1–26–01 Friday Vol. 66 No. 18 Jan. 26, 2001 Pages 7863–8076
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1 II Federal Register / Vol. 66, No. 18 / Friday, January 26, 2001
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2 III
Contents Federal Register Vol. 66, No. 18
Friday, January 26, 2001
Army Department Grants and cooperative agreements; availability, etc.: NOTICES Biological systems; advanced modeling and simulation, Meetings: 7890–7894 Science Board, 7875–7876 Low Dose Radiation Research Program, 7894–7898 Reports and guidance documents; availability, etc.: Arts and Humanities, National Foundation Public participation policy, 7898 See National Foundation on the Arts and the Humanities Environmental Protection Agency Blind or Severely Disabled, Committee for Purchase From NOTICES People Who Are Air programs: See Committee for Purchase From People Who Are Blind State implementation plans; adequacy status for or Severely Disabled transportation conformity purposes— Georgia, 7904–7905 Centers for Disease Control and Prevention NOTICES Environmental Quality Council Grants and cooperative agreements; availability, etc.: See Council on Environmental Quality Infectious diseases; epidemiology and laboratory capacity, 7916–7919 Executive Office of the President See Council on Environmental Quality Child Support Enforcement Office See Science and Technology Policy Office RULES Child support enforcement program: Family Support Administration National Medical Support Notice; child support orders; See Child Support Enforcement Office health care coverage provisions; effective date delay, 8073–8074 Farm Credit Administration NOTICES Coast Guard Meetings; Sunshine Act, 7906 NOTICES Committees; establishment, renewal, termination, etc.: Federal Bureau of Investigation National Boating Safety Advisory Council, 7951 NOTICES Agency information collection activities: Committee for Purchase From People Who Are Blind or Proposed collection; comment request, 7943 Severely Disabled NOTICES Federal Communications Commission Procurement list; additions and deletions, 7874–7875 RULES Common carrier services: Council on Environmental Quality Telecommunications Act of 1996; implementation— NOTICES Customer proprietary network information and other Reports and guidance documents; availability, etc.: customer information; telecommunications carriers’ Agricultural biotechnology; Federal environmental use; effective date, 7865 regulations; interagency assessment, 7905 Radio stations; table of assignments: South Dakota and Wyoming, 7865–7866 Defense Department PROPOSED RULES See Army Department Common carrier services: See Navy Department Federal-State Joint Board on Universal Service— Rural universal service support mechanism; reform Employment Standards Administration plan, 7867–7872 NOTICES Radio stations; table of assignments: Minimum wages for Federal and federally-assisted Ohio and Pennsylvania, 7872–7873 construction; general wage determination decisions, Texas, 7872 7943–7944 Vermont, 7872 NOTICES Energy Department Agency information collection activities: See Federal Energy Regulatory Commission Proposed collection; comment request, 7906 NOTICES Submission for OMB review; comment request, 7906– Environmental statements; availability, etc.: 7907 Expanded civilian nuclear energy research and Common carrier services: development and isotope production missions in Wireless telecommunications services— U.S.; Fast Flux Test Facility role, 7877–7887 747-762 and 777-792 MHz bands; licenses auction; Savannah River Site, SC; interim management of nuclear minimum acceptable bids, ‘‘last and best bids,’’ materials, 7888–7890 etc., 7907–7911
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Meetings: Temporary protected status; employment authorization 2003 World Radiocommunication Advisory Conference fee requirements, etc.; effective date delay, 7863– (WRC-03) Advisory Committee, 7911 7864 Network Reliability and Interoperability Council, 7911– 7912 Indian Affairs Bureau Television broadcasting: NOTICES Cable television systems— Land acquisitions into trust: Nondiscrimination in interactive television services Lower Brule Sioux Tribe of Indians of South Dakota, distribution, 7913–7914 7925–7926 Video programming delivery; market competition Liquor and tobacco sale or distribution ordinance: status; annual assessment, 7912–7913 Big Sandy Rancheria, CA, 7926–7929
Federal Election Commission Interior Department NOTICES See Indian Affairs Bureau Meetings; Sunshine Act, 7914–7915 See Land Management Bureau See Minerals Management Service Federal Emergency Management Agency See National Park Service NOTICES Disaster and emergency areas: Internal Revenue Service Louisiana, 7915 PROPOSED RULES Texas, 7915 Procedure and administration: Pension and employee benefit trusts, and other trusts; Federal Energy Regulatory Commission classification; hearing cancellation, 7867 NOTICES NOTICES Electric rate and corporate regulation filings: Agency information collection activities: Connecticut Light & Power Co. et al., 7898–7902 Proposed collection; comment request, 7953–7959 Duke Energy Corp. et al., 7902–7904 Committees; establishment, renewal, termination, etc.: Citizen Advocacy Panels, 7959 Federal Transit Administration International Trade Commission NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Import investigations: Over-the-Road Bus Accessibility Program, 8059–8068 Oil country tubular goods from— Various countries, 7941–7942 Food and Drug Administration Stainless steel angle from— RULES Various countries, 7942–7943 Human drugs: Total parenteral nutrition; aluminum in large and small Justice Department volume parenterals; labeling requirements; effective See Federal Bureau of Investigation date delay, 7864–7865 See Immigration and Naturalization Service
Health and Human Services Department Labor Department See Centers for Disease Control and Prevention See Employment Standards Administration See Child Support Enforcement Office See Pension and Welfare Benefits Administration See Food and Drug Administration See Health Care Financing Administration Land Management Bureau See National Institutes of Health NOTICES NOTICES Meetings: Meetings: National Historic Oregon Trail Interpretive Center Genetic Testing Advisory Committee, 7915–7916 Advisory Board, 7929 Realty actions; sales, leases, etc.: Health Care Financing Administration Colorado, 7929–7930 NOTICES Agency information collection activities: Minerals Management Service Proposed collection; comment request, 7919 NOTICES Outer Continental Shelf operations: Housing and Urban Development Department Letters and notices to lessees and operators; annual list, NOTICES 7930–7932 Grants and cooperative agreements; availability, etc.: Facilities to assist homeless— National Foundation on the Arts and the Humanities Excess and surplus Federal property, 7925 NOTICES Meetings: Immigration and Naturalization Service Humanities Panel, 7944–7945 RULES Immigration: National Institutes of Health Aliens— NOTICES Parole authority; clarification; effective date delay, Agency information collection activities: 7863 Proposed collection; comment request, 7919–7920
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Meetings: Pension and Welfare Benefits Administration Dental caries; diagnosis and management throughout life; RULES consensus development conference, 7920–7921 Group health plans; access, portability, and renewability National Heart, Lung, and Blood Institute, 7921 requirements: National Institute of Arthritis and Musculoskeletal and National Medical Support Notice; child support orders; Skin Diseases, 7921–7922 health care provisions; effective date delay, 8075– National Institute of Dental and Craniofacial Research, 8076 7924 National Institute of Environmental Health Sciences, Personnel Management Office 7922–7923 RULES National Institute of Neurological Disorders and Stroke, Employment: 7923 Suitability for employment in competitive service National Institute of Nursing Research, 7921 positions and Senior Executive Service career National Institute on Drug Abuse, 7923–7924 appointments; determinations and procedures Scientific Review Center, 7924–7925 Effective date delay, 7863
National Park Service Public Health Service See Centers for Disease Control and Prevention NOTICES See Food and Drug Administration Environmental statements; availability, etc.: See National Institutes of Health Death Valley National Park, CA and NV; Timbisha Shoshone Tribal Homeland, 7933 Research and Special Programs Administration Meetings: NOTICES Cape Cod National Seashore Advisory Commission, Hazardous materials: 7933–7934 Applications; exemptions, renewals, etc., 7951–7952 Gettysburg National Military Park Advisory Commission, 7934 Science and Technology Policy Office Native American human remains and associated funerary NOTICES objects: Reports and guidance documents; availability, etc.: Detroit Institute of Arts, MI— Agricultural biotechnology; Federal environmental Bear claw necklace from James White Cloud et al., regulations; interagency assessment, 7905 chiefs of Iowa Tribe of Kansas and Nebraska, 7934–7935 Securities and Exchange Commission Ilwaco Heritage Foundation, WA— NOTICES Raven ceremonial staff from Quinault Reservation, WA, Self-regulatory organizations; proposed rule changes: 7935 National Association of Securities Dealers, Inc., 8019– Milwaukee Public Museum, WI— 8057 Inventory from ‘‘Dorathy Island,’’ AK, 7937 New York Stock Exchange, Inc., 7945–7947 Inventory from Fox Island, Rest Lake, WI, 7938 Philadelphia Stock Exchange, Inc., 7947–7949 Inventory from Morton County, ND, 7936–7937 Inventory from Okanogan Valley, WI, 7935–7936 Sentencing Commission, United States Inventory from Rudyerd Bay, AK, 7936 See United States Sentencing Commission Nebraska State Historical Society, NE— Inventory from Dawes County, NE, 7940 Social Security Administration Inventory from Platte County et al., NE, 7939–7940 NOTICES Inventory from Thurston County et al., NE, 7938–7939 Agency information collection activities: Oil and gas plans of operations; availability, etc.: Proposed collection and submission for OMB review; Big Thicket National Preserve, TX; well plugging and oil comment request, 7949–7950 and gas production equipment removal, 7941 State Department National Skill Standards Board NOTICES NOTICES Art objects; importation for exhibition: Meetings: European Masterworks: Paintings from the Collection of Manufacturing Skills Standards Council; Partnership the Art Gallery of Ontario, 7950 Organization; global economic competition; comment Rembrandt’s Portrait of an Elderly Woman, 7950 request, 8069–8071 Meetings: Shipping Coordinating Committee, 7950–7951 Navy Department Transportation Department NOTICES See Coast Guard Special area solid waste discharge standards for ships See Federal Transit Administration decommissioning between January 1, 2001 and See Research and Special Programs Administration December 31, 2005; list of ships, 7876 Treasury Department Nuclear Regulatory Commission See Internal Revenue Service NOTICES NOTICES Applications, hearings, determinations, etc.: Agency information collection activities: Southern California Edison Co., 7945 Proposed collection; comment request, 7952–7953
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United States Sentencing Commission Part V NOTICES National Skills Standards Board, 8069–8071 Sentencing guidelines and policy statements for Federal courts, 7961–8017 Part VI Department of Health and Human Services, Child Support Enforcement Office, 8073–8074 Separate Parts In This Issue Part VII Part II Department of Labor, Pension and Welfare Benefits United States Sentencing Commission, 7961–8017 Administration, 8075–8076 Part III Securities and Exchange Commission, 8019–8057 Reader Aids Part IV Consult the Reader Aids section at the end of this issue for Department of Transportation, Federal Transit phone numbers, online resources, finding aids, reminders, Administration, 8059–8068 and notice of recently enacted public laws.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
5 CFR 731...... 7863 8 CFR 103...... 7863 208...... 7863 210...... 7863 212...... 7863 235...... 7863 241...... 7863 244...... 7863 245a...... 7863 21 CFR 201...... 7864 26 CFR Proposed Rules: 301...... 7867 29 CFR 2590...... 8076 45 CFR 303...... 8074 47 CFR 64...... 7865 73...... 7865 Proposed Rules: 36...... 7867 54...... 7867 69...... 7867 73 (3 documents) ...... 7872
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Rules and Regulations Federal Register Vol. 66, No. 18
Friday, January 26, 2001
This section of the FEDERAL REGISTER DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE contains regulatory documents having general applicability and legal effect, most of which Immigration and Naturalization Service Immigration and Naturalization Service are keyed to and codified in the Code of Federal Regulations, which is published under 8 CFR Parts 103, 208, 210, 212, 235, 8 CFR Part 244 50 titles pursuant to 44 U.S.C. 1510. 241, and 245a The Code of Federal Regulations is sold by [INS No. 1972–99; A.G. Order No. 2397– [INS No. 2004–99; A.G. Order No. 2396– the Superintendent of Documents. Prices of 2001] 2001] new books are listed in the first FEDERAL REGISTER issue of each week. RIN 1115–AF53 RIN 1115–AF01
Clarification of Parole Authority; Delay Temporary Protected Status: OFFICE OF PERSONNEL of Effective Date Amendments to the Requirements for MANAGEMENT Employment Authorization Fee, and AGENCY: Immigration and Naturalization Other Technical Amendments; Delay of 5 CFR Part 731 Service, Department of Justice. Effective Date ACTION: Interim rule; delay of effective RIN 3206–AC19 date. AGENCY: Immigration and Naturalization Service, Department of Justice. SUMMARY: In accordance with the Suitability ACTION: Final rule; delay of effective memorandum of January 20, 2001, from date. AGENCY: U.S. Office of Personnel Andrew H. Card, Jr., the Assistant to the Management. President and Chief of Staff, entitled SUMMARY: In accordance with the ‘‘Regulatory Review Plan’’ memorandum of January 20, 2001, from ACTION: Final rule, extension of effective (memorandum), this rule temporarily date. Andrew H. Card, Jr., the Assistant to the delays for 60 days the effective date of President and Chief of Staff, entitled the interim rule entitled ‘‘Clarification ‘‘Regulatory Review Plan’’ SUMMARY: The Office of Personnel of Parole Authority,’’ published in the (memorandum), this rule temporarily Management (OPM) published a final Federal Register on December 28, 2000, delays for 60 days the effective date of rule on personnel suitability on at 65 FR 82254. This temporary delay the final rule entitled ‘‘Temporary December 28, 2000 in the Federal will allow the Department an Protected Status: Amendments to the Register (65 FR 82239). Based on a opportunity for further consideration of Requirements for Employment memorandum received from the this rule. Authorization Fee, and Other Technical Assistant to the President and Chief of EFFECTIVE DATE: The effective date of the Amendments,’’ published in the Federal Staff outlining the President’s plan for interim rule amending 8 CFR Parts 103, Register on December 28, 2000, at 65 FR Regulatory Review, the implementation 208, 210, 212,235, 241, and 245a 82256. This temporary delay will allow of these rules has been extended to published at 65 FR 82254, December 28, the Department an opportunity for allow adequate review. The effective 2000, is delayed until March 30, 2001. further consideration of this rule. date for implementation or these rules is FOR FURTHER INFORMATION CONTACT: EFFECTIVE DATE: The effective date of the being extended 60 days until March 30, Kevin Jones, Deputy Assistant Attorney final rule published at 65 FR 82256, 2001. General, Office of Policy Development, December 28, 2000, adopting an interim U.S. Department of Justice, Washington, DATES: Effective: March 30, 2001. rule that amended 8 CFR Part 244, is DC 20530, (202) 514–4604. delayed until March 30, 2001. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: To the FOR FURTHER INFORMATION CONTACT: Thomas DelPozzo, (724) 794–5612. extent that 5 U.S.C. 553 applies, the Kevin Jones, Deputy Assistant Attorney Office of Personnel Management. Department’s implementation of this General, Office of Policy Development, Steven R. Cohen, rule effective upon publication in the U.S. Department of Justice, Washington, Federal Register is based upon the DC 20530, (202) 514–4604. Acting Director. ‘‘good cause’’ exception. This temporary [FR Doc. 01–2476 Filed 1–24–01; 12:55 pm] delay in effective date will give SUPPLEMENTARY INFORMATION: To the BILLING CODE 6325–40–P Department officials the opportunity for extent that 5 U.S.C. 553 applies, the further review and consideration of the Department’s implementation of this earlier rule, consistent with the rule effective upon publication in the Memorandum of January 20, 2001, Federal Register is based upon the published in the Federal Register on ‘‘good cause’’ exception. This temporary January 24, 2001. delay in effective date will give Department officials the opportunity for Dated: January 23, 2001. further review and consideration of the Eric H. Holder, Jr., earlier rule, consistent with the Acting Attorney General. Memorandum of January 20, 2001, [FR Doc. 01–2411 Filed 1–25–01; 8:45 am] published in the Federal Register on BILLING CODE 4410–10–M January 24, 2001.
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Dated: January 23, 2001. SUPPLEMENTARY INFORMATION: such as chromium, copper, iron, Eric H. Holder, Jr., manganese, selenium, and zinc. I. Background Acting Attorney General. New § 201.323(d) requires the package [FR Doc. 01–2412 Filed 1–25–01; 8:45 am] On January 26, 2000, the agency insert for all LVP’s, SVP’s, and PBP’s BILLING CODE 4410–10–M published final regulations at § 201.323 used in TPN to contain a warning (21 CFR 201.323) enacting certain statement. The warning statement must requirements regarding aluminum levels be included in the ‘‘Warnings’’ section DEPARTMENT OF HEALTH AND in SVP’s, LVP’s, and PBP’s used in TPN. of the labeling. The warning must HUMAN SERVICES The new regulations added to part 201 contain the following language: (21 CFR part 201) at § 201.323(a) limit WARNING: This product contains Food and Drug Administration the aluminum content for all LVP’s used aluminum that may be toxic. Aluminum may in TPN therapy to 25 micrograms per reach toxic levels with prolonged parenteral 21 CFR Part 201 liter (µg/L). This requirement applies to administration if kidney function is all LVP’s used in TPN therapy, impaired. Premature neonates are [Docket No. 90N–0056] particularly at risk because their kidneys are including, but not limited to, parenteral immature, and they require large amounts of RIN 0910–AA74 amino acid solutions, highly calcium and phosphate solutions, which concentrated dextrose solutions, contain aluminum. Aluminum in Large and Small Volume parenteral lipid emulsions, saline and Research indicates that patients with Parenterals Used in Total Parenteral electrolyte solutions, and sterile water impaired kidney function, including Nutrition; Delay of Effective Date for injection. premature neonates, who receive parenteral µ New § 201.323(b) requires the package levels of aluminum at greater than 4 to 5 g/ AGENCY: Food and Drug Administration, kg/day accumulate aluminum at levels HHS. insert for all LVP’s used in TPN therapy associated with central nervous system and ACTION: Final rule; delay of effective to state that the drug product contains bone toxicity. Tissue loading may occur at date. no more than 25 µg/L of aluminum. This even lower rates of administration. statement must be included in the New § 201.323(e) requires applicants SUMMARY: The Food and Drug ‘‘Precautions’’ section of the labeling. Administration (FDA) is delaying until and manufacturers to use validated New § 201.323(c) requires the assay methods to determine the January 26, 2003, the effective date of a product’s maximum level of aluminum final rule published in the Federal aluminum content in parenteral drug at expiry to be stated on the immediate products used in TPN therapy. The Register of January 26, 2000 (65 FR container label of SVP’s and PBP’s used 4103), and originally scheduled to assay methods must comply with in the preparation of TPN solutions. The current good manufacturing practice become effective on January 26, 2001. statement on the immediate container The final rule amends FDA’s regulations regulations under part 211 (21 CFR part label must read as follows: ‘‘Contains 211) (see § 211.194(a)). Holders of to add certain labeling requirements for more than ll µg/L of aluminum.’’ For aluminum content in large volume approved applications for LVP’s, SVP’s, those SVP’s and PBP’s that are and PBP’s used in TPN therapy are parenterals (LVP’s), small volume lyophilized powders used in the parenterals (SVP’s), and pharmacy bulk required to submit a supplement to FDA preparation of TPN solutions, the under 21 CFR 314.70(c); see also 21 packages (PBP’s) used in total parenteral maximum level of aluminum at expiry nutrition (TPN). The rule also specifies U.S.C. 356a(b) describing the assay must be printed on the immediate method used for determining the an upper limit of aluminum permitted container label as follows: ‘‘When in LVP’s and requires applicants to aluminum content. Applicants must reconstituted in accordance with the submit the validation method used and submit to FDA validated assay methods package insert instructions, the for determining aluminum content in the release data for several batches. In concentration of aluminum will be no addition, manufacturers of parenteral parenteral drug products. FDA is more than ll µg/L.’’ The maximum delaying the effective date of this rule to drug products not subject to an level of aluminum must be stated as the approved application must make assay address concerns raised by affected highest of: (1) The highest level for the parties about the possible inability to methodology available to FDA during batches produced during the last 3 inspections (see §§ 211.160 and meet the requirements of the rule by the years; (2) the highest level for the latest current effective date. 211.180(c)). five batches, or (3) the maximum New § 201.323 applies to all human DATES: The effective date for § 201.323 historical level, but only until drug LVP’s, SVP’s, and PBP’s used in (21 CFR 201.323), added at 65 FR 4103, completion of production of the first TPN. Licensed biological products are January 26, 2000, is delayed until five batches after the effective date of not covered by this rule. January 26, 2003. Submit written the rule. The labeling requirement comments by April 26, 2001. applies to all SVP’s and PBP’s used in II. Description and Rationale for a ADDRESSES: Submit written comments the preparation of TPN solutions, Delay of the Effective Date of the Final to the Dockets Management Branch including, but not limited to: Parenteral Rule (HFA–305), Food and Drug electrolyte solutions, such as calcium Since publication of the final rule, the Administration, 5630 Fishers Lane, rm. chloride, calcium gluceptate, calcium agency has received letters and has had 1061, Rockville, MD 20857. All gluconate, magnesium sulfate, other communications with industry comments should be identified with the potassium acetate, potassium chloride, and industry trade associations in docket number found in brackets in the potassium phosphate, sodium acetate, which industry has stated the need for heading of this document. sodium lactate, and sodium phosphate; additional time to meet the FOR FURTHER INFORMATION CONTACT: multiple electrolyte additive solutions; requirements of the rule. In early June Christine F. Rogers, Center for Drug parenteral multivitamin solutions; 2000, the agency met with Evaluation and Research (HFD–7), Food single-entity parenteral vitamin representatives from industry and an and Drug Administration, 5600 Fishers solutions, such as vitamin K injection, industry association. The meeting Lane, Rockville, MD 20857, 301–594– folic acid, cyanocobalamin, and participants discussed their concerns 2041. thiamine; and trace mineral solutions, with the following issues: (1) Inadequate
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time for final rule implementation; (2) interest. In particular, the agency is Program Planning Division, (202) 418– insufficient space on immediate concerned that some products unable to 1580. container label of SVP’s to state reformulate by the existing effective SUPPLEMENTARY INFORMATION: On August aluminum levels; (3) LVP’s that will not date are medically necessary and µ 16, 1999, the Commission adopted meet the 25 g/L limit without without alternatives thus potentially amended rules, pursuant to section 222 reformulation or repackaging; (4) putting certain patients at great risk. of the Communications Act, to protect unavailability of release data required Since the agency is extending the CPNI and ensure that customers are able for submission for low production effective date of the aluminum final rule to control their personal information products; (5) labeling SVP’s and PBP’s based on the information submitted to it from unauthorized use, disclosure and with less than 25 µg/L of aluminum; (6) and the safety concerns associated with access by common carriers. A summary the need for a uniform approach to the potential unavailability of certain of these amendments was published in aluminum testing during stability medically necessary products it finds, the Federal Register (64 FR 53242, studies so that the sampling time points for good cause, that this extension of the October 1, 1999). Because the rules for the tests are the same for all effective date of the final rule does not imposed new information collection products; and (7) clarification that the require further notice and comment requirements that had not been final rule applies only to LVP, SVP, and procedures (5 U.S.C. 553(b); 21 CFR PBP drug products used in TPN and not approved by OMB, we stated that ‘‘the 10.40(e)(1)). More than 6 months have Commission will publish a document in to devices. passed since the agency placed Industry and the industry association the Federal Register announcing the supporting information in Docket No. effective dates of these rules.’’ The stated at this meeting that additional 90N–0056, and the agency has received time is necessary for moving methods information collection requirements no adverse correspondence or were approved by OMB on March 2, validation from research and comments with respect to the request to development to production, to order 2000. See OMB Nos. 3060–0715. Due to delay the extension date. In addition, an oversight, the Commission failed to and install equipment, and to reduce FDA has received several telephone aluminum levels in raw materials. They publish notice of OMB approval earlier, inquiries from other affected parties but we have treated the amendments as also noted that a number of LVP’s are requesting a delay of the effective date. in the 50 µg/L of aluminum range rather effective since March 2, 2000, as µ Therefore, the agency is now extending anticipated by our order. See than the 25 g/L range; therefore, these the effective date of the final rule. products will require repackaging or Implementation of the However, in accordance with 21 CFR Telecommunications Act of 1996, reformulation to meet the limit. 10.40(e)(1), the agency will accept FDA has included in docket number Telecommunications Carriers Use of comment on this extension for a period Customer Proprietary Network 90N–0056 a copy of the meeting of 90 days. minutes. As part of the meeting, FDA Information and Other Customer confirmed the following: (1) That Dated: January 18, 2001. Information and Implementation of the submission of historical batch release or Ann M. Witt, Non-Accounting Safeguards of section stability data after completion of Acting Associate Commissioner for Policy. 271 and 272 of the Communications Act production of several batches is [FR Doc. 01–2125 Filed 1–25–01; 8:45 am] of 1934, as Amended, CC Docket Nos. consistent with the final rule as it exists; BILLING CODE 4160–01–F 96–115 and 96–149, 14 FCC Rcd 14409, (2) that stability testing at time zero and 14509, para. 207 (1999). This annually thereafter is consistent with publication therefore satisfies the the final rule as it exists; (3) that the statement that the Commission would FEDERAL COMMUNICATIONS publish a document announcing the final rule applies only to LVP, SVP, and COMMISSION PBP drugs used in TPN; and (4) that effective date of the rules. when a PBP is divided into aliquots of 47 CFR Part 64 List of Subjects on 47 CFR Part 64 LVP’s, the LVP aliquots must meet the 25 µg/L aluminum limit required for all [CC Docket No. 96–115; FCC 99–223] Communications common carriers, LVP’s. Reporting and recordkeeping After the meeting, FDA confirmed Telecommunications Carriers’ Use of requirements, Telephone. that § 201.10(i) permits a small package Customer Proprietary Network Federal Communications Commission. Information and Other Customer exemption that applies to SVP’s with Magalie R. Salas, Information insufficient space on the immediate Secretary. container label to state aluminum levels. AGENCY: Federal Communications [FR Doc. 01–2151 Filed 1–25–01; 8:45 am] FDA is issuing this notice to delay the Commission. effective date of the rule to address the BILLING CODE 6712–01–P concerns raised by industry regarding ACTION: Final rule; announcement of effective date. the inability to meet certain FEDERAL COMMUNICATIONS requirements of the rule within 1 year. SUMMARY: The Commission’s COMMISSION III. Comment on the Extension of the amendments to its customer proprietary Effective Date network information (CPNI) rules, 47 CFR Part 73 FDA placed minutes from the meeting which contained information collection [DA 01–92, MM Docket No. 00–186, RM– described in Section II of this document requirements, became effective on 9970] in Docket No. 90N–0056 shortly after March 2, 2000. the meeting in June 2000. Those EFFECTIVE DATES: The amendments to Radio Broadcasting Services; Rapid minutes and the memoranda of §§ 64.2005, 64.2007 and 64.2009 became City, South Dakota, Gillette, Wyoming effective on March 2, 2000. associated telephone calls set forth in AGENCY: Federal Communications detail the reasons a stay of the effective FOR FURTHER INFORMATION CONTACT: Commission. date for the aluminum rule until January Jodie Donovan, Attorney Adviser, ACTION: Final rule. 26, 2003, would be in the public Common Carrier Bureau, Policy and
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SUMMARY: At the request of Bethesda SUPPLEMENTARY INFORMATION: This is a PART 73—RADIO BROADCAST Christian Broadcasting, Inc., licensee of synopsis of the Commission’s Report SERVICES Station KLMP, Rapid City, South and Order, MM Docket No. 00–186, Dakota, the Commission substitutes adopted January 3, 2001, and released 1. The authority citation for part 73 Channel 250C for 250C1 at Rapid City, January 12, 2001. The full text of this continues to read as follows: modifies the license of Station KLMP’s Commission decision is available for Authority: 47 U.S.C. 154, 303, 334 and 336. license accordingly, and substitutes inspection and copying during normal Channel 282A for vacant Channel 249A business hours in the FCC Reference 2. Section 73.202(b) the FM Table of at Gillette, Wyoming, to accommodate Center, 445 12th Street, SW, Allotments under South Dakota is the upgrade at Rapid City. See 65 FR Washington, DC. The complete text of amended by removing Channel 250C1 at 60602 (October 12, 2000). Channel 250C this decision may also be purchased Rapid City and adding Channel 250C at can be allotted at Rapid City, South from the Commission’s copy contractor, Rapid City. Dakota, at coordinates 44–19–42 and International Transcription Services, 103–50–03, at petitioner’s requested Inc., (202) 857–3800, 1231 20th Street, 3. Section 73.202(b) the FM Table of site. Channel 282A can be allotted at NW, Washington, DC 20036. Allotments under Wyoming is amended Gillette, Wyoming at coordinates 44– Provisions of the Regulatory by removing Channel 249A at Gillette 17–36 and 105–30–06 at a site 0.25 Flexibility Act of 1980 do not apply to and adding Channel 282A at Gillette. kilometers (0.25 miles) north of the this proceeding. Federal Communications Commission. community. List of Subjects in 47 CFR Part 73 John A. Karousos, DATES: Effective March 5, 2001. Radio broadcasting. Chief, Allocations Branch, Policy and Rules FOR FURTHER INFORMATION CONTACT: Part 73 of title 47 of the Code of Division, Mass Media Bureau. Victoria M. McCauley, Mass Media Federal Regulations is amended as [FR Doc. 01–2281 Filed 1–25–01; 8:45 am] Bureau, (202) 418–2180. follows: BILLING CODE 6712–01–U
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Proposed Rules Federal Register Vol. 66, No. 18
Friday, January 26, 2001
This section of the FEDERAL REGISTER the public hearing scheduled for Commission, Room 1–C804, 445 12th contains notices to the public of the proposed January 31, 2001, is canceled. Street, SW., Washington, DC 20554, or issuance of rules and regulations. The via the Internet to [email protected] and to Cynthia E. Grigsby, purpose of these notices is to give interested Edward C. Springer, OMB Desk Officer, persons an opportunity to participate in the Chief, Regulations Unit, Office of Special 10236 NEOB, 725 17th Street, NW., rule making prior to the adoption of the final Counsel (Modernization and Strategic rules. Planning). Washington, DC 20503, or via the Internet to [email protected]. Parties [FR Doc. 01–1991 Filed 1–25–01; 8:45 am] should also send three paper copies of BILLING CODE 4830–01–P DEPARTMENT OF THE TREASURY their filings to Sheryl Todd, Accounting Policy Division, Common Carrier Internal Revenue Service Bureau, Federal Communications FEDERAL COMMUNICATIONS Commission, 445 Twelfth Street, SW., 26 CFR Part 301 COMMISSION Room 5–B540, Washington, DC 20554. 47 CFR Parts 36, 54, and 69 Parties who choose to file by paper [REG–108553–00] should also submit their comments on [CC Docket No. 96–45; FCC 01–8] diskette. These diskettes should be submitted to Sheryl Todd, Accounting RIN 1545–AY09 Federal-State Joint Board on Universal Policy Division, Common Carrier Service Classification of Certain Pension and Bureau, Federal Communications Employee Benefit Trusts, and Other AGENCY: Federal Communications Commission, 445 Twelfth Street, SW., Trusts; Hearing Cancellation Commission. Room 5–B540, Washington, DC 20554. ACTION: Notice of proposed rule. In addition, commenters must send AGENCY: Internal Revenue Service (IRS), diskette copies to the Commission’s Treasury. SUMMARY: In this document, the copy contractor, International Commission seeks comment on the ACTION: Cancellation of notice of public Transcription Services, Inc., 1231 20th Recommended Decision of the Federal- hearing on proposed rulemaking. Street, NW., Washington, DC 20037. State Joint Board on Universal Service FOR FURTHER INFORMATION CONTACT: Greg SUMMARY: This document provides (Joint Board) regarding a plan for Guice, Attorney, Common Carrier notice of cancellation of a public reforming the rural universal service Bureau, Accounting Policy Division, hearing on proposed regulations relating support mechanism submitted by the (202) 418–7400. Rural Task Force. to pension and employment benefit SUPPLEMENTARY INFORMATION: This is a trusts, and other trusts. DATES: Comments are due on or before summary of the Commission’s Further February 26, 2001 and reply comments DATES: The public hearing originally Notice of Proposed Rulemaking in CC are due on or before March 12, 2001. scheduled for Wednesday, January 31, Docket No. 96–45 released on January Written comments by the public on the 2001, at 10 a.m. is canceled. 12, 2001. The full text of this document proposed and/or modified information is available for public inspection during FOR FURTHER INFORMATION CONTACT: Guy collections discussed in this Further R. Traynor of the Regulations Unit, regular business hours in the FCC Notice of Proposed Rulemaking are due Reference Center, Room CY–A257, 445 Office of Special Counsel, at (202) 622– on or before February 26, 2001. Written 7180 (not a toll-free number). Twelfth Street, SW., Washington, DC, comments must be submitted by the 20554. This FNPRM contains proposed SUPPLEMENTARY INFORMATION: A notice Office of Management and Budget information collection(s) subject to the of proposed rulemaking and notice of (OMB) on the proposed and/or modified Paperwork Reduction Act of 1995 public hearing that appeared in the information collections on or before (PRA). It has been submitted to the Federal Register on Thursday, October March 27, 2001. Office of Management and Budget 12, 2000 (65 FR 60822), announced that ADDRESSES: Parties who choose to file (OMB) for review under the PRA. OMB, a public hearing was schedule for by paper must file an original and four the general public, and other Federal January 31, 2001, at 10 a.m., in the copies of each filing. If more than one agencies are invited to comment on the auditorium of the Internal Revenue docket or rulemaking number appears in proposed information collections Building, 1111 Constitution Avenue the caption of this proceeding, contained in this proceeding. NW., Washington, DC. The subject of commenters must submit two additional the public hearing is proposed copies for each additional docket or Paperwork Reduction Act regulations under section 7701 of the rulemaking number. All filings must be The FPRM contains a proposed Internal Revenue Code. The deadline for sent to the Commission’s Secretary, information collection. The requests to speak and outlines of oral Magalie Roman Salas, Office of the Commission, as part of its continuing comments expired on January 10, 2001. Secretary, Federal Communications effort to reduce paperwork burdens, The notice of proposed rulemaking Commission, 445 12th Street, SW., invites the general public and OMB to and notice of public hearing, instructed Washington, DC 20554. In addition to comment on the information those interested in testifying at the filing comments with the Secretary, a collection(s) contained in this NPRM, as public hearing to submit a request to copy of any comments on the required by the PRA, Public Law 104– speak and an outline of the topics to be information collection(s) contained 13. Public and agency comments on the addressed. As of January 16, 2001, no herein should be submitted to Judy proposed and/or modified information one has requested to speak. Therefore, Boley, Federal Communications collections discussed in this Notice of
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Proposed Rulemaking are due on or Commission, including whether the OMB Control Number: None. before February 26, 2001. Written information shall have practical utility; Title: Federal State Joint Board on comments must be submitted by the (b) the accuracy of the Commission’s Universal Service—Proposed Plan for Office of Management and Budget burden estimates; (c) ways to enhance Reforming the Rural Universal Service (OMB) on the proposed and/or modified the quality, utility, and clarity of the Support Mechanism, CC Docket No. 96– information collections on or before information collected; and (d) ways to 45. March 27, 2001. minimize the burden of the collection of Form No.: None. Comments should address: (a) information on the respondents, Type of Review: Proposed New Whether the proposed collection of including the use of automated Collections. information is necessary for the proper collection techniques or other forms of Respondents: Business or other for- performance of the functions of the information technology. profit.
Number of Total annual Title respondents Est. time per expense burden
1. Self-Certified Disaggregation Plan ...... 873 .66 (40 minutes) ...... 576 2. Reporting of Working Loops at Cost-Zone Level ...... 873 2 hrs ...... 1746 3. State Certification Letter ...... 51 3 hrs ...... 153
Total Annual Burden: 2475. access to federal universal service Rural Task Force plan as a means of Cost to Respondents: $0. support in a way that ensures the providing stability to rural carriers over Needs and Uses: The Rural Task integrity of the universal service fund. the next several years and encouraging Force proposes that rural carriers be This is a nominal burden on rural investment in rural infrastructure? Does given a choice of three different options carriers and is balanced against the high the Rural Task Force plan provide for for disaggregating and targeting per-line degree of federal universal service universal service support that is universal service support, including benefits rural carriers would receive. sufficient for purposes of the high-cost loop support, Long Term This proposed modification would Telecommunications Act of 1996? Support (LTS), and Local Switching ensure that receipt of the federal Parties should comment on the public Support (LSS), to wire center cost zones. support is appropriate and being used in policy implications of the Rural Task Path 1 would be available to rural a manner consistent with section 254 of Force plan and/or particular aspects of carriers that do not want to target high- the Telecommunications Act of 1996. the plan, including its potential effects cost support. Path 2 would be available The goal of these proposals are to ensure on the competition and universal to rural carriers that want state that per-line high-cost universal service service goals of the 1996 Act, and commission review and approval of a support more closely associates the cost whether and how it would promote disaggregation plan. Path 3 would be of providing service and promotes consumer welfare. Parties also should available to rural carriers interested in efficient competitive entry. address how small business entities, self-certifying a method for including small incumbent local disaggregating universal service support Synopsis of NPRM exchange carriers and new entrants, will into a maximum of two cost zones per I. Introduction be affected by the Rural Task Force wire center. A disaggregation plan filed 1. In this Further Notice of Proposed plan. under Path 3 must use a rationale that Rulemaking (FNPRM), we seek 3. We also seek comment on specific is reasonably related to the cost of comment on the Recommended implementation issues identified by the providing service for each cost zone Decision of the Federal-State Joint Board within each disaggregation category on Universal Service (Joint Board) Joint Board, as well as any other issues (high-cost loop support, LSS, and LTS). regarding a plan for reforming the rural related to implementation of the Rural If these proposals are adopted, rural universal service support mechanism. Task Force Recommendation. First, we carriers that elect to disaggregate and The Joint Board sent to the Commission invite commenters to address the target per-line support would be the Rural Task Force Recommendation proposed safety valve mechanism for required to report loops at the cost-zone as a good foundation for implementing providing additional support to rural level, as opposed to reporting loops at a rural universal service plan that carriers that make meaningful post- the study area level. We believe the benefits consumers and provides a transaction investments in acquired burden associated with this proposed stable environment for rural carriers to exchanges. How should safety valve reporting requirement is appropriately invest in rural America. The Joint Board support be distributed if the total balanced with the benefits reporting also identified specific issues for the amount of support for which rural rural carriers would receive. The Rural Commission to address in implementing carriers are eligible exceeds the Task Force also proposes extension of the Rural Task Force plan. The Joint proposed cap of five percent of the high- the section 254(e) certification process Board’s Recommended Decision, which cost loop support fund? How should to rural carriers. Under this process, incorporates the Rural Task Force plan ‘‘meaningful investment’’ be defined for state regulatory commissions would as Appendix A, is attached as Appendix purposes of safety valve support? provide the Commission with annual 1 to the FNPRM. Should a carrier’s safety valve support certifications indicating that the carriers transfer to a different carrier as a result in their states receiving federal II. Issues for Comment of a subsequent transfer of exchanges? universal service support will use the 2. We seek comment on the Joint Should safety valve support be fixed in support ‘‘only for the provision, Board’s conclusion that the Rural Task competitive study areas in the same maintenance, and upgrading of facilities Force Recommendation is a good manner as other high-cost loop support, and services for which the support is foundation for implementing a rural or would such an approach unduly intended.’’ This reporting requirement universal service plan for the next dissuade investment? We invite would provide states and carriers with several years. Should we adopt the commenters to address these and any
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other issues involved in implementing a small entities of the proposals in this 254, and 403 of the Communications safety valve mechanism. FNPRM. Written public comments are Act of 1934, as amended. 4. Second, we invite commenters to requested on the IRFA. These comments 3. Description and Estimate of the address implementation of the Rural must be filed in accordance with the Number of Small Entities to Which the Task Force proposal to fix per-line filing deadlines, and should have a Notice Will Apply support in competitive study areas. The separate and distinct heading Joint Board agreed with the Rural Task designating them as responses to the 10. The RFA directs agencies to Force that the Commission should fix IRFA. The Commission will send a copy provide a description of, and, where support when a competitor begins of the FNPRM, including this IRFA, to feasible, an estimate of the number of providing services in a given study area, the Chief Counsel for Advocacy of the small entities that may be affected by but stated that ‘‘it is unclear how the Small Business Administration (SBA) in the proposed rules, if adopted. The RFA high-cost loop fund cap would account accordance with the RFA. In addition, generally defines ‘‘small entity’’ as for fixed rural carrier support.’’ We seek the FNPRM and IRFA (or summaries having the same meaning as the term comment from interested parties, thereof) will be published in the Federal ‘‘small business,’’ ‘‘small organization,’’ including the Rural Task Force, on the Register. and ‘‘small governmental jurisdiction.’’ relationship of the cap on high-cost loop In addition, the term ‘‘small business’’ 1. Need for, and Objectives of, the support to fixed per-line support in has the same meaning as the term Proposed Rules competitive study areas. We also seek ‘‘small business concern’’ under the Small Business Act, unless the comment on whether the proposed 8. The 1996 Act requires the Commission has developed one or more ability of incumbent LECs to adjust their Commission to consult with the Joint definitions that are appropriate to its fixed per-line support levels to recover Board in implementing section 254, activities. Under the Small Business costs associated with catastrophic which establishes a number of Act, a ‘‘small business concern’’ is one events should be limited by the principles for the preservation and that: (1) Is independently owned and availability of support from other advancement of universal service in a operated; (2) is not dominant in its field sources, such as insurance, Rural competitive telecommunications of operation; and (3) meets any Utilities Service loans, and federal or environment. The Commission initiated additional criteria established by the state emergency management relief. this proceeding to consider the Commenters are invited to address these SBA. Recommended Decision of the Joint 11. We have included small and any other issues involved in Board regarding a rural universal service incumbent carriers in this RFA analysis. implementing the provisions of the plan developed by the Rural Task Force. A ‘‘small business’’ under the RFA is Rural Task Force plan for support in The Rural Task Force plan is a proposal one that, inter alia, meets the pertinent competitive study areas. for the distribution of universal service small business size standard (e.g., a 5. Third, we seek comment on the support to rural carriers which is telephone communications business Rural Task Force proposal to make designed to be implemented having 1,500 or fewer employees), and above-the-cap safety net additive immediately and to remain in place over ‘‘is not dominant in its field of support available in years in which the a five-year period. The Joint Board operation.’’ The SBA’s Office of cap on high-cost loop support is found that the Rural Task Force sought Advocacy contends that, for RFA triggered to rural carriers with over 14 to achieve the goals of the 1996 Act to purposes, small incumbent carriers are percent growth in telecommunications preserve and advance universal service, not dominant in their field of operation plant in service. As proposed, would the facilitate competition in rural areas, and because any such dominance is not safety net additive mechanism enable provide a predictable level of universal ‘‘national’’ in scope. We have therefore rural carriers to recover more than 100 service support. The Joint Board stated included small incumbent carriers in percent reimbursement on their that the Rural Task Force plan would this RFA analysis, although we incremental loop investment? If so, how provide rural carriers with stability for emphasize that this RFA action has no should the mechanism be modified? We planning their investments over the next effect on the Commission’s analyses and invite commenters to address this and several years, while seeking to determinations in other, non-RFA any other safety net additive encourage competition in high-cost contexts. implementation issues. Finally, we areas through a flexible system for 12. Local Exchange Carriers. Neither invite interested parties to comment on disaggregating support to establish the the Commission nor the SBA has any other issues related to portable per-line support amount developed a definition for small implementation of the Rural Task Force available to all eligible providers of local exchange services. plan. telecommunications carriers. The Joint The closest applicable definition under III. Procedural Issues Board found that additional support the SBA rules is for telephone under the plan is ‘‘generally designed to communications companies other than A. Ex Parte Presentations provide carriers serving rural areas with radiotelephone (wireless) companies. 6. This is a permit but disclose increased incentives to invest in new According to the most recent rulemaking proceeding. Ex parte infrastructure and technologies.’’ In Telecommunications Industry Revenue presentations are permitted, except sum, the Joint Board recommended the data, 1,348 incumbent carriers reported during the Sunshine Agenda period, Rural Task Force plan to the that they were engaged in the provision provided that they are disclosed as Commission as a good foundation for of local exchange services. We do not provided in the Commission’s rules. implementing a rural universal service have data specifying the number of plan that benefits consumers and these carriers that are either dominant B. Initial Regulatory Flexibility Analysis provides a stable environment for rural in their field of operations, are not 7. As required by the Regulatory carriers to invest in rural America. independently owned and operated, or Flexibility Act (RFA), the Commission 2. Legal Basis have more than 1,500 employees, and has prepared this Initial Regulatory thus are unable at this time to estimate Flexibility Analysis (IRFA) of the 9. This rulemaking action is with greater precision the number of possible significant economic impact on supported by sections 4(i), 4(j), 201, 205, local exchange carriers that would
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qualify as small business concerns independently owned and operated or calendar years. In the context of 900 under the SBA’s definition. Of the 1,348 have more than 1,500 employees, and MHz SMR, this regulation defining incumbent carriers, 13 entities are price thus are unable at this time to estimate ‘‘small entity’’ has been approved by the cap carriers that would not be subject to with greater precision the number of SBA; approval concerning 800 MHz the rules, if adopted. Consequently, we cellular service carriers that would SMR is being sought. estimate that fewer than 1,335 providers qualify as small business concerns 18. These fees apply to SMR providers of local exchange service are small under the SBA’s definition. in the 800 MHz and 900 MHz bands that entities or small incumbent local Consequently, we estimate that there are either hold geographic area licenses or exchange carriers that may be affected fewer than 808 small cellular service have obtained extended implementation by the proposed Rural Task Force plan. carriers that may be affected by the authorizations. We do not know how 13. Competitive Access Providers. proposed Rural Task Force plan. many firms provide 800 MHz or 900 Neither the Commission nor the SBA 15. Broadband Personal MHz geographic area SMR service has developed a definition of small Communications Service (PCS). The pursuant to extended implementation entities specifically applicable to broadband PCS spectrum is divided into authorizations, nor how many of these competitive access services providers six frequency blocks designated A providers have annual revenues of no (CAPs). The closest applicable through F, and the Commission has held more than $15 million. One firm has definition under the SBA rules is for auctions for each block. The over $15 million in revenues. We telephone communications companies Commission defined ‘‘small entity’’ for assume, for purposes of this IRFA, that other than except radiotelephone Blocks C and F as an entity that has all of the remaining existing extended (wireless) companies. According to the average gross revenues of less than $40 implementation authorizations are held most recent Trends in Telephone million in the three previous calendar by small entities, as that term is defined Service data, 212 CAPs/competitive years. For Block F, an additional by the SBA. local exchange carriers and 10 other classification for ‘‘very small business’’ 19. For geographic area licenses in the local exchange carriers reported that was added and is defined as an entity 900 MHz SMR band, there are 60 who they were engaged in the provision of that, together with their affiliates, has qualified as small entities. For the 800 competitive local exchange services. We average gross revenues of not more than MHz SMR’s, 38 are small or very small do not have data specifying the number $15 million for the preceding three entities. of these carriers that are not calendar years. These regulations 20. Fixed Microwave Services. independently owned and operated, or defining ‘‘small entity’’ in the context of Microwave services include common have more than 1,500 employees, and broadband PCS auctions have been carrier, private-operational fixed, and thus are unable at this time to estimate approved by the SBA. No small broadcast auxiliary radio services. At with greater precision the number of businesses within the SBA-approved present, there are approximately 22,015 CAPs that would qualify as small definition bid successfully for licenses common carrier fixed licensees and business concerns under the SBA’s in Blocks A and B. There were 90 61,670 private operational-fixed definition. Consequently, we estimate winning bidders that qualified as small licensees and broadcast auxiliary radio that there are less than 212 small entity entities in the Block C auctions. A total licensees in the microwave services. CAPs and 10 other local exchange of 93 small and very small business The Commission has not yet defined a carriers that may be affected by the bidders won approximately 40% of the small business with respect to proposed Rural Task Force plan. 1,479 licenses for Blocks D, E, and F. microwave services. For purposes of 14. Cellular Licensees. Neither the Based on this information, we conclude this IRFA, we will utilize the SBA’s Commission nor the SBA has developed that the number of small broadband PCS definition applicable to radiotelephone a definition of small entities applicable licensees will include the 90 winning C companies—i.e., an entity with no more to cellular licensees. Therefore, the Block bidders and the 93 qualifying than 1,500 persons. We estimate, for this applicable definition of small entity is bidders in the D, E, and F blocks, for a purpose, that all of the Fixed Microwave the definition under the SBA rules total of 183 small entity PCS providers licensees (excluding broadcast auxiliary applicable to radiotelephone (wireless) as defined by the SBA and the licensees) would qualify as small companies. This provides that a small Commission’s auction rules. entities under the SBA definition for entity is a radiotelephone company 16. Rural Radiotelephone Service. The radiotelephone companies. employing no more than 1,500 persons. Commission has not adopted a 21. 39 GHz Licensees. Neither the According to the Bureau of the Census, definition of small entity specific to the Commission nor the SBA has developed only twelve radiotelephone firms from a Rural Radiotelephone Service. A a definition of small entities applicable total of 1,178 such firms which operated significant subset of the Rural to 39 GHz licensees. Therefore, the during 1992 had 1,000 or more Radiotelephone Service is the Basic applicable definition of small entity is employees. Therefore, even if all twelve Exchange Telephone Radio Systems the definition under the SBA rules of these firms were cellular telephone (BETRS). We will use the SBA’s applicable to radiotelephone (wireless) companies, nearly all cellular carriers definition applicable to radiotelephone companies. This provides that a small were small businesses under the SBA’s companies, i.e., an entity employing no entity is a radiotelephone company definition. In addition, we note that more than 1,500 persons. There are employing no more than 1,500 persons. there are 1,758 cellular licenses; approximately 1,000 licensees in the For purposes of the 39 GHz license however, a cellular licensee may own Rural Radiotelephone Service, and we auction, the Commission defined ‘‘small several licenses. In addition, according estimate that almost all of them qualify entity’’ as an entity that has average to the most recent Telecommunications as small entities under the SBA’s gross revenues of less than $40 million Industry Revenue data, 808 carriers definition. in the three previous calendar years, reported that they were engaged in the 17. Specialized Mobile Radio (SMR). and ‘‘very small entity’’ as an entity that provision of either cellular service or The Commission awards bidding credits has average gross revenues of not more Personal Communications Service (PCS) in auctions for geographic area 800 MHz that $15 million for the preceding three services, which are placed together in and 900 MHz SMR licenses to firms that calendar years. The Commission has the data. We do not have data specifying had revenues of no more than $15 granted licenses to 29 service providers the number of these carriers that are not million in each of the three previous in the 39 GHz service. We do not have
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data specifying the number of these indicating that the carriers in their states based on forward-looking economic carriers that are not independently receiving federal universal service costs, or adopting specific aspects of the owned and operated or have more than support will use the support ‘‘only for Rural Task Force Recommendation 1,500 employees, and thus are unable at the provision, maintenance, and instead of adopting the this time to estimate with greater upgrading of facilities and services for Recommendation as a whole. We invite precision the number of 39 GHz which the support is intended.’’ This comment on how any of these licensees that would qualify as small reporting requirement would provide alternatives, or any other alternatives business concerns under the SBA’s states and carriers with access to federal discussed herein, would be likely to definition. Consequently, we estimate universal service support in a way that affect small businesses. that there are no more than 29 39 GHz ensures the integrity of the universal 6. Federal Rules That May Duplicate, small business providers that may be service fund. We estimate that the Overlap, or Conflict With the Proposed affected by the proposed Rural Task annual burden hours associated with Rules Force plan. the section 254(e) certification process 27. None. would be 12 hours per carrier. This is 4. Description of Projected Reporting, IV. Comment Filing Procedures a nominal burden on rural carriers and Recordkeeping, and Other Compliance is balanced against the high degree of 28. Pursuant to §§ 1.415 and 1.419 of Requirements federal universal service benefits rural the Commission’s rules, interested 22. The Rural Task Force proposes carriers would receive. parties may file comments February 26, that rural carriers be given a choice of 2001, and reply comments March 12, three different options for disaggregating 5. Steps Taken To Minimize Significant 2001. Comments may be filed using the and targeting per-line universal service Economic Impact on Small Entities, and Commission’s Electronic Comment support, including high-cost loop Significant Alternatives Considered Filing System (ECFS) or by filing paper support, Long Term Support (LTS), and 24. The RFA requires an agency to copies. Local Switching Support (LSS), to wire describe any significant alternatives that 29. Comments filed through the ECFS center cost zones. Path 1 would be it has considered in reaching its can be sent as an electronic file via the available to rural carriers that do not proposed approach, which may include Internet to VerDate 11 47 CFR Part 54 FEDERAL COMMUNICATIONS Pennsylvania, and modification of the Reporting and recordkeeping COMMISSION license for Station WOGH (FM) to specify Burgettstown, Pennsylvania, as requirements, Telecommunications, 47 CFR Part 73 Telephone. the community of license. The [DA 01–63, MM Docket No. 98–284, RM– coordinates for Channel 278B at 47 CFR Part 69 9697] Burgettstown are 40–20–32 and 80–37– Communications common carriers, 14. Although Burgettstown is located Reporting and recordkeeping Radio Broadcasting Services; within 320 kilometers of the U.S.- requirements, Telephone. Galveston and Missouri City, TX Canadian border, concurrence of the Canadian Government is not required as AGENCY: Federal Communications Federal Communications Commission. no change in channel or transmitter site Commission. Magalie Roman Salas, has been requested. In accordance with Secretary. ACTION: Proposed rule; denial of Section 1.420(i) of the Commission’s [FR Doc. 01–2377 Filed 1–25–01; 8:45 am] petition. Rules, we shall not accept competing BILLING CODE 6712–01–P SUMMARY: This document denies a expressions of interest in the use of Petition for Rule Making filed by KQQK Channel 278B at Burgettstown. License, Inc. proposing the reallotment DATES: Comments must be filed on or FEDERAL COMMUNICATIONS of Channel 293C from Galveston to before March 5, 2001, and reply COMMISSION Missouri City, Texas, and modification comments on or before March 20, 2001. 47 CFR Part 73 of its Station KQQK–FM license to ADDRESSES: Federal Communications specify Missouri City as the community Commission, Washington, DC 20554. In of license. See 65 FR 57799, September addition to filing comments with the [DA 01–59; MM Docket No. 00–154; RM– 26, 2000. FCC, interested parties should serve the 9935] FOR FURTHER INFORMATION CONTACT: petitioner’s counsel, as follows: Allan G. Radio Broadcasting Services; Fair Robert Hayne, Mass Media Bureau, Moskowtitz, Kaye, Scholer, Fierman, Haven, VT (202) 418–2177. Hays & Handler, LLP, 901 15th Street, SUPPLEMENTARY INFORMATION: This is a NW., Suite 1100, Washington, DC AGENCY: Federal Communications synopsis of the Commission’s Report 20005. Commission. and Order in MM Docket No. 99–284, FOR FURTHER INFORMATION CONTACT: ACTION: Proposed rule; dismissal of. adopted January 10, 2001, and released Kathleen Scheuerle, Mass Media January 12, 2001. The full text of this Bureau, (202) 418–2180. SUMMARY: The Commission dismisses decision is available for inspection and SUPPLEMENTARY INFORMATION: This is a the request of Vermont Community copying during normal business hours summary of the Commission’s Notice of Radio to allot Channel 223A to Fair in the FCC Reference Information Center Proposed Rule Making, MM Docket No. Haven, VT, as the community’s first at Portals ll, CY–A257, 445 12th Street, 01–6, adopted January 3, 2001, and local aural service. See 65 FR 54833, SW, Washington, DC. The complete text released January 12, 2001. The full text September 11, 2000. Neither the of this decision may also be purchased of this Commission decision is available petitioner nor any other party filed an from the Commission’s copy contractor, for inspection and copying during expression of continuing interest in the International Transcription Service, normal business hours in the allotment. Inc., (202) 857–3805, 1231 M Street, Commission’s Reference Center, FOR FURTHER INFORMATION CONTACT: NW, Washington, DC 20036. Washington, DC. The complete text of Leslie K. Shapiro, Mass Media Bureau, Federal Communications Commission. this decision may also be purchased (202) 418–2180. John A. Karousos, from the Commission’s copy SUPPLEMENTARY INFORMATION: This is a Chief, Allocations Branch, Policy and Rules contractors, International Transcription synopsis of the Commission’s Report Division, Mass Media Bureau. Services, Inc., 1231 20th Street, NW., and Order, MM Docket No. 00–154, [FR Doc. 01–2283 Filed 1–25–01; 8:45 am] Washington, DC. 20036, (202) 857–3800, adopted January 3, 2001, and released facsimile (202) 857–3805. BILLING CODE 6712–01–U January 12, 2001. The full text of this Provisions of the Regulatory Commission decision is available for Flexibility Act of 1980 do not apply to inspection and copying during normal FEDERAL COMMUNICATIONS this proceeding. business hours in the FCC Reference COMMISSION Members of the public should note Center (Room 239), 445 12th Street, SW, that from the time a Notice of Proposed Washington, DC. The complete text of 47 CFR Part 73 Rule Making is issued until the matter this decision may also be purchased is no longer subject to Commission [DA No. 01–93, MM Docket No. 01–6, RM– consideration or court review, all ex from the Commission’s copy contractor, 10009] International Transcription Services, parte contacts are prohibited in Inc., (202) 857–3800, 1231 20th Street, Radio Broadcasting Services; Commission proceedings, such as this NW, Washington, DC 20036. Steubenville, OH and Burgettstown, PA one, which involve channel allotments. See 47 CFR 1.1204(b) for rules List of Subjects in 47 CFR part 73 AGENCY: Federal Communications governing permissible ex parte contact. Radio broadcasting. Commission. For information regarding proper filing procedures for comments, see 47 Federal Communications Commission. ACTION: Proposed rule. CFR 1.415 and 1.420. John A. Karousos, SUMMARY: This document requests Chief, Allocations Branch, Policy and Rules comments on a petition filed on behalf List of Subjects in 47 CFR Part 73 Division, Mass Media Bureau. of Keymarket Licenses, LLC, requesting Radio broadcasting [FR Doc. 01–1984 Filed 1–25–01; 8:45 am] the reallotment of Channel 278B from For the reasons discussed in the BILLING CODE 6712–01–P Steubenville, Ohio, to Burgettstown, preamble, the Federal Communications VerDate 11 Commission proposes to amend 47 CFR Authority: 47 U.S.C. 154, 303, 334 and 336. Federal Communications Commission. part 73 as follows: John A. Karousos, § 73.202 [Amended] Chief, Allocations Branch, Policy and Rules PART 73—[RADIO BROADCAST 2. Section 73.202(b), the Table of FM Division, Mass Media Bureau. SERVICES] Allotments under Pennsylvania, is [FR Doc. 01–2282 Filed 1–25–01; 8:45 am] 1. The authority citation for Part 73 amended by adding Burgettstown, BILLING CODE 6712–01–U continues to read as follows: Channel 278B. VerDate 11 Notices Federal Register Vol. 66, No. 18 Friday, January 26, 2001 This section of the FEDERAL REGISTER The nonprofit agency in Utica, New and Albany, it is unlikely that contains documents other than rules or York, was concerned that the loss of the employees with disabilities at the Utica proposed rules that are applicable to the contract would force the current facility are being used to provide public. Notices of hearings and investigations, contractor to lay off people who are services in Albany. Any employees with committee meetings, agency decisions and severely disabled and that this was disabilities at the Government facility in rulings, delegations of authority, filing of petitions and applications and agency counter to the purpose of the JWOD Albany would be offered employment statements of organization and functions are Program. Counsel for the current by the nonprofit agency. The commenter examples of documents appearing in this contractor made these same points, indicated that such offers have been section. noting also that the contractor had been made. Consequently, the Committee given an award by a local disability does not believe that addition of this organization for its hiring of people with laundry service to the Procurement List COMMITTEE FOR PURCHASE FROM disabilities. This commenter claimed is likely to cause people with PEOPLE WHO ARE BLIND OR that the original estimated price for the disabilities to lose their jobs. SEVERELY DISABLED laundry service was based on an Because the contract price for the last unrealistically low estimate of the full year of laundry service is lower than Procurement List; Additions Government’s service requirement. The the previous year, the percentage of the AGENCY: Committee for Purchase From commenter also claimed that the current contractor’s total sales which People Who Are Blind or Severely contractor had become dependent on this laundry service represents is lower Disabled the revenue from this Government than the two commenters claimed. This ACTION: Additions to the Procurement service after providing it for five years. lower percentage is at a level which the List. The commenter also indicated the Committee normally considers not to assertion that the nonprofit agency constitute severe adverse impact on a SUMMARY: This action adds to the would provide inferior service at a contractor. As indicated above, the Procurement List commodities and higher price was based on the belief that Committee believes that had the current services to be furnished by nonprofit the nonprofit agency is new to the contractor continued to provide service agencies employing persons who are laundry business. for this declining requirement, this blind or have other severe disabilities. The nonprofit agency that would be percentage would have declined further. EFFECTIVE DATE: February 26, 2001. performing the service currently The Committee looks at the length of ADDRESSES: Committee for Purchase operates a laundry service under a State continuous service when assessing the From People Who Are Blind or Severely program for nonprofit agencies dependency of a contractor on a Disabled, Jefferson Plaza 2, Suite 10800, employing people with disabilities. The contract for a service. The current 1421 Jefferson Davis Highway, Committee has found the nonprofit contractor’s five years of providing this Arlington, Virginia 22202–3259. agency to be capable of performing the service have not been continuous, as the FOR FURTHER INFORMATION CONTACT: service being added to the Procurement contractor did not provide the service Louis R. Bartalot (703) 603–7740. List, based on an assessment by the between April 15, 1992 and December 1, SUPPLEMENTARY INFORMATION: On central nonprofit agency, in which the 1998. Accordingly, the Committee does October 13, November 13, November 24 Government contracting activity not believe the contractor could have and December 1, 2000, the Committee concurred, and review by its own staff. become seriously dependent on for Purchase From People Who Are The Government’s need for laundry revenues from this laundry service. For Blind or Severely Disabled published services at this location is declining, as this reason, and taking into account the notices (65 FR 60903, 67714, 70549 and shown by the fact that the contract price impact considerations discussed in the 75241) of proposed additions to the for the last full year declined last paragraph, the Committee has Procurement List. considerably from the previous year. concluded that addition of this laundry This decline is expected to continue, service to the Procurement List is not Additions although not as much as the original likely to have a severe adverse impact The following comments pertain to estimated price, which has been revised on the current contractor. Laundry Service, Stratton Medical upward, would indicate. The revised The following material pertains to all Center, 113 Holland Avenue, Albany, estimate, which the Committee is of the items being added to the New York. adopting as the fair market price for this Procurement List. Comments were received from a service, also reflects supply economies After consideration of the material Member of Congress, a nonprofit agency available to the nonprofit agency presented to it concerning capability of and from counsel for the current because of its ability to use Government qualified nonprofit agencies to provide contractor. The Member claimed that supply sources when providing this the commodity and services and impact the addition of this service to the service under the Committee’s program. of the additions on the current or most Procurement List would reduce the Laundry service at this location uses recent contractors, the Committee has current contractor’s revenue the Government’s laundry facility in determined that the commodities and substantially and could cause people Albany, NY. The current contractor has services listed below are suitable for with disabilities employed by the its own facility in Utica, NY, which is procurement by the Federal Government contractor to lose their jobs. The also the location of the disability agency under 41 U.S.C. 46–48c and 41 CFR 51– Member also indicated that the which honored the contractor for its 2.4. Government might pay higher prices for hiring of people with disabilities. I certify that the following action will inferior laundry service. Because of the distance between Utica not have a significant impact on a VerDate 11 substantial number of small entities. COMMITTEE FOR PURCHASE FROM they are providing additional The major factors considered for this PEOPLE WHO ARE BLIND OR information. certification were: SEVERELY DISABLED The following commodities and service have been proposed for addition 1. The action will not result in any Procurement List; Proposed Additions to Procurement List for production by additional reporting, recordkeeping or the nonprofit agencies listed: other compliance requirements for small AGENCY: Committee for Purchase From entities other than the small People Who Are Blind or Severely Commodities organizations that will furnish the Disabled Folder, Classification commodities and services to the ACTION: Proposed Additions to 7530–00–NIB–0548 Government. Procurement List. 7530–00–NIB–0549 7530–00–NIB–0550 2. The action will not have a severe 7530–00–NIB–0551 SUMMARY: The Committee is proposing economic impact on current contractors 7530–00–NIB–0552 to add to the Procurement List for the commodities and services. 7530–00–NIB–0555 commodities and a service to be 7530–00–NIB–0556 3. The action will result in furnished by nonprofit agencies 7530–00–NIB–0557 authorizing small entities to furnish the employing persons who are blind or NPA: The Clovernook Center for the Blind, commodities and services to the have other severe disabilities. Cincinnati, Ohio Government. Comments Must be Received on or Hose, Fire Before: February 26, 2001. 4210–00–777–1591 4. There are no known regulatory 4210–00–777–1592 alternatives which would accomplish ADDRESSES: Committee for Purchase 4210–00–892–5494 the objectives of the Javits-Wagner- From People Who Are Blind or Severely 4210–01–037–7031 O’Day Act (41 U.S.C. 46–48c) in Disabled, Jefferson Plaza 2, Suite 10800, 4210–01–039–4855 connection with the commodities and 1421 Jefferson Davis Highway, 4210–01–165–6597 services being added to the Procurement Arlington, Virginia 22202–3259. 4210–01–166–8122 List. FOR FURTHER INFORMATION CONTACT: 4210–01–167–1061 Louis R. Bartalot (703) 603–7740. NPA: The Oklahoma League for the Blind, Accordingly, the following Oklahoma City, Oklahoma commodity and services are hereby SUPPLEMENTARY INFORMATION: This Plaques added to the Procurement List: notice is published pursuant to 41 9905–01–357–9983 U.S.C. 47(a)(2) and 41 CFR 51–2.3. Its 9905–01–357–9984 Commodities purpose is to provide interested persons 9905–01–357–9985 Line, Multi-Loop an opportunity to submit comments on 9905–01–357–9986 1670–01–062–6301 the possible impact of the proposed 9905–01–408–2270 1670–01–062–6303 actions. 9905–01–408–6049 1670–01–062–6306 9905–01–408–6051 If the Committee approves the NPA: Delaware Division for the Visually 1670–01–062–6309 proposed additions, all entities of the Impaired, New Castle, Delaware 1670–01–062–6312 Federal Government (except as 1670–01–062–6313 otherwise indicated) will be required to Service 1670–01–064–4451 procure the commodities and service Administrative Services 1670–01–064–4452 listed below from nonprofit agencies U.S. Army Space and Missile Defense 1670–01–064–4454 employing persons who are blind or Command (SMDC), Huntsville, Alabama 1670–01–107–7652 NPA: Huntsville Rehabilitation Foundation, have other severe disabilities. I certify Huntsville, Alabama Services that the following action will not have Janitorial/Custodial, Mooers Border Station, a significant impact on a substantial G. John Heyer, Mooers, New York number of small entities. The major General Counsel. Janitorial/Custodial, Redden U.S. Federal factors considered for this certification [FR Doc. 01–2418 Filed 1–25–01; 8:45 am] Courthouse, Fleet Management Center, were: BILLING CODE 6353–01–P 310 West 6th Street, Medford, Oregon 1. The action will not result in any Janitorial/Custodial, United States Coast additional reporting, recordkeeping or Guard Air Station Borinquen, Aguadilla, other compliance requirements for small DEPARTMENT OF DEFENSE Puerto Rico, entities other than the small Janitorial/Grounds Maintenance, Nininger organizations that will furnish the Department of the Army U.S. Army Reserve Center, Fort commodities and service to the Lauderdale, Florida Government. Army Science Board; Notice of Open Laundry Service, Stratton Medical Center, 2. The action will result in Meeting 113 Holland Avenue, Albany, New York authorizing small entities to furnish the In accordance with section 10(a)(2) of commodities and service to the This action does not affect current the Federal Advisory Committee Act Government. (Pub. L. 92–463), announcement is contracts awarded prior to the effective 3. There are no known regulatory date of this addition or options that may made of the following Committee alternatives which would accomplish Meeting: be exercised under those contracts. the objectives of the Javits-Wagner- Name of Committee: Army Science Board G. John Heyer, O’Day Act (41 U.S.C. 46–48c) in connection with the commodities and (ASB). General Counsel. Date of Meeting: 26 January 2001. service proposed for addition to the [FR Doc. 01–2417 Filed 1–25–01; 8:45 am] Time of Meeting: 0800–1500. Procurement List. Comments on this Place of Meeting: Fort Belvoir, Virginia. BILLING CODE 6353–01–P certification are invited. Commenters Agenda: The Army Science Board’s (ASB) should identify the statement(s) Special Summer Study on ‘‘Manpower and underlying the certification on which Personnel for the Soldier Systems in the VerDate 11 Objective Force’’ will have an introductory DEPARTMENT OF DEFENSE defined in Regulation 5 of ANNEX V meeting to discuss their Terms of Reference, unless such discharge is in compliance Jan 2001 (Draft) and plans for future effort. Department of the Navy with the applicable exceptions listed in A copy of the agenda is provided below: Regulation 6 of ANNEX V which states These meetings will be open to the public. Special Area Solid Waste Discharge that the prohibition on the discharge of Any interested person may attend, appear Standards for Ships Decommissioning garbage in special areas ‘‘* * * shall not before, or file statements with the committee Between January 1, 2001, and at the time and in the manner permitted by December 31, 2005 apply to: the committee. For further information, (a) the disposal of garbage from a ship please contact, Ms. Che´rie Smith (703) 806– AGENCY: Department of Defense. 4237. necessary for the purpose of securing ACTION: Notice. the safety of a ship and those on board Agenda Topics SUMMARY: Section 324 of the National or saving life at sea, or Welcome—0800–0815 Defense Authorization Act for Fiscal (b) the escape of garbage resulting Soldier Systems 2001 Main Study—0815– 0900 Year 1997, Public Law 104–201, from damage to a ship or its equipment Future Soldiers a View—0900–0945 requires the Secretary of the Navy to provided all reasonable precautions Manpower & Personnel Special Study— prescribe and publish in the Federal have been taken before and after the 0945–1000 Register standards to ensure that ships occurrence of the damage for the R&D Program 2001—1000–1045 decommissioning between January 1, purpose of preventing or minimizing the Break—1045–1100 2001, and December 31, 2005, are to the escape; * * *’’ MANPRINT and FCS—1100–1130 maximum extent practicable without On the unusual occasions in which a USAR Prospective—1130–1215 impairing the operations or operational Working Lunch—1215–1300 capabilities of the ship, operated in a discharge may be necessary in a special Team Discussion (TOR, Organization, Next manner that is consistent with the area in accordance with the exceptions Agenda)—1300–1500 special area requirements of Regulation noted above, surface ships shall use all available means to cause unprocessed Wayne Joyner, 5 of Annex V to The International Convention for the Prevention of garbage to sink as rapidly as possible. Program Support Specialist, Army Science The commanding officer shall note the Board. Pollution from Ships (MARPOL) and provide a list of the applicable ships. details of such a discharge (date of [FR Doc. 01–2390 Filed 1–25–01; 8:45 am] FOR FURTHER INFORMATION CONTACT: Mr. discharge, special area involved, and BILLING CODE 3710–08–M Louis Maiuri, Office of the Chief of nature and amount of discharge) in the Naval Operations Environmental ship’s deck log. Upon completion of operations in a special area in which a DEPARTMENT OF DEFENSE Protection, Safety and Occupational Health Division, Crystal Plaza #4, Room garbage discharge was necessary, ships Department of the Army 654, 2211 South Clark Place, Arlington, shall report all discharges other than Virginia, 22244–5108, telephone food waste, pulped garbage and Army Science Board; Notice of Open number (703) 602–2602. shredded and bagged metal and glass to Meeting SUPPLEMENTARY INFORMATION: MARPOL CNO (N45), regarding: as amended by the MARPOL Protocol of (a) Date of discharge. In accordance with section 10(a)(2) of 1978, protects the ocean environment by (b) Special area involved. the Federal Advisory Committee Act prohibiting some discharges altogether, (Pub. L. 92–463), announcement is restricting other discharges to particular (c) Nature and amount of discharge made of the following Committee distances from land, and establishing (estimated pounds of unshredded metal Meeting: ‘‘special areas’’ within which additional and glass; unpulped wood, paper and Name of Committee: Army Science Board discharge limitations apply. One of the cardboard; ceramic; or other non-food (ASB). discharges specified for restriction material). Date of Meeting: 29–30 January 2001. under MARPOL Annex V is solid waste. These standards apply to the Time of Meeting: 0830–1700, 29 January Ships that are decommissioning following ships: 2001; 0900–1600, 30 Janaury 2001. between January 1, 2001, and December Place: 9th floor Conf. Room, Presidential 31, 2005, and do not have Navy solid USS CONSTELLATION (CV 64) Towers, Crystal City Virginia. waste equipment installed, will, to the Agenda: The Army Science Board’s (ASB) USS HEWITT (DD 966) panel will conduct a study on ‘‘Knowledge maximum extent practicable without USS AUSTIN (LPD 4) impairing the operations or operational Based Management and Information USS OGDEN (LPD 5) Reliability’’ to exam innovative ways of capabilities of these ships, be operated addressing technology issues that have the in a manner that is consistent with the USS WADSWORTH (FFG 9) potential to ‘‘weigh down’’ our future special area requirements of Regulation USS GEORGE PHILIP (FFG 12) Warfighters with massive amounts of data. 5 of Annex V of MARPOL in accordance The 2-day meeting will be open to the public. with the following standards: USS SAMUEL E. MORISON (FFG 13) Any interested person may attend, appear Prior to entering a special area, USS SIDES (FFG 14) before, or file statements with the committee surface ships will identify essential USS ESTOCIN (FFG 15) at the time and in the manner permitted by logistics requirements needed to the committee. For further information, Dated: January 11, 2001. please contact Mr. Randy Woodson, Office of facilitate the offload and disposal of the DA DCSINT, 703–604–2462. shipboard garbage at either port J.L. Roth, reception facilities or supply ships, Lieutenant Commander, Judge Advocate Wayne Joyner, which have the capacity to receive and General’s Corps, U.S. Navy, Federal Register Program Support Specialist, Army Science store other ship’s garbage for transfer Liaison Officer. Board. and disposal ashore. [FR Doc. 01–2392 Filed 1–25–01; 8:45 am] [FR Doc. 01–2391 Filed 1–25–01; 8:45 am] Surface ships may not discharge BILLING CODE 3810–FF–P BILLING CODE 3710–08–M unprocessed garbage in the special areas VerDate 11 DEPARTMENT OF ENERGY plutonium-238 from the irradiated impact statement concerning the targets. production of plutonium-238 in support Record of Decision for the The Department expects its current of U.S. space missions. Following the Programmatic Environmental Impact nuclear infrastructure to satisfy short- public scoping process, which was Statement for Accomplishing term requirements for isotopes needed extended until January 4, 1999, the Expanded Civilian Nuclear Energy in medicine, industry, and research, and Department began preparation of the Research and Development and nuclear energy research for civilian Environmental Impact Statement for the Isotope Production Missions in the applications. If significantly larger Proposed Production of Plutonium-238 United States, Including the Role of the amounts of isotopes are required in the for Use in Advanced Radioisotope Fast Flux Test Facility future, others would need to respond to Power Systems for Future Space these requirements. To explore a Missions (Plutonium-238 Production AGENCY: Department of Energy (the potential option to address some future EIS). Restarting FFTF was dismissed as Department). research infrastructure needs, DOE a reasonable alternative for that ACTION: Record of Decision (ROD). intends to work over the next two years proposed EIS because it would not be SUMMARY: Under the authority of the to establish a conceptual design for an cost effective to restart the reactor for Atomic Energy Act of 1954, the Advanced Accelerator Applications the sole purpose of producing Department’s missions include: (1) (AAA) facility, which could be modified plutonium-238. On August 18, 1999, the Department Producing isotopes for research and to produce some proton-enriched announced that it would prepare the NI applications in medicine and industry; isotopes. The new accelerator(s) PEIS—a programmatic NEPA document (2) meeting nuclear material needs of (Alternative 3) and new research reactor that would evaluate the environmental other Federal agencies; and (3) (Alternative 4) described in the NI PEIS impacts that could result from conducting research and development will not be constructed. The Fast Flux enhancement of the Department’s activities for civilian use of nuclear Test Facility (FFTF) in Washington will be permanently deactivated. If DOE nuclear infrastructure. Restart of FFTF power. The Department has evaluated was included as a reasonable alternative potential enhancements to its nuclear proposes specific enhancements of existing facilities or deployment of the in the NI PEIS for several missions, infrastructure that would allow it to including the production of plutonium- meet these responsibilities over AAA facility, further NEPA review would be conducted. 238. Preparation of the Plutonium-238 approximately the next three to four Production EIS was terminated as a decades. As part of this evaluation, the ADDRESSES: The Final NI PEIS, including the NI PEIS Summary, and separate NEPA review and its scope was Department prepared the Programmatic incorporated in the NI PEIS. Environmental Impact Statement for this ROD are available on the Accomplishing Expanded Civilian Department’s National Environmental Purpose and Need for Agency Action Nuclear Energy Research and Policy Act (NEPA) website at http:// The Department’s obligations under Development and Isotope Production tis.eh.doe.gov/nepa/docs/docs.htm. The the Atomic Energy Act of 1954 require Missions in the United States, Including ROD is also available at web address it to operate and maintain nuclear the Role of the Fast Flux Test Facility http://www.nuclear.gov. Requests for facilities such as reactors, accelerators, (Nuclear Infrastructure or NI PEIS) copies of the NI PEIS, the NI PEIS and various nuclear support facilities. pursuant to the National Environmental Summary, or this ROD should be mailed The shutdown of aging facilities Policy Act (NEPA). The NI PEIS to Colette E. Brown, Document Manager, coupled with projected increases in evaluates environmental impacts that Office of Space and Defense Power demand for nuclear services and could result from implementation of Systems (NE–50), Office of Nuclear products necessitated an assessment of alternatives and options that were Energy, Science and Technology, U.S. the Department’s nuclear infrastructure considered for enhancement of the Department of Energy, 19901 needs. Department’s nuclear infrastructure. Germantown Road, Germantown, MD Over the past 50 years, the use of The Final NI PEIS (DOE/EIS–0310) was 20874, Attention: NI PEIS. Requests may isotopes in medicine and industry has issued on December 15, 2000 (65 FR also be electronically mailed to Internet increased markedly. Currently, over 12 78484). address [email protected] or million nuclear medical procedures are After considering the environmental faxed to Ms. Brown at 301–903–1510. performed each year in the United impacts, costs, public comments, FOR FURTHER INFORMATION CONTACT: For States. Expert medical panels have nonproliferation issues, and information on the nuclear projected significant increases in the use programmatic factors, the Department infrastructure missions, alternatives, or of nuclear diagnostic, therapeutic, and has decided to implement the Preferred environmental impacts, contact Colette research medicines during the early Alternative identified in Section 2.8 of E. Brown at the addresses given in the decades of the twenty-first century. As the Final NI PEIS (Alternative 2, Option previous paragraph. For general discussed in the NI PEIS, Chapter 1, 7). Domestic production of plutonium- information on the Department’s NEPA Section 1.2.1, an Expert Panel convened 238 will be reestablished to support U.S. process, please contact Carol Borgstrom, by the Department in 1998 concluded space exploration. For this purpose, the Director, Office of NEPA Policy and that the growth in demand for Advanced Test Reactor (ATR) in Idaho Compliance (EH–42), U.S. Department diagnostic and therapeutic isotopes and the High Flux Isotope Reactor of Energy, 1000 Independence Avenue, would likely exceed seven percent per (HFIR) at the Oak Ridge National SW., Washington, DC 20585; call 202– year over the next 20 years. The Panel Laboratory (ORNL) in Tennessee will be 586–4600; or leave a message at the toll- also concluded that the cost and used to irradiate neptunium-237 targets. free telephone number, 800–472–2756. availability of medical isotopes would Plutonium-238 production will not SUPPLEMENTARY INFORMATION: constrain progress in various areas of interfere with existing primary missions medical research. The Expert Panel’s at ATR and HFIR. The Radiochemical I. Background findings were adopted by the Nuclear Engineering Development Center On October 5, 1998, the Department Energy Research Advisory Committee (REDC) at ORNL will be used for published a Notice of Intent (63 FR (NERAC), which further concluded that fabricating targets and isolating 53398) to prepare an environmental the current domestic nuclear VerDate 11 infrastructure is not adequate to ensure started in fiscal year 1999, and the inclusion of information about cleanup a continued supply of medical isotopes Nuclear Energy Plant Optimization and environmental contamination at in the face of projected increases in Program was started in fiscal year 2000. Hanford, nonproliferation issues demand. Approximately one-half of the The Nuclear Energy Research Initiative including the proposed import of Department’s current isotope sponsors research and development German SNR–300 fuel, transition of production capability is being used. focused on the removal of barriers to the FFTF stewardship after it is deactivated, Projections of increased demands for expanded use of nuclear power. Nuclear the restart of FFTF and associated medical isotopes indicate that the Energy Plant Optimization is a cost- budget constraints, and the Tri Party Department’s production capability will shared program with private industry Agreement at Hanford. This information be fully utilized within a decade or less that sponsors research and development was included in the Draft NI PEIS and/ in the absence of enhancements to the intended to ensure that current nuclear or the separate NI Nonproliferation existing nuclear infrastructure. plants can continue to provide electric Impact Assessment report. The Department and its predecessor power up to and beyond their initial 40- Availability of the Draft NI PEIS was agencies have supplied plutonium-238 year license period. In June 2000, the announced in the Federal Register on for U.S. space programs for more than NERAC Subcommittee on Long-Term July 28, 2000 (65 FR 46443). The public three decades. The National Aeronautics Planning for Nuclear Energy Research comment period extended through and Space Administration (NASA) uses developed guidelines for research and September 18, 2000. Seven public plutonium-238 as a source of electric development in the areas of materials hearings were held during late August power and heat for deep space missions. research, nuclear fuel research, and and early September 2000 at the same Nuclear reactors and chemical advanced reactor development. One of locations as the scoping meetings. processing facilities at the Department’s the Department’s objectives is to Pursuant to the Council on Savannah River Site (SRS) historically provide and maintain a nuclear Environmental Quality regulations (40 produced plutonium-238 for the infrastructure that supports civilian CFR 1505.1(e)), agencies are encouraged Nation’s space programs. However, all nuclear energy research and to make ancillary decision documents nuclear reactors at SRS have been shut development. available to the public before a decision down. Chemical processing facilities in In summary, the Department’s is made. The associated cost report and F-Canyon and H-Canyon at SRS are activities regarding medical isotope nonproliferation report were made scheduled for shutdown following supplies, support of U.S. space available to the public on August 24, completion of their current mission to missions, and research and 2000, and September 8, 2000, prepare Cold War legacy nuclear development in the area of civilian respectively. The Department mailed materials and some spent nuclear fuel nuclear technology will require an these documents to approximately 730 for disposition. In 1992, the Department appropriate nuclear infrastructure. In interested parties, and the reports were signed a five-year contract to purchase reaching its decision concerning a made available immediately upon up to 10 kilograms (22 pounds) of nuclear infrastructure appropriate for release on the Office of Nuclear Energy, plutonium-238 per year from Russia— the next 35 years, the Department Science and Technology website (http:/ not to exceed 40 kilograms (88 pounds) assigned equal priority to all of these /www.nuclear.gov) and in public total. In 1997, a five-year contract responsibilities. reading rooms. extension was negotiated. The extension NEPA Process will expire in 2002. Thus far, Over 6,000 comments were received approximately 9 kilograms (20 pounds) On September 15, 1999, the during the comment period for the Draft of plutonium-238 have been purchased Department published a Notice of Intent NI PEIS. While a wide variety of from Russia under this contract. in the Federal Register (64 FR 50064) to comments was received, the dominant Plutonium-238 is purchased from prepare the NI PEIS. The 45-day scoping concerns focused on the: (1) Purpose Russia on an as-needed basis because it period for the NI PEIS ended on October and need for enhancements to the is costly to remove the decay products 31, 1999. Scoping meetings were held in Department’s nuclear infrastructure; (2) that result from an extended period of locations central to potentially affected impact of certain alternatives on the storage. As discussed in detail in areas (Oak Ridge, Tennessee; Idaho cleanup efforts at candidate sites and Section 1.2.2 of the NI PEIS, updated Falls, Idaho; and Richland, compliance with the existing cleanup mission guidance from NASA indicates Washington), as well as areas in which agreements; (3) management and that the U.S. inventory of plutonium- the alternatives would have little or no disposition of nuclear waste and spent 238 reserved for U.S. space missions is environmental impact, but in which nuclear fuel resulting from likely to be depleted by 2005. The there was public interest (Hood River, implementation of the alternatives; (4) Department must decide how to Oregon; Portland, Oregon; Seattle, costs and cost benefits of the continue to meet NASA’s need for Washington; and Washington, D.C.). alternatives; (5) potential effects on plutonium-238 beyond that point. The Department received nuclear weapons nonproliferation; (6) In November 1997, the President’s approximately 7,000 scoping comments. fairness and effectiveness of the public Committee of Advisors on Science and As a result of comments received during involvement and decision process; (7) Technology reported that restoring a the scoping period, a new alternative impacts on human health and water viable nuclear energy option is (Permanently Deactivate FFTF with No quality; (8) safety of reactor operations; important to the Nation’s ability to meet New Missions) was added to the (9) use of plutonium-238 in space its expanding energy requirements (See alternatives evaluated in the NI PEIS, applications; and (10) restart or NI PEIS, Chapter 1, Section 1.2.3). The the Fluorinel Dissolution Process deactivation of the Fast Flux Text Committee recommended that the Facility (FDPF) in Idaho was added as Facility (FFTF). Comments were Department reinvigorate its nuclear a processing facility for the processing considered by the Department and energy research and development of plutonium-238, and a commercial responses were included in Volume 3 of activities to address potential barriers to light water reactor at a generic site was the Final NI PEIS. The NI PEIS was the expanded use of nuclear power. In added as a candidate irradiation facility revised in response to comments response to this recommendation, the for the production of plutonium-238. wherever appropriate. The Notice of Nuclear Energy Research Initiative was Other comments included requests for Availability for the Final NI PEIS was VerDate 11 published in the Federal Register on international), medical isotope research would have been the primary December 15, 2000 (65 FR 78484). applications and research, space nuclear missions at those facilities. power, and fusion research programs. The Department also considered II. Facility and Site Options FFTF was placed in standby condition construction of a new research reactor at Candidate Irradiation Facilities in 1993 because of a lack of an unspecified DOE site as a candidate irradiation facility. A preconceptual Three nuclear reactors were included economically viable missions. Reactor design was developed for a new in the environmental evaluation as fuel has been removed. The Main Heat research reactor that would: (1) Produce candidate irradiation facilities: ATR at Transport System is being operated at ° ° medical and industrial isotopes, (2) Idaho National Engineering and approximately 200 C (400 F) to keep produce up to 5 kilograms (11 pounds) Environmental Laboratory (INEEL); sodium coolant in the reactor liquefied of plutonium-238 per year, and (3) HFIR at ORNL; and FFTF at the Hanford and circulating. Restarting FFTF would support civilian nuclear energy research Site. Environmental impacts were also require mechanical equipment upgrades and development. The new research estimated for a generic CLWR, one or and replacement of outdated control and computer systems. FFTF initially reactor would have been fueled by low- two new accelerators at an unspecified enriched uranium (uranium fuel Departmental site, and a new research would have operated with mixed-oxide (uranium-plutonium) fuel, followed by containing less than 20 percent reactor at an unspecified Departmental uranium-235). This preconceptual site. operation with uranium fuel. Had FFTF been selected as an irradiation facility, design included the basic elements of ATR is a light-water-cooled the research reactor facility sufficient for and -moderated nuclear reactor with a production of medical isotopes and civilian nuclear technology research the environmental analysis. Had a new design thermal power of 250 megawatts. research reactor been selected for Special features of ATR include high would have been the primary missions at FFTF. implementation, site-specific NEPA neutron flux levels and the ability to reviews would have been conducted vary power to fit different experiment A CLWR was evaluated as an irradiation facility for plutonium-238 prior to site selection. Production of needs in different test positions. ATR isotopes and civilian nuclear energy operates with highly enriched uranium production. No specific light water reactor was selected. Thus, typical research would have been the primary fuel (uranium fuel containing more than missions at the new research reactor. 20 percent uranium-235). The primary characteristics of CLWRs were assumed mission at ATR is to support naval for the environmental analysis. A Candidate Target Fabrication and reactor research and development. The typical pressurized water reactor core Postirradiation Processing Facilities Department proposes to use ATR for consists of 170 to 200 fuel assemblies Processing facilities at three isotope production and civilian nuclear arranged in the reactor vessel in an Departmental sites were included in the energy research missions on a approximately cylindrical pattern. Most environmental evaluation as candidate noninterference basis. The Department pressurized water reactors operating in target fabrication and postirradiation estimates that ATR alone could produce the United States are licensed to operate processing facilities: REDC at ORNL; up to 5 kilograms (11 pounds) of at thermal power levels of 2,500 to 3,500 FDPF at INEEL; the Fuels and Materials plutonium-238 per year and could be megawatts for net station electric Examination Facility (FMEF) at used in combination with any one of the outputs of 800 to 1,200 megawatts- Hanford; and the Radiochemical candidate processing facilities for electric. The primary mission of a Processing Laboratory (RPL)/ plutonium-238 production. CLWR is the production of electric Development Fabrication Test HFIR is a light-water-cooled and power. Plutonium-238 production Laboratory (Building 306–E), also at -moderated reactor operated at a thermal would have been conducted on a Hanford. Environmental impacts were power level of 85 megawatts. It is used noninterference basis. Had a CLWR also estimated for a new generic support for both isotope production and neutron been selected for production of facility at an unspecified DOE site. research. Originally designed to operate plutonium-238, site specific NEPA REDC at ORNL is a companion facility at a full power level of 100 megawatts- reviews would have been conducted to HFIR. REDC’s two buildings house thermal, it currently operates at a prior to selection of a CLWR. shielded hot cells and analytical maximum authorized power level of 85 The Department considered laboratories. These hot cells and megawatts-thermal to extend the useful construction of one or two accelerators laboratories are used in the fabrication life of the reactor. The reactor operates at an unspecified DOE site as candidate of fuel rods and targets for irradiation with highly enriched uranium fuel. The irradiation facilities. Environmental and to process irradiated rods and primary mission at HFIR is neutron impacts that could have resulted from targets for the separation and research for the Department’s Office of construction and operation of the purification of transuranic elements, Science. Civilian nuclear energy accelerator(s) used preconceptual process development, and product research and additional isotope designs for low- and high-energy purification and packaging. Several production will be undertaken on a accelerators. The low-energy accelerator alternatives and options (including the noninterference basis. To complement was designed to support medical and Preferred Alternative) included the use plutonium-238 production at ATR, industrial isotope production as well as of ORNL’s REDC Building 7930 for HFIR could produce up to 2 kilograms civilian nuclear energy research. The storage of neptunium-237 and (4.4 pounds) per year. high-energy accelerator was designed to fabrication and postirradiation FFTF is a 400-megawatts-thermal, support plutonium-238 production and processing of neptunium-237 targets. sodium-cooled nuclear test reactor. It civilian nuclear energy research. The The REDC hot cell facilities to be used was operated from April 1982 to preconceptual designs are described in under the Preferred Alternative have not December 1993. FFTF was used the NI PEIS. Had either or both yet been used for any mission. Activities primarily to evaluate reactor fuels and accelerator(s) been selected for required for target fabrication will take different fuel assembly materials during implementation, site-specific NEPA place in shielded glove boxes. its 10 years of operation. It also reviews would have been conducted Mechanical operations involved in the supported test programs for industry, prior to site selection and production of final target fabrication present lesser nuclear energy (domestic and isotopes and civilian nuclear energy hazards that may permit them to be VerDate 11 carried out in open boxes. Cell E will constructed to perform fuel fabrication for irradiation, processing exposed contain processing equipment to purify and development and postirradiation targets, and housing the materials the separated plutonium-238 product, examination of breeder reactor fuels. research and development activities in prepare the plutonium oxide, and FMEF is currently being maintained association with Alternatives 3 and 4. transfer the oxide into shipping in mission-ready condition. In 1998, to Siting of the generic support facility for containers. Cell E will also contain reduce the cost of maintaining the medical and industrial isotope vertical storage wells for dry storage of facility, many systems were shut down production would have required that neptunium and other actinides. Cell D and most hazardous materials were the facility be located in the same activities will include receipt of removed from the building. FMEF is general vicinity (within 0.2 to 20 irradiated targets, as well as target uncontaminated because no nuclear kilometers [0.07 to 12.4 miles]) as the dissolution, chemical separation of materials have been introduced. Some new irradiation facility (accelerator or neptunium and plutonium from fission critical systems remain in operation, reactor). Collocation with the irradiation products, and partitioning and e.g., the fire detection and protection facility would have been needed to purification of neptunium. Cell D also systems. To avoid freezing of the fire process irradiated target materials contains process equipment to remove protection water systems, limited promptly after removal from the reactor/ transuranic elements from the aqueous heating and ventilation remains accelerator and to minimize waste streams and vitrifying waste. operational. Electric power and lighting transportation time. Although the FDPF is in the Idaho Nuclear remain available, and the freight facility could have been located within Technology and Engineering Center elevator remains in service to support the irradiation facility security (INTEC), which is located northeast of routine facility inspection and protection area, the lack of a defense the Central Facilities Area at INEEL and maintenance. The use of FMEF for mission and the lack of a fissile material approximately 3.2 kilometers (2 miles) neptunium-237 target material storage, presence in the generic support facility southeast of ATR. FDPF was a candidate target fabrication, and post-irradiation indicate that a high level of physical fabrication and postirradiation processing would have required protection would not have been processing facility in several options construction of a new 76-meter (250- warranted. under Alternatives 1 through 4. FDPF foot) stack. has no current mission. Historically, Two Hanford 300 Area facilities were III. Alternatives and Options INTEC reprocessed spent nuclear fuel considered for support of medical and The Department evaluated potential from U.S. Government reactors to industrial isotope target fabrication and environmental impacts that could result recover reusable highly enriched post-irradiation processing: RPL and from implementation of alternatives and uranium. After the Department Building 306–E. RPL/306–E were options that support isotope production announced in April 1992 that it would candidate facilities to support medical and civilian nuclear energy research. A no longer reprocess spent fuel, and industrial isotope production and No Action Alternative and five reprocessing operations at INTEC civilian nuclear energy research and programmatic alternatives were ended. development activities. RPL would have assessed. Table 1 summarizes the Two buildings at INTEC were been the primary site for fabricating the facilities associated with each candidate storage and processing sites radioactive targets (i.e., targets alternative option. for plutonium-238 production: Building containing radium-226 or recycled No Action Alternative CPP–651, the Unirradiated Fuel Storage materials from previous irradiations). Facility, and Building CPP–666, FDPF. Total space within RPL is 13,350 Under the No Action Alternative Under this alternative, chemical square meters (143,700 square feet), of (maintain status quo), FFTF would have separation would occur in the FDPF cell which 4,140 square meters (44,500 been maintained in standby status for 35 using small centrifugal contactors square feet) are occupied by general years. Ongoing operations at existing installed for that purpose. Neptunium- chemistry laboratories. A recent space facilities would have continued. The 237 would have been stored in FDPF or utilization survey of RPL indicated that Department would not establish a Building CPP–651, which is located 646 square meters (6,950 square feet), domestic plutonium-238 production within 100 meters (328 feet) of FDPF. representing 15.6 percent of the capability, but would have continued to There are 100 in-ground, concrete- laboratory area, are presently purchase Russian plutonium-238 to shielded storage well positions in this unoccupied. All of the occupied and meet the long-term needs of future U.S. vault. Each storage well contains a rack nearly all of the unoccupied laboratories space missions. For the purposes of the that can be modified to house containers are functional and equipped with environmental analysis, it was assumed for neptunium-237. standard utilities. Of the 79 functional that the purchase of plutonium-238 Hanford’s FMEF was a candidate fume hoods and 23 shielded glove from Russia would continue as needed facility for storage of neptunium-237, boxes, 50 fume hoods and 15 glove to support U.S. space missions. The fabrication of neptunium-237 targets, boxes are available for additional work. environmental analysis included and processing of irradiated neptunium- Building 306–E was constructed in transportation impacts that could result 237 targets for several options under 1956 as part of the nuclear material from the purchase of up to 175 Alternatives 1 through 4. FMEF could production program at Hanford. It was kilograms (385.8 pounds) of plutonium- have supported medical and industrial used to develop the co-extrusion 238 from Russia. Any purchase of production mission and civilian nuclear process for N-Reactor fuel. Major plutonium-238 beyond that currently energy research and development upgrades and renovations were available in the United States through mission activities at the Hanford Site completed in the late 1960s and early the existing contract would require under Alternative 1. FMEF is west of 1970s to support the civilian reactor additional NEPA review. The FFTF in the 400 Area of Hanford. It was development program. These activities Department’s medical and industrial built during the late 1970s and early would not have impacted current isotope production and civilian nuclear 1980s as a major addition to the breeder missions at the facilities. energy research and development reactor technology development A new generic support facility would activities would have continued at the program at Hanford. Although it has have had the mission of preparing current operating levels. A consequence never been used, the facility was medical and industrial isotope targets of a No Action decision would have VerDate 11 been the need to determine the future of Therefore, the impacts of possible future neptunium-237 were evaluated as part the neptunium-237 stored at SRS. transportation and storage of of the No Action Alternative. BILLING CODE 6450–01–P VerDate 11 BILLING CODE 6450–01–C VerDate 11 Four options were analyzed under the under this alternative are associated the plutonium-238 product will be No Action Alternative. If the with the type of nuclear fuel which was transported to LANL. Department had decided not to to be used for FFTF operations and the If DOE proposes specific reestablish domestic production of specific facilities which were to be used enhancements of existing facilities in plutonium-238, the inventory of for target fabrication and processing. order to implement Alternative 2, neptunium-237 would have had no The first three options (Options 1 further NEPA review would be programmatic value and Option 1 through 3) would have involved conducted. would have been selected. Under this operating FFTF with mixed oxide fuel Alternative 3—Construct New option, neptunium-237 would have for the first 21 years and uranium fuel Accelerator(s) been stabilized in solution form at SRS. for the remaining 14 years. Options 4 Had the Department decided to through 6 would have involved Under Alternative 3, one or two new maintain the neptunium-237 inventory operating FFTF with mixed oxide fuel accelerators would have been used for for future plutonium-238 production, for the first 6 years and uranium fuel for target irradiation. The new accelerator(s) the neptunium-237 oxide inventory the remaining 29 years. Environmental would have been constructed at an would have been transported from SRS impacts that will result from existing DOE site(s). Production of to one of three candidate sites for up to deactivation of FFTF at the end of its isotopes including plutonium-238, and 35 years of storage for possible future operating life are addressed under civilian nuclear energy research would use: Option 2, REDC at ORNL; Option Alternative 5. have been the primary missions at the 3, Building CPP–651 at INEEL; or new accelerators. Option 4, FMEF at Hanford. The Alternative 2—Use Only Existing Neptunium-237 would have been Department’s nuclear infrastructure Operational Facilities transported from SRS to the fabrication facility, where it would have been would not have been expanded under Under Alternative 2, the Department stored until fabrication. Targets for the No Action Alternative. will use existing operating reactors to plutonium-238 production would have produce plutonium-238 for future space Alternative 1—Restart FFTF been fabricated in one of the three missions. The production of medical Under Alternative 1, FFTF at Hanford alternative facilities at ORNL (Option 1), and industrial isotopes and support for INEEL (Option 2), or Hanford (Option would have been restarted and operated civilian nuclear energy research and at a nominal 100 megawatts for 35 years. 3). The targets would have been development will continue at irradiated in a new high-energy Production of isotopes and research in approximately current levels without civilian nuclear energy would have been accelerator and then transported back to expansion of the Department’s nuclear the target fabrication facility for the primary missions at FFTF. Targets infrastructure. for medical and industrial isotope postirradiation processing. Environmental impacts were production would have been fabricated Target materials for medical and at one or more facilities at Hanford, estimated for three irradiation facilities: industrial isotope production would irradiated at FFTF, and then returned to ATR (only) at INEEL (Options 1 through have been stored on site until fabricated the fabrication facility for 3), a generic CLWR (Options 4 through into targets in a new support facility postirradiation processing. From there, 6), and ATR/HFIR at ORNL (Options 7 located at the same site as the low- the isotope products would have been through 9). ATR, HFIR, and the CLWR energy accelerator. The targets would sent to commercial pharmaceutical or would continue their current primary have been irradiated in the low-energy industrial distributors. missions under all options of accelerator and returned to the new Under this alternative, neptunium- Alternative 2. Production of plutonium- support facility for postirradiation 237 would have been transported from 238 will be conducted as a secondary processing. Because Alternative 3 was SRS to one of the three fabrication/ mission on a noninterference basis. evaluated at a generic site, site selection postirradiation processing facilities Under Alternative 2, Alternative 5 was not evaluated as part of the NI PEIS shown in Table 1: ORNL (Options 1 and would also be selected and FFTF would and no credit was taken for any support 4), INEEL (Options 2 and 5), or Hanford be permanently deactivated. infrastructure existing at the generic (Options 3 and 6), where targets would Neptunium-237 will be processed and site. It was assumed that a new support have been fabricated as needed to transported from SRS to the fabrication facility would be required to support support U.S. space missions. Following facility, where it will be stored until operation of the low-energy accelerator irradiation at FFTF, the irradiated fabrication. The NI PEIS evaluates and its missions and the high-energy targets would have been returned to the environmental impacts that could result accelerator civilian nuclear energy fabrication facility for postirradiation from target fabrication/postirradiation research and development missions if extraction of plutonium-238. processing at one of three facilities at both accelerators were located on the Plutonium-238 then would have been ORNL (the preferred facility), INEEL, or same site. While this approach bounds transported to Los Alamos National Hanford (see Table 1). The targets will the environmental impact assessment Laboratory (LANL) in New Mexico for be irradiated at ATR and HFIR. for the implementation of Alternative 3, use in heat and electric power sources. Environmental impacts that could result it overstates the impacts because the NI Under Alternative 1, raw materials, from using a CLWR for irradiation PEIS integrates the impacts associated nonirradiated targets, irradiated targets, services are also included in the NI with constructing new support facilities and processed materials would have PEIS. After irradiation, neptunium-237 and infrastructure that may already be been transported between the locations targets will be transported back to the available at the existing site. Had selected for raw target material fabricating facility for postirradiation Alternative 3 been selected for acquisition, material storage, target processing. implementation, site-specific NEPA fabrication, target irradiation, and Under Alternative 2, nonirradiated reviews would have been conducted postirradiation processing, as well as targets, irradiated targets, and processed prior to site selection. the final destination for the medical and materials will be transported between Under Alternative 3, nonirradiated industrial isotopes and the plutonium- the locations selected for storage, target targets, irradiated targets, and processed 238 product or various research and fabrication, target irradiation, and materials would have been transported development test sites. The six options postirradiation processing. In addition, between the locations selected for VerDate 11 storage, target fabrication, target storage, target fabrication, target Tennessee would be used, as irradiation, postirradiation processing, irradiation, postirradiation processing, appropriate, to irradiate targets for this and the final destination of the and the final destination of the purpose without interfering with either plutonium-238. The environmental plutonium-238. The environmental reactor’s primary mission. The Preferred evaluation of Alternative 3 also evaluation of Alternative 4 also Alternative includes fabricating and included environmental effects resulting included environmental effects resulting processing targets for the production of from decontamination and from decontamination and plutonium-238 at REDC at ORNL. decommissioning of the accelerator(s) decommissioning the research reactor The Preferred Alternative also and the processing facility when the and the processing facility when the addressed the future of FFTF. While the missions are over, as well as missions are over, as well as Department recognizes that this facility deactivation of FFTF at Hanford. deactivation of FFTF at Hanford. has unique capabilities, the Preferred Alternative noted the absence of Alternative 4—Construct New Research Alternative 5—Permanently Deactivate commitments from other agencies, the Reactor FFTF with No New Missions private sector or other governments that Under Alternative 4, a new research Under Alternative 5, the Department would clearly justify restarting the reactor would have been used for target would have permanently deactivated facility, and accordingly proposed to irradiation. The new research reactor FFTF, with no new missions. Medical permanently deactivate FFTF. would have been constructed at an and industrial isotope production and In the absence of commitments that existing site. Production of isotopes civilian nuclear energy research and would justify the restart of FFTF or the including plutonium-238, and civilian development missions at existing construction of new facilities as nuclear energy research would have facilities would have continued at proposed under Alternatives 3 and 4, been the primary missions at the new current levels. The Department’s the Department anticipates that its research reactor. nuclear facilities infrastructure would current infrastructure will serve the Neptunium-237 would have been not have been enhanced. needs of the research and isotope transported from SRS to the fabrication communities for the next 5–10 years. In IV. Preferred Alternative facilities where it would have been particular, DOE will consider stored until fabrication. As shown in The Council on Environmental opportunities to enhance its effort to Table 1, targets for plutonium-238 Quality (CEQ) regulations require an provide medical and research isotopes. production would have been fabricated agency to identify its preferred If significantly larger amounts of at one of the three facilities at ORNL alternative(s) in the final environmental isotopes are required in the future, the (Option 1), INEEL (Option 2), or impact statement (40 CFR 1502.14(e)). Department would rely on the private Hanford (Option 3). The targets would The preferred alternative is the sector to fulfill these needs. have been irradiated in the new research alternative that the agency believes As a potential option for the longer- reactor and transported back to the would fulfill its statutory mission, term future, the Department proposes to target fabrication facilities for giving consideration to environmental, work over the next 2 years to establish postirradiation processing. economic, technical, and other factors. a conceptual design for an Advanced Targets for medical and industrial Consequently, to identify a preferred Accelerator Applications (AAA) facility. isotope production would have been alternative, the Department developed Such a facility, which would be used to fabricated in a new support facility information on potential environmental evaluate spent fuel transmutation, located at the same site as the new impacts, costs, policy issues, and conduct various nuclear research research reactor. Target materials would technical and schedule risks for the missions, and ensure a viable backup have been stored on site until alternatives described in the NI PEIS. technology for the production of tritium fabrication. The targets would have been The NI PEIS provides information on for national security purposes, was irradiated in the new research reactor environmental impacts. Cost, proposed and initial work funded in the and returned to the new support facility nonproliferation policy, and various fiscal year 2001 Energy and Water for postirradiation processing. technical reports have also been Appropriation Act. If the Department Because Alternative 4 was evaluated prepared and are available for public proposes specific enhancements of at a generic DOE site, site selection was review in the Department’s reading existing facilities or development of the not evaluated as part of the NI PEIS and rooms. AAA facility, further NEPA review no credit was taken for any existing The Department’s Preferred would be conducted. support infrastructure at the site. It was Alternative, as identified in the Final NI assumed that a new support facility PEIS, was to apply its existing V. Alternatives Considered But would be required to support the new infrastructure to pursue missions Dismissed research reactor. While this approach outlined in the NI PEIS. Under this In developing a range of reasonable bounds the environmental impact approach, the Department would alternatives, the Department examined assessment for the implementation of consider opportunities to enhance its the capabilities and available capacities Alternative 4, it overstates the impacts existing facilities to maximize the of more than 40 candidate irradiation because the NI PEIS integrates the agency’s ability to address future facilities and 30 processing facilities at impacts associated with constructing mission needs. existing and planned nuclear research new support facilities and infrastructure Under the Preferred Alternative, the facilities (accelerators, reactors, and that may already be available at the Department would reestablish domestic processing hot cells) that could existing site. If selected, this alternative production of plutonium-238, as potentially be used to support one or all would require site-specific NEPA needed, to support U.S. space of the isotope production and research reviews to be completed prior to site explorations. As discussed in NI PEIS, missions. selection. Chapter 1, Section 1.2.2, reestablishing Irradiation capabilities of existing Under Alternative 4, nonirradiated a domestic plutonium-238 production government, university, and commercial targets, irradiated targets, and processed capability would ensure that the United irradiation facilities were evaluated to materials would have been transported States has a long-term, reliable supply of determine whether they could between the locations selected for this material. ATR in Idaho and HFIR in adequately support the nuclear VerDate 11 infrastructure missions. Some of the None of the alternatives would have under normal operations was calculated irradiation facilities were dismissed had significant impact on regional to be 2.6 × 10¥7 and the maximum from further evaluation because they economic areas or community services hazard index was estimated to be lacked technical capability or available at Hanford, INEEL, and the Oak Ridge 0.0064. All risks were found to be small capacity. Reasons for dismissal included Reservation (ORR). Socioeconomic and no latent cancer fatalities would be lack of availability, lack of steady-state impacts at the generic sites could not be expected to result from implementation neutrons, or insufficient power levels to evaluated in detail because areas of the alternatives at any candidate site. support steady-state neutron potentially affected under Alternatives 3 production. Facilities were similarly and 4 could vary widely in demographic VII. The Environmentally Preferable dismissed if existing capacity was fully and economic composition. Alternative dedicated to existing missions, or if use Maximum transportation impacts of existing capacity to support the NI from normal operations for all Environmental impacts, including PEIS alternatives would impact existing alternatives and options were calculated human health and safety, transportation, missions. to be 0.21 latent cancer fatalities for socioeconomics, and environmental Numerous existing U.S. processing radiological risks and 0.008 fatalities for justice, were estimated to be small for hot cell facilities possess the capabilities vehicle emissions. Maximum impacts all of the alternatives and did not and capacity to support the nuclear from transportation accidents were provide a reasonable basis for infrastructure. Given this general calculated to be 0.53 latent cancer discriminating among alternatives. The availability, and to minimize fatalities for radiological risks and 0.19 No Action Alternative and Alternative 5 transportation costs, only existing fatalities for vehicle collisions. All were found to have the least processing facilities that are collocated calculated risks were less than 1 fatality environmental impact, but neither of at candidate irradiation facility sites for the 35-year mission. these alternatives would have satisfied (i.e., ORNL, INEEL, and Hanford) were None of the alternatives at existing the Department’s missions. Depending candidate sites would have had a evaluated in the NI PEIS. Although on the selected site, new construction significant effect on land use, visual multiple processing facilities exist at could involve previously undisturbed resources, noise, water quality, geology each of these sites, only the most land with a potential direct loss of and soils, ecology, cultural resources, suitable facilities in terms of capability, and environmental justice. wetlands and impacts on cultural and capacity, and availability were given Implementation of the alternatives at paleontological resources, local further consideration. one or more generic sites could employment and regional economic VI. Summary of Environmental Impacts potentially have resulted in significant conditions, and air quality. impacts in one or more of these resource The environmental impact analysis in VIII. Other Considerations areas. the NI PEIS addressed resource areas The maximum amount of waste Public Input pertinent to the sites considered. generated by waste type under any Impacts were assessed for land alternative or option would have been Approximately 3,500 resources, noise, air quality, water 380 cubic meters of transuranic waste; communications, some with multiple resources, geology and soils, ecological 5,200 cubic meters of low-level waste; comments, on the Draft NI PEIS were resources, cultural and paleontological 430 cubic meters of mixed low-level received via U.S. mail, e-mail, fax, and resources, socioeconomics, waste; 3,300 cubic meters of hazardous telephone. During the 52-day comment environmental justice, and waste waste; and 1.1 × 10¥7 cubic meters of period, DOE held seven hearings to management. Radiological and nonhazardous waste. The maximum discuss the proposed action and to nonradiological impacts to workers and amount of spent nuclear fuel produced receive oral and written comments on the public that could result from would have been 16 metric tons (heavy the Draft NI PEIS. These hearings were construction, normal operations, and metal). Hazardous waste generated held at Oak Ridge, Tennessee; Idaho accidents were addressed. under any of the alternatives or Falls, Idaho; Hood River, Oregon; Environmental impacts of current, combination of alternatives could have Portland, Oregon; Seattle, Washington; proposed, and reasonably foreseeable been managed under the Department’s Richland, Washington; and Arlington, activities at candidate sites were existing waste management included in cumulative impacts. Virginia. These comments addressed a infrastructure. The environmental variety of topics and provided a wide The only resource area that could be evaluation provided in the NI PEIS significantly impacted by the range of views. The general focus of assumed that transuranic waste results these communications was: (1) Support implementation of any of the from processing irradiated targets. The for deactivation of FFTF; (2) support for alternatives is water use associated with Department will consider whether the restarting FFTF; (3) concerns that a the construction of new facilities. waste that results from processing compelling case for the purpose and Because no specific site was selected irradiated neptunium-237 targets should under Alternatives 3 and 4, potential be classified as high-level or transuranic need was lacking; (4) concerns that impacts from construction could not be waste. Regardless of the classification, restarting FFTF would hinder Hanford fully evaluated. In the absence of new the physical characteristics of the waste cleanup efforts and would be a violation construction, implementation of the generated are the same and waste of the Hanford Tri-Party Agreement; and alternatives would not significantly management activities will be the same. (5) perceptions that production of affect water use. The maximum calculated radiological plutonium-238 would violate U.S. The largest effect on air quality would risk to the public from normal facility nonproliferation policies. Volume 3 of also occur during construction operations for any alternative or option the NI PEIS provides the Department’s activities. Under operating conditions, was 0.0039 latent cancer fatalities. The responses to these comments. Changes for all alternatives and options, air maximum radiological risk to the public to the Draft NI PEIS that resulted from quality impacts would have been small from accidents was calculated at 0.54 comments received from the public are in comparison with the most stringent latent cancer fatalities. The maximum discussed in Section 1.8 of the Final NI standards. cancer risk from hazardous chemicals PEIS. VerDate 11 Costs Nonproliferation Impacts incorporate neptunium-237 and The Department’s Office of Arms plutonium-238 processing at FDPF The costs of implementing each of the raised nonproliferation concerns related alternatives identified in the NI PEIS are Control and Nonproliferation completed an assessment of the nuclear weapons to supporting negotiation of a verifiable analyzed in the Department’s cost study, nonproliferation impacts for each of the Fissile Material Cutoff Treaty (FMCT) Cost Report for the Alternatives alternatives. Results of this assessment and the potential for international Presented in the Draft Programmatic are provided in a report dated monitoring. FDPF is currently excluded Environmental Impact Statement for September 2000, Nuclear Infrastructure from international monitoring for Accomplishing Expanded Civilian Nonproliferation Impact Assessment for reasons of national security. Since it is Nuclear Energy Research and Accomplishing Expanded Civilian not known whether a Russian facility Development and Isotope Production Nuclear Energy Research and would be made available for Missions in the United States, Including Development and Isotope Production international monitoring, as a result of the Role of the Fast Flux Test Facility, Missions in the United States, Including past and ongoing national security dated August 2000. Table 2 presents the the Role of the Fast Flux Test Facility programs at the facility, there is range of costs for each of the NI PEIS (DOE/NE–0119). This assessment significant uncertainty as to whether alternatives. The range of costs for a showed that none of the alternatives international monitoring would be specific alternative reflects cost was unacceptable from a permitted in a Russian Pu-238 differences between options. The FFTF nonproliferation point of view. Some of processing facility. In addition, the restart implementation costs were the alternatives and options exhibit a continued production of fresh and assessed with and without the cost for more favorable nonproliferation posture recycled neptunium in the Russian permanently deactivating FFTF. than others. The No Action Alternative nuclear program raises a significant and other alternative options that nonproliferation concern. IX. Comments on the Final NI PEIS requested deferring the shutdown • A letter from the Japan Atomic decision until the incoming Energy Commission stating Japanese The Department received comments administration could consider it; and concerns about the loss of FFTF. from about 130 individuals and/or stated that the selection of the Preferred • organizations after publication of the A letter from NASA stating its Alternative was purely a political interest in DOE maintaining the Final NI PEIS. Many of the commentors decision. opposed the selection of the Preferred capability to develop space reactor Several members of the Washington technology. Alternative. Congressional delegation wrote to the • A letter from DuPont stating its Approximately 50 comments have Secretary suggesting that the interest in FFTF operation to produce been received that support the restart of Department had not given industry a medical isotopes. FFTF. These comments supported one clear opportunity to propose use of the • or more missions, including the FFTF and advocated a formal A letter from a law firm to the production of medical isotopes and solicitation process before action was Secretary on behalf of Benton County, plutonium-238; stated that deactivation taken to deactivate the reactor. Other Washington urging stating the of FFTF would take money away from comments that expressed opposition to, Department to prepare a supplemental Hanford’s cleanup mission; stated that or concerns about FFTF activation PEIS prior to issuance of the Record for the talented resource pool of personnel included the following: Decision. at Hanford would be drained if FFTF • Letters from national cancer patient About 20 comments were received were shut down; requested organizations (National Association of that supported the permanent reconsideration of permanent Cancer Patients and the Children’s deactivation of FFTF, stating that it was shutdown; protested the Preferred Cancer Committee) appealing the the right decision for economic, safety, Alternative in favor of FFTF restart; decision to deactivate FFTF. and environmental reasons. VerDate 11 Other comments received on the Final commitments to support these costs or then the Department will pursue NI PEIS include the following: mitigate the costs of building new purchasing plutonium-238 from Russia • One commentor stated that the facilities. Given that existing facilities while reestablishing domestic Final NI PEIS was biased toward the can meet DOE’s near-term needs for production capabilities. accelerator alternative (as addressed in isotope production and research, the The Department anticipates that its the Preferred Alternative). Department believes that it should • current infrastructure will serve the One commentor stated that the invest its funds in enhancing its existing needs of the research and isotope Department did not request the infrastructure and exploring the communities for the next 5 to 10 years. commitments that would justify restart potential of a new Advanced The Department will continue to of FFTF or construction of new facilities Accelerator Applications facility as a evaluate the medical and research that were addressed in the Preferred long-term option to meet U.S. research isotope needs and will propose Alternative. needs. It is for these reasons that DOE • One commentor stated that the appropriate actions to meet these needs, has chosen to proceed with the as necessary. If significantly larger production of plutonium-238 was not Preferred Alternative. consistent with United States and amounts of isotopes are required in the international policy concerning Domestic production of plutonium- future, others would need to respond to nonproliferation. 238 will be reestablished to support U.S. these requirements. • Mr. Tom Clements of the Nuclear space exploration. The Advanced Test To explore a potential option to Control Institute reported that his letter Reactor (ATR) in Idaho and the High address some future research of September 18, 2000 was not included Flux Isotope Reactor (HFIR) in infrastructure needs, the Department in the NI PEIS Comment Response Tennessee will be used to irradiate intends to work over the next two years Document, Volume 3. The Department neptunium-237 targets for the to establish a conceptual design for an regrets this oversight and provided Mr. production of plutonium-238. Advanced Accelerator Applications Clements written responses to his Plutonium-238 production can be (AAA) facility. Such a facility was comments in a letter dated January 5, accomplished without interfering with proposed and initial work funded in the 2001. Both Mr. Clements’ letter and the the existing primary missions at ATR fiscal year 2001 Energy and Water Department’s response were considered and HFIR. The Radiochemical Appropriations Act. This facility would in the preparation of this Record of Engineering Development Center be used to evaluate spent nuclear fuel Decision. (REDC) in Tennessee will be used for transmutation, conduct various nuclear The Department considered these fabricating targets and processing research missions, and ensure a viable comments during the preparation of the irradiated targets to recover plutonium- backup technology for the production of Record of Decision. The Department 238. These existing operating facilities tritium for national security purposes. If believes that the NI PEIS is adequate for were selected because of the the Department proposes specific this decision and that no supplement is Department’s confidence in the enhancements of existing facilities or necessary. The Department recognizes facilities’ cost estimates, technical deployment of an AAA facility, further that significant uncertainties remain capabilities, and consistency with NEPA review will be conducted. regarding the future of research and existing onsite target irradiation and isotope production activities that could processing activities. Three irradiation XI. Mitigation justify operation of the FFTF. However, facilities were evaluated for Alternative As discussed in the NI PEIS, the Department believes that its current 2. CWLR options were not selected implementation of any of the infrastructure will serve the needs of the because of uncertainties in the target alternatives would have had small research and isotope communities for design, development and fabrication. environmental impacts and no the next 5 to 10 years and that The design and fabrication technology mitigation actions specific to the opportunities to enhance its existing of neptunium-237 targets for irradiation implementation of the alternatives were facilities are available. Although the in ATR and HFIR is much more mature. identified. The Department’s policy is to Department did weigh comments While ATR alone could meet the maintain exposure of workers and the received on the Final PEIS, it does not plutonium-238 production public to radiological and view these as being significantly requirements, the Department selected nonradiological emissions to levels that different than those received on the the HFIR and ATR irradiation option are as low as is reasonably achievable. Draft PEIS and therefore did not change because it offers additional diversity The Department has adopted stringent its views as described in the Preferred and flexibility in meeting the controls for minimizing occupational Alternative in the Final PEIS. production goals and reducing potential and public exposure to radiological and impacts on future HFIR and ATR X. Decision nonradiological emissions. These missions. Three processing facilities measures will avoid, reduce, or The Department has decided to were evaluated for Alternative 2. REDC eliminate adverse or potentially adverse implement the Preferred Alternative was selected as the preferred processing impacts from activities undertaken as a identified in Section 2.8 of the Final NI facility because of the facility’s result of this decision. In implementing PEIS (Alternative 2, Option 7) and if experience base (30 years of target this decision, the Department will use required, part of the No Action fabrication and processing experience); all practicable means to avoid or Alternative that includes purchasing current technical staff knowledge base, minimize environmental harm. In plutonium-238 from Russia. While it is experience, and testing in support of addition, the Department’s policy is to clear from the analysis in the NI PEIS DOE-funded plutonium-238 production minimize waste generation. that FFTF has unique capabilities and studies and analyses; and the could accomplish many of the Department’s confidence in the facility Issued in Washington, D.C., this 19th day irradiation missions of the Department, modification requirements and of January 2001. it is also clear that the Department operating cost estimates. If the Bill Richardson, would need to make a long-term Department’s existing inventory of Secretary of Energy. commitment to its operation. The plutonium-238 is insufficient to meet [FR Doc. 01–2271 Filed 1–25–01; 8:45 am] Department has not received near-term space mission requirements, BILLING CODE 6450–01–P VerDate 11 DEPARTMENT OF ENERGY SUPPLEMENTARY INFORMATION: a new facility, the APSF, to enable plutonium oxides to be stabilized, and Background Interim Management of Nuclear plutonium oxide and metal to be Materials NEPA Review and Decisions repackaged in accordance with DOE’s plutonium storage standard, recently AGENCY: Department of Energy The U.S. Department of Energy (DOE) revised as Stabilization, Packaging, and ACTION: Amended record of decision. prepared a final environmental impact statement, Interim Management of Storage of Plutonium-Bearing Materials SUMMARY: On December 12, 1995, the Nuclear Materials (IMNM EIS) (DOE/ (DOE–STD–3013–2000). The APSF also U.S. Department of Energy (DOE) issued EIS–0220, October 20, 1995), in was intended to provide space for a Record of Decision (ROD) and Notice accordance with the National consolidated storage of plutonium and of Preferred Alternatives, 60 FR 65300 Environmental Policy Act (NEPA), special actinide materials at the SRS. (December 19, 1995), for the final Council on Environmental Quality Subsequently, DOE issued four environmental impact statement, NEPA implementing regulations, and supplemental RODs (61 FR 6633, 61 FR 48474, 62 FR 17790, and 62 FR 61099) Interim Management of Nuclear DOE implementing procedures. The to make additional decisions and/or Materials (IMNM EIS) (DOE/EIS–0220, IMNM EIS assessed the potential modify existing decisions concerning October 20, 1995), at the Savannah environmental impacts of actions the management of nuclear materials at River Site (SRS), Aiken, South Carolina. necessary to safely manage nuclear the SRS. None of these subsequent As part of its decision, DOE decided to materials at the Savannah River Site decisions altered DOE’s decision to construct a new facility, the Actinide (SRS), Aiken, South Carolina, until Packaging and Storage Facility (APSF), construct the APSF. decisions on their future use or ultimate In December 1996, DOE issued the to prepare, package, and store disposition are made and implemented. Storage and Disposition of Weapons- plutonium oxide and metal in The IMNM EIS grouped the nuclear Usable Fissile Materials Final accordance with DOE’s plutonium materials at the SRS into three Programmatic Environmental Impact storage standard, recently revised as categories: Stable, Programmatic, and Statement (Storage and Disposition Stabilization, Packaging, and Storage of Candidates for Stabilization. Some of PEIS) (DOE/EIS–0229). The Storage and Plutonium-Bearing Materials (DOE– the ‘‘Programmatic’’ and all of the Disposition PEIS, among other things, STD–3013–2000). The APSF also was ‘‘Candidates for Stabilization’’ materials assesses the potential environmental intended to provide space for could have presented environmental, impacts of alternative approaches and consolidated storage of plutonium and safety and health vulnerabilities in their locations for storing weapons-usable special actinide materials at the SRS. then-current storage condition. For fissile materials (plutonium and highly For several reasons, including project materials that could present enriched uranium). DOE decided in the cost growth concerns, DOE is canceling environmental, safety, or health Storage and Disposition ROD (January the APSF project and instead installing vulnerabilities, the IMNM EIS evaluated 14, 1997, 62 FR 3014) to expand the the stabilization and packaging processing alternatives to meet the new storage capacity (from a nominal 2,000 capability to meet the plutonium storage plutonium storage standard to ensure storage positions to 5,000 storage standard within Building 235–F, an safe intermediate to long-term storage. positions) of the prospective APSF to existing plutonium storage and The capability to meet the new storage accommodate at the SRS the storage of processing facility in F-Area at the SRS. standard did not exist at the SRS at the surplus non-pit plutonium to be DOE also will use existing SRS vault time of the preparation of the IMNM received from RFETS, pending storage space, including space in EIS, nor at any other DOE site. disposition. DOE also indicated in the Building 235–F, to store plutonium (and Subsequently, DOE has been working to Storage and Disposition ROD that DOE other nuclear material inventories) establish this capability at its non-pit 1 would pursue a strategy for surplus pending disposition. surplus plutonium sites. Facilities plutonium disposition that allows for FOR FURTHER INFORMATION CONTACT: For providing this capability at the Rocky immobilization of surplus weapons further information on the interim Flats Environmental Technology Site plutonium in glass or ceramic forms and management of nuclear materials at the (RFETS, Golden, Colorado), Hanford burning of the surplus plutonium as SRS, to receive a copy of the final (Richland, Washington), and Lawrence mixed oxide (MOX)2 fuel in existing IMNM EIS, or a copy of the 1995 IMNM Livermore National Laboratory reactors. The immobilized plutonium ROD, contact: Andrew R. Grainger, (Livermore, California) are nearing and the spent MOX fuel would be NEPA Compliance Officer, U.S. completion and startup. Stabilizing and disposed of in a geologic repository. Department of Energy, Savannah River packaging plutonium to the storage Subsequently, in order to support the Operations Office, Building 703–47A, standard are generally the last steps in early closure of RFETS, DOE issued an Room 122, Aiken, South Carolina 29802 completing the stabilization process. amended Storage and Disposition ROD (800) 881–7292 Internet: The IMNM EIS considered two options (August 6, 1998, 63 FR 43386) to allow [email protected]. for providing this stabilization and the RFETS surplus non-pit plutonium to For further information on the DOE packaging capability at the SRS: (1) The be sent to the SRS before completion of NEPA process, contact: Carol M. construction of a new facility, APSF, the APSF. Based upon the amended Borgstrom, Director, Office of NEPA and (2) the modification of Building Storage and Disposition ROD, DOE Policy and Compliance (EH–42) U.S. 235–F in F-Area. undertook the K-Area Materials Storage Department of Energy, 1000 On December 12, 1995, DOE issued a (KAMS) project to modify and prepare Independence Avenue, SW, Record of Decision (ROD) and Notice of existing space within Building 105-K to Washington, DC 20585, (202) 586–4600, Preferred Alternatives, 60 FR 65300 store surplus plutonium in shipping or leave a message at (800) 472–2756. (December 19, 1995), on the interim containers as received from RFETS, Additionally, DOE NEPA information, management of several categories of pending disposition. The first shipment including the IMNM Final EIS and the nuclear materials at the SRS. As part of of surplus plutonium from RFETS for 1995 IMNM ROD, can be found on the its decision, DOE decided to construct DOE NEPA web site at: 2 A physical blend of uranium oxide and www.eh.doe.gov/nepa/. 1 A ‘‘pit’’ is a nuclear weapon component. plutonium oxide. VerDate 11 storage in KAMS is scheduled to arrive but the estimated costs are different, solutions, and (6) neptunium–237 in early calendar year 2001. particularly for the near-term. Over the solutions—require, or could require, a In November 1999, DOE issued the 10-year evaluation period (FY 2001– new capability to stabilize and package Surplus Plutonium Disposition Final 2010), cost differences (in FY 2001 the material to DOE’s storage standard Environmental Impact Statement (SPD dollars) range from approximately $5.5 to complete stabilization for safe interim EIS) (DOE/EIS–0283), which analyzed million to $230 million. The least costly management. The latter two materials, alternatives for the siting, construction, options involve varying degrees of plutonium–242 and neptunium–237, and operation of three surplus modification to Building 235–F. The were categorized as programmatic plutonium disposition facilities. These capital cost for the recommended materials in the IMNM EIS but were three facilities would accomplish pit Building 235–F option is estimated to be analyzed for completeness of the disassembly and conversion, plutonium $100 million to $250 million, which is potential impacts from stabilization and conversion and immobilization, and $30 million to $180 million less than packaging for long-term storage. DOE MOX fuel fabrication. DOE issued the the lowest cost APSF option. The has since stabilized the plutonium–242 Surplus Plutonium Disposition ROD on ‘‘high’’ capital cost estimate of $250 to oxide, and transferred it to the Los January 4, 2000 (65 FR 1608), which million for the recommended Building Alamos National Laboratory for selected the SRS for all three of the new 235–F option was used in the evaluation programmatic use without undergoing surplus plutonium disposition facilities. to compare costs between the stabilization and packaging to the Plutonium Stabilization and Storage stabilization and storage options. storage standard. The neptunium–237 Evaluation The evaluation considered options has yet to be stabilized, and a which could best meet the Department’s determination on program need or In light of APSF project cost growth stabilization and storage needs, given requirements for packaging to the concerns, SRS program and overall DOE various factors, such as funding levels, storage standard has yet to be made. The resource limitations, and an opportunity de-inventory strategies, and surplus need for neptunium–237 is being to increase the integration of the surplus plutonium disposition schedules. addressed in the Final Programmatic plutonium storage and surplus Surplus plutonium disposition Environmental Impact Statement for plutonium disposition missions, DOE schedules most notably affected overall Accomplishing Expanded Civilian suspended the APSF project in January costs. Delays of approximately seven Nuclear Energy Research and 1999, and undertook a systematic years or more to DOE’s surplus Development and Isotope Production review of SRS stabilization and storage plutonium disposition program would Missions in the United States, Including options. This review is documented in favor the more consolidated plutonium the Role of the Fast Flux Test Facility Evaluation of Savannah River storage options (the APSF options) (DOE/EIS–0310, December 2000). A Plutonium Storage and Stabilization because operating costs for a large single Record of Decision for that PEIS is Options (July 2000). The evaluation storage facility are less than for multiple expected to be issued in January 2001. considered several options for managing smaller facilities. Even though this The IMNM EIS considered two DOE’s surplus plutonium, pending ‘‘payback’’ would eventually occur if options [see IMNM EIS, Chapter 2. disposition, including: completion of there were substantial delays to the Alternatives and Appendix C, pp. C–41 the as-designed (5,000 storage position) surplus plutonium disposition mission, to C–45] for stabilizing, packaging, and APSF project, construction of a further- DOE believes there are more worthy storing plutonium to DOE’s storage expanded (10,000 storage position) unfunded projects that would provide standard—(1) the construction of the APSF, and cancellation of the APSF new APSF, and (2) the modification of project with surplus plutonium earlier investment returns in carrying out DOE missions. Building 235–F. The storage standard is managed through other means (e.g., designed to help ensure the safe storage processed to allow consolidation to Interim Management of Nuclear of the materials for long periods (e.g., 50 metal and/or stabilization and storage in Materials EIS years). Each option was designed to existing modified facilities). Alternatives provide the capability to heat plutonium The key recommendations of the oxide materials to drive off residual and evaluation are: (1) Cancel the APSF The IMNM EIS analyzed several absorbed moisture; package stabilized project and (2) initiate a project to alternatives, including the No Action material (oxides and metal) in at least install stabilization and packaging alternative, for the interim management two corrosion-resistant containers (a capability in Building 235–F at SRS. of eleven (11) types of nuclear materials container within a container) without The evaluation also recommends that at the SRS. All of the alternatives except the use of plastics, hydrogenous DOE continue with the decision to the Continued Storage (No Action) compounds, or organic material; weld- transfer RFETS stabilized plutonium would support DOE’s objective of seal the outer container in an inert (packaged in DOE–STD–3013 storage removing nuclear materials from atmosphere to ensure weld joint and containers within shipping containers) vulnerable conditions and from container material integrity; and store for storage in KAMS in unopened vulnerable facilities in preparation for the stabilized material and sealed shipping containers. The evaluation also decontamination and decommissioning. containers. recommends that DOE store SRS The IMNM RODs include decisions to In addition, the IMNM EIS considered stabilized materials in DOE–STD–3013 undertake stabilization and processing modifications to the FB-Line in the F- containers inside shipping containers in actions for ten (10) SRS nuclear material Canyon building (Building 221-F) at the existing vaults in Building 235–F, and types. (DOE decided to continue SRS to provide storage standard KAMS as necessary, pending existing actions for the ‘‘Stable’’ nuclear stabilization and packaging capabilities. disposition. material types/category.) Six of these Under decisions associated with the The evaluation determined that there nuclear materials types—(1) plutonium Final F-Canyon Plutonium Solutions would be basically no difference and uranium stored in vaults, (2) Mark– Environmental Impact Statement (DOE/ between the APSF and Building 235–F 31 targets, (3) aluminum-clad Taiwan EIS–0219, December 1994) and ROD options regarding the completion dates Research Reactor fuel and Experimental (February 22, 1995, 60 FR 9824), DOE of the capital improvements or the Breeder Reactor–II slugs, (4) plutonium– added to the FB-Line a capability to stabilization and packaging activities, 239 solutions, (5) plutonium–242 package plutonium metal within a VerDate 11 single, inert gas-filled, welded waste management facilities for storage, (or possibly up to two years sooner). It container, without the need for plastic treatment, or disposal. also allows DOE to accomplish and other organic materials. However, While the IMNM EIS indicated that plutonium stabilization and repackaging DOE concluded that adding the full potential adverse impacts to the at a lower cost by cost-effectively stabilization and packaging mission to environment, public, or workers would integrating surplus plutonium storage the FB-Line facility would delay be small for the packaging and storage activities with surplus plutonium completion of the FB-Line’s nuclear alternatives, there would be minor disposition activities. The reduced materials stabilization activities and the differences between the APSF ‘‘new capital expenditure requirements are planned shutdown of the FB-Line construction’’ and the Building 235–F more consistent with current and facility. modification. The modification to projected near-term budget resources. Building 235–F would involve work in Potential Environmental Impacts Issued at Washington, DC, January 12th, an existing and radiologically 2001. The IMNM EIS analyzed potential contaminated facility, thereby Carolyn L. Huntoon, potentially leading to a small increase impacts of alternatives for managing all Assistant Secretary for Environmental SRS nuclear materials. Summaries of over the APSF option in radiological Management. waste generation and construction the potential impacts from the [FR Doc. 01–2369 Filed 1–25–01; 8:45 am] worker exposure. Through the use of alternatives are presented in the IMNM BILLING CODE 6450–01–P EIS, Table 2–2 through Table 2–12 (pp. site administrative control limits, 2–48 through 2–58). The IMNM EIS however, no worker would be expected analysis includes potential impacts from to receive a radiological dose beyond DEPARTMENT OF ENERGY heating and repackaging activities to that allowed for radiological workers package plutonium to DOE’s storage from normal operations, or from facility Office of Science; Office of Science standard. modification work. Likewise, the Financial Assistance Program Notice DOE has reviewed the IMNM EIS and existing waste management facilities are 01–21; Advanced Modeling and determined that there are no substantial capable of handling the additional Simulation of Biological Systems changes in the proposed modification of radiological waste that would result from the Building 235–F modification. AGENCY: U.S. Department of Energy Building 235–F nor are there any (DOE). significant new circumstances or Environmentally Preferable Alternative ACTION: Notice inviting grant information relevant to environmental The IMNM EIS indicated that applications. impacts that would result from potential adverse impacts to the modifying Building 235–F. The analysis environment, public, or workers would SUMMARY: The Offices of Advanced of potential environmental impacts and be small for either the APSF or Building Scientific Computing Research (ASCR) the description of the Building 235–F 235–F options. While small increases in and Biological and Environmental option in the IMNM EIS have not radiological waste and worker Research (OBER) of the Office of changed since the Final EIS was issued. radiological exposure could be expected Science (SC), U.S. Department of The IMNM EIS indicated that there from the Building 235–F modification Energy, hereby announce interest in would be minimal environmental option over the APSF option, both receiving applications for grants in impacts from the implementation of any options would involve relatively small support of computational modeling and alternative (including the APSF or impacts, and thus neither could be simulation of biological systems. The Building 235–F options) in the areas of deemed environmentally preferable over goal of this program is to enable the use geologic, ecological, cultural, aesthetic, the other. of terascale computers to explore and scenic resources, noise, and land fundamental biological processes and use. Impacts in these areas would be Decision predict the behavior of a broad range of limited because facility modifications or DOE is amending its previous protein interactions and molecular construction of new facilities would decision (60 FR 65300) on how to pathways in prokaryotic microbes of occur within existing buildings or provide a SRS capability for the importance to DOE. This goal will be industrialized portions of the SRS. The stabilization and packaging of achieved through the creation of existing SRS workforce would support plutonium to the storage standard scientific simulation codes that are high any construction projects and other (recently revised to DOE–STD–3013– performance, scalable to hundreds of activities required to implement any of 2000). Instead of constructing a new nodes and thousands of processors, and the alternatives, and thus negligible Actinide Packaging and Storage Facility able to evolve over time and be ported socioeconomic impacts would be (APSF), DOE will modify existing space to future generations of high expected from implementing any of the within Building 235–F in F-Area. DOE performance computers. The research alternatives. will continue to use existing vault space efforts being sought under this Program Emissions of hazardous air pollutants in Building 235–F for interim storage Notice will take advantage of extensive and releases of hazardous liquid pending disposition, and existing vault information inferred from the complete effluents for any of the alternatives space in FB-Line for interim storage DNA sequence, such as the genetics and would be within applicable standards during stabilization actions. [By way of the biochemical processes available for and existing regulatory permits for the information, DOE previously had a well-characterized prokaryotic SRS facilities. Similarly, for either the decided (63 FR 43386) to store RFETS microbe; for example, Escherichia coli APSF or Building 235–F option for surplus non-pit plutonium in new vault (E. coli). This notice encourages plutonium stabilization and packaging, space established in Building 105–K, applications from the disciplines of potential transuranic waste, mixed instead of in the APSF, pending applied mathematics and computer hazardous waste, and low-level solid disposition.] science in partnership with waste generated would be handled by This decision will allow DOE to microbiology, molecular biology, existing waste management facilities. stabilize and repackage plutonium to biochemistry and structural and All of the waste types and volumes are the storage standard within the same computational biology to combine within the capability of the existing SRS time-frame as would have a new APSF information available on a well VerDate 11 characterized prokaryotic microbe with using the following web site address: sciences including functional genomics advanced mathematics and computer http://www.sc.doe.gov/production/ and structural biology as well as low science to enable this new grants/grants.html. dose radiation research; • understanding. This announcement is SUPPLEMENTARY INFORMATION: Seeks to develop new applications being issued in parallel with Program Extraordinary advances in computing of radiotracers in diagnosis and Notice 01–20, the Microbial Cell Project. technology in the past decade have set treatment and supports biomedical Together, they represent a planned first the stage for a new era in scientific engineering research focused on step in an ambitious effort to computing. Within the next five to ten fundamental studies in medical understand the functions of the proteins years, computers running at 1 to 10 imaging, biological and chemical in a prokaryotic microbial cell, to trillion floating point operations per sensors, laser medicine, new understand their interactions as they second (Tops) will become available. biocompatible materials, informatics, form pathways that carry out DOE- Using such computers, it will be and artificial organs. relevant activities, and to eventually possible to dramatically extend The scope and complexity of the build predictive models for microbial explorations of fundamental processes proposed projects will likely require activities that address DOE mission as well as advance the ability to predict close collaboration among researchers needs. the behavior of a broad range of from the biological sciences, DATES: Preapplications referencing complex biological systems. computational sciences, computer Program Notice 01–21 should be The primary mission of the Office of science, and applied mathematics received by February 21, 2001. Earlier Advanced Scientific Computing disciplines. Accordingly, this submissions will be gladly accepted. A Research is to discover, develop, and solicitation calls for the creation of response to timely preapplications will deploy the computational and scientific simulation teams, or be communicated to the applicant by networking tools that enable researchers collaborations, as the organizational March 9, 2001. in the scientific disciplines to analyze, basis for a successful application. Formal applications in response to model, simulate and predict complex Partnerships among universities, this notice should be received by 4:30 phenomena important to the national laboratories, and industry are p.m., E.D.T., April 24, 2001, to be Department of Energy. In carrying out encouraged but not required. A accepted for merit review and funding this mission, ASCR: scientific simulation team is a multi- in FY 2001. • Maintains world leadership in areas disciplinary, and perhaps multi- ADDRESSES: Preapplications referencing of scientific computing research institutional, group of people who will: Program Notice 01–21 should be sent to relevant to the missions of the • Create scientific simulation codes Dr. Walter M. Polansky, Office of Department of Energy; that take full advantage of terascale Advanced Scientific Computing • Integrates the results of advanced computers, Research, SC–32, Office of Science, U.S. scientific computing research into the • Work closely with other research Department of Energy, 19901 natural sciences and engineering; teams and centers to ensure that the best Germantown Road, Germantown, MD • Provides world class available mathematical algorithms and 20874–1290; e-mail is acceptable for supercomputer and networking facilities computer science methods are submitting preapplications using the for scientists working on problems that employed, and following address: are important to the missions of the • Manage the work of the team in a [email protected]. Department. way that will foster good Formal applications referencing The primary mission of the Office of communication and decision making. Program Notice 01–21, should be Biological and Environmental Research Biological systems and their forwarded to: U.S. Department of is to advance environmental and regulatory and metabolic pathways are Energy, Office of Science, Grants and biomedical knowledge connected to complex. The details of many biological Contracts Division, SC–64, 19901 energy production, development, and processes are not well understood, and Germantown Road, Germantown, MD use. In carrying out this mission, OBER: the resulting computations will require 20874–1290, ATTN: Program Notice 01– • Contributes to the environmental new algorithms, computational biology 21. This address must be used when remediation and restoration of tools, and extraordinary computing submitting applications by U.S. Postal contaminated environments at DOE resources. The successful development Service Express Mail or any commercial sites through basic research in of the new tools will require the mail delivery service, or when hand- bioremediation, microbial genomics, sustained efforts of multi-disciplinary carried by the applicant. and ecological science; teams, and applications of these tools FOR FURTHER INFORMATION CONTACT: Dr. • Provides new knowledge that will will require Tops-scale and beyond Walter M. Polansky, Office of Advanced widen DOE’s options for clean and supercomputers, as well as the Scientific Computing Research, SC–32, affordable energy through research in considerable expertise required to use Office of Science, U.S. Department of microbial genomics and bioinformatics; them. Although forms of these Energy, 19901 Germantown Road, • Advances our understanding of and computational tools already exist, Germantown, MD 20874–1290; finds solutions for the effects of energy considerable research in mathematics telephone: (301) 903–5995, e-mail: production and use on the environment and computer science remains to be [email protected]. through research in global climate done in order to develop reliable, Dr. John Houghton, Office of modeling and simulation, the role of robust, efficient, and widely applicable Biological and Environmental Research, clouds in climate change, carbon cycle versions of these tools. Office of Science, U.S. Department of and carbon sequestration, atmospheric Data analysis, computational Energy, 19901 Germantown Road, chemistry, and ecological science; modeling and simulation will play Germantown, MD 20874–1290; • Helps protect the health of DOE critical roles in the future of biological telephone: (301) 903-8288, e-mail: workers and the public by advancing research. Large sets of genomic data will [email protected]. our understanding of the health effects be generated by the on-going DNA The full text of Program Notice 01–21 of energy production and use through sequencing efforts at large genome is available via the World Wide Web basic research in key areas of the life centers around the world. These data VerDate 11 will be analyzed and combined with simulations are much more demanding relatively simple rules for behavioral different types of biological data, in terms of the empirical data and responses. Such models are iteratively including information on structure, computer power required and therefore, refined as more functional data and expression, and function to develop a will initially be limited to relatively constraints become available from more comprehensive understanding of small, well characterized pathways. experiments that are themselves guided biological systems. Homology-based Since both of these levels of modeling by the model’s predictions. protein structure correlations identified depend on having the (nearly) complete Since such modeling depends only on by pattern searches will be used to parts lists provided by the fully the nature of the reactants and products predict the structures of the proteins annotated genome sequences, combined (i.e., the stoichiometry) of the metabolic coded by the new genome sequences with gene function, expression transformations, rather than the rates of and will be invaluable for ascertaining information and phenotypic data about these reactions (kinetics), most of the protein function and for identifying an organism, the focus of this necessary data for building the model more distant homologies than are solicitation will be on E. coli or another can be derived directly from annotated possible by simple sequence well-characterized and studied genomes, in some cases using artificial comparisons. For selected biochemical prokaryotic microbe. intelligence based pathway synthesis processes, computational modeling will (1) Molecular simulations of protein algorithms. These data are typically be used for a range of applications, from function and macromolecular encoded in a ‘‘stoichiometry matrix’’ elucidating the mechanisms of interactions. The ultimate biological relating specific reaction products to enzymatic reactions to identifying the models would be molecular-level metabolic reactions. Numerical analysis energetic principles underlying simulations of each biochemical of this matrix can identify the entire macromolecular interactions. Computer process. There are many challenges to repertoire of theoretically possible models of entire cells and microbial molecular-level simulations of metabolic capabilities of a given ecosystems will also use the biological processes, including the large genotype, for example, what nutrients understanding gained about size of biomolecules and the wide range are essential and what metabolic biomolecular processes to predict likely of time scales of many biological pathways are non-redundant. Such behaviors of organisms under different processes, as well as the subtle information, although qualitative, has conditions. energetics and complex milieu of enormous potential value. It will allow A goal for the research solicited here biochemical reactions. Moreover, many the inference of phenotypic properties is to develop a predictive understanding biochemical reactions occur far from directly from the functionally annotated of biological systems using a well equilibrium and are regulated by both genotype, help in the optimization of characterized prokaryotic microbial cell, transport of the reactants and product yield in bio-reactors, and for example, E. coli, as a model system. subsequent processing of the products. provide a predictive basis for Given the immense complexity of even Finally, there remains a wide gulf engineering organisms with novel the simplest microbes, fully predictive between the detailed chemical data capabilities. Additionally, such analysis models that provide quantitatively needed for initiating and validating can be used to improve and validate accurate estimates of each chemical biomolecular simulations and the data tentative functional annotations. Even component of a cell will remain a available on many biological processes in the absence of stoichiometric data, challenge for subsequent generations of and environments. Despite these mathematical analysis of metabolic researchers. Hence, in the foreseeable challenges, there are a vast number of networks can shed light on overall future, the modeling of cellular biochemical processes for which biological function. A number of processes will instead be performed at chemical simulations will have a major successful models have already been a level beyond that of the individual impact on our understanding. These developed for E. coli using both chemical reactions, perhaps at the level problems include the elucidation of the stoichiometric data, based on a network of functional building blocks that can be energetic factors underlying protein- analysis, and constraint-based pieced together or linked into higher protein or protein-DNA interactions and approaches. order models. At this level, cellular the dissection of the catalytic function Unlike the kinetic pathway described pathways are described either of certain enzymes. The promise of such below, computing speed is not typically qualitatively as being present or absent, modeling studies is rapidly growing as a limiting factor in molecular pathway or quantitatively, in terms of the average a result of the development of linear- analysis. Instead, the primary bottleneck concentrations and rates of activity scaling computational chemical to progress is the availability of derived from experimental data. Despite methods and molecular modeling functionally annotated genomes and the their lack of chemical detail, such software for massively parallel human talent trained in both the models will provide a powerful tool for computers. Additionally, molecular biological sciences and the art of integrating and analyzing the very large modeling will be used to determine the developing and applying such new biological data sets and, under principles that underlie protein-protein mathematical models. The choice of a some conditions, predicting cellular interactions, and ultimately to predict well-characterized prokaryotic organism behavior under changing conditions. likely protein binding sites. as a model biological system for this Just as importantly, these high level (2) Semi-quantitative simulations of solicitation minimizes the challenges models will provide a means of metabolic networks. This modeling associated with the first bottleneck. inducing and testing the general approach follows the engineering (3) Quantitative kinetic models of principles of cellular function. tradition of making maximal use of biochemical pathways. Although the Three levels of modeling are included limited information by combining metabolic network modeling described in this solicitation: (1) Molecular highly simplified models with above can provide useful qualitative simulations of protein function and successive constraints to identify an information on possible behavioral macromolecular interactions, (2) semi- ‘‘envelope’’ of expected behaviors of the characteristics of organisms, a fully quantitative simulations of metabolic system under different conditions. A predictive understanding of biological networks in whole cells, and (3) fundamental tenet of such modeling is processes will require quantitative quantitative kinetic models of that the very complex molecular details information about the dynamics of each biochemical pathways. The latter of biology combine to form robust and sub-process. In other words, network VerDate 11 analysis can suggest what metabolic expression have been ascribed to the Links to some of the vast amount of transformations may be possible, but inherently stochastic fluctuations in the information available on E. coli can be full kinetic details are required to concentrations of very small numbers of found at http://genprotec.mbl.edu/start determine which pathways are most regulatory signals. and http://web.bham.ac.uk/bcm4ght6/ important under the given conditions. Overall, both the kinetic models and res.html. Such models will require detailed the metabolic network analysis will The mathematical and computer empirical data, including in vivo provide a means of combining and science challenges in this effort span a reaction rates and substrate evaluating the consistency of large sets broad range of the current research concentrations for each step in the of biological data. Each requires detailed topics in both fields. A few examples of biological system to be simulated. functional annotation of whole genomes possible areas include: advanced Additionally, these simulations are and well as phenotypic data under a techniques for data fusion; algorithms highly computationally demanding; for wide variety of conditions. for solution of low dimensional example, the simulation of a regulatory In a parallel solicitation, the Microbial dynamical systems in the presence of circuit involving only several dozen Cell Project (see Program Notice 01–20) uncertainty; applications of parameters required the use of a parallel supports key DOE missions by building computational geometry and topology to supercomputer. These experimental and on the successful DOE Microbial pattern recognition and analysis; computational requirements will Genome Program that has furnished advanced concepts in discrete state prohibit such quantitative simulations microbial DNA sequence information on machines; and control theory. It must, of whole cells in the foreseeable future. microbes relevant to environmental however, be emphasized that the Nevertheless, for selected critical cell remediation, global carbon sequestration preceding list is only a list of possible subsystems, such simulations offer the (e.g., CO2 fixation), complex polymer examples and does not reflect any promise of quantitative predictions of degradation (e.g., cellulose and lignins), prioritization of areas. and energy production (fuels, cellular response and will constitute a Collaboration and Coordination rigorous validation of the completeness chemicals, and chemical feedstocks). of our understanding the processes These microbial genome sequences Applicants are encouraged to under investigation. provide a finite set of ‘‘working parts’’ collaborate with researchers in other Kinetic models have been applied to for a cell and the challenge now is to institutions, such as: universities, a handful of specific cellular pathways understand how these parts are industry, non-profit organizations, that demonstrate both the benefits and assembled into functional pathways and Federal laboratories and Federally technical challenges of such networks to accomplish activities of Funded Research and Development simulations. One of the most complex interest to the DOE. The traditional Centers (FFRDCs), including the DOE examples to date has been a full kinetic reductionist experimental approach has National Laboratories, where analysis of the lytic versus lysogenic defined specific steps or stages within appropriate, and to include cost sharing pathways in phage λ infected E. coli many physiological processes; however, wherever feasible. Further information cells. The heart of the decision circuitry the availability of whole genomes on preparation of collaborative for this pathway contains only four affords the opportunity to integrate proposals is available in the Application promoter sites modulated by five gene these individual pathways into a larger Guide for the Office of Science transcripts, yet the kinetic model physiological or whole organism Financial Assistance Program that is required nearly forty empirical rate framework. The Microbial Cell Project available via the World Wide Web at: constants and a number of other seeks to integrate available information http://www.science.doe.gov/production/ parameters. Additionally, to be about individual processes and grants/Colab.html. computationally tractable, this model regulatory complexes to understand the Preapplications involved a number of simplifying intracellular environment, in which assumptions, including approximating these pathways and networks exist and Potential applicants are strongly the cell as a well-stirred homogeneous function. The DOE Microbial Cell encouraged to submit a brief mixture. Despite these assumptions and Project is part of a coordinated Federal preapplication that consists of two to the large number of empirical effort called the Microbe Project three pages of narrative describing the parameters this model yielded involving elements from several other research objectives, the technical reasonably accurate results for the lytic/ Federal agencies. The long-term goal is approach(es), and the proposed team lysogenic fractions at different levels of that research funded in this program members and their expertise. The intent viral infection. and in the Microbial Cell Project will in requesting a preapplication is to save An important outcome of this converge so that simulations and the time and effort of applicants in previous work is to highlight the models can be developed in organisms preparing and submitting a formal significant differences between the and for biochemical pathways important project application that may be modeling methodologies necessary for for the DOE mission. inappropriate for the program. biochemical pathways and those used This notice takes advantage of Preapplications will be reviewed for macroscopic chemical processes decades of research on E. coli (or a relative to the scope and research needs (e.g., in optimizing industrial chemical similarly well characterized prokaryotic outlined in the summary paragraph and processes.) In the latter the chemical microbe) providing much of the in the SUPPLEMENTARY INFORMATION. The concentrations can be assumed to be biological information needed to begin preapplication should identify, on the continuous and therefore the kinetics developing more comprehensive models cover sheet, the title of the project, the can be simulated using ordinary of biological systems. It is anticipated institution, principal investigator name, differential equations. In contrast, the that the applied mathematicians and telephone, fax, and e-mail address. No very small numbers of individual computer scientists will need to partner budget information or biographical data signaling molecules in biological with biologists in the initial phases of need be included, nor is an institutional regulatory pathways require the use of algorithm development, as well as in the endorsement necessary. A response to discrete stochastic simulations. Indeed, design of biological tests to validate each timely preapplication will be a number of seemingly non- models that are developed, including communicated to the Principal deterministic features in gene predictions made using these models. Investigator by March 9, 2001. VerDate 11 Program Funding The evaluation will include program DOE Joint Genome Institute Microbial policy factors such as the relevance of Web Page—http://www.jgi.doe.gov/ It is anticipated that up to $2 million _ will be available for all awards in Fiscal the proposed research to the terms of JGI microbial/html/ GenBank Home Page— Year 2001. Multiple year funding is the announcement and the agency’s http://www.ncbi.nlm.nih.gov/ expected, also contingent on availability programmatic needs. Note, external peer Human Genome Home Page— of funds and progress of the research; reviewers are selected with regard to both their scientific expertise and the http://www.ornl.gov/hgmis pending the availability of future absence of conflict-of-interest issues. funding, it is anticipated that this The Catalog of Federal Domestic Non-federal reviewers will often be initiative will reflect a long term Assistance Number for this program is used, and submission of an application commitment to understanding the 81.049, and the solicitation control number is constitutes agreement that this is ERFAP 10 CFR Part 605. workings of a microbial cell. Awards are acceptable to the investigator(s) and the expected to range from $250,000 to Issued in Washington, D.C. on January 16, submitting institution. $600,000 per year with terms of one to 2001. three years. The DOE is under no Submission Information John Rodney Clark, obligation to pay for any costs The Project Description must be 25 Associate Director of Science for Resource Management. associated with the preparation or pages or less, exclusive of attachments. submission of an application. DOE It must contain an abstract or project [FR Doc. 01–2372 Filed 1–25–01; 8:45 am] reserves the right to fund, in whole or summary on a separate page with the BILLING CODE 6450–01–P in part, any, all, or none of the name of the applicant, mailing address, applications submitted in response to phone, FAX and E-mail listed. The this Notice. Applications received by application must include letters of DEPARTMENT OF ENERGY the Office of Science under its normal intent from collaborators (briefly competitive application mechanisms Office of Science Financial Assistance describing the intended contribution of Program Notice 01–18; Low Dose may also be deemed appropriate for each to the research), and short consideration under this announcement Radiation Research Program—Basic curriculum vitaes, consistent with NIH Research and may be funded under this program. guidelines, for the applicant and any co- Merit Review PIs. AGENCY: U.S. Department of Energy. To provide a consistent format for the ACTION: Notice inviting grant Applications will be subjected to submission, review and solicitation of applications. scientific merit review (peer review) and grant applications submitted under this will be evaluated against the following notice, the preparation and submission SUMMARY: The Office of Biological and evaluation criteria which are listed in of grant applications must follow the Environmental Research (OBER) of the descending order of importance codified guidelines given in the Application Office of Science (SC), U.S. Department at 10 CFR 605.10(d): Guide for the Office of Science of Energy (DOE), hereby announces 1. Scientific and/or Technical Merit of Financial Assistance Program, 10 CFR their interest in receiving grant the Project; Part 605. Access to SC’s Financial applications for research that supports 2. Appropriateness of the Proposed Assistance Application Guide is the DOE/OBER Low Dose Radiation Method or Approach; possible via the World Wide Web at: Research Program. 3. Competency of Applicant’s http://www.sc.doe.gov/production/ Research is sought by the DOE/OBER Personnel and Adequacy of Proposed grants/grants.html. Low Dose Radiation Research Program Resources; DOE policy requires that potential for studies involving low LET radiation, 4. Reasonableness and applicants adhere to 10 CFR part 745 in the following areas: Appropriateness of the Proposed ‘‘Protection of Human Subjects’’ (if (1) Bystander effects. Budget. applicable), or such later revision of (2) Genomic instability. In addition to the above evaluation those guidelines as may be published in (3) Adaptive responses. (4) Endogenous oxidative damage criteria, applications will also be the Federal Register. versus low dose radiation-induced evaluated on the following: The Office of Science, as part of its grant regulations (10 CFR 605.11(b)) damage. 5. The robustness of the requires that a grantee funded by SC and (5) Genetic factors that affect organizational framework if a performing research involving individual susceptibility to low dose consortium is proposed; recombinant DNA molecules and/or radiation. The evaluation under item 2, organisms and viruses containing Applications for well-justified Appropriateness of the Proposed recombinant DNA molecules shall research in other areas (see Method or Approach, will also consider comply with the NIH ‘‘Guidelines for Supplementary Information below) will the following elements: Research Involving Recombinant DNA also be accepted. These Programs use (a) clarity of the plan in detailing Molecules,’’ which is available via the modern molecular tools to develop a areas of work to be addressed by World Wide Web at: http:// better scientific basis for understanding biologists, computational scientists, www.niehs.nih.gov/odhsb/biosafe/nih/ exposures and risks to humans from low applied mathematicians, computer rdna-apr98.pdf, (59 FR 34496, July 5, doses of low LET radiation that can be scientists and computer programmers; 1994), or such later revision of those used to achieve acceptable levels of (b) quality of the plan for effective guidelines as may be published in the human health protection at a reasonable collaboration among participants; Federal Register. cost. (c) viability of the plan for verifying Other useful web sites include: DATES: Potential applicants should and validating the models developed, MCP Home Page—http:// submit a one page preapplication including verification using experiment microbialcellproject.org referencing Program Notice 01–18 by results; and Microbial Genome Program Home 4:30 P.M. E.S.T., February 15, 2001. (d) quality and clarity of the proposed Page—http://www.er.doe.gov/ Receipt of preapplications sent by email work schedule and project deliverables. production/ober/microbial.html will be acknowledged by a return VerDate 11 message. An email response to characterization of specific biological • Characterize the induction of preapplications discussing the potential responses, e.g., bystander effects, etc., genomic instability by low doses of low program relevance of a formal should identify how the response of LET radiation. application generally will be interest meets these criteria. There is • Determine the relationship between communicated by February 22, 2001. also considerable interest in radiation dose and the induction of The deadline for receipt of formal determining whether these biological genomic instability by low doses of low applications is 4:30 P.M., E.D.T., May responses can be extended from studies LET radiation. 15, 2001, in order to be accepted for in isolated cells to tissues or to more • Quantify the induction and extent merit review and to permit timely complex tissue-like systems. These of genomic instability induced by low consideration for award in FY 2001 and responses are discussed here: doses of low LET radiation. FY 2002. Bystander effects—The biological • Determine the mechanism for the ADDRESSES: Preapplications referencing response observed in cells that are not induction of genomic instability by low Program Notice 01–18, should be sent directly traversed by radiation but are LET radiation. by E-mail to neighbors of an irradiated cell. Adaptive Response—The ability of a [email protected]. Bystanders have been shown to respond low dose of radiation to induce cellular Preapplications will also be accepted if with gene induction and/or production changes that perturb the level of mailed to the following address: Ms. of potential genetic and carcinogenic subsequent radiation-induced or Joanne Corcoran, Office of Biological changes. It is important for the DOE/ spontaneous damage. If low doses of and Environmental Research, SC–72, OBER Low Dose program to determine radiation regularly and predictably U.S. Department of Energy, 19901 if these so-called bystander effects can induce a protective response in cells to Germantown Road, Germantown, MD be induced by exposure to low LET subsequent low doses of radiation, or to 20874–1290. (linear energy transfer) radiation spontaneous damage, this could have a Formal applications, referencing delivered at low total doses or dose- substantial impact on estimates of Program Notice 01–18, should be sent rates. If such an effect is demonstrated adverse health risk from low dose to: U.S. Department of Energy, Office of and quantifiable, it could, potentially, radiation. The generality and the extent Science, Grants and Contracts Division, increase estimates of risk from low dose of this apparent adaptive response in SC–64, 19901 Germantown Road, radiation. This bystander effect, in cells irradiated with small doses of Germantown, MD 20874–1290, ATTN: essence, ‘‘amplifies’’ the biological ionizing radiation needs to be Program Notice 01–18. This address effects (and the effective radiation dose) quantified. Studies of the adaptive must be used when submitting of a low dose exposure by effectively response typically focus on cellular applications by U.S. Postal Service increasing the number of cells that responses to high ‘‘test’’ doses of Express, commercial mail delivery experience adverse effects to a number radiation following low ‘‘priming’’ service, or when hand carried by the greater than the number of cells directly doses. However, this solicitation is applicant. exposed to radiation. Research is sought mainly interested in studying the lower to: limits for test doses and endpoints that FOR FURTHER INFORMATION CONTACT: For • Characterize the nature of bystander show adaptive response phenomenon. general information, contact Dr. David effects at low doses of low LET Research is sought to: Thomassen, telephone: (301) 903–9817, radiation. • Characterize the adaptive response E-mail: • Determine the relationship between induced by low doses of low LET [email protected], radiation dose and the bystander effects radiation. Office of Biological and Environmental at low doses of low LET radiation. • Determine the relationship between Research, SC–72, U.S. Department of • Quantify the induction and extent radiation dose and the adaptive Energy, 19901 Germantown Road, of the bystander effect at low doses of response induced by low doses of low Germantown, MD 20874–1290. low LET radiation. LET radiation. SUPPLEMENTARY INFORMATION: • Determine the mechanism of the • Quantify the induction and extent low LET radiation-induced bystander Description of Research Program Areas of the adaptive response induced by low effect. doses of low LET radiation. The DOE/OBER Low Dose Radiation Genomic Instability—The loss of • Determine the mechanism for the Research Program is faced with the genetic stability, a key event in the induction of adaptive responses by low challenge of conducting research that development of cancer, induced by LET radiation. can be used to inform the development radiation and expressed as genetic In addition to the three specific of future national radiation risk policy damage many cell divisions after the biological responses just described, the for the public and the workplace. For insult is administered. Current evidence Program has great interest in the present solicitation, DOE/OBER is suggests that DNA repair and processing understanding endogenous versus low chiefly concerned with very low doses of radiation damage can lead to dose radiation induced damage, and the of low LET radiation (x and gamma instability in the progeny of irradiated mechanisms underlying individual rays). There are three biological cells and that susceptibility to genetic susceptibility to radiation responses of specific interest for this instability is under genetic control. damage. solicitation that are most likely to meet However, there is virtually no Endogenous versus low dose radiation the criteria outlined below. These information on the underlying induced damage. A key element of this include bystander effects, induction of mechanisms and how the processing of research program will continue to be the genomic instability, and adaptive damage leads to instability in the development of an understanding of the responses. Applications proposing the progeny of irradiated cells several similarities and differences between use of additional biological responses generations later. Further, while there endogenous oxidative damage and will be considered only if the biological has been considerable speculation about damage induced by low levels of responses proposed for investigation the role of such instability in radiation- ionizing radiation, as well as an can be reasonably demonstrated to meet induced cancer, its role in this process understanding of the health risks from the criteria outlined below. All remains to be determined. Research is both. This information will underpin applications focused on the sought to: our interpretation of the biological VerDate 11 effects of exposure to low doses of Research in these areas will strongly genetics and computational biology ionizing radiation. Although always complement ongoing initiatives at the approaches will be required to estimate needed, this information was not National Institutes of Health (NIH). the potential impact on estimates of previously attainable because critical DOE/OBER staff will work with staff at population and individual risk. Genetic resources and technologies were not the NIH to ensure that research in the epidemiology approaches will also be available. Today, technologies and Low Dose Radiation Research Program needed to relate specific polymorphisms resources such as those developed as is complementary to and not duplicative and combinations of polymorphisms part of the human genome program, e.g., of research funded by NIH programs. with cancer risk. Inbred mouse strains coupled capillary electrophoresis and The National Human Genome and other model organisms with well- mass spectrometry systems and DNA Research Institute (NHGRI) is funding characterized differences in sequence information, have the research to identify common variants in susceptibility to radiation-induced potential to detect and characterize the coding regions of the majority of cancer are also important tools for small differences in damage induced by human genes identified during the next identifying significant polymorphisms. normal oxidative processes and low five years with the goal of developing a Direct assessment of the biological doses of radiation. A significant catalog of all common variants. The significance of candidate ‘‘susceptibility investment in technology development NHGRI is also working to create a map genes’’ can also be undertaken using will be required to expand current of at least 100,000 single nucleotide animal models such as knockout and capabilities for identifying and polymorphisms (SNPs), the most knock-in mice, mice with specific genes quantifying small amounts of oxidative common polymorphisms in the human removed or added. or radiation induced damage. Radically genome representing single base-pair Background information on the Low new technologies are likely not needed differences between two copies of the Dose Radiation Research Program can be but current technologies will need to be same gene. These SNPs will be a boon found in the research program plan at modified. Methodologies having high for mapping complex traits such as http://www.lowdose.org/index.html. A sensitivity as well as high signal-to- cancer, cancer susceptibility, and list of currently funded projects can be noise ratio will be critical in this effort. susceptibility to low dose radiation. found at http://lowdose.org/ A significant research effort will be The National Institute of research.html. required to characterize and quantify Environmental Health Science (NIEHS) Not all research on the biological normal oxidative damage in cells and is funding research as part of its effects of low doses of radiation will be the incremental increases induced by Environmental Genome Project to equally useful for the development of low doses of ionizing radiation. understand the impact and interaction radiation risk policy, though the path Preference will be given to the of environmental exposures on human from basic radiation biology research to formation of partnerships between disease. The NIEHS project includes radiation risk policy is admittedly not laboratories involved in characterization efforts to understand genetic clear at this time. It is our belief that the and quantification of radiation and susceptibility to environmental agents most useful research will focus on oxidative damage and groups with that will allow more precise biological responses that: expertise in or developing new identification of the environmental • Are known to be induced at low technology to facilitate progress in both agents that cause disease and the true doses of radiation, areas simultaneously. Although risks of exposures. The principal focus • Have the potential to increase or qualitative descriptions of differences of NIEHS research will be on chemicals, decrease the biological effects of and/or similarities between the types of so the focus on radiation in the Low radiation if they occur at low doses of damage induced under both conditions Dose Radiation Research Program is radiation, will be useful in the design and highly complementary. Initially, the • Have the potential to directly interpretation of experiments in other Environmental Genome Project will impact (i.e., increase or decrease) the parts of the program, levels of damage focus on categories of genes including: subsequent development of cancer or induced by normal oxidative processes xenobiotic metabolism and other harmful health impacts, and incremental increases due to low detoxification genes, hormone metabolic • Are potentially quantifiable, and dose radiation should be quantified. genes, receptor genes, DNA repair genes, • Could potentially be linked to the Genetic factors that affect individual cell cycle genes, cell death control development of a biologically based susceptibility to low dose radiation. The genes, genes mediating immune and model for radiation risk (see DOE Office Low Dose Radiation Research Program inflammatory responses, genes of Science Program Notice 01–17). is interested in determining if genetic mediating nutritional factors, genes Alternatively, a biological response of differences exist making some involved in oxidative processes and interest could meet all of the above individuals more sensitive to radiation- genes for signal transduction systems. criteria only at high doses but may induced damage since these differences Identification of potential actually be absent (as opposed to simply could result in sensitive individuals or susceptibility genes and polymorphisms undetectable) at low doses of radiation. sub-populations that are at increased in those genes is only the first (and Since the mechanisms of action may be risk for radiation-induced cancer. perhaps the easiest) step in the program different after high versus low doses of Research should focus on: to characterize and understand genetic radiation, such studies would help • Identification of genes involved in susceptibility. Determining the define these mechanisms. Defining the the recognition, repair, and processing biological significance of these genetic unique doses where these mechanisms of damage induced by ionizing polymorphisms with respect to cancer shift is important. radiation. and radiation sensitivity is the ultimate The focus of research in the Low Dose • Determining the frequencies of goal and the more difficult task. The Radiation Research Program should be polymorphisms in these genes in the international human genome project, on doses of low linear energy transfer population. structural biology research, and the (LET) radiation that are at or below • Determining the biological NHGRI and NIEHS efforts described current workplace exposure limits. In significance of these polymorphisms above play important roles determining general, research in this program should with respect to cancer and radiation which polymorphisms are most likely to focus on total radiation doses that are sensitivity. influence gene function. Population less than or equal to 10 rads. Some VerDate 11 experiments will likely involve selected Preapplication The Project Description must be 25 exposures to higher doses of radiation A preapplication should be pages or less, exclusive of attachments. for comparisons with previous submitted. The Preapplication should Applications with Project Descriptions experiments or for determining the contain a title, list of investigators, longer than 25 pages will be returned to validity of extrapolation methods address, telephone, fax and E-mail applicants and will not be scientifically previously used to estimate the effects address of the Principal Investigator, reviewed. The application must contain of low doses of radiation from and no more than a one page summary an abstract or project summary, letters observations made at high doses. of the proposed research, including of intent from collaborators, and short Research that principally focuses on project objectives and methods of curriculum vitas consistent with NIH radiation doses greater than 10 rads, accomplishment. Responses to the guidelines. high LET radiation or non-ionizing preapplications, encouraging or Adherence to type size and line radiation will not be considered without discouraging formal applications, will spacing requirements is necessary for substantial justification. generally be communicated within 7 several reasons. No applicants should The program is currently funding a days of receipt. Notification of a have the advantage, or by using small number of projects to develop micro- successful preapplication is not an type, of providing more text in their irradiation devices capable of delivering indication that an award will be made applications. Small type may also make low doses of low LET radiation to in response to the formal application. it difficult for reviewers to read the individual cells or to specific parts of application. Applications must have 1- individual cells. For links to currently Merit and Relevance Review inch margins at the top, bottom, and on funded ‘‘microbeam’’ projects see http:/ Applications will be subjected to each side. Type sizes must be 10 point /lowdose.org/99meeting/abstracts/ scientific merit review (peer review) and or larger. Line spacing is at the tool.html—projects 26, 28, 29 and http:/ will be evaluated against the following discretion of the applicant but there /lowdose.org/99meeting/abstracts/ evaluation criteria listed in descending must be no more than 6 lines per response.html—project 3. Investigators order of importance as codified at 10 vertical inch of text. Pages should be 1 ″ ″ are strongly encouraged to use these or CFR 605.10(d): standard 8 ⁄2 x 11 (or metric A4, i.e., similar tools, as appropriate, in the 1. Scientific and/or Technical Merit of 210 mm x 297 mm). design and conduct of their research. the Project. Applicants are expected to use the Funds are available to assist in the 2. Appropriateness of the Proposed following ordered format to prepare collaborative use of these or comparable Method or Approach. Applications in addition to following tools or, in some cases, to provide low- 3. Competency of Applicant’s instructions in the Application Guide cost micro-irradiation devices to Personnel and Adequacy of Proposed for the Office of Science Financial individual investigators. Resources. Assistance Program. Applications must 4. Reasonableness and be written in English, with all budgets Program Funding Appropriateness of the Proposed in U.S. dollars. Budget. • Face Page (DOE F 4650.2 (10–91)). It is anticipated that up to $4.0 • million will be available from DOE/ The evaluation will include program Project Abstract (no more than one policy factors such as the relevance of page). OBER for new grant awards during FY • 2001 and FY 2002, contingent upon the the proposed research to the terms of Budgets for each year and a availability of funds. Multiple year the announcement and the Department’s summary budget page for the entire programmatic needs. External peer project period (using DOE F 4620.1). funding of grant awards is expected, and • is also contingent upon the availability reviewers are selected with regard to Budget Explanation. • Budgets and Budget explanation for of appropriated funds, progress of the both their scientific expertise and the each collaborative subproject, if any. research, and continuing program need. absence of conflict-of-interest issues. • Project Description (The Project It is expected that most awards will be Non-federal reviewers may be used, and Description must be 25 pages or less, from 1 to 5 years and will range from submission of an application constitutes exclusive of attachments. Applications $200,000 to $400,000 per year (total agreement that this is acceptable to the with Project Descriptions longer than 25 costs). Applications requesting more investigator(s) and the submitting pages will be returned to applicants and than 3 years of funding will need to institution. will not be scientifically reviewed.) clearly justify the benefits of the Applications • Goals. additional years of research to the goals • Background. of the low dose radiation research (Please Note Critical Information Below • on Page Limits) Research Plan. program. Please note that funds are • Preliminary Studies and progress (if available from DOE to assist in the Information about the development applicable). collaborative use of certain microbeam and submission of applications, • Research Design and irradiators. eligibility, limitations, evaluation, Methodologies. selection process, and other policies and • Collaboration Literature Cited. procedures may be found in the • Collaborative Arrangements (if Applicants are encouraged to Application Guide for the Office of applicable). collaborate with researchers in other Science Financial Assistance Program • Biographical Sketches (limit 2 pages institutions, such as universities, and 10 CFR Part 605. Electronic access per senior investigator). industry, non-profit organizations, to the Guide and required forms is made • Description of Facilities and federal laboratories and Federally available via the World Wide Web at: Resources. Funded Research and Development http://www.er.doe.gov/production/ • Current and Pending Support for Centers (FFRDCs), including the DOE grants/grants.html. DOE is under no each senior investigator. National Laboratories, where obligation to pay for any costs The Office of Science, as part of its appropriate, and to incorporate cost associated with the preparation or grant regulations, requires at 10 CFR sharing and/or consortia wherever submission of applications if an award 605.11(b) that a recipient receiving a feasible. is not made. grant to perform research involving VerDate 11 recombinant DNA molecules and/or or electronically to: personal relationships, and organisms and viruses containing [email protected]. accountability on the part of DOE recombinant DNA molecules shall FOR FURTHER INFORMATION CONTACT: managers. The importance of these comply with the National Institutes of Copies of the Proposed Revised Public elements has been reaffirmed and Health ‘‘Guidelines for Research Participation and Community Relations strengthened in the proposed revisions. Involving Recombinant DNA Policy are available on DOE’s World Proposed Revised Policy Molecules’’, which is available via the Wide Web Site at http:// world wide web at: http:// Under the proposed revised Public www.energy.gov, under ‘‘Headlines.’’ Participation and Community Relations www.niehs.nih.gov/odhsb/biosafe/nih/ Copies may also be obtained by writing rdna-apr98.pdf, (59 FR 34496, July 5, Policy, public participation would be or calling: The Center for Environmental defined as open, ongoing two-way 1994), or such later revision of those Management Information, P.O. Box guidelines as may be published in the communication, both formal and 23769, Washington, DC 20026, Federal Register. informal, between DOE and its Telephone: 1–800–736–3282 (in stakeholders concerning DOE’s missions (The Catalog of Federal Domestic Assistance Washington, DC: 202–863–5084). Number for this program is 81.049, and the and activities. The Policy would For further information on the recognize that effective public solicitation control number is ERFAP 10 CFR purpose and substance of DOE’s Public Part 605) participation is at the core of good Participation and Community Relations Dated: January 22, 2001. community relations, which are Policy, please write or call: Ms. essential for DOE facilities to achieve John Rodney Clark, Elizabeth A. Nolan, Senior Advisor, Associate Director of Science for Resource their missions. Under this Policy, DOE Office of Congressional & would actively seek, consider, and Management. Intergovernmental Affairs (CI–1), U.S. [FR Doc. 01–2371 Filed 1–25–01; 8:45 am] incorporate or otherwise respond in a Department of Energy, 1000 timely manner to the views of its BILLING CODE 6450–01–P Independence Avenue, SW., stakeholders and affected communities Washington, DC 20585, Telephone: in making its decisions. This Policy 202–586–7328. DEPARTMENT OF ENERGY would function as a framework within SUPPLEMENTARY INFORMATION: which all DOE programs, including Revised Public Participation Policy Background programs of the National Nuclear Guidance Security Administration, would operate. DOE issued its Public Participation The proposed Public Participation AGENCY: Department of Energy. Policy (DOE P 1210.1) on July 29, 1994. and Community Relations Policy is ACTION: Notice of availability and The Policy was in the form of an being released for public comment prior solicitation of comments. internal directive that provided policy to DOE’s decision to approve any of the guidance for DOE officials. Under DOE’s recommended changes. SUMMARY: The Department of Energy Directives System, all documents must (DOE) today makes available, and is be reviewed periodically for currency Issued in Washington D.C., January 16, 2001. soliciting public comments on, and appropriateness. proposed revisions to its Public A Task Force of DOE headquarters Linda Lingle, Participation Policy internal directive program and field site managers actively Principal Deputy Assistant Secretary, Office (DOE P 1210.1, issued July 29, 1994). involved in public participation of Congressional and Intergovernmental Affairs. The proposed revisions are intended to activities was convened to review the clarify and update the policy guidance policy. The Task Force proposed [FR Doc. 01–2370 Filed 1–25–01; 8:45 am] in the directive and to expand it to revisions to clarify and update the BILLING CODE 6450–01–P incorporate findings and policy to reflect current practices and recommendations of the Secretary of the lessons of six years’ experience with DEPARTMENT OF ENERGY Energy Advisory Board’s Openness public participation. Advisory Panel on improving relations At about the same time, the Openness between DOE facilities and their host Federal Energy Regulatory Advisory Panel of the Secretary of Commission communities. Under DOE’s Directives Energy Advisory Board undertook a System, all documents must be review of DOE’s relationships with the [Docket No. EC01–57–000, et al.] reviewed periodically for currency and communities surrounding its The Connecticut Light and Power appropriateness. This policy is not laboratories and facilities to assess how Company, et al.; Electric Rate and intended to affect requirements imposed DOE is perceived as a neighbor, what it Corporate Regulation Filings by law, regulation, or contractual is doing well, and what it could do agreement; neither does it expand or better. The Panel’s initial review January 19, 2001. limit any rights available to the public focused on Lawrence Berkeley National Take notice that the following filings under current law. Laboratory and Lawrence Livermore have been made with the Commission: DATES: The public comment period will National Laboratory, both in California, extend to April 30, 2001. Comments and on the Fernald Plant, in Ohio. On 1. The Connecticut Light and Power received after that date will be November 17, 2000 the Openness Company considered to the extent practicable. Advisory Panel issued its report, titled [Docket Nos. EC01–57–000 and ER01–947– ADDRESSES: Written comments may be Relations between DOE Facilities and 000] provided by mail to: U.S. Department of their Host Communities: A Pilot Take notice that on January 12, 2001, Energy, Nevada Operations Office, Review, which presented Findings and The Connecticut Light and Power Office of Public Affairs and Information, Recommendations on improving Company (Applicant) tendered for filing P.O. Box 98518—Attn: DOE PPP community relations. As keys to an Application for approval under Comments, Las Vegas, NV 89193–8518. success, the Openness Advisory Panel section 203 of the Federal Power Act for by fax to (702) 295–0154—Attn: DOE identified full, open, timely, two-way approval of the disposition of PPP Comments communication, the building of positive jurisdictional facilities that will result VerDate 11 from the sale of generating units in the accordance with the Commission’s the State of New Hampshire, and the 250–MW South Meadow generating Letter Order of December 29, 2000 in Executive Director and Secretary of the station to the Connecticut Resources this proceeding. This filing is made New Hampshire Public Utilities Recovery Authority (CRRA). Applicant pursuant to Section 205 of the Federal Commission. also seeks acceptance under section 205 Power Act. Comment date: February 6, 2001, in of the Federal Power Act of an Copies of this compliance filing have accordance with Standard Paragraph E Interconnection and Operation been served on the Public Utilities at the end of this notice. Agreement relating to those facilities. Commission of Ohio and parties of 6. Jersey Central Power & Light Applicant requests an effective date record. Company, Metropolitan Edison for the Interconnection and Operation Comment date: February 6, 2001, in Company, and Pennsylvania Electric Agreement of February 28, 2001, and accordance with Standard Paragraph E Company states that copies of this filing are being at the end of this notice. mailed to CRRA and the Connecticut 4. Allegheny Energy Supply Company, [Docket No. ER01–950–000] Department of Public Utility Control. LLC Take notice that on January 16, 2001, Comment date: February 2, 2001, in Jersey Central Power & Light Company, accordance with Standard Paragraph E [Docket No. ER01–944–000] Metropolitan Edison Company and at the end of this notice. Take notice that on January 12, 2001, Pennsylvania Electric Company Allegheny Energy Supply Company, 2. CPV Atlantic, Ltd. (individually doing business as GPU LLC (AE Supply) filed with the Federal Energy) submitted for filing a Notice of [Docket No. EG01–103–000] Energy Regulatory Commission a letter Cancellation of the Service Agreement Take notice that on January 17, 2001, approving its membership in the between GPU Energy and New Energy CPV Atlantic, Ltd. (CPV Atlantic or Western Systems Power Pool (WSPP). Ventures, L.L.C. (now AES NewEnergy, AE Supply requests that the Applicant), c/o Competitive Power Inc.), FERC Electric Tariff, Original Commission allow its membership in Ventures, Inc., Silver Spring Metro Volume No. 1, Service Agreement No. the WSPP to become effective on Plaza I, 8401 Colesville Road, Suite 504, 76. January 15, 2001. Silver Spring, MD 20910, filed with the AE Supply states that a copy of this GPU Energy requests that cancellation Federal Energy Regulatory Commission filing has been provided to the WSPP be effective the 15th day of March 2001. (Commission) an Application for Executive Committee, the Pennsylvania Comment date: February 6, 2001, in Determination of Exempt Wholesale Public Utility Commission, the accordance with Standard Paragraph E Generator Status, pursuant to Part 365 of Maryland Public Service Commission, at the end of this notice. the Commission’s Regulations and the West Virginia Public Service 7. Jersey Central Power & Light Section 32 of the Public Utility Holding Commission, the Public Utilities Company, Metropolitan Edison Company Act of 1935, as amended. Commission of Ohio, the Virginia State Company, and Pennsylvania Electric Applicant, a Florida limited Corporation Commission, Michael E. Company partnership, is a special purpose entity Small, Esq. and David S. Berman, Esq., [Docket No. ER01–951–000] established to develop, construct, own General Counsel to the WSPP, and the and operate a nominally rated 250 MW members of the WSPP. Take notice that on January 16, 2001, natural gas-fired combined cycle Comment date: February 2, 2001, in Jersey Central Power & Light Company, generating facility (Facility) to be accordance with Standard Paragraph E Metropolitan Edison Company and located in the City of Port St. Lucie, Port at the end of this notice. Pennsylvania Electric Company St. Lucie County, Florida. The Facility (individually doing business as GPU will consist of one (1) F class 5. North Atlantic Energy Corporation Energy) submitted for filing a Notice of combustion turbine, one (1) heat [Docket No. ER01–949–000] Cancellation of the Service Agreement recovery steam generator and one (1) Take notice that on January 16, 2001, between GPU Energy and Energis steam turbine. The Facility as currently North Atlantic Energy Corporation, Resources Incorporated (now PSEG configured will include certain tendered for filing revisions to its FERC Energy Technologies), FERC Electric transmission interconnection facilities Electric Service Rate Schedules Nos. 1 Tariff, Original Volume No. 1, Service necessary to effect the sale of electric and 3. The Revised Rate Schedules Agreement No. 84. energy at wholesale and interconnect would lower rates of North Atlantic GPU Energy requests that cancellation the Facility to the transmission grid. All Energy Corporation’s (North Atlantic) be effective the 15th day of March 2001. of the electricity generated by the charges to the Public Service Company Comment date: February 6, 2001, in Facility will be sold exclusively at of New Hampshire (PSNH) for the accordance with Standard Paragraph E wholesale. output of North Atlantic’s ownership at the end of this notice. Comment date: February 9, 2001, in interest in the Seabrook Nuclear Power 8. Jersey Central Power & Light accordance with Standard Paragraph E Station. Company; Metropolitan Edison at the end of this notice. The The reductions are the result of a Company; Pennsylvania Electric Commission will limit its consideration Restructuring Settlement for PSNH. Company of comments to those that concern the Under the Restructuring Settlement, adequacy or accuracy of the application. PSNH will issue revenue reduction [Docket No. ER01–952–000] 3. American Transmission Systems, bonds, the proceeds of which will be Take notice that on January 16, 2001, Inc. used, in part, to buy down North Jersey Central Power & Light Company, Atlantic’s investment in Seabrook Metropolitan Edison Company and [Docket No. ER01–363–001] Station. The amendments also reduce Pennsylvania Electric Company Take notice that on January 16, 2001, North Atlantic’s cost of common equity (individually doing business as GPU American Transmission Systems, charged under the Rate Schedules from Energy) submitted for filing a Notice of Incorporated made a compliance filing 12.53% to 7.00%. Cancellation of the Service Agreement to revise Schedule 4A of its Open Copies of this filing were served upon between GPU Energy and Dupont Power Access Transmission Tariff in the Office of the Attorney General for Marketing, Inc. (now Conoco Power VerDate 11 Marketing, Inc.), FERC Electric Tariff, (Third Revised Volume No. 4), which Wisconsin Electric respectfully Original Volume No. 1, Service was accepted by order of the requests an effective date of January 15, Agreement No. 82. Commission dated August 30, 2000 in 2001. GPU Energy requests that cancellation Docket No. ER00–1737–001. Copies of the filing have been served be effective the 15th day of March 2001. The Company requests an effective on Ontonagon, the Michigan Public Comment date: February 6, 2001, in date of January 16, 2001, the date the Service Commission, and the Public accordance with Standard Paragraph E service agreement was filed. Service Commission of Wisconsin. at the end of this notice. Copies of the filing were served upon Comment date: February 6, 2001, in AES Eastern Energy, L.P., the Virginia accordance with Standard Paragraph E 9. Jersey Central Power & Light State Corporation Commission and the at the end of this notice. Company; Metropolitan Edison North Carolina Utilities Commission. Company; Pennsylvania Electric Comment date: February 6, 2001, in 14. Nevada Power Company Company accordance with Standard Paragraph E [Docket No. ER01–958–000] [Docket No. ER01–953–000] at the end of this notice. Take notice that on January 16, 2001, 12. Virginia Electric and Power Take notice that on January 16, 2001, Jersey Central Power & Light Company, Company Nevada Power Company tendered for Metropolitan Edison Company and filing, in accordance with 18 CFR Part [Docket No. ER01–956–000] Pennsylvania Electric Company 35 of the Commission’s Rules and (individually doing business as GPU Take notice that on January 16, 2001, Regulations, a Notice of Cancellation of Energy) submitted for filing a Notice of Virginia Electric and Power Company Agreement for Supplemental Power (Dominion Virginia Power or the Cancellation of the Service Agreement Service Between Nevada Power Company) tendered for filing the between GPU Energy and PacifiCorp Company and Overton Power District following: No. 5. Power Marketing, Inc., FERC Electric 1. Service Agreement for Firm Point- This Notice of Cancellation is filed Tariff, Original Volume No. 1, Service to-Point Transmission Service by pursuant to the notice of termination of Agreement No. 77. Virginia Electric and Power Company to the Agreement for Supplemental Power GPU Energy requests that cancellation Indiana Electric Marketing LLC Service given pursuant to the terms of be effective the 15th day of March 2001. designated as Service Agreement No. the agreement by Nevada Power Comment date: February 6, 2001, in 312 under the Company’s FERC Electric Company to Overton Power District No. accordance with Standard Paragraph E Tariff, Second Revised Volume No. 5; at the end of this notice. 2. Service Agreement for Non-Firm 5. Copies of the filing were served upon 10. Jersey Central Power & Light Point-to-Point Transmission Service by Overton Power District No. 5, the Public Company; Metropolitan Edison Virginia Electric and Power Company to Utilities Commission of Nevada and the Company; Pennsylvania Electric Indiana Electric Marketing LLC Nevada Attorney General’s Bureau of Company designated as Service Agreement No. 313 under the Company’s FERC Electric Consumer Protection. [Docket No. ER01–954–000] Tariff, Second Revised Volume No. 5. Comment date: February 6, 2001, in Take notice that on January 16, 2001, The foregoing Service Agreements are accordance with Standard Paragraph E Jersey Central Power & Light Company, tendered for filing under the Open at the end of this notice. Metropolitan Edison Company and Access Transmission Tariff to Eligible 15. Allegheny Energy Global Markets, Pennsylvania Electric Company Purchasers effective June 7, 2000. Under LLC (individually doing business as GPU the tendered Service Agreements, Energy) submitted for filing a Notice of Dominion Virginia Power will provide [Docket No. ER01–959–000] Cancellation of the Service Agreement point-to-point service to Indiana Electric between GPU Energy and Strategic Marketing LLC under the rates, terms Take notice that on January 16, 2001, Energy Ltd., FERC Electric Tariff, and conditions of the Open Access Allegheny Energy Global Markets, LLC Original Volume No. 1, Service Transmission Tariff. (Allegheny Energy Global, LLC ) filed a Agreement No. 83. Dominion Virginia Power requests an market rate tariff of general applicability GPU Energy requests that cancellation effective date of January 16, 2001, the under which it proposes to sell capacity be effective the 15th day of March 2001. date of filing of the Service Agreements. and energy to affiliates and non- Comment date: February 6, 2001, in Copies of the filing were served upon affiliates at market-based rates, and to accordance with Standard Paragraph E Indiana Electric Marketing LLC, the make such sales to franchised public at the end of this notice. Virginia State Corporation Commission, utility affiliates at rates capped by a and the North Carolina Utilities publicly available regional index price. 11. Virginia Electric and Power Commission. Allegheny Energy Global, LLC Company Comment date: February 6, 2001, in requests an effective date no later than [Docket No. ER01–955–000] accordance with Standard Paragraph E February 12, 2001. Take notice that on January 16, 2001, at the end of this notice. Copies of the filing have been Virginia Electric and Power Company 13. Wisconsin Electric Power Company provided to the Public Utilities (the Company) tendered for filing a Commission of Ohio, the Pennsylvania [Docket No. ER01–957–000] Service Agreement for Short-Term Public Utility Commission, the Market Rate Electric Power Sales and Take notice that on January 16, 2001, Maryland Public Service Commission, the Resale of Transmission Rights with Wisconsin Electric Power Company the Virginia State Corporation AES Eastern Energy, L.P. (Wisconsin Electric), tendered for filing Commission, the West Virginia Public Under the Service Agreement, the an amendment to its Power Sales Service Commission, and all parties of Company will provide services to the Agreement (PSA) with Ontonagon record. customer under the terms of the County Electrification Association Comment date: February 6, 2001, in Company’s Revised Market-Based Rate (Ontonagon) along with a complete copy accordance with Standard Paragraph E Tariff designated as FERC Electric Tariff of the PSA with Order 614 designations. at the end of this notice. VerDate 11 16. Arizona Public Service Company filing a Meter Service Agreement for (1998), that Ameren intends to [Docket No. ER01–960–000] Scheduling Coordinators between the withdraw from the Midwest ISO. ISO and Morgan Stanley Capital Group Comment date: February 6, 2001, in Take notice that on January 16, 2001, Inc. for acceptance by the Commission. accordance with Standard Paragraph E Arizona Public Service Company (APS) The ISO states that this filing has been at the end of this notice. tendered for filing umbrella Service served on Morgan Stanley Capital Group Agreements to provide Short-Term Firm 23. California Independent System Inc. and the California Public Utilities Operator Corporation and Non-Firm Point-to-Point Commission. Transmission Service to Abitibi The ISO is requesting waiver of the [Docket No. ER01–967–000] Consolidated Sales Corporation under 60-day notice requirement to allow the Take notice that on January 16, 2001, APS’ Open Access Transmission Tariff. Meter Service Agreement to be made the California Independent System A copy of this filing has been served effective as of January 3, 2001. Operator Corporation (ISO) submitted on Abitibi Consolidated Sales Comment date: February 6, 2001, in for filing and acceptance an amendment Corporation, and the Arizona accordance with Standard Paragraph E (Amendment No. 1) to the Utility Corporation Commission. at the end of this notice. Distribution Company Operating Comment date: February 6, 2001, in Agreement (UDC Operating Agreement) accordance with Standard Paragraph E 20. California Independent System between the ISO and the City of at the end of this notice. Operator Corporation Pasadena, California (Pasadena). 17. California Independent System [Docket No. ER01–964–000] The ISO requests waiver of the Operator Corporation Take notice that on January 16, 2001, Commission’s 60-day prior notice requirement to allow Amendment No. 1 [Docket No. ER01–961–000] the California Independent System Operator Corporation, tendered for to be made effective as of January 3, Take notice that on January 16, 2001, 2001, the date on which Amendment the California Independent System filing a Scheduling Coordinator Agreement between the ISO and Morgan No. 1 was executed. Operator Corporation (ISO), tendered for The ISO states that this filing has been Stanley Capital Group Inc. for filing a Meter Service Agreement for served upon all parties in Docket No. acceptance by the Commission. Scheduling Coordinators between the ER99–3619–000, the proceeding in The ISO states that this filing has been ISO and Calpine Energy Services, LP for which the UDC Operating Agreement served on Morgan Stanley Capital Group acceptance by the Commission. was filed. The ISO states that this filing has been Inc. and the California Public Utilities Comment date: February 6, 2001, in served on Calpine Energy Services, LP Commission. accordance with Standard Paragraph E and the California Public Utilities The ISO is requesting waiver of the at the end of this notice. Commission. 60-day notice requirement to allow the The ISO is requesting waiver of the Scheduling Coordinator Agreement to 24. Great Bay Power Corporation 60-day notice requirement to allow the be made effective as of January 3, 2001. [Docket No. ER01–968–000] Meter Service Agreement to be made Comment date: February 6, 2001, in Take notice that on January 16, 2001, effective as of January 3, 2001. accordance with Standard Paragraph E Great Bay Power Corporation (Great Comment date: February 6, 2001, in at the end of this notice. Bay) tendered for filing a service accordance with Standard Paragraph E 21. Jersey Central Power & Light agreement between Calpine Energy at the end of this notice. Company, Metropolitan Edison Services, L.P. and Great Bay for service 18. California Independent System Company, Pennsylvania Electric under Great Bay’s revised Market-Based Operator Corporation Company Rate Power Sales Tariff (Tariff). This Tariff was accepted for filing by the [Docket No. ER01–965–000] [Docket No. ER01–962–000] Commission on May 31, 2000, in Docket Take notice that on January 16, 2001, Take notice that on January 16, 2001, No. ER00–2211–000. the California Independent System Jersey Central Power & Light Company, The service agreement is proposed to Operator Corporation, tendered for Metropolitan Edison Company and be effective January 1, 2001. filing a Scheduling Coordinator Pennsylvania Electric Company Comment date: February 6, 2001, in Agreement between the ISO and Calpine (individually doing business as GPU accordance with Standard Paragraph E Energy Services, LP for acceptance by Energy) submitted for filing a Notice of at the end of this notice. the Commission. Cancellation of the Service Agreement 25. Alliant Energy Corporate Services, The ISO states that this filing has been between GPU Service Corporation and Inc. served on Calpine Energy Services, LP Aquila Power Corporation (now Aquila and the California Public Utilities Energy Marketing Corporation), FERC [Docket No. ER01–969–000] Commission. Electric Tariff, Original Volume No. 1, Take notice that on January 16, 2000, The ISO is requesting waiver of the Service Agreement No. 32. Alliant Energy Corporate Services, Inc. 60-day notice requirement to allow the GPU Energy requests that cancellation tendered for filing executed Service Scheduling Coordinator Agreement to be effective the 15th day of March 2001. Agreements for network integration be made effective as of January 3, 2001. Comment date: February 6, 2001, in transmission service with Xcel Energy Comment date: February 6, 2001, in accordance with Standard Paragraph E Services Inc. as Agent for Northern accordance with Standard Paragraph E at the end of this notice. States Power Company as a network at the end of this notice. 22. Union Electric Company, Central Transmission Customer under the terms 19. California Independent System Illinois Public Service Company of the Alliant Energy Corporate Operator Corporation Services, Inc. transmission tariff. [Docket No. ER01–966–000] Alliant Energy Corporate Services, [Docket No. ER01–963–000] Take notice that on January 16, 2001, Inc. requests an effective date of January Take notice that on January 16, 2001, AmerenUE, gave notice, pursuant to 1, 2001, and accordingly, seeks waiver the California Independent System Midwest Independent Transmission of the Commission’s notice Operator Corporation (ISO), tendered for System Operator, Inc., 84 FERC ¶ 61,231 requirements. VerDate 11 A copy of this filing has been served DEPARTMENT OF ENERGY 3. Duke Energy Corporation upon the Illinois Commerce [Docket No. ER01–972–000] Commission, the Minnesota Public Federal Energy Regulatory Commission Take notice that on January 17, 2001, Utilities Commission, the Iowa Duke Energy Corporation (Duke), Department of Commerce, and the [Docket No. ER01–971–000, et al.] tendered for filing a Service Agreement Public Service Commission of with Duke Power, a division of Duke Wisconsin. Duke Energy Corporation, et al; Energy for Firm Point-To-Point Comment date: February 6, 2001, in Electric Rate and Corporate Regulation Transmission Service under Duke’s accordance with Standard Paragraph E Filings Open Access Transmission Tariff. at the end of this notice. January 22, 2001. Duke requests that the proposed Service Agreement permitted to become Take notice that the following filings 26. Consumers Energy Company effective on December 20, 2000. have been made with the Commission: [Docket No. ER01–970–000] Duke states that this filing is in 1. Duke Energy Corporation accordance with Part 35 of the Take notice that on January 16, 2001, Commission’s Regulations and a copy [Docket No. ER01–971–000] Consumers Energy Company has been served on the North Carolina (Consumers) tendered for filing Take notice that on January 17, 2001, Utilities Commission. executed Firm and Non-Firm Point to Duke Energy Corporation (Duke), Comment date: February 7, 2001, in Point Transmission Service Agreements tendered for filing a Service Agreement accordance with Standard Paragraph E with Tenaska Power Services Co. with Duke Power, a division of Duke at the end of this notice. Energy for Firm Point-To-Point (Customer) pursuant to the Joint Open 4. Duke Energy Corporation Access Transmission Service Tariff filed Transmission Service under Duke’s on December 31, 1996 by Consumers Open Access Transmission Tariff. [Docket No. ER01–973–000] Duke requests that the proposed and The Detroit Edison Company Take notice that on January 17, 2001, Service Agreement be permitted to (Detroit Edison). Duke Energy Corporation (Duke), become effective on December 19, 2000. tendered for filing a Service Agreement Both Agreements have effective dates Duke states that this filing is in with Duke Power, a division of Duke of January 1, 2001. accordance with Part 35 of the Energy for Firm Point-To-Point Copies of the filed agreements were Commission’s Regulations and a copy Transmission Service under Duke’s served upon the Michigan Public has been served on the North Carolina Open Access Transmission Tariff. Service Commission, Detroit Edison, Utilities Commission. Duke requests that the proposed and the Customer. Comment date: February 7, 2001, in Service Agreement be permitted to accordance with Standard Paragraph E Comment date: February 6, 2001, in become effective on December 20, 2000. at the end of this notice. Duke states that this filing is in accordance with Standard Paragraph E accordance with Part 35 of the at the end of this notice. 2. Allegheny Energy Service Corporation on behalf of Monongahela Commission’s Regulations and a copy Standard Paragraphs Power Company, The Potomac Edison has been served on the North Carolina Company, and West Penn Power Utilities Commission. E. Any person desiring to be heard or Company (Allegheny Power) Comment date: February 7, 2001, in to protest such filing should file a accordance with Standard Paragraph E motion to intervene or protest with the [Docket No. ER01–614–001] at the end of this notice. Federal Energy Regulatory Commission, Take notice that on January 16, 2001, 5. Duke Energy Corporation 888 First Street, N.E., Washington, D.C. Allegheny Energy Service Corporation 20426, in accordance with Rules 211 on behalf of Monongahela Power [Docket No. ER01–974–000] and 214 of the Commission’s Rules of Company, The Potomac Edison Take notice that on January 17, 2001, Practice and Procedure (18 CFR 385.211 Company and West Penn Power Duke Energy Corporation (Duke), and 385.214). All such motions or Company (Allegheny Power), tendered tendered for filing a Service Agreement protests should be filed on or before the for filing First Revised Service with Carolina Power & Light Company comment date. Protests will be Agreement No. 73 under the Market for Firm Point-To-Point Transmission considered by the Commission in Rate Tariff to incorporate a Netting Service under Duke’s Open Access determining the appropriate action to be Agreement with PG&E Energy Trading— Transmission Tariff. taken, but will not serve to make Power, L.P., into the tariff provisions. Duke requests that the proposed Allegheny Power requests a waiver of protestants parties to the proceeding. Service Agreement be permitted to notice requirements to make the Netting become effective on December 19, 2000. Any person wishing to become a party Agreement effective as of January 3, Duke states that this filing is in must file a motion to intervene. Copies 2001. accordance with Part 35 of the of these filings are on file with the Copies of the filing have been Commission’s Regulations and a copy Commission and are available for public provided to the Public Utilities has been served on the North Carolina inspection. This filing may also be Commission of Ohio, the Pennsylvania Utilities Commission. viewed on the Internet at http:// Public Utility Commission, the Comment date: February 7, 2001, in www.ferc.fed.us/ online/rims.htm (call Maryland Public Service Commission, accordance with Standard Paragraph E 202–208–2222 for assistance). the Virginia State Corporation at the end of this notice. Commission, the West Virginia Public David P. Boergers, 6. Duke Energy Corporation Service Commission, and all parties of Secretary. record. [Docket No. ER01–975–000] [FR Doc. 01–2386 Filed 1–25–01; 8:45 am] Comment date: February 7, 2001, in Take notice that on January 17, 2001, BILLING CODE 6717–01–P accordance with Standard Paragraph E Duke Energy Corporation (Duke), at the end of this notice. tendered for filing a Service Agreement VerDate 11 with TransAlta Energy Marketing (U.S.), filing a notice of change in status and Commission, the West Virginia Public Inc., for Firm Point-To-Point amendments to its market-based rate Service Commission, and all parties of Transmission Service under Duke’s tariff and code of conduct to reflect its record. Open Access Transmission Tariff. pending affiliation with Cinergy Corp., Comment date: February 7, 2001, in Duke requests that the proposed and its franchised public utility accordance with Standard Paragraph E Service Agreement be permitted to subsidiaries. at the end of this notice. become effective on January 8, 2001. Comment date: February 7, 2001, in 14. MidAmerican Energy Company Duke states that this filing is in accordance with Standard Paragraph E accordance with Part 35 of the at the end of this notice. [Docket No. ER01–984–000] Commission’s Regulations and a copy Take notice that on January 17, 2001, 11. Southwest Power Pool, Inc. has been served on the North Carolina MidAmerican Energy Company Utilities Commission. [Docket No. ER01–980–000] (MidAmerican), 401 Douglas Street, P.O. Comment date: February 7, 2001, in Take notice that on January 17, 2001, Box 778, Sioux City Iowa 51102, accordance with Standard Paragraph E Southwest Power Pool, Inc., tendered tendered for filing with the Commission at the end of this notice. for filing notice that effective January a Firm Transmission Service Agreement between MidAmerican, as transmission 7. Duke Energy Corporation 17, 2001, Service Agreement No. 406, effective date June 29, 2000, and filed provider, and MidAmerican Energy [Docket No. ER01–976–000] with the Federal Energy Regulatory Company, as wholesale merchant. The Take notice that on January 17, 2001, Commission in Docket No. ER01–431 by Agreement is dated December 29, 2000 Duke Energy Corporation (Duke), Southwest Power Pool, Inc., is to be and has been entered into pursuant to tendered for filing a Service Agreement canceled. MidAmerican’s Open Access with Sempra Energy Trading Corp. for Notice of the proposed cancellation Transmission Tariff. Firm Transmission Service under have been served upon Southwestern MidAmerican requests an effective Duke’s Open Access Transmission Public Service Company—Wholesale date of January 1, 2001 for the Tariff. Merchant Function. Agreement and seeks a waiver of the Duke requests that the proposed Comment date: February 7, 2001, in Commission’s notice requirement. Service Agreement be permitted to accordance with Standard Paragraph E MidAmerican has served a copy of the become effective on December 19, 2000. at the end of this notice. filing on the Iowa Utilities Board, the Duke states that this filing is in Illinois Commerce Commission and the accordance with Part 35 of the 12. Entergy Services, Inc. South Dakota Public Utilities Commission’s Regulations and a copy [Docket No. ER01–982–000] Commission. Comment date: February 7, 2001, in has been served on the North Carolina Take notice that on January 17, 2001, accordance with Standard Paragraph E Utilities Commission. Entergy Services, Inc. (Entergy at the end of this notice. Comment date: February 7, 2001, in Services), on behalf of Entergy accordance with Standard Paragraph E Arkansas, Inc., and Entergy Gulf States, 15. MidAmerican Energy Company at the end of this notice. Inc., tendered for filing Generator [Docket No. ER01–985–000] Imbalance Agreements between Entergy 8. Southwest Power Pool, Inc. Take notice that on January 17, 2001, Gulf States, Inc., and Entergy Services, MidAmerican Energy Company [Docket No. ER01–977–000] and between Entergy Arkansas, Inc., and (MidAmerican), 401 Douglas Street, P. Take notice that on January 17, 2001, Entergy Power Inc. O. Box 778, Sioux City Iowa 51102, Southwest Power Pool, Inc. (SPP), Comment date: February 7, 2001, in tendered for filing with the Commission tendered for filing 82 executed service accordance with Standard Paragraph E the Fourth Amendment to Network agreements for Loss Compensation at the end of this notice. Service under the SPP Tariff. Integration Transmission Service SPP seeks an effective date of January 13. Allegheny Energy Service Agreement entered into by 1, 2001, for each of these agreements. Corporation on behalf of Allegheny MidAmerican and the City of Sergeant Comment date: February 7, 2001, in Energy Supply Hunlock Creek, LLC Bluff, Iowa, dated December 29, 2000. accordance with Standard Paragraph E [Docket No. ER01–983–000] The Agreement amends the Network at the end of this notice. Integration Transmission Service Take notice that on January 17, 2001, Agreement dated April 7, 1997, between 9. Brownsville Power I, L.L.C. Allegheny Energy Service Corporation the parties. on behalf of Allegheny Energy Supply [Docket No. ER01–978–000] MidAmerican requests an effective Hunlock Creek, LLC filed Service date of January 1, 2001 for the Take notice that on January 17, 2001, Agreement No. 1 to add one (1) new Agreement and seeks a waiver of the Brownsville Power I, L.L.C., tendered Customer to the Market Rate Tariff Commission’s notice requirement. for filing a notice of change in status under which Allegheny Energy Supply MidAmerican has served a copy of the and amendments to its market-based Hunlock Creek, LLC offers generation filing on the Iowa Utilities Board and rate tariff and code of conduct to reflect services. the City of Sergeant Bluff, Iowa. its pending affiliation with Cinergy Allegheny Energy Supply Hunlock Comment date: February 7, 2001, in Corp., and its franchised public utility Creek, LLC requests a waiver of notice accordance with Standard Paragraph E subsidiaries. requirements to make service available at the end of this notice. Comment date: February 7, 2001, in as of November 13, 2000 to Allegheny accordance with Standard Paragraph E Energy Supply Company, LLC. Standard Paragraphs at the end of this notice. Copies of the filing have been E. Any person desiring to be heard or 10. Caledonia Power I, L.L.C. provided to the Public Utilities to protest such filing should file a Commission of Ohio, the Pennsylvania motion to intervene or protest with the [Docket No. ER01–979–000] Public Utility Commission, the Federal Energy Regulatory Commission, Take notice that on January 17, 2001, Maryland Public Service Commission, 888 First Street, NE., Washington, DC Caledonia Power I, L.L.C., tendered for the Virginia State Corporation 20426, in accordance with Rules 211 VerDate 11 and 214 of the Commission’s Rules of published in the Federal Register on adequacy finding. On July 11, 2000, the Practice and Procedure (18 CFR 385.211 February 28, 2000. petitioners moved, on an expedited and 385.214). All such motions or DATES: The notice of adequacy is basis, to stay EPA’s adequacy protests should be filed on or before the withdrawn as of January 26, 2001. determination pending that Court’s comment date. Protests will be FOR FURTHER INFORMATION CONTACT: ruling on the merits of their April 28, considered by the Commission in Kelly Sheckler (404–562–9042). 2000 Petition. On July 18, 2000, the 11th determining the appropriate action to be SUPPLEMENTARY INFORMATION: Circuit Court granted the motion for taken, but will not serve to make stay. protestants parties to the proceeding. Background Once the 11th Circuit stayed the Any person wishing to become a party On February 15, 2000, EPA Region 4 attainment SIP adequacy determination must file a motion to intervene. Copies sent a letter to the Georgia on July 18, 2000, the United States of these filings are on file with the Environmental Protection Division Department of Transportation (USDOT) Commission and are available for public stating that the motor vehicle emissions had to base any conformity inspection. This filing may also be budgets for nitrogen oxides (NOX) and determination on the prior approved viewed on the Internet at http:// volatile organic compounds (VOCs) in motor vehicle emissions budgets www.ferc.fed.us/online/rims.htm (call the October 28, 1999, Atlanta ozone contained in the VOC 15 percent and 202–208–2222 for assistance). attainment SIP for 2003 were adequate NOX 9 percent rate of progress SIPs David P. Boergers, for the purpose of transportation approved by EPA on April 26, 1999, and Secretary. conformity. EPA published a notice in March 18, 1999, respectively (64 FR [FR Doc. 01–2385 Filed 1–25–01; 8:45 am] the Federal Register on February 28, 20186 and 64 FR 13348). Today’s action 2000, [65 FR 10490] announcing that we BILLING CODE 6717–01–P does not affect USDOT’s July 25, 2000, had made an adequacy determination conformity determination since it was for the motor vehicle emissions budgets based on these approved budgets and in Atlanta’s attainment SIP. This finding not the submitted attainment budgets, ENVIRONMENTAL PROTECTION was also announced on EPA’s which had been stayed prior to the AGENCY conformity website, http:// conformity determination. www.epa.gov/oms/traq. [GA47–200003; FRL–6936–9] Transportation conformity is required EPA believes that a consequence of the D.C. Circuit’s order delaying the Adequacy Status of the Atlanta, GA, by section 176(c) of the Clean Air Act. EPA’s conformity rule requires that implementation date of the NOX SIP Submitted Ozone Attainment State Call rule is that the budget submitted by Implementation Plan for transportation plans, programs, and projects conform to SIPs and establishes Georgia can no longer be considered Transportation Conformity Purposes; adequate for purposes of transportation Withdrawal of Adequacy Finding the criteria and procedures for determining whether or not they do conformity. This belief is based on the AGENCY: Environmental Protection conform. Conformity to a SIP means that fact that the attainment demonstration Agency (EPA). transportation activities will not relied on the expected reductions from the NOX SIP call in 2003, whereas those ACTION: produce new air quality violations, Withdrawal of adequacy reductions can not now be assumed finding. worsen existing violations, or delay timely attainment of the national prior to 2004. SUMMARY: EPA has decided to withdraw ambient air quality standards. Furthermore, on December 21, 2000, our finding of adequacy for the motor EPA described the process for Georgia sent a letter withdrawing the vehicle emissions budgets in the determining the adequacy of submitted motor vehicle emission budgets Atlanta, Georgia, ozone attainment SIP SIP budgets in guidance (May 14, 1999, contained in the October 28, 1999, SIP submitted on October 28, 1999. We are memo titled ‘‘Conformity Guidance on submittal and asked that EPA not withdrawing our adequacy finding for Implementation of March 2, 1999, undertake any further consideration of several reasons. The United States Court Conformity Court Decision’’). This these budgets until the State concludes of Appeals for the District of Columbia guidance was used in making the the work necessary to submit a revised circuit decided on August 30, 2000, that adequacy determination on the motor budget. The revised budget is expected the implementation of the Nitrogen vehicle emissions budgets contained in to be based on the results of the recent Oxides (NOX) State Implementation the attainment demonstration for study of vehicle speeds data, updated Plan (SIP) Call rule could not be Atlanta. The criteria by which EPA vehicle registration data, and modeling required before May 31, 2004. The determines whether a SIP’s motor information relevant to the estimation of emission levels in the Atlanta vehicle emission budgets are adequate current and future motor vehicle attainment SIP motor vehicle emissions for conformity purpose are outlined in emissions developed since submission budget for NOX were based in part on 40 CFR 93.118(e)(4). An adequacy of the previous budget. Based on these the assumption that transport of ozone review is separate from EPA’s SIP changes of fact and law, the parties filed recursors into Atlanta from upwind completeness review, and it also should a joint motion to the 11th Circuit to hold states would be addressed by May 2003 not be used to prejudge EPA’s ultimate further proceedings on review of the pursuant to EPA’s NOX SIP Call. action to approve or disapprove the SIP. adequacy determination in abeyance Further, the Georgia Environmental The SIP could later be disapproved for and for permission for EPA to withdraw Protection Division (EPD) recently reasons unrelated to transportation the finding of adequacy. All parties in requested that EPA withdraw its conformity even though the budgets had those proceedings have agreed that adequacy determination of the Atlanta been deemed adequate. because it is not appropriate for the ozone attainment SIP motor vehicle The Southern Environmental Law transportation agencies to rely upon the emissions budgets. The notice of the Center (SELC) on behalf of many currently submitted budget for the adequacy determination that is being petitioners, filed a lawsuit on April 28, purpose of making transportation withdrawn was made on February 15, 2000, with the 11th Circuit Court of conformity determinations, the stay 2000, in a letter to the State and was Appeals seeking review of EPA’s entered by the Court on July 19, 2000, VerDate 11 should remain in effect pending EPA’s Dated: January 16, 2001. case studies to describe in detail how completion of the withdrawal action. A. Stanley Meiburg, specific products are being regulated or On January 12, 2001, the court granted Acting Regional Administrator, Region 4. how they may potentially be regulated. EPA the motion to withdraw the [FR Doc. 01–2169 Filed 1–25–01; 8:45 am] The focus on environmental regulations adequacy determination. BILLING CODE 6560–50–M was based on the premise that this Consequently, EPA has decided to aspect of biotechnology regulation is not withdraw the February 15 adequacy well understood by the public and is the determination. Even though adequacy COUNCIL ON ENVIRONMENTAL subject of considerable interest. The determinations are not considered QUALITY analysis was not intended to be rulemaking subject to procedural comprehensive in scope, but rather to be requirements of the Administrative OFFICE OF SCIENCE AND based on a set of case studies that could Procedures Act, EPA’s policy is to TECHNOLOGY POLICY provide a notice and comment period illuminate current agency practices, identify strengths and potential areas for on adequacy determinations. However, Notice of Availability and Request for we are not providing opportunity for Comments improvement. comment on this withdrawal notice for In the intervening months, the two reasons. EPA is taking this action SUMMARY: On May 3, 2000 the Council assessment produced a set of working without prior notice and comment on Environmental Quality (CEQ) and documents that provide rich detail and because adequacy determinations are the Office of Science and Technology information on specific case studies for Policy (OSTP) were directed to conduct not considered rulemaking subject to the public and for policymakers. an interagency assessment of Federal the procedural requirements of the However, due to time limitations, the environmental regulations pertaining to Administrative Procedures Act. In interagency working group that was agricultural biotechnology. CEQ and addition, EPA does not believe further assembled to conduct the assessment notice through EPA’s conformity OSTP announce the availability of the was not able to conduct the analysis website is necessary in advance, since case studies and invite comment. necessary to develop conclusions or as a result of the stay issued by the DATES: Written comments should be recommendations. The selection of court, the conformity determination submitted on or before May 1, 2001. these particular case studies in no way made by USDOT on July 25, 2000, did ADDRESSES: Direct written comments to indicates specific concerns with not rely on the motor vehicle emission Chair, Council on Environmental previous regulatory findings. In fact, no budgets submitted in the attainment Quality and Director, Office of Science significant negative environmental SIP. Therefore, although EPA had found and Technology Policy; Executive Office these budgets to be adequate, they were of the President, 17th and G Streets, impacts have been associated with the never used for transportation conformity NW., Washington, DC 20500. Attention: use of any previously approved purposes. Further, because of the delay CEQ/OSTP Biotechnology Assessment. biotechnology product. in the NO SIP Call implementation X FOR FURTHER INFORMATION CONTACT: II. Request for Comments date, it is clear that the budgets can no Requests for copies of the report may be longer be considered adequate, and directed to CEQ and OSTP at the above In order to further the assessment Georgia has requested that EPA address or may be requested by calling process, CEQ and OSTP believe it withdraw the adequacy determination. CEQ at (202) 395–5750 or OSTP at (202) would be beneficial to have public input Consequently, further public comment 456–6130. The report also appears on on federal regulation of environmental would be unnecessary and not in the CEQ’s website at www.whitehouse.gov/ aspects of biotechnology informed by public interest. In this action, EPA is ceq and on OSTP’s website at the case studies. Specifically, based on also withdrawing all statements and www.ostp.gov. comments previously made in relation the initial review of the case studies, to its earlier determination of the SUPPLEMENTARY INFORMATION: public comment is requested in the following broad areas of overall federal adequacy of the budgets for I. Abstract transportation conformity purposes. The regulation of environmental aspects of substance of the budgets and any On May 3, 2000, the President biotechnology: (a) Comprehensiveness revisions to them will be further directed the Council on Environmental and rigor of environmental assessment; reviewed by EPA as part of its final Quality (CEQ) and the Office of Science (b) comprehensiveness and strength of decision to approve or disapprove the 1- and Technology Policy (OSTP) to statutory authority; (c) transparency of hour ozone attainment demonstration ‘‘conduct a six month interagency the environmental assessment and the SIP for the Atlanta nonattainment area. assessment of Federal environmental decisionmaking process; (d) public This SIP was initially submitted to EPA regulations pertaining to agricultural involvement; (e) interagency on October 28, 1999, and was biotechnology and, if appropriate, make coordination; (f) confidential business supplemented on January 31, 2000, and recommendations to improve them’’. information. The assessment was undertaken as part July 31, 2000. EPA will consider all of Public comments are requested by of a larger set of policy measures these submissions as well as all May 1. comments timely submitted as we intended to build consumer confidence decide whether to approve or and ensure that U.S. regulations keep Dated: January 19, 2001. disapprove the SIP. pace with the latest scientific and Dinah Bear, EPA will announce the withdrawal of product developments. General Counsel, Council on Environmental the adequacy determination on its The President directed this Quality. assessment to further long-standing conformity website at http:// Clifford Gabriel, www.epa.gov/oms/traq. goals of public access to information and maintenance of strong, science- Deputy to the Associate Director, Office of List of Subjects in 40 CFR Part 52 based regulation. The assessment was Science and Technology Policy. Environmental protection, Air intended to focus on environmental [FR Doc. 01–2325 Filed 1–25–01; 8:45 am] pollution control, Hydrocarbons, Ozone. regulations through the use of a set of BILLING CODE 3125–01–M VerDate 11 FARM CREDIT ADMINISTRATION including the use of automated FEDERAL COMMUNICATIONS collection techniques or other forms of COMMISSION Sunshine Act Meetings; Farm Credit information technology. Administration Board; Regular Meeting DATES: Written comments should be Notice of Public Information submitted on or before March 27, 2001. Collection(s) being Submitted to OMB AGENCY: Farm Credit Administration. for Review and Approval SUMMARY: Notice is hereby given, If you anticipate that you will be pursuant to the Government in the submitting comments, but find it January 18, 2001. Sunshine Act (5 U.S.C. 552b(e)(3)), that difficult to do so within the period of SUMMARY: The Federal Communications the February 8, 2001 regular meeting of time allowed by this notice, you should Commissions, as part of its continuing the Farm Credit Administration Board advise the contact listed below as soon effort to reduce paperwork burden (Board) will not be held. The FCA Board as possible. invites the general public and other will hold a special meeting at 9 a.m. on ADDRESSES: Direct all comments to Les Federal agencies to take this Wednesday, February 21, 2001. An Smith, Federal Communications opportunity to comment on the agenda for this meeting will be Commissions, 445 12th Street, SW., following information collection, as published at a later date. Room 1–A804, Washington, DC 20554 required by the Paperwork Reduction or via the Internet to [email protected]. FOR FURTHER INFORMATION CONTACT: Act of 1995, Public Law 104–13. An Kelly Mikel Williams, Secretary to the FOR FURTHER INFORMATION CONTACT: For agency may not conduct or sponsor a Farm Credit Administration Board, additional information or copies of the collection of information unless it (703) 883–4025, TDD (703) 883–4444. information collections contact Les displays a currently valid control Smith at (202) 418–0217 or via the number. No person shall be subject to ADDRESSES: Farm Credit Internet at [email protected]. any penalty for failing to comply with Administration, 1501 Farm Credit Drive, SUPPLEMENTARY INFORMATION: a collection of information subject to the McLean, Virginia 22102–5090. OMB Approval Number: 3060–0850. Paperwork Reduction Act (PRA) that Dated: January 23, 2001. Title: Quick-Form Application for does not display a valid control number. Kelly Mikel Williams, Authorization in the Ship, Aircraft, Comments are requested concerning (a) Secretary, Farm Credit Administration Board. Amateur, Restricted and Commercial whether the proposed collection of [FR Doc. 01–2455 Filed 1–24–01; 10:33 am] Operator, and General Mobile Radio information is necessary for the proper BILLING CODE 6705–01–P Services. performance of the functions of the Form No.: FCC 605. Commission, including whether the Type of Review: Revision to an information shall have practical utility; Existing Collection. (b) the accuracy of the Commission’s FEDERAL COMMUNICATIONS Respondents: Individuals or COMMISSION burden estimate; (c) ways to enhance households; Business or other for-profit; the quality, utility, and clarity of the Notice of Public Information Not-for-profit institutions; State, Local information collected; and (d) ways to Collection(s) Being Reviewed by the or Tribal Government minimize the burden of the collection of Number of Respondents: 170,000. Federal Communications Commission, information on the respondents, Estimated Time Per Response: .44 Comments Requested including the use of automated hours. collection techniques or other forms of January 17, 2001. Total Annual Burden: 74,800 hours. information technology. Total Respondent Cost: $2,465,000. SUMMARY: The Federal Communications DATES: Needs and Uses: FCC 605 application Written comments should be Commission, as part of its continuing submitted on or before February 26, is a consolidated application form for effort to reduce paperwork burden 2001. If you anticipate that you will be Ship, Aircraft, Amateur, Restricted and invites the general public and other submitting comments, but find it Commercial Radio Operators, and Federal agencies to take this difficult to do so within the period of General Mobile Radio Services and is opportunity to comment on the time allowed by this notice, you should used to collect licensing data for the following information collection, as advise the contact listed below as soon Universal Licensing System. required by the Paperwork Reduction The form is being revised to collect as possible. Act of 1995, Public Law 104–13. An Date of Birth for Commercial Operator ADDRESSES: Direct all comments to Les agency may not conduct or sponsor a and Amateur Radio Service applicants. Smith, Federal Communications collection of information unless it The data collected on this form Commission, Room 1–A804, 445 12th displays a currently valid control includes the applicant’s Taxpayer Street, SW., Washington, DC 20554 or number. No person shall be subject to Identification Number, and Date of Birth via the Internet to [email protected]. any penalty for failing to comply with for Amateur and Commercial Operator FOR FURTHER INFORMATION CONTACT: For a collection of information subject to the licensing, however, this information additional information or copies of the Paperwork Reduction Act (PRA) that will be redacted from public view. information collections contact Les does not display a valid control number. There is no change to the estimated Smith at (202) 418–0217 or via the Comments are requested concerning (a) average burden or number of Internet at [email protected]. whether the proposed collection of respondents. However, this collection SUPPLEMENTARY INFORMATION: information is necessary for the proper reflects a program change increase of OMB Control Number: 3060–0034. performance of the functions of the $204,000 resulting from a change in the Title: Application for Construction Commission, including whether the fee amount required with the Permit for Reserved Channel information shall have practical utility; application since last submission. Noncommercial Educational Broadcast (b) the accuracy of the Commission’s Federal Communications Commission. Station. burden estimate; (c) ways to enhance Form Number: FCC 340. the quality, utility, and clarity of the Magalie Roman Salas, Type of Review: Extension of a information collected; and (d) ways to Secretary. currently approved collection. minimize the burden of the collection of [FR Doc. 01–2255 Filed 1–25–01; 8:45 am] Respondents: Businesses or other for- information on the respondents, BILLING CODE 6712–01–P profit entities. VerDate 11 Number of Respondents: 1,970. satellite systems receiving expansion Federal Communications Commission. Estimated Time per Response: 2.2 spectrum as part of the rural and Magalie Roman Salas, hours. unserved areas spectrum incentive must Secretary. Frequency of Response: provide a report on the actual number [FR Doc. 01–2374 Filed 1–25–01; 8:45 am] Recordkeeping; On occasion reporting of subscriber minutes originating or BILLING CODE 6712–01–U requirements; Third party disclosure. terminating in unserved areas as a Total Annual Burden: 4,370 hours. percentage of the actual U.S. system use. Total Annual Costs: $8,538,145. This rule will permit the Commission to FEDERAL COMMUNICATIONS Needs and Uses: FCC Form 340 is verify that service is being provided in COMMISSION used to apply for authority to construct rural and unserved areas. In addition, a new noncommercial educational system proponents will have to [Report No. AUC–00–31–J (Auction No. 31); DA 01–12] (NCE) FM, TV, DTV broadcast station, complete critical design review (CDR) or to make changes in the existing within two years of authorization. CDR Auction of Licenses in the 747–762 and facilities of such a station. Form 340 is is a new milestone for satellite services 777–792 MHz Bands Scheduled for used for channels that are reserved and will permit the Commission to more March 6, 2001; Modifications to the exclusively for NCE use. 47 CFR closely monitor system construction. Calculation for Determining Minimum 73.3580 requires third party Without such information, the Acceptable Bids and the Provisions notification—public notice in a Commission could not determine Concerning ‘‘Last and Best Bids’’ and newspaper of general circulation—when whether satellite licensees are operating Other Procedural Issues applications are filed for new facilities in conformance with the Commission’s or major changes in existing facilities. In rules. AGENCY: Federal Communications Commission. addition, all mutually exclusive NCE OMB Control Number: 3060–XXXX. proposals for the reserved band ACTION: Notice. currently on file with the FCC must Title: Availability of INTELSAT Space supplement their applications with Segment Capacity to Users and SUMMARY: This document announces portions of the revised Form 340 to Providers Seeking to Access INTELSAT two refinements to the package bidding make a selection under the new point Directly. procedures for Auction No. 31. We system. The FCC will issue a public Form Number: N/A. adopt our proposal to change part (iii) notice announcing the procedures to be Type of Review: New collection. of the formula for determining used in this process. These data help the Respondents: Businesses or other for- minimum acceptable bids to incorporate FCC to determine whether an applicant profit entities. a shortfall allocation. This revision will ensure a reasonable auction pace and a meets basic statutory requirements to Number of Respondents: 10. become or remain an FCC licensee and timely close of the auction. We also Estimated Time per Response: 2 to ensure that the public interest will be adopt our proposal to change provisions hours. served by grant of the application. When concerning last and best bids to allow a there are mutually exclusive, qualified Frequency of Response: One-time- bidder to submit up to two sets of last applicants, this information will help to only filing requirement. and best bids. This is likely to produce determine which proposal would best Total Annual Burden: 20 hours. a more efficient assignment of licenses serve the public interest. Total Annual Costs: $3,000. because it permits bidders to express their valuations more precisely. In OMB Control Number: 3060–0955. Needs and Uses: On September 19, addition, the Bureau highlights for Title: 2 GHz Mobile Satellite Service 2000, the FCC released a Report and prospective bidders the dates already set Reports. Order (R&O), IB Docket No. 00–91, FCC forth for the conduct of Auction No. 31 Form Number: N/A. 00–340, pursuant to the recently and recent changes to the Competitive Type of Review: Extension of a enacted Open-Market Reorganization for Bidding Rules. To further facilitate currently approved collection. the Betterment of International participation in the first auction that Respondents: Businesses or other for- Telecommunications Act (ORBIT Act). will allow package bidding as an option, profit entities. Section 641(b) of the Communications the Bureau has included, in Number of Respondents: 9. Satellite Act of 1962, as amended by the Attachments A and B to the Public Estimated Time per Response: 3 ORBIT Act, requires the FCC to Notice, a summary of the provisions that hours. determine whether ‘‘sufficient will govern package bidding in this Frequency of Response: opportunity’’ exists for users and service auction and a chart that summarizes Recordkeeping; On occasion reporting providers ‘‘to access INTELSAT space package bidding activity calculations, requirements. segment capacity directly from respectively. Total Annual Burden: 27 hours. INTELSAT to meet their service and Total Annual Costs: $14,000. capacity requirements.’’ The R&O DATES: Auction No. 31 is scheduled for Needs and Uses: The 2 GHz mobile concluded that users and service March 6, 2001. satellite service rules, 47 CFR part 25, providers currently do not have FOR FURTHER INFORMATION CONTACT: require disclosure in the form of a sufficient opportunity for direct access Walter D. Strack, Bureau Chief narrative statement, through to INTELSAT. The R&O also concluded Economist, Wireless amendments to applications or letters of that FCC should adopt a ‘‘commercial Telecommunications Bureau, (202) 418– intent, or orbital debris mitigation solution.’’ This requires the parties— 0600; Evan Kwerel, Senior Economist, design and operational strategies and a Comsat (which controls the most U.S. Office of Plans and Policy, (202) 418– casualty risk assessment if planned accessible capacity) and other direct 2030; Howard Davenport, Auctions post-mission disposal involves access users, to attempt to negotiate Attorney; Craig Bomberger, Auctions atmospheric re-entry of spacecraft. This mutually agreeable arrangements and to Analyst; or Karen Wrege, Auctions and requirement will permit the file reports with the Commission on or Industry Analysis Division, Wireless Commission and the public to comment before March 13, 2001 on the progress Telecommunications Bureau, (202) 418– on each system’s design. 2 GHz mobile of their negotiations. 0600. VerDate 11 SUPPLEMENTARY INFORMATION: This is a bid on that package plus x%, where the the auction by bidding up the price on summary of a public notice released Bureau would specify the value of x in a license/package that would partner January 5, 2001. The complete text of each round; and (iii) the number of with their own license/package in order the public notice, including the bidding units for the license or package to shift the burden of the shortfall to attachments, is available for inspection multiplied by the lowest $/bidding unit another bidder; and (ii) afford to bidders and copying during normal business on any provisionally winning package that have not bid on a license/package hours in the FCC Reference Center in the last 5 rounds. for some time the ability to ‘‘park’’ (i.e., (Room CY–A257), 445 12th Street, SW., 3. In the Auction No. 31 Package make bids that receive eligibility Washington, DC 20554. It may also be Bidding Further Comment Public activity credit but have little prospect of purchased from the Commission’s copy Notice, we proposed to replace part (iii) winning) on that license/package since contractor, International Transcription of the minimum acceptable bid formula potentially small allocations of shortfall Services, Inc. (ITS, Inc.) 1231 20th with the sum of a bidder’s previous high will be added to a bid amount that is Street, NW., Washington, DC 20036, bid on a license/package and a share of well below the amount needed to (202) 857–3800. It is also available on the increase in revenue needed to tie the become a provisional winner. the Commission’s web site at http:// provisional winners. We defined the Consequently, the Bureau believes that www.fcc.gov. shortfall associated with a license/ using bidding units to allocate the List of Attachments available at the package as the difference between the shortfall provides an efficient FCC: revenue of the provisionally winning mechanism for determining the bid set and the maximum total revenue minimum bid increment added to a ATTACHMENT A—Summary of associated with the set of bids that bidder’s previous high bid. In addition, Package Bidding Rules for 700 MHz includes that particular license/package. if the minimum acceptable bid price is Auction The deficit was defined as an allocation too high, bidders will have the ATTACHMENT B—Package Bidding of the shortfall to the particular license/ opportunity to bid a price less than that Activity Calculations package in proportion to its share of ATTACHMENT C—FCC Auction amount if they choose to exit the bidding units relative to those Seminar Registration Form auction via last and best bids. associated with bids that were not part 6. In the Auction No. 31 Package ATTACHMENT D—Guidelines for of the provisionally winning set but are Bidding Further Comment Public Completion of FCC Form 175 and part of the set that maximizes revenue Notice, we proposed an exception to the Exhibits when including the particular license/ modified minimum acceptable bid ATTACHMENT E—Electronic Filing package. (When there is more than one formula for new packages. We proposed and Review of the FCC Form 175 ATTACHMENT F—Accessing the FCC set of bids that yields the same shortfall that part (iii) of the formula for the Network to File FCC Form 175 for a given bid, we proposed to choose initial minimum acceptable bid for any ATTACHMENT G—FCC Bidding the shortfall set that includes the most package other than a global package Preference/Remote Security Access provisionally winning bidding units.) created during the auction will continue Cards Software Order Form We proposed to set part (iii) of the to be calculated by multiplying the minimum acceptable bid formula number of bidding units in the package I. General initially to be a bidder’s previous high by the lowest $/bidding unit of any 1. On July 3, 2000, the Wireless bid on a license/package plus 100 provisionally winning bid in the last Telecommunications Bureau (Bureau) percent of the deficit, but retain the five rounds. announced the procedures for discretion to adjust the percentage of the 7. Pekec and Rothkopf argue that we implementing package bidding for deficit during the course of the auction should calculate the minimum Auction No. 31. After further testing and to provide control over the auction’s acceptable bid for new packages the analysis, the Bureau issued Auction No. pace. same way as for all other bids and calculate the minimum acceptable bid 31 Package Bidding Further Comment Discussion Public Notice, 65 FR 66752 (November prices for all possible packages and 4. Pekec and Rothkopf agree that 7, 2000) proposing changes to and licenses regardless of whether the using the shortfall calculation in the bidder has bid on a license/package. We seeking comment on the following determination of the minimum note that this would require the matters: (i) The calculation for acceptable bid price is a clear determination of minimum acceptable determining minimum acceptable bids; improvement to the originally proposed bid values equal to the total number of and (ii) the provisions concerning last calculation. However, they believe that possible combinations of the twelve and best bids. In response to the the allocation of this calculated shortfall licenses times the number of bidders, Auction No. 31 Package Bidding Further should be proportional to bid amounts with most of the calculations never Comment Public Notice, three rather than bidding units. being used. Alternatively, we could comments were filed and no reply 5. The Bureau acknowledges that if all provide for immediate minimum comments were filed. bidders bid in a straightforward fashion, acceptable bid calculations for any new II. Calculation for Determining it is likely that current prices would be package, but that could allow Minimum Acceptable Bids the best estimate of the relative values individuals to flood the FCC bidding of the licenses/packages. Under these system with requests and possibly Background circumstances, the proposal made by disrupt the auction. 2. In the Auction No. 31 Package Pekec and Rothkopf might be a better 8. Balancing operational Bidding Procedures Public Notice, 65 FR approach to allocating the shortfall than considerations with the desire to set the 43361 (July 13, 2000) the Bureau that set forth by the Bureau. However, minimum acceptable bid at a level that adopted a three-part formula for the Bureau is concerned with two provides a realistic chance of a bid determining minimum acceptable bids. potential consequences of implementing becoming a provisional winner, the Specifically, the minimum acceptable a procedure that allocates shortfall Bureau adopts the procedure proposed bid for any license or package would be based on bid amounts. Such an in the Auction No. 31 Package Bidding the greater of: (i) the minimum opening allocation of the shortfall would (i) Further Comment Public Notice. For a bid; (ii) the bidder’s own previous high provide an incentive for bidders to game new package created after the close of VerDate 11 the prior round, part (iii) of the initial auction. However, Verizon disagrees lower bound on the last and best bid minimum acceptable bid will be with the Bureau’s decision to prohibit amount is equal to the minimum calculated by multiplying the number of from further bidding a bidder that opening bid for that package or license. bidding units in the package by the chooses to make a last and best bid. 16. The Bureau believes that the lowest $/bidding unit of any Verizon claims that the Bureau’s procedure for placing last and best bids provisionally winning bid in the last proposal is inconsistent with the public provides a bidder that is dropping out five rounds. This exception will not interest because it could prematurely of the auction with sufficient flexibility apply to a global package whose reduce the number of participants in the to pursue its current business strategies, minimum acceptable bid will always be auction, ultimately resulting in an while maintaining bidding rules (a percentage of) the maximum revenue inefficient assignment of licenses. consistent with the overall auction from the previous round. Verizon urges the Bureau to apply the structure. Moreover, providing bidders 9. After each round, the Bureau will, last and best bid option to licenses and with opportunities in each round to for every bidder, calculate part (iii) of packages, rather than bidders. Verizon place bids below the minimum the minimum acceptable bid price based further requests that the Bureau clarify acceptable bid amount may significantly on shortfall allocation for every license or confirm that the second opportunity slow the pace of the auction. Having a and for every constructed package. to place a last and best bid means that bidder-specific procedure, rather than a When there is no previous high bid a bidder whose last and best bid was bid-specific procedure, is also more because the bidder has not bid on a bested by another bidder has an straightforward to implement. The license or an already created package, opportunity to place an additional last Bureau believes that bidders are we will use the minimum opening bid and best bid on another license or unlikely to exit the auction prematurely, as the previous high bid to calculate package. Verizon also asks that the as Verizon argues, because they may part (iii) of the minimum acceptable bid Bureau provide bidders an example that renew their bids and utilize activity rule rule; and part (ii) of the rule does not applies this two-round process to a waivers to prevent eligibility reduction. apply. hypothetical set of last and best bids. 14. The Bureau clarifies the procedure The following is a simple example of the III. ‘‘Last and Best’’ Bids procedures for last and best bids. Bidder A for placing last and best bids as follows. desires to win the Great Lakes 10 MHz Background A bidder may make up to two sets of license and either a package of the two last and best bids. The two sets of last 10. In the Auction No. 31 Package licenses in the Pacific region or a package of and best bids must be submitted in a the two licenses in the Northeast region. To Bidding Procedures Public Notice the single round, but will be treated as meet this objective, Bidder A has been Bureau adopted a ‘‘last and best’’ bid mutually exclusive, as are bids placed bidding on the Great Lakes 10 MHz license procedure. Specifically, bidders that in two separate rounds. Once last and and a package consisting of both the 10 MHz wish to drop out of the auction would best bids are placed, the bidder will not and the 20 MHz licenses in the Pacific region have the opportunity before they drop be permitted to place new bids or renew in even rounds while bidding on the Great out to make a ‘‘last and best’’ bid on any previous bids in any subsequent round. Lakes 10 MHz license and a package packages for which they remain eligible. consisting of both the 10 MHz and the 20 If a bidder chooses to submit two sets MHz licenses in the Northeast region in odd Such bids could be of any amount (in of last and best bids, then, for the thousand dollar increments) between rounds. Because of the mutual exclusivity of remainder of the auction, the ‘‘solver’’ bids placed in different rounds, this strategy their previous high bid and the (computer software) will consider those will ensure that Bidder A does not win more minimum acceptable bid. A bidder that two sets of bids. If a bidder chooses to than it wants. Suppose that Bidder A has submits a last and best bid(s) would not submit only one set of last and best bids, decided to place last and best bids. Bidder A be permitted to make any further bids in then, for the remainder of the auction, may create a set of last and best bids the auction. the solver will consider this set of bids comprised of a bid on the Great Lakes 10 11. In the Auction No. 31 Package and the set of bids from the last round MHz license and a bid on the Pacific region Bidding Further Comment Public in which the bidder placed bids. The package. Bidder A may also submit a second set of last and best bids comprised of a bid Notice, we proposed modifying the last only other bids that would be and best bid procedure to allow a bidder on the Great Lakes 10 MHz license and a bid considered in a round for a bidder that on the Northeast region package. In this to submit two sets of mutually exclusive places last and best bids are example, the last and best bid procedure last and best bids. We proposed that in provisionally winning bids from the affords the bidder the opportunity to value determining the provisionally winning previous round. the Great Lakes 10 MHz license differently in bid(s), the round solver would consider 15. Each set of last and best bids may the two sets according to its synergistic these two sets of mutually exclusive consist of bids on any or all of the relation to the other bids in each set. bids as well as any of the bidder’s bids licenses and any or all of the packages IV. Ties With the FCC at the Minimum that remain in the provisionally created by the bidder, consistent with Opening Bid winning set. the activity rules and the twelve package limitation. The last and best bid 17. In the Auction No. 31 Package Discussion amount for any license or package is any Bidding Procedures Public Notice, we 12. In their comments, Pekec and amount, in thousand dollar increments, stated that individual licenses on which Rothkopf state that the Bureau’s greater than or equal to the bidder’s no bids are available to be considered proposed modifications, particularly in previous high bid on the license or when solving for the provisionally the case of last and best bid provisions, package and less than or equal to the winning set will be treated as having a are of limited importance and are not ninth increment above the minimum bid by the FCC at the minimum opening sufficient to affect the overall quality of acceptable bid for that license or bid. We now wish to clarify treatment the auction. package. Note that placing a last and of FCC bids where there are other bids 13. Verizon supports the Bureau’s best bid equal to the bidder’s previous available to be considered for the general plan to allow bidders the high bid will be considered as a provisionally winning set. opportunity to make a last and best bid renewed bid when applying activity Implementing the minimum opening on any package for which they remain rules. Also, if the bidder has never bid requirement by treating the FCC as eligible before they drop out of the placed a bid on a package or license, the having a bid on each license at the VerDate 11 minimum opening bid could result in auction software, will run over the Attachment J to the Auction No. 31 the FCC retaining a license even though Internet. To use this software, your Procedures Public Notice. We again note a bidder had an equivalent minimum computer must have the minimum that resolution of these pending matters opening bid on that license. To ensure hardware and software listed in the could have an impact on the availability that a bid on a license or package at the attachment titled Electronic Filing and of spectrum for licensees in the 746–764 minimum opening bid always beats the Review of the FCC Form 175. and 776–794 MHz bands. While the FCC bid, the Bureau will treat all 21. To participate in the test, send an Commission will continue to act on licenses as having FCC bids at some e-mail to [email protected] by 4 p.m. ET pending matters, some of these matters small amount less than the minimum on January 17, 2001. Please include may not be resolved by the time of opening bid. your company name and the name and Auction No. 31. Potential bidders are e-mail address of the person we should strongly encouraged to conduct their V. Comments on Other Package Bid contact with any questions. If you want own research prior to Auction No. 31 in Provisions our response sent to a different address order to determine the existence of 18. Comments filed by Paul Milgrom than where you sent from, please pending proceedings that might affect and Charles Plott addressed some include that return e-mail address as their decisions regarding participation matters that are beyond the scope of the well. The Bureau will e-mail to that in the auction. Participants in Auction Auction No. 31 Package Bidding Further address the URL of our test system, No. 31 are strongly encouraged to Comment Public Notice and upon along with a bidder ID and password continue such research during the which other parties have not had an that you will need to access the system. auction. opportunity to comment. That VIII. Due Diligence IX. Other Procedural Issues document sought comment specifically on the calculation for determining 22. Potential bidders are reminded 25. Since the release of the Auction minimum acceptable bids and the last that there are a number of incumbent No. 31 Package Bidding Procedures and best bid procedures. While we broadcast television licensees already Public Notice, there have been changes appreciate the input provided by licensed and operating in the 746–764 in the Competitive Bidding Rules that commenters, we cannot at this time and 776–794 MHz bands (television will apply to Auction No. 31. The make any further changes to our Channels 60–62 and 65–67) that will be Bureau has set forth significant package bidding procedures. The subject to the upcoming auction. Listed amendments to the Competitive Bidding auction is scheduled to begin on March in Attachment J to the Auction No. 31 Rules, but it is the responsibility of each 6, 2001, and short-form applications are Procedures Public Notice, 65 FR 21196 applicant to carefully review and due on February 2, 2001. We are (April 20, 2000) are facilities of comply with all applicable rules. confident that the package bidding incumbent television permittees and licensees on television Channels 60–62 Ownership Disclosure Requirements procedures we have established for (Form 175 Exhibit A) Auction No. 31 will work effectively. and 65–67 as well as on adjacent We will revisit our package bidding television Channels 59, 63, 64, and 68. 26. All applicants must comply with procedure whenever we consider the However, prospective bidders should the uniform part 1 ownership disclosure use of package bidding for another not rely solely on this list, but should standards and provide information auction. carefully review the Commission’s required by §§ 1.2105 and 1.2112 of the databases and records before Commission’s rules. Specifically, in VI. Auction Schedule formulating bidding strategies. completing Form 175, applicants will be 19. The Commission set forth the 23. In addition, there are several required to file an Exhibit A providing following dates which will govern the pending applications and rule making a full and complete statement of the conduct of Auction No. 31: petitions for new analog and digital ownership of the bidding entity. The television authorizations on channel 59 Opening of the Form 175 Filing ownership disclosure standards for the which, if granted, would become Window: January 11, 2001 short-form are set forth in § 1.2112 of Bidders’ Seminar: January 23, 2001 additional incumbents on that channel. the Commission’s rules. Industry Test: January 24–26, 2001; 9 Information on pending applications can be found in the Mass Media Provisions Regarding Defaulters and a.m. to 5 p.m. ET Former Defaulters (Form 175, Exhibit D) Filing Deadline for FCC Form 175: Bureau’s Consolidated Database System February 2, 2001; 6 p.m. ET on the Commission’s website. The 27. Each applicant must certify on its Upfront Payment Deadline: February 16, Commission makes no representations FCC Form 175 application that it is not 2001; 6 p.m. ET or guarantees regarding the accuracy or in default on any Commission licenses Bidding Preference Form Deadline: completeness of information that has and that it is not delinquent on any non- February 20, 2001; 6 p.m. ET been incorporated into the databases. tax debt owed to any Federal agency. In Mock Auction: March 1–2, 2001 Potential bidders are strongly addition, each applicant must attach to Auction Start Date: March 6, 2001 encouraged to physically inspect any its FCC Form 175 application a sites located in or near the geographic statement made under penalty of VII. Industry Test of the Package area for which they plan to bid. perjury indicating whether or not the Bidding System 24. As more fully discussed in the applicant (or any of the applicant’s 20. As stated, package bidding is a Auction No. 31 Procedures Public controlling interests or their affiliates, as new concept in our auctions program. Notice, we remind potential bidders that defined by § 1.2110 of the Commission’s To further facilitate understanding and certain applications (including those for rules, as recently amended in the Part participation, the Bureau has scheduled modification), petitions for rulemaking, 1 Fifth Report and Order) has ever been an industry test that will help potential waiver requests, requests for special in default on any Commission licenses bidders and other interested parties to temporary authority (‘‘STA’’), petitions or has ever been delinquent on any non- become familiar with the system. The to deny, petitions for reconsideration, tax debt owed to any federal agency. industry test will run from 9 a.m. to 5 and applications for review may be Applicants must include this statement p.m. Eastern Time on January 24, 25 & pending before the Commission that as Exhibit D of the FCC Form 175. 26, 2001. The test software, like the relate to the facilities listed in Prospective bidders are reminded that VerDate 11 the statement must be made under in addition to, and separate from, any consensus views or proposals penalty of perjury and that submission other bidding credit for which a introduced by the Advisory Committee’s of a false certification to the winning bidder may qualify. Informal Working Groups. Commission is a serious matter that may 32. Unlike other bidding credits that DATES: February 16, 2001; 10 a.m.–12 result in severe penalties, including are requested prior to the auction, a noon. monetary forfeitures, license winning bidder applies for the tribal ADDRESSES: Federal Communications revocations, exclusion from land bidding credit after winning the Commission, 445 12th Street, SW., participation in future auctions, and/or auction when it files its long-form Room TW–C305, Washington DC 20554. criminal prosecution. application (FCC Form 601). In order for 28. ‘‘Former defaulters’’—i.e., a winning bidder to be awarded a tribal FOR FURTHER INFORMATION CONTACT: Julie applicants, including their attributable land bidding credit, it must provide Garcia, FCC International Bureau, interest holders, that in the past have specific certifications regarding the Planning and Negotiations Division, at defaulted on any Commission licenses servicing of tribal lands and is subject (202) 418–0763. or been delinquent on any non-tax debt to specific performance criteria as set SUPPLEMENTARY INFORMATION: The owed to any Federal agency, but that forth in 47 CFR 1.2110(e). Federal Communications Commission have since remedied all such defaults 33. For additional information on the (FCC) established the WRC–03 Advisory and cured all of their outstanding non- tribal land bidding credit, including Committee to provide advice, technical tax delinquencies—are eligible to bid in how to determine the amount of credit support and recommendations relating Auction No. 31, provided that they are available, see Public Notice, DA 00– to the preparation of United States otherwise qualified. However, as 2219, released September 28, 2000, proposals and positions for the 2003 discussed, former defaulters are entitled Wireless Telecommunications World Radiocommunication Conference required to pay upfront payments that Bureau Announces Availability of (WRC–03). In accordance with the are fifty percent more than the normal Bidding Credits for Providing Wireless Federal Advisory Committee Act, Public upfront payment amounts. Services to Qualifying Tribal Lands, 15 Law 92–463, as amended, this notice FCC Rcd. 18351 (2000). advises interested persons of the second Amount of Upfront Payment meeting of the WRC–03 Advisory Auctions Discount Voucher 29. In the Part 1 Order, Memorandum Committee. The WRC–03 Advisory Opinion and Order, and Notice of 34. On June 8, 2000, the Commission Committee has an open membership. Proposed Rule Making, 62 13540 (March awarded Qualcomm, Inc. a transferable All interested parties are invited to 21, 1997) the Commission delegated to Auction Discount Voucher in the participate in the Advisory Committee the Bureau the authority and discretion amount of $125,273,878.00. This, and to attend its meetings. The to determine an appropriate upfront Auction Discount Voucher may be used proposed agenda for the second meeting payment for each license being by Qualcomm or its transferee, in whole is as follows: or in part, to adjust a winning bid in any auctioned. The Bureau set forth the Agenda amount of the upfront payment spectrum auction prior to June 8, 2003, associated with each of the 12 licenses subject to terms and conditions set forth Second Meeting of the WRC–03 available in this auction. Those amounts in the Commission’s Order. Advisory Committee, Federal remain unchanged. Federal Communications Commission. Communications Commission, 445 12th Street, SW., Room TW–C305, 30. The upfront payment amount for Margaret Wiener, ‘‘former defaulters,’’ i.e., applicants that Washington, DC 20554, February 16, Chief, Auctions and Industry Analysis 2001; 10 a.m.–12 noon have ever been in default on any Division, Wireless Telecommunications Commission license or have ever been Bureau. 1. Opening Remarks. 2. Approval of Agenda. delinquent on any non-tax debt owed to [FR Doc. 01–2248 Filed 1–25–01; 8:45 am] 3. IWG Reports. any Federal agency, will be fifty percent BILLING CODE 6712–01–P more than the normal amount required 4. Consideration of Consensus Views to be paid. Former defaulters should or Proposals. 5. Future Meetings. calculate their upfront payment for all FEDERAL COMMUNICATIONS 6. Other Business. licenses by multiplying the number of COMMISSION bidding units they wish to purchase by Federal Communications Commission. 1.5. In calculating the number of Second Meeting of the Advisory William F. Caton, bidding units to assign to former Committee for the 2003 World Deputy Secretary. defaulters, the Commission will divide Radiocommunication Conference [FR Doc. 01–2285 Filed 1–25–01; 8:45 am] the upfront payment received by 1.5 and (WRC–03 Advisory Committee) BILLING CODE 6712–01–P round the result up to the nearest AGENCY: bidding unit. Federal Communications Commission. FEDERAL COMMUNICATIONS X. Changes to Post Auction Procedures ACTION: Notice. COMMISSION Tribal Land Bidding Credit SUMMARY: In accordance with the 31. A winning bidder that intends to Federal Advisory Committee Act, this Network Reliability and Interoperability use its license(s) to deploy facilities and notice advises interested persons that Council provide services to federally-recognized the second meeting of the WRC–03 AGENCY: Federal Communications tribal lands that are unserved by any Advisory Committee will be held on Commission. telecommunications carrier or that have February 16, 2001, at the Federal ACTION: Notice of meeting. a telephone service penetration rate Communications Commission. The equal to or below 70 percent is eligible purpose of the meeting is to continue SUMMARY: In accordance with the to receive a tribal land bidding credit as preparations for the 2003 World Federal Advisory Committee Act, this set forth in 47 CFR 1.2107 and Radiocommunication Conference. The notice advises interested persons of the 1.2110(e). A tribal land bidding credit is Advisory Committee will consider any third meeting of the Network Reliability VerDate 11 and Interoperability Council (Council) competition in the market for the operator and another MVPD in a under its charter renewed as of January delivery of video programming. On specific market. The 2000 Report is 6, 2001. January 2, 2001, the Commission based on publicly available data, filings DATES: Wednesday, February 27, 2001 at adopted its seventh annual report in various Commission rulemaking 2 p.m. to 4 p.m. (‘‘2000 Report’’). The 2000 Report proceedings, and information submitted by commenters in response to a Notice ADDRESSES: Federal Communications contains data and information that of Inquiry (65 FR 49804) in this docket. Commission, 445 12th St. SW., Room summarize the status of competition in 3. In the 2000 Report, the Commission TW–C305, Washington, DC. markets for the delivery of video programming and updates the finds that competitive alternatives and FOR FURTHER INFORMATION CONTACT: Kent Commission’s prior reports. consumer choices continue to develop. R. Nilsson at 202–418–0845 or TTY FOR FURTHER INFORMATION CONTACT: Cable television still is the dominant 202–418–2989. Marcia Glauberman, Cable Services technology for the delivery of video SUPPLEMENTARY INFORMATION: The Bureau, (202) 418–7200, TTY (202) 418– programming to consumers in the Council was established by the Federal 7172. MVPD marketplace, although its market Communications Commission to bring share continues to decline. As of June SUPPLEMENTARY INFORMATION: This is a together leaders of the 2000, 80 percent of all MVPD synopsis of the Commission’s 2000 telecommunications industry and subscribers received their video Report in CS Docket No. 00–132, FCC telecommunications experts from programming from a local franchised 01–1, adopted January 2, 2001, and academic, consumer and other cable operator, compared to 82 percent released January 8, 2001. The complete organizations to explore and a year earlier. There has been an text of the 2000 Report is available for recommend measures that would increase in the total number of inspection and copying during normal enhance network reliability. subscribers to non-cable MVPDs over business hours in the FCC Reference The Council will receive reports on the last year, which is primarily Center, 445 12th Street, SW., and discuss the progress of its three attributable to the growth of DBS Washington, DC, 20554, and may also focus groups: Y2K, Network Reliability, service. However, generally, there have be purchased from the Commission’s and Interoperability. The Council may been declines in the number of copy contractor, International also discuss such other matters as come subscribers and market shares of MVPDs Transcription Service (‘‘ITS, Inc.’’), before it at the meeting. Members of the using other distribution technologies. (202) 857–3800, 1231 20th Street, NW., general public may attend the meeting. Significant competition from local Washington, DC 20036. In addition, the The Federal Communications telephone companies has not generally complete text of the 2000 Report is Commission will attempt to developed even though the available on the Internet at http:// accommodate as many people as Telecommunications Act of 1996 (‘‘1996 www.fcc.gov/csb/csrptpg.html. possible. Admittance, however, will be Act’’) removed some barriers to LEC limited to the seating available. The Synopsis of the 2000 Report entry into the video marketplace. 4. Key Findings: public may submit written comments 1. The Commission’s 2000 Report to • before the meeting to Kent Nilsson, the Industry Growth: A total of 84.4 Congress provides information about the million households subscribed to Commission’s Designated Federal cable television industry and other Officer for the Network Reliability and multichannel video programming multichannel video programming services as of June 2000, up 4.4 percent Interoperability Council, by email distributors (‘‘MVPDs’’), including ([email protected]) or U.S. mail over the 80.9 million households direct broadcast satellite (‘‘DBS’’) subscribing to MVPDs in June 1999. (7–B452, 445 12th St. SW., Washington, service, home satellite dishes (‘‘HSDs’’), DC 20554). Real Audio and streaming This subscriber growth accompanied a wireless cable systems using frequencies 2.4 percentage point increase in video Access to the meeting will be in the multichannel multipoint available at http://www.fcc.gov/. multichannel video programming distribution service (‘‘MMDS’’) and distributors’ penetration of television Federal Communications Commission. instructional television fixed service households to 83.8 percent as of June William F. Caton, (‘‘ITFS’’), private cable or satellite 2000. The number of cable subscribers Deputy, Secretary. master antenna television (‘‘SMATV’’) continued to grow, reaching 67.7 [FR Doc. 01–2284 Filed 1–25–01; 8:45 am] systems, as well as broadcast television million as of June 2000, up about 1.5 BILLING CODE 6712–01–P service. The Commission also considers percent over the 66.7 million cable several other existing and potential subscribers in June 1999. The total distribution technologies for video number of non-cable MVPD households FEDERAL COMMUNCIATIONS programming, including the Internet, grew from 14.2 million as of June 1999 COMMISSION home video sales and rentals, local to 16.7 million homes as of June 2000, exchange telephone carriers (‘‘LECs’’), an increase of almost 18 percent. The [CS Docket No. 00–132, FCC 01–1] and electric and gas utilities. growth of non-cable MVPD subscribers Annual Assessment of the Status of 2. The Commission also examines the continues to be primarily attributable to Competition in the Market for the market structure and competition. We the growth of DBS. Between June 1999 Delivery of Video Programming evaluate horizontal concentration in the and June 2000, the number of DBS multichannel video marketplace and subscribers grew from 10.1 million AGENCY: Federal Communications vertical integration between cable households to almost 13 million Commission. television systems and programming households, which is nearly three times ACTION: Notice. services. In addition, the 2000 Report the cable subscriber growth rate. DBS addresses competitors serving multiple subscribers now represent 15.4 percent SUMMARY: This document is in dwelling unit buildings (‘‘MDUs’’), of all MVPD subscribers, up from 12.5 compliance with the Communications programming issues, technical percent a year earlier. Act of 1934, as amended, which advances, and examines a limited • Convergence of Cable and Other requires the Commission to report number of cases where consumers have Services: The 1996 Act removed barriers annually to Congress on the status of a choice between an incumbent cable to LEC entry into the video marketplace VerDate 11 in order to facilitate competition subscribership has been attributed, at options and other services (e.g., data between incumbent cable operators and least in part, to the authority granted to access, telephony, and interactive telephone companies. It was expected DBS providers to distribute local services) to their subscribers. To access that local exchange telephone carriers broadcast television stations in their these wide ranging services, consumers would begin to compete in video local markets by the Satellite Home use ‘‘navigation devices.’’ The delivery markets, and cable operators Viewer Improvement Act of 1999 Commission adopted rules that required would begin to provide local telephone (‘‘SHVIA’’) enacted on November 29, MVPDs to unbundle security from other exchange service. The Commission 1999. Under SHVIA, DBS operators can functions of digital set-top boxes by July previously reported that there had been offer a programming package more 1, 2000. The cable industry reports that an increase in the amount of video comparable to and competitive with the cable operators have met this deadline programming provided to consumers by services offered by cable operators. to have digital separate security telephone companies, although the • Horizontal Concentration: modules available for consumers. expected technological convergence that Consolidations within the cable Interface requirements and a would permit use of telephone facilities industry continue as cable operators certification process for the high-speed for video service had not yet occurred. acquire and trade systems. The ten cable modems needed to access data This year, we find that the rate of entry largest operators now serve close to 90 services have also been developed. by LECs appears to be slowing even by percent of all U.S. cable subscribers. In Cable modems are now for sale in the most aggressive telephone terms of one traditional economic selected markets. The Commission companies, and several LECs have measure, the Herfindahl-Hirschman expects these developments to increase reduced or eliminated their MVPD Index or HHI, national concentration competition in the market for efforts. Alternatively, only a limited among the top MVPDs has increased equipment used by subscribers. In number of cable operators have begun to since last year, although it remains addition, in the last year, interactive offer telephone service and their below the levels reported in earlier television (‘‘ITV’’) services are strategies for deployment remain varied, years. DBS operators DirecTV and beginning to be offered through cable, with some companies deploying EchoStar rank among the ten largest satellite, and terrestrial technologies. traditional circuit-switched telephone MVPDs in terms of nationwide ITV provides or has the potential to service and others either offering cable- subscribership along with eight cable provide a wide range of services, delivered telephony on a limited basis, multiple system operators (‘‘MSOs’’). As including video on demand (‘‘VOD’’), e- waiting until Internet Protocol (‘‘IP’’) a result of acquisitions and trades, cable mail, TV-based commerce, Internet technology becomes available, or MSOs have continued to increase the access, and program-related content, continuing to test such service. The extent to which their systems form using digital set-top boxes and other most significant convergence of service regional clusters. Currently, 44 million devices that interface with television offerings continues to be the pairing of of the nation’s cable subscribers are receivers (e.g., WebTV). served by systems that are included in Internet service with other services. Ordering Clauses There is evidence that a wide variety of regional clusters. By clustering their companies throughout the systems, cable operators may be able to 5. This 2000 Report is issued pursuant communications industries are achieve efficiencies that facilitate the to authority contained in sections 4(i), attempting to become providers of provision of cable and other services, 4(j), 403, and 628(g) of the such as telephony. multiple services, including data access. Communications Act of 1934, as • Vertical Integration: The number of • amended, 47 U.S.C. 154(i), 154(j), 403, Promotion of Entry and satellite-delivered programming and 548(g). Competition: Noncable MVPDs continue networks has decreased by two from 283 6. The Office of Legislative and to report that regulatory and other in 1999 to 281 in 2000. Vertical Intergovernmental Affairs shall send barriers to entry limit their ability to integration of national programming copies of the 2000 Report to the compete with incumbent cable services between cable operators and appropriate committees and operators and to thereby provide programmers, measured in terms of the subcommittees of the United States consumers with additional choices. total number of services in operation, House of Representatives and United Non-cable MVPDs also continue to declined from last year’s total of 37 States Senate. experience some difficulties in percent to 35 percent this year, 7. The proceeding in CS Docket No. obtaining programming from both continuing a five year trend. In 2000, 00–132 IS TERMINATED. vertically integrated cable programmers one or more of the top five cable MSOs Federal Communications Commission. and unaffiliated programmers who held an ownership interest in each of 99 Magalie Roman Salas, continue to make exclusive agreements vertically integrated national Secretary. with cable operators. In multiple programming services. The 2000 Report dwelling units (‘‘MDUs’’), potential also identifies 75 regional networks, 27 [FR Doc. 01–2375 Filed 1–25–01; 8:45 am] entry may be discouraged or limited of which are sports channels, many BILLING CODE 6712–01–U because an incumbent video owned at least in part by MSOs, and 30 programming distributor has a long-term regional and local news networks that FEDERAL COMMUNICATIONS and/or exclusive contract. Other issues compete with local broadcast stations COMMISSION also remain with respect to how, and and national cable networks (e.g., CNN). under what circumstances, existing • Technological Advances: Cable [CS DOCKET NO. 01–7, FCC 01–15] inside wiring in MDUs may be made operators and other MVPDs continue to available to alternative video service develop and deploy advanced Nondiscrimination in the Distribution providers. Consumers historically technologies, especially digital of Interactive Television Services Over reported that their inability to receive compression techniques, to increase the Cable local signals from DBS operators capacities and to enhance the AGENCY: Federal Communications negatively affected their decision as to capabilities of their transmission Commission. whether to subscribe to DBS. This year’s platforms. These technologies allow ACTION: Notice of inquiry. significant increase in DBS MVPDs to deliver additional video VerDate 11 SUMMARY: In this document, the 2. The Notice seeks comment on what nine copies must be filed. If more than Commission seeks comment on whether services constitute ITV services, what one docket or rulemaking number rules should be considered to ensure entities constitute ITV providers, how appears in the caption of this that interactive television (‘‘ITV’’) ITV services will be delivered, what proceeding commenters must submit services develop in a competitive business models will govern the two additional copies for each fashion. In the Memorandum Opinion delivery of ITV services to consumers, additional docket or rulemaking and Order in CS Docket 01–30, the and the general status of an ITV services number. All filings must be sent to the Commission found that important market. The Notice seeks comment on Commission’s Secretary, Magalie Roman questions were raised regarding ITV whether, if it were determined that Salas, Office of the Secretary, Federal services that warrant further operators of cable systems (or another Communications Commission, 445 12th examination in a proceeding of general delivery platform) had the incentive and Street, SW., Washington, DC 20554. The applicability. Accordingly, in this ability to behave anti-competitively Cable Services Bureau contact for this document the Commission considers vis-a-vis ITV service providers, the proceeding is Royce Dickens. whether industry-wide rules are needed Commission should consider 6. Parties who choose to file by paper to address any impediments to the prohibiting those operators from should also submit their comments on development of ITV services and discriminating between affiliated and diskette. Parties should submit diskettes markets. unaffiliated ITV service providers. to Royce Dickens, Cable Services 3. The Notice also seeks comment on Bureau, 445 12th Street SW., Room DATES: Comments are due on or before the legal classifications of ITV services, 3A729, Washington, DC 20554. Such a March 19, 2001; Reply Comments are what public policy and statutory submission should be on a 3.5-inch due on or before April 20, 2001. objectives ITV rules would promote, diskette formatted in an IBM compatible ADDRESSES: Parties who choose to file and the Commission’s authority to form using MS DOS 5.0 and Microsoft by paper should send comments to the protect this market. The Notice asks Word, or compatible software. The Commission’s Secretary, Magalie Roman questions about enforcement of any new diskette should be accompanied by a Salas, Office of the Secretary, Federal rules, proposing alternatively a cover letter and should be submitted in Communications Commission, 445 12th voluntary arbitration, subject to judicial ‘‘read only’’ mode. The diskette should Street, SW., Washington, DC 20554. review, or a Commission complaint be clearly labeled with the party’s name, Parties who choose to file by paper procedure. proceeding (including the lead docket should also submit their comments on Filing Procedures number in this case CS Docket No. diskette. Parties should submit diskettes 01–7), type of pleading (comments or to Royce Dickens, Cable Services 4. Pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the reply comments), date of submission, Bureau, 445 12th Street SW., Room and the name of the electronic file on 3A729, Washington, DC 20554. In Commission’s Rules, 47 CFR 1.415 and 1.419, interested parties may file the diskette. The label should also addition, commenters must send include the following phrase ‘‘Disk diskette copies to the Commission’s comments in response to this Notice on or before March 19, 2001 and reply Copy—Not an Original.’’ Each diskette copy contractor, International should contain only one party’s Transcription Service, 445 12th Street, comments on or before April 20, 2001. Comments may be filed using the pleadings, referable in a single SW., CY–B400, Washington, DC 20554. electronic file. In addition, commenters Comments filed through the Commission’s Electronic Comment Filing System (‘‘ECFS’’) or by filing must send diskette copies to the Commission’s Electronic Comment Commission’s copy contractor, Filing System (ECFS) can be sent as an paper copies. Comments filed through the ECFS can be sent as an electronic International Transcription Service, 445 electronic file via the Internet to 12th Street, SW., CY–B400, Washington, http://www.fcc.gov/e-file/ecfs.html. file via the Internet to VerDate 11 Matters concerning participation in civil you find necessary for Federal disaster FOR FURTHER INFORMATION CONTACT: actions or proceedings or arbitration. assistance and administrative expenses. Madge Dale, Response and Recovery Internal personnel rules and procedures You are authorized to provide Public Directorate, Federal Emergency or matters affecting a particular Assistance and Hazard Mitigation in the Management Agency, Washington, DC employee. designated areas and any other forms of 20472, (202) 646–3772. assistance under the Stafford Act you may * * * * * deem appropriate. Consistent with the SUPPLEMENTARY INFORMATION: Notice is PREVIOUSLY ANNOUNCED DATE & TIME: requirement that Federal assistance be hereby given that the incident period for Thursday, February 1, 2001, 10 a.m. supplemental, any Federal funds provided this disaster is closed effective January Meeting open to the public. under the Stafford Act for Public Assistance 15, 2001. or Hazard Mitigation will be limited to 75 This Meeting was Cancelled. (The following Catalog of Federal Domestic percent of the total eligible costs. Assistance Numbers (CFDA) are to be used PERSON TO CONTACT FOR INFORMATION: Further, you are authorized to make Mr. Ron Harris, Press Officer, for reporting and drawing funds: 83.537, changes to this declaration to the extent Community Disaster Loans; 83.538, Cora Telephone: (202) 694–1220. allowable under the Stafford Act. Brown Fund Program; 83.539, Crisis Mary W. Dove, Notice is hereby given that pursuant Counseling; 83.540, Disaster Legal Services Program; 83.541, Disaster Unemployment Acting Secretary of the Commission. to the authority vested in the Director of the Federal Emergency Management Assistance (DUA); 83.542, Fire Suppression [FR Doc. 01–2441 Filed 1–23–01; 4:34 pm] Assistance; 83.543, Individual and Family BILLING CODE 6715–01–M Agency under Executive Order 12148, I Grant (IFG) Program; 83.544, Public hereby appoint Carlos N. Mitchell of the Assistance Grants; 83.545, Disaster Housing Federal Emergency Management Agency Program; 83.548, Hazard Mitigation Grant FEDERAL EMERGENCY to act as the Federal Coordinating Program.) MANAGEMENT AGENCY Officer for this declared disaster. Lacy E. Suiter, I do hereby determine the following Executive Associate Director, Response and [FEMA–1357–DR] areas of the State of Louisiana to have Recovery Directorate. been affected adversely by this declared [FR Doc. 01–2362 Filed 1–25–01; 8:45 am] Louisiana; Major Disaster and Related major disaster: Determinations BILLING CODE 6718–02–P Bienville, Caddo, Claiborne, Lincoln, AGENCY: Federal Emergency Union, and Webster Parishes for Public Management Agency (FEMA). Assistance. DEPARTMENT OF HEALTH AND ACTION: Notice. All parishes within the State of HUMAN SERVICES Louisiana are eligible to apply for SUMMARY: Office of the Secretary This is a notice of the assistance under the Hazard Mitigation Presidential declaration of a major Grant Program. disaster for the State of Louisiana Notice of Meeting: Secretary’s (FEMA–1357–DR), dated January 12, (The following Catalog of Federal Domestic Advisory Committee on Generic 2001, and related determinations. Assistance Numbers (CFDA) are to be used Testing for reporting and drawing funds: 83.537, EFFECTIVE DATE: January 12, 2001. Community Disaster Loans; 83.538, Cora Pursuant to Public Law 92–463, FOR FURTHER INFORMATION CONTACT: Brown Fund Program; 83.539, Crisis notice is hereby given of the seventh Madge Dale, Response and Recovery Counseling; 83.540, Disaster Legal Services meeting of the Secretary’s Advisory Directorate, Federal Emergency Program; 83.541, Disaster Unemployment Committee on Genetic Testing (SACGT), Management Agency, Washington, DC Assistance (DUA); 83.542, Fire Suppression U.S. Public Health Service. The meeting 20472, (202) 646–3772. Assistance; 83.543, Individual and Family will be held from 9 a.m. to 3:15 p.m. on Grant (IFG) Program; 83.544, Public SUPPLEMENTARY INFORMATION: Notice is Assistance Grants; 83.545, Disaster Housing February 15, 2001 and 10:15 a.m. to 4:30 hereby given that, in a letter dated Program; 83.548, Hazard Mitigation Grant p.m. on February 16, 2001 at the January 12, 2001, the President declared Program.) National Institutes of Health, Building a major disaster under the authority of James L. Witt, 31, C Wing, Conference Room 10, 9000 the Robert T. Stafford Disaster Relief Director. Rockville Pike, Bethesda, MD 20892. The meeting will be open to the public and Emergency Assistance Act, 42 USC [FR Doc. 01–2363 Filed 1–25–01; 8:45 am] with attendance limited to space 5121, et seq., as amended by the BILLING CODE 6718–02–P Disaster Mitigation Act of 2000, Pub. L. available. 106–390, 114 Stat. 1552 (2000), as The Committee will discuss a number of topics, including a proposed follows: FEDERAL EMERGENCY classification methodology for genetic MANAGEMENT AGENCY I have determined that the damage in tests; a draft genetic test information certain areas of the State of Louisiana, template for health professionals; and a resulting from a severe winter ice storm [FEMA–1356–DR] beginning December 11, 2000, and draft white paper on genetics education continuing through January 3, 2001, is of Texas; Amendment No. 1 to Notice of for health professionals. Breakout sufficient severity and magnitude to warrant a Major Disaster Declaration sessions are scheduled for SACGT’s a major disaster declaration under the Robert working groups to meet and discuss T. Stafford Disaster Relief and Emergency AGENCY: Federal Emergency ongoing and future projects. The Assistance Act, 42 USC 5121, et seq., as Management Agency (FEMA). Committee will be updated on the amended by the Disaster Mitigation Act of ACTION: Notice. working groups’ activities and progress 2000, Pub. L. No. 106–390, 114 Stat. 1552 during the full Committee meeting. The (2000) (Stafford Act), I, therefore, declare that SUMMARY: This notice amends the notice Committee will also hear an update on such a major disaster exists in the State of of a major disaster for the State of Texas Louisiana. the activities of the Food and Drug In order to provide Federal assistance, you (FEMA–1356–DR), dated January 8, Administration. There will be a limited are hereby authorized to allocate from funds 2001, and related determinations. period of time provided for public available for these purposes, such amounts as EFFECTIVE DATE: January 15, 2001. comment and interested individuals VerDate 11 should notify the contact person listed The purpose of the Epidemiology and ELC program are not eligible to apply below. Laboratory Capacity in Infectious under this program announcement. Under authority of 42 U.S.C. 217a, Diseases (ELC) program is to assist State C. Availability of Funds Section 222 of the Public Health Service and eligible local public health agencies Act, as amended, the Department of in strengthening basic epidemiologic Approximately $5,250,000 is available Health and Human Services established and laboratory capacity to address in FY 2001 to fund approximately 15 SACGT to advise and make infectious disease threats with a focus awards. It is expected that the average recommendations to the Secretary on notifiable diseases, food-, water-, and award (total direct and indirect costs) through the Assistant Secretary for vector-borne diseases, vaccine- will be $350,000. Individual awards Health on all aspects of the preventable diseases, and drug-resistant may range from $100,000 to $500,000. It development and use of genetic tests. infections. Awards are intended to is expected that the awards will begin The SACGT is directed to (1) support activities that enhance the on or about April 1, 2001, and will be recommend policies and procedures for ability of a program to identify and made for a 12-month budget period the safe and effective incorporation of monitor the occurrence of infectious within a project period of up to five genetic technologies into health care; (2) diseases of public health importance in years. Funding estimates may change. assess the effectiveness of existing and a community, characterize disease Continuation awards within an future measures for oversight of genetic determinants, identify and respond to approved project period will be made tests; and (3) identify research needs disease outbreaks, use public health on the basis of satisfactory progress as related to the Committee’s purview. data for priority setting and policy evidenced by required reports and the The draft meeting agenda and other development, and assess the availability of funds. information about SACGT will be effectiveness of activities. Strengthening available at the following web site: collaboration between laboratory and Recipient Financial Participation http://www4.od.nih.gov/oba/sacgt.htm. epidemiology practice is seen as a Individuals who wish to provide public crucial component of this program. Although a requirement for matching funds is not a condition for receiving an comments or who plan to attend the This program is designed to support award under this cooperative agreement meeting and need special assistance, grantees in a variety of ways. For program, applicants must document the such as sign language interpretation or example, in health departments where non-Federal human and fiscal resources other reasonable accommodations, gaps in personnel and equipment are that will be available to conduct should notify the SACGT Executive identified as major barriers to effective activities outlined in the proposal. Secretary, Ms. Sarah Carr, by telephone surveillance and response, the ELC Federal funds cannot be used to replace at 301–496–9838 or E-mail at program can provide resources to hire or supplant existing State and local [email protected]. The SACGT office is staff or purchase necessary equipment. support. See Evaluation Criteria located at 6705 Rockledge Drive, Suite Funds can also be used to enhance (paragraph 6: Budget) for additional 750, Bethesda, Maryland 20892. ongoing activities. information. Dated: January 11, 2001. B. Eligible Applicants Sarah Carr, D. Program Requirements Executive Secretary, SACGT. Limited Competition In conducting activities to achieve the [FR Doc. 01–2326 Filed 1–25–01; 8:45 am] Assistance will be provided only to purpose of this program, the recipient BILLING CODE 4140–01–M the health departments of States or their will be responsible for the activities bona fide agents, including the District listed under 1. (Recipient Activities) of Columbia, the Commonwealth of and CDC will be responsible for the DEPARTMENT OF HEALTH AND Puerto Rico, the Virgin Islands, the activities listed under 2. (CDC HUMAN SERVICES Commonwealth of the Northern Mariana Activities). Islands, American Samoa, Guam, Centers for Disease Control and 1. Recipient Activities Prevention federally recognized Indian tribal governments, the Federated States of a. Enhance local capacity for [Program Announcement 01022] Micronesia, the Republic of the gathering and evaluating infectious Marshall Islands, and the Republic of disease surveillance data, detecting and Epidemiology and Laboratory Capacity Palau. In addition, official public health investigating outbreaks, and using for Infectious Diseases; Notice of agencies of city governments with surveillance data for public health Availability of Funds jurisdictional populations greater than practice and clinical follow-up. 1,500,000 or county governments with Applicants should analyze their current A. Purpose jurisdictional populations greater than surveillance infrastructure, identify gaps The Centers for Disease Control and 8,000,000 (based on 1990 census data) in core epidemiologic and laboratory Prevention (CDC) announces the are eligible to apply. capacity, and develop applications to availability of fiscal year (FY) 2001 The ELC program was initiated in this program announcement that funds for a cooperative agreement 1995 with Program Announcement address the needs of their respective program to promote adequate capacity 95043 and expanded in 1997 and 1999 health jurisdictions. National priority of local, State, and national efforts for with Program Announcements 97020 program areas are briefly described epidemiologic and laboratory and 99032, respectively. A total of 39 below and are examples of activities surveillance and response for infectious state and 4 local health departments that would be appropriate to propose diseases. This program addresses the have been funded to date. This under this program announcement. ‘‘Healthy People 2010’’ focus area of announcement is a further expansion of Applicants are encouraged to consider Immunization and Infectious Diseases. the ELC program and is intended to add activities in these areas, yet there is no For the conference copy of ‘‘Healthy new eligible applicants not already requirement to do so. Details and People 2010’’, visit the internet site: funded in the program. States, counties, example activities for each are provided VerDate 11 (1) Antimicrobial Resistance d. If during the project period If indirect costs are being charged, (Attachment 2) research involving human subjects include a copy of your organization’s Develop or improve health should be conducted and if CDC most current indirect cost rate department capacity for surveillance, scientists will be co-investigators in that agreement or cost allocation plan. prevention, and control of antimicrobial research, assist in the development of a Letters of support can be included if resistant infections. research protocol for IRB review by all applicants anticipate the participation institutions participating in the research of other organizations or political (2) Food-borne Disease (Attachment 3) project. The CDC IRB will review and subdivisions in conducting proposed Enhance capacity for investigation, approve the protocol initially and on at activities. Specific roles and control, and reporting of foodborne least an annual basis until the research responsibilities should be delineated. disease outbreaks and improve project is completed. Do NOT include any letters of support laboratory-based surveillance for E. Application Content from CDC. CDC assistance will be emerging foodborne pathogens. provided to all recipients as described Letter of Intent (LOI) in CDC Activities, above. (3) Hepatitis (Attachment 4) In order to assist CDC in planning and F. Submission and Deadline (a) Develop capacity to prevent and executing the evaluation of applications control hepatitis C virus (HCV) infection submitted under this announcement, all Letter of Intent (LOI) through activities that are integrated parties intending to submit an The Letter of Intent (LOI) should be into existing public health prevention application are requested to inform CDC submitted on or before February 9, 2001 services and programs. of their intention to do so not later than and can be provided by facsimile, postal (b) Enhance capacity for surveillance February 9, 2001. Notification should mail, or E-mail to the Grants of chronic hepatitis B virus (HBV) and include: (1) name and address of the Management Specialist identified in the hepatitis C virus (HCV) infection. institution, (2) name, address and ‘‘Where to Obtain Additional (4) Influenza (Attachment 5) telephone number of the contact person, Information’’ section of this and (3) a list of the activities/areas that announcement. Your letter of intent Develop and enhance capacity for will be addressed in the application. should include: (1) Name and address of influenza surveillance and response. This letter of intent will not be used in the institution, (2) name, address, and (5) National Electronic Disease evaluation of the application. telephone number of the contact person, Surveillance System (NEDSS) Notification should be provided by and (3) a list of the activities/areas that Assessment and Planning (Attachment facsimile, postal mail, or E-mail, to the will be addressed in the application. 6) Grants Management Specialist identified in the ‘‘Where to Obtain Application Assess current information systems Additional Information’’ section of this Submit the original and two copies of personnel and technical infrastructure announcement’’. and develop a plan for the CDC 0.1246(E). Forms are in the implementation of the NEDSS systems Application application kit. Submit the application to the Grants Management Specialist architecture (intended for applicants Use the information in this section identified in the ‘‘Where to Obtain that did not receive any NEDSS funding and in the Program Requirements, Other Additional Information’’ section of this from CDC in FY 2000). Requirements, and Evaluation Criteria announcement, on or before February sections to develop the application (6) West Nile Virus (Attachment 7) 23, 2001. content. Develop and implement effective Your application will be evaluated on Deadline: Applications shall be surveillance, prevention, and control of the criteria listed in Section G., so it is considered as meeting the deadline if West Nile virus and other arboviruses important that your narrative follow the they are either: that occur in the U.S. criteria in the order presented. (a) Received on or before the deadline b. Ensure appropriate representation The application narrative (excluding date; or at planning and priority-setting budget, budget narrative, appendices, (b) Sent on or before the deadline date meetings organized for recipients of this and required forms) must not exceed 20 and received in time for submission to cooperative agreement program, single-spaced pages, printed on one the independent review group. including sending two representatives side, with one inch margins, a font size (Applicants must request a legibly dated to the International Conference on no smaller than 10, and on white 8.5″ U.S. Postal Service postmark or obtain Emerging Infections scheduled for × 11″ paper. All pages must be clearly a legibly dated receipt from a March 2002 in Atlanta. numbered, a complete index to the commercial carrier or U.S. Postal c. If a proposed project involves application and its appendices must be Service. Private metered postmarks shall research on human participants, ensure included, and the required original and not be acceptable as proof of timely appropriate Independent Review Board two copies must be submitted unstapled mailing.) (IRB) review. and unbound (i.e., so it can be easily fed Late Applications: Applications through an automatic document feed which do not meet the criteria in (a) or 2. CDC Activities copier). (b) above are considered late a. Provide consultation and assistance To the extent possible, application applications, will not be considered, in enhancing local epidemiologic and narratives and budgets should clearly and will be returned to the applicant. laboratory capacity for surveillance and delineate separate and distinct program G. Evaluation Criteria response for infectious diseases. areas or groups of activities. b. Assist in monitoring and evaluating If any proposed activities involve Each application will be evaluated scientific and operational human subjects research, include plans individually against the following accomplishments and progress in to assure that appropriate Institutional criteria by an independent review group achieving the purpose of this program. Review Board (IRB) approval is appointed by CDC. c. Provide national coordination of obtained. Include protocols and IRB 1. Description of the population under activities where appropriate. review/approval status if available. surveillance, either the State or other VerDate 11 appropriate jurisdiction (if an applicant c. Includes current letters of support H. Other Requirements is a county, city, or other agency) (5 from participating agencies, institutions, Technical Reporting Requirements points). Extent to which the application and organizations indicating their provides information on the population willingness to participate in the Provide CDC with original plus two size, demographic characteristics, activities as proposed in the operational copies of: geographic distribution, racial/ethnic plan. 1. progress reports (annual), no more makeup, and health care delivery d. If any research involving human than 90 days after the end of the budget systems. subjects is proposed, has met the CDC period; 2. Description of existing public Policy requirements regarding the 2. financial status report, no more health infectious disease epidemiology, inclusion of women, ethnic, and racial than 90 days after the end of the budget laboratory, and information systems groups in any proposed research. This period; and capacity (15 points). Extent to which the includes: applicant: (1) The proposed plan for the 3. Final Financial Status and a. Describes existing infectious inclusion of both sexes and racial and Performance reports, no more than 90 disease surveillance and response ethnic minority populations for days after the end of the project period. activities, including reporting appropriate representation. Send all reports to the Grants requirements, spectrum of laboratory (2) The proposed justification when Management Specialist identified in the specimen testing performed, degree of representation is limited or absent. ‘‘Where to Obtain Additional automation of laboratory and (3) A statement as to whether the Information’’ section of this epidemiologic information management, design of the study is adequate to announcement. measure differences when warranted. and public health response capacity. Public Health Surveillance and b. Provides information on existing (4) A statement as to whether the Information Systems staffing, management, material and plans for recruitment and outreach for equipment investment, training, space, study participants include the process To modernize and enhance public and financial support of laboratory and of establishing partnerships with health surveillance and information epidemiologic capacity for public health community(ies) and recognition of systems, CDC and its public health surveillance and response for infectious mutual benefits. partners are implementing the NEDSS. diseases. 5. Plan for monitoring and evaluation CDC’s NEDSS implementation strategies c. Describes current collaboration (15 points). The extent to which the include ensuring that relevant activities between its epidemiology and applicant describes a detailed plan for funded through its various cooperative laboratory programs in surveillance and monitoring the implementation of the agreement programs will be consistent response including the existence of, or activities and evaluating the extent to with the functional and technical potential for, integrated uses of which the proposed activities specifications of the NEDSS information surveillance data; strengthen local and national architecture (www.cdc.gov/od/hissb/ d. Describes current or previous epidemiologic and laboratory capacity docs.htm). As part of the terms of this collaborative relationships with clinical for infectious diseases. program announcement, grantees agree laboratories, local health agencies, 6. Budget (not scored) to evaluate current activities with academic medicine groups, and health a. A detailed budget with a line-item respect to the NEDSS information care practitioners, including HMOs or justification and any other information systems architecture; plan how to managed care providers; and to demonstrate that the request for modify these activities, if necessary, so demonstrates the potential of these assistance is consistent with the that they are consistent with NEDSS relationships for enhanced surveillance purpose and objectives of this specifications; and, if possible, begin to and public health response activities. cooperative agreement program. implement NEDSS specifications in 3. Identification of areas of need b. Although matching funds are not a relevant activities. (gaps) in surveillance and response for condition for receiving an award under The following additional infectious diseases and understanding this program, include in the budget, a requirements are applicable to this of the objectives of this cooperative separate line-item accounting of non- program. For a complete description of agreement program (20 points). Federal contributions (funding, each, see Attachment 1 in the The extent to which the applicant personnel, and other resources) that will application kit. outlines State and local needs in be directly allocated to the proposed epidemiology, laboratory, and/or activities. Identify any non-applicant AR–1 Human Subjects Requirements information systems capacity for public sources of these contributions. AR–2 Requirements for Inclusion of health surveillance and response for c. If requesting funds for any Women and Racial and Ethnic infectious diseases. contractual activities, provide the Minorities in Research 4. Operational Plan (Note: Provide a following information for each contract: AR–7 Executive Order 12372 Review detailed description of first year (1) Name of proposed contractor, (2) AR–10 Smoke-Free Workplace activities only and briefly describe breakdown and justification for Requirements future year activities) (45 points). Extent estimated costs, (3) description and to which the proposed plan: scope of activities to be performed by AR–11 Healthy People 2010 a. Outlines activities that clearly contractor, (4) period of performance, AR–12 Lobbying Restrictions address the applicant’s identified needs (5) method of contractor selection (e.g., I. Authority and Catalog of Federal in capacity and that are appropriate for sole-source or competitive solicitation), Domestic Assistance Number any specific diseases, conditions, and/or and (6) method of accountability. national priority program areas 7. Human Subjects: (Not Scored) This program is authorized under the addressed by the applicant. If any research involving human Public Health Service Act Sections b. Describes steps to be taken to subjects is proposed, does the 301(a)[42 U.S.C. 241(a)] and facilitate and strengthen collaboration application adequately address the 317(k)(2)[42 U.S.C. 247b(k)(2)], as between epidemiology and laboratory requirements of Title 45 CFR part 46 for amended. The Catalog of Federal practice. the protection of human subjects? Domestic Assistance number is 93.283. VerDate 11 J. Where to Obtain Additional (2) the accuracy of the estimated DEPARTMENT OF HEALTH AND Information burden; (3) ways to enhance the quality, HUMAN SERVICES This and other CDC announcements utility, and clarity of the information to National Institutes of Health can be found on the CDC home page be collected; and (4) the use of automated collection techniques or Internet address— VerDate 11 Estimated Estimated total Estimated number of Average annual burden Type of respondents number of responses per burden hours hours respondents respondent per response requested Survey of Participant ...... 200 1 0.5 100 Total ...... 200 ...... 100 Request for Comment: The NIDCD Minority and Disability DEPARTMENT OF HEALTH AND Written comments and/or suggestions Supplement Program was designed to HUMAN SERVICES are invited from the public and affected encourage individuals underrepresented agencies on one or more of the following in biomedical and behavioral research National Institutes of Health points: (1) Whether the proposed in human communication to participate Consensus Development Conference collection of information is necessary in that research. The individuals for fulfillment of the Minority and on Diagnosis and Management of participate on currently funded NIDCD Dental Caries Throughout Life Disability Supplement Grants Program, grants and receive mentoring from including whether the information will NIDCD Principal Investigators. Notice is hereby given of the National be useful; (2) the accuracy of the Institutes of Health (NIH) Consensus estimate of the burden of the proposed Anecdotal feedback indicates that program participants and mentors find Development Conference on ‘‘Diagnosis data collection, including the validity of and Management of Dental Caries the program provides interesting the methodology; (3) ways to enhance Throughout Life,’’ which will be held opportunities and encourages the quality, utility, and clarity of the March 26–28, 2001, in the NIH’s individuals to pursue careers in a data collection; and (4) ways to Natcher Conference Center, 9000 minimize the burden of the collection of variety of health fields. However, there Rockville Pike, Bethesda, Maryland, information on the respondents, is little systematic evidence evaluating 20892. The conference begins at 8 am on including appropriate use of automated the level of the Program’s success or March 26 and 27, and at 9 am on March collection techniques and information failure in accomplishing these goals. 28 and is open to the public. technology. The proposed survey will attempt to The purpose of the conference is to assess how individuals’ participation in FOR FURTHER INFORMATION CONTACT: To examine the current state of dental request more information on the the Supplement Program has influenced caries detection, management, and proposed survey and intent to collect career and educational choices. This prevention so that health care providers data, or to obtain a copy of the design information will provide support for and the general public can make of the collection, contact Judith A. NIDCD’s continued participation in the informed decisions about this important Cooper, Ph.D., Chief, Scientific Program. public health issue. Programs Branch, NIDCD, NIH, 6120 One survey has been proposed to During the first day-and-a-half of the conference, experts will present the Executive Blvd., EPS 400–C, MSC 7180, collect information on the current status latest research findings on dental caries Bethesda, MD 20892, or call non toll- of individuals previously supported by to an independent, non-Federal free number (301) 496–5061, or E-mail an NIDCD Supplement. This survey will consensus development panel. After your request, including your address to: obtain the current contact information _ weighing all of the scientific evidence, judith [email protected] of the participants and assess the Comments Due Date: the panel will draft a statement that will individuals’ educational and career address the following key questions: Comments regarding this information achievements, their goals for future • What are the best methods for collection are best assured of having education, and current specific field(s) detecting early and advanced dental their full effect if received on or before of study/employment. caries [validity and feasibility of March 27, 2001. The survey will be administered via a traditional methods; validity and SUPPLEMENTARY INFORMATION: Under the telephone interview that should take feasibility of emerging methods]? PRA (44 U.S.C. 3501–3520), Federal • approximately 30 minutes to complete. What are the best indicators for an agencies must obtain approval from the Respondents who cannot schedule 30 increased risk of dental caries? Office of Management and Budget • What are the best methods available (OMB) for each collection of minutes of time or who find telephone conversations difficult will be given the for the primary prevention of dental information they conduct or sponsor. caries initiation throughout life? opportunity to respond by alternate ‘‘Collection of information’’ is defined • What are the best treatments in 44 U.S.C. 3502(3) and 4 CFR means such as mail, fax, and e-mail. All available for reversing or arresting the 1320.3(c) and includes agency requests participants from the inception of the progression of early dental caries? or requirements that the public submit program will be included in this survey • How should clinical decisions reports, keep records, or provide process. It is anticipated that the total regarding prevention and/or treatment information to a third party. Section number of participants will not exceed be affected by detection methods and 3506(c)(2)(A) of the PRA requires 200. risk assessment? • federal agencies to provide a 60-day Dated: January 17, 2001. What are promising new research notice in the Federal Register David Kerr, directions for the prevention, diagnosis, concerning proposed collections of and treatment of dental carries? information before submitting the Executive Officer, NIDCD. On the final day of the conference, the collection to OMB for approval. To [FR Doc. 01–2328 Filed 1–25–01; 8:45 am] panel’s draft statement will be read in comply with this requirement, NIDCD is BILLING CODE 4140–01–M public, at which time members of the publishing notice of the proposed public are invited to offer comments on collection of information listed below. the draft. VerDate 11 The primary sponsors of this meeting 6701 Rockledge Drive, Room 7196, Bethesda, DEPARTMENT OF HEALTH AND are the National Institute of Dental and MD 20892, 301–435–0291. HUMAN SERVICES Craniofacial Research and the NIH office (Catalogue of Federal Domestic Assistance of Medical Applications of Research. Program Nos. 93.233, National Center for National Institutes of Health Cosponsors include the National Sleep Disorders Research; 93.837, Heart and Institute on Aging and the U.S. Food Vascular Diseases Research; 93.838, Lung National Institute of Nursing Research; and Drug Administration. Diseases Research; 93.839, Blood Diseases Notice of Closed Meeting This is the 115th Consensus and Resources Research, National Institutes Pursuant to section 10(d) of the Development Conference held by the of Health, HHS) Federal Advisory Committee Act, as NIH in the 24-year history of the Dated: January 17, 2001. amended (5 U.S.C. Appendix 2), notice Consensus Development Program. LaVerne Y. Stringfield, is hereby given of the following Advance information about the meeting. conference and conference registration Director, Office of Federal Advisory The meeting will be closed to the Committee Policy. materials may be obtained from public in accordance with the Prospect Associates of Silver Spring, [FR Doc. 01–2339 Filed 1–25–01; 8:45 am] provisions set forth in sections Maryland by calling (301) 592–3320 or BILLING CODE 4140–01–M 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., by email to as amended. The grant applications and [email protected]. the discussions could disclose Prospect Associates’ address is 10720 DEPARTMENT OF HEALTH AND confidential trade secrets or commercial Columbia Pike, Suite 500, Silver Spring, HUMAN SERVICES property such as patentable material, Maryland 20901–4437. A conference and personal information concerning National Institutes of Health agenda and registration information is individuals associated with the grant also available on the NIH Consensus National Institute of Nursing Research; applications, the disclosure of which Program Web site at http:// Notice of Closed Meeting constitute a clearly unwarranted consensus.nih.gov. invasion of personal privacy. Dated: January 13, 2001. Pursuant to section 10(d) of the Name of Committee: National Institute of Yvonne T. Maddox, Federal Advisory Committee Act, as Nursing Research Special Emphasis Panel. Date: February 22–23, 2001. Acting Deputy Director, NIH. amended (5 U.S.C. Appendix 2), notice Time: 8 a.m. to 5 p.m. [FR Doc. 01–2327 Filed 1–25–01; 8:45 am] is hereby given of the following Agenda: To review and evaluate grant BILLING CODE 4140–01–M meeting. applications. The meeting will be closed to the Place: Doubletree Hotel, 1750 Rockville public in accordance with the Pike, Rockville, MD 20852. DEPARTMENT OF HEALTH AND provisions set forth in sections Contact Person: Mary J. Stephens-Frazier, HUMAN SERVICES PhD, Scientific Review Administrator, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., National Institute of Nursing Research, National Institutes of Health as amended. The grant applications and National Institutes of Health, Natcher the discussions could disclose Building, Room 3AN32, Bethesda, MD 20892, National Heart, Lung, and Blood confidential trade secrets or commercial (301) 594–5971. Institute; Notice of Closed Meeting property such as patentable material, (Catalogue of Federal Domestic Assistance and personal information concerning Program Nos. 93.361, Nursing Research, Pursuant to section 10(d) of the individuals associated with the grant National Institutes of Health, HHS) Federal Advisory Committee Act, as applications, the disclosure of which Dated: January 18, 2001. amended (5 U.S.C. Appendix 2), notice would constitute a clearly unwarranted LaVerne Y. Stringfield, is hereby given of the following invasion of personal privacy. Director, Office of Federal Advisory meeting. Committee Policy. Name of Committee: National Institute of The meeting will be closed to the Nursing Research Initial Review Group. [FR Doc. 01–2330 Filed 1–25–01; 8:45 am] public in accordance with the Date: February 15–16, 2001. BILLING CODE 4140–01–M provisions set forth in sections Time: 8 a.m. to 5 p.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Agenda: To review and evaluate grant as amended. The grant applications and applications. DEPARTMENT OF HEALTH AND the discussions could disclose Place: Holiday Inn, 5520 Wisconsin Ave, HUMAN SERVICES confidential trade secrets or commercial Chase Room, Chevy Chase, MD 20815. property such as patentable material, Contact Person: Mary J. Stephens-Frazier, National Institutes of Health and personal information concerning PhD, Scientific Review Administrator, National Institute of Arthritis and individuals associated with the grant National Institute of Nursing Research, Musculoskeletal and Skin Disease; applications, the disclosure of which National Institutes of Health, Natcher Notice of Meeting would constitute a clearly unwarranted Building, Room 3AN32, 45 Center Drive, invasion of personal privacy. Bethesda, MD 20892, (301) 594–5971. Pursuant to section 10(d) of the Name of Committee: National Heart, Lung, (Catalogue of Federal Domestic Assistance Federal Advisory Committee Act, as and Blood Institute Special Emphasis Panel. Program Nos. 93.361, Nursing Research, amended (5 U.S.C. Appendix 2), notice Date: February 15–16, 2001. National Institutes of Health, HHS) is hereby given of a meeting of the Time: 7 p.m. to 5 p.m. National Arthritis and Musculoskeletal Agenda: To review and evaluate grant Dated: January 18, 2001. and Skin Diseases Advisory Council. applications. LaVerne Y. Stringfield, Place: Holiday Inn—Chevy Chase, 5520 The meeting will be open to the Director, Office of Federal Advisory Wisconsin Avenue, Bethesda, MD 20815. public as indicated below, with Committee Policy. Contact Person: Roy L White, PhD, attendance limited to space available. Scientific Review Administrator, Review [FR Doc. 01–2329 Filed 1–25–01; 8:45 am] Individuals who plan to attend and Branch, NIH, NHLBI, Rockledge Building II, BILLING CODE 4140–01–M need special assistance, such as sign VerDate 11 language interpretation or other and personal information concerning Contact Person: Linda K. Bass, PhD, reasonable accommodations, should individuals associated with the grant Scientific Review Administrator, NIEHS, PO notify the Contact Person listed below applications, the disclosure of which Box 12233 EC–30, Research Triangle Park NC in advance of the meeting. would constitute a clearly unwarranted 27709, (919) 541–1307. The meeting will be closed to the invasion of person privacy. Name of Committee: National Institute of public in accordance with the Environmental Health Sciences Special Name of Committee: National Institute of Emphasis Panel Advanced Research provisions set forth in sections Arthritis and Musculoskeletal and Skin Cooperation in Environmental Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Diseases Special Emphasis Panel. Sciences (ARCH), RFA ES–00–006. as amended. The grant applications and Date: February 20, 2001. Date: March 14–16, 2001. the discussions could disclose Time: 8:30 a.m. to 5 p.m. Time: 7 p.m. to 3 p.m. confidential trade secrets or commercial Agenda: To review and evaluate grant Agenda: To review and evaluate grant property such as patentable material, applications. applications. and personal information concerning Place: Marriott Hotel, 5151 Pooks Hill Place: Hawthorn Suites Hotel, 300 individuals associated with the grant Road, Bethesda, MD 20814. Meredith Drive, Durham, NC 27713. Contact Person: Aftab A. Ansari, PhD, Contact Person: J. Patrick Mastin, PhD, applications, the disclosure of which Scientific Review Administrator, National Scientific Review Administrator, Scientific would constitute a clearly unwarranted Institutes of Health, NIAMS, Natcher Review Branch/DERT, NIEHS, P.O. Box invasion of personal privacy. Building, 45 Center Drive, Room 5AS25N, 12233 MD EC–30, Research Triangle Park, Name of Committee: National Arthritis and Bethesda, MD 20892, 301–594–4952. NC 27709 (919) 541–1446. Musculoskeletal and Skin Diseases Advisory (Catalogue of Federal Domestic Assistance Name of Committee: National Institute of Council. Program Nos. 93.846, Arthritis, Environmental Health Sciences Special Date: February 15, 2001. Musculoskeletal and Skin Diseases Research, Emphasis Panel Research Scientist Open: 8:30 a.m. to 2 p.m. National Institutes of Health, HHS) Development Awards (KO2s). Agenda: The meeting will be open to the Date: April 11, 2001. Dated: January 18, 2001. public to discuss administrative details Time: 1 p.m. to 2 p.m. relating to Council business and special LaVerne Y. Stringfield, Agenda: To review and evaluate grant reports. Director, Office of Federal Advisory applications. Place: 31 Center Drive, Bldg., 31; Committee Policy. Place: NIEHS—East Campus, Building Conference Room 6, Bethesda, MD 20892. [FR Doc. 01–2332 Filed 1–25–01; 8:45 am] 4401, Conference Room 122, 79 Alexander Closed: 2 p.m. to 5 p.m. Drive, Research Triangle Park, NC 27709 BILLING CODE 4140–01–M Agenda: To review and evaluate grant (Telephone Conference Call). applications. Contact Person: Linda K. Bass, PhD, Place: 31 Center Drive, Bldg., 31; Scientific Review Administrator, NIEHS, PO Conference Room 6, Bethesda, MD 20892. DEPARTMENT OF HEALTH AND Box 12233 EC–30, Research Triangle Park, Contact Person: Steven J. Hausman, PhD, HUMAN SERVICES NC 27709 (919) 541–1307. Deputy Director, NIAMS/NIH, Bldg. 31, National Institutes of Health Name of Committee: National Institute of Room 4C–32, 31 Center Dr, MSC 2350, Environmental Health Sciences Special Bethesda, MD 20892–2350. Emphasis Panel Mentored Quantitative National Institute of Environmental Research Career Development Awards (Catalogue of Federal Domestic Assistance Health Sciences; Notice of Closed Program Nos. 93.846, Arthritis, (K25s). Musculoskeletal and Skin Diseases Research, Meetings Date: April 11, 2001. National Institutes of Health, HHS) Time: 2 p.m. to 3 p.m. Dated: January 18, 2001. Pursuant to section 10(d) of the Agenda: To review and evaluate grant Federal Advisory Committee Act, as applications. LaVerne Y. Stringfield, amended (5 U.S.C. Appendix 2), notice Place: NIEHS—East Campus, Building Director, Office of Federal Advisory is hereby given of the following 4401, Conference Room 122, 79 Alexander Committee Policy. meetings. Drive, Research Triangle Park, NC 27709 [FR Doc. 01–2331 Filed 1–25–01; 8:45 am] (Telephone Conference Call). BILLING CODE 4140–01–M The meetings will be closed to the Contact Person: Linda K. Bass, PhD, public in accordance with the Scientific Review Administrator, NIEHS, PO provisions set forth in sections Box 12233 EC–30, Research Triangle Park, DEPARTMENT OF HEALTH AND 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., NC 27709 (919) 541–1307. HUMAN SERVICES as amended. The grant applications and Name of Committee: National Institute of the discussions could disclose Environmental Health Sciences Special National Institutes of Health confidential trade secrets or commercial Emphasis Panel Mentored Patient-Oriented property such as patentable material, Research Career Development Awards National Institute of Arthritis and (K23s). and personal information concerning Date: April 12, 2001. Musculoskeletal and Skin Diseases; individuals associated with the grant Notice of Closed Meeting Time: 1 p.m. to 3 p.m. applications, the disclosure of which Agenda: To review and evaluate grant Pursuant to section 10(d) of the would constitute a clearly unwarranted applications. Federal Advisory Committee Act, as invasion of personal privacy. Place: NIEHS, 79 T. W. Alexander Drive, Building 4401, Conference Room 3446, amended (5 U.S.C. Appendix 2), notice Name of Committee: National Institute of Research Triangle Park, NC 27709 Environmental Health Sciences Special is hereby given of the following (Telephone Conference Call). Emphasis Panel Centers for Children’s meeting. Contact Person: Linda K. Bass, PhD, Environmental Health and Disease The meeting will be closed to the Scientific Review Administrator, NIEHS, PO Prevention Research (RFA ES–00–008). public in accordance with the Box 12233 EC–30, Research Triangle Park, Date: March 11–14, 2001. provisions set forth in sections NC 27709, (919) 541–1307. Time: 7 p.m. to 2 p.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance as amended. The grant applications and applications. Program Nos. 93.113, Biological Response to the discussions could disclose Place: NC Biotechnology Center, 15 T. W. Environmental Health Hazards; 93.114, confidential trade secrets or commercial Alexander Drive, Post Office Box 13547, Applied Toxicological Research and Testing; property such as patentable material, Research Triangle Park, NC 27709. 93.115, Biometry and Risk Estimation— VerDate 11 Health Risks from Environmental Exposures; Dated: January 17, 2001. DEPARTMENT OF HEALTH AND 93.142, NIEHS Hazardous Waste Worker LaVerne Y. Stringfield, HUMAN SERVICES Health and Safety Training; 93.143, NIEHS Director, Office of Federal Advisory Superfund Hazardous Substances—Basic National Institutes of Health Research and Education; 93.894, Resources Committee Policy. and Manpower Development in the [FR Doc. 01–2335 Filed 1–25–01; 8:45 am] National Institute on Drug Abuse; Environmental Health Sciences, National BILLING CODE 4140–01–M Notice of Closed Meetings Institutes of Health, HHS) Dated: January 18, 2001. Pursuant to section 10(d) of the LaVerne Y. Stringfield, DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as Director, Office of Federal Advisory HUMAN SERVICES amended (5 U.S.C. Appendix 2), notice Committee Policy. is hereby given of the following [FR Doc. 01–2333 Filed 1–25–01; 8:45 am] National Institutes of Health meetings. The meetings will be closed to the BILLING CODE 4140–01–M National Institute of Neurological public in accordance with the Disorders and Stroke; Notice of Closed provisions set forth in sections DEPARTMENT OF HEALTH AND Meeting 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., HUMAN SERVICES as amended. The grant applications and Pursuant to section 10(d) of the the discussions could disclose National Institutes of Health Federal Advisory Committee Act, as confidential trade secrets or commercial amended (5 U.S.C. Appendix 2), notice property such as patentable material, National Institute on Drug Abuse; is hereby given of the following and personal information concerning Notice of Closed Meeting meeting. individuals associated with the grant applications, the disclosure of which Pursuant to section 10(d) of the The meeting will be closed to the Federal Advisory Committee Act, as would constitute a clearly unwarranted public in accordance with the invasion of personal privacy. amended (5 U.S.C. Appendix 2), notice provisions set forth in sections is hereby given of the following 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Institute on Drug Abuse Special Emphasis Panel, Centers meeting. as amended. The contract proposals and The meeting will be closed to the Review Committee. the discussions could disclose public in accordance with the Date: February 20, 2001. confidential trade secrets or commercial provisions set forth in sections Time: 8:30 am to 5 p.m. Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., property such as patentable material, and personal information concerning applications. as amended. The contract proposals and Place: Ritz-Carlton Hotel at Pentagon City, the discussions could disclose individuals associated with the contract proposals, the disclosure of which 1250 South Hayes Street, Arlington, VA confidential trade secrets or commercial 22202. property such as patentable material, would constitute a clearly unwarranted Contact Person: Rita Liu, PhD, Health and personal information concerning invasion of personal privacy. Scientist Administrator, Office of Extramural individuals associated with the contract Name of Committee: National Institute of Affairs, National Institute on Drug Abuse, National Institutes of Health, DHHS, 6001 proposals, the disclosure of which Neurological Disorders and Stroke Special Executive Boulevard, Room 3158, MSC 9547, would constitute a clearly unwarranted Emphasis Panel. Bethesda, MD 20892–9547, (301) 443–2620. invasion of personal privacy. Date: February 2, 2001. Name of Committee: National Institute on Time: 1 p.m. to 4 p.m. Name of Committee: National Institute on Drug Abuse Initial Review Group, Health Drug Abuse Special Emphasis Panel SBIR: Agenda: To review and evaluate contract Services Research Subcommittee. ‘‘High Performance Chemistry—Directed proposals. Date: February 28–March 1, 2001. Analog Synthesis’’. Place: Neuroscience Center, National Time: 9 a.m. to 5 p.m. Date: February 1, 2001. Institutes of Health, 6001 Executive Blvd., Agenda: To review and evaluate grant Time: 1:30 p.m. to 3:30 p.m. Bethesda, MD 20892 (Telephone Conference applications. Agenda: To review and evaluate contract Call). Place: Embassy Suites & Chevy Chase proposals. Contact Person: Phillip F. Wiethorn, Pavilion, 4300 Military Road, NW., Place: Neuroscience Center, National Scientific Review Administrator, Scientific Wisconsin at Western Avenue, Washington, Institutes of Health, 6001 Executive Blvd., Review Branch, NINDS/NIH/DHHS, DC 20015. Bethesda, MD 20892, (Telephone Conference Neuroscience Center, 6001 Executive Blvd, Contact Person: Marina L. Volkov, PhD, Call). Health Scientist Administrator, Office of Suite 3208, MSC 9529, Bethesda, MD 20892– Contact Person: Eric Zatman, Contract Extramural Affairs, National Institute on Review Specialist, Office of Extramural 9529, 301–496–9223. Drug Abuse, National Institutes of Health, Affairs, National Institute on Drug Abuse, (Catalogue of Federal Domestic Assistance DHHS, 6001 Executive Boulevard, Room National Institutes of Health, DHHS, 6001 Program Nos. 93.853, Clinical Research 3158, MSC 9547, Bethesda, MD 20892–9547, Executive Boulevard, Room 3158, MSC 9547, Related to Neurological Disorders; 93.854, (301) 435–1433. Bethesda, MD 20892–9547, (301) 435–1438. Biological Basis Research in the Name of Committee: National Institute on This notice is being published less than 15 Drug Abuse Initial Review Group, Treatment days prior to the meeting due to the timing Neurosciences, National Institutes of Health, HHS) Research Subcommittee. limitations imposed by the review and Date: February 28, 2001. funding cycle. Dated: January 17, 2001. Time: 10 a.m. to 6 p.m. (Catalogue of Federal Domestic Assistance LaVerne Y. Stringfield, Agenda: To review and evaluate grant Program Nos. 93.277, Drug Abuse Scientist Director, Office of Federal Advisory applications. Development Award for Clinicians, Scientist Committee Policy. Place: Embassy Suites at the Chevy Chase Development Awards, and Research Scientist Pavilion, 4300 Military Road, NW., [FR Doc. 01–2336 Filed 1–25–01; 8:45 am] Awards; 93.278, Drug Abuse National Washington, DC 20015. Research Service Awards for Research BILLING CODE 4140–01–M Contact Person: Kesinee Nimit, Md, Health Training; 93.279, Drug Abuse Research Scientist Administrator, Office of Extramural Programs, National Institutes of Health, HHS) Affairs, National Institute on Drug Abuse, VerDate 11 National Institutes of Health, DHHS, 6001 DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND Executive Boulevard, Room 3158, MSC 9547, HUMAN SERVICES HUMAN SERVICES Bethesda, MD 20892–9547, (301) 435–1432. Name of Committee: National Institute on National Institutes of Health National Institutes of Health Drug Abuse Special Emphasis Panel, Treatment Research. National Institute of Dental & Center for Scientific Review; Notice of Date: February 28, 2001. Craniofacial Research; Notice of Closed Meetings Meeting Time: 12:30 p.m. to 1:30 p.m. Pursuant to section 10(d) of the Agenda: To review and evaluate grant Pursuant to section 10(d) of the Federal Advisory Committee Act, as applications. Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice Place: Embassy Suites at the Chevy Chase amended (5 U.S.C. appendix 2), notice is hereby given of the following Pavilion, 4300 Military Road, N.W., is hereby given of a meeting of the meetings. Wisconsin Ave. and Western Ave., National Advisory Dental and The meetings will be closed to the Washington, DC 20015. Craniofacial Research Council. public in accordance with the Contact Person: Mark R. Green, PhD, Chief, The meeting will be open to the provisions set forth in sections CEASRB, Office of Extramural Affairs, public as indicated below, with 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., National Institute on Drug Abuse, National attendance limited to space available. as amended. The grant applications and Institutes of Health, DHHS, Suite 3158, 6001 Individuals who plan to attend and the discussions could disclose Executive Boulevard, Bethesda, MD 20892– need special assistance, such as sign confidential trade secrets or commercial 9547, (301) 435–1431. language interpretation or other property such as patentable material, Name of Committee: National Institute on reasonable accommodations, should and personal information concerning Drug Abuse Initial Review Group, Training notify the Contact Person listed below individuals associated with the grant and Career Development Subcommittee. in advance of the meting. applications, the disclosure of which Date: March 6–8, 2001. The meeting will be closed to the would constitute a clearly unwarranted Time: 9 a.m. to 6 p.m. public in accordance with the invasion of personal privacy. Agenda: To review and evaluate grant provisions set forth in sections applications. Name of Committee: Center for Scientific 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Review Special Emphasis Panel. Place: Arlington Hyatt, 1325 Wilson as amended. The grant applications Date: January 21, 2001. Boulevard, Arlington, VA 22209. and/or contract proposals and the Time: 1:30 p.m. to 3 p.m. Contact Person: Mark Swieter, PhD, Health discussions could disclose confidential Agenda: To review and evaluate grant Scientist Administrator, Office of Extramural trade secrets or commercial property applications. Affairs, National Institute on Drug Abuse, such as patentable material, and Place: Fairmont Hotel, San Jose, 170 South National Institutes of Health, DHHS, 6001 personal information concerning Market Street, San Jose, CA 95113. Executive Boulevard, Room 3158, MSC 9547, individuals associated with the grant Contact Person: Eugene Vigil, PhD, Bethesda, MD 20892–9547, (301) 435–1389. Scientific Review Administrator, Center for applications and/or contract proposals, Scientific Review, National Institutes of Name of Committee: National Institute on the disclosure of which would Health, 6701 Rockledge Drive, Room 5144, Drug Abuse Initial Review Group, constitute a clearly unwarranted MSC 7840, Bethesda, MD 20892, (301) 435– Medication Development Research invasion of personal privacy. 1025. Subcommittee. Name of Committee: National Advisory This notice is being published less than 15 Date: March 7, 2001. Dental and Craniofacial Research Council. days prior to the meeting due to the timing Time: 9 a.m. to 5 p.m. Date: January 22, 2001. limitations imposed by the review and Agenda: To review and evaluate grant Open: 8:30 a.m. to 12:15 funding cycle. applications. Agenda: Director’s Report, Scientific Name of Committee: Center for Scientific Place: Chevy Chase Holiday Inn, 5520 Presentations. Review Special Emphasis Panel. Wisconsin Avenue, Chevy Chase, MD 20815. Place: 45 Center Drive Natcher Building, Date: January 23, 2001. Contact Person: Khursheed Asghar, PhD, Conference Room E1/2, Bethesda, MD 20892. Time: 10 a.m. to 12 p.m. Chief, Basic Sciences Review Branch, Office Closed: 12:30 p.m. to 5 p.m. Agenda: To review and evaluate grant of Extramural Affairs, National Institute on Agenda: To review and evaluate grant applications. applications and/or proposals. Drug Abuse, National Institutes of Health, Place: NIH, Rockledge 2, Bethesda, MD Place: 45 Center Drive, Natcher Building, 20892 (Telephone Conference Call). 6001 Executive Boulevard, Room 3158, MSC Conference Room E1/2, Bethesda, MD 20892. Contact Person: Stephen M. Nigida, PhD, 9547, Bethesda, MD 20892–9547, (301) 443– Contact Person: Dushanka V. Kleinman, Scientific Review Administrator, Center for 2620. DDS, Deputy Director, National Institute of Scientific Review, National Institutes of (Catalogue of Federal Domestic Assistance Dental & Craniofacial Res., National Institutes Health, 6701 Rockledge Drive, Room 4112, Program Nos. 93.277, Drug Abuse Scientist of Health, 9000 Rockville Pike, 31/2C39, MSC 7812, Bethesda, MD 20892, (301) 435– Development Award for Clinicians, Scientist Bethesda, MD 20892, (301) 496–9469. 3565. Development Awards, and Research Scientist This notice is being published less than 15 This notice is being published less than 15 days prior to the meeting due to the timing Awards; 93.278, Drug Abuse National days prior to the meeting due to the timing limitations imposed by the review and Research Service Awards for Research limitations imposed by the review and funding cycle. funding cycle. Training; 93.279, Drug Abuse Research (Catalogue of Federal Domestic Assistance Programs, National Institutes of Health, HHS) Name of Committee: Center for Scientific Program Nos. 93.121, Oral Diseases and Review Special Emphasis Panel. Dated: January 17, 2001. Disorders Research, National Institutes of Date: January 31, 2001. Health, HHS) LaVerne Y. Stringfield, Time: 12 p.m. to 1:30 p.m. Agenda: To review and evaluate grant Director, Office of Federal Advisory Dated: January 17, 2001. LaVerne Y. Stringfield, applications. Committee Policy. Place: NIH, Rockledge 2, Bethesda, MD [FR Doc. 01–2337 Filed 1–25–01; 8:45 am] Director, Office of Federal Advisory 20892 (Telephone Conference Call). Committee Policy. BILLING CODE 4140–01–M Contact Person: Stephen M. Nigida, PhD, [FR Doc. 01–2338 Filed 1–25–01; 8:45 am] Scientific Review Administrator, Center for BILLING CODE 4140–01–M Scientific Review, National Institutes of VerDate 11 Health, 6701 Rockledge Drive, Room 4112, MSC 7850, Bethesda, MD 20892, (301) 435– No. 88–2503–OG (D.D.C.), HUD MSC 7812, Bethesda, MD 20892, (301) 435– 1164. publishes a Notice, on a weekly basis, 3565. This notice is being published less than 15 identifying unutilized, underutilized, This notice is being published less than 15 days prior to the meeting due to the timing excess and surplus Federal buildings days prior to the meeting due to the timing limitations imposed by the review and limitations imposed by the review and funding cycle. and real property that HUD has reviewed for suitability for use to assist funding cycle. Name of Committee: Center for Scientific Name of Committee: Cell Development and Review Special Emphasis Panel. the homeless. Today’s Notice is for the Function Integrated Review Group Cell Date: February 6, 2001. purpose of announcing that no Development and Function 2. Time: 1:00 p.m. to 3:00 p.m. additional properties have been Date: February 1–2, 2001. Agenda: To review and evaluate grant determined suitable or unsuitable this Time: 8:30 a.m. to 2 p.m. applications. week. Agenda: To review and evaluate grant Place: NIH, Rockledge 2, Bethesda, MD Dated: January 18, 2001. applications. 20892 (Telephone Conference Call). Place: Holiday Inn Georgetown, 2101 Contact Person: Alexander D. Politis, PhD, John D. Garrity, Wisconsin Avenue, N.W., Washington, DC Scientific Review Administrator, Center for Director, Office of Special Needs Assistance 20007. Scientific Review, National Institutes of Programs. Contact Person: Ramesh K. Nayak, PhD, Health, 6701 Rockledge Drive, Room 4204, [FR Doc. 01–2027 Filed 1–25–01; 8:45 am] Scientific Review Administrator, Center for MSC 7812, Bethesda, MD 20892, (301) 435– BILLING CODE 4210–29–M Scientific Review, National Institutes of 1225, [email protected]. Health, 6701 Rockledge Drive, Room 5146, This notice is being published less than 15 MSC 7840, Bethesda, MD 20892, (301) 435– days prior to the meeting due to the timing 1026. limitations imposed by the review and DEPARTMENT OF THE INTERIOR This notice is being published less than 15 funding cycle. days prior to the meeting due to the timing Bureau of Indian Affairs limitations imposed by the review and (Catalogue of Federal Domestic Assistance funding cycle. Program Nos. 93.306, Comparative Medicine, Notice of Ratification of Decision To 93.306; 93.333, Clinical Research, 93.333, Name of Committee: Center for Scientific Take 90.94 Acres of Land, More or 93.337, 93.393–93.396, 93.837–93.844, Less, Into Trust for the Lower Brule Review Special Emphasis Panel. 93.846–93.878, 93.892, 93.893, National Date: February 4–6, 2001. Institutes of Health, HHS) Sioux Tribe of Indians of South Dakota Time: 7:00 a.m. to 4:00 p.m. Agenda: To review and evaluate grant Dated: January 18, 2001. AGENCY: Bureau of Indian Affairs, applications. LaVerne Y. Stringfield, Interior. Place: University Park Hotel, 20 Sidney Director, Office of Federal Advisory ACTION: Notice of ratification of Street, Cambridge, MA 02139. Committee Policy. decision. Contact Person: Lee Rosen, PhD, Scientific [FR Doc. 01–2334 Filed 1–25–01; 8:45 am] Review Administrator, Center for Scientific BILLING CODE 4140–01–M SUMMARY: This publication provides Review, National Institutes of Health, 6701 notice that the decision of the Rockledge Drive, Room 5126, MSC 7854, Department of the Interior published on Bethesda, MD 20892, (301) 435–1171. This notice is being published less than 15 DEPARTMENT OF HOUSING AND May 18, 2000, in the Federal Register, days prior to the meeting due to the timing URBAN DEVELOPMENT 65 FR 31594, to acquire 90.94 acres of limitations imposed by the review and land, more or less, in trust for the Lower [Docket No. FR–4644–N–04] funding cycle. Brule Sioux Tribe of Indians of South Dakota is hereby ratified. This Name of Committee: Surgery, Radiology Federal Property Suitable as Facilities ratification incorporates the entire and Bioengineering Integrated Review Group, To Assist the Homeless Surgery and Bioengineering Study Section. record of decision supporting the Date: February 5–6, 2001. AGENCY: Office of the Assistant Department’s April 6, 2000, decision to Time: 8:00 a.m. to 4:00 p.m. Secretary for Community Planning and acquire land in trust for the Lower Brule Agenda: To review and evaluate grant Development, HUD. Sioux Tribe of Indians of South Dakota applications. and incorporates the Environmental Place: Hyatt Regency Hotel, One Bethesda ACTION: Notice. Metro Center, Bethesda, MD 20814. Assessment (EA) and Finding of No Contact Person: Teresa Nesbitt, DVM, PhD, SUMMARY: This Notice identifies Significant Impact (FONSI) issued on Scientific Review Administrator, Center for unutilized, underutilized, excess, and December 14, 2000, into the Scientific Review, National Institutes of surplus Federal property reviewed by administrative record. This notice of Health, 6701 Rockledge Drive, Room 5118, HUD for suitability for possible use to ratification will be considered final no MSC 7854, Bethesda, MD 20892, (301) 435– assist the homeless. sooner than thirty days after this notice 1172, [email protected]. EFFECTIVE DATE: January 26, 2001. is published. This notice is published in This notice is being published less than 15 FOR FURTHER INFORMATION CONTACT: the exercise of authority delegated by days prior to the meeting due to the timing the Secretary of the Interior to the limitations imposed by the review and Clifford Taffet, Department of Housing funding cycle. and Urban Development, Room 7262, Assistant Secretary—Indian Affairs by 209 DM 8.1 and pursuant to 25 CFR Name of Committee: Center for Scientific 451 Seventh Street SW., Washington, Review Special Emphasis Panel. DC 20410; telephone (202) 708–1234; 151.12(b), 61 FR 18082, April 24, 1996. Date: February 5–6, 2001. TTY number for the hearing- and FOR FURTHER INFORMATION CONTACT: Time: 8:30 a.m. to 6:00 p.m. speech-impaired (202) 708–2565, (these Terrance L. Virden, Bureau of Indian Agenda: To review and evaluate grant telephone numbers are not toll-free), or Affairs, Director, Office of Trust applications. call the toll-free Title V information line Responsibilities, MS–4513–MIB, 1849 C Place: George Hotel, 15 E Street, N.W., at 1–800–927–7588. Street, NW, Washington, DC 20240; Washington, DC 20001. telephone (202) 208–5831. Contact Person: Mary Custer, PhD, SUPPLEMENTARY INFORMATION: In Scientific Review Administrator, Center for accordance with the December 12, 1988 SUPPLEMENTARY INFORMATION: On April Scientific Review, National Institutes of court order in National Coalition for the 6, 2000, the Assistant Secretary—Indian Health, 6701 Rockledge Drive, Room 5102, Homeless v. Veterans Administration, Affairs made a final determination that VerDate 11 the United States will accept 90.94 acres duly adopted by the Big Sandy substances including all dilutions of of land, more or less, in trust for the Rancheria Tribal Council on August 30, this substance. Lower Brule Sioux Tribe of Indians of 2000. The Big Sandy Rancheria, in Alcoholic Beverage is synonymous South Dakota. It was determined that furtherance of its economic and social with the term ‘‘liquor’’ as defined in this the acceptance of the 90.94 acres in goals, has taken positive steps to Chapter. trust, pursuant to 25 U.S.C. 465, would regulate retail sales of alcohol and use Bar means any establishment with be in the best interest of the Lower Brule revenues to combat alcohol abuse and special space and accommodations for Sioux Tribe of Indians of South Dakota. its debilitating effects among sale by the glass, can or bottle and for On December 14, 2000, the Bureau individuals and family members within consumption on the premises of liquor, issued an EA and FONSI for the trust the Big Sandy Rancheria. as herein defined. acquisition of the Lower Brule Sioux This notice is being published in Beer means any beverage obtained by Tribe and the construction of the Native accordance with the authority delegated the alcoholic fermentation of an American Scenic Byway. Based on the by the Secretary of the Interior to the infusion or decoction of pure hops, or additional environmental information Assistant Secretary—Indian Affairs by pure extract of hops and pure barley contained in the EA, the Department 209 Departmental Manual 8. malt or other wholesome grain of cereal ratifies its April 6, 2000, decision to take I certify that by Resolution No. 00–14, in pure water containing not more than 90.94 acres of land in trust for the Lower the Big Sandy Rancheria Liquor 4 percent of alcohol by volume. For the Brule Sioux Tribe of Indians of South Ordinance was duly adopted by the Big purposes of this title, any such beverage, Dakota. Sandy Tribal Council on August 30, including ale, stout, and porter, 2000. containing more than 4 percent of Dated: January 18, 2001. Dated: January 19, 2001. alcohol by weight shall be referred to as Michael J. Anderson, Michael J. Anderson, ‘‘strong beer.’’ Acting Assistant Secretary—Indian Affairs. General Membership means the Acting Assistant Secretary—Indian Affairs. [FR Doc. 01–2383 Filed 1–25–01; 8:45 am] general membership of the Big Sandy BILLING CODE 4310–02–P The Big Sandy Rancheria Liquor Rancheria, which is composed of the Ordinance, Resolution No. 00–14, reads membership of the Tribe as a whole. as follows: Liquor includes the four varieties of DEPARTMENT OF THE INTERIOR Big Sandy Rancheria Liquor Ordinance liquor herein defined (alcohol, spirits, wine and beer), and all fermented Bureau of Indian Affairs Chapter I—Introduction spirituous, vinous, or malt liquor or combination thereof, and mixed liquor, Big Sandy Rancheria Liquor Ordinance Section 101. Title. This ordinance shall be known as the Liquor Ordinance or otherwise intoxicating; and every AGENCY: Bureau of Indian Affairs, of the Big Sandy Rancheria of Mono liquor or solid or semisolid or other Interior. Indians of California. substance, patented or not, containing ACTION: Notice. Section 102. Authority. This alcohol, spirits, wine or beer, and all ordinance is enacted pursuant to the Act drinks or drinkable liquids and all SUMMARY: This notice publishes the Big of August 15, 1953 (Public Law 83–277, preparations or mixtures capable of Sandy Rancheria Liquor Ordinance. The 67 Stat. 588, 18 U.S.C. 1161) and the human consumption and any liquid, Ordinance regulates the control of, the Constitution of the Big Sandy Rancheria semisolid, solid, or other substances, possession of, and the sale of liquor on of Mono Indians of California (Big which contain more than 1 percent of the Big Sandy Rancheria trust lands, Sandy Rancheria or Rancheria). alcohol by weight shall be conclusively and is in conformity with the laws of Section 103. Purpose. The purpose of deemed to be intoxicating. the State of California, where applicable this ordinance is to regulate and control Liquor Store means any store at which and necessary. Although the Ordinance the possession and sale of liquor on liquor is sold and, for the purposes of was adopted on August 30, 2000, it does lands under the control of the Big Sandy this ordinance, includes stores only a not become effective until published in Rancheria. The enactment of a tribal portion of which are devoted to sale of the Federal Register because the failure ordinance governing liquor possession liquor or beer. to comply with the ordinance may and sale on the Rancheria will increase Malt Liquor means beer, strong beer, result in criminal charges. the ability of the tribal government to ale stout, and porter. Package means any container or DATES: This Ordinance is effective on control Rancheria liquor distribution receptacle used for holding liquor. January 26, 2001. and possession, and at the same time will provide an important source of Public Place includes state or county FOR FURTHER INFORMATION CONTACT: revenue for the continued operation and or tribal or federal highways or roads; Kaye Armstrong, Office of Tribal strengthening of the tribal government buildings and grounds used for school Services, 1849 C Street, NW, MS 4631– and the delivery of tribal government purposes; public dance halls and MIB, Washington, D.C. 20240–4001; services. grounds adjacent thereto; soft drink telephone (202) 208–4400. establishment, public buildings, public SUPPLEMENTARY INFORMATION: Pursuant Chapter II—Definitions meeting halls, lobbies, halls and dining to the Act of August 15, 1953, Public Section 201. Definitions. As used in rooms of hotels, restaurants, theater, Law 83–277, 67 Stat. 586, 18 U.S.C. this ordinance, the following words gaming facilities, entertainment centers, 1161, as interpreted by the Supreme shall have the following meanings store garages, and filling stations which Court in Rice v. Rehner, 463 U.S. 713 unless the context clearly requires are open to and/or are generally used by (1983), the Secretary of the Interior shall otherwise. the public and to which the public is certify and publish in the Federal Alcohol means that substance known permitted to have unrestricted access; Register notice of adopted liquor as ethyl alcohol, hydrated oxide of public conveyances of all kinds of ordinances for the purpose of regulating ethyl, or spirit of wine which is character; and all other places of like or liquor transaction in Indian country. commonly produced by the similar nature to which the general The Big Sandy Rancheria Liquor fermentation or distillation of grain, public has unrestricted right of access, Ordinance, Resolution No. 00–14, was starch, molasses, or sugar, or other and which are generally used by the VerDate 11 public. For the purposes of this (c) To issue licenses permitting the Chapter V—Licensing ordinance, ‘‘public place’’ shall also sale or manufacture or distribution of Section 501. Application for Tribal include any establishment other than a liquor on the Rancheria; Liquor License Requirements. No tribal single family home which is designed (d) To hold hearings on violations of license shall be issued under this for or may be used by more than just the this ordinance or for the issuance or ordinance except upon a sworn owner of the establishment. revocation of licenses hereunder; application filed with the Tribal Council (e) To bring suit in the appropriate Rancheria means land held in trust by containing a full and complete showing court to enforce this ordinance as the United States Government for the of the following: necessary; benefit of the Big Sandy Rancheria of (a) Satisfactory proof that the Mono Indians of California (See also (f) To determine and seek damages for violation of this ordinance; applicant is or will be duly licensed by Tribal Land). the State of California. Sale and Sell include exchange, (g) To make such reports as may be (b) Satisfactory proof that the barter, and traffic; and also include the required by the Council; applicant is of good character and selling or supplying or distributing by (h) To collect taxes and fees levied or reputation among the people of the any means whatsoever, of liquor, or of set by the Tribal Council and to keep Rancheria and that the applicant is any liquid known or described as beer accurate records, books, and accounts. Section 302. Limitation on Powers. In financially responsible. or by any name whatsoever commonly (c) The description of the premises in used to describe malt or brewed liquor the exercise of its powers and duties under this ordinance, the Tribal Council which the intoxicating beverages are to or wine by any person to any person. be sold, proof that the applicant is the Spirits mean any beverage, which and its individual members shall not owner of such premises, or lessee of contains alcohol obtained by accept any gratuity, compensation or such premises, for at least the term of distillation, including wines exceeding other thing of value from any liquor the license. 17 percent of alcohol by weight. wholesaler, retailer, or distributor or (d) Agreement by the applicant to Tribal Council means the Tribal from any licensee. accept and abide by all conditions of the Council of the Big Sandy Rancheria of Section 303. Inspection Rights. The tribal license. Mono Indians of California. premises on which liquor is sold or Tribal Land means any land within distributed shall be open for inspection (e) Payment of $250 fee as prescribed the exterior boundaries of the Rancheria by the Tribal Council or its designee at by the Tribal Council. which is held in trust by the United all reasonable times for the purposes of (f) Satisfactory proof that neither the States for the Tribe as a whole, ascertaining whether the rules and applicant nor the applicant’s spouse has including such land leased to other regulations of this ordinance are being ever been convicted of a felony. (g) Satisfactory proof that notice of the parties and lands held in trust under complied with. application has been posted in a lease to Big Sandy Rancheria. Chapter IV—Sales of Liquor Tribe means the Big Sandy Rancheria prominent, noticeable place on the of Mono Indians of California. Section 401. Licenses Required. No premises where intoxicating beverages Trust Account means the account sales of alcoholic beverages shall be are to be sold for at least 30 days prior designated by the Tribal Council for made within the exterior boundaries of to consideration by the Tribal Council deposit of proceeds from the tax from the Rancheria, except at a tribally and has been published at least twice in the sale of alcoholic beverages. licensed or tribally owned business such local newspaper serving the Trust Agent means the Tribal operated on tribal land within the community that may be affected by the Chairperson or a designee of the exterior boundaries of the Rancheria. license the Tribal Chairperson or Chairperson. Section 402. Sales Only on Tribal Secretary may authorize. The notice Wine means any alcoholic beverage Land. All liquor sales within the shall state the date, time and place obtained by fermentation of fruits exterior boundaries of the Rancheria when the application shall be (grapes, berries, apples, etc.) or other shall be on tribal land, including leases considered by the Tribal Council agricultural product containing sugar, to thereon. pursuant to Section 502 of this which any saccharine substances may Section 403. Sales for Cash. All liquor ordinance. have been added before, during or after sales within the Rancheria boundaries Section 502. Hearing on Application fermentation, and containing not more shall be on a cash only basis and no for Tribal Liquor License. All than 17 percent of alcohol by weight, credit shall be extended to any person, applications for a tribal liquor license including sweet wines fortified with organization, or entity, except that this shall be considered by the Tribal wine spirits such as port, sherry, provision does not prevent the use of Council in open session at which the muscatel, and angelica, not exceeding major credit cards such as Visa, applicant, his attorney, and any person 17 percent of alcohol by weight. American Express, etc. protesting the application shall have the Section 404. Sale for Personal right to be present, and to offer sworn Chapter III—Powers of Enforcement Consumption. All sales shall be for the oral or documentary evidence relevant Section 301. Powers. The Tribal personal use and consumption of the to the application. After the hearing, the Council, in furtherance of this purchaser. Resale of any alcoholic Tribal Council shall determine whether ordinance, shall have the following beverage purchased within the exterior to grant or deny the application based powers and duties: boundaries of the Rancheria is on: (a) To publish and enforce the rules prohibited. Any person who is not (1) Whether the requirements of and regulations governing the sale, licensed pursuant to this ordinance who Section 501 have been met; and manufacture, and distribution of purchases an alcoholic beverage within (2) Whether the Tribal Council, in its alcoholic beverages on the Rancheria; the boundaries of the Rancheria and discretion, determines that granting the (b) To employ managers, accountants, sells it, whether in the original license is in the best interests of the security personnel, inspectors, and such container or not, shall be guilty of a Tribe. other persons as shall be reasonably violation of this ordinance and shall be In the event that the applicant is a necessary to allow the Tribal Council to subjected to paying damages to the member of the Tribal Council, or a perform its functions; Tribe as set forth herein. member of the immediate family of a VerDate 11 Tribal Council member, such members the people of the Tribe, and including in a public conveyance shall be guilty shall not vote on the application or special days of observation as of a violation of this ordinance. participate in the hearings as a Tribal designated by the Tribal Council. Section 605. Consumption or Council member. (h) All acts and transactions under Possession of Liquor by Persons Under Section 503. Temporary Permits. The authority of the tribal liquor license 21 Years of Age. No person under the Tribal Council or their designee may shall be in conformity with the laws of age of 21 years shall consume, acquire grant a temporary permit for the sale of the State of California, and shall be in or have in his possession any alcoholic intoxicating beverages for a period not accordance with this ordinance and any beverage. No person shall permit any to exceed 3 days to any person applying tribal license issued pursuant to this other person under the age of 21 to for the same in connection with a tribal ordinance. consume liquor on his premises or any or community activity; Provided, That (i) No person under the age permitted premises under his control except in the conditions prescribed in Section 504 under the laws of the State of California those situations set out in this section. of this ordinance shall be observed by shall be sold, served, delivered, given, Any person violating this section shall the permittee. Each permit issued shall or allowed to consume alcoholic be guilty of a separate violation of this specify the types of intoxicating beverages in the licensed establishment ordinance for each and every drink so beverages to be sold. Further, a fee of and/or area. consumed. $25 will be assessed on temporary (j) There shall be no discrimination in Section 606. Sales of Liquor to permits. the operations under the tribal license Persons Under 21 Years of Age. Any Section 504. Conditions of the Tribal by reason of race, color, or creed. person who shall sell or provide liquor License. Any tribal license issued under Section 505. License Not a Property to any person under the age of 21 years this title shall be subject to such Right. Notwithstanding any other shall be guilty of a violation of this reasonable conditions as the Tribal provision of this ordinance, a tribal ordinance for each sale or drink Council shall fix, including, but not liquor license is a mere permit for a provided. Section 607. Transfer of Identification limited to the following: fixed duration of time. A tribal liquor (a) The license shall be for a term not to Minor. Any person who transfers in license shall not be deemed a property to exceed 1 year. any manner an identification of age to right or vested right of any kind, nor (b) The licensee shall at all times a minor for the purpose of permitting shall the granting of a tribal liquor maintain an orderly, clean and neat such minor to obtain liquor shall be license give rise to a presumption of establishment, both inside and outside guilty of an offense; Provided, That legal entitlement to the granting of such the licensed premises. corroborative testimony of a witness license for a subsequent time period. (c) The State of California shall have other than the minor shall be a Section 506. Assignment or Transfer. jurisdiction over offenses and civil requirement of finding a violation of No tribal license issued under this causes of action committed on the this ordinance. licensed premises to the same extent ordinance shall be assigned or Section 608. Use of False or Altered that it has jurisdiction over offenses and transferred without the written approval Identification. Any person who attempts civil causes of action committed of the Tribal Council expressed by to purchase an alcoholic beverage elsewhere within California, and the formal resolution. through the use of false or altered California criminal laws, and civil laws Chapter VI—Rules, Regulations, and identification, which falsely purports to of general applicability to private Enforcement show the individual to be over the age persons or private property, shall have of 21 years, shall be guilty of violating Section 601. Sales or Possession With the same force and effect on the licensed this ordinance. premises as they have elsewhere in Intent to Sell Without a Permit. Any Section 609. Violations of This California. person who shall sell or offer for sale or Ordinance. Any person guilty of a (d) The licensed premises shall be distribute or transport in any manner, violation of this ordinance shall be subject to patrol by the tribal any liquor in violation of this ordinance, liable to pay the Tribe a penalty not to enforcement department, and such other or who shall operate or shall have liquor exceed $500 per violation as civil law enforcement officials as may be in his possession with intent to sell or damages to defray the Tribe’s cost of authorized under federal, California, or distribute without a permit, shall be enforcement of this ordinance. In tribal law. guilty of a violation of this ordinance. addition to any penalties so imposed, (e) The licensed premises shall be Section 602. Purchases From Other any license issued hereunder may be open to inspection by duly authorized Than Licensed Facilities. Any person suspended or canceled by the Tribal tribal officials at all times during the within the boundaries of the Rancheria Council after 10 days notice to the regular business hours. who buys liquor from any person other licensee. The decision of the Tribal (f) Subject to the provisions of than at a properly licensed facility shall Council shall be final. subsection (g) of this section, no be guilty of a violation of this ordinance. Section 610. Acceptable intoxicating beverages shall be sold, Section 603. Sales to Persons Under Identification. Where there may be a served, disposed of, delivered or the Influence of Liquor. Any person who question of a person’s right to purchase consumed on the licensed premises sells liquor to a person apparently under liquor by reason of his age, such person except in conformity with the hours and the influence of liquor shall be guilty of shall be required to present any one of days prescribed by the laws of the State a violation of this ordinance. the following issued cards of of California, and in accordance with Section 604. Consuming Liquor in identification which shows his correct the hours fixed by the Council, provided Public Conveyance. Any person engaged age and bears his signature and that the licensed premises shall not wholly or in part in the business of photograph: operate or open earlier or operate or carrying passengers for hire, and every (a) Driver’s license of any state or close later than is permitted by the laws agent, servant or employee or such identification card issued by any State of the State of California. person who shall knowingly permit any Department of Motor vehicles; (g) No liquor shall be sold within 200 person to drink any liquor in any public (b) United States Active Duty feet of a polling place on tribal election conveyance shall be guilty of an offense. Military; or days, or when a referendum is held of Any person who shall drink any liquor (c) Passport. VerDate 11 Section 611. Possession of Liquor (a) For the payment of all necessary Sunridge Lane, Baker City, Oregon. Contrary to This Ordinance. Alcoholic personnel, administrative costs, and Public comments will be received from beverages which are possessed contrary legal fees for the operation and its 12:00 noon to 12:15 p.m., February 20, to the terms of this ordinance are activities. 2001. Topics to be discussed are the declared to be contraband. Any tribal (b) The remainder shall be turned Action Plan Development for Advisory agent, employee, or officer who is over to the Trust Account of the Tribe. Board recommendations for FY2001– authorized by the Tribal Council to 2002, Marketing Strategy for NHOTIC, Chapter IX—Severability and enforce this section shall have the and the Capital Expansion Plan. Miscellaneous authority to, and shall seize, all DATES: The meeting will begin at 8:00 contraband. Section 901. Severability. If any a.m. and run to 12:00 Noon, February Section 612. Disposition of Seized provision or application of this 20, 2001. Contraband. Any officer seizing ordinance is determined by review to be FOR FURTHER INFORMATION CONTACT: contraband shall preserve the invalid, such adjudication shall not be David B. Hunsaker, Bureau of Land contraband in accordance with the held to render ineffectual the remaining Management, National Historic Oregon appropriate California law code. Upon portions of this title or to render such Trail, Interpretive Center, PO Box 987, being found in violation of the provisions inapplicable to other persons Baker City, OR 97814, (Telephone 541– ordinance by the Tribal Council, the or circumstances. 523–1845). party shall forfeit all right, title and Section 902. Prior Enactments. All interest in the items seized which shall prior enactments of the Tribal Council, Roy L. Masinton, become the property of the Tribe. which are inconsistent with the Acting Vale District Manager. provisions of this ordinance, are hereby [FR Doc. 01–2396 Filed 1–25–01; 8:45 am] Chapter VII—Taxes rescinded. BILLING CODE 4310–33–M Section 701. Sales Tax. There is Section 903. Conformance with hereby levied and shall be collected a California Laws. All acts and tax on each sale of alcoholic beverages transactions under this ordinance shall DEPARTMENT OF THE INTERIOR on the Rancheria in the amount of 1 be in conformity with the laws of the percent of the amount actually State of California as that term is used Bureau of Land Management collected, including payments by major in 18 U.S.C. 1161. [CO–170–1430–00; COC 64613, COC 64614] credit cards. The tax imposed by this Section 904. Effective Date. This section shall apply to all retail sales of ordinance shall be effective on such Notice of Realty Action: Commercial liquor on the Rancheria and shall date as the Secretary of the Interior Permit/Lease/Easement on Public preempt any tax imposed on such liquor certifies this ordinance and publishes Land. sales by the State of California. the same in the Federal Register. AGENCY: Bureau of Land Management, Section 702. Payment of Taxes to Chapter X—Amendment Interior. Tribe. All taxes from the sale of This ordinance may only be amended ACTION: Proposed commercial permit/ alcoholic beverages on the Rancheria by majority vote of the Tribal Council. lease/easement, section 302, Federal shall be paid over to the trust agent of Land Policy and Management Act. the Tribe. Chapter XI—Sovereign Immunity Section 703. Taxes Due. All taxes for Nothing contained in this ordinance SUMMARY: The Bureau of Land the sale of alcoholic beverages on the is intended to, nor does in any way Management, San Juan Field Office, Rancheria are due within 30 days at the limit, alter, restrict, or waive the Tribe’s Durango, Colorado, has for end of the calendar quarter for which sovereign immunity from unconsented consideration interest in land use the taxes are due. suit or action. authorization(s) under Section 302 of Section 704. Reports. Along with the Federal Land Policy and payment of the taxes imposed herein, [FR Doc. 01–2384 Filed 1–25–01; 8:45 am] Management Act of 1976 (90 Stat. 2762; the taxpayer shall submit an accounting BILLING CODE 4310–02–P 43 U.S.C. 1732), and regulations at 43 for the quarter of all income from the CFR Part 2920. There are two sale or distribution of said beverages as proponents for use of BLM managed DEPARTMENT OF THE INTERIOR well as for the taxes collected. public lands in the Silverton, Colorado Section 705. Audit. As a condition of Bureau of Land Management vicinity. Core Mountain Enterprises, obtaining a license, the licensee must LLC proposes to use approximately agree to the review or audit of its books [Docket No. OR–035–01–1220–AB: GP0–01– 1600 acres of public land for a and records relating to the sale of 0075] recreation/learning facility. Velocity alcoholic beverages on the Rancheria. Peak Inc, proposes to use approximately Notice of Meeting of the Oregon Trail Said review or audit may be done 3660 acres of public land for recreation Interpretive Center Advisory Board annually by the Tribe through its agents development. The respective areas of or employees whenever, in the opinion AGENCY: National Historic Oregon Trail proposed use overlap in some locations. of the Tribal Council, such a review or Interpretive Center, Vale District, Description: An area of federal lands audit is necessary to verify the accuracy Bureau of Land Management, Interior. managed by the Bureau of Land of reports. ACTION: Notice of meeting. Management, Department of the Interior, lying approximately within Chapter VIII—Profits SUMMARY: Notice is given that a meeting sections 20–21, 27–34 of protracted Section 801. Disposition of Proceeds. of the Advisory Board for the National Township 42 N., R.7 W., and, also The gross proceeds collected by the Historic Oregon Trail Interpretive within sections 3–9 of protracted Tribal Council from all licensing Center will be held on Tuesday, Township 41 N., R.7 W., New Mexico provided from the taxation of the sale of February 20, 2001 from 8:00 a.m. to Principal Meridian. Further described as alcoholic beverages on the Rancheria 12:00 Noon in the Library Room at the north of Silverton, in San Juan County, shall be distributed as follows: Best Western Sunridge Inn, One Colorado, and bounded as follows: VerDate 11 Beginning at the north end of Silverton, Colorado 18281, under the Act of January 15, 2001. It also officially thence westerly along Cement Creek and February 15, 1901 (16 U.S.C. 79, 522). rescinds several regional NTLs and one Colorado State Highway #110, to 3. A right-of-way for public highway regional Letter to Lessees and Operators Gladstone, thence southeasterly along granted to the Colorado Department of (LTL). the Middle Fork of Cement Creek to the Transportation by right-of-way Colorado ADDRESSES: You may obtain copies of divide between the Middle Fork Cement 44623, under the Act of October 21, NTLs through our website at http:// Creek and the South Fork of the Animas 1976 (43 U.S.C. 1761). www.mms.gov/ntls/ or by contacting River, thence south along the eastern 4. A right-of-way for telephone service the MMS National Office or the OCS slope of the Boulder Gulch drainage to granted to QWEST Corporation by right- Region that issued the NTL at the Colorado State Highway #110, thence of-way Colorado 57856, under the Act of following addresses: southwest to the north end of Silverton October 21, 1976 (43 U.S.C. 1761). National Office: Minerals and the point of beginning. 5. A right-of-way for water facility Management Service, Engineering and The area described contains granted to the Town of Silverton by Operations Division, 381 Elden Street, approximately 3660 acres of federal right-of-way Colorado 39506, under the Herndon, Virginia 20170–4817, land and is exclusive of the private land Act of October 21, 1976 (43 U.S.C. Attention: Ms. Alexis London; adjacent to and contained within the 1761). telephone (703) 787–1600. perimeter of the project. 6. A right-of-way for access road Alaska OCS Region: Minerals A determination to analyze the granted to John Quenoy, et al, by right- Management Service, 949 East 36th proposed projects separately or jointly of-way Colorado 46581, under the Act of Avenue, Room 308, Anchorage, Alaska will be made subsequent to a review of October 21, 1976 (43 U.S.C. 1761). 99508–4363, Attention: Ms. Christine the proponents’ applications which will 7. A right-of-way for a communication Huffaker; telephone (907) 271–6621. be accepted after the publication of the site granted to San Miguel Power by Gulf of Mexico (GOM) OCS Region: NORA. right-of-way Colorado 36698, under the Minerals Management Service, 1201 If found suitable for the proposed Act of October 21, 1976 (43 U.S.C. Elmwood Park Blvd., New Orleans, uses, such uses would be authorized 1761). Louisiana 70123–2394, Attention: Mr. through a competitive or non- 8. A right-of-way for electric power Michael Dorner; telephone (504) 736– competitive process, by permit, lease, or distribution line granted to San Miguel 2599. easement, as appropriate, at fair market Power Association by right-of-way Pacific OCS Region: Minerals rental, paid annually in advance. A Colorado 7845, under the Act of March Management Service, 770 Paseo permit or permits, lease or leases, or 4, 1911 (16 U.S.C. 5, 420, 523). Camarillo, Camarillo, California 93010– easement or easements, singly or in Detailed information is available for 6064, Attention: Ms. Freddie Mason; combination, could authorize use of the review at the office of the Bureau of telephone (805) 389–7566. land for extreme skiing/snow-boarding Land Management, San Juan Field FOR FURTHER INFORMATION CONTACT: and winter related learning courses Office, 15 Burnett Court, Durango, Alexis London, Engineering and offered during the winter months, and Colorado. Operations Division; telephone (703) biking, hiking and all season 787–1600. sightseeing. A holder of a permit, DATES: Interested parties may submit easement, or lease would be required, in comments until March 12, 2001, to: SUPPLEMENTARY INFORMATION: The MMS advance of authorization, to agree to the Bureau of Land Management, Field is responsible for oil and gas or sulphur terms and conditions of 43 CFR 2920.7 Office Manager, San Juan Field Office, operations in the OCS to ensure and such additional terms and 15 Burnett Court, Durango, Colorado operational safety and protection of the conditions as are deemed necessary for 81301. environment. In addition to our the particular use authorization. FOR FURTHER INFORMATION CONTACT: regulations, under the authority of 30 Permitting/leasing or issuance of Charlie Higby, San Juan Field Office, CFR 250.103, we issue NTLs to provide easements under Section 302 of FLPMA Bureau of Land Management, 15 Burnett guidance and to further clarify, within the above-described area would Court, Durango, Colorado 81301; (970) interpret, or describe regulatory be consistent with the Bureau of Land 247–4874. requirements on a national or regional basis. Management’s current San Juan Dated: January 10, 2001. Resource Area Management Plan. In the past, we have also issued LTLs An authorized permittee, lessee, or Calvin Joyner, for this purpose or to communicate easement holder, would be required, in Field Office Manager. information to OCS lessees and advance, to reimburse the United States [FR Doc. 01–1361 Filed 1–25–01; 8:45 am] operators. Recently we have rescinded for reasonable administrative fees and BILLING CODE 4310–JB–U or revised most of the LTLs and reissued monitoring of construction, operation, them as NTLs. There are still a few maintenance, and rehabilitation of the active LTLs in the GOM OCS Region land authorized. The reimbursement of DEPARTMENT OF THE INTERIOR that have not yet been superseded by NTLs or rescinded. Although not listed costs would be in accordance with 43 Minerals Management Service CFR 2920.6. in this Notice, please note that they will Any permit, lease, or easement Outer Continental Shelf (OCS) remain in effect until they are authorized would be subject to valid Operations; Annual List of Notices to superseded or rescinded. To obtain a list existing rights, including, but not Lessees and Operators (NTLs) or copies of the active LTLs, please limited to the following: contact the GOM OCS Region. 1. A right-of-way for microwave AGENCY: Minerals Management Service For your convenience, the following reflector purposes granted to Western (MMS), Interior. table lists the current active NTLs Tele-Comm by right-of-way Colorado ACTION: Notice. issued by the National Office and the 4702, under the Act of March 11, 1911. OCS Regions. Therefore, if an NTL 2. A right-of-way for electric power SUMMARY: This notice informs the issued before January 15, 2001, is not distribution line granted to San Miguel public, industry, and other Government listed, it is canceled and no longer in Power Association by right-of-way agencies of NTLs that are in effect as of effect. VerDate 11 Effective NTL No. date Title/subject Current Notices to Lessees and Operators Issued by the National Office 96–7N* ...... 12/10/96 OCS Civil Penalties Program (*Modified by 97–5N). 97–2N* ...... 08/01/97 Well Naming and Numbering Standards (*Will be superseded 5/01/2001 by NTL 00–N07). 97–3N ...... 08/01/97 OCS Program—Annual Performance Review. 97–4N ...... 09/01/97 Civil Penalties Program Annual Summary to be Published. 97–5N* ...... 10/07/97 OCS Civil Penalties Program Revised Assessment Matrix (*Modifies 96–7N). 98–1N ...... 01/02/98 Interim Guidance for Applying Platform Design Criteria from American Petroleum Institute (API) Rec- ommended Practice (RP) 2A, ‘‘Planning, Designing, and Constructing Fixed Offshore Platforms,’’ 19th Edition (8/1/91) and 20th Edition (7/1/93) and its Supplement 1 (2/1/97). 98–4N ...... 03/04/98 Interim Guidance for Applying ‘‘Simplified Fatigue Analysis’’ Procedure from API RP 2A. 98–5N ...... 04/01/98 Application and Audit Fees for Requests for Royalty Relief or Adjustment Under 30 CFR Part 203. 98–12N ...... 07/01/98 Determination of Pollution Inspection Frequencies for Unmanned Facilities. 98–13N ...... 07/01/98 Use of New or Alternative Technology and Procedures. 98–18N ...... 12/28/98 Supplemental Bond Procedures. 98–18N Addendum 1 ...... 09/12/00 Additional Guidance for Third-Party Guarantees. 99–N01 ...... 01/06/99 Guidelines for Oil Spill Financial Responsibility for Covered Facilities. 99–N03 ...... 03/01/99 Performance Measures for OCS Operators & Form MMS–131. 99–N04 ...... 03/05/99 Revised Guidelines for Royalty Relief Under 30 CFR Part 203. 00–N03* ...... 10/13/00 Clarification of 30 CFR 250, Subpart O—Well Control & Production Safety Training (*Rescission Date 10/15/2002). 00–N04* ...... 09/15/01 Guidelines for Crane & Rigging Operations on Fixed Offshore OCS Facilities (*Rescission Date 04/ 01/2001). 00–N05 ...... 10/01/00 Conservation Information. 00–N06 ...... 10/01/00 Deepwater Operations Plans. 00–N07 ...... 05/01/01 Well Naming and Numbering Standards. 00–N08* ...... 12/21/00 Synthetic Moorings Workshop (*Rescission Date 01/30/2001). Current Notices to Lessees and Operators Issued by the Alaska OCS Region 00–A01 ...... 01/27/00 Shallow Hazards Geophysical Survey & Evaluation for OCS Exploration and Development Drilling. 00–A02 ...... 01/27/00 Shallow Hazards Geophysical Survey & Evaluation for OCS Pipeline Routes and Rights-of-Way. 00–A03 ...... 01/27/00 Archaeological Survey & Evaluation for OCS Exploration and Development Activities. Current Notices to Lessees and Operators Issued by the Gulf of Mexico OCS Region 96–08 ...... 11/25/96 Time Allowed for the Correction of Incidents of Noncompliance (INC’s) and for the Return of Notifica- tion of INC Forms. 96–10 ...... 12/05/96 Air Emissions Information for Application for Accessory Platforms to Pipeline Rights-of-Way. 97–06 ...... 03/01/97 Timely Submittal of Drilling Well Records in Accordance with 30 CFR 250.66 [Redesignated 30 CFR 250.416]. 97–07 ...... 03/01/97 Revised Conditions of Approval to Drill, Sidetrack and/or Complete for Oil and Gas Production. 97–16 ...... 08/01/97 Production Within 500 Feet of a Unit or Lease Line. 97–17 ...... 08/01/97 Containment Requirements for Bolted or Welded Stock Tanks. 97–18 ...... 08/18/97 Timely Submittal of Deepwater Royalty Relief Applications. 98–05 ...... 07/01/98 Confirmation of Deepwater Royalty Relief for Leases Issued After November 28, 1995. 98–06 ...... 08/10/98 Archaeological Requirements. 98–09 ...... 08/10/98 Proposed and As-Built Pipeline Location Data. 98–10 ...... 08/10/98 Best Available Control Technology (Sulphur Dioxide). 98–12 ...... 08/10/98 Implementation of Consistent Biological Stipulation Measures in the Central and Western Gulf of Mexico. 98–13 ...... 08/10/98 Minimizing Oil and Gas Structures in the Gulf of Mexico. 98–16 ...... 08/10/98 Hydrogen Sulfide (H2S) Requirements. 98–18 ...... 09/01/98 Change of Address for the Submittal of Certain Drilling Records in Accordance with 30 CFR 250.416. 98–19 ...... 09/15/98 Temporary Abandonment of Wells and Maintenance, Protection and Removal of Underwater Casing Stubs. 98–20 ...... 09/15/98 Shallow Hazards Requirements. 98–23 ...... 10/15/98 Interim Reporting Requirements for 30 CFR 250, Subpart K, Oil and Gas Production Rates. 98–24 ...... 10/15/98 Rate Control Section Address, Office Hours, and Telephone Procedures. 98–26 ...... 11/30/98 Minimum Interim Requirements for Site Clearance (and Verification) of Abandoned Oil and Gas Structures in the Gulf of Mexico. 98–27 ...... 12/01/98 Guidelines for Eliminating Trash and Debris Resulting from Gulf of Mexico OCS Operations. 98–29 ...... 12/18/98 Announcement of Project to Clean Up Historical Well Data. 98–29 Addendum 1 ...... 03/15/99 Well Records for Information Corrected or Completed During Project to Clean Up Historical Well Data Exemption from Incidents of Non-compliance. 98–29 Addendum 2 ...... 02/16/00 Wells (holes-in-ground) Without Assigned MMS API Numbers. 98–30 ...... 03/01/99 Regional Oil Spill Response Plans. 99–G01 ...... 02/12/99 Deepwater Emergency Well Control Operations. 99–G05 ...... 04/26/99 Submittal of Documents for Platforms and Structures. 99–G06 ...... 05/01/99 Economic Assumptions for RSVP Deepwater Royalty Relief Model. 99–G07 ...... 05/03/99 U.S. Air Force Communication Towers. 99–G08 ...... 05/10/99 Removing Underwater Casing Stubs. 99–G09 ...... 05/10/99 Location of Choke and Kill Lines on BOP Stacks. VerDate 11 Effective NTL No. date Title/subject 99–G10 ...... 05/11/99 Designated Safe Welding and Burning Areas on Rigs. 99–G11 ...... 06/07/99 Approval of Acidizing Operations. 99–G12 ...... 06/07/99 Increased Level II Underwater Structural Inspection Intervals. 99–G15* ...... 06/30/99 Production Activities Information Collection and Reporting (Western Gulf of Mexico) (*Rescission Date 1/31/2001). 99–G16 ...... 07/08/99 Live-Bottom Surveys and Reports. 99–G17 ...... 07/08/99 North American Datum 83 Implementation Plan for the GOM. 99–G19 ...... 09/07/99 Downhole Commingling Policies. 99–G20 ...... 09/07/99 Downhole Commingling Applications. 99–G21 ...... 09/13/99 Platform Removal Applications. 99–G22 ...... 09/24/99 Guidelines for Subsea Disposal & Offshore Storage of Solid Wastes. 00–G02 ...... 01/25/00 Deepwater Experimental Oil Release Study. 00–G03 ...... 01/28/00 Functional Responsibilities of MMS Regulations. 00–G04 ...... 01/28/00 Well Producibility Determinations. 00–G06 ...... 02/04/00 Supervisory Control and Data Acquisition (SCADA) Systems. 00–G07 ...... 02/22/00 Accidental Disconnect of Marine Drilling Risers. 00–G08* ...... 03/01/00 Drilling Windows, Eastern Gulf of Mexico (*Expires 3/1/2001). 00–G11 ...... 05/12/00 Pollution Inspection Intervals for Unmanned Facilities. 00–G13 ...... 05/25/00 Production Safety Systems Requirements. 00–G14 ...... 08/29/00 Contact with District Offices and the Pipeline section Outside Regular Work Hours. 00–G15 ...... 09/06/00 Hurricane and Tropical Storm Evacuation and Production Curtailment Procedures. 00–G16 ...... 09/07/00 Guidelines for General Lease Surety Bonds. 00–G17 ...... 09/01/00 Suspension of Production/Operations Overview. 00–G18* ...... 11/21/00 Meteorological Data Collection and Reporting (Breton National Wildlife Refuge/Wilderness Area) (*Rescission Date 11/30/2001). 00–G19 ...... 11/21/00 Production Activities Information Collection and Reporting (Breton National Wildlife Refuge/Wilder- ness Area) (*Rescission Date 11/30/2001). 00–G20 ...... 12/06/00 Deepwater Chemosynthetic Communities. 00–G21 ...... 12/26/00 Information Requirements for Exploration Plans and Development Operations Coordination Docu- ments. 00–G22 ...... 12/22/00 Subsalt Lease Term Extension. Current Notices to Lessees and Operators Issued by the Pacific OCS Region 92–01 ...... 03/24/92 Warning Signs: Pipelines and Power Cables. 98–01 ...... 03/05/98 Santa Maria District Office Phone Call Procedures and Hours. 98–02 ...... 03/05/98 Camarillo District Office Phone Call Procedures and Hours. 98–04 ...... 07/01/98 Gas Volume Statement Requirements. 98–05 ...... 08/04/98 Archaeological Survey and Report Requirements. 98–06 ...... 08/04/98 Change of Ownership/Operatorship of Leases and Pipelines. 98–07 ...... 08/04/98 Helideck Closures. 98–09 ...... 08/11/98 Hydrogen Sulfide (H2S) Requirements. 98–10 ...... 08/21/98 Liquid Royalty Measurement Facilities. 98–11 ...... 08/31/98 Submission of Digitized Well Log Data on Magnetic Tape. 98–12 ...... 08/11/98 Guidelines for Shallow Hazards and Report Requirements for Exploration Drilling. 98–13 ...... 08/11/98 Guidelines for Shallow Hazards and Report Requirements for OCS Development Operations. 98–14 ...... 11/04/98 Cooperative Drilling Rig (Only Non-Producing Lease Operators). 99–P01 ...... 07/15/99 Oil Spill Response Plans. 99–P04 ...... 11/04/99 Flaring and Venting Gas. 99–P05 ...... 12/10/99 Decommissioning of Pacific OCS Facilities. 00–P01 ...... 01/20/00 Standby Testing During Air Pollution Emergency Episodes. 00–P02 ...... 04/17/00 Sustained Casing Pressure. 00–P04 ...... 11/01/00 Biological Survey Criteria. Effective with the publication of this • NTL 86–05, New Form for revising the 30 CFR 250, Subpart A Notice, we are rescinding the following Designated Operators. This NTL has regulations, at 250.180. National NTL, two NTLs issued by the served its purpose and is no longer • LTL dated August 28, 1992, subject: GOM OCS Region, and one LTL issued needed. The form MMS–1123 used to NAD 27 & NAD 83. by the Pacific OCS Region: designate operators is available on the Dated: January 8, 2001. • NTL 98–2N, Guidance Regarding MMS website at: http:// Carolita U. Kallaur, API Specification 14A, ‘‘Specification www.gomr.mms.gov/homepg/ for Subsurface Safety Valve mmsforms/frmindx.html. Associate Director for Offshore Minerals Management. Equipment,’’ Ninth Edition (7/1/94) and • NTL 98–15, Time Allowed Between Supplement 1. This NTL is superseded Lease Holding Operations (30 CFR [FR Doc. 01–2308 Filed 1–25–01; 8:45 am] by the final rule published December 8, 250.13 [Redesignated 30 CFR 250.113]). BILLING CODE 4310–MR–W 2000 (65 FR 76933). This NTL is superseded by the final rule VerDate 11 DEPARTMENT OF THE INTERIOR Not Brought Forward For Analysis. It individuals submitting comments provides a baseline from which to requested that their name or\and National Park Service compare and evaluate the magnitude of address be withheld from public proposed changes, and to measure the disclosure, it will be honored to the Final Legislative Environmental Impact foreseeable environmental effects of extent allowable by law. Such requests Statement, Timbisha Shoshone those changes. This no-action concept must be stated prominently in the Homeland, Death Valley National Park; follows the guidance of the Council on beginning of the comments. There may Notice of Availability Environmental Quality, which describes also be circumstances wherein the NPS SUMMARY: Pursuant to § 102(2)c of the the no-action alternative as no change will withhold a respondent’s identity as National Environmental Policy Act of from the current management direction allowable by law. As always, the NPS 1969 (Pub. L. 91–190, as amended), and or level of management intensity. will make available for public Background: Although initial scoping the Council on Environmental Quality inspection all submissions from is not required for the preparation of a regulations (40 CFR parts 1500–1508), at organizations or businesses and from LEIS, an understanding of public the request of the Department of the persons identifying themselves as concerns was desired. Accordingly, a Interior, the National Park Service, in representatives or officials of notice was published in the Federal cooperation with the Bureau of Land organizations and businesses, and Register on April 19, 1999 announcing Management, Fish and Wildlife Service, anonymous comments may not be to the public the opportunity of and the Bureau of Reclamation has considered. commenting on a Draft Secretarial Recommendation Process: A notice of prepared a Final Legislative Report regarding the Homeland final recommendations will be Environmental Impact Statement (LEIS) initiative. In addition, six public published in the Federal Register not identifying and evaluating alternatives meetings were conducted (attended by sooner than thirty (30) days after the for a Timbisha Shoshone Homeland 79 persons), and five informational final document is distributed. This is within and around Death Valley meetings were held at the request of expected to occur early in 2001. The National Park, California. Potential state congressional delegations and National Park Service officials impacts and appropriate mitigation county commissioners and supervisors. responsible for implementation will be strategies are identified and assessed for Over 550 letters were received during the Superintendent, Death Valley each alternative. the public scoping period. In October National Park and the Regional Director, On July 19, 2000 the United States 1999, a copy of the 11-page Scoping Pacific West Region; as well as the State Senate passed the Timbisha Shoshone Summary Document was mailed to Directors, Bureau of Land Management, Homeland Act. A similar version of the everyone who attended the public Nevada and California; the Assistant Act was passed on October 17, 2000 by meetings or commented during the Secretary for Indian Affairs; and the the House of Representatives, and on process. Bureau of Indian Affairs, Central November 1, 2000 the Act was signed by In October, 1999 the Department of California Agency. the President. The plan will guide the Interior determined that the NPS management actions in the transfer of would serve as the lead agency for this Dated: January 9, 2001. lands and the development of conservation planning and Patricia L. Neubacher, cooperative agreements. environmental impact analysis process. Acting Regional Director, Pacific West Region. Proposal: The proposed Timbisha As noticed in the Federal Register on [FR Doc. 01–2340 Filed 1–25–01; 8:45 am] Shoshone Homeland (Alternative A- May 12, 2000, a draft Timbisha BILLING CODE 4310–70–P Preferred) would transfer approximately Shoshone Homeland LEIS was prepared 7,500 acres of federal lands (identified pursuant to the National Environmental as ‘‘multiple use’’ and managed by Policy Act, and distributed by mail and DEPARTMENT OF THE INTERIOR Death Valley National Park and the libraries for a formal public review National Park Service Bureau of Land Management in period ending August 21, 2000. In California and Nevada) into trust with addition, the document was available Cape Cod National Seashore, South the Department of the Interior for the via the internet at http// Wellfleet, MA; Cape Cod National creation of a tribal homeland. www3.iwvisp.com/blm/report. Five Seashore Advisory Commission Two Permission would be sought for public meetings were conducted Hundred Thirty Second Meeting; acquisition of two parcels (attended by 100 persons), and 238 Notice of Meeting (approximately 120 acres of former letters were received. Indian allotted lands) in Saline Valley, Availability: The Final Timbisha Notice is hereby given in accordance California, and approximately 2,430 Shoshone Homeland LEIS was sent with the Federal Advisory Committee acres near Lida, Nevada, from private directly to the project mailing list. Act (Pub. L. 92–463, 86 Stat. 770, 5 owners, as willing sellers. Also, water Copies are also available at park U.S.C. App 1, section 10), that a meeting rights (either appurtenant or separately headquarters at Furnace Creek, field of the Cape Cod National Seashore held) could be obtained from willing offices of BLM Ridgecrest, California Advisory Commission will be held on sellers. Cooperative activities at Ash and Tonopah, Nevada. Also, the Final Friday, February 9, 2001. Meadows National Wildlife Refuge LEIS will be posted on the internet at The Commission was reestablished would also be undertaken. Some http://www.nps.gov/deva. Inquiries pursuant to Public Law 87–126 as portions of lands previously designated should be addressed to the amended by Public Law 105–280. The by Congress as ‘‘wilderness’’ would be Superintendent, Death Valley National purpose of the Commission is to consult also recognized as Timbisha Shoshone Park, P.O. Box 579, Death Valley, with the Secretary of the Interior, or his Natural and Cultural Preservation Area, California 92328. designee, with respect to matters but ownership would not be transferred. All comments received throughout relating to the development of Cape Cod Alternatives: Alternative B maintains the conservation planning and National Seashore, and with respect to the status quo, as described in Chapter environmental impact analysis process carrying out the provisions of sections 4 2, Description of Proposed Action, No are archived and will be available for and 5 of the Act establishing the Action, and Alternatives Considered But public review in the park’s library. If Seashore. VerDate 11 The Commission members will meet Election of Chairperson and Vice- Pawnee, OK; the Southern Plains Indian at 1 p.m. at Headquarters, Marconi Chairperson, Update from the President Museum and Crafts Center, Anadarko, Station, Wellfleet, Massachusetts for the of the Gettysburg National Battlefield OK; Mr. Warner, Oklahoma City, OK; regular business meeting to discuss the Museum Foundation, and the Citizens Mr. Milford Chandler, Detroit, MI; and following: Open Forum. Mr. Richard Pohrt, Flint, MI. In 1981, 1. Adoption of Agenda FOR FURTHER INFORMATION CONTACT: John The Detroit Institute of Arts purchased 2. Approval of minutes of previous meeting A. Latschar, Superintendent, Gettysburg this bear claw necklace from Mr. Pohrt. (November 16, 2000) National Military Park, 97 Taneytown Based on consultation and 3. Reports of Officers Road, Gettysburg, Pennsylvania 17325. documentary evidence provided by 4. Report of ORV Subcommittee SUPPLEMENTARY INFORMATION: The historic photographs and newspaper 5. Superintendent’s Report meeting will be open to the public. Any accounts, this bear claw necklace is Dune Shacks known to have been in the possession Highlands Center member of the public may file with the Salt Pond Visitor Center Commission a written statement of Mr. James White Cloud (born 1841- Zoning Standards concerning agenda items. The statement died 1940), a tribal chief of the Iowa Status nomination process—role of should be addressed to the Advisory Tribe of Kansas and Nebraska. alternates Commission, 97 Taneytown Road, Documentation also indicates that this News from Washington Gettysburg, Pennsylvania 17325. necklace was used in 1940 during the 6. Old Business Minutes of the meeting will be available installation of Mr. Louis White Cloud, Advisory Commission Handbook for inspection four weeks after the son and successor of Mr. James White 7. New Business meeting at the permanent headquarters Cloud, as chief of the Iowa Tribe of 8. Agenda for next meeting—March 23, 2001 Kansas and Nebraska. Further 9. Public comment and of the Gettysburg National Military Park 10. Adjournment located at 97 Taneytown Road, documentation also indicates that in Gettysburg, Pennsylvania 17325. 1952, this necklace was withheld by Mr. The meeting is open to the public. It Dated: January 11, 2001. Daniel White Cloud, son and successor is expected that 15 persons will be able to Mr. Louis White Cloud, from the John A. Latschar, to attend the meeting in addition to installation of Mr. James Rhodd, elected Commission members. Superintendent, Gettysburg NMP/Eisenhower chief of the Iowa Tribe of Kansas and NHS. Interested persons may make oral/ Nebraska. Consultation evidence offered written presentations to the Commission [FR Doc. 01–2348 Filed 1–25–01; 8:45 am] by a direct lineal descendant (now during the business meeting or file BILLING CODE 4310–70–M deceased) of Mr. James White Cloud written statements. Such requests argued that the necklace had been should be made to the park DEPARTMENT OF THE INTERIOR inherited through direct patrilineal superintendent at least seven days prior descent through male members of the to the meeting. Further information National Park Service White Cloud family. Officials of The concerning the meeting may be obtained Detroit Institute of Arts do not believe from the Superintendent, Cape Cod Notice of Intent to Repatriate a Cultural that any direct patrilineal descendants National Seashore, 99 Marconi Site Item in the Possession of The Detroit of Mr. James White Cloud are now Road, Wellfleet, MA 02667. Institute of Arts, Detroit, MI living. Consultation evidence provided Dated: January 18, 2001. by representatives of the Iowa Tribe of AGENCY: National Park Service Maria Burks, Kansas and Nebraska indicates that this ACTION: Notice Superintendent. bear claw necklace is a symbol of [FR Doc. 01–2341 Filed 1–25–01; 8:45 am] Notice is hereby given under the authority used by Iowa chiefs and, as BILLING CODE 4310–70–P Native American Graves Protection and such, passed down in installation Repatriation Act, 43 CFR 10.10 (a)(3), of ceremonies from chief to chief. the intent to repatriate a cultural item in Representatives of the Iowa Tribe of DEPARTMENT OF THE INTERIOR the possession of The Detroit Institute of Kansas and Nebraska also state that this Arts, Detroit, MI that, based on bear claw necklace has ongoing National Park Service preponderance of the evidence, meets historical, traditional, and cultural importance central to the tribe itself, Gettysburg National Military Park the definition of ‘‘object of cultural patrimony’’ under Section 2 of the Act. and could not have been alienated, AGENCY: National Park Service, Interior. This notice is published as part of the appropriated, or conveyed by any individual. Since the Indian ACTION: Notice of meeting. National Park Service’s administrative responsibilities under NAGPRA, 43 CFR Reorganization Act of 1934 established SUMMARY: This notice sets forth the date 10.2 (c). The determinations within this the authority of the Iowa Tribe of of the thirty-fourth meeting of the notice are the sole responsibility of the Kansas and Nebraska to elect tribal Gettysburg National Military Park museum that has control of the cultural chiefs, officials of The Detroit Institute Advisory Commission. item. The National Park Service is not of Arts believe a reasonable DATES: The public meeting will be held responsible for the determinations interpretation of the facts is that the on February 15, 2001, from 7:00 p.m. to within this notice. Iowa Tribe of Kansas and Nebraska now 9:00 p.m. The 1 cultural item is a bear claw possesses authority over traditional Location: The meeting will be held at necklace composed of 30 grizzly bear symbols of their tribal chiefs, the the Cyclorama Auditorium, 125 claws separated by large, faceted blue evidence of the necessity of direct Taneytown Road, Gettysburg, glass beads attached to a foundation patrilineal descent notwithstanding. Pennsylvania 17325. wrapped with trimmed otter fur. The Iowa Tribe of Kansas and Agenda: Sub-Committee Reports, During the 1950’s, according to Nebraska will have this bear claw Federal Consistency Projects Within the documentation and oral testimony, this necklace curated at an established Gettysburg Battlefield Historic District, cultural item passed through the museum until a tribal museum is Operational Updates on Park Activities, possession of the Lyons Pawn Shop, established. VerDate 11 Based on the above-mentioned The cultural item is a carved Dated: January 17, 2001. information, officials of The Detroit ceremonial staff with the head of Raven, John Robbins, Institute of Arts believe that, pursuant to 85 cm long (accession number Assistant Director, Cultural Resources 43 CFR 10.2 (d)(4), this one cultural 1987.164/2, catalog number 85.7). Stewardship and Partnerships. item has ongoing historical, traditional, The cultural item was acquired by the [FR Doc. 01–2323 Filed 1–25–01; 8:45 am] and cultural importance central to the late Charles Bacon of Ilwaco, WA, on BILLING CODE 4310–70–F tribe itself, and could not have been the Quinault Reservation in Taholah, alienated, appropriated, or conveyed by any individual. Officials of The Detroit WA, in 1952. Mr. Bacon transferred the DEPARTMENT OF THE INTERIOR Institute of Arts also have determined cultural item to the Ilwaco Heritage that, pursuant to 43 CFR 10.2 (e), there Museum in 1987. National Park Service is a relationship of shared group Cultural affiliation with the Quinault Notice of Inventory Completion for identity that can be reasonably traced Tribe of the Quinault Reservation, Native American Human Remains and between this object of cultural Washington, is indicated by the object’s Associated Funerary Objects in the patrimony and the Iowa Tribe of Kansas place of acquisition on the Quinault Possession of the Milwaukee Public and Nebraska. Reservation in Taholah, WA. Museum, Milwaukee, WI This notice has been sent to officials Correspondence with the Quinault of the Iowa Tribe of Kansas and Cultural Center further indicates the AGENCY: National Park Service Nebraska and the Iowa Tribe of object is a speaker’s staff needed by ACTION: Notice Oklahoma. Representatives of any other Quinault traditional religious leaders Notice is hereby given in accordance Indian tribe that believes itself to be today for ongoing sacred Thunderbird, culturally affiliated with this object of with provisions of the Native American Wolf, Bear, Sea Lion, Otter, and Raven Graves Protection and Repatriation Act cultural patrimony should contact ceremonies, and to honor the First David W. Penney, Chief Curator, The (NAGPRA), 43 CFR 10.9, of the Salmon Ceremony, the Salmon Berry completion of an inventory of human Detroit Institute of Arts, 5200 Feasts, and Elk Festival. Consultation Woodward Avenue, Detroit, MI 48202, remains and associated funerary objects with the Quinault Cultural Center in the possession of the Milwaukee telephone (313) 833-1432, before suggests that, since one would expect Public Museum, Milwaukee, WI. February 26, 2001. Repatriation of this such an object to be handed down from This notice is published as part of the object of cultural patrimony to the Iowa generation to generation within a family National Park Service’s administrative Tribe of Kansas and Nebraska may begin responsibilities under NAGPRA, 43 CFR after that date if no additional claimants group, the raven staff also may be an object of cultural patrimony. 10.2 (c). The determinations within this come forward. notice are the sole responsibility of the Based on the above-mentioned Dated: January 15, 2001. museum, institution, or Federal agency information, and with the John Robbins, that has control of these Native recommendation of the staff of the Assistant Director, Cultural Resources American human remains and Stewardship and Partnerships. Ilwaco Heritage Museum, the Ilwaco associated funerary objects. The Heritage Foundation Board of Directors [FR Doc. 01–2346 Filed 1–25–01; 8:45 am] National Park Service is not responsible has determined that, pursuant to 43 CFR BILLING CODE 4310–70–F for the determinations within this 10.2(d)(3), this cultural item is a specific notice. ceremonial object needed by traditional A detailed assessment of the human DEPARTMENT OF THE INTERIOR Native American religious leaders for remains was made by Milwaukee Public the practice of traditional Native Museum professional staff and contract National Park Service American religions by their current-day specialists in physical anthropology, in adherents. The Ilwaco Heritage consultation with representatives of the Notice of Intent to Repatriate a Cultural Foundation Board of Directors also has Confederated Tribes of the Colville Item in the Possession of the Ilwaco determined that, pursuant to 43 CFR Reservation. Heritage Foundation, Ilwaco, WA 10.2(e), there is a relationship of shared At an unknown date, human remains representing two individuals were AGENCY: National Park Service identity that can be traced between this cultural item and the Quinault Tribe of removed from an unknown site in the ACTION: Notice the Quinault Reservation, Washington. Okanogan Valley, WA, by Harry Brainerd. Mr. Brainerd donated the Notice is hereby given under the This notice has been sent to officials remains and associated funerary objects Native American Graves Protection and of the Quinault Tribe of the Quinault to the Milwaukee Public Museum in Repatriation Act, 43 CFR 10.10(a)(3), of Reservation, Washington. 1952. No known individuals were the intent to repatriate a cultural item in Representatives of any other Indian tribe identified. The 158 associated funerary the possession of the Ilwaco Heritage that believes itself to be culturally objects are 81 copper tube beads, 35 Museum, Ilwaco, WA, that meets the affiliated with this cultural item should blue and white glass beads, 10 shell definitions of ‘‘sacred object’’ under contact Hobe Kytr, Administrator of the beads, 24 dentalia shell beads, 2 Section 2 of the Act. Ilwaco Heritage Museum, P.O. Box 153, fragmented beaver incisors, 1 seal tooth, This notice is published as part of the Ilwaco, WA 98624, telephone (360) 642– 1 perforated elk’s tooth, 1 bone tube National Park Service’s administrative 3446, before February 26, 2001. bead, 1 metal button, 1 copper alloy responsibilities under NAGPRA, 43 CFR Repatriation of the cultural item to the ring, and 1 rectangular piece of copper 10.2(c). The determinations within this Quinault Tribe of the Quinault alloy with a perforation at one end. notice are the sole responsibility of the Reservation, Washington may begin Based on dental traits and funerary museum that has control over this after that date if no additional claimants associations, these individuals have cultural item. The National Park Service come forward. been identified as Native American. The is not responsible for determinations associated funerary objects date the within this notice. burial to circa 1800-1830. The VerDate 11 geographical location of the burial is DEPARTMENT OF THE INTERIOR of Native American ancestry. Officials of consistent with the prehistoric and the Milwaukee Public Museum also historic territory of the Confederated National Park Service have determined that, pursuant to 43 Tribes of the Colville Reservation. CFR 10.2 (e), there is a relationship of Notice of Inventory Completion for Consultation evidence provided by shared group identity that can be Native American Human Remains and representatives of the Confederated reasonably traced between these Native Associated Funerary Objects in the Tribes of the Colville Reservation American human remains and the Possession of the Milwaukee Public Central Council of Tlingit and Haida indicates that the Okanogan Valley is Museum, Milwaukee, WI part of the Okanogan people’s Indian Tribes of Alaska. traditional and historically known AGENCY: National Park Service. This notice has been sent to officials of the Central Council of Tlingit and occupation territory, and that ACTION: Notice. Haida Indian Tribes of Alaska, the descendents of the Okanogan now Yakutat Tlingit Tribe, Douglas Indian reside on the Colville Reservation. Notice is hereby given in accordance with provisions of the Native American Association, Angoon Community Based on the above-mentioned Graves Protection and Repatriation Act Association, Hoonah Indian information, officials of the Milwaukee (NAGPRA), 43 CFR 10.9, of the Association, the Organized Village of Public Museum have determined that, completion of an inventory of human Kake, Chilkat Indian Village (Klukwan), pursuant to 43 CFR 10.2 (d)(1), the remains and associated funerary objects Craig Community Association, Sitka human remains listed above represent in the possession of the Milwaukee Tribe of Alaska, Hydaburg Cooperative the physical remains of two individuals Public Museum, Milwaukee, WI. Association, Organized Village of of Native American ancestry. Officials of This notice is published as part of the Kasaan, Sealaska Heritage Foundation, the Milwaukee Public Museum also National Park Service’s administrative Cape Fox Corporation, Ketchikan Indian have determined that, pursuant to 43 responsibilities under NAGPRA, 43 CFR Corporation, and the Organized Village CFR 10.2 (d)(2), the 158 objects listed 10.2 (c). The determinations within this of Saxman. Representatives of any other above are reasonably believed to have notice are the sole responsibility of the Indian tribe that believes itself to be been placed with or near individual museum, institution, or Federal agency culturally affiliated with these human human remains at the time of death or that has control of these Native remains should contact Dr. Alex Barker, later as part of the death rite or American human remains and Anthropology Section Head, Milwaukee ceremony. Lastly, officials of the associated funerary objects. The Public Museum, 800 West Wells Street, Milwaukee, WI 53233, telephone (414) Milwaukee Public Museum have National Park Service is not responsible 278-2786, before February 26, 2001. determined that, pursuant to 43 CFR for the determinations within this Repatriation of the human remains to 10.2 (e), there is a relationship of shared notice. A detailed assessment of the human the Central Council of Tlingit and Haida group identity that can be reasonably Indian Tribes of Alaska may begin after traced between these Native American remains was made by Milwaukee Public Museum professional staff and contract that date if no additional claimants human remains and associated funerary come forward. objects and the Confederated Tribes of specialists in physical anthropology, in consultation with representatives of Dated: January 15, 2001. the Colville Reservation. Central Council of Tlingit and Haida John Robbins, This notice has been sent to officials Indian Tribes of Alaska. Assistant Director, Cultural Resources, of the Confederated Tribes of the At an unknown date, human remains Stewardship, and Partnerships. Colville Reservation. Representatives of representing one individual were [FR Doc. 01–2343 Filed 1–25–01; 8:45 am] any other Indian tribe that believes itself removed from an unknown location in BILLING CODE 4310–70–F to be culturally affiliated with these Rudyerd Bay, AK, by Walter Pelzer. Mr. human remains and associated funerary Pelzer donated the human remains to objects should contact Dr. Alex Barker, the Milwaukee Public Museum in 1946. DEPARTMENT OF THE INTERIOR Anthropology Section Head, Milwaukee At the time of donation, Mr. Pelzer Public Museum, 800 West Wells Street, identified the context of removal as a National Park Service Milwaukee, WI 53233, telephone (414) burial. No known individual was Notice of Inventory Completion for 278-2786, before February 26, 2001. identified. No associated funerary Native American Human Remains and Repatriation of the human remains and objects are present. Associated Funerary Objects in the associated funerary objects to the Based on cranial morphology and dental traits, this individual is Possession of the Milwaukee Public Confederated Tribes of the Colville Museum, Milwaukee, WI Reservation may begin after that date if identified as Native American. The no additional claimants come forward. geographical location of the grave is AGENCY: National Park Service. consistent with the historic territory of ACTION: Notice. Dated: January 15, 2001. the Tlingit people. Consultation John Robbins, evidence provided by representatives of Notice is hereby given in accordance Assistant Director, Cultural Resources, the Central Council of Tlingit and Haida with provisions of the Native American Stewardship, and Partnerships. Indian Tribes of Alaska indicates that Graves Protection and Repatriation Act [FR Doc. 01–2342 Filed 1–25–01; 8:45 am] the Rudyerd, AK, area is part of the (NAGPRA), 43 CFR 10.9, of the BILLING CODE 4310–70–F aboriginal territory of the Tlingit and completion of an inventory of human Haida peoples. remains and associated funerary objects Based on the above-mentioned in the possession of the Milwaukee information, officials of the Milwaukee Public Museum, Milwaukee, WI. Public Museum have determined that, This notice is published as part of the pursuant to 43 CFR 10.2 (d)(1), the National Park Service’s administrative human remains listed above represent responsibilities under NAGPRA, 43 CFR the physical remains of one individual 10.2 (c). The determinations within this VerDate 11 notice are the sole responsibility of the of the Fort Berthold Reservation, North R. J. Schwerbel while Mr. Schwerbel museum, institution, or Federal agency Dakota. was stationed in the Aleutian Islands that has control of these Native This notice has been sent to officials with the U.S. Navy. Mr. Schwerbel American human remains and of the Three Affiliated Tribes of the Fort donated the remains to the Milwaukee associated funerary objects. The Berthold Reservation, North Dakota. Public Museum in 1934. No known National Park Service is not responsible Representatives of any other Indian tribe individual was identified. No associated for the determinations within this that believes itself to be culturally funerary objects are present. notice. affiliated with these human remains Based on cranial morphology and A detailed assessment of the human should contact Dr. Alex Barker, remains was made by Milwaukee Public Anthropology Section Head, Milwaukee dental traits, this individual is Museum professional staff and contract Public Museum, 800 West Wells Street, identified as Native American. The specialists in physical anthropology, in Milwaukee, WI 53233, telephone (414) mode of interment in a cave and the consultation with representatives of the 278-2786, before February 26, 2001. geographical location of the burial is Three Affiliated Tribes of the Fort Repatriation of the human remains to consistent with the traditional territory Berthold Reservation, North Dakota. the Three Affiliated Tribes of the Fort of the Aleut Corporation. At an unknown date prior to 1921, Berthold Reservation, North Dakota may Based on the above-mentioned human remains representing two begin after that date if no additional information, officials of the Milwaukee individuals were removed from the claimants come forward. Public Museum have determined that, Motsiff Farm Site (32-MO-29), Mandan, Dated: January 15, 2001. pursuant to 43 CFR 10.2 (d)(1), the Morton County, ND, by Field Museum John Robbins, human remains listed above represent of Natural History staff L. L. Walters. Assistant Director, Cultural Resources, the physical remains of one individual Mr. Walters sold these human remains Stewardship, and Partnerships. of Native American ancestry. Officials of to the Milwaukee Public Museum in [FR Doc. 01–2344 Filed 1–25–01; 8:45 am] the Milwaukee Public Museum also 1921. No known individuals were BILLING CODE 4310–70–F have determined that, pursuant to 43 identified. No associated funerary CFR 10.2 (e), there is a relationship of objects are present. shared group identity that can be At an unknown date prior to 1921, DEPARTMENT OF THE INTERIOR reasonably traced between these Native human remains representing five American human remains and the Aleut individuals were removed from sites in National Park Service Corporation. the vicinity of Mandan, Morton County, ND, by Field Museum of Natural History Notice of Inventory Completion for This notice has been sent to officials staff L.L. Walters. Mr. Walters sold these Native American Human Remains and of the Native Village of Atka, the Native human remains to the Milwaukee Public Associated Funerary Objects in the Village of Akutan, the Native Village of Museum in 1921. No known individuals Possession of the Milwaukee Public Nelson Lagoon, the Native Village of were identified. No associated funerary Museum, Milwaukee, WI False Pass, the Agdaagux Tribe of King objects are present. AGENCY: National Park Service. Cove, the Native Village of Nikolski, St. Other material culture from the sites George Island Village Council, the Aleut ACTION: Notice. from which the remains were removed Community of St. Paul Island, the date the occupations to circa A.D. 1500- Notice is hereby given in accordance Qagun Tayagungin Tribe of Sand Point, 1700. with provisions of the Native American the Native Village of Unga, the Based on cranial morphology, dental Graves Protection and Repatriation Act Qawalangin Tribe of Unalaska, the traits, and burial associations, these (NAGPRA), 43 CFR 10.9, of the Native Village of Belkofski, and the individuals are identified as Native completion of an inventory of human Aleut Corporation. Representatives of American. The geographical location remains and associated funerary objects any other Indian tribe that believes itself and dates of the burials are consistent in the possession of the Milwaukee to be culturally affiliated with these with the traditional territory of the Public Museum, Milwaukee, WI. human remains should contact Dr. Alex Mandan people during the same time This notice is published as part of the Barker, Anthropology Section Head, period. Consultation evidence provided National Park Service’s administrative Milwaukee Public Museum, 800 West by representatives of the Three responsibilities under NAGPRA, 43 CFR Wells Street, Milwaukee, WI 53233, Affiliated Tribes of the Fort Berthold 10.2 (c). The determinations within this telephone (414) 278-2786, before Reservation, North Dakota has identified notice are the sole responsibility of the February 26, 2001. Repatriation of the the sites as part of the Mandan’s museum, institution, or Federal agency human remains to the Aleut Corporation traditional occupation area between that has control of these Native may begin after that date if no A.D. 1500-1700. American human remains and Based on the above-mentioned associated funerary objects. The additional claimants come forward. information, officials of the Milwaukee National Park Service is not responsible Dated: January 15, 2001. Public Museum have determined that, for the determinations within this John Robbins, pursuant to 43 CFR 10.2 (d)(1), the notice. Assistant Director, Cultural Resources, human remains listed above represent A detailed assessment of the human Stewardship, and Partnerships. the physical remains of seven remains was made by Milwaukee Public [FR Doc. 01–2345 Filed 1–25–01; 8:45 am] individuals of Native American Museum professional staff and contract ancestry. Officials of the Milwaukee specialists in physical anthropology, in BILLING CODE 4310–70–F Public Museum also have determined consultation with representatives of the that, pursuant to 43 CFR 10.2 (e), there Aleut Corporation. is a relationship of shared group In 1934, human remains representing identity that can be reasonably traced one individual were removed from a between these Native American human cave on ‘‘Dorathy Island’’ (probably remains and the Three Affiliated Tribes Dora Island, AK, first named in 1934) by VerDate 11 DEPARTMENT OF THE INTERIOR silk ribbon, fragments of a metal Dated: January 22, 2001. necklace with imitation gems, spectacle John Robbins, National Park Service glass with copper frame, an iron axe Assistant Director, Cultural Resources, head, a knife with wood handle, a Stewardship, and Partnerships. Notice of Inventory Completion for hatchet head, and a limestone Micmac- [FR Doc. 01–2347 Filed 1–25–01; 8:45 am] Native American Human Remains and style pipe. BILLING CODE 4310–70–F Associated Funerary Objects in the The associated funerary objects from Possession of the Milwaukee Public this site can be stylistically dated to Museum, Milwaukee, WI circa A.D. 1770-1875. DEPARTMENT OF THE INTERIOR Based on cranial morphology, dental AGENCY: National Park Service. National Park Service ACTION: Notice. traits, archeological context, and associated funerary objects, these Notice of Inventory Completion for Notice is hereby given in accordance individuals are determined to be Native Native American Human Remains and with provisions of the Native American American. The geographical location of Associated Funerary Objects in the Graves Protection and Repatriation Act the site and date of the burial is Possession of the Nebraska State (NAGPRA), 43 CFR 10.9, of the consistent with the historic territory of Historical Society, Lincoln, NE completion of an inventory of human the Lac du Flambeau Band of Lake remains and associated funerary objects Superior Indians and very near the AGENCY: National Park Service. in the possession of the Milwaukee modern-day Lac du Flambeau ACTION: Notice. Public Museum, Milwaukee, WI. Reservation. Consultation evidence Graves Protection and Repatriation This notice is published as part of the provided by representatives of the Lac Act (NAGPRA), 43 CFR 10.9, of the National Park Service’s administrative du Flambeau Band of Lake Superior completion of an inventory of human responsibilities under NAGPRA, 43 CFR Indians has identified Site 47-VI-7 as remains and associated funerary objects 10.2 (c). The determinations within this part of the area from which the Lac Du in the possession of the Nebraska State notice are the sole responsibility of the Flambeau Band was drawn following the creation of their reservation in the Historical Society, Lincoln, NE. museum, institution, or Federal agency This notice is published as part of the mid-19th century. that has control of these Native National Park Service’s administrative American human remains and Based on the above-mentioned responsibilities under NAGPRA, 43 CFR associated funerary objects. The information, officials of the Milwaukee 10.2(c). The determinations within this National Park Service is not responsible Public Museum have determined that, notice are the sole responsibility of the for the determinations within this pursuant to 43 CFR 10.2 (d)(1), the museum, institution, or Federal agency notice. human remains listed above represent that has control of these Native A detailed assessment of the human the physical remains of two individuals American human remains and remains was made by Milwaukee Public of Native American ancestry. Officials of associated funerary objects. The Museum professional staff and contract the Milwaukee Public Museum also National Park Service is not responsible specialists in physical anthropology, in have determined that, pursuant to 43 for the determinations within this consultation with representatives of the CFR 10.2 (d)(2), the 20 objects listed notice. Lac du Flambeau Band of Lake Superior above are reasonably believed to have A detailed assessment of the human Indians. been placed with or near individual remains and associated funerary objects In 1902, human remains representing human remains at the time of death or was made by Nebraska State Historical two individuals and associated funerary later as part of the death rite or Society professional staff in objects were removed during excavation ceremony. Lastly, officials of the consultation with representatives of the of a mound burial on Fox Island, Rest Milwaukee Public Museum have Omaha Tribe of Nebraska. Lake (47-VI-7), Manitowosh Waters determined that, pursuant to 43 CFR Prior to 1908, human remains Township, Vilas County, WI, by James 10.2 (e), there is a relationship of shared representing one individual, consisting G. Albright. The human remains and group identity that can be reasonably of a skull and mandible, were donated some (an unknown number) of the traced between these Native American to the Nebraska State Historical Society associated funerary objects were sold to human remains and associated funerary by U.S. Marshall J. H. Thrasher of the Wisconsin Natural History Society objects and the Lac du Flambeau Band Plattsmouth, NE. No known individual in 1902. The Wisconsin Natural History of Lake Superior Chippewa Indians. was identified. No associated funerary Society donated the remains and This notice has been sent to officials objects are present. associated funerary objects to the of the Lac du Flambeau Band of Lake Museum documentation that Milwaukee Public Museum the same Superior Chippewa Indians. describes the human remains as ‘‘skull year. Mr. Albright donated the Representatives of any other Indian tribe and lower jaw of an Indian (Omaha) remaining associated funerary objects to that believes itself to be culturally killed with a club in 1860’’ indicates the Milwaukee Public Museum in 1942. affiliated with these human remains and that the human remains are Native No known individuals were identified. associated funerary objects should American and culturally affiliated with The 20 associated funerary objects are a contact Dr. Alex Barker, Anthropology the Omaha Tribe. German silver brooch with engraved Section Head, Milwaukee Public In 1968, a burial ossuary was geometric designs, a broken porcelain Museum, 800 West Wells Street, discovered at Site 25TS12 during road saucer, fragments of a metal bucket that Milwaukee, WI 53233, telephone (414) construction in Thurston County, NE. originally contained a granulated 278-2786, before February 26, 2001. Human remains representing a substance (maple sugar?), half of a tin Repatriation of the human remains and minimum of five individuals were cup, birch bark wrappings, metal associated funerary objects to the Lac du recovered from the site by Nebraska fragments, glass beads, shell, wood Flambeau Band of Lake Superior State Historical Society archeologist fragments, wool cloth fragments, a horn Chippewa Indians may begin after that Gayle Carlson. With the exception of knife handle, a pocket mirror, two date if no additional claimants come one bone fragment, the human remains German silver bracelets with a piece of forward. were repatriated to the Omaha Tribe VerDate 11 that year. The bone fragment represents This notice has been sent to officials 17 associated funerary objects are 1 one individual and is in the possession of the Omaha Tribe of Nebraska. stone scraper, 10 limestone fragments, of the Nebraska State Historical Society. Representatives of any other Indian tribe and 6 animal bones. No known individual was identified. that believes itself to be culturally From cranial measurements, the The 21 associated funerary objects are affiliated with these human remains Nebraska State Historical Society has white quartzite debitage, red ochre should contact Rob Bozell, Associate determined that the individual is Native fragments, a shell bead, unmodified Director, Nebraska State Historical American and is culturally affiliated fresh water mussel shell fragments, and Society, 1500 R Street, P.O. Box 82554, with the Ponca. Historical records a polished fresh water mussel shell Lincoln, NE 68501–2554, telephone indicate that the Ponca hunted in the fragment. (402) 471–4789, before February 26, region and occasionally lived among the The manner of interment, material 2001. Repatriation of the human Pawnee, whose homeland includes culture, and the site location indicate remains and associated funerary objects Platte County. The specific attribution that the human remains are Native to the Omaha Tribe of Nebraska may of this individual as Ponca and not American and culturally affiliated with begin after that date if no additional Pawnee is based on statistical analysis the Omaha Tribe. claimants come forward. of cranial measurements compared with In 1970, human remains representing Dated: January 19, 2001. known populations of both tribes. a minimum of two individuals were In 1961, human remains representing recovered from Site 25AP32, Antelope John Robbins, Assistant Director, Cultural Resources one individual were uncovered during County, NE. Nebraska State Historical road construction in Knox County, NE. Society staff archaeologist Gayle Carlson Stewardship and Partnerships. [FR Doc. 01–2320 Filed 1–25–01; 8:45 am] The remains from site 25KX13 were collected material recovered by a private recovered by Nebraska State Historical individual who had notified the BILLING CODE 4310–70–F Society archeologist James Marshall and historical society of the site; Mr. Carlson were transferred to the Nebraska State also excavated material at the edge of Historical Society. No known individual earlier digging at Site 25AP32 by the DEPARTMENT OF THE INTERIOR was identified. No funerary objects are owner. No known individuals were present. identified. The 13 associated funerary National Park Service Oral history indicates that the objects are a French long arm Notice of Inventory Completion for individual is Native American and is escutcheon, a bison rib wrench, Native American Human Remains and culturally affiliated with the Ponca. sandstone shaft smoothers, a flake of Associated Funerary Objects in the chalcedony, a small grooved hammer, The remains from this site were Possession of the Nebraska State reported to the Nebraska State Historical silt stone, a blue glass bead, and a chert Historical Society, Lincoln, NE flake. Society by Ponca Chief Lea Peniska, who identified the remains as that of a Cranial measurements, material AGENCY: National Park Service. Ponca person. This portion of Knox culture, and site location indicate that ACTION: Notice. these human remains are Native County is historically the territory of the American and culturally affiliated with Notice is hereby given in accordance Ponca. Members of the Ponca tribes the Omaha Tribe. The remains of one with provisions of the Native American have indicated to the staff of the individual include approximately 80 Graves Protection and Repatriation Act Nebraska State Historical Society that bone fragments. The remains of the (NAGPRA), 43 CFR 10.9, of the Mr. Peniska was very knowledgeable second individual include completion of an inventory of human with regard to Ponca traditions and approximately 50 bone fragments and a remains and associated funerary objects burial locations. skull fragment. The two remains in the possession of the Nebraska State Between 1963 and 1980, human represent an individual male aged 40-49 Historical Society, Lincoln, NE. remains representing one individual years at death and a child aged 3.5-5 This notice is published as part of the were recovered by the University of years at death. National Park Service’s administrative South Dakota from previously looted Based on the above-mentioned responsibilities under NAGPRA, 43 CFR graves on a ridge called the Niobara information, officials of the Nebraska 10.2(c). The determinations within this Bridge, site 25KX207, in Knox County, State Historical Society have notice are the sole responsibility of the NE, and were transferred to the determined that, pursuant to 43 CFR museum, institution, or Federal agency Nebraska State Historical Society in 10.2 (d)(1), the human remains listed that has control of these Native 1989. The Nebraska State Historical above represent the physical remains of American human remains and Society also collected material from the four individuals of Native American associated funerary objects. The surface of the same site in 1980. No ancestry. Officials of the Nebraska State National Park Service is not responsible known individual was identified. The Historical Society also have determined for the determinations within this 247 associated funerary objects are that, pursuant to 43 CFR 10.2 (d)(2), the notice. modified and unmodified shell and 34 objects listed above are reasonably A detailed assessment of the human animal bone, ceramic sherds, glass believed to have been placed with or remains and associated funerary objects beads, stone tools, metal tools and near individual human remains at the was made by Nebraska State Historical ornaments, chipped stone debris, time of death or later as part of the death Society professional staff in ground stone tools, natural stone, ocher, rite or ceremony. Lastly, officials of the consultation with representatives of the and wood. Nebraska State Historical Society have Ponca Tribe of Nebraska and the Ponca Archeological evidence and historical determined that, pursuant to 43 CFR Tribe of Indians of Oklahoma. documentation indicates that the 10.2 (e), there is a relationship of shared In 1956, human remains representing individual is Native American and is group identity that can be reasonably one individual recovered from site culturally affiliated with the Ponca. traced between these Native American 25PT30 in Platte County, NE, were Based on the quantity of Euro-American human remains and associated funerary donated to the Nebraska State Historical trade goods, the site is dated to the post- objects and the Omaha Tribe of Society by a private individual. No contact period, and is located in the Nebraska. known individual was identified. The heart of territory inhabited exclusively VerDate 11 by the Ponca from the 1700’s to the Dated: January 19, 2001. with known Cheyenne populations, and 1870’s. John Robbins, historical documents and tribal In 1987, a private individual found Assistant Director, Cultural Resources traditions, which place the Cheyenne human remains representing one Stewardship and Partnerships. tribe in this territory during the mid- individual, a female of approximately [FR Doc. 01–2321 Filed 1–25–01; 8:45 am] and late 19th century, indicate that the 50 years of age, eroding from the bank BILLING CODE 4310–70–F human remains are culturally affiliated of Clear Creek, Butler County, NE. The with the Cheyenne-Arapaho Tribes of remains were transferred to the Oklahoma and the Northern Cheyenne Nebraska State Historical Society by the DEPARTMENT OF THE INTERIOR Tribe of the Northern Cheyenne Indian officials of the Butler County Extension Reservation, Montana. Office and the Butler County Sheriff’s National Park Service Based on the above-mentioned Office. No known individual was Notice of Inventory Completion for identified. The two associated funerary information, officials of the Nebraska Native American Human Remains and State Historical Society have objects include a mussel shell and a Associated Funerary Objects in the fragmented metal kettle or pail. determined that, pursuant to 43 CFR Possession of the Nebraska State 10.2 (d)(1), the human remains listed Cranial measurements indicate that Historical Society, Lincoln, NE the individual is Native American and above represent the physical remains of is culturally affiliated with the Ponca. AGENCY: National Park Service. one individual of Native American ancestry. Officials of the Nebraska State The site is near the Pawnee Linwood ACTION: Notice. site and the Ponca are known to have Historical Society also have determined lived here with the Pawnee in the 19th Notice is hereby given in accordance that, pursuant to 43 CFR 10.2 (d)(2), the century. The specific attribution of this with provisions of the Native American 636 objects listed above are reasonably individual as Ponca and not Pawnee is Graves Protection and Repatriation Act believed to have been placed with or based on statistical analysis of cranial (NAGPRA), 43 CFR 10.9, of the near individual human remains at the measurements compared with known completion of an inventory of human time of death or later as part of the death populations of both tribes. remains and associated funerary objects rite or ceremony. Lastly, officials of the Based on the above-mentioned in the possession of the Nebraska State Nebraska State Historical Society have information, officials of the Nebraska Historical Society, Lincoln, NE. determined that, pursuant to 43 CFR State Historical Society have This notice is published as part of the 10.2 (e), there is a relationship of shared determined that, pursuant to 43 CFR National Park Service’s administrative group identity that can be reasonably 10.2 (d)(1), the human remains listed responsibilities under NAGPRA, 43 CFR traced between these Native American above represent the physical remains of 10.2(c). The determinations within this human remains and associated funerary four individuals of Native American notice are the sole responsibility of the objects and the Cheyenne-Arapaho ancestry. Officials of the Nebraska State museum, institution, or Federal agency Tribes of Oklahoma and the Northern Historical Society also have determined that has control of these Native Cheyenne Tribe of the Northern that, pursuant to 43 CFR 10.2 (d)(2), the American human remains and Cheyenne Indian Reservation, Montana. 266 objects listed above are reasonably associated funerary objects. The This notice has been sent to officials believed to have been placed with or National Park Service is not responsible of the Cheyenne-Arapaho Tribes of near individual human remains at the for the determinations within this time of death or later as part of the death notice. Oklahoma; the Northern Cheyenne rite or ceremony. Lastly, officials of the A detailed assessment of the human Tribe of the Northern Cheyenne Indian Nebraska State Historical Society have remains and associated funerary objects Reservation, Montana; and the Rosebud determined that, pursuant to 43 CFR was made by Nebraska State Historical Sioux Tribe of the Rosebud Indian 10.2 (e), there is a relationship of shared Society professional staff in Reservation, South Dakota. group identity that can be reasonably consultation with representatives of the Representatives of any other Indian tribe traced between these Native American Cheyenne-Arapaho Tribes of Oklahoma; that believes itself to be culturally human remains and associated funerary the Northern Cheyenne Tribe of the affiliated with these human remains objects and the Ponca Tribe of Nebraska Northern Cheyenne Indian Reservation, should contact Rob Bozell, Associate and the Ponca Tribe of Indians of Montana; and the Rosebud Sioux Tribe Director, Nebraska State Historical Oklahoma. of the Rosebud Indian Reservation, Society, 1500 R Street, P.O. Box 82554, This notice has been sent to officials South Dakota. Lincoln, NE 68501–2554, telephone of the Ponca Tribe of Nebraska and the In 1992, human remains representing (402) 471–4789, before February 26, Ponca Tribe of Indians of Oklahoma. one individual were recovered from site 2001. Repatriation of the human Representatives of any other Indian tribe 25DW211, Dawes County, NE, by remains and associated funerary objects that believes itself to be culturally Nebraska State Historical Society staff to the Cheyenne-Arapaho Tribes of affiliated with these human remains archeologist Terry Steinacher at the Oklahoma and the Northern Cheyenne should contact Rob Bozell, Associate request of the landowner. No known Tribe of the Northern Cheyenne Indian Director, Nebraska State Historical individual was identified. The 636 Reservation, Montana may begin after Society, 1500 R Street, P.O. Box 82554, associated funerary objects are glass that date if no additional claimants Lincoln, NE 68501–2554, telephone beads, leather fragments, buttons, tin come forward. (402) 471–4789, before February 26, can fragments, and a comb. Dated: January 19, 2001. 2001. Repatriation of the human From archeological evidence and remains and associated funerary objects skeletal morphology, the Nebraska State John Robbins, to the Ponca Tribe of Nebraska and the Historical Society has determined that Assistant Director, Cultural Resources Ponca Tribe of Indians of Oklahoma the individual is Native American from Stewardship and Partnerships. may begin after that date if no the 19th century. Cranial measurements [FR Doc. 01–2322 Filed 1–25–01; 8:45 am] additional claimants come forward. of the individual, which are consistent BILLING CODE 4310–70–F VerDate 11 DEPARTMENT OF THE INTERIOR Italy and/or the antidumping duty order Limited disclosure of business on oil country tubular goods from proprietary information (BPI) under an National Park Service Argentina, Italy, Japan, Korea, and administrative protective order (APO) Mexico would be likely to lead to and BPI service list.—Pursuant to Availability of Plan of Operations and continuation or recurrence of material section 207.7(a) of the Commission’s Supplement to Environmental injury within a reasonably foreseeable rules, the Secretary will make BPI Assessment for Well Plugging and time. For further information gathered in these reviews available to Removal of Oil and Gas Production concerning the conduct of these reviews authorized applicants under the APO Equipment; Merit Energy Company, and rules of general application, consult issued in the reviews, provided that the Big Thicket National Preserve, Hardin the Commission’s Rules of Practice and application is made by 45 days after County, Texas Procedure, part 201, subparts A through publication of this notice. Authorized Notice is hereby given in accordance E (19 CFR part 201), and part 207, applicants must represent interested with section 9.52(b) of Title 36 of the subparts A, D, E, and F (19 CFR part parties, as defined by 19 U.S.C. 1677(9), code of Federal Regulations, Part 9, 207). who are parties to the reviews. A party granted access to BPI following Subpart B, that the National Park EFFECTIVE DATE: January 23, 2001. Service has accepted a Plan of publication of the Commission’s notice FOR FURTHER INFORMATION CONTACT: Operations from Merit Energy Company of institution of the reviews need not Elizabeth Haines (202–205–3200), Office for Well Plugging and Removal of Oil reapply for such access. A separate of Investigations, U.S. International and Gas Production Equipment in Big service list will be maintained by the Trade Commission, 500 E Street SW., Thicket National Preserve, Hardin Secretary for those parties authorized to Washington, DC 20436. Hearing- County, Texas. receive BPI under the APO. The Plan of Operations and impaired persons can obtain Staff report.—The prehearing staff corresponding Supplement to the information on this matter by contacting report in the reviews will be placed in Environmental Assessment are available the Commission’s TDD terminal on 202– the nonpublic record on April 18, 2001, for public review and comment for a 205–1810. Persons with mobility and a public version will be issued period of 30 days from the publication impairments who will need special thereafter, pursuant to section 207.64 of the Commission’s rules. date of this notice. Both documents can assistance in gaining access to the Hearing.—The Commission will hold be viewed during normal business hours Commission should contact the Office of the Secretary at 202–205–2000. a hearing in connection with the at the Office of the Superintendent, Big reviews beginning at 9:30 a.m. on May Thicket National Preserve, 3785 Milam General information concerning the Commission may also be obtained by 8, 2001, at the U.S. International Trade Street, Beaumont, Texas. Copies can be Commission Building. Requests to requested from the Superintendent, Big accessing its internet server (http:// www.usitc.gov). appear at the hearing should be filed in Thicket National Preserve, 3785 Milam writing with the Secretary to the Street, Beaumont, TX 77701. SUPPLEMENTARY INFORMATION: Commission on or before April 30, 2001. Dated: January 12, 2001. Background.—On October 5, 2000, A nonparty who has testimony that may Lila L. Walker, the Commission determined that aid the Commission’s deliberations may responses to its notice of institution of Superintendent, Acting, Big Thicket National request permission to present a short Preserve. the subject five-year reviews were such statement at the hearing. All parties and that full reviews pursuant to section [FR Doc. 01–2349 Filed 1–25–01; 8:45 am] nonparties desiring to appear at the 751(c)(5) of the Act should proceed (65 BILLING CODE 4310–70–M hearing and make oral presentations FR 63889, October 25, 2000). A record should attend a prehearing conference of the Commissioners’ votes, the to be held at 9:30 a.m. on May 3, 2001, Commission’s statement on adequacy, at the U.S. International Trade INTERNATIONAL TRADE and any individual Commissioner’s COMMISSION Commission Building. Oral testimony statements are available from the Office and written materials to be submitted at [Investigations Nos. 701–TA–364 (Review) of the Secretary and at the the public hearing are governed by and 731–TA–711 and 713–716 (Review)] Commission’s web site. sections 201.6(b)(2), 201.13(f), 207.24, Participation in the reviews and and 207.66 of the Commission’s rules. Oil Country Tubular Goods From public service list.—Persons, including Parties must submit any request to Argentina, Italy, Japan, Korea, and industrial users of the subject present a portion of their hearing Mexico merchandise and, if the merchandise is testimony in camera no later than 7 AGENCY: United States International sold at the retail level, representative days prior to the date of the hearing. Trade Commission. consumer organizations, wishing to Written submissions.—Each party to ACTION: Scheduling of full five-year participate in these reviews as parties the reviews may submit a prehearing reviews concerning the countervailing must file an entry of appearance with brief to the Commission. Prehearing duty order on oil country tubular goods the Secretary to the Commission, as briefs must conform with the provisions from Italy and the antidumping duty provided in section 201.11 of the of section 207.65 of the Commission’s order on oil country tubular goods from Commission’s rules, by 45 days after rules; the deadline for filing is April 27, Argentina, Italy, Japan, Korea, and publication of this notice. A party that 2001. Parties may also file written Mexico. filed a notice of appearance following testimony in connection with their publication of the Commission’s notice presentation at the hearing, as provided SUMMARY: The Commission hereby gives of institution of the reviews need not in section 207.24 of the Commission’s notice of the scheduling of full reviews file an additional notice of appearance. rules, and posthearing briefs, which pursuant to section 751(c)(5) of the The Secretary will maintain a public must conform with the provisions of Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) service list containing the names and section 207.67 of the Commission’s (the Act) to determine whether addresses of all persons, or their rules. The deadline for filing revocation of the countervailing duty representatives, who are parties to the posthearing briefs is May 17, 2001; order on oil country tubular goods from reviews. witness testimony must be filed no later VerDate 11 than three days before the hearing. In determine whether an industry in the to the Commission, as provided in addition, any person who has not United States is materially injured or section 201.11 of the Commission’s entered an appearance as a party to the threatened with material injury, or the rules, no later than 21 days prior to the reviews may submit a written statement establishment of an industry in the hearing date specified in this notice. A of information pertinent to the subject of United States is materially retarded, by party that filed a notice of appearance the review on or before May 17, 2001. reason of less-than-fair-value imports during the preliminary phase of the On June 6, 2001, the Commission will from Japan, Korea, and Spain of investigations need not file an make available to parties all information stainless steel angle, provided for in additional notice of appearance during on which they have not had an subheading 7222.40.30 of the this final phase. The Secretary will opportunity to comment. Parties may Harmonized Tariff Schedule of the maintain a public service list containing submit final comments on this United States.1 the names and addresses of all persons, information on or before June 8, 2001, For further information concerning or their representatives, who are parties but such final comments must not the conduct of this phase of the to the investigations. contain new factual information and investigations, hearing procedures, and Limited disclosure of business must otherwise comply with section rules of general application, consult the proprietary information (BPI) under an 207.68 of the Commission’s rules. All Commission’s Rules of Practice and administrative protective order (APO) written submissions must conform with Procedure, part 201, subparts A through and BPI service list.—Pursuant to the provisions of section 201.8 of the E (19 CFR part 201), and part 207, section 207.7(a) of the Commission’s Commission’s rules; any submissions subparts A and C (19 CFR part 207). rules, the Secretary will make BPI that contain BPI must also conform with EFFECTIVE DATE: January 12, 2001. gathered in the final phase of these the requirements of sections 201.6, FOR FURTHER INFORMATION CONTACT: investigations available to authorized 207.3, and 207.7 of the Commission’s Brian R. Allen (202–708–4728), Office of applicants under the APO issued in the rules. The Commission’s rules do not Investigations, U.S. International Trade investigations, provided that the authorize filing of submissions with the Commission, 500 E Street SW., application is made no later than 21 Secretary by facsimile or electronic Washington, DC 20436. Hearing- days prior to the hearing date specified means. impaired persons can obtain in this notice. Authorized applicants In accordance with sections 201.16(c) information on this matter by contacting must represent interested parties, as and 207.3 of the Commission’s rules, the Commission’s TDD terminal on 202– defined by 19 U.S.C. 1677(9), who are each document filed by a party to the 205–1810. Persons with mobility parties to the investigations. A party reviews must be served on all other impairments who will need special granted access to BPI in the preliminary parties to the reviews (as identified by assistance in gaining access to the phase of the investigations need not either the public or BPI service list), and Commission should contact the Office reapply for such access. A separate a certificate of service must be timely of the Secretary at 202–205–2000. service list will be maintained by the filed. The Secretary will not accept a General information concerning the Secretary for those parties authorized to document for filing without a certificate Commission may also be obtained by receive BPI under the APO. Staff report.—The prehearing staff of service. accessing its internet server (http:// report in the final phase of these www.usitc.gov). Authority: These reviews are being investigations will be placed in the conducted under authority of title VII of the SUPPLEMENTARY INFORMATION: nonpublic record on March 14, 2001, Tariff Act of 1930; this notice is published Background.—The final phase of these and a public version will be issued pursuant to section 207.62 of the investigations is being scheduled as a thereafter, pursuant to section 207.22 of Commission’s rules. result of affirmative preliminary the Commission’s rules. By order of the Commission. determinations by the Department of Hearing.—The Commission will hold Issued: January 23, 2001. Commerce that imports of stainless steel a hearing in connection with the final Donna R. Koehnke, angle from Japan, Korea, and Spain are phase of these investigations beginning Secretary. being sold in the United States at less at 9:30 a.m. on March 27, 2001, at the [FR Doc. 01–2406 Filed 1–25–01; 8:45 am] than fair value within the meaning of U.S. International Trade Commission BILLING CODE 7020–02–P section 733 of the Act (19 U.S.C. 1673b). Building. Requests to appear at the The investigations were requested in a hearing should be filed in writing with petition filed on August 18, 2000 by the Secretary to the Commission on or INTERNATIONAL TRADE Slater Steels Corporation, Specialty before March 19, 2001. A nonparty who COMMISSION Alloys Division, Fort Wayne, IN, and has testimony that may aid the the United Steelworkers of America, Commission’s deliberations may request [Investigations Nos. 731–TA–888–890 AFL–CIO/CLC, Pittsburgh, PA. permission to present a short statement (Final)] Participation in the investigations and at the hearing. All parties and Stainless Steel Angle From Japan, public service list.—Persons, including nonparties desiring to appear at the Korea, and Spain industrial users of the subject hearing and make oral presentations merchandise and, if the merchandise is should attend a prehearing conference AGENCY: United States International sold at the retail level, representative to be held at 9:30 a.m. on March 22, Trade Commission. consumer organizations, wishing to 2001, at the U.S. International Trade ACTION: Scheduling of the final phase of participate in the final phase of these Commission Building. Oral testimony antidumping investigations. investigations as parties must file an and written materials to be submitted at entry of appearance with the Secretary the public hearing are governed by SUMMARY: The Commission hereby gives sections 201.6(b)(2), 201.13(f), and notice of the scheduling of the final 1 For purposes of these investigations, Commerce 207.24 of the Commission’s rules. phase of antidumping investigations has defined the subject merchandise as stainless Parties must submit any request to steel angle that ‘‘includes hot rolled, whether or not Nos. 731–TA–888–890 (Final) under annealed or descaled, stainless steel products of present a portion of their hearing section 735(b) of the Tariff Act of 1930 equal leg length angled at 90 degrees that are not testimony in camera no later than 7 days (19 U.S.C. § 1673d(b)) (the Act) to otherwise advanced.’’ prior to the date of the hearing. VerDate 11 Written submissions.—Each party DEPARTMENT OF JUSTICE (3) The agency form number, if any, who is an interested party shall submit and applicable component of the a prehearing brief to the Commission. Federal Bureau of Investigation Department Sponsoring the collection: Prehearing briefs must conform with the Form I–704. Federal Bureau of Criminal Justice Information Services provisions of section 207.23 of the Investigation, Department of Justice. (CJIS) Division; Agency Information Commission’s rules; the deadline for (4) Affected public who will be asked Collection Activities: Proposed or required to respond, as well as brief filing is March 21, 2001. Parties may Collection: Comment Request also file written testimony in connection abstract. Primary: Local and State law enforcement agencies. These reports with their presentation at the hearing, as ACTION: Notice of Information Collection will gather information on age, sex, race, provided in section 207.24 of the Under Review: SUPPLEMENTARY ethnic origin and relationship of murder Commission’s rules, and posthearing HOMICIDE REPORT. victims; the weapon and motive. briefs, which must conform with the Summary statistics are published in the provisions of section 207.25 of the The proposed information collection is published to obtain comments from annual report Crime in the United Commission’s rules. The deadline for States. filing posthearing briefs is April 3, 2001; the public and affected agencies. Comments are encouraged and will be (5) An estimate of the total number of witness testimony must be filed no later respondents and the amount of time than three days before the hearing. In accepted until March 27, 2001. Request written comments and estimated for an average respondent to addition, any person who has not suggestions from the public and affected respond: 16,788 agencies with 201,456 entered an appearance as a party to the agencies concerning the proposed responses (including zero reports); and investigations may submit a written collection of information. Comments with an average of 9 minutes a month statement of information pertinent to should address one or more of the per responding agency. (6) An estimate of the total public the subject of the investigations on or following four points: burden (in hours) associated with this before April 3, 2001. On April 26, 2001, (1) Evaluate whether the proposed collection: 30,218 hours annually. the Commission will make available to collection of information is necessary parties all information on which they If additional information is required for the proper performance of the contact: Mr. Robert B. Briggs, Clearance have not had an opportunity to functions of the agency, including comment. Parties may submit final Officer, United States Department of whether the information will have Justice, Information Management and comments on this information on or practical utility; Security Staff, Justice Management before April 30, 2001, but such final (2) Evaluate the accuracy of the Division, Suite 850, Washington Center, comments must not contain new factual agencies estimate of the burden of the 1001 G Street, NW., Washington, DC information and must otherwise comply proposed collection of information, 20530. with section 207.30 of the Commission’s including the validity of the rules. All written submissions must methodology and assumptions used; Dated: January 22, 2001. conform with the provisions of section (3) Enhance the quality, utility, and Robert B. Briggs, 201.8 of the Commission’s rules; any clarity of the information to be Department Clearance Officer, United States submissions that contain BPI must also collected; and Department of Justice. conform with the requirements of (4) Minimize the burden of the [FR Doc. 01–2364 Filed 1–25–01; 8:45 am] sections 201.6, 207.3, and 207.7 of the collection of information on those who BILLING CODE 4410–02–M Commission’s rules. The Commission’s are to respond, including through the rules do not authorize filing of use of appropriate automated, submissions with the Secretary by electronic, mechanical, or other DEPARTMENT OF LABOR facsimile or electronic means. technological collection techniques of other forms of information technology, Employment Standards In accordance with sections 201.16(c) e.g., permitting electronic submission of Administration, Wage and Hour and 207.3 of the Commission’s rules, responses. Division each document filed by a party to the Comments and/or suggestions Minimum Wages for Federal and investigations must be served on all regarding the item(s) contained in this Federally Assisted Construction; other parties to the investigations (as notice, especially regarding the General Wage Determination Decisions identified by either the public or BPI estimated public burden and associated service list), and a certificate of service response time should be directed to General wage determination decisions must be timely filed. The Secretary will Gregory E. Scarbro (phone number and of the Secretary of Labor are issued in not accept a document for filing without address listed below). Additional accordance with applicable law and are a certificate of service. information as well as copies of the based on the information obtained by proposed information collection Authority: These investigations are being the Department of Labor from its study instrument with instructions are conducted under authority of title VII of the of local wage conditions and data made available by contacting Gregory E. Tariff Act of 1930; this notice is published available from other sources. They Scarbro, Unit Chief, telephone 304–625– pursuant to section 207.21 of the specify the basic hourly wage rates and Commission’s rules. 4830, FBI, CJIS Division, Crime fringe benefits which are determined to Statistics Management Unit, E–3, 1000 be prevailing for the described classes of By order of the Commission. Custer Hollow Road, Clarksburg, WV laborers and mechanics employed on Issued: January 23, 2001. 26306. construction projects of a similar Donna R. Koehnke, Overview of this information character and in the localities specified Secretary. collection: therein. (1) Type of information collection: The determinations in these decisions [FR Doc. 01–2407 Filed 1–25–01; 8:45 am] Extension of Current Collection. of prevailing rates and fringe benefits BILLING CODE 7020–02–P (2) The title of the form/collection: have been made in accordance with 29 Supplementary Homicide Report. CFR part 1, by authority of the Secretary VerDate 11 of Labor pursuant to the provisions of Employment Standards Administration, State. Subscriptions include an annual the Davis-Bacon Act of March 3, 1931, Wage and Hour Division, Division of edition (issued in January or February) as amended (46 Stat. 1494, as amended, Wage Determinations, 200 Constitution which includes all current general wage 40 U.S.C. 276a) and of other Federal Avenue, NW., Room S–3014, determinations for the States covered by statutes referred to in 29 CFR part 1, Washington, DC 20210. each volume. Throughout the remainder Appendix, as well as such additional of the year, regular weekly updates are Modifications to General Wage statutes as may from time to time be distributed to subscribers. Determination Decisions enacted containing provisions for the Signed at Washington, D.C. this 18th day payment of wages determined to be The number of decisions listed in the of January, 2001. Government Printing Office document prevailing by the Secretary of Labor in Carl J. Poleskey, accordance with the Davis-Bacon Act. entitled ‘‘General Wage Determinations Issued Under the Davis-Bacon and Chief, Branch of Construction Wage The prevailing rates and fringe benefits Determinations. determined in these decisions shall, in related Acts’’ being modified are listed accordance with the provisions of the by Volume and State. Dates of [FR Doc. 01–2164 Filed 1–25–01; 8:45 am] foregoing statutes, constitute the publication in the Federal Register are BILLING CODE 4510–27–M minimum wages payable on Federal and in parentheses following the decisions federally assisted construction projects being modified. to laborers and mechanics of the NATIONAL FOUNDATION ON THE specified classes engaged on contract Volume I ARTS AND THE HUMANITIES work of the character and in the None. localities described therein. Volume II Meetings of Humanities Panel Good cause is hereby found for not None. utilizing notice and public comment AGENCY: The National Endowment for procedure thereon prior to the issuance Volume III the Humanities. of these determinations as prescribed in None. ACTION: Notice of meetings. 5 U.S.C. 553 and not providing for delay Volume IV in the effective date as prescribed in that SUMMARY: Pursuant to the provisions of section, because the necessity to issue None. the Federal Advisory Committee Act current construction industry wage Volume V (Public Law 92–463, as amended), determinations frequently and in large None. notice is hereby given that the following volume causes procedures to be meetings of the Humanities Panel will impractical and contrary to the public Volume VI be held at the Old Post Office, 1100 interest. None. Pennsylvania Avenue, NW., General wage determination Volume VII Washington, DC 20506. decisions, and modifications and FOR FURTHER INFORMATION CONTACT: supersedes decisions thereto, contain no None. Laura S. Nelson, Advisory Committee expiration dates and are effective from Management Officer, National their date of notice in the Federal General Wage Determination Endowment for the Humanities, Register, or on the date written notice Publication Washington, DC 20506; telephone (202) is received by the agency, whichever is General wage determinations issued 606–8322. Hearing-impaired individuals earlier. These decisions are to be used under the Davis-Bacon and related Acts, are advised that information on this in accordance with the provisions of 29 including those noted above, may be matter may be obtained by contacting CFR parts 1 and 5. Accordingly, the found in the Government Printing Office the Endowment’s TDD terminal on (202) applicable decision, together with any (GPO) document entitled ‘‘General Wage 606–8282. modifications issued, must be made a Determinations Issued Under The Davis- part of every contract for performance of Bacon and Related Acts.’’ This SUPPLEMENTARY INFORMATION: The the described work within the publication is available at each of the 50 proposed meetings are for the purpose geographic area indicated as required by Regional Government Depository of panel review, discussion, evaluation an applicable Federal prevailing wage Libraries and many of the 1,400 and recommendation on applications law and 29 CFR part 5. The wage rates Government Depository Libraries across for financial assistance under the and fringe benefits, notice of which is the country. National Foundation on the Arts and the published herein, and which are The general wage determinations Humanities Act of 1965, as amended, contained in the Government Printing issued under the Davis-Bacon and including discussion of information Office (GPO) document entitled related Acts are available electronically given in confidence to the agency by the ‘‘General Wage Determinations Issued by subscription to the FedWorld grant applicants. Because the proposed Under The Davis-Bacon And Related Bulletin Board System of the National meetings will consider information that Acts,’’ shall be the minimum paid by Technical Information Service (NTIS) of is likely to disclose trade secrets and contractors and subcontractors to the U.S. Department of Commerce at 1– commercial or financial information laborers and mechanics. 800–363–2068. obtained from a person and privileged Any person, organization, or Hard-copy subscriptions may be or confidential and/or information of a governmental agency having an interest purchased from: Superintendent of personal nature the disclosure of which in the rates determined as prevailing is Documents, U.S. Government Printing would constitute a clearly unwarranted encouraged to submit wage rate and Office, Washington, D.C. 20402, (202) invasion of personal privacy, pursuant fringe benefit information for 512–1800. to authority granted me by the consideration by the Department. When ordering hard-copy Chairman’s Delegation of Authority to Further information and self- subscription(s), be sure to specify the Close Advisory Committee meetings, explanatory forms for the purpose of State(s) of interest, since subscriptions dated July 19, 1993, I have determined submitting this data may be obtained by may be ordered for any or all of the that these meetings will be closed to the writing to the U.S. Department of Labor, seven separate volumes, arranged by public pursuant to subsections (c)(4), VerDate 11 and (6) of section 552b of Title 5, United Dated at Rockville, Maryland, this 18th day (l) Specialist Shall Not Be Options States Code. of January, 2001. Market-Maker 1. Date: February 1, 2001. L. Raghavan, Except as provided below, [N]no Time: 9:00 a.m. to 5:00 p.m. Senior Project Manager, Section 2, Project Directorate IV & Decommissioning, Division equity specialist, his member Room: 415. of Licensing Project Management, Office of organization, other member, allied Program: This meeting will review Nuclear Reactor Regulation. member or approved person in such applications for Library and Archival [FR Doc. 01–2373 Filed 1–25–01; 8:45 am] member organization or officer or Preservation and Access/Reference BILLING CODE 7590–01–P employee thereof shall act as an options Materials, submitted to the Division of market-maker or option specialist, or Preservation and Access at the January function in any capacity involving 5, 2001 deadline. SECURITIES AND EXCHANGE market-making responsibilities, in any Laura S. Nelson, COMMISSION option as to which the underlying Advisory Committee Management Officer. [Release No. 34–43859; File No. SR–NYSE– security is a stock in which the 00–62] [FR Doc. 01–2404 Filed 1–25–01; 8:45 am] specialist is registered as such. BILLING CODE 7536–01–M Self-Regulatory Organizations; Notice Notwithstanding the above, an of Filing Proposed Rule Change by the approvedperson is so ating as an New York Stock Exchange, Inc. options market maker pursuant to this Relating to Specialists’ Specialty Stock paragraph, neither that approved NUCLEAR REGULATORY Option Transactions person of an equity specialist entitled to COMMISSION an exemption from this rule under Rule January 18, 2001 98 may act as a competitive market Pursuant to Section 19(b)(1) of the [Docket Nos. 50–361 and 50–362] maker, competitive options trader, Securities Exchange Act of 1934 registered options trader, or in a similar Southern California Edison Company, (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 San Onofre Nuclear Generating notice is hereby given that on December non-primary market-making capacity in Station, Units 2 and 3; Notice of 22, 2000, the New York Stock Exchange, any option as to which the underlying Withdrawal of Application for Inc. (‘‘NYSE’’ or ‘‘Exchange’’) filed with security is a stock in which the Amendments to Facility Operating the Securities and Exchange associated specialist is registered as Licenses Commission (‘‘SEC’’ or ‘‘Commission’’) such; provided, however, that if an the proposed rule change as described approved person is so acting as an The U.S. Nuclear Regulatory in Items I, II, and III below, which Items options market maker pursuant to this Commission (the Commission) has have been prepared by the Exchange. paragraph, neither that approved granted the request of Southern The Commission is publishing this person, nor any other approved person California Edison (licensee) to withdraw notice to solicit comments on the of the specialist, may act as a market its January 19, 2000, application, for proposed rule change from interested maker in any equity security in which proposed amendments to Facility persons. the associated specialist is registered as Operating Licenses No. NPF–10 and such and which underlies an option as NPF–15 for the San Onofre Nuclear I. Self-Regulatory Organization’s to which the approved person acts as an Generating Station, Units 2 and 3 Statement of the Terms of Substance of options market maker.3 respectively, located in San Diego the Proposed Rule Change County, California. The Exchange proposes to amend * * * * * The proposed amendments would paragraph (l) of the Guidelines to NYSE have modified facility Technical Rule 105 and paragraph (a) of NYSE Rule 98. Restrictions on Approved Specification Surveillance Requirement Rule 98. These proposed amendments Person Associated With a Specialists’ 3.0.3. permit an NYSE Rule 98 approved Member Organization The Commission had previously person of a specialist to act as (a) So long as paragraph (b) of this issued a Notice of Consideration of competitive market maker or perform Rule is complied with, (i) each other similar non-primary/supplemental Issuance of Amendment published in specialist within a member organization market-making activities in any option the Federal Register on April 19, 2000 that is associated with an approved (65 FR 21038). However, by letter dated as to which the underlying security is a stock in which the related specialist is person shall be exempt from the January 4, 2001, the licensee withdrew provisions of Rule 104 and 104.13 as the proposed change. registered. Below is the text of the proposed rule they relate to such approved person, For further details with respect to this change. Proposed new language is and (ii) the approved person that is action, see the application for italicized and proposed deletions are in associated with such member amendments dated January 19, 2000, brackets. organization shall be exempt from (A) and the licensee’s letter dated January 4, the restrictions on trading in specialty 2001, which withdrew the application * * * * * stock options as provided by Rule 105 for license amendments. These Rule 105. Specialists’ Interest in Pools and on acting as an options market documents may be examined, and/or and Options copied for a fee, at the NRC’s Public maker as provided in paragraph (l) of Document Room, located at One White * * * * * the Rule 105 Guidelines, (B) the Flint North, 11555 Rockville Pike (first Guidelines for Specialists’ Speciality floor), Rockville, Maryland. Publicly Stock Options Transactions Pursuant to 3 Minor technical corrections have been made to available records will be accessible Rule 105 (a) Through (k)—No change the rule text. The NYSE will file an amendment electronically from the ADAMS Public * * * * * indicating these changes to the rule text. Telephone Library component on the NRC Web site conversation between Jeff Rosenstrock, Esquire, (the Electronic Reading Room). Senior Project Specialist, Rule Development, NYSE, 1 15 U.S.C. 78s(b)(1). and Sapna C. Patel, Attorney, Division of Market For the Nuclear Regulatory Commission. 2 17 CFR 240.19b–4. Regulation, Commission, on January 16, 2001. VerDate 11 provisions of Rule 113(a) and the registered. This prohibition applies to statement to the Exchange describing prohibition against ‘‘popularizing’’ as all approved persons of specialists, the internal controls they intend to provided by Rule 113.20, provided, that including those who are otherwise adopt for the establishment of the disclosures specified in that Rule are exempt from specific specialist rules procedures sufficient to restrict the flow made, and (C) the provisions of Rule pursuant to NYSE Rule 98. of privileged information between the 460, except as specified therein. The prohibitions were intended to approved person and the associated (b) In order to obtain the exemptions address potential conflict-of-interest specialist organization. The procedures referred to in paragraph (a) above, the concerns raised by the possibility of are intended to preclude the possibility approved person and the specialist side-by-side stock and options trading that privileged information will be made member organization with which such by a specialist and a specialist affiliate. available to be used in any way to approved person is to be associated The prohibitions were adopted in the influence a particular trading decision shall be required to obtain the prior early 1980s when options were not by a specialist in the associated written agreement of the Exchange that listed and traded on more than one specialist organization, or vice versa. such approved person and such member exchange as they are today.4 These internal control and procedures organization are in compliance with the The Exchange therefore proposes to would apply in situations where an ‘‘Guidelines for Approved Persons amend paragraph (l) of the NYSE Rule NYSE Rule 98 approved person Associated with a Specialist’s Member 105 Guidelines and paragraph (a) of intended to act as a non-primary market Organization’’ as promulgated by the NYSE Rule 98 to permit NYSE Rule 98 maker in an option. Exchange and as may be amended from approved persons of specialists to act as time to time. non-primary options market makers in Proposed Changes to Paragraph (l) of (c) Whenever the approved person options overlying securities in which an NYSE Rule 105 Guidelines controls, is controlled by, or is under affiliated specialist is registered. The Exchange proposes to amend common control with, a person, other paragraph (l) of the NYSE Rule 105 than the member organization with NYSE Rule 98 Approved Person Guidelines to permit an NYSE Rule 98 which it is associated, the exemptions Under Exchange rules, a person or approved person of a specialist to act as provided in paragraph (a) above shall be entity entering into any type of control a competitive market maker or perform available only so long as the approved relationship with a member other similar non-primary/supplemental person and its associated member organization may be deemed to be an market-making activities in any option organization have satisfied the Exchange approved person of the member as to which the underlying security is a that the relationship between the organization.5 The term ‘‘approved stock in which the related specialist is approved person, the member person’’ refers to an individual or entity registered. The prohibition on acting as organization and such other person that controls a member organization, or a primary market maker would be satisfies all of the conditions specified is engaged in the securities business and retained. in the ‘‘Guidelines.’’ is either controlled by or is under The difference in treatment between * * * * * common control with a member primary market makers and competitive organization. Approved persons of (or non-primary) market makers stems II. Self-Regulatory Organization’s specialist member organizations are from their differing obligations on the Statement of the Purpose of, and subject to a number of Exchange rules options exchanges. On the various Statutory Basis for, the Proposed Rule (including NYSE Rule 105) that place options exchanges, primary market Change restrictions on their ability to trade in makers (‘‘PMMs’’), also called the specialty stocks of the related Designated Primary Market Makers In its filing with the Commission, the (‘‘DPMs’’), Lead Market Makers Exchange included statements specialist. NYSE Rule 98 provides exemptive relief for an approved person (‘‘LMMs’’), and Registered Equity concerning the purpose of and basis for Market Makers, similar to specialists on the proposed rule change and discussed associated with a specialist’s member organization that complies with the the Exchange, are market makers with any comments it received on the significant responsibilities, including proposed rule change. The text of these NYSE Rule 98 implementing guidelines. Paragraph (a) of NYSE Rule 98 is overseeing the opening and closing of statements may be examined at the proposed to be amended to permit an trading in option classes, and providing places specified in Item IV below. The NYSE Rule 98 approved person to act in continuous, two-sided quotations in all Exchange has prepared summaries, set a non-primary market-making capacity of their assigned stock options. forth in sections A, B, and C below, of in an option overlying a security in Competitive Market Makers (‘‘CMMs’’), the most significant aspects of such which an associated specialist is also called competitive options traders, statements. registered.6 In order to meet the test for registered options traders and non- A. Self-Regulatory Organization’s an NYSE Rule 98 approved person and primary market makers, are market Statement of the Purpose of, and obtain exemptive relief, an approved makers who quote independently and Statutory Basis for the Proposed Rule person and an associated specialist add depth and liquidity to the market, Change organization must submit a written but do not have the primary responsibility to maintain a fair and 1. Purpose 4 See Securities Exchange Act Release No. 21710 orderly market. Currently, paragraph (l) of the (February 4, 1985), 50 FR 5708 (February 11, 1985) The Exchange believes that potential Guidelines to NYSE Rule 105 prohibits (approving SR–NYSE–82–2). conflicts of interest with respect to stock Exchange specialists and approved 5 NYSE Rule 2 defines control as the power to and options trading are somewhat less direct or cause the direction of the management or persons of an Exchange specialist from policies of a person whether through ownership of significant with respect to acting as an options market maker or securities, by contract or otherwise. A presumption supplemental, as opposed to primary, options specialist, or from functioning of control is made in certain circumstances outlined options market-making, and in any in any capacity involving market- in the rule. event the Exchange believes that they 6 The distinction between primary and non- making responsibilities in any option as primary market makers for purposes of the are effectively addressed by NYSE Rule to which the underlying security is a proposed rule change is described more fully 98’s requirement that material market stock in which the specialist is below. information be kept strictly segregated. VerDate 11 The Exchange also proposes to amend III. Date of Effectiveness of the SECURITIES AND EXCHANGE paragraph (l) of the NYSE Rule 105 Proposed Rule Change and Timing for COMMISSION Guidelines by adding the following Commission Action additional restriction: if an NYSE Rule [Release No. 34–43864; International Series 98 approved person is acting as an Within 35 days of the date of Release No. 1245; File No. SR–Phlx–01–06] options market maker in an option publication of this notice in the Federal Register or within such longer period (i) Self-Regulatory Organizations; Notice overlying a specialty stock, neither it, of Filing of Proposed Rule Change by as the Commission may designate up to nor any other approved person of the the Philadelphia Stock Exchange, Inc. 90 days of such date if it finds such specialist, may act as a market maker in To Amend Rule 1063(a) and Options longer period to be appropriate and any speciality stock underlying an Floor Procedure Advices A–10 and C– option as to which the NYSE Rule 98 publishes its reasons for so finding or 1, Relating to Trading in Foreign approved person acts as an options (ii) as to which the Exchange consents, Currency Options market maker. The Exchange believes the Commission will: that this restriction will ensure that (A) By order approve such proposed January 19, 2001. market information gleaned from the rule change, or Pursuant to section 19(b)(1) of the options market is not used to gain Securities Exchange Act of 1934 (B) Institute proceedings to determine 1 2 trading advantages by approved persons whether the proposed rule change (‘‘Act’’) and Rule 19b–4 thereunder, notice is hereby given that on January of the specialist in other equity markets. should be disapproved. The potential for manipulative activity 11, 2001, the Philadelphia Stock resulting from the market maker’s IV. Solicitation of Comments Exchange, Inc. (‘‘Phlx’’) filed with the unique informational advantage of Securities and Exchange Commission seeing ‘‘the book’’ of both a stock and Interested persons are invited to (‘‘Commission’’) the proposed rule its underlying option should be submit written data, views and change as described in Items I, II, and substantially lessened; the proposed arguments concerning the foregoing, III below, which Items have been additional restriction would prevent a including whether the proposed rule prepared by the Phlx. The Commission non-primary market maker in the change is consistent with the Act. is publishing this notice to solicit options market from relaying Persons making written submission comments on the proposed rule change information obtained on the floor (due should file six copies thereof with the from interested persons. to time and place advantage) to an Secretary, Securities and Exchange I. Self-Regulatory Organization’s approved person of the specialist who Commission, 450 Fifth Street, NW, Statement of the Terms of Substance of trades the stock underlying the option Washington, DC 20549–0609. Copies of the Proposed Rule Change the submission, all subsequent on a regional exchange or in another The Phlx proposes to amend Phlx market. amendments, all written statements with respect to the proposed rule Rule 1063(a), Phlx Options Floor 2. Statutory Basis change that are filed with the Procedure Advice A–10, and Phlx Commission, and all written Options Floor Procedure Advice C–1. The Exchange believes the proposed The proposed amendments would communications relating to the rule change is consistent with Section provide an exception, limited only to proposed rule change between the 6(b) of the Act 7 in general, and furthers foreign currency options (‘‘FCOs’’), from the objectives of Section 6(b)(5) of the Commission and any person, other than the requirement that a Registered Act 8 in particular, because it is those that may be withheld from the Options Trader (‘‘ROT’’) be present at designed to promote just and equitable public in accordance with the the trading post in certain principles of trade, to remove provisions of 5 U.S.C. 552, will be circumstances. The proposal would also impediments to and perfect the available for inspection and copying in make certain non-substantive stylistic mechanism of a free and open market the Commission’s Public Reference changes to Floor Procedure Advices A– and a national market system, and, in Room. Copies of such filing will also be 10 and C–1. The text of the proposed general, to protect investors and the available for inspection and copying at rule change is available at the principal public interest. the principal office of the NYSE. All offices of the Phlx and at the submissions should refer to File No. Commission. B. Self-Regulatory Organization’s SR–NYSE–00–62 and should be II. Self-Regulatory Organization’s Statement on Burden on Competition submitted by February 16, 2001. Statement of the Purpose of, and The Exchange believes that the For the Commission by the Division of Statutory Basis for, the Proposed Rule proposed fee change will not impose Market Regulation, pursuant to delegated Change authority.9 any burden on competition that is not In its filing with the Commission, the necessary or appropriate in the Margaret H. McFarland, Phlx included statements concerning furtherance of the purposes of the Act. Deputy Secretary. the purpose of and basis for the C. Self-Regulatory Organization’s [FR Doc. 01–2379 Filed 1–25–01; 8:45 am] proposed rule change and discussed any Statement on Comments on the BILLING CODE 8010–01–M comments it had received on the Proposed Rule Change Received From proposal. The text of these statements Members, Participants or Others may be examined at the places specified in Item IV below. The Phlx has prepared The Exchange has neither solicited summaries, set forth in sections A, B, nor received written comments on the and C below, of the most significant proposed rule change. aspects of such statements. 7 15 U.S.C. 78f(b). 1 15 U.S.C. 78s(b)(1). 8 15 U.S.C. 78f(b)(5). 9 17 CFR 200.30–2(a)(12). 2 17 CFR 240.19b–4. VerDate 11 A. Self-Regulatory Organization’s not be possible under those B. Self-Regulatory Organization’s Statement of the Purpose of, and circumstances. In the Phlx’s view, the Statement on Burden on Competition Statutory Basis for, the Proposed Rule amendments were necessary in order to Change enable the Phlx to continue to provide The Phlx does not believe that the proposed rule change will impose any 1. Purpose fair and orderly markets in FCOs in the absence of FCO ROTs on the FCO floor. inappropriate burden on competition. The Phlx is seeking approval of amendments of Phlx Rule 1063(a) The Phlx now proposes a rule change C. Self-Regulatory Organization’s (‘‘Responsibilities of Floor Brokers’’), that would permanently exempt FCO Statement on Comments on the Phlx Options Floor Procedure Advice Specialists and FCO Floor Brokers from Proposed Rule Change Received From A–10 (‘‘Specialist Trading With Book’’), the requirements in Phlx Rule 1063(a) Members, Participants, or Others and Phlx Options Floor Procedure and Phlx Options Floor Procedure The Phlx has neither solicited nor Advice C–1 (‘‘Ascertaining the Presence Advices A–10 and C–1. Specifically, the of ROTs in a Trading Crowd’’), as Phlx proposes to amend Rule 1063(a) received written comments on the discussed below. Phlx Rule 1063(a) and Phlx Options Floor Procedure proposed rule change. Advices A–10 and C–1 by deleting from provides that Options Floor Brokers III. Date of Effectiveness of the each rule the words ‘‘until March 31, shall ascertain that at least one Proposed Rule Change and Timing for 2001,’’ thereby making permanent the Registered Options Trading (‘‘ROT’’) is Commission Action present at the trading post before temporary exceptions that those rules representing an order for execution. currently provide.5 The Phlx represents Within 35 days of the date of Phlx Options Floor Procedure Advice that, like the temporary rule change, the publication of this notice in the Federal A–10 provides that in any instance permanent exception would apply only Register or within such longer period (i) where a Specialist wishes to participate if no ROT is present on the FCO floor as the Commission may designate up to as principal in a trade with an order when an FCO Specialist trades as 90 days of such date if it finds such placed on that Specialist’s book, the principal with an order on the book, or longer period to be appropriate and Specialist must ensure that at least one when an FCO Floor Broker represents publishes its reasons for so finding or ROT is present in the trading crowd and an order or executes a trade. The Phlx (ii) as to which the Phlx consents, the is aware of the Specialist’s intention to believes that the proposed rule change Commission will: trade with the book both at the time of would enable it to provide fair and and immediately before the execution. orderly markets in FCOs in the event A. by order approve such rule change; Phlx Options Floor Procedure Advice that FCO ROTs are absent from the FCO or C–1 provides that a Floor Broker floor after the current temporary rule B. institute proceedings to determine representing an order in options shall, change expires on March 31, 2001. whether the proposed rule change before executing the order, ascertain should be disapproved. that at least one ROT is present in the 2. Statutory Basis IV. Solicitation of Comments trading crowd at the post where the The Phlx believes that the proposed order is executed. rule change is consistent with Section Each of these rules currently contains Interested persons are invited to a temporary exception that is limited 6(b) of the Act in general, and furthers submit written data, views, and only to FCO transactions. Pursuant to the objectives of Section 6(b)(5) in arguments concerning the foregoing, the temporary exception, which expires particular, in that it is designed to including whether the proposed rule on March 31, 2001, an FCO Specialist promote just and equitable principles of change is consistent with the Act. may trade as principal with an order on trade, to foster cooperation and Persons making written submissions the book and an FCO Floor Broker may coordination with persons engaged in should file six copies thereof with the represent an order or execute a trade regulating, clearing, settling, and Secretary, Securities and Exchange when no ROT registered in the FCO is processing information with respect to Commission, 450 Fifth Street, NW, present on the Phlx’s FCO trading transactions in securities, to remove Washington, DC 20549–0609. Copies of 3 impediments to and perfect the floor. the submission, all subsequent mechanism of a free and open market The Commission approved the amendments, all written statements and a national market system, and, in temporary exception on January 3, 2001, with respect to the proposed rule 4 general, to protect investors and the on an accelerated basis. The Phlx change that are filed with the requested accelerated approval of the public interest. Moreover, the Phlx Commission, and all written temporary exception after it learned believes that the proposed rule change communications relating to the that, as of January 3, 2001, no ROTs is not designed to permit unfair would be doing business on a regular discrimination between customers, proposed rule change between the basis on the Phlx’s FCO floor. The Phlx issuers, brokers, or dealers. In the Phlx’s Commission and any person, other than anticipated that there very likely would view, the proposed rule change will those that may be withheld from the be periods of time when FCO Specialists permit Phlx Specialists to continue to public in accordance with the and FCO Floor Brokers would be on the trade as principal with orders on the provisions of 5 U.S.C. 552, will be FCO floor with no FCO ROTs present, book, and will allow Phlx Floor Brokers available for inspection and copying in and that compliance with Phlx Rule to continue to represent and execute the Commission’s Public Reference 1063(a) and Phlx Options Floor orders in FCOs in the event that no Room. Copies of such filing will also be Procedure Advices A–10 and C–1 would ROTs are present on the FCO floor. available for inspection and copying at the principal office of the Phlx. All 3 The Phlx’s FCO trading floor is located in the 5 The proposed rule change also makes non- submissions should refer to File No. same building as its equity options trading floor, substantive changes to Phlx Rule 1063(a) and Phlx SR–Phlx–01–06 and should be but is in a different room. Options Floor Procedure Advices A–10 and C–1 by 4 Securities Exchange Act Release No. 43799 replacing the shorthand term ‘‘ROT’’ with the term submitted by February 16, 2001. (January 3, 2001), 66 FR 2469 (January 11, 2001) ‘‘Registered Options Trader.’’ The temporary rule (File No. SR–Phlx–00–111). change incorporated those same changes. VerDate 11 For the Commission, by the Division of collects will be used to determine Medicare, Black Lung or Supplemental Market Regulation, pursuant to delegated entitlement to retirement benefits. The Security Income overpayments. 6 authority. respondents are individuals who choose Number of Respondents: 500,000. Margaret H. McFarland, apply for Social Security retirement Frequency of Response: 1. Deputy Secretary. insurance. Average Burden Per Response: 120 [FR Doc. 01–2380 Filed 1–25–01; 8:45 am] Number of Respondents: 1,460,692. minutes. Estimated Annual Burden: 1,000,000 BILLING CODE 8010–01–M Frequency of Response: 1. Average Burden Per Response: 10.5 hours. 5. Beneficiary Interview and Auditor’s minutes. Observations Form-0960–0630. The SOCIAL SECURITY ADMINISTRATION Estimated Annual Burden: 255,621 information collected through the hours. Agency Information Collection Beneficiary Interview and Auditor’s 2. Pain Report-Child—0960–0540. Observations form, SSA–322, will be Activities: Proposed Request and The information collected on form SSA– Comment Request used by SSA’s Office of the Inspector 3371–BK will be used to obtain the General (OIG) to interview beneficiaries The Social Security Administration types of information specified in the and/or their caregivers to determine (SSA) publishes a list of information regulations and to provide disability whether representative payees are collection packages that will require interviewers (and applicants/claimants complying with their duties and clearance by the Office of Management in self-help situations) with a responsibilities. Respondents to this and Budget (OMB) in compliance with convenient means of recording the collection will be randomly selected Pub.L. 104–13 effective October 1, 1995, information obtained. This information Supplemental Security Income The Paperwork Reduction Act of 1995. is used by the State disability recipients and Social Security SSA is soliciting comments on the determination services (DDS) beneficiaries that have representative accuracy of the agency’s burden adjudicators, and administrative law payees. estimate; the need for the information; judges, to assess the effects of symptoms Number of Respondents: 150. its practical utility; ways to enhance its on functionality for determining Frequency of Response: 1. quality, utility and clarity; and on ways disability under the Social Security Act. Average Burden Per Response: 15 to minimize burden on respondents, The respondents are applicants for SSI minutes. including the use of automated benefits. Estimated Annual Burden: 38 hours. collection techniques or other forms of Number of Respondents: 250,000. II. The information collections listed information technology. Frequency of Response: 1. below have been submitted to OMB for Written comments and Average Burden Per Response: 15 clearance. Your comments on the recommendations regarding the minutes. information collections would be most information collection(s) should be Estimated Annual Burden: 62,500 useful if received by OMB and SSA submitted to the SSA Reports Clearance hours. within 30 days from the date of this Officer and to the OMB Desk Officer at 3. Reconsideration Report for publication. You can obtain a copy of the following addresses: Disability Cessation—0960–0350. Form the OMB clearance packages by calling (OMB), Attn: Desk Officer for SSA, New SSA–782–BK will be used by claimants the SSA Reports Clearance Officer on Executive Office Building, Room and SSA field offices to document new (410) 965–4145, or by writing to him at 10230, 725 17th St., NW., developments on the claimant’s the address listed above. 1. Discrimination Complaint Form— Washington, DC 20503 condition (as perceived by the (SSA), Social Security Administration, claimant), since the prior continuing 0960–0585. The information collected DCFAM, Attn: Frederick W. disability interview was conducted. The on form SSA–437 will be used by SSA Brickenkamp 1–A–21 Operations form will also be used by the SSA to investigate and informally resolve Bldg., 6401 Security Blvd., Baltimore, interviewer to provide his/her complaints of discrimination based on MD 21235 observations of the claimant. The race, color, national origin, sex, age, religion and retaliation in any program I. The information collections listed respondents are claimants for Old-Age, Survivors and Disability Insurance and or activity conducted by SSA. A person below will be submitted to OMB within who believes that he or she has been 60 days from the date of this notice. Supplemental Security Income, who file a Request for Reconsideration— discriminated against on any of the Therefore, your comments should be above bases may file a written submitted to SSA within 60 days from Disability Cessation. Number of Respondents: 100,000. complaint of discrimination. The the date of this publication. You can information will be used to identify the Frequency of Response: 1. obtain copies of the collection complainant; identify the alleged Average Burden Per Response: 30 instruments by calling the SSA Reports discriminatory act; ascertain the date of minutes. Clearance Officer at 410–965–4145, or such alleged act; obtain the identity of Estimated Annual Burden: 50,000 by writing to him at the address listed the individual(s)/ facility/component hours. above. that allegedly discriminated; and 1. Application for Retirement 4. Request for Waiver of Overpayment ascertain other relevant information that Insurance Benefits—0960–0007. In Recovery or Change in Repayment would assist in the investigation and order to receive Social Security Notice—0960–0037. Form SSA–632 resolution of the complaints. The retirement insurance benefits, an collects information on the respondents are individuals who allege individual must file an application with circumstances surrounding discrimination on the grounds described the Social Security Administration overpayment of Social Security Benefits above. (SSA). The SSA–1 is one application to recipients. SSA uses the information Number of Respondents: 300. that the Commissioner of Social to determine whether recovery of an Frequency of Response: 1. Security prescribes to meet this overpayment amount can be waived or Average Burden Per Response: 1 hour. requirement. The information that SSA must be repaid and, if repaid, how Estimated Annual Burden: 300 hours. recovery will be made. The respondents 2. Claimant’s Statement When 6 17 CFR 200.30–3(a)(12). are recipients of Social Security, Request for Hearing is Filed and the VerDate 11 Issue is Disability—0960–0316. SSA Public Notice of these determinations is Dated: January 17, 2001. requests that a claimant complete an ordered to be published in the Federal Helena Kane Finn, HA–4486 when a claim for title II Register. Acting Assistant Secretary for Educational disability benefits or title XVI FOR FURTHER INFORMATION CONTACT: For and Cultural Affairs, Department of State. Supplemental Security Income benefits further information, including a list of [FR Doc. 01–2409 Filed 1–25–01; 8:45 am] is denied and the claimant wishes a the exhibit objects, contact Paul W. BILLING CODE 4710–08–P hearing before an Administrative Law Manning, Attorney-Adviser, Office of Judge (ALJ). SSA uses this form to the Legal Adviser, 202/619–5997, and obtain updated information on the the address is Room 700, United States DEPARTMENT OF STATE claimant’s medical treatment to assist Department of State, 301 4th Street, the ALJ in preparing for the hearing and SW., Washington, DC 20547–0001. [Public Notice Number 3541] in issuing a decision on entitlement to Dated: January 17, 2001. benefits. The respondents are Shipping Coordinating Committee Helena Kane Finn, individuals whose claims have been International Maritime Organization denied and who want a hearing before Acting Assistant Secretary for Educational Legal Committee; Notice of Meeting and Cultural Affairs, Department of State. an ALJ. [FR Doc. 01–2410 Filed 1–25–01; 8:45 am] The U.S. Shipping Coordinating Number of Respondents: 442,720. Committee (SHC) will conduct an open Frequency of Response: 1. BILLING CODE 4710–08–P meeting at 10:00 a.m. on Tuesday, Average Burden Per Response: 15 March 6, 2001, in Room 2415 at U.S. minutes. DEPARTMENT OF STATE Coast Guard Headquarters, 2100 Second Estimated Annual Burden: 110,680. Street, SW., Washington, DC. The Dated: January 19, 2001. [Public Notice 3560] purposes of this meeting are to prepare Frederick W. Brickenkamp, for: (1) The International Conference on Culturally Significant Objects Imported Liability and Compensation for Bunker Reports Clearance Officer. for Exhibition Determinations: Oil Damage, 2001 (bunkers convention [FR Doc. 01–2324 Filed 1–25–01; 8:45 am] ‘‘Rembrandt’s Portrait of an Elderly diplomatic conference); (2) an informal BILLING CODE 4191–02–P Woman’’ meeting of interested delegates to the AGENCY: United States Department of International Maritime Organization DEPARTMENT OF STATE State. (IMO) Legal Committee to discuss the ACTION: Notice. draft protocol to the Athens Convention [Public Notice 3561] Relating to the Carriage of Passengers SUMMARY: Notice is hereby given of the and Their Luggage By Sea (draft Athens Culturally Significant Objects Imported following determinations: Pursuant to protocol); and (3) the next meeting of for Exhibition Determinations: the authority vested in me by the Act of the Joint International Maritime ‘‘European Masterworks: Paintings October 19, 1965 [79 Stat. 985, 22 U.S.C. Organization/International Labor from the Collection of the Art Gallery 2459], the Foreign Affairs Reform and Organization Ad Hoc Expert Working of Ontario’’ Restructuring Act of 1998 [112 Stat. Group on Liability and Compensation AGENCY: United States Department of 2681 et seq.], Delegation of Authority Regarding Claims for Death, Personal State. No. 234 of October 1, 1999 [64 FR Injury and Abandonment of Seafarers 56014], and Delegation of Authority No. ACTION: Notice. (IMO/ILO Ad Hoc Expert Working 236 of October 19, 1999 [64 FR 57920], Group). Finally, the meeting will afford SUMMARY: Notice is hereby given of the as amended by Delegation of Authority an opportunity to review the work plan following determinations: Pursuant to No. 236–3 of August 28, 2000 [65 FR of the IMO Legal Committee and, in the authority vested in me by the Act of 53795], I hereby determine that the particular, the anticipated timeframe for October 19, 1965 [79 Stat. 985, 22 U.S.C. object to be included in the exhibit, submission of the draft Athens protocol 2459], the Foreign Affairs Reform and ‘‘Rembrandt’s Portrait of an Elderly and a draft Wreck Removal Convention Restructuring Act of 1998 [112 Stat. Woman,’’ imported from abroad for the to diplomatic conferences. 2681 et seq.], Delegation of Authority temporary exhibition without profit The headquarters of IMO will host the No. 234 of October 1, 1999 [64 FR within the United States, is of cultural bunkers convention diplomatic 56014], and Delegation of Authority No. significance. The object is imported conference, which will be held from 19 236 of October 19, 1999 [64 FR 57920], pursuant to a loan agreement with a through 23 March 2001. This conference as amended by Delegation of Authority foreign lender. I also determine that the will consider the adoption of a draft No. 236–3 of August 28, 2000 [65 FR temporary exhibition or display of the International Convention on Liability 53795], I hereby determine that the object at the Museum of Fine Arts, and Compensation for Bunker Oil objects to be included in the exhibit, Houston, Texas, from on or about Pollution Damage. The headquarters of ‘‘European Masterworks: Paintings from February 1, 2001, to on or about August IMO tentatively also will host an the Collection of the Art Gallery of 31, 2001, is in the national interest. informal meeting of interested delegates Ontario’’ imported from abroad for the Public Notice of these determinations is on March 14, 2001, to discuss temporary exhibition without profit ordered to be published in the Federal outstanding issues regarding the draft within the United States, is of cultural Register. Athens protocol. Finally, the IMO/ILO significance. The objects are imported FOR FURTHER INFORMATION CONTACT: For Ad Hoc Expert Working Group will pursuant to loan agreements with further information, including a list of meet at IMO headquarters from April 30 foreign lenders. I also determine that the the exhibit object, contact Paul W. through May 4, 2001, and will continue temporary exhibition or display of the Manning, Attorney-Adviser, Office of to examine the issue of financial objects at the Frist Center for the Visual the Legal Adviser, 202/619–5997, and security for seafarers and their Arts, Nashville, Tennessee, from on or the address is Room 700, United States dependents with regard to about April 8, 2001, to on or about July Department of State, 301 4th Street, compensation in cases of personal 8, 2001, is in the national interest. SW., Washington, DC 20547–0001. injury, death and abandonment. VerDate 11 Members of the public are invited to Second Street SW., Washington, DC application have been shown in earlier attend the SHC meeting up to the 20593–0001; by calling 202–267–0950; Federal Register publications, they are seating capacity of the room. For further or by faxing 202–267–4850. This notice not repeated here. Requests for information, or to submit views in and the charter are available on the modifications of exemptions (e.g. to advance of the meeting, please contact Internet at http://dms.dot.gov. provide for additional hazardous Captain Joesph F. Ahern or Lieutenant FOR FURTHER INFORMATION CONTACT: Mr. materials, packaging design changes, Daniel J. Goettle, U.S. Coast Guard, Albert J. Marmo, Executive Director of additional mode of transportation, etc.) Office of Maritime and International NBSAC, telephone 202–267–0950, fax are described in footnotes to the Law (G–LMI), 2100 Second Street, SW., 202–267–4285. application number. Application Washington, DC 20593–0001; telephone numbers with the suffix ‘‘M’’ denote a (202) 267–1527; fax (202) 267–4496. Dated: January 17, 2001. modification request. These Terry M. Cross, Dated: January 22, 2001. applications have been separated from Rear Admiral U.S. Coast Guard, Assistant Mira Piplani, the new applications for exemptions to Commandant for Operations. facilitate processing. International Transportation Commercial [FR Doc. 01–2187 Filed 1–25–01; 8:45 am] Officer, Shipping Coordinating Committee, DATES: Comments must be received on Department of State. BILLING CODE 4910–15–M or before February 12, 2001. [FR Doc. 01–2408 Filed 1–25–01; 8:45 am] ADDRESS COMMENTS TO: Records Center, BILLING CODE 4710–07–P DEPARTMENT OF TRANSPORTATION Research and Special Programs Administration, U.S. Department of Research and Special Programs Transportation, Washington, DC 20590. DEPARTMENT OF TRANSPORTATION Administration Comments should refer to the application number and be submitted in Coast Guard Office of Hazardous Materials Safety; triplicate. If confirmation of receipt of Notice of Applications for Modification [USCG–201–8720] comments is desired, include a self- of Exemption addressed stamped postcard showing National Boating Safety Advisory the exemption number. AGENCY: Research and Special Programs Council; Charter Renewal Administration, DOT. FOR FURTHER INFORMATION CONTACT: Copies of the applications are available AGENCY: Coast Guard, DOT. ACTION: List of Applications for for inspection in the Records Center, ACTION: Notice of charter renewal. Modification of Exemptions. Nassif Building, 400 7th Street, SW., SUMMARY: The Secretary of SUMMARY: In accordance with the Washington, DC or at http:// Transportation has renewed the charter procedures governing the application dms.dot.gov. for the National Boating Safety Advisory for, and the processing of, exemptions This notice of receipt of applications Council (NBSAC) for 2 years from from the Department of Transportation’s for modification of exemptions is December 20, 2000 until December 20, Hazardous Materials Regulations (49 published in accordance with Part 107 2002. NBSAC is a Federal advisory CFR part 107, Subpart B), notice is of the Federal hazardous materials committee under 5 U.S.C. App. 2. It hereby given that the Office of transportation law (49 U.S.C. 5117(b); advises the Coast Guard on the need for Hazardous Materials Safety has received 49 CFR 1.53(b)). Federal regulations and other major the applications described herein. This Issued in Washington, DC, on January 22, boating safety matters. notice is abbreviated to expedite 2001. ADDRESSES: You may request a copy of docketing and public notice. Because J. Suzanne Hedgepeth, the charter by writing to Commandant the sections affected, modes of Director, Office of Hazardous Materials (G–OPB–1), U.S. Coast Guard, 2100 transportation, and the nature of Exemptions and Approvals. Application Modification of number Docket number Applicant exemption 8757–M ...... YZ Systems, Inc., Conroe, TX (See Footnote 1) ...... 8757 8865–M ...... Carleton Technologies, Inc., Orchard Park, NY (See Footnote 2) ...... 8865 9758–M ...... The Coleman Company, Inc., Wichita, KS (See Footnote 3) ...... 9758 10985–M ...... Georgia-Pacific Corporation, Atlanta, GA (See Footnote 4) ...... 10985 11440–M ...... PPG Industries, Inc., Pittsburgh, PA (See Footnote 5) ...... 11440 12074–M ...... RSPA–1998–3841 Van Hool NV, B–2500 Lier Koningshooikt, BE (See Footnote 6) ...... 12074 12184–M ...... RSPA–1998–4886 Weldship Corporation, Bethlehem, PA (See Footnote 7) ...... 12184 12266–M ...... RSPA–1999–5636 Toyota Motor Sales, U.S.A., Inc., Torrance, CA (See Footnote 8) ...... 12266 12581–M ...... RSPA–2000–8387 Nat’l Aero & Space Admn (Goodard Space Flight Ctr), Greenbelt, MD (See Foot- 12581 note 9). 1 To modify the exemption to authorize a design change of the non-DOT specification stainless cylinder for shipment of compressed gases. 2 To modify the exemption to update the packaging language of the non-DOT specification cylinders to include the reclassified pyrotechnic de- vices for the transportation of compressed gases. 3 To modify the exemption to authorize a design change of the non-refillable, non-DOT specification inside container for the transportation of certain Division 2.1 gases. 4 To modify the exemption to allow for the transportation of Division 2.1 materials in tank cars. 5 To modify the exemption to authorize the use of plastic pallets for the loading of polyethylene drums or composite packagings transporting certain Division 6.1 materials. 6 To modify the exemption to update the filling requirements to include suitable liquid level gauging devices for the transportation of Division 2.1 and 2.2 materials in DOT Specification steel portable tanks. 7 To modify the exemption to authorize alternative testing procedures of DOT–3A and DOT–3AA cylinders. VerDate 11 8 To modify the exemption to allow for rail freight as an authorized mode of transportation for small quantities of Class 3 materials in non-refill- able containers. 9 To modify the exemption to include Competent Authority Approval for the transportation of helium in non-DOT specification packaging. [FR Doc. 01–2402 Filed 1–25–01; 8:45am] CFR Part 107, Subpart B), notice is comments is desired, include a self- BILLING CODE 4910–60–M hereby given that the Office of addressed stamped postcard showing Hazardous Materials Safety has received the exemption application number. the applications described herein. Each FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF TRANSPORTATION mode of transportation for which a Copies of the applications (See Docket particular exemption is requested is Number) are available for inspection at Research and Special Programs indicated by a number in the ‘‘Nature of the New Docket Management Facility, Administration Application’’ portion of the table below PL–401, at the U.S. Department of as follows: 1—Motor vehicle, 2—Rail Office of Hazardous Materials Safety; Transportation, Nassif Building, 400 7th freight, 3—Cargo vessel, 4—Cargo Notice of Applications for Exemptions Street, SW., Washington, DC 20590 or at aircraft only, 5—Passenger-carrying http://dms.dot.gov. AGENCY: Research and Special Programs aircraft. This notice of receipt of applications Administration, DOT. DATES: Comments must be received on for new exemptions is published in accordance with Part 107 of the Federal ACTION: List of Applicants for or before February 26, 2001. Exemptions. ADDRESS COMMENTS TO: Records Center, hazardous materials transportation law Research and Special Programs (49 U.S.C. 5117(b); 49 CFR 1.53 (b)). SUMMARY: In accordance with the Administration, U.S. Department of Issued in Washington, DC, on January 22, procedures governing the application Transportation, Washington, DC 20590. 2001. for, and the processing of, exemptions Comments should refer to the J. Suzanne Hedgepeth, from the Department of Transportation’s application number and be submitted in Director, Office of Hazardous Materials Hazardous Materials Regulations (49 triplicate. If confirmation of receipt of Exemptions and Approvals. Application No. Docket No. Applicant Regulation(s) affected Nature of exemption thereof 12607–N ...... RSPA–01–8641 FIBA Technologies Inc., 49 CFR (vi), 173.34(e)(1), To authorize an alternative method of Westboro, MA. (e)(3), (e)(4), (e)(8), retest for DOT 3AL seamless cylinders (e)(14), (e)(15). manufactured from 6061 alloy for use in transporting Division 2.1, 2.2 and 2.3 materials. (modes 1, 2, 3, 4, 5). 12608–N ...... RSPA–01–8639 Solvay Interox, Inc., Hous- 49 CFR 172.102(c)(7)(ii) ..... To authorize the transportation in com- ton, TX. merce of hydrogen peroxide aqueous solutions in concentrations exceeding 72 percent but not exceeding 92 per- cent in DOT specification IM 101 steel portable tanks. (modes 1, 3). 12609–N ...... RSPA–01–8640 Department of Defense 49 CFR 171.14(a)(1), 171.8 To authorize the transportation in com- (DOD), Alexandria, VA. merce of non-bulk packagings con- taining Class 8 material that are no longer authorized for transportation. (mode 1). 12611–N ...... RSPA–01–8635 Hodgdon Powder Co., Inc., 49 CFR 173.171...... To authorize the transportation in com- Shawnee Mission, KS. merce of smokeless powder for ship- ments of small arms in quantities that exceed the prescribed limit. (modes 1, 2, 3). 12612–N ...... RSPA–01–8637 Genlabs, Chino, CA ...... 49 CFR 173.156...... To authorize the transportation in com- merce of small quantities of Class 8 ma- terial in non-bulk packages in quantities that exceed the weight allowable per pallet. (mode 1). 12613–N ...... RSPA–01–8702 Nova Chemical Co., Red 49 CFR 172.203(a), To authorize the transportation in com- Deer, Alberta, CN. 173.31(c)(1), 179.13. merce of a Class 3 material in DOT112J340 tank cars with a maximum gross weight on rail that exceed the maximum limit of 263,000 pounds. (mode 2). [FR Doc. 01–2403 Filed 1–25–01; 8:45 am] DEPARTMENT OF THE TREASURY SUMMARY: The Department of the BILLING CODE 4910–60–M Treasury is engaged in a multi-year Financial Crimes Enforcement education program to disseminate Network; Proposed Collection; information to the Money Services Comment Request Business (MSB) industry regarding regulations which requires MSBs to ACTION: Notice and request for register with the Financial Crimes comments. Enforcement Network (FinCEN) and to VerDate 11 file Suspicious Activity Reports (SARs). quality, utility, and clarity of the Type of Review: Extension of a MSBs include money transmitters; information to be collected; (d) ways to currently approved collection. issuers, redeemers, and sellers of money minimize the burden of the collection of Affected Public: Business or other for- orders and traveler’s checks; check information of respondents, including profit organizations. cashers; and currency exchangers. through the use of automated collection Estimated Number of Respondents: Treasury places a high priority on techniques or other forms of information 1,000. effective and broad-reaching initiatives technology; and (e) estimates of capital Estimated Time Per Respondent: 7hr., to facilitate the education of MSBs and or start-up costs and costs of operation, 40 min. their agents. The survey is intended to maintenance, and purchase of services Estimated Total Annual Burden provide baseline data regarding the to provide information. Hours: 7,660. makeup of the MSB industry and the Dated: January 22, 2001. The following paragraph applies to all extent of knowledge within the industry Kevin Hamer, of the collections of information covered regarding its obligations under the Bank Chief of Staff, Department of the Treasury, by this notice: Secrecy Act and its accompanying Office of Public Education. An agency may not conduct or regulations. [FR Doc. 01–2387 Filed 1–25–01; 8:45 am] sponsor, and a person is not required to DATES: Written comments should be BILLING CODE 4810–25–M respond to, a collection of information received on or before March 27, 2001 to unless the collection of information be assured of consideration. displays a valid OMB control number. ADDRESSES: Direct all written comments DEPARTMENT OF THE TREASURY Books or records relating to a collection to: Financial Crimes Enforcement of information must be retained as long Network, Eileen C. Mayer, 2070 Chain Internal Revenue Service as their contents may become material in the administration of any internal Bridge Road, Vienna, VA 22182, (202) Proposed Collection; Comment revenue law. Generally, tax returns and 354–6400; E-mail: Request for Form 8875 [email protected] tax return information are confidential, as required by 26 U.S.C. 6103. FOR FURTHER INFORMATION CONTACT: AGENCY: Internal Revenue Service (IRS), Requests for additional information or Treasury. Request for Comments: Comments copies of the survey form and ACTION: Notice and request for submitted in response to this notice will instructions should be directed to: comments. be summarized and/or included in the Department of the Treasury, Office of request for OMB approval. All SUMMARY: Public Education, Malcolm Carter, 1500 The Department of the comments will become a matter of Pennsylvania Avenue, NW, Room 2222, Treasury, as part of its continuing effort public record. Comments are invited on: Washington, DC 20220, Phone: (202) to reduce paperwork and respondent (a) Whether the collection of 622–0211; E-mail: burden, invites the general public and information is necessary for the proper [email protected] other Federal agencies to take this performance of the functions of the opportunity to comment on proposed agency, including whether the SUPPLEMENTARY INFORMATION: and/or continuing information information shall have practical utility; Title: Money Services Business collections, as required by the (b) the accuracy of the agency’s estimate Program Response. Paperwork Reduction Act of 1995, of the burden of the collection of OMB Number: New Collection. Public Law 104–13 (44 U.S.C. information; (c) ways to enhance the Abstract: Telephone Survey to be 3506(c)(2)(A)). Currently, the IRS is quality, utility, and clarity of the conducted with business owners and soliciting comments concerning Form information to be collected; (d) ways to managers in the Money Services 8875, Taxable REIT Subsidiary Election. minimize the burden of the collection of Business industry. Survey asks DATES: Written comments should be information on respondents, including respondents to report methods used to received on or before March 27, 2001 to through the use of automated collection educate employees about regulations be assured of consideration. techniques or other forms of information and provide general organizational ADDRESSES: Direct all written comments technology; and (e) estimates of capital information. or start-up costs and costs of operation, Current Actions: New. to Garrick R. Shear, Internal Revenue Service, room 5244, 1111 Constitution maintenance, and purchase of services Type of Review: New. to provide information. Affected Public: Business. Avenue NW., Washington, DC 20224. Estimated Number of Respondents: FOR FURTHER INFORMATION CONTACT: Approved: January 16, 2001. 600. Requests for additional information or Garrick R. Shear, Estimated Time Per Respondent: copies of the form and instructions IRS Reports Clearance Officer. Fifteen Minutes. should be directed to Martha R. Brinson, [FR Doc. 01–2350 Filed 1–25–01; 8:45 am] Request for Comments: Comments (202) 622–3869, Internal Revenue BILLING CODE 4830–01–P submitted in response to this notice will Service, room 5244, 1111 Constitution be summarized and/or included in the Avenue NW., Washington, DC 20224. request for OMB approval. All SUPPLEMENTARY INFORMATION: DEPARTMENT OF THE TREASURY comments will become a matter of Title: Taxable REIT Subsidiary public record. Comments are invited Election. Internal Revenue Service on—(a) whether the collection of OMB Number: 1545–1721 Proposed Collection; Comment information is necessary for the proper Form Number: 8875. Request for Form SS–8 performance of the functions of the Abstract: A corporation and a REIT agency, including whether the use Form 8875 to jointly elect to have AGENCY: Internal Revenue Service (IRS), information shall have a practical the corporation treated as a taxable REIT Treasury. utility; (b) the accuracy of the agency’s subsidiary as provided in section 856(l). ACTION: Notice and request for estimate of the burden of the collection Current Actions: There are no changes comments. of information; (c) ways to enhance the being made to the form at this time. VerDate 11 SUMMARY: The Department of the Books or records relating to a collection DATES: Written comments should be Treasury, as part of its continuing effort of information must be retained as long received on or before March 27, 2001 to to reduce paperwork and respondent as their contents may become material be assured of consideration. burden, invites the general public and in the administration of any internal ADDRESSES: Direct all written comments other Federal agencies to take this revenue law. Generally, tax returns and to Garrick R. Shear, Internal Revenue opportunity to comment on proposed tax return information are confidential, Service, room 5244, 1111 Constitution and/or continuing information as required by 26 U.S.C. 6103. Avenue NW., Washington, DC 20224. collections, as required by the Request for Comments: Comments FOR FURTHER INFORMATION CONTACT: Paperwork Reduction Act of 1995, submitted in response to this notice will Requests for additional information or Public Law 104–13 (44 U.S.C. be summarized and/or included in the copies of the forms and instructions 3506(c)(2)(A)). Currently, the IRS is request for OMB approval. All should be directed to Carol Savage, soliciting comments concerning Form comments will become a matter of (202) 622–3945, Internal Revenue SS–8, Determination of Worker Status public record. Comments are invited on: Service, room 5242, 1111 Constitution for Purposes of Federal Employment (a) Whether the collection of Avenue NW., Washington, DC 20224. Taxes and Income Tax Withholding. information is necessary for the proper SUPPLEMENTARY INFORMATION: DATES: Written comments should be performance of the functions of the Title: W–2 (Wage and Tax Statement), received on or before March 27, 2001 to agency, including whether the W–2c (Corrected Wage and Tax be assured of consideration. information shall have practical utility; Statement), W–2AS (American Samoa ADDRESSES: Direct all written comments (b) the accuracy of the agency’s estimate Wage and Tax Statement), W–2GU to Garrick R. Shear, Internal Revenue of the burden of the collection of (Guam Wage and Tax Statement), W– Service, room 5244, 1111 Constitution information; (c) ways to enhance the 2VI (U.S. Virgin Islands Wage and Tax Avenue NW., Washington, DC 20224. quality, utility, and clarity of the Statement), W–3 (Transmittal of Wage FOR FURTHER INFORMATION CONTACT: information to be collected; (d) ways to and Tax Statements), W–3c (Transmittal Requests for additional information or minimize the burden of the collection of of Corrected Wage and Tax Statements), copies of the form and instructions information on respondents, including W–3PR (Informe de Comprobantes de should be directed to Martha Brinson, through the use of automated collection Retencion), W–3cPR (Transmision de (202) 622–3869, Internal Revenue techniques or other forms of information Comprobantes de Retencion Service, Room 5244, 1111 Constitution technology; and (e) estimates of capital Corregidos), and W–3SS (Transmittal of Avenue NW., Washington, DC 20224. or start-up costs and costs of operation, Wage and Tax Statements). SUPPLEMENTARY INFORMATION: maintenance, and purchase of services OMB Number: 1545–0008. Title: Determination of Worker Status to provide information. Form Number: Forms W–2, W–2c, W– for Purposes of Federal Employment Approved: January 16, 2001. 2AS, W–2GU, W–2VI, W–3, W–3c, W– Taxes and Income Tax Withholding. Garrick R. Shear, 3cPR, W–3PR, and W–3SS. Abstract: Employers report income OMB Number: 1545–0004. IRS Reports Clearance Officer. Form Number: SS–8. and withholding information on Form Abstract: Form SS–8 is used by [FR Doc. 01–2351 Filed 1–25–01; 8:45 am] W–2. Forms W–2AS, W–2GU and W– employers and workers to furnish BILLING CODE 4830–01–P 2VI are variations of Form W–2 for use information to IRS in order to obtain a in U.S. possessions. The Form W–3 determination as to whether a worker is series is used to transmit W–2 series DEPARTMENT OF THE TREASURY an employee for purposes of Federal forms to the Social Security employment taxes and income tax Internal Revenue Service Administration. Forms W–2c, W–3c and withholding. IRS uses the information W–3cPR are used to correct previously on Form SS–8 to make the Proposed Collection; Comment filed Forms W–2, W–3, and W–3PR. determination. Request for Forms W–2, W–2c, W–2AS, Individuals use Form W–2 to prepare Current Actions: There are no changes W–2GU, W–2VI, W–3, W–3c, W–3cPR, their income tax returns. being made to the Form SS–8 at this W–3PR, and W–3SS Current Actions: There are no changes time. being made to these forms at this time. Type of Review: Extension of a AGENCY: Internal Revenue Service (IRS), Type of Review: Extension of a currently approved collection. Treasury. currently approved collection. Affected Public: Business or other for- Affected Public: Business or other for- profit organizations, individuals, not- ACTION: Notice and request for profit organizations, individuals or for-profit institutions, Federal comments. households, not-for-profit institutions, government, farms, and state, local or farms, and Federal, state, local or tribal tribal governments. SUMMARY: The Department of the governments. Estimated Number of Respondents: Treasury, as part of its continuing effort Estimated Number of Responses: 6,900. to reduce paperwork and respondent 253,007,121. Estimated Time Per Respondent: 23 burden, invites the general public and Estimated Time Per Response: Varies. hrs., 59 mins. other Federal agencies to take this Estimated Total Annual Burden Estimated Total Annual Burden opportunity to comment on proposed Hours: 126,579,897. Hours: 165,462. and/or continuing information The following paragraph applies to all The following paragraph applies to all collections, as required by the of the collections of information covered of the collections of information covered Paperwork Reduction Act of 1995, by this notice: by this notice: Public Law 104–13 (44 U.S.C. An agency may not conduct or An agency may not conduct or 3506(c)(2)(A)). Currently, the IRS is sponsor, and a person is not required to sponsor, and a person is not required to soliciting comments concerning Forms respond to, a collection of information respond to, a collection of information W–2, W–2c, W–2AS, W–2GU, W–2VI, unless the collection of information unless the collection of information W–3, W–3c, W–3cPR, W–3PR, and W– displays a valid OMB control number. displays a valid OMB control number. 3SS. Books or records relating to a collection VerDate 11 of information must be retained as long FOR FURTHER INFORMATION CONTACT: Approved: January 18, 2001. as their contents may become material Requests for additional information or Garrick R. Shear, in the administration of any internal copies of the form and instructions IRS Reports Clearance Officer. revenue law. Generally, tax returns and should be directed to Larnice Mack, [FR Doc. 01–2353 Filed 1–25–01; 8:45 am] tax return information are confidential, (202) 622–3179, Internal Revenue BILLING CODE 4830–01–P as required by 26 U.S.C. 6103. Service, room 5244, 1111 Constitution Request for Comments: Comments Avenue NW., Washington, DC 20224. submitted in response to this notice will SUPPLEMENTARY INFORMATION: DEPARTMENT OF THE TREASURY be summarized and/or included in the Title: Tuition Payments Statement. request for OMB approval. All OMB Number: 1545–1574. Internal Revenue Service comments will become a matter of Form Number: Form 1098–T. Proposed Collection; Comment public record. Comments are invited on: Abstract: Section 6050S of the Request for Form 1098–E (a) Whether the collection of Internal Revenue Code requires eligible information is necessary for the proper education institutions to report certain AGENCY: Internal Revenue Service (IRS), performance of the functions of the information regarding tuition payments Treasury. agency, including whether the to the IRS and to students. Form 1098– information shall have practical utility; ACTION: Notice and request for T is used for this purpose. comments. (b) the accuracy of the agency’s estimate Current Actions: There are no changes of the burden of the collection of being made to the form at this time. SUMMARY: The Department of the information; (c) ways to enhance the Type of Review: Extension of a Treasury, as part of its continuing effort quality, utility, and clarity of the currently approved collection. to reduce paperwork and respondent information to be collected; (d) ways to Affected Public: Business or other for- burden, invites the general public and minimize the burden of the collection of profit organizations and not-for-profit other Federal agencies to take this information on respondents, including institutions. opportunity to comment on proposed through the use of automated collection Estimated Number of Responses: and/or continuing information techniques or other forms of information 21,078,651. collections, as required by the technology; and (e) estimates of capital Estimated Time Per Response: 9 min. Paperwork Reduction Act of 1995, or start-up costs and costs of operation, Estimated Total Annual Burden Public Law 104–13 (44 U.S.C. maintenance, and purchase of services Hours: 3,372,585. 3506(c)(2)(A)). Currently, the IRS is to provide information. The following paragraph applies to all soliciting comments concerning Form Approved: January 11, 2001. of the collections of information covered 1098–E, Student Loan Interest Garrick R. Shear, by this notice: Statement. IRS Reports Clearance Officer. An agency may not conduct or DATES: Written comments should be [FR Doc. 01–2352 Filed 1–25–01; 8:45 am] sponsor, and a person is not required to received on or before March 27, 2001 to BILLING CODE 4830–01–P respond to, a collection of information be assured of consideration. unless the collection of information ADDRESSES: Direct all written comments displays a valid OMB control number. to Garrick R. Shear, Internal Revenue DEPARTMENT OF THE TREASURY Books or records relating to a collection Service, room 5244, 1111 Constitution of information must be retained as long Avenue NW., Washington, DC 20224. Internal Revenue Service as their contents may become material FOR FURTHER INFORMATION CONTACT: Proposed Collection; Comment in the administration of any internal Requests for additional information or Request for Form 1098–T revenue law. Generally, tax returns and copies of the form and instructions tax return information are confidential, should be directed to Larnice Mack, AGENCY: International Revenue Service as required by 26 U.S.C. 6103. (202) 622–3179, Internal Revenue (IRS), Treasury. Request for Comments: Comments Service, room 5244, 1111 Constitution ACTION: Notice and request for submitted in response to this notice will Avenue NW., Washington, DC 20224. comments. be summarized and/or included in the SUPPLEMENTARY INFORMATION: request for OMB approval. All Title: Student Loan Interest SUMMARY: The Department of the comments will become a matter of Treasury, as part of its continuing effort Statement. public record. Comments are invited on: OMB Number: 1545–1576. to reduce paperwork and respondent (a) Whether the collection of burden, invites the general public and Form Number: Form 1098–E. information is necessary for the proper Abstract: Section 6050S(b)(2) of the other Federal agencies to take this performance of the functions of the Internal Revenue Code requires persons opportunity to comment on proposed agency, including whether the (financial institutions, governmental and/or continuing information information shall have practical utility; units, etc.) to report $600 or more of collections, as required by the (b) the accuracy of the agency’s estimate interest paid on student loans to the IRS Paperwork Reduction Act of 1995, of the burden of the collection of and the students. Form 1098–E is used Public Law 104–13(44 U.S.C. information; (c) ways to enhance the for this purpose. 3506(c)(2)(A)). Currently, the IRS is quality, utility, and clarity of the Current Actions: There are no changes soliciting comments concerning Form information to be collected; (d) ways to being made to the form at this time. 1098–T, Tuition Payments Statement. minimize the burden of the collection of Type of Review: Extension of a DATES: Written comments should be information on respondents, including currently approved collection. received on or before March 27, 2001 to through the use of automated collection Affected Public: Business or other for- be assured of consideration. techniques or other forms of information profit organzations, not-for-profit ADDRESSES: Direct all written comments technology; and (e) estimates of capital institutions, and State, local or tribal to Garrick R. Shear, Internal Revenue or start-up costs and costs of operation, governments. Service, room 5244, 1111 Constitution maintenance, and purchase of services Estimated Number of Responses: Avenue NW., Washington, DC 20224. to provide information. 8,761,303. VerDate 11 Estimated Time Per Response: 3 min. Paperwork Reduction Act of 1995, information is necessary for the proper Estimated Total Annual Burden Public Law 104–13 (44 U.S.C. performance of the functions of the Hours: 525,679. 3506(c)(2)(A)). Currently, the IRS is agency, including whether the The following paragraph applies to all soliciting comments concerning Form information shall have practical utility; of the collections of information covered 1024, Application for Recognition of (b) the accuracy of the agency’s estimate by this notice: Exemption Under Section 501(a). of the burden of the collection of An agency may not conduct or DATES: Written comments should be information; (c) ways to enhance the sponsor, and a person is not required to received on or before March 27, 2001 to quality, utility, and clarity of the respond to, a collection of information be assured of consideration. information to be collected; (d) ways to unless the collection of information ADDRESSES: Direct all written comments minimize the burden of the collection of displays a valid OMB control number. to Garrick R. Shear, Internal Revenue information on respondents, including Books or records relating to a collection Service, room 5244, 1111 Constitution through the use of automated collection of information must be retained as long Avenue NW., Washington, DC 20224. techniques or other forms of information as their contents may become material technology; and (e) estimates of capital FOR FURTHER INFORMATION CONTACT: in the administration of any internal or start-up costs and costs of operation, Requests for additional information or revenue law. Generally, tax returns and maintenance, and purchase of services copies of the form and instructions tax return information are confidential, to provide information. as required by 26 U.S.C. 6103. should be directed to Martha R. Brinson, Request for Comments: Comments (202) 622–3869, Internal Revenue Approved: January 16, 2001. submitted in response to this notice will Service, room 5244, 1111 Constitution Garrick R. Shear, be summarized and/or included in the Avenue NW., Washington, DC 20224. IRS Reports Clearance Officer. request for OMB approval. All SUPPLEMENTARY INFORMATION: [FR Doc. 01–2355 Filed 1–25–01; 8:45 am] comments will become a matter of Title: Application for Recognition of BILLING CODE 4830–01–P public record. Comments are invited on: Exemption Under Section 501(a). (a) Whether the collection of OMB Number: 1545–0057. information is necessary for the proper Form Number: 1024. DEPARTMENT OF THE TREASURY performance of the functions of the Abstract: Organizations seeking agency, including whether the exemption from Federal income tax Internal Revenue Service information shall have practical utility; under Internal Revenue Code section 501(a) as an organization described in Proposed Collection; Comment (b) the accuracy of the agency’s estimate Request for Form 1139 of the burden of the collection of most paragraphs of section 501(c) must information; (c) ways to enhance the use Form 1024 to apply for exemption. AGENCY: Internal Revenue Service (IRS), quality, utility, and clarity of the The information collected is used to Treasury. information to be collected; (d) ways to determine whether the organization ACTION: Notice and request for minimize the burden of the collection of qualifies for tax-exempt status. comments. information on respondents, including Current Actions: There are no changes through the use of automated collection being made to the form at this time. SUMMARY: The Department of the techniques or other forms of information Type of Review: Extension of a Treasury, as part of its continuing effort technology; and (e) estimates of capital currently approved collection. to reduce paperwork and respondent or start-up costs and costs of operation, Affected Public: Not-for-profit burden, invites the general public and maintenance, and purchase of services institutions. other Federal agencies to take this to provide information. Estimated Number of Respondents: opportunity to comment on proposed 4,718. and/or continuing information Approved: January 19, 2001. Estimated Time Per Respondent: 61 collections, as required by the Garrick R. Shear, hr., 47 min. Paperwork Reduction Act of 1995, IRS Reports Clearance Officer. Estimated Total Annual Burden Public Law 104–13 (44 U.S.C. [FR Doc. 01–2354 Filed 1–25–01; 8:45 am] Hours: 291,529. 3506(c)(2)(A)). Currently, the IRS is BILLING CODE 4830–01–P The following paragraph applies to all soliciting comments concerning Form of the collections of information covered 1139, Corporation Application for by this notice: Tentative Refund. DEPARTMENT OF THE TREASURY An agency may not conduct or DATES: Written comments should be sponsor, and a person is not required to received on or before March 27, 2001 to Internal Revenue Service respond to, a collection of information be assured of consideration. unless the collection of information Proposed Collection; Comment displays a valid OMB control number. ADDRESSES: Direct all written comments Request for Form 1024 Books or records relating to a collection to Garrick R. Shear, Internal Revenue Service, room 5244, 1111 Constitution AGENCY: Internal Revenue Service (IRS), of information must be retained as long Avenue NW., Washington, DC 20224. Treasury. as their contents may become material FOR FURTHER INFORMATION CONTACT: ACTION: Notice and request for in the administration of any internal comments. revenue law. Generally, tax returns and Requests for additional information or tax return information are confidential, copies of the form and instructions SUMMARY: The Department of the as required by 26 U.S.C. 6103. should be directed to Martha R. Brinson, Treasury, as part of its continuing effort Request for Comments: Comments (202) 622–3869, Internal Revenue to reduce paperwork and respondent submitted in response to this notice will Service, room 5244, 1111 Constitution burden, invites the general public and be summarized and/or included in the Avenue NW., Washington, DC 20224. other Federal agencies to take this request for OMB approval. All SUPPLEMENTARY INFORMATION: opportunity to comment on proposed comments will become a matter of Title: Corporation Application for and/or continuing information public record. Comments are invited on: Tentative Refund. collections, as required by the (a) Whether the collection of OMB Number: 1545–0582. VerDate 11 Form Number: Form 1139. DEPARTMENT OF THE TREASURY Estimated Number of Respondents: Abstract: Form 1139 is filed by 2,500. corporation that expect to have a net Internal Revenue Service Estimated Time Per Respondent: 2 operating loss, net capital loss, or [FI–59–89] hours, 24 minutes. unused general business credits carried Estimated Total Annual Burden back to a prior tax year. IRS uses Form Proposed Collection; Comment Hours: 6,000. The following paragraph applies to all 1139 to determine if the amount of the Request for Regulation Project of the collections of information covered loss or unused credits is proper. AGENCY: Internal Revenue Service (IRS), by this notice: Current Actions: There are no changes Treasury. An agency may not conduct or being made to the form at this time. ACTION: Notice and request for sponsor, and a person is not required to Type of Review: Extension of a comments. respond to, a collection of information currently approved collection. unless the collection of information SUMMARY: Affected Public: Business or other for- The Department of the displays a valid OMB control number. profit organizations. Treasury, as part of its continuing effort Books or records relating to a collection to reduce paperwork and respondent of information must be retained as long Estimated Number of Respondents: burden, invites the general public and as their contents may become material 3,000. other Federal agencies to take this in the administration of any internal Estimated Time Per Respondent: 40 opportunity to comment on proposed revenue law. Generally, tax returns and hr., 23 min. and/or continuing information tax return information are confidential, Estimated Total Annual Burden collections, as required by the as required by 26 U.S.C. 6103. Paperwork Reduction Act of 1995, Hours: 121,170. Request for Comments Public Law 104–13 (44 U.S.C. The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is Comments submitted in response to of the collections of information covered soliciting comments concerning an this notice will be summarized and/or by this notice: existing final regulation, FI–59–89 (TD included in the request for OMB An agency may not conduct or 8394), Proceeds of Bonds Used for approval. All comments will become a sponsor, and a person is not required to Reimbursement (§ 1.150–2(e) (originally matter of public record. Comments are respond to, a collection of information contained in § 1.104–18(c)). invited on: (a) Whether the collection of unless the collection of information DATES: Written comments should be information is necessary for the proper displays a valid OMB control number. received on or before March 27, 2001 to performance of the functions of the Books or records relating to a collection be assured of consideration. agency, including whether the of information must be retained as long information shall have practical utility; ADDRESSES: Direct all written comments as their contents may become material (b) the accuracy of the agency’s estimate to Garrick R. Shear, Internal Revenue in the administration of any internal of the burden of the collection of Service, room 5244, 1111 Constitution revenue law. Generally, tax returns and information; (c) ways to enhance the Avenue NW., Washington, DC 20224. tax return information are confidential, quality, utility, and clarity of the as required by 26 U.S.C. 6103. FOR FURTHER INFORMATION CONTACT: information to be collected; (d) ways to Requests for additional information or Request for Comments minimize the burden of the collection of copies of this regulation should be information on respondents, including Comments submitted in response to directed to Faye Bruce, (202) 622–6665, through the use of automated collection this notice will be summarized and/or Internal Revenue Service, room 5244, techniques or other forms of information included in the request for OMB 1111 Constitution Avenue NW., technology; and (e) estimates of capital approval. All comments will become a Washington, DC 20224. or start-up costs and costs of operation, matter of public record. Comments are SUPPLEMENTARY INFORMATION: maintenance, and purchase of services invited on: (a) Whether the collection of Title: Proceeds of Bonds Used for to provide information. Reimbursement. information is necessary for the proper Approved: January 16, 2001. performance of the functions of the OMB Number: 1545–1226. Regulation Project Number: FI–59–89. Garrick R. Shear, agency, including whether the IRS Reports Clearance Officer. information shall have practical utility; Abstract: This regulation clarifies [FR Doc. 01–2357 Filed 1–25–01; 8:45 am] (b) the accuracy of the agency’s estimate when the allocation of bond proceeds to of the burden of the collection of reimburse expenditures previously BILLING CODE 4830–01–P information; (c) ways to enhance the made by an issuer of the bond is treated as an expenditure of the bond proceeds. quality, utility, and clarity of the DEPARTMENT OF THE TREASURY information to be collected; (d) ways to The issuer must express a reasonable minimize the burden of the collection of official intent, on or prior to the date of Internal Revenue Service information on respondents, including payment, to reimburse the expenditure through the use of automated collection in order to assure that the [REG–109704–97] techniques or other forms of information reimbursement is not a device to evade requirements imposed by the Internal Proposed Collection; Comment technology; and (e) estimates of capital Request for Regulation Project or start-up costs and costs of operation, Revenue Code with respect to tax maintenance, and purchase of services exempt bonds. AGENCY: Internal Revenue Service (IRS), to provide information. Current Actions: There is no change to Treasury. this existing regulation. Approved: January 16, 2001. ACTION: Notice and request for Type of Review: Extension of a comments. Garrick R. Shear, currently approved collection. IRS Reports Clearance Officer. Affected Public: State, local or tribal SUMMARY: The Department of the [FR Doc. 01–2356 Filed 1–25–01; 8:45 am] governments, and not-for-profit Treasury, as part of its continuing effort BILLING CODE 4830–01–P institutions. to reduce paperwork and respondent VerDate 11 burden, invites the general public and request for OMB approval. All 3179, Internal Revenue Service, room other Federal agencies to take this comments will become a matter of 5244, 1111 Constitution Avenue NW., opportunity to comment on proposed public record. Comments are invited on: Washington, DC 20224. and/or continuing information (a) Whether the collection of SUPPLEMENTARY INFORMATION: collections, as required by the information is necessary for the proper Paperwork Reduction Act of 1995, performance of the functions of the Title: Election Not to Apply Look- Public Law 104–13 (44 U.S.C. agency, including whether the Back Method in De Minimis Cases. 3506(c)(2)(A)). Currently, the IRS is information shall have practical utility; OMB Number: 1545–1572. soliciting comments concerning an (b) the accuracy of the agency’s estimate Regulation Project Number: Reg– existing notice of proposed rulemaking of the burden of the collection of 120200–97. and temporary regulation, REG–109704– information; (c) ways to enhance the 97, HIPAA Mental Health Parity Act quality, utility, and clarity of the Abstract: Under Internal Revenue (§ 54.9812). information to be collected; (d) ways to Code section 460(b)(6), a taxpayer may elect not to apply the look-back method DATES: Written comments should be minimize the burden of the collection of information on respondents, including to long-term contracts in de minimis received on or before March 27, 2001 to cases. The taxpayer is required under be assured of consideration. through the use of automated collection techniques or other forms of information the regulation to notify the IRS of its ADDRESSES: Direct all written comments technology; and (e) estimates of capital election. to Garrick R. Shear, Internal Revenue or start-up costs and costs of operation, Service, room 5244, 1111 Constitution Current Actions: There are no changes maintenance, and purchase of services Avenue NW., Washington, DC 20224. being made to this existing regulation. to provide information. FOR FURTHER INFORMATION CONTACT: Type of Review: Extension of a Requests for additional information or Approved: January 16, 2001. currently approved collection. copies of the regulations should be Garrick R. Shear, Affected Public: Business or other for- directed to Larnice Mack, (202) 622– IRS Reports Clearance Officer. profit organizations. 3179, Internal Revenue Service, room [FR Doc. 01–2358 Filed 1–25–01; 8:45 am] Estimated Number of Respondents: 5244, 1111 Constitution Avenue NW., BILLING CODE 4830–01–P 20,000. Washington, DC 20224. Estimated Time Per Respondent: 12 SUPPLEMENTARY INFORMATION: Title: HIPAA Mental Health Parity DEPARTMENT OF THE TREASURY min. Act. Estimated Total Annual Burden OMB Number: 1545–1577. Internal Revenue Service Hours: 4,000. Regulation Project Number: Reg– [REG–120200–97] An agency may not conduct or 109704–97. sponsor, and a person is not required to Abstract: The regulations provide Proposed Collection; Comment respond to, a collection of information guidance for group health plans with Request for Regulation Project unless the collection of information mental health benefits about AGENCY: Internal Revenue Service (IRS), displays a valid OMB control number. requirements relating to parity in the Treasury. Books or records relating to a collection dollar limits imposed on mental health ACTION: of information must be retained as long benefits and medical/surgical benefits. Notice and request for comments. as their contents may become material Current Actions: There is no changes in the administration of any internal being made to these existing regulations. SUMMARY: The Department of the revenue law. Generally, tax returns and Type of Review: Extension of a Treasury, as part of its continuing effort tax return information are confidential, currently approved collection. to reduce paperwork and respondent as required by 26 U.S.C. 6103. Affected Public: Business or other for- burden, invites the general public and Request for Comments: Comments profit organizations, state, local or tribal other Federal agencies to take this governments, and not-for-profit submitted in response to this notice will opportunity to comment on proposed be summarized and/or included in the institutions. and/or continuing information Estimated Number of Respondents: request for OMB approval. All collections, as required by the comments will become a matter of 7,053. Paperwork Reduction Act of 1995, Estimated Time Per Respondent: 28 public record. Comments are invited on: Public Law 104–13 (44 U.S.C. min. (a) Whether the collection of 3506(c)(2)(A)). Currently, the IRS is Estimated Total Annual Burden information is necessary for the proper soliciting comments concerning an Hours: 3,280. performance of the functions of the An agency may not conduct or existing final regulation, REG–120200– agency, including whether the sponsor, and a person is not required to 97 (TD 8775), Election Not to Apply information shall have practical utility; respond to, a collection of information Look-Back Method in De Minimis Cases (b) the accuracy of the agency’s estimate unless the collection of information (§ 1.460–6). of the burden of the collection of displays a valid OMB control number. DATES: Written comments should be information; (c) ways to enhance the Books or records relating to a collection received on or before March 27, 2001 to quality, utility, and clarity of the of information must be retained as long be assured of consideration. information to be collected; (d) ways to as their contents may become material ADDRESSES: Direct all written comments minimize the burden of the collection of in the administration of any internal to Garrick R. Shear, Internal Revenue information on respondents, including revenue law. Generally, tax returns and Service, room 5244, 1111 Constitution through the use of automated collection tax return information are confidential, Avenue NW., Washington, DC 20224. techniques or other forms of information as required by 26 U.S.C. 6103. FOR FURTHER INFORMATION CONTACT: technology; and (e) estimates of capital Request for Comments: Comments Requests for additional information or or start-up costs and costs of operation, submitted in response to this notice will copies of the regulation should be maintenance, and purchase of services be summarized and/or included in the directed to Larnice Mack, (202) 622– to provide information. VerDate 11 Approved: January 16, 2001. Affected Public: Business or other for- ACTION: Notice. Garrick R. Shear, profit organizations, and not-for-profit IRS Reports Clearance Officer. institutions. SUMMARY: Applications are being [FR Doc. 01–2359 Filed 1–25–01; 8:45 am] Estimated Number of Respondents: accepted for membership on the panels, 147,000. BILLING CODE 4830–01–P located in Brooklyn, Florida, Milwaukee Estimated Time Per Respondent: 20 and Seattle. min. DEPARTMENT OF THE TREASURY Estimated Total Annual Burden DATES: The Application period is Hours: 49,000. January 29, 2001 to March 9, 2001. Internal Revenue Service The following paragraph applies to all of the collections of information covered FOR FURTHER INFORMATION CONTACT: Proposed Collection; Comment by this notice: Michael Lewis, Director, IRS Citizen Request for Notice 98–1 An agency may not conduct or Advocacy Panel, Office of the Assistant sponsor, and a person is not required to Secretary for Management and Chief AGENCY: Internal Revenue Service (IRS), respond to, a collection of information Financial Officer, Department of the Treasury. unless the collection of information Treasury, 1500 Pennsylvania Avenue, ACTION: Notice and request for displays a valid OMB control number. NW., Room 2421, Washington, DC comments. Books or records relating to a collection 20220. Information is also available at of information must be retained as long www.improveirs.org. SUMMARY: The Department of the as their contents may become material Treasury, as part of its continuing effort in the administration of any internal SUPPLEMENTARY INFORMATION: The to reduce paperwork and respondent revenue law. Generally, tax returns and mission of the panels is: to provide burden, invites the general public and tax return information are confidential, citizen input into enhancing IRS other Federal agencies to take this as required by 26 U.S.C. 6103. customer service by identifying opportunity to comment on proposed Request for Comments: Comments problems and making recommendations and/or continuing information submitted in response to this notice will for improvement with IRS systems and collections, as required by the be summarized and/or included in the procedures; elevate the identified Paperwork Reduction Act of 1995, request for OMB approval. All problems to the appropriate IRS official Public Law 104–13 (44 U.S.C. comments will become a matter of and monitor the progress to effect 3506(c)(2)(A)). Currently, the IRS is public record. Comments are invited on: change; and refer individual taxpayers soliciting comments concerning Notice (a) Whether the collection of to the appropriate IRS office for 98–1, Nondiscrimination Testing. information is necessary for the proper assistance in resolving their problems. DATES: Written comments should be performance of the functions of the The panels will consist of 9–14 received on or before March 27, 2001 to agency, including whether the be assured of consideration. information shall have practical utility; volunteer members who serve at the pleasure of the Secretary of Treasury ADDRESSES: Direct all written comments (b) the accuracy of the agency’s estimate and will function solely as advisory to Garrick R. Shear, Internal Revenue of the burden of the collection of bodies. Service, room 5244, 1111 Constitution information; (c) ways to enhance the Avenue NW., Washington, DC 20224. quality, utility, and clarity of the The panels are seeking applicants information to be collected; (d) ways to FOR FURTHER INFORMATION CONTACT: who have an interest in good minimize the burden of the collection of Requests for additional information or government, a personal commitment to information on respondents, including copies of the notice should be directed volunteer approximately 300 hours a through the use of automated collection to Larnice Mack, (202) 622–3179, year and a desire to help improve IRS techniques or other forms of information Internal Revenue Service, room 5244, customer Service. Potential candidates technology; and (e) estimates of capital 1111 Constitution Avenue NW., must be U.S. Citizens, compliant with or start-up costs and costs of operation, Washington, DC 20224. Federal, State and Local Taxes, and pass maintenance, and purchase of services a FBI name check. Experience in the SUPPLEMENTARY INFORMATION: to provide information. Title: Nondiscrimination Testing. following areas is helpful: formulating OMB Number: 1545–1579. Approved: January 19, 2001. and presenting proposals; knowledge of Notice Number: Notice 98–1. Garrick R. Shear, taxpayer concerns; experience Abstract: Notice 98–1 provides IRS Reports Clearance Officer. representing the interests of your guidance for discrimination testing [FR Doc. 01–2360 Filed 1–25–01; 8:45 am] community, state or region; working under section 401(k) and (m) of the BILLING CODE 4830–01–P with people from diverse backgrounds; Internal Revenue Code as amended by and helping people resolve disputes. section 1433(c) and (d) of the Small Business Job Protection Act of 1996. The DEPARTMENT OF THE TREASURY Dated: January 11, 2001. guidance is directed to employers John J. Mannion, maintaining retirement plans subject to Internal Revenue Service Director, Program Planning and Quality. these Code sections. Notice of Solicitation of Panel [FR Doc. 01–2361 Filed 1–25–01; 8:45 am] Current Actions: There are no changes Members BILLING CODE 4830–01–P being made to the notice at this time. Type of Review: Extension of a AGENCY: Internal Revenue Service (IRS), currently approved collection. Treasury. VerDate 11 Part II Sentencing Commission Sentencing Guidelines for United States Courts; Notice VerDate 11 SENTENCING COMMISSION session in Washington, DC. The public The proposed amendments are hearing will be held at the Thurgood presented in this notice in one of two Sentencing Guidelines for United Marshall Federal Judiciary Building, formats. First, some of the amendments States Courts One Columbus Circle, NE., Washington, are proposed as specific revisions to a guideline or commentary. Bracketed text AGENCY: United States Sentencing DC 20002–8002. A person who desires within a proposed amendment indicates Commission. to testify at the public hearing should notify Michael Courlander, Public a heightened interest on the ACTION: Notice of (A) proposed Affairs Officer, at (202) 502–4590, not Commission’s part for comment and temporary, emergency amendments to later than March 9, 2001. Written suggestions for alternative policy sentencing guidelines, policy testimony for the public hearing must be choices; for example, a proposed statements, and commentary; (B) received by the Commission not later enhancement of [2] levels indicates that proposed permanent, non-emergency than March 9, 2001. Timely submission the Commission is considering, and amendments to sentencing guidelines, of written testimony is a requirement for invites comment on, alternative policy policy statements, and commentary. testifying at the public hearing. The choices regarding the appropriate level Request for public comment. Notice of Commission requests that, to the extent of enhancement. Similarly, bracketed public hearing. practicable, commentators submit an text within a specific offense SUMMARY: Pursuant to section 994(a), electronic version of the comment and characteristic or application note means (o), and (p) of title 28, United States of the testimony for the public hearing. that the Commission specifically invites Code, and section 3664 of Pub. L. 106– ADDRESSES: Public comment should be comment on whether the proposed 310 (with respect to proposed sent to: United States Sentencing provision is appropriate. Second, the emergency amendment #1), section Commission, One Columbus Circle, NE., Commission has highlighted certain 3611 of Pub. L. 106–310 (with respect to Suite 2–500, Washington, DC 20002– issues for comment and invites proposed emergency amendment #2), 8002, Attention: Public Information. suggestions for how the Commission section 3651 of Pub. L. 106–310 (with should respond to those issues. FOR FURTHER INFORMATION CONTACT: respect to proposed emergency Reports and other additional Michael Courlander, Public Affairs amendment #3), and section 112(b) of information pertaining to the proposed Officer, Telephone: (202) 502–4590. Pub. L. 106–386 (with respect to amendments described in this notice proposed emergency amendment #4) the SUPPLEMENTARY INFORMATION: The may be accessed through the Commission is considering United States Sentencing Commission is Commission’s website at www.ussc.gov. promulgating certain amendments to the an independent agency in the judicial Authority: 28 U.S.C. § 994(a), (o), (p), (x); sentencing guidelines, policy branch of the United States section 112(b) of Pub. L. 106–386; and statements, and commentary. This Government. The Commission sections 3611, 3651, and 3664 of Pub. L. 106– notice sets forth the proposed promulgates sentencing guidelines and 310; USSC Rules of Practice and Procedure, Rules 4.3, 4.4. amendments and, for each proposed policy statements for federal sentencing amendment, a synopsis of the issues courts pursuant to 28 U.S.C. 994(a). The Diana E. Murphy, addressed by that amendment. Commission also periodically reviews Chair. DATES: Written public comment on the and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) Proposed Amendments to the proposed emergency amendments in Sentencing Guidelines part (A) should be received by the and submits guideline amendments to Commission not later than February 5, the Congress not later than the first day Part (A): Proposed Temporary, 2001. Written public comment on the of May each year pursuant to 28 U.S.C. Emergency Amendments and Intent To proposed permanent, non-emergency 994(p). This year, the Commission may Make Permanent Each of the Proposed amendments in part (B), and on the submit non-emergency amendments to Temporary, Emergency Amendments proposed amendments in part (A) for the Congress not later than May 1, 2001. The Commission hereby gives notice purposes of promulgating those The Commission seeks comment on of, and requests comment on, its intent amendments as permanent, non- the proposed amendments, alternative to promulgate each of the proposed emergency amendments, should be proposed amendments, issues for amendments set forth in this Part as a received by the Commission not later comment, and any other aspect of the temporary, emergency amendment and than March 26, 2001. The Commission sentencing guidelines, policy after promulgation as an emergency requests that, to the extent practicable, statements, and commentary. amendment, to promulgate each such commentators submit written public The Commission also requests public amendment as a permanent, non- comment on the proposed permanent, comment regarding whether the emergency amendment. non-emergency amendments not later Commission should specify for than March 9, 2001, in order for the retroactive application to previously Proposed Amendment: Ecstasy Commission to consider that comment sentenced defendants any of the 1. Synopsis of Proposed Amendment: before its public hearing scheduled for proposed, permanent, non-emergency This proposed amendment addresses the March 19–20, 2001 session. Note amendments published in this notice the directive in the Ecstasy Anti- that the Commission may, at its and in the Federal Register notice of Proliferation Act of 2000 (the ‘‘Act’’), February 2001 public meeting, revise November 7, 2000 (see 65 FR 66792). section 3664 of Pub. L. 106–310, which the deadline for submission of written The Commission requests comment instructs the Commission to provide, public comment to provide for an earlier regarding which, if any, of the proposed under emergency amendment authority, deadline than the deadline published in non-emergency amendments that may increased penalties for the manufacture, this notice. See USSC Rules of Practice result in a lower guideline range should importation, exportation, or trafficking and Procedure, Rule 1.2. be made retroactive to previously of Ecstasy. The directive specifically The Commission plans to hold a sentenced defendants pursuant to requires the Commission to increase the public hearing on the proposed § 1B1.10 (Reduction in Term of base offense level for 3,4- permanent, non-emergency Imprisonment as a Result of Amended methylenedioxy methamphetamine amendments during its March 2001 Guideline Range). (MDMA), 3,4-methylenedioxy VerDate 11 amphetamine (MDA), 3,4- the Commission alternatively treat manner; (C) share similar methods of methylenedioxy-N-ethylamphetamine Ecstasy comparably to some other major use; (D) affect the same parts of the (MDEA), paramethoxy- drug of abuse? For example, should the brain; and (E) have similar intoxicating methamphetamine (PMA), and any Commission treat Ecstasy as being of effects. Both options also distinguish other controlled substance that is comparable seriousness to powder between pure amphetamine (i.e., marketed as Ecstasy and that has either cocaine (which would result in a amphetamine (actual)) and a chemical structure similar to MDMA marihuana equivalency for Ecstasy of amphetamine mixture in the same or an effect on the central nervous 200 gm) or methamphetamine mixture manner, and at the same quantities, as system substantially similar to or greater (which would result in a marihuana pure methamphetamine (i.e., than MDMA. equivalency for Ecstasy of 2 kg)? Or methamphetamine (actual) and The proposed amendment addresses should the penalty be comparable to methamphetamine mixture). the directive by amending the Drug that for mescaline (which would result Equivalency Table in § 2D1.1, in a marihuana equivalency for Ecstasy Although both options ultimately Application Note 10, to increase the of 10 gm) or some multiple of the achieve the same penalty increase, the marihuana equivalencies for the penalty for mescaline? Comment also is proposed options differ in how they specified controlled substances. The requested regarding whether the Drug implement the directive. Option One increased equivalencies make the Quantity Table in § 2D1.1 should be amends the Drug Equivalency Table of penalties for these substances revised with respect to Ecstacy to § 2D1.1 (Unlawful Manufacturing, comparable to other drugs of abuse. The provide additional incremental Importing, Exporting, or Trafficking increases also satisfy the sense of penalties (perhaps with exponential (Including Possession with Intent to Congress in the Act that the penalties quantity increases) so as to punish more Commit These Offenses); Attempt or for these substances, particularly for severely those offenders who traffic in Conspiracy). To determine the offense high-level traffickers, are too low. larger quantities. level under this option, the quantity of An issue for comment regarding Proposed Amendment: Amphetamine amphetamine (actual or mixture) is whether the Commission should base converted to its marijuana weight the penalties of Ecstasy on the penalties 2. Synopsis of Proposed Amendment: equivalency using the Drug Equivalency for other drugs of abuse, such as powder This proposed amendment implements Tables. Option Two, on the other hand, the directive in the Methamphetamine cocaine, methamphetamine mixture, or amends § 2D1.1 specifically to include mescaline follows the proposed Anti-Proliferation Act of 2000, section amphetamine in the Drug Quantity amendment. 3611 of Pub. L. 106–310 (the ‘‘Act’’), Table. which directs the Commission to Proposed Amendment provide, under emergency amendment Included in both options is a The Commentary to § 2D1.1 captioned authority, increased guideline penalties reference to the controlled substance ‘‘Application Notes’’ is amended in for amphetamine such that those dextroamphetamine, which is a Note 10 in the Drug Equivalency Tables penalties are comparable to the base substance quite similar to amphetamine. in the subdivision captioned ‘‘LSD, PCP, offense level for methamphetamine. Currently, dextroamphetamine has the and Other Schedule I and II There are no mandatory minimum same marihuana equivalency as Hallucinogens (and their immediate sentences for amphetamine offenses. amphetamine mixture. The proposed precursors)*’’ in the line referenced to Currently, a quantity of amphetamine is amendment (A) distinguishes between ‘‘MDA’’ by striking ‘‘50 gm’’ and sentenced at the same level as an equal dextroamphetamine mixture and inserting ‘‘1 kg’’; in the line referenced quantity of powder cocaine. That is, dextroamphetamine (actual); and (B) to ‘‘MDMA’’ by striking ‘‘35 gm’’ and with no or minimal criminal history, an provides penalties for the inserting ‘‘1 kg’’; in the line referenced offender convicted of trafficking 500 dextroamphetamine mixture and ‘‘MDEA’’ by striking ‘‘30 gm’’ and grams of amphetamine would receive a dextroamphetamine (actual) that are the inserting ‘‘1 kg’’; and by inserting ‘‘1 gm guideline range of 63 to 78 months, same as amphetamine mixture and of Paramethoxymethamphetamine/PMA based solely on the weight of the drug. amphetamine (actual), respectively. = 1 kg of marihuana’’ after the line A weight of 5,000 grams (5 kilograms), referenced to ‘‘MDEA’’. and the lowest criminal history Two issues for comment follows the Issue for Comment: It has been category, would result in a sentencing proposed amendment. The first requests represented to the Commission that range of 121 to 151 months. The comment regarding whether the Ecstasy (i.e., MDMA, MDEA, MDA and mathematical relationships between the Commission should provide an PMA) is similar in its hallucinogenic weight of amphetamine and the current alternative quantity ratio between effect on the user to mescaline, and also five- and ten-year quantity thresholds amphetamine and methamphetamine. has been described as having an added for methamphetamine-mix and The second requests comment regarding stimulant component that can elevate methamphetamine-actual are 10-to-1 whether § 2D1.1(b)(4) should be heart rate, blood pressure, and body and 100-to-1, respectively. amended to include amphetamine and temperature. It has also been suggested The proposed amendment provides dextroamphetamine. that the drug is neither physically nor two options for implementing the psychologically addictive. The directive. Both options propose to treat Proposed Amendment Commission invites comment on these amphetamine and methamphetamine Option 1 representations and on the appropriate identically, at a 1:1 ratio (i.e., the same penalty structure for Ecstasy. The quantities of amphetamine and The Commentary to § 2D1.1 captioned proposed amendment treats Ecstasy as methamphetamine would result in the ‘‘Application Notes’’ is amended in being of comparable seriousness to same base offense level) because of the Note 10 in the Drug Equivalency Tables heroin, providing a marihuana similarities of the two substances. in the subdivision captioned ‘‘Cocaine equivalency for Ecstasy that is the same Specifically, amphetamine and and Other Schedule I and II Stimulants as heroin. Accordingly, for sentencing methamphetamine (A) chemically are (and their immediate precursors)*’’ by purposes, 1 gm of Ecstasy will be the similar; (B) are produced by a similar striking ‘‘200 gm’’ after ‘‘1 gm of equivalent of 1 kg of marihuana. Should method, and are trafficked in a similar Amphetamine =’’ and inserting ‘‘2 kg’’; VerDate 11 by inserting ‘‘1 gm of Amphetamine Section 2D1.1(c)(7) is amended by 250 MG but less than 500 MG of (Actual) = 20 kg of marihuana’’ after the inserting after the fifth entry the Dextraomphetamine (actual);’’. line referenced to ‘‘Amphetamine’’; by following: Section 2D1.1(c)(14) is amended by striking ‘‘200 gm’’ after ‘‘1 gm of ‘‘At least 50 G but less than 200 G of inserting after the fifth entry the Dextroamphetamine =’’ and inserting ‘‘2 Amphetamine, or at least 5 G but less following: kg’’; and by inserting ‘‘1 gm of than 20 G of Amphetamine (actual), or ‘‘Less than 2.5 G of Amphetamine, or Dextroamphetamine (Actual) = 20 kg of at least 50 G but less than 200 G of less than 250 MG of Amphetamine marihuana’’ after the line referenced to Dextroamphetamine, or at least 5 G but (actual), or less than 2.5 G of ‘‘Dextroamphetamine’’. less than 20 G of Dextroamphetamine Dextroamphetamine, or less than 250 (actual);’’. MG of Dextraomphetamine (actual);’’. Option 2 Section 2D1.1(c)(8) is amended by Section 2D1.1(c) is amended in Note Section 2D1.1(c)(1) is amended by inserting after the fifth entry the (B) of the ‘‘Notes to Drug Quantity inserting after the fifth entry the following: Table’’, by inserting ‘‘, ‘‘Amphetamine following: ‘‘At least 40 G but less than 50 G of (actual), ‘‘Dextroamphetamine ‘‘15 KG or more of Amphetamine, or Amphetamine, or at least 4 G but less (actual)’,’’ after ‘‘terms ‘‘PCP (actual)’’; 1.5 KG or more of Amphetamine than 5 G of Amphetamine (actual), or at by inserting ‘‘, amphetamine, (actual), or 15 KG or more of least 40 G but less than 50 G of dextroamphetamine,’’ after ‘‘substance Dextroamphetamine, or 1.5 KG or more Dextroamphetamine, or at least 4 G but containing PCP’’; and by inserting ‘‘, of Dextroamphetamine (actual);’’. less than 5 G of Dextroamphetamine amphetamine (actual), Section 2D1.1(c)(2) is amended by (actual);’’. dextroamphetamine (actual),’’ after inserting after the fifth entry the Section 2D1.1(c)(9) is amended by ‘‘weight of the PCP (actual)’’. The Commentary to § 2D1.1 captioned following: inserting after the fifth entry the ‘‘Application Notes’’ is amended in ‘‘At least 5 KG but less than 15 KG of following: Note 9 by inserting ‘‘, amphetamine, Amphetamine, or at least 500 G but less ‘‘At least 30 G but less than 40 G of dextroamphetamine,’’ after ‘‘PCP’’. than 1.5 KG of Amphetamine (actual), or Amphetamine, or at least 3 G but less at least 5 KG but less than 15 KG of The Commentary to § 2D1.1 captioned than 4 G of Amphetamine (actual), or at ‘‘Application Notes’’ is amended in Dextroamphetamine, or at least 500 G least 30 G but less than 40 G of but less than 1.5 KG of Note 10 in the Drug Equivalency Tables Dextroamphetamine, or at least 3 G but in the subdivision captioned ‘‘Cocaine Dextroamphetamine (actual);’’. less than 4 G of Dextroamphetamine Section 2D1.1(c)(3) is amended by and Other Schedule I and II Stimulants (actual);’’. inserting after the fifth entry the (and their immediate precursors)’’ by Section 2D1.1(c)(10) is amended by following: striking ‘‘200 gm’’ after ‘‘1 gm of ‘‘At least 1.5 KG but less than 5 KG inserting after the fifth entry the Amphetamine = and inserting ‘‘2 kg’’; of Amphetamine, or at least 150 G but following: by inserting ‘‘1 gm of Amphetamine less than 500 G of Amphetamine ‘‘At least 20 G but less than 30 G of (Actual) = 20 kg of marihuana’’ after the (actual), or at least 1.5 KG but less than Amphetamine, or at least 2 G but less line referenced to ‘‘Amphetamine’’; by 5 KG of Dextroamphetamine, or at least than 3 G of Amphetamine (actual), or at striking ‘‘200 gm’’ after ‘‘1 gm of 150 G but less than 500 G of least 20 G but less than 30 G of Dextroamphetamine =’’ and inserting ‘‘2 Dextroamphetamine (actual);’’. Dextroamphetamine or at least 2 G but kg’’; and by inserting ‘‘1 gm of Section 2D1.1(c)(4) is amended by less than 3 G of Dextroamphetamine Dextroamphetamine (Actual) = 20 kg of inserting after the fifth entry the (actual);’’. marihuana’’ after the line referenced to following: Section 2D1.1(c)(11) is amended by ‘‘Dextramphetamine’’. ‘‘At least 500 G but less than 1.5 KG inserting after the fifth entry the Issues for Comment of Amphetamine, or at least 50 G but following: less than 150 G of Amphetamine ‘‘At least 10 G but less than 20 G of (1) In response to the directive in the (actual), or at least 500 G but less than Amphetamine, or at least 1 G but less Methamphetamine Anti-Proliferation 1.5 KG of Dextroamphetamine, or at than 2 G of Amphetamine (actual), or at Act of 2000 that instructs the least 50 G but less than 150 G of least 10 G but less than 20 G of Commission to provide, under Dextroamphetamine (actual);’’. Dextroamphetamine, or at least 1 G but emergency amendment authority, Section 2D1.1(c)(5) is amended by less than 2 G of Dextroamphetamine increased guideline penalties for inserting after the fifth entry the (actual);’’. amphetamine such that those penalties following: Section 2D1.1(c)(12) is amended by are comparable to the base offense level ‘‘At least 350 G but less than 500 G inserting after the fifth entry the for methamphetamine, the Commission of Amphetamine, or at least 35 G but following: has proposed two amendment options less than 50 G of Amphetamine (actual), ‘‘At least 5 G but less than 10 G of that use a 1:1 ratio between or at least 350 G but less than 500 G of Amphetamine, or at least 500 MG but amphetamine and methamphetamine Dextroamphetamine, or at least 35 G but less than 1 G of Amphetamine (actual), (i.e., the same quantities of less than 50 G of Dextroamphetamine or at least 5 G but less than 10 G of amphetamine and methamphetamine (actual);’’. Dextroamphetamine, or at least 500 MG will result in the imposition of the same Section 2D1.1(c)(6) is amended by but less than 1 G of Dextroamphetamine base offense level from the Drug inserting after the fifth entry the (actual);’’. Quantity Table in § 2D1.1). The following: Section 2D1.1(c)(13) is amended by Commission invites comment on ‘‘At least 200 G but less than 350 G inserting after the fifth entry the whether some alternative ratio should of Amphetamine, or at least 20 G but following: be used. For example, should the less than 35 G of Amphetamine (actual), ‘‘At least 2.5 G but less than 5 G of Commission use a 2:1 ratio or a 5:1 ratio or at least 200 G but less than 350 G of Amphetamine, or at least 250 MG but between amphetamine and Dextroamphetamine, or at least 20 G but less than 500 MG of Amphetamine methamphetamine, and if so, why? less than 35 G of Dextroamphetamine (actual), or at least 2.5 G but less than (2) Section 2D1.1(b)(4) currently (actual);’’. 5 G of Dextroamphetamine, or at least provides a two-level enhancement if the VerDate 11 offense involved the importation of of level 38 increases the sentences for web site of the Office of National Drug methamphetamine or the manufacture ephedrine, pseudoephedrine, and PPA Control Policy (ONDCP). These data of methamphetamine from listed by linking the theoretical yield of these indicate that the actual yield of chemicals that the defendant knew were chemicals to methamphetamine (actual) methamphetamine from ephedrine and imported unlawfully. The Commission instead of methamphetamine (mixture) pseudoephedrine is ‘‘typically in the invites comment regarding whether this as had been done in the past. range of 50 to 75 percent’’. enhancement should be amended to Additionally, this adjustment will have Third, the directive instructs the include the importation of amphetamine an impact on the relationship between Commission ‘‘to increase penalties for or the manufacture of amphetamine §§ 2D1.1 and 2D1.11 by eliminating the offenses involving any List I chemical from listed chemicals that the defendant six-level distinction that currently exists other than ephedrine, PPA, and knew were imported unlawfully. If so, between offenses that involve pseudoephedrine, such that those should the Commission also include the possession of these precursor chemicals penalties reflect the dangerous nature of importation of dextroamphetamine or with intent to manufacture the manufacture of dextroamphetamine methamphetamine and offenses that such offenses, the need for aggressive from listed chemicals that the defendant involve an attempt to manufacture law enforcement action to fight such knew were imported unlawfully, methamphetamine, at least for offenses offenses, and the extreme dangers particularly because involving ephedrine, PPA, and associated with unlawful activity dextroamphetamine is so similar to pseudoephedrine. involving methamphetamine and amphetamine and would be treated the In order to address cases that involve amphetamine.’’ In response to this same as amphetamine under the more than one chemical, the proposed directive, the proposed amendment proposed amendment options? amendment eliminates the ephedrine increases the base offense level for equivalency table and instead proposes Benzaldehyde, Hydriodic Acid, Proposed Amendment: Trafficking in a rule that would require the court to Methylamine, Nitroethane, and List I Chemicals determine the base offense level by Norpseudoephedrine by two levels. 3. Synopsis of Proposed Amendment: using the quantity of the single chemical These five additional List I chemicals This proposed amendment addresses that results in the greatest base offense also are associated with the three-part directive in the level. An upward departure is provided methamphetamine and amphetamine Methamphetamine Anti-Proliferation for cases in which the offense level does production. The maximum base offense Act of 2000, section 3651 of Pub. L. not adequately address the seriousness level for these five chemicals will 106–310 (the ‘‘Act’’), regarding of the offense. increase from level 30 to level 32. All enhanced punishment for trafficking in However, the proposed amendment other List I chemicals will remain at List I chemicals. That section requires provides an exception to this rule for their current maximum base offense the Commission to promulgate an offenses that involve a combination of level of level 30. amendment implementing the directive ephedrine, pseudoephedrine, or An issue for comment follows the under emergency amendment authority. phenylpropanolamine because these proposed amendment regarding First, the directive instructs the chemicals often are used in the same whether, as an alternative, the Commission ‘‘to provide increased manufacturing process. In a case that maximum base offense level in the penalties for offenses involving involves two or more of these proposed Ephedrine, Pseudoephedrine, ephedrine, phenylpropanolamine (PPA), chemicals, the base offense level will be Phenylpropanolamine Table in § 2D1.11 or pseudoephedrine (including their determined using the total quantity of should be set lower than the maximum salts, optical isomers, and salts of the chemicals involved, based on an base offense level in § 2D1.1. This optical isomers) to correspond to the ephedrine equivalency. quantity of controlled substance that Second, the directive instructs the reduction would maintain the existing reasonably could have been Commission ‘‘to establish, based on distinction between offenses involving manufactured using the quantity of scientific, law enforcement, and other possession of precursor chemicals with ephedrine, PPA, and pseudoephedrine data the Commission considers intent to manufacture versus attempt to possessed or distributed.’’ In response to appropriate, a table in which the manufacture for ephedrine, PPA, and this directive, the proposed amendment quantity of controlled substance that pseudoephedrine currently captured by provides a new chemical table could reasonably have been the maximum base offense level of 30 in specifically for ephedrine, manufactured shall be determined by § 2D1.11. The original relationship pseudoephedrine, and PPA. The table using a table of manufacturing between controlled substances in ties the base offense levels for these conversion ratios for ephedrine, PPA, § 2D1.1 and list I chemicals in § 2D1.11 chemicals to the base offense levels for and pseudoephedrine.’’ In response to presumed a 50 percent yield of methamphetamine (actual) set forth in the directive, the proposed amendment controlled substances from each § 2D1.1, assuming a 50 percent yield of adds to the Drug Equivalency Tables in chemical and then reduced the entire the controlled substance from the § 2D1.1 a conversion table for table by eight levels. The eight level chemicals. Methamphetamine (actual) is ephedrine, PPA, and pseudoephedrine distinction later was reduced to six used rather than methamphetamine for cases that are cross-referenced out of levels in response to a congressional mixture because ephedrine, PPA, and § 2D1.11 because the offense involved directive. pseudoephedrine produce the manufacture of methamphetamine. Proposed Amendment methamphetamine (actual). This table, which provides for a 50 This new table has a maximum base percent conversion ratio for ephedrine, Section 2D1.11(d) is amended by offense level of level 38 (as opposed to PPA, and pseudoephedrine, was striking the Chemical Quantity Table a maximum base offense level of 30 for developed using data from the Drug and the Notes that follow the Table in all other precursor chemicals). Enforcement Agency, Office of their entirety and inserting the Providing a maximum base offense level Diversion Control, as published on the following: VerDate 11 (D)(1) EPHEDRINE, PSEUDOEPHEDRINE, AND PHENYLPROPANOLAMINE QUANTITY TABLE* [Methamphetamine and amphetamine precursor chemicals] Base offense Quantity level (1) 3 KG or more of Ephedrine; 3 KG or more of Phenylpropanolamine; 3 KG or more of Pseudoephedrine ...... Level 38. (2) At least 1 KG but less than 3 KG of Ephedrine; At least 1 KG but less than 3 KG of Phenylpropanolamine; At least 1 KG Level 36. but less than 3 KG of Pseudoephedrine. (3) At least 300 G but less than 1 KG of Ephedrine; At least 300 G but less than 1 KG of Phenylpropanolamine; At least 300 Level 34. G but less than 1 KG of Pseudoephedrine. (4) At least 100 G but less than 300 G of Ephedrine; At least 100 G but less than 300 G of Phenylpropanolamine; At least Level 32. 100 G but less than 300 G of Pseudoephedrine. (5) At least 70 G but less than 100 G of Ephedrine; At least 70 G but less than 100 G of Phenylpropanolamine; At least 70 G Level 30. but less than 100 G of Pseuodoephedrine. (6) At least 40 G but less than 70 G of Ephedrine; At least 40 G but less than 70 G of Phenylpropanolamine; At least 40 G Level 28. but less than 70 G of Pseudoephedrine. (7) At least 10 G but less than 40 G of Ephedrine; At least 10 G but less than 40 G of Phenylpropanolamine; At least 10 G Level 26. but less than 40 G of Pseudoephedrine. (8) At least 8 G but less than 10 G of Ephedrine; At least 8 G but less than 10 G of Phenylpropanolamine; At least 8 G but Level 24. less than 10 G of Pseudoephedrine. (9) At least 6 G but less than 8 G of Ephedrine; At least 6 G but less than 8 G of Phenylpropanolamine; At least 6 G but less Level 22. than 8 G of Pseudoephedrine. (10) At least 4 G but less than 6 G of Ephedrine; At least 4 G but less than 6 G of Phenylpropanolamine; At least 4 G but Level 20. less than 6 G of Pseudoephedrine. (11) At least 2 G but less than 4 G of Ephedrine; At least 2 G but less than 4 G of Phenylpropanolamine; At least 2 G but Level 18. less than 4 G of Pseudoephedrine. (12) At least 1 G but less than 2 G of Ephedrine; At least 1 G but less than 2 G of Phenylpropanolamine; At least 1 G but Level 16. less than 2 G of Pseudoephedrine. (13) At least 500 MG but less than 1 G of Ephedrine; At least 500 MG but less than 1 G of Phenylpropanolamine; At least Level 14. 500 MG but less than 1 G of Pseudoephedrine. (14) Less than 500 MG of Ephedrine; Less than 500 MG of Phenylpropanolamine; Less than 500 MG of Pseudoephedrine .... Level 12 (D)(2) CHEMICAL QUANTITY TABLE * [All other precursor chemicals] Base offense Listed chemicals and quantity level (1) List I Chemicals: ...... Level 32. 51 KG or more of Benzaldehyde; 132 KG or more of Hydriodic Acid; 12 KG or more of Methylamine; 37.8 KG or more of Nitroethane; 600 KG or more of Norpseudoephedrine. (2) List I Chemicals: ...... Level 30. At least 17 KG but less than 51 KG of Benzaldehyde; 20 KG or more of Benzyl Cyanide; 200 G or more of Ergonovine; 400 G or more of Ergotamine; 20 KG or more of Ethylamine; At least 44 KG but less than 132 KG of Hydriodic Acid; 320 KG or more of Isosafrole; At least 4 KG but less than 12 KG of Methylamine; 500 KG or more of N-Methylephedrine; 500 KG or more of N-Methylpseudoephedrine; At least 12.6 KG but less than 37.8 KG of Nitroethane; At least 200 KG but less than 600 KG of Norpseudoephedrine; 20 KG or more of Phenylacetic Acid; 10 KG or more of Piperidine; 320 KG or more of Piperonal; 1.6 KG or more of Propionic Anhydride; 320 KG or more of Safrole; 400 KG or more of 3, 4-Methylenedioxyphenyl-2-propanone. (3) List I Chemicals: ...... Level 28. At least 5.3 KG but less than 17.8 KG of Benzaldehyde; At least 6 KG but less than 20 KG of Benzyl Cyanide; At least 60 G but less than 200 G of Ergonovine; At least 120 G but less than 400 G of Ergotamine; At least 6 KG but less than 20 KG of Ethylamine; At least 13.2 KG but less than 44 KG of Hydriodic Acid; At least 96 KG but less than 320 KG of Isosafrole; At least 1.2 KG but less than 4 KG of Methylamine; At least 150 KG but less than 500 KG of N-Methylephedrine; At least 150 KG but less than 500 KG of N-Methylpseudoephedrine; VerDate 11 (D)(2) CHEMICAL QUANTITY TABLE *—Continued [All other precursor chemicals] Base offense Listed chemicals and quantity level At least 3.8 KG but less than 12.6 KG of Nitroethane; At least 60 KG but less than 200 KG of Norpseudoephedrine; At least 6 KG but less than 20 KG of Phenylacetic Acid; At least 3 KG but less than 10 KG of Piperidine; At least 96 KG but less than 320 KG of Piperonal; At least 480 G but less than 1.6 KG of Propionic Anhydride; At least 96 KG but less than 320 KG of Safrole; At least 120 KG but less than 400 KG of 3, 4-Methylenedioxyphenyl-2-propanone; List II Chemicals: 11 KG or more of Acetic Anhydride; 1175 KG or more of Acetone; 20 KG or more of Benzyl Chloride; 1075 KG or more of Ethyl Ether; 1200 KG or more of Methyl Ethyl Ketone; 10 KG or more of Potassium Permanganate; 1300 KG or more of Toluene. (4) List I Chemicals: ...... Level 26. At least 1.8 KG but less than 5.3 KG of Benzaldehyde; At least 2 KG but less than 6 KG of Benzyl Cyanide; At least 20 G but less than 60 G of Ergonovine; At least 40 G but less than 120 G of Ergotamine; At least 2 KG but less than 6 KG of Ethylamine; At least 4.4 KG but less than 13.2 KG of Hydriodic Acid; At least 32 KG but less than 96 KG of Isosafrole; At least 400 G but less than 1.2 KG of Methylamine; At least 50 KG but less than 150 KG of N-Methylephedrine; At least 50 KG but less than 150 KG of N-Methylpseudoephedrine; At least 1.3 KG but less than 3.8 KG of Nitroethane; At least 20 KG but less than 60 KG of Norpseudoephedrine; At least 2 KG but less than 6 KG of Phenylacetic Acid; At least 1 KG but less than 3 KG of Piperidine; At least 32 KG but less than 96 KG of Piperonal; At least 160 G but less than 480 G of Propionic Anhydride; At least 32 KG but less than 96 KG of Safrole; At least 40 KG but less than 120 KG of 3, 4-Methylenedioxyphenyl-2-propanone; List II Chemicals: At least 3.3 KG but less than 11 KG of Acetic Anhydride; At least 352.5 KG but less than 1175 KG of Acetone; At least 6 KG but less than 20 KG of Benzyl Chloride; At least 322.5 KG but less than 1075 KG of Ethyl Ether; At least 360 KG but less than 1200 KG of Methyl Ethyl Ketone; At least 3 KG but less than 10 KG of Potassium Permanganate; At least 390 KG but less than 1300 KG of Toluene. (5) List I Chemicals: ...... Level 24. At least 1.2 KG but less than 1.8 KG of Benzaldehyde; At least 1.4 KG but less than 2 KG of Benzyl Cyanide; At least 14 G but less than 20 G of Ergonovine; At least 28 G but less than 40 G of Ergotamine; At least 1.4 KG but less than 2 KG of Ethylamine; At least 3.08 KG but less than 4.4 KG of Hydriodic Acid; At least 22.4 KG but less than 32 KG of Isosafrole; At least 280 G but less than 400 G of Methylamine; At least 35 KG but less than 50 KG of N-Methylephedrine; At least 35 KG but less than 50 KG of N-Methylpseudoephedrine; At least 879 G but less than 1.3 KG of Nitroethane; At least 14 KG but less than 20 KG of Norpseudoephedrine; At least 1.4 KG but less than 2 KG of Phenylacetic Acid; At least 700 G but less than 1 KG of Piperidine; At least 22.4 KG but less than 32 KG of Piperonal; At least 112 G but less than 160 G of Propionic Anhydride; At least 22.4 KG but less than 32 KG of Safrole; At least 28 KG but less than 40 KG of 3, 4-Methylenedioxyphenyl-2-propanone; List II Chemicals: At least 1.1 KG but less than 3.3 KG of Acetic Anhydride; At least 117.5 KG but less than 352.5 KG of Acetone; At least 2 KG but less than 6 KG of Benzyl Chloride; At least 107.5 KG but less than 322.5 KG of Ethyl Ether; At least 120 KG but less than 360 KG of Methyl Ethyl Ketone; At least 1 KG but less than 3 KG of Potassium Permanganate; At least 130 KG but less than 390 KG of Toluene. VerDate 11 (D)(2) CHEMICAL QUANTITY TABLE *—Continued [All other precursor chemicals] Base offense Listed chemicals and quantity level (6) List I Chemicals: ...... Level 22. At least 712 G but less than 1.2 KG of Benzaldehyde; At least 800 G but less than 1.4 KG of Benzyl Cyanide; At least 8 G but less than 14 G of Ergonovine; At least 16 G but less than 28 G of Ergotamine; At least 800 G but less than 1.4 KG of Ethylamine; At least 1.76 KG but less than 3.08 KG of Hydriodic Acid; At least 12.8 KG but less than 22.4 KG of Isosafrole; At least 160 G but less than 280 G of Methylamine; At least 20 KG but less than 35 KG of N-Methylephedrine; At least 20 KG but less than 35 KG of N-Methylpseudoephedrine; At least 503 G but less than 879 G of Nitroethane; At least 8 KG but less than 14 KG of Norpseudoephedrine; At least 800 G but less than 1.4 KG of Phenylacetic Acid; At least 400 G but less than 700 G of Piperidine; At least 12.8 KG but less than 22.4 KG of Piperonal; At least 64 G but less than 112 G of Propionic Anhydride; At least 12.8 KG but less than 22.4 KG of Safrole; At least 16 KG but less than 28 KG of 3, 4-Methylenedioxyphenyl-2-propanone; List II Chemicals: At least 726 G but less than 1.1 KG of Acetic Anhydride; At least 82.25 KG but less than 117.5 KG of Acetone; At least 1.4 KG but less than 2 KG of Benzyl Chloride; At least 75.25 KG but less than 107.5 KG of Ethyl Ether; At least 84 KG but less than 120 KG of Methyl Ethyl Ketone; At least 700 G but less than 1 KG of Potassium Permanganate; At least 91 KG but less than 130 KG of Toluene. (7) List I Chemicals: ...... Level 20. At least 178 G but less than 712 G of Benzaldehyde; At least 200 G but less than 800 G of Benzyl Cyanide; At least 2 G but less than 8 G of Ergonovine; At least 4 G but less than 16 G of Ergotamine; At least 200 G but less than 800 G of Ethylamine; At least 440 G but less than 1.76 KG of Hydriodic Acid; At least 3.2 KG but less than 12.8 KG of Isosafrole; At least 40 G but less than 160 G of Methylamine; At least 5 KG but less than 20 KG of N-Methylephedrine; At least 5 KG but less than 20 KG of N-Methylpseudoephedrine; At least 126 G but less than 503 G of Nitroethane; At least 2 KG but less than 8 KG of Norpseudoephedrine; At least 200 G but less than 800 G of Phenylacetic Acid; At least 100 G but less than 400 G of Piperidine; At least 3.2 KG but less than 12.8 KG of Piperonal; At least 16 G but less than 64 G of Propionic Anhydride; At least 3.2 KG but less than 12.8 KG of Safrole; At least 4 KG but less than 16 KG of 3,4-Methylenedioxyphenyl-2-propanone; List II Chemicals: At least 440 G but less than 726 G of Acetic Anhydride; At least 47 KG but less than 82.25 KG of Acetone; At least 800 G but less than 1.4 KG of Benzyl Chloride; At least 43 KG but less than 75.25 KG of Ethyl Ether; At least 48 KG but less than 84 KG of Methyl Ethyl Ketone; At least 400 G but less than 700 G of Potassium Permanganate; At least 52 KG but less than 91 KG of Toluene. (8) List I Chemicals: ...... Level 18. At least 142 G but less than 178 G of Benzaldehyde; At least 160 G but less than 200 G of Benzyl Cyanide; At least 1.6 G but less than 2 G of Ergonovine; At least 3.2 G but less than 4 G of Ergotamine; At least 160 G but less than 200 G of Ethylamine; At least 352 G but less than 440 G of Hydriodic Acid; At least 2.56 KG but less than 3.2 KG of Isosafrole; At least 32 G but less than 40 G of Methylamine; At least 4 KG but less than 5 KG of N-Methylephedrine; At least 4 KG but less than 5 KG of N-Methylpseudoephedrine; At least 100 G but less than 126 G of Nitroethane; At least 1.6 KG but less than 2 KG of Norpseudoephedrine; At least 160 G but less than 200 G of Phenylacetic Acid; At least 80 G but less than 100 G of Piperidine; At least 2.56 KG but less than 3.2 KG of Piperonal; VerDate 11 (D)(2) CHEMICAL QUANTITY TABLE *—Continued [All other precursor chemicals] Base offense Listed chemicals and quantity level At least 12.8 G but less than 16 G of Propionic Anhydride; At least 2.56 KG but less than 3.2 KG of Safrole; At least 3.2 KG but less than 4 KG of 3,4-Methylenedioxyphenyl-2-propanone; List II Chemicals: At least 110 G but less than 440 G of Acetic Anhydride; At least 11.75 KG but less than 47 KG of Acetone; At least 200 G but less than 800 G of Benzyl Chloride; At least 10.75 KG but less than 43 KG of Ethyl Ether; At least 12 KG but less than 48 KG of Methyl Ethyl Ketone; At least 100 G but less than 400 G of Potassium Permanganate; At least 13 KG but less than 52 KG of Toluene. (9) List I Chemicals: ...... Level 16. 3.6 KG or more of Anthranilic Acid; At least 107 G but less than 142 G of Benzaldehyde; At least 120 G but less than 160 G of Benzyl Cyanide; At least 1.2 G but less than 1.6 G of Ergonovine; At least 2.4 G but less than 3.2 G of Ergotamine; At least 120 G but less than 160 G of Ethylamine; At least 264 G but less than 352 G of Hydriodic Acid; At least 1.92 KG but less than 2.56 KG of Isosafrole; At least 24 G but less than 32 G of Methylamine; 4.8 KG or more of N-Acetylanthranilic Acid; At least 3 KG but less than 4 KG of N-Methylephedrine; At least 3 KG but less than 4 KG of N-Methylpseudoephedrine; At least 75 G but less than 100 G of Nitroethane; At least 1.2 KG but less than 1.6 KG of Norpseudoephedrine; At least 120 G but less than 160 G of Phenylacetic Acid; At least 60 G but less than 80 G of Piperidine; At least 1.92 KG but less than 2.56 KG of Piperonal; At least 9.6 G but less than 12.8 G of Propionic Anhydride; At least 1.92 KG but less than 2.56 KG of Safrole; At least 2.4 KG but less than 3.2 KG of 3,4-Methylenedioxyphenyl-2-propanone; List II Chemicals: At least 88 G but less than 110 G of Acetic Anhydride; At least 9.4 KG but less than 11.75 KG of Acetone; At least 160 G but less than 200 G of Benzyl Chloride; At least 8.6 KG but less than 10.75 KG of Ethyl Ether; At least 9.6 KG but less than 12 KG of Methyl Ethyl Ketone; At least 80 G but less than 100 G of Potassium Permanganate; At least 10.4 KG but less than 13 KG of Toluene. (10) List I Chemicals: ...... Level 14. At least 2.7 KG but less than 3.6 KG of Anthranilic Acid; At least 71.2 G but less than 107 G of Benzaldehyde; At least 80 G but less than 120 G of Benzyl Cyanide; At least 800 MG but less than 1.2 G of Ergonovine; At least 1.6 G but less than 2.4 G of Ergotamine; At least 80 G but less than 120 G of Ethylamine; At least 176 G but less than 264 G of Hydriodic Acid; At least 1.44 KG but less than 1.92 KG of Isosafrole; At least 16 G but less than 24 G of Methylamine; At least 3.6 KG but less than 4.8 KG of N-Acetylanthranilic Acid; At least 2.25 KG but less than 3 KG of N-Methylephedrine; At least 2.25 KG but less than 3 KG of N-Methylpseudoephedrine; At least 56.25 G but less than 75 G of Nitroethane; At least 800 G but less than 1.2 KG of Norpseudoephedrine; At least 80 G but less than 120 G of Phenylacetic Acid; At least 40 G but less than 60 G of Piperidine; At least 1.44 KG but less than 1.92 KG of Piperonal; At least 7.2 G but less than 9.6 G of Propionic Anhydride; At least 1.44 KG but less than 1.92 KG of Safrole; At least 1.8 KG but less than 2.4 KG of 3, 4-Methylenedioxyphenyl-2-propanone; List II Chemicals: At least 66 G but less than 88 G of Acetic Anhydride; At least 7.05 KG but less than 9.4 KG of Acetone; At least 120 G but less than 160 G of Benzyl Chloride; At least 6.45 KG but less than 8.6 KG of Ethyl Ether; At least 7.2 KG but less than 9.6 KG of Methyl Ethyl Ketone; At least 60 G but less than 80 G of Potassium Permanganate; At least 7.8 KG but less than 10.4 KG of Toluene. (11) List I Chemicals: VerDate 11 (D)(2) CHEMICAL QUANTITY TABLE *—Continued [All other precursor chemicals] Base offense Listed chemicals and quantity level Less than 2.7 KG of Anthranilic Acid; Less than 71.2 G of Benzaldehyde; Less than 80 G of Benzyl Cyanide; Less than 800 MG of Ergonovine; Less than 1.6 G of Ergotamine; Less than 80 G of Ethylamine; Less than 176 G of Hydriodic Acid; Less than 1.44 KG of Isosafrole; Less than 16 G of Methylamine; Less than 3.6 KG of N-Acetylanthranilic Acid; Less than 2.25 KG of N-Methylephedrine; Less than 2.25 KG of N-Methylpseudoephedrine; Less than 56.25 G of Nitroethane; Less than 800 G of Norpseudoephedrine; Less than 80 G of Phenylacetic Acid; Less than 40 G of Piperidine; Less than 1.44 KG of Piperonal; Less than 7.2 G of Propionic Anhydride; Less than 1.44 KG of Safrole; Less than 1.8 KG of 3, 4-Methylenedioxyphenyl-2-propanone; List II Chemicals: Less than 66 G of Acetic Anhydride; Less than 7.05 KG of Acetone; Less than 120 G of Benzyl Chloride; Less than 6.45 KG of Ethyl Ether; Less than 7.2 KG of Methyl Ethyl Ketone; Less than 60 G of Potassium Permanganate; Less than 7.8 KG of Toluene. *Notes: tablets, in calculating the base offense in the Ephedrine, Pseudoephedrine, and (A) Except as provided in subdivision (B), level.’’. Phenylpropanolamine Quantity Table, to calculate the base offense level in an The Commentary to § 2D1.11 (i) convert each chemical to its offense that involves two or more chemicals, captioned ‘‘Application Notes’’ is ephedrine equivalency; (ii) add the use the quantity of the single chemical that amended by striking the text of Note 4 results in the greatest offense level, regardless quantities that result from that of whether the chemicals are set forth in in its entirety and inserting the equivalency; and (iii) use the Ephedrine, different tables or in different categories (i.e. following: Pseudoephedrine, and list I or list II) under subsection (d) of this ‘‘(A) Determining the Base Offense Phenylpropanolamine Quantity Table to guideline. Level for Two or More Chemicals.— determine the base offense level. (B) To calculate the base offense level in Except as provided in subdivision B, if the offense involves two or more Example: The defendant was in an offense that involves two or more possession of 80 grams of ephedrine and 50 chemicals set forth in the Ephedrine, chemicals, use the quantity of the single grams of phenylpropanolamine. The 50 Pseudoephedrine, and Phenylpropanolamine chemical that results in the greatest grams of phenylpropanolamine converts to Quantity Table, (i) convert each chemical to offense level, regardless of whether the 50 grams of ephedrine, which when added to its ephedrine equivalency using the table chemicals are set forth in different the quantity of ephedrine, results in a total below; (ii) add the quantities that result from tables or in different categories (i.e., list of 130 grams of ephedrine. In this case, the that equivalency; and (iii) use the Ephedrine, base offense level would be level 32. Pseudoephedrine, and Phenylpropanolamine I or list II) under subsection (d) of this Quantity Table to determine the base offense guideline. (C) Upward Departure.—In a case level. Example: The defendant was in involving two or more chemicals used possession of five kilograms of ephedrine and Pseudoephedrine and to manufacture different controlled 300 grams of hydriodic acid. Ephedrine and substances, or to manufacture one Phenylpropanolamine Equivalency hydriodic acid typically are used together in Table controlled substance by different the same manufacturing process to manufacturing processes, an upward manufacture methamphetamine. The base 1 gm of Pseudoephedrine=1 gm of offense level for each chemical is calculated departure may be warranted if the Ephedrine separately and the chemical with the higher offense level does not adequately 1 gm of Phenylpropanolamine=1 gm of base offense level is used. Five kilograms of address the seriousness of the offense.’’. ephedrine result in a base offense level of The Commentary to § 2D1.11 Ephedrine level 38; 300 grams of hydriodic acid result captioned ‘‘Application Notes’’ is (C) In a case involving ephedrine, in a base offense level of 16. In this case, the amended by striking Notes 5 and 6 in pseudoephedrine, or base offense level would be level 38. their entirety; and by redesignating phenylpropanolamine tablets, use the (B) Determining the Base Offense Notes 7 and 8 as Notes 5 and 6, weight of the ephedrine, Level for Offenses Involving Ephedrine, respectively. pseudoephedrine, or Pseudoephedrine, or The Commentary to § 2D1.11 phenylpropanolamine contained in the Phenylpropanolamine.—If the offense captioned ‘‘Background’’ is amended in tablets, not the weight of the entire involves two or more chemicals set forth the first sentence by inserting VerDate 11 ‘‘(including ephedrine, level for the proposed Ephedrine, these offenses.’’ The Commission is also pseudoephedrine, and Pseudoephedrine, directed to ‘‘consider providing phenylpropanolamine)’’ after ‘‘list I Phenylpropanolamine Table in § 2D1.11 sentencing enhancements’’ in cases chemicals’’. should be lower than level 38. A lower which involve: (A) a large number of The Commentary to 2D1.1 captioned maximum base offense level would victims; (B) a pattern of continued and ‘‘Application Notes’’ is amended in maintain a distinction between offenses flagrant violations; (C) the use or Note 10 in the ‘‘Drug Equivalency involving possession of precursor threatened use of a dangerous weapon; Tables’’ by inserting after the chemicals with intent to manufacture or (D) the death or bodily injury of any subdivision captioned ‘‘Schedule V methamphetamine and offenses person. Substances’’ the following new involving an actual attempt to To address this multi-faceted subdivision: manufacture methamphetamine. directive, this proposed amendment (2) In response to the congressional makes changes to several existing List I Chemicals (Relating to the directive to increase penalties for guidelines and creates a new guideline Manufacture of Amphetamine or offenses involving List I chemicals other for criminal violations of the Migrant Methamphetamine) * * * than ephedrine, PPA, and and Seasonal Agricultural Worker 1 gm of Ephedrine=10 kg of marihuana pseudoephedrine, the Commission Protection Act. Although the directive 1 gm of Phenylpropanolamine=10 kg of invites comment regarding whether, in instructs the Commission to amend the marihuana addition to or instead of the proposed guidelines applicable to the Fair Labor 1 gm of Pseudoephedrine=10 kg of amendment, the penalty structure in Standards Act (29 U.S.C. 201 et. seq.), marihuana § 2D1.11 should be changed to increase a criminal violation of the Act is only * * * Provided, that in a case penalties for Benzaldehyde, Hydriodic a Class B misdemeanor. See 29 U.S.C. involving ephedrine, pseudoephedrine, Acid, Methylamine, Nitroethane, and 216. Thus, the guidelines are not or phenylpropanolamine tablets, use the Norpseudoephedrine at each quantity applicable to those offenses. weight of the ephedrine, level in the Chemical Quantity Table, The proposed amendment references pseudoephedrine, or and if so, by how much. the new offense at 18 U.S.C. 1591 to phenylpropanolamine contained in the § 2G1.1 (Promoting Prostitution or tablets, not the weight of the entire Proposed Amendment: Human Prohibited Sexual Conduct). Section tablets, in calculating the base offense Trafficking 1591 punishes a defendant who level.’’. 4. Synopsis of Proposed Amendment: participates in the transporting or Issues for Comment This amendment implements the harboring of a person, or who benefits directive found at section 112(b) of the from participating in such a venture, (1) Currently, there is a six level Victims of Trafficking and Violence with the knowledge that force, fraud or difference between the base offense Protection Act of 2000 (the ‘‘Act’’), Pub. coercion will be used to cause that levels in the Drug Quantity Table of L. 106–386. person to engage in a commercial sex § 2D1.1 and the Chemical Quantity The directive confers emergency act or with knowledge that the person Table in § 2D1.11. (The original authority on the Commission to amend is not 18 years old and will be forced relationship between controlled the federal sentencing guidelines to to engage in a commercial sex act. substances in § 2D1.1 and list I reflect changes to 18 U.S.C. 1581(a) Despite the statute’s inclusion in a chemicals in § 2D1.11 presumed a 50 (Peonage), 1583 (Enticement into chapter of title 18 devoted mainly to percent yield of controlled substances Slavery), and 1584 (Sale into peonage offenses, section 1591 offenses from each chemical and then reduced Involuntary Servitude). The are analogous to the offenses referenced the entire table in § 2D1.11 by eight Commission is also directed to consider to the prostitution guideline. levels. The eight level distinction was how to address four new statutes: 18 Section 2G1.1(b)(2) is proposed to be later reduced to six levels as a result of U.S.C. 1589 (Forced Labor); 18 U.S.C. amended to include a [6][9] level a congressional directive.) This six level 1590 (Trafficking with Respect to increase for victimization of children difference effectively creates a Peonage, Involuntary Servitude or who have not attained the age of 12 distinction between offenses involving Forced Labor); 18 U.S.C. 1591 (Sex years, a [4][6] level increase for possession of precursor chemicals with Trafficking of Children by Force, Fraud victimization of children who have not intent to manufacture a controlled or Coercion); and 18 U.S.C. § 1592 attained the age of 14 years, and a [2][3] substance and offenses involving an (Unlawful Conduct with Respect to level increase for children who have not actual attempt to manufacture a Documents in Furtherance of Peonage, attained the age of 16 years. This change controlled substance. However, the Involuntary Servitude or Forced Labor). increases by [2][5] levels the proposed amendment essentially will Specifically, the Commission is punishment for victimization of a child eliminate this distinction for cases directed to ‘‘review and, if appropriate, under 12 years of age and creates an involving ephedrine, pseudoephedrine, amend the sentencing guidelines additional category of victims—children and phenylpropanolamine by (1) applicable to * * * the trafficking of between the ages of 12 and 14 years. Eliminating that six-level difference in persons including * * * peonage, These changes were proposed in offense level from the § 2D1.1 offense involuntary servitude, slave trade recognition of Congress’s distinction in level that corresponds to the amount of offenses, and possession, transfer or sale section 1591 between offenses involving controlled substance that could be of false immigration documents in minors under 14 years of age (statutory manufactured from a given quantity of furtherance of trafficking, and the Fair cap of ‘‘any term of years or life’’) and precursor chemical (assuming a 50% Labor Standards Act and the Migrant offenses involving minors between 14 yield); and (2) setting the maximum and Seasonal Agricultural Worker and 18 years of age (statutory cap of base offense level at level 38, the Protection Act.’’ ‘‘not more than 20 years’’). This change maximum base offense level provided The Commission is directed to ‘‘take conforms the guidelines to the penalties for the manufacture of all appropriate measures to ensure that of section 1591. methamphetamine in § 2D1.1. The these sentencing guidelines * * * are The special instruction at Commission invites comment regarding sufficiently stringent to deter and § 2G1.1(d)(2) has been added to ensure whether the maximum base offense adequately reflect the heinous nature of that attempts to violate section 1591 are VerDate 11 not to be referred to § 2X1.1 (Attempt, obtaining, a person for labor or services. The proposed amendment also adds Solicitation, or Conspiracy). This Section 1592 punishes a defendant who § 2H4.1 to the list of guidelines in change implements Congress’s direction knowingly possesses, destroys, or § 2X1.1 that expressly cover attempts in 18 U.S.C. 1594 that ‘‘whoever removes an actual passport, other and conspiracies. This change attempts to violate section * * * 1591 immigration document, or government implements Congress’s direction in 18 shall be punishable in the same manner identification document of another U.S.C. 1594 that ‘‘whoever attempts to as a completed violation of that person in the course of a violation of violate § 1581, § 1583, § 1584, § 1589, section.’’ §§ 1581 (peonage), 1583 (enticement § 1590, or § 1591 shall be punishable in An additional application note— into slavery), 1584 (sale into involuntary the same manner as a completed Application Note 12—has been added to servitude), 1589 (forced labor), 1590 violation of that section.’’ With the § 2G1.1 to provide an encouraged (trafficking with respect to these exception of section 1591, all the upward departure when an offense offenses), 1591 (sex trafficking of specified statutes are referenced to ‘‘involved substantially more than children by force, fraud or coercion), or § 2H4.1. Conforming amendments are [6][10][25] victims.’’ This encouraged 1594(a) (attempts to violate these made to the title of § 2H4.1. upward departure was added in offenses). Section 1592 also punishes a The proposed amendment creates a response to Congress’s directive that the defendant who, with intent to violate new guideline, § 2H4.2 (Willful Commission consider enhanced § 1581, § 1583, § 1584, § 1589, § 1590, or Violations of the Migrant and Seasonal sentencing in cases which involve ‘‘a § 1591, knowingly possesses, destroys, Agricultural Worker Protection Act), in large number of victims.’’ A departure or removes an actual passport, other response to Congress’s directive to note is provided, rather than an immigration document, or government amend the guidelines applicable to such enhancement, because of the current identification document of another offenses. These offenses, which have a special grouping rule in § 2G1.1(d)(1) person. These statutes prohibit the types statutory maximum sentence of one year regarding multiple victims that requires of behaviors which have been imprisonment for first offenses and that counts involving different victims traditionally sentenced under § 2H4.1. three years imprisonment for not be grouped. The proposed amendment provides subsequent offenses, currently are not Section 1591 cases have been an alternative, less punitive base offense referred to any specific guideline. The alternatively referred in Appendix A to level for those who violate 18 U.S.C. Department of Justice and Department § 2G2.1 (Sexually Exploiting a Minor by 1592, an offense which limits of Labor both recommend creation of a Production of Sexually Explicit Visual participation in peonage cases to the discrete guideline for these offenses. or Printed Material). This has been done destruction or wrongful confiscation of The proposed base offense level (level in anticipation that some portion of a passport or other immigration [4][6]) has been proposed in recognition section 1591 cases will involve children of the small statutory maximum document. This alternative, lower base being forced or coerced to engage in sentences set for these cases by level reflects the lower statutory commercial sex acts for the purpose of Congress. Similarly, § 2H4.2(b)(1), an maximum sentence set for section 1592 producing pornography. Such offenses, enhancement for bodily injury, and offenses (i.e., 5 years). The amendment as recognized by the higher base offense § 2H4.2(b)(2), an enhancement for proposes level [15] as the appropriate level at § 2G2.1, are more serious offenders who commit their offenses level because similar offenses involving because they both involve specific harm after previously sustaining a civil documents are punishable at level 15 to an individual victim and further an penalty for similar misconduct, have under § 2L2.1 (Trafficking in a additional criminal purpose, been established to respond to Document Relating to Naturalization, commercial pornography. In the interest Congress’s directive that the Citizenship or Legal Resident Status or of consistency and proportionality, the Commission consider sentencing a United States Passport). However, the same changes have been made to enhancement for these offense proposed amendment also includes an § 2G2.1 as those discussed above for characteristics. This section addresses additional, bracketed base offense level § 2G1.1. the Department of Justice’s and the of [18]. The proposed amendment conforms Department of Labor’s concern to the view that § 2H4.1 (Peonage, Section 2H4.1(b)(2) has been regarding prior administrative and civil Involuntary Servitude, and Slave Trade) expanded to provide a 2-level increase adjudications. continues to be an appropriate tool for if a dangerous weapon was brandished This proposed amendment also determining sentences for violations of or its use was threatened, with an addresses that portion of section 112 of 18 U.S.C. 1581, 1583, and 1584 . Section increase to 4 levels for actual use. the Act that amends chapter 77 of title 2H4.1 is also designed to cover offenses Currently, only actual use of a 18, United States Code, to provide under three new statutes, 18 U.S.C. dangerous weapon is covered. This mandatory restitution for peonage and 1589, 1590, and 1592. Section 1589 change reflects Congress’s directive to involuntary servitude offenses. The punishes defendants who provide or consider an enhancement for the ‘‘use or proposed amendment amends § 5E1.1 obtain the labor services of another by threatened use of a dangerous weapon.’’ (Restitution) to include a reference to 18 the use of threats of serious harm or The proposed amendment adds an U.S.C. 1593 in the guideline provision physical restraint against a person, or by enhancement at § 2H4.1(b)(3), for regarding mandatory restitution. a scheme or plan intended to make the offenses involving more than [6][10][25] person believe that if he or she did not victims. This change reflects Congress’s Proposed Amendment perform the labor or services, he or she directive to consider an enhancement Section 2G1.1 is amended by striking would suffer physical restraint or for cases ‘‘involving a large number of subsection (b)(2) in its entirety and serious harm. This statute also applies victims.’’ Also, § 2H4.1, Application inserting the following: to defendants who provide or obtain Note 3, which formerly provided an ‘‘[(2) If the offense involved a victim labor services of another by abusing or encouraged upward departure for who had (A) not attained the age of 12 threatening abuse of the law or the legal offenses involving more than 10 victims, years, increase by [6][9] levels; (B) process. See 18 U.S.C. 1589. Section has been altered to encourage departure attained the age of 12 years but not 1590 punishes defendants who harbor, ‘‘if the offense involved substantially attained the age of 14 years, increase by transport, or are otherwise involved in more than [6][10][25] victims.’’ [4][6] levels; or (C) attained the age of 14 VerDate 11 years but had not attained the age of 16 Section 2H4.1 is amended in the title (b) Specific Offense Characteristics. years, increase by [2][3] levels.]’’. by adding ‘‘; Attempt or Conspiracy’’ (1) If the offense involved (i) serious Section 2G1.1(d) is amended by after ‘‘Trade’’. bodily injury, increase by [4] levels; or adding at the end the following: Section 2H4.1(a) is amended by (ii) bodily injury, increase by [2] levels. ‘‘(2) If the defendant was convicted of striking ‘‘22’’ and inserting the (2) If the defendant committed any an attempt to commit an offense under following: part of the instant offense subsequent to 18 U.S.C. 1591, do not apply § 2X1.1 ‘‘(1) 22; or sustaining a civil or administrative (Attempt, Solicitation, or Conspiracy (2) [15][18], if the defendant was adjudication for similar misconduct, (Not Covered by a Specific Offense convicted only of an offense under 18 increase by [2] levels. U.S.C. 1592.’’. Guideline)).’’. Commentary The Commentary to § 2G1.1 captioned Section 2H4.1(b) is amended by ‘‘Statutory Provisions’’ is amended by striking subdivision (2) in its entirety Statutory Provision: 29 U.S.C. 1851 inserting ‘‘1591,’’ before ‘‘2421’’. and inserting the following: Application Notes: The Commentary to § 2G1.1 captioned ‘‘[(2) If (i) a dangerous weapon was 1. Definitions.—For purposes of ‘‘Application Notes’’ is amended in used, increase by 4 levels; or (ii) a subsection (b)(1), ‘‘bodily injury’’ and Note 2 in the fourth sentence by adding dangerous weapon was brandished or ‘‘serious bodily injury’’ have the ‘‘(B)’’ after ‘‘purposes of subsection its use was threatened, increase by 2 meaning given those terms in (b)(1).’’. levels.]’’. Application Note 1 of the Commentary The Commentary to § 2G1.1 captioned Section 2H4.1(b) is amended by to § 1B1.1 (Application Instructions). ‘‘Application Notes’’ is amended by redesignating subdivisions (3) and (4) as 2. Application of Subsection (b)(2).— adding at the end the following: subdivisions (4) and (5), respectively, Section 1851 of title 29, United States ‘‘[12.Upward Departure.—If the and inserting after subdivision (2) the Code, covers a wide range of conduct. offense involved substantially more following: Accordingly, the enhancement in than [6][10][25] victims, an upward ‘‘[(3) If the offense involved more than subsection (b)(2) applies only if the departure may be warranted.]’’. [6][10][25] victims, increase by [2][4] instant offense is similar to previous The Commentary to § 2G1.1 captioned levels.]’’. misconduct that resulted in a civil or ‘‘Background’’ is amended by adding at The Commentary to § 2H4.1 captioned administrative adjudication under the the end the following paragraph: ‘‘Statutory Provisions’’ is amended by provisions of the Migrant and Seasonal ‘‘This guideline also covers offenses striking ‘‘1588’’ and inserting ‘‘1590, Agricultural Worker Protection Act (29 under section 1591 of title 18, United 1592’’. U.S.C. 1801 et seq.).’’. States Code. These offenses involve The Commentary to § 2H4.1 captioned Appendix A (Statutory Index) is recruiting or transporting a person in ‘‘Application Notes’’ is amended by amended by inserting after the line interstate commerce knowing either that striking the text of Note 3 in its entirety referenced to ‘‘29 U.S.C. 1141’’ the (A) force, fraud, or coercion will be used and inserting the following: following: to cause the person to engage in a ‘‘Upward Departure.’’ If the offense ‘‘29 U.S.C. 1851 2H4.2’’. commercial sex act; or (B) the person (i) involved substantially more than Section 5E1.1(a)(1) is amended by had not attained the age of 18 years; and [6][10][25] victims, an upward departure inserting ‘‘§ 1593,’’ after ‘‘18 U.S.C.’’. (ii) will be caused to engage in a may be warranted.’’. The Commentary to § 5E1.1 captioned commercial sex act.’’. The Commentary to § 2X1.1 captioned ‘‘Background’’ is amended in the first Section 2G2.1 is amended by striking ‘‘Application Notes’’ is amended in paragraph by inserting ‘‘1593,’’ after ‘‘18 subsection (b)(1) in its entirety and Note 1 in the second paragraph by U.S.C. §§ ’’. inserting the following: inserting after ‘‘2E5.1;’’ the following new lines: Part (B): Proposed Non-Emergency ‘‘[(1) If the offense involved a victim Amendments who had (A) not attained the age of 12 ‘‘§ 2G1.1 (if the defendant was years, increase by [6][9] levels; (B) convicted of an attempt to commit an Proposed Amendment: Sexual Predators offense under 18 U.S.C. 1591 (See 18 attained the age of 12 years but not 5. Synopsis of Proposed Amendment: U.S.C. 1594(a)); attained the age of 14 years, increase by This is a three-part amendment that § 2H4.1;’’. [4][6] levels; or (C) attained the age of 14 includes: The Commentary to § 2X1.1 captioned years but had not attained the age of 16 (A) Amendments to implement the ‘‘Application Notes’’ is amended in years, increase by [2][3] levels.]’’. ‘‘pattern of activity’’ directive in the Note 1 in the third paragraph by Section 2G2.1(c) is amended by Protection of Children from Sexual inserting ‘‘2H4.1’’ after ‘‘2H1.1’’. adding at the end the following: Predators Act of 1998, Pub. L. 105–314 Appendix A (Statutory Index) is ‘‘(2) If the defendant was convicted of (the ‘‘Act’’), and related amendments. an attempt to commit an offense under amended by inserting after the line (B) Amendments related to grouping 18 U.S.C. 1591, do not apply § 2X1.1 referenced to ‘‘18 U.S.C. 1588’’ the certain child pornography counts of (Attempt, Solicitation, or Conspiracy following new lines: conviction. (Not Covered by a Specific Offense ‘‘18 U.S.C. 1589 2H4.1 (C) Amendments to implement the Guideline)).’’. 18 U.S.C. 1590 2H4.1 directive in the Act to provide an The Commentary to § 2G2.1 captioned 18 U.S.C. 1591 2G1.1, 2G2.1 enhancement for transportation offenses ‘‘Statutory Provisions’’ is amended by 18 U.S.C. 1592 2H4.1’’. under chapter 117 of title 18, United inserting ‘‘1591,’’ before ‘‘2251(a)’’. Chapter Two, Part H, is amended in States Code, and other related The Commentary to § 2G2.1 captioned Subpart 4 by adding at the end the amendments. ‘‘Application Notes’’ is amended by following: adding at the end the following: Part (A): Enhancement for Pattern of ‘‘[6. Upward Departure.—If the ‘‘§ 2H4.2. Willful Violations of the Activity offense involved substantially more Migrant and Seasonal Agricultural Synopsis: Part A proposes several than [6][10][25] victims, an upward Worker Protection Act options, including a possible departure may be warranted.]’’. (a) Base Offense Level: [4][6]. combination of approaches to satisfy the VerDate 11 Congressional directive in the Act that defendant previously has engaged in (d) A repeat and dangerous sex requires the Commission to increase the two or more instances of prohibited offender’s criminal history category in penalties in any case in which the sexual conduct, whether or not that every case shall be [Option 1A: not less defendant engaged in a pattern of conduct resulted in a conviction. than Category [IV][V]] [Option 1B: activity involving the sexual abuse or The third option would provide a Category VI]. exploitation of a minor. There are many Chapter Two specific offense Commentary types of conduct that may indicate that characteristic in the sexual abuse a defendant is a high risk sex offender guidelines. This specific offense Application Notes: engaging in a pattern of prohibited characteristic mirrors the current 1. Definitions.—For purposes of this sexual conduct. Each of these pattern of activity adjustment in § 2G2.2 guideline: components considers various aspects (Trafficking in Material Involving the ‘Offense Statutory Maximum’ means of sex offenders and the types of activity Sexual Exploitation of a Minor). A the maximum term of imprisonment involved in a pattern of behavior. There defendant who abuses or exploits a authorized for the instant offense of are four options presented by this minor on two or more occasions will conviction that is a sex crime, including amendment that could be used either in receive a two-level increase in offense any increase in that maximum term combination or alone to implement the level pursuant to this enhancement. under a sentencing enhancement directive. In addition to these four The fourth option provides language provision that applies to that sex crime options, the proposal amends the encouraging an upward departure for a because of the defendant’s prior guideline covering terms of supervised defendant who commits repeated acts of criminal record (such as the sentencing release, § 5D1.2, to provide that the term sexual abuse of the same minor. This enhancement provisions contained in of supervised release for a defendant component would allow courts to 18 U.S.C. §§ 2247(a) and 2426(a)). convicted of a sex crime shall be the sanction a defendant for a pattern of [Option 1A: ‘Sex offense conviction’ has the maximum term authorized by statute. multiple acts of abuse of the same meaning given that term in 18 U.S.C. The first option would create a new victim over a period of time. Chapter Four guideline, § 4B1.5, that § 2426, but such term does not include aims to incapacitate high risk sex Proposed Amendment trafficking in, receipt of, or possession offenders who have an instant offense of (1) Option 1: Chapter Four, Part B, is of, child pornography. conviction of sexual abuse and a prior amended by adding at the end the 2. Requirement of Sex Crime as felony conviction for sexual abuse. Two following: Instant Offense of Conviction.—For options are contained within this purposes of subsection (a)(1), the instant option. Option 1A sanctions defendants ‘‘§ 4B1.5. Repeat and Dangerous Sex offense of conviction must be an instant whose instant offense of conviction and Offender offense of conviction under [chapter prior conviction involve prohibited (a) A defendant is a repeat and 109A,] [chapter 109A perpetrated sexual conduct. In contrast to option 1B, dangerous sex offender if— against a minor,] chapter 110 (not option 1A increases the defendant’s (1) The instant offense of conviction including trafficking in, receipt of, or criminal history to not less than is a sex crime; and possession of, child pornography, or category IV or V, as opposed to criminal (2) The defendant committed the recordkeeping offenses), or chapter 117 history category VI. Option 1A also instant offense of conviction subsequent (not including transmitting information includes a wider range of offenses to sustaining at least one sex offense about a minor or filing a factual involving prohibited sexual conduct. conviction. statement about alien individual), of Under Option 1A, chapter 109A (b) If (1) a repeat and dangerous sex title 18, United States Code, or an offenses are bracketed for either (1) offender is not a career offender attempt or a conspiracy to commit such possible exclusion from the scope of pursuant to § 4B1.1 (Career Offender); an offense.] [Option 1B: instant offenses of conviction that and (2) the offense level for that repeat ‘Sex offense conviction’ means a prior would trigger the guideline, or (2) and dangerous sex offender from the conviction for (A) any sex crime referred limiting those offenses to those that are table below is greater than the offense to in Application Note 2; or (B) any perpetrated against a minor. Excluding level otherwise applicable, the offense offense under State law consisting of chapter 109A offenses focuses level from the table below shall apply. application of the guideline to those conduct that would have been such a defendants who use the internet or other Offense sex crime if the conduct had occurred interstate means to prey on minors. Offense statutory maximum level within the special maritime and Option 1B tracks legislation from the territorial jurisdiction of the United 106th Congress that proposed a (A) Life ...... [37] States. The term ‘‘State’’ has the mandatory minimum life sentence for (B) 25 years or more ...... [34] meaning given that term in 18 U.S.C. defendants whose instant offense of (C) 20 years or more, but less § 2426(b)(2). conviction and prior conviction than 25 years ...... [32] 2. Requirement of Sex Crime as involved direct sexual contact. This (D) 15 years or more, but less Instant Offense of Conviction.—For than 20 years ...... [29] option provides for sentences at or near (E) 10 years or more, but less purposes of subsection (a)(1), the instant the statutory maximum for these types than 15 years ...... [24] offense of conviction must be an instant of defendants. (F) 5 years or more, but less than offense of conviction under 18 U.S.C. The second option would create a 10 years ...... [17] § 2241, § 2242, § 2243, § 2244, § 2245, Chapter Four guideline, § 4B1.6, that (G) More than 1 year, but less § 2251A, or § 2423, including an attempt provides a five-level increase (and a than 5 years ...... [12] or conspiracy to commit such an minimum offense level of level 32) for offense.] defendants who engage in a pattern of (c) If an adjustment from § 3E1.1 3. Determination of Prior Sex Offense activity involving prohibited sexual (Acceptance of Responsibility) applies, Convictions Under Subsection (a)(2).— conduct. This guideline requires that (1) decrease the applicable offense level in For purposes of subsection (a)(2), the the defendant’s instant offense of subsection (b) by the number of levels date that a defendant sustained a conviction is a sex crime; and (2) the corresponding to that adjustment. conviction shall be the date that the VerDate 11 guilt of the defendant was established, separate instances of prohibited sexual offenders sentenced under this whether by guilty plea, trial or plea of conduct by the defendant with a minor guideline. In addition, treatment and nolo contendere. victim other than a minor victim of the monitoring are important tools for 4. Determination of Offense Statutory instant offense of conviction, whether or supervising offenders and should be Maximum in the Case of Multiple not the conduct resulted in a conviction considered as special conditions of the Counts of Conviction.—In a case in for such conduct. term of supervised release that is which more than one count of the ‘Prohibited sexual conduct’ (A) means imposed.]’’. instant offense of conviction is a felony any sexual activity for which a person (3) Option Three: Section 2A3.1(b) is that is a sex crime, the court shall use can be charged with a criminal offense; amended by adding at the end the the maximum authorized term of (B) includes the production of child following: imprisonment for the count that has the pornography; (C) includes trafficking in ‘‘(7) If the defendant engaged in a greatest offense statutory maximum, for child pornography if the defendant has pattern of activity involving the sexual purposes of determining the offense a prior felony conviction for trafficking abuse or exploitation of a minor, statutory maximum under subsection in child pornography; and (D) does not increase by [2] levels.’’. include possession of child (b). The Commentary to § 2A3.1 captioned [5. Departure Provision.—There may pornography. ‘Child pornography’ has ‘‘Application Notes’’ is amended by be cases in which reliable information the meaning given that term in 18 U.S.C. adding at the end the following: indicates that the guideline sentence 2256(8). resulting from application of this [2. Sexual Predator Determination.— ‘‘8. Pattern of Activity guideline either understates or For purposes of this guideline, the Enhancement.— overstates the likelihood that the defendant is a sexual predator if the ‘Pattern of activity involving the defendant will commit another sexual court determines, under the totality of sexual abuse or exploitation of a minor’ offense, or the seriousness of the the circumstances, that the defendant is means any combination of two or more defendant’s criminal history. In such likely to continue to engage in separate instances of the sexual abuse or cases, an upward or a downward prohibited sexual conduct with minors sexual exploitation of a minor by the departure, respectively, may be in the future. [In making this defendant, whether or not the abuse or warranted. Such reliable information determination, the court may rely on exploitation (A) occurred during the may include, for example, risk information such as expert course of the offense; (B) involved the assessments and other expert testimony psychosexual evaluations and other same or different victims; or (C) resulted regarding the likelihood of reliable evidence.]] in a conviction for such conduct. recidivism.]’’. Background: This guideline is ‘Sexual abuse or exploitation’ means (2) Option 2: intended to provide lengthy conduct constituting criminal sexual Chapter Four, Part B, [as amended by incarceration for offenders who present abuse of a minor, sexual exploitation of this amendment,] is amended by adding a continuing danger to the public. It a minor (including trafficking in at the end the following: applies to any offender whose instant material relating to the sexual abuse or offense of conviction is a sex offense, exploitation of a minor), abusive sexual ‘‘§ 4B1.6 Sexual Predator regardless of the specific sex offense of contact of a minor, any similar offense If— conviction or Chapter Two guideline under state law, any offense involving (a) the defendant is not a career under which the offender is sentenced. the promotion or enticement of minors offender pursuant to § 4B1.1 (Career The relevant criminal provisions to engage in sexual activity, or an Offender) and is not a repeat and provide for increased statutory attempt or a conspiracy to commit any dangerous sex offender pursuant to maximum penalties for repeat sex of the above offenses. offenders and make those increased § 4B1.5 (Repeat and Dangerous Sex If the defendant engaged in the sexual statutory maximum penalties available Offender); and abuse or exploitation of a minor at any if the defendant was convicted of any of (b)(1) the instant offense of conviction time (whether or not such abuse or several federal and state sex offenses is a sex offense that the defendant exploitation occurred during the course (see 18 U.S.C. 2247, 2426). In addition, committed as part of a pattern of activity of the offense or resulted in a conviction section 632 of Pub. L. 102–141 and involving prohibited sexual conduct for such conduct) and subsection (b)(7) section 505 of Pub. L. 105–314 directed [with a minor]; [[and][or] (2) the instant does not apply, an upward departure the Commission to ensure lengthy offense of conviction is a sex offense may be warranted. In addition, an incarceration for offenders who engage and the defendant is a sexual predator], upward departure may be warranted if in a pattern of activity involving the increase by [5] levels; but if the resulting the defendant received an enhancement sexual abuse or exploitation of minors. offense level is less than [32][30], under subsection (b)(7) but that increase to level [32][30]. [The guideline is intended to target those dangerous offenders for whom enhancement does not adequately Commentary future sex offending is likely. Research reflect the seriousness of the sexual abuse or exploitation involved or the Application Notes: has shown that recidivism rates vary likelihood of recidivism. 1. Definitions.—For purposes of this depending on characteristics of the guideline: offender that may be determined at the Prior convictions taken into account ‘Sex offense’ means an offense under time of sentencing, such as a proven under subsection (b)(7) are also counted [chapter 109A,] [chapter 109A sexual preference for minors or other for purposes of determining criminal perpetrated against a minor,] chapter psychopathy. Psychosexual evaluations history points pursuant to Chapter Four, 110 (not including trafficking, receipt, by certified professionals using Part A (Criminal History).’’. or possession of, child pornography), or empirically-validated risk assessment Section 2A3.2(b) is amended by chapter 117 of title 18, United States instruments may be useful to identify adding at the end the following: Code, or an attempt or a conspiracy to those offenders who are most likely to ‘‘(5) If the defendant engaged in a commit any such offense. reoffend.] pattern of activity involving the sexual ‘Pattern of activity’ means any The statutory maximum term of abuse or exploitation of a minor, combination of two or more prior supervised release is recommended for increase by [2] levels.’’. VerDate 11 The Commentary to § 2A3.2 captioned ‘Sexual abuse or exploitation’ means of the offense or resulted in a conviction ‘‘Application Notes’’ is amended by conduct constituting criminal sexual for such conduct) and subsection (b)(6) adding at the end the following: abuse of a minor, sexual exploitation of does not apply, an upward departure ‘‘9. Pattern of Activity a minor (including trafficking in may be warranted. In addition, an Enhancement.— material relating to the sexual abuse or upward departure may be warranted if ‘Pattern of activity involving the exploitation of a minor), abusive sexual the defendant received an enhancement sexual abuse or exploitation of a minor’ contact of a minor, any similar offense under subsection (b)(6) but that means any combination of two or more under state law, any offense involving enhancement does not adequately separate instances of the sexual abuse or the promotion or enticement of minors reflect the seriousness of the sexual sexual exploitation of a minor by the to engage in sexual activity, or an abuse or exploitation involved or the defendant, whether or not the abuse or attempt or a conspiracy to commit any likelihood of recidivism. exploitation (A) occurred during the of the above offenses. Prior convictions taken into account course of the offense; (B) involved the If the defendant engaged in the sexual under subsection (b)(6) are also counted same or different victims; or (C) resulted abuse or exploitation of a minor at any for purposes of determining criminal in a conviction for such conduct. time (whether or not such abuse or history points pursuant to Chapter Four, ‘Sexual abuse or exploitation’ means exploitation occurred during the course Part A (Criminal History).’’. conduct constituting criminal sexual of the offense or resulted in a conviction (4) Option Four: The Commentary to abuse of a minor, sexual exploitation of for such conduct) and subsection (b)(3) § 2A3.1 captioned ‘‘Application Notes’’ a minor (including trafficking in does not apply, an upward departure is amended by adding at the end the material relating to the sexual abuse or may be warranted. In addition, an following: exploitation of a minor), abusive sexual upward departure may be warranted if ‘‘8. Upward Departure Provision.—If contact of a minor, any similar offense the defendant received an enhancement the defendant committed repeated acts under state law, any offense involving under subsection (b)(3) but that of sexual abuse of the same minor over the promotion or enticement of minors enhancement does not adequately a period of time and the court to engage in sexual activity, or an reflect the seriousness of the sexual determines that the guideline has not attempt or a conspiracy to commit any abuse or exploitation involved or the adequately taken these repeated acts of the above offenses. likelihood of recidivism. into account, an upward departure may If the defendant engaged in the sexual Prior convictions taken into account be warranted.’’. abuse or exploitation of a minor at any under subsection (b)(3) are also counted The Commentary to § 2A3.2 captioned time (whether or not such abuse or for purposes of determining criminal ‘‘Application Notes’’ is amended by exploitation occurred during the course history points pursuant to Chapter Four, adding at the end the following: ‘‘9. Upward Departure Provision.—If of the offense or resulted in a conviction Part A (Criminal History).’’. the defendant committed repeated acts for such conduct) and subsection (b)(5) Section 2A3.4(b) is amended by of sexual abuse of the same minor over does not apply, an upward departure adding at the end the following: ‘‘(6) If the defendant engaged in a a period of time and the court may be warranted. In addition, an pattern of activity involving the sexual determines that the guideline has not upward departure may be warranted if abuse or exploitation of a minor, adequately taken these repeated acts the defendant received an enhancement increase by [2] levels.’’. into account, an upward departure may under subsection (b)(5) but that The Commentary to § 2A3.4 captioned be warranted.’’. enhancement does not adequately ‘‘Application Notes’’ is amended by The Commentary to § 2A3.3 captioned reflect the seriousness of the sexual adding at the end the following: ‘‘Application Notes’’ is amended by abuse or exploitation involved or the ‘‘9. Pattern of Activity adding at the end the following: likelihood of recidivism. Enhancement.— ‘‘5. Upward Departure Provision.—If Prior convictions taken into account ‘Pattern of activity involving the the defendant committed repeated acts under subsection (b)(5) are also counted sexual abuse or exploitation of a minor’ of sexual abuse of the same minor over for purposes of determining criminal means any combination of two or more a period of time and the court history points pursuant to Chapter Four, separate instances of the sexual abuse or determines that the guideline has not Part A (Criminal History).’’. sexual exploitation of a minor by the adequately taken these repeated acts Section 2A3.3(b) is amended by defendant, whether or not the abuse or into account, an upward departure may adding at the end the following: exploitation (A) occurred during the be warranted.’’. ‘‘(3) If the defendant engaged in a course of the offense; (B) involved the The Commentary to § 2A3.4 captioned pattern of activity involving the sexual same or different victims; or (C) resulted ‘‘Application Notes’’ is amended by abuse or exploitation of a minor, in a conviction for such conduct. adding at the end the following: increase by [2] levels.’’. ‘Sexual abuse or exploitation’ means ‘‘9. Upward Departure Provision.—If The Commentary to § 2A3.3 captioned conduct constituting criminal sexual the defendant committed repeated acts ‘‘Application Notes’’ is amended by abuse of a minor, sexual exploitation of of sexual abuse of the same minor over adding at the end the following: a minor (including trafficking in a period of time and the court ‘‘5. Pattern of Activity material relating to the sexual abuse or determines that the guideline has not Enhancement.— exploitation of a minor), abusive sexual adequately taken these repeated acts ‘Pattern of activity involving the contact of a minor, any similar offense into account, an upward departure may sexual abuse or exploitation of a minor’ under state law, any offense involving be warranted.’’. means any combination of two or more the promotion or enticement of minors (5) Conforming Amendments: The separate instances of the sexual abuse or to engage in sexual activity, or an Commentary to § 2A3.1 captioned sexual exploitation of a minor by the attempt or a conspiracy to commit any ‘‘Application Notes’’ is amended by defendant, whether or not the abuse or of the above offenses. striking Notes 5 and 7 in their entirety; exploitation (A) occurred during the If the defendant engaged in the sexual and by redesignating Note 6 as Note 5. course of the offense; (B) involved the abuse or exploitation of a minor at any The Commentary to § 2A3.2 captioned same or different victims; or (C) resulted time (whether or not such abuse or ‘‘Application Notes’’ is amended by in a conviction for such conduct. exploitation occurred during the course striking Note 8. VerDate 11 The Commentary to § 2A3.3 captioned trafficking and possession counts and a count of trafficking in the same ‘‘Application Notes’’ is amended by pursuant to § 3D1.2(d). This grouping material). In such cases, the harm striking Note 4. provision does not require a involved in producing the material is The Commentary to § 2A3.4 captioned determination of whether counts separate and distinct from the harm ‘‘Application Notes’’ is amended by involve the same victim in order to involved in trafficking in that striking Note 8. calculate a combined adjusted offense material.’’. (6) Supervised Release Provision: level for multiple counts of conviction. The Commentary to § 2G2.4 captioned Section 5D1.2 is amended by striking Option Two would not permit the ‘‘Application Notes’’ is amended by subsection (b) in its entirety and grouping of multiple counts of child adding at the end the following inserting the following: pornography trafficking and possession application note: ‘‘(b) Except as otherwise provided— pursuant to § 3D1.2. This option is ‘‘3. For purposes of Chapter Three, (1) The term of supervised release based on the premise that multiple acts Part D (Multiple Counts), multiple imposed shall be not less than any of possession or trafficking represent counts involving the possession of statutorily required term of supervised separate instances of fear and risk of material involving the exploitation of a release; and harm, and would require the assignment minor are not to be grouped under (2) If the instant offense of conviction of units pursuant to § 3D1.4. § 3D1.2 (Groups of Closely Related is a sex offense, the term of supervised Counts). Such counts do not involve release shall be the maximum term of Proposed Amendment ‘substantially the same harm’ for supervised release authorized by (1) Option One: Section 3D1.2(d) is purposes of § 3D1.2.’’. statute.’’. amended by inserting after ‘‘§§ 2F1.1, Section 3D1.2(d) is amended by The Commentary to § 5D1.2 captioned 2F1.2;’’ the following new line: inserting ‘‘, 2G2.2, 2G2.4;’’ after ‘‘Application Notes’’ is amended in ‘‘§§ 2G2.2, 2G2.4;’’. ‘‘2G2.1’’. Note 1 by inserting ‘‘Safety Valve (2) Option Two: The Commentary to Cases.—’’ before ‘‘A defendant who § 2G2.1 captioned ‘‘Application Notes’’ Part (C): Enhancement for qualifies’’; in Note 2 by inserting is amended in Note 2 by adding at the Transportation Offenses and Other ‘‘Supervised Release Cases.—’’ before end the following new paragraph: Amendments ‘‘Upon motion of the Government’’; by ‘‘Similarly, [multiple counts involving Synopsis: Part C of the proposed redesignating Notes 1 and 2 as Notes 2 the exploitation of the same minor are amendment responds to the directive in and 3, respectively; and by inserting not to be grouped under § 3D1.2 and] the Act to provide an enhancement for before Note 2, as redesignated by this counts involving the production of offenses under chapter 117 of title 18, amendment, the following: material involving the exploitation of a United States Code, involving the ‘‘1. Definition.—For purposes of this minor are not to be grouped under transportation of minors for prostitution guideline, the term ‘sex offense’ means § 3D1.2 with counts involving the or prohibited sexual conduct. Pursuant an offense under [chapter 109A,] trafficking of material involving the to the authority in the Act and pursuant [chapter 109A perpetrated against a exploitation of a minor, even in cases in to the Commission’s general authority minor,] chapter 110 (not including which the production count and the under 28 U.S.C. 994 to promulgate trafficking, receipt, or possession of, trafficking count involve the same guideline amendments, the amendment child pornography), or chapter 117 of minor (i.e., cases that involve both a proposes a number of offense level title 18, United States Code, or an count of producing material involving increases in § 2A3.2, the ‘‘statutory attempt or a conspiracy to commit any the exploitation of a minor and a count rape’’ guideline, and in § 2A3.4, the such offense.’’. of trafficking in the same material). In abusive sexual contact guideline. Issue for Comment: Option Two such cases, the harm involved in Specifically, the amendment proposes proposes a new guideline at § 4B1.6 that producing the material is separate and to do the following: would provide a five-level increase and distinct from the harm involved in (1) Distinguish between chapter 117 a minimum offense level of level [32] if trafficking in that material.’’. violations that involve the commission the defendant is a sexual predator. As The Commentary to § 2G2.2 captioned of an underlying sexual act and those highlighted by the bracketed language ‘‘Application Notes’’ is amended by violations (e.g., sting cases) that do not, ‘‘[and][or]’’ in § 4B1.6(b)(2), the adding at the end the following by providing in an alternative base Commission invites comment regarding application note: offense level in § 2A3.2 three additional whether the court must find both that ‘‘4. For purposes of Chapter Three, levels for chapter 117 violations that the defendant is a sexual predator and Part D (Multiple Counts), multiple also involve an underlying sexual act. that the defendant engaged in a pattern counts involving trafficking in, (2) Provide an across-the-board three- of activity involving sexual abuse or receiving, transporting, shipping, level increase in the base offense level exploitation, or whether a finding of one advertising, or possessing with the for offenses sentenced under § 2A3.2, of these factors would be sufficient in intent to distribute, material involving such that the base offense level (A) for order for the five-level increase to apply. the exploitation of a minor are not to be statutory rape in its most basic form grouped under § 3D1.2 (Groups of unaccompanied by aggravating conduct Part (B): Grouping Closely Related Counts). Such counts do is increased from level 15 to level 18; Synopsis: Part B of the proposed not involve ‘substantially the same (B) for a chapter 117 violation amendment resolves a circuit conflict harm’ for purposes of § 3D1.2. (unaccompanied by a sexual act) is regarding who the ‘‘victim’’ is in child Similarly, such counts are not to be increased from level 18 to level 21; and pornography cases for purposes of grouped under § 3D1.2 with counts (C) a chapter 117 violation grouping of multiple counts. The involving the production of material (accompanied by a sexual act) results in amendment proposes two options for involving the exploitation of a minor, a base offense level of level 24. This resolving the circuit conflict on the even in cases in which the production increase also maintains the grouping of multiple counts of child count and the trafficking count involve proportionality between §§ 2A3.2 and pornography trafficking, receipt, and the same minor (i.e., cases that involve 2G2.2. possession. Option One would allow both a count of producing material (3) Provide an enhancement of 2 grouping of child pornography involving the exploitation of a minor levels if the offense involved incest as VerDate 11 an additional enhancement to the two- ‘Incest’ means any sexual act between descendant (e.g., parent-child and level enhancement for custody, care, or the defendant and the victim in any case grandparent-child); (B) brother-sister of supervisory control, and provide in the in which the defendant-victim the whole or half blood; (C) sister- Commentary a definition of ‘‘incest’’ relationship is that of (A) ancestor- brother of the whole or half blood; (D) that tracks that found in the Model descendant (e.g., parent-child and uncle-nephew of the whole blood; (E) Penal Code. A review of the 228 case grandparent-child); (B) brother-sister of uncle-niece of the whole blood; (F) files from FY 99 that involved sex the whole or half blood; (C) sister- aunt-nephew of the whole blood; or (G) crimes against children revealed that brother of the whole or half blood; (D) aunt-niece of the whole blood. The 26% of the offenders were parents or uncle-nephew of the whole blood; (E) relationships referred to in this relatives of the victim. Additionally, 45 uncle-niece of the whole blood; (F) definition include blood relationships other offenders were either the aunt-nephew of the whole blood; or (G) without regard to legitimacy, the boyfriend/girlfriend of the parent, or a aunt-niece of the whole blood. The relationship of parent-child by step-parent or step grandparent of the relationships referred to in this adoption, and the relationship of step victim. definition include blood relationships parent-step child.’’; and by inserting (4) Amend the Statutory Index to without regard to legitimacy, the after ‘‘(sexual abuse)’’ the following include a reference to the statutory rape relationship of parent-child by paragraph: guideline, § 2A3.2, for chapter 117 adoption, and the relationship of step ‘‘ ‘Sexual act’ has the meaning given offenses. Often in ‘‘sting’’ cases, the parent-step child.’’; and by inserting that term in 18 U.S.C. 2246(2).’’. defendant travels across state lines in after ‘‘18 U.S.C. 2256(8).’’ the following The Commentary to § 2A3.2 captioned order to meet a minor for what the new paragraph: ‘‘Application Notes’’ is amended by defendant believes will be an encounter ‘‘ ‘Sexual act’ has the meaning given striking Note 2 in its entirety; and by involving consensual sexual activity. that term in 18 U.S.C. 2246(2).’’. redesignating Notes 3 through 7 as (5) Make conforming changes to the The Commentary to § 2A3.1 captioned Notes 2 through 6, respectively. ‘‘Application Notes’’ is amended in existing three-level decrease for chapter The Commentary to § 2A3.2 captioned 117 violations that do not include Note 2 by inserting ‘‘Custody, Care, and Supervisory Control Enhancement.—’’ ‘‘Application Notes’’ is amended in aggravating conduct so that such redesignated Note 2 (formerly Note 3) by violations receive the offense level before ‘‘Subsection’’. Section 2A3.2(a) is amended by inserting ‘‘Custody, Care, and applicable to statutory rape in its basic Supervisory Control Enhancement.—’’ form. redesignating subdivisions (1) and (2) as subdivisions (2) and (3), respectively; before ‘‘Subsection’’; and by inserting (6) Make technical changes (such as ‘‘(A)’’ after ‘‘(b)(1)’’. the addition of headings and the and by inserting after ‘‘Base Offense Level:’’ the following: The Commentary to § 2A3.2 captioned reordering of applications notes) not ‘‘Application Notes’’ is amended in intended to have substantive effect. ‘‘(1) [24], if the offense involved a violation of chapter 117 of title 18, redesignated Note 3 (formerly Note 4) by In addition, the amendment proposes inserting ‘‘Abuse of Position of Trust.—’’ to amend the guideline covering the United States Code and the commission, or attempted commission, of a sexual before ‘‘If the’’; and by inserting ‘‘(A) or production of child pornography, (B)’’ after ‘‘(b)(1)’’. § 2G2.1, to provide additional act;’’. Section 2A3.2(a) is amended in The Commentary to § 2A3.2 captioned enhancements to account for redesignated subdivision (2) by striking ‘‘Application Notes’’ is amended in aggravating conduct that may be present ‘‘18’’ and inserting ‘‘[21]’’; and by redesignated Note 4 (formerly Note 5) by in such cases, specifically, the inserting ‘‘, but not the commission, or inserting ‘‘Misrepresentation of production of sadistic or masochistic attempted commission, of a sexual act’’ Identity.—’’ before ‘‘The enhancement’’. material, serious bodily injury, or the before the semicolon. trafficking of produced materials. Note The Commentary to § 2A3.2 captioned Section 2A3.2(a) is amended in that the addition of the enhancement in ‘‘Application Notes’’ is amended in redesignated subdivision (3) by striking § 2G2.1 for the production of sadistic or redesignated Note 5 (formerly Note 6) by ‘‘15’’ and inserting ‘‘[18]’’. masochistic material would result in the inserting ‘‘Use of Computer or Internet- Section 2A3.2(b) is amended by Access Device.—’’ before ‘‘Subsection grouping of child pornography striking subdivision (4) in its entirety trafficking and production counts of (b)(3) provides’’. and inserting the following: The Commentary to § 2A3.2 captioned conviction under § 3D1.2(c), contrary to ‘‘(4) If (A) none of subsections (b)(1) the proposal in Option 2 of Part B of this ‘‘Application Notes’’ is amended in through (b)(3) applies; and (B) redesignated Note 6 (formerly Note 7) by amendment. These amendments also are subsection (a)(1) applies, decrease by 6 intended to restore proportionality in inserting ‘‘Cross Reference.—’’ before levels.’’; ‘‘Subsection (c)(1)’’. sentences between child pornography By redesignating subdivision (4) as production offenses and child subdivision (5); and by inserting after The Commentary to § 2A3.2 captioned pornography trafficking offenses. subdivision (3) the following: ‘‘Application Notes’’ is amended by striking Note 8 in its entirety and Proposed Amendment ‘‘(4) If the offense involved incest, increase by 2 levels.’’. inserting the following: Section 2A3.1(b) is amended by The Commentary to § 2A3.2 captioned ‘‘7. Upward Departure adding at the end the following: ‘‘Application Notes’’ is amended in Considerations.—There may be cases in ‘‘(7) If the offense involved incest, Note 1 by striking ‘‘For purposes of this which the offense level determined increase by 2 levels.’’. guideline—’’ and inserting the under this guideline substantially The Commentary to § 2A3.1 captioned following: understates the seriousness of the ‘‘Application Notes’’ is amended in ‘‘Definitions.—For purposes of this offense. In such cases, an upward Note 1 by striking ‘‘For purposes of this guideline: departure may be warranted. The guideline—’’ and inserting the ‘Incest’ means any sexual act between following is a non-exhaustive list of following: the defendant and the victim in any case factors that the court may consider in ‘‘Definitions.—For purposes of this in which the defendant-victim determining whether an upward guideline: relationship is that of (A) ancestor- departure is warranted: VerDate 11 (A) The defendant’s criminal history Exploitation of a Minor; Receiving, commit a stalking offense. Several includes a prior sentence for conduct Transporting, Advertising, or Possessing technical changes were also made to that is similar to the instant offense. Material Involving the Sexual these statutes. (B) The defendant committed the Exploitation of a Minor with Intent to The Act also includes a directive to criminal sexual act in furtherance of a Traffic).’’. the Commission to amend the federal commercial scheme such as pandering, Appendix A (Statutory Index) is sentencing guidelines to reflect the transporting persons for the purpose of amended in the line referenced to ‘‘18 changes made to 18 U.S.C. 2261 with prostitution, or the production of U.S.C. § 2423(b)’’ by inserting ‘‘, 2A3.4’’ specific consideration to be given to the pornography.’’. after ‘‘2A3.3’’. following factors: (i) Whether the Federal Sentencing Section 2A3.4(b) is amended by Issues for Comment adding at the end the following: Guidelines relating to stalking offences ‘‘(6) If the offense involved incest, (1) The Commission invites comment should be modified in light of the increase by 2 levels. on whether and, if so, to what extent, amendment made by this subsection; (7) If the offense involved a violation the guidelines covering sexual abuse, and of chapter 117 of title 18, United States §§ 2A3.1 (Criminal Sexual Abuse), (ii) Whether any changes the Code, increase by 3 levels.’’. 2A3.2 (Criminal Sexual Abuse of a Commission may make to the Federal The Commentary to § 2A3.4 captioned Minor (Statutory Rape)), 2A3.3 Sentencing Guidelines pursuant to ‘‘Application Notes’’ is amended in (Criminal Sexual Abuse of a Ward), and clause (i) should also be made with Note 1 by striking ‘‘For purposes of this 2A3.4 (Abusive Sexual Contact), should respect to offenses under chapter 110A guideline—’’ and inserting the be amended to provide an enhancement of title 18, United States Code (stalking following: if the offense involved the and domestic violence offenses). transportation, persuasion, inducement, This proposed amendment increases ‘‘Definitions.—For purposes of this enticement, or coercion of a child to the base offense level in § 2A6.2 guideline: engage in prohibited sexual conduct. Do (Stalking or Domestic Violence) and ‘Incest’ means any sexual act between enhancements added to these guidelines adds a cross reference to § 1B1.5 the defendant and the victim in any case (that became effective November 1, (Interpretation of References to Other in which the defendant-victim 2000) for use of a computer and/or Offense Guidelines). relationship is that of (A) ancestor- misrepresentation of a criminal For several reasons, the proposed descendant (e.g., parent-child and participant’s identity sufficiently amendment treats the new stalking by grandparent-child); (B) brother-sister of provide an appropriate enhancement, or mail offense the same under the the whole or half blood; (C) sister- is an additional enhancement in these guidelines as other stalking offenses and brother of the whole or half blood; (D) guidelines for other aggravating conduct covers it under § 2A6.2 (Stalking or uncle-nephew of the whole blood; (E) needed? Domestic Violence). First, the statutory uncle-niece of the whole blood; (F) (2) The Commission invites comment penalties for stalking by mail are the aunt-nephew of the whole blood; or (G) on whether and, if so, to what extent, same as the statutory penalties for other aunt-niece of the whole blood. The the guidelines covering sexual abuse, stalking offenses. Second, although relationships referred to in this §§ 2A3.1 (Criminal Sexual Abuse), there was some consideration to definition include blood relationships 2A3.2 (Criminal Sexual Abuse of a referring this new offense to § 2A6.1 without regard to legitimacy, the Minor (Statutory Rape)), 2A3.3 (Threatening or Harassing relationship of parent-child by (Criminal Sexual Abuse of a Ward), and Communications), stalking by mail adoption, and the relationship of step 2A3.4 (Abusive Sexual Contact), should offenses differ significantly from parent-step child.’’; be amended to provide an enhancement threatening communications in that and by inserting at the end the in order to maintain proportionality stalking by mail offenses require the following: between these guidelines and the defendant’s intent to kill, or injure a ‘‘ ‘Sexual act’ has the meaning given that guidelines covering pornography person, or place a person in reasonable term in 18 U.S.C. § 2246(2).’’. offenses, particularly, 2G2.2 (Trafficking fear of death or serious bodily injury. Section 2G2.1(b) is amended by In Material Involving the Sexual Third, referencing stalking by mail adding at the end the following: Exploitation of a Minor). offenses to § 2A6.1, could possibly ‘‘(4) If (A) the offense involved the result in these offenses receiving higher production of sexually explicit material Proposed Amendment: Stalking and penalties than other stalking offenses. that portrays sadistic or masochistic Domestic Violence For example, a defendant who writes a conduct or other depictions of violence; 6. Synopsis of Proposed Amendment: threatening letter, violates a protective or (B) the victim sustained serious This proposed amendment addresses order and engages in some conduct bodily injury, increase by [2][4] levels. section 1107 of the Victims of evidencing an intent to carry out such (5) If the offense involved any Trafficking and Violence Act 2000 (the threat, receives an offense level of level distribution of the sexually explicit ‘‘Act’’), Pub. L. 106–386. That section 20 under § 2A6.1. A defendant who material, increase by [2] levels.’’. amends 18 U.S.C. 2261, 2261A, and commits a stalking offense, violates a The Commentary to § 2G2.1 captioned 2262 to broaden the reach of these protective order, and actually commits ‘‘Application Notes’’ is amended by statutes to include international travel bodily injury on the person who is the striking Note 1 in its entirety and to stalk, commit domestic violence, or subject of the protection order, receives inserting the following: violate a protective order. Section an offense level of level 18 under ‘‘1. Definitions.—For purposes of this 2261A also is amended to broaden the § 2A6.2. Arguably, the second defendant guideline: category of persons protected by this should receive punishment, equal to, or ‘Minor’ means an individual who had statute to include intimate partners of perhaps greater than that received by not attained the age of 18 years. the person. The Act also amends section the first defendant. ‘Distribution’ has the meaning given 2261A to provide a new offense at Because of the concern with regard to that term in Application Note 1 of the section 2262A(2) which prohibits the the proportionality in sentencing Commentary to § 2G2.2 (Trafficking in use of the mail or any facility of stalking and domestic violence offenses Material Involving the Sexual interstate or foreign commerce to vis-a-vis other crimes, such as VerDate 11 threatening or harassing terms in 18 U.S.C. § 2266(2) and (7), (i) By not less than 3 offense levels communications, this amendment respectively.’’. above the applicable level in effect on proposes to increase the base offense The Commentary to § 1B1.5 captioned the date of the enactment of this Act; or level in § 2A6.2 from level 14 to level ‘‘Application Notes’’ is amended in (ii) If the resulting base offense level [16][18]. Setting the base offense level at Note 3 by inserting after the first after an increase under clause (i) would level [16] [18] for stalking and domestic sentence the following: be less than level 27, to not less than violence crimes ensures that these level 27; or ‘‘Consistent with the provisions of (B) If the offense created a substantial offenses are sentenced at or above the § 1B1.3 (Relevant Conduct), such other offense levels for offenses involving risk of harm to the life of a minor or offense includes conduct that may be a threatening and harassing incompetent, increase the base offense state or local offense or conduct that communications. level for the offense— This amendment also amends occurred under circumstances that (i) By not less than 6 offense levels Application Note 3 to § 1B1.5 would constitute a federal offense had above the applicable level in effect on (Interpretation of References to Other the conduct taken place within the the date of the enactment of this Act; or Offense Guidelines) to clarify generally territorial or maritime jurisdiction of the (ii) if the resulting base offense level the operation of cross references. A United States.’’. after an increase under clause (i) would review of the 16 cases sentenced under Proposed Amendment: Re-Promulgation be less than level 30, to not less than this guideline in fiscal years 1998 and of Emergency Amendment Regarding level 30. 1999 indicated that there is some Enhanced Penalties for Amphetamine Three options are now presented to confusion as to whether a cross or Methamphetamine Laboratory implement the directive on a permanent reference can and should be applied to Operators as Permanent Amendment basis. conduct that is not within federal Option 1.—Option 1 proposes to re- jurisdiction (e.g., conduct in violation of 7. Synopsis of Proposed Amendment: promulgate the emergency amendment state or local law) as is often the case in This proposed amendment addresses without any changes. The pertinent stalking and domestic violence offenses. the ‘‘substantial risk’’ directive in the parts of Option 1 are as follows: This new application note makes clear Methamphetamine and Club Drug Anti- (1) Guidelines Amended.—The that, unless otherwise specified, cross Proliferation Act of 2000 (the ‘‘Act’’), amendment provides new references in Chapter Two are to be section 102 of Pub. L. 106–310. enhancements in §§ 2D1.1 (Unlawful determined consistent with the The Act requires the Commission to Manufacturing, Importing, Exporting, or provisions of § 1B1.3 (Relevant promulgate amendments under Trafficking) and 2D1.10 (Endangering Conduct). Therefore, in a case in which emergency amendment authority. Human Life While Illegally the guideline includes a reference to use Although the Act generally provides Manufacturing a Controlled Substance) another guideline if the conduct that the Commission shall promulgate that also apply in the case of an attempt involved another offense, the other various amendments ‘‘as soon as or a conspiracy to manufacture offense includes conduct that may be a practicable,’’ the substantial risk amphetamine or methamphetamine. state or local offense or conduct that directive specifically requires that the The amendment does not amend occurred under circumstances that amendment implementing the directive § 2D1.11 (Unlawfully Distributing, would constitute a federal offense had shall apply ‘‘to any offense occurring on Importing, Exporting or Possessing a the conduct taken place within the or after the date that is 60 days after the Listed Chemical) or § 2D1.12 (Unlawful territorial or maritime jurisdiction of the date of the enactment’’ of the Act. Possession, Manufacture, Distribution, United States. Because of ex post facto concerns raised or Importation or Prohibited Flask or Equipment). Although offenses that Proposed Amendment by this 60-day clause, the Commission promulgated an amendment in involve the manufacture of Section 2A6.2(a) is amended by November 2000 that implemented the amphetamine or methamphetamine also striking ‘‘14’’ and inserting ‘‘[16][18]’’. substantial risk directive. The are referenced in Appendix (A) The Commentary to § 2A6.2 captioned amendment became effective December (Statutory Index) to §§ 2D1.11 and ‘‘Application Notes’’ is amended in 16, 2000. 2D1.12, the cross reference in these Note 1 by striking the last paragraph in guidelines, which applies if the offense The directive instructs the its entirety and inserting: involved the manufacture of a Commission to amend the federal ‘‘Stalking’ means (A) traveling with controlled substance, will result in sentencing guidelines with respect to the intent to kill, injure, harass, or application of § 2D1.1 and accordingly, any offense relating to the manufacture, intimidate another person and, in the the new enhancements. course of, or as a result of, such travel, attempt to manufacture, or conspiracy to (2) Structure.—The basic structure of placing the person in reasonable fear of manufacture amphetamine or the amendment to §§ 2D1.1 and 2D1.10 death or serious bodily injury to that methamphetamine in (A) the Controlled tracks the structure of the directive. person, the person’s immediate family, Substances Act (21 U.S.C. 801 et seq.); Accordingly, in § 2D1.1, the amendment including that person’s spouse or (B) the Controlled Substances Import provides a three-level increase and a intimate partner; or (B) using the mail and Export Act (21 U.S.C. 951 et seq.); minimum offense level of level 27 if the or any facility of interstate or foreign or (C) the Maritime Drug Law offense (A) involved the manufacture of commerce to engage in a course of Enforcement Act (46 U.S.C. App. 1901 amphetamine or methamphetamine; and conduct that places that person in et seq.). (B) created a substantial risk of either reasonable fear of the death of, or In carrying out this directive, the Act harm to human life or the environment. serious bodily injury to, any of the requires the Commission to provide the For offenses that created a substantial persons described in subdivision (A) of following enhancements— risk of harm to the life of a minor or an this note. See 18 U.S.C. § 2261A. (A) if the offense created a substantial incompetent, the amendment provides a ‘Immediate family’ has the meaning set risk of harm to human life (other than six-level increase and a minimum forth in 18 U.S.C. § 115(c)(2). ‘Course of a life described in subparagraph (B)) or offense level of 30. conduct’ and ‘spouse or intimate the environment, increase the base However, the structure of the partner’ have the meaning given those offense level for the offense— amendment in § 2D1.10 differs from that VerDate 11 in § 2D1.1 with respect to the first prong creates a substantial risk of harm to but maintains the alternative base of the enhancement (regarding human life or the environment, there is offense level 20 for all other controlled substantial risk of harm to human life or a strong argument that the increased substances. Although this option has to the environment). Specifically, the penalties should apply regardless of the less of an impact on lower level drug amendment provides a three-level type of controlled substances involved offenders than Option 2(a), it is not increase and a minimum offense level of in the offense. The pertinent parts of consistent with the approach otherwise level 27 if the offense involved the Option 2 are as follows: taken in Option 2 of expanding the manufacture of amphetamine or (1) § 2D1.1.—The enhancement in emergency amendment to cover all methamphetamine without making subsection (b)(6) is proposed to apply to controlled substances. application of the enhancement the manufacture of any controlled Finally, Option 2 makes the dependent upon whether the offense substance, not just to the manufacture of enhancement that applies if the offense also involved a substantial risk of either amphetamine or methamphetamine. created a substantial risk of harm to the harm to human life or the environment. The expansion to all controlled life of a minor or an incompetent Consideration of whether the offense substances in § 2D1.1 is rather applicable to all controlled substances. involved a substantial risk of harm to straightforward. Conforming changes are Conforming amendments are made to human life is unnecessary because made to the Commentary, but the the Commentary. § 2D1.10 applies only to convictions amendment to § 2D1.1 otherwise Option 3.—This option assumes that under 21 U.S.C. 858, and the creation of remains the same as the emergency the manufacture of amphetamine or a substantial risk of harm to human life amendment. methamphetamine is inherently is an element of a § 858 offense. (2) § 2D1.10.—Option 2’s proposed dangerous and poses a substantial risk Therefore, the base offense level already expansion to all controlled substances of harm to human life or the takes into account the substantial risk of in § 2D1.10 requires a restructuring of environment. Thus, the statutorily harm to human life. Consideration of the guideline (as it was amended by the directed minimum enhancement and whether the offense involved a emergency amendment). minimum offense level is automatic for First, Option 2 proposes to increase substantial risk of harm to the the manufacture of amphetamine or the alternative base offense level in environment is unnecessary because the methamphetamine. For all other subsection (a)(1) from ‘‘3 plus’’ to ‘‘6 directive predicated application of the controlled substances, it must be proved plus the offense level from the Drug enhancement on substantial risk of that the manufacturing process created Quantity Table in § 2D1.1’’. This harm either to human life or to the the substantial risk of harm. environment, and the creation of a proposed increase corresponds to the proposed deletion of subsection This option also combines the substantial risk of harm to human life is substantial risk enhancement with the necessarily present because it is an (b)(1)(A) of the emergency amendment. As explained above in the description of environmental damage enhancement in element of the offense. § 2D1.1(b)(5). (3) Determining ‘‘Substantial Risk of Option 1 under ‘‘Structure,’’ subsection Harm’’.—Neither the directive nor any (b)(1)(A) provides a three-level increase Proposed Amendment ‘‘if the offense involved the manufacture statutory provision defines ‘‘substantial Option 1: risk of harm’’. Based on an analysis of of amphetamine or methamphetamine,’’ Sections 2D1.1 and 2D1.10, as relevant case law that interpreted without making application of the amended by Amendment 608 (see ‘‘substantial risk of harm’’, the enhancement dependent upon whether Supplement to the 2000 Supplement to amendment provides commentary the offense also involved a substantial Appendix C), are repromulgated with setting forth factors that may be relevant risk of either harm to human life or the the following minor, editorial changes: in determining whether a particular environment. However, if the offense created a substantial risk of emergency amendment is to be The Commentary to § 2D1.1 captioned harm. expanded to apply to the manufacture of ‘‘Background’’ is amended by striking (4) Definitions.—The definition of all controlled substances, this ‘‘Public Law 106–878’’ and inserting ‘‘incompetent’’ is modeled after several enhancement no longer is appropriate. ‘‘Public Law 106–310’’. state statutes, which proved useful for In order not to lose the three-level The Commentary to § 2D1.10 purposes of this amendment. increase that was provided by this captioned ‘‘Background’’ is amended by The definition of ‘‘minor’’ has the enhancement, the three levels from this striking ‘‘Public Law 106–878’’ and meaning given that term in Application enhancement are built into the inserting ‘‘Public Law 106–310’’. Note 1 of the Commentary to § 2A3.1 alternative base offense level in Option 2: (Criminal Sexual Abuse). subsection (a)(1). Section 2D1.1(b)(6)(A) is amended in Option 2.—Option 2 proposes to Second, Option 2 proposes two subdivision (i) by striking expand the emergency amendment, as alternatives for addressing the minimum ‘‘amphetamine or methamphetamine’’ set forth in Option 1, to apply to the offense level of level 27 that also was and inserting ‘‘a controlled substance’’. manufacture of all controlled substances provided by the enhancement in Section 2D1.1(b)(6)(B) is amended in rather than only amphetamine or subsection (b)(1)(A). Option 2(a) subdivision (i) by striking methamphetamine. Although the increases the current alternative base ‘‘amphetamine or methamphetamine’’ directive specifically instructs the offense level in subsection (a)(2) from and inserting ‘‘a controlled substance’’. Commission to provide increased level 20 to level 27. Although this The Commentary to § 2D1.1 captioned penalties for the manufacture of option is consistent with expanding the ‘‘Application Notes’’ is amended in amphetamine and methamphetamine, entire emergency amendment to all Note 20 by inserting ‘‘Hazardous or the Commission may, under its general controlled substances, the impact of this Toxic Substances.—’’before ‘‘Subsection promulgation authority, expand the change is likely to be significant for (b)(5) applies’’. scope of an emergency amendment lower level drug offenders. Option 2(b) The Commentary to § 2D1.1 captioned when it re-promulgates the amendment proposes to add an additional ‘‘Application Notes’’ is amended in the as a permanent amendment. The reason alternative base offense level of level 27 heading to Note 21 by striking for the proposed expansion is that if the if the offense involved the manufacture ‘‘Amphetamine and Methamphetamine’’ manufacture of any controlled substance of amphetamine or methamphetamine, and inserting ‘‘Controlled Substances’’. VerDate 11 The Commentary to § 2D1.1 captioned (C) If the offense (i) involved the Issue for Comment: The Commission ‘‘Application Notes’’ is amended in manufacture of a controlled substance; invites comment regarding whether it Note 21(A)(iv) by striking and (ii) created a substantial risk of should provide, for controlled ‘‘amphetamine or methamphetamine’’ harm to the life of a minor or an substances other than amphetamine or and inserting ‘‘illicit’’. incompetent, increase by 6 levels. If the methamphetamine, an upward The Commentary to § 2D1.1 captioned resulting offense level is less than level departure rather than an enhancement ‘‘Background’’ is amended by inserting 30, increase to level 30.’’. provision if the manufacture of the ‘‘, in a broader form,’’ after ‘‘Subsection The Commentary to § 2D1.1 captioned controlled substance created a (b)(6) implements’’. ‘‘Application Notes’’ is amended in substantial risk of harm to human life or Section 2D1.10 is amended by striking Note 20 by inserting ‘‘(A)’’ after the environment. subdivisions (a) and (b) in their entirety ‘‘Subsection (b)(5)’’. and inserting the following: The Commentary to § 2D1.1 captioned Proposed Amendment: Mandatory ‘‘(a) Base Offense Level (Apply the ‘‘Application Notes’’ is amended in the Restitution for Amphetamine and greater): heading to Note 21 by striking Methamphetamine Offenses (1) 6 plus the offense level from the ‘‘Amphetamine and Methamphetamine’’ 8. Synopsis of Proposed Amendment: Drug Quantity Table in § 2D1.1; or and inserting ‘‘Controlled Substances’’. This proposed amendment implements [Option 2(a): (2) 27.] The Commentary to § 2D1.1 captioned the provision in the Methamphetamine [Option 2(b): (2) 27, if the offense ‘‘Application Notes is amended in Note Anti-Proliferation Act of 2000, section involved the manufacture of 21(A) by striking ‘‘subsection (b)(6)’’ 3613 of Pub. L. 106–310, that amends 21 amphetamine or methamphetamine; or and inserting ‘‘subsections (b)(5)(B) and U.S.C. 853(q) to provide mandatory (3) 20, otherwise.] (b) Specific Offense Characteristic (b)(5)(C)’’. restitution for offenses that involve the (1) If the offense created a substantial The Commentary to § 2D1.1 captioned manufacture of methamphetamine. The risk of harm to the life of a minor or an ‘‘Application Notes’’ is amended in proposed amendment amends § 5E1.1 incompetent, increase by 3 levels. If the Note 21(A)(iv) by striking (Restitution) to include a reference to 21 resulting offense level is less than level ‘‘amphetamine or methamphetamine’’ U.S.C. § 853(q) in the guideline 30, increase to level 30.’’ and inserting ‘‘illicit’’. provision regarding mandatory The Commentary to § 2D1.10 The Commentary to § 2D1.1 captioned restitution. ‘‘Application Notes’’ is amended in captioned ‘‘Application Notes’’ is Proposed Amendment amended in the heading to Note 1 by Note 21 subdivision (B) by striking striking ‘‘Associated with the ‘‘(b)(6)’’ and inserting ‘‘(b)(5)’’. Section 5E1.1 is amended in Manufacture of Amphetamine and The Commentary to § 2D1.1 captioned subsection (a)(1) by inserting ‘‘, or 21 Methamphetamine’’. ‘‘Background’’ is amended by inserting U.S.C. § 853(q)’’ after ‘‘3663A’’. The Commentary to § 2D1.10 ‘‘(A)’’ after ‘‘Subsection (b)(5)’’; by The Commentary to § 5E1.1 captioned captioned ‘‘Application Notes’’ is striking ‘‘Subsection (b)(6)’’ and ‘‘Background’’ is amended in the first amended in Note 1(A)(iv) by striking inserting ‘‘Subsections (b)(5)(B) and paragraph by inserting ‘‘, and 21 U.S.C. ‘‘amphetamine or methamphetamine (b)(5)(C)’’; by striking implements’’ and § 853(q)’’ after ‘‘3663A’’. inserting ‘‘implement, in a broader laboratory’’ and inserting ‘‘illicit’’. Proposed Amendment: Safety Valve The Commentary to § 2D1.10 form,’’; and by striking ‘‘Public Law captioned ‘‘Background’’ is amended by 106–878’’ and inserting ‘‘Public Law 9. Synopsis of Proposed Amendment: striking ‘‘Subsection’’ and inserting 106–310’’. This amendment proposes to delete the ‘‘Subsections (a)(2) and’’; by striking Section 2D1.10(a) is amended in language in § 2D1.1(b)(6) that limits ‘‘implements’’ and inserting subdivision (2) by striking ‘‘20’’ and application of the safety valve to ‘‘implement , in a broader form,’’; and inserting ‘‘27’’. defendants at offense levels 26 and by striking ‘‘Public Law 106–878’’ and Section 2D1.10(b) is amended by greater. The proposed amendment also inserting ‘‘Public Law 106–310’’. striking subdivision (1) in its entirety deletes commentary that is outdated Option 3: and inserting the following: because of the operation of § 5C1.2 Section 2D1.1(b) is amended by ‘‘(1) If the offense created a substantial (Limitation on Applicability on redesignating subdivision (7) as (6); and risk of harm to the life of a minor or an Statutory Minimum Sentences in by striking subdivisions (5) and (6) in incompetent, increase by 3 levels. If the Certain Cases). Conforming changes are their entirety and inserting the resulting offense level is less than level made to § 5C1.2. following: 30, increase to level 30.’’ ‘‘(5) (Apply the greater): The Commentary to 2D1.10 captioned Proposed Amendment (A) If the offense involved (i) an ‘‘Application Notes’’ is amended in the Section 2D1.1(b)(6) is amended by unlawful discharge, emission, or release title to Note 1 by striking ‘‘Associated striking ‘‘subdivisions (1)–(5)’’ and into the environment of a hazardous or with the Manufacture of Amphetamine inserting ‘‘subsections (a)(1)–(5)’’; and toxic substance; or (ii) the unlawful and Methamphetamine’’. by striking ‘‘and the offense level transportation, treatment, storage, or The Commentary to 2D1.10 captioned determined above is level 26 or greater’’. disposal of a hazardous waste, increase ‘‘Application Notes’’ is amended in The Commentary to § 2D1.1 captioned by 2 levels. Note 1(A)(iv) by striking ‘‘amphetamine ‘‘Application Notes’’ is amended by (B) If the offense (i) involved the or methamphetamine’’ and inserting striking Note 14 in its entirety; and by manufacture of amphetamine or ‘‘illicit’’. redesignating Notes 15 through 20 as methamphetamine; or (ii)(I) involved The Commentary to 2D1.10 captioned Notes 14 through 19, respectively. the manufacture of a controlled ‘‘Background’’ is amended by striking Section 5C1.2 is amended in the first substance other than amphetamine or ‘‘Subsection’’ and inserting paragraph by striking ‘‘In’’ and inserting methamphetamine; and (II) created a ‘‘Subsections (a)(2) and’’; by striking ‘‘(a) Except as provided in subsection substantial risk of harm to human life or ‘‘implements’’ and inserting (b), in’’. the environment, increase by 3 levels. If ‘‘implement, in a broader form,’’; and by Section 5C1.2 is amended by inserting the resulting offense level is less than striking ‘‘Public Law 106–878’’ and after subsection (a), as so designated by level 27, increase to level 27. inserting ‘‘Public Law 106–310’’. this amendment, the following: VerDate 11 ‘‘(b) In the case of a defendant (1) who Chemical, Product, or Material’’ after U.S.C. § 960(b)(3)) to provide penalties meets the criteria set forth in subsection ‘‘Equipment’’. of not more than 20 years for an offense (a); and (2) for whom the statutorily Section 2D1.12 is amended in each of that involves GHB. Additionally, the required minimum sentence is at least subsections (a)(1), (a)(2), and (b)(1), by Act added gamma butyrolactone five years, the offense level applicable inserting ‘‘flask,’’ after ‘‘prohibited’’; (‘‘GBL’’) to the list of List I chemicals in from Chapters Two (Offense Conduct) and by inserting ‘‘, chemical, product, or section 401(b)(1)(C) of the Controlled and Three (Adjustments) shall be not material’’ after ‘‘equipment’’. Substances Act (21 U.S.C. 841(b)(1)(C)). less than level 17.’’. The Commentary to § 2D1.12 Under the current structure of the The Commentary to § 5C1.2 captioned captioned ‘‘Statutory Provisions’’ is Drug Quantity Table in § 2D1.1, GHB ‘‘Application Notes’’ is amended in amended by inserting ‘‘§ ’’ before ‘‘843’’; and other Schedule I and II depressants, Notes 2 through 7 by striking and by inserting ‘‘, 864’’ after ‘‘(7)’’. with statutory maximum terms of ‘‘subdivision’’ each place it appears and The Commentary to § 2D1.12 imprisonment of 20 years, are sentenced inserting ‘‘subsection (a)’’; and by captioned ‘‘Application Notes’’ is identically to Schedule III substances, striking ‘‘subdivisions’’ in Note 3 and amended by striking the text of Note 1 which have a five-year statutory inserting ‘‘subsection (a)’’. in its entirety and inserting the maximum. The guidelines provide a following: maximum offense level of level 20 for Proposed Amendment: Anhydrous ‘‘If the offense involved the large-scale Ammonia these substances, which equates to a [(A)] manufacture, distribution, sentencing range of 33 to 44 months for 10. Synopsis of Proposed transportation, exportation, or offenders with minimal or no criminal Amendment: This proposed amendment importation of prohibited flasks, history (Criminal History Category I). addresses the new offense, at section equipment, chemicals, products, or The lack of penalty distinctions between 423 of the Controlled Substances Act material [; or (B) theft of anhydrous offenses with such divergent statutory (21 U.S.C. 864), of stealing or ammonia,] an upward departure may be maxima raises proportionality concerns. transporting across state lines warranted.’’. Recognizing the need to provide higher anhydrous ammonia knowing, Appendix A (Statutory Index) is penalties for the more serious offenses intending, or having reasonable cause to amended by inserting after the line involving Schedule I and II depressants, believe that such anhydrous ammonia referenced to ‘‘21 U.S.C. § 863’’ the the proposed amendment eliminates the will be used to manufacture a controlled following: maximum base offense level of level 20 substance. This new offense, created by ‘‘21 U.S.C. § 864 2D1.12’’. in the Drug Quantity Table of § 2D1.1 the Methamphetamine Anti- Issue for Comment: The Commission for Schedule I and II depressants Proliferation Act of 2000, section 3653 invites comment regarding whether the (including GHB). The same change is of Pub. L. 106–310, carries the statutory enhancement at § 2D1.12(b)(1) is made with respect to flunitrazepam, penalties contained in section 403 of the sufficient to account for the seriousness which, for sentencing purposes, is tied Controlled Substances Act (21 U.S.C. of attempting or intending to to Schedule I and II depressants. manufacture methamphetamine through 843), i.e., not more than fours years’ The proposed amendment also the use of anhydrous ammonia. Should, imprisonment (or not more than eight amends the Chemical Quantity Table in for example, subsection (b)(1) of years’ imprisonment in the case of § 2D1.11 to include GBL, a precursor for § 2D1.12 provide for an enhancement of certain prior convictions) or not more GHB, as a List I chemical. Offense levels up to [10] levels, or should an than 10 years’ imprisonment (or not for GBL were established in the same alternative method be provided to more than 20 years’ imprisonment in fashion as other list I chemicals. The account for the seriousness of using the case of certain prior convictions) if offense level for a specific quantity of anhydrous ammonia, such as a cross the offense involved the manufacture of GHB that can be produced from a given reference to § 2D1.11 using a conversion methamphetamine. quantity of GBL, assuming a 50 percent The proposed amendment references to methamphetamine if anhydrous yield, was determined using the Drug the new offense to § 2D1.12 (Unlawful ammonia is involved? Generally, what Quantity Table in § 2D1.1. From this Possession, Manufacture, Distribution, is the most appropriate penalty offense level, six levels were subtracted. or Importation of Prohibited Flask or structure for offenses involving This result identifies the corresponding Equipment; Attempt or Conspiracy). anhydrous ammonia? offense level in the Chemical Quantity Reference to this guideline is Proposed Amendment: GHB Table in § 2D1.11. appropriate because the new offense is 11. Synopsis of Proposed The proposed amendment also adds similar to other offenses already Iodine to the Chemical Quantity Table referenced to the guideline and having Amendment: This proposed amendment implements the Hillory J. Farias and in response to a recent classification of the same penalty structure, such as 21 iodine as a List II chemical. Iodine is U.S.C. 843(a)(6), which among other Samantha Reid Date-Rape Drug Prohibition Act of 2000, Pub. L. 106– used to produce hydrogen iodide which, things makes it unlawful to possess any in the presence of water, becomes chemical, product, or material which 172 (the ‘‘Act’’), which provides the emergency scheduling of gamma hydriodic acid, a list I chemical that is may be used to manufacture a a reagent used in the production of controlled substance. The proposed hydroxybutyric acid (‘‘GHB’’) as a Schedule I controlled substance under amphetamine and methamphetamine. amendment also makes minor, non- The penalties for Iodine were substantive changes to the guideline in the Controlled Substances Act when the drug is used illicitly. (There are established based upon its conversion to order to fully reference the new and hydriodic acid. existing offenses into the guideline. approved applications of GHB under the Federal Food, Drug, and Cosmetic Act, Proposed Amendment Proposed Amendment for which the drug is scheduled in Section 2D1.12 is amended in the Schedule III.) The Act also amended (1) Uncap Schedule I and II Depressants heading by inserting ‘‘Transportation, section 401(b)(1)(C) of the Controlled Section 2D1.1(c)(1) is amended by Exportation,’’ after ‘‘Distribution,’’; by Substances Act (21 U.S.C. 841(b)(1)(C)) striking the period after ‘‘Hashish Oil’’ striking ‘‘or’’ before ‘‘Equipment’’ and and section 1010(b)(3) of the Controlled and inserting a semi-colon; and by inserting a comma; and by inserting ‘‘, Substances Import and Export Act (21 inserting at the end the following: VerDate 11 ‘‘30,000,000 units or more of Depressants by striking ‘‘40,000 or Chemicals’’ by inserting at the end the Schedule I or II Depressants; 1,875,000 more’’ and inserting ‘‘At least 40,000 but following: units or more of Flunitrazepam.’’. less than 60,000’’; and in the line ‘‘At least 700 KG but less than 1,000 Section 2D1.1(c)(2) is amended by referenced to Flunitrazepam, by striking KG of Gamma-butyrolactone;’’; striking the period after ‘‘Hashish Oil’’ ‘‘2,500 or more’’ and inserting ‘‘At least and in the subdivision captioned and inserting a semi-colon; and by 2,500 but less than 3,750’’. ‘‘List II Chemicals’’ by striking the inserting at the end the following: The Commentary to § 2D1.1 captioned period after ‘‘Toluene’’ and inserting a ‘‘At least 10,000,000 but less than ‘‘Application Notes’’ is amended in semi-colon; and by inserting at the end 30,000,000 units of Schedule I or II Note 10 in the Drug Equivalency Tables the following: Depressants; At least 625,000 but less in the subdivision captioned ‘‘At least 1.76 KG but less than 2.51 than 1,875,000 units of Flunitrazepam.’’. ‘‘Flunitrazepam * * * ’’ in the heading KG of Iodine.’’. Section 2D1.1(c)(3) is amended by by striking ‘‘ *** ’’ after Section 2D1.11(d)(5) is amended in striking the period after ‘‘Hashish Oil’’ ‘‘Flunitrazepam’’; and by striking the the subdivision captioned ‘‘List I and inserting a semi-colon; and by following: Chemicals’’ by inserting at the end the inserting at the end the following: ‘‘ * * * Provided, that the combined following: ‘‘At least 3,000,000 but less than equivalent weight of flunitrazepam, all ‘‘At least 400 KG but less than 700 KG 10,000,000 units of Schedule I or II Schedule I or II depressants, Schedule of Gamma-butyrolactone;’’; Depressants; At least 187,500 but less III substances, Schedule IV substances, and in the subdivision captioned than 625,000 units of Flunitrazepam.’’. and Schedule V substances shall not ‘‘List II Chemicals’’ by striking the Section 2D1.1(c)(4) is amended by exceed 99.99 kilograms of marihuana.’’. period after ‘‘Toluene’’ and inserting a striking the period after ‘‘Hashish Oil’’ The Commentary to § 2D1.1 captioned semi-colon; and by inserting at the end and inserting a semi-colon; and by ‘‘Application Notes’’ is amended in the following: inserting at the end the following: Note 10 in the Drug Equivalency Tables ‘‘At least 1 KG but less than 1.76 KG ‘‘At least 1,000,000 but less than in the subdivision captioned ‘‘Schedule of Iodine.’’. 3,000,000 units of Schedule I or II I or II Depressants * * * ’’ in the Section 2D1.11(d)(6) is amended in Depressants; At least 62,500 but less heading by striking ‘‘*** ’’ after the subdivision captioned ‘‘List I than 187,500 units of Flunitrazepam.’’. ‘‘Schedule I or II Depressants’’; and by Chemicals’’ by inserting at the end the Section 2D1.1(c)(5) is amended by striking the following: following: striking the period after ‘‘Hashish Oil’’ ‘‘ * * * Provided, that the combined ‘‘At least 100 KG but less than 400 KG and inserting a semi-colon; and by equivalent weight of all Schedule I or II of Gamma-butyrolactone;’’; inserting at the end the following: depressants, Schedule III substances, and in the subdivision captioned ‘‘At least 700,000 but less than Schedule IV substances (except ‘‘List II Chemicals’’ by striking the 1,000,000 units of Schedule I or II flunitrazepam), and Schedule V period after ‘‘Toluene’’ and inserting a Depressants; At least 43,750 but less substances shall not exceed 59.99 semi-colon; and by inserting at the end than 62,500 units of Flunitrazepam.’’. kilograms of marihuana.’’. the following: Section 2D1.1(c)(6) is amended by ‘‘At least 250.8 G but less than 1 KG striking the period after ‘‘Hashish Oil’’ (2) Adding GBL and Iodine to the of Iodine.’’. and inserting a semi-colon; and by Chemical Quantity Table in § 2D1.11 Section 2D1.11(d)(7) is amended in inserting at the end the following: Section 2D1.11(d)(1) is amended by the subdivision captioned ‘‘List I ‘‘At least 400,000 but less than inserting at the end the following: Chemicals’’ by inserting at the end the 700,000 units of Schedule I or II ‘‘10,000 KG or more of Gamma- following: Depressants; At least 25,000 but less butyrolactone.’’. ‘‘At least 80 KG but less than 100 KG than 43,750 units of Flunitrazepam.’’. Section 2D1.11(d)(2) is amended in of Gamma-butyrolactone;’’; Section 2D1.1(c)(7) is amended by the subdivision captioned ‘‘List I and in the subdivision captioned striking the period after ‘‘Hashish Oil’’ Chemicals’’ by inserting at the end the ‘‘List II Chemicals’’ by striking the and inserting a semi-colon; and by following: period after ‘‘Toluene’’ and inserting a inserting at the end the following: ‘‘At least 3,000 KG but less than semi-colon; and by inserting at the end ‘‘At least 100,000 but less than 10,000 KG of Gamma-butyrolactone;’’; the following: 400,000 units of Schedule I or II and in the subdivision captioned ‘‘At least 200.64 G but less than 250.8 Depressants; At least 6,250 but less than ‘‘List II Chemicals’’ by striking the G of Iodine.’’. 25,000 units of Flunitrazepam.’’ period after ‘‘Toluene’’ and inserting a Section 2D1.11(d)(8) is amended in Section 2D1.1(c)(8) is amended by semi-colon; and by inserting at the end the subdivision captioned ‘‘List I striking the period after ‘‘Hashish Oil’’ the following: Chemicals’’ by inserting at the end the and inserting a semi-colon; and by ‘‘7.52 KG or more of Iodine.’’. following: inserting at the end the following: Section 2D1.11(d)(3) is amended in ‘‘At least 60 KG but less than 80 KG ‘‘At least 80,000 but less than 100,000 the subdivision captioned ‘‘List I of Gamma-butyrolactone;’’; units of Schedule I or II Depressants; At Chemicals’’ by inserting at the end the and in the subdivision captioned least 5,000 but less than 6,250 units of following: ‘‘List II Chemicals’’ by striking the Flunitrazepam.’’. ‘‘At least 1,000 KG but less than 3,000 period after ‘‘Toluene’’ and inserting a Section 2D1.1(c)(9) is amended by KG of Gamma-butyrolactone;’’; semi-colon; and by inserting at the end striking the period after ‘‘Hashish Oil’’ and in the subdivision captioned the following: and inserting a semi-colon; and by ‘‘List II Chemicals’’ by striking the ‘‘At least 150.48 G but less than inserting at the end the following: period after ‘‘Toluene’’ and inserting a 200.64 KG of Iodine.’’. ‘‘At least 60,000 but less than 80,000 semi-colon; and by inserting at the end Section 2D1.11(d)(9) is amended in units of Schedule I or II Depressants; At the following: the subdivision captioned ‘‘List I least 3,750 but less than 5,000 units of ‘‘At least 2.51 KG but less than 7.52 Chemicals’’ by inserting at the end the Flunitrazepam.’’. KG of Iodine.’’. following: Section 2D1.1(c)(10) is amended in Section 2D1.11(d)(4) is amended in ‘‘At least 40 KG but less than 60 KG the line referenced to Schedule I or II the subdivision captioned ‘‘List I of Gamma-butyrolactone;’’; VerDate 11 and in the subdivision captioned guideline structure can lead to disparate enhancement and the sophisticated ‘‘List II Chemicals’’ by striking the penalty levels among similar cases, means enhancement. The scheme to period after ‘‘Toluene’’ and inserting a depending on how the offense is defraud more than one victim semi-colon; and by inserting at the end charged, and the court’s choice of the enhancement is deleted for two reasons: the following: applicable guideline pursuant to (1) If the adjustment were retained ‘‘At least 100.32 G but less than § 1B1.2. unmodified in a consolidated guideline, 150.48 G of Iodine.’’. Bracketed place holders are indicated it would apply to cases currently Section 2D1.11(d)(10) is amended in for the loss table (see Part B), definition sentenced under § 2B1.1 where it is not the subdivision captioned ‘‘List I of loss (see Part C), and the options currently applicable; and (2) in its Chemicals’’ by inserting at the end the regarding two circuit conflicts: Tax loss current form it might be hard to justify following: (see Part F) and new commentary providing a two-level increase in every ‘‘Less than 40 KG of Gamma- regarding the application of subsection case in which there is more-than-one butyrolactone;’’; (b)(3) regarding a ‘‘person in the victim, particularly in the face of the and in the subdivision captioned business of receiving and selling new Chapter Three adjustment in the ‘‘List II Chemicals’’ by striking the receiving stolen property,’’ and a vulnerable victim guideline (§ 3A1.1) period after ‘‘Toluene’’ and inserting a scholarship fraud enhancement and that provides (only) a two-level increase semi-colon; and by inserting at the end accompanying application note. In the if the offense involved ‘‘a large number the following: event that the Commission does not of vulnerable victims.’’ ‘‘Less than 100.32 G of Iodine.’’. promulgate the consolidation proposal, As an alternative to the scheme to Proposed Amendment: Economic Crime these bracketed options can be defraud more than one victim Package promulgated separately. enhancement, this amendment provides Base Offense Level: The proposal calls an enhancement based on the number of 12. Synopsis of Proposed for a base offense level of level 6. The victims, to provide additional Amendment: The Economic Crime current base offense level for fraud punishment for offenses involving Package consists of six parts. Part A is offenses is level 6; the base offense level multiple victims. The victim table a proposal to consolidate the theft, for theft and property destruction proposes building in the current ‘‘mass- property destruction and fraud offenses currently is level 4. Starting marketing’’ enhancement as an guidelines. Part B contains three options with the base offense level 6, the alternative way of triggering the two- for the loss table for the consolidated proposed loss table for the consolidated level increase provided if there were guideline and two options for a revised guideline envisions two-level more than 4 and less than 50 victims. loss table in § 2T4.1 (Tax Table). Part C increments for increasing loss amounts The amendment proposes that if the contains two proposals to amend the beginning at $5,000. Currently the loss proposed victim table is adopted, and a definition of loss for the consolidated table for theft offenses provides one- victim enhancement is applicable in a guideline. Part D proposes necessary level enhancements when loss exceeds given case, then the enhancement under changes to several guidelines which $100, $1,000, $2,000, and $5,000, 3A1.1(b)(2) for ‘‘a large number of refer to the loss tables in either § 2B1.1 respectively, so that a theft offense vulnerable victims’’ could not also (Larceny, Embezzlement, and Other involving more than $2,000 in loss apply in that case. Forms of Theft) or § 2F1.1 (Fraud and results in an offense level of level 7, Theft of Undelivered U.S. Mail: The Deceit) if the Commission were to adopt with the possibility of an additional current ‘‘floor’’ offense level of level 6 one of the proposed new loss tables. increase for more-than-minimal for the theft of undelivered United Part E contains the technical and planning. Under the proposed States mail is proposed to be deleted conforming amendments to the consolidated loss table, a theft offense because the proposal raises the base guidelines that would be necessary as a involving more than $2,000 (but less offense level from level 4 to 6 for such result of the theft and fraud than $5,000) would receive the base offenses, making the floor unnecessary. consolidation. Part F contains a offense level of level 6, with no possible However, if the Commission adopts the proposal to resolve a circuit split increase for more-than-minimal enhancement providing for a two-level regarding the computation of tax loss in planning. reduction if loss is less than $2,000, it § 2T1.1. In contrast, under the proposed table, might be necessary to retain this floor of a fraud offense involving the same level 6. Part A. Consolidation of Theft, Property amount of loss would start with the In the Business of Receiving and Destruction and Fraud same base offense level of level 6 but Selling Stolen Property: Section Synopsis of Proposed Amendment: would receive no additional increase 2B1.1(b)(4)(B) provides a 2-level This amendment consolidates the three based on the loss amount. Under the enhancement if the offense involved guidelines covering theft (§ 2B1.1), current fraud table, this offense would receiving stolen property and the property destruction (§ 2B1.3), and result in an offense level of level 7 for defendant was in the business of fraud (§ 2F1.1). Consolidation of these loss because the current fraud loss table receiving and selling stolen property. guidelines is proposed in response to provides a one-level increase for loss The proposed amendment addresses an concerns raised by probation officers, amounts in excess of $2,000 (but less issue that has arisen in case law judges, and practitioners over several than $5,000). regarding what conduct qualifies a years. The issues were among those More than Minimal Planning: Section defendant for the 4-level enhancement. discussed during Commission public 2F1.1(b)(2) currently provides a two- In determining the meaning of ‘‘in the hearings in 1997 and 1998 on level increase if the offense involved (A) business of’’, three circuits apply what difficulties posed by having different more than minimal planning, or (B) a has been coined the ‘‘fence test’’ in commentary in the theft and fraud scheme to defraud more than one which the court must consider (1) if the guidelines applicable to the calculation victim. The proposal deletes this stolen property was bought and sold, and definition of loss and related issues. enhancement from the consolidated and (2) to what extent the stolen Commentators have also noted that guideline. The more than minimal property transactions encouraged others although theft and fraud offenses are planning enhancement is deleted due to to commit property crimes. Three other conceptually similar, differences in the potential overlap between this circuits have adopted the ‘‘totality of the VerDate 11 circumstances test’’ that focuses on the The amendment adds an additional (1) Reckless voluntary manslaughter ‘‘regularity and sophistication’’ of the alternative enhancement that applies if (§ 2A1.4): level 14 defendant’s operation. Though the the offense involves a misrepresentation (2) Operating a common carrier under factors considered by all of these to a consumer in connection with influence of drugs or alcohol, no death circuits are similar, the approaches are obtaining, providing, or furnishing or serious bodily injury resulting different. financial assistance for an institution of (§ 2D2.3): level 13 The fence test involves making an higher education. This proposed (3) Arson creating a substantial risk of ultimate determination of whether (1) enhancement is targeted at the provider death or serious bodily injury (§ 2K1.4): the stolen property was bought and of the financial assistance or scholarship level 20 sold, and (2) the stolen property services, not the individual applicant (4) Immigration smuggling offense transactions encouraged others to for such assistance or scholarship, creating a substantial risk of death or commit property crimes. In making this consistent with the intent of the serious bodily injury (§ 2L1.1): 2-level determination, the court considers legislation. enhancement, ‘‘floor’’ of level 18 (5) Environmental offenses resulting factors such as the regularity of the Risk of Bodily Injury Enhancement: in risk of death or serious bodily injury defendant’s operation, the volume of the The proposal provides for two (§§ 2Q1.1, 2Q1.2, 2Q1.3, 2Q1.4): Offense business, the quick turnover of the substantive changes with respect to the level varies from level 17 to level 24. stolen items, the value of the stolen enhancement involving conscious or Gross Receipts Enhancement: The items, the sophistication of the reckless risk of serious bodily injury. proposed amendment presents two defendant’s operation, any use of a First, it increases the ‘‘floor’’ offense options for modifying this legitimate business to facilitate the level from level 13 to level 14. Second, enhancement, which currently provides turnover of the stolen items, the it inserts ‘‘death’’ before the term ‘‘or a 4-level increase and a floor offense defendant’s connections with thieves serious bodily injury’’ because, as a level of level 24 for a defendant who and purchasers of the stolen items, and practical matter, a risk of serious bodily personally derives more than $1 million the use of technology and injury is likely also to entail a risk of in gross receipts from an offense that communications. death. Including ‘‘of death’’ also will affected a financial institution. The totality of the circumstances test provide consistency throughout the The gross receipts enhancement involves consideration of the Guidelines Manual. Currently, ‘‘risk of derives from a 1990 congressional circumstances in each case with death or serious bodily injury’’ appears directive requiring a minimum offense particular emphasis on the regularity in a number of other guidelines as either level of level 24 if the defendant derived and sophistication of the defendant’s an alternative base offense level, more than $1 million in gross receipts operation, looking at such factors as the specific offense characteristic, or invited from certain offenses that affected amount of income generated through upward departure (see, e.g., § 2A2.2 financial institutions. The Commission fencing activities, the value of the comment (n.3); § 2K1.4(a)(1)(2); had received and implemented a related property handled, the defendant’s past § 2Q1.4(b)(1)). The fraud guideline is the directive the previous year requiring activities, the defendant’s demonstrated only guideline in which risk of serious that the guidelines provide a interest in continuing or expanding the bodily injury appears as a sentencing ‘‘substantial period of incarceration’’ for operation, the use of technology and factor without a reference to ‘‘risk of certain specific offenses that communication, and the defendant’s death’’. ‘‘substantially jeopardize the safety and connections with thieves and This enhancement stems from a 1988 soundness of a federally insured purchasers of stolen property. congressional directive in which the financial institution.’’ In each case, the This amendment adopts the totality of Commission was instructed to amend Commission constructed an the circumstances test, basing the fraud guideline to provide an enhancement that was considerably application of the enhancement on the appropriate enhancement for a fraud broader and more severe than the circumstances surrounding the offense that creates a conscious or directive required. In part, this was the defendant and his business as opposed reckless risk of serious bodily injury. Commission’s way of responding to the to the effect the fencing operation has in The Commission was further instructed increases in statutory maximum encouraging others to commit crimes. to consider the appropriateness of a penalties for financial institution minimum enhancement of two offense offenses that Congress enacted in 1989 College Scholarship Fraud levels for this conduct. The legislation and 1990. The Commission had Subsection (b)(9)(D) implements the did not require a ‘‘floor’’ offense level. modestly increased the penalties for all the directive in section 3 of the College The proposal increases the ‘‘floor’’ fraud offenses with substantial Scholarship Fraud Prevention Act of from level 13 to level 14 to promote monetary losses in 1989. Rather than 1999, Pub. L. 106–420. The directive proportionality between this and other increase the loss table again, or adopt a requires the Commission to amend the guidelines covering similar conduct. generally applicable enhancement for guidelines: Within the current theft and fraud fraud against financial institutions, the * * * in order to provide for enhanced guidelines, there are three specific Commission elected to use the two penalties for any offense involving fraud or offense characteristics that have a higher congressionally directed enhancements misrepresentation in connection with the floor offense level than the current risk as mechanisms for ensuring more obtaining or providing of, or the furnishing of bodily injury enhancement: (1) ‘‘Chop stringent penalties for the more severe of information to a consumer on, any shops’’: level 14; (2) jeopardizing the forms of those offenses. scholarship, grant, loan, tuition, discount, solvency of a financial institution: level Option 1 deletes the 4-level increase award, or other financial assistance for 24; and (3) personally receiving more for deriving more than $1 million in purposes of financing an education at an than $1 million from a financial gross receipts from the offense but institution of higher education, such that institution: level 24 (congressionally those penalties are comparable to the base retains the ‘‘floor’’ offense level of level offense level for misrepresentation that the directed minimum). 24 for such conduct (in order to retain defendant was acting on behalf of a Other conceptually similar offense compliance with the congressional charitable, educational, religious, or political conduct under various guidelines is directive). The 4-level increase is organization, or a government agency. graded as follows: deleted under the assumption that a loss VerDate 11 table will be adopted that builds in Involving Fraud or Deceit’’; and by from a national cemetery, increase by 2 increases for relatively high dollar striking §§ 2F1.1 and 2F1.2 in their levels. losses; the deletion would prevent entirety. [(7) If the loss was $2,000 or less, double-counting for the fact of a high Chapter Two is amended by striking decrease by 2 levels.] dollar loss. Option 2 retains the current the heading to Part B; by striking the (8) If the offense involved (A) a floor offense level but reduces the 4- heading to Subpart 1; by striking the misrepresentation that the defendant level enhancement to 2 levels. Introductory Commentary to such was acting on behalf of a charitable, Sentencing Data: Due to the structure subpart; and by striking §§ 2B1.1 and educational, religious or political of this enhancement and the 2B1.3 in their entirety and inserting the organization, or a government agency; Commission’s data collection methods it following: (B) a misrepresentation or other is impossible to determine which ‘‘Part B—Basic Economic Offenses fraudulent action during the course of a offenders received increases for bankruptcy proceeding; (C) a violation jeopardizing a financial institution and 1. Theft, Embezzlement, Receipt of of any prior, specific judicial or which offenders received increases for Stolen Property, Property Destruction, administrative order, injunction, decree, gross receipts in excess of $1,000,000. Fraud and Insider Trading or process not addressed elsewhere in Nevertheless, 33 fraud offenders (0.5 %) Introductory Commentary the guidelines [; or (D) a received an increase under this misrepresentation to a consumer in These sections address basic forms of enhancement. connection with obtaining, providing, or property offenses: theft, embezzlement, furnishing financial assistance for an Additional Cross References fraud, forgery, counterfeiting (other than institution of higher education, increase (A) This proposal adds a more offenses involving altered or counterfeit bearer obligation of the United States), by 2 levels]. If the resulting offense level generally applicable cross reference that is less than level 10, increase to level 10. would apply whenever a broadly insider trading, transactions in stolen goods, and simple property damage or (9) If (A) the defendant relocated, or applicable fraud statute is used to reach participated in relocating, a fraudulent conduct that is more specifically destruction. (Arson is dealt with separately in Part K, Offenses Involving scheme to another jurisdiction to evade addressed in another Chapter Two law enforcement or regulatory officials; guideline [if the resulting offense level Public Safety.) These guidelines apply to offenses prosecuted under a wide (B) a substantial part of a fraudulent is greater]. scheme was committed from outside the Currently, Application Note 14 in the variety of federal statutes, as well as United States; or (C) the offense fraud guideline instructs the user to offenses that arise under the otherwise involved sophisticated move to another, more appropriate Assimilative Crimes Act. means, increase by 2 levels. If the Chapter Two guideline under § 2B1.1. Larceny, Embezzlement, and resulting offense level is less than level circumstances in which: (1) The Other Forms of Theft; Offenses 12, increase to level 12. defendant is convicted of a broadly Involving Stolen Property; Property (10) If the offense involved— applicable fraud statue (e.g., 18 U.S.C. Damage or Destruction; Fraud and (A) the possession or use of any § 1001), and (2) the convicted conduct is Deceit; Offenses Involving Altered or device-making equipment; more appropriately covered by another Counterfeit Instruments Other than (B) the production or trafficking of Chapter Two guideline specifically Counterfeit Bearer Obligations of the any unauthorized access device or tailored to that conduct. In essence, this United States counterfeit access device; or note is not a cross reference, but rather (C) (i) the unauthorized transfer or use a reminder of the principles enunciated (a) Base Offense Level: 6 of any means of identification in § 1B1.2 regarding application of the (b) Specific Offense Characteristics unlawfully to produce or obtain any guideline most appropriate for the (1) If the loss exceeded other means of identification; or (ii) the convicted conduct. Moreover, unlike the [$2000][$5,000], increase the offense possession of 5 or more means of more typical cross reference, under this level as follows: identification that unlawfully were instruction the user locates and applies [Loss Table Options—See Part B of produced from another means of the more appropriate guideline, even if this amendment] identification or obtained by the use of it yields an offense level lower than (2) If the offense— another means of identification, would have been obtained under the (A) (i) involved more than 4, but less fraud guideline. than 50, victims; or (ii) was committed increase by 2 levels. If the resulting Experience over the years through mass-marketing, increase by 2 offense level is less than level 12, demonstrates that this application note levels; or increase to level 12. is not well known or understood, and (B) involved 50 or more victims, (11) If the offense involved an hence, not applied consistently. One increase by 4 levels. organized scheme to steal vehicles or way of possibly addressing these (3) If the theft was from the person of vehicle parts, and the offense level is problems would be to convert the another, increase by 2 levels. less than level 14, increase to level 14. application note into a cross reference. (4) If the offense involved receiving (12) If the offense involved (A) the The more highly visible approach of stolen property, and the defendant was conscious or reckless risk of death or incorporating the instruction directly a person in the business of receiving serious bodily injury; or (B) possession into the guideline should ensure more and selling stolen property, increase by of a dangerous weapon (including a consistent application, without 2 levels. firearm) in connection with the offense, changing the basic policy of using the (5) If the offense involved increase by 2 levels. If the resulting cross reference to move to the guideline misappropriation of a trade secret and offense level is less than level 14, most appropriate for the conduct of the defendant knew or intended that the increase to level 14. which the defendant was convicted. offense would benefit any foreign (13) If the offense substantially government, foreign instrumentality, or jeopardized the safety and soundness of Proposed Amendment (Part A) foreign agent, increase by 2 levels. a financial institution, increase by 4 Chapter Two, Part F, is amended in (6) If the offense involved theft to, levels. If the resulting offense level is the heading by striking ‘‘—Offenses damage of, or destruction of property less than level 24, increase to level 24. VerDate 11 [Option 1: (14) If (A) the defendant 664, 1001–1008, 1010–1014, 1016–1022, of individuals to purchase fraudulent derived more than $1,000,000 in gross 1025, 1026, 1028, 1029, 1030(a)(4), life insurance policies. receipts from one or more financial 1030(a)(5), 1031, 1341–1344, 1361, ‘National cemetery’ means a cemetery institutions as a result of the offense; 1363, 1702, 1703 (if vandalism or (A) established under section 2400 of and (B) the offense level is less than malicious mischief, including title 38, United States Code; or (B) under level 24, increase to level 24.] destruction of mail is involved), 1708, the jurisdiction of the Secretary of the [Option 2: (14) If the defendant 1831, 1832, 2113(b), 2312–2317; 29 Army, the Secretary of the Navy, the derived more than $1,000,000 in gross U.S.C. § 501(c). For additional statutory Secretary of the Air Force, or the receipts from one or more financial provision(s), see Appendix A (Statutory Secretary of the Interior. institutions as a result of the offense, Index). ‘Trade secret’ is defined in 18 U.S.C. increase by 2 levels. If the resulting Application Notes: § 1839(3). offense level is less than level 24, 1. For purposes of this guideline.— 2. [Definition of Loss—See Part C of increase to level 24.] ‘Financial institution’’ as used in this this amendment] guideline, is defined to include any (c) Cross References 3. Controlled substances should be institution described in 18 U.S.C. §§ 20, valued at their estimated street value. 656, 657, 1005–1007, and 1014; any (1) If (A) a firearm, destructive device, [4. Enhancement for Business of state or foreign bank, trust company, explosive material, or controlled Receiving and Selling Stolen credit union, insurance company, substance was taken, or the taking of Property.— investment company, mutual fund, such item was an object of the offense; (A) In General.—The court shall savings (building and loan) association, or (B) the stolen property received, consider the totality of the union or employee pension fund; any transported, transferred, transmitted, or circumstances to determine whether a health, medical or hospital insurance possessed was a firearm, destructive defendant was in the business of device, explosive material, or controlled association; brokers and dealers registered, or required to be registered, receiving and selling stolen property for substance, apply § 2D1.1 (Unlawful purposes of subsection (b)(4). Manufacturing, Importing, Exporting, or with the Securities and Exchange Commission; futures commodity (B) Factors to Consider.—The Trafficking; Attempt or Conspiracy), following is a non-inclusive list of § 2D2.1 (Unlawful Possession; Attempt merchants and commodity pool operators registered, or required to be factors that the court may consider in or Conspiracy), § 2K1.3 (Unlawful determining whether the defendant was Receipt, Possession, or Transportation registered, with the Commodity Futures Trading Commission; and any similar in the business of receiving and selling of Explosive Materials; Prohibited stolen property for purposes of Transactions Involving Explosive entity, whether or not insured by the federal government. ‘‘Union or subsection (b)(4): Materials), or § 2K2.1 (Unlawful (i) The regularity or sophistication of Receipt, Possession, or Transportation employee pension fund’’ and ‘‘any health, medical, or hospital insurance the defendant’s activities; of Firearms or Ammunition; Prohibited (ii) The value and size of the Transactions Involving Firearms or association,’’ as used above, primarily include large pension funds that serve inventory of stolen property maintained Ammunition), as appropriate, if the by the defendant; resulting offense level is greater than many individuals (e.g., pension funds of large national and international (iii) The extent to which the that determined above. defendant’s activities encouraged or (2) If the offense involved arson, or organizations, unions, and corporations facilitated other crimes; or property damage by use of explosives, doing substantial interstate business), (iv) The defendant’s past activities apply § 2K1.4 (Arson; Property Damage and associations that undertake to involving stolen property.] by Use of Explosives), if the resulting provide pension, disability, or other 5. Application of Subsection (b)(8).— offense level is greater than that benefits (e.g., medical or hospitalization (A) In General.—The adjustments in determined above. insurance) to large numbers of persons. (3) If (A) none of subdivisions (1) or ‘Firearm’ and ‘‘destructive device’’ are subsection (b)(8) are alternative rather (2) of this subsection apply; (B) the defined in the Commentary to § 1B1.1 than cumulative. If, in a particular case, defendant was convicted under a statute (Application Instructions). however, more than one of the proscribing false, fictitious, or ‘Foreign instrumentality’ and ‘‘foreign enumerated factors applied, an upward fraudulent statements or representations agent’’ are defined in 18 U.S.C. § 1839(1) departure may be warranted. generally (e.g., 18 U.S.C. § 1001, § 1341, and (2), respectively. (B) Misrepresentation Defendant Was § 1342, or § 1343); and (C) the count of ‘From the person of another’ refers to Acting On Behalf of Charitable conviction establishes an offense more property, taken without the use of force, Institution.—Subsection (b)(8)(A) aptly covered by another guideline in that was being held by another person provides an adjustment for a Chapter Two, apply that other guideline or was within arms’ reach. Examples misrepresentation that the defendant [if the resulting offense level is greater]. include pick-pocketing or non-forcible was acting on behalf of a charitable, purse-snatching, such as the theft of a educational, religious or political (d) Special Instruction purse from a shopping cart. organization, or a government agency. (1) If the defendant is convicted under ‘Mass-marketing’ means a plan, Examples of conduct to which this 18 U.S.C. § 1030(a)(4) or (a)(5) the program, promotion, or campaign that is factor applies would include a group of minimum guideline sentence, conducted through solicitation by defendants who solicit contributions to notwithstanding any other adjustment, telephone, mail, the Internet, or other a non-existent famine relief organization shall be six months’ imprisonment. means to induce a large number of by mail, a defendant who diverts persons to (A) purchase goods or donations for a religiously affiliated Commentary services; (B) participate in a contest or school by telephone solicitations to Statutory Provisions: 7 U.S.C. §§ 6, 6b, sweepstakes; or (C) invest for financial church members in which the defendant 6c, 6h, 6o, 13, 23; 15 U.S.C. §§ 50, 77e, profit. The enhancement would apply, falsely claims to be a fund-raiser for the 77q, 77x, 78j, 78ff, 80b-6, 1644; 18 for example, if the defendant conducted school, or a defendant who poses as a U.S.C. §§ 225, 285–289, 471–473, 500, or participated in a telemarketing federal collection agent in order to 510, 553(a)(1), 641, 656, 657, 659, 662, campaign that solicited a large number collect a delinquent student loan. VerDate 11 (C) Fraud in Contravention of Prior pertaining to the execution or (C) Examples of Conduct Under Judicial Order.—Subsection (b)(8)(C) concealment of an offense. For example, (b)(10)(C)(i).—Examples of conduct to provides an enhancement if the in a telemarketing scheme, locating the which this subsection should apply are defendant commits a fraud in main office of the scheme in one as follows: contravention of a prior, official judicial jurisdiction but locating soliciting (i) A defendant obtains an or administrative warning, in the form operations in another jurisdiction would individual’s name and social security of an order, injunction, decree, or ordinarily indicate sophisticated means. number from a source (e.g., from a piece process, to take or not to take a specified Conduct such as hiding assets or of mail taken from the individual’s action. A defendant who does not transactions, or both, through the use of mailbox) and obtains a bank loan in that comply with such a prior, official fictitious entities, corporate shells, or individual’s name. In this example, the judicial or administrative warning offshore bank accounts also ordinarily account number of the bank loan is the demonstrates aggravated criminal intent would indicate sophisticated means. other means of identification that has and deserves additional punishment. If (C) Non-Applicability of been obtained unlawfully. it is established that an entity the Enhancement.—If the conduct that (ii) A defendant obtains an defendant controlled was a party to the forms the basis for an enhancement individual’s name and address from a prior proceeding that resulted in the under subsection (b)(9) is the only source (e.g., from a driver’s license in a official judicial or administrative action, conduct that forms the basis for an stolen wallet) and applies for, obtains, and the defendant had knowledge of adjustment under § 3C1.1 (Obstruction and subsequently uses a credit card in that prior decree or order, this of Justice), do not apply an adjustment that individual’s name. In this example, enhancement applies even if the under § 3C1.1. the credit card is the other means of defendant was not a specifically named 7. Application of Subsection (b)(10).— identification that has been obtained party in that prior case. For example, a (A) Definitions.— unlawfully. defendant whose business previously ‘Counterfeit access device’ (A) has the (D) Nonapplicability of subsection was enjoined from selling a dangerous meaning given that term in 18 U.S.C. (b)(10)(C)(i):—Examples of conduct to product, but who nonetheless engaged § 1029(e)(2); and (B) also includes a which this subsection should not apply in fraudulent conduct to sell the telecommunications instrument that has are as follows: product, is subject to this enhancement. been modified or altered to obtain (i) A defendant uses a credit card from This enhancement does not apply if the unauthorized use of a stolen wallet only to make a purchase. same conduct resulted in an telecommunications service. In such a case, the defendant has not enhancement pursuant to a provision ‘Telecommunications service’ has the used the stolen credit card to obtain found elsewhere in the guidelines (e.g., meaning given that term in 18 U.S.C. another means of identification. a violation of a condition of release § 1029(e)(9). (ii) A defendant forges another addressed in § 2J1.7 (Commission of ‘Device-making equipment’ (A) has individual’s signature to cash a stolen Offense While on Release) or a violation the meaning given that term in 18 U.S.C. check. Forging another individual’s of probation addressed in § 4A1.1 § 1029(e)(6); and (B) also includes (i) signature is not producing another (Criminal History Category)). any hardware or software that has been means of identification. (D) College Scholarship Fraud.— configured as described in 18 U.S.C. (E) Subsection (b)(10)(C)(ii).—This For the purposes of subsection § 1029(a)(9); and (ii) a scanning receiver subsection applies in any case in which (b)(8)(D)— referred to in 18 U.S.C. § 1029(a)(8). the offense involved the possession of 5 ‘Financial assistance’ means any ‘Scanning receiver’ has the meaning or more means of identification that scholarship, grant, loan, tuition, given that term in 18 U.S.C. § 1029(e)(8). unlawfully were produced or obtained, discount, award, or other financial ‘Means of identification’ has the regardless of the number of individuals assistance for the purposes of financing meaning given that term in 18 U.S.C. in whose name (or other identifying an education. ‘Institution of higher education’ has § 1028(d)(3), except that such means of information) the means of identification the meaning given that term in section identification shall be of an actual (i.e., were so produced or so obtained. 101 of the Higher Education Act of 1954 not fictitious) individual other than the (F) Upward Departure.—In a case (20 U.S.C. § 1001).] defendant or a person for whose involving unlawfully produced or (E) Non-Applicability of conduct the defendant is accountable unlawfully obtained means of Enhancement.—If the conduct that under § 1B1.3 (Relevant Conduct). identification, an upward departure may forms the basis for an enhancement ‘Produce’ includes manufacture, be warranted if the offense level does under (b)(8)(B) or (C) is the only design, alter, authenticate, duplicate, or not adequately address the seriousness conduct that forms the basis for an assemble. ‘Production’ includes of the offense. Examples may include adjustment under § 3C1.1 (Obstruction manufacture, design, alteration, the following: of Justice), do not apply an adjustment authentication, duplication, or (i) The offense caused substantial under § 3C1.1. assembly. harm to the victim’s reputation or credit 6. Application of Subsection (b)(9).— ‘Unauthorized access device’ has the record, or the victim suffered a (A) Definition of United States.— meaning given that term in 18 U.S.C. substantial inconvenience related to ‘United States’ means each of the 50 § 1029(e)(3). repairing the victim’s reputation or a states, the District of Columbia, the (B) Subsection (b)(10)(C)(i).—This damaged credit record. Commonwealth of Puerto Rico, the subsection applies in a case in which a (ii) An individual whose means of United States Virgin Islands, Guam, the means of identification of an individual identification the defendant used to Northern Mariana Islands, and other than the defendant (or a person for obtain unlawful means of identification American Samoa. whose conduct the defendant is is erroneously arrested or denied a job (B) Sophisticated Means accountable under § 1B1.3 (Relevant because an arrest record has been made Enhancement.—For purposes of Conduct)) is used without that in the individual’s name. subsection (b)(9)(C), ‘‘sophisticated individual’s authorization unlawfully to (iii)The defendant produced or means’’ means especially complex or produce or obtain another means of obtained numerous means of especially intricate offense conduct identification. identification with respect to one VerDate 11 individual and essentially assumed that fraud statute, and the count of not adequately reflect the seriousness of individual’s identity. conviction (or a stipulation as described the conduct. (G) Counterfeit Access Devices.—In a in § 1B1.2(a)) establishes an offense 16. Vulnerable Victims.— case involving any counterfeit access more aptly covered by another guideline (A) In General.—Except as provided device or unauthorized access device, [and the resulting offense level is in subdivision (b)(2)(B), if the fraud loss includes any unauthorized charges greater]. Sometimes, offenses involving exploited vulnerable victims, an made with the counterfeit access device fraudulent statements are prosecuted enhancement shall apply. See § 3A1.1 or unauthorized access device. In any under 18 U.S.C. § 1001, or a similarly (Hate Crime Motivation or Vulnerable such case, loss shall be not less than general statute, although the offense is Victim). $500 per access device. However, if the also covered by a more specific statute. (B) Nonapplicability of § 3A1.1(b)(2) unauthorized access device is a means Examples include false entries regarding in Certain Cases.—If subsection of telecommunications access that currency transactions, for which § 2S1.3 (b)(2)[(B)] applies, an enhancement identifies a specific telecommunications would be more apt, and false statements under § 3A1.1(b)(2) shall not apply. instrument or telecommunications to a customs officer, for which § 2T3.1 Background: This guideline covers account (including an electronic serial likely would be more apt. In certain offenses involving theft, stolen property, number/mobile identification number other cases, the mail or wire fraud property damage or destruction, fraud, (ESN/MIN) pair), and that means was statutes, or other relatively broad forgery, and counterfeiting (other than only possessed, and not used, during statutes, are used primarily as offenses involving altered or counterfeit the commission of the offense, loss shall jurisdictional bases for the prosecution bearer obligations of the United States). be not less than $100 per unused means. of other offenses. It also covers offenses involving altering 8. Chop Shop Enhancement.—For (B) Identification Documents.— or removing motor vehicle identification purposes of (b)(11), a minimum offense Offenses involving identification numbers, trafficking in automobiles or level is provided in the case of an documents, false identification automobile parts with altered or ongoing, sophisticated operation (such documents, and means of identification, obliterated identification numbers, as an auto theft ring or ‘chop shop’) to in violation of 18 U.S.C. § 1028, also are odometer laws and regulations, steal vehicles or vehicle parts, or to covered by this guideline. If the primary obstructing correspondence, the receive stolen vehicles or vehicle parts. purpose of the offense was to violate, or falsification of documents or records ‘‘Vehicles’’ refers to all forms of assist another to violate, the law relating to a benefit plan covered by the vehicles, including aircraft and pertaining to naturalization, citizenship, Employment Retirement Income watercraft. or legal resident status, apply § 2L2.1 Security Act, and the failure to 9. Substantially Jeopardized the (Trafficking in a Document Relating to maintain, or falsification of, documents Safety and Soundness of a Financial Naturalization) or § 2L2.2 (Fraudulently required by the Labor Management Institution.—For the purposes of Acquiring Documents Relating to Reporting and Disclosure Act. subsection (b)(13), an offense shall be Naturalization), as appropriate, rather Because federal fraud statutes often considered to have substantially than § 2F1.1. are broadly written, a single pattern of jeopardized the safety and soundness of 12. Continuing Financial Crimes offense conduct usually can be a financial institution if, as a Enterprise.—If the defendant is prosecuted under several code sections, consequence of the offense, the convicted under 18 U.S.C. § 225 as a result of which the offense of institution became insolvent; (relating to a continuing financial conviction may be somewhat arbitrary. substantially reduced benefits to crimes enterprise), the offense level is Furthermore, most fraud statutes cover pensioners or insureds; was unable on that applicable to the underlying series a broad range of conduct with extreme demand to refund fully any deposit, of offenses comprising the ‘continuing variation in severity. The specific payment, or investment; was so financial crimes enterprise.’ offense characteristics [and cross depleted of its assets as to be forced to 13. Upward Departure in Cases references] contained in this guideline merge with another institution in order Involving Theft of Information from a are designed with these considerations to continue active operations; or was Protected Computer.—In cases in mind. placed in substantial jeopardy of any of involving theft of information from a [Loss Background Commentary—See the above. ‘protected computer’, as defined in 18 Part C] 10. Application of Subsection of U.S.C. § 1030(e)(2)(A) or (B), an upward Theft from the person of another, such (b)(14).— departure may be warranted where the as pickpocketing or non-forcible purse- In General.—For the purposes of defendant sought the stolen information snatching, receives an enhanced (b)(14), the defendant shall be to further a broader criminal purpose. sentence because of the increased risk of considered to have derived more than 14. Multiple Count Indictments.— physical injury. This guideline does not $1,000,000 in gross receipts if the gross Some fraudulent schemes may result in include an enhancement for thefts from receipts to the defendant individually, multiple-count indictments, depending the person by means of force or fear; rather than to all participants, exceeded on the technical elements of the offense. such crimes are robberies and are $1,000,000. The cumulative loss produced by a covered under § 2B3.1 (Robbery). Gross Receipts From the Offense.— common scheme or course of conduct A minimum offense level of level 14 ‘Gross receipts from the offense’ should be used in determining the is provided for offenses involving an includes all property, real or personal, offense level, regardless of the number organized scheme to steal vehicles or tangible or intangible, which is obtained of counts of conviction. See Chapter vehicle parts. Typically, the scope of directly or indirectly as a result of such Three, Part D (Multiple Counts). such activity is substantial, but the offense. See 18 U.S.C. § 982(a)(4). 15. Upward Departure in Cases value of the property may be 11. Cross References.— Involving Access Devices.—Offenses particularly difficult to ascertain in (A) General Fraud Statutes.— involving access devices, in violation of individual cases because the stolen Subsection (c)(3) provides a cross 18 U.S.C. §§ 1028 and 1029, are also property is rapidly resold or otherwise reference to another Chapter Two covered by this guideline. In such a disposed of in the course of the offense. guideline in cases in which the case, an upward departure may be Therefore, the specific offense defendant is convicted of a general warranted where the actual loss does characteristic of ‘organized scheme’ is VerDate 11 used as an alternative to ‘loss’ in setting card, or a bank loan. This subsection Administration of Justice) applies. For a minimum offense level. provides a minimum offense level of example, waiting to commit the offense Use of false pretenses involving level 12, in part, because of the when no witnesses were present would charitable causes and government seriousness of the offense. The not alone constitute more than minimal agencies enhances the sentences of minimum offense level accounts for the planning. By contrast, luring the victim defendants who take advantage of fact that the means of identification that to a specific location, or wearing a ski victims’ trust in government or law were ‘bred’ (i.e., produced or obtained) mask to prevent identification, would enforcement agencies or the generosity often are within the defendant’s constitute more than minimal and charitable motives of victims. exclusive control, making it difficult for planning.’’. Taking advantage of a victim’s self- the individual victim to detect that the The Commentary to § 2B2.1 captioned interest does not mitigate the victim’s identity has been ‘stolen.’ ‘‘Application Notes’’ is amended in seriousness of fraudulent conduct; Generally, the victim does not become Note 1 by striking ‘‘’More than minimal rather, defendants who exploit victims’ aware of the offense until certain harms planning’’, ‘‘firearm,’’’ and inserting charitable impulses or trust in have already occurred (e.g., a damaged ‘‘‘Firearm,’’’. government create particular social credit rating or inability to obtain a The Commentary to § 2B2.1 captioned harm. In a similar vein, a defendant who loan). The minimum offense level also ‘‘Application Notes’’ is amended in has been subject to civil or accounts for the non-monetary harm Note 2 by striking ‘‘§ 2B1.1 (Larceny, administrative proceedings for the same associated with these types of offenses, Embezzlement, and Other Forms of or similar fraudulent conduct much of which may be difficult or Theft)’’ and inserting ‘‘§ 2B1.1 (Theft, demonstrates aggravated criminal intent impossible to quantify (e.g., harm to the Property Destruction, and Fraud).’’. and is deserving of additional individual’s reputation or credit rating, The Commentary to § 2B2.1 captioned punishment for not conforming with the inconvenience, and other difficulties ‘‘Application Notes’’ is amended by requirements of judicial process or resulting from the offense). The adding at the end the following: orders issued by federal, state, or local legislative history of the Identity Theft ‘‘4. ‘More than minimal planning’ administrative agencies. and Assumption Deterrence Act of 1998 means more planning than is typical for Offenses that involve the use of indicates that Congress was especially commission of the offense in a simple transactions or accounts outside the concerned with providing increased form. ‘More than minimal planning’ also United States in an effort to conceal punishment for this type of harm. exists if significant affirmative steps illicit profits and criminal conduct Subsection (b)(12)(B) implements, in a were taken to conceal the offense, other involve a particularly high level of broader form, the instruction to the than conduct to which § 3C1.1 sophistication and complexity. These Commission in section 110512 of Public (Obstructing or Impeding the offenses are difficult to detect and Law 103–322. Administration of Justice) applies. For require costly investigations and Subsection (b)(13) implements, in a example, checking the area to make sure prosecutions. Diplomatic processes broader form, the instruction to the no witnesses were present would not often must be used to secure testimony Commission in section 961(m) of Public alone constitute more than minimal and evidence beyond the jurisdiction of Law 101–73. planning. By contrast, obtaining United States courts. Consequently, a Subsection (b)(14) implements, in a building plans to plot a particular minimum level of 12 is provided for broader form, the instruction to the course of entry, or disabling an alarm these offenses. Commission in section 2507 of Public system, would constitute more than Subsection (b)(6) implements the Law 101–647. minimal planning.’’. instruction to the Commission in Subsection (d) implements the Issues for Comment section 2 of Public Law 105–101. instruction to the Commission in Subsection (b)(9) implements, in a section 805(c) of Public Law 104–132.’’. (1) The Commission invites comment broader form, the instruction to the The Commentary to § 1B1.1 captioned on whether and how the rules on Commission in section 6(c)(2) of Public ‘‘Application Notes’’ is amended in inchoate and partially completed Law 105–184. Note 1 by striking subdivision (f) in its offenses, as currently expressed in Subsections (b)(10)(A) and(B) entirety. § 2X1.1, § 1B1.2 application note 7, implement the instruction to the The Commentary to § 1B1.1 captioned § 2B1.1 application note 2 (last Commission in section 4 of the Wireless ‘‘Application Notes’’ is amended in paragraph), and § 2F1.1 application Telephone Protection Act, Public Law Note 4 in the second paragraph by Note 10, should apply under the 105–172. striking ‘‘For example, the adjustments proposed revised and consolidated Subsection (b)(10)(C) implements the from § 2F1.1(b)(2) (more than minimal economic crime guideline (§ 2B1.1) and directive to the Commission in section planning) and § 3B1.1 (Aggravating the proposed revised definition of 4 of the Identity Theft and Assumption Role) are applied cumulatively.’’. ‘‘loss.’’ If the current rules are retained, Deterrence Act of 1998, Public Law The Commentary to § 2A2.2 captioned how might they be revised to make their 105–318. This subsection focuses ‘‘Application Notes’’ is amended in application clearer, simpler, and more principally on an aggravated form of Note 2 by striking ‘‘more than minimal consistent? Alternatively, should the identity theft known as ‘affirmative planning,’’. current rules be replaced with identity theft’ or ‘breeding,’ in which a The Commentary to § 2A2.2 captioned permissive, encouraged downward defendant uses another individual’s ‘‘Application Notes’’ is amended by departure commentary? If the current name, social security number, or some adding at the end the following: rules are modified in regard to offenses other form of identification (the ‘means ‘‘4. ‘More than minimal planning’ sentenced under the revised, of identification’) to ‘breed’ (i.e., means more planning than is typical for consolidated guideline, what produce or obtain) new or additional commission of the offense in a simple conforming changes should be made in forms of identification. Because 18 form. ‘More than minimal planning’ also § 2X1.1 to ensure similar treatment for U.S.C. § 1028(d) broadly defines ‘means exists if significant affirmative steps similar offense conduct not subject to of identification,’ the new or additional were taken to conceal the offense, other the revised consolidated guideline? forms of identification can include than conduct to which § 3C1.1 (2) The Commission also requests items such as a driver’s license, a credit (Obstructing or Impeding the comment on whether, and if so, to what VerDate 11 extent it should provide an Increase in Tax loss (apply the greatest) Offense level enhancement for the destruction of, or Loss (apply the greatest) level damage to, unique or irreplaceable items (J) More than $2,500,000 ...... 24. of cultural heritage, archaeological, or (G) More than $80,000 ...... add 10. (K) More than $7,500,000 ...... 26. historical significance. As one means of (H) More than $200,000 ...... add 12. (L) More than $20,000,000 .... 28. (I) More than $500,000 ...... add 14. providing an enhancement, should the (M) More than $50,000,000 ... 30. (J) More than $1,200,000 ...... add 16. (N) More than $100,000,000 32.’’. Commission provide an alternative loss (K) More than $2,500,000 ...... add 18. calculation based on the cultural (L) More than $7,500,000 ...... add 20. Option Two heritage, archaeological, or historical (M) More than $20,000,000 ... add 22. (N) More than $50,000,000 ... add 24. significance of the item or based on the ‘‘Tax loss (apply the greatest) Offense level cost of the item’s restoration and repair? (O) More than $100,000,000 add 26.’’. See, e.g., United States v. Shumway, 47 (A) $5,000 or less ...... 6 F.3d 1413, 1424 (10th Cir. 1997). Option Two (B) More than $5,000 ...... 8 Alternatively, should the Commission ‘‘(1) If the loss exceeded $5,000, (C) More than $10,000 ...... 10 provide an upward departure provision increase the offense level as follows: (D) More than $30,000 ...... 12 for such cases, or some combination of (E) More than $70,000 ...... 14 an alternative measure of loss and an (F) More than $120,000 ...... 16 Loss (apply the greatest) Increase in upward departure provision? Should level (G) More than $200,000 ...... 18 (H) More than $400,000 ...... 20 the Commission also consider amending (I) More than $1,000,000 ...... 22 the current enhancement for damage to, (A) $5,000 or less ...... no increase. (B) More than $5,000 ...... add 2. (J) More than $2,500,000 ...... 24 or destruction of, property of a national (C) More than $10,000 ...... add 4. (K) More than $7,000,000 ...... 26 cemetery in §§ 2B1.1 and 2B1.3 to (D) More than $30,000 ...... add 6. (L) More than $20,000,000 ..... 28 include, for example, offenses involving (E) More than $70,000 ...... add 8. (M) More than $50,000,000 .... 30 human remains and funerary objects (F) More than $120,000 ...... add 10. (N) More than $100,000,000 .. 32.’’. located on federal or Indian land? (G) More than $200,000 ...... add 12. (H) More than $400,000 ...... add 14. Part C. Revised Definition of Loss for Part B. Loss Tables for Consolidated (I) More than $1,000,000 ...... add 16. Offenses Sentenced Pursuant to § 2B1.1, Guideline and § 2T4.1 (Tax Table) (J) More than $2,500,000 ...... add 18. the Consolidated Guideline Synopsis of Proposed Amendment: (K) More than $7,000,000 ...... add 20. Synopsis of Proposed Amendment: This amendment proposes three options (L) More than $20,000,000 .... add 22. The proposed amendment provides two for a loss table for the consolidated (M) More than $50,000,000 ... add 24. (N) More than $100,000,000 add 26.’’. major options to create one definition of guideline, § 2B1.1, and two options for loss for offenses sentenced pursuant to a loss table for § 2T4.1 (Tax Table). If a § 2B1.1 (Larceny, Embezzlement and decision is made to use the same table, Option Three Other Forms of Theft) and § 2F1.1 the effect would be to sentence the (1) If the loss exceeded $5,000, (Fraud and Deceit). Each option is offenses under both guidelines in a increase the offense level as follows: designed to resolve circuit conflicts, similar manner. This would represent a address case law and application issues, change from the current relationship in Increase in Loss (apply the greatest) and to promote consistency in which tax offenses generally face level application. To the extent practicable, slightly higher offense levels for a given (A) $5,000 or less ...... no increase. each of the proposed definitions retains loss amount than fraud and theft (B) More than $5,000 ...... add 2. existing language and concepts that offenses. (C) More than $10,000 ...... add 4. have not proven problematic. The first Regarding the tables for both (D) More than $20,000 ...... add 6. guidelines, each option attempts to (E) More than $40,000 ...... add 8. option was prepared by the Commission compress the loss table by (generally) (F) More than $80,000 ...... add 10. and is intended to invite comment on moving from one-level to two-level (G) More than $160,000 ...... add 12. the major issues related to the definition increments, thus increasing the range of (H) More than $400,000 ...... add 14. of loss, including those presented in the losses that correspond to an individual (I) More than $1,000,000 ...... add 16. second option. The second option was (J) More than $2,500,000 ...... add 18. increment. This is designed to minimize prepared by the Criminal Law (K) More than $7,5000,000 .... add 20. Committee (CLC) of the Judicial fact-finding and the appearance of false (L) More than $20,000,000 .... add 22. precision. Conference and is included for (M) More than $50,000,000 ... add 24. publication in its entirety in recognition (N) More than $125,000,000 add 26.’’. Proposed Amendment (Part B) of the years of effort that the members Sections 2B1.1(b)(1), as amended by Section 2T4.1 is amended by striking of that committee have put into the Part A of this amendment, is further the table in its entirety and inserting the preparation of a new definition of loss. The proposed amendment would amended to read as follows: following: accomplish the following purposes: Option One Option One (1) Combine the loss definitions in the ‘‘(1) If the loss exceeded $2,000, commentary to the theft and fraud increase the offense level as follows: Tax loss (apply the greatest) Offense level guidelines into one definition with a simplified format; (A) $2,000 or less ...... 6. Loss (apply the greatest) Increase in (2) Provide definitions for key level (B) More than $2,000 ...... 8. concepts of loss, including ‘‘actual (C) More than $5,000 ...... 10. loss’’, ‘‘pecuniary harm’’, and ‘‘intended (A) $2,000 or less ...... no increase. (D) More than $12,500 ...... 12. (B) More than $2,000 ...... add 1. (E) More than $30,000 ...... 14. loss’’; (C) More than $5,000 ...... add 2. (F) More than $80,000 ...... 16. (3) Provide two options for a (D) More than $10,000 ...... add 4. (G) More than $200,000 ...... 18. causation standard: (A) ‘‘but for’’ (E) More than $20,000 ...... add 6. (H) More than $500,000 ...... 20. causation standard (and an example) (F) More than $40,000 ...... add 8. (I) More than $1,200,000 ...... 22. plus reasonable foreseeability; and (B) VerDate 11 combine current loss concepts from is greater than loss; (C) provide for use defendant H has contracted to purchase. §§ 2B1.1 and 2F1.1 and make clear ‘‘but of gain when loss cannot reasonably be Defendant D does not actually conduct for’’ causation is required but without determined or when gain is greater than an inspection, but rather mails concept of reasonable foreseeability; loss; and (D) allow use of gain as an defendant H a fraudulent inspection (4) Clarify the concept of intended alternative when loss cannot reasonably report stating that the property is free of loss in terms of the applicability of any be determined but the gain can be all defects. Two days before closing, an credits or offsets, and to resolve a circuit determined; underground oil tank—which must be conflict to provide that intended loss (14) Provide that the special loss rules removed before the sale may close—is includes unlikely or impossible losses establish a minimum loss rule in the discovered on the property. Due to the that are intended; specific context described; resulting unavoidable delay caused by (5) Provide two options for when loss (15) Further revise the special rule on the need to remove the tank, the closing should be measured: (A) at the time of determining loss in cases involving must be postponed. Because defendant sentencing; and (B) when the offense diversion of government program H’s lease on his present residence was detected; benefits to resolve an apparent circuit expired on the original closing date, (6) Provide three options for what conflict; defendant H must locate temporary should be considered the time of (16) Reformat and clarify the housing at additional cost. Further, detection: (A) when the offense is provisions dealing with departures, defendant H loses the financing he had discovered by a victim or governmental including a bracketed option that would obtained and must procure new agency; (B) when the defendant should permit a downward departure where the financing, at a higher interest rate, from have known the offense was detected [or loss exceeds the greater of the another bank. On his way to the new about to be detected]; and (C) at the [defendant’s] actual or intended bank to complete the paper work for the earlier of those two occurrences; [personal] gain; and new loan, defendant H is in an (17) Reposition into the background (7) Provide two options regarding automobile accident resulting in damage commentary examples from the current inclusion of interest: (A) to explicitly to the vehicle and injuries to defendant rules on inclusion of consequential exclude interest; and (B) to provide for H. The $500 paid for the inspection damages in offenses involving product the inclusion of only that interest that report is includeable in loss as a direct substitution and government contract is accrued and unpaid that was loss. The increased rental payment for bargained for as part of a lending fraud, consistent with option one regarding a causation standard. temporary housing and the cost transaction involved in the offense; resulting from the higher interest rates (8) Exclude certain costs incurred by Proposed Amendment (Part C) are also included in loss because they the government and victims in Option One (Commission Proposal) follow in the ordinary course and, connection with prosecution and therefore, are foreseeable. However, criminal investigation of the offense; The Commentary to § 2B1.1 captioned although the damage incurred in the (9) Provide for exclusion from loss of ‘‘Application Notes’’, as amended by automobile accident would not have certain economic benefits transferred to Part A of this amendment, is further occurred but for the fraud, it victims, to be measured at the time of amended by inserting after Note 1 the nevertheless did not follow in the detection; following: ordinary course of events and was not (10) Provide an option for certain ‘‘2. For purposes of subsection exceptions to what constitutes foreseeable by a reasonable person in (b)(1).— the defendant’s position. Accordingly, it ‘‘economic benefits’’: (A)(i) benefits of (A) General Rule.—Subject to the is not included in loss.] ‘‘de minimis’’ value; or (ii) benefits that exclusions in subdivision (B), loss is the are substantially different from what the greater of actual loss or intended loss. [Option 2: ‘Actual loss’ means the victim intended to receive; and (B) [Option 1: ‘Actual loss’ means the pecuniary harm that resulted or will services fraudulently rendered by reasonably foreseeable pecuniary harm result from the conduct for which the defendants posing as licensed that resulted or will result from the defendant is accountable under § 1B1.3 professionals and for goods falsely conduct for which the defendant is (Relevant Conduct). ‘Pecuniary harm’ represented as approved by a regulatory accountable under § 1B1.3 (Relevant includes the value of the property taken, agency or for which regulatory approval Conduct). damaged, or destroyed, and the value of was obtained by fraud; ‘Reasonably foreseeable pecuniary money and services unlawfully taken. (11) Provide two options for harm’ means pecuniary harm that the Ordinarily, in a case in which property excluding certain benefits transferred to defendant knew, or under the is taken or destroyed, the loss is the fair victims of investment fraud schemes, circumstances of the particular case, market value of the particular property both of which would resolve a circuit reasonably should have known, likely at issue. If the market value is difficult conflict: (A) Exclude gain to an would result, in the ordinary course of to ascertain or inadequately measures individual investor in the scheme from events, from that conduct. For example, harm to the victim, the court may being used to offset the loss to other in an offense involving unlawfully measure loss in some other way, such as individual investors in the scheme; and accessing, or exceeding authorized reasonable replacement cost to the (B) exclude benefits transferred to access to, a ‘protected computer,’ as victim.] victims designed to lure additional defined in 18 U.S.C. § 1030(e)(2)(A) or ‘Intended loss’ means the pecuniary investments in the scheme from being (B), ‘loss’ is the reasonably foreseeable harm that was intended to result from used to offset the loss; pecuniary harm to the victim, which the conduct for which the defendant is (12) Provide greater clarity regarding typically includes costs such as accountable under § 1B1.3. ‘Intended the flexibility that judges have in conducting a damage assessment and loss’ includes intended harm that would estimating loss; restoring the system and data to their have been impossible or unlikely to (13) Provide four options for the use condition prior to the offense, and any occur (e.g., as in a government sting of gain: (A) Allow the use of gain as one lost revenue due to interruption of operation, or an insurance fraud in of the factors to be used in estimating service. which the claim exceeded the insured loss; (B) allow use of pecuniary gain as For example, defendant H pays value)[so long as the intended loss an alternative measure of loss if the gain defendant D $500 to inspect a home reasonably would have resulted if the VerDate 11 facts were as the defendant believed collateral is its value at the time of revenues generated by similar them to be]. sentencing. operations. [Option 1: [(IV) However, loss shall not be [Option 1:(v) The gain from the (B) Time of measurement.—Loss reduced by the value of: offense.] ordinarily should be measured at the (1) [benefits of de minimis value [Option 2: time of sentencing, except as provided transferred by the defendant to the (E) Pecuniary Gain.—The court shall herein.] victim(s)][economic benefit transferred use the defendant’s pecuniary gain as an [Option 2: to the victim that has little or no value alternative measure of loss if the (B) Time of measurement.—Loss to the victim because it is substantially pecuniary gain is greater than loss ordinarily should be measured at the different from what the victim intended (which may be zero). time the offense was detected. An to receive]; or ‘‘Pecuniary gain’’ has the meaning offense is detected [Option 2A: When (2) services fraudulently rendered to given that term in Application Note 3(h) the offense is discovered by a victim or victims by persons falsely posing as of the Commentary to § 8A1.2 a governmental agency.] [Option 2B: licensed professionals, or goods falsely (Application Instructions— When the defendant knew or reasonably represented as approved by a Organizations) (i.e., the before-tax profit should have known that the offense was governmental regulatory agency, or resulting from the relevant conduct of detected [or about to be detected] by a goods for which regulatory approval by the offense).] victim or a public law enforcement a government agency was obtained by [Option 3: (E) Pecuniary Gain.—The court shall agency.] [Option 2C: The earlier of when fraud.] use the defendant’s pecuniary gain as an an offense is discovered by a victim or [Option 1:(V) In a case involving a alternative measure of loss if (i) loss a governmental agency or the defendant fraudulent investment scheme, such as cannot reasonably be determined; or (ii) knew or reasonably should have known a Ponzi scheme, the loss shall not be that the offense was detected [or about gain is greater than loss. reduced by the value of the economic ‘Pecuniary gain’ has the meaning to be detected] by a victim or a public benefit transferred to any individual law enforcement agency.] given that term in Application Note 3(h) investor in the scheme in excess of that of the Commentary to § 8A1.2 (C) Exclusions from Loss.— investor’s principal investment (i.e., the [Option 1: (i) Interest of any kind, (Application Instructions— gain to an individual investor in the Organizations) (i.e., the before-tax profit finance charges, late fees, penalties, scheme shall not be used to offset the amounts based on an agreed-upon resulting from the relevant conduct of loss to another individual investor in the offense).] return or rate of return, or other the scheme).] opportunity costs.] [Option 4: [Option 2:(V) In a case involving a [Option 2: (i) Interest of any kind, (E) Gain.—The Court shall use the fraudulent investment scheme, such as except if it is bargained for as part of a defendant’s gain if loss cannot a Ponzi scheme, loss shall not be lending transaction that is involved in reasonably be determined. For purposes reduced by the benefit transferred to the offense. In such a case, the court of this application note, ‘‘gain’’ means victims designed to lure additional shall include any such interest that is the proceeds from the illegal activity.] ‘investments’ in the scheme.] accrued and unpaid as of the time the [(F) Special Rules.—The following (D) Estimation of Loss.—In order to defendant knew or should have known special rules shall be used to assist in determine the applicable offense level, that the offense had been detected.] determining loss in the cases indicated: (ii) Costs to the government of, and the court need only make a reasonable (i) Stolen or Counterfeit Credit Cards costs incurred by victims primarily to estimate of the loss. The sentencing and Access Devices; Purloined Numbers aid the government in, the prosecution judge is in a unique position to assess and Codes.—In a case involving any and criminal investigation of an offense, the evidence and estimate the loss based counterfeit access device or even if such costs are reasonably upon that evidence. For this reason, the unauthorized access device, loss foreseeable. court’s loss determination is entitled to includes any unauthorized charges [(iii) The value of the economic appropriate deference. See 18 U.S.C. made with the counterfeit access device benefit the defendant or other persons § 3742(e) and (f). or unauthorized access device. In any acting jointly with the defendant The estimate of the loss shall be based such case, loss shall be not less than transferred to the victim before the on available information, taking into $500 per access device. However, if the offense was detected.] account, as appropriate and practicable unauthorized access device is a means (I) For purposes of this subdivision.— under the circumstances, factors such as of telecommunications access that ‘‘Economic benefit’’ [includes][means] the following: identifies a specific telecommunications money, property, or services performed. (i) The fair market value of the instrument or telecommunications ‘‘Transferred’’ means pledged or property, or other thing of value, taken account (including an electronic serial otherwise provided as collateral, or otherwise unlawfully acquired, number/mobile identification number returned, repaid, or otherwise conveyed. misapplied, misappropriated, or (ESN/MIN) pair), and that means was (II) The value of any ‘‘economic destroyed; or if the fair market value is only possessed, and not used, during benefit’’ transferred to the victim by the impracticable to determine or the commission of the offense, loss shall defendant ordinarily shall be measured inadequately measures the harm, the be not less than $100 per unused means. at the time the offense was detected. cost to the victim of replacing that For purposes of this application note, (III) However, in a case involving property or other thing of value. ‘‘counterfeit access device’’ and collateral pledged by a defendant, the (ii) The cost of repairs to damaged ‘‘unauthorized access device’’ have the ‘‘economic benefit’’ of such collateral to property, not to exceed the replacement meaning given those terms in the victim for purposes of this cost had the property been destroyed. Application Note 15. subdivision is the amount the victim (iii) The approximate number of (ii) Government Benefits.—In a case has recovered at the time of sentencing victims multiplied by the average loss to involving government benefits (e.g., from disposition of the collateral. If the each victim. grants, loans, entitlement program collateral has not been disposed of by (iv) More general factors, such as the payments), loss shall be considered to that time, the ‘economic benefit’ of the scope and duration of the offense and be not less than the value of the benefits VerDate 11 obtained by unintended recipients or court may consider in determining substitution. Similarly, in a defense diverted to unintended uses, as the case whether a downward departure is contract fraud case, loss includes the may be. For example, if the defendant warranted. reasonably foreseeable administrative was the intended recipient of food (I) The primary objective of the cost to the government and other stamps having a value of $100 but offense was a mitigating, non-monetary participants of repeating or correcting fraudulently received food stamps objective, such as to fund medical the procurement action affected, plus having a value of $150, the loss is $50. treatment for a sick parent. However, if, any increased cost to procure the In a case involving a Davis-Bacon Act in addition to that primary objective, a product or service involved that was violation (i.e., a violation of 40 U.S.C. substantial objective of the offense was reasonably foreseeable.]’’. § 276a, criminally prosecuted under 18 to benefit the defendant economically, a U.S.C. § 1001), the value of the benefits downward departure for this reason Option Two (Criminal Law Committee shall be considered to be not less than would not ordinarily be warranted. Proposal) the difference between the legally [(II)The loss significantly exceeds the The Commentary to § 2B1.1 captioned required and actual wages paid. greater of the [defendant’s] actual or ‘‘Application Notes’’, as amended by In the case of a loan (e.g., a student intended [personal] gain, and therefore Part A of this amendment, is further educational loan), the value of the significantly overstates the culpability amended by inserting after Note 1 the benefits shall be considered to be not of the defendant.]’’. following: less than the amount of savings in The Commentary to § 2B1.1 captioned ‘‘2. For purposes of subsection interest over the life of the loan ‘‘Background Commentary’’, as (b)(1)— compared to alternative loan terms for amended by Part A of this proposed (A) General Rule.—Loss is the greater which the applicant would have amendment, is further amended by of the actual loss or the intended loss. qualified.] inserting the following after the second ‘Actual loss’ means the reasonably (G) Departure Considerations.— paragraph: foreseeable pecuniary harm that The Commission has determined that, (i) Upward Departure resulted or will result from the conduct ordinarily, the sentences of defendants Considerations.—There may be cases in for which the defendant is accountable which the offense level determined convicted of federal offenses should reflect the nature and magnitude of the under § 1B1.3 (Relevant Conduct). under this guideline substantially ‘Reasonably foreseeable pecuniary understates the seriousness of the pecuniary harm caused by their crimes. Accordingly, along with other relevant harm’ means pecuniary harm that the offense. In such cases, an upward defendant knew or, under the departure may be warranted. The factors under the guidelines, loss serves as a measure of the seriousness of the circumstances of the particular case, following is a non-exhaustive list of reasonably should have known likely factors that the court may consider in offense and the defendant’s relative culpability and is a principal factor in would result in the ordinary course of determining whether an upward events from the conduct for which the departure is warranted: determining the offense level under this guideline. Because of the structure of defendant is accountable under § 1B1.3 (I) A primary objective of the offense (Relevant Conduct). was an aggravating, non-monetary the Sentencing Table (Chapter 5, Part ‘Intended loss’ means the pecuniary objective. For example, a primary A), subsection (b)(1) results in an harm that was intended to result from objective of the offense was to inflict overlapping range of enhancements the conduct for which the defendant is emotional harm. based on the loss. (II) The offense caused or risked [Except as excluded above, both direct accountable under § 1B1.3, even if that substantial non-monetary harm. For and indirect pecuniary harm that is a harm would have been impossible or example, the offense caused physical reasonably foreseeable result of the unlikely to occur (e.g., as in a harm, psychological harm, or severe offense will be taken into account in government sting operation, or an emotional trauma, or resulted in a determining the loss. Accordingly, in intended insurance fraud in which the substantial invasion of a privacy any particular case, the determination of claim exceeded the insured value), so interest. loss may include consideration of long as the intended loss would (III) The offense involved a substantial factors not specifically set forth in this reasonably have resulted if the facts amount of interest of any kind, finance guideline. For example, in an offense were as the defendant believed them to charges, late fees, penalties, anticipated involving unlawfully accessing, or be. profits, amounts based on an agreed- exceeding authorized access to, a (B) Exclusions from Loss.—Loss does upon return or rate of return, or other protected computer, as defined in 18 not include the following: opportunity costs, not included in the U.S.C. § 1030(e)(2)(A) or (B), loss is the (i) Interest of any kind, finance determination of loss for purposes of reasonably foreseeable pecuniary harm charges, late fees, penalties, anticipated subsection (b)(1). to the victim, which typically includes profits, or amounts based on an agreed- (IV) The offense created a risk of costs such as conducting a damage upon return or rate of return. substantial loss beyond the loss assessment and restoring the system and (ii) Costs to the government of, and determined for purposes of subsection data to their condition prior to the costs incurred by victims primarily to (b)(1). offense [, and any lost revenue due to aid the government in, the prosecution (V) The offense endangered the interruption of service]. Likewise, in a and criminal investigation of an offense, solvency or financial security of one or product substitution case, the loss even if such costs are reasonably more victims. includes the victim’s reasonably foreseeable. (ii) Downward Departure foreseeable costs of making substitute (C) Credits In Determining Loss.— Considerations. There also may be cases transactions and handling or disposing (i) Loss shall be determined by in which the offense level determined of the product delivered, or modifying excluding the value of the economic under this guideline substantially the product so that it can be used for its benefit the defendant or other persons overstates the seriousness of the offense. intended purpose, plus the victim’s acting jointly with the defendant In such cases, a downward departure reasonably foreseeable cost of correcting transferred to the victim before the may be warranted. The following is a the actual or potential disruption to the offense was detected. However, loss non-exhaustive list of factors that the victim’s business caused by the product shall not be reduced by the value of: VerDate 11 (a) benefits of de minimis value or otherwise unlawfully acquired, (a) A primary objective of the offense transferred by the defendant to the misapplied, misappropriated, or was an aggravating, non-monetary victim(s). destroyed; or if the fair market value is objective, such as to inflict emotional (b) services fraudulently rendered to impracticable to determine or harm. victims by persons falsely posing as inadequately measures the harm, the (b) The offense resulted in or risked licensed professionals, or goods falsely cost to the victim of replacing that substantial non-monetary harm. For represented as approved by a property or other thing of value. example, the offense caused physical governmental regulatory agency, or (ii) The cost of repairs to damaged harm, psychological harm, or severe goods for which regulatory approval by property, not to exceed the replacement emotional trauma, or resulted in a a government agency was obtained by cost had the property been destroyed. substantial invasion of a privacy fraud. (iii) The approximate number of interest. (ii) In a case involving a fraudulent victims multiplied by the average loss to (c) The offense created a risk of investment scheme, such as a ‘Ponzi each victim. substantial loss beyond the loss scheme,’ the loss shall not be reduced (iv) More general factors, such as the determined above. by the value of the economic benefit scope and duration of the offense and (d) The offense endangered the transferred to any investor in the revenues generated by similar solvency or financial security of one or scheme in excess of that investor’s operations. more victims. principal investment (i.e., the gain to (F) Gain. The court shall use the (e) The offense involved a substantial one investor in the scheme shall not be defendant’s gain as an alternative risk that a victim would lose a used to offset the loss to another measure of loss when loss cannot significant portion of his or her net investor in the scheme). otherwise reasonably be determined, but worth or suffer other significant (iii) For purposes of this subsection: the defendant’s gain can reasonably be financial hardship. (2) Downward Departure (A) ‘economic benefit’ means money, determined. Considerations. There may be cases in property, or services performed; and (B) (G) Special Rules. The following which the loss substantially overstates ‘transferred’ includes pledged or special rules shall be used to assist in the seriousness of the offense or the otherwise provided as collateral, determining actual loss in the cases culpability of the defendant. In such returned, repaid, or otherwise conveyed. indicated: cases, a downward departure may be (D) Time of measurement: Loss (i) Stolen or Counterfeit Credit Cards warranted. The following is a non- should ordinarily be measured at the and Access Devices; Purloined Numbers exhaustive list of factors that the court time the offense was detected. and Codes. In a case involving stolen or (i) For purposes of this guideline, an may consider in determining whether a counterfeit credit cards (see 15 U.S.C. offense is detected when the defendant downward departure is warranted: 1602(k)), stolen or counterfeit access knew or reasonably should have known (a) The primary objective of the devices (see 18 U.S.C. 1029(e)(1)), or that the offense was detected by a victim offense was a mitigating, non-monetary purloined numbers or codes, the actual or a public law enforcement agency. objective, such as to fund medical (ii) Except as provided in subsection loss includes any unauthorized charges treatment for a sick parent. However, if, (D)(iii), the value of any ‘economic made with the credit cards, access in addition to that primary objective, a benefit’ transferred to the victim by the devices, or numbers or codes. The substantial objective of the offense was defendant for purposes of Subsection actual loss determined for each such to benefit the defendant economically, a (C) shall be measured at the time the credit card, access device, number or downward departure for this reason offense was detected. code shall be not less than $500. would not ordinarily be warranted. (iii) However, in a case involving (ii) Diversion of Government Program (b) The loss significantly exceeds the collateral pledged by a defendant, the Benefits. In a case involving diversion of greater of the defendant’s actual or ‘economic benefit’ of such collateral to government program benefits, actual intended personal gain, and therefore the victim for purposes of Subsection loss is the value of the benefits diverted significantly overstates the culpability (C) is the amount the victim has from intended recipients or uses. For of the defendant.’’. recovered at the time of sentencing from example, if the defendant was the The Commentary to § 2B1.1 captioned disposition of the collateral. If the lawful recipient of food stamps having ‘‘Background’’, as amended by Part A of collateral has not been disposed of by a value of $100 but fraudulently this amendment, is further amended by that time, the ‘economic benefit’ of the received food stamps having a value of inserting after the second paragraph the collateral is its value at the time of $150, the loss is $50. following: sentencing. (iii) Davis-Bacon Act Cases. In a case The Commission has determined that, (E) Estimation of Loss. The court need involving a Davis-Bacon Act violation ordinarily, the sentences of defendants not determine the precise amount of the (i.e., a violation of 40 U.S.C. 276a, convicted of federal offenses should loss. Rather, it need only make a criminally prosecuted under 18 U.S.C. reflect the nature and magnitude of the reasonable estimate of loss. The 1001), the actual loss is the difference pecuniary harm caused by their crimes. sentencing judge is in a unique position between the legally required and actual Accordingly, along with other relevant to assess the evidence and estimate the wages paid. factors under the guidelines, loss serves loss based upon that evidence. For this (H) Departure Considerations. as a measure of the seriousness of the reason, the court’s loss determination is (1) Upward Departure Considerations. offense and the defendant’s relative entitled to appropriate deference. See 18 There may be cases in which the loss culpability and is a principal factor in U.S.C. 3742(e) and (f). substantially understates the determining the offense level under this The estimate of the loss shall be based seriousness of the offense or the guideline. on available information, taking into culpability of the defendant. In such Both direct and indirect pecuniary account and using as appropriate and cases, an upward departure may be harm that is a reasonably foreseeable practicable under the circumstances, warranted. The following is a non- result of the offense will be taken into factors such as the following: exhaustive list of factors that the court account in determining the loss. For (i) The fair market value of the may consider in determining whether example, in an offense involving property, or other thing of value, taken an upward departure is warranted: unlawfully accessing, or exceeding VerDate 11 authorized access to, a ‘‘protected $2,000 but did not exceed $5,000, ‘‘(A) If the value of the gratuity (i) computer,’ as defined in 18 U.S.C. increase by 1 level; or (B) exceeded exceeded $2,000 but did not exceed § 1030(e)(2)(A) or (B), ‘loss’ is the $5,000, increase by the number of levels $5,000, increase by 1 level; or (ii) reasonably foreseeable pecuniary harm from the table in § 2B1.1 (Theft, exceeded $5,000, increase by the to the victim, which typically includes Property Destruction, and Fraud) number of levels from the table in costs such as conducting a damage corresponding to that amount.’’. § 2B1.1 (Theft, Property Destruction, assessment and restoring the system and Section 2B4.1(b) is amended by and Fraud) corresponding to that data to their condition prior to the striking subdivision (1) in its entirety amount.’’. offense. Likewise, in a product and inserting the following: Section 2C1.6(b) is amended by substitution case, the loss includes the ‘‘(1) If the greater of the value of the striking subdivision (1) in its entirety victim’s reasonably foreseeable costs of bribe or the improper benefit to be and inserting the following: making substitute transactions and conferred (A) exceeded $2,000 but did ‘‘(1) If the value of the gratuity (i) handling or disposing of the product not exceed $5,000, increase by 1 level; exceeded $2,000 but did not exceed delivered or modifying the product so or (B) exceeded $5,000, increase by the $5,000, increase by 1 level; or (ii) that it can be used for its intended number of levels from the table in exceeded $5,000, increase by the purpose, plus the victim’s reasonably § 2B1.1 (Theft, Property Destruction, number of levels from the table in foreseeable cost of correcting the actual and Fraud) corresponding to that § 2B1.1 (Theft, Property Destruction, or potential disruption to the victim’s amount.’’. and Fraud) corresponding to that business caused by the product Section 2B5.1(b) is amended by amount.’’. substitution. Similarly, in a defense striking subdivision (1) in its entirety Section 2C1.7(b)(1) is amended by contract fraud case, loss includes the and inserting the following: striking subdivision (A) in its entirety reasonably foreseeable administrative ‘‘(1) If the face value of the counterfeit and inserting the following: cost to the government and other items (A) exceeded $2,000 but did not ‘‘(A) If the loss to the government, or participants of repeating or correcting exceed $5,000, increase by 1 level; or (B) the value of anything obtained or to be the procurement action affected, plus exceeded $5,000, increase by the obtained by a public official or others any increased cost to procure the number of levels from the table in acting with a public official, whichever product or service involved that was § 2B1.1 (Theft, Property Destruction, is greater, (i) exceeded $2,000 but did reasonably foreseeable.’’. and Fraud) corresponding to that not exceed $5,000, increase by 1 level; Part D. Referring Guidelines for Theft amount.’’. or (ii) exceeded $5,000, increase by the and Fraud Section 2B5.3(b) is amended by number of levels from the table in striking subdivision (1) in its entirety § 2B1.1 (Theft, Property Destruction, Synopsis of Proposed Amendment: and inserting the following: and Fraud) corresponding to that The following proposed amendments ‘‘(1) If the infringement amount (A) amount.’’. are intended to be made in conjunction exceeded $2,000 but did not exceed Section 2E5.1(b) is amended by with a change to the loss tables in $5,000, increase by 1 level; or (B) striking subdivision (2) in its entirety § 2B1.1 (Larceny, Embezzlement, and exceeded $5,000, increase by the and inserting the following: Other Forms of Theft) or § 2F1.1 (Fraud number of levels from the table in ‘‘(2) If the value of the prohibited and Deceit). The amendments provide a § 2B1.1 (Theft, Property Destruction, payment or the value of the improper 1-level increase in several guidelines and Fraud) corresponding to that benefit to the payer, whichever is that refer to the loss tables for cases in amount.’’. greater (A) exceeded $2,000 but did not which the loss is more than $2,000 but Section 2B6.1(b) is amended by exceed $5,000, increase by 1 level; or (B) not more than $5,000. This increase striking subdivision (1) in its entirety exceeded $5,000, increase by the would be provided to avoid a 1-level and inserting the following: number of levels from the table in decrease that would otherwise occur for ‘‘(1) If the retail value of the motor § 2B1.1 (Theft, Property Destruction, offenses involving losses of more than vehicles or parts (A) exceeded $2,000 and Fraud) corresponding to that $2,000 but not more than $5,000 but did not exceed $5,000, increase by amount.’’. because the proposed table does not 1 level; or (B) exceeded $5,000, increase Section 2G2.2(b)(2)(A) is amended by provide the first increase for loss by the number of levels from the table striking ‘‘§ 2F1.1 (Fraud and Deceit)’’ amount until loss exceeds $5,000. in § 2B1.1 (Theft, Property Destruction, and inserting ‘‘§ 2B1.1 (Theft, Property Proposed Amendments (Part D) and Fraud) corresponding to that Destruction, and Fraud)’’. Section 2B2.3(b) is amended by amount.’’. Section 2G3.1(b)(1)(A) is amended by striking subdivision (3) in its entirety Section 2C1.1(b)(2) is amended by striking ‘‘§ 2F1.1 (Fraud and Deceit)’’ and inserting the following: striking subdivision (A) in its entirety and inserting ‘‘§ 2B1.1 (Theft, Property ‘‘(3) If (A) the offense involved and inserting the following: Destruction, and Fraud)’’. invasion of a protected computer; and ‘‘(A) If the value of the payment, the Section 2G3.2(b)(2) is amended by (B) the loss resulting from the invasion benefit received or to be received in striking ‘‘at § 2F1.1 (b)(1)’’ and inserting (i) exceeded $2,000 but did not exceed return for the payment, or the loss to the ‘‘in § 2B1.1 (Theft, Property Destruction, $5,000, increase by 1 level; or (ii) government from the offense, whichever and Fraud).’’. exceeded $5,000, increase by the is greatest (i) exceeded $2,000 but did Section 2Q2.1(b)(3) is amended by number of levels from the table in not exceed $5,000, increase by 1 level; striking subdivision (A) in its entirety § 2B1.1 (Theft, Property Destruction, or (ii) exceeded $5,000, increase by the and inserting the following: and Fraud) corresponding to that number of levels from the table in ‘‘(A) If the market value of the fish, amount.’’. § 2B1.1 (Theft, Property Destruction, wildlife, or plants (i) exceeded $2,000 Section 2B3.3(b) is amended by and Fraud) corresponding to that but did not exceed $5,000, increase by striking subdivision (1) in its entirety amount.’’. 1 level; or (ii) exceeded $5,000, increase and inserting the following: Section 2C1.2(b)(2) is amended by by the number of levels from the table ‘‘(1) If the greater of the amount striking subdivision (A) in its entirety in § 2B1.1 (Theft, Property Destruction, obtained or demanded (A) exceeded and inserting the following: and Fraud) corresponding to that VerDate 11 amount, [but in no event more than [18] The Commentary to § 2B5.1 captioned (Property Damage or Destruction)’’ and levels]; or’’. ‘‘Application Notes’’ is amended in inserting ‘‘§ 2B1.1 (Theft, Property Section 2S1.3(a) is amended by Note 3 by striking ‘‘§ 2F1.1 (Fraud and Destruction, and Fraud)’’. striking ‘‘§ 2F1.1 (Fraud and Deceit)’’ Deceit)’’ and inserting ‘‘§ 2B1.1 (Theft, The Commentary to § 2J1.1 captioned and inserting ‘‘§ 2B1.1 (Theft, Property Property Destruction, and Fraud)’’. ‘‘Application Notes’’ is amended in Destruction, and Fraud)’’. The Commentary to § 2B5.3 captioned Note 2 by striking ‘‘§ 2B1.1 (Larceny, ‘‘Background’’ is amended in the second Embezzlement, and Other Forms of Part E. Technical and Conforming sentence of the first paragraph by Theft)’’ and inserting ‘‘§ 2B1.1 (Theft, Amendments striking ‘‘guidelines’’ and inserting Property Destruction, and Fraud)’’. The Commentary to § 1B1.2 captioned ‘‘guideline’’. Section 2K1.4(a) is amended in ‘‘Application Notes’’ is amended in The Commentary to § 2B2.3 captioned subdivision (3) by striking ‘‘§ 2F1.1 Note 1 in the fourth paragraph by ‘‘Application Notes’’ is amended in (Fraud and Deceit) if the offense was striking ‘‘§ 2B1.1 (Larceny, Note 2 by striking ‘‘§ 2B1.1 (Larceny, committed in connection with a scheme Embezzlement, and Other Forms of Embezzlement, and Other Forms of to defraud; or’’ and inserting ‘‘§ 2B1.1 Theft)’’ and inserting ‘‘§ 2F1.1 (Theft, Theft)’’ and inserting ‘‘§ 2B1.1 (Theft, (Theft, Property Destruction, and Property Destruction, and Fraud)’’. Property Destruction, and Fraud)’’. Fraud).’’. The Commentary to § 1B1.3 captioned The Commentary to § 2B3.1 captioned Section 2K1.4(a) is amended by ‘‘Application Notes’’ is amended in ‘‘Application Notes’’ is amended in striking subdivision (4) in its entirety. Note 5 by striking ‘‘§ 2F1.1 (Fraud and Note 3 by striking ‘‘§ 2B1.1 (Larceny, Section 2K1.4(b)(2) is amended in Deceit)’’ and inserting ‘‘§ 2B1.1 (Theft, Embezzlement, and Other Forms of subdivision (2) by striking ‘‘(4)’’ and Property Destruction, and Fraud)’’. Theft)’’ and inserting ‘‘§ 2B1.1 (Theft, inserting ‘‘(3)’’. Chapter Two, Part B, Subpart 1, is Property Destruction, and Fraud)’’. Section 2N2.1(b)(1) is amended by amended by inserting after § 2B1.3 the The Commentary to § 2B6.1 captioned striking ‘‘§ 2F1.1 (Fraud and Deceit)’’ following: ‘‘Application Notes’’ is amended in and inserting ‘‘§ 2B1.1 (Theft, Property Note 1 by striking ‘‘§ 2B1.1 (Larceny, Destruction, and Fraud)’’. ‘‘§ 2B1.4. Insider Trading Embezzlement, and Other Forms of The Commentary to § 2N2.1 captioned (a) Base Offense Level: 8. Theft)’’ and inserting ‘‘§ 2B1.1 (Theft, ‘‘Application Notes’’ is amended in (b) Specific Offense Characteristic. Property Destruction, and Fraud)’’. Note 2 by inserting ‘‘theft, property (1) Increase by the number of levels The Commentary to § 2B6.1 captioned destruction, and’’ after ‘‘involved’’ and from the table in § 2B1.1 (Theft, ‘‘Application Notes’’ is amended by by striking ‘‘(e.g., theft, bribery, Property Destruction, and Fraud) striking Note 2 in its entirety and revealing trade secrets, or destruction of corresponding to the gain resulting from inserting the following: property)’’ and inserting ‘‘(e.g., the offense. ‘‘2. The ‘Increase by the number of bribery).’’. Commentary levels from the table in § 2B1.1 (Theft, The Commentary to § 2N2.1 captioned Property Destruction, and Fraud) ‘‘Application Notes’’ is amended in Statutory Provisions: 15 U.S.C. 78j corresponding to that amount,’ as used Note 4 by striking ‘‘2F1.1 (Fraud and and 17 CFR 240.10b–5. For additional in subsection (b)(1), refers to the number Deceit)’’ and inserting ‘‘§ 2B1.1 (Theft, statutory provision(s), see Appendix A of levels corresponding to the retail Property Destruction, and Fraud)’’. (Statutory Index). value of the motor vehicles or parts Section 2N3.1(b)(1) is amended by Application Note involved.’’. striking ‘‘§ 2F1.1 (Fraud and Deceit)’’ The Commentary to § 2C1.1 captioned and inserting ‘‘§ 2B1.1 (Theft, Property 1. Section 3B1.3 (Abuse of Position of ‘‘Application Notes’’ is amended in Destruction, and Fraud)’’. Trust or Use of Special Skill) should be Note 2 by striking ‘‘§ 2B1.1 (Larceny, The Commentary to § 2N3.1 captioned applied only if the defendant occupied Embezzlement, and Other Forms of ‘‘Background’’ is amended in the first and abused a position of special trust. Theft) and includes both actual and paragraph by striking ‘‘the guideline for Examples might include a corporate intended loss’’ and inserting ‘‘§ 2B1.1 fraud and deception, § 2F1.1,’’ and president or an attorney who misused (Theft, Property Destruction, and inserting ‘‘§ 2B1.1 (Theft, Property information regarding a planned but Fraud)’’. Destruction, and Fraud)’’. unannounced takeover attempt. It The Commentary to § 2C1.7 captioned Section 2Q1.6(a)(2) is amended by typically would not apply to an ‘‘Application Notes’’ is amended in striking ‘‘§ 2B1.3 (Property Damage or ordinary ‘‘tippee.’’ Note 3 by striking ‘‘§ 2B1.1 (Larceny, Destruction)’’ and inserting ‘‘§ 2B1.1 Background: This guideline applies to Embezzlement, and Other Forms of (Theft, Property Destruction, and certain violations of Rule 10b–5 that are Theft) and includes both actual and Fraud)’’. commonly referred to as ‘insider intended los’’ and inserting ‘‘§ 2B1.1 Section 2T1.6(b)(1) is amended by trading.’ Insider trading is treated (Theft, Property Destruction, and striking ‘‘§ 2B1.1 (Larceny, essentially as a sophisticated fraud. Fraud)’’. Embezzlement, and Other Forms of Because the victims and their losses are Section 2H3.3(a) is amended in Theft)’’ and inserting ‘‘§ 2B1.1 (Theft, difficult if not impossible to identify, subdivision (2) by inserting ‘‘or Property Destruction, and Fraud)’’. the gain, i.e., the total increase in value destruction’’ after ‘‘theft’’; and by The Commentary to § 3B1.3 captioned realized through trading in securities by striking ‘‘§ 2B1.1 (Larceny, ‘‘Application Notes’’ is amended by the defendant and persons acting in Embezzlement, and Other Forms of adding at the end the following: concert with him or to whom he Theft)’’ and inserting ‘‘§ 2B1.1 (Theft, ‘‘4. The following additional provided inside information, is Property Destruction, and Fraud)’’. illustrations of an abuse of a position of employed instead of the victims’ losses. Section 2H3.3(a) is amended by trust pertain to theft or embezzlement Certain other offenses, e.g., 7 U.S.C. striking subdivision (3) in its entirety. from employee pension or welfare 13(e), that involve misuse of inside The Commentary to § 2H3.3 captioned benefit plans or labor unions: information for personal gain also may ‘‘Background’’ is amended by striking (A) If the offense involved theft or appropriately be covered by this ‘‘§ 2B1.1 (Larceny, Embezzlement, and embezzlement from an employee guideline.’’. Other Forms of Theft) or § 2B1.3 pension or welfare benefit plan and the VerDate 11 defendant was a fiduciary of the benefit Section 8C2.1(a) is amended by Appendix A (Statutory Index) is plan, an adjustment under this section striking ‘‘2B1.3’’ and inserting ‘‘2B1.4’’ amended in the line referenced to 12 for abuse of a position of trust will and by striking ‘‘§§ 2F1.1; 2F1.2;’’. U.S.C. 631 by striking ‘‘2F1.1’’ and apply. ‘‘Fiduciary of the benefit plan’’ is The Commentary to § 8C2.1 captioned inserting ‘‘2B1.1’’. defined in 29 U.S.C. 1002(21)(A) to ‘‘Application Notes’’ is amended in Appendix A (Statutory Index) is mean a person who exercises any Note 2 by striking wherever it appears amended in the line referenced to 15 discretionary authority or control in ‘‘§ 2F1.1 (Fraud and Deceit)’’ each place U.S.C. 50 by striking ‘‘2F1.1’’ and respect to the management of such plan it appears and inserting ‘‘§ 2B1.1 (Theft, inserting ‘‘2B1.1’’. or exercises authority or control in Property Destruction, and Fraud)’’. Appendix A (Statutory Index) is respect to management or disposition of Appendix A (Statutory Index) is amended in the line referenced to 15 its assets, or who renders investment amended in the line referenced to 7 U.S.C. 77e by striking ‘‘2F1.1’’ and advice for a fee or other direct or U.S.C. 6 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. indirect compensation with respect to inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is any moneys or other property of such Appendix A (Statutory Index) is amended in the line referenced to 15 plan, or has any authority or amended in the line referenced to 7 U.S.C. 77q by striking ‘‘2F1.1’’ and responsibility to do so, or who has any U.S.C. 6b(A) by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. discretionary authority or responsibility inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 15 in the administration of such plan. Appendix A (Statutory Index) is U.S.C. 77x by striking ‘‘2F1.1’’ and (B) If the offense involved theft or amended in the line referenced to 7 U.S.C. 6b(C) by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. embezzlement from a labor union and Appendix A (Statutory Index) is the defendant was a union officer or inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 15 occupied a position of trust in the union U.S.C. 78j by striking ‘‘2F1.1’’ and (as set forth in 29 U.S.C. 501(a)), an amended in the line referenced to 7 U.S.C. 6c by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’; and by striking adjustment under this section for an ‘‘2F1.2’’ and inserting ‘‘2B1.4’’. abuse of a position of trust will apply.’’. inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is Appendix A (Statutory Index) is Section 3D1.2(d) is amended by amended in the line referenced to 7 amended in the line referenced to 15 striking ‘‘2B1.3’’ and inserting ‘‘2B1.4’’; U.S.C. 6h by striking ‘‘2F1.1’’ and U.S.C. 78ff by striking ‘‘2F1.1’’ and and by striking ‘‘§§ 2F1.1, 2F1.2;’’. inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. The Commentary to § 3D1.2 captioned Appendix A (Statutory Index) is Appendix A (Statutory Index) is ‘‘Application Notes’’ is amended in the amended in the line referenced to 7 amended in the line referenced to 15 U.S.C. 80b–6 by striking ‘‘2F1.1’’ and third paragraph of Note 6 by striking ‘‘, U.S.C. 6o by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. and would include, for example, inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is larceny, embezzlement, forgery, and Appendix A (Statutory Index) is amended in the line referenced to 15 fraud’’. amended in the line referenced to 7 U.S.C. 158 by striking ‘‘2F1.1’’ and Section 3D1.3(b) is amended by U.S.C. 13(a)(2) by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. striking ‘‘(e.g., theft and fraud)’’. inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is The Commentary to § 3D1.3 captioned Appendix A (Statutory Index) is amended in the line referenced to 15 ‘‘Application Notes’’ is amended in amended in the line referenced to 7 U.S.C. 645(a) by striking ‘‘2F1.1’’ and Note 3 by striking ‘‘(e.g., theft and U.S.C. 13(a)(3) by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. fraud)’’; and by striking ‘‘In addition, inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is the adjustment for ‘more than minimal Appendix A (Statutory Index) is amended in the line referenced to 15 planning’ frequently will apply to amended in the line referenced to 7 U.S.C. 645(b) by striking ‘‘, 2F1.1’’. multiple count convictions for property U.S.C. 13(a)(4) by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is offenses.’’. inserting ‘‘2B1.1’’. amended in the line referenced to 15 Appendix A (Statutory Index) is The Commentary to § 3D1.5 captioned U.S.C. 645(c) by striking ‘‘, 2F1.1’’. amended in the line referenced to 7 ‘‘Illustrations of the Operation of the Appendix A (Statutory Index) is U.S.C. 13(d) by striking ‘‘2F1.2’’ and Multiple-Count Rules’’ is amended by amended in the line referenced to 15 inserting ‘‘2B1.4’’. striking Illustration 2 in its entirety and U.S.C. 714m(a) by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is by redesignating Illustrations 3 and 4 as inserting ‘‘2B1.1’’. amended in the line referenced to 7 illustrations 2 and 3, respectively. Appendix A (Statutory Index) is U.S.C. 13(f) by striking ‘‘2F1.2’’ and amended in the line referenced to 15 The Commentary to § 3D1.5 captioned inserting ‘‘2B1.4’’. U.S.C. 714m(b) by striking ‘‘, 2F1.1’’. ‘‘Illustrations of the Operation of the Appendix A (Statutory Index) is Appendix A (Statutory Index) is Multiple-Count Rules’’ is amended in amended in the line referenced to 7 amended in the line referenced to 15 Illustration, as redesignated by this U.S.C. 23 by striking ‘‘2F1.1’’ and U.S.C. 1281 by striking ‘‘2B1.3’’ and amendment, 3 by striking ‘‘§ 2F1.1 inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. (Fraud and Deceit)’’ and inserting Appendix A (Statutory Index) is Appendix A (Statutory Index) is ‘‘§ 2B1.1 (Theft, Property Destruction, amended in the line referenced to 7 amended in the line referenced to 15 and Fraud)’’; and in the last sentence by U.S.C. 270 by striking ‘‘2F1.1’’ and U.S.C. 1644 by striking ‘‘2F1.1’’ and striking ‘‘§ 2F1.1’’ after ‘‘or’’ and inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is Appendix A (Statutory Index) is The Commentary to § 8A1.2 captioned amended in the line referenced to 7 amended in the line referenced to 15 ‘‘Application Notes’’ is amended in U.S.C. 2024(b) by striking ‘‘2F1.1’’ and U.S.C. 1681q by striking ‘‘2F1.1’’ and Note 3(i) by striking ‘‘§§ 2B1.1 (Larceny, inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. Embezzlement, and Other Forms of Appendix A (Statutory Index) is Appendix A (Statutory Index) is Theft), 2F1.1 (Fraud and Deceit)’’ and amended in the line referenced to 7 amended in the line referenced to 15 inserting ‘‘§ 2B1.1 (Theft, Property U.S.C. 2024(c) by striking ‘‘2F1.1’’ and U.S.C. 1693n(a) by striking ‘‘2F1.1’’ and Destruction, and Fraud)’’. inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. VerDate 11 Appendix A (Statutory Index) is U.S.C. 287 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is amended in the line referenced to 16 inserting ‘‘2B1.1’’. amended in the line referenced to 18 U.S.C. 114 by striking ‘‘, 2B1.3’’. Appendix A (Statutory Index) is U.S.C. 483 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is amended in the line referenced to 18 inserting ‘‘2B1.1’’. amended in the line referenced to 16 U.S.C. 288 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is U.S.C. 117c by striking ‘‘, 2B1.3’’. inserting ‘‘2B1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 484 by inserting ‘‘2B1.1,’’ before amended in the line referenced to 16 amended in the line referenced to 18 ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. U.S.C. 123 by striking ‘‘2B1.3,’’. U.S.C. 289 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. amended in the line referenced to 18 amended in the line referenced to 16 Appendix A (Statutory Index) is U.S.C. 485 by inserting ‘‘2B1.1,’’ before U.S.C. 146 by striking ‘‘2B1.3,’’. amended in the line referenced to 18 ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. Appendix A (Statutory Index) is U.S.C. 332 by striking ‘‘, 2F1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 16 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 413 by striking ‘‘, 2B1.3’’. amended in the line referenced to 18 U.S.C. 486 by inserting ‘‘2B1.1,’’ before Appendix A (Statutory Index) is U.S.C. 335 by striking ‘‘2F1.1’’ and ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. amended in the line referenced to 16 inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is U.S.C. 433 by striking ‘‘, 2B1.3’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 488 by striking ‘‘2F1.1’’ and amended in the line referenced to 16 U.S.C. 470 by inserting ‘‘2B1.1,’’ before inserting ‘‘2B1.1’’. U.S.C. 831t(b) by striking ‘‘2F1.1’’ and ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 491 by inserting ‘‘2B1.1,’’ before amended in the line referenced to 16 U.S.C. 471 by inserting ‘‘2B1.1,’’ before ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. U.S.C. 831t(c) by striking ‘‘2F1.1’’ and ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 493 by inserting ‘‘2B1.1,’’ before U.S.C. 472 by inserting ‘‘2B1.1,’’ before amended in the line referenced to 18 ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. U.S.C. 32(a), (b) by striking ‘‘2B1.3’’ and ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. Appendix A (Statutory Index) is Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. amended in the line referenced to 18 amended in the line referenced to 18 Appendix A (Statutory Index) is U.S.C. 494 by striking ‘‘2F1.1’’ and U.S.C. 473 by inserting ‘‘2B1.1,’’ before amended in the line referenced to 18 inserting ‘‘2B1.1’’. ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. U.S.C. 33 by striking ‘‘2B1.3’’and Appendix A (Statutory Index) is Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. amended in the line referenced to 18 amended in the line referenced to 18 Appendix A (Statutory Index) is U.S.C. 474 by inserting ‘‘2B1.1,’’ before U.S.C. 495 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. inserting ‘‘2B1.1’’. U.S.C. 37 by striking ‘‘2B1.3’’ and Appendix A (Statutory Index) is Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. amended in the line referenced to 18 amended in the line referenced to 18 Appendix A (Statutory Index) is U.S.C. 474A by inserting ‘‘2B1.1,’’ U.S.C. 496 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 before ‘‘2B5.1’’; and by striking ‘‘, inserting ‘‘2B1.1’’. U.S.C. 43 by striking ‘‘2B1.3’’ and 2F1.1’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 497 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 U.S.C. 476 by inserting ‘‘2B1.1,’’ before inserting ‘‘2B1.1’’. U.S.C. 112(a) by striking ‘‘2B1.3’’ and ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 498 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 U.S.C. 477 by inserting ‘‘2B1.1,’’ before inserting ‘‘2B1.1’’. U.S.C. 152 by striking ‘‘2F1.1’’ and ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 499 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 U.S.C. 478 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. U.S.C. 153 by striking ‘‘, 2F1.1’’. inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is Appendix A (Statutory Index) is Appendix A (Statutory Index) is amended in the line referenced to 18 amended in the line referenced to 18 amended in the line referenced to 18 U.S.C. 500 by striking ‘‘, 2F1.1’’. U.S.C. 155 by striking ‘‘2F1.1’’ and U.S.C. 479 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 501 by inserting ‘‘2B1.1,’’ before amended in the line referenced to 18 amended in the line referenced to 18 ‘‘2B5.1’’; and by striking ‘‘, 2F1.1’’. U.S.C. 225 by striking ‘‘, 2F1.1’’. U.S.C. 480 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. amended in the line referenced to 18 amended in the line referenced to 18 Appendix A (Statutory Index) is U.S.C. 502 by striking ‘‘2F1.1’’ and U.S.C. 285 by striking ‘‘, 2F1.1’’. amended in the line referenced to 18 inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is U.S.C. 481 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is amended in the line referenced to 18 inserting ‘‘2B1.1’’. amended in the line referenced to 18 U.S.C. 286 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is U.S.C. 503 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. amended in the line referenced to 18 inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is U.S.C. 482 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is amended in the line referenced to 18 inserting ‘‘2B1.1’’. amended in the line referenced to 18 VerDate 11 U.S.C. 505 by striking ‘‘2F1.1’’ and U.S.C. 915 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 1018 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 amended in the line referenced to 18 inserting ‘‘2B1.1’’. U.S.C. 506 by striking ‘‘2F1.1’’ and U.S.C. 917 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 1019 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 amended in the line referenced to 18 inserting ‘‘2B1.1’’. U.S.C. 507 by striking ‘‘2F1.1’’ and U.S.C. 970(a) by striking ‘‘2B1.3’’ and Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 1020 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 amended in the line referenced to 18 inserting ‘‘2B1.1’’. U.S.C. 508 by striking ‘‘2F1.1’’ and U.S.C. 1001 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 1021 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 amended in the line referenced to 18 inserting ‘‘2B1.1’’. U.S.C. 509 by striking ‘‘2F1.1’’ and U.S.C. 1002 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 1022 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 amended in the line referenced to 18 inserting ‘‘2B1.1’’. U.S.C. 510 by striking ‘‘2F1.1’’ and U.S.C. 1003 by inserting ‘‘2B1.1,’’ before Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. ‘‘2B5.1’’ and striking ‘‘, 2F1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 1023 by striking ‘‘, 2F1.1’’ . amended in the line referenced to 18 amended in the line referenced to 18 Appendix A (Statutory Index) is U.S.C. 513 by striking ‘‘2F1.1’’ and U.S.C. 1004 by striking ‘‘, 2F1.1’’; and amended in the line referenced to 18 inserting ‘‘2B1.1’’. by inserting ‘‘2B1.1,’’ before ‘‘2B5.1’’. U.S.C. 1025 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. amended in the line referenced to 18 amended in the line referenced to 18 Appendix A (Statutory Index) is U.S.C. 514 by striking ‘‘2F1.1’’ and U.S.C. 1005 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. U.S.C. 1026 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. amended in the line referenced to 18 amended in the line referenced to 18 Appendix A (Statutory Index) is U.S.C. 642 by inserting ‘‘2B1.1,’’ before U.S.C. 1006 by striking ‘‘, 2F1.1’’; and amended in the line referenced to 18 ‘‘2B5.1’’ and striking ‘‘, 2F1.1’’. by inserting ‘‘2B1.1,’’ before ‘‘2B5.1’’. U.S.C. 1028 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. amended in the line referenced to 18 amended in the line referenced to 18 Appendix A (Statutory Index) is U.S.C. 656 by striking ‘‘, 2F1.1’’. U.S.C. 1007 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. U.S.C. 1029 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. U.S.C. 657 by striking ‘‘, 2F1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 1010 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 amended in the line referenced to 18 inserting ‘‘2B1.1’’. U.S.C. 1030(a)(4) by striking ‘‘2F1.1’’ U.S.C. 659 by striking ‘‘, 2F1.1’’. Appendix A (Statutory Index) is and inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 1011 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 U.S.C. 663 by striking ‘‘, 2F1.1’’. inserting ‘‘2B1.1’’. U.S.C. 1030(a)(5) by striking ‘‘2B1.3’’ Appendix A (Statutory Index) is Appendix A (Statutory Index) is and inserting ‘‘2B1.1’’. amended in the line referenced to 18 amended in the line referenced to 18 Appendix A (Statutory Index) is U.S.C. 665(a) by striking ‘‘, 2F1.1’’. U.S.C. 1012 by inserting ‘‘2B1.1,’’ before amended in the line referenced to 18 Appendix A (Statutory Index) is ‘‘2C1.3’’ and striking ‘‘, 2F1.1’’. U.S.C. 1030(a)(6) by striking ‘‘2F1.1’’ amended in the line referenced to 18 Appendix A (Statutory Index) is and inserting ‘‘2B1.1’’. U.S.C. 666(a)(1)(A) by striking ‘‘, 2F1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 1013 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 amended in the line referenced to 18 inserting ‘‘2B1.1’’. U.S.C. 1031 by striking ‘‘2F1.1’’ and U.S.C. 709 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 1014 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 amended in the line referenced to 18 inserting ‘‘2B1.1’’. U.S.C. 1032 by inserting ‘‘2B1.1,’’ before U.S.C. 712 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is ‘‘2B4.1’’; and by striking ‘‘, 2F1.1’’. inserting ‘‘2B1.1’’. amended in the line referenced to 18 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 1015 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 amended in the line referenced to 18 inserting ‘‘2B1.1’’. U.S.C. 1033 by striking ‘‘2F1.1,’’. U.S.C. 911 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. amended in the line referenced to 18 amended in the line referenced to 18 Appendix A (Statutory Index) is U.S.C. 1016 by striking ‘‘2F1.1’’ and U.S.C. 1035 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. U.S.C. 914 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. amended in the line referenced to 18 amended in the line referenced to 18 Appendix A (Statutory Index) is U.S.C. 1017 by striking ‘‘2F1.1’’ and U.S.C. 1341 by inserting ‘‘2B1.1,’’ before amended in the line referenced to 18 inserting ‘‘2B1.1’’. ‘‘2C1.7’’; and by striking ‘‘, 2F1.1’’. VerDate 11 Appendix A (Statutory Index) is U.S.C. 1728 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is amended in the line referenced to 18 inserting ‘‘2B1.1’’. amended in the line referenced to 18 U.S.C. 1342 by inserting ‘‘2B1.1,’’ before Appendix A (Statutory Index) is U.S.C. 2281 by striking ‘‘2B1.3’’ and ‘‘2C1.7’’; and by striking ‘‘, 2F1.1’’. amended in the line referenced to 18 inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is U.S.C. 1852 by striking ‘‘, 2B1.3’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 1343 by inserting ‘‘2B1.1,’’ before amended in the line referenced to 18 U.S.C. 2314 by striking ‘‘, 2F1.1’’ . ‘‘2C1.7’’; and by striking ‘‘, 2F1.1’’. U.S.C. 1853 by striking ‘‘, 2B1.3’’. Appendix A (Statutory Index) is Appendix A (Statutory Index) is Appendix A (Statutory Index) is amended in the line referenced to 18 amended in the line referenced to 18 amended in the line referenced to 18 U.S.C. 2315 by striking ‘‘, 2F1.1’’ . U.S.C. 1344 by striking ‘‘2F1.1’’ and U.S.C. 1854 by striking ‘‘, 2B1.3’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 2332a by striking ‘‘2B1.3’’ and amended in the line referenced to 18 U.S.C. 1857 by striking ‘‘ 2B1.3,’’ and inserting ‘‘2B1.1’’. U.S.C. 1347 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1,’’ Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 19 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 1434 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 U.S.C. 1861 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. U.S.C. 1361 by striking ‘‘2B1.3’’ and inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 19 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 1435 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 U.S.C. 1902 by striking ‘‘2F1.2’’ and inserting ‘‘2B1.1’’. U.S.C. 1362 by striking ‘‘2B1.3’’ and inserting ‘‘2B1.4’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 19 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 1436 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 U.S.C. 1919 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. U.S.C. 1363 by striking ‘‘2B1.3’’ and inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1. Appendix A (Statutory Index) is amended in the line referenced to 19 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 1919 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 U.S.C. 1920 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. U.S.C. 1366 by striking ‘‘2B1.3’’ and inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 19 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 2316 by striking ‘‘2F1.1’’ and amended in the line referenced to 18 U.S.C. 1923 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. U.S.C. 1422 by inserting ‘‘2B1.1,’’ before inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is ‘‘2C1.2’’; and by striking ‘‘, 2F1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 20 Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 1097(a) by striking ‘‘, 2F1.1’’. amended in the line referenced to 18 U.S.C. 1992 by striking ‘‘2B1.3’’ and Appendix A (Statutory Index) is U.S.C. 1702 by striking ‘‘2B1.3,’’. inserting ‘‘2B1.1’’. amended in the line referenced to 20 Appendix A (Statutory Index) is Appendix A (Statutory Index) is U.S.C. 1097(b) by striking ‘‘2F1.1’’ and amended in the line referenced to 18 amended in the line referenced to 18 inserting ‘‘2B1.1’’. U.S.C. 1703 by striking ‘‘2B1.3,’’. U.S.C. 2071 by striking ‘‘, 2B1.3’’. Appendix A (Statutory Index) is Appendix A (Statutory Index) is Appendix A (Statutory Index) is amended in the line referenced to 20 amended in the line referenced to 18 amended in the line referenced to 18 U.S.C. 1097(d) by striking ‘‘2F1.1’’ and U.S.C. 1704 by striking ‘‘, 2F1.1’’. U.S.C. 2072 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 21 U.S.C. 1705 by striking ‘‘2B1.3’’ and amended in the line referenced to 18 U.S.C. 333(a)(2) by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. U.S.C. 2073 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 22 U.S.C. 1706 by striking ‘‘2B1.3’’ and amended in the line referenced to 18 U.S.C. 1980(g) by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. U.S.C. 2197 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is amended in the line referenced to 18 Appendix A (Statutory Index) is amended in the line referenced to 22 U.S.C. 1708 by striking ‘‘, 2F1.1’’. amended in the line referenced to 18 U.S.C. 2197(n) by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is U.S.C. 2272 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. amended in the line referenced to 18 inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is U.S.C. 1712 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is amended in the line referenced to 22 inserting ‘‘2B1.1’’. amended in the line referenced to 18 U.S.C. 4221 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is U.S.C. 2275 by striking ‘‘2B1.3’’ and inserting ‘‘2B1.1’’. amended in the line referenced to 18 inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is U.S.C. 1716C by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is amended in the line referenced to 25 inserting ‘‘2B1.1’’. amended in the line referenced to 18 U.S.C. 450d by striking ‘‘, 2F1.1’’. Appendix A (Statutory Index) is U.S.C. 2276 by striking ‘‘2B1.3’’ and Appendix A (Statutory Index) is amended in the line referenced to 18 inserting ‘‘2B1.1’’. amended in the line referenced to 26 U.S.C. 1720 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is U.S.C. 7208 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. amended in the line referenced to 18 inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is U.S.C. 2280 by striking ‘‘2B1.3’’ and Appendix A (Statutory Index) is amended in the line referenced to 18 inserting ‘‘2B1.1’’. amended in the line referenced to 26 VerDate 11 U.S.C. 7214 by inserting ‘‘2B1.1,’’ before Appendix A (Statutory Index) is U.S.C. 80501 by striking ‘‘2B1.3’’ and ‘‘2C1.2’’ and striking ‘‘, 2F1.1’’. amended in the line referenced to 42 inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is U.S.C. 1761(o)(1) by striking ‘‘2F1.1’’ Appendix A (Statutory Index) is amended in the line referenced to 26 and inserting ‘‘2B1.1’’. amended in the line referenced to 49 U.S.C. 7232 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is U.S.C. App. § 1687(g) by striking inserting ‘‘2B1.1’’. amended in the line referenced to 42 ‘‘2B1.3’’ and inserting ‘‘2B1.1’’. Appendix A (Statutory Index) is U.S.C. 1761(o)(2) by striking ‘‘, 2F1.1’’. amended in the line referenced to 29 Appendix A (Statutory Index) is Part F: Computing Tax Loss Under U.S.C. 1141 by inserting ‘‘2B1.1,’’ before amended in the line referenced to 42 § 2T1.1 ‘‘2B3.2’’ and striking ‘‘, 2F1.1’’. U.S.C. 3220(a) by striking ‘‘2F1.1’’ and Synopsis of Proposed Amendment: Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. This proposed amendment addresses a amended in the line referenced to 38 Appendix A (Statutory Index) is circuit conflict regarding how tax loss U.S.C. 787 by striking ‘‘2F1.1’’ and amended in the line referenced to 42 under § 2T1.1 (Tax Evasion) is inserting ‘‘2B1.1’’. U.S.C. 3220(b) by striking ‘‘, 2F1.1’’. computed for cases that involve a Appendix A (Statutory Index) is Appendix A (Statutory Index) is defendant’s under-reporting of income amended in the line referenced to 38 amended in the line referenced to 42 on both individual and corporate tax U.S.C. 3426 by striking ‘‘2F1.1’’ and U.S.C. 3502 by striking ‘‘2F1.1’’ and returns. Such a case often arises when inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. (1) the defendant fails to report, and pay Appendix A (Statutory Index) is Appendix A (Statutory Index) is corporate income taxes on, income amended in the line referenced to 41 amended in the line referenced to 42 U.S.C. 3791 by striking ‘‘, 2F1.1’’. earned by the corporation, (2) diverts U.S.C. 423(e) by inserting ‘‘2B1.1,’’ that unreported corporate income for before ‘‘2C1.1’’; and by striking ‘‘, Appendix A (Statutory Index) is amended in the line referenced to 42 the defendant’s personal use, and (3) 2F1.1’’. fails to report, and to pay personal Appendix A (Statutory Index) is U.S.C. 3792 by striking ‘‘2F1.1’’ and inserting ‘‘2B1.1’’. income taxes on, that income. The amended in the line referenced to 42 proposed amendment clarifies that the U.S.C. 408 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is amended in the line referenced to 42 amount of the tax loss is the aggregate inserting ‘‘2B1.1’’. amount of federal income tax that Appendix A (Statutory Index) is U.S.C. 3795 by striking ‘‘, 2F1.1’’. Appendix A (Statutory Index) is would have due by both the corporation amended in the line referenced to 42 amended in the line referenced to 42 and the individual defendant. U.S.C. 1307(a) by striking ‘‘2F1.1’’ and U.S.C. 5157(a) by striking ‘‘2F1.1’’ and More specifically, the circuits are split inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. on which methodology should be used Appendix A (Statutory Index) is Appendix A (Statutory Index) is to calculate tax loss in these cases. Two amended in the line referenced to 42 amended in the line referenced to 45 circuits use a sequential calculation U.S.C. 1307(b) by striking ‘‘2F1.1’’ and U.S.C. 359(a) by striking ‘‘2F1.1’’ and method the aggregate tax loss. Under inserting ‘‘2B1.1’’. inserting ‘‘2B1.1’’. this method, the court determines the Appendix A (Statutory Index) is Appendix A (Statutory Index) is corporate federal income tax that would amended in the line referenced to 42 amended in the line referenced to 46 have been due, subtracts that amount U.S.C. 1307a–7b by striking ‘‘, 2F1.1’’. U.S.C. 1276 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is from the amount diverted to the inserting ‘‘2B1.1’’. defendant personally, then determines amended in the line referenced to 42 Appendix A (Statutory Index) is U.S.C. 1383(d)(2) by striking ‘‘2F1.1’’ the personal federal income tax that amended in the line referenced to 49 would have been due on the reduced and inserting ‘‘2B1.1’’. U.S.C. 121 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is diverted amount. See United States v. inserting ‘‘2B1.1’’. Harvey, 996 F.2d 919 (7th Cir. 1993); amended in the line referenced to 42 Appendix A (Statutory Index) is U.S.C. 1383a(a) by striking ‘‘2F1.1’’ and United States v. Martinez-Rios, 143 F.3d amended in the line referenced to 49 662 (2d Cir. 1998). In contrast, one inserting ‘‘2B1.1’’. U.S.C. 11903 by striking ‘‘2F1.1’’ and Appendix A (Statutory Index) is circuit holds that the court should inserting ‘‘2B1.1’’. determine the aggregate tax loss by amended in the line referenced to 42 Appendix A (Statutory Index) is adding the corporate federal income tax U.S.C. 1383a(b) by striking ‘‘2F1.1’’ and amended in the line referenced to 49 that would have been due on the total inserting ‘‘2B1.1’’. U.S.C. 11904 by striking ‘‘2F1.1’’ and amount of unreported income and the Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. amended in the line referenced to 42 Appendix A (Statutory Index) is personal federal income tax that would U.S.C. 1395nn(a) by striking ‘‘2F1.1’’ amended in the line referenced to 49 have been due on that total amount. See and inserting ‘‘2B1.1’’. U.S.C. 14912 by striking ‘‘2F1.1’’ and United States v. Cseplo, 42 F.3d 36 (6th Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. Cir. 1994). amended in the line referenced to 42 Appendix A (Statutory Index) is The amendment adopts the Harvey U.S.C. 1395nn(c) by striking ‘‘2F1.1’’ amended in the line referenced to 49 approach, clarifying the existing rule in and inserting ‘‘2B1.1’’. U.S.C. 16102 by striking ‘‘2F1.1’’ and Application Note 7 of § 2T1.1 that ‘‘if Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. the offense involves both individual and amended in the line referenced to 42 Appendix A (Statutory Index) is corporate tax returns, the tax loss is the U.S.C. 1396h(a) by striking ‘‘2F1.1’’ and amended in the line referenced to 49 aggregate tax loss from the offenses inserting ‘‘2B1.1’’. U.S.C. 60123(d) by striking ‘‘2B1.3’’ and taken together’’. Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. The amendment also clarifies that the amended in the line referenced to 42 Appendix A (Statutory Index) is loss in § 2T1.1 refers to federal, and not U.S.C. 1713 by striking ‘‘2F1.1’’ and amended in the line referenced to 49 state and local, tax loss. The alternative inserting ‘‘2B1.1’’. U.S.C. 80116 by striking ‘‘2F1.1’’and interpretation of this provision would Appendix A (Statutory Index) is inserting ‘‘2B1.1’’. greatly complicate the guideline because amended in the line referenced to 42 Appendix A (Statutory Index) is of the multitude of state and local tax U.S.C. 1760(g) by striking ‘‘, 2F1.1’’. amended in the line referenced to 49 rates and provisions. VerDate 11 The amendment also adds an ($66,000 multiplied by 28%). mitigating factors for the court to application note to § 2T1.1 clarifying Consequently, the aggregate tax loss for consider in determining whether, on that a tax evasion count and a count the offenses, taken together, is $52,480 balance and after weighing the presence charging the offense that provided the ($34,000 plus $18,480).’’. and intensity of the factors, the offense income on which tax was evaded are The Commentary to § 2T1.1 captioned involves significantly aggravating, grouped together under § 3D1.2(c). This ‘‘Application Notes’’ is amended by aggravating, mitigating, or significantly application note is consistent with the adding at the end the following: mitigating factors. In contrast, Option longstanding view of the staff as to how ‘‘8. If the defendant is sentenced for Two provides for a two-level increase if such counts should be treated for a count charging an offense from which the offense involved certain aggravating grouping purposes. the defendant derived income and a factor(s) and no mitigating factors or if count charging a tax offense involving Proposed Amendment (Part F) the aggravating factor(s) present in the that criminally derived income, the case outweigh all mitigating factors Section § 2T1.1(c)(1) is amended in by counts are to be grouped together as present in the case, and a two-level adding at the end the following: closely related counts under subsection decrease if the offense involved certain ‘‘(D) If the offense involved (i) (c) of § 3D1.2 (Groups of Closely Related mitigating factors and no aggravating conduct described in paragraphs (A), Counts). Such counts are to be grouped factors or if the mitigating factor(s) (B), or (C); and (ii) both individual and together whether or not the amount of present in the case outweigh all corporate tax returns, the tax loss is the criminally derived income is sufficient aggravating factors present in the case. aggregate tax loss from the offenses to warrant the enhancement under Option Two provides an exhaustive list taken together.’’. subsection (b)(1).’’. of aggravating and mitigating factors Section 2T1.1(c)(2) is amended by Issues for Comment that may trigger application of the inserting ‘‘(A)’’ before ‘‘If’’; and by enhancement. adding at the end the following: (1) The proposed amendment uses a An issue for comment follows ‘‘(B) If the offense involved (i) sequential method to determine tax loss regarding whether any of the factors in conduct described in paragraph (A), in cases in which the defendant is both the existing specific offense and; (ii) both individual and corporate the individual and the corporate tax characteristics in the fraud (§ 2F1.1), tax returns, the tax loss is the aggregate payer. Commission invites comment on theft (§ 2B1.1), and property destruction tax loss from the offenses taken whether § 2T1.1 instead should be (§ 2B1.3) guidelines should be together.’’. amended to provide that, in such cases, incorporated into the aggravating and The Commentary to § 2T1.1 captioned the aggregate tax loss is the sum of (A) mitigating factors found in either of ‘‘Application Notes’’ is amended in the total amount of unreported income Option One or Two and, accordingly, Note 1 by adding at the end the multiplied by the corporate tax rate; and eliminated as a specific offense following paragraph: (B) the total amount of unreported characteristic within the guideline. ‘‘Tax loss’’ means federal tax loss; it income multiplied by the individual tax does not include state or local tax loss.’’. rate. Proposed Amendment The Commentary to § 2T1.1 is (2) The Commission also invites Option 1 amended in Note 7 by adding at the end comment on whether the definition of the following: ‘‘tax loss’’ should include interest and Section 2B1.1, as amended by ‘‘Accordingly, in a case in which a penalties in evasion-of-payment tax Amendment 12, is further amended by defendant fails to report income derived cases. Such cases are distinguishable redesignating subsections (b)(8) through from a corporation on either the from evasion-of-assessment tax cases. (b)(14) as subsections (b)(9) through defendant’s individual tax return or the (3) The Commission also invites (b)(15), respectively; and by inserting corporate tax return, the tax loss is the comment on whether the ‘‘sophisticated after subsection (b)(7) the following: aggregate amount due to the treasury concealment’’ enhancement in ‘‘(8) If the offense involved— from the offenses taken together. For §§ 2T1.1(b)(2) and 2T1.4(b)(2) should be (A) Aggravating circumstances, example, the defendant, the sole owner revised to conform to the ‘‘sophisticated increase by 2 levels; of a corporation, fraudulently means’’ enhancement in [(B) Significantly aggravating understates the corporation’s income in § 2F1.1(b)(6)(C), including imposition of circumstances, increase by 4 levels;] the amount of $100,000 on the a minimum of offense level of level 12. (C) Mitigating circumstances, decrease corporation’s tax return, diverts the by 2 levels; funds to his own use, and does not Proposed Amendment: Aggravating and [(D) Significantly mitigating report these funds on the defendant’s Mitigating Factors in Fraud and Theft circumstances, decrease by 4 levels.] individual tax return. For purposes of Cases [In cases falling between (A) and (B), this example, assume that the applicable 13. Synopsis of Proposed increase by 3 levels; in cases falling tax rate is 34% and the applicable Amendment: This amendment proposes between (C) and (D), decrease by 3 individual tax rate is 28%. The tax loss two options to provide for the levels.]’’. attributable to the defendant’s corporate consideration of a number of The Commentary to § 2B1.1 captioned tax returns is $34,000 ($100,000 aggravating and mitigating factors that ‘‘Application Notes’’, as amended by multiplied by 34%). The tax loss may be present in theft and fraud cases. Amendment 12, is further amended by attributable to the defendant’s Option One provides for a four-level adding at the end the following: individual tax return is based on the increase if the offense involved ‘‘17. (A) Whether an offense involved unreported $100,000 in income less the significantly aggravating factors, a two- aggravating circumstances or $34,000 in corporate tax on these same level increase if the offense involved significantly aggravating circumstances funds. This avoids double counting aggravating factors, a two-level decrease is based on consideration of the because the $34,000 in corporate tax if the offense involved mitigating presence and intensity of aggravating reduces the defendant’s effective factors, and a four-level decrease if the factors, such as the following: income from $100,000 to $66,000. The offense involved significantly mitigating (i) The offense caused or risked tax loss attributable to the defendant’s factors. Option One provides a non- reasonably foreseeable, substantial non- individual tax return is $18,480 exhaustive list of aggravating and monetary harm; VerDate 11 (ii) False statements were made for and clearly articulate the factors and victims to suffer insolvency or the purpose of facilitating some other weight given those factors, that the court substantial financial hardship]; and crime; is relying on to determine whether the subsection (b)(7) does not apply; (iii) The offense caused reasonably offense involved aggravating (C) The offense caused reasonably foreseeable, physical or psychological circumstances, [significantly aggravating foreseeable, substantial non-monetary harm or emotional trauma; circumstances,] mitigating harm (e.g., physical or psychological (iv) The offense endangered national circumstances [or significantly harm or emotional trauma); security or military readiness; mitigating circumstances]. Such a (D) The defendant’s conduct was (v) The offense caused a loss of determination should be based on the unusually heinous, cruel, brutal or confidence in an important institution; presence and intensity, rather than on a degrading to a victim; (vi) The offense involved the knowing simple counting, of the factors listed (E) The offense was committed for the endangerment of the solvency of one or above. purpose of facilitating another crime; more victims; (E) Consistent with the overall (F) The offense endangered public (vii) The offense involved more than structure of the guidelines, the health or safety, national security, or [10][25] victims; government bears the burden of military readiness; (viii) The offense involved the persuasion in establishing the factors (G) The offense (i) substantially destruction or damage to irreplaceable associated with aggravating disrupted an important government items of cultural, historical or circumstances, while the defendant function; or (ii) caused a loss of archeological significance; bears the burden of persuasion in confidence in an important institution [(ix) The loss amount determined establishing the factors associated with and the enhancement in subsection above was at or near the highest amount mitigating circumstances. (b)(7)(A) does not apply; or possible for the range of loss that (F) Application of this section does (H) The offense involved destruction corresponds to the applicable offense not preclude consideration of any of or substantial damage to unique level determined by the loss table]. these factors, for the purposes of an property of environmental, cultural, (B) Whether an offense contains upward or downward departure, even historical, or archeological significance. mitigating circumstances or though the reason for the departure has ‘Qualifying mitigating factor’ means any significantly mitigating circumstances is been taken into consideration in of the following: based on consideration of the presence determining the guideline range, if the (A) Prior to detection of the offense, and intensity of mitigating factors such court determines that the factor is the defendant remedied, or made every as the following: present to an unusual or extraordinary reasonable effort to remedy, the harm (i) The defendant, prior to detection of degree.’’. the offense, made significant efforts to resulting from the offense; limit the pecuniary harm caused by the Option 2 (B) The defendant’s attempted offense (i) did not involve a government ‘sting’ crime; Section 2B1.1, as amended by operation; (ii) was highly improbable of (ii) [The defendant’s attempted Amendment 12, is further amended by success; and (iii) did not result in actual offense was impossible or extremely redesignating subsections (b)(8) through loss; unrealistic;] (b)(14) as subsections (b)(9) through (C) The defendant neither intended to (iii) The defendant’s actual or (b)(15), respectively; and by inserting profit, nor actually profited, from the intended gain was substantially less after subsection (b)(7) the following: offense, and the offense was not than the loss determined above; ‘‘(8) If the offense— (iv) The offense was not committed (A) Involved (i) at least one qualifying committed for the purpose of inflicting for commercial advantage or financial aggravating factor and no qualifying non-monetary harm; or gain; mitigating factors; or (ii) one or more (D) The defendant committed the (v) The offense was committed qualifying aggravating factors the offense in order to avoid a perceived because of extreme financial hardship seriousness of which outweigh the greater harm, other than the avoidance [caused by extraordinary unforseen mitigating effect of all qualifying or mitigation of personal financial circumstances not caused by the mitigating factors present in the offense, hardship, (e.g., the defendant committed defendant and beyond the defendant’s increase by 2 levels; or the offense in order to fund medical control] [caused by excessive costs for (B) Involved (i) at least one qualifying treatment for a gravely ill family the life sustaining needs of the mitigating factor and no qualifying member). defendant or his immediate family]; aggravating factors; or (ii) one or more Subsection (b)(8) applies in cases in (vi) The offense involved minimal or qualifying mitigating factors the which qualifying aggravating factors or no planning; mitigating effect of which outweigh the qualifying mitigating factors are present [(vii) The loss amount determined seriousness of all qualifying aggravating to such a degree that an increase or a above was at or near the lowest amount factors present in the offense, decrease decrease in the sentence, respectively, is possible for the range of loss that by 2 levels.’’. appropriate. An increase or a decrease corresponds to the applicable offense The Commentary to § 2B1.1 captioned in the sentence pursuant to subsection level determined by the loss table]. ‘‘Application Notes’’, as amended by (b)(8) shall not apply in a case in which (C) In a case involving both Amendment 12, is further amended by both qualifying aggravating factors and aggravating and mitigating factors, the adding at the end the following: qualifying mitigating factors are present, court will determine, after consideration ‘‘17. For purposes of subsection (b)(8): but the seriousness of the qualifying of all of the factors, whether the case ‘Qualifying aggravating factor’ means aggravating factors is equal to the involves, on balance, aggravating[, any of the following: mitigating effect of the qualifying significantly aggravating,] or mitigating[, (A) the offense involved [a large mitigating factors. or significantly mitigating] number of] [more than 10] victims, and Application of subsection (b)(8) does circumstances. subsection (b)(3) is not applicable; not preclude consideration of any of the (D) When applying this section, the (B) The offense [involved the knowing factors listed in such subsection for court must make specific findings endangerment of the solvency of one or purposes of an upward or downward regarding the offense characteristics, more victims] [caused one or more departure if the court determines that VerDate 11 the factor is present to an unusual or Category I (so that Zone B contains (2)(A) notifies the government and the extraordinary degree.’’. offense levels 9, 10, 11, and 12 in court that the defendant agrees to make Issue for Comment: The Commission Criminal History Category I); by full restitution as determined by the invites comment whether any of the increasing Zone B by two levels in court, (B) fully cooperates with the factors in the existing specific offense Criminal History Category II (so that government and the court in characteristics in the fraud (§ 2F1.1), Zone B contains offense levels 6, 7, 8, determining the amount of such theft (§ 2B1.1), and property destruction 9, 10, and 11 in Criminal History restitution; and (C) makes partial (§ 2B1.3) guidelines should be Category II); by increasing Zone C by restitution to the extent able to do so. incorporated into the aggravating and two levels in Criminal History Category Commentary mitigating factors found in either of I (so that Zone C contains offense levels Option One or Two and, accordingly, 13, 14, 15, and 16 in Criminal History Application Notes: eliminated as a separate specific offense Category I); and by increasing Zone C by 1. For the purposes of this guideline— characteristic within the guideline. two levels in Criminal History Category ‘Dangerous weapon’ and ‘firearm,’ as II (so that Zone C contains offense levels used in subdivision (2), ‘bodily injury,’ Proposed Amendment: Sentencing 12, 13, 14, and 15 in Criminal History ‘offense,’ and ‘serious bodily injury,’ are Table Amendment and Alternative to Category II). defined in the Commentary to § 1B1.1 Sentencing Table Amendment (Application Instructions). 14. Synopsis of Proposed Option 2 (Alternative to Sentencing ‘Full restitution’ means the amount of Amendment: In August 2000, the Table Amendment) restitution required by law under 18 Commission indicated that one of its Chapter Five, Part A, is amended by U.S.C. 3663. policy priorities would be to begin a adding at the end the following: ‘No criminal history points,’ means review of the guidelines relating to ‘‘§ 5A1.2. Adjustment for Certain Less the defendant has zero criminal history Criminal History. See 65 FR 50034, Serious Economic Crimes points as determined under § 4A1.1 50035 (Aug. 16, 2000). As part of that If each of subsections (a) through (f) (Criminal History Category). long range review and as part of a applies, decrease the offense level by 2 ‘Substantive offense’ has the meaning review of the Economic Crime Package levels— given that term in § 2X1.1, Application set forth in Amendment #12, the (a) The defendant’s Chapter Two Note 3. 2. If the Chapter Two offense Commission is publishing part I of this offense level is determined solely by guideline for a count is not listed in amendment (i.e., the proposed applying one or more of the following subsection (a) above, but the applicable Sentencing Table amendment) as one offense guidelines in Chapter Two: guideline results in the determination of item that may facilitate public (1) §§ 2B1.1, 2B1.3, 2B2.1, 2F1.1, the Chapter Two offense level solely by discussion and inform Commission 2N2.1, 2N1.3, 2S1.1, 2S1.2, 2S1.3, use of one or more listed guidelines, the consideration about related issues. The 2T1.1, 2T1.4, 2T1.6, 2T1.7, 2T1.8, defendant qualifies for a reduction Sentencing Table amendment proposes 2T2.1, 2T2.2, 2T3.1; (2) § 2X1.1 (if the Chapter Two offense under this guideline. For example, to change the Sentencing Table in level for the substantive offense or where the conduct set forth in a count Chapter Five by expanding each of offenses is determined solely from a of conviction ordinarily referenced to Zones B and C by two levels in Criminal guideline in subsection (a)(1)); § 2E5.3 (an offense guideline not listed History Categories I and II. (3) § 2X2.1, § 2X3.1, § 2X4.1 (if the in subsection (a)) establishes § 2F1.1 The second part of this amendment, Chapter Two offense level for the (Fraud and Deceit) as the applicable intended as an alternative to the underlying offense is determined solely offense guideline (an offense guideline Sentencing Table amendment, proposes from a guideline in subsection (a)(1)); listed in subsection (a)), this guideline a new guideline, which would be added (4) § 2X5.1 (if the Chapter Two offense would apply because the actual offense at the end of Chapter Three or in level is determined solely from a level is determined under § 2F1.1 Chapter Five immediately following the guideline in subsection (a)(1) (Fraud and Deceit).’’. Sentencing Table. It provides a two- determined to be sufficiently level reduction in offense level for analogous). Proposed Amendment: Firearms Table certain less serious economic offenses, (b) The defendant has no criminal 15. Synopsis of Proposed in furtherance of the statutory command history points; Amendment: This proposed amendment in 28 U.S.C. 994(j). The eligibility (c) The defendant did not use presents two options for implementing criteria generally parallel those violence or a threat of violence or the recommendation of the Bureau of determined by Congress under 18 U.S.C. possess or use a firearm or other Alcohol, Tobacco and Firearms (ATF) to 3553(f) to gain relief from applicable dangerous weapon; increase the penalties in § 2K2.1 controlled substance mandatory (d) The offense did not involve bodily (Unlawful Receipt, Possession or minimums. Certain additional injury or a conscious or reckless risk of Transportation of Firearms or requirements are added in order to more serious bodily injury; Ammunition) for offenses involving fully define the categories of first (e) The defendant did not receive an more than 100 firearms. offenders who have not been convicted increase in offense level under any of Option 1 amends the firearms table in of a ‘‘crime of violence or an otherwise the following guideline sections: § 2K2.1 to provide an additional one- serious offense.’’ Importantly, eligibility (1) § 2B1.1(b)(4)(B)—(b)(7); level increase for offenses that involve for the reduction also hinges on making, (2) § 2F1.1(b)(4)—(b)(8); 100–199 firearms, and an additional or committing to make, full restitution. (3) § 2S1.1(b)(1); (4) § 2S1.2(b)(1)(A); two-level increase for offenses that Proposed Amendment (5) § 2S1.3(b)(1); involve more than 200 firearms. The (6) § 2T1.1(b)(1) or (b)(2); ATF reports that these increases are Option 1 (Sentencing Table needed to provide adequate and Amendment) (7) § 2T1.4(b)(1) or (b)(2); (8) Chapter Three, Parts A, B, or C; proportionate punishment in cases that The Sentencing Table in Chapter Five, (9) § 4B1.3; and involve large numbers of firearms. Part A, is amended by increasing Zone (f) The defendant, prior to sentencing, Under the current table, a defendant B by two levels in Criminal History (1) voluntarily makes full restitution; or who trafficked in 200 firearms receives VerDate 11 the same six-level enhancement as a prohibited persons statutes for explosive Proposed Amendment: Prior Felonies defendant who trafficked in 50 firearms. and firearm offenses, respectively. 17. Synopsis of Proposed According to the ATF, from 1995 (There is no statutory definition of Amendment: This proposed amendment through 1997, nearly a quarter of all ‘‘prohibited person’’.) The relevant resolves a circuit conflict regarding defendants sentenced under § 2K2.1 for statutory provision for § 2K1.3 is 18 whether a crime committed after the trafficking more than 50 firearms U.S.C. 842(i), and for § 2K2.1, the commission of the instant offense of received sentences of less than one year, relevant statutory provisions are 18 felon in possession of a firearm, but or no term of imprisonment whatsoever, U.S.C. 922(g) and (n). sentenced before sentencing on the despite the encouraged upward The proposed amendment also instant offense, is counted as a ‘‘felony departure provided in Application Note clarifies that the relevant time to conviction’’ for purposes of determining 15 to § 2K2.1. determine whether a person qualifies as the defendant’s base offense level. The Option 1 also makes a conforming a ‘‘prohibited person’’ is as of the time proposed amendment adopts the change to Application Note 16 regarding the defendant committed the instant minority view that an offense upward departures. offense. This clarification is consistent committed after the commission of any Option 2 amends the table to provide with the proposed amendment on prior part of the offense cannot be counted as increases of two level increments and felonies, which provides that increased a ‘‘felony conviction’’. Accordingly, the compresses the table by providing a base offense levels are only applied if proposed amendment clarifies, in wider range for the number of firearms the defendant committed the instant § 2K2.1(a)(1), (a)(2), (a)(3) and (a)(4)(A), for each increase. Compressing the table offense subsequent to sustaining certain that the instant offense must have been in this manner diminishes some of the felony convictions. committed subsequent to sustaining the fact-finding required to determine how prior felony conviction(s). In so doing, many firearms were involved in the Proposed Amendment the proposed amendment adopts a rule offense. Section 2K1.3(a)(1) and (a)(2) are that is consistent with the requirements Proposed Amendment amended by striking ‘‘; or’’ each place concerning the use of prior convictions it appears and inserting a semi-colon. under §§ 4B1.1 (Career Offender) and Option 1 Section 2K1.3(a) is amended by 4B1.2 (Definitions of Terms Used in Section 2K2.1(b)(1)(F) is amended by striking the text of subdivision (3) in its Section 4B1.1). striking ‘‘50 or more’’ and inserting ‘‘50– entirety and inserting the following: The proposed amendment also makes 99’’; and by striking the period at the ‘‘16, if the defendant (A) was a conforming changes to § 2K1.3 end and inserting the following: prohibited person at the time the (Unlawful Receipt, Possession, or ‘‘(G)100–199 add 7 defendant committed the instant Transportation of Explosive Materials; (H)200 or more add 8.’’. offense; or (B) knowingly distributed Prohibited Transactions Involving The Commentary to § 2K2.1 captioned explosive materials to a prohibited Explosive Materials). ‘‘Application Notes’’ is amended in person; or’’. Proposed Amendment Note 16 by striking ‘‘significantly’’ and The Commentary to § 2K1.3 captioned inserting ‘‘substantially’’; and by ‘‘Application Notes’’ is amended by Section 2K1.3(a)(1) is amended by striking ‘‘fifty’’ and inserting ‘‘200’’. striking the text of Note 3 in its entirety striking ‘‘had at least two prior felony convictions of either a crime of violence Option 2 and inserting the following: ‘‘For purposes of subsection (a)(3), or a controlled substance offense; or’’ Section 2K2.1(b)(1) is amended in the ‘prohibited person’ means any person and inserting ‘‘committed any part of table by striking subdivisions (A) designated in 18 U.S.C. § 842(i).’’. the instant offense subsequent to through (F) in their entirety and Sections 2K2.1(a)(1), (a)(2), and (a)(3) sustaining at least two felony inserting the following: are amended by striking ‘‘; or’’ each convictions of either a crime of violence ‘‘(A) 3–7 add 2 place it appears and inserting a semi- or a controlled substance offense;’’; (B) 8–24 add 4 colon. Section 2K1.3(a)(2) is amended by (C) 25–99 add 6 striking ‘‘had one prior felony Section 2K2.1(a)(4)(B) is amended by (D) 100–199 add 8 conviction of either a crime of violence striking ‘‘is’’ after ‘‘(i)’’ and inserting (E) 200 or more add 10.’’. or a controlled substance offense; or’’ ‘‘was’’; by inserting ‘‘at the time the and inserting ‘‘committed any part of The Commentary to § 2K2.1 captioned defendant committed the instant the instant offense subsequent to ‘‘Application Notes’’ is amended in offense’’ after ‘‘prohibited person’’; and sustaining one felony conviction of Note 16 by striking ‘‘significantly’’ and by striking ‘‘or’’ after ‘‘922(d);’’. inserting ‘‘substantially’’; and by either a crime of violence or a controlled Section 2K2.1(a)(5) is amended by striking ‘‘fifty’’ and inserting ‘‘200’’. substance offense;’’. striking ‘‘or’’ after ‘‘§ 922(d);’’. The Commentary to § 2K1.3 captioned Proposed Amendment: Prohibited Section 2K2.1(a)(6) is amended by ‘‘Application Notes’’ is amended by Person Definition striking ‘‘is’’ after ‘‘(A)’’ and inserting striking the text of Note 2 in its entirety 16. Synopsis of Proposed ‘‘was’’; by inserting ‘‘at the time the and inserting the following: Amendment: This proposed amendment defendant committed the instant ‘‘For purposes of this guideline— modifies the definition of ‘‘prohibited offense’’ after ‘‘prohibited person’’; and ‘Controlled substance offense’ has the person’’ in §§ 2K1.3 (Unlawful Receipt, by striking ‘‘or’’ after ‘‘§ 922(d));’’. meaning given that term in § 4B1.2(b) Possession, or Transportation of The Commentary to § 2K2.1 captioned and Application Note 1 of the Explosive Materials; Prohibited ‘‘Application Notes’’ is amended by Commentary to § 4B1.2 (Definitions of Transactions Involving Explosive striking the text of Note 6 in its entirety Terms Used in Section 4B1.1). Materials) and 2K2.1 (Unlawful Receipt, and inserting the following: ‘Crime of violence’ has the meaning Possession, or Transportation of ‘‘For purposes of subsections (a)(4)(B) given that term in § 4B1.2(a) and Firearms or Ammunition; Prohibited and (a)(6), a ‘prohibited person’ is any Application Note 1 of the Commentary Transactions Involving Firearms or person designated in 18 U.S.C. 922(g) or to § 4B1.2 (Definitions of Terms Used in Ammunition) to refer to the relevant 922(n).’’. Section 4B1.1). VerDate 11 ‘Felony conviction’ means a prior Section 2K2.1(a) is amended in previously deported after a criminal adult federal or state conviction for an subdivision (4)(B) by striking ‘‘; or’’ after conviction, and the conviction was for offense punishable by death or ‘‘922(d)’’ and inserting a semi-colon; in an aggravated felony. imprisonment for a term exceeding one subdivision (5), by striking the ‘‘; or’’ The Commission has received year, regardless of whether such offense after ‘‘921(a)(30)’’ and inserting a semi- comment that § 2L1.2 often results in is specifically designated as a felony colon; and in subdivision (6) by striking offense levels that are disproportionate and regardless of the actual sentence ‘‘; or’’ after ‘‘§ 922(d)’’ and inserting a to the seriousness of the prior imposed. A conviction for an offense semi-colon. aggravated felony conviction. This committed at age eighteen or older is an The Commentary to § 2K2.1 captioned occurs for two primary reasons. First, 8 adult conviction. A conviction for an ‘‘Application Notes’’ is amended by U.S.C. 1101(a)(43) and, by reference, offense committed prior to age eighteen striking Note 5 in its entirety and § 2L1.2, defines aggravated felony very is an adult conviction if it is classified inserting the following: broadly. Second, subsection (b)(1) as an adult conviction under the laws of ‘‘5. For purposes of this guideline— neither distinguishes among the many the jurisdiction in which the defendant ‘Controlled substance offense’ has the types of aggravated felonies for purposes was convicted (e.g., a federal conviction meaning given that term in § 4B1.2(b) of triggering the 16-level enhancement, for an offense committed prior to the and Application Note 1 of the nor provides for smaller increases for defendant’s eighteenth birthday is an Commentary to § 4B1.2 (Definitions of less serious aggravated felonies. adult conviction if the defendant was Terms Used in Section 4B1.1). The proposed amendment is intended expressly proceeded against as an ‘Crime of violence’ has the meaning to achieve more proportionate adult).’’. given that term in § 4B1.2(a) and punishment by providing tiered The Commentary to § 2K1.3 captioned Application Note 1 of the Commentary sentencing enhancements based on the ‘‘Application Notes’’ is amended in to § 4B1.2 (Definitions of Terms Used in period of imprisonment the defendant Note 9 by inserting before the first Section 4B1.1). actually served for the prior aggravated paragraph the following: ‘Felony conviction’ means a prior felony. In addition, the amendment ‘‘For purposes of applying subsection adult federal or state conviction for an contains two options for providing (a)(1) or (2), use only those felony offense punishable by death or increased punishment for the most convictions that receive criminal history imprisonment for a term exceeding one serious aggravated felonies. Under points under § 4A1.1(a), (b), or (c). In year, regardless of whether such offense Option One, the 16-level enhancement addition, for purposes of applying is specifically designated as a felony would be triggered not only by the subsection (a)(1), use only those felony and regardless of the actual sentence period of imprisonment actually served convictions that are counted separately imposed. A conviction for an offense but also by all aggravated felonies under § 4A1.1(a), (b), or (c). See committed at age eighteen or older is an involving death, serious bodily injury, § 4A1.2(a)(2); § 4A1.2, comment. (n.3).’’. adult conviction. A conviction for an the discharge or other use of a firearm Section 2K2.1(a)(1) is amended by offense committed prior to age eighteen or dangerous weapon, or a serious drug striking ‘‘had at least two prior felony is an adult conviction if it is classified trafficking offense, regardless of the convictions of either a crime of violence as an adult conviction under the laws of period of imprisonment actually served or a controlled substance offense; or’’ the jurisdiction in which the defendant by the defendant. Alternatively, Option and inserting ‘‘committed any part of was convicted (e.g., a federal conviction Two would encourage an upward the instant offense subsequent to for an offense committed prior to the departure in such cases, which could sustaining at least two felony defendant’s eighteenth birthday is an result in an increase greater than the 16- convictions of either a crime of violence adult conviction if the defendant was level enhancement for these most or a controlled substance offense;’’. expressly proceeded against as an serious aggravated felonies. Section 2K2.1(a)(2) is amended by adult).’’. The Commission invites comment as striking ‘‘had at least two prior felony The Commentary to § 2K2.1 captioned to whether the 16-level enhancement convictions of either a crime of violence ‘‘Application Notes’’ is amended in provided by subsection (b)(1) should be or a controlled substance offense; or’’ Note 15 by inserting before the first graduated on some basis other than and inserting ‘‘committed any part of paragraph the following: period of imprisonment actually served, the instant offense subsequent to ‘‘For purposes of applying subsection perhaps by extending the approach sustaining at least two felony (a)(1), (2), (3), or (4)(A), use only those taken by Option 1 throughout the other convictions of either a crime of violence felony convictions that receive criminal tiers. In addition, the Commission or a controlled substance offense;’’. history points under § 4A1.1(a), (b), or invites comment as to whether Section 2K2.1(a)(3) is amended by (c). In addition, for purposes of applying aggravated felonies that were committed striking ‘‘had one prior felony subsection (a)(1) and (a)(2), use only beyond a certain number of years prior conviction of either a crime of violence those felony convictions that are to the instant offense should not count or controlled substance offense; or’’ and counted separately under § 4A1.1(a), (b), for purposes of triggering subsection inserting ‘‘committed any part of the or (c). See § 4A1.2(a)(2); § 4A1.2, (b)(1). instant offense subsequent to sustaining comment. (n.3).’’. one felony conviction of either a crime Proposed Amendment Proposed Amendment: Immigration of violence or a controlled substance Chapter Two, Part L, Subpart 1, is offense;’’. 18. Synopsis of Proposed amended by striking § 2L1.2 in its Section 2K2.1(a)(4)(A) is amended by Amendment: This amendment modifies entirety and inserting the following: striking ‘‘had one prior felony § 2L1.2(b)(1) (Unlawful Entering or conviction of either a crime of violence Remaining in the United States) to ‘‘§ 2L1.2. Unlawfully Entering or or controlled substance offense’’ and provide more graduated sentencing Remaining in the United States inserting ‘‘committed any part of the enhancements based on the seriousness (a) Base Offense Level: 8. instant offense subsequent to sustaining of the prior aggravated felony (b) Specific Offense Characteristic. one felony conviction of either a crime conviction. Subsection (b)(1)(A) (1) If the defendant previously was of violence or a controlled substance currently provides a 16-level deported after a criminal conviction, or offense; or’’. enhancement if the defendant was if the defendant unlawfully remained in VerDate 11 the United States following a removal intent to manufacture a controlled (b)(1) applies but the applicable order issued after a criminal conviction, substance (see 21 U.S.C. 843(a)(6)); enhancement understates the increase as follows (if more than one (iii) Maintaining any place for the seriousness of the aggravated felony applies, apply the greater): purpose of facilitating an offense taken into account under that (A) If the conviction was for an described in subdivision (A) (see 21 subsection. In such cases, an upward aggravated felony; and— U.S.C. 856); departure may be warranted. For (i) (I) The defendant actually served a (iv) Using a communications facility example an upward departure may be period of imprisonment of at least ten in committing, causing, or facilitating an warranted if the aggravated felony years for such conviction [Option 1: or offense described in subdivision (A) (see involved any of the following: (II) The aggravated felony involved 21 U.S.C. 843(b)); and (i) Serious bodily injury, as defined in death, serious bodily injury, the (v) The offenses of aiding and Application Note 1 of the Commentary discharge or other use of a firearm or abetting, conspiring, and attempting to to § 1B1.1 (Application Instructions), or dangerous weapon, or a serious drug commit any offense described in death. trafficking offense], subdivision (A) or (B)(i), (ii), (iii), or (iv). (ii) The discharge or other use of a increase by 16 levels; ‘Felony’ means any federal, state, or firearm or a dangerous weapon. local offense punishable by (iii) A serious drug trafficking offense, (ii) The defendant actually served a imprisonment for a term exceeding one as defined in Application Note 1 of the period of imprisonment of at least five year. Commentary to § 5K2.20 (Aberrant years but less than ten years, increase by ‘Misdemeanor’ means any federal, Behavior).] [10][12] levels; state, or local offense punishable by (B) Downward Departure (iii) The defendant actually served a imprisonment for a term of Provisions.—A downward departure period of imprisonment of at least two imprisonment of one year or less. may be warranted in a case in which the years but less than five years, increase ‘Serious bodily injury’ has the defendant was not advised, at the time by [8] levels; or meaning given that term in Application the defendant previously was deported (iv)(I) The defendant actually served a Note 1 of the Commentary to § 1B1.1 or removed, of the criminal period of imprisonment of less than two (Application Instructions). consequences of reentry after years, or (II) the sentence imposed was ‘Serious drug trafficking offense’ has deportation or removal.’’. only a term of probation or other the meaning given that term in Issues for Comment: The Commission sentence alternative to a term of Application Note 1 of the Commentary invites comment regarding whether the imprisonment, or a combination of to § 5K2.20 (Aberrant Behavior). enhancement in § 2L1.2(b)(1) for a probation and other sentence alternative 2. Application of Subsection (b)(1).— previous conviction for an aggravated to a term of imprisonment, increase by For purposes of subsection (b)(1): felony should be graduated based on a [6] levels. (A) A defendant shall be considered factor other than, or in addition to, the (B) If the conviction was for (i) any to be deported if the defendant has been period of imprisonment the defendant felony other than an aggravated felony; removed or has departed the United actually served for the aggravated or (ii) three or more misdemeanors that States while an order of exclusion, felony. Should the enhancement be are crimes of violence or controlled deportation, or removal was graduated based on the type of substance offenses, increase by 4 levels. outstanding. aggravated felony involved? For Commentary (B) A defendant shall be considered to example, should the approach of Option be deported after a conviction if the One for subsection (b)(1)(A)(i) be Statutory Provisions: 8 U.S.C. deportation was subsequent to the extended to subdivisions (ii) through § 1325(a) (second or subsequent offense conviction, whether or not the (iv) of subsection (b)(1)? only), 8 U.S.C. 1326. For additional deportation was in response to such The Commission also invites statutory provision(s), see Appendix A conviction. comment on whether the enhancement (Statutory Index). (C) A defendant shall be considered to in § 2L1.2(b)(1) for a previous Application Notes: have remained in the United States conviction for an aggravated felony ‘‘1. Definitions.—For purposes of this following a removal order issued after a should take into consideration only guideline: conviction if the removal order was aggravated felonies that were committed ‘Aggravated felony’ has the meaning subsequent to the conviction, whether within a specified time period, e.g., given that term in 8 U.S.C. 1101(a)(43) or not the removal order was in fifteen years, or the counting rules without regard to the date of conviction response to such conviction. provided by § 4A1.2 (Definitions and of the aggravated felony. (D) The period of imprisonment that Instructions for Computing Criminal ‘Controlled substance offense’— the defendant actually served for the History). (A) Means an offense under federal or aggravated felony includes, in the case state law that prohibits the manufacture, of a defendant who escaped from Proposed Amendment: Nuclear, import, export, distribution, or imprisonment, time the defendant Biological, and Chemical Weapons dispensing of a controlled substance (or would have served if the defendant had 19. Synopsis of Proposed a counterfeit substance) or the not escaped. Amendment: This is a two-part possession of a controlled substance (or 3. Computation of Criminal History amendment. a counterfeit substance) with intent to Points.—Prior felony and misdemeanor First, in response to the sense of manufacture, import, export, distribute, convictions taken into account under Congress contained in section 1423(a) of or dispense; and subsection (b) also are counted for the National Defense Authorization Act (B) Includes— purposes of determining criminal for Fiscal Year 1997 that guideline (i) Unlawfully possessing a listed history points pursuant to Chapter Four, penalties are inadequate for certain chemical with intent to manufacture a Part A (Criminal History). offenses involving the importation, controlled substance (see 21 U.S.C. 4. Departure Provisions.— attempted importation, exportation, and 841(d)(1)); [Option Two: attempted exportation of nuclear, (ii) Unlawfully possessing a (A) Upward Departure Provisions.— chemical, and biological weapons, prohibited flask or equipment with There may be cases in which subsection materials, or technologies, the proposed VerDate 11 amendment increases by four levels the for the possibility of a higher offense (6) It provides two cross references, if base offense levels in §§ 2M5.1 (the level through application of the first the resulting offense level is greater, if guideline covering the evasion of export degree murder guideline. death resulted (in which case the first or controls) and 2M5.2 (the guideline It is anticipated that the second base second degree murder guideline would covering the exportation of arms, offense level, of level [28][30], will apply) or if the offense was tantamount munitions, and military equipment apply in most cases, specifically those to attempted murder (in which case the without a license). A four-level increase cases that do not threaten the national attempted murder guideline would is proposed for those offenses in security of the United States. apply). These cross references are also subsection (a)(1) of both §§ 2M5.1 and (2) It provides a six-level decrease, in modeled after cross references found in 2M5.2 to make the penalty structure for subsection (b)(1), if the offense involved § 2N1.1, the guideline for tampering those offenses proportional to other only a threat to use a nuclear, biological, with consumer products. national security guidelines in Chapter or chemical weapon or material, and (7) It provides a special instruction Two, Part M. In addition, the Statutory there was no conduct evidencing an that if the defendant is convicted of one Index is proposed to be amended to intent to carry out the threat. After count involving the death of, serious refer one of the offenses, 50 U.S.C. 1701 review of the cases and meeting with bodily injury to, or attempted murder of, (which currently is not referenced in the representatives of the Department of more than one victim, the grouping Statutory Index), to both §§ 2M5.1 and Justice and the Federal Bureau of rules will be applied as if the defendant 2M5.2. Investigations, it became apparent that had been convicted of separate counts Second, the proposed amendment the least culpable offenders, and the for each such victim. substantially revises § 2M6.1 (the least serious of these offenses, are those (8) It amends the Statutory Index to guideline covering the unlawful that involve non-credible threats. The refer 18 U.S.C. 175 and 229 to § 2M6.1 acquisition, alteration, use, transfer, or extent of the adjustment (i.e., six levels) and to delete a number of guideline possession of nuclear material, mirrors in reverse the six-level increase references for 18 U.S.C. 2332a and weapons, or facilities) in order to in the threatening communications instead provide a reference for that incorporate into that guideline two guideline, § 2A6.1, if the conduct offense to §§ 2K1.4 (in the case of relatively new offenses, 18 U.S.C. 175, involved an actual intent to carry out weapons of mass destruction that are relating to biological weapons, and 18 the threat. explosive devices and 2M6.1 (in the U.S.C. 229, relating to chemical (3) It provides, in brackets, a two-level case of other weapons of mass weapons. Specifically, the amendment enhancement, in subsection (b)(2), if the destruction). proposes to modify § 2M6.1 in the offense involved particularly dangerous Three issues for comment follow the following ways: types of nuclear, chemical, and proposed amendment. biological weapons and materials. Those (1) It provides two alternative base Proposed Amendment offense levels. The first base offense weapons and materials are defined in level of level 42 applies if the offense the guideline commentary by reference Section 2M5.1 is amended by striking was committed with the intent to injure to the applicable statutory and subsection (a) in its entirety and the United States or to aid a foreign regulatory provisions. This inserting the following: government or foreign terrorist enhancement acknowledges the ‘‘(a) Base Offense Level (Apply the organization. This incorporates into the distinctions already made in greater): base offense level the 12-level international treaties, provisions of title (1) [26,] if national security controls enhancement currently found in the 18, United States Code, the relevant or controls relating to the proliferation guideline for such intent and does not regulatory schemes, and by of nuclear, biological, or chemical change the overall offense level for these representatives of the Department of weapons or materials were evaded; or (2) 14, otherwise.’’. offenses. ‘‘Foreign terrorist Justice and the Federal Bureau of Section 2M5.2(a)(1) is amended by organizations’’ are added because Investigations, that certain types of striking ‘‘22’’ and inserting ‘‘[26]’’. weapons and materials are inherently Congress has found that such groups are The heading to Chapter Two, Part M, investing in the acquisition of more lethal and pose a greater threat to is amended by adding at the end ‘‘And unconventional weapons such as the public safety. Weapons of Mass Destruction’’. nuclear, biological, and chemical agents. (4) It provides an enhancement, in The heading to Chapter Two, Part M, It is anticipated that this base offense subsection (b)(3), if any victim sustained Subpart 6, is amended by striking level will apply to cases as apparently serious bodily injury or death. This ‘‘Atomic Energy’’ and inserting ‘‘ originally contemplated by the enhancement is modeled after the Nuclear, Biological, And Chemical guideline, i.e., the acquisition of nuclear enhancement found in § 2N1.1, the Weapons And Materials, And Other material from defense, or even civilian, guideline covering tampering with Weapons of Mass Destruction’’. nuclear facilities in order to assist consumer products. Like that guideline, Chapter Two, Part M, is amended by foreign governments, thereby creating a the amendment provides commentary striking § 2M6.1 in its entirety and threat to the national security, as well as (in the background) stating that the base inserting the following: to cases that implicate the national offense level reflects that the offense security but involve biological and typically will involve a risk of serious ‘‘§ 2M6.1. Unlawful Production, chemical weapons. bodily injury or death or will cause or Development, Acquisition, Stockpiling, The proposed amendment provides intend to cause bodily injury. Alteration, Use, Transfer, or Possession that, if the base offense level of level 42 (5) It provides two options for cases of Nuclear Material, Weapons, or applies, none of the adjustments in involving a substantial disruption of Facilities, Biological Agents, Chemical subsection (b) shall apply. This is public, governmental, or business Weapons, or Other Weapons of Mass intended to cap the very high offense functions or services, or the substantial Destruction level attendant to this base offense level expenditure of funds for clean up and (a) Base Offense Level: and also to preclude the possibility of a decontamination efforts. Option One (1) [42], if the offense was committed downward adjustment if the offense provides for a four-level enhancement with intent (A) to injure the United involved only a threat. However, if in such cases. Option Two provides for States; or (B) to aid a foreign nation or death results, the cross reference allows an upward departure provision. a foreign terrorist organization; or VerDate 11 (2) [28][30], otherwise. Application Notes: (a)(1) applies, do not apply subsection (b) Specific Offense Characteristics: ‘‘1. Definitions.—For purposes of this (b). If subsection (a)(2) applies, and: guideline: 3. Applicability of Subsections (b)(2) (1) If the offense (A) involved a threat Biological agent has the meaning and (b)(4) in Threat Cases.—The to use a nuclear weapon, nuclear given that term in 18 U.S.C. 178(1). application of subsection (b)(1) in a case material, nuclear byproduct material, Chemical weapon has the meaning involving a threat shall not preclude the biological agent, chemical weapon, or given that term in 18 U.S.C. 229F(1). application of either subsection (b)(2) or other weapon of mass destruction; and Foreign terrorist organization (A) subsection (b)(4) in such a case. (B) did not involve any conduct means an organization that engages in 4. Application of Special evidencing an intent or ability to carry terrorist activity that threatens the Instruction.—Subsection (d) applies in out the threat, decrease by [6] levels. security of a national of the United any case in which the defendant is [(2) If the offense involved (A) a select States or the national security of the convicted of a single count involving biological agent; (B) a listed precursor or United States; and (B) includes an (A) the death or permanent, life- a listed toxic chemical; (C) nuclear organization designated by the Secretary threatening, or serious bodily injury of material or nuclear byproduct material; of State as a foreign terrorist more than one victim; or (B) conduct or (D) a weapon of mass destruction that organization pursuant to section 219 of tantamount to the attempted murder of contains any agent, precursor, toxic the Immigration and Nationality Act (8 more than one victim, regardless of chemical, or material referred to in U.S.C. 1219). National of the United whether the offense level is determined subdivision (A), (B), or (C), increase by States has the meaning given that term under subsection (a), subsections (a) and [2] levels.] in section 101(a)(22) of the Immigration (b), or subsection (c). (3) If (A) any victim sustained and Nationality Act (8 U.S.C. 5. Inapplicability of § 3A1.4 in Certain permanent or life-threatening bodily 1101(a)(22)). Cases.—If subsection (a)(1) applies injury, increase by 4 levels; (B) any Listed precursor or listed toxic because the offense was committed with victim sustained serious bodily injury, chemical means a precursor or toxic the intent to aid an international foreign increase by 2 levels; or (C) the degree of chemical, respectively, listed in terrorist organization, do not apply injury is between that specified in Schedule I of the Annex on Chemicals § 3A1.4 (Terrorism). subdivisions (A) and (B), increase by 3 to the Chemical Weapons Convention. 6. Departure Provisions.— (A) Upward Departure Provisions.— levels. See 18 U.S.C. 229F(6)(B), (8)(B). [Option One: (4) If the offense There may be cases in which the offense Precursor has the meaning given that resulted in (A) substantial disruption of level determined above substantially term in 18 U.S.C. 229F(6)(A). Toxic public, governmental, or business understates the seriousness of the chemical has the meaning given that functions or services; or (B) a substantial offense. In such cases, an upward term in 18 U.S.C. 229F(8)(A). expenditure of funds to clean up, departure may be warranted. The Nuclear byproduct material has the decontaminate, or otherwise respond to following is a non-exhaustive list of meaning given that term in 18 U.S.C. the offense, increase by [4] levels.] circumstances in which an upward 831(f)(2). (c) Cross References: departure may be warranted: (1) If the offense resulted in death, Nuclear material has the meaning (i) The offense posed a substantial risk apply § 2A1.1 (First Degree Murder) if given that term in 18 U.S.C. 831(f)(1). of death or serious bodily injury to the death was caused intentionally or Select biological agent means a numerous victims (e.g., chlorine gas was knowingly, or § 2A1.2 (Second Degree biological agent or toxin identified by released in a crowded movie theater). Murder) in any other case, if the the Secretary of Health and Human (ii) The offense caused extreme resulting offense level is greater than Services on the select agent list psychological injury. See § 5K2.3 that determined above. established pursuant to section 511(d) of (Extreme Psychological Injury). (2) If the offense was tantamount to the Antiterrorism and Effective Death (iii) The offense caused substantial attempted murder, apply § 2A2.1 Penalty Act, Pub. L. 104–132. See 42 property damage or monetary loss. See (Assault with Intent to Commit Murder; CFR part 62. Toxin has the meaning § 5K2.5 (Property Damage or Loss). Attempted Murder), if the resulting given that term in 18 U.S.C. 178(2). [Option Two: (iv) The offense resulted offense level is greater than that Weapon of mass destruction (A) has in substantial disruption of public, determined above. the meaning given that term in 18 U.S.C. governmental, or business functions or (d) Special Instruction: § 2332a(c)(2)(B), (C), and (D); and (B) services, or the response to the offense (1) If the defendant is convicted of a includes any radiological dispersal required a substantial expenditure (e.g., single count involving (A) the death or device, regardless of whether the to provide environmental permanent, life-threatening, or serious radioactive material contained in that decontamination of the affected area). bodily injury of more than one victim, radiological dispersal device was See, e.g., § 5K2.7 (Disruption of or (B) conduct tantamount to the nuclear material, nuclear byproduct Governmental Function).] attempted murder of more than one material, or other radioactive material (B) Downward Departure Provision.— victim, Chapter Three, Part D (Multiple (such as low-grade medical, industrial, There may be cases in which the offense Counts), shall be applied as if the or research radioactive waste). level determined above substantially defendant had been convicted of a Radiological dispersal device means any overstates the seriousness of the offense. separate count for each such victim. device, including any weapon or In such cases, a downward departure equipment, other than a nuclear may be warranted. For example, in the Commentary explosion, specifically designed to unusual case in which the offense did Statutory Provisions: 18 U.S.C. §§ 175, disseminate radioactive material in not cause a risk of death or serious 229, 831, 2332a (only with respect to order to cause property destruction, bodily injury, and neither caused nor weapons of mass destruction as defined damage, or bodily injury by means of was intended to cause bodily injury, a in 18 U.S.C. § 2332a(c)(2)(B), (C), and the radiation produced by the decay of downward departure may be warranted. (D)); 42 U.S.C. §§ 2077(b), 2122, 2131. the radioactive material. Background: The base offense level For additional statutory provision(s), see 2. Inapplicability of Subsection (b) to reflects that this offense typically poses Appendix A (Statutory Index). Subsection (a)(1) Cases.—If subsection a risk of death or serious bodily injury VerDate 11 to one or more victims; or causes, or is should § 2X1.1 (Attempt, Solicitation, or accountable for the underlying offense intended to cause, bodily injury.’’. Conspiracy) apply? solely on the basis of § 1B1.3(a)(1)(B) Appendix A (Statutory Index) is (i.e., jointly undertaken criminal Proposed Amendment: Money amended by inserting after the line activity). However, this limitation has Laundering referenced to ‘‘18 U.S.C. § 155’’ the minimal practical consequence. following: 20. Synopsis of Proposed Commission data indicate that less than ‘‘18 U.S.C. § 1752M6.1’’. Amendment: one percent of defendants who would Appendix A (Statutory Index) is Overview not be categorized as ‘‘direct’’ money amended by inserting after the line launderers because of this limitation referenced to ‘‘18 U.S.C. 228’’ the The proposed amendment would be subject to subsection (a)(1) if following: consolidates the two current money it were expanded to include defendants ‘‘18 U.S.C. § 2292M6.1’’. laundering guidelines, §§ 2S1.1 and who would be otherwise accountable for Appendix A (Statutory Index) is 2S1.2, and applies to convictions under the underlying offense under amended in the line referenced to 18 either 18 U.S.C. 1956 or 1957. The § 1B1.3(a)(1)(B). The Commission U.S.C. 2332a by striking ‘‘2A1.1, 2A1.2, primary feature of the consolidated invites comment as to whether 2A1.3, 2A1.4, 2A1.5, 2A2.1, 2A2.2, amendment structure is that it ties application of subsection (a)(1) should 2B1.3,’’ and by inserting ‘‘, 2M6.1’’ after offense levels for money laundering be expanded to include offenders who ‘‘2K1.4’’. more closely to the underlying criminal otherwise would be accountable for the Appendix A (Statutory Index) is conduct that was the source of the underlying offense solely on the basis of amended by inserting after the line criminally derived funds. The § 1B1.3(a)(1)(B). referenced to ‘‘50 U.S.C. App. 462’’ the amendment accomplishes this objective For ‘‘third party’’ money launderers following: by separating money laundering (i.e., defendants who did not commit or ‘‘50 U.S.C. App. § 1701 2M5.1, offenders, regardless of the statute of would not be accountable for the 2M5.2’’. conviction, into two categories for underlying offense under purposes of determining the base Issues for Comment § 1B1.3(a)(1)(A)), subsection (a)(2) sets offense level. The base offense level is the base offense level at level eight, plus (1) The Commission invites comment determined differently, depending on an increase based on the value of the on whether the above proposal whether the defendant is a ‘‘direct’’ or laundered funds from the table in appropriately addresses the offenses in a ‘‘third party’’ money launderer (money subsection (b)(1) of § 2F1.1 (Fraud and 18 U.S.C. 175, relating to biological launderers who commit the underlying Deceit). Subsection (a)(2) also applies to weapons, and in 18 U.S.C. 229, relating offense which generated the criminal ‘‘direct’’ money laundering defendants to chemical weapons. Specifically, are proceeds versus money launderers who for whom subsection (a)(1) would apply these offenses more appropriately did not commit the underlying offense). but the offense level for the underlying addressed through a guideline that Specific offense characteristics are offense is impossible or impracticable to incorporates into the base offense level included in this proposed amendment determine. any or all of the aggravating factors that to increase the total offense level in Under the structure of this proposed may be associated with these offenses order to assure greater punishment for amendment, there may be some cases in (e.g., the inherent psychological harm, those money laundering defendants which the ‘‘third party’’ money the risk of bodily harm, and the whose conduct is considered more launderers will receive a higher base economic harm associated with cleanup serious and harmful to the societal offense level than the offenders who and decontamination efforts), or is it interests which the money laundering committed the underlying offense. This preferable to address these harms as laws are designed to protect. conceivably could occur in cases in specific offense characteristics? which the underlying offense that Base Offense Level (2) The Commission also invites generated the criminally derived comment on how threats to use nuclear, Subsection (a) provides two distinct proceeds is a fraud or other economic biological, or chemical weapons should methods for determining the base crime covered by a guideline that uses be punished under the guidelines. offense level, depending on whether the the table in subsection (b)(1) of § 2F1.1, Should there be a greater differentiation defendant is a ‘‘direct’’ money launderer and the loss calculation is less than the in punishment under proposed § 2M6.1 or a ‘‘third party’’ money launderer. value of the laundered funds. For between offenses that involve only the Subsection (a)(1) sets the base offense example, the underlying offense may threatened use of such weapons level for ‘‘direct’’ money launderers at have involved the fraudulent sale of (whether or not the defendant engaged the offense level for the underlying stock for $200,000 that was worth in conduct evidencing an intent or offense from which the laundered funds $180,000. The defendant did not ability to carry out the threat) and other were derived (i.e., the base offense level commit the underlying offense, but conduct punished under that guideline? and all applicable specific offense laundered all of the $200,000. In such Alternatively, should the threatened use characteristics for the underlying a case, the value of the laundered funds of such weapons be punished under offense), if the offense level for the is $200,000, but the loss amount for § 2A6.1 (Threatening or Harassing underlying offense can be determined. purposes of § 2F1.1(b)(1) is $20,000. In Communications), and if so, how A data analysis of a representative such a case, the ‘‘third party’’ money severely should such conduct be sample of 259 money laundering cases laundering defendant may receive a punished in relation to other types of conducted by the Commission indicated higher base offense level than the threats punished under that guideline? that subsection (a)(1) would apply to 86 Chapter Two offense level for the (3) How should attempts, percent of defendants sentenced under offender who committed the fraud. conspiracies, and solicitations to the guideline (i.e., ‘‘direct’’ money Three options in Application Note 3 commit an offense under 18 U.S.C. 175 launderers comprise 86 percent of the are presented for addressing this type of or 229 be covered under the guidelines? money laundering defendants). case. Option 1 provides that a Should such attempts, conspiracies, and This proposed amendment excludes downward departure may be warranted solicitations be expressly covered by the from application of subsection (a)(1) in such a case, but limits the extent of proposed new guideline, § 2M6.1, or offenders who otherwise would be such a departure to the offense level for VerDate 11 the underlying offense conduct that of laundering funds and provides a non- include such an enhancement, absent would result if the base offense level exhaustive list of factors to be additional aggravating money were determined using subsection (a)(1). considered in making this laundering conduct. Option 2 creates a rule that the value of determination. The Commission invites Subsection (b)(3) provides a [1] level the funds is the lesser of either the comment as to whether eligibility for increase if the defendant is a ‘‘direct’’ actual value of the laundered funds or this enhancement should be expanded money launderer, none of the the value of the loss as calculated for to include ‘‘direct’’ money launderers enhancements under subsection (b)(2) purposes of § 2F1.1(b)(1). Option 3 who launder the criminal derived apply, and the value of the laundered provides no specific provision to proceeds of others, in addition to their funds is greater than $10,000. This address this type of case. own criminally derived proceeds. enhancement is intended to ensure that An analysis conducted by the Subsection (b)(2)(B) provides a [2][3] defendants who also commit the Commission indicates that this type of level enhancement if any of the underlying offense receive some case will rarely occur. In its sample of laundered funds were used [or intended incremental punishment for the money 259 cases, Commission identified no to be used] to [significantly] [materially] laundering offense, even if ineligible for cases in which the loss amount was less promote further criminal conduct. any of the other enhancements that than the value of laundered funds. In Application Note 5 limits applicability reflect more aggravated money fact, this issue can arise only in ‘‘third of this enhancement to the use of laundering offense conduct. The party’’ money laundering cases, which laundered funds to further criminal Commission specifically invites comprise only 14 percent (36 of 259 conduct in addition to, or beyond, the comment as to whether the proposed cases) of the money laundering cases in criminal conduct from which the guideline should contain such an the representative sample. Furthermore, laundered funds were derived, as enhancement. in the overwhelming majority—89 opposed to underlying offenses that Subsection (b)(4) provides a [2] level percent—of those 36 ‘‘third party’’ were completed at the time of the decrease for cases in which three cases, the underlying offense was a drug laundering. This enhancement attempts conditions are met: (1) The defendant offense, which does not give rise to this to provide increased punishment for did not commit the underlying offense problem. In its sample, the Commission two types of offense conduct: (1) Cases that generated the criminally derived identified only three ‘‘third party’’ in which the defendant uses criminally funds; (2) the defendant was convicted money laundering cases for which the derived funds to cause criminal conduct under 18 U.S.C. 1957 only; and, (3) underlying offense was a fraud or other in addition to or beyond the criminal none of the other enhancements apply. economic crime. conduct that initially generated the This downward adjustment recognizes criminally derived funds that are the that section 1957 offenses, with no Adjustments subject of the money laundering aggravating factors, may be considered In addition to the base offense level, conviction; or (2) cases in which the less serious than section 1956 offenses the proposed amendment contains a defendant reinvests all or some of the because the statutory maximum of the number of adjustments. Consistent with laundered funds back into an ongoing former is half (10 years) that of the latter the approach of tying the base offense criminal scheme to finance the (20 years), and because the government level to the underlying offense that continued operation or expansion of the is not required to prove that the section generated the criminally derived funds, criminal scheme. 1957 defendant knew that the offense subsection (b)(1) provides a [2][4][6] Subsection (b)(2)(C) provides a [2][3] from which the laundered funds were level enhancement for ‘‘third party’’ level enhancement if the offense derived was a specified unlawful money launderers who know or believe involved ‘‘sophisticated concealment.’’ activity (see 18 U.S.C. 1957(c)). that any of the laundered funds were the Application Note 6 defines Application Note 7 provides that in a proceeds of, or were intended to ‘‘sophisticated concealment’’ as case in which the defendant is to be promote, certain types of more serious especially complex or especially sentenced on a count of conviction for underlying criminal conduct; intricate offense conduct where the money laundering and a count of specifically, drug trafficking, crimes of defendant takes deliberate steps to conviction for the underlying offense violence, offenses involving firearms, conceal the nature, location, source, that generated the laundered funds, explosives, national security, terrorism, ownership, or control of the criminally such counts shall be grouped pursuant and the sexual exploitation of a minor. derived funds to make the transaction to subsection (c) of § 3D1.2 (Groups of Subsection (b)(2) provides four more difficult to detect. Application Closely-Related Counts), thereby alternative enhancements, with the Note 6 also provides examples of resolving a circuit conflict on this issue. greatest applicable enhancement to be conduct that typically constitutes Providing for grouping under § 3D1.2(c) applied. Subsection (b)(2)(A) provides a sophisticated concealment. The may make appropriate a conforming [2][3][4] level increase if the defendant Commission invites comment as to amendment to Application Note 5 of is a ‘‘third party’’ money launderer who whether the applicability of this § 3D1.2 to provide that grouping under is ‘‘in the business’’ of laundering funds. enhancement should be expanded to § 3D1.2(c) also applies in cases in which This adjustment reflects the view that, include all forms of concealment, even the base offense level from the guideline similar to a professional ‘‘fence’’ (see if the concealment is not sophisticated. applicable to one count specifically § 2B1.1(b)(4)(B)), defendants who Subsection (b)(2)(D) provides a [1][2] incorporates the offense level applicable routinely engage in laundering funds on level enhancement if the defendant to the other related count. In such cases, behalf of third parties and who gain launders funds with the intent to engage the conduct that forms the basis for the financially from engaging in such in conduct constituting a violation of base offense level in one count is the transactions warrant additional section 7201 or 7206 of the Internal same aggravating conduct that forms the punishment because they encourage the Revenue Code (title 26, United States basis for the offense level of the other commission of additional underlying Code). A conviction under the relevant count. criminal offenses. Application Note 6 subsection of 18 U.S.C. 1956 is required The proposed amendment provides directs the court to consider the totality for the enhancement to apply. The that convictions under 18 U.S.C. 1960 of the circumstances in determining Commission invites comment as to (Illegal Money Transmitting Businesses; whether a defendant was in the business whether the proposed guideline should failure to obtain appropriate licenses or VerDate 11 comply with registration requirements (C) If the offense involved and there is more than one underlying for money transmitting businesses) be sophisticated concealment, increase by offense, the offense level for the referenced to § 2T2.2 (Regulatory [2][3] levels. underlying offense is to be determined Offenses). The Commission invites [(D) If the defendant is convicted (A) under the procedures set forth in comment as to whether such violations under 18 U.S.C. § 1956(a)(1)(A)(ii); (B) Application Note 3 of the Commentary are more appropriately referenced to under 18 U.S.C. § 1956(a)(1)(B)(ii); (C) to § 1B1.5 (Interpretation of References § 2S1.3 (Structuring Transactions to under 18 U.S.C. § 1956(a)(2)(B)(ii); (D) to Other Guidelines). Evade Reporting Requirements). Finally, under 18 U.S.C. § 1956(a)(3)(C); or (E) of (B) Defendants Otherwise the proposed amendment provides that attempting, aiding or abetting, or Accountable.—In order for subsection convictions under 31 U.S.C. § 5326 conspiracy to commit any of the (a)(1) to apply, the defendant must have relevant to structuring violations be offenses referred to in subdivisions (A) committed the underlying offense or be referenced to § 2S1.3 (Structuring through (D), increase by [1][2] levels.] otherwise accountable for the Transactions). [(3) If (A) subsection (a)(1) applies; (B) underlying offense under subsection (b)(2) does not apply; and (C) § 1B1.3(a)(1)(A) (Relevant Conduct). The Proposed Amendment the value of the laundered funds is fact that the defendant was involved in Chapter Two, Part S, Subpart 1 is greater than $10,000, increase by [1] laundering criminally derived funds amended by striking §§ 2S1.1 and 2S1.2 level.] after the commission of the underlying and their accompanying commentary in [(4) If (A) subsection (a)(2) applies offense, without additional involvement their entirety and inserting the because the defendant did not commit in the underlying offense, does not following: the underlying offense; (B) the establish that the defendant committed, defendant is convicted under 18 U.S.C. aided, abetted, counseled, commanded, ‘‘§ 2S1.1. Laundering of Monetary 1957; and (C) none of the enhancements induced, procured, or willfully caused Instruments; Engaging in Monetary in subsections (b)(1) and (b)(2) apply, the underlying offense. Transactions in Property Derived from decrease by [2] levels.] (C) Non-Applicability of Unlawful Activity Enhancements—If subsection (a)(1) (a) Base Offense Level: Commentary applies, and the conduct that forms the (1) The offense level for the Statutory Provisions: 18 U.S.C. 1956, basis for an enhancement under the underlying offense from which the 1957. guideline applicable to the underlying laundered funds were derived, if (A) the Application Notes: offense is the only conduct that forms defendant committed the underlying 1. Definitions.—For purposes of this the basis for application of any of the offense (or otherwise would be guideline: enhancements in subsection (b) of this accountable for the underlying offense ‘Crime of violence’ has the meaning guideline, do not apply the subsection under § 1B1.3(a)(1)(A) (Relevant given that term in subsection (a)(1) of (b) enhancement under this guideline. Conduct)); and (B) the offense level for § 4B1.2 (Definitions of Terms Used in 3. Application of Subsection (a)(2).— that offense can be determined; or § 4B1.1). (A) In General.—Subsection (a)(2) (2) 8 plus the number of offense levels ‘Criminally derived funds’ means any applies to cases in which (A) the from the table in subsection (b)(1) of funds derived [or represented to be defendant did not commit the § 2F1.1 (Fraud and Deceit) derived] from conduct constituting a underlying offense; or (B) the defendant corresponding to the value of the criminal offense. committed the underlying offense (or laundered funds, otherwise. ‘Laundered funds’ means the otherwise would be accountable for the (b) Specific Offense Characteristics: property, funds, or monetary instrument underlying offense under subsection (1) If (A) subsection (a)(2) applies involved in the transaction, financial (a)(1)(A) of § 1B1.3 (Relevant Conduct), because the defendant did not commit transaction, monetary transaction, but the offense level for the underlying the underlying offense; and (B) the transportation, transfer, or transmission offense is impossible or impracticable to defendant knew or believed that any of in violation of 18 U.S.C. 1956 or 1957. determine. the laundered funds were the proceeds ‘Laundering funds’ means the making (B) Commingled Funds.—In a case in of, or were intended to promote (i) an of a transaction, financial transaction, which a transaction, financial offense involving the manufacture, monetary transaction, or transmission, transaction, monetary transaction, importation, or distribution of a or the transporting of, property, funds, transportation, transfer, or transmission controlled substance or a listed or a monetary instrument in violation of results in the commingling of chemical; (ii) a crime of violence [as 18 U.S.C. 1956 or 1957. legitimately derived funds with defined under § 4B1.2(a)(1) (Definitions ‘Sexual exploitation of a minor’ criminally derived funds, the value of of Terms Used in § 4B1.1)]; or (iii) an means an offense involving (A) the laundered funds, for purposes of offense involving firearms, explosives, promoting prostitution by a minor; (B) subsection (a)(2), is the amount of the national security, terrorism, or the sexually exploiting a minor by criminally derived funds, not the total sexual exploitation of a minor, increase production of sexually explicit visual or amount of the commingled funds, if the by [2][4][6] levels. printed material; (C) distribution of defendant provides sufficient (2) (Apply the greatest): material involving the sexual information to determine the amount of (A) If [(i) subsection (a)(2) applies exploitation of a minor, or possession of criminally derived funds without because the defendant did not commit material involving the sexual unduly complicating or prolonging the the underlying offense; and (ii)] the exploitation of a minor with intent to sentencing process. If the amount of the defendant was in the business of distribute; or (D) aggravated sexual criminally derived funds is difficult or laundering funds, increase by [2][3][4] abuse sexual abuse, or abusive sexual impracticable to determine, the value of levels. contact, involving a minor. ‘Minor’ the laundered funds, for purposes of (B) If any of the laundered funds were means an individual under the age of 18 subsection (a)(2), is the total amount of used [or were intended to be used] to years. the commingled funds. [significantly] [materially] promote 2. Application of Subsection (a)(1).— [Value of Funds—Option 1: further criminal conduct, increase by (A) Multiple Underlying Offenses.—In (C) Value of Laundered Funds for [2][3] levels. cases in which subsection (a)(1) applies Certain Defendants.—There may be VerDate 11 cases in which (A) subsection (a)(2) such a case, the value of the laundered subsection (b)(2)(B) would apply in a applies; (B) the defendant did not funds, for purposes of subsection (a)(2), case in which the defendant reinvested commit the underlying offense; (C) the is $20,000. Accordingly, the base (i.e., plowed-back) all or part of the underlying offense is a fraud or another offense level under subsection (a)(2) is laundered funds from an ongoing, economic crime covered by a guideline the sum of the base offense level under fraudulent telemarketing scheme to that uses the table in subsection (b)(1) § 2F1.1(a) and the enhancement under finance the continued operation of that of § 2F1.1 (Fraud and Deceit); and (D) § 2F1.1(b)(1) for the value of the loss. scheme but would not apply in a case the value of the laundered funds under Therefore, in this example, the base in which the defendant used all or part subsection (a)(2) is substantially greater offense level under subsection (a)(2) is of the laundered funds only to finance than the value of the loss or other level 9 (§ 2F1.1(a) base offense level of a lavish lifestyle. Similarly, subsection monetary amount attributable to the level 6 plus § 2F1.1(b)(1) increase of 3 (b)(2)(B) would apply in a case in which underlying offense for purposes of offense levels to account for loss amount the defendant used laundered funds § 2F1.1(b)(1). In such cases, a downward of $20,000.] from an underlying drug offense to departure may be warranted to ensure [Value of Funds—Option 3: No specific purchase additional drugs for that the seriousness of the punishment provision] distribution but would not apply in a for the money laundering offense is 4. Enhancement for Business of case in which the defendant used those reasonably related to the seriousness of Laundering Funds.— laundered funds to pay for drugs the the punishment that would be (A) In General.—The court shall defendant had already distributed as warranted for the underlying offense. consider the totality of the part of the underlying drug offense. However, any such downward circumstances to determine whether a Subsection(b)(2)(B) does not apply to departure shall not result in an offense defendant who did not commit the transactions that only give the level lower than that which would underlying offense was in the business defendant access to, or the use of for result if the sentence were determined of laundering funds, for purposes of otherwise legal purposes, the criminally using the base offense level under derived funds. For example, subsection subsection (a)(1). For example, the subsection (b)(2)(A). (B) Factors to Consider.—The court (b)(2)(B) does not apply in a case in underlying offense may have involved which the defendant deposits checks the fraudulent sale of stock for $200,000 shall consider the following factors in determining whether, under the totality that represent the criminally derived that was worth $180,000. The defendant proceeds from a fraudulent scheme into did not commit the underlying offense of circumstances, the defendant was in the business of laundering funds for an account, and subsequently spends but laundered all of the $200,000. The the funds for items that are not value of the laundered funds is purposes of subsection (b)(2)(A): (i) The defendant [regularly] inherently illegal or items that do not $200,000, but the loss amount for further additional criminal conduct. purposes of § 2F1.1(b)(1) is $20,000. In [routinely] engaged in acts of laundering [Subsection (b)(2)(B) does not apply if such a case, the downward departure funds during an extended period of the value of laundered funds used or shall not result in an offense level lower time. intended to be used to promote criminal than the sum of the base offense level (ii) The defendant laundered conduct was de minimis relative to the under § 2F1.1(a) and the enhancement criminally derived funds from multiple value of the laundered funds.] under § 2F1.1(b)(1) for the value of the sources during an extended period of loss. Accordingly, a downward time. 6. Sophisticated Concealment.—For departure, if warranted, shall not result (iii) The defendant generated a purposes of subsection (b)(2)(C), in an offense level lower than level 9 substantial amount of revenue in return sophisticated concealment means (§ 2F1.1(a) base offense level of level 6 for laundering the funds. especially complex or especially plus § 2F1.1(b)(1) increase of 3 offense (iv) At the time the defendant intricate offense conduct in which levels to account for loss amount of committed the instant offense, the deliberate steps were taken to conceal $20,000).] defendant had one or more prior the nature, location, source, ownership, [Value of Funds—Option 2: convictions of an offense under 18 or control of the criminally derived (C) Value of Laundered Funds for U.S.C. 1956 or 1957, [31 U.S.C. 5313, funds, in order to make the transaction, Certain Defendants.—In a case in which 5314, 5316, 5324, or 5326] or any financial transaction, monetary (A) subsection (a)(2) applies; (B) the similar offense under state law, or an transaction, transportation, transfer, or defendant did not commit the attempt or conspiracy to commit any transmission in violation of 18 U.S.C. underlying offense; and (C) the such federal or state offense. Prior 1956 or 1957, or the extent of that underlying offense is a fraud or another convictions taken into account under violation, difficult to detect. economic crime covered by a guideline subsection (b)(2)(A) also are counted for Sophisticated concealment typically that uses the table in subsection (b)(1) purposes of determining criminal involves hiding assets or hiding of § 2F1.1 (Fraud and Deceit), the value history points pursuant to Chapter Four, transactions, or both, through: of the laundered funds is the lesser of Part A (Criminal History). (A) The use of fictitious entities; the actual value of the laundered funds 5. [Significant][Material] Promotion of (B) The use of shell corporations; or the value of the loss or other Further Criminal Conduct.—In order for (C) The creation of two or more levels monetary amount attributable to the subsection (b)(2)(B) to apply, all or part (i.e., layering) of transactions, underlying offense for purposes of of the laundered funds must have been transportation, transfers, or § 2F1.1(b)(1). For example, the used to further criminal conduct in transmissions, of criminally derived underlying offense may have involved addition to or beyond the criminal funds that were intended to appear the fraudulent sale of stock for $200,000 conduct from which the laundered legitimate; or that was worth $180,000. The defendant funds were derived. [Subsection (D) the transportation, transmission, did not commit the underlying offense (b)(2)(B) does not apply if the defendant or transfer of criminally derived funds but laundered all of the $200,000. The laundered criminally derived proceeds from or through a place inside the actual value of the laundered funds is that were generated from an underlying United States to or through a place $200,000, but the loss amount for offense that was completed at the time outside the United States (e.g., an purposes of § 2F1.1(b)(1) is $20,000. In of the laundering.] For example, offshore bank account) or from or VerDate 11 through a place outside the United are otherwise accountable for the covert agent). Note that there were no States to or through a place inside the underlying offense under directives to the Commission contained United States. For purposes of this § 1B1.3(a)(1)(B)(Relevant Conduct), in in any of the legislation that created subdivision, United States has the addition to defendants who commit or these new offenses. meaning given that term in Application are otherwise accountable for the In each instance, the new Appendix A Note 1 of the Commentary to § 2B5.1 underlying offense under references are based on a determination (Offenses Involving Counterfeit Bearer § 1B1.3(a)(1)(A). that the new offense is sufficiently Obligations of the United States). (2) Whether proposed § 2S1.1 should similar to other offenses covered by the 7. Grouping of Multiple Counts.—In a include enhancements for conduct that referenced guideline. case in which the defendant is to be constitutes elements of the money The new offenses and proposed sentenced on a count (or a Group of laundering offense, even if the conduct guideline references are as follows: counts) for the underlying offense from did not constitute an aggravated form of 7 U.S.C. 7734—prohibits knowingly which the laundered funds were money laundering offense conduct. importing, exporting, or moving in derived, the count for the offense under Specifically, the Commission invites interstate commerce any plant pest or this guideline shall be grouped pursuant comment on whether and, if so, to what noxious weed, or knowingly forging any to subsection (c) of § 3D1.2 (Groups of extent, proposed § 2S1.1 should include permit authorizing movement of plant Closely-Related Counts) with the count an enhancement if: pests or noxious weeds. Referenced to for the underlying offense or, in the case (A) The offense involved concealment § 2N2.1 (Violations of Statutes and of a Group of counts for the underlying (coextensive with the meaning of the Regulations Dealing with Any Food, offense, with the most serious of the term under 18 U.S.C. 1956), even if the Drug, Biological Product, Device, counts comprising the Group, i.e., the conduct did not constitute sophisticated Cosmetic, or Agricultural Product). count resulting in the greatest offense concealment. 5 U.S.C. 6821—prohibits (A) level.’’. (B) If the defendant is convicted (A) obtaining or attempting to obtain The Commentary to § 2S1.3 captioned under 18 U.S.C. 1956(a)(1)(A)(ii); (B) customer information from a financial ‘‘Statutory Provisions’’ is amended by under 18 U.S.C. 1956(a)(1)(B)(ii); (C) institution by false statements, inserting ‘‘, 5326’’ after ‘‘5324’’. under 18 U.S.C. 1956(a)(2)(B)(ii); (D) representations, or documents; or (B) The Commentary to § 2T2.2 captioned under 18 U.S.C. 1956(a)(3)(C); or (E) of requesting another person to obtain ‘‘Statutory Provisions’’ is amended by attempting, aiding or abetting, or customer information knowing the inserting ‘‘18 U.S.C. 1960;’’ before ‘‘26 conspiracy to commit any of the information will be obtained under false U.S.C.’’; by striking ‘‘provided’’ and offenses referred to in subdivisions (A) pretenses. Referenced to § 2F1.1 (Fraud inserting ‘‘if’’; and by inserting ‘‘; 31 through (D). and Deceit). U.S.C. 5326’’ after ‘‘taxes’’. (C) If subsection (a)(1) applies and (1) 18 U.S.C. 38—prohibits falsifying any Appendix A (Statutory Index) is the defendant did not engage in an material fact, or making any fraudulent amended in the line referenced to ‘‘18 aggravated form of money laundering as representation concerning aircraft or U.S.C. 1957’’ by striking ‘‘2S1.2’’ and accounted for by subsection (b)(2), and space vehicle parts. Referenced to inserting ‘‘2S1.1’’; By inserting after the (2) the value of funds laundered § 2F1.1 (Fraud and Deceit). line referenced to ‘‘18 U.S.C. 1959’’ the exceeded $10,000. 18 U.S.C. 842(p)(2)—prohibits any following new line: (3) Whether application of subsection person to teach or demonstrate the ‘‘18 U.S.C. 1960 2T2.2’’; (b)(2)(A) (‘‘in the business of laundering making or use of an explosive, a B-Date: 01-24-01 10:11 striking ‘‘31 funds’’) should be expanded to include destructive device, or a weapon of mass U.S.C. 5322 2S1.3’’; and by inserting defendants (1) whose base offense level destruction, or distribute by any means after the line referenced to ‘‘31 U.S.C. is determined under subsection (a)(1) information pertaining to the 5324’’ the following new line: and (2) who launder criminally derived manufacture of an explosive, destructive ‘‘31 U.S.C. 5326 2S1.3, 2T2.2’’. funds generated by offenses which they device, or weapon of mass destruction The Commentary to § 1B1.3 captioned did not commit and are not otherwise with the intent that the teaching, ‘‘Application Notes’’ is amended in the accountable under § 1B1.3(a)(1)(A). demonstration, or information will be first and second paragraphs of Note 6, (4) Whether violations of 18 U.S.C. used for, or in furtherance of any federal by striking the second sentence in its 1960 (Illegal Money Transmitting crime of violence. Referenced to § 2K1.3 entirety, in each instance. Businesses) should be referenced to (Unlawful Receipts, Possession, or Section 3D1.2(d) is amended in the § 2S1.3 (Structuring Transactions to Transportation of Explosive Materials; second paragraph by striking ‘‘2S1.2,’’. Evade Reporting Requirements). Prohibited Transactions Involving Section 8C2.1(a) is amended by Explosive Materials) or § 2M6.1 striking ‘‘2S1.2,’’. Proposed Amendment: Miscellaneous (Unlawful Acquisition, Alteration, Use, The Commentary to § 8C2.4 captioned New Legislation and Technical Transfer, or Possession of Nuclear ‘‘Application Notes’’ is amended in Amendments Material, Weapons, or Facilities) (if the Note 5 by striking ‘‘; 2S1.1 (Laundering 21. Synopsis of Proposed information pertained to a weapon of of Monetary Instruments); and 2S1.2 Amendment: This is a two-part mass destruction). (Engaging in Monetary Transactions in proposed amendment. 42 U.S.C. 1011—knowingly and Property Derived from Specified First, the proposed amendment willfully making of any false statement Unlawful Activity)’’. addresses miscellaneous legislation or representation of a material fact in an The Commentary to § 8C2.4 captioned enacted during the 106th Congress by application for benefits established by ‘‘Background’’ is amended in the (1) adding to Appendix A (Statutory the Social Security Act. Referenced to seventh sentence by striking ‘‘and Index) and the statutory provisions of § 2F1.1 (Fraud and Deceit). money laundering’’. several guidelines references to new 49 U.S.C. 30170—prohibits violating Issues for Comment: The Commission statutes; and (2) providing commentary 18 U.S.C. 1001 with respect to the invites comment on the following: to § 2M3.9 that implements the new reporting requirements of 49 U.S.C. (1) Whether application of subsection consecutive sentencing requirement of 30166, with the specific intention of (a)(1) of proposed § 2S1.1 should be 50 U.S.C. 421 (pertaining to the misleading the Secretary of expanded to include defendants who disclosure of information identifying a Transportation regarding motor vehicle VerDate 11 or motor vehicle equipment safety Application Note 3 of the Commentary shall be imposed consecutively to any related defects that have caused death or to § 2J1.6 to improve the transition other term of imprisonment.’’. serious bodily injury to an individual. between the first and second The Commentary to § 2M6.1 Referenced to § 2F1.1 (Fraud and paragraphs; (2) adds a reference to 18 captioned ‘‘Statutory Provisions’’ is Deceit). U.S.C. 842(l)–(o) to the Commentary of amended by inserting ‘‘§ ’’ before 49 U.S.C. 46317(a)—prohibits (1) § 2K1.3; and (3) adds a reference to 7 ‘‘§ 831’’; by striking ‘‘where’’ and knowingly and willfully serving or U.S.C. 6810 to the Commentary of inserting ‘‘if’’; and by inserting ‘‘, attempting to serve as an airman § 2N2.1. (With respect to the latter two 842(p)(2)’’ after ‘‘ aforementioned operating an aircraft without an technical amendments, the statutory statutory provisions)’’. airman’s certificate; or (2) knowingly provision was listed in Appendix A The Commentary to § 2N2.1 captioned and willfully employing as an airman to (Statutory Index) but not in the ‘‘Statutory Provisions’’ is amended by operate an aircraft any individual who Commentary of the respective inserting ‘‘, 6810, 7734’’ after ‘‘150gg’’. does not have an airman’s certificate. guidelines.) Appendix A (Statutory Index) is Referenced to § 2F1.1 (Fraud and amended by inserting the following at Proposed Amendment Deceit). the appropriate place by title and 49 U.S.C. 46317(b) prohibits offenses The Commentary to § 2D1.1 captioned section: described in 49 U.S.C. 46317(a) that ‘‘Statutory Provisions’’ is amended by ‘‘7 U.S.C. 7734 2N2.1 relate to transporting a controlled inserting ‘‘; 49 U.S.C. § 46317(b)’’ after 15 U.S.C. 6821 2F1.1 substance by aircraft or aiding or ‘‘960(a), (b)’’. 18 U.S.C. 38 2F1.1 facilitating a controlled substance The Commentary to § 2F1.1 captioned 18 U.S.C. 842(p)(2) 2K1.3, 2M6.1 violation and that transporting, aiding, ‘‘Statutory Provisions’’ is amended by 42 U.S.C. 1011 2F1.1 or facilitating— inserting ‘‘, 6821’’ after ‘‘1644;’’; by 49 U.S.C. 30170 2F1.1 Is punishable by imprisonment of inserting ‘‘38,’’ after ‘‘18 U.S.C. §§ ’’; and 49 U.S.C. 46317(a) 2F1.1 more than one year under Federal or by inserting ‘‘; 42 U.S.C. 1011; 49 U.S.C. 49 U.S.C. 46317(b) 2D1.1’’. State law; or 30170, 46317(a)’’ after ‘‘2315’’. The Commentary to § 2J1.6 captioned Is related to a Federal or state ‘‘Application Notes’’ is amended in the controlled substance law (except simple The Commentary to § 2K1.3 captioned first sentence of the second paragraph of possession) punishable by ‘‘Statutory Provisions’’ is amended by Note 3 by striking ‘‘In’’ and inserting imprisonment of more than one year. inserting ‘‘(l)–(o), (p)(2), after ‘‘(i),’’. ‘‘However, in’’; and by inserting ‘‘other Referenced to § 2D1.1 (Unlawful The Commentary to § 2M3.9 than a case of failure to appear for Manufacturing, Importing, Exporting, or captioned ‘‘Application Notes’’ is service of sentence,’’ after ‘‘and the Trafficking). amended by inserting after Note 2 the failure to appear,’’. Second, the proposed amendment following: makes technical and conforming ‘‘3. A term of imprisonment imposed [FR Doc. 01–1505 Filed 1–25–01; 8:45 am] changes as follows: (1) Modifies for a conviction under 50 U.S.C. § 421 BILLING CODE 2211–01–U VerDate 11 Part III Security and Exchange Commission Self-Regulatory Organizations; Order Approving Proposed Rule Changes by the National Association of Securities Dealers, Inc.; Notice VerDate 11 SECURITIES AND EXCHANGE 4. UTP Exchange Priority Amendment No. 4 to the proposal,6 COMMISSION 5. Five-Second Interval Delay which was published for comment in E. Directed Orders the Federal Register on March 30, [Release No. 34–43863; File No. SR–NASD– F. Locked/Crossed Markets 2000.7 On May 19, 2000, Nasdaq filed 99–53] G. UTP Exchange Participation as 8 Automatic Execution Participants Amendment No. 5 to the proposal; on Self-Regulatory Organizations; Order H. Odd-Lot Processing June 7, 2000, Nasdaq filed Amendment Approving Proposed Rule Changes by I. Issues Relating to Competition No. 6;9 and on August 8, 2000, Nasdaq the National Association of Securities 1. Centralization filed Amendment No. 7.10 Amendment Dealers, Inc. and Amendment Nos. 1, 2, 2. Other Issues Relating to Competition Nos. 5, 6 and 7 were published for 3. Nasdaq as an Exclusive Securities comment on August 15, 2000.11 On 3, 4, 5, 6, 7 and 8 Thereto and Notice Information Processor of Filing and Order Granting October 23, 2000, the NASD filed 4. Commission’s Conclusion on Amendment No. 8,12 which was Accelerated Approval of Amendment Competition Issues No. 9 Relating to the Establishment of J. Technology Issues the Nasdaq Order Display Facility and K. Impact on Competition, Efficiency and 6 See letter from Richard G. Ketchum, President, Capital Formation NASD, to Belinda Blaine, Associate Director, Order Collector Facility and Division, Commission, dated March 23, 2000 Modifications of the Nasdaq Trading VI. Amendment No. 9 (‘‘Amendment No. 4’’). Among other things, in Platform VII. Solicitation of Comments Amendment No. 4, the following aspects of the VIII. Conclusion proposal were changed: (1) the order execution January 19, 2001. priorities of the system as they apply to electronic I. Introduction communications networks (‘‘ECNs’’), reserve size orders, and unlisted trading privilege exchanges Table of Contents On October 1, 1999, the National (‘‘UTP Exchanges’’); (2) the five-second delay I. Introduction Association of Securities Dealers, Inc. between price levels; and (3) the way odd-lots are II. Executive Summary (‘‘NASD’’ or ‘‘Association’’), through its processed. 7 A. Background of the Nasdaq System wholly-owned subsidiary, the Nasdaq See Securities Exchange Act Release No. 42573 B. Overview of the SuperMontage Proposal (March 23, 2000), 65 FR 16981 (March 30, 2000). Stock Market, Inc. (‘‘Nasdaq’’), filed 8 See letter from Richard G. Ketchum, President, 1. Quote/Order Collection with the Securities and Exchange 2. Display of Quotes/Orders NASD, to Belinda Blaine, Associate Director, Division, Commission, dated May 16, 2000 3. Execution Services Commission (‘‘SEC’’ or ‘‘Commission’’), pursuant to Section 19(b)(1) of the (‘‘Amendment No. 5’’). Among other things, in C. Summary of Conclusions Amendment No. 5, the NASD responded to 1. Execution Procedures and Quote/Order Securities Exchange Act of 1934 (‘‘Act’’ comment letters received by the Commission in Priority or ‘‘Exchange Act’’),1 and Rule 19b–4 response to Amendment No. 4, submitted technical 2. Inherent Conflicts of NASD Roles thereunder,2 proposed rule changes to amendments to the proposed rule language, and III. Description of the Proposal establish the Nasdaq Order Display provided a description of how the proposal would A. Nasdaq Order Display Facility be implemented. Facility (‘‘NODF’’) and the Order 9 See letter from Richard G. Ketchum, President, 1. Enhanced Display of Trading Interest Collector Facility (‘‘OCF’’) and to 2. Size MMID and Summary Scan NASD, to Belinda Blaine, Associate Director, modify its primary trading platform, the Division, Commission, dated July 6, 2000 3. Reserve Size Nasdaq National Market System (‘‘Amendment No. 6’’). Generally, in Amendment B. Order Collector Facility No. 6, the NASD stated that it intends to implement 1. Entry of Quotes/Orders (‘‘NNMS’’), collectively referred to as the SuperMontage only after the planned 2. Order Execution and Delivery the SuperMontage proposal. On October conversion to decimals takes place. It also C. Non-Directed Orders 26 and October 29, 1999, respectively, confirmed that it will allow market participants 1. Quote Decrementation of Non-Directed Nasdaq filed Amendment Nos. 1 and 2 ample opportunity to prepare and test their internal Orders to the proposal.3 The SuperMontage systems before the start-up of the SuperMontage. 2. Quote Refresh and Revised SOESed-Out- The NASD further amended the SuperMontage proposal and Amendment Nos. 1 and 2 proposal to provide reciprocity for UTP Exchanges of-the Box Procedures were published for comment in the that provide automatic executions against their D. Order Execution Algorithms Federal Register on December 6, 1999.4 quotes/orders. Also, the NASD clarified the order E. Directed Orders routing process and quote update feature for UTP F. Locked/Crossed Markets On March 16, 2000, Nasdaq filed Exchanges that take order delivery. 5 G. UTP Exchange Participation Amendment No. 3 to the proposal. On 10 See letter from Richard G. Ketchum, President, H. ECN Participation March 23, 2000, Nasdaq filed NASD, to Annette Nazareth, Director, Division, I. Odd-Lot Processing Commission, dated August 7, 2000 (‘‘Amendment No. 7’’). Among other things, in Amendment No. 7, J. Nasdaq SmallCap 1 15 U.S.C. 78s(b)(1). the NASD responded to comment letters sent to the K. System Roll Out 2 17 CFR 240.19b–4. Commission by Bloomberg Tradebook, LLC and IV. Summary of Comments 3 See letters from Thomas P. Moran, Assistant Instinet Corporation. As discussed below, the General Counsel, Office of the General Counsel, V. Discussion NASD amended the Order Execution Algorithm to Nasdaq, to Richard Strasser, Assistant Director, provide that Nasdaq will rank orders from ECNs A. Nasdaq Order Display Facility Division of Market Regulation (‘‘Division’’), that charge a separate access fee on parity with 1. Non-Attributable Quotes and Other Commission, dated October 26, 1999 (‘‘Amendment orders from market makers and ECNs that do not Factors No. 1’’); and from John F. Malitzis, Assistant charge a separate fee if the ECN notifies the NASD 2. Reserve Size General Counsel, Office of the General Counsel, that the order offers price improvement that Nasdaq, to Richard Strasser, Assistant Director, B. Order Collector Facility exceeds the access fee. Also, Nasdaq revised the Division, Commission, dated October 29, 1999 directed order processing rules so that ECNs and 1. Order Entry and Access (‘‘Amendment No. 2’’). market makers can elect to receive Liability Orders 2. Non-Marketable Limit Orders 4 See Securities Exchange Act Release No. 42166 through the directed order process of the system. C. Quote Refresh and Revised SOESed-Out- (November 22, 1999), 64 FR 68125 (December 6, 11 See Securities Exchange Act Release No. 43133 of-the-Box Procedures 1999) (‘‘December 6, 1999 notice’’). (August 10, 2000), 65 FR 49842 (August 15, 2000). D. Order Execution Algorithms 5 See letter from Richard G. Ketchum, President, 12 See letter from Richard G. Ketchum, President, 1. Matching Against a Participant’s Own NASD, to Belinda Blaine, Associate Director, Nasdaq, to Belinda Blaine, Associate Director, Quote/Order at the BBO Division, Commission, dated March 15, 2000 Division, Commission, dated October 20, 2000 2. Preferenced Orders (‘‘Amendment No. 3’’). In Amendment No. 3, the (‘‘Amendment No. 8’’). Generally, in Amendment 3. ECNs NASD responded to comment letters and submitted No. 8, the NASD revised its Order Execution substantive, clarifying, and technical amendments Algorithm to allow market participants that enter a. Order Execution Algorithms to the proposal. Other than the response to the non-directed orders to interact with quotes/orders b. Time Restrictions on the Order Delivery comment letters, Amendment No. 3 was repeated in in the SuperMontage based on price/time priority, Feature Amendment No. 4, which was published for price/size/time priority, and price/time priority c. ECN’s Automatic Execution Function comment in the Federal Register. taking into account ECN access fees; created a new VerDate 11 published for comment on November Quoting Market Participant’s or UTP Nasdaq’s SOES and SelectNet systems 15, 2000.13 On January 9, 2001, the Exchange’s proprietary trading interest supplement the separate order NASD filed Amendment No. 9.14 The or customer limit orders handled by that execution services offered by market Commission received 104 comments participant, or both.18 The quotations of makers, ECNs, and UTP Exchanges, but regarding the proposal.15 The Nasdaq Quoting Market Participants and do not supplant those services. In fact, Commission is approving the UTP Exchanges are displayed on a the large majority of orders are executed SuperMontage proposal, as amended, quotation montage (arranged by price outside Nasdaq’s order delivery and and is soliciting comments on and time) that can be viewed on a execution services through direct Amendment No. 9 from interested Nasdaq screen, and are disseminated to links—by telephone, dedicated line, or persons.16 vendors for further redistribution to other means—among order entry firms, II. Executive Summary broker-dealers and other subscribers. market makers, ECNs, and UTP Other Nasdaq systems facilitate a Exchanges. A. Background of the Nasdaq System Nasdaq participant’s ability to interact In recent years, changes in technology The Nasdaq System originated 30 with the quotations of Nasdaq Quoting and market structure have placed years ago for the purpose of collecting Market Participants and UTP increasing demands on, and created and displaying quotations posted by Exchanges. In 1984, Nasdaq introduced new challenges for, Nasdaq’s systems. individual dealers in the over-the- the Small Order Execution System For example, while Nasdaq’s existing counter market regulated by the NASD, (‘‘SOES’’), which allows Nasdaq quotation management system displays which sponsored the system. Nasdaq’s participants to execute small orders the best bid and offer of a Nasdaq quotation management system currently automatically against the quotation of a Quoting Market Participant or UTP collects and displays quotations of market maker at the best bid or offer Exchange, many market participants are registered market makers and ECNs that (‘‘BBO’’).19 Nasdaq’s SelectNet system, interested in seeing more of a Nasdaq are members of the NASD (collectively, introduced in 1988, allows Nasdaq Quoting Market Participant’s or UTP ‘‘Nasdaq Quoting Market Participants’’). participants to route orders to a Exchange’s trading interest outside its By agreement, Nasdaq also collects and particular market maker or ECN.20 best bid and offer. In addition, the entry displays quotations in Nasdaq securities Although SelectNet is an order delivery of ECNs and UTP Exchanges trading from UTP Exchanges.17 service, rather than an execution Nasdaq securities has increased The existing quotation management service, a SelectNet order presented to competition among execution service system permits each Nasdaq Quoting a market maker or ECN at its displayed providers, including Nasdaq. Market Participant and UTP Exchange quotation obligates the market maker or The changing competitive to enter a single quotation into the ECN to execute the order at the price environment has been accompanied by system at any one time. This single and size of its quote consistent with the changes in Nasdaq’s structure and 21 quotation may reflect the Nasdaq Commission’s Firm Quote Rule. The ownership. The NASD’s ownership of SOES and SelectNet systems currently Nasdaq was reduced to 60% on a fully class of orders called preferenced orders; created a are not integrated, so that it is possible new data vendor data feed called NQDS Prime; diluted basis by a private placement sale clarified that SuperMontage will identify parties for a market maker to receive a of shares and warrants on June 28, 2000 enering orders; modified the time priority feature to SelectNet order that it is obligated to and was further reduced to 40.6% by a preserve time priority when quotes are increased in execute and a SOES execution against second private placement just size; modified the response time frames for order- the same quote, creating a double completed. The warrants are exercisable delivery ECNs and UTP Exchanges; modified the 22 SuperMontage so that all non-directed orders liability exposure. over a four year period beginning June entered by order-entry firms are designated as 28, 2002. Under the terms of the sale, ‘‘immediate or cancel’’ orders; and revised the 18 NASD Rule 4613 requires a registered market the voting rights for NASD shares definition of agency orders for UTP Exchanges. maker to submit a two-sided quote (both bid and Amendment No. 8 also contained a summary, offer) that represents its proprietary trading interest underlying warrants will shift to the Exhibit 3, that incorporated and reconciled the and/or customer limit orders handled by the market warrant holders upon registration of original rule proposal and the subsequent proposed maker. NASD Rule 4623 requires an ECN to submit Nasdaq as an exchange. Nasdaq filed an amendments. the prices and sizes of orders at the highest buy application for registration with the 13 See Securities Exchange Act Release No. 43514 price and lowest sell price entered into the ECN by 23 (November 3, 2000), 65 FR 69084 (November 15, market makers (and, in some cases, other Commission on November 9, 2000. 2000). subscribers). By agreement, UTP Exchanges must Subsequently, the NASD Board 14 See letter from Richard G. Ketchup, President, submit a two-sided quote that represents their adopted a resolution stating its intent to Nasdaq, to Robert L.D. Colby, Deputy Director, market’s best quote. divest itself of all remaining shares of Division, Commission, dated January 8, 2001 19 SOES was initially approved on a temporary (‘‘Amendment No. 9’’). In Amendment No. 9, the basis in Securities Exchange Act Release No. 21567 Nasdaq not subject to outstanding NASD withdrew Alternative A, regarding (December 14, 1984), 50 FR 1662 (December 27, warrants by June 30, 2002, subject to preferenced orders with no price restrictions, made 1984). It was granted permanent approval in 1985. existing contractual and legal a technical correction to its rule text to conform the See Securities Exchange Act Release No. 21743 arrangements and to the reasonable definition of a preferenced order with the rule text (February 12, 1985), 50 FR 7432 (February 22, describing the processing of such orders, and 1985). judgment of NASD management that 23 represented that Nasdaq will not use data received 20 See Securities Exchange Act Release No. 25263 market conditions permit. The NASD through the Order Audit Trail System (‘‘OATS’’) to (January 11, 1988), 53 FR 1430 (January 19, 1988). also has undertaken that during any gain an unfair competitive advantage over other See also Securities Exchange Act Release No. 25690 interim period it intends to vote its market participants, including another self- (May 11, 1988), 53 FR 17523 (May 17, 1988) (order regulatory organization (‘‘SRO’’) or broker/dealer granting permanent approval of SelectNet). shares in Nasdaq on any matter in (market maker or ECN). 21 See Exchange Act Rule 11Ac1–1, 17 CFR 15 A summary of the comment letters received by 240.11Ac1–1. 23 The Commission intends to give expeditious the Commission is available for public inspection 22 On January 14, 2000, the Commission approved consideration to Nasdaq’s application for in the Commission’s Public Reference Room. an NASD rule change that allows Nasdaq to registration and to similar applications from other 16 In addition, the Commission notes that the integrate the two systems to prevent most double markets, consistent with statutory requirements, in NASD withdrew a proposed rule change relating to liability situations. To date, the NASD has not order to further competition and innovation among an Integrated Order Delivery and Execution System implemented this change. See Securities Exchange securities markets. (‘‘IODES’’) on March 16, 2000 (SR–NASD–98–17). Act Release No. 42344 (January 14, 2000), 65 FR 24 See letter from Joan C. Conley, Corporate 17 As of the date of this Order, the Chicago Stock 3987 (January 14, 2000), 65 FR 3987 (January 25, Secretary, NASD, to Robert Colby, Deputy Director, Exchange (‘‘CHX’’) is the only active UTP Exchange. 2000) (‘‘NNMS Order’’). Division, dated January 18, 2001. VerDate 11 proportion to the votes of all other maintaining the separate identity, price, Participant or UTP Exchange. As in shareholders. and time of entry of each quote/order. SelectNet, a directed order can match a The Commission has considered the Alternatively, a Nasdaq Quoting Market posted quote/order of the recipient (a SuperMontage proposal in the context Participant or UTP Exchange may Liability Order) or not match any quote/ of increased demand for information choose to maintain only its required order of the recipient (a non-Liability about trading interest, increasing quotation, and not enter additional Order).26 To avoid creating a risk of competition among execution service quotes/orders. double liability, no Nasdaq Quoting Market Participant or UTP Exchange is providers, and changes in Nasdaq’s 2. Display of Quotes/Orders ownership structure. The Exchange Act required to receive directed Liability requires the Commission to approve the To the extent Nasdaq Quoting Market Orders through the OCF, but may elect proposed rule changes if it finds that the Participants and UTP Exchanges use the to do so. changes are consistent with the quote/order collection system to The non-directed order process will requirements of the Exchange Act represent more quotes and orders than be the default execution process for applicable to the NASD. they currently are able to represent, marketable orders entered by a Nasdaq In this context, including Nasdaq’s SuperMontage will show more participant into Nasdaq’s order demutualization, application for information than the current quotation collection facility. A marketable order registration as an exchange, and montage. SuperMontage will display the entered into the non-directed order impending full separation of the NASD additional information in two ways. process will be matched with the and Nasdaq, and for the reasons First, the best-priced non-attributable highest ranked quotes/orders of Nasdaq discussed in this release, the quotes/orders from all participants will Quoting Market Participants and UTP Commission finds that the proposed be aggregated and displayed in the Exchanges on the opposite side of the rule changes are consistent with the quotation montage as one buy and one market, and either will be executed requirements of the Exchange Act sell price, each under the generic name automatically or delivered (on a liability applicable to the NASD and therefore ‘‘SIZE’’, along with the best-priced basis) to the matched Nasdaq Quoting approves the proposed rule changes. attributable quotes/orders of each Participants and UTP Exchanges, Nasdaq Quoting Market Participant and depending upon how such participants B. Overview of the SuperMontage UTP Exchange. Second, and more participate in the non-directed order Proposal significantly, SuperMontage will process.27 The SuperMontage proposal is aggregate all quotes/orders (attributable The ranking of Nasdaq Quoting designed to modify Nasdaq’s systems in and non-attributable) at each price level, Market Participant and UTP Exchange three principal areas: (1) Quote/order and display the three best prices with quotes/orders in the non-directed order collection; (2) quote/order display; and associated aggregate size on each side of process will be established pursuant to (3) execution services. the market through the NODF. This one of three order execution algorithms: information will be distributed to price/time priority, price/size/time 1. Quote/Order Collection market data vendors so that they can priority, or price/time priority that SuperMontage will partially eliminate provide an equivalent display service to account for ECN fees. The Nasdaq the distinction between quotes and their customers. In addition, the NASD participant entering a non-directed orders and expand the ability of Nasdaq will make available to market data order may select the algorithm used for Quoting Market Participants and UTP vendors individual attributable quotes/ executing its order, but the system will Exchanges to represent quotes/orders in orders displayed in the three best price default to the price/time priority the Nasdaq market. It will permit, but levels in the NODF. algorithm if none is selected. Within not require, Nasdaq Quoting Market Thus, to the extent Nasdaq Quoting each algorithm, a non-directed order Participants and UTP Exchanges to Market Participants and UTP Exchanges entered by a Nasdaq participant that is enter multiple quotes/orders at the same voluntarily enter their ‘‘near the also a Nasdaq Quoting Market price or at different prices.25 In market’’ quotes/orders, investors and Participant will be matched first against addition, SuperMontage will allow market professionals will be able to see its own quote/order on the other side of Nasdaq Quoting Market Participants to the aggregate of this interest at three the market, provided that its quote/ enter quotes/orders on a non- price levels in widely available order is at the BBO. In addition, a attributable basis (i.e., anonymously), displays. Nasdaq participant entering a non- directed order will be permitted to although market makers will be 3. Execution Services obligated to maintain a two-sided ‘‘preference’’ the order to a particular attributable quote/order consistent with SuperMontage will replace Nasdaq’s Nasdaq Quoting Market Participant or Commission and NASD rules. UTP current SOES and SelectNet services UTP Exchange, if that participant’s Exchanges will not be permitted to enter with two new processes: a directed quote/order is at the BBO. principal quotes on a non-attributable order process and a non-directed order Nasdaq participants are not required basis, but may enter agency quotes/ process. Nasdaq participants that wish to use either the directed or non- orders on a non-attributable basis. to use either of these processes to directed order processes to execute their For Nasdaq Quoting Market interact with the quotes/orders of orders but may choose, instead, Participants and UTP Exchanges that Nasdaq Quoting Market Participants and systematically or on an order-by-order choose to enter multiple quotes/orders, UTP Exchanges may enter orders into basis, to continue to use other methods SuperMontage will aggregate their best- the same order collection facility used such as telephone access or direct priced attributable quotes/orders on by Nasdaq Quoting Market Participants connections to market makers, ECNs, each side of the market to create the and UTP Exchanges to enter quotes/ Nasdaq Quoting Market Participant’s or orders. 26 Non-liability orders are usually used to probe The directed order process will be for undisplayed interest or to begin a negotiation. UTP Exchange’s displayed quote, while functionally similar to the current 27 Registered market makers must accept automatic executions (a sthey do currently under 25 UTP Exchanges may only enter a single SelectNet service in that it will allow a SOES). UTP Exchanges and ECNs may elect to principal quote/order. See Proposed NASD Rule Nasdaq participant to direct an order to accept automatic executions or delivery of the 4710(f). a particular Nasdaq Quoting Market order. VerDate 11 and UTP Exchanges. Any Nasdaq concerning the conflicts inherent in to certain ECNs that had wanted the member is free to offer a competing NASD’s multiple roles as SRO and execution process to ignore access fees. execution service, and may even use the default regulator for the OTC market, Moreover, the new approach embodied Nasdaq service as one of its options. and as the principal owner of Nasdaq, in Amendment No. 8 brought new which will be the operator of C. Summary Conclusions objections from some commenters that it SuperMontage. These issues have been would be a step backward in achieving The SuperMontage proposal carefully weighed by the Commission price/time priority that would generated significant controversy. and are described individually and in encourage price competition. Throughout a series of comment periods detail in the Discussion section below. The Commission believes that the and revisions, commenters maintained A more general description and competing interests of Nasdaq that various aspects of the proposal overview of the Commission’s analysis participants with respect to some of the were unfair or anti-competitive, and that and reasoning follow: the proposal as a whole fell short of the issues of priority are essentially standards that ought to be required of 1. Execution Procedures and Quote/ irreconcilable. For example, there is no National Market System facilities. Order Priority way to simultaneously satisfy both those Many issues were resolved through Following Amendment No. 7, the ECNs that want their orders executed the process of public comment and proposed execution procedures and fees assessed when their orders response. For example, under the involved a single execution algorithm have time priority at the displayed original proposal Nasdaq Quoting for non-directed orders (without any price, and other participants that want Market Participants would have preferencing), and the directed order to avoid paying such fees when they can transmitted to Nasdaq multiple quotes/ process. Preferencing through the non- receive a better net price from other orders at the same price or at different directed order process had not yet been orders that do not have time priority. prices, and Nasdaq would have proposed. The single execution The Commission recognizes that there is aggregated the best priced orders on algorithm applicable to non-directed merit to both sides of the discussion, but either side of the market to produce the orders was based on price/time priority, it believes that price priority ordinarily participant’s required quotation, which but gave lower priority to quotes/orders must take precedence over time priority. would then be distributed by Nasdaq, in of an ECN that charges a separate fee for Because a quote that involves payment its capacity as an exclusive processor for accessing its quotes/orders, and last of a separate fee is, all other things the OTC market. priority to the principal quotes of UTP equal, inferior to a quote at the same In addition, Nasdaq would have Exchange specialists.28 Some ECNs and displayed price that does not involve distributed the aggregate amount of others objected to the treatment of payment of a fee, the Commission buying and selling interest at the three quotes/orders involving payment of a believes that it is reasonable to allow best price levels on either side of the separate fee, arguing among other things market participants to choose a method market. Some commenters objected that that many market participants preferred of execution that gives lower priority to the proposal in this form meant that to deal with ECNs, even if they charged quotes that require payment of a fee. It Nasdaq alone would know the details of fees, because statistically the price is true that price improvement may any quotes/orders not incorporated into improvement provided by certain ECNs sometimes exceed the value of the participant quotations, and that it would exceeded the cost of their fees. Some required fee, but the fee is certain while be unfair for Nasdaq to keep such also maintained that only displayed price improvement is uncertain. The information to itself. In response, prices should be considered in assigning Commission believes that market Nasdaq agreed to disseminate the details priority because any associated fees participants are best able to exercise of all attributable quotes/orders in the would be paid by brokers and not by judgment in such cases. three best price levels on either side of customers. Still others argued that The Commission shares the view the market via a new information Nasdaq should not assign any priorities expressed by some commenters that service, in addition to the aggregate to quotes/orders but should only price/time priority tends to encourage amounts of interest at those prices. The provide a means to access displayed price competition. The Commission result will be that all quote/order details quotes and leave the choice of priorities notes, however, that although price will be generally available at the best to participants. priority is generally followed in the price levels, except those quotes/orders In response to these arguments and Nasdaq market, there is at present that are submitted on an anonymous others, the NASD in Amendment No. 8 virtually no time priority across market basis (non-attributable quotes/orders). proposed to offer participants much centers. The proposal, in its present The Commission believes that this greater control of the execution process form, provides for more time priority additional information will be valuable by creating two additional execution than currently exists in the market, and to competitors that may offer execution algorithms using price/time and price/ may to that extent encourage more price services complementary to, or in size/time priorities respectively, competition. Moreover, for the reasons competition with, Nasdaq’s ignoring any separate fees, and by outlined above, a displayed price does SuperMontage services, and that creating the ability to send preferenced not always represent the actual price to Nasdaq’s proposal appropriately orders to any Nasdaq Quoting Market a participant and, indeed, the actual resolves the issue. Several other issues Participant or UTP Exchange at the price is often not the same for all have been dealt with in similar fashion. discretion of the entering firm. This participants that might execute against a response was satisfactory to some earlier All of these are described at length in particular quote.29 The Commission commenters that had sought greater the Discussion section below. does not believe that it is appropriate to The remaining issues, which remain control of the execution process, but not require strict time priority based on controversial, generally fall in two such prices. groups: (1) Disagreements about the 28 ECNs that charge fees were permitted to appropriate priority and protections indicate on any individual quote/order that the quote/order would provide price improvement 29 Several ECNs have variable access fees that are afforded to quotes/orders represented in exceeding the applicable fee, and such quote/orders differnt for subscribers and non-subscribers, and SuperMontage under the applicable would be given parity with quotes/orders that did may depend on other factors, such as the volume execution procedures, and (2) questions not require payment of a separate fee. of business. VerDate 11 For these reasons, the Commission facility will permit NASD members to economically efficient executions to finds that the combination of choices comply with their obligations under investors within a fair and orderly offered in the current proposal is both Commission and NASD rules (including market. fair to participants and reasonably Rule 11Ac1–1(c)(5) and Regulation Some commenters argued that designed to promote competition. ATS) without participating in the Nasdaq’s role as the exclusive processor 2. Inherent Conflicts of NASD Roles Nasdaq execution facility. The facility of information for Nasdaq-listed will identify through the central securities will give SuperMontage an Many commenters raised issues that processor the identity of the NASD relate in one way or another to the unfair advantage. On close examination, member that is the source of each these criticisms pertained less to the multiple roles that the NASD has as an quote.32 The facility also will provide a SRO and, through Nasdaq, as an operation of SuperMontage than to the market neutral linkage to the Nasdaq requirement that market makers and exclusive processor of market and other marketplaces, but not an information and as an operator of ECNs quote through Nasdaq, as the sole execution service. NASD represents that consolidator of market data for Nasdaq trading facilities. The Commission notes the facility will be available upon the that conflicting roles are inherent in the securities. To address this issue, the implementation of SuperMontage by NASD has agreed to provide an self-regulatory model. Indeed, the Act Nasdaq. The Commission believes that alternative quote and trade reporting specifically recognizes that SROs will this undertaking by NASD, in mechanism, while Nasdaq has said that act not only as regulators, but also as conjunction with other terms applicable it is willing to confer with the other operators of markets, and exclusive to the NASD’s interaction with the markets about establishing a separate processors of information derived from SuperMontage,33 provides an central processor for information on those markets. The Act authorizes the appropriate balance of NASD’s role as Nasdaq securities under the UTP Plan.35 Commission to oversee SRO functions regulator of the OTC market and its role Nevertheless, the Commission believes to address the inherent conflicts, and to (through Nasdaq) as operator of an that the current UTP plan must be ensure, among other things, that SROs execution service in a competitive 30 revised to provide for a fair competitive do not abuse their regulatory powers, market. and when acting as exclusive environment in the future for all market Some commenters also argued that 36 processors, make available market automatic execution against market centers trading in Nasdaq securities. information in a non-discriminatory, makers would give the SuperMontage The Commission believes that these fair, and reasonable fashion. Thus, the an unfair advantage in attracting order undertakings, which are discussed in Commission’s role is to reach a fair and flow, and make it difficult for others to detail below, appropriately address the appropriate balance of the conflicts offer competitive execution services. It concerns about an advantage to Nasdaq inherent in the SRO structure, not to appears that inherent in this argument arising from its role as the exclusive eliminate those conflicts. is the view that Nasdaq should not be processor for Nasdaq securities. Prior to Amendment No. 8, many permitted to require its registered Finally, the Commission believes that objections were raised that market makers to accept automatic Nasdaq, as well as the traditional SuperMontage, as then proposed, would executions, or that Nasdaq should not exchanges, must have the flexibility to become a centralized, monopolistic be permitted to operate a market itself, alter their existing services and to create execution system. The gist of these but should be restricted to providing new services in response to changes in arguments was that because NASD is connections among market makers and the marketplace. Congress instructed the the default regulator for the OTC ECNs. Although the Commission is Commission to seek to ‘‘enhance 31 market, any market maker or ECN that sensitive to the need to ensure that competition and to allow economic wished to do business in Nasdaq competition is fair, it cannot accept the forces, interacting with a fair regulatory securities must make its quotes view that Nasdaq should not be allowed field, to arrive at appropriate variation available for execution through to operate a market in which its in practices and services.’’37 The SuperMontage. Thus, SuperMontage registered market makers are required to Commission believes that the would be, by the effect of NASD and accept automatic executions, SuperMontage proposal is consistent Commission rules, the only execution particularly when participation in that with these goals. system through which substantially all market is voluntary. The Commission displayed trading interest could be notes that compulsory automatic III. Description of the Proposal reached. The only exception would executions have been a feature of the The SuperMontage proposal will have been any UTP Exchanges that Nasdaq market since at least 1988.34 The chose not to participate in enhance Nasdaq’s quotation montage by ‘‘SuperSOES’’ proposal approved in adding a new display facility for trading SuperMontage. January 2000 further expanded the In response to these concerns, the interest, the NODF, and establishing a scope of automatic execution against NASD has agreed to provide an new system for collecting quotes/orders, market maker quotes. The Commission alternative quotation and transaction the OCF. This proposal also will modify therefore finds that the requirement that reporting facility for NASD members, Nasdaq’s primary trading platform, the registered market makers in Nasdaq including alternative trading systems accept automatic executions against (‘‘ATSs’’), ECNs, and market makers. In 35 See letter from Frank Zarb, Chairman and CEO, their published quotes is not a new effect, this facility makes participation Nasdaq, to Senator Phil Gramm, dated October 24, feature of the SuperMontage and that it 2000. in SuperMontage voluntary. This remains an appropriate feature of a 36 The UTP Plan is the Joint Self-Regulatory system designed to provide Organization Plan Governing the Collection, 30 See discussion at Sectio V.I.2, infra, regarding Consolidation and Dissemination of Quotation and limitations on the NASD’s ability to use its Transaction Information for Exchange-Listed regulatory authority to preference or prejudice 32 See Rule 11Ac1–1(b)(1)(iii); 17 CFR Nasdaq/National Market System Securities Traded another market or market participants. 240.11Ac1–1(b)(1)(iii). on Exchanges on an Unlisted Trading Privileges 31 Any broker-dealer that does business with the 33 See discussion at Sections V.I.2 and 3, infra. Basis. See also, discussion at Section V.I.3, infra, public and is not a member of a registered national 34 SOES was initially developed in 1984, and regarding the need to revise the UTP Plan. seucrities exchange must be a member of the NASD. market maker participation was made mandatory in 37 See S. Rep. No. 94–75, 94th Cong., 1st Sess. 7 See 15 U.S.C. 78o(b)(8). 1988. (1975) at p. 8. (‘‘Senate Report’’). VerDate 11 NNMS, as approved on January 14, displays market maker, ECN and UTP however, be displayed in the Nasdaq 2000.38 Exchange attributable quotes ranked in Quotation Montage next to the Nasdaq price/time priority. Nasdaq proposes to Quoting Market Participant’s or UTP A. Nasdaq Order Display Facility add the NODF, which will be displayed Exchange’s MMID but instead may be Today, the Nasdaq screen, commonly in the top portion of the NWII. The displayed in a special ‘‘SIZE MMID,’’ referred to as the Nasdaq Workstation II NODF will display the three best price which is described in greater detail (‘‘NWII’’), is split into two primary levels in Nasdaq on both the bid and below, representing the aggregate size of display components. The top portion of offer side of the market. These displayed the best priced non-attributable bids or the NWII contains, among other things: price levels will include, for the first offers. Pursuant to NASD Rule 4613, (1) the Market Minder Window, which time in the Nasdaq market, anonymous market makers will continue to be allows market participants to monitor (or non-attributable) quotes/orders in required to publish a two-sided quote price activity (inside bid/offer and last addition to the attributable quotes/ that is attributed to their MMID in the sale) of selected stocks; and (2) the orders of market makers, ECNs, and Nasdaq Quotation Montage. Dynamic Quote Window, which shows UTP Exchanges. Each price level will be 2. SIZE MMID and Summary Scan for a particular stock the inside bid and updated and will display the aggregate offer, the last sale, change in price from size of displayed trading interest A SIZE MMID, representing the previous close, daily high and low, (attributable and non-attributable, as aggregate displayed size of the best- volume, and the short sale arrow explained below). In addition to priced non-attributable bids or offers, indicator. The bottom portion of the displaying the aggregate size of will be shown in the Nasdaq Quotation NWII contains the Nasdaq Quotation displayed trading interest at the three Montage along with the other MMIDs Montage. The Nasdaq Quotation best price levels, Nasdaq will create and for the Nasdaq Quoting Market Montage shows for a particular stock make available a new vendor data feed Participants and UTP Exchanges two columns (one for bids, one for called NQDS Prime. NQDS Prime will displaying attributable size. The bid offers), under which is listed the market provide, on a real-time basis, all side and the offer side of the market maker identification (‘‘MMID’’) for each individual attributable quote/order each will have one SIZE MMID.44 registered market maker, ECN, and UTP information at the three best price levels The SuperMontage also will include a Exchange in the stock, and the displayed in the NODF.41 ‘‘Summary Scan’’ function. The corresponding quote (price and size). Nasdaq Quoting Market Participants Summary Scan will be a query-only Nasdaq ranks the bids and offers along will be required to designate a quote/ function that will provide a snapshot of with the corresponding MMID in price/ order as attributable or non- the total displayed size (attributable and time priority. Accordingly, the market attributable 42 and will be able to non-attributable) for all levels below the participant at the best bid who is first indicate a reserve size for the quote/ three price levels in the NODF. The in time appears first in the montage, the order.43 If a quote/order is designated as Summary Scan will anonymously market participant at the best bid (or the attributable, the price and size of the display the aggregate interest next best bid) who is next in time is quote/order will be displayed next to (attributable and non-attributable) at ranked second, and so on. the Nasdaq Quoting Market Participant each price level on both sides of the Market makers that choose to or UTP Exchange’s MMID in the Nasdaq market, but will not be dynamically participate in Nasdaq are required to Quotation Montage if it is the Nasdaq updated. submit a two-sided principal quote,39 Quoting Market Participant or UTP which may reflect customer limit orders 3. Reserve Size Exchange’s best-priced attributable held by the market maker. ECNs, to Nasdaq Quoting Market Participants qualify under the Order Handling Rules, quote/order. Attributable quotes/orders will be displayed in the NODF as part will be able to use reserve size. must submit the prices and sizes of According to the NASD, reserve size orders at the highest buy price and of the aggregate trading interest when the price of the quote/order is within will work in virtually the same manner lowest sell price entered into the ECN as approved in the NNMS Order.45 A by market makers.40 UTP Exchanges the best three price levels (on either side of the market) in Nasdaq. that have an interface with Nasdaq are 44 If a quote/order is designated as non- Nasdaq Level 1 Service provides the inside bid/ required under the UTP Plan to submit offer quotations and identifies the market center at to Nasdaq a two-sided quote, which attributable, it will be displayed in the the best bid/best offer according to the Nasdaq UTP represents the exchange’s best quote in NODF as part of the aggregate trading Plan. See NASD Rule 7010 and Nasdaq UTP Plan, Section VI, Paragraph C, Subparagraph 1. The the stock at issue. interest when it is within the best three price levels. That quote/order will not, National Quotation Data Service, or NQDS, provides individual market maker quotes, Level 1 1. Enhanced Display of Trading Interest Service, and last sale information. See id. According Under the proposal, Nasdaq will 41 See Amendment No. 8, supra note 12. The to the NASD, the SIZE MMID will be used in retain the bottom portion of the NWII, NASD has stated that if Nasdaq should display determining the best bid/best offer and more than three price levels in the NODF, it will corresponding market center for purposes of Level the Nasdaq Quotation Montage, which provide expanded price level information through 1 and UTP. NQDS Prime. Nasdaq will assess a separate, 45 See NNMS Order, supra note 22. Nasdaq also 38 See NNMS Order supra note 22. additional vendor data fee for quote/order filed a proposal with the Commission that will 39 See NASD Rule 4613. While a market maker’s information away from the inside. The NASD will permit the separate display of customer orders by quoted price and size is attributed to the market seek approval for the fee from the Commission in market makers in Nasdaq through a market maker maker by the corresponding MMID, this may not a separate filing. agency identification symbol. See Securities represent the market maker’s best price if the 42 According to the NASD, both attributable and Exchange Act Release No. 41128 (March 2, 1999), market maker has placed a better-priced order with non-attributable quotes/orders are considered 64 FR 12198 (March 11, 1999) (notice of filing of an ECN that complies with the display alternative ‘‘displayed orders’’ because they are displayed in SR–NASD–99–09) (‘‘Agency Quote Proposal’’). The under SEC Rules 11Ac1–1(c)(5) and 11Ac1–4. See the Nasdaq system. Commission subsequently extended the comment 17 CFR 240.11Ac1–1(c)(5) and 17 CFR 240.11Ac1– 43 UTP Exchanges will only be permitted to period for the Agency Quote Proposal. See 4. display principal quotes/orders on an attributable Securities Exchange Act Release No. 41243 (April 40 See NASD Rule 4623. ECNs also may be basis and agency quotes/orders on a non- 1, 1999), 64 FR 17428 (April 9, 1999). The Agency required to submit the prices and sizes of orders at attributable basis. See Proposed NASD Rule 4710(f). Quote Proposal currently is pending with the the highest buy price and lowest sell price entered Further, UTP Exchanges will not be permitted to Commission. If the Commission approves the into the ECN by all subscribers to comply with indicate a reserve size. See Proposed NASD Rule Agency Quote Proposal, a market maker’s Agency Regulation ATS. 4701(dd). Quote could also have reserve size. VerDate 11 Nasdaq Quoting Market Participant will order at a given price, the system will liability, Nasdaq proposes to route all be required to display (either as maintain the original time stamp for the Liability and non-Liability Orders in the attributable or non-attributable) 1,000 original quantity and assign a separate Nasdaq system through the OCF portion shares in order to use reserve size. time stamp for the augmentation, thus of the SuperMontage. Reserve size will replenish displayed protecting the time priority of the To access quotes/orders through the size (attributable or non-attributable) by originally-entered quantity. Subsequent OCF, order entry firms, market makers, at least 1,000 shares once displayed size decreases in size will be deducted from ECNs, and UTP Exchanges may enter is decremented to zero. Reserve size, individually stamped components in either a directed or non-directed along with displayed (both attributable reverse time priority. Once a displayed (including preferenced) order into the and non-attributable) size, will be size is diminished to zero, however, the OCF.53 The order can be up to 999,999 accessible through Nasdaq’s trading quote/order will no longer retain shares (there will be a separate odd-lot platform, the NNMS. Reserve size, priority, although it may have a feature process), and must indicate whether it however, will not be displayed in either that automatically refreshes size.49 is a buy, sell, sell short, or sell short the NODF or the Nasdaq Quotation In addition, a Nasdaq Quoting Market exempt order.54 The order must be a Montage. As described further below in Participant will designate a quote/order priced or market order. Non-directed the Order Execution Algorithms section as either attributable or non-attributable, orders entered by order-entry firms will of this Order, reserve size generally will and could designate a reserve size.50 As be designated as immediate or cancel be accessed after all displayed size at a noted above, for attributable quotes/ orders. Orders entered by Nasdaq given price in the Nasdaq market is orders, the prices and sizes of a Nasdaq Quoting Market Participants or UTP exhausted.46 Quoting Market Participant’s or UTP Exchanges may be designated as Exchange’s best-priced attributable immediate or cancel.55 B. Order Collector Facility quotes/orders on both the bid and offer Nasdaq will affix the MMID of the Nasdaq proposes to establish an OCF side will be aggregated and displayed in sender to all delivered orders. Further, as part of the SuperMontage that will: the Nasdaq Quotation Montage under preferenced orders and non-directed (1) transmit to Nasdaq multiple quotes/ the participant’s MMID, and also will be orders that are executed against a orders at one price or quotes/orders at included in aggregate trading interest market maker or other market multiple price levels entered by Nasdaq displayed in the NODF if the quotes/ participant that participates in the Quoting Market Participants and UTP orders fall within the three best price automatic execution functionality of the Exchanges; 47 (2) accept orders to access levels (on either side of the market) in system will result in an execution report quotes/orders displayed (as either Nasdaq. For non-attributable quotes/ being sent to each party to the trade attributable or non-attributable) in both orders, Nasdaq will display the immediately upon execution that the NODF and the Nasdaq Quotation aggregate size of such quotes/orders in identifies all counterparties to the trade. Montage; and (3) unify Nasdaq’s the NODF when the quotes/orders fall This is true whether a non-directed delivery of Liability Orders to Nasdaq within the three best price levels (on order is executed against an attributable Quoting Market Participants and UTP either side of the market) in Nasdaq. In quote/order or a non-attributable quote/ Exchanges,48 which should minimize addition, the best-priced non- order.56 the potential for dual liability. attributable quotes/orders from all The NASD represents that the 1. Entry of Quotes/Orders Nasdaq Quoting Market Participants and SuperMontage improves the current UTP Exchanges will be aggregated and SelectNet order cancellation process for Nasdaq proposes to allow Nasdaq displayed next to the SIZE MMID in the ECNs and other participants that take Quoting Market Participants and UTP Nasdaq Quotation Montage. order delivery. Today, a firm entering an Exchanges to transmit multiple quotes/ The proposal will not require Nasdaq order into SelectNet can cancel the orders and quotes/orders at multiple Quoting Market Participants and UTP order after 10 seconds regardless of the price levels (subject to restrictions on a Exchanges to post multiple quotes/ order’s status—i.e., regardless of UTP Exchange’s ability to send multiple orders at multiple price levels. A market whether the market participant that quotes/orders for principal quotes/ maker could continue to send only its received the order is attempting to orders), which the system will manage best bid/best offer to Nasdaq, and an execute the order. In SuperMontage, an and display in the SuperMontage ECN could continue to send Nasdaq order that is in delivery to an ECN or consistent with a quote/order’s only its top of the book. In addition, UTP Exchange cannot be canceled. parameters. Nasdaq will time stamp UTP Exchanges may elect to provide Thus, if a market participant requests to each quote/order upon receipt, and the only their best quotes for display in the cancel an order that has been delivered time stamp will be used in determining Nasdaq Quoting Montage.51 to an ECN or UTP Exchange, the system the ranking of the quote/order for 2. Order Execution and Delivery will hold the cancel request until the execution purposes. If a size increment ECN or UTP Exchange has completed is received from a Nasdaq Quoting Even under NNMS (i.e., the SOES and interacting with the delivered order (i.e., Market Participant for an existing quote/ SelectNet integration), the SOES and once the ECN or UTP Exchange SelectNet systems continue to operate 46 See Amendment No. 4, supra note 6. The on separate platforms, and from the end- 53 displayed size of UTP principal quotes/orders will See discussion in Section V.E., infra, for a user’s perspective there are still two description of the directed order process. be executed after the reserve size of other 52 participants has been accessed. separate systems. In order to further 54 Although Nasdaq eliminated the rule limiting 47 A UTP Exchange could only transmit a single integrate the systems and minimize the the size of orders that may be entered into the bid quote/order or single offer quote/order for potential for market maker dual NNMS, the system in the short term will only be principal quotes/orders, but could send multiple able to deliver an execution up to 9,900 shares. quotes/orders for agency quotes/orders. See However, if a market participant enters an order 49 Proposed NASD Rule 4710(f). See Amendment No. 8, supra note 12. into the system that is eligible for automatic 50 48 Under the proposed rule change, a Liability Under the proposal, UTP Exchanges cannot use execution and exceeds the system size limit of Order is an order that Nasdaq believes gives rise to the reserve size function, but may submit multiple 9,900, the OCF will break the order up into liability under the Firm Quote Rule, Exchange Act non-attributable quotes representing agency multiples of 9,900 shares. See NMMS Order, supra Rule 11Ac1–1, for a Nasdaq Quoting Market interest. note 22. Participant or UTP Exchange. See 17 CFR 240– 51 See Amendment No. 8, supra note. 55 See Amendment No. 8, supra note 12. 11Ac1–1. 52 See NNMS Order, supra note 22. 56 See Amendment No. 8, supra note 12. VerDate 11 executes, partially executes, or declines against which the order is to be automatically decrement the the order) or fails to respond within the executed or delivered. When a participant’s quote by the size of the allowable time. For example, if an order preferenced order is next to be executed delivered order and the remaining is delivered to an ECN and the entering within the non-directed order queue it quote, if not decremented to zero, will market participant requests to cancel, will be delivered to the designated party retain its priority in the queue.62 the system will hold the cancel request. as an order or as an execution If an order delivery ECN or UTP If the ECN declines or partially executes depending on how the party participates Exchange declines or partially fills an the order, the cancel request will be in Nasdaq. The SuperMontage will order, or fails to respond in any manner honored, thus canceling the original execute against (or deliver an order in within thirty seconds of order delivery, order (or the unexecuted balance of the an amount up to) both the displayed Nasdaq will immediately re-route the original order for partially-executed and reserve size of the preferenced order (or unexecuted portion thereof) to orders).57 Nasdaq Quoting Market Participant or the next Nasdaq Quoting Market UTP Exchange, but only if it is at the Participant or UTP Exchange in the C. Non-Directed Orders BBO. Any unexecuted portion will be queue.63 In addition, in the case of an Under the proposal, a market returned to the entering market order delivery ECN that has declined or participant will be able to immediately participant.60 partially filled an order without access the best prices in Nasdaq by immediately transmitting a revised entering a non-directed order into the 1. Quote Decrementation of Non- quote/order or that has failed to respond OCF. A non-directed order is an order Directed Orders within 30 seconds, Nasdaq will zero out that the market participant does not For Nasdaq Quoting Market the ECN’s quotes/orders at that price route to a particular Nasdaq Quoting Participants and UTP Exchanges level on that side of the market. In the Market Participant or UTP Exchange, or accepting automatic executions, the case of an order delivery UTP Exchange a preferenced order (as further described SuperMontage will deliver an execution that has declined or partially filled an below). A non-directed order must be a up to the size displayed by the order without immediately transmitting market order or a marketable limit participant, then to other displayed a revised quote/order or that has failed order.58 Upon receipt of a non-directed orders at that price, and then to the to respond within 30 seconds, Nasdaq order that is not a preferenced order, the participant’s reserve size (if any).61 The will move the side of the UTP OCF will ascertain the next Nasdaq SuperMontage will automatically Exchange’s quote/order, to which the Quoting Market Participant or UTP decrement the aggregate quote in the declined or partially filled order was Exchange in the queue due to receive an NODF by the size of the delivered delivered, to the lowest bid or highest order pursuant to one of three Order execution, and decrement the Nasdaq offer in Nasdaq for 100 shares.64 Execution Algorithms and deliver either Quoting Market Participant’s or UTP Nasdaq also will apply a shorter an execution or a Liability Order, Exchange’s quote/order in the Nasdaq uniform turn-around standard of a depending on how the Nasdaq Quoting Quotation Montage if the quote/order is maximum of 5 seconds to order delivery Market Participant or UTP Exchange attributable. Displayed (attributable or ECNs. The purpose is to establish a participates in Nasdaq.59 However, as non-attributable) size will be general standard (as opposed to an described below in the Order Execution replenished from reserve size for order-by-order standard) that measures Algorithms section of this Order, a Nasdaq Quoting Market Participants whether an ECN is providing an Nasdaq Quoting Market Participant’s accepting automatic executions if the automated response in a time period non-directed orders first will be participant’s displayed size has been that ensures market quality. Thus, matched against its own quotes/orders if decremented to zero and the participant Nasdaq proposes to monitor an ECN’s the participant is at the Nasdaq BBO. has reserve size. If an ECN accepts order turnaround time based on A new type of non-directed order automatic executions and its information received from the ECN’s called a ‘‘preferenced order’’ also can be attributable quotes/orders and reserve Nasdaq Service Display Platform entered into the non-directed order sizes are exhausted without the ECN (‘‘SDP’’). Nasdaq will use SDPs linked to process, and will be considered a updating or transmitting another each ECN to assign a time-stamp for Liability Order. The market participant attributable quote/order to Nasdaq, when an order is delivered to the ECN. entering the preferenced order must Nasdaq will zero out the side of the Nasdaq also will capture the time-stamp designate the particular Nasdaq Quoting quote that is exhausted. If both sides of via the SDP of when the ECN sends a Market Participant or UTP Exchange the ECN’s quote are reduced to zero without the ECN updating or 62 For example, assume there are three market 57 See Amendment No. 7, supra note 10. transmitting another attributable quote/ participants at the inside bid of $20 and ECN1, 58 Because non-directed orders entered by order- ranked first for execution purposes, is displaying entry firms will be designated as ‘‘immediate or order, the ECN will be placed into an 1,000 shares at $20 on the bid side of the market, cancel’’ orders, if a marketable limit order becomes excused withdrawal state until the ECN with 5,000 in reserve. Further assume that five non-marketable after entry into the system, Nasdaq transmits a revised attributable quote/ market sell orders are entered into the system for will return the order (or the unexecuted portion order to Nasdaq. However, Nasdaq will the following amounts: (1) 100 shares; (2) 100 thereof) to the entering party. See Amendment No. shares; (3) 100 shares; (4) 100 shares; (5) 700 shares. 8, supra note 12. continue to access any non-attributable These market sell orders will be processed as If an order is a sell short that is not exempt from quotes/orders in NNMS while the ECN follows. The first 100-share order will be delivered NASD Rule 3350 and the market moves from an up- is in an excused withdrawal state. to ECN1, reducing its displayed size to 900. The bid to a down-bid after the order has been entered For Nasdaq Quoting Market second, third and fourth orders also will be but before delivery or execution, the system will delivered to ECN1, further reducing its displayed return the order to the participant who entered it. Participants and UTP Exchanges not size to 600. When the fifth order is delivered to Sell-short exempt orders (i.e., those entered by participating in automatic executions ECN1, its displayed size will be reduced to zero and primary market makers) may be entered into the (i.e., order delivery ECNs and UTP the remaining 100 shares will access the displayed system for execution. Exchanges), Nasdaq will deliver a size of the next market participant in the queue at 59 $20. See Amendment No. 7, supra note 10. Nasdaq Under the proposal, market makers will Liability Order. Nasdaq will continue to be required to take automatic will not wait for an order to be processed before executions via the NNMS; however, ECNs and UTP routing another order to an ECN. See Amendment Exchanges will have the option to participate in 60 See Amendment No. 8, supra note 12. No. 8, supra note 12. either the system’s automatic execution or order 61 UTP Exchanges cannot use the reserve size 63 See Amendment No. 8, supra note 12. delivery functions. feature. 64 See Amendment No. 8, supra note 12. VerDate 11 response to the delivered order. Nasdaq security and reopen the market maker’s indicates that the price improvement will then calculate and monitor, on a quote.67 offered by the quote/order is equal to or real-time basis, the difference between exceeds the quote access fee, in time D. Order Execution Algorithms 68 the two time stamps and determine priority; (2) displayed quotes/orders of whether the ECN is meeting the 5 The OCF will execute non-directed ECNs that charge a separate quote access second maximum order-response orders, other than preferenced orders, fee to non-subscribers that do not standard. On an ongoing basis, Nasdaq against Nasdaq Quoting Market indicate that the price improvement will monitor ECN response times and Participant’s and UTP Exchange’s offered by the specific quote/order is provide each ECN with its own order quotes/orders based on price/time equal to or exceeds the access fee, in responsiveness time statistics, which priority unless the market participant time priority; 71 (3) reserve size of will not be made public. If an ECN chooses to override this default market makers and ECNs that do not regularly fails to meet the 5 second algorithm and select one of the charge a separate quote access fee to response time over a number of orders, alternative algorithms made available by non-subscribers, as well as reserve size Nasdaq will place that ECN’s quote in the OCF. These alternative algorithms of quotes/orders from ECNs that charge a closed quote state. The closed quote are: (1) price/size/time priority; and (2) a separate quote access fee to non- price/time priority that accounts for state will be lifted when the ECN can subscribers where the ECN entering ECN quote access fees. such quote/order has indicated that the certify that it can meet the 5 second In the price/time algorithm, non- response time requirement.65 price improvement offered by the directed orders other than preferenced specific quote/order is equal to or 2. Quote Refresh and Revised SOESed- orders will be executed (within each exceeds the quote access fee, in time Out-of-the-Box Procedures price level) as follows: displayed priority; (4) reserve size of ECNs that quotes/orders of market makers, ECNs, charge a separate quote access fee to As noted previously, market makers and non-attributable agency interest of non-subscribers that do not indicate that are required to maintain a two-sided, UTP Exchanges, in time priority; (2) the price improvement offered by the attributable principal quote in Nasdaq at reserve size of market makers and ECNs, specific quote/order is equal to or all times. To assist with this in time priority; and (3) principal quotes exceeds the quote access fee, in time requirement, market makers will be able of UTP Exchanges, in time priority.69 priority; and (5) the principal interest of to use the Quote Refresh (‘‘QR’’) In the alternative order execution UTP Exchanges, in time priority. function.66 QR allows a market maker to algorithm based on price/size/time Each of these algorithms will make an designate a refresh size (with a default priority, non-directed orders other than exception for non-directed, non- refresh size of 1,000 shares) and price preferenced orders will be processed preferenced orders entered by a Nasdaq (e.g., a tick amount away from the price (within each price level) as follows: (1) Quoting Market Participant when that of its decremented quote) to which it Displayed quotes/orders of market Nasdaq Quoting Market Participant’s wishes to refresh if its quoted size is makers, ECNs, and non-attributable quote/order is at the inside market. In decremented to zero. If a market maker agency interest of UTP Exchanges, in that case, the SuperMontage will first is using QR but has an attributable size/time priority; (2) reserve size of attempt to match orders entered by the quote/order in the system that is priced market makers and ECNs, in size/time Nasdaq Quoting Market Participant at or better than the quote that will be priority, with size priority based on the against its own quote/order if the created by the QR, Nasdaq will display size of the related displayed quote/ Nasdaq Quoting Market Participant is at the better-priced or equally-priced order; and (3) principal quotes of UTP the BBO. Finally, market participants attributable quote/order that is already Exchanges, in size/time priority. may preference an order to a Nasdaq As a third choice, market participants in the system, not the QR-produced Quoting Market Participant or UTP will be able to indicate that their order quote. If a market maker is not using QR Exchange at the BBO, as described should be executed in a manner that and the market maker has given Nasdaq above. accounts for an ECN’s separate quote multiple attributable quotes/orders, In all three algorithms, there will be access fee.70 Under this option, non- Nasdaq will display the market maker’s a five-second interval delay in certain directed orders other than preferenced next best-priced attributable quote/order instances before an order moves to the orders will be executed (within each next price level. As a general rule, when its best-priced attributable quote/ price level) as follows: (1) Displayed order is decremented to zero. where an order might be partially filled quotes/orders of market makers, ECNs at one price level but the remaining If a market maker’s quote/order is that do not charge a separate quote shares of the order will not be filled in decremented to zero and the market access fee, and non-attributable agency full within the next two minimum maker does not update its principal interest of UTP Exchanges, as well as trading increments (i.e., price ticks) quote via QR, transmit a revised quotes/orders of ECNs that charge a away, there will be a five-second attributable quote/order to Nasdaq, or separate quote access fee where the ECN interval delay or pause before the order have another attributable quote/order in moves to the next price level. At any 67 the system, Nasdaq will place the See discussion of current SOESed-out-of-the- point after a delay, if the remainder of market maker’s quote (both sides) in a Box procedure at Section V.C., infra and Proposed Amended NASD Rule 4613(a). the order can be entirely filled within closed state for three minutes. At the 68 The Order Execution Algorithm was the next two price ticks away, there will end of that time, if the market maker did substantially modified by Amendment Nos. 4, 6, 7, be no further delays and the order will not voluntarily update or withdraw its and 8 to the proposal. See supra notes 6, 9, 10, and be filled completely. Thus, a large quote from the market, Nasdaq will 12. 69 According to the NASD, similar to the market order moving through many refresh the market maker’s quote/order Intermarket Trading System (‘‘ITS’’), the to its normal unit of trading (generally SuperMontage will generally attempt to probe and 71 In Amendment No. 6, supra note 9, the NASD 100 shares) at the lowest bid and highest sweep the Nasdaq market before sending an order represented that if, in a decimals environment, offer currently being displayed in that to another market center. See, e.g., Section 8(a)(v) ECNs changed the manner in which they charge of the ITS Plan. fees to reflect their fees in their published quote, 70 The algorithm is similar to the algorithm these ECN quotes will be given the same priority 65 See Amendment No. 8, supra note 12. proposed in Amendment No. 7. See Amendment for non-directed orders as market makers and non- 66 See NNMS Order, supra note 22. No. 7, supra note 10. attributable agency quotes of UTP Exchanges. VerDate 11 price levels could pause for five seconds displaying (attributable or non- override the system warning. This before every price move except for the attributable) interest in the NODF and override will help market participants last two.72 receives a directed non-Liability Order avoid automatic executions resulting To reduce these interval delays, a that it wants to fill, to avoid double from inadvertent locking or crossing market participant will be able to execution, it may request to cancel its quotes/orders by not overriding the designate an individual order as a displayed quote/order in Nasdaq before system warning.76 ‘‘Sweep Order.’’ A Sweep Order will it fills the non-Liability Order. Nasdaq If the market is locked or crossed at trade through all interest (i.e., displayed will not decrement a quote/order upon 9:30 a.m., Nasdaq will clear out the and reserve interest) at the three price the delivery of a directed non-Liability locked or crossed quotes by executing levels being displayed in the NODF at Order. the oldest bid (offer) against the oldest the time of entry, without pausing five Nasdaq Quoting Market Participants offer (bid) which it is marketable seconds between each displayed price. and UTP Exchanges also can elect to against, at the price of the oldest quote/ If the order is not executed in full at the receive directed orders that are Liability order. Nasdaq then will begin third price level, the order will pause Orders (i.e., orders that when delivered processing non-directed orders that are for five seconds between each to market participants’ quotes/orders in the queue.77 73 impose an obligation to respond in a subsequent price level. G. UTP Exchange Participation manner consistent with the E. Directed Orders Commission’s Firm Quote Rule).74 If a Under the proposal, UTP Exchanges A directed order is one that is routed market participant chooses to accept will be able to enter orders into the by the market participant entering the directed Liability Orders, Nasdaq will SuperMontage. Orders from UTP order to a specific Nasdaq Quoting append an indicator to the Nasdaq Exchanges that offer automatic Market Participant or UTP Exchange. Quoting Market Participant’s or UTP execution reciprocity to Nasdaq will Unless the participant to which a Exchange’s MMID, showing that the receive automatic execution against directed order is being sent has agreed market participant is available to receive Nasdaq Quoting Market Participants to accept directed orders that are directed Liability Orders. that take automatic executions.78 Liability Orders, a directed order must Participating UTP Exchanges that do not be a non-Liability Order, and as such, F. Locked/Crossed Markets offer automatic execution reciprocity to must be designated as: (1) All-or-None A locked market occurs when a Nasdaq will have their orders delivered (‘‘AON’’) with a size at least one unit of market participant’s bid equals the to the next Nasdaq Quoting Market trading greater than the size of the lowest offer of another market Participant in the queue according to attributable quote/order of the market participant. A crossed market occurs their choice of the Order Execution participant to which the order is when a market participant’s bid exceeds Algorithms.79 Otherwise, UTP directed; or (2) a Minimum Acceptable the lowest offer of another market Exchanges will be able to use the Quantity order (‘‘MAQ’’) with a MAQ participant. Under the NASD’s proposal, directed 80 and non-directed order value of at least one unit of trading if a Nasdaq Quoting Market Participant processes of SuperMontage in the same greater than the size of the attributable or UTP Exchange enters a quote/order way as Nasdaq Quoting Market quote/order of the participant to which that will lock or cross the market, the Participants. Also, UTP Exchanges will the order is directed. If a Nasdaq SuperMontage will not display the be able to enter multiple non- Quoting Market Participant or UTP quote/order, but instead will reformat attributable quotes/orders representing Exchange is at the inside or is the quote/order as a marketable limit agency interest. UTP Exchanges, order and enter it into the however, will only be able to submit a 72 Orders will be processed in time sequence. SuperMontage as a non-directed order single, two-sided attributable quote, and Thus, if an order is in interval delay because it for execution.75 The reformatted order will not be able to use reserve size or meets the above parameters, orders that are behind will be routed to the displayed quote/ QR. the interval-delay order will be held in the queue. order (attributable or non-attributable) As discussed above, pursuant to the 73 For example, assume that at 10:00:01 a.m., the Order Execution Algorithms, non- inside market in Stock G is $104.55 to $104.60, and next in the queue that will be locked or the following quotes/orders are being displayed in crossed, and the order will be executed attributable agency interest of UTP the system on the bid side of the market: MMA at the price of the displayed quote/ Exchanges generally will be executed on $104.55—1,000 (total, including reserve), MMB parity with displayed quotes/orders $104.50—2,000 (total, including reserve), ECN1 order. Once the lock or cross is cleared, if the Nasdaq Quoting Market (attributable and non-attributable) of $104.45—9,000 (total, including reserve), MMC 81 $104.45—10,000 (total, including reserve). Participant’s or UTP Exchange’s quote/ market makers and ECNs. The At 10:00:02 a.m., Institution Q enters a 10,000 order that would have locked or crossed principal interest of UTP Exchanges will share market sell order (through a market maker), the market has not been completely be last in priority under the Order which is designated as a Sweep Order. Since the filled, the SuperMontage will reformat order will be filled in full by the interest that is at 76 See Amendment No. 7, supra note 10. the three price levels being displayed in Nasdaq, the order again and display it 77 According to the NASD, prior to the opening, Institution Q’s order is filled in full with no time (consistent with the parameters of the Nasdaq will process ‘‘trade-or-move’’ messages in delay between prices. If at 10:00:02 a.m., while the quote/order) as a quote/order on behalf accordance with NASD Rule 4613, as amended by Sweep Order is executing against the quotes/orders File Nos. SR–NASD–99–23 and SR–NASD–00–18. in Nasdaq, an internal subscriber of ECN1 (an of the entering Nasdaq Quoting Market See Securities Exchange Act Release Nos. 42400 automatic execution ECN) wishes to execute against Participant or UTP Exchange. It should (February 7, 2000), 65 FR 7407 (February 14, 2000); the $104.45 for 9,000 shares being displayed in be noted, however, that a market and 42896 (June 2, 2000), 65 FR 36747 (June 9, Nasdaq, before filling the subscriber’s order, ECN1 participant will receive a system 2000). could send a request to cancel the order to Nasdaq. 78 If Nasdaq had already executed against the 9,000 warning (as it does today) if it attempts See Amendment Nos. 4 and 6, supra notes 6 shares, ECN1 would send a message to its customer to send a quote/order that will lock or and 9. declining the execution because the Sweep Order cross the market. To complete the order 79 See Amendment No. 6, supra note 9. As a result, market makers may have to develop separate had filled the quote/order. If Nasdaq had not entry, the participant will be required to executed against the 9,000 shares, ECN1’s request systems to accept order delivery from UTP to cancel would be granted, the internal execution Exchanges. could occur, and the remainder of Institution Q’s 74 See Exchange Act Rule 11Ac1–1, 17 CFR 80 See Proposed NASD Rule 4710(f). order would be executed against MMC. See 240.11Ac1–1. 81 See Amendment Nos. 4 and 8, supra notes 6 Amendment No. 5, supra note 8. 75 See Proposed NASD Rule 4710(b)(3). and 12. VerDate 11 Execution Algorithms, and will be To ensure continuity of price, if a sessions on a weekend. This will allow executed after the system does a mixed-lot is entered into the system, the market participants to train their complete sweep of the agency interest of odd-lot portion will be executed against personnel on the new system and to UTP Exchanges and the displayed and the next market maker in the rotation at participate in a real-time trading reserve size of all Nasdaq Quoting the round-lot portion price once the environment. Market Participants. round-lot portion has been executed. Nasdaq plans to phase-in Nasdaq The odd-lot processing mechanism securities similar to the way the SEC’s H. ECN Participation also will provide a maximum five- Order Handling Rules were introduced. As discussed above, ECNs that are second interval delay between Specifically, Nasdaq intends to initially NASD members will have the choice of executions against the same market implement the system for a limited participating in order delivery or maker in the same security. A market number of securities (e.g., 100) automatic execution. Regardless of the maker will be able to adjust its interval- representing a cross-section of Nasdaq- method of participation, these ECNs delay time down (i.e., down to 0–4 listed stocks. On a regular basis will have full access to the seconds), so that it may receive odd-lot thereafter, Nasdaq will add 100 new SuperMontage for order entry and order executions more frequently than five stocks until the system is implemented delivery. Specifically, ECNs that are seconds apart. Thus, after an odd-lot has for all Nasdaq-listed securities. Nasdaq NASD members will be able to been executed against a market maker will select a cross section of stocks to be designate quotes/orders as attributable with an available exposure limit, there included in each group of 100 securities or non-attributable, and will be able to will be at most a five-second interval to be rolled out during a particular transmit multiple quotes/orders at the delay before the market maker will be week. same price or at multiple prices. All subject to another odd-lot execution. The purpose of the system roll out is ECNs will be able to use the During the five-second (or less) interval to give Nasdaq and its members the SuperMontage’s reserve size feature for delay, the market maker could adjust its opportunity to observe and gain quotes/orders. ECN participation in odd-lot exposure limit up or down. experience with the new system, and to Nasdaq will continue to be governed by Finally, the system will be programmed give Nasdaq the opportunity to make rule and private contract. to accept odd-lot orders at a rate no any adjustments to the system (subject to approval by the Commission), if I. Odd-Lot Processing 82 faster than one order per second from any single participant. necessary. Nasdaq intends to work The SuperMontage will accept and closely with the Commission during the execute orders for less than one normal J. Nasdaq SmallCap roll-out phase to ensure a smooth unit of trading (i.e., odd-lot orders). The Nasdaq proposes to use the transition to the new system. SuperMontage will provide a separate SuperMontage for all Nasdaq securities, IV. Summary of Comments mechanism for processing and including SmallCap securities. Nasdaq The Commission received 21 executing odd-lot orders including: (1) proposes to delete the current SOES An ‘‘odd-lot exposure limit’’ for market comment letters in response to the rules excluding SmallCap securities 85 makers; (2) an interval delay between December 6, 1999 notice. Ten from the NNMS. 86 odd-lot executions against the same commenters supported and five 83 87 market maker; and (3) an odd-lot order K. System Roll Out commenters opposed the proposal to entry limitation of one order per second, Nasdaq intends to implement the 85 See December 6, 1999 notice, supra note 4, and per firm. SuperMontage as soon as practicable Comment Summary for a complete description of Odd-lot orders will be processed in a after decimal pricing is fully these comments. The Commission notes that several round-robin fashion against market implemented in Nasdaq.84 Nasdaq plans commenters addressed the NNMS, which was makers with an available exposure limit to give market participants and vendors pending at the time that the NASD submitted this proposed rule change. The Commission is not and will be executed at the BBO, even at least 90 days notification of changes addressing these comments because the if the market makers are not at the in system specifications. At the time of Commission has already approved the NNMS. See inside. A market maker can set its such notification, market participants NNMS Order, supra note 22. The Commission also exposure limit, on a security-by-security notes that several commenters raised issues with will be given new specifications in respect to the Agency Quote proposal currently basis, from 0 to 999,999 shares. The order to begin analyzing the system pending before the Commission. The Commission SuperMontage will not execute an odd- changes. Nasdaq has represented that its will address those comments when it considers the lot order against a market maker unless staff will work throughout this period Agency Quote proposal. If the Agency Quote the market maker has a sufficient proposal is not approved by the Commission, with market participants to address any Nasdaq has represented that it will file conforming exposure limit to fill the odd-lot order. system and specification-related rule changes to eliminate references to Agency When a market maker’s odd-lot questions and issues. Quotes in its rule text. See Amendment No. 3, note exposure limit is reduced to zero, it will At least 60 days prior to system 8, supra note 5. At least one commenter also be taken out of the odd-lot rotation questioned the application of the proposal with implementation, Nasdaq plans to give respect to the IODES proposal. Nasdaq, however, unless and until the market maker sets participants notice of specific testing has withdrawn this proposal. See supra note 16. a new exposure limit. If no market dates and of the availability of a testing Other comments not directly related to the maker has an odd-lot exposure limit, the environment. In addition, at least 30 SuperMontage are also not addressed in this Order. SuperMontage will suspend the days prior to system implementation, 86 See Electronic Traders Association Letter processing of odd-lots until an exposure (‘‘ETA’’ Letter); Investment Company Institute Nasdaq plans to make available a testing Letter (‘‘ICI’’ Letter); Security Traders Association limit is refreshed. Odd-lot executions environment in which firms may begin Letter (‘‘STA’’ Letter); Security Traders Association will decrement the exposure limit (but testing their software and hardware (if of New York, Inc. Letter (‘‘STANY’’ Letter); Merrill not the quote/order sizes displayed in applicable). Finally, Nasdaq plans to Lynch Letter; Chicago Stock Exchange Letter the Nasdaq Quotation Montage or (‘‘CHX’’ Letter); Morgan Stanley Dean Witter Letter hold at least two full-day, mock trading (‘‘MSDW’’ Letter); Goldman Sachs Letter; Nasdaq NODF) by the size of the odd-lot order. Institutional Advisory Council Letter (‘‘ITAC’’ 83 Nasdaq described its proposed system roll out Letter); and ITG Letter. 82 The system’s odd-lot processing function was in Amendment No. 5 to the proposal. See 87 See Bloomberg Letter; Automated Trading Desk substantially modified by Amendment No. 4 to the Amendment No. 5, supra note 8. Letter (‘‘ATD’’ Letter); Instinet Letter; Island Letter proposal. See Amendment No. 4, supra note 6. 84 See Amendment No. 6, supra note 9. (Initially, Island did not explicitly approve of or VerDate 11 establish the SuperMontage. Six these 27 commenters, 20 generally provisions contained in the proposal, or commenters did not clearly state a supported the proposal,92 while five did not clearly state a position on the position on the proposal.88 Of the opposed the proposal, including the proposal.100 commenters who supported the proposed changes.93 Two commenters In response to these comments, the proposal, all expressed reservations expressed neither support nor NASD and Nasdaq made several regarding certain aspects of the opposition to the proposal.94 Of those additional changes to the proposed rule proposal.89 commenters who expressed support for change. The proposed changes were In response to the comment letters, the proposal, three expressed published in the Federal Register as the NASD and Nasdaq made several reservations about certain aspects of the Amendment No. 8 on November 15, amendments to the proposal. These proposal.95 2000.101 The Commission received 24 proposed changes were published for In response to these comments, the comment letters in response to comment in the Federal Register on NASD and Nasdaq made additional Amendment No. 8. One commenter March 30, 2000 as Amendment No. 4.90 revisions to the proposal. The proposed expressed support for the proposal,102 The Commission received 31 comment changes were published in the Federal while 6 continued to oppose it.103 Eight letters from a total of 27 commenters in Register as Amendment Nos. 5, 6, and response to Amendment No. 4.91 Of 7 on August 15, 2000.96 The 100 See T. Rowe Price Associates, Inc. Letter Commission received 28 comment (‘‘TRPC’’ Letter); Gramm Letter; and Scudder oppose the proposed rule change. Island letters in response to these Kemper Investments Letter (‘‘Scudder Kemper’’ Letter). recommended that the Commission delay Amendments.97 Twelve expressed consideration of the proposed rule ‘‘until such time 101 See Securities Exchange Act Release No. 98 as the Nasdaq market is restructured to ensure fair support for the proposal, while 13 43514, supra note 13. competition between Nasdaq and ECNs or until continued to oppose it.99 Three 102 See Bloomberg Letter. such time as the Commission has permitted ECNs commenters supported the general 103 See Instinet Letter (Instinet also submitted a such as Island to become registered national concept of the SuperMontage, but letter addressing changes to be made by securities exchanges.’’ However, in its comment Amendment No. 8 prior to the Commission’s letter responding to Amendment No. 4, Island expressed concerns about specific receipt of the Amendment. This letter has also been expressed its opposition to the proposal); and incorporated); Archipelago Letter; Letter from NexTrade Letter. The Commission notes that commenters did not American Century Investment Management, Inc., 88 See BNY ESI & Co. Letter (‘‘BNY’’ Letter); limit their discussion to the topics addressed in Janus Capital Corporation, Neptune Capital Bancorp Letter; Heartland Letter (Heartland Amendment No. 4. Rather, many commenters Management LLC, State Farm Mutual Automobile believed that the proposed rule change should not discussed the proposal in its entirety. These Insurance Company, Alex Brown Investment be approved until the SOES/SelectNet Integration is commenters are listed as responding to Amendment Management, LP, Boston Company, Wachovia used and tested); American Century Investment No. 4 because their letters were dated after Bank, NA, State Street Research & Management Co., Management Letter (‘‘ACIM’’ Letter); Salomon Amendment No. 4 was published. Banc One Investment Advisors Corporation, West Smith Barney Letter; and Mount Pleasant Brokerage 92 See ICI Letter; CHX Letter; Traders Letter; Highland Capital, Inc., Fidelity Trust Company, Services Letter (‘‘MPBS’’ Letter). Charles Schwab Letter; Congressman Drier Letter; GMG/Seneca Capital Management, Westchester 89 See ETA Letter; ICI Letter; STA Letter; STANY Congressman Pallone Letter; Congresswoman Capital Management, Inc., Becker Capital Letter; Merrill Lynch Letter; MSDW Letter; ITAC Morella Letter; Congressman Stupak Letter; Management, Inc., Greenville Capital Management, Letter; CHX Letter; Goldman Sachs Letter; and ITG Congresswoman Wilson Letter; Congressman Inc., Friess Associates of Delaware, Inc., C.E. Letter. Unterberg, Tobin Advisors, LP, Kepmen Capital, 90 Towns Letter; Congressman McInnis Letter; See Securities Exchange Act Release No. 42573, Congressman Thomas Letter; Congressman Schroder Investment Management Ltd., Foreign & supra note. Radanovich Letter; Titak Letter; Philadelphia Corp. Colonial Management, Ltd., RAS Asset Management 91 See Instinet Letter; ICI Letter; Bloomberg Letter; Letter; Spears, Leeds & Kellogg Letter; First Union SGR, Scudder Investor Services, Inc., New York CHX Letter; Joseph J. Burrello, Principal and Letter; Security Investment Company Letters; Seidel State Common Retirement Fund, Dreyfus Fund, Manager of Nasdaq Trading, William Blair & Letter; and Bannon Letter. Virginia Retirement System, Pennsylvania School Company, Larry Elmore, Partner and Manager of 93 See Instinet Letter; Bloomberg Letter; Employee Retirement Systems, Harris Associates Equity Trading, J.C. Bradford & Co., Dennis A. Securities, LP, Columbia Partners, LLC Investment Green, Senior Vice President and Manager of Archipelago Letter; Granite Financial Letter; and Island Letter. Management, Caterpillar Investment Management, Nasdaq Trading, Legg Mason Wood Walker, Inc., Ltd., Nicholas Applegate Capital Management, Inc., Jack Hughes, First Vice President and Manager of 94 See Congressman Dingell Letter; and Telemet Letter. Symphony Asset Management, Monetta Financial Equity Trading, Janney Montgomery Scott, LLC, Services, Inc., Buckingham Capital Management, Robert Krohn, Managing Director of Nasdaq 95 See ICI Letter; Traders Letter; and Bannon Sedacca Capital Management, Inc., Robeco Group Trading, McDonald Investments, Inc., Greg Letter. NV, Montag & Caldwell, Gemini Management Lemaster, Manager of Nasdaq Trading, Stifel, 96 See Securities Exchange Release No. 43133, Partners, LLC, Abu Dhabi Investment Authority, Nicolaus & Company, Inc., James R. Miller, Manager supra note 11. BT&T Asset Management AG, Jacobs Levy Equity of Nasdaq Trading, Robert W. Baird & Company, 97 The Commission notes that commenters did Management, Inc., Newton Investment Management Inc., Bobby Olsen, Vice President and Manager of not limit their discussion to the topics addressed in Nasdaq Trading, Advest, Inc., Gerard Yurasits, Ltd., Berliner Freiverkehrs (Aktien) AG, Compass Amendment Nos. 5, 6, and 7. Rather, many Capital Ltd., SAC Capital, Standish, Ayer & Wood, Senior Nasdaq Trader, First Albany Corporation, commenters discussed the proposal in its entirety. Hedi H. Reynolds, Managing Director of Nasdaq Minnesota Power and Light Co., Frontier Capital These commenters are listed as responding to Management, Sage Asset Management, LLC, Target Trading, Morgan, Keegan & Company, Inc., William Amendment Nos. 5, 6 and 7 because their letters Cahill, Managing Director of Nasdaq Trading, Holdings Corporation, Lincoln Partners, Apex were dated after Amendment No. 7 was published. Capital, LLC, Twin Capital Management, Kanaly Robinson Humphrey Letter (‘‘Traders’’ Letter); 98 Island Letter; Archipelago Letter; Granite Financial See Senator Schumer Letter; Congressman Trust Company, Rothschild Bank AG, Sanpaolo IMI Letter; Security Investment Company Letters; Ehrlich Letter; Congressman Shays Letter; Asset Management SGR, Banque Paribas Charles Schwab Letter (addressed to Senator Phil Congressman Fossella Letter; Starbucks Coffee Luxembourg, Golden Capital Management, Gramm); Telemet Letter; Congressman Drier Letter; Letter (‘‘Starbucks’’ Letter)(addressed to Investment Adviser, Inc., R.H. Capital Associates, Congressman Pallone Letter; Congressman Dingell Congresswoman Jennifer Dunn); STA Letter; Quaker Capital Management, Eagle and Dominion Letter; Congresswoman Morella Letter; Association of Publicly Traded Companies Letter Asset Management Ltd., Bank Invest, Morley Fund Congressman Stupak Letter; Congresswoman (‘‘APTC’’ Letter); American Shareholder’s Management, Provident Investment Counsel, Wilson Letter; Congressman Radanovich Letter; Association Letter (‘‘ASA’’ Letter); Consumer Gruber & McBaine Capital Management, Dupont Congressman Towns Letter; Congressman McInnis Federation of America Letter (‘‘CFA’’ Letter); Capital Management, Masters Capital Investments, Letter; Congressman Thomas Letter; Spears, Leeds Wendell Garrett Letter (‘‘Garrett’’ Letter) (addressed LLC, Sawgrass Asset Management, LLC, Kaintuck & Kellogg Letter (addressed to Senator Phil Gramm); to Congressman John Shadegg and Senator Jon Kyl); Capital Management, LP, HighMark Capital First Union Letter (addressed to Alfred R. Berkeley, O’Connor Letter; and Jeffries Letter. Management, Inc., Atticus Holdings, LLC, Credit President, the Nasdaq Stock Market); Seidel Letter 99 See Philadelphia Stock Exchange Letter Agricole Indosuez Cheuvreux, Royce & Associates, (‘‘Seidel’’ Letter); Thurston, Springer, Miller, Herd (‘‘Phlx’’ Letter); ACIM Letter; Instinet Letter; Inc., OrbiMed Advisors LLC, Cordillera Asset & Titak Letter (‘‘Titak’’ Letter); Philadelphia Bloomberg Letter; BRUT Letter; Harold Bradley Management, Inc., Fisher Investments, Inc., Ohio Corporation for Investment Services Letter Letter (‘‘Bradley’’ Letter); Archipelago Letter; Valley Management, Inc., Loews Corporation, (‘‘Philadelphia Corp.’’ Letter)(address to Senator NexTrade Letter; Seema Aurora Letter (‘‘Aurora’’ National City Investment Company, Zak Capital, Arlen Spector); and Robert Bannon Letter Letter); Island Letter; Renaissance Letter; Leon Inc., Ocean Park Capital Management, LLC, (‘‘Bannon’’ Letter). Letter; and Kupfer Letter. Continued VerDate 11 commenters supported the general Act.108 Section 15A(b)(11) 109 requires market makers in managing their limit concept of the SuperMontage, but that the rules of an association be orders.’’113 TRPA stated that ‘‘the expressed concerns about specific designed to produce fair and SuperMontage concept furthers the provisions contained in the proposal.104 informative quotations, prevent goals of unifying the markets and Nine commenters, while objecting to fictitious or misleading quotations, and providing a means for orders to interact certain aspects of the proposal, did not to promote orderly procedures for with one another, while allowing for clearly state a position on the proposal collecting, distributing, and publishing continuing innovation.’’114 The as a whole.105 quotations. And finally, in Section Commission agrees with these 11A(a)(1)(C),110 Congress found that it is commenters that there is good reason to V. Discussion in the public interest and appropriate conclude that the SuperMontage, by After carefully considering the for the protection of investors and the providing for the enhanced display of comments, the Commission finds, for maintenance of fair and orderly markets trading interest in Nasdaq securities and the reasons discussed below, that the to assure: (1) The economically efficient by expanding the availability of SuperMontage proposal is consistent execution of securities transactions; (2) automatic execution, will facilitate the with the requirements of the Act and the fair competition among brokers and price discovery process and promote rules and regulations thereunder dealers; (3) the availability to brokers, quote competition among Nasdaq applicable to the NASD. In particular, dealers, and investors of information Quoting Market Participants and UTP the Commission finds that the proposal with respect to quotations and Exchanges, thus helping to ensure the is consistent with the requirements of transactions in securities; (4) the best execution of customer orders. Sections 15A(b)(6), (9), and (11), and practicability of brokers executing In addition, by introducing features 11A(a)(1)(C) of the Act.106 Section investors’ orders in the best market; and to: (1) Assist market makers with the 15A(b)(6) 107 requires that the rules of a (5) an opportunity for investors’ orders management of their quotes/orders; (2) registered national securities association to be executed without the participation reduce instances of double liability for be designed to prevent fraudulent and of a dealer. market makers; and (3) encourage the manipulative acts and practices, to As discussed more fully below, the entry of larger sized quotations and promote just and equitable principles of Commission finds that the proposed orders by market makers and ECNs, the trade, to foster cooperation and changes are in the public interest and proposal likely will add liquidity to the coordination with persons engaged in are designed to assure the economically market and help assure the regulating, clearing, settling, processing efficient execution of securities economically efficient execution of information with respect to and transactions by increasing the transactions in Nasdaq securities. The facilitating transactions in securities, to availability of pre-trade information in proposed changes thus should enhance remove impediments to and perfect the Nasdaq securities, as well as the the efficiency and increase the depth mechanism of a free and open market opportunity for the orders of market and liquidity of the market for Nasdaq and a national market system, and, in makers, public customers, and order securities, to the benefit of all investors. entry firms to interact. Several general, to protect investors and the A. Nasdaq Order Display Facility public interest. Section 15A(b)(9) commenters believed that the proposal requires that the rules of an association will improve the Nasdaq market by The NODF will increase the not impose any burden on competition either providing more information to availability of information about that is not necessary or appropriate in investors, promoting greater efficiency quotations by displaying the three best furtherance of the purposes of the in executions, or increasing overall price levels in Nasdaq on both the bid market transparency.111 The ICI, for and offer side of the market to supplement the Nasdaq Quotation Tattersall Advisory Group, Peninsula Capital example, stated that ‘‘creating a system Management, Westway Capital, LLC, Munder that provides investors with greater Montage. Each price level will be Capital Management, Kadem Capital, LLC, Phoenix access to priced orders and allows them updated and will display aggregate Zweig Advisers, Fuller & Thaler Asset Management, to execute against those orders will trading interest at that price level. Chicago Equity Partners, LLC, Amerindo Advisers, Several commenters stated this aspect Ltd., Group Aesop Capital Partners, LLC, Wilen greatly enhance the quality of the Management Corporation, Ballentine Capital Nasdaq market.’’112 MSDW stated that of the proposal will result in more Management, Inc., Summit Capital Management the ‘‘ability to enter multiple information to investors, promote LLC, Sirach Capital Management LLC, Cadwell and proprietary/agency quotes/orders at greater efficiency in executions, Orkin, Wentworth, Hauser & Violich, Inc., Matrix promote liquidity, increase market Asset Advisors, Inc., George Weiss Associates multiple price levels will greatly assist (‘‘Investment Companies Letter’’)(addressed to transparency, and reduce market Senator Phil Gramm); CFA Letter; Office of the 108 15 U.S.C. 78o–3(b)(9). fragmentation.115 For example, several Comptroller, State of New York (‘‘NY’’ Letter) 109 15 U.S.C. 78o–3(b)(11). (stating that SuperMontage could ideally increase 110 15 U.S.C. 78k–1(a)(1)(C). 113 See MSDW Letter. information, but may provide unfair advantages to 111 See ETA Letter; Merrill Lynch Letter; Goldman 114 See TRPA Letter. market makers); and Adriaanse Letter (‘‘Adriaanse Sachs Letter; MSDW Letter; STA Letter; STANY 115 See ETA Letter; Merrill Lynch Letter; Goldman Letter’’). Letter; ITAC Letter; ICI Letter; Bannon Letter; Sachs Letter; STA Letter; STANY Letter; ITAC 104 See Security Investment Company Letter; ICI Bancorp Letter; Charles Schwab Letter; Letter; ICI Letter; Bannon Letter; Bancorp Letter; Letter; STA Letter; Pershing Trading Company, L.P. Congressman Drier Letter; Congressman Pallone MSDW Letter; Charles Schwab Letter; Congressman (‘‘Pershing’’ Letter); ACIM Letter; Cincinnati Stock Letter; Congresswoman Morella Letter; Drier Letter; Congressman Pallone Letter; Exchange (‘‘CSE’’ Letter); Scudder Kemper Letter; Congressman Stupak Letter; Congresswoman Congresswoman Morella Letter; Congressman and Vanguard Letter. Wilson Letter; Congressman Towns Letter; Stupak Letter; Congresswoman Wilson Letter; 105 See Island Letter; BRUT Letter; Ryley Letter; Congressman McInnis Letter; Congressman Thomas Congressman Towns Letter; Congressman McInnis CHX Letter; Suss Letter (‘‘Suss Letter’’); Silverman Letter; Spear, Leeds & Kellogg Letter; First Union Letter; Congressman Thomas Letter; Spears, Leeds Letter (‘‘Silverman Letter’’); Erfort Letter (‘‘Erfort Letter; Seidel Letter; Security Investment Company & Kellogg Letter; First Union Letter; Seidel Letter; Letter’’); Birmingham Letter (‘‘Birmingham Letter’’) Letters; ITG Letter; APTC Letter; Jeffries Letter; Security Investment Company Letters; ITG Letter; and aLV Letter (‘‘aLV Letter’’) (urging Commission Senator Schumer Letter; Congressman Radanovich APTC Letter; Senator Schumer Letter; Congressman to re-think passing the SuperMontage in its current Letter; Congressman Shays Letter; Congressman Radanovich Letter; Congressman Shays Letter; form). Fossella Letter; Titak Letter; ASA Letter; Starbucks Congressman Fossella Letter; Titak Letter; ASA 106 15 U.S.C. 78o–3(b)(6), (9), and (11), and 15 Letter; Philadelphia Corp. Letter; Garrett Letter; NY Letter; Starbucks Letter; Philadelphia Corp. Letter; U.S.C. 78k–1(a)(1)(C). Letter; and Congressman Ehrlich Letter. Jeffries Letter; Garrett Letter; NY Letter; and 107 15 U.S.C. 78o–3(b)(6). 112 See ICI Letter. Congressman Ehrlich Letter. VerDate 11 commenters believed that the proposal features.126 This commenter urged the three price levels. With the will provide a better overall picture of Commission to review this issue to implementation of decimals, market the market’s depth by enabling market ensure that large players do not receive participants will need to view and participants to display (and accept) an unfair trading advantage that is not access greater depth. At a penny multiple levels of priced orders.116 In available to small investors.127 Two quotation increment, for example, a best addition, one commenter believed that commenters also suggested that the offer of $20 for 100 shares may be less the enhanced display of trading interest NODF should display the five best price meaningful than a second best offer at will promote investor protection by levels in Nasdaq on both the bid and $20.01 for 1,000 shares. As discussed in decreasing trade-throughs (i.e., trades at offer side of the market to allow more detail below, because the NODF is prices worse than those available for a investors to better gauge the market 128 designed to enhance the display of security) and giving market participants and to constrain volatility.129 Another trading interest among participants, it more options for meeting best commenter believed that Nasdaq should should facilitate trading in a decimals execution, firm quote, and limit order display information for individual environment.135 While the Commission display obligations.117 Another market makers and ECNs up to three agrees with certain commenters that commenter stated that the proposal will price levels.130 display of depth beyond three levels help improve the current state of The Commission finds that the NODF, may be necessary once the markets fragmented trading in Nasdaq securities, as part of the SuperMontage, is move to decimals, the Commission and offer an improved execution system consistent with Sections 15A(b)(6) and understands that Nasdaq will consider over SOES and SelectNet.118 A third 15A(b)(11) of the Act 131 in that, among expanding the number of levels as it commenter believed that the NODF other things, it is designed to facilitate further develops the system. ‘‘will offer an enhanced means for transactions in securities and to produce With respect to concerns that Nasdaq market participants to gauge trading fair and informative quotations. Further, should display even greater information, interest at the Nasdaq inside market and the Commission finds that the order the Commission believes that Nasdaq’s prices near the inside market.’’ 119 aggregation characteristics of the proposed NQDS Prime, which will Two commenters, however, proposed rule change are consistent provide on a real-time basis, all questioned the need for the NODF.120 with Sections 11A(a)(1)(B) and individual attributable quote and order One of these commenters believed that 11A(a)(1)(C) of the Act.132 In particular, information at the three best price levels fragmentation was no longer a problem in Section 11A(a)(1)(B), Congress found displayed in the NODF,136 will help to in the Nasdaq market.121 Further, this that new data processing and address these concerns. NQDS Prime commenter argued that if the NASD was communications techniques create the will enhance the display of trading concerned about the fragmentation and opportunity for more efficient and interest and provide market participants transparency of pre-trade information, effective market operations.133 greater information in making order- the NASD should allow market The Commission believes that the routing decisions. The Commission participants to display all of their bids NODF has the potential to facilitate believes that this will provide investors and offers under their MMID.122 securities transactions by enhancing the with more options since market Another commenter argued that the display of trading interest. Currently, participants will be able to use this NODF would create a false perception of when Nasdaq receives a quote, it cannot information to access liquidity through liquidity in Nasdaq because orders discern whether that quote represents a Nasdaq or non-Nasdaq systems (such as below a market participant’s top of book single order or multiple orders at one proprietary links). will not be attributed to the firm price. Nasdaq Quoting Market representing the order.123 This Participants and UTP Exchanges can 1. Non-Attributable Quotes and Other commenter believed, as a result, that send Nasdaq only a single, two-sided Features liquidity will appear to reside in quote. In contrast, under the proposal, Under the proposed rule change, a Nasdaq, rather than with the broker/ Nasdaq Quoting Market Participants and SIZE MMID, representing the aggregate dealer that represents the liquidity in UTP Exchanges generally will have the size of the best-priced non-attributable Nasdaq.124 ability to transmit multiple orders at bids or offers, will be displayed in the One commenter also believed that the multiple price levels for display at their Nasdaq Quotation Montage along with NODF was unnecessary because ECNs discretion.134 In addition, the NODF has the other MMIDs for the Nasdaq and market makers have created their two other features designed to enhance Quoting Market Participants and UTP own limit order books, and that the the display of trading interest—the size Exchanges displaying attributable size. proposed NODF will not provide any of displayed interest will be aggregated The Commission received several additional capability to the market.125 at the best three price levels on both comment letters addressing this display Another commenter believed that the sides of the market and the Summary feature in response to the December 6, SuperMontage proposal did not provide Scan function will show the total 1999 notice.137 One commenter believed complete transparency because of its displayed size (attributable and non- that there is a risk that non-attributable anonymous display and reserve size attributable) for all levels below the first 135 As discussed in Section III.K, supra, the 116 See ITAC Letter; Congressman Fossella Letter; 126 See CFA Letter. SuperMontage will not be implemented until after APTC Letter; and Charles Schwab Letter; see also 127 See CFA Letter. decimals in the Spring of 2001. In a recent study, SRI Consulting found that with smaller minimum Bannon Letter and Island Letter. 128 See ICI Letter and ACIM Letter; see also ITAC 117 pricing increments, liquidity may be dispersed as See ITAC Letter. Letter. limit orders are spread over smaller price intervals. 118 See Bannon Letter; see also Senator Schumer 129 See ACIM Letter. Letter. See SRI Consulting, Assessing the Impact on 130 See Bloomberg Letter. Message Traffic of Trading Equities and Option in 119 See MSDW Letter. 131 15 U.S.C. 78o–3(b)(6), (b)(11). Decimal Increments (Executive Summary at p. 31) 120 See Bloomberg Letter and NexTrade Letter. 132 15 U.S.C. 78k–1(a)(1)(B)–(a)(1)(C). (April 16, 1999). Therefore, market participants may 121 See Bloomberg Letter. 133 15 U.S.C. 78k–1(a)(1)(B). want to see more price levels away from the BBO. 122 See Bloomberg Letter. 134 UTP Exchanges will be permitted only to send 136 See Amendment No. 8, supra 12. At least one 123 See Archipelago Letter. a single bid and a single offer for principal orders/ commenter supported the addition of NQDS Prime. 124 See Archipelago Letter. quotes, but may submit multiple agency quotes/ See STA Letter. 125 See NexTrade Letter. orders. See Proposed NASD Rule 4710(f). 137 See December 6, 1999 notice, supra note 4. VerDate 11 proprietary orders will be susceptible to Two commenters believed that these have established clearing arrangements manipulation because a market maker features will allow ECNs to deny access and credit standings monitored by the could post a small bid under its own to their quotes through SuperMontage to NASD and the National Securities MMID and post a larger sell order non-subscribing firms that do not pay Clearing Corporation (‘‘NSCC’’). UTP anonymously.138 Another commenter their fees.149 One of these commenters Exchanges have similar provisions to argued that because Nasdaq Quoting believed that ‘‘[s]anctioning the denial ensure financial responsibility. Market Participants and UTP Exchanges of quote access through SuperMontage Moreover, the Commission fully expects can display quotes/orders anonymously also conflicts with [b]est [e]xecution, as that the NASD will monitor the use of under the proposed rule change, a a firm who has been denied access may these quotes/orders with a view towards ‘‘moral hazard’’ might be created.139 The be unable to hit the inside bid or preventing manipulation. Finally, as commenter expressed concern that offer.’’ 150 discussed further below, the participants with weaker credit might As an initial matter, the Commission Commission notes that market ‘‘hide behind unattributable quotations notes that market makers currently can participants that wish to interact with a in times of market stress.’’ 140 Further, enter multiple quotes/orders by specific market participant still will be this commenter noted that because the submitting a quote/order to Nasdaq and able to direct or preference orders to solvency of a participant’s counterparty orders to multiple ECNs. Under the Nasdaq Quoting Market Participants and may be unknown, investor confidence Commission’s Order Handling Rules,151 UTP Exchanges, including ECNs. could be threatened.141 This commenter a market maker can place a better-priced also opined that the anonymous display order with an ECN anonymously 2. Reserve Size feature will deny viewers the without updating its quote to reflect the The proposed reserve size function opportunity to access secondary or better-priced order, as long as the ECN will allow Nasdaq Quoting Market tertiary quotations directly.142 In displays the order in the public market. Participants to publicly display part of addition, one commenter believed that Other market participants also may the full size of their order or interest, order entry firms could use the feature submit orders to ECNs and have their with the remainder held in reserve on to access ECNs without paying an access orders traded on an anonymous basis. a non-attributable basis.152 The reserve fee.143 As a result, market participants trading size function requires Nasdaq Quoting Another commenter pointed out that with ECN quotes currently are subject to Market Participants to initially display a the NASD has not revealed how it a certain level of uncertainty regarding minimum of 1,000 shares, and to refresh proposes to provide participants with their ultimate counterparty. The the displayed size by a minimum of transaction reports.144 This commenter SuperMontage proposal merely provides 1,000 shares each time the displayed stated that the counterparty to a market makers with the ability to size is decremented to zero. As transaction should be disclosed at the display multiple quotes in Nasdaq on an originally described in the December 6, time an order is executed, not at the end attributable and non-attributable basis, 1999 notice, reserve size would have of the trade day.145 This commenter which is consistent with the ability of been accessed based on time priority explained that disclosure of a market makers and other market and status as a market maker, automatic counterparty’s identity at the time of participants to display orders on ECNs execution ECN, or order delivery ECN. execution is critical in order for a today. Several commenters expressed market participant to monitor its The Commission believes that the use support for the reserve size feature.153 intraday credit risk exposure.146 of non-attributable quotes (i.e., SIZE One commenter felt that the reserve size In response to some of the issues MMID) in the SuperMontage has the feature would benefit investors,154 raised by commenters, the NASD has potential to promote the display of while another believed it would committed to assist market participants greater market interest and encourage minimize the adverse market price in their efforts to manage operational greater transparency in the Nasdaq impact associated with a larger-sized and credit risk.147 Nasdaq will affix the market. The ability to display non- order.155 Another commenter, however, MMID of the sender to all directed attributed market interest may suggested that the reserve size feature orders, delivered non-directed orders, encourage certain market participants to should be altered to provide market and delivered preferenced orders. submit larger quotes/orders, particularly participants with incentives to display Further, preferenced orders and non- institutions wishing to minimize the large size attributable quotations.156 directed orders that are executed against market impact of their orders. In response to the commenter, in a market maker or other market Furthermore, the Commission believes Amendment No. 4, the NASD added the participant that participates in the that the NASD has minimized the ‘‘size/time priority’’ characteristic to the automatic execution functionality of the concerns raised by commenters reserve size function to provide order system will result in an execution report regarding the identity of those with execution priority for orders with the immediately upon execution that whom they are trading by affixing the larger displayed size (after being identifies all of the parties to the trade. MMID of the sender on delivered orders refreshed out of reserve) over smaller This is true if a non-directed order is and identifying the counterparties in displayed sizes (refreshed out of reserve executed against an attributable order or execution reports. Moreover, because size), with time priority being given to a non-attributable order.148 only Nasdaq market makers, ECNs, and identically sized quotes.157 In addition, UTP Exchanges can enter non- the NASD revised its original Order 138 See ATD Letter. attributable orders into the system, the 139 See Bloomberg Letter. range of participants that are 152 Market makers must display the full size of 140 See Bloomberg Letter. responsible for non-attributable orders customer limit orders in some circumstances 141 See Bloomberg Letter. on their own behalf or for an pursuant to the Commission’s Order Handling 142 See Bloomberg Letter. Rules. 143 See Bloomberg Letter. anonymous customer is limited. All 153 See ITG Letter; ITAC Letter; and First Union 144 See Island Letter. Nasdaq Quoting Market Participants Letter. 145 See Island Letter. 154 See ITG Letter. 146 See Island Letter. 149 See STA Letter and Pershing Letter. 155 See ITAC Letter. 147 See Amendment No. 8, supra note 12. 150 See STA Letter. 156 See Goldman Sachs Letter. 148 See Amendment No. 8, supra note 12. 151 See 17 CFR 240.11Ac1–1(c)(5). 157 See Amendment No. 4, supra note 6. VerDate 11 Execution Algorithm so that it no longer market participants. In this regard, the and appropriate for the protection of distinguished between the reserve size Commission notes that ECNs have used investors and the maintenance of fair of order delivery and automatic reserve size features for years with and orderly markets to assure the execution ECNs.158 Instead, the reserve considerable success. economically efficient execution of size of market makers and ECNs that did Two requirements should ensure that securities transactions. The OCF should not charge a separate access fee received market participants continue to have an provide market participants with greater priority over ECNs that charged a incentive to display their quotes/orders. flexibility to reflect their buying and separate access fee. First, market participants must display selling interest at various price levels by In response to the NASD’s change in a minimum of 1,000 shares to use the allowing them to transmit multiple Amendment No. 4, one commenter reserve size feature. Second, all attributable quotes/orders at multiple questioned the Order Execution displayed quotations at the same price price levels, as well as non-attributable Algorithm’s size/time prioritization of level in the SuperMontage generally quotes/orders that conceal the identity reserve size.159 The commenter will have priority up to their displayed of the responsible participant until expressed concern that the proposed size over all reserve size at the same executed. algorithm would discourage market price level. Third, market forces and participants from displaying orders competition may encourage Nasdaq 1. Order Entry and Access greater than 1,000 shares.160 Another Quoting Market Participants to display Under the proposal, order entry firms, commenter believed that size/time greater size if the price/size/time market makers, ECNs, and UTP priority was inconsistent with the basic algorithm is widely used. In sum, the Exchanges will be able to access quotes/ premise of time priority and that the Commission concludes that Nasdaq’s orders by submitting directed or non- first quote accessed should maintain use of the reserve size feature is directed orders up to 999,999 shares in priority regardless of size.161 reasonable and could result in increased the OCF.170 Large orders may be In Amendment No. 7, the NASD again depth and liquidity in Nasdaq. The submitted as non-directed orders and revised the reserve feature to give equal Commission, however, expects the receive automatic execution, subject to priority to quotes/orders of ECNs that NASD to monitor trading to ensure the the possible application of a 5-second charge separate access fees if they proper use of the reserve size feature interval delay between successive price indicate that the price improvement and compliance with the requirements levels if the order is not categorized as exceeds the fee for that particular quote/ applicable to the use of reserve size. a Sweep Order or cannot be filled order.162 In further response to the B. Order Collector Facility completely at the inside price plus (or various concerns of commenters minus) two price ticks. concerning the Order Execution Under the proposal, the OCF will: (1) Five commenters expressed concern Algorithm, Nasdaq amended the Order Transmit to Nasdaq multiple quotes/ about access to the system.171 One of Execution Algorithm for non-directed orders and quotes/orders at multiple these commenters stated that the orders to allow market participants to price levels entered by Nasdaq Quoting SuperMontage, as proposed, was too take into account their objectives in Market Participants and UTP limited, and should permit all NASD executing their orders against the Exchanges;165 (2) accept orders to access members to enter non-attributable limit displayed and reserve size of Nasdaq quotes/orders displayed (as either orders in the system.172 One commenter Quoting Market Participants and UTP attributable or non-attributable) in both specifically expressed concern that Exchanges.163 Nasdaq now permits the NODF and the Nasdaq Quotation order entry firms would be excluded market participants to select one of Montage; and (3) unify Nasdaq’s from receiving automatic executions for three Order Execution Algorithms: delivery of Liability Orders to Nasdaq proprietary orders sent to the system.173 price/time priority; price/size/time Quoting Market Participants and UTP The Commission believes that the priority; and price/time priority that Exchanges, which should minimize the NASD has adequately addressed the accounts for ECN fees. potential for dual liability. Upon receipt commenters’ concerns that access to the As an initial matter, the Commission of an order seeking to access displayed proposed system is too limited. First, notes that all Nasdaq Quoting Market quotes/orders, the OCF will determine the NASD has stated that order entry Participants can use reserve size.164 As whether to deliver an order or an firms, as well as Nasdaq Quoting Market a result, the Commission believes that execution based on the manner in Participants and UTP Exchanges, may the reserve size feature should give which the market participant receiving enter either directed or non-directed market participants greater flexibility in the order participates in the Nasdaq orders intended for execution into the handling large orders. In particular, the market. For example, market makers OCF. Moreover, order entry firms reserve size could prove useful to will take automatic execution,166 and sending proprietary orders to the system institutions that wish to minimize the ECNs and UTP Exchanges will have the to access market maker quotes/orders market impact of their orders. Increased option of taking automatic execution or will receive automatic execution of participation should, in turn, enhance order delivery.167 those orders. Second, the Commission the depth and liquidity of the market for As discussed further below, the believes that it is reasonable for Nasdaq Nasdaq securities, to the benefit of all Commission believes that the proposed to limit the ability to display quotes/ OCF is consistent with Sections orders to registered market makers, 158 168 Id. Originally, the NASD proposed that non- 15A(b)(6) and 11A(a)(1)(C)(i) of the ECNs, and UTP Exchanges. These directed orders be processed pursuant to one Act,169 particularly with Congress’ algorithm. In Amendment No. 8, the NASD participants have certain obligations proposed to offer market participants three finding that it is in the public interest, algorithms from which to choose. See Amendment 170 Currently, Nasdaq can only handle orders up No. 8, supra note 12. 165 A UTP Exchange may transmit only a single to 9,900 shares. However, if a market participant 159 See ICI Letter. bid or single offer for principal quotes/orders, but enters an order for automatic execution that exceeds 160 See ICI Letter. may send multiple agency quotes/orders. See 9,900 shares, the OCF will break the order up into 161 See Traders Letter. Proposed NASD Rule 4710(f). multiples of 9,900 shares and execute the orders. 162 See Amendment No. 7, supra note 10. 166 See Proposed NASD Rule 4701(u). 171 See MPBS Letter; ITG Letter; ETA Letter; CHX 163 See Amendment No. 8, supra. 167 See Amendment 6, supra note 9. Letter; and ATD Letter. 164 See Proposed NASD Rules 4710(b)(1)(B); 168 15 U.S.C. 78o-3(b)(6). 172 See ITG Letter; See also MPBS Letter. 4710(b)(2); 4701(y), and 4701(t). 169 15 U.S.C. 78k-1(a)(1)(C)(i). 173 See ATD Letter. VerDate 11 under the Exchange Act, including undisplayed orders in the system. automatic refreshing and reopening of those under the Order Handling Rules. Further, the Commission notes that the the market maker’s quote for a normal Market makers in particular have NASD must comply with the Order unit of trading (generally 100 shares) at unique obligations under NASD rules, Handling Rules and the dissemination the lowest bid and highest offer such as the requirement to maintain of bids and offers. currently being displayed in that continuous two-sided markets. ECNs security should assist market makers in C. Quote Refresh and Revised SOESed- offer efficient display and execution the management of their quotes and also Out-of-the-Box Procedures systems for limit orders. Limiting the ensure a market maker’s continued ability to enter non-attributable limit Under the proposed rule change, participation in the market. Under the orders into the system to market makers market makers can refresh size and NASD’s current rules, if a market maker and ECNs encourages their participation price using the QR function if their fails to restore its quote in a security in the Nasdaq market, which quotes are decremented to zero. If a within five minutes after the quote is strengthens the Nasdaq market as a market maker uses QR, but has an decremented to zero, then, subject to whole. Accordingly, the Commission attributable quote/order in the system certain exceptions, that market maker is concludes that the OCF is reasonably that is priced at or better than the quote/ prohibited from re-entering its quote for designed to provide order entry firms, as order created by QR, Nasdaq will 20 days. The current rule thus well as market makers, ECNs, and UTP display the better-priced or equally- effectively eliminates the participation Exchanges, with prompt access that is priced attributable quote/order in the of market makers for 20 days (also not unfairly discriminatory to the system. If a market maker is not using known as being ‘‘SOESed-out-of-the- current inside market in Nasdaq QR and the market maker has given box’’). In contrast, the revised securities.174 By facilitating the prompt Nasdaq multiple attributable quotes/ procedures should help to ensure the and efficient execution of orders at the orders, Nasdaq will display the market presence of liquidity providers in the best available prices in Nasdaq, the OCF maker’s next best-priced attributable market. should strengthen the Nasdaq market, quote/order if its displayed quote/order The Commission believes that Nasdaq which will benefit market participants has been decremented to zero. In has struck an appropriate balance by and investors. addition, if a market maker’s quote is eliminating the SOESed-out-of-the-box closed for three minutes, and the market penalty while adding features to assist 2. Non-Marketable Limit Orders maker has failed to transmit a revised market makers with their quote As originally proposed, marketable attributable quote/order, the market management, and by reducing the time limit orders entered into the maker’s quote will be automatically that a quote may be in a closed state SuperMontage that became reopened at the lowest bid and highest from five minutes to three minutes. The unmarketable prior to execution would offer currently being displayed for a Commission fully expects, however, have been held in the queue for 90 normal unit of trading. that the NASD will monitor the use of seconds to enable the order to retain One commenter applauded the the system defaults by market makers to time priority should it become NASD’s decision to reduce the time ensure that they do not become a marketable again. One commenter period that market makers have for surrogate for meaningful market making, opined that this treatment of limit updating their quotes from five to three and that the NASD will reevaluate the orders would violate the Commission’s minutes.177 This commenter and penalties against market makers for Order Handling Rules.175 another commenter, however, believed failure to properly maintain two-sided Under Amendment No. 8, non- that the 3-minute grace period during quotes if there is a decline in the overall directed orders entered by order-entry which a quote could be closed was too quality of market making, particularly firms must be designated as immediate long.178 In addition, the commenter during market volatility. or cancel orders, while orders entered believed that the NASD’s proposal to by Nasdaq Quoting Market Participants restore a quote after the three-minute D. Order Execution Algorithms and UTP Exchanges may be designated grace period to the outside displayed The originally proposed Order as immediate or cancel. As a result, if quote/order was contrary to the NASD’s Execution Algorithm, described in the an order-entry firm enters a marketable policy on autoquotes reflected in NASD December 6, 1999 notice, distinguished limit order that becomes unmarketable IM 4613.179 Another commenter opined between market makers and ECNs that after entry into the system, Nasdaq will that there could be a large number of participated in the automatic execution return the order (or the unexecuted market makers that are not in the market functionality of the system and ECNs 176 portion thereof) to the entering party. as their size is decremented to zero, that participated in the order delivery If a Nasdaq Quoting Market Participant particularly during times of significant functionality of the system. Market or UTP Exchange enters a marketable market volatility.180 participants that received automatic limit order that becomes unmarketable The Commission believes that the QR executions would have been given after entry and is not designated function of the OCF, together with the priority in the Order Execution immediate or cancel, the system will reserve size refresh function, should Algorithm. reformat the order and display it as a help market makers maintain Six commenters criticized the NASD’s quote/order on behalf of the entering continuous, two-sided quotes and proposed Order Execution participant. thereby facilitate market liquidity. In Algorithm.181 Three of these The Commission believes that the particular, the SuperMontage’s commenters specifically opposed the NASD’s amendment addresses concerns Order Execution Algorithm’s about the SuperMontage retaining 177 See ETA Letter. prioritization of automatic execution 178 See ETA Letter and MSDW Letter. 174 Several ECNs believe that the automatic 179 See ETA Letter. The Commission notes that 181 See Bloomberg Letter; ACIM Letter; Merrill execution feature of the OCF, among other things, NASD IM 4613 bans automated quote updates or Lynch Letter; Instinet Letter; NexTrade Letter; and is anti-competitive. These comments are discussed tracking of inside quotations in Nasdaq subject to CHX Letter. One commenter believed that by in Section V.I, infra. two exceptions. The Commission notes that the ranking customer orders by the status of the 175 See Archipelago Letter (citing Exchange Act revised SOESed—Out-of-the-Box procedures are not delivering broker, the Order Execution Algorithm Rule 11Ac1–1(b)(1)(i)). related to the inside market. impedes efficient order interaction. See ACIM 176 See Amendment No. 8, supra note. 180 See Island Letter. Letter. VerDate 11 participants (i.e., market makers and to the Order Execution Algorithm.188 marker makers would put investors’ ECNs that accept automatic executions) Four commenters suggested that the orders entered on ECNs behind market over order delivery participants.182 Nasdaq system should be premised on makers to avoid interacting with In response, the NASD amended the strict price/time priority.189 Another ECNs.198 Another commenter believed Order Execution Algorithm, eliminating commenter suggested that the NASD that the default algorithm, in part, the distinction between automatic replace the Order Execution Algorithm provided ‘‘a level of institutional and execution participants and order with a purely directed system, similar to regulatory legitimacy to ECN access delivery participants.183 In lieu of this SelectNet.190 One commenter believed fees, even though the vast majority of distinction, the NASD proposed to give that access fees should not affect the market participants consider those fees ECNs that do not charge a separate determination of the BBO.191 invalid and have never had the quote access fee priority over those that In response to these commenters, in opportunity to debate or challenge do.184 After receiving comments on this Amendment No. 8,192 the NASD them.’’199 Two commenters also 185 proposed change, the NASD again amended the proposal to give market believed that investors’ orders should be revised the Order Execution participants that enter non-directed executed against first.200 In addition, 186 Algorithm. orders several options as to how their four commenters generally supported In Amendment No. 7, the NASD orders will interact with quotes/orders executions based on strict price/time proposed that the Order Execution in Nasdaq: price/time; price/size/time; priority.201 Algorithm would execute non-directed price/time that accounts for ECN access orders, based on time priority, against: fees; and preferencing at the best Seven commenters also objected to (1) The displayed quotes/orders price.193 The SuperMontage will be the addition of the price/size/time (attributable and non-attributable) of programmed to default to the price/time algorithm proposed in Amendment No. market makers, ECNs that do not charge priority algorithm for non-directed, non- 8.202 Two of these commenters stated a separate quote access fee to non- preferenced orders. With all three that granting size priority ahead of time subscribers, ECNs that charge a separate algorithms for non-directed, non- priority would negate the incentive for quote access fee to non-subscribers but preferenced orders, the system will price improvement.203 In addition, one indicate that the price improvement make an exception for orders entered by of the commenters argued that the price/ offered by their quote/order exceeds the a Nasdaq Quoting Market Participant size/time algorithm would offer little, if separate quote access fee, and non- when that Nasdaq Quoting Market any, benefit because, under the other attributable quotes reflecting agency Participant is at the inside market.194 two algorithms, participants would still interest of a UTP Exchange; (2) One commenter supported the have the ability to sweep through all displayed interest of ECNs that charge a NASD’s revision of the system’s orders at a given price level.204 Further, separate quote access fee and do not algorithms stating that generally this commenter noted that participants indicate that the price improvement ‘‘market participants are better off when could utilize directed orders to send an offered by their quote/order exceeds the they can make informed choices.’’195 order to a participant displaying greater separate quote access fee; (3) reserve Another commenter also supported the size.205 Another commenter believed size of market makers, ECNs that do not NASD’s elimination of the per se that the price/size/time algorithm would charge a separate quote access fee, and treatment of ECN order access fees.196 handicap small retail traders that rely ECNs that indicate that the price However, three commenters stated on limit orders to avoid the uncertain improvement for their quote/order is in that giving participants a choice of execution risk of market orders sold to excess of their quote access fee (in size/ algorithms was an unacceptable wholesale trading interests.206 One time priority); (4) reserve size of ECNs compromise because participants still commenter stated that the price/size/ that charge a separate quote access fee would be offered an algorithm that time algorithm was an unacceptable 197 and do not indicate that the price discriminated against ECN orders. effort to attract larger orders.207 improvement offered by the specific Specifically, one commenter believed quote/order exceeds the separate quote that it would be market makers, not As discussed in more detail below, access fee (in size/time priority); and (5) investors, making this election, and that the Commission finds that the Order principal quotes of UTP Exchanges.187 Execution Algorithms are consistent 208 In response to these changes, certain 188 See BRUT Letter; Instinet Letter; ACIM Letter; with Section 15A(b)(6) of the Act commenters again expressed objections Bradley Letter; Archipelago Letter; Phlx Letter; because they do not unfairly Scudder Kemper Letter; CFA Letter; and Bloomberg discriminate against customers, issuers, Letter. These comments are discussed in detail in 182 See Instinet Letter; Bloomberg Letter; and Section V.D.3, infra. brokers or dealers. The Commission also NexTrade Letter. Instinet suggested that the inferior 189 See ACIM Letter; Archipelago Letter; TRPA finds that the algorithms are consistent priority of order delivery participants will (1) Letter; and Scudder Kemper Letter. with Section 11A of the Act 209 in that impair the ability of participants to obtain best 190 execution for their customers; and (2) improperly See Archipelago Letter. they promote the creation of a national influence investors’ choices of trading venues and 191 See TRPA Letter. 198 inhibit the interaction of pools of liquidity. 192 See Amendment No. 8, supra note . See Investment Companies Letter. 183 See Amendment No. 4, supra note 6. 193 Market makers and ECNs will not lose time 199 See STA Letter; see also Pershing Letter. 184 For a discussion of how ECNs are treated priority for updating trading interest to display 200 See Vanguard Letter and Instinet Letter. under the Order Execution Algorithms, see Section greater size. Proposed NASD Rule 4707(a)(2). 201 See Vanguard Letter; Security Investment V.D.3, infra. One commenter expressed support for 194 See Section V.D.2, infra, for a discussion of Company Letters; ICI Letter; and NY Letter; see also the Order Execution Algorithm’s basic foundation, preferenced orders. Scudder Kemper Letter. execution of orders based on price/time priority, 195 See CHX Letter. See also, discussion at 202 See ICI Letter; ACIM Letter; Scudder Kemper stating that this would encourage competition. See Section V.D.4 regarding the commenter’s concerns Letter; Suss Letter; Birmingham Letter; Adriaanse Bannon Letter. regarding the treatment of UTP Exchanges. Letter; and Vanguard Letter. 185 196 These comments are discussed in detail in See ICI Letter. This commenter also supported 203 See ICI Letter and Vanguard Letter. See also Section V.D.3.a, infra. maintaining time priority when a market Adriaanse Letter. 186 See Amendment No. 7, supra note 10. participant increases its displayed size. See also 204 See ICI Letter; see also Vanguard Letter. 187 See Amendment Nos. 4 and 7, supra notes 6 CFA Letter (supporting price/time default 205 See ICI Letter. and 10. The SuperMontage would have initially algorithm). 206 executed non-directed orders of Nasdaq Quoting 197 See CFA Letter; Investment Companies Letter; See ACIM Letter. Market Participants against their own quotes/orders and NY Letter; see also Scudder Kemper Letter; 207 See Scudder Kemper Letter. that are at the BBO. Adriaanse Letter; and Silverman Letter. 208 15 U.S.C. 78o-3(b)(6). VerDate 11 market system by helping to create the The Commission notes that today best execution.213 Without the opportunity for more efficient and most orders in Nasdaq securities are internalization feature, one commenter effective markets, maintain fair and executed directly between Nasdaq wrote, ‘‘the [proposed Nasdaq] system orderly markets, and assure the participants, not using Nasdaq systems. begins to look like a central limit order economically efficient execution of No price/time priority rules apply to book [‘‘CLOB’’],’’ which the commenter securities transactions. Although none this trading, other than a market maker’s opposed.214 of the algorithms maintains pure price/ duty to protect its customer limit orders Five commenters, however, time priority, they afford price/time before trading as principal. While price questioned or opposed the proposal’s priority to a wider range of orders than priority is generally honored as a market internal matching provision.215 One of is currently available in Nasdaq. principle in executing orders outside of these commenters opined that the The Commission believes that the Nasdaq’s systems, time priority is not internalization of orders could impede NASD’s decision to retain the algorithm accorded to quotes in this trading. Even access to liquidity and price discovery that executes/delivers orders on a price/ after SuperMontage is implemented, for market participants, especially if a time priority basis, taking into account many orders probably will be executed significant amount of a particular ECN quote access fees, as one of the outside of SuperMontage free from time security’s daily volume is algorithms offered, is acceptable. The priorities. internalized.216 Two commenters stated Commission does not believe that the The Commission does not believe that that market makers receiving directed proposed algorithm unfairly entering orders into the SuperMontage orders should be under an affirmative discriminates against ECNs, particularly should be mandated. Therefore, obligation to seek price improvement.217 in light of the fact that participants may requiring time priority within One of the two commenters also stated choose either of two other algorithms SuperMontage runs the risk of reducing that the internalization function that do not consider ECN fees.210 The market participants’ willingness to enter provided a disincentive for market choice rests with the participant orders into SuperMontage, undermining makers to price improve.218 This entering an order. By offering three its effectiveness. For this reason, the commenter suggested that the algorithms, participants may interact Commission believes that providing the internalization function, combined with with the SuperMontage based on their choice of a price/size/time priority the inferior priority of ECNs that charge preferences and priorities. For example, algorithm is a statutorily-permissible separate access fees, would reduce at least one ECN commenter argued balance between encouraging liquidity, market maker incentives to better the accommodating the preferences of 219 prior to Amendment No. 8 that market national BBO. Another commenter market participants, and maintaining participants frequently place greater expressed strong opposition to the time priority. Furthermore, while this importance on price improvement internalization function of the algorithm may reduce the incentive to offered by ECNs than on the access fees SuperMontage, arguing that it was an be the first with the better price, it may they charge, and therefore, they prefer to example of the proposal’s bias towards encourage a Nasdaq Quoting Market 220 interact with ECNs.211 Thus, market maker interests. Participant to display greater size. By presumably, these market participants The Commission recognizes that, providing this choice of algorithms, would use the SuperMontage’s default today, trading interest in the Nasdaq SuperMontage will allow broker/dealers algorithm based on price/time priority market is largely divided among to manage their orders in SuperMontage to interact with ECNs that offer price different market centers. It is primarily to obtain the best execution as they improvement. For the same reason, the a dealer market, in which multiple would in the dealer market where time Commission believes that the default market makers compete for order flow priority does not apply, while still algorithm is acceptable. Those market based on a variety of factors, including increasing order interaction within participants that elect to take into internalization and payment for order SuperMontage. The Commission also 221 account ECN fees may do so under the flow arrangements. Under these believes that the choice of algorithms price/time algorithm that takes into arrangements, orders are routed to a could promote greater competition and account ECN fees. particular market maker that has an innovation among market centers and opportunity to execute the orders as The Commission also concludes that market participants. the NASD’s algorithm based on price/ principal without facing significant size/time priority is consistent with the 1. Matching Against a Participant’s Own competition from investors or other statute. This algorithm will assist Quote/Order at the BBO 213 See STA Letter; MSDW Letter; and STANY participants in quickly assessing All three Order Execution Algorithms Letter. liquidity in a dynamic trading first match orders entered by a Nasdaq 214 See STANY Letter. environment, while rewarding liquidity Quoting Market Participant against its 215 See ICI Letter; Instinet Letter; CFA Letter; providers, particularly in a decimals own quote/order on the other side of the Bloomberg Letter; and ACIM Letter. environment where liquidity may be market if the Nasdaq Quoting Market 216 See ICI Letter; see also Scudder Kemper Letter. 217 spread over a greater number of trading Participant is at the BBO. Several See ACIM Letter; and CFA Letter. increments. The Commission 218 See ACIM Letter; see also Scudder Kemper commenters expressed support for this Letter. acknowledges concerns raised by internalization feature of the Order 219 See ACIM Letter; see also Bradley Letter. commenters that the choice of Execution Algorithm. 212 The 220 See Instinet Letter; see also Bloomberg Letter algorithms lessens the importance of commenters believed that matching a and Bradley Letter. time priority, and thus may provide less market participant’s order against the 221 See Securities Exchange Act Release No. incentive to aggressively enter better- 42450 (February 23, 2000), 65 FR 10577 (February market participant’s quote/order if the 28, 2000). In September 1999, for example, there priced quotes. However, as stated above, market participant is at the BBO will was an average of 11.4 market makers per Nasdaq the three algorithms proposed by the enable market participants to better issue. NASD, VerDate 11 dealers who may wish to interact with In response to the commenter, the orders only will be executed at the BBO, the directed order flow. Thus, presently, NASD amended the proposal to include and only if the preferenced Nasdaq market makers internalize order flow a new class of order called a preferenced Quoting Market Participant or UTP without ever providing access to any order.225 The NASD proposed two Exchange is quoting at the BBO at the other market participants publicly possible approaches to preferenced time of execution or delivery. displaying their quotes/orders.222 It is orders: preferenced orders with no price Several commenters objected to the unlikely that market makers will enter restrictions (Alternative A) and addition of preferenced orders.230 Two customer market orders into preferenced orders only at the best price commenters believed that market SuperMontage rather than simply (Alternative B). makers will use preferenced orders to internalizing them directly. Still, the Two commenters supported avoid order routing priorities (such as internal matching function attempts to Alternative A, because it would provide price/time) in Nasdaq.231 Two encourage market makers to enter these flexibility.226 Another commenter, who commenters believed that because orders into SuperMontage where did not specifically support Alternative preferenced orders will allow market superior quotes would have some A, opposed the adoption of Alternative participants to trade around price- chance of interacting with them. The B because it would constitute a first step setting orders, broker/dealers will be Commission believes that the in transforming the SuperMontage into able to enter into payment for order flow SuperMontage’s internalization feature a CLOB.227 However, other commenters agreements more easily.232 Another is a reasonable attempt to encourage disagreed, claiming, for example, that commenter also argued that because Nasdaq Quoting Market Participants to allowing market makers to preference preferenced orders will diminish price/ include their customer orders in a orders away from the BBO would give time priority, fewer investors will enter system that will provide greater them the ability to trade with each other limit orders into the SuperMontage, transparency and accessibility to other and ignore better-priced quotes/orders thus decreasing liquidity in the participants, and could lead to a more offered by other participants.228 The system.233 transparent and seamless integration of NASD responded by withdrawing The Commission notes, first, that the internalizing market makers with the Alternative A.229 preferencing feature allows any market rest of the marketplace. Under the current proposal, a market participant to designate those market The Commission reiterates, however, participant entering a preferenced order participants with whom it wishes to 234 that its approval of this aspect of the must designate by MMID the Nasdaq transact on a Liability Order basis, proposal is based on the structure of the Quoting Market Participant or UTP while ensuring that its customers existing dealer market and the voluntary Exchange against which the order is to receive executions at the BBO. Second, nature of the SuperMontage. The be executed or delivered. The preferenced orders allow ECNs, UTP Commission also reiterates its long- preferenced order will be entered into Exchanges, and market makers to accept standing position that, while a broker the non-directed order process, and will Liability Orders designated for them does not necessarily violate its duty of be considered a Liability Order. without incurring double liability since best execution by internalizing its Preferenced orders will be processed in these orders will be processed in the agency orders, the duty also is not the same queue as non-directed orders. non-directed order queue. This may necessarily satisfied by routing orders to Additionally, like non-directed orders, a encourage market participants to a market center that merely guarantees preferenced order will be delivered as display larger size quotations and an execution at the national BBO an order to an ECN or UTP Exchange thereby increase liquidity in the market. without taking into account the that does not participate in the Third, the Commission notes that this is 223 possibility of price improvement. automatic execution functionality of the just one of the delivery options available system, or will be delivered as an to market participants and that market 2. Preferenced Orders participants also may send directed execution against market makers as well Prior to Amendment No. 8, one orders, non-directed non-preferenced as ECNs or UTP Exchanges that choose commenter recommended bringing back orders, and orders outside the preferencing, arguing that it would to accept automatic executions. When a preferenced order is next to SuperMontage (via private links) using, separate quotation collection and be executed within the non-directed in part, data from NQDS Prime. accessing technologies, because ‘‘market The Commission also notes that order queue, the preferenced order will participants would be able to respond to preferenced orders will not duplicate be executed (or delivered for execution) quotations in the market place without the features offered by directed orders. placing their orders in the against the preferenced Nasdaq Quoting These orders differ significantly. SuperMontage ECN order book. Market Participant or UTP Exchange to Directed orders will always be delivered Accordingly, participation in the which the order is being directed only for a response (e.g., accept or decline), SuperMontage could then more if the Nasdaq Quoting Market as opposed to an automatic execution, appropriately be said to be Participant or UTP exchange is at the and directed orders will not decrement voluntary.’’ 224 BBO up to the displayed and reserve a quote. Preferenced orders, on the other size. If the preferenced Nasdaq Quoting hand, will be Liability Orders processed 222 According to the NASD, only 26% of the share Market Participant or UTP Exchange is volume and 36% of trades in Nasdaq are executed not at the BBO when the preferenced 230 See Instinet Letter; NY Letter; CFA Letter; ICI using SOES or SelectNet. See e-mail to William order is next to be executed or Letter; Investment Companies Letter; ACIM Letter; Atkinson, Office of Economic Analysis, Birmingham Letter; Adriaanse Letter; and Vanguard Commission, from Michael Edleson, Senior Vice delivered, the preferenced order will be Letter. President, Chief Economist, NASD, dated August returned to the entering participant. 231 18, 2000. Thus, under this approach, preferenced See Instinet Letter; NY Letter; see also 223 See Securities Exchange Act Release No. Investment Companies Letter; Adriaanse Letter; and 42450 at notes 48 and 49 and accompanying text, Vanguard Letter. 225 See Amendment No. 8, supra note 12. 232 supra note 221; see also Securities Exchange Act See CFA Letter and ICI Letter. 226 Release No. 35751 (May 22, 1995), 60 FR 27997 See CHX Letter and STA Letter. 233 See Vanguard Letter. (May 26, 1995) (‘‘Manning II’’) (prohibiting market 227 See Bloomberg Letter. 234 The Commission notes that a Nasdaq Quoting makers from trading ahead of their customer limit 228 See Instinet Letter; ACIM Letter; CSE Letter; Market Participant or UTP Exchange may elect not orders in Nasdaq securities). Scudder Kemper Letter; and NY Letter. to take a directed order on a Liability Order basis. 224 See Bloomberg Letter. 229 See Amendment No. 9, supra note 14. See Proposed NASD Rule 4710(c). VerDate 11 in time sequence (like non-directed access fees priority over ECNs that negative impact on best execution and orders), will be delivered to the quote/ charge separate access fees.236 The the diminished opportunities for price order, or will be automatically executed NASD stated that this prioritization was improvement that would result from against the quote/order of a market consistent with the practice of many giving ECNs that charge order access participant, and will decrement the size market participants to route their orders fees inferior priority. Similarly, Island of a quote/order. Based on these to market makers that do not charge a argued that it was inconsistent for the differences, the Commission believes fee before routing to ECNs that do, in NASD to claim, on one hand, that ‘‘the that directed orders and preferenced order to ensure that they incur the de minimus access fee that ECNs orders will provide participants with lowest possible trading costs consistent typically charge warrants consideration distinct features from which they may with best execution principles.237 under the principles of best execution,’’ choose, depending on their needs. Six commenters addressed this while on the other hand refusing to It is highly unlikely that orders change to the proposal.238 Two acknowledge the price improvement, subject to payment for order flow will commenters agreed with the NASD that however small, that ECNs generate for be preferenced through SuperMontage it is appropriate to give the orders of investors by providing a rounding rather than routed directly to market ECNs that do not charge fees priority indicator of ECN quotations that better makers. Still, those orders that are over those that do because the ECNs that the inside market.244 preferenced will not freely interact with charge fees provide an inferior In response, the NASD revised the limit orders and quotes in execution price.239 One of these Order Execution Algorithm to allow an SuperMontage, and so will not commenters stated that, ‘‘by definition, ECN to offset the price improvement for encourage aggressive quoting in ECNs that are charging access fees the particular quote/order against the SuperMontage, as noted by commenters. should lose their standing as their order access fee for purposes of determining But, here again, SuperMontage will be a is effectively an inferior price.’’240 An price priority. Where price voluntary system operating in a market earlier commenter on the original improvement exceeds the fee charged to with no general time priority. Orders proposal also suggested that any access non-subscribers, the ECN quote would that might be preferenced within fees charged by ECNs should be be on parity with the quotes/orders of SuperMontage could also be routed reflected in their displayed quote so that market makers, ECNs that do not charge directly to market makers and ECNs other market participants could make a separate fee, and the non-attributable outside of SuperMontage. Nasdaq informed order routing and best agency quotes/orders of UTP evidently determined that preferenced execution decisions.241 Exchanges.245 The NASD also orders otherwise would simply be Four commenters, however, objected represented that if, in the decimals executed outside of SuperMontage, and to the priority rules and disagreed with environment, ECNs change the manner chose to accommodate them within the NASD’s rationale.242 Instinet, for in which they charge fees and develop SuperMontage. example, argued that ECNs frequently the capability to reflect access fees in The proposal now requires the offer a better price than market makers their published quotes, the NASD recipient of the preferenced order to be at the national BBO, even after access would give these ECNs the same priority quoting at the BBO, which encourages fees have been deducted from the for non-directed orders as market maker Nasdaq Quoting Market Participants or execution price.243 Instinet believed that quotes/orders and non-attributable UTP Exchanges to at least quote as well the Order Execution Algorithm would agency quotes/orders of UTP as the best quote to receive these orders. result in an anti-competitive trading Exchanges.246 Further, the NASD Thus, the requirement encourages better environment because it was based on committed to re-examine the Order quotes from these participants. the false assumption that ECNs that Execution Algorithm if, after decimals In all, while the Commission charge fees provide inferior executions, are implemented, Nasdaq quotation recognizes that preferenced orders do and because the Nasdaq system has no increments are finer than one penny. not create as strong incentives to quote mechanism to identify an ECN’s true Should this occur, the NASD would aggressively in SuperMontage as would price. Instinet also stated that market determine whether it is prudent and strict time priority, there is substantial participants appear to place greater feasible to rank orders based on doubt whether these orders would be importance on price improvement quotation increments of less than one entered in SuperMontage at all without opportunities than on ECN access fees. penny.247 the preferencing feature. And, by In addition, Instinet asserted that the Several commenters expressed preferencing these orders through amended Order Execution Algorithm objections to Amendment No. 7 as it SuperMontage, order entry firms can failed to take into account the general pertained to ECN fees.248 Specifically, provide special handling to difficult one commenter stated that the algorithm orders while encouraging recipients to 236 The NASD’s original proposal gave priority to was based on the assumption that access maintain competitive quotes. The participants that accepted automatic execution over fees affect a dealer’s decision to hit a bid those that accepted order delivery. In response to 249 Commission’s approval of this aspect of commenters, in Amendment Nos. 3 and 4, the or take an offer. This commenter the Order Execution Algorithms is NASD amended the Order Execution Algorithm. pointed out that dealer bids often predicated on the context of the existing One commenter stated that the amended Order ‘‘remain at a specific price while a dealer market. Execution Algorithm offered ‘‘some improvement,’’ market maker sells stock at the same but it was still discriminatory because UTP price in the ECNs, accepting their fee. 3. ECNs Exchanges would be executed behind market makers. See Bloomberg Letter. The dealers have the opportunity to a. Order Execution Algorithms 237 See Amendment No. 4, supra note 6. trade net but choose the liquidity and In Amendment No. 4, the NASD 238 See CHX Letter; Bannon Letter; Instinet Letter; Archipelago Letter; Bloomberg Letter; and Island 244 amended the original Order Execution See Island Letter. Letter. 245 See Amendment No. 7, supra note 10. 235 Algorithm to give market makers and 239 See CHX Letter and Bannon Letter. 246 See Amendment No. 6, supra note 9. ECNs that do not charge separate quote 240 See Bannon Letter. 247 Id. 241 See ITG Letter. 248 See Instinet Letter, ACIM Letter, BRUT Letter; 235 Market makers are prohibited from charging 242 See Instinet Letter; Bloomberg Letter; Scudder Kemper Letter; Bradley Letter; Archipelago access fees under the Firm Quote Rule. See Archipelago Letter; and Island Letter. Letter; CFA Letter; and Bloomberg Letter. Exchange Act Rule 11Ac1–1. 243 See Instinet Letter. 249 See Scudder Kemper Letter. VerDate 11 anonymity of the ECNs instead in Nasdaq to impose any methodology of protecting the time priority of the exchange for the fee.’’ 250 prioritization within the system on originally entered quantity. Subsequent Various commenters suggested that factors other than displayed price.’’ 260 non-execution decreases in size will be the Order Execution Algorithm was One commenter also questioned the deducted from individually stamped unfairly discriminatory. For instance, NASD’s rationale for the need of the components in reverse time priority (i.e., one commenter stated that the revised algorithm.261 The commenter opined the last entered size component will be algorithm was discriminatory since the that firms, not investors, pay the access exhausted first). only fees included were ECN fees.251 fees charged by ECNs and, therefore, it One commenter complained that the The commenter believed that the need is not true that individuals who execute revised Order Execution Algorithms fail for this treatment was a particular trade on an ECN that to provide a real choice, since market unsubstantiated.252 Another commenter charges an access fee automatically makers will ‘‘inevitably choose the objected to the manner in which the receive a clearly inferior price.262 In algorithm that allows them to avoid NASD proposed to determine whether addition, the commenter believed that, interacting with investor orders on an ECN offered price improvement net as a result of rounding, even in a ECNs as ECNs charge access fees.’’ 268 of its access fee, and therefore could be decimals environment, investors may be Another commenter questioned the treated on par with market makers.253 denied access to a better price.263 NASD’s justification for taking into This commenter stated that the In addition, four commenters believed account ECN fees under the theory of proposed algorithm will use an ECN’s that the algorithm unfairly penalized ‘‘best execution.’’ 269 This commenter net price when the ECN’s gross price is order delivery ECNs that enter an order believed that the Commission’s equivalent to, and the net price is at one quantity and then increase size to approval of this theory ‘‘suggests that inferior to, other orders displayed in add an additional quantity to reflect one brokers must now consider market Nasdaq, but will use an ECN’s gross or more customer limit orders.264 access fees charged to brokers in price when the gross price is equivalent Specifically, two of these commenters connection with their order routing to, and the net price is superior to, all believed that ECNs were treated unfairly decisions[,]’’ including payment for other orders in Nasdaq.254 under the algorithm if they either order flow.270 Further, this commenter Two commenters suggested that the reduced the order size or placed or noted that the algorithm fails to ‘‘give proposed amendment would negatively changed an order on the other side of greater priority to ECN orders that offer affect price competition and result in the market for the security.265 The ‘net’ price improvement (after taking wider spreads. In particular, the commenters believed that, under the into account access fees) over other commenters noted that market makers current algorithm, the changes would orders displayed at the same price. would have no incentive to provide take away a market maker’s or ECN’s * * * and fails to distinguish between price improvement at the national established time priority.266 ECNs that charge different access BBO.255 One commenter stated that In response to commenters, the NASD fees.’’ 271 Five commenters also believed ECNs should be given top priority if amended the Order Execution that the algorithms fail to protect the their orders, when factoring in price Algorithm to provide three alternative standing of investor orders displayed on improvement, represent the best bid or Order Execution Algorithms for Nasdaq through ECNs.272 offer, and that all limit orders should be accessing quotes/orders in the The Commission concludes that the processed in strict price/time priority SuperMontage. These alternatives are Order Execution Algorithms and time without regard to ECN access fees.256 based on price/time priority, price/time priority protection for size increases are Another commenter also objected to priority considering quote access fees, consistent with Section 15A(b)(6) of the providing ECNs with execution parity and price/size/time priority. Further, Act 273 in that they remove impediments only when their price improvement the NASD amended the proposal to give to and perfect the mechanism of a free exceeds their fee.257 parity to ECNs that charge quote access and open market. These alternatives One commenter suggested that the fees when the price improvement on a will give market participants greater proposal would ‘‘unwind the SEC’s particular quote/order at least equals the flexibility in determining how their order-handling rules by pushing a fee under the price/time priority option orders will be executed based on significant majority of ECNs to the back that takes ECN fees into account. In individual preferences and priorities of Nasdaq’s priority queues despite a addition, the NASD responded to and should provide broker/dealers with record of publishing the market’s best commenters by protecting the time greater opportunities to take into prices with far greater frequency than priority of Nasdaq Quoting Market account known fees and possible price Nasdaq market makers.’’ 258 Another Participants that change their displayed improvement in choosing how to obtain commenter stated that the proposal to trading interest by increasing displayed the best execution for an order. If ECNs have ECNs report price improvement size.267 As amended, the system will in fact offer better prices than the quote, within their quote is ‘‘unrealistic’’ in a maintain the original time stamp for the even after taking into account their fees, ‘‘dynamic order environment.’’ 259 This original quantity and assign a separate then order entry firms may choose the commenter also believed that if Nasdaq time stamp for the augmentation, thus algorithm that ignores ECN fees, or ‘‘is to become a for-profit central preference them directly. If ECN fees execution center, it is inappropriate for 260 See BRUT Letter. predominate over their price 261 See CFA Letter. improvement, order entry firms likely 262 250 See Scudder Kemper Letter. See CFA Letter. will choose the algorithm that takes 263 251 See Bloomberg Letter. See CFA Letter. ECN fees into account. This is especially 264 See Bloomberg Letter; Instinet Letter; Scudder 252 See Bloomberg Letter. Kemper Letter; and TRPA Letter. 253 See Archipelago Letter. 268 265 See Bloomberg Letter and Instinet Letter. See Instinet Letter; see also CFA Letter and NY 254 See Archipelago Letter (see examples provided 266 See Bloomberg Letter and Instinet Letter. Letter. in footnote 11). 269 267 See Amendment No. 8, supra note 12. Under See Island Letter. 255 See Instinet Letter and ACIM Letter. 270 the prior proposal, if a market participant chose to See Island Letter. 256 See Instinet Letter. give Nasdaq a quote instead of order detail, the 271 See Island Letter; see also CFA Letter. 257 See BRUT Letter. market participant would have lost time priority to 272 See Instinet Letter; Suss Letter; Birmingham 258 See ACIM Letter. its quote when it added to size. At least one Letter; and Adriaanse Letter; and CFA Letter. 259 See BRUT Letter. commenter supported this change. See STA Letter. 273 15 U.S.C. 78o(b)(6). VerDate 11 true given that the orders most likely to However, until such time as a separate fee, and agency interest of be routed through SuperMontage will be SuperMontage uses quoting increments UTP Exchanges. on behalf of the market makers that are small enough to reflect all The Commission notes that while themselves or institutional or potential ECN fees and price quotes/orders generally will be sophisticated traders that can well judge improvement alternatives, it is not comparable if fees are displayed in the whether ECN price improvement is possible to reflect the actual net price in quote, an ECN quote, on occasion, still likely to exceed ECN fees. In addition, the quote. Thus, it is necessary for a may not reflect the true ECN price the Commission believes that the market participant to consider because the quote will have to be alternative Order Execution Algorithms probabilities in evaluating an ECN’s rounded if the fee combined with the will provide an incentive for Nasdaq quote. If the ECN charges a fee, that fee quote is not at a whole penny Quoting Market Participants and UTP is a certainty in each trade to be increment.278 However, the NASD has Exchanges to display greater size and to weighed against a possibility of represented that it will re-examine the provide price improvement to attract offsetting price improvement. It is algorithm if, after decimals are greater order flow under each of the reasonable for the NASD to take the implemented, quotations are in possible execution alternatives. certainty, but not the possibility, into increments smaller than one penny. With respect to the price/time account by providing an algorithm that Should this occur, the NASD will algorithm that takes ECN fees into reflects ECN fees. determine whether it is prudent and account, the Commission finds that it is Furthermore, within that algorithm, feasible to rank orders based on reasonable for Nasdaq to give priority to the NASD also recognizes that it is quotation increments of less than one the interest of market makers and ECNs possible for an ECN’s real price to be at penny.279 that do not charge fees over the interest least as good as the price displayed in For these reasons, the Commission of ECNs that charge separate access fees Nasdaq even after its fee has been finds that the price/time algorithm because the quotes/orders of non- subtracted, if the price improvement taking ECN fees into account is charging market makers and ECNs are offered by the ECN’s internal price (as consistent with Section 15A(b)(6) of the equivalent at the displayed price. The opposed to its rounded displayed price Act,280 which requires that the rules of quote/order of an ECN that charges a on Nasdaq) is equal to or greater than its the association not be designed to separate fee, on the other hand, fee. As described above, the NASD has permit unfair discrimination between typically is not comparable to the quote/ amended the algorithm to allow a fee brokers or dealers. For the same reasons, order of a market maker or a non- charging ECN to indicate that the price the Commission believes that it is charging ECN because it may actually improvement equals or exceeds the fee appropriate for the reserve size of non- result in an inferior execution price after for a particular quote/order. Those charging ECNs to have priority over the the fee is added. In other words, when quotes/orders will be given the same reserve size of ECNs that charge a a broker-dealer accesses a market maker priority as the quotes/orders of market separate fee. quote, the broker-dealer knows that it makers and ECNs that do not charge b. Time Restrictions on the Order will pay exactly the amount displayed separate quote access fees. As a result of Delivery Feature because market makers do not charge this change, the Commission believes fees in addition to their quotes.274 If a that the price/time algorithm that Under the original proposal, if a broker-dealer accesses a quote/order of accounts for ECN fees does not quote/order was routed to an order an ECN that charges a separate fee, discriminate unfairly against any delivery ECN and the ECN failed to however, the broker-dealer may be Nasdaq market participant.277 The respond within five seconds of order charged a fee of up to 1.5 cents per share algorithm treats quotes/orders that are delivery,281 Nasdaq would immediately in addition to the quoted price, which comparable equally; only those quotes/ route the quote/order to the next Nasdaq may be passed along to its customer. orders that have a separate fee that Quoting Market Participant or UTP This per-share fee may add significantly exceeds the price improvement will Exchange in the queue. to the costs of trading with that ECN. have lower priority within the system Two commenters argued that this The price/time algorithm that takes ECN (with the exception of UTP Exchange aspect of the proposal would expose access fees into account is a reasonable principal quotes, which are discussed ECNs to significant financial risk attempt to allow market participants to below). because, in the event of Nasdaq system access the quote of an entity that does In addition, the NASD has committed problems, ECNs might not be able to not charge fees before directing their to work with ECNs to develop the orders to an ECN that charges fees.275 capability to reflect access fees in their 278 In a decimals environment, Nasdaq’s The Commission notes, however, that published quotes. If fees are reflected in minimum quoting increment may be a penny. 279 The Commission notes that quoting in today some ECNs allow finer quoting the quote, they will be ranked equally subpennies raises other issues, such as capacity and increments than Nasdaq and therefore, with those quotes/orders without fees trading issues, not related to the SuperMontage. on occasion, may offer internal prices based on price. For example, if ECN1 These issues will need to be addressed marketwide. that are better than the prices displayed represents a quote/order to buy at See Securities Exchange Act Release No. 42914 276 (June 8, 2000), 65 FR 38010 (June 19, 2000) in Nasdaq, notwithstanding their fee. $20.00, and charges a fee of $.01 per (ordering the implementation of decimal pricing). share, it would enter a bid of $19.99, In the Commission’s order requiring the 274 Moreover, trades in ITS between markets are which would be ranked in time priority implementation of decimals, the Commission called not subject to market fees, even though these with other bids of $19.99 entered by for a study regarding the impact of decimal pricing markets charge fees to their members for executing on systems capacity, liquidity, and trading trades on that market. See Securities Exchange Act market makers, ECNs that do not charge behavior, including an analysis of whether there Release No. 42536 (March 16, 2000), 65 FR 15401 should be a uniform minimum increment for a (March 22, 2000). internal price is at a fraction smaller than 1⁄16th (the security. 275 While, today, ECN fees are small in relation current minimum Nasdaq quote increment). 280 15 U.S.C. 78o–3(b)(6). to the existing quotation increment of 1⁄16, with the 277 Even if the SuperMontage were to include an 281 Nasdaq subsequently clarified that it will add coming of decimal pricing the significance of ECN identifier flagging ECN price improvement, as some two seconds for ‘‘processing time,’’ and therefore, fees in comparison to the minimum quotation commenters suggest, the amount of that price the time to respond would actually be seven increment could become much greater. improvement would remain unknown, and could in seconds. See letter from Richard G. Ketchum, 276 Currently, ECN public quotes are rounded fact be trivial, whereas the fee charged is known to President, NASD, to Annette Nazareth, Director, away to the next 1⁄16th price when the ECN’s best a participant. Division, Commission, dated July 18, 2000. VerDate 11 confirm the execution of a trade before was too long in today’s volatile, fast- and ECNs should be able to protect Nasdaq automatically re-routed the paced market. Another commenter, themselves adequately under normal order to the next Nasdaq Quoting however, expressed significant operating conditions. The Commission Market Participant in the queue, and in reservations about the 5-second expects, however, that during the turn would be required to assume the response time standard for ECNs.289 The implementation period the NASD will risk of filling a customer’s trade.282 One commenter questioned how a carefully monitor its systems to commenter recommended that the determination would be made that an determine whether the 30-second and 5- NASD give ECNs at least ten seconds to ECN ‘‘regularly’’ failed to meet the 5- second response times should be respond to incoming orders.283 Another second response time over a period of modified. orders. The commenter recommended commenter opined that the NASD c. ECN’s Automatic Execution Function should not be able to ‘‘[d]eclare itself that a neutral body, such as the non-liable for errors and losses caused Commission, make this determination Under the proposal, ECNs will have by Nasdaq technology failures * * * using objective criteria. the option to receive automatic that can shift business risk to market The Commission believes that the executions or to receive delivered orders participants. * * *’’ 284 To avoid NASD has responded reasonably to the to which they will respond. Regardless punishing ECNs when the failure is concerns of the commenters that of the method of participation, ECNs Nasdaq’s, one commenter proposed systems delays may expose them to an will have full access to the canceling orders if it is clear from the unacceptable degree of risk by SuperMontage for order entry and order ECN’s response that the time elapsed incorporating several suggestions made delivery. The SuperMontage also will 292 between the ECN’s actual receipt and by commenters, such as increasing the have a ‘‘request a cancel’’ feature. For response exceeds a mandated ECN response time and incorporating a example, under this proposal, if an minimum.285 second 5-second measurement based on internal subscriber of an ECN that In response to these comments, the an ECN’s actual receipt time. While the accepts automatic executions wants to NASD altered its approach to Commission understands the concerns access an order in the ECN that also is monitoring order-delivery ECN raised by one commenter regarding the being displayed in Nasdaq, the ECN responsiveness. First, in Amendment 5-second response time measurement, could request a cancel before effecting No. 8, Nasdaq established a 30-second the Commission notes that ECNs are the internal match. If the request is (as opposed to 7-second) maximum time required to provide an immediate declined because the order already is period for an ECN to respond to any automated response to SelectNet executed in Nasdaq, the ECN could given order.286 That is, if an ECN fails messages, and, in Nasdaq’s experience, decline its internal customer’s order to 293 to respond within 30 seconds of the ECNs generally respond in far less than avoid dual liability. Alternatively, the time a particular order is dispatched 5 seconds to orders presented to their ECN could choose to take only order 290 from the Nasdaq system to the ECN, quotes. Therefore, the Commission delivery. Nasdaq will withdraw the order and believes that this is a reasonable time in Three commenters believed that ECNs ‘‘zero out’’ the affected side of the which to expect ECNs to respond to should be required to participate in the unresponsive ECN’s quote until the ECN orders on a regular basis. In addition, an automatic execution functionality earlier ECN commenter on the proposal, instead of having an option to transmits a revised attributable quote/ 294 order. prior to Amendment No. 8, stated that participate as order delivery ECNs. Second, the NASD proposed a shorter a 5-second response time for order Two of these commenters believed that uniform turn-around time of a delivery ECNs should be more than the ‘‘request a cancel’’ functionality maximum of 5 seconds. The purpose is adequate under normal would minimize the potential of double 291 to establish a general standard (as circumstances. Further, the executions against ECNs, and eliminate opposed to an order-by-order standard) Commission believes that a certain level any valid reason for such a distinction 295 that measures whether an ECN is of discretion in determining whether an between market makers and ECNs. providing an automated response in a ECN regularly meets this standard is One of these commenters believed that time period that ensures market quality. necessary to maintain a flexible ECNs, with certain modifications, could If an ECN regularly fails to meet the standard that can accommodate delays operate within their current business five-second response time over a period that may result from a variety of models in an automatic execution 296 of orders, Nasdaq will place that ECN’s circumstances. Also, the Commission environment. The commenter notes that Nasdaq will lift the closed- quote in a closed-quote state. The believed that automatic executions are quote state of an ECN failing this closed-quote state will be lifted when essential to ensure that market standard when the ECN (not Nasdaq) the ECN can certify that it can meet the participants meet their firm quote rule certifies that it can meet the 5-second 297 five-second response time requirement. obligations. The commenter also One commenter believed that the 30- standard. suggested that if certain market The Commission believes that the 5- second maximum response time was participants accepted order delivery second parameter should ensure that reasonable and balances the competing overall response times remain prompt, 292 interests of avoiding dual liability and In SuperMontage, an order that has exited the Nasdaq system and is en route to an ECN or UTP 287 while still accommodating order providing an efficient trading system. delivery ECNs on individual orders with Exchange cannot be canceled. Thus, if a market However, one commenter objected to a 30-second response time. The participant requests to cancel an order, the system 288 will hold the cancel request until the ECN or UTP the 30-second response time. This Commission believes that the provisions commenter believed that 30 seconds Exchange completes interacting with the delivered made by the NASD to permit ECNs to order (i.e., the ECN or UTP Exchange executes, control the risk of errors are reasonable partially executes, or declines the order) or fails to 282 See Instinet Letter and Bloomberg Letter. respond within the allowable time. 283 See Instinet Letter. 293 289 See Instinet Letter. See Amendment No. 5, supra note 8. 284 See ACIM Letter. 294 290 See Securities Exchange Act Release No. See Merrill Lynch Letter; MSDW Letter; and 285 See Bloomberg Letter. 42847 (May 26, 2000), 65 FR 35690 (June 5, 2000) Goldman Sachs. 286 See Amendment No. 8, supra note 12. (noticing a proposed rule change by the NASD to 295 See Goldman Sachs Letter; and MSDW Letter. 287 See CHX Letter. include UTP Exchanges in the NNMS). 296 See Merrill Lynch Letter. 288 See STA Letter. 291 See Island Letter. 297 See Merrill Lynch Letter. VerDate 11 while market makers were required to lower in priority than the quote/orders orders of UTP Exchanges after the participate with automatic executions, of Nasdaq Quoting Market Participants. quotes/orders of Nasdaq Quoting Market market makers would have to develop One commenter argued that it would Participants in the SuperMontage’s dual systems.298 be unfair and ‘‘grossly anticompetitive execution algorithms because UTP Two commenters opined that to give the principal interest of the UTP Exchanges compete with Nasdaq for automatic execution ECNs could be Exchange last priority at a given price order flow. Under the current UTP Plan, exposed to dual liability if Nasdaq level.’’ 303 Another commenter stated Nasdaq serves as the processor for execution messages arrived after that the SuperMontage will ‘‘severely quotes and trade reports in Nasdaq matches were executed within the curtail the ability of other market securities, and in this capacity UTP data ECN.299 Another commenter stated that centers to trade Nasdaq-listed is given equal treatment. However, the ‘‘request a cancel’’ function would securities.’’ 304 Two commenters neither the UTP Plan nor Nasdaq’s SIP cause significant execution delays believed that the SuperMontage imposes role requires Nasdaq to imbed thereby undermining the burdens on competition by not competing exchanges in its trading competitiveness of ECNs by eliminating permitting attributable UTP agency system. Moreover, it is reasonable for one of the principal benefits offered by orders and by placing UTP principal Nasdaq to first conduct a complete agency brokers—speed of execution.300 orders last in the queue.305 One of these sweep of Nasdaq Quoting Market The Commission agrees with the commenters also questioned the Participants’ interest before matching an NASD’s position that it is necessary to treatment of orders from UTP Exchanges order against the principal interest of accommodate the different trading that elect to receive orders rather than another competing exchange. This models of all participants in the executions and the applicability of the practice is consistent with the practice SuperMontage. In order to accommodate Firm Quote Rule to such orders.306 of certain exchanges, which first probe ECNs, the NASD has chosen to provide Two commenters objected to the their own markets before directing an them an alternative to automatic proposal’s requirement that UTP order to another exchange. Indeed, the execution: order delivery. The Exchanges may only submit non- Intermarket Trading System (‘‘ITS’’) Commission believes that given the attributable orders, and thus depriving Plan requires such a probe.313 The them of credit for the liquidity provided Commission notes that the different business models of ECNs, it is 307 not inconsistent with the statute to to Nasdaq. One of these commenters SuperMontage has provided that a UTP provide them with this alternative to also noted that the execution of non- Exchange’s non-attributable agency automatic execution. attributable UTP Exchange orders in interest will receive priority on parity With regard to the commenters’ SuperMontage will deny UTP with market makers and ECNs. The concerns that ECNs may be subject to Exchanges revenue from the sale of Commission believes that the superior dual liability under automated quotation and last sale data generated by execution priority of non-attributable these orders.308 execution, the Commission notes that UTP Exchange agency interest over Two commenters argued that UTP ECNs may limit their risk of dual attributable UTP Exchange principal Exchanges must be treated on par with interest helps to protect agency orders liability by not accepting automatic NASD members regardless of whether executions. Further, even if ECNs and to increase order interaction in the such Exchanges submit agency or 314 choose to accept automatic executions, markets. proprietary orders.309 One of these The Commission recognizes the their risk of dual liability may be commenters believed that the limited by the ‘‘request a cancel’’ concern raised by commenters that, algorithms, as proposed in Amendment because UTP agency orders are not function and their ability to receive No. 8, will place UTP Exchanges’ attributed to the UTP Exchange, the directed orders.301 As a result, the proprietary quotes below inferior ECN liquidity contributed by the UTP Commission believes that ECNs have quotes.310 The other commenter called Exchange will not be displayed and sufficient alternatives for limiting their the NASD’s proposal to give the acknowledged. However, the exposure to dual liability. proprietary quotes of UTP Exchanges Commission believes that the 4. UTP Exchange Priority the lowest priority in the algorithms ‘‘a SuperMontage should not be required to bold attempt to protect Nasdaq market In response to commenters, the NASD promote and provide attribution for the makers from competition,’’ and that this amended the proposal to allow UTP agency orders of another market that treatment is not consistent with the fair Exchanges to receive automatic have been included in the competition requirement of the Act.311 SuperMontage for execution purposes. executions for their orders as long as Lastly, these two commenters argued If, however, Nasdaq as an exclusive they provide reciprocal automatic that all participants in the processor is publishing depth of book executions for orders sent to them from SuperMontage must be treated equally for the SuperMontage, it would need to Nasdaq. Further, the NASD amended in order for Nasdaq to fulfill its dual disseminate similar depth of book that the proposal to allow UTP Exchanges to responsibilities as a securities market another UTP Plan participant wished to display agency interest on a non- and as an exclusive SIP.312 display. The Commission believes that attributable basis and have that interest The Commission believes that it is it is sufficient that agency orders of receive parity with quotes/orders of reasonable to rank principal quotes/ other markets receive parity with Nasdaq Quoting Market Participants.302 quotes/orders of market makers and However, under the amended Order 303 See Archipelago Letter. See also CHX Letter; ECNs. Further, with respect to the Execution Algorithms, the principal CSE Letter; and Section V.G., infra. commenter’s other concern regarding interest of UTP Exchanges will still be 304 See Phlx Letter. the applicability of the Firm Quote Rule 305 See CSE Letter and Phlx Letter. to orders received from UTP Exchanges, 298 See Merrill Lynch Letter. 306 See Phlx Letter. 299 307 See CSE Letter and Phlx Letter. See NexTrade Letter and Bloomberg Letter; see 313 See Section 8(a)(v) of the ITS Plan. also Instinet Letter. 308 See CSE Letter. 314 The Commission notes that the NASD is 300 309 See CHX Letter and CSE Letter. See Instinet Letter. currently negotiating with at least one UTP 310 301 See Amendment Nos. 7 and 8, supra notes 10 See CHX Letter. Exchange. The Commission expects that the UTP and 12. 311 See CSE Letter. Plan will be amended, if needed, to reflect changes 302 See Amendment No. 4, supra note 6. 312 See CHX Letter and CSE Letter. provided for in this proposal. VerDate 11 the Commission notes that NASD Rule for orders designated as Sweep Orders, Exchanges the opportunity to monitor 4710(b) requires market makers to will limit the 5-second interval delay to and assess their quotes in a reasonable accept and execute non-directed orders situations where an order is partially manner in response to changing market against their quotes. filled at the inside price and the conditions.325 With respect to concerns raised by remaining shares of the order cannot be The Commission believes that the two another commenter regarding revenue filled within the next two trading ticks. exceptions to the 5-second interval appropriation from the sale of quotation In this situation, there will be an delay between price levels (for orders and last sale data generated by agency interval delay or pause before the order that can be filled at the initial price orders from UTP Exchanges and moves to the next price level away from level and within the next two price ticks executed within the SuperMontage, the the original price level. If, at any point, away and orders designated as Sweep Commission notes that the UTP Plan the remainder of the order can be filled Orders) provide a reasonable outlines the responsibilities of UTP Plan within the next two trading ticks, the compromise between the need for fast participants, but does not provide a order will be executed immediately. If executions and the need to provide comprehensive or exclusive set of terms an order is in interval-delay because it market participants adequate time to that govern the interaction of the meets the above parameters, orders that manage their capital risk by monitoring markets. Because the UTP Plan only are behind the ‘‘interval-delay order’’ and updating their quotes. Finally, the covers distribution and other basic will not jump the queue. In addition, a Commission expects that NASD will terms, it is not uncommon for the NASD market participant may set a parameter monitor market performance in the and UTP Plan Participants to negotiate on individual orders so that these orders SuperMontage as it relates to the five- terms for dealing with each other. will trade through all interest (i.e., second interval delay, particularly the Therefore, the Commission expects that displayed and reserve interest) at the potential for queuing, and consider these issues will be resolved among the three price levels being displayed in the modifying that time period, if participants of the UTP Plan. For NODF at the time of entry, without modification is necessary. instance, the NASD negotiated the terms pausing 5 seconds in between each E. Directed Orders of SuperMontage participation with the displayed price (i.e., a Sweep Order). UTP Plan’s only active participant, the One commenter supported the limited As proposed in the original notice, CHX.315 5-second interval delay between price directed orders would have allowed levels, and the proposed Sweep Order Nasdaq market participants to deliver a 5. Five-Second Interval Delay parameter.322 However, the commenter non-Liability Order326 to a Nasdaq As originally proposed, after all was still uncertain if the NASD’s Quoting Market Participant or UTP interest was exhausted at a price level, modifications to the process went far Exchange only if the order was the SuperMontage would have imposed enough to address concerns about designated as AON or MAQ for a size a limited 5-second interval delay before SuperMontage-imposed trading that is at least one normal unit of moving to the next price level. Two delays.323 trading (e.g., 100 shares) greater than the commenters questioned whether the The Commission finds that the displayed amount of the quote/order to proposed 5-second delay would reduce limited 5-second interval delay is which the order is directed. volatility in the markets as intended.316 consistent with Sections 15A(b)(6) and One commenter believed that directed In addition, four commenters believed 11A of the Act324 in that it is designed orders away from the BBO should be that the 5-second interval delay either to facilitate transactions in securities treated as Liability Orders.327 Another was too long or too short, depending on and maintain a fair and orderly market. commenter expressed concern that if a activity in the stock.317 Two The 5-second interval delay is designed recipient accepts a directed order for commenters also opposed the 5-second to provide Nasdaq Quoting Market execution, a trade-through could occur interval delay as unnecessary and Participants and UTP Exchanges with if that order is executed at a price inconsistent with the interest of adequate time to update their quotes, outside of the displayed price.328 This investors.318 Specifically, one without unduly delaying executions. commenter recommended adding a commenter believed that the delay The Commission believes that the 5- ‘‘clean-up’’ feature for directed orders would permit market makers, ECNs, and second interval delay could assist pursuant to which a directed order UTP Exchanges to decline to fill a non- market makers in fulfilling their could be executed only if the order Liability Order before moving their obligation to maintain continuous two- satisfied the interest displayed on the quotes to an inferior price.319 This sided quotes, and, in turn, could proposed system at better prices (with commenter believed that the ability of a promote quote competition among all no five-second delay if within two price market participant to consider whether market participants. The Commission levels from the inside quote if the order to decline or accept an execution at a notes that during the 5-second delay it goes through several price levels).329 published quote would interfere with will be possible for market makers and Two commenters also recommended the need of investors and traders for other market participants, who are not developing a workable trade-through certainty and could result in executions at the inside quote, to change their rule, in conjunction with the Order at inferior prices.320 quotes to the inside because of market In response to these comment letters, interest. Such competition should, in 325 Although one commenter was concerned that the NASD revised its process.321 The turn, enhance the quality of the Nasdaq the five-second interval delay would allow a market SuperMontage, subject to the exception participant to decline an execution at its published market by improving the price discovery quote, the Commission notes that market makers process for Nasdaq securities. The will still be subject to automatic execution and 315 See Amendment No. 4, supra note 6. Commission also believes that the delay therefore, will not be able to decline orders sent to 316 See ETA Letter and ICI Letter. could help stabilize the market during their quotes. See ETA Letter. 317 See STA Letter; STANY Letter; Salomon periods of volatility by allowing Nasdaq 326 A non-Liability Order is an order that when Smith Barney Letter; and Merrill Lynch Letter. delivered imposes no obligation to respond under 318 See ETA Letter and STANY Letter; see also Quoting Market Participants and UTP the Firm Quote Rule. See Proposed NASD Rule ACIM Letter. 4701(q). 319 See ETA Letter. 322 See ICI Letter. 327 See Heartland Letter. 320 See ETA Letter. 323 See ICI Letter. 328 See MSDW Letter. 321 See Amendment No. 4, supra note 6. 324 15 U.S.C. 78o–3(b)(6) and 15 U.S.C. 78k–1. 329 See MSDW Letter. VerDate 11 Execution Algorithm, to provide raised by one commenter regarding the to exist if ECNs opt to take order incentives for the entry and protection potential double liability of market delivery for Liability Orders.343 The of better-priced quotes displayed in the makers, the Commission also recognizes commenter believed that the problem system.330 Two other commenters that market makers are not required to would be alleviated if ECNs were argued that the order routing process as receive directed Liability Orders. If a required to receive automatic proposed would not allow customers to market maker does not elect to receive executions.344 However, as described in preference them.331 They stated that the directed Liability Orders, the market greater detail previously, the NASD non-directed order process offered no maker will not be exposed to double believes that it is necessary to capability for preferencing, and the liability.340 Reducing the potential for accommodate the needs of ECNs by directed order process offered an dual liability may encourage market providing them with an alternative to ineffective way of preferencing because makers to display larger sized automatic execution. all directed orders must be designated quotations, thereby providing greater In addition to the issues raised above, as non-Liability Orders.332 liquidity to the market for Nasdaq one commenter questioned the manner In response to these comments, the securities. Further, the ‘‘request a in which the NASD proposed to resolve NASD revised the proposal to allow cancel’’ feature limits the exposure of locks and crosses on the opening of the Nasdaq Quoting Market Participants and Nasdaq Quoting Market Participants and market.345 This commenter stated that, UTP Exchanges to elect to receive UTP Exchanges by allowing participants as proposed, the system will permit Liability Orders through the directed to fill directed non-Liability Orders participants to enter non-firm quotes up order process.333 Under the proposed without being exposed to a dual until the opening and then execute the change, a Nasdaq Quoting Market execution. At the same time, ECNs and oldest bids against the oldest offers at Participant or UTP Exchange can choose others that choose to use the directed the open.346 This commenter opined to receive a directed order against its order process to take Liability Orders that in this system market participants quote that is also a Liability Order. A may do so. will have no incentive to find the market participant also can choose to The Commission emphasizes, correct price for a stock before the accept directed orders against its quotes however, that while directed orders are opening.347 only as non-Liability Orders.334 Thus, not necessarily inconsistent with the Another commenter raised the for example, a market maker can choose achievement of best execution, a market concern that SuperMontage will subject to receive both non-directed and participant must periodically assess the ECNs to an unacceptable risk of directed Liability Orders, or it can quality of competing markets to assure automatic execution by converting ECN choose to receive only non-directed that order flow is directed to markets quotes into orders when they lock or orders on a liability basis. The NASD providing the most advantageous terms cross the market.348 This commenter and Nasdaq have indicated that ECNs for its customers’ orders. Thus, a explained that ECNs are not capable of that opt to receive directed Liability participant may not simply employ receiving automatic executions because Orders will avoid dual liability because default order routing to a broker-dealer they do not take proprietary positions they will retain the ability to fill, affiliate or particular NASD member and therefore, cannot accept the risk of partially execute, or decline a directed without undertaking such an evaluation multiple executions against their or non-directed Liability Order.335 on an ongoing basis.341 quotes.349 One commenter believed that the The NASD responded by explaining NASD’s change provided a partial F. Locked/Crossed Markets that when a market participant enters a solution, but expressed concern that it Generally, under Nasdaq’s proposal, if locking or crossing quote into the will subject market makers to double a Nasdaq Quoting Market Participant or system, it will receive a system warning, liability if market makers elect to UTP Exchange enters an order that will as it does today.350 In order to complete receive directed Liability Orders.336 lock or cross the market, the OCF will the quote entry, the participant is Another commenter believed that not display the order as a quote/order, required to override the system warning. allowing directed orders would permit but instead the order will be treated as After overriding the warning, the quote trade-throughs to occur.337 One a marketable limit order and entered results in an order being generated that commenter stated that directed orders into the OCF as a non-directed order for accesses the quote that will be locked or would limit the ability of institutional execution. If the market is locked or crossed. Therefore, the NASD stated, traders to effectively participate in the crossed at the opening, the system will ECNs can avoid automatic executions SuperMontage.338 clear the locked or crossed quotes by for their own quotes by not overriding The Commission believes that these executing the oldest bid (offer) against the system warning.351 proposed rules are in accordance with the oldest marketable offer (bid) at the The NASD added that ECNs are not at Section 15A(b)(6) of the Act339 because price of the oldest quote/order. risk if another participant enters a they are designed to facilitate One commenter believed that locked quote/order that locks or crosses an transactions in securities, remove or crossed markets at the opening existing ECN quote. If that occurs, the impediments to and perfect the should be resolved in price/time and system again will issue a warning to the mechanism of a free and open market not time/price priority.342 Another party attempting to lock or cross the and national market system. While the commenter stated that the potential for market. If that party overrides the Commission recognizes the concern locked or crossed markets will continue system warning, the system will then convert the locking or crossing quote 330 See ITAC Letter and CSE Letter. 340 The Commission notes that market 331 See Instinet Letter; and Bloomberg Letter. participants will still be able to preference market 343 See MSDW Letter. 332 See Instinet Letter; and Bloomberg Letter. makers on a Liability Order basis. Under this 344 See MSDW Letter. option, market makers will not be exposed to 333 See Amendment No. 7, supra note 10. 345 See Island Letter. double liability because preferenced orders are 334 346 See Amendment No. 7, supra note 10. processed in the non-directed order queue. See Island Letter. 335 347 See Amendment No. 7, supra note 10. 341 See Securities Exchange Act Release No. See Island Letter. 336 See Bloomberg Letter. 37619A (September 6, 1996), 61 FR 48290 348 See Instinet Letter. 337 See CSE Letter. (September 12, 1996) (order approving the Order 349 See Instinet Letter. 338 See Scudder Kemper Letter. Handling Rules). 350 See Amendment No. 7, supra note 10. 339 15 U.S.C. 78o–3(b)(6). 342 See ACIM Letter. 351 See Amendment No. 7, supra note 10. VerDate 11 and process it as a non-directed order. implemented without an amendment to ECNs that attempt to access other It will not deliver an automatic the UTP Plan because certain features of participants.363 The commenter noted execution to an ECN that chooses to the proposal change the obligations of that order-delivery ECNs will have the accept only order delivery against its Nasdaq under the UTP Plan.355 ability to automatically execute against quote. In either case, there is little or no In the original proposal, UTP other participants, but order-delivery risk to an order delivery participant of Exchanges had the option of receiving UTP Exchanges will not.364 The an unwanted automatic execution.352 orders either for delivery or automatic commenter believed that this was done The Commission finds that the execution, but they were only permitted to put order-delivery UTP Exchanges at proposal’s provision to address locked to send orders to the SuperMontage for a competitive disadvantage.365 Another and crossed markets is consistent with order delivery. Some commenters commenter also disagreed with the the Act because it is designed to reduce disapproved of this approach. NASD’s proposal to provide a UTP the frequency of locked and crossed Specifically, they argued that incoming Exchange automatic executions against markets, which should help to provide UTP Exchange orders should be subject Nasdaq’s market only if the UTP reliable quotation information, facilitate to automatic execution, so that market Exchange is similarly willing to provide price discovery, and contribute to the makers could avoid having duplicate automated execution against its maintenance of a fair and orderly systems solely to service UTP quotes.366 The commenter believed that market. The proposal also should Exchanges.356 While one commenter it was possible to promote inter- facilitate more efficient openings. The acknowledged the rationale behind the exchange competition without requiring proposal seeks to eliminate locked and proposal’s exclusion of UTP Exchanges UTP Exchanges to become part of crossed markets by matching marketable from automatic execution, it argued that Nasdaq’s limit order book. orders against one another, after their inclusion was ‘‘in the best interests The Commission believes that the providing notice that an execution will of all market participants,’’ and that NASD’s treatment of UTP Exchanges is occur. The Commission believes this such inclusion would be equitable if consistent with the Act. While the approach is reasonable. As the UTP Exchanges provided reciprocal Commission believes that it is Commission has concluded previously, automatic execution capability to reasonable for the NASD to attempt to continued locking and crossing of the incoming market maker orders.357 The accommodate the various needs of its market can negatively impact market Chicago Stock Exchange also objected to members, the Commission does not quality.353 By helping to reduce the the inability of UTP Exchanges to believe that NASD must make the same frequency of locked and crossed participate in automatic executions and accommodations for competing markets. markets, the Commission believes that the prioritization of UTP Exchanges in The Commission believes that Nasdaq the proposal should improve market the Order Execution Algorithm.358 should be able to provide access to a quality and enhance the production of Another commenter acknowledged competing exchange that is equivalent fair and orderly quotations. that it would be difficult for the NASD to the access the competing exchange While the Commission understands to surveil, and if necessary, discipline provides for Nasdaq members.367 In the commenter’s concern that the UTP Exchange members for ‘‘backing addition, the Commission notes that the proposal will not completely eliminate away’’ from their quotes, and suggested SuperMontage is voluntary and that crossed and locked markets because that potential solutions should be UTP Exchanges may elect to post their ECNs will be given the option of taking considered.359 In addition to the quotes/orders in the NASD’s display 368 order delivery for Liability Orders rather duplicate systems issues, the alternative. than automatic executions, the ECNs commenter cited a potential loss of H. Odd-Lot Processing still will be required to execute the liquidity that would result if UTP Certain commenters criticized the locking order immediately, and Nasdaq Exchanges and ECNs did not participate original proposal for handling limit will decrement the ECNs’ quote upon in automatic executions.360 orders, saying that it would be delivery of the order. Thus, the lock or In response to concerns about UTP ‘‘cumbersome’’ and create the cross should be removed quickly. In Exchange participation as originally opportunity for ‘‘gaming the system’’ 369 addition, as stated previously, the filed, the NASD amended the proposal by breaking large orders into odd-lots so Commission believes the NASD’s to give UTP Exchanges the option to that those orders would not affect the position that, despite this negative receive automatic executions in the published quote.370 Four commenters aspect, it is necessary to accommodate SuperMontage, provided that they give also expressed concern that dealers the ECNs by providing them with an Nasdaq reciprocity.361 In addition, UTP without a current interest in a security alternative to automatic execution is Exchanges will still have the option of consistent with the Act. accepting order delivery rather than 363 362 See CHX Letter. G. UTP Exchange Participation as automatic execution. 364 See CHX Letter. Automatic Execution Participants One commenter objected to what it 365 See CHX Letter. CHX noted that it is currently One commenter supported UTP considered to be the unnecessarily exploring with Nasdaq the possibility of allowing Exchange participation in the disparate treatment for order-delivery automatic execution UTP Exchanges to have the UTP Exchanges and order-delivery ability to revert to order-delivery if Nasdaq has SuperMontage and stated that the systems delays. proposal represented a ‘‘positive step in 366 See CSE Letter. 355 See CHX Letter. The Commission notes that 367 The Commission notes that Nasdaq is integrating the Nasdaq and UTP the NASD is currently working on amendments to 354 exploring other ways to accommodate UTP Exchange markets.’’ This commenter, the UTP Plan. Exchanges. The Commission expects that some of however, stated that as a purely legal 356 See STA Letter; STANY Letter; and Merrill the issues raised by UTP Exchanges will be further matter, the proposal could not be Lynch Letter. addressed in those discussions. 357 See STANY Letter. 368 See discussion at Section V.I.3, Nasdaq as an 352 See Amendment No. 7, supra note 10. 358 See CHX Letter; see also Archipelago Letter. Exclusive Securities Information Processor. 353 See Securities Exchange Act Release No. 359 See Merrill Lynch Letter. 369 See STA Letter; STANY Letter; Salomon 40455 (September 22, 1998), 63 FR 51978 360 See Merrill Lynch Letter. Smith Barney Letter; ITAC Letter; and MSDW (September 29, 1998) (order approving File No. SR– 361 See Amendment Nos. 4 and 6, supra notes 6 Letter; see also Merrill Lynch Letter. NASD–98–01). and 9. 370 See STA Letter; STANY Letter; Salomon 354 See CHX Letter. 362 See Amendment No. 6, supra note 9. Smith Barney Letter; and MSDW Letter. VerDate 11 would be forced into executions under believes that the proposed odd-lot fundamental market structure to an the proposed odd-lot processing system is consistent with the Act based incremental evolution in market method.371 At least one commenter on the current roles of market makers technology characterized by a opined that the proposed odd-lot and ECNs, but believes that Nasdaq marketplace that preserves investor processing would impose unnecessary should explore including ECNs in the choice and competition.’’384 administrative and operational burdens odd-lot execution process if ECNs can Fourteen commenters, however, were 372 on firms, and several commenters demonstrate that they can provide concerned that the proposal will have a raised issues regarding decrementing a equivalent treatment to these orders as negative impact on competition.385 Most 373 market maker’s bids and offers. market makers. of these commenters argued that the In response to these comments, the proposal was anti-competitive because, NASD revised its proposed odd-lot I. Issues Relating to Competition in their view, it will implement a execution process.374 Under the current 1. Centralization monopolistic, centralized execution proposal, the SuperMontage will Many commenters believed that the system that will compel participation by include a separate mechanism for proposal will improve the Nasdaq NASD regulated broker-dealers, and in processing and executing odd-lot orders market by providing more information turn stifle ECN innovation and diminish at the inside price that will provide: (1) to investors, promoting greater market competition. Several An ‘‘odd-lot exposure limit’’ for market efficiency in executions, or increasing commenters also expressed concern that makers; (2) a market maker interval overall market transparency.379 One the automatic execution feature of the delay between odd-lot executions commenter believed that the SuperMontage will have a negative against the same market maker; and (3) SuperMontage is greatly needed and an odd-lot order entry parameter of one impact on competition by forcing order ‘‘that it will eventually make the market 386 order per second, per firm. Odd-lot flow into the SuperMontage. more efficient and competitive, all to Specifically, Instinet stated that, orders will be processed in a round- the benefit of the investor.’’380 Another robin fashion against a market maker because of the NASD’s status as a commenter stated that the regulator, the NODF will effectively with an available exposure limit, even if SuperMontage will improve the Nasdaq the market maker is not at the inside.375 become a mandatory display facility for market and integrate ‘‘market makers, investors’ orders to the exclusion of One commenter argued that ECNs ECNs and UTP Exchanges in a more should be permitted to interact with more efficient, better-priced pools of unified, competitive manner.’’381 One 387 376 liquidity. Instinet believed that odd-lot orders. commenter also believed that the The Commission believes that the Nasdaq’s affiliation with NASD SuperMontage will ‘‘continue a natural Regulation will create the perception proposed rule change allows for greater competition between securities market maker participation in executing among Nasdaq Quoting Market markets.’’382 Another commenter stated Participants that customer orders routed odd-lot orders. The Commission also that the SuperMontage was ‘‘an believes that allowing all market makers to the SuperMontage will be insulated inclusive model built with the 388 registered in a security to participate in from best execution challenges. connectivity to link all market Instinet thus asserted that liquidity executing these orders should participants, including electronic strengthen the Nasdaq market and provided by other facilities could communications networks into the evaporate, and that investor order benefit market participants by market center. However, it in no way permitting the prompt, efficient display and execution options will imposes new obligations or burdens, or 389 377 diminish. Instinet also argued that execution of odd-lot orders. Market diminishes the opportunity for market makers may elect to execute odd-lot Nasdaq will have a regulatory advantage participants to interact with one another over ECNs because of its ability to orders at the inside price even when the 383 through other means.’’ In addition, subsidize market operations from the market maker is not at the inside bid/ one commenter, after Amendment No. offer, thereby adding to the depth and revenues that Nasdaq earns from the 8, stated that the ‘‘SuperMontage has sale of market data.390 liquidity of the market. The Commission been transformed from a revolution in notes that historically only market Phlx believed that the SuperMontage makers have participated in the odd-lot maker as principal is excluded from the definition will result in an ‘‘unacceptable process because ECNs do not take of an ECN. See 17 CFR 240.11Ac1–1(a)(8)(ii). An concentration of market power in the proprietary positions. If an ECN were to OTC market maker is defined as any dealer who NASD at the expense of the regional participate in the revised odd-lot holds itself out as being willing to buy from and sell exchanges * * * . Under the to its customers, or otherwise, a covered security for process, it would have to take its own account on a regular or continuous basis SuperMontage proposal, Nasdaq will proprietary positions from time to time otherwise than on an exchange in amounts of less function as its own ITS. * * * [without because it would be required to execute than block size. See 17 CFR 240.11Ac1–1(a)(13). providing] for any representation.’’391 at the inside quote.378 The Commission 379 See ETA Letter; Merrill Lynch Letter; Goldman Sachs Letter; MSDW Letter; STA Letter; STANY 384 Letter; ITAC Letter; ICI Letter; Bannon Letter; See Bloomberg Letter. 371 See Salomon Smith Barney Letter; STA Letter; Bancorp Letter; Charles Schwab Letter; 385 See ETA Letter; Island Letter; Instinet Letter; STANY Letter; and MSDW Letter. Congressman Dreier Letter; Congressman Pallone Bancorp Letter; Archipelago Letter; Granite 372 See Merrill Lynch Letter. Letter; Congresswoman Morella Letter; Financial Letter; ATD Letter; ACIM Letter; BRUT 373 See Salomon Smith Barney Letter; MSDW Congressman Stupak Letter; Congresswoman Letter; Phlx Letter; Leon Letter; Aurora Letter; Letter; Merrill Lynch Letter; STA Letter; and Wilson Letter; Congressman Towns Letter; Renaissance Letter; CSE Letter; and NexTrade STANY Letter. Congressman McInnis Letter; Congressman Thomas Letter. In its comment letter, Island specifically 374 See Amendment No. 4, supra note 6. Letter; Spear, Leeds & Kellogg Letter; First Union questioned whether ECNs could compete in a 375 Id. Letter; ITG Letter; Jeffries Letter; Congressman regulatory environment structured to favor Nasdaq. 386 376 See Island Letter. Ehrlich Letter; Congressman Radanovich Letter; See ETA Letter; Island Letter; Bloomberg Letter; Instinet Letter; Leon Letter; and NexTrade 377 Currently, odd-lots are automatically executed Congressman Shays Letter; Titak Letter; ASA Letter; Letter. only against market makers who are at the inside APTC Letter; Philadelphia Corp. Letter; Garrett 387 bid/offer. Letter; and Senator Schumer Letter. See Instinet Letter; see also Leon Letter. 380 388 378 The Commission notes that any system See STA Letter. See Instinet Letter. operated by, or on behalf of, an OTC market maker 381 See MSDW Letter. 389 See Instinet Letter; see also NexTrade Letter. or exchange market maker that executes customer 382 See APTC Letter. 390 See Instinet Letter. orders primarily against the account of such market 383 See Congressman Radanovich Letter. 391 See Phlx Letter. VerDate 11 In response, the NASD stated that, ECNs.394 Those that wish to continue to size in Nasdaq securities.396 SOES while the proposal creates a central maintain anonymity through clearance offered an alternative for those firms to means for accessing liquidity in Nasdaq and settlement may continue to use the traditional telephone contact and and other market centers, it in no way ECNs. In addition, market participants negotiation with market makers by establishes the SuperMontage as the wishing to execute orders without the providing automatic execution of sole means for providing or accessing participation of a dealer may continue customer orders against Nasdaq market liquidity. NASD members, individual to do so under the proposal. NQDS makers at the best available market investors, and members of other Prime will provide all individual price. exchanges will be free to route their attributable quote/order information at Initially, participation in SOES was orders to any market center they choose. the three best price levels displayed in voluntary. During the October 1987 Moreover, ECN subscribers will be free the SuperMontage. With this market break, however, the Nasdaq to use the execution services offered by information, market participants will market experienced significant the ECNs to access liquidity within the have the choice of using Nasdaq’s operational problems.397 Sharp ECNs. The NASD emphasized that facility to access liquidity or private downward volatility and record volume nothing in the proposal prohibits ECNs linkages outside of the SuperMontage to resulted in delayed transaction reports and other market participants from access liquidity. Moreover, participation and a large number of locked and establishing links or order-routing in the SuperMontage is voluntary. A crossed markets. The unusual market arrangements.392 The NASD maintained market participant, such as an ECN, may conditions created a situation in which that providing a means for accessing elect not to display, or provide access it was impossible for market makers to liquidity and trading interest is an to, its quotes/orders through Nasdaq and ensure that their quotes, against which essential and core function of a market. instead display and provide access to its trades were continuing to be executed in The NASD pointed out that it already quotes/orders on other markets, such as SOES, accurately reflected the rapidly provides both quotation and execution the Chicago Stock Exchange, the changing market. Because participation services. Nasdaq has operated SOES Cincinnati Stock Exchange, and in SOES at that time was voluntary, a since 1984, and SelectNet since 1988, possibly in the future, the Pacific majority of market makers responded by 398 both of which are integrated with Exchange (‘‘PCX’’). In addition, the withdrawing from SOES. Trades that Nasdaq’s quotation system. The NASD NASD has agreed to create an normally would have been handled believes that eliminating this capability alternative quote reporting mechanism through SOES then had to be executed would be a step backward for the market that will allow an ECN, ATS, or market by contacting market makers by and investors, and would be contrary to maker to maintain its quotes in an telephone. This necessarily increased Sections 11A and 15A of the Exchange NASD facility without being a the already extraordinary workload of Act as it will foster inefficiencies in the participant in Nasdaq, and therefore the market makers and contributed to a execution of securities, minimize SuperMontage.395 large number of unfilled orders, as well opportunities to obtain best execution, At the heart of the commenters’ as complaints that market makers were limit market linkages, result in competition arguments is the view that not accessible. In response to those problems, the disorderly markets, and ultimately harm automatic execution against market 393 NASD adopted a number of rules to investors. makers gives the SuperMontage an facilitate the execution of retail The Commission believes that the unfair advantage in drawing order flow customer orders in SOES and to ensure SuperMontage does not impose any and makes it difficult for others to build burden on competition that is not market maker participation in the competing links to market makers. The necessary or appropriate in furtherance system (‘‘1988 SOES modifications’’), Commission finds that the automatic of the Act. The Commission has long including making SOES participation execution feature offered by the held the view that competition and mandatory for all market makers in SuperMontage is a reasonable way for innovation are essential to the health of Nasdaq securities.399 These changes Nasdaq to improve market efficiency. the securities markets. Indeed, were intended, among other things, to Since at least 1988, automatic execution competition is one of the hallmarks of ensure that order entry firms could has been a vital element of Nasdaq’s the national market system. The obtain automatic executions for their dealer market. The NASD’s automatic SuperMontage is a reasonable effort by customers in volatile markets. Upon execution system, SOES, was initially the NASD to enhance the quality of the approval, the Commission stated its Nasdaq market by providing more developed in 1984 to provide an belief that the 1988 SOES modifications information to investors, promoting efficient facility for order entry firms to would enhance market liquidity, greater efficiency in executions, and execute retail customer orders of limited improve the accuracy of Nasdaq’s increasing overall market transparency. pricing systems, promote the timeliness 394 While market participants also may interact Although the SuperMontage may with quotes/orders below the top of the book in the of trade reporting, and help alleviate 400 provide a new means for accessing SuperMontage, the Commission notes that directed locked and crossed markets. liquidity in Nasdaq stocks, the orders will have to be for a size greater than the In 1999, the NASD recognized that, SuperMontage will not be the sole quoted size unless the Nasdaq Quoting Market while SOES and SelectNet provided Participant or UTP Exchange is willing to accept a means for providing or accessing directed Liability Order. As a result, the 396 liquidity. Under the proposal, broker- Commission believes that market participants will See Securities Exchange Act Release No. dealers may continue to seek alternative continue to have the same incentive to access ECNs 21433 (October 29, 1984), 49 FR 44042 (November 1, 1984). order routing and execution services for quotes/orders below the top of the book as they do today. In addition, customer orders routed to the 397 See Division of Market Regulation, The that provide value to their customers SuperMontage will not ‘‘be insulated from best October 1987 Market Break 9–3 to 9–15 (February through price, speed, and technology. execution challenges’’ merely because the orders 1988) (‘‘1987 Market Break Report’’). Broker-dealers wishing to interact with are routed to an SRO’s market. Indeed, the 398 As described more fully in the 1987 Market institutional orders below the top of the Commission has noted in this release several Break Report, the number of market making instances where best execution may not be achieved positions declined more than 83 percent between book, for example, may continue to use within SuperMontage. See e.g., discussions at October 19 and October 22, 1987. Id. at 9–14. V.D.2. and V.E. 399 See Securities Exchange Act Release No. 392 See Amendment No. 5, supra note 8. 395 See Section V.I.3, NASD as an Exclusive 25791 (June 9, 1988), 53 FR 22594 (June 16, 1988). 393 See Amendment No. 7, supra note 10. Securities Information Processor, infra. 400 Id. VerDate 11 valuable services to market participants, NASD stated that if all market handle any increased volume of the operation of two separate and participants receive only orders (as message traffic.407 independent execution systems resulted opposed to executions), which they may Finally, Instinet and Bloomberg in frequent dual liability for market reject in full or fill partially, investors’ argued that the order display and order makers. In response to this problem, the orders would be ‘‘bounced’’ from one routing facilities of the SuperMontage NASD proposed to integrate SOES and market participant to another. Thus, this should not be linked to the order SelectNet, and re-establish SelectNet as approach could result in orders that are matching facility of the SuperMontage. a non-Liability Order delivery and entered later in time being filled before Instead, Instinet and Bloomberg execution system for Nasdaq National orders that are entered earlier in time, believed that Nasdaq’s order display Market System securities and recast depending on how and when the market and routing facilities, which the NASD SOES as the NNMS. The Commission participant receiving the order responds proposes to continue operating under approved the integration on January 25, to the order.404 the SuperMontage, should be separate 2000.401 Pursuant to the NNMS Order, The NASD also noted that, under from its proposed order matching the maximum order size now eligible for Bloomberg’s alternative, instances of facility.408 automatic execution in Nasdaq National backing away could increase, In the Commission’s view, however, Market System securities is 9,900 particularly because it could exacerbate the SuperMontage not only builds on shares. Further, the NNMS Order the dual liability problem that many the order execution foundation laid by permitted market makers to enter both market makers face today. Automatic SOES and NNMS, but represents proprietary and agency orders into execution, in comparison, reduces the another step in the ongoing NNMS, and receive executions. potential that a market participant may technological evolution of the U.S and The Commission continues to believe back away from its quote. global securities markets. This past year, that automatic execution provides many Finally, the NASD argued that for example, the Commission approved benefits to a marketplace, particularly automatic execution significantly the first completely electronic options speed and certainty of executions. As reduces the potential for locked and exchange, the International Stock the NASD pointed out, certainty of crossed markets. The NASD stated that Exchange.409 The Commission also just execution is important to all investors, its proposal will reduce instances of approved a proposed rule change by the particularly in fast moving markets. The locked/crossed markets because a New York Stock Exchange to implement automatic execution feature of the substantial number of market NYSe Direct+, which would provide SuperMontage should promote investor participant quotes will be subject to automatic executions for certain limit confidence by increasing the likelihood automatic execution. The NASD orders of a specified size.410 PCX also that orders of moderate size from large questioned whether Bloomberg’s recently proposed to incorporate and small investors alike will be filled proposal would be equally effective in automatic execution into its trading almost instantaneously. The addressing locked/crossed markets, platforms and create an electronic book SuperMontage’s automatic execution especially because the system for its equities business by operating the feature also should improve the presumably would not move stale Archipelago Exchange as a facility of the accuracy of Nasdaq’s pricing systems, quotes out of the way to resolve a PCX.411 promote the timeliness of trade locked/crossed market. Rather, under These market developments are reporting, and help alleviate locked and Bloomberg’s proposal, the system would consistent with—and indeed, were crossed markets. Further, the continue to deliver orders and default to foreshadowed by Congress in—Section Commission notes that the executions against a stale quote. The 11A of the Exchange Act. In Section SuperMontage does not dramatically quote would have to be manually 11A, Congress recognized that modify the automatic execution feature removed before the lock/cross could be technology would drive competition in NNMS, which was approved by the resolved.405 among the securities markets, stating Commission after being published for The Commission does not believe that that ‘‘[n]ew data processing and comment. Bloomberg’s suggested hybrid approach communications techniques create the In a comment letter prior to would necessarily be as effective as the opportunity for more efficient and Amendment No. 8, Bloomberg suggested approach proposed by Nasdaq. A hybrid effective market operations.’’ 412 The an alternative, hybrid approach to order delivery system would require the Commission believes that automatic execution, in which Nasdaq NASD to constantly monitor dealer could send order messages that executions to prevent instances of 407 See Amendment Nos. 3 and 4, supra notes 5 converted into executions within a backing away outside of the system. It and 6. 408 As Instinet stated, ‘‘[t]he NASD’s proposal fraction of a second if market makers also would be less effective in unnecessarily ties together two distinct services failed to respond.402 Bloomberg stated addressing locked and crossed markets. provided by Nasdaq—establishing a mandatory that such a hybrid approach, which is In addition, the Commission notes that linkage between (i) Nasdaq’s facilities for displaying both technologically feasible and the NASD has represented that order and making quotes accessible under the Commission’s order display rules (i.e., the Order affordable, would promote the use of delivery messages use significantly Handling Rules and Regulation ATS) and (ii) automatic execution facilities among more message capacity than order Nasdaq’s new ECN-like facility for automatically market professionals and enhance execution messages. Thus, an increased matching individual quotes and orders.’’ See market efficiency.403 reliance on automatic executions could Instinet Letter (emphasis in original). In response, the NASD stated that reduce network traffic and increase 409 See Securities Exchange Act Release No. 42455 (February 24, 2000), 65 FR 11401 (March 2, Bloomberg’s approach could harm speed and reliability of the entire 2000). investors, particularly small investors, Nasdaq market.406 As discussed further 410 See Securities Exchange Act Release No. because there no longer would be a below, the NASD has represented that a 43767 (December 22, 2000), 66 FR 834 (January 4, method of providing automatic system based on an automatic execution 2001). execution to small orders. Further, the platform can be expanded rapidly to 411 See Securities Exchange Act Release No. 43608 (November 21, 2000), 65 FR 78822 (December 15, 2000) (noticing proposed rule change 401 See NNMS Order, supra note 22. 404 See Amendment No. 5, supra note 8. (SR–PCX–00–25) that the Archipelago ECN become 402 See Bloomberg Letter. 405 See Amendment No. 5, supra note 8. a facility of PCX). 403 See Bloomberg Letter. 406 See NNMS Order, supra note 22. 412 15 U.S.C. 78k–1. VerDate 11 SuperMontage proposal is consistent perceived.’’421 Another commenter that many of these conflicts are inherent with Section 11A in that it incorporates recommended that the NASD ‘‘divest in the self-regulatory model. Indeed, the new technological features to provide itself of its residual interest in Nasdaq’’ Act specifically contemplates that SROs investors with the opportunity to to reduce anti-competitive conflicts.422 not only will act as regulators, but also receive economically efficient execution Finally, several commenters opined that will operate markets.432 For instance, of their securities transactions and to the NASD’s conflicts of interest might the Act authorizes the Commission to promote fair and orderly markets.413 It become more pronounced with oversee SRO functions to address the is not only essential that investors have Nasdaq’s announced intention to inherent conflicts of the self-regulatory the ability to see the depth of the supply demutualize.423 model, and to attempt to ensure that an and demand in a security, but also that Another commenter questioned SRO does not secure advantages as a they have the ability to access the depth whether Nasdaq will use market data commercial entity by virtue of its of the supply. The SuperMontage will compiled by the NASD Automated regulatory authority. Among other provide a new means of accessing that Confirmation of Transactions (‘‘ACT’’) things, the Commission must find that 424 liquidity. facility and OATS. This commenter the rules of the NASD provide for fair argued that because ECN competitors of representation of its members, 2. Other Issues Relating to Competition the SuperMontage will not have access appropriate discipline for violations of to this data, Nasdaq should not have the Act, and a fair procedure for Several commenters expressed access to the data and should be disciplining members.433 The NASD is concerns about the NASD’s dual role as required to compete on equal ground required to file proposed rule changes an operator of a market (i.e., Nasdaq) with other trading systems.425 To permit with the Commission when it 414 and as a self-regulator. Specifically, Nasdaq to use this information, the establishes fees, and these fees must be one commenter believed that the NASD commenter argued, would allow Nasdaq reasonable and equitably allocated will use its regulatory powers to to use its affiliation with NASD to among members, issuers, and other ‘‘nourish the private ECN’’ and thereby unfairly compete for customer orders.426 persons using any facility or system of restrain competition,415 while another Three commenters also expressed the SRO in accordance with Section commenter believed that Nasdaq’s concern about the potential fees the 15A(a)(5) of the Act.434 Further, NASD regulatory privileges will inhibit NASD might charge for access to the trading rules, such as the SuperMontage competition and force market SuperMontage.427 One commenter proposal, are subject to the participants to accept what Nasdaq stated that the NASD would have no Commission’s rule review process. This offers.416 Other commenters viewed the incentive to control costs associated process provides the opportunity for proposal as an inappropriate attempt by with the SuperMontage because it interested parties and the public to the NASD to compete with its own would be a monopoly.428 This voice their comments and concerns members’ trading systems, particularly commenter noted that currently it costs about proposed rules to the ECNs, using the revenues generated by twice as much to execute a trade Commission. Moreover, the those participants to finance the through SelectNet as it does on the Commission, through inspections, SuperMontage.417 Two commenters Island ECN.429 The commenter vigilantly monitors all SROs, including believed that the SuperMontage would attributed the difference in cost to the the NASD, for objective compliance and receive financial subsidies from fact that Island has competitors while enforcement of their rules. Thus, Nasdaq’s market information SelectNet has a unique relationship through oversight, inspection, and revenues.418 Three commenters with the NASD.430 The commenter provisions designed to ensure due believed that the NASD has an inherent opined that the fees associated with the process, the Act has provided, and the conflict of interest with respect to the SuperMontage will exceed those for Commission implements, significant competing interests of market makers SelectNet as a result of the monopoly safeguards that serve to address the 431 and order entry firms.419 Another created. conflicts inherent in the self-regulatory commenter believed that Nasdaq’s The Commission recognizes the model and that protect the legitimate interests will diverge from its market concerns of the commenters, but notes interests of SRO members. participants as it begins to compete with It would be inconsistent with the market makers and ECNs for 421 See STA Letter. 422 NASD’s self-regulatory responsibility for executions.420 One commenter urged See Archipelago Letter. 423 See ETA Letter; Instinet Letter; Island Letter; 432 the Commission to supervise the and Bancorp Letter. In contrast, Archipelago Section 3(a)(26) of the Act defines an SRO as NASD’s ‘‘competitive stance’’ so that believed that the conflicts will diminish if Nasdaq ‘‘[a]ny national securities exchange, registered were entirely independent of the NASD. securities association, or registered clearing agency ‘‘no unfair advantage over market ***.’’ See 15 U.S.C. 78c(a)(26). Section 3(a)(1) of participants is created or even 424 See Archipelago Letter; see also Renaissance Letter. the Act defines an exchange as ‘‘[a]ny organization, association, or group of persons * * * which 425 See Archipelago Letter. constitutes, maintains, or provides a market place 413 15 U.S.C. 78k–1. 426 See Archipelago Letter. See Commission or facilities for bringing together purchasers and 414 See ETA Letter; NexTrade Letter; Instinet discussion at Section V.I.3. sellers of securities * * *.’’ See 15 U.S.C. 78c(a)(1). Letter; Bancorp Letter; STA Letter; Bloomberg 427 See STANY Letter; ACIM Letter; and ITG 433 See 15 U.S.C. 78o–3(b)(4), (7), and (8). Letter; Island Letter; BRUT Letter; Phlx Letter; Letter. ITG requested clarification regarding the fees 434 15 U.S.C. 78o–3(a)(5). See also 15 U.S.C. 78o– Renaissance Letter; ACIM Letter; Erfort Letter; and for the NODF and OCF. 3(b)(9) and (11), and 15 U.S.C. 78k–1(a)(1)(C). The Archipelago Letter (stating that the SuperMontage 428 See Renaissance Letter. will ‘‘pose insurmountable conflicts’’); see also Commission notes that the NASD will file a 429 See Renaissance Letter. Scudder Kemper Letter. separate proposal to establish fees for the 430 See Renaissance Letter. 415 See Bloomberg Letter; see also Renaissance SuperMontage. The NASD has committed to the 431 Letter and Archipelago Letter. See Renaissance Letter. As discussed above, creation of a SuperMontage fee structure that does the Commission notes that the SuperMontage will not discriminate between Nasdaq market 416 See BRUT Letter. not be the sole means for providing or accessing participants that interact with the system on an 417 See Island Letter; Instinet Letter; and liquidity. Broker-dealers may continue to pursue order-delivery versus an automatic execution basis. NexTrade Letter; see also Scudder Kemper Letter. other alternative order routing and execution The NASD has also committed to avoiding systemic 418 See NY Letter and Instinet Letter. services that provide value to their customers. As biases including biases that result from differential 419 See ETA Letter; Archipelago Letter; and a result, the Commission believes that competitive fees or incentives between quotes and orders, Instinet Letter. pressures may limit the fees associated with the whether they are directed, non-directed, or 420 See BRUT Letter. SuperMontage. See discussion at V.I.1. preferenced. See Amendment No. 8, supra not 12. VerDate 11 the NASD to use its regulatory power to Today’s regulatory structure is designed firms.’’ 444 Instinet suggested that the advance Nasdaq’s market interests to the to provide all market centers with proposal, as amended, would allow detriment of its members, and the structural flexibility in order to enhance Nasdaq to use its regulatory advantages Commission intends to be vigilant to competition between market centers, and status as an exclusive SIP to lock in prevent this. As a result, the NASD will while promoting market fairness, its competitive position in the not be able to use its regulatory efficiency, and transparency. marketplace. Archipelago suggested that authority to act in any manner in Nasdaq would not operate in a manner preference to, or prejudice of, Nasdaq or 3. Nasdaq as an Exclusive Securities that is absolutely neutral with respect to any other stock market, marketplace, or Information Processor market centers because ECNs and UTP market participant 435 generally or Prior to Amendment No. 8, several Exchanges would be disadvantaged by specifically because of that entity’s commenters asserted that the Nasdaq as the SuperMontage’s Order Execution relationship to the SuperMontage or Algorithm. an exclusive securities information Nasdaq.436 For example, the NASD has To address concerns about mandatory no rule that would require the use of the processor (‘‘SIP’’) can compel the 440 participation in Nasdaq, in publishing SuperMontage for execution of orders; submission of quotations to Nasdaq. Amendment No. 8 for comment, the and such rules or interpretive positions As such, commenters believed that the Commission noted that the NASD clearly would be inappropriate.437 NASD could compel the submission of agreed to provide an alternative 441 Further, the operation of the orders through the SuperMontage. quotation and transaction reporting SuperMontage by an affiliate of the Also, two commenters stated that facility for NASD members.445 In NASD does not validate its use to satisfy Nasdaq’s proposed treatment of UTP response to Amendment No. 8, several best execution obligations, or replace Exchanges’ principal interest is commenters expressed concern that the required regular and rigorous review inconsistent with its role as the Nasdaq’s regulatory and competitive by broker-dealers of execution quality exclusive SIP, and will discourage advantages were not adequately available from different markets. Broker- competition with competing addressed.446 In particular, commenters 442 dealers will continue to have the exchanges. indicated that Nasdaq’s operation of the responsibility to make an independent Several commenters questioned SuperMontage and status as an determination of how to obtain best whether the SuperMontage would exclusive SIP presented a conflict of execution of their customers’ orders. impact Nasdaq in its capacity as an interest.447 Commenters questioned In addition, the Commission believes exclusive SIP.443 Archipelago stated that whether Nasdaq could be a truly that NQDS Prime should help eliminate Nasdaq could use its status as an voluntary facility as long as it retained any informational advantage accruing to exclusive SIP to gain competitive its status as an exclusive SIP.448 the SuperMontage. Further, Nasdaq has advantages not available to ECNs. Commenters suggested that a asserted that it will not use information Specifically, Archipelago maintained meaningful display alternative to about the source and scope of a reserve that Nasdaq, as an exclusive SIP and the Nasdaq for OTC securities would have size quote to influence reserve size operator of the SuperMontage, could to exist prior to the SuperMontage’s execution priority within access the ACT and OATS systems to implementation in order to truly make SuperMontage, or provide optimized analyze the trading activity of the SuperMontage voluntary.449 reserve size executions based on competitive systems and the order Commenters also asserted that the information residing solely in the Nasdaq, as an exclusive SIP, is 438 routing practices of all market SuperMontage. mandated by Congress to operate in a Finally, the Commission notes that, participants to garner competitive manner that is ‘‘absolutely neutral with under Regulation ATS, ECNs may advantages. Archipelago stressed that Nasdaq, as a market operator, should respect to all market centers.’’ 450 choose whether to register as national One commenter questioned whether securities exchanges and become their not be allowed to compete unfairly for order flow through its role as an SIP neutrality was possible since own SRO, or to register as broker- ‘‘[o]nce Nasdaq enters the execution dealers and comply with the exclusive SIP. Both Archipelago and 439 Instinet suggested that the business, it itself becomes a market requirements of another SRO. 451 SuperMontage would contravene the center. * * *’’ One commenter stated that the only way Nasdaq could 435 This would not preclude the NASD from congressional intent that Nasdaq, as an contracting with Nasdaq for services. exclusive information processor, act in fulfill the dual roles of a securities 436 Moreover, the NASD should not share its a ‘‘manner which is absolutely neutral market and exclusive SIP would be to regulatory data with Nasdaq for business purposes. with respect to all market centers, all treat NASD members and UTP When Nasdaq registers as a national securities Exchanges equally.452 Another exchange, it will have its own regulatory market makers, and all private responsibilities as an SRO separate and apart from 444 Archipelago Letter and Instinet Letter. Also the NASD. Market participants will choose whether 440 to be members of Nasdaq or the NASD. In reviewing See Bloomberg Letter; Scudder Kemper Letter; see Gramm Letter; Scudder Kemper Letter; ACIM for-profit exchanges, including Nasdaq’s proposal, Instinet Letter; and Archipelago Letter. Letter; and BRUT Letter. 441 the Commission is considering ways to minimize See Bloomberg Letter; Scudder Kemper Letter; 445 See Amendment No. 8, supra note 12. Instinet Letter; and Archipelago Letter. the potential heightened conflict of interests. See 446 See Instinet Letter; Brut Letter; NY Letter; 442 also, discussion at Section V.I.3, NASD as an See Archipelago Letter and CSE Letter. Investment Companies Letter; ACIM Letter; Exclusive Securities Information Processor. 443 Under Section 3(a)(22)(B) of the Act, the term Archipelago Letter; Scudder Kemper Letter; and 437 For example, the fact that SOES was available ‘‘exclusive processor’’ is defined as a ‘‘securities CHX Letter. in the past did not mean that broker-dealers were information processor * * * which, directly or 447 See Instinet Letter; Brut Letter; Archipelago forced to use it to execute customer orders, nor did indirectly, engages on an exclusive basis on behalf Letter; and NY Letter. it free a broker-dealer from its duty to consider of any national securities exchange or registered 448 See Instinet Letter; Brut Letter; and NY Letter. price improvement opportunities. securities association * * * in collecting, 449 438 See Amendment No. 8, supra note. processing, or preparing for distribution or See Instinet Letter and Brut Letter. 450 439 See Securities Exchange Act Release No. publication any information with respect to (i) See Instinet Letter and Brut Letter (citing S. 40760 (December 8, 1998), 63 FR 70844 (December transactions or quotations on or effected or made by Rep. No. 94–75, at 11–12 (1975); see also ACIM 22, 1998). To date, two ECNs have applied to means of any facility of such exchange or (ii) Letter; Scudder Kemper Letter; Archipelago Letter; register as exchanges. As noted in note #411, supra, quotations distributed or published by means of any and CSE Letter. PCX has proposed that Archipelago become a electronic system operated or controlled by such 451 See Brut Letter. facility of the Exchange. association.’’ 15 U.S.C. 78c(22). 452 See CHX Letter. VerDate 11 commenter stated that the disseminating market information. behalf of NASD. Amendments to the SuperMontage should be approved only Among other things, they require the NASD’s rules (including changes in within the context of a broader program individual SROs to funnel market market information fees relating to all of reform of Nasdaq’s role in OTC information to a central processor, Nasdaq System securities) are subject to market structure that leaves Nasdaq to which then consolidates the information Commission review under Section 19(b) compete on the merits of its technology into a single stream for dissemination to of the Exchange Act.461 Amendments to and vision with no regulatory the public. In this way, the public is the Nasdaq/UTP Plan are subject to advantages.453 Some commenters assured of access to a highly reliable Commission review under Rule 11Aa3– suggested that if Nasdaq was not source of information that is fully 2.462 Participants may withdraw from required to divest itself of its SIP status, consolidated from all the various market the UTP Plan with thirty days’ prior irreparable harm could be done to the centers that trade a particular security. written notice. competitive landscape for Nasdaq Currently, Nasdaq is registered with The Commission appreciates concerns traded securities.454 the Commission as an exclusive SIP about Nasdaq’s status as an exclusive One commenter expressed concern under Section 11A(b) of the Act.458 SIP, because at the heart of the that if Nasdaq becomes a registered Nasdaq functions as an exclusive commenters’ exclusive SIP argument is exchange, stocks traded on Nasdaq processor in two separate but closely the concern that Nasdaq’s role as an would be excluded from the NASD related activities. First, it is responsible exclusive SIP compels SuperMontage display alternative.455 Instinet stated for the collection of quotation and participation. To address concerns that that a neutral and viable alternative transaction information for the OTC Nasdaq has an advantage as the facility for all Nasdaq stocks with market in Nasdaq-listed securities mandatory collector of quotes and trade sufficient technological resources pursuant to NASD rules. And, second, data for over-the-counter market should be available prior to approval of it is the processor for the UTP Plan. participants, and thus, that the the SuperMontage. Instinet also The UTP Plan was jointly developed SuperMontage would be involuntary, believed that Nasdaq’s role as SIP for and negotiated by its participants, the the NASD has committed to provide Nasdaq-listed securities should be American Stock Exchange (‘‘AMEX’’), NASD members with the ability to opt- 459 discontinued 456 and the SIP for Nasdaq CHX, NASD, PCX, and the Phlx. The out of the SuperMontage by providing securities should not be affiliated with UTP Plan provides for an Operating an alternative quotation and transaction any market center. Instinet said that Committee composed of one reporting facility for NASD members. ownership, governance, and market data representative for each participant. The This would allow NASD members to revenue of such a SIP should be broadly responsibilities of the Operating publish quotes and effect transactions in shared among market centers or vested Committee include oversight of the the over-the-counter market, but not to through a competitive bidding process. consolidation and dissemination of participate in the OCF function of the Instinet also stated that all market quotation information and transaction SuperMontage.463 The facility would be centers should have direct access to the reports, evaluating the processor, and designed to allow NASD members to SIP’s facilities and that its order routing determining cost allocation and revenue meet their obligations under the SEC’s and execution functions should not sharing. The Operating Committee, by Order Handling Rules and Regulation privilege any market center’s individual majority vote of the full participants, ATS, as well as any transaction liquidity pool over another’s. also may terminate the processor, for reporting obligations imposed by NASD In the early 1970’s, the Commission cause, if it determines that the processor rules. The NASD intends its display took the initial steps toward creating a has failed to perform its functions in a alternative, which would be operational central market system in which reasonably acceptable manner, or that contemporaneously with the investors would have access to its reimbursable expenses have become SuperMontage, to provide a market- excessive and are not justified on a cost neutral electronic linkage to the Nasdaq, information from all markets. Congress 460 adopted this fundamental policy basis. as well as other marketplaces. Thus, Under NASD Rules, Nasdaq, acting on determination when it enacted the Nasdaq’s functions as the mandatory behalf of the NASD, collects and Securities Acts Amendments of 1975 over-the-counter data collector will be prepares for distribution information (‘‘1975 Amendments’’).457 To disentangled from its roles as a self- concerning quotations and transactions implement the national market system, regulator and market operator. in the OTC market for Nasdaq-listed the Commission has required the SROs The Commission believes that the securities, including Nasdaq National to act jointly pursuant to various NASD display alternative should help Market System Securities and Nasdaq assuage concerns about Nasdaq’s national market system plans in Small Cap securities. Under the UTP disseminating consolidated market competitive advantages, and further Plan, information concerning quotations distinguish its status as a trading market information. These plans govern all and transactions in participant exchange aspects of the arrangements for and the collector of over-the-counter markets for Nasdaq National Market quotes and trades. The Commission, System securities, but not for Nasdaq 453 therefore, is conditioning its approval of See Brut Letter. Small Cap securities, is collected and 454 See Instinet Letter and Brut Letter. 455 See Instinet Letter. The Commission notes that consolidated by Nasdaq with the 461 Exchange Act Rule 11Aa3–2 establishes the the NASD has committed to provide an alternative information collected by Nasdaq on procedures that govern amendments to each of the quotation and transaction reporting facility for its Plans. In addition, Section 19(b) of the Act, and members who transact business in the residual 458 See 15 U.S.C. 78k–1(b). Rule 19b–4 thereunder, govern proposed rule over-the-counter (‘‘OTC’’) market. The term residual 459 AMEX has withdrawn from the UTP Plan. The changes by the NASD that relate to the Nasdaq OTC market ‘‘refers to transactions by NASD Boston Stock Exchange (‘‘BSE’’) is a limited System. In general, all amendments to the Plans and members otherwise than on an exchange or Nasdaq, participant. A ‘‘limited participant’’ is a national NASD rules must be filed with the Commission, in securities listed on an exchange or Nasdaq, but securities exchange whose participation in the published for public comment, and approved by the not reported elsewhere. See letter from Robert Nasdaq/UTP Plan is restricted to reporting market Commission. Glauber, Chief Executive Officer and President, information. Recently, CSE became a full 462 See 17 CFR 11Aa3–2. NASD, to Arthur Levitt, Chairman, Commission, participant in the UTP Plan. 463 See letter from Robert Glauber, Chief dated December 13, 2000. 460 The UTP Plan terminates in March, 2001. See Executive Officer and President, NASD, to Arthur 456 See also Archipelago Letter. discussion below regarding the need to re-evaluate Levitt, Chairman, Commission, dated December 13, 457 Pub. L. 94–29, 89 Stat. 97 (1975). the plan in light of market changes. 2000. VerDate 11 the SuperMontage on the following, Plan.465 The Commission notes that the members that qualifies, and to which must be implemented prior to or SuperMontage is being implemented in disseminate transaction information and at the same time as the SuperMontage: conjunction with several other market individually identified quotation (1) that the NASD will offer a quote and initiatives, such as Nasdaq becoming an information for these members through trade reporting alternative that satisfies exchange,466 and further, that more the SIP. the Order Handling Rules, Regulation exchanges may begin trading Nasdaq The Commission believes that the ATS, and other regulatory requirements securities in the near future. In light of revised plan should be open to all SROs for ATSs, ECNs, and market makers; (2) the foregoing and the fact that the UTP and that the plan should share that NASD quotes disseminated through Plan will be coming up for renewal and governance of all matters subject to the the exclusive SIP will identify the ATS, consideration by the Commission plan equitably among the SRO ECN, or market maker source of the within the next few months, the participants. The plan should provide quote; and (3) that participation in Commission believes that it is for sharing of market data revenues SuperMontage will be entirely appropriate to discuss its concerns among SRO participants. The voluntary, because NASD quotes will be regarding the UTP Plan in the context of Commission also believes the Plan included in the Nasdaq quotation this Order to initiate a dialog among the should provide a role for participation management system while Nasdaq is the UTP Plan participants. in decision making to non-SROs that exclusive SIP, but only for display Accordingly, the Commission intends have direct or indirect access to the purposes, and the NASD will provide to require as a condition for extending alternative SIP provided by NASD. access to its quotes on a market-neutral the existing plan beyond the March, If negotiations among plan basis. 2001 termination date, that there be participants do not produce a revised The commenters’ other concerns good faith negotiations among the plan plan within six months from the date of about Nasdaq’s role as central processor participants on a revised plan for this order,467 the Commission intends are, in fact, criticisms generally of the Nasdaq securities that provides for promptly to amend the plan directly in current structure for providing either (i) a fully viable alternative a manner consistent with the foregoing. consolidated data. They also blur the exclusive SIP for all Nasdaq securities, The Commission also recognizes that distinction between the roles of Nasdaq or (ii) a fully viable alternative non- the NASD, in its regulatory capacity, as SIP for Nasdaq’s own market, and exclusive SIP in the event that the plan can obtain sensitive market data that Nasdaq’s role as exclusive processor for does not provide for an exclusive SIP. could benefit Nasdaq’s market operation all markets trading Nasdaq-listed If the revised plan provides for an if used for competitive purposes. Thus, securities. The operation of exclusive consolidating SIP, a function the Commission has received assurances SuperMontage’s trading system does not currently performed by Nasdaq, the from Nasdaq that it will not use OATS depend on Nasdaq’s exclusive processor Commission believes that, in order to data to gain an unfair competitive function; rather, UTP Exchanges need avoid conflicts of interest, there should advantage over other market not participate in any aspect of Nasdaq be a presumption that a plan participants.468 The Commission will other than its consolidation of quotes participant, and in particular Nasdaq, maintain vigilant oversight of this and trade information. As noted should not operate such exclusive matter. In addition, in response to the previously, this consolidation function consolidating SIP. The presumption concern that Nasdaq could accrue an grew out of Nasdaq’s origination of this may be overcome if: (i) The plan unfair informational advantage through market. It is subject to renegotiation of processor is chosen on the basis of bona the SuperMontage, the filing was the markets trading Nasdaq securities, fide competitive bidding and the amended to provide, on a real-time and as mentioned previously, Nasdaq participant submits the successful bid; basis, all individual attributable quote has indicated that it is willing to confer and (ii) any decision to award a contract and order information at the three best with all relevant parties about to a plan participant, and any ensuing price levels displayed in the NODF establishing an independent exclusive review or renewal of such contract, is through NQDS Prime, and to identify SIP that is jointly owned by the made without that plan participant’s the sender of all directed orders, exchanges that trade Nasdaq direct or indirect voting participation. If delivered non-directed orders, and securities.464 a plan participant is chosen to operate delivered preferenced orders.469 The such exclusive SIP, the Commission Commission believes that these As a separate policy matter, and in believes there should be a further provisions help to address commenter light of commenters’ concerns, the presumption that the participant- concerns, and demonstrate the NASD’s Commission believes that it is now operated exclusive SIP shall operate intent not to impose any burden on appropriate for the NASD and the UTP completely separate from any order competition not necessary or Exchanges to re-evaluate the UTP matching facility operated by that appropriate in furtherance of the participant and that any order matching purposes of the Act.470 464 See letter from Frank Zarb, Chairman and CEO, Nasdaq, to Senator Phil Gramm, dated facility operated by that participant Notwithstanding the above, the October 24, 2000. The UTP Plan outlines the must interact with the plan-operated Commission recognizes that the ongoing responsibilities of UTP Plan participants but does exclusive SIP on the same terms and evolution of the securities industry not provide a comprehensive or exclusive set of conditions as any other market center requires that traditional interaction of terms that govern the interaction of the markets. Because the UTP Plan only covers distribution and trading Nasdaq listed securities. market participants be reevaluated, and other basic terms, it is not uncommon for the NASD Further, the Commission will expect the may necessitate fundamental structural and UTP Plan Participants to negotiate terms for NASD to provide direct or indirect change. In that regard, the Commission dealing with each other separate from the UTP Plan. access to the alternative SIP, whether is reviewing SIP and market information For instance, the NASD negotiated the terms of participation in the OCF function of SuperMontage exclusive or non-exclusive, by any of its 467 with the UTP Plan’s only active participant, the The Commission will consider allowing an CHX. See Amendment No. 4, supra note 6. In 465 The Commission notes that its discussion of additional 3 months for negotiation if it is requested addition, Nasdaq discussed with Archipelago its possible changes to the UTP Plan should not be by the participants for good cause. participation in the OCF function as a UTP interpreted as necessary pre-conditions to the 468 See Amendment No. 9, supra note 14. Exchange in light of the proposal for Archipelago implementation of the SuperMontage. 469 See Amendment No. 8, supra note 12. to become a facility of the PCX. 466 See Form 1 submitted on November 9, 2000. 470 15 U.S.C. 78o–3(b)(9). VerDate 11 arrangement issues in a context separate ECNs will have the ability to participate increased message traffic that could be from the SuperMontage, and has fairly in the SuperMontage.473 created by the proposal, and other initiated a Market Data Advisory The Commission again notes that changes, such as decimalization.475 Committee under the Federal Advisory mandatory market maker participation Commenters called for Nasdaq to Committee Act. The Commission will in automatic execution is not new. improve its technology and capacity continue to consider market data issues, Mandatory market maker participation prior to implementing the present including through its Advisory in automatic executions has been a changes; to provide assurances that the Committee on Market Data. The characteristic of the Nasdaq market systems can accommodate any Commission may adopt alternative since the 1988 SOES modifications. The foreseeable market conditions; and to market data approaches that supersede Commission believes that many of the correct any present deficiencies before the need for the UTP Plan discussed same principles that served as a catalyst embarking on the implementation of the previously. for the 1988 SOES modifications SuperMontage.476 In addition, one currently exist, including speed and commenter believed that all systems 4. Commission’s Conclusion on certainty of executions at the best specifications should be made available Competition Issues displayed price, market liquidity and for public inspection and comment.477 The Commission believes that Nasdaq depth, investor protection in fast Finally, one commenter expressed the and traditional exchanges must have the moving or volatile markets, and the concern that because proposed NASD flexibility to rethink their structures to maintenance of investor confidence. Rule 4705(g) relieves Nasdaq of all permit appropriate responses to the These continue to be reasons for liability for losses stemming from use of rapidly changing marketplace. Congress automatic executions in the Nasdaq the SuperMontage, Nasdaq has no instructed the Commission to seek to market today. incentive to prevent outages.478 Given ‘‘enhance competition and to allow In the Commission’s view, Nasdaq has this, the commenter recommended that economic forces, interacting with a fair the right to seek a more efficient model there be rigid oversight over Nasdaq’s regulatory field, to arrive at appropriate of doing business. Nasdaq, like other system performance.479 variation in practices and services.’’ 471 markets and market participants, must In response, the NASD stated that, The Commission finds that the be permitted to innovate and adjust to like the commenters, it seriously SuperMontage is consistent with these the dynamic nature of today’s securities considered the impact of the increase in goals in that it is reasonably designed to industry. The Commission believes that trading volume from the new system, promote price discovery, best execution, the NASD has developed a reasonable and the corresponding stress that such liquidity, and market innovation, while system architecture for the an increase could place on Nasdaq’s continuing to preserve competition SuperMontage that attempts to computer systems.480 The NASD among market centers. strengthen its market while explained that the NODF has been In addition, the Commission finds accommodating the business operations designed, and will be constructed, that the SuperMontage does not unfairly and interests of all Nasdaq Quoting around a state-of-the-art ‘‘scaleable’’ discriminate among brokers and dealers. Market Participants, and without architecture that Nasdaq can easily First, the Commission notes that the unfairly discriminating against UTP expand to meet future demands on the proposal was amended to eliminate exchanges. The Commission finds that system. Specifically, the NASD distinctions between automatic the proposal is consistent with Section represented that the new architecture execution participants and order 15A(b)(9) of the Act in that it does not for the NODF does not have the delivery participants with regard to impose any burden on competition not limitations associated with the order execution priority. Second, the necessary or appropriate in furtherance underlying systems for SOES and proposal always has provided ECNs of the purposes of the Act.474 In short, SelectNet. The NODF architecture has with the opportunity to participate the Commission concludes that the been developed to provide for full either as automatic execution ECNs or SuperMontage represents a market horizontal scalability. This means that order delivery ECNs.472 Third, the innovation that is likely to strengthen Nasdaq will be able to run multiple NASD amended the proposal to allow the Nasdaq market while leaving room replications of the NODF/NNMS ECNs, market makers, and UTP for further market initiatives by system, called ‘‘Security Processors.’’ Exchanges to accept Liability Orders competing markets and Nasdaq market Each Security Processor will contain the through the directed order process. participants. entire NODF/NNMS functionality to Further, the NASD amended the support the quotes, executions, and proposal to have the execution J. Technology Issues orders for a given subset of Nasdaq algorithm default to a price/time Many aspects of the proposal will securities. The Security Processors will priority algorithm and allow executions require significant technological not communicate with one another in based on priorities other than access changes to the present system 475 See ITAC Letter; ETA Letter; Bancorp Letter; fees. By providing ECNs with the option architecture, particularly the NODF and Bloomberg Letter; STA Letter; STANY Letter; of automatic execution or order the OCF. Several commenters expressed NexTrade Letter; Salomon Smith Barney Letter; delivery, by amending the directed concern about the NASD’s technological Instinet Letter; and MSDW Letter; see also CHX order process, by revising the Order capability to implement the proposal, Letter; Renaissance Letter; and ACIM Letter. 476 See ETA Letter; Bancorp Letter; STANY Letter; Execution Algorithms, and by giving particularly in light of Nasdaq’s past STA Letter; Salomon Smith Barney Letter; Instinet ECNs that accept automatic executions system delays and outages, the Letter; and NexTrade Letter. the ability to request a cancellation in 477 See Bloomberg Letter. order to avoid dual liability, the 473 The Commission also notes that like today, all 478 See Archipelago Letter. Commission believes that the NASD has ECNs (even if they are order delivery participants 479 See Archipelago Letter. made reasonable efforts to ensure that in the system) will be able to automatically execute 480 Nasdaq also noted that while market against market maker quotes. In addition, order participants may give Nasdaq multiple levels of delivery ECNs will continue to receive messages orders for display in the system, they are not 471 See Senate Report at p. 8, supra note 37. that include the identity of the market participant required to do so. Market participants may opt to 472 Amendment No. 6 to the proposal makes clear hitting their quote. See Amendment No. 8, supra give Nasdaq only their top of file—as they do that UTP Exchanges have a similar option. See note note 12. today—as long as they comply with the 9, supra. 474 15 U.S.C. 78o–3(b)(9). Commission’s Order Handling Rules. VerDate 11 the processing of quotes, executions, or Further, the NASD’s international developed and prior to testing, as orders. In addition, the NASD noted that development efforts have been out- appropriate, and to update periodically Security Processors could be added, as sourced to separate and distinct teams, this information, including a necessary, to allow the system to with only two individuals coming from description of all test results. expand and increase in capacity as existing NASD staff—neither of whom Finally, the Commission notes that volume grows. The NASD stated that were involved in any related Nasdaq the NASD has provided assurance that the scaleable Security Processor market systems. All systems technological resources will not be approach should eliminate several development for the international diverted from Nasdaq’s decimalization different problems that market markets is being performed by a joint efforts to any other Nasdaq initiative, participants currently encounter, venture company and has no impact on including the current proposal. In any including (1) delays for current users; domestic Nasdaq development or case, the Commission notes that the (2) delays in updating quotes to reflect resources.484 Finally, in response to the NASD has committed to delaying an execution; and (3) performance concerns of some commenters, Nasdaq implementation of the proposed system problems associated with SelectNet. For will attempt to roll out the system on a until after the full implementation of the same reasons, the NASD is confident measured basis.485 decimal pricing.487 that the NODF will be able to meet all After considering the above representations, the Commission K. Impact on Competition, Efficiency capacity requirements for decimal and Capital Formation pricing in the U.S. securities markets.481 believes that the NASD has provided the Further, according to the NASD, the appropriate assurance that Nasdaq has a Section 3(f) of the Act requires that proposed system will not be affected by plan to address the technological the Commission consider whether the any announced capacity constraints on concerns and objections raised about the NASD’s proposal will promote Nasdaq’s systems because the NODF is SuperMontage. The Commission notes efficiency, competition, and capital based on a different architecture, as the importance of the reliability of formation.488 As discussed above, the described above. Therefore, the capacity systems capability and capacity to Commission has carefully considered constraints Nasdaq experiences with its investors, market intermediaries, and the merits of the issues raised by each current architecture will not affect the the markets as a whole. The of the commenters, and has concluded development or operation of the NODF Commission expects the NASD and that the design of SuperMontage, in architecture. Nasdaq to continually evaluate and conjunction with the conditions In Amendment No. 5, the NASD monitor the development of the imposed by the Commission, attempts further stated that construction of the SuperMontage and to implement any to accommodate all Nasdaq market proposed system has not diverted additional technological changes as participants and does not prohibit the resources from its continuing necessary before fully implementing the development of other trading systems or decimalization efforts. The NASD system. The Commission also expects market innovation. The Commission emphasized that it has not and will not, the NASD to demonstrate that the believes that the SuperMontage is a in any way, divert technology resources development and capabilities of the reasonable effort by the NASD to from its decimalization efforts. The system satisfy the Commission’s enhance the quality of the Nasdaq NASD represented that the system Automation Review Policy 486 before market by providing more information development team consists of personnel implementing the proposed system. In to investors, promoting greater that are exclusively dedicated to the particular, the Commission expects the efficiency in executions, and increasing proposed system and are completely NASD to provide to the Commission overall market transparency. While the separate from other Nasdaq software staff documentation called for in ARP II SuperMontage will provide a central teams. In addition, the NASD stated that relating to systems change notifications, means for accessing liquidity in Nasdaq it uses outside consultants to augment including, but not limited to: (1) stocks, it does not represent an internal staff where needed. Capacity estimates; (2) test plans and exclusive means, nor does it prevent Specifically, according to the NASD, schedules; (3) contingency protocols; (4) broker-dealers from seeking alternative the SuperMontage is being built using vulnerability assessments; and (5) order routing and execution services. In the Tandem System. On the other hand, production schedules (e.g., project addition, the Commission believes that Nasdaq is modifying its existing Unisys- management and task schedules). The the proposal should promote based quotation platform to Commission expects the NASD to competition and capital formation by accommodate decimal pricing, and that provide this information as it is providing market makers and ECNs with project is staffed with a dedicated several quote and order management Unisys-based development team.482 The with other Tandem-based applications. The options (e.g., unattributable quotes and decimalization of other Tandem legacy NASD asserted that personnel resources applications, such as SOES, SelectNet, and ACT, reserve size), and by providing ECNs for decimals will take complete priority use different resources. and UTP Exchanges the ability to over other Nasdaq projects, including 484 All NASD and NASD Regulation activities participate in the SuperMontage as the SuperMontage.483 have been out-sourced to Electronic Data Systems, either automatic execution participants which relieves the Nasdaq team of any billing or 489 administrative technology burdens. Systems or order delivery participants. 481 See Amendment No. 5, supra note 8. development for the American Stock Exchange is 482 The NASD represented that there are 30 managed by a fully independent team that is now VI. Amendment No. 9 programmers who are dedicated to Nasdaq’s efforts out-sourced to SIAC. In Amendment No. 9, the NASD to achieve decimals. Nasdaq explained that these 485 On a temporary basis, it will be possible to selected how preferenced orders would resources will not be used or otherwise diverted operate the NODF side-by-side with the NNMS and from its efforts to achieve trading in a decimal SmallCap SOES systems, and for a security to trade be processed. Under the Amendment, environment, nor will other resources related to on either the NODF or the NNMS/SmallCap SOES, preferenced orders will be executed achieving decimalization—such as quality but not both simultaneously. In Amendment No. 5, only if the preferenced Nasdaq Quoting assurance and testing personnel—be used at the the NASD described the roll out of the system in Market Participant or UTP Exchange is expense of completing decimalization efforts. greater detail. See Section III.K, supra. 483 The NASD also explained that the 486 See Securities Exchange Act Release Nos. SuperMontage uses dedicated Tandem computing 27445 (November 16, 1989), 54 FR 48703 487 See Amendment No. 6, supra note 9. resources for development and integration testing (November 24, 1989) and 29185 (May 9, 1991), 56 488 15 U.S.C. 78c(f). while sharing the actual production testing facilities FR 22490 (May 15, 1991) (‘‘ARP II’’). 489 15 U.S.C. 78c(f). VerDate 11 at the BBO. This limitation ensures that orders and reserve size, as well as Commission, and all written customers will always receive represent that Nasdaq will not use communications relating to the executions at the BBO and should assist OATS data to gain an unfair competitive proposed rule change between the broker-dealers in fulfilling their best advantage over other market Commission and any person, other than execution obligations. The Commission participants. The Commission notes that those that may be withheld from the notes that those market participants in Amendment No. 8 the NASD public in accordance with the wishing to access a Nasdaq Quoting specifically sought comment on two provisions of 5 U.S.C. 552, will be Market Participant or UTP Exchange possible alternatives for processing available for inspection and copying at outside of the BBO may submit directed preferenced orders with the clear the Commission’s Public Reference orders through the system or submit intention of withdrawing one of the Room. Copies of such filing will also be orders outside of Nasdaq (via private alternatives. Further, the Commission available for inspection and copying at links or through ECNs). notes that the description in the principal office of the Exchange. All The Commission finds that Amendment No. 8 made clear that submissions should refer to File No. Amendment No. 9 is consistent with preferenced orders would be processed SR–NASD–99–53 and should be Section 15A(b)(6) of the Act,490 which against displayed quote/orders and submitted by February 16, 2001. requires that the rules of an association reserve size. Accordingly, the be designed to promote just and Commission believes that there is good VIII. Conclusion equitable principles of trade and to cause, consistent with Sections For the reasons discussed above, the remove impediments to and perfect the 15A(b)(6) and 19(b) of the Act 491 to Commission finds that the mechanism of a free and open market approve Amendment No. 9 to the SuperMontage proposal, as amended, is and a national market system. The proposal on an accelerated basis. consistent with the requirements of the Commission also finds good cause to VII. Solicitation of Comments Act (specifically, Sections 3, 11A, and approve Amendment No. 9 to the 15A of the Act) and the rules and proposed rule change prior to the Interested persons are invited to regulations thereunder applicable to a thirtieth day after the date of submit written data, views and national securities association. publication of notice of filing of the arguments concerning Amendment No. It is therefore ordered, pursuant to amendment in the Federal Register. 9, including whether Amendment No. 9 Section 19(b)(2) of the Act,492 that the Specifically, Amendment No. 9 merely is consistent with the Act. Persons SuperMontage proposal (SR–NASD–99– withdraws one alternative to the making written submissions should file 53), as amended, be and hereby is processing of preferenced orders, which six copies thereof with the Secretary, approved. was noticed in Amendment No. 8, and Securities and Exchange Commission, makes a technical correction to the 450 Fifth Street, NW., Washington, DC By the Commission. definition of preferenced orders to make 20549–0609. Copies of the submission, Margaret H. McFarland, the definition conform with the all subsequent amendments, all written Deputy Secretary. description of how preferenced orders statements with respect to the proposed [FR Doc. 01–2381 Filed 1–25–01; 8:45 am] are processed against displayed quote/ rule change that are filed with the BILLING CODE 8010–01–P 490 15 U.S.C. 78o–3(b)(6). 491 15 U.S.C. 78o–3(b)(6) and 78s(b). 492 15 U.S.C. 78s(b)(2). VerDate 11 Part IV Department of Transportation Federal Transit Administration Over-the-Road Bus Accessibility Program Grants; Notice VerDate 11 DEPARTMENT OF TRANSPORTATION Accessibility Program and the 21). Funds have been appropriated for procedures FTA will use to determine this program under the Department of Federal Transit Administration which projects it will fund. It includes Transportation and Related Agencies all of the information needed to apply Appropriations Act, 2001, Pub.L. 106– Over-the-Road Bus Accessibility for an OTRB Accessibility Program 346; however, a .22 percent rescission Program Grants grant. was required pursuant to section AGENCY: Federal Transit Administration This announcement is available on 1403(a) of the FY 2001 Omnibus (FTA), DOT. the Internet on the FTA website at: Consolidated Appropriations Act. [http://www.fta.gov/library/legal/federal ACTION: Notice of availability of funds; B. Background Solicitation of grant applications. register/2001/index.htm]. FTA will announce final selections on the website Over-the-road buses are used in SUMMARY: The U.S. Department of and in the Federal Register. intercity fixed-route service as well as Transportation (DOT) Federal Transit DATES: Complete applications for OTRB other services, such as charter and tour Administration (FTA) announces the Accessibility Program grants must be bus services. These services are an availability of funds in fiscal year (FY) submitted to the appropriate FTA important element of the U.S. 2001 for the Over-the-Road Bus (OTRB) regional office (see Appendix A) by the transportation system. TEA–21 Accessibility Program, authorized by close of business April 27, 2001. The authorized FTA’s Over-the-road Bus Section 3038 of the Transportation appropriate FTA regional office is that Accessibility Program to assist over-the- Equity Act for the 21st Century (TEA– office which serves the state in which road bus operators in complying with the Department’s Over-the-road Bus 21), Pub. L. 105–178. The OTRB an applicant’s headquarters office is Accessibility rule, ‘‘Transportation Accessibility Program makes funds located. FTA intends to announce grant Services for Individuals with available to private operators of over- selections in July 2001, and it is Disabilities (ADA)’’ (49 CFR part 37) the-road buses to finance the anticipated that grants will be made by published in a Federal Register notice incremental capital and training costs of September 30, 2001, the end of the on September 24, 1998. complying with DOT’s over-the-road Federal fiscal year. FTA will accept bus accessibility final rule, published in Summary of DOT’s Over-the-Road comments on this notice until (30 days Bus Accessibility Rule. Under the over- a Federal Register Notice on September after date published). Based on input, 24, 1998. The OTRB Accessibility the-road bus accessibility rule, all new FTA may provide amending or buses obtained by large (Class I carriers, Program calls for national solicitation of clarifying program information. applications, with grantees to be i.e., those with gross annual operating ADDRESSES: Comments and questions selected on a competitive basis. FTA’s revenues of $5.3 million or more), fixed- related to this notice can be mailed, FY 2001 Appropriation Act makes route carriers, starting in 2000, must be Federal funds available to intercity faxed, or electronically submitted to the accessible, with wheelchair lifts and tie- fixed-route providers and other OTRB following: Sue Masselink, Federal downs that allow passengers to ride in providers at up to 90 percent of the Transit Administration, Room 9315, 400 their own wheelchairs. The rule project cost. 7th Street, S.W., Washington, D.C. requires the fixed-route carriers’ fleets to A total of $24.3 million is available 20590 (FAX (202) 366–7951, e-mail be completely accessible by 2012. The for the program over the life of TEA–21. address: [email protected]). buses acquired by small (gross operating The guaranteed level of funding FOR FURTHER INFORMATION CONTACT: The revenues of less than $5.3 million available for intercity fixed-route service appropriate FTA Regional annually) fixed-route providers also are was $2 million in FYs 1999 and 2000, Administrator (Appendix A) for required to be lift-equipped, although and is $3 million in FY 2001, and application-specific information and they do not have a deadline for total $5.25million in FYs 2002 and 2003, for issues. For general program information, fleet accessibility. Small providers also a total of $17.5 million. The guaranteed contact Sue Masselink, Office of can provide equivalent service in lieu of level of funding for other over-the-road Program Management, (202) 366–2053, obtaining accessible buses. Starting in bus services, including charter and tour e-mail: [email protected]. A 2001, charter and tour companies will bus, is $1.7 million per year from FYs TDD is available at 1–800–877–8339 have to provide service in an accessible 2000 and 2003, for a total of $6.8 (TDD/FIRS). bus on 48 hours’ advance notice. Fixed- million. SUPPLEMENTARY INFORMATION route companies must also provide this For FY 2001, $3 million was kind of service on an interim basis until appropriated for intercity fixed-route Table of Contents their fleets are completely accessible. service providers and $1.7 million was I. General Program Information Small carriers who provide mostly appropriated for other over-the-road II. Guidelines for Preparing Grant charter or tour service and also provide service providers. After applying the .22 Applications a small amount of fixed-route service percent reduction for the government- III. Submission of Applications and Grant can meet all requirements through 48- wide rescission required by the FY 2001 Review Process hour advance-reservation service. Small Omnibus Consolidated Appropriations Appendix A FTA Regional Offices carriers have an extra year to begin Act, Pub.L. 106–554, the amount Appendix B Sample OTRB Accessibility complying with the requirements which available for the OTRB Accessibility Program Project Budget apply to them starting in October 2001, Appendix C Certifications and Assurances Program has been reduced to Appendix D Grant Application Checklist compared to October 2000 for large $4,689,660. Of this amount, $2,993,400 Appendix E OMB Standard Form 424, carriers. is available to providers of intercity ‘‘Federal Assistance’’ Specifications describing the design fixed-route service, and $1,696,260 is features that an over-the-road bus must available to other providers of over-the- I. General Program Information have to be readily accessible to and road bus services, including local fixed- usable by persons who use wheelchairs route service, commuter service, and A. Authority or other mobility aids required by the charter and tour service. The program is authorized under ‘‘Americans with Disabilities Act This announcement describes section 3038 of the Transportation Accessibility Guidelines for application procedures for the OTRB Equity Act for the 21st Century (TEA– Transportation Vehicles: Over-the-Road VerDate 11 Buses’’ rule (36 CFR part 1192) were in addition to bus transportation such as resources and technical assistance to published in another Federal Register meals, lodging, admission to points of thousands of disability organizations, Notice on September 28, 1998. interest or special attractions). While consumers with disabilities, and some commuter service may also serve transportation operators. It maintains a C. Scope the needs of some intercity fixed-route resource center with the most up-to-date Improving mobility and shaping passengers, the statute includes information on transportation America’s future by ensuring that the commuter service in the definition of accessibility. Project Action may be transportation system is accessible, ‘‘other’’ service. Commuter service contacted at: Project Action, 700 integrated, efficient and offers flexibility providers should apply for these funds, Thirteenth Street, N.W., Suite 200, of choices is a key strategic goal of the even though the services designed to Washington, DC 20590, Phone: 1–800– Department of Transportation. Over-the- meet the needs of commuters may also 659–6428, Internet address: http:// road Bus Accessibility projects will provide service to intercity fixed-route www.projectaction.org/. improve mobility for individuals with passengers on an incidental basis. If a disabilities by providing financial service provider can document that G. Grant Criteria assistance to help make vehicles more than 50 percent of its passengers FTA will award grants based on: accessible and provide training to are using the service as intercity fixed- a. The identified need for over-the- ensure that drivers and others route service, the provider may apply road bus accessibility for persons with understand how to use accessibility for the funds designated for intercity disabilities in the areas served by the features as well as how to treat patrons fixed-route operators. applicant; with disabilities. F. Eligible Projects b. The extent to which the applicant D. Eligible Applicants demonstrates innovative strategies and Projects to finance the incremental financial commitment to providing Grants will be made directly to capital and training costs of complying access to over-the-road buses to persons operators of over-the-road buses. with DOT’s over-the-road bus with disabilities; Intercity, fixed-route over-the-road bus accessibility rule (49 CFR Part 37, c. The extent to which the over-the- service providers may apply for the subpart H) are eligible for funding. road bus operator acquires equipment nearly $3 million available to intercity Incremental capital costs eligible for required by DOT’s over-the-road bus fixed-route providers in FY 2001. Other funding include adding lifts, tie downs, accessibility rule prior to the required over-the-road bus service providers, moveable seats, doors and all labor costs timeframe in the rule; including operators of local fixed-route associated with work on the vehicle service, commuter service, and charter needed to make new vehicles accessible. d. The extent to which financing the or tour service may apply for the nearly Retrofitting vehicles with such costs of complying with DOT’s rule $1.7 million available in FY 2001 for accessibility components is also an presents a financial hardship for the these providers. OTRB operators who eligible expense. Please see Buy applicant; and provide intercity, fixed-route service America section for further e. The impact of accessibility and another type of service, such as determination of eligibility. requirements on the continuation of commuter, charter or tour, may apply Funds may be awarded by FTA for over-the-road bus service, with for both categories of funds with a single costs already incurred by the applicants. particular consideration of the impact of application. Private for-profit operators For example, new wheelchair accessible the requirements on service to rural of over-the-road buses are eligible to be vehicles delivered since June 9, 1998, areas and for low-income individuals. direct applicants for this program. This the date that the TEA–21 was signed These are the statutory criteria upon is a departure from the other FTA into law, are eligible for funding under which funding decisions will be made. programs in which the direct applicant the program. Vehicles of any age that In addition to these criteria, FTA may must be a state or local public body. have been retrofitted with lifts and other also consider other factors, such as the accessibility components since June 9, size of the applicant’s fleet and the E. Vehicle and Service Definitions 1998 are also eligible for funding. approximate proportion of use the An ‘‘over-the-road bus’’ is a bus Eligible training costs are those vehicle will get for the services eligible characterized by an elevated passenger required by the final accessibility rule as under the category of funds for which deck located over a baggage described in 49 CFR 37.209. These the applicant is applying. Funding compartment. activities include training in proper decisions may also take into Intercity, fixed-route over-the-road operation and maintenance of consideration whether intercity fixed- bus service is regularly scheduled bus accessibility features and equipment, route carriers are large (Class I carriers, service for the general public, using an boarding assistance, securement of i.e., those with gross annual operating over-the-road bus that: operates with mobility aids, sensitive and appropriate revenues of $5.3 million or more) or limited stops over fixed routes interaction with passengers with small (gross operating revenues of less connecting two or more urban areas not disabilities, and handling and storage of than $5.3 million annually). in close proximity or connecting one or mobility devices. The costs associated H. Grant Requirements more rural communities with an urban with developing training materials or area not in close proximity; has the providing training for local providers of The grant application must include capacity for transporting baggage carried over-the-road bus services for these documentation necessary to meet the by passengers; and makes meaningful purposes are eligible expenses. requirements of FTA’s Nonurbanized connections with scheduled intercity FTA has sponsored the development Area Formula program (49 U.S.C. 5311). bus service to more distant points. of accessibility training materials for Technical assistance regarding these Other over-the-road bus service means public transit operators. FTA-funded requirements is available in each FTA any other transportation using over-the- Project Action is a national technical regional office. Federal requirements road buses, including local fixed-route assistance program to promote apply only to the incremental cost of service, commuter service, and charter cooperation between the disability adding the wheelchair accessibility or tour service (including tour or community and transportation industry. features, either to new vehicles or when excursion service that includes features Project Action provides training, retrofitting existing vehicles. VerDate 11 Training costs are not subject to all funding. Where more than one bus is employees in the service area are not requirements. For example, labor purchased, the grantee must consider represented by a union. When DOL protections, Buy America, and school the incremental cost increase for the determines that employee protective transportation are not applicable to entire procurement when determining if arrangements comply with labor training assistance. the small purchase waiver applies. For protection requirements, DOL will 1. Buy America. In the OTRB example, if $30,000 is the incremental provide a certification to FTA. The grant Accessibility program, FTA’s Buy cost for the accessibility features eligible agreement between FTA and the grant America regulations, 49 CFR part 661, under this program per bus (regardless applicant incorporates by reference the apply to the incremental capital cost of of the Federal share contribution), then employee protective arrangements making vehicles accessible. Those a procurement of three buses with a certified by DOL. regulations do not apply to associated total such cost of $90,000, would qualify Applicants must identify any labor labor costs. The following discussion for the small purchase waiver. No organizations that may represent their relates to the contract between the special application to FTA would be employees and all labor organizations grantee and the prime contractor. required. that represent the employees of any The ‘‘General Requirements’’ found at The grantee must obtain a other transit providers in the service 49 CFR 661.5 apply to that portion of certification from the bus manufacturer area of the project. the accessibility system being funded. that all items included in the For each local of a nationally That section requires that all of the incremental cost for which the applicant affiliated union, the applicant must manufacturing processes for the product is applying for funds meet Buy America provide the name of the national take place in the United States and that requirements. organization and the number or other all components of the product be made The Buy America regulations can be designation of the local union. (For in the United States. A component is found at www.fta.dot.gov/library/legal/ example, Amalgamated Transit Union considered domestic if it is 49961.htm. local 1258.) Since DOL makes its manufactured in the U.S.A., regardless 2. Labor Protection. Before FTA may referral to the national union’s of the origin of its subcomponents. The award a grant for capital assistance, 49 headquarters, there is no need to lift, the moveable seats, and the U.S.C. 5333(b) requires that fair and provide a means of contacting the local securement devices will all be equitable arrangements must be made to organization. considered components for purposes of protect the interests of transit employees However, for each independent labor this program; accordingly, a ‘‘General affected by FTA assistance. Those organization (i.e., a union that is not Requirements’’ analysis should be arrangements must be certified by the affiliated with a national or applied to each of these items Secretary of Labor as meeting the international organization) the local individually. Should a recipient choose requirements of the statute. When a information will be necessary (name of to request funding for only a specific labor organization represents a group of organization, address, contact person, component, such as the lift or the affected employees in the service area of phone, fax numbers). securement device, then the Buy an FTA project, the employee protective Where a labor organization represents America requirements would apply only arrangement is usually the product of transit employees in the service area of to that item funded by FTA. negotiations or discussions with the the project, DOL must refer the Three exceptions to the general union. The grant applicant can facilitate proposed protective arrangements to requirements that can be found at 49 Department of Labor (DOL) certification each union and to each recipient. For CFR 661.7: first, a waiver may be by identifying in the application any this reason, please provide DOL with a requested when the application of the previously certified protective contact person, address, telephone regulation is not in the public interest; arrangements that have been applied to number and fax number for your second, the general requirements will similar projects undertaken by the grant company, and associated union not apply if materials and products applicant, if any. Receiving funds under information. being procured are not produced in the the OTRB Accessibility program, DOL issued a Federal Register Notice United States in sufficient and however, will not require the grantee’s addressing the new TEA–21 programs, reasonably available quantities and of a employees to be represented by including the OTRB Accessibility satisfactory quality; and third, a price organized labor. Upon receipt of a grant Program, ‘‘Amendment to Section differential waiver will be available application requiring employee 5333(b) Guidelines to Carry Out New under this program only if the grantee protective arrangements, FTA will Programs Authorized by the conducts a competitive procurement transmit the application to DOL and Transportation Equity Act for the 21st (see Competitive Procurement Section, request certification of the employee Century (TEA–21); Final Rule, dated below). FTA approval must be received protective arrangements. In accordance July 28, 1999. FTA issued a ‘‘Dear by the recipient of FTA funds prior to with DOL guidelines, DOL notifies the Colleague’’ letter, dated December 5, the execution of contract. relevant unions in the area of the project 2000, addressing DOL processing of It should also be noted that FTA has that a grant for assistance is pending grant applications. Attached to the letter issued a general public interest waiver and affords the grant applicant and is an application checklist which for all purchases under the Federal union the opportunity to agree to an provides information that DOL must ‘‘small purchase’’ threshold, which is arrangement establishing the terms and have in order to review and certify FTA currently set at $100,000. This waiver conditions of the employee protections. grant applications. This letter and can be found in 49 CFR 661.7, If necessary, DOL furnishes technical attachment can be found at: http:// Appendix A(e). In section 3038(b) of and mediation assistance to the parties www.fta.dot.gov/office/public/ TEA–21, Congress authorized FTA during their negotiations. The Secretary c0019.html. Questions concerning financing of the incremental capital of Labor may determine the protections protective arrangements and related costs of compliance with DOT’s OTRB to be certified if the parties do not reach matters pertaining to transit employees accessibility rule. Consistent with this an agreement after good faith bargaining should be addressed to the Division of provision, the small purchase waiver and mediation efforts have been Statutory Programs, Department of applies only to the incremental cost of exhausted. DOL will also set the Labor, 200 Constitution Avenue, NW., the accessibility features FTA is protective conditions when affected Room N–5411, Washington, DC 20210; VerDate 11 telephone (202) 693–0126, fax (202) the notice of a conviction, the grantee/ transportation and providing 219–5338. employer must have taken appropriate information to legislators about the 3. Competitive Procurement. Federal action against the employee or have services a recipient provides are not procurement requirements apply to FTA required participation in a drug abuse prohibited, nor is using non-Federal funds awarded to state and local assistance or rehabilitation program. funds for lobbying, so long as the governments and private nonprofit 6. Nondiscrimination Requirements. required disclosures are made. agencies under 49 CFR parts 18 and 19. 49 U.S.C. section 5332 states that ‘‘a 12. Environmental Protection. Neither To the extent a direct recipient of FTA person (defined broadly) may not be incremental capital costs associated funds under this program is a private excluded from participating in, denied a with making vehicles wheelchair for-profit entity, the Federal benefit of, or discriminated against, accessible nor training costs involve procurement requirements do not apply. under a project, program, or activity significant environmental impacts. 4. Debarment, Suspension and Other receiving financial assistance (from Projects that do not involve significant Responsibility Matters. Pursuant to FTA) because of race, color, creed, environmental impacts are considered Executive Order 12549; 41 USC 701; national origin, sex, or age.’’ ‘‘categorical exclusions’’ in FTA’s and 49 CFR part 29, grantees must 7. Title VI. Grantees must assure FTA procedures because they have been ensure that FTA funds are not given to that transit services and benefits categorically excluded from FTA’s anyone who has been debarred, obtained with FTA assistance will be requirements to prepare environmental suspended, or declared ineligible or provided in a nondiscriminatory documentation. (49 USC part 622, voluntarily excluded from participation manner, without regard to race, color, or incorporating 23 CFR part 771) in federally assisted transactions. The national origin. burden of disclosure is on those 8. Disadvantaged Business Enterprise. 13. Planning. Applicants are debarred or suspended. The U.S. Grantees must assure FTA that encouraged to notify the appropriate General Services Administration (GSA) disadvantaged business enterprises state departments of transportation and issues a document titled ‘‘Lists of (DBEs) are provided the maximum metropolitan planning organizations Parties Excluded from Federal opportunity to compete for FTA-assisted (MPO) in areas likely to be served by Procurement or Nonprocurement contracts and procurements. equipment made accessible through Programs’’ monthly. The list is available 9. Equal Employment Opportunity funds made available in this program. on the GSA website (http// (EEO). The grantee must assure that it Those organizations, in turn, should www.gsa.gov/index). If at any time the will not discriminate against any take appropriate steps to inform the grantee or other covered entity learns employee or applicant for employment public, and individuals requiring fully that a certification it made or received because of race, color, religion, sex, accessible services in particular, of was erroneous when submitted or if disability, age or national origin. operators’ intentions to expand the circumstances have changed, disclosure 10. Americans with Disabilities Act accessibility of their services. to FTA is required. and Section 504. Compliance with the Incorporation of funded projects in the 5. Drug-Free Workplace. Grantees Americans with Disabilities Act of 1990 plans and transportation improvement must maintain a drug-free workplace for (ADA) (Public Law 101–336) and DOT’s programs of states and metropolitan all employees and have an anti-drug implementing regulations (49 CFR parts areas by states and MPOs also is policy and awareness program. The 27, 37, and 38) and section 504 of the encouraged, but is not required. grant applicant must certify to FTA that Rehabilitation Act of 1973, as amended, II. Guidelines for Preparing Grant it will provide a drug-free workplace are eligibility requirements for Federal Application and comply with all requirements of the financial assistance. Section 504 Drug-Free Workplace Act of 1988 prohibits discrimination on the basis of FTA is conducting a national (Public Law 100–690) and U.S. DOT’s disability by recipients of Federal solicitation for applications under the implementing regulations, 49 CFR part financial assistance. The ADA prohibits OTRB Accessibility program. Grant 29, Subpart F. The grantee is required to discrimination against persons with awards will be made on a competitive provide a written Drug-Free Workplace disabilities in the provision of basis. Although most FTA grant policy statement notifying employees transportation services. applications are now submitted that the unlawful manufacture, 11. Restrictions on Lobbying. Federal electronically, paper applications for the distribution, dispensing, possession, or financial assistance may not be used to OTRB Accessibility program will be use of a controlled substance is influence any member of Congress or an accepted. An original and two copies of prohibited in the workplace and stating officer or employee of any agency in the application must be submitted to the specific actions that will be taken for connection with the making of any appropriate FTA Regional Office. The violations. The ongoing drug-free Federal contract, grant, or cooperative OTRB operators should submit the awareness program must inform agreement. The state, subrecipients, and application to the office in the region in employees about the dangers of drug third party contractors at any tier which its headquarters office is located. abuse; about any available drug awarded FTA assistance exceeding The application should provide counseling, rehabilitation, and $100,000 must sign a certification so information on all items for which you employee assistance programs; about stating and also must disclose the are requesting funding in FY 2001. The penalties that may be imposed; and that expenditure of non-Federal funds for application must include the following employees are to be aware that the such purposes (49 CFR part 20). Other elements: recipient operates a drug-free Federal laws also govern lobbying workplace. An employee of an FTA activities. For example, Federal funds 1. Transmittal Letter grantee is required to report in writing may not be used for lobbying This addresses basic identifying any conviction for a violation of congressional representatives or information, including: criminal drug statute occurring in the senators indirectly, such as by workplace, and the grantee/employer is contributing to a lobbying organization a. Grant applicant. required to provide written notice to or funding a grass-roots campaign to b. Contact name, address, fax and FTA within 10 days of having received influence legislation (31 U.S.C. 1352). phone number. the notice. Within 30 days of receiving General advocacy for over-the-road bus c. Amount of grant request. VerDate 11 d. Type of services for which funds 5. Labor Information Issued on: January 19, 2001. are sought, either intercity fixed route Hiram J. Walker, a. Identify any labor organizations services, other services, or both. Associate Administrator for Program e. For fixed-route carriers, whether that may represent your employees and Management. you are a large (Class I, with gross all labor organizations that represent the annual operating revenues of $5.3 employees of any transit providers in APPENDIX A—FTA REGIONAL million or more) or small (gross the service area of the project. For each OFFICES operating reveues of less than $5.3 local of a nationally affiliated union, the Region I—Massachusetts, Rhode Island, million annually) carrier. applicant must provide the name of the Connecticut, New Hampshire, Vermont and national organization and the number or Maine 2. Project Eligibility other designation of the local union. Richard H. Doyle, FTA Regional Every application must: (For example, Amalgamated Transit Administrator, Volpe National a. Describe the applicant’s technical, Union local 1258.) Since DOL makes its Transportation Systems Center, Kendall legal, and financial capacity to referral to the national union’s Square 55 Broadway, Suite 920, implement the proposed projects. headquarters, there is no need to Cambridge, MA 02142–1093, (617) 494– b. Document matching funds, provide a means of contacting the local 2055 including amount and source. organization. Region II—New York, New Jersey, Virgin c. Include OMB Standard Form 424, Islands b. For each independent labor ‘‘Federal Assistance,’’ which is a multi- organization (i.e., a union that is not Letitia Thompson, FTA Regional purpose form which must be completed affiliated with a national or Administrator, 26 Federal Plaza, Suite in its entirety. The forms are available 2940, New York, NY 10278–0194, (212) international organization) the local from the FTA regional offices. 264–8162 information will be necessary (name of 3. Project Information organization, address, contact person, Region III—Pennsylvania, Maryland, Virginia, West Virginia, Delaware, Provide a summary of project phone, fax numbers). Washington, DC activities for which you are requesting c. Where a labor organization Susan Schruth, FTA Regional Administrator, funds. The summary should include: represents transit employees in the 1760 Market Street, Suite 500, a. Description of the components service area of the project, DOL must Philadelphia, PA 19103–4124, (215) 656– included in request for funds, i.e., lifts, refer the proposed protective 7100 tie-downs, moveable seats, etc. arrangements to each union and to each Region IV—Georgia, North Carolina, South b. Each project’s time line, including recipient. For this reason, please Carolina, Florida, Mississippi, Tennessee, significant milestones such as date of provide DOL with a contact person, Kentucky, Alabama, Puerto Rico contract for purchase of vehicle(s), and address, telephone number and fax Jerry Franklin, FTA Regional Administrator, actual or expected delivery date of number for your company and 61 Forsyth Street, S.W., Suite 17T50, vehicle(s). associated union information. Atlanta, GA 30303, (404) 562–3500 c. Project budget (See Appendix B). III. Submission of Applications and Region V—llinois, Indiana, Ohio, Wisconsin, 4. Project Narrative Minnesota, Michigan Grant Review Process Provide the information that Joel Ettinger, FTA Regional Administrator, addresses the criteria set forth in this Applications are to be submitted to 200 West Adams Street, Suite 2410 notice at Section G, ‘‘Grants Criteria’’. the appropriate FTA Regional Office by Chicago, IL 60606–5232, (312) 353–2789 Grants will be awarded competitively the close of business on April 27, 2001. Region VI—Texas, New Mexico, Louisiana, based upon that criteria. Please also FTA will screen all applications to Arkansas, Oklahoma provide the following information, determine whether all required Robert Patrick, FTA Regional Administrator, which may also be used for funding eligibility elements, as described in 819 Taylor Street, Room 8A36, Ft. Worth, decisions: Section 2 of the application, are present. TX 76102 (817) 978–0550 a. Fleet Information. Provide An FTA evaluation team will evaluate Region VII—Iowa, Nebraska, Kansas, information on the number of over-the- each application according to the Missouri road buses in your fleet, how many of criteria described in this announcement. Mokhtee Ahmad, FTA Regional those vehicles are accessible, and A. Notification Administrator, 901 Locust Street, Suite whether the vehicles for which you are 404, Kansas City, MO 64106, (816) 329– seeking funds will be used to replace FTA expects to notify all applicants, 3920 vehicles in your current fleet or to both those selected for funding and Region VIII—Colorado, North Dakota, South expand your fleet. those not selected, in July 2001. Grants Dakota, Montana, Wyoming, Utah b. Service Information. If funds are are expected to be made by September being sought for intercity fixed-route Lee Waddleton, FTA Regional Administrator, 30, 2001, the end of Federal fiscal year Columbine Place, 216 16th Street, Suite service, please describe how the service 2001. FTA is committed to obligating 650, Denver, CO 80202–5120, (303) 844– meets the definition of intercity fixed 3242 route service, including how the service FY 2001 OTRB Accessibility program makes meaningful connections with funds expeditiously. Therefore, FTA Region IX—California, Arizona, Nevada, scheduled intercity bus service to more urges applicants to develop and submit Hawaii, American Samoa, Guam distant points. If you provide both with their applications complete Leslie Rogers, FTA Regional Administrator, intercity fixed-route service and another documentation necessary to meet the 201 Mission Street, Suite 2210, San type of service, such as commuter, applicable FTA Section 5311 Francisco, CA 94105–1831, (415) 744–3133 charter or tour service, please provide requirements. Region X—Washington, Oregon, Idaho, an estimate of the proportion of your Alaska service that is intercity fixed-route Helen Knoll, FTA Regional Administrator, service. Describe your service area. Jackson Federal Building, 915 Second VerDate 11 Avenue, Suite 3142, Seattle, WA 98174– APPENDIX B—SAMPLE OTRB 1002, (206) 220–7954 ACCESSIBILITY PROGRAM PROJECT BUDGET [Grantee: Hillsdale Intercity Services; Project: OR–38–0001] Federal Eligible share project cost Scope—111–01:. Bus Rolling Stock ...... Activity: 11.42.43 Incremental cost of lift, securement devices and labor quantity—1 ...... $20,700 $23,000 Activity: 11.44.33 Retrofit vehicle with lift quantity—1 39,600 44,000 Scope—117–00: Bus—Other ...... Activity: 11.7D.01 Training ...... 18,000 20,000 Eligible project cost ...... 87,000 Federal share (10 percent) ...... 78,300 Applicant share (90 percent) ...... 8,700 APPENDIX C—CERTIFICATIONS AND behalf of the Applicant binding the with commission of any of the offenses listed ASSURANCES Applicant, and in subparagraph (1)(b) of this certification; (3) Execute grant agreements and and List of Certifications and Assurances for cooperative agreements with FTA on behalf (d) Have not within a three-year period Federal Transit Administration Over-the- of the Applicant. preceding this certification had one or more Road-Bus Accessibility Grants B. Standard Assurances public transactions (Federal, state, or local) terminated for cause or default. This list is a comprehensive compilation of The Applicant assures that it will comply (2) The Applicant also certifies that, if it the certifications and assurances required by with all applicable Federal statutes, later becomes aware of any information Federal law for the OTRB Accessibility regulations, executive orders, FTA circulars, contradicting the statements of paragraph (1) program. At the end of this list is a single and other Federal administrative above, it will promptly provide that Signature Page on which the applicant and requirements in carrying out any project its attorney certifies compliance with all supported by the FTA grant. The Applicant information to FTA. certifications and assurances applicable to acknowledges that it is under a continuing (3) If the Applicant (Primary Participant) is the OTRB Accessibility program. obligation to comply with the terms and unable to certify to all statements in All applicants are advised to read the conditions of the grant agreement issued for paragraphs (1) and (2) above, it shall indicate entire list of Certifications and Assurances to its project with FTA. The Applicant so in its signature page and provide a written be confident of their responsibilities and understands that Federal laws, regulations, explanation to FTA. commitments. The applicant may signify policies, and administrative practices might D. Drug-Free Workplace Agreement compliance with all categories by placing a be modified from time to time and affect the As required by U.S. DOT regulations, single ‘‘X’’ in the appropriate space at the top implementation of the project. The Applicant of the signature selection page. ‘‘Drug-Free Workplace Requirements agrees that the most recent Federal (Grants),’’ 49 CFR part 29, Subpart F, as requirements will apply to the project, unless References modified by 41 U.S.C. 702, the Applicant FTA issues a written determination The Transportation Equity Act for the 21st agrees that it will provide a drug-free otherwise. Century, Pub. L. 105–178, June 9, 1998, as workplace by: amended, 49 U.S.C. chapter 53, Title 23, C. Debarment, Suspension, and Other (1) Publishing a statement notifying its U.S.C., U.S. DOT and FTA regulations at 49 Responsibility Matters for Primary Covered employees that the unlawful manufacture, CFR, and FTA Circulars. Transactions distribution, dispensing, possession, or use of As required by U.S. DOT regulations on a controlled substance is prohibited in its Over-the-Road Bus Accessibility Program workplace and specifying the actions that Certifications and Assurances Government-wide Debarment and Suspension (Nonprocurement) at 49 CFR will be taken against its employees for 1. Certifications and Assurances Required of 29.510: violation of that prohibition; Each Applicant (1) The Applicant (Primary Participant) (2) Establishing an ongoing drug-free Each Applicant for Federal assistance certifies, to the best of its knowledge and awareness program to inform its employees awarded by FTA must provide all belief, that it and its principals: about: certifications and assurances in this category (a) Are not presently debarred, suspended, (a) The dangers of drug abuse in the I. Consequently, FTA may not award any proposed for debarment, declared ineligible, workplace, Federal assistance until the Applicant or voluntarily excluded from covered (b) Its policy of maintaining a drug-free provides assurance of compliance by transactions by any Federal department or workplace, selecting category ‘‘I’’ Signature Page at the agency; (c) Any available drug counseling, end of this document. (b) Have not, within a three (3) year period rehabilitation, and employee assistance preceding this certification, been convicted programs, and A. Authority of Applicant and Its of or had a civil judgment rendered against (d) The penalties that may be imposed Representative them for commission of fraud or a criminal upon its employees for drug abuse violations The authorized representative of the offense in connection with obtaining, occurring in the workplace; Applicant and legal counsel who sign these attempting to obtain, or performing a public (3) Making it a requirement that each of its certifications, assurances, and agreements (Federal, state, or local) transaction or employees to be engaged in the performance affirm that both the Applicant and its contract under a public transaction, violation of the grant be given a copy of the statement authorized representative have adequate of Federal or state antitrust statutes, or required by paragraph (1) above; authority under state and local law and the commission of embezzlement, theft, forgery, (4) Notifying each of its employees in the by-laws or internal rules of the Applicant bribery, falsification or destruction of statement required by paragraph (1) that, as organization to: records, making false statements, or receiving a condition of employment financed with (1) Execute and file the application for stolen property; Federal assistance provided by the grant, the Federal assistance on behalf of the Applicant, (c) Are not presently indicted for or employee will be required to: (2) Execute and file the required otherwise criminally or civilly charged by a (a) Abide by the terms of the statement, certifications, assurances, and agreements on governmental entity (Federal, state, or local) and VerDate 11 (b) Notify the employer (Applicant) in benefits of, or otherwise be subjected to directives issued by other Federal writing of any conviction for a violation of discrimination in any program or activity departments or agencies. a criminal drug statute occurring in the (particularly in the level and quality of 1. Certifications Prescribed by the Office of transportation services and transportation- workplace no later than five (5) calendar days Management and Budget (SF–424B and SF– related benefits) for which the Applicant after that conviction; 424D) (5) Notifying FTA in writing, within ten receives Federal assistance awarded by the (10) calendar days after receiving notice U.S. DOT or FTA as follows: The Applicant certifies that it: required by paragraph (4)(b) above from an (1) The Applicant assures that each project (1) Has the legal authority to apply for employee or otherwise receiving actual will be conducted, property acquisitions will Federal assistance and the institutional, notice of that conviction. The Applicant, as be undertaken, and project facilities will be managerial, and financial capability employer of any convicted employee, must operated in accordance with all applicable (including funds sufficient to pay the non- provide notice, including position title, to requirements of 49 U.S.C. 5332 and 49 CFR Federal share of project cost) to ensure every project officer or other designee on part 21, and understands that this assurance proper planning, management, and whose project activity the convicted extends to its entire facility and to facilities completion of the project described in its employee was working. Notice shall include operated in connection with the project. application. the identification number(s) of each affected (2) The Applicant assures that it will take (2) Will give FTA, the Comptroller General grant; appropriate action to ensure that any of the United States and, if appropriate, the (6) Taking one of the following actions transferee receiving property financed with state, through any authorized representative, within thirty (30) calendar days of receiving Federal assistance derived from FTA will access to and the right to examine all records, notice under paragraph (4)(b) of this comply with the applicable requirements of books, papers, or documents related to the agreement with respect to any employee who 49 U.S.C. 5332 and 49 CFR part 21. award; and will establish a proper accounting is so convicted: (3) The Applicant assures that it will system in accordance with generally (a) Taking appropriate personnel action promptly take the necessary actions to accepted accounting standards or agency against that employee, up to and including effectuate this assurance, including notifying directives. the public that complaints of discrimination termination, consistent with the (3) Will establish safeguard to prohibit in the provision of transportation-related requirements of the Rehabilitation Act of employees from using their positions for a 1973, as amended, or services or benefits may be filed with U.S. purpose that constitutes or presents the (b) Requiring that employee to participate DOT or FTA. Upon request by U.S. DOT or appearance of personal or organizational satisfactorily in a drug abuse assistance or FTA, the Applicant assures that it will conflict of interest or personal gain. rehabilitation program approved for such submit the required information pertaining to purposes by a Federal, state, or local health, its compliance with these requirements. (4) Will initiate and complete the work law enforcement, or other appropriate (4) The Applicant assures that it will make within the applicable project time periods agency; and any changes in its 49 U.S.C. 5332 and Title following receipt of FTA approval. (7) Making a good faith effort to continue VI implementing procedures as U.S. DOT or (5) Will comply with all statutes relating to to maintain a drug-free workplace through FTA may request. nondiscrimination including, but not limited implementation of paragraphs (1), (2), (3), (4), (5) As required by 49 CFR 21.7(a)(2), the to: (5), and (6) of this agreement. The Applicant Applicant will include in each third party (a) Title VI of the Civil Rights Act, 42 agrees to maintain a list identifying its contract or subagreement provisions to U.S.C. 2000d, which prohibits discrimination headquarters location and each workplace it invoke the requirements of 49 U.S.C. 5332 on the basis of race, color, or national origin; maintains in which project activities and 49 CFR part 21, and include provisions (b) Title IX of the Education Amendments supported by FTA are conducted, and make to invoke those requirements in deeds and of 1972, as amended, 20 U.S.C. 1681, 1683, that list readily accessible to FTA. instruments recording the transfer of real and 1685 through 1687, which prohibits discrimination on the basis of sex; E. Intergovernmental Review Assurance property, structures, improvements. (c) Section 504 of the Rehabilitation Act of The Applicant assures that each G. Assurance of Nondiscrimination on the Basis of Disability 1973, as amended, 29 U.S.C. 794, which application for Federal assistance submitted prohibits discrimination on the basis of to FTA has been or will be submitted, as As required by U.S. DOT regulations, handicaps; required by each state, for intergovernmental ‘‘Nondiscrimination on the Basis of Handicap (d) The Age Discrimination Act of 1975, as review to the appropriate state and local in Programs and Activities Receiving or amended, 42 U.S.C. 6101 through 6107, agencies. Specifically, the Applicant assures Benefiting from Federal Financial which prohibit discrimination on the basis of that it has fulfilled or will fulfill the Assistance,’’ at 49 CFR part 27, implementing age; the Rehabilitation Act of 1973, as amended, obligations imposed on FTA by U.S. DOT (e) The Drug Abuse Office and Treatment and the Americans with Disabilities Act of regulations, ‘‘Intergovernmental Review of Act of 1972, Pub. L. 92–255, March 21, 1972, 1990, as amended, the Applicant assures Department of Transportation Programs and and amendments thereto, relating to that, as a condition to the approval or Activities,’’ 49 CFR part 17. nondiscrimination on the basis of drug abuse; F. Nondiscrimination Assurance extension of any Federal assistance awarded by FTA to construct any facility, obtain any (f) The Comprehensive Alcohol Abuse and As required by 49 U.S.C. 5332 (which rolling stock or other equipment, undertake Alcoholism Prevention Act of 1970, Pub. L. prohibits discrimination on the basis of race, studies, conduct research, or to participate in 91–616, Dec. 31, 1970, and amendments color, creed, national origin, sex, or age, and or obtain any benefit from any program thereto, relating to nondiscrimination on the prohibits discrimination in employment or administered by FTA, no otherwise qualified basis of alcohol abuse or alcoholism; business opportunity), Title VI of the Civil person with a disability shall be, solely by (g) The Public Health Service Act of 1912, Rights Act of 1964, as amended, 42 U.S.C. reason of that disability, excluded from as amended, 42 U.S.C. 290dd–3 and 290ee– 2000d, and U.S. DOT regulations, participation in, denied the benefits of, or 3, related to confidentiality of alcohol and ‘‘Nondiscrimination in Federally-Assisted otherwise subjected to discrimination in any drug abuse patient records; Programs of the Department of program or activity receiving or benefiting (h) Title VIII of the Civil Rights Act, 42 Transportation—Effectuation of Title VI of from Federal assistance administered by the U.S.C. 3601 et seq., relating to the Civil Rights Act,’’ 49 CFR part 21 at 21.7, FTA or any entity within U.S. DOT. The nondiscrimination in the sale, rental, or the Applicant assures that it will comply Applicant assures that project financing of housing; with all requirements of 49 CFR part 21; FTA implementation and operations so assisted (i) Any other nondiscrimination provisions Circular 4702.1, ‘‘Title VI Program will comply with all applicable requirements in the specific statutes under which Federal Guidelines for Federal Transit of U.S. DOT regulations implementing the assistance for the project may be provided Administration Recipients’’, and other Rehabilitation Act of 1973, as amended, 29 including, but not limited to section 1101(b) applicable directives, so that no person in the U.S.C. 794, and the Americans with of the Transportation Equity Act for the 21st United States, on the basis of race, color, Disabilities Act of 1990, as amended, 42 Century, 23 U.S.C. 101 note, which provides national origin, creed, sex, or age will be U.S.C. 12101 et seq. at 49 CFR parts 27, 37, for participation of disadvantaged business excluded from participation in, be denied the and 38, and any applicable regulations and enterprises in FTA programs; and VerDate 11 (j) The requirements of any other subagreements financed with FTA assistance Water Act of 1974, as amended, 42 U.S.C. nondiscrimination statute(s) that may apply and execute, furnish, and be bound by such 300h et seq.; to the project. additional documents as FTA may determine (h) Protection of endangered species under (6) Will comply, or has complied, with the necessary to effectuate or implement the the Endangered Species Act of 1973, as requirements of Titles II and III of the assurances provided herein; and amended, Endangered Species Act of 1973, Uniform Relocation Assistance and Real (i) The Applicant agrees to make these as amended, 16 U.S.C. 1531 et seq.; and Property Acquisition Policies Act of 1970, as assurances part of or incorporate them by (i) Environmental protections for Federal amended, (Uniform Relocation Act) 42 U.S.C. reference into any third party contract or transit programs, including, but not limited 4601 et seq., which provide for fair and subagreement, or any amendments thereto, to protections for a park, recreation area, or equitable treatment of persons displaced or relating to any project financed by FTA wildlife or waterfowl refuge of national, state, whose property is acquired as a result of involving relocation or land acquisition and or local significance or any land from a Federal of federally-assisted programs. These provide in any affected document that these historic site of national, state, or local requirements apply to all interests in real relocation and land acquisition provisions significance used in a transit project as property acquired for project purposes shall supersede any conflicting provisions. required by 49 U.S.C. 303. regardless of Federal participation in (7) To the extent applicable, will comply (11) Will comply with the Wild and Scenic purchases. As required by U.S. DOT with provisions of the Hatch Act, 5 U.S.C. Rivers Act of 1968, as amended, 16 U.S.C. regulations, ‘‘Uniform Relocation Assistance 1501 through 1508, and 7324 through 7326, 1271 et seq. relating to protecting and Real Property Acquisition for Federal which limit the political activities of state components of the national wild and scenic and Federally Assisted Programs,’’ at 49 CFR and local agencies and their officers and rivers systems. 24.4, and sections 210 and 305 of the employees whose principal employment (12) Will assist FTA in assuring Uniform Relocation Act, 42 U.S.C. 4630 and activities are financed in whole or part with compliance with section 106 of the National 4655, the Applicant assures that it has the Federal funds including a Federal loan, grant, Historic Preservation Act of 1966, as requisite authority under applicable state and or cooperative agreement, but pursuant to 23 amended, 16 U.S.C. 470f, Executive Order local law and will comply or has complied U.S.C. 142(g), does not apply to a No. 11593 (identification and protection of with the requirements of the Uniform nonsupervisory employee of a transit system historic properties), 16 U.S.C. 470 note, and Relocation Act, 42 U.S.C. 4601 et seq., and (or of any other agency or entity performing the Archaeological and Historic Preservation U.S. DOT regulations, ‘‘Uniform Relocation related functions) receiving FTA assistance to Act of 1974, as amended, 16 U.S.C. 469a–1 Assistance and Real Property Acquisition for whom the Hatch Act does not otherwise et seq. Federal and Federally Assisted Programs,’’ 49 apply. (13) Will comply with the Lead-Based CFR part 24 including, but not limited to the (8) To the extent applicable, will comply Paint Poisoning Prevention Act, 42 U.S.C. following: with the Davis-Bacon Act, as amended, 40 4801, which prohibits the use of lead-based (a) The Applicant will adequately inform U.S.C. 276a through 276a(7), the Copeland paint in construction or rehabilitation of each affected person of the benefits, policies, Act, as amended, 18 U.S.C. 874 and 40 U.S.C. residence structures. and procedures provided for in 49 CFR part 276c, and the Contract Work Hours and (14) Will not dispose of, modify the use of, 24; Safety Standards Act, as amended, 40 U.S.C. or change the terms of the real property title, (b) The Applicant will provide fair and 327 through 333, regarding labor standards or other interest in the site and facilities on reasonable relocation payments and assistance required by 42 U.S.C. 4622, 4623, for federally-assisted subagreements. which a construction project supported with and 4624; 49 CFR part 24; and any applicable (9) To the extent applicable, will comply FTA assistance takes place without FTA procedures, to or for families, with flood insurance purchase requirements permission and instructions from the individuals, partnerships, corporations or of section 102(a) of the Flood Disaster awarding agency. associations displaced as a result of any Protection Act of 1973, as amended, 42 (15) Will record the Federal interest in the project financed with FTA assistance; U.S.C. 4012a(a), requiring recipients in a title of real property in accordance with FTA (c) The Applicant will provide relocation special flood hazard area to participate in the directives and will include a covenant in the assistance programs offering the services program and purchase flood insurance if the title of real property acquired in whole or in described in 42 U.S.C. 4625 to such total cost of insurable construction and part with Federal assistance funds to assure displaced families, individuals, partnerships, acquisition is $10,000 or more. nondiscrimination during the useful life of corporations, or associations in the manner (10) Will comply with environmental the project. provided in 49 CFR part 24 and FTA standards that may be prescribed to (16) Will comply with FTA requirements procedures; implement the following Federal laws and concerning the drafting, review, and approval (d) Within a reasonable time before executive orders: of construction plans and specifications of displacement, the Applicant will make (a) Institution of environmental quality any construction project supported with FTA available comparable replacement dwellings control measures under the National assistance. As required by U.S. DOT to displaced families and individuals as Environmental Policy Act of 1969, as regulations, ‘‘Seismic Safety,’’ 49 CFR required by 42 U.S.C. 4625(c)(3); amended, 42 U.S.C. 4321 et seq. and 41.117(d), before accepting delivery of any (e) The Applicant will carry out the Executive Order No. 11514, as amended, 42 building financed with FTA assistance, it relocation process in such a manner as to U.S.C. 4321 note; will obtain a certificate of compliance with provide displaced persons with uniform and (b) Notification of violating facilities the seismic design and construction consistent services, and will make available pursuant to Executive Order No. 11738, 42 requirements of 49 CFR part 41. replacement housing in the same range of U.S.C. 7606 note; (17) Will provide and maintain competent choices with respect to such housing to all (c) Protection of wetlands pursuant to and adequate engineering supervision at the displaced persons regardless of race, color, Executive Order No. 11990, 42 U.S.C. 4321 construction site of any project supported religion, or national origin; and note; with FTA assistance to ensure that the (f) In acquiring real property, the Applicant (d) Evaluation of flood hazards in complete work conforms with the approved will be guided to the greatest extent floodplains in accordance with Executive plans and specifications and will furnish practicable under state law, by the real Order 11988, 42 U.S.C. 4321 note; progress reports and such other information property acquisition policies of 42 U.S.C. (e) Assurance of project consistency with as may be required by FTA or the State. 4651 and 4652; the approved State management program (18) Will comply with the National (g) The Applicant will pay or reimburse developed pursuant to the requirements of Research Act, Pub. L. 93–348, July 12, 1974, property owners for necessary expenses as the Coastal Zone Management Act of 1972, as as amended, regarding the protection of specified in 42 U.S.C. 4653 and 4654, with amended, 16 U.S.C. 1451 et seq. human subjects involved in research, the understanding that FTA will participate (f) Conformity of Federal actions to State development, and related activities in the Applicant’s eligible costs of providing (Clean Air) Implementation Plans under supported by Federal assistance and DOT payments for those expenses as required by section 176(c) of the Clean Air Act of 1955, regulation, ‘‘Protection of Human Subjects,’’ 42 U.S.C. 4631; as amended, 42 U.S.C. 7401 et seq.; 49 CFR part 11. (h) The Applicant will execute such (g) Protection of underground sources of (19) Will comply with the Laboratory amendments to third party contracts and drinking water under the Safe Drinking Animal Welfare Act of 1966, as amended, 7 VerDate 11 U.S.C. 2131 et seq. pertaining to the care, B. The Applicant understands that this U.S.C. 1001 apply to any certification, handling, and treatment of warm blooded certification is a material representation of assurance, or submission made in connection animals held for research, teaching, or other fact upon which reliance is placed and that with any other program administered by activities supported by FTA assistance. submission of this certification is a FTA. (20) Will have performed the financial and prerequisite for providing Federal assistance In signing this document, I declare under compliance audits required by the Single for a transaction covered by 31 U.S.C. 1352. penalties of perjury that the foregoing Audit Act Amendments of 1996, 31 U.S.C. The Applicant also understands that any certifications and assurances, and any other 7501 et seq. and OMB Circular No. A–133, person who fails to file a required statements made by me on behalf of the ‘‘Audits of States, Local Governments, and certification shall be subject to a civil penalty Application are true and correct. Non-Profit Organizations and Department of of not less than $10,000 and not more than Signature llllllll $100,000 for each such failure. Transportation provisions of OMB A–133 Date llllllll Compliance Supplement, March 2000.’’ Over-the-Road Bus Accessibility Program Name llllllll (21) Will comply with all applicable Certifications and Assurances for FTA Authorized Representative of Applicant requirements of all other Federal laws, Assistance executive orders, regulations, and policies Affirmation of Applicant’s Attorney Name of applicant: llllllll governing the project. llllllll The Applicant agrees to comply with For 2. Lobbying Certification for an Application applicable requirements of Categories I–III. (Name of Applicant) Exceeding $100,000 (The Applicant may make this selection in As the undersigned legal counsel for the An Applicant that submits, or intends to lieu of individual selections below.) above name applicant, I hereby affirm to the submit this fiscal year, an application for or Applicant that it has authority under state Federal assistance exceeding $100,000 must The applicant agrees to comply with the and local law to make and comply with the provide the following certification. applicable requirements of the following certifications and assurances as indicated on Consequently, FTA may not provide Federal categories it has selected: the foregoing pages. I further affirm that, in assistance for an application exceeding I. Certifications and Assurances Required of my opinion, the certifications and assurances $100,000 until the Applicant provides this Each Applicant llll have been legally made and constitute legal certification by selecting category ‘‘II’’ on the II. Lobbying Certification llll and binding obligations on the applicant. Signature Page at the end of this document. I further affirm to the Applicant that, to the A. As required by U.S. DOT regulations, Over-the-Road Bus Accessibility best of my knowledge, there is no legislation ‘‘New Restrictions on Lobbying,’’ at 49 CFR Certifications and Assurances or litigation pending or imminent that might 20.110, the Applicant’s authorized Name of Applicant: adversely affect the validity of these representative certifies to the best of his or lllllllllllllllllllll certifications and assurances, or of the her knowledge and belief that for each Name and relationship of Authorized performance of the project. Furthermore, if I application for a Federal assistance Representative: lllll become aware of circumstances that change exceeding $100,000: BY SIGNING BELOW I, lllll (name), the accuracy of the foregoing statements, I (1) No Federal appropriated funds have on behalf of the Applicant, declare that the will notify the applicant promptly, which been or will be paid, by or on behalf of the Applicant has duly authorized me to make may so inform FTA. Applicant, to any person for influencing or these certifications and assurances and bind Signature llllllll attempting to influence an officer or the Applicant’s compliance. Thus, the Date llllllll employee of any agency, a Member of Applicant agrees to comply with all Federal Name llllllll Congress, an officer or employee of Congress, statutes, regulations, executive orders, and or an employee of a Member of Congress administrative guidance required for each Applicant’s Attorney pertaining to the award of any Federal application it makes to the Federal Transit Each Applicant for FTA financial assistance, or the extension, continuation, Administration (FTA). assistance and each FTA grantee with an renewal, amendment, or modification of any FTA intends that the certifications and active capital project must provide an Federal assistance agreement; and assurances the Applicant selects on the other attorney’s affirmation of the Applicant’s legal (2) If any funds other than Federal side of this document should apply, as capacity. appropriated funds have been or will be paid required, to each project for which the to any person for influencing or attempting applicant seeks FTA assistance. APPENDIX D—GRANT APPLICATION to influence an officer or employee of any The applicant affirms the truthfulness and CHECKLIST agency, a Member of Congress, an officer or accuracy of the certifications and assurances employee of Congress, or an employee of a it has made in the statements submitted 1. Transmittal letter Member of Congress in connection with any herein with this document and any other 2. Project Eligibility application to FTA for Federal assistance, the submission made to FTA, and acknowledges 3. Project Information Applicant assures that it will complete and that the provisions of the Program Fraud 4. Project Narrative submit Standard Form-LLL, ‘‘Disclosure Civil Remedies Act of 1986, 31 U.S.C. 3801 5. Fleet Information Form to Report Lobbying,’’ including the et seq., as implemented by U.S. DOT 6. Service Information information required by the form’s regulations, ‘‘Program Fraud Civil 7. Labor Information instructions, which may be amended to omit Remedies,’’ 49 CFR part 31 apply to any such information as permitted by 31 U.S.C. certification, assurance or submission made [FR Doc. 01–2273 Filed 1–25–01; 8:45 am] 1352. to FTA. The criminal fraud provisions of 18 BILLING CODE 4910–57–P VerDate 11 Part V National Skill Standards Board Partnership Organization: Manufacturing Skill Standards Council (MSSC): Solicitation of Comments; Notice VerDate 11 NATIONAL SKILL STANDARDS 9000, Washington DC 20005, 202–254– communication among and determine BOARD 8628, http://www.nssb.org. portability of skills for employers, job SUPPLEMENTARY INFORMATION: seekers, employees, human resource Partnership Organization: professionals, union representatives, Manufacturing Skill Standards Council Table of Contents educators, and training providers across (MSSC): Solicitation of Comments I. Contact Information for Submitting all industries in the U.S. economy. Comments AGENCY: National Skill Standards Board. II. Background III. Authorizing Legislation ACTION: Solicitation of comments. III. Authorizing Legislation IV. National Skill Standards Board (NSSB) Public Law 103–227, Title V, National SUMMARY: The National Skill Standards V. Manufacturing Skill Standards Council Skill Standards Act of 1994. Board (NSSB) is building a voluntary (MSSC) IV. National Skill Standards Board national system of skill standards, VI. Mission of the Manufacturing Skill (NSSB) assessment, and certification that will Standards Council enhance the ability of the U.S. to VII. Background for Proposed Standards The National Skill Standards Act of compete effectively in a global Release 1994 created ‘‘a National Skill economy. The Manufacturing Skill VIII. Proposed Standards Standards Board to serve as a catalyst in IX. Resolution of Comments Standards Council (MSSC) is the first of stimulating the development and four industry-based Voluntary I. Contact Information for Submitting adoption of a voluntary national system Partnerships that have been recognized Comments of skill standards and of assessment and by the NSSB to develop proposed skill The full text of the proposed MSSC certification of attainment of skill standards. As NSSB requires of Skill Standards, A Blueprint for standards.’’ Industry coalitions called Voluntary Partnerships, MSSC seeks Workforce Excellence, may be obtained Voluntary Partnerships are developing public comment to improve the product, by submitting a written request to the the skill standards, assessment and receive input on potential uses of the following mailing address: Attention, certification systems within fifteen skill standards in various organizations, Standards Release, MSSC, 1201 New NSSB-defined industry sectors. and to assist in the design of associated York Ave., NW, Suite 725, Washington, V. Manufacturing Skill Standards assessment and certification systems DC 20005–3917, or by faxed request to Council (MSSC) related to the skill standards’ full Standards Release at 202–289–7618. implementation and continuous The full text of the proposed MSSC Skill In March 1998, the National Skill improvement. Comments must be Standards is also available on the MSSC Standards Board formally recognized submitted in writing in order to be website at http://www.msscusa.org/. the Manufacturing Skill Standards considered, and details on submitting Proposed skill standards may be viewed Council as the first Voluntary comments via e-mail, fax, or regular on the web or downloaded (PDF files). Partnership established to develop a mail are provided in the Addresses Printed copies of the proposed skill system of voluntary skill standards for section. Due to the complexity and standards may also be obtained from the the manufacturing industry. This system length of the proposed skill standards, downloadable PDF at http:// is industry-led with full partnership and only a summary is published in this www.msscusa.org/validation/ full and balanced participation of Notice. To obtain the full text of the Standards/Feedback.pdf. representatives of employees, unions, proposed MSSC Skill Standards, see the education, civil rights organizations, Supplementary Information section. II. Background and community stakeholders. The DATES: The Manufacturing Skill Under a Cooperative Agreement with Manufacturing Skill Standards Council Standards Council will accept written the National Skill Standards Board (MSSC) is staffed and managed by the comments on the proposed (NSSB), the Manufacturing Skill National Coalition for Advanced Manufacturing Industry Skill Standards Standards Council (MSSC) has Manufacturing (NACFAM), http:// on or before March 27, 2001. developed voluntary industry-wide www.nacfam.org, and the AFL–CIO ADDRESSES: Please send comments via standards covering six (6) broad Working for America Institute, http:// regular mail to: MSSC, 1201 New York concentrations of work within 14 workingforamerica.org. Ave., NW., Suite 725, Washington, DC sectors of manufacturing, and has VI. Mission of the Manufacturing Skill 20005–3917. To submit comments via determined and proposes core skill Standards Council fax, transmit to Standards Release at standards common to each of the six 202–289–7618. To submit comments via concentrations. The concentrations are: The mission of the MSSC is to the Web, go to http://www.msscusa. (1) Production; (2) Health, Safety and develop a nationwide system of org/. Click on the icon titled ‘‘View and Environmental Assurance; (3) Logistics workforce skill standards for workers in Comment On the Skill Standards Here’’ and Inventory Control; (4) Maintenance, 14 sectors of manufacturing. This FOR FURTHER INFORMATION CONTACT: For Installation and Repair; (5) Production nationwide Manufacturing Skill further information regarding MSSC’s Process Development; and, (6) Quality Standards System seeks to: development of skill standards, Assurance. The National Skill Standards • Enhance productivity and global assessment, and certification for the Act of 1994 defines a skill standard as economic competitiveness of U.S.-based manufacturing industry, contact the one that specifies the level of knowledge manufacturing companies; Manufacturing Skill Standards Council and skills required to successfully • Raise the standard of living and (MSSC) at 1201 New York Avenue, perform work-related functions within economic security of American workers Suite 725, Washington DC 20005–3917 an occupational cluster. The MSSC by improving their access to high-skill, (202–216–2740), http:// proposed standards describe the work high-wage employment and career www.msscusa.org/. For further requirements and worker skills opportunities for those currently in, information on the Voluntary National necessary for a high performance entering, or reentering the workforce; System of Industry Skill Standards, manufacturing environment. These • Encourage the use of world-class contact the National Skill Standards standards incorporate a common academic, occupational and Board (NSSB): 1441 L Street, NW., Suite language that will enhance employability standards to guide VerDate 11 continuous education and training for assessments and certification, as consideration all comments; will current and future workers. envisioned in the National Skill respond in writing to comments as Standards Act of 1994. VII. Background for Proposed appropriate; and, with agreement from Standards Release VIII. Proposed Standards the National Skill Standards Board, will make revisions as deemed appropriate. On November 14–15, 2000, the The MSSC Standards include At the end of the comment period the information on the work (i.e., critical Manufacturing Skill Standards Council MSSC will post a summary of comments work functions, key activities, and reviewed the completed research and on the MSSC Web site, http:// final data analyses on the proposed performance indicators) as well as the knowledge and skills (academic, www.msscusa.org/. A summary of the Manufacturing Skill Standards. The response to comments and a notice of MSSC Steering Committee approved the employability, and occupational/ technical) needed in the six broad revision will be posted at a later date. proposed skill standards in their The summary of responses may also be entirety and formally submitted them to concentrations of work in accessed at the NSSB website, http:// the National Skill Standards Board for manufacturing: • www.nssb.org, via hyperlink to the approval. The proposed MSSC Skill Production; • Health, Safety and Environmental Standards are the product of over two MSSC website. Assurance; Signed at Washington DC this 23rd day of years of intensive field research • Logistics and Inventory Control; involving over 700 companies, 3800 • Maintenance, Installation & Repair; January, 2001. workers, 300 subject matter experts and • Production Process Development; Edie West, 30 facilitating organizations. and, Executive Director, National Skill Standards Completion of these proposed standards • Quality Assurance. Board. for submission to the National Skill [FR Doc. 01–2405 Filed 1–25–01; 8:45 am] Standards Board marks the first major IX. Resolution of Comments BILLING CODE 4510–BF–P step towards developing a nationwide The Manufacturing Skill Standards system of voluntary skill standards, Council shall review and take into VerDate 11 Part VI Department of Health and Human Services Office of Child Support Enforcement 45 CFR Part 303 National Medical Support; Delay of Effective Date; Final Rule VerDate 11 DEPARTMENT OF HEALTH AND child-support enforcement agenceis use would have been impractical, as well as HUMAN SERVICES a standard form—entitled the National contrary to the public interest in the Medical Support Notice—to notify orderly promulgation and Office of Child Support Enforcement employers of the terms of a non- implementation of regulations. In custodial parent’s obligations regarding addition, allowing the rule to become 45 CFR Part 303 health insurance coverage under a child effective before the temporary support agreement. To the extent that 5 RIN 0970–AB97 suspension date could create confusion U.S.C. section 553 applies to this action, among State agencies, employees, and National Medical Support Notice; Delay it is exempt from notice and comment Plan administrators regarding the of Effective Date because it constitutes a rule of qualified status of National Medical procedure under 5 U.S.C. section Support Notices that may be issued by AGENCY: Office of Child Support 553(b)(A). Alternatively, the some states before and during the Enforcement, HHS. Department’s implementation of this suspension period. ACTION: Final rule; Delay of effective rule without opportunity for public DATES: The effective date of National date. comment, effective immediately upon publication today in the Federal Medical Support Notice, published in SUMMARY: In accordance with the Register, is based on the good cause the Federal Register on December 27 memorandum of January 20, 2001, from exceptions in 5 U.S.C. section 553(b)(B) (FR 65 82154) is delayed for 60 days, the Assistant to the President and Chief and 553(d)(3), in that seeking public from January 26, 2001 to a new effective of Staff, entitled ‘‘Regulatory Review comment is impracticable, unnecessary date of March 27, 2001. Plan,’’ published in the Federal Register and contrary to the public interest. The FOR FURTHER INFORMATION CONTACT: on January 24, 2001, this action temporary 60-day delay in effective date Elizabeth Matheson, Office of Child temporarily delays for 60 days the is necessary to give Department officials Support Enforcement Policy, (202) 410– effective date of the rule entitled the opportunity for further review and 9386. ‘‘National Medical Support Notice’’, consideration of new regulations, published in the Federal Register on consistent with the Assistant to the Dated: January 25, 2001. December 27, 2000 (65 FR 82154). That President’s memorandum of January 20, David Satcher, rule concerns a statutory obligation that 2001. Given the imminence of the Acting Secretary. the secretary of health and human effective date, seeking prior public [FR Doc. 01–2580 Filed 1–25–01; 1:25 pm] services require in regulation that state comment on this temporary delay BILLING CODE 4184–01–P VerDate 11 Part VII Department of Labor Pension and Welfare Benefits Administration 29 CFR Part 2590 National Medical Support; Delay of Effective Date; Final Rule VerDate 11 DEPARTMENT OF LABOR administrators of group health plans as implementation of regulations. In a qualified medical child support order addition, allowing the rule to become Pension and Welfare Benefits under section 609(a) of the Employee effective before the temporary Administration Retirement Income Security Act suspension could create confusion (ERISA). To the extent that 5 U.S.C. among State agencies, employers and 29 CFR Part 2590 section 553 applies to this action, it is plan administrators regarding the exempt from notice and comment qualified status of child support orders RIN 1210–AA72 because it constitutes a rule of issued before and during the suspension National Medical Support Notice: Delay procedure under 5 U.S.C. section period. of Effective Date 553(b)(A). Alternatively, the DATES: The effective date of the National Department’s implementation of this Medical Support Notice, published in AGENCY: Pension and Welfare Benefits rule without opportunity for public the Federal Register on December 27, Administration, Department of Labor. comment, effective immediately upon 2000, at 65 FR 82128, is delayed for 60 ACTION: Final rule; Delay of effective publication today in the Federal days, from January 26, 2001 to a new date. Register, is based on the good cause effective date of March 27, 2001. exceptions in 5 U.S.C. section 553(b)(B) FOR FURTHER INFORMATION CONTACT: SUMMARY: In accordance with the and 553(d)(3), in that seeking public memorandum of January 20, 2001, from comment is impracticable, unnecessary David Lurie or Susan Rees, Office of the Assistant to the President and Chief and contrary to the public interest. The Regulations and Interpretations, Pension of Staff, entitled ‘‘Regulatory Review temporary 60-day delay in effective date and Welfare Benefits Administration, Plan,’’ published in the Federal Register is necessary to give Department officials 200 Constitution Avenue, NW, Room N– on January 24, 2001, this action the opportunity for further review and 5669, Washington, DC 20010, (202) 219– temporarily delays for 60 days the consideration of new regulations, 8671 (this is not a toll-free number). effective date of the rule entitled consistent with the Assistant to the Signed at Washington, DC, this January 25, National Medical Support Notice, President’s memorandum of January 20, 2001. published in the Federal Register on 2001. Given the imminence of the Alan D. Lebowitz, December 27, 2000, 65 FR 82128. That effective date, seeking prior public Deputy Assistant Secretary for Program rule promulgates a notice to be issued comment on this temporary delay Operations, Pension and Welfare Benefits by State Agencies as a means to enforce would have been impractical, as well as Administration, Department of Labor. health care coverage provisions in a contrary to the public interest in the [FR Doc. 01–2581 Filed 1–25–01; 1:43 pm] child support order and to be treated by orderly promulgation and BILLING CODE 4510–29–P VerDate 11 Reader Aids Federal Register Vol. 66, No. 18 Friday, January 26, 2001 CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JANUARY Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–523–5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since the revision date of each title. Laws 523–5227 3 CFR 7402...... 7855 7403...... 7861 Presidential Documents Executive Orders: Administrative Orders: Executive orders and proclamations 523–5227 9066 *See Proc. Presidential Determinations The United States Government Manual 523–5227 7395) ...... 7347 No. 2001–05 of 12543 (continued by December 15, Notice of January 4, Other Services 2000 ...... 223 2001) ...... 1251 No. 2001–06 of Electronic and on-line services (voice) 523–4534 12544 (continued by Privacy Act Compilation 523–3187 December 15, Notice of January 4, 2000 ...... 225 Public Laws Update Service (numbers, dates, etc.) 523–6641 2001) ...... 1251 No. 2001–07 of 523–5229 TTY for the deaf-and-hard-of-hearing 12640 (revoked by EO December 19, 13187) ...... 3857 2000 ...... 1013 ELECTRONIC RESEARCH 12947 (see Notice of No. 2001–08 of January 19, 2001)...... 7371 December 27, World Wide Web 13078 (amended by 2000 ...... 1561 Full text of the daily Federal Register, CFR and other EO 13187)...... 3857 No. 2001–09 of publications: 13088 (amended by January 3, 2001 ...... 2193 EO 13192)...... 7379 http://www.access.gpo.gov/nara Memorandums: 13099 (see Notice of Memorandum of March Federal Register information and research tools, including Public January 19, 2001)...... 7371 3, 2000 ...... 3851 Inspection List, indexes, and links to GPO Access: 13111 (amended by Notices: EO 13188)...... 5419 http://www.nara.gov/fedreg January 4, 2001...... 1251 13121 (see EO Notice of January 19, E-mail 13192) ...... 7379 2000 (see Notice of 13178 (amended by PENS (Public Law Electronic Notification Service) is an E-mail January 19, 2001)...... 7371 EO 13196)...... 7395 service for notification of recently enacted Public Laws. To Notice of January 19, 13184...... 697 subscribe, send E-mail to 2001 ...... 7371 13185...... 701 [email protected] 13186...... 3853 5 CFR with the text message: 13187...... 3857 330...... 6427 13188...... 5419 subscribe PUBLAWS-L your name 537...... 2790 13189...... 5421 731...... 7863 Use [email protected] only to subscribe or unsubscribe to 13190...... 5424 792...... 705 PENS. We cannot respond to specific inquiries. 13191...... 7271 2604...... 3439 13192...... 7379 Reference questions. Send questions and comments about the Proposed Rules: Federal Register system to: 13193...... 7387 575...... 5491 13194...... 7389 [email protected] 13195...... 7391 7 CFR The Federal Register staff cannot interpret specific documents or 13196...... 7395 54...... 1190 regulations. 13197...... 7853 215...... 2195 Proclamations: 225...... 2195 FEDERAL REGISTER PAGES AND DATE, JANUARY 3443 (see Proc. 226...... 2195 7392) ...... 7335 245...... 2195 1–226...... 2 7350 (see proc. 271...... 2795 227–704...... 3 7400) ...... 7373 272...... 4438 705–1012...... 4 7351 (see proc. 273...... 4438 1013–1252...... 5 7400) ...... 7373 278...... 2795 1253–1560...... 8 7388 (see proc. 301...... 6429 1561–1806...... 9 7400) ...... 7373 302...... 1015 1807–2192...... 10 7389...... 703 760...... 2800 2193–2794...... 11 7390...... 5417 761...... 7565 2795–3438...... 12 7391...... 7205 762...... 7565 7392...... 7335 3439–3852...... 16 770...... 1563 7393...... 7339 3853–4606...... 17 905...... 227 7394...... 7343 930...... 229, 232 4607–5420...... 18 7395...... 7347 944...... 227 5421–6426...... 19 7396...... 7351 989...... 705 6427–7372...... 22 7397...... 7354 1436...... 4607 7373–7564...... 23 7398...... 7359 1446...... 1807 7565–7702...... 24 7399...... 7364 1823...... 1563 7703–7862...... 25 7400...... 7373 1901...... 7565 7863–8076...... 26 7401...... 7375 1902...... 1563 VerDate 11-MAY-2000 17:05 Jan 25, 2001 Jkt 194001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\26JACU.LOC pfrm11 PsN: 26JACU ii Federal Register / Vol. 66, No. 18 / Friday, January 26, 2001 / Reader Aids 1910...... 1570 1780...... 709 14...... 1257, 6466 25...... 1040 1941...... 1570, 7565 Proposed Rules: 16...... 6466 53...... 2144 1943...... 7565 225...... 307 120...... 6138 54...... 1378, 1843 1945...... 7565 1501...... 307 178...... 6469 301 ...... 725, 2144, 2257, 2261, 1951...... 1563 201...... 7864 2817 1955...... 7565 13 CFR 207...... 5447 602 ...... 280, 2144, 2219, 2241, 1956...... 1563 108...... 7218 291...... 4076 2252, 4661 1965...... 7565 126...... 4643 314...... 1832 Proposed Rules: Proposed Rules: 510...... 7577 1.....66, 76, 315, 319, 747, 748, 300...... 6489 14 CFR 520...... 7579 1066, 1923, 2373, 2852, 301...... 3505 25...... 261 522...... 711 2854, 3888, 3903, 3916, 319...... 6489 39...... 1, 2, 5, 7, 263, 264, 265, 524...... 712, 7577 3920, 3924, 3925, 3928, 929...... 2838 267, 1031, 1253, 1255, 558...... 1832 3954, 4738, 4746, 4751, 930...... 1909 1574, 1827, 1829, 2212, 606...... 1834 5754 955...... 1915 3448, 3859, 3861, 4646, 640...... 1834 7...... 2856 1721...... 1604 4648, 4649, 4651, 4654, 807...... 5447 31...... 3925, 3956 4656, 4659, 6446, 6449, 1271...... 5447 53...... 2173 8 CFR 6451, 6453, 6454, 7568, 1306...... 2214 54 ...... 1421, 1435, 1437, 3928 3...... 6436 7575, 7576 Proposed Rules: 301 ...... 77, 749, 2173, 2373, 103...... 7863 71 ...... 1033, 1831, 2214, 2801, 1...... 6503 2854, 3959, 7867 208...... 7863 6456, 6457, 6458 14...... 1276 601...... 3954 210...... 7863 91...... 1002 16...... 3523 212 ...... 235, 1017, 3440, 6436, 93...... 1002 20...... 4688 27 CFR 7863 97...... 2802, 2803 192...... 4706 17...... 5469 235...... 7863 121...... 1002 312...... 4688 18...... 5469 240...... 6436 135...... 1002 592...... 4706 20...... 5472 241...... 7863 405...... 2176 601...... 4688 21...... 5472 244...... 7863 406...... 2176 807...... 3523 22...... 5472 245a...... 7863 Proposed Rules: 1271...... 1508 25...... 5477 Proposed Rules: 23...... 6493 30...... 5480 212...... 1053 39...57, 59, 61, 64, 1054, 1057, 22 CFR 1271, 1273, 1607, 1609, 41...... 1033 28 CFR 9 CFR 1612, 1917, 1919, 3382, Proposed Rules: Ch. VIII...... 1259 1...... 6492 3511, 3515, 3516, 3518, 41...... 1064 16...... 6470 2...... 236 3521, 6495, 6497, 6498, 25...... 6471 3...... 239 6500, 7433 23 CFR 331...... 2206 71 ...... 1921, 2850, 3886, 3887, 655...... 1446 29 CFR 381...... 1750, 2206 7435 940...... 1446 4...... 5328 441...... 1750 15 CFR 1904...... 5916 Proposed Rules: 24 CFR 1910...... 5318 335...... 6459 317...... 4970 5...... 6218 1926...... 5196 340...... 6459 381...... 4970 15...... 6964 1952...... 5916 740...... 5443, 6459 92...... 6218 1956...... 2265 742...... 5443 10 CFR 200...... 6218 2590...... 1378, 8076 748...... 5443, 6459 221...... 5912 4022...... 2822 5...... 708 902...... 3450 236...... 6218 4044...... 2822 34...... 1573 922...... 4268 36...... 1573 574...... 6218 Proposed Rules: 39...... 1573 17 CFR 582...... 6218 552...... 5481 2590...... 1421 72...... 1573, 3444 1...... 1375 583...... 6218 4003...... 2857 50...... 5427 140...... 1574 888...... 162 4007...... 2857 150...... 5441 239...... 3734 891...... 6218 4071...... 2857 430 ...... 3314, 4474, 7170 240...... 3734 982...... 6218 431...... 3336 1003...... 4578 270...... 3734 30 CFR 490...... 2207 274...... 3734 Proposed Rules: 719...... 4616 203...... 2851 Proposed Rules: 830...... 1810 18 CFR 941...... 1008 57...... 5526 1040...... 4628 381...... 3451 72...... 5526 1042...... 4628 25 CFR 256...... 1277 1044...... 4629 19 CFR 15...... 7068 870...... 6511 Proposed Rules: 12...... 7399 103...... 3861 914...... 2374 50...... 3886 114...... 7068 931...... 4672 430...... 6768 20 CFR 115...... 7068 944...... 1616 401...... 2805 162...... 7068 948...... 335, 2866 12 CFR 402...... 2805 166...... 7068 31 CFR 35...... 2052 403...... 2805 151...... 3452 201...... 2211 645...... 269 170...... 1576 501...... 2726 207...... 2052 655...... 1375 538...... 2726 225...... 257, 400 Proposed Rules: 26 CFR 540...... 3304 268...... 7703 369...... 314 1 ...... 268, 279, 280, 713, 715, 545...... 2726 303...... 1018 404...... 1059, 5494 723, 1034, 1038, 1040, Proposed Rules: 337...... 1018 416...... 1059, 5494 1837, 2215, 2219, 2241, 10...... 3276 346...... 2052 422...... 5494 2252, 2256, 2811, 2817, 362...... 1018 4661 32 CFR 533...... 2052 21 CFR 7...... 2256, 2821 Proposed Rules: 1501...... 257 10...... 6466 20...... 1040 326...... 1280 VerDate 11-MAY-2000 17:05 Jan 25, 2001 Jkt 194001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\26JACU.LOC pfrm11 PsN: 26JACU Federal Register / Vol. 66, No. 18 / Friday, January 26, 2001 / Reader Aids iii 33 CFR 438...... 424 1310...... 5296 43...... 2117 66...... 8 463...... 424 Proposed Rules: 44...... 2117 95...... 1859 464...... 424 146...... 1421 47...... 2117 467...... 424 48...... 2117 100...... 1044, 1580 46 CFR 117 .....1045, 1262, 1583, 1584, 471...... 424 49...... 2117 1863, 3466, 6474, 7402 745...... 7208 Proposed Rules: 50...... 2117 66...... 2385 52...... 2117, 5349 155...... 3876 41 CFR 165...... 6476, 6477 110...... 1283 53...... 2140 177...... 1859 101-6...... 5362 111...... 1283 Ch. 3 ...... 4220 323...... 4550 101-17...... 5362 Proposed Rules: 101-18...... 5362 47 CFR 2...... 7166 Proposed Rules: 101-19...... 5362 1 ...... 33, 2322, 3499, 6483 7...... 7166 117 ...... 1281, 1923, 6516 101-20...... 5362 2...... 7402, 7579 8...... 2752 167...... 6517 101-33...... 5362 15...... 7402, 7579 10...... 7166 207...... 7436 101-47...... 5362 51...... 2335 11...... 7166 34 CFR 102-71...... 5362 64...... 2322, 7865 12...... 7166 102-72...... 5362 68...... 2322, 7579 39...... 7166 300...... 1474 102-73...... 5362 73 ...... 737, 2336, 3883, 3884, 52...... 2752 361...... 4380, 7250 102-74...... 5362 7589, 7865 931...... 4616 606...... 1262 102-75...... 5362 74...... 3884 970...... 4616 36 CFR 102-76...... 5362 76...... 7410 102-77...... 5362 90...... 33 49 CFR 7...... 6519 102-78...... 5362 301...... 4771 1...... 2827 219...... 1864 102-79...... 5362 Proposed Rules: 40...... 3884, 7590 212...... 3206 102-80...... 5362 1 ...... 86, 341, 1622 213...... 1894 261...... 3206 102-81...... 5362 2 ...... 341, 7438, 7443 229...... 4104 294...... 3244 102-82...... 5362 3...... 1283 231...... 4104 295...... 3206 301...... 6482 5...... 1283 232...... 4104 Proposed Rules: 25...... 3960 390...... 2756 7...... 1069, 6519 42 CFR 36...... 7725, 7867 575...... 3388 8...... 4076 1247...... 1051 38 CFR 54...... 7725, 7867 400...... 6228 61...... 7725 Proposed Rules: Proposed Rules: 411...... 856, 3497 64...... 1622, 7725 10...... 1294 3...... 2376 413 ...... 1599, 3358, 3497 65...... 7725 171...... 6942 416...... 4674 69...... 7725, 7867 172...... 6942 40 CFR 422...... 3358 73 ...... 2395, 2396, 7606, 7607, 173...... 6942 9...... 3770, 6481, 424...... 856 7872 174...... 2870 31...... 3782 430...... 6228 90...... 86, 7443 177...... 2870, 6942 35 ...... 1726, 2823, 3782 431...... 2490, 6228 101...... 7607 178...... 6942 52 ...... 8, 586, 634, 666, 730, 433...... 2490 214...... 1930 1046, 1866, 1868, 1871 434...... 6228 48 CFR 229...... 136 63 ...... 1263, 1584, 3180, 6922 435 ...... 2316, 2490, 6228 Ch. I...... 2116, 2141, 5352 385...... 2767 69...... 5002 436...... 2490 0 390...... 2767 70...... 16 438...... 6228 1...... 1117, 2140 398...... 2767 80...... 5002 440...... 6228 2...... 2117 534...... 6527 81...... 1268 441...... 7148 3...... 2117 554...... 6535 82...... 1462 447...... 3148, 6228 4...... 2117 567...... 90 86...... 5002 457...... 2490 5...... 2117 571...... 968, 3527 136...... 3466 482...... 4674 6...... 2117 573...... 6535 141 ...... 2273, 3466, 3466, 6922 483...... 7148 7...... 2117 576...... 6535 142...... 3770, 6922 485...... 4674 8...... 2117 591...... 90 143...... 3466 489...... 1599, 3497 9...... 2117 592...... 90 180 ...... 296, 298, 1242, 1592, Proposed Rules: 11...... 2117 594...... 90 1875, 2308 413...... 3377 13...... 2117 50 CFR 232...... 4550 422...... 7593 14...... 2117 271 ...... 22, 23, 28, 33, 733 489...... 7593 15...... 2117 13...... 6483 372...... 4500 17...... 2117 17...... 2828, 6483 435...... 6850 43 CFR 19...... 2117, 2140 18...... 1901 745...... 1206, 1726 3100...... 1883 22 ...... 2117, 2140, 5349 20...... 737, 1052 1610...... 1050 3106...... 1883 23...... 2117 86...... 5282 Proposed Rules: 3108...... 1883 24...... 2117 223...... 1601 2...... 2870 3130...... 1883 26...... 2117 229...... 2336, 5489 52 ...... 1796, 1925, 1927, 4756, 3160...... 1883 27...... 2117 600...... 2338 6524 3162...... 1883 28...... 2117 622...... 7591 63...... 1618 3165...... 1883 29...... 2117 635...... 55, 1907 70...... 84, 85 30...... 2136 660...... 2338 122...... 2960, 5524 44 CFR 31...... 2117 679 ...... 742, 1375, 3502, 7276, 123...... 4768 64...... 2825 32...... 2117 7327 136...... 3526 65...... 1600 33...... 2117 Proposed Rules: 141...... 3526 Proposed Rules: 34...... 2117 17 ...... 345, 1295, 1628, 1631, 143...... 3526 67...... 1618 35...... 2117 1633, 3964, 4782, 4783 271...... 85, 86 36...... 2117 216...... 2872 300...... 2380 45 CFR 37...... 2117 229...... 6549 412...... 2960, 5524 46...... 3878 39...... 2117 648...... 91, 1634 413...... 424 146...... 1378 42 ...... 2117, 2136, 2137, 2139, 660...... 1945, 2873 433...... 424 303...... 8074 2140 679...... 3976 VerDate 11-MAY-2000 17:05 Jan 25, 2001 Jkt 194001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4712 E:\FR\FM\26JACU.LOC pfrm11 PsN: 26JACU iv Federal Register / Vol. 66, No. 18 / Friday, January 26, 2001 / Reader Aids REMINDERS by 1-30-01; published standards; comments due 12-1-00 by 1-29-01; published 11- The items in this list were COMMENTS DUE NEXT 28-00 editorially compiled as an aid WEEK Toxic chemical release to Federal Register users. reporting; community-right- INTERIOR DEPARTMENT to-know— Inclusion or exclusion from AGRICULTURE Fish and Wildlife Service this list has no legal DEPARTMENT Diisononyl phthalate Endangered and threatened category; comments significance. Animal and Plant Health species: due by 2-2-01; Inspection Service Tidewater goby; northern published 11-21-00 Animal welfare: populations; comments RULES GOING INTO FEDERAL due by 2-2-01; published Dogs intended for hunting, 1-3-01 EFFECT JANUARY 26, breeding, or security COMMUNICATIONS 2001 purposes; dealer licensing COMMISSION INTERIOR DEPARTMENT and inspection Radio and television Surface Mining Reclamation broadcasting: and Enforcement Office ENVIRONMENTAL requirements; comments PROTECTION AGENCY due by 2-2-01; published Personal attack and political Permanent program and 12-4-00 editorial rules; repeal or abandoned mine land Air quality implementation Interstate transportation of modification; comments reclamation plan plans; approval and animal products due by 1-31-01; published submissions: promulgation; various (quarantine): 10-11-00 West Virginia; comments States: Brucellosis in cattle— Radio stations; table of due by 2-2-01; published Connecticut, Massachusetts, State and area assignments: 1-3-01 and Rhode Island; classifications; North Carolina and Virginia; JUSTICE DEPARTMENT published 12-27-00 comments due by 2-2- comments due by 1-29- Immigration and HEALTH AND HUMAN 01; published 12-4-00 01; published 12-19-00 Naturalization Service SERVICES DEPARTMENT AGRICULTURE FEDERAL DEPOSIT Immigration: Child Support Enforcement DEPARTMENT INSURANCE CORPORATION Deportation proceedings; Office Food Safety and Inspection Non-complex institutions; relief for certain aliens; Child support enforcement Service simplified capital framework; comments due by 1-29- program: Meat and poultry inspection: comments due by 2-1-01; 01; published 11-30-00 published 11-3-00 JUSTICE DEPARTMENT National Medical Support On-line antimicrobial Notice; child support reprocessing of pre-chill FEDERAL RESERVE Parole Commission orders; health care poultry carcasses; SYSTEM Federal prisoners; paroling coverage provisions; performance standards; Bank holding companies and and releasing, etc.: published 12-27-00 comments due by 1-30- change in bank control District of Columbia Code— 01; published 12-1-00 HEALTH AND HUMAN (Regulation Y): Supervision of released SERVICES DEPARTMENT ENVIRONMENTAL Financial subsidiaries; prisoners serving terms PROTECTION AGENCY comments due by 2-2-01; of supervised release; Food and Drug Air pollution control: published 1-3-01 comments due by 1-30- Administration Interstate ozone transport Non-complex institutions; 01; published 11-24-00 Human drugs: reduction— simplified capital framework; TRANSPORTATION Total parenteral nutrition; Nitrogen oxides budget comments due by 2-1-01; DEPARTMENT aluminum in large and trading program; published 11-3-00 Coast Guard small volume parenterals; Section 126 petitions; FEDERAL TRADE Pollution, etc.: labeling requirements; findings of significant COMMISSION Marine casualties; reporting published 1-26-00 contribution and Fair Credit Reporting Act: requirements; comments rulemaking; comments due by 1-31-01; published LABOR DEPARTMENT Information sharing with due by 1-30-01; 11-2-00 Pension and Welfare published 12-21-00 affiliates; interpretations; Benefits Administration comments due by 1-31- Ports and waterways safety: State operating permits Gulf of Mexico; shipping Group health plans; access, 01; published 12-22-00 programs—- safety fairways and portability, and renewability Textile Fiber Products Washington; comments anchorage areas; requirements: Identification Act: due by 2-1-01; comments due by 1-29- National Medical Support published 1-2-01 Synterra; new generic fiber 01; published 12-28-00 Notice; child support Washington; comments name and definition; comments due by 1-29- TRANSPORTATION orders; health care due by 2-1-01; DEPARTMENT provisions; published 12- published 1-2-01 01; published 11-17-00 27-00 Federal Aviation Hazardous waste program HEALTH AND HUMAN Administration SERVICES DEPARTMENT TRANSPORTATION authorizations: Aircraft: Health Care Financing DEPARTMENT Florida; comments due by Life-limited aircraft parts; Administration Federal Aviation 2-1-01; published 1-2-01 safe disposition; Administration Louisiana; comments due by Medicare: comments due by 1-30- Airworthiness directives: 2-1-01; published 1-2-01 Inpatient rehabilitation 01; published 10-2-00 Oklahoma; comments due facilities; prospectiive Eurocopter Deutschland Airworthiness directives: by 2-1-01; published 1-2- payment system; GMBH; published 12-22- Airbus; comments due by 1- 01 comments due by 2-1-01; 00 29-01; published 12-28-00 Superfund program: published 12-27-00 Boeing; comments due by Airworthiness standards: National oil and hazardous HEALTH AND HUMAN 1-29-01; published 11-28- Special conditions— substances contingency SERVICES DEPARTMENT 00 Sino Swearingen Model plan— Protection of research Bombardier; comments due SJ30-2 airplane; National priorities list misconduct whistleblowers; by 1-30-01; published 1-5- published 12-27-00 update; comments due Public Health Service 01 VerDate 11-MAY-2000 17:05 Jan 25, 2001 Jkt 194001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\26JACU.LOC pfrm11 PsN: 26JACU Federal Register / Vol. 66, No. 18 / Friday, January 26, 2001 / Reader Aids v Cessna Aircraft Co.; TRANSPORTATION TREASURY DEPARTMENT Second Session has been comments due by 2-2-01; DEPARTMENT Comptroller of the Currency completed and will resume published 12-29-00 National Highway Traffic Non-complex institutions; when bills are enacted into Safety Administration public law during the next DG Flugzeugbau GmbH; simplified capital framework; session of Congress. comments due by 2-1-01; Importation of vehicles and comments due by 2-1-01; published 12-27-00 equipment subject to published 11-3-00 Federal safety, bumper, and TREASURY DEPARTMENT A cumulative List of Public Dornier; comments due by theft prevention standards: Internal Revenue Service Laws was published in Part II 2-1-01; published 1-2-01 Vehicles originally Procedure and administration: of the Federal Register on Eurocopter France; manufactured for sale in Subsidiary corporations; January 16, 2001. comments due by 1-30- Canada; importation entity classification, 01; published 12-1-00 expedited; comments due elective changes (check by 2-1-01; published 1-2- the box regulations); McDonnell Douglas; 01 comments due by 2-2-01; Public Laws Electronic comments due by 1-29- Motor vehicle safety published 1-17-01 Notification Service 01; published 11-28-00 standards: TREASURY DEPARTMENT (PENS) Tire labeling improvement to PIAGGIO AERO Financial subsidiaries; assist in identifying tires INDUSTRIES S.p.A.; comments due by 2-2-01; that are being recalled; comments due by 2-3-01; published 1-3-01 comments due by 1-30- Note: PENS will resume published 1-2-01 TREASURY DEPARTMENT 01; published 12-1-00 service when bills are enacted Airworthiness standards: TRANSPORTATION Thrift Supervision Office into law during the next Non-complex institutions; Special conditions— DEPARTMENT session of Congress. Research and Special simplified capital framework; Dessault Aviation Mystere- comments due by 2-1-01; Programs Administration This service is strictly for E- Falcon 50 airplanes; published 11-3-00 Hazardous materials mail notification of new laws. comments due by 2-2- transportation: The text of laws is not 01; published 1-3-01 Registration fees; temporary LIST OF PUBLIC LAWS available through this service. Restricted areas; comments reduction; comments due PENS cannot respond to due by 2-1-01; published by 2-2-01; published 12-7- Note: The List of Public Laws specific inquiries sent to this 12-18-00 00 for the 106th Congress, address. VerDate 11-MAY-2000 17:05 Jan 25, 2001 Jkt 194001 PO 00000 Frm 00005 Fmt 4712 Sfmt 4711 E:\FR\FM\26JACU.LOC pfrm11 PsN: 26JACU