air than specified in regulatory change. The effort to Two expert panels, that reviewed the the ventilation plan (MSHA, September implement these changes was federal program designed to prevent 1999). Under these circumstances, it suspended pending the deliberations pneumoconiosis among coal miners, would be impossible to assess whether and recommendations of the Advisory found that certain aspects of the current the air volume specified in the plan was Committee on the Elimination of respirable dust program limit MSHA’s adequate to maintain dust Pneumoconiosis Among Coal Mine ability to determine the adequacy of the concentrations at or below the Workers, which was convened in 1995. dust control parameters under typical applicable dust standard. It should be mining conditions. Both the Coal Mine noted that air quantities, air velocities, E. NIOSH Criteria Document Respirable Dust Task Group, (Task water spray pressures, and other control On November 7, 1995, MSHA Group) an interagency task group parameters, specified in the plan are received the document, Criteria for a established in 1991 by the Assistant considered to be minimum Recommended Standard: Occupational Secretary for Mine Safety and Health, requirements and MSHA encourages Exposures to Respirable Coal Mine Dust, and the Advisory Committee on the mine operators to exceed their plan (Criteria Document) from the National Elimination of Pneumoconiosis Among parameters, but only after the levels Institute for Occupational Safety and Coal Mine Workers, (Dust Advisory specified in the plan have been shown Health (NIOSH). That document Committee) established in 1995 by the to be effective under the conditions in contains recommendations to minimize Secretary of Labor, considered all effect during sampling. In addition, a the health risks encountered by surface aspects of the respirable coal mine dust lack of specificity in some plans made and underground coal miners due to control program and made it difficult for MSHA samples to their occupational exposure to recommendations for improvement. In determine whether the operator was respirable coal mine dust and

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crystalline silica, hereafter referred to as efforts to reduce exposures to respirable respirable coal mine dust and 100 µg/m3 ‘‘quartz.’’ coal mine dust below the exposure for respirable quartz dust, under typical According to NIOSH, limit. mining conditions. MSHA expects that • By means of criteria documents, NIOSH MSHA should not make an upward most ventilation plans will be verified at communicates these recommended standards adjustment of the exposure limit to or below those values. Therefore, for to regulatory agencies (including the account for measurement uncertainties most mechanized mining units (MMUs), Occupational Safety and Health (i.e., citation threshold values (CTV)). engineering controls will be in place Administration (OSHA) and MSHA) and to (See section III.A.4.a.). that can control respirable coal mine others in the community of occupational • Continuous monitoring devices dust at or below the exposure limit. (See safety and health * * *. In addition to should be developed for use in sampling chapter IX. Costs in the Preliminary transmitting these documents to the respirable coal mine dust. Regulatory Economic Analysis (REA) for Department of Labor, NIOSH also distributes • Sampling frequency should be them to health professionals in academic details). institutions, industry, organized labor, public enough that a significant and Citation threshold values (CTV) are interest groups, and other government deleterious change in the contaminant calculated to ensure that citations are agencies. (NIOSH, 1995, p. iii). generation process or exposure controls issued only when a single sample Pursuant to the Mine Act, MSHA was is not permitted to persist. measurement demonstrates, with at MSHA has carefully considered the required to issue a public response to least 95-percent confidence, that the applicability of each NIOSH this criteria document within 60 days. applicable dust standard had been The statutory deadline for MSHA’s recommendation to reduce miners’ exceeded.2 Thus, before issuing a response fell on January 7, 1996. In the exposure to respirable coal mine dust, citation, the Secretary requires a high fall of 1995, there was a lapse in funding and the agency has integrated these level of confidence that there has been for the Federal government, and the recommendations into our programs, an overexposure. Even so, a dust Department of Labor was unable to take policies, and promulgation of standards. concentration measurement that falls timely action on this matter (61 FR 731). The proposed rule published today are, between the applicable dust standard On April 25, 1996, MSHA published its in part, responsive to NIOSH’s and the corresponding CTV does not response to the Criteria Document in the recommendations. demonstrate that the sampled Federal Register (61 FR 18308) stating For example, the single sample rule, environment is in compliance. MSHA it would develop its regulatory response for which the record is reopened in would identify such environments for to the Criteria Document in conjunction today’s Federal Register notice is further sampling to determine if with its response to the outcome of the responsive to the Criteria Document. engineering controls are adequately Dust Advisory Committee. (See section This rule was jointly developed with protective. II.F.). NIOSH. As mentioned earlier, several Some commenters criticized the The two recommendations regarding commenters to the 2000 proposal earlier proposed rules for not addressing exposure limits for respirable coal mine expressed concern that, under MSHA’s all the recommendations of the Criteria dust and quartz dust are beyond the proposed sampling program, the Document. During the August 2000 scope of either the single sample or plan number of shifts to be sampled would hearings when these comments were verification proposed rules. be less than under the current operator made, a NIOSH representative stated, MSHA and NIOSH agree that the level and MSHA sampling programs ‘‘* * * strong steps are necessary * * * of ‘‘coal production significantly affects combined. Although MSHA will sample oftentimes they do need to be the amount of airborne respirable coal fewer shifts than what was incremental in nature.’’ Among the mine dust’’ (NIOSH 1995, p. 86). NIOSH recommended by the Dust Advisory relevant recommendations from the recommended that ‘‘The mine operator, Committee, the number of compliance Criteria Document raised by therefore, should establish a production- determinations per MMU will not commenters were the following: level threshold to ensure that exposure decrease. Under the existing sampling • Sampling should be conducted with conditions are comparable between programs, each MMU averages 10 a device that operates in accordance sampled and unsampled shifts’’ compliance determinations per year.3 with NIOSH Accuracy Criteria (NIOSH, 1995, p. 86). NIOSH Each of these compliance Document, using the international recommended that, for a production determinations is based on the average definition of respirable dust. shift to be considered a normal • Single-shift measurements should production shift, it must produce at 2 CTVs are listed in Table 70.2 be used to determine noncompliance. least 80% of the average production, 3 Currently, six of the ten compliance • The exposure limit for respirable over the last 30 production shifts. determinations are based on the average of five coal mine dust should be limited to 1.0 Through this plan verification operator, ‘‘designated occupation’’ (DO) exposure 3 proposed rule, MSHA would require measurements. Each of these measurements is mg/m as a time-weighted-average collected on a different shift within a bimonthly (TWA) concentration for up to 10 hours operators to design their ventilation cycle. The remaining four determinations are based per day, during a 40-hour workweek. plan to be effective in controlling on the average of five inspector samples taken • There should be a gravimetric respirable coal mine dust at or above the quarterly on different occupations from a MMU. standard for silica of 0.05 mg/m3 as a ‘‘verification production level’’ (VPL). Since the publication of the earlier proposed rule, the number of yearly MSHA sampling inspections TWA for up to 10 hours per day, for a The VPL is defined as the tenth highest at each MMU was reduced from six to four. This 40-hour workweek. production level recorded in the most was the result of the impact on Agency resources • Sampling goals should include recent 30 production shifts. This due to a decision by the Federal Mine Safety and determining the effectiveness of a dust quantity generally exceeds the Health Review Commission that violations of the applicable dust standard must be based on samples control system and determining production criteria recommended by taken on multiple shifts. Prior to that decision, compliance with exposure limits to NIOSH by a substantial amount. MSHA compliance decisions were based on ensure that exposure conditions are In addition, for MSHA to approve an multiple samples taken on a single-shift. comparable between shifts which are operator’s mine ventilation plan, the Accordingly, there has been a need to increase the sampled and those which are not. plan’s dust control parameters must be number of shifts of MSHA sampling at MMUs • where overexposures are found on the first Engineering controls and work shown to be effective in meeting the sampling shift. This results in fewer sampling practices should reflect reasonable verification limits of 2.0 mg/m3 for inspections being available at other MMUs.

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of five 8-hour exposure measurements. effects of occupational respiratory being carried out by mine operators (See III.A.2. Post-1980 Sampling disease by limiting their exposures to under 30 CFR parts 70 and 90. Program). Under this proposed rule, the applicable dust standard through the The November 1996 Dust Advisory each MMU will average significantly implementation of the single sample Committee Report recommended more compliance determinations rule which conforms to the NIOSH numerous improvements for the federal annually using the results of single Accuracy Criteria. Furthermore, as program to protect miners from simple sample measurements taken by MSHA stated by NIOSH during the hearings: CWP, PMF, and silicosis. Of these, the 4 following have been incorporated in this personnel (30 CFR 70.202). This NIOSH does support efforts by MSHA and increase does not reflect the additional anyone else that will reduce miners’ proposed rule: compliance determinations that will be exposures to dust and silica dust and also 1. MSHA will take full responsibility made as a result of sampling, eliminate or at least reduce significantly the for all compliance sampling (periodic concurrently with MMUs, each intake incidence of the diseases * * *. and abatement) at a level which ensures that representative samples are collected DA, roof bolter DA and outby MSHA believes that this proposed occupations. of respirable dust exposures under usual plan verification rule provides an conditions of work without adversely The new sampling program will be far improved program for measuring, more effective in monitoring the quality impacting the Agency’s resources and monitoring, and reducing overexposures responsibilities. of the mine air that miners must to respirable coal mine dust and quartz breathe, and in preventing 2. Operators would be required to dust, under typical mining conditions. verify, through sampling, the overexposures on individual shifts, As such, it greatly advances the level of because MSHA will be making effectiveness of the dust controls in the health protection afforded underground ventilation plan prior to approval by compliance determinations using miners and is consistent with measurements that are more MSHA. The plan must be verified recommendations issued by NIOSH in utilizing only those controls that are representative of the dust its Criteria Document. concentrations to which miners are listed in the plan. In addition, mine exposed on individual shifts. As such, F. Advisory Committee on the operators would sample designated MSHA believes the new MSHA Elimination of Pneumoconiosis Among MMUs quarterly to ensure that the dust sampling program addresses the NIOSH Coal Mine Workers controls continue to protect miners from recommendation that sampling be overexposure. On January 31, 1995, the Secretary of 3. MSHA will redefine the range of conducted ‘‘frequently enough that a Labor established the Advisory production levels which must be significant and deleterious change in the Committee on the Elimination of maintained during sampling to verify contaminant generation process or Pneumoconiosis Among Coal Mine the plan. The value will be sufficiently exposure controls is not permitted to Workers (Dust Advisory Committee). close to maximum anticipated persist’’ (NIOSH, 1995, p. 85). The Dust Advisory Committee was Significant progress in monitoring production levels in order to reasonably chartered to ‘‘make recommendations ensure that the plan is effective under technology has been made since MSHA for improving the program to control published the earlier proposed rule on typical operations. respirable coal mine dust in 4. MSHA will review compliance and plan verification. The agency has been underground and surface mines in the production records to determine when informed by NIOSH that a continuous United States.’’ The Dust Advisory there is a need for plan verification and dust monitor may be available for in- Committee identified and addressed modification. mine use by the middle of 2004. many of the same issues considered by 5. MSHA would allow mine operators Accordingly, as recommended in the the Task Group. Findings and consensus to use newly developed technology to criteria document, MSHA is proposing a recommendations were developed for continuously monitor the work new standard that would permit each issue (MSHA, 1996). The Dust environment and prevent overexposures operators to use this new technology in Advisory Committee concluded that the on individual shifts. conjunction with existing dust controls dust control portion of the mine This proposed rule is intended to specified in the ventilation plan to ventilation plan is the key element of an eliminate overexposures on individual prevent overexposures on individual operator’s strategy to control respirable shifts and to restore the confidence of shifts. dust in the work environment. They miners and mine operators in the Today’s proposed rule does not adopt concluded that the initial evaluation, respirable coal mine dust sampling all the Criteria Document approval, in-mine verification and program by addressing the shortcomings recommendations since many of the monitoring to demonstrate the identified by the Task Group and the recommendations are outside the scope effectiveness of the operator’s proposed Dust Advisory Committee in the current of these rules. However, MSHA dust control plan is critical for the respirable coal mine dust program. This continues to be committed to the protection of miners from lung disease. proposed rule would revise the operator principles that ‘‘preventive efforts Also, believing that the credibility of the dust sampling programs under 30 CFR [must] be focused primarily on reducing current system of mine operator parts 70 and 90 and require the work exposures (NIOSH, 1995).’’ implementation of mine ventilation The Secretary of Labor and the sampling to monitor compliance with plans demonstrated to be effective in Secretary of Health and Human Services exposure limits has been severely maintaining respirable dust at or below believe that miners’ health will be compromised, the Dust Advisory applicable dust standards on each shift. further protected from the debilitating Committee concluded that restoration of miner and mine operator confidence in These ventilation plans will be verified 4 On a re-occuring basis MSHA will sample an the respirable coal mine dust sampling through sampling by the mine operator, average of five different occupations on each program should be one of MSHA’s and the plans’ effectiveness may be producing MMU. Since every measurement will be highest priorities. Accordingly, there monitored on a quarterly basis by the compared with the CTV corresponding to the was unanimous agreement that in order operator. MSHA intends to periodically applicable dust standard in effect, MSHA will be making significantly more compliance to restore confidence in the program monitor operator verification sampling determinations yearly than under the current MSHA should take full responsibility and on a recurring basis will conduct operator and MSHA sampling programs combined. for all compliance sampling currently sampling on each MMU to assure

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compliance with the provisions of the MSHA has clarified in this proposed and abatement sampling) in a manner ventilation plan and the applicable dust rule that the Secretary will cite for that it believes will be more protective standard. A notice reopening the record overexposure when an MSHA sample than the current operator sampling regarding the use of single-shift sample demonstrates that the applicable dust program. MSHA intends to monitor measurements of respirable coal mine standard has been exceeded, based on miners’ dust exposure and compliance dust to determine average concentration the citation threshold value (CTV). In with the dust control provisions of the is also published in today’s Federal response to concerns that, by using a approved mine ventilation plan, or with Register. CTV, MSHA is increasing the standard, the respirable dust control plan for a MSHA recognizes that the Dust MSHA has clarified that respirable dust Part 90 miner at underground mines, in Advisory Committee made several concentration levels must always be accordance with the procedures and recommendations that also impact on maintained at or below the applicable guidelines established in Chapter 1 of surface coal mine workers. These dust standard. In order to obtain the Coal Mine Health Inspection surface coal mine issues are beyond the ventilation plan approval from MSHA, Procedures Handbook. scope of this proposed rule and will be operators must demonstrate that the (a) Compliance Sampling addressed by the Agency at a later date. dust control parameters adequately In response to comments received, prevent excessive dust concentrations MSHA will routinely collect samples MSHA has specifically stated in this on individual shifts. The plan’s from the working environment of the proposed rule that the representative of effectiveness is evaluated against the DO, Part 90 miners and, if available, four or more other occupations working miners has the right to observe MSHA applicable dust standard itself—not the in each producing MMU. The data from sampling with no loss of pay as CTV—and must be demonstrated at a this sampling will be utilized by MSHA recommended by the Dust Advisory high level of confidence. to formulate an effective compliance Committee. The proposed rule also This proposed rule also provides for sampling strategy that focuses on the allows the miners’ representative the the limited use of measures to performance of individual sampling opportunity to participate in operator supplement engineering or entities and to target MMUs for operator sampling to verify the ventilation plan. environmental controls for exposure quarterly sampling. The strategy will be However, such participation would be control. These supplemental measures detailed in the Agency’s respirable dust with no loss of pay, only when MSHA would be permitted at certain times when the Administrator for Coal Mine inspection procedures. personnel are present to observe that Each DA inby the section dump point, Safety and Health has determined that sampling. This proposed rule does not such as intake and roof bolter DAs, and all feasible engineering and specifically address the committee’s other DAs that can be sampled environmental controls have been recommendations concerning concurrently with the MMU will also be applied and the mine operator is unable specialized miner training on sampled routinely. If the MMU sampled to verify the ventilation plan. verification sampling procedures. is operating with approved Supplementary controls may also be However, MSHA does intend, during supplemental control measures, the five approved by MSHA for short-term use the implementation of any final rule, to or more occupations sampled will provide training to miners, miners’ to protect individual miners when include the DO and all miners whose representatives and mine operators on operators encounter intermittent, exposure is being controlled through the the requirements of the new regulations. adverse conditions under which use of PAPRs or verifiable In addition, agency personnel are exposures cannot be maintained within administrative controls. available to provide training to miners the applicable standard using the Since MSHA’s inspections are and their representatives on the approved dust control parameters. unannounced, the primary objective is verification procedures as needed. Finally, MSHA received comments to assess the respirable dust conditions This proposed rule does not suggesting that this rule address the to which miners are exposed under the incorporate full-shift sampling as Dust Advisory Committee operating conditions in effect at the time recommended by the Dust Advisory recommendation to establish a separate of sampling (i.e., production level, air Committee. In this proposed rule, silica standard. This issue is outside the quantities and velocities, etc.). All MSHA does require that verification and scope of this rule. respirable dust samples collected will operator quarterly sampling occur for III. General Discussion be considered valid, unless voided by the entire production shift since the MSHA for other reasons, such as a purpose of that sampling is to evaluate A. Proposed Reforms to the Respirable malfunctioning pump. Because the the effectiveness of the dust controls on Dust Monitoring Program primary purposes are to measure the the MMU. Therefore, outby travel time One of the Dust Advisory Committee’s quality of the mine air miners breathe is not included. With regard to key recommendations was that MSHA and to evaluate the operating conditions compliance sampling by MSHA, the take full responsibility for all on a particular shift, the Agency agency believes that sampling portal to compliance sampling at a level which believes there is no reason to invalidate portal for the entire shift or eight hours, assures representative samples of any sample if a certain level of whichever is less, provides the agency respirable dust exposure under usual production is not attained as under the with sufficient data to determine if the conditions of work. This was based on previous sampling procedures. dust control measures outlined in the the belief that one of MSHA’s highest Compliance sampling results, however, ventilation plan are adequate and being priorities must be to restore the will provide MSHA personnel with followed or to determine if confidence of miners and mine sufficient information to make a sound overexposures are occurring. operators in the respirable coal mine engineering judgement about the Although the Dust Advisory dust sampling program. effectiveness of the dust control Committee also recommended that Accordingly, MSHA is proposing to parameters in use. MSHA adjust the exposure limit to revise the operator dust sampling Also, since the purpose of this account for extended work weeks, such programs under current 30 CFR parts 70 sampling is not intended to evaluate a change is considered to be outside the and 90 and to take full responsibility for plan effectiveness, the term ‘‘full shift’’ scope of this rulemaking. all compliance sampling (i.e., periodic for purposes of compliance and

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abatement sampling will continue to 413 additional instances of concentrations at or below the mean the entire work shift including overexposure. Otherwise, these applicable dust standard on all shifts, travel time but excluding any time in overexposures would continue to go not merely at or below the CTV. If a excess of 480 minutes. This is different uncorrected under the previous policy measurement exceeds the applicable from the definition of ‘‘full shift’’ that is of measurement averaging. dust standard by an amount insufficient proposed for verification sampling. For Many commenters believed that to warrant citation—that is, the level purposes of verification sampling, ‘‘full miners would receive greater protection does not meet or exceed the CTV— shift’’ would mean an entire work shift if MSHA cited for noncompliance MSHA will target that mine or area for during which material is produced by a whenever any single-shift measurement additional sampling to ensure that dust MMU. MSHA solicits comments on exceeded the applicable dust standard. controls are adequate. whether full shift for compliance MSHA has carefully considered, but (b) Abatement Sampling sampling should be defined in the same rejected this suggestion. Such citations way as for verification sampling. may not be sustained with a sufficient Under this proposed rule, MSHA MSHA is proposing to continue the degree of confidence for enforcement would also assume responsibility for all current policy of sampling outby action. If the mine environment is abatement sampling. As recommended locations only once per year. The sufficiently controlled, the likelihood by the Dust Advisory Committee, MSHA historical data that has been collected that a particular measurement exceeds would utilize single samples to by MSHA personnel at outby locations the applicable dust standard, but not the demonstrate abatement. Since the confirms our belief that, if the working CTV, due to measurement error, can criteria under which the effectiveness of sections are in compliance with the actually exceed the likelihood that the ventilation plans are required to be applicable dust standard and if controls measurement exceeds the standard due verified are significantly more stringent are in place at outby dust generating to excessive dust concentration. A than those for compliance sampling, locations, workers throughout the mine thorough technical discussion of this MSHA does not anticipate issuing many are being protected from overexposure. issue is provided at 63 FR 5709–5712 citations to MMUs and sectional DAs. MSHA personnel will continue to (Appendix D of the Federal Register When a mine operator is cited for sample each DA located outby the notice cited above) and is incorporated violation of the applicable dust section dump point on a production into this notice by reference. Basing standard, MSHA will require that shift and any other dust-generating noncompliance determinations on a approved respiratory equipment be sources that can be sampled single sample measurement, in made available to the affected miners in concurrently with the DA. conjunction with the CTV table, will accordance with existing § 70.300 of this MSHA will issue a citation for improve working conditions for miners. part. The mine operator also will be noncompliance when a valid single Many commenters contended that a required to review the dust control sample measurement, expressed as an policy of citing in accordance with the practices to identify the cause of the equivalent dust concentration, meets or CTV table, rather than citing whenever excessive dust concentration and correct exceeds the Citation Threshold Value a measurement exceeds the applicable any deficiencies within the abatement (CTV) corresponding to the applicable dust standard, would effectively period fixed in the citation. dust standard in effect. increase the allowable dust The mine operator must notify the The current CTVs are contained in concentration limit. These commenters district manager of the corrective Table 70.2 of this proposed rule. The expressed concern that MSHA was measures taken within 24 hours of CTVs and an explanation of how they raising the applicable dust standard implementation to enable MSHA to were derived was originally published when it proposed to cite violations only determine whether abatement or in the Federal Register notice of when the measurement demonstrated verification sampling should be February 3, 1998 (63 FR 5687), entitled noncompliance at a high level of scheduled. This determination will be ‘‘Coal Mine Respirable Dust Standard confidence. based on the review of the information Noncompliance Determinations.’’ As The CTVs do not raise the applicable the mine operator provides and the explained in that notice and in dust standard. Instead, MSHA must latest inspection reports documenting Appendix ‘‘C’’ of the current notice of ensure a sufficiently high level of the measured quantities of the dust proposed rulemaking, each CTV is confidence in noncompliance control parameters that were in use at calculated so that citations are issued determinations to withstand a legal the time the citation was issued. only when a single-shift measurement challenge. For those MMUs with If it is determined that the existing demonstrates noncompliance at least at measurements above the applicable dust dust control parameters are likely to be a 95 percent confidence level. standard but below the CTV, MSHA will adequate to maintain compliance, the Noncompliance determinations based thoroughly review their dust control district manager will initiate abatement on single-shift measurements will parameters. Special emphasis will be sampling under § 70.218. For example, reduce the chances for failure to cite directed to working environments if the operator believes that the cases of noncompliance. According to required to comply with standards overexposure was caused by improper the federal sampling inspections below 2.0 mg/m3. As a result of such work practices, the proper course of conducted in 1995, only 132 MMUs reviews MSHA may initiate additional action would be to review these work were found to be in violation of the sampling. practices with the affected miners rather applicable dust standard. These MMUs The Secretary has concluded that than requiring the operator to upgrade were cited under the existing using single sample measurements for the engineering or environmental enforcement policy of measurement noncompliance determinations in controls. Since there was no need to averaging, compared to 545 MMUs that accordance with the CTV table neither change the plan parameters, MSHA would have been citable using single increases nor decreases the applicable would initiate abatement sampling in sample measurements in combination dust standard. Operators are required to this particular case. with the CTV table. This clearly maintain compliance with the If, on the other hand, the district demonstrates that the new enforcement applicable dust standard at all times. manager determines that the dust strategy will not compromise miners’ Dust controls must be verified as control parameters may not maintain health, instead it would have identified adequate to maintain dust respirable dust levels at or below the

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applicable dust standard, the mine and the proposed single sample rule, miners’ confidence in the dust sampling operator will be notified to revise the would provide protection to miners program. dust-control portion of the mine from the debilitating effects of B. Procedures for Setting the Applicable ventilation plan as specified in this Part. occupational respiratory disease by Dust Standard When Quartz Is Present When MSHA samples a MMU for limiting their exposures to respirable abatement purposes, single samples will coal mine dust and quartz dust on every 1. Proposed Procedures be collected from the working shift: • Consistent with MSHA’s proposed environment of the cited occupation Providing and maintaining a work rule to assume full responsibility for and, if available, four other occupations environment free of excessive levels of compliance sampling, the Agency also that will include the DO. Like respirable dust is essential for long-term proposes to rely only on MSHA compliance sampling, abatement health protection. While monitoring of samples, i.e., compliance or abatement sampling will be conducted portal to the work environment provides an samples, as the basis for setting the portal, for the entire shift or 8 hours, indication of how effective the existing applicable dust standard when quartz is which ever is less. dust control measures are, monitoring present. As discussed below, while When sampling DAs and outby alone does not control dust levels. today’s proposed rule would reduce the occupations, MSHA will collect a Requiring mine operators to implement burden and cost on mine operators to similar single-shift abatement sample and maintain dust control parameters take and submit optional samples, it from the environment of the cited DA or which have been determined effective would not diminish the advantages occupation. under typical mining conditions, will afforded operators under the current A citation for excessive dust will be provide reasonable assurance that no program. In particular, it continues to terminated when all valid abatement miner will be overexposed on consider temporal variability associated samples collected are at or below the individual shifts. with quartz determinations by averaging • Implementing single-shift sample applicable dust standard. The three MSHA samples collected on determinations will more likely detect subsequent action form will clearly and different shifts. fully describe the action taken to abate excessive dust concentrations and thus MSHA believes that results under this the violation. Mine operators may be protect miners. Averaging samples taken revised process will be more required to revise the ventilation plan in on multiple shifts can mask representative of the quartz levels to accordance with § 75.370(a)(2) of this overexposures on individual shifts. which miners are exposed. Unlike the title depending on the type of corrective Although fewer shifts will be sampled current process, which may cause a measures taken to abate the violation. under this proposed rule, MSHA standard to be set based on the quartz This includes, at a minimum, the actual believes the revised sampling content of an individual MSHA sample, dust control parameters that were in methodology will provide a more three valid MSHA samples would be effect when MSHA sampled. accurate representation of dust used to set a reduced standard under the If the district manager requires the conditions to which miners are exposed. revised procedures (64 FR 65671).5 • Under the existing operator mine operator to initiate the plan Since, under the rules being proposed sampling program, only the DO is verification process under § 70.206 of today, MSHA intends to frequently sampled. Under the new sampling this part instead of abatement sampling, sample underground mines and surface the citation for excessive dust will be program, MSHA will sample multiple mines, MSHA personnel will have no terminated after a revised plan has been occupations on the same shift. As a difficulty in collecting the required verified to be effective for the current result, MSHA will make several times as number of samples to arrive at the mining conditions. many compliance determinations as average quartz percentage. If initial under the previous operator and MSHA sampling shows that miners may be (c) Operator Verification Sampling and sampling programs combined, providing Quarterly Sampling exposed to excessive levels of quartz, a more comprehensive assessment of MSHA intends to sample at a greater Mine operators are required, under dust conditions to which miners are frequency to ensure that miners are this proposed rule, to verify, through exposed. • being protected. This level of sampling sampling, the effectiveness of the dust Since MSHA will be conducting all should also allay any operator concerns control parameters for each MMU prior compliance sampling, the Agency will regarding the collection of to receiving MSHA approval of the mine be able to monitor the dust control ‘‘misleadingly high’’ samples during ventilation plan. In addition, certain parameters and work practices in effect atypical periods. MSHA also intends to mine operators must sample quarterly during sampling. This will enable begin reporting quartz levels to the each DO, any occupation required to MSHA to determine the effectiveness of nearest tenth of a percent. This will be wear a PAPR or using administrative the mine operator’s dust control more protective for the miner than the controls, and any other occupation program. current truncation of results to a full • Unlike the current sampling designated by the district manager. The percentage point. purpose of the quarterly sampling is to program, which allows operators’ Under the revised procedures, when evaluate the continued effectiveness of control over when to sample and under an MSHA sample contains more than the approved dust control parameters. what operating conditions, MSHA’s five percent quartz, the agency will These provisions are discussed visits for compliance sampling will be average the percent of quartz present in elsewhere in this proposed rule. unannounced. As a result, all phases of three most recent MSHA respirable coal the mining cycle are likely to be mine dust samples to set the applicable (d) Advantages of MSHA Compliance sampled eventually (i.e., construction Sampling Over the Existing Program activity, longwall start-up, turning 5 Unlike MSHA’s objective in compliance Under section 101(a)(9) of the Mine crosscuts, etc.), and samples should be sampling, the objective in measuring quartz content Act, no health standard promulgated more representative of typical mining is to establish a reduced standard that will apply under the Act shall reduce the conditions. to all shifts. This enables an operator to design a • ventilation plan that will be protective on every protection afforded miners by an The miners’ representative will shift. Therefore, it is appropriate to estimate the existing mandatory health standard. The have walkaround rights during all quartz content by averaging quartz measurements joint promulgation of this proposed rule MSHA sampling, thereby increasing obtained over an extended time period.

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dust standard. If a MMU, DA, cause the standard to be lowered below surveillance and reduce exposure to this Designated Work Position (DWP) at an the existing reduced standard, the serious health hazard. underground mine, or Part 90 miner is operator will be cited for violation of the As under the current program, if already on a reduced standard, a new applicable dust standard currently in operating conditions change following applicable dust standard will be effect. On the other hand, if the quartz establishment of a lowered applicable established by averaging the results of content of the sample would cause the dust standard and affect the level of the first two MSHA samples, taken applicable dust standard and the quartz in the working environment, under the revised procedures, with the corresponding citation threshold value MSHA intends that mine operators or quartz percentage associated with the (CTV) to increase so that the single-shift miners’ representatives will be able to reduced standard in effect. If fewer than sample measurement would no longer request MSHA to conduct a quartz two MSHA samples are taken, the indicate noncompliance, no citation reevaluation. existing reduced standard will continue will be issued. This is illustrated by way 2. Validity of Averaging Percentages to remain in effect. of the following example. Assume a MMU is on a 1.0 mg/m3 For example, suppose that the MMU The average quartz percentage that standard (10 percent quartz). If the first is on a 1.3 mg/m3 standard and a single- MSHA intends to use to set the MSHA sample contains 7.2 percent of shift sample measurement of 1.6 mg/m3 applicable dust standard for a particular quartz, the existing standard of 1.0 mg/ is obtained. Since this measurement sampling location or area of a mine m3 would continue to remain in effect. exceeds the CTV value, the operator is would be determined in accordance If, however, the next sample contains in violation of the standard. However, with accepted mathematical procedures 16.1 percent, the average quartz analysis of the DO sample shows that for arriving at an average value from a percentage would be 11.1 percent the sample contained 5.6 percent quartz set of values (i.e., adding together the [(10.0% + 7.2% + 16.1%) 3 = 11.1%], which, if averaged with the previous individual quartz percentages and resulting in a 0.9 mg/m3-standard (10 two MSHA quartz levels, would result dividing by the number of analyses that 11.1% = 0.9 mg/m3). For any MMU, DA, in a 1.7-mg/m3 standard. This indicates are in the set). MSHA believes that this DWP, or Part 90 miner not on a reduced that the quartz level in the environment is the most appropriate method to use. standard, MSHA will collect and of the DO has changed, indicating that One commenter who responded to a analyze three samples for quartz to the current standard is no longer valid. draft 1999 program policy letter determine if a reduced standard is Therefore, since the original (November 23, 1999, 64 FR 65671) warranted. measurement of 1.6 mg/m3 is less than concerning this issue contended that Under the revised procedures, if the the 1.7-mg/m3 standard that could have MSHA’s approach of arriving at the newly-established standard is lower been in effect for the shift sampled, a average quartz percentage was than the one in effect, the new standard citation would not be issued. mathematically incorrect. This will become effective seven days after Since MSHA samples are viewed to commenter recommended that, to more the date of the notice informing the be more representative of the respirable accurately reflect the true quartz mine operator of the change in the dust concentration to which miners are concentration, the average quartz applicable dust standard. However, if it exposed, MSHA is proposing to revise percentage be calculated by dividing is higher than the current standard, the section 70.101 to clarify that the total mass of quartz in micrograms by newly-established applicable dust Secretary will determine the quartz the total mass of dust collected (based standard will become effective on the level by sampling. Operator samples on three samples in the example date of the notice. would no longer be submitted to submitted). In the commenter’s As published elsewhere in today’s determine the applicable dust standard. example, the average percentage Federal Register, MSHA is proposing to It is our belief that the procedures being obtained using MSHA’s proposed take enforcement actions on the basis of proposed today for setting reduced averaging method was larger than that single-shift sample measurements. For standards will be more protective for the obtained using the commenter’s entities on reduced standards, MSHA miners than those in effect at this time. approach. would delay enforcement action until The revised approach provides for The following two scenarios in Table the sample is analyzed for quartz. If an stringent monitoring of miners’ III–1 clearly demonstrate that MSHA’s exposure measurement significantly exposure to quartz which is consistent intended averaging method does not exceeds the existing standard and the with the Dust Advisory Committee’s always result in a larger average quartz quartz content of that sample would recommendation that MSHA increase percentage value.

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These examples show that for • The pressure and quantity of water later determined to be inadequate under situations where MSHA would have delivered by the sprays; and typical mining conditions. determined a quartz percentage of 8.0 • Additional environmental controls, 1. Proposed Procedures for Evaluating, percent, the commenter’s method would such as dust scrubbers or devices which Approving, and Monitoring Ventilation yield 9.2 percent in one case and 7.7 collect mine air and filter out dust Plan Requirements percent in the other. particles. The dust control portion of the mine C. Respirable Dust Control Program for Plans also contain procedures for ventilation plan is the key element of an Underground Coal Mines maintenance of dust control equipment used on the mining machine and roof operator’s strategy to control respirable The primary focus of the underground bolter. Mine operators frequently do not dust in the work environment, thereby coal mine respirable dust program is to describe all dust controls in use at the protecting miners. In recognition of this, limit the concentration of respirable mine. If such information is not MSHA is proposing to make a number dust to which miners are exposed in the included in the plan, it is impossible for of changes to the process for evaluating, work environment. To ensure that MSHA to enforce those provisions or to approving, and monitoring mine miners are not being exposed to determine if the ventilation plan ventilation plans, many of which are excessive concentrations of respirable provisions as approved are adequate to based on the Dust Advisory Committee’s dust, current regulations require mine protect miners from overexposure. recommendations. These are addressed operators to: When an operator submits a proposed in detail under proposed §§ 70.201 • Design a mine ventilation plan that mine ventilation plan or revision in through 70.220 of the preamble. effectively controls respirable dust accordance with § 75.370, the MSHA Consistent with the Dust Advisory under typical mining conditions; district office reviews it for Committee recommendations, MSHA is • Implement the plan’s dust control completeness and adequacy. The proposing to add provisions to verify parameters when approved by MSHA district manager will approve the plan the effectiveness of the ventilation plan before commencing production; if it meets MSHA requirements, and he in controlling dust, at a production level • Maintain the dust control or she is confident that the dust control which will demonstrate the plan’s parameters specified in the approved parameters specified will have a effectiveness under typical operating plan and monitor their function and reasonable likelihood of maintaining conditions. Dust control parameters and operation through required on-shift dust concentrations within the production associated with samples on examinations; and allowable limits. Most proposed plans a given shift would be recorded in order • Evaluate the effectiveness of dust or revisions are approved immediately, to demonstrate that parameters specified control parameters with bimonthly or tentatively approved, based on in the ventilation plan continue to be samples in order to provide reasonable engineering judgement, or experience, effective in controlling respirable dust. assurance that such parameters continue or both, until they are assessed by This proposed rule requires a to function as intended. MSHA sampling or, to a lesser extent ventilation plan to include all In addition, each plan must be and only under certain circumstances, engineering or environmental controls suitable to the conditions and mining by mine operator bimonthly sampling. necessary for maintaining dust system in use at the mine. These plans Generally, MSHA takes samples within concentrations at acceptable levels. A provide detailed requirements for the 60 days of plan approval. Current plan must also include any specific protection of miners by specifying regulations prohibit a mine operator work practices or other means used to engineering controls. These engineering from initiating any mining activity supplement these controls in order to controls may include: without an approved ventilation plan. minimize the dust exposure of • The quantity and the velocity of the MSHA allows operators to commence individual miners. Unlike plans under air current used to ventilate the MMU; mining by granting tentative approval. the existing program, mine operators • The number, type, and location of However, under the existing process, will have to identify all measures water sprays; plans may be implemented which are necessary for achieving continuous

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compliance with the applicable dust plan effectiveness may not adequately Some commenters on the earlier standard in the plan. represent typical conditions under proposed rule expressed confusion MSHA would require mine operators which miners work. Requiring that about the relative magnitude of the VPL, to include information on the length of plans be verified at or above the VPL compared to average production or each normal production shift in will provide assurance that excessive other possible production criteria. § 75.371(f) and to specify the VPL, as dust concentrations will be avoided, Figure 1 shows a typical distribution of defined in § 70.2, in every ventilation even on shifts with higher-than-average 30 shift production levels recorded at a plan. The VPL is the tenth highest production. This is far more protective longwall MMU. As illustrated by this production level recorded in the most of miners than the current practice of example, the VPL, defined as the 10th recent 30 production shifts. This value evaluating plan adequacy based on highest production achieved during 30 will represent the minimum production level at which effectiveness of the plan MSHA samples taken when production shifts, generally exceeds the average must be demonstrated. can be as low as 60 percent of the production by a substantial amount. MSHA believes that the current average production. BILLING CODE 4510–43–P production criteria used to evaluate

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BILLING CODE 4510–43–C typical production levels. Although a VPL on about 33 percent of all MSHA proposes to require mine VPL must be included in the ventilation production shifts. If the district manager operators to maintain records of the plan, MSHA will not cite mine determines that an operator’s actual amount of material produced by each operators for producing at levels production exceeds the VPL on more MMU during each shift. This will exceeding the VPL. than 33 percent of the production shifts enable operators to establish the VPL. MSHA considers the VPL to be a plan over a six-month period and the Because verification of a plan’s design criteria, not a minimum plan operator or MSHA samples exceed the effectiveness is conditioned on the VPL, parameter that must be in effect on applicable standard, the district these records are necessary to ensure every shift. The Agency would expect manager may require that the adequacy that the VPL continues to represent production on a MMU to exceed the of the plan parameters be verified under

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different operating conditions of verification samples, operators would 2. Administrative Controls production. only be cited if they fail to take Administrative controls are another Under the proposed plan verification corrective action to eliminate any method of avoiding overexposure. procedures, mine operators will be overexposure identified through such Administrative controls refer to work required to verify through sampling the sampling. practices that reduce a miner’s daily effectiveness of the dust controls exposure to respirable dust hazards by specified in the ventilation plan prior to D. Hierarchy of Dust Controls altering the way in which work is approval of that plan by the district 1. Primacy of Engineering Controls performed. They consist of such actions manager. Sampling would occur when as rotation of miners to areas having production is at or above the VPL Consistent with the Mine Act, lower dust concentrations, rescheduling specified in the plan and using only engineering or environmental controls of tasks, and modifying work activities. those control parameters and other have been the principal method used for The Task Group found that measures listed in the plan. The preventing or minimizing miners’ sampling pumps must be turned on administrative controls were used exposure to both primary and secondary increasingly, even when it was feasible upon arrival on the MMU and remain dust sources in the workplace over the operational during the entire production to implement additional engineering or past 30 years. Engineering controls that shift. The pumps must be turned off environmental controls. The use of upon leaving the MMU. Samples would are able to manage the amount of dust administrative controls was found to be be collected on multiple occupations throughout the work environment give increasing at mines employing longwall which are specified in proposed reasonable assurance that all miners in mining systems. § 70.206. All verification samples must the area will be adequately protected. The most frequent administrative be transmitted to MSHA. However, no Well-designed engineering or control in use consisted of restricting citations would be issued to mine environmental controls provide the activities of miners required to work operators if the verification sample consistent and reliable protection to all downwind of the longwall shearer results show that the applicable dust workers because they are not dependent operator, the occupation designated as standard has been exceeded. Operators upon constant human supervision or 044 by MSHA. This particular form of would be cited only if they fail to take intervention, except for the periodic administrative control was in use at steps to determine the cause and take checks, to ensure that they are some of the 51 longwall MMUs that corrective action to eliminate the functioning as intended. Under this were operating on October 28, 1999. MSHA has observed the use of this overexposure. The agency would proposed rule, operators would be particular administrative control, even approve a plan only when a sufficient required to utilize, on each production after changing the location of the DO number of verification samples shift, all engineering or environmental from the 044 to the 060 occupation—the demonstrate, at a high level of controls as specified in their mine confidence, that the plan is effective at miner who works nearest the return air- ventilation plans. These controls will side of the longwall working face. production levels at or above the VPL. maintain concentrations of respirable Unlike the existing program, this Unlike engineering or environmental dust in the work environment of MMUs proposed rule would allow certain controls, to be effective, administrative at or below the applicable dust longwall and other operations to use controls rely on the ability of miners to either approved PAPRs, administrative standard. Engineering or environmental follow specified procedures. However, controls, or both, to supplement controls include all methods that difficulty in ensuring that miners adhere engineering or environmental controls if control the level of respirable dust by to the administrative controls, labor/ the mine operator is unable to verify the reducing dust generation (e.g., machine management agreements, and ventilation plan. This will be permitted parameters) or by suppressing (e.g., limitations on the number of qualified only after the Administrator for Coal water sprays, wetting agents, foams, miners capable of handling specific Mine Safety and Health determines that water infusion, etc.), diluting (e.g., tasks may limit the use and the operator has exhausted all feasible ventilation), capturing (e.g., dust effectiveness of such controls. engineering or environmental controls. collectors), or diverting (e.g., shearer The Dust Advisory Committee Report District managers also may allow mine clearer, passive barriers, etc.) the dust stated that the use of administrative operators to use PAPRs to achieve being generated by the mining process. controls does not reduce the operator’s compliance with the applicable dust The importance of using engineering responsibility to maintain ambient dust standard when unusual operating or environmental controls was levels in active workings at or below the conditions are encountered briefly and recognized by the Dust Advisory applicable dust standard. However, the intermittently and the operator believes Committee and by NIOSH in Dust Advisory Committee noted that ‘‘while not a substitute for engineering that the approved plan parameters will Occupational Exposure to Respirable not adequately protect all miners from controls, administrative controls, which Coal Mine Dust (NIOSH, 1995). NIOSH overexposure. The period of time when restrict the amount of time that miners recommended that such controls must PAPRs may be used cannot exceed 30 spend in an area with uniform exposure calendar days under this proposed rule. continue to be relied upon as the level, can result in lower personal An example of when such approval may primary means of protecting coal exposures (MSHA, 1996).’’ be granted is when an operator miners. The primacy of engineering or 3. Limitations of Engineering Controls periodically must mine through rock environmental controls would be strata with high quartz content. preserved under this proposed rule. The It is MSHA’s position that technology Finally, under this proposed rule, proposed rule requires a mine operator is generally available to control mine operators also would be required to utilize all feasible engineering or respirable dust to, or below, the to sample each DO and occupation environmental controls, specified in the applicable dust standard at MMUs using PAPRs or administrative controls approved ventilation plan, to reduce employing continuous and conventional at least once every three months to concentrations of respirable dust to a methods of mining. However, where evaluate the continued adequacy of the level at or below the applicable dust unusual or adverse conditions are approved plan parameters. As with standard. encountered it is possible that available

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controls may be inadequate to bimonthly sampling period. Therefore, the design and quality of mine continuously protect all miners from dust concentrations on sampled shifts ventilation plans for longwall MMUs. overexposure. This is most likely to may be substantially lower than what is 4. Respiratory Protection occur in areas where high levels of typical on nonsampled shifts. quartz are encountered that may result While significant efforts have been While the Mine Act provides that in the setting of lowered standards on a made to implement available control operators ‘‘make available’’ approved MMU. technology, no significant new respirators to miners during periods of However, MSHA recognizes that, advancements in longwall dust control noncompliance, when miners may be unlike other mining systems, longwall technology have been reported since overexposed, the Act specifically MMUs may have acute dust problems. 1989 (U.S. Bureau of Mines, undated). prohibits using such devices as a These problems can be caused by the From 1989 to 2002 (Jan.–Sept.), the substitute for environmental controls in face-ventilation airstream carrying the percentage of operators’ longwall DO the active workings of the mine. As shearer-generated dust over the miners samples with concentrations of 2.1 mg/ previously discussed elsewhere in the working along the face downwind of the m3 or higher dropped from 22 percent preamble, this is because environmental longwall shearer operator (occupation to 14 percent, reflecting the impact of or engineering controls are reliable, code 044). This makes it more difficult implementing the pre-1990 advances in provide consistent levels of protection to control the work environment longwall control technology. Although to large number of miners, allow for downwind of the longwall shearer this represents a significant predictable performance levels, can be operator on a consistent basis. improvement, especially in view of the monitored continually and Improvements in dust control six-fold increase in average shift inexpensively, and can remove harmful technology have not kept pace with production, the 2002 data suggests that levels of respirable coal mine dust from increases in production technology miners continue to be overexposed on a the workplace. MSHA recognizes that associated with high-production significant number of shifts. approved respirators, such as the longwall MMUs. Average longwall shift Over the past ten years, MSHA and powered air-purifying type (e.g., Racal production reported during bimonthly the former U.S. Bureau of Mines, now Airstream helmet or air helmet),6 can be sampling has increased more than six- part of NIOSH, have made unsuccessful effectively used as an interim method of fold since 1980, from approximately 890 efforts to conduct a joint research protecting miners from respirable dust tons per shift (tps) to 5,500 tps in 2002. program that would evaluate the hazards when properly selected, used, In fact, 49 percent of the shifts sampled effectiveness of available longwall dust and maintained. Although a respirator averaged 4,000 to 8,000 tps, while control technology. The objective of may achieve satisfactory air quality in approximately 8 percent of the shifts such research would have been to the miner’s breathing zone when used exceeded 8,000 tps. A major milestone quantify the effects of employing all in a good respirator program, their use in mining production was achieved in state-of-the-art dust control technology will not achieve the intent of the Act, 1997 when a single longwall mine available for a longwall operation. which is to control the level of produced more than 1 million tons of Unfortunately, the two agencies have respirable coal mine dust in the mine coal in a single month (Fiscor, 1998). been unsuccessful in finding an atmosphere in the active workings at or Unfortunately, as more coal is mined, industry partner to participate. below specific limits. Accordingly, greater quantities of respirable dust are MSHA has worked with mine consistent with the intent of the Act and generated. The increase in longwall operators on an individual basis to general industrial hygiene practice, it production levels has resulted in the determine the effectiveness and has been MSHA’s long-established generation of far more dust which must feasibility of existing and additional practice to rely on the strict adherence be controlled (Webster, et al., 1990; respirable dust controls on a particular to a hierarchy of controls that prefers Haney, et al., 1993; O’Green, 1994). longwall. However, the design and goals engineering controls over dependence According to published literature, of those studies were neither intended on supplementary control measures several thousand milligrams of nor sufficient to meet MSHA’s broader (e.g., respirators, work practices or both) respirable dust per ton of coal cut can research objective. Rather, the scope of to achieve compliance with the be formed and liberated during the those studies was to evaluate the applicable dust standard. cutting process (National Research effectiveness of control technology that Nevertheless, the mining industry has Council, 1980). Of course, the quantity both MSHA and the mine operator urged MSHA over the years to accept of respirable dust produced by the agreed were applicable to that one the use of powered air-purifying cutting process can vary greatly, particular longwall MMU. The objective respirators (PAPRs) or air helmets as an depending on the type of coal, its of the cooperative research program that alternative method of complying with moisture content, the amount of rock MSHA and the Bureau of Mines were the applicable dust standard when bands in the coal, sharpness of the attempting to conduct, was to establish engineering controls did not adequately cutting bits, the particular mining the combined efficiency of the various control respirable exposure or were not machine, and many other factors. control technologies that the Bureau of feasible. Most recently, Energy West Although a considerable amount of Mines had developed through their Mining Company (Energy West) respirable dust is formed by the cutting ongoing dust control research program. petitioned the Secretary of Labor: operation, not all of it becomes airborne. However, even though no such study [t]o amend the mandatory health standards Nevertheless, given the amount of dust has been conducted, based on our for underground coal mines contained in the that is produced per ton of coal mined, experience, MSHA’s position remains Secretary’s regulations at 30 CFR part 70 in a larger quantity of respirable dust that feasible engineering or order to allow the use of airstream helmets would be generated and released to the environmental controls exist for or other types of powered air-purifying mine environment from cutting 8,000 maintaining dust exposures at or below respirators (PAPRs) approved by the National tons of coal than from cutting 4,000 the applicable dust standard, for most, Institute for Occupational Safety and Health (NIOSH) as a supplemental means of tons. Currently, an operator is not if not at all longwall operations. MSHA required to produce, on a sampled shift, believes that the plan verification 6 References to specific equipment, trade names more than 50 percent of the average provision contained in this proposed or manufacturers does not imply endorsement by production reported during the last rule will foster further improvements in MSHA.

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compliance with the respirable dust when used in accordance with the at the chin. A partial seal between the standards of subpart B of part 70. (Energy approved plan provisions. This visor (inlet covering) and the face is West, September 1997). proposed rule, which provides for accomplished using a flexible medium Energy West contended that PAPRs are expanded use of supplementary controls which contours to the wearer’s neck and necessary as a supplemental means of under limited circumstances to protect face. The original air helmet has controlling respirable dust because even individual miners, is not a departure undergone numerous design the most diligent application of feasible from the Agency’s long-standing improvements since it was first engineering or environmental controls practice of relying on engineering introduced in British coal mines. The could not always prevent overexposure. controls to achieve compliance, since unit is now produced by the Minnesota This proposed rule responds to Energy these measures would not be used as a Mining and Manufacturing Company West’s petition for rulemaking. substitute or replacement for (3M) (3MTM Helmet-Mounted Although, as stated above and engineering control measures in the AirstreamTM series). elsewhere in the preamble, the Agency active workings. Rather, it is a Unlike other styles of PAPRs (e.g., does not believe that supplementary recognition that, in those limited hoods) and negative pressure, tight- controls are as effective or as safe as instances where supplementary controls fitting respirators, the air helmet is engineering controls, MSHA believes, may be used, engineering controls alone better able to provide various types of on balance, that under certain may not protect some miners from required personal protective equipment circumstances reliance upon the limited overexposure. in an efficient package. For example, in use of such measures is appropriate. addition to protecting the lungs, the Accordingly, MSHA is proposing to a. Selection of Respirators: Powered Air- helmet and visor (the inlet covering) of permit the limited use of either Purifying Respirators (PAPR) a PAPR can simultaneously protect the approved PAPRs, administrative By choice, underground coal miners face and head from high-velocity controls, or a combination of both, for wear various styles of respirators to nuisance dust, spray, and small pieces compliance purposes, in those protect themselves from exposure to of coal from the cutting drums and face. circumstances where further reduction respirable coal mine dust including: PAPRs do not require fit-testing, unlike of dust levels cannot be reasonably disposable filtering facepieces, tight- tight-fitting respirators. achieved using all feasible engineering fitting elastomeric masks, and PAPRs. By definition, for PAPRs to be controls. In these situations, the burden Currently, over 50 percent of the approved for use under this proposed of proof of infeasibility is appropriately operating longwall mines have miners rule, the visor must form a partial seal placed on the operator. Also, as who have chosen to wear PAPRs with the face, limiting entry of provided for under proposed § 70.212, (MSHA, Longwall Summary, January, unfiltered mine air. Because this style of MSHA recognizes that the use of PAPRs 1999) for added protection. respirator does not have a tight-fitting as a supplementary control may be The Racal Airstream, or air helmet facepiece, miners are not required to be appropriate on an intermittent basis as referred to by miners, is a type of clean shaven in order to wear this when unusual operating conditions are loose-fitting PAPR which has long been respirator correctly. MSHA’s allowance encountered that adversely impact the the respirator of choice in underground of facial hair with this style of PAPR is ability of the previously verified plan coal mines. Due to the weight of the also consistent with the Occupational parameters to effectively control device, its use has generally been Safety and Health Administration’s respirable dust under prevailing limited to mines with coal seam heights (OSHA) regulation that facial hair conditions. MSHA will permit the use exceeding six feet. The functional and prohibition applies only to tight-fitting of PAPRs for a period not exceeding 30 physical characteristics of air helmets, respirators (29 CFR 1910.134 (g)(1)(i)(A) calendar days if the operator as described below, make them as discussed in 63 FR 1152). MSHA demonstrates that the particular especially well-suited to underground recognizes that there may be facial circumstances that necessitate the use of coal mining conditions. Accordingly, conditions which may prevent the PAPRs occur only intermittently and are MSHA has chosen PAPRs as the type of proper fit of a PAPR. However, a well- beyond the control of the operator. respirator to be used when such devices designed respirator protection program While the conditions under which are approved under this proposed rule. should identify and address any MSHA would permit supplementary The air helmet has been in use in extreme facial conditions, including controls to be used introduces an added underground coal mines since the late excessive facial hair, which prevent the element of complexity to the proposed 1970s. Developed primarily for mining partial seal of the inlet covering and the standard, the Agency believes that it use by the Safety in Mines Research face as intended, and thereby will provide operators the flexibility to Establishment (SMRE) in England, this compromise the efficacy of the PAPR. select the most appropriate option for respirator combines face, head, and For example, a miner could have supplementing the engineering controls respiratory protection in a single exceptionally bushy sideburns which which best meet the needs of the miners convenient unit. The support hardware, prevent the inlet covering from forming under the prevailing operating which provides the filtered air, is an appropriate partial seal with the face, conditions. enclosed within the air helmet. Power and leave a significant gap between the MSHA believes that the use of these for the system is provided by a belt- inlet covering (visor) and chin. This supplementary control measures, under mounted battery. Mine air enters the situation would have to be rectified in the conditions of use set forth in the helmet through a rear entrance port, order for the PAPR to be worn properly. proposed rule, will enhance the level of passes through a pre-filter assembly that Greenough (1978) summarized health protection for miners by removes the coarse material, and then limitations of other styles of respirators preventing overexposures on all shifts passes through the fan and into a final- as follows: when engineering controls cannot filter assembly that is located between achieve the necessary reduction to or the head of the wearer and the outer [T]he objections to conventional face-mask respirators arise primarily from the mask below the applicable dust standard. The helmet shield. The filtered air then being clamped to the wearer’s face, often combination of engineering and sweeps down across the wearer’s face, causing irritation and soreness: also the supplementary controls will provide behind the face-shield visor, imposing breathing resistance, though small, can affect reliable and effective exposure control minimal breathing resistance, and exits the wearer’s capacity to work over long

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periods (Johnson, 1976). Speech is impeded elements to the inlet covering, which related to reports that visors were and if the respirator harness fits under the provides a partial seal with the face. fogging. These commenters attributed wearer’s safety helmet it is necessary to This respirator must be approved by the fogging problem to NIOSH’s recent remove the helmet when replacing the respirator. NIOSH under 42 CFR part 84 and by (mid-1998) improvement in the filtering MSHA under 30 CFR 18 and offer head medium for PAPRs. One commenter Greenough’s description illustrates and face protection in compliance with testified: how other styles of respirators are less 30 CFR 75.1720(a)and(d). I would have to answer honestly and say compatible with the other safety A current list of equipment, including they [PAPRs] are being used in a modified requirements for miners, as well as PAPRs, approved under 30 CFR 18 can condition. Miners some, you know, have miners’ comfort, and their need to be obtained from MSHA’s Approval and typically removed the shroud * * * [miners] communicate. It would be more difficult Certification Center on the internet at raise the face piece to communicate and so for a miner to perform his/her job on * * *. We’ve had that [fogging of the http://www.msha.gov/TECHSUPP/ACC/ visor] problem recently, * * * since we’ve effectively and communicate with lists/18instrm.pdf. A searchable index of fellow workers, wearing a tight-fitting been required [by NIOSH] to use the new approved respirators is available from version of the filter [the HEPA filter]. There respirator their entire work shift. Voice NIOSH at http://www2.cdc.gov/drds/ has been what seems to be reduced flow in transmission through a tight-fitting cel/cel_form.asp. As of 2002, the 3M the unit and that has also resulted in more respirator can be difficult, annoying and Airstream Air-Purifying Helmet (MSHA fogging. And we’ve worked real hard to try fatiguing. In addition, movement of the Approval 2G–3143, originally issued to to—[work] with 3–M to try to resolve that. jaw in speaking can cause leakage, Racal 3/29/1979), was the only MSHA’s experience has shown that thereby reducing the efficiency of the approved PAPR model suitable for use fogging of PAPRs has been an respirator and decreasing the protection under this proposed rule. intermittent problem since the afforded the wearer. While voice b. PAPR Protection Program introduction of PAPRs in underground communication is somewhat easier with mines. This is due to the inclement a PAPR than with other respirator In an underground coal mine, the conditions of underground mining such styles, the face shield is generally raised degree of respiratory protection that a as: High humidity, fluctuation in to communicate. Also skin irritation can properly functioning PAPR will provide temperature, and physical exertion by result from wearing a tight-fitting the wearer is a function of the type and miners. respirator in hot, humid conditions. condition of the air-purifying medium Some miners indicated that they had Tight-fitting respirators have straps used to filter out the respirable dust to replace the HEPA filters with socks which go across the crown and back of particles from the mine air, the to increase the PAPR airflow. Using a miner’s head which is under a miner’s workplace environment (i.e., nature and socks in lieu of required filters is helmet (i.e., hard hat). Because miners concentration of the respirable coal unacceptable. This one example of are required to wear hard hats at all mine dust), the work activity of the PAPRs being used outside the times while in the mine (30 CFR wearer in that environment, how the manufacturer’s recommendations and 75.1720(d)), each time a miner needs to wearer uses the device (i.e., how often the requirements of an approved break the seal of a tight-fitting is the visor raised during the shift), and respiratory protection program. Various respirator, to eat, or to speak, or to the care and maintenance of the PAPR’s approved remedies are available to relieve the discomfort of the seal, he/she functional components and power control fogging of visors including: would have to remove the hard hat. source. These parameters are required to intermittent wiping down of the visor, Similarly, each time a miner would be addressed in the approved PAPR ‘‘anti-fogging’’ visors, application of need to put a tight-fitting respirator back protection program (see example in anti-fogging sprays, and the use of a new on he/she would have to remove their Appendix B). visor design with an anti-fog impregnate hard hat. It should be noted that both In 1998, to increase the efficiency of tight-fitting elastomeric respirators and baked directly into the visor. A properly the filtering medium used in PAPRs, functioning respiratory protection disposable facepieces, if worn correctly, NIOSH began requiring PAPRs to be would require the wearer to be clean program would address this issue, with equipped with a high efficiency respect to the appropriate selection and shaven. A large proportion of miners particulate air (HEPA) filter. This have a tendency to wear facial hair, maintenance of a respirator. change introduced a denser medium to MSHA recognizes that for a PAPR especially during the fall and winter filter the air, providing an extra margin protection program to be effective, the season. of safety at all levels of respirable coal The unique qualities of the PAPR miner must be properly trained to wear mine and quartz dust exposure. identified within this proposed rule are the respirator, to know why the However, as a result of this change, the such that it could fall into either the respirator is needed, and to understand PAPR’s average airflow dropped from helmet or loose-fitting facepiece the limitations of the respirator. about 9 cubic feet per minute (cfm) to categories. ANSI defines a loose-fitting Appendix B contains a model PAPR 7 (cfm). While the current airflow still PAPR with a helmet to be ‘‘a hood that protection program to assist an operator exceeds the required minimum airflow offers head protection against impact in developing a mine-specific program of 6 cfm (42 CFR 84.1152(b)), the drop and penetration (ANSI, 1988).’’ ANSI in accordance with the provisions of the in airflow reduced the level of comfort defines a loose-fitting PAPR with a American National Standards Institute’s the PAPR provides to the miner. loose-fitting facepiece as ‘‘A respirator ‘‘Practices for Respiratory Protection MSHA realizes that miners’ comfort inlet covering that is designed to form ANSI Z88.2–1969’’ as required by 30 with a particular respirator is an a partial seal with the face, does not CFR 72.710. Additionally, mine important determinant to miners’ proper cover the neck and shoulders, and may management must regularly conduct use of it. Several previous commenters offer head protection against impact and reviews to ensure continued testified that PAPRs were not being used penetration (Ibid.).’’ In this proposed effectiveness of the PAPR protection as approved.7 Many of these examples rule, a powered air-purifying respirator hoods, and helmets shall be designed and (PAPR) is defined as an air-purifying 7 NIOSH requirements for PAPR performance, constructed to provide adequate vision which is not respirator that uses a blower to force including airflow are specified in 42 CFR subpart distorted by the eyepiece, NIOSH does not have ambient air through the air-purifying kk. Although § 84.1136 specifies that facepieces, requirements for a visor’s predisposition to fogging.

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program. Under this proposed rule an accurately as possible the actual protection An effective protection factor (EPF) is operator will not be permitted to use being provided by the respirator (NIOSH, another form of estimate of efficacy of PAPRs as a supplementary control May 1987). a respirator given its typical use. without an MSHA approved respiratory Furthermore, in its Guide to Industrial According to Spear (2000) an EPF is: protection program which meets the Respiratory Protection (September [a] measure of the actual protection provided requirements of § 72.710 and 1987), published after the NIOSH in the workplace under the conditions of that incorporates the information required Respirator Decision Logic, NIOSH workplace by a properly functioning by proposed § 70.210(a)(2). offered an additional caution with respirator, defined as the ratio of regard to the effectiveness of PAPRs: concentration outside to concentration inside c. PAPR Protection Factor * * * samples [are] taken * * * during Until recently, powered air-purifying The degree of workplace respiratory normal work activities, while the respirator respirators were considered positive pressure is being worn and not worn. Because protection provided to the wearer by a devices. Field studies by NIOSH as well as properly functioning PAPR when concentration outside and concentration others, have indicated that these devices are inside are measured during periods of use as correctly worn and used depends on the not positive pressure, and that their assigned well as during periods of non-use, EPFs are unit’s ability to prevent the contaminant protection factors are inappropriately high. considered as estimates of the effectiveness from entering the wearer’s breathing (NIOSH, September 1987). of respirator use policies, rather than of zone. In general, the protection factor There is virtually no positive pressure intrinsic respirator performance capability. (PF) expresses PAPR performance as the in the PAPR. Respirable dust may enter A fourth type of protection factor, a ratio of the respirable dust the miners’ breathing zone through program protection factor (PPF) was concentration outside the respirator openings along the side and bottom of presented by 3M. In addition to the facepiece to the concentration inside the the visor, even when it is in the full variables accounted for in an EPF, a PPF facepiece. It reflects the effectiveness of lowered position. The extent to which reflects factors affecting the respirator a respirator used in conjunction with a respirable dust enters a miner’s programs effectiveness including: good respirator protection program. For breathing zone, depends, in part, on the example, a PF of 4 means that the * * * respirator selection, the respirator velocity of air provided to the MMU and design, training, maintenance, storage, particular respirator will reduce the on the miner’s work rate and his or her concentration of respirable dust actually supervision, program administration and angle of orientation to the airflow. monitoring, and any other variable that breathed to one forth of the NIOSH recommended in their 1987 affects program effectiveness. If any of these concentration outside the respirator. Respirator Decision Logic an APF of 25 program elements are deficient, the program In terms of worker health, there are for all loose-fitting hood or helmet protection factor will be adversely affected. various forms of the PF. One form is the PAPRs. However, the environmental An EPF is predicated upon proper fit assigned protection factor (APF). Terry conditions assumed in NIOSH’s and maintenance of a respirator, where Spear, et al., 2000, defined an APF as estimation of an APF for PAPRs are not a PPF is not. Unlike an APF or a WPF, follows: consistent with those in underground an EPF reflects the degree of respiratory APF is a special application of the general longwall mining operations, where high protection provided by a respirator over protection factor concept, defined as a air velocities for methane and dust an actual work shift given specific measure of the minimum nominal control are common. Other, unique occupational environmental conditions, anticipated workplace level of respiratory conditions of coal mining (obstructed protection that would be provided by a such as the velocity of air provided to views and difficulty communicating) control methane and respirable dust, properly functioning respirator or class of will compel miners to lift their visors. respirators to a high percentage (usually 95% and the time when miners must raise or more) of properly fitted and trained users Once the visor is raised, the respirator their visors to speak or see, given that * * *. The maximum specified use is no longer being worn in accordance a miner performs typical work activities concentration for a respirator is generally with conditions required for an APF of and uses the respirator in a typical determined by multiplying the exposure 25. manner. Based on MSHA experience limit for the contaminant by the protection The actual fit or seal of the respirator and miners’ testimony, it is not factor assigned to a specific class of helmet to the wearer, repeated work- reasonable to expect underground coal respirator. task motions in confined work spaces, miners to always wear the visor down. In the NIOSH Respirator Decision raising the visor, and high air velocities Due to this eventuality and MSHA’s Logic (May 1987), based on simulated along the longwall face all may requirement for an approved respiratory laboratory tests and some workplace significantly reduce the actual degree of protection program, an EPF study or protection tests (none of which respiratory protection provided in the studies, which reflect the conditions on replicated conditions in underground workplace. Therefore, it is imperative longwall MMUs, such as high air coal mines), NIOSH assigned, helmeted that such factors be taken into account velocities (i.e., exceeding 800 feet per PAPRs, properly worn, a protection when estimating the degree of minute (fpm)), would provide suitable factor (APF) of 25. NIOSH made the workplace respiratory protection a data for determining the effectiveness of following cautionary statement: PAPR provides to the wearer. PAPRs used there. According to Spear (2000) a Despite the fact that some of the PF’s Although not specifically discussed in [APFs] have a statistical basis, they are still workplace protection factor (WPF) is: the 2000 proposed rule, MSHA had only estimates of the approximate level of [a] measure of the actual protection provided reviewed each of the more than one protection. It must not be assumed that the in the workplace under conditions of that dozen protection factor studies numerical values of the APF’s presented in workplace by a properly functioning submitted in Energy West’s 1997 this decision logic represent the absolute respirator when correctly worn and used petition for rulemaking. The Agency minimum level of protection that would be * * * samples [are] taken * * * while the also reviewed the additional relevant achieved for all workers in all jobs against all respirator is being properly worn and used respiratory hazards. The industrial hygienist during normal work activities. In practice, studies submitted by commenters in or other professional responsible for the WPF is determined by measuring the response to the previous proposed rule, providing respiratory protection or concentration inside and outside the donned as well as studies MSHA identified. A evaluating respiratory protection programs is [worn] respirator during the activities of a review of the literature identified the therefore encouraged to evaluate as normal workday. fundamental fact that effectiveness of

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PAPRs in longwall mines is mediated by 49 percent, which is equivalent to an particular MMU. As discussed the high velocities of air customarily EPF of 2. The higher face air-velocity elsewhere in this proposed rule, MSHA found there. Those velocities are not conditions in this study best represent is proposing to allow the use of PAPRs comparable to the air velocities the higher velocities observed on only as a supplementary control experienced in most industry sectors longwalls. Today, the face air velocity in measure after all feasible engineering nor in those represented in the studies over 60 percent of the longwall MMUs controls have been applied to reduce used to determine the APF of 25, nor in exceed 500 fpm (MSHA, October 1999). exposure to the lowest possible level. In the majority of studies submitted by Thus, it is critical to take into account our view, these measures, when Energy West in 1997. the air velocity conditions when properly applied and maintained, will The headgate and tailgate air determining a PF for PAPRs used in control respirable dust to a level velocities observed by MSHA at 55 underground coal mines. reasonably near the applicable dust longwall MMUs were reviewed in 1999. Other researchers have reported that standard. Therefore, it would not be in These velocities ranged from 365 to helmeted PAPR systems are vulnerable the miner’s best interest or necessary for 1,645 fpm and from 200 to 1,400 fpm, to inward leakage into the wearer’s compliance purposes to apply the respectively. More importantly, breathing zone (Howie, et al., 1987; highest PF suggested by these studies. headgate velocities at 60 percent of the Sherwood, 1991). For example, Howie, Accordingly, MSHA is proposing that a MMUs exceeded 500 FPM and some 18 et al., found that increasing airflow PF factor of 4 be applied when using a percent exceeded 800 fpm. velocities from approximately 400 to PAPR under air velocity conditions of Approximately 55 percent of tailgate 800 fpm doubled the inward leakage of 400 fpm or less and a PF of 2 when the velocities exceeded 500 fpm and 11 the helmet when the airflow impinged air velocity is equal or exceeds 800 fpm. percent exceeded 800 fpm. on the wearer’s head only, and This approach recognizes the increased Laboratory and in-mine studies (EPF increased the leakage further when the level of respiratory protection that studies) show that air velocity is the airflow impinged on the wearer’s body PAPRs afford at lower air velocities and, single biggest factor affecting the degree and head (Howie, 1987). Subsequent based on our engineering judgement, of respiratory protection provided by a testing of a redesigned unit at a wind will allow operators to achieve PAPR. While important at longwall velocity of approximately 700 fpm compliance with the applicable dust MMUs, air velocity does not showed decreased inward leakage, standard on longwalls and other MMUs. significantly affect PAPR performance at yielding a PF of 6.3. This met the target Furthermore, the level of protection non-longwall MMUs where the velocity PF of 5, which was subsequently provided by a properly used PAPR will of air provided to control methane and proposed by the European Community assure miners that they are being respirable dust is normally less than 100 to be the standard for powered helmet protected from overexposure. fpm. There, the primary concern is the respirators. For example, if the air velocity to be PAPR’s ability to protect the miner from More recent studies conducted by maintained in the headgate and tailgate exposure to excessive quartz levels. Bhaskar, et al. (1994) at four western of a longwall MMU ventilated head to Cecala, et al., (1981) found protection of longwall MMUs indicated that, under tail is 400 fpm and 300 fpm, Racal Airstream helmets to be these workplace conditions, PAPRs had respectively, then PAPRs used there inversely related to ambient air velocity an average dust reduction efficiency of would be assigned a PF of 4. If on the in both laboratory and in-mine settings 83.8 percent (Ibid.). Although a different other hand, the ventilation plan calls for (Ibid). In other words, increased air sampling procedure was employed, this 850 fpm to be maintained in the velocity leads to decreased effectiveness result is consistent with the headgate location and 450 fpm in the of the PAPR. performance (average value of 84 tailgate location, then the applicable PF The expected degree of workplace percent) obtained by Cecala, et al., would equal 2. Because of the lack of respiratory protection that would be under air-velocity conditions less than data on PAPR performance under air- provided by a properly functioning 400 fpm. During the test period, Bhaskar velocity conditions ranging between 400 PAPR is also affected by the orientation reported headgate face velocities fpm and 800 fpm, MSHA has proposed of the helmet to the airflow. Cecala’s ranging from 345 to 500 fpm, with that, whenever plan velocities fall in wind tunnel tests clearly showed that, at approximately 88 percent of the that range, PAPRs used in the MMU be the higher airflow rates, helmet recorded velocities falling below 500 assigned a corresponding PF falling efficiency was greatest when facing fpm. The tailgate face velocities ranged between 2 and 4 which would be directly against the airflow and was from 280 to 550 fpm and only one determined using an interpolation reduced when the helmet was oriented exceeded 500 fpm. None of these tests formula [2 × (800/air velocity)]. For in other directions. This is extremely were conducted under face-velocity example, if the air velocity to be important since miners are more likely conditions that exceeded 800 fpm. As maintained in the headgate location is to orient their heads at an angle to the such, this study provides information 700 fpm, then the applicable PF would airflow, or to face downwind, than to on their effectiveness at lower velocity equal 2.3 [2 × 800fpm/700fpm]. face directly into the airflow. applications (i.e., under 500 fpm). The following example is meant to Cecala’s in-mine testing of the PAPRs In summary, there is consensus illustrate the application of the PF to produced an EPF confirming the inverse among studies that the effectiveness of determine the dust concentration to relationship between air velocity and the PAPR is reduced when air velocities which the wearer of a PAPR is expected the level of protection provided by are increased. The Cecala (1981) study to be exposed. Assume for purposes of PAPRs shown during wind tunnel alone, provided reasonable estimates of the example that the applicable dust testing. Under air-velocity conditions the degree of respiratory protection that standard is 1.5 mg/m3 and the airborne less than 400 fpm, the Airstream helmet PAPRs would provide to a wearer concentration of respirable dust is 2.6 averaged a respirable dust reduction of working on a longwall MMU where the mg/m3. Therefore, using a PAPR with a 84 percent, which is equivalent to an face velocity exceeds 800 fpm. PF =4 is expected to reduce the miner’s EPF of 6.4. However, under higher air- Consequently, this study provides the exposure to 0.65 mg/m3 (2.6 mg/m3 4). velocity conditions (1,200 fpm), the best data from which to estimate PAPR The range of PFs that MSHA will helmet’s dust reduction performance performance or the PF that should be allow to be assigned to PAPRs under decreased significantly, averaging only assigned to PAPRs authorized for a this proposed rule will provide a margin

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of safety for the miner. However, disproportionate to the expected results. term solution for preventing regardless of the particular PF allowed As explained in the discussion of occupational lung disease among coal by MSHA, full compliance with the § 70.209 in Section IV of this proposed miners. Similarly, the Dust Advisory provisions of the approved respiratory rule, the formal determination of Committee found that: protection program is necessary to whether all feasible engineering or Worker exposure to excessive levels of dust ensure that a PAPR’s protective value is environmental controls have, in fact, can be prevented by implementing a hazard not compromised. been implemented at a specific mine to surveillance program that provides mine prevent excessive dust concentrations E. Guidelines for Determining What Is a personnel with current information on actual will be made by the Administrator for dust levels in the work environment at all Feasible Dust Control Coal Mine Safety and Health based on times, and on the status of key dust control This proposed rule requires a mine the best available information, parameters. operator to implement all feasible experience, and engineering judgement. The Dust Advisory Committee’s final engineering or environmental controls report issued in 1996 made the that are technologically and F. Application of New Technology for Monitoring Coal Mine Dust Levels following recommendation with regard economically feasible to control to continuous dust monitors: respirable coal mine dust. The Federal Because of the ever changing mining Mine Safety and Health Review environment, more timely feedback on Once the technology for continuous dust Commission (Commission) has current dust conditions in the monitors has been verified, these measures addressed the issue of what MSHA must workplace should enhance miner health should be broadly applied in conjunction with other sampling methods for surveillance consider when determining what is a protection from coal workers’ and determination of dust control at all feasible control for enforcement pneumoconiosis (CWP) and silicosis. To MMUs and other locations at high risk of purposes. In cases involving the noise obtain such feedback requires a type of elevated dust exposure. standard for metal and nonmetal mines, dust monitoring instrument designed to the Commission has held that a control directly measure on a continuous basis Over the past decade significant is feasible when it: (1) Reduces the amount of respirable coal mine dust progress has been made as a result of the exposure, (2) is economically that is present in the work environment. R&D efforts sponsored by the former achievable, and (3) is technologically The availability of this information on a U.S. Bureau of Mines in conjunction achievable. See Secretary of Labor v. real-time basis would enable mine with MSHA. These efforts have Callanan Industries, Inc., 5 FMSHRC personnel to optimize mining advanced the technology for directly 1900 (1983), and Secretary of Labor v. procedures and dust control parameters measuring and displaying the amount of A.H. Smith, 6 FMSHRC 199 (1984). when dust levels approach the respirable coal mine dust contained in In determining technological applicable dust standard, thus averting mine air in real time, based on an feasibility of an engineering control, the possible overexposure. Knowing the inertial microweighing method called Commission has ruled that a control is actual dust levels during the shift would tapered element oscillating  deemed achievable if through also empower the miner to be more microbalance (TEOM ). The reasonable application of existing directly involved in the dust control development and commercialization of products, devices, or work methods process to safeguard their health. this technology was pioneered by with human skills and abilities, a The current monitoring program, Rupprecht & Patashnick Co., Inc. (R&P). workable engineering control can be which has been in effect since 1970, A TEOM-based monitor consists of a applied to the exposure source. The lacks this capability. Samples results are filter mounted on the end of a hollow control does not have to be ‘‘off-the- not known by mine personnel until days tapered tube. The other end of the tube shelf’’ or already available but, it must after completion of sampling. If there is is fixed rigidly to a base. The tube with have a realistic basis in present an overexposure, corrective action does the filter on the free end is oscillated at technical capabilities. Further, the not occur until the overexposure has its natural frequency. This frequency Commission has held that MSHA must been confirmed by the dust processing depends on the physical characteristics assess whether the cost of the control is laboratory and communicated to the of the hollow tube and the mass on its disproportionate to the ‘‘expected operator and MSHA. Consequently, any free end. Mine air is drawn through the benefits,’’ and whether the cost is so corrective action that may be taken filter that removes the respirable coal great that it is irrational to require its would only impact exposures on mine dust and then through the hollow use to achieve those results. The subsequent shifts. Therefore, the ability tube. As more respirable dust particles Commission has expressly stated that a to continuously monitor and display are removed and deposited on the filter, cost-benefit analysis is unnecessary in dust concentrations during the shift, the mass of the filter increases which order to determine whether an rather than depend solely on periodic causes the frequency of the tapered engineering control is feasible. measurements under the existing element to decrease. Because of the According to the Commission, an program, has been a goal for nearly two direct relationship between mass and engineering control may be feasible decades. Recent advancements in frequency change, the amount of even though it fails to reduce the personal dust monitoring technology respirable coal mine dust deposited on exposure to permissible levels in the make this goal achievable within the the filter is determined by accurately standard, as long as there is a significant next two years, presenting opportunities measuring the frequency change. By reduction in exposure. to further improve miner health combining the mass of dust and the Consistent with the Commission case protection from disabling occupational known volume of air that was drawn law, MSHA would consider three lung disease. through the filter during the period factors in determining whether The health benefits of continuous sampled yields a measurement of the engineering or environmental controls monitoring were recognized by both the respirable dust concentration. are feasible at a particular mine: (1) The Task Group and the Dust Advisory While the capabilities of the TEOM nature and extent of the overexposure; Committee. In 1992, the Task Group method have been applied to a variety (2) the demonstrated effectiveness of concluded that continuous monitoring of particle monitoring applications, the available technology; and (3) whether of the mine environment and dust first instrument designed specifically for the committed resources are control parameters offered the best long- mine use based on this technology was

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a machine-mounted continuous device, the PDM–1 uses a Higgins- testing and evaluation at the end of respirable dust monitor (MMCRDM). In- Dewell cyclone to separate the non- 2003. Both NIOSH and MSHA recognize mine testing of the prototype MMCRDM respirable dust. The redesigned cap- that to be accepted by the mining in the late 1990s demonstrated the lamp battery pack contains all the community, the PDM must reliably capability of the TEOM system to components, including two separate monitor respirable dust concentrations produce dust measurements in a mining batteries, to enable the instrument and in the mine environment with sufficient environment. However, because cap lamp to be operated independently. accuracy to permit exposures to be instrument accuracy could not be To accommodate monitoring over an effectively controlled on each shift. determined by in-mine testing and extended shift, the PDM–1 was designed Accordingly, as recommended by the questions about the comparability of to operate continuously for 12 hours. Dust Advisory Committee and urged by fixed-site versus personal sampling, The PDM–1 is designed to the mining community, MSHA is NIOSH decided to discontinue final continuously measure dust levels on encouraging deployment of personal development of the MMCRDM. real-time basis and provide information continuous dust monitoring technology In 1999, at the urging of labor and on (1) the cumulative average dust once verified as reliable under in-mine industry, NIOSH, in conjunction with exposure during the shift; (2) the current conditions by proposing a new standard MSHA, funded the development of a exposure level based on entire shift for the use of such monitors as part of personal dust monitor (PDM) based on duration (projected end-of-shift a comprehensive dust control program. the TEOM technology used in the exposure); and (3) the time-weighted As discussed under proposed § 70.220, MMCRDM. The ability to miniaturize average concentration (total mass of operators would be permitted to use the TEOM dust sensor without dust collect divided by the length of PDMs capable of continuously compromising its performance made it time the unit was operated) within 15 measuring and displaying dust levels possible in 2000 to develop the first minutes after the end-of-shift. The unit during the shift in conjunction with PDM capable of directly measuring in is capable of being used either in a shift engineering and administrative controls. real-time and displaying the mode in which the instrument is Each miner would be required to wear concentration of respirable coal mine programmed to operate for a specific such a device on each shift, unless the dust. The PDM–2, as it was called, was shift length (e.g., 8, 10, 12 hours) or in operator successfully demonstrated a two-piece unit consisting of a belt- an engineering mode. When operated in during verification sampling that the mounted dust monitor battery/pump the engineering mode, the miner could exposure of each miner working on the pack with a display and the TEOM dust same shift is represented by sampling sensor that was attached to the lapel like program periods during the shift to record dust levels during specific the DO and/or another occupation the standard sampling device in use under administrative control. For today. Although laboratory and in-mine mining cycles or at specific dust- generation sources in the mine. The additional specific details regarding the tests showed the PDM–2 to be proposed application of PDM under this dependable and capable of accurately display on the instrument has various screens that show the (1) current time of proposed rule refer to the discussion of measuring the amount of dust that § 70.220 in section IV of the preamble. accumulated on the filter, concern was day, (2) elapsed time since beginning of expressed by miners about the size of the shift, (3) total amount of dust IV. Section-by-Section Discussion of the instrument. Specifically, miners accumulated on the filter since the start Proposed Rule of sampling which is stored in an believed that since they were already A. Part 70 required to carry a cap-lamp battery and internal memory for analysis, (4) dust a self-contained self rescuer on their concentrations, and (5) a bar graph that The following explains, section-by- belt, there was no room for a separate shows the average dust concentration of section, each provision of the proposed dust monitor battery/pump pack. They the last 30 minutes. The PDM–1 is also rule. The text of the proposed rule is also indicated that the TEOM dust capable of showing whether the included at the end of the document. instrument was bumped significantly or sensor was too bulky, heavy and Section 70.1 Scope interfered with work activity. As a result tipped beyond 90 degrees. This of these concerns, further efforts to information will be stored along with Under the proposed rule, the existing refine the PDM–2 were suspended by information on the amount of dust that scope will remain the same. It sets forth NIOSH. has accumulated on the filter and the mandatory health standards for each In 2001, NIOSH contracted the concentration data which can be underground coal mine subject to the development of a one-piece version of accessed with a personal computer at Federal Mine Safety and Health Act of the PDM that would be less the end of the shift and analyzed. While 1977. cumbersome to mine workers. Efforts to the performance of the PDM–1 to Section 70.2 Definitions date have produced a belt-worn accurately and precisely measure instrument (PDM–1) that contains the respirable coal mine dust in the mine The technical terms that were dust monitor and the miner’s cap lamp environment and its durability under in- developed for use in this part are battery in a single package. To improve mine conditions has yet to be defined in the proposed rule. These wearer convenience and to simplify the extensively evaluated, preliminary include ‘‘citation threshold value,’’ monitor, the sample inlet for the indications from the limited testing ‘‘dust control parameters,’’ and instrument was moved from the performed to date are that the PDM–1 ‘‘engineering or environmental traditional lapel location to the cap has the potential to provide timely controls.’’ Some existing definitions of lamp of the hard hat. A pump mounted information on dust levels and miner terms such as ‘‘certified person’’ and in the instrument transports the dust- exposure. Although MSHA has ‘‘respirable dust’’ have been modified to laden air that enters the inlet to the confidence in this technology, a final more clearly convey the intended instrument through a conductive determination of the applicability and meaning under the proposed rule. These silicone rubber tube that runs parallel to suitability of PDMs under the and other modifications discussed the lamp cord. Unlike the PDM–2 which conditions of use being proposed is not below reflect changes resulting from the employed a 10-mm Dorr-Oliver nylon expected until after completion of the removal of existing paragraphs, the cyclone used in the approved sampling scheduled laboratory and in-mine transfer of other paragraphs, and the

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addition of new regulatory text. Other Administrative Control Certified Person changes were made in response to ‘‘Administrative control’’ would mean The existing definition would be previous commenters to make them a work practice intended to reduce an modified by removing references to consistent with the common usage of individual miner’s exposure to existing §§ 70.202 and 70.203. The such terms. For example, under this respirable dust at the assigned job provision requiring the use of a certified new proposed rule, the Agency’s position or occupation by altering the person to conduct sampling is being definition of the term ‘‘concentration’’ way in which the assigned work is transferred to revised § 70.201. Existing has been changed to reflect the performed. Examples include rotation of § 70.203 which requires approved conventional definition. In doing so, it miners to areas having lower sampling devices to be maintained and was necessary to include and define a concentrations of respirable dust, calibrated by a certified person will be new term ‘‘equivalent concentration,’’ altering the way in which specific tasks retained and redesignated as § 70.202. which originally appeared within the are performed, rescheduling of tasks, proposed definition of the term and modifying work practices to reduce Citation Threshold Value (CTV) ‘‘concentration’’ in the previous exposure. An ‘‘administrative control’’ ‘‘Citation threshold value’’ would proposed rule. must be (1) capable of being objectively mean the lowest acceptable equivalent This proposed rule also defines new reviewed and monitored to confirm that dust concentration measurement terms to clarify the process of verifying it has been properly implemented, (2) demonstrating that the applicable dust the adequacy of the dust control clearly understood by the affected standard has been exceeded at a high parameters specified in a mine miners for the controls to be effective, level of confidence and at which MSHA ventilation plan in controlling and (3) applied consistently over time. would cite an operator for a violation of §§ 70.100 or 70.101 under proposed respirable dust in a mechanized mining Approved Sampling Device unit. Specifically, MSHA provides § 70.218. Since MSHA would be definitions of ‘‘critical value,’’ ‘‘Approved sampling device’’ would assuming responsibility for all ‘‘protection factor,’’ ‘‘verification mean a sampling device approved by compliance sampling under this limits,’’ and ‘‘verification production the Secretary and the Secretary of proposed rule, a determination of level.’’ Finally, the definition of Health and Human Services under part noncompliance would be based solely ‘‘normal production shift’’ would be 74 (Coal Mine Dust Personal Sampler on the results of single-shift samples removed to be consistent with the Units) of this title; or approved by the collected by MSHA. Appendix C proposed revocation of operator Secretary when it has been explains how each critical value listed sampling requirements for purposes of demonstrated that a respirable dust in Table 70–1 was derived. Each CTV is determining compliance with the concentration measurement can be calculated to ensure that a citation will applicable dust standard. converted to a concentration be issued only when a single-shift measurement equivalent to that sample demonstrates noncompliance The proposed rule also includes other obtained with an approved sampling with at least 95 percent confidence. terms like ‘‘feasible’’ for example, which device. Under the proposed rule, MSHA have not been defined. The term as used will continue to use sampling devices Concentration applies to the suitability of the types of approved by NIOSH pursuant to The existing definition would be engineering or environmental controls existing 30 CFR part 74. To modified by replacing the term required to control respirable dust accommodate the adoption of advanced ‘‘substance’’ with ‘‘respirable dust’’ to under prescribed operating conditions. sampling devices in the future such as more clearly convey the meaning under Since individual mine conditions would continuous respirable dust monitors, the the proposed rule. dictate the type of engineering or proposed rule would permit the environmental controls to be considered Secretary to approve and use any Control Filter as suitable candidates, MSHA has technologically advanced sampling ‘‘Control filter’’ would mean an refrained from providing an explicit device that should become available in unexposed or clean filter cassette of the definition of this term. Instead, as noted the future but could not be approved same design and material as the exposed in the discussion under section III.E. of under the regulatory requirements of 30 filter cassette used for sampling that is this preamble, MSHA intends to follow CFR part 74. pre- and post-weighed on the same day the Federal Mine Safety and Health Therefore, under the proposed rule, as the exposed filters. Its use is intended Review Commission case law as to what any newly developed sampling to eliminate the potential for any bias constitutes a feasible control for instrument would be considered an that may be associated with day-to-day enforcement purposes. The Agency approved device pursuant to this changes in laboratory conditions or further notes in that discussion that the definition when the Secretary introduced during storage and handling final determination of whether a demonstrates that the respirable dust of the filter capsules. The control filter particular operator has implemented all concentration measured by the new is used to adjust the resulting weight feasible engineering or environmental instrument can be converted to a gain obtained on each exposed filter controls would be made by the concentration measurement equivalent capsule. That is, any change in the Administrator for Coal Mine Safety and to that obtained by a device approved weight of the control filter will be Health. That determination would be under 30 CFR part 74 of this title. subtracted from the change in weight of based on the best available information To encourage greater innovation in each exposed filter. and on the combined experience and sampler design without compromising engineering judgement of an MSHA accuracy, comments are specifically Critical Value expert panel. solicited on this approach of approving ‘‘Critical value’’ would mean the The following explains the new and sampling devices. MSHA also solicits maximum acceptable equivalent dust revised definitions of terms that are comments on an alternative approach concentration measurement used in the proposed rule. Please based on the International Standards demonstrating that the applicable closely examine the context of the term Organization (ISO) definition of verification limit has been met at a high as used in each proposed section. respirable dust. level of confidence. Appendix A

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explains how each critical value listed dust, as measured by an approved hours, it is necessary to convert dust in Table 70–1 was derived. sampling device, converted to an 8-hour concentration measurements to equivalent concentration as measured equivalent, 8-hour values as measured Designated Area (DA) by a Mining Research Establishment by the MRE instrument. The existing definitions would be (MRE) sampler. This conversion is The first step in the conversion from modified to certify that the Secretary normally accomplished in two steps, ‘‘concentration’’ to ‘‘equivalent may identify DAs which is consistent unless powered air-purifying respirators concentration’’ is intended to make the with existing procedures that have been (PAPRs) are used, and then an measurement equivalent to the in effect since 1980. Once identified, the additional adjustment is made to concentration measured by an MRE location of these DAs and the respirable account for the expected workplace instrument. This instrument was dust control measures to be used at the level of respiratory protection being designed to selectively collect airborne dust generating sources for these provided the wearer. In the first steps, dust in a way that would approximate locations must be contained in the the concentration measurement is the deposition of inhaled particles in operator’s approved mine ventilation multiplied by a constant factor the lung. Because the MRE instrument plan as provided for under § 75.371(t) of prescribed by the Secretary specifically was large and cumbersome, other more this title. However, the operator would for the approved sampling device. In the portable samplers were developed for not be required to sample these areas second step, that result is then use in U.S. coal mines. Currently under the proposed rule. MSHA is also multiplied by t/480, where t is the approved sampling devices use a 10– proposing to transfer the requirement sampling time in minutes if longer than mm nylon cyclone to separate the for identifying each DA as specified in eight hours, to make it equivalent in respirable fraction of airborne dust, existing § 70.208(e) to revised § 70.2. dosage to the concentration as measured instead of the four horizontal plates by an MRE sampler on an 8-hour work Dust Control Parameters used in the MRE instrument. Such shift. Since verification sampling will be differences in instrument design lead to ‘‘Dust control parameters’’ would conducted over the course of a full systematic differences in the amount of mean the respirable dust control production shift of the MMU only, and dust collected. Since 1980, provisions specified in an approved not over the miner’s entire work shift measurements made using the currently mine ventilation plan, including which includes travel to and from the approved cyclone-based devices specific engineering or environmental MMU, except when employing personal operating at a flow rate of 2.0 liters per continuous dust monitors (PCDM), t controls, maintenance procedures, and minute (lpm) were multiplied by the will also be equal to the length of a full other measures designed to control constant factor of 1.38 prescribed by the production shift. If the full production respirable dust levels in the working Secretary for the approved sampling shift is eight hours or less, then t must environment. These may also include, if device used. Application of this factor approved by MSHA, supplementary equal 480 minutes. In cases where PAPRs are used, the compensates for the difference in dust controls such as powered air-purifying collection characteristics and makes the respirators and administrative controls. equivalent concentration measurement obtained following step two is adjusted measurements equivalent to what would These measures are required for the be obtained using an MRE instrument. protection of miners from excessive further to account for the expected levels of respirable dust and must be in workplace level of respiratory Similarly, the second step in the use on every production shift. protection being provided the wearer. conversion from ‘‘concentration’’ to This is accomplished by dividing the ‘‘equivalent concentration’’ is intended Engineering or Environmental Controls equivalent concentration by the to compensate for differences between ‘‘Engineering or environmental protection factor specified in the current conditions and conditions under controls’’ would mean methods that are approved ventilation plan for the which the existing applicable dust designed to control the quantity of mechanized mining unit under a PAPR standards were developed. Specifically, respirable dust that is released into the protection program. The result it is designed to ensure that miners work environment by affecting the rate represents a surrogate measure of the working shifts longer than eight hours of generation or by suppressing it at the respirable dust concentration to which will be afforded the same level of source of generation, or by diluting, the miner is exposed while wearing the protection as miners working an 8-hour capturing or diverting the generated PAPR. shift. MSHA developed the existing dust. Examples include improved The current U.S. coal mine applicable standards from 8-hour shift exposure cutting tools, deep-cutting, water-spray dust standard is based on epidemiologic measurements. Therefore, MSHA will delivery systems and orientation, air studies of British coal miners. In these adjust the measured concentration to be quantities and velocities, dust studies, miners routinely worked 8-hour equivalent, in its effect on cumulative collectors, and passive barriers. shifts and their respirable dust exposure, to a concentration over an 8- Throughout the proposed rule, the terms exposures were assessed based on 8- hour exposure period. This is ‘‘engineering’’ and ‘‘environmental’’ hour measurements using an instrument accomplished by multiplying the controls are used interchangeably. known as the MRE instrument. Work concentration measurement by t/480, shifts in U.S. coal mines now frequently where t is the sampling time (i.e., length Equivalent Concentration exceed eight hours. Therefore, to of the sampled shift) in minutes. ‘‘Equivalent concentration’’ would provide the intended level of protection The formula for an equivalent mean the concentration of respirable to miners working longer than eight concentration is:

 accumulated dust (mg) t equivalent concentration (mg/m3 ).=×138 ×  t× airflow rate  480 min

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where t = sampling time in minutes and concentration measurement of 2.16 mg/ the MRE-equivalent exposure airflow rate = 0.002 m3/min). The m3 is divided by 2, which yields 1.08 accumulated during the sampled shift is product of t and the airflow rate is the mg/m3, the equivalent concentration to 17.3 mg-hr/m3, which exceeds the total volume of air from which dust is which the wearer of the PAPR is intended limit of 16 mg-hr/m3. Under accumulated on the filter. exposed. the definition of ‘‘equivalent The following example is meant to This adjustment does not change the concentration’’ provided here, this will illustrate the effect of the second step in daily limit on the accumulated dose of be reflected by the fact that, when more the conversion, multiplication by t/480, respirable coal mine dust as intended by than 16 mg-hr/m3 (MRE-equivalent which adjusts for the full length of the the existing exposure limit for coal mine exposure) is accumulated over the sampled shift. Suppose a DO sample is dust. Since the current limit was based course of the particular shift sampled, collected over a 9-hour shift and that the on the assumption that exposure occurs the equivalent concentration will amount of dust accumulated during the over an 8-hour shift, it corresponds to a exceed 2.0 mg/m3, regardless of the shift is 1.5 mg. If the concentration were daily cumulative dose of respirable coal shift’s length. not adjusted to an 8-hour equivalent mine dust of 8 × 2.0 = 16 mg-hr/m3 as concentration, the MRE-equivalent measured by the MRE instrument. The Similarly, using a currently approved concentration would be calculated as proposed definition of equivalent sampler, the plan verification limit for 1.92 mg/m3. Under the proposed concentration will maintain this same respirable quartz dust (i.e., 0.1 mg/m3) definition of ‘‘equivalent MRE-equivalent 16 mg-hr/m3 daily will be exceeded when the total amount concentration,’’ this quantity is then limit, regardless of the length of the of quartz dust amassed on a filter during multiplied by 540/480, yielding an working shift being sampled. the full production shift exceeds 0.07 equivalent concentration measurement To continue the example, the mg, regardless of the shift’s length. For of 2.16 mg/m3. Let us suppose now that exposure accumulated during the example, if 0.08 mg of quartz dust were this concentration measurement was for sampled working shift is the same, accumulated over the course of a 12- a longwall occupation under a PAPR whether over 8 hours at an average of hour shift, then the equivalent protection program with an applicable 2.16 mg/m3 or over 9 hours at an concentration of respirable quartz dust protection factor of 2. Therefore, the average of 1.92 mg/m3. In either case, would be calculated as:

0. 08 mg 720 min 138. × ×=0./, 115 mg m3 720 min× 0.002 m3/min 480 min

This is exactly the same value of the comparing the adjusted concentration to Material Produced equivalent concentration that would be the concentration limit originally ‘‘Material produced’’ would mean the obtained if 0.08 mg of quartz dust were intended for miners working an 8-hour amount of coal and/or any other accumulated on an 8-hour shift. shift, the same cumulative exposure substance(s) extracted by a mechanized MSHA originally proposed a different limit is applied on individual shifts for mining unit during a production shift. but mathematically equivalent method all miners. In order to properly assess the of adjusting concentrations to an 8-hour It should be noted that the American effectiveness of the ventilation plan equivalent and solicited comments on Conference of Governmental Industrial requirements for respirable dust control the proposed method. The proposed Hygienist (ACGIH) approach of reducing and for subsequent monitoring method would have defined the permissible concentration to purposes, MSHA proposes to require ‘‘concentration’’ to mean what is here that the operator record and make defined as ‘‘equivalent concentration.’’ compensate for the extension of a shift beyond eight hours is similar in its available records of the amount of Instead of making an explicit material produced by each mechanized adjustment to the concentration, using effect to the approach taken here of adjusting the equivalent concentration mining unit each shift under a new the factor of t/480 as in the present paragraph (h) of § 75.370. definition, the proposed rule would upwards and comparing it to a fixed have substituted 480 for the actual limit. MSHA makes similar adjustments Mechanized Mining Unit (MMU) sampling time in the definition of for extended work shifts in the The existing definition would be respirable dust concentration. The enforcement of exposure limits in metal modified by deleting the reference to proposed definition of ‘‘equivalent and nonmetal mines under 30 CFR § 70.207(e) (Bimonthly sampling; concentration’’ is meant to both 56.5001 and 57.5001. Taking into mechanized mining units), and preserve the ordinary definition of account the reduced recovery time that replacing it with proposed § 70.206(d); ‘‘concentration’’ and to clarify the results from an extended work shift and by transferring the requirements for adjustment to an 8-hour equivalent. would have led to a numerically greater identifying each MMU specified in MSHA believes that the proposed and more protective adjustment, but this existing §§ 70.207(f)(1) and (f)(2), to adjustment to an ‘‘8-hour equivalent would also have introduced additional revised § 70.2. concentration’’ is necessary to protect complexities in the calculation of MRE miners, who normally work equivalent concentration measurements. nontraditional or extended shifts, from The Secretary believes that the method ‘‘MRE’’ would mean Mining Research excessive exposures. A miner working proposed strikes a reasonable balance Establishment of the National Coal for ten hours at an average between no adjustment at all, and a far Board, London, England. concentration of 2.0 mg/m3 will inhale more complex adjustment that would and retain more respirable coal mine Personal Continuous Dust Monitor attempt to model clearance, deposition, (PCDM) dust as a result of that specific shift than and retention mechanisms. a miner working for eight hours at the ‘‘Personal continuous dust monitor’’ same average concentration. By would mean a type of approved

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instrument capable of accurately primarily for surveillance purposes to be included in a written PAPR measuring the concentration of prevent an individual miner from being protection program, which must be respirable dust on a continuous basis overexposed on a particular shift and approved by the district manager before during an entire shift and displaying in whether such devices need to be first it can be implemented. Based on the real-time the measured dust exposure approved by MSHA for use in available technical information and information. To meet the definition of underground mines. sound engineering judgement, MSHA ‘‘approved device,’’ the Secretary must would permit a PF ranging from 2 to a Powered Air-Purifying Respirator demonstrate that the respirable dust maximum of 4 to be assigned to a (PAPR) concentration measured by such an particular MMU, depending on air instrument can be converted to a ‘‘Powered air-purifying respirator’’ velocity. concentration measurement equivalent (PAPR) would mean a type of air- If, according to the ventilation plan, to that obtained by a device approved purifying respirator that uses a blower the minimum air velocity to be under 30 CFR part 74 of this title. to force ambient air through air- maintained in the headgate of a Comments are solicited on the practice purifying elements to the inlet covering longwall MMU ventilated head-to-tail is of tying the performance of new sampler (a visor), which provides a partial seal less than 400 feet per minute (fpm), then designs to the currently approved with the face, to deliver filtered air to PAPRs used in the MMU would be sampling device. the miner’s breathing area. This category assigned a PF equal to 4. If the The PCDM must be capable of of respirator must be approved by the minimum air velocity to be maintained displaying (1) the cumulative average National Institute for Occupational in the location specified in the plan dust exposure during the shift; (2) the Safety and Health under 42 CFR part 84 exceeds 800 fpm, then the assigned PF current exposure level based on entire and by MSHA under 30 CFR part 18; would be 2. If the minimum air velocity shift duration (projected end-of-shift and, offer head and face protection in specified in the plan falls between 400 exposure); and (3) the time-weighted compliance with 30 CFR 75.1720(a) and fpm and 800 fpm, then PAPRs used in average concentration (total mass of (d) of this title. The reasons for the MMU would be assigned a dust collect divided by the length of excluding other types of approved corresponding PF falling between 2 and time the unit was operated) within 15 respirators are discussed in section 4. minutes after the end-of-shift. The entire III.D.4. of the preamble. Because there is a lack of data on the performance of PAPRs under actual air- unit must comply with MSHA intrinsic Protection Factor safety regulations and pass tests for velocity conditions ranging between 400 electromagnetic interference for ‘‘Protection factor’’ (PF) would be a and 800 fpm, MSHA is proposing an emissions using ANSI C95.1–1982 and measure of the expected degree of interpolation formula [2 × (800/air 47 CFR part 15 and for immunity/ workplace respiratory protection that velocity)] for determining the PF to be susceptibility using IEC 61000–4. Since would be provided to the wearer by a assigned to a MMU when the specified work shifts longer than 8 hours are properly functioning PAPR when air velocity to be maintained falls in that common in mining, the PCDM must correctly worn and used. The PF range. For example, if the minimum air have sufficient battery capacity to expresses PAPR performance as the velocity to be maintained in the operate continuously for up to 12 hours. ratio of the respirable dust headgate is 550 fpm, then the assigned To ensure that air monitoring results are concentration outside the respirator PF would be calculated as: 2 × (800fpm/ sufficiently accurate across the relevant facepiece to the concentration inside the 550fpm) = 2.9. A reasonable alternative range of exposure levels, the PCDM facepiece. It reflects the effectiveness of interpolation formula, 6—(air velocity/ must meet an accuracy criterion of a respirator used in conjunction with a 200), would yield somewhat higher ±25% of a reference value determined good respirator protection program. For protection factors for velocities between using the currently approved sampling example, a PF of 4 means that the 400 fpm and 800 fpm. However, given device (P/N 45243) with 95% respirator is expected to reduce the the absence of supporting data, MSHA confidence. concentration of respirable dust actually selected the proposed interpolation The Agency solicits comments on breathed to one fourth of the formula because it yields a more how continuous dust monitors could be concentration outside the respirator. conservative PF. applied to limit exposure of coal miners Factors such as air velocity at the Comments are invited on the to respirable coal mine dust. working face and raising of the visor proposed method of establishing the Specifically, comments are solicited on during the shift significantly impact the applicable PF and on the interpolation the proposed performance, accuracy, effectiveness of a PAPR. Therefore, such formula proposed for specified air and approval requirements for personal factors should be taken into account velocities ranging between 400 fpm and continuous dust monitoring devices, when estimating the degree of 800 fpm. Data are requested in support and whether less stringent requirements respiratory protection a PAPR provides of any recommendations that different should be imposed on devices designed in the workplace. Although NIOSH has protection factors should be assigned to for surveillance and not for compliance recommended that loose-fitting hood or MMUs authorized to use PAPRs. purposes. What would be an acceptable helmet PAPRs should be assigned a PF level of accuracy of such a device if of 25, the environmental conditions Quartz used for surveillance purposes (i.e., observed in the studies used in NIOSH’s The existing definition would be identifying dust-generating sources and estimation of an assigned protection modified by specifying the analytical magnitude of dust concentrations), for factor (APF) are not consistent with method that MSHA has been using since compliance determinations, or for those found in underground coal mines, 1983 to determine the quartz content of control enhancement purposes (i.e., where high air velocities for methane respirable dust samples. The reason for provide a means to take corrective and dust control are common. this modification is to standardize the measures in response to instrument Under this proposal, the PF that analytical procedure, thereby enabling readings by adjusting specific controls)? would be assigned to PAPRs authorized other certified laboratories to produce Comments are also solicited on the for a particular MMU depends on the air quartz determinations compared to performance requirements for velocity that will be maintained at the those made by MSHA. Also, to continuous dust monitors used working face. The applicable PF would accommodate the adoption of improved

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or other quartz analytical techniques in dust in the mine environment at the µg/m3 for quartz dust but not the the future, the definition of ‘‘quartz’’ has time of sampling exceeded 270 µg/m3, verification limits, the operator would been expanded in the proposed rule to or more than two and a half times the need to sample at least two more shifts provide MSHA the flexibility to use permissible level of 100 µg/m3. The only according to Table 70–1 to verify the alternative analytical techniques once action that MSHA could take in this adequacy of the plan parameters, these techniques have been particular situation is to initiate the provided that no sample exceeds 1.93 demonstrated to provide quartz process of establishing a new applicable mg/m3 for respirable coal mine dust or measurements that are equivalent to the dust standard, which, on average, can 97 µg/m3 for quartz dust. If the highest currently used analytical method. take at least one month or longer. production level was achieved on the During this period, the existing third shift sampled and the dust Respirable Dust applicable dust standard remains in concentration measurements obtained The existing definition has been effect. on that shift were low enough according modified by transferring the Under the proposed rule, MSHA to Table 70–1 to verify the plan requirement for what constitutes an would require operators to incorporate parameters on a single shift, the approved sampling device to the dust control parameters in mine operator would establish a VPL equal to proposed new definition of the term ventilation plans that are designed to the production achieved on that shift. If, ‘‘approved sampling device’’ above. effectively control exposure to both on the other hand, the dust Verification Limits respirable coal mine dust and quartz concentration measurements obtained dust. To ensure the adequacy of the on the third shift with the highest ‘‘Verification limits’’ would mean the operator’s dust control strategy, MSHA production level were not low enough maximum equivalent dust concentration would determine the mass of quartz to verify the plan parameters on a single for which the dust control parameters, contained in each verification sample shift and a determination of the plan’s specified in the ventilation plan for a and express the concentration of quartz adequacy was based on these three particular MMU, have been verified as in the mine air as an airborne shifts, the operator’s VPL would be the effective in maintaining dust levels concentration and not as a percentage as minimum production achieved during during the entire production shift. has been the long-standing practice. verification sampling. In any case, the Under the proposed rule, MSHA will MSHA believes that by requiring VPL would become part of the require mine operators to address both operators to anticipate exposure to operator’s ventilation plan. respirable coal mine dust exposure and quartz dust in the initial design of the the potential for exposure to quartz dust control parameters, especially at Working Face when designing the dust control those operations with a quartz exposure ‘‘Working face’’ would mean any parameters specified in a mine history, and by adopting the new place in a coal mine in which work of ventilation plan by proposing two procedures for setting a reduced dust extracting coal from its natural deposit separate respirable dust limits—2.0 mg/ standard as outlined in section III.B., the in the earth is performed during the m3 for respirable coal mine dust and 100 level and quality of miner health mining cycle. µg/m3 for respirable quartz dust for protection in the workplace will be verification sampling. significantly enhanced. Sections 70.100 Through 70.101 The Dust Advisory Committee Respirable Dust Standards recognized that a significant quartz Verification Production Level (VPL) exposure hazard continues to exist in ‘‘Verification production level (VPL)’’ Section 70.100 Respirable Dust coal mines, especially for operations would mean the tenth highest Standards When Quartz Is Not Present such as roof bolting. Based on recent production level recorded in the most MSHA is proposing no substantive MSHA data (April 23, 2002), 298 or (58 recent 30 production shifts. It is an changes in existing § 70.100(a) and (b), percent) of the 517 producing estimate of the 67th production except for removing the reference to underground coal mines are operating percentile within a MMU. Under the § 70.206 (Approved sampling devices; on a reduced applicable dust standard proposed rule, the VPL is the minimum equivalent concentrations) from existing due to the presence of high quartz levels production level at which the operator paragraphs (a) and (b) and replacing it in the working environment. This data must demonstrate the adequacy of the with revised § 70.2. The requirements also shows that 65 percent of the more plan parameters in controlling contained in revised § 70.2 are similar to than 470 roof bolters and 27 percent of respirable dust. To enable the operator the previous standard in § 70.206. The the MMUs required to be sampled to establish the VPL required under proposed rule retains the applicable bimonthly by mine operators must proposed § 75.371(f), the operator would dust standard of 2.0 mg/m3 in existing comply with a reduced dust standard. be required to begin maintaining records paragraph (a) and the intake air standard The number of reduced standards in of the amount of material produced by for respirable dust of 1.0 mg/m3 in effect indicates that quartz exposure each MMU during each shift in existing paragraph (b), which have been remains a significant health risk for accordance with proposed § 75.370(h) of in effect since 1972. miners. this title. Under the current program, miners If records for 30 production shifts are Section 70.101 Respirable Dust can be exposed to excessive quartz not available to establish a VPL, as in Standard When Quartz Is Present levels during the period of time the case of a new MMU, the operator MSHA is proposing to retain the necessary to establish the applicable would use the minimum production existing formula (10 divided by the dust standard that would apply to a actually achieved on any shift used to concentration of quartz, expressed as a particular MMU. For example, consider verify the adequacy of the plan percentage) for reducing the applicable a recent situation where an MSHA dust parameters as the VPL. For example, dust standard below 2.0 mg/m3 in sample of a roof bolter was 0.9 mg/m3, assume an operator initiates verification proportion to the percentage of quartz which complied with the applicable sampling at a longwall MMU. If the dust when the quartz content of the dust standard of 1.3 mg/m3. However, concentration measurements obtained respirable dust in the mine atmosphere the results of quartz analysis indicated on the first shift exceed either 1.85 mg/ exceeds 5.0 percent. However, the that the actual concentration of quartz m3 for respirable coal mine dust or 93 Agency is proposing to change the

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procedures for determining the average converted to an equivalent designed with sufficient battery capacity quartz percentage used to calculate the concentration as measured with another for one 12-hr work shift of operation. applicable dust standard. Only the sampling device approved under part 74 It should be pointed out that the results of MSHA samples would be used of this title. duration of MSHA sample collection to establish the applicable dust Proposed new paragraph (b) would will continue to be limited to 480 standard. The quartz results of the three retain the requirements in existing minutes. The sampling device will be most recent valid MSHA samples would § 70.202(a) and (b) that sampling operated portal-to-portal and remain be averaged and the resultant percentage required under this part be conducted operational during the entire shift or for would be used to set the new applicable by an individual certified by MSHA and 8 hours, whichever time is less. dust standard. However, if an entity is the manner by which a person would be Consistent with accepted industrial already on a reduced standard when certified. Therefore, existing § 70.202(a), hygiene practice, proposed paragraph these revised procedures become (b), and (c) would be removed. (d) will require the operator to use effective, a new applicable dust While the sampling device would control filters when verifying the standard will be established by continue to be worn or carried to and adequacy of the plan parameters under averaging the results of the first two from the MMU as required by existing proposed § 70.206 or § 70.220(c). A MSHA samples taken under the revised § 70.201(b), proposed § 70.201(c), the control filter is an unexposed filter of procedures with the quartz percentage existing requirement that sampling the same design as the filter cassette associated with the reduced standard in devices be operated portal-to-portal and used for sampling, that is pre- and post- effect. If fewer than two MSHA samples for a period no longer than eight hours weighted on the same day as the filter are taken, the existing applicable dust would be removed. Instead, since the cassettes used for verification sampling. standard will continue to remain effect. objective is to assess the adequacy of the MSHA first began using control filters in Application of the revised procedures dust control parameters in effect in each its enforcement program in May 1998 will result in the setting of reduced MMU under proposed § 70.206 and and continues this practice today. The standards that will (1) more accurately § 70.215, except when using a personal reason for requiring their use by represent the quartz percentage of the continuous dust monitor (PCDM) under operators is to improve the accuracy in respirable dust in the environment at proposed § 70.220, the sampling device making weight-gain measurements of the time of sampling; (2) reflect the would be operated only during the the exposed filter cassettes by dynamics of the mining process and the period that the production crew spends eliminating the effect of differences in changing geologic conditions of the in the MMU. That is, under proposed pre- and post-exposure laboratory mine strata; and (3) continue to protect § 70.206 the sampling device would (1) conditions, or changes introduced miners over multiple shifts. be turned ‘‘ON’’ when the production during storage and handling of the filter Under the proposed rule, MSHA crew arrives at the MMU, regardless if cassettes. The control filter will be used would also begin reporting the quartz any actual mining is taking place; (2) to adjust the weight gain obtained on content to the nearest tenth of a percent, remain operational during the entire each exposed filter by subtracting any instead of the current practice of shift that the production crew remains change in the weight of the control filter truncating results to the nearest full in the MMU, regardless of the number from the change in weight of each percent. This is more protective for the of hours worked; and (3) be turned exposed filter. This is especially miner because it will permit MSHA to ‘‘OFF’’ at the end of the shift as the important since the filter cassettes to be also set reduced standards at such levels production crew exits the MMU. used by operators will be pre- and post- as 1.1 mg/m3, 1.4 mg/m3, 1.6 mg/m3, 1.8 On the other hand, if using a PCDM weighed to the nearest microgram (0.001 mg/m3, and 1.9 mg/m3. Setting these under proposed § 70.220, the sampling mg). The other modification to the particular standards was not device would be operated portal-to- procedures for processing operator mathematically possible using the above portal and would remain operational samples will be to discontinue the formula due to the practice of truncating during the entire work shift or for 12 practice of truncating (to 0.1 mg) the the average quartz percentage. hours, whichever time is less, to ensure recorded weights used in calculating that the miner’s entire work shift is dust concentrations. This means that Section 70.201 Sampling; General and controlled. Because the use of a PCDM Mine Safety Appliances Company Technical Requirements will permit the operator to make (MSA), which upgraded its weighing MSHA is proposing to modify the adjustments in administrative controls, equipment in 1996 and uses the same general requirements for operator without MSHA approval, at anytime balance as MSHA’s Coal Dust sampling under existing § 70.201. The during the work shift, the duration of Processing Laboratory, will be permitted proposed rule would remove existing sampling is not limited to the time to follow MSHA and use all significant paragraph (d), revise and redesignate (b) period the production crew spends in digits associated with the weighing as (c) and existing (c) as (g), revise the MMU as discussed in the previous capability of the balance (0.001 mg) paragraph (a), and add new (b), (d), (e), paragraph but, instead, must be carried when pre-weighing operator dust (f), (h), and (i). out over the entire work shift to ensure cassettes. These changes will enhance To minimize repetition and to that each miner using a PCDM was not the proposed process of verifying the streamline the proposed requirements, personally overexposed. Simply stated, adequacy of plan parameters. This will paragraph (a) would be modified by the PCDM would be turned ‘‘ON’’ when also eliminate the need for operators to removing the reference to part 74 the miner enters the mine and remain sample multiple shifts in order to obtain approval (Coal Mine Dust Personal operational while traveling to the MMU, sufficient dust mass on the collection Sampler Units), and replacing it with during the entire time period spent filter for quartz analysis. Since the use ‘‘approved sampling device,’’ as defined working in the MMU, and while of a control filter adjusts for differences under revised § 70.2. Respirable dust traveling back to the mine entrance, at that may exist in laboratory conditions sampling under this proposed rule which time the device would be turned on the days of pre- and post-weighing, could also be conducted with sampling ‘‘OFF.’’ Since most non-traditional work it is no longer necessary to pre- and devices that can give a continuous shifts in underground coal mines are post-weigh the filter cassettes in the readout of dust concentrations provided less than 12 hours in length, the PCDM same laboratory. To ensure the precision that the measured concentration can be currently under development is being and accuracy of the pre-weight of filters

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used by the operator and federal mine with § 70.2. If the VPL is not achieved, in those features of the sampling personnel, MSHA will institute a the samples for that shift will be voided program specified in the proposed rule. program to monitor the daily production by MSHA. However, any sample that This will enable them to make sound of filter cassettes weighed to the nearest exceeds either verification limit or the and knowledgeable judgements on the microgram (µg) by the manufacturer, applicable dust standard by any amount conduct of operator sampling under the MSA. The program will conform to MIL- would be used to determine the proposed rule. STD–105D, which defines the criteria equivalent concentration for that While section 103(f) of the Mine Act currently used to monitor the quality of occupation, regardless of production. requires the operator to compensate pre-weighed filters used in the current Also, if the MMU being sampled under representatives of miners who operator bi-monthly sampling program. proposed § 70.215 is authorized to use accompany MSHA personnel Since the control filter will be used to PAPRs under special circumstances (see conducting inspections, it would not adjust the resulting weight gain § 70.212) and those circumstances apply to operator sampling as proposed, obtained on each exposed filter cassette, prevent the operator from achieving the unless conducted on the same shift that the control filter must have the same VPL, the sample(s) for that shift will be MSHA chooses to monitor operator pre-weight date as the filter cassettes to used to determine the equivalent sampling. Therefore, unless be used for sampling on the same shift. concentration for the affected accompanying MSHA personnel, The pre-weight date is noted on the dust occupations. section 103(f) would not authorize data card. Failure to follow these In addition to minimum production ‘‘walkaround pay’’ for time spent by a instructions will be cause for voiding activity, limits must also be set on how representative of miners observing the the sampling results. Only one control much the specified engineering control operator conducting sampling required filter will be required for each MMU per parameters can deviate during sampling by this part. MSHA believes that shift sampled. To prevent exposure to from the quantities specified in the providing the representative of miners the mine environment, the plugs ventilation plan. Failure to meet either with an opportunity to accompany attached to the inlet and outlet side of criterion will undermine miner MSHA personnel monitoring operator the cassette must not be removed. Also, confidence in the ability of the sampling required by this part with no it is important that the control filter be approved plan parameters to effectively loss of pay is consistent with section exposed to the same time, temperature, control respirable dust under the 103(f) of the Mine Act. Under the and handling conditions as the ones that conditions at the MMU. Accordingly, guidance of the Interpretive Bulletin (43 are used for sampling, i.e., carry the paragraph (e) requires each operator to FR 17546, April 25, 1978), walkaround control filter in a shirt or coverall pocket use only the engineering controls and rights arise when: (1) An ‘‘inspection’’ is while underground. While the control other measures specified in the plan. made for the purposes set forth in filter can be carried by any miner Recognizing that engineering parameters section 103(a), and (2) the inspector is assigned to the MMU being sampled, it such as air quantity and velocity and physically present at the mine to would be preferable if that miner water pressure are subject to observe or monitor safety and health performed the job of the DO. Finally, the measurement error and can vary conditions as part of direct safety and control filter cassette must be kept because they cannot be easily controlled health enforcement activity. together with the exposed samples after with absolute precision, proposed MSHA sampling required by this part sampling and treated in the same § 70.201(e) would permit the measured would be unannounced and conducted manner as the exposed filters prior to levels to be up to 115 percent of the to determine if the operator is in full being transmitted to MSHA. For minimum quantities specified in the compliance with both the operating processing purposes, the dust data card plan. conditions and sampling requirements for the control filter must be marked Since miners play an important role of this part, as well as with all other with a large capital ‘‘C’’ for in the implementation and maintenance health and safety standards. ‘‘CONTROL’’ in the middle of the card of the approved plan parameters, MSHA Consequently, the representative of and enter a ‘‘9’’ in the ‘‘Type of Sample’’ recognizes the need for miners to have miners would have the right to box. The remaining items on the dust full confidence in the sampling process accompany the MSHA personnel with data card must be completed in the used to approve and evaluate the no loss of pay for the time during which same manner as under the previous continued adequacy of the plan the representative exercises this right. operator bimonthly sampling program. parameters. Therefore, consistent with Existing paragraph (c) which requires These procedures are identical to the the underlying purposes of the Mine the operator to submit, when requested ones followed by MSHA. Act, proposed paragraph (f) would by the district manager, the date and To ensure that the plan parameters are require the operator to provide affected time when sampling required by this designed to control respirable dust and miners and their representatives with an part will begin would be redesignated as are suitable to the conditions and opportunity to observe any sampling paragraph (g). This requirement enables mining system at the mine as required required by this proposed rule. In MSHA to monitor operator sampling on under § 75.370(a) of this title, the addition, the operator would be a case-by-case basis to verify proposed paragraph (e) prescribes required to give prior notice to miners compliance with both the operating minimum mining activity that must be and their representatives of the dates conditions and sampling requirements ongoing during sampling, as well as the and times when the operator intends to of this part. operating parameters for use of the conduct sampling. If the exposure of The requirement that operators take engineering controls specified in the individual miners is monitored on a corrective action during the time for plan. Therefore, when sampling under daily basis using a PCDM, the operator abatement fixed in a citation for proposed § 70.206, § 70.215 or would be exempt from this requirement violation of §§ 70.100 or 70.101 § 70.220(c), respirable dust samples since all affected miners would already specified in existing paragraph (d) of must be collected on a production shift be aware that they were being § 70.201 would be transferred to during which the amount of material monitored on a continuous basis. To proposed § 70.218(b)(2). The produced by the MMU is at least equal make miner participation more requirement that the operator sample to or exceeds the verification production effective, it is important that miners and each production shift until five valid level (VPL) as determined in accordance their representatives are knowledgeable samples are taken under existing

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paragraph (d) would be removed since examination requirements of paragraphs Section 70.204 Demonstrating the MSHA is proposing to revoke operator (d)(1) through (d)(5) of this section. Adequacy of the Dust Control sampling requirements under existing Instead, the operator would be required Parameters Specified in a Ventilation §§ 70.207 and 70.208, and assume full to follow the examination procedures Plan; Verification Sampling responsibility for all compliance recommended by the manufacturer or Existing § 75.370(a)(1) of this title sampling. prescribed by MSHA and NIOSH for the requires the operator to develop and particular device. Section 70.202 Approved Sampling follow a mine ventilation plan that is Devices; Maintenance and Calibration Section 70.203 Approved Sampling designed to control methane and In an effort to consolidate the Devices; Operation; Air Flowrate respirable dust. It further requires the requirements that address maintenance Proposed § 70.203(a) through (c) plan to be suitable to the conditions and and calibration procedures of approved retains the operation and flowrate mining systems at the mine. sampling devices, MSHA is proposing requirements for approved sampling Accordingly, a properly-designed mine in § 70.202(a) through (e) to retain the devices in existing § 70.205(a) through ventilation plan continues to be the requirements in existing § 70.203(a) and (d), with minor changes. Since MSHA most reliable means for ensuring that (b) and § 70.204(a) through (e), with has defined an approved sampling the work environment in each MMU is minor changes. These standards require device in revised § 70.2 to mean a free of excessive concentrations of the sampling device be maintained as device approved in accordance with respirable dust. approved and calibrated only by a part 74 of this title, proposed paragraph MSHA recognizes that the operator certified person in accordance with (a) excludes reference to part 74. has the legal responsibility for MSHA Informational Report IR 1240 Similarly, for purposes of developing a ventilation plan that is (1996).8 If using a PCDM under simplification, reference to § 70.202 designed to control respirable dust. proposed § 70.220, the device would be (Certified person; sampling) would be Consequently, the operator has the calibrated to the manufacturer’s removed and, replaced by certified obligation to demonstrate that the dust specifications. The process of certifying person as defined in revised § 70.2. control parameters specified in the plan an individual for maintenance and MSHA believes that the two on-shift will effectively control respirable dust calibration would remain unchanged. It examinations of sampling devices under as required by § 75.370(a)(1). Therefore, would continue to require an individual proposed paragraphs (b)(1) and (b)(2), within 12 months after the effective date to successfully complete the applicable which are identical to the examinations of this rule, each operator of an MSHA examination. Scheduling required under existing § 70.205(b) and underground coal mine must have an information for MSHA training courses (c), continue to be an important part of approved ventilation plan in which the and examinations would be available a reasonable and prudent sampling dust control parameters specified for from MSHA District Offices. program. The first examination would each MMU have been verified to be These standards require approved be made by a certified person during the adequate in controlling respirable dust. sampling devices to be calibrated at a second hour after the sampling devices Proposed §§ 70.205 through 70.208 set flowrate of 2.0 liters of air per minute. are placed in operation. This forth the specific steps an operator must They also establish the flowrate and examination would assure that each follow to verify the adequacy of the plan testing and examination requirements sampling device is operating properly parameters. To demonstrate adequacy, for approved sampling devices. Careful and at the proper flowrate. If the proper the operator would be required to examination and testing of sampling flowrate is not maintained, necessary collect valid respirable dust samples in devices would continue to be required adjustments in the flowrate would be accordance with proposed § 70.206 or immediately prior to the start of a shift made at this time by the person certified § 70.220(c) if using a PCDM. Approval during which samples would be to collect samples. The second of the plan parameters for a particular collected for purposes of this proposed examination would be made during the MMU would be granted when these rule. This would include testing the last hour of operation of the sampling samples, called verification samples, battery voltage and examining all devices. If the proper flowrate is not demonstrate at a high level of external components of the sampling maintained, the certified person is confidence, in accordance with the devices to be used. Any necessary required to make a notation on the dust limits specified in Table 70–1, the external maintenance to assure the data card for that sample stating that the adequacy of the plan parameters in sampling devices are clean and in proper flowrate was not maintained. maintaining the equivalent proper working condition should be Because it is unclear where on the dust concentration of respirable dust coal performed at this time by a certified data card such a notation should be mine dust and quartz dust at or below person. Temporary certification of made, proposed paragraph (b) would the verification limits of 2.0 mg/m3 and persons provided under existing require all notations regarding failure to 100 µg/m3, respectively. § 70.203(b) would not be retained under maintain proper flowrate or other events Section 70.205 Verification Sampling; the proposal. occurring during sampling that may If using a PCDM in accordance with impact the validity of the sample to be When Required; Time for Completing § 70.220, the operator under proposed made on the back of the dust data card. Proposed § 70.205 specifies the § 70.202(f) would be exempt from the If using a PCDM under proposed various ways in which the process of § 70.220, the operator would not be verifying the adequacy of the dust 8 On September 3, 1998, MSHA published a required to examine the device during control parameters for a MMU would be proposed rule in the Federal Register (63 FR 47123) the second and last hour of operation as initiated. The operator would trigger the requesting public comment on our intention to update the incorporation-by-reference in title 30 of required under paragraph (b) of this process by submitting a new ventilation the Code of Federal Regulations, Sections 70.204, section. Instead, the operator would be plan under § 75.370. This process would 71.204, and 90.204. The Agency allowed 60 days for required to follow the procedures also be initiated if the district manager public comment and received no comments, no recommended by the manufacturer or requires the operator to amend the plan requests for an extension of the comment period, and no requests for a public hearing. On August 10, prescribed by MSHA and NIOSH to parameters in a previously approved 1999 the final rule was published and became assure that the PCDM is operating ventilation plan after determining, effective on October 12, 1999 (64 FR 43283). properly and at the proper flowrate. based on dust sampling results or other

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evidence, that the dust control an operator an extension of up to 30 be at significant risk of overexposure. parameters in effect are no longer days to complete verification sampling. Therefore, the operator would be suitable to the current conditions at a Before receiving provisional approval, required to sample the environment of: particular MMU. the operator may be required to modify (1) The DO in accordance with proposed Once the dust control parameters for the plan parameters if the district paragraphs (d)(1) through (d)(10), which a MMU have been verified as adequate, manager determines that the particular are identical to existing § 70.207(e)(1) it would not be necessary to reverify the parameters are inadequate or unsuitable through (e)(10); (2) the roof bolter plan parameters as part of the MSHA for the current conditions in the MMU. operator(s) (occupation codes—012, 014 six-month review under § 75.370(g), If provisional approval is not granted, or 046); (3) the longwall jack setters unless the district manager determines the operator may not operate the (occupation code—041); and (4) any these parameters are unsuitable for the affected MMU. other occupation that the district current conditions at the MMU. Under the proposed rule, the manager may designate for sampling However, the operator may be required adequacy of all previously approved after reviewing the operator’s plan to make changes to the parameters based dust control parameters would need to parameters. on (1) results of the MSHA six-month be verified by the operator within 12 Unless otherwise directed by the review, (2) excessive dust months after the final rule becomes district manager, when an operator concentrations measured by either effective. Before submitting these plan samples a longwall MMU, the DO MSHA or operator monitoring samples, parameters to the district manager for sample required by this part would be or (3) a new reduced applicable dust review and approval to commence collected by placing the sampling standard which is less than the highest verification sampling, proposed device on the miner who works nearest respirable coal mine dust concentration paragraph (b) would require the the return air-side of the longwall that was previously used to verify the operator to provide additional working face. Since 1987, this work adequacy of the plan parameters. For information. The additional information location has been assigned the 060 example, if an operator was cited for is described under revised § 75.371(f) of occupation code by MSHA for sampling exceeding the applicable dust standard this proposed rule. The operator will be and tracking purposes in accordance when the approved plan parameters permitted to operate a MMU under the with existing § 70.207(e)(7). Therefore, were being met or exceeded, the district previously approved dust control when sampling the 060 DO, the manager may have cause to question the parameters until the amended plan sampling device would remain at all adequacy of the previously-approved parameters are either provisionally times with the miner working nearest dust control parameters. approved or denied. the return air-side of the longwall face. Also, depending on sampling results To minimize delays in the verification If individual miners rotate out of the DO and production records, if the process, MSHA will develop and issue position during sampling, as is the production exceeds the VPL specified in appropriate compliance guides and common practice at some operations, the plan, the district manager may provide adequate training on the new the sampling device must be transferred require the operator to verify the plan rule prior to its implementation. MSHA to and worn by the new miner rotated parameters at the higher production will also be available to provide into the DO position. For example, if all level. For example, suppose the VPL is guidance to individual mine operators other miners are working upwind of the 10,000 tons and all five concentration once the rule becomes effective. The tailgate-side longwall operator, the measurements taken during MSHA Agency intends to make every effort to miner performing that particular job sampling exceed the applicable dust ensure an orderly and efficient transfer becomes the DO and wears the sampling standard on a shift for which the from the previous plan approval process device since that individual is working production is 12,000 tons. Then, if the to the new process of validating the nearest the return air-side of the production records indicate that the adequacy of dust control parameters for longwall face. However, if during the operator has exceeded the VPL on more each MMU prior to implementation. shift being sampled another miner, such than 33 percent of all production shifts as the face mechanic, travels past the Section 70.206 Verification Sampling; during the previous six months, that tailgate-side longwall operator toward Procedures for Sampling evidence would demonstrate that the the return air-side, the face mechanic VPL specified in the plan is no longer This proposed section establishes the would then become the DO and must valid. The district manager would then sampling procedures that each operator wear the sampling device for the period require the operator to verify the plan would follow when conducting of time that individual works nearest parameters under current operating verification sampling. Described are the the return air-side of the longwall face. conditions. specific occupations and areas to be When the face mechanic returns Under the proposed rule, the operator monitored in a MMU, and the operation upwind of the longwall operator, the would be required to verify the and placement of each sampling device sampling device must then be adequacy of the dust control parameters during sampling. The specific operating transferred back to the longwall for each MMU within 45 calendar days conditions under which these operator, as that individual will now be after obtaining provisional approval occupations and areas would be the miner working nearest the return from the district manager. This should sampled are discussed under § 70.201. air-side. be ample time for an operator to These will be covered again for the This is compatible to sampling any demonstrate the adequacy of the plan benefit of the reader. other DO, whether it is the 036 DO parameters, even when starting up a Proposed paragraph (a) would require (continuous miner operator) or the 044 new MMU, such as a longwall panel. the operator to sample specific DO (tailgate-side longwall operator). Should an operator experience difficulty occupations assigned to a MMU. These The sampling device must remain at all in establishing the desired VPL or occupations were selected because, times in the environment of the DO and encounter other unexpected based on MSHA experience over the not with the individual miner, breakdowns or unforseen circumstances past 20 years, miners required to work regardless of how many miners work in affecting the operational status of a in those occupations are likely to be that location during the shift. Sampling MMU after obtaining provisional exposed to the greatest respirable dust the DO in this manner preserves the approval, the district manager may grant concentration and, consequently, would long-standing high-risk occupation

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sampling concept which the Agency MSHA has designated as the 061 DO. Since the objective is to verify the adopted in 1970. Placing the sampling device at this adequacy of the dust control parameters Under these procedures the sampling location is comparable to placing the in effect at a MMU, proposed paragraph device must remain in the environment sampling device on the continuous (b) would require sampling devices to of the miner who works nearest the mining machine within 36 inches inby be turned ‘‘ON’’ when the production return air-side of the longwall working the normal work position of the crew arrives at the MMU to be sampled, face. However, in certain circumstances, machine operator. It should be noted, regardless if any actual mining is taking MSHA may not require transfer of the however, that since dust concentrations place, and not at the portal as required sampling device if the amount of time at this location are typically the highest, in existing § 70.201(b) for bimonthly a particular miner spends inby or no longwall MMUs are currently sampling. The operator would continue downwind of the DO is known to be submitting bimonthly samples taken at to examine each sampling device at infrequent and of short duration, limited the 061 DO. least twice during the sampling shift in to 20 minutes or less. However, transfer The proposed approach, which accordance with proposed § 70.203(b)(1) of the sampling device is required if the involves sampling the ‘‘high risk and (2). Each sampling device would same miner travels inby the DO occupation,’’ currently referred to as the remain operational during the entire routinely during the shift. DO, is not new and has been in use shift that the production crew remains There are other ways to reduce the since inception of the mandated in the MMU, regardless of the number number of times that a sampling device sampling program in 1970. This of hours worked. The sampling devices needs to be transferred from one miner sampling approach is designed to would be turned ‘‘OFF’’ at the end of to another during a shift. This depends monitor the mine atmosphere with the the shift as the production crew, on the particular mining practices of the greatest concentration of respirable dust assigned to the occupation(s) being operator. By fully utilizing the exposure, in the areas where miners are sampled, exits the MMU to travel back operational capabilities designed into working during their shift, to prevent to the mine portal. currently-employed longwall equipment excess exposure of miners to respirable Each operator would be required to or altering the mining cycle, the need coal mine dust. The goal has never been use one control filter for each shift of for miners to work routinely inby the to measure the exposure of an sampling as required by proposed shearer can and should be minimized, individual miner for the duration of a § 70.201(d). As explained earlier, the thereby reducing the number of shift, but rather to determine if the mine control filter will be used to adjust the necessary pump transfers, and the atmosphere in the active workings is weight gain obtained on each exposed potential for miners to be overexposed free of excessive concentrations of filter by subtracting any change in the to respirable dust. Another approach respirable dust in order to protect each weight of the control filter from the has been used successfully at longwall miner required to work in that change in weight of each exposed filter. MMUs employing a type of water-spray environment. Its use in accordance with § 70.201(d) system called ‘‘shearer-clearer.’’ This Based on the various dust generating will enhance the decision-making involves limiting the movement of sources and the manner in which the process involving the approval or denial miners to a certain region or distance face is ventilated, the return air-side of of the dust control parameters by the inby of the shearer. In some instances a longwall face is the area on a longwall district manager. this distance can reach 40 feet inby if MMU with the greatest concentration of To qualify as a valid sample for samples indicate dust levels are similar respirable dust. Accordingly, since verification purposes, the amount of to the levels in the environment of the miners are required to work in this area, material produced by the MMU during tailgate-side shearer operator operators are required to maintain the the shift being sampled must equal or (Occupation code 044). mine atmosphere in this area or location exceed the VPL as required by proposed If a properly designed shearer-clearer in compliance with the applicable dust § 70.201(e). If the VPL is not achieved, system is installed and maintained, it is standard on each shift. By doing so, it the sample(s) will be voided by MSHA. very effective in confining the shearer- can be concluded that other miners in However, any sample that exceeds generated dust to the face for some less risky occupations are protected either verification limit or the distance downwind of the shearer and from excessive dust concentrations. applicable dust standard by any amount prevents migration to the walkway While these measurements will not would be used to determine the where miners are located. Therefore, show a particular miner’s dust equivalent concentration for that miners who are required to spend time exposure, the results will indicate if the occupation, regardless of production. inby the shearer can be protected from air that miners are breathing is in Proposed § 70.201(e) also requires the exposure to excessive dust levels if their compliance with the applicable dust operator to utilize only the dust control work is limited to this particular area. standard. The objective of the proposed parameters that were provisionally This area, however, is normally sampling scheme is to control the approved by the district manager. established through sampling on a concentration of respirable dust in the Recognizing that engineering parameters mine-by-mine basis. The area can vary workplace. The method of sampling the such as air quantity and velocity and depending on the quantities and DO on a longwall MMU was determined water pressure are subject to velocities of air delivered to the to be reasonable and consistent with the measurement error and cannot easily be longwall face, type of cut sequence, Mine Act in American Mining Congress controlled with absolute precision, water flow rates and spray pressures, v. Marshall, 671 Fed 12151 (10th Cir. MSHA would allow the measured levels and tonnage produced. 1982). MSHA believes that the method to be up to 115% of the quantities If any of these approaches are not of sampling being proposed will specified in the plan. suitable or if the miner working furthest effectively serve the health protection If a measured level exceeds the downwind refuses to wear the sampling goal of achieving and maintaining good corresponding quantity specified in the device for any reason, the proposed rule air quality in each MMU. Therefore, the plan by more than 15 percent, the provides for the placement of the long-standing practice of sampling the operator would have the option to either sampling device in a specified location DO in each longwall MMU or any other (1) adjust the engineering parameter(s) on the return side within 48 inches of DO would be continued under the to what is specified in the plan before the corner of the longwall face, which proposed rule. beginning verification sampling or (2)

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make no adjustment to the parameter(s) percent probability that a randomly TABLE 70–1.—CRITICAL VALUES FOR prior to verification sampling. Under the selected production shift would not DETERMINING COMPLIANCE WITH second option, final approval of the meet the VPL. Consequently, if the VERIFICATION LIMITS. plan parameters would be contingent on operator made no special effort to [The result of each verification sample col- the operator incorporating in the plan achieve the desired production, there lected must be less than or equal to the ap- the maximum quantities of parameters would be a 13-percent chance the plicable critical values.] measured during verification sampling. operator would need to sample more If verification samples were collected on than five shifts and a 1.7-percent chance Number of Critical a shift when a plan parameter exceeded the operator would have to sample more shifts meeting Critical value value for 115 percent of the quantity specified in 9 criteria for for coal mine quartz dust than 10 shifts. On the other hand, again verification dust (mg/m3) (µg/m3) the plan, then (assuming none of the assuming no special production effort, sampling verification samples exceeded the there would be a 98-percent chance the critical values) that parameter quantity, operator would need 10 or fewer shifts 1 ...... 1.71 87 as measured, would be incorporated and a 70-percent chance that the 2 ...... 1.85 93 into the plan parameters ultimately operator would need to sample three or 3 ...... 1.93 97 approved by the district manager. fewer shifts.10 This assumes that the 4 or more ...... 2.0 100 If an operator chooses to sample sample results for each shift do not The proposed criteria would allow the multiple shifts, they would not have to exceed the critical value corresponding district manager to base approvals on a be consecutive shifts as under the to the number of shifts sampled. If the reasonably small number of sampled previous bimonthly sampling program. operator should make a concerted effort shifts, while maintaining a high level of The operator would be required to to achieve the VPL on the sampled confidence that approved dust control submit for processing all samples shifts and meet the other criteria, then parameters adequately prevent collected by the operator, regardless of sampling of fewer shifts would be excessive dust concentrations on the operating conditions under which needed to verify the adequacy of the individual shifts. verification sampling was conducted. dust control parameters. The number of shifts that the operator The following two examples illustrate would need to sample to verify the Section 70.207 Approval of Dust how the district manager would apply adequacy of the plan parameters Control Parameters by District Manager; the proposed criteria or ‘‘critical values’’ depends on two factors: First, the actual Revocation of Approval to determine if the operator’s plan operating conditions in effect during the parameters for a MMU should be This proposed section establishes the shift being sampled; and, second, the approved. criteria or ‘‘critical values’’ that the individual sample results. As discussed district manager would use to determine Example 1: Suppose valid verification earlier, for a respirable dust sample to samples were taken on two shifts. According whether the operator’s dust control be valid for verification purposes, the to Table 70–1, the district manager would parameters should be approved or amount of material produced by the approve the operator’s dust control denied. These critical values, which MMU must equal or exceed the VPL, parameters if all coal mine dust and quartz differ according to the number of shifts and the dust control parameters must be measurements obtained on the two shifts sampled by the operator, are listed in were less than 1.85 mg/m3 and 93 µg/m3, at levels not exceeding 115 percent of respectively. On the other hand, if one roof the quantities specified in the plan. Table 70–1. Appendix A explains how the critical values were derived. When bolter sample indicated a quartz Therefore, the number of shifts depends µ 3 verification sample results do not concentration of 95 g/m , then the district largely on how quickly and consistently manager would not approve the operator’s the operator would be able to achieve exceed the applicable critical values, the plan parameters based on these two shifts these operating conditions. The operator district manager can be confident that alone. Instead, at least one additional shift of may need to sample several shifts before the dust control parameters in use sampling would be needed. Valid verification the production level on any single shift during verification sampling samples from only one additional shift would qualifies for verification purposes. The successfully prevented overexposures at be sufficient if none of the coal mine dust the sampled locations. measurements on that shift exceeded 1.93 operator could verify the adequacy of 3 The district manager would approve mg/m , and none of the quartz measurements the plan parameters based on this single exceeded 97 µg/m3. shift—but only if all sample results are the operator’s plan parameters when the Example 2: Suppose valid verification at or below the critical values listed in amount of material produced is at or samples were taken on four or more shifts. Table 70–1 that correspond to the above the VPL, the parameters and other The district manager would approve the number of shifts sampled. This would measures in place during verification operator’s plan parameters as proposed if no demonstrate the adequacy of the plan sampling do not exceed 115% of the measurement taken over those four or more parameters at a high level of confidence. quantities specified in the plan, and no shifts exceeded 2.0 mg/m3 of coal mine dust µ 3 If any of the sample results exceed the equivalent concentration measurement or 100 g/m of quartz dust. appropriate critical value, then the exceeds the applicable critical values The district manager may revoke approval corresponding to the number of shifts of the dust control provisions if either MSHA operator would need to collect samples or operator samples collected in verification samples taken on one to sampled. accordance with proposed § 70.215 indicate three additional shifts, depending on that miners are being overexposed to the concentrations measured on those 9 Assuming no special production effort, the respirable coal mine dust. shifts. Since these additional shifts probability of needing more than n shifts to be would also need to meet the production sampled before meeting the minimum production Section 70.208 Follow-up Action level required to verify the plan: P(X>n)= (.667)n; criteria, and use only the dust control When Either Verification Limit Is for example, the probability of more than 10 shifts Exceeded parameters specified in the plan, some being needed, P(X>) 10) = (.667)10 = 1.7 percent. operators would need to sample a total 10 Assuming no special production effort, the This proposed section would require of more than four shifts. probability of needing n or fewer shifts to be the operator to take certain actions sampled before meeting the minimum production when a verification sample exceeds Assuming that the operator makes no level required to verify a plan: P(X≤n)=1-P(X>n); for special effort to meet the VPL during example, the probability of 10 or fewer shifts being either the respirable coal mine dust or verification sampling, there is a 67- needed, (1-(.667)10) = 98 percent. quartz verification limit. The operator

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would be required to stop verification and submit this information to the be directed to resume verification sampling, provide approved respiratory district manager within five days of sampling. However, if the plan equipment, identify the cause of the receiving MSHA notification that one or parameters are found to be inadequate high dust concentration, and take both of the verification limits were for the proposed operating conditions corrective action to prevent miners from exceeded. The documentation must and the operator was notified to upgrade being overexposed on subsequent shifts. describe the specific corrective the parameters, the operator would be When the operator receives measures taken and the manner that instructed to start the verification notification from MSHA that a these measures would be used to process over again. prevent overexposures on subsequent verification sample exceeded either Section 70.209 Use of Supplementary shifts, including the proposed changes verification limit, the operator must stop Control Measures; Types and in dust control parameters. The operator sampling and immediately make Conditions for Use; Request for would be encouraged to seek technical approved respiratory equipment Approval available to affected miners in assistance from the district manager to accordance with § 70.300. The use of help in determining what additional This proposed section would require respiratory equipment should be measures are reasonably likely to help the operator to take certain actions encouraged until the operator in meeting the verification limits. when verification samples exceed either determines the cause of the The district manager would notify the verification limit after the operator overexposure and takes corrective operator and the representative of implemented all feasible engineering or measures. If deficiencies are identified miners if the proposed revisions to the environmental controls. It would permit in the operator’s dust control program, plan are provisionally approved and an operator to use approved powered appropriate corrections must be made whether the operator should either air-purifying respirators (PAPRs), under proposed paragraph (b) to lower resume or initiate verification sampling administrative controls, or a dust concentrations in the work in accordance with § 70.206. The combination of both, after MSHA has environment of the affected occupation district manager may require the determined that further reduction of or location to a level no greater than the operator to make additional changes to dust levels cannot be reasonably applicable verification limits. the plan parameters based on the results achieved using accepted engineering MSHA recognizes that, given the of verification sampling before the controls. The decision-making process rigorous nature of the verification test operator begins the verification for determining whether feasible conditions, such as requiring higher sampling process over again. If no engineering controls should be augmented by supplementary controls production levels to be maintained and additional changes are required by the (personal protective equipment and/or the application of stringent approval district manager, the operator would be work practice controls) to maintain the criteria, some failures will occur. If instructed to resume the verification personal work environment of the some attempts prove to be less than process by continuing the sampling affected miners at a safe exposure level successful, it would not necessarily be from the point at which it was stopped. The district manager would determine will consider the various factors due to the lack of good faith effort on whether the operator should either involved in each specific situation. the part of the operator, but could be resume verification sampling or start Some of the factors to be taken into due to the inability to predict accurately plan verification anew on a case-by-case account include: (1) The severity and the effectiveness of particular dust basis. MSHA would not necessarily magnitude of the exposure; (2) number control parameters under the proposed require the operator to revise the plan of affected miners, their job location and test conditions. For example, assume parameters nor require the verification assignment; (3) types and location of the VPL proposed is significantly higher process to start over again because a dust-generation sources; (4) range of than that which has been recorded valid sample exceeded the verification effectiveness and reliability of the during previous sampling inspections. limit by a small amount, such as 0.05 implemented engineering controls; (5) In this instance, it would be difficult to mg/m3, unless the district manager no availability, suitability, reliability, and predict in advance that the proposed longer felt confident in the ability of the cost of other feasible engineering dust control parameters would be plan parameters to effectively control controls; (6) operational conditions such effective unless the VPL was more respirable dust under the proposed as the method of mining, mining height, representative of the previous operating conditions. The decision to etc.; (7) compliance history; (8) production levels. Therefore, MSHA is resume sampling to verify the adequacy effectiveness and reliability of proposing not to cite the operator when of the current plan parameters or start supplementary control measures; (9) samples exceed the verification limits. over again with totally revised plan concerns of individual miners and their However, an operator would be cited parameters would be based on the representatives; and (10) ability to under proposed paragraph (b) of this information the operator provides measure and ensure the adequacy of section for failure to take action regarding the cause of any excessive exposure control. required to address the cause of the dust concentration measurements and Section 202(h) of the Mine Act does excessive dust levels once notified of the steps taken to prevent similar not prohibit the use of PAPRs and the results of verification sampling. This occurrences in the future. For example, administrative controls under the is consistent with the Dust Advisory suppose the concentration specific circumstances set forth in the Committee’s recommendation that: measurements are excessive due to a proposed rule. These measures would MSHA should not issue citations for deviation in the operator’s established be used only as supplementary controls violation of the applicable dust standard operating procedures. It should be and not as a substitute or replacement based on operator verification sampling. possible for the operator to prevent this for engineering control measures in the Operator inaction to protect miners where from occurring in the future without active workings. The use of these dust values are in excess of the PEL should requiring changes in the dust control supplementary control measures under be citable by MSHA.’’ parameters. If the district manager finds the conditions of use set forth in the The operator would also be required this to be the case, and concurs with the proposed rule will enhance the level of under proposed paragraph (c) to operator’s proposed action to prevent health protection for miners by document the corrective actions taken similar occurrences, the operator would preventing overexposures on all shifts.

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The combination of engineering and effective, which increases the miner’s notified in writing of the specific supplementary controls will provide risk of being overexposed on any given reasons for disapproval. If approval is reliable and effective exposure control shift. Given the state of longwall dust granted, the operator would be when used in accordance with the control technology, the engineering permitted to use either PAPRs approved approved plan provisions. controls currently available may not be by NIOSH under 42 CFR 84 and by Consistent with the Mine Act and the effective in achieving and maintaining MSHA under part 18 of this title, Dust Advisory Committee’s continuous compliance at certain administrative controls, or a recommendation, engineering controls locations along the longwall face such combination of both, as supplementary continue to be recognized as the as downwind of the longwall operator controls to protect those miners primary means to control exposure to (occupation code—044) at some high- assigned to occupations that continue to respirable dust under this proposed production longwall MMUs. If the exceed either verification limit, rule. Therefore, if verification samples operator believes that all feasible provided the operator meets the for a MMU continue to exceed either engineering controls have been conditions specified in §§ 70.210 and verification limit after implementing all installed, maintained, and operated as 70.211 or §§ 70.213 and 70.214 of this feasible engineering controls, including specified in the ventilation plan, the part. such measures as required by the operator may submit a written request to If the affected occupation involves the district manager, the operator must MSHA’s Administrator for Coal Mine 060 occupation, the operator would also continue to use these control measures Safety and Health, asking for be informed that the DO would be to reduce the concentration of respirable authorization to augment the changed from the 060 to the 044 dust as low as possible. implemented engineering controls with occupation, or another occupation MSHA believes that it is feasible to supplementary controls to maintain the designated by the district manager control respirable dust to an acceptable personal work environment of the depending on how the particular level as required by § 75.370(a)(1) at affected miners at a safe exposure level longwall MMU is ventilated. While it most non-longwall operations using and to achieve compliance with the may be difficult to lower the dust levels available engineering controls. verification limits and §§ 70.100 and to the applicable dust standard in the Currently, over 90 percent of the 70.101. If such a request is made, a copy environment of some miners working on approximately 720 continuous miner must be provided to the representative the longwall face under certain operations employ extended cut of miners and posted on the mine operating conditions, MSHA believes techniques and, therefore, are being bulletin board in accordance with that, using available engineering operated remotely. As a result, the proposed § 70.217(b)(3) at the time it is controls, an acceptable work continuous miner operator, the submitted to MSHA. environment can be provided for the occupation normally identified as the When the Administrator receives such tailgate-side longwall operator DO, is no longer required to work near a request, guidance would be (Occupation code—044) and other the face area where material is being immediately solicited from a panel of miners on a continuing basis. Therefore, extracted and respirable dust generated. experts specifically established to unless demonstrated otherwise through Likewise, roof bolting machines, a major address such matters. Members of this verification sampling, the operator generator of respirable quartz dust on panel would have extensive knowledge would be required to maintain the continuous miner MMUs, are now in respirable dust control and would environment of the new 044 DO at or required to be equipped with suitable represent the following organizations below the verification limits or below drill dust controls. Under § 72.630 of within MSHA: Technical Support, the applicable dust standard using this title, drill dust must be controlled Division of Health, the MSHA District engineering controls. This should have by either permissible dust collectors, by having jurisdiction over the mine water, water with a wetting agent, by making the request, and another MSHA a significant effect on the quality of the ventilation, or by any other method District. In some cases, MSHA may mine atmosphere downwind of the 044 approved by MSHA. However, the solicit advice from NIOSH, an Agency DO where miners, wearing PAPRs or Agency also recognizes that some non- with significant experience in dust under administrative controls, are longwall MMUs continue to have control. As part of their deliberations required to work. difficulty maintaining consistent and on a case-by-case basis, the expert Under the proposed rule, the operator compliance with reduced standards panel may visit the mine to observe would be permitted to continue to use even at production levels that are various controls in operation. This supplementary controls to reduce dust significantly lower than the proposed panel will also consider all comments exposure of individual miners assigned VPL because of the high quartz content MSHA receives from the representative to specific occupations until such time of the adjacent roof rock, which is of miners, as well as individual miners, when other feasible engineering controls drilled to install roof bolts, or of the coal and provide copies of these comments become available and are implemented seam being mined. to the operator upon request. Any or until the district manager revokes the With regard to mining operations recommendations reached by this panel operator’s approval to use employing the longwall mining method, would be based on the (1) review of all supplementary controls for failure to MSHA recognizes that technological the facts gathered, (2) consideration of comply with the requirements of advances have boosted longwall the various factors involved in each proposed § 70.211(b) or § 70.214(b). production to record levels. According specific situation as outlined above, (3) As discussed above, MSHA will to MSHA data, the average production their combined practical and technical continue to require that all feasible reported by operators during bimonthly experience in dust control, and (4) engineering controls be installed. While sampling of longwall MMUs has sound engineering judgement. the proposed rule provides for increased over 6 fold between 1980 and Recognizing the urgency of such a expanded use of supplementary 2002, from 890 to 5500 tons/shift. request, the Administrator would either controls, such control measures should Unfortunately, as discussed in section approve or deny the operator’s request only be used as an interim method of III.D. of the preamble, dust control within 30 calendar days or as soon as protection since their effectiveness technology has not kept pace, rendering practical after receiving the request. If remains secondary to that of engineering available, acceptable controls less approval is denied, the operator will be controls.

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Section 70.210 Through 70.212 where PAPRs must be worn. Since the To account for the expected presence of excessive dust workplace level of respiratory Use of Powered Air-Purifying concentrations is not readily protection provided the wearer of the Respirators (PAPRs) discernible, MSHA believes that the use PAPR, the equivalent concentration These sections would establish the of warning signs is necessary to protect measurement must be adjusted further requirements for using PAPRs as a miners. The posting of warning signs is in accordance with § 70.2. This requires supplementary control to maintain the an appropriate vehicle to inform or the equivalent concentration to be personal work environment of the remind miners, regardless of their divided by the protection factor (PF) affected miners at a safe exposure level familiarity with the workplace specified in the PAPR protection when MSHA has determined that environment, that they are entering a program for the particular mechanized further reduction in respirable dust high dust area where the use of PAPRs mining unit (MMU). The PF represents concentrations cannot be achieved using is mandatory. The Agency recognizes the minimum reduction in dust all feasible engineering or that § 75.370(e) requires that operators concentration that a respirator would be environmental controls or under special instruct persons affected by a revision to expected to provide. In the absence of circumstances. the ventilation plan prior to a direct measure of the dust Section 70.210 Powered Air-Purifying implementation. Section 75.370(f)(3) concentration inside the PAPR (in the Respirators (PAPRs); Requirements for also requires approved revisions to be miner’s personal work environment) Approval posted on the mine bulletin board for while under the conditions of the the period that the plan is in effect. workplace, the adjusted equivalent If the operator chooses to use PAPRs MSHA is soliciting comments on concentration represents a surrogate as a supplementary control measure, the whether it should require the posting of measure of the respirable dust operator must submit a revision to the warning signs when PAPRs must be concentration inside the PAPR facepiece ventilation plan to the district manager worn, or should it be optional and left to which the wearer is exposed. Since within five days of receipt of MSHA’s to the discretion of the operator. the PFs assigned to MMUs under this written approval in accordance with Proposed paragraph (b) requires the proposed rule incorporate a margin of proposed § 70.209(b). The proposed operator to verify, in accordance with safety, the resulting equivalent revision would specify the feasible proposed § 70.206(b) through (e), the concentration measurement represents a engineering controls that are capable of adequacy of the revised plan conservative estimate of the dust (1) reducing the concentration of parameters, incorporating the use of concentration in the miner’s breathing respirable dust as low as achievable in PAPRs, within 30 calendar days of zone. every occupational environment where obtaining provisional approval from the For example, assume that a MMU, a PAPR is required to be worn, and (2) district manager. Accordingly, the which was assigned a PF = 3, was maintaining other occupational operator would be required to collect sampled one shift and the concentration environments in the MMU at or below verification samples in the environment measurement for the sampled the verification limits. The proposed of (1) the occupation(s) where PAPRs occupation under a PAPR protection revision must reflect the engineering must be worn by miners assigned to program is 3.54 mg/m3 for respirable controls that were in use at the time that work in those job positions, (2) the DO, coal mine dust and 174 µg/m3 for the determination was made by MSHA and/or (3) other occupation(s) that may respirable quartz dust. Under the to permit the use of supplementary be designated by the district manager. definition of ‘‘equivalent controls. concentration,’’ these measurements are Section 70.211 Powered Air-Purifying In addition to specifying all feasible divided by 3, which yields an Respirators (PAPRs); Approval and engineering controls to be used, equivalent concentration of 1.18 mg/m3 Conditions for Continued Use; proposed paragraph (a)(2) would require [3.54 mg/m3/3] for respirable coal mine Revocation of Approval the operator to develop a written PAPR dust and 58 µg/m3 [174 µg/m3/3] for protection program which meets the This proposed section establishes the respirable quartz dust to which the requirements of § 72.710 and criteria that the district manager would miner assigned to that occupation is incorporates the following information: use to determine whether the operator’s exposed. If no other valid equivalent (1) The protection factor as determined proposed plan revision incorporating concentration measurement obtained on in accordance with proposed § 70.2 that the use of PAPRs should be approved. one shift exceeds 1.71 mg/m3 or 87 µg/ would be assigned to the affected MMU; As previously discussed under m3 according to Table 70–1, the district and (2) the specific occupation(s), work proposed § 70.207, approval of the manager would approve the revised locations or tasks where PAPRs must be proposed revision would depend on the plan incorporating the use of PAPRs. worn by the affected miners. A model results of verification sampling and the MSHA believes that this strategy PAPR protection program to guide the operating conditions in effect for each provides far more health protection to operator in developing a mine-specific sample. miners than is available under current program that complies with the The district manager would approve regulations, which only requires requirements of this section is described the operator’s revised plan when: (1) operators to make available approved in Appendix B. The district manager The amount of material produced is at respiratory equipment to miners when may require the operator to modify the or above the VPL, the parameters and exposed to excessive dust PAPR protection program before other measures in place during concentrations. There is no requirement granting provisional approval of the verification sampling do not exceed that miners actually wear the respirator proposed plan revision. 115% of the quantities specified in the when issued. Under the proposed rule, Also, consistent with the NIOSH plan, and no equivalent concentration not only must PAPRs be worn at all Criteria Document and section 101(a)(7) measurement exceeds the critical values times but must also conform to specific of the Mine Act, proposed paragraph listed in Table 70–1 that correspond to requirements consistent with an (a)(3) would require the operator to post the number of shifts sampled; and (2) acceptable respiratory protection warning signs with the statement the revision incorporates the dust program. ‘‘RESPIRATORY PROTECTION control parameters used during Proposed paragraph (b) establishes the REQUIRED IN THIS AREA’’ in locations verification sampling. requirements for the continued use of

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PAPRs as a supplementary control. To Section 70.212 Powered Air-Purifying the operator must show that the continue to use PAPRs and operate Respirators (PAPRs); Conditions for Use particular condition or situation is under the same conditions that were in under Special Circumstances atypical, occurs only occasionally, and effect during verification sampling, the Section 70.212 sets forth the special is beyond the control of the operator. operator would be required to comply circumstances under which an operator Increased production levels which with the approved revised plan would be permitted to use, on an exceed the VPL and any other situations parameters on each production shift, in intermittent basis, PAPRs to protect which are more routine and therefore particular, the provisions of the PAPR individual miners from excessive dust under the operator’s control would not protection plan. MSHA believes that the concentrations and for compliance be characterized as unusual conditions. effectiveness of a PAPR is dependent purposes. Such use is only permitted However, because of the difficulty in maintaining proper ventilation along a upon proper training and continued after the plan parameters have been longwall face, during start-up, MSHA verified without the use of maintenance, which are critical will consider and encourage the use of supplementary controls and additional elements of an acceptable PAPR PAPRs at longwall MMUs until the first remedial actions will not be practical or protection program. Necessary gob fall. The types of evidence MSHA feasible because of the intermittent maintenance includes examining the would consider when the unusual nature and duration of a special PAPR for defects prior to use, charging condition encountered involves cutting condition. the batteries properly, and appropriate rock occasionally, would include Because of the dynamic nature of replacement of parts including, but not information on quartz levels, the mining, it is not uncommon for a MMU limited to, the filter elements, visors, duration and frequency of reduced to occasionally encounter operating batteries, blowers, and face seals. standards, and/or on the reject rate for conditions which directly impact the a particular MMU. In addition, the operator would be ability of the previously verified plan required to ensure that no occupation MSHA anticipates questions regarding parameters to effectively control what constitutes special circumstances where PAPRs must be worn by the respirable dust. This is especially true under this proposed section. It is not miners required to work in those when the particular condition possible or appropriate to set forth all particular job positions, the DO and encountered varies from the operating circumstances which might be covered other occupations in the affected MMU, conditions under which the adequacy of by this proposed rule. Each request will are exposed to an equivalent the plan parameters was originally be considered by the district manager on concentration of respirable coal mine demonstrated. It is not because an a case-by-case basis. The district dust that exceeds the applicable dust operator may have failed to adequately manager will rely on past in-mine standard. take such conditions into account when experience and the information designing the plan parameters, but Finally, since the use of PAPRs as a provided by the operator in determining because the proposed verification supplementary control is not intended whether the special circumstances process requires the adequacy of the to be permanent and their use is being under which the applicant is seeking plan parameters to be demonstrated permitted until feasible engineering authority to use PAPRs, occurs only under typical operating conditions. intermittently and is the best way to controls become available, proposed For example, encountering a significant paragraph (b)(3) would require the protect the affected miners during such rock band in the coal seam containing periods. The Agency specifically solicits operator to continue to seek and a high percentage of quartz would be comments on these issues, especially, implement additional improvements considered a unusual circumstance with regard to what other special when they become available. To ensure since its occurrence is not routine. circumstances in mining may conformance with these requirements, While this may have occurred in the necessitate the immediate use of PAPRs. MSHA will review the operator’s past and may occur again, the operator Under proposed paragraph (a), an approved plan parameters, including cannot predict with certainty when this operator can file a written request the operator’s compliance history, every condition might reoccur. Because of the seeking MSHA approval to use PAPRs 6 months to determine if the operator is unpredictable nature of such an under special circumstances: (1) When using all feasible engineering controls occurrence, it may not be practical to submitting a ventilation plan under and if the plan parameters continue to factor this into the design of the plan § 75.370 of this title, (2) when required be suitable to the current operating parameters. to verify a previously approved conditions. If MSHA determines that While the Mine Act and ventilation plan that was revised in other acceptable controls have become implementing regulations intend for the accordance with § 75.370(f), or (3) after available which would be suitable to the working environment to be free of the district manager approves the plan particular MMU, MSHA would notify excessive dust at all times, MSHA parameters based on the results of the operator and the representative of recognizes that it may not be practical operator verification samples. To the miners of its findings. or feasible to implement additional extent possible, the operator must engineering controls whenever these submit a written request prior to MSHA approval to use PAPRs as a unusual conditions occur, especially encountering special circumstances to supplementary control may be revoked when they occur intermittently for a assure prompt review, and revision to if the operator failed to meet the brief period of time. Even if the operator the ventilation plan. A copy of the requirements of proposed paragraphs makes a concerted effort to implement request must be provided to the (b)(1), (2) and (3) of this section. If the additional engineering controls, it may representative of miners at the time of operator’s plan provisions are revoked, require an extended period of time to submittal and posted on the mine the operator would be required to complete and verify the effectiveness of bulletin board to alert the miners submit a revision to the plan parameters the adjustments, during which time working in the affected MMU. The for the affected MMU that would some miners may not be adequately district manager will consider all include a VPL at which compliance protected from excessive dust. comments and, if requested, provide with the applicable dust standard would Before MSHA will grant authorization copies of these comments to the be achieved. to use PAPRs for compliance purposes, operator.

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In addition to showing that the the Mine Act and is in the best interest Section 70.214 Administrative particular circumstances necessitating for miner health. Controls; Approval and Conditions for use of PAPRs occur occasionally and are Continued Use; Revocation of Approval Section 70.213 through 70.214 beyond the control of the operator, This proposed section establishes the proposed paragraph (b) requires the Use of Administrative Controls criteria that the district manager would operator to revise the previously These sections would establish the use to determine whether to approve the approved plan provisions to incorporate requirements for using administrative operator’s proposed revision to the plan the provisions proposed in controls as a supplementary control to parameters incorporating the use of § 70.210(a)(1), (2) and (3). maintain the personal work administrative controls as a Once approval is granted by the environment of the affected miners at a supplementary control. As previously district manager, proposed paragraph safe exposure level when MSHA has discussed under proposed § 70.207, (c)(1) through (3) sets out the determined that further reduction in approval of the proposed revisions requirements for the use of PAPRs. The respirable dust concentrations cannot be would depend on the results of operator will be required to notify, in achieved using all feasible engineering verification sampling and the operating writing or by electronic means, the or environmental controls. conditions in effect during the time each district manager and the representative sample is collected. The district Section 70.213 Administrative of miners within 24 hours of manager would approve the revisions if Controls; Requirements for Approval determining that current operating (1) no valid equivalent concentration conditions necessitate use of PAPRs. If the operator chooses to use measurement exceeds the critical values This would enable MSHA to follow-up administrative controls as a listed in Table 70–1 that correspond to with an in-mine visit to verify the supplementary control measure, this the number of shifts sampled, and (2) operating conditions under which proposed section would require the the revision incorporates the dust PAPRs are being used and whether the operator to submit a revision to the plan control parameters and administrative operator is in full compliance with the parameters to the district manager controls that were in effect during letter of approval and with the within five days of receipt of MSHA’s verification sampling. For the district provisions of proposed § 70.211(b)(1) written approval in accordance with manager to approve the revised plan and (2). It is the responsibility of mine proposed § 70.209(b). The proposed parameters for a MMU based on only management to ensure that PAPRs are revision would specify the engineering one shift of sampling, no valid worn for all required periods and to see controls that are capable of maintaining concentration measurement can exceed that the conditions stipulated in the the environment of any occupation 1.71 mg/m3 for respirable coal mine plan, which are necessary to protect under administrative controls and the dust or 87 µg/m3 for respirable quartz. miner health, are followed. DO or another occupation designated by Proposed paragraph (b) establishes the When PAPRs are used during MSHA the district manager at or below the requirements for the continued use of compliance sampling, the determination verification limits. administrative controls as a of compliance with the applicable dust In addition to specifying all feasible supplementary control. To continue to standard will be made in accordance engineering controls to be used, use administrative controls and operate with proposed § 70.218(a). For proposed paragraph (a)(2) would require under the same conditions that were in occupations under a PAPR protection the operator to include a detailed effect during verification sampling, the program, compliance would be assumed description of each specific operator would be required to comply if the equivalent concentration administrative control to be with the approved revised plan on each measurement, as determined in implemented. Because the effectiveness production shift, and particularly with accordance with § 70.2 and as discussed of administrative controls is based on the prescribed administrative controls. under § 70.211, is less than the citation adherence to strict time periods, work Since miners must actively comply for threshold value (CTV) listed in Table schedules, and or other administrative administrative controls to be effective in 70–2 that corresponds to the applicable controls, the revision must explain how reducing dust exposure, the operator dust standard in effect. the operator would verify compliance must train the affected miners to follow Unusual operating circumstances do with the prescribed administrative prescribed administrative controls and not normally last for an extended period control. The district manager may require their cooperation for them to be of time. Therefore, use of PAPRs for require the operator to modify the effective. compliance purposes is limited to 30 administrative controls before granting In addition, the operator would be consecutive days. The district manager provisional approval of the proposed required to ensure that no occupation is may revoke the operator’s authority to plan revision incorporating the use of exposed to concentrations of respirable use PAPRs under special circumstances such measures as a supplementary dust that exceed the applicable dust for failure to comply with this control. standard. MSHA will evaluate the requirement. If the operator exceeds this Proposed paragraph (b) would require effectiveness of the dust control time period or if respirable dust samples the operator to verify, in accordance parameters and the operator’s taken by either the operator or MSHA with proposed § 70.206(b) through (e), performance in complying with all indicate miners are being overexposed, the adequacy of the revised plan provisions of the approved plan. the operator must revise and verify the parameters incorporating the use of Since the use of administrative adequacy of the proposed plan administrative controls within 30 controls as a supplementary control is parameters under the prevailing calendar days of obtaining provisional not intended to be permanent and their operating conditions. Comments are approval from the district manager. use could be permitted only until specifically requested on this issue. Accordingly, respirable dust samples feasible engineering controls become Permitting the use of PAPRs to would be collected in the environment available, proposed paragraph (b)(3) supplement existing engineering of (1) The occupation(s) under would require the operator to continue controls to protect individual miners administrative controls, (2) the DO, and to seek and implement additional under special circumstances as (3) other occupation(s) that may be improvements when they become proposed is consistent with the intent of designated by the district manager. available. To ensure compliance with

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these requirements, MSHA will review adequacy of the approved plan Under paragraph (a), the operator the operator’s approved plan parameters is in question and miners are would begin quarterly sampling during parameters, including the operator’s at risk of being overexposed as indicated the next full 3-month period following compliance history, every 6 months to by MSHA-collected respirable dust MSHA notification of the designation of determine if the operator is using all samples used to audit operator a MMU for sampling. The proposed rule feasible engineering controls and if the compliance with applicable standards. provides a schedule for quarterly plan parameters continue to be suitable Therefore, rather than require all sampling. For example, during the to the current operating conditions. If operators to sample quarterly, the period January 1 through March 31, the district manager determines that quarterly monitoring requirement is operators would be required to sample other controls have become available triggered when airborne dust each designated MMU in producing which would be suitable to the concentrations, as measured under status. When there is a change in the particular MMU, the district manager MSHA’s sampling program, exceed the operational status of the particular would notify the operator and the applicable dust standard. This risk- MMU that affects operator monitoring, representative of miners of such based approach is more performance- proposed § 70.219(a) requires the findings. oriented and minimizes unnecessary operator to report such status change to MSHA approval to use administrative sampling. The purpose of operator the district manager. Suppose, for controls as a supplementary control may quarterly sampling would be to monitor example, a MMU has been in be revoked if the operator fails to meet the adequacy and suitability of the nonproducing status for 75 calendar the requirements of proposed approved dust control parameters under days during the current quarterly paragraphs (b)(1), (2) and (3) of this prevailing conditions. sampling period, the operator would section. If the operator’s plan provisions Since operators have the still be expected to satisfy the sampling are revoked, the operator would be responsibility for providing a workplace requirements because there would be required to submit a revision to the plan that is free of excessive dust, all sufficient time remaining in the current parameters for the affected MMU that operators are encouraged to design and period to sample the required one shift. would include a VPL at which implement a monitoring program Failure to submit the required number compliance with the applicable dust suitable to their specific mine to ensure of valid respirable dust samples within standard would be achieved. that the applicable dust standard is not a given quarterly period would constitute a violation of this provision. Section 70.215 Quarterly Evaluation of exceeded. MSHA believes that operators Operators would be encouraged to Approved Plan Parameters have a number of incentives to monitor the quality of the air in each MMU on conduct the required sampling at the Because conditions in an a regular basis to ensure they can (1) beginning of each quarterly sampling underground mine are constantly assess the effectiveness of their dust period. All samples submitted by the changing, the effectiveness of previously control parameters or need for operator would be processed by MSHA. approved dust control parameters for a adjustments to continually comply with To provide consistency and particular MMU may change. the applicable dust standard and (2) uniformity among operator-collected Consequently, plan parameters may avoid citations and penalties during samples for purposes of monitoring plan later be inadequate in preventing MSHA sampling inspections. effectiveness, the proposed monitoring overexposures on individual shifts and Under the proposed rule, the program would require the operator to adjustments may be necessary to sampling process would begin with the sample selected occupations in continually comply with the applicable determination by the district manager of accordance with proposed § 70.206(b), dust standard. Therefore, in addition to the particular MMUs which would be (d) and (e) for one shift. Also, since the ensuring compliance with the plan regularly sampled at the mine. In objective of quarterly sampling is to parameters under existing § 75.362(a)(2), determining which MMUs at a mine evaluate the continued adequacy of the the operator also has the responsibility should be sampled periodically, the approved plan parameters under the to ensure that the plan parameters district manager would, under the prevailing conditions, each sample must continue to be effective in controlling proposed rule, first review the results of be collected under the operating respirable dust as required by respirable dust samples after each conditions specified in proposed § 75.370(a), and to upgrade the plan sampling inspection of a MMU. If a § 70.201(e) which specifies that the parameters when deemed appropriate. valid equivalent concentration amount of material produced must This is necessary to prevent measurement for any occupation equal or exceed the VPL, unless overexposures on individual shifts and, exceeds the applicable dust standard by sampling in accordance with proposed in the long run, the occurrence of coal at least 0.1 mg/m3, quarterly sampling § 70.220(d). Only the dust control workers’ pneumoconiosis and silicosis would be required. parameters listed in the approved in miners. The proposal also provides for the ventilation plan, at levels not exceeding The importance of assessing the suspension of quarterly sampling when 115 percent of the specified quantities, continued adequacy of plan parameters all respirable dust samples submitted by are to be in place during sampling. As and the role of operators in that process the operator in accordance with this in verification sampling, if the operator was recognized by the Dust Advisory section, together with samples taken by fails to attain the VPL on the shift Committee: MSHA during at least four consecutive sampled, all samples for that shift will MSHA should develop specific quarters, demonstrated continuing be voided by MSHA. However, if any performance requirements for operator compliance with the applicable dust sample, regardless of production, is sampling relative to documentation of standard. To ensure that the proper found to exceed the applicable dust continued adequacy of the plan parameters. MMUs are exempted from quarterly standard by any amount, it would be (MSHA, 1996) sampling when miners are no longer at used by MSHA to determine the To accomplish this, proposed § 70.215, risk of being overexposed, each equivalent concentration for that would require an operator to implement operator- and MSHA-collected sample occupation. Also, if the MMU being a 3-month interval (quarterly) sampling must be at or below the applicable dust sampled is authorized to use PAPRs program at MMUs where the continued standard. under special circumstances (proposed

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§ 70.212) and those circumstances where the excessive dust condition applicable dust standard in effect, the prevent the MMU from achieving the occurred; (3) the equivalent plan parameters would need to be VPL, all samples for that shift would be concentration measurement of each upgraded and verified under current used to determine the equivalent sample collected; (4) the specific action conditions. Because the results indicate concentration for the affected taken to reduce the concentration of that miners are being overexposed, occupations. respirable dust to within the applicable MSHA will conduct follow-up sampling Since these samples are for evaluation dust standard. MSHA will be providing whenever an operator’s quarterly purposes, the operator would not be the operator with a respirable dust sample meets or exceeds the CTV and required to use a control filter in sample data report that contains much the plan parameters are not revised by accordance with proposed § 70.201(d). of the same information required under the operator. The district manager may require the this paragraph. In order to reduce the Under proposed paragraph (e), the operator to reverify the adequacy of the operator’s paperwork burden, the results of operator quarterly sampling plan parameters for a particular MMU MSHA respirable dust sample data will not be used to determine based on these results and other report could serve as this record, compliance with the applicable dust compliance data if the data indicates provided the operator includes the standard. If any sample result exceeds that the parameters are no longer specific corrective action taken, certifies the CTV, the operator would not be effective in maintaining compliance. If, its accuracy and completeness, and cited for a violation as would be the on the other hand, the operator or retains the record for at least 12 months case if MSHA sampled. The operator MSHA is prevented from confirming the at a surface location as required by would, however, be required to take suitability of the approved dust control § 75.363(c) and (d). The dust record corrective action. Failure to take such parameters to the current operating does not need to be countersigned, action to reduce the respirable dust conditions because of repeated provided that the mine official concentration within the applicable submission of invalid samples, certifying the record is aware of the dust standard would be citable under reverification of the plan parameters monitoring results and directed or this section. would be required by the district supervised the implementation of the MSHA requests comments on the manager. corrective actions. These records appropriateness of the criteria used to Under proposed paragraph (c), when provide notice to mine management that trigger operator monitoring of plan a valid equivalent concentration excessive dust conditions are recurring, effectiveness and proposed frequency, measurement exceeds the applicable especially with regard to the 3-month 3 the locations in the mine, and the dust standard by at least 0.1 mg/m , the effectiveness of the various corrective interval, that maximize the protection of operator must make approved actions. For example, if an excessive miners’ health. Also, whether a more performance-oriented requirement respirators available to the affected dust condition occurs repeatedly and miners in accordance with § 70.300, should be imposed on operators, the same corrective action is taken, the unless the occupations are under a requiring them to monitor at the corrective action may not be effective. PAPR protection program. The operator frequency needed to assure, with Posting the record on the mine bulletin must determine the cause and correct reasonable accuracy, the continued board will alert all affected miners of the identified deficiency to reduce the adequacy of the approved plan the particular dust hazards to which concentration of respirable dust to parameters in preventing overexposures they have been exposed and the specific within the applicable dust standard and on individual shifts. corrective action(s) being taken by the avoid future overexposures. This operator to reduce the dust Section 70.216 Respirable Dust requires the operator to review the dust concentration in the work environment Samples; Transmission by Operator control parameters and to determine what factors may have contributed to to within the applicable dust standard MSHA is proposing no substantive the overexposures. As discussed to prevent similar occurrences in the changes to existing § 70.210, except for elsewhere in the preamble, if the future. The requirement to inform removing reference to § 70.202 (Certified sampled occupation is under an miners is necessary to assure miners person; sampling) from existing approved PAPR program, each valid that the operator is making efforts to paragraph (c) to eliminate repetition concentration measurement would be provide a safe and healthful work since revised § 70.201 specifies that all adjusted in accordance with § 70.2. The environment. This is a new requirement sampling required under this part must equivalent concentration would be and the Agency solicits comments on be conducted by a certified person, and compared to the applicable dust the proposed approach to require that redesignating it as § 70.216. Existing standard. For example, assume the excessive dust conditions and the paragraph § 70.210(e) would be removed reported equivalent concentration of a corrective action taken be recorded, since all samples submitted by the sample is 2.56 mg/m3 and the MMU is certified and retained as currently operator under this part would be assigned a protection factor of 4. Then required for other hazards under processed by MSHA. The proposed rule, the equivalent concentration § 75.363. like the existing rule, requires all measurement, adjusted for the use of a If the results of quarterly sampling respirable dust samples collected in PAPR, is 0.64 mg/m3 [2.56 mg/m3/4 = indicate that the approved plan accordance with this part to be 0.64 mg/m3]. parameters are no longer adequate to transmitted to MSHA within 24 hours Additionally, since the presence of control respirable dust under the after the end of the sampling shift in excessive dust poses a significant health prevailing operating conditions, the containers provided by the hazard to miners, proposed paragraph operator must revise the plan manufacturer of the filter cassette. The (c)(3) would require excessive dust parameters and submit the proposed need to verify the adequacy of the dust conditions to be recorded in the same revision to the district manager for control parameters for a particular MMU manner, but with some exceptions, as review and approval. For example, if in the shortest possible time requires the hazards recorded under § 75.363(b) any valid equivalent concentration that samples be promptly transmitted to of this title. The record would include: measurement meets or exceeds the MSHA for analysis. (1) The date the sample was taken; (2) citation threshold value (CTV) listed in Each sample transmitted by the the location in mine and the occupation Table 70–2 that corresponds to the operator must be accompanied by a

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properly completed dust data card. All providing data on individual samples, least 31 calendar days following receipt. dust data cards submitted must be the Agency would also furnish If using a PCDM, the end-of-shift signed by a person certified to collect information on the dust control exposure data along with the samples and must include that person’s parameters that were in effect during information specified in paragraph certification number. By signing the MSHA sampling by providing a copy of (b)(2) must be posted for at least 7 card, that person certifies that the completed MSHA Form 2000–86 calendar days following the end of the sample was collected in accordance (Revised), Respirable Dust Sampling sampling shift. and Monitoring Data. with the requirements of this part. Section 70.218 Violation of Respirable To maintain program integrity, all Paragraph (b)(1) of the proposed rule Dust Standard; Issuance of Citation; samples collected by an operator would retains the existing requirement that the operator post on the mine bulletin board Action Required by Operator; and be considered by this proposed rule to Termination of Citation fulfill the sampling requirements of this the respirable dust sample data report part. Samples to be used by operators provided by MSHA. The operator must Proposed § 70.218 addresses the for other purposes would have to be post the end-of-shift exposure circumstances under which MSHA identified in writing or by electronic information if using a PCDM in would issue a citation for excessive dust mail to the district manager, by each accordance with § 70.220. The results of and establishes the specific actions that filter cassette identification number, all respirable dust samples collected by an operator would be required to take prior to their intended use. federal mine personnel that MSHA within the time for abatement fixed in Operators that use PCDMs under would provide under revised paragraph the notice. It also sets forth the proposed § 70.220 are exempt from the (a) must be posted. Additionally, the conditions under which MSHA would requirements of this section, except operator would post a copy of MSHA terminate such citations. when transmitting samples for quartz Form 2000–86 for each MMU sampled Under proposed paragraph (a), the analysis required by proposed by federal mine personnel. This operator would be cited for a violation § 70.220(c). requirement would ensure that miners of either § 70.100(a) and (b), or § 70.101 and their representative(s) are provided when a valid equivalent concentration Information To Be Posted on the Mine information concerning the quality of measurement for any occupation Bulletin Board the mine air where they work and the sampled by MSHA exceeds the citation Section 70.217 Respirable Dust dust control parameters under which threshold value (CTV) listed in Table Samples; Report to Operator; and MSHA sampling was conducted. 70–2 that corresponds to the applicable Posting MSHA recognizes the importance of dust standard in effect. As discussed in input from the miners and their section III.A.4. of the preamble, these Under the proposed rule, existing representatives in the plan approval measurements will be based on single- § 70.210 would be revised and process. To assure miners understand shift samples collected with approved redesignated as § 70.217. It specifies the the verification process, proposed sampling devices that will be operated type of sampling and other related paragraph (b)(3) would require the portal-to-portal. The devices will remain information the operator would post on posting of all written notifications operational, during the entire shift or for the mine bulletin board. The proposed received from the district manager 8 hours, whichever time is less, as has posting requirements are intended to pertaining to verifying the adequacy of been the long-standing practice. serve in the best interest of miners the dust control parameters under this The CTVs and an explanation of how without being overly burdensome to part. This includes all correspondence they were derived was originally operators. The continuation of posting submitted in accordance with proposed published in Federal Register notice of requirements is intended to promote §§ 70.209 and 70.212. The district February 3, 1998 (63 FR 5687), entitled miner awareness of process of verifying manager would be available to discuss ‘‘Coal Mine Respirable Dust Standard the adequacy of the dust control with the representative of miners as Noncompliance Determinations.’’ As parameters for each MMU specified in well as individual miners all aspects of explained in that notice and in the mine ventilation plan and of the the plan parameter verification process. Appendix C of the current notice of respirable dust conditions in the mine. Proposed paragraph (c) specifies the proposed rulemaking, each CTV was This is consistent with the statutory length of time the information provided calculated so that citations would be intent that miners play a role in under paragraph (b) would be posted on issued only when a single-shift preventing unhealthy conditions and the mine bulletin board. Results of measurement demonstrates practices where they work. This operator verification sampling and all noncompliance at least at a 95 percent approach is consistent with the written notifications received from the confidence level. Under this proposed recommendations of the Dust Advisory district manager that pertain to the plan rule, MSHA would issue no more than Committee regarding miner verification procedures could be one citation based on the result of single participation in the sampling process. removed immediately following shift samples from the same MMU, Paragraph (a)(1) through (6) of the notification of approval of the plan unless separate citations are warranted proposed rule retains the existing parameters for a particular MMU. for occupations exposed to different requirement regarding the types of data Correspondence required under dust-generating sources. The following MSHA would report on samples proposed § 70.212(c)(1) regarding the examples illustrate how MSHA would submitted by the operator. The results of occurrence of special circumstances apply the CTVs to make noncompliance all MSHA sampling would be reported requiring the use of PAPRs must remain determinations. Suppose that a to the operator. The data report would posted for the period of time that PAPRs measurement of 2.41 mg/m3 is obtained include the identification of the MMU are in use. The respirable dust sample for the DO, and measurements of 2.34, or DA in the mine where each sample data report provided by MSHA on 1.54, 2.00, and 1.56 mg/m3, are obtained was collected; the equivalent operator sampling in accordance with for four other occupations exposed to concentration of respirable dust for each proposed § 70.215 and MSHA sampling the same dust-generating source as the valid sample; the occupation code, results, including the information DO during a single shift on a MMU where applicable; and the reason for specified in proposed paragraph (b)(2) required to comply with an applicable voiding any sample. In addition to of this section, must be posted for at dust standard of 2.0 mg/m3. Because at

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least one measurement exceeds the 2.33- concluded that ‘‘the probability of coal mine dust published in today’s mg/m3, CTV (the citation value for a 2.0- erroneously failing to cite a case of Federal Register, the Mine Act requires mg/m3 standard), a citation would be noncompliance at a given sampling MSHA to regulate exposures on each issued for exceeding the applicable dust location is less than 50 percent when shift. Since MSHA does not track the standard on the shift sampled. Even the applicable dust standard is exceeded number of shifts each miner works over though two individual measurements on a significant proportion of shifts at a lifetime, MSHA must, protect miners (2.41 and 2.34 mg/m3) exceeded the that location’’ (63 FR 5709). by limiting their exposure on each shift. CTV, one of which is the DO, only one Furthermore, noncompliance Furthermore, as explained in Parts VI citation would be issued. The DO would determinations based on the results of and VII of today’s notice, eliminating be identified in the narrative of the single-shift samples would reduce the overexposures on individual shifts is citation as the affected working chances for failure to cite cases of beneficial to miners’ health. For miners environment, because all occupations noncompliance. According to the working where there is a pattern of were exposed to the same dust- inspector sampling inspections of recurrent overexposures on individual generating source. Since MSHA would MMUs conducted between August and shifts, eliminating such overexposures assume responsibility for all compliance December 2001, only 14 MMUs were is expected over a working lifetime, to sampling under this proposed rule, found to be in violation of the significantly reduce the risk of CWP. these five occupations would be applicable dust standard. These MMUs Therefore, the Secretary has concluded resampled by federal mine personnel were cited under the more recent that equivalent dust concentrations during abatement sampling to verify enforcement policy of averaging should be maintained below the that the condition causing the excessive measurements taken over multiple applicable dust standard on each and dust levels has been corrected if the shifts, compared to 260 MMUs that every shift. district manager concluded that a would have been citable using single- If an operator receives a citation for revised plan was not necessary. shift measurements in combination with exceeding the applicable dust standard, Suppose that in the previous example the CTV table. This clearly demonstrates proposed paragraphs (b)(1) through (4) the 2.34-mg/m3 measurement was that the proposed enforcement strategy would require the operator to take obtained for a roof bolter, and the MMU would not compromise miners’ health, specific actions to immediately protect was being ventilated using a double- instead it would have identified 246 miners and to prevent them from being split ventilation system. This means that additional instances of overexposure. overexposed on subsequent shifts the roof bolter, working on a separate Otherwise, these overexposures would within the time period fixed in the split of air from that of the continuous continue to go undetected under the citation. First, the operator would miner, is exposed to a different dust current policy of measurement continue to make available approved generating source than the DO. averaging. respiratory equipment to affected Therefore, the roof bolter may not be MSHA has also carefully considered miners in accordance with existing adequately protected by dust controls suggestions from previous commenters § 70.300 and encourage their use until implemented for the DO. Consequently, that the Agency cite for noncompliance the overexposure condition is corrected, two citations would be issued. Since whenever any single-shift measurement unless the cited occupation is already MSHA samples would be used, all dust exceeded the applicable dust standard under a PAPR protection program. The control parameters and mining activity as this would provide greater health operator would then review the dust would be documented on MSHA Form protection to the miner. However, control parameters in effect to 2000–86. This information would be MSHA rejected these suggestions determine the cause of the excessive reviewed by MSHA along with the because an enforcement action might dust concentration and correct any sample results to determine if the dust not be sustained at this level of deficiencies identified to reduce the control parameters specified in the confidence. The likelihood that a equivalent concentration to within the approved ventilation plan would need particular measurement exceeds the applicable dust standard. If the to be upgraded. applicable dust standard, but not the corrective action the operator takes MSHA believes that, because of the CTV, due to measurement error, can indicates that the dust control large ‘‘margin of error’’ separating each actually exceed the likelihood that the parameters originally approved for the CTV from the corresponding applicable measurement exceeds the standard due MMU may no longer be adequate for the dust standard, use of the CTV table to excessive dust concentration. A current conditions, the operator should would provide ample protection against thorough technical discussion of this revise the plan parameters. erroneous citations, a concern raised by issue is provided at 63 FR 5709–5712 Since MSHA would be assuming previous commenters. This matter was (Appendix D of the Federal Register responsibility for all compliance fully explored in the analysis published notice cited above). sampling, proposed paragraph (a)(4) in Appendix C of the February 3, 1998 MSHA has concluded that using would require the operator to notify the notice (63 FR 5703–5709). That analysis single-shift measurements for district manager in writing or by showed that for exceptionally well- noncompliance determinations in electronic means, of what those controlled environments, the probability accordance with the CTV table neither corrective measures are within 24 hours that any given citation is erroneous will increases nor decreases the applicable after implementation. This would be substantially less than 5 percent. The dust standard. Operators would enable the district manager to determine analysis also showed that this continue to be required to maintain whether MSHA should schedule probability is even smaller in compliance with the applicable dust sampling to assess the adequacy of the environments that are not well standard at all times. Also, the operator’s corrective actions or whether controlled. Therefore, any citation operator’s dust control parameters must to require the operator to initiate issued under this proposed rule in be verified as adequate to maintain dust verification sampling. This accordance with the CTV table would be concentrations at or below the determination would be based on (1) the much more likely the result of excessive applicable dust standard on all shifts, review of the information the operator dust concentration rather than not merely at or below the CTV. provides; (2) the latest MSHA measurement error. With regard to the As explained in the notice regarding inspection report documenting the risk of erroneous failures to cite, MSHA single-shift measurements of respirable measured quantities of the dust control

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parameters that were in use and other approved are no longer adequate to Task Group and the Dust Advisory conditions that were in effect at the time maintain respirable dust levels at or Committee both of which recommended of sampling that resulted in MSHA below the applicable dust standard accelerated development, field testing, issuing a citation for excessive dust; and under current operating conditions at and immediate deployment of such (3) the operator’s prior performance in the MMU. monitors once verified as reliable. complying with the plan parameters. If, instead of MSHA conducting While such a monitor is not yet If the district manager concludes that sampling to determine whether the commercially available, significant the corrective measures taken are operator’s actions were effective to gain progress has been made to advance the sufficient to achieve and maintain compliance, the operator initiates state of personal continuous monitoring compliance, MSHA would conduct verification sampling under proposed technology, especially since MSHA sampling to determine if the operator’s § 70.206, MSHA would terminate a published its proposed rule on plan actions were effective to gain citation for excessive dust after the verification on July 7, 2000. According compliance. For example, if the operator revised plan parameters were verified to NIOSH, a one-piece personal dust believes that the overexposure was by the operator to be adequate for the monitor (called ‘‘PDM–1’’ for short) caused by improperly following work current mining conditions. would be available for in-mine use by practices, the proper course of action the end of 2003. This device is designed Reporting of Changes in Operation would be to review these work practices to provide continuously-measured Status with the affected miners rather than exposure information in real-time require the operator to revise the plan. Section 70.219 Status Change Reports during the shift, projected end-of-shift Since there would be no need to change The proposed rule would retain the average concentration, and the time- the plan parameters, MSHA would existing provision of § 70.220, which weighted average dust concentration initiate abatement sampling in this would be redesignated as § 70.119, with reading within 15 minutes after the end- particular case. Like compliance some revision. Not only would the of-shift. sampling, federal mine personnel would operator continue reporting to the Therefore, as recommended by the sample five different occupations district manager changes in the Dust Advisory Committee and urged by including the occupation originally operational status of a mine, MMU, or the mining community, MSHA is cited for the entire shift or for 8 hours, DA that affect the respirable dust proposing a new standard under whichever time is less. However, if this sampling requirements of this part, but § 70.220 to encourage deployment of the problem should recur, the district also when such status changes could PDM–1 or other approved PCDMs by manager would inform the operator that potentially affect compliance sampling permitting operators to use this the plan parameters are no longer which will be conducted by MSHA. technology in conjunction with adequate to provide the required level of This would enable MSHA to carry out engineering and administrative controls health protection and require the its sampling responsibilities more as part of a comprehensive dust control operator to initiate verification effectively and efficiently by avoiding program to prevent overexposures on sampling. unnecessary mine visits. Status changes individual shifts. Proposed paragraph (b) would permit If, on the other hand, the district would be reported either in writing or the operator to use administrative manager determines that dust control by electronic mail within three working controls without obtaining approval parameters may not maintain respirable days after the status change occurred. dust levels at or below the applicable from the Administrator for Coal Mine dust standard and requires the operator Use of Personal Continuous Dust Safety and Health under proposed to upgrade the dust control portion of Monitors (PCDM) to Monitor Exposure § 70.209. The operator would be required to include in the proposed the mine ventilation plan, the operator Section 70.220 Personal Continuous plan, the specific administrative would be required to initiate the plan Dust Monitor (PCDM) verification process under proposed controls to be used, how each would be § 70.206. MSHA has long recognized that employed and by whom, and the Under proposed paragraph (c), an continuous monitoring of the work method for ensuring that such controls excessive dust citation would be environment offers the potential to are complied with on each shift. In terminated when the results of all valid improve miner health protection. The addition, the operator would be respirable dust samples collected by current system of monitoring required to identify the miners or MSHA were at or below the applicable concentrations of respirable dust to specific occupations to be monitored on dust standard. The subsequent action which miners are exposed relies on each shift using PCDMs and to form would clearly and fully describe periodic sampling and on corrective implement procedures to ensure that no the action taken to abate the violation. actions taken after the delay in miner will be exposed during any shift If compliance was demonstrated, the obtaining the sampling results. to dust concentrations in excess of the operator may be required to revise the Continuous monitoring, on the other applicable dust standard. plan parameters depending on the type hand, would allow mine operators and Since the device is designed to of corrective action taken to abate the miners to be aware of the actual dust display continuous real-time dust violation. This would include, at a conditions on a real-time basis. This concentrations, the operator would be minimum, the actual dust control would provide mine personnel with expected to develop written procedures parameters that were in effect when current information on the performance for the proper use of this type of dust MSHA sampled the MMU. If MSHA and condition of the dust control monitor. Key to the successful samples indicate continued parameters. Early indications of employment of this technology is the noncompliance, then MSHA may deteriorating conditions, when the dust proper application of its capability to proceed to revoke approval of the dust levels approach the applicable dust supply timely information on dust control provisions of the ventilation standard, would enable mine personnel levels and miner exposure during the plan. The operator may be required to to take appropriate corrective measures, shift. The ability to be aware of the dust initiate the verification sampling if the thus averting possible overexposure. levels to which miners are exposed in district manager determines that the The health benefits of continuous real time would require the operator to dust control parameters originally monitoring were also recognized by the develop specific guidelines regarding

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the frequency with which the exposure incorporates the parameters that were in mines? If so, what should it consist of measurements will be read and the effect during verification sampling. (e.g., monitor one shift each week)? types of action to be taken and by When approval is granted by the Since the PCDMs is capable of whom. The operator would need to district manager, the operator would be supplying timely information on dust specify how and by whom will the end- required to monitor the exposure of levels, how should engineering and of-shift measurements be recorded and each miner on a MMU on every shift administrative decisions be based on certified. The operator should also under the prevailing conditions, unless readings of the PDM? For example, detail the role of the miner in this the operator demonstrated during should a PCDMs reading trigger an process. To ensure the continued verification sampling that the exposure immediate check of the dust control reliability of the information supplied of each miner working on the same shift parameters or adjustments to operating by the instrument, the operator must is represented by sampling only the DO conditions, such as the amount of air follow the calibration and maintenance and/or another occupation specified in being delivered to the working faces? procedures prescribed by the § 70.206(a). If approved by the district Who should be responsible for deciding manufacturer. MSHA technical manager, the operator would be on the proper course of action to be assistance would be available to assist permitted to conduct representative taken based on a PCDMs reading (e.g., any operator who elects to use this personal monitoring. Each PCDM would miner being monitored, section technology in developing an effective be operated portal-to-portal and remain foreman, etc.)? Who should be and reliable exposure monitoring operational the entire shift or for 12 empowered to make the determination program. hours, whichever time is less. to remove an individual so that their Proposed paragraph (c) would require The end-of-shift exposure end-of-shift exposure is not above the the operator to demonstrate, as measurements would not be used by applicable dust standard? prescribed by proposed § 70.204, the MSHA to cite an operator for exceeding adequacy of the proposed plan in the applicable dust standard. Instead, B. Part 75 controlling respirable dust by the operator would be required to take Section 75.370 Mine Ventilation Plan; monitoring each miner’s exposure under the actions required by proposed Submission and Approval the operating conditions specified in § 70.215(c), (d) and (e) whenever a valid proposed § 70.201(e). Since the end-of-shift measurement exceeds the This proposed rule would amend objective is to verify the effectiveness of applicable dust standard by at least 0.10 § 75.370 by adding a new paragraph (h) the operator’s respirable dust control mg/m3. Violations of either § 70.100(a) that reflects the proposed change in program, the PCDM would remain with or § 70.101 would be cited when a valid § 70.2 and paragraph (d) of § 70.201 of a miner portal-to-portal and be sample taken by MSHA met or exceeded this part. Under proposed paragraph (h), operational for the entire shift or for 12 the citation threshold value (CTV) listed the operator would be required to record hours, whichever time is less to reflect in Table 70–2 that corresponds to the and maintain records of the total maximum length of an extended shift. applicable dust standard in effect. When amount of material produced each Since the device is not designed to cited, the operator would be required to production shift by each MMU during assess the quartz exposure of individual take the actions required by § 70.218(b). the previous six-month period, which miners, the operator would be required The district manager will consider the would be made available for inspection to collect separate samples for quartz citation abated if the operator meets the by authorized representatives of the analysis. Samples would be collected in requirements of proposed § 70.218(c). Secretary and the miners’ the same way as for individual miners Comments are solicited on the representative. This is the same type of assigned to the occupations identified in proposed monitoring approach and production information that the proposed § 70.206(a). Additionally, in other alternative approaches using operator is currently reporting on the accordance with proposed § 70.201(d), PCDMs to limit exposure of miners to dust data card accompanying each the operator would be required to use a respirable coal mine dust. Specifically, bimonthly sample and which is control filter when collecting samples under what conditions should MSHA subsequently posted by MSHA on the for quartz analysis. As discussed under permit its use as part of the approved Internet. Paragraph (h) would not proposed § 70.201(d), the weight gain of ventilation plan without requiring the require an operator to record and each exposed filter cassette will be adequacy of the operator’s proposed maintain other information such as adjusted by subtracting the weight gain exposure control program to be verified? recovery and reject rate, inherent or loss of the control filter cassette. If implementation of this technology is moisture of the product, sulfur content These samples would be transmitted to permitted as an alternative to plan or other variables associated with each MSHA in accordance with proposed verification, what specific provisions production level. § 70.216. Also, the end-of-shift exposure should be included in the ventilation These production records are information for each miner along with plan to ensure that miners will not be essential to demonstrate the adequacy of production data must be posted on the overexposed on any particular shift? the dust control parameters in mine bulletin board for 7 calendar days Should all miners be required to wear controlling respirable dust as required following completion of the shift. PCDMs or only specific occupations by § 75.370(a)(1) of this title. The As previously discussed under and, if so, which occupations? How records are needed to establish the proposed § 70.207, approval of the frequently should PCDMs be used (e.g., verification production level (VPL), in operator’s plan incorporating the use of every shift, etc.)? Should the end-of- accordance with revised § 70.2, under PCDMs would depend on the results of shift measurements be used by MSHA to proposed § 75.371(f), and to confirm verification sampling and the operating enforce compliance with the applicable that the 30-shift period on which the conditions in effect for each shift dust standard? Is it appropriate to use VPL is based represents typical monitored. The district manager would PCDMs only in the face areas or in production conditions for the MMU. approve the plan if (1) no valid outby areas as well? Is there an Additionally, MSHA and the miners’ equivalent concentration measurement alternative to a continuous monitoring representative need these records to exceeds the critical values listed in program that could provide equivalent monitor changes in production levels as Table 70–1 that correspond to the protection? Should there be an it directly impacts the continued number of shifts monitored, and (2) it alternative approach tailored to small effectiveness of the plan’s dust control

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provisions. Finally, because verification Although a VPL and shift length for applicable dust standard. These are and subsequent quarterly monitoring of each MMU would be included in the identical to the procedures proposed the adequacy of plan parameters is ventilation plan, the operator would not under § 70.101. The proposed rule also conditioned on the VPL, these records be cited if the total amount of material clarifies the application of specific are necessary to determine if the VPL produced or the length of the actual transfer and pay-protection provisions used in approving the operator’s dust production shift is not as specified in under special circumstances that reflect control parameters for a particular MMU the plan. MSHA considers these to be long-standing MSHA policy in effect continues to reflect typical production plan design criteria, not minimum plan since the rule became effective on levels at the MMU. parameters that must be in effect on December 5, 1980. The proposed rule would permit every shift. MSHA would expect The proposed rule substantially production records for each MMU to be production on a MMU to exceed the revises the existing operator sampling maintained in any form utilized by the VPL on about 33 percent of all requirements under Subpart C of part operator to measure the total amount of production shifts. If the district manager 90. Consistent with the proposed material produced, provided the method determines that an operator’s actual amendment to part 70, the proposed is the same as that used to establish the production exceeds the VPL on more rule would revoke existing provisions VPL under proposed § 75.371(f). For than 33 percent of the production shifts concerning operator bimonthly and example: number of loaded shuttle cars, over a six-month period, or the shift abatement sampling of part 90 miners. feet of advance, raw tonnage, or number length no longer reflects the conditions Consequently, §§ 90.201(d) and 90.208 of longwall passes would each be an under which the approved plan would be removed. While MSHA would acceptable method of recording parameters were originally verified, and be assuming responsibility for all production—provided the same method operator or MSHA samples exceed the enforcement-based monitoring of part was consistently used. applicable dust standard, the district 90 miners in underground coal mines, operators would continue to play a vital Section 75.371 Mine Ventilation Plan; manager may require that the adequacy role in assessing the quality of the mine Contents of the plan parameters be verified under different operating conditions of atmosphere in positions to which new The proposed rule would revise production or shift length. or transferred miners are assigned to paragraphs (f) and (t). Existing Since MSHA is proposing to revoke work. paragraph (f) would be revised to existing §§ 70.207 and 70.208, which As under existing § 90.207, which has require the dust control provisions of require bimonthly sampling by mine been revised and redesignated as the ventilation plan to include any operators, existing paragraph (t) would § 90.204, the operator employing part 90 specific work practices used to be revised to remove the provision that miners would be required to collect five minimize the dust exposure of mine operators identify in the valid samples within a prescribed time individual miners assigned to specific ventilation plan the locations where period for purposes of verifying the occupations, information on the samples for designated areas (DA) suitability of a new or transferred part location of the roof bolter(s) during the would be collected, including the 90 miner’s assigned work position. To mining cycle for each continuous miner specific location of each sampling ensure that the part 90 miner is not section, and the cut sequence for each requirement, and the reference to personally overexposed, the duration of longwall mining section. Also, the dust § 70.208. However, to ensure that the sampling would no longer be limited to control provisions of every ventilation mine atmosphere where miners 480 minutes, but would be carried out plan would be required to include the normally work or travel is continuously over the miner’s entire work shift, length of each normal production shift maintained in compliance, proposed regardless of the number of hours and the verification production level paragraph (t) would continue to require worked. (VPL) as determined in accordance with mine operators to identify in the mine Another significant change is how the revised § 70.2. This information would ventilation plan the location of each DA, results of operator-submitted samples enable MSHA to more effectively assess defined in revised § 70.2, and the would be analyzed by MSHA and the the suitability of the operators’s particular dust control measures that type of action required based on those proposed plan parameters before would be used at the dust generating results. MSHA would abandon its long- determining whether or not to grant sources for these locations. These standing practice of relying on averaged provisional approval. For example, the locations would continue to be sampled results to make compliance decisions. dust control parameters may be less by MSHA personnel as discussed earlier Because averaging can obscure specific protective if verified over an 8-hr shift (see Background Section) to monitor instances of overexposures by diluting when the length of the production shift operator compliance with the applicable sample results taken over multiple is 9 hours. Also, since MSHA recognizes dust standard and to assess the shifts, each valid sample would be the critical role of miners in the adequacy of the operator’s dust control compared with the applicable dust implementation of the plan parameters measures at these locations. standard. Therefore, to be confident that at each MMU, this is intended to a part 90 miner is placed in an provide more information to miners C. Part 90 atmosphere which actually meets the concerning the specific conditions To maintain consistency with the applicable dust standard, all five valid under which the adequacy of the plan proposed revisions to part 70, subpart A samples must be at or below the parameters for each MMU was of this proposed rule also contains new standard. If the result of any sample demonstrated. With this information, definitions of identical terms. Included exceeds the standard by at least 0.1 mg/ the miner will be able to bring problems are definitions of new terms such as m3, the operator would be required to to the attention of mine management or ‘‘approved sampling device,’’ ‘‘citation take corrective action and take an to request an inspection by MSHA threshold value,’’ ‘‘equivalent additional five valid samples for the under § 103(g) of the Act if operating concentration,’’ ‘‘MRE,’’ and ‘‘quartz.’’ affected part 90 miner. conditions no longer reflect those in Subpart B of the proposed rule would Since the primary purpose for taking effect during verification sampling and be revised by changing the procedures these samples is to assess the suitability there is concern about the dust for determining the average quartz of the part 90 miner’s working conditions at a particular MMU. percentage used to calculate the environment, these samples would not

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be used by MSHA to cite the operator as ‘‘certified person,’’ ‘‘concentration,’’ Citation Threshold Value (CTV) for noncompliance with the applicable ‘‘mechanized mining unit,’’ and ‘‘Citation threshold value’’ would dust standard. As discussed below, only ‘‘respirable dust’’ have been modified mean the lowest acceptable equivalent MSHA-collected samples would be used either to more clearly convey the dust concentration measurement for that purpose. However, an operator intended meaning under the proposed demonstrating that the applicable dust would be cited for failure to take rule, to reflect the conventional standard has been exceeded at a high appropriate corrective action to place definition or to be consistent with the level of confidence and at which MSHA the affected part 90 miner in an definition of identical terms in proposed would cite an operator for a violation of atmosphere that meets the applicable Part 70 of this title. Most of the other §§ 90.100 or 90.101 under proposed dust standard within the specified time definitions remain unchanged under the § 90.207. Since MSHA would be period. proposed rule. No discussion is Since MSHA would assume assuming responsibility for compliance included below if a definition would responsibility for compliance and sampling under the proposed rule or abatement sampling, the proposed rule not change under the proposed rule. sampling currently being carried out by operators under existing § 90.208(a), a sets forth new procedures for Approved Sampling Device determining noncompliance with the determination of noncompliance would applicable dust standard; the specific ‘‘Approved sampling device’’ would be based solely on the results of single actions that an operator would be mean a sampling device approved by shift samples collected by MSHA in required to take within the time for the Secretary and the Secretary of accordance with proposed § 72.500 of abatement fixed in a citation; and the Health and Human Services under part this title. Appendix C explains how conditions under which MSHA would 74 (Coal Mine Dust Personal Sampler each critical value listed in proposed terminate a citation for a violation of the Units) of this title; or approved by the Table 70.2 was derived. Each CTV is standard. Under the proposed rule, Secretary when it has been calculated to ensure that citations will citations for violations of §§ 90.100 or demonstrated that a respirable dust be issued only when a single-shift 90.101 would be issued only when a concentration measurement can be measurement demonstrates valid single-shift sample demonstrates converted to a concentration noncompliance with at least 95 percent confidence. noncompliance with at least 95-percent measurement equivalent to that confidence. MSHA would consider a obtained with an approved sampling Concentration violation for excessive dust to be abated device. Under the proposed rule, The existing definition would be and terminate the citation when the respirable dust sampling for Part 90 modified by replacing the term result of a valid single-shift sample is at miners would continue to be collected ‘‘substance’’ with ‘‘respirable dust’’ to or below the applicable dust standard. using sampling devices approved by Although existing subpart D has been more clearly convey the meaning under NIOSH pursuant to existing 30 CFR part the proposed rule. revised to reflect MSHA sampling of 74. Also, to accommodate the adoption part 90 miners, the specific of advanced sampling technology in the Equivalent Concentration requirements are essentially the same. It future such as continuous respirable ‘‘Equivalent concentration’’ would now states that when approving an dust monitors, the proposed rule would mean the concentration of respirable operator’s dust control plan, the district permit the Secretary to approve and use dust, as measured by an approved manager would consider the results of any technologically advanced sampling sampling device, converted to an 8-hour MSHA sampling for compliance or devices that should become available in equivalent concentration as measured abatement purposes. It also indicates the future but could not be approved by a Mining Research Establishment that MSHA would, through compliance under the regulatory requirements of 30 (MRE) sampler. This conversion is and abatement sampling, monitor the CFR part 74. accomplished in two steps. First, the continued effectiveness of the operator’s concentration measurement is dust control measures. Finally, Therefore, under the proposed rule, multiplied by a constant factor throughout Part 90, ‘‘shall’’ has been any newly developed sampling prescribed by the Secretary specifically replaced by ‘‘must.’’ instrument would be considered an For ease of review, MSHA is approved device pursuant to this for the approved sampling device. The republishing the entire regulatory text of definition when the Secretary result is then multiplied by t/480, where subparts A, B, C and D of Part 90 as it demonstrates that the respirable dust t is the sampling time in minutes if will appear in the Code of Federal concentration measured by the new longer than eight hours, to make it Regulations. instrument can be converted to a equivalent in dosage to the concentration as measured by an MRE concentration measurement equivalent Sections 90.1 through 90.3 sampler on an 8-hour work shift. Since to that obtained by a device approved sampling will be conducted over the Scope, Definitions, and Part 90 Option under 30 CFR part 74 of this title. course of the Part 90 miner’s entire work Section 90.1 Scope Certified Person shift, which includes travel to and from This section would remain the assigned work position, t will also unchanged. The existing definition would be be equal to the length of the entire work modified by removing references to shift of the miner being sampled. If the Section 90.2 Definitions existing §§ 90.202 and 90.203. The length of the Part 90 miner’s work shift The proposed rule includes provision requiring the use of a certified is eight hours or less, then t must equal definitions virtually identical to person to conduct sampling as required 480 minutes. corresponding definitions in proposed by this part is being transferred to The current U.S. coal mine applicable Part 70 for terms such as ‘‘approved revised § 90.201. Existing § 90.203 dust standard is based on epidemiologic sampling device,’’ ‘‘citation threshold which requires approved sampling studies of British coal miners. In these value,’’ ‘‘equivalent concentration,’’ and devices to be maintained and calibrated studies, miners routinely worked 8-hour ‘‘MRE.’’ Accordingly, as in Part 70, by a certified person would be retained shifts, and their respirable dust some existing definitions of terms such and redesignated as § 90.202. exposures were assessed based on 8-

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hour measurements using a sampling the lung. Because the MRE instrument Similarly, the second step in the device known as the MRE instrument. was large and cumbersome, other, more conversion from ‘‘concentration’’ to Work shifts in U.S. coal mines now portable samplers were developed for ‘‘equivalent concentration’’ is intended frequently exceed eight hours. use in U.S. coal mines. Currently to compensate for differences between According to a recent survey of MSHA approved sampling devices use a 10-mm current conditions and conditions under District Offices conducted in August of nylon cyclone to separate the respirable which the existing applicable dust 2002, approximately 48 percent of fraction of airborne dust, instead of the standard was developed. Specifically, it underground mines work 9-hour shifts four horizontal plates used in the MRE is designed to ensure that miners or longer. Therefore, to provide the sampler. Such differences in sampler working shifts longer than eight hours intended level of protection to miners design lead to systematic differences in will be afforded the same level of working longer than eight hours, it is the amount of dust collected. Since protection as miners working an 8-hour necessary to convert coal mine dust 1980, measurements made using the shift. MSHA developed the existing concentration measurements to standard from 8-hour shift exposure currently approved cyclone-based equivalent 8-hour values as measured measurements. Therefore, MSHA will devices operating at a flow rate of 2.0 by the MRE instrument. adjust the measured concentration to be The first step in the conversion from liters per minute (lpm) were multiplied equivalent, in its effect on cumulative ‘‘concentration’’ to ‘‘equivalent by the constant factor of 1.38 prescribed exposure, to a concentration over an concentration’’ is intended to make the by the Secretary for the approved eight-hour exposure period. This is measurement equivalent to the sampling device used. Application of accomplished by multiplying the concentration measured by an MRE this factor compensates for the concentration measurement by t/480, instrument. This instrument was difference in dust collection where t is the sampling time (i.e., length designed to selectively collect airborne characteristics and makes the of the work shift) in minutes. dust in a way that would approximate measurements equivalent to what would The formula for an equivalent the deposition of inhaled particles in be obtained using an MRE instrument. concentration is:

 accumulated dust (mg) t equivalent concentration (mg/m3 ).=×138 ×  t × airflow rate  480 min

where t = sampling time in minutes proposed definition of equivalent respirable dust concentration. The (which will be the Part 90 miner’s entire concentration will maintain this same proposed definition of ‘‘equivalent work shift) and airflow rate = 0.002 m3/ MRE-equivalent 8 mg-hr/m3 daily limit, concentration’’ is meant to both min). The product of t and the airflow regardless of the length of the working preserve the ordinary definition of rate is the total volume of air from shift being sampled. ‘‘concentration’’ and to clarify the which dust is accumulated on the filter. To continue the example, the adjustment to an 8-hour equivalent. The following example is meant to exposure accumulated during the Part MSHA believes that the proposed illustrate the effect of the second step in 90 miner’s entire work shift is the same, adjustment to an ‘‘8-hour equivalent the conversion, multiplication by t/480, whether over eight hours at an average concentration’’ is necessary to protect which adjusts for the full length of the of 1.10 mg/m3 or over nine hours at an Part 90 miners from excessive exposures work shift. In this example, it is average of 0.98 mg/m3. In either case, who normally work nontraditional or assumed that the first step in the the MRE-equivalent exposure extended shifts. For example, a Part 90 conversion, multiplication by 1.38 for accumulated during the entire work miner working for ten hours at an equivalency with an MRE sampler, has shift is 8.8 mg-hr/m3, which exceeds the average concentration of 1.0 mg/m3 will already been performed. intended limit of 8 mg-hr/m3. Under the inhale and retain more respirable coal Suppose a Part 90 miner sample is proposed definition of ‘‘equivalent mine dust as a result of that specific collected over a 9-hour work shift. concentration’’ provided here, this will shift than a miner working for eight Suppose that the amount of dust be reflected by the fact that, when more hours at the same average concentration. accumulated during the shift is 0.77 mg. than 8 mg-hr/m3 (MRE-equivalent By comparing the adjusted If the concentration were not adjusted to exposure) is accumulated over the concentration to the concentration limit an 8-hour equivalent concentration, the course of the particular shift sampled, originally intended for Part 90 miners MRE-equivalent concentration would be the equivalent concentration will working an 8-hour shift, the same calculated as 0.98 mg/m3. Under the exceed 1.0 mg/m3, regardless of the cumulative exposure limit is applied on definition of ‘‘equivalent shift’s length. individual shifts for all Part 90 miners. concentration,’’ this quantity is then MSHA originally proposed a different, It should be noted that the ACGIH multiplied by 540/480, yielding an but mathematically equivalent, method approach of reducing the permissible equivalent concentration measurement of adjusting concentrations to an 8-hour concentration to compensate for the of 1.10 mg/m3. equivalent and solicited comments on extension of a shift beyond eight hours This adjustment does not change the the proposed method. The proposed is similar in its effect to the approach daily limit on the accumulated dose of method would have defined taken here of adjusting the equivalent respirable coal mine dust as intended by ‘‘concentration’’ to mean what is here concentration upwards and comparing the existing exposure limit for coal mine defined as ‘‘equivalent concentration.’’ it to a fixed limit. MSHA makes similar dust. Since the current limit was based Instead of making an explicit adjustments for extended work shifts in on an assumption that exposure occurs adjustment to the concentration, using the enforcement of exposure limits in over an 8-hour shift, it corresponds to a the factor of t/480 as in the present metal and nonmetal mines under 30 daily cumulative dose of respirable coal definition, the earlier proposed rule CFR 56.5001 and 57.5001. Taking into mine dust of 8 × 1.0 = 8 mg-hr/m3 as would have substituted 480 for the account the reduced recovery time that measured by the MRE instrument. The actual sampling time in the definition of results from an extended work shift

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would have led to a numerically greater interrupt work being performed by a percentage) for reducing the applicable and more protective adjustment, but this Part 90 miner in his or her regular work dust standard below 1.0 mg/m3 in would also have introduced additional assignment, necessitating the proportion to the percentage of quartz complexities in the calculation of assignment of the Part 90 miner to when the quartz content of respirable equivalent concentration measurements. another job temporarily. For example, if dust in the mine atmosphere exceeds 10 The Secretary believes that the method the Part 90 miner is regularly assigned percent, instead of 5 percent as chosen strikes a reasonable balance as a shuttle car operator in a MMU and contained in existing § 90.101. Since the between no adjustment at all, and a far the continuous mining machine breaks maximum standard for a Part 90 miner more complex adjustment that would down, that Part 90 miner could be is 1.0 mg/m3, the quartz content must attempt to model clearance, deposition, temporarily assigned to work in a exceed 10 percent to cause a reduction and retention mechanisms. different position and location in the in the applicable dust standard. mine. Consistent with MSHA’s The Agency would change the Mechanized Mining Unit (MMU) longstanding policy, such a change in procedures for determining the average The existing definition would be duties would not constitute a transfer quartz percentage used to calculate the modified by removing the reference to under Part 90 if the assignment does not applicable dust standard. Only the § 70.207(e) (Bimonthly sampling; last more than one shift. If such an results of MSHA samples would be used mechanized mining units), which will assignment lasts longer than one shift, to establish the applicable dust be deleted, and replaced with proposed the operator would be required to notify standard. The quartz results of the three § 70.206(d); and transfers the the district manager in writing. This most recent valid MSHA samples would requirements for identifying each MMU notice would list the temporary duties be averaged and the resultant percentage specified in existing §§ 70.207(f)(1) and and the reasons for the assignment. used to set the new applicable dust (f)(2), to revised § 70.2. Also, to demonstrate compliance with standard. However, if the Part 90 miner the applicable dust standard, the is already assigned to an area of the MRE operator would be required to collect mine under a reduced standard below ‘‘MRE’’ would mean Mining Research five valid samples from the newly 1.0 mg/m 3 when these revised Establishment of the National Coal assigned work position under proposed procedures become effective, a new Board, London, England. This is a new § 90.204(a)(2). The 1.0-mg/m3 standard applicable dust standard would be definition which has been included to remains in effect even if the operator is established by averaging the results of be consistent with revised § 70.2. unable to collect the required number of the first two MSHA samples taken after the effective date with the quartz Quartz samples because of the short duration of the temporary assignment. percentage associated with the The existing definition would be applicable dust standard in effect. If modified by specifying the analytical Section 90.3 Part 90 Option; Notice of fewer than two MSHA samples are method that MSHA has been using since Eligibility; Exercise of Option taken, the existing standard would 1983 to determine the quartz content of This section remains the same, with continue to remain in effect. respirable dust samples. The reason for the exception of paragraphs (d) and (e) Application of the revised procedures this modification is to standardize the which have been revised to reflect the will result in the setting of reduced analytical procedure, thereby enabling new address for mailing of the Exercise standards in a timely manner that (1) other certified laboratories to reproduce of Option Form or written request to re- more accurately represent the quartz quartz determinations made by MSHA. exercise the option to work in a low- percentage of respirable dust in the Also, to accommodate the adoption of dust area of the mine. environment of the Part 90 miner at the improved or other quartz analytical time of sampling; (2) reflect the techniques in the future, the definition Sections 90.100 Through 90.104 dynamics of the mining process and the of ‘‘quartz’’ has been expanded in the Dust Standards, Rights of Part 90 Miners changing geologic conditions of the proposed rule to provide MSHA the mine strata; and (3) continue to protect flexibility to use alternative analytical Section 90.100 Respirable Dust Part 90 miners over multiple shifts. techniques once these techniques have Standard When Quartz Is Not Present Under the proposed rule, MSHA been demonstrated to provide quartz MSHA is proposing no substantive would also report the quartz percentage measurements that are equivalent to changes in existing § 90.100, except for to the nearest tenth of a percent, instead those obtained under current analytical revising the section heading to of truncating the results to the nearest method. correspond with the heading of full percentage as has been the proposed § 70.100, which is identical, longstanding practice. While this Respirable Dust and removing the reference to § 90.206 change will have no impact on the The existing definition has been (Approved sampling devices; equivalent setting of applicable dust standards modified by transferring the concentrations) and replacing it with below 1.0 mg/m3, it will be more requirement regarding what constitutes § 90.2. The requirements contained in protective for other miners because it an approved sampling device to the revised § 90.2 are similar to the standard permits the setting of reduced standards proposed new definition of the term in existing § 90.206. The proposed rule at such levels as 1.1 mg/m3, 1.4 mg/m3, ‘‘approved sampling device’’ above. retains the applicable dust standard of 1.6 mg/m3, 1.8 mg/m3, and 1.9 mg/m3. 1.0 mg/m3. Setting these particular standards Transfer currently is not mathematically possible The existing definition has been Section 90.101 Respirable Dust using the above formula due to the modified by clarifying when a change in Standard When Quartz Is Present practice of truncating the average quartz work assignment would not constitute a The proposed rule would revise the percentage. Another change involves transfer under proposed Part 90. MSHA section heading to correspond with the removing the reference to § 90.206 recognizes that there may be heading of proposed § 70.101, which is (Approved sampling devices; equivalent circumstances which are beyond the identical. MSHA would retain the concentrations) and replacing it with control of the operator, such as existing formula (10 divided by the § 90.2. The requirements contained in equipment malfunction, that may concentration of quartz, expressed as a revised § 90.2 are similar to the standard

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in existing § 90.206. Also revised under shift or job involve maintaining after the option is exercised, paragraph the proposed rule is the example compliance with the applicable dust (a) prescribes: illustrating how a reduced standard is standard, then the provisions of The operator must compensate each Part established when respirable dust paragraph (a) apply and the miner is 90 miner at not less than the regular rate of associated with a Part 90 miner contains entitled to job and shift protections, pay received by that miner immediately more than 10 percent quartz under the unless these protections are waived in before exercising the option under § 90.3. proposed revised dust-standard setting accordance with this standard. MSHA Existing § 90.103(b) addresses procedures. will continue to carefully scrutinize any compensation protection for a Part 90 changes in job or shift assignments for Section 90.102 Transfer; Notice miner when there is a transfer of the a Part 90 miner to determine whether miner. It prescribes: MSHA is proposing no substantive paragraph (a) of § 90.102 applies Whenever a Part 90 miner is transferred, changes in existing § 90.102, except to because the change constitutes a transfer clarify in the regulatory text the the operator must compensate the miner at to meet the applicable dust standard not less than the regular rate of pay received application of the transfer provision in and, if not, to determine if the change by that miner immediately before the paragraph (a) when a Part 90 miner is in the Part 90 miner’s job or shift transfer. assigned to a different shift. To conform assignment was due in any part to As defined by proposed § 90.2, a with MSHA’s long-standing policy, the action which could be characterized as transfer, ‘‘by the operator’’ would proposed rule permits assigning a Part improper under the Mine Act. include, but is not limited to, an 90 miner to a different shift under operator-initiated job reassignment in certain circumstances without violating Section 90.103 Compensation order to meet the applicable dust paragraph (a) of § 90.102(a). Unlike the The proposed rule would redesignate standard or a reassignment due to a pay protection afforded Part 90 miners existing paragraphs (c) through (f) as (d) realignment or reduction in the by § 90.103(b) which would be applied through (g) and add new paragraph (c). workforce. However, a miner-initiated ‘‘[w]henever a Part 90 miner is Proposed new paragraph (c) clarifies job change does not necessarily transferred * * *’’ (emphasis added), MSHA’s longstanding policy of not constitute a transfer for purposes of the job and shift protections provided applying the Part 90 miner compensation under § 90.103(b). by existing § 90.102(a) apply ‘‘whenever compensation provisions of existing Accordingly, the compensation a Part 90 miner is transferred in order paragraphs (a) and (b) of this section in provision of § 90.103(b) may be to meet the respirable applicable dust situations where, after initial interpreted as not applicable to a job standard * * *’’ (emphasis added). The compliance with the applicable dust change initiated by a Part 90 miner. intent to limit the scope of job and shift standard by the operator, the Part 90 The above interpretations of protections under paragraph (a) of this miner on his or her own initiative §§ 90.103(a) and (b) are also consistent section and the purpose of doing so applies for and accepts another job in a with statutory language. Section were explained as follows in the work area with an average respirable 101(a)(7) of the Mine Act addresses preamble to the existing Part 90 rules: dust concentration at or below 1.0 mg/ several specific matters relative to The operator may transfer a Part 90 miner m3.12 Under these circumstances, the mandatory health and safety standards without regard to these job and shift miner has not waived Part 90 status.13 promulgated by MSHA and in relevant limitations if the respirable dust Therefore, the issue being addressed by part provides: concentrations in the position of the Part 90 proposed paragraph (c) is how the Part miner complies with the applicable dust * * * Where appropriate, the mandatory standard, but circumstances require changes 90 wage provisions of existing standard shall provide that where a in job assignments at the mine. Reductions in paragraphs (a) and (b), which would be determination is made that a miner may workforce or changes in operational methods retained under the proposed rule, suffer material impairment of health or at the mine may be the most likely situations should be interpreted when a Part 90 functional capacity by reason of exposure to which would affect job assignments. Any miner initiates and accepts a job change. the hazard covered by such mandatory such transferred Part 90 miner would still be For the following reasons, MSHA standard, that miner shall be removed from protected by all other provisions under this such exposure and reassigned. Any miner believes that the compensations transferred as a result of such exposure shall part. (45 FR 80761) provisions of Part 90 may be read to In instances where operators need to continue to receive compensation for such reassign employees to accommodate provide no compensation protection for work at no less than the regular rate of pay unforseen situations and unexpected mine a Part 90 miner under these for miners in the classification such miner and market conditions, MSHA believes that circumstances. held immediately prior to his transfer. * * * some leeway should be provided to assist Existing § 90.103, which would be (emphasis supplied) operators in placement of a Part 90 miner. (45 retained in its entirety under the Thus, section 101(a)(7) supports an FR 80766) proposed rule, protects a miner from interpretation that the compensation These explanations show that MSHA any immediate reduction in hourly provisions of §§ 90.103(a) and (b) do not did not intend the provisions of existing wage as a result of exercising the option. apply where a Part 90 miner initiates a paragraph (a) to apply when a Part 90 Where no transfer of the miner occurs job change for reasons of job preference miner is working in a position that and that § 90.103(b) is limited to job meets the applicable dust standard and, 12 At mines where a job bidding procedure is in changes which are ‘‘a result of’’ for legitimate business reasons, the effect, use of the bidding procedure is not exposure to respirable coal mine dust. operator assigns the miner to a new job dispositive of whether a job change is initiated by Accordingly when there is a Part 90 or shift.11 On the other hand, when the the miner. The job bidding procedure is applicable miner-initiated job change, the to all job changes, including operator-initiated reasons for changing a Part 90 miner’s changes. Thus, factors relating to the intent and compensation provisions of §§ 90.103(a) actions of the miner and the operator must be and (b) would not be applicable in the 11 As noted above, however, the other protections evaluated. Part 90 miner’s new job and the miner provided by Part 90 would apply. For example, on 13 Existing §§ 90.104(a)(2) and (3) provide for would be paid whatever the new job the new shift or in the new job there could be no waiver of Part 90 miner status when the miner reduction in the miner’s pay and compliance would applies for and accepts or retains a position known usually pays. Thus, for example: A have to be maintained with the applicable dust by the miner to exceed the applicable dust miner exercised the Part 90 option when standard and the sampling requirements. standard. his or her job paid $10 per hour. If the

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operator keeps the Part 90 miner in the condition, the proposed rule would the sampling device would be operated same work position because compliance remove existing paragraph (d). The portal-to-portal and remain operational with the applicable dust standard is proposed rule would also revise and during the entire shift or for 8 hours, maintained, or if the operator transfers redesignate existing paragraphs (b) as whichever time is less. The Agency the miner to a new work position to (c), (c) as (f), and (e) as (d), revise solicits comments on the duration of achieve compliance, then the Part 90 paragraph (a), and add new paragraph MSHA sampling under the proposed miner cannot be paid less than the $10 (b). rule. per hour received immediately before Revised paragraph (a) specifies the Unless otherwise directed by the exercising the option. If, then, the miner purpose of operator sampling under this district manager, the respirable dust was to initiate and accept a change in proposed rule. While MSHA would be samples will continue to be collected by work assignment to a job which paid assuming responsibility for most of the placing the sampling device on the Part $8.50 per hour, no pay protection would sampling currently being carried out by 90 miner; on the piece of equipment accompany the part 90 miner to the new the operator, revised paragraph (a) which the Part 90 miner operates within position and the miner would receive would continue to require operators to 36 inches of the normal working $8.50 per hour. conduct sampling to verify that the position; or at a location that represents The remainder of Part 90 provisions, working environment of a new or the maximum concentration of dust to however, would continue to apply to transferred Part 90 miner complies with which the Part 90 miner is exposed. the Part 90 miner in the new work §§ 90.100 or 90.101 as required by Under redesignated paragraph (f), not position. As noted earlier, a miner- existing § 90.207, which has been only would the operator be required to initiated job change to a position which redesignated as § 90.204. Also, to submit the date but also the time when is at or below the applicable dust minimize repetition and maintain sampling required by this part would standard for a Part 90 miner does not consistency with virtually identical begin when requested by the district constitute a waiver of Part 90 rights. provisions in proposed amendments to manager. This is necessary since Thus, in the new job the miner retains Part 70, paragraph (a) would be operators may choose to sample any Part 90 status and all other requirements modified by removing the reference to shift on the date provided to MSHA. of Part 90 continue in effect, including Part 74 approval (Coal Mine Dust Knowing the time of the scheduled the operator’s obligations to Personal Sampler Units), and replacing sampling will enable MSHA to monitor continuously maintain the applicable it with ‘‘approved sampling device,’’ as operator sampling on a case-by-case dust standard and to give MSHA notice defined under revised § 90.2. basis to verify compliance with both the whenever the miner’s work assignment Proposed new paragraph (b) would operating conditions and sampling changes last longer than one shift. retain the requirements in existing requirements of this part. For purposes of consistency, §§ 90.202(a) and (b) that sampling Finally, the requirement that redesignated paragraphs (e) and (g) have required under this part be conducted operators take corrective action during been revised to read as follows: ‘‘*** by an individual certified by MSHA and the time for abatement fixed in a under paragraphs (a), (b) and (d) * * *’’ the manner by which a person would be citation for violation of §§ 90.100 or and ‘‘* * * in paragraphs (a), (b), (d), certified. Therefore, existing § 90.202(a), 90.101 specified in existing paragraph and (e) * * *,’’ respectively. (b), and (c) would be removed. (d) of § 90.201 would be transferred to Since the objective of operator proposed § 90.207(b)(2). The Section 90.104 Waiver of Rights; Re- sampling proposed under this part is to requirement that the operator sample exercise of Option verify that the assigned position of a the affected Part 90 miner until five The proposed rule would retain the new or transferred Part 90 miner valid samples are taken under existing existing provisions of § 90.104, with complies with the applicable dust paragraph (d) would be removed since some minor revisions for purposes of standard, the sampling device would MSHA is proposing to revoke operator simplification. In paragraph (a)(2), continue to be worn by each Part 90 sampling requirements under existing ‘‘exceeds the applicable dust standard’’ miner as required by existing § 90.208. § 90.201(b). However, under would replace the statement beginning Section 90.202 Approved Sampling redesignated paragraph (c), the with ‘‘* * * has an average respirable Devices; Maintenance and Calibration dust concentration * * *’’ Paragraph requirement that sampling devices (a)(3) would be revised by replacing the ‘‘remain operational during the entire In an effort to consolidate the statement beginning with ‘‘*** shift or for 8 hours, whichever time is requirements that address maintenance average respirable dust concentration less’’ would be removed. Instead, the and calibration procedures of approved ***’’ with ‘‘existing work position sampling device would be operated sampling devices, MSHA is proposing exceeds the applicable dust standard.’’ portal-to-portal and be operational in § 90.202(a) through (e) to retain the Lastly, the section heading for § 90.3(e) during the Part 90 miner’s entire work requirements in existing § 90.203(a) and has been removed from existing shift, regardless of the number of hours (b) and § 90.204(a) through (e), with paragraphs (b) and (c). worked, to ensure that the sampled Part minor changes. These standards require 90 miner is not personally overexposed. the sampling device be maintained as Sections 90.201 through 90.207 That is, the sampling device would be approved and calibrated only by a Sampling Procedures turned ‘‘ON’’ when the Part 90 miner certified person in accordance with enters the mine and remain operational MSHA Informational Report IR 1240 Section 90.201 Sampling; General while traveling to the assigned work (1996). The process of certifying an Requirements position, while performing normal work individual for maintenance and MSHA is proposing to modify the duties, and while traveling back to the calibration would remain unchanged. It general requirements for operator mine entrance, at which time the device would continue to require an individual sampling of new or transferred Part 90 would be turned ‘‘OFF.’’ It should be to successfully complete the applicable miners under existing § 90.201. Since pointed out that the duration of MSHA MSHA examination. Scheduling MSHA would be responsible for sample collection will continue to be information for MSHA training courses collecting samples to determine if an limited to 480 minutes as has been the and examinations would be available operator has abated a noncompliant longstanding practice. Simply stated, from MSHA District Offices.

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These standards require approved made, proposed paragraph (c) would proposed § 90.204 would constitute a sampling devices to be calibrated at a require all notations regarding failure to violation. Consequently, it would be flowrate of 2.0 liters of air per minute. maintain proper flowrate or other events advantageous to collect and submit the They also establish the flowrate and occurring during sampling that may samples required early during the testing and examination requirements impact the validity of the sample to be specified 15-day period. for approved sampling devices. Careful made on the back of the dust data card. While the proposed rule continues the examination and testing of sampling operator requirement to collect five Section 90.204 Respirable Dust devices would continue to be required valid samples, the results would no Sampling immediately prior to the start of a shift longer be averaged to determine during which samples would be This section, previously titled whether the applicable dust standard is collected for purposes of this proposed ‘‘Compliance sampling’’ under existing being continuously maintained. Instead, rule. This would include testing the § 90.207, would be modified under the consistent with proposed § 72.500 of battery voltage and examining all proposed rule and redesignated as this title, each of the five valid sample external components of the sampling § 90.204. Since the operator sampling will be compared to the applicable dust devices to be used. Any necessary requirement under existing § 90.208(a) standard individually. Under this external maintenance to assure the would be revoked, the proposed rule evaluation procedure, if all five samples sampling devices are clean and in would remove existing paragraph (b) are at or below the applicable dust proper working condition should be and redesignate paragraph (a)(3) as standard, MSHA is confident that the performed at this time by a certified (a)(2). The proposed rule would also Part 90 miner is being placed in an person. Temporary certification of add new paragraphs (b) and (c). atmosphere which actually meets the persons provided under existing Consistent with the proposed operator standard. However, if any valid sample § 90.203(c) would not be retained under sampling requirements contained in exceeds the applicable dust standard by the proposal. revised Part 70, MSHA would also be at least 0.1 mg/m3, the operator would assuming responsibility for all sampling be required to immediately take Section 90.203 Approved Sampling for compliance and abatement purposes. corrective action and take an additional Devices; Operation; Air Flowrate This sampling is currently being carried five valid samples from the environment Proposed §§ 90.203(a) through (c) out by the operator under existing of the affected Part 90 miner within 15 retains the operation and flowrate §§ 90.201(d) and 90.208(a). However, days following receipt of notification requirements for approved sampling the proposed rule would continue to from MSHA. The proposed rule permits devices in existing §§ 90.205(a) through retain the existing provisions of the operator to meet the applicable dust (d), with minor changes. Since MSHA § 90.207, with major changes under standard in either of two ways: (1) By has defined an approved sampling redesignated § 90.204. The objective of implementing control measures to lower device in revised § 90.2 to mean a this provision is to maintain operator the dust concentration in the Part 90 device approved in accordance with responsibility for verifying the miners’s existing assigned position; or part 74 of this title, proposed paragraph suitability of the atmosphere in the (2) by transferring the Part 90 miner to (a) excludes reference to part 74. position to which a new or transferred another area of the mine that meets the Similarly, for purposes of Part 90 miner would be assigned to standard. simplification, reference to § 90.202 work. This would assure that any new Since these samples are used to verify (Certified person; sampling) would be or existing Part 90 miner would be the suitability of the assigned work removed and, wherever used, it would placed in an atmosphere which meets position, no operator samples will be be replaced by certified person as the applicable dust standard. used to make determinations as to defined in revised § 90.2. Therefore, to determine if a new Part compliance with the applicable dust MSHA believes that the two on-shift 90 miner is working in an area of the standard under §§ 90.100 or 90.101 of examinations of sampling devices under mine where the dust concentration this part. Therefore, if any of the proposed paragraphs (b)(1) and (b)(2), during each shift does not exceed 1.0 additional samples collected under which are identical to the examinations mg/m3, the operator would be required proposed paragraph (b)(2) of this section required under existing § 90.205(b) and to collect five valid samples within 15 exceed the applicable dust standard by (c), continue to be an important part of calendar days after being notified by at least 0.1 mg/m3, the operator would a reasonable and prudent sampling MSHA that a Part 90 miner is employed be cited for failure to take corrective program. The first examination would at the mine in accordance with action under proposed paragraph (c) of be made by a certified person during the proposed § 90.201. The operator would this section. second hour after the sampling devices also be required to collect five valid are placed in operation. This samples under proposed paragraph Section 90.205 Respirable Dust examination would assure that each (a)(2) to verify the suitability of a work Samples; Transmission by Operator sampling device is operating properly position to which a Part 90 miner was MSHA is proposing no substantive and at the proper flowrate. If the proper transferred under § 90.102. Valid changes to existing § 90.209, except for flowrate is not maintained, necessary samples are defined in the proposed removing reference to § 90.202 (Certified adjustments in the flowrate would be rule as respirable dust samples collected person; sampling) from existing made at this time by the person certified and submitted as required by this part, paragraph (c) to eliminate repetition to collect samples. The second and not voided by MSHA. Voided or since revised § 90.201 specifies that all examination would be made during the invalid samples would not satisfy the sampling required under this part must last hour of operation of the sampling sampling requirements and operators be conducted by a certified person, and devices. If the proper flowrate is not would be required to collect and submit redesignating it as § 90.205. Existing maintained, the certified person is additional samples. In addition, all paragraph § 90.209(e) would be removed required to make a notation on the dust samples required by this part would be since all samples submitted by the data card for that sample stating that the required to be taken while the Part 90 operator under this part would be proper flowrate was not maintained. miner is performing normal work processed by MSHA. The proposed rule, Because it is unclear where on the dust duties. Failure to take the required like the existing rule, would require data card such a notation should be number of valid samples under each Part 90 miner sample collected by

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the operator to be transmitted to MSHA on samples submitted by the operator, Feb. 3, 1998 (63 FR 5687), entitled ‘‘Coal within 24 hours after the end of the except for paragraph (a)(4) which would Mine Respirable Dust Standard sampling shift in containers provided by be removed since averaging of multiple Noncompliance Determinations.’’ As the manufacturer of the filter cassette. valid samples would no longer be explained in that notice and in The need to verify the suitability of the permitted under the proposed rule. Appendix C of the current notice of Part 90 miner’s assigned work position Also, since MSHA would undertake proposed rulemaking, each CTV was in the shortest possible time requires sampling for compliance purposes, calculated so that citations would be that samples be sent promptly to MSHA currently performed by the operator issued only when a single-shift for analysis. under existing § 90.208, the results of measurement demonstrates Each transmitted sample must be MSHA samples would also be reported noncompliance at least at a 95 percent accompanied by a properly completed to the operator. The data report would confidence level. dust data card. All dust data cards include the location within the mine The following example illustrates submitted must be signed by a person from which each Part 90 miner sample how MSHA would apply the CTVs to certified to collect samples and must was collected; the equivalent make noncompliance determinations. include that person’s certification concentration of respirable dust for each Suppose that a measurement of 1.27 mg/ number. By signing the card, that person valid sample; the occupation code, and m3 is obtained for a Part 90 miner under certifies that the sample was collected the reason for voiding any sample. In a 1.0-mg/m3 standard. Because the in accordance with the requirements of addition to providing data on individual measurement meets or exceeds the CTV this part. samples, under proposed paragraph (7), of 1.26 mg/m3 (the citation value for a To maintain program integrity, all the Agency would also furnish 1.0-mg/m3 standard), a citation would samples transmitted by an operator information on the dust control be issued for exceeding the applicable would be considered by this proposed measures that were being used in the dust standard on the shift sampled. The rule to fulfill the sampling requirements work position of the sampled Part 90 Part 90 miner’s work position would be of this part. However, if operators wish miner by providing a copy of completed identified in the narrative of the citation to collect samples for other purposes, MSHA Form 2000–86 (Revised). as the affected working environment. they would need to notify the district Paragraph (b) of the proposed rule MSHA believes that, because of the manager in writing or by electronic retains the existing provision of large ‘‘margin of error’’ separating each means prior to the intended sampling requiring the operator to provide a copy CTV from the corresponding applicable shift and identify each filter cassette to of the sample data report to the affected dust standard, use of the CTV table be used by its identification number. Part 90 miner but, for privacy reasons, would provide ample protection against This prior notification is not required if prohibits the operator from posting the erroneous citations. This matter was non-approved sampling devices and original or a copy of this report on the fully explored in the analysis published filter cassettes are used by an operator mine bulletin report. in Appendix C of the February 3, 1998 for non-regulatory purposes. notice (63 FR 5703–5709). That analysis Section 90.207 Violation of Respirable showed that for exceptionally well- Section 90.206 Respirable Dust Dust Standard; Issuance of Citation; controlled environments, the probability Samples; Report to Operator and Part 90 Action Required by Operator; and that any given citation is erroneous will Miners Termination of Citation be substantially less than 5 percent. The Under the proposed rule, reporting Proposed § 90.207 is a new analysis also showed that this provisions of existing § 90.210 would be requirement that addresses the probability is even smaller in revised and redesignated as § 90.206. It circumstances under which MSHA environments that are not well specifies the type of sampling data and would issue a citation for violation of controlled. Therefore, citations issued in other related information the operator the applicable dust standard. It also accordance with the CTV table would be would be provided by MSHA on each establishes the specific actions that an much more likely the result of an Part 90 miner sampled by the operator operator would be required to take excessive dust concentration rather than or by MSHA. The Agency believes that within the time for abatement fixed in a measurement error. With regard to the the proposed reporting requirements are the citation. This proposed section also risk of erroneous failures to cite, MSHA in the best interest of the Part 90 miner. sets forth the conditions under which concluded that ‘‘the probability of These provisions promote miner MSHA would terminate such citations. erroneously failing to cite a case of awareness of the respirable dust Under proposed paragraph (a), the noncompliance at a given sampling conditions in the Part 90 miner’s operator would be cited for a violation location is less than 50 percent when working environment by making of § 90.100 or § 90.101 when the the applicable dust standard is exceeded available current information on the equivalent concentration of a valid Part on a significant proportion of shifts at results of all sampling-related activities. 90 miner sample collected by MSHA that location’’ (63 FR 5709 above). This is consistent with the statutory meets or exceeds the citation threshold MSHA has also concluded that using intent that miners play a role in value (CTV) listed in Table 70–2 of this single-shift measurements for preventing unhealthy conditions and title that corresponds to the applicable noncompliance determinations in practices where they work. This dust standard in effect. As discussed in accordance with the CTV table neither approach is also consistent with the section III.A.4. of the preamble, these raises or lowers the applicable dust recommendations of the Advisory measurements will be based on single- standard. Operators would continue to Committee regarding miner shift samples collected with approved be required under § 90.100 or § 90.101 participation in the sampling process. sampling devices that will be operated to continuously maintain compliance In proposed paragraph (a), the phrase portal-to-portal. The devices will remain with the applicable dust standard, not ‘‘The Secretary shall provide the operational during the entire shift or for merely at or below the CTV. operator’’ has been replaced with 8 hours, whichever time is less, as has As explained in the notice regarding ‘‘MSHA will provide.’’ Paragraphs (a)(1) been the long-standing practice. single-shift measurements of respirable through (6) of the proposed rule retains The CTVs and an explanation of how coal mine dust published elsewhere in the existing requirement regarding the they were derived was originally today’s Federal Register, the Mine Act types of data MSHA would be reporting published in Federal Register notice of requires MSHA to regulate exposures on

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each shift individually. Since MSHA the Part 90 miner to another work if compliance was achieved by does not track the number of shifts each position to achieve compliance. Instead, transferring the Part 90 miner to another miner works over a lifetime, MSHA the operator would be required to work position at the mine. must, as a matter of practical necessity, comply with § 90.102(c) by giving the Section 90.208 Status Change Reports protect miners by limiting their district manager written notice of the exposure on each shift. Furthermore, as transfer and the date on which it is to The proposed rule retains the existing explained in Sections VI and VII of the be effective before such a transfer would provision of § 90.220, which would be present notice, eliminating be allowed to occur. This is necessary redesignated as § 90.208, with some overexposures on individual shifts is so that MSHA could (1) update its revision. It would require the operator beneficial to miners’ health. For miners computerized management information to report in writing or by electronic working where there is a pattern of system to permit the processing of the means any change in status of a Part 90 recurrent overexposures on individual five operator samples taken from the miner that affects sampling to a shifts, eliminating such overexposures Part 90 miner’s new work position as designated MSHA District office within is expected, over a working lifetime, to required by proposed paragraph (b)(3) of three working days after a status change significantly reduce the risk of this section and (2) schedule and has occurred. Knowing the status of pneumoconiosis. Therefore, the conduct follow-up sampling for every Part 90 miner will enable the Secretary has concluded that equivalent abatement purposes. Agency to carry out its sampling and dust concentrations should be After complying with § 90.102(c), the monitoring of operator sampling maintained at or below the applicable operator would be required to sample activities in the most efficient and dust standard on each and every shift. the affected Part 90 miner until five responsible manner. The operator If an operator is cited for a violation valid samples were collected and would be in violation of § 90.208 when of the applicable dust standard, submitted within the abatement period the operator fails to comply with the proposed paragraphs (b)(1), (b)(2), fixed in the citation. As discussed under sampling requirements of this part or (b)(2)(i) and (b)(2)(ii) would require the proposed § 90.204, the purpose for MSHA was unable to carry out its operator to take specific actions within taking these samples is to verify the sampling of a particular Part 90 miner the time for abatement fixed in the suitability of the particular working for compliance purposes due to the citation. First, in order to provide environment in which the Part 90 miner unavailability of the Part 90 miner that immediate health protection, the was placed. Therefore, MSHA does not was not reported by the operator as operator would be required to make intend to take enforcement action based required. available approved respiratory on the results of operator samples, only Sections 90.300 and 90.301 equipment to the affected Part 90 miner for failure to take corrective action that complies with existing § 70.300. under proposed paragraph (b)(2) of this Respirable Dust Control Plans The operator would then determine the section. Under this proposed rule, only Section 90.300 Respirable Dust cause of the excessive dust valid samples collected by MSHA Control Plan; Filing Requirements; concentration and take appropriate would be used to abate a violation of Contents corrective action to gain compliance. As § 90.100 or § 90.101. under the current Part 90 rule, the In order to determine if the operator The proposed rule retains the existing proposed rule would permit the abated the excessive dust violation, provisions of § 90.300, which sets forth operator to achieve compliance in either MSHA would collect one valid sample in detail when a dust control plan must of two ways: (1) By implementing from the affected Part 90 miner’s be filed and the information that the control measures to reduce the dust position while he or she is performing operator must include in the plan. levels in the Part 90 miner’s work normal work duties. As discussed under Although the language of part of position; or (2) by transferring the § 90.201, the duration of MSHA sample paragraph (a) of the proposed rule affected Part 90 miner to work in collection would continue to be limited differs from that of the existing section, another location at the mine where the to 480 minutes as has been the long- the specific requirements are essentially concentration of respirable dust does standing practice. If the MSHA the same. This change was made in the not exceed the standard. Any Part 90 abatement sample exceeds the proposed rule for clarity and miner who is transferred to another applicable dust standard but is less than consistency with virtually identical position would continue to remain a the appropriate CTV, MSHA may provisions in existing § 71.300 of this Part 90 miner at the new position, even sample additional shifts to confirm the title. if the job is at a surface mine. adequacy of the operator’s corrective If an operator abates the violation by If the operator chooses to lower dust action. MSHA would consider a implementing control measures that levels in the Part 90 miner’s assigned violation of the applicable dust standard lower the dust in the Part 90 miner’s work position, proposed paragraph to be abated and terminate the citation work position, proposed paragraph (a) (b)(2)(i) would require the operator to when the result of a valid MSHA sample requires the operator to prepare a notify the district manager in writing or is at or below the applicable dust respirable dust control plan applicable by electronic means within 24 hours standard. The subsequent action form to the Part 90 miner in the position after implementing the control would clearly and fully describe the identified in the citation. Each plan measures. Since MSHA would be action taken to abate the violation. If the must be designed to continuously assuming responsibility for compliance violation was abated by reducing the maintain the respirable dust level, in the and abatement sampling under this dust levels in the Part 90 miner’s work Part 90 miner’s assigned work position, proposed rule, this notice would enable position, proposed paragraph (c)(1) at or below the applicable dust MSHA to schedule and conduct follow- would require the operator to submit a standard. This plan must be submitted up sampling to determine whether the respirable dust control plan to the to the district manager for approval operator’s corrective action(s) was district manager for approval in within 15 days after the citation is effective to gain compliance. accordance with § 90.300 of this part, terminated. A copy of the approved plan The requirement of proposed which has been retained under this must be provided to the affected Part 90 paragraph (b)(2(i) would not apply if the proposed rule. A dust control plan miner. However, the operator is corrective action involved transferring would not be required to be submitted prohibited from posting the original or

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a copy of the plan on the mine bulletin fibrosis can cause significant loss of prevalence of simple CWP and PMF board. lung function and give rise to among these coal miners. Through this If, on the other hand, the operator respiratory symptoms (e.g., special program, MSHA tried to abates a violation of the applicable dust breathlessness, wheezing), and lead to minimize obstacles that may prevent standard by transferring the part 90 disability and premature mortality. some miners from participating in miner to another position at the mine, Overall, coal miners are at risk of respiratory diagnostic procedures. Nine the operator is not required to submit a increased morbidity and premature geographical groups of miners were dust control plan to the district manager mortality arising from all of the chronic encouraged to participate in this x-ray for approval. diseases associated with coal mine dust program that was independent of the As under existing paragraph (b), the exposure. CWXSP (MSHA, Internal Chart, 1999). operator would be required to include Elimination or reduction of coal mine The study groups included eight active details on the control measures that dust exposure is the only effective way surface coal mining communities in were implemented to reduce the dust to prevent or minimize occupational Pennsylvania, Kentucky and West and abate the violation, as well as any lung disease among coal miners. other provisions required by the district However, routine screening affords the Virginia, as well as Poteau, Oklahoma manager. The plan must also include potential to prevent further and Gillette, Wyoming. A ninth group the specific time, place and manner that development of disease among those, included underground miners in the control measures would be used. who despite dust control measures, still Kentucky. The process was designed to Failure to do so would constitute a develop CWP. Pursuant to 42 CFR part encourage miner participation by violation of this section. 37, the National Institute for providing for a greater degree of Occupational Safety and Health anonymity than may be available under Section 90.301 Respirable Dust (NIOSH) operates a program for the NIOSH x-ray program. Across the Control Plan; Approval by District underground coal miners designed to eight surface groups surveyed, the Manager; Copy to Part 90 Miner detect early CWP. This screening prevalence rate of CWP among The proposed rule retains the existing program for CWP is termed the Coal participants was 5.6% (130/2,305). The provisions of § 90.301, which specifies Workers’ X-ray Surveillance Program CWP prevalence rate among the the criteria MSHA would use to approve (CWXSP). participating underground Kentucky the operator’s dust control plan. Since In 1998, MSHA estimated that there miners was 9.2% (37/404). MSHA would assume sampling of Part were approximately 45,000 Due to the different outreach 90 miners for compliance purposes, the underground coal miners and 39,000 initiatives number and type of following phrase was inserted towards surface coal miners (Mattos, 1999). A participants in these various subgroups, the end of paragraph (a): * * * ‘‘the small percentage of the mining involved results of MSHA sampling and.’’ Also, anthracite coal, the highest rank coal, relative to the population of today’s coal the proposed rule would add the word while most involved bituminous coal miners, these data may not be ‘‘continuously’’ to paragraph (a)(1) for which is a medium rank coal. representative of the overall prevalence consistency with § 90.300(a), and There are complementary data of CWP among today’s coal miners. replace the phrase ‘‘MSHA may take sources, described below, which The Secretary of Labor’s Advisory respirable dust samples to determine provide estimates of the prevalence of Committee on the Elimination of occupational respiratory disease among whether’’ in paragraph (b) with ‘‘MSHA Pneumoconiosis Among Coal Workers coal miners. Together these data will monitor the continued effectiveness (Dust Advisory Committee, 1996) demonstrate the progress over the last of’’ to reflect MSHA’s assumption of recommended that the CWXSP for sampling for compliance purposes. thirty years in the reduction of occupational respiratory disease among pneumoconiosis include surface coal V. Health Effects coal miners, as well as the need for miners and independent contractors and further action to reduce occupational that it increase underground coal A. Introduction lung disease. miners’ participation to at least 85 For as long as miners have taken coal In accordance with 30 CFR part 50, percent. In response, MSHA and NIOSH from the ground, many have suffered both surface and underground coal mine implemented the Miners’ Choice Health respiratory problems due to their operators must report any known cases Screening Program (Miners’ Choice) in occupational exposures to respirable of occupational illnesses to MSHA. October 1999. The Miners’ Choice coal mine dust. Long-term retention of Under this requirement, mine operators program and Coal Workers’ X-Ray coal mine dust in the lung causes reported 224 cases of coal workers’ Surveillance Program (CWXSP) identify chronic lung diseases including coal pneumoconiosis in 1998 (Mattos, 1999). cases of simple and complicated workers’ pneumoconiosis (CWP), Of these, 138 cases occurred among coal pneumoconiosis, including coal silicosis, and chronic obstructive miners who worked underground, while workers’ pneumoconiosis and pulmonary disease (COPD) (e.g., chronic the remaining 86 cases occurred among silicosis—hereafter referred to as bronchitis, emphysema, and airways surface coal miners (Mattos, 1999). ‘‘CWP.’’ All of the Miners’’ Choice x- obstruction). Coal workers’ There were also 14 cases of silicosis, rays were processed using the same pneumoconiosis occurs in two stages: eight in underground mines, reported to procedures and criteria used in the simple and complicated MSHA in 1998 in accordance with 30 CWXSP in accordance with the pneumoconiosis. Simple CWP is CFR part 50 (Mattos, 1999). requirements of 42 CFR part 37. categorized into three levels of severity: In the 1990s, MSHA conducted a one- 1, 2, and 3. Miners with simple CWP, time medical screening and surveillance MSHA and NIOSH are conducting especially the more advanced program in various regions of the preliminary analyses of the first three categories, have a substantially country. This program was designed to years of the Miners’ Choice program. increased risk of developing help more coal miners, especially These data and analyses are being complicated pneumoconiosis (more surface coal miners, learn whether or handled, conducted, and reported typically known as progressive massive not they had CWP, and to provide a pursuant to the DOL’s and DHHS’s fibrosis (PMF)). Progressive massive more accurate estimate of the respective Information Quality

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Guidelines.14 Preliminary analyses of simple CWP category 1 and higher and epidemiological studies (e.g., these data are expected in Spring 2003. among the 8,210 miners who reported exposure estimation and tenure, x-ray The analyses will be made available to beginning work in underground coal readers, miner participation rates, and commenters through the MSHA and mines in 1973 or later. Miners who mines), the observed prevalence rates NIOSH Web sites, http://www.msha.gov reported other prior dusty work were from the surveillance studies confirm and http://www.cdc.gov/niosh/ excluded from the analysis. Althouse et the predicted prevalences from the homepage.html, respectively. al. (1998) also report an overall decline epidemiological studies. As of the end of fiscal year 2002, more in the CWP prevalence rates between The Mine Act of 1977 states: than 19,500 active coal miners from 20 1970 and 1995. While this result is ‘‘* * * in promulgating mandatory states voluntarily participated in encouraging, it also demonstrates that [health] standards which must adequately Miners’ Choice. The overall CWP pneumoconiosis is still occurring among assure on the basis of the best available prevalence rate for radiographic miners who have worked only under the evidence that no miner will suffer material categories of simple CWP categories 1, current applicable dust standard, and impairment of health or functional capacity 2, 3, and PMF combined was 2.8% (546/ for less than a full working lifetime. The even if such miner has regular exposure to 19,517) among miners examined in Althouse et al. (1998) study did not the hazards dealt with by such standards for Miners’ Choice during the 2000–2002 include estimates of exposure the period of his working life.’’ Mine Act 101(a)(6)(A). period. This is similar to the CWP concentration, but the prevalence rates prevalence rate of 2.25% for initial were shown to increase with tenure in Findings from the CWXSP indicate an participants in the Miners’ Choice mining (up to 22 years). In an earlier overall decline in the prevalence of Program reported in the 2000 NPRM (65 study, NIOSH compared the observed CWP from 11% in the 1970s to 2.8% in FR 42100). Among Miners’ Choice prevalences of CWP among miners who the sixth round of CWXSP (1992–1996) participants, the CWP prevalence rate participated in rounds 3 and 4 of the (NIOSH, Work-Related Lung Disease was higher among underground coal CWXSP with the predicted prevalences Surveillance Report, Table 2–11, 1999). miners at 3.8% (356/9,265), than it was from the epidemiological study by Even so, Miners’ Choice, CWXSP, and for surface coal miners, 1.8% (188/ Attfield and Morring (1992b) (NIOSH MSHA’s one-time medical surveillance 10,184). The CWP prevalence rate for 1995, Appendix L). That analysis programs in the 1990s consistently independent contractors was 2.9% (2/ included coal miners in the CWXSP show prevalence of CWP to be at levels 68). These findings show that CWP who had started work between 1969 and that cause concern. If patterns of continues to occur among coal miners 1986 and who had worked 10 or more overexposure to respirable coal mine working under the current program to years; exposure concentrations were dust remain unchanged for these coal control respirable coal mine dust, estimated at or below the current miners, the prevalence of CWP would including quartz. standard. NIOSH found that the continue to increase, as their cumulative Coal miners with simple CWP, observed and predicted prevalences exposure to respirable coal mine dust particularly the advanced categories, are were similar, thus supporting the increases over their coal mining careers. much more likely to develop life- validity of the predictions from that Both MSHA and NIOSH (Re-opening threatening complicated CWP (i.e., epidemiological study. The findings notice for the Determination of progressive massive fibrosis, or PMF), from the Attfield and Morring (1992b) Respirable Coal Mine Dust published than those with category 0 (ILO study are consistent with the findings elsewhere in today’s Federal Register; profusion categories of 0/0 or 0/1) from other epidemiological studies, Criteria Document, 1995) find the (Cochrane, 1962; Hurley et al., 1987; including Attfield and Seixas (1995). current program for preventing Hurley and Jacobsen, 1986; Hurley and Comparing the effect of miners’ overexposures to respirable coal mine Maclaren, 1987; Jacobsen, et al., 1971; exposures received either before or after dust is not sufficient to adequately McLintock, et al., 1971; and Morfeld, et prevent overexposures to respirable coal al., 1992). In addition, epidemiological 1970, Attfield and Seixas (1995) found that exposure during both time periods mine dust and protect the health of the studies have shown that even among coal miners. miners with category 0, those with a contributed to the development of CWP profusion category suggesting pneumoconiosis. B. Hazard Identification In addition, the epidemiological pneumoconiosis (i.e., 0/1) are at 1. Agent: Coal increased risk of developing PMF studies are relevant to predicting the compared to miners with a CWP risks of occupational respiratory Coal is a fossil fuel derived from profusion category of 0/0 (Hodous and diseases among miners working today partial degradation of vegetation. Attfield, 1990 and McLintock, et al., because the cumulative exposures of Through its combustion, energy is 1971). miners working at the current standard produced which makes coal a valuable Several studies provide consistent of 2.0 mg/m3 for a full 45-year working global commodity. It has been estimated information relevant to this issue. In a lifetime are well within the range of the that over one-third of the world uses study of miners who participated in data examined in these studies (Attfield energy provided by coal (Manahan, round six (1990–1995) of the Coal and Seixas, 1995; Attfield and Morring 1994). Approximately 1,800 Workers’ X-Ray Surveillance Program 1992a,b; Attfield and Hodous, 1992; underground and surface coal mines are (CWXSP), Althouse et al. (1998) found Seixas et al. 1992, 1993). Thus, risk in operation in the United States an average prevalence rate of 2.2% for estimates based on these studies do not annually producing slightly over a require extrapolation beyond the range billion short tons of coal (Mattos, 1999). 14 Specifically, the information is maintained in of the data. These epidemiological Coal may be classified on the basis of a confidential manner, all methodologies for data studies included quantitative estimates its type, grade, and rank. The type of processing are transparent, and all available records were included. This information is reliable and of miners’ exposures to respirable coal coal is based upon the plant material accurate, and is presented in a clear and objective mine dust and found statistically (e.g., lignin, cellulose) from which it manner, as required by the Department of Labor’s significant relationships between originated. The grade of coal refers to its Information Quality Guidelines and the Department cumulative exposure and prevalence of chemical purity. Although coal is of Health and Human Services’ Guidelines for Ensuring the Quality of Information Disseminated pneumoconiosis or COPD. Despite largely carbon, it may also contain other to the Public. several differences in the surveillance elements such as hydrogen, oxygen,

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nitrogen, and sulfur. ‘‘Hard’’ coal refers According to the British National Coal alveolar region for long periods of time, to coal with a higher carbon content Board, ‘‘particles as large as 20 microns despite the fact that pulmonary (i.e., 90–95%) than ‘‘soft’’ coal (i.e., 65– (i.e., micrometers (µm)) mean diameter clearance is not impaired. It is the 75%). Coal rank relates to geologic age, may be deposited, although most ‘lung pulmonary retention of coal mine dust indexed by its fixed carbon content, dust’ lies in the range below 10 microns which may be the impetus for down to 65%, and then by its heating diameters’’ (Goddard, et al., 1973). respiratory disease. value. Volatile matter varies inversely Particles less than 10 µm in size easily It is also important to note that silica with the fixed carbon value. The most move throughout the respiratory tract. may be present in the coal seam, within commonly described coal ranks include As particle size decreases from 10 to 5 dirt bands in the coal seam, and in rock lignite (low rank), bituminous coal µm, however, there is greater above and below coal seams. Of the (medium rank), and anthracite (high penetration into the mid and lower silica found in coal mines, quartz is the rank) (Manahan, 1994). regions of the lung. Particles that are form which is found. Thus, quartz may µ become airborne during coal removal 2. Physical State: Coal Mine Dust approximately 1–2 m are the most likely to be deposited in the lung operations (Manahan, 1994). Miners Aerosols are a suspension of solid or (American Conference of Governmental may inhale dust that is a mixture of liquid particles in air (Mercer, 1973); Industrial Hygienists, 1999; Mercer, quartz and coal. MSHA is concerned they may be dusts which are solid 1973). During mouth breathing, there with the inhalation of quartz since it particles suspended in the air. Coal dust may be a slight upward shift in the may be deposited in the lungs of miners may be freshly generated or may be re- particle deposition curve such that 2–3 and produce silicosis. This is a suspended from surfaces on which it is µm-sized particles are the most likely to restrictive lung disease which is deposited in mines. As discussed below, be deposited in the respiratory tract characterized by a stiffening of the lungs coal mine dust may be inhaled by (Heyder, et al., 1986). Irrespective of (West, 1990; 1992). Silicosis has been miners, depending upon the particle nasal or mouth breathing, the potential seen in coal miners (e.g., surface miners, size. respiratory tract penetration of particles drillers, roofbolters) (Balaan, et al, Coal mine dust is a heterogenous less than 10 µm in size is important 1993). Silicosis may develop acutely mixture, signifying that all coal particles because particles in the respirable size (i.e., 6 months to 2 years) following do not have the same chemical range deposit in the deep lung where intense exposure to high levels of composition. The particles are clearance is much slower. respirable crystalline quartz. Silicosis influenced by the type, grade, and rank has also been observed in coal miners of coal from which they were generated For the purposes of this rule, following chronic exposure (i.e., 15 (Manahan, 1994). Irrespective of ‘‘respirable dust’’ is defined as dust years or more), but may be accelerated differences in coal characteristics, these collected with a sampling device (i.e., 7–10 years) in some cases (Balaan, dusts are water-insoluble, which is approved by the Secretary of Labor and et al, 1993). Silicosis is irreversible and important biologically and the Secretary of the Department of may lead to other illnesses and physiologically. Unlike soluble dusts Health and Human Services (DHHS) in premature mortality. People with which may readily pass into the accordance with 30 CFR Part 74 (Coal silicosis have increased risk of respiratory system and be cleared via Mine Dust Personal Sampler Units). In pulmonary tuberculosis infection and the circulatory system, insoluble dusts practice, the coal mine dust personal an increased risk of lung cancer may remain in the lungs for prolonged sampler unit has been used in the U.S. (Althouse, et al., 1995; International periods of time. Thus, a variety of The particles collected with an Agency for Research on Cancer, 1997). cellular responses may result that could approved sampler approximate that MSHA’s current standard of 2.0 mg/m3 eventually lead to lung disease. portion of the dust which may be for respirable coal dust requires that deposited in the lung (West, 1990; quartz levels in the respirable coal mine 3. Biological Respirable Coal Mine Dust 1992). It does not, however, indicate dust be 5% or lower. Otherwise, the 2.0 The principal route of occupational pulmonary retention (i.e., those mg/m3 respirable coal dust exposure exposure to respirable coal mine dust particles remaining in the lung). For limit does not apply and must be occurs via inhalation. As a miner those particles that are deposited in the adjusted downward for percentage of breathes, coal mine dust enters the nose lung, clearance mechanisms normally quartz. If respirable coal mine dust and/or mouth and may pass into the operate to assist in their removal. For contains more than 5% quartz, then the mid airways (e.g., bronchi, terminal example, within the thoracic (tracheal- following formula is applied (30 CFR bronchioles) and lower airways (e.g., bronchial) region of the lung, cilia (i.e., 70.101; 30 CFR 71.101). respiratory bronchioles, alveolar ducts). hairlike projections) line the airways 3 Coal mine dust has a size distribution and are covered by a thin layer of Respirable dust standard (mg/m )= { } that is estimated to range between 1 and mucus. They assist in particle clearance (10)/(% Quartz) 100 micrometers (µm) (1 µm = 10¥6 m) by beating rhythmically to project The intent of this formula, as (Silverman, et al., 1971). The size of coal particles toward the throat where they prescribed by the Secretary of Health, particles is critical in determining the may be swallowed, coughed, sneezed, or Education, and Welfare in 1971, level of the respiratory tract at which expectorated. This rhythmic beating whenever the respirable coal mine dust deposition and retention occur action is effective in removing particles in the mine atmosphere of the active (American Conference of Governmental fairly quickly (i.e., hours or days). workings contains more than five Industrial Hygienists, 1999; American Within the alveolar region of the lung, percent quartz, is to maintain miner Industrial Hygiene Association, 1997). particles may be engulfed by pulmonary exposures to quartz below 0.1 mg/m3 Particles that are greater than 10 µm macrophages. These large ‘‘wandering (100 µg/m3).15 are largely filtered in the nasal passages. cells’’ may remove particles via the However, it has long been known that blood or lymphatics. This process, 15 The applicable dust standard for intake air in some particles greater than 10 µm in unlike the movement of the cilia is § 70.100(b) and for miners who have exercised rights under Part 90 regulations in § 90.100 is 1.0 size, can be inhaled, and that some of much slower (i.e., months or years). mg/m3. Those standards are also lowered if the these particles can reach the alveoli of Thus, some particles, particularly those quartz content of the respirable coal mine dust the lungs (Lippman and Albert, 1969). that are insoluble, may remain in the Continued

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C. Health-Related Effects of Respirable pattern of lung function impairment The term, chronic obstructive Coal Mine Dust reported by Collins et al. (1988) was pulmonary disease (COPD), refers to consistent with that typically associated three disease processes that are often 1. Description of Major Health Effects with dust exposure in coal miners, and difficult to properly diagnose and Consistently, epidemiological studies was distinctly different from the pattern differentiate: Chronic bronchitis, have demonstrated miners to be at risk observed among smokers. emphysema, and asthma (Coggon and of developing respiratory symptoms, a Because simple CWP represents an Taylor, 1998; Garshick, et al., 1996; loss of lung function, and lung disease early stage of a progressive disease, West, 1990; 1992). As indicated by as a consequence of occupational miners who have had a chest x-ray several studies, the exposure of miners exposure to respirable coal mine dust. classified as ILO category 1 or greater to respirable coal mine dust places them As noted previously, risk factors include are more likely than those with a clear at increased risk of developing COPD. type(s) of dust, dust concentration, x-ray (category 0) to progress to the Furthermore, COPD may occur in duration of exposure, age of the miner more severe stages of the disease, miners with or without the presence of (often measured as age at time of including the complicated form, PMF simple CWP or PMF. medical examination), and coal rank. (categories A, B, or C) (Cochrane, 1962; COPD is characterized by airflow limitations, and thus there is a loss of a. Simple Coal Workers’ Jacobsen, et al., 1971; McLintock, et al., pulmonary function. As in simple CWP Pneumoconiosis (Simple CWP) and 1971; Morfeld et al., 1992; Balaan, et al., or PMF, a miner with COPD may have Progressive Massive Fibrosis (PMF) 1993). In addition, miners with simple CWP were found to have an increased a variety of respiratory symptoms (e.g., In earlier stages of pneumoconiosis risk of dying from pneumoconiosis (as shortness of breath, cough, sputum the term, ‘‘simple coal workers’ the underlying or a contributing cause production, and wheezing) and may be pneumoconiosis’’ (simple CWP), has on the death certificate), and this risk at increased risk of acquiring infections. been used, while in more advanced tended to increase with increasing COPD is associated with increased stages, the terms ‘‘complicated CWP’’ radiographic category (Kuempel et al., premature mortality (Hansen, et al., and PMF have been used 1995). 1999; Meijers, et al., 1997). interchangeably. Simple CWP and PMF Briefly, in chronic bronchitis and in involve the lung parenchyma and are Progressive massive fibrosis (PMF) is asthma, there is excess mucous produced by deposition and retention of associated with decreased lung function secretion in the mid to lower airways respirable coal dust in the lung. and increased premature mortality (West, 1990; 1992). In contrast, To determine if a miner has simple (Rasmussen, et al., 1968; Atuhaire, et emphysema is characterized by CWP or PMF, chest x-rays are taken and al., 1985; Miller and Jacobsen, 1985; dilatation (enlargement) of alveoli that classified by a certified radiologist or Attfield and Wagner, 1992). Progressive are distal to the terminal bronchioles, reader. Opacities (both irregular and massive fibrosis is also associated with which leads to poor gas exchange (i.e., rounded) are identified on chest films increases in respiratory symptoms such poor transfer of oxygen and carbon and then classified using a scale of 0 as chest tightness, cough, and shortness dioxide). Additionally, there is a through 3 (e.g., simple CWP category 1), of breath. Miners with PMF also have an breakdown of the interstitium between where higher category values indicate increased risk of acquiring infections the alveoli. These pathological changes increasing concentration of opacities. In and pulmonary tuberculosis (Petsonk may be confirmed upon autopsy. With some instances, two category values and Attfield, 1994; Yi and Zhang, 1996). asthma, the airflow limitations may be may be given. For example, simple CWP Finally, miners with PMF have an partially or completely reversible, while category 2/3 signifies that the reader increased risk of right-side heart failure they are only partially reversible with decided the film was category 2, but (i.e., cor pulmonale) (Cotes and Steel, chronic bronchitis and emphysema. suspected that it might have been 1987). The Mine Safety and Health category 3. The International Labour b. Other Health Effects Administration (MSHA) and the NIOSH Office (ILO) has provided a full recognize that respiratory symptoms, description of the criteria for these During a medical examination, a loss of lung function, and COPD may classifications (ILO, 1980). miner may be questioned by his/her impair the ability of a miner to perform Studies have shown that the physician about symptoms such as his/her job and may diminish his/her prevalences of both small rounded and cough, phlegm production, chest quality of life (65 FR 49215). small irregular opacities increase with tightness, shortness of breath, and Additionally, miners having such health increasing coal mine dust exposure wheezing. Occupational physicians may effects are at increased risk of morbidity (Amandus et al., 1976; Cockcroft et al., also conduct pulmonary function tests (e.g., from cardio-pulmonary disease, 1983; Collins et al., 1988). Miners with using spirometry or plethysmography. infections) and premature mortality. Pulmonary performance may be small opacities (rounded and/or 2. Toxicological Literature irregular) on their chest x-rays were assessed via repeated measurements of more likely to report chronic cough and lung volumes and capacities, such as To better understand the human phlegm, and breathlessness, than miners the forced expiratory volume in one health effects of exposure to respirable without small opacities (category 0/0) second (FEV1), vital capacity (VC), coal mine dust and to more fully (Collins et al., 1988). This effect was forced vital capacity (FVC), residual characterize the associated risks, it is more common among miners with volume (RV), and total lung capacity important to consider data that have predominately small rounded opacities (TLC) (West, 1990; 1992). Changes in been obtained in animal based (Collins et al., 1988; Rae et al., 1971). lung volumes and capacities may toxicological studies. To date, sub-acute Small irregular opacities have been indicate a loss of the integrity of the studies (a study with a duration of 30 associated with impaired lung function lung (i.e., respiratory system). More days, or less, in which multiple (Amandus et al., 1976; Cockcroft et al., importantly, they can provide exposures of the same agent are given) 1982b,c; Collins et al., 1988). The information for diagnosis of diseases and chronic studies (a study with a affecting the airways and/or elasticity of duration of more than 3-months, in exceeds 5 percent. However, no effect occurs until the lung (i.e., obstructive vs. restrictive which multiple exposures of same agent the quartz content exceeds 10 percent. lung disease)(West, 1990; 1992). are given) attempted to mimic miners’

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exposures. Inhalation was generally the bioassays). This is important since of respirable coal mine dust (i.e., above route of exposure, although several miners’ exposures also occur via 2.0 mg/m3) over a working lifetime. studies have also employed instillation inhalation, and over a working lifetime. Table V–2 lists epidemiological studies techniques (i.e., a method which places Secondly, the investigators used an since 1986 whose results will be a known quantity of dust into the exposure concentration of 2.0 mg/m3 in discussed on the basis of the type of trachea or bronchi). their bioassays. As noted above, this is observed health effect. Studies Most recent toxicological studies have the current MSHA standard for completed even earlier including the been short-term studies, largely focusing respirable coal mine dust. Thirdly, the early work of Cochrane (1962), on ‘‘lung overload’’ (Sipes, 1996; exposures involved nonhuman McLintock, et al. (1971), and Jacobsen, Oberdorster, 1995; Morrow, 1988, 1992; primates, whose responses are thought et al. (1971) demonstrated the adverse Witschi, 1990), species-dependent lung to closely mimic those of man. Some of health effects (e.g., simple CWP, PMF) responses (Nikula, et al., 1997a,b; the key findings of these studies of respirable coal mine dust in British Mauderly, 1996; Lewis, et al., 1989; included: deposition of coal dust in the coal miners. animals’ lungs, retention of coal dust in Moorman, et al., 1975), and particle Both early and recent studies have size-dependent lung inflammation alveolar tissue, altered lung defense mechanisms, reduced pulmonary shown that the lung is the major target (Soutar, et al., 1997). The data have organ (i.e., organ in which toxic effects shown that pulmonary clearance of airflows, and hyperinflation of the lungs. One of the shortcomings of these occur) when exposure to respirable coal particles may become impaired, mine dust occurs. As seen in Table V– potentially leading to inflammatory and studies is that complete dose-response relationships were not developed. 2, numerous studies of miners have other cellular responses in the lung. However, at higher exposure been conducted. Recent U.S. studies Although overloading has not been concentrations, greater effects may be were conducted using data from one or demonstrated in humans, the finding of expected which is a basic tenet of more of the first four rounds of the reduced lung clearance among retired toxicology. Thus, at exposure National Study of Coal Workers’ U.S. coal miners (Freedman and concentrations above 2.0 mg/m3, MSHA Pneumoconiosis (NSCWP), and have Robinson, 1988) is consistent with this and NIOSH believe that more severe provided extensive data on miners’ possibility. obstructive lung disease may occur (65 health. Many of these studies The data from Moorman, et al. (1975), FR 42078). demonstrated that miners are at Lewis, et al. (1989), and Nikula, et al. increased risk of multiple, concurrent (1997a,b) are noteworthy for several 3. Epidemiological Literature respiratory ailments (Attfield and reasons. First, these groups of Epidemiological studies have Seixas, 1995; Kuempel, et al., 1997; investigators conducted chronic consistently demonstrated the serious Meijers, et al., 1997; Seixas, et al., 1992) inhalation toxicity studies (i.e., chronic health effects of exposure to high levels .

TABLE V–2.—RESPIRABLE COAL MINE DUST EPIDEMIOLOGICAL STUDIES, BY REPORTED OUTCOMES FROM 1986 TO PRESENT

Studies Reported outcomes

Meijers, et al., 1997 ...... PMF, SCWP, COPD, LLF Bourgkard, et al., 1998 ...... PMF, SCWP, LLF, RS Kuempel, et al., 1997* Maclaren, et al., 1989 Kuempel, et al., 1995* ...... PMF, SCWP, COPD Love, et al., 1997 ...... PMF, SCWP, LLF Love, et al., 1992 Althouse, et al., 1998* ...... PMF, SCWP Attfield and Morring,1992b* Attfield and Seixas, 1995* Goodwin and Attfield, 1998* Hodous and Attfield, 1990* Hurley and Jacobsen, 1986 Hurley and Maclaren, 1987; 1988 Hurley, et al., 1987 Morfeld, et al., 1997 Starzynski, et al., 1996 Yi and Zhang, 1996 Collins, et al., 1988 ...... SCWP, COPD, LLF, RS Morfeld, et al., 1997 ...... SCWP Cockcroft and Andersson, 1987 ...... SCWP, COPD, LLF Wang, et al., 1997 Leigh, et al., 1994 ...... COPD, LLF, RS Marine, et al., 1988 Seixas, et al., 1993 Soutar and Hurley, 1986 Attfield and Hodous, 1992* ...... LLF, RS Carta, et al., 1996 Henneberger and Attfield,1997* Henneberger and Attfield,1996* Lewis, et al., 1996 Seixas, et al., 1992*

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TABLE V–2.—RESPIRABLE COAL MINE DUST EPIDEMIOLOGICAL STUDIES, BY REPORTED OUTCOMES FROM 1986 TO PRESENT—Continued

Studies Reported outcomes

Hansen, et al., ...... 1999 LLF Weiss, et al., 1995 COPD: Chronic obstructive pulmonary disease. SCWP: Simple coal workers’ pneumoconiosis. LLF: Loss of lung function. PMF: Progressive massive fibrosis. RS: Respiratory symptoms. * Studies of U.S. Miners Who Participated in the National Study of Coal Workers’ Pneumoconiosis (NSCWP).

a. Simple Coal Workers’ PMF. Dust exposure estimates were were related to coal rank, where higher Pneumoconiosis (Simple CWP) and generated from measurements of dust estimates (e.g., 167/1000) were obtained Progressive Massive Fibrosis (PMF) concentrations as well as from work for high-rank coal (anthracite coal) and Studies following Cochrane (1962) history. A logistic (or logit) regression somewhat lower estimates were and McLintock et al. (1971) have model was used to estimate prevalence obtained for medium/low rank confirmed that the risk of PMF increases of simple CWP and PMF. In this bituminous coal (e.g., 21/1000). Within with increasing category of simple CWP statistical analysis, proportions are each coal rank, the estimates of simple (Hurley and Jacobsen, 1986; Hurley, et transformed to natural logarithmic CWP cases were at least twice as high values, i.e., y = ln [p/(1-p), before a as those for PMF (e.g., 167/1000 PMF vs. al., 1987; Hurley and Maclaren, 1988; ≥ Hodous and Attfield, 1990). However, linear model is fit to the data (Armitage, 380/1000 simple CWP 1). The data of Attfield and Seixas (1995) the risk of PMF was greater than 1977). The logistic model assumes that and Kuempel, et al. (1995; 1997) were previously predicted among miners the data have a binomial distribution consistent with previous data of Attfield with simple CWP category 1 or without (e.g., presence or absence of PMF) for a and Morring (1992b) who reported simple CWP (i.e., category 0) (Hurley, et given set of covariate values (e.g., age, relationships between estimated dust al., 1987). The risk of PMF increased coal rank, dust exposure, pack-years of smoking). Using logistic modeling, exposure and predicted prevalence of with increasing cumulative exposure, simple CWP or PMF. They also noted regardless of the initial category of relationships were developed between cumulative dust exposure and that exposure-response relationships simple CWP (Hurley, et al., 1987), were steeper for higher ranks of coal indicating that reducing dust exposures prevalence of simple CWP (category 1+, category 2+) and PMF. These such as anthracite, and concluded that is a more effective means of reducing the risks for anthracite miners appeared the risk of PMF than reliance on relationships were the key strengths of the Attfield and Seixas study and serve to be greater than for miners exposed to detection of simple CWP. lower rank coal dust. Attfield and Attfield and Seixas (1995) have as the basis for the quantitative risk assessment (QRA) of this rule. Morring (1992b) used similar methods demonstrated a relationship between as described above (i.e., logistic cumulative exposure to respirable coal The recent paper of Kuempel, et al. modeling), but included miners from mine dust and predicted prevalence of (1997) has provided a detailed Round 1 of the NSCWP (1969–1971); pneumoconiosis (i.e., simple CWP, discussion and quantitative presentation thus representing an earlier time point PMF). Two strengths of this study of excess risks associated with in the NSCWP when the respirable coal include the quantitative description of respirable coal dust exposures. Their mine dust concentrations were much exposure-response among both miners study was based upon results from higher than they are today. and ex-miners (who had worked previous studies of some 9,000 Recently, Goodwin and Attfield approximately 13–40 years in mining) underground coal miners who (1998) reported that there were concerns and the fact that these data represent participated in the NSCWP (Attfield and regarding methodological recent conditions experienced by Morring, 1992b; Attfield and Seixas, inconsistencies across surveys given miners in the U.S. They studied a group 1995). Kuempel, et al. estimated excess during the four rounds of the NSCWP. of approximately 3,194 men who (exposure-attributable) prevalence of In particular, they noted the worked in underground bituminous coal simple CWP and PMF (i.e., number of discordance in classification of simple mines. The U.S. miners and ex-miners cases of disease present in a population CWP and PMF among readers of chest had participated in Round 1 (1970– at a specified time, divided by the films. Despite potential discordance, 1972) or Round 2 (1972–1975) of the number of persons in the population at Goodwin and Attfield (1998) have NSCWP and were examined again in that specified time). Point estimates of confirmed previous findings of a decline Round 4 (1985–1988). The study excess risk of PMF ranged from 1/1000 in simple CWP prevalence from 1969 to population excludes 86 miners for to 167/1000 among miners exposed at 1988. Yet, these analyses also whom there was missing exposure data the current MSHA standard for demonstrated that simple CWP has not or unreadable x-rays. Chest x-rays were respirable coal mine dust. These been eliminated. The Round 4 read to determine the number of cases estimates were based upon dust prevalence rates were 3.9 percent for of simple CWP and PMF. Attfield and exposure that occurred over a miner’s simple CWP category 1 and higher, and Sexias (1995) used two or three B working lifetime (e.g., 8 hours per day, 0.9 percent for category 2 and higher. readers to identify the profusion of 5 days a week, 50 weeks per year, over This illustrates the need for continued radiographic opacities based on the ILO a period of 45 years). Actual efforts to reduce dust exposures. classification scheme. The most occupational lifetime exposure may be Given the current system for inclusive category defined in their paper more, due to extended work shifts and monitoring exposures and identifying was CPW 1+ which includes simple work weeks. The point estimates of PMF overexposures in the U.S., miners are at CWP categories 1, 2, and 3, as well as presented by Kuempel, et al. (1997) increased risk of developing simple

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CWP and PMF from a working lifetime within job category (these average needed to be relocated to less dusty exposure to respirable coal mine dust values were combined with data of each workplaces or who needed to be (Althouse et al. 1998, Attfield and individual miner’s duration employed clinically monitored. Bourgkard, et al. Seixas, 1995; Attfield and Morring, in a given job). The earlier U.S. (1998) found a significant association 1992b; Goodwin and Attfield, 1998; exposure-response studies of miners between cumulative dust exposure and Kuempel, et al. 1997, 1995). Whenever participating in the first medical survey what was termed chest x-ray overexposures (i.e., excursions above of the NSCWP (Attfield and Morring, ‘‘worsening’’ (i.e., increase in reader- the applicable dust standard) occur, the 1992b; Attfield and Hodous, 1992; designated category signifying long-term mean exposure of miners may Kuempel, et al., 1995) relied primarily progression of simple CWP). In be increased, thereby causing an on exposure measurements from a dust addition, they found that miners with upward shift on the exposure-response sampling survey during 1968–1969 to pneumoconiosis, wheezing, decreased curve. Such a shift then places these estimate miners’ exposures before 1970 lung function, and high cumulative dust overexposed coal miners at increased (Attfield and Morring, 1992a). An exposure at the first medical risk of developing and dying advantage of the Attfield and Seixas examination were those most likely to prematurely from simple CWP and 1995 study is that, in addition to the show worsening on their chest x-rays PMF. pre-1970 exposure estimates, more four years later. The Attfield and Seixas detailed exposure data were available to Love, et al. (1997, 1992) reported on epidemiological study (1995) is the most estimate miners’ exposures from 1970 to occupational exposures and the health appropriate to use in estimating the 1987, during which the mean airborne of British opencast (i.e., surface or strip) benefit of reduction of overexposures. concentrations were stratified by mine, coal miners. They studied a group of The authors applied scientific rigor to job, and year (Seixas, et al., 1991). approximately 1,200 miners who were the collection, categorization, and The most complete exposure data employed at sites in England, Scotland, analyses of the radiographic evidence available are those for coal miners in the and Wales. The mean age of the men for the group of 3,194 underground United Kingdom (Hurley, et al., 1987; was 41; many had worked in the mining bituminous coal miners who Hurley and Maclaren, 1987; Soutar and industry since the 1970s. To determine participated in Round 4, 1985–1988, of Hurley, 1986; Marine, et al., 1988; dust exposure levels, full-shift personal the National Study of Coal Workers’ Maclaren, et al., 1989). These studies samples were collected. Most were Pneumoconiosis (NSCWP). Radiologic include medical examinations and respirable dust samples which were evidence was carefully collected and individual estimates of exposure for collected using Casella cyclones analyzed by multiple independent, more than 50,000 miners for up to 30 according to the procedures described NIOSH certified B readers to identify years. The U.S. studies are consistent by the British Health and Safety stages of simple CWP and PMF. In the with these U.K. studies in Executive (HSE). Thus exposure targeted population of 5,557 miners, the demonstrating the risks of developing determinations would be comparable to participating miners (3,280) were occupational respiratory diseases from exposure determinations obtained in similar to the non-participants (2,277) exposure to respirable coal mine dust. U.S. surface coal mines since both with regard to age at the first medical These risks increase with increasing measure respirable dust according to the examination and prevalence of simple exposure concentration and duration, British Medical Research Council CWP category 1 or greater. The non- and with exposure to dust of higher (BMRC) criteria. participants had worked slightly longer, ranked coal. The QRA and associated These investigators found a doubling yet had lower prevalence of simple CWP benefits for this rulemaking were based in the relative risk of developing category 2 or greater, than the on the Attfield and Seixas (1995) study profusion of simple CWP category 0/1 participants. This study describes the because, in addition to the advantages for every 10 years of work in the differences among current miners and described above, it best represents the dustiest jobs in surface mines. These ex-miners (health-related or job-related) recent conditions experienced by respirable coal dust exposures were in the relationships between the miners in the U.S. The QRA, under 1 mg/m3. Love, et al. (1992, estimated cumulative exposure to Significance of Risk discussion, and 1997), like other investigators, respirable coal mine dust and Benefits estimates follow in Sections VI, emphasized the need for monitoring and prevalence of simple CWP category 1 or VII, and IV (a)(2), respectively. The controlling exposures to respirable coal greater. Such data and relationships international studies provide an mine dust, particularly in high risk were not available in other U.S. studies important basis for comparison with the operations (e.g., drillers, drivers of and non-U.S. studies. U.S. findings, and several of the recent bulldozers). A potential limitation in the U.S. international studies are described in Meijers, et al. (1997) studied Dutch studies is the possible bias in the detail here. coal miners who were examined exposure data, which has been the Bourgkard, et al., (1998) conducted a between 1952 and 1963, and who were subject of several studies (Boden and 4-year study of a group of French coal followed until the end of 1991. They Gold, 1984; Seixas et al., 1991; Attfield miners who were employed in reported an increased risk of mortality and Hearl, 1996). An advantage of the underground and surface mines. The from simple CWP and PMF among Attfield and Seixas 1995 study (and the investigators examined the prognostic miners who had generally worked earlier studies based on the same data role of cumulative dust exposure, underground for 20 or more years. Their set) is that the larger mines included in smoking patterns, respiratory conclusions were based upon dramatic these epidemiological studies were symptoms, lung CT scans, and lung increases in standardized mortality shown to have exposure data with function indices for chest x-ray ratios (SMRs). There were several relatively small bias (Attfield and Hearl, worsening and evolution to simple CWP limitations in this study, however. 1996). Another limitation in exposure and PMF. Bourgkard, et al., (1998), Morfeld, et al. (1997) published a data used in the U.S. studies is that the through selection of a younger worker recent paper that investigated the risk of airborne dust concentrations used to population (i.e., 35–48 years old at start developing simple CWP in German estimate individual miners’ cumulative of study), attempted to focus on the miners and addressed the occupational exposures to respirable coal mine dust early stages of simple CWP. In essence, exposure limit for respirable coal dust were based on average concentrations they hoped to identify those miners who in Germany. Their study included

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approximately 5,800 miners who intervals. They have shown that participants studied in Seixas et al., worked underground from the late exposure to respirable coal dust 1993). Such reductions in FEV1 are 1970s to mid-1980s. Morfeld, et al. increases the risks of developing simple clinically significant; FEV1 <80% (of observed increases in relative risks CWP and of progressing to PMF. As predicted normal values) is a measure (RRs) of developing early x-ray changes, seen in their data analysis, these that is used to determine ventilatory category 0/1, that were exposure- responses were dependent upon dust defects (American Thoracic Society, dependent. Relative risks (RRs) concentration and coal rank. That is, 1991). Three recent studies found increased with higher dust greater responses were seen at higher impaired FEV1 to be a predictor of concentrations. dust concentrations and with higher increased pre-mature mortality (Weiss, Starzynski, et al. (1996) conducted a rank coal (i.e., increasing percent et al., 1995; Meijers, et al., 1997; Hansen mortality study on a group of 11,224 carbon). The investigators also noted et al., 1999). Polish males diagnosed with silicosis, that estimated risks were unaffected by Seixas, et al. (1993) conducted an simple CWP, or PMF between 1970 and changes in the proportion of miners analysis of 977 underground coal 1985. This cohort was subdivided by with simple CWP who transferred jobs. miners who began working in or after occupation into four subcohorts: Coal The authors concluded that ‘‘limiting 1970 and were participants of both miners (63%); employees of exposure to respirable coal dust is the NSCWP Round 2 (1972–1975) and underground work enterprises (8%) only reliable way of limiting the risks of Round 4 (1985–1988). They found a (i.e.,drift cutting and shaft construction radiological changes to miners.’’ rapid loss of lung function in miners jobs); metallurgical industry and iron, and further declines in lung function and nonferrous foundry workers (16%); b. Other Health Effects with continuing exposure to coal mine and refractory materials, china, ceramics As noted in Table V–2, there were 21 dust. Collectively these studies have and quarry workers (13%). The studies in which the loss of lung shown that the prevalence of decreased investigators found that coal miners had function (LLF) was examined in coal lung function was proportional to a slight, statistically significant excess miners. Fourteen of these studies also cumulative exposure. That is, with overall mortality (i.e., all causes) as included an evaluation of respiratory exposure to higher coal dust levels over indicated by a standardized mortality symptoms (RS) in the miners. There a working lifetime, there were more ratio (SMR) of 105 (with a 95% were nine studies describing chronic miners who experienced a loss of lung confidence interval (C.I.) of 100–110). obstructive pulmonary disease (COPD) function. Also, the types of respiratory Also, excess of deaths from diseases of in miners. symptoms and patterns of pulmonary the respiratory system among coal Henneberger and Attfield (1997; function decrements observed by both miners was nearly four times that of the 1996), Kuempel, et al. (1997), Seixas, et Attfield and Hodous (1992) Seixas, et al. referent population (SMR of 383 with a al. (1993), Attfield and Hodous (1992), (1992;1993) are characteristic of COPD. 95% C.I. of 345–424). The study of and Seixas, et al. (1992) evaluated data The U.S. findings on respiratory Starzynski, et al. (1996) agrees with from pulmonary function tests and symptoms and loss of lung function in others that there is premature mortality standardized questionnaires to miners miners have agreed with those of among coal miners from simple CWP in the NSCWP. A common finding in previous British studies by Marine, et and PMF. Unfortunately, there is little their studies was an increase in al. (1988) and Soutar and Hurley (1986). or no information presented on miner respiratory symptoms such as cough, Marine, et al. (1988) analyzed data from work history, exposure assessment (e.g., shortness of breath, and wheezing. The British coal miners and focused their respirable coal mine dust, silica), and symptoms were dependent upon the attention on respiratory conditions other mine environment (e.g., coal rank(s), dust concentration to which the miners than simple CWP and PMF. In underground vs. surface mining). had been exposed, with more particular, they examined the Forced Yi and Zhang (1996) conducted a pronounced symptoms occurring after Expiratory Volume in one second (FEV1) study to measure the progression from long-term exposures to higher exposure among smoking and nonsmoking miners simple CWP to PMF or death among a levels. These studies also demonstrated and, on the basis of reported respiratory cohort of 2,738 miners with simple CWP that a loss of lung function occurred symptoms, identified those miners with who were employed at the Huai-Bei coal among miners. bronchitis. Using these data, logistic mine in China. Relative risks (i.e., RRs) Attfield and Hodous (1992) studied regression models were used to estimate were calculated for progression from U.S. miners who had spent 18 years the prevalence of chronic bronchitis and simple CWP category 1 to simple CWP underground (on average) and who loss of lung function. Marine, et al. category 3 and for progression from participated in Round 1 (1969–1971) of concluded that both exposure to simple CWP category 3 to death. Their the NSCWP. They observed that greater respirable coal mine dust and smoking results demonstrated that miners with reductions in pulmonary function were independently cause decrements in lung simple CWP category 1 are at risk of associated with exposure to higher function; their contributions to COPD developing simple CWP category 2 and ranks of coal (i.e., anthracite vs. appeared to be additive in coal miners. simple CWP category 3 (e.g., RRs of bituminous vs. lignite). Using linear Soutar and Hurley (1986) examined 1.101 and 2.360, respectively). They regression models, Kuempel et al., the relationship between dust exposure also found that miners with PMF had a (1997) predicted the excess (exposure and lung function in British coal miners decreased life expectancy. Other risk attributable) prevalence of lung function and ex-miners. The men who were factors for development of PMF decrements among miners with studied were employed in coal mines in included long-term work underground, cumulative exposures to respirable coal the 1950s and were followed up and and drilling. This study was limited by mine dust of 2 mg/m3 for 45 years (i.e., examined 22 years later. These miners a lack of exposure assessment, 90 mg–yr/m3). The excess prevalence and ex-miners were categorized as estimation of miner smoking histories, estimated were 315 and 139 cases per smokers, ex-smokers, or nonsmokers. and use of a radiological classification thousand for forced expiratory volume The Forced Expiratory Volume in one system that differs from that of the ILO. in one second (FEV1) of <80% and second (FEV1), the Forced Vital Hurley and Maclaren (1987) studied <65% of predicted normal values, Capacity (FVC), and the FEV1/FVC British coal miners who were examined respectively, among never-smoking ratios decreased in all study groups and between 1953 and 1978, over 5-year miners (a sub-group of 977 NSCWP these reductions in lung function were

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inversely proportional to dust exposure. 1 and 1/0) and the prognostic role of was a greater loss of lung function than Thus, Soutar and Hurley concluded that cumulative dust exposure, smoking in nonsmoking miners with the same exposure to respirable coal mine dust patterns, respiratory symptoms, lung CT level of exposure to respirable coal mine can cause severe respiratory scans, and lung function indices for dust. Above age 55, the loss of lung impairment, even without the presence chest x-ray worsening and evolution to function was similar for miners and of simple CWP or PMF. They speculated simple CWP category 1/1 or higher. their controls, although all smokers that the pathology of coal dust-induced Over a 4-year period, they studied continued to exhibit a greater loss of lung disease differs from that induced French coal miners who were employed lung function than nonsmokers. Lewis, by smoking. in underground and surface mines. et al. (1996) concluded that the deficits Centrivacinar emphysema in coal Bourgkard, et al. (1998) found that, at in lung function may occur in the miners has been associated with the the first medical examination, the ratio absence of simple CWP and PMF, and amount of dust retained in their lungs of the Forced Expiratory Volume in one independent from the effects of at the end of life and with their dust second (FEV1) to the Forced Vital smoking. exposures during life and the years Capacity (FVC) (i.e., FEV1/FVC) and There have been two recent mortality worked underground (Ruckley et al., other airflows determined from a forced studies that have demonstrated a 1984; Leigh et al., 1983, 1994). expiration (West, 1990; 1992) were relationship between exposure to Emphysema in coal miners has also lower among miners who later respirable coal mine dust and been associated with pathological developed simple CWP category 1/1 or development of COPD. This association measurements of pneumoconiosis higher. These miners also experienced was reported by Kuempel, et al. (1995) (Cockcroft et al., 1982a), and with lung more wheezing at the first medical in the U.S., and by Meijers, et al. (1997) function decrements and irregular examination. Thus, the results of their in the Netherlands. These two groups of opacities on chest x-rays (Cockcroft et study suggested that lung function investigators have reported that al. 1982b,c; Cockcroft and Andersson, changes may serve as an early indicator occupationally-induced COPD (e.g., 1987). of miners who are at increased risk of chronic bronchitis, emphysema) can Recent studies from China (Wang, et developing simple CWP and PMF and occur in miners, with or without the al., 1997) and the European community who should be monitored more closely. presence of simple CWP or PMF. They (Bourgkard, et al., 1998; Carta, et al., Carta, et al. (1996) have examined the also found that the risk of premature 1996; Lewis, S., et al., 1996) have also role of dust exposure on the prevalence mortality from COPD was elevated supported the British and U.S. findings of respiratory symptoms and loss of among miners and could be separated which demonstrated the correlation lung function in a group of young Italian from the effects of smoking and age. between occupational exposure to coal coal miners (i.e., mean age at hire 28.9 Kuempel, et al. (1995) found an dust and respiratory symptoms and loss years, mean age at first survey 31.2 increase in relative risk (RR) of of lung function in miners. years). These miners worked premature mortality from COPD among Wang, et al. (1997) examined lung underground and were exposed to U.S. coal miners who participated in the function in underground coal miners lignite (i.e., low rank coal) which had a NSCWP from 1969 through 1971. In and other workers from several factories 5–7% sulfur content. They were their data analysis, the exposure- in Chongqing, China. For their study, followed for a period of 11 years, from response relationship was evaluated information was obtained on exposure 1983 and 1993. Carta, et al. (1996) found using the Cox proportional hazards duration, results of radiographic tests, few abnormalities on miner chest x-rays model. This model assumes that the and smoking history. Pulmonary taken throughout the 11-year study. hazard ratio between nonexposed and function tests were performed, However, there was an increased exposed groups does not significantly providing the Forced Expiratory Volume prevalence of respiratory symptoms and change with time. When fitting a curve in one second (FEV1), the Forced Vital loss of lung function. This was to the data (e.g., log-linear), cumulative Capacity (FVC), and FEV1/FVC data. particularly noteworthy since dust exposure was expressed as a categorical Additionally, the diffusing capacity for exposures were often below 1.0 mg/m3; or continuous variable. Due to model carbon monoxide (DLCO) was measured. the cumulative dust exposure for the limitations (e.g., less statistical power, This is an indicator of diffusion whole cohort was 6.7 mg-yr/m3 after the influence of category scheme, use of impairment at the ‘‘blood-gas barrier’’ first survey. Thus, Carta, et al. (1996) lowest exposure group for comparisons which may occur, for example, when demonstrated that miners experience vs. use of non-exposed group), this barrier becomes thickened (West, respiratory effects of exposure to dust Kuempel, et al., (1995) believed that the 1990; 1992). Wang, et al. (1997) found generated from a lower rank coal and at exposure data should be expressed as a that there was impairment of pulmonary lower concentrations. They have continuous variable. If, for example, the function among the coal miners and recommended yearly measurements of cumulative exposure was 90 mg-yr/m3 they had evidence of obstructive lung function for miners. (i.e., 2 mg/m3 for 45 years), then the disease. Like other studies, such effects Lewis, et al. (1996) studied a group of relative risk of mortality from chronic were observed among coal miners even British miners, many of whom entered bronchitis or emphysema was 7.67. in the absence of simple CWP. the coal industry in the 1970s. Based Kuempel, et al. (1995) also showed that Pulmonary function was further upon chest x-rays, the miners had no relative risk decreased with lower decreased when simple CWP was evidence of simple CWP or PMF. The cumulative exposures (i.e., below 90 present. This study did not provide objective of this study was to determine mg-yr/m3) and increased with higher exposure measurements and there was whether coal mining (i.e., exposure to cumulative exposures (i.e., above 90 mg- no consideration of exposure-response respirable coal mine dust) is an yr/m3). Thus, these investigators relationships. Also, silica exposures and independent risk factor for impairment demonstrated a statistically significant their potential effects were not of lung function. Lewis, et al. (1996) exposure-response relationship for examined in the underground coal found that there was a loss of lung COPD. miners. function in miners (smokers and Meijers, et al. (1997) have shown, As noted above, Bourgkard, et al. nonsmokers), particularly among miners among Dutch miners, reductions in lung (1998) was interested in the earlier who were under approximately 55 years volumes and capacities are good stages of simple CWP (i.e., Categories 0/ of age. For miners who smoked, there predictors of the increased risk of

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premature mortality from COPD. For U.S.C. 811(a)(6)(A)). Furthermore, the identify and characterize such MMUs. example, a diminished forced expiratory need to evaluate risk does not mean that In the current proposed rule, MSHA has volume in one second (FEV1) or a an agency is placed into a updated the analysis to 2001, included diminished ratio of the FEV1 to the ‘‘mathematical straightjacket.’’ In MSHA DO sampling data in addition to 16 forced vital capacity (FVC) (i.e., FEV1/ Industrial Union Department, AFL–CIO operator data, and expanded the FVC) upon medical examination was v. American Petroleum Institute (448 quantitative analysis to include the associated with a significantly increased U.S.), otherwise known as the reduction in risk expected for certain standardized mortality ratio (SMR) for ‘‘Benzene’’ decision, the court ruled miners not previously considered (i.e., COPD (322 and 212, respectively). In that: miners working in RB–DAs). As a result, other words, miners with diminished So long as they are supported by a body MSHA believes it has now more lung capacity based on FEV1 were two of reputable scientific thought, the Agency is comprehensively quantified the to three times more likely to die free to use conservative assumptions in reduction in risk expected for the most prematurely due to COPD than miners interpreting the data * * * risking error on highly exposed miners currently subject who had normal lung function. In the side of overprotection rather than to recurrent overexposures. contrast, SMRs for COPD were not underprotection. (448 U.S. 607, 100 S.Ct By ‘‘exhibiting a pattern of recurrent significantly increased in miners with 2844 (1980) at 656) overexposures,’’ MSHA means that, for normal lung volumes and capacities. As explained earlier, MSHA’s the same DO or RB–DA, at least two These data support prior conclusions of objective in strengthening the valid MSHA or bimonthly operator Seixas, et al. (1992, 1993) and Attfield requirements for verifying the samples have exceeded the applicable and Hodous (1992) based on morbidity effectiveness of dust control plans, and dust standard during a year. MMUs studies. in enforcing effective plans through the exhibiting such a pattern are highly new enforcement policy proposed, is to likely to have experienced excessive VI. Quantitative Risk Assessment ensure that no miner is exposed to an exposures on at least six shifts during Having reviewed the reported health excessive concentration of respirable the year under consideration.17 effects associated with exposure to dust on any individual shift (i.e., a Based on 2001 MSHA and operator respirable coal mine dust, MSHA has concentration in excess of the data, there were 716 MMUs (out of evaluated the evidence to determine applicable dust standard). MSHA’s 1,256 total) at which dust whether the current regulatory strategy samples, combined with the more concentrations for the DO exceeded the can be improved. The criteria for this frequent bimonthly operator samples applicable dust standard on at least two evaluation are established by section reveal recent overexposures on of the sampling shifts (MSHA, datafile: 101(a)(6)(A) (30 U.S.C. 811(a)(6)(A)) of individual shifts in many mines. DO_2001.ZIP). MSHA considers these the Mine Act, which states that: Furthermore, these dust samples 716 MMUs, representing 57 percent of The Secretary, in promulgating mandatory demonstrate that, in many mines, dust all MMUs and more than one-half of all standards dealing with toxic materials or concentrations exceed the applicable underground coal miners working in harmful physical agents under this dust standard on a substantial production areas, to have exhibited a subsection, shall set standards which most percentage of the production shifts. This pattern of recurrent overexposures. adequately assure on the basis of the best pattern has persisted for many years; Valid DO samples were collected on a available evidence that no miner will suffer and, since the existing program permits total of 20,905 shifts at these 716 material impairment of health or functional individual shift excursions above the MMUs, and the applicable dust capacity even if such miner has regular standard was exceeded on 4,028 of these exposure to the hazards dealt with by such applicable dust standard, a similar standard for the period of his working life. pattern can be expected to continue over shifts, or 19.3 percent. For this 19.3 the working lifetime of affected percent, the mean excess above the Based on Court interpretations of miners—unless an effort is made to standard, as measured for the DO only, similar language under the eliminate excessive exposures on was 1.04 mg/m3. Occupational Safety and Health Act, individual shifts. These results are based on a large there are three questions that must be In this quantitative risk assessment number of shifts (an average of nearly 30 addressed: (1) Whether health effects (QRA), MSHA will demonstrate that at each of the 716 MMUs). Therefore, associated with the current pattern of reducing respirable coal mine dust assuming representative operating overexposures on individual shifts concentrations to no more than the conditions on these shifts, the results constitute a material impairment to applicable dust standard on each and can be extrapolated to all production miner health or functional capacity; (2) every shift would, over a 45-year whether the current pattern of occupational lifetime, significantly 17 MSHA estimates a MMU average of 384 overexposures on individual shifts bring down the cumulative exposure to production shifts per year. At MMUs exhibiting a places miners at a significant risk of pattern of recurrent overexposures in 2001, valid respirable coal mine dust, thereby DO samples were obtained on an average of about incurring any of these material significantly reducing the risk of both 30 of these 384 production shifts. If dust impairments; and (3) whether the simple CWP and PMF among miners. concentrations on two or more of the sampled shifts proposed rules will substantially reduce This reduction in risk would result from exceed the standard, then it follows, at a 95-percent those risks. reducing concentrations on just that confidence level, that the standard is exceeded on The statutory criteria for evaluating at least six shifts over the full year. percentage of shifts currently showing If a different definition of ‘‘exhibiting a recurrent the health effects evidence do not an excess. pattern of overexposures’’ had been used in the require absolute certainty. Under MSHA has estimated health benefits QRA, the estimate of the reduction in risk and section 101(a)(6)(A) of the Mine Act, of the two rules based on eliminating associated benefits would have been different. For MSHA is required to proceed according example, if the criterion were that four or more excessive exposures at only those bimonthly DO exposure measurements exceeded to the ‘‘best available evidence’’ (30 MMUs and roofbolter designated areas the applicable dust standard then overexposures (RB–DAs) currently exhibiting a pattern would be expected, with 95% confidence, to occur 16 Forced vital capacity (FVC) is the total volume of recurrent overexposures on on at least 20 shifts in a year of 384 shifts. Using of gas that can be exhaled with a forced expiration more than two recorded overexposures as the after a full inspiration; The vital capacity measured individual shifts. In the previous criterion would arbitrarily reduce the population with a FVC may be less than that measured with proposed rule, MSHA used operator for which MSHA is estimating benefits and a slower exhalation (West, 1992). sampling data from the year 1999 to decrease the estimated number of prevented cases.

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shifts, including those that were not concentration in that air by 1.04 mg/m3 exposures in these models were sampled, at these same 716 MMUs. will result in 10.4 mg less dust inhaled expressed in units of mg-yr/m 3. With 99-percent confidence, the overall on that shift alone. Assuming the miner At the MMUs being considered (those percentage of production shifts on works 240 shifts per year, then reducing exhibiting a pattern of recurrent which the DO sample exceeded the inhaled respirable dust by an average of overexposures), bringing dust standard was between 18.6 percent and 10.4 mg on 19.3 percent of the shifts concentrations down to no more than 20.0 percent for 2001. At the same will reduce the total respirable coal the applicable dust standard on each confidence level, again assuming mine dust inhaled by 482 mg per year, and every production shift would representative operating conditions, the or nearly 22,000 mg over a 45-year reduce DO exposures on the affected overall mean excess on noncompliant working lifetime: shifts by an average of 1.04 mg/m3. shifts at these MMUs was between 0.96 1.04 mg less respirable coal mine dust Assuming this average reduction applies 3 3 to only 19.3 percent of the shifts, the mg/m and 1.11 mg/m . If, as some per m3 of inhaled air commenters on the earlier single sample effect would be to reduce cumulative × 10 m3 inhaled air per shift proposed rule and the Dust Advisory × exposure, for each miner exposed at or Committee proceedings have alleged, 46.32 affected shifts (i.e., 19.3% of above the DO level, by 0.20 mg-yr/m3 240) per work year over the course of a working year (i.e., operators tend to reduce production × and/or increase dust controls on 45 work years per working lifetime 19.3 percent of shifts in one year, times sampled shifts, then the true values = 21,678 mg less respirable coal mine 1.04 mg/m3 per shift). Therefore, over a could be higher than even the upper dust inhaled per working lifetime. 45-year working lifetime, the benefit to endpoints of these 99-percent In Section V, the strengths and each affected miner would, on average, confidence intervals. weaknesses of various epidemiological amount to a reduction in accumulated The available data suggest that, unless studies were presented, supporting the exposure of approximately 9.0 mg-yr/m3 changes are made to enforce the selection of Attfield and Seixas (1995) (i.e., 45 years times 0.20 mg-yr/m3 per applicable dust standard on every shift, as the study that provides the best year). If, as some miners have testified, the same general pattern of available estimate of material health operator dust samples submitted to overexposures observed in 2001 will impairment with respect to CWP. Two MSHA tend to under-represent the persist into the future.18 Therefore, strengths of this study are its frequency or magnitude (or both) of MSHA concludes that without the quantitative description of exposure- individual full-shift excursions above proposed changes: response among both miners and ex- the applicable dust standard, then • More than half of all MMUs would miners (who had worked as miners for eliminating such excursions would continue to have a pattern of recurrent approximately 13–40 years) and the fact provide a lifetime reduction of even overexposures on individual shifts; that it reflects recent conditions greater than 9.0 mg-yr/m3 for each • At those MMUs with recurrent experienced by coal miners in the U.S. affected miner. overexposures, full-shift average Using the exposure-response The Attfield-Seixas models predict respirable dust concentrations for the relationship it is possible to estimate the the prevalence of CWP 1+, CWP 2+, and DO would continue to exceed the health impact of bringing dust PMF for miners who have accumulated applicable dust standards on about 20 concentrations down to or below the a given amount of exposure, expressed 3 percent of all production shifts; applicable dust standard on every shift. in units of mg-yr/m , by the time they • Among those shifts on which DO This is the only contemporary attain a specified age. Benefits of exposure exceeds the applicable dust epidemiological study of CWP in U.S. reducing cumulative exposure can be standards, the mean excess for the DO miners providing such a relationship. estimated by calculating the difference would continue to be approximately 1 Attfield and Seixas (op cit) used two between predictions with and without 3 mg/m . or three B readers to identify the the reduction. For example, suppose a If all overexposures on individual profusion of opacities based on the ILO miner at one of the MMUs under shifts are eliminated, the reduction in classification scheme.19 The most consideration begins work at age 20 and total respirable coal mine dust inhaled inclusive category defined in their paper retires at age 65. At these MMUs, the by a miner over a working lifetime will was CWP 1+, which include simple mean DO concentration reported in depend on three factors: (1) The average 3 CWP categories 1, 2, and 3, as well as 2001 was 1.15 mg/m ; so, after 45 years, volume of air inhaled on each shift that PMF. The second category CWP 2+, a miner exposed at this level can be would otherwise have exceeded the does not include simple CWP, category expected to have accumulated a total applicable dust standard, (2) the degree 3 1, but does include the more severe exposure of nearly 52 mg-yr/m (i.e., 45 of reduction in respirable dust × 3 simple CWP categories, 2 and 3, as well yr 1.15 mg/m ). By the year of concentration in the air inhaled on such as PMF. The third category used in their retirement, such a miner is expected to shifts, and (3) the number of such shifts 3 report was PMF, denoting any category accumulate, on average, 9.0 mg-yr/m per working lifetime. While the inhaled (A, B, or C) of large opacities. The less exposure if individual shift dose (mg) could not be measured authors applied logistic regression excursions are eliminated. For 65-year- directly, it is biologically and models to the prevalence of CWP 1+, old miners, reducing an accumulated quantitatively related to the 3 CWP 2+, and PMF as a function of total dust exposure of 52 mg-yr/m by accumulated exposure (i.e., airborne 3 accumulated coal mine dust exposure 9.0 mg-yr/m reduces the predicted concentration multiplied by duration, calculated for each miner included in prevalence of ‘‘CWP 1+’’ by more than summed across jobs for each miner) the study. In the absence of data 16 per thousand (see the entry for used to predict CWP and PMF 20 differentiating the inhalation rates of affected DO miners in Table VI–1). prevalences in the Attfield-Seixas individual miners, the accumulated models. If a miner inhales ten cubic 20 The Attfield-Seixas model predicts a higher meters of air on a shift (U.S. EPA, 1980), prevalence of CWP, and consequently a greater risk 19 If three readings were available, the median reduction (35 per thousand DO miners at age 65), reducing the respirable coal mine dust value was used. If two readings were available, the after 45 years of occupational exposure to coal mine higher of the two ILO categories was recorded. dust in central Pennsylvania or southeastern West 18 Appendix VI.1 compares the pattern observed Eighty radiographs were eliminated because only Virginia. (Attfield and Seixas attribute this effect to in 2001 to that in earlier years. one reading was available. Continued

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This result, however, applies only to by the reduction in prevalence of than the DO on some shifts. Therefore, DO miners at age 65. The Attfield-Seixas disease predicted at age 73.22 the second category of affected miners models provide different predictions for Since not all underground coal miners addressed in Table VI–1 is the each year of age that a miner attains. are overexposed to dust with the same population of non-DO faceworkers other The predicted benefit turns out to be frequency or at the same level, Table than those working in roofbolter DAs smaller for younger miners and larger VI–1 shows the risk reductions (who are addressed as a separate, third for older miners. This is partly because projected for three different categories of category). younger miners will have accumulated affected miners: (1) DO miners, (2) NDO (2) NDO Miners. This category covers all faceworkers other than the DO, less exposure reduction as a result of miners who are faceworkers neither except those roofbolters for which a today’s final changes, and partly classified as a DO nor subject to a separate applicable dust standard separate DA applicable dust standard because the Attfield-Seixas models has been established. (Roofbolters not depend directly on age as well as on applicable to a RB–DA, and (3) DA roofbolters. The reduction in risk coming under a DA standard are cumulative exposure. The health effects predicted for each of these three included in the NDO category). To of recurrent overexposures can occur categories will now be discussed in estimate how NDO miners (other than long after the overexposures occurred. turn. those subject to a DA standard) would Even after a miner retires and is no (1) DO Miners. As explained earlier, be affected by the proposed rules, longer exposed to respirable coal mine for DO miners the predicted lifetime MSHA examined the results from all dust, the additional risk attributable to exposure reduction accumulates at a valid dust samples collected by MSHA 3 an extra 9.0 mg-year/m , accumulated rate of 0.20 mg/m3 of reduced exposure in underground MMUs during 2001 earlier, continues to increase with age. per year during the 45 ‘‘working years’’ (MSHA, data file: Insp2001.zip). Within Consequently, the benefit to be gained between 20 and 65, reaching a each MMU, MSHA typically takes one from eliminating individual shift maximum of 9.0 mg-yr/m3 upon sample on the DO and, on the same excursions also continues to increase retirement at age 65. Between ages 65 shift, four or more additional samples after a miner is no longer exposed. For and 80, the accumulated reduction in representing other occupations. In 2001, example, assuming no additional dust exposure remains at an estimated there was an average of 1.0 NDO exposure after age 65, the predicted average of 9.0 mg-yr/m3, but (as also measurement in excess of the standard reduction in average prevalence of CWP explained previously) the benefit in on shifts for which the DO measurement 1+ increases from 16.6 per thousand at terms of both simple CWP and PMF risk exceeded the standard.24 For NDO age 65 to 21.4 per thousand at age 70. continues to increase. measurements that exceeded the Presumably, the increasingly greater The first row of Table VI–1 presents standard on the same shift as a DO predicted reduction in risk of disease the reductions in risk expected among measurement, the mean excess above affected DO miners who work at a MMU the standard was approximately 0.6 mg/ after age 65 is due to the latent effects 3 25 of the reduction in earlier exposure and exhibiting a pattern of recurrent m . Combining these results with the 19.3 the progressive nature of CWP. overexposures. For this group of miners, the calculation at an average lifetime of percent rate of excessive exposures To quantify benefits expected from 73 years shows that bringing dust observed for the DO on individual eliminating overexposures on each and concentrations down to no more than shifts, it is reasonable to infer that, at every shift, MSHA applied the Attfield- the applicable dust standard on each the MMUs under consideration, an Seixas models to a hypothetical shift would: average of 1 other miner, in addition to population of miners who, on average, • Reduce the combined risk of simple the 1 classified as DO, is currently begin working at age 20 and retire at age CWP and PMF by 24.4 cases per 1000 overexposed on at least 19 percent of all 65, assuming different lifetimes.21 To affected DO miners; 23 production shifts. In 2001, the mean of show the range of potential reductions • Reduce the combined risk of simple the highest dust concentration reported in risk depending on a miner’s lifetime, for any non-DO miner on sampled shifts CWP (category 2 and 3) and PMF by 3 Table VI–1 presents the risk reductions 15.5 cases per 1000 affected DO miners; was 1.08 mg/m . Over the course of predicted at three different attained • Reduce the risk of PMF by 7.6 cases each working year, the reduction in ages: 65, 73, and 80 years. The projected per 1000 affected DO miners. exposure expected for such miners as a benefit increases with attained age. When the dust concentration result of implementing the proposed 3 measured for the DO exceeds the rules is 0.12 mg-yr/m (i.e., 19.3 percent However, MSHA’s best estimate of the 3 benefit to exposed miners is expressed applicable dust standard, measurements of one year, times 0.6 mg/m ). To assess the reduction in risk for at least some of the other miners in expected from eliminating all single- the same MMU may also exceed the the type of coal mined in those geographic areas). shift exposures for these NDO miners, However, few underground coal mines in central standard on the same shift, though MSHA again applied the Attfield and Pennsylvania or southeastern West Virginia are still usually by a lesser amount. operating. In fact, only about 29 of the 716 MMUs Seixas models to miners who begin Furthermore, although the DO exhibiting a pattern of recurrent overexposures in working at age 20 and retire at age 65, represents the occupation most likely to 2001 were from those areas. Therefore, the risk assuming lifetimes of 65, 73, and 80 assessment presented here, along with projected receive the highest exposure, one or years. This time, however, the resulting benefits of the rule, are based on the lower risks more of these other miners may be decrease in predicted prevalence was predicted for miners working outside central exposed to even higher concentrations Pennsylvania and southeastern West Virginia. multiplied by 1.0/6 = 0.167, to reflect 21 Appendix VI.2 contains a technical description 22 the fact that the assumed rate of of the Attfield-Seixas models and an explanation of The expected lifetime for all American males, overexposure applies, on average, to how MSHA applied them to obtain the results conditional on their having reached 20 years of age, shown in Table VI–1. The method used in applying is 73 years (calculated from U.S. Census, March the models differs slightly from that used in the 1997, Tables 18 and 119). 24 With 95-percent confidence, on shifts for which previous proposed rule, and Appendix VI.2 also 23 ‘‘Affected DO miners’’ include all miners who the DO measurement exceeds the standard, the explains this difference. In addition, an EXCEL work at MMUs with a pattern of recurrent mean number of other occupational measurements workbook entitled ‘‘RiskRdxn.xlw’’ showing the overexposures and who are exposed to dust also exceeding the standard is at least 0.91. formulas used in the calculations has been placed concentrations similar to the DO over a 45-year 25 With 95-percent confidence, the mean excess is into the public record for these proceedings. working lifetime. at least 0.59 mg/m3.

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about one-sixth of the faceworkers not (3) Roofbolter DA (RB–DA) Miners. standard, as measured for the RB–DA classified as the DO.26 Because roofbolters are often exposed to only, was 0.72 mg/m3 (95-percent The second row of Table VI–1 higher quartz concentrations than other confidence interval: 0.64 to 0.80). contains the risk reductions for NDO miners, the applicable dust standard for At these RB–DAs (i.e., those miners expected as a result of them is frequently different from the exhibiting a pattern of recurrent eliminating all individual shift standard applicable to other miners overexposures), the mean concentration overexposures. Over an occupational working in the same MMU. Therefore, reported in 2001 was 0.94 mg/m3; so, lifetime, the average reduction in risk many roofbolters are classified as after 45 years, an RB–DA miner can be for simple CWP and PMF combined, working in a ‘‘roofbolter designated and for PMF alone, increases with age. area’’ (RB–DA). For purposes of this expected, if there is no change in However, the risk reduction at each age QRA, such roofbolters were excluded current conditions, to have accumulated is smaller for the affected NDOs than for from the analysis of NDO miners a total exposure of more than 42 mg-yr/ 3 the affected DOs. This is expected presented above. Based on 2001 MSHA m . By retirement at age 65, such a because the estimated probability that a and operator data, 194 out of a total 659 miner would be expected to accumulate, 3 NDO (other than a RB–DA) will, under RB–DAs met MSHA’s criterion for on average, 7.8 mg-yr/m less exposure current conditions, be overexposed on a exhibiting a pattern of recurrent if overexposures on all individual shifts × given shift is only 16.7 percent of the overexposures—i.e., dust concentrations were eliminated. (45 years 24.1% of corresponding probability for the DO. exceeded the applicable dust standard 0.72 mg/m3). The third row of Table VI– For the MMUs under consideration, the on at least two of the sampled shifts 1 shows the estimated impact of the predicted reduction in risk for (MSHA, datafile: RBDA2001.ZIP). Valid proposed rules on the risk predicted for faceworkers other than the DO who live RB–DA samples were collected on a RB–DA roofbolters. At age 73, reducing an expected lifetime of 73 years is: 2.3 total of 3477 shifts at these 194 RB–DA an accumulated total dust exposure of fewer cases of ‘‘CWP 1+’’ per thousand MMUs, and the applicable dust 42 mg-yr/m3 by 7.8 mg-yr/m3 reduces affected NDO miners; 1.5 fewer cases of standard was exceeded on 837 of these the predicted prevalence of ‘‘CWP 1+’’ ‘‘CWP 2+’’ per thousand affected NDO shifts, or 24.1 percent (95% confidence by 19.6 per thousand, of ‘‘CWP 2+’’ by miners; and 0.7 fewer cases of PMF per interval: 22.7 to 25.5). For this 24.1 12.1 per thousand, and of PMF by 6.0 thousand affected NDO miners. percent, the mean excess above the per thousand.

TABLE VI–1.—BY AGE, AVERAGE REDUCTION IN CASES OF OCCUPATIONAL RESPIRATORY DISEASE EXPECTED TO RESULT FROM IMPLEMENTATION OF SINGLE SAMPLE AND PLAN VERIFICATION RULES

Reduction in cases of occupational respiratory disease per 1,000 affected miners

a Simple CWP (categories 1, 2 or 3) Simple CWP(categories 2 or 3) or PMF b (‘‘CWP 1+’’) PMF (‘‘CWP 2+’’) Type of miner or PMF Age Age Age 65 73 80 65 73 80 65 73 80

Affected Designated Occupation Miners c (DO) ...... 16.6 24.4 30.6 6.3 15.5 28.0 2.8 7.6 16.1 Affected Non-Des- ignated Occupation Miners d (NDO) ...... 1.6 2.3 2.9 0.6 1.5 2.7 0.3 0.7 1.5 Affected Roof Bolter Designated Areas Miners e (RB–DA) ... 13.0 19.6 25.3 4.8 12.1 22.5 2.2 6.0 12.8 a Simple CWP: simple coal workers’ pneumoconiosis. b PMF: progressive massive fibrosis. c Affected Designated Occupation (DO) Miners: includes all miners who work at the 57 percent of the Mechanized Mining Units under consider- ation and who are exposed to dust concentrations similar to the DO, over a 45-year occupational lifetime. Risk reduction estimates are based on reducing the mean dust concentration of 1.15 mg/m 3 (Std. Error = 0.018) observed in 2001 for DOs at the MMUs under consideration. d Affected Non-Designated Occupation (NDO) Miners: includes all underground faceworkers under consideration who are not classified as the DO or a ‘‘designated area roofbolter.’’ Risk reduction estimates are based on reducing the mean dust concentration of 1.08 mg/m 3 (Std. Error = 0.011) observed in 2001 for the NDO sample showing the highest dust concentration on a given MSHA sampling day within a MMU. e Affected Roofbolter Designated Area (RB–DA) Miners: includes all miners working as roofbolters in the 29.4 percent of RB–DAs exhibiting a pattern of recurrent overexposures. Risk reduction estimates are based on reducing the mean dust concentration of 0.94 mg/m 3 (Std. Error = 0.025) observed in 2001 for the RB–DAs under consideration.

MSHA acknowledges that the accumulated over an occupational J.F. Gamble (September, 2000) along assumptions and data used in this QRA lifetime. Some previous commenters, with general comments from Richard are subject to various caveats, but the however, have disagreed with this Lawson. Nicolich and Gamble brought Secretary believes that, on balance, assessment or argued that some aspects up four points that, in the NMA’s view, MSHA’s analysis probably of it ‘‘need further consideration.’’ The cast doubt on our conclusions. These underestimates the increased risk of only commenter offering specific four points will be discussed in turn. material impairment attributable to criticisms was the NMA, which (1) According to Nicolich and individual shift overexposures submitted a critique by M.J Nicolich and Gamble, ‘‘[t]he QRA has made some

26 There are an estimated 6 NDO miners for each is overexposed. This does not include roofbolters working in designated areas, who are treated as a DO miner, and an average of 1.0 of these 6 miners separate group in the present analysis.

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assumptions that have led to incorrect benefitting from the rule would be left MMUs with a pattern of recurrent estimates of the percent of miners who out of the benefit estimates. overexposures nor individual shift would be at reduced risk on the new Furthermore, the second part of their overexposures per se were excluded plan, and have misrepresented the argument (b) is not relevant to the from the data used by Attfield and degree of risk reduction among the calculation of the accumulated effect of Seixas. Therefore, contrary to their miners who would have reduced risk.’’ individual shift exposures, as modeled argument, the existence of such In support of this position, Nicolich and by the Attfield/Seixas model being overexposures does not create a ‘‘bias in Gamble argued that (a) the sample data employed. In support of their position, exposure estimates’’ that ‘‘produces an on which the QRA was based were not Nicolich and Gamble present the overestimate in the toxicity of coal mine independent and (b) that the example of nine laborers who earn dust.’’ Specifically, the value of 1.46 distribution of values by which $10,000 per year and a boss who earns mg/m3 used by Attfield and Seixas to concentrations exceeded the applicable $100,000 per year and point out that the represent the mean concentration for dust standard was likely to be skewed mean income ‘‘is not a good measure of faceworkers already includes those and would, therefore, be better the ‘typical value.’’’ They then propose measurements exceeding the applicable represented by its median than by its (based on no supporting data other than dust standard. Therefore, the mean. They argued, further, that as a that of this example) that the median corresponding value (1.57 mg/m3) consequence of (a), the estimated would be a better measure of the proposed by Nicolich and Gamble ‘‘number of workers that will have ‘‘typical’’ degree by which individual essentially double-counts those reduced risk will likely be too high and shift overexposures exceed the measurements. the degree of risk among these fewer applicable dust standard. (3) According to Nicolich and workers will be under-estimated * * *’’ Nicolich and Gamble fail to consider Gamble, ‘‘[t]here is a background and that, as a consequence of (b), ‘‘the that the objective is not to estimate a prevalence of CWP that is not related to degree of risk reduction among the ‘‘typical’’ degree of excess but, rather, to coal mine dust exposure’’ and miners experiencing over-exposure will estimate the total degree of excess, ‘‘prevalences that occur at zero exposure likely be too large (because of an accumulated over an occupational should be subtracted from the observed overestimate of the intensity of the lifetime. The variable used in the prevalence.’’ Nicolich and Gamble exposure of the over-exposed miners).’’ Attfield/Seixas model is cumulative failed to note that background exposure, defined by the product of prevalences have no bearing on the Both parts of this argument are exposure duration and mean ‘‘intensity’’ expected reductions in risk as flawed. The discussion that Nicolich (i.e., dust concentration), not median calculated and presented in this risk and Gamble offer in support of (a) has intensity. In the example of nine assessment. All estimates of expected nothing to do with independence of laborers and a boss, the total annual risk reduction in this QRA are based on sample data and provides no basis for payout is ten times mean salary, not calculating a difference between two concluding that MSHA has median salary. Similarly, cumulative estimated risks: with and without the overestimated the percentage of miners exposure is given by the product of elimination of individual shift expected to experience reduced risk if exposure duration and mean intensity overexposures accumulated over an overexposures on individual shift are regardless of the shape of the statistical occupational lifetime. Both of these eliminated. It should also be noted that distribution of excess dust estimated risks include the same this part of their argument involves an concentrations. Since MSHA’s use of background effect that is not attributable apparent misunderstanding of how the mean value fully accords with the to coal mine dust exposure. Therefore, MSHA estimated the number of miners Attfield/Seixas model employed, the any background effect is canceled out that would be affected by this rule. commenters have provided no basis for when the difference is calculated. The Contrary to Nicolich and Gamble’s line concluding that MSHA has estimated reduction in risk is, according of reasoning, the estimated percentage overestimated the degree of risk to the Attfield/Seixas model, free of any of shifts exceeding the applicable dust reduction to be expected among miners background effect.27 standard at MMUs exhibiting a pattern experiencing individual shift (4) Nicolich and Gamble criticized the of recurrent overexposures was not used overexposures. use of irregular opacities as indicating to estimate the size of the mining (2) According to Nicolich and coal workers’ pneumoconiosis. population at risk. It is true that the Gamble, ‘‘[t]he Attfield and Seixas However, studies have shown that the number of affected miners used in model does not take into account the prevalences of both small rounded and calculating benefits was estimated from over-exposures identified by MSHA.’’ small irregular opacities increase with the proportion of MMUs exhibiting a Based on this premise, they argue that increasing years worked underground pattern of recurrent overexposures (see ‘‘the estimates of exposure in the model (Amandus et al., 1976; Cockcroft et al., section IX.A.2. Benefits). However, this are less than actual exposure and the E– 1983) and with increasing coal mine estimate would remain the same, R [i.e., exposure-response] slope is dust exposure (Collins et al., 1988). The regardless of the overexposure rate steeper than the actual slope.’’ More relationship between irregular opacities observed for MMUs defined as specifically, they attempt to show that and coal mine dust exposure has been exhibiting a pattern. It is also true that Attfield and Seixas should have observed among both smokers and if a more stringent criterion were used estimated the mean concentration for nonsmokers (Cockcroft et al., 1983). to define MMUs exhibiting a pattern, 3 face occupations to be 1.57 mg/m Amandus et al. (1976) found that then fewer MMUs (and, therefore, fewer 3 rather than 1.46 mg/m . From this, they smoking, age, and years underground miners) would be included in the conclude that ‘‘[t]he toxicity of coal benefit estimates. The rule, however, mine dust is therefore over-estimated.’’ 27 Although it is canceled by subtraction when applies to all MMUs, not just those This argument is based on the false estimating the effect of reducing cumulative defined as exhibiting a pattern of premise that individual shift exposure, the Attfield/Seixas model does, in fact, recurrent overexposures for purposes of overexposures were not included in the incorporate an age-dependent background effect. Therefore, since the model allows for a positive the QRA. Therefore, adopting a more data from which the Atffield/Seixas response at zero exposure, the slope of the stringent criterion for recurrence would model was generated. Contrary to exposure-response relationship is not artificially simply mean that additional miners Nicolich and Gamble, however, neither inflated.

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were all significant predictors of reductions in FEV1 than in FVC evidence of pneumoconiosis (combined irregular opacities. Irregular opacities (resulting in a reduction in the FEV1/ opacities), both by Attfield and Seixas were most common among miners who FVC ratio). The authors suggest that the (1995) and in MSHA’s risk assessment, were older than 30, had bronchitis, and irregular opacities in coal miners may is appropriate for assessing the risk that smoked, but exposure to coal mine dust represent damage to the lungs that coal miners will suffer material was still a significant factor. Collins et causes airways obstruction at different impairment of health or functional al. (1988) found that the small irregular lung locations than that caused by capacity as a result of their respirable opacities were statistically significantly cigarette smoke. Irregular opacities in dust exposures accumulated over a associated with both dust exposure and coal miners may have also been working lifetime. age in U.K. coal miners, but did not find associated with emphysema (Cockcroft a significant relationship with smoking. et al., 1982 b, c). Appendix VI.1 DO Overexposure The exposure-response relationship was Because simple CWP represents an Patterns early stage of a progressive disease, less steep for small irregular opacities In 1998, MSHA attempted to enforce miners who have had a chest x-ray than for small rounded opacities compliance on individual shifts. classified as ILO category 1 or greater (Collins et al, 1988). Therefore, the use Therefore, to compare the 2001 pattern of combined opacities rather than are more likely than those with a clear of excess exposures on individual shifts rounded opacities only may actually x-ray (category 0) to progress to the to that of previous years, MSHA dampen the exposure-response more severe stages of the disease, examined the regular bimonthly DO relationship for pneumoconiosis (e.g., in including the complicated form, PMF sample data submitted by mine Attfield and Seixas, 1995), which is in (categories A, B, or C) (Cochrane 1962; operators in the 10 years from 1990 contrast to the Nicolich and Gamble McLintock et al. 1971; Hurley et al. through 1997 and 1999–2000. The same comment that the inclusion of irregular 1987; Morfeld et al., 1992). PMF has three parameters were considered as opacities would over-estimate the risk of been associated with impaired lung discussed above for 2001: (1) The pneumoconiosis. Nonetheless, the use function, disability, and early death percentage of MMUs exhibiting a of combined opacities is supported by (Rasmussen et al., 1968; Parkes et al., the fact that statistically significant 1983; Miller and Jacobsen, 1985), and pattern of recurrent overexposures, as exposure-response relationships have miners with PMF qualify as totally indicated by at least two of the valid been observed for both types of small disabled due to pneumoconiosis under measurements being above the opacities (rounded and irregular) in coal the Department of Labor’s Standards for applicable dust standard in a given year; miners, and both types have been Determining Coal Miners’ Total (2) for those and only those MMUs associated with adverse health effects. Disability or Death Due to exhibiting recurrent overexposures, the Miners with small rounded opacities Pneumoconiosis under the criteria set overall percentage of production shifts on their chest x-rays were more likely to forth at (20 CFR 718.304(a)). Miners on which the DO was overexposed, as report symptoms of chronic bronchitis with simple CWP were also found to estimated by the percentage of valid (cough and phlegm) than were miners have an increased risk of dying from measurements above the applicable dust without small opacities (category 0/0) pneumoconiosis (as the underlying or a standard; and (3) for the MMUs (Rae et al., 1971). In Collins et al. (1988), contributing cause on the death identified as exhibiting recurrent both small rounded and small irregular certificate), and this risk tended to overexposures, the mean excess above opacities were associated with increase with increasing radiographic the applicable dust standard, as symptoms of chronic cough and category (Kuempel et al., 1995). calculated for just those valid phlegm, and breathlessness, compared Nicolich and Gamble are incorrect in measurements that exceeded the to miners with no opacities observable stating that an implication of that study applicable dust standard in a given year. on chest x-ray. Small irregular opacities is ‘‘no increased mortality associated Although MSHA found minor have been associated with impaired with exposure’’. Instead, Kuempel et al. differences between individual years, lung function (Amandus et al., 1976; (1995) showed a statistically significant there was no statistically significant Cockcroft et al., 1982b,c; Collins et al., exposure-response relationship for upward or downward trend in any of 1988). As Nicolich and Gamble state in cumulative exposure to respirable coal these three parameters over the 1990– their comments, the lung function mine dust and pneumoconiosis 1997 time period (see Table VI–2). impairment reported by Collins et al. mortality. Beginning in 1999, however, there was (1988) was in addition to that After due consideration of the a significant and persistent decrease in attributable to dust exposure. However, questions posed by Nicolich and the average excess above the applicable Collins et al. (1988) found that the Gamble, we have concluded that the dust standard (Parameter #3) for MMUs observed pattern of lung function development of CWP, as detected on exhibiting recurrent overexposures. abnormalities was distinctly different chest x-ray as rounded and/or irregular MSHA attributes this decrease to two from the pattern observed among opacities, poses a significant health risk important changes in the Agency’s smokers. Specifically, the mean FEV1 to miners. Miners who have developed inspection program, beginning near the and mean FVC were significantly lower simple CWP have a materially altered end of 1998. These changes, which both among miners with small irregular risk status, which is a medically and resulted in increased MSHA personnel opacities compared to those with no scientifically reasonable measure of presence, were: (1) An increase in the observable opacities (i.e., chest x-ray material impairment. Miners who have frequency of MSHA dust sampling at category 0/0), and this is the pattern of a chest x-ray with small opacities underground coal mines; and (2) lung function abnormality typically (rounded and/or irregular) are also more initiation of monthly spot inspections at associated with dust exposure in coal likely to report respiratory symptoms mines that were experiencing difficulty miners (Collins et al., 1988). In contrast, and/or to have lung function in maintaining consistent compliance smokers generally had more severe decrements. The use of radiographic with the applicable dust standard.

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TABLE VI–2.—PARAMETERS DESCRIBING OVEREXPOSURE TO RESPIRABLE COAL MINE DUST, BASED ON OPERATOR DO SAMPLES

Parameter #3 1990–1997 Parameter #1 Parameter #2 (mg/m 3) 1999–2000 (Percent) (Percent) 1990–1997 1999–2000

Number of Years ...... 10 10 8 2

Median ...... 52.6 20.1 1.24 1.00

Mean ...... 51.0 20.5 1.26 1.00 (Std. Error) ...... (1.36) (0.30) (0.023) 0.07

2001 ...... 51.6 20.8 1.08 Parameter #1: Percentage of MMUs exhibiting a pattern of recurrent overexposures. Parameter #2: For those MMUs exhibiting a pattern of recurrent overexposures, the percentage of production shifts on which the DO was overexposed. Parameter #3: for those MMUs exhibiting a pattern of recurrent overexposures, the mean excess above the applicable dust standard among valid DO measurements that exceeded the applicable dust standard.

Appendix VI.2 Application of the CWP1+, CWP2+, and PMF as a function Attfield-Seixas Models of cumulative dust exposure (mg-yr/m3). Attfield and Seixas (1995) provide These models all have the following separate logistic regression models for form:

p +× + × + × × = eEqa01 a age a 2exp osure a 3 rank exp osure ( . 1) 1− p

where p is the probability of disease at the public record as part of these models (i.e., MSHA assumed that the a specified age and cumulative proceedings. The coefficient (a3) of value of the indicator variable for exposure. The constant e is the base of ‘‘rank’’ refers to an additional effect of ‘‘rank’’ is zero). the natural logarithms. The empirically cumulative exposure to coal mine dust From equation 1, assuming exposure estimated coefficients a0 (the intercept), in central Pennsylvania or southeastern outside central Pennsylvania and a1, a2, and a3 differ for the three health West Virginia, which the authors southeastern West Virginia, it follows effects considered and are presented in attribute to the rank of the coal mined that the prevalence of disease, assuming Table IV of Attfield and Seixas (op cit). in those areas. Since few mines in those continued exposure at current levels The values for these coefficients are also areas are currently operating, MSHA did and approximate linearity of the shown in the Excel workbook not employ this additional effect in its exposure effect, is (per thousand (RiskRdxn.xlw) MSHA has placed into application of the Attfield-Seixas miners):

y P =×1000 y 1+ y +× + × × where y= ea01 a age a 2( years of exp osure ) (current mean annual exposure) (. Eq 2)

Similarly, the prevalence of disease, attributable to implementation of the assuming reduced cumulative exposure proposed rules is (per thousand miners):

x P =×1000 x 1+ x +× + × × where x= ea01 a age a 2( years of exp osure ) ( reduced mean annual exposure) (. Eq 3)

Note that the ‘‘reduced mean annual overexposures on individual shifts by specific entry are detailed in the EXCEL exposure’’ is the current mean annual calculating (for ages 65, 73, and 80) the workbook, RiskRdxn.xlw, which has exposure (based on 2001 data) reduced differences: been placed into the public record.28 by eliminating overexposures on just ∆= − 28 that percentage of shifts for which PPyx ( Eq . 4) The method used here provides an overexposures have been shown to approximation of the expected risk reduction (D), It is these differences that are presented assuming approximate linearity of the exposure- currently occur. MSHA then estimated response relationship over the exposure range of the impact of eliminating all in Table VI–1. The calculations for each interest. This differs from the method used in the

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VII. Significance of Risk importance of reducing overexposures, production shifts that may not reflect The proposed single sample and plan ‘‘Miners’’ exposure to unhealthy levels production levels on the majority of verification rules prevent respirable coal of coal mine dust leads to the disabling non-sampled shifts. mine dust overexposures by identifying and life shortening ‘‘black lung’’ disease Factors, such as mine ventilation and them and then requiring corrective [CWP].’’ water sprays, mediate the amount of actions. As discussed in the Health The best estimates of reduction in risk airborne respirable dust. Higher for all categories of CWP, for miners Effects Section, CWP is a progressive production is correlated with increased who live to age 73, after a 45-year disease that develops after many years quantities of airborne respirable coal occupational exposure to respirable coal of cumulative exposure to respirable mine dust (Webster, et al., 1990; Haney, mine dust were: 2.3 per 1,000 affected coal mine dust, which may include et al., 1993; O’Green, et al., 1994). Some non-designated occupation miners; 19.6 quartz, and is associated with material earlier commenters, in these per 1,000 affected roofbolter designated impairment of health and pre-mature proceedings and before the Dust areas miners; and, 24.4 per thousand death (see Health Effects Section). The Advisory Committee, have asserted that affected designated occupation miners. joint promulgation of the proposed production is reduced and/or dust These estimates quantitatively single sample and plan verification controls are increased on sampled demonstrate MSHA’s policy shifts. rules would significantly reduce the risk determination that there would be a of development of CWP over an The estimates of risk reductions for significant reduction in risk of CWP as affected miners are based on averages occupational lifetime. The best available a consequence of the promulgation of data were used to conduct the QRA. across those MMUs exhibiting a pattern these proposed rules. of recurrent overexposures. In the QRA, (A) Through the ‘‘Benzene decision,’’ (B) There are many elements that the U.S. Supreme Court provided the agency assumed representative compile a QRA. For each element of a operating conditions on those shifts further guidance on determining and QRA, there may be multiple interpreting the significance of risks. sampled and extrapolated the results to assumptions (e.g., values of variables all production shifts, including those It is the Agency’s responsibility to and sources of data) that could be that were not sampled. If there is determine, in the first instance, what it applied. Various assumptions will differ considered to be a ‘‘significant’’ risk. Some diminished production and increased in the extent to which they are less or engineering controls on sampled shifts risks are plainly unacceptable. If, for more likely to occur (i.e., be example, the odds are one in a billion that compared to the majority of non- a person will die from cancer by taking a representative). Assumptions may also sampled shifts, then this would mean drink of chlorinated water, the risk clearly have relative degrees of impact on the that MSHA is underestimating the could not be considered significant. On the risk estimate, either increasing or reduction(s) in risk to be expected from other hand, if the odds are one in a thousand decreasing it. To the extent that miners these proposed rules. (This is further that regular inhalation of gasoline vapors that experience conditions that differ from discussed in the Benefits sections of the are 2% benzene will be fatal, a reasonable the assumptions in the QRA, their risk PREA and PV preamble). person might well consider the risk of developing CWP will consequently be significant and take appropriate steps to ii. The QRA applies the traditional higher or lower. A ‘‘conservative’’ coal miner work schedule of 8-hours per decrease or eliminate it. Although the assumption in the QRA is one that Agency has no duty to calculate the exact day, 5-days per week, 48-weeks per probability of harm, it does have an results in a higher estimate of risk than year. Many of today’s miners work obligation to find that a significant risk is a less ‘‘conservative’’ assumption longer hours per day, month, and year present before it can characterize a place of would. Estimated benefits (i.e., the than the traditional work schedule. employment as ‘unsafe’ (448 U.S. at 655). number of prevented cases of the These longer work hours increase The industry recognizes the health outcome of concern, e.g., CWP) are miners’ cumulative exposure to significance of maintaining exposures at greater under QRA assumptions that are 29 respirable coal mine dust beyond what or below the applicable dust standard. ‘‘conservative’’ in this sense. MSHA assumed in its risk estimates. The discussion below identifies For example, at the August 16, 2000 Similarly, shorter work hours would various elements of the QRA and how public hearing, the National Mining decrease cumulative exposure below the these choices may have affected the Association’s representative Mr. values assumed in the QRA. estimates in reduction of risk. Watzman, stated ‘‘* * * (MSHA,) we i. The quantitative risk estimates are iii. In their comments on the 2000 don’t want to see any miner contingent on the representativeness of proposed rules, the National Mining overexposed. Our objective has been the exposure data in describing the Association (NMA) criticized MSHA’s and will always be to maintain dust exposures experienced by miners on all use of a 45-year occupational lifetime, levels below the applicable dust shifts. Currently, both operator and stating ‘‘the work experience of the vast standard.’’ The United Mine Workers of MSHA samples 30, may be taken on majority of miners is far less than 45 America’s written comments echoed the years.’’ Irrespective of the specific 29 For example, in a hypothetical QRA there is a duration of a working lifetime of an previous proposed rule, where lower bounds on the reduction in risk estimate for CWP of 2.4 per 1,000 individual worker or cohort of workers, risk reduction were calculated. The calculations in affected miners, based on a relatively conservative health standards are promulgated to the previous proposed rule defined assumption for a particular element (holding all ′ ¥ protect all workers from adverse health D = P y′, Px′, other assumptions constant). A reduction in the risk a a × age outcomes due to occupational exposure where y′ = y/x and x′ = e 0+ 1 estimate for CWP based on an equally likely The previous method results in lower values than although less conservative assumption is 1.0 per for an occupational lifetime. Under the those shown in Table VI–1. For example, for ‘‘CWP 1,000 affected miners, holding all other Mine Act standards are set to protect 1+’’ among affected DO miners at age 73, applying assumptions constant. Assuming that the miners for up to a full working lifetime the previous method to 2001 operator and MSHA population of affected miners is 20,000. The more data would have resulted in a calculated risk conservative assumption would result in an (101 (a)(6)(A) (30 U.S.C. 811(a)(6)(A)): reduction of 16.3 per thousand instead of the 24.4 estimated 48 (2.4/1,000 * 20,000) prevented cases per thousand presented in Table VI–1. MSHA of CWP compared to the less conservative must be taken on a normal production shift (i.e., a believes the method used in the current proposed assumption’s 20 prevented cases of CWP. production shift during which the amount of rule more accurately represents the reduction in 30 Valid MSHA samples require production to be material produced in a MMU is at least 50 percent risk that can be expected if all individual shift at least 60 percent of the average production for the of the average production reported for the last set overexposures are eliminated. last 30 days. Valid operator bimonthly samples of five valid samples) (30 CFR 70.100 (k)(1)).

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The Secretary * * * shall set standards recurrent overexposures. Roofbolter DA protection from occupational exposure which most adequately assure on the basis of MSHA samples were defined as samples to respirable coal mine dust using the best available evidence that no miner will with entity code 900–0 through 999–9 current compliance technology (while suffer material impairment of health or encouraging technological functional capacity even if such miner has and as a type 03 sample. Some MSHA regular exposure to the hazards dealt with by RB–DA samples may have been improvements). For this reason, MSHA such standard for the period of his working incorrectly coded as a type 02 sample— believes the proposed plan verification life. (emphasis added) an occasional problem with the data. rule is technologically feasible. MSHA requires mine operators to utilize all Similarly, the Occupational Safety Those incorrectly coded samples would feasible engineering or environmental and Health Act, Public Law 51–956 not have been included in the QRA and controls, which are specified in the section 6(b)(5) states: therefore the number of RB–DAs with a pattern of recurrent overexposures may mine ventilation plan, to maintain The Secretary, in promulgating standards be underestimated. concentrations of respirable dust in the dealing with toxic materials or harmful vi. Although the effect cannot be work environment of MMUs at or below physical agents under this subsection, shall the applicable dust standard. Mine set the standard which most adequately readily quantified, these rules would assures, to the extent feasible, on the basis of also reduce the cumulative exposure to operators therefore would not be the best available evidence, that no employee respirable coal mine dust for those required to implement engineering or will suffer material impairment of health or miners working on MMUs currently not environmental controls that were not functional capacity even if such employee exhibiting patterns of recurrent technologically feasible. has a regular exposure to the hazard dealt overexposures for either DOs and/or B. Economic Feasibility with by such a standard for the period of his RB–DAs. Thus, the health benefit for all working life. (emphasis added). miners is expected to be greater than MSHA believes that the proposed A 45-year ‘‘working life’’ estimated for the sub-populations of Plan verification rule would be (occupational lifetime) has miners in the QRA. economically feasible for the conventionally been used in QRAs for MSHA has taken steps in the QRA to underground coal mining industry. The occupational settings. For example, conduct a balanced analysis using proposed Plan verification rule would MSHA used a 45-year lifetime in its risk available data. The data in the QRA result in net compliance cost savings of assessment for diesel particulate (66 FR have limitations, preventing MSHA approximately $2.1 million yearly. 5526 and 66 FR 5706). Similarly, OSHA from fully quantifying the frequency (Although implementing the proposed has used a working-life of 45 years in its and average magnitude of overexposure Plan verification rule would cost about QRAs to support health standards (see, of respirable coal mine dust for the $4.5 million yearly, there would be for example, Benzene (52 FR 34460); entire population of underground coal offsetting yearly savings of about $3.8 Bloodborne Pathogens (65 FR 64004); miners whose cumulative exposure to million from reduced citations and the Methylene Chloride (62 FR 1494); and respirable coal mine dust would be elimination of operator abatement 1,3-Butadiene, (61 FR 567467)). To the reduced due to the proposed rules. To sampling; $2.2 million from the extent the proportion of miners’ careers the extent that MSHA has elimination of operator bi-monthly are shorter than 45 years, the actual underestimated overexposure levels sampling; $0.3 million resulting from a benefits may be lower. among underground coal miners, it has reduction in MSHA-ordered mine iv. Due to the progressive nature of underestimated the reduction in risk for closures; and $0.3 million from reduced payout by operators for Black Lung CWP even after occupational exposure CWP and the number of prevented cases cases). Underground coal operators has stopped (see Health Effects Section), of CWP that would be realized through would also obtain a yearly cost savings the best estimate of the occupational- these proposed rules, over an of approximately $3.0 million in lifetime benefit of preventing respirable occupational lifetime (For further reduced penalty costs associated with coal mine dust overexposures is based discussion, see Benefits section of PREA the reduction in operator citations on the expected lifetime for all and preamble). American males, 73 years of age.31 In arising from the proposed plan the future, the extent to which coal VIII. Feasibility Issues verification rule. The proposed plan verification rule would therefore miners have a greater life expectancy, A. Technological Feasibility the realized benefits would increase. For provide a total yearly cost savings MSHA believes that the plan example, since females have a greater (including net reduced penalty costs) of verification rule would be life expectancy than males, expected $5.1 million to the underground coal technologically feasible for the mining benefits will increase if the proportion mining industry. industry. An agency must show that of female miners increases substantially modern technology has at least IX. Preliminary Regulatory Economic in the future. Analysis v. Applicable dust standards for RB– conceived some industrial strategies or DAs are determined separately from the devices that are likely to be capable of A. Costs and Benefits: Executive Order applicable dust standard shared by DOs meeting the standard, and which 12866 industry is generally capable of and NDOs, even though they are on the 1. Compliance Costs same MMU. Since RB–DAs are often adopting. American Iron and Steel The proposed plan verification rule exposed to higher quartz concentrations Institute v. OSHA, (AISI–II) 939 F.2d would impose a yearly net compliance than other miners on the same MMU, 975, 980 (D.C. Cir. 1991); American Iron cost savings to underground coal frequently, the RB–DA’s applicable dust and Steel Institute v. OSHA, (AISI–I) operators of about $2.1 million. standard is lower than that for other 577 F.2d 825 (3d Cir. 1978) at 832–835; Although implementing the proposed miners working on the same MMU. and Industrial Union Dep’t., AFL–CIO v. plan verification rule would cost about Therefore, RB–DAs have their own Hodgson, 499 F.2d 467,478 (D.C. Cir. $4.5 million yearly, there would be percentage that exhibit a pattern of 1974). In designing the plan verification rule, offsetting yearly savings of $6.6 million. 31 Conditional on their having reached 20 years of MSHA has taken into account its The cost savings consist of: $3.8 million age (calculated from: the U.S. Census March 1997, experience and that of the operators to due to reduced citations and the Table 18; U.S. Census March 1997, Table 11). ensure that the rule provides additional elimination of operator abatement

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sampling; $2.2 million resulting from identifying MMUs that experience worker’s pneumoconiosis (simple CWP), the elimination of bi-monthly sampling; excessive exposures. The table below progressive massive fibrosis (PMF), $0.3 million resulting from a reduction shows the probability that an MMU will silicosis, and chronic obstructive in MSHA-ordered mine closures; and not exhibit a pattern of recurrent pulmonary disease (COPD) (e.g., asthma, $0.3 million resulting from reduced overexposures (i.e., 2 or more chronic bronchitis, emphysema) (See Black Lung payouts by underground overexposures on 30 randomly sampled the Health Effects, section V., of the coal operators. These costs include net shifts out of 384 working shifts in a plan verification proposed rule and first year compliance costs of year) when there are actually ‘‘n’’ section VII of the single-shift sample approximately $2.1 million. noncompliant shifts during the year. For proposed rule (65 FR 42068) for a more 2. Benefits example, if an MMU exceeds the complete discussion). Cumulative applicable standard on 25 shifts during exposure to respirable coal mine dust is This benefits analysis is in support of a year, there is a 40 percent probability the main determinant in the the proposed single sample and plan that fewer than two of the 30 samples development of both simple CWP and verification rules, and updates for that MMU would be taken on those PMF although other factors, such as the information used in the single-shift 25 shifts. Therefore, there is a good percentage of quartz in the respirable sample (65 FR 42068) and plan chance that such an MMU would not be dust and the type of coal, also affect the verification proposed rules (65 FR identified as having a pattern of risk of miners developing simple CWP 42122). It has been updated to include recurrent exposures. It should also be and PMF (Jacobsen, et al., 1977; Hurley, 32 the revised QRA; the reduction in the noted, however, that only 6.5 percent et al., 1987; Kuempel, et al., 1995; number of active mines (and miners); (i.e., 25/384) of production shifts would, Attfield and Morring, 1992; Attfield and and more recent information on the on average, be out of compliance at such Seixas, 1995). The true magnitude of DOL’s Black Lung Compensation an MMU. This is substantially below the occupationally induced simple CWP Program. As a result, MSHA believes it average of 20 percent of shifts found out and PMF among today’s coal miners is has more comprehensively quantified of compliance at MMUs MSHA has unknown, although prevalence the expected reduction in risk of CWP identified as exhibiting a recurrent estimates are available from various and the associated benefits (i.e., the pattern. surveillance systems. The overall number of prevented cases of CWP) for prevalence rate of simple CWP, those miners currently subject to a TABLE IX–2–1.—RELATIONSHIP BE- Categories 1, 2, 3, and PMF combined pattern of recurrent overexposures to TWEEN THE NUMBER OF NONCOMPLI- was 2.8 percent among all miners respirable coal mine dust.33 examined in the Miners’ Choice MSHA notes that the methodology ANT SHIFTS AND THE PROBABILITY OF program during FY 2000–2002 (see will almost certainly lead to an NOT DETECTING A PATTERN OF RE- underestimate of the number of MMUs CURRENT OVEREXPOSURES FOR A Health Effects discussion). The combined prevalence rate of simple with recurrent overexposures. This is SINGLE MMU due to the fact that the agency must rely CWP and PMF for underground coal on samples taken for 30 or fewer shifts Probability (%) of miners was 3.8 percent during the same Number of noncompliant not being time period. Studies from the Coal each year for each MMU. MSHA shifts 34 identified 35 estimates that each MMU averages 384 Workers X-ray Surveillance Program production shifts per year, so samples (CWXSP) indicate a decline in the 5 ...... 94.9 prevalence of CWP from 11 percent in are taken for only about 8 percent of all 10 ...... 82.0 shifts. An MMU exhibits a pattern of 15 ...... 67.0 the 1970s to 2.8 percent in the sixth recurrent overexposure when valid 20 ...... 52.5 round of CWXSP (1992–1996)(NIOSH, samples at the MMU exceed the 25 ...... 40.0 Table 2–11, 1999). applicable dust standard on at least two 30 ...... 29.7 The proposed single sample and plan shifts during a year. MSHA uses data for 35 ...... 21.6 verification rules present MSHA’s those MMUs exhibiting such a pattern 40 ...... 15.4 strengthened plan to meet the Mine 45 ...... 10.9 Act’s requirement that a miner’s to estimate miners’ overexposures and 50 ...... 7.5 the reduction in dust that would be exposure to respirable coal mine dust be 55 ...... 5.1 at or below the applicable dust standard inhaled by miners if dust levels were 60 ...... 3.5 reduced to the exposure limit on every 65 ...... 2.3 on each and every shift. shift. 70 ...... 1.5 The QRA estimates the reduction in Due to the fact that only a small 75 ...... 1.0 risk for CWP as a result of reducing fraction of shifts are sampled, this 80 ...... 0.6 respirable coal mine dust concentrations approach will very likely underestimate 85 ...... 0.4 over a miners’ 45-year occupational the total number of shifts with excessive 90 ...... 0.3 lifetime to be no more than the 95 ...... 0.2 applicable dust standard on just that exposures. There is no straightforward 100 ...... 0.1 way to determine the extent of the percentage of shifts currently exhibiting 36 underestimate, but the following 34 Number of individual shift overexposures a pattern of recurrent overexposures. illustrates the likelihood of not out of 384 shifts in a year. The term ‘‘affected’’ is used to identify 35 Probability (%) that an MMU will fail to those miners who work on a MMU or display a pattern of recurrent overexposures, 32 The revised QRA is published in full in section based on 30 sampled shifts, given ‘‘n’’ indi- RB–DA where there is a recurrent IV.b of the 2003 single sample reopening notice and vidual shift overexposures out of 384 shifts in section VI of the 2003 plan verification NPRM. The a year. 36MMUs with a recurrent pattern of overexposure revised QRA has been expanded to include are defined as those MMUs with two or more of the quantitative estimates of the reduction in CWP for Occupational exposure to excessive DO samples exceeding the applicable dust standard. affected roofbolters working in designated areas levels of respirable coal mine dust, RB–DAs with a recurrent pattern of overexposure (RB–DA). which includes quartz in varying are defined as those with two or more RB–DA 33 The pattern of recurrent overexposure is proportions, imposes significant health samples exceeding the applicable dust standard. defined by a MMU having any combination of two (See the QRA section IV.b of the 2003 single sample or more samples in excess of the applicable dust risks. These include the following reopening notice and section VI of the 2003 plan standard within a one-year period. adverse health outcomes: simple coal verification NPRM for details).

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pattern of overexposure to respirable • The number of RB–DAs on a shift, the distribution of MMUs by mine size, coal mine dust. There are three types of varied by mine size. (See Table IX–2–3 the estimates of affected populations of affected miners for whom reduction in for specific numbers). RB–DAs are presented in their own risk estimates were calculated: Since NDOs and the DO on the same table (Table IX–2–3). The estimated sub- • DOs: Designated Occupation MMU share the same pattern of populations of affected miners working Miners. recurrent overexposures (i.e., 57.0 in the RB–DAs are calculated as follows: • NDOs: Faceworkers neither percent) and the same distribution of (1) The distribution of active RB–DA classified as a DO nor subject to a MMUs by mine size and number of entities was recently determined by separate applicable dust standard production shifts, the estimates of mine size and number of production applicable to a Designated Area. affected populations of DOs and NDOs shifts (MSHA, Table September 4, • RB–DA: Roofbolter Designated Area are both included in Table IX–2–2. The 2002). estimated sub-populations of affected Miners. (2) The number of RB–DA entities that Since DOs and NDOs share the same miners working in DOs and NDOs are calculated as follows: exhibit a pattern of overexposures (29.4 applicable dust standard, the definition percent, 194/659 RB–DAs) was of recurrent pattern of overexposure for (1) The distribution of active MMU entities was determined by mine size determined using operator and MSHA DOs and NDOs is the same. It is samples for respirable coal mine dust determined by the pattern of recurrent and number of production shifts (MSHA, Table, July 10, 2002). collected during the calendar year 2001 overexposures observed for DOs. This (MSHA data file: RB–DA2001.zip) pattern of recurrent overexposure is (2) The number of MMU entities that (3) MSHA estimated the number of sometimes referred as the MMU’s exhibited a pattern of overexposures for DOs (57.0 percent) was determined RB–DA entities affected by recurrent pattern of recurrent overexposures. using operator and MSHA samples for overexposures by simultaneously Applicable dust standards for RB– respirable coal mine dust collected applying the percentage of RB–DAs DAs are determined separately from the during the calendar year 2001 (MSHA found to have patterns of recurrent applicable dust standard shared by DOs data file: DO_2001.zip). overexposure (29.4 percent) to the and NDOs on the same MMU. Since (3) MSHA estimated the number of number and type of active RB–DA RB–DAs are often exposed to higher DOs to have been affected by recurrent entities by mine size (449 active RB– quartz concentrations than other overexposures by simultaneously DAs; MSHA, Table May 14, 2002) and occupations (miners) on the same MMU, applying the percentage of MMUs found the distribution of production shifts by frequently, the RB–DA’s applicable dust to have patterns of recurrent mine size mentioned in steps (1) and standard is more stringent (i.e., a lower overexposure (57.0 percent) to the (2). MSHA estimates there would be 132 applicable dust standard) than that for number and type of active MMU entities affected active RB–DAs. other occupations working on the same by mine size (833 active MMUs; MSHA, (4) The number of miners working in MMU. A separate pattern of recurrent Table May 14, 2002) and the overexposure is defined for the RB–DAs. an RB–DA entity is proportional to the distribution of production shifts by number of shifts each RB–DA is in To predict the benefits, MSHA mine size mentioned in steps (1) and applied its best estimate of reduction in production per day. The distribution of (2). MSHA estimates there would be 475 the number of affected RB–DA entities risk of CWP for each type of affected affected active MMUs. miner (DO, NDO, and RB–DA) to by production shifts (determined in step (4) The number of miners working in 3) is applied to the estimated number of estimated sub-populations of those the DO position is proportional to the affected miners. roofbolters per RB–DA entity. The number of shifts each MMU is in typical number of miners per RB–DA The factors taken into account to production per day. The distribution of estimate each of the sub-populations varies by mine size. It is MSHA’s the number of affected MMU entities by experience that, on average, one are: production shifts (from step 3) is • A recent snapshot of the number of roofbolter works within the RB–DA in applied to the estimated number of DOs coal mines with fewer than 20 active MMUs and RB–DAs. (MSHA, per MMU entity. Typically, there is one Table, May 14, 2002) employees, one and one half in coal miner for each DO for each shift. mines with 20 to 500 employees, and • The pattern of recurrent (5) Typically, six other miners two in coal mines with more than 500 overexposures for affected MMUs and operating as NDOs simultaneously work employees. RB–DAs. on the same MMU. Therefore, the • The distribution of MMUs by mine number of affected NDOs is six times (5) Table IX–2–3 presents the size (i.e., fewer than 20 employees; 20 the number of affected DOs. estimated number of affected RB–DAs to 500 employees; and, more than 500 (6) Table IX–2–2 presents the and miners by mine size and number of employees) and the number of estimated number of affected MMUs, production shifts. The total number of production shifts (i.e. 1, 2, or 3) (MSHA, DOs, and NDOs, by mine size and affected miners working within an RB– Table, July 10, 2002 for DOs and NDOs; number of production shifts. The total DA is estimated to be 368. and MSHA, Table, September 4, 2002). number of affected DO and NDO miners The total number of affected miners • The average number of miners on a is estimated to be 6,307. working within the specified DO, NDO, shift for each category. Since RB–DAs and the combination of and RB–DA positions among the • One DO on each MMU. DOs and NDOs do not share the same faceworkers in underground coal mines • Six NDOs for each MMU. pattern of recurrent overexposures, nor is estimated to be 6,675.

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TABLE IX–2–2.—ESTIMATED NUMBER OF AFFECTED MECHANIZED MINING UNITS a (MMUS) AND AFFECTED UNDERGROUND COAL MINERS, BY PRODUCTION SHIFTS AND MINE SIZE

Mine size by number of employees Totals

Greater than 500 Total Number of Less than 20 employees 20 to 500 employees employees NMUs DOS b NDO c affected production n= n= n= miners shifts NMUs DOS b NDO c NMUs DOS b NDO c NMUs DOS b NDO c n= n= n= n= n= n= n= n= n= on NMUs

One ...... 98 98 588 24 24 144 0 0 0 122 122 732 854 Two ...... 16 32 192 264 528 3,168 0 0 0 280 560 3,360 3,920 Three ...... 0 0 0 55 165 990 18 54 324 73 219 1,314 1,533

Totals .. 114 130 780 343 717 4,302 18 54 324 475 901 5,406 6,307 a Affected MMUs in production are estimated by applying the observed percentage of MMUs’ production shifts by mine size (as of July 10, 2002) to the snapshot of active MMUs as of May 14, 2002, by mine size, and multiplied by 0.570 (since fifty-seven percent of MMUs have a pat- tern of recurrent overexposures) (MSHA Table, July 10, 2002; MSHA Table, May 14, 2002). Where: b DO = Designated Occupational Miners = (MMUs * 1 * production shifts). c NDO = Non-designated Occupational Miners = (MMUs * 6 * production shifts).

TABLE IX–2–3.—ESTIMATED NUMBER OF AFFECTED ROOFBOLTER DESIGNATED AREAS (RB–DAS) AND AFFECTED UNDERGROUND COAL MINERS, BY PRODUCTION SHIFTS, AND MINE SIZE

Mine Size by Number of Employees

Less Than 20 Employees 20 to 500 Employees Greater than 500 Totals Number of Affected RB–DAs a Employees Total miners RB–DAs Miners RB–DAs Miners RB–DAs Miners RB–DAs on affected Number of production shifts n= n= n= n= n= n= n= RB–DAs

1 ...... 22 22 6 9 0 0 28 31 2 ...... 5 10 83 249 0 0 88 259 3 ...... 0 0 12 54 4 24 16 78

Total ...... 27 32 101 312 4 24 132 368

Number of Miners per RB–DA ...... 1.0 1.5 2.0 ...... 1 Affected Roofbolter Designated Areas (RB–DAs) in production are estimated by applying the observed percentage of RB–DAs’ production shifts by mine size (as of September 4, 2002) to the snapshot of active RB–DAs as of May 14, 2002, by mine size, and multiplied by 0.294 (since 29.4 percent of RB–DAs have a pattern of recurrent overexposures) (MSHA Table, July 10, 2002; MSHA Table, May 14, 2002). The num- ber of miners per RB–DA varies with mine size and is applied to the estimated number of RB–DAs and the number of production shifts to deter- mine the total number of affected faceworkers.

The total number of cases of simple percent of MMUs and the 29.4 percent The benefits that would accrue to coal CWP categories 1, 2, 3 or PMF that of RB–DAs determined to exhibit a miners exposed to respirable coal mine would be prevented is determined by pattern of recurrent overexposures, by dust and to operators, and ultimately to applying the estimated number of limiting their exposures to respirable society at large, are substantial and take affected miners to our best estimates of coal mine dust to no more than the a number of forms. These proposed reductions in risk. The estimates of applicable dust standard on each and rules would reduce a substantial health reductions in risk for the three sub- every shift. For all categories of simple risk to underground coal miners, populations of affected miners (24.4 per CWP and PMF combined, MSHA lowering the potential for illnesses and thousand DOs, 2.3 per thousand NDOs, estimates a minimum of 42 fewer cases premature death and their attendant and 19.6 per thousand RB–DAs) are among affected miners than would costs to miners, their employers, their applied to the respective estimates of otherwise occur without the families, and society. affected sub-populations of faceworkers promulgation of the proposed single These rules should realize a positive (901 DOs, 5,406 NDOs, and 368 RB– sample and plan verification rules. economic impact on the Department of DAs).37 Table IX–2–4 presents a Thirteen of these cases would be the Labor’s (DOL’s) Black Lung Program and summary of the estimated number of most severe form of coal miner’s relatedly on operators. The Black Lung cases among groups of simple CWP and pneumoconiosis, PMF, and as such, Program compensates eligible miners PMF that would be prevented among these cases could be interpreted as and their survivors for benefits under the affected miners working at the 57.0 prevented premature deaths due to the Black Lung Benefits Act. This program provides monthly payments occupational exposure to respirable coal 37 and medical benefits (diagnostic and See the Quantitative Risk Assessment (section mine dust. Since simple CWP is a VI. of the Plan Verification Notice of Proposed Rule treatment) to miners who are progressive disease and predisposes the Making in today’s Federal Register) for details determined to be totally disabled by describing the methodology used to calculate the development of PMF, it is important black lung disease, including cases of reduction of risk among the affected sub- that simple CWP also be prevented populations and Table VI–1 for a summary of PMF and simple CWP. In 1986, DOL’s reduction in risk estimates. (Balaan, et al., 1993). Employment Standards Administration

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reported that 12 percent of approved exposure levels in underground coal (8) Longer work hours increase miners’ cases to receive benefits within the mines. cumulative exposure to respirable coal mine Black Lung Program were identified as The degree to which the exposure dust, which includes quartz, beyond what cases of PMF based on chest level of respirable coal mine dust on was assumed in our risk estimates (‘‘Length sampling shifts may not be of Shift’’ survey, MSHA Office of Coal Mine radiographs, while 64 percent had Safety and Health); and simple CWP based on chest radiographs representative of typical exposure levels (9) Because of heavy, physical work, some (ESA, 1986). For miners who stopped is affected by the following factors: miners may have higher breathing rates and working in coal mines after 1969 and for (1) There exists a positive relationship inhale more respirable coal mine dust, whom DOL can establish that the miner between coal production and generation of including quartz, than other miners exposed worked for the same operator for at least respirable coal mine dust. While other factors to the same airborne dust concentrations. may mediate the amount of airborne one calendar year, and that miner had respirable dust, such as ventilation and water Although the effects cannot readily be at least 125 working days in that year, sprays, on average, higher production is quantified, to the extent that these rules that operator is financially responsible correlated with increased quantities of will also reduce the cumulative for the miner’s black lung benefits airborne respirable coal mine dust (Webster, exposure to respirable coal mine dust payments. If a responsible operator et al., 1990; Haney, et al., 1993; O’Green, et among some miners working in those al., 1994); cannot be identified for an eligible MMUs currently not exhibiting a pattern miner, benefits payments are made by (2) Current sampling procedures permit sampling measurements to be taken at the of overexposures, it is reasonable to the Black Lung Disability Trust Fund. mid-range of the distribution of the level of expect an incremental benefit among To the extent that the proposed single production—MSHA sampling measurements that sub-population of coal miners. sample and plan verification rules must be taken on shifts with production at Likewise, to the extent that the reduce overexposures to respirable coal least 60 percent of the average production cumulative exposure to respirable coal mine dust (which includes quartz), during the last 30 days and the operator must mine dust affects other adverse health have at least 50 percent of average there should be fewer Black Lung outcomes, such as silicosis and chronic Program cases. Therefore, over time, the production for the last valid set of five bimonthly samples for MSHA and operator obstructive pulmonary disease, it is associated financial outlay by samples, respectively; reasonable to expect a reduction in the responsible operators through either (3) Miners have reported, and MSHA data number and/or severity of cases for payments made into the Black Lung have demonstrated lower levels of these diseases among underground coal Disability Trust Fund, insurance production on sampling shifts versus non- miners. premiums, or direct payments of black sampling shifts; 39 Further, MSHA firmly believes that lung benefits should be lower than (4) On some sampling shifts, miners have non compliance determinations based reported that more engineering controls may would otherwise occur. A decrease in on single-sample measurements will black lung beneficiaries could help be engaged than on other shifts, thus reducing the measured amount of respirable significantly improve working reduce the financial obligation of the coal mine dust; conditions for miners because Black Lung Program (see discussion in (5) MSHA analyses have demonstrated, overexposures will be more readily Chapter IV of the accompanying PREA even when controlling for production, in identified and appropriate corrective for details: http://www.msha.gov/ mines with fewer than 125 employees, on action will be taken to reduce respirable FLEX.HTM). In fiscal year 2000, 386 continuous mining MMUs, respirable coal dust levels. This is because individual mine dust exposures were much higher claims for Black Lung Benefits were sample results will not be masked due accepted as new cases; 71 percent (273 during the unannounced Spot Inspection Program (SIP) sampling shifts than on shifts to the averaging of multiple samples. cases) are the financial responsibility of operators sampled—this is consistent with The health effects of individual shift coal operators (ESA, OWCP 2000 the effect of increasing engineering controls overexposures was addressed in Annual Report).38 on shifts during which bimonthly samples Consolidation Coal Company versus MSHA’s quantitative estimate of are conducted compared to the level of use Secretary of Labor 8 FMSHRC 890, benefits demonstrates and qualitative of engineering controls on shifts for which (1986), aff’d 824 F. 2d 1071, (D.C. Cir. discussions punctuate that these the operator does not expect sampling to be 1987). In that case, the Commission proposed rules will have a significant conducted, given the same production 40 found that each episode of a miner’s positive impact on the health of the level; (6) Across mine size, designated area overexposure to respirable dust nation’s coal miners when promulgated. samples have had greater dust levels for significantly and substantially Yet, due to the limitations in these data, shifts on which unannounced compliance contributes to the health hazard of MSHA believes its benefits estimates are sampling occurred compared to operator contracting chronic bronchitis or coal likely to understate the number of cases sampling shifts—in one study they differed workers pneumoconiosis, diseases of a of simple CWP and PMF that would be by at least a factor of 40 percent in large fairly serious nature. prevented over an occupational lifetime. mines and 100 percent in the smallest Since the proposed single sample rule mines;41 As discussed in the significance of risk would also apply to surface coal mines, sections of the previously published (7) Existing MSHA technical information indicates that some reduction in production it is reasonable to expect that the single-shift sample (65 FR 42068) and levels occurs during some sampling periods cumulative exposure of some surface plan verification (65 FR 42122) notices on longwalls (Denk, 1990); coal miners would also be lowered, and as revised in the plan verification providing them with increased health NPRM, the data used to estimate the 39 Mine Safety and Health Administration. protection. average overexposure which will be ‘‘Report of the Statistical Task Team of the Coal As indicated elsewhere in this prevented may not represent typical Mine Respirable Dust Task Group.’’ September preamble, three significant studies have environmental conditions and the 1993. 40 Mine Safety and Health Administration. been published in the last 10 years that associated respirable coal mine dust ‘‘Report of the Statistical Task Team of the Coal examined the current federal program to Mine Respirable Dust Task Group.’’ September control respirable coal mine dust in U.S. 38 The OWCP 2001 report is not representative of 1993. mines. They include the MSHA current trends because of recent changes to rules 41 Mine Safety and Health Administration. governing OWCP proceedings effective January 20, ‘‘Report of the Statistical Task Team of the Coal Respirable Dust Task Group Report, 2001 (Peed, September 12, 2002). Therefore, MSHA Mine Respirable Dust Task Group.’’ September NIOSH’s Criteria Document on used information from the OWCP 2000 report. 1993. Pp. 211–212. Occupational Exposure to Respirable

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Coal Mine Dust, and the Report of the conditions to which they are routinely year, for the past several years, supports Secretary of Labor’s Advisory exposed. MSHA’s belief that the true lifetime Committee on the Elimination of The requirement that operator occupational health benefits of the Pneumoconiosis Among Coal Workers. sampling results be used by MSHA to proposed rules are higher than MSHA The individuals that contributed to make compliance determinations has has been able to quantify. Even these reports represented a wide been unfairly perceived by some as assuming that over time, the number of spectrum of society including health fundamentally flawed because operators new claims would decline in future professionals, mine operators, miners allegedly have conflicting objective of years simply due to the continuing and their representatives, academia, avoiding citations and protecting miner decline in the number of coal miners, engineers, lawyers, physicians, and health. This perception is difficult to MSHA expects that assuring future health and safety specialists. While address. As recommended by the exposures are maintained below the recognizing that significant progress has Advisory Committee, this proposal applicable dust standard would reduce been made to reduce respirable dust eliminates the requirement that operator the number of new cases of CWP than levels in coal mines, these reports all samples be used for compliance would otherwise occur. concluded that there are existing purposes. Operators will only be subject In addition to the cases of simple practices in the federal program that to enforcement action on their sample CWP and PMF that would be prevented should be changed to provide miners results if they fail to take action to among the miners working on affected with improved health protection. This correct any overexposure. Since only MMUs and RB–DAs, other health rulemaking was initiated to address MSHA samples taken during benefits would also be realized because many of the recommendations outlined unannounced inspections will be used the cumulative exposure to respirable in those studies. to make compliance determinations, any coal mine dust would be limited to no real or perceived opportunity by mine The primary benefit of the changes more than the applicable standard on operators to inappropriately impact recommended by the authors of the each and every shift. Health benefits sampling results will be eliminated or various studies, and subsequently in associated with a reduction in significantly reduced. exposures to respirable coal mine dust this proposal, is to reduce occupational All of the studies recognized that would include a decrease in incidence lung disease among coal miners by significant improvements in preventing of silicosis, asthma, chronic bronchitis, improving the existing federal program overexposure can occur if real-time and emphysema. to control exposure to respirable coal continuous monitors were available. mine dust and quartz. That benefit is Such devices would allow exposure All cases of simple CWP and PMF, addressed in detail in this section. levels to be monitored during the which MSHA expects to be prevented There are, however, other significant production shift and action could be through promulgation of the single intangible benefits that will result from taken during the shift to prevent sample and plan verification rules and these program improvements. overexposure as miners approached the attributable to eliminating individual As stated in the report of the Advisory upper limit. This is in contrast to the shift overexposures, are not expected to Committee, one of MSHA’s primary current system that requires samples to materialize immediately after objectives must be to restore the be sent to a laboratory for analysis and, overexposures have been substantially confidence of individual miners that the as a result, only allows for reduced or eliminated. Because these federal program to control respirable overexposures to be recorded rather diseases typically arise after many years dust will protect their health. The than prevented. This proposal of cumulative exposure, allowing for a testimony of miners and their recognizes that the potential for the period of latency, and the pre-existing representatives made during the introduction of such continuous occupational exposure histories of deliberations of at least two of the study monitoring devices is likely in the near members of the current coal mining groups found that coal miners believe future. As a result, provisions are workforce, the beneficial effects of that MSHA and operator sampling included for the use of such instruments reducing exposures are expected to results are not representative of the in lieu of the current approved sampling become evident only after a sufficient mine environment to which they are devices. Accordingly, this proposal time has passed so that the reduction in exposed during normal mining encourages the development and cumulative exposure could have its operations. Consequently, many miners introduction of this new technology into effect. The total realized benefits would believe that overexposures are not being coal mines to benefit miner health. not be fully evident until after the identified and corrected. This belief is MSHA’s belief that the projected 42 youngest of today’s underground coal attributable to several factors including, prevented cases of simple CWP and miners retire. If the size of this MSHA’s policy of accepting as valid PMF over a 45-year working life likely workforce substantially changed in the samples that were taken at production understates the true number of cases of future and the projected pattern of levels significantly below normal; the simple CWP and PMF is further prevented overexposures remained the use of dust control measures during supported by the fact that during the same, the number of cases of prevented sampling that are not incorporated in past few years, the Black Lung Benefits simple CWP and PMF would need to be the approved ventilation plan; and the Program has been approving roughly adjusted to account for the change. averaging of multiple-shift sample 400 claims each year. Most of these Various data, assumptions and results which can mask individual claims come from individuals whose caveats were used to conduct the overexposures and prevent action from occupational exposure to respirable coal benefits analyses. Therefore, MSHA being taken to correct the condition. All mine dust occurred under the current requests any information which would of these practices are addressed in this respirable coal mine dust program, enable it to conduct more accurate proposal and, therefore, should including the 2.0 mg/m3 standard, analyses of the estimated health benefits significantly improve miner confidence which began in 1972 (ESA, September of the single sample and plan that MSHA and operator sampling 19, 2002). The observation that roughly verification rules, both individually, results are typical of the operating 400 claims have been approved each and in combination.

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TABLE IX–2–4.—OVER A WORKING LIFETIME AMONG AFFECTED MINERS, ESTIMATED NUMBER OF CASES OF CWPa AND PMFb PREVENTED DUE TO THE IMPLEMENTATION OF SINGLE SAMPLE AND PLAN VERIFICATION

Simple CWP categories 1, Simple CWP categories 2 or PMF Affected 2, 3 or PMF 3 or PMF Type of miner miners, Prevented Prevented Reduction Prevented n= Reduction Reduction cases, c cases, cases, in risk in risk n= in risk n= n=

Affected Designated Occupational Minersd ...... 901 24.4/1000 22.0 15.5/1000 14.0 7.6/1000 6.8 Affected Non-Designated Occupational Minerse ...... 5,406 2.3/1000 12.4 1.5/1000 8.1 0.7/1000 3.18 Affected Roofbolters in Designated Areasf ...... 368 19.6/1000 7.2 12.1/1000 4.5 6.0/1000 2.2

Total g ...... 6,675 na 42 na 27 na 13 a Simple CWP: simple coal workers’ pneumoconiosis. b PMF: progressive massive fibrosis. c Reduction in Risk per 1,000 affected miners, over a 45-year working lifetime, at age 73. d Affected Designated Occupation (DO) Miners: includes all miners who work at the 57.0 percent of the Mechanized Mining Units under consid- eration and who are exposed to dust concentrations similar to the DO, over a 45-year occupational lifetime. e Affected Non-Designated Occupation (NDO) Miners: includes all underground faceworkers under consideration who are not classified as the DO or a designated area roofbolter. f Affected Roofbolter Designated Area (DA) Miners: includes all miners working as roofbolters in the 29.4 percent of roofbolter designated areas exhibiting a pattern of recurrent overexposures. g The total miners affected (6,675) is a sub-population of the estimated number of underground coal miners (12,317) working at the mine face.

B. Regulatory Flexibility Certification with the Chief Counsel’s office on these estimated coal revenues, well below the and Regulatory Flexibility Analysis rules, or any written communications, level suggesting that they might have a MSHA has consulted with the Chief will be placed in the rulemaking record. significant economic impact on a Counsel for Advocacy on this proposed Using both definitions of small mines, substantial number of small entities. rule and on the Agency’s certification of one with fewer than 20 employees and Accordingly, MSHA has certified that no significant economic impact on a one with 500 or fewer employees, the this proposed rule would not have a substantial number of small entities estimated compliance costs of the significant economic impact on a covered by this rule. Consistent with proposed rule is either negative or substantial number of small entities that Agency practice, notes of any meetings substantially less than 1 percent of are covered by this proposed rule.

TABLE IX–3.—ESTIMATED YEARLY COSTS OF THE PROPOSED PLAN VERIFICATION RULE RELATIVE TO YEARLY REVENUES FOR UNDERGROUND COAL MINES [dollars in thousands]

PV rule Underground Costs as Mine size net yearly coal mine percentage costsa revenuesb of revenues

< 20 emp...... ($685) $201,700 N/A ≤500 emp...... ($2,535) 5,644,194 N/A a Estimated yearly costs are composed of ‘‘adjusted’’ first year costs that have been annualized plus annual costs. b Data for revenues derived from: U.S. Department of Labor, Mine Safety and Health Administration, 2000 PEIR data; and U.S. Department of Energy, Energy Information Administration, Coal Industry Annual 2000, January 2002, p. 206.

X. Other Statutory Requirements the Paperwork Reduction Act of 1995 increase of 7,609 burden hours and (PRA95). The proposed plan verification related costs of $371,273. Table VII–2(a) A. Unfunded Mandates Reform Act of rule has first year only burden hours in the PREA shows that with respect to 1995 (those that occur only in the first year) every year that the proposed plan For purposes of the Unfunded and annual burden hours (which occur verification rule is in effect (including Mandates Reform Act of 1995, this rule in the first year and every year the first year), there would be a net does not include any Federal mandate thereafter). decrease of 42,538 burden hours and a that may result in increased related cost reduction of $1,075,747. In the First Year of the Plan Verification expenditures by State, local, and tribal Proposed Rule In the Second Year of the Proposed Plan governments, or increased expenditures Verification Rule and for Every Year by the private sector of more than $100 In the first year the proposed plan Thereafter million. verification rule is in effect, there would be a net decrease of 34,929 burden After the first year of the proposed B. Paperwork Reduction Act of 1995 hours and a related cost reduction of plan verification rule, those burden The proposed plan verification rule $704,474. hours and related costs occurring only contains information collections which Table VII–2 in the PREA shows that in the first year would no longer occur, are subject to review by the Office of with respect to first year-only burden and what remains are only the annual Management and Budget (OMB) under hours and costs, there would be a net burden hours and related costs.

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Therefore, in the second year of the our Web site at http://wwww.msha.gov/ compliance costs on Indian tribal proposed plan verification rule and for REGSINFO.HTM. governments. every year thereafter, there would be a C. National Environmental Policy Act H. Executive Order 13132: Federalism net decrease of 42,538 burden hours and a related cost reduction of $1,075,747. The National Environmental Policy MSHA has reviewed this rule in We invite public comments and are Act (NEPA) of 1969 requires each accordance with Executive Order 13132 particularly interested in comments Federal agency to consider the regarding federalism, and has which: environmental effects of proposed determined that it does not have 1. Evaluate whether the proposed actions and to prepare an ‘‘federalism implications.’’ The rule collection of information (presented Environmental Impact Statement on does not ‘‘have substantial direct effects here and in Chapter 7 of the PREA for major actions significantly affecting the on the States, on the relationship the proposed plan verification rule) is quality of the human environment. between the national government and necessary for the proper performance of MSHA has reviewed the proposed the States, or on the distribution of the functions of MSHA, including standard in accordance with the power and responsibilities among the whether the information would have requirements of the NEPA (42 U.S.C. various levels of government.’’ practical utility; 4321 et seq.), the regulation of the I. Executive Order 13211: Energy 2. Evaluate the accuracy of our Council on Environmental Quality (40 estimate of the burden of the proposed CFR part 1500), and the Department of MSHA has reviewed this proposed collection of information, including the Labor’s NEPA procedures (29 CFR part rule in accordance with Executive Order validity of the methodology and 11). As a result of this review, MSHA 13211 regarding the energy effects of assumptions used; has preliminarily determined that this Federal regulations and has determined 3. Enhance the quality, utility, and proposed standard will have no that this proposed rule does not have clarity of the information to be significant environmental impact. any adverse effects on energy supply, collected; and distribution, or use. Therefore, no 4. Minimize the burden of the Commenters are encouraged to submit their comments on this determination. reasonable alternatives to this action are collection of information on necessary. respondents, including through the use D. Executive Order 12630: of appropriate automated, electronic, Governmental Actions and Interference J. Executive Order 13272: Proper mechanical, or other technological With Constitutionally Protected Property Consideration of Small Entities in collection techniques or other forms of Rights Agency Rulemaking information technology, e.g., permitting In accordance with Executive Order electronic submissions of responses. This proposed rule is not subject to 13272, MSHA has thoroughly reviewed We have submitted a copy of this Executive Order 12630, Governmental the Plan Verification proposed rule to proposed rule to OMB for its review and Actions and Interference with assess and take appropriate account of approval of these information Constitutionally Protected Property its potential impact on small businesses, collections. Interested persons are Rights, because it does not involve small governmental jurisdictions, and requested to send comments regarding implementation of a policy with takings small organizations. As discussed in this information collection, including implications. Chapter V of the PREA, MSHA has suggestions for reducing this burden, if E. Executive Order 12988: Civil Justice determined that the proposed rule under 10 pages, by facsimile (202) 395– Reform would not have a significant economic 6974 to Attn: Desk Officer for MSHA; or impact on a substantial number of small by email to: [email protected]. All The Agency has reviewed Executive entities. comments may be sent by mail Order 12988, Civil Justice Reform, and addressed to the Office of Information determined that this rulemaking will XI. Public Hearings and Regulatory Affairs, OMB New not unduly burden the Federal court MSHA plans to hold public hearings Executive Office Building, 725 17th St., system. The regulation has been written on the proposed rule. The hearings will NW., Rm. 10235, Washington, DC so as to provide a clear legal standard be held under Section 101 of the Federal 20503, Attn: Desk Officer for MSHA. for affected conduct, and has been Mine Safety and Health Act of 1977. Please send a copy of your comments to reviewed carefully to eliminate drafting The hearings will be held in the MSHA at the address listed in the errors and ambiguities. following cities: ADDRESSES section of the preamble. F. Executive Order 13045: Protection of (a) Evansville, Indiana; Submit written comments on the Children From Environmental Health (b) Charleston, West Virginia; information collection not later than Risks and Safety Risks (c) Grand Junction, Colorado; June 4, 2003. (d) Birmingham, Alabama; Our paperwork submission In accordance with Executive Order (e) Lexington, Kentucky; summarized above is explained in detail 13045, protection of children from (f) Washington, Pennsylvania, and in Chapter 7 of the PREA. The PREA environmental health risks and safety The specific dates, times and facilities includes the estimated costs and risks, MSHA has evaluated the for the hearings will be announced by assumptions for each proposed environmental health or safety effects of a separate notice in the Federal paperwork requirement related to the the proposed rule on children. The Register. proposed plan verification rule. These Agency has determined that this paperwork requirements have been proposed rule would not have an Appendix A—Derivation of the Critical submitted to the Office of Management adverse impact on children. Values and Budget for review under section All measurements of respirable dust G. Executive Order 13175: Consultation 3504(h) of the Paperwork Reduction Act concentration are subject to potential and Coordination With Indian Tribal of 1995. Respondents are not required to sampling and analytical errors. Because Governments respond to any collection of information of such errors, a measurement may fall unless it displays a current valid OMB MSHA certifies that this proposed slightly below the verification limit control number. The PREA is located on rule does not impose substantial direct even when the true concentration of

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respirable coal mine dust or respirable true value of whatever quantity is being represented by its standard deviation, quartz dust does not. Therefore, to measured i.e., the full-shift average denoted by s ε. The ratio of sε to µ is ensure that the verification limits have concentration, at a specific sampling called the measurement coefficient of actually been met, it is necessary to location, of either respirable coal mine variation (CV) due to sampling and provide for a margin of error in each dust or respirable quartz dust. The analytical errors.42 The CV relates µ measurement. The critical values difference between X and is the entirely to variability due to provide this margin of error. MSHA can measurement error and is denoted by e measurement errors and not at all to µ be confident that the verification limits X = + e. variability in actual dust concentrations. have not been exceeded at the sampled In accordance with standard locations. When valid measurements do statistical and industrial hygiene For respirable coal mine dust, the not exceed the appropriate critical practice, e (but not µ) is assumed to be value of CV used in calculating critical values listed in Table 70–1, normally distributed. Since the values was chosen to be consistent with µ 3 corresponding to the number of shifts approved sampling and analytical the value proposed at = 2.0 mg/m in sampled. methods for measuring concentrations the Notice of Final Policy published in To explain how the verification limits of respirable coal mine dust and the Federal Register: Coal Mine were derived, it is helpful to define respirable quartz dust are both Respirable Dust Standard some symbolic notation. Let X represent statistically unbiased, e has a mean Noncompliance Determinations (63 FR a measurement, and let µ represent the value of zero and a degree of variability 5700, February 3, 1998):

CV =++=(((7%)222 5%) 5%) 10%

The 7-percent term in this formula between individual cyclones and for For respirable quartz dust, the value accounts for uncertainty due to variability in the exact volume of air of CV used in calculating critical values potential weighing error, and the two 5- pumped through the filter during a 480- is: percent terms account for differences minute shift.

CV =++=(.5 3%)222 (. 4 2%) (. 5 6%) 9%

The 5.3-percent term in this formula verification limit for respirable coal Substituting the appropriate CV accounts for imprecision in the Infrared mine dust. If, however, X = 1.72 mg/m3, estimate, the UCL is X·1.0336 for (Infrared Spectrophotometer or IR) then the UCL for µ would be 1.72·1.1645 respirable coal mine dust or X·1.0302 measurement of quartz mass deposited mg/m3, which slightly exceeds the for respirable quartz dust. Consequently, on the filter, the 4.2-percent term verification limit. Similarly, for to obtain the critical value, the represents variability in air volume, and respirable quartz dust, the UCL for µ is verification limit is first divided by µ 3 the final 5.6-percent term accounts for 87·(1 + (9% of 1.645)) = 99.9 g/m 1.0336 (coal mine dust) or 1.0302 µ 3 uncertainty due to variability between when X = 87 g/m and slightly above (quartz dust) and then truncated to the µ 3 individual cyclones, given the size the verification limit of 100 g/m when desired number of decimal digits. This µ 3 distribution of quartz dust encountered X = 88 g/m . yields 1.93 mg/m3 for coal mine dust in mining environments (Bartley, If more than one measurement is and 97 µg/m3 for respirable quartz dust. November 1999). available, then the confidence Each critical value (c) was calculated coefficient changes to reflect The confidence coefficients used to to provide a confidence level of at least multiplication of the tail probabilities establish critical values by this method 95 percent that the dust control for independent measurement errors. are as follows: parameters specified in the ventilation When n measurements are available, the plan were effective in preventing dust objective is to calculate a critical value Confidence n coefficient concentrations from exceeding the (c) such that if each of the n verification limits. Using a confidence measurements is ≤ c, then the 1-tailed µ ≤ 1 ...... 1.645 coefficient of 1.645, based on the 95-percent UCL for is the 2 ...... 0.760 standard normal probability verification limit. Since the product of 3 ...... 0.336 distribution, knowledge of the CV the n individual tail probabilities must 4 ...... 0.068 makes it possible to calculate a 1-tailed, equal 0.05, the appropriate 1-tail 95-percent upper confidence limit probability for each measurement (UCL) for µ, given a single measurement individually is the nth root of 0.05. For n > 4, the confidence coefficient X. The UCL is X·(1 + 1.645·CV). When For example, if n = 3, then the is less than 0.068. It should be noted X ≤ c, the UCL for µ is less than or equal that although the critical value appropriate 1-tail probability for each ≥ to the verification limit. When X > c, the measurement is the cube root of 0.05, or calculated for n 4 is slightly below the UCL for µ exceeds the verification limit. 0.3684. The standard normal confidence verification limit for both types of For example, suppose X = 1.71 mg/m3 coefficient corresponding to this tail respirable dust, for simplicity it was set respirable dust. Then the UCL for µ probability is 0.336. Therefore, when all equal to the verification limit as a close would be 1.71·(1 + (10% of 1.645)) = three measurements have the same approximation. 1.99 mg/m3, which is less than the value (X), the UCL is X·(1+0.336·CV).

42 In some publications, this ratio is called the also denoted by CVtotal, where ‘‘total’’ refers to all sources of potential sampling and analytical error µ relative standard deviation (RSD). It is sometimes but does not cover variability in itself.

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Appendix B—Model Powered Air- 3.0 Responsibilities 4.0 Program Elements Purifying Respirator (PAPR) Program Program Administrator Selection Procedures Note: The following is an example of a The Program Administrator is the The Program Administrator will select Model PAPR Protection Program. Not all management official designated by the PAPRs to be used on site in items contained in this example would be Wellington Mining Company who is accordance with all MSHA required for all mines. Additional items not requirements. The Program included in this example might be required responsible for administering the PAPR depending on the conditions at your mine. Program. The duties of the Program Administrator will provide all miners Administrator include: who wear PAPRs with a copy of the 1.0 Purpose • Selection of the PAPR. manufacturer’s instructions including • Monitoring respirator use to ensure the use, care, maintenance and storage Wellington Mining Company and the that PAPRs are used in accordance with of the PAPR. Mine Safety and Health Administration this program. • PAPRs utilized will be 3M model (MSHA) have determined that, after • Arranging for and conducting AS–600LBC, certified by the National installing all feasible engineering and training. Institute for Occupational Safety and environmental controls on the 002–0 • Health (NIOSH) under 42 CFR part 84 MMU longwall mining section, miners Ensuring proper storage and maintenance of PAPRs. and approved by MSHA under 30 CFR working downwind of the shearer • part 18 and will be used in accordance continue to be exposed to respirable Evaluating the program. • with the terms of certification and coal mine dust concentrations in excess Updating the written programs as needed. approval. The main PAPR filter will be of the allowable standard during routine the AS–140 HE or equivalent as The Program Administrator for mining operations. As a result, approved by NIOSH. Wellington Mining Company has been Wellington Mining Company is John granted permission by MSHA to use Doe. PAPR Protection Factor powered air-purifying respirators to Mine Supervisors The minimum air velocity specified protect affected miners from in the approved ventilation plan at the Mine supervisors are responsible for overexposure to this respiratory hazard headgate of the MMU 002–0 longwall is ensuring that the PAPR Protection until such time as other feasible 550 fpm. Accordingly, the assigned Program is implemented in their area(s) engineering controls become available. protection factor for the use of PAPRs is of responsibility. In addition to being During mining of development 2.9. knowledgeable about the program entries, Wellington Mining Company, When PAPRs are required to be used requirements for their own protection, for brief periods of time, intermittently while mining through rock partings on mine supervisors must also ensure that encounters high quartz concentrations development entries, the air velocity is the program is understood and followed while mining through rock partings. The less than 400 fpm which results in an by the miners under their supervision. approved ventilation plan parameters assigned protection factor of 4.0. likely will not prevent overexposure to Duties of the mine supervisor include: • some miners during these brief Ensuring that miners under their PAPR Use occurrences. Accordingly, MSHA has supervision have received appropriate PAPR protection is required as approved a revision to the ventilation training. • follows: plan to allow for the use of PAPRs, for Ensuring the availability of PAPRs • For all miners who work or travel a period not to exceed 30 days, when and accessories. downwind of the shearer operator when • these unusual operating conditions Being aware of miners, areas, material is being produced on the 002– occur. occupations or tasks requiring the use of 0 MMU longwall section. The purpose of this PAPR Protection PAPRs. • For all miners who work or travel • Program is to specify who is required to Enforcing the proper use of PAPRs on the active production face or work or wear PAPRs and the conditions under when necessary. travel downwind of that face when it • which the respirators must be used. The Ensuring that PAPRs are properly has been determined by mine miners, occupations, work location or cleaned, maintained, and stored management that unique operating tasks requiring PAPR use at Wellington according to the PAPR Protection conditions caused by mining through Mining Company are listed in Section Program. rock partings has or will occur. 4.0. • Ensuring that PAPRs fit properly and do not cause discomfort. General Use Procedures 2.0 Scope and Application • Coordinating with the Program • PAPRs assigned for the exclusive This PAPR Protection Program is Administrator on how to address use of a miner will be identified by applicable to all miners who are respirable coal mine dust hazards or labeling the outside with the miner’s required by the provisions of the other concerns regarding the program. full name. approved ventilation plan to wear • Miners Miners will use PAPRs under PAPRs. This includes supply and conditions specified by the program, maintenance personnel, electrical crews Each miner has the responsibility to and in accordance with the training they or supervisors working in those areas, wear the PAPR when and where have received on the use of the device. occupations or tasks designated in required and in the manner in which he The PAPR will not be used in a manner Wellington’s PAPR Protection Program. or she was trained. Miners must also: for which it is not certified by NIOSH Miners participating in the PAPR • Care for their PAPRs as instructed. or approved by MSHA. Protection Program do so at no cost to • Inform their mine supervisor if the • All miners should examine the them. The expense associated with PAPR is no longer operating properly. PAPR prior to each shift of use for a new training, providing and maintaining • Inform their mine supervisor or the main filter, integrity of the visor, and PAPRs will be borne by Wellington Program Administrator of any concerns proper functioning of the battery and Mining Company. they have regarding the program. motor assembly.

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Cleaning, Maintenance and Storage routine maintenance will be performed their PAPR facepiece, to replace a filter, by the lamproom attendant. leaking hose or exhausted power supply Cleaning The following checklist will be used (battery), or to repair a damaged/missing PAPRs are to be regularly cleaned and when inspecting PAPRs: visor. disinfected at the designated PAPR • Headgear Training cleaning station located in the —Check that there are no dents or lamproom. Units issued for the cracks in the headgear assembly The Program Administrator will exclusive use of a miner shall be —Look closely at the faceseals. There provide training to PAPR users and their cleaned prior to use on the next shift. should be no tears or loss of mine supervisors on the contents of the Those not assigned for the exclusive use elasticity that could permit Wellington Mining Company’s PAPR of a miner will be cleaned and contaminated air to enter the Protection Program, on the applicable disinfected prior to the next shift of use headgear. portions of the mine’s approved mine or assignment to a different miner. All —Check that the headseal and temple ventilation plan revisions, and on PAPRs will be cleaned by the lamproom seals are in good condition. MSHA respiratory protection standards. attendant. • Faceshield Miners will be trained prior to using a The following procedures are to be —Check the faceshield for correct PAPR in the active workings. used when cleaning and disinfecting placement in the visor surround. Supervisors will also be trained prior to PAPRs: Also look for scratches or other using a PAPR in the active workings or PAPRs Issued for Exclusive Use visual distortions that make it prior to supervising miners who must wear PAPRs. • difficult to see through the Wipe the Helmet/Headband/Cradle faceshield. The training course will cover these assembly/Head seal/Temple seal/visor • Blower Assembly topics: with a soft cloth dampened with a —Remove the blower from the • solution of mild soap and water. The Wellington Mining Company’s • headgear PAPR Protection Program Vacuum the motor housing. —Examine the blower housing and • Replace the main filter. • Applicable MSHA standards • replace it if cracked or damaged. • Inspect all parts for damage or wear. —Examine the inside of the blower Respirable coal mine dust (including Replace any parts that may affect the intake manifold for accumulated quartz) hazards encountered at performance of the respirator. Wellington Mining Company’s • dust. Clean as described above, if All components may be wiped with required. operations and their health effects. a soft cloth dampened with a solution • Limitations of PAPRs • Power supply and motor of disinfectant and water. • —Check operational function PAPR donning, doffing and user fit PAPRs Not Issued for Exclusive Use —Examine for tears or damage to the check • wiring or cable jacket. Miners will be retrained at least Disassemble the motor housing annually. Miners must demonstrate assembly, the head harness assembly, —Check for compliance with electrical permissibility their understanding of the topics the head seal assembly, the visor covered in the training through hands- assembly, the main filter and the requirements. • on exercises. PAPR training will be expander. PAPR battery packs will be placed on • charge if not already indicating a documented by the Program Clean all parts by wiping them with Administrator. a soft cloth dampened with a solution full charge. of mild soap and water. Wipe each Storage 5.0 Program Evaluation component with a soft cloth dampened PAPRs will be stored in a clean, dry The Program Administrator will with disinfectant. conduct periodic evaluations of the • Allow all parts to dry prior to area, and in accordance with the manufacturer’s recommendations. active workings to ensure that the reinstallation. provisions of the program are being • Inspect all parts for damage or wear. Clean/disinfected and inspected units will be placed in a sealed plastic bag implemented. The evaluations will Replace any parts that may affect the include regular consultations with performance of the respirator. and stored in the lamproom. • miners who use PAPRs and their Replace the main filter with a new Defective PAPRs supervisors, site inspections, an filter. PAPRs that have defective parts shall examination of respirable coal mine Note: The PAPR Program Administrator be removed from service immediately. dust sampling results, and a review of will ensure an adequate supply of If, during an examination or during the training records. appropriate cleaning and disinfection work shift, a miner discovers a defect in material at the cleaning station. 6.0 Documentation and a PAPR, it should be brought to the Recordkeeping attention of the supervisor. The Maintenance supervisor will have the Program A written copy of this program and PAPRs are to be maintained at all Administrator or delegate make the MSHA requirements will be posted times in order to ensure that they immediate repairs or secure a on the mine bulletin board for the function properly and adequately replacement prior to the miner returning review by interested miners, and a copy protect the miner. Maintenance involves to the work area that requires PAPR use. will be kept in the Program a thorough visual inspection for With the approval of the supervisor, Administrator’s office. cleanliness, defects and operational miners will be permitted to leave the Also maintained in the Program function. Worn, damaged, defective, or work area to perform limited Administrator’s office are copies of exhausted parts will be replaced prior to maintenance on their PAPR in a training records. Those records will be use. No components will be replaced or designated area that is free of respirable updated as new miners are trained, and repairs made beyond those coal mine dust hazards. Situations when as existing miners receive annual recommended by the manufacturer. All this will be permitted include: to wash refresher training.

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Appendix C—Citation Threshold However, because there is a small The overall measurement error Values (CTV) chance that the measurement exceeded associated with an individual I. Interpretation of the CTV Table the standard only because of measurement is nothing more than the measurement error, a citation would not difference between the measurement Each CTV was calculated to ensure be issued. Additional measurements (Xi) and the quantity being measured that, if the CTV is met or exceeded, would be necessary to verify the (µi). Therefore, this error can be noncompliance with the applicable dust apparent lack of adequate control represented as standard can be inferred with at least measures. Similarly, a single-shift e = X ¥ µ . 95-percent confidence. It is assumed i i i measurement of 1.92 mg/m3 would not Equivalently, any measurement can that whatever applicable dust standard warrant citation; but, because of happens to be in effect at the sampling be regarded as the true concentration in possible measurement error, neither the atmosphere sampled, with a location is binding, and that a citation would it warrant concluding that the is warranted whenever there is measurement error added on: mine atmosphere sampled was in µ sufficient evidence that an established Xi = i + ei. compliance. To confirm that control For two different measurements (X standard has been exceeded. The CTV measures are adequate, it would be 1 table does not depend on how the and X2), it follows that X1 may differ necessary to obtain additional from X not only because of the applicable dust standard was measurements. 2 established, or on any measurement combined effects of e1 and e2, but also Furthermore, even if a single-shift uncertainties in the process of setting because µ1 differs from µ2. measurement were to demonstrate, at a the applicable dust standard. The probability distribution of Xi high confidence level, that the mine The CTV table provides criteria for around µi depends only on the atmosphere was in compliance at the testing a tentative, or presumptive, probability distribution of ei and should hypothesis that the true single-shift sampling location on a given shift, not be confused with the statistical additional measurements would be average dust concentration did not distribution of µi itself, which arises exceed the applicable dust standard (S) required to demonstrate compliance on from spatial and/or temporal variability at each of the individual locations each shift. For example, if S = 2.0 mg/ in dust concentration. This variability 3 sampled during a particular shift. For m , then a valid measurement of 1.65 (i.e., among µi for different values of I) 3 purposes of this test, the mine mg/m would demonstrate compliance is not associated with inadequacies of atmosphere at each such location is on the particular shift and at the the measurement system, but real presumed to be in compliance unless particular location sampled. It would variation in exposures due to the fact the corresponding single-shift not, however, demonstrate compliance that contaminant generation rates vary measurement provides sufficient on other shifts or at other locations. greatly in time and contaminants are evidence to the contrary. The ‘‘true II. Derivation of the CTV Table heterogeneously distributed in single-shift average’’ does not refer, in workplace air. this context, to an average across To understand how the CTVs are Since noncompliance determinations different occupations, locations, or derived and justified, it is first necessary are made relative to individual sampling shifts. Instead, it refers entirely to the to distinguish between variability due to locations on individual shifts, dust concentration at the specific measurement error and variability due derivation of the CTV table requires no location of the sampler unit, averaged to actual differences in dust assumptions or inferences about the over the course of the particular shift concentration. The variability observed spatial or temporal pattern of during which the measurement was among individual measurements atmospheric dust concentrations—i.e., obtained. The CTV table is not designed obtained at different locations (or at the statistical distribution of µi. MSHA to estimate or test the average dust different times) combines both: dust is not evaluating dust concentrations concentration across occupational concentration measurements vary partly averaged across the various sampler locations, or within any zone or mine because of measurement error and locations. Therefore, the degree and area, or in the air actually inhaled by partly because of genuine differences in pattern of variability observed among any particular miner. the dust concentration being measured. different measurements obtained during The CTV table ensures that This distinction, between measurement MSHA sampling are not used in noncompliance is cited only when there error and variation in the true dust establishing any CTV. Instead, the CTV is a 95-percent level of confidence that concentration, can more easily be for each applicable dust standard (S) is the applicable dust standard has explained by first carefully defining based entirely on the distribution of actually been exceeded. A single-shift some notational abbreviations. measurement errors (ei) expected for the measurement that does not exceed the One or more dust samples are maximum dust concentration in applicable CTV value, does not collected in the same MMU or other compliance with that standard—i.e., a necessarily imply probable compliance mine area on a particular shift. Since it concentration equal to S itself. with the applicable dust standard—let is necessary to distinguish between If control filters are used to eliminate alone compliance at a 95-percent different samples in the same MMU, let potential biases, then each ei arises from confidence level. For example, a single- Xi represent the MRE-equivalent dust a combination of four weighing errors shift measurement of 2.14 mg/m3 would concentration measurement obtained (pre- and post-exposure for both the not, according to the CTV table, indicate from the ith sample. The quantity being control and exposed filter capsule) and noncompliance with sufficient measured is the true, single-shift a continuous summation of confidence to warrant a citation if S = average dust concentration at the ith instantaneous measurement errors 3 2.0 mg/m . This does not imply that the sampling location and is denoted by µi. accumulated over the course of an eight- mine atmosphere was in compliance on Because of potential measurement hour sample. Since the eight-hour the shift and at the location sampled. errors, µi can never be known with period can be subdivided into an On the contrary, unless contradictory complete certainty. A ‘‘sample,’’ arbitrarily large number of sub-intervals, evidence were available, this ‘‘measurement,’’ or ‘‘observation’’ and some fraction of ei is associated measurement would indicate that the always refers to an instance of Xi rather with each sub-interval, ei can be MMU was probably out of compliance. than µi. represented as comprising the sum of an

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arbitrarily large number of sub-interval Therefore, each ei is assumed to be Equivalently, for a MMU the null errors. By the Central Limit Theorem, normally distributed, with a mean value hypothesis (H0) is that max{µi} ≤ S. In such a summation tends to be normally of zero and a degree of variability other areas, where only one, full-shift distributed, regardless of the represented by its standard deviation measurement is made, the null hypothesis is simply that µ ≤ S. distribution of sub-interval errors. This σµ=⋅ i does not depend on the distribution of i iCV total. The test consists of evaluating the µi, which is generally represented as Since Xi = µi + ei, it follows that for likelihood of measurements obtained being lognormal. a given value of µi, Xi is normally during an MSHA sample, under the assumption that H is true. Since X = Furthermore, each measurement made distributed with expected value equal to 0 i µ s µi + ei, Xi (or max{Xi} in the case of a by MSHA personnel is based on the i and standard deviation equal to i. MMU) can exceed S even under that difference between pre- and post- CVtotal, is the coefficient of variation in measurements corresponding to a given assumption. However, based on the exposure weights of a dust sample, as value of µ . CV relates entirely to normal distribution of measurement determined in the same laboratory, and i total variability due to measurement errors errors, it is possible to calculate the adjusted by the weight gain or loss of and not at all to variability in actual probability that a measurement error the control filter capsule. Any dust concentrations. would be large enough to fully account systematic error or bias in the weighing MSHA’s procedure for citing for the measurement’s exceeding the process attributable to the laboratory is noncompliance based on the CTV table standard. The greater the amount by mathematically canceled out by consists of formally testing a which Xi exceeds S, the less likely it is subtraction. Furthermore, any bias that presumption of compliance at every that this would be due to measurement may be associated with day-to-day location sampled. Compliance with the error alone. If, under H0, this probability changes in laboratory conditions or applicable dust standard at the ith is less than five percent, then H0 can be introduced during storage and handling sampling location is expressed by the rejected at a 95-percent confidence level of the filter capsules is also relation µi ≤ S. Max{µi} denotes the and a citation is warranted. For a MMU, mathematically canceled out. maximum dust concentration, among all rejecting H0 (and therefore issuing a Elimination of the sources of systematic of the sampling locations within a citation) is equivalent to determining errors identified above, together with MMU. Therefore, if Max{µi} ≤ S, none that µi > S for at least one value of I. the fact that the concentration of of the sampler units in the MMU were Each CTV listed was calculated to respirable dust is defined by section exposed to excessive dust ensure that citations will be issued at a 202(e) of the Mine Act to mean the concentration. Since the burden of proof confidence level of at least 95 percent. average concentration of respirable dust is on MSHA to demonstrate As described in MSHA’s February 1994 measured by an approved sampler unit, noncompliance, the hypothesis being notice and explained further by Kogut implies that the measurements are tested (called the null hypothesis, or [2], the tabled CTV corresponding to unbiased. This means that ei is equally H0,) is that the concentration at every each S was calculated on the likely to be positive or negative and, on location sampled is in compliance with assumption that, at each sampling average, equal to zero. the applicable dust standard. location:

2  014./ mg m3  CV≤= CV  ⋅ 100% ++(( 5%)22 5%) total CTV µ 3  i mg/m 

The MSHA and NIOSH joint finding Assuming a normal distribution of µi < S for any I. Furthermore, to the establishes that for valid measurements measurement errors as explained above, extent that CVtotal is actually less than made with an approved sampler unit, it follows that the probability a single CVCTV, s is actually less than S·CVCTV. CVtotal is in fact less than CVCTV at all measurement would equal or exceed the This results in an even lower probability dust concentrations (µi). critical value that the critical value would be exceeded under the null hypothesis. The situation in which measurement cS=+164. ⋅σ Consequently, if any single-shift error is most likely to cause an measurement equals or exceeds c, then erroneous noncompliance is five percent under H0 when CVtotal = H can be rejected at confidence level of determination is the hypothetical case CVCTV. The tabled CTV corresponding 0 µ to S is derived by simply raising the at least 95-percent. Since rejection of H0 of i = S for either a single-shift sample implies that µ > S for at least one value measurement or for all of the critical value c up to the next exact i multiple of 0.01 mg/m3. of I, this warrants a noncompliance measurements made in the same MMU. For example, at a dust concentration citation. In that borderline situation—i.e., the (µi) just meeting the applicable dust It should be noted that when each of worst case consistent with H0—the 3 standard of S = 2 mg/m , CVCTV is 9.95 several measurements is separately standard deviation is identical for all percent. Therefore, the calculated value compared to the CTV table, the measurement errors. Therefore, the of c is 2.326 and the CTV is 2.33 mg/ probability that at least one ei will be s value of used in constructing the CTV m3. Any valid single-shift measurement large enough to force Xi ≥ CTV when µi table is the product of S and CVCTV at or above this CTV is unlikely to be ≤ S is greater than the probability when evaluated for a dust concentration equal this large simply because of only a single comparison is made. For to S: measurement error. Therefore, any such example (still assuming S = 2 mg/m3), measurement warrants a noncompliance if CVtotal is actually 6.6%, then the 2  014.  22citation. standard deviation of ei is 6.6% of 2.0 σ=S ⋅ ++(.05 ) (. 05 ) 3 3 µ   The probability that a measurement mg/m , or 0.132 mg/m , when i = S. S exceeds the CTV is even smaller if Using properties of the normal

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distribution, the probability that any American Textile Manufacturers’ Factors for Racal Airstream Helmets. single measurement would exceed the Institute v. Donovan, 452 U.S. 490, 508– Research Report prepared for Energy CTV in this borderline situation is 509 (1981). West Mining Company, Huntington, calculated to be 0.0062. However, the American Thoracic Society. Lung Utah, August 16, 1994. probability that at least one of five such Function Testing: Selection of Reference Boden, L.I. and M. Gold. The measurements results in a citation is 1 Values and Interpretative Strategies. accuracy of self-reported regulatory ¥ (0.9938)5 = 3.1 percent. Therefore, the American Review of Respiratory data: the case of coal mine dust. Am. J. confidence level at which a citation can Disease, Vol. 144, pp. 1202–1218, 1991. Ind. Med., Vol. 6, pp. 427–440, 1984. be issued, based on the maximum of Armitage, P. Statistical Methods in Bourgkard, E., P. Bernadec, N. Chau, five measurements made in the same Medical Research. Oxford, UK: J.P. Bertrand, D. Teculescu, and Q.T. MMU on a given shift, is 97%. Blackwell Scientific Publications, pp. Pham. Can the evolution to The constant 1.64 used in calculating 335–361, 375–384, 1977. pneumoconiosis be suspected in coal the CTV is a 1-tailed 95-percent Attfield, M.D. and R.M. Castellan. miners? Am. J. Respir. Crit. Care Med., confidence coefficient and is derived Epidemiological Data on U.S. Coal Vol. 158, pp. 504–509, 1998. from the standard normal probability Miners’ Pneumoconiosis, 1960 to 1988. Carta, P., G. Aru, M.T. Barbieri, G. distribution. Since the purpose of the American Journal of Public Health, Vol. Avantaneo, and D. Casula. Dust CTV table is to provide criteria for 82(7), pp. 964–970, July 1992. exposure, respiratory symptoms, and determining that the true dust Attfield, M.D and F.J. 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Environ. Hyg., Vol. 6(12), pp. 1032– U.S. Bureau of Mines. Respirable Coal simple pneumoconiosis Occup. Environ. 1041, 1991. Dust—Longwall. Undated. Med., Vol. 53, pp. 129–135, 1996. Seixas, N.S., T.G. Robins, M.D. U.S. Bureau of Mines. Respirable Coal Appendix E—Supplemental References Attfield, and L.H. Moulton. Exposure- Dust—Quartz. Undated. response relationships for coal mine U.S. Bureau of Mines. Respirable Coal The following references have been dust and obstructive lung disease Dust—Scrubbers/Dust Collectors. added to the Single Sample rulemaking following enactment of the Federal Coal Undated. record. Mine Health and Safety Act of 1969. U.S. Bureau of Mines. Respirable Coal 3M AirstreamTM High Efficiency Am. J. Ind. Med., Vol. 21, pp. 715–734, Dust—Ventilation. Undated. Headgear Systems: User Instructions for: 1992. U.S. Bureau of the Census. Current AS–200LBC, AS–400LBC, AS–600LBC, Seixas, N.S., T.G. Robins, M.D. Population Reports. Table 18. Resident 3M Occupational Health and Attfield, and L.H. Moulton. Population, by Race, 1980 to 1996, and Environmental Safety Division, January Longitudinal and cross sectional Projections, 1997 to 2050, pp. 25–1095 1999. TM analyses of exposure to coal mine dust and pp. 25–1130; and Population Paper 3M Airstream High Efficiency and pulmonary function in new miners. Headgear Systems: New Parts Insert Listing PPL–57, March 1997. TM Brit. J. Ind. Med., Vol. 50, pp. 929–937, U.S. Bureau of the Census. Current 3M Airstream Powered Air 1993. Population Reports. Table 119, Purifying Respirator High Efficiency Sherwood, R.J. Recommendations Expectation of Life and Expected Headgear: Number 4046, Occupational Concerning the Role of Workplace Deaths, by Race, and Age: 1994, March Health and Environmental Safety Testing of Respirators as a Condition of 1997. Division, Issue Date 9/01/01. 3M AirstreamTM High Efficiency Certification. Harvard School of Public U.S. Environmental Protection Helmet, User Instructions, January 21, Health, 1991. Agency. Water Quality Criteria 1999. Silverman, L., C.E. Billings, and M.W. Documents; Availability. 45 FR 79347– First. Particle Size Analysis in Industrial Ahmad, D.; Morgan, W.K.C; Lapp, 57, November 28, 1980. N.L.; Reger, R.; and J.J. Renn. Hygiene. New York: Academic Press, U.S. Environmental Protection Chapter 1, pp. 1–24, Chapter 7, pp. 260– Meretricious Effects of Coal Dust [letter]. Agency. Guidelines and methodology (See Beeckman-Wagner et al., 2002 for 273, and Chapter 2, pp. 25–51, 1971. used in the preparation of health effects Snipes, M.B. Current information on authors’ response). AM J Respir Crit assessment chapters of the consent Care, Feb 15; 165(4):552–43, 2002. lung overload in nonrodent mammals: decree water criteria documents. 45 FR contrast with rats. Inhal. Toxicol., Vol.8 Althouse, R.B.; Castellan, R.M.; 79347–79357, 1980. Attfield, M.D.; Bang, K.M.; and J.E. (suppl.), pp. 91–109, 1996. Wang, X. and D.C. Christiani, Soutar, C.A. and J.F. Hurley. Parker, Surveillance of pneumoconiosis ‘‘Respiratory Symptoms and Functional Relationship between dust exposure and morbidity in U.S. underground coal Status in Workers Exposed to Silica, lung function in miners and ex-miners. miners: 1975–1995. 1998 Elsevier Asbestos, and Coal Mine Dusts.’’ Journal Brit. J. Ind. Med., Vol. 43, pp. 307–320, Sciences BV. Advances in the of Occupational and Environmental 1986. Prevention of Occupational Respiratory Medicine, Volume 42, Number 11: Soutar, C.A., B.G. Miller, N. Gregg, Diseases. K. Chiyotani, Y. Hosoda and 1076–1084, November 2000. A.D. Jones, R.T. Cullen, and R.E. Bolton. Y. Aizawa, editors. Assessment of human risks from Wang, X.E. Yano, K. Nonaka, M. American Industrial Hygiene exposure to low toxicity occupational Wang, and Z. Wang. Respiratory Association, American National dusts. Ann. Occup. Hyg., Vol. 41(2), pp. impairments due to dust exposure: a Standard for Color Coding of Air- 123–133, 1997. comparative study among workers Purifying Respirator Canisters, Spear, T.M., J. DuMond, C. Lloyd, and exposed to silica, asbestos, and Cartridges, and Filters, ANSI/AIHA J.H. Vincent, ‘‘An Effective Protection coalmine dust. Amer. J. Ind. Med., Vol. Z88.7–2001. Factor Study of Respirators Used by 31(5), pp. 495–502, May 1997. American National Standards Primary Lead Smelter Workers.’’ Webster, J.B., C.W. Chiaretta, and J. Institute, American National Standard Applied Occupational and Behling. Dust Control in High for Respiratory Protection, ANSI Z88.2– Environmental Hygiene. Volumed Productivity Mines. SME Annual 1992. 15(2):235–244, 2000. Meeting, Preprint. Society for Mining, Attfield, M.D.; Vallyathan, V. and Spencer, E.R., P.D. Kovscek, and K.G. Metallurgy, and Exploration, Inc. (SME), F.H.Y. Green. Radiographic Fields. Design and Demonstration of a Littleton, CO, 90–82, 1990. Appearances of Small Opacities and Continuous Dust Control Parameter Weiss, S.T., M.R. Segal, D. Sparrow, their Correlation with Pathology Monitoring System. Department of and C. Wager. Relation of FEV1 and Grading of Macules, Nodules and Dust Energy, RI 9623, 1996. peripheral blood leukocyte count to Burden in the Lungs. Ann. Occup. Hyg., Starzynski, Z., K. Marek, A. Kujawska total mortality. The normative aging Volume 38, Supplement I:783–789, and W. Szymczak. Mortality among study Am. J. Epidemiol., Vol. 142(5), pp. 1994. different occupational groups of workers 493–498, 1995. Beeckman-Wagner, L.F.; Wang, M.; with pneumoconiosis: results from a West, J.B. Pulmonary Petsonk, E. and G.R. Wagner. register-based cohort study. Amer. J. Pathophysiology—The Essentials. Meretricious effects of coal dust Ind. Med., Vol. 30, pp. 718–725, 1996. Baltimore, MD: Williams and Wilkins [authors’ response]. 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Bureau of Labor Statistics, U.S. Factors and Effectiveness of Respirator Pathological Study of Emphysema, Department of Labor. Respirator Use Use Among Underground Coal Miners. Airways Obstruction and Massive and Practices. Press Release USDL American Journal of Industrial Fibrosis. Report No. TM/89/05, UDC 02–141, March 20, 2002. Medicine, 42:55–62, 2002. 622.872:616 24–007.61. Castranova, V. and V. Vallyathan. Lin, L.C.; Yang, S.C.; and K.W. Lu. Ruckley, V.A.; et al., Comparison of Silicosis and Coal Workers’ Ventilatory Defect in Coal Workers with radiographic appearances with Pneumoconiosis, Environmental Health Simple Pneumoconiosis: Early Detection associated pathology and lung dust Perspectives, Vol 108, Supplement of Functional Abnormalities. Kaohsiung content in a group of coalworkers. 4:675–684, August 2000. J Med Sci. 17(5):245–52, May 2001. British Journal of Industrial Medicine, Collia, D.V., Giles, P.E.; Edwards, S.L. Meyer, J.D.; Holt, D.L.; Chen, Y.; (41)459–467, 1984. and C.S. Freeman, U.S. Department of Cherry, N.M.; and J.C. McDonald. Scarisbrick, D., Silicosis and coal Labor, Occupational Safety and Health SWORD ’99: surveillance of work- workers’ pneumoconiosis. The Administration, The Workplace related and occupational respiratory Practitioner, 246(1631):114:117, Performance of a Loose-Fitting disease in the UK. Occup Med (Lond), February 2002. Facepiece Powered Air-Purifying 51(3):204–208, May 2001. Singh, N.; and G.S. Davis, Review: Respirator with High Efficiency Filters. Mine Safety and Health occupational and environmental lung Prepared for presentation on May 24, Administration, U.S. Department of disease. Curr Opin Pulm Med. 8(2):117– 2000 at the American Industrial Hygiene Labor, Coal General Inspection 125, March 2002. Procedures Handbook, Chapter 5, Conference and Exposition, Orlando Survivair, Mask Mounted, Full Release 1 (June 1992). Florida. Facepiece Powered Air-Purifying De Vuyst, P. and P. Camus. The past National Institute for Occupational Respirator (PAPR) with High-Efficiency and present of pneumoconioses. Service Safety and Health, Letter from Dr. Particulate Air (HE) Filter, Operation de Pneumologie, Hopital Erasme, Michael Attfield to Melinda Pon, Chief, Manual for MSHA Approved Models Bruxelles, Belgique. Curr Opin Pulm Division of Health, Mine Safety and 523000, 524000, 525000, and 526000. Med; 6(2):151–156, March 2000. Health Administration, dated September Douglas, A.N.; Robertson, A.; 30, 2002, correcting a July 11, 2002 July 1992/April 1996. Chapman, J.S.; and V.A. Ruckley. Dust letter from Dr. Gregory R. Wagner to Ms. Tyson, P.A.; Stuffer, J.L.; Mauger, exposure, dust recovered from the lung, Pon, Re: CWXSP. E.A.; Caulfield, J.E.; Conrad, D.W.; and and associated pathology in a group of National Institute for Occupational K.G. Stricklin. Silicosis Screening in British coalminers. British Journal of Safety and Health, Air Flow Test for Surface Coal Miners—Pennsylvania, Industrial Medicine. 43:795–801, 1986. PAPR, Task Number: TN–11893, 1996–1997. MMWR, Volume 49, Fernie, J.M. and V.A. Ruckley, Reference No.: CFR 84.1157, April 17, Number 27:612–615, July 14, 2000. Coalworkers’ pneumoconiosis: 2001. Vallyathan, V.; Goins, M.; Lapp, L.N.; correlation between opacity profusion National Institute for Occupational Pack, D.; Leonard, S.; Shi, X.; and V. and number and type of dust lesions Safety and Health, Air Flow Test for Castranova. Changes in Bronchoalveolar with special reference to opacity type. PAPR, Task Number: TN–7780, Lavage Indices Associated with British Journal of Industrial Medicine, Reference No.: CFR 84.1144, September Radiographic Classification in Coal 44:273–277, 1987. 18, 1995. Miners. Am J Respir Crit Care Med. Heederik, D. and M. Attfield, Page, S.J.; and J.A. Organiscak, 162(3 Pt 1):958–965, September 2000. Characterization of Dust Exposure for Suggestion of a Cause-and-Effect Yucesoy, B.; Vallyathan, V.; the Study of Chronic Occupational Lung Relationship Among Coal Rank, Landsittel, D.P., Sharp, D.S.; Matheson, Disease: A Comparison of Different Airborne Dust, and Incidence of J.; Burleson, F.; Luster, M.I. Exposure Assessment Strategies. Workers’ Pneumoconiosis. AIHAJ, Polymorphisms of the IL–1 Gene American Journal of Epidemiology, Volume 61:785–787, November/ Complex in Coal Miners with Silicosis. 151:(10):982–990, 2000. December 2000. Am J Ind Med, 39(3):286–291, March Jimenez-Ruiz, C.A., Masa, F.; Peed, Daniel. Employment Standards 2001. Miravitlles, M., Gabriel, R.; Vieho, J.L.; Administration, DOL, Email to William XII. Regulatory Text Villsante, C.; Sobradillo, V.; and the Baughman, Standards and Variances IBERPOC Study Investigators, Smoking Specialist, Mine Safety and Health List of Subjects Characteristics: Differences in Attitudes Administration, Subject: 2001 OWCP 30 CFR Part 70 and Dependence Between Healthy Report Statistics, September 11, 2002. Smokers and Smokers with COPD. Peed, Daniel. Memorandum of August Coal, Mine safety and health, Chest, 119:(5):1365–1370, May 2001. 2, 2002, from Dan Peed, Statistician, Underground coal mines, Respirable Kuempel, E.D.; O’Flaherty, E.J.; Employment Standards Administration, dust. Stayner, L.T.; Smith, R.J.; Green, F.H.Y.; DOL, to William Baughman, Standards and V. Vallyathan. A Biomathematical and Variances Specialist, Mine Safety 30 CFR Part 75 Model of Particle Clearance and and Health Administration, Subject: Coal, Mine safety and health, Retention in the Lungs of Coal Miners. Black Lung Program Statistics. Underground coal mines, Ventilation. Regulatory Toxicology and Peed, Daniel. Facsimile of July 29, 30 CFR Part 90 Pharmacology, 34:69–87, 2001. 2002 from Dan Peed, Statistician, Kuempel, E.D.; Tran, C.; Smith, R.; Employment Standards Administration, Coal, Mine safety and health. and A.J. Bailer. A Biomathematical DOL, to William Baughman, Standards Dated: February 12, 2003. Model of Particle Clearance and and Variances Specialist, Mine Safety Dave D. Lauriski, Retention in the Lungs of Coal Miners. and Health Administration, Subject: Regulatory Toxicology and Draft. Tables Associated with the 2001 Assistant Secretary of Labor for Mine Safety and Health. Pharmacology, 34:88–101, 2001. OWCP Annual Report. Li, H.; Wang, M.; Seixas, N.; Ruckley, V.A.; Fernie, J.M.; Campbell, Accordingly, MSHA proposes to Ducatman, A.; and E.L. Petsonk. S.J.; and H.S. Cowie. H.S., Causes of amend Chapter I of Title 30 of the Code Respiratory Protection: Associated Disability in Coalminers: A Clinico- of Federal Regulations as follows:

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PART 70—MANDATORY HEALTH Concentration. The amount of loading equipment, used for the STANDARDS—UNDERGROUND COAL respirable dust contained per unit production of material; or a specialized MINES volume of air. set which utilizes mining equipment Control filter. An unexposed filter other than specified in § 70.206(d) for 1. The authority citation for part 70 is cassette of the same design and material the production of material. Each MMU revised to read as follows: as the filter cassette used for sampling is assigned a four-digit identification Authority: 30 U.S.C. 811, 813(h), 957 and that is pre- and post-weighed on the number by MSHA. The identification 961. same day as the exposed filters. number is retained by the MMU 2. Subpart A is revised to read as Critical value. The highest equivalent regardless of where the unit relocates follows: concentration measurement within the mine. When two sets of demonstrating that the applicable mining equipment are provided in a Subpart A—General verification limit has been met at a series of working places and only one confidence level of at least 95 percent. production crew is employed at any Sec. Designated area (DA). An area of a given time on either set of mining 70.1 Scope. mine identified by the operator under 70.2 Definitions. equipment, the two sets of equipment § 75.371(t) of this title and approved by are identified as a single MMU. When § 70.1 Scope and purpose. the district manager, or identified by the two or more sets of mining equipment This part sets forth mandatory health Secretary. Each DA is identified by a are simultaneously engaged in the standards for each underground coal four-digit identification number production of material within the same mine subject to the Federal Mine Safety assigned by MSHA. working section, each such mechanized and Health Act of 1977. Designated occupation (DO). The mining unit is identified separately. occupation or work location on a MRE. The Mining Research § 70.2 Definitions. mechanized mining unit that has been Establishment of the National Coal Act. The Federal Mine Safety and determined by results of respirable dust Board, London, England. Health Act of 1977, Public Law 91–173, samples to exhibit the greatest MRE instrument. A gravimetric dust as amended by Public Law 95–164, 30 respirable dust concentration. sampler with a four channel horizontal U.S.C. 801 et seq. District manager. The manager of the elutriator developed by the MRE. Active workings. Any place in a coal Coal Mine Safety and Health District in MSHA. The Mine Safety and Health mine where miners are normally which the mine is located. Administration of the Department of required to work or travel. Dust control parameters. Specific Labor. Administrative controls. Methods of engineering or environmental controls, Personal continuous dust monitor controlling the respirable dust exposure maintenance procedures, and other (PCDM). An instrument that monitors of an individual miner assigned to a measures specified in the approved the concentration of respirable dust on specific work position or occupation by mine ventilation plan for controlling a continuous basis and displays in real- job rotation, altering the way in which respirable dust in the mine atmosphere time the measured dust exposure the assigned work is performed, of the active workings. information. providing time periods away from dust- Engineering or environmental Powered air-purifying respirator generating sources. These procedures controls. Methods of controlling the (PAPR). A type of air-purifying must be: level of respirable dust by reducing the respirator that uses a blower to force (1) Capable of being reviewed to quantity released into the work ambient air through the air-purifying confirm their proper implementation, environment, by diluting, capturing or elements to the inlet covering (a visor), (2) Clearly understood by the affected diverting the generated dust. which forms a partial seal with the face, miners, and Equivalent concentration. The to deliver filtered air into the miner’s (3) Applied consistently over time. concentration of respirable coal mine breathing area. Approved sampling device. A dust, as measured by an approved Protection factor (PF). A measure of sampling device of the constant-flow sampling device, converted to an MRE the level of respiratory protection that type: 8-hour equivalent as follows: would be expected in the workplace (1) Approved by the Secretary and the (1) Multiply the concentration from a properly functioning PAPR when Secretary of Health and Human Services measured by the approved sampling correctly worn and used. The protection under part 74 of this title; or device by the constant factor prescribed factor is the ratio of the respirable dust (2) Approved by the Secretary when by the Secretary for that device and then concentration outside the respirator it has been determined that the apply criteria in paragraphs (2) and (3) facepiece to the concentration inside the measured concentration of respirable of this definition if applicable. facepiece. For MMUs with average air dust can be converted to an equivalent (2) If the sampled shift is longer than velocity in the working face: concentration as measured with a 8 hours, multiply the concentration (1) <400 feet per minute (fpm), PF = sampling device approved under part 74 obtained in paragraph (1) of this 4; of this title. definition by t/480 where t is the length (2) >800 fpm, PF = 2; and Certified person. An individual of the sampled work shift in minutes. (3) between 400 fpm and 800 fpm, the certified by the Secretary to take (3) If using PAPRs, divide the applicable PF is determined by the respirable dust samples and/or to concentration obtained in paragraph (1) following formula: 2 × (800 fpm/actual perform the maintenance and or (2) of this definition (whichever is air velocity). calibration of approved sampling applicable) by the protection factor Production shift. devices. assigned to the mechanized mining unit. (1) With regard to a MMU, a shift Citation threshold value (CTV). The Material produced. Coal and/or any during which material is produced; or lowest equivalent concentration other substance(s) extracted by a (2) With regard to a DA, a shift during measurement demonstrating that the mechanized mining unit during any which material is produced and routine applicable dust standard has been production shift. day-to-day activities occur in the DA. exceeded at a confidence level of at least Mechanized mining unit (MMU). A set Quartz. Crystalline silicon dioxide 95 percent. of mining equipment, including hand (SiO2) as measured by:

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(1) MSHA’s Analytical Method P–7: recent three MSHA samples, the required by operator; and termination of Infrared Determination of Quartz in operator must continuously maintain citation. Respirable Coal Mine Dust; or the average concentration of respirable 70.219 Status change reports. (2) any method approved by MSHA as dust in the mine atmosphere during 70.220 Personal continuous dust monitor (PCDM). providing a measurement of quartz each shift in the active workings of each equivalent to that measured by mine, as measured with an approved § 70.201 Sampling; general and technical Analytical Method P–7. sampling device and in terms of an requirements. Respirable dust. Dust collected with equivalent concentration determined in (a) Each operator must conduct an approved sampling device. accordance with § 70.2, at or below the respirable dust sampling required by Secretary. The Secretary of Labor or applicable dust standard. The this part with an approved sampling delegate. applicable dust standard is determined device. Valid sample. A respirable dust by dividing the average quartz (b) Sampling must be performed by a sample collected and submitted as percentage into the number 10. certified person. To be certified, a required by this part, and not voided by Example: Assume a MMU or a DA is on a person must pass the MSHA MSHA. 2.0-mg/m3 dust standard (5% or less). If the examination on sampling of respirable 3 Verification limits. 2.0 mg/m of first MSHA sample contains 7.2% of quartz, coal mine dust. µ respirable coal mine dust and 100 g/ and the required two subsequent samples (c) Sampling devices must be worn or 3 m of respirable quartz dust, each contained 9.5% and 10.6%, respectively, the carried directly to and from the MMU to expressed as an equivalent average quartz percentage would be 9.1% be sampled and must be operated in [(7.2% + 9.5% + 10.6%)/3 = 9.1%]. concentration. accordance with the requirements of Verification production level (VPL). Therefore, the equivalent concentration of respirable dust in the mine atmosphere this part. The tenth highest production level associated with that MMU or DA must, on (d) Except as provided in paragraph recorded in the most recent 30 each shift, be maintained at or below 1.1 mg/ (h) of this section, one control filter production shifts; or, if fewer than 30 m3 [10/9.1% = 1.1 mg/m3]. must be used for each shift of sampling. shifts of production data are available, 4. Subpart C is revised to read as Each control filter must have the same the minimum production level attained follows: preweight date (noted on the dust data on any shift used to verify the adequacy card) as the ones that are used for of the dust control parameters. Subpart C—Sampling Procedures sampling; must remain plugged at all Working face. Any place in a coal times; must be exposed to the same mine in which work of extracting coal Sec. time, temperature, and handling from its natural deposit in the earth is 70.201 Sampling; general and technical requirements. conditions as the ones used for performed during the mining cycle. sampling; and must be kept with the 3. Subpart B is revised to read as 70.202 Approved sampling devices; maintenance and calibration. exposed samples after sampling. follows: 70.203 Approved sampling devices; (e) Except as provided in paragraph (i) operation; air flowrate. Subpart B—Dust Standards of this section, sampling must be 70.204 Demonstrating the adequacy of the conducted on a shift during which the Sec. dust control parameters specified in a amount of material produced by the 70.100 Respirable dust standards when mine ventilation plan; verification MMU is at or above the verification quartz is not present. sampling. 70.205 Verification sampling; when production level (VPL), as defined in 70.101 Respirable dust standard when § 70.2, and using only the dust control quartz is present. required; time for completing. 70.206 Verification sampling; procedures parameters listed in the approved mine § 70.100 Respirable dust standard when for sampling. ventilation plan, at levels not exceeding quartz is not present. 70.207 Approval of dust control parameters 115 percent of the specified quantities. by district manager; revocation of (1) If the VPL is not achieved, the (a) Each operator must continuously approval. maintain the average concentration of samples for that shift will be voided by 70.208 Follow-up action when either MSHA. However, any sample, respirable dust in the mine atmosphere verification limit is exceeded. during each shift to which each miner 70.209 Use of supplementary control regardless of production, that exceeds in the active workings of each mine is measures; types and conditions for use; either verification limit or applicable exposed at or below 2.0 milligrams per request for approval. dust standard will be used to determine cubic meter of air (mg/m3) as measured 70.210 Powered air-purifying respirators the equivalent concentration for that with an approved sampling device and (PAPRs); requirements for approval. occupation. 70.211 Powered air-purifying respirators (2) If the MMU being evaluated is in terms of an equivalent concentration (PAPRs); approval and conditions for determined in accordance with § 70.2. authorized to use PAPRs under special continued use; revocation of approval. circumstances (see § 70.212) and those (b) Each operator must continuously 70.212 Powered air-purifying respirators maintain the average concentration of (PAPRs); conditions of use under special circumstances prevent the operator from respirable dust within 200 feet outby the circumstances. achieving the VPL, the sample(s) for that working faces of each section in the 70.213 Administrative controls; shift will be used to determine the intake airways at or below 1.0 mg/m3 as requirements for approval. equivalent concentration for the affected measured with an approved sampling 70.214 Administrative controls; approval occupations. device and in terms of an equivalent and conditions for continued use; (f) Each operator must provide revocation of approval. affected miners and their concentration determined in accordance 70.215 Quarterly evaluation of approved with § 70.2. representatives with an opportunity to plan parameters. observe respirable dust sampling 70.216 Respirable dust samples; § 70.101 Respirable dust standard when required by this part and must give prior quartz is present. transmission by operator. 70.217 Respirable dust samples; report to notice of the date and time of intended When the respirable dust contains operator; and posting. sampling to affected miners and their more than five percent quartz, as 70.218 Violation of respirable dust representatives. An operator is exempt determined by the average of the most standard; issuance of citation; action from this requirement if using personal

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continuous dust monitors in accordance cadmium cell batteries must not be (c) Paragraph (b)(1) of this section will with § 70.220. lower than the product of the number of not apply if the approved sampling (g) Upon request from the district cells in the battery pack multiplied by device is being operated in a breast or manager, the operator must submit the the manufacturer’s nominal voltage per chamber of an anthracite coal mine date and time when any sampling cell. where the full box mining method is required by this part will begin. (2) Examination of all components of used. (h) Paragraph (d) of this section does the cyclone to assure that they are clean (d) Paragraphs (b)(1) and (2) of this not apply if sampling to conform with and free of dust and dirt; section do not apply if using a personal the requirements of § 70.215 or (3) Examination of the inner surface of continuous dust monitor in accordance § 70.220(d). the cyclone on the approved sampling with § 70.220. To assure that the (i) Paragraph (e) of this section does device to assure that it is free of scoring; personal dust monitor is operating not apply if sampling to conform with (4) Examination of the external tubing properly and at the proper flowrate, the the requirements of § 70.220(d). on the approved sampling device to operator must follow the procedures § 70.202 Approved sampling devices; assure that it is clean and free of leaks, recommended by the manufacturer or maintenance and calibration. and; prescribed by the Secretary and the Secretary of Health and Human Services (a) Sampling devices must be (5) Examination of the clamping and for the particular device. maintained as approved and calibrated positioning of the cyclone body, vortex by a certified person in accordance with finder and cassette to assure that they § 70.204 Demonstrating the adequacy of MSHA Informational Report IR 1240 are rigid, in alignment, and firmly in the dust control parameters specified in a (1996) ‘‘Calibration and Maintenance contact. mine ventilation plan; verification sampling. Procedures for Coal Mine Respirable (e) In accordance with 5 U.S.C. 552(a) As of lllll (Insert date which Dust Samplers (supersedes IR 1121)’’ or and 1 CFR, part 51, MSHA must be within 12 months of the in accordance with the manufacturer’s Informational Report No. 1240 (1996) effective date of this rule), each operator specifications if using a personal referenced in paragraph (a) of this of an underground coal mine must have continuous dust monitor (PCDM) under section is incorporated-by-reference. a ventilation plan in which the dust § 70.220. To be certified, a person must Copies may be inspected or obtained control parameters specified for each pass the MSHA examination on without charge at each Coal Mine Safety MMU have been verified through maintenance and calibration for and Health District office of MSHA. sampling to be adequate in controlling approved sampling devices. (f) Paragraphs (d)(1) through (d)(5) of respirable dust as required by (b) Sampling devices must be this section do not apply if using a § 75.370(a)(1) of this title. To calibrated at the flowrate of 2.0 liters of PCDM. The operator must follow the demonstrate that the plan parameters for air per minute, or at a different flowrate examination procedures recommended each MMU are adequate, the operator as prescribed by the Secretary and the by the manufacturer or prescribed by must show, with a high level of Secretary of Health and Human Services the Secretary and the Secretary of confidence, that the equivalent for the particular device, before they are Health and Human Services for the concentration of respirable coal mine put into service and, thereafter, at time particular device. dust and respirable quartz dust can be intervals prescribed by the § 70.203 Approved sampling devices; maintained at or below the verification 3 µ 3 manufacturer. operation; air flowrate. limits (2.0 mg/m and 100 g/m , (c) If equipped with a flowmeter, a respectively) as determined by meeting (a) Sampling devices must be calibration mark must be placed on the the critical values in Table 70–1. flowmeter of each sampling device to operated at the flowrate of 2.0 liters of indicate the proper position of the float air per minute, or at a different flowrate § 70.205 Verification sampling; when when the sampler is operating at a as prescribed by the Secretary and the required; time for completing. flowrate of 2.0 liters of air per minute Secretary of Health and Human Services (a) The operator must, within 45 or other flowrate prescribed by the for the particular device. calendar days after obtaining Secretary and the Secretary of Health (b) Except as provided in paragraphs provisional approval, verify the and Human Services for the particular (c) and (d) of this section, each sampling adequacy of the dust control parameters device. The standard to denote proper device must be examined each shift by for each MMU when: flow is when the lowest part of the float a person certified to sample during: (1) Submitting a ventilation plan is lined up with the top of the (1) The second hour after being put under § 75.370 for a newly established calibration mark. into operation to assure that the MMU. (d) Except as provided in paragraph sampling device is operating properly (2) The district manager determines (f) of this section, each sampling device and at the proper flowrate. If the proper that the previously approved plan must be tested and examined flowrate is not maintained, necessary parameters are inadequate to control immediately before each sampling shift adjustments must be made by the respirable dust under the prevailing and necessary external maintenance certified person. operating conditions and requires the must be performed by a certified person (2) The last hour of operation to operator to revise the plan parameters. to assure that the sampling device is assure that the sampling device is (b) The district manager may, upon clean and in proper working condition. operating properly and at the proper written request, grant the operator an This testing and examination must flowrate. If the proper flowrate is not extension of up to 30 calendar days to include the following: maintained, the respirable dust sample complete verification sampling. (1) Testing the voltage of each battery must be transmitted to MSHA with a (c) All previously approved while under actual load to assure the notation by the certified person on the ventilation plans must be revised in battery is fully charged. The voltage for back of the dust data card stating that accordance with § 75.371(f) of this title nickel cadmium cell batteries must not the proper flowrate was not maintained. and the adequacy of the dust control be lower than the product of the number Also to be noted are any other events parameters verified by lllll of cells in the battery pack multiplied by occurring during sampling that may (Insert date which must be within 12 1.25. The voltage for other than nickel affect the validity of the sample. months of the effective date of this rule.)

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§ 70.206 Verification sampling; procedures (3) Continuous mining section other (9) Hand loading section shooting off for sampling. than auger-type—on the continuous the solid—on the hand loader exposed (a) Each operator must sample the mining machine operator or on the to the greatest dust concentration or at following occupations for each MMU: continuous mining machine within 36 a location that represents the maximum (1) Designated occupation (DO); inches inby the normal working concentration of dust to which the (2) Roof bolter operator(s); position; miner is exposed; and (3) Longwall jack setters; and (10) Anthracite mine sections—on the (4) Any other occupation designated (4) Continuous mining machine; hand loader exposed to the greatest dust by the district manager. auger-type—on the jacksetter who works (b) Each sampling device must be nearest the working face on the return concentration or at a location that turned ‘‘ON’’ upon arriving at the MMU air-side of the continuous mining represents the maximum concentration to be sampled, must remain operational machine or at a location that represents of dust to which the miner is exposed. the entire period spent in the MMU, and the maximum concentration of dust to (e) When sampling an occupation must be turned ‘‘OFF’’ at the end of the which the miner is exposed; other than the DO, the sampling device shift as the device exits the MMU. (5) Scoop section using cutting must be placed on the miner assigned to (c) Multiple-shift samples are not machine—on the cutting machine that occupation, unless directed required to be collected on consecutive operator or on the cutting machine otherwise by the district manager. shifts. All samples collected during within 36 inches inby the normal § 70.207 Approval of dust control verification sampling must be submitted working position; parameters by district manager; revocation to MSHA. (6) Scoop section, shooting off the of approval. (d) Unless otherwise directed by the solid—on the coal drill operator or on district manager, the DO samples must (a) Approval of the dust control the coal drill within 36 inches inby the parameters specified in the ventilation be collected by placing the sampling normal working position; device as follows: plan will be granted when: (1) Conventional section using cutting (7) Longwall section—on the miner (1) No valid equivalent concentration machine—on the cutting machine who works nearest the return air-side of measurement exceeds the critical values operator or on the cutting machine the longwall working face or along the listed in Table 70–1 that correspond to within 36 inches inby the normal working face on the return side within the number of shifts sampled, and working position; 48 inches of the corner; (2) The specified dust control (2) Conventional section shooting off (8) Hand loading section with a parameters incorporate the parameters the solid—on the loading machine cutting machine—on the cutting used during verification sampling. operator or on the loading machine machine operator or on the cutting (b) MSHA approval may be revoked within 36 inches inby the normal machine within 36 inches inby the based on samples collected by MSHA or working position; normal working position; in accordance with § 70.215.

TABLE 70–1.—CRITICAL VALUES FOR DETERMINING COMPLIANCE WITH VERIFICATION LIMITS

Critical values If samples are submitted for Respirable coal Respirable quartz mine dust dust

1 shift ...... 1.71 mg/m3 ...... 87 µg/m3 2 shifts ...... 1.85 mg/m3 ...... 93 µg/m3 3 shifts ...... 1.93 mg/m3 ...... 97 µg/m3 4 or more shifts ...... 2.0 mg/m3 ...... 100 µg/m3

§ 70.208 Follow-up action when either manager may require additional control time of submittal. MSHA will consider verification limit is exceeded. measures before the operator may all comments from the representative of If either verification limit is exceeded, resume or initiate sampling in miners and provide copies of these the operator must: accordance with the requirements of comments to the operator upon request. (a) Stop sampling and make approved § 70.206. (b) The Administrator will approve or respiratory equipment available to § 70.209 Use of supplementary control deny the operator’s request to use affected miners in accordance with measures; types and conditions for use; supplementary controls within 30 § 70.300; request for approval. calendar days or as soon as practicable (b) Determine the cause and take (a) If either verification limit is after its receipt by MSHA. action to reduce the concentration of exceeded and the operator believes that (1) If approval is denied, the operator respirable dust to within the applicable the MMU is using all feasible will be notified in writing of specific verification limit; and engineering or environmental controls, reasons for disapproval. (c) Submit in writing, within 5 the operator may request the (2) If approval is granted, the operator calendar days of receiving results of Administrator for Coal Mine Safety and will be permitted to use either powered sampling, any proposed revision to the Health to approve the use of air-purifying respirators (PAPRs), plan parameters to the district manager. supplementary control measures to approved by NIOSH under 42 CFR part The district manager will notify the reduce exposure of individual miners 84 and by MSHA under part 18 of this operator in writing if the proposed assigned to work in the affected title, administrative controls, or a revision is provisionally approved and occupations to within the applicable combination of both, provided the whether to resume sampling from the verification limits. The operator must requirements of §§ 70.210 and 70.211 or point it was stopped or to begin provide a copy of the submitted request §§ 70.213 and 70.214 are met. The sampling all over again. The district to the representative of miners at the operator will be permitted to use these

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supplementary controls until additional (b) MSHA may revoke approval to use (d) If PAPR use is to exceed 30 feasible engineering controls become supplementary controls for failure to: consecutive calendar days or if any available and are implemented or until (1) Comply with the plan equivalent concentration measurements the district manager revokes the requirements on each shift; indicate that miners are being approval. (2) Maintain the equivalent overexposed, the operator must revise (c) MSHA approval to use concentration of respirable coal mine and verify the adequacy of the plan supplementary controls may be revoked dust for any occupation affected by a parameters under the prevailing for failure to comply with requirements PAPR protection program and other operating conditions. of § 70.211(b) or § 70.214(b). occupations within the MMU at or below the applicable dust standard; and § 70.213 Administrative controls; § 70.210 Powered air-purifying respirators (3) Implement other feasible requirements for approval. (PAPRs); requirements for approval. engineering controls to reduce dust (a) Within 5 calendar days of (a) Within 5 calendar days of concentrations as low as achievable receiving MSHA approval to use receiving MSHA approval to use when such controls become available. supplementary controls, the operator supplementary controls, the operator The approved plan parameters will be must submit, in writing, a revision to must submit, in writing, a revision to reviewed every 6 months to assure that the ventilation plan to the district the ventilation plan to the district the operator is using all feasible manager. The proposed revision must manager. The proposed revision must engineering controls and that the plan include: include: parameters continue to be effective (1) Feasible engineering controls (1) Feasible engineering controls under current operating conditions. capable of maintaining the environment capable of: of any occupation under administrative § 70.212 Powered air-purifying respirators (i) Reducing the concentration of controls and other occupational respirable dust in every occupational (PAPRs); conditions of use under special circumstances. environments at or below the environment where a PAPR is required verification limits; and as low as achievable; and (a) When unusual operating conditions are either encountered or (2) The administrative controls to be (ii) Maintaining other occupational implemented and the method for environments at or below the anticipated, which are known to occur briefly and intermittently, and the ensuring that the procedures for such verification limits. controls are complied with on each (2) A written PAPR protection operator has reason to believe that the shift. The district manager may require program which meets the requirements approved plan parameters will not additional procedures in the plan of § 72.710 and includes: maintain all occupational environments (i) The protection factor assigned to in the MMU in compliance with revision. the MMU as determined in accordance § 70.100 or § 70.101, the operator may (b) Within 30 calendar days of with § 70.2; and submit a written request to the district receiving provisional approval of the (ii) The specific occupation(s), work manager, along with a proposed revision plan revision, the operator must verify, locations or tasks affected in the MMU. to the plan parameters, for the use of in accordance with § 70.206(b) through The district manager may require PAPRs as a supplementary control (e), the adequacy of the proposed adjustments in the PAPR protection measure to prevent individual miners revision by sampling the occupation(s) program. from being overexposed and to comply under administrative control, the DO, (3) The location(s) in a MMU where with the applicable dust standard and/or other occupation(s) designated warning signs with the statement during such periods. The operator must by the district manager. ‘‘RESPIRATORY PROTECTION provide a copy of the request to the § 70.214 Administrative controls; approval REQUIRED IN THIS AREA’’ will be representative of miners at the time of and conditions for continued use; posted. submittal. MSHA will consider all revocation of approval. (b) Within 30 calendar days of comments from the representative of (a) MSHA will approve the proposed receiving provisional approval of the miners and provide copies of these plan revision incorporating the use of plan revision, the operator must verify, comments to the operator upon request. administrative controls when: (b) The district manager will approve in accordance with § 70.206(b) through (1) No valid equivalent concentration the use of PAPRs on an intermittent (e), the adequacy of the proposed measurement exceeds the critical values basis as a result of the operational revision by sampling the occupation(s) listed in Table 70–1 that correspond to factors set forth in paragraph (a) of this being affected by the PAPR protection the number of shifts sampled; and program, the DO, and/or other section when the operator: (1) Shows that the unusual conditions (2) The revision incorporates the dust occupation(s) designated by the district control parameters used during manager. are atypical, intermittent and beyond the control of the operator; and verification sampling. § 70.211 Powered air-purifying respirators (2) Revises the previously approved (b) MSHA may revoke approval to use (PAPRs); approval and conditions for dust control provisions of the supplementary controls for failure to: continued use; revocation of approval. ventilation plan to comply with (1) Comply with the plan (a) MSHA approval of the proposed requirements of § 70.210(a)(1), (2) and requirements on each shift; plan revision incorporating a PAPR (3) when PAPRs are used. (2) Maintain the equivalent protection program will be granted (c) The operator also must: concentration of respirable coal mine when: (1) Notify the district manager and the dust for any occupation under (1) No valid equivalent concentration representative of miners in writing or by administrative controls and other measurement exceeds the critical values electronic means within 24 hours of the occupations in the MMU at or below the listed in Table 70–1 to §70.207 that occurrence of unusual conditions which applicable dust standard; and correspond to the number of shifts requires the use of PAPRs; (3) Implement other feasible sampled; and (2) Comply with the requirements of engineering controls to reduce dust (2) The revision incorporates the dust § 70.211(b)(1) and (2); and concentrations as low as achievable control parameters used during (3) Not use PAPRs for a period longer when such controls become available. verification sampling. than 30 consecutive calender days; MSHA will review the approved plan

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parameters every 6 months to assure (d) MSHA will cite an operator for (4) The occupation code, where that the operator is using all feasible failure to take corrective action to applicable; environmental controls and that the reduce the concentration of respirable (5) The reason for voiding any sample; plan parameters continue to be effective dust in accordance with § 70.215(c)(1). and under current operating conditions. (e) Paragraph (a) of this section does (6) The engineering controls and their not apply if using a personal continuous measured quantities, including other § 70.215 Quarterly evaluation of approved dust monitor under § 70.220. dust control parameters that were being plan parameters. used in the MMU when sampled by (a) For those MMUs designated by § 70.216 Respirable dust samples; MSHA. MSHA, one valid respirable dust sample transmission by operator. (b) The operator must post the from the DO and the occupation(s) (a) Within 24 hours after the end of following information on the mine under supplementary controls must be the sampling shift, the operator must bulletin board: submitted to MSHA on a quarterly basis. transmit, in containers provided by the (1) The report of the results of all The occupations must be sampled in manufacturer of the filter cassette, all samples described in paragraph (a) of accordance with paragraphs (b), (d) and samples collected to fulfill the this section and the end-of-shift (e) of § 70.206. requirements of this part, including the exposure data if using a personal (1) MSHA designates an MMU for control filter cassettes if required to be continuous dust monitor (PCDM) under sampling when any MSHA equivalent used, to: Respirable Dust Processing § 70.220. concentration measurement exceeds the Laboratory, Pittsburgh Safety and Health (2) The engineering controls and their applicable dust standard by at least 0.1 Technology Center, Cochrans Mill Road, measured quantities, including other mg/m3. Building 38, P.O. Box 18179, Pittsburgh, dust control parameters that were being (2) Sampling is required until all Pennsylvania 15236–0179, or to any used in the MMU when sampled by the MSHA and operator sample results other address designated by the district operator or by MSHA. remain at or below the applicable dust manager. (3) All written notifications from the standard for at least four quarters. (b) The operator must not open or district manager regarding any aspect of (3) Sampling begins during the next tamper with the seal of any filter the verification procedures, including quarterly period following MSHA cassette or alter the weight of any filter all correspondence submitted by the designation of the MMU. The quarterly cassette before or after it is used. operator in accordance with §§ 70.209 periods are: (c) A person certified to take and 70.212. (i) January 1–March 31 respirable dust samples must properly (c) The operator may remove all (ii) April 1–June 30 complete the dust data card for each information pertaining to the (iii) July 1–September 30 filter cassette. The card must have an verification process, such as sample (iv) October 1–December 31. identification number identical to that results, the information specified in (b) If any valid equivalent on the cassette used to take the sample paragraph (b)(3) of this section, and concentration measurement exceeds the or used as a control filter and be 3 written correspondence, after the applicable dust standard by 0.1 mg/m submitted to MSHA with the sample. district manager approves the dust or more , the operator must, make Each card must be signed by the control parameters specified in the approved respiratory equipment certified person and must include that ventilation plan. The notification available to affected miners in person’s certification number. Samples required under § 70.212(c)(1) of the accordance with § 70.300, unless with data cards not properly completed occurrence of special circumstances already under a PAPR protection will be voided by MSHA. requiring the use of PAPRs must be program; and within 15 calender days (d) All samples submitted by the posted no longer than 30 calendar days after receipt of the respirable dust operator must be considered taken to or until such time when it is no longer sample data report from MSHA: fulfill the sampling requirement of this necessary to continue to use PAPRs, (1) Determine the cause and take part, unless the sample has been whichever time period is less. corrective action to reduce the identified in writing by the operator to (d) Results of samples collected by the equivalent concentration of respirable the district manager, prior to the operator in accordance with § 70.215 or coal mine dust to within the applicable intended sampling shift, as a sample to by MSHA must be posted for at least 31 dust standard; be used for purposes other than required calendar days following receipt, (2) Make a record of the reported by this part. including the information specified in excessive dust condition. The record (e) Paragraphs (a) through (d) of this paragraph (b)(2) of this section. If using must include the following: section do not apply if using a PCDM a PCDM, the end-of-shift exposure data (i) Date of sampling; under § 70.220, except when and information specified in paragraph (ii) Location within the mine and the transmitting samples for quartz analysis (b)(2) of this section must be posted for occupation where the sample was along with the control filter cassette at least 7 calendar days. collected; required by § 70.220(c). (iii) Measured dust concentration of § 70.218 Violation of respirable dust each sample collected; § 70.217 Respirable dust samples; report standard; issuance of citation; action (iv) Corrective action being taken to to operator; and posting. required by operator; and termination of reduce the concentration of respirable (a) MSHA will provide the operator a citation. coal mine dust. report with the following data on all (a) If a valid equivalent concentration (c) If any valid equivalent samples submitted in accordance with measurement for any occupation concentration measurement exceeds the this part and samples collected by sampled by MSHA meets or exceeds the citation threshold value (CTV) listed in MSHA: citation threshold value (CTV) listed in Table 70–2 that corresponds to the (1) The mine identification number; Table 70–2 that corresponds to the applicable dust standard, the district (2) The location within the mine from applicable dust standard in effect, the manager may require the operator to which the samples were taken; operator will be cited for a violation of revise the plan parameters and verify (3) The result of each sample taken in § 70.100 or § 70.101. their adequacy under the prevailing accordance with this part and by (b) Upon receipt of a citation issued operating conditions. MSHA; in accordance with paragraph (a) of this

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section, the operator must take the must report the change to the MSHA shift under the prevailing operating following actions within the time for District Office or to any other MSHA conditions, unless the operator abatement fixed in the citation: office designated by the district demonstrated through verification (1) Make respiratory equipment manager. Status changes must be sampling that the exposure of each available to affected miners in reported in writing within 3 working miner working on the same shift is accordance with § 70.300, unless days after the change has occurred. represented by sampling only the DO already under a PAPR protection (b) Each specific operational status is and/or another occupation(s) specified program; defined as follows: in § 70.206(a). Each PCDM must be (2) Determine the cause and take (1) Underground mine: operated portal-to-portal and must corrective action to reduce the (i) Producing—has at least one MMU remain operational the entire shift or for equivalent concentration of respirable producing material. 12 hours, whichever time is less. coal mine dust to within the applicable (ii) Nonproducing—no material is (e) If any end-of-shift equivalent dust standard; being produced. concentration measurement exceeds the (3) Revise the plan parameters if the (iii) Abandoned—the work of all applicable dust standard by 0.1 mg/m3 corrective action taken indicates that the miners has been terminated and or more, the requirements in paragraphs dust control parameters originally production activity has ceased. (c)(1) through (3), (d) and (e) of § 70.215 approved for the MMU are inadequate (2) Mechanized mining unit: will apply. for the current operating conditions; and (i) Producing—producing material (4) Notify the district manager, in from a working section. PART 75—[AMENDED] writing or by electronic means, within (ii) Nonproducing—temporarily 24 hours after implementing corrective ceased production of material. 5. The authority citation for part 75 action(s). (iii) Abandoned—permanently ceased continues to read as follows: (c) The citation will be terminated production of material. Authority: 30 U.S.C. 811. when: § 70.220 Personal continuous dust 6. Section 75.370 of Subpart D is (1) All valid equivalent concentration monitor (PCDM). measurements of MSHA abatement amended by adding paragraph (h) to (a) An operator may implement a samples are at or below the applicable read as follows: miner protection program based on the dust standard. If compliance is use of approved personal continuous § 75.370 Mine ventilation plan; submission demonstrated, the plan must dust monitors (PCDM) in conjunction and approval. incorporate the dust control parameters with engineering and administrative * * * * * used during MSHA sampling; or, controls specified in the ventilation (2) The revised plan parameters have (h) The operator must record the plan. been verified for the current operating amount of material produced, as defined (b) If PCDMs are to be used, the conditions, if required by the district in § 70.2 of this title, by each MMU operator may include administrative manager. during each production shift, retain the controls in the proposed plan without records for six months, and make the obtaining approval from the TABLE 70–2.—CITATION THRESHOLD records available to authorized Administrator for Coal Mine Safety and VALUES (CTV) FOR CITING RES- representatives of the Secretary and the Health under § 70.209. The proposed miners’ representative. PIRABLE DUST VIOLATIONS BASED plan must include: 7. Section 75.371 of Subpart D is ON SINGLE-SHIFT MEASUREMENTS (1) The engineering and amended by revising paragraphs (f) and administrative controls to be used and (t) to read as follows: Applicable dust standard CTV the method for ensuring that such (mg/m3) (mg/m3) controls are complied with each shift; § 75.371 Mine ventilation plan; contents. 2.0 ...... 2.33 (2) The miners or occupations that * * * * * will wear a PCDM each shift; and 1.9 ...... 2.22 (f) Section and face ventilation (3) The procedures that ensure no 1.8 ...... 2.11 systems used, including drawings 1.7 ...... 2.0 miner will be exposed above the illustrating how each system is used; 1.6 ...... 1.90 applicable dust standard in § 70.100(a) and a description of each different dust 1.5 ...... 1.79 or § 70.101. 1.4 ...... 1.68 (c) The adequacy of the proposed plan suppression system used on equipment 1.3 ...... 1.58 in controlling exposure to respirable on working sections, including any 1.2 ...... 1.47 dust must be demonstrated as specific work practices used to 1.1 ...... 1.36 prescribed in § 70.204 by monitoring minimize the dust exposure of 1.0 ...... 1.26 individual miners, along with 0.9 ...... 1.15 each miner’s exposure. Each PCDM must be operated portal-to-portal and information on the location of the roof 0.8 ...... 1.05 bolter(s) during the mining cycle for 0.7 ...... 0.94 must remain operational the entire work 0.6 ...... 0.84 shift or for 12 hours, whichever time is each continuous miner section, and the 0.5 ...... 0.74 less. In addition, the operator must cut sequence for each longwall mining 0.4 ...... 0.64 collect a respirable dust sample for section. For plans required to be verified 0.3 ...... 0.53 quartz analysis from each occupation pursuant to § 70.204 of this title, the 0.2 ...... 0.43 specified in paragraph (a) and in length of each normal production shift accordance with paragraphs (b), (d) and and the verification production level § 70.219 Status change reports. (e) of § 70.206. The district manager will (VPL), as determined in accordance (a) If there is a change in operational approve the proposed plan in with § 70.2 of this title, must be status of the mine or a MMU that affects accordance with § 70.207(a). included for each working section. either the sampling requirements of this (d) Following approval by the district * * * * * part or MSHA’s ability to carry out its manager, the exposure of each miner on (t) The location of each ‘‘designated sampling responsibilities, the operator a MMU must be monitored on every area,’’ and the respirable dust controls

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used at the dust generating sources for proposed rule also sets forth the identification number by MSHA. The these locations. operator’s obligations, including identification number is retained by the * * * * * respirable dust sampling for Part 90 MMU regardless of where the unit 8. Part 90 is revised to read as follows: miners. This Part 90 is promulgated relocates within the mine. When two pursuant to section 101 of the Act and sets of mining equipment are provided PART 90—MANDATORY HEALTH supercedes section 203(b) of the Act. in a series of working places and only STANDARDS—COAL MINERS WHO one production crew is employed at any HAVE EVIDENCE OF THE § 90.2 Definitions. given time on either set of mining DEVELOPMENT OF Act. The Federal Mine Safety and equipment, the two sets of equipment PNEUMOCONIOSIS Health Act of 1977, Public Law 91–173, are identified as a single MMU. When as amended by Public Law 95–164, 30 two or more MMUs are simultaneously Subpart A—General U.S.C. 801 et seq. engaged in the production of material Sec. Active workings. Any place in a coal within the same working section, each 90.1 Scope. mine where miners are normally such MMU is identified separately. 90.2 Definitions. required to work or travel. MRE. The Mining Research 90.3 Part 90 option; notice of eligibility; Approved sampling device. A exercise of option. Establishment of the National Coal sampling device of the constant-flow Board, London, England. Subpart B—Dust Standards, Rights of Part type: MRE instrument. A gravimetric dust 90 Miners (1) Approved by the Secretary and the sampler with a four channel horizontal 90.100 Respirable dust standard when Secretary of Health and Human Services elutriator developed by the MRE. quartz is not present. under part 74 of this title; or MSHA. The Mine Safety and Health 90.101 Respirable dust standard when (2) Approved by the Secretary when Administration of the Department of quartz is present. it has been determined that the Labor. 90.102 Transfer; notice. measured concentration of respirable Normal work duties. Duties which the 90.103 Compensation. dust can be converted to an equivalent 90.104 Waiver of rights; re-exercise of Part 90 miner performs on a routine concentration as measured with a option. day-to-day basis in his or her job sampling device approved under part 70 classification at a mine. Subpart C—Sampling Procedures of this title. Part 90 miner. A miner employed at 90.201 Sampling; general requirements. Certified person. An individual 90.202 Approved sampling devices; certified by the Secretary to take an underground coal mine or at a maintenance and calibration. respirable dust samples and/or to surface work area of an underground 90.203 Approved sampling devices; perform the maintenance and coal mine who has exercised the option operation; air flowrate. calibration of approved sampling under the old section 203(b) program, or 90.204 Respirable dust sampling. devices. under § 90.3 of this part to work in an 90.205 Respirable dust samples; Citation threshold value (CTV). The area of a mine where the average transmission by operator. concentration of respirable dust in the 90.206 Respirable dust samples; report to lowest equivalent concentration measurement demonstrating that the mine atmosphere during each shift to operator and Part 90 miner. which that miner is exposed is 90.207 Violation of respirable dust applicable dust standard has been standard; issuance of citation; action exceeded at a confidence level of at least continuously maintained at or below 1.0 required by operator; and termination of 95 percent. milligrams per cubic meter of air (mg/ 3 citation. Concentration. The amount of m ), and who has not waived these 90.208 Status change reports. respirable dust contained per unit rights. Subpart D—Respirable Dust Control Plans volume of air. Quartz. Crystalline silicon dioxide (SiO2) as measured by: 90.300 Respirable dust control plan; filing District manager. The manager of the Coal Mine Safety and Health District in (1) MSHA’s Analytical Method P–7: requirements; contents. Infrared Determination of Quartz in 90.301 Respirable dust control plan; which the mine is located. approval by district manager; copy to Equivalent concentration. The Respirable Coal Mine Dust; or Part 90 miner. concentration of respirable coal mine (2) Any method approved by MSHA as providing a measurement of quartz Authority: 30 U.S.C. 811, 813(h). dust, as measured by an approved sampling device, converted to an MRE equivalent to that measured by Subpart A—General 8-hour equivalent as follows: Analytical Method P–7. (1) Multiply the concentration Respirable dust. Dust collected with § 90.1 Scope. measured by the approved sampling an approved sampling device. This Part 90 establishes the option of device by the constant factor prescribed Secretary. The Secretary of Labor or a miners who are employed at by the Secretary for that device and then designee. underground coal mines or at surface apply criteria in paragraph (2) of this Surface work area of an underground work areas of underground coal mines definition if applicable. coal mine. The surface areas of land and and who have evidence of the (2) If the sampled shift is longer than all structures, facilities, machinery, development of pneumoconiosis to 8 hours, multiply the concentration tools, equipment, shafts, slopes, work in an area of a mine where the obtained in paragraph (1) of this excavations, and other property, real or average concentration of respirable dust definition by t/480 where t is the length personal, placed upon or above the in the mine atmosphere during each of the sampled work shift in minutes. surface of such land by any person, used shift is continuously maintained at or Mechanized mining unit (MMU). A set in, or to be used in, or resulting from, below 1.0 milligrams per cubic meter of of mining equipment, including hand the work of extracting bituminous coal, air. The proposed rule sets forth loading equipment, used for the lignite, or anthracite from its natural procedures for miners to exercise this production of material; or a specialized deposits underground by any means or option, and establishes the right of set which utilizes mining equipment method, and the work of preparing miners to retain their regular rate of pay other than specified in § 70.206(d). Each extracted coal, and includes custom coal and receive wage increases. The MMU is assigned a four-digit preparation facilities.

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Transfer. (1) Any change in the work (c) Any Part 90 miner who is the average concentration of respirable assignment of a Part 90 miner by the transferred to a position at the same or dust in the mine atmosphere during operator and includes— another coal mine must remain a Part 90 each shift to which a Part 90 miner is (i) any change in occupation code of miner entitled to full rights under this exposed at or below the applicable dust a Part 90 miner; part at the new work assignment. standard, as measured with an approved (ii) any movement of a Part 90 miner (d) The option to work in a low dust sampling device and in terms of an to or from a MMU; or area of the mine may be exercised for equivalent concentration determined in (iii) any assignment of a Part 90 miner the first time by any miner employed at accordance with § 90.2. The applicable to the same occupation in a different an underground coal mine or at a dust standard is determined by dividing location at a mine. surface work area of an underground the average quartz percentage into the (2) A change in work assignment that coal mine who was eligible for the number 10. The application of the lasts no longer than one shift would not option under the old section 203(b) formula must not result in an applicable constitute a transfer under Part 90 if program, or is eligible for the option dust standard in excess of 1.0 mg/m3. circumstances beyond the control of the under this part by signing and dating Example: Assume a Part 90 miner is on a operator interrupt work being performed the Exercise of Option Form and 1.0-mg/m3 applicable dust standard (10% by a Part 90 miner because of equipment mailing the form to the Chief, Division quartz or less). If the first MSHA sample malfunction or absenteeism, and of Health, Coal Mine Safety and Health, contains 12.2% of quartz, and the required MSHA, 1100 Wilson Boulevard, two subsequent samples contained 14.6% necessitate the operator to temporarily and 10.4%, respectively, the average quartz assign the Part 90 miner to perform Arlington, Virginia 22209. (e) The option to work in a low dust percentage would be 12.4% [(12.2% + 14.6% work duties outside of his or her regular + 10.4%)/3 = 12.4%]. Therefore, the average work classification. area of the mine may be re-exercised by concentration of respirable dust in the mine Underground coal mine. An area of any miner employed at an underground atmosphere associated with that Part 90 land and all structures, facilities, coal mine or at a surface work area of miner must, on each shift, be maintained at 3 3 machinery, tools, equipment, shafts, an underground coal mine who or below 0.8 mg/m [10/12.4% = 0.8 mg/m ]. exercised the option under the old slopes, tunnels, excavations, and other § 90.102 Transfer; notice. property, real or personal, placed upon, section 203(b) program, or exercised the option under this part by sending a (a) Whenever a Part 90 miner is under, or above the surface of such land transferred in order to meet the by any person, used in, or to be used in, written request to the Chief, Division of Health, Coal Mine Safety and Health, applicable dust standard in §§ 90.100 or or resulting from the work of extracting 90.101, the operator must transfer the in such area bituminous coal, lignite, or MSHA, 1100 Wilson Boulevard, Arlington, Virginia 22209. The request miner to an existing position at the same anthracite from its natural deposits in coal mine on the same shift or shift the earth by any means or method, and should include the name and address of the mine and operator where the miner rotation on which the miner was the work of preparing the coal so employed immediately before the extracted. is employed. (f) No operator shall require from a transfer. The operator may transfer a Valid sample. A respirable dust Part 90 miner to a different coal mine, sample collected and submitted as miner a copy of the medical information or notification of any chest X-ray a newly-created position or a position required by this part, and not voided by on a different shift or shift rotation if the MSHA. evaluation received from the Secretary or Secretary of Health and Human miner agrees in writing to the transfer. § 90.3 Part 90 option; notice of eligibility; Services. The requirements of this paragraph do exercise of option. not apply when a Part 90 miner’s work position complies with the applicable (a) Any miner employed at an Subpart B—Dust Standards, Rights of dust standard but circumstances, such underground coal mine or at a surface Part 90 Miners as reductions in workforce or changes in work area of an underground coal mine § 90.100 Respirable dust standard when operational methods, require a change who, in the judgment of the Secretary of quartz is not present. in the miner’s job or shift assignment. Health and Human Services, has After the 20th calendar day following (b) On or before the 20th calendar day evidence of the development of receipt of notification from MSHA that following receipt of notification from pneumoconiosis based on a chest X-ray, a Part 90 miner is employed at the mine, MSHA that a Part 90 miner is employed read and classified in the manner the operator must continuously at the mine, the operator must give the prescribed by the Secretary of Health maintain the average concentration of district manager written notice of the and Human Services, or based on other respirable dust in the mine atmosphere occupation and, if applicable, the medical examinations must be afforded during each shift to which the Part 90 mechanized mining unit to which the the option to work in an area of a mine miner in the active workings of the mine Part 90 miner will be assigned on the where the average concentration of is exposed at or below 1.0 mg/m3, as 21st calendar day following receipt of respirable dust in the mine atmosphere measured with an approved sampling the notification from MSHA. during each shift to which that miner is device and in terms of an equivalent (c) After the 20th calendar day exposed is continuously maintained at concentration determined in accordance following receipt of notification from or below 1.0 milligrams per cubic meter with § 90.2. MSHA that a Part 90 miner is employed 3 of air (mg/m ). Each of these miners at the mine, the operator must give the must be notified in writing of eligibility § 90.101 Respirable dust standard when district manager written notice before quartz is present. to exercise the option. any transfer of a Part 90 miner. This (b) Any miner who is a section 203(b) When the respirable dust in the mine notice must include the scheduled date miner on January 31, 1981, must be a atmosphere of the active workings to of the transfer. Part 90 miner on February 1, 1981, which a Part 90 miner is exposed entitled to full rights under this part to contains more than 10 percent quartz, as § 90.103 Compensation. retention of pay rate, future actual wage determined by the average of the most (a) The operator must compensate increases, and future work assignment recent three MSHA samples, the each Part 90 miner at not less than the shift and respirable dust protection. operator must continuously maintain regular rate of pay received by that

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miner immediately before exercising the reassignment upon notice of the miner’s (1) On the Part 90 miner; option under § 90.3. acceptance. If the miner does not accept (2) On the piece of equipment which (b) Whenever a Part 90 miner is the available position in writing, the the Part 90 miner operates within 36 transferred, the operator must miner may be reassigned and inches of the normal working position; compensate the miner at not less than protections under this Part 90 shall not or the regular rate of pay received by that apply. Failure by the miner to act on the (3) At a location that represents the miner immediately before the transfer. written offer of the available position maximum concentration of respirable (c) Paragraphs (a) and (b) of this within 15 days after notice of the offer dust to which the Part 90 miner is section do not apply when a Part 90 is received from the operator shall exposed. miner initiates and accepts a change in operate as an election not to accept the (f) Upon request from the district work assignment for reasons of job available position. manager, the operator must submit the preference. § 90.104 Waiver of rights; re-exercise of date and time when sampling required (d) The operator must compensate by this part will begin. each miner who is a section 203(b) option. miner on January 31, 1981, at not less (a) A Part 90 miner may waive his or § 90.202 Approved sampling devices; than the regular rate of pay that the her rights and be removed from MSHA’s maintenance and calibration. miner is required to receive under active list of miners who have rights (a) Sampling devices must be section 203(b) of the Act immediately under Part 90 by: maintained as approved and calibrated before the effective date of this part. (1) Giving written notification to the by a certified person in accordance with (e) In addition to the compensation Chief, Division of Health, Coal Mine MSHA Informational Report IR 1240 required to be paid under paragraphs Safety and Health, MSHA, that the (1996) ‘‘Calibration and Maintenance (a), (b) and (d) of this section, the miner waives all rights under this part; Procedures for Coal Mine Respirable operator must pay each Part 90 miner (2) Applying for and accepting a Dust Samplers ‘‘(supercedes IR 1121).’’ the actual wage increases that accrue to position in an area of a mine which the To be certified, a person must pass the the classification to which the miner is miner knows exceeds the applicable MSHA examination on maintenance assigned. dust standard; or and calibration for approved sampling (f) If a miner is temporarily employed (3) Refusing to accept another devices. in an occupation other than his or her position offered by the operator at the (b) Sampling devices must be regular work classification for two same coal mine that meets the calibrated at the flowrate of 2.0 liters of months or more before exercising the requirements of §§ 90.100, 90.101 and air per minute, or at a different flowrate option under § 90.3, the miner’s regular 90.102(a) after dust sampling shows that as prescribed by the Secretary and the rate of pay for purposes of paragraph (a) the existing work position exceeds the Secretary of Health and Human Services and (b) of this section is the higher of applicable dust standard. for the particular device, before they are the temporary or regular rates of pay. If (b) If rights under this Part 90 are put into service and, thereafter, at time the temporary assignment is for less waived, the miner gives up all rights intervals prescribed by the than two months, the operator may pay under this Part 90 until the miner re- manufacturer. the Part 90 miner at his or her regular exercises the option in accordance with (c) If equipped with a flowmeter, a work classification rate regardless of the § 90.3(e). calibration mark must be placed on the temporary wage rate. (c) If rights under this Part 90 are flowmeter of each sampling device to (g) If a Part 90 miner is transferred, waived, the miner may re-exercise the and the Secretary subsequently notifies indicate the proper position of the float option under this part in accordance when the sampler is operating at a the miner that notice of the miner’s with § 90.3(e) at any time. eligibility to exercise the Part 90 option flowrate of 2.0 liters of air per minute was incorrect, the operator must retain Subpart C—Sampling Procedures or other flowrate prescribed by the the affected miner in the current Secretary and the Secretary of Health § 90.201 Sampling; general requirements. position to which the miner is assigned and Human Services for the particular and continue to pay the affected miner (a) Each operator must conduct device. The standard to denote proper the applicable rate of pay provided in respirable dust sampling required by flow is when the lowest part of the float paragraphs (a), (b), (d) and (e) of this this part with an approved sampling is lined up with the top of the section, until: device to assure that the assigned work calibration mark. (1) The affected miner and operator position of a new or transferred Part 90 (d) Each sampling device must be agree in writing to a position with pay miner meets §§ 90.100 or 90.101. tested and examined immediately before at not less than the regular rate of pay (b) Sampling must be performed by a each sampling shift and necessary for that occupation; or certified person. To be certified, a external maintenance must be (2) A position is available at the same person must pass the MSHA performed by a certified person to coal mine in both the same occupation examination on sampling of respirable assure that the sampling device is clean and on the same shift on which the coal mine dust. and in proper working condition. This miner was employed immediately (c) The sampling device must be worn testing and examination must include before exercising the option under by each Part 90 miner, must be operated the following: § 90.3 or under the old section 203(b) portal-to-portal, and must be operational (1) Testing the voltage of each battery program. during the Part 90 miner’s entire work while under actual load to assure the (i) When such a position is available, shift. battery is fully charged. The voltage for the operator must offer the available (d) Sampling required by this part nickel cadmium cell batteries must not position in writing to the affected miner must be conducted while the Part 90 be lower than the product of the number with pay at not less than the regular rate miner is performing normal work of cells in the battery pack multiplied by of pay for that occupation. duties. 1.25. The voltage for other than nickel (ii) If the affected miner accepts the (e) Unless otherwise directed by the cadmium cell batteries must not be available position in writing, the district manager, the sampling device lower than the product of the number of operator must implement the miner’s must be placed: cells in the battery pack multiplied by

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the manufacturer’s nominal voltage per (2) Implementing any transfer after samples submitted by the operator in cell value; the 20th calendar day following receipt accordance with this part and samples (2) Examination of all components of of notification from MSHA that a part 90 collected by MSHA: the cyclone to assure that they are clean miner is employed at the mine; and (1) The mine identification number; and free of dust and dirt; (b) When any valid sample collected (2) The location within the mine from (3) Examination of the inner surface of in accordance with either paragraph (a) which the samples were taken; the cyclone on the approved sampling or (b) of this section exceeds the (3) The results of each sample taken device to assure that it is free of scoring; applicable dust standard by at least 0.1 in accordance with this part and by (4) Examination of the external tubing mg/m3, the operator must, within 15 MSHA; on the approved sampling device to calendar days following receipt of (4) The occupation code; assure that it is clean and free of leaks; notification from MSHA: (5) The reason for voiding any sample; and (1) Take corrective action by reducing (6) The Social Security Number of the (5) Examination of the clamping and the respirable dust level in the Part 90 Part 90 miner; and positioning of the cyclone body, vortex miner’s assigned work position or (7) The respirable dust control finder and cassette to assure that they transferring the Part 90 miner to another measures that were being used in the are rigid, in alignment, and firmly in work position that meets the applicable position of the Part 90 miner sampled contact. dust standard; and by MSHA and their measured (e) In accordance with 5 U.S.C. 552(a) (2) Sample the affected Part 90 miner quantities; and 1 CFR, part 51, MSHA until five valid samples are collected. (b) Upon receipt, the operator must Informational Report No. 1240 (1996) (c) When any valid sample taken in provide a copy of this report to the Part referenced in paragraph (a) of this accordance with paragraph (b)(2) of this 90 miner. The operator must not post section is hereby incorporated-by- section exceeds the applicable dust the original or a copy of this report on 3 reference. Copies may be inspected or standard by at least 0.1 mg/m , the the mine bulletin board. obtained at each Coal Mine Safety and operator will be cited for a violation of Health office of MSHA. paragraph (b)(1) of this section. § 90.207 Violation of respirable dust standard; issuance of citation; action § 90.203 Approved sampling devices; § 90.205 Respirable dust samples; required by operator; and termination of operation; air flowrate. transmission by operator. citation. (a) Sampling devices must be (a) Within 24 hours after the end of (a) If a valid equivalent concentration operated at the flowrate of 2.0 liters of the sampling shift, the operator must measurement for any Part 90 miner air per minute, or at a different flowrate transmit, in containers provided by the sampled by MSHA meets or exceeds the as prescribed by the Secretary and the manufacturer of the filter cassette, all citation threshold value (CTV) listed in Secretary of Health and Human Services samples collected to fulfill the Table 70–2 to §70.218 of this title that for the particular device. requirements of this part to: Respirable corresponds to the applicable dust (b) Except as provided in paragraph Dust Processing Laboratory, Pittsburgh standard in effect, the operator will be (c) of this section each sampling device Safety and Health Technology Center, cited for a violation of § 90.100 or must be examined each shift by a person Cochrans Mill Road, Building 38, P.O. § 90.101. certified to sample during: Box 18179, Pittsburgh, Pennsylvania (b) Upon receipt of a citation issued (1) The second hour after being put 15236–0179, or to any other address in accordance with paragraph (a) of this into operation to assure that the designated by the district manager. sampling device is operating properly section, the operator must take the (b) The operator must not open or following action within the time for and at the proper flowrate. If the proper tamper with the seal of any filter flowrate is not maintained, necessary abatement fixed in the citation: cassette or alter the weight of any filter (1) Make approved respiratory adjustments must be made by the cassette before or after it is used. protection equipment available to the certified person. (c) A person certified to take affected Part 90 miner in accordance (2) The last hour of operation to respirable dust samples must properly with § 70.300; assure that the sampling device is complete the dust data card for each (2) Determine the cause and take operating properly and at the proper filter cassette. The card must have an corrective action to reduce the flowrate. If the proper flowrate is not identification number identical to that equivalent concentration of respirable maintained, the respirable dust sample on the cassette used to take the sample coal mine dust to within the applicable must be transmitted to MSHA with a and be submitted to MSHA with the notation by the certified person on the sample. Each card must be signed by the dust standard. If the corrective action back of the dust data card stating that certified person and must include that involves: the proper flowrate was not maintained. person’s certification number. Samples (i) Reducing the respirable dust level Other events occurring during sampling with data cards not properly completed in the position of the Part 90 miner, the that may affect the validity of the will be voided by MSHA. operator must notify the district sample must also be noted on the back (d) All samples submitted by the manager, in writing or by electronic of the dust data card. operator must be considered taken to means, within 24 hours after (c) Paragraph (b)(1) of this section will fulfill the sampling requirements of this implementing the control measures. not apply if the sampling device is being part, unless the sample has been (ii) Transferring the Part 90 miner to operated in a breast or chamber of an identified in writing by the operator to another position at the mine to meet the anthracite coal mine where the full box the district manager, prior to the applicable dust standard, the operator mining method is used. intended sampling shift, as a sample to must comply with § 90.102(c) and then be used for purposes other than required sample the affected miner until five § 90.204 Respirable dust sampling. by this part. valid samples are collected. (a) The operator must collect five (c) The citation will be terminated valid samples for each Part 90 miner § 90.206 Respirable dust samples; report when a valid equivalent concentration within 15 calendar days after: to operator and Part 90 miner. measurement taken by MSHA is at or (1) The 20-day period specified for (a) MSHA will provide the operator a below the applicable dust standard. If each Part 90 miner in § 90.100; and report with the following data on all the violation was abated by:

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(1) Reducing the respirable dust level to the Part 90 miner in the position § 90.301 Respirable dust control plan; in the working position of the Part 90 identified in the citation. The dust approval by district manager; copy to Part miner, the operator must submit a control plan and revisions thereof must 90 miner. respirable dust control plan to the be suitable to the conditions and the (a) The district manager will approve district manager for approval in mining system of the coal mine and each dust control plan on a mine-by- accordance with § 90.300. must be adequate to continuously mine basis. Additional measures may be (2) Transferring the Part 90 miner to maintain respirable dust within the required in plans by the district another position at the mine, a permissible concentration for the Part manager. When approving such plans, respirable dust control plan is not 90 miner in the position identified in the district manager will consider the required to be submitted to the district the citation. results of MSHA sampling and whether: manager for approval. (1) The dust control measures (b) The dust control plan must specified in the plan would be likely to § 90.208 Status change reports. contain the information described below continuously maintain compliance with If there is a change in the status of the and any additional provisions required the applicable dust standard; and Part 90 miner that either affects the by the district manager: (2) The operator’s compliance with all sampling requirements of this part or (1) The mine identification number plan provisions could be readily MSHA’s ability to carry out its sampling assigned by MSHA, the operator’s name, verified by MSHA. responsibilities (such as entering a mine name, mine address, and mine (b) MSHA will conduct sampling to terminated, injured or ill status, or telephone number and the name, monitor the continued effectiveness of returning to work), the operator must address and telephone number of the the approved plan provisions in report the change in the status of the principal officer in charge of health and maintaining compliance with the Part 90 miner to the MSHA District safety at the mine; applicable dust standard. Office or to any other MSHA office (c) The operator must comply with all designated by the district manager. (2) The name and Social Security plan provisions upon notice from Status changes must be reported in number of the Part 90 miner and the MSHA that the dust control plan is writing within 3 working days after the position at the mine to which the plan approved. status change has occurred. applies; (d) The operator must provide a copy (3) A detailed description of the of the dust control plan required under Subpart D—Respirable Dust Control specific dust control measures used to this part to the Part 90 miner. The Plans abate the violation of § 90.100 or operator must not post the original or a § 90.300 Respirable dust control plan; § 90.101; and copy of the plan on the mine bulletin filing requirements; contents. (4) A detailed description of how each board. (e) The operator may review (a) Within 15 calendar days after the of the dust control measures described respirable dust control plans and submit termination date of a citation for in response to paragraph (b)(3) of this proposed revisions to such plans to the violation of § 90.100 or § 90.101, the section will continue to be used by the district manager for approval. operator must submit to the district operator, including at least the specific manager for approval a written time, place and manner the control [FR Doc. 03–3941 Filed 3–5–03; 8:45 am] respirable dust control plan applicable measures will be used. BILLING CODE 4510–43–P

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Part III

Department of Homeland Security Office of the Secretary

6 CFR Part 15 Enforcement of Nondiscrimination on the Basis of Disability in Department of Homeland Security Programs or Activities; Interim Rule

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DEPARTMENT OF HOMELAND (29 U.S.C. 794), as it applies to programs Authority and Issuance SECURITY and activities conducted by the For the reasons set forth above, Department of Homeland Security. It is Office of the Secretary chapter I of 6 CFR is amended by adding an adaptation of a prototype prepared part 15 to read as follows: by the Department of Justice under 6 CFR Part 15 Executive Order 12250 (45 FR 72995, 3 PART 15—ENFORCEMENT OF RIN 1601–AA05 CFR, 1980 Comp., p. 298) and NONDISCRIMINATION ON THE BASIS distributed to Executive agencies. OF DISABILITY IN PROGRAMS OR Enforcement of Nondiscrimination on ACTIVITIES CONDUCTED BY THE III. Procedural Requirements the Basis of Disability in Department of DEPARTMENT OF HOMELAND Homeland Security Programs or Because the DHS came into existence SECURITY Activities on January 24, 2003, it is necessary to Sec. AGENCY: Office of the Secretary, promptly establish procedures to 15.1 Purpose. Homeland Security. facilitate the interaction of the public 15.2 Application. 15.3 Definitions. ACTION: Interim final rule. with the Department. Furthermore, this interim final rule parallels the existing 15.10 Self-evaluation. SUMMARY: This interim final rule operational regulations of other cabinet- 15.11 Notice. establishes for the Department of 15.30 General prohibitions against level agencies to effectuate the discrimination. Homeland Security the necessary provisions of section 504 of the 15.40 Employment. procedures for the enforcement of Rehabilitation Act of 1973. Similar 15.49 Program accessibility; discrimination section 504 of the Rehabilitation Act of regulations were applicable to prohibited. 1973, as amended, which prohibits components being transferred to DHS 15.50 Program accessibility; existing discrimination on the basis of disability, from other cabinet-level agencies and facilities. as it applies to programs or activities 15.51 Program accessibility; new the regulations are only being construction and alterations. conducted by the Department of technically adapted for DHS, imposing Homeland Security. It sets forth 15.60 Communications. no substantive requirement that is 15.70 Compliance procedures. standards for what constitutes different from the existing regulations of Authority: Pub. L. 107–296, 116 Stat. 2135 discrimination on the basis of a mental these cabinet-level agencies. or physical disability, provides a (6 U.S.C. 1 et seq.); 5 U.S.C. 301; 29 U.S.C. Accordingly, the Department has 794. definition for an individual with a determined that notice and public disability and a qualified individual procedure are impracticable and § 15.1 Purpose. with a disability, and establishes a contrary to the public interest pursuant The purpose of this part is to complaint mechanism for resolving to 5 U.S.C. 553(b)(B). For the same effectuate section 504 of the allegations of discrimination. reasons, the Department has determined Rehabilitation Act of 1973 (‘‘Section DATES: This interim final rule is that this interim rule should be issued 504’’), as amended by section 119 of the effective April 7, 2003. Written without a delayed effective date Rehabilitation, Comprehensive Services, comments may be submitted by April 7, pursuant to 5 U.S.C. 553(d)(3). and Developmental Disabilities 2003. Amendments of 1978, which prohibits It has been determined that this ADDRESSES: Submit written comments discrimination on the basis of disability rulemaking is not a significant (preferably an original and three copies) in programs or activities conducted by regulatory action for the purposes of to Associate General Counsel (General Executive agencies. The provisions Law), Department of Homeland Executive Order 12866. Accordingly, a established by this part shall be effective Security, Washington, DC 20528. regulatory impact analysis is not for all components of the Department, required. FOR FURTHER INFORMATION CONTACT: including all Department components Robert Coyle, (202) 282–8410, not a toll Because no notice of proposed that are transferred to the Department, free call. rulemaking is required, the provisions except to the extent that a Department component already has existing section SUPPLEMENTARY INFORMATION: of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply. 504 regulations. I. Background This regulation has been reviewed § 15.2 Application. On November 25, 2002, the President and approved by the Attorney General This part applies to all programs or signed into law the Homeland Security pursuant to Executive Order 12250 and activities conducted by the Department Act of 2002 (Pub. L. 107–296), which has also been reviewed by the Equal of Homeland Security (Department), created the new Department of Employment Opportunity Commission except for programs or activities Homeland Security (DHS). Pursuant to pursuant to Executive Order 12067. conducted outside the United States the provisions of the Act, the new Copies of this regulation have been that do not involve individuals with a Department came into existence on submitted to the appropriate authorizing disability in the United States. January 24, 2003. committees of Congress, and this In order to establish procedures to § 15.3 Definitions. regulation will take effect no earlier facilitate public interaction with the For purposes of this part: than the thirtieth day after the date on DHS Office of the Secretary, DHS is (a) Auxiliary aids means services or which this regulation is so submitted to issuing an initial series of proposed and devices that enable persons with interim final regulations. such committees (See 29 U.S.C. 794.) impaired sensory, manual, or speaking List of Subjects in 6 CFR Part 15 skills to have an equal opportunity to II. The Interim Final Rule participate in, and enjoy the benefits of, This interim final rule provides for Civil rights, Individuals with programs or activities conducted by the the enforcement of section 504 of the disabilities, Reporting and Department. For example, auxiliary aids Rehabilitation Act of 1973, as amended recordkeeping requirements. useful for persons with impaired vision

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include readers, materials in Braille, (3) Has a record of such an Department shall proceed to make the audio recordings and other similar impairment means has a history of, or necessary modifications. services and devices. Auxiliary aids has been misclassified as having, a (b) The Department shall provide an useful for persons with impaired mental or physical impairment that opportunity to interested persons, hearing include telephone handset substantially limits one or more of the including individuals with a disability amplifiers, telephones compatible with individual’s major life activities. or organizations representing hearing aids, telecommunications (4) Is regarded as having an individuals with disabilities, to devices for deaf persons (TTYs), impairment means: participate in the self-evaluation interpreters, notetakers, written (i) Has a physical or mental process. materials and other similar services and impairment that does not substantially (c) The Department shall, until three devices. limit major life activities but is treated years following the completion of the (b) Complete complaint means a by the Department as constituting such self-evaluation, maintain on file and written statement that contains the a limitation; make available for public inspection: complainant’s name and address, and (ii) Has a physical or mental (1) A description of areas examined describes the Department’s alleged impairment that substantially limits and any problems identified; discriminatory action in sufficient detail major life activities only as a result of (2) A description of any modifications to inform the Department of the nature the attitudes of others toward such made; and and date of the alleged violation of impairment; or (3) A list of participants in the self- section 504. It shall be signed by the (iii) Has none of the impairments evaluation process. complainant or by someone authorized defined in paragraph (e)(1) of this (d) If a component within the to do so on his or her behalf. Complaints section but is treated by the Department Department has already complied with filed on behalf of classes of individuals as having such an impairment. the self-evaluation requirement of a with disabilities shall also identify (e) Qualified individual with a regulation implementing section 504, (where possible) the alleged victims of disability means: then the requirements of this section discrimination. (1) With respect to a Department shall apply to only those programs and (c) Facility means all or any portion program or activity under which a activities conducted by that component of a building, structure, equipment, person is required to perform services or that were not included in the previous road, walk, parking lot, rolling stock, or to achieve a level of accomplishment, an self-evaluation. other conveyance, or other real or individual with a disability who meets § 15.11 Notice. personal property. the essential eligibility requirements The Department shall make available (d) Individual with a disability means and who can achieve the purpose of the to all Department employees and any person who has a physical or program or activity without interested persons information mental impairment that substantially modifications in the program or activity regarding the provisions of this part and limits one or more of the individual’s that the Department can demonstrate its applicability to the programs or major life activities, has a record of such would result in a fundamental alteration activities conducted by the Department, an impairment, or is regarded as having in the nature of the program; and and make such information available to such an impairment. For purposes of (2) With respect to any other program them in such a manner as is necessary this definition: or activity, an individual with a to apprise them of the protections (1) Physical or mental impairment disability who meets the essential against discrimination assured them by includes: eligibility requirements for participation section 504 and this part. (i) Any physiological disorder or in, or receipt of benefits from, that condition, cosmetic disfigurement, or program or activity. § 15.30 General prohibitions against anatomical loss affecting one or more of (3) With respect to employment, an discrimination. the following body systems: individual with a disability who (a) No qualified individual with a Neurological; musculoskeletal; special satisfies the requisite skill, experience, disability in the United States, shall, by sense organs; respiratory, including education and other job-related reason of his or her disability, be speech organs, cardiovascular; requirements of the employment excluded from the participation in, be reproductive, digestive; genitourinary; position such individual holds or denied benefits of, or otherwise be hemic and lymphatic; skin; and desires, and who, with or without subjected to discrimination under any endocrine; or reasonable accommodation, can perform program or activity conducted by the (ii) Any mental or psychological the essential functions of such position. Department. disorder such as mental retardation, (f) Section 504 means section 504 of (b)(1) The Department, in providing organic brain syndrome, emotional or the Rehabilitation Act of 1973 (29 U.S.C. any aid, benefit, or service, may not mental illness, and specific learning 794), as amended. As used in this part, directly or through contractual, disabilities. The term physical or mental section 504 applies only to programs or licensing, or other arrangements, on the impairment includes, but is not limited activities conducted by Executive basis of disability: to, such diseases and conditions as agencies and not to federally assisted (i) Deny a qualified individual with a orthopedic, visual, speech and hearing programs. disability the opportunity to participate impairments, cerebral palsy, epilepsy, in or benefit from the aid, benefit, or muscular dystrophy, multiple sclerosis, § 15.10 Self-evaluation. service; cancer, heart disease, diabetes, mental (a) Except as provided in paragraph (ii) Afford a qualified individual with retardation, emotional illness, drug (d) of this section, the Department shall, a disability an opportunity to participate addiction and alcoholism. not later than March 7, 2005, evaluate in or benefit from the aid, benefit, or (2) Major life activities includes its current policies and practices, and service that is not equal to that afforded functions such as caring for one’s self, the effects thereof, to determine if they others; performing manual tasks, walking, meet the requirements of this part. To (iii) Provide a qualified individual seeing, hearing, speaking, breathing, the extent modification of any such with a disability with an aid, benefit, or learning, and working. policy and practice is required, the service that is not as effective in

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affording equal opportunity to obtain (ii) Defeat or substantially impair the § 15.50 Program accessibility; existing the same result, to gain the same benefit, accomplishment of the objectives of a facilities. or to reach the same level of program or activity with respect to (a) General. The Department shall achievement as that provided to others; individuals with a disability. operate each program or activity so that (iv) Provide different or separate aid, (6) The Department, in the selection the program or activity, when viewed in benefits or services to individuals with of procurement contractors, may not use its entirety, is readily accessible to and a disability or to any class of individuals criteria that subject qualified usable by individuals with a disability. with a disability than is provided to individuals with a disability to This paragraph (a) does not require the others unless such action is necessary to discrimination on the basis of disability. Department: provide qualified individuals with a (1) To make structural alterations in disability with aid, benefits or services (7) The Department may not each of its existing facilities in order to that are as effective as those provided to administer a licensing or certification make them accessible to and usable by others; program in a manner that subjects individuals with a disability where qualified individuals with a disability to (v) Deny a qualified individual with a other methods are effective in achieving discrimination on the basis of disability, disability the opportunity to participate compliance with this section; or nor may the Department establish as a member of planning or advisory (2) To take any action that it can requirements for the programs or boards; or demonstrate would result in a activities of licensees or certified (vi) Otherwise limit a qualified fundamental alteration in the nature of entities that subject qualified individual with a disability in the a program or activity or in undue individuals with a disability to financial and administrative burdens. In enjoyment of any right, privilege, discrimination on the basis of disability. those circumstances where Department advantage, or opportunity enjoyed by However, the programs or activities of personnel believe that the proposed others receiving the aid, benefit, or entities that are licensed or certified by action would fundamentally alter the service. the Department are not, themselves, program or activity or would result in (2) For purposes of this part, aids, covered by this part. undue financial and administrative benefits, and services, to be equally burdens, the Department has the burden effective, are not required to produce (c) The exclusion of nondisabled persons from the benefits of a program of proving that compliance with this the identical result or level of paragraph (a) of this section would achievement for individuals with a limited by Federal statute or Executive order to individuals with a disability or result in such alteration or burdens. The disability and for nondisabled persons, decision that compliance would result but must afford individuals with a the exclusion of a specific class of individuals with a disability from a in such alteration or burdens must be disability equal opportunity to obtain made by the Secretary of Homeland the same result, to gain the same benefit, program limited by Federal statute or Executive order to a different class of Security (or his or her designee) after or to reach the same level of considering all agency resources achievement in the most integrated individuals with a disability is not prohibited by this part. available for use in the funding and setting appropriate to the individual’s operation of the conducted program or needs. (d) The Department shall administer activity and must be accompanied by a (3) Even if the Department is programs and activities in the most written statement of the reasons for permitted, under paragraph (b)(1)(iv) of integrated setting appropriate to the reaching that conclusion. If an action this section, to operate a separate or needs of qualified individuals with a would result in such an alteration or different program for individuals with a disability. such burdens, the Department shall take disability or for any class of individuals § 15.40 Employment. any other action that would not result with a disability, the Department must in such an alteration or such burdens permit any qualified individual with a No qualified individual with a but would nevertheless ensure that disability who wishes to participate in disability shall, on the basis of that individuals with a disability receive the the program that is not separate or disability, be subjected to benefits and services of the program or different to do so. discrimination in employment under activity. (4) The Department may not, directly any program or activity conducted by (b) Methods. The Department may or through contractual or other the Department. The definitions, comply with the requirements of this arrangements, utilize criteria or methods requirements and procedures of section section through such means as redesign of administration the purpose or effect 501 of the Rehabilitation Act of 1973 (29 of equipment, reassignment of services of which would: U.S.C. 791), as established by the Equal to accessible buildings, assignment of (i) Subject qualified individuals with Employment Opportunity Commission aides to beneficiaries, home visits, a disability to discrimination on the in 29 CFR part 1614, shall apply to delivery of services at alternate basis of disability; or employment of Federally conducted accessible sites, alteration of existing (ii) Defeat or substantially impair programs or activities. facilities and construction of new accomplishment of the objectives of a facilities, use of accessible rolling stock, program or activity with respect to § 15.49 Program accessibility; or any other methods that result in discrimination prohibited. individuals with a disability. making its programs or activities readily (5) The Department may not, in Except as otherwise provided in accessible to and usable by individuals determining the site or location of a § 15.50, no qualified individual with a with a disability. The Department, in facility, make selections the purpose or disability shall, because the making alterations to existing buildings, effect of which would: Department’s facilities are inaccessible shall meet accessibility requirements to (i) Exclude individuals with a to or unusable by individuals with a the extent required by the Architectural disability from, deny them the benefits disability, be denied the benefits of, be Barriers Act of 1968, as amended (42 of, or otherwise subject them to excluded from participation in, or U.S.C. 4151–4157), and any regulations discrimination under any program or otherwise be subjected to discrimination implementing it. In choosing among activity conducted by the Department; under any program or activity available methods for meeting the or conducted by the Department. requirements of this section, the

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Department shall give priority to those § 15.51 Program accessibility; new (e) In those circumstances where methods that offer programs and construction and alterations. Department personnel believe that the activities to qualified individuals with a Each building or part of a building proposed action would fundamentally disability in the most integrated setting that is constructed or altered by, on alter the program or activity or would appropriate. behalf of, or for the use of the result in undue financial and (c) Time period for compliance. The Department shall be designed, administrative burdens, the Department Department shall comply with the constructed, or altered so as to be has the burden of proving that obligations established under this readily accessible to and usable by compliance with this section would section not later than May 5, 2003, individuals with a disability. The result in such alteration or burdens. The except that where structural changes in definitions, requirements, and standards decision that compliance would result facilities are undertaken, such changes of the Architectural Barriers Act (42 in such alteration or burdens must be shall be made not later than March 6, U.S.C. 4151–4157), as established in 41 made by the Secretary of Homeland 2006, but in any event as expeditiously CFR 101–19.600 through 101–19.607 Security (or his or her designee) after as possible. If a component within the apply to buildings covered by this considering all resources available for Department has already complied with section. use in the funding and operation of the conducted program or activity and must the accessibility requirements of a § 15.60 Communications. regulation implementing section 504, be accompanied by a written statement (a) The Department shall take then the provisions of this paragraph of the reasons for reaching that appropriate steps to effectively shall apply only to facilities for that conclusion. If an action required to communicate with applicants, agency’s programs and activities that comply with this section would result participants, personnel of other Federal were not previously made readily in such an alteration or such burdens, entities, and members of the public. accessible to and usable by individuals the Department shall take any other (1) The Department shall furnish action that would not result in such an with disabilities in compliance with appropriate auxiliary aids where that regulation. alteration or such burdens but would necessary to afford an individual with a nevertheless ensure that, to the (d) Transition plan. In the event that disability an equal opportunity to maximum extent possible, individuals structural changes to facilities will be participate in, and enjoy the benefits of, with a disability receive the benefits and undertaken to achieve program a program or activity conducted by the services of the program or activity. accessibility, the Department shall Department. develop not later than September 8, (i) In determining what type of § 15.70 Compliance procedures. 2003, a transition plan setting forth the auxiliary aid is necessary, the (a) Except as provided in paragraph steps necessary to complete such Department shall give primary (b) of this section, this section applies changes. The Department shall provide consideration to the requests of the to all allegations of discrimination on an opportunity to interested persons, individual with a disability. the basis of disability in programs and including individuals with disabilities (ii) The Department need not provide activities conducted by the Department. or organizations representing individually prescribed devices, readers (b) The Department shall process individuals with disabilities, to for personal use or study, or other complaints alleging violations of section participate in the development of the devices of a personal nature to 504 with respect to employment transition plan by submitting comments applicants or participants in programs. according to the procedures established (both telephonic and written). A copy of (2) Where the Department by the Equal Employment Opportunity the transition plan shall be made communicates with applicants and Commission in 29 CFR part 1614. available for public inspection. If a beneficiaries by telephone, the (c) All other complaints alleging component of the Department has Department shall use violations of section 504 may be sent to already complied with the transition telecommunication devices for deaf the Officer for Civil Rights and Civil plan requirement of a regulation persons (TTYs) or equally effective Liberties, Department of Homeland implementing section 504, then the telecommunication systems to Security, Washington, DC 20528. The requirements of this paragraph shall communicate with persons with Officer for Civil Rights and Civil apply only to the agency’s facilities for impaired hearing. Liberties shall be responsible for programs and activities that were not (b) The Department shall make coordinating implementation of this included in the previous transition plan. available to interested persons, section. The plan shall at a minimum: including persons with impaired vision (d)(1) Any person who believes that (1) Identify physical obstacles in the or hearing, information as to the he or she has been subjected to Department’s facilities that limit the existence and location of accessible discrimination prohibited by this part physical accessibility of its programs or services, activities, and facilities. may by him or herself, or by his or her activities to individuals with (c) The Department shall post notices authorized representative, file a disabilities; at a primary entrance to each of its complaint. Any person who believes inaccessible facilities, directing users to (2) Describe in detail the methods that that any specific class of persons has an accessible facility, or to a location at will be used to make the facilities been subjected to discrimination which they can obtain information accessible; prohibited by this part and who is a about accessible facilities. The member of that class or the authorized (3) Specify the schedule for taking the international symbol for accessibility representative of a member of that class steps necessary to achieve compliance shall be used at each primary entrance may file a complaint. with this section and, if the time period of an accessible facility. (2) The Department shall accept and of the transition plan is longer than one (d) This section does not require the investigate all complete complaints over year, identify steps that will be taken Department to take any action that it can which it has jurisdiction. during each year of the transition demonstrate would result in a (3) All complete complaints must be period; and fundamental alteration in the nature of filed within 180 days of the alleged act (4) Indicate the official responsible for a program or activity or in undue of discrimination. The Department may implementation of the plan. financial and administrative burdens. extend this time period for good cause.

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(e) If the Department receives a required to participate in any within 30 days of the receipt of the complaint over which it does not have investigation under this section shall do appeal. If the Department determines jurisdiction, it shall promptly notify the so as part of their official duties and that it needs additional information complainant and shall make reasonable during the course of regular duty hours. from the complainant, it shall have 30 efforts to refer the complaint to the (3) If a complaint is resolved days from the date it received the appropriate entity of the Federal informally, the terms of the agreement additional information to make its government. shall be reduced to writing and made determination on the appeal. (f) The Department shall notify the part of the complaint file, with a copy (k) The time limits cited in paragraphs Architectural and Transportation of the agreement provided to the (g) and (j) of this section may be Barriers Compliance Board upon receipt complainant. The written agreement extended for an individual case when of any complaint alleging that a building shall describe the subject matter of the or facility that is subject to the complaint and any corrective action to the Officer for Civil Rights and Civil Architectural Barriers Act of 1968, as which the parties have agreed. Liberties determines that there is good cause, based on the particular amended (42 U.S.C. 4151–4157), is not (h) Appeals of the findings of fact and readily accessible to and usable by conclusions of law or remedies must be circumstances of that case, for the individuals with disabilities. filed by the complainant not later than extension. (g)(1) Not later than 180 days from the 60 days after receipt from the (l) The Department may delegate its receipt of a complete complaint over Department of the letter required by authority for conducting complaint which it has jurisdiction, the paragraph (g)(1) of this section. The investigations to other Federal agencies Department shall notify the complainant Department may extend this time for and may contract with nongovernment of the results of the investigation in a good cause. letter containing: investigators to perform the (i) Findings of fact and conclusions of (i) Timely appeals shall be accepted investigation, but the authority for law; and processed by the Officer for Civil making the final determination may not (ii) A description of a remedy for each Rights and Civil Liberties, or designee be delegated to another agency. thereof, who will issue the final agency violation found; and Dated: February 28, 2003. (iii) A notice of the right to appeal. decision which may include appropriate (2) Department employees are corrective action to be taken by the Tom Ridge, required to cooperate in the Department. Secretary of Homeland Security. investigation and attempted resolution (j) The Department shall notify the [FR Doc. 03–5142 Filed 3–5–03; 8:45 am] of complaints. Employees who are complainant of the results of the appeal BILLING CODE 4410–10–P

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Part IV

Department of Homeland Security Office of the Secretary

6 CFR Part 17 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance; Interim Final Rule

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DEPARTMENT OF HOMELAND U.S.C. 1681–1683 and 1685–1688), PART 17—NONDISCRIMINATION ON SECURITY which is designed to eliminate (with THE BASIS OF SEX IN EDUCATION certain exceptions) discrimination on PROGRAMS OR ACTIVITIES Office of the Secretary the basis of sex in any education RECEIVING FEDERAL FINANCIAL program or activity receiving Federal ASSISTANCE 6 CFR Part 17 financial assistance, whether or not Subpart A—Introduction RIN 1601–AA04 such program or activity is offered or sponsored by an educational institution Sec. 17.100 Purpose and effective date. Nondiscrimination on the Basis of Sex as defined in these Title IX regulations. in Education Programs or Activities 17.105 Definitions. III. Procedural Requirements 17.110 Remedial and affirmative action and Receiving Federal Financial self-evaluation. Assistance Because the DHS came into existence 17.115 Assurance required. 17.120 Transfers of property. AGENCY on January 24, 2003, it is necessary to : Office of the Secretary, 17.125 Effect of other requirements. Homeland Security. promptly establish procedures to 17.130 Effect of employment opportunities. ACTION: Interim final rule. facilitate the operations of the new 17.135 Designation of responsible employee Department. Furthermore, this interim and adoption of grievance procedures. SUMMARY: This interim final rule final rule parallels the existing 17.140 Dissemination of policy. establishes for the Department of operational regulations of other cabinet- Subpart B—Coverage Homeland Security the necessary level agencies to effectuate the procedures for effectuating Title IX of 17.200 Application. provisions of Title IX (see 65 FR 52858, 17.205 Educational institutions and other the Education Amendments of 1972, as the final common rule for Title IX for entities controlled by religious amended (except sections 904 and 906 numerous agencies). Similar regulations organizations. of those Amendments), which is were applicable to components being 17.210 Military and merchant marine designed to eliminate (with certain transferred to DHS from other agencies, educational institutions. exceptions) discrimination on the basis 17.215 Membership practices of certain and the regulations are only being of sex in any education program or organizations. technically adapted for DHS, imposing activity receiving Federal financial 17.220 Admissions. assistance, whether or not such program no substantive requirement that is 17.225 Educational institutions eligible to submit transition plans. or activity is offered or sponsored by an different from the existing regulations of other agencies. Accordingly, the 17.230 Transition plans. educational institution as defined in 17.235 Statutory amendments. these Title IX regulations. Department has determined that notice and public procedure are impracticable Subpart C—Discrimination on the Basis of DATES: These interim final rules are and contrary to the public interest Sex in Admission and Recruitment effective on March 6, 2003. Prohibited Written comments may be submitted pursuant to 5 U.S.C. 553(b)(B). For the 17.300 Admission. to the Department of Homeland Security same reasons, the Department has determined that this interim rule should 17.305 Preference in admission. on or before April 7, 2003. 17.310 Recruitment. be issued without a delayed effective ADDRESSES: Submit written comments date pursuant to 5 U.S.C. 553(d)(3). Subpart D—Discrimination on the Basis of (preferably an original and three copies) Sex in Education Programs or Activities to Associate General Counsel (General It has been determined that this Prohibited Law), Department of Homeland rulemaking is not a significant 17.400 Education programs or activities. Security, Washington, DC 20528. regulatory action for the purposes of 17.405 Housing. FOR FURTHER INFORMATION CONTACT: Executive Order 12866. Accordingly, a 17.410 Comparable facilities. Robert Coyle, (202) 282–8410, not a toll regulatory impact analysis is not 17.415 Access to course offerings. free call. required. 17.420 Access to schools operated by LEAs. 17.425 Counseling and use of appraisal and SUPPLEMENTARY INFORMATION: Because no notice of proposed counseling materials. I. Background rulemaking is required, the provisions 17.430 Financial assistance. of the Regulatory Flexibility Act (5 17.435 Employment assistance to students. On November 25, 2002, the President U.S.C. chapter 6) do not apply. 17.440 Health and insurance benefits and signed into law the Homeland Security services. Act of 2002 (Pub. L. 107–296), which This regulation has been reviewed 17.445 Marital or parental status. created the new Department of and approved by the Attorney General 17.450 Athletics. Homeland Security (DHS). Pursuant to pursuant to Executive Order 12250 and 17.455 Textbooks and curricular material. the provisions of the Act, the new reviewed by the Equal Employment Subpart E—Discrimination on the Basis of Department came into existence on Opportunity Commission pursuant to Sex in Employment in Education Programs January 24, 2003. Executive Order 12067. or Activities Prohibited In order to establish procedures to List of Subjects in 6 CFR Part 17 17.500 Employment. facilitate the operations of the new 17.505 Employment criteria. Department, DHS is issuing an initial Civil rights, Education, Equal 17.510 Recruitment. series of proposed and interim final employment opportunity, Sex 17.515 Compensation. regulations. 17.520 Job classification and structure. discrimination. 17.525 Fringe benefits. II. The Interim Final Rule Authority and Issuance 17.530 Marital or parental status. 17.535 Effect of state or local law or other This interim final rule provides those For the reasons set forth above, requirements. procedures necessary to effectuate Title 17.540 Advertising. IX of the Education Amendments of chapter I of 6 CFR is amended by adding 17.545 Pre-employment inquiries. 1972, as amended (except sections 904 part 17 to read as follows: 17.550 Sex as a bona fide occupational and 906 of those Amendments) (20 qualification.

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Subpart F—Procedures recipient that is an institution of the highest graduate degree in any field 17.600 Notice of covered programs. graduate higher education, an of study. 17.605 Enforcement procedures. institution of undergraduate higher (i) Institution of professional 17.635 Forms and instructions; education, an institution of professional education means an institution (except coordination. education, or an institution of any institution of undergraduate higher Authority: Pub. L. 107–296, 116 Stat. 2135 vocational education, as defined in this education) that offers a program of (6 U.S.C. 1 et seq.); 5 U.S.C. 301; 20 U.S.C. section. academic study that leads to a first 1681, 1682, 1683, 1685, 1686, 1687, 1688. (g) Federal financial assistance means professional degree in a field for which any of the following, when authorized there is a national specialized Subpart A—Introduction or extended under a law administered accrediting agency recognized by the § 17.100 Purpose and effective date. by the Federal agency that awards such Secretary of Education. (a) The purpose of these Title IX assistance: (j) Institution of undergraduate higher regulations is to effectuate Title IX of (1) A grant or loan of Federal financial education means: the Education Amendments of 1972, as assistance, including funds made (1) An institution offering at least two amended (except sections 904 and 906 available for: but less than four years of college-level of those Amendments) (20 U.S.C. 1681, (i) The acquisition, construction, study beyond the high school level, 1682, 1683, 1685, 1686, 1687, 1688), renovation, restoration, or repair of a leading to a diploma or an associate which is designed to eliminate (with building or facility or any portion degree, or wholly or principally certain exceptions) discrimination on thereof; and creditable toward a baccalaureate the basis of sex in any education (ii) Scholarships, loans, grants, wages, degree; program or activity receiving Federal or other funds extended to any entity for (2) An institution offering academic financial assistance, whether or not payment to or on behalf of students study leading to a baccalaureate degree; such program or activity is offered or admitted to that entity, or extended or sponsored by an educational institution directly to such students for payment to (3) An agency or body that certifies as defined in these Title IX regulations. that entity. credentials or offers degrees, but that The effective date of these Title IX (2) A grant of Federal real or personal may or may not offer academic study. (k) Institution of vocational education regulations shall be March 6, 2003. property or any interest therein, (b) The provisions established by this including surplus property, and the means a school or institution (except an part shall be effective for all proceeds of the sale or transfer of such institution of professional or graduate or components of the Department, property, if the Federal share of the fair undergraduate higher education) that including all Department components market value of the property is not, has as its primary purpose preparation that are transferred to the Department, upon such sale or transfer, properly of students to pursue a technical, except to the extent that a Department accounted for to the Federal skilled, or semi-skilled occupation or component already has existing Title IX Government. trade, or to pursue study in a technical regulations. (3) Provision of the services of Federal field, whether or not the school or personnel. institution offers certificates, diplomas, § 17.105 Definitions. (4) Sale or lease of Federal property or or degrees and whether or not it offers As used in these Title IX regulations, any interest therein at nominal full-time study. the term: consideration, or at consideration (l) Recipient means any State or (a) Administratively separate unit reduced for the purpose of assisting the political subdivision thereof or any means a school, department, or college recipient or in recognition of public instrumentality of a State or political of an educational institution (other than interest to be served thereby, or subdivision thereof, any public or a local educational agency) admission to permission to use Federal property or private agency, institution, or which is independent of admission to any interest therein without organization, or other entity, or any any other component of such consideration. person, to whom Federal financial institution. (5) Any other contract, agreement, or assistance is extended directly or (b) Admission means selection for arrangement that has as one of its through another recipient and that part-time, full-time, special, associate, purposes the provision of assistance to operates an education program or transfer, exchange, or any other any education program or activity, activity that receives such assistance, enrollment, membership, or except a contract of insurance or including any subunit, successor, matriculation in or at an education guaranty. assignee, or transferee thereof. program or activity operated by a (h) Institution of graduate higher (m) Reviewing authority means that recipient. education means an institution that: component of the Department delegated (c) Applicant means one who submits (1) Offers academic study beyond the authority to review the decisions of an application, request, or plan required bachelor of arts or bachelor of science hearing officers in cases arising under to be approved by an official of the degree, whether or not leading to a these Title IX regulations. Federal agency that awards Federal certificate of any higher degree in the (n) Secretary means Secretary of the financial assistance, or by a recipient, as liberal arts and sciences; Department of Homeland Security. a condition to becoming a recipient. (2) Awards any degree in a (o) Student means a person who has (d) Department means Department of professional field beyond the first gained admission. Homeland Security. professional degree (regardless of (p) Title IX means Title IX of the (e) Designated agency official means whether the first professional degree in Education Amendments of 1972, Public the Officer for Civil Rights and Civil such field is awarded by an institution Law 92–318, 86 Stat. 235, 373 (codified Liberties, or the designee thereof. of undergraduate higher education or as amended at 20 U.S.C. 1681–1688) (f) Educational institution means a professional education); or (except sections 904 and 906 thereof), as local educational agency (LEA) as (3) Awards no degree and offers no amended by section 3 of Public Law 93– defined by 20 U.S.C. 8801(18), a further academic study, but operates 568, 88 Stat. 1855, by section 412 of the preschool, a private elementary or ordinarily for the purpose of facilitating Education Amendments of 1976, Public secondary school, or an applicant or research by persons who have received Law 94–482, 90 Stat. 2234, and by

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section 3 of Public Law 100–259, 102 have resulted from adherence to these obligations, shall include that the Stat. 28, 28–29 (20 U.S.C. 1681, 1682, policies and practices. applicant or recipient will comply with 1683, 1685, 1686, 1687, 1688). (d) Availability of self-evaluation and all applicable Federal statutes relating to (q) Title IX regulations means the related materials. Recipients shall nondiscrimination. These include but provisions of this part. maintain on file for at least three years are not limited to: Title IX of the (r) Transition plan means a plan following completion of the evaluation Education Amendments of 1972, as subject to the approval of the Secretary required under paragraph (c) of this amended (20 U.S.C. 1681–1683, 1685– of Education pursuant to section section, and shall provide to the 1688). 901(a)(2) of the EducationAmendments designated agency official upon request, (2) The designated agency official will of 1972 (20 U.S.C. 1681(a)(2)), under a description of any modifications made specify the extent to which such which an educational institution pursuant to paragraph (c)(2) of this assurances will be required of the operates in making the transition from section and of any remedial steps taken applicant’s or recipient’s subgrantees, being an educational institution that pursuant to paragraph (c)(3) of this contractors, subcontractors, transferees, admits only students of one sex to being section. or successors in interest. one that admits students of both sexes § 17.115 Assurance required. without discrimination. § 17.120 Transfers of property. (a) General. Either at the application If a recipient sells or otherwise § 17.110 Remedial and affirmative action stage or the award stage, Federal transfers property financed in whole or and self-evaluation. agencies must ensure that applications in part with Federal financial assistance (a) Remedial action. If the designated for Federal financial assistance or to a transferee that operates any agency official finds that a recipient has awards of Federal financial assistance education program or activity, and the discriminated against persons on the contain, be accompanied by, or be Federal share of the fair market value of basis of sex in an education program or covered by a specifically identified the property is not upon such sale or activity, such recipient shall take such assurance from the applicant or transfer properly accounted for to the remedial action as the designated recipient, satisfactory to the designated Federal Government, both the transferor agency official deems necessary to agency official, that each education and the transferee shall be deemed to be overcome the effects of such program or activity operated by the recipients, subject to the provisions of discrimination. applicant or recipient and to which §§ 17.205 through 17.235(a). (b) Affirmative action. In the absence these Title IX regulations apply will be of a finding of discrimination on the operated in compliance with these Title § 17.125 Effect of other requirements. basis of sex in an education program or IX regulations. An assurance of (a) Effect of other Federal provisions. activity, a recipient may take affirmative compliance with these Title IX The obligations imposed by these Title action consistent with law to overcome regulations shall not be satisfactory to IX regulations are independent of, and the effects of conditions that resulted in the designated agency official if the do not alter, obligations not to limited participation therein by persons applicant or recipient to whom such discriminate on the basis of sex imposed of a particular sex. Nothing in these assurance applies fails to commit itself by Executive Order 11246, 3 CFR, 1964– Title IX regulations shall be interpreted to take whatever remedial action is 1965 Comp., p. 339; as amended by to alter any affirmative action necessary in accordance with Executive Order 11375, 3 CFR, 1966– obligations that a recipient may have § 17.110(a) to eliminate existing 1970 Comp., p. 684; as amended by under Executive Order 11246, 3 CFR, discrimination on the basis of sex or to Executive Order 11478, 3 CFR, 1966– 1964–1965 Comp., p. 339; as amended eliminate the effects of past 1970 Comp., p. 803; as amended by by Executive Order 11375, 3 CFR, 1966– discrimination whether occurring prior Executive Order 12087, 3 CFR, 1978 1970 Comp., p.684; as amended by to or subsequent to the submission to Comp., p. 230; as amended by Executive Executive Order 11478, 3 CFR, 1966– the designated agency official of such Order 12107, 3 CFR, 1978 Comp., p. 1970 Comp., p. 803; as amended by assurance. 264; sections 704 and 855 of the Public Executive Order 12086, 3 CFR, 1978 (b) Duration of obligation. (1) In the Health Service Act (42 U.S.C. 295m, Comp., p. 230; as amended by Executive case of Federal financial assistance 298b–2); Title VII of the Civil Rights Act Order 12107, 3 CFR, 1978 Comp., p. extended to provide real property or of 1964 (42 U.S.C. 2000e et seq.); the 264. structures thereon, such assurance shall Equal Pay Act of 1963 (29 U.S.C. 206); (c) Self-evaluation. Each recipient obligate the recipient or, in the case of and any other Act of Congress or education institution shall, within one a subsequent transfer, the transferee, for Federal regulation. year of March 6, 2003: the period during which the real (b) Effect of State or local law or other (1) Evaluate, in terms of the property or structures are used to requirements. The obligation to comply requirements of these Title IX provide an education program or with these Title IX regulations is not regulations, its current policies and activity. obviated or alleviated by any State or practices and the effects thereof (2) In the case of Federal financial local law or other requirement that concerning admission of students, assistance extended to provide personal would render any applicant or student treatment of students, and employment property, such assurance shall obligate ineligible, or limit the eligibility of any of both academic and non-academic the recipient for the period during applicant or student, on the basis of sex, personnel working in connection with which it retains ownership or to practice any occupation or the recipient’s education program or possession of the property. profession. activity; (3) In all other cases such assurance (c) Effect of rules or regulations of (2) Modify any of these policies and shall obligate the recipient for the private organizations. The obligation to practices that do not or may not meet period during which Federal financial comply with these Title IX regulations the requirements of these Title IX assistance is extended. is not obviated or alleviated by any rule regulations; and (c) Form. (1) The assurances required or regulation of any organization, club, (3) Take appropriate remedial steps to by paragraph (a) of this section, which athletic or other league, or association eliminate the effects of any may be included as part of a document that would render any applicant or discrimination that resulted or may that addresses other assurances or student ineligible to participate or limit

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the eligibility or participation of any activities extends to employment § 17.205 Educational institutions and other applicant or student, on the basis of sex, therein, and to admission thereto unless entities controlled by religious in any education program or activity §§ 17.300 through 17.310 do not apply organizations. operated by a recipient and that receives to the recipient, and that inquiries (a) Exemption. These Title IX Federal financial assistance. concerning the application of Title IX regulations do not apply to any and these Title IX regulations to such operation of an educational institution § 17.130 Effect of employment or other entity that is controlled by a opportunities. recipient may be referred to the employee designated pursuant to religious organization to the extent that The obligation to comply with these application of these Title IX regulations § 17.135, or to the designated agency Title IX regulations is not obviated or would not be consistent with the official. alleviated because employment religious tenets of such organization. opportunities in any occupation or (2) Each recipient shall make the (b) Exemption claims. An educational profession are or may be more limited initial notification required by institution or other entity that wishes to for members of one sex than for paragraph (a)(1) of this section within claim the exemption set forth in members of the other sex. 90 days of March 6, 2003 or of the date paragraph (a) of this section shall do so § 17.135 Designation of responsible these Title IX regulations first apply to by submitting in writing to the employee and adoption of grievance such recipient, whichever comes later, designated agency official a statement procedures. which notification shall include by the highest-ranking official of the (a) Designation of responsible publication in: institution, identifying the provisions of these Title IX regulations that conflict employee. Each recipient shall designate (i) Newspapers and magazines at least one employee to coordinate its with a specific tenet of the religious operated by such recipient or by organization. efforts to comply with and carry out its student, alumnae, or alumni groups for responsibilities under these Title IX or in connection with such recipient; § 17.210 Military and merchant marine regulations, including any investigation and educational institutions. of any complaint communicated to such (ii) Memoranda or other written These Title IX regulations do not recipient alleging its noncompliance apply to an educational institution with these Title IX regulations or communications distributed to every student and employee of such recipient. whose primary purpose is the training alleging any actions that would be of individuals for a military service of prohibited by these Title IX regulations. (b) Publications. (1) Each recipient the United States or for the merchant The recipient shall notify all its students shall prominently include a statement of marine. and employees of the name, office the policy described in paragraph (a) of address, and telephone number of the this section in each announcement, § 17.215 Membership practices of certain employee or employees appointed bulletin, catalog, or application form organizations. pursuant to this paragraph. that it makes available to any person of (a) Social fraternities and sororities. (b) Complaint procedure of recipient. a type, described in paragraph (a) of this These Title IX regulations do not apply A recipient shall adopt and publish section, or which is otherwise used in to the membership practices of social grievance procedures providing for connection with the recruitment of fraternities and sororities that are prompt and equitable resolution of students or employees. exempt from taxation under section student and employee complaints 501(a) of the Internal Revenue Code of alleging any action that would be (2) A recipient shall not use or 1954, 26 U.S.C. 501(a), the active prohibited by these Title IX regulations. distribute a publication of the type membership of which consists primarily described in paragraph (b)(1) of this of students in attendance at institutions § 17.140 Dissemination of policy. section that suggests, by text or of higher education. (a) Notification of policy. (1) Each illustration, that such recipient treats (b) YMCA, YWCA, Girl Scouts, Boy recipient shall implement specific and applicants, students, or employees Scouts, and Camp Fire Girls. These Title continuing steps to notify applicants for differently on the basis of sex except as IX regulations do not apply to the admission and employment, students such treatment is permitted by these membership practices of the Young and parents of elementary and Title IX regulations. Men’s Christian Association (YMCA), secondary school students, employees, (c) Distribution. Each recipient shall the Young Women’s Christian sources of referral of applicants for distribute without discrimination on the Association (YWCA), the Girl Scouts, admission and employment, and all the Boy Scouts, and Camp Fire Girls. unions or professional organizations basis of sex each publication described in paragraph (b)(1) of this section, and (c) Voluntary youth service holding collective bargaining or organizations. These Title IX regulations professional agreements with the shall apprise each of its admission and employment recruitment representatives do not apply to the membership recipient, that it does not discriminate practices of a voluntary youth service of the policy of nondiscrimination on the basis of sex in the educational organization that is exempt from described in paragraph (a) of this programs or activities that it operates, taxation under section 501(a) of the section, and shall require such and that it is required by Title IX and Internal Revenue Code of 1986 (26 representatives to adhere to such policy. these Title IX regulations not to U.S.C. 501(a)), and the membership of discriminate in such a manner. Such Subpart B—Coverage which has been traditionally limited to notification shall contain such members of one sex and principally to information, and be made in such § 17.200 Application. persons of less than nineteen years of manner, as the designated agency age. official finds necessary to apprise such Except as provided in §§ 17.205 persons of the protections against through 17.235(a), these Title IX § 17.220 Admissions. discrimination assured them by Title IX regulations apply to every recipient and (a) General. Admissions to and these Title IX regulations, but shall to each education program or activity educational institutions prior to June 24, state at least that the requirement not to operated by such recipient that receives 1973, are not covered by these Title IX discriminate in education programs or Federal financial assistance. regulations.

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(b) Administratively separate units. administratively separate units to which (2) Any program or activity of a For the purposes only of this section, the plan is applicable, and the name, secondary school or educational §§ 17.225, 17.230, and 17.300 through address, and telephone number of the institution specifically for: 17.310, each administratively separate person to whom questions concerning (i) The promotion of any Boys State unit shall be deemed to be an the plan may be addressed. The person conference, Boys Nation conference, educational institution. who submits the plan shall be the chief Girls State conference, or Girls Nation (c) Application of §§ 17.300 through administrator or president of the conference; or 17.310. Except as provided in institution, or another individual legally (ii) The selection of students to attend paragraphs (d) and (e) of this section, authorized to bind the institution to all any such conference; §§ 17.300 through 17.310 apply to each actions set forth in the plan. (3) Father-son or mother-daughter recipient. A recipient to which (2) State whether the educational activities at an educational institution or §§ 17.300 through 17.310 apply shall institution or administratively separate in an education program or activity, but not discriminate on the basis of sex in unit admits students of both sexes as if such activities are provided for admission or recruitment in violation of regular students and, if so, when it students of one sex, opportunities for §§ 17.300 through 17.310. began to do so. reasonably comparable activities shall (d) Educational institutions. Except as (3) Identify and describe with respect be provided to students of the other sex; provided in paragraph (e) of this section to the educational institution or (4) Any scholarship or other financial as to recipients that are educational administratively separate unit any assistance awarded by an institution of institutions, §§ 17.300 through 17.310 obstacles to admitting students without higher education to an individual apply only to institutions of vocational discrimination on the basis of sex. because such individual has received education, professional education, (4) Describe in detail the steps such award in a single-sex pageant graduate higher education, and public necessary to eliminate as soon as based upon a combination of factors institutions of undergraduate higher practicable each obstacle so identified related to the individual’s personal education. and indicate the schedule for taking appearance, poise, and talent. The (e) Public institutions of these steps and the individual directly pageant, however, must comply with undergraduate higher education. responsible for their implementation. other nondiscrimination provisions of Sections 17.300 through 17.310 do not (5) Include estimates of the number of Federal law. apply to any public institution of students, by sex, expected to apply for, (c) For purposes of these Title IX undergraduate higher education that be admitted to, and enter each class regulations, program or activity or traditionally and continually from its during the period covered by the plan. program means: establishment has had a policy of (c) Nondiscrimination. No policy or (1) All of the operations of any entity admitting students of only one sex. practice of a recipient to which § 17.225 described in paragraphs (c)(1)(i) through applies shall result in treatment of (iv) of this section, any part of which is § 17.225 Educational institutions eligible applicants to or students of such extended Federal financial assistance: to submit transition plans. recipient in violation of §§ 17.300 (i)(A) A department, agency, special (a) Application. This section applies through 17.310 unless such treatment is purpose district, or other to each educational institution to which necessitated by an obstacle identified in instrumentality of a State or of a local §§ 17.300 through 17.310 apply that: paragraph (b)(3) of this section and a government; or (1) Admitted students of only one sex schedule for eliminating that obstacle (B) The entity of such State or local as regular students as of June 23, 1972; has been provided as required by government that distributes such or paragraph (b)(4) of this section. assistance and each such department or (2) Admitted students of only one sex (d) Effects of past exclusion. To agency (and each other State or local as regular students as of June 23, 1965, overcome the effects of past exclusion of government entity) to which the but thereafter admitted, as regular students on the basis of sex, each assistance is extended, in the case of students, students of the sex not educational institution to which assistance to a State or local admitted prior to June 23, 1965. § 17.225 applies shall include in its government; (b) Provision for transition plans. An transition plan, and shall implement, (ii)(A) A college, university, or other educational institution to which this specific steps designed to encourage postsecondary institution, or a public section applies shall not discriminate on individuals of the previously excluded system of higher education; or the basis of sex in admission or sex to apply for admission to such (B) A local educational agency (as recruitment in violation of §§ 17.300 institution. Such steps shall include defined in 20 U.S.C. 8801), system of through 17.310. instituting recruitment programs that vocational education, or other school emphasize the institution’s commitment system; § 17.230 Transition plans. to enrolling students of the sex (iii)(A) An entire corporation, (a) Submission of plans. An previously excluded. partnership, or other private institution to which § 17.225 applies organization, or an entire sole and that is composed of more than one § 17.235 Statutory amendments. proprietorship: administratively separate unit may (a) This section, which applies to all (1) If assistance is extended to such submit either a single transition plan provisions of these Title IX regulations, corporation, partnership, private applicable to all such units, or a addresses statutory amendments to Title organization, or sole proprietorship as a separate transition plan applicable to IX. whole; or each such unit. (b) These Title IX regulations shall not (2) Which is principally engaged in (b) Content of plans. In order to be apply to or preclude: the business of providing education, approved by the Secretary of Education, (1) Any program or activity of the health care, housing, social services, or a transition plan shall: American Legion undertaken in parks and recreation; or (1) State the name, address, and connection with the organization or (B) The entire plant or other Federal Interagency Committee on operation of any Boys State conference, comparable, geographically separate Education Code of the educational Boys Nation conference, Girls State facility to which Federal financial institution submitting such plan, the conference, or Girls Nation conference; assistance is extended, in the case of

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any other corporation, partnership, (b) Specific prohibitions. (1) In educational institution or other school private organization, or sole determining whether a person satisfies or entity that admits as students only or proprietorship; or any policy or criterion for admission, or predominantly members of one sex, if (iv) Any other entity that is in making any offer of admission, a the giving of such preference has the established by two or more of the recipient to which §§ 17.300 through effect of discriminating on the basis of entities described in paragraphs (c)(1)(i), 17.310 apply shall not: sex in violation of §§ 17.300 through (ii), or (iii) of this section. (i) Give preference to one person over 17.310. (2)(i) Program or activity does not another on the basis of sex, by ranking include any operation of an entity that applicants separately on such basis, or § 17.310 Recruitment. is controlled by a religious organization otherwise; (a) Nondiscriminatory recruitment. A if the application of 20 U.S.C. 1681 to (ii) Apply numerical limitations upon recipient to which §§ 17.300 through such operation would not be consistent the number or proportion of persons of 17.310 apply shall not discriminate on with the religious tenets of such either sex who may be admitted; or the basis of sex in the recruitment and organization. (iii) Otherwise treat one individual admission of students. A recipient may (ii) For example, all of the operations differently from another on the basis of be required to undertake additional of a college, university, or other sex. recruitment efforts for one sex as postsecondary institution, including but (2) A recipient shall not administer or remedial action pursuant to § 17.110(a), not limited to traditional educational operate any test or other criterion for and may choose to undertake such operations, faculty and student housing, admission that has a disproportionately efforts as affirmative action pursuant to campus shuttle bus service, campus adverse effect on persons on the basis of § 17.110(b). restaurants, the bookstore, and other sex unless the use of such test or (b) Recruitment at certain institutions. commercial activities are part of a criterion is shown to predict validly A recipient to which §§ 17.300 through program or activity subject to these Title success in the education program or 17.310 apply shall not recruit primarily IX regulations if the college, university, activity in question and alternative tests or exclusively at educational or other institution receives Federal or criteria that do not have such a institutions, schools, or entities that financial assistance. disproportionately adverse effect are admit as students only or (d)(1) Nothing in these Title IX shown to be unavailable. predominantly members of one sex, if regulations shall be construed to require (c) Prohibitions relating to marital or such actions have the effect of or prohibit any person, or public or parental status. In determining whether discriminating on the basis of sex in private entity, to provide or pay for any a person satisfies any policy or criterion violation of §§ 17.300 through 17.310. benefit or service, including the use of for admission, or in making any offer of facilities, related to an abortion. Medical admission, a recipient to which Subpart D—Discrimination on the procedures, benefits, services, and the §§ 17.300 through 17.310 apply: Basis of Sex in Education Programs or use of facilities, necessary to save the (1) Shall not apply any rule Activities Prohibited life of a pregnant woman or to address concerning the actual or potential complications related to an abortion are parental, family, or marital status of a § 17.400 Education programs or activities. not subject to this section. student or applicant that treats persons (a) General. Except as provided (2) Nothing in this section shall be differently on the basis of sex; elsewhere in these Title IX regulations, construed to permit a penalty to be (2) Shall not discriminate against or no person shall, on the basis of sex, be imposed on any person or individual exclude any person on the basis of excluded from participation in, be because such person or individual is pregnancy, childbirth, termination of denied the benefits of, or be subjected seeking or has received any benefit or pregnancy, or recovery therefrom, or to discrimination under any academic, service related to a legal abortion. establish or follow any rule or practice extracurricular, research, occupational Accordingly, subject to paragraph (d)(1) that so discriminates or excludes; training, or other education program or of this section, no person shall be (3) Subject to § 17.235(d), shall treat activity operated by a recipient that excluded from participation in, be disabilities related to pregnancy, receives Federal financial assistance. denied the benefits of, or be subjected childbirth, termination of pregnancy, or Sections 17.400 through 17.455 do not to discrimination under any academic, recovery therefrom in the same manner apply to actions of a recipient in extracurricular, research, occupational and under the same policies as any connection with admission of its training, employment, or other other temporary disability or physical students to an education program or educational program or activity condition; and activity of a recipient to which operated by a recipient that receives (4) Shall not make pre-admission §§ 17.300 through 17.310 do not apply, Federal financial assistance because inquiry as to the marital status of an or an entity, not a recipient, to which such individual has sought or received, applicant for admission, including §§ 17.300 through 17.310 would not or is seeking, a legal abortion, or any whether such applicant is ‘‘Miss’’ or apply if the entity were a recipient. ‘‘Mrs.’’ A recipient may make pre- benefit or service related to a legal (b) Specific prohibitions. Except as admission inquiry as to the sex of an abortion. provided in §§ 17.400 through 17.455, applicant for admission, but only if such in providing any aid, benefit, or service Subpart C—Discrimination on the inquiry is made equally of such to a student, a recipient shall not, on the Basis of Sex in Admission and applicants of both sexes and if the basis of sex: Recruitment Prohibited results of such inquiry are not used in connection with discrimination (1) Treat one person differently from § 17.300 Admission. prohibited by these Title IX regulations. another in determining whether such (a) General. No person shall, on the person satisfies any requirement or basis of sex, be denied admission, or be § 17.305 Preference in admission. condition for the provision of such aid, subjected to discrimination in A recipient to which §§ 17.300 benefit, or service; admission, by any recipient to which through 17.310 apply shall not give (2) Provide different aid, benefits, or §§ 17.300 through 17.310 apply, except preference to applicants for admission, services or provide aid, benefits, or as provided in §§ 17.225 and 17.230. on the basis of attendance at any services in a different manner;

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(3) Deny any person any such aid, (ii) Shall not facilitate, require, (b)(1) With respect to physical benefit, or service; permit, or consider such participation if education classes and activities at the (4) Subject any person to separate or such action occurs. elementary school level, the recipient shall comply fully with this section as different rules of behavior, sanctions, or § 17.405 Housing. other treatment; expeditiously as possible, but in no (a) General. A recipient shall not, on event later than one year from March 6, (5) Apply any rule concerning the the basis of sex, apply different rules or domicile or residence of a student or 2003. With respect to physical regulations, impose different fees or education classes and activities at the applicant, including eligibility for in- requirements, or offer different services state fees and tuition; secondary and post-secondary levels, or benefits related to housing, except as the recipient shall comply fully with (6) Aid or perpetuate discrimination provided in this section (including this section as expeditiously as possible against any person by providing housing provided only to married but in no event later than three years significant assistance to any agency, students). from March 6, 2003. organization, or person that (b) Housing provided by recipient. (1) (2) This section does not prohibit discriminates on the basis of sex in A recipient may provide separate grouping of students in physical providing any aid, benefit, or service to housing on the basis of sex. education classes and activities by students or employees; or (2) Housing provided by a recipient to ability as assessed by objective (7) Otherwise limit any person in the students of one sex, when compared to that provided to students of the other standards of individual performance enjoyment of any right, privilege, developed and applied without regard advantage, or opportunity. sex, shall be as a whole: (i) Proportionate in quantity to the to sex. (c) Assistance administered by a (3) This section does not prohibit recipient educational institution to number of students of that sex applying for such housing; and separation of students by sex within study at a foreign institution. A (ii) Comparable in quality and cost to physical education classes or activities recipient educational institution may the student. during participation in wrestling, administer or assist in the (c) Other housing. (1) A recipient shall boxing, rugby, ice hockey, football, administration of scholarships, not, on the basis of sex, administer basketball, and other sports the purpose fellowships, or other awards established different policies or practices or major activity of which involves by foreign or domestic wills, trusts, or concerning occupancy by its students of bodily contact. similar legal instruments, or by acts of housing other than that provided by (4) Where use of a single standard of foreign governments and restricted to such recipient. measuring skill or progress in a physical members of one sex, that are designed (2)(i) A recipient which, through education class has an adverse effect on to provide opportunities to study solicitation, listing, approval of housing, members of one sex, the recipient shall abroad, and that are awarded to students or otherwise, assists any agency, use appropriate standards that do not who are already matriculating at or who organization, or person in making have such effect. are graduates of the recipient housing available to any of its students, (5) Portions of classes in elementary institution; Provided, that a recipient shall take such reasonable action as may and secondary schools, or portions of educational institution that administers be necessary to assure itself that such education programs or activities, that or assists in the administration of such housing as is provided to students of deal exclusively with human sexuality scholarships, fellowships, or other one sex, when compared to that may be conducted in separate sessions awards that are restricted to members of provided to students of the other sex, is for boys and girls. one sex provides, or otherwise makes as a whole: (6) Recipients may make requirements available, reasonable opportunities for (A) Proportionate in quantity; and based on vocal range or quality that may similar studies for members of the other (B) Comparable in quality and cost to result in a chorus or choruses of one or sex. Such opportunities may be derived the student. predominantly one sex. from either domestic or foreign sources. (ii) A recipient may render such (d) Aids, benefits or services not assistance to any agency, organization, § 17.420 Access to schools operated by LEAs. provided by recipient. (1) This or person that provides all or part of paragraph (d) applies to any recipient such housing to students of only one A recipient that is a local educational that requires participation by any sex. agency shall not, on the basis of sex, applicant, student, or employee in any exclude any person from admission to: § 17.410 Comparable facilities. education program or activity not (a) Any institution of vocational operated wholly by such recipient, or A recipient may provide separate education operated by such recipient; or that facilitates, permits, or considers toilet, locker room, and shower facilities (b) Any other school or educational such participation as part of or on the basis of sex, but such facilities unit operated by such recipient, unless equivalent to an education program or provided for students of one sex shall be such recipient otherwise makes activity operated by such recipient, comparable to such facilities provided available to such person, pursuant to the including participation in educational for students of the other sex. same policies and criteria of admission, courses, services, and facilities consortia and cooperative employment § 17.415 Access to course offerings. and student-teaching assignments. comparable to each course, service, and (a) A recipient shall not provide any facility offered in or through such (2) Such recipient: course or otherwise carry out any of its schools. (i) Shall develop and implement a education program or activity separately procedure designed to assure itself that on the basis of sex, or require or refuse § 17.425 Counseling and use of appraisal the operator or sponsor of such other participation therein by any of its and counseling materials. education program or activity takes no students on such basis, including (a) Counseling. A recipient shall not action affecting any applicant, student, health, physical education, industrial, discriminate against any person on the or employee of such recipient that these business, vocational, technical, home basis of sex in the counseling or Title IX regulations would prohibit such economics, music, and adult education guidance of students or applicants for recipient from taking; and courses. admission.

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(b) Use of appraisal and counseling require that awards be made to members insurance benefit, service, policy, or materials. A recipient that uses testing of a particular sex specified therein; plan to any of its students, a recipient or other materials for appraising or Provided, that the overall effect of the shall not discriminate on the basis of counseling students shall not use award of such sex-restricted sex, or provide such benefit, service, different materials for students on the scholarships, fellowships, and other policy, or plan in a manner that would basis of their sex or use materials that forms of financial assistance does not violate §§ 17.500 through 17.550 if it permit or require different treatment of discriminate on the basis of sex. were provided to employees of the students on such basis unless such (2) To ensure nondiscriminatory recipient. This section shall not prohibit different materials cover the same awards of assistance as required in a recipient from providing any benefit occupations and interest areas and the paragraph (b)(1) of this section, or service that may be used by a use of such different materials is shown recipients shall develop and use different proportion of students of one to be essential to eliminate sex bias. procedures under which: sex than of the other, including family Recipients shall develop and use (i) Students are selected for award of planning services. However, any internal procedures for ensuring that financial assistance on the basis of recipient that provides full coverage such materials do not discriminate on nondiscriminatory criteria and not on health service shall provide the basis of sex. Where the use of a the basis of availability of funds gynecological care. counseling test or other instrument restricted to members of a particular results in a substantially sex. § 17.445 Marital or parental status. disproportionate number of members of (ii) An appropriate sex-restricted (a) Status generally. A recipient shall one sex in any particular course of study scholarship, fellowship, or other form of not apply any rule concerning a or classification, the recipient shall take financial assistance is allocated to each student’s actual or potential parental, such action as is necessary to assure student selected under paragraph family, or marital status that treats itself that such disproportion is not the (b)(2)(i) of this section; and students differently on the basis of sex. result of discrimination in the (iii) No student is denied the award (b) Pregnancy and related conditions. instrument or its application. for which he or she was selected under (1) A recipient shall not discriminate (c) Disproportion in classes. Where a paragraph (b)(2)(i) of this section against any student, or exclude any recipient finds that a particular class because of the absence of a scholarship, student from its education program or contains a substantially fellowship, or other form of financial activity, including any class or disproportionate number of individuals assistance designated for a member of extracurricular activity, on the basis of of one sex, the recipient shall take such that student’s sex. such student’s pregnancy, childbirth, (c) Athletic scholarships. (1) To the action as is necessary to assure itself false pregnancy, termination of extent that a recipient awards athletic that such disproportion is not the result pregnancy, or recovery therefrom, scholarships or grants-in-aid, it must of discrimination on the basis of sex in unless the student requests voluntarily provide reasonable opportunities for counseling or appraisal materials or by to participate in a separate portion of such awards for members of each sex in counselors. the program or activity of the recipient. proportion to the number of students of (2) A recipient may require such a § 17.430 Financial assistance. each sex participating in interscholastic student to obtain the certification of a (a) General. Except as provided in or intercollegiate athletics. physician that the student is physically paragraphs (b) and (c) of this section, in (2) A recipient may provide separate and emotionally able to continue providing financial assistance to any of athletic scholarships or grants-in-aid for participation as long as such a its students, a recipient shall not: members of each sex as part of separate certification is required of all students (1) On the basis of sex, provide athletic teams for members of each sex for other physical or emotional different amounts or types of such to the extent consistent with this conditions requiring the attention of a assistance, limit eligibility for such paragraph (c) and § 17.450. physician. assistance that is of any particular type § 17.435 Employment assistance to (3) A recipient that operates a portion or source, apply different criteria, or students. of its education program or activity separately for pregnant students, otherwise discriminate; (a) Assistance by recipient in making (2) Through solicitation, listing, admittance to which is completely available outside employment. A approval, provision of facilities, or other voluntary on the part of the student as recipient that assists any agency, services, assist any foundation, trust, provided in paragraph (b)(1) of this organization, or person in making agency, organization, or person that section, shall ensure that the separate employment available to any of its provides assistance to any of such portion is comparable to that offered to students: recipient’s students in a manner that (1) Shall assure itself that such non-pregnant students. (4) Subject to § 17.235(d), a recipient discriminates on the basis of sex; or employment is made available without (3) Apply any rule or assist in shall treat pregnancy, childbirth, false discrimination on the basis of sex; and application of any rule concerning (2) Shall not render such services to pregnancy, termination of pregnancy eligibility for such assistance that treats any agency, organization, or person that and recovery therefrom in the same persons of one sex differently from discriminates on the basis of sex in its manner and under the same policies as persons of the other sex with regard to employment practices. any other temporary disability with marital or parental status. (b) Employment of students by respect to any medical or hospital (b) Financial aid established by recipients. A recipient that employs any benefit, service, plan, or policy that certain legal instruments. (1) A recipient of its students shall not do so in a such recipient administers, operates, may administer or assist in the manner that violates §§ 17.500 through offers, or participates in with respect to administration of scholarships, 17.550. students admitted to the recipient’s fellowships, or other forms of financial educational program or activity. assistance established pursuant to § 17.440 Health and insurance benefits (5) In the case of a recipient that does domestic or foreign wills, trusts, and services. not maintain a leave policy for its bequests, or similar legal instruments or Subject to § 17.235(d), in providing a students, or in the case of a student who by acts of a foreign government that medical, hospital, accident, or life does not otherwise qualify for leave

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under such a policy, a recipient shall (viii) Provision of medical and subjecting employees or students to treat pregnancy, childbirth, false training facilities and services; discrimination prohibited by §§ 17.500 pregnancy, termination of pregnancy, (ix) Provision of housing and dining through 17.550, including relationships and recovery therefrom as a justification facilities and services; and with employment and referral agencies, for a leave of absence for as long a (x) Publicity. with labor unions, and with period of time as is deemed medically (2) For purposes of paragraph (c)(1) of organizations providing or necessary by the student’s physician, at this section, unequal aggregate administering fringe benefits to the conclusion of which the student expenditures for members of each sex or employees of the recipient. shall be reinstated to the status that she unequal expenditures for male and (4) A recipient shall not grant held when the leave began. female teams if a recipient operates or preferences to applicants for sponsors separate teams will not employment on the basis of attendance § 17.450 Athletics. constitute noncompliance with this at any educational institution or entity (a) General. No person shall, on the section, but the designated agency that admits as students only or basis of sex, be excluded from official may consider the failure to predominantly members of one sex, if participation in, be denied the benefits provide necessary funds for teams for the giving of such preferences has the of, be treated differently from another one sex in assessing equality of effect of discriminating on the basis of person, or otherwise be discriminated opportunity for members of each sex. sex in violation of these Title IX against in any interscholastic, (d) Adjustment period. A recipient regulations. intercollegiate, club, or intramural that operates or sponsors (b) Application. Sections 17.500 athletics offered by a recipient, and no interscholastic, intercollegiate, club, or through 17.550 apply to: recipient shall provide any such intramural athletics at the elementary (1) Recruitment, advertising, and the athletics separately on such basis. school level shall comply fully with this process of application for employment; (b) Separate teams. Notwithstanding section as expeditiously as possible but (2) Hiring, upgrading, promotion, consideration for and award of tenure, the requirements of paragraph (a) of this in no event later than one year from demotion, transfer, layoff, termination, section, a recipient may operate or March 6, 2003. A recipient that operates application of nepotism policies, right sponsor separate teams for members of or sponsors interscholastic, each sex where selection for such teams of return from layoff, and rehiring; intercollegiate, club, or intramural (3) Rates of pay or any other form of is based upon competitive skill or the athletics at the secondary or compensation, and changes in activity involved is a contact sport. postsecondary school level shall comply compensation; However, where a recipient operates or fully with this section as expeditiously (4) Job assignments, classifications, sponsors a team in a particular sport for as possible but in no event later than and structure, including position members of one sex but operates or three years from March 6, 2003. descriptions, lines of progression, and sponsors no such team for members of seniority lists; the other sex, and athletic opportunities § 17.455 Textbooks and curricular material. (5) The terms of any collective for members of that sex have previously bargaining agreement; been limited, members of the excluded Nothing in these Title IX regulations (6) Granting and return from leaves of sex must be allowed to try out for the shall be interpreted as requiring or absence, leave for pregnancy, childbirth, team offered unless the sport involved prohibiting or abridging in any way the false pregnancy, termination of is a contact sport. For the purposes of use of particular textbooks or curricular pregnancy, leave for persons of either these Title IX regulations, contact sports materials. sex to care for children or dependents, include boxing, wrestling, rugby, ice Subpart E—Discrimination on the or any other leave; hockey, football, basketball, and other Basis of Sex in Employment in (7) Fringe benefits available by virtue sports the purpose or major activity of Education Programs or Activities of employment, whether or not which involves bodily contact. administered by the recipient; Prohibited (c) Equal opportunity. (1) A recipient (8) Selection and financial support for that operates or sponsors § 17.500 Employment. training, including apprenticeship, interscholastic, intercollegiate, club, or (a) General. (1) No person shall, on professional meetings, conferences, and intramural athletics shall provide equal the basis of sex, be excluded from other related activities, selection for athletic opportunity for members of participation in, be denied the benefits tuition assistance, selection for both sexes. In determining whether of, or be subjected to discrimination in sabbaticals and leaves of absence to equal opportunities are available, the employment, or recruitment, pursue training; (9) Employer-sponsored activities, designated agency official will consider, consideration, or selection therefore, including social or recreational among other factors: whether full-time or part-time, under programs; and (i) Whether the selection of sports and any education program or activity levels of competition effectively (10) Any other term, condition, or operated by a recipient that receives privilege of employment. accommodate the interests and abilities Federal financial assistance. of members of both sexes; (2) A recipient shall make all § 17.505 Employment criteria. (ii) The provision of equipment and employment decisions in any education A recipient shall not administer or supplies; program or activity operated by such operate any test or other criterion for (iii) Scheduling of games and practice recipient in a nondiscriminatory any employment opportunity that has a time; manner and shall not limit, segregate, or disproportionately adverse effect on (iv) Travel and per diem allowance; classify applicants or employees in any persons on the basis of sex unless: (v) Opportunity to receive coaching way that could adversely affect any (a) Use of such test or other criterion and academic tutoring; applicant’s or employee’s employment is shown to predict validly successful (vi) Assignment and compensation of opportunities or status because of sex. performance in the position in question; coaches and tutors; (3) A recipient shall not enter into any and (vii) Provision of locker rooms, contractual or other relationship which (b) Alternative tests or criteria for practice, and competitive facilities; directly or indirectly has the effect of such purpose, which do not have such

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disproportionately adverse effect, are (1) Discriminate on the basis of sex began or to a comparable position, shown to be unavailable. with regard to making fringe benefits without decrease in rate of available to employees or make fringe compensation or loss of promotional § 17.510 Recruitment. benefits available to spouses, families, opportunities, or any other right or (a) Nondiscriminatory recruitment or dependents of employees differently privilege of employment. and hiring. A recipient shall not upon the basis of the employee’s sex; discriminate on the basis of sex in the (2) Administer, operate, offer, or § 17.535 Effect of state or local law or recruitment and hiring of employees. participate in a fringe benefit plan that other requirements. Where a recipient has been found to be does not provide for equal periodic (a) Prohibitory requirements. The presently discriminating on the basis of benefits for members of each sex and for obligation to comply with §§ 17.500 sex in the recruitment or hiring of equal contributions to the plan by such through 17.550 is not obviated or employees, or has been found to have so recipient for members of each sex; or alleviated by the existence of any State discriminated in the past, the recipient (3) Administer, operate, offer, or or local law or other requirement that shall recruit members of the sex so participate in a pension or retirement imposes prohibitions or limits upon discriminated against so as to overcome plan that establishes different optional employment of members of one sex that the effects of such past or present or compulsory retirement ages based on are not imposed upon members of the discrimination. sex or that otherwise discriminates in other sex. (b) Recruitment patterns. A recipient benefits on the basis of sex. (b) Benefits. A recipient that provides shall not recruit primarily or exclusively any compensation, service, or benefit to at entities that furnish as applicants § 17.530 Marital or parental status. members of one sex pursuant to a State only or predominantly members of one (a) General. A recipient shall not or local law or other requirement shall sex if such actions have the effect of apply any policy or take any provide the same compensation, service, discriminating on the basis of sex in employment action: or benefit to members of the other sex. violation of §§ 17.500 through 17.550. (1) Concerning the potential marital, parental, or family status of an § 17.540 Advertising. § 17.515 Compensation. employee or applicant for employment A recipient shall not in any A recipient shall not make or enforce that treats persons differently on the advertising related to employment any policy or practice that, on the basis basis of sex; or indicate preference, limitation, of sex: (2) Which is based upon whether an specification, or discrimination based (a) Makes distinctions in rates of pay employee or applicant for employment on sex unless sex is a bona fide or other compensation; is the head of household or principal occupational qualification for the (b) Results in the payment of wages to wage earner in such employee’s or particular job in question. employees of one sex at a rate less than applicant’s family unit. that paid to employees of the opposite (b) Pregnancy. A recipient shall not § 17.545 Pre-employment inquiries. sex for equal work on jobs the discriminate against or exclude from (a) Marital status. A recipient shall performance of which requires equal employment any employee or applicant not make pre-employment inquiry as to skill, effort, and responsibility, and that for employment on the basis of the marital status of an applicant for are performed under similar working pregnancy, childbirth, false pregnancy, employment, including whether such conditions. termination of pregnancy, or recovery applicant is ‘‘Miss’’ or ‘‘Mrs.’’ therefrom. (b) Sex. A recipient may make pre- § 17.520 Job classification and structure. (c) Pregnancy as a temporary employment inquiry as to the sex of an A recipient shall not: disability. Subject to § 17.235(d), a applicant for employment, but only if (a) Classify a job as being for males or recipient shall treat pregnancy, such inquiry is made equally of such for females; childbirth, false pregnancy, termination applicants of both sexes and if the (b) Maintain or establish separate of pregnancy, recovery therefrom, and results of such inquiry are not used in lines of progression, seniority lists, any temporary disability resulting connection with discrimination career ladders, or tenure systems based therefrom as any other temporary prohibited by these Title IX regulations. on sex; or disability for all job-related purposes, (c) Maintain or establish separate including commencement, duration, § 17.550 Sex as a bona fide occupational lines of progression, seniority systems, and extensions of leave, payment of qualification. career ladders, or tenure systems for disability income, accrual of seniority A recipient may take action otherwise similar jobs, position descriptions, or and any other benefit or service, and prohibited by §§ 17.500 through 17.550 job requirements that classify persons reinstatement, and under any fringe provided it is shown that sex is a bona on the basis of sex, unless sex is a bona benefit offered to employees by virtue of fide occupational qualification for that fide occupational qualification for the employment. action, such that consideration of sex positions in question as set forth in (d) Pregnancy leave. In the case of a with regard to such action is essential to § 17.550. recipient that does not maintain a leave successful operation of the employment policy for its employees, or in the case function concerned. A recipient shall § 17.525 Fringe benefits. of an employee with insufficient leave not take action pursuant to this section (a) ‘‘Fringe benefits’’ defined. For or accrued employment time to qualify that is based upon alleged comparative purposes of these Title IX regulations, for leave under such a policy, a employment characteristics or the term fringe benefits means any recipient shall treat pregnancy, stereotyped characterizations of one or medical, hospital, accident, life childbirth, false pregnancy, termination the other sex, or upon preference based insurance, or retirement benefit, service, of pregnancy, and recovery therefrom as on sex of the recipient, employees, policy or plan, any profit-sharing or a justification for a leave of absence students, or other persons, but nothing bonus plan, leave, and any other benefit without pay for a reasonable period of contained in this section shall prevent or service of employment not subject to time, at the conclusion of which the a recipient from considering an the provisions of § 17.515. employee shall be reinstated to the employee’s sex in relation to (b) Prohibitions. A recipient shall not: status that she held when the leave employment in a locker room or toilet

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facility used only by members of one (42 U.S.C. 2000d) (‘‘Title VI’’) are hereby than responsibility for review as sex. adopted and applied to these Title IX provided in § 17.625(e)), including the regulations. These procedures may be achievements of effective coordination Subpart F—Procedures found at 6 CFR part 21. and maximum uniformity within the § 17.600 Notice of covered programs. Department and within the Executive § 17.635 Forms and instructions; Branch of the Government in the coordination. Within 60 days of March 6, 2003, each application of Title IX and these Title IX component of the Department that (a) Forms and instructions. The regulations to similar programs and in awards Federal financial assistance designated agency official shall issue similar situations. Any action taken, shall publish in the Federal Register a and promptly make available to determination made, or requirement notice of the programs covered by these interested persons forms and detailed imposed by an official of another Title IX regulations. Each such instructions and procedures for department or agency acting pursuant to component shall periodically republish effectuating these Title IX regulations. an assignment of responsibility under the notice of covered programs to reflect (b) Supervision and coordination. The this section shall have the same effect as changes in covered programs. Copies of designated agency official may from though such action had been taken by this notice also shall be made available time to time assign to officials of the the designated official of this upon request to the Department’s office Department, or to officials of other Department. that enforces Title IX. departments or agencies of the Government with the consent of such Dated: February 28, 2003. § 17.605 Enforcement procedures. departments or agencies, Tom Ridge, The investigative, compliance, and responsibilities in connection with the Secretary of Homeland Security. enforcement procedural provisions of effectuation of the purposes of Title IX [FR Doc. 03–5143 Filed 3–5–03; 8:45 am] Title VI of the Civil Rights Act of 1964 and these Title IX regulations (other BILLING CODE 4410–10–P

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Part V

Department of Homeland Security Office of the Secretary

6 CFR Part 21 Regulations Regarding Nondiscrimination on the Basis of Race, Color, or National Origin in Programs or Activities Receiving Federal Financial Assistance from the Department of Homeland Security; Interim Final Rule

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DEPARTMENT OF HOMELAND in, be denied the benefits of, or be 21.1 Purpose. SECURITY otherwise subjected to discrimination 21.3 Application. under any program or activity receiving 21.4 Definitions. Office of the Secretary 21.5 Discrimination prohibited. Federal financial assistance from the 21.7 Assurances required. Department of Homeland Security. 21.9 Compliance information. 6 CFR Part 21 III. Procedural Requirements 21.11 Conduct of investigations. RIN Number 1601–AA03 21.13 Procedure for effecting compliance. Because the DHS came into existence 21.15 Hearings. Regulations Regarding on January 24, 2003, it is necessary to 21.17 Decisions and notices. Nondiscrimination on the Basis of promptly establish procedures to 21.19 Judicial review. facilitate the operations of the new 21.21 Effect on other regulations, forms, Race, Color, or National Origin in and instructions. Programs or Activities Receiving Department. Furthermore, this interim final rule parallels the existing Appendix A to Part 21—Activities to Which Federal Financial Assistance From the This Part Applies Department of Homeland Security operational regulations of other cabinet- Appendix B to Part 21—Activities to Which level agencies to effectuate the This Part Applies When a Primary AGENCY: Office of the Secretary, provisions of title VI of the Civil Rights Objective of the Federal Financial Homeland Security. Act of 1964. Similar regulations were Assistance Is to Provide Employment ACTION: Interim final rule. applicable to virtually all of the Authority: 5 U.S.C. 310, 42 U.S.C. 2000d– components being transferred to DHS 2000d–7. SUMMARY: This interim final rule from other cabinet-level agencies and effectuates the provisions of title VI of the regulations are only being § 21.1 Purpose. the Civil Rights Act of 1964 to the end technically adapted for DHS, imposing The purpose of this part is to that no person in the United States no substantive requirement that is effectuate the provisions of title VI of shall, on the grounds of race, color, or different from the existing regulations of the Civil Rights Act of 1964 (the Act) to national origin, be excluded from these cabinet-level agencies. the end that no person in the United participation in, be denied the benefits Accordingly, the Department has States shall, on the grounds of race, of, or be otherwise subjected to determined that notice and public color, or national origin, be excluded discrimination under any program or procedure are impracticable and from participation in, be denied the activity receiving Federal financial contrary to the public interest pursuant benefits of, or be otherwise subjected to assistance from the Department of to 5 U.S.C. 553(b)(B). For the same discrimination under any program or Homeland Security. reasons, the Department has determined activity receiving Federal financial DATES: These interim final rules are that this interim rule should be issued assistance from the Department of effective March 6, 2003. Written without a delayed effective date Homeland Security. The provisions comments may be submitted to the pursuant to 5 U.S.C. 553 (d)(3). established by this part shall be effective Department of Homeland Security on or It has been determined that this for all components of the Department, before April 7, 2003. rulemaking is not a significant including all Department components ADDRESSES: Submit written comments regulatory action for the purposes of that are transferred to the Department, (preferably an original and three copies) Executive Order 12866. Accordingly, a except to the extent that a Department to Associate General Counsel (General regulatory impact analysis is not component already has existing title VI Law), Department of Homeland required. regulations. Because no notice of proposed Security, Washington, DC 20528. § 21.3 Application. FOR FURTHER INFORMATION CONTACT: rulemaking is required, the provisions of the Regulatory Flexibility Act (5 (a) This part applies to any program Robert Coyle, (202) 282–8410, not a toll for which Federal financial assistance is free call. U.S.C. chapter 6) do not apply. This regulation has been reviewed authorized under a law administered by SUPPLEMENTARY INFORMATION: and approved by the Attorney General the Department, including the types of I. Background pursuant to Executive Order 12250 and Federal financial assistance listed in reviewed by the Equal Employment appendix A to this part. It also applies On November 25, 2002, the President Opportunity Commission pursuant to to money paid, property transferred, or signed into law the Homeland Security Executive Order 12067. other Federal financial assistance Act of 2002 (Pub. L. 107–296), which extended after the effective date of this created the new Department of List of Subjects in 6 CFR Part 21 part pursuant to an application Homeland Security (DHS). Pursuant to Civil rights, Reporting and approved before that effective date. This the provisions of the Act, the new recordkeeping requirements. part does not apply to: Department came into existence on (1) Any Federal financial assistance January 24, 2003. Authority and Issuance by way of insurance or guaranty In order to establish procedures to For the reasons set forth above, 6 CFR contracts; facilitate the operations of the new chapter I is amended by adding part 21 (2) Money paid, property transferred, Department, DHS is issuing an initial to read as follows: or other assistance extended before the series of proposed and interim final effective date of this part, except where regulations. PART 21—NONDISCRIMINATION ON such assistance was subject to the title II. The Interim Final Rule THE BASIS OF RACE, COLOR, OR VI regulations of any agency whose NATIONAL ORIGIN IN PROGRAMS OR responsibilities are now exercised by This interim final rule effectuates the ACTIVITIES RECEIVING FEDERAL this Department; provisions of title VI of the Civil Rights FINANCIAL ASSISTANCE FROM THE (3) Any assistance to any individual Act of 1964 to the end that no person DEPARTMENT OF HOMELAND who is the ultimate beneficiary; or in the United States shall, on the SECURITY (4) Any employment practice, under grounds of race, color, or national any such program, of any employer, origin, be excluded from participation Sec. employment agency, or labor

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organization, except to the extent (1)(i) A department, agency, special discrimination under, any program to described in § 21.5(c). The fact that a purpose district, or other which this part applies. type of Federal financial assistance is instrumentality of a State or of a local (b) Specific discriminatory actions not listed in appendix A to this part government; or prohibited. (1) A recipient to which this shall not mean, if title VI of the Act is (ii) The entity of such State or local part applies may not, directly or through otherwise applicable, that a program is government that distributes such contractual or other arrangements, on not covered. Other types of Federal assistance and each such department or the grounds of race, color, or national financial assistance under statutes now agency (and each other State or local origin: in force or hereinafter enacted may be government entity) to which the (i) Deny a person any service, added to appendix A to this part. assistance is extended, in the case of financial aid, or other benefit provided (b) In any program receiving Federal assistance to a State or local under the program; financial assistance in the form, or for government; (ii) Provide any service, financial aid, the acquisition, of real property or an (2)(i) A college, university, or other or other benefit to a person which is interest in real property, to the extent postsecondary institution, or a public different, or is provided in a different that rights to space on, over, or under system of higher education; or manner, from that provided to others any such property are included as part (ii) A local educational agency (as under the program; of the program receiving that assistance, defined in 20 U.S.C. 8801), system of (iii) Subject a person to segregation or the nondiscrimination requirement of vocational education, or other school separate treatment in any matter related this part shall extend to any facility system; to his receipt of any service, financial located wholly or in part in that space. (3)(i) An entire corporation, aid, or other benefit under the program; partnership, or other private (iv) Restrict a person in any way in § 21.4 Definitions. organization, or an entire sole the enjoyment of any advantage or Unless the context requires otherwise, proprietorship— privilege enjoyed by others receiving as used in this part: (A) If assistance is extended to such any service, financial aid, or other (a) Applicant means a person who corporation, partnership, private benefit under the program; submits an application, request, or plan organization, or sole proprietorship as a (v) Treat a person differently from required to be approved by the whole; or others in determining whether he Secretary, or designee thereof, or by a (B) Which is principally engaged in satisfies any admission, enrollment, primary recipient, as a condition to the business of providing education, quota, eligibility, membership, or other eligibility for Federal financial health care, housing, social services, or requirement or condition which persons assistance, and application means such parks and recreation; or must meet in order to be provided any an application, request, or plan. (ii) The entire plant or other service, financial aid, or other benefit (b) Facility includes all or any part of comparable, geographically separate provided under the program; structures, equipment, or other real or facility to which Federal financial (vi) Deny a person an opportunity to personal property or interests therein, assistance is extended, in the case of participate in the program through the and the provision of facilities includes any other corporation, partnership, provision of services or otherwise or the construction, expansion, renovation, private organization or sole afford him an opportunity to do so remodeling, alteration or acquisition of proprietorship; or which is different from that afforded facilities. (4) Any other entity which is others under the program; or (c) Federal financial assistance established by two or more of the (vii) Deny a person the opportunity to includes: entities described in paragraph (e)(1), participate as a member of a planning, (1) Grants and loans of Federal funds; (2), or (3) of this section. advisory, or similar body which is an (2) The grant or donation of Federal (f) Recipient may mean any State, integral part of the program. property and interests in property; territory, possession, the District of (2) A recipient, in determining the (3) The detail of Federal personnel; Columbia, or the Commonwealth of types of services, financial aid, or other (4) The sale and lease of, and the Puerto Rico, or any political subdivision benefits, or facilities which will be permission to use (on other than a thereof, or instrumentality thereof, any provided under any such program, or casual or transient basis), Federal public or private agency, institution, or the class of person to whom, or the property or any interest in such organization, or other entity, or any situations in which, such services, property without consideration or at a individual, in any State, territory, financial aid, other benefits, or facilities nominal consideration, or at a possession, the District of Columbia, or will be provided under any such consideration which is reduced for the the Commonwealth of Puerto Rico, to program, or the class of persons to be purpose of assisting the recipient, or in whom Federal financial assistance is afforded an opportunity to participate in recognition of the public interest to be extended, directly or through another any such program; may not, directly or served by such sale or lease to the recipient, including any successor, through contractual or other recipient; and assignee, or transferee thereof, but such arrangements, utilize criteria or methods (5) Any Federal agreement, term does not include any ultimate of administration which have the effect arrangement, or other contract which beneficiary. of subjecting persons to discrimination has as one of its purposes the provision (g) Secretary means the Secretary of because of their race, color, or national of assistance. the Department of Homeland Security origin or have the effect of defeating or (d) Primary recipient means any or, except in § 21.17(e), any delegatee of substantially impairing accomplishment recipient that is authorized or required the Secretary. of the objectives of the program with to extend Federal financial assistance to respect to individuals of a particular another recipient. § 21.5 Discrimination prohibited. race, color, or national origin. (e) Program or activity and program (a) General. No person in the United (3) In determining the site or location mean all of the operations of any entity States shall, on the grounds of race, of facilities, a recipient or applicant may described in paragraphs (e)(1) through color, or national origin be excluded not make selections with the purpose or (4) of this section, any part of which is from participation in, be denied the effect of excluding persons from, extended Federal financial assistance: benefits of, or be otherwise subjected to denying them the benefits of, or

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subjecting them to discrimination under employees are treated during assistance is to provide or is in the form any program to which this regulation employment, without regard to their of personal property, or real property or applies, on the grounds of race, color, or race, color, or national origin. The interest therein or structures thereon, national origin; or with the purpose or requirements applicable to construction the assurance shall obligate the effect of defeating or substantially employment under any such program recipient, or, in the case of a subsequent impairing the accomplishment of the shall be those specified in or pursuant transfer, the transferee, for the period objectives of the Act or this part. to Part III of Executive Order 11246 or during which the property is used for a (4) As used in this section the any Executive order which supersedes purpose for which the Federal financial services, financial aid, or other benefits it. assistance is extended or for another provided under a program receiving (2) Federal financial assistance to purpose involving the provision of Federal financial assistance include any programs under laws funded or similar services or benefits, or for as service, financial aid, or other benefit administered by the Department which long as the recipient retains ownership provided in or through a facility have as a primary objective the or possession of the property, whichever provided with the aid of Federal providing of employment include those is longer. In all other cases the financial assistance. set forth in appendix B to this part. assurance shall obligate the recipient for (5) The enumeration of specific forms (3) Where a primary objective of the the period during which Federal of prohibited discrimination in this Federal financial assistance is not to financial assistance is extended to the paragraph does not limit the generality provide employment, but program. The Secretary shall specify the of the prohibition in paragraph (a) of discrimination on the grounds of race, form of the foregoing assurances, and this section. color, or national origin in the the extent to which like assurances will (6) This part does not prohibit the employment practices of the recipient or be required of subgrantees, contractors consideration of race, color, or national other persons subject to the regulation and subcontractors, transferees, origin if the purpose and effect are to tends, on the grounds of race, color, or successors in interest, and other remove or overcome the consequences national origin, to exclude individuals participants. Any such assurance shall of practices or impediments which have from participation in, deny them the include provisions which give the restricted the availability of, or benefits of, or subject them to United States a right to seek its judicial participation in, the program or activity discrimination under any program to enforcement. receiving Federal financial assistance, which this regulation applies, the on the grounds of race, color, or national provisions of paragraph (c)(1) of this (2) In the case where Federal financial origin. Where prior discriminatory section shall apply to the employment assistance is provided in the form of a practice or usage tends, on the grounds practices of the recipient or other transfer of real property, structures, or of race, color, or national origin to persons subject to the regulation, to the improvements thereon, or interest exclude individuals from participation extent necessary to assure equality of therein, from the Federal Government, in, to deny them the benefits of, or to opportunity to, and nondiscriminatory the instrument effecting or recording the subject them to discrimination under treatment of, beneficiaries. transfer shall contain a covenant any program or activity to which this (d) Facility location or site. A running with the land assuring part applies, the applicant or recipient recipient may not make a selection of a nondiscrimination for the period during must take affirmative action to remove site or location of a facility if the which the real property is used for a or overcome the effects of the prior purpose of that selection, or its effect purpose for which the Federal financial discriminatory practice or usage. Even when made, is to exclude individuals assistance is extended or for another in the absence of prior discriminatory from participation in, to deny them the purpose involving the provision of practice or usage, a recipient in benefits of, or to subject them to similar services or benefits. Where no administering a program or activity to discrimination under any program or transfer of property or interest therein which this part applies, may take activity to which this rule applies, on from the Federal Government is affirmative action to assure that no the grounds of race, color, or national involved, but property is acquired or person is excluded from participation in origin; or if the purpose is to, or its improved with Federal financial or denied the benefits of the program or effect when made will substantially assistance, the recipient shall agree to activity on the grounds of race, color, or impair the accomplishment of the include such covenant in any national origin. objectives of this part. subsequent transfer of such property. (c) Employment practices. (1) Where a When the property is obtained from the primary objective of the Federal § 21.7 Assurances required. Federal Government, such covenant financial assistance to a program to (a) General. (1) Every application for may also include a condition coupled which this part applies is to provide Federal financial assistance to which with a right to be reserved by the employment, a recipient subject to this this part applies, except an application Department to revert title to the part shall not, directly or through to which paragraph (b) of this section property in the event of a breach of the contractual or other arrangements, applies, and every application for covenant where, in the discretion of the subject a person to discrimination on Federal financial assistance to provide a Secretary, such a condition and right of the ground of race, color, or national facility shall, as a condition to its reverter is appropriate to the statute origin in its employment practices approval and the extension of any under which the real property is under such program (including Federal financial assistance pursuant to obtained and to the nature of the grant recruitment or recruitment advertising, the application, contain or be and the grantee. In such event if a hiring, firing, upgrading, promotion, accompanied by, an assurance that the transferee of real property proposes to demotion, transfer, layoff, termination, program will be conducted or the mortgage or otherwise encumber the rates of pay or other forms of facility operated in compliance with all real property as security for financing compensation or benefits, selection for requirements imposed by or pursuant to construction of new, or improvement of training or apprenticeship, and use of this part. Every award of Federal existing, facilities on such property for facilities). Such recipient shall take financial assistance shall require the the purposes for which the property was affirmative action to insure that submission of such an assurance. In the transferred, the Secretary may agree, applicants are employed, and case where the Federal financial upon request of the transferee and if

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necessary to accomplish such financing, to ascertain whether the recipient has pertinent practices and policies of the and upon such conditions as he deems complied or is complying with this part. recipient, the circumstances under appropriate, to subordinate such right of In the case in which a primary recipient which the possible noncompliance with reversion to the lien of such mortgage or extends Federal financial assistance to this part occurred, and other factors other encumbrance. any other recipient, such other recipient relevant to a determination as to (b) Continuing Federal financial shall also submit such compliance whether the recipient has failed to assistance. Every application by a State reports to the primary recipient as may comply with this part. or a State agency for continuing Federal be necessary to enable the primary (d) Resolution of matters. (1) If an financial assistance to which this part recipient to carry out its obligations investigation pursuant to paragraph (c) applies (including the types of Federal under this part. In general, recipients of this section indicates a failure to financial assistance listed in appendix A should have available for the Secretary comply with this part, the Secretary will to this part) shall as a condition to its racial and ethnic data showing the so inform the recipient and the matter approval and the extension of any extent to which members of minority will be resolved by informal means Federal financial assistance pursuant to groups are beneficiaries of programs whenever possible. If it has been the application: receiving Federal financial assistance. determined that the matter cannot be (1) Contain or be accompanied by a (c) Access to sources of information. resolved by informal means, action will statement that the program is (or, in the Each recipient shall permit access by be taken as provided for in § 21.13. case of a new program, will be) the Secretary during normal business (2) If an investigation does not conducted in compliance with all hours to such of its books, records, warrant action pursuant to paragraph requirements imposed by or pursuant to accounts, and other sources of (d)(1) of this section the Secretary will this part; and information, and its facilities as may be so inform the recipient and the (2) Provide or be accompanied by pertinent to ascertain compliance with complainant, if any, in writing. provision for such methods of this part. Where any information (e) Intimidatory or retaliatory acts administration for the program as are required of a recipient is in the prohibited. No recipient or other person found by the Secretary to give exclusive possession of any other shall intimidate, threaten, coerce, or reasonable guarantee that the applicant agency, institution, or person and this discriminate against any individual for and all recipients of Federal financial agency, institution, or person fails or the purpose of interfering with any right assistance under such program will refuses to furnish this information, the or privilege secured by section 601 of comply with all requirements imposed recipient shall so certify in its report the Act or this part, or because he has by or pursuant to this part. and shall set forth what efforts it has made a complaint, testified, assisted, or (c) Assurance from institutions. (1) In made to obtain the information. participated in any manner in an the case of any application for Federal (d) Information to beneficiaries and investigation, proceeding, or hearing financial assistance to an institution of participants. Each recipient shall make under this part. The identity of higher education (including assistance available to participants, beneficiaries, complainants shall be kept confidential for construction, for research, for special and other interested persons such except to the extent necessary to carry training projects, for student loans or for information regarding the provisions of out the purposes of this part, including any other purpose), the assurance this part and its applicability to the the conduct of any investigation, required by this section shall extend to program for which the recipient receives hearing, or judicial proceeding arising admission practices and to all other Federal financial assistance, and make thereunder. practices relating to the treatment of such information available to them in students. such manner, as the Secretary finds § 21.13 Procedure for effecting (2) The assurance required with necessary to apprise such persons of the compliance. respect to an institution of higher protections against discrimination (a) General. If there appears to be a education, hospital, or any other assured them by the Act and this part. failure or threatened failure to comply institution, insofar as the assurance with this part, and if the noncompliance relates to the institution’s practices with § 21.11 Conduct of investigations. or threatened noncompliance cannot be respect to admission or other treatment (a) Periodic compliance reviews. The corrected by informal means, of individuals as students, patients, or Secretary shall from time to time review compliance with this part may be clients of the institution or to the the practices of recipients to determine effected by the suspension or opportunity to participate in the whether they are complying with this termination of or refusal to grant or to provision of services or other benefits to part. continue Federal financial assistance or such individuals, shall be applicable to (b) Complaints. Any person who by any other means authorized by law. the entire institution. believes that he or she, or any specific Such other means may include, but are class of persons, has been subjected to not limited to: § 21.9 Compliance information. discrimination prohibited by this part (1) A referral to the Department of (a) Cooperation and assistance. The may by himself or herself, or by a Justice with a recommendation that Secretary shall to the fullest extent representative, file with the Secretary a appropriate proceedings be brought to practicable seek the cooperation of written complaint. A complaint must be enforce any rights of the United States recipients in obtaining compliance with filed not later than 180 days after the under any law of the United States this part and shall provide assistance date of the alleged discrimination, (including other titles of the Act), or any and guidance to recipients to help them unless the time for filing is extended by assurance or other contractual comply voluntarily with this part. the Secretary. undertaking; and (b) Compliance reports. Each recipient (c) Investigations. The Secretary will (2) any applicable proceeding under shall keep such records and submit to make a prompt investigation whenever State or local law. the Secretary timely, complete, and a compliance review, report, complaint, (b) Noncompliance with § 21.7. If an accurate compliance reports at such or any other information indicates a applicant fails or refuses to furnish an times, and in such form and containing possible failure to comply with this assurance required under § 21.7 or such information, as the Secretary may part. The investigation will include, otherwise fails or refuses to comply determine to be necessary to enable him where appropriate, a review of the with a requirement imposed by or

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pursuant to that section, Federal the regulation and to take such in paragraph (a) of this section, taking financial assistance may be refused in corrective action as may be appropriate. of testimony, exhibits, arguments and accordance with the procedures of briefs, requests for findings, and other paragraph (c) of this section. The § 21.15 Hearings. related matters. Both the Department Department shall not be required to (a) Opportunity for hearing. Whenever and the applicant or recipient shall be provide assistance in such a case during an opportunity for a hearing is required entitled to introduce all relevant the pendency of the administrative by § 21.13(c), reasonable notice shall be evidence on the issues as stated in the proceedings under such paragraph. given by registered or certified mail, notice for hearing or as determined by However, subject to § 21.21, the return receipt requested, to the affected the officer conducting the hearing at the Department shall continue assistance applicant or recipient. This notice shall outset of or during the hearing. during the pendency of such advise the applicant or recipient of the (2) Technical rules of evidence do not proceedings where such assistance is action proposed to be taken, the specific apply to hearings conducted pursuant to due and payable pursuant to an provision under which the proposed this part, but rules or principles application approved prior to the action against it is to be taken, and the designed to assure production of the effective date of this part. matters of fact or law asserted as the most credible evidence available and to (c) Termination of or refusal to grant basis for this action, and either: subject testimony to test by cross- (1) Fix a date not less than 20 days or to continue Federal financial examination shall be applied where after the date of such notice within assistance. (1) No order suspending, reasonably necessary by the officer which the applicant or recipient may terminating, or refusing to grant or conducting the hearing. The hearing request of the Secretary that the matter continue Federal financial assistance officer may exclude irrelevant, be scheduled for hearing; or shall become effective until: immaterial, or unduly repetitious (2) Advise the applicant or recipient evidence. All documents and other (i) The Secretary has advised the that the matter in question has been set applicant or recipient of his failure to evidence offered or taken for the record down for hearing at a stated place and shall be open to examination by the comply and has determined that time. The time and place so fixed shall compliance cannot be secured by parties and opportunity shall be given to be reasonable and shall be subject to refute facts and arguments advanced on voluntary means; change for cause. The complainant, if (ii) There has been an express finding either side of the issues. A transcript any, shall be advised of the time and shall be made of the oral evidence on the record, after opportunity for place of the hearing. An applicant or hearing, of a failure by the applicant or except to the extent the substance recipient may waive a hearing and thereof is stipulated for the record. All recipient to comply with a requirement submit written information and imposed by or pursuant to this part; decisions shall be based upon the argument for the record. The failure of hearing record and written findings (iii) The action has been approved by an applicant or recipient to request a shall be made. the Secretary pursuant to § 21.17(e); and hearing under this paragraph or to (e) Consolidated or joint hearings. In (iv) The expiration of 30 days after the appear at a hearing for which a date has cases in which the same or related facts Secretary has filed with the committee been set shall be deemed to be a waiver are asserted to constitute of the House and the committee of the of the right to a hearing under section noncompliance with this part with Senate having legislative jurisdiction 602 of the Act and § 21.13(c) and respect to two or more Federal statutes, over the program involved, a full consent to the making of a decision on authorities, or other means by which written report of the circumstances and the basis of such information as is Federal financial assistance is extended the grounds for such action. available. and to which this part applies, or (2) Any action to suspend or (b) Time and place of hearing. noncompliance with this part and the terminate or to refuse to grant or to Hearings shall be held at the offices of regulations of one or more other Federal continue Federal financial assistance the Department in Washington, DC, at a departments or agencies issued under shall be limited to the particular time fixed by the Secretary unless he title VI of the Act, the Secretary may, by political entity, or part thereof, or other determines that the convenience of the agreement with such other departments applicant or recipient as to whom such applicant or recipient or of the or agencies, where applicable, provide a finding has been made and shall be Department requires that another place for the conduct of consolidated or joint limited in its effect to the particular be selected. Hearings shall be held hearings, and for the application to such program, or part thereof, in which such before the Secretary, or at his discretion, hearings of rules or procedures not noncompliance has been so found. before a hearing examiner appointed in inconsistent with this part. Final (d) Other means authorized by law. accordance with section 3105 of title 5, decisions in such cases, insofar as this No action to effect compliance with title United States Code, or detailed under regulation is concerned, shall be made VI of the Act by any other means section 3344 of title 5, United States in accordance with § 21.17. authorized by law shall be taken by this Code. Department until: (c) Right to counsel. In all proceedings § 21.17 Decisions and notices. (1) The Secretary has determined that under this section, the applicant or (a) Procedure on decisions by hearing compliance cannot be secured by recipient and the Department shall have examiner. If the hearing is held by a voluntary means; the right to be represented by counsel. hearing examiner, the hearing examiner (2) The recipient or other person has (d) Procedures, evidence, and record. shall either make an initial decision, if been notified of its failure to comply (1) The hearing, decision, and any so authorized, or certify the entire and of the action to be taken to effect administrative review thereof shall be record including his recommended compliance; and conducted in conformity with sections findings and proposed decision to the (3) The expiration of at least 10 days 554 through 557 of title 5, United States Secretary for a final decision, and a from the mailing of such notice to the Code, and in accordance with such rules copy of such initial decision or recipient or other person. During this of procedure as are proper (and not certification shall be mailed to the period of at least 10 days, additional inconsistent with this section) relating applicant or recipient. Where the initial efforts shall be made to persuade the to the conduct of the hearing, giving of decision is made by the hearing recipient or other person to comply with notices subsequent to those provided for examiner the applicant or recipient

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may, within 30 days after the mailing of provisions as are consistent with and prohibit any discrimination against such notice of initial decision, file with will effectuate the purposes of the Act individuals on the grounds of race, the Secretary his exceptions to the and this part, including provisions color, or national origin under any initial decision, with his reasons designed to assure that no Federal program to which this part applies, and therefor. In the absence of exceptions, financial assistance to which this which authorize the suspension or the Secretary may, on his own motion, regulation applies will thereafter be termination of or refusal to grant or to within 45 days after the initial decision, extended to the applicant or recipient continue Federal financial assistance to serve on the applicant or recipient a determined by such decision to be in any applicant for a recipient of such notice that he will review the decision. default in its performance of an assistance for failure to comply with Upon the filing of such exceptions or of assurance given by it pursuant to this such requirements, are hereby notice of review, the Secretary shall part, or to have otherwise failed to superseded to the extent that such review the initial decision and issue his comply with this part, unless and until discrimination is prohibited by this own decision thereon including the it corrects its noncompliance and part, except that nothing in this part reasons therefor. In the absence of either satisfies the Secretary that it will fully may be considered to relieve any person exceptions or a notice of review the comply with this part. of any obligation assumed or imposed initial decision shall, subject to (g) Post termination proceedings. (1) under any such superseded regulation, paragraph (e) of this section, constitute An applicant or recipient adversely order, instruction, or like direction the final decision of the Secretary. affected by an order issued under before the effective date of this part. (b) Decisions on record or review by paragraph (f) of this section shall be Nothing in this part, however, the Secretary. Whenever a record is restored to full eligibility to receive supersedes any of the following certified to the Secretary for decision or Federal financial assistance if it satisfies (including future amendments thereof): he reviews the decision of a hearing the terms and conditions of that order (1) Executive Order 11246 (3 CFR, examiner pursuant to paragraph (a) of for such eligibility or if it brings itself 1965 Supp., p. 167) and regulations this section, or whenever the Secretary into compliance with this part and issued thereunder; or conducts the hearing, the applicant or provides reasonable assurance that it (2) Any other orders, regulations, or recipient shall be given reasonable will fully comply with this part. instructions, insofar as such orders, opportunity to file with him briefs or (2) Any applicant or recipient regulations, or instructions prohibit other written statements of its adversely affected by an order entered discrimination on the ground of race, contentions, and a written copy of the pursuant to paragraph (f) of this section color, or national origin in any program final decision of the Secretary shall be may at any time request the Secretary to or situation to which this part is sent to the applicant or recipient and to restore fully its eligibility to receive inapplicable, or prohibit discrimination the complainant, if any. Federal financial assistance. Any such on any other ground. (c) Decisions on record where a request shall be supported by (b) Forms and instructions. The hearing is waived. Whenever a hearing information showing that the applicant Secretary shall issue and promptly make is waived pursuant to § 21.15, a decision or recipient has met the requirements of available to all interested persons forms shall be made by the Secretary on the paragraph (g)(1) of this section. If the and detailed instructions and record and a written copy of such Secretary determines that those procedures for effectuating this part as applied to programs to which this part decision shall be sent to the applicant requirements have been satisfied, he applies and for which he is responsible. or recipient, and to the complainant, if shall restore such eligibility. (c) Supervision and coordination. The any. (3) If the Secretary denies any such Secretary may from time to time assign (d) Rulings required. Each decision of request, the applicant or recipient may to officials of the Department, or to a hearing examiner or the Secretary submit a request for a hearing in officials of other departments or shall set forth his ruling on each writing, specifying why it believes such finding, conclusion, or exception agencies of the Government with the official to have been in error. It shall presented, and shall identify the consent of such departments or thereupon be given an expeditious requirement or requirements imposed agencies, responsibilities in connection hearing, with a decision on the record by or pursuant to this part with which with the effectuation of the purposes of in accordance with rules or procedures it is found that the applicant or title VI of the Act and this part (other issued by the Secretary. The applicant recipient has failed to comply. than responsibility for final decision as or recipient will be restored to such (e) Approval by Secretary. Any final provided in § 21.17), including the eligibility if it proves at such a hearing decision by an official of the achievement of effective coordination that it satisfied the requirements of Department, other than the Secretary and maximum uniformity within the paragraph (g)(1) of this section. While personally, which provides for the Department and within the Executive proceedings under this paragraph are suspension or termination of, or the Branch of the Government in the pending, the sanctions imposed by the refusal to grant or continue Federal application of title VI and this part to order issued under paragraph (f) of this financial assistance, or the imposition of similar programs and in similar section shall remain in effect. any other sanction available under this situations. Any action taken, part or the Act, shall promptly be § 21.19 Judicial review. determination made or requirement transmitted to the Secretary personally, Action taken pursuant to section 602 imposed by an official of another who may approve such decision, may of the Act is subject to judicial review department or agency acting pursuant to vacate it, or remit or mitigate any as provided in section 603 of the Act. an assignment of responsibility under sanction imposed. this paragraph shall have the same effect (f) Content of orders. The final § 21.21 Effect on other regulations, forms, as though such action had been taken by decision may provide for suspension or and instructions. the Secretary of this Department. termination of, or refusal to grant or (a) Effect on other regulations. All Appendix A to Part 21—Activities to continue Federal financial assistance, in regulations, orders, or like directions Which This Part Applies whole or in part, to which this issued before the effective date of this regulation applies, and may contain part by any officer of the Department Note: Failure to list a type of Federal such terms, conditions, and other which impose requirements designed to assistance in appendix A shall not mean, if

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title VI is otherwise applicable, that a body or private organization not organized Appendix B to Part 21—Activities to program is not covered. for profit (14 U.S.C. 641(a)). Which This Part Applies When a 1. Lease of real property and the grant of 5. U.S. Coast Guard Auxiliary Program (14 Primary Objective of the Federal U.S.C. 821–832). permits, licenses, easements and rights-of- Financial Assistance is To Provide way covering real property under control of 6. U.S. Coast Guard Boating Safety the U.S. Coast Guard (14 U.S.C. 93 (n) and Financial Assistance program. Employment (o)). 7. U.S. Coast Guard State Access to Oil Note: Failure to list a type of Federal 2. Utilization of U.S. Coast Guard Spill Liability Trust Fund. personnel and facilities by any State, 8. U.S. Coast Guard Bridge Alteration. assistance in appendix B shall not mean, if territory, possession, or political subdivision 9. Use of Customs personnel and facilities title VI is otherwise applicable, that a thereof (14 U.S.C. 141(a)). by any State, territory, possession, or program is not covered. 3. Use of U.S. Coast Guard personnel for political subdivision thereof. [Reserved] duty in connection with maritime instruction 10. Use of Customs personnel for duty in and training by the States, territories, and the connection with instruction and training by Dated: February 28, 2003. Commonwealth of Puerto Rico (14 U.S.C. the States, territories and the Commonwealth Tom Ridge, of Puerto Rico. 148). Secretary of Homeland Security. 4. Use of obsolete and other U.S. Coast 11. Grants to educational institutions, Guard material by sea scout service of Boy associations, States, or other entities for [FR Doc. 03–5144 Filed 3–5–03; 8:45 am] Scouts of America, any incorporated unit of research, analysis, or programs or strategies BILLING CODE 4410–10–P the U.S. Coast Guard auxiliary, and public relating to trade issues.

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Part VI

Department of Homeland Security Office of the Secretary

6 CFR Part 9 Restrictions Upon Lobbying; Interim Final Rule

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DEPARTMENT OF HOMELAND procedures is to ensure that neither the Subpart C—Activities by Other than Own SECURITY recipients of appropriated funds nor the Employees employees of the Department of 9.23 Professional and technical services. Office of the Secretary Homeland Security inappropriately Subpart D—Penalties and Enforcement solicit for action by Congress. 6 CFR Part 9 9.31 Penalties. III. Procedural Requirements 9.32 Penalty procedures. RIN Number 1601–AA12 9.33 Enforcement. Because the DHS came into existence Restrictions Upon Lobbying on January 24, 2003, it is necessary to Subpart E—Exemptions promptly establish procedures to 9.41 Secretary of Defense. AGENCY: Office of the Secretary, facilitate the operations of the new Subpart F—Agency Reports Homeland Security. Department. Furthermore, this interim ACTION: Interim final rule. final rule parallels the existing 9.51 Semi-annual compilation. operational regulations of other cabinet- 9.52 Inspector General report. SUMMARY: The interim final rule level agencies to impose restrictions Appendix A to Part 9—Certification prohibits use of appropriated funds by upon lobbying, similar regulations were Regarding Lobbying recipients of a federal contract, grant, applicable to components being Appendix B to Part 9—Disclosure Form loan, or cooperative agreement to transferred to DHS from other agencies, to Report Lobbying influence any federal agency or and the regulations are only being Authority: Sec. 319, Pub. L. 101–121, 103 Congress in connection with federal technically adapted for DHS, imposing Stat. 750 (31 U.S.C. 1352); Pub. L. 107–296, awards and establishes the Department no substantive requirement that is 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5 U.S.C. of Homeland Security procedures for different from the existing regulations of 301. enforcement of this prohibition. other agencies. Accordingly, the Subpart A—General DATES: This interim final rule is Department has determined that notice effective March 6, 2003. Written and public procedure are impracticable § 9.1 Conditions on use of funds. comments may be submitted by April 7, and contrary to the public interest (a) No appropriated funds may be 2003. pursuant to 5 U.S.C. 553(b)(B). For the expended by the recipient of a Federal ADDRESSES: Submit written comments same reasons, the Department has contract, grant, loan, or cooperative (preferably an original and three copies) determined that this interim rule should agreement to pay any person for to the Associate General Counsel be issued without a delayed effective influencing or attempting to influence (General Law), Department of Homeland date pursuant to 5 U.S.C. 553(d)(3). an officer or employee of any agency, a Security, Washington, DC 20528. It has been determined that this Member of Congress, an officer or FOR FURTHER INFORMATION CONTACT: rulemaking is not a significant employee of Congress, or an employee Robert Coyle, (202) 282–8410 ( not a toll regulatory action for the purposes of of a Member of Congress in connection free call). Executive Order 12866. Accordingly, a with any of the following covered SUPPLEMENTARY INFORMATION: regulatory impact analysis is not Federal actions: the awarding of any required. Federal contract, the making of any I. Background Because no notice of proposed Federal grant, the making of any Federal On November 25, 2002, the President rulemaking is required, the provisions loan, the entering into of any signed into law the Homeland Security of the Regulatory Flexibility Act (5 cooperative agreement, and the Act (Pub. L. 107–296) (‘‘Act’’), which U.S.C. chapter 6) do not apply. extension, continuation, renewal, created the new Department of List of Subjects in 6 CFR Part 9 amendment, or modification of any Homeland Security (DHS). Pursuant to Federal contract, grant, loan, or the provisions of the Act, the new Government contracts, Grant cooperative agreement. Department came into existence on programs, Loan programs, Lobbying, (b) Each person who requests or January 24, 2003. Penalties, Reporting and recordkeeping receives from an agency a Federal In order to establish procedures to requirements. contract, grant, loan, or cooperative facilitate the operations of the new Dated: February 28, 2003. agreement shall file with that agency a Department, DHS is issuing an initial Tom Ridge, certification, set forth in Appendix A to series of proposed and interim final Secretary of Homeland Security. this part, that the person has not made, regulations. and will not make, any payment Authority and Issuance prohibited by paragraph (a) of this II. The Interim Final Rule For the reasons set forth above, 6 CFR section. This interim final rule establishes chapter I is amended by adding part 9 (c) Each person who requests or those procedures necessary to fulfill to read as follows: receives from an agency a Federal departmental obligations to impose contract, grant, loan, or a cooperative restrictions upon lobbying. Except to the PART 9—RESTRICTIONS UPON agreement shall file with that agency a extent a Department component has LOBBYING disclosure form, set forth in Appendix adopted separate guidance under 31 B to this part, if such person has made U.S.C. 1352, the provisions of this Subpart A—General or has agreed to make any payment subpart shall apply to each component Sec. using non appropriated funds (to of the Department. 9.1 Conditions on use of funds. include profits from any covered This regulation establishes procedures 9.2 Definitions. Federal action), which would be concerning general prohibitions on 9.3 Certification and disclosure. prohibited under paragraph (a) of this lobbying and the use of certain Subpart B—Activities by Own Employees section if paid for with appropriated appropriated funds and the appropriate 9.11 Agency and legislative liaison. funds. penalties for violations of those 9.15 Professional and technical services. (d) Each person who requests or prohibitions. The purpose of the 9.20 Reporting. receives from an agency a commitment

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providing for the United States to insure the Federal Government or a direct organization with respect to or guarantee a loan shall file with that appropriation made by law to any expenditures specifically permitted by agency a statement, set forth in person. The term does not include other Federal law. Appendix A to this part, whether that technical assistance that provides (m) Reasonable compensation means, person has made or has agreed to make services instead of money, or other with respect to a regularly employed any payment to influence or attempt to assistance in the form of revenue officer or employee of any person, influence an officer or employee of any sharing, loans, loan guarantees, loan compensation that is consistent with the agency, a Member of Congress, an insurance, interest subsidies, insurance, normal compensation for such officer or officer or employee of Congress, or an or direct United States cash assistance employee for work that is not furnished employee of a Member of Congress in to an individual. to, not funded by, or not furnished in connection with that loan insurance or (f) Federal loan means a loan made by cooperation with the Federal guarantee. an agency. The term does not include Government. (e) Each person who requests or loan guarantee or loan insurance. (n) Reasonable payment means, with receives from an agency a commitment (g) Indian tribe and tribal organization respect to professional and other providing for the United States to insure have the meaning provided in section 4 technical services, a payment in an or guarantee a loan shall file with that of the Indian Self-Determination and amount that is consistent with the agency a disclosure form, set forth in Education Assistance Act (25 U.S.C. amount normally paid for such services Appendix B to this part, if that person 450B). Alaskan Natives are included in the private sector. has made or has agreed to make any under the definition of Indian tribe in (o) Recipient includes all contractors, payment to influence or attempt to that Act. subcontractors at any tier, and sub influence an officer or employee of any (h) Influencing or attempting to grantees at any tier of the recipient of agency, a Member of Congress, an influence means making, with the intent funds received in connection with a officer or employee of Congress, or an to influence, any communication to or Federal contract, grant, loan, or employee of a Member of Congress in appearance before an officer or cooperative agreement. The term connection with that loan insurance or employee or any agency, a Member of excludes an Indian tribe, tribal guarantee. Congress, an officer or employee of organization, or any other Indian Congress, or an employee of a Member § 9.2 Definitions. organization with respect to of Congress in connection with any expenditures specifically permitted by For purposes of this part: covered Federal action. other Federal law. (a) Agency has the same meaning as (i) Loan guarantee or loan insurance provided in 5 U.S.C. 552(f), and means an agency’s guarantee or (p) Regularly employed means, with includes Federal executive departments insurance of a loan made by a person. respect to an officer or employee of a and agencies as well as independent (j) Local government means a unit of person requesting or receiving a Federal regulatory commissions and government in a State and, if chartered, contract, grant, loan, or cooperative Government corporations, as defined in established, or otherwise recognized by agreement or a commitment providing 31 U.S.C. 9101(1). a State for the performance of a for the United States to insure or (b) The term covered Federal action: governmental duty, including a local guarantee a loan, an officer or employee (1) Means any of the following public authority, a special district, an who is employed by such person for at Federal actions: intrastate district, a council of least 130 working days within one year (i) The awarding of any Federal governments, a sponsor group immediately preceding the date of the contract; representative organization, and any submission that initiates agency (ii) The making of any Federal grant; other instrumentality of a local consideration of such person for receipt (iii) The making of any Federal loan; government. of such contract, grant, loan, cooperative (iv) The entering into of any (k) Officer or employee of an agency agreement, loan insurance commitment, cooperative agreement; and includes the following individuals who or loan guarantee commitment. An (v) The extension, continuation, are employed by an agency: officer or employee who is employed by renewal, amendment, or modification of (1) An individual appointed to a such person for less than 130 working any Federal contract, grant, loan, or position in the Government pursuant to days within one year immediately cooperative agreement. title 5 of the United States Code, preceding the date of the submission (2) Does not include receiving from an including any position by temporary that initiates agency consideration of agency a commitment providing for the appointment or any appointment as an such person shall be considered to be United States to insure or guarantee a acting official as outlined in section regularly employed as soon as he or she loan. Loan guarantees and loan 1511(c) of the Homeland Security Act; is employed by such person for 130 insurance are addressed independently (2) A member of the uniformed working days. within this part. services as defined in 37 U.S.C. 101(3); (q) State means a State of the United (c) Federal contract means an (3) A special Government employee as States, the District of Columbia, the acquisition contract awarded by an defined in section 18 U.S.C. 202; and Commonwealth of Puerto Rico, a agency, including those subject to the (4) An individual who is a member of territory or possession of the United Federal Acquisition Regulation (FAR) a Federal advisory committee, as States, an agency or instrumentality of (48 CFR Chapter 1) and any other defined by the Federal Advisory a State, and a multi-State, regional, or acquisition contract for real or personal Committee Act at 5 U.S.C. App. 2. interstate entity having governmental property or services not subject to the (l) Person means an individual, duties and powers. FAR. corporation, company, association, (d) Federal cooperative agreement authority, firm, partnership, society, § 9.3 Certification and disclosure. means a cooperative agreement entered State, and local government, regardless (a) Each person shall file a into by an agency. of whether such entity is operated for certification, and a disclosure form, if (e) Federal grant means an award of profit or not for profit. This term required, with each submission that financial assistance in the form of excludes an Indian tribe, tribal initiates agency consideration of such money, or property in lieu of money, by organization, or any other Indian person for:

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(1) Award of a Federal contract, grant, section. That person shall forward all about initiation of a covered Federal or cooperative agreement exceeding disclosure forms to the agency. action; $100,000; or (f) Any certification or disclosure (2) Technical discussions regarding (2) An award of a Federal loan or a form filed under paragraph (e) of this the preparation of an unsolicited commitment providing for the United section shall be treated as a material proposal prior to its official submission; States to insure or guarantee a loan representation of fact upon which all and exceeding $150,000. receiving tiers shall rely. All liability (3) Capability presentations by (b)(1) Each person shall file a arising from an erroneous representation persons seeking awards from an agency certification, and a disclosure form, if shall be borne solely by the tier filing pursuant to the provisions of the Small required, upon receipt by such person that representation and shall not be Business Act, as amended. of: shared by any tier to which the (e) Only those activities expressly (i) A Federal contract, grant, or erroneous representation is forwarded. authorized by this section are allowable cooperative agreement exceeding Submitting an erroneous certification or under this section. $100,000; or disclosure constitutes a failure to file § 9.15 Professional and technical services. (ii) A Federal loan or a commitment the required certification or disclosure, (a) The prohibition on the use of providing for the United States to insure respectively. If a person fails to file a or guarantee a loan exceeding $150,000. appropriated funds, in § 9.1(a), does not required certification or disclosure, the apply in the case of a payment of (2) A filing described in paragraph United States may pursue all available (b)(1) of this section shall not be reasonable compensation made to an remedies, including those authorized by officer or employee of a person required if such person previously filed section 31 U.S.C. 1352. a certification, and a disclosure form requesting or receiving a Federal (g) No reporting is required for an contract, grant, loan, or cooperative required under paragraph (a) of this activity paid for with appropriated section. agreement or an extension, funds if that activity is allowable under continuation, renewal, amendment, or (c) Each person shall file a disclosure either subpart B or C of this part. form at the end of each calendar quarter modification of a Federal contract, in which there occurs any event that Subpart B—Activities by Own grant, loan, or cooperative agreement if requires disclosure or that materially Employees payment is for professional or technical affects the accuracy of the information services rendered directly in the contained in any disclosure form § 9.11 Agency and legislative liaison. preparation, submission, or negotiation previously filed by such person under (a) The prohibition on the use of of any bid, proposal, or application for paragraph (a) or (b) of this section. An appropriated funds, in § 9.1(a), does not that Federal contract, grant, loan, or event that materially affects the apply in the case of a payment of cooperative agreement or for meeting accuracy of the information reported reasonable compensation made to an requirements imposed by or pursuant to includes: officer or employee of a person law as a condition for receiving that (1) A cumulative increase of $25,000 requesting or receiving a Federal Federal contract, grant, loan, or or more in the amount paid or expected contract, grant, loan, or cooperative cooperative agreement. (b) For purposes of paragraph (a) of to be paid for influencing or attempting agreement if the payment is for agency this section, professional and technical to influence a covered Federal action; and legislative liaison activities not (2) A change in the person(s) or directly related to a covered Federal services shall be limited to advice and individual(s) influencing or attempting action. analysis directly applying any to influence a covered Federal action; or (b) For purposes of paragraph (a) of professional or technical discipline. For (3) A change in the officer(s), this section, providing any information example, drafting of a legal document employee(s), or Member(s) contacted to specifically requested by an agency or accompanying a bid or proposal by a influence or attempt to influence a Congress is allowable at any time. lawyer is allowable. Similarly, technical covered Federal action. (c) For purposes of paragraph (a) of advice provided by an engineer on the (d)(1) The requirements of paragraph this section, the following agency and performance or operational capability of (d)(2) of this section apply to any person legislative liaison activities are a piece of equipment rendered directly who requests or receives from a person allowable at any time only where they in the negotiation of a contract is referred to in paragraph (a) or (b) of this are not related to a specific solicitation allowable. However, communications section: for any covered Federal action: with the intent to influence made by a (i) A subcontract exceeding $100,000 (1) Discussing with an agency professional (such as a licensed lawyer) at any tier under a Federal contract; (including individual demonstrations) or a technical person (such as a licensed (ii) A subgrant, contract, or the qualities and characteristics of the accountant) are not allowable under this subcontract exceeding $100,000 at any person’s products or services, section unless they provide advice and tier under a Federal grant; conditions or terms of sale, and service analysis directly applying their (iii) A contract or subcontract capabilities; and professional or technical expertise and exceeding $100,000 at any tier under a (2) Technical discussions and other unless the advice or analysis is rendered Federal loan exceeding $150,000; or activities regarding the application or directly and solely in the preparation, (iv) A contract or subcontract adaptation of the person’s products or submission or negotiation of a covered exceeding $100,000 at any tier under a services for an agency’s use. Federal action. Thus, for example, Federal cooperative agreement. (d) For purposes of paragraph (a) of communications with the intent to (2) A person described in paragraph this section, the following agencies and influence made by a lawyer that do not (d)(1) of this section shall file a legislative liaison activities are provide legal advice or analysis directly certification, and a disclosure form, if allowable only where they are prior to and solely related to the legal aspects of required, to the next tier. formal solicitation of any covered his or her client’s proposal, but (e) All disclosure forms, but not Federal action: generally advocate one proposal over certifications, shall be forwarded from (1) Providing any information not another are not allowable under this tier to tier until received by the person specifically requested but necessary for section because the lawyer is not referred to in paragraph (a) or (b) of this an agency to make an informed decision providing professional legal services.

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Similarly, communications with the allowable. However, communications commenced with respect to a failure intent to influence made by an engineer with the intent to influence made by a when an investigating official providing an engineering analysis prior professional (such as a licensed lawyer) determines in writing to commence an to the preparation or submission of a bid or a technical person (such as a licensed investigation of an allegation of such or proposal are not allowable under this accountant) are not allowable under this failure. section since the engineer is providing section unless they provide advice and (d) In determining whether to impose technical services but not directly in the analysis directly applying their a civil penalty, and the amount of any preparation, submission or negotiation professional or technical expertise and such penalty, by reason of a violation by of a covered Federal action. unless the advice or analysis is rendered any person, the agency shall consider (c) Requirements imposed by or directly and solely in the preparation, the nature, circumstances, extent, and pursuant to law as a condition for submission or negotiation of a covered gravity of the violation, the effect on the receiving a covered Federal award Federal action. Thus, for example, ability of such person to continue in include those required by law or communications with the intent to business, any prior violations by such regulation, or reasonably expected to be influence made by a lawyer that do not person, the degree of culpability of such required by law or regulation, and any provide legal advice or analysis directly person, the ability of the person to pay other requirements in the actual award and solely related to the legal aspects of the penalty, and such other matters as documents. his or her client’s proposal, but may be appropriate. (d) Only those services expressly generally advocate one proposal over authorized by this section are allowable another are not allowable under this (e) First offenders under paragraphs under this section. section because the lawyer is not (a) or (b) of this section shall be subject providing professional legal services. to a civil penalty of $10,000, absent § 9.20 Reporting. Similarly, communications with the aggravating circumstances. Second and No reporting is required with respect intent to influence made by an engineer subsequent offenses by persons shall be to payments of reasonable compensation providing an engineering analysis prior subject to an appropriate civil penalty made to regularly employed officers or to the preparation or submission of a bid between $10,000 and $100,000, as employees of a person. or proposal are not allowable under this determined by the agency head or his or her designee. Subpart C—Activities by Other than section since the engineer is providing Own Employees technical services but not directly in the (f) An imposition of a civil penalty preparation, submission or negotiation under this section does not prevent the § 9.23 Professional and technical services. of a covered Federal action. United States from seeking any other (a) The prohibition on the use of (d) Requirements imposed by or remedy that may apply to the same appropriated funds, in § 9.1(a), does not pursuant to law as a condition for conduct that is the basis for the apply in the case of any reasonable receiving a covered Federal action imposition of such civil penalty. payment to a person, other than an include those required by law or officer or employee of a person regulation, or reasonably expected to be § 9.32 Penalty procedures. required by law or regulation, and any requesting or receiving a covered Agencies shall impose and collect other requirements in the actual award Federal action, if the payment is for civil penalties pursuant to the documents. professional or technical services provisions of the Program Fraud and rendered directly in the preparation, (e) Persons other than officers or employees of a person requesting or Civil Remedies Act, 31 U.S.C. 3803 submission, or negotiation of any bid, (except subsection (c)), 3804, 3805, proposal, or application for that Federal receiving a covered Federal action include consultants and trade 3806, 3807, 3808, and 3812, insofar as contract, grant, loan, or cooperative these provisions are not inconsistent agreement or for meeting requirements associations. (f) Only those services expressly with the requirements in this part. imposed by or pursuant to law as a authorized by this section are allowable condition for receiving that Federal § 9.33 Enforcement. under this section. contract, grant, loan, or cooperative The head of each agency shall take agreement. Subpart D—Penalties and Enforcement such actions as are necessary to ensure (b) The reporting requirements in that the provisions herein are vigorously § 9.3(a) and (b) regarding filing a § 9.31 Penalties. implemented and enforced in that disclosure form by each person, if (a) Any person who makes an agency. required, shall not apply with respect to expenditure prohibited herein shall be professional or technical services subject to a civil penalty of not less than Subpart E—Exemptions rendered directly in the preparation, $10,000 and not more than $100,000 for submission, or negotiation of any each such expenditure. § 9.41 Secretary of Defense. commitment providing for the United (b) Any person who fails to file or States to insure or guarantee a loan. amend the disclosure form (see (a) The Secretary of Defense may (c) For purposes of paragraph (a) of Appendix B to this part) to be filed or exempt, on a case-by-case basis, a this section, professional and technical amended if required herein, shall be covered Federal action from the services shall be limited to advice and subject to a civil penalty of not less than prohibition whenever the Secretary analysis directly applying any $10,000 and not more than $100,000 for determines, in writing, that such an professional or technical discipline. For each such failure. exemption is in the national interest. example, drafting of a legal document (c) A filing or amended filing on or The Secretary shall transmit a copy of accompanying a bid or proposal by a after the date on which an each such written exemption to lawyer is allowable. Similarly, technical administrative action for the imposition Congress immediately after making such advice provided by an engineer on the of a civil penalty is commenced does a determination. performance or operational capability of not prevent the imposition of such civil (b) The Department of Defense may a piece of equipment rendered directly penalty for a failure occurring before issue supplemental regulations to in the negotiation of a contract is that date. An administrative action is implement paragraph (a) of this section.

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Subpart F—Agency Reports this section, of each agency shall attempting to influence an officer or prepare and submit to Congress each employee of any agency, a Member of § 9.51 Semi-annual compilation. year an evaluation of the compliance of Congress, an officer or employee of Congress, (a) The head of each agency shall that agency with, and the effectiveness or an employee of a Member of Congress in collect and compile the disclosure of, the requirements in this part. The connection with this Federal contract, grant, reports (see Appendix B to this part) evaluation may include any loan, or cooperative agreement, the and, on May 31 and November 30 of recommended changes that may be undersigned shall complete and submit each year, submit to the Secretary of the necessary to strengthen or improve the Standard Form—LLL, ‘‘Disclosure Form to Senate and the Clerk of the House of requirements. Report Lobbying,’’ in accordance with its Representatives a report containing a (b) In the case of an agency that does instructions. compilation of the information not have an Inspector General, the (3) The undersigned shall require that the contained in the disclosure reports agency official comparable to an language of this certification be included in received during the six-month period Inspector General shall prepare and the award documents for all sub awards at all ending on March 31 or September 30, submit the annual report, or, if there is tiers (including subcontracts, subgrants, and respectively, of that year. no such comparable official, the head of contracts under grants, loans, and (b) The report, including the the agency shall prepare and submit the cooperative agreements) and that all subrecipients shall certify and disclose compilation, shall be available for annual report. public inspection 30 days after receipt (c) The annual report shall be accordingly. This certification is a material representation of the report by the Secretary and the submitted at the same time the agency of fact upon which reliance was placed when Clerk. submits its annual budget justifications this transaction was made or entered into. (c) Information that involves to Congress. Submission of this certification is a intelligence matters shall be reported (d) The annual report shall include prerequisite for making or entering into this only to the Select Committee on the following: All alleged violations transaction imposed by section 31 U.S.C. Intelligence of the Senate, the relating to the agency’s covered Federal Permanent Select Committee on 1352. Any person who fails to file the actions during the year covered by the required certification shall be subject to a Intelligence of the House of report, the actions taken by the head of Representatives, and the Committees on civil penalty of not less than $10,000 and not the agency in the year covered by the more than $100,000 for each such failure. Appropriations of the Senate and the report with respect to those alleged House of Representatives in accordance II. Statement for Loan Guarantees and Loan violations and alleged violations in Insurance: with procedures agreed to by such previous years, and the amounts of civil committees. Such information shall not The undersigned states, to the best of his or penalties imposed by the agency in the her knowledge and belief, that: be available for public inspection. year covered by the report. (d) Information that is classified If any funds have been paid or will be paid under Executive Order 12356 or any Appendix A to Part 9—Certification to any person for influencing or attempting successor order shall be reported only to Regarding Lobbying to influence an officer or employee of any agency, a Member of Congress, an officer or the Committee on Foreign Relations of Certification for Contracts, Grants, Loans, employee of Congress, or an employee of a the Senate and the Committee on and Cooperative Agreements Foreign Affairs of the House of Member of Congress in connection with this I. The undersigned certifies, to the best of his commitment providing for the United States Representatives or the Committees on or her knowledge and belief, that: Armed Services of the Senate and the to insure or guarantee a loan, the (1) No Federal appropriated funds have undersigned shall complete and submit House of Representatives (whichever been paid or will be paid, by or on behalf of such committees have jurisdiction of Standard Form-LLL, ‘‘Disclosure Form to the undersigned, to any person for Report Lobbying,’’ in accordance with its matters involving such information) and influencing or attempting to influence an instructions. to the Committees on Appropriations of officer or employee of an agency, a Member the Senate and the House of of Congress, an officer or employee of Submission of this statement is a prerequisite Representatives in accordance with Congress, or an employee of a Member of for making or entering into this transaction procedures agreed to by such Congress in connection with the awarding of imposed by 31 U.S.C. 1352. Any person who committees. Such information shall not any Federal contract, the making of any fails to file the required statement shall be Federal grant, the making of any Federal subject to a civil penalty of not less than be available for public inspection. loan, the entering into of any cooperative (e) Agencies shall keep the originals $10,000 and not more than $100,000 for each agreement, and the extension, continuation, such failure. of all disclosure reports in the official renewal, amendment, or modification of any files of the agency. Federal contract, grant, loan, or cooperative Appendix B to Part 9—Disclosure Form agreement. to Report Lobbying § 9.52 Inspector General report. (2) If any funds other than Federal (a) The Inspector General, or other appropriated funds have been paid or will be [Approved by OMB 0348–0046] official as specified in paragraph (b) of paid to any person for influencing or BILLING CODE 4410–10–P

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[FR Doc. 03–5145 Filed 3–5–03; 8:45 am] BILLING CODE 4410–10–C

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Part VII

Department of Homeland Security Immigration and Naturalization Service

8 CFR Parts 1, 2, 103, and 239 Authority of the Secretary of Homeland Security; Delegations of Authority; Immigration Laws; Final Rule

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DEPARTMENT OF HOMELAND Regulations with respect to DHS, and its regulations. These delegations are SECURITY application as a matter of law in full to replaced with a cross-reference to the DHS as the successor to the INS unless Secretary of Homeland Security’s Immigration and Naturalization Service and until specifically modified, it is delegation authority under 8 CFR 2.1. appropriate at this time to begin the Delegations to replace the former § 103.1 8 CFR Parts 1, 2, 103, 239 process of conforming the text of Title will be in place on March 1, 2003, but RIN 1601–AA06 8 to the new governmental structures are not required to be, and will not be provided by the Act and the promulgated as rules or codified in the Authority of the Secretary of Homeland Reorganization Plan. Code of Federal Regulations. The final Security; Delegations of Authority; This rule is also a step in the process rule retains the designations of Immigration Laws of separating DHS enforcement and ‘‘immigration officer’’ in former 8 CFR services functions from Department of 103.1(j) (new § 103.1(b)), and amends it AGENCY: INS, Homeland Security. Justice adjudication functions as to include additional officers in DHS as ACTION: Final rule. envisioned by the Act. DHS and the the Secretary may designate as provided Department of Justice are working by § 2.1. SUMMARY: This final rule amends certain together to ensure that this complex task Third, the final rule revises the regulations relating to the proceeds as smoothly as possible regulation at 8 CFR 239.1 that delegates administration and enforcement of the without unnecessary disruption to authority to issue notices to appear. The immigration laws to reflect the authority enforcement, adjudication, and other Secretary of Homeland Security has of the Secretary of Homeland Security immigration functions. determined in his discretion that he will and to address delegation of that II. The Final Rule continue publication of this delegation authority, as a result of the March 1, to certain officers in the Code of Federal 2003, transfer of the Immigration and First, this final rule replaces 8 CFR Regulations, but has added a cross- Naturalization Service of the 2.1—stating the authority of the reference to his delegation authority Department of Justice to the Department Commissioner of the INS and providing under 8 CFR 2.1 to clarify that he may of Homeland Security. for his redelegation of authority—with in his discretion supplement or revise DATES: This final rule is effective March an equivalent provision that vests all the list by memorandum or other 6, 2003. Written comments may be authorities and functions of DHS to method other than rulemaking or submitted to the Department of administer and enforce the immigration publication in the Federal Register. The laws in the Secretary of Homeland Homeland Security on or before April 7, list has also been revised to reflect new Security. The immigration laws are 2003. titles. This rule omits the former first defined in section 101(a)(17) of the ADDRESSES: Submit written comments sentence of § 239.1 as superfluous Immigration and Nationality Act (INA), (preferably an original and three copies) explanatory material that is unnecessary 8 U.S.C. 1101(a)(17), as the INA and all to the Associate General Counsel in light of the jurisdictional regulations laws, conventions, and treaties of the of the Executive Office for Immigration (General Law), Department of Homeland United States relating to the Review of the Department of Justice at Security, Washington, DC 20528. immigration, deportation, expulsion, or 8 CFR 3.14. FOR FURTHER INFORMATION CONTACT: removal of aliens (this INA definition is Fourth, the final rule supplements the Philip B. Busch, (202) 514–2895, not a incorporated in Title 8 of the Code of regulatory definition of ‘‘director’’ at 8 toll free call. Federal Regulations by 8 CFR 1.1(a)). CFR 1.1(o) to clarify that on or after SUPPLEMENTARY INFORMATION: The Secretary may redelegate any of his March 1, 2003, any reference to a functions and authorities with respect to I. Background district director or other director in Title the immigration laws in his discretion 8 of the Code of Federal Regulations On November 25, 2002, the President to any official, officer or employee of with respect to any function or authority signed into law the Homeland Security DHS (including by means of successive will be a reference to that official within Act of 2002 (Pub. L. 107–296) (the Act), redelegations), or to other employees of which created the new Department of the United States to the extent the Bureau of Immigration and Customs Homeland Security (DHS). Pursuant to authorized by law. He may delegate his Enforcement, the Bureau of Customs the provisions of the Act, DHS came authority in any manner he chooses, and Border Protection, the Bureau of into existence on January 24, 2003. As including by regulation or by Citizenship and Immigration Services, provided by the Act and by the memorandum, directive, or other or other component of DHS who has Department of Homeland Security method. The Secretary’s delegations of been delegated that function or Reorganization Plan of November 25, authority may in his discretion be authority for a district or other 2002, as modified (Reorganization Plan), published as rules or notices in the geographic area. the functions of the Immigration and Federal Register, but the Secretary is III. Procedural Requirements Naturalization Service (INS) of the not required to publish his delegations Department of Justice, and all of authority in the Federal Register. The Administrative Procedure Act authorities with respect to those new section 2.1 reflects the statutory Compliance with 5 U.S.C. 553 as to functions, transfer to DHS on March 1, authority that the Secretary of notice of proposed rulemaking or 2003, and the INS is abolished on that Homeland Security possesses under delayed effective date is unnecessary as date. The transition and savings section 102 and other provisions of the this rule relates to agency organization provisions of the Act, including sections Act and other applicable law, and does and management. Accordingly, it is not 1512(d) and 1517, provide that not limit or constrain that authority in a ‘‘rule’’ as that term is used by the references relating to the INS in statutes, any way. Congressional Review Act (Subtitle E of regulations, directives or delegations of Second, the final rule deletes the Small Business Regulatory authority shall be deemed to refer to the delegations of authority at 8 CFR 103.1 Enforcement Fairness Act of 1996 appropriate official or component of that reflect the structure of the former (SBREFA)), and the reporting DHS. Despite this continued validity of INS and therefore no longer provide requirement of 5 U.S.C. 801 does not Title 8 of the Code of Federal accurate information from the apply.

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Executive Order 12866 List of Subjects PART 2—AUTHORITY OF THE SECRETARY OF HOMELAND 8 CFR Part 1 This rule making is limited to agency SECURITY organization, management or personnel Administrative practice and matters, and therefore is not a regulation 3. The heading for Part 2 is revised to procedure, Immigration. or rule as defined by Executive Order read as set forth above.: 12866. It has also been determined that 8 CFR Part 2 this rulemaking is not a significant 4. The authority citation for Part 2 is regulatory action for the purposes of Administrative practice and revised to read as follows: Executive Order 12866. Accordingly, a procedure, Authority delegation Authority: 8 U.S.C. 1103; 5 U.S.C. 301; regulatory impact analysis is not (Government agencies), Immigration. Public Law 107–296, 116 Stat. 2135 (6 U.S.C. required. 1 et seq.). 8 CFR Part 103 Regulatory Flexibility Act 5. Section 2.1 is revised to read as Administrative practice and follows: Because no notice of proposed procedure, Authority delegations rulemaking is required, the provisions (Government agencies), Freedom of § 2.1 Authority of the Secretary of Homeland Security. of the Regulatory Flexibility Act (5 information, Immigration, Privacy, U.S.C. chapter 6) do not apply. Reporting and recordkeeping All authorities and functions of the Small Business Regulatory Enforcement requirements, Surety bonds. Department of Homeland Security to Fairness Act of 1996 administer and enforce the immigration 8 CFR Part 239 laws are vested in the Secretary of This rule is not a major rule as Homeland Security. The Secretary of defined by section 804 of the Small Administrative practice and Homeland Security may, in the Business Regulatory Enforcement Act of procedure, Aliens, Immigration, Secretary’s discretion, delegate any such 1996. This rule will not result in an Reporting and recordkeeping authority or function to any official, annual effect on the economy of $100 requirements. officer, or employee of the Department million or more; a major increase in Authority and Issuance of Homeland Security, including costs or prices; or significant adverse delegation through successive effects on competition, employment, Accordingly, chapter I of Title 8 of the redelegation, or to any employee of the investment, productivity, innovation, or Code of Federal Regulations is amended United States to the extent authorized on the ability of United States-based as follows: by law. Such delegation may be made companies to compete with foreign- by regulation, directive, memorandum, based companies in domestic and Chapter I—Immigration and Naturalization or other means as deemed appropriate export markets. Service, Department of Homeland Security by the Secretary in the exercise of the Secretary’s discretion. A delegation of Executive Order 12988: Civil Justice 1. The chapter heading is revised to authority or function may in the Reform. read as set forth above. Secretary’s discretion be published in This rule meets the applicable PART 1—DEFINITIONS the Federal Register, but such standards set forth in section 3 of publication is not required. Executive Order 12988. 1a. The authority citation for Part 1 is revised to read as follows: PART 103—POWERS AND DUTIES; Unfunded Mandates Reform Act of AVAILABILITY OF RECORDS 1995 Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Public Law 107–296, 116 Stat. 6. The heading for Part 103 is revised This rule will not result in the 2135 (6 U.S.C. 1 et seq.). to read as set forth above. expenditure by state, local and tribal government, in the aggregate, or by the 2. In § 1.1, paragraph (o) is revised to 7. The authority citation for Part 103 private sector of $100 million or more read as follows: is revised to read as follows: in any one year, and it will not Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. significantly or uniquely affect small § 1.1 Definitions. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; governments. Therefore, no actions were * * * * * Public Law 107–296, 116 Stat. 2135 (6 U.S.C. deemed necessary under the provisions (o) The term director, when used with 1 et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2. of the Unfunded Mandates Reform Act respect to any function, geographic area, of 1995. office or authority, means the district 8. Section 103.1 is revised to read as Executive Order 13132 director, service center director, district follows: director for interior enforcement or for This rule will not have substantial § 103.1 Delegations of authority; other specified function, or other official designation of immigration officers. direct effects on the States, on the within the Bureau of Citizenship and relationship between the National (a) Delegations of authority. Immigration Services, the Bureau of Government and the States, or on the Delegations of authority to perform Immigration and Customs Enforcement, distribution of power and functions and exercise authorities under the Bureau of Customs and Border responsibilities among the various the immigration laws may be made by levels of government. Therefore, in Protection, or other component of the the Secretary of Homeland Security as accordance with section 6 of Executive Department of Homeland Security who provided by § 2.1 of this chapter. Order 13132, the Department of Justice has been delegated the function or (b) Immigration Officer. Any has determined that this rule does not authority by the Secretary of Homeland immigration officer, immigration have sufficient federalism implications Security for an office, region, district or inspector, immigration examiner, to warrant the preparation of a geographic area. adjudications officer, Border Patrol federalism summary impact statement. * * * * * agent, aircraft pilot, airplane pilot,

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helicopter pilot, deportation officer, Authority: 8 U.S.C. 1103, 1221, 1229; (14) Supervisory asylum officers; detention enforcement officer, detention Homeland Security Act of 2002, Public Law (15) Supervisory border patrol agents; 107–296; 8 CFR part 2. officer, investigator, special agent, (16) Directors of investigations; investigative assistant, intelligence 10. Section 239.1 is amended by (17) District directors for interior officer, intelligence agent, general revising paragraph (a) to read as follows: enforcement; attorney, applications adjudicator, (18) Deputy or assistant district § 239.1 Notice to appear. contact representative, chief legalization directors for interior enforcement; (a) Issuance of notice to appear. Any officer, supervisory legalization officer, (19) Director of detention and immigration officer performing an legalization adjudicator, legalization removal; inspection of an arriving alien at a port- officer and legalization assistant, of-entry may issue a notice to appear to (20) Supervisory asylum officers; forensic document analyst, fingerprint such an alien. In addition, the following (21) Port directors; specialist, immigration information officers, or officers acting in such (22) Deputy port directors; officer, immigration agent capacity, may issue a notice to appear: (23) Directors of juvenile affairs; (investigations), asylum officer, other (1) District directors (except foreign); (24) Directors or officers in charge of officer or employee of the Department of (2) Deputy district directors (except detention facilities; Homeland Security or of the United foreign); (25) Directors of field operations; States as designated by the Secretary of (3) Chief patrol agents; (26) Deputy or assistant directors of Homeland Security as provided in § 2.1 (4) Deputy chief patrol agents; field operations; or (5) Service center directors; of this chapter, or senior or supervisory (27) Other officers or employees of the officer of such employee, is hereby (6) Deputy service center directors; (7) Assistant service center directors Department of Homeland Security or of designated as an immigration officer the United States who are delegated the authorized to exercise the powers and for examinations; (8) Officers in charge (except foreign); authority to issue notices to appear as duties of such officer as specified by the (9) Assistant officers in charge (except provided by § 2.1 of this chapter. Act and this chapter. foreign); * * * * * (10) Supervisory special agents; Dated: February 28, 2003. PART 239—INITIATION OF REMOVAL (11) Supervisory deportation officers; PROCEEDINGS (12) Supervisory detention and Tom Ridge, deportation officers; Secretary of Homeland Security. 9. The authority citation for part 239 (13) Supervisory district adjudications [FR Doc. 03–5146 Filed 3–5–03; 8:45 am] is revised to read as follows: officers; BILLING CODE 4410–10–P

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Part VIII

Securities and Exchange Commission Order Making Fiscal 2003 Mid-Year Adjustment to the Fee Rates Applicable Under Sections 31(b) and (c) of the Securities Exchange Act of 1934; Notice

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SECURITIES AND EXCHANGE year through fiscal 2011, the annual, after consultation with the CBO and the COMMISSION and in certain circumstances, mid-year OMB),11 the Commission estimates that adjustment mechanisms will result in the aggregate dollar amount of sales for [Release No. 34–47425/February 28, 2003] additional fee rate reductions if the the remainder of fiscal 2003 to be CBO’s January 2001 projection of dollar $14,847,347,328,783. Thus, the Order Making Fiscal 2003 Mid-Year volume for the fiscal year proves to be Commission estimates that the actual Adjustment to the Fee Rates too low, and fee rate increases if the aggregate dollar volume of sales for all Applicable Under Sections 31(b) and CBO’s January 2001 projection of dollar of fiscal 2003 will be (c) of the Securities Exchange Act of volume for the fiscal year proves to be $21,921,327,438,013. 1934 too high. Because $33,158,519,250,001 is more I. Background II. Determination of the Need for a Mid- than 10% greater than the $21,921,327,438,013 estimated actual Section 31 of the Securities Exchange Year Adjustment in Fiscal 2003 aggregate dollar volume of sales for Act of 1934 (‘‘Exchange Act’’) requires Under section 31(j)(2) of the Exchange fiscal 2003, section 31(j)(2) of the each national securities exchange and Act, the Commission must make a mid- Exchange Act requires the Commission national securities association to pay year adjustment to the fee rates under to issue an order adjusting the fee rates transaction fees to the Commission.1 sections 31(b) and (c) in fiscal year 2003 under sections 31(b) and (c). Specifically, section 31(b) requires each if it determines, based on the actual national securities exchange to pay to aggregate dollar volume of sales during III. Calculation of the Uniform Adjusted the Commission fees based on the the first five months of the fiscal year, Rate aggregate dollar amount of sales of that the baseline estimate Section 31(j)(2) specifies the method certain securities transacted on the ($33,158,519,250,001) is reasonably 2 for determining the mid-year adjustment exchange. Section 31(c) requires each likely to be 10% (or more) greater or less for fiscal 2003. Specifically, the national securities association to pay to than the actual aggregate dollar volume Commission must adjust the rates under 8 the Commission fees based on the of sales for fiscal 2003. To make this sections 31(b) and (c) to a ‘‘uniform aggregate dollar amount of sales of determination, the Commission must adjusted rate that, when applied to the certain securities transacted by or estimate the actual aggregate dollar revised estimate of the aggregate dollar through any member of the association volume of sales for fiscal 2003. 3 amount of sales for the remainder of other than on an exchange. Based on data provided by the [fiscal 2003], is reasonably likely to Sections 31(j)(1) and (3) require the national securities exchanges and the produce aggregate fee collections under Commission to make annual national securities association that are 9 section 31 (including fees collected adjustments to the fee rates applicable subject to section 31, the actual during such 5-month period and aggregate dollar volume of sales during under sections 31(b) and (c) for each of assessments collected under [section the first four months of fiscal 2003 was the fiscal years 2003 through 2011, and 31(d)]) that are equal to $7,073,980,109,231.10 Using these data one final adjustment to fix the fee rates [$849,000,000].’’ 12 In other words, the 4 and a methodology for estimating the for fiscal year 2012 and beyond. uniform adjusted rate is determined by aggregate dollar amount of sales for the Section 31(j)(2) requires the subtracting fees collected prior to the remainder of fiscal 2003 (developed Commission, in certain circumstances, effective date of the new rate and to make a mid-year adjustment to the fee assessments collected under section fiscal years. The target offsetting collection amounts rates in fiscal 2002 through fiscal 2011. 31(d) during all of fiscal 2003 from The annual and mid-year adjustments for fiscal 2007 through 2011 were determined by applying a rate of $7 per million to the CBO’s $849,000,000, which is the target are designed to adjust the fee rates in a January 2001 projections of dollar volume for those offsetting collection amount for fiscal given fiscal year so that, when applied fiscal years. For example, CBO’s January 2001 projection of dollar volume for fiscal 2003 was 2003. That difference is then divided by to the aggregate dollar volume of sales the revised estimate of the aggregate for the fiscal year, they are reasonably $56,600,000,000,000. Applying the initial rate under the Fee Relief Act of $15 per million to that dollar volume of sales for the remainder likely to produce total fee collections projection produces the target offsetting collection of the fiscal year following the effective under section 31 equal to the ‘‘target amount for fiscal 2003 of $849,000,000. date of the new rate. 8 The amount $33,158,519,250,001 is the baseline offsetting collection amount’’ specified The Commission estimates that it will in section 31(l)(1) for that fiscal year.5 estimate of the aggregate dollar amount of sales for fiscal year 2003 calculated by the Commission in collect $311,031,169 in fees for the For fiscal 2003, the target offsetting its Order Making Fiscal 2003 Annual Adjustments 6 period prior to the effective date of the collection amount is $849,000,000. to the Fee Rates Applicable Under Section 6(b) of mid-year adjustment 13 and $22,100 in Congress established the target the Securities Act of 1933 and sections 13(e), 14(g), 31(b) and 31(c) of the Securities Exchange Act of offsetting collection amounts in the 1934, Rel. No. 34–45842 (April 29, 2002), 67 FR 11 See Appendix A. Investor and Capital Markets Fee Relief 22126 (May 2, 2002). 12 15 U.S.C. 78ee(j)(2). The term ‘‘fees collected’’ Act (‘‘Fee Relief Act’’) by applying 9 Each exchange is required to file a monthly is not defined in section 31. Because national reduced fee rates to the Congressional report on Form R–31 containing dollar volume data securities exchanges and national securities Budget Office’s (‘‘CBO’’) January 2001 on sales of securities subject to section 31 on the associations are not required to pay the first exchange. The report is due by the end of the month installment of section 31 fees for fiscal 2003 until projections of dollar volume for fiscal following the month for which the exchange March 15, the Commission will not ‘‘collect’’ any years 2002 through 2011.7 In any fiscal provides dollar volume data. The NASD Inc. fees in the first five months of fiscal 2003. See 15 (‘‘NASD’’) provides data separately. U.S.C. 78ee(e). However, the Commission believes 1 15 U.S.C. 78ee. 10 Although section 31(j)(2) indicates that the that, for purposes of calculating the mid-year adjustment, Congress, by stating in section 31(j)(2) 2 15 U.S.C. 78ee(b). Commission should determine the actual aggregate dollar volume of sales for fiscal 2003 ‘‘based on the that the ‘‘uniform adjusted rate * * * is reasonably 3 15 U.S.C. 78ee(c). actual aggregate dollar volume of sales during the likely to produce aggregate fee collections under 4 15 U.S.C. 78ee(j)(1) and (j)(3). first 5 months of such fiscal year,’’ data are only section 31 * * * that are equal to [$849,000,000],’’ 5 See 15 U.S.C. 78ee(l)(1). available for the first four months of the fiscal year intended the Commission to include the fees that 6 Id. as of the date the Commission is required to issue the Commission will collect based on transactions 7 The target offsetting collection amounts for this order, i.e., March 1, 2003. Dollar volume data in the six months before the effective date of the fiscal 2002 through 2006 were determined by on sales of securities subject to section 31 for mid-year adjustment. applying a rate of $15 per million to the CBO’s February 2003 will not be available from the 13 This calculation is based on applying a fee rate January 2001 projections of dollar volume for those exchanges and the NASD for several weeks. of $30.10 per million to the projected aggregate

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assessments on round turn transactions V. Conclusion These are given by µ = 0.014 and s = 0.116, in security futures products during all of respectively. Accordingly, pursuant to section 31 of fiscal 2003. Using the methodology 4. Assume that the natural logarithm of the Exchange Act,16 referenced in part II above, the ADS follows a random walk, so that Ds and It is hereby ordered that each of the Commission estimates that the aggregate Dt are statistically independent for any two dollar volume of sales for the remainder fee rates under sections 31(b) and (c) of months s and t. the Exchange Act shall be $46.80 per of fiscal 2003 following the effective 5. Under the assumption that Dt is normally $1,000,000 of the aggregate dollar date of the new rate will be distributed, the expected value of ADSt/ amount of sales of securities subject to µ 2 $11,505,683,278,185. Based on these ADSt¥1 is given by exp ( + s /2), or on × estimates, the uniform adjusted rate is these sections effective April 1, 2003. average ADSt = 1.020 ADSt¥1. $46.80 per million of the aggregate By the Commission. 6. For February 2003, this gives a forecast × dollar amount of sales of securities.14 Margaret H. McFarland, ADS of 1.020 $80,998,598,695 = $82,654,487,385. Multiply this figure by the The Commission recognizes that this Deputy Secretary. fee rate is higher than the fee rate in 19 trading days in February 2003 to obtain effect prior to the enactment of the Fee Appendix A a total dollar volume forecast of $1,570,435,260,311. Relief Act. However, this higher fee rate A. Baseline Estimate of the Aggregate Dollar is a direct consequence of the decline in Amount of Sales 7. For March 2003, multiply the February 2003 ADS forecast by 1.020 to obtain a dollar volume in fiscal 2003 compared First, calculate the average daily dollar to the CBO’s January 2001 projection of forecast ADS of $84,344,228,109. Multiply amount of sales (ADS) for each month in the this figure by the 21 trading days in March dollar volume for fiscal 2003. The recent sample (January 1993—January 2003). The 2003 to obtain a total dollar volume forecast decline in dollar volume for securities data obtained from the exchanges and of $1,771,228,790,287. transactions subject to section 31 fees is Nasdaq are presented in Table A. The illustrated in Appendix A. monthly aggregate dollar amount of sales 8. Repeat this procedure for subsequent (exchange plus Nasdaq) is contained in months. IV. Effective Date of the Uniform column E. Adjusted Rate B. Using the Forecasts from A To Calculate Next, calculate the change in the natural the New Fee Rate logarithm of ADS from month-to-month. The Section 31(j)(4)(B) of the Exchange 1. Using the data from Table A, determine average monthly change in the logarithm of Act provides that a mid-year adjustment the actual and projected aggregate dollar shall take effect on April 1 of the fiscal ADS over the entire sample is 0.014 and the standard deviation 0.116. Assume the volume of sales between 10/1/02 and 3/21/ year in which such rate applies. 03 to be $9,909,578,791,175. (Allocate the Therefore, the exchanges and the monthly percentage change in ADS follows a random walk. The expected monthly projected aggregate dollar volume in March national securities association that are percentage growth rate of ADS is 2.0 percent. 2003 based on the number of trading days in subject to section 31 fees must pay fees Now, use the expected monthly percentage the periods—15 trading days during 3/1/03 under sections 31(b) and (c) at the growth rate to forecast total dollar volume. and 3/21/03, and 6 trading days during 3/22/ uniform adjusted rate of $46.80 per For example, one can use the ADS for 03 and 3/31/03.) Multiply this amount by the million for sales of securities transacted January 2003 ($80,998,598,695) to forecast fee rate of $30.10 per million dollars in sales on April 1, 2003, and thereafter until the ADS for February 2003 ($82,654,487,385 = during this period and get an estimate of annual adjustment for fiscal 2004 is $80,998,598,695 × 1.020).1 Multiply by the $298,278,322 in actual and projected fees effective.15 number of trading days in February 2003 (19) collected during 10/1/02 and 3/21/03. to obtain a forecast of the total dollar volume Determine the projected aggregate dollar (continued) dollar volume of sales of securities forecast for the month ($1,570,435,260,311). volume of sales between 3/22/03 and 3/31/ subject to section 31 through March 21, 2003, and Repeat the method to generate forecasts for 03 to be $506,065,368,653. Multiply this a rate of $25.20 for the period from March 22, 2003, subsequent months. amount by the fee rate of $25.20 per million to March 31, 2003. Because the Commission’s 2003 The forecasts for total dollar volume are in dollars in sales during this period and get an appropriations act was not enacted prior to the end column I of Table A. The following is a more of fiscal year 2002, Exchange Act section 31(k), the estimate of $12,752,847 in projected fees formal (mathematical) description of the ‘‘Lapse of Appropriation’’ provision, provided that collected during 3/22/03 and 3/31/03. the fee rate in use at the end of fiscal year 2002, procedure: 2. Estimate the amount of assessments on $30.10 per million, remains in effect until 30 days 1. Divide each month’s total dollar volume after the Commission’s regular appropriation for (column E) by the number of trading days in securities futures products collected during fiscal year 2003 was enacted. See also Order Making that month (column B) to obtain the average 10/1/02 and 9/30/03 to be $22,100 by Fiscal 2003 Annual Adjustments to the Fee Rates daily dollar volume (ADS, column F). summing the amounts collected through Applicable Under Section 6(b) of the Securities Act 2. For each month t, calculate the change January of $4,747 with projections of a 2% of 1933 and sections 13(e), 14(g), 31(b) and 31(c) of the Securities Exchange Act of 1934, Rel. No. 34– in ADS from the previous month as Dt = log monthly increase in subsequent months. 45842 (April 29, 2002), 67 FR 22126 (May 2, 2002). (ADSt/ADSt¥1), where log (x) denotes the 3. Using the data from Table A, determine The Commission’s regular appropriation for fiscal natural logarithm of x. the projected aggregate dollar volume of sales year 2003 was enacted on February 20, 2003, and 3. Calculate the mean and standard between 4/1/03 and 9/30/03 to be the $25.20 rate goes into effect 30 days later, by deviation of the series {D1, D2, ..., D120}. $11,505,683,278,185. operation of the statute. See Exchange Act section 31(j)(4)(A)(ii). 4. The rate necessary to collect the target 14 The calculation is as follows: order no later than April 30, 2003, adjusting the fee $849,000,000 in fee revenues is then ($849,000,000¥$311,031,169¥$22,100)/ rates applicable under sections 31(b) and (c) for calculated as: ($849,000,000 ¥ $298,278,322 $11,505,683,278,185 = $0.000046755. Consistent fiscal 2004. These fee rates for fiscal 2004 will be ¥ $12,752,847 ¥ $22,100) ÷ effective on the later of October 1, 2003, or 30 days with the system requirements of the exchanges and $11,505,683,278,185 = .000046755. after the enactment of the Commission’s regular the NASD, the Commission rounds this result to the 5. Consistent with the system requirements seventh decimal point, yielding a rate of $46.80 per appropriation for fiscal 2004. million. 16 15 U.S.C. 78ee. of the exchanges and the NASD, round the 15 Section 31(j)(1) and section 31(g) of the 1 The value 1.020 has been rounded. All rate to the seventh decimal point, yielding a Exchange Act require the Commission to issue an computations are done with the unrounded value. rate of .0000468 (or $46.80 per million).

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TABLE A.—ESTIMATION OF BASELINE OF THE AGGREGATE DOLLAR AMOUNT OF SALES [Methodology developed in consultation with the Office of Management and Budget and the Congressional Budget Office.]

Fee rate calculation

a. Baseline estimate of the aggregate dollar amount of sales, 10/1/02 to 3/21/03 ($Millions) ...... 9,909,579 b. Baseline estimate of the aggregate dollar amount of sales, 3/22/03 to 3/31/03 ($Millions) ...... 506,065 c. Baseline estimate of the aggregate dollar amount of sales, 4/1/03 to 9/30/03 ($Millions) ...... 11,505,683 d. Estimated collections in assessments on securities futures products in FY 2003 ($Millions) ...... 0.022 d. Implied fee rate (($849,000,000 ¥ 0.0000301*a ¥ 0.0000252*b ¥ d)/c) ...... $46.755

(B) # of (C) (D) (E) (F) (G) (I) (A) trading Exchange-listed dol- Nasdaq dollar Aggregate Dollar Average daily dollar Change (H) Forecast aggregate Month days in lar amount of sales amount of sales Amount of Sales amount of sales in LN of Forecast ADS dollar amount of month (ADS) ADS sales

Data

Jan-93 ...... 20 212,344,305,792 107,992,636,000 320,336,941,792 16,016,847,090 ...... Feb-93 ...... 19 238,758,759,740 107,865,220,000 346,623,979,740 18,243,367,355 0.130 ...... Mar-93 ...... 23 254,153,083,005 104,714,261,000 358,867,344,005 15,602,928,000 0.000 ...... Apr-93 ...... 21 259,894,323,029 101,842,746,000 361,737,069,029 17,225,574,716 0.099 ...... May-93 ..... 20 228,370,238,902 103,225,212,000 331,595,450,902 16,579,772,545 ¥0.038 ...... Jun-93 ...... 22 223,269,586,987 105,819,661,000 329,089,247,987 14,958,602,181 ¥0.103 ...... Jul-93 ...... 21 228,189,513,167 101,802,827,000 329,992,340,167 15,713,920,960 0.049 ...... Aug-93 ...... 22 240,087,999,028 117,600,923,000 357,688,922,028 16,258,587,365 0.034 ...... Sep-93 ...... 21 243,134,952,411 117,640,918,000 360,775,870,411 17,179,803,353 0.055 ...... Oct-93 ...... 21 275,653,273,040 139,364,838,000 415,018,111,040 19,762,767,192 0.140 ...... Nov-93 ...... 21 280,909,537,581 127,345,828,000 408,255,365,581 19,440,731,694 ¥0.016 ...... Dec-93 ...... 22 268,471,426,906 114,885,343,000 383,356,769,906 17,425,307,723 ¥0.109 ...... Jan-94 ...... 21 277,615,393,351 137,551,072,000 415,166,465,351 19,769,831,683 0.126 ...... Feb-94 ...... 19 281,053,587,314 122,882,920,000 403,936,507,314 21,259,816,174 0.073 ...... Mar-94 ...... 23 316,713,498,173 151,177,373,000 467,890,871,173 20,343,081,355 ¥0.044 ...... Apr-94 ...... 19 289,365,151,226 114,834,515,000 404,199,666,226 21,273,666,643 0.045 ...... May-94 ..... 21 241,278,516,490 112,318,747,000 353,597,263,490 16,837,964,928 ¥0.234 ...... Jun-94 ...... 22 245,067,967,632 112,555,736,000 357,623,703,632 16,255,622,892 ¥0.035 ...... Jul-94 ...... 20 221,511,138,952 100,563,525,000 322,074,663,952 16,103,733,198 ¥0.009 ...... Aug-94 ...... 23 255,511,795,450 127,675,353,000 383,187,148,450 16,660,310,802 0.034 ...... Sep-94 ...... 21 273,589,300,476 111,984,539,000 385,573,839,476 18,360,659,023 0.097 ...... Oct-94 ...... 21 266,363,537,805 129,089,800,000 395,453,337,805 18,831,111,324 0.025 ...... Nov-94 ...... 21 267,314,618,799 121,827,668,000 389,142,286,799 18,530,585,086 ¥0.016 ...... Dec-94 ...... 21 265,184,891,948 106,839,641,000 372,024,532,948 17,715,453,950 ¥0.045 ...... Jan-95 ...... 21 253,958,524,771 125,092,685,000 379,051,209,771 18,050,057,608 0.019 ...... Feb-95 ...... 19 263,486,075,035 125,574,811,000 389,060,886,035 20,476,888,739 0.126 ...... Mar-95 ...... 23 330,806,034,718 161,066,575,000 491,872,609,718 21,385,765,640 0.043 ...... Apr-95 ...... 19 285,586,213,818 149,741,420,000 435,327,633,818 22,911,980,727 0.069 ...... May-95 ..... 22 340,254,177,379 191,600,883,000 531,855,060,379 24,175,230,017 0.054 ...... Jun-95 ...... 22 376,703,055,609 197,629,158,000 574,332,213,609 26,106,009,710 0.077 ...... Jul-95 ...... 20 346,809,496,831 229,239,839,000 576,049,335,831 28,802,466,792 0.098 ...... Aug-95 ...... 23 327,435,391,060 243,203,335,000 570,638,726,060 24,810,379,394 ¥0.149 ...... Sep-95 ...... 20 352,176,019,676 225,957,920,000 578,133,939,676 28,906,696,984 0.153 ...... Oct-95 ...... 22 386,892,948,035 255,297,230,000 642,190,178,035 29,190,462,638 0.010 ...... Nov-95 ...... 21 340,868,134,565 255,556,416,000 596,424,550,565 28,401,169,075 ¥0.027 ...... Dec-95 ...... 20 386,356,222,037 238,254,219,000 624,610,441,037 31,230,522,052 0.095 ...... Jan-96 ...... 22 412,342,988,854 275,256,103,000 687,599,091,854 31,254,504,175 0.001 ...... Feb-96 ...... 20 432,110,721,273 255,121,750,000 687,232,471,273 34,361,623,564 0.095 ...... Mar-96 ...... 21 462,522,216,093 252,313,904,000 714,836,120,093 34,039,815,243 ¥0.009 ...... Apr-96 ...... 21 419,529,647,022 284,880,671,000 704,410,318,022 33,543,348,477 ¥0.015 ...... May-96 ..... 22 444,864,509,489 323,514,998,000 768,379,507,489 34,926,341,250 0.040 ...... Jun-96 ...... 20 364,047,300,223 267,051,480,000 631,098,780,223 31,554,939,011 ¥0.102 ...... Jul-96 ...... 22 405,998,331,384 282,430,397,000 688,428,728,384 31,292,214,927 ¥0.008 ...... Aug-96 ...... 22 347,207,351,036 222,902,421,000 570,109,772,036 25,914,080,547 ¥0.189 ...... Sep-96 ...... 20 361,752,600,688 255,491,281,000 617,243,881,688 30,862,194,084 0.175 ...... Oct-96 ...... 23 450,138,412,454 314,131,029,000 764,269,441,454 33,229,106,150 0.074 ...... Nov-96 ...... 20 468,499,807,419 279,994,893,000 748,494,700,419 37,424,735,021 0.119 ...... Dec-96 ...... 21 475,791,378,753 288,688,118,000 764,479,496,753 36,403,785,560 ¥0.028 ...... Jan-97 ...... 22 578,613,348,586 378,819,289,000 957,432,637,586 43,519,665,345 0.179 ...... Feb-97 ...... 19 500,101,991,446 337,072,192,000 837,174,183,446 44,061,799,129 0.012 ...... Mar-97 ...... 20 526,670,517,788 312,522,211,000 839,192,728,788 41,959,636,439 ¥0.049 ...... Apr-97 ...... 22 541,016,966,315 321,782,247,000 862,799,213,315 39,218,146,060 ¥0.068 ...... May-97 ..... 21 560,712,670,647 365,021,182,000 925,733,852,647 44,082,564,412 0.117 ...... Jun-97 ...... 21 590,497,004,859 339,912,081,000 930,409,085,859 44,305,194,565 0.005 ...... Jul-97 ...... 22 665,142,486,898 420,540,220,000 1,085,682,706,898 49,349,213,950 0.108 ...... Aug-97 ...... 21 646,260,997,751 385,083,141,000 1,031,344,138,751 49,111,625,655 ¥0.005 ...... Sep-97 ...... 21 636,729,800,602 399,730,444,000 1,036,460,244,602 49,355,249,743 0.005 ...... Oct-97 ...... 23 795,309,593,718 534,343,839,000 1,329,653,432,718 57,811,018,814 0.158 ...... Nov-97 ...... 19 614,656,941,587 311,360,937,000 926,017,878,587 48,737,783,084 ¥0.171 ...... Dec-97 ...... 22 771,801,485,199 375,503,531,000 1,147,305,016,199 52,150,228,009 0.068 ...... Jan-98 ...... 20 664,267,640,263 375,290,271,000 1,039,557,911,263 51,977,895,563 ¥0.003 ...... Feb-98 ...... 19 672,565,048,157 408,876,474,000 1,081,441,522,157 56,917,974,850 0.091 ...... Mar-98 ...... 22 798,277,192,905 464,862,662,000 1,263,139,854,905 57,415,447,950 0.009 ...... Apr-98 ...... 21 821,022,063,854 478,804,341,000 1,299,826,404,854 61,896,495,469 0.075 ...... May-98 ..... 20 717,711,593,246 392,290,631,000 1,110,002,224,246 55,500,111,212 ¥0.109 ...... Jun-98 ...... 22 781,193,541,641 464,886,854,000 1,246,080,395,641 56,640,017,984 0.020 ......

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(B) # of (C) (D) (E) (F) (G) (I) (A) trading Exchange-listed dol- Nasdaq dollar Aggregate Dollar Average daily dollar Change (H) Forecast aggregate Month days in lar amount of sales amount of sales Amount of Sales amount of sales in LN of Forecast ADS dollar amount of month (ADS) ADS sales

Jul-98 ...... 22 839,132,005,554 561,429,081,000 1,400,561,086,554 63,661,867,571 0.117 ...... Aug-98 ...... 21 811,893,940,585 494,696,509,000 1,306,590,449,585 62,218,592,837 ¥0.023 ...... Sep-98 ...... 21 899,363,115,702 452,978,456,000 1,352,341,571,702 64,397,217,700 0.034 ...... Oct-98 ...... 22 934,874,788,951 519,628,635,672 1,454,503,424,623 66,113,792,028 0.026 ...... Nov-98 ...... 20 761,843,293,678 534,735,697,587 1,296,578,991,265 64,828,949,563 ¥0.020 ...... Dec-98 ...... 22 831,906,512,838 610,078,427,246 1,441,984,940,084 65,544,770,004 0.011 ...... Jan-99 ...... 19 999,043,017,550 881,762,273,376 1,880,805,290,926 98,989,752,154 0.412 ...... Feb-99 ...... 19 881,206,542,866 771,821,519,115 1,653,028,061,981 87,001,476,946 ¥0.129 ...... Mar-99 ...... 23 1,064,559,310,307 845,323,661,356 1,909,882,971,663 83,038,390,072 ¥0.047 ...... Apr-99 ...... 21 1,200,826,668,871 974,846,639,668 2,175,673,308,539 103,603,490,883 0.221 ...... May-99 ..... 20 1,052,642,277,388 728,648,483,251 1,781,290,760,639 89,064,538,032 ¥0.151 ...... Jun-99 ...... 22 968,355,845,707 728,666,375,241 1,697,022,220,948 77,137,373,679 ¥0.144 ...... Jul-99 ...... 21 968,729,547,313 795,657,683,556 1,764,387,230,869 84,018,439,565 0.085 ...... Aug-99 ...... 22 909,861,580,448 782,763,893,461 1,692,625,473,909 76,937,521,541 ¥0.088 ...... Sep-99 ...... 21 886,209,235,286 842,754,416,364 1,728,963,651,650 82,331,602,460 0.068 ...... Oct-99 ...... 21 1,075,832,673,611 938,836,857,225 2,014,669,530,836 95,936,644,326 0.153 ...... Nov-99 ...... 21 1,125,441,492,744 1,218,999,895,936 2,344,441,388,681 111,640,066,128 0.152 ...... Dec-99 ...... 22 1,260,244,827,356 1,472,542,539,476 2,732,787,366,832 124,217,607,583 0.107 ...... Jan-00 ...... 20 1,293,751,986,296 1,759,510,466,949 3,053,262,453,245 152,663,122,662 0.206 ...... Feb-00 ...... 20 1,237,324,279,941 1,730,179,962,177 2,967,504,242,118 148,375,212,106 ¥0.028 ...... Mar-00 ...... 23 1,675,729,644,521 2,460,195,052,947 4,135,924,697,468 179,822,812,933 0.192 ...... Apr-00 ...... 19 1,429,668,149,369 1,739,658,625,584 3,169,326,774,953 166,806,672,366 ¥0.075 ...... May-00 ..... 22 1,273,774,500,287 1,374,100,073,878 2,647,874,574,166 120,357,935,189 ¥0.326 ...... Jun-00 ...... 22 1,283,603,525,223 1,594,692,767,334 2,878,296,292,557 130,831,649,662 0.083 ...... Jul-00 ...... 20 1,203,862,111,445 1,594,341,902,395 2,798,204,013,840 139,910,200,692 0.067 ...... Aug-00 ...... 23 1,211,624,989,972 1,481,001,529,902 2,692,626,519,874 117,070,718,255 ¥0.178 ...... Sep-00 ...... 20 1,261,317,634,976 1,631,936,332,356 2,893,253,967,332 144,662,698,367 0.212 ...... Oct-00 ...... 22 1,517,440,783,915 1,925,128,263,471 3,442,569,047,386 156,480,411,245 0.079 ...... Nov-00 ...... 21 1,290,090,415,114 1,473,929,732,217 2,764,020,147,331 131,620,007,016 ¥0.173 ...... Dec-00 ...... 20 1,367,739,635,585 1,419,735,645,693 2,787,475,281,277 139,373,764,064 0.057 ...... Jan-01 ...... 21 1,547,342,196,427 1,573,412,629,080 3,120,754,825,507 148,607,372,643 0.064 ...... Feb-01 ...... 19 1,223,669,743,506 1,130,494,302,446 2,354,164,045,952 123,903,370,840 ¥0.182 ...... Mar-01 ...... 22 1,454,524,517,280 1,080,912,409,264 2,535,436,926,544 115,247,133,025 ¥0.072 ...... Apr-01 ...... 20 1,312,755,897,976 991,843,272,797 2,304,599,170,773 115,229,958,539 0.000 ...... May-01 ..... 22 1,320,141,836,216 1,023,175,979,663 2,343,317,815,879 106,514,446,176 ¥0.079 ...... Jun-01 ...... 21 1,241,534,765,288 847,846,047,529 2,089,380,812,818 99,494,324,420 ¥0.068 ...... Jul-01 ...... 21 1,240,941,545,734 757,402,982,130 1,998,344,527,864 95,159,263,232 ¥0.045 ...... Aug-01 ...... 23 1,123,517,678,209 669,526,933,547 1,793,044,611,756 77,958,461,381 ¥0.199 ...... Sep-01 ...... 15 1,051,262,586,802 519,060,855,910 1,570,323,442,711 104,688,229,514 0.295 ...... Oct-01 ...... 23 1,361,284,609,043 787,768,976,829 2,149,053,585,872 93,437,112,429 ¥0.114 ...... Nov-01 ...... 21 1,176,788,120,102 757,448,489,572 1,934,236,609,675 92,106,505,223 ¥0.014 ...... Dec-01 ...... 20 1,170,905,574,588 738,526,447,576 1,909,432,022,164 95,471,601,108 0.036 ...... Jan-02 ...... 21 1,291,250,297,101 842,154,952,554 2,133,405,249,655 101,590,726,174 0.062 ...... Feb-02 ...... 19 1,263,981,883,602 651,569,612,254 1,915,551,495,857 100,818,499,782 ¥0.008 ...... Mar-02 ...... 20 1,389,898,629,427 604,393,572,668 1,994,292,202,095 99,714,610,105 ¥0.011 ...... Apr-02 ...... 22 1,421,949,055,151 627,529,687,636 2,049,478,742,788 93,158,124,672 ¥0.068 ...... May-02 ..... 22 1,385,822,316,157 580,513,560,084 1,966,335,876,241 89,378,903,466 ¥0.041 ...... Jun-02 ...... 20 1,328,095,777,811 519,384,103,360 1,847,479,881,170 92,373,994,059 0.033 ...... Jul-02 ...... 22 1,763,762,436,133 547,406,479,695 2,311,168,915,828 105,053,132,538 0.129 ...... Aug-02 ...... 22 1,351,178,678,292 415,631,867,486 1,766,810,545,778 80,309,570,263 ¥0.269 ...... Sep-02 ...... 20 1,139,710,089,326 365,913,379,195 1,505,623,468,521 75,281,173,426 ¥0.065 ...... Oct-02 ...... 23 1,557,604,059,315 515,148,025,791 2,072,752,085,106 90,119,655,874 0.180 ...... Nov-02 ...... 20 1,281,865,198,491 481,235,326,808 1,763,100,525,299 88,155,026,265 ¥0.022 ...... Dec-02 ...... 21 1,135,751,469,074 401,405,457,153 1,537,156,926,228 73,197,948,868 ¥0.186 ...... Jan-03 ...... 21 1,243,044,958,028 457,925,614,570 1,700,970,572,598 80,998,598,695 0.101 ...... Feb-03 ...... 19 ...... 82,654,487,385 1,570,435,260,311 Mar-03 ...... 21 ...... 84,344,228,109 1,771,228,790,287 Apr-03 ...... 21 ...... 86,068,512,919 1,807,438,771,298 May-03 ..... 21 ...... 87,828,048,014 1,844,389,008,300 Jun-03 ...... 21 ...... 89,623,554,032 1,882,094,634,662 Jul-03 ...... 22 ...... 91,455,766,339 2,012,026,859,466 Aug-03 ...... 21 ...... 93,325,435,340 1,959,834,142,143 Sep-03 ...... 21 ...... 95,233,326,777 1,999,899,862,315

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[FR Doc. 03–5282 Filed 3–5–03; 8:45 am] BILLING CODE 8010–01–P

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Part IX

Department of Labor Employment and Training Administration

20 CFR Part 625 Disaster Unemployment Assistance Program; Final Rule

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DEPARTMENT OF LABOR the individual is not entitled to any Airport. In order to address these types other unemployment compensation . . . of situations, the Department defined Employment and Training or waiting period credit.’’ Section 410(a) the phrase ‘‘unemployment is a direct Administration provides that DUA is to be furnished to result of the major disaster’’ to clarify individuals for no longer than 26 weeks eligibility. By defining the phrase 20 CFR Part 625 after the major disaster is declared. ‘‘unemployment is a direct result of the RIN: 1205–AB31 (Pub. L. 107–154 amended section major disaster,’’ the Department ensured 410(a) of the Stafford Act to extend to greater uniformity in applying the Disaster Unemployment Assistance 39 weeks the availability of assistance to standard. This is consistent with the Program individuals unemployed as a result of first and second rules of construction of the terrorist attacks of September 11, § 625.1(b) and (c) of the DUA AGENCY: Employment and Training 2001.) Furthermore, for any week of regulations, which provide that sections Administration, Department of Labor. unemployment, a DUA payment (a type 410 and 423 of the Stafford Act and the ACTION: Final rule. of unemployment compensation (UC)) is implementing regulations must be not to exceed the maximum weekly construed liberally to carry out the SUMMARY: The Employment and benefit amount authorized under the purposes of the Act and to assure, Training Administration (ETA) of the applicable state UC law, as specified in insofar as possible, the uniform Department of Labor (Department) is the Department’s DUA regulations interpretation and application of the issuing this final rule to clarify implementing section 410(a) of the Act. DUA provisions of the Act throughout eligibility for disaster unemployment The Department operates the DUA the United States. assistance (DUA) in the wake of the program under a delegation of authority major disasters declared as a result of (51 FR 4988, February 10, 1986) to the Definition of ‘‘Unemployment Is a Direct the terrorist attacks of September 11, Secretary of Labor from the Director of Result of the Major Disaster’’ 2001. The Department undertook the Federal Emergency Management In the interim final rule, the emergency rulemaking and published Agency (FEMA). The Secretary of Labor Department interpreted the phrase an interim final rule on November 13, has promulgated and published ‘‘unemployment is a direct result of the 2001, that was effective upon regulations for the DUA program at part major disaster’’ under paragraphs (a)(1) publication and which included a post- 625 of title 20 of the Code of Federal and (b)(1) of § 625.5 to mean that an publication comment period to provide Regulations. The DUA Program is individual’s unemployment must be an an opportunity for public participation administered by the states in accordance immediate result of the disaster itself, in this rulemaking. This final rule takes with an agreement each state has signed and not the result of a longer chain of into account the comments that were with the Secretary of Labor. events precipitated or exacerbated by received. II. Explanation of the Interim Final the major disaster. This rule also DATES: The interim rule is adopted as Rule clarified that an individual’s final, effective March 6, 2003, except for unemployment is a direct result of the amendments to §§ 625.5(c)(2) and (c)(3) On November 13, 2001 (66 FR 56960), the Department added, at § 625.5(c), a major disaster if the unemployment which will be effective April 7, 2003. definition of the phrase ‘‘unemployment resulted from: the physical damage or FOR FURTHER INFORMATION CONTACT: is a direct result of the major disaster,’’ destruction of the work site; the Betty Castillo, Division Chief, Division used in § 625.5(a)(1) and (b)(1) for physical inaccessibility of the work site of Unemployment Insurance determining whether a worker’s or self- due to a federal government closure of Operations, Office of Workforce employed individual’s unemployment the work site, in immediate response to Security, Employment and Training is caused by a major disaster. Section the major disaster; or lack of work, or Administration (ETA), U.S. Department 410(a) of the Stafford Act provides, in loss of revenues, provided that the of Labor, 200 Constitution Avenue, pertinent part, that the President is employer, or the business in the case of NW., Room S–4231, Washington, DC authorized to provide benefit assistance a self-employed individual, prior to the 20210. Telephone: (202) 693–3209 (this to any individual ‘‘unemployed as a disaster, received at least a majority of is not a toll-free number); facsimile: result of a major disaster.’’ The its revenue or income from either an (202) 693–3229; e-mail: Department has consistently interpreted entity damaged or destroyed in the [email protected]. this phrase in its regulations as disaster, or an entity closed by the SUPPLEMENTARY INFORMATION: requiring, for DUA eligibility, that the federal government in immediate individual’s ‘‘unemployment is a direct response to the disaster. This rule I. The Disaster Unemployment result of the major disaster.’’ However, simply sets forth a definition for Assistance Program that phrase had never been defined in determining whose unemployment is a Section 410(a) of the Robert T. the Department’s regulations. (Note that direct result of a major disaster. Stafford Disaster Relief and Emergency paragraphs (a)(2)–(a)(5) and (b)(2)–(b)(4) In the preamble discussion of the Assistance Act (Stafford Act) (42 U.S.C. of § 625.5 also provide for other interim final rule, the Department 5177(a)) sets forth the framework of the circumstances where an individual’s recognized that the terrorist attacks of Disaster Unemployment Assistance unemployment is caused by a major September 11 had a ‘‘ripple effect’’ (DUA) Program. The President is disaster. However, these provisions are throughout the economy, and that many authorized by section 410(a) of the not relevant here.) businesses nationwide suffered serious Stafford Act to provide to any The terrorist attacks of September 11, declines due to the effect these disasters individual who is unemployed as a 2001, resulting in declarations of major had on commerce. However, individuals result of a major disaster declared by the disasters in New York City and who became unemployed as a result of President under the Stafford Act ‘‘such Arlington County, Virginia, were of the general decline in commerce in benefit assistance as he deems catastrophic proportions. They response to these major disasters were appropriate while such individual is presented a number of situations the not unemployed as a ‘‘direct result’’ of unemployed for the weeks of such regulations did not contemplate, such as the major disasters and thus were not unemployment with respect to which the extended closure of Reagan National considered eligible for DUA.

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The above considerations apply be employed to determine whether (AFL–CIO), and the Service Employees equally to any major disaster. They led employees of suppliers of goods or International Union (SEIU). The five the Department to conclude and instruct services to entities physically damaged employee advocacy organizations state agencies that workers and self- by the major disaster may be eligible for included the Urban Justice Center, New employed individuals whose work site, DUA, so too would that analysis be York City, on behalf of the Chinese Staff for example, is within the applicable to employees of suppliers of and Worker’s Association; the National presidentially-declared major disaster goods or services to other entities closed Employment Law Project, New York area yet outside the immediate disaster or taken over by the federal government City and Oakland, California; the site, and who no longer have a job in immediate response to the major Greater Boston Legal Services; the New because the federal government either disaster. Thus, if one of those entities York Taxi Workers’ Alliance, New York closed or took over the work site in provided at least a majority of the City; and the Workforce Organizations immediate response to the major revenue or income of that employer or for Regional Collaboration, Arlington, self-employed individual, the disaster, are potentially eligible for Virginia. In addition, a state senator employees of that business or that self- DUA. The interim final rule included from New York submitted a letter in only employees and self-employed employed individual could be eligible for DUA. support of the comments of the National individuals at facilities closed by the Employment Law Project. The federal government in the major disaster Where it could not be established that Department discusses and responds area. (For further explanation of this at least a majority of the revenue or below only to those comments received issue, see ‘‘Other Changes to the Final income of a business or self-employed that were relevant to the regulatory Rule’’ below.) Examples of eligible individual was dependent upon individuals in the case of an airport providing goods or services to these section we added in the interim final shutdown in the major disaster area entities, DUA eligibility must be denied. rule, § 625.5(c). included airport employees, owners and For example, a taxicab driver would be The furloughed airline worker employees of restaurants and shops potentially eligible for DUA where a submitted a comment requesting an located in airport terminal buildings, majority of his or her business amendment to the interim final rule to and workers or service providers for depended on providing transportation include coverage of employees of these and other facilities where the services between points which included airlines affected by the government- above conditions were met. However, areas cordoned off because of the imposed restrictions on air traffic. The workers at other airports not closed by physical damage of the major disaster or Department realizes that the airline because facilities were closed or the federal government were not industry, as well as this individual, commandeered by the federal considered eligible for DUA under the suffered economically as a result of the interim final rule. Individuals government. On the other hand, DUA eligibility should be denied a taxicab ‘‘ripple effect’’ the September 11 attacks potentially eligible for DUA also had on the overall economy. While the included employees and self-employed driver who cannot establish that a majority of his or her livelihood Department is sympathetic to the effect individuals who could not perform the terrorist attacks had on the airline services or get to their workplace not depended on providing transportation services between points which include industry and others, the interim final only because of physical damage to their rule was promulgated to specifically place of employment but because a areas cordoned off because of either the physical damage of the major disaster or define the phrase ‘‘unemployment as a federal agency, such as FEMA, took over the closing or commandeering of the direct result of the major disaster,’’ as such site for disaster administration facilities in the major disaster area by used in the existing DUA regulations. purposes. Similarly, because the federal the federal government. The Department never intended to government could, as an immediate Further, the interim final rule said define the phrase to include individuals emergency response to the major that DUA is payable only for those unemployed due to an economic ‘‘ripple disaster, close certain facilities such as weeks of unemployment during the effect’’ of a major disaster, as this would bridges or tunnels in the major disaster disaster assistance period that continue area, employees of those facilities could, inappropriately broaden the rule’s scope to be the direct result of the major to include individuals indirectly therefore, be potentially eligible for disaster. Therefore, if the state agency DUA. affected by the disaster. In drafting the finds that an eligible DUA applicant’s interim final rule, the Department did As noted above, the Department also unemployment can no longer be directly take into account the fact that certain concluded in the interim final rule that attributed to the major disaster, the individuals and businesses located an employee or self-employed applicant is no longer unemployed as a individual could be eligible for DUA if outside the disaster area could be direct result of the disaster and is no severely affected by the loss of the entity in the major disaster area was longer eligible for DUA. closed by the government in immediate economic activity within the disaster response to the major disaster or the III. Comments on the Interim Final area. Therefore, the phrase major disaster caused physical damage Rule ‘‘unemployment as a direct result of the to or destruction of an entity in the The Department received comments major disaster’’ is defined to include major disaster area which, before the on the interim final rule from a self-employed individuals, as well as major disaster, provided at least a furloughed airline worker, three state employees of businesses, suffering from majority of the employer’s or self- workforce agencies (Iowa, Kansas, and unemployment because their employers employed individual’s revenue or New Jersey), three labor organizations, or businesses received, before the income. Where less than a majority of and five employee advocacy disaster, more than fifty percent of the employer’s or self-employed organizations. The three labor revenues from businesses damaged, individual’s revenue or income came organizations were the American destroyed, or closed by the government from that entity, the link to the Federation of State, County, and within the major disaster area. The unemployment was viewed as too Municipal Employees (AFSCME), the regulation, however, was never tenuous to be considered direct under American Federation of Labor and intended to cover all of the possible the regulations. Just as this test would Congress of Industrial Organizations economic effects of a disaster.

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Comments From State Workforce organizations and the five employee a self-employed individual, received at Agencies advocacy organizations, along with a least a majority of its revenue or income All the comments from the state New York state senator, submitted from an entity in the major disaster area workforce agencies, and nearly all the nearly identical comments on one or that was either damaged or destroyed in labor organizations and worker more of the following issues: that disaster, or an entity in the major 1. Workers otherwise covered by DUA advocacy groups, complimented the disaster area was closed by the federal should not be denied DUA when the Department for the provisions included government, in immediate response to order rendering the business in the interim final rule. The Kansas that disaster resulting in lack of work or inaccessible is issued by a private or agency supported the amendment made loss of revenues. A major reason for public/governmental entity other than by the interim final rule. Likewise, the adopting these provisions was that, as the federal government in response to Iowa agency supported the amendment, far as the Department knows, there had security concerns or the provision of focusing particularly on how the rule never been a disaster situation where services related to a disaster. the federal government, as a result of the would likely help small businesses in 2. Workers unemployed because their Iowa that serve farmers affected by disaster, closed facilities separate and company did business with an entity apart from the actual disaster site. The major disasters. damaged or destroyed by the disaster The New Jersey agency also supported Department wanted to ensure that should receive DUA when the loss of individuals unemployed at those sites the amendment but requested a revenue from the company ‘‘contributed broadening of the rule to ensure DUA due to a federal closure were considered importantly’’ or ‘‘contributed unemployed as a direct result of the eligibility for individuals not generally significantly’’ (rather than losing the eligible for regular UC. Specifically, major disaster. In all major disasters, majority of one’s income) to the geographic areas within a state New Jersey suggested that individuals employer’s decision (or self-employed who worked exclusively out of an (generally counties and sometimes individual’s decision) to order a layoff cities) are designated as the major airport, such as limousine drivers, or reduce hours of work. would be excluded from DUA eligibility disaster areas. The Department has 3. The regulations should abandon the consistently held that state and local unless the airport was closed or taken requirement that a worker, initially governments’ decisions affecting the over by the government. While that may determined as separated from work due closure of businesses and the health and be true, the Department notes that the to the disaster, must establish on a safety of individuals determine whether amendment expands the coverage for weekly basis that his or her individuals are unemployed as a direct DUA to include the unemployment of unemployment is still the direct result result of the major disaster. For employees and self-employed of the disaster. individuals where, before the disaster, 4. Because the interim final rule example, if a city waste treatment the employer, or the business in the case expanded coverage and was a shift in facility were flooded and the city of a self-employed individual, received policy, any workers who had been ordered certain businesses in an area of at least a majority of its revenue or denied DUA prior to the publication of the city to close because the waste income from an entity that was either the interim final rule, as well as all treatment facility was not functioning as damaged or destroyed in the disaster, or individuals filing for DUA after the a result of the disaster, the Department an entity in the major disaster area rule’s publication should be entitled to would conclude that out-of-work closed by the federal, state or local receive DUA retroactively. individuals from those businesses were government in immediate response to In addition, the AFL–CIO argued that unemployed as a direct result of the the disaster. Thus, if a limousine driver the regulations should provide that a disaster. The Department did not intend lost the majority of his or her business worker’s immigration status is to suggest that the rights of state and due to the government closing an immaterial to DUA eligibility. The AFL– local governments to manage disasters airport, or if the driver obtained the CIO also advocated expanding DUA in their jurisdictions were limited by majority of his or her income from eligibility to include individuals this regulation, which defines serving guests at hotels and the hotels employed in areas near, but not unemployment as a direct result of the were closed because of a major disaster, specifically designated as, disaster disaster. Consequently, in order to be then the individual would be areas. clear that the amendment covers such potentially eligible for DUA. The The Department agrees, in part, with government closings, the Department Department recognizes that the the first proposal to amend § 625.5(c) to has revised § 625.5(c)(2) and (c)(3) to amendment is more restrictive than cover workers due to business closures include closures by the federal, state, or New Jersey advocates. However, the by private or public and governmental local government. Department chose not to broaden the entities in the major disaster area in The Department, however, does not scope of the rule as this would response to security concerns or the believe it sensible to add businesses overextend the rule’s coverage to provision of services related to that closed by private entities, unless such include individuals indirectly injured disaster. The interim final rule added entities were advised or required by by the major disaster, such as workers paragraphs (c)(2) and (c)(3) to § 625.5 governmental agencies to close for secondarily affected by the economic which expanded the circumstances health or safety reasons related to the ‘‘ripple effect’’ after the terrorist attacks under which individuals would be disaster. Indeed, while a private entity of September 11, 2001, as discussed considered unemployed as a direct could decide to close down its above with regard to the airline result of the disaster. The Department operations for any reason, only industry. intended that individuals would be governmental agencies have authority to covered if their unemployment resulted force a closure of facilities or businesses Comments From Labor and Employee from their place of employment in the due to a disaster, usually to protect the Advocacy Organizations major disaster area being closed or taken health and safety of the populace. Given Nearly all of the comments from labor over by the federal government in that government agencies are vested and employee organizations advocated immediate response to that disaster, or with such responsibility, the an expansion of the DUA program to where, prior to the disaster, the Department believes it best to limit reach more workers. The three labor employer, or the business in the case of coverage to individuals unemployed

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due to governmental actions or 2331(a)), the authorizing statute permits DUA eligibility, several commenters recommendations designed to protect the agency 60 days under the Trade Act also requested aggressive publicity of the public’s health and safety, as and 30 days under the expiring North these new eligibility rules. In response opposed to purely private closures. American Free Trade Agreement to these comments, the Department The Department declines to accept the transitional adjustment assistance notes that it advised the state agencies second proposal to amend § 625.5(c) to program to make this determination (19 in New York and Virginia, in a consider an individual unemployed due U.S.C. 2273(a) and 2331(c)(1)), and the memorandum before publication of the to the major disaster if that individual’s recent amendments to the Trade Act interim final rule, of the Department’s loss of income ‘‘contributed now change that time period to 40 days. position on both retroactive and partial importantly’’ or ‘‘contributed Trade Act of 2002, Public Law 107–210, payments and that individuals could be significantly’’ to his or her section 112(b). Under DUA, however, eligible in accordance with the yet unemployment rather than as provided the Department believes that a bright unpublished rule. Thus, the Department in the regulation, which requires that an line test is necessary to ensure benefit made it clear that New York and individual received at least a majority of determinations can be made quickly so Virginia were to apply the principles of his or her revenue or income from the assistance can be given out this rule to all claims arising out of the entity that was damaged, destroyed, or expeditiously to those in need. September 11 terrorist attacks. New closed by the federal government. The Furthermore, several of the comments York, for example, made significant genesis of this majority of revenue or criticized this ‘‘majority of income or efforts to publicize DUA eligibility income test came in the form of a 1994 revenue’’ standard in the interim final criteria using various media in several Advanced Notice of Proposed rule as burdensome on claimants different languages. Rulemaking (59 FR 63670, 63672), because it limits them to producing tax Lastly, the AFL-CIO made two where, for purposes of § 625.5(a)(1), and financial documents. The separate comments. They proposed (a)(3), (b)(1) and (b)(3), the Department Department disagrees and notes that all paying DUA to all aliens, whether proposed that a worker or self-employed evidence (e.g., affidavits, employer legally in the United States or not. individual was considered unemployed statements, and other credible evidence) However, the Department cannot adopt due to the disaster where (s)he was will be considered in establishing a this proposal due to limitations placed unable to perform more than 50 percent claim and not only typical financial on the DUA program by the Personal of his or her usual and customary records. Thus, the Department believes Responsibility and Work Opportunity services that were being performed prior that the ‘‘majority of income or Reconciliation Act of 1996 (PRWORA). to the major disaster because sales to revenue’’ test is fair and provides a more Section 432 of the PRWORA (Pub. L. customers coming to the job site or work workable standard. 104–193), as amended, provides that location were substantially reduced as a The Department also declines to only aliens falling within the definition direct result of the major disaster. While adopt comment three to amend of ‘‘qualified aliens’’ are eligible for this interpretation was never adopted as § 625.5(c) to eliminate the requirement federal public benefits, which include a regulation, the Department did apply for establishing on a weekly basis that benefits under the DUA program. it informally on a case-by-case basis. a claimant’s unemployment is still the Therefore, DUA payments to other than The Department then revised and direct result of the major disaster. Those qualified aliens are prohibited. formalized this interpretation in the advocating this comment believe that The AFL-CIO also advocated interim final rule to include such eliminating this requirement would expanding DUA eligibility to include unemployment due to lack of work, or make DUA more like the regular UC areas close to, but not specifically loss of revenues, where prior to the program, in that once a claimant designated as, major disaster areas. They disaster the employer, or the business in qualifies for benefits (s)he no longer is posited that workers in the District of the case of a self-employed individual, required to establish that the Columbia who were adjacent to the received at least a majority of its unemployment is a result of the original disaster area in Arlington, Virginia were revenue or income from an entity in the layoff or separation. However, the ineligible for DUA even though they major disaster area that was either Department notes that this weekly may have been negatively affected by damaged or destroyed in that disaster, requirement follows the statutory the disaster. The AFL-CIO suggests or an entity in the major disaster area requirements of section 410(a) of the broadening coverage because the closed by the federal government in Stafford Act whereby ‘‘[t]he President is disaster hurt, in a general way, the immediate response to that disaster. authorized to provide to any individual District of Columbia’s economy, so that This majority of income or revenue unemployed as a result of a major the unemployed in DC should be test is a defined amount, can be disaster such benefit assistance as he eligible to receive DUA. The Department determined with a good degree of deems appropriate while such has sought to limit coverage to a ‘‘direct accuracy, utilizes a simple calculation, individual is unemployed for the weeks result’’ of the disaster, since the ‘‘ripple and is an equitable standard applicable of such unemployment with respect to effect’’ on the DC economy and other to all claimants. On the other hand, the which the individual is not entitled to adjacent jurisdictions would be endless. terms ‘‘contributed importantly’’ or any other unemployment The Department notes that the interim ‘‘contributed significantly’’ do not easily compensation.’’ 42 U.S.C. 5177(a). The final rule at § 624.5(c)(3) allows for the translate into a quantifiable amount, Department cannot adopt this proposal coverage of individuals outside the thus lacking the relative ease and as it contravenes the DUA authorizing major disaster area when they can certitude of the majority of income or statute, which establishes eligibility for establish that a majority of their income revenue test. Adopting such subjective benefits on a weekly basis. or business revenue came from an entity criteria would be administratively Comment four on the retroactive in the major disaster area either difficult for state workforce agencies payment of DUA did not propose a damaged or destroyed in the disaster, or dealing with the exigencies of a disaster change to § 625.5(c) but instead closed by the federal government in to implement. While such a addressed the administration of the new immediate response to the disaster. ‘‘contributed importantly’’ test is used DUA regulatory provision. While Thus, an independent contractor in under the Department’s Trade Act advocates for comment four requested Washington, DC, who lost a majority of programs (19 U.S.C. 2272(a)(3) and retroactive benefits due to the change in its income due to the Pentagon attack or

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closure of Reagan National Airport, unemployed due to the federal Instead, the final rule simply clarifies could potentially be eligible for DUA as government’s closure of municipal the rules that states use to determine the could a DC taxi driver, the majority of airports in the Washington, DC eligibility of individuals affected by whose revenue came from trips to and Metropolitan Area, because their place these new types of disasters now from Reagan National Airport. of employment was outside the declared affecting the nation, such as the terrorist major disaster areas of Arlington, Other Changes to the Final Rule attacks of September 11, 2001. Also, the Virginia, and New York City. Moreover, federal government entirely finances The Department notes that it erred in these employees and self-employed DUA benefits. its initial description of the interim final individuals did not have employers or rule when, after describing the limited businesses that received a majority of Paperwork Reduction Act scope of the rule, it said considerations income or revenues from an entity that The Department has determined that led ‘‘the Department to conclude that was either damaged or destroyed in the this final rule contains no new workers and self-employed individuals disaster (e.g., the Pentagon), or an entity information collection requirements. whose work site, for example, is outside in the major disaster area closed by the The existing information collection a major disaster area, and who no longer government in immediate response to requirements are approved under Office have a job because the federal the disaster (e.g., Reagan National of Management and Budget control government either closed or took over Airport). Therefore, these individuals number 1205–0051. the job site in response to the major were ineligible to receive benefits in Executive Order 13132 disaster, are potentially eligible for accordance with the Department’s DUA.’’ (66 FR 56961.) This statement is interpretation. Consequently, in order to The Department has reviewed this wrong since the rule was never intended correct the error in the preamble of the final rule in accordance with Executive to cover the physical inaccessibility to interim final rule and to clarify the Order 13132 regarding federalism. The a place of employment or the lack of Department’s interpretation, the order requires that agencies, to the work or loss of revenues due to damage, Department has revised § 625.5(c)(2) extent possible, refrain from limiting destruction or the closure of entities and (c)(3) to include the phrase ‘‘in the state policy options, consult with states located outside the major disaster area. major disaster area’’ when referencing prior to taking any actions which would As noted earlier in this preamble and as the place of employment and entities restrict states’ policy options, and take demonstrated by the Department’s described in those sections. such action only when there is clear subsequent implementation of the rule constitutional authority and the Effective Date after publication, what was meant was presence of a problem of national scope. not a place of employment or entity Because no changes were made to the Because this is a federal benefit located ‘‘outside the major disaster interim final rule other than to program, the Department has area’’ as that term is defined in the § 625.5(c)(2) and (c)(3), the Department determined that the rule does not have regulations, but instead a place of has determined that this final rule will federalism implications. employment or entity located ‘‘outside be effective upon publication, except for the major disaster site’’ (i.e., the actual § 625.5(c)(2) and (c)(3) which will be Executive Order 12988 area damaged by the disaster and not effective 30 days after publication. The Department drafted and reviewed the broader jurisdiction, such as a Executive Order 12866 this rule in accordance with Executive county or city, that is typically Order 12988, Civil Justice Reform, and designated the major disaster area), but This final rule is a ‘‘significant will not unduly burden the federal court within the major disaster area. regulatory action’’ within the meaning system. The rule has been written to As the interim final rule’s example on of Executive Order 12866 because it minimize litigation and provide a clear taxi drivers and its reference to the meets the criteria of section 3(f)(4) of legal standard for affected conduct, and closure of Reagan National Airport after that Order in that it raises novel or legal has been reviewed carefully to eliminate the terrorist attacks make clear, the policy issues arising out of legal drafting errors and ambiguities. Department intended to cover mandates, the President’s priorities, or individuals whose place of employment the principles set forth in the Executive Unfunded Mandates Reform Act of was located within the major disaster Order. Accordingly, this rule was 1995 and Executive Order 12875 area but which may not have been submitted to, and reviewed by, the The Department has reviewed this located at the actual disaster site. Thus, Office of Management and Budget. It is final rule in accordance with the individuals unemployed due to lack of not ‘‘economically significant’’ within Unfunded Mandates Reform Act of 1995 work, or loss of revenues, would be the meaning of section 3(f)(1) of that (UMRA) (2 U.S.C. 1501 et seq.) and eligible, provided that prior to the Executive Order because it will not have Executive Order 12875. The Department disaster, the employer, or the business an annual effect on the economy of $100 has determined that this rule does not in the case of a self-employed million or more. Rather, the Department include any federal mandate that may individual, received at least a majority estimates the cost of benefits under this result in increased expenditures by of its revenue or income from an entity rule for the major disasters of September state, local, or tribal governments, in the in the major disaster area that was either 11, 2001, to be $2.205 million and, aggregate, or by the private sector, of damaged or destroyed in the disaster, or therefore, projects that the annual cost $100 million or more in any one year. an entity in the major disaster area of benefits under this rule will be far Accordingly, the Department has not closed by the federal, state or local less than $100 million. prepared a budgetary impact statement. government in immediate response to The Department has evaluated the the disaster. rule and finds it consistent with the Regulatory Flexibility Act Since publication of the interim final regulatory philosophy and principles set The Department has determined that rule, the Department has acted forth in Executive Order 12866, which this final rule will not have a significant consistently with this interpretation. governs agency rulemaking. The rule economic impact on a substantial Indeed, the state agency, in accordance will not impact states and state agencies number of small entities. The rule sets with our interpretation, denied benefits in a material way because it would not forth the terms under which states and to Maryland airport workers impose any new requirements on states. state agencies, which are not within the

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definition of ‘‘small entity’’ under 5 Department will submit to each House § 625.5 Unemployment caused by a major U.S.C. 601(6), will pay federal benefits. of Congress and to the Comptroller disaster. Benefits provided under section 410(a) General a report regarding the issuance * * * * * of the Stafford Act are fully funded by of this final rule prior to the effective (c) Unemployment is a direct result of the federal government. Under 5 U.S.C. date of the rule, which will note that the major disaster. For the purposes of 605(b), the Secretary has certified to the this rule does not constitute a ‘‘major paragraphs (a)(1) and (b)(1) of this Chief Counsel for Advocacy of the Small rule’’ for purposes of this Act. section, a worker’s or self-employed Business Administration to this effect. Catalogue of Federal Domestic individual’s unemployment is a direct Accordingly, no regulatory flexibility Assistance Number result of the major disaster where the analysis is required. unemployment is an immediate result of This program is listed in the the major disaster itself, and not the Effect on Family Life Catalogue of Federal Domestic result of a longer chain of events Assistance at No. 17.225, ‘‘Disaster The Department certifies that this precipitated or exacerbated by the Unemployment Assistance (DUA).’’ final rule has been assessed in disaster. Such an individual’s accordance with section 654 of Public List of Subjects in 20 CFR Part 625 unemployment is a direct result of the Law 105–277, 112 Stat. 2681, for its Disaster assistance, Labor, and major disaster if the unemployment effect on family well-being. The resulted from: Department concludes that the rule will Unemployment compensation. (1) the physical damage or destruction not adversely affect the well-being of the Words of Issuance nation’s families. Rather, it should have of the place of employment; Accordingly, the interim final rule a positive effect on family well-being by (2) the physical inaccessibility of the amending part 625 of chapter V of title providing benefits to more individuals place of employment in the major 20, Code of Federal Regulations, which whose households have been affected by disaster area due to its closure by or at was published at 66 FR 56960 on major disasters. the request of the federal, state or local November 13, 2001, is adopted as a final government, in immediate response to Small Business Regulatory Enforcement rule with the following changes to the disaster; or Fairness Act of 1996 and Congressional § 625.5(c)(2) and (c)(3): Notification (3) lack of work, or loss of revenues, PART 625—DISASTER provided that, prior to the disaster, the The Department has determined that UNEMPLOYMENT ASSISTANCE employer, or the business in the case of this final rule is not a major rule as a self-employed individual, received at defined by section 804 of the Small 1. The authority for part 625 least a majority of its revenue or income Business Regulatory Enforcement continues to read as follows: from an entity in the major disaster area Fairness Act of 1996 (5 U.S.C. 804(2)). Authority: 42 U.S.C. 1302; 42 U.S.C. 5164; that was either damaged or destroyed in This rule will not result in an annual 42 U.S.C. 5189a(c); 42 U.S.C. 5201(a); the disaster, or an entity in the major effect on the economy of $100,000,000 Executive Order 12673 of March 23, 1989 (54 disaster area closed by the federal, state or more; a major increase in costs or FR 12571); delegation of authority from the or local government in immediate Director of the Federal Emergency prices; or significant adverse effects on response to the disaster. competition, employment, investment, Management Agency to the Secretary of productivity innovation, or on the Labor, effective December 1, 1985 (51 FR Signed at Washington, DC, on February 27, ability of United States-based 4988); Secretary’s Order No. 4–75 (40 FR 2003. 18515). companies to compete with foreign- Emily Stover DeRocco, based companies in domestic and 2. Section 625.5(c)(1) is republished, Assistant Secretary of Labor. export markets. With regard to the and paragraphs (c)(2) and (c)(3) are [FR Doc. 03–5271 Filed 3–5–03; 8:45 am] revised sections of the final rule, the revised to read as follows: BILLING CODE 4510–30–P

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Part X

Department of Labor Mine Safety and Health Administration Department of Health and Human Services Centers for Disease Control and Prevention

30 CFR Part 72 Determination of Concentration of Responsible Coal Mine Dust; Proposed Rule

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DEPARTMENT OF LABOR for public viewing at http:// V. Public Hearings www.msha.gov/currentcomments.htm. Appendix E. References Appendix F. Supplemental References Mine Safety and Health Administration FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Jr., Director, Office I. Introduction DEPARTMENT OF HEALTH AND of Standards, Regulations and HUMAN SERVICES Variances, MSHA; phone: (202) 693– This reopening notice includes 9440; facsimile: (202) 693–9441; E-mail: supplemental information which Centers for Disease Control and updates the preamble of the July 7, 2002 Prevention [email protected]. This document is also available on notice of proposed rulemaking. This information concerns the background, 30 CFR Part 72 MSHA’s webpage at http:// www.msha.gov, under Statutory and MSHA’s current enforcement policy, health effects, quantitative risk RIN 1219–AB18 Regulatory Information; Federal Register Documents; Proposed Rules. assessment, technological feasibility, Determination of Concentration of You can view comments filed on this economic feasibility, compliance costs Respirable Coal Mine Dust rulemaking at http://www.msha.gov/ and benefits, and the list of references currentcomments.htm. and supporting documentation. AGENCIES: Mine Safety and Health The Agencies organized the July 2000 SUPPLEMENTARY INFORMATION: In Administration (MSHA), Department of proposed rule (65 FR 42068) to allow accordance with sections 101 and 202(f) Labor, National Institute for interested persons to first consider of the Federal Mine Safety and Health Occupational Safety and Health, Centers pertinent material on the Agencies’ 1972 Act of 1977 (Mine Act), this document for Disease Control and Prevention, notice followed by an overview of the is published jointly by the Secretary of Department of Health and Human NIOSH mission and assessment of the the Department of Labor, and the Services (DHHS). proposed rule, as well as those aspects Secretary of Health and Human ACTION: Proposed rule; reopening of of MSHA’s coal mine respirable dust record; request for comments; notice of Services. This document should be read in program relevant to this proposed rule. public hearings; correction; close of Following the introductory material is a record. conjunction with: (1) The July 7, 2000 notice of proposed rulemaking (63 FR discussion of the ‘‘measurement objective,’’ or what the Secretaries SUMMARY: The Secretary of Labor and 42068) addressing ‘‘Determination of Concentration of Respirable Coal Mine intend to measure with a single sample the Secretary of Health and Human measurement, and the application of the Services (the Secretaries) are reopening Dust, ‘‘Single Sample’’; and (2) the notice of proposed rulemaking NIOSH Accuracy Criterion for the rulemaking record on a joint determining whether a single sample proposed rule that would determine that addressing Verification of Underground Coal Mine Operator’s Dust Control measurement will ‘‘accurately the average concentration of respirable represent’’ the full-shift atmospheric dust to which each miner in the active Plans, ‘‘Plan Verification,’’ 1219–AB14, published in today’s Federal Register, dust concentration. Next, the validity of workings of a coal mine is exposed can the sampling process is addressed, be accurately measured over a single and (3) the associated Preliminary Regulatory Economic Analysis (PREA) including the performance of the shift. The Secretaries proposed to approved sampler unit, sample rescind a previous 1972 finding by the available on MSHA’s webpage. The plan verification rule would require collection procedures, and sample Secretary of the Interior and the processing. The concept of Secretary of Health, Education and operators to verify that the dust controls specified in the ventilation plan protect measurement uncertainty is then Welfare, on the accuracy of single shift addressed, and why sources of dust sampling. miners from overexposure during normal operations. concentration variability and various The Secretaries are reopening the other factors are not relevant to the rulemaking record to provide interested In addition to this rulemaking, today’s Federal Register contains the Plan proposed rule. In addition, the 2000 parties an additional opportunity to proposed rule summarized the health comment on any issue relevant to the Verification notice of proposed rulemaking, (NPRM). In combination, effects of occupational exposure to July 2000 proposed rule; and to solicit respirable coal mine dust and presented comment on new data and information these rules represent MSHA’s revised program to meet the Mine Act’s MSHA’s quantitative risk assessment. added to the record. Finally, the 2000 proposed rule DATES: We must receive your comments requirement that a miners’ exposure to respirable coal mine dust be maintained explained how the total measurement on or before June 4, 2003. uncertainty is quantified, and how the The Agencies are also announcing at or below the applicable standard on each shift. accuracy of a single sample that they will hold public hearings on measurement meets the NIOSH this reopening notice. The hearing dates I. Introduction Accuracy Criterion. Several and times will be announced by a II. Background Appendices, which contain relevant III. MSHA’s Current Enforcement Policy separate document in the Federal technical information, are attached and Register. IV. Revisions to Update Data for Rulemaking Record incorporated in the preamble to the ADDRESSES: Comments must be clearly (a) Health Effects 2000 proposed rule. identified as such and transmitted either (b) Quantitative Risk Assessment The Secretaries are interested in electronically to [email protected], (c) Technological Feasibility further comment on all issues relevant by facsimile to (202) 693–9441, or by (d) Economic Feasibility to the July 7, 2000 NPRM. The July 7, regular mail or hand delivery to MSHA, (e) Costs and Benefits: Executive Order 2000 NPRM is available on MSHA’s 12866 Office of Standards, Regulations, and (1) Compliance Costs webpage at http://www.msha.gov, under Variances, 1100 Wilson Blvd., Room (2) Benefits Statutory and Regulatory Information, 2313, Arlington, Virginia 22209–3939. (f) Paperwork Reduction Act of 1995 Federal Register Documents, Proposed You may contact MSHA with any (g) Correction to July 7, 2000 Preamble (65 Rules; or you may contact MSHA at format questions. Comments are posted FR 42068) 202–693–9440 for a copy.

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The proposed rule, ‘‘Determination of grounds that the Agencies failed to (a) Health Effects Concentration of Respirable Coal Mine comply with all the requirements for a (Please see Section VII, 65 FR 42075, of Dust,’’ has been referred to as ‘‘Single, health standard under section the July 7, 2000 notice of proposed Full-Shift Sampling’’ based on the 101(a)(6)(A) of the Mine Act (30 U.S.C. rulemaking for a complete discussion of Agencies’ finding that a single, full-shift 811(a)(6)(A)). Health Effects). The following provides measurement would, after applying In response to the Court’s ruling, on an update on the Miners’ Choice valid statistical techniques, accurately July 7, 2000, the Secretaries published Program. represent the atmospheric conditions to in the Federal Register a Notice of which the miner is continuously MSHA and NIOSH implemented the Proposed Rulemaking (NPRM), Miners’ Choice Health Screening exposed. However, where appropriate, Determination of Concentration of the term ‘‘single, full-shift sample,’’ will Program (Miners’ Choice) in October Respirable Coal Mine Dust (Single 1999. The Miners’ Choice program and now be referred to as ‘‘single sample’’ in Sample) (65 FR 42068). In that this document and any subsequent Coal Workers’ X-Ray Surveillance document, the Secretaries proposed a Program (CWXSP) identify cases of publications. This reopening notice new mandatory health standard in 30 does not change the actual finding as simple and complicated CFR part 72 that stated that a single, pneumoconiosis, including coal published in the July 7, 2000 Federal full-shift measurement would accurately Register. workers’ pneumoconiosis and represent atmospheric conditions to silicosis—hereafter referred to as II. Background which a miner is exposed during such ‘‘CWP.’’ All of the Miners’ Choice x-rays shift. The proposed rule would rescind In 1972, the Secretary of Interior and were processed using the same the 1972 Joint Notice of Finding. the Secretary of Health, Education, and procedures and criteria used in the Welfare issued a ‘‘joint finding’’ under During August 2000, three public CWXSP in accordance with the the Federal Coal Mine Health and Safety hearings were conducted. Transcripts of requirements of 42 CFR part 37. Act of 1969. The finding concluded that those proceedings are available to the MSHA and NIOSH are conducting a single, full-shift measurement of public (www.msha.gov, under Statutory preliminary analyses of the first three respirable dust would not, after and Regulatory Information). years of the Miners’ Choice program. These data and analyses are being applying valid statistical techniques, III. MSHA’s Current Enforcement handled, conducted, and reported accurately represent the atmospheric Policy conditions to which the miner is pursuant to the DOL’s and DHHS’s continuously exposed. The Federal Mine Safety and Health respective Information Quality In 1994, the Secretary of Labor and Review Commission’s decision in Guidelines.1 Preliminary analyses of the Secretary of Health and Human MSHA v. Excel, 23 FMSHRC 600 (June these data are expected in Spring 2003. Services tentatively concluded that the 2001) precluded MSHA from citing an The analyses will be made available to 1972 joint finding was incorrect. operator on the average of multiple commenters through the MSHA and Therefore, on February 18, 1994, the samples collected by an inspector on a NIOSH Web sites, www.msha.gov and Secretaries published a proposed Joint single shift. This decision affirmed an www.cdc.gov/niosh/homepage.html, Notice of Finding in the Federal Administrative Law Judge dismissal of respectively. Register (59 FR 8537). The Joint Notice three citations alleging violations of the As of the end of fiscal year 2002, more proposed to rescind the 1972 finding respirable dust standard based on the than 19,500 active coal miners from 20 and, instead, to find that a single, full- average of multiple inspector samples states voluntarily participated in shift measurement will accurately taken on a single shift. The Secretary’s Miners’ Choice. The overall CWP represent the atmospheric conditions appeal of the Commission’s decision is prevalence rate for radiographic with regard to the respirable dust now pending before the D.C. Circuit categories of simple CWP categories 1, concentration during the shift on which Court of Appeals (D.C. Cir. No. 01– 2, 3, and PMF combined was 2.8% (546/ it was taken. Concurrently, on February 1335). Oral argument was held on 19,517) among miners examined in 18, 1994 (59 FR 8356) MSHA published October 7, 2002. In August 2001, MSHA Miners’ Choice during the 2000–2002 a separate Federal Register document ceased issuing citations on the average period. This is similar to the CWP announcing how MSHA intended to use of multiple samples taken on a single prevalence rate of 2.25% for initial both single, full-shift samples and the shift pending a resolution of the appeal. participants in the Miners’ Choice average of multiple, full-shift samples Currently, all noncompliance Program reported in the 2000 NPRM (65 for noncompliance determinations, and determinations are based on the average FR 42100). Among Miners’ Choice solicited public comment on the of multi-shift sample results. Because participants, the CWP prevalence rate proposed enforcement procedure. this change has taken place since was higher among underground coal On February 3, 1998, MSHA and the publication of the July 7, 2000 NPRM, miners at 3.8% (356/9,265), than it was National Institute for Occupational references to enforcement action based for surface coal miners, 1.8% (188/ Safety and Health (NIOSH) published a on the average of multiple samples 10,184). The CWP prevalence rate for final Joint Notice of Finding in the taken by inspectors on a single shift no independent contractors was 2.9% (2/ Federal Register, along with MSHA’s longer reflect MSHA’s current 68). These findings show that CWP enforcement policy implementing the enforcement policy. The promulgation continues to occur among coal miners joint finding (63 FR 5664 and 5687 of the Single Sample rule would address working under the current program to respectively). the 1972 Finding and the consequences In May 1998, the National Mining of the June 2001 Commission decision. 1 Specifically, the information is maintained in a Association and the Alabama Coal confidential manner, all methodologies for data IV. Revisions To Update Data for the processing are transparent, and all available records Association petitioned the United States Rulemaking Record were included. This information is reliable and Court of Appeals for the 11th Circuit to accurate, and is presented in a clear and objective review the 1998 Notice of Finding. On The Agencies also solicit comments manner, as required by the Department of Labor’s Information Quality Guidelines and the Department September 4, 1998, the 11th Circuit on revised information to update the of Health and Human Services’ Guidelines for issued a final decision and order rulemaking record which address the Ensuring the Quality of Information Disseminated vacating the Joint Finding on the following: to the Public.

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control respirable coal mine dust, exposures on at least six shifts during The available data suggest that, unless including quartz. the year under consideration.2 changes are made to bring dust Based on 2001 MSHA and operator concentrations down to at or below the (b) Quantitative Risk Assessment data, there were 716 MMUs (out of dust standard on every shift, the same The Quantitative Risk Assessment 1,256 total) at which dust general pattern of overexposures (QRA) in support of this rule has been concentrations for the DO exceeded the observed in 2001 will persist into the 3 updated to reflect more current data on applicable standard on at least two of future. Therefore, MSHA concludes the pattern of overexposures to the sampling shifts (MSHA, datafile: that without the proposed changes: _ • More than half of all MMUs would respirable coal mine dust. The new data DO 2001.ZIP). MSHA considers these continue to have a pattern of recurrent replaces some of the original 716 MMUs, representing 57 percent of all MMUs and more than one-half of all overexposures on individual shifts; information used to derive the risk • At those MMUs with recurrent estimates for the Single, Full-Shift underground coal miners working in production areas, to have exhibited a overexposures, average respirable dust Sample (65 FR 42068) and Plan concentrations for the DO would Verification (65 FR 42122) Notice of pattern of recurrent overexposures. Valid DO samples were collected on a continue to exceed the applicable Proposed Rulemakings. The updated standards on about 20 percent of all analysis of risk provides the best total of 20,905 shifts at these 716 MMUs, and the applicable standard was production shifts; available evidence pursuant to the • exceeded on 4,028 of these shifts, or Among those shifts on which DO requirements of section 101(a)(6)(A) of 19.3 percent. For this 19.3 percent, the exposure exceeds the applicable the Mine Act. Please refer to section VI. mean excess above the standard, as standards, the mean excess for the DO of the July 7, 2000 (63 FR 42123) notice measured for the DO only, was 1.04 mg/ would continue to be approximately 1 of proposed rulemaking for the previous 3 m 3. mg/m . discussion of the QRA. If all overexposures on individual These results are based on a large shifts are eliminated, the reduction in In this quantitative risk assessment number of shifts (an average of nearly 30 total respirable coal mine dust inhaled (QRA), MSHA will demonstrate that at each of the 716 MMUs). Therefore, by a miner over a working lifetime will eliminating overexposures on each and assuming representative operating depend on three factors: (1) The average every shift would, over a 45-year conditions on these shifts, the results volume of air inhaled on each shift that occupational lifetime, significantly can be extrapolated to all production would otherwise have exceeded the reduce the cumulative exposure to shifts, including those that were not applicable standard, (2) the degree of respirable coal mine dust, thereby sampled, at these same 716 MMUs. reduction in respirable dust reducing the risk of both simple CWP With 99-percent confidence, the overall concentration in the air inhaled on such and PMF among miners. This reduction percentage of production shifts on shifts, and (3) the number of such shifts in risk would be attributed to reducing which the DO sample exceeded the per working lifetime. While the inhaled concentrations on just that percentage of standard was between 18.6 percent and dose (mg) could not be measured shifts currently exhibiting a pattern of 20.0 percent for 2001. At the same directly, it is biologically and recurrent overexposure. confidence level, again assuming quantitatively related to the representative operating conditions, the MSHA has estimated health benefits accumulated exposure (i.e., airborne overall mean excess on noncompliant of the two rules based on eliminating concentration multiplied by duration, shifts at these MMUs was between 0.96 excessive exposures at only those summed across jobs for each miner) mg/m 3 and 1.11 mg/m 3. If, as some MMUs and roofbolter designated areas used to predict CWP and PMF commenters on the earlier single sample (RB–DAs) currently exhibiting a pattern prevalences in the Attfield-Seixas proposed rule and the Dust Advisory of recurrent overexposures on models used in this QRA. If a miner Committee proceedings have alleged, individual shifts. In the previous inhales ten cubic meters of air on a shift operators tend to reduce production proposed rule, MSHA used operator (U.S. EPA, 1980), reducing the and/or increase dust controls on sampling data from the year 1999 to respirable coal mine dust concentration sampled shifts, then the true values identify and characterize such MMUs. in that air by 1.04 mg/m3 will result in could be higher than even the upper In the current proposed rule, MSHA has 10.4 mg less dust inhaled on that shift endpoints of these 99-percent updated the analysis to 2001, included alone. Assuming the miner works 240 confidence intervals. MSHA DO sampling data in addition to shifts per year, then reducing inhaled operator data, and expanded the respirable dust by an average of 10.4 mg 2 quantitative analysis to include the MSHA estimates an MMU average of 384 on 19.3 percent of the shifts will reduce production shifts per year. At MMUs exhibiting a reduction in risk expected for certain pattern of recurrent overexposures in 2001, valid the total respirable coal mine dust miners not previously considered (i.e., DO samples were obtained on an average of about inhaled by 482 mg per year, or nearly miners working in RB–DAs). As a result, 30 of these 384 production shifts. If dust 22,000 mg over a 45-year working MSHA believes it has more accurately concentrations on two or more of the sampled shifts lifetime: exceed the standard, then it follows, at a 95-percent quantified the expected reduction in confidence level, that the standard is exceeded on 1.04 mg less respirable coal mine dust risk for the most exposed miner at least six shifts over the full year. per m3 of inhaled air population currently subjected to If a different definition of ‘‘exhibiting a recurrent × 10 m3 inhaled air per shift recurrent overexposures. pattern of overexposures’’ had been used in the × 46.32 affected shifts (i.e., 19.3% of QRA, the estimate of the reduction in risk and 240) per work year By ‘‘exhibiting a pattern of recurrent associated benefits would have been different. For × 45 work years per working lifetime example, if the criterion were that four or more overexposures,’’ MSHA means that, for = 21,678 mg less respirable coal mine the same DO (MMU) or RB–DA, at least bimonthly DO exposure measurements exceeded the applicable standard then overexposures would dust inhaled per working lifetime. two valid MSHA or operator bimonthly be expected, with 95% confidence, to occur on at In Section V, the strengths and samples exceeded the applicable least 20 shifts in a year of 384 shifts. Using more weaknesses of various epidemiological standard in a given year. MMUs than two recorded overexposures as the criterion exhibiting such a pattern are highly would arbitrarily reduce the population for which MSHA is estimating benefits and decrease the 3 Appendix VI.1 compares the pattern observed in likely to have experienced excessive estimated number of prevented cases. 2001 to that in earlier years.

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studies were presented, supporting the years times 0.20 mg-yr/m3 per year). If, miner retires and is no longer exposed selection of Attfield and Seixas (1995) as some miners have testified, operator to respirable coal mine dust, the as the study that provides the best dust samples submitted to MSHA tend additional risk attributable to an extra available estimate of material health to under-represent the frequency or 9.0 mg-year/m3, accumulated earlier, impairment with respect to CWP. Two magnitude (or both) of individual full- continues to increase with age. strengths of this study are its shift excursions above the applicable Consequently, the benefit to be gained quantitative description of exposure- standard, then eliminating such from eliminating individual shift response among both miners and ex- excursions would provide a lifetime excursions also continues to increase miners (who had worked as miners for reduction of even greater than 9.0 mg- after a miner is no longer exposed. For approximately 13–40 years) and the fact yr/m3 for each affected miner. example, assuming no additional that it reflects recent conditions The Attfield-Seixas models predict exposure after age 65, the predicted experienced by coal miners in the U.S. the prevalence of CWP 1+, CWP 2+, and reduction in average prevalence of CWP Using the exposure-response PMF for miners who have accumulated 1+ increases from 16.6 per thousand at relationship it is possible to estimate the a given amount of exposure, expressed age 65 to 21.4 per thousand at age 70. health impact of bringing dust in units of mg-yr/m3, by the time they Presumably, the increasingly greater concentrations down to or below the attain a specified age. Benefits of predicted reduction in risk of disease applicable standard on every shift. This reducing cumulative exposure can be after age 65 is due to the latent effects is the only contemporary estimated by calculating the difference of the reduction in earlier exposure and epidemiological study of CWP in U.S. between predictions with and without the progressive nature of CWP. miners providing such a relationship. the reduction. For example, suppose a To quantify benefits expected from Attfield and Seixas (op cit) used two miner at one of the MMUs under eliminating overexposures on each and or three B readers to identify the consideration begins work at age 20 and every shift, MSHA applied the Attfield- profusion of opacities based on the ILO retires at age 65. At these MMUs, the Seixas models to a hypothetical classification scheme.4 The most mean DO concentration reported in population of miners who, on average, inclusive category defined in their paper 2001 was 1.15 mg/m3; so, after 45 years, begin working at age 20 and retire at age was CWP 1+, which include simple a miner exposed at this level can be 65, assuming different lifetimes.6 To CWP categories 1, 2, and 3, as well as expected to have accumulated a total show the range of potential reductions PMF. The second category CWP 2+, exposure of nearly 52 mg-yr/m3 (i.e., 45 in risk depending on a miner’s lifetime, × 3 does not include simple CWP, category yr 1.15 mg/m ). By the year of Table VI–1 presents the risk reductions 1, but does include the more severe retirement, such a miner is expected to predicted at three different attained simple CWP categories, 2 and 3, as well accumulate, on average, 9.0 mg-yr/m3 ages: 65, 73, and 80 years. The projected as PMF. The third category used in their less exposure if individual shift benefit increases with attained age. report was PMF, denoting any category excursions are eliminated. For 65-year- However, MSHA’s best estimate of the (A, B, or C) of large opacities. The old miners, reducing an accumulated benefit to exposed miners is expressed 3 authors applied logistic regression total dust exposure of 52 mg-yr/m by by the reduction in prevalence of 3 models to the prevalence of CWP 1+, 9.0 mg-yr/m reduces the predicted disease predicted at age 73.7 Since not CWP 2+, and PMF as a function of prevalence of ‘‘CWP 1+’’ by more than all underground coal miners are accumulated coal mine exposure 16 per thousand (see the entry for overexposed to dust with the same 5 calculated for each miner included in affected DO miners in Table VI–1). frequency or at the same level, Table the study. In the absence of data This result, however, applies only to VI–1 shows the risk reductions DO miners at age 65. The Attfield-Seixas differentiating the inhalation rates of projected for three different categories of models provide different predictions for individual miners, the accumulated affected miners: (1) DO miners, (2) NDO each year of age that a miner attains. exposures in these models were miners who are faceworkers neither 3 The predicted benefit turns out to be expressed in units of mg-yr/m . classified as a DO nor subject to a At the MMUs being considered (those smaller for younger miners and larger separate dust standard applicable to a exhibiting a pattern of recurrent for older miners. This is partly because RB–DA, and (3) DA roofbolters. The overexposures), bringing dust younger miners will have accumulated reduction in risk predicted for each of concentrations down to no more than less exposure reduction as a result of the these three categories will now be the applicable standard on each and single sample and plan verification discussed in turn. every production shift would reduce DO proposals, and partly because the exposures on the affected shifts by an Attfield-Seixas models depend directly (1) DO Miners 3 average of 1.04 mg/m . Assuming this on age as well as on cumulative As explained earlier, for DO miners average reduction applies to only 19.3 exposure. The health effects of recurrent the predicted lifetime exposure percent of the shifts, the effect would be overexposures can occur long after the reduction accumulates at a rate of 0.20 to reduce cumulative exposure, for each overexposures occurred. Even after a mg/m3 of reduced exposure per year miner exposed at or above the DO level, during the 45 ‘‘working years’’ between by 0.20 mg-yr/m3 over the course of a 5 The Attfield-Seixas model predicts a higher working year (i.e., 19.3 percent of shifts prevalence of CWP, and consequently a greater risk 6 Appendix VI.2 contains a technical description 3 reduction (35 per thousand DO miners at age 65), in one year, times 1.04 mg/m per shift). after 45 years of occupational exposure to coal mine of the Attfield-Seixas models and an explanation of Therefore, over a 45-year working dust in central Pennsylvania or southeastern West how MSHA applied them to obtain the results lifetime, the benefit to each affected Virginia. (Attfield and Seixas attribute this effect to shown in Table VI–1. The method used in applying miner would, on average, amount to a the type of coal mined in those geographic areas.) the models differs slightly from that used in the However, few underground coal mines in central previous proposed rule, and Appendix VI.2 also reduction in accumulated exposure of Pennsylvania or southeastern West Virginia are still explains this difference. In addition, an EXCEL 3 approximately 9.0 mg-yr/m (i.e., 45 operating. In fact, only about 29 of the 716 MMUs workbook entitled ‘‘RiskRdxn.xlw’’ showing the exhibiting a pattern of recurrent overexposures in formulas used in the calculations has been placed 4 If three readings were available, the median 2001 were from those areas. Therefore, the risk into the public record for these proceedings. value was used. If two readings were available, the assessment presented here, along with projected 7 The expected lifetime for all American males, higher of the two ILO categories was recorded. benefits of the rule, are based on the lower risks conditional on their having reached 20 years of age, Eighty radiographs were eliminated because only predicted for miners working outside central is 73 years (calculated from U.S. Census, March one reading was available. Pennsylvania and southeastern West Virginia. 1997, Tables 18 and 119).

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20 and 65, reaching a maximum of 9.0 Insp2001.zip). Within each MMU, faceworkers other than the DO who live mg-yr/m3 upon retirement at age 65. MSHA typically takes one sample on an expected lifetime of 73 years is: 2.3 Between ages 65 and 80, the the DO and, on the same shift, four or fewer cases of ‘‘CWP 1+’’ per thousand accumulated reduction in dust exposure more additional samples representing affected NDO miners; 1.5 fewer cases of remains at an estimated average of 9.0 other occupations. In 2001, there was an ‘‘CWP 2+’’ per thousand affected NDO mg-yr/m3, but (as also explained average of 1.0 NDO measurement in miners; and 0.7 fewer cases of PMF per previously) the benefit in terms of both excess of the standard on shifts for thousand affected NDO miners. simple CWP and PMF risk continues to which the DO measurement exceeded increase. the standard.9 For non-DO (3) Roofbolter DA (RB–DA) Miners The first row of Table VI–1 presents measurements that exceeded the Because roofbolters are often exposed the reductions in risk expected among standard on the same shift as a DO to higher quartz concentrations than affected DO miners who work at an measurement, the mean excess above MMU exhibiting a pattern of recurrent the standard was approximately 0.6 mg/ other miners, the applicable dust overexposures. For this group of miners, m3.10 standard for them is frequently different the calculation at an average lifetime of Combining these results with the 19.3 from the standard applicable to other 73 years shows that bringing dust percent rate of excessive exposures miners working in the same MMU. concentrations down to no more than observed for the DO on individual Therefore, many roofbolters are the applicable standard on each shift shifts, it is reasonable to infer that, at classified as working in a ‘‘roofbolter would: the MMUs under consideration, an designated area’’ (RB–DA). For purposes • Reduce the combined risk of simple average of 1 other miner, in addition to of this QRA, such roofbolters were CWP and PMF; the one classified as DO, is currently excluded from the analysis of NDO • Reduce the combined risk of simple overexposed on at least 19 percent of all miners presented above. Based on 2001 CWP and PMF by 24.4 cases per 1000 production shifts. In 2001, the mean of MSHA and operator data, 194 out of a affected DO miners; 8 the highest dust concentration reported total 659 RB–DAs met MSHA’s criterion • Reduce the combined risk of simple for any NDO miner on sampled shifts for exhibiting a pattern of recurrent CWP (category 2 and 3) and PMF by was 1.08 mg/m3. Over the course of overexposures—i.e., dust concentrations 15.5 cases per 1000 affected DO miners; each working year, the reduction in exceeded the applicable standard on at • Reduce the risk of PMF by 7.6 cases exposure expected for such miners as a least two of the sampled shifts (MSHA, per 1000 affected DO miners. result of implementing the proposed datafile: RBDA2001.ZIP). Valid RB–DA When the dust concentration rules is 0.12 mg-yr/m3 (i.e., 19.3 percent samples were collected on a total of measured for the DO exceeds the of one year, times 0.6 mg/m3). 3477 shifts at these 194 RB–DAs, and applicable standard, measurements for To assess the reduction in risk the applicable standard was exceeded at least some of the other miners in the expected from eliminating all single- on 837 of these shifts, or 24.1 percent same MMU may also exceed the shift exposures for these NDO miners, (95% confidence interval: 22.7 to 25.5). standard on the same shift, though MSHA again applied the Attfield and For this 24.1 percent, the mean excess usually by a lesser amount. Seixas models to miners who begin above the standard, as measured for the Furthermore, although the DO working at age 20 and retire at age 65, RB–DA only, was 0.72 mg/m3 (95- represents the occupation most likely to assuming lifetimes of 65, 73, and 80 percent confidence interval: 0.64 to receive the highest exposure, one or years. This time, however, the resulting 0.80). more of these other miners may be decrease in predicted prevalence was exposed to even higher concentrations multiplied by 1.0/6 = 0.167, to reflect At these RB–DAs (i.e., those than the DO on some shifts. Therefore, the fact that the assumed rate of exhibiting a pattern of recurrent the second category of affected miners overexposure applies, on average, to overexposures), the mean concentration 3 addressed in Table VI–1 is the about one-sixth of the faceworkers not reported in 2001 was 0.94 mg/m ; so, population of NDO faceworkers other classified as the DO.11 after 45 years, an RB–DA miner can be than those working in roofbolter DAs The second row of Table VI–1 expected, if there is no change in (who are addressed as a separate, third contains the risk reductions for NDO current conditions, to have accumulated category). miners expected as a result of a total exposure of more than 42 mg-yr/ eliminating all individual shift m3. By retirement at age 65, such a (2) NDO Miners overexposures. Over an occupational miner would be expected to accumulate, This category covers all faceworkers lifetime, the average reduction in risk on average, 7.8 mg-yr/m3 less exposure other than the DO, except those for simple CWP and PMF combined, if overexposures on all individual shifts roofbolters for which a separate DA dust and for PMF alone, increases with age. were eliminated. (45 years × 24.1% of standard has been established. However, the risk reduction at each age 0.72 mg/m3). The third row of Table VI– (Roofbolters not coming under a DA is smaller for the affected NDOs than for 1 shows the estimated impact of the standard are included in the NDO the affected DOs. This is expected proposed rules on the risk predicted for category.) To estimate how NDO miners because the estimated probability that a RB–DA roofbolters. At age 73, reducing (other than those subject to a DA NDO (other than a RB–DA) will, under an accumulated total dust exposure of standard) would be affected by the current conditions, be overexposed on a 42 mg-yr/m3 by 7.8 mg-yr/m3 reduces proposed rules, MSHA examined the given shift is only 16.7 percent of the the predicted prevalence of ‘‘CWP 1+’’ results from all valid dust samples corresponding probability for the DO. by 19.6 per thousand, of ‘‘CWP 2+’’ by collected by MSHA in underground For the MMUs under consideration, the 12.1 per thousand, and of PMF by 6.0 MMUs during 2001 (MSHA, data file: predicted reduction in risk for per thousand.

8 ‘‘Affected DO miners’’ include all miners who 9 With 95-percent confidence, on shifts for which 11 There are an estimated 6 NDO miners for each work at MMUs with a pattern of recurrent the DO measurement exceeds the standard, the DO miner, and an average of 1.0 of these 6 miners overexposures and who are exposed to dust mean number of other occupational measurements is overexposed. This does not include roofbolters concentrations similar to the DO over a 45-year also exceeding the standard is at least 0.91. working in designated areas, who are treated as a 10 working lifetime. With 95-percent confidence, the mean excess is separate group in the present analysis. at least 0.59 mg/m3.

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Appendix VI.1 DO Overexposure for those and only those MMUs 1997 time period (see Table VI–2). Patterns exhibiting recurrent overexposures, the Beginning in 1999, however, there was In 1998, MSHA attempted to enforce overall percentage of production shifts a significant and persistent decrease in compliance on individual shifts. on which the DO was overexposed, as the average excess above the applicable Therefore, to compare the 2001 pattern estimated by the percentage of valid standard (Parameter #3) for MMUs of excess exposures on individual shifts measurements above the applicable exhibiting recurrent overexposures. to that of previous years, MSHA standard; and (3) for the MMUs MSHA attributes this decrease to two examined the regular bimonthly DO identified as exhibiting recurrent important changes in the Agency’s sample data submitted by mine overexposures, the mean excess above inspection program, beginning near the operators in the 10 years from 1990 the applicable standard, as calculated end of 1998. These changes, which both through 1997 and 1999–2000. The same for just those valid measurements that resulted in increased inspector three parameters were considered as exceeded the applicable standard in a presence, were: (1) An increase in the discussed above for 2001: (1) The given year. frequency of MSHA dust sampling at percentage of MMUs exhibiting a Although MSHA found minor underground coal mines; and (2) pattern of recurrent overexposures, as differences between individual years, initiation of monthly spot inspections at indicated by at least two of the valid there was no statistically significant mines that were experiencing difficulty measurements being above the upward or downward trend in any of in maintaining consistent compliance applicable standard in a given year; (2) these three parameters over the 1990– with the applicable dust standard.

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Appendix VI.2 Application of the CWP1+, CWP2+, and PMF as a function Attfield-Seixas Models of cumulative dust exposure (mg-yr/m3). Attfield and Seixas (1995) provide These models all have the following separate logistic regression models for form:

p +× + × + × × = eEqa01 a age a 2exp osure a 3 rank exp osure ( . 1) 1− p

where p is the probability of disease at the public record as part of these models (i.e., MSHA assumed that the a specified age and cumulative proceedings. The coefficient (a3) of value of the indicator variable for exposure. The constant e is the base of ‘‘rank’’ refers to an additional effect of ‘‘rank’’ is zero). the natural logarithms. The empirically cumulative exposure to coal mine dust From equation 1, assuming exposure estimated coefficients a0 (the intercept), in central Pennsylvania or southeastern outside central Pennsylvania and a1, a2, and a3 differ for the three health West Virginia, which the authors southeastern West Virginia, it follows effects considered and are presented in attribute to the rank of the coal mined that the prevalence of disease, assuming Table IV of Attfield and Seixas (op cit). in those areas. Since few mines in those continued exposure at current levels The values for these coefficients are also areas are currently operating, MSHA did and approximate linearity of the shown in the Excel workbook not employ this additional effect in its exposure effect, is (per thousand (RiskRdxn.xlw) MSHA has placed into application of the Attfield-Seixas miners):

y P =×1000 y 1+ y +× + × × where y= ea01 a age a 2( years of exp osure ) (current mean annual exposure) (. Eq 2) Similarly, the prevalence of disease, assuming reduced cumulative exposure attributable to implementation of the proposed rules is (per thousand miners):

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x P =×1000 x 1+ x +× + × × where x= ea01 a age a 2( years of exp osure ) ( reduced mean annual exposure) (. Eq 3)

Note that the ‘‘reduced mean annual procedures since MSHA alone conducts million borne yearly by the coal mining exposure’’ is the current mean annual inspector sampling. However, due to the industry as a result of the proposed exposure (based on 2001 data) reduced promulgation of the Single Sample rule, Single Sample rule is well less than 1 by eliminating overexposures on just some operators would experience a percent (about 0.03 percent) of the that percentage of shifts for which slight increase in the number of industry’s yearly revenues of $17.7 overexposures have been shown to abatement samples they would conduct billion provides convincing evidence currently occur. using current technology. After the that the proposed rule is economically MSHA then estimated the impact of promulgation of the proposed Single feasible. eliminating all overexposures on Sample rule, coal operators would Since single sample and plan individual shifts by calculating (for ages continue to comply with the existing verification are complementary NPRMs 65, 73, and 80) the differences: respirable dust concentration limit of intended to be promulgated at the same 2.0 mg/m3. Such compliance with the time, the detailed presentation of ∆= − PPyx ( Eq . 4) applicable standard has proven feasible assumptions and estimates for each are available in the same Preliminary It is these differences that are over the years. Furthermore, compliance Regulatory Economic Analysis presented in Table VI–1. The determination based on an inspector, (PREA)(MSHA, February 2003). calculations for each specific entry are single sample result was found to be detailed in the EXCEL workbook, technologically feasible during the prior (e) Costs and Benefits: Executive Order RiskRdxn.xlw, which has been placed effective Interim Single-Sample 12866 into the public record.12 Enforcement Policy (Single Sample), in effect from March 2, 1998 through In accordance with Executive Order (c) Technological Feasibility 12866, the Agencies have revised the The following discussion is a September 4, 1998. PREA of the estimated costs and Summary of Chapters 3 and 4 of the (d) Economic Feasibility benefits associated with the proposed Preliminary Regulatory Economic rule for the underground and surface Analysis (PREA). The PREA is available The following discussion is a coal mining sectors. The key findings in hard copy by request and also Summary of Chapters 3 and 4 of the are summarized below. available on MSHA’s Web page under Preliminary Regulatory Economic Statutory and Regulatory Information. Analysis (PREA). The PREA is available 1. Compliance Costs This discussion parallels the Regulatory in hard copy by request and also The Agencies estimate that the cost of Impact Analysis discussion in the available on MSHA’s webpage under this NPRM would be approximately accompanying notice of proposed Statutory and Regulatory Information. $3.1 million annually, of which all but rulemaking, ‘‘Verification of This discussion parallels the Regulatory about $57,000 would be borne by Underground Coal Mine Operators’’ Impact Analysis discussion in the underground coal mine operators (the Dust Control Plans and Compliance accompanying notice of proposed residual $57,000 to be borne by surface Sampling for Respirable Dust,’’ rulemaking, ‘‘Verification of coal mine operators). Table XIII–1 published by MSHA, RIN 1219–AB14, Underground Coal Mine Operators’’ (Summary of Compliance Costs) in today’s Federal Register. Dust Control Plans and Compliance summarizes the estimated compliance MSHA, in consultation with NIOSH, Sampling for Respirable Dust published costs by provision, for underground and believes that compliance with the by MSHA, RIN 1219–AB14, in today’s surface coal mines, for the following proposed Single Sample rule would be Federal Register. three mine size categories: (1) Those technologically feasible for the mining MSHA, in consultation with NIOSH, employing fewer than 20 workers; (2) industry. The Single Sample rule would believes that the Single Sample rule those employing between 20 and 500 predominantly affect MSHA’s would be economically feasible for the workers; and (3) those employing more coal mining industry based on its most than 500 workers. 12 The method used here provides an recent cost estimates. The coal mining The compliance costs arising from the approximation of the expected risk reduction (>), industry would incur costs of Single Sample NPRM would occur as a assuming approximate linearity of the exposure- response relationship over the exposure range of approximately $3.1 million yearly to result of an increase in the number of interest. This differs from the method used in the comply with the proposed Single MSHA inspector citations issued to previous proposed rule, where lower bounds on the Sample rule. Coal mine operators would underground and surface coal mine risk reduction were calculated. The calculations in also incur approximately an additional operators due to the determination of the previous proposed rule defined $1.7 million yearly in penalty costs noncompliance being based on the associated with the additional citations results of a MSHA single sample rather A = Py, ¥ Px, where y’ = y / x and x and x’ = ea0×age arising from the proposed Single than the average of multiple-shift Sample rule.13 That the total $4.8 sample results. The additional citations The previous method results in lower values than those shown in Table VI–1. For example, for ‘‘CWP 13 The estimate of the number of additional citations during the revised base period is lower 1+’’ among affected DO miners at age 73, applying citations MSHA anticipates issuing under the single than the number of citations for the base period the previous method to 2001 operator and MSHA sample rule reflects a substantial increase over the used in the July 7, 2000 cost estimate. The estimate data would have resulted in a calculated risk number of additional citations anticipated under of the number of additional citations MSHA expects reduction of 16.3 per thousand instead of the 24.4 the July 7, 2000 proposed rule. This is because the to issue under the single sample proposed rule rose per thousand presented in Table VI–1. MSHA baseline period employed in the revised cost from 561 in the July 7, 2000 PREA to 909 in the believes the method used in the current proposed estimates (August through December 2001) reflects 2003 revised PREA. This increase in the number of rule more accurately represents the reduction in the time period after which MSHA ceased issuing additional citations is primarily responsible for the risk that can be expected if all individual shift citations based upon multiple samples collected increase in the revised total cost estimate for the overexposures are eliminated. over a single shift. As a result, the number of single sample proposed rule.

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would require mine operators to respirable dust plans; and post a copy from a party violating a rule. Therefore, undertake the following actions and to of dust plans. the penalty costs are not included as incur associated compliance costs: take In addition to these estimated part of the compliance costs of the corrective action(s) in order to get back compliance costs, mine operators would proposed Single Sample rule. These into compliance with the applicable incur yearly penalty cost increases of penalty costs are relevant, however, in dust standard; perform abatement about $1.7 million. Penalty costs determining the economic feasibility of sampling; complete dust data cards; conventionally are not considered to be the proposed Single Sample rule. send abatement samples to MSHA; post a cost of a rule (and, in fact, are clearly The derivation of the above cost abatement sample results; write not a compliance cost) but merely a figures are presented in Chapter IV of transfer payment to the government the PREA that accompanies this rule.

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2. Benefits updated to include the revised QRA;14 combined, MSHA estimates, over an the reduction in the number of active occupational lifetime (45-years) for This benefits analysis is in support of mines (and miners); and more recent miners who live to age 73 and who the proposed Single Sample and Plan information on the Black Lung worked at MMUs exhibiting a pattern of Verification rules, and updates Compensation Program. recurrent overexposures, a minimum of information used in the Single Sample For all categories of simple coal 42 fewer cases among affected DO, NPRM (65 FR 42068) and Plan workers’ (CWP) pneumoconiosis and NDO, and RB–DA miners than would Verification (65 FR 42122) NPRM. The progressive massive fibrosis (PMF) otherwise occur without the revised Plan Verification NPRM is promulgation of the Single Sample and published elsewhere in today’s Federal 14 The revised QRA is published in full in section Plan Verification rules. MSHA and Register. This benefit analysis has been VIII of the Plan Verification NPRM. The QRA has NIOSH believe that the 42 prevented been expanded to include quantitative estimates of reduction in CWP risk estimates for affected cases of CWP identified understate the roofbolters working in designated areas (RB–DA). true benefit of these proposed rules. The

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Benefits chapter of the PREA and the Attn: Desk Officer for MSHA. Please cohort of U.S. bituminous coal miners Benefits section of the proposed Plan send a copy of your comments to MSHA and ex-miners. Am. J. Ind. Med., Vol. Verification rule delineate the reasons at the address listed in the ADDRESSES 27, pp. 137–151, 1995. why this quantitative estimate section of the preamble. Submit written Mine Safety and Health understates the health benefit to all coal comments on the information collection Administration, Excel File, miners (http://www.msha.gov/flex.htm). not later than June 4, 2003. RiskRdnxn.xlw, 2002. Mine Safety and Health (f) Paperwork Reduction Act of 1995 Our paperwork submission summarized above is explained in detail Administration, Number of Percentage The proposed Single Sample rule in the PREA. The PREA includes the of RB-DAs by Mine Size of Underground contains information collections which estimated costs and assumptions for Coal Mines, and Number of Production are subject to review by the Office of each proposed paperwork requirement Shifts, September 4, 2002. Management and Budget (OMB) under related to the proposed Single Sample Mine Safety and Health the Paperwork Reduction Act of 1995 rule. These paperwork requirements Administration, Designated (PRA95). The proposed Single Sample have been submitted to the Office of Occupations Sampling Data, MSHA rule would increase paperwork for Management and Budget for review Data File DO_2001.zip, 2001. surface and underground coal mine under section 3504(h) of the Paperwork Mine Safety and Health operators. Surface coal mines would Reduction Act of 1995. Respondents are Administration, Roof-bolter Designated incur an additional 323 burden hours not required to respond to any Area Sampling Data, MSHA Data File annually costing $9,278. Underground collection of information unless it RBDA2001.zip, 2001. coal mines would incur an additional displays a current valid OMB control Mine Safety and Health 5,354 burden hours annually costing number. The PREA is located on our Administration, Bimonthly Operator $142,690. All of the additional burden Web site at http://www.msha.gov/ Samples for Designated Occupations, _ hours and costs for underground coal REGSINFO.HTM. Comments may be MSHA Data File OP 2001.zip, 2001. mines arising from the Single Sample sent to the addresses listed in the Mine Safety and Health rule would be eliminated as a result of ADDRESSES section of the preamble. Administration, Inspector Samples, CY the promulgation of the plan 2001, MSHA Data File Insp2001.zip, verification rule. (g) Correction to the July 7, 2000 2001. We invite public comments and are Preamble (65 FR 42068) Mine Safety and Health particularly interested in comments On page 42076, column two, line 25, Administration, Preliminary Regulatory which: change ‘‘4.8%’’ to ‘‘5.6%’’. The sentence Economic Analysis, (PREA), Chapter 4, (a) Evaluate whether the proposed should read, ‘‘Across the eight surface February 2003. collection of information (presented cohorts surveyed, the prevalence rate of National Institute for Occupational here and in the PREA for the proposed simple CWP and PMF combined, among Safety and Health, Work-Related Lung Single Sample rule) is necessary for the participants was 5.6%.’’ Disease Surveillance Report: 1999. proper performance of the functions of DHHS (NIOSH) Number 2000–105, MSHA, including whether the V. Public Hearings 1999. information would have practical MSHA and NIOSH plan to hold U.S. Bureau of the Census, Current utility; public hearings on the reopening notice. Population Reports, Table 18. Resident (b) Evaluate the accuracy of our The hearings will be held under Section Population, by Race, 1980 to 1996, and estimate of the burden of the proposed 101 of the Federal Mine Safety and Projections, 1997 to 2050, P25–1095 and collection of information, including the Health Act of 1977. The hearings will be P25–1130; and Population Paper Listing validity of the methodology and held in the following cities: PPL–57, March 1997. assumptions used; (a) Evansville, Indiana; U.S. Bureau of the Census, Current (c) Enhance the quality, utility, and (b) Charleston, West Virginia; Population Reports, Table 119. clarity of the information to be (c) Grand Junction, Colorado; Expectation of Life and Expected collected; and (d) Birmingham, Alabama; Deaths, by Race, and Age: 1994, March (d) Minimize the burden of the (e) Lexington, Kentucky; and 1997. collection of information on (f) Washington, Pennsylvania. U.S. EPA, Guidelines and respondents, including through the use The specific dates, times and facilities methodology used in the preparation of of appropriate automated, electronic, for the hearings will be announced by health effects assessment chapters of the mechanical, or other technological a separate notice in the Federal consent decree water criteria collection techniques or other forms of Register. documents. 45 FR 79347–79357, 1980). information technology, e.g., permitting electronic submissions of responses. Dated: March 3, 2003. Appendix F—Supplemental References We have submitted a copy of this Elaine L. Chao, The following references have been proposed rule to OMB for its review and Secretary, Department of Labor. added to the Single Sample rulemaking approval of these information Dated: March 3, 2003. record. collections. Interested persons are Tommy G. Thompson, Ahmad, D.; Morgan, W.K.C; Lapp, requested to send comments regarding Secretary, Department of Health and Human N.L.; Reger, R.; and J.J. Renn. this information collection, including Services. Meretricious effects of coal dust [letter]. suggestions for reducing this burden, if (see Beeckman-Wagner et al., 2002 for under 10 pages, by facsimile (202) 395– Appendix E—References authors’ response). AM J Respir Crit 6974 to Attn: Desk Officer for MSHA; or The following is a list of references Care, Feb 15; 165(4):552–43, 2002. by e-mail to: [email protected]. All cited in this document. Some of these Althouse, R.B.; Castellan, R.M.; comments may be sent by mail are additions to the existing rulemaking Attfield, M.D.; Bang K.M.; and J.E. addressed to the Office of Information record. Parker, ‘‘Surveillance of and Regulatory Affairs, OMB New Attfield, M.D. and Noah S. Seixas. Pneumoconiosis morbidity in U.S. Executive Office Building, 725 17th St., Prevalence of pneumoconiosis and its underground coal miners: 1975–1995.’’ NW, Rm. 10235, Washington, DC 20503, relationship to dust exposure in a 1998 Elsevier Sciences BV. Advances in

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the Prevention of Occupational Heederik, D. and M. Attfield, Page, S.J.; and J.A. Organiscak, Respiratory Diseases. K. Chiyotani, Y. ‘‘Characterization of Dust Exposure for ‘‘Suggestion of a Cause-and-Effect Hosoda and Y. Aizawa, editors. the Study of Chronic Occupational Lung Relationship Among Coal Rank, Attfield, M.D.; Vallyathan, V. and Disease: A Comparison of Different Airborne Dust, and Incidence of F.H.Y. Green. ‘‘Radiographic Exposure Assessment Strategies.’’ Workers’ Pneumoconiosis.’’ AIHAJ, Appearances of Small Opacities and American Journal of Epidemiology, Volume 61: 785–787, November/ their Correlation with Pathology Volume 151, Number 10, 982–990, December 2000. Grading of Macules, Nodules and Dust 2000. Ruckley, V.A.; Fernie, J.M.; Campbell, Burden in the Lungs.’’ Annual Jimenez-Ruiz, C.A., Masa, F.; S.J.; and H.S. Cowie. H.S., ‘‘Causes of Occupational Hygiene, Volume 38, Miravitlles, M., Gabriel, R.; Vieho, J.L.; Disability in Coal Miners: A Clinico- Supplement I:783–789, 1994. Villsante, C.; Sobradillo, V.; and the Pathological Study of Emphysema, Beeckman-Wagner, L.F.; Wang, M.; IBERPOC Study Investigators, ‘‘Smoking Airways Obstruction and Massive Petsonk, E. and G.R. Wagner. Characteristics: Differences in Attitudes Fibrosis.’’ Report No. TM/89/05, UDC Meretricious effects of coal dust and Dependence Between Healthy 622.872:616 24–007.61. [authors’ response]. American Journal of Smokers and Smokers with COPD.’’ Ruckley, V.A.; et al., ‘‘Comparison of Respiratory Critical Care Medicine. Chest, 119:(5):1365–1370, May 2001. Radiographic Appearances with February 15; 165(4):553, 2002. Kuempel, E.D.; O’Flaherty, E.J.; Associated Pathology and Lung Dust Beeckman, L.F.; Wang, M.L.; Petsonk, Stayner, L.T.; Smith, R.J.; Green, F.H.Y.; Content in a Group of Coalworkers.’’ E.L.; and G.R. Wagner. ‘‘Rapid Declines and V. Vallyathan. ‘‘A Biomathematical British Journal of Industrial Medicine, in FEV1 and Subsequent Respiratory Model of Particle Clearance and 41, 459–467, 1984. Symptoms, Illnesses, and Mortality in Retention in the Lungs of Coal Miners.’’ Scarisbrick, D., ‘‘Silicosis and Coal Coal Miners in the United States. Regulatory Toxicology and Workers’’ Pneumoconiosis. The American Journal of Respiratory Critical Pharmacology, 34:69–87, 2001. Practitioner, 246(1631):114:117, Care Medicine. Vol 163:633–639, 2001. Kuempel, E.D.; Tran, C.; Smith, R.; February 2002. Castranova, V. and V. Vallyathan. and A.J. Bailer. ‘‘A Biomathematical Singh, N.; and G.S. Davis, Review: ‘‘Silicosis and Coal Workers’’ Model of Particle Clearance and Occupational and Environmental Lung Pneumoconiosis,’’ Environmental Retention in the Lungs of Coal Miners.’’ Disease. Curr Opin Pulm Med. 8(2):117– Health Perspectives, Vol 108, Regulatory Toxicology and 125, March 2002. Supplement 4:675–684, August 2000. Pharmacology, 34:88–101, 2001. Tyson, P.A.; Stuffer, J.L.; Mauger, De Vuyst, P. and P. Camus. The past E.A.; Caulfield, J.E.; Conrad, D.W.; and and present of pneumoconioses. Service Lin, L.C.; Yang, S.C.; and K.W. Lu. ‘‘Ventilatory Defect in Coal Workers K.G. Stricklin. ‘‘Silicosis Screening in de Pneumologie, Hopital Erasme, Surface Coal Miners-Pennsylvania, Bruxelles, Belgique. Curr Opin Pulm with Simple Pneumoconiosis: Early Detection of Functional Abnormalities. 1996–1997.’’ MMWR, Volume 49, Med; 6(2):151–6, March 2000. Number 27:612–615, July 14, 2000. Douglas, A.N.; Robertson, A.; Kaohsiung J Med Sci. 17(5):245–52, May 2001. Vallyathan, V.; Goins, M.; Lapp, L.N.; Chapman, J.S.; and V.A. Ruckley. Dust Pack, D.; Leonard, S.; Shi, X.; and V. exposure, dust recovered from the lung, Meyer, J.D.; Holt, D.L.; Chen, Y.; Cherry, N.M.; and J.C. McDonald. Castranova. Changes in Bronchoalveolar and associated pathology in a group of Lavage Indices Associated with British coalminers.’’ British Journal of SWORD ’99: surveillance of work- related and occupational respiratory Radiographic Classification in Coal Industrial Medicine. 43:795–801, 1986. Miners. Am J Respir Crit Care Med. Employment Standards disease in the UK. Occup Med (Lond), 51(3):204–8, May 2001. 162(3 Pt 1):958–965, September 2000. Administration, U.S. Department of Wang, X. and D.C. Christiani, Labor. Office of Workers’ Compensation Mine Safety and Health Administration, Chart, Number and ‘‘Respiratory Symptoms and Functional Programs, Compliance Guide to the Status in Workers Exposed to Silica, Black Lung Benefits Act, May 2001. Percentage of MMUs by Mine Size of Underground Coal Mines, and Number Asbestos, and Coal Mine Dusts.’’ Journal Employment Standards of Occupational and Environmental Administration, U.S. Department of of Production Shifts, July 10, 2002. Mine Safety and Health Medicine, Volume 42, Number 11: Labor, Office of Workers’ Compensation 1076–1084, November 2000. Programs, OWCP Annual Report to Administration, Chart, Mines and Entity in Producing Status, May 14, 2002. Yucesoy, B.; Vallyathan, V.; Congress FY 2000, Submitted to Landsittel, D.P., Sharp, D.S.; Matheson, National Institute for Occupational Congress 2001. J.; Burleson, F.; Luster, M.I. Fernie, J.M. and V.A. Ruckley, Safety and Health, Letter from Dr. Polymorphisms of the IL–1 Gene ‘‘Coalworkers’’ Pneumoconiosis: Michael Attfield, to Melinda Pon, Chief, Complex in Coal Miners with Silicosis. Correlation Between Opacity Profusion Division of Health, Mine Safety and Am J Ind Med, 39(3):286–291, March and Number and Type of Dust Lesions Health Administration, dated September 2001. with Special Reference to Opacity 30, 2002, correcting a July 11, 2002 Type.’’ British Journal of Industrial letter from Dr. Wagner to Ms. Pon, Re: [FR Doc. 03–5402 Filed 3–5–03; 8:45 am] Medicine, 44:273–277, 1987. CWXSP. BILLING CODE 4510–43–P

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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. 11448 (Amended by: Presidential Documents 3 CFR 13286) ...... 10619 Executive orders and proclamations 741–6000 Administrative Orders: 11623 (Amended by: The United States Government Manual 741–6000 Memorandums: 13286) ...... 10619 Memorandum of Other Services 11645 (Amended by: February 12, 2003 ...... 10141 13286) ...... 10619 Electronic and on-line services (voice) 741–6020 Presidential 11800 (Amended by: Privacy Act Compilation 741–6064 Determinations: 13286) ...... 10619 Public Laws Update Service (numbers, dates, etc.) 741–6043 No. 2003–15 of 11858 (Amended by: TTY for the deaf-and-hard-of-hearing 741–6086 February 13, 2003 ...... 10651 13286) ...... 10619 Proclamations: 11926 (Amended by: 7648...... 10641 ELECTRONIC RESEARCH 13286) ...... 10619 7649...... 10643 11965 (Amended by: World Wide Web 7650...... 10645 13286) ...... 10619 7651...... 10647 12002 (Amended by: Full text of the daily Federal Register, CFR and other publications 7652...... 10649 13286) ...... 10619 is located at: http://www.access.gpo.gov/nara Executive Orders: 12146 (Amended by: Federal Register information and research tools, including Public 4601 (Amended by: 13286) ...... 10619 Inspection List, indexes, and links to GPO Access are located at: 13286) ...... 10619 12148 (Amended by: http://www.archives.gov/federallregister/ 10113 (Amended by: 13286) ...... 10619 E-mail 13286) ...... 10619 12160 (Amended by: 10163 (Amended by: 13286) ...... 10619 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13286) ...... 10619 12188 (Amended by: an open e-mail service that provides subscribers with a digital 10179 (Amended by: 13286) ...... 10619 form of the Federal Register Table of Contents. The digital form 13286) ...... 10619 12208 (Amended by: of the Federal Register Table of Contents includes HTML and 10271 (Amended by: 13286) ...... 10619 PDF links to the full text of each document. 13286) ...... 10619 12341 (Amended by: To join or leave, go to http://listserv.access.gpo.gov and select 10448 (Amended by: 13286) ...... 10619 Online mailing list archives, FEDREGTOC-L, Join or leave the list 13286) ...... 10619 12382 (Amended by: (or change settings); then follow the instructions. 10499 (Amended by: 13286) ...... 10619 13286) ...... 10619 12472 (Amended by: PENS (Public Law Electronic Notification Service) is an e-mail 10554 (Amended by: 13286) ...... 10619 service that notifies subscribers of recently enacted laws. 13286) ...... 10619 12501 (Amended by: To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 10631 (Amended by: 13286) ...... 10619 and select Join or leave the list (or change settings); then follow 13286) ...... 10619 12555 (Amended by: the instructions. 10637 (Amended by: 13286) ...... 10619 FEDREGTOC-L and PENS are mailing lists only. We cannot 13286) ...... 10619 12580 (Amended by: respond to specific inquiries. 10694 (Amended by: 13286) ...... 10619 13286) ...... 10619 12656 (Amended by: Reference questions. Send questions and comments about the 10789 (Amended by: 13286) ...... 10619 Federal Register system to: [email protected] 13286) ...... 10619 12657 (Amended by: The Federal Register staff cannot interpret specific documents or 10977 (Amended by: 13286) ...... 10619 regulations. 13286) ...... 10619 12699 (Amended by: 11016 (Amended by: 13286) ...... 10619 FEDERAL REGISTER PAGES AND DATE, MARCH 13286) ...... 10619 12727 (Amended by: 11046 (Amended by: 13286) ...... 10619 9851–10140...... 3 13286) ...... 10619 12728 (Amended by: 10141–10344...... 4 11079 (Amended by: 13286) ...... 10619 10345–10650...... 5 13286) ...... 10619 12733 (Amended by: 11139 (Amended by: 13286) ...... 10619 10651–10952...... 6 13286) ...... 10619 12742 (Amended by: 11190 (Amended by: 13286) ...... 10619 13286) ...... 10619 12743 (Amended by: 11231 (Amended by: 13286) ...... 10619 13286) ...... 10619 12777 (Amended by: 11239 (Amended by: 13286) ...... 10619 13286) ...... 10619 12788 (Amended by: 11366 (Amended by: 13286) ...... 10619 13286) ...... 10619 12789 (Amended by: 11438 (Amended by: 13286) ...... 10619 13286) ...... 10619 12793 (Amended by: 11446 (Amended by: 13286) ...... 10619 13286) ...... 10619 12807 (Amended by:

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13286) ...... 10619 5 CFR 10154, 10156, 10583, 10653 Proposed Rules: 47...... 10316 12824 (Amended by: 110...... 10666 70...... 10784 13286) ...... 10619 71 ...... 10367, 10369, 10654 72...... 10940, 12830 (Amended by: 6 CFR Proposed Rules: 75...... 10784 13286) ...... 10619 9...... 10912 39 ...... 9947, 9950, 9951, 9954, 90...... 10784 12835 (Amended by: 15...... 10886 10185, 10188, 10413, 10416 950...... 10193 13286) ...... 10619 17...... 10892 15 CFR 33 CFR 12870 (Amended by: 21...... 10904 13286) ...... 10619 740...... 10586 52...... 9882 12906 (Amended by: 7 CFR 743...... 10586 117...... 9890 13286) ...... 10619 319...... 9851 772...... 10586 12919 (Amended by: 911...... 10345 774...... 10586 36 CFR 13286) ...... 10619 944...... 10345 Proposed Rules: 16 CFR 12977 (Amended by: 984...... 10347 219...... 10421 13286) ...... 10619 Proposed Rules: 304...... 9856 12978 (Amended by: 930...... 9944 40 CFR 13286) ...... 10619 18 CFR 1405...... 9944 62 ...... 10659, 10661, 10663 12982 (Amended by: 1499...... 9944 375...... 9857 82...... 10370 13286) ...... 10619 388...... 9857 52...... 9892 12985 (Amended by: 8 CFR 180...... 10370, 10377 13286) ...... 10619 20 CFR 1...... 10922 Proposed Rules: 12989 (Amended by: 2...... 10922 625...... 10932 13286) ...... 10619 Ch. I ...... 10675 103...... 10922 62...... 10680, 10681 13011 (Amended by: 235...... 10143 21 CFR 13286) ...... 10619 239...... 10922 165...... 9873 42 CFR 13076 (Amended by: 1001...... 10349 610...... 10157 13286) ...... 10619 1003...... 10349 Proposed Rules: Proposed Rules: 412...... 10421 13100 (Amended by: 1101...... 10349 1...... 10668 13286) ...... 10619 1103...... 10349 111...... 10418 43 CFR 13112 (Amended by: 1205...... 10349 165...... 9955 13286) ...... 10619 1208...... 10349 Proposed Rules: 13120 (Amended by: 1209...... 10349 22 CFR 4100...... 9964 13286) ...... 10619 1212...... 10349 Proposed Rules: 13130 (See: 13286)...... 10619 44 CFR 1216...... 10349 211...... 9944 13133 (Amended by: 1235...... 10349 61...... 9895 13286) ...... 10619 1236...... 10349 24 CFR 64...... 9897 13154 (Amended by: 1238...... 10349 92...... 10160 206...... 9899 13286) ...... 10619 1239...... 10349 13165 (Amended by: 1240...... 10349 26 CFR 47 CFR 13286) ...... 10619 1241...... 10349 1...... 10161, 10655 2...... 10179 13212 (Amended by: 1244...... 10349 20...... 10161 90...... 10179 13286) ...... 10619 1245...... 10349 25...... 10161 73 ...... 10388, 10664, 10665 13223 (Amended by: 1246...... 10349 31...... 10161 95...... 9900 13286) ...... 10619 1249...... 10349 53...... 10161 Proposed Rules: 13228 (Amended by: 1270...... 10349 54...... 10161 54...... 10430 13286) ...... 10619 1274a...... 10349 56...... 10161 73 ...... 10681, 10682, 10683 13231 (Amended by: 1292...... 10349 301...... 10161 13286) ...... 10619 1337...... 10349 49 CFR 13254 (Amended by: 602...... 10161 13286) ...... 10619 9 CFR Proposed Rules: 219...... 10108 13257 (Amended by: 50...... 10361 1...... 10190 225...... 10108 240...... 10108 13286) ...... 10619 92...... 10667 27 CFR 13260 (Amended by: 1540...... 9902 13286; Revoked by: 10 CFR 4...... 10076 Proposed Rules: 13268, eff. 3/31/ 40...... 10362 5...... 10076 192...... 9966 03) ...... 10619 150...... 10362 7...... 10076 13271 (Amended by: 50 CFR Proposed Rules 28 CFR 13286) ...... 10619 40...... 10411 17...... 10388 13274 (Amended by: 150...... 10411 540...... 10656 622...... 10180 13286) ...... 10619 490...... 10320 648...... 9905, 10181 13276 (Amended by: 29 CFR 679 ...... 9902, 9907, 9924, 9942 13286) ...... 10619 14 CFR 1404...... 10659 Proposed Rules: 13284 (See: 13286)...... 10619 Ch. 1 ...... 10145 229...... 10195 13286...... 10619 25...... 9854, 10365 30 CFR 600...... 9967 13287...... 10619 39 ...... 10147, 10149, 10152, 948...... 10178 648...... 9968

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REMINDERS Biscayne Bay, FL; safety Environmental Quality published 2-26-03 [FR The items in this list were zone; published 2-18-03 Incentives Program; 03-04440] editorially compiled as an aid TRANSPORTATION comments due by 3-12- Domestic fisheries; to Federal Register users. DEPARTMENT 03; published 2-10-03 [FR exempted fishing permit 03-02642] Inclusion or exclusion from Maritime Administration applications; comments this list has no legal due by 3-13-03; Vessel documentation: AGRICULTURE significance. DEPARTMENT published 2-26-03 [FR Fishery endorsement; U.S.- 03-04439] flag vessels of 100 feet or Rural Business-Cooperative Service Domestic fisheries; RULES GOING INTO greater in registered exempted fishing permit Program regulations: EFFECT MARCH 6, 2003 length; published 2-4-03 applications; comments TREASURY DEPARTMENT Servicing and collections— due by 3-14-03; AGRICULTURE Internal Revenue Service Farm loan programs published 2-27-03 [FR DEPARTMENT account servicing Income taxes: 03-04566] Agricultural Marketing policies; 30-day past- Magnuson-Stevens Act Earned income credit; Service due period elimination; provisions— published 3-6-03 Limes grown in Florida, and comments due by 3-10- Domestic fisheries; imported; published 3-5-03 03; published 1-9-03 exempted fishing permit COMMODITY FUTURES COMMENTS DUE NEXT [FR 03-00394] applications; comments TRADING COMMISSION WEEK AGRICULTURE due by 3-10-03; Commodity Exchange Act: DEPARTMENT published 2-21-03 [FR Customer funds; deposit in AGRICULTURE Rural Housing Service 03-04138] foreign depositories and in DEPARTMENT Program regulations: Marine mammals: currencies other than U.S. Agricultural Marketing Findings on petitions, etc.— dollars; published 2-4-03 Servicing and collections— Service Alaska transient killer ENVIRONMENTAL Farm loan programs Shell eggs, voluntary grading: account servicing whales; designation as PROTECTION AGENCY depleted; comments USDA ‘‘Produced From’’ policies; 30-day past- Air pollution control; new due by 3-10-03; grademark requirements; due period elimination; motor vehicles and engines: published 1-24-03 [FR comments due by 3-10- comments due by 3-10- Tier 2 motor vehicle 03-01650] 03; published 1-9-03 [FR 03; published 1-9-03 emission standards and 03-00369] [FR 03-00394] ENERGY DEPARTMENT gasoline sulfur control Federal Energy Regulatory AGRICULTURE AGRICULTURE requirements; Commission amendments; published DEPARTMENT DEPARTMENT Electric utilities (Federal Power 12-6-02 Animal and Plant Health Rural Utilities Service Act): HOMELAND SECURITY Inspection Service Program regulations: Transmission grid; efficient DEPARTMENT Interstate transportation of Servicing and collections— operation and expansion; Lobbying restrictions; animals and animal products Farm loan programs pricing policy; comments published 3-6-03 (quarantine): account servicing due by 3-13-03; published Nondiscrimination on basis of Exotic Newcastle disease; policies; 30-day past- 1-27-03 [FR 03-01699] race, color, or national quarantine area due period elimination; ENVIRONMENTAL origin in programs or designations— comments due by 3-10- activities receiving Federal PROTECTION AGENCY California; comments due 03; published 1-9-03 Air pollutants, hazardous; financial assistance; by 3-14-03; published [FR 03-00394] published 3-6-03 national emission standards: 1-13-03 [FR 03-00573] COMMERCE DEPARTMENT Nondiscrimination on basis of Industrial/commercial/ sex in education programs AGRICULTURE National Oceanic and institutional boilers and or activities receiving DEPARTMENT Atmospheric Administration process heaters; Federal financial assistance; Animal and Plant Health Endangered and threatened comments due by 3-14- published 3-6-03 Inspection Service species; pesticide regulation; 03; published 1-13-03 [FR Organization, functions, and Plant-related quarantine, comments due by 3-10-03; 03-00085] authority delegations: domestic: published 1-24-03 [FR 03- Plywood and composite Immigration law Oriental fruit fly; comments 01661] wood products; comments enforcement; published 3- due by 3-11-03; published Fishery conservation and due by 3-10-03; published 6-03 1-10-03 [FR 03-00491] management: 1-9-03 [FR 03-00084] ENVIRONMENTAL LABOR DEPARTMENT AGRICULTURE Alaska; fisheries of PROTECTION AGENCY Employment and Training DEPARTMENT Exclusive Economic Air programs: Administration Farm Service Agency Zone— Disaster unemployment Clean Air Act; alternate Program regulations: Halibut and groundfish; assistance program; seabird incidental take permit program eligibility clarification due to Servicing and collections— reduction; comments approvals— September 11 terrorist Farm loan programs due by 3-10-03; Guam; comments due by attacks; published 3-6-03 account servicing published 2-7-03 [FR 3-10-03; published 1-9- POSTAL SERVICE policies; 30-day past- 03-02805] 03 [FR 03-00119] Domestic Mail Manual: due period elimination; Pollock; comments due by ENVIRONMENTAL Combined or copalletized comments due by 3-10- 3-13-03; published 2-11- PROTECTION AGENCY 03; published 1-9-03 periodicals mailings; label 03 [FR 03-03378] Air programs: [FR 03-00394] standards; published 2-27- Magnuson-Stevens Act Clean Air Act; alternate 03 AGRICULTURE provisions— permit program TRANSPORTATION DEPARTMENT Domestic fisheries; approvals— DEPARTMENT Natural Resources exempted fishing permit Guam; comments due by Coast Guard Conservation Service applications; comments 3-10-03; published 1-9- Ports and waterways safety: Loan and purchase programs: due by 3-13-03; 03 [FR 03-00120]

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ENVIRONMENTAL other revisions; North Dakota; comments due by 3-14-03; published PROTECTION AGENCY comments due by 3-10- due by 3-13-03; published 11-15-02 [FR 02-29067] Air programs; approval and 03; published 12-24-02 2-11-03 [FR 03-03366] TRANSPORTATION promulgation; State plans [FR 02-32294] LABOR DEPARTMENT DEPARTMENT for designated facilities and Radio stations; table of Mine Safety and Health Federal Aviation pollutants: assignments: Administration Administration New Hampshire; comments Ohio; comments due by 3- Civil penalties; inflation Airworthiness directives: due by 3-12-03; published 10-03; published 2-5-03 adjustment; assessment Boeing; comments due by 2-10-03 [FR 03-02540] [FR 03-02667] criteria and procedures; 3-14-03; published 1-13- ENVIRONMENTAL Various States; comments comments due by 3-12-03; 03 [FR 03-00050] PROTECTION AGENCY due by 3-10-03; published published 2-10-03 [FR 03- 2-5-03 [FR 03-02669] TRANSPORTATION Air programs; approval and 03160] DEPARTMENT promulgation; State plans FEDERAL DEPOSIT LABOR DEPARTMENT INSURANCE CORPORATION Federal Aviation for designated facilities and Occupational Safety and Administration pollutants: Practice and procedure: Health Administration Airworthiness directives: New Hampshire; comments Accountants performing Shipyard employment safety Empresa Brasileira de due by 3-12-03; published audit services; removal, and health standards: 2-10-03 [FR 03-02541] suspension, and Aeronautica S.A. debarment; comments due Fire protection; comments (EMBRAER); comments ENVIRONMENTAL due by 3-11-03; published due by 3-10-03; published PROTECTION AGENCY by 3-10-03; published 1-8- 03 [FR 03-00098] 12-11-02 [FR 02-30405] 2-7-03 [FR 03-02783] Air programs; approval and FEDERAL RESERVE LABOR DEPARTMENT TRANSPORTATION promulgation; State plans DEPARTMENT for designated facilities and SYSTEM Pension and Welfare pollutants: Practice and procedure: Benefits Administration Federal Aviation Administration New Hampshire; comments Accountants performing Employee Retirement Income due by 3-12-03; published audit services; removal, Security Act: Airworthiness directives: 2-10-03 [FR 03-02941] suspension, and Fiduciary responsibility; General Electric Co.; Air quality implementation debarment; comments due automatic rollovers; comments due by 3-10- plans; approval and by 3-10-03; published 1-8- comments due by 3-10- 03; published 1-8-03 [FR promulgation; various 03 [FR 03-00098] 03; published 1-7-03 [FR 03-00330] States: HEALTH AND HUMAN 03-00281] TRANSPORTATION West Virginia; comments SERVICES DEPARTMENT LIBRARY OF CONGRESS DEPARTMENT due by 3-12-03; published Food and Drug Copyright Office, Library of Federal Aviation 2-10-03 [FR 03-02938] Administration Congress Administration ENVIRONMENTAL Medical devices: Copyright office and Airworthiness directives: PROTECTION AGENCY Cardiovascular devices— procedures: General Electric Co.; Air quality implementation Arrhythmia detector and Prohibition to circumvention comments due by 3-14- plans; approval and alarm; Class lll to Class of copyright protection 03; published 1-13-03 [FR promulgation; various ll reclassification; systems for access 03-00331] States: comments due by 3-13- control technologies; TRANSPORTATION West Virginia; comments 03; published 12-13-02 exemption; comments due DEPARTMENT due by 3-12-03; published [FR 02-31440] by 3-10-03; published 2- Federal Aviation 2-10-03 [FR 03-02939] HOUSING AND URBAN 10-03 [FR 03-03256] Administration Endangered and threatened DEVELOPMENT SECURITIES AND Airworthiness directives: species; pesticide regulation; DEPARTMENT EXCHANGE COMMISSION Hartzell Propeller Inc.; comments due by 3-10-03; Mortgage and loan insurance Securities and investment comments due by 3-10- published 1-24-03 [FR 03- programs: companies: 03; published 1-8-03 [FR 01661] Single family mortgage Proxy voting policies and 03-00226] Pesticides; tolerances in food, insurance— records disclosure by TRANSPORTATION animal feeds, and raw Appraisals; lender registered management DEPARTMENT agricultural commodities: investment companies; accountability; Federal Aviation comments due by 3-14- Propanoic acid and its comments due by 3-14- Administration calcium and sodium salts; 03; published 1-13-03 03; published 2-7-03 [FR Airworthiness directives: comments due by 3-14- [FR 03-00539] 03-02951] Pilatus Aircraft, Ltd.; 03; published 1-13-03 [FR INTERIOR DEPARTMENT TRANSPORTATION 03-00615] DEPARTMENT comments due by 3-14- Fish and Wildlife Service 03; published 2-7-03 [FR Water programs: Endangered and threatened Coast Guard 03-02994] Water quality standards— species; pesticide regulation; Great Lakes Pilotage Class C and Class D Kentucky; comments due comments due by 3-10-03; regulations; rates update; airspace; comments due by by 3-14-03; published published 1-24-03 [FR 03- comments due by 3-10-03; 3-13-03; published 1-27-03 11-14-02 [FR 02-28922] 01661] published 1-23-03 [FR 03- [FR 03-01313] 01461] FEDERAL INTERIOR DEPARTMENT Class E airspace; comments COMMUNICATIONS Surface Mining Reclamation TRANSPORTATION due by 3-14-03; published COMMISSION and Enforcement Office DEPARTMENT 1-17-03 [FR 03-01130] Common carrier services: Permanent program and Federal Aviation Class E airspace; correction; Satellite communications— abandoned mine land Administration comments due by 3-14-03; Satellite network earth reclamation plan Airmen certification: published 1-29-03 [FR C3- stations and space submissions: Flight simulation device; 01130] stations; rules governing Kentucky; comments due by initial and continuing Restricted areas; comments licensing and spectrum 3-13-03; published 2-11- qualification and use due by 3-10-03; published usage; streamlining and 03 [FR 03-03365] requirements; comments 1-23-03 [FR 03-01476]

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VOR Federal airways and jet by 3-12-03; published 2- Portland, ME; port limits Register but may be ordered routes; comments due by 3- 10-03 [FR 03-03251] extension; comments due in ‘‘slip law’’ (individual 10-03; published 1-23-03 TRANSPORTATION by 3-10-03; published 1-9- pamphlet) form from the [FR 03-01478] DEPARTMENT 03 [FR 03-00432] Superintendent of Documents, TRANSPORTATION Transportation Security TREASURY DEPARTMENT U.S. Government Printing DEPARTMENT Administration Internal Revenue Service Office, Washington, DC 20402 (phone, 202–512–1808). The Federal Highway Maritime and land Income taxes: Administration transportation security: text will also be made Accruals and allocations due available on the Internet from Transportation Equity Act for Transportation of explosives to age attainment, GPO Access at http:// 21st Century; from Canada to U.S. via reductions; and cash www.access.gpo.gov/nara/ implementation: commercial motor vehicle balance plans; nara005.html. Some laws may Federal Lands Highway and railroad carrier; nondiscrimination cross- not yet be available. Program; transportation comments due by 3-10- testing rules application; planning procedures and 03; published 2-6-03 [FR comments due by 3-13- management systems— 03-03005] 03; published 12-11-02 S. 141/P.L. 108–8 Fish and Wildlife Service TREASURY DEPARTMENT [FR 02-31225] and Refuge Roads To improve the calculation of Alcohol, Tobacco and Hearing location and date Program; comments the Federal subsidy rate with Firearms Bureau change; comments due due by 3-10-03; respect to certain small Alcohol; viticultural area by 3-13-03; published published 1-8-03 [FR business loans, and for other designations: 1-17-03 [FR 03-01159] 03-00104] purposes. (Feb. 25, 2003; 117 Russian River Valley, CA; Forest Service and Forest TREASURY DEPARTMENT Stat. 555) comments due by 3-10- Highway Program; Thrift Supervision Office 03; published 1-8-03 [FR comments due by 3-10- Practice and procedure: Last List February 24, 2003 03-00286] 03; published 1-8-03 Accountants performing [FR 03-00103] TREASURY DEPARTMENT audit services; removal, Indian Affairs Bureau and Comptroller of the Currency suspension, and Indian Reservation Community and economic debarment; comments due Public Laws Electronic Roads Program; development entities, by 3-10-03; published 1-8- Notification Service comments due by 3-10- community development 03 [FR 03-00098] (PENS) 03; published 1-8-03 projects, and other public [FR 03-00105] welfare investments; National Park Service and comments due by 3-11-03; LIST OF PUBLIC LAWS Park Roads and published 1-10-03 [FR 03- PENS is a free electronic mail Parkways Program; 00362] This is a continuing list of notification service of newly comments due by 3-10- Practice and procedure: public bills from the current enacted public laws. To 03; published 1-8-03 Accountants performing session of Congress which subscribe, go to http:// [FR 03-00102] audit services; removal, have become Federal laws. It listserv.gsa.gov/archives/ TRANSPORTATION suspension, and may be used in conjunction publaws-l.html DEPARTMENT debarment; comments due with ‘‘PLUS’’ (Public Laws Update Service) on 202–741– Surface Transportation by 3-10-03; published 1-8- 6043. This list is also Note: This service is strictly Board 03 [FR 03-00098] available online at http:// for E-mail notification of new Railroad consolidations, TREASURY DEPARTMENT www.nara.gov/fedreg/ laws. The text of laws is not mergers, and acquisitions of Customs Service plawcurr.html. available through this service. control: Organization and functions; PENS cannot respond to Temporary trackage rights field organization, ports of The text of laws is not specific inquiries sent to this exemption; comments due entry, etc.: published in the Federal address.

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